*

The Honorable Peter C. Economus, United States District Judge for

the Northern District of Ohio, sitting by designation. 

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0015A (6th Cir.)

File Name: 04a0015a.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

WENDY MCMULLEN,

Plaintiff-Appellant,

v.

MEIJER, INCORPORATED,

Defendant-Appellee.

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No. 01-1211

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 99-71206—Anna Diggs Taylor, District Judge.

Argued: February 7, 2003

Decided and Filed: January 14, 2004 

Before: GILMAN and GIBBONS, Circuit Judges;

ECONOMUS, District Judge.*

_________________

COUNSEL

ARGUED: Patrick M. Kirby, Flint, Michigan, for Appellant.

Jeffrey Scott Rueble, ASSISTANT GENERAL COUNSEL,

2 McMullen v. Meijer, Inc. No. 01-1211

MEIJER, Grand Rapids, Michigan, for Appellee.

ON BRIEF: Patrick M. Kirby, Flint, Michigan, for

Appellant. Jeffrey Scott Rueble, ASSISTANT GENERAL

COUNSEL, MEIJER,GrandRapids, Michigan, for Appellee.

_____________________

AMENDED OPINION

_____________________

PER CURIAM. Appellant Wendy McMullen brought this

action against her former employer, Meijer Inc., seeking a

declaratory judgment that her Title VII claims are not subject

to the mandatory pre-dispute arbitration agreement she signed

upon accepting employment with Meijer. Although

McMullen acknowledges that the terms of the arbitration

agreement cover her statutory employment discrimination

claims, she contends that the arbitration agreement is

unenforceable with regard to her Title VII claims because it

grants Meijer exclusive control over the pool of potential

arbitrators from which the arbitrator is selected.

After initially denying Meijer’ssummary judgment motion,

the district court reconsidered and granted summary judgment

in favor of Meijer in light of a perceived change in controlling

case law. McMullen appeals the grant of summary judgment

in favor of Meijer and also the denial of her summary

judgment motion. We reverse both rulings because we find

that Meijer’s exclusive control over the pool of potential

arbitrators prevents McMullen from effectively vindicating

her statutory rights. However, we also find that an issue

remains as to whether the arbitrator-selection provision can be

severed from the rest of the arbitration agreement. Therefore,

we remand to the district court for further proceedings

consistent with this opinion.
No. 01-1211 McMullen v. Meijer, Inc. 3

1

The American Arbitration Association, a non-profit public service

organization, assists in the design of alternative dispute resolution systems

for corporations, unions, government agencies, law firms and the courts.

I.

In 1989, Meijer hired McMullen as a store detective at its

store in Flint, Michigan. McMullen faced discipline in 1998

for an incident involving her pursuit and confrontation of a

juvenile shoplifter in the store parking lot. Meijer offered

McMullen a choice between demotion with a 33% decrease

in salary, or outright termination. McMullen chose

termination and decided to challenge her discipline through

Meijer’s termination appeal procedure (TAP). 

The terms of the TAP establish a two-step procedure

requiring binding arbitration of all disputes arising out of

termination of employment. The TAP expressly incorporates

the Employment Dispute Resolution Rules of the American

Arbitration Association (AAA).1 Further, the TAP

specifically asserts that:

This procedure is intended to be the sole and exclusive

remedy and forum for all claims arising out of or relating

to an eligible team member’s termination from

employment.

The decision and award of the arbitrator is final and

binding between the parties as to all claims arising out of

or relating to an [sic] team member’s termination from

employment which were or could have been raised at any

step in this procedure and judgment may be entered on

the award in any circuit court or other court of competent

jurisdiction.

Contemporaneous to hiring McMullen, Meijer had

provided her with a copy of an employee handbook

describing both the TAP and the company’s policy of

terminating employees only with “just cause.” McMullen had

4 McMullen v. Meijer, Inc. No. 01-1211

2

At the time McMullen initiated the TAP process, Meijer maintained

a standing panel of potential arbitrators that it used for every arbitration

in which it participated in the state of Michigan.

3

As a member of Meijer’s standing panel of potential arbitrators in

Michigan, Daniel had served as the arbitrator in seven arbitrations

involving Meijer by the time McMullen initiated the TAP process.

then signed a form acknowledging receipt of the handbook

and assenting to the company’s policies and procedures.

Upon instituting termination appeal proceedings,

McMullen argued that her discharge had been motivated by

an intent to discriminate against her on the basis of her

gender. Meijer denied her appeal internally and informed her

that, “[i]f you would like to contest the results of this further

review, you must request an arbitration hearing . . . .”

Subsequently, McMullen signed and filed the necessary

paperwork to begin the arbitral process.

Once an arbitration hearing is requested, the TAP grants

Meijer the right to unilaterally select a pool of at least five

potential arbitrators, each of whom must be: (1) an attorney,

(2) unemployed by and unaffiliated with the company,

(3) generally recognized as a neutral and experienced labor

and employment arbitrator, and (4) listed on the rosters of the

Federal Mediation and Conciliation Service (FMCS) or the

AAA, as well as other arbitration rosters.2 Then, counsel for

the company and the aggrieved employee mutually select an

arbitrator from that pool by alternatively striking names until

only one remains. On August 20, 1998, counsel for

McMullen and Meijer, following this procedure, selected

arbitrator William Daniel to hear McMullen’s appeal.3

Several months later, and only one day prior to the

scheduled date of the arbitration hearing, McMullen filed this

declaratory judgment action in state court challenging the

fairness of the TAP’s arbitrator-selection process. Asserting

federal question jurisdiction, Meijer removed the action to the
No. 01-1211 McMullen v. Meijer, Inc. 5

4

The district judge’s decisions on the motions for summary judgment

consisted of brief oral rulings from the bench, rather than written

opinions. With regard to the propriety of issuing oral rulings on summary

judgment motions, unaccompanied by written findings, this court

previously has noted:

This reviewing court, and more importantly, the parties, are

much better served when, as is the custom in this circuit, the

district court prepares a written opinion explaining its ruling and

the reasoning, factual and legal, in support, especially when the

ruling disposes of the case in a final judgment.

Peck v. Bridgeport Machines, Inc., 237 F.3d 614, 617 (6th Cir. 2001).

This observation is equally appropriate here.

United States District Court for the Eastern District of

Michigan.

On December 13, 1999, Meijer brought a motion to compel

arbitration and for summary judgment. On March 23, 2000,

the district court denied both motions from the bench. The

court’s ruling indicated that the procedures used by Meijer to

select an arbitrator did not comport with the requisite level of

fairness for such mandatory-arbitration contracts to be

binding. In conjunction with its decision, the court criticized

the extent of control exercised by Meijer over the arbitral

panel. The court also stated, “I’m sorry that there were not

cross motions in the case. There weren’t, so we’ll still have

this case alive here.” 

On September 21, 2000, McMullen moved for summary

judgment. On October 2, 2000, Meijer moved for

reconsideration of its earlier motions based on this court’s

intervening decision in Haskins v. Prudential Insurance

Company of America, 230 F.3d 231 (6th Cir. 2000). The

district court held a hearing on the motions on November 27,

2000, and subsequently denied McMullen’s motion for

summary judgment, granted Meijer’s motion for

reconsideration, and, upon reconsideration, granted Meijer’s

motions for summary judgment and to compel arbitration.4

6 McMullen v. Meijer, Inc. No. 01-1211

II.

The district court’s decision to grant Meijer’s motion for

summary judgment is reviewed de novo, Smith v. Ameritech,

129 F.3d 857, 863 (6th Cir. 1997), as is the district court’s

decision to grant Meijer’s motion to compel arbitration,

Wiepking v. Prudential-Bache Securities, Inc., 940 F.2d 996,

998 (6th Cir. 1991). Similarly, the district court’s decisions

regarding the existence of a valid arbitration agreement and

the arbitrability of a particular dispute are reviewed de novo.

Floss v. Ryan’s Family Steakhouses, Inc., 211 F.3d 306, 311

(6th Cir. 2000). A district court’s denial of summary

judgment is an interlocutory order that is not ordinarily

appealable, but when the appeal from a denial of summary

judgment is presented together with an appeal from a grant of

summary judgment, we have jurisdiction to review the denial.

Thomas v. United States, 166 F.3d 825, 828 (6th Cir. 1999).

When a district court denies a motion for summary judgment

because it determines that there exists a genuine issue of

material fact, we review the denial only for an abuse of

discretion. Garner v. Memphis Police Dep’t, 8 F.3d 358, 363

(6th Cir. 1993). When, however, the district court denies

summary judgment based solely upon legal grounds, we

review the denial de novo. Id. Because the district court

denied McMullen’s summary judgment motion solely upon

legal grounds, we review this denial de novo.

The Supreme Court has held that agreements to arbitrate

employment disputes as a condition of employment are

generally enforceable under the Federal Arbitration Act,

9 U.S.C. § 1 et seq. (FAA). Circuit City Stores, Inc. v.

Adams, 532 U.S. 105, 109 (2001). This court has consistently

upheld the validity of pre-dispute mandatory arbitration

agreements. Haskins, 230 F.3d at 239; Willis v. Dean Witter

Reynolds, Inc., 948 F.2d 305, 310 (6th Cir. 1991). It is well

settled that judicial protection of pre-dispute arbitral

agreements extends to agreements to arbitrate statutory

employment discrimination claims. Gilmer v.

Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991);
No. 01-1211 McMullen v. Meijer, Inc. 7

Willis, 948 F.2d at 312. Arbitration of statutory claims is

appropriate because “[b]y agreeing to arbitrate a statutory

claim, a party does not forgo the substantive rights afforded

by the statute; it only submits to their resolution in an arbitral,

rather than a judicial, forum.” Gilmer, 500 U.S. at 26

(quoting Mitsubishi Motors Corp. v. Soler

Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985)).

Notwithstanding a general policy favoring such

agreements, there are circumstances under which courts will

not enforce pre-dispute mandatory arbitration agreements

with regard to statutory employment discrimination claims.

In Floss, we held that, “even if arbitration is generally a

suitable forum for resolving a particular statutory claim, the

specific arbitral forum provided under an arbitration

agreement must nevertheless allow for the effective

vindication of that claim.” Floss, 211 F.3d at 313. The

central issue in this case is whether Meijer’s exclusive control

over the pool of potential arbitrators renders the arbitral forum

so fundamentally unfair as to prevent McMullen from

effectively vindicating herstatutory rights, thereby precluding

enforcement of the pre-dispute agreement to arbitrate the

statutory claims.

Before reaching this central issue, however, we must

address two preliminary arguments made by Meijer. First,

Meijer argues that, regardless of the viability of the predispute agreement, McMullen should be compelled to

arbitrate her claims because she voluntarily and knowingly

agreed to arbitration after the dispute had occurred. When

Meijer internally reviewed McMullen’s claim after her

termination, it issued a “results of review” statement on a

Meijer “Termination Appeal Form.” The form states that to

challenge the termination, an employee must request

arbitration. Part 3 of the form states, “I request that my case

be submitted to arbitration in accordance with the Company’s

Termination Appeal Procedure.” Beneath this statement, the

form is signed solely by Wendy McMullen. 

8 McMullen v. Meijer, Inc. No. 01-1211

McMullen did not agree to waive any right to sue by

signing this form. The form was merely an administrative

step required to initiate the arbitration process that McMullen

agreed to upon her hire. The form itself does not constitute an

arbitration agreement because it contains no promise not to

sue on behalf of either party. Moreover, the form does not

constitute an enforceable agreement because it lacks

contractual consideration. It is an elemental tenet of

Michigan contract law, which applies here, that past

consideration cannot serve as legal consideration for a

subsequent promise. Shirey v. Camden, 22 N.W.2d 98, 102

(Mich. 1946). Meijer did not offer McMullen any new

consideration in return for signing the form, which Meijer did

not sign. 

Meijer’s second preliminary argument is that our decision

in Haskins prevents us from considering whether a predispute arbitration agreement allows for the effective

vindication of statutory claims. Meijer notes that we decided

Haskins after we decided Floss. In Haskins, this court held

that “absent a showing of fraud, duress, mistake, or some

other ground upon which a contract may be voided, a court

must enforce a contractual agreement to arbitrate.” Haskins,

230 F.3d at 239. Meijer requests that we construe Haskins

narrowly, arguing that McMullen can only escape from her

agreement to arbitrate by showing “fraud, duress, or mistake.”

In other words, Meijer contends that McMullen cannot ask a

court to “inquire into the fairness of the terms of these

arbitration contracts and to void them because one of their

terms - the method of selecting the arbitrator - is allegedly

unfair to her.” The district court concurred with Meijer,

opining that “Haskins has substantially narrowed the grounds

on which one may challenge a contractual agreement to

arbitrate.” Consequently, the district court granted Meijer’s

motion for reconsideration.

The district court’s ruling, however, overstates the impact

of Haskins on the agreement signed by McMullen. In

Haskins, the plaintiff signed an agreement with a securities
No. 01-1211 McMullen v. Meijer, Inc. 9

5

The “effective vindication” test referenced in Floss derives from

Gilmer, where the Supreme Court proclaimed, “[S]o long as the

prospective litigant effectively may vindicate [his or her] statutory cause

of action in the arbitral forum, the statute will continue to serve both its

remedial and deterrent function.” Gilmer, 500 U.S. at 28 (quoting

Mitsubishi Motors Corp., 473 U.S. at 637).

6

Although the Rembert decision predated Haskins, it did not predate

Beauchamp v. Great West Life Assurance Co., 918 F.Supp. 1091 (E.D.

Mich. 1996), the underlying case on which Haskins rested its holding.

Indeed, the language in Haskins stating that “absent a showing of fraud,

duress, mistake or some other ground upon which a contract may be

dealers’ association binding him to arbitrate any disputes

arising with his employer. The plaintiff’s challenge to the

agreement focused on his ignorance as to the existence of the

mandatoryarbitration agreement, rather than on any perceived

unfairness in the arbitration process. Haskins, 230 F.3d at

239-40. The Haskins court adopted a contracts-law approach

to determining the validity of the agreement, holding that,

despite plaintiff’s ignorance, the agreement was enforceable

absent fraud, mistake, duress, or another contractual ground

for challenge.

In arguing that McMullen can only escape arbitration by

showing fraud, mistake, or duress, Meijer ignores the

remaining portion of the holding in Haskins, where this court

made an allowance for “some other ground upon which a

contract may be voided.” Haskins, 230 F.3d at 239. This

language sufficientlyencompasses the “effective vindication”

analysis prescribed by the United States Supreme Court and

endorsed by this circuit in Floss.

5

 Indeed, subsequent cases

have arrived at this precise conclusion, construing the Floss

“effective vindication” analysis as another ground on which

a mandatory arbitration agreement can be voided. See

Cooper v. MRM Inv. Co., 199 F.Supp.2d 771, 775 (M.D.

Tenn. 2002); French v. First Union Sec., Inc., 209 F. Supp.

2d 818, 826 (M.D. Tenn. 2002); Rembert v. Ryan’s

Steakhouse, 596 N.W.2d 208, 218 (Mich. Ct. App. 1999).6

10 McMullen v. Meijer, Inc. No. 01-1211

voided, a court must enforce a contractual agreement to arbitrate,” is

adopted from Beauchamp, 918 F.Supp. at 1098. Thus, the Rembert

court’s conclusion that Beauchamp permits a fairness challenge to an

arbitration agreement applies with equal force to Haskins.

For example, in Cooper, the court extensively discussed

Haskinsin the course of assessing the validity of a pre-dispute

agreement to arbitrate signed by a restaurant employee. In so

doing, the court essentially divided the Haskins analysis into

two separate stages. First, it undertook the Haskins

contractual analysis that Meijer promotes in the instant appeal

as the only means for invalidating such an agreement.

Secondly, contrary to the position Meijer espouses, the court

held that:

Even if this Court found no contractual defenses to the

enforcement of the [arbitration agreement], Plaintiff’s

substantive rights are affected by the agreement. Courts

have recognized that, although arbitration agreements are

generally favored, they will not be enforced if they affect

an individual’s substantive rights. Gilmer, 500 U.S. at

28, 111 S.Ct. 1647. Where an individual is unable to

vindicate his or her rights because of an obstacle erected

by an arbitration agreement, the court may not enforce

that arbitration agreement.

Cooper, 199 F. Supp. 2d at 780-81.

Furthermore, even if Meijer’s interpretation of Haskins

were correct, Haskins has been superseded by our en banc

decision in Morrison v. Circuit City Stores, Inc., 317 F.3d 646

(6th Cir. 2003). As we held in Morrison, “[t]he Supreme

Court has made clear that statutory rights, such as those

created by Title VII, may be subject to mandatory arbitration

only if the arbitral forum permits the effective vindication of

those rights.” 317 F.3d at 658. “Under Gilmer, the arbitral

forum must provide litigants with an effective substitute for

the judicial forum. . . .” Id. at 659. 
No. 01-1211 McMullen v. Meijer, Inc. 11

Therefore, we must decide whether Meijer’s TAP provides

McMullen with an effective substitute for the judicial forum

to pursue her Title VII claims. The TAP adopted by Meijer

is commendably fair except in one important respect: it

grants Meijer unilateral control over the pool of potential

arbitrators. 

McMullen relies heavily on Hooters of America v. Phillips,

173 F.3d 933 (4th Cir. 1999), to support her argument that

Meijer’s TAP is so unfair that it does not provide an effective

means of vindicating her Title VII rights. In Hooters, the

Fourth Circuit invalidated an arbitration agreement that it

found “so one-sided that [its] only possible purpose [was] to

undermine the neutrality of the proceeding.” Id. at 938. The

Hooters court stated, “By promulgating [a] system of warped

rules, Hooters so skewed the process in its favor that Phillips

has been denied arbitration in any meaningful sense of the

word.” Id. at 941. 

Many of the arbitration procedures criticized by the Fourth

Circuit in Hooters were patently one-sided. For example, the

arbitration agreement at issue in Hooters required employees

to file a notice of the particulars of their claims, as well as a

list of all fact witnesses along with a summary of their

knowledge, while the company was required to do neither.

Hooters, 173 F.3d at 938-39. The company could expand the

scope of arbitration to any matter, but the employee could

only arbitrate matters asserted in the notice of claim. The

company, but not the employee, could create a record or

transcript of the proceeding. The company also retained the

sole right to cancel the arbitration agreement or bring suit in

court to vacate or modify the arbitration award. Finally, the

company could unilaterally modify the rules at any time

without notice to the employee, even in the middle of an

arbitration hearing. Id.

Moreover, the selection process in Hooters “[was] crafted

to ensure a biased decisionmaker.” Hooters, 173 F.3d at 938.

12 McMullen v. Meijer, Inc. No. 01-1211

The Hooters court described the selection procedure as

follows:

The employee and Hooters each select an arbitrator, and

the two arbitrators in turn select a third. Good enough,

except that the employee’s arbitrator and the third

arbitrator must be selected from a list of arbitrators

created exclusively by Hooters. This gives Hooters

control over the entire panel and places no limits

whatsoever on whom Hooters can put on the list. Under

the rules, Hooters is free to devise lists of partial

arbitrators who have existing relationships, financial or

familial, with Hooters and its management. In fact, the

rules do not even prohibit Hooters from placing its

managers themselves on the list.

Id. at 938-39. 

In addition to Hooters, McMullen cites our opinion in Floss

in support of her argument that Meijer’s TAP should not be

enforced in this case. In Floss, this court invalidated an

arbitration agreement that gave a third-party arbitration

service, EDSI, complete discretion over the procedures and

rules to be used during arbitration hearings. Floss, 211 F.3d

at 310. Because EDSI could change those rules without

notice, and without the consent of the claimant, we held that

the agreement to arbitrate lacked consideration and mutuality

of obligation. Id. at 315-16.

Our opinion in Floss also criticized, albeit in dicta, the

fairnessofEDSI’s arbitrator-selection process. Under EDSI’s

rules, three “adjudicators” were selected from three separate

selection pools to preside over the arbitration hearing. The

first of these pools consisted of supervisors and managers

from another EDSI signatory company; the second consisted

of employees from another signatory; and the third contained

attorneys, retired judges, and other “competent professional

persons.” Id. at 313-14 n.7. As described by the Floss court:
No. 01-1211 McMullen v. Meijer, Inc. 13

The selection process begins with EDSI furnishing both

parties a list of potential adjudicators organized

according to each selection pool. Information regarding

each adjudicator’s recent employment historyand related

biographical information is provided to the parties along

with this list. The parties may then move to strike any

adjudicator for cause. Following the removal of any

adjudicators for cause, the parties each strike a name

from the list until only one name remains from each

selection pool.

Id. 

Although this process appears facially reasonable, we

expressed our “serious reservations as to whether the arbitral

forum provided under the current version of the EDSI Rules

and Procedures is suitable for the resolution of statutory

claims.” Id. at 314. Specifically, we observed that “the

neutrality of the forum is far from clear in light of the

uncertain relationship between [the employer] and EDSI.” Id.

The record did not reflect whether EDSI, in contrast to the

AAA, was a for-profit entity, but we questioned whether an

alleged financial relationship between the employer company

and EDSI, compounded by the latter’s pecuniary interest in

retaining its arbitration service contract, might foster bias in

favor of the employer client. Most significantly to the present

case, we found in Floss that “[i]n light of EDSI’s role in

determining the pool of potential arbitrators, any such bias

would render the arbitral forum fundamentally unfair.” Id.

(citing Cole v. Burns Int’l Sec. Servs., 105 F.3d 1465, 1482

(D.C. Cir. 1997) (“At a minimum, statutory rights include

both a substantive protection and access to a neutral forum in

which to enforce those protections.”)).

Meijer’s TAP is plainly more even-handed than the

arbitration agreement at issue in Hooters, which allowed for

unfettered employer control over the potential arbitral panel

and contained a myriad of unilaterally biased clauses and

rules, giving Hooters an advantage in every aspect of the

14 McMullen v. Meijer, Inc. No. 01-1211

arbitration. But the arbitrator-selection process provided for

under Meijer’s TAP is less fair than the arbitrator-selection

process described in Floss as “fundamentally unfair.” Id. In

Floss, a third-party company had exclusive control over the

pool of potential arbitrators, while in the present case the

employer has exclusive control over the selection pool. The

Floss court was concerned that the company that selected the

pool of potential arbitrators might be biased in favor of the

employer, while here the company that selects the pool of

potential arbitrators is the employer.

The type of control exercised by Meijer over the potential

arbitrators is analogous to the “exclusive[] . . . control over

the entire panel” exercised by the employer in Hooters and

rejected by the Fourth Circuit. Hooters, 173 F.3d at 939.

Furthermore, the arbitrator-selection procedure used by

Meijer allows it to create the type of symbiotic relationship

with its arbitrators that we feared would promulgate bias in

Floss. Floss, 211 F.3d at 314. The risk of bias inherent in

Meijer’s procedure is demonstrated by the fact that Meijer

uses the same panel of five to seven arbitrators in each

arbitration hearing in which it participates in the state of

Michigan. We find Meijer’s exclusive control over the pool

of potential arbitrators particularly problematic because

Meijer could easily have adopted a procedure in which an

unbiased third-party, such as the AAA or FMCS, selected the

pool of potential arbitrators.

Meijer argues that the bias which McMullen fears will

manifest itself during her arbitration hearing is, at this point,

merely potential bias. This is not an insignificant argument.

The Supreme Court, when presented with an allegation of

hypothetical bias, “decline[d] to indulge the presumption that

the parties and arbitral body conducting a proceeding will be

unable or unwilling to retain competent, conscientious and

impartial arbitrators.” Gilmer, 500 U.S. at 30 (quoting

Mitsubishi, 473 U.S. at 634). McMullen has not asserted that

the particular arbitrator selected to hear her claim is biased
No. 01-1211 McMullen v. Meijer, Inc. 15

7Meijer also argues that Gilmer clearly establishes that the preferred

method of challenging allegations of bias is to pursue the underlying

claims through the arbitration process and then seek review only “[w]here

there was evident partiality or corruption in the arbitrators.” Gilmer, 500

U.S. at 30 (quoting 9 U.S.C. § 10(b)). While this is true for allegations of

potential or hypothetical bias among the arbitrators, it does not apply to

an allegation, as is present here, that the arbitrator-selection process is

fundamentally unfair. The Hooters court and the Floss court both

recognized that procedural unfairness inherent in an arbitration agreement

may be challenged before the arbitration. When the process used to select

the arbitrator is fundamentally unfair, as in this case, the arbitral forum is

not an effective substitute for a judicial forum, and there is no need to

present separate evidence of bias or corruption in the particular arbitrator

selected.

against her or that his arbitration decisions in the past have

unreasonably favored Meijer. 

McMullen’s complaint here, however, goes beyond an

allegation of a potentially biased arbitrator because McMullen

cites a lack of fairness inherent in the arbitrator-selection

process. The Supreme Court in Gilmer recognized that fair

and impartial “arbitration rules . . . provide protections against

biased panels.” Id. Meijer’s TAP contains many of the rules

acclaimed by Gilmer for their ability to guard against

potential arbitral bias, but unlike the rules considered in

Gilmer, Meijer’s TAP grants one party to the arbitration

unilateral control over the pool of potential arbitrators. This

procedure prevents Meijer’s TAP from being an effective

substitute for a judicial forum because it inherently lacks

neutrality.7

Our conclusion that Meijer’s TAP is not an effective

substitute for a judicial forum dictates that McMullen’s Title

VII claims are not subject to the TAP arbitrator-selection

provision. The question remains whether Meijer’s TAP is

thus unenforceable in its entirety or whether the selection

procedure can be severed and replaced with an appropriate

equitable process.

16 McMullen v. Meijer, Inc. No. 01-1211

The parties’ appellate briefs do not address the issue of

whether invalidation of the arbitrator-selection provision

renders the TAP unenforceable in its entirety. Meijer raised

the issue in a petition for rehearing filed after this court’s

original opinion declared the entire agreement unenforceable,

and McMullen has responded to the petition. Meijer

concedes that the TAP lacks a severability clause. It argues,

however, that the parties’ intent governs the issue of

severability and urges us to find that the TAP’s incorporation

of the Employment Dispute Rules of the AAA evidences an

intent to have an arbitrator selected in accord with the AAA’s

rule providing for selection of an arbitrator from its list when

the parties’ agreement does not include an arbitrator-selection

method. Alternatively, it urges us to direct the district court

to appoint an arbitrator in accord with the Federal Arbitration

Act (FAA) procedure specified in 9 U.S.C. § 5. Finally,

Meijer relies on Chattanooga Mailers’ Union, No. 92 v.

Chattanooga News-Free Press Co., 524 F.2d 1305 (6th Cir.

1975) (abrogation on other grounds recognized by

Bacashihua v. United States Postal Serv., 859 F.2d 402, 404

(6th Cir. 1988)), in which this court enforced an arbitration

provision included in a collective bargaining agreement,

despite the agreement’s inclusion of an allegedly illegal

closed-shop provision and the absence of a severability

clause, and determined that utilization of the arbitratorselection procedure of § 5 was appropriate, given the fact that

the procedure specified in the parties’ agreement was

unworkable at the time.

McMullen responds that the TAP’s specific exclusion of

AAA administration of any arbitration under the TAP negates

any inference that the parties intended application of AAA’s

arbitrator selection rule. She also asserts that Chattanooga

Mailers’ Union is factually dissimilar to this case. She cites

NLRB v. Rockaway News Supply Co., 375 U.S. 71 (1953), and

Michigan case law, which in her view set forth a rule that,

even when a severability clause is present, the agreement is

unenforceable in its entirety when the invalidated provision

is central to the agreement or “so interwoven with all of its
No. 01-1211 McMullen v. Meijer, Inc. 17

terms that it must stand or fall as an entirety.” Id. at 78. The

arbitrator-selection provision is so central, in her view, that its

invalidation requires invalidation of the entire agreement.

In determining whether the TAP should be enforced absent

the invalid arbitrator-selection mechanism and, if it should,

how to select an arbitrator, the parties’ intent is a primary

issue. See generally Morrison, 317 F.3d at 676-77

(interpreting arbitration contract provision as manifesting

parties’ intent to sever invalid terms when construction

unclear under state law, given Supreme Court precedent

requiring resolution of doubt in favor of arbitration); Great

Earth Cos. v. Simons, 288 F.3d 878, 890-91 (6th Cir. 2002)

(finding clause requiring arbitration in New York severable

from remainder of arbitration agreement based on parties’

intent); Chattanooga Mailers’ Union, 524 F.2d at 1315

(requiring arbitration consistent with parties’ intent although

arbitration procedure they selected was unworkable); Brucker

v. McKinlay Transp., Inc., 557 N.W.2d 536, 541 (Mich. 1997)

(refusing to invalidate entire arbitration agreement containing

invalid provision when parties stipulated to arbitration rules);

Samuel D. Begola Servs., Inc. v. Wild Bros., 534 N.W.2d 217,

220 (Mich. Ct. App. 1995) (noting that in determining

severability “the primary consideration is the intention of the

parties” and finding attorney fee provision severable from

rescinded purchase agreements). Yet, in this context, intent

is not the only consideration. Federal policy favoring

arbitration may figure into the analysis, see Morrison, 317

F.3d at 675, 679-80, as may the interplay between state law

and that federal policy, see id. In addition, as Morrison

indicates, reliance on Chattanooga Mailers’ Union is still

appropriate in cases concerning the severability of arbitration

contract provisions. 317 F.3d at 678 n.22.

Here, the parties did not raise any factual issues involving

their intent before the district court and, indeed, did not

address the legal issues surrounding severability at any time

until Meijer’s petition for rehearing was filed. Under these

circumstances, we find it appropriate to remand to the district

18 McMullen v. Meijer, Inc. No. 01-1211

court so that it can determine in the first instance, after full

briefing and development of any necessary additional record,

whether the TAP can be enforced without the impermissible

arbitrator-selection provision. If the district court decides that

the remainder of the agreement can be enforced, it will also

have to determine how an arbitrator should be selected.

III.

For all of these reasons, we reverse the district court’s grant

of summary judgment to Meijer and the district court’s denial

of summary judgment to McMullen. We remand the case to

the district court for further proceedings consistent with this

opinion.