* The Honora ble Pete r C. Economus, Unit ed Sta tes Dist ric t Ju dge f

or the N orthe rn D istrict of O hio, sitting b y design ation.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0015A (6th C ir.) File Name: 04a00 15a.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
W ENDY M C M ULLEN ,

Plaintiff- Appellant

,

v.

M EIJ ER , I

NCORPORATED , Defendant-Appellee. X

- - - -
> , - - N No. 01-1211

Appeal from the United States District Court for the E astern D istrict of Michiga n at Detr oit. No. 99-71206—Anna Diggs Tay lor, District Judge. Argued: February

7, 2003 Decided and Filed: January 14, 2004

Befor e: GILMAN

and GI BBONS, Circuit Judg es; ECONOMUS, District Judge. *

_________________ COUNSEL

ARGUED: Patrick M . Kirby, Flint, Mi chigan , for App ellant. Jeffrey Scott Rueble, ASSISTANT GENERAL COU NS EL, 2 McMullen v. Meijer, Inc. No. 01-1211

MEIJER, Grand Rap ids, Michigan, for App ellee

. ON BRIE F: P atr ick M. Kirby, Flint, Michig an, for Appellan t. Jeffrey Scott Rueble, ASSI STANT GENERAL COU NS EL, MEI

JE R, Grand R apids, Michigan, for Appellee.

_____________________ AMENDED O PINION

_____________________ PER CURIA M. Appellan

t Wendy McMullen

brough t this actionagains t her f

ormer emplo yer, Meij er Inc., s eekin g a declaratory

judgment th at h er T it le V II

claims are not subject to t h e mandatory pr

e-dispute arbitration agreement she sig ned uponaccept

ing empl oyment with Me ijer. Alth ou gh McMull en ac knowledges that the terms of the arbitration agreement

cover her statutory

employment discriminat i on claims, she contends that the arbitration agree me nt is
unen fo rceabl e with reg ard to he r Title VI I cla ims beca use it grants Meijer exclusive control over the pool of potential arbitrators from which the arbitrator is selected.

After initially deny ing Meij er’s summar

y judgment motion, the district c ourt reconsi dered and granted summary judgment infavor of

Meije r in li ght of a percei ved ch ange in controlling
caselaw. McMullen

appeals the grant of

summary judgme

nt in favor of Meijer and also the denial of her summar y judgment motio n. Werevers e both rulings because we find t hat Meijer’ s exclusive

control o ver the p ool of pote ntia l arbitrators prevents McMullen from eff ecti vely vindicating her statutory rights. Ho wever, we also find that an issue remains as to whether the arbitrator-selection provision can be severed from the r

est of the arbitration

agreement. Therefor

e, w e remand t

o the distr

ict cour t for fur ther pro ceedin

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

1 The American Arbitration A ssoci ation, a non-prof it publ ic ser

vice organization, assist s in the desi gn of a lt ern ati ve di spu te res olu ti on s ys tem s for corpo rations, unions, govern ment agenc ies, law firms and the cou rts. I.

In1989, Meijer hir ed McMull en as a st ore dete ctive at i

ts store inFlint, Michigan. McMullen faced discipline in 1998 for an incident involving her pursuit and confront a tion of a juv enile s hoplifter in the store parking lot. Meijer offere d McMullena choice

betwee n demo t ion with a 3 3% decr ease insalary, or outr

ight ter min ation. Mc Mullen chose terminat ion and de cided to cha llenge her di scipl ine th rough Meijer’s termination appeal procedure (TA P).

The terms of

th e TAP establish a two-step procedure requirin g binding arbitration of all disputes arising out of terminationof employment. The TAP expressly incorpora tes the Employ

ment Dispu

te Re solu tion Rules of the American ArbitrationAsso ciati on (AAA). 1 Further, the TAP specific ally

asserts t hat:

This procedure is intended to be the sole and exclusive remedy and forum for all claims arising out of or relating to an elig ibl e team member’s termination from employ ment.
The de cision and award of the arbitrator is final and binding between the parties as to all claims arising outof
or relatin g 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 em ployee handbook describ in g both the TAP and the company’ s policy of terminating employees only with “just cause.” McMullen ha d 4 McMullen v. Meijer, Inc. No. 01-1211

2 At the t ime McM ull en initiated the TAP proce ss, Meijer maint ained

a st andin g panel

of po tential a rbit

rat ors t hat it used f or eve ry a rbit

rat ion in which it

participated in the stat e of Michigan.

3 As a member of Meijer’ s st anding pan el of pote ntial arb itrators in Michigan, Daniel ha d served as the ar bitr ator i n seven arbi trati ons involving M eijer by the time M cM ullen initiated the TAP proce ss. thensigned a form acknowledging rece ipt of the handbook and asse nting to t he compa ny’ s policies

and proc edures. Uponinst itu ting ter

mination a

ppeal pr

oceedin gs, McMullenargued that her discharg e had been motivated by
a nintent to di scrimina

te aga inst her o n the basi s o f he r gender. Meijer

denied her appeal internally and informed her that, “[i]f you would like

to contes t the resu

lts of thisfurther review, you must request an ar bitration hearing .

. . .” Su bs eq ue nt ly, McMullen signed and filed the necessary paperw ork to beg

in the ar bitral pr ocess.
Once an arbit

ration he aring i s reques ted, the T AP gran ts Meijer the right to unilaterally

select a pool of at least five potential arbitrators, each of whom must be: (1) an at to rn ey, (2) unemploy

ed by and unaf

filia ted w it h t he co mp an y, (3) gener ally recog nized as a

neutr al an d experienced labor and employment arbitrator, a

nd (4) listed on the rosters of the FederalMediation and Conciliation Service (FMC S) or the AAA, as well as other arbitration rosters. 2 Then, counsel for the company a

nd the aggrieved

employee

mutually select an arbitrator fromthat pool by alternatively striking names until only one remains. On August 20, 1998, counsel for M cMullenand Meije

r, follow ing this procedur

e, selecte d arbitra tor William D aniel to h ear McM ullen’s a ppeal. 3

Several months later, andonly one day prior to the scheduled date of the arbitration

hearing, McMullen filed

this decla ra tory judgment action in state court challenging the fairne ss of

the TAP’s arbitrator-selection process. Asserting federal question jurisdiction, Meijer removed the action to theNo. 01-1211 McMullen v. Meijer, Inc. 5

4 The dist

rict judg e’s decisions on the motions f or summary judgment consis ted of b rie f or al rul ings from th e bench, r ather than wr itt en opinions. W ith regard to t he propriety of is suing oral rul ing s on summary judgment motions, unaccompanied by written f indings, t

his court previ ousl y has note d: Th is review in g court, and more importantly, the parties, are much better se rved when , as is th e c ustom in thi s circuit , the district court pre pares a wri tt en opi nion explaining i ts ruling and the reasoning, f

actual and legal , in

support, especial ly wh en the ruling d ispos es of the case in a final jud gme nt. Peck v. Bri dgeport Machines , Inc. , 237 F.3d 61 4, 617 (6th Cir. 2001). This observat ion is equall y appropriat e here. United States Dis trict Cour

t for the E ast e rn District of Michigan.

OnDecember 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 M eijer to select an arbit rator did not comport

with the requisite level of fairne ss for such

mandator

y- arbitr at ion contracts to be bind ing. Inconjunction with its decision, the court criticized the extent of control exercised b y Me ije r over the arbitral pa nel. The court also stated, “I’ m sorry that there were no t
cross motions in the case. There w eren’t , so we’ll still have this case alive here.”

OnSeptember 21, 2000, McMullen moved for summary judgmen t. On October 2, 2000, Meijer m o ved for reconsideration

of its ear

lier mo t ions based on this court’s interveningdecision in Haskins v . Prudent ia l Ins urance Companyof America , 230 F.3d 231 (6th Cir. 200 0). The districtcourt held a hearing on the motions on November 27, 20 00, and subsequently denie d McMullen’s motion for
summ ary judgment, granted Meijer’s motion f o r reconsideration, and, upon reconsideration, granted Meijer ’s motions for summary judgment a nd to compel arbitration. 4 6 McMullen v. Meijer, Inc. No. 01-1211

II.
The distri ct cour t’s decision to grant Meijer’s motion for summary judgment

is reviewed de novo , Smith v. Ameritech , 129 F.3d 857, 863 (6th Cir. 19 97), as is the district court’s decisionto grant Meijer’s motion to compel arbitration, Wiepking v. Prudential-BacheSecurities, Inc. , 940 F.2d 996, 998 (6th Cir. 1991). Similarly, the district court’s decisions regarding the existen

ce of a v alid arbitration agreement and the arbitra

bility of a particular dispute are reviewed de novo

. Floss v. Ryan’s Family Steakhouses, Inc. , 211 F.3d 306, 311 ( 6 thCir. 2000). A district court’s denial of summary judgment is an int erl ocutory

order th at is not or

dinarily appealable, but when t

he appe al from a

denial of su m mary judgment is presented together with an appeal fr om a grant

of summary judgment, we have jurisdiction to review t

he denia l. Thomas v. United

States , 166 F.3d 825, 828 (6th Cir. 1999). When a district court denies a motion for summary judgment be ca use it determines that there exists a genuine issue of material fa ct , w e r ev ie w t he de ni al on ly f or 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 denia

l de novo

. Id. Because the district court denied McMullen’s summary judg ment motion solely upon legal g rounds, w e revie

w this deni al de novo

. The Supreme C ourt has he ld that ag reemen ts to arbit rate employment

disputes as a condition of employ ment are gener ally enforceable under the F ede ral Arbi tration A ct, 9 U.S.C. § 1 et seq. (FAA). Circuit City Stores, Inc. v. Adams , 532 U.S. 10 5, 109 (20 01). This court has consiste

ntly

u pheld the validity of pre-dispute ma ndatory ar

bitration agree ments. Haskins , 230 F.3d at 239; Willis v. Dean W

itter Reynold s, Inc. , 948 F.2d 305, 310 (6t h C ir. 199 1). It is well settled that judic ial p ro tection of pre-dispute arbitral agree ments extends to agreements to arbitrate s tatut ory emplo yment discrimin ation claims. Gilmer v

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

Willis , 948 F.2d at 3 12. Arbitr ation of s tatutory

claims is appropr iate because “[b]y ag

reeing to arbitrate a statutory claim, a p ar ty d oe s not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arb itral, rather than a judicial, fo rum.” Gilmer , 500 U.S. at 26 (quoting Mitsubishi Motors Corp . v. Sole r Chrysler-Plymouth, Inc ., 473 U.S. 614, 628 (1985)). Notwithstanding a general policy fav o ring such agree ments, there are circumstances under wh ich cour ts will notenforce pre-dispute mandator y arbitra tion agr eements
w ithregard to statutory

employment discrimination claims

. In Flo ss , w e h el d t ha t, “e ve n i f a rb it ra ti on is ge ne ra ll y a suitable forum for resolving a particular statutory claim, the specific arbitral forum

pro vided under an arbitration agreement

must nev erth eless allow for the effective vindicationof that claim.” F loss , 211 F.3d at 313. The central issue in thi s case is whether Meijer’s exclusive control
over the pool of potential arbitra to rs renders the arbitral forum
so fundamental ly unfair as to prevent McMullen from effec tively

vindicating he r statutory

rights, thereby

precluding enforcement

of the pr e -dispute agreement to arbitrate the statutory claims.

Before reachi

ng this c entral is sue, howe ver, we must address two prel imina ry

argume nts made by Me ijer. Fi

rst, Meijer argues that, regar

dless of the viability of the predispute agree ment, McM

u llen should be c ompelled to arbitra te her cla ims b ecau se she vol

untarily and knowi

ngly agr eed to arbitration after

the dispute had occurred. Whe n Meijer interna lly r eviewe d McMulle

n’s c laimafter her termination, it issu e d a “results of review” statement on a Meijer “Termination

Appeal F orm.” The

form stat es that to chall enge the termi

nation, a n employ

ee mu st re quest arbitration. Part 3 of the form states, “I reque st thatmy c ase be submitted to arbitration in accordancewith the Company’s TerminationAppeal Procedure.”Benea th this statement, the form is signed solely by

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

McMullendid not agree to wai ve an y right to sue by signingthis form. The form was me rely 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 be cause it contain s no promis e not to
sue on behalf

of either party . Moreover, the form does not constitute an enforceable a

g reement because it lacks cont ractual consider

ation. I t is an ele

mental te

net o f Michigan contract law , wh ich appli es here , that pas t consideration

cannot se

rve as le gal consid eration for a subsequent

promise. Shirey v. Camden , 2 2 N.W.2d 98, 102 (Mich. 1946) . Mei

jer did not offer McMullen any new consideration

in return for signing the

form, whi ch Meije

r did not sign. Meijer’s second

preliminary ar

gument is that our decision in Haskins prevent s us fr om considering whether a predispute arbit ra tion agreement allows for the effe ctive vindicationof statutory claims. Meijer notes that we decided Haski ns after

we decided Floss . In Haskins , this cour t held that “absent a showing of fr aud, dur ess, mista

ke, or some other ground up on wh ich a contract may be voided, a court must enforce a contractual ag

reement to arbitrate.” Haskins , 230 F.3d at 239. Meijer requests that we c onstrue Haskins
na rr ow ly, ar gu in g t ha t M cM ul le n c an on ly e scap e from her agreement

to ar bi tr at e b y s howing “fraud, duress, or mistake.” Inother words, Meijer contends that McMullen cannot ask a
co urt to “inquire into the fairness of the terms of thes e arbitration

contra ct s and to voi d them bec ause one of their terms - the method of selecting the arbitrator - is al l egedly
un fair to her.” The district court concurred with Mei jer
, opining that “

Haskins has substantially narrowe d the grounds
on whic h one may

challen ge a c ontract

ual agr eement to arbitrate.” Consequently, the district court granted Meijer’s motion for reconsideration. The district court’s ruling, however, overstate s the impact of Haskins on the agre ement si gne d by M cMu ll en. In Haskins , the plaintiff signed an agree ment with a secu

ri tiesNo. 01-1211 McMullen v. Meijer, Inc. 9

5 The “ef fective vin dication ” te st refer enced in Floss deri ves f rom Gilm er , where the Supreme Court proclaimed, “[S]o long a s th e pro spec tive litigant effec tively ma y vindic ate [his or her] s tatutory cause of acti on in t

he arbit ral f orum, the sta t ute wi ll continu e to ser ve bo th its remedial and deterr ent f uncti on.” Gil m er , 500 U.S. at 28 (quoting Mits ubishi

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

6 Although the Rem bert decis ion predated Haskins , i t di d not pred ate Beaucham

p v. Great

West Lif e Ass uranc e Co ., 918 F. Su pp. 109 1 ( E. D. Mich. 1996), the underlying case on which Haskins rested it s holding. Indeed, the language in Has kins st ati ng that “abs ent a show ing of f raud, duress, mi sta ke or some ot her g round u

pon whi ch a con tra ct may be dealer s’ association binding him to arbitrate any disputes arising with his employer. The plaintiff’ s challenge to t h e agreement

focused on

his ignorance as to the existence of the mandatory arb itration agreement, rather than on a ny perc eive d

u nfai rness 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

th at, despite plaintiff’s ignorance, the ag reement was enforc eable absent fraud, mistake, duress, or another con tractual ground for challenge.

Inargu ing tha t McMullen can only esc ape arbitration by showing fraud, m

istake, or duress , Meij er ignores the remainingportion of the holding in Haskins , where this court made an allowance for “ some ot her ground upon which a contract may be voided.” Haskins , 230 F.3 d at 239. This langua ge suffici ently encompass es the “effective vindication” analy sis pr es cr ib ed by t he United States Supreme Court and endorsed by this circuit in Floss

. 5 Indeed, subsequent ca ses have arrived a

t thi s precise conclusion, construing the Floss “effective vindication” analysis as a not her g round on which
a mandatory ar

bitration agreement can be voi ded. See C ooper v. MRM Inv. Co. , 199 F.Supp.2d 771, 775 ( M.D

. Tenn. 2002); French v. First Union Sec., Inc. , 2 0 9 F. Supp. 2d 818, 826 (M.D. Tenn. 2002); Rem bert v. Ryan’s Steakhou se , 596 N.W.2d 208, 218 (Mich. Ct. App. 1999). 6 10 McMullen v. Meijer, Inc. No. 01-1211

voided, a cou rt must en force a con tractua l agree men t to arb itrate,” is adopted fr om Beaucham p , 91 8 F.Supp. at

1098. Thus, the Rem bert

c ourt’s conc lusion tha t Bea uch amp permi ts a fa irn ess chal leng e to a n arbi tra ti on agr eement

appli es wi th e qual forc e to Haskins

. For exa mple , in Cooper , the court extensively discussed Haskins in the course of assessing the validity of

a pre-d ispute agreement

to arbitrate signed by

a restaurant employ

ee. Inso doin g, the court essentially divided the Haskins analy

sis into two separate stages. First, it undertook the Haskin s contractual analysis that Meijer promotes in the instant appeal
as the only

means for invalida

ting such an ag

reemen t. Se co nd ly, contrary

to the position Meijer espouses, the court held that :
Even if this Cou r t found no contractual defenses to the enforcement

of the [ar

bitration agree ment] , Pl aintiff’s substantive rights are affected by the agreement. Courts have recognized that, although arbitra tion agreements are gener ally favored, they

will not be enforc ed if

they aff ect
anindi vidual ’s substantive rights. Gilmer , 500 U.S. at 28, 111 S.C t. 1647. Wher e an indiv

idual is unable to vindicat e his or her

rightsbecause

of an obst

acleerected by an arbitration agreement, the cour t may not enforce that arb itration a

greement. Cooper , 199 F. Supp. 2d at 780-81. Furthermore, even if M eijer’s interpre tatio n of Haskins
were correct, Haskins has been superseded by our en banc decisioninMorrison v. Circuit City Stores, Inc. , 317 F.3d 646 (6thCir . 2003). As we held in Morrison , “[t]he Suprem e Courthas made clear that stat utory ri ghts, suc

h as those created by Title VI

I, 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 forummust provid

e litiga nts with an

effec tive subst

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

Therefore, we must

decide whether Meijer’s TAP provides McMullenwith an effective substitute for the judicial forum to pursue her Title VII

claims. The TAP adopted by Me ijer is comme nd ab ly fair exce pt in one imp ortant re spect: it grants Meijer unilateral con

t rol over the pool of potential arbitrators.

McMullenrelies heavily on Hooters of America v. Phillips , 173 F.3d 933 (

4th Cir. 199 9), to supp ort h er argu ment that Meijer’s TAP is so unfair that it does not provide an effective
means of vindicating her Title VI I rights. In Hooters , the Fourth Circuit i nv alidated

an arbit ration a greement that it found “so one- sided tha

t [its] only

possible purpose [was] to undermine the neutrality of the pr oceeding.” Id . at

938. The Hooters court stated, “By promulgating

[a] system

of warped rules, Hooters so skewe d the proc ess in its favor that Phillips has been denied arbitration in any meaningfu l sense of the word.” Id . at 941. Many of the arbitration

procedures criticized by

the Four th Circuit in Hooters

were patently one-sided. F or example, the arbitration

agree ment at iss

ue in Hooters

required employees to file a notice of the particulars of th eir clai ms, as wel l 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 ma tter, but the employee

co uld only arbitra te matters asserted in the notice of claim. The
co mp an y, but no t the employee, c ould create a record or trans cript of the procee ding. The comp any also retained the sole right to cancel the arbitration ag reement or bring su it in court to vacate or modify

the arbitration award. Finally, the company co ul d u ni la te ra ll y m od ify the rule s at any

time

w ithout notice to the employee , even in the middl e of a n 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 arbitra tor, and the two arbit

rators in turn sele ct a thir

d. Good enough,
e xcept that the employee’ s arbitrator and the third arbitrator must be selected from a list of arbitrators
c reated exclusively by

Hooters. This gives Hooter s contr ol over the

entire p anel and

places n

o limits whatsoever

on whom Hooters can put on the list. Under the rules, Ho oters is f

ree to de

vise list s of partial arbitrator s who have existing relationships, financial or familial, with Hooters and its managemen t. In fact, the rules do not even prohibit Hooters from plac ing its manage rs themse lves on the

list.

Id . at 938-39.

Inaddition to Hooters , McMullen cites our opinion in Floss insupport of her argument that Meijer’s TAP should not be enforced in thi s case. In Floss , this court invalidated an arbitration

agree ment that gave a thi

rd-par ty a rbit r ation service, EDSI, complete discretion ov er th e procedures and rules to be used during arbitration hearings. Floss , 211 F.3d at 310. Bec ause EDSI

could cha

nge tho se rules

with o ut 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 fai rness of EDSI’s a

rbitrator-selection process. Under EDSI ’s rules, three “adjudicators” were selected from three separa

te selection pools to pr eside ov er the arbitration hearing. The first of these pools cons isted of su

per visors and managers fromanother EDSI signa

tory company; the sec ond

consisted of employees

fromanother signatory ; and the third contained attorne ys, re tired judges, and other “competent profe ssional persons.” Id . at 313-14 n.7. As described by the Floss court:No. 01-1211 McMullen v. Meijer, Inc. 13

The selectio

n proces s begins with EDSI furnishing both parties a lis t of potential adjudicators organized according to each selection

pool. Information reg arding each adjudica tor’s re cent emp loy

ment histo ry a

nd related biographicalinformat

ion is provided

to the parties along with this list. The part ies may then move to strike any adjudicator

for cause. Following the removal o f any adjudicators for

cause , the par

ties eac h strike a name fromthe list unt

il only one name remains from each selection pool.

Id.

Alth ough this proc ess 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 f or the resolution of statutory claims.” Id. at 314. Specifically, we observed that “the neutral ity of the forum is far from clear in light o f the uncerta inrelationship between [the employe r] and EDSI.” Id. The record did not reflect whe t her EDSI, in contrast to the AAA, was a for- profit entity, but we questioned whe ther an alleged financial relationship between theemployer company and EDSI, compounded by

the latter’s pe cunia

ry interest in retainingits arbitr

ation ser vice con tract, mi ght fost

er bias in favor of the employe

r client. Most sign

ificantl y to the present case, we found in Floss that “[i]n lig ht 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 14 65, 1482 (D.C. Cir. 1997) (“At a minimum, statutory rig hts include both a substantive protection

and access to a

neutral forum in which to enforce those protections.”)). Meijer’s TAP is pla inly more even-handed than the arbitration

agreement at issuein Hooters , which allowed for
un fett ered

employer contr

ol over the potential arbitral panel and contained a myr

i adof unilaterally biase d clauses and rules, givi ng Hooters an advantage in every a spect 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 ar bitrat or-selection process describ ed in Floss as “fundamentally unfair.” Id. In Floss , a third-party c ompany 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 selec ted the pool of potential arbitrators might be bias ed in favor of the employer, while here the company that selects the pool of potential arbitrators is the employe r. The type of control exercised by

Meijer over

the potential arbitrators is analogous to the “exclusive[] . . . c ontrol over the entire panel” e xercise d by the employ er in Hooters

and reje cte d by the Fourth Circuit. Hooters , 173 F.3d at 939. Furthermore, the arbi

trato r-s election procedure used by Meijer allows it to cr eat e the ty pe of sy mbiotic re lationship with its arbitrators that we feared would p romulgat e bias in Floss

. Floss , 211 F.3d a t 314. The

risk of bias inheren

t in Meijer’s procedure is demonstrated by the fac t t hat Meijer
uses the same

panel of five to s even arbitrators in each arbitration

hearing in whic h itparticipates in the state of Michigan. We find Meijer’s exclusive control over the pool of potentia l arbitra tors par ticularl y pr oblema tic because Meijer could easily have

adopted a procedu

re in which an unbiased third-party, such

as the AAA or FMCS, selected the pool of pot

ential ar bitrator s. Meijer argu es that the

bias whic

h McMulle

n fears will manifest itself during her arbi

tration he aring i s, at this po int, merely potential

bias. This is not a

n insigni ficant a

rgumen t. The Supreme C ourt, whe n presen ted wit h a n allegation of hypothetical

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

arbitra l body conducti ng a pr oceedin g will be unable or unwilling to retain competent, c ons cientious and impartial arbitrators.” Gilm er , 500 U.S. at 30 (quoting Mitsubishi , 473 U.S. at 634). McMullen has not asserted that the particular arbitrator selected to hear her cl aim i s biasedNo. 01-1211 McMullen v. Meijer, Inc. 15

7 Meijer also argues that Gilmer clearly est ablis hes th at the prefer red met hod of chal lengi ng all egati ons of bi as is to pursu e the un der lyin g cla ims through the arbitrati on process and then seek review only “[w] here there was evi dent part iali ty or corrupti on in t he arbit rators .” Gilmer , 500 U.S. at 30 (quoting 9 U.S.C. § 10(b)). W hile thi s is t rue for allegat ions of potenti al or hyp othetic al bias a mon g the arb itrators, it do es no t app ly to

an allegatio n, as is pre sent her e, that the a rbitrato r-selectio n p roce ss is funda men tally unfair. The Hoot ers court an d the Floss cour t both recogniz ed that

procedural unfairness inherent i n an arbitrati on agreement may be chall enged before the arb itration. Whe n the proce ss used to s elect the arbitra tor is fundamentally unfair, as in this ca se, the ar bitral for um is not an effecti ve sub stitute for a jud icial forum , and the re is no need to present separ ate evide nce of bias or corruption in the part icul ar ar bitrat or sel ecte d. agains ther or that his arbitration dec isio ns in the past have unreasonably

favored Meijer.

McMullen’ s c omplaint here, however, goes bey ond an allegation of

a potenti ally

biased a rbitrator becau se McMull e n cites a lack of fairness inherent in the arbitrator- selection process

. The Supreme Court in Gilmer recog nized that f

air and impartia l “arbitr ation rule s . . . prov

ide prote ctions ag ainst biased panels.” Id. Meijer’s TAP contains many of the rules acclaimed

by Gi lmer

for their

ability to guar d again st potential arbitra

l bias, but

unli ke t he rules

consider ed in Gilmer , Meijer’s TAP grants one party to the arbitration unilateral control over the pool of potential arbitra

tors. This procedure prevents Meijer’s TAP from being an ef fective substitute for a jud

icia l foru m because it inherently lacks
ne ut ra li ty. 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 arb itrat or-selection provision. The ques tion rema ins whethe

r Meijer ’s TAP is thus unenforc e able in its entirety or whe ther the selection pr ocedure can be se

vered a nd repla ced with a

n appropria

t e equitabl e proce ss. 16 McMullen v. Meijer, Inc. No. 01-1211

The parties’ a

ppel late briefs do not address the issue of whether invalidation of the arbitrat or-s election provision render s the TAP unenforc eable in it s e nt ir et y. Meijer raised the issue in a petition for rehearing filed af te r this court’s original opinion declared

the entire agreement unenfor ceable, and McMullen has respond ed to the petition. Meijer concedes that the TAP lacks a severability clause. It ar

gues, however, that the parties’ intent govern s the issue of
severa bility and urges us to find that

the TAP’s incorporation of the Employment Dispute Rules of the AAA e vidences an intentto have an arbitrator selected in acc ord with the AAA’s rule providing for selection of an arbitrator fr om its list when the parties’ agreement does not include an arbitrator-selection method. Alterna

tively , it urge s us to direct the district court to appoint an arbitrator in accord with the Fede ral Arbitration Act (FAA) procedure specif ied in 9 U.S.C . § 5 . F in al ly, Meijer relies on Chattanooga Ma ilers ’ Union, No. 92 v. Chattanoog

a News-Free Press

Co. , 524 F.2d 1305 (6th Cir. 1 975) (abrogation on other grounds re cognized b y 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 collec tive barga ining ag reemen t, despite the a gree ment’s inclusion of an allegedly illegal closed-shop provisio n a nd the abs ence of a sever ability clause, and determined that utilization ofthe arbitratorselection procedure of

§ 5 was appropriate, given the fac t that the procedure specified in the parties’ a gree ment was unworkable at the time.

McMullenresponds that the TAP’s spec ific e xclusion of AAA administration of any ar bitration under the TAP negates any inference that the parties intended application of AA A’s arbitrator selection rule. She

also asse rts that Ch atta nooga Mailers’ Union is factua

lly dissimilar to this case. She cites NLRB v. Rock

away News

Supply Co. , 375 U.S. 71 (1953), and Michigan case law , wh ich in her

view set f

orth a ru le that,
even when a severability

clause is present , the agree ment is unenfor ceable in its en tiret y when the invalidate d provision is central to the agreement or “ so interwoven wi th all o f itsNo. 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 cent ral, in her view, tha t its invalida tion requ ires inva lidation of

the entir e agre ement.

Indetermining whether

the TAP should be enforced absent the inva lid arbitrator-selection mechanism and, if it should, how to select an arbitrator, the parties’ intent is a primary issue. See gener ally Morrison , 317 F.3d at 676-77 (interpr eti ng arbitration contract provision as manifesting parties’ intent to sever invalid terms when con struction
un c lear under state law, given Supreme Court prece dent requiringresolution of doubt i n favor o f arbitr

ation); Great Earth Cos. v. Simons , 288 F.3d 878, 890- 91 (6th Cir. 2002) (finding clause requiring arbitration in New Yo rk sever able fro m remaind

er of ar bitration agree ment base d on parti e s ’ intent); Chattanooga Mailer s’ Union , 524 F.2d at 1315 (requiring arbit ratio n cons isten t wit h part ies’ i ntent altho ugh arbitration pr ocedure

they selecte d was unw orkable ); Br ucke r v. McKinlay

Tra nsp ., 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., I nc. v. W ild Bros. , 534 N.W.2d 217, 220 (Mich. Ct. App. 1995 ) (noting th a t in determining
severa bility “the primary consider

ation is the intention of

the parties” and finding attorney

fee provis ion severable from rescinded purch ase agreements). Yet, in this context, intent is not the only consideration. F eder al poli cy favor ing arbitration

may figure into the a

naly si s, s ee Morrison , 317 F.3d at 675, 679-80, as may the interplay betwe en state law and that fed eral pol icy, see id . In a ddition, a s Morrison in dica tes, reliance on Chattanooga Mailers’ Union is still appropr iate in cases concerning the severa bility of arbitration contract provisions. 317 F.3d at 678 n.22. Here, the parties did not

raiseany fac

tual issues involving their intent before the district court and, indeed, did not address the l ega l issues sur

rounding severa bility at any time until Meijer’s petition for rehearing wa s filed. Und er these circumst ances, 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 ins tance, a fter ful l briefingand development of any necessary

additional record, whether the TAP can be enforced without the impermiss ible arbitrator-selection

provision. If the district court decides that t he rema inder of

the agr eement c an be en forced , it will als o have to determine how an arbitrator should be selected.

III.

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

nt to Meijer and the district court’s denial of summary judgme

nt to McMullen. We remand the case to the district court for further procee dings consistent with this opinion.