*The Honorable Richard H. Battey, United States District Judge for the District

of South Dakota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 99-1405

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John Winfrey, *

*

Appellant, * Appeal from the United States

* District Court for the District

v. * of Nebraska.

*

Bridgestone/Firestone, Inc., * [UNPUBLISHED] 

*

Appellee. *

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Submitted: December 14, 1999

Filed: December 23, 1999 

___________

Before WOLLMAN, Chief Judge, FAGG, Circuit Judge, and BATTEY,* District

Judge.

___________

PER CURIAM.

In 1995, Bridgestone/Firestone, Inc. (Firestone) adopted an Employee Dispute

Resolution Plan (Plan), which covered at-will employee John Winfrey and included a

mandatory arbitration provision for employment-related disputes. The following notice

appeared on the front cover of the Plan:
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THE EMPLOYEE DISPUTE RESOLUTION PLAN BECOMES

EFFECTIVE ON OCTOBER 1, 1995, AS THE EXCLUSIVE MEANS

OF RESOLVING EMPLOYMENT-RELATED LEGAL CLAIMS.

THAT MEANS IF YOU APPLY FOR EMPLOYMENT, ACCEPT

EMPLOYMENT, OR CONTINUE WORKING AT

BRIDGESTONE/FIRESTONE ON OR AFTER THAT DATE, YOU

AGREE TO RESOLVE ALL SUCH CLAIMS THROUGH THIS

PROCESS, INSTEAD OF THROUGH THE COURT SYSTEM OR

ADMINISTRATIVE AGENCIES.

After receiving a copy of the Plan, Winfrey continued working at Firestone. In 1998,

Winfrey brought a lawsuit against Firestone, alleging racial discrimination, harassment,

and retaliation in violation of Title VII and 42 U.S.C. § 1981. Firestone moved to

dismiss the action, relying on the Federal Arbitration Act (FAA), 9 U.S.C. § 2 (1994),

which provides that a written arbitration agreement like the Plan "shall be valid,

irrevocable, and enforceable, save upon such grounds as exist at law or in equity for

the revocation of any contract." The district court granted Firestone's motion,

concluding "Winfrey's continuing employment with [Firestone] after receiving a copy

of the [Plan] formed a contract between the parties . . . [that] includes an agreement to

mediate and arbitrate . . . disputes arising from the employment relationship, and

specifically racial discrimination, harassment, and retaliation."

On appeal, Winfrey first contends he did not sign the Plan and thus is not bound

by the Plan's mandatory arbitration provisions. We disagree. "Under the FAA,

ordinary contract principles govern whether parties have agreed to arbitrate, principles

that in this case are derived from [Nebraska] law." Patterson v. Tenet Healthcare, Inc.,

113 F.3d 832, 834 (8th Cir. 1997) (citation omitted); accord Keymer v. Management

Recruiters Int'l, Inc., 169 F.3d 501, 504 (8th Cir. 1999). The parties agree that Winfrey

did not sign the Plan. Neither the Plan nor Nebraska law, however, requires Winfrey's

signature to show his agreement to be bound by the Plan requirement that employmentrelated disputes be resolved through arbitration. See Coffey v. Mann, 585 N.W.2d
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518, 523 (Neb. App. 1998) ("in the absence of a statute requiring a signature or an

agreement by the parties that a contract shall not be binding until it is signed, signatures

of the parties are not essential for establishing a binding contract if manifestation of

mutual assent is otherwise shown"). Instead, "where an at-will employee [like

Winfrey] retains employment with knowledge of new or changed conditions, . . .

[Winfrey's] retention of employment constitute[d] acceptance of the offer of a unilateral

contract; by continuing to stay on the job, although free to leave, [Winfrey] supplie[d]

the necessary consideration for the offer," Johnston v. Panhandle Coop. Ass'n, 408

N.W.2d 261, 266 (Neb. 1987), and agreed to be bound by the Plan's mandatory

arbitration provision. Contrary to Winfrey's view, Firestone did not waive its right to

enforce the Plan's arbitration clause by failing to assert this argument when Winfrey

filed his EEOC complaint. Winfrey "cites no authority requiring [Firestone] to invoke

arbitration prior to the filing of a lawsuit." McWilliams v. Logicon, Inc., 143 F.3d 573,

577 (10th Cir. 1998).

Next, Winfrey contends the district court should not have dismissed the claims

that were based on events occurring before the effective date of the Plan. Again, we

disagree. Even assuming these claims were properly presented to the district court, the

district court did not commit error in dismissing them. We have carefully reviewed the

Plan and conclude, as the district court did, that "all of the claims raised in [Winfrey's]

complaint are subsumed by the [Plan]," which applies

to any legal or equitable claim, demand or controversy, in tort, in contract,

under common law or statute, or otherwise alleging violation of any legal

obligation, between [Winfrey and Firestone], which relates to, arises

from, concerns or involves in any way . . . [t]he employment of [Winfrey]

. . . or . . . [a]ny other matter related to the relationship between [Winfrey]

and [Firestone] including, by way of example and without limitation,

allegations of: discrimination . . .; [and] harassment . . .
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and contains no term limiting its application to claims based on incidents occurring after

the Plan's effective date. See Keymer, 169 F.3d at 504 (courts must construe

arbitration agreements based on the contracting parties' intent and "'any doubts

concerning the scope of arbitrable issues should be resolved in favor of arbitration'").

We also reject Winfrey's argument that his Title VII and § 1981 claims cannot

be subjected to the Plan's mandatory arbitration provisions. See Gilmer v.

Interstate/Johnson Lane Corp., 500 U.S. 20, 26-27 (1991) (statutory claims may be

subject to enforceable arbitration agreement); Patterson, 113 F.3d at 837 (Title VII

claims properly subject to arbitration agreements); Kim v. Nash Finch Co., 123 F.3d

1046, 1063 (8th Cir. 1997) (elements of Title VII and § 1981 claims are identical).

Finally, we reject Winfrey's meritless challenge to the procedures contained in the Plan.

See Gilmer, 500 U.S. at 30-32. 

We affirm the district court's order granting Firestone's motion to dismiss. 

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.