UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

DAVID M. HUNT

Plaintiff,

Case Number 08-14307-BC

v. Honorable Thomas L. Ludington

MACY’S RETAIL HOLDINGS, INC.,

Defendants.

__________________________________/ 

ORDER GRANTING MOTION TO COMPEL ARBITRATION AND

DISMISS THE ACTION, CANCELING HEARING, AND DISMISSING

THE CLAIMS WITHOUT PREJUDICE

On October 9, 2008, Plaintiff David M. Hunt filed a complaint, alleging that his former

employer, Defendant Macy’s Retail Holdings, Inc., discriminated against him based on gender and

retaliated against him in violation of the Michigan Elliot-Larsen Civil Rights Act (“ELCRA”), Mich.

Comp. Laws § 37.2101, et seq. Plaintiff has invoked the Court’s diversity jurisdiction under 28

U.S.C. § 1332. On December 2, 2008, Defendant filed a motion “to stay the action while motion

is pending, compel arbitration and dismiss the action, or in the alternative, stay the action pending

arbitration” [Dkt. # 7]. Plaintiff filed a response on December 5, 2008, and Defendant filed a reply

on December 16, 2008.

Defendant’s motion contends that Plaintiff agreed to arbitrate his employment disputes with

Defendant. In response, Plaintiff contends that he has revoked the agreement under Michigan law.

The Court has reviewed the parties’ submissions and finds that the facts and the law have been

sufficiently set forth in the motion papers. The Court concludes that oral argument will not aid in

the disposition of the motion. Accordingly, it is ORDERED that the motion be decided on the

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papers submitted. Compare E.D. Mich. LR 7.1(e)(2).

I

Defendant provided the following facts in its motion; Plaintiff did not dispute them in his

response:

In Fall 2003, Defendant’s parent company, Macy’s, Inc., implemented a dispute resolution

program entitled “Solutions InStore” (“SIS”) nationwide. SIS involves four steps. Steps one

through three cover all employees and involve internal processes for informally resolving disputes.

Step four is arbitration and applies only if the employee agreed to be bound by arbitration; it is not

a condition of the employee’s continued employment.

The arbitration plan covers all employment-related disputes and provides for arbitration

administered by the American Arbitration Association. It provides further that “[i]f a party files a

lawsuit in court to resolve claims subject to arbitration, both agree that the court shall dismiss the

lawsuit and require the claim to be resolved through the [SIS] program.”

In October 2000, Plaintiff was hired by May Department Stores Co. (“May”), and in May

2005, May merged with Macy’s. At that point, Plaintiff became an employee of Macy’s. In 2006,

Macy’s implemented a roll-out of SIS to all former May employees, including Plaintiff. Each

division of Macy’s was directed to set up informational sessions with their employees and all

employees were directed to attend one such meeting. Plaintiff signed an attendance sheet at one of

the meetings, indicating “10/6” as the date.

At these meetings, employees were given the “Early Dispute Resolution” brochure, which

summarized the terms of SIS. A company representative explained SIS to employees, answered

questions, and alerted employees to the future mailings that they would be receiving. The

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employees viewed a short video explaining the program. Additionally, each store placed posters

explaining the four-step SIS process in areas frequented by employees.

On September 26, 2006, a “Welcome to Solutions InStore” postcard, the plan document for

SIS, an “Early Dispute Resolution Program Election Form,” and a pre-addressed, postage-paid

return envelope, were mailed to all former May employees at their address of record maintained in

the company files. The election form instructed that if an employee wanted to be excluded from step

four, the arbitration phase of SIS, the employee should fill out and return the election form in the

pre-addressed, postage-paid envelope with a postmarked date no later than October 31, 2006. If an

employee returned an election form, Macy’s sent that employee a confirmation of the election,

which the election form indicated that Macy’s would do. The election form instructed the employee

to contact SIS if he or she did not receive confirmation.

Plaintiff was mailed the materials described above, but he did not return the election form.

Thus, he did not receive a letter confirming that he had opted out of step four of SIS. If the

employee did not return the election form, on April 18, 2007, Macy’s sent the employee a brochure

entitled, “You’re in Good Company,” confirming the employee’s participation in the program.

Plaintiff was sent a copy of this brochure.

In October 2007, Macy’s gave employees a second chance to opt-out of the fourth step of

SIS. Macy’s mailed the following items to employees who had not previously opted out: (1) a

“We’ve Got You Covered” brochure, (2) an “Opening the Door to More Information” newsletter,

(3) an election form with a postmark deadline of November 15, 2007, and (4) a pre-addressed,

postage-paid return envelope. Plaintiff was mailed this package of documents.

As before, the election form indicated that an employee who opted-out would receive a

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confirmation letter, and that if the employee did not receive the confirmation, he or she should

contact the SIS office. The SIS office logged any communications, including telephone calls, letters,

and email, concerning the rollout into a spreadsheet.

The SIS office has regular procedures for processing election forms. Each election form is

date-stamped when it is opened. The form is reviewed for completeness and then loaded into the

“PeopleSoft Human Resource System,” which records opt-out status. Hard copies of election forms

are maintained in filing cabinets organized by social security number. According to the PeopleSoft

system, Plaintiff did not return an opt-out form. The hard-copy files do not contain an election form

for Plaintiff either. No mail sent to Plaintiff was ever returned to the SIS office as undeliverable,

and Plaintiff never contacted the SIS office.

II

Defendant’s motion to compel arbitration asserts the following main points: (1) Plaintiff and

Defendant entered into an arbitration agreement, (2) the arbitration agreement is valid, (3) Plaintiff’s

claims under the ELCRA are within the ambit of the arbitration agreement, (4) the arbitration of

claims is not prohibited under the ELCRA (5) the procedures set forth within the arbitration

agreement are fair, and (6) public policy favors enforcement of arbitration agreements.

Plaintiff’s sole argument in his response is that he has revoked the arbitration agreement.

Accordingly, the Court will only address whether the agreement is revocable and not the remainder

of Defendant’s arguments. Plaintiff contends that, under Michigan law, the arbitration agreement

is one for common-law arbitration, rather than statutory arbitration, because the agreement does not

provide for an entry of judgment in circuit court subsequent to an award. As such, Plaintiff asserts

that the agreement may be unilaterally revoked by either party prior to the announcement of an

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 While the existence of an agreement to arbitrate is determined by state law, First Options Chicago,

Inc. v. Kaplan, 514 U.S. 938, 944 (1995), Plaintiff does not dispute the existence of an agreement.

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award.

Plaintiff relies primarily on Trompeter v. Catholic Family Services, No. 221658, 2001 WL

1134876 (Mich. Ct. App. Sept. 25, 2001) to support his argument. In Trompeter, the court of

appeals recognized that, in Michigan, common-law arbitration agreements are “revocable by either

party at any time before the announcement of an award.” Id. at *1. In contrast, “statutory arbitration

agreements are irrevocable except by mutual consent.” Id. (internal quotation omitted). The court

further recognized that, when parties intend to invoke statutory arbitration under the Michigan

Arbitration Act (“MAA”), Mich. Comp. Laws § 600.5001 et seq., the arbitration agreement must

“clearly evidence that intent by a contract provision for entry of judgment upon the award by the

circuit court.” Id. (quoting Hetrick v. David A. Friedman, D.P.M., P.C., 602 N.W.2d 603, 606

(Mich. Ct. App. 1999)). Thus, if an arbitration agreement does not provide that “judgment shall be

entered in accordance with the arbitrators’ decision, the contract involves common-law arbitration

rather than statutory arbitration.” Id. at *2 (internal quotation omitted).

Plaintiff argues that under Trompeter and Michigan law generally, the arbitration agreement

in this case is for common-law arbitration because it does not state that judgment shall be entered

in circuit court in accordance with the arbitrator’s award. However, the flaw in Plaintiff’s argument

is that the arbitration agreement is not governed by Michigan law.1

 The agreement is governed by

federal law, specifically the Federal Arbitration Act, 9 U.S.C. § 1, et seq. Article 18 of the

arbitration agreement explicitly states:

The arbitration agreement, the arbitration proceedings, and any award rendered

pursuant to them shall be interpreted under, enforceable in accordance with, and

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subject to the Federal Arbitration Act, 9 U.S.C. § 1, et seq., regardless of the state in

which the arbitration is held or the substantive law applied in the arbitration.

Moreover, 9 U.S.C. § 9, which is incorporated into the agreement, provides for the entry of

judgment in a court. See Rooyakker & Sitz, P.L.L.C. v. Plante & Moran, P.L.L.C., 742 N.W.2d 409,

416-17 (Mich. Ct. App. 2007) (finding that the phrase “judgment may be entered . . . in any court

having jurisdiction” was sufficient to satisfy the requirements of the Michigan Arbitration Act); Int’l

Millenium Consultants, Inc. v. Taycom Business Solutions, Inc., No. 08-11303, 2008 WL 5235994,

at * 3-4 (E.D. Mich. Dec. 15, 2008) (finding a statutory arbitration agreement existed when the

agreement incorporated by reference the American Arbitration Association rules, one of which states

that the parties consent to the entry of judgment “in any federal or state court having jurisdiction”).

Thus, in this case, the arbitration agreement is not a common-law arbitration agreement unilaterally

revocable by Plaintiff. As Plaintiff has argued no other grounds on which the agreement should not

be enforced, the Court will grant Defendant’s motion to compel arbitration and dismiss Plaintiff’s

ELCRA claims.

III

On February 6, 2009, Plaintiff filed an amended complaint, seeking to add claims against

Defendant under 42 U.S.C. § 1981. These claims were not properly before the Court in considering

Defendant’s motion to compel arbitration, thus, these claims are not affected by this order.

IV

Accordingly, it is ORDERED that Defendant’s motion to compel arbitration and dismiss

complaint [Dkt. #7] is GRANTED with respect to Plaintiff’s ELCRA claims.

It is further ORDERED that the hearing scheduling for February 11, 2009, is CANCELED.

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It is further ORDERED that Plaintiff’s ELCRA claims are DISMISSED WITHOUT

PREJUDICE.

s/Thomas L. Ludington 

THOMAS L. LUDINGTON

United States District Judge

Dated: February 10, 2009

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on February 10, 2009.

s/Tracy A. Jacobs 

TRACY A. JACOBS

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