UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KIMBERLY ALONSO,

Plaintiff,

v.

HURON VALLEY AMBULANCE,

Defendant.

 /

Case No. 09-12547

Honorable Nancy G. Edmunds

OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO DISMISS OR FOR

SUMMARY JUDGMENT [5]

For the second time, this Court is being asked to determine whether Plaintiff Kimberly

Alonso knowingly and voluntarily agreed to submit her employment-related claims to

Defendant Huron Valley Ambulance (“HVA”)’s Grievance Review Board (“GRB”) and

whether HVA’s grievance review process was fair. In an earlier action, Case No. 08-14330,

Plaintiff and her husband brought numerous state and federal claims against HVA, all

arising out of their employment relationship with HVA. In a May 26, 2009 decision, this

Court determined that (1) both Alan and Kimberly Alonso had knowingly and voluntarily

waived their right to a judicial forum and had agreed to submit all of their employmentrelated disputes to HVA’s GRB for a final and binding decision; (2) the GRB’s procedures

comported with elementary fairness; (3) Alan Alonso’s claims against HVA were to be

dismissed with prejudice; and (4) Kimberly Alonso’s employment-related claims were to be

dismissed without prejudice because she had not yet presented them to HVA’s GRB. See

Alonso v. Huron Valley Ambulance, No. 08-14330, 2009 WL 1469641 (E.D. Mich. May 26,

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2009). 

Subsequently, on January 20, 2009, Plaintiff Kimberly Alonso was terminated by HVA

for benefits fraud; specifically, for repeatedly misusing her intermittent Family Medical

Leave Act (“FMLA”), 29 U.S.C. § 2601, et seq., leaves of absence approved for her

migraine headaches. Plaintiff followed HVA’s grievance review process to challenge her

termination. On June 9, 2009, a hearing was held before the GRB. On June 12, 1009,

Plaintiff was informed in writing that the GRB had unanimously affirmed her termination.

On June 29, 2009, Plaintiff filed this action asserting that (1) HVA improperly interfered with

her FMLA leave and retaliated against her in violation of the FMLA when it terminated her;

and (2) the GRB’s decision affirming her termination should be vacated pursuant to

Michigan Court Rule 3.602(J) addressing “statutory arbitration” under Michigan Compiled

Laws §§ 600.5001-600.5035.

This matter comes before the Court on Defendant HVA’s motion to dismiss pursuant

to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6); or, in the alternative, for

summary judgment pursuant to Rule 56(c). For the reasons stated below, Defendant’s

motion is GRANTED. 

I. Facts

Defendant HVA is a non-profit, community-owned organization based in Ann Arbor,

Michigan. It provides critical ambulance and educational assistance to the communities

it serves. Today, HVA serves all or part of eight counties in south-east and south-central

Michigan. 

A. Employment Application, Manual, Policies and Procedures 

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It is not disputed that Kimberly Haney is now known as Kimberly Alonso.

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In 2005, Defendant HVA interviewed Plaintiff, along with others who were interested

in working as paramedics for HVA in Monroe County. On July 8, 2005, Plaintiff Kimberly

Alonso signed an Employment Application. (Def.’s Ex. A.) On the last page of the

Application, in an area blocked off and preceded with the words (in all caps and bolded)

“PLEASE READ THE FOLLOWING BEFORE SIGNING,” there is an exclusive remedy

provision providing that:

Any dispute arising out of or in connection with any aspect of my employment by

the Company, or termination thereof, including by way of example but not

limitation, disputes concerning alleged civil rights violations, breach of contract

or tort, shall be exclusively subject to review by the Grievance Review Board.

Any decision of the Review Board shall be binding to both parties, and

enforceable in the circuit court. 

(Id. at 4, ¶ 8 (emphasis added).) Immediately preceding Plaintiff’s signature1 and

handwritten date, there is a paragraph acknowledging that the signer has “read the above

statements” and understands them. (Id.) 

 In August 2005, HVA hired Plaintiff as a part-time Paramedic I. Shortly thereafter,

in connection with HVA’s newly assumed Monroe County operations, Plaintiff became a

full-time Paramedic I. 

In conjunction with her employment, Plaintiff was given HVA’s Operations Policies and

Procedure’s Manual that explains HVA’s four-step grievance policy:

Your supervisor and HVA have a continuing goal of maintaining a work

environment where problems and misunderstandings concerning your work will

be minimal. When an occasion does arise where you believe a problem or

misunderstanding has developed, explore the following steps in the prescribed

order. This way, you can communicate the exact nature of the problem or

misunderstanding so that it may be appropriately resolved. Your use of the

Problem Solving Procedure as outlined below will not prejudice or damage your

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continued employment prospects, or conditions of employment at HVA. You can

also contact Human Resources or the company’s Compliance Officer to discuss

your situation.

Step 1

Discuss the problem with your immediate supervisor.

Step 2

If your immediate supervisor is not head of the department and you are not

satisfied with the discussion with him or her, you have the right to talk the matter

over with your Department Vice President.

Step 3

If you are not satisfied with the progress of your complaint, or if there is a valid

reason for omitting steps 1 and 2, you have the right to discuss the problem with

the President & C.E.O. He or she will discuss the problem with you, and help

you resolve the matter.

Step 4

If you are not satisfied at the conclusion of Step 3, and have completed the 180-

day introductory period, you may request that the matter be heard before a

Grievance Review Board (GRB). The GRB will hear both sides of the problem

and report their findings and decision. The Board’s decision will be final and

binding on all parties.

The Grievance Review Board will consist of two representatives chosen by the

employee (a line level employee and a supervisor or manager), two

representatives chosen by the President and C.E.O. (one a line level employee

and one a manager or supervisor) and the fifth individual will be chosen mutually

by the employee and President & C.E.O. Representatives may not be a relative

or spouse of the employee.

A request for the GRB hearing of a problem will not prejudice the good standing

of any employee.

Timeliness

Following review of your grievance with your immediate supervisor, each

additional step must be requested in writing within seven (7) calendar days.

Step 4 (GRB) must be requested in writing to the President.

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(Def.’s Ex. B (emphasis added).) The employee is also advised to see “Grievance Review

Board Procedures - Administrative Policy No. 415.” (Id.) 

Administrative Policy No. 415 elaborates on the Grievance Review Board Procedures.

Under “Policy,” the employee is reminded that “[a] GRB hearing is an aggrieved employee’s

sole and exclusive remedy and decisions of the Board are final and binding on both the

employee and the company. Additionally, GRB decisions are enforceable in Court.” (Def.’s

Ex. C, 10/14/08 Update (emphasis added).) 

That a hearing before the Grievance Review Board is the aggrieved employee’s

exclusive remedy for employment-related claims is repeated in the section titled

“Procedure.”

1. As the final step of any employee grievance relating to any issue of

promotion, demotion, compensation, harassment, discrimination, discipline,

layoff, recall, termination and/or constructive termination from employment, an

aggrieved employee may request a hearing before a Grievance Review Board.

Such a hearing before a Grievance Review Board will be the sole and exclusive

remedy available to an aggrieved employee, whenever the employee’s grievance

relates in any way to any such topic. This procedure shall apply to disputes

involving any and all legal claims or theories, including but not limited to claims

for defamation, wrongful discharge, breach of contract, negligence, or other tort

actions; whistle blower retaliation; or discrimination, harassment and/or

retaliation on account of age, sex, sexual orientation, race, color, religion, marital

status, disability, height, weight, national origin, citizenship, genetic information

or any other classification protected by law.

(Id. at 1, ¶ 1 (emphasis added).) 

This section also explains how the members of the GRB are selected, the pre-hearing

procedures, how the hearing is to be conducted, how a decision is reached, and expressly

states yet again that the GRB’s decision is final and binding on both the employee and the

company.

5. The aggrieved employee shall select two representatives to sit on the GRB,

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one of who shall be a line employee and one who is a Supervisor or Manager.

Management shall select two representatives to sit on the GRB, one of who shall

be a line employee and one who is a Supervisor or Manager. The employee and

the President and C.E.O. shall mutually select a fifth individual. GRB

representatives will be paid for their time. The GRB representatives shall select

the Chair of the Board at the beginning of the hearing by secret ballot, majority

rule. Representatives may not be a relative or spouse of the aggrieved

employee, and may only serve on one GRB within any twelve (12) month period.

The Chair will be responsible for maintaining order during the hearing and

ensuring that the proceedings are in accordance with this policy and that the

Board’s decision is in accordance with the grievance. The Department Vice

President (or a designee) and the aggrieved employee shall have the right to be

present during all testimony. The Department Vice President (or a designee) will

explain the company’s position at the outset of the hearing.

6. A list of any witnesses a party intends to call at the hearing must be

forwarded to the Human Resources Manager at least five (5) business days prior

to the initial scheduled GRB meeting. The aggrieved employee and

management will each make contact and arrange for the appearance of their

selected witnesses. (Be advised that the company is unable to require a witness

to appear). The Human Resources Manager will provide to each party copies

of the witness lists. Each party will have the opportunity to present evidence and

arguments, and have the opportunity to reasonably question the witnesses.

Witnesses who are employed by the company will be paid for their time in

attending the hearing. 

7. The GRB shall decide the grievance on the basis of the evidence presented

at the hearing.

8. The Human Resources Manager (or designee) will electronically record the

proceedings and take minutes, but will not be present during the deliberations.

The deliberations by the GRB shall not be recorded. However, the findings and

final decision of the GRB shall be read into an audio recording device.

Management shall maintain the recording, for a minimum of three years. Any

action taken by the GRB will also be written and certified by the Chair on forms

provided by the Human Resources Manager.

Procedure - During the GRB

1. The Human Resources Manager will assemble and distribute a packet of

information at the beginning of the GRB for the committee to review:

. List any work rules that have been violated

. Copies of any disciplinary action and performance evaluation given (if

applicable)

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. The written answer provided to the aggrieved employee by the President

and C.E.O. (Step 3)

. The specific grievance of the employee and the remedy that the

employee is asking the GRB to consider

. Any other relevant information pertaining to the grievance.

2. Both the involved employee and management will present their cases, in the

following order:

. Opening statement of aggrieved employee

. Opening statement of management (by the Vice President for the

Department or designee) 

. Witnesses on behalf of the aggrieved employee

. Witnesses on behalf of Management 

. Aggrieved employee closing summary

. Management’s closing summary

. Aggrieved employee rebuttal

3. Each party will have the right to present evidence and arguments and the

opportunity to question reasonably witnesses who appear at the hearing,

provided they hae [sic] been timely identified on the witness list. Written

evidence may be introduced at the hearing by either party, with or without a

witness, to be considered by the Board. Copies of all information distributed

during the hearing will be collected by the Administrative Assistant or Human

Resources Manager at the conclusion of the hearing.

4. Any evidence presented must be available for management and the

aggrieved employee to review. Relevant information within an employee’s

personnel file may be presented as evidence.

5. All witnesses shall be sequestered from the hearing. The aggrieved

employee and one representative from Management (who is not on the Board)

may stay through the entire testimony period. Neither the company nor

employee may request others to attend.

6. Once both sides have been presented, all persons not on the GRB shall

leave the room and the GRB shall deliberate. The final decision of the GRB

must be a majority decision; a unanimous decision is not necessary. The GRB

representatives shall determine if the voting procedure is by open or secret

ballot. The Chair of the GRB shall count the votes and put the findings and

decision in writing.

7. Any member of the committee may request that the GRB consult with the

President and C.E.O. at any time – including during the deliberation process. If

this consultation is requested during the testimony period of the GRB hearing,

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all participants other than the GRB and the President and C.E.O. shall be

excused from the room. 

8. The aggrieved employee shall be provided all substantive rights and

remedies, including any applicable damages provided under any pertinent

statute(s) related to his/her claims. 

9. The GRB shall put its findings and decision in writing. Copies shall be

provided both to the involved employee and to Management. Any decision of

the GRB shall be final, binding, and enforceable in the Washtenaw County

Circuit Court. 

Important: A request for a GRB hearing will NOT prejudice the good standing

of the employee.

(Id. at ¶¶ 5-9 (italics in original; underlining in all but last sentence added).) 

After being hired, Plaintiff attended an orientation. She acknowledged that she had

received and understood HVA’s employment policies and procedures manual by her

signature on a document titled “Record of Receipt” and “Statement of Understanding.”

Immediately above her signature, this document stated:

I, the undersigned, have received a revised copy of the Operations Policies and

Procedures Manual for Huron Valley Ambulance, Inc., and understand that I am

responsible for adhering to these Policies and Procedures. I also understand

that I am responsible for keeping this manual updated as revisions and/or

additions are made.

(Def.’s Ex. D, signed by Plaintiff and dated 8/15/05.)

B. Plaintiff Kimberly Alonso

The following facts are relevant to the claims Plaintiff Kimberly now asserts against

HVA.

1. Plaintiff Kimberly’s Pre-Termination Use of GRB Process

Plaintiff used HVA’s grievance review process a number of times before her January

2009 termination. On May 1, 2007, Plaintiff Kimberly successfully grieved a number of

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disciplinary employment actions: (1) a written warning about a run that occurred on

January 10, 2007 was dismissed by a majority vote of the GRB; (2) a one-day suspension

for a run that occurred on March 28, 2007 was reduced to a written warning; (3) a

performance evaluation received on April 5, 2007, resulting in a demotion to Paramedic I

and reassignment of stations, was changed by the GRB from “unsatisfactory” to “below

standards,” resulting in no demotion; and (4) a three-day suspension Plaintiff received on

April 17, 2007 was dismissed. (Def.’s Ex. E, 5/1/07 GRB Decision and Findings.) 

2. Plaintiff’s FMLA Leave History

Prior to her October 2008 migraine-related FMLA leave, Plaintiff had been approved

for and taken other FMLA leaves of absence since being hired in August of 2005. In

September 2006, Plaintiff requested and was approved for intermittent FMLA leave for one

year for her sinusitis, TMJ and renal lithiasis medical conditions. In April 2007, Plaintiff

requested and was approved for FMLA leave due to pregnancy complications and the birth

of her child. Her child was born on September 12, 2007, and she returned to work on

November 1, 2007. On December 14, 2007, Plaintiff requested and was approved for

intermittent FMLA leave to care for her child until the child’s first birthday on September 12,

2008. One month later, in October 2008, Plaintiff requested and was approved for

intermittent FMLA leave for one year for her migraines. (Pl.’s Ex. 6, GRB Hrg. Tr. at 51-52,

60-61,68-72, 73-75.) 

3. Plaintiff’s October 2008 Intermittent FMLA Leave For Migraines

In October 2008, Plaintiff obtained the required medical certification from her family

practice physician for intermittent FMLA leave for her migraine headaches. (Pl.’s Ex. 4,

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“Intermittent leave is FMLA leave taken in separate blocks of time due to a single

qualifying reason.” 29 C.F.R. § 825.202(a). If taken “because of one’s own serious health

condition, . . . there must be a medical need for leave and it must be that such medical

need can be best accommodated through an intermittent . . . leave schedule.” 29 C.F.R.

§ 825.202(b). 

The federal regulations further provide that “[w]here it is physically impossible for an

employee using intermittent leave. . . to commence or end work mid-way through a shift,

such as where a flight attendant or a railroad conductor is scheduled to work aboard an

airplane or train, . . ., the entire period that the employee is forced to be absent is

designated as FMLA leave and counts against the employee’s FMLA entitlement.” 29

U.S.C. § 825.205(a)(2).

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10/21/08 Certification Form.) The information on the certification form reports that Plaintiff

was seen on October 20, 2008 and complained of “TMJ/migraines” that began in June of

2006. (Id.) On the date of her doctor visit, Plaintiff stated that she had had a migraine “for

four days.” (Id.) It is further reported that Plaintiff cannot determine the frequency of her

migraines, recovery takes “from1-5 days,” her migraines are “[t]reated with medication and

rest,” and that “when medical condition exacerbates, patient is unable to perform work of

any kind.” (Id.) Plaintiff requested and was granted intermittent FMLA leave for a period

of one year for her migraines.2

 (Id.; Pl.’s Ex. 6, 6/9/09 GRB Hrg. Tr. at 70-71.) 

4. Plaintiff’s January 2009 Termination and June 2009 Grievance

On January 20, 2009, Plaintiff was terminated for committing benefits fraud based on

evidence showing that Plaintiff had repeatedly misused her one-year, intermittent FMLA

leave of absence approved in October 2008. (Pl.’s Ex. 5, 2/11/09 letter to Plf. from Dale

Berry, HVA President and CEO.) Specifically, on three different occasions, while allegedly

being disabled due to migraine headaches, Plaintiff was video-taped driving, running

errands, going to the bank, going to a pawn shop, visiting the post office, getting gas,

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smoking, traveling to Ohio, and visiting a noisy restaurant with her family. (Pl.’s Ex. 6,

6/9/09 GRB Hrg. Tr. at 66-67, 79-87.) 

After her termination, Plaintiff initiated HVA’s grievance review process. Pursuant to

Steps 1 and 2 of that process, Plaintiff attempted to discuss her termination with her

immediate supervisor, Mark Irwin, and with HVA’s Vice President, Dick Borton. (Pl.’s Ex.

1, Pl.’s Aff. at ¶¶ 23-27.) Being unsatisfied, Plaintiff proceeded to Step 3, by discussing her

termination with HVA’s President and CEO, Dale Berry. (Id. at ¶¶ 28-29.) 

On January 28, 2009, Plaintiff met with Dale Berry and HVA’s Human Resources

Manager, Maryann Voss. Her goal was to discuss the reason for her termination, resolve

any issues about her use of FMLA leave, and to be reinstated. (Id. at ¶ 30.) Dale Berry

informed Plaintiff that HVA had hired an investigator who had followed and photographed

her on three different occasions when she had called HVA to report that she was taking

FMLA leave due to her migraine headaches. (Id. at ¶ 35.) In a February 11, 2009 letter

to Plaintiff summarizing that January 28, 2009 meeting, Dale Berry informed Plaintiff that,

because she had failed to provide him with any information “that would change the

company’s determination that [she] had committed benefits fraud relating to [her] use of

FMLA,” the decision to terminate her was being upheld. (Pl.’s Ex 5, 2/11/09 letter.) 

Plaintiff then proceeded to Step 4 of HVA’s grievance review process.

On February 21, 2009, Plaintiff initiated Step 4 by notifying HVA that she was grieving

her termination, was requesting a hearing before the GRB, and was claiming that she had

not committed benefits fraud but HVA had violated her FMLA rights when it terminated her.

(Def.’s Ex. G, 2/21/09 email.) Plaintiff also informed HVA and the GRB that she was

seeking the following relief: dismissal of her termination, reinstatement to her prior position

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as a senior paramedic, reinstatement of wages for time period between termination and

reinstatement, actual damages, double damages, attorney fees, and interest. (Pl.’s Ex. 6,

6/9/09 Hrg. Tr. at 31; Def.’s Ex. K, 6/12/09 letter.) 

In accordance with HVA policy, the aggrieved employee selects two members of the

GRB, the company selects two, and they are to mutually agree on the fifth member. (Def.’s

Ex. B.) In May 2009, Plaintiff identified the two HVA employees she wanted to serve as

her representatives on the GRB. She also listed five individuals to be considered as the

fifth member of the GRB. (Id.) HVA subsequently informed Plaintiff that her two choices

for the GRB were accepted, identified its choices for its own GRB representatives, rejected

Plaintiff’s initial suggestions for the fifth member, and suggested ten other employees for

her consideration. (Def.’s Ex. H, 5/5/09 email from Maryann Voss to Plaintiff.) After some

negotiations back and forth, Plaintiff and HVA agreed on the fifth member of the GRB –

Brian Merkle. (Id., 5/8/09 and 5/13/09 emails between Voss and Plaintiff.) Witness lists

were exchanged via email. Plaintiff listed eight, including HVA’s President and CEO Dale

Berry. HVA informed Plaintiff that it did not plan on calling any witnesses that “are not on

your list.” (Def.’s Ex. J, 6/2/09 email from Voss to Plaintiff.) 

The GRB Hearing was held on June 9, 2009. On June 12, 2009, HVA sent Plaintiff

a letter notifying her of the GRB’s findings that her requested relief should be denied and

that the decision to terminate her for benefits fraud should be upheld. The GRB’s decision

was unanimous. (Def.’s Ex. K, 6/12/09 letter to Plaintiff.) On June 29, 2009, Plaintiff filed

this action against HVA. 

5. Plaintiff’s Complaint

Plaintiff’s complaint asserts that she was eligible for and did receive intermittent FMLA

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leave for her migraine headaches in October 2008. (Compl. at ¶¶ 5, 69-70.) She alleges

that HVA improperly interfered with her FMLA leave and retaliated against her in violation

of the FMLA by terminating her on January 20, 2009. (Id. at ¶¶ 73-81.) Plaintiff further

alleges that Defendant HVA improperly forced her to waive her FMLA rights in violation of

that Act when it (1) terminated her for misuse of her FMLA leave without first requesting

that she obtain re-certification concerning her migraine headaches, and (2) required her to

submit her FMLA-related claims to the GRB for a final and binding decision. (Id. at ¶¶ 82-

86.) In Count II of her complaint, Plaintiff seeks an order vacating the GRB’s decision

affirming her termination. (Id. at ¶¶ 88-107.)

II. Standard of Review

Defendant moves for dismissal based in the alternative on Fed. R. Civ. P. 12(b)(1),

Rule 12(b)(6) and Rule 56. Because both parties rely on evidence outside of the pleadings,

this Court construes the motion as one for summary judgment under Rule 56. See Fed.

R. Civ. P. 12(d). Summary judgment is appropriate where “the pleadings, the discovery

and disclosure materials on file, and any affidavits show that there is no genuine issue as

to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(c). A moving party may meet that burden “by ‘showing’-that is, pointing out

to the district court- that there is an absence of evidence to support the nonmoving party’s

case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). When the moving party has met

its burden under rule 56(c), “its opponent must do more than simply show that there is

some metaphysical doubt as to the material facts.” Matsushita Electric Industries Co. v.

Zenith Radio Corp., 475 U.S. 574, 586 (1986). Ultimately a district court must determine

whether the record as a whole presents a genuine issue of material fact, id. at 587, drawing

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“all justifiable inferences in the light most favorable to the non-moving party,” Hager v. Pike

County Bd. Of Education, 286 F.3d 366, 370 (6th Cir. 2002).

III. Analysis

This matter comes before the Court on Defendant HVA’s motion to dismiss pursuant

to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6); or, in the alternative, for

summary judgment pursuant to Rule 56(c). Defendant argues that (1) Plaintiff knowingly

and voluntarily agreed that HVA’s GRB was the exclusive forum for her employment-related

claims and that its decision would be final and binding; (2) the FMLA does not prevent

Plaintiff’s waiver of the right to a judicial forum; (3) the GRB’s procedures comport with

elementary fairness; and (4) Michigan Court Rule 3.602(J) does not apply to HVA’s GRB

and thus cannot be used to vacate the GRB’s decision. 

Plaintiff responds that (1) Defendant’s motion is premature; (2) the FMLA expressly

prohibits the waiver of FMLA claims; (3) she did not knowingly and voluntarily agree to

submit all of her employment-related disputes exclusively to the joint employer-employee

GRB where the resulting decision would be final and binding; and (4) the GRB process did

not comport with elementary fairness as defined by the Michigan Supreme Court. The

Court begins its analysis with Plaintiff’s first argument.

A. Defendant’s Motion Is Not Premature

Plaintiff has not persuaded the Court that additional discovery is necessary to render

a decision. Defendant’s motion requires this Court to examine Plaintiff’s employment

application, employment manuals, and published policies and determine (1) whether

Plaintiff agreed to have the GRB as the exclusive remedy for all her employment-related

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disputes; (2) whether the GRB process, as described in those employment documents,

comport’s with Michigan’s concept of elementary fairness; and (3) whether the FMLA

expressly prohibits the waiver of FMLA claims. Contrary to Plaintiff’s arguments here, the

record evidence is sufficient to answer the first question, and the second and third

questions are ones of law for the Court. See Renny v. Port Huron Hospital, 398 N.W.2d

327, 329 (Mich. 1986) (observing that “the question whether the grievance procedure

afforded plaintiff elementary fairness [is] a question of law which should not [be] submitted

to the jury.”); Seawright v. Am. Gen. Fin. Servs., Inc., 507 F.3d 967 (6th Cir. 2007) (holding

that the plaintiff employee had knowingly and voluntarily waived her right to sue her

employer for violation of the FMLA in a judicial forum and reversing the district court’s

denial of her employer’s motion to compel arbitration); Pellow v. Daimler Chrysler Servs.

N. Am., L.L.C., No. 05-73815, 2006 WL 2540947, *7 (E.D. Mich. Aug. 31, 2006) (holding

that FMLA claims are arbitrable). 

B Plaintiff Knowingly and Voluntary Waived Right to Judicial Forum 

The Michigan courts have long recognized that “‘[t]he employer can avoid the perils

of jury assessment [where the presence of just cause for discharge is disputed] by

providing for an alternative method of dispute resolution.’” Thornsberry v. North Star Steel

Co., No. 90-CV-73216, 1991 WL 501465, *3 (E.D. Mich. July 22, 1991) (quoting Toussaint

v. Blue Cross & Blue Shield of Michigan, 292 N.W.2d 880, 897 (Mich. 1980)). The

Michigan Court of Appeals, applying Toussaint, has held that “where a fair grievance

procedure, set forth in an employee manual, is used to review an employer’s decision to

discharge an employee, and results in a final and binding decision, summary judgment on

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a wrongful discharge claim, in favor of the employer, is appropriate.” Id. (citing Khalifa v.

Henry Ford Hosp., 401 N.W.2d 884, 890 (Mich. Ct. App. 1986)). 

In Renny, the Michigan Supreme Court addressed circumstances similar to those

presented here. An internal grievance process was established by the employer for all

employment-related disputes. The resulting decision was to be final and binding on both

parties. The Renny Court held that “where an employee has expressly consented to submit

a complaint to a joint employer-employee grievance board established by the employer with

the knowledge that the resulting decision is final and binding, the decision shall be final

unless the court finds as a matter of law that the procedures used did not comport with

elementary fairness.” Renny, 398 N.W.2d at 329. 

Despite Plaintiff’s claims to the contrary, her “knowing” consent to submit her

employment-related complaints to HVA’s joint employer-employee grievance review board

is established in numerous ways. For example, she signed a document acknowledging that

she had received and understood HVA’s Operations Policies and Procedures Manual and

that she was responsible for keeping the manual updated as revisions or additions were

made. (Def.’s Ex. D.) That employee manual describes HVA’s four-step grievance policy,

and unambiguously states that the GRB’s decision at Step 4 “will be final and binding on

all parties.” (Def.’s Ex. B.) It also advises employees to review HVA’s “Grievance Review

Board Procedures - Administrative Policy No. 415.” (Id.) Administrative Policy No. 415

reminds employees that “[a] GRB hearing is an aggrieved employee’s sole and exclusive

remedy and decisions of the Board are final and binding on both the employee and the

company.” (Def.’s Ex. C.). Plaintiff’s awareness of these policies is evidenced by her past

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use of the GRB process. (Def.’s Ex. E.) 

Despite the above, Plaintiff argues that her waiver of the right to a judicial forum was

not knowing and voluntary because (1) her employment documents do not expressly state

that she was giving up her right to have a jury consider her employment disputes; (2) she

could not revoke her consent; and (3) she was not advised to consult with an attorney

before consenting to the GRB alternative dispute resolution process. Plaintiff’s arguments

fail for a number of reasons, including her misplaced reliance on her employment

application while ignoring her subsequently signed acknowledgment of receipt of HVA’s

employment manual and her subsequent use of HVA’s grievance procedures in the precise

manner set out in her employment documents.

This Court considers the following five factors when “determining whether an

employee ‘knowingly and voluntarily’ waived the right” to sue in court: “‘(1) plaintiff’s

experience, background, and education; (2) the amount of time the plaintiff had to consider

whether to sign the waiver, including whether the employee had an opportunity to consult

with a lawyer; (3) the clarity of the waiver; (4) consideration for the waiver; as well as (5)

the totality of the circumstances.’” Seawright v. Am. Gen. Fin. Servs, Inc., 507 F.3d 967,

974 (6th Cir. 2007) (quoting Morrison v. Circuit City Stores, Inc., 317 F.3d 646, 668 (6th Cir.

2003) (en banc)). As shown below, consideration of each of these factors shows that

Plaintiff knowingly and voluntarily waived her right to pursue her employment-related

disputes in court. 

First, Plaintiff here, like the plaintiffs in Seawright and Morrison, is educated and

capable of understanding the terms of her employment agreement. Not only did she

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understand the alternative dispute resolution terms of her employment agreement, Plaintiff

used them in the precise manner described in that agreement. 

Second, despite her claims to the contrary, Plaintiff had ample time between applying

for her job and attending orientation to reconsider consenting to HVA’s policy of using the

GRB as the final and binding decision maker for all employment-related disputes and

waiving the right to sue in court. Likewise, she had ample time to consult with an attorney

on this issue. Facts weighing against Plaintiff’s arguments were recently discussed in a

similar case and apply here as well. “Plaintiff did not request extra time to consider the

Employee Agreement or to contact a lawyer. Moreover, Plaintiff did not indicate to

Defendant he did not understand . . . any portion of the Employee Agreement.” Moore v.

Ferrellgas, Inc., 533 F. Supp.2d 740, 749 (W.D. Mich. 2008). 

Third, despite Plaintiff’s claims to the contrary, HVA’s employment documents are not

required to expressly state that employees are waiving their right to a jury trial. Id. (citing

decisions). See also Thornsberry, 1991 WL 501465 at **1, 3 (granting summary judgment

for the defendant employer because the plaintiff employee had grieved the termination

decision through a procedure described in the employment manual as “final and binding

for the employee and the company”); Khalifa, 401 N.W.2d at 887-890 (same). Finally, that

Plaintiff and Defendant HVA mutually promised to be bound by the GRB’s decisions “is

enough to ensure mutuality of obligation and thus constitute consideration.” Seawright, 507

F.3d at 974. 

Plaintiff next argues that the GRB’s decision is unenforceable because the GRB

process is unfair. 

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Plaintiff’s employment agreement does not contain an arbitration clause. Accordingly,

her reliance on the discussion in Rembert v. Ryan’s Family Steak Houses, Inc., 596 N.W.2d

208, 227-230 (Mich. Ct. App. 1999), about “fairness-related requirements on arbitrators”

when the parties’ employment agreement has an arbitration clause is misplaced. 

19

C. The GRB Procedures Comport With Elementary Fairness

The Michigan Supreme Court’s decision in Renny governs this fairness issue.3

 There,

the Court observed that it had “recently agreed with the United States Supreme Court that

a decision of a joint employer-employee grievance committee should be granted the same

deference as that afforded an independent arbiter.” Renny, 398 N.W.2d at 337 (citing

Fulghum v. United Parcel Serv., Inc., 378 N.W.2d 472 (Mich. 1985)). It further observed

that “[a]n adjudicative determination by either an administrative tribunal or by arbitration

may be challenged on procedural grounds.” Renny, 398 N.W.2d at 338. The Court then

listed the five essential elements for fair “joint employer-employee grievance committee”

proceedings:

1) Adequate notice to persons who are to be bound by the adjudication;

2) The right to present evidence and arguments and the fair opportunity to rebut

evidence and argument by the opposing argument;

3) A formulation of issues of law and fact in terms of the application of rules with

respect to specified parties concerning a specific transaction, situation, or status;

4) A rule specifying the point in the proceeding when a final decision is

rendered; and,

5) Other procedural elements as may be necessary to ensure a means to

determine the matter in question. These will be determined by the complexity

of the matter in question, the urgency with which the matter must be resolved

and the opportunity of the parties to obtain evidence and formulate legal

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contentions.

Id. (citing Restatement Judgments, 2d, §§ 83(2) and 84(3)(b)). 

Step 4 of HVA’s grievance procedure, as evidenced from Plaintiff’s use of that

procedure in connection with her termination, comports with the Renny standards for

elementary fairness. First, there is no question that Plaintiff had notice of the challenged

GRB procedures because it was her email to HVA that invoked them. (Pl.’s Ex. G, 2/21/09

email.) Second, Plaintiff was allowed to present evidence, witnesses and arguments and

to rebut the evidence, witnesses and arguments raised by HVA. (Def.’s Ex. C, “Grievance

Review Board Procedures - Administrative Policy No. 415.”) Third, Plaintiff was allowed to

formulate the issues she wished the GRB to address at the hearing; i.e., that she was

wrongfully terminated, that her employer HVA was improperly interfering with her FMLA

rights and wrongfully retaliating against her for using her approved FMLA leave, and that

HVA should have allowed Plaintiff to obtain her physician’s re-certification of her migraines

if HVA questioned whether she continued to suffer from debilitating migraine headaches.

She was also allowed to present evidence and arguments supporting her requested relief;

i.e., that she should be reinstated to her former position and be awarded back pay, actual

damages, double damages, interest, and her attorney fees. The issues Plaintiff identified

and her requested relief were addressed at the GRB hearing. (Pl.’s Ex. 6, 6/9/09 GRB Hrg.

Tr.) Fourth, the GRB procedures provided for deliberation by the GRB after hearing from

the aggrieved employee and her witnesses, HVA management and its witnesses, and

rebuttal from Plaintiff. (Def.’s Ex. C.) As required under HVA’s grievance review

procedures, Plaintiff was informed in writing of the GRB’s findings and final decision three

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days after the hearing. (Def.’s Ex. K, 6/12/09 HVA letter; Def.’s Ex. C.) HVA’s grievance

procedures also require that the GRB hearing be electronically recorded and that the

findings and final decision of the GRB be read into an audio recording device that is saved

for at least three years. (Def.’s Ex. C.) Plaintiff received a copy of the GRB hearing

transcript. (Pl.’s Ex. 6.) Fifth, similar to the grievance process approved by the court in

Thornsberry, the method for choosing the GRB at issue here “helped to ensure a fair

determination” because “[t]wo members were selected by [the employer], two by [plaintiff

employee], and one by mutual agreement by plaintiff and defendant [employer]. Such a

procedure provided for an equal, if not neutral, . . . review board.” 1991 WL 501465 at *5.

Also similar to the grievance process approved in Thornsberry, Plaintiff was allowed to

appear at the hearing, to make arguments, and to question witnesses. Likewise, the GRB’s

decision “was final and binding upon both parties.” Id. 

Contrary to Plaintiff’s arguments here, fairness does not require that she be

represented by counsel at the GRB hearing. Likewise, fairness does not require that she

have a neutral arbitrator, a full-range of discovery similar to that available in litigation, and

suffer no interruptions when presenting her arguments before the GRB. Similar arguments

were rejected in Khalifa, 401 N.W.2d at 897-98, and Thornsberry, 1991 WL 501465 at * 6

(observing that a grievance board is “not required to act as a court of law would in hearing

a wrongful discharge case. . . . Indeed, plaintiff’s argument as to law and burdens would,

if accepted, replace the ‘elementary’ concept of the Renny fairness requirements with a

‘procedural’ concept of fairness equivalent to court proceedings.”). 

Having determined that Plaintiff’s waiver of a judicial forum was knowing and voluntary

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and that the GRB procedures comport with elementary fairness, the Court now addresses

Plaintiff’s claim that the FMLA precludes the waiver of her FMLA rights.

D. Plaintiff’s “Waiver” Arguments

Relying on federal regulations enforcing the FMLA, Plaintiff argued before the GRB

that her termination must be reversed and argues here that the GRB’s decision must be

vacated. Plaintiff is mistaken. It is not disputed that the FMLA prohibits HVA from

interfering with Plaintiff’s legitimate use of her FMLA leave and from retaliating against

Plaintiff for that use. See 29 C.F.R. § 825.220. Likewise, it is not disputed that the federal

regulations provide that “[e]mployees cannot waive, nor may employers induce employees

to waive, their prospective rights under FMLA.” Id. at § 825.220(d). Plaintiff’s arguments,

however, that the FMLA precludes her waiver of a judicial forum or that HVA’s grievance

review process improperly forces her to waive rights afforded her under the FMLA lack

merit.

The federal courts have observed that the FMLA does not preclude the waiver of the

right to a judicial forum. For example, in Seawright v. American General Financial

Services, 507 F.3d 967 (6th Cir. 2007), the Sixth Circuit upheld an employee’s knowing and

voluntary waiver of her right to sue her employer for violating her FMLA rights in a judicial

forum. In Pellow, 2006 WL 2540947 at *7, under facts similar to those presented here, this

Court held that FMLA claims are arbitrable. Plaintiff has not presented the Court with

contrary authority. She has not identified any FMLA language or case law supporting her

claim that an employee cannot agree to have her FMLA-related claims submitted to a joint

employer-employee grievance board for a final and binding decision. As discussed above,

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Plaintiff has not convinced this Court that HVA’s grievance review process is unfair. As

discussed below, she has not shown that her knowing and voluntary agreement to submit

her FMLA claims to the GRB resulted in the waiver of any substantive rights or remedies

available under that Act. 

Contrary to her arguments here, Plaintiff was not forced to waive any substantive

rights or remedies available to her under the FMLA. At the GRB hearing, Plaintiff

presented evidence and arguments on her claims that Defendant HVA had interfered with

her FMLA rights and retaliated against her for taking FMLA leave when it terminated her.

HVA provided opposing evidence and arguments. Specifically, Plaintiff argued that,

because HVA doubted the continuing validity of the serious medical condition that gave rise

to her intermittent FMLA leave – migraine headaches, it should have requested

recertification of that condition rather than terminating her. See 29 C.F.R. § 825.308. She

argued at the GRB hearing and continues to argue here that she cannot be forced to waive

the opportunity to have her medical condition recertified and any attempt by HVA to do so

violates her FMLA rights. Defendant HVA responded that Plaintiff has consistently

misconstrued the reason for her termination. It informed Plaintiff and the GRB that Plaintiff

was terminated for benefits fraud in connection with her intermittent FMLA leave. It was

not contesting that Plaintiff continued to suffer from migraine headaches. Rather, it

terminated Plaintiff because she was not using her migraine-related FMLA leave for that

purpose and was lying to HVA about it. HVA presented evidence to Plaintiff and the GRB

supporting that claim. The GRB, apparently finding HVA’s evidence and arguments

persuasive, unanimously upheld HVA’s decision to terminate Plaintiff’s termination for

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FMLA-related benefits fraud. 

E. Michigan Court Rule 3.602(J) Does Not Apply

Plaintiff also argues that the GRB’s decision upholding her termination should be

vacated because it does not comply with the requirements set out in Michigan Court Rule

3.602(J) for statutory arbitration agreements. Plaintiff’s employment documents do not

contain an arbitration agreement. Accordingly, Plaintiff’s reliance on a Michigan Court Rule

that governs statutory arbitration under Michigan Compiled Laws §§ 600.5001-600.5035

is misplaced. 

IV. Conclusion

For the above-stated reasons, Defendant’s motion is GRANTED. Plaintiff’s claims are

DISMISSED WITH PREJUDICE.

s/Nancy G. Edmunds 

Nancy G. Edmunds

United States District Judge

Dated: December 14, 2009

I hereby certify that a copy of the foregoing document was served upon counsel of record

on December 14, 2009, by electronic and/or ordinary mail.

s/Carol A. Hemeyer 

Case Manager

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