* 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 5RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0247P (6th C ir.) File Name: 03a02 47p.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

NC ., 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: July 25, 2003

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, Grand Rapids, Michigan, for Appellee. 2 McMullen v. Meijer, Inc. No. 01-1211

ON BRIE F: P atrick M. Kirby, F lint, Michigan, for Appellan t. Jeffrey Scott Rueble, Gra nd Rap id s, Michigan, for Appellee.

_________________

OPINION

_________________ PER CURIAM. Appellant Wendy McMullenbrought

this actionagains t her f

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

judgment that her

Title VII claims are not

subject to the manda

tory pre-dis p ute arbitration agreement she sig ned upon accepting employ ment with Meijer. A ltho ugh McMullenacknow ledge s that the terms of the arbitration agreem e ntcover her statutory employment discrimination cl aims, she conte

nds that th e arbitr

ation ag reemen t is unenfor ceable with rega rdto her Tit

le VI I cla ims beca use it grants Meijer exclusive control over the pool of potential arbitrators from which the arbitrator is selected.

After in it ia ll y de nyi ng Me ij er ’s su mm ar y judgment mo tion, the district court reconsidered and g ranted s ummary judgme

nt infavor of Meijer in light of a perceived change in contr olling
caselaw. McMullen appeals the grant of summary judgment inf avo r of Meijer and also the denial of her summary judgment motion. We r

everse both ruling s because we find that Meije r’s e xclusive control over the pool of potential arbitrators prevent s McMullen from eff ectively vindic atin g her statutory rig

hts.

I.

In1989, Meijer

hi red McMu

llen as a store detective a

t its store in Flint, Michigan. McMullen faced d iscipline in1998 for an in c ident involving her pursuit and confrontation of a juvenile shoplifter in the store parki ng lot. Meijer offered McMullena choice between demotion wi t h a 33% de crease insalary, or outr

ight terminatio n. McMulle n choseNo. 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. terminationand decided to challenge her disci plin e thro ugh Meijer’s termination appeal procedure (TA P).

The terms of t

he TAP est

ablish a two-step procedure requiringbinding a

rbitrati on of all d

isputes a ris i ng out of terminationof employment. The TAP expressly incorpora tes th e Employment Dispute Resolution Rules of the Ameri ca n Ar bitra tion Association (AAA). 1 Further, the TAP specific ally

asserts t hat:

This p roce dure is intended to be the sole and exclusive remedy and forum for all claims arising out of or relating to an eligible team mem ber ’s termination from employ ment.
The decision

and awa rd of the arbitra tor is fina

l an d binding between

the parties as to all claims arising out of
or relating to an 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 cour

tor other court of competent jurisdiction. Contemporaneous to hiring McMullen, Meijer had prov ided her with a copy

of an employee

handboo k describingboth the TAP and t he company’ s policy of terminating employees onl y w ith “just cause.” McMullen had thensigned a form acknowledging recei pt o f the handbook and asse nting to t he compa ny’ s policies

and proc edures. Uponinst itut ing t erm ination a ppeal pr

oceedin gs, McMullenargued that her discharg e had been motivated by
aninte nt to discriminate against her on the basis of her gender. Meijer de

nied her appeal i nternal ly and informed

her that, “[i]f you

would like to contest the results of this further 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. review, you

must request an ar

bitrati on 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 arbitra

tors, ea ch of

wh om mu st be : ( 1) an at to rn ey, (2) un em pl oye d b y an d u na ff il ia te d w it h t he co mp an y, (3) gener ally recog

nized as a neutral and experienced labor and employment arbitrator, and (4) listed on the rosters of the FederalMediation

and Conci l iatio n Service (FMCS) or the AAA, as well a s other a

rbitrati on roster

s. 2 Then, counsel for the compa

ny a nd the aggrieve d employ

ee mutua lly select an arbitrator fromthat pool by a

lternati vely striking names unt

il only one remains. O n August 20, 1998, counsel for McMullenand Meije

r, follo wi ng this procedure, selected arbitra tor William D aniel to h ear McM ullen’s a ppeal. 3

Several months later, and only one da y pr iorto the scheduled date of the arbitration hearing, McMullen filed this declaratory

judgment

a ction in state court challenging the fairne ss of the TAP’s arbitrator-selection process. Asserting federal question jurisdiction, Meijer removed the action

to the United States District Court for the Easter n District of Michigan.

OnDecember 13, 1999, Meijer brought a motion to compel arbitration and for summary judgment. On March

23, 2000, th e district court denied both motions from the bench. Th e court’s ruling indicated that the procedures used by Meijer to select an arbitrator did not comport with the requisite level ofNo. 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. fairnes s for such mandatory-arbitration contracts to be bind ing. In c onjunction with its decision, the court criticized the extent of control exercised by Meijer over the arbitral panel. The court also stated, “I’ m sorry that there wer e n ot cross motions in the case. There weren’t, so we’ll still have this case alive here.”

On September 21, 2000, McMullen moved for summary judgmen t. On Octobe

r 2, 2000, Meijer mov ed for reconsideration of its earlier motions based on this court’s interveningdeci sion in Haskins v. Prudential Insurance Compa nyof America , 230 F.3d 231 (6th Cir. 2000). Th e districtcourt held a hearing on the motions on November 27, 2000, and subsequent ly d enied McMullen’s motion for summary ju dgmen t, granted Meijer’s motion fo r reconsideration, and, upon reconsideration, granted Meijer ’s motions for summary judgment a nd to compel arbitration. 4

II.
The district co urt’s d ecision to grant Meijer’s motion for summary judgment is reviewed de novo , Smith v. Ameritech , 129 F.3d 857, 863 (6th Cir . 1997), a s is the dist ric t cou rt’s decisionto grant Meijer’s motion to compel arbitration, Wiepking v. Prudential-Bache Securities, Inc. , 940 F.2d 996, 998 (6th Cir. 1991). Similarly, the district court’s decisions regarding the existence of a va l id arbitration agreement and 6 McMullen v. Meijer, Inc. No. 01-1211

the arbitrability of a

particular dispute are reviewed de novo

. Floss v. Ryan’s Family Steakhouses, Inc. , 211 F.3d 306, 311 (6th Cir. 2000). A d i strict court’s denial of summary judgment is an interlocutory ord er that is not ordinaril

y appealable, but when the appeal from a denial of s ummary judgment is presented

together with an appeal from a g rant of summary judgment, we have jurisdict ion to review the de

nial. Thomas v. United States , 166 F.3d 825, 828 (6th Cir. 1999). When a district court denies a motion for summary judgment because it determines that there e xists a genuine issue of material fact, we review the denial onl y for an abuse of discretion. Garner v. Memphis Police Dep’t , 8 F.3d 358, 363 (6th Cir. 1993). When, however, the district co urt 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 S upreme Court has held that agreements to arbitra t e employment

disputes as a cond ition of employment are gener ally enforceable under the Fe deral Arbitration Act, 9 U.S.C. § 1 et

seq. (FAA). Circuit City Stores, Inc. v. Adams , 532 U.S. 105, 109 (2001). This court has consiste ntly upheld the validity

of pre-dis pute mand

atory arbitra tion agr eements

. Haskins , 230 F.3d a

t 239; Willis v. Dean W

itter Rey nolds, Inc. , 948 F.2d 3 05, 310 (6 th Cir. 1991 ). It is well settled that judicial protection of

pre-dispute arbitralagreements extends to agreements to ar bitrate s tatutory

emplo ymen t discrimination claims. Gilmer v. Interstate/Johnson Lane Corp. , 500 U. S. 20, 26 (1 991); Willis , 948 F.2d at 312. Arbitrationof statutory

claims is a

ppr opria te be caus e “[b] y agreeing to arbitr ate a sta tutory claim, a p arty

does not fo rgo the substantive rights a

fforde d by

the statut e; it only submits to their resolution in an ar

bitral, r ather th an a judic ial, forum.” Gilmer , 500 U. S. at 26 (qu otin g Mitsubishi Motors Co rp. v

. Soler Chrysler-Plymouth, Inc ., 473 U.S. 614, 628 (1985)). Notwithstanding a general policy favoring suc h agree ments, there are circumstances under which co urts willNo. 01-1211 McMullen v. Meijer, Inc. 7

notenforce pre-dispute mandatory arbitrati on agr

eements with regard to statutory

employment discrimin ation cla ims. In Floss , we he ld th at , “ ev en if ar bi tr at io n i s g en er al ly a suitable forum for resolving a particular statutory claim, the specific arbitral forum provide d un der an arbitration agreement

must nevertheless allow for t he e ffective vindication of that claim.” Floss , 211 F.3d at 313. Th e central issue in thi s case is whether Meijer’s exclusive control
over the p oo l of potential arbitrators renders the arbitral forum
so fundamentally unfa

ir as to preve nt McMullen from effec tively

vindicating her statutory

rights, there by precludi ng enforcement

of the pre-dispute agreement to ar bi t rate the statutory claims.

Before reachi

ng this c entral is sue, howe ver, we must address tw o p re li mi na ry a rg um en ts ma de by Meije r. First , Meijer argues that, regar

dless of the viability of the predispute agree ment, McM

u llen should be c ompelled to arbitrat e he r claims b ecause she volunt

arily and knowi

ngly agreed to arbitration after

the d ispute had

occu rred . Wh e n Meijer internally revie

wed McMullen’s claim af ter her termination, it issued a “results of review” statement on a Meijer “Termination Appeal Form.” The for m states that

to chall enge the t erminati on, an emp loy ee must re quest arbitration. Part 3 of the form states, “ I re quest tha

t my c ase be submitted to arbitration in accordancewith the Company’s TerminationAppeal Procedure.” Benea th this stat

ement, the form is signed solely by

Wendy McMullen.

McMullendid not agree to waive any right to sue b y si gningthis form. The form was merely an admini strativ e step required

to initiate the arbitration process that McMullen agreed to upon he

r hire. T he form it self

does not constitute an arbitration

agreement because it conta ins no promis e not to
sue on behalf of either part y. M o reover, the form does not constitute an enforceable ag

reement because it lack s contractual consider

ation. I t is an ele

mental tenet of Michigan contract law, whi ch applie s here, t h at p ast consideration

cannot serve as legal consideration for a 8 McMullen v. Meijer, Inc. No. 01-1211

subsequent

promise. Shirey v. Camden , 22 N.W.2d 98, 102 (Mich. 1946). Me ijer did not offer M cMull en any new consideration

in return for

signing the form, which

Meijer di d not sign. Meijer’s second

preliminary ar

gument is that our

decision in Haskins prevents us from consider ing w hether a predispute arbitration agreement

a llows for the effective vindication of statutory

claims. Meijer notes that we decided Haskins after w e decide d Floss . In Haskins , this cour t held that “absent a showing

of frau d, duress , mis take, or

some other ground upon which a contr

act m ay be voided, a

court must enforce a contractual agreement to ar bitrate.” Haskins , 230 F.3d at 239. M eije r requests that we construe Haskins
na rr ow ly, arguin

g that Mc Mullen ca

n only esc ape from her agree me n tto arbitrate by showing “fraud, duress, or mistake.” Inother words, Meijer contends that McMullen cannot ask a court to “ inquire into the fa irness of the terms

of these arbitration

c ontract s and to voi d them bec ause one of their terms - the method o f

selectin g the ar bitrator - is alleg edly unfair to her.” The distr

ict court concurred with Meijer, opining that “

Haskins has substantially narrowe d the grounds
on wh ich one may c

hallenge a contractual ag reement t o arbitra te .” Consequently, the district court g ranted Meijer’s motion for reconsideration.

The di stri ct cou rt’s r ulin g, however, overstates the impact of Haskins on th e agreem ent si gn ed by McM ul len . In Hask in s , the plaintiff signed an agree ment with a securities dealer s’ association binding him to arbitrate any disputes arising with his employer. The pl aintiff’s challenge to the agreement

focused on his ignorance as to the existence of the

m andatory

arbitra tion agr eement, rather

th an on any perceive d unfairness in the arbitration pro cess. Haskins , 230 F.3d at 239-40. The Haskins court adopted a contracts-law approach to dete rmi ning the

validity of the ag

reemen t, holding that, despite plaintiff’s ignorance, the agree ment was e

nforce able absent fraud, mist ake, duress, or another contractual g round for challenge.No. 01-1211 McMullen v. Meijer, Inc. 9

5 The “effective v in dica tion” test referenced in Floss deri ves f rom Gilmer , where the Supre me Court proclaimed, “[S]o long as the prospective lit igant

eff ecti vely may vindicate [hi s or her] stat utory cause of acti on in the arb itral forum , the statute w ill continu e to ser ve bo th its remedial and d eterre nt f u ncti on.” Gilmer , 500 U.S. at 28 (quoting Mits ubishi

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

6 Although the Rem bert decis ion predated Haskins , it did not pr eda te Beaucham

p v. Gr eat Wes t Li

fe As surance Company , 918 F. Supp. 1091 (E. D. M ich. 19 96) , the und erlying case on which Haskins rested its holding. Indee d, the language in Haskins stati ng that “absent a showing of fraud, duress, mist ake or some oth er ground upon whi ch a contra ct may be voide d, a cour t must en force a con tractua l agree men t to arb itrate,” is ado pted fr om Bea uch amp , 918 F.Supp. at 1098. Thus, the Remb er t
cou rt’s conc lusion tha t Beaucha mp permits a fai rness chall enge to an arbi tra ti on agr eement

appli es wi th e qual forc e to Haskins

. Inargu ing tha t McMullen can only esc ape arbitration by showing fraud, mistake, or duress, Meijer igno res th e remainingportion of the holding in Haskins , where this court made an all owance for “so me oth er gr ound up on which a contract may be voided.” Haskins , 230 F.3d a t 239. This langua ge suffi ciently encompa sses the “effective vindication” analy sis prescr ibed by th e United States Supreme Court and endorsed by this circuit in Floss

. 5 Indeed, subsequent ca ses have arrived

at t his precise conclusion, construing the Floss “e ffect ive vindication” analysis as a nother ground on which
a ma ndatory ar

bitration agreement can be voided. See Cooper v. MRM Inv. Co. , 199 F.Supp.2d 77 1, 7 75 (M.D. Tenn. 2002); French v

. First Union Securities, Inc. , 209 F.Sup p.2d

818, 826 (M.D. Tenn . 2002); Rembert v. Ryan’s Steakhou se , 596 N.W.2d 208, 218 (Mich. App. 1999). 6

For example, in C

oope r , the court extensively discussed Haskins in the cou

rse of asses sing the

validity of a pre -dispute agreement

to arbitr ate signed by

a resta urant em ployee. I n so doin g, the court essentially divided the Haskins analy sis into t wo separate stages. First, it undertook the Haskin s contractual analysis that Meijer promotes in the instantappeal
as the only

means for invalida

ting such an ag

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

Se co nd ly, contrary

to the position Meijer

espouses, the court held that :
Even if this Court found no contractual defenses to the enforcement

of the [arbitration agreement], Plaint iff’ s substantive rights are affected by the agree ment. Cour

ts have recognized that, alth ough arbitration agreeme nts are gener ally favored, they

will not be enforced if they affect
anindividual’s substantive rights

. Gilmer , 500 U.S. at 28, 111 S.Ct. 1647. Where an individual is un ab le to vindicat e his or her

rights b ecause

of an obst

acleerected by an arbitration agreement, the cour t ma y not enforc e that arb itration a

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

Fu rthermore, even if Meijer’s interpretation of Has kin s were correct, Haskins has been superseded by ou r en banc decisioninMorrison v. Circuit City Stores, Inc. , 317 F.3d 646 (6th Cir. 2003). As we held in Morrison , “[t]he Supr eme Courth as made clear that statutory rights, such as those created by Ti tl e VII, may be subject to manda tory arbitration only if the arbitral forum permits the effective vindication of those rights.” 317 F.3d at 658. “Un der Gilm er , the arbitral forummust provi de lit igants with an effective substitute for the judicial forum. . . .” Id. at 659. 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 i s comme ndably

fair exce

pt in one imp ortant re spect: it grants Meijer un

ilatera l control over the p ool of pote n tial arbitrators.

McMullenrelies heavily

on Hooters of America v. Phillips , 173 F.3d 933 (4th Cir. 1999), to support her argument tha t Meijer’s TAP is so unf

air that it does not provide an effective

m eans of vindicating her Title VI I rights. I n Hooters , the Fourth Circuit invalidated an arbitration ag reemen t that itNo. 01-1211 McMullen v. Meijer, Inc. 11

found “so one-sided

that [its] only

possible p

urpose [wa s] to undermine the neutrality of the pr oceeding.” Id . at 938. The Hooters court state d, “By promulgating [a] system of warpe d rules, Hooters so skewed the process in its favor that Phillips has been denied arbitration in any meaningful sense of th e word.” Id . at 941. Many of the arbitration procedures criticize d by the Four th Circuit in Hooters

were patently

one-sided. For

example, the arbitration

agreement

at issue in Hooters

required employees to fil e a notice of

the part iculars o f their c laims, as w ell as a list of all fa

ct witn esse s along w

ith a summa

ry 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 arbi tration to

any matter, b

ut the emp loy ee could only arbitrate matter s asserte d in the notice of claim. The
co mp an y, but not the em ployee, could c reate a record or transcript of the procee ding. Th e compan y a lso retained the sole right to cancel the arbitration agree ment or br

ing suit in court to vacate or modify the arbitration award. Finally , the company could unil aterall

y mo dify th e rules at a

ny t ime withoutnotice to the e mployee , even in the middle of an arbitration hearing. Id. Moreover, the selection proces s in Hooters “[was] crafted to ensure a biased

decisionmaker.” Hooters , 173 F.3d at 938. The Hooters court described the selection procedure as follows:

The employee

and Hooters each select an arbitrator, a nd the two arbit

rators in turn se lect a third. Good enough, except that the empl oyee’ s arbitrator and the third arbitrator must be select e d from a list of arbitrators created exclusivel y by Hooters. This gives Hooters control o v er the e

ntire pa nel and pl aces no l imits whatsoever

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

ree to de

vis e lis ts of partial arbitrators who have

existing r

elationsh ips, fina ncia l o r familial, with Ho oters and its management. I n fact, the 12 McMullen v. Meijer, Inc. No. 01-1211

rules do not even

pr ohibit Hoot

ers fro m placing

its manage rs themse lves on the

list.

Id . at 938-39.

Inaddition to Hooters , McMullencites our opinion in Floss insupport of her argument that Meijer’s TAP should not be enforced int his case. In Floss , this court invalidated an arb i trationagreement that gave a third-party a

rbitration service, ED SI, c omplete discretion over the procedures and rules to be used during arbitration hearing s. Floss , 211 F.3d at 310. Bec ause EDSI

could cha

nge tho se rule s without notice, and without the consent of the claimant, we held that the agreement

to arbitrate lacked consideration and mutuality of obligation. Id . at 315-16.

Our opinion in Flo ss also criticized, albeit in dicta , the fa irness of EDSI’sarbitrator-selection process. Under EDSI ’s rules, three “adjudicators” were selected from

three se parate selecti on pools to preside over the arbitration hearing. Th e first of the se pools consisted of supervisors and managers fromanother

EDSI signatory company; the

second consisted of employees fr

om another

signatory ; and the third contained attorne ys, retired judges, a

nd other “competent professional persons.” Id . at 313-14 n.7. As described by the Floss court:
The selection process begins with EDSI furnishing both parties a list of po tential a djudicat ors o rgani zed according to each selection pool. Infor mation regarding each ad ju di ca to r’ s r ec en t e mp lo yme nt hi st or y a nd r elated biographicalinformation is provided to the parties along with this list. The parties may then move to strike any adju dicator

for cause. Following the removal of an y adjudicators f

or cau se, the pa

rties ea ch strike a name fromthe list unt

il only one name

remains f

r om each selection pool.

Id.No. 01-1211 McMullen v. Meijer, Inc. 13

Alt hough this process appears facially reasonable, w e expressed our “serious reservations as to whether the arbitral forum provided under the current version of the EDSI Rules and Procedur es is s uitable for the resolution of statutory cl aims.” Id. at 314. Spe cifical ly, we obser ved that “

th e neutral ity o f the forum is far from clear in light of the uncerta inrelationship between [the employe r] and EDSI.” Id. The record did not reflect whether E D SI, in contrast to the AAA, was a fo r-prof

it entity, but we qu

estioned wheth er a n alleged financi al relat

ionship between

the employer c ompany and EDSI, compounded by

the latter’ s pecunia

ry interest in retainingits arbitr

ation ser vice con tract, mi ght fost

er bias in favor of the employer

client. Most significantly to the present case, we found in Floss that “[i]n lig ht of EDSI ’s role in determining th e p oo l o f p ot en ti al ar bi tr at or s, an y s uch bias would render the a

rbitr al forum fundamentally unfair.” Id. (citing Cole v. Burns Int'l Security Services , 105 F.3d 1465, 1482 (D.C. Cir. 19 97) (“ At a minimum , statutor y r ights include both a

substantive protection and access to a neutral forum in which to enforce those protections.”).

Me ijer’s TAP is plainly more even-ha nded than th e arbitra tion agr eement a t issue in Hooters , which allowed for unfettered

employ er contr ol over th e potenti al arbit ral panel and co nt ai ne d a myr ia d o f u ni la te ra ll y bi ased clauses and rules, giving Hooters an a dvan tage in every aspect of the arbitration. But the arbitrator-selection process provided for under Meijer’s TAP is less fa ir tha n the arbitrator-selection process described in Floss as “fundamentally unf air.” 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 sele cted the pool of potential arbitra

tors might be biased 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[] . . . contro l ov er 14 McMullen v. Meijer, Inc. No. 01-1211

t he entire panel” exercised by the employer in Hoot ers an d rejected by the Fourth Circuit. Hoo ter s , 173 F.3d at 939. Furthermore, the arbitrator-selection proced ure used by M eij er allows it to

create the ty pe of sy mbiotic re lationship

w ith its arbitra

tors that we fear

ed would promulga

te bias in Floss

. Floss , 211 F .3d at 3 14. The r isk of bia s inhere

nt in Meijer’s procedure is demonstrated by the f act that Meijer
uses the same pa

ne l of five to seven arbitrators in each arbitration

hearing in which it

particip ates in t he state of Michigan. We find Meijer’s exclusive control over the pool of potential arbitrators particularly problematic becau s e Meijer could easily have

ado pted a procedure in which an unbiased third-party, such

as the AAAor FMCS, selected the pool of pot

ential ar bitrator s. Meijer argue s that the b ias whic h McMullen fears w ill manifest itself during her

arbitra tion hear ing is, a t this point, merely potential

bias. This is not an in signific ant arg ument. Th e Supreme Court, when presented with an allegation o f hypothetical

bias, “decline[d] to indulge the presumption that the parties and arbitral body conducting a proceeding w ill be unable or unwil lin g to retain competent, conscientious and impartia l arbi trators.” Gilmer , 500 U.S. at 30 (quoting Mitsubishi , 473 U.S. at 634). McMullen has not asserted that the particular arbitrator selected to hear her c laim is biased agains ther or th at his a

rbitration decisions in the past have unreasonably

favored Meijer.

McMullen’s complaint her e, however, goes bey ond an allegation of a potentially biased a

rbitrator b ecause McMulle 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 . . . provide prote ctions ag ainst biased panels.” Id. Meijer’s TAP contains many of the rules acclaimed

by Gilmer

for their ability to g

uard again st potenti al a rbitral b ias, but un like the r ules cons idered i

n 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 fectiveNo. 01-1211 McMullen v. Meijer, Inc. 15

substitute for a judicial forum becau se it inherently lacks
ne ut ra li ty. Therefore, we conclude that McMullen’ s Title VII claims are not subject to the man da tory pre-dispute a

rbitration agreement

she signed upon a

cceptin g emplo y

ment with Meijer. Meijer also arg ues that Gilmer

clearly est ablish es that the prefer red method for challe

nging allega tions of bia s is t o pursue th e underl

yin g claim s throug

h the arb itration process and then seek review only “[w]here th ere was evident partiali ty or corruption in the a rb itrators.” Id. (quoting 9 U.S.C. § 10(b)). While this is tru e for a llegations of potential or hypothetical bias a mong the arbitrators, it does not ap ply

to an alle gation, as is pre sent her e, that th e arbitrator

- selection

process is fundamentally unfair. The Hooters court and the Flo ss court both recognized that procedural unfairness inherent in an a r bitration agreement may be challenged

before the arbitration. When the proc ess used to select the arbitrator

is fundame

ntally unfair, as in this case, the arbi tral foru m is not an effective substitute for a judicial forum, a

nd there is no need

to prese nt separ ate evidence of bias or cor

ruptio n in the particular arbitrator 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 judgmen t to McMu

llen. We remand t

he case to the di st ri ct co ur t s o t ha t i t m ay enter judg ment in favor of McMullen in accordance with this opinion.