RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0247p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

MAUREEN HERGENREDER,

Plaintiff-Appellant,

v.

BICKFORD SENIOR LIVING GROUP, LLC,

Defendant-Appellee.

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No. 10-1474

Appeal from the United States District Court

for the Eastern District of Michigan at Bay City.

No. 09-13347—Thomas L. Ludington, District Judge.

Argued: June 8, 2011

Decided and Filed: August 30, 2011 

Before: DAUGHTREY, MOORE, and STRANCH, Circuit Judges.

_________________

COUNSEL

ARGUED: Mandel I. Allweil, HURLBURT, TSIROS & ALLWEIL, P.C., Saginaw,

Michigan, for Appellant. Jeffrey D. Hanslick, HUSCH BLACKWELL SANDERS LLP,

Kansas City, Missouri, for Appellee. ON BRIEF: Mandel I. Allweil, HURLBURT,

TSIROS & ALLWEIL, P.C., Saginaw, Michigan, for Appellant. Shaun C. Southworth,

HUSCH BLACKWELL SANDERS LLP, Kansas City, Missouri, for Appellee. 

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. Maureen Hergenreder began

working as a nurse for Bickford Senior Living Group in early November 2006. She filed

this suit after she was fired from her job with Bickford in January 2007, alleging that her

firing was in violation of the Americans with Disabilities Act. In response, Bickford

filed a motion to stay the proceedings and compel arbitration. The district court granted

1
No. 10-1474 Hergenreder v. Bickford Senior Living Group Page 2

this motion and dismissed the case, finding that Hergenreder assented to a valid

agreement to arbitrate the claims she has brought in this suit. Hergenreder now appeals.

Because there is no indication that Hergenreder was notified of the existence of

the arbitration agreement, much less that she manifested an intent to agree to its terms,

we REVERSE the judgment of the district court and we REMAND this case for further

proceedings consistent with this opinion.

I. BACKGROUND INFORMATION

Maureen Hergenreder was hired as a nurse for the Bickford Senior Living Group

in October 2006. A short time later, she was diagnosed with cancer and took a leave of

absence for treatment. The treatment was apparently successful and Hergenreder was

prepared to return to work by late December 2006, but she was told not to return by her

supervisor because the facility at which Hergenreder was to work had not yet opened and

a backup nurse was not needed. On January 12, 2007, Hergenreder was told by her

supervisor over the phone that she was fired, R. 1 at 5 (Complaint), and on January 25,

2007, Hergenreder received a letter from her supervisor stating that “Your RN status at

Bickford Cottage of Saginaw was terminated on December 12, 2006 due to your surgery

and recuperation time. Since you were a new salaried employee and did not have any

accrued PTO time or FMLA, it is HR policy to terminate you with rehire status.”

Hergenreder Br. at Ex. 10. Believing that her firing was in violation of the Americans

with Disabilities Act, Hergenreder sued Bickford in August 2009. In response, Bickford

filed a motion to stay the proceedings and compel arbitration. The district court granted

this motion and dismissed the case, finding that Hergenreder assented to a valid

agreement to arbitrate the claims she has brought in this lawsuit. Hergenreder now

appeals.

When Hergenreder began her employment, she signed numerous documents,

including her employment application, tax and insurance forms, a background-checkconsent form, a form agreeing to notify Bickford of any subsequent criminal convictions,

and a form acknowledging that she received notice of Bickford’s worker’s compensation
No. 10-1474 Hergenreder v. Bickford Senior Living Group Page 3

procedure. It is undisputed, however, that none of these documents mentioned anything

about arbitration. See Hergenreder Br. at Ex. 7 (Aff. of Maureen Hergenreder at

¶¶ 21–22); see generally Bickford Br. Hergenreder also signed an acknowledgment that

she had read and understood the terms of Bickford’s Employee Handbook.

The Employee Handbook—and whether it does or does not inform Hergenreder

of Bickford’s arbitration policy—plays the central role in this appeal. The Handbook

is divided into sixteen different sections, covering a wide variety of topics relevant to

Hergenreder’s employment. It begins by stating in Section I that “[i]t will acquaint you

with the policies and procedures that apply to your employment,” but also that “[t]his

handbook is intended as a summary only and is not a contract between Bickford Cottage

and its employees. A full copy of Bickford Cottage’s Personnel Policies is located in the

Director’s office and may be viewed by any employee.” Hergenreder Br. at Ex. 11 at

4 (Employee Handbook) (hereinafter “Handbook”). It ends by stating, in Section XVI,

that:

This handbook has been provided to you for the purpose of acquainting

you with the personnel policies and procedures, responsibilities of

Bickford Cottage. It does not constitute a contract of employment in

whole or in part. Bickford Cottage may add to, change or delete any of

the contents at any time with no notice.

Handbook at 28. Based on these statements, the parties agree that the terms of the

Handbook are not part of a contract.

What the parties do not agree on, however, is the significance of one sentence

within Section XII, which is entitled “Employee Actions,” and which provides, in full,

as follows: “Dispute Resolution Process Please refer to the Eby Companies Dispute

Resolution Procedure (DRP) for details.” Handbook at 19 (emphasis in original).

Review of the Eby Companies Dispute Resolution Procedure (“DRP”) makes clear in

both an eleven-page summary of the procedure as well as the nine-page procedure itself
No. 10-1474 Hergenreder v. Bickford Senior Living Group Page 4

1

The parties do not dispute that the claims in this suit are covered claims.

that all employees are required to submit all covered claims against Bickford to binding

arbitration.1 The procedure provides that:

This policy becomes effective on June 1, 2004 for all persons

employed by any Eby Company[, one of which is Bickford]. Any person

who applies for a job with an Eby Company on or after June 1, 2004 or

who continues to be employed by an Eby Company on or after June 1,

2004, agrees, as a condition of employment, that all covered claims are

subject to the DRP and to accept an arbitrator’s (or arbitrators’) award as

the final, binding, and exclusive determination of all covered claims.

Bickford Br. at Ex. 1 (DRP at 8). The summary contains a materially indistinguishable

statement. Id. at Ex. 1 (DRP Summ. at 2).

At the end of the DRP is a form entitled “Agreement to Dispute Resolution

Procedure,” which provides, among other things, that the signers:

understand that The Eby Group . . . has adopted a Dispute Resolution

Procedure (“DRP”) as an employee benefit for the resolution of

employment disputes. . . .

By continuing my employment with The Eby Group or by accepting an

offer of employment with The Eby Group or by submitting an application

for employment to The Eby Group, and in consideration thereof, I agree

to submit all covered claims to The Eby Group’s DRP and to accept the

outcome of the DRP including an arbitrator’s (or arbitrators’) award . . . .

THIS AGREEMENT CONTAINS A BINDING ARBITRATION

PROVISION THAT MAY BE ENFORCED BY THE PARTIES.

Id. at Ex. 1 (DRP at 9). In the Frequently Asked Questions portion of the DRP

Summary, Bickford answers the question, “Why am I being asked to sign a written

agreement to the Dispute Resolution Procedure?” with the following:

While your employment and/or continued employment is all that is

required for you to be bound to resolve your employment disputes with

The Eby Group under the DRP, the Company is committed to this new

program and is requesting every employee to commit to it in writing on

a form prepared by the Company which signed form will be placed in

your personnel file.
No. 10-1474 Hergenreder v. Bickford Senior Living Group Page 5

Id. at Ex. 1 (DRP Summ. at 5). Although the text of this answer indicates that a

“commit[ment]” is made by the parties, this commitment must be purely a symbolic one,

given that a legal commitment is made only by entering or continuing employment with

Bickford. The implicit message in this answer, then, seems to be the important one:

Bickford asks employees to sign the agreement so that there will be objective evidence

of the employee’s agreement to submit all covered claims to binding arbitration, even

though the employee’s signature is not necessary to enter into the agreement. The

wisdom behind an employer’s desire to have objective evidence of an employee’s assent

to arbitration is clear: an acknowledgment form, signed after an employee has been

given a copy of an arbitration agreement, can serve as ironclad proof that an employee

was reasonably notified of an arbitration agreement. Put another way, the

acknowledgment form decreases the possibility that Bickford might have an employee

who has never seen or signed any arbitration documents.

Hergenreder swears that she has “never seen or signed any of these documents,”

referring to the DRP. Hergenreder Aff. at ¶ 23. Moreover, she avers, “I have never, to

my knowledge, signed any Agreement with the Defendant that gave up my right to a jury

trial and that compelled me to file for Arbitration for any type of wrongful discharge

claim. No one ever even raised the issue of Arbitration in all of the forms that I signed

as part of the hiring process.” Id. at ¶¶ 21–22. Bickford has not provided a copy of the

DRP with an acknowledgment form signed by Hergenreder. Instead, it has provided an

affidavit from its Vice President of Employee Relations, Jerry Knight, who states that

the DRP “is distributed to employees.” R. 13-4 at 2 (Knight Aff.).

In response to Bickford’s Motion to Compel Arbitration, the district court held

that Hergenreder was bound by the DRP and therefore was required to submit her claims

in this suit to binding arbitration. The district court therefore dismissed this suit.

Hergenreder filed a timely notice of appeal.
No. 10-1474 Hergenreder v. Bickford Senior Living Group Page 6

II. ANALYSIS

This court reviews de novo a district court’s decision on whether to compel

arbitration pursuant to the Federal Arbitration Act. Mazera v. Varsity Ford Mgmt.

Servs., LLC, 565 F.3d 997, 1001 (6th Cir. 2009). “The court must determine whether the

dispute is arbitrable, meaning that a valid agreement to arbitrate exists between the

parties and that the specific dispute falls within the substantive scope of the agreement.”

Id. (internal quotation marks omitted).

Hergenreder makes three arguments against the district court’s order, all of which

establish, she asserts, that she is not bound by any arbitration agreement with Bickford.

First, she argues that she was never advised about any arbitration policy and that she

“never saw or signed any arbitration agreement.” Hergenreder Br. at 11; see also Ex.

7 at ¶¶ 21–23. Second, she argues that nothing in the Handbook constitutes a legally

binding contract and that nothing in the Handbook mentions arbitration. Third, she

argues that there is nothing else in the record that constitutes an agreement to submit her

claims to arbitration.

Bickford disputes only some of these contentions. First, it agrees that the

Handbook does not constitute a legally binding contract. It also apparently does not

dispute that Hergenreder did not sign the DRP, and despite Knight’s affidavit stating that

the DRP “is distributed to employees,” Bickford does not in any way dispute

Hergenreder’s sworn statement that she has not seen the DRP. Instead, what Bickford

does dispute are Hergenreder’s claims that she was not advised of the DRP and that

nothing else in the record establishes that a legally binding agreement to arbitrate was

created between Hergenreder and Bickford.

A. Michigan Contract Law Determines Whether An Arbitration Agreement

Was Formed Here.

“A written agreement to arbitrate disputes arising out of a transaction in interstate

commerce ‘shall be valid, irrevocable, and enforceable, save upon such grounds as exist

at law or in equity for the revocation of any contract.’” Javitch v. First Union Sec., Inc.,

315 F.3d 619, 624 (6th Cir. 2003) (quoting 9 U.S.C. § 2); see also 9 U.S.C. § 3
No. 10-1474 Hergenreder v. Bickford Senior Living Group Page 7

(providing for a stay of any federal lawsuit involving issues subject to an arbitration

agreement). “To enforce this dictate, the Federal Arbitration Act (FAA) provides for a

stay of proceedings when an issue is referable to arbitration and for orders compelling

arbitration when one party has failed or refused to comply with an arbitration

agreement.” Javitch, 315 F.3d at 624 (citing 9 U.S.C. §§ 3 and 4). Furthermore,

“Manifesting a ‘liberal federal policy favoring arbitration agreements,’ the FAA ‘is at

bottom a policy guaranteeing the enforcement of private contractual arrangements.’” Id.

(quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 625

(1985)). “Before compelling an unwilling party to arbitrate, the court must engage in

a limited review to determine whether the dispute is arbitrable; meaning that a valid

agreement to arbitrate exists between the parties and that the specific dispute falls within

the substantive scope of that agreement.” Id.; see also Stolt-Nielsen S.A. v. AnimalFeeds

Int’l Corp., — U.S. —, 130 S. Ct. 1758, 1774 (2010) (stating that the parties are free to

specify “the issues they choose to arbitrate,” “rules under which any arbitration will

proceed,” “who will resolve specific disputes,” and “with whom they choose to arbitrate

their disputes”) (emphasis in original).

“Because arbitration agreements are fundamentally contracts, we review the

enforceability of an arbitration agreement according to the applicable state law of

contract formation.” Seawright v. Am. Gen. Fin. Servs., Inc., 507 F.3d 967, 972 (6th Cir.

2007) (citing First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943–44 (1995)).

When it comes to “state laws applicable only to arbitration provisions,” however, the

Federal Arbitration Act preempts those state laws. Doctor’s Assocs., Inc. v. Casarotto,

517 U.S. 681, 687 (1996) (emphasis in original); see also Arthur Andersen LLP v.

Carlisle, 129 S. Ct. 1896, 1902 (2009) (“State law . . . is applicable to determine which

contracts are binding under § 2 and enforceable under § 3 if that law arose to govern

issues concerning the validity, revocability, and enforceability of contracts generally.”)

(second emphasis added; internal quotation marks omitted).

Under Michigan law, “Before a contract can be completed, there must be an offer

and acceptance.” Pakideh v. Franklin Commercial Mortg. Grp., Inc., 540 N.W.2d 777,
No. 10-1474 Hergenreder v. Bickford Senior Living Group Page 8

780 (Mich. Ct. App. 1995); see also Kamalnath v. Mercy Mem’l Hosp. Corp., 487

N.W.2d 499, 503 (Mich. Ct. App. 1992) (“A contract is made when both parties have

executed or accepted it, and not before.”). “An offer is defined as the manifestation of

willingness to enter into a bargain, so made as to justify another person in understanding

that his assent to that bargain is invited and will conclude it.” Kloian v. Domino’s Pizza

L.L.C., 733 N.W.2d 766, 770 (Mich. Ct. App. 2006) (internal quotation marks omitted).

Similarly, “an acceptance sufficient to create a contract arises where the individual to

whom an offer is extended manifests an intent to be bound by the offer, and all legal

consequences flowing from the offer, through voluntarily undertaking some unequivocal

act sufficient for that purpose.” Id. at 771 (quotation marks omitted; alteration removed).

Beyond these requirements, the elements of a valid contract in Michigan are:

“(1) parties competent to contract, (2) a proper subject matter, (3) a legal consideration,

(4) mutuality of agreement, and (5) mutuality of obligation.” Hess v. Cannon Twp., 696

N.W.2d 742, 748 (Mich. Ct. App. 2005) (quotation marks omitted). Whether the parties

have mutually agreed to be bound “is judged by an objective standard, looking to the

express words of the parties and their visible acts, not their subjective states of mind.”

Kloian, 733 N.W.2d at 771 (quotation marks omitted); see also Breitenbeck v. Merillat

Indus., L.L.C., No. 258135, 2006 WL 859421, at *2 (Mich. Ct. App. Apr. 4, 2006)

(unpublished opinion) (stating that Michigan courts look to whether the parties

“manifested an intent to be bound by [a contract’s] terms”). The party seeking to enforce

a contract has the burden of showing that it exists. Kamalnath, 487 N.W.2d at 504

(quoting Hammel v. Foor, 102 N.W. 196, 200 (Mich. 1960)).

B. Hergenreder Did Not Assent To An Arbitration Agreement With Bickford.

The district court believed that Hergenreder was bound by the arbitration terms

set out in the DRP because it believed that she was “reasonably notified of the DRP and

[she] elected to accept and continue her employment.” R. 20 at 6 (Order). This

conclusion is based on Hergenreder’s acknowledgment that she had read and understood

the terms of the Handbook, including Section XII, which is entitled “Employee Actions”:
No. 10-1474 Hergenreder v. Bickford Senior Living Group Page 9

“Dispute Resolution Process Please refer to the Eby Companies Dispute Resolution

Procedure (DRP) for details.” Handbook at 19 (emphasis in original).

Hergenreder argues that she was never informed that the DRP contained

arbitration terms and constituted an arbitration agreement. She also argues that, although

she acknowledged reading and understanding the Handbook, neither the Handbook nor

the specific reference to the DRP constitutes an agreement in any way. Indeed, the form

that she signed acknowledging her receipt of the Handbook provides that, “This

handbook does not constitute any contractual obligation on my part nor on the part of

Bickford Cottage[.]” Hergenreder Br. at Ex. 6 (Receipt of Employee Handbook Form).

Third, she argues that the district court’s interpretation of two Michigan cases involving

arbitration agreements was incorrect.

Bickford agrees that the Handbook did not form a legally binding contract with

Hergenreder. Instead, it argues that “the DRP—a document separate and distinct from

the Handbook—forms the contract,” and it claims that Hergenreder “assented” to the

DRP. Bickford Br. at 12–13. The key analytical step in Bickford’s argument comes

from the notion that Bickford needed only to “reasonably notif[y]” Hergenreder of the

arbitration agreement, which it did, Bickford argues, by requesting that Hergenreder

“Please refer to the Eby Companies Dispute Resolution Procedure (DRP) for details.”

Id. at 15–16 (citing Guelff v. Mercy Health Servs., No. 200040, 1999 WL 33444156

(Mich. Ct. App. May 25, 1999) (unpublished opinion)).

We agree with Hergenreder. There was neither an offer nor an acceptance. The

objective signs that Bickford made Hergenreder an offer to be part of the arbitration

agreement are few in number. The best Bickford can say is that Hergenreder was

informed that, for “Employee Actions,” she should “refer” to the DRP. In Bickford’s

view, Hergenreder “was or should have been aware of the DRP and so is bound by it.”

Bickford Br. at 13 (capitalization removed). Yet she was not required to refer to the

DRP; the “handbook does not constitute any contractual obligation on [Hergenreder’s]

part nor on the part of Bickford Cottage[.]” Hergenreder Br. at Ex. 6 (Receipt of

Employee Handbook Form). Moreover, the simple reference in the Handbook to “the
No. 10-1474 Hergenreder v. Bickford Senior Living Group Page 10

Eby Companies Dispute Resolution Procedure” for “details” is not “the manifestation

of willingness to enter into a bargain, so made as to justify another person in

understanding that his assent to that bargain is invited and will conclude it.” Kloian, 733

N.W.2d at 770 (internal quotation marks omitted). This statement says nothing about

arbitration, and it says nothing that would indicate to Hergenreder that accepting or

continuing her job with Bickford would constitute acceptance. Indeed, it is incorrect to

conflate the fact that Hergenreder knew generally of the DRP with the notion that she

knew of the arbitration language—and Bickford’s desire to create an arbitration

agreement—contained within the DRP. Were Hergenreder required to read, or even

notified of the importance of reading, the DRP, the analysis here might be different. But

this court’s inquiry is focused on whether there is an objective manifestation of intent

by Bickford to enter into an agreement with (and invite acceptance by) Hergenreder, and

we are not convinced that there is any such manifestation made by Bickford in the record

in this case. See id.

We are also not persuaded by Bickford’s reliance on Mannix v. Cnty. of Monroe,

348 F.3d 526 (6th Cir. 2003), which interpreted Michigan law on employment-contract

formation. Mannix stands for the proposition that “[d]istribution of a new employee

handbook constitutes reasonable notice, regardless of whether the affected employee

actually reads it.” 348 F.3d at 536. The company at issue in Mannix had “posted the

revised [employment policies] at least four months before the [plaintiff’s] termination

. . . on an internal database available to employees.” Id. “To spread the word of the

revised policies, the County held meetings between department heads and employees and

put the policies on the County’s email system.” Id. “This,” the court held, “was

reasonable notice.” Id. In the present case, however, there is no evidence that the DRP

was “posted” in a place—either physical or electronic—available to Hergenreder, that

there were meetings at which Hergenreder was notified of the policies, or that

Hergenreder was aware of the DRP at all. Despite Knight’s vague claim that the DRP

“is distributed to employees,” R. 13-4 at 2 (Knight Aff.), Bickford does not argue that

it actually distributed or made the DRP available to Hergenreder.
No. 10-1474 Hergenreder v. Bickford Senior Living Group Page 11

Furthermore, even if Bickford were deemed to have made an offer to

Hergenreder, we see no evidence that Hergenreder “manifest[ed] an intent to be bound

by the offer, and all legal consequences flowing from the offer, through voluntarily

undertaking some unequivocal act sufficient for that purpose.” Kloian, 733 N.W.2d at

771 (quotation marks omitted). Bickford claims that her acceptance occurred when she

elected to accept or continue her employment, but there is no evidence that Hergenreder

knew (1) that the DRP contained arbitration information or an arbitration agreement, or,

more specifically, (2) that the arbitration provisions in the DRP provided that electing

to accept or continue employment with Bickford would constitute acceptance of the

DRP’s arbitration terms. Indeed, Hergenreder had no reason to believe that electing to

work for Bickford would constitute her acceptance of anything. She therefore did not

“voluntarily undertak[e] some unequivocal act sufficient for th[e] purpose” of accepting

the arbitration terms contained in the DRP. Id.

In this regard, several cases discussed by the parties and relied on by the district

court support Hergenreder’s side of the argument. First is Kettles v. Rent-Way, Inc., No.

1:09-cv-230, 2009 WL 1406670 (W.D. Mich. May 18, 2009), in which the district court

considered whether an arbitration agreement had been formed either by language

contained in a company’s handbook or by the plaintiff’s receipt of a letter sent to the

plaintiff by the company after the handbook was distributed announcing the arbitration

plan. The court rejected the argument that the handbook created a binding agreement

to arbitrate, even though the handbook specifically discussed the company’s binding

arbitration program, because the handbook had language similar to the Handbook in this

case stating that the handbook did not constitute a contract. Id. at *9. It relied, in part,

on Heurtebise v. Reliable Business Computers, Inc., in which the Michigan Supreme

Court held that a company handbook does not form a contract where it specifically states

that it is not a contract. 550 N.W.2d 243, 247 (Mich. 1996) (plurality opinion); id. at 258

(Boyle, J., concurring). With respect to the second argument advanced by the defendant

in Kettles, however, the district court agreed with the defendant: “RentWay . . . also

issued a separate document, which did not contain [language stating that it was not a

contract], which obligates Kettles to submit these claims to its ‘Solutions’
No. 10-1474 Hergenreder v. Bickford Senior Living Group Page 12

ADR/arbitration program.” Kettles, 2009 WL 1406670, at *10. Specifically, because

the separate document that was sent to the plaintiff “was not merely a general statement

of what employees should expect,” like the handbook, but rather “explicitly states it is

intended to be a binding contract between RentWay and its employees,” the district court

held that the plaintiff was bound by the arbitration terms in that document. Id.

The district court’s resolution in Kettles supports Hergenreder’s argument

because there is no evidence that Hergenreder was provided the DRP at any time. There

is no evidence that Hergenreder knew of the DRP, much less received a copy of it, and

the Handbook’s reference to the DRP, generally, “for details” on “Employee Actions”

did not notify Hergenreder of the arbitration agreement, much less notify her in a manner

similar to Kettles.

We conclude that Guelff v. Mercy Health Servs., No. 200040, 1999 WL

33444156 (Mich. Ct. App. May 25, 1999) (unpublished opinion), is distinguishable. The

handbook (or manual) at issue in Guelff did not contain the language present both here

and in Kettles stating that it did not form a contract. The Michigan Court of Appeals

therefore held that the arbitration language in the manual was binding. Id. at *2. It also

rejected the plaintiff’s argument that the manual could not be binding on her because she

did not have knowledge of it. The manual was located in the plaintiff’s workplace, and

“an affidavit of Mercy’s human resource director established that during the years of

plaintiff’s employment, she availed herself of many of the benefit provisions contained

in the guidelines manual.” Id. “Under these circumstances,” the court held, “plaintiff’s

conduct conveyed assent to the written policies, and even though plaintiff claimed that

she did not have actual knowledge of the manual, the distribution of the manual provided

plaintiff with reasonable notification of the employment guidelines.” Id. (internal

citation omitted). See also Ehresman v. Bultynck & Co., P.C., 511 N.W.2d 724, 726

(Mich. Ct. App. 1994) (holding that Ehresman assented to an arbitration agreement, even

though he did not sign the agreement, because he “accepted the delivery of the

agreement[] and operated under [its] terms”).
No. 10-1474 Hergenreder v. Bickford Senior Living Group Page 13

This case is similar to Guelff in that Hergenreder claims that she had no

knowledge of the DRP, but, unlike Guelff, there is no evidence that the DRP was

available to Hergenreder, nor is there evidence that she otherwise availed herself of

benefits contained therein. As a result, if Guelff stands, as Bickford and the district court

claimed, for the proposition that an agreement can be formed where the offeree had

“reasonable notification” of the offer, Hergenreder was not “reasonabl[y] notifi[ed]” that

the DRP contained an offer to enter into an arbitration agreement. Moreover,

Hergenreder certainly was not notified that her acceptance of employment (or

continuation of employment) with Bickford would constitute acceptance of that offer.

She also did not otherwise avail herself of the agreement in any way. These cases

therefore do not support Bickford’s claim that an arbitration agreement was formed.

At bottom, Bickford’s argument boils down to the following contention: if

Hergenreder has no reason to believe that a certain document contains an offer to enter

into an agreement, and if she is not contractually obligated to read that document, then

she will nonetheless be bound to the agreement contained in that document if she

unwittingly takes actions that the document says will constitute acceptance of the offer.

There is no support for this proposition in Michigan law.

Lastly, we also note that the parties dispute whether, in addition to assenting to

the arbitration agreement contained in the DRP, Hergenreder waived her right to a jury

trial under the Seventh Amendment. “[T]he question of right to jury trial is governed by

federal and not state law”; this court must ask whether that waiver was knowing and

voluntary. K.M.C. Co. v. Irving Trust Co., 757 F.2d 752, 755–56 (6th Cir. 1985). This

court uses the following factors to determine whether a waiver of the right to a jury trial

has been knowing and voluntary:

(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.
No. 10-1474 Hergenreder v. Bickford Senior Living Group Page 14

Morrison v. Circuit City Stores, Inc., 317 F.3d 646, 668 (6th Cir. 2003) (en banc). Yet

“[i]f the claims are properly before an arbitral forum pursuant to an arbitration

agreement, the jury trial right vanishes.” Cooper v. MRM Inv. Co., 367 F.3d 493, 506

(6th Cir. 2004).

Bickford argues that these factors have been met by Hergenreder’s assent to the

arbitration agreement. As explained above, we hold that Hergenreder did not enter into

an arbitration agreement, but even if she did, we believe that the Morrison factors weigh

against a finding of a knowing and voluntary waiver. Her “experience, background, and

education” are not provided in the record, but “consideration for the waiver” favors

Bickford, because there was consideration—her continued employment by Bickford.

The other factors favor Hergenreder, however, because the fact that she was not

reasonably notified of the agreement makes it impossible to say that she had time to

consider the waiver of her right to a jury trial or that the clarity of the waiver matters.

Of greatest importance is the “totality of the circumstances” factor, which best sums up

the issue of whether Hergenreder knowingly and voluntarily waived her right to a jury

trial: She simply did not know that the DRP contained an arbitration agreement, nor was

she obligated to inform herself of what the DRP contained. Therefore, even if an

arbitration agreement were formed, on these facts Hergenreder did not knowingly and

voluntarily waive her right to a jury trial. As explained above, however, we hold that

Hergenreder did not enter into a binding arbitration agreement, and we therefore reverse

the district court’s judgment granting Bickford’s motion to compel arbitration and

dismissing the case.

III. CONCLUSION

For the reasons stated above, we REVERSE the district court’s judgment

granting Bickford’s motion to compel arbitration and dismissing the case, and we

REMAND this case for proceedings consistent with this opinion.