Opinion
1:02-CV-1975-JDT-TAB.
June 4, 2003.
ENTRY ON TENET AND WINONA'S MOTION TO DISMISS, OR IN THE ALTERNATIVE, TO STAY PENDING ARBITRATION
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
The Defendants Tenet Healthcare Corporation ("Tenet") and Winona Memorial Hospital ("Winona"), pursuant to the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the "FAA"), move the court to dismiss, or in the alternative, to stay this action pending referral of the Plaintiffs' claims to arbitration, and move the court to stay discovery, disclosures and other proceedings in this action pending a ruling on the motion to dismiss. The Plaintiff opposes the motion. The Defendant Leland Medical Centers, Inc. ("Leland") neither joined in the motion nor filed its own motion to dismiss. The court decides as follows.
I. Background
On December 20, 2002, the Plaintiff Magali M. Ortiz commenced this action against the Defendants alleging violations of Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991. Ms. Ortiz was born in 1961 to parents who were born in Puerto Rico. She was raised by her mother who speaks Spanish and not much English. Ms. Ortiz speaks and reads English, but states that she is unfamiliar with many English words.
Ms. Ortiz began working for the Defendant Winona as a certified nurse assistant in 1991. She alleges that beginning in December 2000, she was sexually harassed by Cliff Knight, a nurse manager employed by Winona, and later was retaliated against because she complained about the harassment.
Winona was owned by Tenet from 1997 until September 1, 2002, when Winona was sold to Leland. Tenet owns and operates more than 100 hospitals in more than a dozen states in the United States. Winona is located in Indianapolis, Indiana, and regularly treats out-of-state patients, and purchases supplies and services from out-of-state suppliers and companies.
On June 3, 1997, Ms. Ortiz signed a one-page, single-spaced document entitled "Employee Acknowledgment Form," acknowledging receipt of the Tenet Employee Handbook and Standards of Conduct. (B.K. Bartley Decl. ¶ 4 Ex. B.) The final two paragraphs of the form state:
In addition, I acknowledge that I have received and reviewed a copy of the Tenet Fair Treatment Process brochure. I hereby voluntarily agree to use the Company's Fair Treatment Process and to submit to final and binding arbitration any and all claims and disputes that are related in any way to my employment or the termination of my employment with Tenet. I understand that final and binding arbitration will be the sole and exclusive remedy for any such claim or dispute against Tenet or its parent, subsidiary or affiliate companies or entities, and each of its and/or their employees, officers, directors or agents, and that, by agreeing to use arbitration to resolve my dispute, both the Company and I agree to forego any right we each may have had to a jury trial on issues covered by the Fair Treatment Process. I also agree that such arbitration will be conducted before an experienced arbitrator chosen by me and the Company, and will be conducted under the Federal Arbitration Act and the procedural rules of the American Arbitration Association ("AAA").
I further acknowledge that in exchange for my agreement to arbitrate, the Company also agrees to submit all claims and disputes it may have with me to final and binding arbitration, and that the Company further agrees that if I submit a request for binding arbitration, my maximum out-of-pocket expenses for the arbitrator and the administrative costs of the AAA will be an amount equal to one day's pay (if I am an exempt employee) eight times my hourly rate of pay (if I am a non-exempt employee), or the local civil filing fee, whichever is less and that the Company will pay all of the remaining fees and administrative costs of the arbitrator and the AAA. I further acknowledge that this mutual agreement to arbitrate may not be modified or rescinded except by a written statement signed by both me and the Company.
(Id.)
Ms. Ortiz states that Winona gave her the form and told her to sign it without giving her the opportunity to read it. (Ortiz Aff. ¶ 3.) She signed the form without reading it and returned it to Winona. ( Id. ¶ 4.) Ms. Ortiz believed the form was only an acknowledgment form. ( Id. ¶ 5.) Winona said nothing to her about arbitration ( Id. ¶ 6) and did not tell her to read the entire Employee Handbook, and she did not. ( Id. ¶ 14.)
On May 15, 2001, Ms. Ortiz signed a document entitled " Winona Memorial Hospital Employee Acknowledgment Form," acknowledging receipt of the Tenet Employee Handbook and Standards of Conduct. (B.K. Bartley Decl. ¶ 4 Ex. A.) The two-paged, single-spaced form contains a section entitled, " 1. HANDBOOK ACKNOWLEDGMENT" which covers the entire first page of the form, save the form title. That section contains language identical to that contained in the acknowledgment form signed by Ms. Ortiz in 1997. ( Id.) As with the previous acknowledgment form, Ms. Ortiz was not given an opportunity by Winona to read this acknowledgment form before signing it. (Ortiz Aff. ¶ 19.) Winona told her that she had to sign the form to show that Winona had a meeting with her and did not give her a copy of the form. ( Id. ¶¶ 20, 21.) Ms. Ortiz denies that she gave up her right "to go to court or to have a court decide my rights not to be discriminated against and retaliated against by Winona[.]" ( Id. ¶ 24.)
II. Discussion
Tenet and Winona move this court to dismiss this action, contending that all of the Plaintiff's claims against them are referable to arbitration. Alternatively, they seek a stay pending arbitration. They also move the court to stay discovery, disclosures and other proceedings in this action pending a ruling on the motion to dismiss. Ms. Ortiz opposes the motion to dismiss and has refused to submit her claims to arbitration.
The FAA provides that written agreements to arbitrate disputes, "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. There is a strong federal policy favoring arbitration agreements. Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983). If the court determines that a valid arbitration agreement exists and covers the claims asserted in the case, then a motion to compel arbitration should be granted. The issue before the court is not whether Ms. Ortiz's claims against Tenet and Winona come within the scope of the arbitration agreements (her claims are related to her employment); but rather, whether the arbitration agreements are valid.
To the extent the Plaintiff argues that the arbitration agreements do not apply to any of her claims against Tenet and/or Winona accruing before her execution of the agreements, her argument fails. The arbitration agreements provide that Ms. Ortiz agrees to arbitrate "any and all claims and disputes that are related in any way to my employment". (B.K. Barley Decl. ¶ 4 Exs. A B) (emphasis added). There is no temporal limitation in these agreements. Thus, claims based on acts which occurred before Ms. Ortiz signed the arbitration agreement would seem to be subject to arbitration. See Whisler v. H.J. Meyers Co., 948 F. Supp. 798, 802 (N.D. III. 1996).
Ms. Ortiz argues that the arbitration agreements are unenforceable for three separate reasons: (1) she did not agree to arbitration as she was not given an opportunity to read the employee acknowledgment forms before she signed them and the forms are misleading and were misrepresented by Winona, (2) the arbitration agreements fail for want of consideration, and (3) the Tenet arbitration procedure makes the agreements unenforceable. These are considered in reverse order.
In arguing that the Tenet arbitration procedure renders the arbitration agreements unenforceable, Ms. Ortiz claims that the procedure is a secret proceeding in which a witness cannot testify with his or her attorney present. She states that she was asked to testify as a witness at an arbitration proceeding of a co-worker and the Tenet arbitrator refused to allow her to testify because her attorney was present. Tenet and Winona reply that the arbitrator had agreed to allow Ms. Ortiz's counsel to be present until he refused to abide by the confidentiality rules of the Fair Treatment Process and the AAA.
Even if the confidentiality rules were considered unconscionable, for example, AAA Rule 17 (giving the arbitrator the authority to hold closed hearings) and AAA Rule 18 (giving the arbitrator authority to make the arbitration confidential), and this court does not find that they are, it seems that the confidentiality rules would be collateral to the main purpose of the arbitration agreements and, thus, severable from the agreements. See, e.g., Lloyd v. Hovensa LLC, 243 F. Supp.2d 346, 352-53 (V.I. 2003) (holding an arbitration agreement enforceable with the exception of the incorporation of Rules 17, 18 and 34 of the AAA rules).
Ms. Ortiz relies on McCaskill v. SCI Management Corp., 298 F.3d 677, 680 (7th Cir. 2002), but the case is inapposite. The McCaskill court held that an arbitration agreement was unenforceable because it prohibited an award of attorney's fees to a prevailing Title VII plaintiff. Ms. Ortiz does not claim that the Tenet arbitration procedure bars awards of attorney's fees. Further, in Gilmer v. Interstatel Johnson Lane Corp., 500 U.S. 20 (1991), the Supreme Court held that federal statutory claims may be appropriate for arbitration so long as a party does not forego substantial rights available under the statute and the statute continues to serve its remedial and deterrent purposes. Id. at 26; see also Tinder v. Pinkerton Sec., 305 F.3d 728, 733 (7th Cir. 2002) (employment discrimination claims under Title VII are referable to arbitration). Ms. Ortiz does not claim that the Tenet arbitration procedures deny her any of the remedies available under the federal statutes upon which her claims are based, or that the statutes would not serve their remedial and deterrent purposes if her claims were arbitrated. Therefore, the court does not conclude that the arbitration agreements are unenforceable because of the arbitration procedure.
Ms. Ortiz next contends that the arbitration agreements are unenforceable for want of consideration. An arbitration agreement is treated like any other contract. See Gibson v. Neighborhood Health Clinics, Inc., 121 F.3d 1126, 1130 (7th Cir. 1997). If the agreement to arbitrate is not a valid contract then it is not enforced. See id. The court looks to the applicable state contract law to determine whether a valid arbitration agreement exists. See id. Though the parties have not directly addressed what law governs the arbitration agreements, it is presumed that Indiana law applies because Ms. Ortiz signed the agreements in Indiana and her employment and all allegations of harassment and retaliation would seem to have taken place in Indiana. See Penn v. Ryan's Family Steak Houses, Inc., 269 F.3d 753, 759 (7th Cir. 2001) (applying Indiana law where Indiana was the situs of all relevant events in the dispute).
The court infers by the parties' citation to Indiana cases that they, too, conclude that Indiana law governs.
Under Indiana law, the party moving to compel arbitration, here Tenet/Winona, bears the burden of demonstrating the existence of an enforceable arbitration agreement. See Gibson, 121 F.3d at 1130 (citing Wilson Fertilizer Grain v. ADM Milling Co., 654 N.E.2d 848, 849 (Ind.Ct.App. 1995)). The elements of a contract under Indiana law are offer, acceptance and consideration. See, e.g., Homer v. Burman, 743 N.E.2d 1144, 1146 (Ind.Ct.App. 2001). "A mutual assent or a meeting of the minds on all essential elements or terms must exist in order to form a binding contract." Id. at 1146-47 (quotation omitted). Consideration is a bargained for exchange whereby the promisor receives some benefit or the promisee suffers a detriment. See Gibson, 121 F.3d at 1130 (citing, e.g., B-Dry Owners Assoc. v. B-Dry Sys., Inc., 636 N.E.2d 161, 163 (Ind.Ct.App. 1994)). Thus, consideration for Ms. Ortiz's agreement to arbitrate can be a benefit to Ms. Ortiz or a detriment to Tenet/Winona.
Of course, Indiana law is not unique in this regard.
The cases cited by Ms. Ortiz do not support the conclusion that no consideration was given her in this case. Penn v. Ryan's Family Steak Houses and Geiger v. Ryan's Family Steak Houses, Inc., 134 F. Supp.2d 985, 999-1002 (S.D. Ind. 2001), involved an atypical and complicated three-party approach by which the employer attempted to bind the employee to arbitration. Penn, 269 F.3d at 759; Geiger, 134 F. Supp.2d at 989. The employees agreed to take any employment-related claims against the employer to the arbitration forum provided by the arbitration service. Penn, 269 F.3d at 759; Geiger, 124 F. Supp.2d at 989-90. The agreement was held unenforceable in Penn because it contained an illusory promise on the part of the arbitration service. 269 F.3d at 759-61. The Geiger court concluded that the plaintiffs received no consideration for their promises to arbitrate where the employer could revoke its contract with the arbitration service on ten days notice, the service had unlimited discretion to change its obligations under the arbitration rules at any time without notice or consent to the employees, the arbitration procedures allowed for potential bias against the employees, and the employer merely promised to consider the applicant's application for employment. Geiger, 134 F. Supp.2d at 1001-02. And, in Gibson, the arbitration agreement was held unenforceable because the employer made no promise in exchange for the employee's promise to arbitrate employment-related claims. Gibson, 121 F.3d at 1130-32.
The instant case does not involve a complicated three-party approach like that in Penn and Geiger. Instead, the arbitration agreement was between Ms. Ortiz and her employer. Ms. Ortiz claims that the only consideration given her was an agreement by an "unidentified `Company' to submit claims to arbitration." (Pl.'s Resp. at 8.) While the arbitration agreement may have been drafted more clearly, it is reasonably clear that the term "Company" refers to Tenet. The relevant paragraphs of the employee acknowledgment forms first mention the " Tenet Fair Treatment Process" and the very next sentence provides for an agreement "to use the Company's Fair Treatment Process." (B.K. Bartley Decl. ¶¶ 45 Exs. AB) (emphases added). Given the identification of the Fair Treatment Process as Tenet's in the first sentence, use in the following sentence of the word "Company" to modify "Fair Treatment Process" indicates that the "Company" means "Tenet." In addition, the agreement states that it is an agreement to arbitrate "any and all claims and disputes that are related in any way to my employment or the termination of my employment with Tenet." ( Id.) (emphasis added). The modifying phrase "with Tenet" at the end of this sentence necessarily modifies both "my employment" and "the termination of my employment," which indicates that the employee's employment is with Tenet.
In arguing want of consideration, Ms. Ortiz asserts that the failure of the Tenet organizations and Winona to register with the Indiana Secretary of State to do business in Indiana supports her claim that she could not know the identity of the "Company" named in the employee acknowledgment forms. The court cannot discern how these facts, even if true, establish a lack of consideration.
Thus, Ms. Ortiz promised to arbitrate an and all claims and disputes related to her employment with Tenet or the termination of her employment with Tenet, and, in exchange, Tenet promised to arbitrate any and all claims and disputes with her, to be bound by the arbitration, and to pay for much of the costs of the arbitration. Thus, consideration for Ms. Ortiz's alleged promise to arbitrate may be found in the benefit to Ms. Ortiz (Tenet's promise to arbitrate) and the detriment to Tenet (Tenet's promise to pay arbitration costs). See Gibson, 121 F.3d at 1131 ("Often, consideration for one party's promise to arbitrate is the other party's promise to do the same."). Therefore, the court concludes that the arbitration agreements do not fail for want of consideration.
To the extent that Ms. Ortiz argues that her claims against Winona are not subject to arbitration because Winona did not agree to binding arbitration, such an argument would be unavailing. Even if Winona was not a party to the arbitration agreements, the court understands Winona, by moving to compel arbitration, as agreeing to be bound by the arbitration decision. In addition, the arbitration agreements state that Ms. Ortiz agreed to submit to arbitration "any and all claims and disputes that are related in any way to my employment . . . with Tenet." Her claims against Winona surely are related to her employment with Tenet as Tenet owned Winona from 1997 until September 1, 2002.
Also, " WINONA MEMORIAL HOSPITAL" appears in bold type and all capitals at the very top of the employee acknowledgment form signed by Ms. Ortiz in 2001. Though the court need not and does not decide this issue, this acknowledgment form may suggest an adoption of the agreement to arbitrate by Winona.
This brings the court to Ms. Ortiz's contention that the arbitration agreements are invalid because she was not afforded an opportunity to read the employee acknowledgment forms, did not agree to arbitration, and was misled by Winona. Tenet and Winona take the position that a claim that a party's acceptance of a contract containing an arbitration agreement was obtained by coercion, confusion or misrepresentation is to be decided by the arbitrator rather than the court. Though this may be correct, see Air Line Pilots Ass'n, Int'l v. Midwest Exp. Airlines, Inc., 279 F.3d 553, 556 (7th Cir. 2002), the question here is whether a valid arbitration agreement was made, which is a question for the court, not the arbitrater. See Prima Paint Corp. v. Flood Conklin Mfg. Co., 388 U.S. 395, 403-04 (1967) (holding that a federal court may adjudicate issues going to the "making of the agreement to arbitrate").
Under Indiana law, a party is presumed to understand the documents which she signs and cannot be relieved from the terms of a contract because she did not read it. See Clanton v. United Skates of Am., 686 N.E.2d 896, 899-90 (Ind.Ct.App. 1997); Fultz v. Cox, 574 N.E.2d 956, 958 (Ind.Ct.App. 1991). This presumption can be overcome by a showing of fraud or misrepresentation. See, e.g., Fultz, 574 N.E.2d at 958-59 (holding that alleged misrepresentation by defendant's agent as to the effect of a release raised a genuine issue of material fact precluding summary judgment on passenger's action for underinsured motorists benefits). Clanton contains language which suggests that a party also may overcome this presumption by showing that she was incapable of reading or required or requested assistance from the other party to understand the document before she signed. See Clanton, 686 N.E.2d at 890; see also Shumate v. Lycan, 675 N.E.2d 749 (Ind.Ct.App. 1997).
In Shumate, the plaintiff had signed a release of liability form and then sued the defendant. The plaintiff claimed that because he was rushed by the defendant and his staff, he did not read the release before signing it. Shumate, 675 N.E.2d at 752. The court held that the failure to read the release was due to the plaintiff's own neglect and therefore did not render the release unenforceable. Id. at 753. The court relied on the lack of evidence that the plaintiff was incapable of reading or that he required the assistance of the defendant or his staff to explain the release, and the absence of any allegation of fraud or misrepresentation by the defendant. Id. Moore v. Bowyer, 388 N.E.2d 611 (Ind.Ct.App. 1979), emphasizes the importance of a party's having an opportunity and ability to read a contract before signing. Moore appealed from a judgment declaring certain certificates of deposit to be assets of his mother's estate. He had opened an account, deposited an inheritance his mother had received, and put his name on the account. Id. at 611. Moore received a signature card indicating that the account was a joint account with rights of survivorship. He presented the card to his mother, who had an opportunity to read it, but did not do so as she did not have a magnifying glass which she required. The court held that the mother's failure to read the signature card, when she had the opportunity and capability to do so, was insufficient to avoid the terms of the card. Id. at 612. The court said that mere neglect would not relieve a party of the terms of a contract, absent some excuse for the neglect such as fraud or misrepresentation, and the trial court had found no offensive or misleading acts by Moore. Id.; see also Hawkins v. First Nat'l Bank of Marion, 143 N.E. 709, 710 (Ind.Ct.App. 1924) (allegation that maker did not read promissory note which he signed but relied on bank's representation regarding note's provisions were insufficient to defeat bank's action on note absent a claim maker could not read or was prevented from doing so or was induced by bank not to read the note).
Geiger v. Ryan's Family Steak Houses, 134 F. Supp.2d 985 (S.D. Ind. 2001), also is instructive. Before interviewing with the defendant, the plaintiffs there were required to fill out employee application packets which contained an agreement to arbitrate form, an application for employment, and the rules and procedures of an employment dispute service, EDSI. The arbitration agreement purported to be a contract between the applicant and EDSI. Id. at 989. The plaintiffs argued that the arbitration agreement was not enforceable because the contract was unconscionable based in part on their lack of understanding of the terms of the agreement. Id. at 993-94, 997. The court concluded that enforcement of the arbitration agreement was unconscionable. Geiger, 134 F. Supp.2d at 998-99. This conclusion was based in part on evidence that one plaintiff was affirmatively misled by an agent of the defendant as to the effect of the arbitration agreement and the court's "major doubts" that a typical high school graduate (the plaintiffs' had only high school educations) would be able to read and understand all the documents provided during the employment interview. Id. at 999. The court did not directly address whether the plaintiff's reliance on the misrepresentation was reasonable; however, if she had been unable to read the documents before signing them, it would seem that her reliance could have been reasonable.
Therefore, these cases teach that a party's failure to read a contract before she signs it through no fault of her own makes the contract unenforceable against that party. That failure may be due to the lack of an opportunity to read or the incapability to read the contract. These cases also support the not surprising rule that fraud or misrepresentation in the making of a contract by one party renders the contract unenforceable against the other party. Ms. Ortiz contends that the arbitration agreements are unenforceable for these very reasons.
The Seventh Circuit recently decided that a party opposing a motion to compel arbitration faces the same evidentiary standard that applies to a party opposing a motion for summary judgment. Tinder v. Pinkerton Sec., 305 F.3d 728, 735 (7th Cir. 2002). Thus, a party resisting arbitration must identify a genuine issue of material fact concerning the existence of the agreement to arbitrate in order to obtain a trial. Id. As in summary judgment proceedings, a party cannot avoid compelled arbitration by conclusory assertions, but rather, "must identify specific evidence in the record demonstrating a material factual dispute for trial." Id. (citing Oppenheimer Co. v. Neidhardt, 56 F.3d 352, 358 (2d Cir. 1995)); see also Fed.R.Civ.P. 56(e) ("the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.") (emphasis added); Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990) ("The object of [Rule 56(e)] is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit."). The Seventh Circuit has reiterated time and again in the summary judgment context that conclusory allegations and self-serving affidavits without any factual support in the record are insufficient to create a triable issue of fact. See, e.g., Palmer v. Marion County, 327 F.3d 588, 596 (7th Cir. 2003); U.S. ex rel. Feingold v. AdminaStar Fed., Inc., 324 F.3d 492, 497 (7th Cir. 2003); Hall v. Bodine Elec. Co., 276 F.3d 345, 354 (7th Cir. 2002). In considering a party's opposition to a motion to compel arbitration, the court is to believe that party's evidence and draw all reasonable inferences in her favor. Tinder, 305 F.3d at 735 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
The court finds that even when Ms. Ortiz's evidence is believed and all reasonable inferences drawn in her favor, she has not shown a triable issue as to the validity and enforceability of the arbitration agreements. The only evidence she offers is her own, self-serving affidavit. Ms. Ortiz first states that she was not given an opportunity to read the employee acknowledgment forms before signing them. Whether she had the opportunity to read the documents is a conclusion for the court to reach, based on the admissible facts regarding the circumstances under which she placed her signature on the forms. Ms. Ortiz asserts that she was deprived of the opportunity to read the agreements without describing the amount of time she had the documents, the reading conditions, the surrounding events or any of the other types of things which could lead to the conclusion that she had no opportunity to read the documents. In other words, she omits information about the who, what, where, when, and how concerning her lack of opportunity to read the forms. The absence of genuine issues of fact regarding her opportunity to read the documents is especially apparent regarding the 1997 acknowledgment form. The evidence she provides regarding misrepresentations by Winona about the 2001 agreement is more troubling, as will be discussed below, but even the inferences most favorable to her about Winona's purported statements about that form are not enough to preclude arbitration.
An analogy, though imperfect, can be made to Zelinski v. Brunswick Corp., 996 F. Supp. 757 (N.D.Ill. 1997), in which the court considered a Rule 56(f) request. In that case, the plaintiffs sought a continuance under Rule 56(f) and asserted that they "have not had the opportunity" to take discovery on the pertinent issue. Id. at 765. The court observed that "Rule 56(f) explicitly requires that parties who seek a continuance for further discovery state the reasons for their inability to present facts essential to justify" their opposition to the summary judgment motion. Id. at 765; see also Fed.R.Civ.P. 56(f). The court concluded that the plaintiffs' conclusory assertion, if supported by the record, may have justified a continuance, but their "bare assertion does not satisfy their responsibility under Rule 56(f)." Id.
Just as the assertion that the plaintiffs "have not had the opportunity" to take discovery was insufficient to meet the requirement that a party state the reasons requiring a continuance, Ms. Ortiz's assertion that she was not given the opportunity to read the acknowledgment forms before signing them is insufficient to satisfy the requirement that she set forth specific facts requiring trial. Her assertion, like that in Zelinski, is conclusory, self-serving and unsupported by any other evidence. She offers no specific facts from which a reasonable factfinder could draw the conclusion that she was not given the opportunity to read the forms before signing them.
Ms. Ortiz argues in her surreply brief that it would have been "almost impossible" for her to read the acknowledgment form when she was asked to sign it. This assertion is unsworn, and is thus insufficient to raise a triable issue. See Fed.R.Civ.P. 56(e). But even if sworn, it still would be insufficient to create a genuine issue since Ms. Ortiz offers no specific facts to allow a reasonable factfinder to conclude that it would have been almost impossible for her to read the forms before signing them.
Ms. Ortiz has attempted to create a triable issue as to whether Winona misrepresented the arbitration agreement to her in 2001. Her evidence, however, fails in this regard. She states in her affidavit that Winona told her she had to sign the form to show that Winona had a meeting with her. Assuming that this was a misrepresentation (presumably someone from Winona met with Ms. Ortiz to give her the form), and even when all reasonable inferences are drawn in the Plaintiff's favor, she offers nothing to support a reasonable inference that her reliance on this representation was reasonable. It is obvious that the two-paged, single-spaced document containing text was quite different than a simple meeting acknowledgment form. She provides no facts to support a conclusion that the contents of the document were concealed from her. If Ms. Ortiz had offered sufficient evidence to create a triable issue as to whether she was given an opportunity to read the form, perhaps her reliance on this alleged misrepresentation would have been reasonable. But she has not done so.
Moreover, neither arbitration agreement contains a temporal limitation or expiration date. Thus, the arbitration agreement Ms. Ortiz signed in 1997 would encompass all of her claims against Tenet and Winona in this case and the 2001 arbitration agreement was unnecessary. So, even assuming the invalidity of the 2001 arbitration agreement, Ms. Ortiz would not avoid arbitration.
Ms. Ortiz states that she was raised by her mother who spoke very little English and that she (the Plaintiff) is unfamiliar with many English words. These facts do not create a triable issue of fact. See Keller v. Orr, 7 N.E. 195, 196 (Ind. 1886) (rejecting party's attempt to avoid the terms of a written instrument by claiming he "was not very conversant with the English language" and the instrument did not embody the agreement as he understood it). In addition, it is undisputed that Ms. Ortiz did not read the acknowledgment forms before signing them. Thus, her ability to read and comprehend the English language would be of little or no consequence as would her allegation that the forms were misleading with respect to title and the placement of the arbitration agreement. Though Ms. Ortiz states that before receiving the motion to dismiss she did not know what "arbitration" or "binding arbitration" meant, she has not alleged that she would have been unable to read these terms when she was given the acknowledgment forms. Assuming she had read them and did not understand them, she has offered no evidence to allow a reasonable factfinder to conclude that she was prevented from asking Winona about the meaning of these terms or from otherwise learning their meaning on her own. Also, it must be noted that the arbitration agreements are contained on a single page and do not contain highly complex language, and Ms. Ortiz has stated that she can speak and read the English language.
Ms. Ortiz expresses a belief that the employee acknowledgment form was only an acknowledgment form, and by this the court understands her as referring to the form she signed in 1997. However, she offers no specific facts to explain why she held this belief. So, this fails to create a triable issue. As well, it seems that such a belief would have been unreasonable: Had Ms. Ortiz read the form she would have known her belief to be unfounded.
This is not to suggest that Tenet or Winona had a duty to explain the arbitration agreements to Ms. Ortiz.
As well, her employment as a certified nurse's aid is indicative of an ability to comprehend the English language, both spoken and written. It seems likely that in her capacity as a nurse's aid she would receive instructions in English from others and be required to read and/or write the English language, for example, in patient charts and other notes regarding patient treatment. The Plaintiff is entitled to have inferences drawn in her favor, but only reasonable inferences.
The court concludes that Ms. Ortiz has not identified specific facts so as to create a triable issue concerning the validity and enforceability of the arbitration agreements. She had an ample opportunity to do so and did offer some evidence to support her position. This evidence, however, is insufficient to create a question of fact for trial because it is wholly conclusory, self-serving and unsupported by any other evidence in the record.
The court rejects Ms. Ortiz's other arguments. She argues that the waiver of the right to go to court applies only to a jury trial on issues covered by the Fair Treatment Process. The employee acknowledgment forms do contain such language, but also expressly state that the employee agrees to submit to final and binding arbitration "any and all claims and disputes that are related in any way to my employment." The agreement must be read as a whole. See Heritage Dev. of Ind., Inc. v. Opportunity Options, Inc., 773 N.E.2d 881, 891 (Ind.Ct.App. 2002) ("In reviewing . . . a contract . . . the court should not read particular words and phrases in isolation; rather, the court should consider the contract as a whole and should avoid rendering any words, phrases or terms ineffective or meaningless."), trans. dismissed. Thus, the argument that the waiver is limited to issues covered by the Fair Treatment Process is unavailing.
Ms. Ortiz also argues that if she had been given the opportunity to read the 1997 acknowledgment form and there had been an arbitration agreement, there would have been no reason for her to sign the second acknowledgment form in 2001. This argument, too, is unavailing. Though Winona and Tenet have not offered any explanation as to why Ms. Ortiz was asked to sign the employee acknowledgment form in 2001, they are not required to do so. Perhaps a change in management occurred and a decision made that with the passage of time a more current acknowledgment form should be on file. Or, it is possible that the Tenet Employee Handbook was revised between the signing of the first acknowledgment form and the second, in which case it would seem to make good sense to have Ms. Ortiz acknowledge receipt of the revised handbook. As well, the 2001 form acknowledged receipt of the employee handbook, a job description, and the corporate integrity program, so it was not wholly redundant of the 1997 acknowledgment form.
III. Conclusion
The court finds that Ms. Ortiz has not come forward with sufficient evidence to create a genuine issue of material fact regarding the validity and enforceability of the arbitration agreements at issue in this case, and her claims against Tenet and Winona are referable to arbitration. Therefore, the court finds that Tenet and Winona's motion to stay should be GRANTED and Ms. Ortiz should be ORDERED to submit her claims against them to binding arbitration according to the terms of the arbitration agreements.
Defendant Leland has neither filed its own motion to dismiss nor joined in that of Tenet and Winona. Nothing before the court at present suggests that Ms. Ortiz agreed to arbitrate any claims against Leland. The Supreme Court said in Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1 (1983): "[F]ederal law requires piecemeal resolution when necessary to give effect to an arbitration agreement. Under the [FAA], an arbitration agreement must be enforced notwithstanding the presence of other persons who are parties to the underlying dispute but not to the arbitration agreement." Id. at 20 (footnotes omitted). The Court continued: "[I]t may be advisable to stay litigation among the non-arbitrating parties pending the outcome of the arbitration. That decision is one left to the district court[.]" Id. at 20 n. 23.
Ms. Ortiz's claims against Leland likely are intertwined with the claims against Tenet and Winona, arising out of substantially the same set of facts and depending on much of the same evidence and law. Thus, it would be an inefficient use of resources for the claims against Leland to go forward at the same time as the claims against Tenet and Winona are arbitrated. As well, simultaneous proceedings in this court and in arbitration could lead to inconsistent results. Therefore, the court finds that it is appropriate also to stay the litigation in this case between Ms. Ortiz and Leland.
An order compelling arbitration of the claims against Tenet and Winona and staying further proceedings in this case pending arbitration or further order of the court will be entered.