Sometimes a Belt & Suspenders Aren’t Enough

Even the most cautious lawyer might think that Columbia North Hills Hospital had done enough to compel arbitration when a former employee sued for sexual harassment, retaliation, and negligence.  The trial court thought so.  It granted the hospital’s motion to compel arbitration and then entered judgment confirming the arbitrator’s award in favor of the hospital.

Just what had the hospital done?  Let’s count the ways.  For one thing, it had adopted a written Mandatory Binding Arbitration Policy and posted it on its Compliance 360 intranet site, available to all employees.  That policy expressly covered claims for retaliation and negligence.  For another, it required all employees, including the plaintiff, to participate in a New Employee Orientation program, during which they were made aware of the site and informed that they were responsible for familiarizing themselves with all employee policies.  On top of that, the plaintiff had signed an acknowledgment that she had received orientation on “Problem solving/Grievance Procedures”—procedures that included mandatory arbitration–and understood her responsibility to familiarize herself with the contents of the employee orientation manual.

So the plaintiff had agreed to the arbitration policy, right?  Wrong, according to a March 23 decision of a Texas Court of Appeals.  As the court saw it, the plaintiff wasn’t even aware of the policy: she “did not have notice of the arbitration policy.”  The appeals court found it telling that the hospital “submitted no summary evidence that [she] actually accessed the intranet site.”  What about her acknowledgement of being oriented on the Problem solving/Grievance Procedures?  That’s easy: “… as a nonlawyer, [she] may have been oblivious to the fact that” those procedures referred to arbitration.

So the court reversed and remanded, while denying the hospital’s request for an evidentiary hearing on the issue of the plaintiff’s awareness of the arbitration policy.

What could the hospital have done to establish its right to arbitration?  The court’s opinion makes it hard to believe that anything short of the plaintiff’s signature on the arbitration policy itself would have sufficed.  Even in that case, one wonders whether the court might not have found a way to avoid arbitration, perhaps by opining that “as a nonlawyer” she didn’t understand what arbitration was.

The case is Doe v. Columbia North Hills Hospital, No. 02-16-00275-CV (Tex. App. 2017).

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