Keanini v. United Healthcare Services, Inc. et al
Filing
26
ORDER DENYING MOTION TO COMPEL ARBITRATION AND TO STAY PROCEEDINGS re 17 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 7/21/2014. "For the foregoing reasons, United Healthcare's motion to compel arbitration and to stay proceedings is denied. All of Keanini's claims remain pending before this court." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
PAMELA KEANINI
)
)
Plaintiff,
)
)
vs.
)
)
UNITED HEALTHCARE SERVICES,
)
INC., et al.
)
)
Defendants.
)
)
_____________________________ )
CIVIL NO. 13-00495 SOM/BMK
ORDER DENYING MOTION TO
COMPEL ARBITRATION AND TO
STAY PROCEEDINGS
ORDER DENYING MOTION TO COMPEL ARBITRATION AND TO STAY
PROCEEDINGS
I.
INTRODUCTION.
Defendant United Healthcare Services, Inc. (“United
Healthcare”), moves to compel arbitration of all but one of
Plaintiff Pamela Keanini’s (“Keanini”) claims in her Complaint
filed on March 8, 2013, and to stay proceedings on all claims in
this action pending the outcome of arbitration.
Because the
arbitration policy at issue is unenforceable, the court denies
United Healthcare’s motion to compel arbitration and to stay
proceedings pending arbitration.
The court further determines
that, even if the arbitration policy were enforceable,
arbitration could not be compelled at this time because there is
a factual dispute as to whether Keanini agreed to arbitrate this
dispute.
II.
FACTUAL BACKGROUND.
On August 18, 2008, Keanini began working as a Field
Services Coordinator for United Healthcare, a wholly owned
subsidiary of UnitedHealth Group.
ECF No. 17, PageID # 161, 180;
ECF No. 20, PageID # 222.
According to United Healthcare, its newly hired
employees are required to complete and electronically submit
various forms, including the “UnitedHealth Group Employment
Arbitration Policy” (the “Arbitration Policy”) on UnitedHealth
Group’s intranet, HR Direct Self Service.
ECF No. 17, PageID #
161; ECF No. 23, PageID # 239.
United Healthcare contends that HR Direct Self Service
tracks when an employee accesses and acknowledges the Arbitration
Policy.
ECF No. 23, PageID # 240-41.
An employee acknowledges
the Arbitration Policy by typing in his or her name on a
signature line and clicking on a box that says “I have read and
agree to the above.”
Id., PageID # 241-42.
United Healthcare
alleges that Keanini acknowledged that she read and agreed to the
Arbitration Policy on September 17, 2008.
ECF No. 17, PageID #
161.
The Arbitration Policy provides that United Healthcare
and any employee agreeing to the Policy must resolve certain
employment-related disputes through arbitration conducted
pursuant to the version of the Arbitration Policy in effect when
2
arbitration is demanded.
ECF No. 17, PageID # 196, 202.
The
Arbitration Policy in effect at the time Keanini filed her
Complaint had been amended effective January 1, 2012, several
years after Keanini began working for United Healthcare.
2012 version of the Arbitration Policy states:
A dispute is based on a legal claim and is
subject to this Policy if it is not
specifically excluded from the Policy
and if it arises from or involves a claim
under any federal, state or local statute,
ordinance, regulation or common law doctrine
regarding or relating to employment
discrimination, terms and conditions of
employment, or termination of employment
including, but not limited to, the following:
the Age Discrimination in Employment Act, the
Americans With Disabilities Act, the Family
and Medical Leave Act, the Fair Labor
Standards Act, and all applicable amendments
and regulations; Title II of the Genetic
Information Nondiscrimination Act of 2008;
state human rights and non-discrimination
laws; whistleblower or retaliation claims;
breach of contract, promissory estoppel, or
any other contract claim, and defamation,
employment negligence, or any other tort
claim not specifically excluded from
coverage. Claims excluded from mandatory
arbitration under the Policy are claims under
Title VII of the Civil Rights Act of 1964 or
any tort related to or arising out of sexual
assault or harassment, including assault and
battery, intentional infliction of emotional
distress, false imprisonment, or negligent
hiring, supervision, or retention; and claims
that, pursuant to the Dodd-Frank Wall Street
Reform and Consumer Protection Act, are not
subject to mandatory pre-dispute arbitration.
Such claims may be brought in arbitration
under this Policy if the claimant so chooses.
Id., PageID # 204.
3
The
Keanini’s Complaint alleges that she was a Field
Service Coordinator who interacted with United Healthcare's
clients.
She says that she was disciplined in August 2011 for
having failed to meet all the requirements for recording client
contact.
She says she met with her supervisor for reviews of her
work, and that she also met with United Healthcare's President,
who allegedly agreed that Keanini’s caseload was too high to
allow compliance with the company’s requirements for recording
client contact.
According to Keanini, she complained that United
Healthcare was violating State of Hawaii law regarding caseload
assignments.
She also alleges that she complained about race
discrimination.
She says she was fired on February 17, 2012,
filed a charge with the EEOC, and received a right-to-sue letter.
ECF No. 1-1.
United Healthcare asserts that the following claims in
Keanini’s Complaint, filed on March 8, 2013, fall under the
Arbitration Policy: (1) violation of the Age Discrimination in
Employment Act (Count I); (2) infliction of emotional distress
(Count II); (3) defamation (Count III); (4) retaliation (Count
IV); and (5) violation of the Whistleblower’s Protection Act,
Haw. Rev. Stat. § 378-62 (Count V).
Id., PageID # 160.
Keanini alleges that she never received and never
signed the Arbitration Policy, and that United Healthcare has
failed to meet its initial burden of establishing the existence
4
of an arbitration agreement between the parties.
ECF No. 20,
PageID # 226; ECF No. 21, PageID # 228.
III.
STANDARD.
A.
Motion to Compel Arbitration.
The Federal Arbitration Act (“FAA”) applies to
arbitration provisions in “contract[s] evidencing a transaction
involving commerce[.]”
9 U.S.C. § 2; see also Chiron Corp. v.
Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000).
“Employment contracts, except for those covering workers engaged
in transportation, are covered by the FAA.”
E.E.O.C. v. Waffle
House, Inc., 534 U.S. 279, 289 (2002).
Under the FAA, a court considering a motion to compel
arbitration must determine: “(1) whether a valid agreement to
arbitrate exists and, if it does, (2) whether the agreement
encompasses the dispute at issue.”
Lee v. Intelius Inc., 737
F.3d 1254, 1261 (9th Cir. 2013) (internal quotation marks and
citation omitted).
In determining whether a valid agreement to arbitrate
exists, the court applies state law contract principles.
Lowden
v. T-Mobile USA, Inc., 512 F.3d 1213, 1217 (9th Cir. 2008).
In
Hawaii, a valid arbitration agreement “must have the following
three elements: (1) it must be in writing; (2) it must be
unambiguous as to the intent to submit disputes or controversies
to arbitration; and (3) there must be bilateral consideration.”
5
Douglass v. Pflueger Hawaii, Inc., 110 Haw. 520, 531, 135 P.3d
129, 140 (2006); see also Doyle v. Hawaiian Cement, No. 08-00017
JMS/KSC, 2008 WL 2230734, at *4 (D. Haw. May 29, 2008).
“The party seeking to compel arbitration carries the
initial burden of establishing that an arbitration agreement
exists between the parties.”
Siopes v. Kaiser Found. Health
Plan, Inc., 130 Haw. 437, 446, 312 P.3d 869, 878 (2013).
If this
initial burden is satisfied, “the burden shifts to the opposing
party to present evidence on its defenses to the arbitration
agreement.”
B.
Id. (internal quotation marks and citation omitted).
Motion to Stay Proceedings Pending Arbitration.
Section 3 of the FAA (9 U.S.C. § 3) outlines the
circumstances under which a court must stay proceedings pending
arbitration:
If any suit or proceeding be brought in any
of the courts of the United States upon any
issue referable to arbitration under an
agreement in writing for such arbitration,
the court in which such suit is pending, upon
being satisfied that the issue involved in
such suit or proceeding is referable to
arbitration under such an agreement, shall on
application of one of the parties stay the
trial of the action until such arbitration
has been had in accordance with the terms of
the agreement, providing the applicant for
the stay is not in default in proceeding with
such arbitration.
6
IV.
ANALYSIS.
A.
The Arbitration Policy is Unenforceable.
The Arbitration Policy at issue in this case is
unenforceable, even assuming Keanini signed it, because it lacks
bilateral consideration, as required under Hawaii law for the
existence of a valid arbitration agreement.
See Doyle, 2008 WL
2230734, at *4.
In Douglass, the Hawaii Supreme Court concluded that an
arbitration agreement failed for lack of consideration, even
though both parties had waived their rights to litigate disputes
in court, because the employer retained the right to change the
employee handbook containing the arbitration policy at any time.
Id. at 535, 135 P.3d at 144.
The court noted that enforcing an
agreement that an employer retains a right to alter, amend, or
revoke “would be to create a contract where only one party is
bound,” and that the proper result is to conclude that “the
reservation of rights language . . . renders the purported
arbitration agreement illusory” and, therefore, without force.
Id. (citation omitted).
The Arbitration Policy before this court allows the
employer to amend or terminate the policy:
UnitedHealth Group reserves the right to
amend, modify, or terminate the Policy
effective on January 1 of any year after
providing at least 30 days notice of its
intent and the substance of any amendment,
modification or termination of the Policy
7
. . . .
All arbitrations shall be conducted in
accordance with the Policy in effect on the
date the Corporate Employee Relations
Department receives the Demand for
Arbitration.
ECF No. 17-4, PageID # 202.1
Like the employer in Douglass,
United Healthcare remains free to escape from the agreement,
rendering the Arbitration Policy unenforceable.
Admittedly, United Healthcare must provide notice of
its intent to amend, modify, or terminate the agreement, and any
changes can only be effective beginning January 1 of the coming
year.
However, United Healthcare retains sole discretion to make
any such change, leaving the employee with no recourse short of
resignation.
The preliminary steps the employer must take in the
present case before altering or terminating the agreement do not
overcome the holding in Douglass that an arbitration agreement in
which an employer retains the unilateral right to amend or revoke
the agreement is unenforceable.
Requiring notice and a delay in
implementation, while providing an employee with no opportunity
to object or to take any action short of resignation, still
leaves the employer free to change or terminate the Arbitration
Policy.
1
The reference in the Arbitration Policy to UnitedHealth
Group is a reference to UnitedHealth Group Incorporated and its
subsidiaries, including United Healthcare. ECF No. 17-4, PageID
# 196.
8
Moreover, it appears that even when the employer knows
of a potential claim, the employer may amend or terminate the
policy before the employee submits a formal demand for
arbitration.
Even with the delay in the effective date of the
amendment or termination, an employee could be left with as
little as 30 days to file a claim and demand arbitration.
Here,
for example, Keanini alleges that she complained to United
Healthcare about race discrimination and that United Healthcare
retaliated against her in response.
She also says she complained
about violations of state law regarding caseload assignments.
To
the extent United Healthcare knew that there were at least
potential claims she might bring, United Healthcare could have
amended the Arbitration Policy to make it more favorable to
United Healthcare with respect to those very claims.
The 30-day notice provision and the January 1 effective
date of any amendment to the Arbitration Policy in no way
guarantee that the employer could not act so quickly in amending
the Arbitration Policy as to prejudice an employee.
The
employer, knowing that an employee is contemplating making a
claim, may immediately give notice of an amendment that might
prejudice that particular employee.
To avoid having the
amendment apply to that claim, an employee in certain
circumstances might have to react with unreasonable alacrity.
9
Although Keanini was fired a month after amendments to
the Arbitration Policy took effect, the court is certainly not
saying that United Healthcare made those amendments to prejudice
Keanini.
her.
In fact, the amendments may have been beneficial to
But whether the notice requirement, delayed effective date,
and nonapplicability to ongoing arbitration actions constitute
consideration must be examined not by what actually occurred but
by what the Arbitration Policy allowed.
Of course, it will not always be the case that an
employee will be forced to act quickly.
If United Healthcare
announced its intent to amend the Arbitration Policy in February
of any year, an employee could avoid the impact of that amendment
by demanding arbitration by the end of that calendar year.
In
that circumstance, the employee would probably not be prejudiced
by an amendment.
But the court has in mind a different
hypothetical employee who, unschooled in the law, is dealing
first with her direct supervisor, then with other supervisors
higher up the company chain, and with the company’s EEO officer
or Human Resources Department.
Months may pass, and the employee
may not be savvy enough to demand arbitration as December nears.
If an amendment is announced on December 1, it will take effect
in a month.
Unless the employee is watchful, the amendment will
apply to her claim.
10
At the hearing on the present motion, United
Healthcare’s counsel cited Hardin v. First Cash Financial
Services., Inc., 465 F.3d 470 (10th Cir. 2006), in support of
United Healthcare’s position that the Arbitration Policy is not
illusory.
Hardin involved the application of Oklahoma law, not
the Hawaii law applicable here.
Moreover, the employer in Hardin
was actually agreeing to more than United Healthcare says it
agreed to.
Hardin involved discrimination claims by an employee.
The employer sought to compel arbitration under an arbitration
agreement that allowed amendment or termination of the agreement
by the employer, provided that any amendment or termination would
not take effect “until 10 days after reasonable notice of
termination is given to Employee or as to claims, disputes, or
controversies which arose prior to the date of termination.”
at 478.
Id.
In rejecting the employee’s argument that the agreement
was illusory, the Tenth Circuit, applying Oklahoma law, relied
not only on the 10-day notice requirement, but also on the
court’s understanding that the employer could not amend the
agreement if it had “actual notice of a potential dispute or
claim” or if the “claims . . . arose prior to the date of
termination.”
Id.
Although the notice period in the Arbitration
Policy before the court is longer than it was in Hardin, and the
effective date of any amendment is delayed until January 1,
11
United Healthcare is not barred, as the employer was in Hardin,
from applying amendments even to disputes it is aware might be
raised.
United Healthcare must, if it seeks to avoid a bar, act
quickly to amend the Arbitration Policy, but the employer is
usually positioned to act far more quickly than an individual
employee can.
In determining that the agreement in Hardin was not
illusory, the Tenth Circuit cited In re Halliburton Co., 80
S.W.3d 566, 569-70 (Tex. 2002), which rejected the argument that
an arbitration agreement was illusory.
That agreement included a
10-day notice requirement for any amendment and also provided
that “no amendment shall apply to a dispute of which the
[employer] had actual notice on the date of the amendment.”
While the Tenth Circuit also quoted and relied on
Wilson v. Gifford-Hill & Co., Inc., 570 P.2d 624 (Okla. Ct. App.
1977), the circumstances of that case are far removed from those
in issue here.
What the Tenth Circuit said in Hardin was: “While
the ‘reservation of a unilateral right to cancel [an] entire
agreement is so broad as to negate the existence of any
consideration in that the promise is essentially empty or
illusory,’ if ‘notice of cancellation is required the promisor is
bound sufficiently so that his promise to buy or give notice of
cancellation meets the requirement of consideration.’”
465 F.3d at 478 (quoting Wilson, 570 P.2d at 626).
12
Hardin,
Wilson did
not involve an arbitration agreement at all.
an employment context.
Nor did it involve
Instead, Wilson involved a contract to
buy three sprinklers.
The plaintiff in Wilson alleged that the third
sprinkler had not been delivered or installed.
tried, and the jury found for the plaintiff.
The matter was
The seller
appealed, arguing that the sales contract was illusory because
the buyer had retained the right to cancel the contract 30 days
before delivery.
Citing “text writers” for the language later
quoted by the Tenth Circuit in Hardin, the Wilson court noted
uncertainty about the enforceability of the right to cancel “due
to the ambiguity of what the phrase ‘delivery date’ meant (the
agreement apparently contemplated 3 deliveries),” but noted that
“this issue was nowhere raised and we do not decide it.”
The
Wilson court concluded that the contract was adequately supported
by consideration “in light of the record and the manner that the
mutuality issue was raised.”
570 P.2d at 626.
It is not at all
clear that Wilson would support a conclusion that the Arbitration
Policy before this court is enforceable.
The Ninth Circuit, applying California law, found both
procedural and substantive unconscionability in an arbitration
clause in Ingle v. Circuit City Stores, Inc.,
(9th Cir. 2003).
That clause, contained in a broader employment agreement, allowed
the employer to “alter or terminate the Agreement and these
13
Dispute Resolution Rules and Procedures on December 31st of any
year upon giving 30 calendar days written notice to Associates.”
Id. at 1179.
The Ninth Circuit said, “Although the agreement
requires Circuit City to provide exiguous notice to its employees
of termination or any modification, such notice is trivial when
there is no meaningful opportunity to negotiate the terms of the
agreement.”
Id.
The Ninth Circuit went on to say that this
“unilateral power to terminate or modify” rendered the
arbitration provision “substantively unconscionable,” although
the court drew no conclusion as to whether the unconscionable
provision rendered the contract unenforceable.
Id. at 1179-80 &
n.23.
The circumstances and the notice language in Ingle are
similar to what is before this court.
The Arbitration Policy
before this court does improve on the Ingle provision by saying
that the Arbitration Policy in effect when an arbitration demand
is filed shall govern.
That is, an amendment during the pendency
of an arbitration proceeding will not affect the pending
proceeding.
This restriction still allows an employer that knows
about a claim, albeit a claim that has not yet become the subject
of an arbitration demand, to amend the Arbitration Policy to the
employer’s advantage.
Delaying the effective date of the
amendment until January 1 may sometimes give an employee a
sufficient opportunity to submit an arbitration demand before the
14
change takes effect, but may sometimes give the employee an
inordinately short 30-day period.
This court realizes that some courts have enforced
arbitration agreements like the one in issue in the present case.
For example, in Pierce v. Kellogg, Brown & Root, Inc., 245 F.
Supp. 2d 1212 (D. Okla. 2003), a case cited in the Tenth
Circuit’s Hardin decision, the court, applying Oklahoma law,
enforced an arbitration agreement that allowed amendment or
termination on 10 days’ notice, but that provided that any
amendment or termination was inapplicable to existing arbitration
proceedings.
But several other courts, noting the same concern
this court has about application of amendments to claims that the
employer has reason to know might be brought in the future, have
concluded that arbitration agreements are illusory if, without
regard to whether arbitration demands have been made, the
agreements do not exempt claims that accrued or were known to the
employer.
The Fifth Circuit, in Morrison v. Amway Corp., 517 F.3d
248, 254 (5th Cir. 2008), applying Texas law, was concerned that
the arbitration provision before it could be unilaterally amended
by Amway by publication of notice of an amendment, and that
nothing suggested “that once published the amendment would be
inapplicable to disputes arising, or arising out of events
occurring, before such publication.”
15
(Emphasis in original.)
Lamenting the absence of a savings clause that precluded
application of amendments “to disputes which arose (or of which
Amway had notice) before the amendment,” the Fifth Circuit held
that the arbitration agreement was illusory and unenforceable.
Id. at 257.
Similarly, in Peleg v. Neiman Marcus Group, Inc., 140
Cal. Rptr. 3d 38 (Cal. Ct. App. 2012), the California court
analyzed an arbitration provision under Texas law and found it
illusory.
The provision required 30 days’ notice before an
employer’s unilateral amendment to the arbitration provision
could take effect.
claims.
The amendment was inapplicable to filed
Under Texas law, the California court concluded:
The vice of the modification provision in
this case is that it allows the employer to
manipulate the arbitration process, tailoring
it to fit specific cases, either by making
the process more difficult or more expensive
for the employee, or by revoking the
Agreement in the belief that a judicial forum
is preferable. Accordingly, if a claim has
accrued or if the employer knows about a
claim, all parties to the Agreement should be
bound by the version in effect at that time;
no changes should apply after the point of
accrual or knowledge.
Id. at 63.
The court put its view even more clearly when it
said, “[T]he Agreement fails because it exempts only filed
claims--it does not go far enough.
The Agreement should also
exempt claims that have accrued or are known to the employer that
are not filed within 30 days.”
Id. at 61.
16
The court concluded
that Texas law on this point was not inconsistent with any
fundamental California policy.
Id. at 68.
In Phox v. Atriums Management Co., 230 F. Supp. 2d 1279
(D. Kan. 2002), the Kansas district court, applying Kansas law,
found an arbitration provision in which the employer retained the
right to “alter, amend, eliminate or modify [the] agreement prior
to the initiation of any proceeding” to be illusory.
1281.
Id. at
The court noted: “At the time plaintiff signed the
Employee Acknowledgment Form, defendant had the unilateral right
to revise or cancel the arbitration clause before plaintiff filed
a claim.
Defendant’s after-the-fact decision not to exercise
this right does not alter the illusory nature of its original
promise to arbitrate.”
Id. at 1283.
The New Mexico Supreme Court has applied similar
reasoning.
In Flemma v. Halliburton Energy Services, Inc., 303
P.3d 814 (N.M. 2013), the court concluded that an arbitration
agreement permitting the employer to amend on 10 days’ notice,
except as to disputes for which a proceeding had been commenced,
was unconscionable and illusory under New Mexico law.
822.
The court explained:
Id. at
[T]his agreement allows Halliburton to amend
its terms even after a claim accrues and
before any proceeding is initiated. In
effect, Halliburton could change the rules of
the game just before it starts. For example,
an employee who has been terminated may later
find out, prior to initiating a case, that
the terms of arbitration have become more
17
restrictive. Halliburton can do this at any
time and only give notice to current
employees. Therefore, the employees most
likely to use the [Dispute Resolution Program
(“DRP”)], i.e., terminated employees, would
not even get notice of changes to the DRP,
which could negatively affect their claims.
Id.
It is little comfort to an employee that the United
Healthcare Arbitration Policy, unlike the provision before the
New Mexico Supreme Court or the provision that the Hawaii Supreme
Court examined in Douglass, requires notice of amendments and a
delayed effective date.
It appears to this court that United
Healthcare’s right to amend the Arbitration Policy extends to the
notice requirement and delayed effective date.
That is, United
Healthcare could conceivably eliminate or shorten the notice
period and delete or change the present January 1 effective date.
While this change would require 30 days’ notice and would not
take effect until the following January 1, once such a change
took effect, there might be no timing restrictions on future
changes.
The only remaining restriction would concern existing
arbitration demands.
In short, an employee with a potential
claim, even one known to the employer, could find herself
immediately subject to a changed Arbitration Policy.
This court
is not accusing United Healthcare of ever having implemented such
a change or of having contemplated anything along these lines.
Indeed, United Healthcare may, in drafting the Arbitration
18
Policy, have thought the notice and delayed implementation
provisions would remain constant.
allows such a change.
But the Arbitration Policy
This means that United Healthcare did not
provide consideration for the Arbitration Policy.
The present case is admittedly a closer call than the
Douglass case decided by the Hawaii Supreme Court.
Still, this
court predicts that, if the Hawaii Supreme Court were faced with
the issue before this court, the Hawaii Supreme Court would
conclude that, because United Healthcare retains the ability to
amend or terminate the Arbitration Policy even with respect to
claims it knows have accrued, the Arbitration Policy is illusory
notwithstanding its amendable provisions concerning notice,
effective date, and nonapplicability to existing arbitration
demands.
Without bilateral consideration, the Arbitration Policy
is not a valid arbitration agreement under Hawaii law, and
cannot, therefore, be enforced even if Keanini consented to it.
B.
Whether an Arbitration Agreement Exists Cannot
Presently Be Determined.
Even if the requirements going to notice and
implementation of changes in the Arbitration Policy render the
Arbitration Policy enforceable, this court denies the motion to
compel arbitration because, on the present record, it is not
clear that the parties actually agreed to arbitrate.
Keanini
alleges that she never received and never signed the Arbitration
19
Policy, while United Healthcare alleges that Keanini agreed to
the Policy on the company’s intranet.
The court is asked to rely
on a declaration by a United Healthcare employee describing the
significance of computer keystrokes allegedly indicating that
Keanini agreed to the Arbitration Policy, and on a purported
computer acknowledgment by Keanini.
Even if this evidence
presents a prima facie case that Keanini agreed to the
Arbitration Policy, a prima facie case only shifts the burden to
Keanini to present evidence to the contrary.
Keanini meets this
burden for purposes of this motion with her own declaration
denying that she agreed online to the Arbitration Policy.
ECF
No. 21, ¶¶ 5-7.
The court views the record as indicating a factual
dispute about whether Keanini agreed or not.
Resolution of this
dispute turns on a number of factors, including the credibility
of Keanini herself and of United Healthcare representatives who
may explain the workings of the intranet.
In the face of this
factual dispute, the court cannot determine whether there is an
arbitration agreement.
The existence of such an agreement is a
foundational requirement for enforcing the Arbitration Policy.
If the making of the arbitration agreement is in issue,
a court “shall proceed summarily to the trial thereof.”
§ 4.
9 U.S.C.
Thus, even if the Arbitration Policy were enforceable
notwithstanding Douglass, the present motion to compel would be
20
denied and the issue of whether the parties agreed to the
Arbitration Policy would be tried.
Only if the factfinder said
there was an agreement would arbitration be compelled (assuming
the enforceability of the Arbitration Policy).
C.
Proceedings On Keanini’s Claims Need Not Be
Stayed.
Because the court determines that the Arbitration
Policy is unenforceable, and that, even if it were enforceable,
arbitration could not be compelled given a factual dispute,
United Healthcare’s motion to stay proceedings is denied.
V.
CONCLUSION.
For the foregoing reasons, United Healthcare’s motion
to compel arbitration and to stay proceedings is denied.
All of Keanini’s claims remain pending before this
court.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 21, 2014.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Keanini v. United Healthcare Services, Inc., et al., Civ. No. 13-00495
SOM/BMK; ORDER DENYING MOTION TO COMPEL ARBITRATION AND TO STAY PROCEEDINGS
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