No

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (EEOC or Commission) is the federal agency responsible for enforcing Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., and the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., with respect to private employers. The EEOC also enforces the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and the Equal Pay Act, 29 U.S.C. § 206 et seq., with respect to public and private employers. The EEOC has a strong interest in ensuring employees are not deprived of a judicial forum for enforcement of these federal statutory rights unless they have entered into an enforceable agreement to arbitrate their employment discrimination claims. Plaintiff Michael Ashbey sued his employer, Archstone Communities, on several grounds including retaliation under Title VII. Based on a “Dispute Resolution Policy” contained in Archstone’s Company Policy Manual, Archstone asserts that Ashbey is not entitled to pursue this claim in court but is limited, instead, to pursuing the claim in arbitration. This appeal poses the important question of whether the arbitration policy in Archstone’s Policy Manual is unenforceable against Ashbey because, when Archstone added arbitration to its Policy Manual, Archstone had Ashbey sign an Acknowledgement that specifically states the Policy Manual “does not . . . create any contractual rights.”

This appeal poses the additional, important question of whether this arbitration agreement is unenforceable because Ashbey did not knowingly waive a judicial forum for enforcement of his federal statutory civil rights. See Kummetz v. Tech Mold, Inc., 152 F.3d 1153 (9th Cir. 1998). Ashbey argues he did not knowingly waive a judicial forum for his Title VII claim because not only was he unaware that the Dispute Resolution Policy Archstone added to the Company Policy Manual in 2009 included arbitration, but the Acknowledgements Ashbey signed in 2009 and 2010 also both include explicit statements by Archstone that the Company Policy Manual does not create any contractual rights. Archstone’s actions here—asking its employees to sign a form acknowledging they received a copy of, or instructions on how to access, the company manual or handbook, but expressly stating the manual or handbook does not create any contractual rights—are not unique. See, e.g., Hergenreder v. Bickford Senior Living Group, 656 F.3d 411, 417-19 (6th Cir. 2011) (and cases cited therein). Because of the importance of this issue to the effective enforcement of Title VII rights in the workplace, and because Archstone’s conduct is not unique and other employees may find themselves in a position similar to Ashbey’s situation, the EEOC offers its views to this Court.

STATEMENT OF THE ISSUES [1]

1. Whether the district court correctly denied Archstone’s motion to compel arbitration because Archstone failed to prove that it offered, and Ashbey accepted, a contractual agreement to arbitrate Ashbey’s employment disputes.

2. Whether the district court correctly denied Archstone’s motion to compel arbitration because Ashbey did not knowingly waive a judicial forum for his Title VII claim of retaliation.

STATEMENT OF THE CASE

A. Statement of Facts

Michael Ashbey worked for Archstone for fifteen years, beginning in December 1996. When Ashbey first began working for Archstone, the company did not have an arbitration policy. Throughout Ashbey’s employment, Archstone implemented various policies and procedures for resolving employee complaints that did not include arbitration. See II-ER-81 (noting “Company’s existing internal procedures for resolution of complaints).[2] In January 2009, Archstone added to the Archstone Company Policy Manual a “Dispute Resolution Policy” which, for the first time, required employees to arbitrate employment disputes with Archstone. II-ER-74-75, 78-79.

Archstone’s new Dispute Resolution Policy appeared on pages 20 and 21 of the 2009 Company Manual. See SER-3. The Policy stated it is “governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq.” and “applies to any dispute arising out of or related to” the “employment” or “termination of employment” of “the employee named on the signature page hereof (‘Employee’) with Archstone.” II-ER-81 (emphasis added). This “signature page” was a form located in the front of the Company Policy Manual. See II-ER-79 (January 2009 memorandum from Jeanne Lynch, Archstone’s Group Vice President–Human Resources, addressed to “All Archstone Associates”). To demonstrate receipt of the Company Policy Manual, Archstone employees were to submit the signed signature page from the front of the Manual to Gina St. John, Human Resources. Id.

Archstone maintains that it provides a hard copy of the Company Policy Manual to its employees annually and that it did so for the 2009 Manual in January of that year. See Archstone Opening Brief (Archst-Br.) at 5, 8-9. Ashbey attested, however, that he never received a copy of any Company Policy Manual containing an arbitration agreement. SER-1. Archstone offered no documentary evidence to the contrary and no evidence that Ashbey ever signed the signature page from the front of the Manual.

Archstone’s addition of this new arbitration policy in 2009 was, according to the policy’s express terms, intended to supplement the company’s already-existing internal procedures for resolution of employee complaints. Specifically, the Dispute Resolution Policy stated: “Nothing contained in this Policy shall be construed to prevent or excuse an Employee from utilizing the Company’s existing internal procedures for resolution of complaints, and this Policy is not intended to be a substitute for the utilization of such procedures.” II-ER-81 (emphasis added).

In March 2009, Archstone asked its employees to sign a separate, one-page form acknowledging they had received instructions on how to access the 2009 Manual (presumably referring to accessing the online/intranet version of the Manual). Ashbey signed this Acknowledgement form on March 16, 2009, and, again, on March 8, 2010. II-ER-84, 86. Notably, this Acknowledgement does not indicate that Ashbey received a hard copy of the Manual.

The 2009 Acknowledgement form that Ashbey signed states, in relevant part:

I acknowledge that I have received directions as to how I may access the Archstone Company Policy Manual, including the Dispute Resolution Policy. I understand that Archstone can administer, interpret, discontinue, supplement, amend or withdraw any of the employment and personnel policies and procedures set forth in this Company Policy Manual. I understand that it is my responsibility to understand the Archstone Company Policy Manual, including the Dispute Resolution Policy, and to adhere to all of the policies contained herein.

* * *

I understand that the rules, policies and procedures set forth in the online/intranet Company Policy Manual are subject to change, modification or amendment by Archstone from time to time, without advance notice.

I also understand that this Company Policy Manual does not alter the employment-at-will relationship discussed in the Archstone Company Policy manual or create any contractual rights. I understand that, as an employee-at-will, either Archstone or I may terminate the employment relationship at any time, with or without notice or cause. . . . During my employment, I agree to abide by the provisions contained in this Company Policy Manual.

II-ER-84 (emphasis in original). This Acknowledgement form—which Archstone drafted and had Ashbey sign—does not mention “arbitration” or indicate that the new Dispute Resolution Policy included compulsory arbitration.

In November 2010, Archstone fired Ashbey after he complained that his wife (also an Archstone employee) had been sexually harassed by another employee and then discharged after she complained about the harassment.[3] When Ashbey sued Archstone in state court (II-ER-118, 121-23), Archstone removed the case to federal court and asked the district court to compel Ashbey to arbitrate his claims, II-ER-143 (Docket entry #1).

B. District Court’s Decision

The district court denied Archstone’s motion to compel arbitration. The court concluded that Archstone did not create a binding, enforceable agreement to arbitrate because the arbitration policy is contained in Archstone’s Company Policy Manual which, Archstone represented to its employees, “does not . . . create any contractual rights.” I-ER-1.

The court noted that “[a] party seeking to compel arbitration under the FAA [Federal Arbitration Act] has the burden to show: (1) the existence of a valid, written agreement to arbitrate in a contract; and (2) that the agreement to arbitrate encompasses the dispute at issue.” I-ER-5-6. The court further noted that the first prong—existence of a valid contractual agreement to arbitrate—is governed by state law and that, in making this determination, “federal law places arbitration clauses on equal footing with other contracts, not above them.” Id. at 6. The court applied California law to this first question and concluded that Archstone failed to show that Ashbey had contractually agreed to arbitrate his employment disputes. Id. at 7-20.

The district court concluded, first, that Archstone failed to establish that the document Ashbey signed formed a contract under California law because Archstone did not demonstrate the essential element of an “offer to form an arbitration contract.” I-ER-7. The court concluded that Ashbey’s signature on the 2009 and 2010 form Acknowledgements, by which Ashbey agreed to “adhere to all of the policies” contained in the Company Manual, was not acceptance of an adequate contractual offer because these documents expressly stated that the Company Manual does not create any contractual rights. Id. at 9 (“[T]he disclaimer that the Manual ‘does not . . . create any contractual rights’ modifies the latter statement ‘I agree to abide by’ the Manual.”). The court rejected Archstone’s argument that mere distribution of the handbook followed by Ashbey’s continued employment was sufficient under California law to establish an offer and acceptance, explaining such a conclusion was inconsistent with California state law precedent as well as the facts in this case, in which Archstone’s forms expressly disavowed the creation of a contract. Id. at 10-15.

Second, the district court concluded that Ashbey did not knowingly and voluntarily waive a judicial forum when he signed the Acknowledgements of Receipt in 2009 and 2010. Citing Kummetz v. Tech Mold, Inc., 152 F.3d 1153 (9th Cir. 1998), which the court described as “stunningly similar to the present [case],” the court concluded Ashbey did not knowingly waive a judicial forum for his Title VII claim because the Acknowledgements Ashbey signed, agreeing to abide by the company policy manual, stated the manual “does not . . . create any contractual rights.” I-ER-17-18. As the court explained, “the ‘clear implication of these clauses’ in the form was “that the [Company Policy Manual] contained a set of non-contractual policies.” Id. at 18 (quoting Kummetz, 152 F.3d at 1155). The court also noted that the document Ashbey signed did not mention “arbitration” and reserved Archstone’s right to change its company policies at any time, without advance notice, thereby further implying no contract was created. Id. at 18. The district court noted this outcome “is consistent with the vast majority of persuasive authority that addresses this issue.” Id. at 18-20 (citing cases from the Sixth and Seventh Circuits, state courts, and legal treatises).

Archstone represented below that, in addition to requiring employees to sign the Acknowledgement form in March of 2009, it also distributed a hard copy of the 2009 revised Manual and a January 2009 two-page memorandum summarizing the modifications made in the 2009 Manual. I-ER-4. The memorandum summarized the Dispute Resolution Policy as follows: “Associate and company agree to utilize an outside arbitrator for any disputes relating to employment and/or termination of employment.” Id. The memorandum referred the reader to “page 20 in the manual for a complete description of this new policy.” Id. Ashbey contends he never received a hard copy of any Manual containing the Dispute Resolution Policy and never saw the January 2009 memorandum (I-ER-4 n.3, 14), and Archstone offered no documentation to contradict Ashbey’s contentions. The district court found no need to resolve this factual dispute, however, as the court concluded that “no arbitration contract existed even taking all of Defendant’s facts as true.” Id. at 2.

SUMMARY OF ARGUMENT

The arbitration provision in Archstone’s company manual is unenforceable as a matter of law for at least two distinct reasons, both premised on the same basic facts. First, Archstone never created a contract with Ashbey to arbitrate his employment disputes because Archstone never made an offer to Ashbey concerning arbitration. To the contrary, Archstone manifested its intent not to be bound by any of the provisions in its Company Policy Manual when it expressly stated, in the Acknowledgement of Receipt form Archstone drafted and had Ashbey sign, that the Manual “does not . . . create any contractual rights.” See I‑ER-7-15. Ashbey’s continued employment after Archstone added the Dispute Resolution Policy to its Company Manual did not constitute Ashbey’s acceptance of Archstone’s arbitration policy because there can be no “acceptance” if an offer was never made. And since Archstone drafted the Acknowledgement form that Ashbey signed, any ambiguity concerning the scope of Archstone’s disclaimer should be construed against Archstone, as the drafting party. Therefore, the district court did not err in construing Archstone’s disclaimer to apply to the entire Policy Manual and not to just the at-will employment relationship, as Archstone contends.

Second, Ashbey’s signature on the Acknowledgement form does not evidence a “knowing” consent on Ashbey’s part to waive a judicial forum for his federal statutory civil rights claim. Not only did Archstone expressly state, in the Acknowledgement Ashbey signed, that the company’s Policy Manual “does not . . . create any contractual rights,” the Acknowledgement form also indicated that all of the policies in its Manual were subject to unilateral change by Archstone without any advance notice and did not explain that the referenced “Dispute Resolution Policy” required arbitration of any disputes arising under federal civil rights statutes. Indeed, the Acknowledgement Ashbey signed did not mention “arbitration” at all. This Court relied on these same three factors when it held that the employer in Kummetz, 152 F.3d 1153, failed to demonstrate the plaintiff had knowingly waived a judicial forum for his ADA claim.

There is no merit to Archstone’s argument that Ashbey knowingly agreed to arbitration because he signed an Acknowledgement form that expressly mentioned Archstone’s “Dispute Resolution Policy.” The term “dispute resolution” covers a wide variety of techniques employers can use to address employee complaints. Archstone, itself, utilized internal procedures other than arbitration to resolve employee complaints prior to 2009. See discussion of Archstone policy, supra p.5. Archstone has offered no basis for this Court to conclude that Ashbey understood, or that any reasonable employee would necessarily think, the phrase “Dispute Resolution Policy” means “arbitration.” Thus, Ashbey’s signature on the March 2009 and March 2010 Acknowledgement forms, indicating both that he received instructions on how to access the 2009 and 2010 Company Manuals and that those Manuals included a “Dispute Resolution Policy,” does not establish that Ashbey knew the Dispute Resolution Policy required him to waive a judicial forum for any claims arising under federal civil rights statutes and to arbitrate those employment disputes instead.

The conclusion that Ashbey did not knowingly waive a right to a judicial forum for his federal statutory claim is even more compelling given Archstone’s express statement in the Acknowledgement Ashbey signed that the Company Policy Manual “does not . . . create any contractual rights.” As the district court correctly concluded, Ashbey’s signature indicated, at most, that Ashbey was aware the Manual “contained a set of non-contractual policies.” I-ER-18.

ARGUMENT

I. The District Court Correctly Denied Archstone’s Motion to Compel Arbitration because Archstone Failed to Prove that It Offered, and Ashbey Accepted, a Contractual Agreement to Arbitrate his Employment Claims, Including his Title VII Claim.

The seminal question in this appeal—whether Archstone’s actions imposed a binding requirement on Ashbey to arbitrate his employment disputes—is governed by general contract principles under California state law. Applying those state law principles, the district court correctly concluded that Archstone failed to create a contractual agreement to arbitrate because the Acknowledgement form Archstone drafted and required Ashbey to sign expressly denied the creation of “any contractual rights.” When an employer like Archstone adopts an arbitration policy in its company manual but then states, in a separate Acknowledgement of Receipt form signed by its employees, that the company manual does not create any contractual rights, those employees are not contractually bound to arbitrate their employment disputes.

Archstone’s Dispute Resolution Policy states that it is governed by the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq. II-ER-81; Archst-Br. at 14-16. The FAA provides that “[a] written provision in . . . a contract . . . to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . 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. If an arbitration agreement covers a matter pending before a court, a party can ask the court either to stay the judicial proceeding pending arbitration or to compel the other party to arbitrate his or her claim. 9 U.S.C. §§ 3, 4.

Before a party can obtain a stay under Section 3 or an order to compel arbitration under Section 4, the court must first determine whether the parties agreed to submit their claims to arbitration. See Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 90 (2000) (“In determining whether statutory claims may be arbitrated, we first ask whether the parties agreed to submit their claims to arbitration.”). As the Supreme Court has repeatedly explained, “‘arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.’” Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002) (citations omitted); AT&T Techs., Inc. v. Commc’n Workers of Am., 475 U.S. 643, 648-49 (1986) (citations omitted).

The oft-noted “‘liberal federal policy favoring arbitration’” requires courts addressing the enforceability of arbitration in a particular situation to “place arbitration agreements on an equal footing with other contracts . . . and enforce them according to their terms.” AT&T Mobility v. Concepcion, 131 S. Ct. 1740, 1745-46 (2011) (citations omitted). This “liberal federal policy” does not, however, elevate arbitration over other types of contractual agreements with respect to the question of whether a contract to arbitrate was formed and whether it binds a particular party. Comer v. Micor, Inc., 436 F.3d 1098, 1104 n.11 (9th Cir. 2006) (liberal federal policy favoring arbitration agreement best understood as concerning “scope of arbitrable issues” and “does not apply to the determination of whether there is a valid agreement to arbitrate between the parties”) (citations and quotations omitted); Metters v. Ralphs Grocery, 161 Cal. App. 4th 696, 701 (Cal. Ct. App. 2008) (“[F]ederal policy in favor of arbitration does not come into play . . . until a court has found the parties entered into a valid contract under state law.”).

Thus, there is no “thumb on the scale” in favor of arbitration in determining whether parties have contractually agreed to arbitrate their disputes. BCS Ins. Co. v. Wellmark, Inc., 410 F.3d 349, 352 (7th Cir. 2005) (“clear language” specifying arbitration is at the option of the insured “cannot be overridden by a ‘presumption of arbitration’ to force mandatory arbitration . . . where only optional arbitration was specified”). Rather, a party seeking to compel arbitration under the FAA is required to prove, at the outset, the existence of a valid agreement to arbitrate the claim(s) in question. Cox v. Ocean View Hotel Corp., 533 F.3d 1114, 1119-20 (9th Cir. 2008).[4]

As Archstone acknowledges, courts “look to the relevant state law of contracts when determining whether the parties entered into a valid and enforceable agreement to arbitrate.” Archst-Br. at 20 (citing First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995) (courts look to “ordinary state-law principles that govern the formation of contracts”)). Because proving the existence of an arbitration contract is a statutory prerequisite to granting a motion to enforce arbitration under the FAA, the party seeking to compel arbitration bears the burden of proving the existence of a valid agreement to arbitrate under state law principles (here, the law of California) governing the formation of contracts. Mitri v. Arnel Mgmt. Co., 157 Cal. App. 4th 1164, 1169 (Cal. Ct. App. 2007); see also Sparks v. Vista Del Mar Child & Family Servs., 207 Cal. App. 4th 1511, 1518 (Cal. Ct. App. 2012); Cox, 533 F.3d at 1119.

Archstone did not meet its burden to establish the existence of an enforceable agreement to arbitrate because, as the district court correctly held, Archstone failed to prove it ever extended an “offer” to its employees to be contractually bound to arbitrate their disputes. I-ER-9-10. In determining whether a party seeking to enforce a contract has established the essential contract element of an “offer” that manifests the offerer’s willingness to enter into a binding agreement, the relevant question under California law “is whether the individual to whom the communication was made had reason to believe that it was intended as an offer.” See, e.g., Donovan v. RRL Corp., 27 P.3d 702, 709 (Cal 2001) (citations omitted). Archstone notified its employees in 2009 that its Company Policy Manual contained a “Dispute Resolution Policy.”[5] The March 2009 Acknowledgement form Archstone asked its employees to sign specifically stated that the Manual “does not . . . create any contractual rights.” II-ER-84. Regardless of what policies were included in the Company Manual or what policies Archstone’s employees might have known were in the Manual, based on this disclaimer, Archstone’s employees had no reason to believe Archstone intended its Manual to create any contractual rights because the plain language of the Acknowledgement indicated it did not.

Merely mentioning, in the same Acknowledgement, that the Company Policy Manual contains a Dispute Resolution Policy did not constitute an “offer” by Archstone to enter into a contractual agreement with Ashbey with respect to the arbitration policy because—again—the disclaimer plainly indicated otherwise. See Sparks, 207 Cal. App. 4th at 1522-23 (noting that “[e]fforts by an employer to have it both ways by claiming that a handbook is not a contract [as here] but that an employee acknowledging receipt of a handbook has contracted to arbitrate any disputes with his . . . employer can backfire.”); see also Hergenreder v. Bickford Senior Living Group, LLC, 656 F.3d 411, 418 (6th Cir. 2011) (holding there was no offer by employer to form arbitration agreement based on policy in handbook when employer represented in acknowledgement form that “handbook does not constitute any contractual obligation” on employee or employer’s part).

Likewise, Ashbey’s agreement, in the Acknowledgement, to “abide by the provisions” in the Manual did not create a contractual obligation to arbitrate employment disputes because, again, that agreement appeared in the same document as Archstone’s express statement that the Manual did not create any contractual rights. At most, Ashbey’s stated “agree[ment] to abide by the provisions contained in this Company Policy Manual” signaled Ashbey’s recognition that Archstone expected certain things of him as an employee, such as showing up for work on time and calling in when absent, among other things. See, e.g., I-ER-18 (“‘clear implication’ of the language in the [Acknowledgement forms] is that the Manual ‘contained a set of non-contractual policies”); accord Sparks, 207 Cal. App. 4th at 1522 (employee’s acknowledgement he was “governed” by contents of employee handbook “at best . . . expressed the employee’s understanding that he must comply with personnel policies and obligations, rather than an agreement to arbitrate”). As the district court correctly reasoned, Archstone’s request that its employees “agree to abide by the provisions contained in [the] Company Policy Manual” (II-ER-84, 86) “is not an offer because the request does not manifest a willingness to enter into a bargain. Rather [the forms Ashbey signed in 2009 and 2010] manifest the exact opposite—Defendant’s intent not to be bound by the terms of its own Manual.” I-ER-9.

Other state and federal courts applying similar state contract law principles to similar disclaimer provisions have reached the same result. See, e.g., Etienne v. Hang Tough, Inc., 2009 WL 1140040, at *2-3 (S.D. Fla. 2009) (no enforceable agreement to arbitrate under Florida law where, among other factors, acknowledgement was silent on arbitration and handbook and acknowledgement both disclaimed handbook was a contract); YMCA of Greater El Paso v. Garcia, 361 S.W.2d 123 (Tex. Ct. App. 2011) (no enforceable agreement to arbitrate because personnel manual containing arbitration policy and acknowledgement signed by employee both stated manual not a contract); Douglass v. Pflueger Hawaii, Inc., 110 Haw. 520 (2006) (no enforceable agreement to arbitrate where signed acknowledgement, in which employee agreed to “abide by the contents of” employee handbook, was immediately preceded by employer’s disclaimer that policies described in handbook “do not create a contract between you and the company” and where acknowledgement stated that provisions in handbook “do not constitute an employee contract”); Hubner v. Cutthroat Commc’ns., Inc., 318 Mont. 421, 428-30 (2003) (arbitration clause in handbook unenforceable because employee’s acknowledgement that she was “required to abide by all the conditions and requirements of the Employee Handbook” was followed by company’s disclaimer that “Handbook shall not constitute a contract of employment”); Ex parte Beasley, 712 So. 2d 338, 340-41 (Ala. 1998) (arbitration clause in handbook unenforceable because employer represented “no written statement or agreement in this handbook is binding”); Heurtebise v. Reliable Bus. Computers, 452 Mich. 405, 413-14 (1996) (arbitration provision unenforceable because handbook statement that “the Policies specified herein do not create any employment or personal contract, express or implied” plainly suggests employer did not intend to be bound by handbook provisions, which included arbitration clause).[6]

Archstone challenges the district court’s ruling on several grounds.[7] Archstone argues, first, that this Court should construe the phrase “does not . . . create any contractual rights” in light of the Acknowledgement form as a whole and conclude, based on the principle of ejusdem generis, that the disclaimer applies only to the at-will status of Archstone’s employees. Archstone argues that the “no contractual rights” language is “sandwiched between references to at-will employment” and, therefore, should be read narrowly to disclaim only the creation of any contractual rights that would alter the at-will relationship. Archst-Br. at 21-22.

To the contrary, as this Court has noted, California courts hold the maxim of ejusdem generis inapplicable where, as here, “the contract language is unambiguous.” F.T.C. v. EDebitPay, LLC, 695 F.3d 938, 943-44 (9th Cir. 2012) (citation omitted). Contract language is “ambiguous only if it is reasonably susceptible of two or more interpretations.” In re Tobacco Cases I, 186 Cal. App. 4th 42, 48 (Cal. Ct. App. 2010) (citation omitted). The disclaimer in the Acknowledgement Archstone required its employees to sign is reasonably susceptible of only one interpretation: that Archstone wanted to ensure its employees understood that nothing in Archstone’s 100-page Company Policy Manual created any contractual rights.

Beyond explaining employees’ status as at-will employees, Archstone’s Policy Manual contains policies describing numerous workplace rights and employee benefits, including “a fair workplace: equal employment and harassment,” “corporate opportunity,” “position classification, associate status and hours of operation,” “group health coverage,” “transportation fringe benefits,” housing incentive program,” and “associate referral bonus,” among other things. See SER3-5. The plain and unambiguous meaning of the phrase “or create any contractual rights” in the Acknowledgement is that Archstone wanted to ensure its employees understood not only that they were and remained “at-will” employees, but also that they could not assert any of these other policies described in the Company Manual as contractual obligations on Archstone’s part.

The fact that the Dispute Resolution Policy, itself, is written in terms that mandate arbitration, see Archst-Br. at 22-23, does not help Archstone’s case. The question before this Court is whether Archstone, at any point, made an offer to Ashbey that he should have understood as expressing an intent, on Archstone’s part, to be bound by the Company Manual. But Archstone’s own evidence establishes the opposite. Archstone expressly informed Ashbey, in the March 2009 and March 2010 Acknowledgements Ashbey signed, that the Policy Manual does not “create any contractual rights.” The fact that the Dispute Resolution Policy is written in mandatory terms does not alter the impact of the explicit disclaimer language in the Acknowledgement form Archstone asked Ashbey to sign.

Nor, as Archstone argues, does this interpretation of the Dispute Resolution Policy render the entire Company Policy Manual pointless under the theory that “an employee would not have to follow any of the policies in the policy manual.” Archst-Br. at 23. Archstone has made it clear to its employees that they must follow all of the policies in the Company Manual or, presumably, face possible discipline or discharge. Archstone is simply limited to exercising these traditional employer prerogatives for violation of its policies. As Archstone expressly represented to its employees that the Manual does not create any contractual rights, Archstone cannot sue its employees for breach of contract or seek specific performance if employees violate Archstone’s policies.

In any event, Archstone’s reliance on ejusdem generis is misplaced because that maxim typically applies where a general term is followed by a list of specific terms and not, as here, where a general term follows one, specific term, separated by the disjunctive “or.” Cf. Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 224-25 (2008) (applying the doctrine in the context of statutory construction). And to the extent Archstone created any ambiguity by including, in the Acknowledgement it drafted, both language in which the employee agrees “to adhere to all of the policies” and “abide by the provisions” in the Company Manual and language in which Archstone disclaims the creation of “any contractual rights,” such ambiguity is properly construed against Archstone as the drafting party. Sparks, 207 Cal. App. 4th at 1522-23 (citing Hubner, 318 Mont. at 429-30). Construing the Acknowledgement against Archstone (as the drafter) and applying the ordinary meaning of the phrase “does not . . . create any contractual rights,” the disclaimer properly applies to the entire Company Policy Manual—including the arbitration policy—and not just to the at-will relationship.

Finally, there is no merit to Archstone’s argument that the Acknowledgement specifically incorporated the arbitration agreement and informed Ashbey that he was agreeing to arbitrate any future disputes and, therefore, Ashbey’s continued employment after he signed the 2009 Acknowledgement evidenced his acceptance of the new arbitration policy. Archst-Br. at 29-39. There can be no “acceptance” absent an “offer.” Here, there was no offer for Ashbey to accept because Archstone disclaimed, in the Acknowledgement Ashbey signed, that the Manual created any contractual rights. Thus, Ashbey’s continued employment did not constitute an agreement to arbitrate, as the district court correctly held. See I-ER-10-12.

Likewise, there is no merit to Archstone’s argument that by “agreeing to adhere to all of the policies contained” in Archstone’s Manual including the Dispute Resolution Policy (see II-ER-84), Ashbey “expressly agreed to arbitrate disputes.” See Archst-Br. at 34-36. The general rule that someone agreeing to a contract is bound by the terms even if he did not read them does not apply when the document the employee signed “does not appear to be a contract and the terms are not called to the attention of the recipient.” See Metters, 161 Cal. App. 4th at 701-02 (no formation of contract to arbitrate). This is precisely the case here: the Manual did not appear to be a contract because the Acknowledgement explicitly said otherwise, and by omitting the term “arbitration” from the Acknowledgement, Archstone failed to call the arbitration policy to Ashbey’s attention. Archstone’s reliance on Craig v. Brown & Root, Inc., 84 Cal. App. 4th 416 (Cal. App. Ct. 2000) (arbitration binding on employee who continued employment after receiving notice of policy; notice did not include contractual disclaimer), and Asmus v. Pacific Bell, 23 Cal. 4th 1 (2000) (employer could unilaterally rescind job security benefit upon notice to employees), see Archst-Br. at 30-35, is entirely unavailing.

II. Ashbey did not Knowingly Waive a Judicial Forum for his Title VII Claim.

The district court also correctly ruled that Archstone’s arbitration policy is unenforceable for an additional reason based on the same disclaimer language: Ashbey did not knowingly waive his right to a judicial forum. Employees may contractually agree to arbitrate their employment disputes and thereby waive a judicial forum to which they would otherwise be entitled. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991). This Court has held, however, that the legislative history of Title VII indicates Congress’s intent that any such waiver with respect to a Title VII claim must be “knowing.” See Prudential Ins. Co. of Am. v. Lai, 42 F.3d 1299, 1304-05 (9th Cir. 1994) (“Title VII plaintiff may only be forced to forego [his] statutory remedies and arbitrate [his] claims if [he] has knowingly agreed to submit such disputes to arbitration.”). Accord Skirchak v. Dynamics Research Corp., 508 F.3d 49, 58-59 & n.5 (1st Cir. 2007) (court applies “independent federal scrutiny” of “adequacy of the notice of waiver of judicial rights” to petitions to enforce arbitration of Title VII and ADA claims); Walker v. Ryan’s Family Steak Houses, Inc., 400 F.3d 370, 381 (6th Cir. 2005) (applying knowing and voluntary standard to waiver of judicial forum for federal statutory employment claims).

In Lai, this Court ruled that Prudential could not compel employees to arbitrate their Title VII claims because the document Prudential asked its employees to sign did not explain to employees that they were entering into such an agreement. See Lai, 42 F.3d at 1304-05 (when plaintiffs signed U-4 form, they could not have understood they were agreeing to arbitrate their sexual harassment suits because form did not purport to describe types of disputes subject to arbitration). In Nelson v. Cyprus Bagdad Copper Corp., 119 F.3d 756, 760-62 (9th Cir. 1997), this Court applied this same analysis to a claim under the ADA. This Court in Nelson held that neither the employee’s signature on an acknowledgement form stating he had received a copy of the handbook (which included the arbitration policy), nor the employee’s continued employment after acknowledging he had received the handbook, constituted the “‘knowing agreement’ contemplated by Lai.” Id. at 762. This Court explained: “Any bargain to waive the right to a judicial forum for civil rights claims . . . in exchange for employment or continued employment must at the least be express: the choice must be explicitly presented to the employee and the employee must explicitly agree to waive the specific right in question. That did not occur in the case before us.” Id.

In Kummetz, this Court, under facts very similar to this case, held that Kummetz’s employer could not compel him to arbitrate his ADA claims based on an arbitration policy found in the company’s Employment Information Booklet. This Court reasoned that, although Kummetz had signed a form acknowledging he had received the company’s Booklet, the acknowledgement form (1) made no reference to the arbitration policy in the Booklet, (2) included the employer’s reservation of a unilateral right to change the policy at any time, and (3) represented to the employee, as Archstone represented to Ashbey here, that the Booklet did not create any contractual rights. Kummetz, 152 F.3d at 1154, 1155-56. Those same three elements are present here. In the Acknowledgement of Receipt forms Archstone asked Ashbey to sign (II-ER-84, 86), Archstone reserved the right to make unilateral changes in its policies without any advance notice to its employees. The same documents failed to mention that the Dispute Resolution Policy consisted of compulsory “arbitration.” And Archstone expressly disclaimed, in these Acknowledgements, that its Company Manual created any contractual rights. Noting these factors, the district court stated that Archstone could point to nothing demonstrating Ashbey had knowingly waived a judicial forum for his Title VII claim. As the district court concluded, the “‘clear implication’ of the language in the [2009 and 2010 Acknowledgements of] Receipt is that the Manual ‘contained a set of non-contractual policies’.” I-ER-18 (quoting Kummetz; emphasis added by district court).

Archstone questions the relevance of Kummetz, contending the contractual disclaimer in Kummetz did not factor into this Court’s analysis, only the absence of any reference to the arbitration policy. Archstone further argues that this case differs because Archstone mentioned, in the Acknowledgement, that the 2009 Manual contained a new “Dispute Resolution Policy.” This Court’s ruling in Kummetz is broader than Archstone contends, however. In explaining how Kummetz’s employer failed to demonstrate Kummetz’s “knowing” waiver of his right to a judicial forum, this Court noted that not only did the acknowledgement lack any “explicit reference to arbitration or waiver of right to sue,” but it actually “contained other language negating the idea that the booklet amounted to or included a contractual agreement,” referencing the employer’s express statement that the booklet “in no way constitutes an employment contract” and its reservation of the right to change its policies unilaterally without prior notice. Kummetz, 152 F.3d at 1155. This Court relied on all three of these factors in ruling that Kummetz’s signature acknowledging he had received the information booklet did not constitute the “knowing” waiver of rights this Court requires.

The Acknowledgement of Receipt form Archstone asked its employees to sign—indicating, among other things, that Archstone had added a new “Dispute Resolution Policy” to its Company Policy Manual—likewise failed to mention that the Dispute Resolution Policy required compulsory “arbitration” and, as in Kummetz, it reserved Archstone’s right to make unilateral changes without advance notice and stated expressly that the Manual does not create any contractual rights. For the same reasons this Court found no knowing waiver in Kummetz, the district court here correctly held that Ashbey did not knowingly waive a judicial forum for his Title VII claim.

Archstone suggests that it sufficed for Archstone to inform Ashbey, in the Acknowledgement he signed, that the Manual now contained a “Dispute Resolution Policy” without explaining that the Dispute Resolution Policy consisted of compulsory arbitration. See Archst-Br. at 32, 34, 36. If the Acknowledgement had not included the contract disclaimer language, Archstone might be correct under ordinary contract principles. See, e.g., Pinnacle Museum Tower Ass’n v. Pinnacle Market Dev., 55 Cal. 4th 223, 236 (2012) (“An arbitration clause within a contract may be binding on a party even if the party never actually read the clause.”). This is not true, however, under this Court’s “knowing and voluntary” requirement for waiver of a judicial forum. Applying this doctrine, the fact that the Acknowledgement Ashbey signed mentioned only the Dispute Resolution Policy and failed to alert employees that the Dispute Resolution Policy consisted of compulsory arbitration, in combination with Archstone’s contractual disclaimer and its reservation of the unilateral right to make changes to its Manual without any advance notice, dictates the conclusion that Ashbey’s signature on the Acknowledgement did not constitute a “knowing” waiver here.

CONCLUSION

For the foregoing reasons, this Court should affirm the district court’s decision denying Archstone’s motion to compel arbitration and remand this case for further proceedings.

[1] The Commission takes no position with respect to any other issue presented in this appeal.

[2] Volumes I and II of Archstone’s Excerpts of Record are denoted “I-ER” and “II-ER,” respectively. Ashbey’s Supplemental Excerpts of Record are denoted “SER.”

[3] Ashbey’s wife filed a separate lawsuit alleging retaliation for having complained about sexual harassment. That lawsuit is not implicated in this appeal.

[4] If a party opposing a motion to compel arbitration contests the validity of an agreement to arbitrate, the federal court—not an arbitrator—must decide whether the arbitration provision is valid and enforceable. Rent-A-Center, West, Inc. v. Jackson, 130 S. Ct. 2772, 2778 (2010); Cox, 533 F.3d at 1119-20.

[5] The March 2009 Acknowledgement form Ashbey signed did not specifically identify the Dispute Resolution Policy as “new,” but Archstone concedes that 2009 was the first year it included this policy in the Company Policy Manual. Archst-Br. at 8-9.

[6] Archstone attempts, unsuccessfully, to distinguish the cases from other jurisdictions on which the district court relied, including Douglass, supra, arguing these cases involved other factors in addition to, or instead of, the contract disclaimer language present here. See Archst-Br. at 29 n.2. In every case, however, the contract disclaimer language was a significant factor. Furthermore, many of the additional factors on which those courts relied—such as an employer’s failure to mention of “arbitration” in the acknowledgements employees were asked to sign—are also present here.

[7] Archstone also argues that an arbitration agreement need not be signed by the parties to be valid. See, e.g., Archst-Br. at 19-21. Because the district court did not rely on the absence of a signed arbitration agreement, we do not address that argument here.