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Title: Michael Ashbey v. Archstone Property Management

April 13, 2012

TITLE: MICHAEL ASHBEY
v.
ARCHSTONE PROPERTY MANAGEMENT, INC., ET AL.



The opinion of the court was delivered by: The Honorable David O. Carter, Judge

O

CIVIL MINUTES -- GENERAL

PRESENT: THE HONORABLE DAVID O. CARTER, JUDGE

Julie Barrera N/A Courtroom Clerk Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFF: ATTORNEYS PRESENT FOR DEFENDANT:

None Present None Present

PROCEEDINGS: (IN CHAMBERS): ORDER DENYING MOTION TO

COMPEL ARBITRATION

Before the Court is a Motion to Compel Arbitration ("Motion") filed by Defendant Archstone Communities LLC ("Defendant"). (Dkt. 8).

This case raises the question of whether an employer can enforce an arbitration provision in an employment handbook where the employer represented to its employee that the handbook "does not . . . create any contractual rights." The Court answers that question in the negative. Accordingly, the Court DENIES the Motion.*fn1

I.Background

Defendant seeks to compel arbitration of state and federal claims brought by Plaintiff Michael Ashbey ("Plaintiff") arising from Defendant's alleged violation of the Labor Code and wrongful termination of Plaintiff. See Michaels Decl. ("Compl.") (Dkt. 4) Ex. A at ¶ 6, 37-44. Plaintiff and his wife were both fired by Defendant allegedly in retaliation for a complaint made by his wife about sexual harassment by another employee. Id. at ¶ 37-44.

The gravamen of Defendant's argument is that the existence of a valid, written arbitration contract is shown by the arbitration provision in Defendant's Company Policy Manual ("Manual") and Plaintiff's signature on two forms ("2009 and 2010 Receipts") in which Plaintiff acknowledges receiving directions on how to access the Manual.

Although the parties dispute some of the following facts, the Court need not resolve this fact dispute because the Court concludes, infra, that no arbitration contract existed even taking all of Defendant's facts as true.*fn2 Accordingly, the Court assumes without deciding that Defendant's facts are true.

a.2009 and 2010 Receipts acknowledging access to Manual

Plaintiff's signature appears at the signature line on the bottom of a one-page document titled "Acknowledgement of Receipt of Archstone Company Policy Manual 2009" ("2009 Receipt"), which reads as follows:

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 this document supersedes any of the Human Resources policies contained in any prior Human Resources handbook, Company Policy Manual, and Code of Conduct.

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. I understand that if at any time I have any questions regarding this Company Policy Manual I can discuss them with my supervisor, office manager, the Legal Department or a Human Resources representative. During my employment, I agree to abide by the provisions contained in this Company Policy Manual.

Please sign and return this form to the Archstone Human Resources Department at 9200 East Panorama Circle, Suite 400, Englewood. CO 80112.

See Lynch Decl. (Dkt. 8) Ex. C (bold font and italics in original).

Plaintiff's signature also appears at the signature line on the bottom of a one-page document titled "Acknowledgement of Receipt of Archstone Company Policy Manual 2010" ("2010 Receipt"). See id. Ex. D. This document has identical language to the 2009 Receipt, except that the third paragraph is replaced with the following sentence:

I understand that the rules, policies and procedures set forth in the printed version of the Company Policy Manual are subject to change, modification or amendment by Archstone from time to time, without advance notice, and that all changes are included in the online/intranet version of the Company Policy Manual and such changes are effective when posted.

b.Defendant's distribution or online posting of the Manual

Defendant avers that "a memorandum was distributed to all employees along with a hard copy of the 2009 Company Policy Manual."*fn3 Lynch Decl. (Dkt. 8) at ¶ 6. Defendant has submitted an exhibit of the memorandum, which contains a table of four rows and three columns under the heading "Summary of Modifications." Id. Ex. A.The top row contains the headings "Policy," "Older Version," and "New Version." Id. Ex. A. The last row appears as follows:

Dispute Resolution Policy Not in 2008 manual. Associate and company agree to utilize an outside arbitrator for any disputes relating to employment and/or termination of employment. Please see page 20 in the ...


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