In this wrongful discharge case, plaintiff Cora C. Parker brings suit against her former employers, Hahnemann University Hospital, Tenet Healthcare Corporation, Tenet Healthsystem Hahnemann, LLC, Tenet Health Philadelphia, Inc., and John Does I to X, alleging that her rights under the Federal Family Medical Leave Act, 29 U.S.C. § 2601 ("FMLA") were violated when defendants discharged plaintiff upon her return to work on May 15, 2000 after her approved medical leave. Plaintiff seeks reinstatement to her position as shift director/bed chief of Hahnemann University Hospital/Tenet Healthcare Corporation or reinstatement to an equivalent position, compensatory damages, and attorneys' fees and costs related to this suit. Presently before the Court are defendants' motions to compel arbitration of plaintiff's FMLA claim pursuant to the Federal Arbitration Act, 9 U.S.C. § 4, and to then dismiss plaintiff's action in this Court for failure to state a claim pursuant to Rule 12(b)(6), Fed.R.Civ.P.

The issue to be decided in this opinion is whether an agreement to arbitrate all claims arising from wrongful termination was made, where the signed employment offer incorporated, but did not specifically mention, arbitration. As discussed herein, this Court finds that it was not, and plaintiff's FMLA claim should proceed to trial in this Court.

I. BACKGROUND

Plaintiff, Cora C. Parker ("Parker"), is a duly licensed and certified nurse in New Jersey and Pennsylvania. (Compl., ¶ 8.) Ms. Parker began her employment with defendants in or about 1983, when she was hired as a critical care nurse in the neurological surgical intensive care unit at Hahnemann University Hospital ("HUH"). (Compl., ¶ 11.) In or about 1986, plaintiff became a critical care nurse in the trauma unit at HUH. (Compl., ¶ 12.) In or about 1998, plaintiff was promoted to part-time shift director. (Compl., ¶ 13.)

On November 4, 1998, plaintiff was offered employment by defendant Tenet HealthSystem, Philadelphia, Inc. ("Tenet"), at HUH in the position she then held. Also on November 4, 1998, plaintiff Parker signed and accepted the offer of employment from Tenet. (Scenna Certif., Ex. A.) That offer read, in pertinent part:

As a result of financial difficulties, Tenet assumed operational control of Hahnemann University Hospital on November 11, 1998. ( See Scenna Certif., Ex. A.) It is unclear from the complaint or submissions whether Ms. Parker was working as a critical care nurse in the trauma unit or as a shift director at the time of the change in control.

Your employment will be subject to Tenet's Open Door Policy and Fair Treatment Process ("FTP") as more fully described in the accompanying Attachment. The FTP and its provisions shall be deemed incorporated into this offer letter, a full copy of which you acknowledge has been made available in the Human Resources Department for your review.

Your employment will be subject to Tenet's customary policies, procedures and rules.

To accept this offer, please sign this letter and return it . . . no later than noon on Monday, November 9, 1998 . . . .

(Scenna Certif., Ex. A.) The offer did not mention arbitration as being a part of the FTP. (Id.) On December 14, 1998, plaintiff signed an Employee Acknowledgment Form Addendum, which provided that the undersigned "acknowledge[s] receipt of the employees handbook and agree[s] to abide by its terms to the degree it is not in conflict with a collective bargaining agreement that covers my employment." (Scenna Supplemental Certif., Ex. B.)

In or about May, 1999, plaintiff was assigned to the position of Bed Chief, in addition to her part-time position as Shift Director. (Compl., ¶ 14.) Plaintiff's duties included working with the staffing department to maximize hospital resources, maintaining bed availability status, and facilitating timely transfers and admissions. (Id., ¶ 15.) In or about March, 2000, plaintiff became ill and disabled as a result of a serious health condition. (Compl., ¶ 16.) Also in March, 2000, plaintiff requested continuous medical leave under the terms of defendants' Family Medical Leave Act. (Compl., ¶ 17.) Defendants granted plaintiff's request and the leave commenced on March 20, 2000. (Compl., ¶¶ 17, 19.) Plaintiff alleges that she advised defendants that her physician had released her to return to work on May 12, 2000. (Compl., ¶ 20.) On May 12, 2000, plaintiff returned to work at HUH/Tenet. (Compl., ¶ 21.) On May 15, 2000, defendants advised plaintiff that her position had been eliminated and that she was being terminated, effective immediately. (Compl., ¶ 22.) To date, no reinstatement or offer of alternative employment has been offered to plaintiff by defendants. (Compl., ¶ 23.)

The terms of Tenet's Open Door and Fair Treatment Policy are set forth in the last marked section of the employee handbook, just before the Employee Acknowledgment Form. (See Scenna Supplemental Certif., Ex. B at 65-73.) The handbook provides:

There is no dispute that the handbook section covering the Open Door Policy and FTP is clearly marked and prominently listed in the index.

The FTP applies to all employees, regardless of length of service or status, and covers all disputes relating to or arising out of an employee's employment with the company or the termination of employment. . . . Examples of the types of disputes or claims covered by the FTP include claims for wrongful termination of employment, breach of contract, employment discrimination, harassment or retaliation under the Americans With Disabilities Act, the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964 and its amendments or any state or local discrimination laws, tort claims, or any other legal claims and causes or [sic] action recognized by local, state or federal law or regulations. Your decision to accept employment or to continue employment with the company constitutes your agreement to be bound by the FTP. Likewise, the company agrees to be bound by the FTP. This mutual agreement to arbitrate claims means that both you and the company are bound to use the FTP as the only means of resolving employment-related disputes and to forego any right either may have to a jury trial on issues covered by the FTP. . . .

(Scenna Certif., Ex. A. at 65) (emphasis in original). The handbook also sets forth a five-step process for dispute resolution. (Scenna Certif., Ex. A at 66-69.)

The five Open Door Policy steps are: 1) Submit Dispute to Supervisor; 2) Appeal Supervisor's Decision to the Department Head; 3) Appeal Decision of the Department Head to Administration; 4) Appeal Administration's Decision to the FTP Committee; and 5) Final and Binding Arbitration. Plaintiff does not dispute that she did not pursue any of the five Open Door Policy Steps for her wrongful discharge claim.

On August 25, 2000, plaintiff filed a complaint in this Court alleging that defendants violated the FMLA by (1) failing to return plaintiff to the position she held prior to her leave, (2) failing to properly notify her that her position was being eliminated while she was on leave, and (3) failing to offer her an equivalent position upon eliminating her old one. (Compl., ¶ 25.) Plaintiff alleges that as a proximate cause of defendants' actions, she has suffered economic loss, loss of wages, loss of employment benefits, and emotional and physical pain and suffering. (Compl., ¶ 26.) Plaintiff seeks immediate reinstatement to her position as shift director/bed chief at HUH or immediate reinstatement in an equivalent position, compensatory damages in an unspecified amount, and attorneys' fees and costs related to this suit. (Id.) On November 20, 2000, defendants filed the instant motions to compel arbitration pursuant to the terms of the FTP and to dismiss plaintiff's FMLA claim. For the reasons discussed herein, defendants' motions will be denied.

II. DISCUSSION

Defendants seek to compel binding arbitration of plaintiff's claim because, they argue, plaintiff is bound by the terms of defendants' "Fair Treatment Process," which was fully outlined in the employee handbook and incorporated into plaintiff's November, 1998 offer of employment from Tenet. Plaintiff argues that because arbitration was not specifically mentioned in the offer of employment, she did not agree to the arbitration process and thereby waive her right to a jury trial arising from her wrongful discharge claim when she accepted the offer, and therefore should not now be compelled to submit her FMLA claim to arbitration.

The issue presently before this Court is whether plaintiff agreed to arbitrate all claims arising from her employment or the termination thereof, where the terms of the FTP were detailed fully in an employee handbook, of which plaintiff acknowledged receipt, but where the signed employment offer explicitly incorporating the terms of the FTP did not mention arbitration. If this Court finds that plaintiff did agree to the terms of the FTP by accepting Tenet's offer of employment, then defendants motion to compel arbitration of plaintiff's claim must be granted and plaintiff's FMLA claim in this Court will be dismissed. Otherwise, defendants' motions must be denied and plaintiff's FMLA claim shall proceed to trial in this Court.

A. Rule 12(b)(6) Standard

A Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted must be denied "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A district court must accept as true all well-pleaded allegations in the Complaint and any and all reasonable inferences derived from those allegations. Schanzer v. Rutgers Univ., 934 F. Supp. 669, 673 (D.N.J. 1996) (citing Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir. 1987)); Unger v. National Residents Corp. v. Exxon Co., U.S.A., 761 F. Supp. 1100, 1107 (D.N.J. 1991). In addition to the Complaint, the court may also consider authenticated documents appended to the submissions of the parties. Schanzer, 934 F. Supp. at 671 n. 1 (citing 5A Charles A. Wright Arthur R. Miller, Federal Practice and Procedure, § 1357, at 299 (2d ed. 1990)). It is not necessary for the plaintiff to plead evidence, and it is not necessary to plead the facts that serve as the basis for the claim. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446 (3d Cir. 1977); In re Midlantic Corp. Shareholder Litigation, 758 F. Supp. 226, 230 (D.N.J. 1990). The question before the Court is not whether the plaintiff will ultimately prevail; rather, it is whether he can prove any set of facts in support of his claims that would entitle him to relief. Hishon v. King Spalding, 467 U.S. 69, 73 (1984). "Although the Federal Rules of Civil Procedure do not require a claimant to set forth an intricately detailed description of the asserted basis for relief, they do require that the pleadings give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Baldwin County Welcome Center v. Brown, 466 U.S. 147, 150 n. 3 (1984) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

Therefore, in deciding a motion to dismiss, a court should look to the face of the complaint and decide whether, taking all of the allegations of fact as true and construing them in a light most favorable to the nonmovant, plaintiff's allegations state a cognizable legal claim.Markowitz v. Northeast Land Co., 906 F.2d at 103.

B. Motion to Stay Proceedings and Compel Arbitration

Defendants support their motion to dismiss and compel arbitration by citing to the FAA, Seus v. Nuveen Co., Inc., 146 F.3d 175 (3d Cir. 1998), and Circuit City Stores, Inc. v. Adams, ___ U.S. ___, 121 S.Ct. 1302, 149 L.Ed.2d 342 (2001), and arguing that such authority compels that plaintiff's claim be subjected to binding arbitration, rather than litigation in federal, or any other, court.

In Circuit City Stores, the Supreme Court majority held that the Federal Arbitration Act requires enforcement of contractual arbitration agreements in all employment categories except for a narrow class of seamen and other transportation workers, not applicable here, which are specifically exempt by Section 1. Id. at 121 S.Ct. at 1311. Thus, there is no statutory restriction upon the enforceability of an arbitration agreement between employer and employee which waives the right to proceed by jury trial to enforce respective rights and contemplates final, binding arbitration as the exclusive remedy for disputes falling within the scope of the arbitration agreement. The issue in the present case is whether the parties have entered into such an arbitration agreement.

Plaintiff contests that she knowingly and voluntarily assented to the FTP arbitration agreement as detailed in the handbook, thereby waiving her right to seek redress in a judicial forum. Plaintiff does not dispute that she acknowledged receipt of the handbook or that it included, among other things, the section outlining Tenet's Open Door and FTP. Instead, plaintiff argues that because the signed offer of employment from Tenet did not mention arbitration, but instead only referred to the FTP process as being incorporated into the offer, she did not agree to the arbitration clause and voluntarily and knowingly waive her right to a jury trial. Defendants challenge the heightened knowing and voluntary standard and, quoting Seus, assert that "nothing short of a showing of fraud, duress, mistake or some other ground recognized by the law applicable to contracts generally would have excused the district court from enforcing [an arbitration] agreement."

1. The Federal Arbitration Act

The FAA, 9 U.S.C. § 1 et seq., was enacted in 1925 with the intent to ensure that agreements to arbitrate claims would be enforceable to the same extent as other contracts. Section 2 of the FAA provides, in relevant part:

A written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy arising out of such contract . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for revocation of any contract.

9 U.S.C. § 2; Seus, 146 F.3d at 178. If a party to a binding arbitration agreement is sued in federal court on a claim within the scope of the agreement, that party is entitled under the FAA to a stay of the court proceeding pending arbitration, Section 3, and to an order compelling arbitration, Section 4. See Seus, 146 F.3d at 178-79. If all of the claims involved in the action are arbitrable, then a court may dismiss the federal action rather than staying it. See Seus, 146 F.3d at 179 (referencing Alford v. Dean Witter Reynolds, Inc., 975 F.2d 1161, 1164 (5th Cir. 1992) and Dancu v. Coopers Lybrand, 778 F. Supp. 832, 835 (E.D.Pa. 1991), aff'd, 972 F.2d 1330 (3d Cir. 1992)).

Section 3 reads:

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. . ..

Section 4 of the FAA reads:

A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States District Court which, save for such agreement, would have jurisdiction under Title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in a manner provided for in such agreement. . . . The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not an issue, the court shall make an order directing the parties to proceed with arbitration in accordance with the terms of the agreement.

(emphasis added).

In addressing a motion to compel arbitration, a court must determine 1) whether the parties agreed to arbitrate; 2) the scope of that agreement; and 3) whether Congress intended the asserted federal claims to be nonarbitrable. See Hooters of America, Inc. v. Phillips, 39 F. Supp.2d 582, 609-10 (D.S.C. 1998) (citing Genesco, Inc. v. T. Kakiuchi Co., 815 F.2d 840, 844 (2d Cir. 1987)). The parties disagree only on the first prong. Plaintiff does not claim that her FMLA claim was intended by Congress to be nonarbitrable, and the wording of the defendants' arbitration policy clearly defines the scope of the policy to include claims for wrongful termination, such as the one asserted here by plaintiff. The Court, therefore, must only determine whether plaintiff agreed to arbitrate all claims arising from her employment or the termination thereof when she accepted Tenet's offer of employment in November, 1998.

2. Whether there was an Agreement to Arbitrate

Plaintiff alleges that she did not agree to arbitrate employment claims when she accepted Tenet's offer of employment and asserts that she did not execute a knowing and voluntary waiver of her right to present her FMLA claim in a judicial forum when she signed the offer letter now presented by defendants. Defendants disagree and seek to compel arbitration based on the signed offer letter which references the FTP and handbook acknowledgment. In light of the relevant case law and facts, this Court finds that defendants have not met their burden of showing that an agreement to arbitrate was made.

When determining whether the parties in an action have agreed to arbitrate, state contract principles apply. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 1924, 131 L.Ed.2d 985, 993 (1995)[and cases cited therein]. This is so because "`a submission to arbitration is essentially a contract, and the parties are bound to the extent of that contract.'" Caruso v. Ravenswood Developers, Inc., 337 N.J. Super. 499, 505-06, 767 A.2d 979 (App.Div. 2001) (quotingLocal 462, Int'l Brotherhood of Teamsters v. Charles Schaefer Sons, Inc., 223 N.J. Super. 520, 525, 539 A.2d 295 (App.Div. 1988)). New Jersey courts, when considering arbitration clauses in the context of CEPA and LAD claims, have been careful to honor the parties' intentions as set forth in the language of their arbitration agreement.Quigley v. KPMG Peat Marwick, LLP, 330 N.J. Super. 252, 270, 749 A.2d 405 (App.Div. 2000). See also Alamo Rent A Car, Inc. v. Galarza, 306 N.J. Super. 384, 391-92, 703 A.2d 961 (App.Div. 1997) (holding arbitration agreement language insufficient to constitute a knowing and voluntary waiver of LAD rights). So, while the state favors liberally interpreting arbitration contracts, the scope of such agreements must be dependant on the agreement. Quigley, 330 N.J. Super. at 270-71 (citations omitted).

Whether the applicable state law contract principles derive from New Jersey (the forum) or Pennsylvania (the place of the making of the purported agreement), the relevant law does not conflict. See Aircraft Guar. Corp. v. Strato-Lift, Inc . , 103 F. Supp.2d 830, 835 (E.D.Pa. 2000) (noting that Pennsylvania law requires offer, acceptance, and consideration for the formation of a contract); Merrill Lynch, Pierce, Fenner Smith, Inc. v. Moose , 528 A.2d 1351, 1353 (Pa.Super. 1987) (holding that it is well settled under Pennsylvania law "that voluntary arbitration is a matter of contract, and absent an agreement between the parties to arbitrate their dispute, they cannot be compelled to arbitrate.")

Also, when analyzing an agreement to arbitrate which makes arbitration the exclusive remedy for the parties, courts should read the agreement in light of its effect on the person's right to sue. Quigley, 330 N.J. Super. at 270-71 (citing Marchak v. Claridge Commons, Inc., 134 N.J. 275, 282, 633 A.2d 531 (1993)). "`A clause depriving a citizen of access to the courts should clearly state its purpose,'" especially when the choice is to arbitrate disputes rather than litigate them. Id. This is to ensure that the parties know that by agreeing to arbitrate they are waiving their time-honored right to sue. Id. Therefore, waivers of statutory rights to sue, in favor of an agreement to arbitrate such claims, "`must be clearly and unmistakably established, and contractual language alleged to constitute a waiver will not be read expansively.'" Quigley, 330 N.J. Super. at 270-71 (quoting Red Bank Reg'l Educ. Ass'n v. Red Bank Reg'l High School Board of Educ., 78 N.J. 122, 140, 393 A.2d 267 (1978)). Finally, although arbitration clauses are liberally construed, courts have generally still applied the common law rule that ambiguous language should be construed against the drafting party. See Quigley, 330 N.J. Super. at 271 (citing Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 53, 115 S.Ct. 1212, 1214, 131 L.Ed.2d 76, 81-82 (1995)).

The language in the employment offer signed by plaintiff does not specifically mention a requirement that employment disputed be submitted to arbitration, and instead provides:

Your employment will be subject to Tenet's Open Door Policy and Fair Treatment Process ("FTP") as more fully described in the accompanying Attachment. The FTP and its provisions shall be deemed incorporated into this offer letter, a full copy of which you acknowledge has been made available in the Human Resources Department for your review.

(Scenna Certif., Ex. A.) The language of the signed Employee Acknowledgment Form Addendum is similarly vague, providing only that plaintiff "acknowlege[d] receipt of the employees handbook and agree[d] to abide by its terms. . . ." (Scenna Supplemental Certif., Ex. B.)

Although it appears that it was Tenet's policy to require a signed copy of the Employee Acknowledgment Form, two copies of which were in each employee handbook, no such signed form has been produced by defendants and plaintiff certifies that she does not recall signing any such document. (Pl.'s Opp. at 7 and Ex. C, Parker Certif., ¶ 5.) This language would have clearly and unambiguously detailed that by signing and agreeing to these terms, plaintiff would waive her right to a jury trial and instead submit her claims to final and binding arbitration. No signed copy of this document, however, has been produced to this Court. Indeed, plaintiff certifies that no signed copy exists, and there appears to be no dispute on this fact.

The language of the Employee Acknowledgment Form is, in relevant part, as follows:

. . .

In addition, I acknowledge that I have receive a copy of the Tenet Fair Treatment Process Brochure. I hereby voluntarily agree to use the Company's Fair Treatment Process brochure 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 binding arbitration will be the sole and exclusive remedy for any such claim or dispute against Tenet . . . 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. . ..

(Pl.'s Opp., Ex. C, Unsigned Copy of Employee Acknowledgment Form) (emphasis added).

Defendants rely almost exclusively on the Seus decision in support of their position that plaintiff, by signing an employee acknowledgment addendum and accepting the employment offer, waived her right to litigate her FMLA claim. Defendants properly cite Seus as holding that ordinary contract law applies to the analysis of arbitration contracts. That case, however, is distinguishable from the instant case because the plaintiff in Seus signed a Uniform Application for Securities Industry Registration (Form U-4) which contained the following language:

I agree to arbitrate any dispute, claim or controversy that may arise between me and my firm . . . that is required to be arbitrated under the rules, constitution, or by-laws of the [NASD].

Seus, 146 F.3d at 177. The Third Circuit disagreed with Seus's argument that a more detailed waiver was required, and reasoned that a higher voluntary and knowing standard, as argued by Seus, is only applicable when a court is evaluating the waiver of substantive, rather than procedural rights. Id. at 183-84. The Third Circuit went on to hold that "[n]othing short of a showing of fraud, duress, mistake or some other ground recognized by the law applicable to contracts generally would have excused the district court from enforcing Seus's agreement." Id. at 184.

Seus is easily distinguished from the instant case because the language contained in the contract signed by Seus specifically advised that claims would be arbitrated, whereas no such terms were contained in the employment offer or acknowledgment form signed by Ms. Parker. In Seus, the plaintiff read and signed the U-4 form which specifically and clearly detailed the waiver of procedural rights she was consenting to. Seus argued that the words in the U-4 Form were not sufficient to show an agreement to waive her procedural right to sue. The Third Circuit found that the words of the contract manifested the parties' intent to arbitrate such claims and to waive the right to trial remedies. In contrast, the documents plaintiff Parker signed did not state that she was waiving her right to a jury trial for covered claims, nor that she was agreeing to arbitrate anything, and instead indicated only that the employment offer was subject to the Open Door Policy and FTP, described in the lengthy employee handbook. While the court agrees with defendants' argument that Seus establishes that the waiver of procedural rights to jury trial in an arbitration agreement need not be "knowing and voluntary," the defendants nonetheless fail to establish that plaintiff manifested her intent to waive these procedural rights by accepting the employment offer.

The cases cited by plaintiff from other jurisdictions that address the handbook issue further support this conclusion. See Kummertz v. Tech Mold, Inc., 152 F.3d 1153 (9th Cir. 1988) (finding signed "Information Booklet Acknowledgment" insufficient to form agreement to arbitrate, where acknowledgment did not specifically refer to arbitration); Nelson v. Cyprus Bagdad Copper Corp., 119 F.3d 756 (9th Cir. 1997), cert. denied, 523 U.S. 1072 (1998) (finding acknowledgment of receipt of handbook and agreement to read same insufficient to form agreement to arbitrate); cf. Patterson v. Tenet Healthcare, Inc., 113 F.3d 832 (8th Cir. 1997) (finding Tenet acknowledgment form that advised employee of the mandatory and binding arbitration process was sufficient to create and agreement to arbitrate); Hooters of America v. Phillips, 39 F. Supp.2d 582 (D.S.C. 1998) (finding an agreement to arbitrate where Phillips signed two forms specifically detailing arbitration).

The Patterson case is particularly instructive since it involved a version of the Tenet handbook and Fair Treatment Procedure. Applying Missouri law to determine the initial question whether Tenet and Patterson agreed to arbitrate, the Eighth Circuit found that Tenet satisfied the traditional elements of offer, acceptance and consideration because Patterson signed and accepted the Acknowledgment Form, containing an explicit arbitration clause, which was separate from the other provisions of the handbook; this signed form, containing clear arbitration language, created an enforceable arbitration agreement. Patterson v. Tenet Healthcare, Inc., 113 F.3d at 834-35. In the present case, in contrast, plaintiff's employment agreement merely made reference to the Fair Treatment Process, without mention of "arbitration" or "final decision" or the scope covered by arbitration.

The Patterson/Tenet agreement, contained on the signed Acknowledgment Form, provided in relevant part, id . at 834-35:

I understand AMI [Tenet's predecessor] makes available arbitration for resolution of grievances. I also understand that as a condition of my employment and continued employment, I agree to submit any complaints to the published process and agree to abide by and accept the final decision of the arbitration panel as ultimate resolution of my complaint(s) for any and all events that arise out of employment or termination of employment.

The lack of a signed Employee Acknowledgment Form in this case being the only document containing a suitable waiver of jury trial and acceptance of mandatory arbitration is dispositive of this issue.

III. CONCLUSION

For the foregoing reasons, the Court will deny defendants' Rule 12(b)(6), Fed.R.Civ.P., motion to dismiss plaintiff's FMLA claim and will deny defendants' motion to compel binding arbitration of plaintiff's wrongful termination claim.

The accompanying Order is entered.

ORDER

This matter having come before the Court upon the motion of defendants Hahnemann University Hospital, Tenet Healthcare Corp., Tenet HealthSystem Hahnemann, LLC, Tenet Health Philadelphia, Inc. and John Does I to X, to dismiss plaintiff's FMLA claim; and the Court having considered the parties' submissions; and for the reasons expressed in an Opinion of today's date;

IT IS this day of June, 2001 hereby

ORDERED that defendants' motion to compel arbitration of plaintiff's FMLA claim pursuant to 9 U.S.C. § 4 and the terms of defendants "Fair Treatment Policy" be, and hereby is, DENIED ; and

IT IS FURTHER ORDERED that defendants' motion to dismiss plaintiff's FMLA claim for failure to state a claim pursuant to Rule 12(b)(6), Fed.R.Civ.P., be, and hereby is, DENIED .

Parker v. Hahnemann Univ. Hosp.

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Parker v. Hahnemann Univ. Hosp.

Parker v. Hahnemann Univ. Hosp.

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Parker v. Hahnemann Univ. Hosp.

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Parker v. Hahnemann Univ. Hosp.

Parker v. Hahnemann Univ. Hosp.

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