Wendy McMullen v. Meijer, Incorporated

*The Honorable Peter C. Economus, United States District Judge for
the Northern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0015A (6th Cir.)
File Name: 04a0015a.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
WENDY MCMULLEN,
Plaintiff-Appellant,
v.
MEIJER, INCORPORATED,
Defendant-Appellee.
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No. 01-1211
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 99-71206—Anna Diggs Taylor, District Judge.
Argued: February 7, 2003
Decided and Filed: January 14, 2004
Before: GILMAN and GIBBONS, Circuit Judges;
ECONOMUS, District Judge.*
_________________
COUNSEL
ARGUED: Patrick M. Kirby, Flint, Michigan, for Appellant.
Jeffrey Scott Rueble, ASSISTANT GENERAL COUNSEL,
2 McMullen v. Meijer, Inc. No. 01-1211
MEIJER, Grand Rapids, Michigan, for Appellee.
ON BRIEF: Patrick M. Kirby, Flint, Michigan, for
Appellant. Jeffrey Scott Rueble, ASSISTANT GENERAL
COUNSEL, MEIJER, Grand Rapids, Michigan, for Appellee.
_____________________
AMENDED OPINION
_____________________
PER CURIAM. Appellant Wendy McMullen brought this
action against her former employer, Meijer Inc., seeking a
declaratory judgment that her Title VII claims are not subject
to the mandatory pre-dispute arbitration agreement she signed
upon accepting employment with Meijer. Although
McMullen acknowledges that the terms of the arbitration
agreement cover her statutory employment discrimination
claims, she contends that the arbitration agreement is
unenforceable with regard to her Title VII claims because it
grants Meijer exclusive control over the pool of potential
arbitrators from which the arbitrator is selected.
After initially denying Meijer’s summary judgment motion,
the district court reconsidered and granted summary judgment
in favor of Meijer in light of a perceived change in controlling
case law. McMullen appeals the grant of summary judgment
in favor of Meijer and also the denial of her summary
judgment motion. We reverse both rulings because we find
that Meijer’s exclusive control over the pool of potential
arbitrators prevents McMullen from effectively vindicating
her statutory rights. However, we also find that an issue
remains as to whether the arbitrator-selection provision can be
severed from the rest of the arbitration agreement. Therefore,
we remand to the district court for further proceedings
consistent with this opinion.

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No. 01-1211 McMullen v. Meijer, Inc. 3
1The American Arbitration Association, a non-profit public service
organization, assists in the design of alternative dispute resolution systems
for corpo rations, unions, government agenc ies, law firms and the courts.
I.
In 1989, Meijer hired McMullen as a store detective at its
store in Flint, Michigan. McMullen faced discipline in 1998
for an incident involving her pursuit and confrontation of a
juvenile shoplifter in the store parking lot. Meijer offered
McMullen a choice between demotion with a 33% decrease
in salary, or outright termination. McMullen chose
termination and decided to challenge her discipline through
Meijer’s termination appeal procedure (TAP).
The terms of the TAP establish a two-step procedure
requiring binding arbitration of all disputes arising out of
termination of employment. The TAP expressly incorporates
the Employment Dispute Resolution Rules of the American
Arbitration Association (AAA).1 Further, the TAP
specifically asserts that:
This procedure is intended to be the sole and exclusive
remedy and forum for all claims arising out of or relating
to an eligible team member’s termination from
employment.
The decision and award of the arbitrator is final and
binding between the parties as to all claims arising out of
or relating to an [sic] team member’s termination from
employment which were or could have been raised at any
step in this procedure and judgment may be entered on
the award in any circuit court or other court of competent
jurisdiction.
Contemporaneous to hiring McMullen, Meijer had
provided her with a copy of an employee handbook
describing both the TAP and the company’s policy of
terminating employees only with “just cause.” McMullen had
4 McMullen v. Meijer, Inc. No. 01-1211
2At the time McM ullen initiated the TAP process, Meijer maintained
a standing panel of potential arbitrators that it used for every arbitration
in which it participated in the state of Michigan.
3As a member of Meijer’s standing panel of potential arbitrators in
Michigan, Daniel had served as the arbitrator in seven arbitrations
involving M eijer by the time M cM ullen initiated the TAP process.
then signed a form acknowledging receipt of the handbook
and assenting to the company’s policies and procedures.
Upon instituting termination appeal proceedings,
McMullen argued that her discharge had been motivated by
an intent to discriminate against her on the basis of her
gender. Meijer denied her appeal internally and informed her
that, “[i]f you would like to contest the results of this further
review, you must request an arbitration hearing . . . .”
Subsequently, McMullen signed and filed the necessary
paperwork to begin the arbitral process.
Once an arbitration hearing is requested, the TAP grants
Meijer the right to unilaterally select a pool of at least five
potential arbitrators, each of whom must be: (1) an attorney,
(2) unemployed by and unaffiliated with the company,
(3) generally recognized as a neutral and experienced labor
and employment arbitrator, and (4) listed on the rosters of the
Federal Mediation and Conciliation Service (FMCS) or the
AAA, as well as other arbitration rosters.2 Then, counsel for
the company and the aggrieved employee mutually select an
arbitrator from that pool by alternatively striking names until
only one remains. On August 20, 1998, counsel for
McMullen and Meijer, following this procedure, selected
arbitrator William Daniel to hear McMullen’s appeal.3
Several months later, and only one day prior to the
scheduled date of the arbitration hearing, McMullen filed this
declaratory judgment action in state court challenging the
fairness of the TAP’s arbitrator-selection process. Asserting
federal question jurisdiction, Meijer removed the action to the

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No. 01-1211 McMullen v. Meijer, Inc. 5
4The district judge’s decisions on the motions for summary judgment
consisted of brief oral rulings from the bench, rather than written
opinions. W ith regard to the propriety of issuing oral rulings on summary
judgment motions, unaccompanied by written findings, this court
previously has noted:
This reviewing court, and more importantly, the parties, are
much better se rved when, as is the custom in this circuit, the
district court prepares a written opinion explaining its ruling and
the reasoning, factual and legal, in support, especially when the
ruling disposes of the case in a final judgment.
Peck v. Bridgeport Machines, Inc., 237 F.3d 61 4, 617 (6th Cir. 2001).
This observation is equally appropriate here.
United States District Court for the Eastern District of
Michigan.
On December 13, 1999, Meijer brought a motion to compel
arbitration and for summary judgment. On March 23, 2000,
the district court denied both motions from the bench. The
court’s ruling indicated that the procedures used by Meijer to
select an arbitrator did not comport with the requisite level of
fairness for such mandatory-arbitration contracts to be
binding. In conjunction with its decision, the court criticized
the extent of control exercised by Meijer over the arbitral
panel. The court also stated, “I’m sorry that there were not
cross motions in the case. There weren’t, so we’ll still have
this case alive here.”
On September 21, 2000, McMullen moved for summary
judgment. On October 2, 2000, Meijer moved for
reconsideration of its earlier motions based on this court’s
intervening decision in Haskins v. Prudential Insurance
Company of America, 230 F.3d 231 (6th Cir. 2000). The
district court held a hearing on the motions on November 27,
2000, and subsequently denied McMullen’s motion for
summary judgment, granted Meijer’s motion for
reconsideration, and, upon reconsideration, granted Meijer’s
motions for summary judgment and to compel arbitration.4
6 McMullen v. Meijer, Inc. No. 01-1211
II.
The district court’s decision to grant Meijer’s motion for
summary judgment is reviewed de novo, Smith v. Ameritech,
129 F.3d 857, 863 (6th Cir. 1997), as is the district court’s
decision to grant Meijer’s motion to compel arbitration,
Wiepking v. Prudential-Bache Securities, Inc., 940 F.2d 996,
998 (6th Cir. 1991). Similarly, the district court’s decisions
regarding the existence of a valid arbitration agreement and
the arbitrability of a particular dispute are reviewed de novo.
Floss v. Ryan’s Family Steakhouses, Inc., 211 F.3d 306, 311
(6th Cir. 2000). A district court’s denial of summary
judgment is an interlocutory order that is not ordinarily
appealable, but when the appeal from a denial of summary
judgment is presented together with an appeal from a grant of
summary judgment, we have jurisdiction to review the denial.
Thomas v. United States, 166 F.3d 825, 828 (6th Cir. 1999).
When a district court denies a motion for summary judgment
because it determines that there exists a genuine issue of
material fact, we review the denial only for an abuse of
discretion. Garner v. Memphis Police Dep’t, 8 F.3d 358, 363
(6th Cir. 1993). When, however, the district court denies
summary judgment based solely upon legal grounds, we
review the denial de novo. Id. Because the district court
denied McMullen’s summary judgment motion solely upon
legal grounds, we review this denial de novo.
The Supreme Court has held that agreements to arbitrate
employment disputes as a condition of employment are
generally enforceable under the Federal Arbitration Act,
9 U.S.C. § 1 et seq. (FAA). Circuit City Stores, Inc. v.
Adams, 532 U.S. 105, 109 (2001). This court has consistently
upheld the validity of pre-dispute mandatory arbitration
agreements. Haskins, 230 F.3d at 239; Willis v. Dean Witter
Reynolds, Inc., 948 F.2d 305, 310 (6th Cir. 1991). It is well
settled that judicial protection of pre-dispute arbitral
agreements extends to agreements to arbitrate statutory
employment discrimination claims. Gilmer v.
Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991);

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No. 01-1211 McMullen v. Meijer, Inc. 7
Willis, 948 F.2d at 312. Arbitration of statutory claims is
appropriate because “[b]y agreeing to arbitrate a statutory
claim, a party does not forgo the substantive rights afforded
by the statute; it only submits to their resolution in an arbitral,
rather than a judicial, forum.” Gilmer, 500 U.S. at 26
(quoting Mitsubishi Motors Corp. v. Soler
Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985)).
Notwithstanding a general policy favoring such
agreements, there are circumstances under which courts will
not enforce pre-dispute mandatory arbitration agreements
with regard to statutory employment discrimination claims.
In Floss, we held that, “even if arbitration is generally a
suitable forum for resolving a particular statutory claim, the
specific arbitral forum provided under an arbitration
agreement must nevertheless allow for the effective
vindication of that claim.” Floss, 211 F.3d at 313. The
central issue in this case is whether Meijer’s exclusive control
over the pool of potential arbitrators renders the arbitral forum
so fundamentally unfair as to prevent McMullen from
effectively vindicating her statutory rights, thereby precluding
enforcement of the pre-dispute agreement to arbitrate the
statutory claims.
Before reaching this central issue, however, we must
address two preliminary arguments made by Meijer. First,
Meijer argues that, regardless of the viability of the pre-
dispute agreement, McMullen should be compelled to
arbitrate her claims because she voluntarily and knowingly
agreed to arbitration after the dispute had occurred. When
Meijer internally reviewed McMullen’s claim after her
termination, it issued a “results of review” statement on a
Meijer “Termination Appeal Form.” The form states that to
challenge the termination, an employee must request
arbitration. Part 3 of the form states, “I request that my case
be submitted to arbitration in accordance with the Company’s
Termination Appeal Procedure.” Beneath this statement, the
form is signed solely by Wendy McMullen.
8 McMullen v. Meijer, Inc. No. 01-1211
McMullen did not agree to waive any right to sue by
signing this form. The form was merely an administrative
step required to initiate the arbitration process that McMullen
agreed to upon her hire. The form itself does not constitute an
arbitration agreement because it contains no promise not to
sue on behalf of either party. Moreover, the form does not
constitute an enforceable agreement because it lacks
contractual consideration. It is an elemental tenet of
Michigan contract law, which applies here, that past
consideration cannot serve as legal consideration for a
subsequent promise. Shirey v. Camden, 22 N.W.2d 98, 102
(Mich. 1946). Meijer did not offer McMullen any new
consideration in return for signing the form, which Meijer did
not sign.
Meijer’s second preliminary argument is that our decision
in Haskins prevents us from considering whether a pre-
dispute arbitration agreement allows for the effective
vindication of statutory claims. Meijer notes that we decided
Haskins after we decided Floss. In Haskins, this court held
that “absent a showing of fraud, duress, mistake, or some
other ground upon which a contract may be voided, a court
must enforce a contractual agreement to arbitrate.” Haskins,
230 F.3d at 239. Meijer requests that we construe Haskins
narrowly, arguing that McMullen can only escape from her
agreement to arbitrate by showing “fraud, duress, or mistake.”
In other words, Meijer contends that McMullen cannot ask a
court to “inquire into the fairness of the terms of these
arbitration contracts and to void them because one of their
terms - the method of selecting the arbitrator - is allegedly
unfair to her.” The district court concurred with Meijer,
opining that “Haskins has substantially narrowed the grounds
on which one may challenge a contractual agreement to
arbitrate.” Consequently, the district court granted Meijer’s
motion for reconsideration.
The district court’s ruling, however, overstates the impact
of Haskins on the agreement signed by McMullen. In
Haskins, the plaintiff signed an agreement with a securities

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No. 01-1211 McMullen v. Meijer, Inc. 9
5The “effective vindication” test referenced in Floss derives from
Gilm er, where the Supreme Court proclaimed, “[S]o long as the
prospective litigant effectively may vindicate [his or her] statutory cause
of action in the arbitral forum, the statute will continue to serve bo th its
remedial and deterrent function.” Gilmer, 500 U.S. at 28 (quoting
Mitsubishi Motors Corp., 473 U.S. at 637).
6Although the Rem bert decision predated Haskins, it did not pred ate
Beauchamp v. Great West Life Assurance Co., 918 F.Supp. 1091 (E.D.
Mich. 1996), the underlying case on which Haskins rested its holding.
Indeed, the language in Haskins stating that “absent a showing of fraud,
duress, mistake or some other ground upon which a contract may be
dealers’ association binding him to arbitrate any disputes
arising with his employer. The plaintiff’s challenge to the
agreement focused on his ignorance as to the existence of the
mandatory arbitration agreement, rather than on any perceived
unfairness in the arbitration process. Haskins, 230 F.3d at
239-40. The Haskins court adopted a contracts-law approach
to determining the validity of the agreement, holding that,
despite plaintiff’s ignorance, the agreement was enforceable
absent fraud, mistake, duress, or another contractual ground
for challenge.
In arguing that McMullen can only escape arbitration by
showing fraud, mistake, or duress, Meijer ignores the
remaining portion of the holding in Haskins, where this court
made an allowance for “some other ground upon which a
contract may be voided.” Haskins, 230 F.3d at 239. This
language sufficiently encompasses the “effective vindication”
analysis prescribed by the United States Supreme Court and
endorsed by this circuit in Floss.5 Indeed, subsequent cases
have arrived at this precise conclusion, construing the Floss
“effective vindication” analysis as another ground on which
a mandatory arbitration agreement can be voided. See
Cooper v. MRM Inv. Co., 199 F.Supp.2d 771, 775 (M.D.
Tenn. 2002); French v. First Union Sec., Inc., 209 F. Supp.
2d 818, 826 (M.D. Tenn. 2002); Rembert v. Ryan’s
Steakhouse, 596 N.W.2d 208, 218 (Mich. Ct. App. 1999).6
10 McMullen v. Meijer, Inc. No. 01-1211
voided, a court must enforce a contractual agreement to arbitrate,” is
adopted from Beauchamp, 918 F.Supp. at 1098. Thus, the Rem bert
court’s conc lusion tha t Beauchamp permits a fairness challenge to an
arbitration agreement applies with equal force to Haskins.
For example, in Cooper, the court extensively discussed
Haskins in the course of assessing the validity of a pre-dispute
agreement to arbitrate signed by a restaurant employee. In so
doing, the court essentially divided the Haskins analysis into
two separate stages. First, it undertook the Haskins
contractual analysis that Meijer promotes in the instant appeal
as the only means for invalidating such an agreement.
Secondly, contrary to the position Meijer espouses, the court
held that:
Even if this Court found no contractual defenses to the
enforcement of the [arbitration agreement], Plaintiff’s
substantive rights are affected by the agreement. Courts
have recognized that, although arbitration agreements are
generally favored, they will not be enforced if they affect
an individual’s substantive rights. Gilmer, 500 U.S. at
28, 111 S.Ct. 1647. Where an individual is unable to
vindicate his or her rights because of an obstacle erected
by an arbitration agreement, the court may not enforce
that arbitration agreement.
Cooper, 199 F. Supp. 2d at 780-81.
Furthermore, even if Meijer’s interpretation of Haskins
were correct, Haskins has been superseded by our en banc
decision in Morrison v. Circuit City Stores, Inc., 317 F.3d 646
(6th Cir. 2003). As we held in Morrison, “[t]he Supreme
Court has made clear that statutory rights, such as those
created by Title VII, may be subject to mandatory arbitration
only if the arbitral forum permits the effective vindication of
those rights.” 317 F.3d at 658. “Under Gilmer, the arbitral
forum must provide litigants with an effective substitute for
the judicial forum. . . .” Id. at 659.

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No. 01-1211 McMullen v. Meijer, Inc. 11
Therefore, we must decide whether Meijer’s TAP provides
McMullen with an effective substitute for the judicial forum
to pursue her Title VII claims. The TAP adopted by Meijer
is commendably fair except in one important respect: it
grants Meijer unilateral control over the pool of potential
arbitrators.
McMullen relies heavily on Hooters of America v. Phillips,
173 F.3d 933 (4th Cir. 1999), to support her argument that
Meijer’s TAP is so unfair that it does not provide an effective
means of vindicating her Title VII rights. In Hooters, the
Fourth Circuit invalidated an arbitration agreement that it
found “so one-sided that [its] only possible purpose [was] to
undermine the neutrality of the proceeding.” Id. at 938. The
Hooters court stated, “By promulgating [a] system of warped
rules, Hooters so skewed the process in its favor that Phillips
has been denied arbitration in any meaningful sense of the
word.” Id. at 941.
Many of the arbitration procedures criticized by the Fourth
Circuit in Hooters were patently one-sided. For example, the
arbitration agreement at issue in Hooters required employees
to file a notice of the particulars of their claims, as well as a
list of all fact witnesses along with a summary of their
knowledge, while the company was required to do neither.
Hooters, 173 F.3d at 938-39. The company could expand the
scope of arbitration to any matter, but the employee could
only arbitrate matters asserted in the notice of claim. The
company, but not the employee, could create a record or
transcript of the proceeding. The company also retained the
sole right to cancel the arbitration agreement or bring suit in
court to vacate or modify the arbitration award. Finally, the
company could unilaterally modify the rules at any time
without notice to the employee, even in the middle of an
arbitration hearing. Id.
Moreover, the selection process in Hooters “[was] crafted
to ensure a biased decisionmaker.” Hooters, 173 F.3d at 938.
12 McMullen v. Meijer, Inc. No. 01-1211
The Hooters court described the selection procedure as
follows:
The employee and Hooters each select an arbitrator, and
the two arbitrators in turn select a third. Good enough,
except that the employee’s arbitrator and the third
arbitrator must be selected from a list of arbitrators
created exclusively by Hooters. This gives Hooters
control over the entire panel and places no limits
whatsoever on whom Hooters can put on the list. Under
the rules, Hooters is free to devise lists of partial
arbitrators who have existing relationships, financial or
familial, with Hooters and its management. In fact, the
rules do not even prohibit Hooters from placing its
managers themselves on the list.
Id. at 938-39.
In addition to Hooters, McMullen cites our opinion in Floss
in support of her argument that Meijer’s TAP should not be
enforced in this case. In Floss, this court invalidated an
arbitration agreement that gave a third-party arbitration
service, EDSI, complete discretion over the procedures and
rules to be used during arbitration hearings. Floss, 211 F.3d
at 310. Because EDSI could change those rules without
notice, and without the consent of the claimant, we held that
the agreement to arbitrate lacked consideration and mutuality
of obligation. Id. at 315-16.
Our opinion in Floss also criticized, albeit in dicta, the
fairness of EDSI’s arbitrator-selection process. Under EDSI’s
rules, three “adjudicators” were selected from three separate
selection pools to preside over the arbitration hearing. The
first of these pools consisted of supervisors and managers
from another EDSI signatory company; the second consisted
of employees from another signatory; and the third contained
attorneys, retired judges, and other “competent professional
persons.” Id. at 313-14 n.7. As described by the Floss court:

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No. 01-1211 McMullen v. Meijer, Inc. 13
The selection process begins with EDSI furnishing both
parties a list of potential adjudicators organized
according to each selection pool. Information regarding
each adjudicator’s recent employment history and related
biographical information is provided to the parties along
with this list. The parties may then move to strike any
adjudicator for cause. Following the removal of any
adjudicators for cause, the parties each strike a name
from the list until only one name remains from each
selection pool.
Id.
Although this process appears facially reasonable, we
expressed our “serious reservations as to whether the arbitral
forum provided under the current version of the EDSI Rules
and Procedures is suitable for the resolution of statutory
claims.” Id. at 314. Specifically, we observed that “the
neutrality of the forum is far from clear in light of the
uncertain relationship between [the employer] and EDSI.” Id.
The record did not reflect whether EDSI, in contrast to the
AAA, was a for-profit entity, but we questioned whether an
alleged financial relationship between the employer company
and EDSI, compounded by the latter’s pecuniary interest in
retaining its arbitration service contract, might foster bias in
favor of the employer client. Most significantly to the present
case, we found in Floss that “[i]n light of EDSI’s role in
determining the pool of potential arbitrators, any such bias
would render the arbitral forum fundamentally unfair.” Id.
(citing Cole v. Burns Int’l Sec. Servs., 105 F.3d 1465, 1482
(D.C. Cir. 1997) (“At a minimum, statutory rights include
both a substantive protection and access to a neutral forum in
which to enforce those protections.”)).
Meijer’s TAP is plainly more even-handed than the
arbitration agreement at issue in Hooters, which allowed for
unfettered employer control over the potential arbitral panel
and contained a myriad of unilaterally biased clauses and
rules, giving Hooters an advantage in every aspect of the
14 McMullen v. Meijer, Inc. No. 01-1211
arbitration. But the arbitrator-selection process provided for
under Meijer’s TAP is less fair than the arbitrator-selection
process described in Floss as “fundamentally unfair.” Id. In
Floss, a third-party company had exclusive control over the
pool of potential arbitrators, while in the present case the
employer has exclusive control over the selection pool. The
Floss court was concerned that the company that selected the
pool of potential arbitrators might be biased in favor of the
employer, while here the company that selects the pool of
potential arbitrators is the employer.
The type of control exercised by Meijer over the potential
arbitrators is analogous to the “exclusive[] . . . control over
the entire panel” exercised by the employer in Hooters and
rejected by the Fourth Circuit. Hooters, 173 F.3d at 939.
Furthermore, the arbitrator-selection procedure used by
Meijer allows it to create the type of symbiotic relationship
with its arbitrators that we feared would promulgate bias in
Floss. Floss, 211 F.3d at 314. The risk of bias inherent in
Meijer’s procedure is demonstrated by the fact that Meijer
uses the same panel of five to seven arbitrators in each
arbitration hearing in which it participates in the state of
Michigan. We find Meijer’s exclusive control over the pool
of potential arbitrators particularly problematic because
Meijer could easily have adopted a procedure in which an
unbiased third-party, such as the AAA or FMCS, selected the
pool of potential arbitrators.
Meijer argues that the bias which McMullen fears will
manifest itself during her arbitration hearing is, at this point,
merely potential bias. This is not an insignificant argument.
The Supreme Court, when presented with an allegation of
hypothetical bias, “decline[d] to indulge the presumption that
the parties and arbitral body conducting a proceeding will be
unable or unwilling to retain competent, conscientious and
impartial arbitrators.” Gilmer, 500 U.S. at 30 (quoting
Mitsubishi, 473 U.S. at 634). McMullen has not asserted that
the particular arbitrator selected to hear her claim is biased

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No. 01-1211 McMullen v. Meijer, Inc. 15
7Meijer also argues that Gilmer clearly establishes that the preferred
method of challenging allegations of bias is to pursue the underlying
claims through the arbitration process and then seek review only “[w]here
there was evident partiality or corruption in the arbitrators.” Gilmer, 500
U.S. at 30 (quoting 9 U.S.C. § 10(b)). W hile this is true for allegations of
potential or hypothetical bias among the arb itrators, it do es not apply to
an allegation, as is pre sent here, that the arbitrato r-selection process is
fundamentally unfair. The Hooters court and the Floss court both
recognized that procedural unfairness inherent in an arbitration agreement
may be challenged before the arb itration. When the proce ss used to select
the arbitrator is fundamentally unfair, as in this case, the arbitral forum is
not an effective substitute for a jud icial forum , and the re is no need to
present separate evidence of bias or corruption in the particular arbitrator
selected.
against her or that his arbitration decisions in the past have
unreasonably favored Meijer.
McMullen’s complaint here, however, goes beyond an
allegation of a potentially biased arbitrator because McMullen
cites a lack of fairness inherent in the arbitrator-selection
process. The Supreme Court in Gilmer recognized that fair
and impartial “arbitration rules . . . provide protections against
biased panels.” Id. Meijer’s TAP contains many of the rules
acclaimed by Gilmer for their ability to guard against
potential arbitral bias, but unlike the rules considered in
Gilmer, Meijer’s TAP grants one party to the arbitration
unilateral control over the pool of potential arbitrators. This
procedure prevents Meijer’s TAP from being an effective
substitute for a judicial forum because it inherently lacks
neutrality.7
Our conclusion that Meijer’s TAP is not an effective
substitute for a judicial forum dictates that McMullen’s Title
VII claims are not subject to the TAP arbitrator-selection
provision. The question remains whether Meijer’s TAP is
thus unenforceable in its entirety or whether the selection
procedure can be severed and replaced with an appropriate
equitable process.
16 McMullen v. Meijer, Inc. No. 01-1211
The parties’ appellate briefs do not address the issue of
whether invalidation of the arbitrator-selection provision
renders the TAP unenforceable in its entirety. Meijer raised
the issue in a petition for rehearing filed after this court’s
original opinion declared the entire agreement unenforceable,
and McMullen has responded to the petition. Meijer
concedes that the TAP lacks a severability clause. It argues,
however, that the parties’ intent governs the issue of
severability and urges us to find that the TAP’s incorporation
of the Employment Dispute Rules of the AAA evidences an
intent to have an arbitrator selected in accord with the AAA’s
rule providing for selection of an arbitrator from its list when
the parties’ agreement does not include an arbitrator-selection
method. Alternatively, it urges us to direct the district court
to appoint an arbitrator in accord with the Federal Arbitration
Act (FAA) procedure specified in 9 U.S.C. § 5. Finally,
Meijer relies on Chattanooga Mailers’ Union, No. 92 v.
Chattanooga News-Free Press Co., 524 F.2d 1305 (6th Cir.
1975) (abrogation on other grounds recognized by
Bacashihua v. United States Postal Serv., 859 F.2d 402, 404
(6th Cir. 1988)), in which this court enforced an arbitration
provision included in a collective bargaining agreement,
despite the agreement’s inclusion of an allegedly illegal
closed-shop provision and the absence of a severability
clause, and determined that utilization of the arbitrator-
selection procedure of § 5 was appropriate, given the fact that
the procedure specified in the parties’ agreement was
unworkable at the time.
McMullen responds that the TAP’s specific exclusion of
AAA administration of any arbitration under the TAP negates
any inference that the parties intended application of AAA’s
arbitrator selection rule. She also asserts that Chattanooga
Mailers’ Union is factually dissimilar to this case. She cites
NLRB v. Rockaway News Supply Co., 375 U.S. 71 (1953), and
Michigan case law, which in her view set forth a rule that,
even when a severability clause is present, the agreement is
unenforceable in its entirety when the invalidated provision
is central to the agreement or “so interwoven with all of its

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No. 01-1211 McMullen v. Meijer, Inc. 17
terms that it must stand or fall as an entirety.” Id. at 78. The
arbitrator-selection provision is so central, in her view, that its
invalidation requires invalidation of the entire agreement.
In determining whether the TAP should be enforced absent
the invalid arbitrator-selection mechanism and, if it should,
how to select an arbitrator, the parties’ intent is a primary
issue. See generally Morrison, 317 F.3d at 676-77
(interpreting arbitration contract provision as manifesting
parties’ intent to sever invalid terms when construction
unclear under state law, given Supreme Court precedent
requiring resolution of doubt in favor of arbitration); Great
Earth Cos. v. Simons, 288 F.3d 878, 890-91 (6th Cir. 2002)
(finding clause requiring arbitration in New York severable
from remainder of arbitration agreement based on parties’
intent); Chattanooga Mailers’ Union, 524 F.2d at 1315
(requiring arbitration consistent with parties’ intent although
arbitration procedure they selected was unworkable); Brucker
v. McKinlay Transp., Inc., 557 N.W.2d 536, 541 (Mich. 1997)
(refusing to invalidate entire arbitration agreement containing
invalid provision when parties stipulated to arbitration rules);
Samuel D. Begola Servs., Inc. v. Wild Bros., 534 N.W.2d 217,
220 (Mich. Ct. App. 1995) (noting that in determining
severability “the primary consideration is the intention of the
parties” and finding attorney fee provision severable from
rescinded purchase agreements). Yet, in this context, intent
is not the only consideration. Federal policy favoring
arbitration may figure into the analysis, see Morrison, 317
F.3d at 675, 679-80, as may the interplay between state law
and that federal policy, see id. In addition, as Morrison
indicates, reliance on Chattanooga Mailers’ Union is still
appropriate in cases concerning the severability of arbitration
contract provisions. 317 F.3d at 678 n.22.
Here, the parties did not raise any factual issues involving
their intent before the district court and, indeed, did not
address the legal issues surrounding severability at any time
until Meijer’s petition for rehearing was filed. Under these
circumstances, we find it appropriate to remand to the district
18 McMullen v. Meijer, Inc. No. 01-1211
court so that it can determine in the first instance, after full
briefing and development of any necessary additional record,
whether the TAP can be enforced without the impermissible
arbitrator-selection provision. If the district court decides that
the remainder of the agreement can be enforced, it will also
have to determine how an arbitrator should be selected.
III.
For all of these reasons, we reverse the district court’s grant
of summary judgment to Meijer and the district court’s denial
of summary judgment to McMullen. We remand the case to
the district court for further proceedings consistent with this
opinion.

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