COA 354587 KENISA BARKAI V VHS OF MICHIGAN INC Opinion - On Remand SCt - Per Curiam - Unpublished 9/24/2026

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
KENISA BARKAI,
Plaintiff-Appellee,
UNPUBLISHED
September 24, 2026
9:31 AM
v No. 354587
Wayne Circuit Court
VHS OF MICHIGAN, INC., doing business as
DETROIT MEDICAL CENTER,
LC No. 20-005513-CD
Defendant-Appellant.
JEFFREY EICHENLAUB, CATHERINE
GAUGHAN, SALAH HADWAN, ANTHONY
BONNETT, and MATTHEW MCLAUGHLIN,
Plaintiffs-Appellees,
v No. 355607
Wayne Circuit Court
VHS OF MICHIGAN, INC., doing business as
DETROIT MEDICAL CENTER, and TENET
HEALTHCARE, INC.,
LC No. 20-007330-CD
Defendants-Appellants.
ON REMAND
Before: LETICA, P.J., and M. J. KELLY and BAZZI, JJ.
PER CURIAM.
In our prior opinion in this consolidated employment action, we reversed the trial court’s
orders denying summary disposition and to compel arbitration in favor of defendant, VHS of
Michigan, Inc., doing business as Detroit Medical Center (DMC), in Docket No. 354587, and in
favor of defendants DMC and Tenet Healthcare, Inc., in Docket No. 355607. Plaintiffs, all former

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employees of DMC, filed an application for leave to appeal with our Supreme Court that was held
in abeyance. Ultimately, in lieu of granting leave to appeal, the Supreme Court vacated our prior
judgment and remanded the case to us for reconsideration in light of Rayford v American House
Roseville I, LLC, ___ Mich ___; ___ NW3d ___ (2025) (Docket No. 163989). See Barkai v VHS
of Mich, Inc, ___ Mich ___, ___; 33 NW3d 206 (2026) (Docket Nos. 354587; 355607). Because
the Rayford decision addressed the contractual shortening of limitations period, not arbitration
agreements, we again reverse the trial court’s orders denying defendants’ motions for summary
disposition and to compel arbitration and remand for entry of an order granting the motions and
compelling arbitration.
I. FACTS AND PROCEDURAL HISTORY
In our prior opinion, we set forth the following facts:
These cases arise out of the terminations of plaintiffs, who were all
employed at DMC’s Sinai-Grace Hospital in Detroit, Michigan. At one time or
another, each plaintiff agreed to the Fair Treatment Process (FTP). In June 2014,
Tenet revised the FTP and required all then-employed employees to undergo a
training on the updated FTP. As part of the training, the employees would
acknowledge the terms of the FTP and agree to abide by those terms. Jeffrey
Eichenlaub completed the training on June 17, 2014, and Catherine Gaughan
completed the training on July 26, 2014. The employees hired after June 2014, as
part of their pre-employment training, were asked to sign a document with two
acknowledgements: an acknowledgement for receipt of the employee handbook
and an acknowledgement for receipt and agreement to the FTP. Anthony Bonnett
signed the document on June 16, 2016, Matthew McLaughlin signed on July 24,
2017, and Salah Hadwan signed on November 27, 2017.
Tenet again revised the FTP in January 2019 and DMC’s employees were
required to complete an electronic assignment that automatically opened the revised
FTP. Completion of the assignment also required the employees to agree to the
revised FTP. McLaughlin completed the assignment on January 24, 2019,
Gaughan, on January 28, 2019, Eichenlaub, on January 31, 2019, Hadwan, on
February 4, 2019, and Bonnett, on February 10, 2019. On August 16, 2019, Kenisa
Barkai was offered a job at DMC. The offer of employment required Barkai to sign
the FTP, which she did on September 9, 2019.
Several provisions of the FTP are relevant to this appeal. Regarding the
FTP’s applicability and coverage:
The FTP applies to all employees, regardless of length of
service or status, and the agreement to arbitrate covers all disputes
relating to or arising out of an employee’s employment with the
Company or the termination of employment. The only disputes or
claims not covered by the FTP are those listed in the Exclusions
section below. Examples of the type of disputes or claims covered
by the FTP and the arbitration agreement include, but are not limited

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to, 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 of action recognized by local,
state or federal law or regulations. This is a mutual agreement to
arbitrate claims which means that both the employee and the
Company are bound to use the FTP process as the only means of
resolving employment-related disputes, and thereby agree to forego
any right they each may have had to a jury trial on issues covered by
the FTP. However, no remedies that otherwise would be available
to either party in a court of law will be forfeited by virtue of their
agreement to use and be bound by the FTP.
The FTP then describes the steps of the fair treatment process, with the first step
being an internal review followed by final and binding arbitration. As mentioned
in the applicability and coverage section, the FTP excludes certain issues from
arbitration:
Workers’ Compensation Claims, any claim involving the
construction or application of a benefit plan covered by ERISA, and
claims for unemployment benefits are excluded from the FTP. In
addition, any non-waivable statutory claims, which may include
claims within the jurisdiction of the National Labor Relations Board,
wage claims within the jurisdiction of a local or state labor
commissioner, or administrative agency charges before the Equal
Employment Opportunity Commission or similar local or state
agencies, are not subject to exclusive review under the FTP. This
means that employees may file such non-waivable statutory claims
with the appropriate agency that has jurisdiction over them if they
wish, regardless of whether they decide to use the FTP to resolve
them. However, if such agency completes its processing of an
employee’s claim and the employee decides to pursue further
remedies on such claims in a civil action against the Company, the
employee must use the FTP (although [the internal review] may be
skipped). In addition, the FTP does not apply to employees covered
by a collective bargaining agreement, unless otherwise agreed to by
such employees.
Finally, the FTP contained a number of sections under the heading “Other
Important Information,” including:
Applicable Law and Procedural Rules: The Federal
Arbitration Act, 9 U.S.C. § 1, et seq., will govern arbitrations under
the FTP. The applicable Employment Arbitration Rules of the AAA

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will govern the procedures to be used in such arbitrations, unless the
parties have agreed otherwise.
* * *
At-Will Employment: Nothing in the FTP shall be construed
to create a contract of employment, express or implied, nor does the
FTP in any way alter the at-will nature of the employment
relationship between the Company and its employees.
Modification to the FTP: The Company will not modify or
change the agreement between the Company and its employees to
use final and binding arbitration to resolve employment-related
disputes, without notifying and obtaining the consent of employees
to such changes. However, the Company may change or modify the
FTP procedures from time-to-time without advance notice and
without the consent of employees. To the extent permitted by
applicable law, your consent to any such modifications will be
implied by your continued employment after advance notice of any
such modifications.
Bonnett, McLaughlin, Hadwan, and Barkai also signed acknowledgement
documents that stated:
I acknowledge that I have reviewed the Fair Treatment
Process above. Except to the extent that any applicable collective
bargaining agreement provides otherwise, I hereby voluntarily agree
to use the Fair Treatment Process 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 as set forth above. I understand that final and binding
arbitration will be the sole and exclusive remedy for any such claims
or disputes that I may have against Tenet or its parent, subsidiary or
affiliated companies or entities, and each of its and/or their
employees, officers, directors or agents, and, that to the extent
permitted by law, I may not join any such claim or dispute with the
dispute of another employee in a class, collective, representative or
group action. Arbitration under the Fair Treatment Process is
limited to individual disputes, claims or controversies that a court of
law would be authorized or have jurisdiction over to grant relief, and
by agreeing to the use of 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. I also
agree that such arbitration will be conducted before an experienced
arbitrator chosen by me and the Company, and will be conducted
under the Federal Arbitration Act and the procedural rules of the

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American Arbitration Association (“AAA”) unless the Company
and I agree otherwise.
I further acknowledge that in exchange for my agreement to
arbitrate, the Company also agrees to submit all claims and disputes
it may have with me to final and binding arbitration . . . . I further
acknowledge that this mutual agreement to arbitrate may not be
modified or rescinded except in writing by both me and the
Company.
Plaintiffs were employed by DMC during the COVID-19 pandemic; Barkai,
Eichenlaub, Hadwan, and Bonnett were nurses, Guaghan was a clinical coordinator,
and McLaughlin was an emergency room technician. Each plaintiff had a
conversation with managers at DMC and expressed their concerns over the
hospital’s lack of personal protective equipment (PPE) and the patients’ conditions.
On March 17, 2020, Barkai “posted a 7-second video on social media
showing herself wearing PPE, including a mask, face shield, and gloves while
stating ‘I have my gloves, my hair covering, my mask, my gown and I’m read[y]
to rock and roll. I’m going in.’ ” The next day, Barkai was interviewed for the
local news and reiterated her concerns about patient and staff safety caused by the
shortage of PPE. On March 27, 2020, DMC terminated Barkai’s employment for
violating its social-media policy.
On April 14, 2020, a national news agency published a story with two
pictures depicting dead bodies in body bags “piled on top of each other . . . .” A
corporate officer for Tenet met with the remaining plaintiffs about the origin of the
photographs. Each plaintiff denied taking the photographs or sending them to the
news agency, but DMC terminated their employment.
In Docket No. 354587, Barkai filed a complaint against DMC alleging
retaliation in violation of The Whistleblowers’ Protection Act (WPA), MCL 15.369
et seq., and wrongful discharge in violation of public policy. In Docket No. 355607,
Eichenlaub, Gaughan, Hadwan, Bonnett, and McLaughlin filed a complaint
alleging retaliation in violation of the WPA against DMC, wrongful discharge in
violation of public policy against DMC, intentional or reckless infliction of
emotional distress against DMC, and conspiracy to intentionally or recklessly
inflict emotional distress against DMC and Tenet. In both cases, defendants filed
a motion for summary disposition under MCR 2.116(C)(7), arguing that the cases
should be dismissed because the FTP that each plaintiff had agreed to contained an
arbitration agreement. Plaintiffs denied that there was a valid arbitration agreement
and argued that even if the FTP had a valid arbitration agreement, the text of the
FTP did not require claims under the WPA to be arbitrated.
In both cases, the trial court denied defendants’ motions for summary
disposition. In Docket No. 354587, the trial court “disagree[d] that mandatory
arbitration must be compelled.” In Docket No. 355607, the trial court determined

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that the “employee handbook does not constitute a binding agreement to arbitrate
these claims.” This appeal followed. [Barkai v VHS of Mich, Inc, unpublished per
curiam opinion of the Court of Appeals, issued August 12, 2021 (Docket Nos.
354587; 355607), pp 1-5 (footnotes omitted).].
We concluded that plaintiffs’ claims were covered within the broad scope of the FTP’s arbitration
provisions, reversed the trial court’s denial of defendants’ motions for summary disposition and
remanded for entry of orders compelling arbitration. Id. at pp 7-13. On plaintiffs’ application for
leave to appeal, our Supreme Court ultimately vacated our prior judgment and remanded the case
to us for reconsideration in light of Rayford. See Barkai, ___ Mich at ___.
II. RAYFORD
We conclude that the application of Rayford does not alter our judgment that the trial court
erred in denying defendants’ motions for summary disposition.
In Rayford, the plaintiff, a certified nursing assistant, was hired by the defendant, a nursing
care facility, in February 2017. After being employed for about one week, the plaintiff signed an
acknowledgment that any claim or lawsuit arising from her employment must be filed within 180-
days of the employment action. Within a few months of her employment, the plaintiff purportedly
learned of inappropriate behavior between the defendant’s upper management and some
employees, resulting in preferential treatment. She claimed to report this impropriety to the
defendant’s human resources division and the state of Michigan. The plaintiff further alleged that
the defendant retaliated against her for the report, including causing her to be criminally charged
with filing a false report about another matter she had reported; however, the criminal charge was
ultimately dismissed. In April 2020, the plaintiff filed suit alleging violations of the Elliott-Larsen
Civil Rights Act, MCL 37.2101 et seq., wrongful discharge in violation of public policy, malicious
prosecution, and abuse of process. After the defendant moved for summary disposition premised
on the 180-day limitations period in the employment acknowledgment, the plaintiff asserted that
the acknowledgment was unenforceable as an unconscionable adhesion contract. The trial court
granted summary disposition in light of the clear and unambiguous language of the contractual
acknowledgment, requiring that suit be filed within six months, and this Court affirmed. Rayford,
___ Mich at ___, slip op at 2-5.
The Rayford Court applied the definition of an adhesion contract as “[a] standard-form
contract prepared by one party, to be signed by another party in a weaker position, usu. a consumer,
who must essentially either accede (adhere) to the terms or not have a contract at all.” Id. at ___,
slip at 18, 34 (quotation marks and citation omitted). Contracts in which the employee occupies a
weaker position than the employer deserve “close judicial scrutiny.” Id. at ___, slip op at 34. To
ascertain whether a shortened limitations period is reasonable, one must examine whether “(1) the
claimant has sufficient opportunity to investigate and file an action, (2) the time is not so short as
to work a practical abrogation of the right of action, and (3) the action is not barred before the loss
or damage can be ascertained.” Id. (quotation marks and citations omitted). Further, when a party
to a contract has little to no bargaining power, it may be deemed unconscionable, both procedurally
and substantively. Id. at ___, slip op at 37-39. When the record lacks development “to determine
the reasonableness of the shortened limitations period and whether the provision was
unconscionable,” a remand to the trial court is appropriate. Id. at ___, slip op at 33.

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In our consolidated case, the issue presented did not involve the reasonableness of a
shortened limitations period, but rather the application of an arbitration provision. This Court
recently addressed the application of Rayford in Johnson v Best Buy Co, Inc (On Remand), ___
Mich App ___, ___; ___ NW3d ___ (2025) (Docket No. 363807), slip op at 3, order directing oral
argument on application for leave to appeal ___ Mich ___, 33 NW3d 669 (2026). This Court
acknowledged that the facts and holding of Rayford had not been applied specifically to arbitration
provisions. But, on remand, the Johnson Court also recognized that principles relating to adhesion
and form contracts could nonetheless result in a reasonable agreement. Johnson, ___ Mich App
at___; slip op at 3-4. The Johnson panel concluded that public policy supported alternative
resolution and the language of an arbitration clause was reasonable when it applied to both parties,
adopted standard arbitration association rules, and addressed specific claims raised by any party.
Furthermore, this same criteria shows that an arbitration provision is not unconscionable. Id. at
___; slip op at 3-7. Similar to Johnson, our consolidated case involved standard arbitration rules,
applied to all parties, and addressed the provision language to determine the claims included,
indicating it remained enforceable. As already noted, on May 1, 2026, our Supreme Court
considered the application for leave to appeal in Johnson and directed its Clerk to schedule oral
argument on the application to address whether the adhesion contract analysis of Rayford was
applicable to the enforcement of the arbitration policy at issue and whether federal arbitration law
preempted the application of Rayford in light of the facts of the case. Johnson, 33 NW3d at 669.
We are bound by this Court’s published decision in Johnson. MCR 7.215(J)(1). Accordingly, we
again reverse the trial court’s orders denying defendants’ motion for summary disposition and to
compel arbitration and remand for entry of an order compelling arbitration.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Anica Letica
/s/ Michael J. Kelly
/s/ Mariam S. Bazzi

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