       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 UNIVERSAL HEALTH SERVICES,                 )          No. 79086-2-1
 INC., a Washington corporation,            )
                                            )          DIVISION ONE
                      Appellant,            )
                                            )          UNPUBLISHED OPINION
               v.                           )
                                            )
 ALISHA LINGVEVICIUS,                       )
                                            )
                      Respondent.           )
                                            )          FILED: October 21, 2019

       HAZELRIGG-HERNANDEZ, J.     — Universal Health Services Inc. appeals the

denial of their motion to compel arbitration. The court did not enter findings or

explain the basis for the ruling in the order denying the motion. We are unable to

review the decision below without a sufficient record from the trial court. We

reverse and remand for an evidentiary hearing to resolve disputed facts and entry

of findings.


                                      FACTS

       Universal Health Services, Inc. (UHS) moved to compel arbitration in the

course of defending against litigation brought by Alisha Lingvevicius.           She

acknowledged in her response to UHS's motion that an evidentiary hearing is

usually required to resolve the "highly factually intensive analysis" of whether there

was a meeting of the minds and an agreement to arbitrate. UHS's reply to
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Lingvevicius's opposition to the motion to compel arbitration expressly requested

limited discovery and an evidentiary hearing if the court was not inclined to compel

arbitration. As no evidentiary hearing was held, and no findings entered, this court

has few settled facts before us. Much of the information set out below consists of

assertions of the parties extracted from briefing, many of which are disputed.

       In March 2013, Lingvevicius began employment as a licensed practical

nurse with UHS at their Schick Shadel Hospital (Hospital) in Burien, Washington.

UHS utilizes a third-party online management system called HealthStream for both

training and education. Each employee has a unique username and password to

access HealthStream. Lingvevicius asserts that there was only one computer

available for all of the employees to complete their ongoing training and it was not

connected to a printer. She further claimed that there was insufficient time to

complete the various training modules due to patient care demands and, as a

result, it was common for employees to either share log-in information and

complete modules for each other, or to share answers so that their co-workers

could "click through" modules as quickly as possible.

      The parties agreed that the Hospital rolled out a corporate dispute resolution

program, the Alternative Resolution of Conflicts Program (ARC) in October 2013.

During ARC's implementation, each employee was required to review and

acknowledge the ARC Agreement by participating in an online learning activity

titled, "Alternative Resolution of Conflicts—ARC Course," which could only be

accessed through HealthStream. The ARC training program required employees

to go through four distinct steps: 1) open and review the ARC summary, 2) open




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and review the ARC Agreement, 3) open and review the ARC Acknowledgement,

and 4)complete the ARC Attestation. The ARC attestation can only be accessed

after the first three steps have been completed.

       The ARC Attestation contains two options for the employee. The first option

states,"I acknowledge this course contains the ARC Program materials, and I have

had an opportunity to review them." The second option reads "I acknowledge this

course contains the ARC Program materials, but have difficulty understanding or

accessing the information." If the participant selected the second option indicating

that they did not understand the material or had difficulty accessing it, a warning

appeared on the screen directing them to review the materials again and seek

additional information from Human Resources. It further advised the participant

that there is a 30 day timeframe to opt out of the program.

       It is undisputed that Lingvevicius's log-in information was used on the

computer at the Hospital on November 8, 2013 to complete some competency

courses, one of which was the ARC course. While Lingvevicius stated that she

does not specifically recall doing this, she did not expressly dispute that she was

the person who accessed the course.         Lingvevicius acknowledged that the

HealthStream records retain information about log-in, which modules were

accessed, and when that access occurred. She asserted that she routinely clicked

through the competencies on various modules as quickly as possible in order to

get back to tending to patients. She claimed to have not been able to access all

of the ARC documents. The records for the ARC course as to Lingvevicius reflect

that the second option was selected, which registered with a score of "0" as




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opposed to the first option which would have provided her with a score of "100."

Selecting this option provided her with the message,"Please go back and review

steps 1, 2, and 3. If you are still having difficulty accessing or understanding any

information, please. contact your Human Resources Department immediately as

you only have 30 days to decide whether to opt out of the ARC program."

       Lingvevicius did not contact human resources and alleged obstacles to

meeting with anyone from that department due to her schedule. She asserted that

Human Resource Manager, Elaine Oksendahl, only worked during the day while

Lingvevicius worked night shift. Lingvevicius claimed that she did express her

concerns to the Nursing Director, Christine Diego. It is undisputed that she never

submitted a completed Opt-Out form, and UHS alleged the result is that she was

subsequently enrolled in the ARC program in December 2013.

      The following are facts based on the Clerk's Papers designated below and

documented procedural history of this case. In January 2018, Lingvevicius filed

suit in King County Superior Court against UHS, bringing claims of 1) interference

with her right to family leave under chapter 49.78 RCW, 2) discrimination and

retaliation under the Washington Law Against Discrimination (WLAD), and 3)

retaliation under WLAD for her previous complaints for racial discrimination. In

March 2018, UHS removed this case to the U.S. District Court for the Western

District of Washington. UHS then moved to compel arbitration. Lingvevicius

moved for remand to state court which was granted by the federal judge, without

ruling on UHS's motion to compel arbitration.




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       After the case was remanded to King County Superior Court, UHS moved

to compel arbitration and submitted declarations with supporting documents.

Lingvevicius filed her opposition to the motion and her own supporting

declarations. UHS then filed a reply with additional materials. The documents

included in Lingvevicius's opposition motion and UHS's reply collectively included

references to and orders of the court in the case of Natalie Bailey v. Universal

Health Services, Inc.1 The Bailey case was on appeal at the time and has nearly

identical claims to Lingvevicius's case.

       One of the documents submitted to the trial court in this case was the Bailey

trial judge's ruling on a similar demand by UHS to compel arbitration and the

detailed findings of fact entered after an evidentiary hearing held on that matter,

which provided the basis for that ruling. Lingvevivius's response to UHS' motion

to compel asked the court to take judicial notice of the extensive findings and order

entered in the Bailey case. In September 2018, the trial court in Lingevivicius's

case issued an order denying UHS's motion to compel arbitration without holding

an evidentiary hearing, entering factual findings or otherwise explaining the basis

for the ruling. UHS timely appealed the order.


                                    DISCUSSION

       Though the parties agree that the Federal Arbitration Act2(FAA) governs,

we must first look to state law to determine whether an arbitration agreement exists

between them. RCW 7.04A.070 governs disputes between the parties as to



       1 King County Case No. 17-2-25919-5 KNT
      29   U.S.C. §§ 1-307(2012)


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whether an arbitration agreement exists. Marcus & Millichap Real Estate Inv.

Servs. of Seattle Inc. v. Yates, Wood & Macdonald, Inc., 192 Wn. App. 465, 472,

369 P.3d 503(2016)

       An appeal from an order denying a motion to compel arbitration is reviewed

de novo. Neuson v. Macv's Dept. Stores, Inc., 160 Wn. App 786, 792, 249 P.3d

1054 (2011). The burden of proving an agreement is not enforceable is on the

party seeking to avoid arbitration. McKee v. AT & T Corp., 164 Wn.2d 372, 383,

191 P.3d 845 (2008). If a party opposes a motion to compel arbitration, RCW

7.04A.070(1) clearly states that "the court shall proceed summarily to decide the

issue. Unless the court finds that there is no enforceable agreement to arbitrate,

it shall order the parties to arbitrate. If the court finds that there is no enforceable

agreement, it may not order the parties to arbitrate." General contract defenses

apply to invalidate arbitration agreements. McKee, 164 Wn.2d 383.

       Given that there are so few undisputed facts in the instant case, particularly

as to whether an agreement to arbitrate exists between the parties, findings from

the trial court are necessary for this court to properly engage in our analysis. Our

Supreme Court has cautioned that factual findings by the court are necessary

when disputes of fact exist. Adler v. Fred Lind Manor, 153 Wn.2d 331, 350, 103

P.3d 773 (2004). In Adler, the court recognized that the circumstances likely did

not warrant Adler's challenge of unconscionability regarding an arbitration

agreement. But the court held it could not rule on the matter without further factual

findings by the trial court when a dispute of material fact existed due to the parties




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offering a different version of what had occurred. Id. In Adler, the trial court granted

the motion to compel arbitration without holding a hearing. Id. at 340.

        UHS relies on Marcus & Millichap in support of their argument that an

evidentiary hearing is necessary when disputes of material fact exist. 192 Wn.App.

472. In Marcus & Millichap, this court addressed the proper procedure for

evaluating an arbitration agreement when the parties dispute its validity and relied

upon the current uniform arbitration act3 in finding the need for an evidentiary

hearing if dispute of material facts exist. Id. Analysis in that case included a review

of numerous other jurisdictions' procedures for a summary proceeding in such a

context. Id.

        We agree with UHS that Marcus & Millichap calls for such a hearing in this

case.     Conflicting assertions of the parties remain as to the circumstances

surrounding Lingvevicius's access to and understanding of the ARC agreement.

The agreement's enforceability hinges on determinations of fact by the trial court,

particularly since Lingvevicius raises the issue of procedural unconscionability.

We are unable to properly review the trial court's decision denying the motion to

compel arbitration due to the absence of factual findings regarding these critical

issues.

        Here, UHS expressly asked for limited discovery and an evidentiary hearing

and Lingvevicius agreed that the "highly factually intensive analysis" could require

one. This Division's recent opinion in Natalie Bailey v. Universal Health Services,

Inc. et al., the case referenced in Lingvevicius's pleadings at the trial court,



        3 Chapter 7.04A   RCW.


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highlights the utility of such hearings in this sort of litigation. No. 78365-3-1, slip

op.     (Wash.       Ct.      App.      Aug.       19,     2019)       (unpublished),

http://www.courts.wa.gov/opinions/pdf/783653.pdf In Bailey, this court relied upon

the extensive factual findings from the trial court after limited discovery and an

evidentiary hearing on a factually similar case.

       Questions of fact exist in the case before us regarding, at a minimum, the

following issues: 1) when Lingvevicius became aware of the ARC program and

under what circumstances; 2) whether Lingvevicius did in fact login and complete

the training herself(as opposed to a co-worker using her login credentials, as she

alleges occurred with regularity) and under what conditions; 3) whether

Lingvevicius understood the training and was aware of the opt-out requirement and

time period; 4) Lingvevicius's communication with Human Resources and her

supervisors about her inability to understand the ARC materials. Resolution of

these issues is essential before the ultimate question can be answered by the

court: whether Lingvevicius was bound by the ARC argreement. Given the

numerous issues of material fact that go directly to the question of whether an

enforceable agreement to arbitrate existed, limited discovery and an evidentiary

hearing were called for.

       When disputes exist as to the circumstances surrounding an agreement,

the reviewing court should remand to the trial court for additional findings. Adler,

153 Wn.2d 350. It is the trial court's role to determine the facts of a case by

weighing and evaluating evidence and making credibility determinations. Bland v.

Mentor,63 Wn.2d 150, 154, 385 P.2d 727(1963). "Thus the appellate court's role




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is limited to determining whether substantial evidence supports the trial court's

findings of fact." Endicott v. Saul, 142 Wn. App. 899, 910, 176 P.3d 560 (2008).

       This court cannot engage in proper review of the denial of UHS' motion to

compel arbitration without a sufficient record from the trial court as to the basis for

the challenged ruling. As such, we are unable to address the central issue of

whether the trial court erred in denying UHS's motion to compel arbitration. We

reverse and remand this case for limited discovery, an evidentiary hearing and

entry of findings.

       Reversed and remanded.




WE CONCUR:




6A,




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