                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                      ___________

                                      No. 00-1887
                                      ___________

Kathy Lyster,                               *
                                            *
             Appellee,                      *
                                            *   Appeal from the United States
      v.                                    *   District Court for the Western
                                            *   District of Missouri
Ryan’s Family Steak Houses, Inc.,           *
                                            *
             Appellant.                     *

                                      ___________

                              Submitted: January 8, 2001
                              Filed:   February 8, 2001
                                     ___________

Before WOLLMAN, Chief Judge, BYE, Circuit Judge, and JONES1, District Judge.
                             ___________

JONES, District Judge.

       Kathy Lyster filed this action alleging unlawful sexual harassment against her
former employer, Ryan’s Family Steak Houses, Inc. Lyster signed an arbitration
agreement relating to her employment with Steak House. Steak House appeals from
the district court’s denial of its petition to compel arbitration and motion to dismiss, or
alternatively, to stay the proceedings. The district court held Lyster’s arbitration

      1
        The Honorable John B. Jones, United States District Judge, United States
District Court for the District of South Dakota, sitting by designation.
agreement did not require arbitration of claims that were filed after the termination of
the arbitration agreement. We reverse.

                                I. BACKGROUND
       Lyster applied for employment with Steak House on March 5, 1998. At the time
Lyster submitted her application, she signed a Job Application Agreement to
Arbitration of Employment-Related Disputes (“Agreement”) with Employment Dispute
Services, Inc. (“EDSI”) which provided that Lyster would submit any employment-
related dispute with Steak House to arbitration. Steak House was named as a third-
party beneficiary of the Agreement. Lyster submitted her claim of sexual harassment
to the Equal Employment Opportunity Commission (“EEOC”) and the Missouri
Commission on Human Rights (“MCHR”) and received a right-to-sue letter.

       The district court concluded under the Agreement Lyster was required to
arbitrate her claim only if she filed her claim with the EEOC and the MCHR before she
was terminated. If Lyster was terminated prior to filing her claim, the district court
concluded the Agreement would be unenforceable because the Agreement terminated
when her employment with Steak House ended. Because Steak House did not provide
sufficient information to the district court regarding the timing of Lyster’s termination
in relation to the filing of her claim with the EEOC and the MCHR, the district court
denied Steak House’s petition to compel arbitration and motion to dismiss, or
alternatively, to stay the proceedings.

       Steak House appeals on the grounds that the Agreement requires Lyster’s
employment-related claims against it be arbitrated even if the Agreement has terminated
since the date of the claim. Lyster contends the Agreement specifically excluded all
EEOC matters from arbitration and Lyster did not agree to arbitrate her Title VII
claims. Lyster further asserts her claim and cause of action for sexual harassment did
not accrue until EEOC gave a right to sue, which occurred after the Agreement


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terminated. Finally, Lyster argues the Agreement is an unconscionable adhesion
contract.

                                    II. DECISION
       Where the district court has determined the arbitrability of a dispute based on
contract interpretation, we review the decision de novo. PCS Nitrogen Fertilizer, L.P.
v. Christy Refractories, L.L.C., 225 F.3d 974, 978 (8th Cir. 2000). If the district court’s
order concerning arbitrability is based on factual findings, we review such findings for
clear error. Id. The order denying Steak House’s petition to compel arbitration and
motion to dismiss, or alternatively, to stay the proceedings is based solely on contract
interpretation and, therefore, we review the district court’s decision de novo.

        A dispute must be submitted to arbitration if there is a valid agreement to
arbitrate and the dispute falls within the scope of that agreement. Telectronics Pacing
Systems, Inc. v. Guidant Corp., 143 F.3d 428, 433 (8th Cir. 1998); Dean Witter
Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985) (holding the Federal Arbitration Act
mandates that courts shall direct parties to arbitration on issues to which a valid
arbitration agreement has been signed). The Federal Arbitration Act (FAA), 9 U.S.C.
§ 1 et seq., declares a “liberal federal policy favoring arbitration agreements.” Moses
H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983) (citing 9
U.S.C. § 2). The FAA establishes that “as a matter of federal law, any doubts
concerning the scope of arbitrable issues should be resolved in favor of arbitration,
whether the problem at hand is the construction of the contract language itself or an
allegation of waiver, delay, or a like defense to arbitrability.” Id.; see Barker v. Golf
U.S.A., Inc., 154 F.3d 788, 793 (8th Cir. 1998), cert. denied, 525 U.S. 1068 (1999).
Generally, “there is a presumption of arbitrability in the sense that ‘[a]n order to
arbitrate the particular grievance should not be denied unless it may be said with
positive assurance that the arbitration clause is not susceptible of an interpretation that
covers the asserted dispute.’” AT & T Tech., Inc. v. Communications Workers of
Am., 475 U.S. 643, 650 (1986) (quoting Steelworkers v. Warrior & Gulf Navigation

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Co., 363 U.S. 574, 582-83 (1960)). However, a party who has not agreed to arbitrate
a dispute cannot be forced to do so. AT & T Tech., 475 U.S. at 648.

       Lyster does not challenge the district court’s conclusion that the Agreement is
governed by the FAA as an agreement that evidences a transaction involving commerce
pursuant to Section 2 of the FAA, 9 U.S.C. § 2. The Supreme Court has made clear
that “statutory claims may be the subject of an arbitration agreement, enforceable
pursuant to the FAA.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26
(1991). More specifically, we held Title VII claims are subject to individual
consensual agreements to arbitrate. Patterson v. Tenet Healthcare, Inc., 113 F.3d 832,
837-38 (8th Cir. 1997). The Supreme Court recognized that “[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.”
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985);
see Gilmer, 500 U.S. at 26 (same).

       State contract law governs whether an arbitration agreement is valid. Barker,
154 F.3d at 791. Pursuant to Missouri law, “[t]he primary rule in the interpretation of
a contract is to ascertain the intention of the parties and to give effect to that intention.”
Speedie Food Mart, Inc. v. Taylor, 809 S.W.2d 126, 129 (Mo. Ct. App. 1991). A
court may evaluate extrinsic evidence to ascertain the parties’ intention only if the
contract is unclear and ambiguous. Id.; J.E. Hathman, Inc. v. Sigma Alpha Epsilon
Club, 491 S.W.2d 261, 264 (Mo. 1973). The test for determining if an ambiguity exists
in a written contract is “whether the disputed language, in the context of the entire
agreement, is reasonably susceptible of more than one construction giving the words
their plain meaning as understood by a reasonable average person.” Speedie Food
Mart, 809 S.W.2d at 129.

       The Agreement signed by Lyster included the following provisions:


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The purpose of this agreement is to provide You and the Company a
forum in which claims or disputes with the Company and any other
signatories may be resolved by arbitration rather than litigation. This
Agreement does not restrict you from filing a claim or charge with any
state or federal agency, for example, Equal Employment Opportunity
Commission, state unemployment agency, state workers’ compensation
commission, where applicable. Rather, the Agreement applies only to
State or Federal court proceedings.

A. Acceptance of EDSI Agreement
Important aspects of Your acceptance of this Agreement are: ...
2. You retain the right to file a claim or charge with any State or Federal
agency that would otherwise handle Your claim or charge;
3. Except as to claims or charges handled within a State or Federal
agency, You and the Company agree to use EDSI to resolve legal claims
concerning You that either party would otherwise bring in State or
Federal court; ....

B. Agreement
1. Any employment-related dispute between the Company, Me, and/or
other signatories which would otherwise be brought in State or Federal
court will be brought ONLY in the EDSI arbitration forum and under
EDSI Rules and Procedures, as modified or amended from time to time.
....
2. ....
        A. Except as to claims or charges actually handled within a State
        or Federal agency, any and all disputes I may have with the
        Company, or in that company, its supervisors, managers or other
        agents may have with Me which would otherwise be decided in
        court, shall be resolved only through arbitration in the EDSI forum
        and NOT THROUGH LITIGATION IN STATE OR FEDERAL
        COURT. ....
        E. I absolutely must use the EDSI forum for any and all
        employment-related disputes and/or claims and/or related tort
        claims I may have against the Company and all other signatories to
        this Agreement which would otherwise be brought in court, even


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             if the Agreement has been terminated since the date of the claim.
             ....
             G. My Agreement shall continue for the period of My employment
             with the Company unless mutually terminated in writing by EDSI
             and Me.

The “Company” referred to in the Agreement is the Steak House.

      Lyster contends the language in the Agreement relating to claims filed with the
EEOC specifically excluded all EEOC matters from arbitration. We disagree.
Although the Agreement permits Lyster to participate in state and federal administrative
proceedings, the Agreement specifically states any claim that would otherwise be
pursued in state or federal court must be pursued in an arbitral forum.

       Although the Agreement with EDSI terminated when Lyster’s employment with
Steak House ended, the Agreement clearly states in section B.2.E. that Lyster’s
employment-related claims shall be arbitrated even if the Agreement is terminated after
the date of her claim. Considering the Agreement as a whole, it is clear and
unambiguous that Lyster agreed any employment-related claims she had against Steak
House arising from and during her employment with Steak House, which would
otherwise be brought in state or federal court, would be arbitrated. The plain meaning
of the language in the Agreement does not require that before any claims are subject
to arbitration they must be filed with the EEOC or the MCHR. Additionally, the
Agreement does not exclude from arbitration claims pursued with the EEOC for which
Lyster had not received a right-to-sue letter prior to her termination by Steak House.
Pursuant to the Agreement, Lyster’s Title VII claim of sexual harassment by one of
Steak House’s supervisors, which arose during Lyster’s employment with Steak House,
must be pursued in an arbitral, rather than a judicial, forum.

      Lyster’s final argument, that the Agreement is an unconscionable adhesion
contract, lacks merit. Pursuant to Missouri law, “[a] contract is substantively

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unconscionable if there is undue harshness in the terms of the contract. Or, as more
colorfully stated, an unconscionable contract is one, such as no man in his senses and
not under delusion would make, on the one hand, and as no honest and fair man would
accept on the other, ....” Killion v. Bank Midwest, N.A., 987 S.W.2d 801, 810 (Mo.
Ct. App. 1998) (internal quotation marks and citations omitted). We recognized the
potential that substantial arbitration fees may make an arbitration agreement
unconscionable in Dobbins v. Hawk’s Enterprises, 198 F.3d 715, 717 (8th Cir. 1999).
However, Lyster has not established on the record before us that undue harshness exists
in the terms of the Agreement in light of Missouri law governing unconscionability.
See Green Tree Financial Corp.-Alabama v. Randolph, 121 S.Ct. 513, 522 (2000)
(holding the party seeking to invalidate an arbitration agreement because of prohibitive
arbitration fees bears the burden of proof and the possibility of such party incurring
prohibitive costs is too speculative to invalidate an arbitration agreement where the
record reveals only that the agreement is silent on the subject of arbitration costs).

       Based upon the above discussion it is clear that Lyster executed a valid
arbitration agreement and her claim of unlawful sexual harassment against Steak House
falls within the scope of the Agreement. Therefore, Steak House is entitled to an order,
pursuant to Section 4 of the FAA, 9 U.S.C. § 4, compelling Lyster to pursue her sexual
harassment claim in an arbitral, rather than a judicial, forum. Lyster requests if we find
the FAA applicable to this case we enter an order requiring the arbitration be conducted
in Joplin, Missouri, the city in which Lyster was employed by Steak House. During
oral argument, counsel for Steak House stated the arbitration proceedings would be
conducted in Missouri, in the city where Lyster was employed. We reverse the district
court’s denial of Steak House’s petition to compel arbitration and stay proceedings.
We remand with directions to enter an order compelling arbitration in accordance with
the terms of the Agreement, pursuant to 9 U.S.C. § 4, and to enter an order staying the
proceedings pending resolution of the arbitration, pursuant to 9 U.S.C. § 3.




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A true copy.

  ATTEST:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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