                   In the Missouri Court of Appeals
                           Eastern District

                                      DIVISION FIVE


KATHRYN JIMENEZ,                            )       No. ED101015 & ED101241
                                            )
       Petitioner/Respondent,               )       Appeal from the Circuit Court of the
                                            )       St. Louis County
vs.                                         )
                                            )       Honorable Michael T. Jamison
CINTAS CORPORATION, ET AL.,                 )
                                            )
       Respondent/Appellant.                )       Filed: January 13, 2015


                                      INTRODUCTION

       Cintas Corporation and its subsidiaries (“Cintas”), as well as its managers Timothy Baker

and Brian Fitzsimmons, (collectively “Defendants”) appeal from the trial court’s order denying

their motion to compel arbitration of the employment discrimination claims brought by Kathryn

Jimenez. Defendants contend the trial court erred in failing to compel arbitration of Jimenez’s

claims pursuant to a valid agreement, because there was sufficient consideration based upon: (1)

the parties’ mutual promises to arbitrate disputes arising out of Jimenez’s employment

relationship; and (2) Cintas’s offer to Jimenez of “new” or “future” at-will employment. Cintas

also contends the agreement to arbitrate was part of an enforceable contract based upon an offer

and acceptance, and the terms of that agreement were not unconscionable. We affirm.




                                                1
                      FACTUAL AND PROCEDURAL BACKGROUND

       In December 2011, Jimenez began working for Cintas as a Fire Service Technician. She

continued in this capacity until June 2012, when Cintas terminated her employment. On July 18,

2013, Jimenez filed a petition against Defendants in the Circuit Court of St. Louis County,

challenging her termination and alleging that during her employment she suffered discrimination

and harassment by Baker and Fitzsimmons, who acted in their capacity as managers for Cintas.

       On August 26, 2013, Defendants filed a motion to compel Jimenez to arbitrate her claims

against Cintas, attaching a document entitled “Missouri Employment Agreement for Sales,

Service and Marketing Personnel” (“Agreement”). The first page of the Agreement is dated

December 12, 2011, and contains Jimenez’s purported signature, as well as provisions invoking

the Federal Arbitration Act as the law by which the agreement “will be interpreted, governed and

enforced.”

       Section 8 of the Agreement, entitled “Exclusive Method of Resolving Disputes or

Differences,” states that disputes “between Employee and Employer concerning whether either

party at any time violated any duty, right, law, regulation, public policy, or provision of this

Agreement” that cannot be resolved in good faith, must be “resolved through impartial and

confidential arbitration.” Section 8 states that both Cintas and Jimenez must arbitrate any

unresolved “claims for damages, as well as reasonable costs and attorney’s fees, caused by [the

other party’s] violation of any provision of this Agreement or any law, regulation or public

policy.” It further provides:

       The rights and claims of Employee covered by this Section 8, including the
       arbitration provisions below, specifically include but are not limited to all of
       Employee’s rights or claims arising out of or in any way related to Employee’s
       employment with Employer, such as rights or claims arising under the Age
       Discrimination in Employment Act, as amended, Title VII of the Civil Rights Act
       of 1964, as amended (including amendments contained in the Civil Rights Act of

                                               2
       1991), the Americans With Disabilities Act, 42 U.S.C. § 1981, the Fair Labor
       Standards Act, the Employee Retirement Income Security Act, state anti-
       discrimination statutes, other state or local laws regarding employment, common
       law theories such as breach of express or implied contract, wrongful discharge[,]
       defamation, and negligent or intentional infliction of emotional distress. Excluded
       from the arbitration provisions below in this Section 8 are all unemployment
       benefit claims, workers’ compensation claims, claims for a declaratory judgment
       or injunctive relief concerning any provision of Section 4 of this Agreement, and
       claims not lawfully subject to arbitration, including charges or complaints filed
       with an administrative agency (but not litigation connected with any such charge
       or complaint). (Emphasis added).

       Consequently, the Agreement requires the arbitration of all claims, except those expressly

excluded. It excludes from the requirement to arbitrate all: “workers’ compensation claims,

unemployment benefits claims, claims for a declaratory judgment or injunctive relief concerning

any provision of Section 4 and claims not lawfully subject to arbitration . . . .”

       Section 4 is entitled “Employee’s Acknowledgement and Covenants.” The Section 4

claims exempted from arbitration relate to covenants binding solely upon Jimenez, and prohibit

her from disclosing confidential material and information belonging to Cintas, competing against

Cintas, and soliciting Cintas’s customers and employees (the “Non-Compete Provisions”).

Section 4 also contains a clause stating:

       Employer may apply to any court of competent jurisdiction for a temporary
       restraining order, preliminary injunction or other injunctive relief to enforce
       Employee’s compliance with the obligations, acknowledgments and covenants in
       this Section 4. Employer may also include as part of such injunction action any
       claims for injunctive relief under any applicable law arising from the same facts
       or circumstances as any threatened or actual violation of Employee’s obligations,
       acknowledgments and covenants in this Section 4. (Emphasis added).

       On October 21, 2013, Jimenez filed a response in opposition to Defendants’ motion to

compel arbitration. In support, she attached a sworn affidavit, stating that: (1) she does not recall

reading or signing the Agreement produced by Defendants, receiving a copy of it, or reviewing




                                                  3
its terms; and (2) she neither started nor continued her employment with the intent to be bound

by its provisions.

       The court held an evidentiary hearing, and denied Defendants’ motion to compel

arbitration. In its order, the court declined to address whether Jimenez had actually signed the

Agreement, reviewed it, or received a copy of it, concluding instead that it “need not address

these matters since the third element necessary to create a binding contract, bargained for

consideration, is dispositive of this matter.” The court stated that the parties had agreed that

Jimenez was an “at-will” employee. It then concluded the agreement to arbitrate lacked

consideration because, “there cannot be sufficient consideration given in an employment contract

with an at-will employee such as to consummate a binding contract to arbitrate any dispute

between the parties.” The court further held that even if the arbitration agreement contained

consideration, it was unenforceable because its terms were unconscionable. Defendants appeal.

                                  STANDARD OF REVIEW

       Whether arbitration can be compelled under the terms of an employment agreement is a

question of contract law that we review de novo. State ex rel. Vincent v. Schneider, 194 S.W.3d

853, 856 (Mo. banc 2006); Morrow v. Hallmark Cards, Inc., 273 S.W.3d 15, 21 (Mo. App. W.D.

2008). Generally, “when faced with a motion to compel arbitration, we must consider three

factors: first, whether a valid arbitration agreement exists; second, whether the specific dispute

falls within the scope of the agreement; and third, whether the agreement is subject to revocation

under applicable principles of contract law. Frye v. Speedway Chevrolet Cadillac, 321 S.W.3d

429, 434-35 (Mo. App. W.D. 2010). The party seeking to compel arbitration has the burden of

proving the existence of a valid and enforceable arbitration agreement. Whitworth v. McBride &

Sons Homes, Inc., 344 S.W.3d 730, 737 (Mo. App. W.D. 2011).



                                                4
                                                   DISCUSSION

         In their first two points, Defendants argue that the parties formed a valid arbitration

agreement providing two separate types of consideration: (1) Cintas’s offer of “new” or “future”

at-will employment; and (2) Cintas’s and Jimenez’s mutual promises to arbitrate. Jimenez

responds that the arbitration agreement is effectively devoid of consideration, and therefore

invalid, because her employment relationship with Cintas was “at-will,” and Cintas’s promise to

arbitrate was not mutually binding. We agree that, under Missouri law, neither Jimenez’s at-will

employment nor the arbitration provision provides consideration to support a contractual

obligation on the part of Jimenez to arbitrate disputes with Cintas. Our disposition of these first

two points is dispositive of the appeal, therefore we do not address Defendants’ points three and

four.1

         “[A]rbitration is a matter of contract, and parties will be compelled to arbitrate their

claims only if the arbitration agreement satisfies the essential elements of a valid contract.”

Marzette v. Anheuser-Busch, Inc., 371 S.W.3d 49, 52 (Mo. App. E.D. 2012). To resolve disputes

concerning the validity of a contract, we apply the usual rules of state contract law and canons of

contract interpretation. Whitworth, 344 S.W.3d at 736 (quoting Frye, 321 S.W.3d at 434-435);

Schneider, 194 S.W.3d at 856. Although the Federal Arbitration Act is to be applied when

enforcing a contract that invokes its provisions, “Missouri contract law applies to determine

whether the parties have entered a valid agreement to arbitrate.” Schneider, 194 S.W.3d at 856

(citing State ex rel. PaineWebber, Inc. v. Voorhees, 891 S.W.2d 126, 128 (Mo. banc 1995)).

         1
            Our discussion below addresses only whether the contract contained valid consideration, a question
regarding contract formation under Missouri law. Thus, we do not address the issue of enforceability of the contract
“according to the federal arbitration act,” since enforceability presupposes the existence of a validly formed contract,
and, here, the arbitration provision delegates to the arbitrator the authority to resolve such disputes. See Rent-A-Ctr.,
W., Inc. v. Jackson, 561 U.S. 63, 70-72 (2010) (holding a delegation provision may vest the arbitrator, not the
courts, with the authority to determine whether the agreement was unconscionable); see also Netco, Inc. v. Dunn,
194 S.W.3d 353, 360 (Mo. banc 2006) (recognizing the scope of arbitration agreements is to be liberally construed
under the Federal Arbitration Act).

                                                           5
       In Missouri, legal consideration is essential for the formation of any contract, including

one for arbitration. Kunzie v. Jack-In-The-Box, Inc., 330 S.W.3d 476 (Mo. App. E.D. 2010).

Consideration is created by “either a promise (to do or refrain from doing something) or the

transfer or giving up of something of value to the other party.” Morrow, 273 S.W.3d at 25.

Where “two considerations are given for a promise, one of them being legally sufficient to

support a promise and the other not sufficient, the promise is enforceable.” Earl v. St. Louis

Univ., 875 S.W.2d 234, 236-237 (Mo. App. E.D. 1994); Y.W. v. Nat’l Super Markets, Inc., 876

S.W.2d 785, 791 (Mo. App. E.D. 1994) (“contract which has several items of consideration, one

sufficient and one insufficient, may be upheld on the strength of the valid consideration.”).

Therefore, if consideration is provided by either: (1) the parties’ mutual promises to arbitrate; or

(2) Jimenez’s “future” or “new” at-will employment, as Defendants claim, we will find the

arbitration agreement contains consideration.

       A. At-Will Employment Does Not Constitute Consideration

       In their second point,2 Defendants contend that Cintas’s promise of at-will employment

provided the consideration needed to form a legally valid arbitration agreement, because her

employment can be characterized as “new” or “future” as opposed to “continued” at-will

employment. Jimenez, however, correctly responds that in Missouri, a promise of at-will

employment does not qualify as consideration, regardless of whether it is characterized as “new,”

“future,” or “continued” at-will employment. Thus, it does not provide the consideration needed

to support the arbitration agreement in this case.

       Defendants concede that Jimenez was an at-will employee. They also agree that under

Morrow v. Hallmark Cards, Inc., 273 S.W.3d 15 (Mo. App. W.D. 2008), a promise of

“continued” at-will employment will not constitute consideration for purposes of enforcing an
       2
           For ease of analysis, we address Defendants’ Points I and II in reverse order.

                                                           6
arbitration agreement. See also Clemmons v. Kansas City Chiefs Football Club, Inc., 397 S.W.3d

503, 507 (Mo. App. W.D. 2013) (holding offer of continued at-will employment did not

constitute consideration for the arbitration agreement). Defendants argue, however, that this line

of authority can be distinguished from the instant case, because the type of employment in

Morrow, and its progeny, involved offers of continued at-will employment, while here Cintas’s

promise to Jimenez relates to “future” or “new” at-will employment.3 This distinction is

immaterial.

        In Morrow, an employer similarly argued that its “offer” of “continuing employment”

supplied the consideration needed for an arbitration provision it sought to enforce against its

former employee’s claims. 273 S.W.3d at 27. The court of appeals observed that in Missouri,

“[e]mployment-at-will is not a legally enforceable employment relationship because it is

terminable at the will of either party, on a moment-by-moment basis.” Morrow, 273 S.W.3d at

26. The court in Morrow, therefore, reasoned that the, “[t]erms and conditions of at-will

employment are not enforceable at law as contractual duties,” and an employer’s offer of

“continued at-will employment” lacks consideration. Id. at 26-27; see also Clemmons, 397

S.W.3d at 508 (finding employee’s “at-will employment . . . was not a legally enforceable

employment relationship, so any terms and conditions placed on his employment were not

enforceable at law as contractual duties.”).

        Here, regardless of whether we characterize Jimenez’s employment as “new,” “future” or

“continued,” her employment with Cintas was at-will. Under Missouri law, as stated in Morrow,

terms and conditions of at-will employment are unilaterally imposed on employees, so they “are


        3
           It is not clear from the record what specific day Jimenez began her employment in December 2011.
Defendants contend that Jimenez “was offered employment by Cintas as a Fire Service Technician contingent upon
execution of [the Agreement].” Presumably, Defendants are claiming that Jimenez signed the Agreement before she
was hired.

                                                      7
not enforceable at law as contractual duties,” Morrow, 273 S.W.3d at 26, and will not create

consideration any more in this case than if Jimenez’s employment had been “continued” at-will

employment. See also Clemmons, 397 S.W.3d at 508; Whitworth, 344 S.W.3d at 741; Frye, 321

S.W.3d at 438 (finding no consideration where the agreement “does not alter the fundamental

component of the at-will employment relationship—the ability to quit or be fired at anytime for

any reason.”).4

        Defendants cite McIntosh v. Tenet Health Systems Hospitals, Inc., 48 S.W.3d 85, 89

(Mo. App. E.D. 2001), for the proposition that “an offer of new at-will employment, contingent

upon the execution of an arbitration agreement, will serve as sufficient consideration for the

agreement to arbitrate.” McIntosh does not support this proposition. In McIntosh a former

employee brought an action against his employer for wrongful termination and breach of

contract. Id. at 88. Nowhere do the facts in McIntosh indicate that an at-will employment

relationship existed between the employee and his employer, and nowhere does the court address

at-will employment or seek to distinguish between offers of “new” at-will employment and

“continued” at-will employment. See id. (stating only that employee’s lawsuit was “for wrongful

termination and breach of contract.”).

        Accordingly, we hold that Cintas’s offer of at-will employment to Jimenez does not

qualify as valid consideration to support the arbitration provision in this case. Point denied.




        4
            In Whitworth v. McBride & Son Homes, Inc. an employer presented nearly the same argument as
Defendants present here, contending that the court should distinguish between a promise of “continued” at-will
employment and an “initial” offer of at-will employment. 344 S.W.3d at 741. The court in Whitworth declined to
acknowledge any difference “between accepting an at-will employment offer and agreeing to continue an at-will
employment relationship,” before ultimately finding no material difference actually existed between its facts and
those found in Morrow because the facts in both cases involved offers of “continued” employment. Id. (finding “no
practical distinction between the facts of this case and Morrow.”).

                                                       8
       B. The Parties Are Not Mutually Obligated to Arbitrate All of Their Claims

       Defendants also contend that consideration is provided by the arbitration provision’s

mutual promises to arbitrate disputes. Jimenez responds, however, that the agreement to arbitrate

is not “mutual and reciprocal,” and is therefore devoid of consideration, because it exempts

Cintas from arbitrating those claims it is most likely to bring against Jimenez, while she remains

bound to arbitrate those claims that she is “most likely to bring against [Cintas].”

       Where there is no consideration other than the parties’ mutual promises, the agreement is

commonly referred to as a bilateral contract. Baier v. Darden Restaurants, 420 S.W.3d 733 (Mo.

App. W.D. 2014). Valid consideration supporting a bilateral contract, unlike a unilateral contract,

rests solely on whether the parties’ promises to each other are mutually binding. Frye, 321

S.W.3d at 438 (“if a contract contains mutual promises, such that a legal duty or liability is

imposed on each party as a promisor to the other party as a promise, the contract is a bilateral

contract supported by sufficient consideration.”). Consequently, in Missouri, a bilateral contract

also requires “mutuality of obligation,” as essential to the formation a valid contract. See

Sumners v. Service Vending Co., Inc., 102 S.W.3d 37, 41 (Mo. App. S.D. 2003) (“[A] promise is

not good consideration unless there is mutuality of obligation . . . .”); Kunzie, 330 S.W.3d at 483

(citing Baris v. Layton, 43 S.W.3d 390, 396 (Mo. App. E.D. 2001)); Krusen v. Maverick

Transp., 208 S.W.3d 339, 342 (Mo. App. S.D. 2006).

       Mutuality of obligation “means that an obligation rests upon each party to do or permit to

be done something in consideration of the act or promise of the other; that is, neither party is

bound unless both are bound.” Sumners, at 102 S.W.3d at 41(quoting Aden v. Dalton, 107

S.W.2d 1070, 173 (Mo. 1937)). Accordingly, in a bilateral contract, where no other consideration

is found, Missouri courts scrutinize whether the obligations are, in fact, mutual. See, e.g., Greene



                                                 9
v. Alliance Automotive, Inc., 435 S.W.3d 646 (Mo. App. W.D. 2014) (holding arbitration

provision lacked mutuality of obligation because it allowed car dealership to exercise its primary

remedy of self-help repossession without waiving arbitration of other disputes, thereby allowing

it to unilaterally divest itself of the promise to arbitrate); see also Sumners, 102 S.W.3d at 41

(recognizing “a promise is not good consideration unless there is mutuality of obligation, so that

each party has the right to hold the other to a positive agreement.”) (emphasis added).

       In a bilateral contract, such as the one here, courts must consider the “lack of mutual

promises to submit claims to arbitration . . . in determining whether there is an enforceable

agreement.” Morrow, 273 S.W.3d at 24. A contract that purports to exchange mutual promises

will be construed as lacking legal consideration if one party retains the right to “unilaterally

divest itself of an obligation to perform the promise initially made.” Frye, 321 S.W.3d at 442.

       As with any contract, we will review the terms of an arbitration agreement to “ascertain

the intention of the parties and to give effect to that intent.” See Kohner Properties, Inc. v. SPCP

Group VI, LLC, 408 S.W.3d 336, 342 (Mo. App. E.D. 2013) (quoting Dunn Industrial Group,

Inc. v. City of Sugar Creek, 112 S.W.3d 421, 428 (Mo. banc 2003)). Furthermore, we read the

terms of the contract together as a whole to determine the intention of the parties, giving each

term its plain, ordinary, and usual meaning. Kohner, 408 S.W.3d at 342. In doing so, we attribute

“a reasonable meaning to all of the provisions of the agreement” and refrain from leaving “some

of the provisions without function or sense.” Id. at 342-43. We determine whether an agreement

provides mutual obligation by looking to the language of the purported agreement in each case.

See, e.g., Morrow, 273 S.W.3d at 25 (noting terms of arbitration agreement at issue did not bind

employer to submit its claims to arbitration or “keep any other so-called ‘promise’ expressed in




                                                10
the [arbitration agreement].”); Frye, 321 S.W.3d at 440-441 (analyzing terms of employee’s

dispute resolution program and noting no “corollary provisions” applied to employer).

       Here, Section 8 of the Agreement requires that Cintas and Jimenez arbitrate any

unresolved “claims for damages, as well as reasonable costs and attorney’s fees, caused by [the

other]’s violation of any provision of this Agreement or any law, regulation or public policy.”

However, it expressly exempts from arbitration: “workers’ compensation claims, unemployment

benefits claims, claims for a declaratory judgment or injunctive relief concerning any provision

of Section 4 and claims not lawfully subject to arbitration . . . .” (Emphasis added).

       Defendants argue that the above terms in Section 8 plainly require both parties to

arbitrate their disputes, with several exceptions, and these terms should be construed as “mutual

in all relevant respects.” On its face, we agree that the language in Section 8 plainly states that

both parties must arbitrate all of their claims except: workers’ compensation claims,

unemployment benefits claims, claims not lawfully subject to arbitration, and “claims for a

declaratory judgment or injunctive relief concerning any provision of Section 4 . . . .”

       Jimenez, however, correctly points to additional language in Section 4, providing

that only the:

       Employer[,] may apply to any court of competent jurisdiction for a temporary
       restraining order, preliminary injunction or other injunctive relief to enforce
       Employee’s compliance with the obligations, acknowledgments and covenants in
       this Section 4. Employer may also include as part of such injunction action any
       claims for injunctive relief under any applicable law arising from the same facts
       or circumstances as any threatened or actual violations of Employee’s obligations,
       acknowledgements and covenants in this Section 4.

The effect of the language in Section 4, Jimenez asserts, is that Cintas alone is exempted from

arbitrating alleged violations of the Non-Compete Provisions.




                                                 11
         Defendants reply that the plain terms of Section 8 do not specify which party may seek

judicial relief for alleged violations of the Non-Compete Provisions of Section 4, and so we

should construe Section 8 to mean that both parties are exempt from arbitrating alleged

violations of the Non-Compete Provisions of Section 4. But this interpretation would render

meaningless the express language of Section 4, which provides that Cintas alone may apply “for

a temporary restraining order, preliminary injunction or other injunctive relief to enforce

[Jimenez]’s compliance with the obligations, acknowledgments and covenants in this Section 4.”

         We construe a contract as a whole so as not to render any terms meaningless. See

Chochorowski v. Home Depot U.S.A., 404 S.W.3d 220, 229 (Mo. banc 2013). Furthermore,

when construing the language of a contract, specific terms and provisions are given preference

over general terms. See General American Life Ins. Co. v. Barrett, 847 S.W.2d 125, 133 (Mo.

App. W.D. 1993). We, therefore, cannot ignore the specific language of Section 4.

         We agree with Jimenez that Cintas alone is exempted from arbitrating disputes

concerning Section 4’s Non-Compete Provisions, while Jimenez is bound to arbitrate those same

claims. We also agree that this exception allows Cintas to refrain from arbitrating those claims it

is most likely to bring against Jimenez.5 At the same time, Jimenez is bound to arbitrate all of


         5
           This Court will take judicial notice of the records of other cases in Missouri when justice requires it. See
State v. Pennick, 364 S.W.2d 556, 559 (Mo. 1963); Jones v. Des Moines & Mississippi River Levee Dist. No. 1, 369
S.W.2d 865 (Mo. App. St.L. 1963). Our review of Missouri’s published appellate cases over the past six years
confirms that in those cases, the majority of lawsuits brought by employers against employees have included actions
for injunctive or declaratory relief based on alleged violations of various non-compete provisions that are of a type
similar to those Cintas has exempted itself from arbitrating under the terms of Section 4. Compare Sigma-Aldrich
Corp. v. Vikin, 2014 WL 5139359 (Mo. App. E.D. Oct. 14, 2014) (seeking injunctive relief for alleged violation of
non-compete provisions), and Lapponese v. Carts of Colorado, Inc., 422 S.W.3d 396, 400 (Mo. App. E.D. 2013);
Jumbosack Corp. v. Buyck, 407 S.W.3d 51 (Mo. App. E.D. 2013), and Whelan Sec. Co. v. Kennebrew, 379 S.W.3d
835 (Mo. banc 2012), and Paradise v. Midwest Asphalt Coatings, Inc., 316 S.W.3d 327 (Mo. App. W.D. 2010)
(requesting injunction under non-compete provisions in counterclaim), and Mihlfeld & Assoc., Inc. v. Bishop &
Bishop, L.L.C., 295 S.W.3d 163 (Mo. App. S.D. 2009), and Brown v. Rollet Bros. Trucking Co., 291 S.W.3d 766,
773-774 (Mo. App. E.D. 2009), and Payroll Advance, Inc. v. Yates, 270 S.W.3d 428 (Mo. App. S.D. 2008), with
Central Trust & Inv. Co. v. Kennedy, 2013 WL 268687 (Mo. App. S.D. Jan. 24, 2013) (alleging misappropriation of
trade secrets since non-compete provisions under employment agreement were void due to sale of company), and
Mead v. Moloney Sec. Co., 274 S.W.3d 537 (Mo. App. E.D. 2008) (breach of contract), and Western Blue Print Co.

                                                         12
those claims legally arbitrable.6 Thus, the Agreement allows Cintas to seek redress through the

court system for those claims it is most likely to have against Jimenez, while binding Jimenez to

arbitrate all legally arbitrable claims she may have against Cintas.

        Equally critical to resolution of this issue is that the plain language of Section 4 allows

Cintas to file “any claims for injunctive relief under any applicable law arising from the same

facts or circumstances as any threatened or actual violation of Employee’s obligations . . . in this

Section 4.” (Emphasis added). This expansive clause arguably renders illusory Cintas’s promise

to arbitrate, by permitting Cintas to seek redress in the courts based upon its bare allegation that

such claims are tied to Section 4’s Non-Compete Provisions. Cintas may litigate at its discretion,

while Jimenez is bound to arbitrate all of her legally arbitrable claims.

        Where the practical effect of an arbitration agreement binds only one of the parties to

arbitration, it lacks mutuality of promise, and is devoid of consideration. Baker, 2014 WL

4086378, at *5 (holding contracts to arbitrate that permit unilateral, retroactive amendment are

deemed illusory, and do not constitute consideration, because only one party is effectively bound

to arbitrate); Frye, 321 S.W.3d at 442-445; see also Morrow, 273 S.W.3d at 20 (Ahuja, J.,

concurring); Marzette, 371 S.W.3d 49, 53 (Mo. App. E.D. 2012) (finding arbitration agreement



v. Roberts, 367 S.W.3d 7 (Mo. banc 2012) (alleging breach of fiduciary duty, tortious interference, and civil
conspiracy), and Moore Auto. Grp., Inc. v. Goffstein, 301 S.W.3d 49 (Mo. banc 2010) (civil conspiracy and
conversion), and Saturn of Tiffany Springs v. McDaris, 331 S.W.3d 704 (Mo. App. W.D. 2011) (petitioning court to
vacate arbitration award). While we are mindful this review cannot account for the universe of actions that were not
appealed, we find no reason to assume the trend in circuit court would substantially depart from the trend reflected
by cases that were appealed.
         6
           Cintas’s promise to exempt Jimenez from arbitrating charges of discrimination to the extent they are filed
with an administrative agency is not consideration. It is compelled to allow this exemption by the United States
Supreme Court in Gilmer v. Interstate/Johnson Lane, 500 U.S. 20, 28 (1991). Neither do we find consideration in
the arbitration exemptions for employees who wish to file claims for unemployment benefits or workers’
compensation. The legislature has vested exclusive jurisdiction for these types of claims with specialized
administrative tribunals, see Wood v. Union Elec. Co., 786 S.W.2d 613, 614 (Mo. App. E.D. 1990), and these types
of claims cannot be arbitrated as a matter of law. See Ferguson v. Countrywide Credit Industries, Inc., 298 F.3d 778,
785 n.6 (9th Cir. 2002); see also Doran v. Chand, 284 S.W.3d 659, 665 (Mo. App. W.D. 2009) (finding employer’s
promise not to discriminate against employees on the basis of race does not constitute consideration because the law
obligates employer not to discriminate).

                                                        13
that contained no promise to arbitrate employer’s claims lacked mutuality and did not constitute

sufficient consideration). Here, Section 4 of the Agreement effectively negates Cintas’s

obligations under Section 8.7

         Cintas, as the party seeking to compel arbitration, has failed to meet its burden of proving

the existence of a validly formed arbitration agreement. See Whitworth, 344 S.W.3d at 737

(burden of proof rests with party seeking to compel arbitration). Because Cintas is not bound to

arbitrate its claims against Jimenez, but retains the discretion to seek court action for those

claims it wishes, Cintas’s promise to arbitrate is devoid of mutuality of obligation. Accordingly,

Cintas’s professed promise to arbitrate is not valid consideration and does not support a

determination that the parties formed a valid agreement under Missouri law. Point denied.

                                                CONCLUSION

         We affirm the trial court’s judgment overruling Defendants’ motion to compel

arbitration.


                                                               _________________________________
                                                               Lisa S. Van Amburg, Judge



Angela T. Quigless, C.J. concurs and
Kurt S. Odenwald, J. concurs in a separate opinion.




         7
          Defendants emphasize that only the language in Section 8 should be considered by this Court, and any
language in Section 4 that undermines the suggestion that both parties were exempt from arbitrating violations of the
Non-Compete Provisions should be disregarded. This argument lends uncertainty as to whether the agreement also
lacks mutuality of assent. See Kunzie, 330 S.W.3d at 483 (“A mutual agreement is reached when ‘the minds of the
contracting parties . . . meet upon and assent to the same thing in the same sense at the same time.’”).

                                                         14
         In the Missouri Court of Appeals
                 Eastern District
                                          DIVISION III

KATHRYN JIMENEZ,                              )               No. ED101015 & 101241
                                              )
       Respondent,                            )               Appeal from the Circuit Court
                                              )               of St. Louis County
vs.                                           )
                                              )               Honorable Michael T. Jamison
CINTAS CORPORATION, et al.,                   )
                                              )
       Appellants.                            )               Filed: January 13, 2015


                                        INTRODUCTION

       I concur with the result of the majority opinion for the limited reason that the arbitration

provisions of the employment agreement lack the mutuality of obligation to provide the requisite

consideration to support a binding agreement. As noted by majority, when construing the terms

of the arbitration provisions as a whole, it is clear that while Cintas may apply to any court of

competent jurisdiction for a temporary restraining order, preliminary injunction or other

injunctive relief to enforce an employee's contractual obligations, Jimenez is not granted such

right under the arbitration provisions. Where the practical effect of an arbitration agreement

binds only one of the parties to arbitration, the agreement lacks mutuality of promise, and is
devoid of consideration. For this reason, and this reason alone, I agree with affirming the trial

court's judgment denying Cintas' motion to compel arbitration.

       However, unlike the majority, I am unwilling to extend Missouri authority holding that

an offer of continued at-will employment lacks consideration to support an arbitration agreement

to the facts of this case, which involves the initial promise of at-will employment. See Morrow

v. Hallmark Cards, Inc., 273 S.W.3d 15 (Mo. App. W.D. 2008), (a promise of “continued” at-

will employment will not constitute consideration for purposes of enforcing an arbitration

agreement.) See also Clemmons v. Kansas City Chiefs Football Club, Inc., 397 S.W.3d 503, 507

(Mo. App. W.D. 2013). Notably, no Missouri case has held that an initial offer of at-will

employment is illusory or lacks the requisite mutuality of promise to provide consideration for

the agreement. Unlike the majority, I consider the distinction between "continued" employment

and "initial" employment to be a material difference.

       Jimenez began working for Cintas in December 2011 and was terminated in June 2012.

Cintas was under no obligation to hire Jimenez. As noted by the majority, consideration is

created by “either a promise (to do or refrain from doing something) or the transfer or giving up

of something of value to the other party.” Morrow, 273 S.W.3d at 25. When Cintas hired

Jimenez, it affirmatively did something it was not legally obligated to do. This circumstance is

substantively different than merely allowing an employee to continue what the employee has

already been doing for the employer. Bringing on a new hire necessarily involves an

undertaking of additional effort and obligation that is absent in allowing "continued"

employment.

       The majority's reference to Whitworth v. McBride & Son Homes, Inc., 344 S.W.3d 730

(Mo. Ct. App. 2011) is unconvincing. The Western District in Whitworth did not engage in any



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substantive discussion as to the legal distinction between an initial promise of at-will

employment and the continuance of at-will employment relationship for purposes of providing

consideration for an enforceable arbitration contract. In fact, Whitworth acknowledges the

existence of this potential issue in only one sentence. Whitworth provides no authority for

holding that a promise of at-will employment necessarily lacks the consideration required to

support the arbitration provisions of an employment agreement. Nor does any Missouri judicial

authority. For this reason, I limit my concurrence to the majority's holding that consideration

fails because Cintas is not mutually obligated to use the arbitration process required of Jimenez.




                                                      _________________________________
                                                      Kurt S. Odenwald, Judge




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