UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ANDREA PELLERIN, a/k/a Andrea
Pelerin Knapp,
Plaintiff-Appellee,

v.

LIFE INSURANCE COMPANY OF NORTH
                                                               No. 98-2528
AMERICA,
Defendant-Appellant,

and

CIGNA INSURANCE COMPANY,
Defendant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-98-480)

Argued: April 9, 1999

Decided: July 19, 1999

Before LUTTIG and WILLIAMS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Robert Charles Drake, LIFE INSURANCE COMPANY
OF NORTH AMERICA, Philadelphia, Pennsylvania, for Appellant.
Colleen Marea Quinn, CANTOR, ARKEMA & EDMONDS, P.C.,
Richmond, Virginia, for Appellee. ON BRIEF: Eric Anthony Welter,
HUNTON & WILLIAMS, McLean, Virginia, for Appellant.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Life Insurance Company of North America (LINA) seeks review
of an order entered by the United States District Court for the Eastern
District of Virginia. The district court denied LINA's motion to com-
pel arbitration and to dismiss or stay the judicial proceedings. On
appeal, LINA requests that the district court's order be vacated and
remanded. We affirm.

I

This dispute arises out of a complaint alleging discrimination in
violation of Title VII filed by Andrea Pellerin against LINA. Pellerin
was employed by CIGNA as a sales representative for the CIGNA
Group Insurance Division, which consists of all CIGNA affiliated
companies such as LINA, from December 12, 1994, until she
resigned on November 20, 1997. During her employment Pellerin
worked in several territories including the Norfolk/Virginia Beach,
Virginia, territory and the Raleigh/Durham, North Carolina, territory.

When Pellerin commenced her employment with LINA, she did
not sign an arbitration agreement. From the start of her employment
with LINA, Pellerin felt that she was being sexually harassed and
treated differently than male counterparts. But, she did not file a for-
mal complaint until her supervisor, David Harris, hired a male from
outside of LINA to take a position he had previously given to Pel-
lerin. Pellerin scheduled a meeting for November 6, 1997, after she

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filed the complaint with human resources. Grace Gavigan, LINA's
human resources consultant, met with Pellerin to discuss her com-
plaint. The parties dispute whether the arbitration policy was dis-
cussed. Gavigan listened to Pellerin's complaints and told her how the
investigation would proceed. Gavigan claims that as a result of this
meeting she sent Pellerin a copy of the arbitration policy, rules, and
procedures via overnight delivery to her home. Pellerin denied receiv-
ing this package.

As suggested by Gavigan, Pellerin met with David Staley on
November 10, 1997. Again, the parties disagree as to whether the
arbitration policy was discussed at this meeting. Pellerin met with
Staley a second time on November 20, 1997. At this meeting Staley
gave Pellerin a memorandum dated November 18, 1997, which sum-
marized his investigation regarding her concerns. The memo does
make reference to arbitration; however, it merely advises her that
arbitration is an alternative means to resolve her complaint.

On November 20, 1997, Pellerin spoke with Gavigan after her
meeting with Staley. She learned that the director of human resources
had instructed Gavigan to remain removed from the investigation.
Pellerin unsuccessfully tried to reach Gavigan later that day and left
her a message. Pellerin then resigned from her position. The next day
Pellerin received a letter from Gavigan, apologizing for missing her
call but making no mention of arbitration.

On November 14, 1997, Pellerin filed a charge of discrimination
with the Virginia Human Rights Council. The council arranged a vol-
untary mediation between the parties, which was scheduled for April
7, 1998. Pellerin and her attorney were present while Mellon and
Robert Drake (attorney for LINA) participated by phone; at no time
during the mediation was LINA's policy mentioned. The parties were
notified by letters dated April 8, 1998, that the case would be trans-
ferred to a compliance officer for investigation because the mediation
had been unsuccessful. Mention of LINA's arbitration policy did not
appear in the position statement that Drake submitted to the Council
on Human Rights. Pellerin's counsel requested her right to sue letter
for the VHRC/EEOC on June 11, 1998, and Drake was notified by
letter dated July 6, 1998, that the case was closed and Pellerin's right
to sue letter had been issued.

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On July 30, 1998, Pellerin filed a complaint against CIGNA Insur-
ance Company with the district court. On August 14, 1998, she filed
an amended complaint against LINA. The district court entered an
order on September 1, 1998, noting that LINA was the sole named
defendant and that CIGNA was no longer a party in the case. LINA
filed a motion to compel arbitration and to dismiss or stay judicial
proceedings pursuant to the Federal Arbitration Act. On October 8,
1998, after Pellerin had responded and LINA had replied, the district
court heard argument on the motion.

At the hearing LINA requested that a full evidentiary hearing be
held should the court find issues of fact as to whether there was an
enforceable agreement to arbitrate. The district court dismissed the
motion and denied LINA's request for an evidentiary hearing. The
district court stated from the bench that although arbitration is usually
favored, there must be evidence of an agreement. In this case, the dis-
trict court found no evidence of an agreement. It explained that
"[w]aiver of Title VII must be clear, and post-dispute notification is
questionable." The court determined that the employer should bear
the burden of the uncertainty. This appeal follows.

II

We have jurisdiction over this interlocutory appeal from an order
of the district court denying a motion to compel arbitration and to stay
proceedings pending that procedure pursuant to 9 U.S.C. § 16 and 28
U.S.C. § 1292(a). American Cas. Co. v. L-J, Inc., 35 F.3d 133, 135
(4th Cir. 1994). We review the district court's denial of the motion
de novo. Johnson v. Circuit City Stores, 148 F.3d 373, 377 (4th Cir.
1998).

In Johnson, this court stated that in order to determine whether a
party has agreed to arbitrate the dispute should be decided as a matter
of contract. See Johnson, 148 F.3d at 377. The court "should apply
`ordinary state-law principles that govern the formation of contracts.'"
Id. (citation omitted). The statute is clear. Section 3 of the Federal
Arbitration Act requires "an agreement in writing" for arbitration to
proceed. 9 U.S.C. § 3. "[A]rbitrators derive their authority to resolve
disputes only because the parties have agreed in advance to submit
such grievances to arbitration." AT&T Technologies, Inc. v. Commu-

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nication Workers of Am., 475 U.S. 643, 648-49 (1986) (citation omit-
ted).

However, in the present case there is no evidence of an agreement.
LINA claims that a copy of the arbitration policy was mailed to Pel-
lerin, but this was after she filed her formal complaint. There is no
signed agreement and no signed acknowledgment of the policy; there
is no evidence that Pellerin was aware of the arbitration policy before
she filed her complaint against LINA.

We recognize that the Supreme Court advises that"questions of
arbitrability must be addressed with a healthy regard for the federal
policy favoring arbitration." Gilmer v. Interstate/Johnson Lane Corp.,
500 U.S. 20, 26 (1991) (citation omitted). Nevertheless, as the district
court found, there was simply no evidence of any agreement to arbi-
trate between the parties.

AFFIRMED

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