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Brondyke v. Bridgepoint Educ., Inc.

United States District Court, S.D. Iowa, Davenport Division

December 2, 2013


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For Patricia Brondyke, Plaintiff: Blake Parker, LEAD ATTORNEY, BLAKE PARKER LAW OFFICE, Clinton, IA.

For Bridgepoint Education, Inc, doing business as Ashford University, LLC, Defendant: Frances M. Haas, LEAD ATTORNEY, Stephanie Glenn Techau, NYEMASTER GOODE PC, Cedar Rapids, IA; Jeffrey A. Timmerman, Susan K Fitzke, PRO HAC VICE, LITTLER MENDELSON PC (MN), MINNEAPOLIS, MN.

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JAMES E. GRITZNER, Chief United States District Judge.

This matter is before the Court on Motion by Defendant Bridgepoint Education, Inc. (Bridgepoint) for Partial Dismissal and to Compel Arbitration. Plaintiff Patricia Brondyke (Brondyke) resists. A hearing was not requested, and the Court finds that a hearing is not necessary. The matter is fully submitted and ready for disposition.


A. Factual Background

Brondyke began working at Ashford University (Ashford) as the Iowa Controller in Clinton, Iowa, on December 31, 2007. Ashford is a wholly owned subsidiary of Bridgepoint, which is a publicly-traded corporation.

Brondyke signed an " Employee Responsibility & Acknowledgement" form (August 2008 Acknowledgement Form) on August 19, 2008, which stated the following:

This Employee Handbook describes important information about Bridgepoint Education, LLC. I understand that I should consult with my supervisor or a Human Resources representative regarding any questions not answered in this Handbook.
Since the information, policies and benefits described in the Handbook are subject to change, I acknowledge that revisions may occur, and I understand that such revisions may supersede, modify or eliminate existing policies. I further understand and agree that I will be bound by any such revisions during the term of my employment with Bridgepoint Education, LLC. I further understand that any revisions or exceptions to the policies

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contained in this manual must be in writing and approved by the CEO of Bridgepoint Education, LLC.
I acknowledge that the official copy of the Employee Handbook is located on our Company Intranet under the HR Tab, and will periodically review the official copy to take note of any revisions and/or updates.
I acknowledge that I have read the Employee Handbook and understand my rights and responsibilities as a Bridgepoint Education, LLC employee. I agree to abide by the policies as set forth in the Employee Handbook.

August 2008 Acknowledgement Form, Dackerman Decl. ¶ 7 - Ex. 3, ECF No. 12-7.

During the time Brondyke worked at Ashford, John Ballheim (Ballheim) was the Vice President of Bridgepoint, the Campus Director of Ashford, and Brondyke's supervisor. Ballheim had authorization credentials to approve employee expense reimbursement requests in the Concur software system, which Bridgepoint used to track employee expense reimbursement. Brondyke learned that Ballheim allowed an administrative employee to use Ballheim's authorization credentials to access the Concur software and to approve employee expenses in the system. Brondyke, believing these actions to be a breach of Bridgepoint policy regarding password security, reported the situation to human relations personnel at the university. According to Brondyke, after she made the report, Ballheim stopped communicating with Brondyke and started to denigrate Brondyke's performance at work to other Bridgepoint employees.

In October of 2011, Brondyke learned that Ballheim had again allowed an administrative employee to use Ballheim's authorization credentials to access the Concur system to approve employee expense reimbursements and reported this perceived violation of Bridgepoint policy to Bridgepoint Assistant Vice President Tom Meade. In November of 2011, Elizabeth Tice (Tice), the CEO and President of Ashford University, called Brondyke demanding that Brondyke quit complaining about Ballheim giving his authorization credentials to an administrative employee at the university. Following Brondyke's second report, Ballheim conducted Brondyke's annual evaluation and gave Brondyke lower scores than Brondyke's previous evaluation scores; this was the first time Ballheim had expressed disgruntlement with Brondyke's work.

Also in October 2011, Brondyke recommended that the Ashford University campus store manager, who was a younger individual, be discharged for mismanagement, rule violations, and insubordination reasons. Rather than discharging the campus store manager, Bridgepoint provided the campus store manager with intensive coaching and weekly meetings with Brondyke and a Bridgepoint human resources employee. However, consistent with its " Best in Class" policy, after placing in the bottom ten percent of Bridgepoint employees in an annual evaluation, Bridgepoint discharged the campus store manager.

On October 28, 2011, Bridgepoint sent an e-mail to an all-employee listserv that stated in the subject line " URGENT: Employee Handbook Update Acknowledgement Required." Bridgepoint Email of Oct. 28, 2011, Dackerman Decl. ¶ 9 - Ex. 6, ECF No. 12-10. The text of the messages stated as follows:

The latest revision of the Employee [Handbook] is now posted on the HR Insite page for you to view. You can access it immediately by clicking here. The revisions made within supersede, modify or eliminate existing policies.

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For a snapshot of updated policies, please refer to the attached document.
All employees are bound by any revisions, and must agree to and abide by the policies contained in this release. . . .
Once you have reviewed the handbook, please log in to the ADP Self Service Portal to access the new StudyHall. You will see a course for the Employee Handbook Acknowledgement in your transcript. Click Launch to begin the acknowledgement process and follow the instructions in the course to complete the task.

Attach. to Bridgepoint Email of Oct. 28, 2011, Dackerman Decl. ¶ 9 - Ex. 6, ECF No. 12-10. The document attached to this e-mail announces that in section 2.24 of the Bridgepoint Employee Handbook released on October 27, 2011 (the October 2011 Employee Handbook), " is a new provision in the Employee Handbook. The Company and employee will utilize binding arbitration to resolve all disputes that may arise out of the employment context. It is important that you read this section in the employee handbook in its entirety." Id.

Section two of the October 2011 Employee Handbook contains employee policies and procedures. As the email advised, subsection 2.24 of the October 2011 Employee Handbook contains the Arbitration Clause, which states as follows:

Binding arbitration of disputes, rather than litigation in courts, provides an effective means for resolving issues arising in or from an employment situation. Arbitration is generally faster, cheaper and less formal for all parties. Bridgepoint Education [and] Ashford University, . . . (collectively referred to as " the Company) are committed to using binding arbitration to resolve all legal disputes, whether initiated by the Company or by an employee, in a forum which provides this alternative to the court system. As a condition of employment, employees must also agree to use the arbitration forum. The Company's agreement to use binding arbitration is confirmed by this statement; your agreement is confirmed by your acceptance or continuation of employment.


The Company and employee will utilize binding arbitration to resolve all disputes that may arise out of the employment context. Both the Company and employee agree that any claim, dispute, and/or controversy that either employee may have against the Company . . . or the Company may have against employee, arising from, related to, or having any relationship or connection whatsoever with my seeking employment by, or other association with the Company, shall be submitted to and determined exclusively by binding arbitration under the Federal Arbitration Act. All claims must be brought in the parties' individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding.

Included Claims

Included within the scope of this agreement are all disputes, whether they be based on the California Fair Employment and Housing Act, Title VII of the Civil Rights Act of 1964, as amended, or any other state or federal law or regulation, equitable law, or otherwise, with exception of claims arising under the National Labor Relations Act which are brought before the National Labor Relations Board, claims for medical and disability benefits under the California Workers' Compensation Act, Employment Development Department claims, or as otherwise required by state or federal law.
However, nothing herein shall prevent an employee from filing and pursuing

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proceedings before the California Department of Fair Employment and Housing, or the United States Equal Employment Opportunity Commission or any other similar state agency (although if such a claim is pursued following the exhaustion of such administrative remedies, that claim would be subject to these provisions). . . .


In addition to any other requirements imposed by law, the arbitrator selected shall be a retired Judge, or otherwise qualified individual to whom the parties mutually agree, and shall be subject to disqualification on the same grounds as would apply to a judge of such court. The arbitrator shall have the authority to order such discovery, by way of deposition, interrogatory, document production, or otherwise, as the arbitrator considers necessary to a full and fair exploration of the issues in dispute, consistent with the expedited nature of arbitration. Consistent with the efficiencies of arbitration, the arbitrator may also allow for the hearing of any motions, including motions for summary judgment or dismissal. Resolution of the dispute shall be based solely upon the law governing the claims and defenses pleaded, and the arbitrator may not invoke any basis (including but not limited to, notions of 'just cause') other than such controlling law. The arbitrator shall not have the authority to combine individually filed arbitrations into a class action or collective action. Awards shall include the arbitrator's written reasoned opinion.

Should any term or provision, or portion thereof, be declared void or unenforceable or deemed in contravention of law, it shall be severed and/or modified by the arbitrator or court and the remainder of this agreement shall be enforceable.

Entire Agreement

This agreement supersedes any and all prior agreements regarding ...

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