NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2374-17T3
D.M.,
Plaintiff-Appellant,
v.
SAME DAY DELIVERY SERVICE,
INC. and ASHLEY MARTINEZ,
Defendants-Respondents.
_____________________________
Argued August 14, 2018 – Decided August 23, 2018
Before Judges Sumners and Gilson.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Docket No.
L-3203-17.
Mark Mulick argued the cause for appellant.
Jamie S. Felsen (Milman Labuda Law Group PLLC)
of the New York bar, admitted pro hac vice,
argued the cause for respondents (Milman
Labuda Law Group PLLC, attorneys; Netanel
Newberger, of counsel and on the brief; Jamie
S. Felsen, on the brief).
PER CURIAM
This appeal involves a dispute over whether plaintiff must
arbitrate her claim that she was subject to a hostile work
environment and terminated because of her sex and sexual
orientation. Plaintiff appeals from a January 19, 2018 order
dismissing her complaint and directing her to arbitrate her claim.
We affirm because plaintiff executed a valid and enforceable
agreement to arbitrate any dispute related to her employment or
the termination of her employment.
I.
Plaintiff worked for defendant Same Day Delivery, Inc. (Same
Day) as a delivery person for just over two months from June to
August 2017. She was hired on June 6, 2017. On that day, she
responded to an internet notification for potential employment.
She then met with an employee of Same Day, who offered her a
position as a driver at a facility in Elizabeth. Later that day,
plaintiff was requested to review and complete certain forms
through a website. Plaintiff reviewed and electronically signed
a number of documents connected to her employment, including an
"Arbitration Agreement."
The Arbitration Agreement was a one-page document consisting
of six paragraphs. Among other things, the Agreement provided:
In consideration of my assignment/employment
with the Same Day Delivery Inc., ("Company")
its promise to arbitrate all employment-
related disputes and my receipt of the
compensation, pay raises and other benefits
paid to me by the Company and or its PEO, at
present and in the future, I agree that any
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and all controversies, claims, or disputes
with anyone (including the Company and any
employee, officer, director, shareholder or
benefit plan of the Company in their capacity
as such or otherwise) arising out of, relating
to, or resulting from my assignment and or
employment with the Company or the termination
of my assignment or employment with the
Company, including any breach of this
agreement, shall be subject to binding
arbitration under the Federal Arbitration Act
and pursuant to New York law. Disputes which
I agree to arbitrate, and thereby agree to
waive any right to a trial by jury, include
any statutory claims under state or federal
law . . . .
The agreement also stated:
Furthermore, I agree that any controversy,
claim, or dispute covered by this Policy will
be arbitrated on an individual basis. No
controversy, claim, or dispute between an
employee and Company may be consolidated or
joined with a dispute between any other
employee and Company nor may an individual
employee seek to bring his/her dispute on
behalf of other employees as a class or
collective action. . . . Accordingly, except
as provided for by the Rules and this
agreement, neither the Company nor I will be
permitted to pursue court action regarding
claims that are subject to arbitration.
Finally, the last paragraph of the Arbitration Agreement
stated:
I also understand that I have a right to
consult with a person of my choosing,
including an attorney, before signing this
document. I am agree to waive my voluntarily
and knowingly, and free from any duress or
coercion whatsoever to a trial by a trial
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judge or jury as well as my right to
participate in a class or collective action.
Plaintiff began work on June 11, 2017, and was terminated on
August 21, 2017. On September 25, 2017, plaintiff filed a
complaint against Same Day and one of its managers in the Superior
Court. The complaint asserted that the manager made "sexually
provocative comments about plaintiff's body" and subjected her to
a "hostile work environment based on her sex and sexual
orientation." Plaintiff also alleged that her work performance
was unfairly criticized and she was fired because she rejected the
manager's advances. Thus, plaintiff contended that the manager
and Same Day violated New Jersey's Law Against Discrimination
(LAD), N.J.S.A. 10:5-1 to -49, and she sought damages, including
lost wages, emotional distress, and attorney's fees.
In response, Same Day and the manager moved to dismiss the
complaint and compel arbitration. The trial court heard oral
arguments and, on January 19, 2018, entered an order directing
plaintiff to arbitrate her claims and dismissing the complaint.
The court stated its reasons for the ruling on the record. The
court explained that while the last sentence of the Arbitration
Agreement "doesn't make sense," in at least two other places the
agreement stated that arbitration was plaintiff's sole remedy and
that plaintiff waived her right to a jury trial. The trial court
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also reasoned that an ordinary person reading the Arbitration
Agreement would understand that she or he was agreeing to
arbitrate. Moreover, the agreement advised plaintiff to consult
with someone who could explain its terms if she had any questions.
II.
Plaintiff appeals from the January 19, 2018 order. She argues
that the trial court erred because (1) the Arbitration Agreement
was unclear and ambiguous; (2) there was no consideration for the
agreement; and (3) plaintiff did not get any advice concerning its
meaning and, therefore, signed the agreement without understanding
it. We are not persuaded by these arguments, because (1) the
Arbitration Agreement unambiguously stated multiple times that
plaintiff agreed to give up her right to bring a claim in court
and, instead, agreed to arbitrate any disputes concerning her
employment or the termination of her employment; (2) the agreement
was clearly presented as a condition of her employment; and (3)
plaintiff decided to not "consult with a person of [her] choosing,
including an attorney, before signing" the agreement.
We begin our analysis by identifying our standard of review
and the applicable law. The validity of an arbitration agreement
is a question of law, which we review de novo. Atalese v. U.S.
Legal Servs. Grp., L.P., 219 N.J. 430, 445-46 (2014); Barr v.
Bishop Rosen & Co., 442 N.J. Super. 599, 605 (App. Div. 2015).
5 A-2374-17T3
The Arbitration Agreement signed by plaintiff states that it
is governed by "the Federal Arbitration Act and pursuant to New
York law." The Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16,
applies to
[a] written provision in . . . a contract
evidencing a transaction involving commerce to
settle by arbitration a controversy thereafter
arising out of such contract or transaction
. . . .
[9 U.S.C. § 2.]
Here, plaintiff is a New Jersey resident and Same Day is a
company involved in commerce. Same Day does not expressly state
that its business involves interstate commerce, but plaintiff does
not dispute that the FAA governs. Neither party cites to New York
law. Instead, Same Day cites to the FAA and New Jersey case law
and plaintiff cites to New Jersey case law concerning the
enforceability of arbitration agreements. Because neither party
points to any conflict between the FAA and New York law or between
New Jersey and New York law on the issues relevant to this appeal,
we use the FAA and New Jersey law.
The FAA and "the nearly identical New Jersey Arbitration Act,
N.J.S.A. 2A:23B-2 to -32, enunciate federal and state policies
favoring arbitration." Atalese, 219 N.J. at 440. Under both the
FAA and New Jersey law, arbitration is fundamentally a matter of
contract. 9 U.S.C. § 2; NAACP of Camden Cty. E. v. Foulke Mgmt.
6 A-2374-17T3
Corp., 421 N.J. Super. 404, 424 (App. Div. 2011). "The FAA
'permits states to regulate . . . arbitration agreements under
general contract principles,' and a court may invalidate an
arbitration clause 'upon such grounds as exist at law or in equity
for the revocation of any contract.'" Atalese, 219 N.J. at 441
(quoting Martindale v. Sandvik, Inc., 173 N.J. 76, 85 (2002), and
9 U.S.C. § 2).
"An agreement to arbitrate, like any other contract, 'must
be the product of mutual assent, as determined under customary
principles of contract law.'" Id. at 442 (quoting NAACP of Camden
Cty. E., 421 N.J. Super. at 424). Accordingly, to be enforceable,
an arbitration agreement must be clear in stating that the parties
are agreeing to arbitrate and that the parties are agreeing to
give up the right to pursue a claim in court. In that regard, our
Supreme Court has explained:
Mutual assent requires that the parties have
an understanding of the terms to which they
have agreed. "An effective waiver requires a
party to have full knowledge of his legal
rights and intent to surrender those rights."
. . . "By its very nature, an agreement to
arbitrate involves a waiver of a party's right
to have her claims and defenses litigated in
court." . . . But an average member of the
public may not know –– without some
explanatory comment –– that arbitration is a
substitute for the right to have one's claim
adjudicated in a court of law.
. . . .
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No particular form of words is necessary to
accomplish a clear and unambiguous waiver of
rights. . . . Arbitration clauses –– and other
contractual clauses –– will pass muster when
phrased in plain language that is
understandable to the reasonable [person].
[Id. at 442, 444 (citations omitted).]
Here, the Arbitration Agreement was clear in stating that
plaintiff was agreeing to arbitrate any disputes concerning her
employment or termination of her employment with Same Day. In
that regard, the Arbitration Agreement expressly stated:
I agree that any and all controversies,
claims, or disputes with anyone (including the
Company and any employee, officer, director,
. . . of the Company . . .) arising out of,
relating to, or resulting from my assignment
and or employment with the Company or the
termination of my assignment or employment
with the Company . . . shall be subject to
binding arbitration . . . .
The agreement also was clear in stating that plaintiff was
giving up the right to pursue a jury trial or court action:
Disputes which I agree to arbitrate, and
thereby agree to waive any right to a trial
by jury, include any statutory claims under
state or federal law . . . .
Moreover, the agreement repeatedly stated that arbitration was the
exclusive mechanism for resolving disputes and that the
arbitration decision would be final and "binding."
8 A-2374-17T3
Plaintiff first argues that certain sentences in the
agreement were unclear and ambiguous thereby making the entire
agreement incomprehensible. In support of that argument,
plaintiff points to several parts of the Arbitration Agreement and
argues that the language used was vague or ambiguous. In
particular, plaintiff highlights the last sentence of the
agreement, which states: "I am agree to waive my voluntarily and
knowingly, and free from any duress or coercion whatsoever to a
trial by a trial judge or a jury as well as my right to participate
in a class or collective action." Plaintiff also points out that
the agreement incorrectly cites to a statute as "Title VII of the
Civil Rights Acts of 19866," and that the agreement contained
undefined terms such as "PEO" and "Rules." Finally, plaintiff
argues that the agreement does not explain the difference between
arbitration and a trial by jury, including the difference in
discovery, nor does the agreement explain the procedure for
appellate review of an arbitrator's decision.
While several sentences in the Arbitration Agreement are
poorly drafted, those sentences do not make the agreement ambiguous
because the remainder of the document is clearly written. In that
regard, it expressly states that plaintiff is agreeing to arbitrate
any employment dispute and is giving up the right to bring a claim
in court. Indeed, out of the six paragraphs of the full-page
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Arbitration Agreement, plaintiff points to several poorly written
sentences. The remainder of the Arbitration Agreement is clear in
explaining that plaintiff was agreeing to arbitrate. The poorly
written sentences, moreover, cannot be read to suggest that
arbitration was not the exclusive forum. At best, those sentences
fail to reiterate that plaintiff was agreeing to voluntarily and
freely waive her right to trial by a jury or a judge, and to pursue
a class action.
There also is no support in the record for plaintiff's second
argument that there was no consideration for the Arbitration
Agreement. Plaintiff was hired on June 6, 2017. That same day,
plaintiff was advised to log on to a website to review and
electronically sign several forms to complete her employment
application. Plaintiff acknowledges that she logged on to the
website, reviewed the documents, and signed the Arbitration
Agreement. An offer of employment or continued employment is
adequate consideration for an arbitration agreement. Martindale,
173 N.J. at 86. That plaintiff was offered the job before signing
the Arbitration Agreement several hours later is not material on
this record.
Finally, there is no support for plaintiff's last argument
that she was rushed into signing the Arbitration Agreement and,
therefore, did not understand it. The Arbitration Agreement
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expressly advised plaintiff that she had the right to consult with
"a person of [her] choosing, including an attorney, before signing
the" agreement. Plaintiff does not identify anyone from Same Day
who allegedly rushed her into signing the Arbitration Agreement.
Instead, plaintiff acknowledges "that the [A]rbitration
[A]greement states that I had a right to speak to a person of my
choosing, including an attorney, before signing the document.
However, I had no time to do that, nor did I have funds to hire
an attorney." Thus, plaintiff's certification admits that she was
the one who decided that she had no time to consult with anyone
and no funds to hire an attorney.
In short, although the arbitration agreement in this case was
not a well-crafted document, it was sufficiently clear in
explaining that plaintiff was agreeing to arbitrate and that she
was giving up her right to pursue a claim in court. Thus, by
dismissing her complaint and directing arbitration, plaintiff will
be able to pursue her claim in the forum she agreed to; that is,
an arbitration.
Affirmed.
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