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Great Western Mortg. Corp. v. Peacock

April 3, 1997





On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 96-628)


GARTH, Circuit Judge

Argued Monday, December 16, 1996

Opinion filed April 3, 1997


This appeal presents the issue of whether a district court, pursuant to the Federal Arbitration Act (FAA), *fn1 should compel arbitration of a sexual harassment claim based on New Jersey's Law against Discrimination.

On August 8, 1994, the plaintiff, Michele Peacock, a resident of New Jersey, applied for work as a mortgage consultant at defendant Great Western Mortgage Corporation, which was incorporated in Delaware. At the time of her application, but before she had been employed, she signed a Certification agreeing:

to submit any dispute related to my employment, or the termination of my employment, to final and binding arbitration (thus waiving any right to pursue any other administrative and/or legal proceeding), and, as a condition of my employment, I agree to sign Great Western's Arbitration Agreement upon commencement of my employment, and to abide by the Arbitration Agreement and Great Western's Binding Arbitration Policy and Procedures. *fn2

On September 1, 1994, Great Western employed Peacock and she began work. Thereafter, on September 26, 1994, Peacock signed a more detailed form entitled "Great Western Financial Corporation and Affiliates Binding Arbitration Agreement" (Arbitration Agreement). The Agreement required arbitration of all employee discrimination claims, including statutory claims and claims based on sex. It provided for binding arbitration in all employment-related disputes, including:

all civil claims, excluding claims under the Workers' Compensation Act, but including, and not limited to, claims of employment discrimination on the basis of race, sex, age, religion, color, national origin, disability and veteran status (including claims under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act and any other local, state or federal law concerning employment or employment discrimination), claims based on public policy, statutory claims and claims against individuals or other entities. *fn3

The Agreement further provided that arbitration had to be initiated within one year after an event giving rise to a dispute, and that an employee involved in an arbitration could be represented by an attorney, at her own expense. Finally, the Agreement provided that the arbitrator could not award punitive or exemplary damages.

According to Peacock, sometime after she commenced employment she became the object of sexual harassment. She alleges that her supervisor at Great Western, William Belott, made unwelcome advances toward her and threatened reprisal in the event that she discussed his behavior with others. *fn4 In addition, she claims that the Branch Manager, Alice Morris, knew of Belott's advances but failed to take any action against him, and that Morris herself made inappropriate comments and suggestions. *fn5

Peacock retained counsel to represent her in pressing a claim for sexual harassment. *fn6 In May 1995 her attorney made Great Western aware of Peacock's complaints, and in August 1995 Great Western responded that after conducting an investigation, it "was unable to confirm" her allegations. Great Western advised Peacock that if she was not satisfied with the results of Great Western's investigation, she could "file a claim in arbitration, pursuant to the Binding Arbitration Agreement . . . dated 9/26/94." On August 23, 1995, Peacock's counsel filed for arbitration on Peacock's behalf.

Pursuant to the Arbitration Agreement, Great Western submitted the matter to JAMS/ENDISPUTE (JAMS), and on October 9, 1995, JAMS confirmed that it had received the request to arbitrate. *fn7 In the interim, however, Peacock retained another attorney, whose fees, apparently, were lower than the fees charged by Hannoch Weisman. On October 25, 1995, her new counsel informed Great Western that "we hereby withdraw all settlement offers and that we do not consent to arbitration of this matter." On November 8, 1995, pursuant to the New Jersey Law against Discrimination (NJLAD), N.J.S.A. 10:5-1 et seq., Peacock filed a complaint against Great Western and supervisors Belott and Morris. In the complaint, which was filed in the Superior Court of New Jersey, Peacock sought money damages as well as declaratory and injunctive relief. In its answer, filed on January 30, 1996, Great Western responded, inter alia, that the dispute came within the purview of a binding arbitration agreement and that Peacock had waived any right she might have had to a trial.

On February 1, 1996, Great Western filed a petition under the FAA in the District of New Jersey to compel arbitration and to stay the state proceedings. On April 9, 1996, the district court issued an Order compelling arbitration and granting the stay. *fn8

Peacock appeals from that order, contending 1) that the FAA does not apply to employment contracts; 2) that she did not waive her rights under NJLAD; 3) that because Great Western's Arbitration Agreement would deprive Peacock of a two-year statute of limitations, a right to discovery, and punitive damages, it is void as a matter of public policy; 4) that Great Western waived any right to arbitration that it might have had; and 5) that the district court erred in denying her motion for a jury trial under 9 U.S.C. Section(s) 4.

Great Western filed the petition to compel arbitration pursuant to 9 U.S.C. Section(s) 4, which provides:

A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under Title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement.

The district court had diversity jurisdiction over this case pursuant to 28 U.S.C. Section(s) 1332, and we have jurisdiction of this appeal pursuant to 28 U.S.C. Section(s) 1291. *fn9 The district court's decision is subject to plenary review. *fn10 We affirm.


Peacock argues first that the district court erred in compelling arbitration of her claim because the FAA does not apply to employment contracts. She maintains that she falls within the scope of the ...

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