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Peters v. DPT Lakewood

December 13, 2007

NOREEN M. PETERS, PLAINTIFF-RESPONDENT,
v.
DPT LAKEWOOD, INC., LISA M. SIKO AND ALBERT DIFRANCESCO, DEFENDANTS-APPELLANTS.



On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3926-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 7, 2007

Before Judges Skillman, Winkelstein and Yannotti.

In 2001, plaintiff's former employer was acquired by defendant DPT Lakewood. After the acquisition, DPT Lakewood required plaintiff to sign a form which acknowledged that she had read and understood a document called DPT's "Dispute Resolution and Arbitration Policy." This document states in pertinent part:

[A]ny and all disputes, claims, (whether tort, contract, statutory or otherwise) and/or controversies (including any grievance or dispute arising out of the application or interpretation of this policy) which relate, in any manner, to your employment with DPT Lakewood, Ltd. shall be submitted to final and binding arbitration under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. [Emphasis added.]

In 2006, DPT terminated plaintiff. Plaintiff subsequently brought this action against DPT and two employees in its human resources department, claiming that she had been terminated in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, because she suffers from a disability called bipolar disorder.

Defendants filed a motion to require plaintiff to submit her claim to arbitration, relying upon the DPT Dispute Resolution and Arbitration Policy distributed to plaintiff when DPT acquired the company. Plaintiff filed a certification in opposition to the motion, which stated:

During my employment with DPT, no employee of DPT or anyone else ever informed me, or provided me with any document asserting that DPT's interpretation of the Dispute Resolution and Arbitration Policy at issue was that it required arbitration of disputes arising out of termination of employment with DPT.

The trial court denied the motion, concluding that the DPT Dispute Resolution and Arbitration Policy did not clearly and unmistakably state that claims by a former employee arising out of a termination of employment must be submitted to arbitration, and that in the absence of such a clear and unmistakable expression, plaintiff was entitled to pursue her LAD claim in a judicial forum.

We granted defendants' motion for leave to appeal the order denying their motion to compel arbitration. We now affirm that order.

A provision in an application for employment, employment contract or employee handbook that requires an employee to arbitrate any claim, including a claim under the LAD arising out of a termination of employment, is enforceable. See Martindale v. Sandvik, Inc., 173 N.J. 76, 83-94 (2002). However, the provision must "clearly and unmistakably" express the requirement that an employee submit such a claim to arbitration. Garfinkel v. Morristown Obstetrics & Gynecology Assocs., 168 N.J. 124, 136 (2001) (quoting Red Bank Reg'l Educ. Ass'n v. Red Bank Reg'l High Sch. Bd. of Educ., 78 N.J. 122, 140 (1978)).

Therefore, the question presented by this appeal is whether the DPT Dispute Resolution and Arbitration Policy "clearly and unmistakably" required plaintiff to submit to arbitration any claim under the LAD arising out of a termination of her employment.

The employee arbitration provision contained in the DPT Dispute Resolution and Arbitration Policy is similar to the one involved in Quigley v. KPMG Peat Marwick, LLP, 330 N.J. Super. 252 (App. Div. 2000), which we held did not apply to a LAD claim arising out of a ...


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