December 13, 2007
NOREEN M. PETERS, PLAINTIFF-RESPONDENT,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 termination of employment. That employee arbitration provision stated:
Any claim or controversy between the parties arising out of or relating to this Agreement or the breach thereof, or in any way related to the terms and conditions of the employment of [plaintiff] by [defendant], shall be settled by arbitration under the laws of the state in which [plaintiff's] office is located. [Id. at 257.]
We concluded that this provision did not clearly and unmistakably require an employee to arbitrate a LAD claim arising out of a termination of employment, because it did not specifically refer to "statutory claims arising out of and redressable by the LAD or other discrimination laws[,]" or to "disputes arising from 'plaintiff's termination.'" Id. at 272. In concluding that this provision did not require an employee to arbitrate a LAD claim arising out of a termination of employment, we stated:
Plaintiff did not agree to arbitrate "any dispute" between plaintiff and defendant arising out of "termination" of employment.
The arbitration clause refers to claims or controversies arising out of the agreement, or breach thereof, or concerning the terms and conditions of employment, suggesting that a question concerning the meaning of the agreement language, or a dispute concerning the enforcement of a term or condition of employment was of the type of claim subject to arbitration. If defendant wanted to enter into an agreement to bind plaintiff to arbitration under all circumstances, it should have written an inclusive arbitration clause. [Id. at 273 (emphasis added).]
In Garfinkel, supra, which involved an employee arbitration provision that, as in Quigley, did not specifically refer to a claim based on either statutory rights or a claim arising out of termination of employment, the Court also held that the arbitration clause did not clearly and unmistakably require an employee to arbitrate a claim under the LAD arising out of a termination of employment:
The [arbitration] clause states that "any controversy or claim" that arises from the agreement or its breach shall be settled by arbitration. That language suggests that the parties intended to arbitrate only those disputes involving a contract term, a condition of employment, or some other element of the contract itself. . . .
[T]he policies that support the LAD and the rights it confers on aggrieved employees are essential to eradicating discrimination in the workplace. The Court will not assume that employees intend to waive those rights unless their agreements so provide in unambiguous terms. . . . To pass muster, . . . a waiver-of-rights provision should at least provide that the employee agrees to arbitrate all statutory claims arising out of the employment relationship or its termination. [168 N.J. at 134-35 (emphasis added).]
In a subsequent decision, Martindale, supra, the Court held that an employee arbitration provision which stated, "I agree to waive my right to a jury trial in any action or proceeding related to my employment[,]" and "I agree that all disputes relating to my employment with [the employer] or termination thereof shall be decided by an arbitrator . . .[,]" 173 N.J. at 81-82 (emphasis added), clearly and unmistakably required the employee to arbitrate a LAD claim arising out of the termination of her employment, id. at 94-97. In reaching this conclusion, the Court stated:
Unlike the arbitration provision contained in Garfinkel . . . , the arbitration provision here does not contain any limiting references. Its wording provided plaintiff with sufficient notice at the time she signed the agreement that all claims relating to employment with and termination from [the employer] would be resolved through arbitration.
[Id. at 96 (emphasis added).]
DPT argues that even though the arbitration provision contained in the DPT Dispute Resolution and Arbitration Policy does not expressly refer to a claim arising out of a termination of employment, it does apply to "any claims . . . which relate in any manner, to your employment[.]" DPT contends that, under the plain language of this provision, "termination from employment relates to employment." However, the arbitration provision involved in Quigley required arbitration, in language similar to the DPT arbitration provision, of "any claim . . . in any way related to the terms and conditions of the employment[.]" 330 N.J. Super. at 257. The court in Quigley concluded that such language did not clearly and unmistakably require arbitration of a claim arising out of a termination of employment, because "there is no mention in the clause of arbitrating disputes arising from 'plaintiff's termination.'" Id. at 272. We perceive no significant difference between the "in any way related to the terms and conditions of the employment" language of the arbitration provision involved in Quigley, which the court held did not require arbitration of a claim arising out of a termination of employment, and the "which relate, in any manner, to your employment" language contained in the DPT arbitration provision.
Our conclusion that the DPT Arbitration and Dispute Resolution Policy does not clearly and unmistakably inform an employee that a LAD claim arising out of a termination of employment must be arbitrated is reinforced by the two sentences immediately preceding the arbitration provision. Those sentences state:
The Company encourages its employees to resolve internally any dispute, which may arise. If an internal dispute resolution procedure does not resolve your concern, however, the Company believes that neutral arbitration provides a fair and effective alternative to litigating the matter by a court or by a jury.
We believe that the term "internal dispute" could be reasonably construed to refer solely to a dispute occurring during the course of an ongoing employment relationship, which would not extend to the employer's decision to terminate the employee. In fact, there is no indication that DPT has any internal dispute resolution procedure by which an employee could obtain an informal, internal review of management's decision to terminate his or her employment. Therefore, an employee such as plaintiff could reasonably conclude that even though the internal dispute resolution and arbitration procedures mandated by DPT's Dispute Resolution and Arbitration Policy would apply to a LAD claim for an alleged hostile work environment based on a disability or other discriminatory grounds, see Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 603-04 (1993), it would not apply to a LAD claim arising out of a termination of employment.
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