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Cowher v. Carson & Roberts Site Construction & Engineering

November 19, 2009

MYRON COWHER, PLAINTIFF-APPELLANT,
v.
CARSON & ROBERTS SITE CONSTRUCTION & ENGINEERING, CO., INC., GARY MERKLE, JAY UNANGST AND NICK GINGERELLI, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Sussex County, L-867-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 2, 2009

Before Judges Reisner and Chambers.

Plaintiff Myron Cowher appeals from a trial court order dated March 6, 2009 dismissing his complaint and requiring plaintiff to submit his Law Against Discrimination (LAD) claim to binding arbitration. We reverse the order on appeal, reinstate the complaint and remand this matter to the trial court.

I.

These are the most pertinent facts. Cowher began his employment with Carson & Roberts Site Construction and Engineering, Co., Inc. (Carson & Roberts) as a truck driver in April 2006. In February 2007, Cowher was given a copy of an employee manual and signed an acknowledgment form confirming that he had received it. The manual provided in pertinent part:

Carson & Roberts hopes that difference[s] will not arise. If they do, employees are encouraged to discuss them with their managers or the Human Resources department. If differences cannot be resolved informally within the Company, then they will be resolved through binding arbitration before a neutral panel of arbitrators. The Company and its employees agree as a condition of employment to be bound by the mutual agreement to arbitrate claims.

The acknowledgment form provided:

I have read and understand the Company Employee Manual.

I acknowledge that all formal disputes will be resolved by final and binding arbitration as set forth in the Employee Manual.

Before the trial court, the parties submitted conflicting certifications concerning the circumstances surrounding the signing of the acknowledgment form. Cowher attested that he was not given an opportunity to read the manual before signing the acknowledgement. According to Cowher's certification, Jay Unangst, his manager, handed him the form and told him to sign it, "indicating that it simply stated that I had received the employee manual." Cowher stated that Unangst waited for about ten seconds until Cowher signed the acknowledgement "and then he walked off with it."

Unangst certified that it was his usual practice to inform employees to read the manual before signing the form. He attested that he also advised employees that they could either take the manual home or take company time to read it in the management office. He recalled that Cowher heeded his advice and sat in the management office to read through the manual. He denied placing any pressure on Cowher to sign the form.

On December 18, 2008, Cowher filed a complaint against Carson & Roberts and several of its managers, alleging that beginning in January 2007, the managers had subjected him to religious slurs, creating a hostile work environment in violation of the LAD, N.J.S.A. 10:5-1 to -49. Cowher alleged that despite his repeated complaints, the harassment continued ...


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