On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-0559-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 1, 2010
Before Judges Carchman and Lihotz.
Plaintiff Basil Okpara, a self-represented litigant, appeals from a March 6, 2009 Law Division order denying his motion to vacate an arbitration award. As a sanction for misconduct, the arbitrator had dismissed plaintiff's racial and national origin discrimination complaint filed against defendants Sunoco, Inc., d/b/a Mascot Petroleum (Sunoco), and Sunoco employees Dennis Green, Joseph Lorenzo, Robert Howard and Roger Benton, finding plaintiff submitted forged documents and testified falsely during his deposition to create "delay, obfuscation, fabrication, and contradiction, all with the apparent purpose of misleading th[e] tribunal's search for the truth."
We have considered the arguments in the briefs in light of the record and applicable legal standards. We affirm.
On August 9, 1995, plaintiff, an African-American, was hired by Sunoco as an attendant assigned to the Stockton Service Plaza location on the New Jersey Turnpike. During the years after he was hired, plaintiff received an award for "superior customer service" and was recognized for his participation in Sunoco's charitable efforts during this time.
On April 9, 2003, plaintiff was promoted to Shift Manager. From that date, plaintiff alleges he was subjected to various forms of racial discrimination by General Manager Green, Assistant General Manager Lorenzo and Shift Managers Howard and Benton, all Caucasians, who "waged a campaign of terror" against him because he "was going to begrime the all white management makeup in all of Sunoco's gas stations on the New Jersey Turnpike."
In July 2004, plaintiff retained legal counsel, who wrote to Sunoco in an effort to address the "hostile work environment" to which plaintiff was subjected. On November 6, 2004, plaintiff's employment was terminated as a result of excessive discipline.
On July 30, 2003, shortly after being promoted, plaintiff executed an agreement to participate in Sunoco's Mascot Dispute Resolution Program (DRP). The DRP covered "any and all employment-related legal disputes . . . or claims arising out of, or relating to an employee's employment or cessation of employment[.]" The DRP provided these disputes "shall be settled exclusively by final and binding arbitration before a neutral, third party arbitrator . . ." and that the dispute "must be submitted to mediation before it is submitted to arbitration[.]" Under the DRP, the arbitrator was afforded "plenary power to conduct all aspects of the arbitration proceeding, including . . . to decide all evidentiary disputes and . . . to process an appropriate sanction . . . ." Any award rendered, pursuant to the DRP, "shall be enforceable and subject to the Federal Arbitration Act [(FAA) 9 U.S.C.A. § 1 to -16], and the Uniform Arbitration Act of Pennsylvania [(UAAP), 42 Pa. Cons. Stat. § 7301 -7320 (2010)], regardless of the state in which arbitration is held or the substantive law applied in the arbitration." Finally, "[e]ither party may appeal the Arbitrator's decision to a court in accordance with the appeal procedures of the [FAA] . . . or the [UAAP][.]"
Plaintiff contends he did not voluntarily sign the DRP. He explains Green gave him a form and told him to sign it. When plaintiff attempted to read the form, Green became impatient and told him its terms were a condition of his continued employment -- he would be terminated if he refused to sign. Plaintiff states he signed the DRP without being allowed to read its terms.
On January 18, 2005, plaintiff filed a Law Division complaint against defendants, seeking $25,000,000, for alleged discrimination, retaliatory termination, and intentional and negligent infliction of emotional distress. In his complaint, plaintiff suggests: he was denied a promotion in 2000 in favor of a white male; Lorenzo was promoted to Shift Manager rather than plaintiff in 2003; Green frequently used racial slurs to address plaintiff; and on one occasion belittled his intelligence; and generally alleged white employees were accorded prudential treatment. Plaintiff also contended he was: unfairly or erroneously cited for disciplinary infractions while a white shift manager, who was equally responsible, was not disciplined;*fn1 required to attend a managers meeting while on vacation without remuneration; and terminated after he complained of Green's discriminatory conduct.
Defendants moved for dismissal of plaintiff's complaint and entry of an order mandating that the matter be resolved through mediation and arbitration, as required by the DRP. Defendants' request was granted on May 19, 2005.
Following the parties' failed attempt at mediation, the matter proceeded to arbitration before a single arbitrator. During the period designated for discovery, defendants sent plaintiff a document request seeking, among other things, plaintiff's 2005 income tax returns and documents relating to his employment and income following his November 2004 termination.
On October 25, 2006, each party's counsel participated in a conference call to address compliance with discovery demands, scheduling depositions and other procedures. An October 26, 2006 letter from the arbitrator provided that plaintiff would produce the balance of documents demanded by defendants before his deposition, which was scheduled for November 6, 2006. When plaintiff's compliance was not forthcoming, his deposition was canceled, and defendants contacted the arbitrator to seek enforcement. The arbitrator held another conference call to resolve the impasse.
During this December 6, 2006 conference call, plaintiff's counsel represented that, following his termination, plaintiff could not find employment, so he formed his own exporting company, RICO International (RICO). Counsel asserted plaintiff had no income other than unemployment compensation, as RICO suffered a loss in 2005. Counsel also stated plaintiff had not yet filed his 2005 tax returns. The arbitrator directed plaintiff to file his tax returns and supply them to defendants.
On December 23, 2006, plaintiff produced federal tax Form 1040X for 2005, which included a Schedule C showing RICO had a $27,000 loss that year. Defendants had separately requested copies of plaintiff's tax filings from the Internal Revenue Service (IRS). For the 2005 calendar year, the IRS supplied a transcript showing plaintiff had submitted a Form 1040EZ on December 6, 2006. The form makes no mention of a business and reflects gross earned income of less than $6000.
Plaintiff was deposed on May 30, 2007. Issues surrounding his post-termination income and employment were explored. Plaintiff testified he had not received income from RICO prior to 2005 and, at the time of the deposition, the company was no longer operating. Defendants confronted plaintiff with his 1995 Sunoco employment application, which included a representation that plaintiff earned $425 per week while employed by RICO from 1994 to 1995. Plaintiff testified during that time he worked for "a different company named RICO" and chose to use that name when he formed his business. He could not remember who owned the other RICO or provide any information that would aid in verifying his statements.
Next, Sunoco produced an October 12, 2005 bankruptcy petition filed by "Chima B. Okpara." Plaintiff admitted he had filed bankruptcy in 2005.*fn2 The statement of financial affairs listed RICO as plaintiff's newly formed company, with earnings of approximately $2500 a month. Plaintiff suggested the statement of earnings represented "an expectation" of monies to be received from an anticipated transaction. Plaintiff also asserted RICO may have been formed in "the 90s" but it did not actually conduct business until after his termination from Sunoco. When defendants produced a copy of a lawsuit commenced prior to the bankruptcy filing to recover the monies plaintiff described as "an expectation," his retort was "he knew [he] would not be receiving any income from it" when he signed his bankruptcy petition.
In addition to the 2005 bankruptcy filing, plaintiff admitted he had filed bankruptcy in 1996 and 1997. The 1996 filing was under the name "Chima Okpara did business as RICO International." The "Statement of Financial Affairs" filed with the 1996 petition stated plaintiff "[d]id business as Rico International exporting commodities to Africa[,]" and listed his gross income from this source as "1996 - loss (service); 1995 -$40,000; 1994 - $35,000." RICO was also referenced in the list of creditors, including an obligation to Plastex International, a company that had engaged in transactions with RICO in 1994. Plaintiff's 1997 petition listed the debtor as "Chima Okpara a/k/a Rico International." Defendants later discovered a fourth bankruptcy petition filed by plaintiff in 1998.
Defendants contacted the arbitrator by an August 28, 2007 letter and outlined the false and contradictory statements made by plaintiff under oath. Defendants sought a conference call to further discuss these deficiencies. After discussing the matter, it was agreed the deposition would resume to allow plaintiff the opportunity to clarify any misunderstandings. Defendants reserved the right to file appropriate motions.
The questions resumed, starting with the plaintiff's unfiled Form 1040X and his failure to disclose or produce the initially filed Form 1040EZ. Plaintiff insisted he had filed the 1040X, offered no explanation for why the IRS had no such record and suggested he may have filed the 1040EZ. Plaintiff was then questioned about his apparent misrepresentations regarding RICO's formation and business activity prior to 2005. Plaintiff insisted the entity received no income, yet he provided no explanation for the contrary statements contained in his bankruptcy petitions.
At the close of plaintiff's deposition, defendants moved to dismiss the complaint with prejudice, arguing plaintiff's lack of honesty was designed to perpetrate a fraud on the tribunal. Plaintiff refuted defendants' contentions, using some of the same statements offered at the deposition.
In a written decision, the arbitrator detailed the instances of misconduct, whereby plaintiff "flouted discovery orders[,] . . . produced false documents[,] testified falsely in ways that contradict clear and unambiguous assertions of documents that he submitted to other tribunals . . . [and] acted with utter contempt for the fact-finding function of this tribunal[,]" which prejudiced both defendants and the arbitrator. The arbitrator concluded that "under these circumstances," dismissal of plaintiff's claims was the appropriate sanction. Plaintiff moved before the Law Division to vacate the award.*fn3 The motion was denied and this appeal ensued.
Plaintiff's fifteen points presented on appeal can be distilled into these five arguments: the arbitrator evinced partiality and bias favoring Sunoco, while trivializing his contentions; defendants were culpable, as evidenced by their $5000 settlement offer; plaintiff's claims were not arbitrable, as the DRP was invalid; "the arbitrator and the trial court made several prejudic[ial] errors in their adjudication of the case," depriving him of his day in court; and ...