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Joseph Blumert v. Wells Fargo and Co.

August 15, 2011

JOSEPH BLUMERT, PLAINTIFF-APPELLANT,
v.
WELLS FARGO AND CO., WELLS FARGO FINANCIAL, GINO CAMMAROTA AND LAURA PRINZO, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-3495-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 3, 2011

Before Judges Espinosa and Skillman.

Plaintiff Joseph Blumert appeals from an order that dismissed his complaint and compelled arbitration of his claims against his former employer, defendant Wells Fargo, and certain Wells Fargo employees, defendants Gino Cammarota and Laura Prinzo. For the reasons that follow, we affirm.

Plaintiff, a college graduate, was twenty-three years old when he became employed by Wells Fargo in late May 2003. Blumert was terminated from his employment in June 2009 and filed his complaint in October 2009. Each of the twelve counts in the complaint asserted claims directly related to his employment and termination: defamation (count one), defamation per se (count two), fraud (count three), negligent misrepresentation (count four), breach of implied covenant of good faith and fair dealing (count five), common law wrongful termination/breach of termination policies (count six), common law wrongful termination/conflict of interest (count seven), intentional infliction of emotional distress (count eight), violation of the New Jersey Law Against Discrimination, (LAD), N.J.S.A. 10:5-1 to -49, based upon a failure to provide a reasonable accommodation for a temporary disability (count nine), violation of the LAD (aiding and abetting) (count ten), unlawful denial of temporary disability benefits (count eleven), and vicarious liability of an employer for an employee's act (count twelve).

Defendants filed answers and motions to dismiss the complaint pursuant to R. 4:6-2(e) on the grounds that an arbitration clause contained in plaintiff's employment agreement (the Agreement) required the submission of plaintiff's claims to arbitration. Defendants' motions were supported by a certification by Cammarota, accompanied by a copy of the one-page Agreement, dated May 27, 2003. Paragraph 2 of the Agreement reads:

Your employment is at will. This means that either Employee or Employer may terminate your employment at any time for any reason or for no reason. The fact that Employer voluntarily agrees to arbitrate employment related claims shall not be construed to undermine the parties' at will relationship. It is contemplated that either party will provide one week's written notice prior to termination of employment. The payment by Employer of one week's annual salary shall be equivalent to and in lieu of the one week notice provision. No notice shall be required by either party during the first ninety (90) days of employment, nor shall notice be required if you are discharged for misconduct or if you work an average of 30 hours per week or less.

The following clause was prominently featured, in all capital letters, above the signature line:

I AGREE TO SETTLE ANY AND ALL CLAIMS OR CONTROVERSIES ARISING OUT OF OR RELATED TO MY APPLICATION OR CANDIDACY FOR EMPLOYMENT, EMPLOYMENT, OR TERMINATION OF EMPLOYMENT WITH THE COMPANY EXCLUSIVELY BY FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR.

Plaintiff's name, signature and social security number appear immediately below this clause.

In his certification, Cammarota, a District Manager for Wells Fargo Bank, states he personally presented the Agreement to plaintiff on his first day of employment. He certified further that he "reviewed each and every paragraph of the Agreement with Mr. Blumert, including the arbitration clause, and gave him the opportunity to ask any questions." Then, he "asked Mr. Blumert to read through the document on his own, and afforded him a second opportunity to seek clarification of any of the provisions contained therein, before he affixed his signature." He stated further, "Mr. Blumert advised [him] that he understood and accepted all the terms of the Agreement, and then signed and dated the document on May 27, 2003."

Plaintiff filed a certification in opposition. He stated that Cammarota gave him a stack of documents and told him "they must be signed and sent to the Human Resources Department within twenty-four (24) hours, case closed." He denied that Cammarota had provided a thorough explanation of any of the forms, stating:

The true nature of this process was "no signature, no employment." At no time was I told that an arbitration process of any kind was included. At no time was the status of my legal rights ever explained to me, including any concept that I would be waiving the litigation of all potential legal ...


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