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Jones v. Dish Network LLC

Superior Court of New Jersey, Appellate Division

November 26, 2013

THERESA JONES, Plaintiff-Respondent,
DISH NETWORK LLC and ERIC BURROUGHS, Defendants-Appellants.


Submitted November 19, 2013

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2748-12.

Jackson Lewis, L.L.P., attorneys for appellants (John M. Nolan, of counsel; Janet 0. Lee, on the brief).

Castronovo & McKinney, L.L.C., attorneys for respondent (Paul Castronovo, of counsel; Megan Frese Porio, on the brief).

Before Judges Reisner and Carroll.


Defendants Dish Network LLC (DISH) and Eric Burroughs appeal from an order entered by the Law Division on January 29, 2013, denying their motion to dismiss the complaint and compel arbitration, following an evidentiary hearing. We reverse.


On July 21, 2010, plaintiff, Theresa Jones, applied to DISH for a position as an installer of television equipment. Plaintiff is a high school graduate, with approximately thirty college credits. At the time plaintiff applied for this job, she was unemployed and homeless. Previously, she had worked in the industry since 1998 for companies such as Hot Wire Communications, Lucent Technologies, and Verizon. DISH extended a written offer of employment to plaintiff on November 17, 2010. The offer letter stated that her employment was contingent upon the completion of all required pre-employment paperwork, including a "Mandatory Arbitration of Disputes — Waiver of Rights Agreement" (the arbitration agreement). It also indicated that if plaintiff had any questions, she should contact her Human Resources representative, Kristen Kasper.

Plaintiff accepted the offer of employment, and began work on December 13, 2010. That day, plaintiff executed the one-page arbitration agreement, which provided that the parties agreed to submit their disputes to the American Arbitration Association (AAA), and waived the right to litigate them in court.

The arbitration agreement specifically provided:

In consideration of the Employee's employment by DISH Network ... as good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Employee and DISH Network agree that any claim, controversy and/or dispute between them, arising out of and/or in any way related to Employee's application for employment, employment and/or termination of employment, whenever and wherever brought, shall be resolved by arbitration.

The agreement also carved out certain exceptions to the arbitration requirement. Specifically, employee claims for statutory unemployment or worker's compensation benefits, and claims brought under ERISA (29 U.S.C. §1002(3)), were exempted from arbitration. Additionally, DISH retained the right to seek injunctive relief with respect to non-competition agreements, intellectual property, and confidential information, in any court of competent jurisdiction. Statutory claims of unlawful discrimination, however, were not exempted. The agreement referenced such claims, stating:

[N]othing in this Agreement shall require Employee to reimburse DISH Network for its attorney's fees and costs and arbitration expenses incurred in successfully defending any statutory claim of unlawful discrimination.
[Emphasis added.].

The Agreement additionally provided that "[t]he right to a trial, to a trial by jury, and to common law claims for punitive and/or exemplary damages are of value and are waived pursuant to this agreement."

Plaintiff was terminated from her employment in February 2012. In June 2012, she filed a complaint in the Law Division, in which she alleged that her supervisor, Burroughs, had sexually harassed her. Plaintiff contended that defendant terminated her employment in direct response to her complaint about the sexual harassment.

Plaintiff claimed that she was subjected to a hostile work environment due to her gender, and that the termination of her employment constituted unlawful retaliation in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49 (LAD). She sought compensatory and punitive damages, attorney's fees, costs of suit, interest and other relief. She also demanded a jury trial.

In lieu of filing an answer, defendants moved to compel arbitration of plaintiff's claims and dismiss her complaint. Defendants argued that plaintiff's LAD claims were clearly encompassed by the arbitration agreement and, therefore, plaintiff should be compelled to submit them to binding arbitration.

Plaintiff filed a certification in opposition. She stated that upon commencing her employment she was handed a stack of papers by a trainer employed by DISH, who told her just to sign them. Plaintiff also certified that she "did not carefully read the stack of papers." While she recalled completing tax and health benefit forms, she did not understand that she signed an arbitration agreement, or even know what arbitration was.

The judge heard oral argument on the motion on September 28, 2012, and concluded that an N.J.R.E. 104 hearing was necessary to develop the details of plaintiff's claim that she did not understand the import of the arbitration agreement.

The hearing took place on January 18, 2013. Plaintiff, age forty-three, testified to her history of employment in the industry since 1998. She stated that DISH'S trainer handed her the papers, told her to read through them, and sign them. Although the trainer did not impose any time limitation to review these documents, she "really didn't read through them, " nor did she have any questions for the trainer about them. The trainer did not tell her to consult a lawyer, or that she could take the documents home. On cross-examination, plaintiff admitted that she knew she would be bound by the terms and conditions of the documents that she signed. Further, she stated that even if she had known what arbitration was, she would have accepted the job anyway.

DISH'S Human Resources representative, Kristen Kasper, also testified at the hearing. She indicated that she conducted an orientation program for newly-hired employees, including plaintiff, on December 21, 2010. At this program she gave a Power Point demonstration, which included slides relating to the arbitration agreement.

The trial court issued a written decision on January 29, 2013, in which it concluded that plaintiff was not required to arbitrate her claims. The judge found credible plaintiff's testimony that she was given the documents and instructed to sign them, and that no explanation of the documents or their import was offered by the DISH representative. While the judge noted that plaintiff's economic circumstances at the time she accepted employment were "extreme, " they did not rise to the level of unequal bargaining power needed to invalidate the agreement. Nonetheless, the judge found the "fleeting reference" contained in DISH'S offer of employment constituted insufficient advance notice of the arbitration requirement, and that plaintiff was not informed of the breadth of the waiver she was granting when she signed the arbitration agreement on December 13, 2010. The judge also compared the arbitration provision that was upheld in Martindale v. Sandvik, Inc., 173 N.J. 76, 96 (2002), and in contrast found that the agreement here was "verbose and confusing, " employed legalistic language, and did not satisfy "DISH'S obligation to exact an unambiguous waiver by plaintiff." The court entered an order on January 29, 2010, denying defendants' motion.

On appeal, the parties essentially renew the arguments they raised before the trial court. Defendants argue that a valid arbitration agreement exists, and that it is sufficiently broad to encompass plaintiff's LAD claims based on wrongful termination or retaliation. Plaintiff counters that she did not knowingly agree to arbitration, and that the waiver of rights provision is ambiguous and confusing, and hence unenforceable.


We note initially that it is undisputed that the trial court's order of January 29, 2013 is a final order that may be appealed as of right pursuant to Rule 2:2-3(a). GMAC v. Pittella, 205 N.J. 572, 587 (2011). We review those legal determinations de novo. Hirsch v. Amper Fin. Services, LLC, 215 N.J. 174, 186 (2013) .

The issue whether the parties have agreed to arbitrate is a question of law for the court. Bd. of Educ. of Twp. of Bloomfield v. Bloomfield Educ. Ass'n, 251 N.J.Super. 379, 383 (App. Div. 1990) ("Whether the parties are contractually obligated to arbitrate a particular dispute is a matter for judicial resolution."), aff'd, 126 N.J. 300 (1991); Moreira Constr. Co. v. Twp. of Wayne, 9 8 N.J.Super. 57 0, 575 (App. Div.) ("[I]t is inescapably the duty of the judiciary to construe the contract to resolve any disagreement of the parties as to whether they have agreed to arbitrate[.]"), certif. denied, 51 N.J. 467 (1968).

Generally speaking, New Jersey "has recognized arbitration as a favored method for resolving disputes." Garfinkel v. Morristown Obstetrics & Gynecology Assocs., P.A., 168 N.J. 124, 131 (2001). Public policy "requir[es] a liberal construction of contracts in favor of arbitration." Alamo Rent A Car, Inc. v. Galarza, 306 N.J.Super. 384, 389 (App. Div. 1997) (citations omitted); see also Alfano v. BDO Seidman, LLP, 393 N.J.Super. 560, 575 (App. Div. 2007) ("As a general rule, courts have construed broadly worded arbitration clauses to encompass tort, as well as contract claims." (citations omitted)). Morever, mindful of the public policy favoring arbitration, we resolve ambiguity in contract language in favor of arbitration. Marchak v. Claridge Commons, Inc., 134 N.J. 275, 282 (1993).

At the same time, however, the policy favoring arbitration is "not without limits, " and "neither party is entitled to force the other to arbitrate their dispute" unless both parties agreed to do so. Garfinkel, supra, 168 N.J, at 132. "As a matter of both federal and state law, 'arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.'" Anqrisani v. Fin. Tech. Ventures, L.P., 402 N.J.Super. 138, 149 (App. Div. 2008) (quoting AT&T Techs., Inc. v. Commc'ns Workers of Am., 475 U.S. 643, 648, 106 S.Ct. 1415, 1418, 89 L.Ed.2d 648, 655 (1986)). We therefore rely on basic contract principles to interpret an arbitration clause. Alamo Rent A Car, supra, 306 N.J. Super, at 390-91.

Courts examine the specificity of an arbitration clause's language to determine its scope. Thus, an arbitration clause that referred to claims arising out of an employment agreement, but did not expressly refer to statutory claims, was found not to compel arbitration of a claim under the LAD. Garfinkel, supra, 168 N.J, at 134-35. On the other hand, a clause that pertained to "any action or proceeding relating to [the plaintiff's] employment, " was broad enough to cover statutory claims. Martindale, supra, 173 N.J, at 96. As long as the language of the arbitration provision is sufficiently broad, it need not explicitly identify each statutory claim to be covered. See ibid.

Comparing the arbitration agreement in this case to those at issue in Garfinkel and Martindale, we conclude that the language here qualifies as a waiver of plaintiff's statutory right to a judicial forum pursuant to the LAD. Unlike Garfinkel, the arbitration agreement in this case was not limited to disputes arising out of the employment agreement itself. Rather, similar to Martindale, the arbitration provision here is broadly written, and covers "any claim, controversy and/or dispute . . . arising out of and/or in any way related to Employee's application for employment, employment and/or termination of employment." While certain exceptions are enumerated, they are limited and clearly delineated, and do not render the agreement ambiguous. Moreover, the agreement contained affirmative language waiving plaintiff's right to a jury trial, which bolsters a finding that, had she read it, she would have been on notice that her claims would be resolved through arbitration. Martindale, supra, 173 N.J, at 96.

Having thus concluded that the arbitration agreement here is sufficiently broad to encompass plaintiff's claims, we next turn to plaintiff's remaining challenges to its enforceability. Having reviewed the record, we conclude that plaintiff's arguments, that the arbitration agreement is not enforceable because it is ambiguous, and that neither the agreement nor its import were properly explained to her, fail both factually and legally.

Plaintiff's contention that, on her first day of employment she was handed a stack of documents and told to sign them, without further explanation of their contents, falls far short of alleging either fraud or an unenforceable adhesion contract. As plaintiff readily concedes, a potential employee's need for a job does not constitute sufficient pressure to invalidate an arbitration agreement. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 33, 111 S.Ct. 1647, 1655, 114 L.Ed.2d 26, 41 (1991); Martindale, supra, 173 N.J, at 90 (2002); Young v. Prudential Ins. Co. of Am., 297 N.J.Super. 605, 621 (App. Div.) certif. denied, 149 N.J. 408 (1997). In the absence of such fraud or misconduct, "[a] party who enters into a contract in writing ... is conclusively presumed to understand and assent to its terms and legal effect[, ]" Rudbart v. N. Jersey Dist. Water Supply Comm'n, 127 N.J. 344, 353, cert, denied sub nom., First Fidelity Bank, N.A. v. Rudbart, 506 U.S. 871, 113 S.Ct. 203, 121 L.Ed.2d 145 (1992), and a signature is taken as a reliable indicator of assent to a contract. See Leodori v. CIGNA Corp., 175 N.J. 293, 306-07, cert, denied, 540 U.S. 938, 124 S.Ct. 74, 157 L.Ed.2d 250 (2003).

DISH'S letter offering plaintiff employment specifically placed her on notice that her hire was contingent on signing pre-employment paperwork, and, particularly, a "Mandatory Arbitration of Disputes — Waiver of Rights Agreement." A review of the agreement itself shows that it was a stand-alone document, as opposed to an arbitration clause buried within some larger document. Its heading, "Arbitration Agreement" "Mandatory Arbitration of Disputes — Waiver of Rights Agreement" was prominently featured in capitalized, bold print, and unlikely to be overlooked by someone signing it. See Rockel v. Cherry Hill Dodge, 368 N.J.Super. 577, 585 (App. Div.) certif. denied, 181 N.J. 545 (2004) ("The size of the print and the location of the arbitration provision in a contract has great relevance to any determination to compel arbitration, particularly when . . . the provision is contained in a contract of adhesion.").

Contrary to plaintiff's argument that she was simply handed the paperwork and told to sign it, her testimony at the hearing clearly indicates that she was also advised to read it. However, she declined to take the time to do so. Rather, she signed the agreement, and had no questions about it. A party's failure "to read a contract does not excuse performance unless fraud or misconduct by the other party prevented one from reading." Gras v. Assocs. First Capital Corp., 34 6 N.J.Super. 42, 56 (App. Div. 2001) (internal quotation marks and citations omitted), certif. denied, 171 N.J. 445 (2002). See also Riverside Chiropractic Group v. Mercury Ins. Co., 404 N.J.Super. 228, 238 (App. Div. 2008) ("The fact that plaintiff did not read the contract before [signing it] is immaterial.").

DISH cannot be faulted for failing to ask plaintiff if she understood the stand-alone arbitration agreement, or if she desired to take it home for further review. Young v. Prudential Ins. Co. of Am., Inc., supra, 297 N.J. Super, at 619 (holding that defendant had "[n]o obligation [to alert plaintiff to an arbitration clause in a contract] . . . where the provision is not hidden"). Nothing prevented plaintiff from requesting an explanation of the arbitration agreement — she simply declined to request one. Although not critical to our determination, plaintiff testified that she would have signed the papers, which included the arbitration agreement, even if given more time to consider them. Thus, no amount of additional time or explanation would have changed the result.

In summary, we conclude that the arbitration agreement is sufficiently clear, unambiguously worded, satisfactorily distinguished from the other documents signed by plaintiff, and drawn in suitably broad language to provide plaintiff with reasonable notice of the requirement to arbitrate claims related to her employment, including her retaliation and discrimination claims. We therefore reverse the trial court's order, dismiss plaintiff's complaint, and direct that plaintiff's claims be sent to arbitration, as required under the parties' arbitration agreement.


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