February 5, 2018
appeal from Superior Court of New Jersey, Law Division,
Bergen County, Docket No. L-2652-17.
D. Valenzano argued the cause for appellant (Mashel Law, LLC,
attorneys; Stephan T. Mashel, of counsel and on the briefs;
Peter D. Valenzano, on the briefs).
Jessica L. Sussman argued the cause for respondent Bergen
Logistics, LLC (Jackson Lewis PC, attorneys; Richard J. Cino,
of counsel; Jessica L. Sussman, on the brief).
L. Wu argued the cause for respondent Gregg Oliver (Margolis
Edelstein, attorneys; Michael R. Miller and Kyle L. Wu, of
counsel and on the brief).
Thaddeus P. Mikulski, Jr., attorney for amicus curiae
National Employment Lawyers Association of New Jersey, Inc.
(Thaddeus P. Mikulski, Jr. and Richard M. Schall, on the
Judges Accurso, O'Connor and Vernoia.
Milagros Roman appeals from an order dismissing her sexual
harassment and retaliation complaint against defendants
Bergen Logistics, LLC and Gregg Oliver. Because we are
convinced the court correctly determined the complaint should
be dismissed because plaintiff agreed to arbitrate her
claims, we affirm but modify the court's order to permit
plaintiff to pursue her punitive damages claims in
September 2015, Bergen Logistics hired plaintiff as a human
resources generalist. Oliver was Bergen Logistics's Human
Resources Director and plaintiffs immediate supervisor. He
terminated plaintiffs employment on December 30, 2015.
April 2017 Law Division complaint, plaintiff alleged Oliver
sexually harassed her and created a sexually hostile work
environment during her employment. She also alleged that
after she objected to his conduct and sexual advances, he
retaliated against her and terminated her employment. She
asserted causes of action against Bergen Logistics and Oliver
under the New Jersey Law Against Discrimination (LAD),
N.J.S.A. 10:5-1 to -49, and for intentional infliction of
moved to dismiss the complaint, asserting plaintiff was
obligated to arbitrate her claims pursuant to the arbitration
agreement she signed when hired in September 2015. In support
of their motion, defendants relied on the agreement, which
refers to plaintiff as "you" and Bergen Logistics
as the "Company, and provides in pertinent part that
"[a]s an express condition of plaintiffs
"hiring" and "continu[ed]" employment by
Bergen Logistics she agreed:
(i) all (past, present and future) disputes, controversies
and claims of any nature (whether under federal, state or
local laws and whether based on contract, tort, common law,
statute . . .) arising out of, involving, affecting or
related in any way to your . . . employment . . . and/or
termination of employment by or from Company, the conditions
of your employment, or any act or omission of Company or
Company's other employees shall be resolved exclusively
by final and binding arbitration before the American
Arbitration Association .... This Agreement covers all
employment matters, including but not limited to matters
directly or indirectly related to wrongful termination,
discrimination, harassment, retaliation (in the whistle
blower or any other context), . . . and any other violation
of state, federal or common law ....
(iii) neither you nor Company shall file or maintain any
lawsuit, action or legal proceeding of any nature with
respect to any dispute, controversy or claim within the scope
of this Agreement, including, but not limited to, any
lawsuit, action or legal proceeding challenging the
arbitrability of any such dispute .... BY SIGNING THIS
AGREEMENT YOU AND COMPANY ARE WAIVING ANY RIGHT, STATUTORY OR
OTHERWISE, TO A TRIAL BY JURY AND TO PUNITIVE AND EXEMPLARY
YOU ACKNOWLEDGE AND AGREE THAT YOU . . . READ THIS AGREEMENT
AND . . . HAD SUFFICIENT TIME TO STUDY AND CONSIDER IT AND TO
CONSULT WITH COUNSEL OF YOUR CHOICE, THAT YOU UNDERSTAND ALL
OF ITS TERMS AND ARE SIGNING THIS AGREEMENT KNOWINGLY AND
VOLUNTARILY, AND THAT IN DOING SO YOUR ARE NOT RELYING UPON
ANY OTHER STATEMENTS OR ...