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Skuse v. Pfizer, Inc.

Superior Court of New Jersey, Appellate Division

January 16, 2019

AMY SKUSE, Plaintiff-Appellant,
PFIZER, INC., JOHN D. WITZIG, PAUL MANGEOT, and CONNIE CORBETT, individually, jointly, severally and/or in the alternative, Defendants-Respondents.

          Argued December 4, 2018

          On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2374-17.

          Alan H. Schorr argued the cause for appellant (Schorr & Associates, PC, attorneys; Alan H. Schorr, on the briefs).

          John M. Nolan argued the cause for respondents (Jackson Lewis, PC, attorneys; John M. Nolan, of counsel and on the brief; Carla D. Macaluso and Timothy M. McCarthy, on the brief).

          John J. Sarno argued the cause for amicus curiae Employers Association of New Jersey (Ford & Harrison, LLP, attorneys; John J. Sarno and Mark A. Saloman, of counsel and on the brief; Jeffrey A. Shooman, on the brief).

          Richard M. Schall argued the cause for amicus curiae National Employment Lawyers Association of New Jersey (Schall & Barasch, LLC, attorneys; Richard M. Schall, on the brief).

          Lowenstein Sandler, LLP, attorneys for amicus curiae New Jersey Civil Justice Institute (Gavin J. Rooney, on the brief).

          Before Judges Sabatino, Haas and Mitterhoff.


          SABATINO, P.J.A.D.

         This case exemplifies an inadequate way for an employer to go about extracting its employees' agreement to submit to binding arbitration for future claims and thereby waive their rights to sue the employer and seek a jury trial.

         The employer in this case emailed to its workforce what it called a "training module" (or "activity" or "course"). The module described the company's mandatory arbitration policy, as presented in a series of slides on computer screens. One screen provided employees with the opportunity to access a "Resource" link to the full text of the policy. In a separate email, the employer supplied a computer link to Frequently Asked Questions ("FAQs") concerning the policy.

         On the third slide of the module presentation, the employees simply were asked to "acknowledge" it with the click of an electronic button. The module declared that if an employee did not click the acknowledgement, but continued to work for the company for sixty or more days, the employee would be "deemed" to be bound by the arbitration policy.

         Although the arbitration policy is labeled an "agreement" and that word appears multiple times on the slides and within the linked policy, the module did not request employees to provide signatures conveying their agreement. Nor were the employees asked - within the four corners of the pivotal "click" box at the end of the presentation - to memorialize that they expressly agreed to the policy. They were only asked within the box to "acknowledge" it.

         This oblique procedure does not yield the valid personal agreement of an employee to give up his or her statutorily protected rights to litigate claims against an employer in a public forum and seek a trial by jury. The procedure falls short of the requirements of New Jersey contract law, particularly the Supreme Court's longstanding precedent in Leodori v. CIGNA Corp., 175 N.J. 293, 303 (2003) (holding an employee's valid waiver of statutory rights, there in the context of an employer's binding arbitration policy, "results only from an explicit, affirmative agreement that unmistakably reflects the employee's assent") (emphasis added), as well as the Court's more recent opinion in Atalese v. U.S. Legal Services Group, L.P., 219 N.J. 430, 447 (2014) (holding the words of an arbitration agreement "must be clear and unambiguous that a [person] is choosing to arbitrate disputes rather than have them resolved in a court of law") (emphasis added).

         The plaintiff employee never expressed in written or electronic form her explicit and unmistakable voluntary agreement to forego the court system and submit her discrimination claims against her former employer and its officials to binding arbitration. Consequently, we reverse the trial court's order dismissing her complaint and compelling arbitration. We do so without prejudice to the company appropriately revising its approach in the future.


         In November 2017, plaintiff Amy Skuse filed a complaint in the Law Division against her former employer Pfizer, Inc. ("Pfizer"), and several other Pfizer officials.[1] Plaintiff's complaint alleges a violation of the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49, based on religious discrimination, and a failure to provide reasonable accommodation for her religious beliefs.

         The Vaccination Dispute

         The complaint makes a host of allegations, most of which we need not repeat here for purposes of our forum analysis, and which have yet to be proven. The following summary of plaintiff's complaint will suffice.

         Plaintiff worked for Pfizer as a flight attendant, beginning in 2012. Her principal place of employment was out of Pfizer's airport facility in West Trenton.

         Plaintiff is a practicing Buddhist. As part of her religious beliefs, plaintiff "does not, and never has as an adult, received any injections that contain any kind of animal protein."

         Pfizer has a company policy requiring that its flight attendants receive a yellow fever vaccine. Plaintiff did not receive such a vaccine. According to her complaint, plaintiff was not pressured to do so by the company until on or around April 17, 2017. On that occasion, defendants Witzig and Mangeot allegedly met with her and gave her an "ultimatum" to receive the vaccination within thirty days or else be terminated.

         Plaintiff declined to receive the vaccination, which apparently contains animal-derived ingredients. According to her complaint, she informed Pfizer she had a valid "yellow card" waiver authorizing her to travel to any country without the vaccination. She presented a letter from her physician, documenting that she elected not to receive the vaccination because of "philosophical reasons that are similar to a religious belief." Nonetheless, defendants allegedly continued with their ultimatum and intensified the pressure on her to get the vaccine.

         In early May 2017, plaintiff suffered a breakdown, allegedly from the company's threats. Defendants granted her a leave from work, pursuant to the Family Medical Leave Act, N.J.S.A. 34:11B-1 to -16. When plaintiff was medically cleared to resume work two months later, defendants refused to allow her to return. They instead placed her on an indefinite paid leave.

         Plaintiff then filed a formal request with Pfizer for an accommodation from the yellow fever vaccination requirement, specifically citing her "strong religious conviction." She met with Corbett to discuss that request.

         Following the meeting, Corbett sent plaintiff a letter denying her request for religious accommodation. Plaintiff sought internal review of this decision, apparently with Pfizer's human resources division. Pfizer denied that internal appeal.

         On August 11, 2017, Pfizer terminated plaintiff's employment.

         Plaintiff filed the instant lawsuit about three months later. In response to the complaint, defendants filed a motion seeking to dismiss this action and compel plaintiff to submit her claims to binding arbitration. The motion invoked the Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 1 to 16, and the New Jersey Uniform Arbitration Act, N.J.S.A. 2A:23B-1 to -32.

         The Company's Arbitration "Training Module"

         The key issue before us is whether the parties entered into a valid mutual agreement to arbitrate plaintiff's claims.

         Pfizer emphasizes that plaintiff electronically received and completed a training module presenting the company's mandatory binding arbitration policy. Plaintiff thereafter continued working for the company for thirteen months until she was discharged. Pfizer argues that through this process plaintiff thereby assented to, and must be bound by, the arbitration policy.

         Plaintiff counters that she never expressed her agreement to the arbitration policy. She insists she did not waive any of her rights to litigate against Pfizer under the State's anti-discrimination and employment laws.

         The "training module" (also referred to as an "activity" or "course") used to disseminate Pfizer's arbitration policy was transmitted to thousands of its employees by email, linking to company's computer-based training portal. As described in a motion certification by the company's "Enterprise Learning Architect," Robert M. Baker, the mass transmission was conducted in May 2016 through emails "assigning" to each employee recipient "the activity of taking an on-line module to review the [company's] Mutual Arbitration and Class Waiver Agreement and Acknowledgement." (Emphasis added).

         The emails contained a link that the employees were expected to click to launch the module through the same portal "Pfizer employees use for many of their assigned trainings." The company imposed a deadline of July 4, 2016 for employees to complete the assigned module activity, on which date the policy would become effective.

         A link provided, via a separate email, gave employees the ability to access FAQs concerning the new mandatory policy. The FAQs included, among other things, the following questions and answers:

4. Do I have to agree to this?
The Arbitration Agreement is a condition of continued employment with the Company. If you begin or continue working for the Company sixty (60) days after receipt of this Agreement. It will be a contractual agreement that binds both you and the Company.
5. Can I change any parts of the agreement that I do not like?
No, you cannot change any of the terms of the Arbitration Agreement.
6. Do I give up any rights under the Arbitration Agreement?
Please review the Arbitration Agreement carefully to fully understand its terms and conditions. By agreeing to the Arbitration Agreement through continuing your employment with Pfizer, you are giving up the right to bring employment-related claims covered by the Agreement against Pfizer in a court of law. Instead, you are agreeing to arbitrate those claims before a neutral arbitrator. You are also agreeing to bring those claims on an individual basis and not on a class action, collective action, or representative action basis. Pfizer is also giving up the right to bring employment-related claims covered by the Agreement against you in court and is agreeing to bring any such claims on an individual basis in arbitration.
[(Emphasis added).]

         The parties' appendices contain screenshots of the module's four computer slides[2] that presented Pfizer's ...

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