BROOKS v. BROOKDALE SENIOR LIVING COMMUNITIES, INC. et al
Filing
9
OPINION. Signed by Judge Robert B. Kugler on 12/18/2012. (tf, )
NOT FOR PUBLICATION
(Document No. 5)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
___________________________________
CARY BROOKS,
Plaintiff,
v.
:
:
:
:
:
:
:
:
Civil No. 12-2821 (RBK/AMD)
OPINION
BROOKDALE SENIOR LIVING
COMMUNITIES, INC.,
:
:
Defendant.
:
___________________________________ :
KUGLER, United States District Judge:
This matter arises upon Plaintiff Cary Brooks’s (“Plaintiff”) claims against her former
employer Defendant Brookdale Senior Living Communities, Inc. (“Defendant”). Plaintiff
alleges that Defendant discriminated and retaliated against her in violation of the New Jersey
Law Against Discrimination (“NJLAD”), N.J.S.A. 10:5-1 et seq. (2012) and the New Jersey
Workers’ Compensation Law (“NJWCL”), N.J.S.A 34:15-1 et seq. (2012). Currently before the
Court is Defendant’s motion to dismiss Plaintiff’s complaint and to compel arbitration. For the
reasons stated below, the Court finds that Plaintiff’s claim must be dismissed because she
executed a valid waiver of her right to sue her employer for claims of discrimination and
retaliation. Instead, her remedy is to seek arbitration. Therefore, the Court will grant
Defendant’s motion to dismiss Plaintiff’s complaint and to compel arbitration.
I.
FACTUAL BACKGROUND
1
Plaintiff began her employment with Defendant as a Medication Dispensation Technician
in February 2007. Def.’s Br. in Support of Mot. to Dismiss 1. On February 22, 2007 she
received an Associate Handbook (“Handbook”). This document described various company
policies and procedures, including Defendant’s Binding Arbitration Procedure. Lavin Decl. Exh.
A 35-37. The introduction to the Handbook specified that it was “only intended to be a source of
information and a general statement of Brookdale policies and procedures. It is not a contract of
employment, expressed or implied, or a promise of employment upon specific terms.” Id. at 3.
Further, under the heading of “Employment,” the Handbook states:
The policies and procedures set forth in this Handbook are not
intended to create an employment contract or any other type of
contract, nor are they to be construed as contractual obligations of
any kind or an offer to form a contract.
Id. at 5.
On the same date that she received the Handbook, Plaintiff signed an “Associate
Handbook Receipt and Acknowledgement” form. Lavin Decl. Exh. B. The form contained the
following language:
I understand this Handbook does not create a contract of
employment, express or implied, between Brookdale and me and I
should not view it as such, or as a guarantee of employment for
any specific duration . . . .
I understand that Brookdale has an Employment Binding
Arbitration policy in place should any disputes arise between
Brookdale and me, and that I agree to arbitrate the dispute by a
final binding arbitration.
Id.
In April 2010, Plaintiff suffered physical injuries in the course of her employment.
Compl. ¶ 5. She requested accommodation for her injury, but Defendant allegedly refused to
2
provide it. Id. at ¶ 7. Shortly thereafter, Defendant terminated Plaintiff’s employment. Id. at ¶
8.
In April 2012, Plaintiff filed suit in New Jersey Superior Court, asserting claims for
discrimination based on physical disability in violation of the NJLAD, and for violation of the
NJWCL. Defendant timely removed the case to this Court on the basis of federal diversity
jurisdiction 1 and filed the instant motion to dismiss. Defendants argue that, by signing the
Associate Handbook Receipt and Acknowledgement form, Plaintiff waived her right her right to
sue her former employer in court for discrimination and retaliation. Instead, Defendants
continue, her sole remedy is the arbitration process provided for in the Associate Handbook.
Plaintiff responds that because both the Handbook and the Acknowledgement form explicitly
state that they are not the basis for a “contract of employment,” neither document creates any
binding commitment to arbitrate work disputes. Pl.’s Opp. Br. 2.
II.
DISCUSSION AND ANALYSIS
The Federal Arbitration Act (the “Act”) provides that agreements to arbitrate “in a
contract evidencing a transaction involving commerce . . . shall be valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in equity for the revocation of any
contract.” 9 U.S.C. § 2 (2006). This provision illustrates a “liberal federal policy favoring
arbitration agreements.” Moses H. Cone Memorial Hosp. v. Mercury Const. Corp., 460 U.S. 1,
24 (1983). Under the Act, if one party to a valid arbitration agreement refuses to submit her
claims as provided for under the agreement, the aggrieved party may seek an order in United
States district court seeking to compel arbitration. 9 U.S.C. § 4. Upon determining that a
1
Specifically, Plaintiff is a citizen of the state of New Jersey while Defendant is a citizen of the states of Delaware
and Tennessee. In addition, the amount in controversy is more than $75,000. See 28 U.S.C. § 1332(a)(1) (2006).
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binding agreement exists between the parties, the district court is obliged to direct the parties to
proceed to arbitration. Id.
Determining whether an arbitration agreement is enforceable generally requires
application of state law contract principles. First Options of Chicago, Inc. v. Kaplan, 514 U.S.
938, 944 (1995). Where, as here, the agreement was formed in New Jersey and both parties
appear to agree that New Jersey law should apply, the Court begins its analysis by
acknowledging that the state’s courts have “recognized arbitration as a favored method for
resolving disputes.” Garfinkel v. Morristown Obstretics & Gynecology Assocs., 773 A.2d 665,
670 (N.J. 2001). Simiarly, the legislature has codified its endorsement of the arbitration
mechanism. Martindale v. Sandvik, Inc., 800 A.2d 872, 877 (N.J. 2002) (citing N.J.S.A. 2A:241 et seq.). Accordingly, it is well settled in New Jersey that parties to a valid arbitration
agreement may waive statutory remedies in favor of arbitration, even in cases involving alleged
discrimination under the NJLAD. Garfinkel, 773 A.2d at 670.
Under New Jersey law, to determine whether parties are bound to resolve a particular
dispute through arbitration, the Court applies a two-step analysis. Martindale, 800 A.2d at 876,
881. First, the Court must consider whether a valid agreement exists between the parties. Id. at
876. Second, it must determine whether the particular claim asserted falls within the scope of the
arbitration agreement. Id. at 881. 2
The parties dispute that they entered into a valid agreement. On the one hand, the Court
is mindful that “an agreement to arbitrate should be read liberally in favor of arbitration.”
2
The parties do not appear to dispute this issue. That is, Defendant’s Arbitration Policy by its own terms extends to
“claims for discrimination (including . . . discrimination based on . . . physical disability, or medical condition) . . .
and/or claims for violation of any . . . state . . . statute.” Lavin Decl., Exh. A 35. These provisions clearly cover the
NJLAD and NJWCL claims that Plaintiff asserted in her Complaint. In her filings with the Court, Plaintiff does not
offer any argument to the contrary. Thus, the Court will consider the second part of the Martindale analysis
conceded in Defendant’s favor.
4
Garfinkel, 773 A.2d at 670 (quoting Marchak v. Claridge Commons, Inc., 633 A.2d 531 (N.J.
1993)). On the other hand, given the significance inhering in an agreement to waive one’s right
to judicial resolution of legal claims, a binding arbitration clause must state its purpose
unequivocally. See id. That is, the party’s waiver of her statutory rights to sue “must be clearly
and unmistakably established, and contractual language alleged to constitute a waiver will not be
read expansively. Id. (citing Red Bank Regional Educ. Ass’n v. Red Bank Regional High Sch.
Bd. of Educ., 393 A.2d 267, 267 (N.J. 1978)). In making this determination, the Court looks
only to the four corners of the written instrument to determine the intention of the parties.
Leodori v. CIGNA Corp., 814 A.2d 1098, 1104 (N.J. 2003).
In this case, Plaintiff signed and dated the Acknowledgement Form accompanying the
Associate Handbook. 3 The penultimate paragraph of the form, located approximately one inch
above the signature line, reads as follows: “I understand that Brookdale has an Employment
Binding Arbitration policy in place should any disputes arise between Brookdale and me, and
that I agree to arbitrate the dispute by a final binding arbitration.” Lavin Decl. Exh. B. Simply
stated, this language provides the sort of “clear[] and unmistakeabl[e]” waiver of statutory rights
required under New Jersey law sufficient to create a binding arbitration agreement. See
Garfinkel, 773 A.2d at 670. Thus, the Court holds that Plaintiff is bound to arbitrate her
discrimination and retaliation claims in an arbitral, rather than a judicial, forum. For this reason,
the Court will grant Defendant’s motion to dismiss Plaintiff’s Complaint and to compel
arbitration. See 9 U.S.C. § 4.
In reaching this determination, the Court is sympathetic to Plaintiff’s concerns that,
essentially, Defendant appears to have been talking out of both sides of its proverbial mouth
3
On a motion to dismiss, the Court may consider “an undisputedly authentic document that a defendant attaches as
an exhibit . . . if the plaintiff’s claims are based on the document.” In re Donald J. Trump Casino Securities
Litigation-Taj Mahal Litig., 7 F.3d 357 (3d Cir. 1993).
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when it provided Plaintiff with the Handbook and Acknowledgement form. That is, the
Handbook explicitly states that “the policies and procedures set forth in this Handbook,” of
which the Arbitration policy is necessarily a part, “are not intended to create . . . any other type
of contract, nor are they to be construed as contractual obligations of any kind.” Lavin Decl.,
Exh. A 5 (emphasis added). A reasonable employee reading this broad and unequivocal
language might well be puzzled, then, to learn that her employer in fact specifically intended one
particular policy in that Handbookto have binding effect on their employment relationship.
While the defect is cured in the Acknowledgement Form by the use of language explicitly stating
that the employee “agree[s] to arbitrate the dispute by a final binding arbitration,” the inclusion
of language on that same form reiterating that the “Handbook does not create a contract of
employment, express or implied, between Brookdale and me” seems to work at cross purposes.
Nothwithstanding Defendant’s inelegant drafting techniques, the Court notes that the purported
arbitration agreements that courts have found unenforceable suffered from far more serious
deficiencies than are present in this case. 4 This fact, combined with the established practice of
New Jersey courts to read agreements liberally in favor of arbitration, see Garfinkel, 773 A.2d at
670, persuades the Court to grant Defendant’s motion.
III.
CONCLUSION
For the reasons stated above, the Court holds that Plaintiff contracted with Defendant to
resolve discrimination and retaliation claims arising from her employment through a binding
4
See, e.g., Leodori v. CIGNA Corp., 814 A.2d 1098 (N.J. 2003) (no binding agreement because employee never
actually signed the Acknowledgement Form assenting to arbitration clause); Molloy v. Am. Gen’l Life Cos., No. 054547, 2006 WL 2056848 (D.N.J. July 21, 2006) (no agreement to arbitrate when all employer did was to send its
employees a copy of the arbitration policy per e-mail and regular mail, send a reminder about the policy one year
later, and keep a link on its intranet site for employees’ reference); Stewart v. Fairlane Community Mental Health
Centre, 571 N.W.2d 542 (Mich. Ct. App. 1997) (no agreement to arbitrate because employee never signed
arbitration policy acknowledgement form); Hubner v. Cutthroat Communications, Inc., 80 P.3d 1256 (Mont. 2003)
(no agreement to arbitrate because employee signed the handbook itself instead of a separate acknowledgement form
and handbook was ambiguous because it “both disclaimed itself as a contract in a number of places” but also
“referred to itself as ‘this contract’ just before the arbitration provision);
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arbitration process. Therefore, she is barred from asserting these claims in the first instance
before this or any other court. Further, because a valid arbitration agreement exists between
these parties, the Court must order Plaintiff to submit to arbitration. See 9 U.S.C. § 4 (2006).
Accordingly, Defendant’s motion to dismiss Plaintiff’s complaint and compel arbitration will be
granted. The Court will issue an appropriate order.
Dated:
12/18/2012
/s/ Robert B. Kugler
_
ROBERT B. KUGLER
United States District Judge
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