Opinion
A-3053-21
03-07-2023
DAKOTA POWELL, Plaintiff-Appellants, v. PRIME COMMS RETAIL, LLC, and MUHAMMAD U. CHOHAN, Defendants-Respondents.
Charles J. Kocher argued the cause for appellant (McOmber McOmber &Luber, PC, attorneys; Charles J. Kocher, Matthew A. Luber and Jeffrey D. Ragone, on the briefs). Michael J. Riccobono argued the cause for respondents (Ogletree, Deakins, Nash, Smoak &Stewart, PC, attorneys; Michael J. Riccobono and Cynthia M. Vera, on the brief).
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Argued February 27, 2023
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-0999-21.
Charles J. Kocher argued the cause for appellant (McOmber McOmber &Luber, PC, attorneys; Charles J. Kocher, Matthew A. Luber and Jeffrey D. Ragone, on the briefs).
Michael J. Riccobono argued the cause for respondents (Ogletree, Deakins, Nash, Smoak &Stewart, PC, attorneys; Michael J. Riccobono and Cynthia M. Vera, on the brief).
Before Judges Mawla and Smith.
PER CURIAM
Plaintiff Dakota Powell appeals from a May 27, 2022 order granting defendants Prime Comms Retail, LLC and Muhammad U. Chohan summary judgment, dismissing plaintiff's complaint and compelling arbitration. We affirm.
Prime is an authorized AT&T retailer and maintains branch locations throughout New Jersey. Plaintiff commenced employment with Prime on October 15, 2020, as a sales representative. New hires at Prime are sent an email containing an individual username and temporary password to login to Prime's Human Resources (HR) portal. The next step for a new employee is to reset the temporary password and create their own, which is prompted upon logging in for the first time. When this is completed, the employee is sent to the "[s]elf-[s]ervice [r]egistration screen" where they input their name, social security number, and birth date.
When the employee has successfully logged into Prime's HR portal, they are required to review and "sign" or "acknowledge" various documents relating to their employment. One such document is the "Agreement to Receipt of Electronic Information and Use of Electronic Signatures[,]" which provides:
I agree to participate in the delivery and receipt of electronic information and to provide electronic
signatures under this Agreement to Receipt of Electronic Information and Use of Electronic Signatures . . . with Prime .... This [a]greement is effective as of the date on my offer of employment with Prime.
My Consent to Electronic Documents and Signatures. I understand that Prime's offer to provide electronic documents and an electronic signature feature in its systems is designed to be an optional convenience for all employees and other people working with Prime. My decision not to participate does not affect my other rights as an employee, including the right to be free from retaliation at Prime.
c. Scope of Consent. My consent applies only to certain documents. I understand that my consent to receive electronic documents and provide electronic signatures and/or electronic confirmations of receipt applies only to online forms and information, handbooks and other policies, updates to handbooks and other policies, on-boarding documents, compensation and other pay plan materials and information, arbitration agreements, employment agreements, benefit program enrollment forms and benefit program information, plus other forms and information as released or published by Prime.
d. Security and Authenticity of Electronic Signatures. To help ensure the authenticity and security of electronic documents provided to me, and electronic signatures I provide, Prime will provide all electronic documents and signature features within its systems where I must login with my selected username and password. I understand that Prime does not have access to my system password(s). I am also aware that
I am free to change my password(s) at any time. I agree to keep my login information confidential at all times.
Prime's employees are required to sign an arbitration agreement as a condition of employment called the "Mutual Agreement to Arbitrate" (MAA). The terms of the MAA are not the subject of this appeal, but instead whether plaintiff signed the MAA. In this regard, the MAA stated as follows:
Applicable Law and Other Provisions. . . . My electronic signature on this document is governed by my Agreement to Receipt of Electronic Information and Use of Electronic Signatures, and the Electronic Signatures in Global and National Commerce Act [(ESIGN)] to the fullest extent permitted by applicable law. Where applicable, this [a]greement is also subject to the version of the Uniform Electronic Transactions Act adopted by the state where I last worked for Prime.
My electronic signature below confirms that:
• I am entering this [a]greement voluntarily.
• I acknowledge that I have carefully read this [a]greement and the I am HEARD program, and understand all the terms, and all understandings and agreements between Prime and me relating to our [MAA], [and] my [w]aiver of [r]ight to [j]ury or [t]rial by [j]udge, . . . are contained in this [a]greement and the I am HEARD program. I did not rely on any promises or representations by
Prime, other than those contained in this [a]greement and the I am HEARD program.
• I also acknowledge that I have been given the opportunity to consult with my private legal counsel or other advisor before signing this [a]greement, [and I] have either done so or voluntarily decided to decline my opportunity to do so.
The "I am HEARD" program is a three-step conflict resolution program available to Prime employees.
Prime's director of employee relations certified these agreements, among others not relevant to this appeal, are "required" to be signed by new hires as a condition of receiving pay. Specifically, "[t]hese onboarding policies and documents are assigned to new hires prior to their first day of work and [they] are encouraged to review and acknowledge all documents prior to their first day of work."
The record shows plaintiff sent an email to HR on October 21, 2020, requesting her username. Plaintiff then logged into her account on this date and updated her contact information. The discovery provided by Prime included a copy of its "policy acknowledgement status report" for plaintiff, showing she "acknowledged" all the policies Prime required of new employees on October 21, 2020, including the use of electronic signatures agreement, the I am HEARD policy, and the MAA.
The director certified in order for a new employee to assent to the new hire agreements, they would be "prompted to review the document and click on a box to indicate that [they were] assenting to the terms and conditions of the [a]greement before being allowed to move to the next screen." When an employee clicks the box indicating assent to the MAA, a pop-up box appears stating:
[] Acknowledgment
By clicking this box, I am signing this [MAA] and I acknowledge, accept, and agree to be bound by the terms of the [MAA]. I understand and accept that this document creates mutually enforceable obligations between me and Prime. I understand that this creates an enforceable contract between me and Prime. I understand that this creates mutually enforceable obligations on me and Prime to arbitrate any and all disputes between me and Prime. I understand and agree that this contract may not be modified or superseded except in a written agreement signed by me and Prime's Vice President of [HR].
During her employment at Prime's Edison AT&T store, plaintiff received a text from her manager, Chohan, containing a racial slur. Plaintiff informed her district manager. The district manager told plaintiff she would call her about the incident. Plaintiff transferred to another branch because she "did not feel safe reporting . . . Chohan's discriminatory remark while working with [him] out of a fear of retaliation." She then filed a complaint with HR on January 10, 2021, and was fired four days later.
Plaintiff filed a two-count complaint in the Law Division against defendants alleging discrimination, hostile work environment, disparate treatment, and retaliation under the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -50. Following an initial round of motion practice, the parties agreed to take limited discovery, including plaintiff's deposition, as to whether she entered the MAA.
At her deposition, plaintiff testified she received a link to register with the HR portal and the only way someone could register for the HR portal under her name would be if they had her personal information, including her social security number. She did not discuss her password with anyone else and plaintiff had no reason to believe someone besides herself accessed the HR portal account on her behalf, or that someone pretended to be her. She recalled filling out the welcome page to setup her account when she started working for Prime and agreed she had to register for the HR portal as a condition of receiving her pay. Plaintiff testified she was neither rushed to review the agreements presented to her by HR nor had technical difficulties accessing the system.
However, plaintiff denied viewing and acknowledging the MAA, despite defense counsel showing her documentation confirming she electronically signed the document by clicking a box. She claimed she never saw the electronic signature agreement or the MAA during her time at Prime, despite logging into the HR portal numerous times, and saw the documents for the first time when preparing for the deposition.
Defendants moved for summary judgment dismissal of plaintiff's complaint and to compel arbitration. They argued the MAA was enforceable, plaintiff signed the document by clicking the box, and her "inability to recall signing[,] . . . reviewing[,] and assenting to the agreement is not satisfactory of her prima facie burden." Plaintiff reiterated she did not see the agreement and the document lacked her electronic signature.
Judge Daniel H. Brown heard the motion and made oral findings. He found the material facts were not in dispute and stated:
The record is clear . . . plaintiff accessed her [HR] account and reviewed and assented to various terms of employment. Notably . . .
I agree with Prime . . . to use binding individual arbitration to resolve any . . . "covered claims," . . . that arise between Prime and me. "[C]overed claims," . . . are those brought under any contract, statute, local ordinance, or common law relating to
my employment or other relationship with Prime, including those concerning any element of compensation, harassment, discrimination, retaliation, . . . or termination of employment.
Then plaintiff, through her same individual [HR] account, for which only she can access, which would have had to click [a box to register] . . . her assent ....
Plaintiff has admitted that she was the only one who had access to her [HR] account. The record is clear that the only way the agreement could have been acknowledged was by plaintiff through her [HR] account and no evidence exists that someone other than the plaintiff assented to these agreements. And, again, any contention or suggestion that the plaintiff clicking the boxes to give her assent rather than signing or even electronically signing her name is . . . of no moment.
Plaintiff electronically clicking the boxes sufficiently evidences her intent to be bound by these terms.
. . . [T]he record is clear there is no physical signature and the record is clear there's no electronic signature, but . . . the record could not be any clearer that there was absolutely and unequivocally assent by . . . plaintiff through the means just set forth by the [c]ourt.
The law is clear that continued employment after given that assent, which was afforded here to the plaintiff, constitutes adequate consideration for an agreement to arbitrate, an agreement which she entered
into. Plaintiff has not set forth any specific facts showing that there's a genuine issue for trial as to whether a valid and enforceable arbitration agreement was in fact entered into. ... [P]laintiff's inability to recall actually reviewing the agreements in question does not create a question of material fact, nor does it serve as a basis to void said agreements. Moreover, the scope of the arbitration agreement in question is explicit and specific and governs the claims made herein by . . . plaintiff.
And, finally, the [c]ourt would note that it's mindful of N.J.S.A. 10:5-12.7, which prohibits employers and employees from entering into arbitration agreements as to any claims under . . . [the] NJLAD. However, that statute is now preempted when it's applied to an agreement governed by the [Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16, 201-08, 30107, 401-02]. And, again, that was set forth . . . in Antonucci v. Curvature Newco, Inc.[, 470 N.J.Super. 553 (App. Div. 2022)].
As the agreement to arbitrate in the matter before this [c]ourt is governed by the FAA, N.J.S.A. 10:5-12.7 is, therefore, preempted.
On appeal, plaintiff argues there is no evidence she clearly and unmistakably assented to arbitration. She claims she did not sign the arbitration agreement and defendants did not produce her signature, even though the MAA required one. Further, her deposition testimony showed the material facts were in dispute because she steadfastly maintained she neither reviewed nor signed the MAA.
Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). "The judge must decide whether 'the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged dispute issue in favor of the non-moving party.'" Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995)).
A motion for summary judgment will not be defeated by bare conclusions lacking factual support. Peterson v. Twp. of Raritan, 418 N.J.Super. 125, 132 (App. Div. 2011). Neither self-serving statements unsupported by legally competent evidence, Heyert v. Taddese, 431 N.J.Super. 388, 413-14 (App. Div. 2013), nor disputed facts "of an unsubstantial nature" can thwart summary judgment. Pressler &Verniero, Current N.J. Court Rules, cmt. 2.1 on R. 4:462 (2022).
Our review of summary judgment decisions is de novo, applying the same principles as the trial court. Kearny, 214 N.J. at 91. Because arbitration agreements are contractual, whether a party agreed to arbitration is a question of law, which we also review de novo. Goffe v. Foulke Mgmt. Corp., 238 N.J. 191, 207 (2019).
"An agreement to arbitrate, like any other contract, 'must be the product of mutual assent, as determined under customary principles of contract law.'" Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430, 442 (2014) (quoting NAACP of Camden Cnty. E. v. Foulke Mgmt., 421 N.J.Super. 404, 424 (App. Div. 2011)). "In this state, when called on to enforce an arbitration agreement, a court's initial inquiry must be-just as it is for any other contract-whether the agreement to arbitrate . . . is 'the product of mutual assent, as determined under customary principles of contract law.'" Kernahan v. Home Warranty Adm'r of Fla., Inc., 236 N.J. 301, 319 (2019) (quoting Atalese, 219 N.J. at 442). "And, equivalent to federal law, parties may not be compelled 'to arbitrate when they have not agreed to do so.'" Ibid. (quoting Atalese, 219 N.J. at 442). In employment settings, an employee's assent to arbitration must be clear and unambiguous. Antonucci, 470 N.J.Super. at 562.
We recently noted "[c]ourts have observed the enforceability of an internet . . . contract often turns on whether the agreement is characterized as a 'scrollwrap,' 'sign-in wrap,' 'clickwrap,' or 'browsewrap'-or a hybrid version of these electronic contract types." Wollen v. Gulf Stream Restoration &Cleaning, LLC, 468 N.J.Super. 483, 495-96 (App. Div. 2021) (quoting Berkson v. Gogo LLC, 97 F.Supp.3d 359, 394-401 (E.D.N.Y. 2015)). "Clickwrap [agreements] . . . require[] 'a user consent to any terms or conditions by clicking on a dialog box on the screen in order to proceed . . . [and 's]uch agreements are routinely enforced by the courts.'" Id. at 496 (quoting Skuse v. Pfizer, Inc., 244 N.J. 30, 55 n. 2 (2020)).
Pursuant to these principles, we affirm substantially for the reasons expressed in Judge Brown's opinion. We add the following comments.
Plaintiff failed to demonstrate a material dispute in fact to avoid entry of summary judgment in defendants' favor. Her deposition testimony confirmed: she received a link to register with the HR portal; the only way to register in the HR portal was by possessing her personal information, which no one else had; she was not rushed in reviewing the agreement; and she had no technical difficulties accessing the HR portal.
These admissions, combined with the director's certification that employees are required to review and sign the onboarding agreements, including the MAA, and the policy acknowledgement status report showing plaintiff acknowledged all fourteen policies provided were clear and unambiguous proof plaintiff assented to binding arbitration. Finally, by clicking the box on the MAA, plaintiff "acknowledge[d], accept[ed], and agree[d] to be bound by the terms of the [MAA] ...." Prime's MAA contained the sort of clickwrap agreement enforced by our courts. Wollen, 468 N.J.Super. at 496. Given these clear indicia of review and acknowledgment by plaintiff showing her assent, a signature beyond the clickwrap was not required to enforce the MAA.
Affirmed.