Opinion
DOCKET NO. A-3993-12T3
07-15-2014
ANGEL VARGAS, Plaintiff-Appellant, v. INX INTERNATIONAL, INC., and DG3 DIVERSIFIED GLOBAL GRAPHICS,1 Defendants-Respondents, and BRIAN WINDVAND, and DUKE VANUSDALE, Defendants.
Law Offices of Louis A. Zayas, L.L.C., attorneys for appellant (Mr. Zayas, on the briefs). FordHarrison, L.L.P., attorneys for respondent INX International Ink Co. (Salvador P. Simao, of counsel; Mr. Simao and Joanna S. Rich, on the brief). Gibbons, P.C., attorneys for respondent DG3 North America, Inc. (Susan L. Nardone, of counsel; Ms. Nardone and Michael J. Riccobono, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Manahan.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3512-12.
Law Offices of Louis A. Zayas, L.L.C., attorneys for appellant (Mr. Zayas, on the briefs).
FordHarrison, L.L.P., attorneys for respondent INX International Ink Co. (Salvador P. Simao, of counsel; Mr. Simao and Joanna S. Rich, on the brief).
Gibbons, P.C., attorneys for respondent DG3 North America, Inc. (Susan L. Nardone, of counsel; Ms. Nardone and Michael J. Riccobono, on the brief). PER CURIAM
Plaintiff Angel Vargas appeals from orders entered by the trial court, which required that he arbitrate his claims against defendants INX International, Inc. (INX) and DG3 Diversified Global Graphics (DG3). For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings on plaintiff's claims against DG3.
I.
In 2010, INX contracted with DG3, a company engaged in the print and communications business, to provide ink and printing services to DG3. In accordance with that agreement, INX operates an "in plant" print shop within DG3's Jersey City facility. Previously, Spectra Colors (Spectra) operated DG3's print shop. When INX began to operate DG3's print shop, it hired plaintiff and his brother Pablo Vargas, who both previously worked for Spectra in the DG3 shop.
Plaintiff was scheduled to begin work for INX on Monday, October 4, 2010. On Friday, October 1, 2010, INX supervisor Vernon Van Orsdale met with plaintiff to review INX's paperwork for new hires. He instructed plaintiff to review the papers over the weekend. He told plaintiff to return with the signed documents and any questions on the following Monday.
One of the documents was a four-page document entitled "Mutual Agreement to Arbitrate Claims", which stated in part that
The Company and I mutually consent to the resolution by arbitration of all claims or controversies ("claims"), whether or not arising out of my employment (or its termination), that the Company may have against me or that I may have against the Company or against its officers, directors, employees or agents in their capacity as such or otherwise. The claims covered by this Agreement include, but are not limited to, claims for wages or other compensation due; claims for breach of any contract or covenant (expressed or implied); tort claims including but not limited to libel, slander, fraud, and intentional infliction of emotional distress; claims for discrimination (including, but not limited to, race, sex, religion, national origin, age, marital status, or medical condition, handicap or disability); claims for benefits (except where an employee benefit or pension plan specifies that its claims procedure shall culminate in an arbitration procedure different from this one); and claims for violation of any federal, state, or other governmental law, statu[t]e, regulation or ordinance, except claims excluded [in the following section of the agreement]. Arbitration of claims shall be the exclusive and final method of resolving all claims, excluding only those claims excluded in the following [s]ection. . . .The agreement defines the term "company" to mean INX and its "officers, directors, employees and agents, its parent companies, all subsidiary and affiliated entities . . . and all successors and assigns of any of them."
The agreement further provided that workers' compensation claims were excluded. Also excluded were claims for (i) injunctive or equitable relief for breach of non-disclosure, non-solicitation, confidentiality and/or patent or invention agreements; (ii) unfair competition; or (iii) the use and/or unauthorized disclosure of trade secrets or confidential information.
The agreement also stated that the proceedings would be governed by procedures of the American Arbitration Association. It provided that the parties could be represented by counsel, the discovery that would be permitted, and the manner and time in which witnesses would be designated. It further provided that the parties would have the right to subpoena witnesses with relevant knowledge and documents related to the claims being arbitrated.
Above the signatures, the agreement stated the following:
I acknowledge that I have carefully read this Agreement, that I understand its terms, that all understandings and agreements between the Company and me related to the subjects covered in the Agreement are
contained in it, and that I have entered into the Agreement voluntarily and not in reliance on any promises or representations by the Company other than those contained in this Agreement itself.
I further acknowledge that I have been given the opportunity to discuss this Agreement with my private legal counsel and have availed myself of that opportunity, to the extent that I wish to do so.
On October 1, 2010, plaintiff signed the agreement. He returned the signed document to INX on October 4, 2010, his first day of work. On that date, an authorized representative of INX also signed the agreement.
INX asserts that plaintiff's performance and attitude were not satisfactory, and his employment was terminated on January 19, 2011. Plaintiff had worked for INX for three months. His brother continued to work for INX and he was later promoted.
In July 2012, plaintiff filed a complaint against INX, DG3 and certain individual defendants, alleging that he had been subject to discrimination, harassment and retaliation in violation of the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -49. He also asserted claims against his supervisors for aiding and abetting the alleged violations of the NJLAD. Plaintiff filed an amended complaint in December 2012.
In January 2013, INX filed a motion to dismiss the claims against it and to compel arbitration of these claims. DG3 joined in the motion to dismiss. Plaintiff opposed the motion. Among other things, he claimed that he did not receive all four pages of the agreement to arbitrate claims that he signed on October 1, 2010.
The trial court considered the motion on February 8, 2013. The court found that the arbitration agreement was valid and plaintiff's claims were encompassed by the agreement. The court determined, however, that there was a factual dispute as to whether plaintiff received the entire agreement, which could not be resolved without an evidentiary hearing. The court memorialized its decision in an order dated February 19, 2013.
The court conducted the hearing on March 14, 2013, and found that plaintiff had, in fact, received all four pages of the agreement to arbitrate claims. The court thereupon granted INX's motion. The court dismissed the claims against INX and ordered that they be submitted to arbitration. The court memorialized its decision in an order dated March 25, 2013. DG3 renewed its motion to dismiss and to compel arbitration. The court entered an order dated April 23, 2013, granting DG3's motion. This appeal followed.
II.
Plaintiff argues that the trial court erred by finding that he was bound by the agreement to arbitrate claims. He contends that he did not knowingly enter into the agreement. He asserts that the agreement was not clear, he did not have sufficient time to review it, he has limited education, and defendants did not provide him with an attorney or encourage him to retain counsel. These contentions are without merit.
The NJLAD "provides a mechanism by which victims of discrimination may seek redress for their injuries." Garfinkel v. Morristown Obstectrics & Gynecology Assocs., P.A., 168 N.J. 124, 130 (2001). Such claims may be pursued in the New Jersey Division on Civil Rights or in the Law Division. Ibid. (citing N.J.S.A. 10:5-13); Hernandez v. Region Nine Hous. Corp., 146 N.J. 645, 652 (1996)). However, parties may agree to waive statutory remedies, including those provided by the NJLAD. Id. at 131 (citing Quigley v. KPMG Peat Marwick, LLP, 330 N.J. Super. 252, 259 (App. Div.), certif. denied, 165 N.J. 527 (2000); Alamo Rent A Car, Inc. v. Galarza, 306 N.J. Super. 384, 389 (App. Div. 1997).
Due to the favored status afforded to arbitration, "'[a]n agreement to arbitrate should be read liberally in favor of arbitration.'" Id. at 132 (quoting Marchak v. Claridge Commons, Inc. , 134 N.J. 275, 282 (1993)). An agreement that deprives an individual of access to the courts "'should clearly state its purpose.'" Ibid. (quoting Marchak, supra, 134 N.J. at 282). Moreover, the waiver of statutory rights must be clear and unmistakable. Ibid. (citing Red Bank Reg'l Educ. Ass'n v. Red Bank Reg'l High Sch. Bd. of Educ, 78 N.J. 122, 140 (1978)).
Here, the agreement clearly and unmistakably provides that the parties agree to arbitrate all claims or controversies, whether arising out of the employment relationship or not. The agreement also states that the claims subject to arbitration include claims for discrimination, including claims related to race and national origin, and claims for violation of "federal, state or other governmental law, statu[t]e, regulation or ordinance[.]"
Furthermore, the agreement was prominently set forth in a separate document, with its title set forth in large, bold upper-case print. The language of the agreement clearly and unmistakenly placed plaintiff on notice that he was waiving his right to pursue administrative or judicial remedies under state law, including those provided by the NJLAD. The agreement made clear plaintiff would be required to submit those claims to binding arbitration.
Plaintiff argues, however, that he should not be bound by the agreement because it does not explicitly state that he is waiving his right to a jury trial or specifically mention the NJLAD. We disagree.
An arbitration agreement need not specifically state that a jury trial is being waived where, as here, the agreement makes clear that claims within its purview must be submitted to arbitration. Garfinkel, supra, 168 N.J. at 135. Moreover, specific reference to statutory remedies is not required when the waiver-of-rights provision provides for the arbitration of all statutory claims, including those related to workplace discrimination. Ibid.
Plaintiff further argues that the court erred by failing to apply the standards enunciated in Coventry v. United States Steel Corp., 856 F.2d 514 (3d Cir. 1998). In Coventry, the question was whether an employee had validly waived his rights under the Federal Age Discrimination in Employment Act, 29 U.S.C.A. §§ 621-634. Id. at 515. Here, plaintiff has not waived any substantive remedies. He has merely agreed to have his claims resolved in an arbitration proceeding. Thus, even if we were bound by Coventry, that decision would not apply to this dispute.
In addition, plaintiff argues that he did not knowingly and voluntarily enter into the arbitration agreement. Again, we disagree. As the record shows, plaintiff was provided with a copy of the agreement to arbitrate claims on Friday, October 1, 2010. The trial court found, based on the testimony provided at the plenary hearing, that plaintiff was given the entire agreement, despite plaintiff's claim to the contrary.
As we have explained, the agreement states that plaintiff agrees to arbitrate all claims against the company, including statutory claims of discrimination based on race or national origin. It also states that plaintiff had the opportunity to have an attorney review the agreement. Plaintiff signed the agreement, beneath the statement indicating that he carefully read the agreement, understood its terms, and was signing the document voluntarily. Thus, plaintiff's claim that he did not knowingly and voluntarily enter into the agreement is meritless.
Plaintiff also contends that the trial court improperly weighed the evidence and made credibility determinations on the issue of whether he knowingly and voluntarily signed the agreement. He argues that the court should have determined whether there were triable issues of material fact that should have been submitted to a jury. We cannot agree.
Here, the court conducted an evidentiary hearing to resolve a single issue, that is, whether plaintiff was given the entire agreement before he signed it. The hearing was required because plaintiff had stated in a certification that he did not receive all four pages of the document. The court resolved that issue, after hearing the testimony of four witnesses and reviewing various exhibits. The court was not required to submit that issue, or any other issue, to a jury for decision.
Based on the evidence presented at the plenary hearing, the court found that plaintiff's assertion that he did not receive the entire agreement was not credible. We are convinced that the court's factual finding is entitled to our deference because it supported by adequate, substantial and credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).
We accordingly conclude that the trial court correctly determined that plaintiff was bound by the agreement to arbitrate and he is required to submit his claims against INX to binding arbitration.
III.
Next, plaintiff argues that the trial court erred by determining that the agreement to arbitrate requires binding arbitration of his claims against DG3. He contends the agreement does not apply to DG3 because DG3 was not a signatory to the agreement, and the doctrine of equitable estoppel does not apply to the facts of this case. We agree with plaintiff's arguments on this point.
In Hirsch v. Amper Finanicial Services., LLC, 215 N.J. 174, 187 (2013), a case decided after the trial court entered its order of April 23, 2013, requiring the arbitration of plaintiff's claims against DG3, the Supreme Court noted that orders compelling arbitration are generally based on a party's agreement to arbitrate claims. The Court stated, however, that a party may be required to arbitrate claims against a non-signatory to an arbitration agreement on the basis of agency principles. Id. at 192 (citing Alfano v. BDO Seidman, LLP, 393 N.J. Super. 560, 569-20 (App. Div. 2007)).
The Court also stated that equitable estoppel may be applied in certain limited circumstances as a basis to compel arbitration of claims against a non-signatory to an arbitration agreement, but the doctrine may not be applied merely because the claims are intertwined with those against a signatory to the agreement. Ibid. There must be proof of detrimental reliance or "at a minimum an oral agreement" to submit the claims to arbitration." Id. at 192-93.
Here, plaintiff never agreed in writing to submit his claims against DG3 to arbitration. As we noted previously, the agreement to arbitrate was between plaintiff and INX. Although plaintiff alleges that he was employed by both DG3 and INX, and his claims against both entities may be intertwined, Hirsch makes clear this is not a sufficient basis to compel arbitration of the claims against DG3.
Moreover, plaintiff never orally agreed to arbitrate his claims against DG3 and there is no claim that DG3 detrimentally relied upon such an agreement by plaintiff to arbitrate his claims. Thus, under Hirsch, plaintiff cannot be compelled to submit his claims against DG3 to arbitration.
DG3 argues, however, that Hirsch should not be applied here because that decision was issued after plaintiff entered into the arbitration agreement. DG3 provides no sound reason why Hirsch should not be applied to this case, which was pending when Hirsch was decided.
DG3 further argues that plaintiff should be compelled to arbitrate his claims because (1) plaintiff's agreement with INX encompasses his claims against DG3, (2) DG3 is covered by plaintiff's allegation that he was employed by both DG3 and INX, (3) DG3 is a necessary and indispensable party in any proceeding to resolve the claims against INX, and (4) compelling plaintiff to arbitrate his claims against both DG3 and INX would further the goals of efficiency and avoid piecemeal litigation.
These contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Suffice it to say that we are convinced that, under Hirsch, plaintiff cannot be compelled to arbitrate his claims against DG3. We therefore conclude that the trial court erred by dismissing plaintiff's complaint as to DG3 and ordering arbitration of plaintiff's claims against this defendant.
Affirmed in part, reversed in part, and remanded to the trial court for further proceedings on plaintiff's claims against DG3. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION