RAVIN BHOJ v. OTG MANAGEMENT (L-2073-21, ESSEX COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0628-21
RAVIN BHOJ,
Plaintiff-Appellant,
v.
OTG MANAGEMENT, LLC
and PEG OERTER,
Defendants-Respondents.
__________________________
Submitted March 2, 2022 – Decided July 18, 2022
Before Judges Gilson and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-2073-21.
Castronovo & McKinney, LLC, attorneys for appellant
(Paul Castronovo and Edward W. Schroll, of counsel
and on the briefs).
Cozen O'Connor, PC, attorneys for respondents
(Michael C. Schmidt, of the New York bar, admitted
pro hac vice; Jason A. Cabrera and Janice Sued Agresti,
on the brief).
PER CURIAM
Defendants OTG Management, LLC (OTG) and Peg Oerter, OTG's
Regional Director of Human Resources (HR), hired plaintiff Ravin Bhoj to be
OTG's HR Director at Newark Liberty International Airport. Bhoj was
employed by OTG from October 5, 2020, to February 3, 2021, when he was
terminated. After Bhoj was terminated, he filed a complaint on March 16, 2021,
alleging defendants had violated the Conscientious Employee Protection Act
(CEPA), N.J.S.A. 34:19-1 to -14, by wrongfully terminating him after he
confronted Oerter about OTG's unlawful payroll practices.
On defendants' motion, the trial court dismissed Bhoj's complaint with
prejudice and compelled his claim to arbitration in an order entered on October
22, 2021. Bhoj now appeals the October 22 order, raising the following
arguments for our consideration:
POINT I
PLAINTIFF DID NOT WAIVE HIS STATUTORY
RIGHT TO A JURY TRIAL BECAUSE
DEFENDANTS NEVER GAVE HIM THE
ARBITRATION AGREEMENT.
A. Arbitration Agreements Require Mutual
Assent Like Any Other Contract.
B. Plaintiff Never Assented To Arbitrate
His CEPA Claim Because Defendants
Never Provided The Arbitration
Agreement.
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POINT II
THE MOTION COURT ERRED IN DECIDING
DISPUTED QUESTIONS OF FACT.
Because there are disputed facts as to whether plaintiff assented to arbitrate his
CEPA claim, we vacate the order and remand for a plenary hearing.
I.
We glean these facts from the motion record. On September 11, 2020,
Oerter emailed an offer letter along with other documents to Bhoj for him to
review and consider. At the close of her email, Oerter added, "If everything is
agreeable, please sign and date the documents and return to me."
In addition to providing salary and benefits information, the offe r letter
included the following notice:
Additionally, you will be required to sign an Agreement
Regarding Post-Employment Competition and Mutual
Agreement to Arbitrate, copies of which are attached
this letter [sic]. You agree that employment with us and
the benefits of that employment are sufficient
consideration for the Agreement Regarding Post-
Employment Competition and Mutual Agreement to
Arbitrate which you should carefully review and
consider.
[(emphases added).]
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The following day, September 12, 2020, Bhoj accepted the offer and
signed and returned all the documents he received. On October 5, 2020, Bhoj
attended OTG's onboarding training as directed by Oerter. The training schedule
included a thirty-minute block for employees to complete HR paperwork in
Dayforce, OTG's electronic onboarding program.
After Bhoj filed his CEPA complaint, defendants moved to dismiss the
complaint and compel arbitration, despite admitting that the Mutual Agreement
to Arbitrate was not included among the attachments to the offer letter. Also,
notably, the Agreement Regarding Post-Employment Competition (Noncompete
Agreement), which was attached to the offer letter, included an arbitration clause
regarding post-employment competition disputes.
However, to support their motion to compel arbitration, defendants
submitted an unsigned copy of an Arbitration Agreement titled "Mutual
Agreement to Arbitrate Claims." In a certification, Oerter averred that the
"Mutual Agreement to Arbitrate" was among the documents uploaded to
Dayforce for Bhoj to review during the onboarding training. Attached to the
certification was "[a] screenshot showing the documents" Oerter asserted Bhoj
"would have seen when he logged in to Dayforce." The screenshot listed two
Arbitration Agreements – "Mutual Agreement to Arbitrate (non-union)" and
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"Mutual Agreement to Arbitrate (union)." 1 Oerter certified that although the
Arbitration Agreement defendants submitted was unsigned, Bhoj "signed every
other document that was provided to him through Dayforce."
The Arbitration Agreement relied on by defendants provided in pertinent
part:
In recognition of the fact that differences may
arise between the undersigned ("Employee") and OTG
. . . and [its] respective officers, employees, directors,
agents, and representatives (collectively, "Employer")
arising out of or in connection with Employee's
employment with Employer or the termination of that
employment, and in recognition of the fact that the
resolution of differences in the courts is rarely timely
or cost-effective for either Party, Employer and
Employee (collectively, the "Parties") have entered into
this Mutual Agreement to Arbitrate Claims
("Agreement") in order to establish and gain the
benefits of a speedy, impartial, and cost-effective
dispute resolution procedure.
This Agreement is deemed to be a written
agreement to arbitrate pursuant to the Federal
Arbitration Act (FAA), 9 U.S.C. §§ 1-16. . . . Employee
hereby acknowledges that he/she has read and
understands the implications of this Agreement.
1. EMPLOYMENT AT-WILL: Employee is employed
on an at-will basis. The Parties mutually agree that this
Agreement does not contain or constitute a guarantee of
employment for any specific period. This means that
Employee may resign his/her employment at any time
1
A Spanish version of the Arbitration Agreement was also listed.
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and that Employer may terminate Employee's
employment at any time.
2. CONSIDERATION: Employee acknowledges that
his/her execution of this Agreement is a condition of
his/her employment or continued employment with
Employer. Employee also acknowledges that his/her
employment or continued employment constitutes the
consideration for Employee's agreement to the terms of
this Agreement, and that such consideration is
adequate. . . .
3. CLAIMS: The Parties mutually agree that, except as
provided below, the dispute resolution procedure set
forth in this Agreement applies to any and all claims,
grievances, and/or causes of action (whether based in
contract, tort, statute, regulation or otherwise), arising
out of or in connection with Employee's employment
relationship with Employer, the terms and conditions of
employment, the termination of employment or any
post-employment obligations of the Parties, including,
but not limited to, all claims arising under federal, state
or local laws and regulations . . . , and any common law
claims recognized now or later (hereinafter referred to
as "Claims").
EMPLOYEE AND EMPLOYER HEREBY WAIVE
THE RIGHT TO GO TO COURT, INCLUDING THE
RIGHT TO A JURY, IN ORDER TO RESOLVE
CLAIMS. DISCOVERY AND RIGHTS TO APPEAL
IN ARBITRATION ARE GENERALLY MORE
LIMITED THAN IN A LAWSUIT AND OTHER
RIGHTS THAT EMPLOYEE AND EMPLOYER
WOULD HAVE IN COURT MAY NOT BE
AVAILABLE IN ARBITRATION.
....
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4. SUBMISSION OF CLAIMS TO ARBITRATION:
The Parties hereby agree to attempt, in good faith, to
resolve any and all Claims promptly by utilizing the
procedures outlined in any employee handbook/manual
. . . . If a resolution acceptable to both Employer and
Employee does not result from the foregoing, the Claim
shall be submitted to and determined exclusively by
binding arbitration in accordance with the
Comprehensive Arbitration Rules and Procedures of
JAMS (or any successor of that organization in effect
at the time the arbitration is initiated) . . . . The duty to
arbitrate Claims under this Agreement survives any
termination of Employee's employment with Employer.
....
6. NO CLASS ACTIONS. Employee and Employer
expressly understand and acknowledge that by signing
this Agreement they are waiving their rights to trial by
jury and their rights to pursue class action, collective
action, multiple-party, and private attorney general
remedies in any court and in any arbitration forum,
except as expressly provided herein.
[(emphases added).]
Other than signing, the Arbitration Agreement did not provide a means for an
employee to express assent. 2
Bhoj opposed the motion to compel arbitration and certified that he
"never [saw] . . . nor . . . signed" the Arbitration Agreement during onboarding.
2
See Restatement (Second) of Contracts § 60 (Am. Law Inst. 1981) (providing
that "[i]f an offer prescribes the place, time or manner of acceptance[,] its terms
in this respect must be complied with in order to create a contract").
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Bhoj also averred that he "did not realize that the Arbitration Agreement was a
separate document from the Noncompete Agreement" because "the Noncompete
Agreement include[d] an arbitration provision, and the Noncompete Agreement
was all that [defendants] . . . provided" to him. Bhoj certified that he "never
knew" and was never informed "there was a separate Arbitration Agreement
from the Noncompete Agreement" and that "[he] never agreed to the Arbitration
Agreement" relied on by defendants. Rather, "[his] understanding was that the
arbitration provision of the Noncompete Agreement was the scope of [his]
agreement to arbitrate matters with OTG" and that the agreement to arbitrate
was "limited to claims pertaining to the Noncompete Agreement itself."
Nonetheless, in an October 22, 2021 order, the judge granted defendants'
motion and dismissed the complaint "with prejudice." The judge cited the
principle articulated in Atalese v. U.S. Legal Services Group, L.P., 219 N.J. 430(2014), where the Court noted that an enforceable arbitration agreement requires
"'the knowing assent of both parties to arbitrate, and a clear mutual
understanding of the ramifications of that assent.'" Id. at 442-43 (quoting
NAACP of Camden Cnty. E. v. Foulke Mgmt. Corp., 421 N.J. Super. 404, 425
(App. Div. 2011)).
The judge determined:
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This standard was satisfied by the [d]efendant[s']
employment hiring and onboarding process wherein
[Bhoj] had notice and agreed to and/or completed all
forms of employment and provision of information.
[Bhoj] was also provided with the Arbitration
[A]greement via Dayforce and was instructed during
orientation to review all the materials provided in
Dayforce before signing. Even without a signature,
[Bhoj] was provided the Arbitration Agreement at the
beginning of his employment and his continuation of
employment after receiving the Arbitration Agreement
implied his assent to the agreement.
This appeal followed.
II.
The enforceability of an arbitration agreement is a question of law, which
we review de novo. Skuse v. Pfizer, Inc., 244 N.J. 30, 46 (2020). "Similarly,
the issue of whether parties have agreed to arbitrate is a question of law that is
reviewed de novo." Jaworski v. Ernst & Young U.S. LLP., 441 N.J. Super. 464,
472 (App. Div. 2015). Thus, we exercise de novo review of a trial court's order
compelling arbitration, Goffe v. Foulke Mgmt. Corp., 238 N.J. 191, 207 (2019),
and "[i]n reviewing such orders, we are mindful of the strong preference to
enforce arbitration agreements, both at the state and federal level ," Hirsch v.
Amper Fin. Servs., LLC, 215 N.J. 174, 186 (2013). That preference, "however,
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is not without limits." Garfinkel v. Morristown Obstetrics & Gynecology
Assocs., P.A., 168 N.J. 124, 132 (2001).
Arbitration agreements are subject to customary contract law principles.
Atalese, 219 N.J. at 442 (2014). Under our State's defined contract-law
principles, a valid and enforceable agreement requires: (1) consideration; (2) a
meeting of the minds; and (3) unambiguous assent. Id. at 442-45. Because
arbitration provisions involve the waiver of rights, "the waiver 'must be clearly
and unmistakably established.'" Id. at 444 (quoting Garfinkel, 168 N.J. at 132).
Therefore, in employment settings, "a valid waiver results only from an explicit,
affirmative agreement that unmistakably reflects the employee's assent."
Leodori v. CIGNA Corp., 175 N.J. 293, 303 (2003).
Unmistakable assent is demonstrated by "'some concrete manifestation of
the employee's intent as reflected in the text of the agreement itself.'" Id. at 300(quoting Garfinkel, 168 N.J. at 135). Thus, "[w]hen one party . . . presents a
contract for signature to another party, the omission of that other party's
signature is a significant factor in determining whether the two parties mutually
have reached an agreement." Id. at 305.
In Leodori, our Supreme Court determined an arbitration provision was
unenforceable because the plaintiff had not signed a specific form designated to
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effect employee assent to arbitration. Id. at 308. The arbitration clause was
embedded in an employee handbook, and the employer distributed two forms
for employees to sign, one acknowledging receipt of the handbook and the other
confirming agreement to arbitration terms. Id. at 297-98. The plaintiff signed
the former, not the latter. Ibid.
The Court held the arbitration provision was unenforceable against the
plaintiff, reasoning that "[w]ithout [the] plaintiff's signature on the
[a]greement . . . we cannot enforce the arbitration provision unless we find some
other explicit indication that the employee intended to abide by that provision."
Id. at 305. "Finding no such proof," the Court "h[e]ld for plaintiff." Id. at 307.
The Court reached its decision despite acknowledging that the "plaintiff knew
of the company's arbitration policy." Id. at 306.
More recent cases provide examples of when assent to an arbitration
agreement is ascertainable without an employee's signature. In Skuse, the Court
determined an arbitration agreement was enforceable regardless of whether the
plaintiff had signed it because the document expressly stated that continued
employment beyond a specific period would constitute assent. 244 N.J. at 36-
38.
The contract in Skuse read:
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You understand that your acknowledgement of this
[a]greement is not required for the [a]greement to be
enforced. If you begin or continue working for the
Company sixty (60) days after receipt of this
[a]greement, even without acknowledging this
[a]greement, this [a]greement will be effective, and you
will be deemed to have consented to, ratified and
accepted this [a]greement through your acceptance of
and/or continued employment with the Company.
[Id. at 39 (emphases added).]
Because it was undisputed that the plaintiff had received the agreement
and continued working for thirteen months afterward, the Court held plaintiff
had assented to the arbitration provisions. Id. at 36, 60. The Court also noted
that the plaintiff had viewed the arbitration agreement through a computer-based
training module and clicked an acknowledgment icon that immediately followed
language in the agreement that "used several other terms that denote assent." Id.
at 61.
In enforcing the arbitration agreement, the Court explained:
In sum, Pfizer's Agreement explained to Skuse in clear
and unmistakable terms the rights that she would forego
if she assented to arbitration by remaining employed at
Pfizer for sixty days. Although Pfizer's "training
module" was not an optimal method of conveying to
Skuse her employer's arbitration policy, Pfizer's May 5
and 6 e-mails, the link to the Agreement contained in
those e-mails, the "FAQs" page, and the summaries that
appeared on the four pages collectively explained, with
the clarity that our law requires, the terms of the
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Agreement to which Skuse agreed by virtue of her
continued employment.
[Ibid.]
Likewise, in Jaworski, we enforced an arbitration agreement against a
plaintiff who received but did not sign the agreement, which provided continued
employment beyond a specific date constituted assent. 441 N.J. Super. at 474.
Specifically, the agreement read: "An Employee indicates his or her agreement
to the [arbitration program] and is bound by its terms and conditions by
beginning or continuing employment with [the company] after July 18, 2007
(the 'Effective Date')." Ibid. We reasoned the plaintiff's continued employment
beyond the agreement's effective date "manifest[ed] his intent to be bound
pursuant to the unambiguous and specifically-emphasized terms of the
[arbitration program]." Ibid.
The Skuse Court distinguished Leodori. In Skuse, the Court underscored
that "[n]o form intended to confirm the employee's assent was left unsigned,"
and "the prescribed form of assent . . . was the employee's decision to remain
employed after the effective date." 244 N.J. at 59. Similarly, in Jaworski, we
distinguished Leodori by emphasizing how in Leodori, the company's "own
documents contemplated [the employee]'s signature as a concrete manifestation
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of his assent." 441 N.J. Super. at 474 (alteration in original) (quoting Leodori,
175 N.J. at 306).
If a case involves "questions of fact concerning the mutuality of assent to
the arbitration provision," we may remand the matter for the trial court to resolve
those issues. Knight v. Vivint Solar Dev., LLC, 465 N.J. Super. 416, 427-28
(App. Div. 2020), certif. denied, 246 N.J. 222 (2021), and certif. denied, 246
N.J. 223 (2021). In Knight, where the plaintiff asserted she never saw or signed
the purported arbitration agreement and claimed the agreement presented in
court had "a forged signature," we vacated an order compelling arbitration and
remanded "for a plenary hearing," given the parties' conflicting accounts. Id. at
419, 423. We acknowledged that formation of an arbitration agreement is an
issue "to be decided by the trial court" and "conclude[d] there exist[ed] questions
of fact concerning the mutuality of assent to the arbitration provision, which
[was] necessary to bind both parties to arbitration." Id. at 426-27.
Here, Bhoj stresses there was no "meeting of the minds" or "mutual
assent" because defendants failed to attach the Arbitration Agreement to his
offer letter, and he never saw the document during onboarding or prior to the
litigation. Furthermore, Bhoj contends it was reasonable for him to believe the
Arbitration Agreement and Noncompete Agreement were one document because
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the Noncompete Agreement contained an arbitration clause. He contends the
record does not support the judge's finding that defendants provided the
Arbitration Agreement during onboarding, particularly in light of his conflicting
certification which the judge ignored and defendants' submission of an unsigned
Arbitration Agreement.
As in Knight, we conclude "there exist questions of fact concerning the
mutuality of assent to the arbitration provision." Id. at 427. Defendants admit
the Arbitration Agreement was not attached to the offer letter. Further, the
record lacks any affirmative indication that Bhoj assented to the Arbitration
Agreement during onboarding, given his certification that he did not see the
document and Oerter's certification that Bhoj signed "every other document"
provided through Dayforce.
Moreover, the Arbitration Agreement lacked express language declaring
that continued employment beyond a specific date would effectuate assent,
noting instead that "execution of th[e] Agreement is a condition of his/her
employment" and "continued employment constitutes the consideration for
Employee's agreement to the terms of this Agreement." Thus, even if Bhoj had
reviewed the Arbitration Agreement during onboarding, because these
provisions do not unambiguously state that continued employment beyond a
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certain period would constitute assent, he cannot be deemed to have assented
through continued employment alone. See Skuse, 244 N.J. at 51 (noting that
employers must "inform[] employees, with the clarity that our waiver-of-rights
law requires, that continued employment after the policy's effective date would
constitute acceptance of the [a]greement's terms").
Given the conflicting certifications, we are unable to determine how the
judge could ascertain without an evidentiary hearing whether plaintiff assented
to the Arbitration Agreement. A motion judge should not resolve disputes based
solely on competing certifications. See Palmieri v. Palmieri, 388 N.J. Super.
562, 564 (App. Div. 2006). "When a genuine issue of material fact exists, a
plenary hearing is required." Ibid.; see also Bruno v. Gale, Wentworth & Dillon
Realty, 371 N.J. Super. 69, 76-77 (App. Div. 2004) (reversing and remanding
for a plenary hearing where the trial judge reached a "decision based on
certifications containing conflicting factual assertions").
Ordinarily, we apply a deferential standard in reviewing factual findings
by a judge. Balducci v. Cige, 240 N.J. 574, 594 (2020). However, because the
motion judge made no credibility determinations and rendered her decision
based upon conflicting certifications, the judge's findings lacked the required
evidentiary support to grant defendants' motion. We therefore remand for the
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judge to conduct a plenary hearing to resolve the disputed factual issues
pertaining to plaintiff's receipt of and assent to the Arbitration Agreement.
While we offer no view on the outcome of the remand proceedings, we
note that if the judge enters another order compelling arbitration, the complaint
should not be dismissed with prejudice. Rather, the matter should be stayed
pending the arbitration. See 9 U.S.C. § 3 (stating a court action should be stayed
if the action involves "any issue referable to arbitration").
Reversed and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
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