ANNA JASICKI VS. MORGANSTANLEY SMITHBARNEY LLC (L-1686-19, MONMOUTH COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-1629-19T1
ANNA JASICKI,
Plaintiff-Appellant,
v.
MORGANSTANLEY
SMITHBARNEY LLC,
MORGAN STANLEY
WEALTH MANAGEMENT
d/b/a MORGAN STANLEY,
and JAMES LLOYD,
Defendants-Respondents.
____________________________
Argued January 5, 2021 – Decided January 19, 2021
Before Judges Mawla and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-1686-19.
R. Armen McOmber argued the cause for appellant
(McOmber McOmber & Luber, PC, attorneys; Matthew
A. Luber and R. Armen McOmber, on the briefs).
Thomas A. Linthorst argued the cause for respondents
(Morgan, Lewis & Bockius, LLP, attorneys for Morgan
Stanley Smith Barney, LLC, and Morgan Stanley
Wealth Management; Hamburger Law Firm, LLC,
attorneys for James Lloyd; Thomas A. Linthorst, Tova
Katims, and Sharron E. Ash, on the joint brief).
PER CURIAM
Plaintiff Anna Jasicki appeals from a December 5, 2019 order dismissing
her complaint against defendants Morgan Stanley Smith Barney, LLC, Morgan
Stanley Wealth Management d/b/a Morgan Stanley, and James Lloyd, and
compelling arbitration. We affirm.
Plaintiff was employed at Morgan Stanley beginning in 2011. In May
2019, she filed a three-count complaint in the Law Division alleging disparate
treatment and hostile work environment, sexual harassment and discrimination,
and retaliation pursuant to the New Jersey Law Against Discrimination, N.J.S.A.
10:5-1 to -49. The complaint alleged plaintiff's supervisor, Lloyd, had
committed various acts of sexual harassment and when she rejected his
advances, he retaliated against her. The complaint also alleged when plaintiff
complained about Lloyd's conduct to Morgan Stanley, it protected Lloyd and
retaliated against her.
Defendants moved to compel arbitration, alleging plaintiff waived her
right to prosecute her claims in court because she agreed to arbitration.
Specifically, defendants argued that on September 2, 2015 at 3:19 p.m., Morgan
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Stanley's human resources email account sent an email to plaintiff's work email
with the subject line, "Expansion of CARE 1 Arbitration Program." The body of
the email read:
Expansion of CARE Arbitration Program
September 2, 2015
More than [ten] years ago, Morgan Stanley
launched CARE . . . the [f]irm's internal employee
dispute resolution program. CARE provides employees
with a quick and neutral way to raise and address
workplace concerns. By combining internal (informal
resolution) and external (mediation and arbitration)
dispute resolution mechanisms, CARE promotes open
and honest communication, increases mutual respect,
and resolves employment-related concerns swiftly,
fairly[,] and economically.
Current registered employees are required to
arbitrate most workplace claims under existing FINRA
[Financial Industry Regulatory Authority] rules, and
given the success of the CARE program, Morgan
Stanley is announcing the expansion of CARE and
modifications to related [f]irm policies and programs to
extend arbitration obligations for all U[.]S[.] employees
– registered and non-registered. Effective October 2,
2015, arbitration under the CARE Arbitration Program
will be mandatory for all employees in the U.S., and all
covered claims between the [f]irm and employees will
be resolved through final and binding arbitration on a
non-class, non-collective and non-representative action
basis as more fully described in the Arbitration
Agreement and CARE Guidebook. Please review the
1
CARE stands for Convenient Access to Resolutions for Employees.
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Arbitration Agreement and the CARE Guidebook. It is
important that you read and understand the Arbitration
Agreement and the CARE Guidebook as they describe
the terms, features[,] and details of this program.
Next Steps
By continuing your employment with Morgan
Stanley, you accept and agree to, and will be covered
and bound by the terms of the Arbitration Agreement
and the arbitration provisions of the CARE Guidebook,
unless you elect to opt out of the CARE Arbitration
Program by completing, signing and submitting an
effective CARE Arbitration Program Opt-Out Form by
October 2, 2015 . . . . If you remain employed and do
not timely complete, sign and submit an effective
CARE Arbitration Program Opt-Out Form, the [f]irm's
records will reflect that you have consented and agreed
to the terms of the Arbitration Agreement and the
arbitration provisions of the CARE Guidebook. You
will not have an opportunity to opt out at a later date.
Importantly, should you choose to opt out of the
Arbitration Agreement and CARE Arbitration Program,
you will continue to be bound by the terms of any other
arbitration agreement or obligation applicable to you.
Your decision to opt out of the Arbitration Agreement
and the CARE Arbitration Program will not adversely
affect your employment status with the [f]irm.
If you have questions about the Arbitration
Agreement or the arbitration provisions in the CARE
Guidebook, email carebox@morganstanley.com.
Defendants argued plaintiff agreed to arbitration because she did not opt -
out of the CARE Arbitration Program, her email did not send an out-of-the-
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office reply when it received the CARE email, and plaintiff sent emails on
September 2, 2015, around the time she received the CARE email, namely, at
2:41 p.m., 2:44 p.m., 3:30 p.m., and 4:29 p.m. In support of their motion,
defendants filed a certification from the Morgan Stanley Executive Director and
Global Head of End User Technology Operations, in which he explained that he
"reviewed the metadata for the Jasicki CARE Email, which show that the Jasicki
CARE Email was marked as 'read' in [plaintiff's] mailbox." He further certified
as follows:
Based on my review of Firm records, I can confirm that
[plaintiff's] Exchange mailbox was working properly,
operational and in use by [plaintiff] on September 2,
2015. Any of the following actions would have caused
the Jasicki CARE Email to be marked as "read":
a. [Plaintiff] selected the Jasicki CARE
Email and then opened the Jasicki CARE
Email for review;
b. [Plainiff] selected the Jasicki CARE
Email, which was displayed in the reading
pane;
c. [Plaintiff] selected the Jasicki CARE
Email, and then made a selection to mark
the Jasicki CARE Email as "Read"; or
d. [Plaintiff] set up a rule within her
Exchange mailbox to automatically mark
emails as "read." Morgan Stanley located
and collected a snapshot of [plaintiff's]
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mailbox, which . . . shows that there are a
number of emails [plaintiff] received on
September 2, 2015 that are not marked
"read." That fact indicates that [plaintiff]
did not have a rule set up within her
Exchange mailbox to automatically mark
emails as "read" on that date.
Plaintiff's opposition to the motion argued there was no evidence she
agreed to the CARE Arbitration Program and the mere receipt of an email was
not enough to compel her to arbitrate her claims. She argued the disclaimers
within the email rendered the agreement to arbitrate illusory and the email's
reference to CARE as a part of Morgan Stanley's policies did not create an
express or implied contract to arbitrate. She asserted she did not knowingly or
voluntarily waive her right to a jury trial.
The motion judge granted defendants' motion. She noted there was no
dispute plaintiff did not return the opt-out form and continued her employment
past the October 2 deadline. The judge rejected plaintiff's argument the
arbitration agreement was illusory noting the disclaimer language referred only
to the "at-will employment relationship and makes clear that the agreement to
arbitrate does not affect the at-will employment status." The judge further
stated:
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It is clear to the [c]ourt that . . . plaintiff received
the e-mail. The e-mail was acknowledged in some form
by having been marked as read.
The [c]ourt is satisfied with the certifications
submitted in support of the contention that the method
by which an e-mail is marked as read requires some
action on the part of the plaintiff, and . . . therefore, the
[c]ourt as far as the question of whether the e-mail was
actually received by the plaintiff is put aside . . . .
The judge found there was an agreement to arbitrate, stating:
Reviewing the language of the e-mail in question
here, the [c]ourt is satisfied that the e-mail clearly
placed the plaintiff in this matter on notice, first that
there was an expansion of the CARE arbitration
program. On its face, the e-mail indicates that
continued employment would certainly . . . constitute
agreement to the arbitration agreement.
The face of the e-mail references the arbitration
agreement. Although it does not provide the actual
terms of the arbitration agreement, it does highlight the
fact that the plaintiff is to review the arbitration
agreement as well as review the CARE guidebook.
It indicates that it is important that the employee
read and understand the arbitration agreement, and then
it . . . actually . . . labels what the next steps would be.
And there, it indicates again that continued
employment with Morgan Stanley would constitute an
agreement to be bound by the terms of the agreement,
and then it indicates that the employee can select to opt
out by signing and submitting an arbitration opt-out
form.
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That creates a second step, a second level of
assent. Not only does the employee have to continue
employment, but the employee also must select not to
sign an opt-out form.
And that satisfies the [c]ourt that that provides
sufficient evidence . . . that the plaintiff assented and
agreed to the terms of that arbitration agreement.
The plaintiff did not quarrel with the general
principle that a failure to read the terms of the contract
was not a defense.
On appeal, plaintiff argues there was no agreement to arbitrate because
she did not execute an agreement and the motion judge erred by relying on
metadata which noted the CARE email was marked as read to conclude plaintiff
had agreed to arbitration. Plaintiff also argues the opt-out provision in the
CARE email did not constitute assent to arbitrate her claims.
Our law strongly prefers the enforcement of arbitration agreements
because "arbitration is [the] favored method of resolving disputes." Garfinkel
v. Morristown Obstetrics & Gynecology Assocs., P.A., 168 N.J. 124, 131
(2001). Our review of the validity of an arbitration agreement and the legal
determinations made by the trial court is de novo. Morgan v. Sanford Brown
Inst., 225 N.J. 289, 302-03 (2016).
In determining whether parties have waived their right to resolution of
their dispute before a court in favor of arbitration, we "cannot subject an
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arbitration agreement to more burdensome requirements than those governing
the formation of other contracts." Leodori v. Cigna Corp., 175 N.J. 293, 302
(2003). An arbitration "provision must reflect that an employee has agreed
clearly and unambiguously to arbitrate the disputed claim. Generally, we
determine a written agreement's validity by considering the intentions of the
parties as reflected in the four corners of the written instrument." Ibid.Employers and employees "may agree to arbitrate their disputes by
referring generally to an arbitration policy contained in a separate writing,
provided that the policy itself clearly reflects the employee's knowing and
voluntary waiver of rights." Id. at 308. "'[A]n e-mail, properly couched, can be
an appropriate medium for forming an arbitration agreement.'" Jaworski v. Ernst
& Young, 441 N.J. Super. 464, 474 n.3 (App. Div. 2015) (quoting Campbell v.
Gen. Dynamics Gov't Sys. Corp., 407 F.3d 546, 555-56 (1st Cir. 2005)).
"'[T]o enforce a waiver-of-rights provision[,] . . . the [c]ourt requires some
concrete manifestation of the employee's intent as reflected in the text of the
agreement itself.'" Leodori, 175 N.J. at 299 (quoting Garfinkel, 168 N.J. at 135).
"Although not strictly required, a party's signature to an agreement is the
customary and perhaps surest indication of assent." Leodori at 306-07. In the
absence of a signature, a court should "not assume that employees intend to
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waive [statutory] rights unless their agreements so provide in unambiguous
terms." Id. at 301 (alteration in original) (quoting Garfinkel, 168 N.J. at 135).
"[V]alid waiver[s] result[] only from an explicit, affirmative agreement that
unmistakably reflects the employee's assent." Leodori at 303. Knowledge of
the company's use of an arbitration program is not enough to signify intent to
waive rights. Id. at 306. However, employers need not "negotiate individual
agreements with their entire workforce to implement a companywide arbitration
policy." Id. at 307. Rather, the policy may be effectuated through a signature
or other explicit waiver of rights. Ibid.
"As a general rule, one who does not choose to read a contract before
signing it cannot later relieve himself of its burdens. The onus [is] on plaintiff
to obtain a copy of the contract in a timely manner to ascertain what rights it
waived by beginning the arbitration process." Skuse v. Pfizer, Inc., 244 N.J. 30,
54 (2020) (internal quotations omitted) (quoting Riverside Chiropractic Grp. v.
Mercury Ins. Co., 404 N.J. Super. 228, 238 (App. Div. 2008)).
In Skuse, our Supreme Court addressed the dissemination of an arbitration
agreement in a context similar to the one presented here. There, Pfizer's human
resources department emailed all employees announcing and linking its five-
page Arbitration and Class Waiver Agreement. 244 N.J. at 38. The email stated,
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"both [employees] and Pfizer agree that arbitration will replace state and federal
courts as the place where certain employment disputes are ultimately decided,
and that arbitrators will resolve the disputes, rather than judges or juries." Id. at
39 (internal citations omitted). Under the frequently asked questions (FAQs)
section in the linked document, it stated employees must agree to the arbitration
agreement if they wish to continue their employment, continuation of
employment for sixty days constituted a contractual agreement, and employees
should consult their own attorney for legal questions. Ibid. In bold, the email
stated:
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
[c]ompany sixty . . . 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 [c]ompany.
[Ibid.]
The same day it sent the email, Pfizer sent a second email containing an
"assigned . . . activity" in the company's "module-based training program" on
the agreement, indicating the training was important because the agreement was
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a "condition of [their] employment." Id. at 40. The due date listed was the same
as the effective date of the agreement. Ibid.
The training module included four slides. The first slide stated: "As a
condition of your employment with Pfizer, you and Pfizer agree to individual
arbitration as the exclusive means of resolving certain disputes relating to your
employment." Ibid. The second stated: "Click the 'Resources' tab in the upper-
right corner to review the Agreement [and] . . . print the Agreement and retain
for your records." Ibid. The third stated:
I understand that I must agree to the Mutual Arbitration
and Class Waiver Agreement as a condition of my
employment. Even if I do not click here, if I begin or
continue working for the Company sixty . . . days after
receipt of this Agreement, even without acknowledging
this Agreement, this Agreement will be effective, and I
will be deemed to have consented to, ratified and
accepted this Agreement through my acceptance of
and/or continued employment with the Company.
[Id. at 41.]
Below this statement, "a box with an arrow pointing upward to that language
instructed the employee to 'CLICK HERE to acknowledge.'" Ibid. The fourth
slide thanked the employee for "reviewing" the agreement and provided an email
for questions. Ibid.
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Skuse was an active employee when Pfizer transmitted the emails and
training module. Pfizer's records indicated she received all emails, and Pfizer
sent her an email confirming she completed the training module approximately
a month after receipt of the initial emails. Ibid. As a result, the trial court
dismissed Skuse's employment discrimination complaint and compelled
arbitration.
We reversed the trial court because we found the transmission of the
arbitration agreement and training module by email was "'inadequate to
substantiate an employee's knowing and unmistakable assent to arbitrate and
waive his or her rights of access to the courts.'" Id. at 44. The Supreme Court
noted our concerns that "employees who work in offices are inundated with
incoming e-mails [and that we] took judicial notice that in order to deal with the
volume of e-mails . . . they receive, people frequently skim (or scroll through
without reading) written material sent to them digitally." Id. at 53 (internal
quotations and citations omitted). The Court further noted that we "doubt[ed]
. . . all . . . employees took the time to read the [a]greement linked to the module"
because defendant utilized the term "assigning" the "training module . . .
dilut[ing] the legal significance and necessary mutuality of the contractual
process." Ibid. (internal quotations and citations omitted).
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Notwithstanding these concerns, the Court reversed our decision and
stated: "Even if Skuse were to contend that she did not review Pfizer's . . . e-
mails and their attachments because of the volume of e-mails addressed to her[,]
. . . her failure to review Pfizer's communications would not invalidate the
[a]greement." Id. at 54. The Court concluded
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 . . .
for sixty days. Although Pfizer's "training module" was
not an optimal method of conveying to Skuse her
employer's arbitration policy, Pfizer's . . . 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 Agreement to which
Skuse agreed by virtue of her continued employment.
[Id. at 61.]
Here, similar to Skuse, plaintiff does not dispute that she received the
CARE email. The email subject line and its body unmistakably pertained to the
CARE Arbitration Program. Contrary to plaintiff's argument, the outcome in
Skuse did not turn on the multiplicity of communications sent by Pfizer. Rather,
as the Skuse Court noted, an employee's failure to review the contents of an
email does not invalidate an arbitration agreement. Moreover, arbitration was
not unilaterally imposed; plaintiff had time to either opt out or, as in Skuse,
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assent to arbitration by continuing to work for Morgan Stanley. For these
reasons, we reject plaintiff's argument this dispute centers on metadata or that
defendants were required to prove the extent to which she read the CARE email,
beyond presenting objective evidence that she received the email, in order to
compel arbitration of plaintiff's claims.
Affirmed.
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