Tomorrow, September 16, judges on Part B of the Appellate Division will hear oral argument in Cintron v. Brink’s, Incorporated. That is a hostile work environment case brought under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq.
The case has an unusual procedural history. Defendants filed a motion to dismiss based on the provisions of a Mutual Arbitration Agreement. Plaintiff did not respond to that motion, and a Law Division judge granted the motion. Plaintiff then sought reconsideration on the basis that she had inadvertently failed to respond to the motion to dismiss. A different judge granted reconsideration and undid the dismissal.
According to defendants, who appealed as of right since rulings compelling or refusing to compel arbitration are immediately appealable, the second Law Division judge held that “Plaintiff (1) did not receive adequate consideration for entering the arbitration agreement, (2) did not understand what she was signing, and (3) did not understand that she could ‘opt out’ of the arbitration agreement.” The second judge also treated defendants’ motion to dismiss as a motion for summary judgment, an action that defendants also contest on appeal.
Among other things, defendants argue on appeal that the Law Division should not have granted reconsideration to rescue plaintiff from her failure to oppose the motion to dismiss. Defendants also assert that the continued employment of plaintiff was adequate consideration for the arbitration agreement, that whether plaintiff understood the agreement she signed or her rights under it was not a basis to reject that agreement, and that the motion to dismiss, filed under Rule 4:6-2(a) for lack of subject matter jurisdiction was not subject to being converted to a summary judgment motion, as only motions to dismiss for failure to state a claim, under Rule 4:6-2(e) are so subject.
Plaintiff responds, among other things, that the Law Division properly exercised discretion to consider and then grant reconsideration, and to treat defendants’ original motion as a summary judgment motion, as that motion relied on the Mutual Arbitration Agreement, which went beyond plaintiff’s Complaint. Plaintiff also asserts that defendants rely primarily on unpublished cases for the consideration argument, and that the meeting of the minds required to enforce the Mutual Arbitration Agreement was lacking because of plaintiff’s lack of understanding of that agreement.
Plaintiff also contends that the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, 9 U.S.C. § 401 et seq. (“EFFA”), trumps the Federal Arbitration Act and precludes arbitration here. Defendants replied that plaintiff did not raise the EFFA before the Law Division and that, in any event, the EFFA has nothing to say about arbitration in this case. It appears that the EFFA has been raised in several other employment matters, of which at least two are pending on appeal to the Appellate Division. If the Appellate Division considers the EFFA here, the case may have importance beyond just this matter.
The briefs in this appeal can be found here. The oral argument can be viewed, live, at this link.
