Ackerman v. The Money Store

• Decision Date: 15 October 1998
• Citation: 321 N.J. Super. 308,728 A.2d 873
• Parties: Beth ACKERMAN, Plaintiff, v. THE MONEY STORE, Germain Corio, Susan Santana Gates, and Hari Ahrens, Defendants.
• Court: New Jersey Superior Court

728 A.2d 873

321 N.J. Super. 308

Beth ACKERMAN, Plaintiff, v. THE MONEY STORE, Germain Corio, Susan Santana Gates, and Hari Ahrens, Defendants.

Superior Court of New Jersey, Law Division, Union County.

Decided October 15, 1998.

Bruce P. McMoran, Iselin (McMoran & Associates of counsel, McMoran and Michael F. O'Connor on the briefs), for plaintiff.

Steven Backfish (Ross & Hirsh), for defendants.

James R. Michael, Deputy Attorney General, for The New Jersey Division of Law, Division on Civil Rights (Peter Verniero, Attorney General of the State of New Jersey).

KENTZ, J.S.C. (Retired and temporarily assigned on recall).

This matter is before the court by way of cross motions for summary judgment. The action began with the application of plaintiff, Beth Ackerman (Ackerman or Plaintiff), for a temporary restraining order in the Chancery Division, General Equity, wherein Ackerman sought an order restraining defendant, The Money Store, from compelling a New Jersey resident to sign a form entitled "Mutual Agreement to Arbitrate Claims."

I. Facts

Plaintiff alleged the following facts in her complaint:

Ackerman claims that she accepted an offer of employment from defendant, The Money Store, on June 16, 1997, on the same day the offer was made. Prior to this, she states that she was offered employment by Security Atlantic Mortgage Company as a residential mortgage closer at a salary of $30,000 per year. However, she rejected that offer on June 16, 1997 and began her employment on June 30, 1997, as a mortgage funder/closer with The Money Store at a salary of $30,000 per year, in addition to bonuses and fringe benefits.

Plaintiff contends that on July 8, 1997, she received a new hire package that contained a form entitled "Mutual Agreement to Arbitrate Claims" (the Agreement or Arbitration Agreement). Plaintiff claims that the Agreement required the employee to waive her right to try in a court of law any discrimination and employment claim which arose during her employment with the defendant, except for unemployment and worker's compensation claims. This contract specifically provided, at paragraph 1, the following:

The Company and I mutually consent to the resolution by arbitration of all claims or causes of action, (collectively, "claims"), arising out of the termination of my employment or any claim of discrimination or unlawful harassment of any kind, that the Company may have against me or that I may have against the Company or against its officers, directors, employees, or agents.... 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 (express or implied); tort claims; claims for discrimination (including, but not limited to, race, sex, sexual harassment, or any type of unlawful harassment, religion, national origin, age, martial status, medical condition, disability, or sexual orientation); and claims for violation of any federal, state, or other governmental law, statute, regulation, or ordinance, including, but not limited to, all claims arising under Title VII of the Civil Rights Act of 1969, the Age Discrimination Act of 1967, the California Fair Employment & Housing Act, the Consolidated Omnibus Budget Reconciliation Act of 1985, or Employee Retirement Income Security Act.

In arbitrating the claims, the proposed Agreement provided for discovery at paragraph 5, permitted each party to be represented by an attorney at paragraph 4, and set forth a procedure for selecting an arbitrator at paragraph 10. The Agreement further stated that "both the Company and I agree that neither of us shall initiate or prosecute any lawsuit or administrative action (other than an administrative charge of discrimination) in any way related to any claim covered by this Agreement" at paragraph 10. According to paragraph 11, the company and employee were to share equally in the costs and fees of the Arbitrator.

Plaintiff further contends that she received a memo on August 20, 1997, from Michael Cook, a compliance specialist with The Money Store, which directed her to sign the Arbitration Agreement. When she did not do so, plaintiff maintains that the office manager of The Money Store's Clark, New Jersey office, Germain Corio (Corio), advised her on August 29, 1997, that she was terminated because she refused to sign the Agreement. After discussing her problem with her attorney, Plaintiff signed the Agreement with the following notation: "I, Beth L. Ackerman have signed this form under protest due to the threat of termination by The Money Store if I do not sign ." On September 2, 1997, plaintiff was informed by defendant Susan Gates (Gates), a supervisory employee of The Money Store, that the defendant refused to accept her Agreement with the "under protest" notation and that she was terminated.

The complaint sets forth five counts under which relief is sought. Count One presents plaintiff's claim for wrongful termination. Count Two presents a claim for violation of New Jersey Law Against Discrimination, N.J.S.A. 10:5-49 (LAD or the Act). Plaintiff demands under these counts the following: (a) compensatory damages including back pay, front pay, benefits, pain, suffering, humiliation, interest, attorney's fees and costs; (b) an order which would bar defendant from coercing or threatening any New Jersey resident into signing the Arbitration Agreement or barring defendant from terminating the employment of any New Jersey resident who refuses to enter in The Money Store's arbitration agreement. Count Three alleges defendants Gates, Corio, and Hari Ahrens (Ahrens), employees of The Money Store, aided and abetted The Money Store in discriminating against plaintiff for refusing to relinquish her rights under N.J.S.A. 10:5-12(d). Count Four sets forth a cause of action based on promissory estoppel, alleging that plaintiff relied on defendant's promise of employment in rejecting the offer of employment with Security Mortgage Co. Inc. Count Five alleges fraudulent concealment, claiming defendant concealed the fact that a condition of employment was the signing of the Arbitration Agreement. Ackerman's Temporary Restraining Order application sought an order which would compel defendant to reinstate plaintiff, but such relief is no longer being sought, nor is it requested in the verified complaint.

II. Procedural History

As stated previously, plaintiff sought a temporary restraining order to enjoin defendant from requiring other New Jersey residents to sign the Agreement to Arbitrate. That request was denied by way of this court's November 3, 1998 letter to the parties which cited a lack of irreparable harm as the basis for the denial. At that time the court stated that the case would remain in the Chancery Division, General Equity Part. In addition, the court ruled that neither plaintiff nor defendant had asserted any factual disputes and the court would therefore deem the pleadings to constitute cross motions for summary judgment, pursuant to R. 4:46 and Concerned Citizens of Wildwood Crest v. Pantalone, 185 N.J.Super. 37, 48, 447 A.2d 200 (App.Div.1982).

Plaintiff and defendant submitted briefs and appeared for oral argument regarding the cross-motions for summary judgment. At that time the court questioned the parties as to whether N.J.S.A. 10:5-13 required that the Office of Administrative Law's Division on Civil Rights (Division) receive notice of the action and copies of pleadings and briefs, which had not been done at that time. On March 3, 1998, a Consent Order Permitting the Division to intervene was filed. Subsequently, the Division filed a brief addressing the plaintiff's claims under the LAD. Thereafter, the parties appeared for oral argument.

At the argument plaintiff contended that not only was she entitled to summary judgment on Counts Two and Three (the LAD claims), but also on the count alleging wrongful termination, promissory estoppel, and fraudulent concealment as defendant failed to oppose such claims by way of affidavits or certifications as required by R. 4:46-2(b) and R. 4:46-5. Plaintiff further claimed that all facts not disputed were deemed admitted. Thus, plaintiff argued that she was entitled to summary judgment as a mater of law on those counts. Defendant opposed such a claim. The court then instructed the parties to brief the issues of whether defendant's failure to submit affidavits or oppose the counts other than the LAD claims rendered those facts not opposed as admitted and if summary judgment was therefore appropriate. The parties filed briefs and reply briefs on this issue.

In the interim period, it was determined that it appeared that the primary relief sought was monetary. Therefore, the court rescinded its prior ruling that the case should remain in General Equity and transferred the case to the Law Division pursuant to R. 4:3-1(b). The parties were so advised and an Order Transferring the Action to the Law Division was entered. The court, however, indicated that he would determine the pending issues sitting as a Judge of the Law Division. The court will now address the cross motions for summary judgment.

III. Count Two: Violation of N.J.S.A. 10:5-12(d) by The Money Store

The main issue before this court is the plaintiff's claim that defendant violated Section 10:5-12(d) of the LAD when they threatened and terminated plaintiff for refusing to give up her statutory right of trial by jury. Plaintiff and defendant have submitted voluminous briefs and letter briefs regarding this issue. While the court has considered all arguments made both in writing and orally, I will briefly summarize each party's arguments concerning the alleged violation of the LAD.

Plaintiff argues that the LAD, under N.J.S.A. 10:5-4, states that the opportunity to obtain employment is a civil right and prohibits employers from discriminating against employees. Plaintiff maintains that N.J.S.A. 10:5-13...