Skuse v. Pfizer, Inc., A-86 September Term 2018

• Court: United States State Supreme Court (New Jersey)
• Writing for the Court: JUSTICE PATTERSON delivered the opinion of the Court.
• Citation: 236 A.3d 939,244 N.J. 30
• Docket Number: 082509,A-86 September Term 2018
• Decision Date: 18 August 2020
• Parties: Amy SKUSE, Plaintiff-Respondent, v. PFIZER, INC., John D. Witzig, Paul Mangeot, and Connie Corbett, individually, jointly, severally and/or in the alternative, Defendant-Appellants.

244 N.J. 30
236 A.3d 939

Amy SKUSE, Plaintiff-Respondent,
v.
PFIZER, INC., John D. Witzig, Paul Mangeot, and Connie Corbett, individually, jointly, severally and/or in the alternative, Defendant-Appellants.

A-86 September Term 2018
082509

Supreme Court of New Jersey.

Argued February 3, 2020
Decided August 18, 2020

Thomas A. Linthorst argued the cause for appellants (Morgan, Lewis & Bockius and Jackson Lewis, attorneys; Thomas A. Linthorst, Princeton, Sam S. Shaulson, John M. Nolan, Carla D. Macaluso, Berkeley Heights, and Timothy M. McCarthy, on the briefs).

Alan H. Schorr argued the cause for respondent (Schorr & Associates, attorneys; Alan H. Schorr, Cherry Hill, on the briefs).

David R. Kott argued the cause for amici curiae New Jersey Business & Industry Association, Commerce and Industry Association of New Jersey, and New Jersey Chamber of Commerce (McCarter & English, attorneys; David R. Kott and Edward J. Fanning, Jr., of counsel and on the brief, and Steven H. Del Mauro, Newark, on the brief).

Andre´e P. Laney argued the cause for amicus curiae Employers Association of New Jersey (Ford & Harrison and Employers Association of New Jersey, attorneys; Mark A. Saloman, of counsel and on the brief, and Jeffrey A. Shooman, Berkeley Heights, on the brief).

William D. Wright argued the cause for amicus curiae New Jersey Association for Justice (The Wright Law Firm, attorneys; William D. Wright and David T. Wright, on the brief).

Richard M. Schall argued the cause for amicus curiae National Employment Lawyers Association of New Jersey (Schall & Barasch, attorneys; Richard M. Schall, Moorestown, on the brief).

Leah S. Robinson submitted a brief on behalf of amicus curiae Chamber of Commerce of the United States of America (Mayer Brown, attorneys; Leah S. Robinson, Archis A. Parasharami, of the District of Columbia bar, admitted pro hac vice, and Daniel E. Jones, of the District of Columbia bar, admitted pro hac vice, on the brief).

Gavin J. Rooney submitted a brief on behalf of amicus curiae New Jersey Civil Justice Institute (Lowenstein Sandler, attorneys; Gavin J. Rooney and Justin Corbalis, Roseland, on the brief).

JUSTICE PATTERSON delivered the opinion of the Court.

236 A.3d 942

244 N.J. 36

In this appeal, we review the trial court's decision dismissing plaintiff Amy Skuse's complaint against her former employer, Pfizer, Inc., and ordering arbitration of her employment discrimination claims.

In 2016, four years after it hired Skuse, Pfizer notified her of a new arbitration policy that would become a condition of her employment. Under that policy, if an employee continued to work for Pfizer for sixty days after receiving a copy of Pfizer's Mutual Arbitration and Class Waiver Agreement (Agreement), that employee would be deemed to have assented to the Agreement, waived the right to litigate in court several categories of employment-related claims, and agreed to arbitrate those claims. Skuse opened e-mails that linked to the Agreement, completed a "training module" regarding the arbitration policy, and clicked a box on her computer screen that asked her to "acknowledge" her obligation to assent to the Agreement as a condition of her continued employment after sixty days.

Skuse continued to work for Pfizer for another thirteen months. Following a dispute between Pfizer management and Skuse as to whether she should be required to receive a particular vaccine, Pfizer terminated her employment.

Skuse filed this action against Pfizer and three of its employees, asserting claims based on the Law Against Discrimination, N.J.S.A. 10:5-1 to -49 (LAD). Pfizer moved to dismiss the complaint

244 N.J. 37

and compel arbitration. The trial court enforced Pfizer's Agreement, dismissed the complaint, and ordered the parties to arbitrate Skuse's claims.

The Appellate Division reversed the trial court's determination. It held that Pfizer's communications to Skuse regarding the Agreement were inadequate to ensure that she knowingly and unmistakably agreed to arbitrate her claims and waive her right of access to the courts. Skuse v. Pfizer Inc., 457 N.J. Super. 539, 561, 202 A.3d 1 (App. Div. 2019). The Appellate Division identified three aspects of Pfizer's communications to Skuse as grounds for its decision: Pfizer's use of e-mails to disseminate the Agreement to employees already inundated with e-mails; its use of a "training module" or a training "activity" to explain the Agreement; and its instruction that Skuse click her computer screen to "acknowledge" her obligation to assent to the Agreement in the event that she remained employed for sixty days, not to "agree" to the Agreement. Id. at 555-61, 202 A.3d 1.

We conclude that Pfizer's Agreement and related communications informed Skuse that if she remained a Pfizer employee more than sixty days from her receipt of that Agreement, she was deemed to assent to it. We hold that those communications clearly and unmistakably explained

236 A.3d 943

the rights that Skuse would waive by agreeing to arbitration, thus complying with our waiver-of-rights case law. We further determine that Pfizer's delivery of the Agreement by e-mail did not warrant its invalidation. We view Pfizer's use of the word "acknowledge" -- in its request that Skuse click to "acknowledge" her obligation to arbitrate disputes with her employer if she remained a Pfizer employee sixty days later -- to be appropriate in the circumstances of this case, given the terms of Pfizer's arbitration policy and other expressions of assent that immediately preceded that request. We concur with the Appellate Division that Pfizer should not have labeled its communication explaining its arbitration agreement a "training module" or training "activity," but we do not view that as a basis to invalidate the Agreement.

244 N.J. 38

Accordingly, we reverse the Appellate Division's determination and reinstate the trial court's judgment dismissing the complaint and ordering arbitration.

I.

A.

On May 5, 2016, Pfizer's Human Resources Department sent an e-mail to Pfizer employees at their corporate e-mail addresses.¹ The e-mail announced Pfizer's five-page Agreement and included a link to that document.

The first section of the Agreement, entitled "Mutual Arbitration Agreement," provided:

Except as expressly set forth in section 3, titled, "Claims Not Covered by this Agreement," all disputes, claims, complaints, or controversies ("Claims") that you have now or at any time in the future may have against Pfizer and/or any of its parents, subsidiaries, affiliates, predecessors, successors, assigns, current and former officers, directors, employees, and/or those acting as an agent of the Company (which make up the definition of "Company"), or that the Company has now or at any time in the future may have against you, including claims relating to breach of contract, tort claims, wrongful discharge, discrimination and/or harassment claims, retaliation claims, claims for overtime, wages, leaves, paid time off, sick days, compensation, penalties or restitution, including but not limited to claims under the Fair Labor Standards Act ("FLSA"), Title VII of the Civil Rights Act of 1964 ("Title VII"), the Age Discrimination in Employment Act ("ADEA"), the Worker Adjustment and Retraining Notification Act ("WARN"), the Equal Pay Act ("EPA"), the Americans with Disabilities Act ("ADA"), the Family and Medical Leave Act ("FMLA"), and any other claim under any federal, state, or local statute, constitution, regulation, rule, ordinance, or common law, arising out of and/or directly or indirectly related to your application for employment with the Company, and/or your employment with the Company, and/or termination of your employment with the Company (collectively "Covered Claims"), are subject to arbitration pursuant to the terms of this Agreement and will be resolved by arbitration and NOT by a court or jury. THE PARTIES HEREBY FOREVER WAIVE AND GIVE UP THE RIGHT TO HAVE A JUDGE OR JURY DECIDE ANY COVERED CLAIMS. Either party to this Agreement may make application to a court for temporary or preliminary injunctive relief in aid of arbitration or for the

236 A.3d 944

244 N.J. 39

maintenance of the status quo pending arbitration, if the award to which the party may be entitled may be rendered ineffectual without such relief.

The following language appeared in bold font on the final page of the Agreement:

You understand that your acknowledgement of this Agreement is not required for the Agreement to be enforced. If you begin or continue working for the Company sixty (60) days after receipt of this Agreement, even without acknowledging this Agreement, this Agreement will be effective, and you will be deemed to have consented to, ratified and accepted this Agreement through your acceptance of and/or continued employment with the Company.

The May 5, 2016 e-mail stated that under the Agreement, "both colleagues and Pfizer agree that arbitration...