NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0978-24
AGNIESZKA DRUPKA,
Plaintiff-Respondent,
v.
EASTERN INTERNATIONAL COLLEGE and BASHIR MOHSEN,
Defendants-Appellants. __________________________
Argued June 16, 2025 – Decided June 26, 2025
Before Judges Sabatino, Perez Friscia and Bergman.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-0475-23.
Steven I. Adler argued the cause for appellants (Mandelbaum Barrett, PC, attorneys; Steven I. Adler and Michael C. Polychronis, of counsel and on the briefs).
Steven D. Cahn argued the cause for respondent (Cahn & Parra, PA, attorneys; Steven D. Cahn, on the brief).
PER CURIAM Defendants Eastern International College ("Eastern") and Bashir Mohsen
appeal from the November 8, 2024 Law Division order denying their motion to
compel arbitration of plaintiff Agnieszka Drupka's employment claims. Having
reviewed the record, parties' arguments, and applicable legal principles, we
affirm.
I.
Eastern operated a private educational institution of higher learning with
campuses in Belleville and Jersey City. Mohsen was Eastern's chief executive
officer. In October 2014, Eastern initially hired Drupka as an accountant, and
in 2017, Eastern promoted her from chief operating officer to acting campus
director.
After working at Eastern for over seven years, Drupka resigned in April
2022 because Mohsen allegedly engaged in a course of sexual harassment and
discrimination against her. In January 2023, Drupka filed a complaint alleging
defendants violated: the Law Against Discrimination (LAD), N.J.S.A. 10:5-1
to -50; the New Jersey Conscientious Employee Protection Act (CEPA),
N.J.S.A. 34:19-1 to -14; and Pierce.1 She specifically averred defendants:
1 Pierce v. Ortho Pharm. Corp., 84 N.J. 58 (1980). A-0978-24 2 "created a hostile work environment directed at" her as a woman; retaliated
against her after complaining of unlawful discriminatory conduct; and
constructively terminated her employment.
On May 8, 2023 defendants moved before the trial court to compel
arbitration of Drupka's employment claims. In support of their motion,
defendants submitted an employment agreement, which Drupka purportedly
entered, witnessed, and signed. The employment agreement (the first
agreement) contains arbitration provisions and is titled "AT-WILL
EMPLOYMENT AGREEMENT WAIVER OF RIGHT TO LITIGATE AND
ALL DISPUTES GO TO ARBITRATION FOR SALARIED EMPLOYEE
(NOT HOURLY)." The first agreement has handwritten in Drupka's position as
campus director and "Acting President" scratched out. The first eight pages are
double spaced. Drupka's initials appear differently on each page, and there are
two pages numbered nine. The first page nine is blank, and the other is the
document's last page, which is single-spaced with Drupka's signature, and was
witnessed and dated March 7, 2019. Further, page eight ends in the middle of a
sentence. In support of defendants' motion to compel arbitration, Mohsen
certified that Drupka signed the first agreement, which "contain[ed] a very broad
A-0978-24 3 arbitration clause" that "cover[ed] all claims arising out of or related to her
employment, including employment claims."
On May 15, in opposition to the motion to compel arbitration, Drupka
certified she did not sign the first agreement. Drupka represented that the first
agreement was fraudulently altered, and "[t]he signature page at the end of th[e]
document c[ame] from a proper employment agreement signed in March of
2019." She certified that "on the last day [she] was physically present for work
at Eastern," Mohsen directed her to sign an agreement that looked similar to the
first agreement. Drupka declined, believing "he was attempting to get [her] to
sign so he could fire [her], and [she] would not be able to sue."
In a second certification dated August 21, Mohsen again certified Drupka
signed the first agreement. In support of this contention, Mohsen alleged the
arbitration "clause [wa]s contained in agreements employees signed both before
and after" Drupka's employment. His certification failed to address why other
agreements submitted as evidence varied from the first agreement. Mohsen's
certification referenced George Caceres, Esq.'s, Eastern's former chief equal
employment opportunity officer and legal liaison, certification. Caceres
certified that: "there was an arbitration clause in each and every one of"
Eastern's employment agreements; Drupka had "signed an [a]greement . . . in
A-0978-24 4 [his] presence"; and he "would only sign the agreement if it was signed and
initialed in front of [him]."
On August 25, Caceres clarified in a second certification that after
reviewing the alleged first agreement, he: noticed "there [we]re two pages
numbered . . . nine"; was "not at all familiar with the initials on the bottom left
of pages one to eight"; noted "there [we]re inconsistencies in the spacing
between the sentences on the document"; observed "that from page one to eight,
there [wa]s one setting of the spacing . . . different from the spacing of the
sentencing on the signature page nine"; and saw "there [wa]s a missing section."
While he could authenticate his and plaintiff's signature on the last page, Caceres
stated he "would not [have] allow[ed] any person to initial or sign the
agreement" with the missing section, blank page, and two page nines.
On September 20, after argument on the motion, the court determined a
plenary hearing was necessary to resolve authenticity questions surrounding the
first agreement and whether the arbitration clause was enforceable. Thereafter,
defendants moved to compel Drupka's deposition, limited to whether there was
an enforceable arbitration agreement, which the court granted.
On November 22, 2023, defendants' counsel alerted Drupka's counsel that
another signed employment agreement was located. The newly-discovered
A-0978-24 5 employment agreement (the second agreement) also includes arbitration
provisions and is titled "AT-WILL EMPLOYMENT AGREEMENT."
Defendants discovered the second agreement "within a 'zip file'" attached to an
email Drupka had sent on November 18, 2019. The second agreement: is nine
pages; has similar line spacing throughout; and appears to have the same exact
last page as the first agreement. Notably, the arbitration section is titled
"ARBITRATION IS MANDATORY" and is the only section heading title in all
caps, as the other section headings are underlined and bolded. Also, paragraph
nine of the second agreement's arbitration section is the only paragraph in the
second agreement without justified margins.
At her deposition, Drupka testified that she only signed two agreements
during her employment with Eastern. She remembered signing "documents" in
October 2014 and an employment agreement later in March 2019, which
contained an arbitration clause but not the arbitration language in the first or
second agreements she alleged defendants fraudulently altered. Drupka
specifically recalled her signed 2019 employment agreement's content because
she had "a week prior to . . . signing" to review it. Drupka maintained she had
"read it[,] and it was very clear to [her] that . . . just a minor issue . . . would be
delegated to arbitration," and she was not "waiving all [her] rights in terms of
A-0978-24 6 not being able to file the lawsuit in case of discrimination." Further, she testified
that near the time she "went out on a second [disability] leave on April 25," she
saw a copy of the first agreement Mohsen was wrongly alleging she had signed.
Specifically, Drupka stated she "saw it on the last day, but . . . around two weeks
prior [to] that . . . Mohsen was calling [her] . . . and telling [her] that [she] ha[d]
to sign an employment agreement." Drupka recalled telling Mohsen she was
"not going to sign [an] employment agreement because [she] already signed the
employment agreement." She further testified that, at the time, Mohsen "said
this [wa]s a new one with the new enhanced arbitration clause."
Drupka testified that after Mohsen tried to force her to sign a different
agreement, she filed "a complaint . . . with the chief of staff Dr. Southard."2
Drupka allegedly told Dr. Southard that Mohsen was chasing her "down and
trying to [have her] sign a new employment agreement" because he was "trying
to take away rights from [her]." She also alleged Mohsen had previously
threatened her. Drupka relayed that Mohsen stated if she ever tried "to do
something or go after him, . . . he w[ould] create evidence, would destroy" her,
and would "send [her] to jail." Drupka also addressed the second agreement,
alleging: defendants copied and pasted the second agreement's arbitration
2 Dr. Southard's first name is not in the record. A-0978-24 7 paragraph into the document; she remembered her employment agreement did
not waive all claims from court; she had no recollection of the arbitration
language; and her initials were not accurate. She testified both purported
agreements were altered, as evidenced by Eastern's failure to produce the
original document. Drupka noted that some Eastern employees had included
modified arbitration paragraphs in their employment agreements because
Eastern had changed the arbitration provision after losing a lawsuit. Drupka
explained that in 2019, an Eastern employee filed a lawsuit that started "the
whole arbitration clause issue," because the prior arbitration language "was
deemed to be invalid."
At the November 2024 plenary hearing, the court heard testimony from:
defendants' counsel, Michel Polychronis, Esq.; Mohsen; and Drupka.
Polychronis testified to receiving a November 18, 2019 email that had an
attached "zip folder with documents." Polychronis opened the folder containing
employment agreements. He reviewed and compared the second agreement's
arbitration provisions Drupka allegedly signed to other employees' agreements
with arbitration provisions. He stated, "[T]hey were very similar." Polychronis
advised he was given access to Drupka's emails, spoke with Mohsen, and found
A-0978-24 8 the zip folder in one of Drupka's sent emails. Polychronis testified that he "d[id
not] know" if "someone else modified any of the documents."
Drupka testified the second agreement contained her signature on page
nine, but she was never given that agreement to sign. She asserted that for about
two weeks prior to her last day of work, Mohsen was "harassing" her to "sign a
new employment agreement." She refused to sign the agreement after reviewing
it, and she maintained the agreement he showed her was similar to the first
agreement. Drupka testified to entering an employment agreement but was
adamant she did not sign the second agreement with what she maintained were
altered arbitration provisions. Drupka was steadfast that: she never entered the
first or second agreement; the signed page nine attached to defendants' offered
agreements was from the actual agreement she had entered; and the obvious
discrepancies in defendants' proffered agreements showed she entered neither
agreement.
Mohsen testified to finding the first agreement in Drupka's office and that
Drupka entered into the agreement because he recalled that she incorrectly listed
her employment title as acting president. Regarding the second agreement, he
testified that Drupka "issued the [employment] contract." He conceded on
A-0978-24 9 cross-examination that Caceres was responsible for drafting the employment
agreements. Mohsen denied requesting Drupka sign a different agreement.
After the hearing, the court issued an order accompanied by an oral
opinion denying defendants' motion to compel. The court found there was "a
big question mark" whether the parties entered an employment agreement with
a binding arbitration provision. After observing the witnesses and considering
the evidence, the court found defendants failed to produce an authentic
agreement warranting it to compel arbitration. The court observed that
defendants represented Drupka signed two different employment agreements. It
specifically found the first agreement appeared "cobbled together" and
"incomplete." Regarding the second agreement, which defendants produced as
a PDF, the court noted defendants provided no forensic evidence establishing
the purported agreement, as presented, was unaltered. Ultimately, the court
found there were "too many questions revolv[ing] . . . [around] the[] two
agreements for [it] . . . to say . . . there[ wa]s a binding agreement" between the
parties to arbitrate, and defendants failed to authenticate either agreement.
On appeal, defendants contend reversal is warranted because the court:
(1) "was required to compel arbitration because [Drupka] failed to set forth a
specific challenge to the operative agreement's arbitration provision"; (2) erred
A-0978-24 10 in failing to make sufficient factual findings "concerning the enforceability of
the operative agreement and the parties' agreement to arbitrate"; (3) erroneously
focused solely on the "incomplete agreement," the first agreement, while
ignoring vital testimony about an enforceable arbitration provision in the second
agreement; (4) erred in refusing to order arbitration because the court ignored
clear and conspicuous evidence that the second agreement contained an
enforceable arbitration clause.
II.
Orders compelling or denying arbitration are treated as final orders for
purposes of appeal. R. 2:2-3(3); GMAC v. Pittella, 205 N.J. 572, 582 n.6 (2011).
"Whether a contractual arbitration provision is enforceable is a question of law,
and we need not defer to the interpretative analysis of the trial . . . court[] unless
it is persuasive." Gayles v. Sky Zone Trampoline Park, 468 N.J. Super. 17, 23
(App. Div. 2021) (alteration in original) (quoting Kernahan v. Home Warranty
Adm'r of Fla., Inc., 236 N.J. 301, 316 (2019)). "When 'construing an arbitration
provision of a contract,' . . . a de novo standard of review is applicable. " Kopec
v. Moers, 470 N.J. Super. 133, 159 (App. Div. 2022) (quoting Atalese v. U.S.
Legal Servs. Grp., L.P., 219 N.J. 430, 446 (2014)).
A-0978-24 11 A trial court's factual findings are reviewed for an abuse of discretion. See
Cumberland Farms, Inc. v. N.J. Dep't of Env't. Prot., 447 N.J. Super. 423, 437-
38 (App. Div. 2016). "Factual findings premised upon evidence admitted in a
bench trial 'are binding on appeal when supported by adequate, substantial,
credible evidence.'" Potomac Ins. Co. of Ill. ex rel. OneBeacon Ins. v. Pa. Mfrs.'
Ass'n Ins. Co., 215 N.J. 409, 421 (2013) (quoting Cesare v. Cesare, 154 N.J.
394, 411-12 (1998)). Further, we will "'not disturb the factual findings and legal
conclusions of the trial [courts]' unless convinced that those findings and
conclusions were 'so manifestly unsupported by or inconsistent with the
competent, relevant and reasonably credible evidence as to offend the interests
of justice.'" Allstate Ins. Co. v. Northfield Med. Ctr., P.C., 228 N.J. 596, 619
(2017) (quoting Griepenburg v. Township of Ocean, 220 N.J. 239, 254 (2015)).
"When reviewing a motion to compel arbitration, courts apply a two-
pronged inquiry: (1) whether there is a valid and enforceable agreement to
arbitrate disputes; and (2) whether the dispute falls within the scope of the
agreement." Wollen v. Gulf Stream Restoration and Cleaning, LLC, 468 N.J.
Super. 483, 497 (App. Div. 2021) (citing Martindale v. Sandvik, Inc., 173 N.J.
76, 83, 92 (2002)). Generally, arbitration cannot be compelled unless the parties
freely entered into an agreement to arbitrate. See Marchak v. Claridge
A-0978-24 12 Commons, 134 N.J. 275, 281-82 (1993); see also Hirsch v. Amper Fin. Servs.,
LLC, 215 N.J. 174, 179 (2013). "[T]he party seeking to enforce . . . [an
agreement to arbitrate] . . . has the burden to prove, by a preponderance of the
evidence, that [the non-enforcing party] assented to it." Midland Funding LLC
v. Bordeaux, 447 N.J. Super. 330, 336 (App. Div. 2016).3
"The Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16, and the New Jersey
Arbitration Act (NJAA), N.J.S.A. 2A:23B-1 to -[36], represent a legislative
choice 'to keep arbitration agreements on "equal footing" with other contracts.'"
Ogunyemi v. Garden State Med. Ctr., 478 N.J. Super. 310, 315 (App. Div. 2024)
(quoting Roach v. BM Motoring, LLC, 228 N.J. 163, 174 (2017)). "Under both
statutes, 'arbitration is fundamentally a matter of contract,' and should be
regulated according to general contract principles." Ibid. (quoting Antonucci v.
Curvature Newco, Inc., 470 N.J. Super. 553, 561 (App. Div. 2022)).
Under the FAA, "a state may not 'subject an arbitration agreement to more
burdensome requirements than those governing the formation of other
contracts,'" or invalidate the agreement through "state-law 'defenses that apply
only to arbitration or that derive their meaning from the fact that an agreement
3 We have considered the parties' post-argument supplemental letter briefs regarding the burden of proof submitted upon our request. A-0978-24 13 to arbitrate is at issue.'" Skuse v. Pfizer, Inc., 244 N.J. 30, 47 (2020) (first
quoting Leodori v. Cigna Corp., 175 N.J. 293, 302 (2003); and then quoting
Atalese, 219 N.J. at 441). The FAA, however, does not bar all state-law defenses
and "specifically permits states to regulate contracts, including contracts
containing arbitration agreements under general contract principles." Ibid.
(quoting Martindale, 173 N.J. at 85).
The Ending Forced Arbitration of Sexual Assault and Sexual Harassment
Act of 2021 (EFA), Pub. L. No. 117-90, § 2(a), 136 Stat. 26, 26-27 (2022)
(codified at 9 U.S.C. §§ 401-402), which was enacted on March 3, 2022,
amended the FAA to prohibit the enforcement of arbitration agreements for
"conduct constituting a sexual harassment dispute." 9 U.S.C. § 402(a). The
EFA provides that "no predispute arbitration agreement or predispute joint-
action waiver shall be valid or enforceable with respect to a case which is filed
under . . . State law and relates to the sexual assault dispute or the sexual
harassment dispute." Ibid. A "predispute arbitration agreement" is defined as
"any agreement to arbitrate a dispute that had not yet arisen at the time of the
making of the agreement." 9 U.S.C. § 401(1). The amendment applies to any
claim arising or accruing after the EFA's enactment on March 3, 2022. Pub. L.
No. 117-90, § 3, 136 Stat. 28 (Mar. 3, 2022).
A-0978-24 14 The New Jersey Legislature codified its endorsement of arbitration
agreements in the NJAA. See Hojnowski v. Vans Skate Park, 187 N.J. 323, 342
(2006). The NJAA was enacted to "advance arbitration as a desirable alternative
to litigation and to clarify arbitration procedures in light of the developments of
the law in this area," Rappaport v. Pasternak, 260 N.J. 230, 247 (2025) (quoting
S. Judiciary Comm. Statement to S. 514 (Dec. 9, 2002)), and "is nearly identical
to the FAA," Flanzman v. Jenny Craig, Inc., 244 N.J. 119, 133 (2020) (quoting
Arafa v. Health Express Corp., 243 N.J. 147, 167 (2020)).
III.
Defendants contend the court erred in denying their motion to compel
arbitration and not making sufficient factual and credibility findings.
Defendants specifically argue: Drupka failed to sufficiently challenge the
validity of the second agreement; the evidence before the court weighed in favor
of finding that the parties entered an employment agreement with an enforceable
arbitration provision; and the court wrongly focused on the incomplete first
agreement in denying the motion to compel. We disagree.
After considering the evidence admitted at the plenary hearing, the court
found defendants failed to present a valid employment agreement with an
enforceable arbitration provision to warrant compelling arbitration. It
A-0978-24 15 specifically determined defendants did not sufficiently authenticate either
presented agreement. Undisputedly, defendants failed to produce an original
signed employment agreement and had presented two separate agreements that
the court was not "convinced" the parties legitimately entered.
Remarking that it already afforded the parties "a period of time to conduct
discovery" on the arbitration issues, the court found defendants proffered
agreements with "too many discrepancies." The court noted defendants had not
shown Drupka entered an agreement to arbitrate or "waived her right to a jury
trial." It found "too many questions . . . involving the[] two agreements for the
Court to say . . . there[ wa]s a binding agreement" to arbitrate. The court
highlighted that Polychronis only testified to having found the zip folder with
the second agreement after receiving "access to [Drupka's] laptop," "look[ing]
at the laptop," and "look[ing] at the sent folders." It reasoned defendants failed
to produce a "forensic examination of [Drupka's] computer," which would have
included a review of the "metadata to see who touched the" second agreement
and "who made changes to the document." The court also found it troubling that
Mohsen failed to sufficiently explain why he attested that the first agreement
was the operative agreement.
A-0978-24 16 We are mindful that we review de novo a court's construction of an
arbitration agreement and its "determinations, premised on the testimony of
witnesses and written evidence at a bench trial, in accordance with a deferential
standard." Nelson v. Elizabeth Bd. of Educ., 466 N.J. Super. 325, 336 (App.
Div. 2021) (quoting D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013)).
"When reviewing the trial court's exercise of discretion, we do not 'decide
whether the trial court took the wisest course, or even the better course, since to
do so would merely be to substitute our judgment for that of the lower court[,]'
which is an improper course of action." Burns v. Hoboken Rent Leveling &
Stabilizing Bd., 429 N.J. Super. 435, 443 (App. Div. 2013) (alteration in
original) (quoting Gillman v. Bally Mfg. Corp., 286 N.J. Super. 523, 528 (App.
Div. 1996)) (internal quotation marks omitted).
After reviewing the record and the court's decision, we discern no error in
its findings and ultimate conclusion that defendants failed to demonstrate
Drupka entered an employment agreement containing an enforceable arbitration
provision. We concur that defendants failed to meet their burden of
demonstrating a valid arbitration agreement by a preponderance of the evidence
because the agreements had significant discrepancies and inconsistencies.
Further, it is undisputed Mohsen represented both agreements were the operating
A-0978-24 17 agreement, casting doubt on the agreements' authenticity. The court's denial of
defendants' motion to compel is sufficiently supported by the evidence.
As an independent basis for affirmance, Drupka argues that the
application of the EFA bars "[e]nforcement of any arbitration agreement"
because she claims "unlawful harassment, discrimination, retaliation, and sexual
harassment, all based upon [her] gender or sex," which last occurred on April 8 ,
2022. See Bogey's Trucking & Paving, Inc. v. Indian Harbor Ins. Co., 395 N.J.
Super. 59, 64 n.3 (App. Div. 2007) (stating "an alternative argument for
affirmance . . . can be raised without cross-appeal"). The court did not reach the
EFA argument because defendants failed to present an authenticated arbitration
agreement. The court reasoned that it did not need to "interpret[] the language
within the agreement" and decide whether the EFA applied until it was "first
convinced that what[ had] been presented" was "in fact the operative
agreement." The court correctly determined that it was unnecessary to reach
Drupka's EFA arguments, and we therefore decline her invitation to address its
application on appeal.
To the extent that we have not addressed defendants' remaining
contentions, they lack sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(1)(E).
A-0978-24 18 Affirmed.
A-0978-24 19