NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-000171-21
C.G.,
Plaintiff-Appellant,
v.
APPLEBEES BAR AND GRILL INC., DOHERTY INC., and CAESER GONZALES,
Defendants-Respondents. __________________________
Argued March 9, 2022 – Decided July 20, 2022
Before Judges Messano, Accurso and Rose.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1157-21.
Mark Mulick argued the cause for appellant.
Dena B. Calo argued the cause for respondent Doherty Management Services, LLC (Saul Ewing Arnstein & Lehr LLP, attorneys; Dena B. Calo and Zachary M. Kimmel, on the brief).
PER CURIAM Plaintiff C.G. appeals pursuant to Rule 2:2-3(a) from an order dismissing
her hostile work environment complaint against Doherty Management
Services, LLC (improperly pleaded as "Applebees Bar and Grill Inc." and
"Doherty Inc.") and one of its employees, Caesar Gonzales, and compelling
arbitration.1 She raises only one issue — that the trial court erred in
converting Doherty's motion to dismiss, which she contends was brought
pursuant to Rule 4:6-2(e), to a motion to dismiss pursuant to Rule 4:6-2(a) and
refusing to treat it as a motion for summary judgment when the court was
presented and considered the operative arbitration agreement, a document
outside the pleadings. As plaintiff has not identified any factual dispute, and
concedes she signed the arbitration agreement submitted on the motion when
she applied for employment, we find the error, if there was one, harmless. We
accordingly affirm the order compelling arbitration.
The critical facts are easily summarized. Plaintiff began working for
Doherty shortly after she graduated from high school. She avers she is a
lesbian and was harassed nearly every day of the nearly seven years she
worked as an Applebees server by defendant Gonzales, her supervisor. She
alleges Gonzales regularly addressed her with homophobic slurs in the
1 Gonzales did not file an answer and has not participated in this appeal. A-000171-21 2 presence of management and staff, and once even physically assaulted her,
punching her in the nose in an incident witnessed by a manager and captured
on video. She claims Doherty was aware of the abuse and did nothing in
response to her complaints.
In opposition to Doherty's motion to dismiss her complaint and compel
arbitration, plaintiff objected to the admission of documents attached to a
certification by Doherty's counsel, including plaintiff's employment
application and signed arbitration agreement from 2014, as well as a 2018
arbitration agreement plaintiff allegedly acknowledged electronically.
Although contending the documents were hearsay and should not be admitted
on the motion, and that she had not acknowledged the 2018 agreement,
plaintiff conceded she signed the 2014 arbitration agreement on August 24,
2014, about five-and-a-half months after her eighteenth birthday, "as part of
[her] hiring process."
The arbitration agreement plaintiff signed is captioned "MANDATORY
ARBITRATION AGREEMENT" and states, among other things, that "any
claim, dispute, and/or controversy . . . arising from, related to, or having any
relationship or connection whatsoever with my seeking employment with,
employment by, or other association with Doherty Enterprises" would be
A-000171-21 3 subject to arbitration, including "any claims of employment discrimination,
harassment, and/or retaliation under Title VII and all other applicable federal,
state, or local statute, regulation, or common law doctrine." The agreement
further states any claim, dispute, or controversy that "would otherwise require
or allow resort to any court or other governmental dispute resolution forum"
would "be submitted to and determined exclusively by binding arbitration"
controlled by the Federal Arbitration Act and that "[a]ny dispute shall be
submitted for resolution to an impartial arbitrator selected under the Rules of
the American Arbitration Association." Above the signature line, the
agreement states, "I UNDERSTAND BY AGREEING TO THIS BINDING
ARBITRATION PROVISION, BOTH I AND DOHERTY ENTERPRISES
WAIVE OUR RIGHTS TO TRIAL BY JURY. I FURTHER UNDERSTAND
THAT THIS BINDING ARBITRATION AGREEMENT IS A CONTRACT."
Doherty filed a reply brief ignoring its violation of Rule 1:6-6 by
submitting a certification of counsel of facts not within her personal
knowledge, see Venner v. Allstate, 306 N.J. Super. 106, 111 (App. Div. 1997);
Pressler & Verniero, Current N.J. Court Rules, cmt. on R. 1:6-6 (2022) (noting
"[a]ffidavits by attorneys of facts not based on their personal knowledge but
related to them by and within the primary knowledge of their clients constitute
A-000171-21 4 objectionable hearsay"), and asserting the motion to dismiss was made
generally under Rule 4:6-2, not specifically under Rule 4:6-2(e), and should be
considered under Rule 4:6-2(a), lack of subject matter jurisdiction.
At oral argument on the motion, plaintiff's counsel asserted Doherty had
not mentioned Rule 4:6-2(a) in its moving papers or initial brief and had cited
Rule 4:6-2(e) and was thus estopped from changing its position in its reply
papers. Counsel argued the court was required to treat the motion as one for
summary judgment under Rule 4:6-2(e), and that summary judgment was
inappropriate because plaintiff disputed that she had acknowledged the 2018
arbitration agreement, contending a manager had done so without advising her
of the contents.
Counsel also argued plaintiff was barely eighteen when she signed the
2014 arbitration agreement, which he contended was "basically
incomprehensible to somebody of that age and education level." He argued
there was nothing in the agreement alerting plaintiff to "the limitations of
discovery in an arbitration matter," or that she was waiving any right to an
appeal, and nothing advising she should seek counsel before signing it. He
stressed plaintiff was uncounseled when she signed what was captioned a
"mandatory arbitration agreement" and was thus "a young woman . . . being
A-000171-21 5 taken advantage of by an employer to have her lose her right to a jury trial" to
"get the job."
Following oral argument, the judge issued a written decision setting out
the parties' positions and discussing the controlling cases regarding
enforceability of arbitration agreements, including Martindale v. Sandvik, Inc.,
173 N.J. 76, 92 (2002) (holding "[t]he insertion of an arbitration agreement in
an application for employment simply does not violate public policy"). Noting
the strong public policy favoring arbitration agreements as a means of dispute
resolution, see Flanzman v. Jenny Craig, Inc., 244 N.J. 119, 133 (2020), the
judge found plaintiff was of legal age when she signed the 2014 arbitration
agreement, which contained a clear waiver of the right to judicial proceedings
and jury trial, submitting it as part of her employment application, and thereby
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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-000171-21
C.G.,
Plaintiff-Appellant,
v.
APPLEBEES BAR AND GRILL INC., DOHERTY INC., and CAESER GONZALES,
Defendants-Respondents. __________________________
Argued March 9, 2022 – Decided July 20, 2022
Before Judges Messano, Accurso and Rose.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1157-21.
Mark Mulick argued the cause for appellant.
Dena B. Calo argued the cause for respondent Doherty Management Services, LLC (Saul Ewing Arnstein & Lehr LLP, attorneys; Dena B. Calo and Zachary M. Kimmel, on the brief).
PER CURIAM Plaintiff C.G. appeals pursuant to Rule 2:2-3(a) from an order dismissing
her hostile work environment complaint against Doherty Management
Services, LLC (improperly pleaded as "Applebees Bar and Grill Inc." and
"Doherty Inc.") and one of its employees, Caesar Gonzales, and compelling
arbitration.1 She raises only one issue — that the trial court erred in
converting Doherty's motion to dismiss, which she contends was brought
pursuant to Rule 4:6-2(e), to a motion to dismiss pursuant to Rule 4:6-2(a) and
refusing to treat it as a motion for summary judgment when the court was
presented and considered the operative arbitration agreement, a document
outside the pleadings. As plaintiff has not identified any factual dispute, and
concedes she signed the arbitration agreement submitted on the motion when
she applied for employment, we find the error, if there was one, harmless. We
accordingly affirm the order compelling arbitration.
The critical facts are easily summarized. Plaintiff began working for
Doherty shortly after she graduated from high school. She avers she is a
lesbian and was harassed nearly every day of the nearly seven years she
worked as an Applebees server by defendant Gonzales, her supervisor. She
alleges Gonzales regularly addressed her with homophobic slurs in the
1 Gonzales did not file an answer and has not participated in this appeal. A-000171-21 2 presence of management and staff, and once even physically assaulted her,
punching her in the nose in an incident witnessed by a manager and captured
on video. She claims Doherty was aware of the abuse and did nothing in
response to her complaints.
In opposition to Doherty's motion to dismiss her complaint and compel
arbitration, plaintiff objected to the admission of documents attached to a
certification by Doherty's counsel, including plaintiff's employment
application and signed arbitration agreement from 2014, as well as a 2018
arbitration agreement plaintiff allegedly acknowledged electronically.
Although contending the documents were hearsay and should not be admitted
on the motion, and that she had not acknowledged the 2018 agreement,
plaintiff conceded she signed the 2014 arbitration agreement on August 24,
2014, about five-and-a-half months after her eighteenth birthday, "as part of
[her] hiring process."
The arbitration agreement plaintiff signed is captioned "MANDATORY
ARBITRATION AGREEMENT" and states, among other things, that "any
claim, dispute, and/or controversy . . . arising from, related to, or having any
relationship or connection whatsoever with my seeking employment with,
employment by, or other association with Doherty Enterprises" would be
A-000171-21 3 subject to arbitration, including "any claims of employment discrimination,
harassment, and/or retaliation under Title VII and all other applicable federal,
state, or local statute, regulation, or common law doctrine." The agreement
further states any claim, dispute, or controversy that "would otherwise require
or allow resort to any court or other governmental dispute resolution forum"
would "be submitted to and determined exclusively by binding arbitration"
controlled by the Federal Arbitration Act and that "[a]ny dispute shall be
submitted for resolution to an impartial arbitrator selected under the Rules of
the American Arbitration Association." Above the signature line, the
agreement states, "I UNDERSTAND BY AGREEING TO THIS BINDING
ARBITRATION PROVISION, BOTH I AND DOHERTY ENTERPRISES
WAIVE OUR RIGHTS TO TRIAL BY JURY. I FURTHER UNDERSTAND
THAT THIS BINDING ARBITRATION AGREEMENT IS A CONTRACT."
Doherty filed a reply brief ignoring its violation of Rule 1:6-6 by
submitting a certification of counsel of facts not within her personal
knowledge, see Venner v. Allstate, 306 N.J. Super. 106, 111 (App. Div. 1997);
Pressler & Verniero, Current N.J. Court Rules, cmt. on R. 1:6-6 (2022) (noting
"[a]ffidavits by attorneys of facts not based on their personal knowledge but
related to them by and within the primary knowledge of their clients constitute
A-000171-21 4 objectionable hearsay"), and asserting the motion to dismiss was made
generally under Rule 4:6-2, not specifically under Rule 4:6-2(e), and should be
considered under Rule 4:6-2(a), lack of subject matter jurisdiction.
At oral argument on the motion, plaintiff's counsel asserted Doherty had
not mentioned Rule 4:6-2(a) in its moving papers or initial brief and had cited
Rule 4:6-2(e) and was thus estopped from changing its position in its reply
papers. Counsel argued the court was required to treat the motion as one for
summary judgment under Rule 4:6-2(e), and that summary judgment was
inappropriate because plaintiff disputed that she had acknowledged the 2018
arbitration agreement, contending a manager had done so without advising her
of the contents.
Counsel also argued plaintiff was barely eighteen when she signed the
2014 arbitration agreement, which he contended was "basically
incomprehensible to somebody of that age and education level." He argued
there was nothing in the agreement alerting plaintiff to "the limitations of
discovery in an arbitration matter," or that she was waiving any right to an
appeal, and nothing advising she should seek counsel before signing it. He
stressed plaintiff was uncounseled when she signed what was captioned a
"mandatory arbitration agreement" and was thus "a young woman . . . being
A-000171-21 5 taken advantage of by an employer to have her lose her right to a jury trial" to
"get the job."
Following oral argument, the judge issued a written decision setting out
the parties' positions and discussing the controlling cases regarding
enforceability of arbitration agreements, including Martindale v. Sandvik, Inc.,
173 N.J. 76, 92 (2002) (holding "[t]he insertion of an arbitration agreement in
an application for employment simply does not violate public policy"). Noting
the strong public policy favoring arbitration agreements as a means of dispute
resolution, see Flanzman v. Jenny Craig, Inc., 244 N.J. 119, 133 (2020), the
judge found plaintiff was of legal age when she signed the 2014 arbitration
agreement, which contained a clear waiver of the right to judicial proceedings
and jury trial, submitting it as part of her employment application, and thereby
demonstrating in the judge's words, "a mutual assent to contract," see Skuse v.
Pfizer, Inc., 244 N.J. 30, 48, 70 (2020). The judge rejected plaintiff's
procedural argument, relying on Hoffman v. Supplements Togo Mgmt., LLC,
419 N.J. Super. 596, 611 n.7 (App. Div. 2011), in which we struck a forum
selection clause obscured from ready review on the defendant's website but
noted "[t]he trial court appropriately considered, with respect to the motion to
dismiss for lack of subject matter jurisdiction under Rule 4:6-2(a), matters
A-000171-21 6 outside the pleadings, without converting that specific application to a
summary judgment motion. Cf. R. 4:6-2(e) (requiring such conversion only
for motions to dismiss for failure to state a claim under subsection (e) of
the Rule)."
As already noted, plaintiff has limited her argument on this appeal to the
court's alleged error in refusing to convert Doherty's motion to dismiss to one
for summary judgment under Rule 4:6-2(e). We need not delve into here
whether a Rule 4:6-2 motion to dismiss and compel arbitration is more
appropriately categorized as a Rule 4:6-2(a) motion to dismiss for lack of
subject matter jurisdiction, which permits consideration of matters outside the
pleadings without converting the motion to one for summary judgment, or a
Rule 4:6-2(e) motion for failure to state a claim, which requires converting the
motion to dismiss to one for summary judgment if matters beyond the
pleadings are presented. Arguments can be made for and against both, and we
suspect the facts will likely dictate which a court deems more appropriate in
any given case. See Pressler & Verniero, cmt. 4.1.1 on R. 4:6-2 (noting Rule
4:6-2(e) "motions are often complex and consequential in much the same
fashion as a motion for summary judgment").
A-000171-21 7 But regardless of whether the trial court would have considered
Doherty's motion under Rule 4:6-2(a), or instead under Rule 4:6-2(e), the
result would have been the same. Plaintiff conceded on the motion that she
signed the 2014 agreement after she had obtained her majority, and she has
sensibly abandoned any claims as to the agreement's unconscionability on
appeal, see 539 Absecon Boulevard, L.L.C. v. Shan Enters. Ltd. P'ship, 406
N.J. Super. 242, 272 n.10 (App. Div. 2009) (noting claims not briefed are
deemed abandoned); Pressler & Verniero, cmt. 5 on R. 2:6-2 ("It is, of course,
clear that an issue not briefed is deemed waived."). Because that
uncontroverted fact is dispositive of both the Rule 4:6-2 motion and this
appeal, making the dispute over whether plaintiff acknowledged the 2018
agreement inconsequential, we affirm the decision compelling arbitration.
Although we affirm the substance of the trial court's decision, we note it
erred in dismissing plaintiff's complaint with prejudice, instead of dismissing it
without prejudice, see Blair v. Scott Specialty Gases, 283 F.3d 595, 601-02 (3d
Cir. 2002) (order dismissing case without prejudice where all claims were
arbitrable was final and immediately appealable); R. 2:2-3(a) ("any order
either compelling arbitration, whether the action is dismissed or stayed, . . .
shall . . . be deemed a final judgment of the court for appeal purposes") , or
A-000171-21 8 staying it, see Antonucci v. Curvature Newco, Inc., 470 N.J. Super. 553, 557-
58 (App. Div. 2022) (remanding for entry of an amended order compelling
arbitration and staying the Law Division action until arbitration completed
pursuant to section 3 of the Federal Arbitration Act, 9 U.S.C. §§ 1-16). We
accordingly remand for the limited purpose of the issuance of a corrective
order compelling arbitration and dismissing the Law Division action without
prejudice or staying the case pending completion of the arbitration. We do not
retain jurisdiction.
Affirmed and remanded for entry of a corrective order.
A-000171-21 9