NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1981-24
MILAGROS CINTRON,
Plaintiff-Respondent,
v.
BRINK'S INCORPORATED, LISA JOHNSON, and LISA DUFFY,
Defendants-Appellants,
and
CHRIS GHIRTSOS,
Defendant. __________________________
Argued September 16, 2025 – Decided January 26, 2026
Before Judges Currier, Smith, and Jablonski.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7421-24.
Michael J. Nacchio argued the cause for appellants (Ogletree, Deakins, Nash, Smoak & Stewart, PC, attorneys; Thomas J. Rattay, Jocelyn A. Merced and Erin N. Donegan, on the briefs).
Thomas A. McKinney argued the cause for respondent (Castronovo & McKinney, LLC, attorneys; Thomas A. McKinney, of counsel and on the brief; Anais V. Paccione, on the brief).
PER CURIAM
Defendant Brink's Incorporated (Brink's) appeals the trial court's order
granting plaintiff Milagros Cintron's motion for reconsideration and denying
Brink's motion to compel arbitration. After reviewing the record and
applicable legal principles, we reverse the trial court's decision to void the
Mutual Arbitration Agreement (the Agreement). Furthermore, because
plaintiff's argument regarding whether her claim is barred from arbitration
under the Ending Forced Arbitration of Sexual Assault and Harassment Act of
2021, 9 U.S.C. §§ 401-02 (EFAA) raises an issue of significant public interest,
we remand for the trial court to determine the applicability of that statute to
plaintiff's claims.
I.
We glean the following facts from plaintiff's complaint and the record
before us. Plaintiff began her employment with Brink's in 1997 as a currency
A-1981-24 2 processor in its Newark office. In May 2022, plaintiff transferred to Brink's
Maywood location as a balance processor. Plaintiff is an at-will employee.
A.
Twenty-two years after she began her employment, plaintiff was
presented with, and electronically signed, the Agreement with Brink's. The
Agreement was updated in March 2022. Plaintiff electronically signed that
document as well.
The Agreement provided, in pertinent part:
Both you and Brink's agree that you and Brink's must submit all legally cognizable, employment-related claims between you and Brink's to binding arbitration, except as provided [later in the document] . . . . You and Brink's voluntarily waive all rights to trial in court before a judge or jury on all claims covered by this Agreement.
Under the Agreement, claims subject to arbitration were broad in scope
and specifically included "claims involving harassment, discrimination, or
retaliation of [any kind]." The only exceptions were claims for state insurance
benefits, claims for which the Agreement would be invalid under federal or
state law not preempted by federal law, and actions to enforce the Agreement,
compel arbitration, or enforce or vacate an arbitrator's award.
A-1981-24 3 The Agreement included a specific "opt-out" provision. If plaintiff
wished to be excused from arbitration , she was required to follow separate
instructions under a section labeled "OPTION TO OPT[-]OUT OF
AGREEMENT." Under that provision, plaintiff had thirty days from the
execution of the Agreement to "request an opt-out form from the Brink's
recruiter you dealt with in connection with [her] offer of employment or from
the Human Resources Director or Human Resources [HR] Manager assigned to
your Branch or Department."
If an employee did not request the form from the HR department or
failed to complete it and mail it back to the specified address,, the employee
was bound to the terms of the Agreement.
B.
In December 2022, plaintiff became aware her coworkers and
supervisors made derogatory comments about her in a group chat from which
she was excluded. Participants in this group chat included defendant Chris
Ghirtsos, plaintiff's direct manager, her route supervisor, James Reilly, and
crew chief Tiffany Phillips. Only Ghirtsos is named in the present suit as a
defendant. Plaintiff, who describes herself as a "Puerto Rican woman with
dark skin," asserted that messages exchanged within the group chat referred to
A-1981-24 4 her and other coworkers, including African American and female employees,
using atrocious, explicit, derogatory racist and gender-based sexist language
including "n[***]er", "c[**]t", "monkey" and "b[***]h." Plaintiff specifically
alleges that Ghirtsos referred to her using explicitly sexist terminology.
A participant in the group chat reported the offensive messages.
Plaintiff contends defendants Lisa Duffy, Brink's HR Manager, and Lisa
Johnson, Brink's HR Director, failed to address the reports or to discipline any
involved personnel.
Plaintiff filed a two-count complaint alleging Brink's subjected her to a
hostile work environment based on race and gender and violated the New
Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -50. In the first count,
plaintiff asserts that her coworkers' gender- and race-specific messages created
a hostile work environment which altered the conditions of her employment
and caused her emotional distress and other damages. The second count
alleges that Ghirtsos, Duffy, and Johnson aided and abetted Brink's to create
the hostile workplace atmosphere in violation of N.J.S.A. 10:5-12(e).
C.
Brink's moved to dismiss the complaint and to compel arbitration.
Plaintiff did not oppose the motion. Consequently, the trial court dismissed
A-1981-24 5 the complaint without prejudice and compelled plaintiff to arbitrate her claim.
In response, plaintiff moved for reconsideration, arguing she inadvertently
failed to oppose the motion.
The trial court reconsidered its decision and denied Brink's' motion to
dismiss and to compel arbitration. The court held the Agreement was
unenforceable under contract law principles because it lacked consideration.
The court also concluded plaintiff was unaware she was signing an arbitration
agreement and did not know of her option to opt-out of her arbitration
obligation.
Brink's appealed.
Before us, Brink's contends the trial court's decision violates established
precedent favoring enforcement of arbitration agreements and claims the
Agreement was valid and enforceable. Conversely, plaintiff asserts the trial
court properly reconsidered and vacated the previous order to compel
arbitration and correctly found the Agreement unenforceable because it lacked
mutual assent. Additionally, and for the first time on appeal, plaintiff
alternatively argues that notwithstanding the validity of the Agreement,
plaintiff's claims are required to be resolved in court, rather than in arbitration,
under the EFAA.
A-1981-24 6 II.
In assessing a trial judge's decision to grant a motion for reconsideration,
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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-1981-24
MILAGROS CINTRON,
Plaintiff-Respondent,
v.
BRINK'S INCORPORATED, LISA JOHNSON, and LISA DUFFY,
Defendants-Appellants,
and
CHRIS GHIRTSOS,
Defendant. __________________________
Argued September 16, 2025 – Decided January 26, 2026
Before Judges Currier, Smith, and Jablonski.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7421-24.
Michael J. Nacchio argued the cause for appellants (Ogletree, Deakins, Nash, Smoak & Stewart, PC, attorneys; Thomas J. Rattay, Jocelyn A. Merced and Erin N. Donegan, on the briefs).
Thomas A. McKinney argued the cause for respondent (Castronovo & McKinney, LLC, attorneys; Thomas A. McKinney, of counsel and on the brief; Anais V. Paccione, on the brief).
PER CURIAM
Defendant Brink's Incorporated (Brink's) appeals the trial court's order
granting plaintiff Milagros Cintron's motion for reconsideration and denying
Brink's motion to compel arbitration. After reviewing the record and
applicable legal principles, we reverse the trial court's decision to void the
Mutual Arbitration Agreement (the Agreement). Furthermore, because
plaintiff's argument regarding whether her claim is barred from arbitration
under the Ending Forced Arbitration of Sexual Assault and Harassment Act of
2021, 9 U.S.C. §§ 401-02 (EFAA) raises an issue of significant public interest,
we remand for the trial court to determine the applicability of that statute to
plaintiff's claims.
I.
We glean the following facts from plaintiff's complaint and the record
before us. Plaintiff began her employment with Brink's in 1997 as a currency
A-1981-24 2 processor in its Newark office. In May 2022, plaintiff transferred to Brink's
Maywood location as a balance processor. Plaintiff is an at-will employee.
A.
Twenty-two years after she began her employment, plaintiff was
presented with, and electronically signed, the Agreement with Brink's. The
Agreement was updated in March 2022. Plaintiff electronically signed that
document as well.
The Agreement provided, in pertinent part:
Both you and Brink's agree that you and Brink's must submit all legally cognizable, employment-related claims between you and Brink's to binding arbitration, except as provided [later in the document] . . . . You and Brink's voluntarily waive all rights to trial in court before a judge or jury on all claims covered by this Agreement.
Under the Agreement, claims subject to arbitration were broad in scope
and specifically included "claims involving harassment, discrimination, or
retaliation of [any kind]." The only exceptions were claims for state insurance
benefits, claims for which the Agreement would be invalid under federal or
state law not preempted by federal law, and actions to enforce the Agreement,
compel arbitration, or enforce or vacate an arbitrator's award.
A-1981-24 3 The Agreement included a specific "opt-out" provision. If plaintiff
wished to be excused from arbitration , she was required to follow separate
instructions under a section labeled "OPTION TO OPT[-]OUT OF
AGREEMENT." Under that provision, plaintiff had thirty days from the
execution of the Agreement to "request an opt-out form from the Brink's
recruiter you dealt with in connection with [her] offer of employment or from
the Human Resources Director or Human Resources [HR] Manager assigned to
your Branch or Department."
If an employee did not request the form from the HR department or
failed to complete it and mail it back to the specified address,, the employee
was bound to the terms of the Agreement.
B.
In December 2022, plaintiff became aware her coworkers and
supervisors made derogatory comments about her in a group chat from which
she was excluded. Participants in this group chat included defendant Chris
Ghirtsos, plaintiff's direct manager, her route supervisor, James Reilly, and
crew chief Tiffany Phillips. Only Ghirtsos is named in the present suit as a
defendant. Plaintiff, who describes herself as a "Puerto Rican woman with
dark skin," asserted that messages exchanged within the group chat referred to
A-1981-24 4 her and other coworkers, including African American and female employees,
using atrocious, explicit, derogatory racist and gender-based sexist language
including "n[***]er", "c[**]t", "monkey" and "b[***]h." Plaintiff specifically
alleges that Ghirtsos referred to her using explicitly sexist terminology.
A participant in the group chat reported the offensive messages.
Plaintiff contends defendants Lisa Duffy, Brink's HR Manager, and Lisa
Johnson, Brink's HR Director, failed to address the reports or to discipline any
involved personnel.
Plaintiff filed a two-count complaint alleging Brink's subjected her to a
hostile work environment based on race and gender and violated the New
Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -50. In the first count,
plaintiff asserts that her coworkers' gender- and race-specific messages created
a hostile work environment which altered the conditions of her employment
and caused her emotional distress and other damages. The second count
alleges that Ghirtsos, Duffy, and Johnson aided and abetted Brink's to create
the hostile workplace atmosphere in violation of N.J.S.A. 10:5-12(e).
C.
Brink's moved to dismiss the complaint and to compel arbitration.
Plaintiff did not oppose the motion. Consequently, the trial court dismissed
A-1981-24 5 the complaint without prejudice and compelled plaintiff to arbitrate her claim.
In response, plaintiff moved for reconsideration, arguing she inadvertently
failed to oppose the motion.
The trial court reconsidered its decision and denied Brink's' motion to
dismiss and to compel arbitration. The court held the Agreement was
unenforceable under contract law principles because it lacked consideration.
The court also concluded plaintiff was unaware she was signing an arbitration
agreement and did not know of her option to opt-out of her arbitration
obligation.
Brink's appealed.
Before us, Brink's contends the trial court's decision violates established
precedent favoring enforcement of arbitration agreements and claims the
Agreement was valid and enforceable. Conversely, plaintiff asserts the trial
court properly reconsidered and vacated the previous order to compel
arbitration and correctly found the Agreement unenforceable because it lacked
mutual assent. Additionally, and for the first time on appeal, plaintiff
alternatively argues that notwithstanding the validity of the Agreement,
plaintiff's claims are required to be resolved in court, rather than in arbitration,
under the EFAA.
A-1981-24 6 II.
In assessing a trial judge's decision to grant a motion for reconsideration,
we consider whether the trial court misapplied its discretion. See JPC Merger
Sub LLC v. Tricon Enters., Inc., 474 N.J. Super. 145, 160 (App. Div. 2022).
"Where the order sought to be reconsidered is interlocutory, . . . R[ule] 4:42-2
governs the motion." Ibid. Under Rule 4:42-2, "interlocutory orders 'shall be
subject to revision at any time before the entry of final judgment in the sound
discretion of the court in the interest of justice.'" Lawson v. Dewar, 468 N.J.
Super. 128, 134 (App. Div. 2021) (quoting R. 4:42-2). We review questions of
law de novo and "accord no 'special deference' to the 'trial court's
interpretation of the law and the legal consequences that flow from established
facts.'" Jeter v. Sam's Club, 250 N.J. 240, 251 (2022) (quoting Cherokee LCP
Land, LLC v. City of Linden Plan. Bd., 234 N.J. 403, 414-15 (2018)).
In this case, the trial court granted plaintiff's reconsideration motion for
procedural reasons and denied Brink's' motion to dismiss on substantive
grounds. Because the court's decision was based on strict contract principles,
specifically that plaintiff did not receive sufficient consideration when she
signed the Agreement and the Agreement was not the product of mutual assent,
a legal question is before us which is subject to our review de novo. After
A-1981-24 7 reviewing the arguments and the controlling legal principles, we conclude the
trial court was mistaken when it decided the Agreement was void.
As she did before the trial court, plaintiff argues before us that she had
no recollection of signing the Agreement with Brink's and was never informed
by Brink's' personnel about either the Agreement's existence or of any of its
implications. Plaintiff asserts she was not required to sign the Agreement as a
condition of her employment and the Agreement was not explained to her by
either management or HR. Plaintiff also stated that completion of assigned HR
tasks, typically administered through an electronic platform, was always
characterized as mandatory, with failure to comply resulting in potential
disciplinary action. According to plaintiff, the cumulative effect of these
factors renders the Agreement procedurally unconscionable. We disagree.
Arbitration agreements are subject to customary contract law principles.
Atalese v. U.S. Legal Services Group, L.P., 219 N.J. 430, 442 (2014). "A
valid and enforceable agreement requires (1) consideration; (2) a meeting of
the minds based on a common understanding of the contract terms; and (3)
unambiguous assent." Lahoud v. Anthony & Sylvan Corp., 481 N.J. Super. 29,
41 (App. Div. 2025) (citing Atalese, 219 N.J. at 442-43). Consequently, to be
A-1981-24 8 enforceable, the terms of an arbitration agreement must be clear and any legal
rights being waived must be identified. Atalese, 219 N.J. at 442-43.
"No particular form of words is necessary to accomplish a clear and
unambiguous waiver of rights." Id. at 444. If "at least some general and
sufficiently broad way" the language of the clause conveys arbitration is a
waiver of the right to bring suit in a judicial forum, the clause will be enforced.
Id. at 447. No "magical language" is required. Morgan v. Sanford Brown
Inst., 225 N.J. 289, 309 (2016). On de novo review and guided by these
principles, we conclude the Agreement is both valid and enforceable.
First, the Agreement is supported by adequate consideration. It is
axiomatic that promises will be enforced if those representations are supported
by consideration. Martindale v. Sandvik, Inc., 173 N.J. 76, 87 (2002). "The
essential requirement of consideration is a bargained-for exchange of promises
or performance that may consist of an act, a forbearance, or the creation,
modification, or destruction of a legal relation." Ibid. (quoting Shebar v.
Sanyo Bus. Sys. Corp., 111 N.J. 276, 289 (1988)). Courts have routinely and
consistently held the "creation of an employment relationship, which is
achieved when the employer agrees to consider and/or agrees to hire the
applicant for employment, is sufficient consideration to uphold an arbitration
A-1981-24 9 agreement contained in an employment application." Id. at 88. Plaintiff's
continued employment with Brink's after she signed the Agreement represents
sufficient consideration to bind the parties contractually. Ibid. ("[I]n New
Jersey, continued employment has been found to constitute sufficient
consideration to support certain employment-related agreements."). Here,
although plaintiff was already employed, her continued employment as an at-
will employee, was continued by Brink's. The parties' mutual promises to each
other represents valid consideration.
Second, the acceptance of the Agreement represents a meeting of the
minds. It is undisputed plaintiff signed and returned the Agreement. Plaintiff
argues that she did not possess "informed consent" before she executed the
Agreement. This argument is unavailing.
In the employment setting, an arbitration provision "must reflect that an
employee has agreed clearly and unambiguously to arbitrate the disputed
claim. Generally, we determine a written agreement's validity by considering
the intentions of the parties as reflected in the four corners of the written
instrument." Leodori v. CIGNA Corp., 175 N.J. 293, 302 (2003) "[T]o enforce
a waiver-of-rights provision[,] . . . the Court requires some concrete
manifestation of the employee's intent as reflected in the text of the agreement
A-1981-24 10 itself." Id. at 300 (quoting Garfinkel v. Morristown Obstetrics & Gynecology
Assocs., 168 N.J. 124, 135 (2001)). "Although not strictly required, a party's
signature to an agreement is the customary and perhaps surest indication of
assent." Id. at 306-07. Generally "'one who does not choose to read a contract
before signing it cannot later relieve [themselves] of [their] burdens.' The
onus [i]s on [the] plaintiff to obtain a copy of the contract in a timely manner
to ascertain what rights [they] waived by beginning the arbitration process."
Skuse v. Pfizer, Inc., 244 N.J. 30, 54 (2020) (quoting Riverside Chiropractic
Grp. v. Mercury Ins. Co., 404 N.J. Super. 228, 238 (App. Div. 2008)).
Third, unmistakable assent is demonstrated by "some concrete
manifestation of the employee's intent as reflected in the text of the agreement
itself." Garfinkel, 168 N.J. at 135. Plaintiff advances the argument that the
Agreement is void "in several respects" because of language that is "especially
confusing to a layperson." We disagree.
The language used, with either its bold-faced or capitalized emphasis, is
clear and direct. Declarative sentences free from legal jargon and complicated
phrasing outline the rights and obligations of each party concisely and
transparently. Likewise, the instructions for opting out of the agreement are
presented clearly in a separate paragraph, with specific steps that minimize and
A-1981-24 11 eliminate any confusion regarding how to exercise this option. In sum, the
Agreement is both valid and enforceable.
However, this conclusion does not end our analysis.
III.
Despite the validity of the Agreement, plaintiff's claims may still be able
to proceed in a court rather than in arbitration under the EFAA. Plaintiff raises
this issue for the first time in opposition to defendant's appeal.
The EFAA amends the Federal Arbitration Act, 9 U.S.C.A. §§ 1-16 and,
in relevant part, states:
[A]t the election of the person alleging conduct constituting a sexual harassment dispute . . ., no predispute arbitration agreement . . . shall be valid or enforceable with respect to a case which is filed under Federal . . . or State law and relates to the sexual assault dispute . . . .
[9 U.S.C. § 402(a).]
Plaintiff argues that since this matter centers on sexual and racial
harassment claims, her "entire case is subject to the EFAA." Defendants
maintain that since plaintiff did not raise the EFAA issue before the trial court,
she cannot raise it for the first time on appeal. Brink's also advances a
substantively nuanced argument that plaintiff's controversy is not precluded
A-1981-24 12 from arbitration under the EFAA because her case involves claims of sexual
discrimination rather than sexual assault or harassment.
Generally, we will not "consider issues, even constitutional ones, which
were not raised [before the trial court]." State v. Galicia, 210 N.J. 364, 383
(2012). "For sound jurisprudential reasons, with few exceptions, '[we] decline
to consider questions or issues not properly presented [at their inception] when
an opportunity for such a presentation is available.'" State v. Witt, 223 N.J.
409, 419 (2015) (quoting State v. Robinson, 200 N.J. 1, 20 (2009)) (internal
quotation marks omitted). This rule, however, is not absolute and we will
consider unpreserved issues if those questions "concern matters of great public
interest." Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting
Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div.
1959)).
Since plaintiff did not invoke the protection of the EFAA before the trial
court, we are unable to address it in substantial detail here since there is no
record for us to review. However, this controversy reflects a matter of great
public significance meriting our, albeit limited, review.
Recently, we observed:
The EFAA represents the "first major amendment in the history of the FAA," a law passed nearly a century
A-1981-24 13 ago to encourage courts to enforce arbitration agreements and their terms. Olivieri v. Stifel, th Nicolaus & Co., Inc., 112 F.4 74, 84 (2d Cir. 2024) (citing David Horton, The Limits of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, 132 Yale L.J. Forum 1, 1 (2022)). The EFAA, whose passage is widely attributed to the #MeToo movement, reflects Congress's concern that "compelled arbitration of sexual harassment claims can perpetuate unacceptable behavior and minimize its consequences by diverting such claims from public court proceedings into a private forum." Liu v. Miniso Depot CA, Inc., 105 Cal. App. 5 th 791, 326 Cal. Rptr. 3d, 286, 288 (Cal. Ct. App. 2024).
[McDermott v. Guaranteed Rate, Inc., ___ N.J. Super. ___, ___ (App. Div. 2025) (slip op. at 29).]
We deem this issue to be of such "great public interest" to warrant
deviation from our general principle of not considering an issue for the first
time on appeal. Here, the gender-specific epithets directed at plaintiff may
serve as the predicate for her sexual harassment claim. Therefore, the EFAA,
by its strict terms, might preempt defendant's contention that the Agreement
requires arbitration of this claim. However, because plaintiff did not seek to
invoke the protections of the EFAA during the motion hearing, the trial court
was not given the opportunity to interpret or to evaluate the application of the
EFAA to plaintiff's complaint. Therefore, we remand for the court to do so.
A-1981-24 14 Reversed and remanded for the trial court to consider the applicability of
the EFAA in accordance with this opinion. We do not retain jurisdiction.
A-1981-24 15