NOT FOR PUBLICATION WITHOUT THE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
DOCKET NO. A-0816-17T4
TOWN SPORTS INTERNATIONAL
HOLDINGS, INC. and MAJORIE
Submitted August 30, 2018 – Decided January 8, 2019
Before Judges Rothstadt and DeAlmeida.
On appeal from Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-0367-17.
Law Offices of David S. De Berry, and Matthew
Presseau (Miki Dixon & Presseau, PLLC) of the New
York bar, admitted pro hac vice, attorneys for appellant
(David S. De Berry and Matthew Presseau, on the
Gordon & Rees, LLP, attorneys for respondents
(Michael S. Hanan, on the brief).
The opinion of the court was delivered by
Plaintiff Monique Brownlee appeals from the September 11, 2017 order
of the Law Division dismissing her complaint and compelling her to submit her
employment discrimination claims to arbitration. We affirm.
The following facts are taken from the record. Defendant Town Sports
International Holdings, Inc. (TSI) operates fitness centers in New Jersey, and
elsewhere. Defendant Marjorie Ramos is the Vice President, Field Human
Resources, of TSI. Brownlee was hired by TSI in a management position on
January 28, 2011. TSI terminated her employment on August 19, 2016, for what
it described as poor performance, undocumented absences, and insubordination.
On January 24, 2017, plaintiff filed a complaint against TSI and Ramos
alleging racial discrimination and retaliation in violation of the New Jersey Law
Against Discrimination (LAD), N.J.S.A. 10:5-1 to –49, and the New Jersey
Family Leave Act, N.J.S.A. 34:11B-1 to –16, and intentional infliction of
emotional distress. In her complaint, she sought compensatory and punitive
damages, as well as attorneys' fees, and other relief.
On March 17, 2017, TSI and Ramos moved to dismiss the complaint and
compel arbitration of Brownlee's claims. The trial court scheduled a plenary
hearing to determine whether Brownlee had agreed to arbitrate all claims arising
from her employment. Brownlee and Melissa Williams, the Human Resources
Director of TSI, testified at the hearing.
On September 11, 2017, the trial court granted defendants' motion. A
written statement of reasons accompanied the court's order. Having heard the
testimony of the witnesses, and assessed their credibility, the court found that
TSI sent Brownlee a written offer of employment on January 28, 2011. The
letter did not state that Brownlee was required to arbitrate disputes arising from
her employment. In addition, the letter stated that "there are no other
agreements, understandings, or representations, whether written or oral . . . with
respect to this offer of employment . . . ." However, the letter also stated that
Brownlee's employment "will be subject to all Company policies and practices
as may currently exist or as may be curtailed, modified or implemented in the
sole discretion of the Company." In addition, the court found that Brownlee
understood and acknowledged that her employment with TSI was contingent on
additional factors, including an onboarding process.
The court found that during the onboarding process, Brownlee
electronically signed an acknowledgment receipt providing:
I understand that by continuing my employment with
TSI following the effective date of the Dispute
Resolution Rules, I am agreeing that all workplace
disputes or claims, regardless of when those disputes or
claims arose, will be resolved under the Dispute
Resolution Rules binding arbitration program.
The court concluded that although Brownlee could not save a copy of the
acknowledgement at the time she signed it, nothing in the record suggests that
TSI or Ramos inhibited her ability to save the document. The court accepted
Brownlee's testimony that she could not save or print the document, or the TSI
handbook referencing the dispute resolution program, because she completed
onboarding on a home computer, and did not have a printer. The record
contained undisputed evidence that Brownlee and all employees had access to
the TSI dispute resolution policy from any TSI network computer, or through a
website available to them on the internet.
The court also found that Brownlee, in her position as a manager, when
preparing to terminate an employee she supervised, requested proof that the
employee had acknowledged receipt of the TSI dispute resolution rules,
evidencing her knowledge of the program. In addition, Brownlee advised other
employees on how to access the TSI handbook, which references TSI's dispute
resolution program. Finally, the court observed that Brownlee acquiesced in
being subject to the dispute resolution program by continuing to work for TSI
once aware of the program. The court held that it would be "inconsistent to find
or infer that a manager was unaware of a policy that he or she directly, indirectly,
tacitly or expressly acquiesced in or communicated to subordinates."
Turning to the scope of the arbitration policy, the court concluded that the
allegations in Brownlee's complaint fell within the broad scope of the TSI
dispute resolution program. The arbitration provision in the TSI handbook
[i]f (1) your dispute involves a claim under federal,
state or local law, (2) you are not satisfied with the
results you received through the internal process, and
(3) you want to pursue the matter further against TSI,
you must file a request for arbitration with the
American Arbitration Association ("AAA") to pursue
the claim. By accepting an offer of employment or by
continuing employment with TSI, you agreed, as a
condition of employment that all Covered Claims are
subject to arbitration, not trial in court. Covered Claims
include all violations or infringements of a legally
protected right arising out of or in any way relating to
a team member's employment.
You received the Dispute Resolution Rules when they
were implemented or when you began your
employment with TSI, whichever occurred later. The
Dispute Resolution Rules are also available on our
intranet – please review them!
"Covered Claims" include "[d]iscrimination . . . on the basis of race, sex,
religion, national origin, age, disability or other unlawful basis," "retaliation,"
and "[v]iolations of any common law or constitutional provision, federal, state,
county, municipal or other government statute, ordinance, regulation or public
Finally, the court concluded that the terms of the TSI dispute resolution
program do not shorten the statute of limitations for Brownlee's LAD claims.
TSI requires employees to submit a request for an internal review within the
time period allowed by law for the covered claims. A request for arbitration is
required within thirty days of the decision on the internal review, or sixty days
of the request for an internal review if no decision is issued. Because Brownlee
may initiate the internal TSI process at any time within the applicable statute of
limitations for her claims, the court concluded that this aspect of the TSI dispute
resolution program was legally sound. On September 11, 2017, the court entered
an order dismissing Brownlee's complaint with prejudice and compelling her to
submit her claims to arbitration. This appeal followed.
On appeal, Brownlee argues that the trial court erred when it concluded
that her employment contract included a provision – acceptance of TSI's dispute
resolution program – not expressly stated in the January 28, 2011 offer of
employment. In addition, she contends that the trial court erred when it admitted
evidence of her electronic acknowledgement executed during her onboarding
process, and in its conclusion that her inability to save and print the
acknowledgment and TSI handbook did not render her acknowledgment invalid.
Brownlee also argues that TSI's dispute resolution rules did not contain an
unequivocal waiver of her right to judicial resolution of her claims and truncated
the statute of limitations for her claims, that TSI was barred by promissory
estoppel from enforcing its dispute resolution program against her, and that her
continued employment could not constitute her acceptance of the program.
"[A]rbitration . . . is a favored means of dispute resolution." Hojnowski
v. Vans Skate Park, 187 N.J. 323, 342 (2006); see, e.g., Martindale v. Sandvik,
Inc., 173 N.J. 76, 84-85 (2002); Garfinkel v. Morristown Obstetrics &
Gynecology Assocs., 168 N.J. 124, 131 (2001). The Uniform Arbitration Act,
N.J.S.A. 2A:23B-1 to -32, provides that agreements to arbitrate are valid unless
there are grounds that "exist at law or in equity for the revocation of a
contract." N.J.S.A. 2A:23B-6. "An arbitration agreement is a contract and is
subject, in general, to the legal rules governing the construction of contracts."
McKeeby v. Arthur, 7 N.J. 174, 181 (1951) (citation omitted).
"An agreement to arbitrate 'must be the product of mutual assent, as
determined under customary principles of contract law.'" Barr v. Bishop Rosen
& Co., Inc., 442 N.J. Super. 599, 605-06 (App. Div. 2015) (quoting Atalese v.
U.S. Legal Servs. Grp., LP, 219 N.J. 430, 442 (2014)). "Mutual assent requires
that the parties understand the terms of their agreement[,]" and where the
"agreement includes a waiver of a party's right to pursue a case in a judicial
forum, 'clarity is required.'" Barr, 442 N.J. Super. at 606 (quoting Moore v.
Woman to Woman Obstetrics & Gynecology, LLC, 416 N.J. Super. 30, 37 (App.
Our review of a trial court's fact-finding is narrowly circumscribed.
"Findings by the trial judge are considered binding on appeal when supported
by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v.
Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). However, because "[t]he
existence of a valid and enforceable arbitration agreement poses a question of
law, . . . our standard of review of [that issue] is de novo." Barr, 442 N.J. Super.
at 605 (citing Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174, 186 (2013)); see
also Atalese, 219 N.J. at 445-46.
Having carefully reviewed the parties' arguments in light of the record and
applicable legal principles, we conclude that the record contains ample evidence
supporting the trial court's findings of fact and conclusions of law. There is
evidentiary support for the conclusion that Brownlee accepted the TSI dispute
resolution program as a contractual term of her employment. The written offer
of employment, upon which Brownlee relies, conditioned Brownlee's
employment on existing TSI policies, which included the dispute resolution
policy in place at the time that the offer of employment was made. In addition,
the record supports the trial court's finding that Brownlee was aware of and
enforced the TSI dispute resolution policy in her capacity as a manager. Her
continued employment at TSI while aware of the policy supports the trial court's
finding of acquiescence by Brownlee.
We conclude that the additional arguments raised by Brownlee are without
sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(1)(E),
and affirm the September 11, 2017 order of the trial court substantially for the
reasons expressed in its written statement of reasons accompanying the order.