                        NOT FOR PUBLICATION WITHOUT THE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-2374-17T3

D.M.,

        Plaintiff-Appellant,

v.

SAME DAY DELIVERY SERVICE,
INC. and ASHLEY MARTINEZ,

     Defendants-Respondents.
_____________________________

              Argued August 14, 2018 – Decided August 23, 2018

              Before Judges Sumners and Gilson.

              On appeal from Superior Court of New Jersey,
              Law Division, Passaic County, Docket No.
              L-3203-17.

              Mark Mulick argued the cause for appellant.

              Jamie S. Felsen (Milman Labuda Law Group PLLC)
              of the New York bar, admitted pro hac vice,
              argued the cause for respondents (Milman
              Labuda Law Group PLLC, attorneys; Netanel
              Newberger, of counsel and on the brief; Jamie
              S. Felsen, on the brief).

PER CURIAM

        This appeal involves a dispute over whether plaintiff must

arbitrate      her   claim   that    she   was   subject   to   a   hostile   work
environment    and   terminated   because   of   her   sex   and    sexual

orientation.    Plaintiff appeals from a January 19, 2018 order

dismissing her complaint and directing her to arbitrate her claim.

We affirm because plaintiff executed a valid and enforceable

agreement to arbitrate any dispute related to her employment or

the termination of her employment.

                                   I.

     Plaintiff worked for defendant Same Day Delivery, Inc. (Same

Day) as a delivery person for just over two months from June to

August 2017.    She was hired on June 6, 2017.         On that day, she

responded to an internet notification for potential employment.

She then met with an employee of Same Day, who offered her a

position as a driver at a facility in Elizabeth.        Later that day,

plaintiff was requested to review and complete certain forms

through a website.     Plaintiff reviewed and electronically signed

a number of documents connected to her employment, including an

"Arbitration Agreement."

     The Arbitration Agreement was a one-page document consisting

of six paragraphs.    Among other things, the Agreement provided:

          In consideration of my assignment/employment
          with the Same Day Delivery Inc., ("Company")
          its promise to arbitrate all employment-
          related disputes and my receipt of the
          compensation, pay raises and other benefits
          paid to me by the Company and or its PEO, at
          present and in the future, I agree that any

                                   2                               A-2374-17T3
          and all controversies, claims, or disputes
          with anyone (including the Company and any
          employee, officer, director, shareholder or
          benefit plan of the Company in their capacity
          as such or otherwise) arising out of, relating
          to, or resulting from my assignment and or
          employment with the Company or the termination
          of my assignment or employment with the
          Company,   including   any  breach   of   this
          agreement, shall be subject to binding
          arbitration under the Federal Arbitration Act
          and pursuant to New York law. Disputes which
          I agree to arbitrate, and thereby agree to
          waive any right to a trial by jury, include
          any statutory claims under state or federal
          law . . . .

    The agreement also stated:

          Furthermore, I agree that any controversy,
          claim, or dispute covered by this Policy will
          be arbitrated on an individual basis. No
          controversy, claim, or dispute between an
          employee and Company may be consolidated or
          joined with a dispute between any other
          employee and Company nor may an individual
          employee seek to bring his/her dispute on
          behalf of other employees as a class or
          collective action. . . . Accordingly, except
          as provided for by the Rules and this
          agreement, neither the Company nor I will be
          permitted to pursue court action regarding
          claims that are subject to arbitration.

    Finally, the last paragraph of the Arbitration Agreement

stated:

          I also understand that I have a right to
          consult with a person of my choosing,
          including an attorney, before signing this
          document. I am agree to waive my voluntarily
          and knowingly, and free from any duress or
          coercion whatsoever to a trial by a trial


                                 3                         A-2374-17T3
           judge or jury as well as my right to
           participate in a class or collective action.

     Plaintiff began work on June 11, 2017, and was terminated on

August   21,   2017.    On   September   25,   2017,   plaintiff      filed   a

complaint against Same Day and one of its managers in the Superior

Court.   The complaint asserted that the manager made "sexually

provocative comments about plaintiff's body" and subjected her to

a   "hostile    work   environment   based     on   her   sex   and    sexual

orientation."     Plaintiff also alleged that her work performance

was unfairly criticized and she was fired because she rejected the

manager's advances.      Thus, plaintiff contended that the manager

and Same Day violated New Jersey's Law Against Discrimination

(LAD), N.J.S.A. 10:5-1 to -49, and she sought damages, including

lost wages, emotional distress, and attorney's fees.

     In response, Same Day and the manager moved to dismiss the

complaint and compel arbitration.          The trial court heard oral

arguments and, on January 19, 2018, entered an order directing

plaintiff to arbitrate her claims and dismissing the complaint.

The court stated its reasons for the ruling on the record.                 The

court explained that while the last sentence of the Arbitration

Agreement "doesn't make sense," in at least two other places the

agreement stated that arbitration was plaintiff's sole remedy and

that plaintiff waived her right to a jury trial.           The trial court


                                     4                                A-2374-17T3
also reasoned that an ordinary person reading the Arbitration

Agreement    would   understand   that   she   or   he   was   agreeing    to

arbitrate.    Moreover, the agreement advised plaintiff to consult

with someone who could explain its terms if she had any questions.

                                   II.

      Plaintiff appeals from the January 19, 2018 order. She argues

that the trial court erred because (1) the Arbitration Agreement

was unclear and ambiguous; (2) there was no consideration for the

agreement; and (3) plaintiff did not get any advice concerning its

meaning and, therefore, signed the agreement without understanding

it.   We are not persuaded by these arguments, because (1) the

Arbitration Agreement unambiguously stated multiple times that

plaintiff agreed to give up her right to bring a claim in court

and, instead, agreed to arbitrate any disputes concerning her

employment or the termination of her employment; (2) the agreement

was clearly presented as a condition of her employment; and (3)

plaintiff decided to not "consult with a person of [her] choosing,

including an attorney, before signing" the agreement.

      We begin our analysis by identifying our standard of review

and the applicable law.     The validity of an arbitration agreement

is a question of law, which we review de novo.            Atalese v. U.S.

Legal Servs. Grp., L.P., 219 N.J. 430, 445-46 (2014); Barr v.

Bishop Rosen & Co., 442 N.J. Super. 599, 605 (App. Div. 2015).

                                    5                               A-2374-17T3
       The Arbitration Agreement signed by plaintiff states that it

is governed by "the Federal Arbitration Act and pursuant to New

York law."    The Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16,

applies to

            [a] written provision in . . . a contract
            evidencing a transaction involving commerce to
            settle by arbitration a controversy thereafter
            arising out of such contract or transaction
            . . . .

            [9 U.S.C. § 2.]

       Here, plaintiff is a New Jersey resident and Same Day is a

company involved in commerce.         Same Day does not expressly state

that its business involves interstate commerce, but plaintiff does

not dispute that the FAA governs.         Neither party cites to New York

law.    Instead, Same Day cites to the FAA and New Jersey case law

and    plaintiff   cites   to   New   Jersey   case    law   concerning   the

enforceability of arbitration agreements.             Because neither party

points to any conflict between the FAA and New York law or between

New Jersey and New York law on the issues relevant to this appeal,

we use the FAA and New Jersey law.

       The FAA and "the nearly identical New Jersey Arbitration Act,

N.J.S.A. 2A:23B-2 to -32, enunciate federal and state policies

favoring arbitration."      Atalese, 219 N.J. at 440.        Under both the

FAA and New Jersey law, arbitration is fundamentally a matter of

contract.    9 U.S.C. § 2; NAACP of Camden Cty. E. v. Foulke Mgmt.

                                      6                              A-2374-17T3
Corp., 421 N.J. Super. 404, 424 (App. Div. 2011).                "The FAA

'permits states to regulate . . . arbitration agreements under

general   contract   principles,'   and   a   court   may   invalidate    an

arbitration clause 'upon such grounds as exist at law or in equity

for the revocation of any contract.'"         Atalese, 219 N.J. at 441

(quoting Martindale v. Sandvik, Inc., 173 N.J. 76, 85 (2002), and

9 U.S.C. § 2).

     "An agreement to arbitrate, like any other contract, 'must

be the product of mutual assent, as determined under customary

principles of contract law.'"   Id. at 442 (quoting NAACP of Camden

Cty. E., 421 N.J. Super. at 424).       Accordingly, to be enforceable,

an arbitration agreement must be clear in stating that the parties

are agreeing to arbitrate and that the parties are agreeing to

give up the right to pursue a claim in court.         In that regard, our

Supreme Court has explained:

           Mutual assent requires that the parties have
           an understanding of the terms to which they
           have agreed. "An effective waiver requires a
           party to have full knowledge of his legal
           rights and intent to surrender those rights."
           . . . "By its very nature, an agreement to
           arbitrate involves a waiver of a party's right
           to have her claims and defenses litigated in
           court." . . . But an average member of the
           public   may  not   know   ––   without   some
           explanatory comment –– that arbitration is a
           substitute for the right to have one's claim
           adjudicated in a court of law.

                 . . . .

                                    7                              A-2374-17T3
            No particular form of words is necessary to
            accomplish a clear and unambiguous waiver of
            rights. . . . Arbitration clauses –– and other
            contractual clauses –– will pass muster when
            phrased    in   plain    language   that    is
            understandable to the reasonable [person].

            [Id. at 442, 444 (citations omitted).]

     Here, the Arbitration Agreement was clear in stating that

plaintiff was agreeing to arbitrate any disputes concerning her

employment or termination of her employment with Same Day.            In

that regard, the Arbitration Agreement expressly stated:

            I agree that any and all controversies,
            claims, or disputes with anyone (including the
            Company and any employee, officer, director,
            . . . of the Company . . .) arising out of,
            relating to, or resulting from my assignment
            and or employment with the Company or the
            termination of my assignment or employment
            with the Company . . . shall be subject to
            binding arbitration . . . .

     The agreement also was clear in stating that plaintiff was

giving up the right to pursue a jury trial or court action:

            Disputes which I agree to arbitrate, and
            thereby agree to waive any right to a trial
            by jury, include any statutory claims under
            state or federal law . . . .

Moreover, the agreement repeatedly stated that arbitration was the

exclusive    mechanism   for   resolving   disputes   and    that   the

arbitration decision would be final and "binding."




                                  8                            A-2374-17T3
     Plaintiff      first     argues    that       certain      sentences       in    the

agreement were unclear and ambiguous thereby making the entire

agreement     incomprehensible.             In    support      of     that     argument,

plaintiff points to several parts of the Arbitration Agreement and

argues   that    the   language      used    was    vague      or    ambiguous.         In

particular,      plaintiff     highlights         the   last        sentence    of    the

agreement, which states:           "I am agree to waive my voluntarily and

knowingly, and free from any duress or coercion whatsoever to a

trial by a trial judge or a jury as well as my right to participate

in a class or collective action."                Plaintiff also points out that

the agreement incorrectly cites to a statute as "Title VII of the

Civil Rights Acts of 19866," and that the agreement contained

undefined terms such as "PEO" and "Rules."                      Finally, plaintiff

argues that the agreement does not explain the difference between

arbitration and a trial by jury, including the difference in

discovery,    nor   does     the   agreement       explain     the     procedure      for

appellate review of an arbitrator's decision.

     While several sentences in the Arbitration Agreement are

poorly drafted, those sentences do not make the agreement ambiguous

because the remainder of the document is clearly written.                        In that

regard, it expressly states that plaintiff is agreeing to arbitrate

any employment dispute and is giving up the right to bring a claim

in court.       Indeed, out of the six paragraphs of the full-page

                                         9                                       A-2374-17T3
Arbitration Agreement, plaintiff points to several poorly written

sentences. The remainder of the Arbitration Agreement is clear in

explaining that plaintiff was agreeing to arbitrate.                     The poorly

written    sentences,    moreover,    cannot      be    read    to    suggest   that

arbitration was not the exclusive forum.               At best, those sentences

fail to reiterate that plaintiff was agreeing to voluntarily and

freely waive her right to trial by a jury or a judge, and to pursue

a class action.

     There also is no support in the record for plaintiff's second

argument that there was no consideration for the Arbitration

Agreement.     Plaintiff was hired on June 6, 2017.                  That same day,

plaintiff was advised to log on to a website to review and

electronically    sign   several     forms   to    complete      her     employment

application.     Plaintiff acknowledges that she logged on to the

website,    reviewed    the   documents,     and       signed   the     Arbitration

Agreement.     An offer of employment or continued employment is

adequate consideration for an arbitration agreement.                    Martindale,

173 N.J. at 86.    That plaintiff was offered the job before signing

the Arbitration Agreement several hours later is not material on

this record.

     Finally, there is no support for plaintiff's last argument

that she was rushed into signing the Arbitration Agreement and,

therefore, did not understand it.              The Arbitration Agreement

                                     10                                     A-2374-17T3
expressly advised plaintiff that she had the right to consult with

"a person of [her] choosing, including an attorney, before signing

the" agreement.     Plaintiff does not identify anyone from Same Day

who allegedly rushed her into signing the Arbitration Agreement.

Instead,     plaintiff    acknowledges      "that    the   [A]rbitration

[A]greement states that I had a right to speak to a person of my

choosing, including an attorney, before signing the document.

However, I had no time to do that, nor did I have funds to hire

an attorney."     Thus, plaintiff's certification admits that she was

the one who decided that she had no time to consult with anyone

and no funds to hire an attorney.

      In short, although the arbitration agreement in this case was

not   a   well-crafted   document,    it   was   sufficiently   clear    in

explaining that plaintiff was agreeing to arbitrate and that she

was giving up her right to pursue a claim in court.             Thus, by

dismissing her complaint and directing arbitration, plaintiff will

be able to pursue her claim in the forum she agreed to; that is,

an arbitration.

      Affirmed.




                                     11                           A-2374-17T3
