                                NOT FOR PUBLICATION WITHOUT THE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-0816-17T4

MONIQUE BROWNLEE,

           Plaintiff-Appellant,

v.

TOWN SPORTS INTERNATIONAL
HOLDINGS, INC. and MAJORIE
RAMOS,

     Defendants-Respondents.
__________________________________

                    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
                    briefs).

                    Gordon & Rees, LLP, attorneys for respondents
                    (Michael S. Hanan, on the brief).
      The opinion of the court was delivered by

DeALMEIDA, J.A.D.

      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


                                                                         A-0816-17T4
                                        2
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

                                                                          A-0816-17T4
                                         3
            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

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                                        4
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

provides:

            [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,"


                                                                            A-0816-17T4
                                         5
and "[v]iolations of any common law or constitutional provision, federal, state,

county, municipal or other government statute, ordinance, regulation or public

policy."

      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


                                                                           A-0816-17T4
                                         6
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.


                                                                          A-0816-17T4
                                        7
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.

Div. 2010)).

      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


                                                                            A-0816-17T4
                                         8
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.

      Affirmed.




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