                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-4329-12T3

SERGIO RODRIGUEZ,

         Plaintiff-Appellant,
                                       APPROVED FOR PUBLICATION
v.
                                              June 19, 2014

RAYMOURS FURNITURE COMPANY, INC.,         APPELLATE DIVISION
a corporation, t/a RAYMOUR &
FLANIGAN,

          Defendant-Respondent.
_________________________________

         Argued March 18, 2014 – Decided June 19, 2014

         Before Judges Messano, Rothstadt and Lisa.

         On appeal from the Superior Court of New
         Jersey, Law Division, Morris County, Docket
         No. L-1922-11.

         Alan L. Krumholz argued the cause for
         appellant (Krumholz Dillon, P.A., attorneys;
         Mr. Krumholz, on the briefs).

         Edward   T.   Groh   argued   the    cause       for
         respondent.

     The opinion of the court was delivered by

LISA, J.A.D. (retired and temporarily assigned on recall).

     The primary issue in this appeal is whether a contractual

provision, contained in an employment application, by which the

employee waives the two-year statute of limitations applicable

to claims against the employer and shortens the period for such
claims to six months, should be enforceable.               The trial court

rejected the employee's unconscionability argument.                 The court

found     that   the    provision    was    clear   in    its     terms,      was

conspicuously placed in the application form, and was reasonable

and not contrary to any public policy.               Therefore, the court

concluded that the provision was enforceable.                  In a secondary

argument, plaintiff contended that a second application form he

completed, in conjunction with a promotion several years after

his initial hire, which did not contain the shortened limitation

period, constituted a novation and voided the initial contract.

The court rejected this argument, noting that a novation is

never presumed and finding nothing in the second application or

in the circumstances of its completion to suggest any intent to

void the provisions of the initial contract.

    Because plaintiff filed his complaint nine months after his

alleged    wrongful    termination   by    defendant,    the    court   granted

defendant's summary judgment motion and dismissed the complaint

as time-barred.        On appeal, plaintiff makes the same arguments

before us as he made in the trial court.                 We agree with the

trial court's analysis and conclusions, and we affirm.

                                     I.

    In August 2007, plaintiff approached defendant, a retail

furniture company, seeking employment.              The customer delivery




                                      2                                 A-4329-12T3
manager gave plaintiff an application form, which he was asked

to complete and return.        Plaintiff took the form home with him.

The   form   was    written    completely       in   the   English    language.

Plaintiff was born in 1971 in Argentina and, after obtaining an

eighth-grade education there, 1 he came to the United States in

1987 at about age sixteen.         Plaintiff contends that his ability

to read or speak English is limited, although he had been living

in this country for twenty years at the time of this application

process.

      Plaintiff completed the application form at home with the

assistance of a close friend who was fluent in English and who

translated the application from English to Spanish.                   According

to plaintiff, his friend translated "[o]nly the places where I

had to fill out."      Plaintiff acknowledged that as his friend was

assisting him he had no questions about the application.                       The

next day, plaintiff returned the completed and signed form to

defendant,   handing    it    to   the   same    person    from   whom   he    had

received it.       Plaintiff acknowledged that when he returned the

form he did not have any questions about it.

      The application form is two pages in length.                   Toward the

bottom of the second page, immediately above the signature line,

there is an "Applicant's Statement" in the following form:

1
   Plaintiff received a seventh-grade education, which                          is
equivalent to an eighth-grade education in the United States.


                                         3                               A-4329-12T3
Applicant's        Statement –   READ
CAREFULLY BEFORE SIGNING - IF YOU ARE
HIRED, THE FOLLOWING BECOMES PART OF
YOUR OFFICIAL EMPLOYMENT RECORD AND
PERSONNEL FILE.

I understand this employment application is
not a promise of an offer of employment. I
further understand that should I receive and
accept an offer of employment, my employment
does not constitute any form of contract,
implied or expressed, and such employment
will be terminable at will either by myself
or Raymour & Flanigan upon notice of one
party to the other. My continued employment
would    be   dependent    on   satisfactory
performance  and   continued  need   for  my
services as determined by Raymour & Flanigan.

I authorize investigation of all statements
contained in this application. I understand
that misrepresentation or omission of facts
called for are grounds for a refusal to
offer employment or a cause of dismissal if
hired.

I AGREE THAT ANY CLAIM OR LAWSUIT RELATING
TO MY SERVICE WITH RAYMOUR & FLANIGAN MUST
BE FILED NO MORE THAN SIX (6) MONTHS AFTER
THE DATE OF THE EMPLOYMENT ACTION THAT IS
THE SUBJECT OF THE CLAIM OR LAWSUIT.     I
WAIVE ANY STATUTE OF LIMITATIONS TO THE
CONTRARY.

I WAIVE TRIAL BY JURY IN ANY LITIGATION
ARISING   OUT   OF,   OR   RELATING   TO,   MY
EMPLOYMENT    WITH   RAYMOUR     &   FLANIGAN,
INCLUDING CLAIMS OF WRONGFUL OR RETALIATORY
DISCIPLINE OR DISCHARGE; CLAIMS OF AGE,
SEXUAL,    SEXUAL   ORIENTATION,    RELIGIOUS,
PREGNANCY OR RACIAL DISCRIMINATION; CLAIMS
UNDER TITLE VII OF THE CIVIL RIGHTS ACT,
TITLE IX, AMERICANS WITH DISABILITIES ACT,
AGE   DISCRIMINATION   IN    EMPLOYMENT   ACT,
EMPLOYEE RETIREMENT INCOME SECURITY ACT,


                      4                          A-4329-12T3
              FAIR LABOR STANDARDS ACT, AND ALL OTHER
              APPLICABLE NON-DISCRIMINATION, EMPLOYMENT OR
              WAGE AND HOUR STATUTES.

      Plaintiff          affixed    his    signature    and     inserted     the     date

immediately        below    this     statement.        As   depicted       above,      the

prefatory language is in bold-faced large print, and the final

two paragraphs, containing the shortened limitation period and

jury trial waiver, are completely capitalized.

      About        one    week     after    submitting        the    application,         a

representative of defendant contacted plaintiff and asked him to

submit to a drug screen.                  Plaintiff successfully completed it

and was hired as a helper 2 in mid-September 2007.                        The two-page

application form was the only document plaintiff completed in

connection with his hiring.

      In 2010, defendant promoted plaintiff to the position of
          3
driver,       in    which    he    would    be   the   leader   of    a   team    making

furniture deliveries.              Plaintiff acknowledged in his deposition

that in the new position he would be responsible for the team's

performance, he would be required to read the delivery manifests,

which were written in English, and he would need to communicate

with customers primarily in English.


2
    Plaintiff's official title was "Customer Delivery Assistant."
3
  The precise dates of plaintiff's application for the new
position, of his required road test and drug screening, and the
effective date of the promotion are unclear from the record.


                                             5                                   A-4329-12T3
      The driver's application form consists of four pages.                            It

requires         the     applicant     to     provide        personal    information,

employment history, and information regarding driving experience

and     driving         record.        Plaintiff     filled      in     the     relevant

information and signed the form.                This form does not contain any

provisions shortening the period during which an action against

the employer could be brought or waiving a jury trial.

      On        April     5,   2010,    while    delivering       furniture       to     a

customer's home, plaintiff injured his knee.                       He was diagnosed

with a torn meniscus, necessitating a temporary absence from

work.          The injury was surgically repaired on July 21, 2010.

Plaintiff        was      permitted    to   return      to     light-duty      work    on

September 14, 2010, and then to unrestricted work on September

28, 2010.

      Three days later, on October 1, 2010, defendant instituted

a company-wide reduction in force (RIF), laying off a total of

102   workers,          including     plaintiff.        According       to    defendant,

plaintiff was selected for the RIF because of sub-standard job

performance.            According to plaintiff, in the complaint he filed

on July 5, 2011, he was terminated in retaliation for having

filed      a    workers'       compensation     claim    and     was    discriminated

against based upon disability, in violation of the Law Against

Discrimination (LAD), N.J.S.A. 10:5-1 to -49.




                                            6                                   A-4329-12T3
    At     the   close     of     discovery,      defendant    moved    for    summary

judgment    on      various       grounds,        including    that     plaintiff's

complaint was time-barred.             Because the trial court agreed with

that contention, it did not reach any of the other bases for

summary judgment.

    In     ruling    on    the     motion,      the   court   concluded   that      the

waiver provision in the initial application "is clear" and "is

clearly brought to the attention of anybody reading the document

because of the capital letters and large print."                   Citing Mirra v.

Holland America Line, 331 N.J. Super. 86 (App. Div. 2000), the

court stated that parties can validly enter into agreements to

limit the time within which lawsuits can be brought "provided

that it's a reasonable limitation, [and] does not violate public

policy."     The court found no basis for a finding "that six

months is against any public policy or is an unreasonable time

within   which      to    bring    a   claim     about   which    one   would     know

immediately upon the event happening."

    The     court        also    rejected       plaintiff's    novation       argument

regarding    the     driver's       application.         Citing   Sixteenth        Ward

Building and Loan Association v. Reliable Loan, 125 N.J. Eq. 340

(E. & A. 1939), the court noted the well-settled principle that

a novation is never presumed.                   The court then concluded that

there was nothing in either of the agreements and no evidence in




                                            7                                 A-4329-12T3
the record to support a conclusion that the second application

was intended as a novation.

       Accordingly,       summary   judgment          was     entered      dismissing

plaintiff's complaint.         This appeal followed.

                                         II.
                                         A.

       The standard of review by which we must analyze the issues

before us is well-settled.               Trial courts must grant summary

judgment     "if      the      pleadings,           depositions,        answers     to

interrogatories       and    admissions        on    file,    together     with     the

affidavits, if any, show that there is no genuine issue as to

any    material    fact     challenged    and       that    the   moving    party   is

entitled to a judgment . . . as a matter of law."                    R. 4:46-2(c).

The appropriate inquiry must determine "'whether the evidence

presents a sufficient disagreement to require submission to a

jury or whether it is so one-sided that one party must prevail

as a matter of law.'"          Brill v. Guardian Life Ins. Co. of Am.,

142 N.J. 520, 533 (1995) (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d

202, 214 (1986)).         The court must review the evidence presented

"in the light most favorable to the non-moving party."                        Id. at

540.




                                          8                                  A-4329-12T3
      Our review of summary judgment orders is de novo, using the

same standard applied by trial courts.             W.J.A. v. D.A., 210 N.J.

229, 237-38 (2012).      We accord no special deference to the trial

court's   assessment    of   the   record,       because   the   trial   court's

decision amounts to a ruling on a question of law rather than a

determination of the credibility of testimony rendered in court.

See Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366,

378 (1995).      Further, a trial court's interpretation of the

meaning of a contract is also a matter of law, subject to de

novo review.     Fastenberg v. Prudential Ins. Co. of Am., 309 N.J.

Super. 415, 420 (App. Div. 1998).

                                        B.

      Plaintiff contends that the shortened limitation period in

the   initial     application      is        unconscionable      and   therefore

unenforceable.    Generally, "[a] contract is unenforceable if its

terms are manifestly unfair or oppressive and are dictated by a

dominant party."       Howard v. Diolosa, 241 N.J. Super. 222, 230

(App. Div.) (citing Kuzmiac v. Brookchester, 33 N.J. Super. 575

(App. Div. 1955)), certif. denied, 122 N.J. 414 (1990).                  A party

raising a claim of unconscionability has the burden of showing

"some over-reaching or imposition resulting from a bargaining

disparity between the parties, or such patent unfairness in the

terms of the contract that no reasonable [person] not acting




                                        9                                A-4329-12T3
under       compulsion       or    out     of     necessity      would     accept    them."

Rotwein v. Gen. Accident Grp., 103 N.J. Super. 406, 418 (Law Div.

1968).       In the waiver context, "a party's waiver of statutory

rights       'must    be     clearly       and       unmistakably    established,         and

contractual language alleged to constitute a waiver will not be

read     expansively.'"             Garfinkel         v.    Morristown     Obstetrics        &

Gynecology Assocs., 168 N.J. 124, 132 (2001) (quoting Red Bank

Reg'l Educ. Ass'n v. Red Bank Reg'l High Sch. Bd. of Educ., 78

N.J. 122, 140 (1978)).

       Unconscionability            analysis         requires    consideration      of    two

factors –— procedural unconscionability and substantive uncon-

scionability.         The former arises out of defects in the process

by which the contract was formed, and "'can include a variety of

inadequacies,        such     as    age,    literacy,        lack   of   sophistication,

hidden or unduly complex contract terms, bargaining tactics, and

the particular setting existing during the contract formation

process.'"         Muhammad v. Cnty. Bank of Rehoboth Beach, 189 N.J. 1,

15 (2006) (quoting Sitogum Holdings, Inc. v. Ropes, 352 N.J.

Super. 555, 564-66 (Ch. Div. 2002)), cert. denied, 549 U.S. 1338,

127    S.    Ct.     2032,    167    L.     Ed.      2d    763   (2007).      The    latter

"generally involves harsh or unfair one-sided terms."                                  Ibid.

Stated       differently,           substantive            unconscionability        "simply

suggests the exchange of obligations so one-sided as to shock




                                                10                                  A-4329-12T3
the    court's      conscience."         Sitogum    Holdings,   supra,   352     N.J.

Super. at 565 (citations omitted).

       Generally, a "sliding scale" analysis is utilized in tandem,

considering the respective degrees of procedural and substantive

unconscionability found to exist.                  Muhammad, supra, 189 N.J. at

16 n.3 (citing Sitogum Holdings, supra, 352 N.J. Super. at 565-

66).        Under   this     approach,    overall     unconscionability    may    be

found if there is a gross level in one category but only a

lesser level in the other.                Sitogum Holdings, supra, 352 N.J.

Super. at 565-66.

       In    support    of    his   unconscionability      argument,     plaintiff

first relies on the contention that the six-month limitation

period is embodied in a contract of adhesion.                   Although he can

point to no specific record evidence to support that this was a

take-it-or-leave-it form contract in which he had no ability to

negotiate any terms, plaintiff argues that it is obvious that

prospective employees for low-level jobs such as a furniture

delivery helper were indeed in that position.

       Defendant      argues    that     because    plaintiff   never    asked   any

questions about the application or attempted to negotiate the

disputed term (or any terms) he has failed to establish that the

terms were non-negotiable.             Defendant relies on a case in which

a highly educated individual, experienced in the field of human




                                           11                              A-4329-12T3
resources, applied for the position of Benefits Administrator

and, in her discussions with the prospective employer during the

application process, did not attempt to alter any terms of the

employment application form and provided no evidence that the

employer would have refused to consider her if she did not agree

to the arbitration provision contained in the application form.

Martindale v. Sandvik, Inc., 173 N.J. 76, 91 (2002).                            On that

basis, the Court was "not persuaded that [the] plaintiff was

forced    to    sign      an    inflexible         contract    of    adhesion      in   the

circumstances        of        her     completion      of     the     Application       for

Employment."         Ibid.           Notwithstanding        that    determination,      the

Court concluded that the result would be the same even if it was

a contract of adhesion in light of the facts of the case.                           Ibid.

      We find defendant's argument unpersuasive.                       The case before

us is more akin to the circumstances in Muhammad, supra, 189 N.J.

at   18-19,     in     which         the   court    recognized       that   "the    gross

disparity in the relative bargaining positions of the parties

[was] self-evident from the nature of the payday loan contract

between a consumer and a financial entity."                         This led the court

to   conclude    that      the        agreement     was   "clearly     a    contract     of

adhesion."      Id. at 18.            The circumstances in this case likewise

reflect    a    self-evident           non-negotiable        employment     application

form.     We accordingly deem this a contract of adhesion.




                                             12                                 A-4329-12T3
      Plaintiff    argues     that   because   this    was   a     contract   of

adhesion it was per se unenforceable against the adhering party.

This argument is unsupported by any authority.                Indeed, "[t]he

determination that a contract is one of adhesion . . . 'is the

beginning, not the end, of the inquiry' into whether a contract,

or any specific term therein, should be deemed unenforceable

based on policy considerations."           Muhammad, supra, 189 N.J. at

15 (quoting Rudbart v. N. Jersey Dist. Water Supply Comm'n, 127

N.J. 344, 354, cert. denied, 506 U.S. 871, 113 S. Ct. 203, 121 L.

Ed. 2d 145 (1992)).

      Plaintiff next argues that because the courts of this State

have determined that the appropriate statute of limitations for

LAD claims and for common law claims of retaliatory discharge

for   filing   a   workers'    compensation    claim   is    two    years,    see

Montells v. Haynes, 133 N.J. 282, 286 (1993); Labree v. Mobile

Oil Corp., 300 N.J. Super. 234, 242 (App. Div. 1997), the two

year limitation period provided by N.J.S.A. 2A:14-2 cannot be

modified by agreement.          Well-settled law is to the contrary.

Long ago, the United States Supreme court held that

           it is well established that, in the absence
           of a controlling statute to the contrary, a
           provision in a contract may validly limit,
           between the parties, the time for bringing
           an action on such a contract to a period
           less than that prescribed in the general
           statute of limitations, provided that the




                                      13                               A-4329-12T3
           shorter period itself shall be a reasonable
           period.

           [Order of United Comm. Travelers of Am. v.
           Wolfe, 331 U.S. 586, 608, 67 S. Ct. 1355,
           1365, 91 L. Ed. 1687, 1700 (1947).]

    New Jersey courts have followed this principle.                    See, e.g.,

Eagle Fire Prot. Corp. v. First Indem. of Am. Ins. Co., 145 N.J.

345, 354-63 (1996) (upholding a one-year limitation period in a

surety   bond,    which     modified     the     six-year     limitation      period

provided   by    statute);      Mirra,       supra,    331   N.J.   Super.     at    90

(rejecting the plaintiff's argument that the parties could not

contract   for    a   limited       filing    period    under   the   New     Jersey

Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -195, because the

limitation was reasonable, and neither the CFA nor New Jersey's

general statute of limitations restricted the ability of the

parties to shorten the period in which claims could be filed);

A.J. Tenwood Assocs. v. Orange Senior Citizens Hous. Co., 200

N.J. Super. 515, 523-25 (App. Div.) (holding that a one-year

limitation      period    in    a     construction       contract     barred        the

plaintiff from bringing a claim, notwithstanding the ordinary

six-year statutory limitation for such actions under N.J.S.A.

2A:14-1), certif. denied, 101 N.J. 325 (1985); see also Weinroth

v. N.J. Mfrs. Ass'n Fire Ins. Co., 117 N.J.L. 436, 438-39 (E. &

A. 1936); Ribeira & Lourenco Concrete Constr., Inc. v. Jackson

Health   Care    Assocs.,      231    N.J.    Super.    16,   22-23   (App.      Div.



                                         14                                  A-4329-12T3
1989); Staehle v. Am. Employers' Ins. Co., 103 N.J. Super. 152,

154 (App. Div. 1968).

      Plaintiff refines his argument on this point, urging us to

judicially         impose      a      prohibition             on    agreements      shortening

limitation     periods         specifically         in        employment    contracts.           He

points to various legislative enactments in New Jersey, such as

the   LAD,     the    Conscientious           Employee             Protection    Act      (CEPA),

N.J.S.A. 34:19-1 to -14, and the Family Leave Act, N.J.S.A.

34:11B-1      to    -16,    as     evidence        of     a    strong    public       policy     to

protect workers' rights.

      This     argument asks us to intrude upon the prerogative of

the   Legislature.             None    of    these       enactments        impose     a    ban   on

contractually reducing a limitation period.                             The Legislature is

presumably         aware    of     the      long-established            case    law       allowing

contractual reductions that are reasonable and not contrary to

public policy, where not statutorily prohibited.                                 Yet, it has

not acted.

      Our role is to determine whether, considering the factual

circumstances        in    a     particular        case,       the    shortened     limitation

period   is    reasonable          and      does    not       contravene       public     policy.

Indeed, our Legislature has set different limitation periods for

different employee actions.                  See, e.g., the one-year statute of

limitations for CEPA claims, N.J.S.A. 34:19-5, as opposed to the




                                               15                                         A-4329-12T3
two-year limitation period for LAD lawsuits.                        And, as we will

further discuss, under a choice-of-remedies provision in the LAD,

N.J.S.A. 10:5-13, a party claiming discrimination in violation

of the LAD may choose to pursue an administrative remedy rather

than filing a lawsuit, in which case he or she must file a claim

with    the    Division    on     Civil     Rights    (DCR)      within        180   days.

Similarly, the Legislature has set a limitation period under the

New Jersey Employer-Employee Relations Act, N.J.S.A. 34:13A-1 to

-43, of six months from the alleged unfair practice.                             N.J.S.A.

34:13A-5.4(c).

       These    limitation      periods        are   traditionally         legislative

determinations.         The judicial role involves such functions as

interpretation of which statutory limitation provision applies

in     cases   of    ambiguity,     the     development       and    application         of

principles and doctrines to avoid injustices, such as equitable

tolling,       the    discovery     rule,      estoppel,    and      the       continuing

violation doctrine, as well as a determination of whether any

contractual         modification    is    reasonable       and      not    contrary      to

public policy.

       We   therefore     decline    plaintiff's       invitation         to    impose    a

judicial ban on the shortening of limitation periods for claims

by workers against their employers.                   Plaintiff's arguments in

this regard are better directed to the Legislature, which could




                                          16                                     A-4329-12T3
consider, with input from all stakeholders and affected parties,

the advisability of such legislation, and which could consider

alternatives, such as specifying certain types of actions in

which to impose a ban or partial ban on modifications of the

statutory time frames, the procedures required to effectuate any

such contractual modifications, and other related issues.                     Our

role is to decide the case before us and determine whether an

injustice     has    been   caused    by   an    allegedly     unconscionable

contract.

      Plaintiff further argues that because the statutory right

being waived eliminates any forum in which to seek a remedy if

the   contractual     limitation     period     is   missed,   this    case    is

materially distinguishable from those allowing waivers of jury

trials and requiring arbitration proceedings in lieu of actions

in the courts.       In the latter circumstances, plaintiff argues,

although a worker is limited as to the forum, he or she is

nevertheless left with a forum in which a fair adjudication can

be made.

      This   argument   presupposes     that    an   individual   signing      an

agreement is not aware of what is in it and therefore would not

know when his or her filing deadline would occur.                     We reject

this premise.       An individual who signs an agreement is assumed

to have read it and understood its legal effect.               Rudbart, supra,




                                      17                                A-4329-12T3
127 N.J. at 352-53 (citing Fivey v. Penn R.R., 67 N.J.L. 627,

632 (E. & A. 1902)).              This principle applies even if a language

barrier is asserted.           See Morales v. Sun Constructors, Inc., 541

F.3d   218,      221-23    (3d     Cir.       2008)          (rejecting       the       plaintiff's

contention       that     he   should         not       be    bound      by   an        arbitration

agreement because it was drafted in English and he spoke only

Spanish).

       Plaintiff        also      contends           that        allowing           a        six-month

limitation       period    for     a    LAD    lawsuit           would    tend          to    have   an

adverse impact on the alternate route legislatively allowed in

the LAD by N.J.S.A. 10:5-13.                   Under that section, an aggrieved

party can make a choice to pursue a civil action in court or

proceed     by    way     of   seeking         a        remedy      in   an    administrative

proceeding in the DCR.                 The LAD also contains an exclusivity

provision,       which    provides       that       an       administrative             proceeding,

once commenced and while pending, shall be exclusive, and the

final determination in that proceeding shall exclude any other

action based on the same grievance of the individual concerned.

N.J.S.A. 10:5-27.

       Plaintiff         argues        that        an        individual        who           files     a

discrimination          complaint       with        the       DCR   within       the         180     day

statutory limitation period might be lulled into thinking there

is no hurry to see how the investigation and discussions in that




                                               18                                             A-4329-12T3
proceeding     are        progressing,        because,    if     later    deemed

unsatisfactory, he or she can always withdraw the claim in the

DCR action and have it dismissed, after which he or she can

proceed with a lawsuit.         Doing so might well be within two years,

but not within six months of the discriminatory act complained

of.

       We reject this argument.          Again, it assumes that a claimant

is aware of the two-year statutory limitation period, but is not

aware of the shortened period to which he or she contractually

agreed.    The parties are charged with knowledge of the law and

with   knowledge     of    contracts     into    which    they   have    entered.

Further, we do not see how the statutory scheme allowing the

election of remedies would be impaired.                  It is the claimant's

choice whether to pursue either the more streamlined and less

expensive administrative route, or a civil lawsuit.

       Plaintiff also contends that language in the "Applicant's

Statement,"    which       states   that,        if   employed,     plaintiff's

"employment does not constitute any form of contract, implied or

expressed," either creates a fatal ambiguity in the contract or

should serve to estop defendant from attempting to enforce the

provision limiting the time within which a claim must be filed.

According to plaintiff, defendant cannot assert a contractual

right with respect to the shortened limitation provision while




                                         19                              A-4329-12T3
at the same time denying, within the text of the employment

application, that the document constitutes a contract.

      We find this argument unpersuasive.                   The text creates no

ambiguity.       It is clear from the full text of the sentence in

which the "does not constitute any form of contract" language

appears that the language pertains only to the fact that, if

hired, plaintiff's "employment will be terminable at will either

by [him] or [defendant] upon notice of one party to the other."

These are two distinct terms, each dealing with a different

subject.     One defines the applicant's at-will status if hired.

The other addresses the time frame within which the applicant,

if hired, must initiate claims or lawsuits against his employer.

      We   now     address   the   relevant      unconscionability           factors.

Contracts of adhesion "invariably evidence some characteristics

of   procedural     unconscionability,"         and   therefore         "require[]     a

careful       fact-sensitive           examination          into         substantive

unconscionability."          Muhammad,       supra,   189    N.J.       at   16.     In

Muhammad,    the    Court    further    noted    that    where      a    contract     of

adhesion    involves    "overwhelming"        procedural         unconscionability,

those procedural factors must be analyzed further in a "sliding

scale"     analysis    along    with    the     degree      of    any    substantive

unconscionability.       Id. at 16 n.3.




                                        20                                    A-4329-12T3
    The level of procedural unconscionability in this case is

by no means overwhelming.            The disputed contract provision was

not buried in a large volume of documents.                 It was contained in

a two-page application and set forth very conspicuously in bold

oversized     print    and        capital     lettering,     just      above    the

applicant's      signature    line.         The   terminology    was   clear    and

uncomplicated.      Plaintiff was put under no pressure to complete

and sign the application quickly.                 Indeed, he was permitted to

take it home and complete it at his leisure, which he did, with

the assistance of a friend who was more fluent than he in the

English language.

    In     the   context     of    arbitration      provisions   in    employment

contracts, the United States Supreme Court has held that "[m]ere

inequality in bargaining power . . . is not a sufficient reason

to hold that [such] agreements are never enforceable in the

employment context."         Gilmer v. Interstate/Johnson Lane Corp.,

500 U.S. 20, 33, 111 S. Ct. 1647, 1655, 114 L. Ed. 2d 26, 41

(1991).     Referring to Gilmer, we have held that "the Supreme

Court obviously contemplated avoidance of the arbitration clause

only upon circumstances substantially more egregious than the

ordinary economic pressure faced by every employee who needs the

job."     Young v. Prudential Ins. Co. of Am., Inc., 297 N.J. Super.

605, 621 (App. Div. 1997).          And, our Supreme Court has observed:




                                        21                                A-4329-12T3
            Virtually every court that has considered
            the    adhesive     effect     of    arbitration
            provisions in employment applications or
            employment    agreements     has    upheld    the
            arbitration    provision    contained    therein
            despite potentially unequal bargaining power
            between   employer     and    employee.       See
            generally,   Rosenberg     v.   Merrill    Lynch,
            Pierce, Fenner & Smith, Inc., 170 F.3d 1, 17
            (1st Cir. 1999) (holding that absent showing
            of fraud or oppressive conduct, arbitration
            of plaintiff's age and gender discrimination
            claims pursuant to arbitration provision
            contained in Form U-4 was permissible);
            Seus v. John Nuveen & Co., 146 F.3d 175, 184
            (3d Cir. 1998), cert. denied, 525 U.S. 1139,
            119 S. Ct. 1028, 143 L. Ed. 2d 38 (1999)
            (rejecting    argument    that    disparity    in
            bargaining power resulted in contract of
            adhesion); Koveleskie [v. SBC Capital Mkts.,
            Inc., 167 F.3d 361, 367 (7th Cir. 1999)]
            (upholding employee's agreement to arbitrate
            Title VII claim, noting that state law does
            not   void   contracts     based    on   unequal
            bargaining power or contracts made on "take-
            it-or-leave-it" basis); Nur v. KFC, USA,
            Inc., 142 F. Supp. 2d 48, 51-52 (D.D.C. 2001)
            (rejecting     argument     that     arbitration
            agreement      contained       in     employment
            application     of    restaurant's     assistant
            manager   was    unenforceable     contract    of
            adhesion, where agreement was not unduly
            burdensome,    did not favor one party over
            other,    and      provided     that    American
            Arbitration     Association      and    [Federal
            Arbitration Act] rules apply to arbitration
            proceeding).

            [Martindale, supra, 173 N.J. at 90-91.]

    Overall,        the    level      of    procedural     unconscionability

attendant    to     the   formation    of    this   contract     was   minimal.

Therefore,    the    focus   must     be    on   whether   the   agreement    is




                                       22                              A-4329-12T3
substantively unconscionable.                    Because this is a contract of

adhesion,      the    four       factors       identified        in    Rudbart       must     be

considered, namely, "[(1)] the subject matter of the contract,

[(2)]    the   parties'          relative      bargaining     positions,           [(3)]     the

degree of economic compulsion motivating the 'adhering' party,

and    [(4)]    the     public      interests          affected       by    the    contract."

Muhammad, supra, 189 N.J. at 15-16 (quoting Rudbart, supra, 127

N.J. at 356).         Weighing and balancing these factors leads us to

the    conclusion      that       the    six-month        limitation        period    is     not

substantively unconscionable.

       As we have pointed out, in the absence of a statute to the

contrary,      parties       are    free    to      contractually          limit    the     time

within    which       an     action      may      be    brought,       as    long     as     the

contractual      time       is    reasonable        and   does     not      violate    public

policy.     Although no New Jersey court has addressed this issue

in the employment context in a published opinion, courts that

have    considered         the   issue     have     given    widespread           approval   to

shortened periods comparable to the one in this case.                                 Indeed,

the New York intermediate appellate court has approved the very

same waiver provision that is involved in this case, which was

contained in defendant's employment application completed by an

employee in New York.              Hunt v. Raymour & Flanigan, 963 N.Y.S.2d

722, 723-24 (App. Div. 2013).




                                               23                                     A-4329-12T3
      In cases decided by various federal and state courts, a

distinction is made between federal claims that are subject to

the   exclusive     jurisdiction         and        exhaustion   of    administrative

remedies requirements through the United States Equal Employment

Opportunity Commission (EEOC), and non-EEOC claims.                            "Congress

created    the    EEOC    and    established         an   administrative       procedure

under     Title   VII      in    order    to        provide   the     EEOC     with    'an

opportunity to settle disputes through conference, conciliation,

and persuasion before the aggrieved party [is] permitted to file

a lawsuit.'"       Lewis v. Harper Hosp., 241 F. Supp.2d 769, 771

(E.D. Mich. 2002) (quoting Occidental Life Ins. Co. of Cal. v.

EEOC, 432 U.S. 355, 368, 97 S. Ct. 2447, 2455, 53 L. Ed. 2d 402,

412 (1977)).      A claimant must first file a charge with the EEOC,

which then investigates the charge to determine whether there is

reasonable cause to believe that the charge is true.                             Id. at

771-72.     The EEOC is authorized to bring a civil action against

the   responsible        party   or,     if    it    finds    reasonable      cause    but

chooses not to bring an action, it issues a "right to sue"

letter authorizing the individual claimant to sue.                       Ibid.        If no

reasonable cause determination is made within 180 days after

filing with the EEOC, the claimant may request a right to sue

letter, and upon its issuance, file suit directly.                           Id. at 772.

While the case is pending in the EEOC, and during the 180 day




                                              24                                A-4329-12T3
period, at the least, the EEOC has exclusive jurisdiction, and

the individual is not authorized to file suit in his or her own

behalf.   Ibid.

    Therefore, for federal claims which are subject to initial

filing    with    the   EEOC,    courts       have    held    that   a   six-month

contractual      limitation     period    to   file    suit    is    unenforceable

because it would have the effect of abrogating a claimant's

ability to bring a claim and would therefore be contrary to the

public policy established for federal claims subject to EEOC

jurisdiction.      Ibid.; see also Salisbury v. Art Van Furniture,

938 F. Supp. 435, 437-38 (W.D. Mich. 1996) ("With respect to the

[Americans with Disabilities Act, (ADA)] claim, the contractual

limitation certainly effected a 'practical abrogation' of the

right to file an ADA claim and is, therefore unreasonable[.]");

Scott v. Guardsmark Sec., 874 F. Supp. 117, 121 (D.S.C. 1995)

(rejecting a six-month contractual limitation period in an ADA

case because it was "abhorrent to public policy," "required an

employee to waive his or her federal protections," and "reduce[d]

the time limits to assert a federal cause of action").

    However, where administrative exhaustion requirements are

not present, as in the case before us, courts have upheld six-

month contractual provisions in employment contracts, deeming

them reasonable.        See, e.g., Thurman v. DaimlerChrysler, Inc.,




                                         25                               A-4329-12T3
397 F.3d 352, 358-59 (6th Cir. 2004) (affirming dismissal of the

plaintiff's state law claims and 42 U.S.C.A. §1981 claim based

on six-month limitation provision in employment application);

Soltani v. W. & S. Life Ins. Co., 258 F.3d 1038, 1044 (9th Cir.

2001) (upholding six-month contractual limitation period to bar

wrongful discharge claim); Taylor v. W. & S. Life Ins. Co., 966

F.2d     1188,     1206      (7th     Cir.        1992)    (six-month       contractual

limitation period enforced as to non-EEOC claims); Myers v. W. &

S. Life Ins. Co., 849 F.2d 259 (6th Cir. 1988) (upholding the

six-month        limitation     period        in      employment       contract         for

plaintiff's        disability       discrimination         claim    based    on      state

statute); Ray v. FedEx Corporate Servs., Inc., 668 F. Supp.2d

1063,    1065-69     (W.D.    Tenn.       2009)    (six-month      limitation      period

upheld      with      respect        to      the     plaintiff's        federal         age

discrimination claim); Badgett v. Fed. Express Corp., 378 F.

Supp.2d     613,      626     (M.D.N.C.           2005)    (concluding       that       the

plaintiff's state law claims and non-EEOC federal claims were

subject     to     dismissal        as     time-bared       under     the    six-month

contractual limitation period agreed to by the parties); Clark v.

DaimlerChrysler Corp., 706 N.W.2d 471, 474 n.2 (Mich. App. 2005)

(upholding       six-month     contract       limitation      period       that    barred

plaintiff's age discrimination claim based on state statute for

which    the     statutory    limitation          period   was     three    years,      and




                                             26                                   A-4329-12T3
commenting:           "While we have much sympathy for the dissent's

argument that there ought to be limitations on an employer's

ability     to        contractually        modify    periods        of     limitations,

especially       in     the    civil      rights    context,       we     believe       such

limitations ought to be imposed by the Legislature, not the

judiciary."), appeal denied, 713 N.W.2d 779 (2006); Lewis, supra,

241 F.Supp.2d at 769, 771-74 (E.D. Mich. 2002) (enforcing six-

month limitation period in employment contract as to non-EEOC

claims, but not as to EEOC claims); Timko v. Oakwood Custom

Coating,     Inc.,       625    N.W.2d      101,    105-06       (Mich.     App.        2001)

(affirming       summary       judgment     dismissing       the    plaintiff's          age

discrimination         claim    based      on    state    law,     holding    that       the

contractual six-month limitation period was reasonable).

       We   agree      with    the   reasoning      and   conclusions        reached      in

these opinions.         Plaintiff has cited no published opinion to the

contrary.       As we have pointed out, six months is the statutory

time    frame     for     filing     an    administrative         claim     for     a    LAD

violation.       Such a filing represents a choice of remedies under

New Jersey's scheme.            Because the Legislature has set six months

for this alternative route, we are hard pressed to judicially

declare that six months is an unreasonable, conscience-shocking

time period in which a claimant must choose the other available

route, a civil lawsuit.              And, following the distinction we have




                                            27                                    A-4329-12T3
highlighted between federal claims subject to EEOC jurisdiction

and exhaustion of those administrative remedies before a private

suit can be filed, and other non-EEOC claims (such as the one

before     us)     with    no        such     prerequisite,         we     find     nothing

unreasonable or contrary to New Jersey's public policy about a

six-month limitation for state law claims such as those brought

by plaintiff in this case.

     Applying the four Rudbart factors, we conclude, as to the

first, that the subject matter of the contract in dispute, the

shortened        limitation period, is a valid and legitimate subject

to   be    included       in    an      employment           contract,    and     has    been

judicially       recognized       as    such.           As    to   the    second    factor,

although defendant was in a superior bargaining position, it did

not hold a monopoly on jobs of the type for which plaintiff was

applying.         Plaintiff      was     under     no    compulsion       to    pursue    the

application if he was dissatisfied with any of the terms of

employment, including the shortened limitation period.                             Rudbart,

supra, 127 N.J. at 356-57.                  This analysis also applies to the

third     factor,    the       degree    of    economic         compulsion      motivating

plaintiff.        As we have pointed out, anyone who needs a job is

under     some    level    of    economic        compulsion,        but    plaintiff      has

presented no evidence to suggest that his circumstances were any




                                              28                                   A-4329-12T3
more egregious than those faced by any other applicant seeking

employment.       Young, supra, 297 N.J. Super. at 621.

     As to the fourth factor, the public interests affected by

the contract, for the reasons we have stated, we find no adverse

effect on public policy or public interests.                    We recognize that

New Jersey has a strong public policy, as evidenced by various

statutory     enactments       protecting       the   rights     of     workers    and

prohibiting discrimination in the workplace.                   That public policy

is   not     harmed      by    a   contractually           agreed-upon     shortened

limitation provision within which a worker can make a claim

against     his    or    her   employer        if   that    shortened     period    is

reasonable.        For the reasons we have discussed, six months is

reasonable        in    the    circumstances        presented.          Accordingly,

plaintiff's suit against defendant was time-barred by the six

month provision.

                                          C.

     We summarily reject plaintiff's alternative argument that

the application he filed for his promotion to driver constituted

a novation that overrode and voided the initial application.                        To

constitute a novation, a new contact must exhibit a clear and

definite intention on the part of all parties that its purpose

is to supersede and eliminate a prior contact.                        Sixteenth Ward

Bldg. & Loan Ass'n, supra, 125 N.J. Eq. at 342-43.                       A novation




                                          29                                A-4329-12T3
is never presumed.     Ibid.    The burden of proving a novation lies

with the party alleging it.       Id. at 345.

    Applying the Brill standard, the motion record is devoid of

any evidence that would support a "clear and definite" showing

that the parties intended to extinguish the provisions of the

initial application.    The initial application was for a new hire,

specifying certain terms of employment if hired, including his

or her at-will status and the shortened limitation period.                  The

second   application   was     merely   a   means   of    obtaining   further

information from plaintiff relevant to the new position to which

he was being promoted, a driver.            It sought information about

his driving experience and driving record.               His employment with

defendant was uninterrupted by this promotion.

    Under these circumstances, the record is sufficiently "one-

sided" that a reasonable fact-finder could not find by clear and

definite evidence that both parties intended to create a new

contract.   See Brill, supra, 142 N.J. at 529, 532.

    Affirmed.




                                    30                                A-4329-12T3
