NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2830-14T2

GRANT W. MORGAN,

Plaintiff-Respondent,

v.

RAYMOURS FURNITURE COMPANY, INC.,

PATRICK HYNES, and WENDY

GREENWALD,

Defendants-Appellants.

________________________________________________

Argued November 17, 2015 – Decided

Before Judges Fisher, Espinosa and 

Rothstadt.

On appeal from the Superior Court of New 

Jersey, Law Division, Burlington County,

Docket No. L-2257-14.

James G. Fannon argued the cause for 

appellants (Law Office of James G. Fannon, 

and Edward T. Groh, attorneys; Mr. Fannon 

and Mr. Groh, on the brief).

Alan H. Schorr argued the cause for 

respondent (Alan H. Schorr & Associates, 

P.C., attorneys; Mr. Schorr, on the brief).

Andrew Dwyer argued the cause for amicus 

curiae National Employment Lawyers 

Association of New Jersey (The Dwyer Law 

Firm, L.L.C., attorneys; Mr. Dwyer, of 

counsel and on the brief).

APPROVED FOR PUBLICATION

January 7, 2016

APPELLATE DIVISION

January 7, 2016
2 A-2830-14T2

William D. Wright argued the cause for 

amicus curiae New Jersey Association for 

Justice (The Law Office of William Wright 

LLC, attorneys; Mr. Wright, on the brief).

The opinion of the court was delivered by

FISHER, P.J.A.D.

In this appeal, we consider whether plaintiff is bound to 

arbitrate his claims against his former employer. Because the 

employee handbook, which contains an arbitration clause and a 

purported waiver of plaintiff's right to sue, clearly conveyed 

that its "rules, regulations, procedures and benefits . . . are 

not promissory or contractual in nature and are subject to 

change by the company," we agree with the motion judge that 

plaintiff did not clearly and unambiguously waive his right to 

sue defendants in court.

On September 19, 2014, plaintiff Grant W. Morgan commenced 

this action against his former employer, defendant Raymours 

Furniture Company, and two Raymours representatives, alleging a 

violation of the Law Against Discrimination, N.J.S.A. 10:5-1 to 

-49, wrongful termination, and other similar causes of action. 

After unsuccessfully moving for a change of venue — an 

application that might fairly suggest a waiver of the right to 
3 A-2830-14T2

arbitrate1 — defendants moved to compel arbitration. That motion 

was denied as well, and defendants appeal, as is their right 

despite the interlocutory nature of the order in question. See

R. 2:2-3(a).

In appealing, defendants present the following arguments:

I. THE TRIAL COURT ERRED BY FAILING TO 

ENFORCE THE PARTIES' AGREEMENT TO ARBITRATE, 

WHICH SATISFIES ALL OF THE CUSTOMARY 

CONTRACT FORMATION ELEMENTS.

A. The FAA[2] Requires Application 

of Ordinary State-Law Principles 

Governing The Formation Of Contracts in Determining Whether Parties Have Agreed to Arbitrate.

B. Raymour & Flanigan Made A 

Clear, Unmistakable And Unambiguous Offer of [Its Employee 

Arbitration Program (EAP)].

C. Plaintiff Accepted The EAP on 

Multiple Occasions in Multiple 

Ways.

D. Sufficient Consideration Supported The EAP.

E. Plaintiff's Claims Are Within 

The Scope Of The EAP.

II. THE TRIAL COURT ERRED BY FOCUSING 

EXCLUSIVELY ON PLAINTIFF'S SIGNATURE ON THE 

2013 COMMISSION AGREEMENT AND BY HOLDING 

 

1 Such an argument was not raised on appeal and we, therefore, 

offer no further view on the impact of that circumstance on the 

arbitration issue presented.

2 Federal Arbitration Act, 9 U.S.C.A. §§ 1-16.
4 A-2830-14T2

THAT IT WAS INSUFFICIENT TO MANIFEST HIS 

ASSENT TO THE EAP.

III. THE TRIAL COURT ERRED BY DISREGARDING 

THE U.S. SUPREME COURT'S SEVERABILITY DOCTRINE AND DENYING ENFORCEMENT OF THE EAP 

BASED UPON ITS ASSESSMENT OF THE SURROUNDING 

HANDBOOK.

IV. THE TRIAL COURT ERRED BECAUSE IT APPLIED 

HEIGHTENED, ARBITRATION SPECIFIC STANDARDS 

TO THE EAP.

V. IN THE EVENT THE COURT FINDS GENUINE 

DISPUTES OF MATERIAL FACT REMAIN, DEFENDANTS 

REQUEST THAT THE ACTION BE REMANDED WITH 

INSTRUCTIONS TO CONDUCT AN EVIDENTIARY 

HEARING (Not Raised Below).

In light of well-established legal principles governing the 

availability of arbitration in this and similar settings,

reiterated in a number of recent cases, see, e.g., Atalese v. 

U.S. Legal Servs. Grp., L.P., 219 N.J. 430, 444-45 (2014), cert. 

denied, __ U.S. __, 135 S. Ct. 2804, 192 L. Ed. 2d 847 (2015); 

Barr v. Bishop Rosen & Co., __ N.J. Super. __, __ (App. Div. 

2015) (slip op. at 6-9),

3 we find insufficient merit in 

defendants' arguments to warrant further discussion in a written 

opinion. R. 2:11-3(e)(1)(E). We add only the following brief 

comments.

The circumstances at hand are relatively simple. Plaintiff 

contends that upon complaining of age discrimination in the 

 

3 These are but a few and only two of the most recent; our 

jurisprudence suffers no shortage of case law on this subject.
5 A-2830-14T2

workplace, defendants confronted him with an ultimatum — that he 

either sign a stand-alone arbitration agreement or defendants 

would terminate his employment. Plaintiff refused to sign the 

agreement and defendants carried out their threat. Plaintiff was 

terminated and this suit followed.

Despite plaintiff's refusal to sign an arbitration 

agreement, defendants moved to compel arbitration on the basis 

of the company handbook. Although plaintiff disputes that he 

actually read or acknowledged receipt of the handbook, he 

consented to the trial court's consideration of these issues on 

the assumption that he acknowledged receipt of the handbook and 

EAP in August 2011, February 2012, and April 20134; like the 

trial judge, we find these circumstances unavailing.

For example, the handbook is prefaced with the employer's 

disclaimer as to the nature of the parties' undertaking:

Nothing in this Handbook or any other 

Company practice or communication or 

document, including benefit plan descripttions, creates a promise of continued 

employment, [an] employment contract, term 

 

4 Plaintiff allegedly signed in December 2013 another document 

relating to the commission rate by which he would be 

compensated; in signing, plaintiff expressed that he "agree[d]" 

disputes would be subject to the EAP. We agree with the trial 

judge that this document, if actually signed, would only give 

rise to the possibility that a dispute about commissions — not 

discrimination or wrongful termination claims — would be 

arbitrable.
6 A-2830-14T2

or obligation of any kind on the part of the 

Company.

[Emphasis added.]

In addition, when electronically acknowledging receipt of this 

documentation, an employee signifies only that he or she 

"received a copy of the Associate Handbook" (emphasis added), 

and, further, that he or she

understand[s] that the rules, regulations, 

procedures and benefits contained therein 

are not promissory or contractual in nature 

and are subject to change by the company.

[Emphasis added.]

These disclaimers were likely included because of Woolley v. 

Hoffman-LaRoche, Inc., 99 N.J. 284, 309, modified, 101 N.J. 10 

(1985), where the Court determined that company manuals may 

create implied contractual rights and duties, but that employers 

— to avoid this possibility — could include a prominent 

disclaimer of the contractual nature of a handbook.

Here, the employer would seek both the benefit of its 

disclaimer in most instances, while insisting that the handbook 

was contractual when it suits its purposes — a proposition to be 

rejected if for no other reason than it runs counter to the 

ancient English proverb: "wolde ye bothe eate your cake, and 

haue your cake?" John Heywood, Dialogue of Proverbs (1546), as 

well as its corollary, which may have originated with Aesop,
7 A-2830-14T2

"sauce for the goose is sauce for the gander." Of course, our 

decisions are not governed by clichés, but these in particular 

can be found at the root of the court's equity jurisdiction. 

For example, estoppel principles preclude a party from 

disavowing a previous position if repudiation violates the 

demands of justice and good conscience. Carlsen v. Masters, 

Mates & Pilots Pension Plan Tr., 80 N.J. 334, 339 (1979); 

Connell v. Am. Funding, Ltd., 231 N.J. Super. 409, 416 (Ch. Div. 

1987), aff’d o.b., 231 N.J. Super. 202 (App. Div. 1989). In 

this setting, it is simply inequitable for an employer to assert 

that, during its dealings with its employee, its written rules 

and regulations were not contractual and then argue, through 

reference to the same materials, that the employee contracted 

away a particular right. See also 2 Pomeroy's Equity 

Jurisprudence § 385, at 52 (5th ed. 1941) (recognizing "that 

whatever be the nature of the controversy between two definite 

parties, and whatever be the nature of the remedy demanded, the 

court will not confer its equitable relief upon the party 

seeking its interposition and aid, unless he had acknowledged 

and conceded, or will admit and provide for, all the equitable 

rights, claims and demands justly belonging to the adversary 
8 A-2830-14T2

party, and growing out of or necessarily involved in the subject 

matter of the controversy").5

In any event, our Supreme Court has made clear that an 

employee in this circumstance must "clearly and unambiguously" 

agree to a waiver of the right to sue. Atalese, supra, 219 N.J.

at 443. By inserting such a waiver provision in a company 

handbook, which, at the time, the employer insisted was not 

"promissory or contractual," an employer cannot expect — and a 

court, in good conscience, will not conclude — that the employee 

clearly and unambiguously agreed to waive the valued right to 

sue. And, by the same token, in obtaining the employee's 

signature on a rider, which stated only that the employee 

"received" and "underst[ood]" the contents of the company 

handbook or rules and regulations, the employer cannot fairly 

contend the employee "agreed" to a waiver of the right to sue 

that might be found within those materials. Leodori v. CIGNA 

Corp., 175 N.J. 293, 307, cert. denied, 540 U.S. 938, 124 S. Ct.

74, 157 L. Ed. 2d 250 (2003); Barr, supra, __ N.J. Super. at __ 

n.5 (slip op. at 13 n.5). These principles preclude enforcement 

of the arbitration provision and waiver of the right to sue 

 

5 Make no mistake, although the dispute about the parties' 

transactions evoke questions of law, defendants seek a mandatory 

injunction — a stay of this lawsuit and an order compelling of 

arbitration — that triggers the court's equity jurisdiction.
9 A-2830-14T2

contained within Raymours' company handbook and related 

documents.6

We also reject defendants' forceful argument that such a

determination conflicts with federal law. We disagree on the 

strength of our Supreme Court's own prior rulings, cited above, 

regarding the relationship between federal and state law in such 

matters. We also note that one week after we heard argument in 

this case, a federal court of appeals came to the same 

conclusion that we now reach in nearly identical circumstances. 

Lorenzo v. Prime Commc'ns, L.P., __ F.3d __ (4th Cir. 2015).

We lastly recognize that had plaintiff executed the standalone arbitration agreement presented to him when a rift formed 

in the parties' relationship, a different outcome would likely 

 

6 In Rodriguez v. Raymours Furniture Co., 436 N.J. Super. 305 

(App. Div. 2014), the plaintiff's execution of a job application 

— and its incorporated "agreement" to limit to six months the 

applicant's time for filing any future lawsuit against Raymours

— was found enforceable. The Supreme Court granted 

certification, 220 N.J. 100 (2014), heard oral argument on

December 1, 2015, and has yet to file an opinion. Although our 

colleagues' published opinion in Rodriguez was filed eight 

months before this appeal was filed, neither plaintiff nor 

defendants — nor able amici — referred to Rodriguez in any of 

their written or oral submissions. Consequently, we invited and 

have received the parties' letters explaining their thoughts on

Rodriguez. We agree with plaintiff that the many distinguishing 

features between this case and Rodriguez demonstrate its 

inapplicability here. We also take — with more than a modicum 

of salt — defendants' sudden contention that Rodriguez is 

supportive of the arguments they pose here.
10 A-2830-14T2

have followed. To that we only need say, "if my grandmother had 

wheels, she'd be a bicycle."

Affirmed.