NOT FOR PUBLICATION WITHOUT THE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,

v.

RAYMOURS FURNITURE COMPANY, INC.,

a corporation, t/a RAYMOUR & 

FLANIGAN,

Defendant-Respondent.

_________________________________

Argued March 18, 2014 – Decided

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 

APPROVED FOR PUBLICATION

June 19, 2014

APPELLATE DIVISION

June 19, 2014
2 A-4329-12T3

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 
3 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.
4 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,
5 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 helper2 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 

driver, 3 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.
6 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.
7 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 
8 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.
9 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 
10 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 unconscionability. 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 
11 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 
12 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.
13 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 
14 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. 
15 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 
16 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 
17 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,
18 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 
19 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 
20 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. 
21 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:
22 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 "takeit-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 
23 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). 
24 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 
25 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 sixmonth contractual provisions in employment contracts, deeming 

them reasonable. See, e.g., Thurman v. DaimlerChrysler, Inc.,
26 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 
27 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 sixmonth 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 
28 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 
29 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 
30 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 "onesided" 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.