2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-12-2009

Nuzzi v. Aupaircare Inc

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1210

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Recommended Citation

"Nuzzi v. Aupaircare Inc" (2009). 2009 Decisions. Paper 831.

http://digitalcommons.law.villanova.edu/thirdcircuit_2009/831
The Honorable Jane A. Restani, Chief Judge, United States Court of International 1

Trade, sitting by designation.

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 08-1210

_____________

NANCY NUZZI,

 Appellant

 

 v.

AUPAIRCARE, INC.; FRAN KURZ

On Appeal from the United States District Court

for the District of New Jersey

No. 07-cv-03968

District Judge: Honorable Joel A. Pisano

Submitted Pursuant to Third Circuit LAR 34.1(a)

November 21, 2008

Before: BARRY and CHAGARES, Circuit Judges and RESTANI, Chief Judge1

(Filed : August 12, 2009)

OPINION OF THE COURT
2

CHAGARES, Circuit Judge.

Nancy Nuzzi appeals from a grant of summary judgment in favor of defendants

Aupaircare Inc., and Fran Kurz, Aupaircare, Inc.’s Mid-Atlantic Regional Manager

(collectively, “APC”). For the reasons set forth below, we will vacate and remand.

I.

Because we write only for the parties, we will only address the facts that are

relevant to our analysis. Nuzzi, a New Jersey resident, was employed in New Jersey by

APC, a California corporation, from 2004 until 2007. In February of 2007, she took

maternity leave and planned to return to work that May. However, that April, she was

terminated by APC, which claimed that she had been the subject of customer complaints. 

Nuzzi, believing this reason was false and was only a pretext to fire her because of her

pregnancy, sued APC for violations of the New Jersey Family Leave Act (“NJFLA”),

N.J.S.A. § 34:11B-1 to -16, and the New Jersey Law Against Discrimination (“NJLAD”),

N.J.S.A. § 10:5-1 to - 42.

The central issue in the case surrounds the employment agreement between Nuzzi

and APC. The agreement contains a choice of law, arbitration, and choice of forum

provision, which states:

This Agreement shall be governed and construed in accordance with the laws of

the State of California and any claims or disputes arising out of, or related to this

Agreement will be determined by binding arbitration upon the petition of either

party in San Francisco, California.
3

Appendix (App.) 84. 

The District Court determined that the choice of law provision in the contract was

valid and applicable, and therefore granted summary judgment in favor of APC. It did

not reach the arbitration or forum selection clause issues. In finding that the choice of

law provision governed Nuzzi’s claims, the District Court emphasized that it was

“unambiguous,” that Nuzzi “freely entered into” the agreement, and that “[t]he choice of

law provision was clearly stated.” App. 12. The Court also explained that “the provision

was set forth in the last section of the contract[], right before the signature lines; thus, the

provision was not lost in the other terms of the agreement and it would be impossible for

[Nuzzi] to not have seen it.” Id. In addition, the Court found that the provision did not

violate New Jersey public policy because, if Nuzzi were successful in her claim,

California’s Fair Employment and Housing Act would give Nuzzi the same remedies that

she could potentially receive under New Jersey law. Nuzzi then appealed to this Court.

II.

The District Court had jurisdiction pursuant to 28 U.S.C. § 1332. We have

jurisdiction pursuant to 28 U.S.C. § 1291. This Court reviews the grant of summary

judgment de novo. Gonzalez v. AMR, 549 F.3d 219, 223 (3d Cir. 2008). “Summary

judgment is appropriate only where there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law.” Id. (citation omitted). See Fed.

R. Civ. P. 56(c). When analyzing a summary judgment claim, “we must view the facts in
4

the light most favorable to the non-moving party, and draw all reasonable inferences

therefrom in that party’s favor.” New Jersey Transit Corp. v. Harsco Corp., 497 F.3d

323, 326 (3d Cir. 2007) (citation omitted).

III. 

“In evaluating whether a contractual choice-of-law clause is enforceable, federal

courts sitting in diversity apply the choice-of-law rules of the forum state . . . .” Homa v.

Am. Express Co., 558 F.3d 225, 227 (3d Cir. 2009) (citations omitted). Generally, “when

parties to a contract have agreed to be governed by the laws of a particular state, New

Jersey courts will uphold the contractual choice if it does not violate New Jersey’s public

policy.” Id. (citation, quotation marks, and emphasis omitted). Nuzzi contends that the

choice of law provision in her agreement with APC should not govern for two reasons: 

first, because it applies only to contract claims arising out of the agreement, not to her

statutory tort claims under the NJLAD and NJFLA, and second, because enforcing it

would violate New Jersey’s public policy.

While the New Jersey Supreme Court has not spoken directly to the issue of

whether statutory claims under the NJLAD or NJFLA would be encompassed by the type

of choice of law provision at issue here, its decision in Garfinkel v. Morristown

Obstetrics & Gynecology Assoc., 773 A.2d 665 (N.J. 2001), provides guidance as to how

it might interpret such a clause. In Garfinkel, the Court decided that a mandatory

arbitration clause in an employment contract, which stated that the employee agreed to
5

arbitrate “any controversy or claim arising out of, or relating to, this Agreement or the

breach thereof” did not include the employee’s claims under the NJLAD. Id. at 668, 672. 

In so finding, the Court explained that the provision “suggests that the parties intended to

arbitrate only those disputes involving a contract term, a condition of employment, or

some other element of the contract itself” rather than the employee’s statutory claim. Id.

at 672. 

Perhaps more importantly, the Court also stated that “the policies that support the

[NJ]LAD and the rights it confers on aggrieved employees are essential to eradicating

discrimination in the workplace,” and that New Jersey courts should “not assume that

employees intend to waive [their rights under the NJLAD] unless their agreements so

provide in unambiguous terms.” Id. A waiver of statutory claims requires that an

employee “at least . . . agree[] to arbitrate all statutory claims arising out of the

employment relationship or its termination” and “reflect the employee’s general

understanding of the type of claims included in the waiver, e.g., workplace discrimination

claims.” Id.

Based on the reasoning of Garfinkel, we find that the language in Nuzzi’s contract

with APC is not broad enough to encompass her statutory claims under the NJLAD or

NJFLA, and thus the choice of law clause should not apply to them. Just as in Garfinkel,

the language in Nuzzi’s contract “suggests that the parties intended” for the provision to

apply “only [to] those disputes involving a contract term, a condition of employment, or
6

some other element of the contract itself,” and not to her statutory discrimination claims. 

773 A.2d at 672. Furthermore, we assume that New Jersey would follow the Garfinkel

rationale in the choice of law context as well as the arbitration context, and require an

employee to waive her statutory rights unambiguously in order to enforce a choice of law

provision against her. Such a waiver did not occur here. The choice of forum provision

in Nuzzi’s agreement – which provides that San Francisco, California, should be the

forum – should not be applied for the same reason. 

Garfinkel is directly on point with regard to the arbitration question. The language

in Nuzzi’s contract is almost identical to the language in the Garfinkel contract, and just

as the arbitration provision in Garfinkel was not broad enough to encompass the

employee’s statutory claim, the language in Nuzzi’s contract with APC is insufficient to

compel her to arbitrate her claims under the NJLAD or NJFLA. Compare App. 84

(stating that Nuzzi agreed to arbitrate “any claims or disputes arising out of, or related to

this Agreement”) with 773 A.2d at 668, 672 (invalidating arbitration provision where

employee agreed to arbitrate “any controversy or claim arising out of, or relating to, this

Agreement or the breach thereof”). Therefore, the choice of law, choice of forum, and

arbitration clauses in Nuzzi’s agreement with APC do not include her NJLAD or NJFLA

claims under New Jersey law.

IV. 

Accordingly, the judgment of the District Court will be vacated, and we will
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remand to the District Court for further proceedings consistent with this opinion.