Hilil Nickerson v. Brink's Incorporated

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1985-24

HILIL NICKERSON,

Plaintiff-Respondent,

v.

BRINK'S INCORPORATED,

LISA JOHNSON and LISA

DUFFY,

Defendants-Appellants,

and

CHRIS GHIRTSOS,

Defendant.

___________________________

Argued September 16, 2025 – Decided November 24, 2025

Before Judges Currier, Smith, and Jablonski.

On appeal from the Superior Court of New Jersey,

Law Division, Essex County, Docket No. L-7307-24.

Michael J. Nacchio argued the cause for appellants

(Ogletree, Deakins, Nash, Smoak & Stewart, PC,

attorneys; Jocelyn A. Merced, Erin N. Donegan and

Michael J. Nacchio, on the briefs).

Thomas A. McKinney argued the cause for respondent

(Castronovo & McKinney, LLC, attorneys; Thomas A.

McKinney, of counsel and on the brief; Anais V.

Paccione, on the brief).

PER CURIAM

Defendant Brink's Incorporated (Brink's) appeals from a Law Division

order denying its application to dismiss plaintiff's Law Against Discrimination

complaint and to compel arbitration. Because plaintiff's employment

agreement is clear and unambiguous that all employment claims must be

submitted to mandatory arbitration, we reverse.

I.

A.

Shortly before beginning his employment with Brink's and as part of

Brink's on-boarding process, plaintiff Hilil Nickerson electronically signed a

"Mutual Arbitration Agreement" (MAA). That document described the

mandatory and binding arbitration procedure implemented to resolve disputes

between employees and Brink's including, but not limited to

[c]laims involving harassment, discrimination, or

retaliation of all types; claims under Title VII of the

Civil Rights Act of 1964, 40 U.S.C. § 1981, the

Americans with Disabilities Act, and the Age

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Discrimination in Employment Act; claims for

worker's compensation retaliation; leave-related

claims, including any alleged violation of the Family

and Medical Leave Act; claims related to wages or

meal or rest periods, including claims under the Equal

Pay Act or Fair Labor Standards Act; claims related to

the timeliness of wage payment or paycheck

requirements; claims for incentive compensation,

benefits, or the denial thereof, including claims

brought pursuant to the Employee Retirement Income

Security Act (after exhaustion of plan remedies) or for

compensation of any type; claims regarding any

background check or drug test or any document or

process related to either; tort claims, including libel,

slander, false imprisonment, misrepresentation,

negligence or negligent hiring, training, supervision,

or retention; claims for breach of contract or policy;

and the alleged violation of any other federal, state, or

local statute, regulation or common law.

The MAA only excluded

(i) claims for state insurance benefits . . . (ii) claims

for which this Agreement would be invalid as a matter

of federal law or state law that is not preempted by

federal law; and (iii) actions to enforce this

Agreement, compel arbitration, or enforce or vacate an

arbitrator's award under this Agreement as to which

the parties agree and stipulate that such actions are

covered by Sections 2-16 of the Federal Arbitration

Act (FAA), 9 U.S.C. § 2-16, and not any other section

of the FAA or state law . . . .

In a section specifically labeled "Option to Opt Out of Agreement,"

plaintiff had the "right to opt out of this [MAA] within [thirty] days from the

date [plaintiff] sign[ed] this Agreement." This section also provided

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instructions as to how to do so. The clause also noted plaintiff's "employment

status w[ould] not be affected if [he] decided to opt out of this Agreement."

At the conclusion of the document, a segment titled "Understanding and

Acknowledgement" appeared. In it, plaintiff "warrant[ed] and agree[d]" that

he

[r]ead and underst[ood] this Agreement and [] had the

opportunity to consult with an attorney of

[his]choosing regarding the effect of this Agreement

to the extent [he] deem[ed] necessary. By signing this

Agreement, [he] acknowledge[d] that [he was]

knowingly and voluntarily waiving the right to file a

lawsuit in court relating to [his] employment with

Brink's and related entities and persons, as well as the

right to resolve disputes in a proceeding before a

judge or jury, except as described above.

The following language concluded the document, in capital letters:

BY SIGNING THIS AGREEMENT, YOU WAIVE

YOUR RIGHT TO A JURY TRIAL AND INSTEAD

AGREE THAT ANY CLAIMS WILL BE DECIDED

IN THE ARBITRATION FORUM.

This agreement was later modified and reflected changes not pertinent to

this appeal. Plaintiff signed the revised agreement as well.

B.

During his employment, plaintiff discovered that supervisors and

coworkers—including his then manager, defendant Ghirtsos—exchanged

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messages in a group chat which contained explicit, derogatory, sexist, and

racist remarks, including specific references to plaintiff. Some messages also

specifically referenced female coworkers. Plaintiff, an African American,

alleges that he and other coworkers were the subject of these comments,

including remarks made directly by Chris Ghirtsos. When plaintiff learned of

the messages, he lodged complaints with defendants Lisa Duffy and Lisa

Johnson, both human resources directors. He asserts they neither addressed

his concerns nor disciplined those involved.

In a two-count complaint filed under the New Jersey Law Against

Discrimination (NJ LAD), N.J.S.A. 10:5-1, to -50, plaintiff alleged Brink's

subjected him to a racially hostile work environment (count one) and accused

individual defendants Ghirtsos, Duffy, and Johnson of aiding and abetting the

creation of that atmosphere (count two). See N.J.S.A. 10:5-12(e).

In response, Brink's moved to dismiss the complaint and to compel

arbitration based on the MAA. In a brief oral decision, the trial court

summarily denied the motion and noted its concerns about the plaintiff's

knowing and voluntary waiver of his right to disposition of this matter before

the court and whether the agreement was properly explained to him. The court

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also noted the MAA "doesn't indicate what, in fact, claims are covered by this

particular agreement."

Brink's appealed.

II.

We review a trial court's denial of a motion to dismiss de novo. AC

Ocean Walk, LLC v. Am. Guarantee & Liab. Ins. Co., 256 N.J. 294, 310

(2024). Because the enforceability of an arbitration agreement is a question of

law, we also review de novo a trial court's order to grant or to deny a motion to

compel arbitration. Skuse v. Pfizer, Inc., 244 N.J. 30, 46 (2020).

Consequently, we owe "no special deference" to the legal determinations of the

trial court. AC Ocean Walk, 256 N.J. at 310. To that end, when considering

orders to compel arbitration, we acknowledge the "strong preference to enforce

arbitration agreements . . . ." Lahoud v. Anthony & Sylvan Corp., 481 N.J.

Super. 29, 40 (App. Div. 2025) (quoting Hirsch v. Amper Fin. Servs., LLC,

215 N.J. 174, 186 (2013)). "'[T]he affirmative policy of this State, both

legislative and judicial, favors arbitration as a mechanism of resolving

disputes.'" Flanzman v. Jenny Craig, Inc., 244 N.J. 119, 133 (2020) (quoting

Martindale v. Sandvik, Inc., 173 N.J. 76, 92 (2002)). "Because of the favored

status afforded to arbitration, '[a]n agreement to arbitrate should be read

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liberally in favor of arbitration.'" Garfinkel v. Morristown Obstetrics &

Gynecology Assocs., P.A., 168 N.J. 124, 132 (2001) (quoting Marchak v.

Claridge Commons, Inc., 134 N.J. 275, 282 (1993)).

Here, the trial court found there were "substantial issues of operative

fact[s]," including that the agreement did not specify the claims it covered , the

arbitration agreement was not explained to plaintiff, and plaintiff did not

understand what he was signing. We disagree.

Following our de novo review, we conclude the MAA was both clear

and unambiguous, was entered into with mutual assent, and is enforceable in

light of these fundamental principles that govern arbitration agreements.

A.

Arbitration agreements are contracts. Lahoud, 481 N.J. Super. at 41.

Therefore, we must "place arbitration agreements on an equal footing with

other contracts . . . and enforce them according to their terms." Flanzman, 244

N.J. at 132 (quoting AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339

(2011)). To effect this goal, "[a]s with other contractual provisions, courts

look to the plain language the parties used in the arbitration provision."

Medford Twp. Sch. Dist. v. Schneider Elect. Bldgs. Ams., Inc., 459 N.J. Super.

1, 8 (App. Div. 2019) (citations omitted). "A basic tenet of contractual

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interpretation is that contract terms should be given their plain and ordinary

meaning." Kernahan v. Home Warranty Adm'r of Fla., Inc., 236 N.J. 301, 321

(2019) (citing Roach v. BM Motoring, LLC, 228 N.J. 163, 174 (2017)).

"An arbitration agreement must be the result of the parties' mutual

assent, according to customary principles of state contract law." Skuse, 244

N.J. at 48 (citing Atalese v. U.S. Legal Servs. Group, L.P., 219 N.J. 430, 442

(2014)). "Thus, 'there must be a meeting of the minds for an agreement to

exist before enforcement is considered.'" Ibid. (quoting Kernahan, 236 N.J. at

319). "Mutual assent requires that the parties have an understanding of the

terms to which they have agreed." Atalese, 219 N.J. at 442. "By its very

nature, an agreement to arbitrate involves a waiver of a party's right to have

[their] claims and defenses litigated in court." NAACP of Camden Cnty. E. v.

Foulke Mgmt. Corp., 421 N.J. Super. 404, 425 (App. Div. 2011). "An

effective waiver requires a party to have full knowledge of [their] legal rights

and intent to surrender those rights." Knorr v. Smeal,178 N.J. 169, 177 (2003)

(citing W. Jersey Title & Guar. Co. v. Indus. Tr. Co., 27 N.J. 144, 153 (1958)).

"'[A] party who enters into a contract in writing, without any fraud or

imposition being practiced upon [that party] is conclusively presumed to

understand and assent to its terms and legal effect.'" Kernahan, 236 N.J. at 321

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(quoting Rudbart v. N. Jersey Dist. Water Supply Comm'n, 127 N.J. 344, 353

(1992)). Lack of knowledge of the law cannot be used to nullify an arbitration

clause's clear and explicit language. Cf. Arafa v. Health Express Corp., 243

N.J. 147, 165 (2020) ("'[A]greements to arbitrate [can] be invalidated by

'generally applicable contract defenses, such as fraud, duress or

unconscionability,' but not by defenses that apply only to arbitration or that

derive their meaning from the fact that an agreement to arbitrate is at issue.'")

(quoting Concepcion, 563 U.S. at 339)

"No particular form of words is necessary to accomplish a clear and

unambiguous waiver of rights." Atalese, 219 N.J. at 444. Because "[n]o

magical language is required to accomplish a waiver of rights in an arbitration

agreement", a specific reference to the NJ LAD or any other statutory claims is

not required to render the parties' agreement as enforceable or not. See

Morgan v. Sanford Brown Inst., 225 N.J. 289, 309 (2016); see also Barr v.

Bishop Rosen & Co., 442 N.J. Super. 599, 606 (App. Div. 2015) ("[A]n

arbitration clause need not identify 'the specific constitutional or statutory

right[s] guaranteeing a citizen access to the courts' that are being waived . . . ."

(quoting Atalese, 219 N.J. at 447)). All that it must do is "convey that parties

are giving up their right to bring their claims in court or have a jury resolve

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their dispute." Barr, 442 N.J. Super. at 606. The mechanism to accomplish

this need only be expressed in "'some general and sufficiently broad way. . . .'"

Barr, 442 N.J. Super. at 606 (quoting Atalese, 219 N.J. at 447).

B.

In both form and substance, we conclude the MAA is effective because

it is clear and passes jurisprudential muster.

The MAA is a stand-alone document that existed apart from the other

on-boarding documents considered and executed by plaintiff before he began

his employment with Brink's. The multi-page document is comprehensive,

but, despite its length, its language is plain and direct. Near the top of the

MAA, and set apart by bold face type, plaintiff and Brink's "voluntarily

waive[d] all rights to a trial in court before a judge or jury on all claims

covered by this agreement."

Those claims are specifically described on the second page of the MAA

in a section premised by this bold-faced and capitalized title: "CLAIMS

SUBJECT TO ARBITRATION." Under this section, the parties mutually

"agree to submit all legally cognizable claims between [them] to binding

arbitration." "Claims covered by this Agreement include, but are not limited

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to, claims involving harassment, discrimination, or retaliation of all types. . . ."

(emphasis added).

The document includes detailed information about the "ARBITRATION

PROCEDURE." The prospective employee also has the ability to opt out of

the MAA under the titled "OPTION TO OPT OUT OF THE AGREEMENT."

The MAA concludes with plaintiff's assertion, through his signature, that

he "warrant[ed] that [he] read and underst[ood] this Agreement and had the

opportunity to consult with an attorney of [his] choosing regarding the effect

of this Agreement to the extent [he] deem[ed] necessary."

In that same paragraph, plaintiff made an affirmative declaration that

[he] "acknowledge[d] that [he was] knowingly and voluntarily [waiving] the

right to file a lawsuit in court relating to [his] employment with Brink's and

related entities and person, as well as the right to resolve disputes in a

proceeding before a judge or jury, except as described above."

Finally, at the conclusion of the document, plaintiff unambiguously

acknowledged, produced in all capital letters, "BY SIGNING THIS

AGREEMENT, YOU WAIVE YOUR RIGHT TO THE JURY TRIAL AND

INSTEAD AGREE THAT ALL CLAIMS WILL BE DECIDED IN THE

ARBITRATION FORUM."

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The plain language of the MAA clearly demonstrates its intent to

establish a mutually beneficial relationship through alternative dispute

resolution, and plaintiff—as a prospective employee—was sufficiently

informed of its purpose and scope, given the opportunity to consult an attorney

before signing, and allowed to opt out without affecting his employment

status.

We reverse the trial court's decision and remand for the entry of an order

dismissing plaintiff's complaint and ordering the matter to be submitted to

arbitration. We do not retain jurisdiction.

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