Court Rejects Late Attempt to Compel Employee Allegedly Called N-word to Confidential Arbitration in Racial Discrimination Case

McOmber McOmber & Luber, P.C. represents James Miller, a former employee at XPO Logistics who filed a complaint in January 2020 against XPO for race discrimination and retaliation in violation of the New Jersey Law Against Discrimination (LAD). Mr. Miller, who is African American, served as an Operation Supervisor and was an exceptional employee who won numerous awards.  As alleged in the complaint, about seven months into his employment, Mr. Miller was the target of egregious racism. He was called the N-word and threatened with being shot in the face.  When he was unlawfully terminated, his supervisor bragged, “I finally got rid of Black Boy.” 

Led by Partner Charles J. Kocher, Mr. Miller filed a LAD complaint against XPO in New Jersey Superior Court in January 2020. The parties engaged in significant discovery, and had numerous conference calls, in-person meetings, and e-mail exchanges.  More than one year after the complaint was filed, XPO for the first time made an arbitration request in January 2021 that it produced to Plaintiff in August 2020.  

Superior Court Judge Anthony Pugliese rejected this request. Using the seven-factor analysis in Cole v. Jersey City Med. Ctr., Judge Pugliese found XPO waited too long to ask for arbitration.  “I look at the delay.  It’s been nine months…[t]he extent of discovery and the amount of time that’s been spent by [defense counsel] in terms of litigation…I find that to be fairly extensive.”  

Judge Pugliese also concluded that XPO’s arbitration agreement could not be enforced against Mr. Miller because his dispute claiming discrimination under the LAD did not fall within the scope of XPO’s arbitration agreement.  Judge Pugliese stated it “doesn’t have that magic language about statutory rights such as the LAD.”  “[A] waiver of a statutory right, like an LAD right, has to be clear and unmistakable.  Waiver language won’t be read expansively.”   

McOmber McOmber & Luber, P.C. is a full-service firm with experience in fighting against discrimination, hostile work environment and retaliation in the workplace.  If you feel you have been unfairly treated in the workplace, our lawyers are here to help you. Please call our office in Red Bank, New Jersey at 732-842-6500, our Newark office at 973-878-9040, or our Marlton office at 856-985-9800 to find out more.   

 

View Order