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United States Court of Appeals for the Third Circuit
December 8, 1988, Argued ; June 2, 1989, Filed
[*222] OPINION OF THE COURT
SLOVITER, Circuit Judge
The district court certified for interlocutory appeal under 28 U.S.C. § 1292(b) (1982) its order denying the defendants' motion to compel arbitration of the claim of plaintiff, [**2] a former employee, alleging that his termination violated the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq. (1982 & Supp. 1986). This court is presented for the first time with the question whether an ADEA suit may be maintained despite a provision in an employment contract to arbitrate disputes arising out of the employment. We conclude, after applying the test of arbitrability devised by the Supreme Court in Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 107 S. Ct. 2332, 96 L. Ed. 2d 185 (1987), and Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 105 S. Ct. 3346, 87 L. Ed. 2d 444 (1985), that Congress did not intend that the right under the ADEA to a judicial forum for protection against age discrimination would be subject to displacement.
The plaintiff in this case, James J. Nicholson, was hired by defendant CPC International, Inc. (CPC) as an attorney in 1957. He rose steadily through the corporate ranks and was appointed Vice-President for Corporate Financial Services in 1981. In January 1986, apparently in anticipation of a possible takeover [**3] move, Nicholson and the approximately thirty other corporate officers of CPC in domestic locations were presented with an executive employment agreement, which Nicholson signed. The agreement defined, inter alia, compensation, benefits, job title, and termination procedures [*223] and benefits, 1 and contained an arbitration clause providing that:
Any dispute or controversy arising under or in connection with this Agreement shall be settled exclusively by arbitration, conducted before a panel of three arbitrators in New York City in accordance with the rules of the American Arbitration Association then in effect. Judgment may be entered on the arbitrators' award in any court having jurisdiction. The expense of such arbitration shall be borne by the Company.
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877 F.2d 221 *; 1989 U.S. App. LEXIS 7617 **; 49 Fair Empl. Prac. Cas. (BNA) 1678; 50 Empl. Prac. Dec. (CCH) P39,073
JAMES J. NICHOLSON v. CPC INTERNATIONAL INC., a corporation, and JAMES R. EISZNER, Appellants
Subsequent History: [**1] As Corrected, June 7, 1989.
Prior History: On Appeal from the United States District Court for the District of New Jersey, D.C. Civil No. 88-0045.
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