Bruce v. Adams and Reese, LLP

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

RANDI MARIE BRUCE, )

)

Plaintiff, )

)

v. ) Case No. 3:24-cv-00875

) Judge Aleta A. Trauger

ADAMS AND REESE, LLP, )

)

Defendant. )

MEMORANDUM

In her First Amended Complaint (“FAC”) (Doc. No. 18), plaintiff Randi Bruce sets forth

claims against her former employer, defendant Adams and Reese, LLP (“A&R”), under the

Americans with Disabilities Act (“ADA”) for failure to accommodate a disability and failure to

engage in the interactive process and for “retaliation, hostile work environment, and discriminatory

discharge” (id. at 40). She also sets forth a claim under Title VII of the Civil Rights Act of 1964

(“Title VII”), for “sexual harassment and hostile work environment” that, the plaintiff alleges,

“resulted in [her] termination.” (Id. ¶ 407).1 Now before the court are two motions filed by A&R:

(1) its Second Motion to Dismiss (Doc. No. 21), which is actually a motion for partial dismissal,

as it challenges only the viability of the plaintiff’s Title VII claim under Rule 12(b)(6) of the

Federal Rules of Civil Procedure; and (2) its Motion to Compel Arbitration (Doc. No. 13) of the

ADA claims.

It is clear from the parties’ briefing that Bruce and A&R executed an otherwise valid and

1 The plaintiff also brings her sexual harassment claim under the Tennessee Human Rights

Act (“THRA”), but discrimination and retaliation claims under the THRA are reviewed under the

same standards as claims brought under Title VII. Bailey v. USF Holland, Inc., 526 F.3d 880, 885

n.1 (6th Cir. 2008). The court therefore analyzes the claims solely under federal law.

binding Arbitration Agreement in May 2022, when Bruce began working for A&R, in which the

parties mutually agreed to “submit any and all claims that may arise between A&R and [Bruce]

that cannot be resolved internally to binding arbitration,” subject to certain exceptions not at issue

here. (Doc. No. 14-1 at 3, 6.) It is also undisputed that (1) the recently enacted Ending Forced

Arbitration of Sexual Assault and Sexual Harassment Act of 2021, 9 U.S.C. §§ 401, 402, is

implicated by the plaintiff’s sexual harassment claim; and (2) if the sexual harassment claim is

subject to dismissal under Rule 12(b)(6), the remaining claims under the ADA will be subject to

arbitration.2 What is disputed here is whether the FAC states a colorable claim for sexual

harassment under Title VII and, if that claim is not dismissed, whether the entire case must be tried

in this court or whether, alternatively, the ADA claims must be severed and referred to arbitration.

As set forth herein, the court finds that the FAC states a colorable claim for sexual

harassment but fails to state a claim for retaliation under Title VII. Because the FAC states a claim

for sexual harassment that withstands the defendant’s Rule 12(b) motion, under 9 U.S.C. § 402(a),

the Arbitration Agreement is unenforceable as to the entire case.

I. MOTION TO DISMISS

A. Standard of Review

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint. RMI

Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir. 1996). Such a motion is

2 Several courts have held that only plausibly pleaded sexual harassment claims implicate

the EFAA and that, if such claims are subject to dismissal under Rule 12(b)(6), any remaining

claims will be subject to an otherwise enforceable arbitration agreement. See, e.g., Scoggins v.

Menard, Inc., No. 2:24-CV-00377, 2024 WL 3860464, at *7 (S.D. Ohio Aug. 19, 2024)

(“Plaintiff’s claim is pled such that it would overcome a 12(b)(6) motion to dismiss, which places

the claim within the substantive purview of the EFAA.”); Yost v. Everyrealm, Inc., 657 F. Supp.

3d 563, 588 (S.D.N.Y. 2023) (holding that, “with the SAC’s sexual harassment claims having been

dismissed as implausible, the EFAA no longer has any bearing on this litigation”).

properly granted if the plaintiff has “fail[ed] to state a claim upon which relief can be granted.”

Fed. R. Civ. P. 12(b)(6); Marvaso v. Sanchez, 971 F.3d 599, 605 (6th Cir. 2020). To survive a

motion to dismiss, a complaint must allege facts that, if accepted as true, are sufficient to state a

claim for relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–57

(2007); see also Fed. R. Civ. P. 8(a)(2). A complaint has “facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly,

550 U.S. at 556). The complaint need not contain “detailed factual allegations,” but it must contain

more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.”

Twombly, 550 U.S. at 555 (2007). A complaint that “tenders ‘naked assertions’ devoid of ‘further

factual enhancement’” will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Twombly, 550 U.S. at 557).

In ruling on a motion to dismiss under Rule 12(b)(6), the court must “construe the

complaint in the light most favorable to the plaintiff, accept all well-pleaded factual allegations in

the complaint as true, and draw all reasonable inferences in favor of the plaintiff.” Courtright v.

City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016).

“[A] plaintiff generally need not plead the lack of affirmative defenses to state a valid

claim.” Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547 (6th Cir. 2012). Thus, when a defendant

raises an affirmative defense as a basis for dismissing a complaint (or a claim therein), the court,

in evaluating the affirmative defense, must “only look to the facts alleged in the plaintiff’s

complaint, albeit alongside the legal elements of the affirmative defense raised in the defendant’s

motion to dismiss.” Goins v. Saint Elizabeth Med. Ctr., 640 F. Supp. 3d 745, 751 (E.D. Ky. 2022)

(citing Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 613 (6th Cir. 2009)). “If the elements of an

affirmative defense are met by the factual allegations contained in the complaint, then the district

court may grant the motion to dismiss.” Id.; see also Kreipke v. Wayne State Univ., 807 F.3d 768,

784 (6th Cir. 2015) (“Where an affirmative defense appears ‘clearly on the face of the complaint,’

. . . a court may dismiss a complaint under Rule 12(b)(6) for failure to state a claim.”).

B. Factual and Procedural History

According to the Amended Complaint, the well pleaded allegations of which the court

accepts as true for purposes of the Motion to Dismiss, A&R is a law firm with an office in

Nashville, Tennessee, and Bruce was a paralegal at that office beginning in May 2022, when she

was recruited by A&R from another Nashville law firm where she was employed at the time. At

least two of the attorneys with whom she worked at the previous law firm were also recruited by

A&R and were apparently responsible for bringing Bruce on board as well. These attorneys were

Will Cheek and Rob Pinson. Although the plaintiff’s allegations regarding her history of abuse

and her attendant medical diagnoses are not relevant here and will not be discussed in great detail,

the plaintiff alleges that both Cheek and Pinson were aware of her history, diagnoses, and

disabilities before recruiting her to go work with them at A&R.

Bruce was interviewed at A&R on April 26, 2022. Both Pinson and A&R’s Office

Manager, Brooke Ponder, were present at that meeting. Bruce’s first day at A&R was May 16,

2022. Both Pinson and Cheek acted as her supervising attorneys while she was employed at A&R.

The plaintiff alleges that Pinson’s “harassing” behavior began prior to their move to A&R

and largely consisted of Pinson’s “pressuring” Bruce to accompany him on social outings. She

identifies several specific instances in 2019 when this occurred, while they were both still

employed at their previous law firm. She sometimes said “yes” but usually said “no” to these

invitations. Despite Bruce’s declining another such invitation on December 2, 2019, Pinson gave

her a $1,000 bonus from his personal finances on December 6, 2019. The invitations and the

pressure to accept them continued through March 2020, when Bruce was laid off temporarily due

to the COVID pandemic. Around the same time, Pinson made an inappropriate comment in

response to her telling him that she had been accepted at the Nashville School of Law.3

Even while she was absent from the firm for a year, Pinson reached out to Bruce several

times to say how much he missed her, and he “encourag[ed] her to start dating married men as if

suggesting himself,” but Bruce rejected these invitations. (Doc. No. 18 ¶ 311.) Shortly after Bruce

rejoined the firm in April 2021, Pinson started back pressuring her to attend social events with him

and asking her out for drinks; she usually declined. Despite her continuing to reject his invitations,

Pinson asked Bruce in October 2021 if she would be willing to leave the law firm and join him at

a different firm. In January 2022, she began a serious relationship with her future fiancé, and

Pinson was initially respectful. He gave her a $500 bonus from his personal finances and wrote

her an effusive thank you note at the end of January 2022.

On February 2, 2022, Pinson texted Bruce at 12:30 a.m. to wish her a happy birthday. When

she responded immediately with a “thank you,” he “asked her if she wanted him to come join her

at her house since she was awake.” (Id. ¶ 326.) She replied “no” immediately. (Id. ¶ 327.) Bruce

informed Will Cheek, whom she viewed as a mentor, about this comment. Cheek told her he had

observed Pinson say and do inappropriate things and that his behavior on the instance in question

was “not right.” (Id. ¶ 330.) All of these events took place before the plaintiff, Cheek, or Pinson

was employed by A&R.

Over the next few months, as Pinson transitioned to A&R from the previous law firm, he

was rarely in the office. Once the entire “team” to which Bruce belonged moved to A&R,

3 His response was, “All those handjobs [he] gave really paid off!” and telling her how

much his wrist hurt, apparently implying that she was accepted because of sexual favors he

provided to officials at the school that had accepted her. (Doc. No. 18 ¶ 309.)

presumably including Bruce herself, Pinson’s “presence in the office was even more rare.” (Id.

¶ 333.) But, the plaintiff says, “Mr. Pinson continued sexually harassing Ms. Bruce when he was

in the office.” (Id. ¶ 334.) The harassment “included Mr. Pinson making sexual comments and

jokes to and about Ms. Bruce, as well as making inappropriate comments about Ms. Bruce’s

appearance, clothing, and private life.” (Id. ¶ 335.) After his February 2, 2022 “proposition,” Bruce

became “more and more uncomfortable” with his behavior and “went out of her way to avoid

him.” (Id. ¶ 336.) By the fall of 2022, she “hardly spoke to Mr. Pinson unless he reached out to

her about a specific client or project.” (Id. ¶ 337.)

Bruce asserts that, unbeknownst to her, on Friday, September 30, 2022, Pinson reached out

to Brooke Ponder and Cheek to tell them he wanted Bruce to be terminated “because she had not

personally informed him that she would not be in her office that day.” (Id. ¶ 338.) Pinson then sent

her a text message on Sunday, October 2, 2022, stating that her actions on Friday, September 30,

2022 “had not helped things.” (Id. ¶ 339.) The plaintiff was confused and asked what he meant.

Pinson responded that Ponder had been searching for her on Friday morning and was concerned

because she did not know where Bruce was. Pinson told her that Ponder was “so troubled by this”

that she had involved the Director of Human Resources. (Id. ¶ 342.) Bruce, however, knew that

Ponder had been out of town on Friday. When she spoke with Ponder on October 3, 2022, trying

to understand what Pinson had been talking about, Ponder told her that Pinson had reached out to

her while she was out of town to ask where Bruce was and that Pinson was pushing for Bruce to

be terminated.4

4 In the context of pleading the facts supporting her ADA claims, the plaintiff alleges that,

around October 2, 2022, she was “informed that the firm considered her communication” regarding

her start times to be inadequate. (Doc. No. 18 ¶ 55.) That issue appeared to be resolved by the

plaintiff’s including Ponder on emails informing her team that she would be late on a particular

Bruce scheduled a meeting with Pinson on October 5, 2022. During this meeting, Pinson

denied saying anything about wanting to have her terminated, denied talking to Ponder or the HR

Director about her, and affirmed that he would “never try to get [her] fired.” (Id. ¶ 352.)

The plaintiff states that she was “convinced that complaining about her situation to Adam

and Reese Human Resources would lead to negative results and additional retaliation,” and she

felt she “had no choice but to resort back to accepting Mr. Pinson’s harassment to keep her job.”

(Id. ¶¶ 354, 355.) So, Bruce alleges, Pinson’s “inappropriate comments and jokes to and about”

her continued. (Id. ¶ 356.) When Pinson learned that Bruce had become engaged in December

2022, his “harassment started to include inappropriate comments related to the engagement and

Ms. Bruce’s relationship.” (Id. ¶ 357.) These comments “started occurring even in work-related

conversations” with Bruce and during team meetings. (Id. ¶¶ 358–59.) For example, Pinson would

say things like, “Let’s have Randi go down there in a short skirt.” (Id. ¶ 360.) When talking to her,

he would say “Hoe no” instead of “Oh no.” (Id. ¶ 361.) On April 19, 2023, he made “sexually

suggestive comments about how ‘hot’ it would be to see Ms. Bruce and another paralegal engaging

in sexual acts on his desk.” (Id. ¶ 362.)

As set forth in the FAC within the context of detailing the facts supporting Bruce’s ADA

claims, her employment with A&R was terminated on May 11, 2023.

Under the “Causes of Action” heading articulating the elements of her “sexual harassment

and hostile work environment” claim, the plaintiff asserts that, while working for A&R, she

experienced “persistent, ongoing, and continued” sexual harassment from Pinson, in the form of

“unwelcome verbal conduct of a sexual nature,” up until the day she was fired. (Id. ¶¶ 396–97.)

day, at least until late-March 2023, when the plaintiff began to have trouble with side effects related

to her medication. (Id. ¶¶ 59–63.)

She asserts that Pinson’s behavior “became aggressive enough to create a hostile work

environment”; that she reported her concerns to Cheek, her manager; that Cheek had observed

Pinson’s inappropriate actions and comments and had told Bruce that Pinson’s conduct was “not

right”; that Pinson also functioned as her direct supervisor; that A&R is vicariously liable for the

hostile work environment created by Pinson’s sexual harassment; and that the sexual harassment

“resulted in Ms. Bruce’s termination.” (Id. ¶¶ 399–407.) Regarding her termination, Bruce asserts

that, even if Pinson did not make the ultimate employment decision, he was “the driving force

behind her termination because he initiated the conversations with the Defendant about terminating

Ms. Bruce after she stopped acquiescing to his inappropriate requests and behaviors.” (Id. ¶ 408.)

The plaintiff filed her lawsuit in July 2024. According to documents attached to the original

Complaint, the plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity

Commission (“EEOC”), alleging disability discrimination and retaliation. (Doc. No. 1-1.)5 The

plaintiff received her Notice of Right to Sue from the EEOC around April 23, 2024 (Doc. No. 1-

2) and filed suit within 90 days thereafter.

The defendant responded to the filing of the original Complaint by filing both a Motion to

Dismiss the sexual harassment claim and a Motion to Compel Arbitration of the ADA claims. The

plaintiff filed the FAC and a notice indicating her belief that both of the defendant’s motions were

5 The Charge attached to the original Complaint does not reference a claim for sexual

harassment or contain any factual allegations that could be construed as giving rise to any type of

sexual harassment claim. According to the defendant, the plaintiff filed an Amended Charge (see

Doc. No. 27 at 2 n.1), but neither party filed the Amended Charge with the pleadings or in

connection with the pending motions. The court presumes, based on the defendant’s decision not

to seek dismissal of the sexual harassment claim altogether for failure to exhaust, that the Amended

Charge incorporates a sexual harassment claim based on a hostile work environment. However, as

discussed below, the defendant asserts in a footnote in its Memorandum in support of the Second

Motion to Dismiss that the plaintiff failed to exhaust any sexual harassment claim premised on

allegations that her termination was in quid pro quo or retaliation for refusing sexual overtures, as

distinct from her hostile work environment theory of recovery. (See Doc. No. 22 at 3 n.1.)

rendered moot by the filing of the amended pleading. After being notified by the court that only

the original Motion to Dismiss was mooted, the defendant filed the Second Motion to Dismiss,

supporting Memorandum of Law, and a Supplemental Memorandum in support of its Motion to

Compel Arbitration. (Doc. Nos. 21, 22, 23.) The plaintiff filed Responses in opposition to both

motions (Doc. Nos. 24, 25), and the defendant filed Reply briefs in further support of both motions

(Doc. Nos. 26, 27).

C. Sexual Harassment Claims Under Title VII

Title VII provides that “[i]t shall be an unlawful employment practice for an employer . . .

to discriminate against any individual . . . because of such individual’s . . . sex,” among other

protected characteristics. 42 U.S.C. 2000e-2(a)(1); see also Harris v. Forklift Sys., Inc., 510 U.S.

17, 21 (1993). This prohibition “includes requiring people to work in a discriminatorily hostile or

abusive environment.” Harris, 510 U.S. at 21 (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S.

57, 64 (1986)). Under this prohibition, courts broadly recognize two types of sexual harassment

claims: (1) a claim of harassment that creates an offensive or hostile environment, also known as

a hostile work environment claim; and (2) quid pro quo harassment, in which a supervisor demands

sexual favors as a condition for job benefits. Kauffman v. Allied Signal, Inc., Autolite Div., 970

F.2d 178, 182 (6th Cir. 1992); Brown v. RCO Eng’g Inc., No. 23-11371, 2024 WL 1019258, at *5

(E.D. Mich. Mar. 8, 2024).6 In addition, Title VII creates a cause of action for retaliation for

6 The Sixth Circuit has on occasion suggested that quid pro quo sexual harassment is no

longer approved terminology and, instead, that the two types of sexual harassment claims are (1)

a claim of harassment that results in a hostile work environment but does not result in a tangible

employment action and (2) a claim that does not necessarily allege severe or pervasive harassment

but does result in a tangible employment action. See, e.g., Bowman v. Shawnee State Univ., 220

F.3d 456, 461, 461 n.4 (6th Cir. 2000) (characterizing claims “where the harassment is not severe

or pervasive” as claims that “used to be referred to as quid pro quo sexual harassment”). The Sixth

Circuit, however, has continued to use the term “quid pro quo” as effective short-hand for claims

that involve a tangible employment action. See, e.g., Huang v. Ohio State Univ., 116 F.4th 541,

560 (6th Cir. 2024) (defining the elements of a quid pro quo sexual harassment claim as including

opposing illegal conduct, and the Sixth Circuit has held that opposing sexual harassment qualifies

as protected activity for purposes of a retaliation claim. See E.E.O.C. v. New Breed Logistics, 783

F.3d 1057, 1067 (6th Cir. 2015) (“If an employee demands that his/her supervisor stop engaging

in this unlawful practice—i.e., resists or confronts the supervisor’s unlawful harassment—the

opposition clause’s broad language confers protection to this conduct.”). “[T]he label affixed to

the claim is not dispositive; instead; the [court’s] focus should be on the substance of the plaintiff’s

allegations.” Stevens v. Saint Elizabeth Med. Ctr., Inc., 533 F. App’x 624, 628–29 (6th Cir. 2013)

The FAC purports to set forth only one claim of “Sexual Harassment and Hostile Work

Environment,” under which the plaintiff states that “she was consistently subject to unwelcome

verbal conduct of a sexual nature” by Pinson and that his conduct was “aggressive enough to create

a hostile work environment.” (FAC ¶¶ 396, 399.) Consequently, it appears that the plaintiff

intended to state a hostile work environment claim. However, she might also have intended to state

a quid pro quo harassment claim, or perhaps a retaliation claim, insofar as the plaintiff alleges that

Pinson’s sexual harassment “resulted in [her] termination” and that he was the “driving force

behind her termination because he initiated conversations with [Ponder] about terminating Ms.

Bruce after she stopped acquiescing to his inappropriate requests and behaviors.” (FAC ¶¶ 407–

08.) Regarding the plaintiff’s claim that the harassment “resulted in [her] termination,” A&R

states, in a footnote, that, “[t]o the extent Bruce argues that she is making sex-based claims other

than a hostile work environment claim, such claims must also be dismissed both because she did

not make such claims in her EEOC charges and because she has failed to allege any of the elements

a showing that submission to unwelcomed advances was an express or implied condition for

receiving job benefits or that the refusal to submit to those advances caused the harasser to take

adverse employment action against her (citing Bowman, 220 F.3d at 461)). Because the defendant

uses the term in this case, and the plaintiff imposes no objection, the court also uses it.

of such claims.” (Doc. No. 22 at 3 n.1 (citing Doc. No. 1-1).)

A&R affirmatively seeks dismissal of the hostile work environment claim on the basis that

Bruce fails to allege harassment that was sufficiently severe to alter the terms or conditions of her

employment or create an abusive working environment and fails to show that the alleged conduct

was unwelcome. It also asserts that the allegations in the FAC establish that A&R will be able to

establish an affirmative defense based on the rulings in Faragher v. City of Boca Raton, 524 U.S.

775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998) (the

“Faragher/Ellerth defense”). In another footnote, it asserts that the plaintiff’s allegations that

Pinson wanted her to be fired “cannot be used to support a hostile work environment claim, as

claims for discrete acts of discrimination such as termination cannot be used to support a hostile

work environment claim.” (Doc. No. 22 at 7 n.4 (citing Ogbonna-McGruder v. Austin Peay State

Univ., 91 F.4th 833, 840 (6th Cir. 2024)).)

The plaintiff’s Response directly addresses the defendant’s claims in support of the

dismissal of her hostile work environment claim. Regarding the defendant’s footnoted arguments,

she states only, “To the extent that Adams and Reese was attempting to broach additional issues

in footnotes, Plaintiff would seek an opportunity to respond to those issues in a separate brief

should the Court require it.” (Doc. No. 24 at 1–2.) However, she also argues that the defendant

cannot support a Faragher/Ellerth defense because the harassment “culminated in a tangible

employment action”—her termination—and she has adequately alleged that Pinson retaliated

against her by being the “driving force behind the employment action.” (Doc. No. 24 at 4.)

The defendant devotes two-thirds of its Reply to arguing that the plaintiff failed to

adequately exhaust or plead a quid pro quo harassment claim and then briefly reiterates its

arguments in support of dismissal of the hostile work environment claim.

1. Quid Pro Quo Sexual Harassment

While it is generally true that “substantive arguments are best not left to footnotes,” Bright

v. Brookdale Senior Living, Inc., No. 3:19-CV-00374, 2021 WL 6496799, at *16 n.6 (M.D. Tenn.

Mar. 12, 2021) (Campbell, J.), the court understands the point of the defendant’s footnote to be

that A&R does not actually construe the FAC as asserting such a quid pro quo claim, based on the

fact that neither the plaintiff’s Amended Charge nor the FAC actually sets forth the elements of

such a claim. The plaintiff did not address the footnoted assertion other than to state that, “[t]o the

extent that Adams and Reese was attempting to broach additional issues in footnotes, Plaintiff

would seek an opportunity to respond to those issues in a separate brief should the Court require

it.” (Doc. No. 24 at 1–2.) The plaintiff does not clarify whether she did or did not intend to state a

quid pro quo claim or whether she believes the FAC adequately articulates such a claim.7

For purposes of clarity, the court nonetheless feels compelled to address the question of

whether the FAC actually does, or was intended to, state a claim for quid pro quo sexual

harassment.8 Quid pro quo sexual harassment requires a showing of a tangible employment action.

To state a colorable quid pro quo claim, Bruce would need to allege facts that, if true, would

establish that:

7 The court will not address the defendant’s footnoted exhaustion argument, because

exhaustion is an affirmative defense that the defendants bears the burden of both pleading and

proving. Moore v. Coca-Cola Bottling Co. Consol., 113 F.4th 608, 622 (6th Cir. 2024). While a

defense based on exhaustion may be “susceptible to resolution on a motion to dismiss if a plaintiff

affirmatively pleads himself out of court,” the plaintiff had no obligation to respond to A&R’s

motion “with affirmative matter raising a triable issue of fact on an affirmative defense.” Rembisz

v. Lew, 590 F. App’x 501, 504 (6th Cir. 2014) (citing Jones v. Bock, 549 U.S. 199, 215 (2007)).

The plaintiff did not respond to the footnoted exhaustion issue, and the defendant, though it

arguably could have, did not produce for the court the plaintiff’s Amended Charge.

8 The court does not require additional briefing from the plaintiff to address this issue.

(1) [she] was a member of a protected class; (2) [Pinson] subjected her to unwanted

sexual advances; (3) these unwanted advances were because of her sex; (4)

“submission to the unwelcomed advances was an express or implied condition for

receiving job benefits,” or that [Bruce’s] refusal to submit to those advances caused

[Pinson] to take adverse employment action against her; and (5) [A&R] is

vicariously liable for [Pinson’s] actions.

Huang v. Ohio State Univ., 116 F.4th 541, 560 (6th Cir. 2024) (citing Bowman v. Shawnee State

Univ., 220 F.3d 456, 461, 461 n.5 (6th Cir. 2000)). In this case, the plaintiff does not allege that

Pinson made any “sexual advances” after the move to A&R. Instead, she alleges that he made

inappropriate sexual comments and jokes to and about her. (See FAC ¶¶ 335, 356–62.) The

plaintiff does not allege any facts suggesting that any of these comments constituted unwelcome

advances or that her submission to them was an express or implied condition of her receipt of any

job benefit.

The last alleged incident that could arguably be characterized as a sexual advance occurred

on February 2, 2022—before the move to A&R—when Pinson texted Bruce happy birthday after

midnight and, when she responded immediately, asked her if she wanted him to come over. She

said no. In other words, she did not submit to that unwelcome advance. Nor, however, can she

establish that there is a causal connection between that event and her termination from A&R more

than a year later. Three months after the proposition, Bruce moved to A&R (at Pinson’s request).

Another five months passed (during which the plaintiff alleges she rarely interacted with Pinson)

before Pinson allegedly complained to Ponder about not being able to reach Bruce on September

30, 2022, which the plaintiff learned about on October 2, 2022. After that incident, although the

plaintiff alleges that Pinson’s inappropriate comments continued, the next apparent adverse

employment event did not occur until March 2023—and it occurred because of Ms. Ponder, as the

plaintiff alleges in connection with her disability claim. (See FAC ¶¶ 62–97.)9 In the absence of

any additional evidence tying them together, the fact that more than eight months ensued between

Pinson’s February 2, 2022 proposition and his September 30, 2022 complaint eliminates the

possibility of drawing a causal connection between them.

The FAC, in short, does not expressly state a quid pro quo claim; nor does it allege facts

from which the court might infer the intention to state a quid pro quo claim. The defendant does

not expressly move to dismiss such a claim; the plaintiff does not expressly seek to defend the

existence of such a claim. Under these circumstances, the court finds that the FAC does not state

a claim based on quid pro quo sexual harassment and, moreover, that the plaintiff did not intend

to state such a claim.

2. Hostile Work Environment Claim

“[D]iscrimination based on sex” that “create[s] a hostile or abusive work environment” is

actionable under Title VII. Meritor, 477 U.S. at 66. “In the case of a harassing supervisor, the

employer is vicariously liable for the hostile work environment.” Doe v. City of Detroit, 3 F.4th

294, 301 (6th Cir. 2021).

At the motion-to-dismiss stage, a plaintiff is not required to plead facts establishing a prima

facie case, as would be required at the summary judgment stage under McDonnell Douglas v.

9 In this part of the FAC, the plaintiff exhaustively details one of the events giving rise to

her ADA claims. For purposes of the present Motion to Dismiss, it suffices to point out that the

plaintiff does not allege any events that took place from November 8, 2022, when she began

including Ponder on her communications about being late to work, until March 13, 2023, when

she began to oversleep as a result of her medications and, after arriving late to work nine days over

the course of two weeks, had an unscheduled meeting with Ponder, Cheek and Pinson on March

24, 2023. (FAC ¶¶ 60–65.) The plaintiff alleges that, during this meeting, Ponder was aggressive

and confrontational, told the plaintiff she deserved to be fired, berated the plaintiff when she

requested an accommodation, and caused the plaintiff to experience a panic attack. (Id. ¶¶ 70–88,

91–96.) Bruce also alleges that Pinson and Cheek voiced their support for her and her work product

during this meeting and that Cheek apologized to her for Ponder’s actions. (Id. ¶¶ 89–90, 97–99.)

Green, 411 U.S. 792 (1973). See Ogbonna-McGruder v. Austin Peay State Univ., 91 F.4th 833,

839 (6th Cir.), cert. denied, 144 S. Ct. 2689 (2024). “Instead, a plaintiff asserting a hostile work

environment claim must allege that her ‘workplace is permeated with discriminatory intimidation,

ridicule, and insult that is sufficiently severe and pervasive to alter the conditions of the victim’s

employment and create an abusive working environment.’” Id. (quoting Nat’l R.R. Passenger

Corp. v. Morgan, 536 U.S. 101, 116 (2002)). The alleged harassment must be both objectively and

subjectively severe and pervasive to be actionable. Id. at 841 (citation omitted). The plaintiff must

also allege that she is a member of a protected class and that “the harassment was based on [sex].”

Id. at 839 (quoting Phillips v. UAW Int’l, 854 F.3d 323, 327 (6th Cir. 2017)). The plaintiff,

however, is not required to allege “specific facts beyond those necessary to state [her] claim.”

Kinney v. McDonough, No. 21-1414, 2022 WL 223633, at *6 (6th Cir. Jan. 26, 2022) (citation

omitted).

In addition, “allegations of discrete acts of discrimination [sh]ould not be characterized as

part of the hostile work environment claim.” Ogbonna-McGruder, 91 F.4th at 840. This is because,

“under Title VII, a plaintiff may bring a claim alleging that either (1) an employer engaged in

‘discrete discriminatory acts’ such as ‘termination, failure to promote, denial of transfer, or refusal

to hire’; or (2) the employer’s ‘repeated conduct’ created a hostile work environment.” Id. (quoting

Morgan, 536 U.S. at 114–15). Thus, the Sixth Circuit has “consistently held that allegations of

discrete acts may be alleged as separate claims, and as such ‘cannot properly be characterized as

part of a continuing hostile work environment.’” Id. (quoting Sasse v. U.S. Dep’t of Labor, 409

F.3d 773, 783 (6th Cir. 2005)).

Setting aside the alleged events that occurred before the plaintiff began working for A&R

and that cannot, as a result, be attributed to A&R, the plaintiff alleges, as set forth above, that

Pinson was rarely in the office after they transitioned to A&R, that she “went out of her way to

avoid him” because his comments made her increasingly uncomfortable, and that, by the fall of

2022, she “hardly spoke to him.” (FAC ¶¶ 333–34, 336–37.) Despite the relative rarity of their

contact, Pinson “continued” to sexually harass Bruce when he was in the office. This harassment

consisted of sexual comments to and about her and inappropriate comments about her appearance,

clothing, and private life, including inappropriate comments related to her engagement and

relationship with her fiancé. Bruce provides three examples of inappropriate comments: (1)

Pinson’s saying, “Let’s have Randi [Bruce] go down there in a short skirt”; (2) his saying “Hoe

no” instead of “Oh no” when talking to her; and (3) his making a comment on April 19, 2023

“about how ‘hot’ it would be to see Bruce and another paralegal engaging in sexual acts on his

desk.” (Id. ¶¶ 360–62.)

The defendant argues that these allegations, even if accepted as true, do not show that the

alleged harassment was sufficiently severe or pervasive to “alter the conditions of [Bruce’s]

employment and create an abusive working environment.” Harris, 510 U.S. at 21. In responding

to this argument, the plaintiff points to her allegations of “almost four years of harassment that

culminated in her termination” and contends that the “continuous nature of the harassment is

enough” to permit the court to find that Pinson’s actions were “hostile.” (Doc. No. 24 at 3.) She

also points out that she and Pinson worked together at A&R for almost a year and that she alleges

that the unwanted comments continued until her termination. (Id.) She asserts that Pinson

“retaliated against her by working with Brooke Ponder to put her under increased scrutiny and

have her fired.” (Id.)

Although the case presents an extremely close call, the court finds that the plaintiff has

adequately pleaded a hostile work environment claim, for purposes of Rule 8 of the Federal Rules

of Civil Procedure and the standards articulated in Twombly and Iqbal. She is not required to allege

every instance of harassing conduct, and the three examples of inappropriate comments are

apparently intended to be just that: examples. She alleges that such comments were essentially

continuous for the period of time she was employed by A&R, whenever she interacted with Pinson,

continuing up until her termination. Although none of the conduct qualifies as severe, it was, at

least as alleged in the FAC, pervasive.10 When the facts are fleshed out through discovery, it may

well be that the alleged conduct was neither objectively nor subjectively sufficiently pervasive to

create a hostile working environment. For now, however, viewing the facts in the light most

favorable to the plaintiff and drawing all reasonable inferences in her favor, the court finds that

the FAC very marginally alleges that Pinson’s “‘repeated conduct’ created a hostile work

environment.” Ogbonna-McGruder, 91 F.4th at 840.11

As for the defendant’s argument that the plaintiff has failed to allege that the conduct was

“unwelcome,” the court is not persuaded. First, as previously noted, Bruce does not need to plead

every element of a prima facie case at this juncture. And second, she has, in fact, adequately

alleged that the conduct was unwelcome and that Pinson knew it was unwelcome. The comments

10 Insofar as the plaintiff continues to rely on events that occurred while she was still

employed at a different law firm, before moving to A&R, in support of her hostile work

environment claim, she provides no basis for attributing Pinson’s conduct during that time period

to A&R. While the court finds that the allegations regarding what happened after she began

working at A&R are sufficient to establish her claim, at this juncture, the plaintiff is on notice that,

to prove her claim, she will likely not be able to rely on events that predated the move, for purposes

of A&R’s liability.

11 The absence of more detailed allegations in the FAC of the allegedly harassing conduct

that occurred between May 2022 and May 2023 certainly suggests that the plaintiff lacks additional

evidence, particularly given the highly detailed nature of the allegations covering the allegedly

harassing conduct that took place between July 26, 2019 and March 31, 2020 and between May

25, 2021 and February 2, 2022 (all when the plaintiff was not employed by A&R), and given the

details set forth in the FAC concerning the defendant’s alleged conduct giving rise to the plaintiff’s

ADA claims that took place between October 2, 2022 and May 12, 2023. Again, however, in the

context of a motion to dismiss, the court must draw reasonable inferences in the plaintiff’s favor.

she attributes to Pinson are sufficiently offensive that any reasonable person—and certainly any

reasonable attorney—would have known that they were inappropriate and unwelcome.

The FAC, in sum, adequately alleges a hostile work environment claim based on Pinson’s

repeated and continuous sex-based inappropriate comments and jokes.

3. The Faragher/Ellerth Defense

That conclusion requires the court to consider the defendant’s next argument: that the

plaintiff cannot overcome its Faragher/Ellerth defense. Generally, when a “supervisor,” as

opposed to a co-worker, engages in sexual harassment, an employer may be strictly liable for that

conduct if it “culminates in a tangible employment action.” Wyatt v. Nissan N. Am., 999 F.3d 400,

412 (6th Cir. 2021). However, “if the harassment does not result in a tangible employment action,

‘the employer may escape liability by establishing’ an affirmative defense under the Faragher-

Ellerth framework.” Id. (quoting Vance v. Ball State Univ., 570 U.S. 421, 424 (2013), and citing

Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus., Inc. v. Ellerth, 524

U.S. 742, 765 (1998)). To avail itself of the affirmative defense, the employer must show by a

preponderance of the evidence that (1) it “exercised reasonable care to prevent and correct any

harassing behavior” and (2) that Bruce “unreasonably failed to take advantage of the preventive or

corrective opportunities” that A&R provided. Id. at 414 (quoting Vance, 570 U.S. at 424); see also

Clark v. United Parcel Serv., Inc., 400 F.3d 341, 348 (6th Cir. 2005). The defendant must prove

both prongs to prevail on its affirmative defense. Wyatt, 999 F.3d at 414.

At least for purposes of its Motion to Dismiss, A&R accepts that the plaintiff plausibly

alleges that Pinson was a supervisor. It argues, however, that Bruce has otherwise “failed to plead

facts to show her claim could go forward in the face of” its Faragher/Ellerth defense. (Doc. No.

22 at 10; see id. at 5 (asserting that the FAC “fail[s] to address the glaring problem with her hostile

work environment claim—Bruce’s admission that she knew how to complain about sexual

harassment but chose not to do so”).)

Notably, the Faragher/Ellerth defense is a defense that the defendant must plead and prove.

The plaintiff has no obligation to plead facts to avoid it. A&R argues, however, that the allegations

in the FAC itself establish that the hostile work environment claim will be barred by the defense.

(Id. at 11.) Specifically, it points out that Bruce alleges that she received a handbook when she

went to work for A&R, that the handbook contained provisions prohibiting harassment and

providing employees multiple avenues for reporting harassment, and that the plaintiff showed she

knew how to use these procedures, because she did so when she requested a reasonable

accommodation for her disability. (See id (citing FAC ¶¶ 137, 143).) A&R also argues that the

FAC shows that the plaintiff never complained to anyone at A&R that she was being sexually

harassed. A&R’s position is that this is all that is required to show that it is entitled to assert the

Faragher/Ellerth defense.

In Response, the plaintiff asserts that Pinson, the harasser, was a supervisor and a partner

at the law firm and, therefore, that he knew about the harassment. The implication of this assertion

is that, because Pinson was a supervisor, his knowledge can be imputed to A&R. Bruce also asserts

that the harassment “culminated in a tangible employment action” (her termination) and that

Pinson was the “driving force” behind that action, which makes the Faragher/Ellerth defense

unavailable to A&R. (Doc. No. 24 at 4.) Specifically, she claims that:

Pinson discussed terminating Plaintiff with office manager Brooke Ponder, on

September 30, 2022. It was not until after this discussion that Adams and Reese

began reprimanding Plaintiff for her attendance and punctuality. Given the amount

of control Pinson had over Plaintiff’s work, his leadership role within the law firm,

and the fact that his actions resulted in Plaintiff being terminated from her position,

Adams and Reese cannot use the affirmative defense to protect itself.

(Doc. No. 24 at 5 (citing FAC 36–37).) Her position, in other words, is that the FAC adequately

alleges that Pinson, in addition to harassing her, “began retaliating against [her] at [A&R].” (Id. at

1, 3.)

Despite the failure of either party to adequately brief this issue, the court finds that the FAC

cannot be construed to assert a Title VII retaliation claim and that, to the extent the plaintiff

intended to assert such a claim, the attempt failed. To state a claim for retaliation, Bruce must

plausibly allege that she engaged in protected conduct, that she was subjected to an adverse action

taken by the employer, and that there was a causal link between the adverse action and the

protected conduct. O’Connor v. Lampo Grp., LLC, No. 3:20-CV-00628, 2021 WL 4480482, at *9

(M.D. Tenn. Sept. 29, 2021) (citing Hazel v. Quinn, 933 F. Supp. 2d 884, 886–87 (E.D. Mich.

2013)).12

Here, as discussed above, the only protected conduct in which Bruce allegedly engaged

was declining Pinson’s invitations to social events in 2019 and 2021 and then, very particularly,

saying “no” to a sexual proposition on February 2, 2022, all while she was not yet employed by

A&R. Bruce also allegedly told Will Cheek about the event in February 2022—again, before they

moved to A&R. The plaintiff does not allege any continued invitations or propositions by Pinson

after they moved to A&R, only inappropriate comments and jokes. She does not allege that she

complained to anyone, including Pinson or Cheek, about those post-move comments and jokes. In

other words, for purposes of a retaliation claim, Bruce fails to allege that she engaged in any

protected conduct once she moved to A&R. Absent protected conduct, her retaliation claim fails.

Moreover, to the extent that saying “no” to Pinson’s February 2, 2022 proposition may

qualify as protected conduct even though the plaintiff was not yet employed by A&R at that time,

as already discussed above, the period of time between that sexual proposition and Pinson’s

12 To be clear, these are the elements of a retaliation claim, not the elements of the

plaintiff’s prima facie case for purposes of the McDonnell Douglas test. Accord O’Connor, 2021

WL 4480482, at *9 n.15.

allegedly retaliatory complaint on September 30, 2022 is simply too attenuated, standing alone, to

give rise to any possible inference of a causal connection between them—much less a causal

connection to Bruce’s termination (for other reasons) in May 2023. Accord Redlin v. Grosse Pointe

Pub. Sch. Sys., 921 F.3d 599, 615 (6th Cir. 2019) (recognizing that “temporal proximity [between

a Title VII complaint and an adverse employment action] alone can be enough circumstantial

evidence of causation if the two are sufficiently close in time,” but that, “[w]here some time elapses

between when the employer learns of a protected activity and the subsequent adverse employment

action, the employee must couple temporal proximity with other evidence of retaliatory conduct

to establish causality” (internal quotation marks and citations omitted)). Because the FAC contains

no other evidence of retaliatory conduct that would support a causal connection between allegedly

protected conduct on February 2, 2022 and an adverse action on September 30, 2022, the plaintiff

fails to state a retaliation claim and, for purposes of the Faragher/Ellerth defense, fails to allege

facts that, if true, would permit a reasonable jury to conclude that the alleged sexual harassment

culminated in a tangible employment action. The defendant, therefore, is not barred from raising

the defense.

However (and despite the plaintiff’s failure to posit other reasons to reject the application

of the defense here), the court finds that the defendant has not carried its burden of proving both

prongs of the defense by simply pointing to Bruce’s admission that A&R had an employee

handbook and her apparent understanding of how to invoke her rights in connection with her

request for an accommodation for a disability. Under the first Faragher/Ellerth prong, “regardless

of whether the victimized employee actively complained, . . . an employer will not escape vicarious

liability if it was aware of the harassment but did nothing to correct it or prevent it from occurring

in the future.” Clark, 400 F.3d at 349. In addition, the Sixth Circuit has explained that,

[w]hile the affirmative duty on the part of the employer will often include the

requirement that it have some sort of sexual harassment policy in place, the duty

does not end there. Prong one of the affirmative defense requires an inquiry that

looks behind the face of a policy to determine whether the policy was effective in

practice in reasonably preventing and correcting any harassing behavior.

Id. (citing Faragher, 524 U.S. at 806). To be “effective,” the employer’s sexual harassment policy

should, at a minimum, “(1) require supervisors to report incidents of sexual harassment; (2) permit

both informal and formal complaints of harassment to be made; (3) provide a mechanism for

bypassing a harassing supervisor when making a complaint; and (4) and provide for training

regarding the policy.” Id. at 349–50 (internal citations omitted). And a court, in evaluating whether

the defendant took reasonable care in preventing and promptly correcting the alleged sexual

harassment, “must look not only to [the defendant’s] sexual harassment policy, . . . but also to its

implementation of that policy.” Id. at 349.

The defendant clearly has not established all of these elements and certainly cannot do so

based solely on the face of the FAC. And even if it could, with regard to the second prong, the

allegations in the FAC do not affirmatively show that the plaintiff’s failure to take advantage of

A&R’s remedial procedures was unreasonable. The plaintiff expressly alleges that, because Pinson

was her supervisor, she was “convinced that complaining about her situation to Adams and Reese

Human Resources would lead to negative results and additional retaliation” and that she “felt like

she had no choice” but to accept Pinson’s alleged harassment in order to keep her job. (FAC ¶¶

354–55.) Only an examination of all of the facts and circumstances of this case will reveal whether

that conclusion was reasonable.

In sum, the court finds that the plaintiff has adequately, though marginally, alleged a hostile

work environment claim, but she has not alleged facts showing that she suffered a tangible

employment action resulting from the harassment. The defendant, therefore, is not barred from

raising a Faragher/Ellerth defense, but it also has not established at this juncture that it is entitled

to dismissal of the hostile work environment claim based on that defense. The defendant’s Second

Motion to Dismiss will be denied, insofar as it seeks dismissal of the plaintiff’s hostile work

environment claim. As set forth above, however, the court does not construe the FAC as asserting

a quid pro quo sexual harassment claim; nor does the FAC allege facts supporting a retaliation

claim. To the extent the plaintiff intended to assert a Title VII retaliation claim, that claim will be

dismissed.13

II. MOTION TO COMPEL ARBITRATION

Having determined that the Second Motion to Dismiss will be denied, the court must

determine whether the plaintiff’s claims under the ADA should be referred to arbitration or

whether the entirety of the case will remain in this court.

Generally, deciding whether to grant a motion to compel arbitration requires the court to

make four distinct determinations:

[F]irst, [the court] must determine whether the parties agreed to arbitrate; second,

it must determine the scope of that agreement; third, if federal statutory claims are

asserted, it must consider whether Congress intended those claims to be

nonarbitrable; and fourth, if the court concludes that some, but not all, of the claims

in the action are subject to arbitration, it must determine whether to stay the

remainder of the proceedings pending arbitration.

Glazer v. Lehman Bros., Inc., 394 F.3d 444, 451 (6th Cir. 2005). The plaintiff does not dispute that

she and A&R agreed to arbitrate and that the Arbitration Agreement covers her ADA claims. She

argues, however, that, with the passage of the Ending Forced Arbitration of Sexual Assault and

Sexual Harassment Act of 2021, none of her claims in this case are referrable to arbitration. A&R

responds that, although the court must maintain jurisdiction of the sexual harassment claims, it

13 Because neither the court nor the parties construe the FAC as intending to assert a quid

pro quo claim, and the defendant does not actually move to dismiss such a claim, the court does

not find it necessary to dismiss that non-existent claim.

should refer the ADA claims to arbitration.

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the

“EFAA”) was enacted and went into effect in March 2022 as a direct amendment of the Federal

Arbitration Act (“FAA”). It provides, in relevant part:

Notwithstanding any other provision of this title, at the election of the person

alleging conduct constituting a sexual harassment dispute or sexual assault dispute,

. . . no predispute arbitration agreement . . . shall be valid or enforceable with respect

to a case which is filed under Federal, Tribal, or State law and relates to the sexual

assault dispute or the sexual harassment dispute.

9 U.S.C. § 402(a) (emphasis added). In other words, the EFAA was enacted in order to allow

individuals alleging sexual assault or sexual harassment to forgo arbitration at their election. See

Johnson v. Everyrealm, Inc., 657 F. Supp. 3d 535, 560 (S.D.N.Y. 2023). The EFAA explicitly

refers the question of applicability to “a court, rather than an arbitrator, . . . irrespective of whether

the agreement purports to delegate such determinations to an arbitrator.” 9 U.S.C. § 402(b);

Johnson, 657 F. Supp. 3d at 550.

The issue raised here is this: given the EFAA’s use of the term “case,” if a single case

includes claims of sexual harassment (or sexual assault) and other kinds of claims, as here, does

the EFAA preclude enforcement of an otherwise applicable and enforceable arbitration agreement

as to the whole case or just the sexual harassment/assault claims. “Because the EFAA is so new,

there are few decisions interpreting it.” Williams v. Mastronardi Produce, Ltd., No. 23-13302,

2024 WL 3908718, at *6 (E.D. Mich. Aug. 22, 2024). Although there are apparently no circuit

court opinions addressing the EFAA yet, the issue in dispute in this case has been raised and

addressed by several district courts. See id. The plaintiff contends that the EFAA applies to the

whole case and that the court must deny the Motion to Compel Arbitration; the defendant concedes

that the court cannot compel the court to arbitrate Bruce’s sexual harassment claim, but it contends

that the court must compel the plaintiff to arbitrate her other claims.

By a large majority, the district courts interpreting the EFAA so far (including at least two

within the Sixth Circuit) have concluded, based upon the statute’s use of the term “case,” that the

EFAA precludes arbitration of the entire case, so long as the complaint includes a plausible sexual

harassment/assault claim. See, e.g., Williams, 2024 WL 3908718, at *7 (following the majority);

Scoggins v. Menard, Inc., No. 2:24-CV-00377, 2024 WL 3860464, at *7 (S.D. Ohio Aug. 19,

2024) (recognizing that, “[t]raditionally, in the context of the FAA, ‘if a dispute presents multiple

claims, some arbitrable and some not, the former must be sent to arbitration even if this will lead

to piecemeal litigation’” (quoting KPMG LLP v. Cocchi, 565 U.S. 18, 19 (2011), but holding that

“the EFAA did away with this presumption by directly amending the FAA” and that the

unambiguous language of the EFAA renders a pre-dispute arbitration agreement invalid and

unenforceable “with respect to a case . . . relat[ing] to the . . . sexual harassment dispute” and “thus

does not limit the invalidation to the claim or claims in which that dispute plays a part”); see also

Clay v. FGO Logistics, Inc., No. 3:23-CV-01575-MPS, 2024 WL 4335791, at *12 (D. Conn. Sept.

27, 2024) (“When a covered ‘dispute’ or ‘claim’ arises or accrues after [the effective date of the

EFAA], any arbitration agreement that would otherwise govern that dispute or claim may be

invalidated with respect to all claims in the case by the person alleging the covered dispute or

claim.”); Molchanoff v. SOLV Energy, LLC, No. 23-cv-653, 2024 WL 899384, at *5 (S.D. Cal.

Mar. 1, 2024) (concluding that “the EFAA bar[red] enforcement of the arbitration agreement . . .

as to all claims in th[e] case, and as to all Defendants”); Johnson, 657 F. Supp. 3d at 558–61

(holding that, when a case presents multiple claims—some related to sexual harassment and others

not—the EFAA blocks arbitration of the entire case, not just the sexual harassment claims); Delo

v. Paul Taylor Dance Found., Inc., 685 F. Supp. 3d 173, 180–81 (S.D.N.Y. 2023) (same, agreeing

with Johnson).

On the other hand, a very small minority of cases have held that, when a litigant files a case

with multiple claims, the EFAA invalidates the otherwise enforceable arbitration agreement only

as to the claims that are closely related to, or intertwined with, the sexual assault or sexual

harassment dispute. See, e.g., Mera v. SA Hospitality Grp., LLC, 675 F. Supp. 3d 442, 447

(S.D.N.Y. 2023) (holding that, “under the EFAA, an arbitration agreement executed by an

individual alleging conduct constituting a sexual harassment dispute is unenforceable only to the

extent that the case filed by such individual ‘relates to’ the sexual harassment dispute”—that is,

“only with respect to the claims in the case that relate to the sexual harassment dispute,” and that

“[t]o hold otherwise would permit a plaintiff to elude a binding arbitration agreement with respect

to wholly unrelated claims affecting a broad group of individuals having nothing to do with the

particular sexual harassment affecting the plaintiff alone”); Turner v. Tesla, Inc., 686 F. Supp. 3d

917, 925–28 (N.D. Cal. 2023) (purporting to reject Mera and to agree with Johnson but conducting

a close analysis of each of the plaintiff’s claims and finding that they were not referrable to

arbitration because they were either intertwined with or “substantially related to” her sexual

harassment claims).

This court agrees with those courts expressly rejecting Mera as imposing an unmanageable

standard. As explained in another opinion issued from the same judicial district as Mera:

[Mera’s] interpretation would require courts to carve up every case to which the

EFAA applies by reaching judgment—with respect to each claim—on whether the

claim relates to the sexual harassment or sexual assault dispute. But that approach

not only is antithetical to the language of the EFAA and its protective intent, but it

would also have the court address early in a case and in a definitive manner a

question that often is not easily answered on the pleadings. It is not self-evident for

example, that evidence that the plaintiff was the victim of persistent sexual assault

or harassment would be irrelevant to the claim that such person had also been

deprived of her rights to a minimum wage and overtime pay.

Diaz-Roa v. Hermes L., P.C., No. 24-CV-2105 (LJL), 2024 WL 4866450, at *13 n.9 (S.D.N.Y.

Nov. 21, 2024) (internal quotation marks and citations omitted). This court, following the clear

27

majority of opinions on this issue, finds, based on the unambiguous statutory language, that,

because the plaintiff states a colorable sexual harassment claim, the Arbitration Agreement is

unenforceable as to the entire case.

Accordingly, the Motion to Compel Arbitration will be denied.

I. CONCLUSION

For the reasons explained herein, the defendant’s Second Motion to Dismiss (Doc. No. 21)

will be granted in part, insofar as it apparently seeks dismissal of an arguable effort to state a

retaliation claim under Title VII. The motion will be denied as the plaintiff's hostile work

environment claim. The defendant’s Motion to Compel Arbitration (Doc. No. 13) will also be

denied. An appropriate Order is filed herewith.

Milk tag — Fn A TRAUGER

United States District Judge