The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:24-CV-592-D
SHANEKA MANGUM, ) .
Plaintiff,
v. ORDER
ROSS DRESS FOR LESS, INC.,
Defendant.
On May 24, 2023, Shaneka Mangum (“Mangum” or “plaintiff’) filed a complaint in
Cumberland County Superior Court against Ross Stores, Inc., (“Ross” or “defendant”) and failed
to serve a copy of the complaint on Ross. See [D.E. 1]41.! On August 30, 2024, Mangum filed
an amended complaint in Cumberland County Superior Court against Ross. [D.E. 1-2]. Mangum
alleges race discrimination in violation of 42 U.S.C. § 1981, wrongful discharge due to her race in
violation of North Carolina public policy, and negligence. See id. On October 17, 2024, Ross
removed the action to this court [D.E. 1].
On November 25, 2024, Ross moved to compel arbitration, attached the dispute resolution
agreement (“DRA”) that Mangum electronically signed, and filed a memorandum in support [D.E.
12, 12-1, 13]. On December 20, 2024, Mangum responded in opposition [D.E. 18]. On January
3, 2025, Ross replied [D.E. 19]. As explained below, the court grants Ross’s motion to compel
. arbitration, stays the action, and orders the parties to arbitrate this dispute.
1 The clerk shall correct the defendant’s name in this case.
I.
Ross “is a leading off-price retailer of . . . brand-named and designer apparel with stores in
more than 30, states, including North Carolina.” [D.E. 13]; see Am. Compl. [D.E. 1-2] { 2.
Mangum is “an African-American [sic] celibate female.” Am. Compl. J 1. In November 2016,
Mangum began work as a full-time store associate for Ross in Fayetteville, North Carolina. See
id. at § 1-2, 10; [D.E. 13] 2. On November 14, 2016, Mangum electronically signed Ross’s DRA.
See [D.E. 13] 2; [D.E. 12-1] 1-5. The DRA required Mangum to resolve “covered disputes” by
“final and binding arbitration and not by a court or jury.” [D.E. 12-1] 1.
Mangum “worked approximately three years . . . [for Ross] without incident.” Am. Compl.
11. Mangum alleges “it became known that Magnum was celibate.” Id. at | 12. Additionally,
Mangum “made it known [to her coworkers and management] that she did not want to be touched
by co-workers.” Id. at ¢ 13. Mangum describes celibacy as her “sexual orientation” and alleges
that “[o]nce it became known that Mangum was celibate and desire[d] not to be touched, Mangum
began to endure harassment from members of store management, as well as other co-workers.”
Id. at ¢ 14.
On June 22, 2019, Mangum received a favorable performance evaluation. See id. at J 15.
On December 24, 2019, Mangum alleges her shift manager, Ajala Van Dyke (“Van Dyke”), and
her supervisor, Devetria Kim (“Kim”), made offensive comments to Mangum about Mangum’s
genitalia and “suggested that Mangum engaged in masturbation.” Id. at ¥ 16.
On January 4, 2020, Mangum alleges Van Dyke made offensive comments about
Mangum’s genitalia in front of customers. See id. at 17. Later that week, Mangum alleges Kim
and another store manager, Shawn Walker (“Walker”), called Mangum “the N word.” Id. at □ 18.
On January 17, 2020, Mangum alleges two of her co-workers “engaged in a conversation
about Mangum’s genitalia.” Id. at ] 19. On February 15, 2021, Mangum alleges “several co-
workers” called her “the N word.” Id. at fj 20-21.
On February 12, 2022, Mangum filed a complaint with the Equal Employment Opportunity
Commission (“EEOC”) “alleging a hostile work environment that included racial slurs, sexual
harassment, mental anguish and emotional distress.” Id. at § 22. Mangum did not file a copy of
her EEOC charge and fails to allege the EEOC issued her a right to sue notice.
Mangum alleges that “[a] couple days after filing her EEOC [c]lomplaint,” an unnamed
supervisor “invaded [Mangum’s] personal space with a knife.” Id. at ] 23. Mangum reported this
incident to Ross’s human resource department. See id. Mangum also reported other instances of
harassment to human resources but “no action was ever taken on Mangum’s behalf.” Id. at J 26.
Ross fired Mangum “[a]fter Mangum filed her EEOC [clomplaint, but before the
investigation was concluded.” Id. at | 27. On August 30, 2024, after failing to properly serve
Ross, Mangum filed her amended complaint. See [D.E. 1] ff 1,3. Ross argues the DRA covers
Mangum’s claims and moves to compel arbitration and to stay proceedings pending arbitration.
See [D.E. 12].
Il.
A.
The Federal Arbitration Act (“FAA”) provides that a written arbitration agreement “shall
be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the
revocation of any contract.” 9 U.S.C. § 2; see Rent-A-Ctr, W., Inc. v. Jackson, 561 U.S. 63, 67
(2010); Amos v. Amazon Logistics, Inc., 74 F.4th 591, 595 (4th Cir. 2023). To compel arbitration,
Ross must show: “(1) a dispute exists between the parties; (2) the dispute falls within the scope
of a written, valid agreement that includes an arbitration provision; (3) the parties’ agreement
_ relates to interstate or foreign commerce; and (4) the opposing party has failed or refused to
arbitrate the dispute at hand.” Amos, 74 F.4th at 595; see Adkins v. Lab. Ready, Inc., 303 F.3d
496, 500-01 (4th Cir. 2002); De Sa v. RPS Holdings, LLC, 577 F. Supp. 3d 395, 396-97 (E.D.N.C.
2022) (collecting cases).
Under the FAA, a court interprets an arbitration agreement according to the intentions of
the parties. See, e.g., Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614,
626 (1985); Wash. Square Sec., Inc. v. Aune, 385 F.3d 432, 435 (4th Cir. 2004). Although a court
interprets an arbitration agreement using principles of state contract law, a court must give “due
regard ... to the federal policy favoring arbitration.” Volt Info. Scis., Inc. v. Bd. of Trs. of Leland
Stanford Junior Univ., 489 U.S. 468, 476 (1989); see Wachovia Bank, Nat’] Ass’n v. Schmidt, 445
F.3d 762, 767 (4th Cir. 2006); Newman v. First Montauk Fin. Corp .» No. 7:08-CV-116, 2010 WL
2933281, at *4-5 (E.D.N.C. July 23, 2010) (unpublished). Accordingly, “the parties’ intentions
are generously construed as to issues of arbitrability, and any doubts concerning the scope of
arbitrable issues should be resolved in favor of arbitration.” Newman, 2010 WL 2933281, at *4
(quotations and citation omitted); see Mitsubishi Motors Corp., 473 U.S. at 626; Moses H. Cone
Mem’ Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983), superseded by statute on other
grounds, 9 U.S.C. § 16(b)(1); Aune, 385 F.3d at 436.
The FAA creates a “presumption of arbitrability”” AT&T Techs., Inc. v. Comme’ns
Workers of Am., 475 U.S. 643, 650 (1986). A court must resolve any doubts in favor of arbitration
and compel arbitration “unless it may be said with positive assurance that the arbitration clause is
not susceptible of an interpretation that covers the asserted dispute.” Id.; see, e.g., Moses H. Cone
Mem’! Hosp., 460 U.S. at 24-25; Patten Grading & Paving, Inc. v. Skanska USA Bldg., Inc., 380
F.3d 200, 204 (4th Cir. 2004). “[TJhe heavy presumption of arbitrability requires that when the
scope of the arbitration clause is open to question, a court must decide the question in favor of
arbitration.” Peoples Sec. Life Ins. Co. v. Monumental Life Ins. Co., 867 F.2d 809, 812 (4th Cir.
1989). Furthermore, where an arbitration clause is reasonably susceptible of an interpretation that
covers the dispute between the parties, only an “express provision” in the arbitration agreement
excluding the dispute or “the most forceful evidence of a purpose to exclude the claim from
arbitration” suffices to preclude arbitration. Aune, 385 F.3d at 436 (quotations omitted).
Ross argues that the DRA covers Mangum’s claims and that Ross has satisfied its burden
under the FAA to compel arbitration. See [D.E. 13] 3-5. In response, Mangum does not challenge
the DRA’s validity. Instead, Mangum argues that because she specifically alleges sexual
harassment and sexual assault in her amended complaint, the Ending Forced Arbitration of Sexual
Assault and Sexual Harassment Act of 2021 (“EFAA”), Pub. L. No. 117-90, 136 Stat. 26 (codified
at9 U.S.C. §§ 401, 402) invalidates the DRA. See [D.E. 18] 1-4.
Ross replies that the court should reject Mangum’s arguments because Mangum does not
plausibly allege a sexual harassment claim or a sexual assault claim in her amended complaint.
Ross also notes that the EFAA applies only to a “dispute or claim that arises or accrues on or after
the date of enactment of this act.” EFAA § 3, 136 Stat. 28. The EFAA became law on March 3,
2022. See Pub. L. 117-90; Palmer v. Johns Island Post Acute, LLC, No. CV 2:22-3432, 2023 WL
4409038, at *8 (D.S.C. Mar. 7, 2023) (unpublished), report and recommendation adopted, No.
2:22-CV-3432, 2023 WL 4117366 (D.S.C. June 22, 2023) (unpublished). Ross then argues that
Mangum fails to allege that her claims accrued on or after March 3, 2022.
Federal district courts are split concerning the appropriate standard to apply to determine
whether the EFAA applies. See, e.g., Cardenas v. F.D. Thomas, Inc., No. 2:24-CV-1814, 2025
WL 418753, at *3 (E.D. Cal. Feb. 6, 2025) (unpublished); Diaz-Roa v. Hermes L.. P.C., No. 24-
CV-2105, 2024 WL 4866450, at *14 (S.D.N.Y. Nov. 21, 2024) (unpublished); Yost v. Everyrealm,
Inc., 657 F. Supp. 3d 563, 585 (S.D.N.Y. 2023). Moreover, the United States Court of Appeals
for the Fourth Circuit has not addressed this issue.
Some federal district courts apply the plausibility standard from Federal Rule of Civil
Procedure 12(b)(6), Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009), and Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 543-63 (2007), to determine whether a plaintiff has plausibly alleged a
sexual harassment claim or sexual assault claim and thereby can invoke the EFAA’s arbitration
preclusion. See, e.g., Halle Van De Hey v. EPAM Systems Inc., No. 24-CV-8800, 2025 WL
829604, at *3 (N.D. Cal. Feb. 28, 2025) (unpublished); Arouh v. GAN Ltd., No. 23-CV-2001,
2024 WL 3469032, at *6 (C.D. Cal. Mar. 22, 2024) (unpublished); Johnson v. Everyrealm, Inc.,
657 F. Supp. 3d 535, 551-52 (S.D.N.Y. 2023); Singh v. Meetup LLC, 750 F. Supp. 3d 250, 254
(S.D.N.Y. 2024) (collecting cases), reconsideration denied, 2024 WL 4635482 (S.D.N.Y. Oct. 31,
2024) (unpublished); Yost, 657 F. Supp. 3d at 585. Other federal district courts require a plaintiff
to plead only a nonfrivolous sexual harassment claim or sexual assault claim to invoke the EFAA’s
arbitration preclusion, with the sufficiency of the claim reserved for later adjudication. See, e.g.,
Cardenas, 2025 WL 418753, at *3—4; Gill v. U.S. Data Mgmt., LLC, No. 2:24-CV-5255, 2024
WL 5402494, at *3 (C.D. Cal. Dec. 2, 2024) (unpublished); Diaz-Roa, 2024 WL 4866450, at *14.
In considering whether the EFAA incorporates Rule 12(b)(6)’s plausibility standard, the
court examines the ordinary meaning of the statutory text, interprets specific provisions of the text
within the broader statutory context, applies certain canons of construction, and considers relevant
precedent. See, e.g., Jones v. Hendrix, 599 U.S. 465, 472-80, 490-91 (2023); Lac Du Flambeau
Band of Lake Superior Chippewa Indians vy. Coughlin, 599 U.S. 382, 387-88 (2023); MOAC Mall
Holdings LLC v. Transform Holdco LLC, 598 U.S. 288, 298-303 (2023); Sackett v. EPA, 598
US. 651, 679-83 (2023); Fin. Oversight Mgt. Bd. for P.R. v. Centro De Periodismo Investigativo,
Inc., 598 U.S. 339, 346-50 (2023); Ciminelli v. United States, 598 U.S. 306, 314-16 (2023);
Santos-Zacaria v. Garland, 598 U.S. 411, 416-23 (2023); Wilkins v. United States, 598 U.S. 152,
157-59 (2023); West Virginia v. EPA, 597 U.S. 697, 721-23 (2022); Boechler, P.C. v. Comm’r
of Internal Rev., 596 U.S. 199, 203-08 (2022); Penneast Pipeline Co. v. New Jersey, 594 U.S. 482,
506-08 (2021); Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 137 (2020); Opati v.
Republic of Sudan, 590 U.S. 418, 425-29 (2020); Comcast Corp. v. Nat’] Ass’n of Afr. Am.-
Owned Media, 589 U.S. 327, 333 (2020); see also Mayor & City Council of Baltimore v. BP
P.L.C., 31 F.4th 178, 220 (4th Cir. 2022); Brown & Williamson Tobacco Corp. v. Food & Drug
Admin., 153 F.3d 155, 162 (4th Cir. 1998); United States v. Jackson, 759 F.2d 342, 344 (4th Cir.
1985).
The court begins with the statute’s text. See United States v. Quality Stores, Inc., 572 U.S.
141, 145 (2014); Mississippi ex rel. Hood v. AU Optronics Corp., 571 U.S. 161, 168 (2014);
Sebelius v. Cloer, 569 U.S. 369, 376 (2013); BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91 (2006);
Cela v. Garland, 75 F.4th 355, 364 (4th Cir. 2023), cert. denied, 144 S. Ct. 2657 (2024); Davidson
v. United Auto Credit Corp., 65 F.4th 124, 128 (4th Cir. 2023). The court must give effect “to
every clause and word of a statute.” Loughrin v. United States, 573 U.S. 351, 358 (2014); see In
re Bateman, 515 F.3d 272, 277 (4th Cir. 2008); Hedin v. Thompson, 355 F.3d 746, 750 (4th Cir.
2004). The inquiry ceases if the statute is unambiguous, and “the statutory scheme is coherent and
consistent.” Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997); Brown & Williamson Tobacco
Corp., 153 F.3d at 162.
The EFAA amended the FAA. The EFAA states: “[nJotwithstanding 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); see Mulugu v. Duke Univ.
Sch. of Med., No. 1:23CV957, 2024 WL 3695220, at *22 (M.D.N.C. Aug. 7, 2024) (unpublished),
report and recommendation adopted, No. 1:23-CV-957, 2024 WL 3991682 (M.D.N.C. Aug. 29,
2024) (unpublished); Palmer, 2023 WL 4409038, at *8; Gibson v. Giles Chem. Corp., No. 1:20-
CV-394, 2022 WL 1446805, at *1 (W.D.N.C. May 6, 2022) (unpublished). The EFAA defines a
“sexual harassment dispute” as “a dispute relating to conduct that is alleged to constitute sexual
harassment under applicable Federal, Tribal, or State law.” 9 U.S.C. § 401(4). The EFAA defines
“a sexual assault dispute” as “a dispute involving a nonconsensual sexual act or sexual contact, as
such terms are defined in section 2246 of title 18 or similar applicable Tribal or State law, including
when the victim lacks capacity to consent.” Id. at § 401(3).
The court, and not the arbitrator, determines whether the EFAA applies. See 9 U.S.C. §
402(b) (the EFAA’s applicability “shall be determined by a court, rather than an arbitrator,” under
Federal law, “irrespective of whether the party resisting arbitration challenges the arbitration
agreement specifically or in conjunction with other terms of the contract containing the
agreement,” or “whether the agreement purports to delegate such determinations to an arbitrator”);
Walters v. Starbucks Corp., 623 F. Supp. 3d 333, 336-37 (S.D.N.Y. 2022). Section 402(a)
establishes who may invoke the EFAA: any “person alleging conduct constituting a sexual
harassment dispute.” 9 U.S.C. § 402(a). Section 401(4) then clarifies how a person invokes the
EFAA: by alleging conduct that “constitute[s] sexual harassment under applicable Federal, Tribal,
or State law.” 9 U.S.C. § 401(4); see, e.g., Yost, 657 F. Supp. 3d at 584-85. The same principles
apply to a person alleging a sexual assault dispute. See 9 U.S.C. § 401(3); see, e.g., Yost, 657 F.
Supp. 3d at 584-85.
In Mangum’s amended complaint, she alleges race discrimination in violation of 42 U.S.C.
§ 1981, wrongful discharge due to her race in violation of North Carolina public policy, and
negligence. See Am. Compl. {J 9-52. Mangum’s amended complaint does not include conduct
constituting a sexual harassment dispute under either North Carolina law or Title VII of the Civil
Rights Act of 1964 (“Title VI’). Moreover, although Mangum’s amended complaint alleges
sexual comments and alleges she filed an EEOC charge using the term “sexual harassment,” the
EFAA’s plain language requires a person to allege “conduct constituting a sexual harassment
dispute.” 9 U.S.C. § 402(a); Yost, 657 F. Supp. 3d at 585. Likewise, to the extent Mangum
contends that her amended complaint contains a “sexual assault dispute” as defined in section
401(3), it does not. See Am. Compl. FJ 9-52.
In analyzing whether the EFAA invalidates the DRA, the court must consider whether—
“when a plaintiff's basis to invoke the EFAA is that her complaint claims a violation of a Federal,
Tribal, or State law against sexual harassment [or sexual assault]—such a claim must be plausibly
pled.” Yost, 657 F. Supp. 3d at 585 (quotation omitted). In Yost, the court concluded that the
“term ‘alleged’ as used in § 401(4) is best read to implicitly corporis the plausibility standard.”
Id. The Yost court then persuasively explained why. First, Congress knew about the plausibility
standard under Rule 12(b)(6), Iqbal, and Twombly when it enacted the EFAA. Second, “requiring
a sexual harassment claim [or a sexual assault claim] to be capable of surviving dismissal at the
threshold of litigation fully vindicates the purposes of the EFAA” by empowering “sexual
harassment claimants [or sexual assault claimants] to pursue their claims” in court rather than
arbitration. Id. at 586. Third, allowing implausibly alleged claims to defeat arbitration agreements
“would affront Congress’s intent in enacting the FAA—of which, critically, the EFAA is a part.”
Id. at 586. Fourth, “although not dispositive on this point, courts in other contexts have construed
the statutory term ‘allege’ in accord” with this construction. Id. at 585-87 (cleaned up).
This court agrees with the district court’s conclusion in Yost. Thus, the court examines
whether Mangum has plausibly alleged a sexual assault dispute or a sexual harassment dispute as
defined in the EFAA in her amended complaint. See Fed. R. Civ. P. 12(b)(6); Iqbal, 556 □□□□ at
677-80; Tombly, 550 U.S. at 554-63. .
Under Rule 12(b)(6), the court considers the amended complaint’s legal and factual
sufficiency. See Iqbal, 556 U.S. at 677-80; Twombly, 550 U.S. at 554-63; Coleman v. Md. Ct.
of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566 U.S. 30 (2012); Giarratano v. Johnson,
521 F.3d 298, 302 (4th Cir. 2008). A pleading “must contain sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (quotation
omitted); see Twombly, 550 U.S. at 570; Giarratano, 521 F.3d at 302. Under Rule 12(b)(6), the
court must construe the facts and reasonable inferences “in the light most favorable to [the
nonmoving party].” Massey v. Ojaniit, 759 F.3d 343, 352 (4th Cir. 2014) (quotation omitted); see
Clatterbuck v. City of Charlottesville, 708 F3d 549, 557 (4th Cir. 2013), abrogated on other
grounds by Reed v. Town of Gilbert, 576 U.S. 155 (2015). A court need not accept as true an
amended complaint’s legal conclusions, “unwarranted inferences, unreasonable conclusions, or
arguments.” Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal, 556 U.S. at 678-79.
Rather, a plaintiff's factual allegations must “nudge[] [her] claims,” Twombly, 550 U.S. at 570,
beyond the realm of “mere possibility” into “plausibility.” Iqbal, 556 U.S. at 678-79.
10
‘Determining whether [an amended] complaint states a plausible claim for relief. . . [is] a
context specific task that requires the reviewing court to draw on judicial experience and common
sense.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct,” the allegation does not suffice. Id. A court may
consider the pleadings and any materials “attached or incorporated into the complaint.” □□□□ du
Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011); see Fed. R. Civ.
P. 10(c); Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016); Thompson v.
Greene, 427 F.3d 263, 268 (4th Cir. 2005). A court also may consider a document submitted by a
moving party if it is “integral to the [amended] complaint and there is no dispute about the
document’s authenticity” without converting the motion into one for summary judgment. Goines,
822 F.3d at 166. “[I]n the event of conflict between the bare allegations of the [amended]
complaint and any exhibit attached . . . , the exhibit prevails.” Id. (quotation omitted); see
Fayetteville Invs. v. Com. Builders, Inc., 936 F.2d 1462, 1465 (4th Cir. 1991). Additionally, a
court may take judicial notice of public records. See, e.g., Fed. R. Evid. 201; Tellabs, Inc. v.
Makor Issues & Rts., Ltd., 551 U.S. 308, 322 (2007); Philips v. Pitt Cnty. Mem’ Hosp., 572 F.3d
176, 180 (4th Cir. 2009).
Mangum must plausibly allege a sexual harassment dispute or sexual assault dispute, as
defined by the EFAA, to invoke the EFAA and avoid arbitration. See 9 U.S.C. § 402(b); Yost,
657 F. Supp. 3d at 583-85; Walters, 623 F. Supp. 3d at 336-37. The EFAA defines a sexual
harassment dispute as “a dispute relating to conduct that is alleged to constitute sexual harassment
under applicable Federal, Tribal, or State law.” 9 U.S.C. § 401(4). The EFAA defines a sexual
assault dispute as “a dispute involving a nonconsensual sexual act or sexual contact, as such terms
11
are defined in section 2246 of title 18 or similar applicable Tribal or State law, including when the
victim lacks capacity to consent.” 9 U.S.C. § 401(3).
As for whether Mangum plausibly alleges a “sexual assault dispute” in her amended
complaint, she does not. See Am. Compl. ff 9-52; cf. 18 U.S.C. § 2246(2) (defining “sexual act”);
18 U.S.C. § 2246(3) (defining “sexual contact”). Thus, 9 U.S.C. § 402(a) and § 401(4) do not
invalidate the DRA.
As for whether Mangum plausibly alleges a “sexual harassment dispute” in her amended
complaint under 9 U.S.C. § 402(a) and § 401(4), the court examines whether Mangum plausibly
alleges a Title VII sexual harassment claim. To state a sexually hostile work environment claim
under Title VII, Mangum must plausibly allege that (1) she experienced unwelcome conduct, (2)
the conduct was based on her sex, (3) the conduct was sufficiently severe or pervasive to alter the
conditions of employment and create an abusive atmosphere, and (4) the conduct is imputable to
the employer. See, e.g., Cosby v. S.C. Prob., Parole & Pardon Servs., 93 F.4th 707, 716 (4th Cir.
2024); Laurent-Workman v. Wormuth, 54 F.4th 201, 210-12 (4th Cir. 2022); Chapman v. Oakland
Living Ctr., Inc., 48 F.4th 222, 229 (4th Cir. 2022); Perkins v. Int’] Paper Co., 936 F.3d 196, 207—
08 (4th Cir. 2019); Parker v. Reema Consulting Servs., Inc., 915 F.3d 297, 302 (4th Cir. 2019);
Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (en banc); Okoli v. City
of Balt., 648 F.3d 216, 220-21 (4th Cir. 2011); E.E.O.C. v. Fairbrook Med. Clinic, P. A., 609 F.3d
320, 327 (4th Cir. 2010); Ziskie v. Mineta, 547 F.3d 220, 224 (4th Cir. 2008); Ocheltree v. Scollon
Prods., Inc., 335 F.3d 325, 331 (4th Cir. 2003) (en banc); Evans v. Capitol Broad Co., 716 F. Supp.
3d 387, 402-04 (E.D.N.C. 2024); Coleman vy. Altec, Inc., No. 5:16-CV-954, 2018 WL 4289610,
at *3 (E.D.N.C. Sept. 7, 2018) (unpublished); Brown v. Wake Cnty. Gov’t, No. 5:16-CV-806,
2017 WL 2982971, at *5 (E.D.N.C. July 12, 2017) (unpublished). An employee also must
12
plausibly allege that her protected characteristic was the “but for” cause of the alleged harassment.
See, e.g., Gilliam v. S.C. Dep’t Of Juv. Just., 474 F.3d 134, 142 (4th Cir. 2007).
To determine whether conduct was sufficiently severe or pervasive to alter the employee’s
terms and conditions of employment and create an abusive working environment based on □□□ □□□□
the court examines the allegations both subjectively and objectively. See, e.g., Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21-22 (1993). First, the employee must subjectively consider the conduct
to be sufficiently severe or pervasive as to alter her conditions of employment. See, e.g., Clark
Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270-71 (2001) (per curiam); Faragher v. City of Boca
Raton, 524 U.S. 775, 787-88 (1998); Boyer-Liberto, 786 F.3d at 277. Second, a court views the
conduct from the perspective of a reasonable person in the employee’s position to determine
whether it is objectively severe or pervasive. See, e.g., Breeden, 532 U.S. at 271; Faragher, 524
US. at 787-88; Oncale v. Sundowner Offshore Servs., Inc., 523 US. 75, 81-82 (1998); Boyer-
Liberto, 786 F.3d at 277.
The objective component helps courts “to police the baseline for hostile environment
claims.” Mendoza v. Borden, Inc., 195 F.3d 1238, 1244 (11th Cir. 1999) (en banc) (quotation
omitted). The court considers all the circumstances, including the “frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work performance.” Forklift
Sys., Inc., 510 U.S. at 23; see Parker, 915 F.3d at 304. The conduct must be severe or pervasive
to be actionable. See Forklift Sys., Inc., 510 U.S. at 23; Faragher, 524 U.S. at 787-88; Boyer-
Liberto, 786 F.3d at 277-78. Title VII does not create “a general civility code for the American
workplace.” Oncale, 523 U.S. at 80; see Irani v. Palmetto Health, 767 F. App’x 399, 416 (4th Cir.
2019) (per curiam) (unpublished). Rather, the “conduct must. . . amount to a change in the terms
13
and conditions of employment.” Faragher, 524 U.S. at 788; see Boyer-Liberto, 786 F.3d at
277-81. Simple teasing, sporadic rude language, offhand comments, jokes related to a protected
status, and isolated incidents (unless extremely serious) will not amount to discriminatory changes
in the terms and conditions of employment. See Burlington N. & Santa Fe Ry. v. White, 548 U.S.
53, 68-69 (2006); Breeden, 532 U.S. at 270-71; Faragher, 524 U.S. at 788; cf. Chapman, 48 F.4th
at 228-34; Boyer-Liberto, 786 F.3d at 277-81. Likewise, mere rude or insensitive treatment
cannot sustain a hostile work environment claim. See, e.g., Bonds v. Leavitt, 629 F.3d 369, 385—
86 (4th Cir. 2011); Baqir v. Principi, 434 F.3d 733, 746-47 (4th Cir. 2006); see also Breeden, 532
US, at 270-71; Faragher, 524 U.S. at 787-88; Oncale, 523 U.S. at 81-82; cf. Chapman, 48 F.4th
at 228-34; Boyer-Liberto, 786 F.3d at 277-81; Walker v. Mod-U-Kraf Homes, LLC, 775 F.3d
202, 207-10 (4th Cir. 2014); Freeman v. Dal-Tile Corp., 750 F.3d 413, 420-24 (4th Cir. 2014);
Okoli, 648 F.3d at 220-22.
“The real social impact of workplace behavior often depends on a constellation of
surrounding circumstances, expectations, and relationships which are not fully captured by simple
recitation of the words used or the physical acts performed.” Oncale, 523 U.S. at 81-82.
“Common sense, and an appropriate sensitivity to social context,” will enable courts to distinguish
between teasing, distasteful jokes, sporadic rude language, vulgarity, stupidity, offhand comments,
and insensitive treatment and “conduct which a reasonable person in the plaintiffs position would
_ find severely hostile or abusive” based on her sex. Id, at 82; Hartsell v. Duplex Prods., Inc., 123
F.3d 766, 771-74 (4th Cir. 1997).
Although hostile work environment claims often involve repeated conduct, an “isolated
incident of harassment can amount to discriminatory changes in the terms and conditions of
employment, if that incident is extremely serious.” Boyer-Liberto, 786 F.3d at 277 (quotations
14
and alterations omitted); see Pryor v. United Air Lines, Inc., 791 F.3d 488, 496 (4th Cir. 2015);
Okoli, 648 F.3d at 220 & n.5. In assessing the severity of the harassing conduct, the status of the
harasser is an important factor. See Boyer-Liberto, 786 F.3d at 278; Sonnier v. Diamond
Healthcare Corp., 114 F. Supp. 3d 349, 356 (E.D. Va. 2015). A “supervisor’s power and authority
invests his or her harassing conduct with a particular threatening character.” Burlington Indus.,
Inc. v. Ellerth, 524 U.S. 742, 763 (1998); see Boyer-Liberto, 786 F.3d at 278.
To impute liability to an employer for an employee’s sexual harassment, a plaintiff must
demonstrate that “after having acquired actual or constructive knowledge of the allegedly
harassing conduct, the employer had taken no prompt and adequate remedial action to correct it.”
Mikels v. City of Durham, 183 F.3d 323, 329 (4th Cir. 1999) (alteration and quotation omitted)
(collecting cases); see Pryor, 791 F.3d at 498; Freeman, 750 F.3d at 423; E.E.O.C. v. Xerxes Corp.,
639 F.3d 658, 669 (4th Cir. 2011); E.E.O.C. v. Sunbelt Rentals, Inc., 521 F.3d 306, 319 (4th Cir.
2008). As for an employer’s remedial actions, “Title VI requires only that the employer take steps
reasonably likely to stop the harassment.” Bazemore v. Best Buy, 957 F.3d 195, 202 (4th Cir.
2020) (quotation omitted); see Xerxes Corp., 639 F.3d at 669. In assessing remedial actions, the
court must consider, inter alia, “the promptness of the employer’s investigation when complaints
are made, whether offending employees were counseled or disciplined for their actions, and
whether the employer’s response _ actually effective” in stopping the conduct of which plaintiff
complains, Xerxes Corp., 639 F.3d at 669; see Bazemore, 957 F.3d at 202; Pryor, 791 F.3d at 498.
“[S]o long as discipline is reasonably calculated to end the [offensive] behavior, the exact
disciplinary actions lie within [the employer’s] discretion.” Bazemore, 957 F.3d at 202. “A
remedial action that effectively stops the harassment will be deemed adequate as a matter of law.”
Xerxes Corp., 639 F.3d at 670 (quotation omitted); Bazemore, 957 F.3d at 201-02.
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Even accepting the allegations in Mangum’s amended complaint as true, Mangum does not
plausibly allege a sexual harassment claim under Title VII or conduct that “constitute[s] sexual
harassment under applicable Federal, Tribal, or State law.” 9 U.S.C. § 401(4). Accordingly, the
EFAA does not invalidate the DRA. In light of these conclusions, the court declines to address
Ross’s argument that Mangum failed to allege that her claims arose or accrued on or after March
3, 2022.
B.
The record demonstrates: (1) the existence of a dispute between Ross and Mangum; (2) a
written arbitration agreement purporting to cover the dispute that is enforceable under contract
law; (3) the relationship of the transaction, as evidence by the arbitration agreement, to interstate
commerce; and (4) Mangum’s refusal to arbitrate the dispute. Moreover, the EFAA does not
invalidate the DRA. Thus, the court grants Ross’s motion to compel arbitration. See, e.g., Henry
Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. 63, 65-72 (2019); Epic Sys. Corp. v. Lewis,
584 U.S. 497, 505-25 (2018); Am. Express Co. v. Italian Colors Rest., 570 U.S. 228, 232-39
(2013); Marmet Health Care Ctr., Inc. v. Brown, 565 U.S. 530, 531-33 (2012) (per curiam);
CompuCredit Corp. v. Greenwood, 565 U.S. 95, 98 (2012); AT&T Mobility LLC v. Concepcion,
563 U.S. 333, 344-52 (2011); Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56-58 (2003) (per
curiam); Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 91-92 (2000); Gilmer_v.
Interstate/Johnson Lane Corp., 500 U.S. 20, 24-26 (1991); Dean Witter Reynolds, Inc. v. Byrd,
470 U.S. 213, 218 (1985); Moses H. Cone Mem’] Hosp., 460 U.S. at 24-28; Galloway v. Santander
Consumer USA, Inc., 819 F.3d 79, 89-90 (4th Cir. 2016); Santoro v. Accenture Fed. Servs., LLC,
748 F.3d 217, 221-24 (4th Cir. 2014); Muriithi v. Shuttle Express, Inc., 712 F.3d 173, 177-85 (4th
16 □
Cir. 2013); Rota-McLarty v. Santander Consumer USA, Inc., 700 F.3d 690, 697-98 (4th Cir.
2012); Adkins, 303 F.3d at 500-07; Newman, 2010 WL 2933281, at *7-8.
Ross asks the court to “[s]tay these proceedings pending the outcome of arbitration.” [D.E.
12] 2. Under 9 U.S.C. § 3, the court “shall on application of one of the parties stay the trial of the
action until such arbitration has been had.” 9 U.S.C. § 3. Thus, the court grants Ross’s motion to
compel, stays these proceedings pending the outcome of arbitration, and compels Mangum to
arbitrate her claims. See, e.g., Smith v. Spizzirri, 601 U.S. 472, 477-79 (2024).
Il.
In sum, the court GRANTS defendant’s motion to compel arbitration [D.E. 12], STAYS
the action, and ORDERS the parties to arbitrate their dispute.
SO ORDERED. This 7 day of April, 2025.
asa —
United States District Judge
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