The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DR. KIMBERLY PERSAUD, KIMBERLY PERSAUD,
KIMBERLY FREEMAN,
Plaintiff,
v.
REPORT AND
TALENT FOR 59TH STREET BLOOMINGDALES, RECOMMENDATION
BLOOMINGDALES, MACYS, RECRUITER PAIGE
WALLS, MATTHEW SUNG, CHRISTAL JOHNSON, 26-CV-368
COLLEGE RECRUITER JULIE BROWNSTONE, (Gonzalez, J.)
TRACEE WILLIAMS, SHANADE HERNANDEZ, (Marutollo, M.J.)
AMBER HEAVEN, ELINA SINGH, PEOPLE
LEADER WORKING REMOTE MORGAN DENNIS,
STEPHEN MCKINNEY, ELINA SINGH, AMANDA J.
SCHAFFER, TRACY M. PRESTON, RHODARICA
CAVALENTE, DEBORAH PACK, NIKKITA
WASHINGTON, DEBBIE BRESSETTE, DEBORAH
BRESSETTE, FRANCOIS RIVERA, DANIEL
RUCKER, TONY SPRING CEO MACYS
BLOOMINGDALES,
Defendants.
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JOSEPH A. MARUTOLLO, United States Magistrate Judge:
Pro Se Plaintiff Kimberly Persaud1 commenced this action on December 3, 2025, against
Defendants “Talent for 59th Street Bloomingdales,” “Bloomingdales,” “Macys,” Paige Walls,
Matthew Sung, Christal Johnson, Julie Brownstone, Tracee Williams, Shanade Hernandez, Amber
1 The Summons and Complaint name Plaintiff as “Dr. Kimberly Persaud,” “Kimberly Persaud,” and
“Kimberly Freeman,” who all appear to be the same person. See Dkt. No. 1-1 at 2, 4. To the extent,
however, any of these individuals are not actually Kimberly Persaud, the Court notes that “a person who is
not an attorney may represent herself pro se but may not represent another individual or entity.” Waheed
v. Police Dep’t 19th Precinct (NYPD), No. 25-CV-9101 (LLS), 2026 WL 539731, at *2 (S.D.N.Y. Feb. 26,
2026) (citations omitted). For purposes of the instant motion, the Court treats Plaintiff as a singular
individual: Kimberly Persaud.
Heaven, Elina Singh,2 Morgan Dennis, Stephen Mckinney, Amanda J. Schaffer, Tracy M. Preston,
Rhodarica Cavalente, Deborah Pack, Nikkita Washington, Debbie Bressette, Deborah Bressette,
Francois Rivera, Daniel Rucker, and Tony Spring (collectively, “Defendants”), alleging violations
of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq. See generally Dkt.
No. 1-1. Defendants Bloomingdale’s, LLC (“Bloomingdale’s”)3 and Macy’s, Inc. (“Macy’s”)4
removed this action to this Court on January 21, 2026. Dkt. No. 1.
Currently pending before this Court, on a referral from the Honorable Hector Gonzalez, is
the unopposed motion of Bloomingdale’s and Macy’s seeking to compel arbitration and stay the
action pending arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1, et seq. (“FAA”).
See Dkt. Nos. 12, 13; Referral Order, dated Mar. 18, 2026.
For the reasons set forth below, the undersigned respectfully recommends that the motion
be granted and that the Court stay the action pending the outcome of the arbitration.
I. Background
A. Relevant Procedural History
Plaintiff filed this action in the Supreme Court of the State of New York, Kings County,
on December 3, 2025. Dkt. No. 1-1. Bloomingdale’s and Macy’s were served with the Summons
and Complaint on December 31, 2025. Dkt. No. 1 ¶ 5. On January 21, 2026, Bloomingdale’s and
Macy’s removed the action to the United States District Court for the Eastern District of New York
on the basis of federal question jurisdiction. Id. ¶¶ 6-7. To date, Bloomingdale’s and Macy’s are
2 Defendant Elina Singh is named twice in the caption. See Dkt. No. 1-1 at 2, 4.
3 Bloomingdale’s is incorrectly named in the Complaint as “Bloomingdales.” Dkt. No. 1 at 1.
Bloomingdale’s is a wholly owned subsidiary of Macy’s. See Dkt. No. 2 at 1.
4 Macy’s is incorrectly named in the Complaint as “Macys.” Dkt. No. 1 at 1.
the only Defendants who have appeared in this action. There is no indication on the docket that
any of the other named Defendants have been served.
On January 28, 2026, Bloomingdale’s and Macy’s filed their Answer to the Complaint.
Dkt. No. 7. On January 29, 2026, Bloomingdale’s and Macy’s filed a letter stating their intention
to file a motion to compel arbitration and stay this action pursuant to the FAA. Dkt. No. 8 at 1.
On February 2, 2026, Judge Gonzalez directed Bloomingdale’s and Macy’s to file their anticipated
motion by February 12, 2026, and directed Plaintiff to file her response by March 16, 2026. Text
Order, dated Feb. 2, 2026. As discussed further below, Bloomingdale’s and Macy’s complied with
Judge Gonzalez’s scheduling order; Plaintiff did not. On March 18, 2026, Judge Gonzalez referred
the motion to compel arbitration and stay the action to the undersigned for a report and
recommendation. Referral Order, dated Mar. 18, 2026.
B. The Complaint
Plaintiff alleges that she was subjected to workplace discrimination in violation of the ADA
when she was given “no work schedule . . . after [she was] given an approved work accommodation
letter dated 11/06/2025 by [Macy’s/Bloomingdale’s].” Dkt. No. 1-1 at 5. Plaintiff alleges that,
although she “was told she could pick up work schedule hours for Luxury Retail Area in
[Bloomingdale’s] . . . in the online my [Macy’s] Insite employee portal during Orientation and by
[Defendant] Christal Johnson who [wrote] the ADA accommodations letter,” she was sent home
“on 11/8/2025 . . . because [Defendant] People Leader Morgan Dennis didn[’]t get the ADA start
work letter.” Id. Plaintiff contends that Defendant Dennis “did get the email that [Plaintiff] should
start work 11/7/2025.” Id.
Plaintiff also alleges that “[Defendant] Rhodarica Cavalente kept harassing and calling and
leaving voicemails saying there[’]s no specific written Area work schedule by [Defendant] People
Leader Morgan Dennis and that [Defendant] Deborah Pack would be calling [Plaintiff].” Id.
Plaintiff contends that she made “many” complaints about “this workplace disability
discrimination and,” still, “no work place written schedule existed for her Area.” Id. Plaintiff
alleges that “Asset [Protection] . . . stole [Plaintiff’s Bloomingdale’s] work ID.” Id. Plaintiff seeks
monetary and injunctive relief. Id. at 5, 7.
C. The Present Motion
Pursuant to the briefing schedule set by Judge Gonzalez on February 2, 2026,
Bloomingdale’s and Macy’s filed their motion to compel arbitration and stay the action on
February 12, 2026. Dkt. Nos. 12-13. In support of their motion, Bloomingdale’s and Macy’s filed
the Declaration of Cynthia Ripak, dated February 11, 2026 (“Ripak Declaration”), and the annexed
Exhibits A through D. Dkt. No. 13-1. Ms. Ripak is a Senior Manager of the Office of Solutions
InStore for Macy’s and its divisions/subsidiaries, including Bloomingdale’s. Id. ¶ 2. Ms. Ripak
is “responsible for the management and administration of Macy’s Solutions InSTORE Early
Dispute Resolution Program” (“Solutions InSTORE Program” or “Program”), which “covers
Bloomingdale’s employees.” Id. ¶ 4. Bloomingdale’s and Macy’s also filed the Declaration of
Nicolas Moreau, dated February 11, 2026 (“Moreau Declaration”), and the annexed Exhibits A
through D. Dkt. No. 13-2. Mr. Moreau is a Senior Director of Human Resources Technology,
Data and Analytics for Macy’s Corporate Services LLC, a “wholly-owned, second tier subsidiary”
of Macy’s, where he is “responsible for the human resources technology platforms used to collect,
store, and manage employee information for eligible employees” of divisions/subsidiaries of
Macy’s, including Bloomingdale’s. Id. ¶ 2.
1. The Solutions InSTORE Program
The Solutions InSTORE Program was implemented by Macy’s to “surface and resolve
disputes as early and fairly as possible.” Dkt. No. 13-1 ¶ 5. Generally, the Program applies to
employees of Macy’s “divisions/subsidiaries,” including Bloomingdale’s. Id. The Office of
Solutions InSTORE was established to support the Program. Id. ¶ 6.
According to the Solutions InSTORE Program Plan Document (“Plan Document”),
effective June 1, 2014,5 which explains the Program “in depth,” the Program contains four separate
steps for resolving workplace disputes. Id. ¶ 8; Id. at 16-55. A copy of the Plan Document, the
Solutions InSTORE New Hire Brochure (“Brochure”),6 and the Early Dispute Resolution Program
Election Form (“Election Form”) are given to newly hired employees. Id. ¶ 8; see also id. at 16-
29 (Brochure), 30-31 (Election Form), 32-55 (Plan Document).
Step 1, known as “Open Door,” is an “informal way to discuss [an employee’s] problem
with [their] supervisor or any other member of [the] local management team.” Id. at 20. Step 2
includes independent review of the complaint/decision by “Senior Human Resources
Management.” Id.; see also id. at 34 (“The Senior Vice President or another Human Resources
executive who was not involved in the Open Door process will review your issue. They’ll get
back to you in writing.”). “Steps 1 and 2 are available for any disputes relating to your employment
with the Company.” Id. at 34, 35.
5 The Solutions InSTORE Program was first implemented in 2003, and the Plan Document was
subsequently revised and implemented twice, with effective dates of January 1, 2007 and June 1, 2014.
Dkt. No. 13-1 ¶ 7. The June 1, 2014 Plan Document was in effect during Plaintiff’s employment. Id. ¶¶ 7,
8. Accordingly, the June 1, 2014 version is addressed here.
6 According to the Ripak Declaration, the Brochure “explains the Solutions InSTORE Program in simple
descriptive terms.” Dkt. No. 13-1 ¶ 19.
Steps 3 and 4, meanwhile, are available only for “covered claims involving legally
protected rights,” meaning “claims the employee could raise in a court or before an administrative
agency.” Id. at 35. If an employee is not satisfied with the result at Step 2, and the employee
“believe[s] [their] situation involves legally protected rights,” they can proceed to Step 3, “Request
for Reconsideration,” which includes a “formal review of eligible claims” by either a peer panel
or an executive member of the Solutions InSTORE Office. Id. at 20, 34.
Step 4 is arbitration, which the Brochure describes as “similar to a court proceeding, but
decided by an independent ‘Arbitrator’ who is approved by the American Arbitration Association
(AAA), and is not an employee of [the] Company.” Id. at 20. An employee is “not required to
utilize each step of the Program to initiate Arbitration.” Id. at 27. The Plan Document states that
an arbitrator’s final determination is “binding on both the Company and [the employee],” although
“[n]othing in the Solutions InSTORE Program . . . prevents [the employee] from filing, at any
time, a charge or complaint with a government administrative agency like the Equal Employment
Opportunity Commission, the Department of Justice, the Department or Labor or the National
Labor Relations Board.” Id. at 34.
According to the Plan Document, “[e]xcept as otherwise limited, all employment-related
legal disputes, controversies, or claims arising out of, or relating to, employment or cessation of
employment, whether arising under federal, state or local decisional or statutory law
(‘Employment-Related Claims’), are covered claims and shall be settled exclusively by final and
binding arbitration.” Id. at 38. Further, “[a]rbitration applies to any and all covered disputes,
controversies or claims whether asserted by the employee against the Company and/or against any
employee, officer or other alleged agent of the Company.” Id. In addition, arbitration “applies to
any and all covered disputes, controversies or claims asserted against the employee by the
Company, any officer, or any other employee or alleged agent of the Company.” Id. The Plan
Document gives several examples of Employment-Related Claims subject to arbitration, including
“claims arising under . . . the Americans with Disabilities Act.” Id.
The Plan Document describes arbitration as a “voluntary condition of employment,” as
employees are “given the option of excluding themselves from Step 4 arbitration within 30 days
of hire.” Id. at 37. The Plan Document specifies that,
[e]xcept in states calling for different election procedures, all
employees agree to be covered by Step 4 – Arbitration by accepting
or continuing employment with the Company after [June 1, 2014].
Employees are given the option to exclude themselves from
Arbitration by completing an election form within 30 days of hire
or, upon specific notice, other prescribed time frame. Until and
unless an employee chooses to be excluded from arbitration within
the prescribed time frame, the employee is covered by Step 4 –
Arbitration. In other states, your election form will allow you to
affirmatively choose whether you want to be covered by this final
step- Arbitration.
Id. at 35; see also id. at 28 (portion of the Brochure explaining that employees may opt out of
arbitration). The Plan Document also notes that “[w]hether an employee chooses to remain
covered by arbitration or to exclude him or herself has no negative effect on the employee’s
employment.” Id. at 37.
Further, “[i]f a party files a lawsuit in court to resolve claims subject to arbitration, both
[parties] agree that the court shall stay or, if appropriate, dismiss the lawsuit and require the claim
to be resolved through the Solutions InSTORE Program.” Id. at 39. The Plan Document contains
additional information regarding the commencement of arbitration (written, signed notice) and
other arbitration rules and procedures, including information concerning selecting an arbitrator,
representation, discovery, evidence, fees, and remedies. See id. at 40-51.
To ensure that employees are provided with information about the Solutions InSTORE
Program, in addition to receiving copies of the Brochure, Plan Document, and Election Form,
employees are presented with the Solutions InSTORE New Hire Acknowledgement form
(“Acknowledgement Form”) in electronic form, which asks the employee to verify that the
employee has received copies of the Brochure, Plan Document, and Election Form, and that the
employee understands that if the employee does not opt out of Step 4 within thirty days of
beginning employment, any employment disputes will be resolved in arbitration. Id. at 57-58; see
also Dkt. No. 13-2 ¶ 10. The Acknowledgement Form also states where the employee may find
additional information about the Program, including from the Office of Solutions InSTORE. Dkt.
No. 13-1 at 57. The employee must view the Acknowledgement Form before the computer system
permits the employee to enter an electronic signature on the document. Dkt. No. 13-2 ¶ 9.
In addition, a new hire orientation video is shown to all newly hired employees and further
explains the Program and opt-out procedure. Dkt. No. 13-1 ¶¶ 17, 25; id. at 60-63. To view the
video, the newly hired employee is “required to enter his or her employee ID number and verify
her first name, last name, division and location.” Id. ¶ 25; see also Dkt. No. 13-2 ¶ 17. “At the
conclusion of the video, the employee [is] required to check a box stating, ‘I verify that I have
viewed the entire Solutions InSTORE presentation’ and again enter his or her employee ID.” Dkt.
No. 13-1 ¶ 25. After completing this verification, the fact that the video was completed is reflected
in the employee’s “training records.” Id. The computer system will not mark the video as having
been completed until the entire video has been played. Dkt. No. 13-2 ¶ 17.
Employees may also access information regarding the Program on the Solutions InSTORE
Program webpage on the Macy’s employee website. Dkt. No. 13-1 ¶ 17. “[T]he Solutions
InSTORE website . . . can be accessed by the employee on any computer or handheld device with
an Internet connection.” Id. ¶ 26. Both the Brochure and the Acknowledgement Form provide the
URL and state that employees may obtain another copy of the Plan Document there. Id. ¶¶ 22, 24;
id. at 28, 57.
2. Plaintiff’s Employment Records
Plaintiff was hired by Bloomingdale’s as a “seasonal sales employee” on October 27, 2025.
Dkt. No. 13-1 ¶ 16; see also Dkt. No. 13-2 at 21. Upon being hired, Plaintiff was provided with
a copy of the Brochure, which includes the Plan Document and Election Form. Dkt. No. 13-1 ¶
23. On October 27, 2025, Plaintiff electronically signed the Acknowledgement Form. Id. ¶¶ 17,
24; id. at 57-58; see also Dkt. No. 13-2 at 10, 14-15. On October 31, 2025, Plaintiff viewed the
entire new hire orientation video regarding the Solutions InSTORE Program. Dkt. No. 13-1 ¶¶
17, 25; id. at 65; Dkt. No. 13-2 ¶ 17; id. at 41.
Bloomingdale’s and Macy’s have no record of Plaintiff submitting an Election Form to opt
out of Step 4 of the Program/arbitration. Dkt. No. 13-1 ¶ 30. Their records reflect that Plaintiff
contacted the Office of Solutions InSTORE related to Step 1 and 2 of the Program, but “at no
time did she question or challenge her inclusion in the arbitration portion of the Solutions
InSTORE Program.” Id. ¶ 33.
D. Plaintiff’s Response7
On March 2, 2026, Plaintiff filed a handwritten letter stating that she is “requesting to keep
or stay in Kings Supreme/Civil Court.” Dkt. No. 18. Plaintiff argued that she is “disabled and this
is a workplace discrimination wrongful termination lawsuit is [sic] for small dollars. [Plaintiff]
7 “It is well established that the submissions of a pro se litigant must be construed liberally and interpreted
‘to raise the strongest arguments they suggest.’” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474
(2d Cir. 2006) (citations omitted).
do[es] not move this Equal Opportunity Lawsuit (EEOC) to this court house.”8 Id. (underline in
original).
On March 17, 2026, the Court acknowledged receipt of Plaintiff’s March 2, 2026 letter and
indicated that it does not appear to respond to the pending motion. Text Order, dated Mar. 17,
2026. The Court sua sponte extended Plaintiff’s time to respond to the motion to March 25, 2026.
Id. Plaintiff failed to respond by March 25, 2026. On March 26, 2026, the Court sua sponte further
extended Plaintiff’s time to respond to April 2, 2026. Text Order, dated Mar. 26, 2026. No
response has been filed by Plaintiff to date. Accordingly, the undersigned will consider the motion
to be unopposed. See Hawkins v. Synchrony Bank, No. 23-CV-6583 (EK) (VMS), 2025 WL
890476, at *2 (E.D.N.Y. Mar. 24, 2025) (considering defendants’ motions to compel arbitration
and for a more definite statement as unopposed when pro se plaintiff only filed a letter asking the
Court to “return this action to Small Claims Court” but did not mention either of defendants’
motions, “even though the District Court gave Plaintiff a date to file opposition papers to both
motions”); Peyser v. Kirshbaum, No. 12-CV-2857 (KBF), 2012 WL 6200739, at *2 (S.D.N.Y.
Dec. 11, 2012) (treating motion to compel arbitration as unopposed in light of the respondents’
failure to file an opposition prior to the Court-ordered deadline).
II. Standard of Review
The FAA provides that,
[i]f any suit or proceeding be brought in any of the courts of the
United States upon any issue referable to arbitration under an
agreement in writing for such arbitration, the court in which such
8 Plaintiff also noted that she is “not being served any documents for court.” Dkt. No. 18. There is no
indication, however, that the orders and other documents mailed to Plaintiff’s address of record by the Clerk
of Court or counsel for Bloomingdale’s and Macy’s have been returned as undeliverable or otherwise not
delivered to Plaintiff. Plaintiff has not provided an updated address of record or additional updated contact
information. Plaintiff “has an ongoing duty to update the Court if [her] mailing address has changed, or
changes at any juncture.” Thompson v. Snortland, No. 19-CV-4743 (PKC) (LB), 2022 WL 1597402, at *1
(E.D.N.Y. May 19, 2022).
suit is pending, upon being satisfied that the issue involved in such
suit or proceeding is referable to arbitration under such an
agreement, shall on application of one of the parties stay the trial of
the action until such arbitration has been had in accordance with the
terms of the agreement, providing the applicant for the stay is not in
default in proceeding with such arbitration.
9 U.S.C. § 3. Under the FAA, “an agreement to arbitrate is ‘valid, irrevocable, and enforceable.’”
Arciniaga v. Gen. Motors Corp., 460 F.3d 231, 235 (2d Cir. 2006) (quoting 9 U.S.C. § 2). “This
provision establishes ‘a liberal federal policy favoring arbitration agreements,’” and “requires
courts to enforce agreements to arbitrate according to their terms . . . even when the claims at issue
are federal statutory claims.” CompuCredit Corp. v. Greenwood, 565 U.S. 95, 98 (2012) (citations
omitted); see also New Prime Inc. v. Oliveira, 586 U.S. 105, 120 (2019) (“Congress adopted the
Arbitration Act in an effort to counteract judicial hostility to arbitration and establish ‘a liberal
federal policy favoring arbitration agreements.’” (quoting Moses H. Cone Mem’l Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 24 (1983))). “Having made the bargain to arbitrate, the party should be
held to it” unless Congress has indicated otherwise. Arciniaga, 460 F.3d at 235 (quoting
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985)).
The liberal policy favoring arbitration, however, “is limited by the principle that
‘arbitration is a matter of consent, not coercion. Specifically, arbitration is a matter of contract,
and therefore a party cannot be required to submit to arbitration any dispute which [it] has not
agreed so to submit.’” Holick v. Cellular Sales of N.Y., LLC, 802 F.3d 391, 395 (2d Cir. 2015)
(quoting JLM Indus., Inc. v. Stolt-Nielsen SA, 387 F.3d 163, 171 (2d Cir. 2004)).
On a motion to compel arbitration, the Court must determine: “(1) ‘whether the parties
agreed to arbitrate’; (2) ‘the scope of that agreement’; and, (3) ‘if federal statutory claims are
asserted, . . . whether Congress intended those claims to be nonarbitrable.’” Daly v. Citigroup
Inc., 939 F.3d 415, 421 (2d Cir. 2019) (quoting Genesco, Inc. v. T. Kakiuchi & Co. Ltd., 815 F.2d
840, 844 (2d Cir. 1987)). “The party seeking to compel arbitration bears an initial burden of
demonstrating that an agreement to arbitrate was made.” Zachman v. Hudson Valley Fed. Credit
Union, 49 F.4th 95, 101-02 (2d Cir. 2022) (citations omitted). This burden on the moving party
“does not require the moving party to show that the agreement would be enforceable—only that
an agreement to arbitrate existed.” Id. at 102 (citation omitted). The court applies “ordinary state-
law principles that govern the formation of contracts.” Davitashvili v. Grubhub Inc., 131 F.4th
109, 115 (2d Cir. 2025) (quoting First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995));
see also Barrows v. Brinker Rest. Corp., 36 F.4th 45, 50 (2d Cir. 2022) (stating that arbitration
agreement-formation questions are determined “by applying the law of the state at issue” (citation
omitted)). “Once the existence of an agreement to arbitrate is established, the burden shifts to the
party seeking to avoid arbitration to ‘show[] the agreement to be inapplicable or invalid.’”
Zachman, 49 F.4th at 102 (citation omitted)).
A court must also determine “whether questions of ‘arbitrability’ are for the court or the
arbitrator to decide.” Davitashvili, 131 F.4th at 115 (citing Coinbase, Inc. v. Suski, 602 U.S. 143,
148-49 (2024)). “Courts should not assume that the parties agreed to arbitrate arbitrability unless
there is clea[r] and unmistakabl[e] evidence that they did so.” DDK Hotels, LLC v. Williams-
Sonoma, Inc., 6 F.4th 308, 317 (2d Cir. 2021) (first quoting First Options of Chi., 514 U.S. at 944;
and then citing NASDAQ OMX Grp., Inc. v. UBS Sec., LLC, 770 F.3d 1010, 1032 (2d Cir. 2014));
see also Ross v. Finzer, No. 25-CV-1179 (DEH) (VF), 2025 WL 2860070, at *3 (S.D.N.Y. Oct.
8, 2025) (“Unless the parties clearly and unmistakably provide otherwise, the question of whether
the parties agreed to arbitrate is to be decided by the court, not the arbitrator.” (quoting AT & T
Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 649 (1986))). “The FAA provides that
the issue of arbitrability should presumptively be resolved by the courts.” Davitashvili, 131 F.4th
at 117 (citing BG Grp., PLC v. Republic of Argentina, 572 U.S. 25, 34 (2014); 9 U.S.C. § 2).
“[O]rdinary state-law principles that govern the formation of contracts” are applied to determine
the parties’ intent. DDK Hotels, 6 F.4th at 317 (quoting First Options of Chi., 514 U.S. at 944).
“[A] court may order arbitration of a particular dispute only where the court is satisfied that the
parties agreed to arbitrate that dispute.” Cooper v. Ruane Cunniff & Goldfarb Inc., 990 F.3d 173,
179 (2d Cir. 2021) (quoting Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 297 (2010)).
“Because motions to compel arbitration are governed by a standard ‘similar to that
applicable for a motion for summary judgment,’ a court must ‘draw all reasonable inferences in
favor of the non-moving party.’” Barrows, 36 F.4th at 49 (quoting Nicosia v. Amazon.com, Inc.,
834 F.3d 220, 229 (2d Cir. 2016)). “[T]he Court undertakes this analysis by considering all
relevant, admissible evidence submitted by the parties and contained in pleadings, depositions,
answers to interrogatories, and admissions on file, together with affidavits, and draws all
reasonable inferences in favor of the nonmoving party.” McPherson v. Bloomingdale’s, LLC, No.
23-CV-1084 (JMA) (ARL), 2023 WL 8527462, at *4 (E.D.N.Y. Dec. 8, 2023) (citing Meyer v.
Uber Techs., Inc., 868 F.3d 66, 74 (2d Cir. 2017); Nicosia, 834 F.3d at 229); see also Davitashvili,
131 F.4th at 115 (applying a “standard similar to that applicable for a motion for summary
judgment,” that is, “courts must ‘consider all relevant, admissible evidence submitted by the
parties’ and must ‘draw all reasonable inferences in favor of the non-moving party’” (citation
omitted)).
“A party resisting arbitration on the ground that no agreement to arbitrate exists must
submit sufficient evidentiary facts in support of this claim in order to precipitate the trial
contemplated by 9 U.S.C. § 4.” Diaz v. Wanrong Trading Corp., 810 F. Supp. 3d 379, 390
(E.D.N.Y. 2025) (quoting Manning v. Energy Conversion Devices, Inc., 833 F.2d 1096, 1103 (2d
Cir. 1987)); see also Barrows, 36 F.4th at 50 (stating that the nonmovant must “counter with at
least ‘some evidence . . . to substantiate [her] denial’ that an agreement had been made” (quoting
Interocean Shipping Co. v. Nat’l Shipping & Trading Corp., 462 F.2d 673, 676 (2d Cir. 1972)
(emphasis added))). “Conclusory statements or mere assertions are insufficient.” Diaz, 810 F.
Supp. 3d at 390 (citations omitted).
Moreover, “[a] district court must stay proceedings once it is satisfied that the parties have
agreed in writing to arbitrate an issue or issues underlying the district court proceeding.” Ziboukh
v. Whaleco, Inc., 795 F. Supp. 3d 349, 370-71 (E.D.N.Y. 2025) (quoting Nicosia, 834 F.3d at 229);
see also Smith v. Spizzirri, 601 U.S. 472, 478 (2024) (“When a district court finds that a lawsuit
involves an arbitrable dispute, and a party requests a stay pending arbitration, . . . the FAA compels
the court to stay the proceeding.”); JLM Indus., 387 F.3d at 169 (holding that a court, when
considering a motion to compel, must first “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 case are arbitrable, it must then decide
whether to stay the balance of the proceedings pending arbitration” (citation omitted)). In other
words, unless the parties consent to dismissal, proceedings must be stayed “when all of the claims
in an action have been referred to arbitration.” Hu v. Barclays Cap. Inc., No. 24-CV-7580 (JPO),
2025 WL 1307700, at *1 (S.D.N.Y. May 6, 2025) (quoting Katz v. Cellco P’ship, 794 F.3d 341,
347 (2d Cir. 2015)).
III. Discussion
A. The Parties Agreed to Arbitration
“Arbitration is a matter of contract and consent, and . . . disputes are subject to arbitration
if, and only if, the parties actually agreed to arbitrate those disputes.” Rubinstein v. Vivid Seats
Inc., No. 24-CV-1387 (PKC) (AYS), 2025 WL 2773161, at *5 (E.D.N.Y. Sep. 29, 2025) (quoting
Coinbase, 602 U.S. at 145). Bloomingdale’s and Macy’s have the initial burden of demonstrating
that an agreement to arbitrate was made. See McPherson, 2023 WL 8527462, at *4 (quoting
Zachman, 49 F.4th at 101-02). “Whether such an agreement existed is a question of applicable
state contract law.” Id. (citing Zachman, 49 F.4th at 101; Barrows, 36 F.4th at 50).
Here, Bloomingdale’s and Macy’s contend that New York law governs pursuant to the
arbitration agreement. See Dkt. No. 13 at 22. The Plan Document contains a choice of law
provision; namely, the Plan Document states that “[t]he Arbitrator shall apply the substantive law
. . . of the state in which the employee is or was employed,” and where a claim arises under federal
law but there is “no controlling United States Supreme Court authority, the Arbitrator shall follow
the substantive law that would be applied by the United States Court of Appeals and the United
States District Court for the District in which the employee is or was employed.” Dkt. No. 13-1
at 47. It is undisputed that Plaintiff was employed in New York. Id. ¶ 16; Dkt. No. 1-1 at 5.
Accordingly, because the Plan Document’s choice of law provision requires that Plaintiff’s claims
be evaluated under New York law, the undersigned analyzes whether a contract was formed under
New York law. See McPherson, 2023 WL 8527462, at *4 (applying New York law pursuant to
the same choice of law provision); Zachman, 49 F.4th at 101 (evaluating arbitration clause under
New York law consistent with the agreement’s choice of law provision).
Under New York law, there must be an offer, acceptance, consideration, mutual assent,
and intent to be bound to form a valid contract. Rowe Plastic Surgery of N.J., L.L.C. v. Aetna Life
Ins. Co., No. 23-8083, 2024 WL 4315128, at *2 (2d Cir. Sep. 27, 2024) (quoting Register.com,
Inc. v. Verio, Inc., 356 F.3d 393, 427 (2d Cir. 2004)). Here, Bloomingdale’s and Macy’s argue
that Bloomingdale’s made an offer to arbitrate when it “notified [Plaintiff] about the Solutions
InSTORE Program and Step 4—Arbitration in the documentation and information materials
provided to her.” Dkt. No. 13 at 22. They argue that “Plaintiff expressly acknowledged receiving
the Brochure and Plan Document” when she signed the Acknowledgement Form on October 27,
2025. Id. at 23 (citations omitted). Bloomingdale’s and Macy’s further assert that “Plaintiff
accepted the offer to arbitrate her employment-related claims by continuing her employment and
by declining the opportunity to opt out of Step 4-Arbitration.” Id.
The undersigned agrees with Bloomingdale’s and Macy’s that arbitration was offered and
accepted with mutual assent. It is clear that the Plan Document—which is explained in the
Brochure—constitutes an offer to arbitrate employment-related disputes between Bloomingdale’s
and Macy’s and their employees as part of the Solutions InSTORE Program, with an option for
the employee to opt-out of arbitration within thirty days of hire. See Dkt. No. 13-1 at 32-55. The
Plan Document states that, “all employees agree, as a condition of employment, to arbitrate all
disputes not otherwise excluded under the terms of the Plan,” but “arbitration is a voluntary
condition of employment,” since “[e]mployees are given the option of excluding themselves from
Step 4 arbitration within 30 days of hire.” Id. at 37. An employee opts out of arbitration by
“completing an election form within 30 days of hire.” Id. at 35. In short, arbitration is not a
condition of employment if the employee opts out of arbitration.
Upon being hired on October 27, 2025, Plaintiff was provided with a copy of the Brochure,
which includes the Plan Document and Election Form. Id. ¶¶ 16, 23. Bloomingdale’s and Macy’s
filed declarations to support the contention that Plaintiff received these materials on October 27,
2025. See generally Dkt. Nos. 13-1, 13-2. Bloomingdale’s and Macy’s also filed a copy of the
Acknowledgement Form that Plaintiff signed on October 27, 2025. Dkt. No. 13-1 at 57-58; see
also Dkt. No. 13-2 at 10, 14-15. The Acknowledgement Form asks the employee to verify that
the employee received copies of the Brochure, Plan Document, and Election Form, and that the
employee understands that if the employee does not opt out of Step 4 within thirty days of
beginning employment, any employment disputes will be resolved in arbitration. Dkt. No. 13-1 at
57-58. The Acknowledgement Form describes where the employee may find additional
information about the Program, including from the Office of Solutions InSTORE. Id. at 57. The
employee must view the Acknowledgement Form before the computer system permits the
employee to enter an electronic signature on the document. Dkt. No. 13-2 ¶ 9. To opt out of
arbitration, Plaintiff needed to submit the Election Form to the Office of Solutions InSTORE by
November 26, 2025. But, according to Bloomingdale’s and Macy’s, Plaintiff never submitted an
Election Form. Dkt. No. 13-1 ¶ 30. Plaintiff has not argued otherwise.
Plaintiff’s electronic signature on the Acknowledgement Form and her failure to opt-out
via an Election Form support a finding that Plaintiff assented to the arbitration agreement as part
of the Solutions InSTORE Program. “Courts have ‘routinely upheld arbitration agreements
contained in employee handbooks where . . . the employee has signed an acknowledgment form.’”
Gil v. Bensusan, No. 18-CV-10657 (VEC), 2019 WL 12334706, at *3 (S.D.N.Y. Oct. 30, 2019)
(collecting cases, and holding that, where plaintiff employee signed an acknowledgement form
stating that he received and read the “Consent to Arbitration” policy, his argument that he did not
receive the policy or the employee handbook where it is found failed). Indeed, even if Plaintiff
were to argue that she did not read the Acknowledgement Form before signing, such argument
would be futile because “[u]nder New York Law, a party will ‘not be excused from his failure to
read and understand the contents’ of a document.” Id. (quoting Victorio v. Sammy’s Fishbox
Realty Co., LLC, No. 14-CV-8678 (CM), 2015 WL 2152703, at *11 (S.D.N.Y. May 6, 2015));
see also id. at *4 (“Notice may also be presumed when there is evidence that the employer sent
the policy through email or when the employee was told that it was their responsibility to read the
policy.” (citing Brown v. St. Paul Travelers Cos., Inc., 331 F. App’x 68, 69 (2d Cir. 2009);
McAllister v. East, 611 F. App’x 17 (2d Cir. 2015); Patterson v. Ramours Furniture Co., Inc., 96
F. Supp. 3d 71, 76 (S.D.N.Y. 2015))). Furthermore, the records of Bloomingdale’s and Macy’s
show that Plaintiff viewed the entire new hire orientation video regarding the Solutions InSTORE
Program on October 31, 2025, supporting a finding of additional notice. Dkt. No. 13-1 ¶¶ 17, 25;
id. at 65; Dkt. No. 13-2 ¶ 17; id. at 41. While the arbitration portion of the Solutions InSTORE
Program is a “voluntary condition of employment,” Dkt. No. 13-1 at 37, Plaintiff did not opt out
within thirty days of her hire, despite being on notice of such requirement.
Additionally, courts have “repeatedly held” that, as here, “an employee who continues to
work after notice that claims against the employer will be subject to binding arbitration and who
do not affirmatively opt out of arbitration, have agreed, by their conduct, to arbitrate any claims
against the employer.” Boves v. Aaron’s Inc., No. 18-CV-5 (HBP), 2019 WL 1206698, at *4
(S.D.N.Y. Mar. 14, 2019) (collecting cases); see also McPherson, 2023 WL 8527462, at *5
(“Under New York law, a contract may be formed . . . by conduct that demonstrate[s] the parties’
mutual assent.” (quoting Manigault v. Macy’s E., LLC, 318 F. App’x 6, 8 (2d Cir. 2009))). “Under
those circumstances, the employee’s continued employment serves as an ‘objective
manifestation[]’ of the employee’s intent to be bound.” Rightnour v. Tiffany & Co., 239 F. Supp.
3d 744, 752 (2017). Indeed, courts in this Circuit have repeatedly found that, under New York
law, “signing the Acknowledgment Form and failing to timely submit the Election Form
constitute an agreement to arbitrate” under the Solutions InSTORE Program. McPherson, 2023
WL 8527462, at *5 (collecting cases); see also Crawley v. Macy’s Retail Holdings, Inc., No. 15-
CV-2228 (KPF), 2017 WL 2297018, at *5 (S.D.N.Y. May 25, 2017); Pierre v. Macy’s Inc., No.
16-CV-2556 (JMA) (AKT), 2016 WL 11652066, at *3-4 (E.D.N.Y. Nov. 23, 2016); Teah v.
Macy’s Inc., No. 11-CV-1356 (CBA) (MDG), 2011 WL 6838151, at *5 (E.D.N.Y. Dec. 29,
2011). In fact, “the Second Circuit has held that an employee’s continued employment after being
advised that it was his responsibility to read and understand the company policy constitutes
acceptance of an arbitration policy.” Gil, 2019 WL 12334706, at *3 (citing Brown, 331 F. App’x
at 70); see also Manigault, 318 F. App’x at 8 (holding that, even without a signed agreement, an
employee’s continued employment after receiving notice of an arbitration policy constitutes
assent to such an agreement); DuBois v. Macy’s E. Inc., 338 F. App’x 32, 33 (2d Cir. 2009)
(holding that plaintiff’s continued employment after receiving notice of the Solutions InSTORE
Program and the lack of evidence that he submitted an Election Form constituted agreement to
mandatory arbitration).
The Court recognizes that the Second Circuit’s decisions holding that continued
employment constitutes assent to an arbitration agreement, as well as similar district court cases,
appear to involve circumstances where the plaintiff’s employment continued beyond the opt-out
period, if any. See, e.g., Pierre, 2016 WL 11652066, at *4 (holding that plaintiff, who worked at
Macy’s for more than three years, “manifested her assent to arbitrate through her conduct when
she failed to opt out of arbitration during the prescribed time period” (citation omitted)); Feroce
v. Bloomingdale’s Inc., No. 12-CV-5014 (SJF) (GRB), 2014 WL 294199, at *6 (E.D.N.Y. Jan.
24, 2014) (holding that plaintiff consented to arbitration by failing to opt out “after being informed
of the Program and opt out procedure through multiple channels,” and “continu[ing] to work at
Bloomingdale’s” beyond the opt-out period); Teah, 2011 WL 6838151, at *4-5 (holding that
plaintiff who worked at Macy’s for more than three months manifested his assent “by declining
to opt out of Step 4 after being informed through multiple channels of his ability to do so”); Brown
v. Coca-Cola Enters., Inc., No. 08-CV-3231, 2009 WL 1146441, at *7 (E.D.N.Y. Apr. 28, 2009)
(Bianco, J.) (finding that, based on plaintiff’s continued employment for more than nine months
after implementation of mandatory arbitration, plaintiff accepted the terms of the agreement to
arbitrate any legal disputes); Gil, 2019 WL 12334706, at *4-5 (finding that plaintiff Martinez’s
continued employment for several years after receiving notice of the arbitration term manifested
assent).
Based on the allegations in the Complaint and Plaintiff’s failure to respond to the present
motion, it is not clear whether Plaintiff continued to be employed after November 8, 2025, just
twelve days after her employment began on October 27, 2025. See Dkt. No. 13-1 ¶ 16; Dkt. No.
1-1 at 5. Accordingly, the relevant question is whether Plaintiff’s failure to opt out of arbitration
within thirty days of her hire constitutes assent to the arbitration agreement within the Solutions
InSTORE Program, even assuming that Plaintiff’s employment ended less than thirty days after
it began.
Ultimately, the undersigned respectfully recommends that the Court find that Plaintiff did
assent to the arbitration agreement by continuing her employment beyond October 27, 2025—the
date that she signed the Acknowledgement Form confirming she received notice of the arbitration
agreement—even if her employment ended within the thirty-day opt-out period. The arbitration
provisions of the Solutions InSTORE Program covered Plaintiff’s employment-related disputes
from the moment she received notice of the provisions—that is, October 27, 2025. See Dkt. No.
13-1 at 35 (“Until and unless an employee chooses to be excluded from arbitration within the
prescribed time frame, the employee is covered by Step 4 – Arbitration.”). Even if Plaintiff’s
employment was terminated by either herself or Bloomingdale’s on or around November 8, 2025,
the twelve-day period of employment was adequate to submit the Election Form if she did not
want to arbitrate. See Clearfield v. HCL Am. Inc., No. 17-CV-1933 (JMF), 2017 WL 2600116,
at *2 (S.D.N.Y. June 15, 2017) (holding that even one day to act to opt out of arbitration upon
plaintiff’s return from medical leave was “sufficient time to opt out had she wanted to do so”).
Moreover, there is no indication that she needed to continue to be employed to have access to or
complete the Election Form. Accordingly, even if her employment ended within the thirty-day
opt-out period, she still could have mailed the Election Form to the Office of Solutions InSTORE
within the thirty days, or by November 26, 2025. Indeed, she could have opted out right after the
November 8, 2025 issue that she alleges gave rise to her claim. Therefore, Plaintiff’s continued
employment—beyond her receiving notice of the arbitration provisions and her failure to opt out
of arbitration for the entire opt-out period—constitute assent to arbitration.
Furthermore, there is plainly adequate consideration for the arbitration agreement, as
Bloomingdale’s and Macy’s argue, due to the mutual promises to arbitrate, the offer of continued
employment, and Bloomingdale’s agreement to pay for a majority of the costs associated with
arbitration. See Dkt. No. 13 at 26-27 (citations omitted); Teah, 2011 WL 6838151, at *5 (citations
omitted). At bottom, there is no material issue of fact with respect to whether an arbitration
agreement existed.
The undersigned therefore respectfully recommends that the Court find that Plaintiff agreed
to arbitrate with Bloomingdale’s and Macy’s.
B. Plaintiff’s Claims Are Within the Scope of the Arbitration Agreement
Courts “resolve any doubts concerning the scope of arbitrable issues in favor of
arbitrability.” Rubinstein, 2025 WL 2773161, at *5 (quoting Daly, 939 F.3d at 421). “In so doing,
[courts] will 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. (quoting Daly,
939 F.3d at 421).
Here, the question of whether the parties agreed to arbitrate is to be decided by the Court,
as the arbitration agreement is silent on this issue. See Davitashvili, 131 F.4th at 117 (“The FAA
provides that the issue of arbitrability should presumptively be resolved by the courts.” (citing BG
Grp., 572 U.S. at 34; 9 U.S.C. § 2)). Bloomingdale’s and Macy’s do not argue otherwise.
The undersigned respectfully recommends that the Court find that Plaintiff’s ADA claims,
whether they be construed as stating discrimination, failure to accommodate, retaliation, or other
claims arising under the ADA, are subject to arbitration. The Solutions InSTORE Program was
promulgated by “Macy’s, Inc. and its subsidiaries and Business Units.” Dkt. No. 13-1 at 34.
Bloomingdale’s is a wholly owned subsidiary of Macy’s. Dkt. No. 2 at 1. According to the Plan
Document, “[e]xcept as otherwise limited, all employment-related legal disputes, controversies, or
claims arising out of, or relating to, employment or cessation of employment, whether arising
under federal, state or local decisional or statutory law . . . , are covered claims and shall be settled
exclusively by final and binding arbitration.” Dkt. No. 13-1 at 38. The Plan Document expressly
states that covered claims include, but are not limited to, claims arising under the ADA. See id.
(“Merely by way of example, [covered claims] include, but are not limited to, claims arising under
. . . the Americans with Disabilities Act”). It is not disputed that Plaintiff’s ADA claims relate to
her employment with Bloomingdale’s, namely regarding an “approved work accommodation
letter” that Plaintiff alleges was not implemented, resulting in her not receiving a work schedule.
See Dkt. No. 1-1 at 5.
Other courts interpreting the Plan Document have similarly concluded that analogous
discrimination, wrongful discharge, and retaliation claims are arbitrable under the Plan Document
as part of the Solutions InSTORE Program. See, e.g., McPherson, 2023 WL 8527462, at *6
(holding that plaintiff was compelled to arbitrate her Title VII discrimination, hostile work
environment, wrongful discharge, and retaliation claims); Pierre, 2016 WL 11652066, at *4
(finding the Plan Document’s arbitration provision covered claims for, among other things,
discrimination, wrongful discharge, and retaliation); Feroce, 2014 WL 294199, at *6 (finding that
the Plan Document’s arbitration provision covered discrimination claims); Teah, 2011 WL
6838151, at *7 (same). Nothing here warrants a different result.
Given that Plaintiff’s claims are within the scope of the arbitration agreement, the
undersigned respectfully recommends that the Court find that Plaintiff’s claims are subject to
arbitration pursuant to the arbitration agreement.
C. Plaintiff’s ADA Claims Are Arbitrable
It is well-settled that arbitration clauses in employment contracts, “other than those of
transportation workers,” are enforceable under the FAA. Pierre, 2016 WL 11652066, at *2
(citations omitted). Courts have “repeatedly held that Congress did not intend that . . . ADA claims
be nonarbitrable.” LeDeatte v. Horizon Media, 571 F. Supp. 3d 72, 76-77 (S.D.N.Y. 2021)
(collecting cases); see also Feuer v. Stoler of Westbury, Inc., No. 20-CV-6094 (JMA) (JMW),
2021 WL 4820605, at *4 (E.D.N.Y. Oct. 15, 2021) (stating that “the Court is unaware of any
authority that precludes arbitration of” plaintiff’s, inter alia, ADA claims on the basis of
congressional intent). And, indeed, the FAA preempts New York law—specifically, New York
Civil Practice Law and Rules (“CPLR”) § 7515—which otherwise prohibits mandatory arbitration
of discrimination claims. See Padmore v. SDH Servs. W., LLC, No. 24-CV-6872 (AMD) (TAM),
2025 WL 2783191, at *10 (E.D.N.Y. Sep. 30, 2025) (collecting cases and holding that,
“[o]bviously, applying [CPLR § 7515] in this context would be inconsistent with the FAA”).
Accordingly, the undersigned respectfully recommends that the Court grant the present
motion and compel arbitration of Plaintiff’s claims against Bloomingdale’s and Macy’s.
D. Defendants’ Motion to Stay the Action
Having recommended that the arbitration agreement is enforceable and that Plaintiff’s
claims against Bloomingdale’s and Macy’s fall within its scope, the undersigned also recommends
a stay of this action pending arbitration. The FAA mandates that a court “shall on application of
one of the parties stay the trial of the action until such arbitration has been had in accordance with
the terms of the agreement.” 9 U.S.C. § 3 (emphasis added). “When a district court finds that a
lawsuit involves an arbitrable dispute, and a party requests a stay pending arbitration, § 3 of the
FAA compels the court to stay the proceeding.” Smith, 601 U.S. at 478.
Here, Bloomingdale’s and Macy’s request a complete stay of this action pending
arbitration. See Dkt. No. 13 at 8. There is no question that Plaintiff’s claims against
Bloomingdale’s and Macy’s should be stayed. There is a question, however, regarding whether
Plaintiff’s claims against the twenty-one non-appearing Defendants should also be stayed or
whether the Court should, instead, grant only a partial stay of this action. Bloomingdale’s and
Macy’s do not address this issue in their motion.
It is undisputed that the non-appearing Defendants are not parties to the arbitration
agreement. It appears, however, from the Complaint and arguments set forth by Bloomingdale’s
and Macy’s that most, if not all, of the non-appearing Defendants are employees, officers, or other
agents of Bloomingdale’s and/or Macy’s, although this is not explicitly stated as to many of the
Defendants. See Dkt. No. 1-1 at 5; Dkt. No. 13 at 12 n.3. The Plan Document states that
“[a]rbitration applies to any and all covered disputes, controversies or claims whether asserted by
the employee against the Company and/or against any employee, officer or other alleged agent of
the Company.” Dkt. No. 13-1 at 38 (emphasis added). On the basis of this provision,
Bloomingdale’s and Macy’s note that, “[t]o the extent the Complaint seeks to assert claims against
other Bloomingdale’s employees, the agreement to arbitrate includes those other employees.” Dkt.
No. 13 at 12 n.3.
While it is true that “signatories to an arbitration agreement may be compelled to arbitrate
claims with a non-signatory” when certain requirements are met, see Greene v. Kabbalah Ctr.
Int’l, Inc., 625 F. Supp. 3d 3, 20 (E.D.N.Y. 2022), there is no indication that the non-appearing
Defendants have been served and they have not appeared in this action. Thus, the non-appearing
Defendants do not seek to compel arbitration. Bloomingdale’s and Macy’s do not further address
this issue in their motion. Accordingly, at this stage in the litigation, the Court need not address
whether the arbitration agreement mandates that Plaintiff’s claims against the non-appearing
Defendants—many of whose relationships to Bloomingdale’s and Macy’s have not been identified
in the record—are subject to arbitration.
Nonetheless, a complete stay is still appropriate. When a court “concludes that some, but
not all, of the claims in the case are arbitrable, it must then decide whether to stay the balance of
the proceedings pending arbitration.” SDJ Invs., LLC v. Collector’s Coffee Inc., No. 21-2070-CV,
2022 WL 17097231, at *2 (2d Cir. Nov. 22, 2022) (quoting JLM Indus., 387 F.3d at 169). “When
‘other persons who are parties to the underlying dispute [are] not [parties] to the arbitration
agreement,’ ‘it may be advisable to stay litigation among the nonarbitrating parties pending the
outcome of the arbitration.’” Id. (quoting Moses H. Cone Mem’l Hosp., 460 U.S. at 20 & n.23).
Whether to stay the entire action is within the court’s discretion “to control its docket.” Id. (quoting
Moses H. Cone Mem’l Hosp., 460 U.S. at 20 n.3).
“In exercising discretion, courts look to factors such as the ‘desirability of avoiding
piecemeal litigation and the degree to which the cases necessitate duplication of discovery or issue
resolution.’” Hawkins, 2025 WL 890476, at *3 (quoting Fasano v. Li, No. 16-CV-8759 (KPF),
2023 WL 6292579, at *14 (S.D.N.Y. Sep. 27, 2023)). “A discretionary stay is particularly
appropriate when there is significant factual overlap between the remaining claims and the
arbitrated claims.” Id. (quoting Katsoris v. WME IMG, LLC, 237 F. Supp. 3d 92, 110-11 (S.D.N.Y.
2017)); see also Duke v. Luxottica U.S. Holdings Corp., 167 F.4th 16, 32 (2d Cir. 2026) (“[S]tay
orders are particularly appropriate if the arbitrable claims predominate the lawsuit and the
nonarbitrable claims are of questionable merit.” (quoting Genesco, 815 F.2d at 856)). “In such
cases, proceeding with litigation against the remaining defendants ‘would invariably implicate
issues common to the claims against the [arbitrating] defendants and affect those defendants’
interests.’” Hawkins, 2025 WL 890476, at *3 (quoting Yost v. Everyrealm, Inc., No. 22-CV-6549
(PAE), 2023 WL 2859160, at *12 (S.D.N.Y. Apr. 10, 2023)); see also Bravo Pizza Enters., Inc. v.
Azizo, No. 23-CV-4540 (HG), 2023 WL 5548372, at *9 (E.D.N.Y. Aug. 29, 2023) (staying claims
not covered by arbitration agreement where “Plaintiff’s breach of contract claim is based on the
same core set of facts as Plaintiff’s [non-arbitrable] claims” (citations omitted)); Kumaran v.
Vision Fin. Mkts., LLC, No. 20-CV-3871 (GHW), 2022 WL 17540669, at *7 (S.D.N.Y. Dec. 6,
2022) (staying claims not covered by parties’ arbitration agreement while arbitration was pending).
Here, the same facts are likely to be at issue in both the litigation with the non-appearing
Defendants and the arbitration with Bloomingdale’s and Macy’s. If Plaintiff were to litigate her
claims against the non-appearing Defendants and concurrently arbitrate her claims against
Bloomingdale’s and Macy’s, there is a risk of duplicative proceedings and inconsistent results. It
is also possible that certain findings in the arbitration may affect the facts that may be offered in
the litigation of the claims against the non-appearing Defendants. A stay of all proceedings,
therefore, best serves the interests of all parties in this action, particularly where, as here, there is
no indication that the non-appearing Defendants have been properly served.
The undersigned therefore respectfully recommends that the Court grant the request of
Bloomingdale’s and Macy’s to stay this action pending the arbitration.
IV. Conclusion
For the reasons set forth above, the undersigned respectfully recommends that the Court
grant the present motion to compel arbitration and stay this action pending the outcome of
arbitration.
A copy of this Report and Recommendation is being electronically served on counsel.
Bloomingdale’s and Macy’s are directed to serve a copy of this Report and Recommendation on
Plaintiff by overnight mail and first class mail at the following address:
Kimberly Persaud
723 Essex Street (PH)
Brooklyn, New York 11208
Bloomingdale’s and Macy’s are also directed to serve a copy of this Report and
Recommendation on Plaintiff via email at: kimberly.persaud@email.phoenix.edu.
Defendants shall file proof of service by April 24, 2026.
Any objections to this Report and Recommendation must be filed within fourteen (14) days
after service of this Report and Recommendation. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72(b)(2); see also Fed. R. Civ. P. 6(a), (d) (addressing computation of days). Any requests for an
extension of time for filing objections must be directed to Judge Gonzalez. The “failure to object
timely to a [magistrate judge]’s report operates as a waiver of any further judicial review of the
[magistrate judge]’s decision.” Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008)
(quoting Small v. Sec’y of Health & Hum. Servs., 892 F.2d 15, 16 (2d. Cir. 1989)). Indeed, “a
party’s failure to object to any purported error or omission in a magistrate judge’s report waives
further judicial review of the point.” Stevens v. Duquette, No. 22-1571, 2024 WL 705954, at *1
(2d Cir. Feb. 21, 2024) (quoting Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003)). Accordingly,
the failure to file objections within this timeframe or specify the particular issues to be reviewed
precludes further review of this Report and Recommendation. See Thomas v. Arn, 474 U.S. 140,
145 (1985) (“a party shall file objections with the district court or else waive right to appeal”);
Frego v. Kelsick, 690 F. App’x 706, 709 (2d Cir. 2017) (appellate review barred because plaintiff
failed to object to the magistrate judge’s report and recommendation pertaining to the claim on
which plaintiff now seeks to appeal (citing Caidor, 517 F.3d at 604)).
Dated: Brooklyn, New York SO ORDERED.
April 23, 2026
/s/ Joseph A. Marutollo
JOSEPH A. MARUTOLLO
United States Magistrate Judge