Opinion
3:23-cv-623-AR
11-14-2023
JESSICA HIX and JADE LEE ANDERSON, Plaintiffs, v. DAVE & BUSTER'S MANAGEMENT CORPORATION, INC. dba DAVE & BUSTER'S, Defendant.
FINDINGS AND RECOMMENDATION
JEFF ARMISTEAD, MAGISTRATE JUDGE
On March 3, 2022, Congress enacted the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA or Act). Pub. L. No. 117-90, 136 Stat. 26, 28 (2022) (codified at 9 U.S.C. §§ 401-02). The EFAA, whose passage is widely attributed to the #MeToo movement, allows sexual assault and sexual harassment cases to be brought in court, despite arbitration agreements to the contrary. Plaintiffs Jessica Hix and Jade Lee Anderson signed arbitration agreements with their employer, defendant Dave & Buster's Management Corporation, Inc. (D&B), and they rely on the EFAA to assert claims for a sexually hostile work environment, in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e, et seq., and Oregon's statutory parallel, ORS §§ 659A.001, et seq. (Compl. ¶¶ 48-77, ECF No. 1.) Anderson relies on the EFAA also to assert claims for retaliation, in violation of Title VII and ORS § 659A.030. (Id.)
See, e.g., Imre S. Szalai, #MeToo's Landmark, Yet Flawed, Impact on Dispute Resolution: The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, 18 NW. J. L. & SOC. POL'Y 1, 2 (2023) (“[The EFAA] is also the most important federal legislation to arise thus far from the #MeToo movement.”); Amy B. Wang, Senate passes bill to end forced arbitration in sexual assault, harassment cases, The Washington Post (Feb. 10, 2022, 2:59 PM), https://www.washingtonpost.com/politics/2022/02/10/senate-sexual-assault-forced-arbitration/ (“The #MeToo movement helped spur momentum and bipartisan support for the [EFAA].”); David Horton, The Limits of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, 132 YALE L. J. FORUM 1, 2 (2022) (noting that “commentators cited [the EFAA] as a milestone in the #MeToo movement” (quotation marks omitted)).
In its motion that seeks to enforce the arbitration agreements under the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16, and dismiss this action, D&B contends that the EFAA does not apply to plaintiffs' claims, for three reasons. First, the EFAA provides that “no predispute arbitration agreement . . . shall be valid or enforceable,” 9 U.S.C. § 401(a), and D&B argues that Anderson signed her arbitration agreement after, not before, occurrence of the hostile work environment she alleges. Second, the EFAA provides that it applies only to “any dispute or claim that arises or accrues on or after the date” of the EFAA's enactment, Pub. L. No. 117-90, 136 Stat. 26, 28 (2022), and in D&B's view, plaintiffs' dispute occurred before the EFAA's enactment on March 3, 2022. Third, the EFAA applies to a case that “relates to ... the sexual harassment dispute,” and D&B contends that Anderson's retaliation claims do not relate to the claims of sexual harassment. (Def.'s Mot. to Compel Arb. and Dismiss at 1-2, 8-9, ECF No. 9.)
The parties' arguments require statutory interpretation of the EFAA. The court, having done that, is unpersuaded by D&B's contention that it must compel Hix's and Anderson's claims to arbitration. D&B's Motion to Compel Arbitration and Dismiss should be denied.
BACKGROUND
The court recites the relevant facts as they are alleged in plaintiffs' Complaint and the undisputed facts related to the parties' arbitration agreements. Plaintiffs Hix and Anderson were employed as prep cooks by defendant D&B at its restaurant in Happy Valley, Oregon. Hix began working at D&B in September 2021. (Compl. ¶ 8.) She signed D&B's arbitration agreement on August 28, 2021. (Decl. of Kerri Walters at 7, ECF No. 10.) Anderson worked for D&B from January 2022 until July 2022. (Compl. ¶¶ 21, 36.) She signed D&B's arbitration agreement on March 9, 2022. (Decl. of Kerri Walters at 12.) Both agreements call for the arbitration of any claims related to plaintiffs' employment at D&B. (Id. at 4, 9.)
Plaintiffs allege that, during their employment, they experienced a hostile work environment consisting of sexually inappropriate and unwanted advances, comments, and jokes from male coworkers. They contend that D&B was or should have been aware of the sexually hostile work environment and allowed that environment to persist. (Compl. ¶ 2.)
Beginning in December 2021, Hix faced sexually inappropriate comments from her coworker, Reid. Reid constantly discussed his sex life with Hix during her training. He told Hix that he had an open relationship with his wife and that another woman he was seeing was “crazy in bed.” (Id. ¶ 9.) Reid regularly recited “that's what she said” and “my dick” jokes to Hix. When Anderson began her training in January 2022, Reid subjected her to similar comments. He used phrases such as “Fuck that bitch!” and “She is crazy!” Reid boasted to plaintiffs that he had multiple girlfriends and that he once took two of his girlfriends on a date together, which turned out fine because he was “screwing both of them.” (Id. ¶ 22.)
In late March 2022, D&B hosted a large banquet party at its Happy Valley location. Hix and Anderson were cleaning up after the banquet ended when the floor manager, Traver, approached them. While the three were alone, Traver made sexual jokes, including a joke about incest: “Did you know they made the reverse cowgirl illegal in Tennessee because you never turn your back on family?” (Id. ¶ 23.)
The next month, while Anderson was working in the kitchen making the rub for a pork belly dish, her coworker Tyler approached her from behind. Tyler whispered in Anderson's ear, “Oh yeah, you like rubbing that meat, don't you?” When Anderson turned around, Tyler looked her in the eyes and repeated, “Oh yeah, you like rubbing that meat, don't you?” before walking away. (Id. ¶ 24.) Anderson went to find the kitchen manager, Gray, and assistant general manager, Jordi, to report the incident. Hix, who had witnessed the encounter, went with her. Gray and Jordi instructed Anderson to make a written statement, and Anderson did so. (Id. ¶ 13.)
On June 25, 2022, plaintiffs were dicing tomatoes on the prep line when they were approached by Juarez, a corporate trainer. (Id. ¶¶ 14, 25.) Juarez began criticizing their work. He then put his own cutting board up against Hix's while he diced vegetables and told plaintiffs how to perform tasks that they had already performed correctly. (Id. ¶ 14.) Anderson left the kitchen to inform Gray and Jordi that Juarez was exhibiting sexist behavior and belittling plaintiffs' work. Anderson also reported that she and Hix both “felt very uncomfortable working with [Juarez] while he continued to criticize their work.” (Id. ¶¶ 14, 25.) Jordi responded that Juarez was a corporate trainer and was only doing his job. (Id. ¶ 25.) When Anderson returned to the kitchen, Juarez shouted at her, demanding she fetch him a bucket of ice. (Id. ¶ 16, 25.)
Later, while standing between Hix and Anderson, Juarez said, “My homie has three cases of Plan B pills for $300 bucks a pop.” (Id. ¶ 25.) He went on to tell plaintiffs that the Roe v. Wade decision being overturned days earlier was “no big deal.” He said, “I just put my dick in her pussy, and I don't give a fuck what happens to the bitch or baby afterwards.” (Id. ¶ 15, 25.)Anderson left the kitchen to find Gray and the bar manager, Cruz, to report Juarez's comments. She told Gray and Cruz that Juarez's comments made her uncomfortable and that she refused to work with someone who was creating a sexually hostile work environment. Gray informed Anderson that he would talk to Juarez and try to change his schedule-but that it would take some time. Gray did not ask Anderson to make a written statement. Because she felt uncomfortable working around Juarez, Anderson left work for the rest of the day. (Id. ¶ 26.)
Plaintiffs' complaint has a discrepancy as to the order of events on June 25. The order of events described above reflects the facts as alleged in Anderson's factual background but differs from the order of events described in Hix's factual background. (Compl. ¶¶ 16, 25.)
The following day, June 26, Anderson again had to work alongside Juarez on the prep line. She, Hix, and another coworker decided to talk to Pacheco, their general manager. They informed Pacheco of Juarez's sexually inappropriate comments from the day before and that Anderson had already reported the incident to Gray and Cruz. (Id. ¶ 27.) Pacheco told them that she would talk to Juarez, but that there was “not much” she could do to improve the work environment. (Id. ¶¶ 16, 27.) Pacheco said that she could not alter Juarez's schedule, the trio would still have to work with Juarez, and they should accept that and focus on work. (Id. ¶ 27.)
Two days later, on June 28, Anderson called D&B's Human Resources Department (HR) because there had been no response to her complaints about Juarez. (Id. ¶ 28.) She reported Juarez's comments to the HR representative. She complained that management had taken no action in response to her previous complaints and had failed to ask her for a written statement about Juarez's conduct. The HR representative assured Anderson that HR would contact Pacheco and Gray to instruct them to provide Hix and Anderson with the appropriate paperwork to submit a written statement. Despite that assurance, plaintiffs never received the statement paperwork, and HR never followed up with Anderson. (Id. ¶ 29.)
On July 6, while Anderson was searching for a charger cord, her coworker Traver told her, “Calm down, calm down. Calm your sexy self down.” (Id. ¶ 30.) Anderson went to Pacheco's office to report Traver's comment. Pacheco told Anderson, “If you want you can write a statement. You don't have to, though.” Pacheco also advised Anderson that her sexual harassment reports should not be so frequent. Believing that a written statement would not be taken seriously, Anderson decided not to make a written statement that day. (Id. ¶¶ 31-32.)
The next day, Anderson informed Gray that she needed a mental health day because of the sexual harassment she had experienced in the workplace. Although Gray had received two previous reports of sexual harassment from Anderson, he told her that he was unaware of any sexual harassment; that no statement had been made; and that, although he knew that Anderson recently left work early, he did not know the reason why. (Id. ¶ 33.)
On July 8, Anderson returned to work to make written statements about Juarez's and Traver's comments. Pacheco informed Anderson that she had already spoken with Traver about the July 6 encounter. (Id. ¶ 34.) After Anderson made her two written statements, she saw Pacheco bring Juarez into her office to speak with him for over an hour. Anderson believed that was the first time anyone had confronted Juarez about her earlier complaint. That day, Anderson again worked alongside Juarez on the prep line. Throughout the shift, Juarez glared at her and walked very close to her. Feeling intimidated, Anderson hid in the women's restroom to get away from him. (Id. ¶ 35.)
Anderson again informed Pacheco that she felt uncomfortable working with Juarez and requested to leave for the day. Pacheco told Anderson that the June 25 incident was already under investigation and that Anderson's discomfort was not a good reason to leave work. Pacheco said that she was starting to see a pattern with Anderson's reports of sexual harassment and told Anderson that she needed to get a doctor's note for anxiety, shorten her shifts and hours, and request accommodations for her anxiety before she could return to work. (Id.) Anderson has not been scheduled to work any hours at D&B since that day. (Id. ¶ 36.)
Plaintiffs filed charges of discrimination with the Equal Employment Opportunity Commission and the Oregon Bureau of Labor and Industries in July 2022. They received right to sue letters in April 2023, and filed their complaint in this court the same month. (Id. ¶ 45-46.)
LEGAL STANDARD
The FAA “requires courts to enforce privately negotiated agreements to arbitrate, like other contracts, in accordance with their terms.” Volt Info. Scis., Inc. v. Bd. of Trs. of LelandStanford Jr. Univ., 489 U.S. 468, 478 (1989). Under the FAA, agreements to arbitrate are “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract or as otherwise provided in chapter 4.” 9 U.S.C. § 2.
In determining whether to enforce an arbitration agreement under the FAA, courts do not review the merits of the dispute. Rather, the role of the court is limited to determining “(1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue.” Cox v. Ocean View Hotel Corp., 533 F.3d 1114, 1119 (9th Cir. 2008).
The EFAA amends the FAA to allow survivors of sexual assault or sexual harassment to invalidate arbitration agreements in certain situations:
[A]t 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). The term “predispute arbitration agreement” is defined in the EFAA as “any agreement to arbitrate a dispute that had not yet arisen at the time of the making of the agreement.” Id. § 401(1). The term “sexual harassment dispute” is defined in the EFAA as a “dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.” Id. § 401(4). Whether the EFAA applies to a dispute is determined under federal law. Id. § 402(b). A “court, rather than an arbitrator,” determines the applicability of the EFAA to an arbitration agreement and the enforceability of an agreement to which the EFAA applies. Id. The EFAA is effective as of the date of its enactment, March 3, 2022, and applies “with respect to any dispute or claim that arises or accrues on or after” that effective date. EFAA, Pub. L. No. 117-90, 136 Stat. 26, 28 (2022).
DISCUSSION
A. Whether Plaintiff Anderson's Arbitration Agreement was “Predispute”
D&B asserts that Anderson signed her arbitration agreement after, rather than before, the alleged hostile work environment and, therefore, her agreement is not a “predispute arbitration agreement,” which is a requirement under the EFAA. 9 U.S.C. § 402(a) (“[A]t the election of the person alleging conduct constituting a sexual harassment 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.”). D&B contends that the dispute between it and Anderson had already “arisen” when she signed D&B's arbitration agreement on March 9, 2022. Before that date, Anderson experienced unwelcome sexual comments, and, according to D&B, a sexual harassment dispute arises when any conduct alleged to constitute sexual harassment occurs. (Def.'s Reply at 9-10, ECF No. 18.) Anderson responds that D&B's interpretation of “predispute” is too narrow. Rather, because sexual hostile work environment claims require a showing of “pervasiveness” coupled with evidence of complaints about the conduct and deficient responses, she contends that her dispute with D&B did not arise until after she signed her arbitration agreement. (Pls.' Resp. at 17, ECF No. 15.)
The EFAA provides no definition of “dispute,” and neither the Supreme Court nor the Ninth Circuit has defined “dispute” as used in the EFAA. To discern congress's intent as to the meaning of “dispute,” the parties' disagreement requires interpretation of the statute, which begins with the text of the statute and the ordinary meaning of the statute's words. Leocal v. Ashcroft, 543 U.S. 1, 8-9 (2004). The court must “interpret the words consistent with their ordinary meaning at the time Congress enacted the statute.” SeeWis. Cent. Ltd. v. United States, 138 S.Ct. 2067, 2070 (2018)). Ordinary meaning is clarified by consulting dictionary definitions and looking at how the terms were defined “at the time [the statute] was adopted.” United States v. Carter, 421 F.3d 909, 911 (9th Cir. 2005). The Ninth Circuit has looked to a variety of dictionaries when interpreting the ordinary meaning of a term. See United States v. Maciel-Alcala, 612 F.3d 1092, 1096 (9th Cir. 2010) (comparing definitions in the American Heritage, Oxford English, and Merriam Webster's Collegiate dictionaries).
The apt definition for “dispute” in Webster's Third New Int'l Dictionary 655 (unabridged ed. 2002) is “to contend in argument : argue for or against : DEBATE <disputing with opposing firms over what constituted ethical trade practices>.” Similarly, in American Heritage Dictionary 522 (5th ed. 2016), “dispute” is defined as a “verbal controversy; a debate.” “Dispute” ordinarily means the existence of an argument or a debate-that is, two parties having or expressing conflicting viewpoints. A “predispute arbitration agreement,” accordingly, means an arbitration agreement that is entered into before two parties have engaged in debate or controversy. That interpretation forecloses D&B's contention that a dispute arises merely when some conduct alleged as sexual harassment has occurred.
District courts interpreting the term “dispute” in the EFAA have adopted differing interpretations. Some have said that a dispute does not arise until the employee has commenced proceedings against the employer in some forum. See, e.g., Hodgin v. Intensive Care Consortium, Inc., Case No. 22-81733-cv, 2023 WL 2751443, at *2 (S.D. Fla. Mar. 31, 2023) (holding that dispute arose “when [the plaintiff] filed Charges of Discrimination against her employer with the EEOC,” because at that point plaintiff was “in an adversarial posture with her employer”); Silverman v. DiscGenics, Inc., Case No. 2:22-cv-00354-JNP-DAO, 2023 WL 2480054, at *2 (D. Utah Mar. 13, 2023) (holding that dispute arose “when the plaintiffs initiated proceedings” before state's labor division). Another, taking the approach advocated by D&B, concluded that a dispute arises when the conduct underlying the alleged sexual harassment occurs. Barnes v. Festival Fun Parks, LLC, Case No. 3:22-CV-165, 2023 WL 4209745, at *10 (W.D. Pa. June 27, 2023).
Here, with that understanding in mind, no facts suggest that Anderson and D&B were in a dispute when Anderson signed her arbitration agreement on March 9, 2022. Although the Complaint alleges that Hix and Anderson both received unwelcome sexual comments from a coworker before March 9, it does not allege that either of them reported the conduct to management or initiated any proceedings against D&B before that date. According to the Complaint, the first time that either Hix or Anderson reported sexual harassment to management was in April 2022, which is after Anderson signed the arbitration agreement. (Compl. ¶¶ 13, 24.) And Plaintiffs did not initiate any proceedings against D&B until July 2022, when they filed charges of discrimination with the appropriate state and federal agencies. (Id. ¶¶ 45-46.)
On this motion to dismiss, the court need not determine at what point a dispute arose between Anderson and her employer. It is enough to conclude that her dispute with D&B could not have started any earlier than April 2022, when she first reported to D&B management that she was experiencing sexual harassment. Based on the facts alleged, that is the earliest that there could have been a controversy between Anderson and her employer related to the sexual harassment. Because the dispute arose after Anderson signed her arbitration agreement, that agreement is “predispute” and therefore covered by the EFAA.
B. Whether Plaintiffs' Disputes or Claims Arose or Accrued before March 3, 2022
The EFAA applies “with respect to any dispute or claim that arises or accrues on or after [March 3, 2022].” EFAA, 136 Stat. at 28. D&B argues that the EFAA does not apply to plaintiffs' claims because “the alleged hostile work environment arose before the effective date of the Act.” (Def.'s Mot. at 6 (capitalization omitted).) In its view, because sufficient conduct alleged to constitute a hostile work environment occurred before March 3, 2022, plaintiffs could have brought their claims before that date. Accordingly, D&B argues, the disputes arose and the claims accrued before the EFAA's effective date. Plaintiffs contend that their claims did not accrue until after March 3, 2022, because they continued to experience sexual harassment after that date. (Pls.' Resp. at 12.)
1. Plaintiffs' claims accrued after March 3, 2022.
“Hostile environment claims are different in kind from discrete acts.” Nat'l.R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002). Discrete acts include termination, failure to promote, and refusal to hire. Id. at 114. “[N]on-discrete acts,” on the other hand, include offensive comments, name-calling, insults, and glaring. Porter v. Cal. Dep't of Corr., 419 F.3d 885, 893 (9th Cir. 2005); see alsoMorgan, 536 U.S. at 115-16. “[I]n direct contrast to discrete acts, a single [nondiscrete act] may not be actionable on its own.” Morgan, 536 U.S. at 115. It is the cumulative effect of various nondiscrete acts that forms the basis for a hostile work environment claim. Id.; Porter, 419 F.3d at 892-93 .
Accordingly, the “unlawful employment practice” underlying a hostile work environment claim “cannot be said to occur on any particular day.” Morgan, 536 U.S. at 115. Rather, a hostile work environment occurs “over a series of days or perhaps years.” Id. For that reason, the Supreme Court held in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), that a statute of limitations is not triggered upon the occurrence of conduct sufficient to support a hostile work environment claim. Id. at 117-18 (“It is precisely because the entire hostile work environment encompasses a single unlawful employment practice that we do not hold, as have some of the Circuits, that the plaintiff may not base a suit on individual acts that occurred outside of the statute of limitations unless it would have been unreasonable to expect the plaintiff to sue before the statute ran on such conduct.”). Instead, the applicable statute of limitations is triggered when the last act that is part of the hostile environment occurs, “so long as each act is part of the whole.” Id. at 118.
D&B argues that the reasoning of Morgan is unhelpful in resolving its motion, because that case addressed whether claims were timely, and “[t]he only question here is whether [p]laintiffs' claims are arbitrable.” (Def.'s Reply at 8.) But whether the claims must be arbitrated depends on when those claims accrued. And the default rule is that the statute of limitations begins to run when a claim accrues. Rotkiske v. Klemm, 140 S.Ct. 355, 360 (2019); Green v.Brennan, 578 U.S. 547, 556 (2016). That rule applies to Title VII cases. Green, 578 U.S. at 556. Accordingly, the Morgan court's determination about when an unlawful employment practice “occurs” for the purpose of applying the statute of limitations also defines when a sexual harassment claim alleging such a practice “accrues” for the purpose of determining whether the EFAA applies.
Consistent with Morgan, courts interpreting the EFAA have concluded that sexual harassment claims accrue on the date of the “last act that is part of the hostile work environment.” Walters v. Starbucks Corp., 623 F.Supp.3d 333, 337-38 (S.D.N.Y. 2022); Olivieri v. Stifel, Case No. 21-cv-0046, 2023 WL 2740846, at *6 (E.D.N.Y. Mar. 31, 2023); see alsoNewcombe-Dierl v. Amgen, Case No. CV 22-2155-DMG, 2022 WL 3012211 (C.D. Cal. May 26, 2022) (“[The plaintiff's] claims accrued when the adverse employment action occurred and she was injured, which was no later than November 12, 2021, the date of her termination.”).
In support of its argument that the EFAA cannot be applied to a claim that includes conduct that occurred before March 3, 2022, D&B points to several cases in which courts have declined to apply the EFAA to claims with underlying conduct before that date. In each of those cases, however, all conduct alleged to constitute sexual assault or sexual harassment occurred before March 3, 2022. Lopez v. Biotronik, Inc., Case No. 3:21-cv-1868-JR, 2022 WL 18587756, at *1, *3 (D. Or. Dec. 20, 2022), report and recommendation adopted, 2023 WL 1778655 (D. Or. Feb. 6, 2023) (holding that EFAA did not apply where all allegedly discriminatory conduct occurred in 2020 or earlier, culminating in the plaintiff's termination in July 2020); Zinsky v. Russin, Case No. 2:22-cv-547, 2022 WL 2906371, at *3 (W.D. Pa. July 22, 2022) (same, where all alleged sexual assault conduct occurred by August 2021); Marshall v. Hum. Servs. of Se. Tex., Inc., Case No. 1:21-cv-529, 2023 WL 1818214, at *1, *3 (E.D. Tex. Feb. 7, 2023) (same, where all conduct contributing to sexual harassment claim occurred between 2015 and 2018, culminating in the plaintiff's termination in 2018); Woodruff v. Dollar Gen. Corp., Case No. CV 21-1705-GBW, 2022 WL 17752359, at *3 (D. Del. Dec. 19, 2022) (same, where all problematic conduct occurred in 2018 and 2019 and plaintiff resigned in 2019); Newcombe-Dierl, 2022 WL 3012211, at *5 (same, where plaintiff was terminated in November 2021); Steinberg v. Capgemini Am., Inc., Case No. CV 22-489, 2022 WL 3371323, at *3 (E.D. Pa. Aug. 16, 2022) (same, where alleged sexual harassment began in September 2019 and plaintiff was fired in July 2020); Preciado v. Concorde Career Colls., Inc., Case No. 3:22-cv-1745-JR, 2023 WL 3742981, at *1, *4 (D. Or. Apr. 19, 2023) report and recommendation adopted, 2023 WL 3737882 (D. Or. May 31, 2023) (same, where all alleged sexual battery occurred in 2021).
None of the cases on which D&B relies addressed conduct straddling the EFAA's effective date. They therefore do not support the argument that a sexually hostile work environment claim accrues as soon as there is sufficient conduct to support a claim of sexual harassment. Rather, the cases are consistent with the view that a sexual harassment claim accrues on the date of the last act that is part of the alleged hostile work environment.
The court concludes that plaintiffs' sexual harassment claims did not accrue until the date of the last act that was part of the hostile work environment alleged by them. Hix's sexual harassment claim did not accrue until at least June 2022. (See Compl. ¶ 15 (alleging Juarez made unwelcome sexual comments to both Hix and Anderson on June 25, 2022).) Anderson's claim did not accrue until at least July 2022. (See id. ¶ 35 (alleging Juarez glared at Anderson and invaded her personal space on July 8, 2022).) The EFAA therefore applies to plaintiffs' hostile work environment claims.
D&B does not appear to argue that, even if plaintiffs' claims accrued after March 3, 2022, plaintiffs are required to arbitrate their claims to the extent they are based on conduct that occurred before that date. In any case, that argument would be unavailing. Reid allegedly harassed plaintiffs before March 3; other D&B employees allegedly harassed plaintiffs after that date. Whether Reid's conduct should be considered together with conduct after the EFAA's effective date depends on whether his conduct and the later conduct are “parts of the same unlawful employment practice.” Porter, 419 F.3d at 892 (quoting Morgan, 536 U.S. at 122). Whether separate acts are part of the same unlawful employment practice depends on “whether the earlier and later events amounted to ‘the same type of employment actions, occurred relatively frequently, or were perpetrated by the same managers.'” Porter, 419 F.3d at 893 (quoting Morgan, 536 U.S. at 120). Reid's objectionable conduct before March 3, 2022, included sexual jokes, descriptions of his sex life, and the use of offensive terms for women. (Compl. ¶ 22.) The complained-of conduct after that date included sexual jokes, sexually charged comments, descriptions of sexual activity, and the use of offensive terms for women. (Id. ¶¶ 23-25, 30.) Nearly all the problematic conduct alleged by plaintiffs, both before and after March 3, was “of an unwelcome sexual nature.” Porter, 419 F.3d at 894. And that conduct is alleged to have occurred often. (See Compl. ¶¶ 9-35 (alleging nondiscrete acts in December 2021 and January, March, April, June, and July 2022.).) Although the conduct before and after March 3 involved different employees, (id. ¶¶ 1216, 22-35), Reid's conduct was the same type of sexually inappropriate commentary as much of the later conduct, and therefore constitutes part of the same unlawful employment practice. See Porter, 419 F.3d at 894. Accordingly, plaintiffs are not required to arbitrate their claims, even as those claims relate to Reid's conduct before March 3, 2022.
2. Plaintiffs' disputes with D&B arose after March 3, 2022.
When arguing about the EFAA's effective date and whether the EFAA applies to plaintiffs' hostile work environment claims, the parties either concentrate on when those claims accrued, or fail to draw a distinction between “arises” and “accrues.” (Pls.' Resp. at 10-16; Def.'s Reply at 4-8.) The court has resolved the issue by determining whether plaintiffs' claims accrued before March 3, 2022. Importantly, however, the court notes that the EFAA applies if either plaintiffs' “claims . . . accrue[d]” or their “disputes . . . [arose]” on or after the effective date. EFAA, 136 Stat. at 28; Hodgin, 2023 WL 2751443, at *2. Those events may occur at different times. Barnes, 2023 WL 4209745, at *10 (“In separating and distinguishing ‘dispute' and ‘claim' by placing them in the disjunctive, Congress provided a spectrum relative to the [EFAA]'s applicability.”).
For the reasons the court discusses earlier, plaintiffs' disputes with D&B arose after the EFAA's effective date. See supra Section A (defining “dispute” and noting that there could not have been a dispute before plaintiffs either complained to management or began proceedings against D&B, the earliest of which did not occur until April 2022). That conclusion separately warrants application of the EFAA to plaintiffs' claims.
3. The EFAA applies to both state and federal claims.
Neither party argues that the court must perform a separate analysis under state law to determine when plaintiffs' state-law claims accrued. However, because D&B seeks to compel the state claims to arbitration, the court addresses whether its foregoing analysis applies to plaintiffs' state-law claims.
To begin with, the court notes that “whether [the EFAA] applies with respect to a dispute shall be determined under Federal law.” 9 U.S.C. § 402(b). Accordingly, whether the “dispute or claim [arose or accrued] on or after [March 3, 2022],” is determined under federal law, even for claims brought under state law. EFAA, 136 Stat. at 27-28.
Even under Oregon law, the state-law claims accrued at the same times as did the federal claims. Plaintiffs assert state-law hostile work environment claims under ORS § 659A.030 (Compl. ¶ 64), and “Oregon courts look to federal cases construing Title VII for guidance in construing ORS 659A.030.” H. K. v. Spine Surgery Ctr. of Eugene, LLC, 305 Or.App. 606, 611 (2020) (citing Mains v. II Morrow, Inc., 128 Or.App. 625, 634 (1994) (noting that ORS § 659.030, the predecessor to ORS § 659A.030, was modeled after Title VII)). The court is unaware of any Oregon appellate court decision defining when a hostile work environment claim accrues under ORS § 659A.030. “In the absence of state court authority, the court applies the rule of Morgan to plaintiff[s'] state law hostile work environment claim[s].” Parra v. Hous. And Cmty. Serv. Agency of Lane Cnty., Case No. CV 05-6385-HO, 2007 WL 2401743, at *13 (D. Or. Aug. 16, 2007) (citing Morgan, 536 U.S. 101 at 122).
Like the Title VII claims, the state-law hostile environment claims accrued when the last act contributing to the claims occurred, which was after March 3, 2022.
C. Anderson's Retaliation Claim
D&B asserts that Anderson's retaliations claims are not covered by the EFAA. It points to the EFAA's definition of “sexual harassment dispute,” which is a “dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.” (Def.'s Mot. at 9); 9 U.S.C. § 401(4). Anderson alleges that D&B by way of Pacheco retaliated against her, and D&B argues that Pacheco's alleged conduct is not sexual harassment. (Def.'s Mot. at 9.) Anderson responds by pointing to 9 U.S.C. § 402(a), which provides that the EFAA applies to a predispute arbitration agreement “with respect to a case” that “relates to the... sexual harassment dispute.” That is, Anderson argues that the EFAA's application is not limited to claims that constitute sexual harassment disputes but extends to the entire case that includes a sexual harassment dispute. (Pls.' Resp. at 18-19.) Anderson further argues that her retaliation claim is a sexual harassment dispute, and that the EFAA therefore applies even under D&B's more restrictive reading of the statute's applicability. (Id. at 19-21.)
Anderson relies on District Judge Paul A. Engelmayer's decision in Johnson v.Everyrealm, Inc., Case No. 22-cv-6669, 2023 WL 2216173, at *18 (S.D.N.Y. Feb. 24, 2023), in which he held that “the text of § 402(a) makes clear that its invalidation of an arbitration agreement extends to the entirety of the case relating to the sexual harassment dispute, not merely the discrete claims in that case that themselves either allege such harassment or relate to a sexual harassment dispute (for example, a claim of unlawful retaliation for a report of sexual harassment).” In that case, plaintiff brought racial and pay discrimination claims in addition to sexual harassment claims and, under Judge Engelmayer's holding, those racial and pay discrimination claims were protected by the EFAA because they were part of a case that plausibly alleged sexual harassment claims. Because in this case the court concludes that Anderson's retaliation claims relate to her sexual harassment claims, it need not decide whether the EFAA applies to claims that do not relate to the sexual harassment dispute.
The court agrees with Anderson's alternative argument that her retaliation claim is a “sexual harassment dispute” as defined by 9 U.S.C. § 401(4). D&B provides no authority to support its contention that a claim is only “related to” a sexual harassment dispute if the conduct underlying the claim is perpetrated by the same person or people who created the sexually hostile work environment. In its ordinary usage, the phrase “relating to” in a statute broadens and expresses a broad purpose. Dan's City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 260 (2013) (citing Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383-84 (1992)). Two things are “related” when they are “[b]eing connected; associated,” American Heritage at 1482, or “having relationship : connected by reason of an established or discoverable relation,” Webster's at 1916.
Under both federal and Oregon law, a retaliation claim requires showing that (1) the plaintiff engaged in a protected activity; (2) the defendant subjected the plaintiff to adverse action; and (3) the defendant subjected plaintiff to the adverse action because of the protected activity. Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 506 (9th Cir. 2000); Summerfield v. Or. Liquor Control Comm'n, 366 Or. 763, 782 (2020). Here, Anderson alleges that she was forced out of her job because she engaged in the protected activity of reporting that she was experiencing sexual harassment. A retaliation claim is connected to “conduct that is alleged to constitute sexual harassment,” 9 U.S.C. § 401(4), when reporting that conduct is the alleged cause of the retaliation. Because the retaliation dispute is related to the conduct constituting sexual harassment, it is a “sexual harassment dispute” to which the EFAA applies. SeeEveryrealm, 2023 WL 2216173, at *18 (noting that even if the EFAA applies only to claims related to the sexual harassment dispute, that scope includes retaliation claims). Anderson is not required to submit her retaliation claims to arbitration.
CONCLUSION
For the above reasons, the Motion to Compel Arbitration and Dismiss (ECF No. 9) should be DENIED.
SCHEDULING ORDER
The Findings and Recommendation will be referred to District Judge Marco A.
Hernandez. Objections, if any, are due within fourteen days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.