In Zeng v. Ellenoff Grossman & Schole LLP, 23-CV-10348 (JGLC), 2024 WL 4250387 (S.D.N.Y. Sept. 19, 2024), the court, inter alia, upheld a Report & Recommendation (R&R) recommending that defendant’s motion to compel arbitration of plaintiff’s retaliation claim be denied.
In sum, plaintiff Ming Zeng alleges that she was sexually harassed by a coworker while employed by Defendants Ellenoff Grossman & Schole LLP and Douglas S. Ellenoff and that she was fired for reporting that harassment.
The court held that the arbitration agreements at issue are void under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“EFAA”).
From the decision:
Courts in this district have 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).” Johnson v. Everyrealm, Inc., 657 F. Supp. 3d 535, 559 (S.D.N.Y. 2023) (emphasis added).
Defendants object to the R&R’s conclusion that the arbitration agreements are null and void as to Plaintiff’s retaliation claim, which Defendants argue is an overly broad application of the EFAA, and contend further that the R&R misread Mera v. SA Hosp. Grp., LLC, 675 F. Supp. 3d 442 (S.D.N.Y. 2023). Def. Obj. at 2. Mera affirmed that certain claims were too “far afield” so as “to have been improperly joined with a claim within the EFAA so as to enable them to elude a binding arbitration agreement.” 675 F. Supp. 3d at 447–48 (quoting Johnson, 657 F. Supp. 3d at 562 n.23). First, Defendants are incorrect in claiming that Mera abandoned the view in Johnson. The court in Mera analyzed a circumstance – whether wage and hour claims under the Fair Labor Standards Act and the New York Labor Law related to the sexual harassment dispute – that Johnson did “not have occasion … to consider.” Id. at 448 (quoting Johnson, 657 F. Supp. 3d at 562 n.23). Second, and more importantly, Defendants have not provided any argument as to how Plaintiff’s retaliation claim is not related to her claims regarding sexual harassment. Nor could they. Plaintiff claims that she was retaliated against for complaining about sexual harassment. ECF No. 10-2 ¶¶ 46–55. These claims – unlike wage and hour disputes unrelated to harassment claims – fall under the EFAA.
Based on this, the court denied defendant’s motion to compel arbitration.