In Clay v. FGO Logistics, Inc., 2024 WL 4335791 (D.Conn. Sept. 27, 2024), the court, inter alia, provided instructive guidance regarding when a claim “accrues” under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA). In sum, plaintiff’s retaliation claim (but not his hostile work environment and sexual harassment claims) accrued after the EFAA’s effective date.
From the decision:
While Defendants’ motions to compel arbitration were pending, the Second Circuit issued a ruling regarding claim accrual under the EFAA. Olivieri v. Stifle, Nicolaus & Co., Inc., 112 F.4th 74 (2d Cir. 2024). The plaintiff in Olivieri alleged that she was sexually harassed by her supervisor from June 2018 to September 2020 and that her employer retaliated against her after she complained in September and October 2020, including by transferring her to another office and passing her over for various promotions. Id. at 77-82. She left for maternity leave in October 2021 and returned to the company on March 10, 2022—one week after the EFAA’s effective date. Id. at 82. Upon her return, the defendants allegedly continued to engage in retaliatory acts—including “purposely le[aving her] out of meetings and ke[eping her] in the dark about company news, including early dismissals”; “depart[ing] from [the company’s] ordinary practice [by] dock[ing] her PTO in 15-minute increments when she stepped away from her desk for a doctor’s appointment”; and continuing a “persistent pattern of changing her role in response to her complaints of sexual harassment and misconduct.” Id. at 92.
The Second Circuit explained that “the term ‘accrue’ means the same thing under the EFAA as it does in the statute-of-limitations context.” Id. at 78. Most claims are subject “to the normal knew-or-should-have-known accrual date.” Id. at 88. But claims that are “composed of a series of separate acts that collectively constitute one unlawful practice”—like hostile work environment claims—are subject to the continuing violation doctrine, which “lays out an alternative framework for evaluating accrual.” Id. (alteration and internal quotation marks omitted). These claims “accrue and reaccrue with each successive act that is part of the singular unlawful practice.” Id. at 88. The Second Circuit concluded that the retaliatory conduct that Olivieri allegedly experienced after returning from maternity leave was “similar in kind to the retaliatory conduct she experienced before her leave, such that it [was] part of the same course of discriminatory conduct [underlying] her retaliation-based hostile work environment claims.” Id. at 92 (alteration and internal quotation marks omitted). Accordingly, it held that her retaliation-based hostile work environment claims accrued after the EFAA’s effective date and affirmed the district court’s order denying the motion to compel arbitration. Id.
As noted, the parties have submitted supplemental briefs addressing Olivieri. Defendants argue that Olivieri is distinguishable from the present case, see ECF No. 58; ECF No. 61; ECF No. 63, while Clay contends that—like the retaliation-based hostile work environment claim in Olivieri—“the last act alleged in furtherance of [his sexual harassment, hostile work environment, and retaliation claims] occurred … after the EFAA was enacted,” ECF No. 57 at 3.
Clay’s argument fails as to his sexual harassment claim and hostile work environment claims. These claims are “[b]ased upon the conduct of … Soldi and executives at Defendants FGO and COSTCO who condoned Soldi’s words and actions,” as well as his employer’s failure “to protect him from this pervasive harassment” despite his complaints. ECF No. 1-1 ¶¶ 32, 34, 35. This discriminatory conduct predated the EFAA—Soldi was terminated by Costco on November 4, 2021, and the last alleged act of harassment by Soldi occurred on November 30, 2021. Id. ¶¶ 16.47, 16.50. Though Clay alleges that “he was fired in retaliation for complaining about the hostile work environment and discrimination he experienced” in April 2022—after the EFAA’s effective date—this post-EFAA conduct is not “similar in kind” to the pre-EFAA conduct that forms the basis of these claims. Because the retaliatory conduct that Clay alleges occurred after the EFAA’s effective date cannot be said to be a part of the “same course of discriminatory conduct” as his pre-EFAA allegations, Clay’s hostile work environment and sexual harassment claims did not accrue after the EFAA’s effective date.
But Clay’s retaliation claim did. The potentially retaliatory conduct on which this claim is based is his termination from FGO on April 29, 2022—two months after the EFAA’s effective date. ECF No. 1-1 ¶¶ 19, 21, 38. And the Second Circuit in Olivieri made clear that claims of retaliation resulting from a report of sexual harassment are “sexual harassment disputes” as defined by the EFAA:
The EFAA defines a “sexual harassment dispute” as “a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.” 9 U.S.C. § 401(4) (emphasis added). This Court has recognized that retaliation for reporting discrimination is reasonably related to the underlying discrimination, such that a plaintiff who exhausts a discrimination claim with the EEOC may also pursue a claim for retaliation. Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001) (internal quotation marks and citation omitted). Under similar reasoning, retaliation resulting from a report of sexual harassment is “relat[ed] to conduct that is alleged to constitute sexual harassment.” 9 U.S.C. § 401(4); see Johnson, 657 F. Supp. 3d at 551 n.13, 559 (reaching same conclusion).
112 F.4th at 92.6Though Clay’s retaliation claim may be “intertwined” with his sexual harassment and hostile work environment claims, it is a “separate and independent cause[ ] of action.” Miner v. Town of Cheshire, 126 F. Supp. 2d 184, 192 (D. Conn. 2000). Thus, the EFAA applies to his retaliation claim even though the other two claims accrued before March 3, 2022. See, e.g., Molchanoff v. SOLV Energy, LLC, No. 23-cv-653, 2024 WL 899384, at *3-4 (S.D. Cal. Mar. 1, 2024) (concluding that the EFAA did not apply to plaintiff’s sexual assault claim but did apply to her retaliation claim based on her complaints of sexual assault); see also Miner, 126 F. Supp. 2d at 192. (“[W]here, as here, [a plaintiff] has alleged retaliatory acts within the limitations period, [she may] proceed with a retaliation claim even if she is unable to allege or establish claims of sexual harassment within the limitations period.”). I conclude that the EFAA applies to Clay’s retaliation claim but not his sexual harassment and hostile work environment claims.
The court further explained that the EFAA exempts from arbitration plaintiff’s entire case, noting both the statutory language, as well as Congressional intent to override the FAA’s principle that in cases involving both arbitrable and non-arbitrable claims, “the former must be sent to arbitration even if this will lead to piecemeal litigation.”