Judge: Joseph Lipner, Case: 24STCV01303, Date: 2024-06-04 Tentative Ruling

Case Number: 24STCV01303    Hearing Date: June 4, 2024    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendants Starbucks Corporation and Starbucks LLC (collectively, “Starbucks”) move for an order compelling Plaintiff Jocelyn Munoz (“Plaintiff”) to submit her claims against Starbucks to binding arbitration and staying this action pending arbitration.

The Court tentatively DENIES Starbucks’ motion.

The Court solicits argument about any case law that examines whether the full range of harassment as defined by California Government  Code, § 12940, subd. (j)(4)(C), is subject to the Ending the Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.  The Court is particularly interested in any case law examining the issue.

Background

This is an employment case.

Plaintiff was employed by Starbucks beginning in February 2023 and ending on July 13, 2023. Starbucks is a nationwide coffee chain.

Plaintiff signed an arbitration agreement with Starbucks on February 15, 2023 (the “Arbitration Agreement”). (Opposition at p. 5:6-8.)

Plaintiff alleges that Starbucks and Defendant Sarah Chavez harassed Plaintiff based on Plaintiff’s sex, gender, disability, and pregnancy. (Complaint at p. 4:14-18.) Plaintiff alleges that she repeatedly complained about harassment and retaliation. Plaintiff alleges that she was constructively terminated on July 13, 2023.

Plaintiff filed this action on January 18, 2024, raising claims for (1) wrongful termination in violation of public policies; (2) medical leave retaliation; (3) medical leave discrimination; (4) paid sick leave discrimination; (5) paid sick leave retaliation; (6) denial of pregnancy leave; (7) gender and pregnancy discrimination; (8) retaliation for requesting and using accommodations for disabilities; (9) failure to engage in a timely good faith interactive process to determine accommodations for disability; (10) failure to reasonably accommodate disabilities; (11) disability discrimination; (12) gender and pregnancy harassment; (13) harassment based on sex/gender; (14) harassment based on disability; (15) retaliation for opposing violations of FEHA; (16) failure to prevent and stop harassment, discrimination, and retaliation; and (17) whistleblower retaliation.

Request for Judicial Notice

The Court grants the parties’ requests for judicial notice of public records.

Discussion

The parties agree that Plaintiff signed an arbitration agreement with Starbucks.

Plaintiff argues that the Arbitration Agreement is voided by the Ending the Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, 9 U.S.C., section 402 (“EFAA”), which is now part of the Federal Arbitration Act (“FAA”).

“Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute … no predispute arbitration agreement or predispute joint-action waiver 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, subd. (a).)

“An issue as to whether this chapter applies with respect to a dispute shall be determined under Federal law. The applicability of this chapter to an agreement to arbitrate and the validity and enforceability of an agreement to which this chapter applies shall be determined by a court, rather than an arbitrator … irrespective of whether the agreement purports to delegate such determinations to an arbitrator.” (9 U.S.C., § 402, subd. (b).)

Under FEHA, it is prohibited “[f]or an employer … because of sex, gender, gender identity, gender expression, age, sexual orientation, [or] reproductive health decisionmaking … to harass an employee[.]” (Gov. Code, § 12940, subd. (j)(1).)

The parties agree that Plaintiff’s gender and sex harassment claims are based on inappropriate comments made about her pregnancy allegedly made by Defendant Sarah Chavez. Plaintiff alleges that Chavez made comments about Plaintiff’s pregnancy symptoms, asked if Plaintiff intended to keep the baby, expressed frustration when Plaintiff said she would keep the baby, expressed frustration that Plaintiff required time off because of pregnancy symptoms, and indicated that she did not know how to support Plaintiff during Plaintiff’s pregnancy.

Starbucks argues that “[s]ex discrimination is discriminating against someone because of his or her sex, while sexual harassment is unwelcome sexual advances or other verbal or physical contact of a sexual nature.” (Friel v. Mnuchin (E.D. Pa. 2020) 474 F.Supp.3d 673, 692.) Starbucks argues that “none of the allegations supporting Plaintiff’s sex/gender harassment claim are sexual in nature. In that regard, Plaintiff does not allege Chavez’s actions were sexually motivated, that Chavez or anyone else engaged in unwelcomed sexual advances, or that Plaintiff was subjected to a sexual assault. Accordingly, Plaintiff cannot demonstrate that her allegations constitute the type of ‘sexual harassment’ claims that the EFAA was intended to protect.” (Reply at p. 4:9-14.)

“For purposes of this subdivision, ‘harassment’ because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire.” (Gov. Code, § 12940, subd. (j)(4)(C).)

Whether Chavez’s alleged comments were sexually motivated is irrelevant. Plaintiff alleges that Chavez harassed her because of reproductive decisionmaking and pregnancy status, which necessarily pertains to reproductive activity. The alleged comments therefore constitute harassment based on sex and sexual harassment.

Friel, cited by Starbucks and quoted above, interpreted the meaning of sexual harassment under Title VII of the Civil Rights Act, and not FEHA. (Friel, supra, 474 F.Supp.3d 673, 692.) Although the issue of whether the EFAA applies is decided under federal law (9 U.S.C., § 402, subd. (b)), the EFAA explicitly incorporates state law when determining what constitutes a sexual harassment dispute. (9 U.S.C., § 402, subd. (a).)

 Starbucks argues that the EFAA only prevents arbitration of the covered claims, and does not apply to the entire case. The act’s plain language prevents the enforcement of arbitration agreements “with respect to a case” that “relates to [a] sexual assault dispute or [a] sexual harassment dispute.” (9 U.S.C., § 402, subd. (a) [emphasis added].) Thus, even if a plaintiff brings both covered and non-covered claims in the same case, the act prevents the mandatory arbitration of all of the plaintiff’s claims. While Starbucks points to legislative materials that it argues show an intent to limit the EFAA’s protection to claims relating to sexual assault or harassment, it is still the final language of the statute that controls – and the final language that Congress approved extends coverage to the entire case.

Starbucks argues that the sex/gender harassment claim can be severed from the arbitration agreement. While severability is generally the law regarding arbitration agreements, the EFAA’s language covering an entire case relating to a sexual harassment dispute forbids severance in this situation. The only harassment that Plaintiff alleges is by Chavez, relating to her pregnancy. The only retaliation she alleges is based on her reports of Chavez’s conduct. Plaintiff’s alleged constructive termination is based on Starbuck’s alleged lack of receptivity to Plaintiff’s complaints about Chavez’s conduct. The entire case is thus intertwined with Plaintiff’s sex harassment claims. Severance is not proper here.

The Court therefore denies Starbucks’ motion.