Judge: Ronald F. Frank, Case: 24TRCV00980, Date: 2024-06-27 Tentative Ruling

Case Number: 24TRCV00980    Hearing Date: June 27, 2024    Dept: 8

Tentative Ruling¿ 

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HEARING DATE:                    June 27, 2024¿¿ 

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CASE NUMBER:                   24TRCV00980

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CASE NAME:                        Rigali v. Pelican Products

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MOVING PARTY:                Defendant Pelican Products

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RESPONDING PARTY:       Plaintiff Monica Rigali

TRIAL DATE:                           None Set  

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MOTION:¿                                  (1) Motion to Compel Arbitration

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Tentative Ruling:                       (1) Argue

Defendant Pelican Products brings this motion to compel arbitration of Plaintiff’s 11-count case arising out of her relatively short-term employment as an executive with Defendant.  Plaintiff has sued not only her former employer but also several of her co-workers for a variety of claimed misconduct, including but not limited to hostile work environment, harassment, retaliation, discrimination, and other tort causes of action.  While Plaintiff does not recall agreeing to arbitrate suits concerning her employment, Defendant’s evidence (objected to by Plaintiff) demonstrates that Plaintiff remotely or digitally executed an arbitration agreement during her on-boarding process.  But the primary thrust of Plaintiff’s opposition to the arbitration motion is that it is claimed to be barred by a recent federal statute, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“EFAA”).  The EFAA amended the Federal Arbitration Act (“FAA”), a statute that generally favors the arbitration of disputes between parties, where the plaintiff has brought a case under that “relate[] to” a “sexual assault dispute or sexual harassment dispute, i.e., “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), 402(a).)

Plaintiff’s First Amended Complaint contains a range of employment-related allegations, not all of which relate to a sexual harassment suit.  For example, she alleges that Pelican had a history of unequal pay between male and female employees, an allegation of sex-based discrimination, not sexual harassment.  She alleges that other executives “refused to accept a female counterpart” as co-equals, again an allegation of discrimination rather than sexual assault or sexual harassment.  She alleges that Defendant MINIARD “undermined Plaintiff’s input, talked down to her, and . . . routinely cancelled the meetings set by Plaintiff,” none of which constitutes sexual harassment.  However, other allegations in the FAC do relate to dispute over sexual harassment.  FAC paragraph 27 alleges that Defendant GYORI shared “sexually explicit content” from an Instagram page that “features women in revealing clothing” as part of another company’s marketing of their products, touting the posing of scantily clad women as “good marketing” that Plaintiff should consider Pelican using in her marketing role with Pelican and projecting that image or those images during a meeting in Pelican’s main conference room in Plaintiff’s presence.  FAC paragraph 29 alleges that several months later, “Plaintiff became informed of a sexual relationship between one of PELICAN’s male executives and his female subordinate,” a relationship Plaintiff alleges to have been known among other executives.  This is an allegation potentially bearing on a hostile work environment claim, which would be relating to a dispute over sexual harassment.

FAC paragraph 30 alleges that in November of 2023, while on a work-related trip to Asia. Defendant Goldberg “made numerous highly inappropriate and explicit comments” to Plaintiff that suggested male executives, like Genghis Khan or other “kings,” could have a sexual relationship with any female employees of their choosing with impunity.  The FAC further alleges Goldberg used vulgar and offensive language to and when speaking about Plaintiff, the only female executive, to other executives.  The FAC also alleges that Pelican terminated Goldberg’s employment a month later, after Plaintiff and other employees had reported his misconduct to the Human Resources department at Pelican.  Paragraph 30 of the FAC alleges that after Goldberg was terminated, Defendant Curleigh “began placing unwarranted scrutiny on Plaintiff’s work product and repeatedly questioned Plaintiff about her time as a female Nike employee during the “Me Too” Movement.”  The Court would like oral argument from Plaintiff as to how questions posed to an executive about how another company handled “me too” issues constitutes sexual harassment.

Pelican argues that Plaintiff’s sexual harassment and hostile environment claims are not plausible because the alleged conduct was not sufficiently severe or pervasive.  At the pleading phase of a suit, it is a challenge for the court to consider all the circumstances that the trier of fact typically has, including the frequency of the discriminatory conduct; its severity, whether it is physically threatening or humiliating, etc., so on an arbitration motion or demurrer the Court must look to the allegations of the complaint to assess those circumstances, whether the misconduct alleges rises to the level of unreasonably interfering with an employee’s work performance, and the sliding scale of severity or seriousness that varies with the pervasiveness or frequency of the clamed misconduct.

The parties dispute whether these allegations are sufficient to characterize the FAC as a case relating to sexual harassment.  Certainly some of these allegations appear to relate to sexual harassment, and clearly others do not.  Given the dearth of caselaw under EFAA, and given the 11 counts alleged in the FAC, it is not clear to the Court whether the sexual harassment nature of a portion of a suit’s allegations are sufficient to bar the parties from arbitrating all of multitude of allegations; whether the Court can or should send some of the claims to arbitration and retain others; whether clams against non-signatories to the arbitration agreement should be sent to arbitration; and whether non-arbitrable claims should be stayed or should proceed in court while arbitrable claims move in a separate arbitration track.

The Court will take oral argument on these issues, consider the cited precedents, and will likely take the case under submission before issuing a final decision on this motion.