govinfo:USCOURTS-ohsd-2_24-cv-00377-0

1
IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF OHIO 
EASTERN DIVISION 
 
MICHELLE R. SCOGGINS,  :    
: Case No. 2:24-cv-00377 
:               
  Plaintiff,   : Chief Judge Algenon L. Marbley          
: Magistrate Judge Chelsea M. Vascura   
v .       :    
     :  
MENARD, INC.     : 
d/b/a Midwest Manufacturing, et al.,       : 
      :         
  Defendants.   : 
         
OPINION & ORDER 
 This matter is before this Court on Defenda nts Menard, Inc. and Bill Nelson (collectively, 
“Defendants”)’s Motion to Compel Arbitration and Dismiss, or Alternatively Stay Litigation 
Pending Arbitration. (ECF No. 7). For the reasons set forth below, this Court DENIES the Motion.  
I. BACKGROUND 
Plaintiff Michelle Scoggins began her career at Defendant, Menard, Inc. (“Menard”) in 
February 2021 working as a forklift driver. (ECF  No. 2 at 2). Plaintiff eventually became a 
supervisor, and remained employed with Menard until her termination in April 2023. (Id. at 2–3). 
Following her dismissal, Plaintiff filed suit in state court alleging that, throughout her time working 
for Menard, she experienced mistreatment and discrimination by her superiors and plant managers. 
(Id.). Specifically, Plaintiff alleges an incident of  harassment in late 2021 in which her Assistant 
Plant Manager, Defendant Nelson, slammed a door in her face while disparaging her for being a 
woman. (Id. at 2). According to Plaintiff, Defendant Nelson stated: “what am I supposed to hold 
it open for you because you are a woma n? Is it too heavy for you? All you have to do is turn the 
handle.” (Id.). Plaintiff reported the incident to Menard’s human resources department, but it did 
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not take any action in response. (Id.). Weeks later, Defendant Nelson allegedly yelled at Plaintiff, 
attempted to interfere with her work, intimidate d her, and followed her out  of the office while 
yelling, to the point that a third employee had to intervene to de-escalate the situation. (Id. at 3). 
Plaintiff also reported this incident to Human Resources. (Id.). Plaintiff alleges that she continued 
to experience harassment for the remaining duration of her employment and that she continued to 
report instances to Human Resources, to no avail. ( Id.). She seeks relief for this conduct by way 
of six claims against Menard and two claims ag ainst the Assistant Plant Manager, Bill Nelson 
alleging state and federal retaliation, state law sex discrimination and hara ssment, and disability 
discrimination in violation of the Americans with Disabilities Act and state law. (Id.).1  
After Defendants removed the state action to this Court, (ECF No. 1), Defendants filed the 
present Motion requesting this Court to compel ar bitration for all claims and dismiss the civil 
action based on the arbitration agreement in Plaintiff’s employment contract. (ECF No. 7). In the 
alternative, Defendants reque st an order staying the ma tter pending arbitration. ( Id.). 
Accompanying their motion, Defendants provided a declaration confirmi ng Plaintiff signed the 
arbitration agreement on the first day of her em ployment with Menard. (E CF No. 7-1). Plaintiff 
opposes arbitration, conceding the relevance and general enfo rceability of the arbitration 
agreement as to Menard but asking this Court to deny the Motion as to Defendant Bill Nelson. 
(ECF No. 8 at 5–6). Plaintiff argues that this Court cannot compel arbitration for the claims against 
Bill Nelson, as the language of the relevant arbitration agreement shows no intention to include 
supervisors and thus extends th e contract only to Menard. ( Id. at 5–7). Defenda nts responded in 
 
1 Plaintiff’s briefing identifies the fifth claim as “Count V” and also identifies the sixth claim as “Count V.” To be 
clear, there are six total claims. The fifth count refers to the first item labeled “Count V” whereas the sixth count 
refers to the second item labeled “Count V.” 
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turn that Defendant Nelson is covered by the ar bitration agreement as an employee of Menard. 
(ECF No. 11). This matter is now ripe for this Court’s review.  
II. LAW AND ANALYSIS 
A. The Arbitration Agreement’s Applicability to Defendant Bill Nelson 
Evaluating whether to grant a motion to comp el arbitration requires four distinct 
determinations: 
[F]irst, [the court] must determine whethe r the parties agreed to arbitrate; second, 
it must determine the scope of that agreement; third, if federal statutory claims are 
asserted, it must consider whether C ongress intended those claims to be 
nonarbitrable; and fourth, if the court concludes that some, but not all, of the claims 
in the action are subject to arbitration, it must determine whether to stay the 
remainder of the proceedings pending arbitration. 
 
Glazer v. Lehman Bros., Inc., 394 F.3d 444, 451 (6th Cir. 2005). 
Plaintiff does not dispute that she and Menard agreed to arbitrate, but argues that only her 
claims against Menard are arbitr able. (ECF No. 8). As such, sin ce the validity of the arbitration 
agreement as to the claims against Menard is not in dispute here, this Court need not make these 
determinations as to Menard. Instead, this Court turns to the disputed issue: whether the arbitration 
agreement is equally enforceabl e as to the claims against De fendant Nelson as a non-signatory. 
Plaintiff argues the agreement covers Menard and Plaintiff only, such that the agreement does not 
extend to third party non-signatories like Defend ant Nelson, while Defendant argues Defendant 
Nelson is entitled to enforce the agreement as an employee of Menard under Ohio law. 
The Federal Arbitration Act (“FAA”), whic h governs the enforceabi lity of arbitration 
provisions, was enacted to revers e centuries of common-law hostili ty to arbitration agreements. 
Scherk v. Alberto-Culver Co., 417 U.S. 506, 511 (1974); 9 U.S.C. §§ 1–16. Since its passage, both 
the Supreme Court and the Sixth Circuit have ma de clear that issues concerning the scope of 
arbitration should be resolved in light of the strong federal policy in favor of arbitration. See Moses 
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H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25 (1983); Stout v. J.D. Byrider, 228 
F.3d 709, 714 (6th Cir. 2000) (citing Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 
473 U.S. 614, 626 (1985)).  
Section 2 of the FAA provides th at written arbitration agreements are “valid, irrevocable, 
and enforceable, save upon such grounds as exist at law or in equity for the revocation of a 
contract.” Arthur Andersen LLP v. Carlisle , 556 U.S. 624, 629–30 (2009) (citing Volt Info. Sci., 
Inc. v. Board of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 478 (1989)). In the context of 
arbitration agreements, this se ction requires courts “to place such agreements upon the same 
footing as other contracts.” Id. Section 3 entitles litigants in fe deral court to a st ay of any action 
that is “referable to arbitrati on under an agreement in writing.” 9 U.S.C. § 3. So, federal courts 
look to state law “concerning the validity, revocability, and enforceability of contracts generally” 
to determine whether a contract is bi nding under § 2 or enforceable under § 3. Arthur Andersen 
LLP, 556 U.S. at 631 (citing Perry v. Thomas, 482 U.S. 483, 493, n. 9 (1987)).  
“As a general proposition, a party to an acti on cannot be required to arbitrate a dispute 
between itself and a second party unless those pa rties have previously agreed in writing to 
arbitration.” Panzica Constr. Co. v. GRE Ins. Group, 8th Dist. No. 79931, 2002-Ohio-2023, ¶ 16. 
But “a litigant who was not a party to the releva nt arbitration agreement may invoke § 3 if the 
relevant state contract law allows him to enforce the agreement.” Gifford v. Northwood Healthcare 
Grp., LLC, No. 2:22-CV-4389, 2023 WL 2923498, at *2 (S.D. Ohio Apr. 10, 2023) (citing Arthur 
Andersen LLP, 556 U.S. at 632). Therefore, this Court looks  to Ohio state contract law to assess 
whether Plaintiff’s arbitration agreement with Menard applies to Defendant Nelson as a non-
signatory.  
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Ohio courts recognize that when ordinary principles of contract and agency law require, a 
non-signatory agent may enforce an arbitration agreement between a plai ntiff and the agent’s 
principal. Rivera v. Rent A Center, Inc. , 8th Dist. Cuyahoga No. 101959, 2015-Ohio-3765, ¶ 20. 
In other words, “when nonparties to an arbitration agreement are employees of a party who is a 
signatory to the arbitration agreement, the terms of the arbitration agreement can legitimately be 
applied to the nonparty employees.” Terry v. Bishop  Homes of Copley, Inc. , 2003-Ohio-1468, ¶ 
28 (citing Manos v. Vizar (July 9, 1997), 9th Dist. No. 96 CA 2581-M, at 3–4). The court in Terry 
relied on their previous holding in Manos v. Vizar, wherein the court determined that an employee 
is entitled to enforce an arbitration agreement even in the absence of privity if their actions as agent 
and employee of the employer serve as a basis for their potential liability. Id. at 4. The court found 
that the parties’ basic intent was to provide a single arbitral forum to resolve all potential disputes, 
and therefore held that claims ag ainst non-parties whose interests ar e directly related to those in 
privity of the contract must be read to fall within the scope of the arbitration clause. Id.  
The same is true in the present case. Here, both parties agree that the arbitration agreement 
in Plaintiff’s contract is valid and enforceable as to the claims against Menard. (ECF No. 8). The 
dispute arises out of the applicability of the arbitration agr eement to the claims against non-
signatory Defendant Nelson. (Id.) Defendant Nelson was Plaintiff’s immediate supervisor, and his 
potential liability for Plaintiff’s claims stems from his conduct as an em ployee of Menard. (ECF 
No. 2). As Menard’s employee, Defendant Nelson’s interests are directly in privity with Menard 
and, based on the language of the agreement, Menard is seeking a single arbitral forum to resolve 
all of Plaintiff’s employment disputes . Defendant Nelson is therefor e covered by the arbitration 
agreement at issue here, and Ohio law enables him to enforce it to the same extent as Menard. 
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So at this juncture, Plaintiff could be comp elled to arbitrate all six claims against both 
Defendants. In light of a recent expansion of protection for employees alleging instances of sexual 
harassment and sexual assault in the workplace, however, this Court must first assess whether the 
arbitration agreement is unenforceable.  
B. The “Ending Forced Arbitration of Sexual Assault and Sexual Harassment” Act 
President Biden enacted the Ending Forced Arbitration of Sexual Assault and Sexual 
Harassment Act of 2021 (“EFAA”) as  a direct amendment of the F AA in order to allow persons 
alleging sexual assault and sexual harassment to forgo arbitration at their election. See Johnson v. 
Everyrealm, Inc., 657 F. Supp. 3d 535, 560 (S.D.N.Y. 2023). And the EFAA explicitly refers the 
question of applicability to “a court, rather than an arbitrator[.]”  9 U.S.C. § 402(b); Johnson, 657 
F. Supp. 3d at 550. After this am endment, then, this Court must  determine whether Plaintiff’s 
claims are covered by the EFAA. If the EFAA does, indeed, cover at least one of Plaintiff’s claims, 
this Court must then assess what, if any, impact that has on Plaintiff’s other claims.  
1. “Alleged” a Claim of Sexual Harassment 
As defined by the EFAA, a sexual harassment dispute is a dispute relating to “conduct that 
is alleged to constitute sexual harassment under applicable Federal, Tribal or State law.” 9 U.S.C. 
§ 402(a). This standard necessitates the threshold procedural determination of what showing is 
necessary for a plaintiff to have “alleged” a clai m of such conduct. This is an issue of first 
impression in this district, and this Court does not have the benefit of the parties’ briefing on this 
question. So, two companion cases addre ssing this topic bear mentioning. See Johnson, 657 F. 
Supp. 3d at 560 and Yost v. Everyrealm, Inc., 657 F. Supp. 3d 563, 586 (S.D.N.Y. 2023).  
Both Johnson and Yost sought relief from their former employer, Everyrealm, for a variety 
of claims stemming from the plaintiffs’ resign ation and/or termination, including for sexual 
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harassment under both New York state law and Title VII. Johnson, 657 F. Supp. 3d at 548; Yost, 
657 F. Supp. 3d at 575. Both plaintiffs’ claims therefore teed up the EFAA for consideration, but 
differences in the plaintiffs’ plea dings led to different holdings. In Johnson, “[t]he parties and 
amici dispute[d] the showing that must be made for a complaint to implicate the EFAA”: 
Defendants asserted “the claim must be pled sufficient to sustain a motion to dismiss under Federal 
Rule of Civil Procedure 12(b)(6 )” while Plaintiff’s amici argued that “even a claim of sexual 
harassment that has not been plausibly pled implicates the EFAA[.]” 657 F. Supp. 3d at 551. 
Because the court found Johnson’s state law sexual  harassment claim had been “plausibly pled” 
such that it would survive Rule 12(b)(6) motio n, it did not “resolve whether the EFAA can be 
implicated by a lesser pleading[.]” Id. The court, however, acknowledged that such a question was 
“raised by[] and resolved in” its companion case, Yost. Id.  
As explanation for the slightly differ ent procedural posture, the court in Yost emphasized 
that Yost’s pleadings involved “d istinct (and fewer) factual alle gations relevant to the sexual 
harassment claim” compared to that in Johnson. 657 F. Supp. 3d at 577. After evaluating the 
“threadbare” factual allegations, the court determined that Johnson “f ail[ed] to allege a plausible 
claim of sexual harassment under [the applicable New York law].” Id. at 582. The court therefore 
considered whether “the EFAA still operate[s] to invalidate a binding arbitration agreement” 
where “a plaintiff’s only basis for claiming that a complaint triggers the EFAA are implausibly 
pled claims of sexual harassment[.]” Id. at 583. Acknowledging that “[t]he EFAA’s text does not 
definitely decide this point,” the court said it does not. Id. Rather, in the court’s view, “the term 
‘alleged’ as used in § 401(4) is best read to implicitly incorporate the plausibility standard.” Id. 
Before potentially reaching the question “raised by and resolved in” Yost, this Court must 
first determine whether Plaintiff’s allegations relating to sexual harassment survive the “familiar 
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standards” of Rule 12(b)(6). Johnson, 657 F. Supp. 3d at 551. To survive a 12(b)(6) motion to 
dismiss, a complaint must plead “enough facts to state a claim to relief that is plausible on its face.” 
Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). For a claim to  be facially plausible, “the 
plaintiff pleads factual content that allows the court to draw the reasonable inference that the 
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Based 
on this standard, a complaint is dismissed properly where, as a matter of law, “the allegations in a 
complaint, however true, could not raise a claim of entitlement to relief.” Twombly, 550 U.S. at 
558. When resolving a motion to dismiss, this Court must assume all well-pleaded facts to be true, 
“drawing all reasonable inferences in favor of the plaintiff.” Koch v. Christie’s Int’l PLC, 699 F.3d 
141, 145 (2d Cir. 2012). 
Substantively, Plaintiff alleges sexual harassment and sexual discrimination in violation of 
Ohio Rev. Code § 4112. The Ohio Supreme Court has recognized that discrimination “because of 
... sex” may take either of two forms: “(1) ‘ quid pro quo’ harassment, i.e., harassment that is 
directly linked to the grant or de nial of a tangible ec onomic benefit, or (2) ‘hostile environment’ 
harassment, i.e., harassment that, while not affecting economic benefits, has the purpose or effect 
of creating a hostile or a busive working environment.” Hampel v. Food Ingredients Specialties, 
Inc., 89 Ohio St.3d 169, 729 N.E.2d 726, 732 (Ohio 2000). While the complaint is quiet as to 
which form of discrimination Plaintiff alleges, Plaintiff does not contend that Defendants offered 
any benefit as a result of the alleged harassment.  So, based on the allegations, this Court focuses 
on whether she has alleged a hostile work environment claim.  
Under Ohio law, establishing a claim for se xual harassment base d on a hostile work 
environment requires a plainti ff to show that: (1) the hara ssment was unwelcome; (2) the 
harassment was based on sex; (3 ) the harassing conduct was suffici ently severe or pervasive to 
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affect the terms, conditi ons, or privileges of employment, or any matter directly or indirectly 
related to employment; and (4) either (a) the harassment was committed by a supervisor, or (b) the 
employer, through its agents or supervisory personnel, knew or should have known of the 
harassment and failed to take immediate and appropriate corrective action. Id. 
At this stage, the Court need not assess the merits of the claims asserted. Rather, combining 
the procedural and substantive, the question is wh ether, when considering all allegations as true 
and drawing all reasonable inferences in favor of the Plaintiff, the complaint pleads sufficient facts 
in support of her sexual harassme nt claim to survive a 12(b)(6) motion to dismiss? Applying the 
four elements laid out above, this Court finds it does.  
The filing of Plaintiff’s post-in cident reports to Menard Hu man Resources and the filing 
of the present suit support that Defendant Nels on’s behavior was unwelcome, satisfying the first 
prong of the hostile work environment test. See, e.g., Beach v. Yellow Freight Sys., 312 F.3d 391, 
396 (8th Cir. 2002) (holding plaintiff’s repeated co mplaints to management adequately indicated 
conduct was unwelcome). In ascertaining whether the conduct was based on sex, this Court need 
look no further than Defendant Ne lson’s statement “because you are a woman” in the course of 
his harassment. (ECF No. 2 at 2). Such a statement directly implicates Plaintiff’s sex as a motivator 
for Defendant Nelson’s comments and actions.  
As to whether the harassing conduct was sufficiently severe or pervasive to affect the terms, 
conditions, or privileges of empl oyment, this Court considers Plaintiff’s termination by Menard, 
her work environment—in which she was subjec ted to yelling, interfere nce, and intimidation—
and her ongoing depression. ( Id. at 2–3). This Court finds that each of these were either 
exacerbated by her work environment or affected the conditions of her employment. Finally, while 
Plaintiff is only required to show that either the harassing conduct was by a supervisor or that the 
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employer knew about the harassing conduct, the pres ent matter satisfies both: (1) the harassment 
was committed by Plaintiff’s supervisor Defendant Nelson; and (2) Menard knew or should have 
known of the harassment and failed to take im mediate and appropriate corrective action after 
Plaintiff reported multiple incidences to Human Resources as early as 2021. (See id.).  
Based on this alone, this Court finds that the Plaintiff presents a plausible claim of a hostile 
work environment under state law. And in drawing all reasonable inferences in favor of Plaintiff, 
this Court notes that the complaint references additional non-specific incidents of harassment that 
provide more support for th is determination: beyond the discrete  instances listed, Plaintiff notes 
that “Nelson continued to harass Plaintiff due to  her sex, sexual orientation, and her documented 
depression, and Plaintiff continued to try to re port those instances.” ( Id. at 3). Consequently, 
Plaintiff’s claim is pled such that it would overcome a 12(b)(6) motion to dismiss, which places 
the claim within the substantive purview of the EFAA. 
Circling back to the Johnson versus Yost divide, then, Plaintiff’s case mirrors the former: 
as was the case in Johnson, Plaintiff alleges a plausible claim of sexual harassment even under the 
stricter 12(b)(6) standard, so this  Court need not decide whether such a standard is universally 
appropriate for EFAA claims. See, e.g., Johnson, 657 F. Supp. 3d at 551.  
2. Timing of Plaintiff’s Claims 
Having determined that Plaintiff’s claims are in the substantive net of the EFAA, this Court 
next evaluates whether the claims are temporally  proper. In a historical note, the EFAA provides 
that “[t]his Act, and the amendments made by this Act, shall apply with respect to any dispute or 
claim that arises or accrues on or after the date of enactment of this Act.” Pub. L. 117-90, § 3, Mar. 
3, 2022, 136 Stat. 28. Seemingly, then, the EFAA is not intended to be retroactive. But courts have 
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struggled to identify what exact ly must occur on or after the effective da te of March 3, 2022, to 
bring a claim under the EFAA’s carveout.  
Courts adopting a broader readin g of the historical note have  interpreted the language to 
provide two distinct calculations , either of which is sufficient trigger the EFAA: when the 
“disputes ... arise” and when  the “claims ... accrue.” Hodgin v. Intensive Care Consortium, Inc. , 
666 F. Supp. 3d 1326, 1330 (S.D. Fla. 2023). In their view, this interpretation “is the only way to 
reconcile the redundancy of saying that a claim arises and accrues; to say otherwise would make 
no sense as those dates would be the same.” Id. This Court agrees, so this Court identifies when 
Plaintiff’s dispute arose and when Plaintiff’s claims accrued to determine whether either of these 
occurred on or after the EFAA’s effective date of March 3, 2022.  
a.  Dispute Arises 
While courts disagree about when a dispute “arises” under the EFAA, this Court finds that 
a dispute does not necessarily “arise” at the time of the injury; a dispute requires more than just 
injury.  
 A “dispute” is defined as “[a] conflict or co ntroversy, esp. one that  has given rise to a 
particular lawsuit.” Dispute, Black’s Law Dictionary  (11th ed. 2019). Similar ly, a dispute is “an 
assertion of a right, claim, or  demand on one side, met by contrary  claims or allegations on the 
other,” or “the subj ect of litigation.” Dispute, Black’s Law Dictionary (6th ed. 1990). A dispute 
“arises” when it “originate[s]”  or “come[s] into being.” Arise, Black’s Law Dictionary (11th ed. 
2019); Arise, Merriam Webster’s Collegiate Dictionary (11th ed. 2003). Combined, then, a dispute 
arises when a person “asserts a right, claim, or demand and is met with disagreement on the other 
side.” Famuyide v. Chipotle Mexican Grill, Inc. , No. CV 23-1127 (DWF/ECW), 2023 WL 
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5651915, at *3 (D. Minn. Aug. 31, 2023); Hodgin, 666 F. Supp. 3d at 1330; Silverman v. 
DiscGenics, Inc., No. 22-cv-354, 2023 WL 2480054, at *2 (D. Utah Mar. 13, 2023).  
Guided by the interpretive canon that a “statute should be construed so that effect is given 
to all its provisions, so that no part will be inop erative or superfluous, void or insignificant,” this 
Court turns to the EFAA’s statutory scheme. Corley v. United States , 556 U.S. 303, 314 (2009).  
The EFAA defines a “sexual harassment dispute” as “a dispute relating to conduct that is alleged 
to constitute sexual harassment.” 9 U.S.C. § 401 (emphasis added). If the mere conduct underlying 
a claim alone—the sexual harassment—automatically resulted in a dispute, then the legislature’s 
inclusion of the word “dispute” in the defini tion would be superfluous: a “sexual harassment 
dispute” would mean “conduct that is alleged to constitute sexual harassment.” Id. Under Corley, 
this interpretation is not tenable; construing all pa rts of the EFAA to give effect to each of its 
provisions necessitates that the conduct and the dispute are two distinct events.  
Applied to Plaintiff, even though some of the alleged conduct may have occurred prior to 
the effective date of the EFAA, her dispute did not “arise” when the harassment took place. Rather, 
Plaintiff’s dispute arose well after the conduct. While the conduct giving rise to the dispute began 
in 2021 and continued on, the dispute arose when she filed a complaint with the Ohio Civil Rights 
Commission in April 2023, as this put the parties in an “adversarial posture … in a forum with the 
potential to resolve the claim.” Hodgin, 666 F. Supp. 3d at 1330. Since this filing falls after March 
2022, Plaintiff’s dispute falls within the EFAA’s temporal scope. Such a conclusion is alone 
sufficient under this Court’s interpretation of th e EFAA’s time-related conf ines, but for the sake 
of completeness, this Court also examines when Plaintiff’s claim accrued.  
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b. Claim Accrues 
Plaintiff alleges specific instances of sexual harassment in late 2021 and early 2022, prior 
to the EFAA’s March 3, 2022 effective date. (ECF  No. 2). Drawing reasonable inferences in 
Plaintiff’s favor, however, Plaint iff alleges that the harassing behavior continued into 2022 and 
2023, which this Court interprets as exemplifying a pattern of ongoing harassment throughout the 
pendency of Plaintiff’s employment at Menard. ( Id.). Courts have addres sed similar patterns of 
harassment, finding that  “though a claim accrues when the plai ntiff has a complete and present 
cause of action,” Gabelli v. SEC, 568 U.S. 442, 448–49 (2013), “the date of accrual for a claim … 
depends upon whether the plaintiff alleges isolated violations or a conti nuing violation of civil 
rights laws,” Barnes v. Festival Fun Parks, LLC , No. 3:22-cv-165, 2023 WL 4209745, at *12 
(W.D. Pa. June 27, 2023) (citing Delaware State Coll. v. Ricks , 449 U.S. 250, 257 (1980), and 
Newcombe-Dierl v. Amgen, No. 2:22-cv-155, 2022 WL 3012211, at *5 (C.D. Cal. May 26, 2022)).  
For allegations of isolated violations, “the claim accrues when the plaintiff knows of their 
injuries.” Id. But where the plaintiff is “alleging a cont inuing violation of ci vil rights laws, the 
latest date for accrual is e ither the adverse employment acti on, such as the termination of 
employment, or the pl aintiff’s injury.” Id. So, while Plaintiff allege s conduct beginning prior to 
the passage of the EFAA, Plaintiff contends that the harassment based on her sex continued into 
early 2022 and beyond the effective date of the EFAA through her termination in April 2023. 
Under this reading, the EFAA applies to Plaintiff’s claim.   
3. Plaintiff’s Additional Claims  
The present case includes six intertwined claims all stemming from Plaintiff’s time 
employed by Menard. While not all six counts allege sexual harassment, at least one does, so this 
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Court must consider whether th e EFAA renders the arbitration ag reement unenforceable to all 
claims within this case or just the sexual harassment claim.  
Traditionally, in the context of the FAA, “i f a dispute presents multiple claims, some 
arbitrable and some not, the former must be sent to  arbitration even if this will lead to piecemeal 
litigation.” KPMG LLP v. Cocchi , 565 U.S. 18, 19 (2011). But the EFAA did away with this 
presumption by directly amending the FAA as  opposed to amending a separate statute. See 
Johnson, 657 F. Supp. 3d at 560. The choice to do so “reinforces Congress’s intent to override—
in the sexual harassment contex t—the FAA’s background principle that, in cases involving both 
arbitrable and non-arb itrable claims, the former must  be sent to arbitration.” Id. (citing KPMG, 
565 U.S. at 19). With this legislative intent in mind, the language of the EFAA is clear that a pre-
dispute arbitration agreement is invalid and unenforceable “with respect to a case … relat[ing] to 
the ... sexual harassment dispute.” 9 U.S.C. § 402(a) (emphasis added). The EFAA “thus does not 
limit the invalidation to the claim or claims in which th at dispute plays a part.” Johnson, 657 F. 
Supp. 3d at 558. Standing in contrast to the terms “claim” or “cause of action,” “case” captures the 
legal proceeding as an undivided whole; it does not differentiate among causes of action within it. 
Id. So, the arbitration agreement is unenforc eable against the entirety of Plaintiff’s case, not just 
her claims of sexual harassment. As such, this Court finds the entire case is precluded from 
arbitration under the EFAA. 
III. CONCLUSION 
For the reasons stated herein, the Court DENIES Defendants’ Motion to Compel 
Arbitration and Stay this Case (ECF No. 7) as to all of Plaintiff’s claims. 
  
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IT IS SO ORDERED. 
 
                                            
      ALGENON L. MARBLEY 
      CHIEF UNITED STATES DISTRICT JUDGE 
  
DATED:  August 19, 2024 
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