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Fontaine v. Interstate Management Company, LLC

United States District Court, D. Vermont

January 9, 2020



          Christina Reiss, District Judge United States District Court

         Plaintiff Ashley Fontaine brings this action against Defendant Interstate Management Company, d/b/a Trader Duke's Restaurant & Lounge, alleging three state law claims arising from her employment with Defendant: (1) sexual harassment in violation of 21 V.S.A. § 495h, (2) discrimination based on sex in violation of 21 V.S.A. § 495, and (3) retaliation for reporting sexual harassment in violation of 21 V.S.A. § 495. Plaintiff seeks compensatory, emotional distress, and punitive damages, as well attorney's fees and costs.

         On September 12, 2019, Defendant moved to compel arbitration and to stay the proceedings under the Federal Arbitration Act ("FAA") on the grounds that Plaintiff entered into a valid arbitration agreement in which she agreed to arbitrate harassment, discrimination, and retaliation claims. (Doc. 17.) Plaintiff filed an opposition on September 23, 2019, arguing that the arbitration agreement is procedurally and substantively unconscionable. Defendant filed a reply on October 4, 2019, at which time the court took the pending motion under advisement.

         Plaintiff is represented by John C. Mabie, Esq. Defendant is represented by Christopher B. Kaczmarek, Esq., Eric D. Jones, Esq., and Hilary K. Detmold, Esq.

         I. Allegations in the Complaint.

         In October of 2018, Defendant, a foreign limited liability company with its principal place of business in Arlington, Virginia, hired Plaintiff, a resident of Saint Albans, Vermont, as a banquet chef for its restaurant in South Burlington, Vermont. Plaintiff reported directly to Food and Beverage Director Gary Smith and Executive Chef Tony Anderson.

         Plaintiff alleges that Mr. Anderson sexually harassed her during the course of her employment by, among other things, calling her "Baby," "Baby Girl," "Babe," "Hun," and "Honey" despite her requests for him to stop. (Doc. 7 at 2, ¶ 10.) She asserts he "frequently made physical contact with [her] when it was not necessary that he do so," by "plac[ing] his hand on [her] back while speaking to her and slowly drag[ging] it away as he walked away," even though Plaintiff made clear that his "touching was not welcome." Id. at 2, ¶¶ 14-15. Mr. Anderson also allegedly showed Plaintiff a photograph of a nude woman and told her that a necklace gifted to her by her deceased grandmother "ma[de] [her] boobs look sexy." Id. at 3, ¶ 25.

         Plaintiff complained to Mr. Smith, General Manager Lainnie LaCroix, and a human resource representative identified only as "Kathy." Id. at 3, ¶ 28. Following the necklace comment, Kathy provided Mr. Anderson with a verbal warning that "a female employee had complained that [Mr. Anderson] was 'making comments about breasts and butts.'" Id. at 4, ¶ 32. Because Plaintiff was the only female employee in the kitchen, Mr. Anderson allegedly identified her as the source of the complaint and "became aggressive and rude." Id. at 4, ¶ 34. Shortly thereafter, Plaintiff asserts that she requested time off from Mr. Smith and Mr. Anderson following a miscarriage. Mr. Anderson told several employees about this request.

         On May 31, 2019, Plaintiff tendered her resignation. She filed suit against Defendant in Vermont Superior Court on July 15, 2019, and Defendant removed the case to this court on July 31, 2019. Defendant asked Plaintiff to agree to arbitrate her claims pursuant to the Arbitration Agreement, and Plaintiff refused to do so.

         II. The Arbitration Agreement.

         On January 30, 2019, Defendant presented Plaintiff with a three-page Mutual Agreement to Arbitrate (the "Arbitration Agreement") "as a condition of her employment" with Defendant. (Doc. 17-2 at 2, ¶ 7.) Every page of the Arbitration Agreement is identified as a "Mutual Agreement to Arbitrate" in its bottom left-hand corner. On the first page of the Arbitration Agreement, a block of bolded text in English and Spanish provides:

This Mutual Agreement to Arbitrate is a contract and covers important issues relating to Your rights. It is Your sole responsibility to read it and understand it. You are free to seek assistance from independent advisors of Your choice outside the Company or to refrain from doing so if that is Your choice.

(Doc. 17-3 at 2.) The next paragraph states:

The Mutual Agreement to Arbitrate ("Agreement") is between You (identified in the signature block below and referred to in this Agreement as "You," "I," "Me", or "Employee") and Interstate Hotels & Resorts and its affiliates and subsidiaries (hereafter the "Company"). The Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs this Agreement, which evidences a transaction involving commerce. All disputes covered by this Agreement will be decided by a single arbitrator through final and binding arbitration an ...

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