United States District Court, D. Vermont
ENTRY ORDER GRANTING DEFENDANT'S MOTION TO COMPEL
ARBITRATION AND TO STAY THE PROCEEDINGS (DOC. 17)
Christina Reiss, District Judge United States District Court
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. Â§ 495h, (2)
discrimination based on sex in violation of 21 V.S.A. Â§ 495,
and (3) retaliation for reporting sexual harassment in
violation of 21 V.S.A. Â§ 495. Plaintiff seeks compensatory,
emotional distress, and punitive damages, as well
attorney's fees and costs.
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.
is represented by John C. Mabie, Esq. Defendant is
represented by Christopher B. Kaczmarek, Esq., Eric D. Jones,
Esq., and Hilary K. Detmold, Esq.
Allegations in the Complaint.
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
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.
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.
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.
The Arbitration Agreement.
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
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