The opinion of the court was delivered by: DAVID HURD, District Judge
MEMORANDUM-DECISION and ORDER
Plaintiff Marsha Darrah ("Darrah" or "plaintiff") brings this
suit against defendant Friendly Ice Cream Corporation ("Friendly"
or "defendant"), alleging retaliation and constructive
termination in violation of the Family Medical Leave Act
Friendly has moved to compel arbitration and dismiss the
complaint or stay proceedings, and/or for summary judgment.
Plaintiff opposed. Oral argument was heard on July 9, 2004 at
Utica, New York. Decision was reserved. II. FACTS
The following facts are uncontroverted.
On May 4, 1999, Friendly hired Darrah as an Assistant Manager.
In January 2002, she was promoted to standing General Manager.
Because of her high-risk pregnancy, she declined a November 2002
promotion to full-time General Manager, asking that she remain an
Assistant Manager if and when Friendly located a General Manager
who could relieve her of the standing General Manager duties.
On May 27, 2003, Darrah signed an "Employment Dispute
Resolution Policy and Contract to Arbitrate for Present
Employees" ("the Agreement"). Plaintiff signed the Agreement
right below where it indicated she understood the contract, had
enough time to consider it, had her questions answered to her
satisfaction and would be bound by this contract. The Agreement
contains a two-step dispute resolution process that commences
with an employee's use of an "Open Door Policy" followed by final
and binding arbitration. The Agreement indicates that the
employee will have to pay the filing fee, while the employer will
pay all other administrative costs.
The Agreement states that "both of us agree that . . . we
will settle all claims or disputes about work . . . exclusively
through the Company Open Door Policy, and if this procedure
fails, then by final and binding arbitration. . . ." (Docket No.
6, Attach. 5, Ex. A) (emphasis added). The following paragraph
For example, these disputes include claims under any
statute or common law, like the Age Discrimination in
Employment Act, Title VII of the Civil Rights Act of
1965, as amended, the Americans with Disabilities
Act, the Fair Labor Standards Act, 42 U.S.C. § 1981,
as amended, the Employee Polygraph Protection Act,
the Employee Retirement Increase Security Act, the
National Labor Relations Act, state statutes like
them or statutes and common law on work or hiring,
the Law of Contract, the Law of Tort, claims for malicious prosecution, wrongful firing, wrongful
arrest or imprisonment, intentional or negligent
infliction of emotional distress or defamation. Id.
FMLA was not included.
The Agreement also provided that Darrah had "21 days to
consider it," advised her that she "may want legal advice from an
attorney before signing" it, and also that she had the right to
"withdraw [her] consent to this Policy and Contract within seven
(7) days from the day" she signed it. Id. Plaintiff did not
withdraw her consent within this time frame. Friendly had the
exclusive right to change or end the contract upon giving sixty
days notice to the employee.
On July 2, 2003, just over a month after signing the Agreement
and just over a week after going into premature labor, Darrah
requested and Friendly approved a leave of absence for the high
risk birth of her baby. On September 10, 2003, subsequent to the
birth of her child, plaintiff returned to work.
Upon returning to work, Darrah alleges that Friendly and/or its
employees (1) failed to restore her to her previous position of
Assistant Manager, or even an equivalent position; (2) reduced
her hours, altered her work schedule, and diminished her work
duties and responsibilities; and (3) harassed, embarrassed, and
humiliated her in a manner that was intentionally fashioned to
cause severe emotional distress.
After Darrah's return to work, co-workers told her that the
General Manager, Ken Viazzi ("Viazzi"), had told them that she
was demoted from her Assistant Manager position. Another
Assistant Manager, in the presence of several co-workers and
regular customers, removed and threw away Darrah's name plaque at
the front of the restaurant that listed her as an assistant
manager. Upset by this situation, on September 17, 2004,
plaintiff met with Viazzi and told him that she was "exercising [her] rights under
Friendly's `Open Door Policy.'" (Docket No. 9, ¶ 27). She
requested that "he review [her] post-leave work status and
treatment by management." Id. Viazzi responded to the request
by laughing and stating that she "was being hormonal." Id. ¶
28. Due to Viazzi's failure to respond to her complaints, about a
week later she requested a meeting with the District Manager,
George Wutkee ("Wutkee"). Wutkee responded that these matters
should be exclusively addressed by the General Manager, Viazzi.
On October 31, 2003, plaintiff received a telephone call from
Viazzi stating that Wutkee "was letting [her] go as an Assistant
Manager[,]" which was her pre-FMLA leave position, and that she
could continue to work only as a waitress, which position
commanded reduced hours and pay. Id. ¶¶ 31-32. Darrah claims
she was constructively terminated by Friendly's on December 24,
This action was filed on April 8, 2004, followed by defendant's