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August 5, 2004.


The opinion of the court was delivered by: DAVID HURD, District Judge



  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 ("FMLA").

  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 then appears:
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, 2003.

  This action was filed on April 8, 2004, followed by defendant's motion ...

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