United States District Court, S.D. New York
Attorneys for Plaintiff PHILLIPS & ASSOCIATES By: Gregory
Calliste, Jr. Esq. Steven Fingerhut, Esq.
Attorneys for Defendants SEYFARTH SHAW LLP By: Cameron Smith,
Esq. Joanne Seltzer, Esq.
W. SWEET, U.S.D.J.
Tzell Travel, LLC ("Tzell Travel"), Tzell Fifth
Avenue, Ltd. ("TFA"), and Dolores Suarez
("Suarez") (collectively, the
"Defendants") have moved to dismiss the complaint
of the Plaintiff Nancy Mahe ("Mahe" or the
"Plaintiff") (the "Complaint") pursuant
to Federal Rule of Civil Procedure 12(b)(6) or Federal Rule
of Civil Procedure 12(c) and to compel arbitration pursuant
to the Federal Arbitration Act ("FAA"), 9 U.S.C.
§ 1 et seq.
on the conclusions set forth below, Defendants' motion is
granted in part and denied in part. The action is stayed and
the parties are directed to proceed to arbitration.
Complaint sets forth the following allegations, which are
assumed true for the purpose of this motion to dismiss.
See Koch v. Christie's Int'1 PLC, 699 F.3d
141, 145 (2d Cir. 2012).
approximately June 1996 through July 2016, Plaintiff worked
for Defendants as a travel agent. (Compl. ¶¶ 18,
43, Dkt. 4.) While employed by Defendants, Plaintiff
regularly would overhear Suarez, Plaintiffs manager, make
derogatory remarks about Hispanics, African-Americans, and
immigrants. (See Compl. ¶¶ 24-38.)
Plaintiff initially kept silent during such incidents for
fear of retribution or termination. (Compl. ¶ 27.)
2016, after another such incident, Plaintiff emailed Suarez
to inform her that Plaintiff thought Suarez's comments
created a "hostile work environment." (Compl.
¶ 41.). Within forty-five of Plaintiff's email,
Suarez fired Plaintiff. (Compl. ¶ 4 3.)
result of the termination, Plaintiff was offered a severance
agreement, (see Declaration of Cameron Smith dated
February 7, 2017 ("Cameron Decl."), Ex. B (the
"Agreement")), which contained a "severance
payment of $20, 000 (minus applicable taxes and
withholdings)" along with three weeks' salary and
medical benefits. (Agreement ¶¶ 2, 4; see
Compl. ¶ 49-50.) After reviewing the Agreement and
communicating with Defendants about its terms, Plaintiff
accepted the offer and signed. (Compl. ¶¶ 51-53.)
The Agreement stated it became "immediately binding and
enforceable upon execution by Employee." (Agreement
of the Agreement, Plaintiff agreed to cooperate "in the
orderly transition of her duties and responsibilities."
(Agreement ¶ 7(g).) Plaintiff also agreed to a general
release clause for all of her claims against Defendants
arising out of "Employee's relationship with the
Company, or the termination of Employee's relationship
with the Company." (Agreement ¶ 5.)
Agreement also contained an arbitration clause where the
Parties mutually agreed that "any dispute arising
between the Parties under this Agreement, under any statute,
regulation or ordinance, under any employment agreement,
offer letter or other agreement, and/or in connection with
the Employee's employment or termination thereof shall be
submitted to binding arbitration" for resolution on a
strictly confidential basis. (Agreement ¶ 11.)
event of a material breach of the Agreement by Plaintiff, the
Agreement provided that TFA would have no further obligations
to Plaintiff under the Agreement and would be entitled to
recoup the amounts paid to Plaintiff pursuant to the
Agreement, plus reasonable attorneys' fees and costs
incurred in recouping such amounts, (Agreement ¶
12(a)-(b)); in addition, all of Plaintiff's promises,
covenants, representations, and warranties would remain in
full force and effect. (Agreement ¶ 12(d).)
signing the Agreement, Defendants wired Plaintiff $12, 352.92
to her bank account. (Compl. ¶ 55.) Plaintiff emailed
Defendants indicating she believed there had been error in
payment to her, which Defendants said they would investigate.
(Compl. ¶ 55.) Shortly thereafter, Defendants requested
Plaintiff return to Defendants' office to train Suarez on
aspects of Plaintiff's job, which Plaintiff refused
because she continued to view the environment as hostile.