Brazzano v. Thompson Hine LLP

Brazzano v. Thompson Hine LLP

What’s at Stake

This is an appeal in the Second Circuit involving the application of the Ending Forced Arbitration in Sexual Assault and Sexual Harassment Act (EFAA).

Summary

Rebecca Brazzano was employed in the New York office of Thompson Hine LLP, a law firm. She alleges that from 2010 to 2022, an equity partner she worked for in the Business Litigation Group, Richard De Palma, created a sex-based hostile work environment by making offensive and misogynist comments. His behavior permitted a culture of sexual harassment to persist in their group, including Rebecca being excluded from opportunities for billable hours, because she is a woman. For example, she alleges that De Palma bragged about having married a former associate, did not intervene when his assistant was sexually harassed by a client, and had a practice of greeting female lawyers in meetings by kissing them. He also singled out Rebecca, the only woman in a senior position in the group, by badmouthing her to colleagues and excluding her from firm gatherings. This conduct continued even after Rebecca was promoted to income partner in 2013, a promotion that Robert openly opposed. Rebecca reported Robert’s behavior to firm leadership, but no action was taken to stop it.

Robert’s behavior toward Rebecca came to a head in March 2022. In her role as chair of the pro bono committee, Rebecca rejected Robert’s request to approve a vendor expense for one of his pro bono matters because it was inconsistent with firm policy. Rather than accept her determination, Robert went over Rebecca’s head to seek approval from her supervisor, even though they were not involved in overseeing the firm’s pro bono work.

One week later, Rebecca received a call from a supervisor asking for her resignation. The stated reason was that her billable hours were too low. Rebecca alleges that it was actually due to Robert’s campaign of harassment and discrimination against her, and his reaction to her scrutiny of his pro bono expenses. She refused to resign and was terminated from Thompson Hine in early June 2022.

Core Legal Problem

Rebecca filed suit in federal court, asserting claims for sexual harassment, sex discrimination, and retaliation under New York City, State, and federal law, as well as tort claims for defamation, abuse of process, and negligent infliction of emotional distress. In response to the complaint, Thompson Hine LLP filed a motion to compel arbitration and, in the alternative, to dismiss for failure to state a claim.

The district court concluded that EFAA applied and denied Thompson Hine LLP’s motion to compel arbitration. The court rejected Thompson Hine LLP’s argument that Rebecca’s claims accrued before EFAA’s effective date in March 2022, concluding that her termination was part of the alleged hostile work environment, and under the continuing violation doctrine, her claims also accrued when she was terminated in June 2022. Because Rebecca had alleged at least one claim within the coverage of EFAA, the court concluded that “any applicable arbitration agreement is unenforceable” and denied the motion to compel arbitration as to the entire case.

After denying the motion to compel, the court analyzed the merits of Rebecca’s claims and denied Thompson Hine LLP’s motion to dismiss for failure to state a claim as to her sexual harassment, sex discrimination, and retaliation claims.