Mahe v. Tzell Travel, LLC et al
OPINION re: 16 MOTION to Dismiss Plaintiff's Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) and/or Fed. R. Civ. P 12(c) and;. MOTION to Compel Arbitration with respect to Plaintiffs Breach of Contract Claim. filed by T zell Travel, LLC, Delores Suarez: Defendants Tzell Travel, LLC ("Tzell Travel"), Tzell Fifth Avenue, Ltd. ("TFA"), and Dolores Suarez ("Suarez") (collectively, the "Defendants") have moved to dismiss the comp laint 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 Fed eral Arbitration Act ("FAA"), 9 U.S.C. § 1 et seq. For the foregoing reasons, Defendants' motion to compel arbitration is granted and motion to dismiss Plaintiff's complaint is denied. This action is stayed pursuant to Section 3 of the FAA. Case referred to arbitration. (Signed by Judge Robert W. Sweet on 6/8/2017) (jwh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
16 Civ. 9478
TZELL TRAVEL, LLC, a/k/a TZELL TRAVEL
GROUP, LLC, a/k/a and/or d/b/a TZELL FIFTH
AVENUE, LTD and DOLORES SUAREZ, In Her
Individual and Official Capacities,
A P P E A RA N C E S:
Attorneys for Plaintiff
PHILLIPS & ASSOCIATES
45 Broadway, Suite 620
New York, NY 10006
Gregory Calliste, Jr. Esq.
Steven Fingerhut, Esq.
Attorneys for Defendants
SEYFARTH SHAW LLP
620 Eighth Avenue
New York, NY 10018
Cameron Smith, Esq.
Joanne Seltzer, Esq.
Defendants Tzell Travel, LLC ("Tzell Travel"), Tzell Fifth
("TFA"), and Dolores Suarez ("Suarez")
(collectively, the "Defendants") have moved to dismiss the
complaint of the Plaintiff Nancy Mahe ("Mahe" or the
(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
1 et seq.
Based 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.
The Complaint sets forth the following allegations, which
are assumed true for the purpose of this motion to dismiss. See
Koch v. Christie's Int'l PLC, 699 F.3d 141 , 145 (2d Cir. 2012) .
From approximately June 1996 through July 2016, Plaintiff
worked for Defendants as a travel agent.
18, 43, Dkt.
4.) While employed by Defendants, Plaintiff regularly would
overhear Suarez, Plaintiff's manager, make derogatory remarks
about Hispanics, African-Americans, and immigrants.
24-38.) Plaintiff initially kept silent during such incidents
for fear of retribution or termination.
In July 2016, after another such incident, Plaintiff
emailed Suarez to inform her that Plaintiff thought Suarez's
comments created a "hostile work environment." (Compl.
Within forty-five of Plaintiff's email, Suarez fired Plaintiff.
As a result of the termination, Plaintiff was offered a
February 7, 2017
(see Declaration of Cameron Smith dated
("Cameron Deel."), 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.
2, 4; see Compl.
49-50.) After reviewing the Agreement and communicating with
Defendants about its terms, Plaintiff accepted the offer and
51-53.) The Agreement stated it became
"immediately binding and enforceable upon execution by
As part of the Agreement, Plaintiff agreed to cooperate "in
the orderly transition of her duties and responsibilities."
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."
The 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.
In the 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,
12(a)-(b)); in addition,
all of Plaintiff's promises, covenants, representations, and
warranties would remain in full force and effect.
After signing the Agreement, Defendants wired Plaintiff
$12,352.92 to her bank account.
Defendants indicating she believed there had been error in
payment to her, which Defendants said they would investigate.
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.
In response, Defendants withdraw the previously wired money from
Plaintiff's bank account.
When the Plaintiff "called Defendants to find out why her
payment was taken back[,] Plaintiff was told that
Defendants refused to acknowledge their offer, or the agreement
in total[,] and that there would be no severance payment."
62 .) The Complaint further alleges that Plaintiff, who
was in a "distraught state[,] began crying during the
conversation [when] Defendants' representative Patrico Suarez
[Suarez's son] informed Plaintiff that they 'did not care how
much Plaintiff cried,' they would not honor the severance
agreement and it would be Plaintiff's word against theirs if she
tried to enforce the agreement." (Compl.
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