Awad v. Extended Nursing Personnel et al

Filing 27

OPINION AN ORDER GRANTING MOTION TO COMPEL ARBITRATION re: 17 MOTION to Compel Arbitration Or, In The Alternative, To Dismiss Plaintiff's Complaint. filed by Extended Nursing Personnel, Girling Health Care of New York, Inc.. For the foregoing reasons, Defendants' motion to compel arbitration is GRANTED and this case is STAYED pending the resolution of the arbitration. The Parties are directed to file a letter updating the Court on the outcome of the arbitration within three business days of its completion. The Clerk of Court respectfully is requested to close the motion at ECF No. 17. SO ORDERED. (Signed by Judge Mary Kay Vyskocil on 3/10/2025) (tg)

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 3/10/2025

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
RUSSELL AWAD,
Plaintiff,
-againstEXTENDED NURSING PERSONNEL and
GIRLING HEALTH CARE OF NEW YORK,
INC.,

1:24-cv-02117-MKV
OPINION AND ORDER
GRANTING MOTION TO
COMPEL ARBITRATION

Defendants.
MARY KAY VYSKOCIL, United States District Judge:
Plaintiff, Russell Awad, brings this case alleging that Defendants Extended Nursing
Personnel (“Extended Nursing”) and Girling Health Care of New York, Inc. (“Girling”)
discriminated against him in violation of 42 U.S.C. §§ 2000e et seq. (“Title VII”), New York State
Human Rights Law (“NYSHRL”), and New York City Human Rights Law (“NYCHRL”) because
he refused to take the COVID-19 vaccination based on his religious beliefs. Defendants move to
compel arbitration, and in the alternative, move to dismiss the complaint for failure to state a claim
upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
For the following reasons, the motion to compel arbitration is GRANTED.
FACTUAL BACKGROUND 1
Defendant Extended Nursing is a certified home health care agency serving clients with
disabilities by providing part-time, intermittent health care and support services in the home.
Compl. ¶ 11. Plaintiff Awad was hired as a case manager by Extended Nursing on or around May
The Court draws these facts from the Complaint, see [ECF No. 1 (“Compl.”)], the motion to compel briefing and the
exhibits attached thereto, see [ECF Nos. 17, 18 (“Def. Mem.”), 19 (“Achilarre Aff.”), 19-1 (the “Arbitration
Agreement,” “Arb. Agreement,” or “Agreement”), 24 (“Pl. Opp.”), 25, 26 (“Def. Reply”)]. See Nicosia v.
Amazon.com, Inc., 834 F.3d 220, 229–30 (2d Cir. 2016) (“In deciding motions to compel, courts apply a “standard
similar to that applicable for a motion for summary judgment . . . “The summary judgment standard requires a court
to ‘consider all relevant, admissible evidence submitted by the parties’[.]”).
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13, 2019. Compl. ¶¶ 24, 26; Def. Mem. at 2. In Awad’s position as a case manager, Plaintiff
worked in an office, managing the care of clients by conducting check-ins and assessments by
phone, setting up medical appointments, and communicating with clients’ doctors, and home
health providers. Compl. ¶¶ 25, 26.
Shortly after he was hired, Awad signed an arbitration agreement with Defendant Extended
Nursing. See Def. Mem. at 2; ECF No. 19–1 (“Arb. Agreement”). The agreement expressly
provides that it is “entered into between the undersigned employee [Awad] and Extended Nursing
Personnel, LLC including any parent[,] subsidiary, agent, affiliate, successor or assign” which are
defined collectively as the “Company”. Arb. Agreement ¶ 1. The Agreement states “Employee
and the Company agree that any controversy, dispute, or claim that could otherwise be raised in
court (“Claim”) that . . . Employee has against the Company, its current or former officers,
directors, members, employees, vendors, clients, customers, agents, parents, subsidiaries, affiliated
companies, successors, or assigns, shall be settled exclusively by binding arbitration rather than in
court.” Id. ¶ 2. It specifies that claims covered by the Arbitration Agreement “include, but are
not limited to. . . claims for violation of any federal, state, or other government law, . . . for example,
claims under . . . claims under . . . Title VII of the Civil Rights Act of 1964, . . . the New York State
Human Rights Law, [and] the New York City Human Rights Law[.]” See id.
In the spring of 2020, at the outset of the COVID-19 pandemic, Awad began performing
his job from home. Compl. ¶ 28. More than a year later, Extended Nursing informed its staff of
its new COVID-19 Vaccination Policy that required mandatory vaccination for anyone working
onsite. See Compl. ¶ 31; Def. Mem. at 4. Extended Nursing advised that those requesting an
exemption based on a disability or a “sincerely held religious belief under Title VII” to make the
request in writing. Compl. ¶ 32. Extended Nursing stated that “[a]ccommodations for exemptions

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due to religious belief have been temporarily extended through Tuesday, October 12, 2021, at
which time it will be determined by the NYS courts if individual will be allowed to seek exemption
for this reason.” Compl. ¶ 34.
Awad is a devout Catholic, he attends church approximately four times per year, and was
baptized and confirmed. Compl. ¶¶ 18–19. As part of his religious faith, Awad is staunchly antiabortion. Compl. ¶ 22. Accordingly, on October 12, 2021, he filed a request with Extended
Nursing for a religious exemption from the vaccine requirement stating, “As a devout Christian I
hold my beliefs close to my heart. The three vaccines that are out now all used Fetal Cell Lines in
their development, production and testing. I believe in the sanctity of the unborn and that receiving
the COVID-19 vaccine would be a violation of my conscience, which prohibits me from even a
remote complicity with the sin of abortion.” Compl. ¶ 35.
A week later, Extended Nursing replied stating: “you are currently working remotely and
do not come into contact with other employees or patients. We will consider and evaluate this
request at a time closer to when you will be required to report to the office.” Compl. ¶¶ 37–38.2
Within a month, Extended Nursing notified Awad that “[t]he law does not allow for healthcare
employers to allow their employees to go unvaccinated because they work remotely. If you are
employed by a CHHA, MLTC or other health entity you must be vaccinated whether you work
remotely or in the office.” Compl. ¶ 40. Shortly thereafter, Awad was terminated. Compl. ¶ 41.
Awad alleges that he was terminated because of his religiously based anti-abortion views and

Plaintiff Awad interprets this communication as a denial of his request for a religious exemption. Compl. ¶¶ 37–38.
Defendants assert that this communication merely stayed Awad’s request because he was working remotely at the
time. Def. Mem. at 5. Whether this letter constituted a denial is irrelevant to the analysis of the motion to dismis.
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because of his request for a religiously based exemption from the COVID-19 vaccine mandate.
Compl. ¶ 42.
In the Complaint, Plaintiff makes very few factual allegations explaining Defendant
Girling’s role in this case. Plaintiff’s only factual allegations include that (1) Defendant Girling is
a certified home health care agency that provides nursing, post-operation, pediatric, and therapy
services; (2) “Defendants [Extended Nursing] and Girling determined policies, procedures, and
conditions of employment which directly affected Plaintiff’s working conditions that led to his
termination”; and (3) generally, “Defendants unlawfully terminated Plaintiff[.]” Compl. ¶¶ 14, 16,
47. The Parties’ briefing of the motion to compel demonstrates that the parties dispute the nature
of the relationship between Extended Nursing and Girling. Generally, Defendants allege that,
subsequent to Plaintiff’s termination, Girling acquired Extended Nursing and that Girling was
never Awad’s employer. Def. Mem. at 4, 6, 10–11. Plaintiff, in his Opposition, asserts that due to
ongoing litigation, the sale of Extended Nursing to Girling has not been “effectuated,” but, Plaintiff
also alleges that “Girling was [Awad’s] employer.” Pl. Opp. at 1, 3, 9 n.2.
PROCEDURAL HISTORY
Plaintiff initiated this action by filing a Complaint. [ECF No. 1 (“Compl.”)]. 3 Plaintiff
filed a letter in opposition and the Court granted Defendants’ request and set a briefing schedule.
[ECF Nos. 14, 15]. 4 With leave of the Court, Defendants moved to compel arbitration, and in the

Prior to filing a Complaint, Awad filed a Charge of Discrimination with the Equal Employment Opportunity
Commission (“EEOC”) and received a Notice of a Right to Sue. Compl. ¶ 8. Defendant does not argue that Awad
failed to fulfill procedural prerequisites prior to commencing this action.
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Plaintiff argues in his opposition, that the Court granted Plaintiff leave only to file a motion to dismiss and not a
motion to compel arbitration and thus Defendants have contravened the Court’s order. [ECF No. 24 at 2]. In its
scheduling order, the Court did only reference a motion to dismiss, and did not mention Plaintiff’s anticipated motion
to compel arbitration. [ECF No. 15]. However, in the context of the parties’ pre-motion letters which both address
Defendants two proposed alternative motions, [ECF Nos. 13–14], the scheduling order issued by the Court should be
read to grant Defendants leave to argue both that the case should be referred to arbitration, and in the alternative, be

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alternative, moved to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, filing a memorandum of law, [ECF Nos. 17, 18 (“Def. Mem.”)], and a declaration in
support which attached an Arbitration Agreement as an exhibit. [ECF No. 19 (“Achilarre Aff.”),
19-1 (the “Arbitration Agreement,” the “Arb. Agreement,” or “Agreement”)]. Plaintiff filed a
memorandum of law in opposition and a declaration in support, [ECF Nos. 24 (“Pl. Opp.”), 25],
and Defendants filed a reply, [ECF No. 26 (“Def. Reply”)].
LEGAL STANDARD
Pursuant to Section 2 of the Federal Arbitration Act, “[a] written provision in . . . a contract
. . . to settle by arbitration a controversy thereafter arising out of [the] contract . . . shall be valid,
irrevocable, and enforceable.” Nicosia v. Amazon.com, Inc., 834 F.3d 220, 228–29 (2d Cir. 2016)
(quoting 9 U.S.C. § 2) (alterations in original). The Act reflects “a national policy favoring
arbitration” based on the “desire to preserve . . . parties’ ability to agree to arbitrate, rather than
litigate.” Doctor's Assocs., Inc. v. Alemayehu, 934 F.3d 245, 250 (2d Cir. 2019) (quoting Schnabel
v. Trilegiant Corp., 697 F.3d 110, 118 (2d Cir. 2012)). Accordingly, the FAA “leaves no place for
the exercise of discretion by a district court, but instead mandates that district courts shall direct
the parties to proceed to arbitration on issues as to which an arbitration agreement has been
signed.” Daly v. Citigroup Inc., 939 F.3d 415, 421 (2d Cir. 2019) (quoting Dean Witter Reynolds,
Inc. v. Byrd, 470 U.S. 213, 218 (1985) (emphasis in original)). However, “parties are not required
to arbitrate unless they have agreed to do so.” Meyer v. Uber Techs., Inc., 868 F.3d 66, 73 (2d Cir.
2017).
When deciding motions to compel arbitration, courts “apply a standard similar to that
applicable for a motion for summary judgment.” Nicosia, 834 F.3d at 229 (internal quotation
dismissed. Moreover, Defendants’ pre-motion letter put Plaintiff on notice that they intended to file a motion to compel
arbitration and a motion to dismiss in the alternative. [ECF No. 13].

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marks omitted). On a motion to compel arbitration, courts therefore consider “all relevant,
admissible evidence submitted by the parties and . . . draw all reasonable inferences in favor of the
non-moving party.” Id. (internal quotation marks omitted). “Where the undisputed facts in the
record require the matter of arbitrability to be decided against one side or the other as a matter of
law, [courts] may rule on the basis of that legal issue and avoid the need for further court
proceedings.” Meyer, 868 F.3d at 74.
DISCUSSION
I.

MOTION TO COMPEL ARBITRATION
In deciding motions to compel arbitration, a court must consider: “(1) whether the parties

have entered into a valid agreement to arbitrate, and, if so, (2) whether the dispute at issue comes
within the scope of the arbitration agreement.” Ameriprise Fin. Servs., Inc. v. Beland, 672 F.3d
113, 128 (2d Cir. 2011). Because arbitration is “a creature of contract,” the “threshold question
facing any court considering a motion to compel arbitration is whether the parties have indeed
agreed to arbitrate.” Doctor’s Assocs., Inc., 934 F.3d at 250. In determining whether the parties
formed a contract, a district court considers “their expressed words and deeds.” Kolchins v.
Evolution Markets, Inc., 31 N.Y.3d 100, 106 (2018) (quoting Brown Bros. Elec. Contrs. v. Beam
Constr. Corp., 41 N.Y.2d 397, 399 (1977)). “The party seeking to compel arbitration bears an
initial burden of demonstrating that an agreement to arbitrate was made.” Zachman v. Hudson
Valley Fed. Credit Union, 49 F.4th 95, 101–02 (2d Cir. 2022). Here, Defendants have carried their
burden.
A.

Awad and Extended Nursing Entered into a Valid Agreement to Arbitrate
The Arbitration Agreement states, “Employee and the Company agree that any controversy,

dispute, or claim that could otherwise be raised in court (“Claim”) that . . . Employee has against
the Company. . . shall be settled exclusively by binding arbitration rather than in court.” See id. ¶
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2. The Arbitration Agreement is signed by both Extended Nursing and Awad. See id. at 5. When
deciding “whether the parties agreed to arbitrate—we look to ‘state contract law principles.’”
Abdullayeva v. Attending Homecare Servs. LLC, 928 F.3d 218, 222 (2d Cir. 2019) (quoting Nicosia,
834 F.3d at 229). “To form a binding contract [under New York law,] there must be a meeting of
the minds, such that there is a manifestation of mutual assent sufficiently definite to assure that the
parties are truly in agreement with respect to all material terms.” See Reliable Automatic Sprinkler
Co. Inc. v. Sunbelt Grp. L.P., 472 F. Supp. 3d 64, 72 (S.D.N.Y. 2020) (quoting Stonehill Cap.
Mgmt., LLC v. Bank of the West, 68 N.E.3d 683, 689 (N.Y. 2016)).
The signatures of Extended Nursing and Awad manifest the required mutual assent to create
a binding Arbitration Agreement under New York law. See Kelly v. Key Corp, No. 23-CV-6569DGL-MJP, 2024 WL 1142090, at *6 (W.D.N.Y. Mar. 15, 2024) (“[I]f a party signs or otherwise
assents to an agreement with an arbitration provision, they will be bound by it even if they did not
read it.”); Lewis v. ANSYS, Inc., No. 19-cv-10427, 2021 WL 1199072, at *5 (S.D.N.Y. March 30,
2021) (same); see also I.C. ex rel. Solovsky v. Delta Galil USA, 135 F. Supp. 3d 196, 208 (S.D.N.Y.
2015) (“she who signs or accepts a written contract, in the absence of fraud or other wrongful act
on the part of another contracting party, is conclusively presumed to know its contents and to assent
to them”) (cleaned up).
Plaintiff fails to challenge the validity of the contract. Instead, Plaintiff asserts that the
Arbitration Agreement should not be enforced because the ownership of Extended Nursing is
disputed and subject to litigation. Pl. Opp. at 1, 15–16. Plaintiff contends that the Arbitration
Agreement should not be enforced because, due to the ongoing dispute, “it is unclear whether
[Awad] agreed to arbitrate with a specific party.” Id. at 16. On the contrary, the Arbitration
Agreement is very clear that “[t]he Arbitration Agreement is entered into between the undersigned

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employee [Awad] and Extended Nursing Personnel, LLC including any parent[,] subsidiary, agent,
affiliate, successor or assign (collectively, the “Company”).” Arb. Agreement ¶ 1.
The cases cited by Plaintiff in his attempt to avoid arbitration do not support his argument.
See Pl. Opp. 16 (citing Schon v. Rakower, No. 502720/12, 2013 WL 6334833 (N.Y. Sup. Ct. Dec.
04, 2013) and citing Weisenfeld v. Iskander, No. 651436/2016, 2019 WL 1877209 (N.Y. Sup. Ct.
Apr. 26, 2019)). In fact, the very quotations from these cases that Plaintiff includes in his
Opposition demonstrate how they are factually different from this case. In Schon, a purported
arbitration agreement “lack[ed] essential terms,” it “seem[ed] to leave the parties to the arbitration
in question, as it defines them merely by the phrase ‘the litigants who signed below with the
signature of our hands,’” and “b[ore] only petitioner’s signature and le[ft] the identity of other
potential parties to the arbitration undefined.” Pl. Opp. at 16 (quoting Schon, 2013 WL 6334833,
at *5). In Weisenfeld, handwritten notes did not constitute a real estate purchase agreement where
“there [was] nothing . . . to show the parties agreed to the material terms, including the identity of
the party or parties to be bound” and the notes were “too vague to ascertain what was promised in
order for the court to enforce it” and therefore “the alleged contract fail[ed] for a lack of
definiteness.” See Pl. Opp. at 16 (quoting Weisenfeld, 2019 WL 1877209, at *5); see also
Weisenfeld, 2019 WL 1877209, at *2 (indicating that the purported contract was composed of
handwritten notes regarding a real estate deal).
As explained above, both parties to the contract at issue here, Awad and Extended Nursing,
identified themselves clearly and signed the Arbitration Agreement. Arb. Agreement ¶ 1, at 5.
Moreover, the Agreement explains clearly the purpose and material terms of the agreement,
namely that “Employee and the Company agree that any controversy, dispute, or claim that could
otherwise be raised in court (“Claim”) [between the parties] shall be settled exclusively by binding

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arbitration rather than in court.” See id. ¶ 2. Accordingly, the Court finds that Awad and Extended
Nursing have entered into a valid agreement to arbitrate.
B.

Questions Regarding the Scope of the Arbitration
Agreement are Delegated to the Arbitrator
If the movant overcomes the burden of establishing a valid agreement to arbitrate, “[b]efore

addressing the second inquiry [regarding whether the subject claims are covered by the scope of
the agreement, the Court] must also determine who—the court or the arbitrator—properly decides
the issue.” In re American Exp. Fin. Advisors Sec. Litig., 672 F.3d 113, 128 (2d Cir. 2011). While
the question of “whether the particular dispute is subject to an arbitration agreement is typically
an issue for judicial determination,” an exception to that general rule applies if the arbitration
agreement “clearly and unmistakably elects to have the resolution of the arbitrability of the dispute
decided by the arbitrator.” Metro. Life Ins. Co. v. Bucsek, 919 F.3d 184, 191 (2d Cir. 2019) (internal
quotation marks omitted).
“[W]here the arbitration agreement is broad and expresses the intent to arbitrate all aspects
of all disputes, this—coupled with incorporation of rules that expressly empower an arbitrator to
decide issues of arbitrability—constitutes clear and unmistakable evidence of the parties’ intent to
delegate the question of arbitrability to the arbitrator.” DDK Hotels, LLC v. Williams-Sonoma,
Inc., 6 F.4th 308, 318–19 (2d Cir. 2021).

Here, the Arbitration Agreement clearly and

unmistakably delegates questions of arbitrability to the arbitrator. First, the Arbitration Agreement
incorporates the National Rules for the Resolution of Employment Disputes of the American
Arbitration Association (“AAA”). See Arb. Agreement ¶ 8. These rules state that “[t]he arbitrator
shall have the power to rule on his or her own jurisdiction, including any objections with respect
to the existence, scope or validity of the arbitration agreement.” AAA Employment Arbitration
Rules & Mediation Procedures, Rule 6(a) (Jan. 1, 2023). The Second Circuit has repeatedly found
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that this exact language “explicitly empower[s] an arbitrator to resolve questions of arbitrability.”
See, e.g., DDK Hotels, 6 F.4th at 318; Contec Corp. v. Remote Sol., Co., 398 F.3d 205, 208 (2d Cir.
2005). Second, the Arbitration Agreement is quite broad. It states that “[o]ther than as provided in
this Agreement, Employee and the Company agree that any controversy, dispute, or claim that
could otherwise be raised in court (“Claim”) that . . . Company has against Employee or the
Employee has against the Company. . . shall be settled exclusively by binding arbitration rather
than in court.” See Arb. Agreement ¶ 2. Accordingly, the Arbitration Agreement delegates to an
arbitrator questions regarding whether this case falls under the scope of the agreement.
Moreover, though the Court is required to delegate to the arbitrator questions regarding
whether the present claims are covered by the operative Arbitration Agreement, there does not
appear to be much question here. The Arbitration Agreement states that “Covered Claims include,
but are not limited to . . . claims for violation of any federal, state, or other government law, . . .
for example, claims under . . . Title VII of the Civil Rights Act of 1964, . . . the New York State
Human Rights Law, the New York City Human Rights Law[.]” See Arb. Agreement ¶ 2; see also
Def. Mem. 9–10. These are the very laws under which Plaintiff brings his several claims in this
action. Moreover, Plaintiff mounts no argument that the scope of the Arbitration Agreement would
not cover the present claims. See Pl. Opp. at 14–17. Accordingly, Extended Nursing, a signatory
to the Arbitration Agreement, may certainly compel Awad to arbitrate the present claims.
C.

Girling May Compel Awad to Arbitrate the Claims Asserted Here
Though Girling did not sign the operative Arbitration Agreement, it may compel signatory,

Awad, to arbitrate the case against it. Generally, federal law “does not require parties to arbitrate
when they have not agreed to do so[.]” Collins & Aikman Prods. Co. v. Bldg. Sys., Inc., 58 F.3d
16, 19 (2d Cir. 1995). However, a signatory to an arbitration agreement may be required to

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arbitrate a dispute with a non-signatory either when (1) the arbitration clause “explicitly vests
rights to arbitrate,” in non-signatories or (2)(a) “the issues the non-signatory is seeking to resolve
in arbitration are intertwined with the agreement that the estopped party has signed” and (b) there
is a “relationship among the parties of a nature that justifies a conclusion that the party which
agreed to arbitrate with another entity should be estopped from denying an obligation to arbitrate
a similar dispute with the adversary which is not a party to the arbitration agreement.” Choctaw
Generation Ltd. P'ship v. American Home Assurance Co., 271 F.3d 403, 404 (2d Cir. 2001); Sokol
Holdings, Inc. v. BMB Munai, Inc., 542 F.3d 354, 359 (2d. Cir.2008); Citadel Servicing Corp. v.
Castle Placement, LLC, 431 F. Supp. 3d 276, 287 (S.D.N.Y. 2019).
The parties dispute the nature of the relationship between Extended Nursing and Girling.
Defendants assert that, after Plaintiff was terminated, Girling acquired Extended Nursing and is
thus an affiliate or “related business entity” of Extended Nursing. Def. Mem. at 10–11. Further,
Defendants assert that “Girling was never Plaintiff’s employer.” Def. Reply. at 4. Awad asserts
that “Girling was his employer and must be held liable for failing to accommodate him and for
unlawfully terminating him” Pl. Opp. at 9. Awad also alleges that “Defendants [Extended Nursing]
and Girling determined policies, procedures, and conditions of employment which directly
affected Plaintiff’s working conditions that led to his termination” and “discriminat[ed] against
Plaintiff because of his religiously based anti-abortion beliefs and practices and terminat[ed] his
employment.” Compl. ¶¶ 16, 56. Awad also asserts that during his employment by Extended
Nursing, Girling contracted to purchase Extended Nursing by March 29, 2021. Pl. Opp. at 1.
Awad alleges that the sale never closed and there has been extensive litigation regarding the sale
between Extended Nursing and Extended CHHA Acquisition—a company formed by Girling for

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the purpose of the acquisition of Extended Nursing. Pl. Opp. at 1. 5 Conversely, Defendants state
that Girling was never Awad’s employer and the sale of Extended Nursing to Girling did in fact
close by Court Order on January 4, 2022, although the parties to the sale are disputing “postclosing adjustments to this purchase price.” Def. Reply. 2 n.2, 6. 6
Awad’s assertion that Girling never purchased his former employer, Extended Nursing,
contradicts his assertions that that Girling was his employer at the time of his termination and was
capable of controlling policies and procedures which led to his termination. “[W]here ‘the facts
alleged’ in a nonmovant’s declaration ‘are so contradictory that doubt is cast upon their
plausibility,’ then absent other evidence, granting the motion to compel [arbitration] may be
appropriate.” Barrows v. Brinker Rest. Corp., 36 F.4th 45, 51 (2d Cir. 2022) (quoting Rojas v.
Roman Cath. Diocese of Rochester, 660 F.3d 98, 106 (2d Cir. 2011) (per curiam) (finding that a
Court may reject statements from a party attempting to defeat a motion for summary judgment
when they are so contradictory that “doubt is cast upon their plausibility”); see also Bellefonte Re
Ins. Co. v. Argonaut Ins. Co., 757 F.2d 523, 528–29 (2d Cir.1985) (A Court may “disregard[]” a
parties statements that “seek[] to controvert its own pleading.” (internal citations omitted)).

Defendants argue that the Court should not consider Plaintiff’s additional factual assertions in its Opposition to the
Motion to Compel. Def. Reply at 2–3. However, in deciding motions to compel, courts apply a “standard similar to
that applicable for a motion for summary judgment.” Nicosia, 834 F.3d at 229 (quoting Bensadoun v. Jobe-Riat, 316
F.3d 171, 175 (2d Cir. 2003)). The summary judgment standard requires a court to “consider all relevant, admissible
evidence submitted by the parties and contained in pleadings, depositions, answers to interrogatories, and admissions
on file, together with . . . affidavits.” Id. (citing Chambers v. Time Warner, Inc., 282 F.3d 147, 155 (2d Cir. 2002)).
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Plaintiff requests in his Opposition that the Court grant limited discovery “to determine the effect of Girlings’
acquisition of Extended [Nursing] on Defendants’ liability.” See Pl. Opp. at 16. This request is denied as procedurally
improper. According to the Individual Rules of this Court “[p]arties wishing to file any motions concerning discovery
should, prior to filing any motion, request a pre-motion conference with the Court.” See Individual Rules of Practice
in Civil Cases §4(A)(i). Moreover, the case Plaintiff cites as support for its request is inapposite. See Pl. Opp. 16–17
(citing WTA Tour, Inc. v Super Slam Ltd., 339 F Supp 3d 390, 406-407 (S.D.N.Y. 2018)). In any event, the Court
need not reach the question of Girling’s liability when the dispositive issue for this Court on the pending motion is
whether to compel arbitration.
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Moreover, the dispute between the parties regarding whether the sale to Girling closed is
not material to the issue of whether Girling may compel arbitration.

Under either set of facts

alleged by the parties, Girling may compel Awad to arbitrate these claims because the Arbitration
Agreement explicitly vests that right in Girling and because Girling’s relationship with Extended
Nursing is sufficiently close and the issues Girling is seeking to resolve in arbitration are
intertwined with the Arbitration Agreement.
First, the Arbitration Agreement is written very broadly to cover disputes between Awad
and several parties associated with Extended Nursing. The Agreement is “entered into between
the undersigned employee (‘Employee’) and Extended Nursing Personnel, LLC, including any
parent[,] subsidiary, agent, affiliate, successor or assign (collectively, the ‘Company’).” Arb.
Agreement ¶ 1 (emphasis added). Further, those parties agreed that any dispute “the Employee
has against the Company, its current or former officers, directors, members, employees, vendors,
clients, customers, agents, parents, subsidiaries, affiliated companies, successors, or assigns, shall
be settled exclusively by binding arbitration rather than in court.” Arb. Agreement ¶ 2 (emphasis
added). If Girling is affiliated with, a “related business entity” or successor of Extended Nursing,
as Defendants assert, then it is “explicitly vested with the right” to have an arbitrator preside over
Awad’s employment dispute because the Arbitration Agreement explicitly gives affiliates,
successors, and assigns of Extended Nursing that right. See Citadel, 431 F. Supp. 3d at 288, 290
(finding a contract explicitly provided for arbitration by non-signatory “successors, assigns, and
personal representatives”); see also McPheeters v. McGinn, Smith & Co., 953 F.2d 771, 772 (2d
Cir. 1992) (“[U]nder general contract principles, we may deem non-signatories to fall within the
scope of an arbitration agreement where that is the intent of the parties.”).

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Moreover, if, as Plaintiff alleges, Girling was a co-employer of Awad such that it acted in
tandem with Extended Nursing to “determine[] policies, procedures, and conditions of
employment which directly affected Plaintiff’s working conditions that led to his termination” and
“discriminat[e] against Plaintiff because of his religiously based anti-abortion beliefs and practices
and terminat[e] his employment,” Compl. ¶¶ 16, 56, Girling must have had a corporate or agency
relationship with Extended Nursing through which the Arbitration Agreement would grant Girling
a right to “settle[] [this matter] exclusively by binding arbitration rather than in court.” See Arb.
Agreement ¶ 2.
Furthermore, Girling may compel Awad to bring the present suit against it in arbitration
because (a) “the issues the non-signatory is seeking to resolve in arbitration are intertwined with
the agreement that the estopped party has signed” and (b) there is a “relationship among the parties
of a nature that justifies a conclusion that the party which agreed to arbitrate with another entity
should be estopped from denying an obligation to arbitrate a similar dispute with the adversary
which is not a party to the arbitration agreement.” See, e.g., Ragone v. Atl. Video at Manhattan
Ctr., 595 F.3d 115, 126–27 (2d Cir. 2010) (quoting Choctaw Generation Ltd., 271 F.3d at 406 and
quoting Sokol Holdings, 542 F.3d at 359).
The case Ragone v. Atlantic Video at Manhattan Center is instructive. See 595 F.3d at 126–
28. In Ragone, the Second Circuit found that the subject matter of an employment dispute between
an employee and one of her employers was sufficiently intertwined with her dispute with her other
non-signatory employer because it was “in fact, the same dispute: whether or not [Plaintiff] was
subjected to acts of sexual harassment which were condoned by supervisory personnel at [both
employers].” Ragone, 595 F.3d at 128. The Ragone Court found that the relationship between
those two employers was sufficiently close that the Plaintiff should be estopped from denying an

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obligation to arbitrate with her non-signatory employer because “she understood [that defendant]
to be, to a considerable extent, her co-employer” and that “she would work with and be supervised
by [that defendant].” Id. at 127. Similarly here, if Plaintiff’s allegations—that non-signatory
Girling was his employer, even though there remains a dispute regarding a sale between Girling
and Extended Nursing—are accepted as true, Girling may compel Plaintiff to arbitration.
“In [the] intertwinement analysis, courts commonly conclude that when an employee’s
claims against both a signatory employer and a non-signatory co-employer or supervisor arise out
of the same alleged misconduct, the non-signatory co-employer or supervisor may invoke
arbitration.” Lee v. Engel Burman Grande Care at Jericho, LLC, No. 20CV3093 (RPK) (RER),
2021 WL 3725986, at *5 (E.D.N.Y. Aug. 23, 2021) (citing Ragone, 595 F.3d at 127 and citing
Fenton v. Criterion Worldwide, No. 18-CV-10224, 2020 WL 1489795, at *6 (S.D.N.Y. Mar. 27,
2020)) (“The relationship between the signatory and non-signatory defendants is close: plaintiff
alleges that Engel and Ultimate were her co-employers . . . and that Mularchuk was an employee
of Engel and Ultimate who had the authority to supervise, hire, fire, demote, and promote plaintiff,
. . . Moreover, plaintiff's claims against all defendants stem from the same alleged conduct[.]”));
see also Fenton v. Criterion Worldwide, No. 18-CV-10224, 2020 WL 1489795, at *6 (S.D.N.Y.
Mar. 27, 2020) (“Fenton is estopped from refusing to arbitrate her employment claims against
Morton, her co-employer.”); Barreto v. Jec II, LLC, No. 16-CV-9729 (KBF), 2017 WL 3172827,
at *6 (S.D.N.Y. July 25, 2017) (“It is clear that plaintiffs considered defendants to be coemployers.”); Ouedraogo v. A-1 Int'l Courier Serv., Inc., No. 12 CIV. 5651 AJN, 2014 WL
1172581, at *5 (S.D.N.Y. Mar. 21, 2014) (finding intertwined-ness test satisfied where plaintiff
alleged identical allegations against “co-employer” defendants and did not distinguish between
defendants throughout pleadings).

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Here, Awad mounts the same six causes of action against both defendants that he alleges
were his co-employers and both liable for his allegedly discriminatory termination. Compl. ¶¶ 16,
54–71. Nearly all of the factual allegations about Girling in the Complaint are made jointly against
both defendants. See, e.g., Compl. ¶¶ 16, 17, 71 (“Defendants Home Care and Girling determined
policies, procedures, and conditions of employment which directly affected Plaintiff’s working
conditions that led to his termination” and “Defendants Home Care and Girling are collectively
referred to as ‘Defendants’” and “Defendants engaged in an unlawful discriminatory practice in
violation of the NYCHRL by discriminating against Plaintiff because of his religiously based
beliefs and practices.”). Accordingly, if Awad’s factual allegations are true, Girling may compel
Awad to arbitrate the claims against it.
Conversely, if Defendants’ factual assertions—that Girling purchased Extended Nursing
after the termination of Awad and is now a “related business entity” of Extended Nursing—that
also compels the conclusion that Girling may compel Awad to arbitration. See Def. Mem. at 10–
11. First, Defendants are sufficiently related under this test if non-signatory defendant has a
“corporate relationship to a signatory party” including “cases involving subsidiaries, affiliates,
agents, and other related business entities.” Ross v. American Exp. Co., 547 F.3d 137, 144 (2d Cir.
2008) (emphasis in original) (citing Contec Corp., 398 F.3d at 209 (holding that post-merger
survivor corporation could compel arbitration pursuant to agreement signed by corporation
subsumed in merger) and citing Astra Oil Co. v. Rover Navigation, Ltd., 344 F.3d 276, 280 (2d Cir.
2003) (compelling arbitration where plaintiff acted toward non-signatory affiliated corporation “as
if it were signatory”) and citing Smith/Enron Cogeneration Ltd. P'ship, Inc. v. Smith Cogeneration
Int'l, Inc., 198 F.3d 88, 97 (2d Cir. 1999) abrogated on other grounds by Loc. Union 97, Int'l Bhd.
of Elec. Workers, AFL-CIO v. Niagara Mohawk Power Corp., 67 F.4th 107, 114 (2d Cir. 2023)

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(compelling plaintiff to arbitration where “it treated a group of related companies as though they
were interchangeable”)).

Further, the Arbitration Agreement’s inclusion of any “parent[,]

subsidiary, agent, affiliate, successor or assign” as a party to the Agreement put Awad on notice
that parties other than Extended Nursing itself could compel him to arbitration. Arb. Agreement ¶
1. The subject matter of the dispute between Awad and Extended Nursing and the dispute between
Awad and Girling is intertwined for the same reasons as explained above. Accordingly, Girling
may also compel Awad to arbitrate the claims against it.
II.

MOTION TO STAY
The only remaining question is whether the action should be stayed or dismissed pending

arbitration. The FAA requires a district court, “on application of one of the parties,” to stay an
action after determining that “any issue” in the action is “referable to arbitration.” 9 U.S.C. § 3.
In Katz v. Cellco Partnership, 794 F.3d 341 (2d Cir. 2015), the Second Circuit explained that “the
text, structure, and underlying policy of the FAA mandate a stay of proceedings when all of the
claims in an action have been referred to arbitration and a stay requested.” Id. at 347. Moreover,
the Second Circuit counsels that “courts should stay litigation pending arbitration to avoid
converting an otherwise unappealable interlocutory stay order into an appealable final dismissal
order, thus enabling parties to proceed to arbitration directly.” Dylan 140 LLC v. Figueroa, 982
F.3d 851, 859 n.2 (2d Cir. 2020) (internal quotation marks omitted) (alterations adopted). Here,
Defendants request “that this action be stayed and all of Plaintiff’s claims . . . compelled to
arbitration.” Def. Mem. at 6. Accordingly, the Court will stay the case pending the resolution of
the compelled arbitration.
CONCLUSION
For the foregoing reasons, Defendants’ motion to compel arbitration is GRANTED and
this case is STAYED pending the resolution of the arbitration. The Parties are directed to file a
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letter updating the Court on the outcome of the arbitration within three business days of its
completion. The Clerk of Court respectfully is requested to close the motion at ECF No. 17.
SO ORDERED.
_________________________________
MARY KAY VYSKOCIL
United States District Judge

Date: March 10, 2025
New York, NY

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