1:22-cv-01299-JES-JEH # 37 Filed: 08/21/23 Page 1 of 12
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`IN THE UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF ILLINOIS
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`ANGELA BETANCOURT,
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` Plaintiff,
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` v.
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`RIVIAN AUTOMOTIVE, LLC,
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`CASE No. 22-1299-JES-JEH
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`ORDER AND OPINION
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`This matter is now before the Court on the Motion to Compel Arbitration and Dismiss the
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` Defendants.
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`Second Amended Complaint of Defendant Rivian Automotive, LLC (“Rivian”), brought under
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`Fed. R. Civ. P. 12(b)(3). (Doc. 31). Plaintiff, Angela Betancourt (“Betancourt”), has filed a
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`Motion in Opposition (Doc. 33). Defendant Rivian subsequently filed a Motion for Leave to File
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`a Reply (Doc. 35) to which Plaintiff objected (Doc. 36). Defendant’s proposed Reply is
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`cumulative, rehashing its earlier points without offering new argument. (Doc. 35) is DENIED
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`and was not considered in this Order. See Duerr v. Bradley Univ., 590 F. Supp. 3d 1160, 1165
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`(C.D. Ill. 2022) (noting that the court has discretion to grant leave to file a sur-reply in a motion
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`to dismiss) (internal citation omitted). This “should generally be allowed only for valid reasons,
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`such as ... new arguments in a reply brief.” Id. (citing Meraz-Camacho v. United States, 417 F.
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`App’x 558, 559 (7th Cir. 2011). For the reasons set forth below, Defendant’s Motion to Dismiss
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`(Doc. 31) is also DENIED.
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` BACKGROUND
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`Plaintiff Betancourt has filed a second amended complaint and requested a jury trial
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`under Title VII, 42 U.S.C. 2000e et seq., and the Illinois Human Rights Act (“IHRA”), asserting
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`sexual discrimination and sexual harassment against her former employer, Rivian. Plaintiff
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`1:22-cv-01299-JES-JEH # 37 Filed: 08/21/23 Page 2 of 12
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`worked as a Battery Team Member at Rivian, a manufacturer of electric vehicles, from
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`December 6, 2021, through “about June 1, 2022.” (Doc. 30 at 4). Plaintiff asserts that throughout
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`her employment, “she was regularly subjected to unwanted sexual advances by several of her
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`male coworkers” who pinched her sides, breathed down her neck, and showed her inappropriate
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`sexual pictures and videos on their phones. (Doc. 30 at 5). In addition, on or about April 13,
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`2022, an unidentified revision engineer “walked up to Plaintiff and grabbed her work badge that
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`was attached to the front of her waist, and proceeded to grope Plaintiff.” Id.
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`Plaintiff reported the incident and around April 14, 2022 and was moved to another
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`workstation. Plaintiff continued to encounter the engineer who would “unnecessarily walk up to
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`Plaintiff’s workstation, talk to other coworkers around her, and make incessant eye contact with
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`her.” On April 15, 2022, Plaintiff filed a police report against the engineer and continued to
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`encounter him at work. Plaintiff pled that “her working conditions were so intolerable that she
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`did not return to work after April 20, 2022.” (Doc. 30 at 7). It appears that Plaintiff separated
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`from Rivian around June 1, 2022, with neither party elaborating on the circumstances of the
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`separation.
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`On June 2, 2022, Plaintiff filed a charge of sexual harassment and a hostile work
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`environment with the IDHR and EEOC (Doc. 32-3). There, she complained that she was
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`“subjected to sexual harassment and a hostile work environment by several of my male
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`coworkers.” Id. Plaintiff specifically recounted incidents that occurred on January 20, 2022,
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`February 9, 2022, February 10, 2022, April 13, 2022, and April 14-20, 2022. Id. Plaintiff
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`asserted that she used Paid Safe and Sick Leave (“PSSL”) on February 3-5, February 18, March
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`9, March 11, and April 13, 2022, as a means of coping with and avoiding the sexual harassment.
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`On December 6, 2022, the EEOC issued her a Notice of Right to Sue. (Doc. 30 at 21).
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`Plaintiff alleges in her complaint that Rivian is liable for the actions of the male
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`employees as it “knowingly permitted, and continues to foster, a hostile work environment …
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`wherein female employees, including Plaintiff, Angela Betancourt, are subjected to pervasive
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`sexual harassment.” (Doc. 30 at 1). Plaintiff pleads that she “reported the sexual harassment to
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`several supervisory level employees” and despite notice, Defendant failed “to remedy the
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`pervasive [sexual] harassment.” Id. at 14. Plaintiff asserts, further, that the same has happened to
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`other women at Rivian, and continues to this day, asking leave to certify as a class “All current
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`and former female employees of Defendant who worked at Defendant’s facility located at 100
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`Rivian Motorway, Normal, Illinois from August 6, 2021, through the date of trial.” (Doc. 30 at
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`9).
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`Rivian moves to dismiss as, on November 18, 2021, Plaintiff signed an Arbitration
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`Agreement (“Agreement”) which required arbitration of all claims arising out of her
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`employment. (Doc. 32-2). The Agreement specifically excludes claims for discrimination or
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`harassment based on gender; as well as claims “for violation of any federal, state, or other
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`governmental law, statute, regulation, or ordinance,” including claims arising under the Illinois
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`Human Rights Act. (Doc. 7-1 at ¶ 4). The Agreement also contained a waiver of Plaintiff’s right
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`to assert any class or representative proceeding. (Doc. 32-1 at 6). Rivian has provided a copy of
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`the Agreement which, although outside the pleadings, may be considered in a Rule 12(b)(3)
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`motion. Faulkenberg v. CB Tax Franchise Sys., LP, 637 F.3d 801, 806 (7th Cir. 2011). Under the
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`terms, the parties also mutually waived the right to a jury trial.
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`Plaintiff does not deny signing the Agreement but asserts that the Agreement is
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`unenforceable due to the March 3, 2022 enactment of the Ending Forced Arbitration of Sexual
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`Assault and Sexual Harassment Act (“EFAA”) (“Act”), 9 U.S.C. §§ 401, 402. The EFAA
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`provides that a predispute arbitration agreement or joint-action waiver will not “be valid or
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`enforceable” in a sexual assault or sexual harassment dispute. Id. at § 402(a). The EFAA applies
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`to “any dispute or claim that arises or accrues on or after the date of enactment of this Act
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`[March 3, 2022].”
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`Plaintiff cites the legislative history of the Act which calls “shameful” the practice of
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`forced arbitration and expresses the intent to “fix a broken system that protects perpetrators and
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`corporations and end the days of silencing survivors.” (Doc. 33 at 3 Fn.4) (citing Bipartisan Bill
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`Ending Forced Arbitration of Harassment and Assault Cases Enacted, 38 Term. of Employment
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`Bulletin NL 1 (March 2022)). See id. (the “secretive nature of arbitration prevents victims from
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`sharing their story” and because “fairness and equity” are not guaranteed, offices are able to
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`ignore harassment and retaliate against victims.”).
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`On the date the EFAA was enacted, Plaintiff had already experienced acts of sexual
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`harassment at Rivian. Rivian asserts that Plaintiff’s claims arose when the incidents first
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`occurred and accrued by February 2022 “at the latest,” as this was when she began taking time
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`off of work. Rivian asserts that this predated the Act’s March 3, 2022 enactment, so the Act does
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`not preempt the Arbitration Agreement. (Doc. 35-1 at 3). Plaintiff disputes this, asserting that the
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`misconduct was a continuing violation, so her cause of action did not accrue until she left her
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`employment on April 20, 2022, approximately six weeks after the effective date of the Act.
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`Neither side asserts that the EFAA may be retroactively applied, so the issue before the Court is
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`whether Plaintiff’s discrimination action accrued before or after March 3, 2022.
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`LEGAL STANDARD
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`Rivian moves to dismiss the second amended complaint under Fed. R. Civ. P. 12(b)(3),
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`asserting that this Court is not the proper venue for the dispute, which is allegedly governed by
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`the parties’ Arbitration Agreement. “An arbitration clause is simply a type of forum-selection
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`clause ... [A] motion seeking dismissal based on an agreement to arbitrate therefore should be
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`decided under Rule 12(b)(3).” Rodgers-Rouzier v. Am. Queen Steamboat Operating Co., LLC,
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`525 F. Supp. 3d 926, 928–29 (S.D. Ind. 2021) (citing Johnson v. Orkin, LLC, 556 F. App’x 543,
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`544 (7th Cir. 2014)). “In evaluating a motion to dismiss for improper venue, the Court ‘takes all
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`the allegations in the complaint as true unless contradicted by the defendant’s affidavit and may
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`examine facts outside the complaint.’” Bahoor v. Varonis Sys., Inc., 152 F. Supp. 3d 1091, 1094–
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`95 (N.D. Ill. 2015) (internal citation omitted). The Court is both to construe all facts and draw all
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`reasonable inferences in the plaintiff’s favor. Id. at 1095 (citing Faulkenberg, 637 F.3d at 806).
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`The Court is not obligated to limit its consideration to the pleadings, as it may consider the
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`evidence the parties have presented, including the Arbitration Agreement. Faulkenberg, 637 F.3d
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`at 806.
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`DISCUSSION
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`As noted, the issue here is the accrual date of Plaintiff’s hostile work environment claim.
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`Defendant asserts that the action accrued at the time the hostile work environment standard was
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`initially met and did not continue to accrue with subsequent acts. It is Rivian’s position that
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`Plaintiff’s claims arose or “came into existence,” when she first suffered the harassment in
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`December 2021 and accrued at the time she began taking PSSL time in February 2022. (Doc. 32
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`at 9). Rivian cites Hertzberg v. SRAM Corp., 261 F.3d 651, 657 (7th Cir. 2001), to support that
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`Title VII and IHRA claims arise “when the conduct has the purpose or effect of unreasonably
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`interfering with an individual’s work performance or creating an intimidating, hostile, or
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`offensive work environment.” Rivian makes little mention of the April 13, 2022 groping incident
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`and considers it part of the overall hostile work environment claim, something which had
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`allegedly fully accrued by February 2022.
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`Rivian discusses National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), a case
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`Plaintiff identified as support for her position that a hostile work environment claim accrues at
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`the time of the last act of sexual harassment. There, the Supreme Court considered whether an
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`EEOC Charge of Discrimination had been timely filed within the allowed 300 days. The Court
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`applied the continuing violation doctrine to the hostile work environment claim, finding the
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`EEOC Charge timely even though some of the alleged misconduct had occurred more than 300
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`days before it was filed. Morgan found that “discrete” acts “such as termination, failure to
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`promote, denial of transfer, or refusal to hire” were easy to identify, with the result that the filing
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`deadline began to run as of the date of the incident. Hostile work environment claims were noted
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`to be “different” as they involved repeated conduct. Id. at 115. As a result, the “unlawful
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`employment practice” could not “be said to occur on any particular day.” The Court went on to
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`explain “A hostile work environment claim is composed of a series of separate acts that
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`collectively constitute one ‘unlawful employment practice’ which would be timely if filed within
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`‘300 days of any act that is part of the hostile work environment.’” Id. at 117-118 (citing 42
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`U.S.C. § 2000e–5(e)(1)).
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`Rivian cautions that Morgan should not be broadly applied here, as Morgan was decided
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`in the context of a statute of limitations challenge. Rivian claims that Morgan merely holds that
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`in a hostile work environment case, a claim that accrued prior and might otherwise be time-
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`barred can be linked to later incidents “so long as the last actionable act falls within the statute of
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`limitations.” (Doc. 32 at 11). According to Rivian, Morgan does not hold that a hostile work
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`environment claim accrues on the last act of harassment, but rather, that an already accrued time-
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`barred claim will be allowed if it can be linked to later, timely incidents. (Doc. 32 at 10).
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`Rivian characterizes the continuing violation doctrine as an exception to accrual, applicable only
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`in cases where a statute of limitations is at issue. It claims that if this were not the case, a claim
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`would never accrue in the case of a plaintiff who remained employed and experienced continued
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`harassment.
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`Rivian cites In the Matter of Swift, 129 F.3d 792, 796 (5th Cir. 1997), which discussed
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`the difference between claims accrual and statutes of limitations. It explained that the dates of
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`accrual and the starting date of a statute of limitations may not necessarily be the same, as
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`statutes of limitation are subject to certain tolling provisions while accrual is not. The court
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`explained that an action might have accrued but the statute of limitations not yet begun to run if
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`the statute were tolled, as in the discovery rule applied in medical malpractice cases. This Court
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`acknowledges this difference but does not find this distinction particularly illuminating as the
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`decision in Morgan was based on accrual not tolling. The Morgan Court found that the claim
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`was not complete until the last act which made up the hostile work environment claim; and only
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`at that point did the statute of limitations begin to run. See Laslie v. Cicero, No. 20-1831, 2021
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`WL 1853250, at *8 (N.D. Ill. May 10, 2021) (identifying the continuing violation doctrine as one
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`of accrual, not tolling).
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`Rivian makes scant mention of the April 13, 2022 groping incident, and apparently
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`considers it part of the underlying hostile work environment claim. Rivian asserts that Plaintiff
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`must also intend it as such as the incident is “plainly not severe or pervasive enough to stand as
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`its own claim of actionable harassment.” (Doc. 32 at 13 Fn.7) (citing Mercer v. Cook Cty., Ill.,
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`527 Fed. App’x 515, 520 (7th Cir. 2013) (finding eight separate incidents of alleged harassment
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`were not severe or pervasive enough to create a hostile work environment). Plaintiff, while
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`asserting that this incident was part of the hostile work environment claim, denies that this
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`incident “was not severe and pervasive enough to stand on its own.” (Doc. 33 at 5. Fn.12). For its
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`part, the Court notes that Mercer may be distinguishable as the complained-of conduct was
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`mainly verbal in nature, with one episode of physical contact suggested to be merely accidental
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`and another, not sexual in nature. Id. at 522. This issue, however, is not before the Court and no
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`further analysis is undertaken.
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`Plaintiff responds that Morgan stands for the principle that the continuing violation
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`doctrine is applicable to employment discrimination cases. She asserts that Rivian’s attempts to
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`limit its application to cases where the statute of limitations is at issue cannot stand, citing Laslie,
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`2021 WL 1853250. There, the court found that the continuing violation doctrine applied where
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`“it would be unreasonable to require or even permit [a plaintiff] to sue separately over every
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`incident of the defendant’s unlawful conduct” because “[t]he injuries about which the plaintiff is
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`complaining...are the consequence of a numerous and continuous series of events.” Id. at *8
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`(citing Heard v. Sheahan, 253 F.3d 316, 319 (7th Cir. 2001)). See id. “When the continuing
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`violations doctrine applies, the incidents are lumped together, and ‘the cause of action accrues
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`at...the date of the last injury.’” Id. at *8 (citing Heard at 319) (“But the usual and it seems to us
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`the correct characterization of the doctrine of continuing violation is that it is a doctrine
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`governing accrual, not a tolling doctrine, because we don’t want the plaintiff to sue before the
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`violation is complete.”) (emphasis in original).
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`The gravamen of Morgan is that a hostile work environment claim represents a
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`continuing violation which does not occur on a “particular day,” and has not accrued as of the
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`date of the first offense. Id. at 115. This makes sense, as generally, a single incident of
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`harassment is not enough to support a hostile work environment claim1. A plaintiff must
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`typically plead facts to support that the workplace was “permeated with ‘discriminatory
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`intimidation, ridicule, and insult . . . [and] sufficiently severe or pervasive to alter the conditions
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`of the victim’s employment and create an abusive working environment.’” Scaife v. U.S. Dept. of
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`Veterans Affairs, 49 F.4th 1109, 1115 (7th Cir. 2022). Neither does the Court find that Plaintiff’s
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`action accrued when she started taking PSSL time as she returned to work in between times and
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`allegedly suffered additional abuse.
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`While Morgan found that the continuing violation doctrine applied to a hostile work
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`environment in the context of a filing deadline, the Court does not find that the ruling is limited
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`to such cases. The Court is not troubled that Morgan did not particularly discuss accrual, as the
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`takeaway is that a hostile work environment claim occurs over a period of time and cannot be
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`characterized as having occurred on the date of the first incident. The Court finds this holding
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`applicable to the case at hand.
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`For her part, Plaintiff cites the recent decision in Oliveri v. Stifel, Nicolaus & Company,
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`Inc., No. 21-00046, 2023 WL 2740846 (E.D. N.Y. March 31, 2023), a case directly on point.
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`There, on March 28, 2022, the court granted defendant’s motion to dismiss, finding that the
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`parties’ arbitration agreement barred the plaintiff’s discrimination suit. Plaintiff subsequently
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`filed a Rule 60 Motion to Reconsider, asserting that defendants’ ongoing retaliatory conduct and
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`the March 3, 2022 enactment of the EFAA obviated the arbitration agreement. (Doc. 53 at 2-3).
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`The court granted the Rule 60 motion and gave the plaintiff leave to file a second amended
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`complaint to allege “ongoing and continuing post-EFAA conduct in furtherance of her hostile
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`1 See Hostetler v. Quality Dining, Inc. 218 F.3d 798, 809 (7th Cir. 2000) (a single incident may be enough to
`establish a hostile work environment where it involved touching of a “physical, intimate, and forcible character.”)
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`work environment” claims. Id. at *5. The court found that the plaintiff’s harassment claim was a
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`continuing violation that continued to accrue even where some of the conduct had occurred
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`before the enactment of the Act. See id. at *10 (citing Hauff v. State University of New York, 425
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`F. Supp 3d. 116, 134 (E.D.N.Y. 2019) (“a hostile work environment claim does ‘not accrue until
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`the last act in furtherance of the allegedly discriminatory practice’”); Rosen v. N.Y.C.
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`Department of Education, No. 18-cv-6670, 2019 WL 4039958, at *5 (S.D.N.Y. Aug. 27, 2019)
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`(finding the last act that “contributed to the hostile working environment” was the date the claim
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`accrued).
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`Rivian responds that the Oliveri decision, currently on appeal, is not precedential
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`authority for this Court. In addition, Rivian takes issue with Oliveri’s characterization of the
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`harassment as “continuing to accrue.” Rivian asserts that Oliveri actually found that accrual was
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`delayed through the last date of the harassment, rather than continuing to accrue. [Doc. 32 at 11
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`Fn.6). Rivian does not cite caselaw to support this distinction and the Court does not find it
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`necessary to make such a distinction. Whether a delay or continuation of accrual, the misconduct
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`continued, with the plaintiff having the opportunity to file suit at different points along the
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`continuum; at the earliest time the misconduct reached the level of a hostile work environment,
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`or later, while she was subjected to additional harassment.
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`It is notable that, while Oliveri cited Morgan, it did not limit it to cases involving a
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`statute of limitations issue as Rivian would have us do here. While this decision from the District
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`Court for the Eastern District of New York is not binding authority, the Court agrees with the
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`analysis and rejects Rivian’s attempts to limit Morgan.
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`The Court also finds unavailing, Rivian’s invocation of the Federal Arbitration Act
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`(“FAA”). Rivian asserts that the FAA codifies “a strong public policy in favor of upholding
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`arbitration provisions and requires courts to enforce agreements to arbitrate according to their
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`terms.” (Doc. 32 at 4) (citing Compucredit Corp. v. Greenwood, 565 U.S. 95, 97-88 (2012)).
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`Rivian cites a number of cases that would otherwise require the Court to uphold the Arbitration
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`Agreement. None of these cases, however, discuss the EFAA and all predate it.
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`The Plaintiff here has pled that she was subjected to sexual harassment and a hostile work
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`environment which started in December 2021 and continued until she left her employment in
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`April 2022. The alleged misconduct represents a continuing violation which was ongoing on the
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`date the EFAA was enacted with the result that the Arbitration Agreement and joint-action
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`waiver are nonenforceable.
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`The Court additionally denies Rivian’s motion to the extent that it requests; that Plaintiff
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`be required to arbitrate her claims, that the class claims be dismissed with prejudice, and that the
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`jury demand be stricken. Rivian’s motion to dismiss is denied in its entirety.
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`CONCLUSION
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`For the reasons set forth above, Defendant Rivian’s Motion for Leave to File a Reply
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`(Doc. 35) is DENIED. Defendant’s Motion to Compel Arbitration and Dismiss the Second
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`Amended Complaint (Doc. 31) is also DENIED. The Court reserves ruling on Plaintiff’s request
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`for class certification, finding the request premature at this time. See Buonomo v. Optimum
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`Outcomes, Inc., 301 F.R.D. 292, 295 (N.D. Ill. 2014) (finding it impractical to determine the
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`sufficiency of the class allegations at the pleadings stage unless “the complaint will make it clear
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`that class certification is inappropriate.”) (internal citation omitted).
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`1:22-cv-01299-JES-JEH # 37 Filed: 08/21/23 Page 12 of 12
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`Signed on this 21st day of August, 2023.
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` s/James E. Shadid
` JAMES E. SHADID
` UNITED STATES DISTRICT JUDGE
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