23-658-cv Olivieri v. Stifel, Nicolaus & Company, Inc.

In the United States Court of Appeals For the Second Circuit

August Term, 2023

(Submitted: April 3, 2024 Decided: August 12, 2024)

Docket No. 23-658-cv

PATRICIA OLIVIERI,

Plaintiff-Appellee,

–v.–

STIFEL, NICOLAUS & COMPANY, INCORPORATED, NEIL ISLER, IN HIS INDIVIDUAL AND PROFESSIONAL CAPACITY, ROBERT CODIGNOTTO, IN HIS INDIVIDUAL AND PROFESSIONAL CAPACITY,

Defendants-Appellants,

CHRISTINA SCELTA, IN HER INDIVIDUAL AND PROFESSIONAL CAPACITY, JULIE GAFFNEY, IN HER INDIVIDUAL AND PROFESSIONAL CAPACITY,

Defendants.

Before: RAGGI, ROBINSON, Circuit Judges, and RAKOFF, District Judge. 1

1Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation. Defendants-Appellants Stifel, Nicolaus & Company, Incorporated, Neil Isler, and Robert Codignotto appeal from the March 31, 2023 order of the United States District Court for the Eastern District of New York (Azrack, J.) declining to compel arbitration of Plaintiff-Appellee Patricia Olivieri’s hostile work environment claims. In March 2022, the district court granted a motion to compel arbitration of Olivieri’s state and federal gender-based hostile work environment and retaliation claims. Olivieri moved for reconsideration in light of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA), which had been enacted earlier that month. On reconsideration, the district court vacated its earlier decision and denied the motion to compel arbitration, concluding that Olivieri’s claims accrued after the EFAA was enacted and that the statute therefore renders her arbitration agreement voidable by Olivieri. On appeal, we agree with the district court. Based on the continuing violation doctrine, Olivieri’s hostile work environment claims accrued after March 3, 2022, the date the EFAA became effective. Consequently, her arbitration agreement is invalid and unenforceable, and we accordingly AFFIRM the order of the district court denying the motion to compel arbitration.

AFFIRMED.

David E. Gottlieb, Alfredo J. Pelicci, Wigdor LLP, New York, NY, for Plaintiff-Appellee.

Kevin B. Leblang, Izabel P. McDonald, Kramer Levin Naftalis & Frankel LLP, for Defendants- Appellants.

Shelby Leighton, Ellen Noble, Public Justice, Washington, DC, Jeffrey R. White, American Association for Justice, for Amici Curiae Public Justice, American Association for Justice, and the New York Chapter of the National Employment Lawyers Association in support of Plaintiff-Appellee.

2 ROBINSON, Circuit Judge:

While a motion to compel arbitration in this case was pending in the district

court, Congress enacted the Ending Forced Arbitration of Sexual Assault and

Sexual Harassment Act of 2021 (“EFAA”). See

Stat. 26

(2022) (codified at 9 U.S.C. §§ 401–402). In broad strokes, the EFAA renders

arbitration agreements invalid and unenforceable, at the election of the

complainant, in sexual assault and sexual harassment cases. The question on

appeal is whether the EFAA applies to this case, meaning it may stay in federal

court, or whether it doesn’t, meaning it must go to arbitration.

In 2021, Plaintiff-Appellee Patricia Olivieri sued her employer, Stifel,

Nicolaus & Company, Incorporated (“Stifel”), under the New York State Human

Rights Law (“NYSHRL”). Olivieri alleged that Neil Isler, her manager, sexually

assaulted and repeatedly sexually harassed her. After she reported him to the

company, Stifel and the other defendants allegedly subjected her to a hostile work

environment characterized by discrimination and retaliation. Through

subsequent amendments, Olivieri added claims under Title VII of the Civil Rights

Act of 1964 (“Title VII”) and named individual defendants Isler and Robert

Codignotto (collectively with Stifel, “Defendants”).

3 The defendants moved to compel arbitration, citing an arbitration provision

in Olivieri’s employment agreement. The U.S. District Court for the Eastern

District of New York (Joan M. Azrack, Judge) granted the motion on March 28,

2022, compelling arbitration of Olivieri’s claims. See Olivieri v. Stifel, Nicolaus &

Company, Incorporated,

, at *5 (E.D.N.Y. Mar. 28, 2022) (“Olivieri I”).

The court’s order did not mention the EFAA, which had just been enacted a few

weeks earlier on March 3, 2022 (the “Effective Date”). In light of the new law,

Olivieri moved to amend her complaint to add additional allegations and

defendants, and asked the district court to reconsider its decision compelling

arbitration. 2

In its March 31, 2023 order granting Olivieri’s motions, the district court

applied the continuing violation doctrine and concluded that, as alleged in the

Second Amended Complaint (“SAC”), Olivieri’s ongoing hostile work

environment claims accrued after the Effective Date. See Olivieri v. Stifel, Nicolaus

& Company, Incorporated,

, at *6–7 (E.D.N.Y. Mar. 31, 2023)

(“Olivieri II”). As a result, the EFAA applied, and Olivieri was permitted to void

her arbitration agreement.

. The district court consequently vacated its

2 The Second Amended Complaint added Christina Scelta and Julie Gaffney as defendants. 4 earlier order ruling to the contrary and denied Defendants’ motion to compel

arbitration.

Defendants now appeal that order.

As we explain below, we agree with the district court that the EFAA applies

in this case. By its terms, the statute applies with respect to “any dispute or claim

that accrues on or after” the Effective Date.

, 136 Stat. at 28.

The term “accrue” means the same thing under the EFAA as it does in the statute-

of-limitations context. Pursuant to the continuing violation doctrine, the statute of

limitations for hostile work environment claims runs from the time of the last act

in the continuing course of discriminatory or retaliatory conduct. Olivieri began

to experience a retaliatory hostile work environment before the Effective Date, but

the continuing course of conduct that underlies her retaliatory hostile environment

claim persisted after the EFAA was enacted. Her claim thus accrued after the

Effective Date, the EFAA applies in this case, and she was permitted to invalidate

her arbitration agreement. Accordingly, we AFFIRM the district court’s order.

BACKGROUND

For purposes of this appeal, we accept as true the allegations in Olivieri’s

SAC. See Schnabel v. Trilegiant Corp.,

(2d Cir. 2012).

5 I. Pre-EFAA Facts

In 2018, Patricia Olivieri started work as a Client Services Associate at Stifel,

a financial services firm. In that role, she provided support and assistance in

managing more than 1,500 clients and hundreds of millions of dollars of assets, as

well as procuring more than $11 million in assets that clients invested with Stifel.

When she started, Olivieri reported to multiple manager-level employees

with the understanding that she would later be assigned to report directly to one

of them. One of those employees was Neil Isler, Senior Vice President of

Investments. Isler visited her cubicle on a daily basis, often stopping by multiple

times a day. Olivieri suspected that Isler was attempting to establish a relationship

so that she would eventually be assigned to work directly for him. A few months

later, her suspicions were validated. She was assigned to report directly to Isler in

June 2018.

As Olivieri’s direct manager, Isler took it upon himself to increase Olivieri’s

compensation. At first, he guaranteed her a $10,000 annual bonus. A few months

later, he increased it to $15,000. It was unusual to get such a large bonus; most of

Olivieri’s peers at the company received just a few hundred dollars each.

Once Olivieri began reporting to Isler, the harassment started. He would

call her into his office during the workday for long, closed-door meetings, during

6 which he brought up topics ranging from his sex life with his wife to rape. On

numerous occasions, Isler discussed an incident in which a friend of his had raped

a woman he knows, providing lurid details “with a big grin on his face.” Jt. App’x

at 307. He chatted about cheating on his wife, having a threesome during his lunch

break, and his children finding a used condom in his car after he had sex in the car

with a woman who was not his wife. During these conversations, Isler shared

graphic details about his sexual predilections and asked Olivieri about hers.

In addition to verbally sexually harassing Olivieri, Isler acted

inappropriately toward her. He watched pornography in view of Olivieri, put his

hand on top of hers to move her computer mouse, and leaned into her so that his

crotch was close to touching her. On one occasion, while she was in his office, Isler

stood up from his chair and walked over to where Olivieri was standing,

pretended to reach for something from his briefcase, and then placed his palm on

her buttocks.

Olivieri alleges Isler’s harassment continued until a temporary hiatus

during the COVID-19 pandemic. Stifel shuttered its offices in March 2020, and

Olivieri worked from home until August. But when she returned, Isler’s

harassment picked up where he left off. For example, he repeatedly tried to enter

7 Olivieri’s cubicle, despite her pleas for him to keep his distance to prevent the

spread of COVID-19.

By September 2020, Stifel employees were back in the office full time.

Olivieri decided she wanted to sit for the Financial Industry Regulatory

Authority’s (FINRA) Series 9 and 10 exams to obtain a license to be a General

Securities Sales Supervisor. She raised the topic with Robert Codignotto, a Senior

Vice President of Investments and the Branch Manager of the Garden City office.

He told her that Stifel would be happy to sponsor her for the exams and that

Olivieri was undervalued at the company. Codignotto wanted her to get the

license as soon as possible because he needed someone to take on the General

Securities Sales Supervisor role immediately. He also told her that her salary could

double with the license.

Codignotto was also Isler’s supervisor, so during their meeting, Olivieri

asked Codignotto if she could be transferred from reporting to Isler because she

felt that Isler was disrespectful toward her. Codignotto asked if there was

anything specific Olivieri wanted to discuss. Olivieri thought that Codignotto

inferred that something was wrong, so she left it at that.

On September 14, 2020, Codignotto called Olivieri into his office. A few

days earlier, Olivieri had used a day of paid time off (“PTO”) because heavy rain

8 made it unsafe for her to drive to work. Codignotto told her that Isler complained

that she made the request to Codignotto rather than to Isler, and that Isler

complained about Olivieri taking intermittent leave to care for her mother.

Codignotto assured Olivieri that she did nothing wrong and didn’t need to

worry, stating that Isler had a “power issue.” Jt. App’x at 314. He also encouraged

her to take the Series 9 and 10 exams as soon as possible and said that he might

transfer her to another manager even before she obtained her license. Olivieri was

concerned that she’d have to forgo her bonus payments if she were transferred

from Isler, but Codignotto assured her that her compensation wouldn’t be

affected.

On September 21, 2020, after Olivieri indicated that she was not comfortable

meeting with Isler in his office, he called her instead of visiting her in person.

During the call, he asked Olivieri: “Do you like me? Because I like you.” Jt. App’x

at 312. Isler’s question made her uncomfortable, so she didn’t respond. After a

few moments, Isler asked if she felt pressured to say yes, and Olivieri stated that

she did. Isler reassured her that he wanted her to be happy and told her he hoped

to work with her “forever.”

A few days later, on September 25, 2020, Isler emailed Olivieri to complain

about her work on a project he had given her with open parameters and no clear

9 time frame. Olivieri then called Codignotto and told him that Isler was retaliating

against her for avoiding him and refusing to engage in nonwork discussions.

Again, Codignotto reassured Olivieri, stating that there was nothing Isler could do

to her and that she might be able to work out of the Melville office. Codignotto

encouraged her to discuss her problems with Human Resources (“HR”), but

Olivieri was hesitant to complain out of fear of retaliation and losing her job.

Ultimately, Codignotto suggested they talk the next week so that Olivieri could

decide how she wanted to proceed.

Before Olivieri had a chance to discuss the issue in more depth with

Codignotto, Isler confronted her. When she arrived at work on September 29, Isler

told her that he wanted to discuss her projects and assignments. Olivieri went to

Codignotto’s office to complain that Isler had just confronted her, and to explain

that she was uncomfortable working in the same office as Isler. Codignotto stated

he needed more time to evaluate the situation because he had been looking into

her compensation and had not previously been aware that Isler guaranteed her a

$15,000 bonus. He told Olivieri to take the next day off.

After Olivieri returned to her desk, Isler went to Codignotto’s office and

accused her of being “trouble.” Jt. App’x at 316. Isler claimed that Olivieri had

once said that Codignotto had told her that she “looked nice in her jeans.”

Isler

10 reported that Olivieri thought that Codignotto’s comment was inappropriate.

After Isler left Codignotto’s office, Codignotto called Olivieri back in, recounted

what Isler told him, and asked Olivieri if they had a problem.

Olivieri denied making the statement about Codignotto—she didn’t even

wear jeans to work—and explained that Isler was making false accusations against

her because of her complaints about him. At Codignotto’s request, Olivieri took a

day off while he figured out the situation.

On October 4, Olivieri called Codignotto and explained she was anxious

about complaining about Isler and how her complaints would affect her pay, job

security, and Stifel’s support of her pursuit of a securities license. Though he

didn’t guarantee her pay would remain the same if she were transferred to a

different supervisor, Codignotto reiterated that Olivieri would not face retaliation.

He also said that Olivieri would not be promoted even if she obtained her General

Securities Sales Supervisor license because he needed someone to take on the role

right away. Codignotto also stated that Olivieri’s complaints needed to be

escalated to HR.

This prompted an internal investigation. On October 5, 2020, Olivieri

received a call from Zack Anderson, an HR employee at Stifel who investigated

her complaints about Isler. Over the course of an hour-long call, Olivieri detailed

11 Isler’s sexually harassing behavior. At the end of the call, Anderson told Olivieri

to take the next day off.

The following day, Anderson told Olivieri that he would be speaking with

Isler the next day; he indicated that he didn’t share any details of her complaint

with Codignotto. Anderson also mentioned that Codignotto acknowledged she

was a strong performer and had shown initiative. He assured her there would be

a full investigation, but noted it was a “he said, she said” situation.

Anderson later followed up with Olivieri and told her that Isler had been

directed not to speak to her and that the investigation should be complete by the

end of the week. On October 8, he told Olivieri to keep her complaints confidential

and asked her several follow up questions. In particular, he asked whether she

had made any inappropriate comments during her conversations with Isler, and

asked when Olivieri became aware that Isler had issues with her performance.

Olivieri responded that she had never engaged in inappropriate comments or

behavior with Isler and that she had already discussed Isler’s false allegations

regarding her performance with Codignotto. At the end of the call, Anderson said

Olivieri would be placed on administrative leave and should stay home until

further notice.

12 The next day, Anderson called Olivieri again and admitted that Isler had

made inappropriate comments and that his behavior would be addressed, though

Anderson didn’t explain how. He also accused Olivieri of making inappropriate

comments at work, despite her insistence the day before that she had never made

any such comments.

Anderson presented Olivieri two options: she could either return to work at

the Garden City office, where Isler would still be working, or she could move to

the Melville office and work for another manager. Olivieri was hesitant because

these arrangements could impact her professional development. The other

managers for whom she could work managed approximately $2 million in assets,

whereas Isler managed over $300 million.

Anderson told Olivieri that Stifel would increase her base salary from

$47,470 to $55,000 with a bonus between $3,000 and $5,000. But that reduction in

her bonus would result in a reduction to Olivieri’s current total compensation.

Olivieri reiterated that Isler sexually assaulted and sexually harassed her and that

Stifel’s response was unacceptable. Anderson gave Olivieri a few days to think

about the offer.

On October 12, Olivieri informed Stifel that she had retained a lawyer. She

remained on administrative leave for the next month. In the meantime, she gave

13 Stifel a detailed written description of the extensive sexual harassment she had

experienced, as well as the retaliation following her complaints. She also stated

that she intended to pursue litigation.

Olivieri finally returned to work on November 12, 2020. She alleges that

Stifel essentially stripped her of all of her job responsibilities. Rather than

assigning Olivieri to support a different investment professional, Codignotto

informed Olivieri that she was expected to spend her working hours preparing for

the Series 9 and 10 certifications. Meanwhile, Isler faced no repercussions.

On January 5, 2021, Olivieri filed her complaint against Stifel in this case,

alleging NYSHRL claims involving gender discrimination, a hostile work

environment, and retaliation. A few months later, on May 20, 2021, Olivieri filed

an amended complaint, which named Neil Isler as a defendant and asserted

additional claims, including gender-based hostile environment and retaliation

claims under Title VII.

Eight days later, in what Olivieri alleges was another instance of retaliation,

Codignotto told Olivieri that he was transferring her from the Garden City office

to Melville to work for four different advisors. Over the course of several emails,

Olivieri asked Codignotto if she would be fired if she did not agree to the transfer,

14 and he said yes: “If you choose not to accept this role and report to the Melville

office on June 1, we will consider this your resignation.” Jt. App’x at 327.

Olivieri tried to arrange to work remotely instead of reporting to the

Melville location, because she was pregnant and vulnerable to COVID-19

complications. But she was ultimately unable to get permission to work remotely

and reported to Melville on June 1.

When she arrived, she discovered that her assigned workstation was dirty

and had obviously not been cleaned after a previous employee used it. Olivieri

also learned that one of her colleagues was being transferred to Garden City

because she had been promoted to work as an Administrative Assistant to the

Branch Manager. About three months earlier, Olivieri had applied to the position

at Codignotto’s suggestion; he said Olivieri would have been a perfect fit. The

position required additional licenses, and at the time, Olivieri had already gotten

her Series 9 license and was in the process of getting her Series 10 license. Olivieri

had also previously obtained Series 7 and Series 63 licenses. The candidate who

received the position had none of these licenses.

Nevertheless, Olivieri didn’t get the job. She didn’t even get an interview.

After her transfer, Codignotto continued to retaliate against Olivieri and diminish

15 her role. In response to the additional conduct, Olivieri filed a supplemental

complaint in this case on June 16, 2021, adding Codignotto as a defendant.

II. Return from Maternity Leave Post-EFAA

On October 29, 2021, Olivieri went on maternity leave. When she was ready

to return to work, she alleges that Stifel frustrated her arrival by dilatorily

processing her request for a remote work accommodation. Ten days before she

was set to return, she reached out to HR to coordinate an accommodation. Stifel

took more than a week to provide Olivieri forms for her and her medical provider

to complete, leaving Olivieri only two days to complete the forms before she was

scheduled to return. Contrary to Stifel’s established practice of providing

employees an interim accommodation while paperwork was being processed,

Stifel did not extend such accommodation to Olivieri. It also withheld her pay

while the request was pending. Olivieri contends Stifel’s conduct toward her was

retaliation for this lawsuit.

Eventually, Olivieri returned to work on March 10, 2022. But when she

returned, Stifel had placed her in a completely different and unrelated role

reporting to Neal Manfredi, Central Supervision Supervisor. Olivieri alleges that,

over the following months, Stifel had a pattern of reassigning her position and

limiting her job responsibilities.

16 The week after Olivieri returned from maternity leave, Scelta scheduled a

meeting to discuss Olivieri’s medical accommodation with Olivieri and

Codignotto. Olivieri was surprised that Scelta had involved Codignotto, one of

Olivieri’s accused harassers whom she had sued in this lawsuit. Olivieri told

Scelta that making her discuss her medical needs with Codignotto felt “like a

continuation of Stifel’s efforts to harass and intimidate” her. Jt. App’x at 337.

In a March 25 email, Stifel confirmed it was still attempting to find a role for

Olivieri. It also mentioned that the company had revoked her privileges to access

systems that were essential to her previous role as a Client Services Associate.

In her new role, Olivieri alleges that Stifel undermined her ability to fulfill

her responsibilities. For example, on March 31, 2022, Olivieri’s supervisor,

Manfredi, encouraged her to reach out to the IT department to request an

additional monitor to help her work more efficiently at home. After she did,

however, Scelta scolded Olivieri for not first getting Codignotto’s approval—even

though Scelta was aware that requiring Olivieri to communicate with Codignotto

would cause her unnecessary distress.

Olivieri also alleges that the company treated her differently, and more

harshly, than other employees. On April 5, 2022, she stepped away from her desk

for a brief period to attend a doctor’s appointment. In a deviation from its

17 longstanding practice in such situations, Scelta docked Olivieri’s PTO in 15-minute

increments while she was away from her computer. Stifel did not dock the PTO

of any other employee in a similar manner.

Stifel’s behavior prompted Olivieri to send an email to Julie Gaffney, a

Senior HR Business Partner, on April 8, 2022, memorializing her concerns. Citing

her shifting job responsibilities, among other things, she said she was continuing

to be subjected to “retaliation and a hostile work environment.” Jt. App’x at 340.

Gaffney advised Olivieri that she no longer needed to obtain additional securities

licenses as such licenses were not necessary for a “support role” at Stifel, which

Olivieri understood to mean that she was no longer being considered for

advancement. Id. at 341.

In addition, following her return from maternity leave, Stifel took steps to

exclude Olivieri at the company. On May 23, 2022, for example, Stifel held a

mandatory semi-annual compliance meeting, but it failed to take measures to

include Olivieri. In addition, Stifel didn’t communicate announcements about

early dismissals to her, requiring her to work when other employees were allowed

to leave. And Stifel again dragged its feet when it came to giving her necessary

supplies. It took until July 2022—months after Olivieri had made a request—for

Stifel to give her office supplies and shipping labels. On July 8, 2022, Scelta

18 informed Olivieri that Stifel had further docked her PTO for the time in which

Olivieri’s earlier accommodation request had been pending, which was not Stifel’s

ordinary practice.

III. Procedural Background

Throughout the district court proceedings, and at the time of this appeal,

Olivieri has remained employed at Stifel. As mentioned above, Olivieri filed her

first complaint on January 5, 2021. Federal jurisdiction was predicated on

diversity. In that initial pleading, Olivieri named only Stifel as a defendant and

alleged two NYSHRL claims: one claiming gender discrimination and a hostile

work environment, and another claiming retaliation.

Olivieri amended her complaint in May 2021. This amended complaint

added Isler as a defendant and three additional claims, including two claims under

Title VII paralleling her initial NYSHRL claims. Olivieri filed a supplemental

complaint the following month, on June 16, in which she added Codignotto as a

defendant.

Defendants subsequently moved to compel arbitration of Olivieri’s claims

in August 2021, citing the arbitration clause in Olivieri’s employment agreement.

While the motion was under consideration, Congress passed the EFAA,

which took effect with the President’s signature on March 3, 2022. No party

19 alerted the court to its passage. A few weeks later, without any mention of the

EFAA, the district court granted Defendants’ motion, sending Olivieri’s claims to

arbitration on account of her prior agreement with Stifel. Olivieri I,

, at *5.

Olivieri subsequently filed a motion for reconsideration of the district

court’s arbitration order based on the EFAA. Throughout all this time, Olivieri

continued to work at Stifel, so she also sought leave to file another complaint—the

SAC—updating her allegations and adding Scelta and Gaffney as individual

defendants.

In March 2023, the district court granted Olivieri’s motion for

reconsideration and denied Defendants’ motion to compel arbitration. See Olivieri

II,

, at *7. The district court concluded that reconsideration was

warranted in light of the intervening change in law and held that Olivieri’s hostile

work environment claims constituted ongoing claims subject to the continuing

violation doctrine of accrual.

at *6–7. It concluded that the EFAA applied, and

that the arbitration agreement was unenforceable.

. As a result, it vacated

its earlier order granting Defendants’ motion to compel arbitration and held that

Olivieri’s claims would be adjudicated in court.

The district court also granted

Olivieri’s motion to file the SAC. See

at *3–4.

20 Defendants Stifel, Isler, and Codignotto timely appealed, challenging the

district court’s reconsideration order declining to compel arbitration. 3 See

(a)(1)(C) (allowing interlocutory appeal of denial of application to compel

arbitration); Moss v. First Premier Bank,

(2d Cir. 2016) (holding

interlocutory appellate jurisdiction extends to appeal from vacatur of prior order

compelling arbitration). The district court stayed proceedings pending this

appeal.

DISCUSSION

We review orders granting reconsideration for abuse of discretion. See

Cohen v. UBS Financial Services, Inc.,

(2d Cir. 2015)

(reconsideration). But because “a district court necessarily abuses its discretion

when it makes an error of law,” we review legal determinations without deference.

Sacerdote v. Cammack Larhette Advisors, LLC,

(2d Cir. 2019); see also

Meyer v. Uber Technologies, Inc.,

(2d Cir. 2017) (explaining that we

review orders denying a motion to compel arbitration without deference to the

district court’s legal conclusions).

3 On appeal, Defendants do not challenge the district court’s grant of Olivieri’s motion for leave to file the SAC, included in the same order as the district court’s rejection of Defendants’ motion to compel arbitration. 21 Congress enacted the Federal Arbitration Act (FAA) in 1925 so that courts

would put arbitration agreements “on equal footing with all other contracts” and

enforce them according to their terms. Buckeye Check Cashing, Inc. v. Cardegna,

(2006). In general, the FAA mandates that agreements to arbitrate

are “valid, irrevocable, and enforceable.”

. Enacted in 2022, the EFAA

is the first major amendment in the history of the FAA. See David Horton, The

Limits of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act,

132 YALE L.J. FORUM 1, 1 (2022).

The EFAA is codified directly into the FAA and limits the scope of this broad

mandate to enforce arbitration agreements. In relevant part, in provides that:

Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.

(a).

A “predispute arbitration agreement” is “any agreement to arbitrate a

dispute that had not yet arisen at the time of the making of the agreement.”

§ 401(1). A “sexual assault dispute” refers to “a dispute involving a nonconsensual

22 sexual act or sexual contact, as such terms are defined in [

] or

similar applicable Tribal or State law, including when the victim lacks capacity to

consent.”

§ 401(3). And a “sexual harassment dispute” is “a dispute relating

to conduct that is alleged to constitute sexual harassment under applicable

Federal, Tribal, or State law.” Id. § 401(4).

By its terms, the EFAA applies “with respect to any dispute or claim that

arises or accrues on or after the date of enactment of this Act”—i.e., March 3, 2022. 4

,

, 28 (2022).

The central issue in this appeal is whether Olivieri’s claims accrued “on or

after” the Effective Date—March 3, 2022—such that the EFAA applies to this case.

In assessing this question, we first consider what it means for Olivieri’s claims to

“accrue” under the EFAA. We then consider Olivieri’s operative complaint to

determine whether Olivieri’s claims accrued on or after the Effective Date of the

statute.

4 It makes no legal difference that this provision is codified in a statutory note, not the main body, of the United States Code. See U.S. Nat. Bank of Oregon v. Independent Ins. Agents of America, Inc.,

(1993) (“Though the appearance of a provision in the current edition of the United States Code is ‘prima facie’ evidence that the provision has the force of law,

(a), it is the Statutes at Large that provides the ‘legal evidence of laws,’ § 112, and despite its omission from the Code [the relevant provision] remains on the books if the Statutes at Large so dictates.”); see also Cameron v. McDonough,

(Fed. Cir. 2021) (concluding an effective date from the Statutes at Large appearing as a statutory note in the United States Code was law); Johnson v. Everyrealm, Inc.,

, 559 n.19 (S.D.N.Y. 2023) (same for the EFAA). 23 I. Accrual under the EFAA

Whether the EFAA governs turns on the meaning of the phrase “any . . .

claim . . . accrues.”

, 136 Stat. at 28. Defendants argue that

Olivieri’s claims accrued before the Effective Date, so the EFAA doesn’t apply and

Olivieri’s arbitration agreement is therefore valid and enforceable. According to

them, a claim accrues when it first becomes actionable. Olivieri filed her

retaliatory hostile work environment claim in 2021, before the EFAA was enacted.

So, Defendants reason, her claims must have accrued—meaning they became

actionable—before she filed them. To hold otherwise would be illogical, they

claim, because it would mean her claims accrued both before and after the EFAA,

making her claims somehow both arbitrable and not. And it would lead to

impermissibly retroactive application of the EFAA.

Olivieri disagrees. She argues that her hostile work environment claims are

subject to the continuing violation doctrine and that, as a result, they accrued after

the Effective Date. As alleged in the SAC, she continued to experience a retaliatory

hostile work environment after the EFAA was enacted, so her claims continued to

accrue post-EFAA under the continuing violation doctrine. As a result, she argues

the arbitration agreement she signed is invalid and enforceable.

24 We agree with Olivieri. To get there, we consider what it means for a claim

to “accrue,” and conclude that the concept is tightly bound with the operation of

statutes of limitations. Thus, when a claim accrues turns on the law applicable to

the type of claim in question. In the context of claims subject to the continuing

violation doctrine, a claim first accrues when the plaintiff has an actionable claim;

but because such a claim is a single and indivisible claim arising from numerous

specific acts undertaken in a continuing course, the claim reaccrues—it is

essentially reborn—with each successive act that is part of that continuing course.

We reject Defendants’ arguments that in the EFAA Congress intended the phrase

“any . . . claim . . . accrues” to mean only when a claim “first accrues,” that the term

in the EFAA has something other than its accepted legal meaning, that our

interpretation leads to absurd results, and that we are impermissibly applying the

EFAA retroactively.

A. Accrual and Statutes of Limitations

The question of whether and when a claim accrued is almost invariably tied

to the question whether it is timely under the applicable statute of limitations. “As

a general matter,” the Supreme Court has explained, “a statute of limitations

begins to run when the cause of action accrues—that is, when the plaintiff can file

25 suit and obtain relief.” Heimeshoff v. Hartford Life & Acc. Ins. Co.,

(2013) (internal quotation marks and citation omitted).

The Supreme Court has recognized that “it is theoretically possible for a

statute to create a cause of action that accrues at one time for the purpose of

calculating when the statute of limitations begins to run, but another time for the

purpose of bringing suit,” but said it would “not infer such an odd result in the

absence of any such indication in the statute.” Reiter v. Cooper,

(1993).

And the Court has recently explained that generally, “[a] ‘right accrues

when it comes into existence’—i.e., ‘when the plaintiff has a complete and present

cause of action.’” Corner Post, Inc. v. Board of Governors of Federal Reserve System,

, 2451 (2024) (first quoting United States v. Lindsay,

(1954); then quoting Gabelli v. SEC,

(2013)). In all of these cases

considering when a claim accrues, the Court was considering when the limitations

period started running.

This Circuit has likewise observed the connection between the concept of a

claim accruing and the running of the limitations period. In Benzemann v. Citibank

N.A., we rejected an interpretation of the Fair Debt Collection Practices Act that

suggested a cause of action accrued at one time for the purpose of calculating when

26 the statute of limitations begins to run, and at a different time for the purposes of

when the plaintiff could actually bring suit.

(2d Cir. 2015) (“The

Supreme Court teaches that courts should avoid interpreting statutes of

limitations in a way that creates such an anomaly.”).

And we have frequently recognized that “[a]ccrual is the date on which the

statute of limitations begins to run.” Valdez ex rel. Donely v. United States,

(2d Cir. 2008) (quoting Cada v. Baxter Healthcare Corp.,

(7th Cir. 1990)). See also Williams v. Binance,

(2d Cir. 2024)

(“[L]imitations periods begin to run when the cause of action accrues—that is,

when the plaintiff can file suit and obtain relief.”) (quoting California Public Employees'

Retirement System v. ANZ Securities, Inc.,

, 504–05 (2017)); City of Pontiac

General Employees’ Retirement System v. MBIA, Inc.,

(2d Cir. 2011)

(“Only after a plaintiff can adequately plead [a] claim can that claim be said to

have accrued, and only after a claim has accrued can the statute of limitations on

that claim begin to run.”); Hoelzer v. City of Stamford, Conn.,

(2d

Cir. 1991) (“[A] crucial legal issue is presented involving accrual of the cause of

action—that is, when the statute of limitations begins to run on the [plaintiff’s]

claim.”).

27 For this reason, we often refer to a claim accruing and the limitations period

starting as two sides of the same coin. See, e.g., 53rd Street, LLC v. U.S. Bank National

Association,

(2d Cir. 2021) (“For a mortgage payable in installments,

separate causes of action accrue for each installment that is not paid, and the

statute of limitations begins to run, on the date each installment becomes due.”)

(citation omitted, internal quotation marks omitted, and alteration adopted);

Bankers Trust Co. v. Rhoades,

(2d Cir. 1988) (“Generally, a cause

of action under the Clayton Act accrues and the statute of limitations begins to

run, when a defendant commits an antitrust violation that injures a plaintiff’s

business.”).

In short, the time a claim “accrues” means the point at which the statute of

limitations clock starts ticking. 5

B. Different Claims, Different Accrual

So when does a claim accrue? As it turns out, it depends. When a claim

“accrues”—that is, when the limitations period starts to run—depends on the

nature of the claim, and is informed by common law principles. See McDonough v.

5 Once a claim accrues, the limitations period may stop running due to tolling. See Valdez,

(“Tolling doctrines stop the statute of limitations from running even if the accrual date has passed.” (quoting Cada,

)); see also Koral v. Saunders,

, 413 (2d Cir. 2022) (noting that tolling “is conceptually distinct from accrual of a limitations period”). Like accrual, tolling affects when claims are timely. But tolling doesn’t come into the picture until and unless claims have already accrued.

U.S. 109, 116 (2019) (discussing, in the context of

, how

the Supreme Court often decides accrual questions by referring to the common

law). Different causes of action accrue differently, so there are “hazards inherent

in attempting to define for all purposes” the point at which a cause of action

accrues. 6 Crown Coat Front Co. v. United States,

(1967). Federal

law determines when federal causes of actions accrue, see Kronisch v. United States,

(2d Cir. 1998), just like state law determines when state-law

claims accrue, see Personis v. Oiler,

(2d Cir. 1989). Within each

body of law, there are different accrual rules depending on the nature of the cause

of action.

Some claims arise when the defendant commits the injurious act. See, e.g.,

Zenith Radio Corp. v. Hazeltine Rsch., Inc.,

(1971) (holding that

Clayton Act claims “accrue[] and the statute begins to run when a defendant

commits an act that injures a plaintiff’s business”). Some arise when the plaintiff

experiences the injury. See, e.g., Snyder v. Town Insulation, Inc.,

, 432–

33 (1993) (slip-and-fall negligence claim). Others don’t accrue until a plaintiff

6 This is fully consistent with the Supreme Court’s recent guidance in Corner Post. In rejecting Justice Jackson’s dissenting view that “different claims accrue at different times,” Corner Post, 144 S. Ct. at 2475 (Jackson, J., dissenting), the majority was rejecting the argument that “the same words ‘right of action first accrues’ in a single statute should mean different things in different contexts,” id. at 2457 (majority op.). 29 discovers, or should have discovered, the injury caused by a defendant’s conduct.

See, e.g., Merck & Co., Inc. v. Reynolds,

(2010) (describing the

discovery rule as “a doctrine that delays accrual of a cause of action until the

plaintiff has ‘discovered’ it” and that emerged because “something different was

needed” because “a defendant’s deceptive conduct may prevent a plaintiff from

even knowing that he or she has been defrauded”); Koch v. Christie’s Int’l PLC,

(2d Cir. 2012) (claim of unwitting buyer of counterfeit wine

purported to have belonged to Thomas Jefferson accrued when the plaintiff

“discovered or should have discovered the injury” (internal quotation marks and

citation omitted)).

But that’s not all. Some causes of action accrue serially: they accrue (and

reaccrue) pursuant to the continuing violation doctrine. That doctrine “provides

an exception to the normal knew-or-should-have-known accrual date”—meaning

an exception to how accrual normally works. Tassy v. Buttigieg,

(2d Cir. 2022) (quoting Gonzalez v. Hasty,

(2d Cir. 2015)). For

claims that are “composed of a series of separate acts that collectively constitute

one ‘unlawful . . . practice,’” the continuing violation doctrine lays out an

alternative framework for evaluating accrual. National R.R. Passenger Corp. v.

Morgan,

(2002) (quoting 42 U.S.C. § 2000e–5(e)(1)).

30 Because such claims are made up of a series of acts, they accrue and reaccrue

with each successive act that is part of the singular unlawful practice. Gonzalez,

.

C. Hostile Work Environment Claims

A common type of claim subject to the continuing violation doctrine, and

the one relevant to this case, is a hostile work environment claim. Those claims

are subject to the continuing violation doctrine because, unlike discrete acts,

“[t]heir very nature involves repeated conduct.” Morgan,

. A hostile

work environment generally doesn’t occur on any one day; it emerges “over a

series of days or perhaps years.”

It is this “constellation of events” that gives

rise to a hostile work environment claim. King v. Aramark Services, Inc.,

(2d Cir. 2024). As a result, the continuing violation doctrine provides that

such claims do not accrue—and the statute of limitations period does not begin to

run—“until the last discriminatory act in furtherance of” the hostile work

environment. Tassy,

(quoting Harris v. City of New York,

(2d Cir. 1999)); see Green v. Brennan,

(2016) (stating that

“limitations period for hostile-work-environment claim runs from the last act

composing the claim”). That means that such claims accrue, and reaccrue, each

time the defendant commits an act that is part of the same course of harassing

31 conduct. “[I]f ‘an act contributing to the hostile environment occurs within the

filing period,’ the hostile work environment claim is timely, and a factfinder can

hold a defendant liable for ‘the entire time period of the hostile environment,’

including the period falling outside of the limitations period.” King,

(alteration adopted) (quoting Morgan,

); see also Morgan,

(explaining that if hostile work environment occurred on days 1–400, claim

reaccrues with each hostile act even “if sufficient activity occurred by day 100 to

make out a claim”); Almond v. Unified Sch. Dist. No. 501,

(10th

Cir. 2011) (Gorsuch, J.) (“Morgan held that hostile work environment claims accrue

each time acts contributing to that environment occur.” (emphasis omitted)).

Accordingly, though we agree with Defendants that a claim accrues when

it “comes into existence,” Appellants’ Br. at 3, we disagree that this definition is

the end of the matter. A hostile work environment claim continues to accrue, or

reaccrues, each time the defendant engages in an act that is “part of the ongoing,

discriminatory practice that created a hostile work environment.” King,

.

D. Accrual versus “First” Accrual

We thus reject Defendants’ argument that Olivieri’s claim must have

accrued before the EFAA’s effective date because she filed suit before the EFAA’s

32 enactment. This reasoning might make sense in the context of a claim for which

there is a single accrual date, but not in the context of a claim subject to the

continuing violation doctrine. Under that doctrine, Olivieri’s claim did accrue

before the EFAA was enacted. And it reaccrued with each successive act that was

part of the single continuing course of conduct underlying the hostile work

environment claims. Because hostile work environment claims continue to accrue

“until the last discriminatory act in furtherance of” the hostile work environment,

such claims can have multiple accrual dates. Tassy,

(quoting Harris,

).

Defendants admit that the term “accrual” has “‘different meanings in

different contexts,’” Appellants’ Br. at 16–17 (quoting F.A.A. v. Cooper,

(2012)), but they resist the logical consequence of that acknowledgment.

Essentially, Defendants ask us to read the statute in this context as tying a claim’s

accrual date to the date it first accrued.

But if Congress wanted the EFAA to apply only to claims that “first” accrue

after its enactment, it could have said so. Congress is clearly familiar with the

phrase, which appears in multiple other statutes. See, e.g.,

(“[E]very civil action commenced against the United States shall be barred unless

the complaint is filed within six years after the right of action first accrues”

33 (emphasis added));

§§ 2415(b), 2462, 2501, 2636(i) (establishing limitations

period for other causes of actions when such claim “first accrues”);

(d) (same, but for patent claims). If Congress had tied the effective date of

the EFAA to when a claim first accrues, we might reach a different conclusion. But

it didn’t, and we “do not lightly assume that Congress has omitted from its

adopted text requirements that it nonetheless intends to apply.” Jama v. Immigr. &

Customs Enf’t,

(2005); see also

(noting “our reluctance is even

greater when Congress has shown elsewhere . . . that it knows how to make such

a requirement manifest”).

E. Ordinary Public Meaning

We likewise reject Defendants’ argument that such an interpretation of

accrual is inconsistent with its ordinary public meaning. Accrual is fundamentally

a legal concept; it’s hard to imagine that claim accrual has an “ordinary” meaning

outside of the legal system. And when Congress uses language that has an

established legal meaning, absent an indication to the contrary, we should be wary

of inferring that it actually meant something else. See F.A.A.,

(“[W]hen Congress employs a term of art, it presumably knows and adopts the

cluster of ideas that were attached to each borrowed word in the body of learning

from which it was taken.” (citation and internal quotation marks omitted));

34 Williams v. Wilmington Tr. Co.,

(2d Cir. 2003) (“Indeed, when

Congress uses in a statute a term of art with a long history of judicial

interpretation, we must presume that Congress intends to use the word in its

technical sense.”). In short, the ordinary public meaning of a “claim . . . accrues”

is the same as the established legal meaning, including that hostile work

environment claims accrue with each wrongful act.

The presumption that Congress intended this meaning of “accrual” is

particularly appropriate here because the EFAA applies to “sexual harassment

dispute[s],”

, which are prototypical “hostile work environment”

claims, see Meritor Savs. Bank, FSB v. Vinson,

(1986) (describing

standard for “‘hostile environment’ sexual harassment” claims). 7 So in providing

that the EFAA applies to claims that accrue after the effective date of the statute,

Congress knew that the accrual rules that apply to hostile work environment

claims would come into play in such cases.

F. Absurd Result

7 Legislative history confirms what is clear on the face of the statute: Congress was aware the statute would apply to hostile work environment claims. See 168 Cong. Rec. H983-09, H987 (daily ed. Feb. 7, 2022) (Rep. Hakeem Jeffries stating that “[t]he women of America have a right to be free of a hostile work environment”);

at H988 (Rep. Sheila Jackson Lee discussing a case involving allegations of “a sexually charged and hostile work environment”);

at H991 (Rep. Bobby Scott discussing a scenario involving a “sexually offensive and hostile environment”). 35 As noted above, there is nothing absurd about concluding that an indivisible

but continuing claim accrued both before the enactment of the EFAA and after. To

the contrary, the Supreme Court has held that hostile work environment claims

accrue in just such a manner. See Morgan, 536 U.S. at 115–17. The serial accrual is

a product of the continuing nature of the conduct supporting the plaintiff’s cause

of action and the legal framework of the continuing violation doctrine. Insofar as

Defendants raise “public-policy considerations” to avoid the statute’s plain

meaning, Appellants’ Br. at 26, such “policy concerns cannot trump the best

interpretation of the statutory text,” Patel v. Garland,

(2022). 8

G. Retroactivity

Finally, we reject Defendants’ contention that the EFAA cannot apply to

Olivieri’s case because that would impermissibly give the statute retroactive effect.

We recognize that “[s]tatutory retroactivity has long been disfavored.”

Landgraf v. USI Film Products,

(1994). As a result, courts have

fashioned a presumption against retroactivity that “is deeply rooted in our

8 We note that the Eighth Circuit recently held that the EFAA applied to a lawsuit filed in July 2022 because the “dispute” did not arise until the plaintiff had asserted a claim against the defendant, even though the alleged sexual assault and harassment occurred prior to the EFAA’s March 3, 2022 effective date. See Famuyide v. Chipotle Mexican Grill, Inc., --- F.4th ---,

, at *1–2 (8th Cir. Aug. 5, 2024) (affirming denial of motion to compel arbitration). Although we need not here decide whether to adopt the Eighth Circuit’s reasoning, its decision supports our conclusion that events occurring before the EFAA’s effective date can be relevant to application of the EFAA. 36 jurisprudence, and embodies a legal doctrine centuries older than our Republic.”

. In light of this presumption, we decline to give a statute retroactive

effect “unless such construction is required by explicit language or by necessary

implication.” Fernandez-Vargas v. Gonzales,

(2006) (quoting United

States v. St. Louis, S.F. & T.R. Co.,

(1926)).

The Supreme Court has provided a three-step process for determining

whether a statute should be retroactively applied. First, courts ask “whether

Congress has expressly prescribed the statute’s proper reach, and in the absence

of language as helpful as that we try to draw a comparably firm conclusion about

the temporal reach specifically intended by applying ‘our normal rules of

construction.’”

(internal quotation marks and citations omitted). “If that effort

fails,” courts next consider “whether applying the statute to the person objecting

would have a retroactive consequence in the disfavored sense of affecting

substantive rights, liabilities, or duties on the basis of conduct arising before its

enactment.”

(internal quotation marks omitted and alterations adopted). If the

answer to that question is yes, then courts “apply the presumption against

retroactivity by construing the statute as inapplicable to the event or act in

question.”

at 37–38.

37 Our analysis starts and ends at the first step for at least two reasons. First,

given the ongoing nature of a hostile work environment claim, which is a singular

claim predicated on a series of acts over a course of time, to the extent that Olivieri

alleges post-Effective-Date conduct, the application of the statute to a claim arising

in part from that conduct can’t properly be described as “retroactive.” Defendants’

contractual rights are affected not just by “conduct arising before [the EFAA’s]

enactment,” Landgraf,

, but also by conduct that occurred after its

enactment.

Second, even if application of the EFAA to conduct predating the statute

could be considered retroactive, for the reasons set forth above, Congress has

expressly indicated that the statute applies to claims that accrue after the statute’s

effective date—which in the context of continuing claims may involve conduct that

predated the EFAA. As set forth above, Congress has expressed its intent with

sufficient clarity to resolve the retroactivity question at the first step. 9

9 Defendants’ retroactivity argument is based on the retroactive effect of the statute on claims or disputes that Defendants contend arose before the EFAA’s effective date. Defendants do not argue that the statute is impermissibly retroactive in effect insofar as it affects the parties’ rights under arbitration agreements executed before the statute’s effective date. Reply Br. at 13 n.3 (“Whether or not Congress intended the [EFAA] to apply to arbitration agreements that were

38 We have recognized that “Congress may, within constitutional limits, enact

laws that operate retroactively.” Herrera-Molina v. Holder,

(2d

Cir. 2010). In this case, Defendants have not raised constitutional arguments, and

“the potential unfairness of retroactive civil legislation is not a sufficient reason for

a court to fail to give a statute its intended scope.” Landgraf,

.

II. Application to Olivieri’s Claims

Given the above framework, we have little difficulty in concluding that

Olivieri’s case includes claims subject to the EFAA. Olivieri’s retaliation-based

hostile work environment claims under Title VII and the NYSHRL accrued after

the Effective Date. See Carr v. New York City Transit Auth.,

(2d Cir.

2023) (discussing standard for “retaliatory hostile work environment claim”). As

discussed above, hostile work environment claims—under both Title VII and the

NYSHRL—are subject to the continuing violation doctrine of accrual, meaning

they accrue at the last act in furtherance of the hostile work environment. See King,

entered into before the Act’s passage is irrelevant to the question here. The relevant question is whether the Act affects the substantive rights of the parties’ under their arbitration agreements ‘[on the basis of] conduct arising before [its] enactment.’” (quoting Fernandez-Vargas,

)). Because we conclude that Congress expressly prescribed the proper application of the EFAA to pending claims, we need not decide whether, at step two of the analysis, arbitration agreements create substantive rights or, instead, prescribe procedural rules that may be modified by Congress “without raising concerns about retroactivity.” Landgraf,

. 39 96 F.4th at 559–60 (Title VII); Lozada v. Hook,

(App. Div. 2d

Dep’t 2017) (NYSHRL).

President Biden signed the EFAA on March 3, 2022, while Olivieri was

wrapping up maternity leave. By the time she returned to work a week later, the

EFAA was in effect. So, if Olivieri has alleged that upon her return Defendants

engaged in acts that are part of the same course of conduct underlying her hostile

work environment claims, those claims have accrued after the EFAA’s effective

date.

She has so alleged. For starters, Olivieri alleges Stifel retaliated against her

by dragging its feet on processing her accommodation request and, contrary to

ordinary practice, withheld her pay while the request was pending. On top of that,

Olivieri alleges a persistent pattern of changing her role in response to her

complaints of sexual harassment and misconduct. She alleges she was purposely

left out of meetings and kept in the dark about company news, including early

dismissals. Moreover, she alleges that Stifel departed from its ordinary practice

when it docked her PTO in 15-minute increments when she stepped away from

her desk for a doctor’s appointment. Accepting these facts as true—as we must

for this appeal—we conclude that the retaliatory conduct Olivieri alleges she

experienced upon her return is similar in kind to the retaliatory conduct she

40 experienced before her leave, such that it is “part of the [same] course of

discriminatory conduct that underlies” her retaliation-based hostile work

environment claims. King,

.

Defendants briefly argue in their reply brief that the EFAA does not apply

to Olivieri’s retaliation claims because such claims do not fall within the definition

of a “sexual harassment dispute.” Reply Br. at 17, 24–25. The argument is waived

for failure to raise it in the opening brief, see JP Morgan Chase Bank v. Altos Hornos

de Mex., S.A. de C.V.,

(2d Cir. 2005), and also is meritless. The

EFAA defines a “sexual harassment dispute” as “a dispute relating to conduct that

is alleged to constitute sexual harassment under applicable Federal, Tribal, or State

law.”

(4) (emphasis added). This Court has recognized that

retaliation for reporting discrimination “is reasonably related to the underlying

discrimination,” such that a plaintiff who exhausts a discrimination claim with the

EEOC may also pursue a claim for retaliation. Legnani v. Alitalia Linee Aeree Italiane,

S.P.A.,

(2d Cir. 2001) (internal quotation marks and citation

omitted). Under similar reasoning, retaliation resulting from a report of sexual

harassment is “relat[ed] to conduct that is alleged to constitute sexual

harassment.”

(4); see Johnson, 657 F. Supp. 3d at 551 n.13, 559

(reaching same conclusion).

41 Accordingly, Olivieri’s retaliatory hostile work environment claims accrued

after March 3, 2022, and the EFAA applies to this case. 10

CONCLUSION

For these reasons, we AFFIRM the order of the district court: Olivieri’s case

remains in federal court because her arbitration agreement is, at her election,

invalid and unenforceable.

10 In their reply brief, Defendants raise for the first time an argument that has been addressed by district courts in other cases. See, e.g., Johnson, 657 F. Supp. 3d at 559–61. They argue that even if the EFAA does apply to Olivieri’s retaliation-based hostile work environment claims, it does not reach any claims based on acts of assault and sexual harassment committed by Isler, all of which predated enactment of the EFAA. Reply Br. at 18–28. Absent some showing of manifest injustice, “arguments not made in appellant’s opening brief are waived even if the appellant pursued those arguments in the district court or raised them in a reply brief [on appeal].” JP Morgan Chase Bank,

. Accordingly, we deem Defendants’ claim-splitting argument abandoned. 42