DINA ANDKHOY v. NORDSTROM, INC., et al.

Plaintiff alleges eleven causes of action: (1) Discrimination; (2) Hostile Work Environment; (3) Retaliation; (4) Failure to Provide Reasonable Accommodation; (5) Failure to Engage in the Interactive Process; (6) Failure to Prevent Discrimination, Harassment, or Retaliation; (7) Breach of Express Oral Contract Not To Terminate Employment Without Good Cause; (8) Breach of Implied-In-Fact Contract Not To Terminate Employment Without Good Cause; (9) Negligent Hiring, Supervision, and Retention; (10) Wrongful Termination of Employment in Violation of Public Policy; and (11) Intentional Infliction of Emotional Distress.

On February 5, 2026, Defendants filed a motion to compel arbitration. On July 10, 2026, Plaintiff filed an opposition. On July 16, 2026, Defendants filed a reply.

REQUEST FOR JUDICIAL NOTICE

Defendants' request for judicial notice of trial orders in other cases (Exhibits 1-11) is granted. Plaintiff's request for judicial notice of CACI No. 2521C is granted. Plaintiff's request for judicial notice of Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 is granted. Plaintiff's request for judicial notice of Government Code section 12940, subdivision (j)(4)(C) is granted. Plaintiff's request for judicial notice of trial orders in other cases (Exhibits 5-10) is granted.

DISCUSSION

When seeking to compel arbitration of a plaintiff's claims, the defendant must allege the existence of an agreement to arbitrate. (Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 219.) The burden then shifts to the plaintiff to prove the falsity of the agreement. (Ibid.) After the Court determines that an agreement to arbitrate exists, it then considers objections to its enforceability. (Ibid.) The Court must grant a petition to compel arbitration unless the defendant has waived the right to compel arbitration or if there are grounds to revoke the arbitration agreement. (Ibid.; Code Civ.

Proc., Sec. 1281.2.) Under California law and the Federal Arbitration Act, an arbitration agreement may be invalid based upon grounds applicable to any contract, including unconscionability, fraud, duress, and public policy. (Sanchez v. Western Pizza Enterprises, Inc. (2009) 172 Cal.App.4th 154, 165-166.)

A. Defendants Have Shown The Existence of An Arbitration Agreement With a Delegation Clause.

In ruling on a motion to compel arbitration, the Court must first determine whether the parties actually agreed to arbitrate the dispute, and general principles of California contract law help guide the court in making this determination. (Mendez v. Mid-Wilshire Health Care Center (2013) 220 Cal.App.4th 534, 541; Victoria v. Superior Court (1985) 40 Cal.3d 734, 739.) Although "[t]he law favors contracts for arbitration of disputes between parties" (Player v. Geo. M. Brewster & Son, Inc. (1971) 18 Cal.App.3d 526, 534), "there is no policy compelling persons to accept arbitration of controversies which they have not agreed to arbitrate[.]" (Weeks v.

Crow (1980) 113 Cal. App. 3d 350, 353.) "[A]rbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." (AT&T Technologies v. Communications Workers (1986) 475 U.S. 643, 648 (citations and internal quotations omitted); see also Sparks v. Vista Del Mar Child & Family Services (2012) 207 Cal.App.4th 1511, 1518 ("Because arbitration is a contractual matter, a party that has not agreed to arbitrate a controversy cannot be compelled to do so").)

The Court finds Defendants have met their burden to show that an arbitration agreement exists. Nordstrom maintains a Dispute Resolution Program, which includes a mutual Dispute Resolution Agreement ("DRA"). (Fischbeck Decl., P. 4.) At the time Plaintiff applied for her position with Nordstrom, Plaintiff agreed to the terms and conditions of the 2012 DRA. (Fischbeck Decl., P.P. 9-10; Exhs. A-C.) Plaintiff was presented with a screen during her application process that prompted her to access and review the 2012 DRA. (Fischbeck Decl., P. 9.)

Plaintiff was required to click either "I Accept" or "I Decline" in order to move past the screen. (Fischbeck Decl., P. 9.) If Plaintiff had selected "I Decline," Plaintiff would not have been able to submit an application. (Fischbeck Decl., P. 9; Exh. B.) Further, as part of Plaintiff's onboarding, Plaintiff logged onto Nordstrom's Careers website, and again reviewed, accepted, and electronically signed the 2012 DRA. (Fischbeck Decl., P. 10; Exh. C.) Plaintiff can only log onto the Careers website if she entered her unique username and password. (Fischbeck Decl., P. 10; Exh.

C.) Plaintiff also signed the Employee Acknowledgement and Agreement Form upon hire, confirming she received the DRA and agreeing to abide by the Nordstrom Dispute Resolution Program. (Fischbeck Decl., P. 11; Exh. D.)

Additionally, the subsequent 2021, 2022, 2024, and 2025 DRAs expressly state that continuing employment for five days following receipt of the agreement constitutes acceptance of the agreement. (Fischbeck Decl., P.P. 25, 32, 40, 49.) With each subsequent DRA, Plaintiff was notified by emails including links to the updates, updates uploaded to her Workday account, and the updates posted to Defendant's intranet site. (Fischbeck Decl., P.P. 22-24, 29-31, 36-38, 43-48.) With each updated DRA, Plaintiff continued her employment for five days after receiving notice, thereby accepting the agreement. (Fischbeck Decl., P.P. 26, 33, 41, 50.) Defendants have met their burden to show Plaintiff electronically signed the 2012 DRA and continued her employment upon receiving notice of the subsequent agreements. Therefore, the Court finds a valid arbitration agreement exists.

B. The 2025 DRA is not void under the EFAA

Plaintiff does not dispute the 2025 DRA exists, but argues the instant dispute is excluded from arbitration pursuant to the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act ("EFAA"). (Opp., p. 9.) Plaintiff further argues the 2025 DRA does not apply because the 2025 DRA terms explicitly state the agreement does not cover sexual harassment and sexual assault disputes. (Opp., p. 8.)

United States Code title 9, section 402 reads, in relevant part: "(a) In general. - Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, ... 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. (b) Determination of applicability - An issue as to whether this chapter applies with respect to a dispute shall be determined under Federal law."

In order to determine whether the EFAA applies here, "[a] [c]ourt must first determine whether the plaintiff ' "alleges conduct constituting a sexual harassment dispute,' so as to come within the EFAA" ' and then decide[] whether 'the EFAA makes the arbitration agreement unenforceable as to the entirety of the [complaint]'s claims.' " (Ding v. Structure Therapeutics, Inc. (N.D. Cal. 2025) 765 F.Supp.3d 897, 899, quoting Johnson v. Everyrealm, Inc. (S.D.N.Y. 2023) 657 F.Supp.3d 535, 561.) For purposes of the EFAA, "[t]he term 'sexual harassment dispute' means a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law." (9 U.S.C.

Sec. 401(4).) The relevant State law here, the FEHA, defines " 'harassment' because of sex" to include "sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions", and qualifies that "[s]exually harassing conduct need not be motivated by sexual desire." (Gov. Code, Sec. 12940(j)(4)(C).)

Where Plaintiff's lawsuit contains at least one claim that fits within the scope of the EFAA, "the arbitration is unenforceable as to all claims asserted in the lawsuit." (Casey v. Superior Court (2025) 108 Cal.App.5th 575, 588.) The EFAA applies to a "case" as opposed to a claim, meaning the EFAA applies to the entire case. (Ibid.)

Plaintiff argues she has sufficiently alleged sexual harassment under FEHA, in the form of sexual orientation harassment, sexual harassment, and sexual favoritism. (Opp., pp. 9-11.) Actionable harassment under FEHA must "unreasonably interfere [] with an employee's work performance by creating an intimidating, hostile, or offensive work environment[.]" (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876.) In order to recover for harassment, an employee generally "must show a concerted pattern of harassment of a repeated, routine, or a generalized nature." (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283.)

a. Sexual Orientation Harassment

First, Plaintiff argues she has sufficiently alleged sexual orientation harassment under FEHA. (Opp., p. 10.) Harassment based on a plaintiff's sexual orientation is covered under EFAA. (9 U.S.C.A. Sec. 401(4); Cal. Gov. Code Sec. 12940(j)(1) [includes sexual orientation as a protected class against harassment.]) Here, Plaintiff alleges the following: Plaintiff made a comment suggesting Sano, Plaintiff's manager, visit Dubai. (Compl., P. 15(b).) Sano responded "your people wouldn't accept me. I am gay, they would kill me." (Compl., P. 15(b).)

The Court finds these allegations insufficient to constitute a sexual orientation harassment dispute. Plaintiff does not allege any remarks made regarding Plaintiff's own sexual orientation. In fact, Plaintiff's allegations merely suggest Sano made remarks regarding his own sexual orientation. Plaintiff fails to allege any discriminatory remarks made based on Plaintiff's sexual orientation as a heterosexual woman and further fails to allege a pattern of sexual orientation harassment. Accordingly, the Court finds Plaintiff has not sufficiently alleged sexual orientation harassment to find the EFAA applies.

b. Sexual Harassment

Plaintiff next argues Plaintiff has alleged sexual harassment independent of sexual orientation harassment. (Opp., p. 10.) Under FEHA, the elements of a sexual harassment cause of action are: "(1) plaintiff belongs to a protected group; (2) plaintiff was subject to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and (5) respondeat superior." (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608.)

Plaintiff alleges the following: Plaintiff is a woman in her forties. (Compl., P. 13.) When Plaintiff raised concerns about co-workers, Sano dismissed her by telling her to "be a good girl." (Compl., P. 15(g).) Male employees were never told to "be a good boy." (Compl., P. 15(g).) Male employees in Plaintiff's department were allowed to take frequent smoke breaks, but Plaintiff was dismissed when Plaintiff requested a schedule change to accommodate migraines. (Compl., P. 15(i).) Male employees were granted scheduling adjustments to accommodate Ramadan and other religious observances without issue, but when Plaintiff requested similar accommodations, Sano was visibly annoyed, and Plaintiff's colleagues began questioning why she was excused from certain closing shifts. (Compl., P. 15(j).)

Plaintiff's assistant, Taylor, made repeated comments about Plaintiff's appearance, telling her she looked too "classic" and needed to "dress like a younger girl." (Compl., P. 15(k).)

The Court finds these allegations insufficient to constitute a sexual harassment dispute. Plaintiff's allegations may suggest sexual discrimination, but they do not suggest harassment based on Plaintiff's gender. Further, Plaintiff fails to allege the harassment was sufficiently pervasive as to alter the conditions of employment and create an abusive working environment. The Court is unpersuaded by Plaintiff's argument that allegations of sex discrimination claims bring the instant suit under the EFAA. (Opp., p. 12.) The EFAA explicitly states it applies to allegations of sexual harassment or sexual assault disputes, not sex discrimination. (See 9 U.S.C. Sec. 402.) Accordingly, the Court finds Plaintiff has not sufficiently alleged sexual harassment to find the EFAA applies.

c. Sexual Favoritism

Finally, Plaintiff argues sexual harassment in the form of sexual favoritism. (Opp., p. 11.) "[A]n employee may establish an actionable claim of sexual harassment under the FEHA by demonstrating that widespread sexual favoritism was severe or pervasive enough to alter his or her working conditions and create a hostile work environment." (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 466.)

Plaintiff alleges the following: Taylor, her former assistant, was romantically involved with Hamson, Plaintiff's manager. (Compl., P. 15(e).) Taylor was promoted to shoe saleswoman and immediately began contacting Plaintiff's clients, diverting sales from Plaintiff. (Compl., P. 15(e).) Plaintiff reported Taylor to Defendant's human resources department, but they refused to discipline Taylor. (Compl., P. 15(f).)

The Court finds these allegations insufficient to constitute a sexual favoritism harassment dispute. By Miller 's holding, the sexual favoritism must be widespread to create a hostile work environment. (See Miller, supra, 36 Cal.4th at p. 466.) The plaintiff in Miller alleged several affairs with several different women for several years. (Id., at pp. 466-468.) Here, Plaintiff alleges a single romantic relationship in which one employee allegedly benefited from Plaintiff's client list without receiving any discipline or corrective action. Accordingly, the Court finds Plaintiff has not sufficiently alleged sexual harassment to find the EFAA applies.

For the EFAA to apply, Plaintiff must at least state a claim for harassment based on sex under the FEHA and, by incorporation, the EFAA. Plaintiff fails to allege conduct constituting a dispute for sexual harassment or sexual assault. The EFAA therefore does not preclude arbitration. Similarly, the instant suit is subject to the 2025 DRA, as Plaintiff has not alleged conduct constituting a sexual harassment or sexual assault dispute.

C. The 2025 DRA is not procedurally and substantively unconscionable

Plaintiff argues the DRA is not enforceable because it is procedurally and substantively unconscionable. (Opp., p. 13.)

i. The 2025 DRA is minimally procedural unconscionable

The Court finds the 2025 DRA is minimally procedurally unconscionable. Procedural unconscionability "pertains to the making of the agreement." (Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 795.) Procedural unconscionability "focuses on two factors: 'oppression' and 'surprise.' 'Oppression' arises from an inequality of bargaining power which results in no real negotiation and 'an absence of meaningful choice.' 'Surprise' involves the extent to which the supposedly agreed-upon terms of the bargain are hidden in the prolix printed form drafted by the party seeking to enforce the disputed terms." (Zullo v. Superior Court (2011) 197 Cal.App.4th 477, 484.)

Plaintiff argues the 2025 DRA is procedurally unconscionable because the terms are adhesive and Plaintiff either had to forfeit her employment or accept the 2025 DRA terms. (Opp., p. 14.) Further, Plaintiff argues there was no opportunity to sign the agreement or opt-out, and Plaintiff has no meaningful opportunity to negotiate the terms. (Opp., p. 14.) A contract of adhesion typically denotes a standardized contract imposed and drafted by the party of superior bargaining strength which relegates to the subscribing party only the opportunity to adhere to the contract or reject it. (Armendariz v.

Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 113.) The adhesive nature of a contract is one factor that the courts may consider in determining the degree of procedural unconscionability. (Carmona v. Lincoln Millennium Car Wash, Inc. (2014) 226 Cal.App.4th 74, 84 fn.4.) However, an arbitration agreement offered on a "take it or leave it basis" does not render the agreement unenforceable. (See L agatree v. Luce, Forward Hamilton & Scripps (1999) 74 Cal.App.4th 1105, 1127.)

Here, the 2025 DRA is minimally procedurally unconscionable. The 2025 DRA is adhesive in nature because Plaintiff did not have a meaningful choice to alter the terms and could only either accept or forego employment. Further, the terms were not presented to Plaintiff directly for her review. Plaintiff was informed via email that the DRA had been amended and was instructed to review them. (Fischbeck Decl., P.P. 43-48.) Plaintiff then agreed to the updated terms if she did not quit her job within 5 days. (Fischbeck Decl., P.P. 50.)

Thus, Plaintiff was not given an opportunity to affirmatively state her consent to the updated 2025 DRA. The 2025 DRA was adhesive in nature, because Plaintiff did not have a meaningful choice to alter the agreement's terms and could only either accept the terms and continue employment, or reject the terms and forego employment. However, this alone presents only minimal procedural unconscionability.

ii. The 2025 DRA is minimally substantively unconscionable

An agreement is substantively unconscionable if it imposes terms that are "overly harsh," "unduly oppressive," "unreasonably favorable," or "so one-sided as to 'shock the conscience.'" (Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 910-911 (Sanchez).) "All of these formulations point to the central idea that unconscionability doctrine is concerned not with 'a simple old-fashioned bad bargain' [citation], but with terms that are 'unreasonably favorable to the more powerful party.' [Citation.]" (Id. at p. 911.) "These include 'terms that impair the integrity of the bargaining process or otherwise contravene the public interest or public policy; terms (usually of an adhesion or boilerplate nature) that attempt to alter in an impermissible manner fundamental duties otherwise imposed by the law, fine-print terms, or provisions that seek to negate the reasonable expectations of the non-drafting party, or unreasonably and unexpectedly harsh terms having to do with price or other central aspects of the transaction.' " (Id. at p. 911.)

Plaintiff argues the DRA is substantively unconscionable because it (1) has an unlimited scope and an infinite duration, (2) has limited discovery, and (3) does not allow either party to vacate or modify the arbitrator's award. (Opp., pp. 14-15.)

First, Plaintiff contends the DRA states "Covered Disputes" "include, but are not limited to...," making the scope of the DRA applicable to any legal claim between the parties. (Opp., p. 14.) Plaintiff further contends the DRA states it is "intended to apply to the resolution of past, present, and future Covered Disputes." (Opp., p. 14.) The Court disagrees with Plaintiff's reading of the terms. The 2025 DRA itself defines "Covered Disputes" as "any legal disputes arising out of or related to your application for employment with Nordstrom, your employment with Nordstrom, or the termination of your employment with Nordstrom." (Fischbeck Decl., Exh.

P, p. 3.) Further, the 2025 DRA lists a number of disputes it does not cover, including disputes that may not be subject to an arbitration agreement as expressly provided by federal statute, claims for workers' compensation, claims for employee benefits, and sexual harassment and sexual assault disputes. (Fischbeck Decl., Exh. P, pp. 3-4.) Thus, the 2025 DRA is not unlimited in scope, as it clearly limits the types of disputes it may be applicable to. Additionally, because the 2025 DRA is limited to legal disputes arising out of or relating to Plaintiff's employment, it is thus limited in duration.

An arbitration agreement is not indefinite in duration where claims are limited to employment-related disputes because the relevant statute of limitations for each potential claim would naturally limit the time period a claim could be brought. (Cocom v. ABM Aviation, Inc. (2026) --- F.4th---, 2026 WL 1793637, at p. 7.) Here, the employment disputes that are covered under the 2025 DRA terms are thereby limited by both the employment terminating and the applicable statutes of limitations. Thus, the 2025 DRA is not indefinite in nature.

Second, the Court finds Plaintiff's argument that the 2025 DRA limits discovery unpersuasive. The Court finds the discovery provisions are not substantively unconscionable, as the 2025 DRA gives each party a right to conduct certain discovery and permits further discovery if the arbitrator determines it is appropriate. (Fischbeck Decl., Exh. P, p. 5.) These terms are not unreasonably favorable or so one-sided as to shock the conscience. Both parties have the opportunity to call two individual fact witnesses and any expert witness designated by another party, and the arbitrator has the exclusive right to entertain requests for additional discovery. (Fischbeck Decl., Exh. P., p. 5.) Because the parties have equal opportunity to discovery, discovery is not limited.

Finally, the Court finds the 2025 DRA minimally substantively unconscionable because it does not allow either party to vacate or modify the arbitrator's award. The 2025 DRA states "[a] court of competent jurisdiction shall have the authority to enter a judgment upon the arbitrator's award." (Fischbeck Decl., Exh. P., p. 6.) Defendants argue the 2025 DRA allows for vacatur or modification under 9 U.S.C. Sec. 9, which states if parties have agreed that a judgment of the court shall be entered upon the arbitrator's award, "then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected." (9 U.S.C.

Sec. 9.) However, this does not definitively state that the arbitrator's award in the instant suit may be vacated or modified by either party. Defendant's reliance on 9 U.S.C. Sec. 9 is inapposite. Section 9 states a court must grant an order confirming the award unless the award is vacated, modified, or corrected. This suggests an arbitrator's award can be vacated, modified, or corrected. However, the 2025 DRA itself does not state that the award can be vacated, modified, or corrected. Therefore, the parties are not allowed to vacate or modify the award under the 2025 DRA.

Section 9 does not apply here, because the parties cannot vacate or modify the arbitrator's award under the 2025 DRA. Simply because there is an opportunity to vacate or modify under Section 9 does not mean the parties here may vacate or modify the arbitrator's award. No such language is present in the 2025 DRA. The 2025 DRA is thus minimally substantively unconscionable because it does not allow either party to vacate or modify the arbitrator's award.

Accordingly, the Court finds the 2025 DRA is not unconscionable, as there is a minimal amount of procedural unconscionability, and a minimal amount of substantive unconscionability.

CONCLUSION

The motion to compel arbitration is GRANTED. A Status Conference re: Arbitration is scheduled for ________ at 8:30 a.m. in Department 48 at Stanley Mosk Courthouse. Five court days before, the parties are to file a joint report stating the name of their retained arbitrator and the status of arbitration. Clerk to give notice.

Dated this 23rd day of July 2026 | | | Hon. Thomas D. Long Judge of the Superior Court | | Home -->)" -->