SCOTT TURNER v. INTER-CON SECURITY SYSTEM, INC., et al.

Although Plaintiff’s uniform was always in compliance with Defendant’s policies, Plaintiff alleges his supervisor would repeatedly say words to effect of “my ----, you did to get some Dickies [many guards’ preferred clothing brand]? or “my ----, those pants don’t look right.” Eventually, Plaintiff gave up trying to explain himself and tried to ignore the racial slurs and harassment. Plaintiff further alleges that on June 24, 2024, an incident occurred between Plaintiff and Defendant Inter- Con’s captains at LACMTA?s Norwalk platform.

Plaintiff alleges he was surrounded by three captains over an allegation that he was wearing pants that were not in compliance with Defendants’ uniform policy. During the confrontation, Plaintiff alleges he fell to the platform and Defendants’ three Captains stood over Plaintiff while he lay on the platform, mocked him, recorded video of him, but did not provide any aid. On February 26, 2026, Defendant Inter-Con filed this Motion to Compel Arbitration. On May 6, 2026, Plaintiff filed an Opposition.

On May 12, 2026, Defendant filed a Reply.

Legal Standard

On a motion to compel arbitration, the moving party must prove by a preponderance of evidence the existence of the arbitration agreement and that the dispute is covered by the agreement. The burden then shifts to the resisting party to prove by a preponderance of evidence a ground for denial (e.g., fraud, unconscionability, etc.). (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413-414; Hotels Nevada v. L.A. Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 758.) “Thus, under both the FAA and California law, “arbitration agreements are valid, irrevocable, and

enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”? (Higgins v. Superior Court, supra, 140 Cal.App.4th at p. 1247, citing Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 98.)

Discussion

Defendant argues that on or about September 9, 2023, Plaintiff voluntarily entered into a valid and enforceable Mutual Agreement to Arbitrate Claims (“Agreement”) with Inter-Con. Plaintiff does not dispute there was an arbitration agreement, but argues that the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA) renders the Arbitration Agreement unenforceable. The EFAA provides that at the election of a person alleging conduct constituting a “sexual assault dispute’ or “sexual harassment dispute,” no pre-dispute arbitration agreement shall be valid or enforceable with respect to a case relating to such dispute. (9 U.S.C. §§ 401?402.)

The 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. § 401(4).) “Under the EFAA, when a plaintiff's lawsuit contains at least one claim that fits within the scope of the act, the arbitration agreement is unenforceable as to all claims asserted in the lawsuit.”¿(Liu, supra, 105 Cal.App.5th at 800.)¿¿¿ Here,¿the EFAA applies to Plaintiff’s FAC. First, harassment based on Plaintiff’s sexual orientation is covered under EFAA. (9 U.S.C. § 401(4); Gov.

Code § 12940(j)(1) [includes sexual orientation as a protected class against harassment.]) Second, Plaintiff unequivocally has a sexual harassment dispute because he alleges that he was subjected to harassment based on his sexual orientation. Finally,¿pursuant to¿ Liu, Plaintiff’s entire case is excluded from arbitration under EFAA. (Liu, supra, ¿105 Cal.App.5th at 800.) Taken together, EFAA disallows this Court to compel arbitration. Defendant contends that Plaintiff did not plead a sexual harassment cause of action, nor allege facts meeting FEHA?s definition of sexual harassment.

Defendant argues that Plaintiff has not pleaded any allegations whatsoever related to sex/sexual orientation-based comments, conduct, or harassment, other that the sole allegation of the use of the gay slur “fag.” The elements of a cause of action for harassment under FEHA are: 1) plaintiff belongs to a protected group; (2) plaintiff was subject to harassment; (3) the harassment complained of was based on the plaintiff’s membership in the protected group; (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. (Jones v.

Dep’t of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1377; CACI No. 2521A.) “Harassment includes “verbal harassment’ such as “epithets,

derogatory comments or slurs on a basis enumerated in FEHA. [citation.]?? (Wawrzenski v. United Airlines, Inc. (2024) 106 Cal.App.5th 663, 692.) Both federal and California law recognize that harassment based on sexual orientation’including derogatory comments and slurs’constitutes actionable sexual harassment. (See, e.g., 2 Cal. Code Regs. § 11019(b)(2) [defining harassment to include?[v]erbal harassment, e.g., epithets, derogatory comments or slurs’ on a protected basis].) Here, Plaintiff alleges repeated use of derogatory slurs such as “fag,”?conduct that falls squarely within regulatory definitions of harassment.

Defendant also argues there is no allegation regarding the frequency, or who allegedly made such comments, and whether they interfered with Plaintiff’s work performance. Whether harassment exists based upon a hostile work environment is determined by considering all the circumstances, which may include frequency, severity, and interference with one’s job. (Miller v. Dep't of Corrections, (2005) 36 Cal.4th 446, 462.) “In determining what constitutes “sufficiently pervasive’ harassment, the courts have held that acts of harassment cannot be occasional, isolated, sporadic, or trivial, rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.” (Fisher v.

San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 610.) The inquiry is whether “the social environment of the workplace [has become] intolerable.” (Roby v. McKesson Corp. (2006) 47 Cal.4th 686, 706.) “A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.” (Gov.

Code, § 12923, subd. (b).) Here, Plaintiff alleges Defendant Inter-Con’s top management would regularly refer to Plaintiff using the gay slur “fag.” Plaintiff alleges he was frequently harassed and criticized for his uniform because he preferred stretched tactical pants, even though they were in compliance with the uniform policy. Plaintiff alleges his supervisor would repeatedly say words to effect of “those pants don’t look right.” Plaintiff further alleges that on one occasion, he was surrounded by three captains over an allegation that he was wearing pants that were not in compliance with Defendants’ uniform policy, and during the confrontation, Plaintiff fell to the platform and Defendants’ three Captains stood over Plaintiff while he lay on the platform, mocked him, recorded a video of him, but did not provide any aid.

Plaintiff alleges that he expressed concerns about sexual harassment and asked to be transferred. These allegations sufficiently state a claim for harassment based on sexual orientation as they show the harassing conduct occurred repeatedly and created an intimidating or offensive working environment. As a result, Defendant’s motion to compel arbitration is DENIED.

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