A federal judge in Manhattan has weighed in on a pregnancy and breast pumping-based putative class action discrimination lawsuit launched against Avon, turning back a defendant's motion to compel one named plaintiff into arbitration while dismissing certain claims by individual plaintiffs.

The lawsuit will continue and potential class certification has not yet been decided, but U.S. District Judge Vernon Broderick of the Southern District of New York's early-stage decision has pared down the suit—getting rid of one of three named plaintiff's multiple claims entirely and tossing out certain federal Title VII and New York State Human Rights Law claims made by one or both the remaining individual defendants.

The lawsuit, filed in November 2018, names two Avon-related defendants: Avon Products and New Avon, which was created in 2016 when Avon Products spun off its North American business. The defendants have different counsel, and New Avon is controlled by private equity firm Cerberus Capital Management L.P., according to Broderick.

The three individual plaintiffs and the putative classes, including one comprising nursing female employees at the defendant companies, are represented by the Wigdor law firm in Manhattan.

Wigdor has claimed that the lawsuit represents the "first proposed class action filed on behalf of a group of female employees discriminated against because they need to pump breast milk during work hours."

In an emailed statement, Jeanne M. Christensen, a Wigdor partner who is helping to represent the individual plaintiffs and the putative classes, noted that the firm was "extremely pleased" with parts of Broderick's opinion.

Most especially, she touted the arbitration ruling regarding individual plaintiff Caroline Ruiz, saying that "our client's claims, individually and on behalf of a proposed class of female employees at New Avon LLC, will not be silenced by forced arbitration," and adding that "we are extremely pleased that Ms. Ruiz can proceed publicly with her pregnancy discrimination claims against New Avon, LLC."

Felice B. Ekelman, a Jackson Lewis principal in Manhattan, represents New Avon in the action. Reached on Thursday, she declined to comment.

Keisha-Ann G. Gray, a Proskauer Rose partner in Manhattan, is counsel to Avon Products. She could not be immediately reached Thursday.

In his opinion issued over last weekend, on Sept. 22, Broderick found that New Avon's motion to compel Ruiz into arbitration with her claims against it could not stand because after Ruiz had first signed an arbitration agreement with New Avon in November 2017, she subsequently signed an employment agreement with the company in December 2017 that said the parties "submit to the sole exclusive jurisdiction [for actions or controversies] of the United States District Court for New York or the Courts of the State of New York."

Ruiz had first signed a different employment agreement with New Avon on Nov. 14, 2017, when she was about to start her job as Global Head of North America Indirect Procurement, Broderick said. It included the same jurisdiction language as the later December 2017 employment agreement.

Then on Nov. 27, 2017, she signed an employment arbitration agreement with New Avon. She also asked, at some point, to delay the start of her job, Broderick wrote, and the request was granted.

Before she was to begin the position in January 2018, she asked New Avon whether "we should sign a new contract with a new starting date? I am not sure," and, according to Broderick, who used a complaint for the basis of alleged facts, New Avon responded that executing a new employment agreement would be a "good idea."

The second employment agreement used the same "sole exclusive jurisdiction [for actions or controversies] of the United States District Court for New York or the Courts of the State of New York" language as the original employment agreement, and because it was signed after the arbitration agreement, it "superseded" the arbitration agreement, Broderick ruled.

"Ruiz maintains that 'the latest-executed agreement containing the forum selection clause controls,'" Broderick wrote.

And "without citing to any legal authority, New Avon responds that because the only material change between the November Employment Agreement and the December Employment Agreement is Ruiz's start date, which was modified at Ruiz's request, the earlier November Employment Agreement 'was the operative [employment] agreement.'"

"However," wrote the judge, "New Avon's position runs contrary to the 'well[-]established' principle under New York law that 'a subsequent contract regarding the same matter will supersede the prior contract,'" quoting Barnum v. Millbrook Care, 850 F. Supp. 1227, 1236 (S.D.N.Y.).

On the question of "whether the forum selection clause contained in the December Employment Agreement supersedes the earlier-signed Arbitration Agreement," Broderick ruled that "because the December Employment Agreement contains a mandatory forum selection clause establishing that all disputes relating to Ruiz's employment or the termination thereof must be submitted to the 'sole exclusive jurisdiction' of this Court or New York state courts, I find that it supersedes the parties' earlier, conflicting agreement to arbitrate."

The two Avon defendants' dismissal arguments attacked certain claims by a certain individual plaintiff or plaintiffs—who have lodged counts including Title VII claims, state Human Rights Law claims, and New York City Human Rights Law claims— and the arguments included failure to state a claim, failure to exhaust administrative remedies and statute of limitations arguments.

In the end, plaintiff Ruiz's Title VII, state Human Rights Law and city Human Rights Law claims against New Avon go on, and plaintiff Olivera Krstanoska's state Human Rights Law claims against Avon Products alleging discrimination in relation to events occurring on or after Oct. 3, 2015 or alleging a hostile work environment, continue, Broderick wrote.

According to the originally filed complaint, Ruiz informed New Avon management of medical, pregnancy-related problems, but rather than being properly accommodated, she was soon called into a "sham" meeting at which her performance was—for the first time—criticized sharply. After only being at the company for less than four weeks, she was fired, even as her doctor was ordering her to get bed rest to protect her unborn child, and Avon allegedly was making that difficult for her.

Krstanoska in the original complaint claimed that after she disclosed she was pregnant while working at Avon, she was not allowed to avoid working with chemicals that were known to be potentially harmful to her fetus. Instead she was yelled at and harassed, and told she must use the dangerous chemical HC Agar, she alleged. Later, she was allegedly threatened and intimidated by a supervisor after returning from her maternity leave, and she was allegedly "marginalized" and felt penalized for breast feeding during work hours, which is protected by law.

Amended complaints have since been filed.