Labor & Employment Law Daily Wrap Up, ARBITRATION—E.D. Pa.: Employer maintained right to arbitrate, despite delaying demand longer than two years, (May 14, 2026)

By Jason Albright, J.D.

Though discovery requests were exchanged, discovery had not yet been produced.

Banfield Pet Hospital did not waive its right to compel arbitration of an employee’s Pennsylvania Human Relations Act disability discrimination claims, first asserted in November 2023, despite not moving to compel arbitration until February 2026, a federal district court found. The arbitration agreement between the parties was sufficiently definite, and although the employer participated in litigation for more than two years without mentioning arbitrability as an affirmative defense, fewer than four months elapsed between the lawsuit being served on the defendants and their formal motion to compel, no motions were filed during that time, and discovery had not yet been produced (Agnes v. Banfield Pet Hospital , No. 25-cv-6361 (E.D. Pa. May 6, 2026)).

Banfield Pet Hospital. Banfield Pet Hospital is a Delaware corporation, with a corporate headquarters in Washington state. The plaintiff began working there on November 2, 2015.

PHRC complaint and answer. On November 22, 2023, the employee filed a complaint with the Pennsylvania Human Relations Commission (PHRC) accusing the corporation and her supervisor of disability discrimination in violation of the Pennsylvania Human Relations Act (PHRA). The complaint was docketed by the PHRC on January 3, 2024, and the employer answered the complaint in “early 2024.”

Philadelphia Court of Common Pleas action. In addition, the employee brought suit in the Philadelphia Court of Common Pleas on September 23, 2025, alleging disability discrimination in violation of the PHRA. The lawsuit was served on October 10, 2025.

Removal and discovery. Subsequently, the defendants removed the action to federal district court on November 11, 2025, and filed an answer on November 17. The parties then collaborated on a joint discovery plan, which was submitted to the court on December 3, 2025. They attended a Rule 16 conference with a federal district court judge on December 16, 2025, and they propounded discovery requests on one another.

Motion to compel. The defendants then raised their intent to compel arbitration for the first time when they met and conferred with the employee on January 16, 2026. No filings before then had even referenced the possibility that she could be compelled to arbitrate her claims. Finally, on February 4, 2026, they formally moved to compel arbitration.

Arbitration agreement. Signed by the employee on October 19, 2015, the arbitration agreement, among other things, provided that, “Nothing in this Agreement prohibits you from filing a complaint with the EEOC or any other federal, state or local agency designated to investigate complaints of unlawful employment practices.”

Definiteness of agreement. Taking up the employer’s motion to compel, the court rejected the employee’s claim that the arbitration agreement was insufficiently definite. Among other things, she argued that, by permitting an employee to file claims with the EEOC or a comparable state agency, the agreement implied that arbitration was not an exclusive remedy. The court was unpersuaded.

The fact that an arbitration agreement allows a contracting party to separately pursue administrative remedies simply “does not create ambiguity about the agreement’s enforceability,” and indeed, the U.S. Supreme Court has held that arbitration mandates are entirely consistent with the availability of separate administrative remedies. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28 (1991). Accordingly, the court found the arbitration agreement sufficiently definite to be enforceable.

Waiver argument. Next, the employee argued that the defendants waived their right to compel arbitration by availing themselves of the judicial process. Specifically, she noted that they participated in litigation for more than two years, answered the complaint, took part in the Rule 16 conference, and provided a Rule 26(f) report, all while not mentioning arbitrability as a potential affirmative defense.

No waiver. The court was again unpersuaded, finding that, although the defendants could have made known their intention to compel arbitration sooner, the totality of the circumstances showed that they were “not so derelict as to waive their right to compel arbitration.” According to the court, this was chiefly because they “did not seek to gain an upper hand through the litigation process before turning to arbitration.”

Fewer than four months elapsed between the lawsuit being served on them and their formal motion to compel, no motions were filed during that time, and though discovery requests were exchanged, discovery had not yet been produced. Their “greatest procedural offense,” said the court, was not including arbitrability as an affirmative defense in their answer and not explaining their delay to the court, but given the full context of the case, that was insufficient to constitute waiver.

Enforceable against supervisor. Finally, the court found the arbitration agreement enforceable against the supervisor, even though she was not a party to it. Because the employee’s claims against the supervisor arose solely out the supervisor’s allegedly discriminatory conduct as an agent of the employer, the employee’s dispute with her also fell under the terms of the arbitration agreement.

The defendants’ motion to compel arbitration was accordingly granted.

The case is No. 25-cv-6361.

Judge: Younge, J.

Attorneys: Erica Domingo (Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins) for Alyssa Agnes. Sarah Renee Shaiman (Ogletree Deakins) for Banfield Pet Hospital and Michelle Garrity.

Companies: Banfield Pet Hospital

Cases: Arbitration Procedure DisabilityDiscrimination Discrimination PennsylvaniaNews