Opinion
10 Civ. 8828 (RMB)
04-01-2011
PEDRO PONTIER, Plaintiff, v. U.H.O. MANAGEMENT CORP. and THERESA JONES, Defendants.
DECISION & ORDER
I. Background
Before the Court is a motion ("Motion"), filed January 13, 2011 by U.H.O. Management Corp. ("UHO"), the owner and operator of several buildings in New York City, and UHO's maintenance director, Theresa Jones ("Jones," and collectively, "Defendants"), to compel arbitration pursuant to the Federal Arbitration Act ("FAA"), 9 U.S.C §§ 3-4, or, alternatively, to dismiss the complaint ("Complaint"), filed November 22, 2010 in this Court by Pedro Pontier ("Plaintiff") against Defendants. (See Notice of Defs.' Mot. to Dismiss the Compl., dated Jan. 13, 2011 ("Defs. Mot.").) The Complaint sets forth claims pursuant to 42 U.S.C. §§ 1981, 2000e et seq. ("Title VII"), and alleges, among other things, that "Defendants intentionally discriminated against Plaintiff on the basis of his race, national origin and ethnicity." (Compl. ¶¶ 1, 102.)
The Complaint also sets forth claims pursuant to New York State Human Rights Law §§ 290 et seq. and New York City Human Rights Law §§ 8-107 et seq. (see Compl. ¶ 1), all of which Plaintiff withdrew at a conference before the Court on January 10, 2011 (see Tr. of Proceedings, dated Jan. 10, 2011, at 2:23-3:5).
Plaintiff's employment as a building superintendent for Defendants, from 1998 to September 14, 2007, was subject to a collective bargaining agreement, dated April 21, 2003 ("CBA"), between Plaintiff's union, the Service Employees International Union, Local 32BJ ("SEIU"), and the Realty Advisory Board on Labor Relations Inc. ("RAB"). (See CBA, Apr. 21, 2003, attached as Ex. J to Aff. of Robert A. Sparer in Supp. of Defs.' Mot. to Dismiss the Compl., dated Jan. 13, 2011 ("Sparer Decl.").) The CBA provides, among other things, that "[a] [c]ontract [a]rbitrator shall have the power to decide all differences arising between the parties to [the CBA] as to interpretation, application, or performance of any part of [the CBA]" (CBA at 14 ("Arbitration Clause")), and provides, specifically, that "claims made pursuant to Title VII[, 42 U.S.C. §§ 1981, 2000e et seq.,] . . . shall be subject" to the Arbitration Clause (CBA at 84-85). The CBA further states that "[u]pon the expiration date of [the CBA on April 20, 2006], the same shall continue in full force and effect for an extended period until a successor agreement has been executed." (CBA at 92.)
The RAB is a multiemployer bargaining association for the New York City real estate industry which entered into the CBA with the SEIU on behalf of "various owners of apartment buildings and other employees," including UHO. (CBA at 1.)
On October 23, 2007, the SEIU initiated an arbitration proceeding ("Arbitration Proceeding") on Plaintiff's behalf against Defendants and the RAB pursuant to the Arbitration Clause alleging, among other things, that Defendants "unjust[ly] discharged" Plaintiff on September 14, 2007. (Sparer Decl. Ex. K at 2.) The SEIU did not specifically allege that Defendants discriminated against Plaintiff. (See Sparer Decl. Ex. K at 2.) After conducting a hearing on January 23, 2008 at which the SEIU, Defendants, and the RAB appeared—but Plaintiff did not appear—the arbitrator issued an Opinion and Award, dated February 5, 2008, upholding Plaintiff's discharge because the "evidence establishe[d] that [Plaintiff] repeatedly failed to properly perform his duties as superintendent." (Sparer Decl. Ex. K at 6.)
In their Motion, Defendants argue, among other things, that: (1) "Plaintiff's claims are subject to mandatory arbitration pursuant to the [CBA]"; and (2) "Plaintiff has had a full and fair opportunity to argue his claims of discrimination" in the Arbitration Proceeding, and "the Complaint should be dismissed on the basis of res judicata." (Defs.' Mem. of Law in Supp. of their Mot. to Dismiss the Compl., dated Jan. 13, 2011 ("Defs. Mem."), at 2-3.)
On February 22, 2011, Plaintiff filed an opposition arguing, among other things, that: (1) Plaintiff is not required to arbitrate his claims because "the fact that the [SEIU] did not arbitrate [Plaintiff's discrimination] claims renders [the CBA's arbitration] provisions void," and "Plaintiff's . . . claims accrued post-expiration of the CBA"; and (2) the doctrine of res judicata is inapplicable because Plaintiff was not given any opportunity to air his discrimination claims at the Arbitration Proceeding. (Mem. of Law in Opp'n to Defs.' Mot. to Dismiss the Compl. & Compel Arbitration, dated Feb. 22, 2011 ("Pl. Opp'n"), at 14, 20.)
On March 9, 2011, Defendants filed a reply ("Reply"). (See Defs.' Reply Mem. of Law in Further Supp. of their Mot. to Dismiss the Compl., dated Mar. 9, 2011 ("Reply").) In the Reply, Defendants included an agreement between the SEIU and the RAB supplemental to the CBA, dated February 17, 2010 ("Supplemental Agreement"), which states, among other things, that "[w]henever it is claimed that an employer has violated [Title VII] . . . , the matter shall be submitted to mediation," and that "arbitration appl[ies] to those circumstances in which the [SEIU] has declined to take an individual employee's discrimination claim . . . to arbitration and the employee is desirous of litigating the claim." (Supplemental Agreement, Feb. 17, 2010, attached as Ex. A to Aff. in Further Supp. of Defs.' Mot., dated Mar. 3, 2011, at 3); (see Reply at 6).
The parties waived oral argument. (See Tr. of Proceedings, dated Jan. 10, 2011.)
II. Legal Standard
"A collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate statutory employment discrimination claims is enforceable as a matter of law unless Congress precluded waiver of judicial remedies for the statutory rights at issue." Duraku v. Tishman Speyer Props., Inc., 714 F. Supp. 2d 470, 473 (S.D.N.Y. 2010). "[I]t is difficult to overstate the strong federal policy in favor of arbitration, and it is a policy [the Second Circuit has] often emphatically applied." Arciniaga v. Gen. Motors Corp., 460 F.3d 231, 234 (2d Cir. 2006) (internal quotation marks omitted).
On motions to compel arbitration, courts "consider[], as [they] must, the extrinsic evidence submitted by the parties." Sutherland v. Ernst & Young LLP, -- F. Supp. 2d --, 2011 WL 838900, at *1 n.1 (S.D.N.Y. 2011); see BS Sun Shipping Monrovia v. Citgo Petroleum Corp., No. 06 Civ. 839, 2006 WL 2265041, at *3 n.6 (S.D.N.Y. Aug. 8, 2006) (citing Sphere Drake Ins. Ltd. v. Clarendon Nat'l Ins. Co., 263 F.3d 26, 32-33 (2d Cir. 2001)).
III. Analysis
(1) Arbitration
Defendants argue, among other things, that "the language of the [CBA] . . . sufficiently establishes a clear and unmistakable waiver of Plaintiff's ability to proceed in this forum, requiring him to utilize the contractual and arbitration provisions." (Defs. Mem. at 10.) Plaintiff counters that granting Defendants' Motion "would operate as a substantive waiver of all of Plaintiff's claims given that the [SEIU] was never contractually constrained to arbitrate those claims and cannot be compelled to do so now." (Pl. Opp'n at 16.) Plaintiff further argues that the CBA "expired in April[] 2006, and can no longer bind" him. (Pl. Opp'n at 2.)
The CBA and the Supplemental Agreement "clearly and unmistakably require[]" the resolution of Title VII claims through arbitration. Garcia v. Newmark Knight Frank, No. 09 Civ. 4599, slip op. at 8-9 (S.D.N.Y. Aug. 2, 2010); (see CBA at 84-85 ("All [Title VII] claims shall be subject to the grievance and arbitration procedure . . . as sole and exclusive remedy for violations."); Supplemental Agreement at 3-4); see also Duraku, 714 F. Supp. 2d at 474. Furthermore, it is well-established that "Congress did not intend for [Plaintiff's] federal discrimination and retaliation claims to be nonarbitrable." Duraku, 714 F. Supp. 2d at 474; see 14 Penn Plaza LLC v. Pyett, 129 S. Ct. 1456, 1469 (2009) ("This Court has been quite specific in holding that arbitration agreements can be enforced under the FAA without contravening the policies of congressional enactments giving employees specific protection against discrimination prohibited by federal law."); Desiderio v. Nat'l Ass'n of Sec. Dealers, 191 F.3d 198, 204-05 (2d Cir. 1999) (Congress has "encourag[ed] arbitration of Title VII claims"); Rodriguez v. Four Seasons Hotels, Ltd., No. 09 Civ. 2864, 2009 WL 2001328, at *3 (S.D.N.Y. July 10, 2009).
The Supplemental Agreement allows union members to arbitrate Title VII claims even when the SEIU "has declined to take an individual employee's employment discrimination claims . . . to arbitration and the employee is desirous of litigating the claim." (Supplemental Agreement at 3); see Garcia, No. 09 Civ. 4599, at 8-9. That the Supplemental Agreement does not expressly state that it applies "retroactively" or to employees who, like Plaintiff, have been discharged before filing suit "does not relieve Plaintiff of his obligation to abide by the mediation and arbitration" provisions. Duraku, 714 F. Supp. 2d at 474.
The issue of whether or not the CBA "expired" as Plaintiff asserts, voiding the obligation to arbitrate, involves interpretation of the CBA and the parties' obligations under the CBA, and is itself arbitrable. See Paramedics Electromedicina Comercial Ltda. v. GE Med. Sys. Info. Technologies, Inc., No. 02 Civ. 9369, 2003 WL 23641529, at *7 n.3 (S.D.N.Y. June 4, 2003); see Abram Landau Real Estate v. Bevona, 123 F.3d 69, 73 (2d Cir. 1997) ("[W]here the arbitration clause does not expressly exclude disputes over the termination provision disputes over these matters should be submitted to arbitration."); 4200 Ave. K LLC v. Fishman, 164 F. Supp. 2d 339, 342 (S.D.N.Y. 2001).
(2) Res Judicata
Matters reaching the merits of the dispute—including Defendants' res judicata argument raised in its Fed. R. Civ. P. 12(b)(6) motion—are to be resolved by the arbitrator. In re Application of N. J. Boom & Erectors, Inc., No. 00 Civ. 7812, 2001 357087, at *1 (S.D.N.Y. Apr. 9, 2001); see Nat'l Union Fire Ins. Co. of Pittsburgh v. Belco Petroleum Corp., 88 F.3d 129, 133 (2d Cir. 1996) ("[T]he preclusive effect of the prior arbitration award [is] to be decided in [a] later arbitration."); Transit Mix Concrete Corp. v. Local Union No. 282, 809 F.2d 963, 969 (2d Cir. 1987)
IV. Conclusion and Order
For the foregoing reasons, Defendants' motion [#13] to compel arbitration is granted. If Plaintiff wishes to pursue his claims, he shall commence mediation and/or arbitration within thirty days of this Order. To promote the expeditious resolution of this dispute, this action shall be stayed pending arbitration by Plaintiff and Defendants of Plaintiff's discrimination claims. Garcia, No. 09 Civ. 4599, at 11. Dated: New York, New York
The Second Circuit has urged courts to "be mindful of th[e] liberal federal policy favoring arbitration agreements when deciding whether to dismiss an action or instead grant a stay" and consider that "[u]nnecessary delay of the arbitral process through appellate review [following dismissal] is disfavored." Salim Oleochemicals v. M/V Shropshire, 278 F.3d 90, 93 (2d Cir. 2002) (internal citation and quotation marks omitted).
April 1, 2011
/s/ _________
RICHARD M. BERMAN, U.S.D.J.