P. KEVIN CASTEL, District Judge.
Plaintiff Besnik Ukshini, proceeding pro se, moves to vacate, modify, or correct an arbitration award that found that his claims of employment discrimination against defendant Comity Realty Corporation ("Comity") were not proven, but found in his favor on a retaliation claim and awarded him $25,000 as to that claim. Comity cross-moves to confirm the award and for sanctions.
Essential to an understanding of the present motions is this Court's prior ruling granting a motion to compel arbitration. (Mem. and Order of Apr. 29, 2016 (Dkt. 21)). In that ruling the Court reviewed: (a) Ukshini's claims that alleged employment discrimination based on race, religion, and national origin under Title VII of the Civil Rights Act of 1964, ("Title VII"), 42 U.S.C. § 2000e et seq., (b) the terms of the Collective Bargaining Agreement ("CBA") and an "Agreement and Protocol" between SEIU Local 32BJ, the union of which Ukshini is a member, and the Realty Advisory Board on Labor Relations, Inc. ("RAB"), the group of which Comity is a member, and (c) the governing law concerning the arbitrability of Ukshini's claims. (
The arbitration was conducted on June 5, 2017 before arbitrator Bonnie Siber Weinstock, in accordance with the National Rules for Employment Disputes of the American Arbitration Association. (Agreement and Protocol (Hogan Decl. Ex. 3) at 5(II)(B)). A certified Albanian language interpreter was provided by Comity for Ukshini's use at the hearing. (Award (Hogan Decl. Ex. 1) at 2). The arbitrator heard opening arguments from the parties. (
As damages, Ukshini claimed lost income from 2012 to 2016 of over $200,000, including $45,000 in tips. (Dkt. 34-1). He also sought to recover for credit card debts, including interest, his daughter's unpaid medical debts, "teeth compensation," emotional distress, and punitive damages. The entire damage claim totaled $723,777.09.
In a 27-page written award, the arbitrator found that Ukshini had not proven his claims of discrimination based on race, national origin, and religion. (Award at 27). The arbitrator found that Ukshini had "engaged in serious misconduct by harassing female tenants and neglecting his duties" and that "there was cause for his termination." (
In support of his motion to vacate, Ukshini, asserts that because he did not sign the CBA and related agreements between SEIU Local 32BJ and RAB, he is not bound by the agreement to arbitrate. He also complains that the arbitration was held in the office of Comity's lawyers, witnesses for Comity were present during the entire hearing, Comity only called two witnesses, he consented to the selection of the particular arbitrator reluctantly and under pressure, he "noticed some kind of respect and friendship between the Arbitrator [and Comity's lawyer]," (Dkt. 38 at 3), the award "is a whole of deviations and intentionally wrong interpretations of facts, proofs, and statements," (
For reasons to be explained, the motion to vacate will be denied, the motion to confirm will be granted, and the motion for sanctions will be denied. DISCUSSION
"Arbitration awards are subject to very limited review in order to avoid undermining the twin goals of arbitration, namely, settling disputes efficiently and avoiding long and expensive litigation."
The principal ground asserted by Ukshini in his petition to vacate is that he did not personally sign an agreement with Comity that contained an arbitration provision and, therefore, he is not bound to present his claim in arbitration. (Dkt. 34 at 3; Dkt. 38 at 1 ("I SHOULD NOT BE BIDDEN TO RESPECT ANY AGREEMENT WHICH I DID NOT PERSONALLY SIGN[.]" (emphasis in original)). He acknowledged that he was a member of SEIU Local 32BJ and Comity was a member of RAB. (Dkt. 34 at 3; Dkt. 38 at 1). He further acknowledged that his position as doorman was covered by the CBA between the union and RAB. (Dkt. 34 at 2; Dkt. 38 at 1). He does not dispute that the union and RAB entered into an "Agreement and Protocol" governing claims by individual members of discrimination. (Dkt. 34 at 2-3; Dkt. 38 at 1). These facts, without more, are sufficient to hold Ukshini to the arbitration provision agreed to by his union governing his employment by a RAB member. This Court previously held that Ukshini is bound by the arbitration provision in the CBA (Mem. and Order of Apr. 29, 2016), and that holding is the law of the case,
The Federal Arbitration Act (the "Act") enumerates the grounds for vacating or modifying an arbitration award. 9 U.S.C. §§ 10-11. Given the broad sweep of the submissions of this unrepresented plaintiff, each will be discussed.
1. The Act provides for vacating the award "where the award was procured by corruption, fraud, or undue means" or "there was evident partiality or corruption in the arbitrators."
2. An arbitration award may be vacated "where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced." 9 U.S.C. § 10(a)(3). Arbitral misconduct requires a violation of "fundamental fairness,"
3. An award may also be vacated "where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made." 9 U.S.C. § 10(a)(4). The arbitration proceeded on federal and state discrimination and retaliation claims relating to Ukshini's employment. The arbitrator declined to consider claims regarding seniority because it would have been subject to a different arbitration regime. The arbitrator did not exceed her powers in making the award.
4. Section 11 of the Act permits a court to modify or correct an award, in limited circumstances, including "[w]here there was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing, or property referred to in the award." An "evident material miscalculation of figures" is simply that—a miscalculation, not the rejection of one party's damage theory.
5. The "manifest disregard of the law" doctrine does not justify vacating or modifying the award. "[T]o modify or vacate an award on this ground, a court must find both that (1) the arbitrators knew of a governing legal principle yet refused to apply it or ignored it altogether, and (2) the law ignored by the arbitrators was well defined, explicit, and clearly applicable to the case."
The Court concludes there is no basis to vacate, modify, or correct the award. Because there is no such basis, Comity is entitled to have the award confirmed. 9 U.S.C. § 9 ("[A]ny 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 as prescribed in sections 10 and 11 of this title.")
Comity also seeks sanctions against Ukshini for what it views as a frivolous attempt to set aside the arbitration award. There is no indication that Comity followed the procedure in Rule 11(c)(2), Fed. R. Civ. P., before making the motion and, in any event, given the special solicitude to be afforded a self-represented party, the Court cannot conclude that Ukshini's submissions violated the representations set forth in Rule 11(b). CONCLUSION
Having considered the arguments and submissions of plaintiff in their entirety, plaintiff's motion to vacate the award (Dkt. 34) is DENIED. Defendant's cross-motion to confirm the award (Dkt. 35) is GRANTED and its motion for sanctions (Dkt. 35) is DENIED. The Clerk is directed to terminate the motions (Dkts. 34 &35), enter judgment for defendant and close the case. Counsel for defendant shall furnish plaintiff with a copy of all unreported decisions cited herein within seven days.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal.
SO ORDERED.