VALERIE CAPRONI, District Judge.
Petitioner Aferdita Collaku, a former employee of Respondent Temco Service Industries, Inc. ("Temco"), brought this petition in New York state court under Section 7511 of the New York Civil Practice Law and Rules, seeking to vacate an arbitrator's decision issued pursuant to a collective-bargaining agreement ("CBA"). Dkt. 5 ex. 2 (Verified Pet.). Temco removed the petition to this Court, asserting that although Petitioner's claim is styled as one arising under state law, it is actually a federal cause of action "over which this Court has jurisdiction under Section 301(a) of the Labor Management Relations Act (`LMRA')" and is thus removable to this Court pursuant to 28 U.S.C. §§ 1441 and 1446. Dkt. 5 (Am. Notice of Removal) at 2-3. Petitioner's motion to remand the case to New York Supreme Court, Dkts. 11-12, is DENIED.
Consistent with this Court's order, see Dkt. 10, the parties' briefing on the remand motion also addressed whether Respondent defaulted on this petition while the case was in state court and, if so, whether Respondent must formally move to vacate the default under Fed. R. Civ. P. 55(c) and 60(b) to further litigate this case. For the reasons that follow, the Court holds that Respondent did not default while in state court and that any motion to vacate is unnecessary.
Although the parties dispute the veracity of Petitioner's underlying grievances against Respondent, the procedural history of this case is generally undisputed.
Petitioner was employed by Respondent as a cleaner, supervisor, and foreperson between 2004 and 2014. Dkt. 5 ex. 2 (Verified Pet.) ¶ 11. In November 2014, Petitioner sued Respondent in New York Supreme Court alleging that Respondent had violated her rights under the New York City Human Rights Law ("NYCHRL") and the New York State Human Rights Law ("NYSHRL"). See Dkt. 5 ex. 5 (Summons & Compl.). Respondent moved to compel arbitration of Petitioner's claims, asserting (1) that Petitioner was subject to a CBA between a labor union representing Petitioner and a multi-employer bargaining group of which Respondent was a member, and (2) that Petitioner's NYCHRL and NYSHRL claims were subject to the mandatory-arbitration clause contained in the CBA. See App. A (State Court Mem. in Supp. of Mot. to Dismiss) at 2-3, 6-8.
Arbitration proceedings took place on two of Petitioner's NYCHRL claims only.
On April 6, 2018, Petitioner filed this action in New York Supreme Court, requesting that the arbitrator's decision be vacated under N.Y. C.P.L.R. section 7511(b)(1). Dkt. 5 ex. 2 (Verified Pet.). Petitioner's notice of the petition purported to set a deadline of April 30, 2018, for Respondent to respond, see id. ex. 1 (Notice of Pet.) at 1, but Respondent did not appear or file any responsive papers by that date, see Dkt. 5 (Am. Notice of Removal) ¶ 8; Dkt. 14 (Mem. in Opp. to Mot. to Remand) at 9. Instead, on May 6, 2018, Respondent filed a notice of removal. See Dkt. 1 (Notice of Removal). Respondent's amended removal notice contends that this Court has federal-question jurisdiction because Petitioner's Section 7511 claim challenges an arbitral award issued pursuant to an arbitration agreement contained in a CBA and is, therefore, completely preempted by Section 301 of the LMRA. See Dkt. 5 (Am. Notice of Removal) ¶¶ 4-7.
After an initial pre-trial conference, Petitioner filed this motion to remand, contending that Section 301 does not completely preempt her N.Y. C.P.L.R. section 7511(b)(1) petition and that this Court therefore lacks subject-matter jurisdiction. Dkt. 12 (Mem. in Supp. of Mot. to Remand). Petitioner does not contest the timeliness of the removal or Respondent's compliance with the procedures laid out in 28 U.S.C. §§ 1441 and 1446.
"The federal courts are under an independent obligation to examine their own jurisdiction," FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990), and must do so before reaching the merits, see Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-102 (1998). The Court therefore addresses first whether it has subject-matter jurisdiction over this petition and thus whether Respondent properly removed it from state court. It will then turn to whether Respondent defaulted in state court and, if so, whether Respondent must move to vacate that default in order to contest Collaku's petition in this Court.
Because Respondent removed this case from state court, it "bears the burden of proving that the case is properly in federal court." United Food & Commercial Workers Union, Local 919 v. CenterMark Props. Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994). The Court concludes that it has subject-matter jurisdiction over this petition under Section 301 of the LMRA and thus that Respondent properly removed the action from state court to this Court under 28 U.S.C § 1441.
For an action properly to be removed to federal court, the action must be one that "could have been originally filed in federal court"—that is, one over which a federal court could have exercised original federal subject-matter jurisdiction. Hernandez v. Conriv Realty Assocs., 116 F.3d 35, 38 (2d Cir. 1997) (citing 28 U.S.C. § 1441(a)). In this case, because Respondent has not demonstrated any basis for diversity jurisdiction under 28 U.S.C. § 1332, removal was proper only if the case presents a federal question under 28 U.S.C. § 1331.
Ordinarily, of course, the "presence or absence of federal-question jurisdiction is governed by the `well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). "Thus, a plaintiff may avoid federal jurisdiction by pleading only state law claims, even where federal claims are also available, and even if there is a federal defense." Fax Telecommunicaciones Inc. v. AT&T, 138 F.3d 479, 486 (2d Cir. 1998) (citing Caterpillar, 482 U.S. at 392-93). A defendant is, in any case, free to assert that the plaintiff's state-law claims are preempted by federal law, but the availability of that defense does not by itself give rise to federal-question jurisdiction. Cooper Union Fed'n of Coll. Teachers, Local 2163 v. Cooper Union for the Advancement of Sci. & Art, No. 18-CV-5891, 2019 WL 121000, at *2 (S.D.N.Y. Jan. 7, 2019).
"There is an exception, however, to the general rule that the plaintiff is `master of the claim.'" Whitehurst v. Staten Island Univ. Hosp., No. 18-CV-1090, 2018 WL 2744710, at *4 (E.D.N.Y. June 6, 2018) (citing Caterpillar, 482 U.S. at 392). Under the "artful-pleading doctrine," "a plaintiff cannot avoid removal . . . by framing in terms of state law a complaint the `real nature of which is federal, regardless of plaintiff's characterization[,]' or `by omitting to plead necessary federal questions in a complaint.'" Id. (alterations omitted) (quoting Derrico v. Sheehan Emergency Hosp., 844 F.2d 22, 27-28 (2d Cir. 1988)).
"The artful-pleading doctrine includes within it the doctrine of complete preemption," Sullivan v. Am. Airlines, Inc., 424 F.3d 267, 272 (2d Cir. 2005), under which a federal statute's preemptive force is "so extraordinary" that it "converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule," Caterpillar, 482 U.S. at 386 (internal quotation marks omitted). Thus, if a plaintiff "raises . . . a completely preempted state-law claim in his complaint, a court is obligated to construe the complaint as raising a federal claim and therefore `arising under' federal law." Sullivan, 424 F.3d at 272. Section 301 of the LMRA (29 U.S.C. § 185) is one of only three statutes that the U.S. Supreme Court has held possesses "the requisite extraordinary preemptive force to support complete preemption," id., and the only such statute that could possibly apply to this action. Thus, for this Court to have subject-matter jurisdiction over this petition, the state-law cause of action the petition asserts must be completely preempted by Section 301(a) of the LMRA.
A state-law claim is completely preempted by Section 301(a) of the LMRA if the claim is either (1) "founded directly on rights created by collective-bargaining agreements" or (2) "substantially dependent on analysis of a collective-bargaining agreement." Caterpillar, 482 U.S. at 394 (internal quotation marks omitted); Vera v. Saks & Co., 335 F.3d 109, 115-16 (2d Cir. 2003). Consistent with this principle, a plaintiff covered by a CBA may bring a claim "assert[ing] legal rights independent of that [CBA], including state-law contract rights," without triggering complete preemption under Section 301, "so long as the contract" underlying the claim "is not a [CBA]." Caterpillar, 482 U.S. at 396 (emphasis and citation omitted). Section 301, in other words, does not "preempt state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract." Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 212 (1985). Likewise, "the need merely to `consult' or `refer' to the CBA does not trigger preemption." Cooper Union Fed'n, 2019 WL 121000, at *2 (quoting Livadas v. Bradshaw, 512 U.S. 107, 124 (1994)). In contrast, however, "state-law rights and obligations that do not exist independently of private agreements" and "as a result can be waived or altered by agreement of private parties" are completely preempted by Section 301. Allis-Chalmers, 471 U.S. at 213 (emphasis added).
Resolving the parties' jurisdictional dispute requires properly characterizing the nature of the right Petitioner seeks to vindicate. Petitioner asserts that "[a]t no point during the arbitration or [this] proceeding has [she] alleged she was terminated in violation of rights conferred pursuant to a CBA." Dkt. 12 (Mem. in Supp. of Mot. to Remand) at 4-5. Rather, Petitioner says, she "alleges violations of her rights pursuant to the [NY]CHRL—rights that are
Petitioner's argument elides a critical distinction between her underlying grievance and this action. Petitioner's November 2014 complaint in state court asserted several claims arising under the NYCHRL and the NYSHRL. See Dkt. 5 ex. 5 (Summons & Compl.) at 11-21. It nowhere asserted any claim concerning a violation of the CBA or any other contract to which Petitioner may have been subject. Id. In contrast, her April 2018 petition to vacate the arbitrator's award—the petition now before this Court—contends that the arbitrator's decision on Petitioner's NYCHRL claims was "irrational," "not based in evidence or reason," and "not supported by the record." Dkt. 5 ex. 2 (Verified Pet.) ¶¶ 33-37. The two proceedings are fundamentally different: Petitioner's November 2014 complaint sought to vindicate her right not to be discriminated against in violation of the NYCHRL; her present petition seeks to enforce her purported right to an arbitral decision that is rational and based in evidence and reason. It does not resolve the jurisdictional question, therefore, to point out that Petitioner "alleges violations of her rights pursuant to the [NY]CHRL" and that those rights "are
A deep dive into the origins of the arbitrator's purported "rationality obligation," as the Court will hereafter refer to it, reveals that it does "not exist independently of" the parties' CBA, Allis-Chalmers, 471 U.S. at 213, and that this petition, which seeks to enforce that obligation, is instead a "claim[] founded directly on rights created by" a CBA, Caterpillar, 482 U.S. at 394. New York courts have long required an arbitrator to reach a rational decision when resolving a dispute and, consequently, have long recognized their own complementary authority to vacate or modify an arbitral award that violates that obligation. See, e.g., Wilkins v. Allen, 62 N.E. 575, 576 (N.Y. 1902) ("[A] court will not open an award unless perverse misconstruction or positive misconduct upon the part of the arbitrator is plainly established, or there is some provision in the agreement of submission authorizing it."). The modern statute governing New York courts' authority in this area, however—Section 7511(b)—does not mention any rationality obligation. Instead, by its own terms, Section 7511(b) permits vacatur of an arbitral award only on the grounds that (1) there was "corruption, fraud or misconduct in procuring the award"; (2) the arbitrator was not impartial; (3) the "arbitrator . . . exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made"; or (4) the parties or the arbitrator failed "to follow the procedure of" arbitration laid out in other parts of the statute. N.Y. C.P.L.R. § 7511(b)(1)(i)-(iv).
New York courts have incorporated the rationality obligation into the third of these provisions, treating an award that is irrational and groundless as one rendered in excess of the arbitrator's power to resolve the parties' dispute. See, e.g., Nat'l Cash Register Co. v. Wilson, 171 N.E.2d 302, 305 (N.Y. 1960) ("As to the Company's contention that the arbitrators `exceeded their powers' within the meaning of section [7511's statutory predecessor] it is enough to point out that . . . arbitrators may be said to have done so only if they gave a completely irrational construction to the provisions in dispute and, in effect, made a new contract for the parties.").
Viewed this way, it becomes clear that the principle Petitioner seeks to enforce here—the arbitrator's purported obligation to issue, and Petitioner's corresponding entitlement to, an award that is rational and grounded in evidence and reason, see Dkt. 5 ex. 2 (Verified Pet.) at ¶¶ 33-37—is "founded directly on rights created by [the] collective-bargaining agreement[]" between Respondent and Petitioner's union. Caterpillar, 482 U.S. at 394. Petitioner's suit under N.Y. C.P.L.R. section 7511(b) is, therefore, completely preempted by Section 301 of the LMRA.
The Court finds further confirmation of this conclusion in the New York Court of Appeals's citation to federal case law regarding the limitations federal common law imposes on an arbitrator's powers pursuant to a CBA and the corresponding authority of a court to review and nullify arbitral awards under Section 301. In United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960), the U.S. Supreme Court clarified that in the labor-management context, the scope of an arbitrator's authority to resolve a dispute is a creature of the parties' CBA and, consequently, a court's authority under federal common law to confirm or vacate the award is a function of whether the arbitrator acted within his CBAconferred powers when issuing it.
The Court notes that the authorities on which the parties rely do not neatly resolve whether Section 301 of the LMRA creates federal-question jurisdiction over a petition brought under N.Y. C.P.L.R. section 7511 to vacate an arbitrator's award issued pursuant to an arbitration clause that is part of a CBA. It is obvious, as Respondent points out, that Section 301 can provide federal-question jurisdiction over a petition to confirm or vacate an arbitral award. See Dkt. 14 (Mem. in Opp. to Mot. to Remand) at 6. But none of the cases Respondent cites for that proposition says anything about whether the rationality obligation Section 7511(b)(1)(iii) purports to impose on an arbitrator converts a petition to vacate an award issued after a CBA-required arbitration into a claim "founded directly on rights created by collective-bargaining agreements" or "substantially dependent on analysis of a collective-bargaining agreement," as complete preemption under Section 301 requires, Caterpillar, 482 U.S. at 394 (internal quotation marks omitted). Respondents' cases also arose from claims whose resolution would far more obviously require substantial interpretation of a CBA than Petitioner's. See, e.g., NBCUniversal Media v. Pickett, No. LA CV17-01404, 2017 WL 4708019, at *1, 4-6 (C.D. Cal. July 19, 2017) (holding that court had Section 301 jurisdiction over a petition to compel arbitration in the first instance pursuant to CBA's arbitration clause); Basir v. New Carlton Rehab. & Nursing Ctr., No. 13-CV-5726, 2015 WL 5579863, at *3-4 (E.D.N.Y. Sept. 22, 2015) (holding that Section 301 preempted petition under N.Y. C.P.L.R. to vacate award on ground that arbitrator rendered "his decision outside of the time constraints set forth in the CBA"). Similarly, Petitioner may be correct that "[c]ourts routinely hold that allegations based on state law violations are not preempted by Section 301," but none of the cases she cites, see Dkt. 15 (Reply in Supp. of Mot. to Remand) at 2, addresses whether Section 301 preempts a state-law claim seeking to vindicate a state-imposed limitation on the authority conferred on an arbitrator by a CBA. The cases she cites are, therefore, inapposite.
The question whether Section 301 of the LMRA completely preempts this particular petition is not cleanly controlled by existing authority. But after examining the nature of the right the petition seeks to vindicate—one which, as discussed, New York law purports to imply into the CBA arbitration clause that gave rise to the arbitrator's authority in the first place—the Court must conclude that the petition is "founded directly on rights created by [a] collectivebargaining agreement[]," Caterpillar, 482 U.S. at 394; see also Allis-Chalmers, 471 U.S. at 220 ("The right that [the plaintiff] asserts is rooted in contract. . . ."). It is therefore completely preempted by Section 301 of the LMRA, and this Court has federal-question jurisdiction over the petition.
Having denied Petitioner's motion to remand, the Court turns next to Petitioner's assertion that Respondent defaulted on this petition while it was in state court and is therefore "required to move to vacate the default" in this Court, "just as [Respondent] would be required to do in state court." Dkt. 12 (Mem. in Supp. of Mot. to Remand) at 7.
Petitioner's argument rests on a false premise. Although Respondent concedes that it did not respond to this petition by the return date Petitioner set in her notice of petition, see Dkt. 14 (Mem. in Opp. to Mot. to Remand) at 3 n.4 ("[I]t is true that [Respondent] did not respond to [Petitioner's] short-noticed petition in Supreme Court. . . ."), this Court can find no evidence— and Petitioner does not provide any—that Petitioner ever applied for a default or default judgment against Respondent, as New York law requires, see N.Y. C.P.L.R. § 3215, let alone that the New York County Supreme Court issued any certificate, judgment, or order noting a default or entering a default judgment.
For the foregoing reasons, Petitioner's motion to remand this case to state court is DENIED. Petitioner's argument that Respondent is "required to move to vacate [a] default," Dkt. 12 (Mem. in Supp. of Mot. to Remand) at 7, is rejected.
Because Petitioner's N.Y. C.P.L.R. section 7511 claim is completely preempted by Section 301 of the LMRA, it "must either be treated as a § 301 claim . . . or dismissed as pre-empted by federal labor-contract law." Allis-Chalmers, 471 U.S. at 220. No later than
Defendant Teraco Service Industries, Inc. ("Temco"), by its attorneys, hereby submits this Memorandum of Law in Support of its Motion to Dismiss the Complaint ("Complaint"), or, in the alternative, to compel arbitration pursuant to a collective bargaining agreement. For the reasons set forth herein, Temco respectfully submits that it is entitled to judgment dismissing the Complaint as a matter of law.
Plaintiff Aferdita Collaku ("Plaintiff"), a former employee of Temco, purports to allege employment discrimination on the basis of gender discrimination, hostile work environment, national origin and retaliation, race, color, age and national origin under the New York State Human Rights Law ("NYSHRL") and the New York City Human Rights Law ("NYCHRL").
Temco brings this Motion to Dismiss pursuant to CPLR §3211 and CPLR §7503 because Plaintiffs claims are preempted by the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185; Plaintiff has failed to exhaust his administrative remedies pursuant to a collective bargaining agreement; Plaintiff has not and cannot establish that his Union breached its duty of fair representation; and because Plaintiffs alleged discrimination claim is subject to a mandatory grievance and arbitration procedure set forth in a collective bargaining agreement.
Temco provides building maintenance and janitorial services to owners, managers and tenants of commercial and other properties in and around the New York City metropolitan area. Plaintiff was employed by Temco from in or about 2004 until her termination on March 10, 2014. Since at least 2005, Plaintiff was a member of SEIU Local 32B3J (the "Union").
On November 7, 2014, Plaintiff filed the instant Complaint alleging employment discrimination on the basis of gender, national origin, hostile work environment and retaliation in violation of the NYSHRL and the NYCHRL.
At all relevant times Temco was a member of the Realty Advisory Board on Labor Relations. Inc. ("RAB"), a multi-employer bargaining group representing, among others, building maintenance and janitorial service companies in collective bargaining with, among others. Service Employees International Union, Local 32BJ ("Union"). At all times relevant herein, the bargaining unit janitorial service employees of Temco employed in New York City, including Plaintiff, were covered by a collective bargaining agreement ("the Contractors Agreement" or "CBA") between the RAB and the Union which sets forth the terms and conditions governing the employment of bargaining unit employees, including Plaintiff (See CBA, which is annexed to Weinberg Aff. as Exhibit D).
The CBA contains broad grievance and arbitration provisions which are set forth in the Contractors Agreement at Articles V and VI thereof. The CBA provides, at Article V, paragraph 1(b), that the grievance procedure exists to:
See Weinberg Aff. at Exhibit D, page 13. The CBA provides, at Article VI, paragraph 1, that:
Id. at page 15. Paragraph 4 of the arbitration clause provides that the Contract Arbitrator has the broadest possible authority in interpreting the provisions of the CBA:
Id. at page 17.
In addition, the CBA contains a provision specifically making claims of discrimination, such as those brought by Plaintiff in this case, subject to the arbitration provisions of the CBA:
Id. at page 103, Article XIV (General Clauses, No Discrimination), paragraph 30 (emphasis added). Furthermore, following the United States Supreme Court's decision in 14 Penn Plaza LLC v. Pyett, 556 U.S. ___; 129 S.Ct. 1456, 1466 (2009), interpreting and enforcing
As set forth below, all of Plaintiff's discrimination claims are subject to mandatory arbitration and Temco is therefore entitled to an order dismissing the Complaint in its entirety and with prejudice and compelling Plaintiff to arbitrate her claims.
Plaintiff's claims should be dismissed because
As set forth below, Plaintiffs claims clearly fall under, are governed by and require the interpretation of the grievance, arbitration and "no discrimination" clauses of the CBA. Because Plaintiff's discrimination claims are substantially dependent on the meaning, significance, and review of the CBA, they are inextricably intertwined with the CBA and therefore preempted by federal labor law.
Section 301 of the LMRA provides that: "[s]uits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce [] may be brought in any district court of the United States having jurisdiction of the parties." 29 U.S.C. § 185(a). Section 301 "mandate[s] resort to federal rules of law in order to ensure uniform interpretation of collective-bargaining agreements, and thus to promote the peaceable consistent resolution of labor-management disputes." Lingle v. Norge Division of Magic Chef Inc., 486 U.S. 399, 404 (1988). "Section 301 [preempts state-law] claims founded directly on rights created by collective bargaining agreements, and also claims `substantially dependent upon an analysis of a collective bargaining agreement'." Id. at 410 (quoting Electrical Workers v. Hechler, 481 U.S. 851, 859, n. 3 (1989)). Any claim that challenges a provision in a CBA, must be brought under section 301. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210 (1985); Vera v. Saks & Co., 335 F.3d 109, 116 (2d Cir. 2003) ("plaintiffs challenge to the lawfulness of a term of the CBA will require substantial interpretation of the CBA.").
Plaintiff's claims are therefore preempted by Section 301 and should be dismissed.
Plaintiff failed to grieve and/or arbitrate her claims as required under the CBA. Any claims that are governed by the CBA and have not been grieved and/or arbitrated pursuant to the contract must be dismissed because Plaintiff has failed to exhaust her administrative remedies pursuant to the CBA.
The Second Circuit applies a two part test to determine the arbitrability of claims under a CBA: "(1) whether the parties agreed to arbitrate disputes at all; and (2) whether the dispute at issue comes within the scope of the arbitration agreement." Vera v. Saks & Company, 335 F.3d 109 at 117, (citing ACE Capitol Re Overseas Ltd. v. Cent. United Life Ins. Co., 307 F.3d 24, 28 (2d Cir. 2002)). It is clear from the language of the broad grievance and arbitration clauses in the Contractors Agreement that Plaintiffs discrimination and breach of contract claims are arbitrable under the CBA. As such, Plaintiff is "required to exhaust any grievance or arbitration remedies provided in the collective bargaining agreement"
As noted in Vera v. Saks & Company, 424 F.Supp.2d 694, 704 (S.D.N. Y. 2006), aff'd, 206 Fed. Appx. 66 (2d Cir. 2006):
Inasmuch as Plaintiff has failed to exhaust his administrative remedies with respect to his claims the Complaint should be dismissed.
An exception to the general rule requiring exhaustion of administrative remedies pursuant to the CBA exists only where an employee proves that his union has breached its duty of fair representation to him by failing to prosecute the grievance at all, or by failing to prosecute it properly. Young v. United States Postal Service, 907 F.3d 305 (2d Cir. 1990); Forkas v. Rumore, 881 F.Supp. 884 (S.D.N.Y. 1995); see also, DelCostello, supra. Here, Plaintiff makes no allegation that she attempted to grieve her discrimination claims or that her Union breached its duty of fair representation, and cannot avail herself of this exception to the requirement that she exhaust her administrative remedies. Therefore, the Complaint fails to state a claim upon which relief can be granted and should be dismissed.
In the event the Court determines that Plaintiff should nevertheless be permitted to proceed, her Complaint should be dismissed because she is obligated to arbitrate her discrimination claims pursuant to the CBA.
In a case involving the very same contract language — and, indeed, the same multi-employer bargaining association and Union — as that involved in the present case, the United States Supreme Court held that a collective bargaining agreement that clearly and unmistakably requires union members to arbitrate statutory claims of discrimination is enforceable as a matter of law, writing:
14 Penn Plaza LLC v. Pyett, 556 U.S. ___, 129 S.Ct. 1456, 1466 (2009).
Following the Court's opinion in Pyett, federal and state courts in New York have compelled arbitration of statutory discrimination claims under the NYSHRL and NYCHRL where such claims are the subject of mandatory arbitration pursuant to collective bargaining agreements. See Greene v. American Building Maintenance, No. 12-cv-4899 (DLI) (LB), 2013 WL 4647520, *3 (E.D.N.Y. August 28, 2013) ("Should Plaintiff wish to pursue his claims further, he must first utilize the grievance and arbitration procedures set forth in the CBA"); Mussafi v. Fishman, No. 12-cv-2071 (JGK), 2012 WL 5473874 (S.D.N.Y. Nov. 12, 2012); Bouras v. Good Hope Management Corp., No. 11-cv-8708 (WHP), 2012 WL 3055864, *4 (S.D.N.Y. July 24, 2012) (granting dismissal of Plaintiff's Complaint, holding that that Pyett and the identical CBA presented in the instant case "clearly and unmistakably requires arbitration of Bouras's Title VII Claim"); see also Gildea v. Bldg. Management, 10-cv-03347, 2011 WL 4343464 (S.D.N.Y. Aug. 16, 2011); Cukovic v. Temco Service Industries, Inc., 09-ev-6233 (AKH) (S.D.N.Y. July 30, 2010) (unreported decision); Duraku v. Tishman Speyer Properties, Inc., 714 F.Supp.2d 470 (S.D.N.Y. 2010) (holding that plaintiff's statutory discrimination claims are subject mandatory arbitration pursuant to the CBA); Johnson v. Tishman Speyer Properties, L.P., 09-cv-1959 (WHP), 2009 WL 3364038 (S.D.N.Y. Oct. 16, 2009); Borrero v. Rupperl Housing Co., 08-cv-5869 (HB), 2009 WL 1748060 (S.D.N.Y. June 19, 2009); Shipkevich v. Staten Island Univ. Hosp, 08-cv-1008 (FB), 2009 WL 1706590 (E.D.N.Y. June 16, 2009); Johnson, supra; Rodriguez v. Four Seasons Hotels, Ltd., 09-cv-2864 (DLC), 2009 WL 2001328 at *3 (S.D.N.Y. July 10, 2009); Fletcher v. Kidder, Peabody & Co., 91 N.Y.2d 623, 601 N.Y.S.2d 686, 619 N.E.2d 998, 1003 (1993); Sum v. Tishman Speyer Properties, Inc., 37 A.D.3d 284, 829 N.Y.S.2d 507 (1
Johnson, supra at *4 (holding that because all of plaintiff's claims must be arbitrated pursuant to CBA, "no useful purpose will be served by granting a stay of . . . [the] claims and the case may be dismissed" (citing Alemac Ins. Serv., Inc. v. Risk Transfer, Inc., 09-cv-1162 (WHP), 2003 WL 22024070 at *3 (S.D.N.Y. Aug. 28, 2003)).
All of Plaintiff's claims must be arbitrated and no useful purpose would be served by staying, rather than dismissing Plaintiff's Complaint.
For all of the foregoing reasons, it is respectfully submitted that Plaintiff's Complaint should be dismissed in its entirety and with prejudice.
