ARBITRATION OF DISCRIMINATION CLAIMS

Wilson v. PBM, LLC, 2021 NY Slip Op 593 - NY: Appellate Div., 2nd Dept. February 3, 2021:

"The plaintiff is an African-American male who was employed by the defendant PBM, LLC, doing business as Perfect Building Maintenance Corp. (hereinafter PBM), as a porter and freight elevator operator from 2002 until termination of his employment in August 2014. PBM is a privately held company that provides janitorial and related services to single- and multi-tenant properties in the northeast area. It is a member of the RAB, a multi-employer bargaining association. While at PBM, the plaintiff was a member of the Union. The terms and conditions of the plaintiff's employment during the relevant time period were governed by the CBA, which was effective January 1, 2012, to December 31, 2015. Section 30(A) of Article XVI of the CBA, which addresses arbitration, provides that discrimination claims "shall be subject to the grievance and arbitration procedure (Article V and VI) as the sole and exclusive remedy for violations." Section 30(B), the No-Discrimination Protocol, provides, inter alia, for arbitration procedures when the Union has declined to take an individual employee's employment discrimination claims set forth in section 30(A) to arbitration.

The plaintiff alleges that, at his workplace, he routinely experienced discrimination, was subjected to a hostile work environment, and was discharged from his employment due to his race. He asserts that beginning in or around December 2012, his direct supervisor began to routinely refer to him as "boy," and from July 2013 until February 2014, he observed "several nooses" hanging in the workplace. After filing a grievance with the Union, the plaintiff was reassigned to another building, without being given any explanation for the transfer. On February 7, 2014, the plaintiff filed a second grievance with the Union regarding the transfer and alleging racial discrimination. He was then reassigned a second time to a different building, where he was required to undergo a background check which revealed that he had prior criminal convictions that he had failed to report on his original employment application. The plaintiff's employment was terminated on August 4, 2014. The plaintiff filed another grievance on the basis that he was unjustly discharged. While the Union arbitrated the plaintiff's unjust discharge complaints, it declined to arbitrate the plaintiff's claims of racial discrimination. In October 2015, the plaintiff attempted without success to mediate the discrimination claims. Thereafter, in December 2015, the plaintiff commenced this action against PBM and several of PBM's employees to recover damages, alleging discrimination and hostile work environment based on race and retaliation under 42 USC § 1981, the New York State Human Rights Law (Executive Law § 296; hereinafter NYSHRL), and the New York City Human Rights Law (Administrative Code of City of NY, tit 8; hereinafter NYCHRL). The plaintiff also alleged causes of action to recover damages for negligence, negligent supervision and retention, and negligent training.

In May 2016, the defendants moved pursuant to CPLR 7503 to compel arbitration and/or, in effect, pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint. They argued that the plaintiff's claims were subject to mandatory arbitration pursuant to the terms of the CBA. The Supreme Court granted the defendants' motion. The plaintiff appeals.

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...As previously noted, the CBA contains the No-Discrimination Protocol, a pilot program originally initiated by the Union and the RAB in response to their dispute following Pyett, which specifically provides procedures for the plaintiff to arbitrate his discrimination claims in the circumstance when the Union has declined to pursue them. The plaintiff's additional argument that the CBA is not enforceable because it requires him to arbitrate his claims on his own when the Union declines to do so is equally unavailing, as he had access to the arbitral forum, whether through the Union, or on his own, to vindicate his statutory rights (see Glover v Colliers Intl. NY, LLC, 2014 WL 5410016, 2014 US Dist LEXIS 151227 [SD NY, No. 13-CV-8843 (JMF)]; Germosen v ABM Indus. Corp., 2014 WL 4211347, 2014 US Dist LEXIS 119092).

Many United States District Courts have decided cases involving collective bargaining agreements similar to the one herein. These courts have rejected arguments posited by parties similar to the substantive waiver argument presented by the plaintiff herein (see Hamzaraj v ABM Janitorial Northeast Inc., 2016 WL 3571387, 2016 US Dist LEXIS 83216 [finding that the plaintiff's statutory discrimination claims were subject to mandatory arbitration where the collective bargaining agreement at issue contained the Protocol. The court reasoned that there was no waiver of the plaintiff's statutory rights nor was he prevented from vindicating them in the arbitral forum, noting that even if the Union declined to take the plaintiff's discrimination claim to arbitration, the collective bargaining agreement provided a means for him to pursue his claim in arbitration independently]; Glover v Colliers Intl. NY, LLC, 2014 WL 5410016, *4, 2014 US Dist LEXIS 151227, *12-13 [finding that the plaintiff's ADEA claims were subject to mandatory arbitration. The court reasoned that "[a]lthough Pyett did leave open the possibility that an arbitration clause could be deemed unenforceable if it prevents plaintiffs from effectively vindicating their federal statutory rights in the arbitral forum, that potential escape hatch" did not apply as the agreement at issue provided for procedures for arbitration when the Union declined to bring an employee's claim to arbitration (internal quotation marks and citation omitted)]; Germosen v ABM Indus. Corp., 2014 WL 4211347, 2014 US Dist LEXIS 119092 [finding that the plaintiff's claims were subject to mandatory arbitration pursuant to the terms of the collective bargaining agreement]; Jenkins v Collins Bldg. Servs., Inc., 2013 WL 8112381, 2013 US Dist LEXIS 186412 [SD NY, No. 10-Civ-6305 (AKH)] [noting that the court had repeatedly concluded that under the supplemental collective bargaining agreement, which provides procedures for individual employees to arbitrate their statutory discrimination claims in those circumstances when the Union has declined to do so, individual employees are required to arbitrate their claims]).

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