McClellan v Majestic Tenants Corp.

[*1] McClellan v Majestic Tenants Corp. 2008 NY Slip Op 51304(U) [20 Misc 3d 1110(A)] Decided on June 27, 2008 Supreme Court, Bronx County Hunter, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 27, 2008
Supreme Court, Bronx County

Sammie McClellan, Plaintiff,

against

Majestic Tenants Corp. and Kaled Management Corp., Defendants.



302489/07



Attorneys for Plaintiff: Michael G. O'Neill, Esq. and Kosta Kolleff, Esq.

Attorneys for Defendants: Michael A. Levine, Esq. and Kenneth J. Anand, Esq.

Alexander W. Hunter, J.

The motion by defendants for an order dismissing plaintiff's action is granted.

Plaintiff began his employment with defendants in 1984, first as a doorman and later as a porter. He was terminated from his employment on December 9, 2005. On January 9, 2006, plaintiff's union, Service Employees International Union Local 32B-32J ("Local 32B-32-J"), brought a grievance on behalf of the plaintiff alleging unjust termination by defendants and seeking plaintiff's reinstatement to his prior position with full back pay, benefits, seniority and contributions to the benefit funds lost by his unjust termination. A hearing was held before an arbitrator on March 13, 2006, May 22, 2006, September 5, 2006 and October 30, 2006. On November 15, 2006, the arbitrator rendered her decision finding that there was just cause for plaintiff's termination. Plaintiff filed the instant action on or about November 1, 2007, alleging discrimination and harassment based on his race and age in violation of the New York State Human Rights Law ("NYSHRL") and the New York City Human Rights Code ("NYCHRC").

Defendants assert that plaintiff's cause of action must be dismissed. Defendants contend that plaintiff was employed with them pursuant to successive collective bargaining agreements between Local 32B-32J and The Realty Advisory Board on Labor Relations Incorporated ("RAB"). Said collective bargaining agreements which covered defendants' employees including the plaintiff, exclusively require that all statutory discrimination claims, including those brought under NYSHRL and NYCHRC are to be resolved exclusively by arbitration. Defendants annex a copy of the two collective bargaining agreements at issue, one covering the periods of April 21, 2003 to April 20, 2006 and the other becoming effective April 21, 2006 to [*2]April 20, 2010. The agreements contain grievance, arbitration and nondiscrimination provisions. The relevant language cited by defendants appears in Article XVII, paragraph 23 of each agreement and states as follows:

There shall be no discrimination against any present or future employee by reason of race, creed, color, age, disability, national origin, sex, sexual orientation, union membership, or any characteristic protected by law, including, but not limited to, claims made pursuant to Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, 42 U.S.C. Section 1981, Family and Medical Leave Act, the New York State Human Rights Law, the New York City Human Rights Code, or any other similar laws, rules or regulations. All such claims shall be subject to the grievance and arbitration procedure (Articles V and VI) as sole and exclusive remedy for violations.

Defendants further argue that at plaintiff's arbitration, each party was represented by counsel and was afforded an opportunity to present evidence and argument and to examine and cross-examine witnesses. Defendants assert that at his arbitration, the plaintiff did not raise any arguments with respect to employment discrimination and that said claims can only be addressed in an arbitration. Therefore, plaintiff is barred from raising those claims in this action. Defendants rely on the case of Sum v. Tishman Speyer Properties, Inc., 37 AD3d 284 (1st Dept. 2007) as the controlling case. They further refer to several other cases, including two from the trial courts in New York County, in support of their argument for dismissal.

Plaintiff opposes the motion and submits an affidavit wherein he states that beginning in 1991, he was discriminated against by defendants and "subjected to different terms and conditions of employment based on my race and age such as worse work assignments, loss of extra income and ongoing harassment..." (Plaintiff's Affidavit, Exhibit A). Plaintiff further asserts in his affidavit that after his discharge from employment, he asked his union delegate, Gallo Garcia, and his union lawyer, Lia Fiol-Matta, to raise the discrimination claims against his employer in the union grievance and arbitration process but the union lawyer told him that the union did not grieve or arbitrate discrimination claims. Therefore, plaintiff hired private counsel to litigate his discrimination claims.

Plaintiff's counsel submits a copy of a letter he sent to plaintiff's union lawyer, Lia Fiol-Matta, asking her to clarify the union's position regarding the application of the arbitration clause in the collective bargaining agreement to plaintiff's statutory discrimination claims. Plaintiff's counsel asserts that the union lawyer telephoned him in response to the letter and told him that the union's position was that "the arbitration clause was not enforceable vis a vis statutory discrimination claims, that it did not bar plaintiff from pursuing those claims in a judicial forum, and that the Union would not assert those claims on behalf of the plaintiff. (O'Neill Aff., para. 3).

Plaintiff further argues that even though the agreement to arbitrate appeared in the collective bargaining agreement between Local 32B-32J and the defendants, plaintiff did not personally make such an agreement. Therefore, there was no actual enforceable agreement [*3]requiring arbitration of plaintiff's New York City and New York State statutory claims. Plaintiff then cites to federal case law and asserts that federal courts have found unenforceable collective bargaining agreement waivers of an individual union member's right to litigate state and city discrimination claims.

Plaintiff acknowledges that the Appellate Division, First Department in the case of Sum v. Tishman Speyer Properties, Inc., (supra), has ruled on the issue of whether the very same collective bargaining agreement arbitration clause that exists in the case at bar, creates an enforceable waiver of the right to litigate discrimination claims. Plaintiff points out that the New York State Court of Appeals granted leave to appeal the Sum v. Tishman (supra) case on December 20, 2007 and asks that if this court is not prepared to deny the defendant's motion to dismiss, then this matter should be stayed pending the decision by the Court of Appeals in Sum v. Tishman.

In reply, defendants point out that plaintiff failed to produce an affidavit from the union attorney attesting to the fact that she informed both the plaintiff and his attorney that the union did not arbitrate discrimination claims. Defendants argue that even if the plaintiff and his attorney were told by the union that they would not arbitrate the discrimination claims, they did not object to the union's failure to present said claims nor did they challenge the arbitration opinion and award.

In the case of Sum v. Tishman (supra), the Appellate Division, First Department stated that the collective bargaining agreement governing plaintiff's employment contained an arbitration agreement "...that specifically includes within its scope gender discrimination claims under the New York City Human Rights Law. This union-negotiated waiver of plaintiff's right to a judicial forum to pursue the statutory claims here at issue is clear and unmistakable,' and enforceable..." (Citations omitted). Id.; see also, Odeh v. Brown Harris Stevens Residential Mgmt. LLC, 2008 WL 169678.

With respect to plaintiff's arguments that federal law has found unenforceable collective bargaining agreement waivers of an individual union member's right to litigate state and city discrimination claims, the court in Garcia v. Bellmarc Property Mgmt, 295 AD2d 233 (1st Dept. 2002) reviewed the collective bargaining agreement between Local 32B-32J and RAB which contained an arbitration agreement that expressly covered age discrimination claims under the Human Rights Law. The court held that, " [B]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial forum...[The cases] relied on by plaintiff as holding that contractual anti-discrimination claims are distinct form statutory anti-discrimination claims, and that only the former can be waived, was not decided under the FAA [Federal Arbitration Act]...and does not reflect modern policy favoring arbitration." Id. at 234.

Accordingly, under current binding precedent, plaintiff's complaint must be dismissed because his discrimination claims are subject to the mandatory arbitration provisions of the collective bargaining agreement between Local 32B-32J and RAB. Moreover, neither plaintiff [*4]nor his counsel ever objected to the union's failure to represent his discrimination claims nor did they demonstrate that they attempted in any way to challenge the arbitration opinion and award.

Movant is directed to serve a copy of this order with notice of entry upon the plaintiff and file proof thereof with the clerk's office.

This constitutes the decision and order of the court.

Dated June 27, 2008

J.S.C.