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Borrero v. Ruppert Housing Co.

June 19, 2009


The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge


Plaintiff Leo Borrero ("Borrero" or "Plaintiff") brings this action pro se against his former employer Ruppert Housing Co., Inc. ("Ruppert Housing" or "Defendant") alleging discrimination and retaliation on the basis of national origin and disability in violation of inter alia Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. ("Title VII").*fn1

Defendant moves to dismiss the complaint pursuant to Fed. R. Civ. Pro. 12(b)(6) and, in the alternative, to dismiss the action pursuant to Sections 3 and 4 of the Federal Arbitration Act, 9 U.S.C. §1 et seq ("FAA") based on the mandatory arbitration provision of the collective bargaining agreement to which Borrero was subject. Because the collective bargaining agreement clearly and unmistakably requires Borrero to arbitrate his claims, the Supreme Court's decision in 14 Penn Plaza LLC v. Pyett, 129 S.Ct. 1456 (2009), controls and Borrero's complaint is dismissed without prejudice.*fn2


From November of 1996 until September 2006 Borrero worked for Ruppert Housing in a building located on the Upper East Side of Manhattan. Borrero contends that he complained to management about, among other things, bonus, safety, and overtime issues and that he injured his back on the job in February of 2006.*fn3 After he was injured and his complaint to the union president went unanswered, Borrero filed a complaint with the Occupational Safety and Health Administration ("OSHA"). Borrero believes this caused Ruppert Housing to retaliate against him by assigning him work that was difficult to complete as a consequence of his injury. Borrero further contends that he was subjected to racial discrimination in connection with an incident in which he was cited for showing a "lack of respect" to a co-worker shortly before he his employment was terminated.

Defendant contends, and Borrero does not dispute, that the terms and conditions of his employment were governed by a collective bargaining agreement between the Service Employees International Union, Local 32BJ, AFL-CIO (the "Union") and the Realty Advisory Board on Labor Relations ("RAB") to which Defendant is a party. See Affirmation of Howard Rothschild, dated Oct. 15, 2008, Ex. A ("CBA"). Following his termination, Borrero filed a grievance with the Union that challenged his discharge but did not assert claims of discrimination. That grievance led to an arbitration that concluded with a finding that Borrero had been discharged for "just cause."*fn4

Borrero now asserts claims of national origin and disability discrimination against Ruppert Housing. The CBA expressly prohibits "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 . . . [and] the Americans with Disabilities Act." CBA at ¶ XVII.23. The CBA further provides that "all such claims shall be subject to the grievance and arbitration procedure ([set forth in] Articles V and VI) as sole and exclusive remedy for violations." Id.

DISCUSSION Defendant argues that Borrero's claims must be dismissed or stayed because the CBA unambiguously requires Borrero to arbitrate his claims. The Supreme Court's recent decision in Pyett compels me to agree. There the Supreme Court considered a collective bargaining agreement materially indistinguishable from that at issue here, and held that "a collective bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of federal law." 129 S.Ct. at 1474. It is clear that the Court's holding applies with equal force to Title VII claims. See Id., at 1478 (Stevens, dissenting) (noting the "unquestionable applicability" of Alexander v. Gardner-Denver, 415 U.S. 36 (1974), a Title VII case, to the issue of arbitratabity of ADEA claim); see also Lee v. City of Hartford/Hartford Public Schools, 289 F.Supp.2d 25, 28 (D.Conn. 2003)("[S]tatutory analyses under Title VII or the ADEA are generally interchangeable.") As a consequence, the FAA governs and I have no discretion but to direct the parties to proceed to arbitration. Genesco, Inc. v. T. Kakiuchi & Co., 815 F.2d 840, 844 (2d Cir.1987) ("By its terms, the [FAA] leaves no place for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed.")

Pursuant to Section 3 of the FAA, 9 U.S.C. § 3, a district court must stay an action that is subject to arbitration until the arbitration is complete. However, "courts have the discretion to dismiss - rather than stay - an action when all of the issues in it must be arbitrated," Milgrim v. Backroads, Inc., 142 F.Supp.2d 471, 476 (S.D.N.Y. 2001) (emphasis added), and here the CBA compels Borrero to arbitrate all of the claims he asserts in his complaint. As a consequence "'no useful purpose will be served by granting a stay of these proceedings.'" White v. Cantor Fitqberald L.P. No. 07 Civ. 8006 (DAB), 2008 WL 5429648, *6 (S.D.N.Y. Dec. 23, 2008) (quoting Berger v. Cantor Fitzgerald Secs., 967 F.Supp. 91, 96 (S.D.N.Y. 1997)).

I dismiss the complaint without prejudice, however, because if Borrero is prevented by the Union from arbitrating his claims, the CBA's arbitration provision will not be enforceable. Kravar v. Triangle Services, Inc., No. 06 Civ. 7858 (RJH), 2009 WL 1392595, *3 (S.D.N.Y. May 19, 2009) (considering two-step grievance and arbitration procedure substantially identical to that created by the CBA and holding that Pyett expressly provided for an exception to the enforceability of a union-negotiated arbitration agreement where the union prevents a member from arbitrating her disability discrimination claims). Should Borrero's attempts to arbitrate his claims be thwarted by the Union, the CBA will have operated as a "substantive waiver" of his statutorily created rights and he will have the right to re-file his claims in federal court. Id. (citing Pyett, 129 S.Ct. at 1474).


For the foregoing reasons, Defendant's motion to dismiss the complaint in favor of atbitration is GRANTED and the parties are directed to proceed expeditiously to arbitration. Borrero may seek arbitration of his dispute by filing a grievance with the Union. Should he choose to do so, I trust the grievance will be taken seriously and allowed to proceed to arbitratoin to avoid the necessity of further action in this Court to ensure that Borrero receives a full and fair opportunity to vindicate his federally protected civil rights. See Kravar, 2009 WL 1392595 at *3. The Clerk of the Court is directed close this and any other open motions and to DISMISS this case WITHOUT PREJUDICE.

SO ...

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