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Cox v. Perfect Building Maintenance Corp.

United States District Court, S.D. New York

July 18, 2017

ROSA COX, Plaintiff,
v.
PERFECT BUILDING MAINTENANCE CORP., Defendant.

          OPINION & ORDER

          VALERIE CAPRONI, United States District Judge

         Plaintiff Rosa Cox (“Cox”) alleges that her former employer, Defendant Perfect Building Maintenance Corp. (“PBM”), discriminated against her in violation of federal, state, and city laws. PBM moves to dismiss Cox's First Amended Complaint (“FAC”) pursuant to Fed.R.Civ.P. 12(b)(1) and Rule 12(b)(6), or, in the alternative, to compel mediation and arbitration. Dkt. 9 (the “Motion”). Specifically, PBM argues that Cox's claims are subject to mandatory arbitration pursuant to a collective bargaining agreement (the “CBA”) and that her claims are barred by res judicata. Because the Court concludes that res judicata bars Cox's claims, the Motion is GRANTED.

         FACTUAL BACKGROUND

         A. Plaintiff's Employment and Transfer

         For over five years, Cox was employed as a “Light Cleaner” with PBM. FAC ¶¶ 7-8.[1]After a lengthy medical leave, Cox returned to work as a “Light Cleaner, ” until she was transferred to another building. FAC ¶¶ 9-10. Cox objected to her transfer. FAC ¶¶ 11-12. Cox alleges that a younger person replaced her and that she was not given a reasonable accommodation consistent with her medical condition. FAC ¶ 14.[2]

         B. The CBA and Arbitral Award[3]

         Pursuant to the CBA between Cox's Union and the Realty Advisory Board on Labor Relations, Inc., a multi-employer bargaining representative of which PBM is a member, all claims of employment discrimination must be arbitrated. CBA at 112. The parties do not dispute that Cox was a member of the Services Employees International Union, Local 32BJ (“the Union”) at the time of these events and that the CBA is applicable to Cox's claims of employment discrimination.

         Article XVI of the CBA provides, in relevant part:

There shall be no discrimination against any present or future employee by reason of . . . age, disability . . . or any characteristic protected by law, including, but not limited to, claims made pursuant to . . . the Americans with Disabilities Act, . . . the Age Discrimination in Employment 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 (Article V and VI) as the sole and exclusive remedy for violations. Arbitrators shall apply appropriate law in rendering decisions based upon claims of discrimination.

Id. The arbitration procedures set forth in the CBA constitute “the sole and exclusive method for the determination, ” CBA at 17, of all issues arising from “differences . . . between the parties as to interpretation, application or performance of any part of [the CBA]. . . .” CBA at 15.

         Pursuant to the CBA, the Union filed a grievance on Cox's behalf, alleging that Cox “was transferred to a new building without justification.” Award at 1. The arbitrator held a hearing and issued a nine-page Award addressing Cox's proposed transfer to another building, the events surrounding her termination, and the evidence (or lack thereof) submitted by both sides. During the arbitration, Cox argued that she should not have been transferred in light of PBM's seniority-based transfer policy. Id. at 4. Cox also argued that she was unable to perform [new or alternatively offered] duties due to her medical condition.” Id. The arbitrator ultimately concluded that Cox's new position was the same as her prior position and that she failed to request a reasonable accommodation, instead “simply cho[osing] not to show up for work.” Id. at 7. After reviewing the factual record, including witness testimony, the arbitrator denied Cox's grievance and concluded that PBM did not violate the CBA when it transferred Cox to another building. Id. at 8.

         PBM moved to dismiss the FAC for failure to exhaust administrative remedies, or in the alternative, to compel arbitration. Def.'s Motion. Although the FAC did not mention that she had already arbitrated PBM's transfer decision, in response to PBM's motion to dismiss, Cox asserted that she had already (unsuccessfully) arbitrated her claims, Opp. Br. at 2-3, attached a copy of the Award, and argued that because she had exhausted her administrative remedies, this lawsuit should proceed, Opp. Br. at 1-2. In reply, PBM argued that the FAC should be dismissed based on res judicata. Def.'s Reply Br. at 1-2. Because PBM had not asserted res judicata as a basis for dismissal in its opening brief, the Court granted Cox the opportunity to file a supplemental reply brief. Dkt. 18. In her Supplemental Reply, Cox argued that the arbitral award could not be given preclusive effect at the Rule 12(b)(6) stage and that a prior arbitration could not preclude a plaintiff from later asserting statutory claims in a judicial forum. Supp. Opp. Br. at 3-4.

         For the following reasons, the Court agrees with PBM that Cox's ...


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