Favors et al v. Triangle Services, Inc. et al

Filing 37

ORDER granting 29 Motion to Compel Arbitration: For the reasons set forth in the attached, Defendants' motion to compel arbitration is granted, this case is stayed, and the Court's August 18, 2015 Temporary Restraining Order is lifted. I f Plaintiff wishes to proceed with his claims, he is directed to submit to the grievance procedures contemplated by Article XVI, Section 30(A) of CBA. If the Union declines to take his claims to arbitration notwithstanding Plaintiff's request, then he is directed to submit to the mediation and arbitration procedures outlined in Article XVI, Section 30(B) of the CBA. The parties are directed to inform the Court of any resolution of the arbitration proceedings, or any other event, that would affect the stay of this matter. Ordered by Judge Pamela K. Chen on 9/13/2016. (Merin, Eric)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------x
CEDRIC FAVORS,
Plaintiff,
- against TRIANGLE SERVICES, INC., TRIANGLE
AVIATION
SERVICES,
INC,
XYZ
CORPORATION
#1-2,
ABADEEN
MUSTAFACKO, AVDO DJOKOVIC, JOHN
DOES #1-30, and SERVICE EMPLOYEES
INTERNATIONAL UNION LOCAL 32BJ,

ORDER GRANTING MOTION TO
COMPEL ARBITRATION
15-CV-03817 (PKC) (LB)

Defendants.
-------------------------------------------------------x
PAMELA K. CHEN, United States District Judge:
Plaintiff Cedric Favors brings this employment discrimination action against Triangle
Services, Inc., Triangle Aviation Services, Inc., XYZ Corporation #1-2, Abadeen Mustafacko,
Avdo Djokovic, John Does #1-30 (the “Triangle Defendants”), and Service Employees
International Union Local 32BJ (the “Union”) (collectively “Defendants”).

The Triangle

Defendants have moved to compel arbitration and dismiss Plaintiff’s statutory discrimination
claims 1 pursuant to a collective bargaining agreement (the “CBA”) entered into between the Union
and the Real Estate Advisory Board on Labor Relations, Inc. (the “RAB”). 2 Based on the parties’

1

Despite Plaintiff having voluntarily dismissed many of his original claims, see infra at 23, in addition to Plaintiff’s statutory discrimination claims, there remain State law claims for civil
conspiracy and tort. (Dkt. 18, First Amended Complaint (“FAC”) ¶¶ 173-183.)
2

The parties disagree as to the governing collective bargaining agreement in this case.
Based on a review of the CBAs at issue and the parties’ representations that there are no substantive
differences between the CBAs with respect to the relevant issues, the Court declines to decide
which CBA governs. (Dkt. 31 (“Pl.’s Opp.”) at ECF 8 n.2 (“The parties . . . agree that the
substantive provisions relevant to the instant Motion in the Contractor CBA and the Commercial
Building CBA are substantively identical, so the distinction is not particularly important for the
purposes of this Motion.”); Dkt. 36 (“Defs.’ Reply”) at ECF 6 n.1 (“Whether the ‘Contractor’s

submissions and for the reasons set forth below, the Court grants the Triangle Defendants’ motion
to compel arbitration, stays this action pending Plaintiff’s participation in alternative grievance
procedures, and sua sponte lifts the Temporary Restraining Order it imposed on August 18, 2015
(Dkt. 17.)
BACKGROUND 3
On June 30, 2015, Plaintiff filed a Complaint against all Defendants alleging that he was
discriminated against on the basis of his race. (Dkt. 1.) Plaintiff subsequently moved for a
temporary restraining order on August 13, 2015, asking the Court, among other things, for
permission to file an amended complaint and a temporary restraining order enjoining Defendants
from engaging in an arbitration on his employment discrimination claims. (Dkt. 10.) The Court
heard oral argument on August 18, 2015 and subsequently enjoined Defendants “from engaging
in, participating in, or conducting an arbitration of any matters related to Plaintiff’s
allegations . . . without further Order of the Court.” (Dkt. 17.) With Defendants’ consent, the
Court also permitted Plaintiff to file an amended complaint. (8/18/2015 Minute Entry.)
Plaintiff filed the First Amended Complaint on August 24, 2015. (Dkt. 18.) On November
2, 2015, Plaintiff voluntarily dismissed with prejudice all causes of action against the Union and
Defendants John Does #11-30 “to the extent they are employees or representatives of the Union.”
(Dkt. 25.) On December 15, 2015, Plaintiff further dismissed with prejudice all causes of action

Agreement’ or the ‘Commercial Building Agreement’ applies is immaterial.”).) For ease of the
reference in this Order, the Court cites to the 2012 Contractors Agreement (Dkt. 32-1, the “CBA”)
submitted by Plaintiff.
Citations to “ECF” refer to the pagination generated by the Court’s electronic docketing
system and not the documents internal pagination.
3

The Court assumes the parties’ familiarity with the underlying facts supporting Plaintiff’s
allegations and does not recite them herein.
2

arising under Title VII against Defendants Abadeen Mustafacko, Avdo Djokovic, and John Does
#1-30, and the Nineteenth (Negligence), Twentieth (Breach of Contract), and Twenty-Second
(§ 301 of the Labor Management Relations Act) causes of action. (Dkt. 28.) 4 On January 5, 2016,
the Triangle Defendants moved to compel arbitration of Plaintiff’s claims. (Dkt. 29.)
DISCUSSION
I.

LEGAL STANDARD UNDER THE FEDERAL ARBITRATION ACT
The Federal Arbitration Act (the “FAA”), 9 U.S.C. §1 et seq., “creates a body of federal

substantive law of arbitrability applicable to arbitration agreements . . . affecting interstate
commerce.” Ragone v. Atl. Video at Manhattan Ctr., 595 F.3d 115, 121 (2d Cir. 2010) (quotation
and citation omitted). 5 The FAA was enacted to reverse “centuries of judicial hostility to
arbitration agreements” and “to place arbitration agreements upon the same footing as other
contracts.” Scherk v. Alberto-Culver Co., 417 U.S. 506, 511 (1974) (quotation and citation
omitted).

“[T]he FAA embod[ies] [a] national policy favoring arbitration.”

Nicosia v.

Amazon.com, Inc., 15-CV-423, 2016 WL 4473225, at *3 (2d Cir. Aug. 25, 2016) (quotation and
citation omitted) (alterations in original). “[T]his policy is founded on a desire to preserve the

4

Defendants assert that this stipulation dismissed the Twenty-First cause of action (Breach
of Fair Representation). This is not so. According to the stipulation, Plaintiff withdrew his
Nineteenth, Twentieth, and Twenty-Second causes of action. (Dkt. 28 ¶ 2 (“The Nineteenth,
Twentieth, and Twenty Second causes of action . . . hereby are withdrawn/dismissed with
prejudice[.]”).) Defendants’ mistake, however, is of no consequence because Plaintiff had
previously withdrawn all causes of action against the Union. (Dkt. 5.) Plaintiff’s twenty-first
cause of action for breach of fair representation was only asserted against the Union and is thus
deemed dismissed with prejudice pursuant to Plaintiff’s November 2, 2015 notice of voluntary
dismissal.
5

Alternatively, Defendants move to dismiss Plaintiff’s claims pursuant to Federal Rules of
Civil Procedure 12(b)(1) and (6). Because the Court is staying this action pending Plaintiff’s
participation in the CBA’s alternative grievance procedure, it need not address Plaintiff’s
arguments under those provisions.
3

parties’ ability to agree to arbitrate, rather than litigate, disputes.” Id. (quotation and citation
omitted) (alterations in original). Consistent with this purpose, Section 4 of the FAA requires
courts to compel arbitration in accordance with the terms of an arbitration agreement upon the
motion of either party to the agreement, provided that there is no issue regarding its formation or
validity. AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 344 (2011) (citing 9 U.S.C. § 4).
“In deciding motions to compel, courts apply a standard similar to that applicable for a
motion for summary judgment,” Nicosia, 2016 WL 4473225, at * 4 (quotations and citations
omitted), and courts may therefore consider materials outside the Complaint, including the parties’
collective bargaining agreement. See, e.g., HBC Solutions, Inc. v. Harris Corp., 13-CV-6327,
2014 WL 6982921, at *1 (S.D.N.Y. Dec. 10, 2014). “[W]here the undisputed facts in the record
require the matter of arbitrability to be decided against one side or the other as a matter of law, [a
court] may rule on the basis of that legal issue and avoid the need for further court proceedings.”
Wachovia Bank, Nat'l Ass’n v. VCG Special Opportunities Master Fund, Ltd., 661 F.3d 164, 172
(2d Cir. 2011) (quotation omitted). The party “seeking to avoid arbitration generally bears the
burden of showing the agreement to be inapplicable or invalid.” Harrington v. Atl. Sounding Co.,
Inc., 602 F.3d 113, 124 (2d Cir. 2010) (citing Green Tree Fin. Corp.-Alabama v. Randolph, 531
U.S. 79, 91-92 (2000)).
II.

THE COLLECTIVE BARGAINING AGREEMENT
At all relevant times during his employment, Plaintiff was bound by the CBA entered into

between the Union and the RAB. Article XVI, Section 30(A) of the CBA (the “No-Discrimination
Clause”) contains the arbitration mechanism now being invoked by Defendants. It provides, in
relevant part:
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
4

membership or any characteristic protected by law, including, but not limited to,
claims made pursuant to Title VII of the Civil Rights 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 . . . as the sole and exclusive remedy for violations.
Arbitrators shall apply appropriate law in rendering decisions based upon claims of
discrimination.
(CBA Art. XVI § 30(A) (emphasis added).)
Article XVI, Section 30(B) of the CBA (the “No-Discrimination Protocol”) contains the
provisions relied upon by Plaintiff in arguing against arbitration. This section is “applicable to all
. . . claims, whenever they arise.” (Id. § 30(B).) As part of the No-Discrimination Protocol,
“[w]henever it is claimed that an employer has violated the [No-Discrimination Clause] (including
claims based in statute), whether such claim is made by the Union or by an individual
employee . . . the matter shall be submitted to mediation, absent prior resolution through informal
means.”

(Id. § 30(B)(2)(a).) 6

The No-Discrimination Protocol also sets forth arbitration

procedures for “circumstances in which the Union has declined to take an individual employee’s
employment discrimination claim . . . to arbitration and the employee is desirous of litigating the
claim.” (Id. § 30(B)(3)(a).) Article VI of the CBA provides that an arbitration award is “final and
binding . . . provided, however, that nothing [in the CBA] shall be construed to forbid either of the
parties from resorting to court for relief from, or to enforce rights under, any arbitration award.”
(Id. Art. VI § 4.)

6

As discussed infra, like many courts in this Circuit, the Court treats mediation as part of,
or synonymous with, the arbitration process. See, e.g., Ukshini v. Comity Realty Corp., 15-CV6214, 2016 WL 1733468, at *3 (S.D.N.Y. Apr. 29, 2016) (submitting claims to arbitration and
mediation); Garcia v. Frank, 09 Civ. 4599, 2010 U.S. Dist. LEXIS 142619, *10 (S.D.N.Y. July
28, 2010) (“[T]he CBA and [agreement similar to the No-Discrimination Protocol] expressly
require the resolution of Plaintiff’s statutory claims through mediation and/or arbitration.”)

5

The seeming conflict between the CBA’s No-Discrimination Clause and its NoDiscrimination Protocol, as discussed infra, is due to recent case law development with respect to
arbitration clauses in collective bargaining agreements. However, as the Court concludes below,
there is no actual conflict between these two provisions, which can, and must, be read in tandem,
to require that, pursuant to the CBA, all individual employee claims of discrimination must be
arbitrated.
III.

ENFORCEABILITY OF CBA’S ARBITRATION CLAUSE
A.

Applicability of No-Discrimination Clause Versus No-Discrimination
Protocol, and Union Decision to Decline Arbitration

In 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009), the United States Supreme Court
made clear that a mandatory arbitration clause in a collective bargaining agreement is enforceable
as to union members where it “clearly and unmistakably requires union members to arbitrate [the
federal statutory claim],” and Congress has not prohibited those claims from being arbitrated. Id.
at 257, 274. Courts in this Circuit have since applied Penn Plaza’s holding to claims arising under
Title VII and other employment discrimination statutes including those alleged by Plaintiff here.
See, e.g., Greene v. Am. Bldg. Maint., 12-CV-4899, 2013 WL 4647520, at *3 (E.D.N.Y. Aug. 28,
2013) (“[S]uch language clearly and unmistakably requires Plaintiff to submit to the CBA’s
grievance and arbitration procedures[.]”); Veliz v. Collins Bldg. Servs., Inc., 10 Civ. 06615, 2011
WL 4444498, at *4 (S.D.N.Y. Sept. 26, 2011) (“[B]ecause [the plaintiff] has not utilized the
grievance and arbitration procedures as required by the CBA, his [Title VII and ADEA] claims
against [the defendant] are dismissed.”); Johnson v. Tishman Speyer Props., L.P., 09 Civ. 1959,
2009 WL 3364038, at *3 (S.D.N.Y. Oct. 16, 2009) (“Because the CBA evidences a clear intent to
arbitrate, [the plaintiff’s] statutory race discrimination claims are within the scope of the arbitration

6

clause.”); Borrero v. Ruppert Housing Co., 08 Civ. 5869, 2009 WL 1748060, at *2-3 (S.D.N.Y.
June 19, 2009) (compelling plaintiff to arbitrate discrimination claims). 7
Penn Plaza, however, expressly left open whether a CBA that allows a union to “block
arbitration” of employees’ federal statutory claims “operates as a substantive waiver of their . . .
rights.” 556 U.S. at 273-74. Morris v. Temco Service Industries Inc., 09 Civ. 6194, 2010 WL
3291810 (S.D.N.Y. Aug. 12, 2010), which followed shortly after the Supreme Court’s decision in
Penn Plaza, is instructive on this issue. There, the Court denied a motion to compel arbitration
because the clause at issue amounted to a substantive waiver of rights since the agreement did not
contain an alternative procedure for the employee to pursue claims independently if the union
declined to arbitrate. Id. at *6; see also Kravar v. Triangle Servs., Inc., 06-CV-07858, 2009 WL
1392595, at *2 (S.D.N.Y. May 19, 2009) (clause unenforceable where parties did “not dispute that
an individual union member does not have an unfettered right to demand arbitration of a
discrimination claim; to do so, she must present the claim to the union, which ‘may’ demand
arbitration, presumably if it finds the claim colorable.”).
Because of cases such as Morris, employers and unions began revising their collective
bargaining agreements to include mechanisms for employees to arbitrate without the union’s
participation. See, e.g., Germosen v. ABM Indus. Corp., 13-CV-1978, 2014 WL 4211347, at *3
(S.D.N.Y. Aug. 26, 2014). Here, such a revision is reflected in the No-Discrimination Protocol.
Plaintiff argues that the inclusion of the No-Discrimination Protocol must mean that the
No-Discrimination Clause does not apply in cases where a union declines to pursue the employee’s
claims.

Instead, he argues, the No-Discrimination Protocol provides the sole applicable

7

Plaintiff does not dispute that his claims can be compelled to arbitration under the
Supreme Court’s holding in Penn Plaza.
7

contractual language. As explained further below, the Court disagrees, but it need not even reach
this issue because Plaintiff has introduced no evidence that he made any attempt to initiate the
grievance process prior to bringing this action in federal court, let alone that the Union has, in fact,
declined to arbitrate his claims. See Alfonso v. Maggies Paratransit Corp., 16-CV-0363, 2016
WL 4468187, at *5 (E.D.N.Y. Aug. 23, 2016) (collecting cases where courts have compelled
arbitration because plaintiff failed to show that union in fact declined to arbitrate claim).
The only evidence proffered by Plaintiff is a declaration from Katchen Locke, “the duly
designated representative” of the Union. (Dkt. 33 ¶ 1.) In this declaration, Locke attests that
Plaintiff “has not . . . requested that Local 32BJ arbitrate a claim of discrimination . . . [on] his
behalf,” and that “[a]s part of its agreement with [Plaintiff] . . . [it] agreed that it will not investigate
or seek to arbitrate any claim of discrimination on Plaintiff’s behalf unless [Plaintiff] so requests
and the Union’s investigation warrants arbitration”. (Id. ¶ 6.) These representations contradict
Plaintiff’s contention that the Union has outright declined to pursue his claims. The Union’s
statement leaves an opening—albeit, a narrow one—that the Union could still decide to pursue
Plaintiff’s claims in arbitration if Plaintiff “so requests.”
Based on Penn Plaza, the Court finds it premature to determine whether the CBA’s NoDiscrimination Protocol mandates arbitration, given the absence of any showing that the Union
has in fact declined to arbitrate Plaintiff’s claim. As the Supreme Court reiterated in Penn Plaza,
arbitration agreements should not be invalidated “on the basis of speculation.” 556 U.S. at 274;
see also, e.g., Green Tree, 531 U.S. at 91 (mere “risk” that a party “will be saddled with prohibitive
costs is too speculative to justify the invalidation of an arbitration agreement”); Mitsubishi Motors
Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637 n.19 (1985) (court had “no occasion to
speculate” on whether the arbitration agreement’s choice-of-forum and choice-of-law clauses

8

could operate in tandem to deprive a claimant of his right to pursue federal remedies, but “would
have little hesitation in condemning the agreement” if such a situation came to pass); JLM Indus.,
Inc. v. Stolt-Nielsen SA, 387 F.3d 163, 182 (2d Cir. 2004) (“[B]ecause [the choice of law during
arbitration proceedings] is speculative, our consideration of whether [plaintiff] will be able to
effectively vindicate its rights under the Sherman Act is premature.”).
B.

CBA Mandates Mediation and Arbitration

Even though it need not reach this issue, the Court observes that the CBA’s NoDiscrimination Clause and No-Discrimination Protocol are not contradictory and must be read
together. While the No-Discrimination Clause governs all discrimination claims, whether brought
by the Union on behalf of an individual employee or by the employee himself—and requires
arbitration of all such claims—the No-Discrimination Protocol governs the subset of those claims
where the Union declines to pursue the claim for the employee—but still requires mediation and,
if mediation fails, arbitration when an individual employee pursues the claim on his own. (CBA
Art. XVI § 30(B)(1) (indicating that the “parties” to the CBA, i.e., the Union and the RAB, 8
“initiated [the No-Discrimination Protocol] as an alternative to arbitrating their disagreement”
when the Union declined to arbitrate an individual employee’s claim).) 9 In other words, the No8

Plaintiff acknowledges that the phrase “the parties” in the CBA refers to the Union and
the RAB and does not include individual employees, like Plaintiff. (Pl.’s Opp. at ECF 17.)
9

Plaintiff makes much of the Union’s agreement with Plaintiff’s position that the NoDiscrimination Protocol permits, but does not require, arbitration. (Pl.’s Opp. at ECF 24-25.)
However, the Court is not dissuaded from its reading of the plain language of the CBA, as
discussed above, by the Union’s contrary position. It should also be noted that both the Union’s
position and the RAB’s contrary position were memorialized in the introductory portion of the NoDiscrimination Protocol itself (CBA Art. XVI § 30(B)(1), however, does not (“As background,
following the [Penn Plaza decision], the RAB and the Union have had a dispute about the meaning
of the [No-Discrimination Clause] and the grievance and arbitration clauses in the [CBA] entered
into between [the Union and the RAB]. The Union contends that the CBAs do not make provision
for arbitration of any claims that the Union does not choose to take to arbitration, including
statutory discrimination claims, and therefore, individual employees are not barred from pursuing
9

Discrimination Protocol provides a mediation and arbitration procedure for Plaintiff and his
employer as an alternative to the arbitration procedure between the Union and the RAB. 10 Absent
language to the contrary, the No-Discrimination Protocol’s alternative procedure for mediation
and arbitration has no effect on the No-Discrimination Clause’s mandate that all employment
discrimination claims “shall be subject to the grievance and arbitration procedure . . . as the sole
and exclusive remedy for violations.” (Id. §30(A).) 11 Arbitration remains the “sole and exclusive
remedy” even if Plaintiff is pursuing the alternative procedure, which includes mediation and
arbitration, as laid out in the No-Discrimination Protocol. 12

their discrimination claims in court where the Union has declined to pursue them in arbitration.
The RAB contends that the CBAs provide for arbitration of all individual claims, even where the
Union has declined to bring such claims to arbitration.”). The placement of the Union’s and RAB’s
opposing views in the preamble to the No-Discrimination Protocol demonstrates that these
statements were merely intended to explain the genesis of, and reason for, the Protocol, i.e., to cure
the CBA’s Penn Plaza defect and to resolve the parties’ dispute, set forth in the preamble, over an
employee’s right, as well as his obligation, to mediate and arbitrate discrimination claims where
the Union declines to pursue them.
10

As previously discussed, it appears that provisions like the No-Discrimination Protocol
were added to collective bargaining agreements in response to Morris, 2010 WL 3291810, and
similar decisions.
11

Plaintiff’s argument that reading the CBA to mandate arbitration would make the NoDiscrimination Protocol “useless because employees would be prohibited from utilizing them”
makes little sense. (Pl.’s Opp. at ECF 16.) Plainly, if the Union declined to bring Plaintiff’s
claims, then Plaintiff would still be able to seek recourse by utilizing the procedures outlined in
the No-Discrimination Protocol.
12

The Court flatly rejects Plaintiff’s argument that the Court is prohibited from compelling
Plaintiff to mediation because Defendants allegedly did not raise this issue in their opening
memorandum of law. As an initial matter, Defendants expressly quoted the holding in Germosen
v. ABM Indus. Corp., which found that a clause similar to the No-Discrimination Protocol
“provide[d] for mandatory mediation of discrimination claims brought by individual employees.”
(Dkt. 29-1 (“Defs.’ Mem.”) at ECF 15.) Regardless, courts have recognized that clauses similar
to the No-Discrimination Protocol mandate arbitration and mediation. See, e.g., Garcia, 2010 U.S.
Dist. LEXIS 142619, *10 (“[T]he CBA and [provision similar to the No-Discrimination Protocol]
expressly require the resolution of Plaintiff’s statutory claims through mediation and/or
10

Indeed, courts within the Second Circuit have “repeatedly concluded that under [provisions
similar to the No-Discrimination Protocol], individual employees are required to arbitrate their
claims.” Jenkins v. Collins Bldg. Servs., 10 Civ. 6305, 2013 U.S. Dist. LEXIS 186412, at *8-10
(S.D.N.Y. Oct. 16, 2013); see also Okuma v. Crotona Park West Hous. Dev. Fund Corp., 14 Civ.
239, 2014 U.S. Dist. LEXIS 143444, at *15-16 (S.D.N.Y. Sept. 29, 2014) (“[E]ven assuming that
the Union had refused to file a grievance on Plaintiff’s behalf, the Union’s refusal would not
preclude arbitration.”); Germosen, 2014 WL 4211347, at *7 (directing employee “to submit to the
mediation and arbitration procedures contemplated by the CBA and the Protocol”). 13 Plaintiff
fails to cite a single case to the contrary. 14

arbitration.”). Defendant’s motion to compel arbitration necessarily includes mediation where it
is part of the arbitration procedure, as it is here.
Moreover, the Court has considered Plaintiff’s other textual arguments against arbitration
and rejects them too because they all rely on reading the No-Discrimination Protocol in a vacuum,
which the Court declines to do.
13

See also Bouras v. Good Hope Mgmt. Corp., 11 Civ. 8708, 2012 WL 3055864, at *4
(S.D.N.Y. July 24, 2012) (“Following [Penn Plaza], the RAB and the Union entered into a
supplemental agreement [similar to the No-Discrimination Protocol] establishing procedures that
employees must follow to arbitrate claims that the Union declines to arbitrate on their behalf.”);
Pontier v. U.H.O. Mgmt. Corp., 10 Civ. 8828, 2011 WL 1346801, at *3 (S.D.N.Y. Apr. 1, 2011)
(employee required to abide by mediation and arbitration procedures); Duraku v. Tishman Speyer
Properties, Inc., 714 F. Supp. 2d 470, 474 (S.D.N.Y. 2010) (“arbitration is mandated under the
protocol when ‘the Union has declined to take an individual employee’s employment
discrimination claim under the no discrimination clause of the CBA”); Garcia, 2010 U.S. Dist.
LEXIS 142619, *10 (“[T]he CBA and [provision similar to the No-Discrimination Protocol]
expressly require the resolution of Plaintiff’s statutory claims through mediation and/or
arbitration.”)
14

Plaintiff argues that, although courts have suggested that the No-Discrimination Protocol
mandates arbitration, the same courts have not actually analyzed the language of the provision.
Even if true, Plaintiff’s position still fails based on a plain reading of the CBA. Notably, Plaintiff
has inappropriately submitted a declaration from his attorney Matthew J. Walters, in which he
attempts to distinguish the cases cited by Defendants in their opening brief. (Dkt. 34 (“Walters
Aff.”) ¶¶ 18-27.) These statements present legal argument “and as such . . . shall be disregarded.”
Novak v. Tucows, Inc., 06-CV-1909, 2007 WL 922306, at *3 (E.D.N.Y. Mar. 26, 2007), aff’d, 330
11

IV.

STAYING THE INSTANT PROCEEDINGS
Having concluded that Plaintiff’s claims are subject to mandatory mediation and

arbitration, the Court must decide whether to dismiss, as Defendants request, or stay this action
pending Plaintiff’s submission to the CBA’s grievance procedures. “The Second Circuit has urged
courts to be mindful of th[e] liberal federal policy favoring arbitration agreements when deciding
whether to dismiss an action or instead grant a stay and consider that [u]nnecessary delay of the
arbitral process through appellate review [following dismissal] is disfavored.” Pontier, 2011 WL
1346801, at *4 n.3. Moreover, the Second Circuit recently held that the FAA “requires a stay of
proceedings when all claims are referred to arbitration and a stay [is] requested.” Katz v. Cellco
P'ship, 794 F.3d 341, 343 (2d Cir. 2015). Although Defendants request complete dismissal instead
of a stay, the Court finds that the same policy reasons relied on in Katz support a stay of the case
here. Id. at 346 (noting that a stay is consistent with the FAA’s underlying policy “to move the
parties to an arbitrable dispute out of court and into arbitration as quickly and easily as possible . .
. [and to] enable[] parties to proceed to arbitration directly, unencumbered by the uncertainty and
expense of additional litigation”). The Court additionally finds a stay appropriate in light of the
possibility that Plaintiff may require further redress from this Court on his non-statutory
discrimination claims. 15

Accordingly, the Court will stay this matter pending Plaintiff’s

submission to the CBA’s mediation and arbitration procedures.

F. App’x 204 (2d Cir. 2009). Notwithstanding the inappropriateness of Mr. Walters’s declaration,
the Court has reviewed on its own the case law cited by Defendants in their opening brief.
15

As previously noted, Plaintiff’s claims for civil conspiracy and tort are still pending and
are not the subject of Defendant’s motion to compel. (FAC ¶¶ 173-183.) However, Plaintiff’s
causes of action for declaratory and injunctive relief are mooted by this decision.
12

CONCLUSION
For the reasons set forth above, Defendants’ motion to compel arbitration is granted, this
case is stayed, and the Court’s August 18, 2015 Temporary Restraining Order is lifted. If Plaintiff
wishes to proceed with his claims, he is directed to submit to the grievance procedures
contemplated by Article XVI, Section 30(A) of CBA. If the Union declines to take his claims to
arbitration notwithstanding Plaintiff’s request, then he is directed to submit to the mediation and
arbitration procedures outlined in Article XVI, Section 30(B) of the CBA. The parties are directed
to inform the Court of any resolution of the arbitration proceedings, or any other event, that would
affect the stay of this matter.

SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: September 13, 2016
Brooklyn, New York

13