Lawrence v. Sol G. Atlas Realty Co., Inc. et al

Filing 25

ORDER ADOPTING REPORT AND RECOMMENDATIONS: Plaintiff's objections to the R & R are denied and the Court adopts Judge Brown's R & R, grants the motion to compel arbitration, and dismisses this case. See attached Memorandum & Order for details. Ordered by Judge Denis R. Hurley on 8/27/2015. (Gapinski, Michele)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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WINSTON LAWRENCE,
Plaintiff,
-against-

MEMORANDUM & ORDER
14-CV-3616 (DRH)(GRB)

SOL G. ATLAS REALTY CO., INC.,
PETER FIDOS, in his official and individual
capacities, and SANDRA ATLAS BASS, in
her official and individual capacities,
Defendant.
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APPEARANCES:
GOODSTADT LAW GROUP, PLLC
Attorneys for Plaintiff
One Old Country Road, Suite 347
Carle Place, NY 11514
By: Andrew S. Goodstadt, Esq.
JASPAN SCHLESINGER LLP
Attorneys for Defendants
300 Garden City Plaza
Garden City, NY 11530
By:
Stanley A. Camhi, Esq.
Jessica M. Baquet, Esq.

HURLEY, Senior District Judge:
Plaintiff Winston Lawrence (“plaintiff” or “Lawrence”) commenced this
employment discrimination action against defendants Sol G. Atlas Realty Co., Inc.
(“Atlas”), Peter Fidos (“Fidos”) and Sandra Atlas Bass (“Bass”) (collectively
“defendants”) alleging discrimination and retaliation on the basis of race and
national origin in violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. §§ 2000e et seq. (“Title VII”), the Civil Rights Act of 1866, as amended, 42
U.S.C. § 1981 (“Section 1981") and the New York State Human Rights Law, N.Y.
Exec. Law §§ 290 et seq. (“NYSHRL”); also asserted are claims under the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 215(a)(3) and the New York Labor Law
(“NYLL”). Thereafter, defendants moved to compel arbitration pursuant to the
Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. and to dismiss the complaint pursuant
to Federal Rules of Civil Procedure 12(b)(1) or 12(b)(6), which motion was referred
to Magistrate Judge Gary R. Brown for a Report and Recommendation (“R & R”).
On June 16, 2015, Judge Brown issued a R & R recommending that the motion to
compel arbitration be granted and that the case be dismissed. Presently before the
Court are plaintiff’s objections to that R & R. For the reasons set forth below,
Lawrence’s objections are denied and Judge Brown’s R & R is adopted.
BACKGROUND
The following facts are taken from the Complaint and considered true for
purposes of this motion. Additional facts are taken from the collective bargaining
agreement which governs plaintiff’s employment with Atlas.
Atlas is a real estate and property management company that specializes in
the rental and management of residential apartments. Compl. ¶ 15. Plaintiff, a
West Indian/Black, has been employed by Atlas since April 1994 and at the time of
the events at issue was employed as a porter and responsible for the overall

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maintenance and cleanliness of the interior and exterior of his assigned buildings
and grounds in Atlas’s Great Neck complex. Id. ¶¶ 16-18.
In July 2008, Fidos, a Caucasian/Polish-American was hired as
superintendent of the Great Neck complex and became plaintiff’s supervisor. Id. ¶
21. Fidos engaged in a pattern of discriminatory treatment towards plaintiff and
other West Indian and or Black porters. Id. ¶ 23. Among other things, Fidos hired
almost exclusively Causcasian and/or Polish American employees, id.; made
disparaging remarks about Blacks and West Indians, id. ¶¶ 24, 28; and subjected
plaintiff and the other Black and/or West Indian porters to unequal treatment,
scrutiny, discipline and harassment, id. ¶¶ 25-28, 31-38, 44-47. When plaintiff
complained to Bass, Atlas’ Chief Executive officer, she took no action. Id. ¶¶ 9, 49.
In fact, in response to plaintiff’s complaints to Bass and his EEOC complaint, Fidos
retaliated by increasing the frequency of baseless discipline and write-ups,
suspending plaintiff and docking his pay, and setting the time clock ahead to make
it appear plaintiff was late. Id. ¶¶ 52-59.
Fidos also retaliated against plaintiff for participating in a Department of
Labor’s investigation of Atlas’ failure to pay its employees for overtime by
ostracizing plaintiff, threatening him, and subjecting him to increased scrutiny,
discipline and write-ups. Id. ¶¶ 64-71.
Plaintiff commenced the present action after the EEOC determined there was
probable cause to believe Atlas discriminated against him on account of his race

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and issued a right to sue letter. Id. ¶¶11-12.
Plaintiff employment as a porter was governed by a collective bargaining
agreement (“CBA”) between the Service Employees International Union Local 32
BJ, of which he was a member, and Atlas. See Baquet Declar., Ex. A. The CBA
contains provisions concerning unions members’ terms and conditions of
employment including wages and hours as well as a mandatory arbitration
provision. Id. Ex. A Art. IX & V. The arbitration provision provides that any
disputes or grievances regarding these matters “shall be submitted to the Office of
the Contract Arbitrator” and that “[t]he procedures herein with respect to matters
over which a Contract Arbitrator has jurisdiction shall be the sole and exclusive
method for the determination of all such issues.” Id., Ex. A, Art. V. The CBA also
contains a “No Discrimination” clause, which cross references the mandatory
arbitration provision and states as follows:
NO DISCRIMINATION - There shall be no
discrimination against any present or future employee by
reason of race, creed, color, age, disability of any
individual in accordance with applicable law, national
origin, sex, sexual orientation, union membership, or any
characteristic protected by law. Any dispute under this
provision shall be subject to the grievance and arbitration
procedure (Article V).
Plaintiff did not attempt to resolve his claims through the CBA’s grievance and
arbitration procedure.

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DISCUSSION
I.

Legal Standard
A.

Review of Report and Recommendation

Rule 72(b)(3) provides that “a district judge must determine de novo any part
of [a] magistrate judge's disposition that has been properly objected to.” Fed. R. Civ.
P. 72(b)(3); see also 28 U .S.C. § 636(b)(1)(B). The Court may “accept, reject, or
modify the recommended disposition; receive further evidence; or return the matter
to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3).
B.

Motion to Dismiss

In Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556
U.S. 662 (2009) the Supreme Court clarified the pleading standard applicable in
evaluating a motion to dismiss under rule 12(b)(6).
The Court in Twonbly disavowed the well-known statement in Conley v.
Gibson, 355 U.S. 41, 45-46 (1957) that "a complaint should not be dismissed for
failure to state a claim unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to relief." 550 U.S. at
562. Instead, to survive a motion to dismiss, a plaintiff must allege "only enough
facts to state a claim to relief that is plausible on its face." Id. at 570.
While a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff's obligation
to provide the grounds of his entitlement to relief requires more
than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do. Factual allegations
must be enough to raise a right to relief above the speculative
level, on the assumption that all the allegations in the complaint
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are true (even if doubtful in fact).
Id. at 555 (citations and internal quotation marks omitted).
In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court provided further
guidance, setting forth a two-pronged approach for courts deciding a motion to
dismiss. First, a court should "begin by identifying pleadings that, because they are
no more than conclusions, are not entitled to the assumption of truth." Id. at 679.
"While legal conclusions can provide the framework of a complaint, they must be
supported by factual allegations." Id. Thus, "[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice." Id. at
678 (citing Twombly, 550 U.S. at 555)).
Second, "[w]hen there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief." Id. at 679. The Court defined plausibility as follows:
A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged. The
plausibility standard is not akin to a "probability requirement,"
but it asks for more than a sheer possibility that a defendant
has acted unlawfully. Where a complaint pleads facts that are
"merely consistent with" a defendant's liability, it "stops short of
the line between possibility and plausibility of 'entitlement to
relief.'"
Id. at 678 (quoting Twombly, 550 U.S. at 556-57) (internal citations omitted). In
determining a motion to dismiss, a court's "review is limited to the facts as asserted
within the four corners of the complaint, the documents attached to the complaint

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as exhibits, and any documents incorporated in the complaint by reference."
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007).
II.

The CBA Clearly and Unmistakably
Requires Arbitration of Plaintiff’s Claims
When a party seeks to compel arbitration of a federal statutory claim, a

court must determine “whether Congress intended those claims to be
nonarbitrable” and if the claims are susceptible to arbitration, whether the parties
intended to arbitrate such claims, as indicated by the terms of their agreement to
arbitrate, in this case the CBA. See JLM Industries, Inc. v. Stolt-Nielsen SA, 387
F.3d 163, 169 (2d Cir. 2004).
It is well established that Title VII, § 1981, and FLSA claims, as well as New
York Human Rights and Labor Law claims, are susceptible to arbitration and
plaintiff does not suggest otherwise. See, e.g., Washington v. William Morris
Endeavor Entm’t LLC, 2011 WL 3251504, at *10 (S.D.N.Y. July 20, 2011) (Title VII
and § 1981 claims subject to arbitration); Reynolds v. De Silva, 2010 WL 743510, at
*5 (S.D.N.Y. Feb. 24, 2010) (FLSA and New York Labor Law claims arbitrable);
Shipkevich v. Staten Island Univ. Hosp., 2009 WL 1706590, *1 (E.D.N.Y. June 16,
2009) (Title VII claims arbitrable); Rodriguez v. Four Seasons Hotels, Ltd, 2009 WL
2001328 (S.D.N.Y. July 10, 2009) (claims under New York State Human Rights
Law arbitrable);
Having determined that the statutory claims are susceptible to arbitration,
the next inquiry is whether the parties intended to arbitrate such claims. It is now
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established that with respect to arbitration clauses in collective bargaining
agreements there must be a “clear and unmistakeable” intent to arbitrate statutory
claims and waive the employees’ right to a judicial forum for determine of such
claims. 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 274 (2009); see Wright v.
Universal Maritime Serv. Corp., 525 U.S. 70, (1998) (rejecting any presumption of
the arbitrability of federal statutory claims pursuant to a CBA and requiring that
any such waiver of a judicial forum in favor of arbitration must be “clear and
unmistakable”). If the CBA’s waiver is clear and unmistakable, the arbitration
provision is enforceable as a matter of federal law.” Pyett, 556 U.S. at 274.
In Wright, the Supreme Court determined that the waiver of a federal forum
for discrimination claims in a collective bargaining agreement was not clear and
unmistakable and therefore the plaintiff could proceed to litigate his federal claims
in court despite the CBA’s broad arbitration clause. The employer in Wright relied
on several provisions in the agreement. One section provided for arbitration for
“[m]atters under dispute,” and another stated that the “Agreement is intended to
cover all matters affecting wages, hours and other terms of employment.” A third
section provided that “[i]t is the intention and purpose of all parties hereto that no
provision or part of this agreement shall be violative of any Federal or State law.”
525 U.S. at 80-81. Without addressing the issue of enforceability, the Court stated
that as a condition precedent to enforceability, CBAs that purport to waive an
individual’s right to bring discrimination claims in federal courts must be “clear and
unmistakable.” Id. at 80. Addressing first the reliance on the “cover all matters”
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provision, the Court observed that “even if this could, in isolation, be considered a
clear and unmistakable incorporation of employment discrimination laws (which is
doubtful), it is surely deprived of that effect by the provision later in the same
paragraph that ‘[a]nything not contained in this Agreement shall not be construed
as being part of this Agreement.’ ” Id. at 81. The Court also rejected the argument
that the clear and unmistakable requirement was met because the clause providing
for no provision of the CBA to be violative of any law required the arbitrator to
apply legal definitions derived from the ADA in determining whether the plaintiff
was qualified for employment. According to the Court, “that is not the same as
making compliance with the ADA a contractual commitment that would be subject
to the arbitration clause.” Id.
In Rogers v. New York University, 220 F.3d 73 (2d Cir. 2000), abrogated on
other grounds by Pyett, 129 S. Ct. at 1474, the Second Circuit addressed Wright’s
clear and unmistakeable standard. Therein, an employer moved to compel
arbitration of an employee’s claims for violations of the Americans with Disabilities
Act, the Family Medical Leave Act and New York State and City Human Rights
Laws, relying on an arbitration provision in a union-negotiated CBA. That CBA
contained a “no discrimination” provision which provided “[t]here shall be no
discrimination as defined by applicable Federal, New York State and New York
City laws, against any present or future employee by reason of . . . physical or
mental disability . . . .” Id at 74. There was also a provision that “employees are
entitled to all provisions of the Family and Medical Leave Act of 1993 that are not
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specifically provided for in this agreement.” Id. “A separate grievance and
arbitration clause in the CBA provide[d] in substance that disputes arising under
the agreement shall be arbitrated.” Id.
The Rogers Court held the motion to compel arbitration was properly denied
under Wright’s clear and unmistakable standard and stated that a waiver will meet
that standard if either of two conditions is met. “First, a waiver is sufficiently
explicit if the arbitration clause contains a provision whereby employees specifically
agree to submit all federal causes of action arising out of their employment to
arbitration.” Id. at 76. “Second, a waiver may be sufficiently clear and
unmistakable when the CBA contains an explicit incorporation of the statutory
anti-discrimination requirements in addition to a broad and general arbitration
clause.” Id. In the latter case, “identifying the antidiscrimination statutes by name
or citation is required.” Id. Measured against these two standards, the Rogers
court found there was no clear and unmistakable waiver. The first standard was
not met because while there was a no discrimination clause, there was only a broad,
general arbitration clause encompassing disputes concerning the interpretation,
application or violation of the CBA. The second standard was not met because the
CBA did not make compliance with the FMLA a contractual commitment.
Defendants maintain that the Rogers Court’s recitation of how the clear and
unmistakable standard can be met is dicta because prior to addressing whether the
arbitration clause was clear and unmistakeable, it held that the arbitration

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provisions contained in a union-negotiated CBA by which employees purport to
waive their right to a federal forum with respect to statutory claims are not
enforceable.1 However, courts both within and without this circuit have continued
to determine whether a waiver is clear and unmistakably under the two standards
enunciated in Rogers, see, e.g. Gjoni v. Orsid Realty Corp., 2015 WL 4557037, *3
(S.D.N.Y. July 22, 2015); Isaacs v. Cent. Parking Sys. of New York Inc., 2012 WL
957494, *3 (E.D.N.Y. 2012); Ibarra v. United Parcel Serv., 695 F.3d 354, 359-60
(5th Cir. 2012); Montgomery v. Compass Airlines LLC, – F.3d –, 2015 WL 1522248;
Wawock v. CSI Elec. Contractors, Inc., 2014 WL 5420900 (C.D.Cal. Oct. 21, 2014)
and so will this Court.
Here, the CBA prohibits discrimination “in accordance with applicable law”
on the basis of any characteristic protected by law and explicitly states that
disputes under the discrimination provision are subject to the grievance and
arbitration procedure. As the CBA does not specifically identify federal statutes
either by name or citation, Rogers’ second standard is not met. Therefore, the
question is whether the instant CBA complies with the first standard, i.e. whether
employees covered by the CBA specifically agree to submit all federal causes of
action arising out of their employment to arbitration.

Both here and in Rogers,

there is a section in the CBA providing for no discrimination in accordance with

1

This portion of the Rogers decision was abrogated by Pyett. A noted earlier, the Pyett
Court held that union-negotiated waivers of employees’ statutory right to a judicial forum for
claims of employment discrimination are enforceable. 556 U.S. at 274.
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“applicable law.” What distinguishes this case from Rogers, is that here there is not
simply a broad separate arbitration clause providing that disputes under the CBA
shall be arbitrated. Rather, the no discrimination clause in this CBA specifies that
disputes under the no discrimination clause are subject to arbitration in accordance
with the CBA’s arbitration provision, pursuant to which arbitration is the exclusive
method for determination of disputes. Accordingly, the CBA meets the first Rogers
standard.
Contrary to plaintiff’s assertion, that the CBA does not specifically
“incorporate the statutory requirements by name or citation” is not fatal. [Pl.’s
Mem. in supp. of Objections at 12.] As noted above, such incorporation is required
only to meet the second Rogers standard. See Rogers, 220 F.3d 73 (noting that under
the explicit incorporation standard courts agree that identifying the
antidiscrimination statutes by name or citation is required). Also, that the
language in the instant case differs from the language sanctioned in Pyett does not
mandate the conclusion that the instant waiver is less than clear and
unmistakable. Indeed, none of the cases within this circuit relied on by the parties either granting or denying a motion to compel arbitration on the basis of a CBA contain the same language as this case.
In sum, the Court finds that Judge Brown correctly determined that “the
language of the CBA demonstrates a clear intent by the parties to arbitrate any
wage and hour disputes as well as any discrimination claims.” R & R at 8.
Having considered all of plaintiff’s arguments de novo, the Court adopts Judge
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Brown’s Report and Recommendation.
The Court does note, however, that after the issuance of the R & R, the
Second Circuit decided Katz v. Cellco Partnership, – F.3d – , 2015 WL 4528658 (2d
Cir. July 28, 2015). In Katz the Circuit discussed whether a case should be stayed
or dismissed when all claims have been referred to arbitration. Finding that a
mandatory stay comports with the Federal Arbitration Act’s statutory scheme and
pro-arbitration policy, the Court concluded that “the text, structure, and underlying
policy of the FAA mandate a stay of proceedings when all claims in an action have
been referred to arbitration and a stay requested.” Id. at *6. Here, neither party
has requested a stay and, accordingly, the Court shall dismiss the action. In the
event either side wishes the Court to revisit this issue, they may do so by letter
application filed within ten (10) days of the date hereof.
Defendants’ motion to compel arbitration is granted.
CONCLUSION
Plaintiff’s objections to the R & R are denied and the Court adopts Judge
Brown’s R & R, grants the motion to compel arbitration, and dismisses this case.
SO ORDERED.
Dated: Central Islip, New York
August 27, 2015

s/ Denis R. Hurley
Denis R. Hurley
United States District Judge

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