Abel v. All Green Building Services of New York LLC
OPINION AND ORDER. For the foregoing reasons, All Green's motion to compel arbitration is GRANTED. All Green's motion to dismiss is DENIED. This case is STAYED pending the outcome of the arbitration. The parties are directed to notify the C ourt once the arbitration has concluded, and, if the arbitration has not concluded by March 1, 2018, to provide a status letter to the Court. The Clerk of Court is directed to close the motion at Docket Number 15. SO ORDERED. re: 15 MOTION to Dismiss or in the Alternative to Compel Mediation and Arbitration filed by All Green Building Services of New York LLC. Case stayed. (Signed by Judge J. Paul Oetken on 11/14/2017). Copies Mailed By Chambers. (rjm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OPINION AND ORDER
ALL GREEN BUILDING SERVICES
OF NEW YORK LLC,
J. PAUL OETKEN, District Judge:
This is an employment discrimination case. Plaintiff Julio Abel, proceeding pro se,
claims that Defendant All Green Building Services of New York, LLC, discriminated against
him on the basis of his religion. All Green moves to dismiss, arguing that Abel’s collective
bargaining agreement requires him to arbitrate this dispute. Alternatively, All Green seeks to
stay the case pending arbitration proceedings. For the reasons that follow, the motion to compel
arbitration is granted, the motion to dismiss is denied, and the case is stayed.
All Green is a building maintenance provider. Abel worked for All Green as a cleaner.
Abel’s employment was terminated in 2016. Abel alleges that All Green discriminated against
him on the basis of his religion, in violation of Title VII of the Civil Rights Act of 1964 and New
York City law. 1
During his employment, Abel was a member of Local 32BJ Service Employees
International Union. (Dkt. No. 17 at 2.) That union and the Realty Advisory Board on Labor
There are two versions of the complaint: The original complaint asserts a claim
solely under Title VII, while the amended complaint asserts a claim solely under the New York
City Human Rights Law. (See Dkt. Nos. 2, 8.) Given that this is a pro se case, the Court
interprets the amended complaint—the operative complaint for this motion—as asserting claims
under both federal and municipal law.
Relations, Inc. (“RAB”), a multi-employer bargaining group of which All Green was a member,
were parties to a collective bargaining agreement (“CBA”). (Id. at 3–4.)
The CBA provides, in relevant part, that:
There shall be no discrimination against any present or future
employee by reason of race, creed, color, age, disability, national
origin, sex, 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 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 the sole and exclusive remedy for violations.
Arbitrators shall apply appropriate law in rendering decisions based
upon claims of discrimination.
Id. at 4.
All Green argues that this provision requires Abel to arbitrate his claims rather than sue
in federal court. All Green therefore seeks dismissal of this case, or, alternatively, that the case
be stayed so that the parties can arbitrate. In a letter to the Court, Abel asserts that he already
tried to go through the union’s grievance procedures, including settlement discussions, but that
he did not find the union to be responsive to his needs. (Dkt. No. 18.)
When deciding a motion to compel arbitration, a reviewing court’s evaluation is limited
to: “i) whether a valid agreement or obligation to arbitrate exists, and ii) whether one party to the
agreement has failed, neglected or refused to arbitrate.” LAIF X SPRL v. Axtel, S.A. de C.V., 390
F.3d 194, 198 (2d Cir. 2004). Where these requirements are met, the court must “[direct] the
parties to proceed to arbitration in accordance with the terms of the agreement.” 9 U.S.C. § 4.
Courts must also afford pro se plaintiffs “special solicitude” before granting motions to
dismiss. Ruotolo v. I.R.S., 28 F.3d 6, 8 (2d Cir. 1994). “‘A document filed pro se is to be
liberally construed,’ and a ‘pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.’” Erickson v. Pardus, 551 U.S. 89,
94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
In deciding this case, the Court is guided by two binding precedents: the United States
Supreme Court’s opinion in 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009), and the Second
Circuit’s opinion in Katz v. Cellco Partnership, 794 F.3d 341 (2d Cir. 2015).
In Pyett, the Supreme Court evaluated a similar CBA provision—involving the same
union and the same employers’ bargaining association—in the context of a claim under the Age
Discrimination in Employment Act (“ADEA”). The Court 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.” Pyett, 556 U.S. at 274. The Court explained:
The [National Labor Relations Act] provided the Union and the
RAB with statutory authority to collectively bargain for arbitration
of workplace discrimination claims, and Congress did not
terminate that authority with respect to federal age-discrimination
claims in the ADEA. Accordingly, there is no legal basis for the
Court to strike down the arbitration clause in this CBA, which was
freely negotiated by the Union and the RAB, and which clearly and
unmistakably requires respondents to arbitrate the agediscrimination claims at issue in this appeal. Congress has chosen
to allow arbitration of ADEA claims. The Judiciary must respect
Id. at 260.
Though Pyett addressed claims under the ADEA, courts in this circuit have applied its
reasoning to claims arising under Title VII and the New York City Human Rights Law. See
Hamzaraj v. ABM Janitorial Ne. Inc., No. 15 Civ. 2030, 2016 WL 3571387, at *4 (S.D.N.Y.
June 27, 2016) (collecting cases). Abel makes no argument countering the applicability of the
arbitration provision, and the Court sees none in the record. Thus, even with the solicitude
afforded to pro se pleadings, this Court is bound by the Pyett precedent.
The second guiding case—Katz—instructs the Court what to do once it recognizes that
arbitration is in order. In Katz, the Second Circuit held that “the text, structure, and underlying
policy of the [Federal Arbitration Act] mandate a stay of proceedings when all of the claims in
an action have been referred to arbitration and a stay requested.” 794 F.3d at 347. The Second
Circuit explained that a mandatory 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.’” Id. at 346 (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S.
1, 22 (1983)); see also Hamzaraj, 2016 WL 3571387, at *5 (collecting cases).
Accordingly, the Court concludes that Abel is indeed required to arbitrate, but that
outright dismissal is not warranted. Instead, this case will be stayed to allow the parties to
arbitrate Abel’s claims.
For the foregoing reasons, All Green’s motion to compel arbitration is GRANTED. All
Green’s motion to dismiss is DENIED. This case is STAYED pending the outcome of the
arbitration. The parties are directed to notify the Court once the arbitration has concluded, and,
if the arbitration has not concluded by March 1, 2018, to provide a status letter to the Court.
The Clerk of Court is directed to close the motion at Docket Number 15.
Dated: November 14, 2017
New York, New York
J. PAUL OETKEN
United States District Judge
COPY MAILED TO PRO SE PARTIES BY CHAMBERS
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