Arbitration of Statutory Discrimination Claims Not Compelled; Constructive Discharge Claim Stated Against Saks; Retaliation and Race Discrimination Claims Dismissed

In Bright-Asante v. Saks & Co., Inc., No. 15 CIV. 5876 (ER), 2017 WL 977587 (S.D.N.Y. Mar. 9, 2017) – an employment discrimination case arising from the suspension of an African American sales associate upon suspicion of theft – the court held, inter alia, that: (1) plaintiff’s statutory discrimination claims were not subject to mandatory arbitration under the Collective Bargaining Agreement (CBA) between plaintiff’s union and his employer; (2) plaintiff sufficiently stated a claim for constructive discharge; and (3) plaintiff did not state a claim for retaliation under the New York Labor Law.


As to the arbitration issue, the court explained:

[W]hen a party seeks to compel arbitration of federal statutory claims, courts must first consider whether Congress intended those claims to be nonarbitrable. Where statutory claims are susceptible to arbitration, the next inquiry is whether the parties intended to arbitrate such individual claims, as indicated by the terms of their agreement. In a collective bargaining agreement, the intention by the parties to arbitrate statutory claims must be “clear and unmistakable.” In other words, the CBA must either (1) include an arbitration clause whereby the employee agrees to submit all federal and state causes of action arising out of his employment to arbitration, or (2) list specific statutes that are subject to a general agreement to arbitrate disputes.

Here, the CBA failed to meet this standard. Among other things, the “CBA’s grievance procedures are broadly stated and do not include any mention of federal or state claims or list any particular statutes subject to the arbitration provision,” and “the antidiscrimination provision, itself, does not state that arbitration is required to resolve discrimination disputes.”

Constructive Discharge

As to plaintiff’s constructive discharge claim, the court explained:

Here, Plaintiff has pled sufficient facts to support his constructive discharge claim. Plaintiff does more than merely allege that he was demoted or that his salary and responsibilities were significantly reduced. He claims his indefinite suspension without pay for approximately ten months beginning on September 9, 2014, with no indication that he would ever be called back, was tantamount to termination. Am. Compl. ¶¶ 17, 19. Even after the criminal charges were dropped against him in March 2015, he remained indefinitely suspended for approximately four months and was forced to find another job. There is no question that a reasonable employee in Plaintiff’s shoes would have felt compelled to seek other employment. See e.g., Timothy v. Our Lady of Mercy Med. Ctr., No. 03 Civ. 3556 (RCC), 2004 WL 503760, at *7 (S.D.N.Y. Mar. 12, 2004) (finding that plaintiff had sufficiently plead her constructive discharge claim by alleging that she had been passed over for positions, placed in inferior positions below her skill level, stripped of substantive responsibilities, removed from her office and “shunted to several inadequate work locations”); see generally Suders, 542 U.S. at 134 (holding constructive discharge may be shown “if the plaintiff quits in reasonable response to an employer-sanctioned adverse action officially changing her employment status or situation, for example, a humiliating demotion, extreme cut in pay, or transfer to a position in which she would face unbearable working conditions”).Moreover, Plaintiff alleges that a white saleswoman, who similarly sold merchandise to the same customer, was never investigated or suspended. The Court finds that these allegations are sufficient to survive a motion to dismiss. Accordingly, Saks’ motion to dismiss Plaintiff’s constructive discharge claim is denied.


Finally, plaintiff asserted that defendant retaliated against him in violation of New York Labor Law sec. 215 by opposing his application for unemployment benefits. The court rejected this claim, reasoning:

Here, Plaintiff has not alleged sufficient facts to allow the Court to infer that Saks retaliated against him by opposing his unemployment benefits application. Plaintiff claims that Saks opposed his unemployment benefits application on the ground that he had committed a crime against Saks. Am. Compl. ¶ 87. In conclusory fashion, he assigns a retaliatory motive to Saks’ opposition because he maintains that he did not commit a crime. However, Saks’ filing of an opposition explaining its reasons for suspending Plaintiff—without more—is not retaliatory.

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