In Rodriguez v. Newmark & Co. Real Estate, Inc., No. 158325/2019, 2021 WL 1040524 (N.Y. Sup Ct, New York County Mar. 18, 2021), the court granted defendants’ motions to dismiss plaintiff’s complaint, or in the alternative, stay this action to compel arbitration of plaintiff’s gender discrimination, sexual harassment, retaliation, and aiding-and-abetting-discrimination claims.
The crux of this case was “whether the collective bargaining agreement (‘CBA’) in effect between plaintiff’s union [32BJ] and his employer requires mandatory arbitration of plaintiff’s discrimination claims even though his union declined to arbitrate them, or whether this Court is a permissible forum.”
Here, the parties’ CBA contained a provision, known as the “No Discrimination Protocol”, which stated:
(B) No-Discrimination Protocol (3)(a) The undertakings described here with respect to arbitration apply to those circumstances in which the Union has declined to arbitrate an employee an employee’s individual employment discrimination claim under the No Discrimination Clause of the CBA, including statutory claims (i.e., a Covered Claim), to arbitration. The arbitration forum described here will be available to employers and employees, both those who are represented by counsel and those who are not represented by counsel.
After citing case law examples where courts “determined that the CBA and No-Discrimination protocol require individual employees to arbitrate their discrimination claims after the union decides not to advance a claim on their behalf, instead of seeking judicial intervention,” the court concluded:
[T]he CBA’s clear and unambiguous language states that all discrimination claims are subject to the grievance and arbitration clauses of the CBA as the “sole and exclusive remedy for violations.” Moreover, plaintiff’s claims here for sexual harassment and hostile work environment are intended claims within the intended scope of the provision. Further, to the extent the union declined to pursue his discrimination claim, the No-Discrimination Protocol clearly provided the employee the power to pursue arbitration on his own, without the union. Additionally, as found in all the cases dating back to [the U.S. Supreme Court’s decision in 14 Penn Plaza LLC v Pyett, 556 U.S. 247 (2009)], the CBA unmistakably waives the plaintiff’s right to pursue his statutory claims in court by making arbitration the “sole and exclusive remedy” and there is no issue as to Congress’s intent that these statutory discrimination claims are arbitrable. Thus, plaintiff was required to assert his discrimination claims in arbitration if he wished to further assert them. Furthermore, to the extent that the plaintiff sought to resolve the arbitrability issue of the Resolved Question, the parties unmistakably provide in the “preface” that the Resolved Question should be determined at arbitration instead of by the court.
The court thus granted defendants’ motions “solely to the extent that this action shall be stayed pending arbitration.”