Begonja v. Vornado Realty Trust

• Citation: 159 F.Supp.3d 402
• Decision Date: 29 January 2016
• Docket Number: 15 Civ. 4665 (PAE)
• Parties: Jadranka Begonja, Plaintiff, v. Vornado Realty Trust, Broadway 280 Park Fee LLC, Building Maintenance Service LLC, and Kreshnik Rama, Defendants.
• Court: U.S. District Court — Southern District of New York

159 F.Supp.3d 402

Jadranka Begonja, Plaintiff,

v.Vornado Realty Trust, Broadway 280 Park Fee LLC, Building Maintenance Service LLC, and Kreshnik Rama, Defendants.

15 Civ. 4665 (PAE)

United States District Court, S.D. New York.

Signed January 29, 2016

Evan Edward Richards, Marshall Benjamin Bellovin, Ballon, Stoll, Bader and Nadler, New York, NY, for Plaintiff.

Jerrold Foster Goldberg, Greenberg Traurig, LLP, New York, NY, for Defendants.

OPINION & ORDER

PAUL A. ENGELMAYER

, District Judge:

In this employment discrimination action, Jadranka Begonja brings claims against Vornado Realty Trust (“Vornado”), Broadway 280 Park Fee LLC (“280 Park”), Building Maintenance Service LLC (“BMS”) (collectively, the “Corporate Defendants”), and Kreshnik Rama. Begonja alleges that she was subjected to discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. ,

the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 290 et seq., and the New York City Human Rights Law (“NYCHRL”), N.Y. City Admin. Code § 8-101 et seq.

Defendants now move to dismiss the complaint pursuant to a mandatory arbitration clause in a collective bargaining agreement; defendants also seek to recover attorneys' fees. For the following reasons, the Court stays this action, refers all claims brought in the Complaint to arbitration, and denies the request for fees.

I. Background¹

A. The Parties

Vornado is a foreign business corporation organized under Maryland law with its principal place of business in New York, New York. Compl. ¶¶ 4, 6. 280 Park, in which Vornado has an ownership interest, is a foreign limited liability company organized under Delaware law that owns an office building at 280 Park Avenue, New York, New York.² Id. ¶¶ 12–14, 17. BMS is a foreign limited liability company organized under Delaware law with its principal place of business in New York, New York. Id. ¶¶ 8, 10. 280 Park and BMS are affiliates of Vornado. Dkt. 21 (“Goldberg Aff.”), ¶ 4. At relevant times, Rama was an employee of 280 Park,³ id. ¶ 4, with supervisory and decision-making authority, including the power to hire and fire employees such as Begonja, Compl. ¶ 22.

Begonja, age 58, is of Croatian origin. Id. ¶ 2. She was employed as an office cleaner by 280 Park in New York City, Goldberg Aff. ¶ 4, beginning on or about June 2, 2011 and until her indefinite suspension on or about September 24, 2014, Compl. ¶¶ 31–32. Begonja is or was a member of the Service Employees International Union, Local 32BJ (the “Union”). Goldberg Aff. ¶ 6 (“is”); Dkt. 28 (“Pl. Br.”), at 3 (“was”).

B. The Collective Bargaining Agreement

At all times during Begonja's employment, she and the Corporate Defendants were bound by a collective bargaining agreement known as the Commercial Building Agreement (the “CBA”), formed between the Union and the Realty Advisory Board on Labor Relations (“RAB”), a multiemployer association of which defendants are members. Goldberg Aff. ¶ 6; Dkt. 22 (“Def. Br.”), at 2; Pl. Br. 3.⁴

In pertinent part, the CBA provides:

There shall be no discrimination against any present or future employee by reason of race, creed, color, age, disability, national origin, sex, union membership, sexual orientation, or any characteristic protected by law, including, but not limited to, claims made pursuant to [Title VII], ... [the NYSHRL], [the NYCHRL], ... or any other similar laws, rules or regulations.

CBA Art. XXI § 24(A). As to the resolution of discrimination claims, the CBA states:

All [discrimination] claims shall be subject to the grievance and arbitration procedure [set forth in Articles VII and VIII of the CBA] as the sole and exclusive remedy for violations. Arbitrators shall apply appropriate law in rendering decisions based upon claims of discrimination.

Id. The CBA provides for a grievance procedure “[t]o try to decide without arbitration any issues between the parties which under this agreement they must submit to the Arbitrator.” Id. Art. VII § 2. The CBA contemplates that employees will often be represented by the Union. See id. Art. VII § 3. Where a grievance is not settled, the CBA provides for arbitration:

A Contract Arbitrator shall have the power to decide all differences arising between the parties as to interpretation, application or performance of any part of this Agreement, and such other issues as are expressly required to be arbitrated before him/her ....

In the event that the Union appears at an arbitration without the grievant, the Arbitrator shall conduct the hearing, provided it is not adjourned. ...

The procedure 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, and the Arbitrator shall have the power to award appropriate remedies, the award being final and binding upon the parties and the employee(s) or Employer(s) involved. Nothing herein shall be construed to forbid either party from resorting to court for relief from, or to enforce rights under, any award.

Id. Art. VIII §§ 1–3.

The Union and the RAB dispute whether, under the CBA, an individual employee who has sought but been denied Union support for her claim is required to arbitrate rather than pursue her claims in court. See id. Art. XXI § 24(B)(1). The CBA leaves that question—which it describes as the “reserved question”—for arbitration, providing that either the Union or RAB may initiate arbitration to resolve it. Id. The CBA also sets forth procedures for arbitration of claims which employees bring without Union representation. See id. § 24(B)(3).

C. Factual Background

During her employment with 280 Park, Begonja was the sole Croatian employee. Compl. ¶ 33. She alleges that she was subject to adverse treatment by supervisors, see generally id. ¶¶ 35–61, including by ethnic Albanian supervisors such as Rama, id. ¶ 39. She asserts that non-Croatian employees were not subjected to similar treatment, id. ¶ 68, and that at times she was denied opportunities given to ethnic Albanian coworkers, id. ¶¶ 48, 55.

Begonja claims that she filed grievances regarding incidents of alleged mistreatment, id. ¶¶ 53, 55, 62, and that, on or about July 22, 2013, she filed an Equal Employment Opportunity Commission (“EEOC”) discrimination charge against Vornado and BMS, id. ¶ 24. On or about September 24, 2014, she was indefinitely suspended for the alleged theft of a Windex bottle—an accusation Begonja denies and claims was a pretextual cover for discrimination against her based on her national origin, and an act of retaliation in response to her earlier EEOC filing. Id. ¶¶ 64–67. Both Begonja and defendants treat the indefinite suspension as, effectively, a termination of her employment. See id. ¶ 66; Def. Br. 1–2.

On November 11, 2014, Begonja again filed an EEOC discrimination charge against Vornado and BMS, along with a separate charge against 280 Park. Compl. ¶ 24. She claimed discrimination on the basis of her national origin, and retaliation in response to her complaints about such discrimination. Id. On March 19, 2015, the EEOC mailed Begonja right-to-sue letters corresponding to each of the three EEOC filings.⁵ Compl., Ex. 1.

Concurrently, Begonja has been engaged in an arbitration process to resolve a claim that her termination violated the “just cause” provision of the CBA, although she has not also asserted a discrimination claim in that forum. Goldberg Aff. ¶ 7; see also id. Ex. C.

D. Procedural History

On June 16, 2015, Begonja filed the Complaint. Dkt. 1. Begonja brings the following causes of action: (1) discrimination based on her national origin, in violation of Title VII (as against the Corporate Defendants) and the NYSHRL and the NYCHRL (as against all defendants), Compl. ¶¶ 71–88; and (2) retaliation in response to her complaints and EEOC filings, in violation of Title VII (as against the Corporate Defendants) and the NYSHRL and the NYCHRL (as against all defendants), id. ¶¶ 89–105. Begonja seeks compensatory damages as well as punitive damages, costs, and attorneys' fees. Begonja's Complaint is silent as to whether she at any point has sought or been denied Union support for her claim.

In a letter dated June 17, 2015, defendants asked Begonja to withdraw this lawsuit, on the ground that she was required under the CBA to pursue her claims through arbitration. See Goldberg Aff., Ex. D. In an e-mail exchange with Begonja's counsel on August 11, 2015, defendants' counsel offered “to waive any [statute of limitations] defense in the arbitration proceeding” in exchange for a voluntary dismissal. Dkt. 30, Ex. A. However, Begonja did not file for voluntary dismissal.

On September 4, 2015, defendants moved to dismiss the Complaint and for attorneys' fees, Dkt. 20, and submitted a supporting affirmation, Dkt. 21, and brief, Dkt. 22. As noted, see supra note 1, the Court construes the motion to dismiss as a motion to compel arbitration, pursuant to the Federal Arbitration Act (“FAA”).

On September 24, 2015, Begonja filed a brief in opposition. Dkt. 28. On October 2, 2015, defendants filed a reply brief with an accompanying affirmation. Dkt. 29 (“Def. Reply Br.”); Dkt. 30 (“Goldberg Reply Aff.”).

On October 9, 2015, the Court held an initial pretrial conference. At that conference, defendants represented that, should the Court compel arbitration of Begonja's claims, they would waive any defense at arbitration to the effect that Begonja's discrimination claims are time-barred. Defendants also represented that they would attempt to consolidate Begonja's discrimination claims with the pending arbitration proceedings at which her separate claim that her termination violated the CBA's “just cause” provision is being heard.

II. Applicable Legal Standards Under the Federal Arbitration Act

The FAA provides that an arbitration agreement “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation...