Bright-Asante v. Saks & Co.

• Decision Date: 16 March 2017
• Docket Number: 15 Civ. 5876 (ER)
• Citation: 242 F.Supp.3d 229
• Parties: Michael BRIGHT–ASANTE, Plaintiff, v. SAKS & COMPANY, INC., Theo Christ, & Local 1102 Retail, Hotel, and Department Store Union/United Food and Commercial Workers International, Defendants.
• Court: U.S. District Court — Southern District of New York

242 F.Supp.3d 229

Michael BRIGHT–ASANTE, Plaintiff,

v.SAKS & COMPANY, INC., Theo Christ, & Local 1102 Retail, Hotel, and Department Store Union/United Food and Commercial Workers International, Defendants.

15 Civ. 5876 (ER)

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

Signed March 16, 2017

Kenechukwu Chudi Okoli, Law Offices of K.C. Okoli, P.C., New York, NY, for Plaintiff.

Kristine Jayne Feher, Raquel Sara Lord, Wendy Johson Lario, Greenberg Traurig LLP, Florham Park, NJ, Steven M. Swirsky, Laura Cathrine Monaco, Epstein, Becker & Green, P.C., New York, NY, Matthew Phillip Rocco, Rothman Rocco Laruffa, LLP, Elmsford, NY, for Defendants.

AMENDED OPINION AND ORDER

Ramos, D.J.:

Plaintiff Michael Bright–Asante brings this action against Saks & Company, Inc., the Vice President of Human Resources, Theo Christ (together, "Saks"), and the Retail, Hotel, and Department Store Union/United Food and Commercial Workers International Local 1102 ("Local 1102") (all together, "Defendants") alleging, among other things, employment discrimination. Before the Court are three motions: (1) Plaintiff's motion to amend the Amended Complaint pursuant to Federal Rule of Civil Procedure 15(a) ; (2) Saks' motion for sanctions pursuant to Federal Rule of Civil Procedure 11 ; and (3) Saks' motion to compel arbitration and/or dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).¹

For the reasons stated below, Plaintiff's motion to amend and Saks' motion for sanctions are DENIED and Saks' motion to compel arbitration and/or dismiss is DENIED in part and GRANTED in part.

I. Factual and Procedural Background²

Plaintiff is an African American man formerly employed as a sales associate in the women's shoe department at Saks Fifth Avenue (the "Store"), a department store in New York City. Amended Complaint ("Am. Compl") ¶ 10. He is married and has young children. Id. at ¶ 96. Plaintiff is also a member of Local 1102. Id. at ¶ 11. In December 2013, Local 1102 and Saks entered into a binding collective bargaining agreement ("CBA"). The CBA provides, in pertinent part, that Saks possesses "all statutory and inherent management rights, power, and authority" and that its right to hire or suspend its salespeople was not limited by any provision in the CBA. Rocco Decl. Ex. A, at 1. It also contains a provision prohibiting discrimination against any employee on account of gender, race, or any other legally protected status. Id. at 14 (Article 25. Non–Discrimination).

The CBA includes a three step grievance procedure to address a dispute or complaint arising between Local 1102 and Saks out of the CBA or "the interpretation thereof." Id. at 12 (Article 21. Administration, Grievance & Arbitration Procedure). Step 1 states that within twenty calendar days of an employee having a grievance, the employee or Local 1102 must submit the grievance to Saks in writing. Id. Saks must respond within twenty days (or "as soon thereafter as practicable"). Step 2 provides that if the grievance is not settled during the first step, it can be presented within twenty calendar days of Saks' answer, in writing to Defendant Christ, the Vice President of Human Resources at Saks. Id. This too must be answered by Saks within twenty calendar days. Lastly, if the grievance is not settled during the second step, after twenty calendar days the grievance can be submitted to arbitration. Id. at 13. To properly comply with Step 3, the employee must make a written demand for arbitration. Id. Importantly, the antidiscrimination provision makes no reference to this grievance procedure. Also, neither the grievance procedures nor the antidiscrimination provision address whether disputes arising under federal or state law are subject to arbitration.

In the summer of 2014, Saks became aware of fraudulent activity occurring at the Store and began an investigation of its sales associates. Plaintiff alleges that at that time, the racial makeup of the salespersons at the Store was approximately fifty percent white and fifty percent minorities. Id. at ¶ 48. He claims, however, that Saks investigated only the non-white salespersons. Id. at ¶ 49. Through its investigation, Saks learned that sales associates were stealing merchandise from the Store by the unauthorized use of customers' credit cards. On September 5, 2014, Plaintiff was arrested by law enforcement in connection with the investigation and charged with grand larceny and theft. Id. at ¶ 13. Four days later, on September 9, Christ sent Plaintiff a letter suspending him without pay "pending the legal outcome of [his] situation." Id. at ¶ 14. Plaintiff alleges that a white woman, who also worked in the Store and similarly sold merchandize to the same customer, was never investigated or suspended. Id. at ¶¶ 56–57.

On September 15, 2014, Local 1102 sent Saks an email ("Step 1 Grievance") requesting Plaintiff's immediate reinstatement and back pay. Rocco Decl. Ex. B. Plaintiff claims that the Step 1 Grievance was not signed by him and did not comply with the CBA because it did not include "a written summary" of his complaint "and/or the contract provision alleged to have been violated."³ Am. Compl. ¶ 29. He further claims that Saks did not respond within the requisite twenty-day period and that Local 1102 made no efforts to enforce the timeline. Id. at ¶¶ 34, 35. Plaintiff contrasts his grievance process with that of a white salesperson. Without providing further explanation or detail, he claims that during the time Local 1102 was unresponsive to him, it successfully grieved the suspension of a white salesperson. Id. at ¶ 72.

Plaintiff claims that sometime after he was suspended from the Store, he filed an application for unemployment benefits with the New York State Unemployment Insurance Benefits Board. Am. Compl. ¶ 86. He alleges that Saks opposed his application in retaliation for filing the application, which resulted in an initial denial of his unemployment benefits.

On March 13, 2015, all of the criminal charges against Plaintiff were dismissed. Id. at ¶ 19. One week later, on March 20, Plaintiff sent a letter to Christ informing him that his case had been dismissed and attached a copy of the Certificate of Disposition. Id. at ¶ 19. Plaintiff also duly notified Local 1102. Id. at ¶ 21. Plaintiff claims that no one from Saks responded to his letter. Id. at ¶ 20. He also claims that no one from Local 1102 responded to a letter he sent on April 10, inquiring about his grievance and reinstatement. Id. at ¶ 22. Though Plaintiff notes that representatives of Local 1102 did inform him that a grievance had been filed, he never received proof of the grievance or further updates regarding the grievance process until after he filed the instant action. Id. at ¶¶ 23–27.

On July 27, 2015, Plaintiff filed the instant suit.⁴ (Doc. 1) Plaintiff alleged that Saks unlawfully discriminated and retaliated against him and breached the CBA. Id. He also alleged that Local 1102 unlawfully discriminated against him and breached its duty of fair representation. Approximately one month later, on August 21, 2015, Local 1102 submitted Plaintiff's grievance to arbitration. Am. Compl. ¶ 41. On September 28, 2015, the Court entered an Order of Automatic Referral to mediation. (Doc. 16) The mediation session was held on January 8, 2016, however the parties could not reach a resolution. On February 9, 2016, Plaintiff requested a pre-motion conference to seek leave to amend the Complaint. (Doc. 20) The Court held the pre-motion conference and granted Plaintiff leave to file an amended complaint to include additional allegations against Local 1102. Plaintiff filed the Amended Complaint on April 4, 2016. (Doc. 25) The Amended Complaint included additional factual allegations and a claim for constructive discharge against Saks. Am. Compl. ¶¶ 94–98. Shortly thereafter, on April 29, 2016, Saks sought leave to file a motion to dismiss the Amended Complaint and/or compel arbitration. (Doc. 28) After the pre-motion conference on May 19, 2016, the Court granted Saks leave to file the instant motion, which it filed on June 9, 2016. (Doc. 32).

By letter dated August 11, 2016, Plaintiff informed the Court that the arbitration hearing had concluded and attached the Arbitrator's findings (the "Award"), dated July 29, 2016. Arbitration Award (Doc. 40). At the arbitration, Saks argued that its treatment⁵ of Plaintiff was properly supported by evidence that showed Plaintiff engaging in fraudulent transactions. According to Catherine Richards, the Director of Investigations at Saks, on August 29, 2014, Plaintiff sold pairs of Louboutin and Givenchy shoes (totaling more than $6,000) by using the credit card account number of a customer who was not present at the Store on that day and who had not authorized the purchase. Id. at 4. Richards testified that a surveillance video—which was not viewed at the arbitration—showed Plaintiff making the transactions at two separate registers and giving the shoes to a woman who was not the owner of the credit card account. Id. Local 1102 argued that Saks could not meet its burden of proof because the criminal charges against Plaintiff had been dropped, and Saks did not produce the individual whose card was allegedly used or the surveillance video showing Plaintiff's actions.

The Arbitrator found in favor of Saks and denied Local 1102's grievance. He relied on Richards' testimony regarding the video, stating that Richards' "unequivocal" identification of Plaintiff in the video established Plaintiff's involvement in the fraudulent transaction. Id. at 6. The Arbitrator also highlighted (1) the absence of the true cardholder; (2) Plaintiff's use of two separate registers to complete the purchase, and (3) Plaintiff's giving the shoes to a woman that was not the true cardholder. Lastly, the Arbitrator noted that there was no "plausible, benign reason" for Plaintiff's actions and that because Plaintiff did not attend the arbitration, "he...