Clarke v. Ufi, Inc.

• Decision Date: 16 May 2000
• Docket Number: No. 99CV1943(ILG).,99CV1943(ILG).
• Citation: 98 F.Supp.2d 320
• Parties: Rudolph CLARKE and Edwin Velez, Plaintiffs, v. UFI, INC. and Thomas Lewis, Defendants.
• Court: U.S. District Court — Eastern District of New York

98 F.Supp.2d 320

Rudolph CLARKE and Edwin Velez, Plaintiffs, v. UFI, INC. and Thomas Lewis, Defendants.

No. 99CV1943(ILG).

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

May 16, 2000.

John P. Gianfortune, Lake Success, N.Y., for plaintiffs.

Stanley Israel, Long Island City, N.Y., for defendants.

MEMORANDUM and ORDER

GLASSER, District Judge.

Plaintiffs Rudolph Clarke and Edwin Velez bring this action against their former employer, UFI, Inc., and Thomas Lewis, one of their supervisors, alleging that they were subjected to workplace sexual harassment and to retaliatory discharge, in violation of Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e et seq., and the New York Executive Law § 296 et seq. Plaintiffs also allege a common law cause of action for intentional infliction of emotional distress. Defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, and in the alternative, for an order of dismissal pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction, and for failure to state a claim. Defendants also move for leave to amend their answer. For the reasons that follow, defendants' motion to amend is granted, their motion to dismiss the cause of action for intentional infliction of emotional distress is granted for failure to state a claim, and their motion for summary judgment is also granted, and the complaint is dismissed.

BACKGROUND

Defendant UFI, Inc. (an abbreviation for "Uniforms for Industry") is a New York corporation engaged since 1960 in the business of renting and laundering industrial uniforms. It employs a workforce of several hundred persons in various capacities, including mechanics who service its fleet of delivery vehicles. For most of its existence UFI has been a union shop, and a party to a succession of collective bargaining agreements with the Amalgamated Service and Allied Industries Joint Board, UNITE, AFL — CIO, or its predecessor (hereinafter, the "Union"). Plaintiffs Rudolph Clarke and Edwin Velez were employed at UFI as mechanics and mechanic's helpers. Both men were members of the Union during their tenure at UFI. Clarke began in October, 1997, and continued at UFI until early in 1999. Velez worked at UFI between March, 1997, and July, 1998.

Defendant Thomas Lewis has worked at UFI for around 10 years as the manager of its fleet of vehicles. He hired both Clarke and Velez, and was their supervisor throughout their employment.

The collective bargaining agreement in force when the events at issue transpired¹ (the "CBA") contains several provisions pertinent to this motion. Section 33 states:

The power of discharge remains with the Employer. The Employer agrees, however, that it shall exercise this power with justice and due regard for the rights of the employees. In the event the Union claims the discharge is unjust, the Union shall submit its complaint to the Arbitrator within five (5) days from the date of discharge and the decision of the Arbitrator shall be rendered within one week from the date of the hearing. If the Arbitrator finds that an employee was unjustly discharged, the Arbitrator may order the employee reinstated with back pay for time lost.

Section 34 contains this provision regarding "Grievance Procedure":

Complaints shall, in the first instance, be taken up for adjustment by the representatives of the parties hereto. In the event they fail to agree, the matter shall be referred to the Arbitrator for a decision.

Section 35 of the CBA sets forth the procedure governing arbitration of grievances arising under the agreement. After designating Philip Ross as the Arbitrator², section 35 continues, with a statement of the scope of arbitrability:

Any and all complaints, grievances or disputes arising between the parties hereto under, out of, or in connection with or in relation to this Agreement or in the interpretation, performance, termination or any alleged breach thereof, shall be forthwith referred for arbitration and final determination to the Arbitrator. The Arbitrator is empowered to include in the award mandatory and injunctive relief and to assess damages including interest. Any specific reference in any provision of this Agreement for arbitration shall not be construed as a limitation or a waiver of arbitration with respect to any and all complaints, grievances or disputes arising out of any other terms of this Agreement where no specific reference is made.

CBA, § 35(B) (Exh. A to Deitrich Aff.). The decisions of the Arbitrator are final, under the CBA:

All determinations, decisions and awards shall be final, conclusive and binding upon all the parties hereto, their heirs, executors, administrators, assigns, or successors in interest and upon any Employer and employee covered by this Agreement.

Id. at § 35(D). The CBA further provides that the Arbitrator shall apply New York law, makes various specific provisions for the conduct of arbitration proceedings, and prohibits any "proceeding or action in a court or [sic] law or equity or administrative tribunal ... other than to compel arbitration and to enforce an award." Id. at §§ 35(D), (H).

Of particular significance for this action is the section immediately following the CBA's arbitration provisions:

The Union and the Employer recognize the problem of sexual harassment in the workplace and are committed to ending it. Sexual harassment shall be defined as: unnecessary physical contact, touch or patting, suggestive and unwelcome remarks, jokes, comments about appearance and deliberate verbal abuse, leering and compromising invitations, use of pornographic pictures at the workplace, demands for sexual favors and physical assault. Grievances under this clause will be handled with all possible speed and confidentiality. In settling the grievance, disciplinary action may be taken against employees (both bargaining unit and non-bargaining unit) and supervisors who engage in any activity prohibited under this clause.

Id. at § 36.³

On July 28, 1998, six days after terminating his own employment at UFI, plaintiff Velez filed a grievance with the Union seeking reinstatement to his former position. In his grievance he claimed that he had been "forced out" of his job "because of [a] shift change." (Exh. C to Deitrich Aff.)

Three days later, on July 31, 1998, plaintiff Clarke filed a grievance with the Union alleging as follows:

Sexual harrasment (sic)—Unnecessary physical contact, touching unwelcomed remarks, jokes, comments about appearance

(Exh. E to Deitrich Aff.) On the same day, Velez filed a second grievance, this time alleging sexual harassment:

Sexual harrasment (sic): unnecessary physical contact, patting, unwelcomed (sic) remarks

(Exh. D to Deitrich Aff.) It is not disputed that before the filing of these grievances, neither Clarke nor Velez had made any allegation of sexual harassment to anyone at UFI or in the Union.

In accordance with the provisions of sections 35 and 36 of the CBA, the grievances of Clarke and Velez were submitted to arbitration before Philip Ross. Hearings were held on five different days between September and December, 1998. Clarke, Velez, and the Union were at all times represented by counsel. Testimony was taken under oath, subject to cross-examination, and both sides submitted posthearing briefs. A full transcript of the hearings was made, and has been submitted in part on this motion. Both Clarke and Velez testified on their own behalf, and also called three other witnesses in support of their case. UFI produced the defendant Lewis, and four other UFI employees as witnesses.

On April 15, 1999, Arbitrator Ross issued an Opinion and Award dismissing the claims of both Clarke and Velez in their entirety. The Opinion begins with a summary of the testimony. Velez testified that defendant Lewis had "engaged in various provocative and disturbing acts." (Arb.Op. at 2.) Velez cited in particular Lewis's alleged penchant for "`touching games ... like touching my shoulders, come next to me, pinch me on the side....'" (Id., quoting Velez.) Velez stated that he would try to walk away, but that Lewis would follow. "`Most of the time I'd be running around the garage, trying to get away from him.'" (Id.) When asked how often these games took place, Velez responded, "pretty much every day." (Id.)

Velez charged that Lewis pinched him so hard and so often that marks were left on his body, which when she saw them, caused his wife to suspect him of infidelity. (Id.) Velez cited other instances of alleged harassment by Lewis, including unwanted "bearhugs," an invitation to kiss him, an unsolicited spanking, eavesdropping in the locker room, and various offensive remarks. (Id. at 2-3.) Lewis also claimed that a wall in Lewis's office at UFI was covered with "pictures of naked women." (Id.)

Velez claimed that he had not complained earlier about Lewis's conduct because of a previous experience with Derrick Miller, an officer at UFI. (Id. at 3-4.) Velez claimed that some six years earlier, while Velez was working at a gas station, Miller had offered him $100 to accompany him to a party. (Id. at 4.) Velez also claimed that he had tried to raise the issue with two Union officials, but they had belittled his complaints, thrown out a grievance he had actually filed, and assured him that he would get no help with such a grievance. (Id.) According to Arbitrator Ross

Velez was both vague and contradictory about the time and subject of his discussions with Sam Velez and Arroyo [the two Union officials with whom he claimed to have complained about sexual harassment, Sam Velez being no relation to the plaintiff Velez]. He continued to insist that he filed a grievance with Sam Velez which was thrown away and that afterwards he spoke to Arroyo and filed another grievance. However he wasn't sure whether the first grievance filed with Sam Velez involved sexual...