Germosen v. Abm Indus. Corp.
| Decision Date | 26 August 2014 |
| Docket Number | 13-cv-1978 (ER) |
| Parties | LUIS GERMOSEN, Plaintiff, v. ABM INDUSTRIES CORPORATION, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Ramos, D.J.:
This employment discrimination action arises out of events that allegedly took place while Plaintiff Luis Germosen ("Plaintiff") was employed by Defendant ABM Industries Corporation ("Defendant").1 Doc. 8. The case is currently proceeding pursuant to an Amended Complaint, which alleges federal claims for discrimination and retaliation in violation of the Americans with Disabilities Act (the "ADA") and Title VII of the Civil Rights Act of 1964 ("Title VII"). Id. Plaintiff also alleges claims under the New York State Human Rights Law (the "NYSHRL") and the New York City Human Rights Law (the "NYCHRL"), along with a claim for breach of contract. Id.
Presently before the Court is Defendant's motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Doc. 15. The motion deals not with the merits of the various claims, but rather with threshold questions of preemption and arbitrability. Specifically, Defendant argues that Plaintiff's claims are preempted by the Labor Management Relations Act(the "LMRA") and that they are subject to mandatory arbitration pursuant to the operative collective bargaining agreement (the "CBA").2
For the reasons discussed below, Defendant's motion to dismiss is GRANTED.
The following facts are based on the allegations in the Amended Complaint, which the Court accepts as true for purposes of the instant motion. See Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012) (evaluating a Rule 12(b)(6) motion); J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004) (citing Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998)) (evaluating a Rule 12(b)(1) motion). Additional facts are drawn from the CBA.3
Plaintiff is a "Hispanic male of Dominican national origin." Am. Compl. ¶ 8. He was 52 years old at the time the Amended Complaint was filed. Id. Defendant, Plaintiff's former employer, provides facility management and maintenance services to businesses in the northeastern United States. See id. ¶¶ 9, 13. Plaintiff alleges that, when he was hired as a porter/cleaner in 2005, he was issued an Employee Handbook that set out the "terms, policies and conditions of the employment relationship." Id. ¶¶ 20-21. He also alleges that Defendantmaintained an Anti-Harassment and Discrimination Policy, though he claims that that policy failed to account for situations wherein the harassment or discrimination was committed by supervisors or managers. Id. ¶ 19. Moreover, Plaintiff alleges that Defendant's Albanian and Caucasian employees are more favorably treated and are subject to less job scrutiny than Hispanic employees are. See id. ¶¶ 46-49.
During the time period at issue, Plaintiff was diagnosed with a number of medical conditions, including cardiomyopathy, diabetes and high blood pressure, all of which he fully disclosed to ABM. Id. ¶¶ 21-22. Plaintiff alleges that, in addition to disclosing these diagnoses to his supervisors, he made multiple requests for reasonable accommodation in order to avoid "additional and unnecessary physical stress as to aggravate his medical condition." Id. ¶¶ 27, 30-31. Specifically, he alleges that he "consistently" applied for the position of shampoo rug cleaner and was denied the position despite being overqualified. Id. ¶ 50.
Plaintiff alleges that, following one of these requests (in April 2011) and despite what had previously been an "almost flawless employee record," he was subjected to an "unjustified frivolous and pre-textual campaign of harassment and retaliation." Id. ¶¶ 28-29, 32. This included an unjustified uptick in the number of Employee Corrective Action Notices ("ECANs") issued to Plaintiff by his supervisor. Id. ¶ 34. Plaintiff alleges that Defendant either knew or had reason to know of the supervisor's conduct, which targeted Plaintiff on account of his disability, race, color, age and national origin. Id. ¶ 37. The Amended Complaint describes a number of ECANs that Plaintiff alleges were baseless. See id. ¶¶ 38-43. In three instances, these allegedly frivolous ECANs prompted Defendant to suspend Plaintiff. See id. ¶¶ 40-42. The first such suspension was for three days. Id. ¶ 40. After Plaintiff filed a complaint with his union, Defendant reversed the suspension in part and restored Plaintiff to his original position, withback pay. Id. In the two subsequent instances, Defendant suspended Plaintiff indefinitely and without pay. Id. ¶¶ 41-42. Each time, after Plaintiff "sought redress from his union," Defendant reduced the period of suspension and restored Plaintiff to his original position. Id.
On March 12, 2012, Plaintiff's supervisor cited him for talking on his cellphone and being confrontational toward a client's employee. Id. ¶ 43. The following day, Defendant terminated Plaintiff in light of his "significant disciplinary record." Id. (internal quotation marks omitted).
Plaintiff filed a charge with the Equal Employment Opportunity Commission (the "EEOC") and was issued a right to sue letter. Id. ¶ 6. The instant lawsuit followed. Plaintiff alleges that he was wrongfully terminated in retaliation for exercising his rights under the ADA and Title VII and that he was discriminated against in violation of Title VII, the NYSHRL and the NYCHRL. Id. ¶¶ 53-65, 73-80. He also alleges breach of contract on the grounds that his offer of employment carried with it implied promises that he "would be treated fairly and in good faith and not discriminated against due to his disability, race, color, age and/or national origin." Id. ¶¶ 66-72. According to Plaintiff, "[t]he terms and statements contained in Defendants' [sic] Employee Handbook created an implied contract with the Plaintiff, which from its expressed terms provided that Defendant would not unlawfully discriminate against the Plaintiff during its employment relationship with Plaintiff." Id. ¶ 69. He also alleges that these implied promises were accompanied by a duty of good faith and fair dealing. Id. ¶ 70. Plaintiff claims that Defendant breached its contractual obligations "when it failed to accommodate Plaintiffs' [sic] reasonable accommodation request; discriminated against Plaintiff due to his disability, race,and/or national origin; and, wrongfully terminated Plaintiff for frivolous, baseless and pre-textual reasons." Id. ¶ 71.4
The operative CBA was entered into between Plaintiff's union, Services Employees International Union, Local 32BJ (the "Union"), and the Realty Advisory Board on Labor Relations, Inc. ("RAB"), a multi-employer bargaining group of which Defendant is a member. See Def.'s Mem. of Law at 3.5 Articles V and VI of the CBA set out a two-step grievance process, along with arbitration procedures. CBA at 13-20. The arbitrator is to "decide all differences arising between the parties as to interpretation, application or performance of any part of [the CBA] and such other issues as the parties are expressly required to arbitrate before him/her under the terms of [the CBA]." Id. at 15. These arbitration procedures are to constitute "the sole and exclusive method for the determination of all such issues." Id. at 17.
Article XVI of the CBA includes a "no discrimination" provision, the core language of which reads as follows:
There shall be no discrimination against any present or future employee by reason of race, creed, color, age, disability, national origin, sex, sexual orientation, union membership or any characteristic protected by law, including, but not limited to, claims made pursuant to Title VII of the Civil Rights Act, the Americans with Disabilities Act, 42 U.S.C. § 1981, the Age Discrimination in Employment Act, the Family Medical Leave Act, the New York State Human Rights Law, the NewYork City Human Rights Code . . ., or any other similar laws, rules or regulations. All such claims shall be subject to the grievance and arbitration procedure (Article V and VI) as the sole and exclusive remedy for violations. Arbitrators shall apply appropriate law in rendering decisions based upon claims of discrimination.
Id. at 112. In light of a dispute between the Union and RAB regarding whether individual employees had the right to pursue such discrimination claims in court if the Union declines to pursue arbitration, the parties entered into a 2010 Agreement and Protocol (the "Protocol"). See Decl. of Harry Weinberg Ex. E. The terms of the Protocol were subsequently incorporated into the CBA. See CBA at 114. The Protocol provides for mandatory mediation of discrimination claims brought by individual employees. See id. at 115, 117.6 In addition, if the Union declines to arbitrate a particular employment discrimination claim, the Protocol permits the individual employee to arbitrate the claim on his own. See id. at 118.
Federal Rule of Civil Procedure 12(b)(1) requires that an action be dismissed for lack of subject matter jurisdiction when the district court lacks the statutory or constitutional power to adjudicate the case. Fed. R. Civ. P. 12(b)(1). The party asserting subject matter jurisdiction carries the burden of establishing, by a preponderance of the evidence, that jurisdiction exists. Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). On a Rule 12(b)(1) motion challenging the district court's subject matter jurisdiction, evidence outside of the pleadings, such as affidavits, may be considered by the court to resolve the disputed jurisdictional fact issues. Zappia Middle E. Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000); see also Morrison,547 F.3d at 170 (citing Makarova, 201 F.3d at 113). When evaluating a motion to...
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