Lobban v. Cromwell Towers Apartments, Ltd. P'ship

• Decision Date: 29 October 2018
• Docket Number: 18-CV-247 (CS)
• Parties: Anthony LOBBAN, Plaintiff, v. CROMWELL TOWERS APARTMENTS, LIMITED PARTNERSHIP ; Metropolitan Realty Group, LLC; GPJ Cromwell LLC; and John Carrollo, Individually, Defendants.
• Court: U.S. District Court — Southern District of New York

345 F.Supp.3d 334

Anthony LOBBAN, Plaintiff,

v.CROMWELL TOWERS APARTMENTS, LIMITED PARTNERSHIP ; Metropolitan Realty Group, LLC; GPJ Cromwell LLC; and John Carrollo, Individually, Defendants.

18-CV-247 (CS)

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

Signed October 29, 2018

Locksley O. Wade, Law Office of Locksley O. Wade, LLC, New York, New York, Counsel for Plaintiff.

Stuart A. Weinberger, Goldberg and Weinberger LLP, New York, New York, Counsel for Defendants.

OPINION & ORDER

CATHY SEIBEL, UNITED STATES DISTRICT JUDGE

Before the Court is the motion to dismiss or compel arbitration of Defendants Cromwell Towers Apartments, Limited Partnership; Metropolitan Realty Group, LLC; GPJ Cromwell LLC; and John Carrollo. (Doc. 29.)

I. BACKGROUND

I accept as true the facts, but not the conclusions, set forth in Plaintiff's Complaint. (Doc. 1 ("Compl.").)

A. Facts

On July 3, 2009, Defendants Cromwell Towers Apartments, Limited Partnership ("Cromwell"); Metropolitan Realty Group, LLC; and GPJ Cromwell LLC (together, the "Corporate Defendants"), hired Plaintiff to work as a porter at an apartment building they owned in Yonkers, New York. (Id. ¶¶ 13, 25.) In connection with his employment, Plaintiff joined the Service Employees International Union, Local 32BJ ("SEIU 32BJ" or the "Union"). (See id. ¶¶ 32, 37, 46.)

Plaintiff's direct supervisor was Defendant John Carrollo. (Id. ¶ 21.) Carrollo is white and Plaintiff is black. (Id. ¶¶ 22-23.) Plaintiff alleges that beginning in or around the spring of 2010, Carrollo "tried to familiarize himself with Plaintiff by using slang words and stereotypical African American vernacular, such as ‘hook a brother up’ and ‘do a brother a favor.’ " (Id. ¶ 29.) Carrollo did not speak this way to Plaintiff's white counterparts. (Id. ¶ 30.)

Around December 2011, Plaintiff met with two Union delegates at SEIU 32BJ's New Rochelle office regarding Carrollo's conduct, but Plaintiff did not file a grievance. (Id. ¶ 32.) After that meeting, Carrollo "began harassing and threatening Plaintiff[,] saying [that] Plaintiff ‘opened a can of worms’ by going to the union," and that "he would retaliate against Plaintiff by writing him up because ‘we settle issues in house.’ " (Id. ¶ 33.) Carrollo also began "using the word ‘nigger’ almost every time he saw Plaintiff." (Id. ¶ 34.)¹

In the winter or spring of 2012, Plaintiff contacted his new Union delegate and complained about Carrollo's constant use of the word "nigger," but the delegate told Plaintiff that nothing could be done unless Plaintiff had an audio recording of Carrollo saying the word. (Id. ¶¶ 37-38.) Throughout 2013 and 2014, Carrollo continued to regularly use the words "nigger" and "nigga." (Id. ¶ 39.)

The abuse worsened beginning in late 2015, with Carrollo's "usage of ‘nigger’ toward Plaintiff bec[oming] combative." (Id. ¶ 47.) On December 21, 2015, Carrollo told Plaintiff, "[D]on't be a nigger, don't stay in the trash room for 20 years, go find another job." (Id. ) In the spring of 2016, Carrollo allegedly showed Plaintiff an app on his phone that simulated the noise of a person being whipped and said, "I thought of you[ ] when I got this." (Id. ¶ 51.) When Plaintiff asked Carrollo to stop, Carrollo played the whipping noise two more times and, from then on, used it regularly when assigning Plaintiff work. (Id. ¶ 53.) On June 2, 2016, Carrollo called Plaintiff "Kunta," referencing Kunta Kinte, the character from the novel Roots who is an enslaved African and is beaten into submission. (Id. ¶ 54 & n.2.) On July 5, 2016, while Plaintiff was eating, Carrollo allegedly told him, "[D]amn a nigger eating good." (Id. ¶ 56.) Whenever Plaintiff objected to Carrollo's use of derogatory and discriminatory language, Carrollo "curs[ed] Plaintiff out." (Id. ¶ 40.)

Plaintiff also alleges that Carrollo "short chang[ed] Plaintiff as to his pay under his contract" and deducted Plaintiff's pay "for uniform maintenance." (Id. ¶¶ 41, 46.) Plaintiff emailed Scott Jaffee, "Defendants' [o]wner," about discrepancies in his pay and spoke with the payroll department numerous times about issues with his missing wages. (Id. ¶¶ 42, 45, 46.) On many occasions, the issues with Plaintiff's pay were corrected by either Jaffee or the payroll department. (Id. ¶¶ 45-46). Plaintiff also alleges he was not properly paid for two vacation days, (id. ¶ 49), and was not properly paid for his overtime and other side jobs done for Defendants, (Id. ¶ 50). On or around July 12, 2016, Plaintiff was suspended for three days after "protesting working overtime, when he was not being paid for it," and complaining about being verbally discriminated against by Carrollo. (Id. ¶ 57; se id. ¶ 58)

On August 17, 2016, Plaintiff filed a charge of race discrimination and retaliation with the Equal Employment Opportunity Commission ("EEOC"). (Id. ¶ 59.) On September 13, 2016, the EEOC mailed Defendant a "Notice of the Charge of Discrimination," along with Plaintiff's charge particulars. (Id. ¶ 60.) On September 19, Carrollo showed Plaintiff a copy of the charge and "scolded Plaintiff" for filing an EEOC complaint. (See id. ¶ 61.)

On September 27, 2016, Plaintiff was terminated "under the guise of his failure to properly perform his duties." (Id. ¶ 64.) On November 3, 2016, Plaintiff filed another EEOC charge, this time for retaliation. (Id. ¶ 65.) The EEOC issued Notices of Right to Sue on November 3, 2017. (Id. ¶ 7; see id. at 17-20)

B. The Collective Bargaining Agreement

Pursuant to Plaintiff's membership in SEIU 32BJ, his employment was subject to a Collective Bargaining Agreement ("CBA") between the Union and Cromwell. (Doc. 31 ("Weinberger Decl.") Ex. C ("CBA").) Under the CBA, the Union is the "sole and exclusive bargaining representative for the purpose of bargaining in respect to rates of pay, wages, hours of employment, and all other terms and conditions pertaining to employment." (Id. at 4.)

Article Six of the CBA includes a "no-discrimination" clause that prohibits 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, ... 42 U.S.C. Section 1981, ... the New York State Human Rights Law, ... or any other similar laws, rules and regulations.

(Id. at 9.) The CBA mandates that "[a]ll such claims shall be subject to the grievance and arbitration procedure as the sole and e[x]clusive remedy for violations." (Id. )

The CBA also adopts a "[p]rotoc[o]l in the collective bargaining agreement between the Realty Advisory Board on Labor Relations (‘RAB’) and the Union," (id. ; see also Weinberger Decl. Ex. D at 107-10), which authorizes employees to arbitrate their own claims in "those circumstances in which the Union has declined to take an individual employee's employment discrimination claim under the no discriminationclause of the CBA (including statutory claims) to arbitration and the employee is desirous of litigating the claim," (Weinberger Decl. Ex. D at 113). Even though this protocol allows employees to arbitrate their claims when the Union does not bring them on the employee's behalf, the Union and the RAB disagree as to whether the employee must arbitrate. "The Union contends that the CBAs do not make provision for arbitration of any claims that the Union does not choose to take to arbitration, including statutory discrimination claims, and therefore, individual employees are not barred from pursuing their discrimination claims in court where the Union has declined to pursue them in arbitration." (Id. at 108.) "The RAB contends that the CBAs provide for arbitration of all individual claims, even where the Union has declined to bring such claims to arbitration." (Id. at 108-09.)

C. Arbitration Award

Following Plaintiff's termination, the Union brought a grievance to arbitration on his behalf, alleging that Cromwell did not have just cause to discharge Plaintiff. (See Weinberger Decl. Ex. B. ("Arb. Award") at 1-2.) The Union argued that "the only explanation for the Employer's decision to discharge him ... is retaliation against Mr. Lobban for filing his [EEOC] charge." (Id. at 10.)

On January 3, 2018, the arbitrator issued an arbitral award after receiving evidence and hearing from multiple witnesses. The arbitrator found that "[t]he Employer had just cause for the September 27, 2016 termination of Anthony Lobban," (id. at 16), and that his claim that he was terminated in retaliation for his EEOC charge was unsupported, (id. at 14-15). The arbitrator noted that Plaintiff made "unsupported accusations ... of racial discrimination by the Employer that he did not support in his own testimony at the hearing." (Id. at 15.) The arbitrator, however, did not make any findings as to whether Plaintiff was subject to discrimination while employed and noted that Carrollo "denied recalling any of the racial comments Mr. Lobban described and testified that anything he may have ever said to Mr. Carollo [sic ] was in social jest." (Id. at 9.)

II. PROCEDURAL HISTORY

On January 11, 2018, Plaintiff commenced this suit by filing a complaint alleging the following claims: (1) racial discrimination under 42 U.S.C. § 1981 against all Defendants; (2) racial discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), against the Corporate Defendants; (3) retaliation under Title VII against the Corporate Defendants; (4) racial discrimination under the New York State Executive Law § 296 against all Defendants; (5) retaliation under the New York State Executive Law § 296 against all Defendants; (6) racial discrimination under the New York City Administrative Code § 8-107(1)(a) against all Defendants; (7) retaliation under the New York City Administrative Code § 8-107(7) against all Defendants; (8) aiding and abetting racial discrimination and retaliation under the ...