ORDER GRANTING MOTION TO COMPEL ARBITRATION
PAMELA K. CHEN, United States District Judge.
Plaintiff Cedric Favors brings this employment discrimination action against Triangle Services, Inc., Triangle Aviation Services, Inc., XYZ Corporation #1-2, Abadeen Mustafacko, Avdo Djokovic, John Does #1-30 (the "Triangle Defendants"),
On June 30, 2015, Plaintiff filed a Complaint against all Defendants alleging that he was discriminated against on the basis of his race. (Dkt. 1.) Plaintiff subsequently moved for a temporary restraining order on August 13, 2015, asking the Court, among other things, for permission to file an amended complaint and a temporary restraining order enjoining Defendants from engaging in an arbitration on his employment discrimination claims. (Dkt. 10.) The Court heard oral argument on August 18, 2015 and subsequently enjoined Defendants "from engaging in, participating in, or conducting an arbitration of any matters related to Plaintiff's allegations... without further Order of the Court." (Dkt. 17.) With Defendants' consent, the Court also permitted Plaintiff to file an amended complaint. (8/18/2015 Minute Entry.)
Plaintiff filed the First Amended Complaint on August 24, 2015. (Dkt. 18.) On November 2, 2015, Plaintiff voluntarily dismissed with prejudice all causes of action against the Union and Defendants John Does #11-30 "to the extent they are employees or representatives of the Union." (Dkt. 25.) On December 15, 2015, Plaintiff further dismissed with prejudice all causes of action arising under Title VII against Defendants Abadeen Mustafacko, Avdo Djokovic, and John Does #1-30, and the Nineteenth (Negligence), Twentieth (Breach of Contract), and Twenty-Second (§ 301 of the Labor Management Relations Act) causes of action. (Dkt. 28.)
I. LEGAL STANDARD UNDER THE FEDERAL ARBITRATION ACT
The Federal Arbitration Act (the "FAA"), 9 U.S.C. § 1 et seq., "creates a body of federal substantive law of arbitrability applicable to arbitration agreements... affecting interstate commerce." Ragone v. Atl. Video at Manhattan Ctr., 595 F.3d 115, 121 (2d Cir.2010) (quotation and citation omitted).
"In deciding motions to compel, courts apply a standard similar to that applicable for a motion for summary judgment," Nicosia, 834 F.Supp.3d at 229, 2016 WL 4473225, at *4 (quotations and citations omitted), and courts may therefore consider materials outside the Complaint, including the parties' collective bargaining agreement. See, e.g., HBC Solutions, Inc. v. Harris Corp., 13-CV-6327, 2014 WL 6982921, at *1 (S.D.N.Y. Dec. 10, 2014). "[W]here the undisputed facts in the record require the matter of arbitrability to be decided against one side or the other as a matter of law, [a court] may rule on the basis of that legal issue and avoid the need for further court proceedings." Wachovia Bank, Nat'l Ass'n v. VCG Special Opportunities Master Fund, Ltd., 661 F.3d 164, 172 (2d Cir.2011) (quotation omitted). The party "seeking to avoid arbitration generally bears the burden of showing the agreement to be inapplicable or invalid." Harrington v. Atl. Sounding Co., Inc., 602 F.3d 113, 124 (2d Cir.2010) (citing Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 91-92, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000)).
II. THE COLLECTIVE BARGAINING AGREEMENT
At all relevant times during his employment, Plaintiff was bound by the CBA entered into between the Union and the
(CBA Art. XVI § 30(A) (emphasis added).)
Article XVI, Section 30(B) of the CBA (the "No-Discrimination Protocol") contains the provisions relied upon by Plaintiff in arguing against arbitration. This section is "applicable to all ... claims, whenever they arise." (Id. § 30(B).) As part of the No-Discrimination Protocol, "[w]henever it is claimed that an employer has violated the [No-Discrimination Clause] (including claims based in statute), whether such claim is made by the Union or by an individual employee ... the matter shall be submitted to mediation, absent prior resolution through informal means." (Id. § 30(B)(2)(a).)
The seeming conflict between the CBA's No-Discrimination Clause and its No-Discrimination Protocol, as discussed infra, is due to recent case law development with respect to arbitration clauses in collective bargaining agreements. However, as the Court concludes below, there is no actual conflict between these two provisions, which can, and must, be read in tandem, to require that, pursuant to the CBA, all individual employee claims of discrimination must be arbitrated.
III. ENFORCEABILITY OF CBA'S ARBITRATION CLAUSE
A. Applicability of No-Discrimination Clause Versus No-Discrimination Protocol, and Union Decision to Decline Arbitration
In 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 129 S.Ct. 1456, 173 L.Ed.2d 398 (2009), the United States Supreme Court made clear that a mandatory arbitration clause in a collective bargaining agreement is enforceable as to union members where it "clearly and unmistakably requires union members to arbitrate [the federal statutory claim]," and Congress has not prohibited those claims from being arbitrated.
Penn Plaza, however, expressly left open whether a CBA that allows a union to "block arbitration" of employees' federal statutory claims "operates as a substantive waiver of their ... rights." 556 U.S. at 273-74, 129 S.Ct. 1456. Morris v. Temco Service Industries Inc., 09 Civ. 6194, 2010 WL 3291810 (S.D.N.Y. Aug. 12, 2010), which followed shortly after the Supreme Court's decision in Penn Plaza, is instructive on this issue. There, the Court denied a motion to compel arbitration because the clause at issue amounted to a substantive waiver of rights since the agreement did not contain an alternative procedure for the employee to pursue claims independently if the union declined to arbitrate. Id. at *6; see also Kravar v. Triangle Servs., Inc., 06-CV-07858, 2009 WL 1392595, at *2 (S.D.N.Y. May 19, 2009) (clause unenforceable where parties did "not dispute that an individual union member does not have an unfettered right to demand arbitration of a discrimination claim; to do so, she must present the claim to the union, which `may' demand arbitration, presumably if it finds the claim colorable.").
Because of cases such as Morris, employers and unions began revising their collective bargaining agreements to include mechanisms for employees to arbitrate without the union's participation. See, e.g., Germosen v. ABM Indus. Corp., 13-CV-1978, 2014 WL 4211347, at *3 (S.D.N.Y. Aug. 26, 2014). Here, such a revision is reflected in the No-Discrimination Protocol.
Plaintiff argues that the inclusion of the No-Discrimination Protocol must mean that the No-Discrimination Clause does not apply in cases where a union declines to pursue the employee's claims. Instead, he argues, the No-Discrimination Protocol provides the sole applicable contractual language. As explained further below, the Court disagrees, but it need not even reach this issue because Plaintiff has introduced no evidence that he made any attempt to initiate the grievance process prior to bringing this action in federal court, let alone that the Union has, in fact, declined to arbitrate his claims. See Alfonso v. Maggies Paratransit Corp., 16-CV-0363, 203 F.Supp.3d 244, 251-52, 2016 WL 4468187, at *5 (E.D.N.Y. Aug. 23, 2016) (collecting cases where courts have compelled arbitration because plaintiff failed to show that union in fact declined to arbitrate claim).
Based on Penn Plaza, the Court finds it premature to determine whether the CBA's No-Discrimination Protocol mandates arbitration, given the absence of any showing that the Union has in fact declined to arbitrate Plaintiff's claim. As the Supreme Court reiterated in Penn Plaza, arbitration agreements should not be invalidated "on the basis of speculation." 556 U.S. at 274, 129 S.Ct. 1456; see also, e.g., Green Tree, 531 U.S. at 91, 121 S.Ct. 513 (mere "risk" that a party "will be saddled with prohibitive costs is too speculative to justify the invalidation of an arbitration agreement"); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637 n. 19, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985) (court had "no occasion to speculate" on whether the arbitration agreement's choice-of-forum and choice-of-law clauses could operate in tandem to deprive a claimant of his right to pursue federal remedies, but "would have little hesitation in condemning the agreement" if such a situation came to pass); JLM Indus., Inc. v. Stolt-Nielsen SA, 387 F.3d 163, 182 (2d Cir.2004) ("[B]ecause [the choice of law during arbitration proceedings] is speculative, our consideration of whether [plaintiff] will be able to effectively vindicate its rights under the Sherman Act is premature.").
B. CBA Mandates Mediation and Arbitration
Even though it need not reach this issue, the Court observes that the CBA's No-Discrimination Clause and No-Discrimination Protocol are not contradictory and must be read together. While the No-Discrimination Clause governs all discrimination claims, whether brought by the Union on behalf of an individual employee or by the employee himself — and requires arbitration of all such claims — the No-Discrimination Protocol governs the subset of those claims where the Union declines to pursue the claim for the employee — but still requires mediation and, if mediation fails, arbitration when an individual employee pursues the claim on his own. (CBA Art. XVI § 30(B)(1) (indicating that the "parties" to the CBA, i.e., the Union and the RAB,
Indeed, courts within the Second Circuit have "repeatedly concluded that under [provisions similar to the No-Discrimination Protocol], individual employees are required to arbitrate their claims." Jenkins v. Collins Bldg. Servs., 10 Civ. 6305, 2013 WL 8112381, at *3, 2013 U.S. Dist. LEXIS 186412, at *8-10 (S.D.N.Y. Oct. 16, 2013); see also Okuma v. Crotona Park West Hous. Dev. Fund Corp., 14 Civ. 239, 2014 U.S. Dist. LEXIS 143444, at *15-16 (S.D.N.Y. Sept. 29, 2014) ("[E]ven assuming that the Union had refused to file a grievance on Plaintiff's behalf, the Union's
IV. STAYING THE INSTANT PROCEEDINGS
Having concluded that Plaintiff's claims are subject to mandatory mediation and arbitration, the Court must decide whether to dismiss, as Defendants request, or stay this action pending Plaintiff's submission to the CBA's grievance procedures. "The Second Circuit has urged courts to be mindful of th[e] liberal federal policy favoring arbitration agreements when deciding whether to dismiss an action or instead grant a stay and consider that [u]nnecessary delay of the arbitral process through appellate review [following dismissal] is disfavored." Pontier, 2011 WL 1346801, at *4 n. 3. Moreover, the Second Circuit recently held that the FAA "requires a stay of proceedings when all claims are referred to arbitration and a stay [is] requested." Katz v. Cellco P'ship, 794 F.3d 341, 343 (2d Cir.2015). Although Defendants request complete dismissal instead of a stay, the Court finds that the same policy reasons relied on in Katz support a stay of the case here. Id. at 346 (noting that a stay is consistent with the FAA's underlying policy "to move the parties to an arbitrable dispute out of court and into arbitration as quickly and easily as possible ... [and to] enable parties to proceed to arbitration directly, unencumbered by the uncertainty and expense of additional litigation"). The Court additionally finds a stay appropriate in light of the possibility that Plaintiff may require further redress from this Court on his non-statutory discrimination claims.
For the reasons set forth above, Defendants' motion to compel arbitration is granted, this case is stayed, and the Court's August 18, 2015 Temporary Restraining Order is lifted. If Plaintiff wishes to proceed with his claims, he is directed to submit to the grievance procedures contemplated by Article XVI, Section 30(A) of CBA. If the Union declines to take his claims to arbitration notwithstanding Plaintiff's request, then he is directed to submit to the mediation and arbitration procedures outlined in Article XVI, Section 30(B) of the CBA. The parties are directed to inform the Court of any resolution of the arbitration proceedings, or any other event, that would affect the stay of this matter.
Citations to "ECF" refer to the pagination generated by the Court's electronic docketing system and not the documents internal pagination.
Moreover, the Court has considered Plaintiff's other textual arguments against arbitration and rejects them too because they all rely on reading the No-Discrimination Protocol in a vacuum, which the Court declines to do.