345 F. Supp. 3d 334
S.D. Ill.2018Background
- Plaintiff Anthony Lobban, a black porter and SEIU Local 32BJ member, worked for Cromwell Towers and supervised by John Carrollo; alleged repeated racial slurs and other discriminatory conduct from 2010–2016 and pay/overtime disputes.
- Lobban filed EEOC charges (Aug. 17, 2016 and Nov. 3, 2016) and was terminated Sept. 27, 2016; the Union filed a grievance and an arbitrator found employer had just cause to terminate and rejected retaliation-for-EEOC theory.
- Lobban then sued in federal court asserting § 1981, Title VII, NYSHRL, NYCHRL, FLSA/NYLL retaliation, and related claims against employer entities and Carrollo.
- Defendants moved to dismiss based on res judicata/collateral estoppel (preclusion) and alternatively to compel arbitration under the Collective Bargaining Agreement (CBA) and incorporated RAB/Union protocol.
- The CBA contains a broad no-discrimination clause that incorporates Title VII and § 1981 and makes such claims subject to the grievance/arbitration procedure; the incorporated protocol permits an employee to pursue arbitration where the Union declines but the parties dispute whether that creates an employee obligation to arbitrate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FLSA and NYLL retaliation (claims 9–10) survive | Lobban did not oppose; no argument presented | Move to dismiss as precluded or insufficiently pleaded | Dismissed as abandoned (claims 9 & 10) |
| Whether termination-based claims are precluded by arbitration award (res judicata) | Termination was discriminatory/retaliatory and can be litigated | Arbitrator decided termination not retaliatory; res judicata bars relitigation | Claims based on termination (portions of claims 1–7) are precluded; summary judgment for defendants as to termination-based claims |
| Whether discrimination and non-termination retaliation claims are precluded or estopped by arbitration (issue preclusion) | Arbitrator resolved credibility so discrimination claims should be barred | Arbitrator only resolved termination/retaliation issue and made no definitive finding on workplace discrimination; collateral estoppel burdens defendants | Not barred — discrimination claims and retaliation claims based on acts other than termination may proceed (but must be arbitrated) |
| Whether the CBA (and RAB/Union protocol) requires arbitration of Lobban's statutory discrimination and non-termination claims | Lobban contends protocol gives employees a forum choice when Union declines to arbitrate | Defendants: CBA/protocol contains clear-and-unmistakable waiver and requires arbitration even if Union declines | The CBA and incorporated protocol clearly and unmistakably require arbitration of the remaining statutory claims; motion to compel arbitration granted (no stay requested) |
Key Cases Cited
- Thompson v. County of Franklin, 15 F.3d 245 (2d Cir.) (Rule 12(b)(6) appropriate vehicle for preclusion defense)
- Ashcroft v. Iqbal, 556 U.S. 662 (plausibility pleading standard)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading standards)
- Nicosia v. Amazon.com, Inc., 834 F.3d 220 (motions to dismiss on arbitration clauses treated like motions to compel/summary judgment)
- Lawrence v. Sol G. Atlas Realty Co., 841 F.3d 81 (CBA can effect clear-and-unmistakable waiver of statutory federal forum rights)
- Wright v. Universal Maritime Serv. Corp., 525 U.S. 70 (standard for waiver of federal forum rights)
- Postlewaite v. McGraw-Hill, Inc., 333 F.3d 42 (heavy burden to show issue preclusion from arbitration award without clear findings)
- Katz v. Cellco P'ship, 794 F.3d 341 (stay required only if requested when all claims referred to arbitration)
- Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275 (privity in union-arbitration context)
- Allen v. McCurry, 449 U.S. 90 (res judicata precludes relitigation after final judgment)