AMENDED OPINION AND ORDER
Plaintiff Michael Bright-Asante brings this action against Saks & Company, Inc., the Vice President of Human Resources, Theo Christ (together, “Saks”), and the Retail, Hotel, and Department Store Union/United Food and Commercial Workers International Local 1102 (“Local 1102”) (all together, “Defendants”) alleging, among other things, employment discrimination. Before the Court are three motions: (1) Plaintiffs motion to amend the Amended Complaint pursuant to Federal Rule of Civil Procedure 15(a); (2) Saks’ motion for sanctions pursuant to Federal Rule of Civil Procedure 11; and (3) Saks’ motion to compel arbitration and/or dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
For the reasons stated below, Plaintiffs motion to amend and Saks’ motion for sanctions are DENIED and Saks’ motion to compel arbitration and/or dismiss is DENIED in part and GRANTED in part.
I. Factual and Procedural Background
Plaintiff is an African American man formerly employed as a sales associate in the women’s shoe department at Saks Fifth Avenue (the “Store”), a department store in New York City. Amended Complaint (“Am. Compl”) ¶ 10. He is married and has young children. Id. at ¶ 96. Plaintiff is also a member of Local 1102. Id. at ¶ 11. In December 2013, Local 1102 and Saks entered into a binding collective bargaining agreement (“CBA”). The CBA provides, in pertinent part, that Saks possesses “all statutory and inherent manage
The- CBA includes a three step grievance procedure to address a dispute or complaint arising between Local 1102 and Saks out of the CBA or “the interpretation thereof.” Id. at 12 (Article 21. Administration, Grievance & Arbitration Procedure). Step 1 states that within twenty calendar days of an employee having a grievance, the employee or Local 1102 must submit the grievance to Saks in writing. Id. Saks must respond within twenty days (or “as soon thereafter as practicable”). Step '2 provides that if the grievance is not settled during the first step, it can be presented within twenty calendar days of Saks’ answer, in writing to Defendant Christ, the Vice President of Human Resources' at Saks. Id. This too must be answered by Saks within twenty calendar days. Lastly, if the grievance is not settled during the second step, after twenty calendar days the grievance can be submitted to arbitration. Id. at 13. To properly comply with Step 3, the employee must make a written demand for arbitration. Id. Importantly, the antidiscrimination provision makes no reference to this grievance procedure; Also, neither the grievance procedures nor the antidiscrimination provision address whether disputes arising under federal or state law are subject to arbitration.
In the summer of 2014, Saks became aware of fraudulent activity occurring at the Store and began an investigation of its sales associates. Plaintiff alleges that at that time, the racial makeup of the salespersons at the Store was approximately fifty percent white and fifty percent minorities. Id. at ¶ 48. He claims, however, that Saks investigated only the non-white salespersons. Id. at ¶ 49. Through its investigation, Saks learned that- sales, associates were stealing merchandise from the Store by the' unauthorized use of customers’ credit cards. On September 5, 2014, Plaintiff was arrested by law enforcem'ent in connection with the investigation and charged with grand larceny and theft. Id. at ¶ 13. Four days later, on September 9, Christ sent Plaintiff a letter suspending him without pay “pending the legal outcome of [his] situation.” Id. at ¶ 14. Plaintiff alleges that a white woman, who also worked in the Store and similarly sold merchandize to the same customer, was never investigated or suspended. Id. at ¶¶ 56-57. ■ ''
On September 15, 2014, Local 1Í02 sent Saks an email (“Step 1 Grievance”) requesting Plaintiffs immediate reinstatement and back pay. Rocco Decl. Ex. B. Plaintiff claims that the Step 1 Grievance was not signed by him and did not comply with the CBA because it did not include “a written summary” of his complaint “and/or the contract provision alleged to have been violated.”
On March 13, 2015, all of the criminal charges against Plaintiff were dismissed. Id. at ¶ 19. One week later, on March 20, Plaintiff sent a letter to Christ informing him that his case had been dismissed and attached a copy of the Certificate of Disposition. Id. at ¶ 19. Plaintiff also duly notified Local 1102. Id. at ¶ 21. Plaintiff claims that no one from Saks responded to his letter. Id. at ¶ 20. He also claims that no one from Local 1102 responded to a letter he sent on April 10, inquiring about his grievance and reinstatement. Id. at ¶22. Though Plaintiff notes that representatives of Local 1102 did inform him that a grievance had been filed, he never received proof of the grievance or further updates regarding the grievance process until after he filed the instant action. Id. at ¶¶ 23-27.
On July 27, 2015, Plaintiff filed the instant suit.
By letter dated August 11, 2016, Plaintiff informed the Court that the arbitration hearing had concluded and attached the Arbitrator’s findings (the “Award”), dated July 29, 2016. Arbitration Award (Doc. 40). At the arbitration, Saks argued that its treatment
The .Arbitrator found in favor of Saks and denied Local 1102’s grievance. He relied on Richards’ testimony regarding the video, stating that Richards’ “unequivocal” identification of Plaintiff in the video established Plaintiffs involvement in the fraudulent transaction. Id. at 6. The Arbitrator also highlighted (1) the absence of the true cardholder; (2) Plaintiffs use of two separate registers to complete the purchase, and (3) Plaintiffs giving the shoes to a woman that was not the true cardholder. Lastly, the Arbitrator noted that there was no “plausible, benign reason” for Plaintiffs actions and that because Plaintiff did not attend the arbitration, “he obviously could not explain away what he did.” Id.
In the August 11 letter attaching the Award, Plaintiff claimed that the issue addressed by the Arbitrator was not the issue that Local 1102 had originally submitted for arbitration and that he was not made aware of the “new stipulated issue” until after the Award had been issued. Id. The Court directed Defendants to respond to Plaintiffs letter and to advise the Court on the impact of the Award on the pending motion to dismiss. (Doc. 41) On October 10, 2016, in response to Plaintiffs letter, Saks and Local 1102 provided a summary of the Arbitrator’s findings and emphasized that neither Plaintiff, nor his counsel, attended or participated in the arbitration. (Docs. 42, 43) Saks further claimed that its motion was unaffected by the Arbitrator’s findings and the Award. The next day, on October 11, Plaintiff filed a letter with the Court claiming that Defendants were in collusion because both Saks and Local 1102 knew that the video on which the Arbitrator relied did not support the Arbitrator’s conclusions. (Doc. 44) Plaintiff claimed that Richards “deliberately misled the Arbitrator and perjured herself’ by claiming that it was not Saks’ policy to allow customers to make purchases without physically showing their credit card. He also attached a copy of Saks’ policy allowing for transactions without the Store credit card so long as additional steps are taken to confirm the identification of the customer. On October 12, Plaintiff requested a pre-motion conference to vacate the Award or in the alternative seek leave to file an amended complaint to include a claim to vacate the Award. (Doc. 45).
The Court held the pre-motion conference on November 2, 2016. At the conference, Plaintiffs counsel explained that Local 1102 had been unresponsive to Plaintiffs requests for information regarding his grievance and that he did not receive any information from Local 1102 until after he filed the instant action. The Court cautioned Plaintiff that based on the facts presented at the conference, it was unlikely that Plaintiffs motion to amend would be granted. See Transcript of 11/2/2016 Conference (Doc. 53) at 14:9-18. Saks also informed the Court of its intention to seek sanctions in the event that Plaintiff filed the motion to amend. On November 7, 2016, Saks sent Plaintiffs counsel a letter giving notice of Saks’ intention to file a Rule 11 motion in the event Plaintiff filed a motion amend. Declaration of Wendy Johnson Lario in Opposition (“Lario Decl.”) (Doc. 59) Ex. B. On November 30, 2016, Plaintiff filed the instant motion to file a Second
II. Legal Standards
A. Rule 15 Motion to Amend
Parties are entitled to amend their pleadings once, as a matter of course, within 21 days after serving the pleading or, if a responsive pleading is required, within 21 days after service of a responsive pleading or a Rule 12 motion. Fed. R. Civ. P. 15(a)(1). A party may not otherwise amend its pleading without either the written consent of the opposing party or leave of the court. Fed. R. Civ. P. 15(a)(2). “The court should freely give leave when justice so requires.” Id. The Supreme Court has held that it would be an abuse of discretion, “inconsistent with the spirit of the Federal Rules,” for a district court to deny leave without some justification, “such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” Foman v. Davis,
B. Rule 12(b)(6) Motion to Dismiss
Under Rule 12(b)(6), a complaint may be dismissed for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). When ruling on a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiffs favor. Koch v. Christie’s Int’l PLC,
III. Discussion
A. Motion to Amend and/or Vacate the Award
Plaintiff seeks to vacate the Award or in the alternative, amend the Amended Complaint to include a claim to vacate the Award. Corrected Memoran
(1) where the award was procured by corruption, fraud, or undue means; , (2) where there was evident partiality or corruption in the arbitrators, or either of them; (3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or (4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
9 U.S.C. § 10(a). In addition to the four statutory bases, a court may on rare occasion “vacate an arbitration award if it finds a panel has acted in manifest disregard of the law.” Dolan v. ARC Mech. Corp., No. 11 Civ. 09691 (PAC),
Here, Plaintiff does not assert any of the grounds available for vacating the Award, and instead claims that the Arbitrator misconstrued the facts and wrongly determined that he had committed the fraudulent acts. Declaration of Michael Bright-Asante (Doc. 66) ¶¶ 20-29. However, an arbitrator’s factual findings are generally not subject to judicial challenge. Westerbeke Corp. v. Daihatsu Motor Co.,
In his pre-motion letter and at the pre-motion conference, Plaintiff argued that the Award was procured by undue means, or fraud. Plaintiff’s Pre-Motion Conference Letter dated 10/11/2016 (Doc. 44). However, Plaintiff does not address this argument in his motion papers, and has thus abandoned the argument. See Arma v. Buyseasons, Inc.,
B. Sanctions
Saks seeks sanctions pursuant to Federal Rule of Civil Procedure 11 for Plaintiffs filing of the motion to amend claiming that Plaintiffs motion was frivolous. Brief in Opposition to Plaintiffs Motion to File a Second Amended Complaint (“SAKS Amend Opp.”) (Doc. 58) at 7-8. Rule 11 states that the court may impose sanctions “[i]f, after notice and a reasonable opportunity to respond, the court determines that .Rule 11(b) has been violated....” Fed. R. Civ. P. 11(c)(1); see also Ipcon Collections LLC v. Costco Wholesale Corp.,
“A pleading, motion or other paper violates Rule 11 either when it has been interposed for any improper purpose, or where, after reasonable inquiry, a competent attorney could not form a reasonable belief that the pleading is well grounded in fact and is warranted by existing law or good faith argument for the extension, modification or reversal of existing law.” Robledo v. Bond No. 9,
Here, Plaintiffs desire to vacate the Award is grounded in the belief that- Local 1102 did not fairly represent his interests. Though Plaintiff does not assert a particular statutory ground- for vacating the Award, he claims that Local 1102’s “perfunctory” handling of his grievance falls within the ambit of the DelCostello, Hines, and Vaca line of cases excusing a plaintiffs requirement to exhaust arbitration remedies before filing suit.
In the Amended Complaint, Plaintiff claims that between March 2015 — when the criminal charges were dropped — and the filing of the Complaint in July, Local 1102 never responded to his letters or numerous phone calls requesting information regarding his grievance. Am. Compl. ¶¶ 17, 18, 23-27. Pursuant to the CBA, prior to arbitration, Local 1102 was required to attempt to address Plaintiffs concerns by communicating with management at the Store. Yet, Plaintiff claims that throughout the entire grievance process, Local 1102 made no effort to understand his concerns. It was not until the matter was scheduled for arbitration, the last step in the grievance process, that Local 1102 is alleged to have sought out Plaintiff for the first time. At that point, Plaintiff refused to cooperate with the union because he “believed that Local 1102 was not genuinely interested in fighting for [him].” PI. Amend. Memo at 3. Therefore, although the Court finds that Plaintiffs motion is wanting, the motion is not wholly without basis as it relies on caselaw that provides relief to employees who are purportedly being ill-represented by their unions and he has alleged that the union ignored his requests for information for months, and then failed to get his input when they filed the grievance. Accordingly, Saks’ motion for sanctions is denied.
C. Plaintiffs Statutory Claims Are Not Subject to Mandatory Arbitration
Plaintiff alleges four causes of action against Saks: (1) race discrimination in violation of 42 U.S.C. § 1981 (“Section 1981”) and New York City Human Rights Law (“NYCHRL”); (2) breach of the CBA; (3) retaliation in violation of New York Labor Law (“NYLL”); and (4) constructive discharge in violation of the NYCHRL.
The Federal Arbitration Act (“FAA”) requires that a contract provision to arbitrate disputes arising out of the contract “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation
As an initial matter, the Court finds that Plaintiffs claim of breach of the CBA is preempted by Section 301 of the Labor Management Relations Act and is thus subject to arbitration. See Int’l Bhd. of Elec. Workers, AFL-CIO v. Heckler,
The Court further finds that the CBA does not mandate arbitration of Plaintiffs federal and state discrimination claims. It is well-settled that Section 1981, NYCHRL, and NYLL claims may be made subject to arbitration. See Lawrence v. Sol G. Atlas Realty Co.,
D. Motion to Dismiss
Plaintiff alleges that both Saks and Christ discriminated against him “on the basis of his race in the making and enforcement of a contract.” Am. Compl. at ¶60. He also claims that his indefinite suspension without pay amounts to a constructive discharge.
i. Race Discrimination
To state a claim for discrimination under the NYCHRL, Plaintiff must show “differential treatment” of any degree because of a discriminatory motive. See Makinen v. City of N.Y.,
Here, Plaintiff has failed to properly assert a claim for race-discrimination under the NYCHRL, In the Amended Complaint, Plaintiff alleges that -he was discriminated against in the “making or enforcement of a contract.” Am. Compl. ¶ 60. Though this language appears in Section 1981, no such language exists’in the NYCHRL. However, because the Court finds that it is possible that Plaintiff can cure this' deficiency without prejudice to Defendants, Plaintiff is granted' léave to amend his pleading. Accordingly, Saks’ motion to dismiss Plaintiff’s race discrimination claim is granted without prejudice.
ii. Constructive Discharge.
The Court finds that Plaintiff has sufficiently stated a claim for constructive discharge. Generally, to assert a constructive discharge claim, a plaintiff must show that “rather than discharging him directly, [his employer] intentionally create[d] a work atmosphere so intolerable
Saks challenges Plaintiffs constructive discharge claim on the basis that he failed to allege that he was subjected to a hostile work environment. Saks Memo at 9. In support of its claim, Saks cites to a number of cases in which courts have found that a plaintiffs failure to plead a hostile work environment resulted in the dismissal of his constructive discharge claim. See e.g., Day v. N.Y. City Dep’t of Consumer Affairs, No. 10 Civ. 4888 (RWS),
As an initial matter, in all of the cases Saks cites, the plaintiff asserted both a hostile work environment and a constructive discharge claim based on the same set of facts. This type of constructive discharge claim has been characterized as a “hostile-environment constructive discharge” claim and requires that a plaintiff sufficiently allege a hostile work environment in order to adequately allege a constructive discharge claim. See Pennsylvania State Police v. Suders,
Courts have found that a drastic change in employment status or responsibilities can amount to a constructive discharge. Specifically, a “demotion, particularly one that is accompanied by a significant loss of salary, prestige or responsibilities, or -is otherwise ‘humiliating,’ may also, on its own, give rise to a constructive discharge claim.” Bader v. Special Metals Corp.,
Here, Plaintiff has pled sufficient facts to support his constructive discharge claim. Plaintiff does more than merely allege that he was.demoted or that his salary and responsibilities were significantly reduced. He claims his indefinite suspension', without pay for approximately ten months beginning on September . 9, 2014,
Moreover, Plaintiff alleges that a white saleswoman, who similarly sold merchandise to the same customer, was never investigated or suspended. The Court finds that these allegations are sufficient to survive a motion to dismiss. Accordingly, Saks’ motion to dismiss Plaintiffs constructive discharge claim is denied,
iii. Retaliation
Plaintiff claims that Saks retaliated against him in violation of Section 215 of NYLL by opposing his application for unemployment benefits resulting in his benefits being “initially withheld and denied.” Am. Compl. ¶¶ 91-92. Saks asserts that because it had an obligation to submit facts related to Plaintiffs unemployment application, its opposition did not constitute retaliation, but rather compliance with New York’s request for information. Saks Memo at 8.
Section 215 prohibits an employer or his agent from discharging, penalizing, or in any other manner discriminating against.any employee “because such employee has caused to be instituted a proceeding under or related to this chapter.” N.Y. Lab. Law § 215(1)(a)(iii). To establish a prima facie claim under Section 215, a plaintiff must demonstrates that “while employed by the defendant, he made a complaint about the employer’s violation of the law and, as a result, was terminated or otherwise penalized, discriminated against, or subjected to an adverse employment action.” Paz v. Piedra, No. 09 Civ. 3977 (LAK),
Here, Plaintiff has not alleged sufficient facts to allow the Court to infer that Saks retaliated against him by opposing his unemployment benefits application. Plaintiff claims that Saks opposed his unemployment benefits application on the ground that he had committed a crime against Saks. Am. Compl. ¶ 87. In conclu-sory fashion, he assigns a retaliatory motive to Saks’ opposition because he maintains that he did not commit a crime. However, Saks’ filing of an opposition explaining its reasons for suspending Plaintiff — without more — is not retaliatory. See e.g., Whalley v. Reliance Grp. Holdings,
IV. Conclusion
For the reasons set forth above, Plaintiffs motion to file a second amended complaint or vacate the Award and Saks’ motion for sanctions is DENIED. Saks’ motion to compel arbitration and/or dismiss is DENIED in part and GRANTED in part as follows:
• Saks’ motion to compel arbitration of Plaintiffs breach of contract claim is GRANTED.
• Saks’ motion to compel arbitration of his statutory discrimination claims is DENIED.
• Saks’ motion to dismiss Plaintiffs race discrimination claim pursuant to the NYCHRL is GRANTED without prejudice.
• Saks’ motion to dismiss Plaintiffs constructive discharge claim is DENIED.
• Saks’ motion to dismiss Plaintiffs retaliation claim pursuant to the NYLL is GRANTED.
The Clerk of Court is respectfully directed to terminate the motions, Docs. 32, 57, 65.
It is SO ORDERED.
Notes
. Defendant Local 1102 is represented by separate counsel and has not moved to dismiss Plaintiff’s claims against it. However, Local 1102 has submitted a letter in opposition to Saks’ motion to compel arbitration. (Doc. 37).
. The following facts are drawn from allegations contained in the Amended Complaint (Doc. 25), which the Court accepts as true for purposes of the instant motion. See Koch v. Christie’s Int'l PLC,
. The. CBA provides that the grievance "shall be signed by the grievant and the Shop Steward or [Local 1102] Representative, shall contain a written summary of the complaint and/or the contract provision alleged to have been violated and the remedy sought,” Rocco Decl. Ex. A, at 12.
. Plaintiff claims that around the time he commenced the instant action, he secured employment as a flight attendant. Am. Compl. ¶ 82. He asserts that instead of making more than $100,000 per year, as he did at Saks, he now makes only $23,000. Id.
. Local 1102 and Saks disagreed as to whether Plaintiff’s indefinite suspension was better characterized as a suspension or a discharge. The Arbitrator found that the distinction "held no bearing on the outcome of [the] dispute” and instead framed the issue as Saks’ "treatment" of Plaintiff. Arbitration Award at 5 n,5.
. Due to a filing error, Plaintiff was directed to refile his motion and accompanying documents. Plaintiff properly refiled the documents on January 9, 2017. (Docs. 65-67).
. The cases to which Plaintiff refers are three Supreme Court cases: DelCostello v. Int'l Bhd. of Teamsters,
. Though Plaintiff brings this action pursuant to Section 1981, LMRA § 301, NYCHRL, and NYLL, Plaintiff does not cite to a particular statute as the basis for his discrimination and constructive discharge claims. In its motion, Saks assumes that Plaintiff's discrimination claim was made pursuant to both Section 1981 and the NYCHRL and that his constructive discharge claim was asserted pursuant to the NYCHRL.
. In his opposition papers, Plaintiff states that Local 1102 would address the argument regarding whether his statutory claims were subject to arbitration. PI. Opp. at 12. Plaintiff reserved the right to "supplement or proffer a different argument after reviewing" Local 1102's submission, but did not submit supplemental materials.
. Though Saks argues that Plaintiffs Section 1981 claim should be subject to mandatory arbitration, it does not move to dismiss Plaintiffs claim in its 12(b)(6) motion. Accordingly, the Court will not determine whether Plaintiff . sufficiently alleged his Section 1981 claim’ at this time.