Espada v. Guardian Service Industries, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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LUZ ESPADA,

Plaintiff, MEMORANDUM AND ORDER

18-CV-5443 (ILG) (JO)

v.

GUARDIAN SERVICE INDUSTRIES, INC.,

and ANGEL QUILES,

Defendants.

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GLASSER, Senior United States District Judge:

Plaintiff Luz Espada brought this action against Defendants Guardian Service Industries,

Inc. (“Guardian”) and Angel Quiles (“Quiles”) pursuant to Title VII of the Civil Rights Act of

1964 (“Title VII”), the New York State Human Rights Law, N.Y. Exec. L. § 296

(“NYSHRL”), and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107(1)(a)

(“NYCHRL”), alleging sex discrimination and retaliation. (See Compl., ECF No. 1). Pending

before the Court are two motions. First, Defendants move to compel arbitration and stay or, in

the alternative, set aside the proceedings. (See ECF Nos. 7, 29). Second, Quiles has submitted a

pro se letter dated February 22, 2019, which the Court construes liberally as a motion to dismiss

the proceedings under Federal Rule of Civil Procedure 12(b)(5). (See ECF No. 20).1

1 Quiles also states that he cannot afford counsel and requests that the Court appoint him a “free

lawyer.” (ECF No. 20). The Court cannot grant such a request in this civil case. However, the

Federal Pro Se Legal Assistance Project of the City Bar Justice Center provides free information,

advice, and limited-scope legal assistance to non-incarcerated, pro se litigants in the Eastern

District of New York. The Court refers Quiles to their website for more information:

https://www.citybarjusticecenter.org/projects/federal-pro-se-legal-assistance-project/.

BACKGROUND

The following background information is common to both sets of motions. Additional

background information, where relevant, is set forth in the sections that follow.

Guardian describes itself as a “full-service janitorial and building maintenance company”

that “provides janitorial cleaning, building maintenance, and related services to commercial sites

and buildings in and around the New York metropolitan region.” (Def. Mem. at 1, 3, ECF No. 7-

1, at 5, 7). Plaintiff worked for Guardian as a porter at an apartment complex in Staten Island.

(See Compl. ¶¶ 18-19). At all relevant times, she was a member of the Service Employees

International Union, Local 32BJ (“SEIU Local 32BJ” or the “Union”). (See Pl. Opp. at 1, ECF

No. 14 at 6; Pl. Exs. C, D, ECF Nos. 13-4, 13-5).

Plaintiff alleges that Quiles, her manager, persistently subjected her to sexual harassment,

both verbal and physical, between October 2016 and May 2017. (See Compl. ¶¶ 11, 27-41).2 In

one incident, Quiles allegedly instructed Plaintiff to follow him into a vacant apartment where he

told her to “get on all fours” and clean the floor. (Id. ¶¶ 70-74). As Plaintiff was getting ready to

walk out of the apartment, Quiles allegedly “smacked” her buttocks and made a crude sexual

remark. (Id. ¶ 76). This prompted Plaintiff to call 911 and report Quiles to the police. (See id. ¶¶

77, 79, 84; Police Report, Pl. Ex. F, ECF No. 13-7). Quiles was allegedly removed as

superintendent, but remained a Guardian employee and was permitted to continue living inside

the apartment complex. (See Compl. ¶¶ 8-9, 83). After complaining about Quiles and filing a

police report against him, Plaintiff was allegedly given numerous disciplinary sanctions that

2 In his February 22, 2019 letter, Quiles disputes that he was Plaintiff’s manager, stating that he

“was a worker and nothing more.” (ECF No. 20, at 1).

were more severe than those given to similarly situated employees, culminating in her

constructive termination from Guardian. (See id. ¶¶ 51-69, 85-95).

Plaintiff filed a grievance with the Union, alleging sexual harassment. (See Pl. Ex. A, at

8, ECF No. 13-1; Pl. Ex. C). On November 3, 2017, the Union notified Plaintiff that they would

not bring a discrimination claim on her behalf due to her lack of “cooperation” in the

investigation. (Pl. Ex. C). On November 10, 2017, Plaintiff notified Guardian that she would

pursue her claims individually. (See Pl. Ex. D). The parties attempted without success to mediate

the dispute on February 22, 2018. (See Akin Decl. ¶ 13, ECF No. 13; Pl. Ex. D). Thereafter, on

March 27, 2018, Plaintiff filed a charge of discrimination with the Equal Employment

Opportunity Commission, which issued a right to sue letter on July 18, 2018. (See Pl. Ex. A; Pl.

Ex. E, ECF No. 13-6).3 Plaintiff commenced this lawsuit by filing a complaint on September 27,

2018. (ECF No. 1).

DEFENDANTS’ MOTION TO COMPEL ARBITRATION AND STAY OR,

ALTERNATIVELY, DISMISS PROCEEDINGS

On December 21, 2018, Guardian moved to compel arbitration and stay or, alternatively,

dismiss the proceedings. (See ECF No. 7). On March 12, 2019, Quiles, appearing pro se, moved

for the same relief and joined Guardian’s motion. (See ECF No. 29).4 Defendants argue that

3 “Generally, a right-to-sue letter is required when a private employee files a Title VII suit in

district court.” DiPetto v. U.S. Postal Service, 383 Fed. Appx. 102, 104 (2d Cir. 2010) (summary

order). The issuance of a right-to-sue letter does not imply a favorable view by the EEOC of the

merits of a claim. See Stephenson v. Smith, No. 11-CV-152 (RAJ), 2012 WL 7959235, at *1 n. 1

(E.D.N.Y. Mar. 2, 2012) (“The EEOC issues right to sue letters once its procedures are

concluded, regardless of the merits of the claim”).

4 Because the Clerk of Court previously entered a Certificate of Default against Quiles (see ECF

No. 12), Quiles’ motion to compel arbitration is a nullity unless grounds exist to set aside the

default under Federal Rule of Civil Procedure 55(c). As discussed below in relation to Quiles’

February 22, 2019 pro se motion, Quiles may not have been validly served in accordance with

Plaintiff’s claims are subject to mandatory arbitration under the terms of a collective bargaining

agreement (Pl. Ex. B, ECF Nos. 13-2, 13-3) (the “CBA”) between the Union and the Realty

Advisory Board on Labor Relations, Inc. (“RAB”), a multi-employer bargaining unit that

includes Guardian (see Def. Mem. at 1).5

Article V (“Grievance Procedure”) and Article VI (“Arbitration”) outline the CBA’s

grievance and arbitration machinery. (See CBA Arts. V, VI, at 13-20). Under these Articles, a

“grievance may first be taken up between a representative of management and a representative of

the Union,” and, “[i]f it is not settled, it may be filed for arbitration.” (Id. Art. V, § 3, at 14).

Article XIX § 23(A) of the CBA prohibits discrimination in violation of, inter alia, Title VII, the

NYSHRL, and the NYCHRL, and provides that “[a]ll such claims shall be subject to the

grievance and arbitration procedure” outlined in Articles V and VI. (Id. Art. XIX, § 23(A), at

106-107).6 Defendants argue that Plaintiff’s claims “are plainly covered” by this provision. (Def.

Federal Rule of Civil Procedure 4, which would be grounds to vacate the default. However, even

if his default were set aside, the motion to compel arbitration would be denied for the reasons set

forth herein.

5 Defendants also assert, in passing, a separate ground for dismissing this action: that Plaintiff

did not “exhaust[] her administrative remedies.” (Def. Mem. at 9). On close inspection, this is

simply a repackaging of their main argument that Plaintiff “ignored the mandatory … arbitration

procedures provided in the [] CBA.” (Id.).

6 The relevant provision states:

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, the Age Discrimination in

Employment Act, 42 U.S.C. Section 1981, Family and Medical Leave Act,

the New York State Human Rights Law, the New York City Human Rights

Code, or any other similar laws, rules or regulations. All such claims shall

be subject to the grievance and arbitration procedure (Articles V and VI)

Mem. at 2). However, the CBA provides that only the Union may bring a grievance on behalf of

an employee under Article V or demand that the grievance be arbitrated under Article VI. (See

CBA Art. V, § 4, at 14; Art. VI, § 2, at 16).7 Plaintiff therefore contends that the CBA only

requires arbitration of claims brought by the Union. (See Pl. Opp. at 11-14). Where the Union

declines to bring a grievance on an employee’s behalf, as it has done here, Plaintiff argues that

the CBA is no obstacle to the employee bringing her claim in court. (See id.).

This CBA is one of several that have been entered into between SEIU Local 32BJ and the

Union; all contain similarly-worded arbitration provisions. There has been much litigation over

the years as to how the seemingly broad scope of the CBA’s mandatory arbitration clause should

be reconciled with the fact that the CBA grants the Union the sole right to demand arbitration of

discrimination claims. In 2009, one such case reached the Supreme Court. See 14 Penn Plaza

LLC v. Pyett, 556 U.S. 247 (2009). In Penn Plaza, the plaintiffs, all of whom were members of

SEIU Local 32BJ, brought Age Discrimination in Employment Act (ADEA) claims in federal

court after the Union declined to pursue their age discrimination grievances under the CBA. See

id. at 251-253. The defendants, also members of RAB, moved to compel arbitration. See id. at

251, 254.

as [sic] sole and exclusive remedy for violations. (CBA Art. XIX, § 23(A),

at 106-107) (emphasis added).

7 Specifically, Article V § 4 states, in connection with the CBA’s grievance procedure, that “[a]ll

Union claims are brought by the Union alone and no individual shall have the right to

compromise or settle any claim without the written permission of the Union.” As used in this

clause, the phrase “Union claims” is most logically understood to mean claims asserted on behalf

of a Union member, as opposed to claims asserted on behalf of management. Because a claim

may not be arbitrated under Article VI unless it is first brought as a grievance under Article V

(see id. Art. V, § 3, at 14), this clause effectively vests the Union with the exclusive right to

demand arbitration of an employee’s claims. Furthermore, Article VI states that an arbitration

may be commenced by “the Union or the RAB”; it says nothing about commencement of

arbitration by an individual grievant. (Id. Art. VI, § 2, at 16).

In opposition to the motion, the plaintiffs, joined by the Union as amicus curiae, argued

that the CBA provided no mechanism for individual employees to demand arbitration if the

Union declines to arbitrate a claim on their behalf. See Br. for Respondents in Penn Plaza, No.

07-581, 2008 WL 2774462, at *44-*46 (July 14, 2008); Br. of the Service Employees

International Union, Local 32BJ, as Amicus Curiae in Support of Respondents in Penn Plaza,

No. 07-581, 2008 WL 2724312 (July 10, 2008). Among other things, the plaintiffs and the Union

emphasized that the CBA, by its clear and unambiguous terms, required “[a]ll Union claims” to

be “brought by the Union alone.” Br. for Respondents, at *44; Br. of SEIU Local 32BJ, at *14.

“Given the Union’s control over employee discrimination claims,” they argued, “the Plaintiffs

had no contractual right or ability ‘to arbitrate [their ADEA] claims ….’” Br. of SEIU Local

32BJ, at *18 (alterations in the original); see Br. for Respondents, at *45 (“[I]ndividual

employees have no power to invoke this CBA’s arbitration provision without Local 32BJ’s

consent and Local 32BJ’s control over the litigation. When, as here, Local 32BJ refuses to take

respondents’ claims to CBA arbitration, there is no arbitration to compel”).

A related yet conceptually distinct argument was advanced by the United States Solicitor

General, appearing as amicus curiae, and also adopted by the plaintiffs. The plaintiffs and the

Solicitor General argued that to interpret the CBA as foreclosing litigation once the Union has

refused to arbitrate an employee’s claim would be to deprive the plaintiffs of any forum—

judicial or arbitral—in which to “vindicat[e]” their rights. Br. for Respondents, at *30; see Br.

for the United States as Amicus Curiae Supporting Respondents in Penn Plaza, No. 07-581,

2008 WL 2817676, at *18-*19 (July 21, 2008). That result, they argued, would be unenforceable

on the principle that “substantive guarantees of federal anti-discrimination law are not waivable,”

Br. for United States, at *19, and that a compulsory arbitration clause embracing statutory causes

of action must permit the prospective litigant to “effectively … vindicat[e]” those rights in the

arbitral forum, Br. for Respondents, at *30 (quoting Gilmer v. Interstate/Johnson Lane Corp.,

500 U.S. 20, 28 (1991) and Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S.

614, 637 (1985)); accord Br. for United States, at *19.

In its decision, the Supreme Court agreed that “a substantive waiver of federally

protected civil rights will not be upheld.” Penn Plaza, 556 U.S. at 273. However, it declined to

explore whether the CBA actually prohibited the plaintiffs from demanding arbitration in their

individual capacities, as the plaintiffs and SEIU Local 32BJ argued. See id. at 272-273.

Likewise, it did not reach the merits of plaintiffs’ and the Solicitor General’s argument that “the

CBA operates as a substantive waiver of their ADEA rights because it … allows the Union to

block arbitration of these claims.” Id. at 273-274; see also id. at 285 (Souter, J., dissenting)

(noting that the Court “explicitly reserves the question whether a CBA’s waiver of a judicial

forum is enforceable when the union controls access to and presentation of employees’ claims in

arbitration”). As to both of these arguments, the Court found that the matter was insufficiently

preserved and beyond the scope of the question presented for review. See id. at 272-274.8

The questions reserved in Penn Plaza were directly addressed in a later case, Kravar v.

Triangle Services, Inc., No. 06-CV-7858 (RJH), 2009 WL 1392595 (S.D.N.Y. May 19, 2009).

The facts in Kravar were in all relevant respects identical to those present in Penn Plaza (and

8 The issue upon which the Supreme Court actually granted review in Penn Plaza was a narrow

question of law: “whether a provision in a collective-bargaining agreement that clearly and

unmistakably requires union members to arbitrate claims arising under the [ADEA] is

enforceable,” Penn Plaza, 556 U.S. at 251, a question it easily answered it in the affirmative, see

id. at 274. What the Court did not address was whether the particular CBA before it “clearly and

unmistakably” required arbitration of the plaintiffs’ claims. As the Court explained, the “lower

courts assumed that the CBA’s arbitration clause clearly applied to” plaintiffs’ claims, and the

Supreme Court “granted review of the question presented on that understanding.” Id. at 272-273.

this case). The plaintiff, Eva Kravar, brought discrimination claims against her employer under

Title VII, the Americans with Disabilities Act (ADA), and the NYCHRL. See 509 F.Supp.2d

407, 408 (S.D.N.Y. 2007). Prior to filing suit, the plaintiff sought to arbitrate her claims under

the CBA, but “the union declined to prosecute her claims[.]” 2009 WL 1392595, at *3. The CBA

in Kravar, like the one in Penn Plaza, precluded the plaintiff from demanding arbitration of her

claim on an individual basis. See id. at *2. Therefore, the court denied the defendant’s motion to

compel arbitration, holding that the record “support[ed] a single conclusion: The CBA here

operated to preclude Ms. Kravar from raising her disability-discrimination claims in any forum.

As such, the CBA operated as a waiver over Ms. Kravar’s substantive rights, and may not be

enforced.” Id. at *3 (emphasis in original). In essence, the Kravar court endorsed the argument

that the Supreme Court left unaddressed in Penn Plaza: that “the CBA operates as a substantive

waiver of [the plaintiffs’ statutory] rights [to the extent that it] allows the Union to block

arbitration of those claims.” Penn Plaza, 556 U.S. at 273.

Several cases addressing materially identical CBAs have concurred in Kravar’s analysis

and held an employee may litigate a statutory discrimination claim where the Union has declined

to submit it to arbitration under the CBA, lest the CBA operate as a waiver of the employee’s

federally-protected civil rights. See Borrero v. Ruppert Housing Co., Inc., No. 08-CV-5869

(HB), 2009 WL 1748060, at *2 (S.D.N.Y. Jun. 19, 2009) (“Should Borrero’s attempts to

arbitrate his claims be thwarted by the Union, the CBA will have operated as a ‘substantive

waiver’ of his statutorily created rights and he will have the right to re-file his claims in federal

court”); Morris v. Temco Service Industries, Inc., No. 09-CV-6194 (WHP), 2010 WL 3291810,

at *5-*6 (S.D.N.Y. Aug. 12, 2010) (addressing facts similar to Kravar and adopting its

reasoning); Canales v. ACP Facility Services, Inc., No. 17-CV-6937 (DRH) (AYS), 2019 WL

1171479, at *5 (E.D.N.Y. Mar. 13, 2019) (following Kravar and Morris and denying motion to

compel arbitration, but dismissing plaintiff’s claims on the grounds that she did not “giv[e] the

Union an opportunity to pursue” her claim in the first place). More generally, courts have held

that, “where the submission of a statutory claim to arbitration is exclusively within the province

of the union and the union declines to pursue the matter, the waiver of an employee’s right to a

judicial forum is unenforceable.” de Souza Silva v. Pioneer Janitorial Services, Inc., 777

F.Supp.2d 198, 206 (D. Mass. 2011); see Alfonso v. Maggies Paratransit Corp., 203 F.Supp.3d

244, 250-251 (E.D.N.Y. 2016); Drake v. Hyundai Rotem USA, Corp., No. 13-CV-868 (RLB),

2013 WL 4551228, at *5-*6 (E.D. Pa. Aug. 28, 2013); Brown v. Services for the Underserved,

No. 12-CV-317 (JG), 2012 WL 3111903 (E.D.N.Y. Jul. 31, 2012).9

This case presents an added layer of complexity, however. On February 17, 2010, after

Penn Plaza and Kravar were decided, the Union and RAB amended the CBA by adding a new

provision, referred to as the No-Discrimination Protocol (CBA Art. XIX, § 23(B), at 107-115)

(the “No-Discrimination Protocol” or the “Protocol”). Among other things, the Protocol

creates a vehicle for individual employees to arbitrate their discrimination claims if the Union

declines to represent them. (See id. § 23(B)(3), at 113-115). The Protocol’s arbitration clause is

permissive, not mandatory: it does not explicitly require an employee to utilize its procedures if

9 Notably, while the Supreme Court has only said that a “substantive waiver of [a] federally

protected civil right[] will not be upheld,” Penn Plaza, 556 U.S. at 273 (emphasis added), Kravar

and its progeny have made no distinction between federal and state anti-discrimination statutes.

See Kravar, supra (denying motion to compel arbitration of claims under Title VII, ADA, and

NYCHRL); Morris, supra (following Kravar and denying motion to compel arbitration of claims

under Title VII, NYSHRL, and NYCHRL); Canales, 2019 WL 1171479, at *5 (following

Kravar and Morris and denying motion to compel arbitration of claims brought solely under the

NYSHRL).

the employee does not wish to do so.10 Nevertheless, by providing an avenue for an employee to

demand arbitration in their individual capacities, it could be argued that the Protocol cures the

10 Defendants dispute this, claiming that the Protocol’s arbitration provision is in fact mandatory.

(See Def. Mem. at 7; Def. Reply at 3, 6, ECF No. 18, at 5, 8). But this is a misreading of the

provision in question, which states as follows:

(3) Arbitration

(a) The undertakings described here with respect to arbitration apply to

those circumstances in which the Union has declined to take an individual

employee’s employment discrimination claim under the no discrimination

clause of the CBA (including statutory claims) to arbitration and the

employee is desirous of litigating the claim. The forum described here will

be available to employers and employees who are represented by counsel

and to those who are unrepresented by counsel.

(b) The Union and the RAB have elicited from the American Arbitration

Association (“AAA”) a list of arbitrators who (1) are attorneys, and (2) are

qualified to decide employment discrimination cases. In the event that an

employee and RAB member employer seek arbitration of a discrimination

claim in the circumstances described in paragraph A, the list of arbitrators

provided by the AAA shall be made available to the individual employee

and the RAB member employer by the administrator of OCA. The manner

by which selection is made by the RAB member employer and the

individual employee and the extent to which each shall bear responsibility

for the costs of the arbitrator shall be decided between them. A person may

be added to or removed from the Statutory Arbitration Panel list upon

mutual agreement of the Union and the RAB. Any such arbitrations shall be

conducted pursuant to the AAA National Rules for Employment Disputes,

except those rules pertaining to administration by the AAA and the payment

of fees, and any disputes about the manner of proceeding shall be decided

by the arbitrator selected.

(CBA Art. XIX, § 23(B)(3)(a)-(b), at 113-114).

Nothing in these clauses compels an individual employee to submit to arbitration. Instead, this

subsection merely makes “available to the individual employee” the resources described in

subparagraph (b)—including AAA arbitrators—whenever “an employee and RAB member

employer seek arbitration of a discrimination claim.” In the absence of any mandatory language,

this arbitration provision must be construed as permissive.

defect in the CBA identified in Kravar and its progeny. This argument, however, would be

mistaken.

Critical to understanding the Protocol is the following language, which is contained in the

preface to the Protocol itself:

As background, following the decision of the Supreme Court in 14 Penn

Plaza, 556 U.S. 247 (2009), the RAB and the Union have had a dispute

about the meaning of the “no discrimination clause” and the grievance and

arbitration clauses in the collective bargaining agreements (“CBAs”)

entered into between these parties. 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. 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.

…

Notwithstanding the above disagreement, in 2010, the parties initiated the

pilot program provided for in this section (Agreement and Protocol,

February 17, 2010, the “No Discrimination Protocol”) as an alternative to

arbitrating their disagreement. The parties have now agreed to include the

No-Discrimination Protocol as part of this Agreement, as set forth below.

The Union and the RAB agree that the provisions of this Protocol do not

resolve the reserved question. Neither the inclusion of this Protocol in the

CBAs nor the terms of the Protocol shall be understood to advance either

party’s contention as to the meaning of the CBAs with regard to the

reserved question, and neither party will make any representation to the

contrary.

(CBA Art. XIX, § 23(B)(1), at 108-110) (emphasis added). As the emphasized language above

makes it clear, neither the “inclusion” of the Protocol, “nor [its] terms,” “shall be understood to

advance either party’s contention” with respect to the so-called “reserved question”—that is, the

question of whether claims brought by individual employees are subject to compulsory

arbitration. (Id. at 110). Thus, although default rules of contractual interpretation would require

the Court to examine the CBA “as a whole,” Bozetarnik v. Mahland, 195 F.3d 77, 82 (2d Cir.

1999); see also Global Reinsurance Corp. of America v. Century Indemnity Co., 30 N.Y.3d 508,

517 (2017), the Protocol demands that we put on blinders, resolving the issue as if it simply did

not exist.

When we remove the Protocol from our analysis, this case becomes virtually

indistinguishable from Kravar. Here, as in Kravar, the CBA, excised of the Protocol, grants the

Union the sole right to bring an employee grievance or demand that it be arbitrated. In the

absence of language permitting an individual employee to demand arbitration herself, where the

Union has refused to bring a grievance, there is simply “no arbitration to compel.” Br. for

Respondents in Penn Plaza, at *45. Thus, as in Kravar and kindred cases, the CBA must be

construed as preserving an employee’s right to litigate their statutory discrimination claims

where the Union has declined to arbitrate the claim under the CBA. See Kravar, 2009 WL

1392595, at *3; Morris, 2010 WL 3291810, at *5-*6; Canales, 2019 WL 1171479, at *5. A

contrary interpretation would entrust the protection of an employee’s statutory rights under Title

VII entirely to the whims of the Union. And, as the Supreme Court recently warned, “when a

union controls the grievance process, it may, as a practical matter, effectively subordinate ‘the

interests of an individual employee … to the collective interests of all employees in the

bargaining unit.’ ” Janus v. American Federation of State, County, and Mun. Employees, Council

31, 138 S.Ct. 2448, 2468 (2018) (quoting Alexander v. Gardner-Denver Co., 415 U.S. 36, 58 n.

19 (1974)). Furthermore, if the Union declines to arbitrate a claim of discrimination under Title

VII, the CBA’s mandatory arbitration provision, if construed expansively to cover individual

employee claims, would deprive those employees from vindicating their statutory rights in any

forum. Ample precedent makes clear that this is an unacceptable result. See Penn Plaza, 556

U.S. at 273 (“[A] substantive waiver of federally protected civil rights will not be upheld”);

American Exp. Co. v. Italian Colors Restaurant, 570 U.S. 228, 235-236 (2013) (collecting

cases); In re American Exp. Merchants’ Litigation, 681 F.3d 139, 140-141 (2d Cir. 2012) (same).

As the Second Circuit has stated:

[A] federal court will compel arbitration of a statutory claim only if it is

clear that “the prospective litigant effectively may vindicate its statutory

cause of action in the arbitral forum,” such that the statute under which its

claims are brought “will continue to serve both its remedial and deterrent

function.” Mitsubishi, 473 U.S. at 637 [] . Thus, as the Supreme Court stated

in Mitsubishi, if certain terms of an arbitration agreement served to act “as

a prospective waiver of a party’s right to pursue statutory remedies … , we

would have little hesitation in condemning the agreement as against public

policy.” Id. at 637 n. 19 [] .

Ragone v. Atlantic Video at Manhattan Center, 595 F.3d 115, 125 (2d Cir. 2010).

To be sure, this is a counterintuitive outcome. The lynchpin of Kravar’s analysis is that

the CBA between the Union and RAB makes no provision for employees to arbitrate their

discrimination claims. But the No-Discrimination Protocol, adopted after Kravar was decided,

explicitly includes an option for employees to arbitrate their claims. The answer to this riddle lies

in the Protocol’s statement that neither its “inclusion” nor its “terms” shall “advance either

party’s contention” as to whether individual employee claims must be arbitrated. (CBA Art.

XIX, §23(B)(1), at 110). After all, the Protocol was not intended to “resolve the reserved

question.” (Id.). Instead, it is more sensibly understood as having frozen in place the parties’ pre-

existing disagreement as to the meaning of the pre-Protocol CBA, leaving it for future courts to

decide, while offering a voluntary arbitration mechanism in those cases where arbitration was

desired.

Resisting this conclusion, Defendants cite a handful of district court cases that have

compelled arbitration under a substantially identical CBA. See Lobban v. Cromwell Towers

Apartments, Limited Partnership, 345 F.Supp.3d 334 (S.D.N.Y. 2018); Favors v. Triangle

Servs., 207 F.Supp.3d 197, 204 (E.D.N.Y. 2016); Sajdlowska v. Guardian Service Industries,

Inc., No. 16-CV-3947 (PAE), 2016 WL 7015755 (S.D.N.Y. Dec. 1, 2016); Begonja v. Vornado

Realty Trust, 159 F.Supp.3d 402 (S.D.N.Y. 2016); Okuma v. Crotona Park West Hous. Dev.

Fund Corp., No. 14-CV-239 (DAB), Dkt No. 19 (S.D.N.Y. Sept. 29, 2014); Germosen v. ABM

Industries Corp., No. 13-CV-1978 (ER), 2014 WL 4211347 (S.D.N.Y. Aug. 24, 2014); Bouras

v. Good Hope Management Corp., No. 11-CV-8708 (WHP), 2012 WL 3055864, at *4 (S.D.N.Y.

Jul. 24, 2012); Duraku v. Tishman Speyer Properties, Inc., 714 F.Supp.2d 470, 474 (S.D.N.Y.

2010); Garcia v. Frank, No. 09-CV-4599 (BSJ), Dkt No. 17 (S.D.N.Y. Jul. 28, 2010).

Some of these cases are entirely distinguishable. In Favors and Begonja, the plaintiffs

made no showing that the Union had actually declined to arbitrate Plaintiff’s claims. See Favors

207 F.Supp.3d at 203; Begonja, 159 F.Supp.3d at 411. And in Sajdlowska, the plaintiff in that

case conceded that “her discrimination claims [fell] within the scope of the CBA’s mandatory

arbitration clause.” 2016 WL 7015755, at *4.

To the extent that these cases are not distinguishable, they are unpersuasive. In Lobban,

the court compelled arbitration after reading the Protocol’s arbitration provision as mandatory

rather than permissive. See 345 F.Supp.3d at 348-349. Duraku interpreted the Protocol the same

way, see 714 F.Supp.2d at 474, and Garcia followed Duraku, see No. 09-CV-4599, Dkt No. 17,

at 9. But, as previously noted, the Court does not read the Protocol’s arbitration provision to be

compulsory. See supra note 10; see also Germosen, 2014 WL 4211347, at *3 (reading the

Protocol’s arbitration clause as “permit[ting] the individual employee to arbitrate the claim on

his own”).

In Okuma, the court enforced the arbitration provision based on its understanding that an

identical provision was enforced in Penn Plaza. See Okuma, No. 14-CV-239, Dkt No. 19, at 13-

14. However, the argument that the CBA was an impermissible “substantive waiver” was not

explored on the merits in Penn Plaza, as the dissent in that case was careful to note. See Penn

Plaza, 556 U.S. at 285 (Souter, J., dissenting); see also Begonja, 159 F.Supp.3d at 409-410

(“[T]he Supreme Court in [Penn Plaza] declined to reach respondents’ separate argument that

the agreement at issue there operated as a substantive waiver of their statutory rights because the

Union was able to block arbitration of ADEA claims”). Okuma is therefore not a persuasive

counterpoint to Kravar and similar cases, which rely on this “substantive waiver” argument.

In Bouras, the court compelled arbitration in part by reasoning that, due to the addition of

the Protocol, the CBA no longer prohibits employees from bringing discrimination claims on an

individual basis (as it did when Kravar and Morris were decided). See 2012 WL 3055864, at *4.

Germosen relies on the same reasoning. See 2014 WL 4211347, at *7 n. 19. But neither of these

cases discussed the important proviso that neither the Protocol’s “inclusion” nor its “terms”

should be understood to alter the meaning of the CBA with respect to whether arbitration of

individual employee claims is compulsory. (CBA Art. XIX, § 23(B)(1), at 110). As the Court has

previously mentioned, the CBA must be analyzed in the absence of the Protocol in order to give

effect to these words.

Finally, in its reply brief, Guardian raises a novel argument: that the question of whether

Plaintiff’s claims are subject to mandatory arbitration is itself arbitrable under the Protocol. (See

Def. Reply at 3; CBA Art. XIX, § 23(A)(1), at 109). An arbitration agreement may, of course,

delegate threshold questions of arbitrability to an arbitrator. See Henry Schein, Inc. v. Archer and

White Sales, Inc., 139 S.Ct. 524, 527 (2019). Here, the Protocol contains a delegation clause

stating, in relevant part, that:

[S]hould either the Union or the RAB deem it appropriate or necessary to

do so, that party may bring to arbitration the question so reserved. The

parties intend that the reserved question may only be resolved in an

arbitration between them and not in any form of judicial proceeding.

(CBA Art. XIX, § 23(A)(1), at 109). But Guardian waived enforcement of the CBA’s delegation

clause when it asked the Court, in its opening papers, to rule directly on the “reserved question”

by holding that Plaintiff’s underlying claims are arbitrable. See Fisher v. Kanas, 487 F.Supp.2d

270, 278 (E.D.N.Y. 2007) (arguments raised for the first time in a reply brief may be deemed

waived). In any event, the delegation clause by its terms may be invoked solely by “the Union or

the RAB,” and it only contemplates an arbitration proceeding “between them”—that is, between

the Union and RAB. (CBA Art. XIX, § 23(A)(1), at 109). Defendants obviously cannot compel

the Union and RAB, neither of whom is a party to this litigation, to commence arbitration

proceedings. The Court is therefore unpersuaded by Defendants’ delegation clause argument.

For the foregoing reasons, Defendants’ motion to compel arbitration and stay or dismiss

the proceedings is denied.

QUILES’ PRO SE MOTION

On January 4, 2019, the Honorable James Orenstein found that Plaintiff “ha[d] not filed

proof of timely service of the summons and complaint” on Quiles and directed Plaintiff to file

proof of service on Quiles within one week. (1/4/2019 Electronic Order). Later that same day,

Plaintiff filed an Affidavit of Service stating that a copy of the summons and complaint was

served upon the “Concierge” at Quiles’ apartment building on October 12, 2018 and mailed to

his apartment address on October 15, 2018. (ECF No. 9). The Affidavit of Service does not say

whether the process server sought access to Quiles’ actual apartment. On January 9, 2019, after

the Affidavit of Service was filed, Judge Orenstein directed Plaintiff to file a request for a

Certificate of Default within two weeks unless Quiles filed an answer or the parties filed a

stipulation extending his time to answer. (See id.). Plaintiff filed a request for a Certificate of

Default on January 14, 2019 (ECF No. 10), and the Clerk of Court filed a Certificate of Default

on January 17, 2019 (ECF No. 12).

Following entry of default, the Court received a pro se letter from Quiles, dated February

22, 2019, in which he states that he “was not served with any papers in this case” and did not

learn of the case until “late last month,” i.e., January 2019. (ECF No. 20, at 1). He alleges that

“[t]he copy of the service certificate is false because I reviewed the video tapes, and no one

served papers to me, as the service certificate claims.” (Id.).

A “party appearing without counsel is afforded extra leeway in meeting the procedural

rules governing litigation.” In re Sims, 534 F.3d 117, 133 (2d Cir. 2008) (quoting Enron Oil

Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993)). “[C]ourts are … to construe a pro se

litigant’s pleadings and motions liberally.” Id. (citing Haines v. Kerner, 404 U.S. 519, 520

(1972)). Here, Quiles’ February 22, 2019 correspondence may be liberally construed as a motion

to dismiss under Rule 12(b)(5) of the Federal Rules of Civil Procedure for insufficient service of

process. See Bruccoleri v. Gangemi, No. 18-CV-7443 (ILG), 2019 WL 499769, at *3 n. 2

(E.D.N.Y. Feb. 8, 2019) (“[T]he proper vehicle to dismiss an action for insufficient service of

process is Rule 12(b)(5)….”)

In order for personal jurisdiction over Quiles to exist, he must have been properly served

with a copy of the summons and complaint in accordance with Rule 4 of the Federal Rules of

Civil Procedure. See Omni Capital Intern., Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104

(1987) (“Before a federal court may exercise personal jurisdiction over a defendant, the

procedural requirement of service of summons must be satisfied”); American Telephone &

Telepgraph Co. v. Merry, 592 F.2d 118, 126 (2d Cir. 1979). The fact that a defendant has

defaulted under Rule 55 does not relieve the court of the obligation to ensure that personal

jurisdiction exists. See City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 136 n. 22

(2d Cir. 2011) (where a “defendant fail[s] to answer the complaint but later contest[s] the entry

of default judgment against it, … the district court [is] bound to inquire into personal jurisdiction

before entering judgment”) (citing Credit Lyonnais Securities (USA), Inc. v. Alcanatar, 183 F.3d

151 (2d Cir. 1999)); Golden Ring International, Inc. v. Cullen, No. 18-CV-1244 (DNH), 2019

WL 4015638, at *6 (N.D.N.Y. Aug. 26, 2019) (“On [defaulting] defendants’ motion, … it

becomes the court’s duty to consider whether it has personal jurisdiction over the defendants”).

In considering a motion to dismiss pursuant to Rule 12(b)(5), “[t]he plaintiff bears the burden of

proving those facts that rendered service of process adequate.” Bruccoleri, 2019 WL 499769, at

*3.

Rule 4(e) provides, in relevant part, that an individual may be served by:

(1) following state law for serving a summons in an action

brought in courts of general jurisdiction in the state where the district

court is located or where service is made; or

(2) doing any of the following:

(A) delivering a copy of the summons and of the

complaint to the individual personally;

(B) leaving a copy of each at the individual’s dwelling or

usual place of abode with someone of suitable age and

discretion who resides there; or

(C) delivering a copy of each to an agent authorized by

appointment or by law to receive service of process.

Fed. R. Civ. P. 4(e).

Paragraph (2) is inapplicable to the facts of this case. Subparagraph (2)(B) provides that

an individual may be served by leaving the document “at the individual’s dwelling or usual place

of abode with someone of suitable age and discretion who resides there[.]” Fed. R. Civ. P.

4(e)(2)(B) (emphasis added). Here, however, the Affidavit of Service states that the summons

and complaint was delivered to the building’s “[c]oncierge,” not to a resident. (ECF No. 9).

Subparagraphs (2)(A) and (C) are likewise inapplicable, as service was neither effected upon

Quiles personally, nor upon his authorized agent.

Therefore, if service is to be deemed adequate, it must be permissible under New York’s

rules for service of process. See Fed. R. Civ. P. 4(e)(1). The only potentially applicable provision

is Section 308(2) of the New York Civil Practice Law and Rules (“CPLR”), which provides, in

relevant part, that an individual may be served:

by delivering the summons within the state to a person of suitable age and

discretion at the actual place of business, dwelling place or usual place of

abode to the person to be served and by either mailing the summons to the

person to be served at his or her last known residence or by mailing the

summons by first class mail to the person to be served at his or her actual

place of business.

CPLR § 308(2). Unlike Rule 4(e)(2)(B) of the Federal Rules of Civil Procedure, CPLR § 308(2)

does not require that a person served at the individual’s dwelling place or usual place of abode be

someone who actually resides there. See New Y-Capp, Inc. v. Arch Capital Funding, LLC, No.

18-CV-3223 (ALC), 2019 WL 4805897, at *5 (S.D.N.Y. Sept. 29, 2019).

As a general rule, the “actual dwelling place” or “usual place of abode” of a tenant in an

apartment building is restricted to the tenant’s actual apartment, as opposed to the lobby or

common areas. See Bruccoleri, 2019 WL 499769, at *4. However, if “access to the person’s

actual apartment is limited, … service upon a doorman in the lobby constitutes service at the

person’s residence under CPLR § 308(2).” Id. (citing F. I. duPont, Glore Forgan & Co. v. Chen,

41 N.Y.2d 794, 797 (N.Y. 1977) (“[I]f a process server is not permitted to proceed to the actual

apartment by the doorman or some other employee, the outer bounds of the actual dwelling place

must be deemed to extend to the location at which the process server’s progress is arrested”)).

Here, the Affidavit of Service does not indicate whether the process server was allowed to

proceed past the lobby of Quiles’ building to the threshold of his apartment. Therefore, it is

unclear whether delivery of the summons and complaint to Quiles’ concierge constituted valid

service under CPLR § 308(2) and, hence, Rule 4(e)(1).

Under New York law, a traverse hearing is required where, as here, genuine issues of fact

exist as to whether service was properly made. See Bruccoleri, 2019 WL 499769, at *4; CSC

Holdings, Inc. v. Fung, 349 F.Supp.2d 613, 618 (E.D.N.Y. 2004). Accordingly, the Court will set

the matter down for a hearing unless one of the following occurs within thirty (30) days of the

date of this order: (1) Plaintiff files an updated Affidavit of Service establishing that the

concierge of Quiles’ building was the location at which “the process server’s progress [was]

arrested” when service was attempted on October 12, 2018, F. I. duPont, 41 N.Y.2d at 797, or

(2) Plaintiff re-effectuates service of process on Quiles in accordance with Rule 4 and files proof

of such service with the Court.11

CONCLUSION

For the foregoing reasons:

1. Defendants’ motion to compel arbitration and stay or, alternatively, dismiss the

proceedings is DENIED; and

2. Quiles’ pro se correspondence is construed as a motion to dismiss pursuant to

Rule 12(b)(5), and the motion shall be set down for a hearing unless, within thirty (30) days of

the date of this order: (1) Plaintiff files an updated Affidavit of Service establishing that the

concierge of Quiles’ building was the location at which the process server’s progress was

11 Under Rule 4(m), the Court has discretion to extend the time for service of process to be

effected. See Ebanks v. Ebanks, No. 07-CV-314 (KMK), 2007 WL 2591196, at *1 (S.D.N.Y.

Sept. 6, 2007).

arrested when service was attempted on October 12, 2018, or (2) Plaintiff re-effectuates service

of process on Quiles in accordance with Rule 4 and files proof of such service with the Court.

SO ORDERED.

Dated: Brooklyn, New York

October 18, 2019

/s

I. Leo Glasser U.S.D.J.