New York partner Claudia A. Costa successfully argued a motion to dismiss in an employment discrimination case filed by a former union member and former employee of a New York City residential building management company.
Plaintiff, a self-identified African American and lesbian, originally filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) alleging violation of federal, state and city discrimination laws. When the EEOC dismissed her charge, plaintiff filed suit asserting claims of discrimination, retaliation and wrongful termination based on her sex, race, and/or sexual orientation.
Costa filed a motion to dismiss arguing plaintiff failed to exhaust her grievance remedies through mandatory arbitration as required by the governing collective bargaining agreement (“CBA”). Plaintiff contended the Defendant should be collaterally estopped from arguing this failure because the union, the Realty Advisory Board ("RAB") and the CBA were notified of her claims, but failed to appoint a mediator or arbitrator as mandated by the CBA.
The court found neither the RAB nor the union were authorized under the CBA to appoint a mediator, and plaintiff had failed to show she exhausted alternative avenues to resolve her discrimination claims before litigation. The court granted Costa’s motion to dismiss the complaint.