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Schwartz Perry & Heller LLP December 21 2007 Plaintiffs Prevail in Motion To Dismiss Summary

PLAINTIFFS PREVAIL IN MOTION TO DISMISS SUMMARY JUDGMENT AND MOTION TO COMPEL ARBITRATION

DECEMBER 21, 2007

Schwartz Perry & Heller LLP is pleased to report that our firm successfully defended against a motion to dismiss, a motion for summary judgment and a motion to compel arbitration pursuant to a collective bargaining agreement, all which were made by a defendant in an action in which our clients asserted claims for gender discrimination and retaliation. The action was brought in the U.S. District Court, Southern District of New York. Hon. Deborah A. Batts wrote the Memorandum and Order, dated Dec. 21, 2007. It is a decision that we believe might well be of interest to our colleagues.

The Court, in denying the defendant's motion to dismiss the discrimination claim under the New York City Human Rights Law, citing Farrugia v. North Shore Univ. Hosp., 13 Misc.3d 740, 747 (Sup. Ct., N.Y. Co. 2006), observed that New York State Courts have recognized that the New York City Human Rights Law was intended to be more protective than the state and federal counterparts. The court also observed, citing Jordan v. Bates Advertising, Inc., 11 Misc.3d 764, 770 (Sup. Ct., N.Y. Co. 2006), that "in enacting the more protective Human Rights Law , the New York City Council has exercised a clear policy choice" which the court was bound to honor. The Court also opined, citing Jordan, that the legislative history of New York City's Administrative Code "clearly contemplates that the New York City Human Rights Law be liberally and independently construed with the aim of making it the most progressive in the nation."

The defendant also moved to compel arbitration based on a provision in one of the plaintiffs' collective bargaining agreement which stated that any claims under federal and state anti-discrimination statutes "shall be subject to the grievance and arbitration procedure...as the sole and exclusive remedy for the violations." In denying the defendant's Motion to Compel Arbitration, the court found that "there is no basis for the Court to conclude that Selmanovic personally ever waived her right to raise her New York City Human Rights Law claims in a federal forum." The court cited the Second Circuit cases of Pyette v. Pennsylvania Building Corp., 498 F.3d 88, 92 (2d Cir. 2007) and Kravar v. Triangle Services, Inc., 509 F.Supp.2d 407, 409 (S.D.N.Y. 2007), which held that a union-negotiated mandatory arbitration agreement purporting to waive a covered worker's right to a federal forum with respect to statutory rights is unenforceable.

The decision can be read by clicking here.

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