Pepaj v. Innovative Facility Service

Background

Valbona Pepaj sued Innovative Facility Service, LLC and her former supervisor, Alex Cabral, alleging employment discrimination based on sex, including termination, unequal treatment, retaliation, and harassment under Title VII of the Civil Rights Act, the New York State Human Rights Law, and the New York City Human Rights Law. Pepaj represented herself. Innovative terminated her employment on September 5, 2019. She submitted a termination grievance through Service Employees International Union Local 32BJ, but the union declined to take the grievance to arbitration. Pepaj appealed that decision within the union and later filed a charge with the National Labor Relations Board, which dismissed her charge.

Pepaj filed her first charge with the Equal Employment Opportunity Commission on November 18, 2021, more than two years after her termination. The EEOC issued a right-to-sue notice on December 1, 2021, and sent another copy in June 2023. Pepaj filed this lawsuit on August 14, 2023.

Arbitration ruling

The collective bargaining agreement covering Pepaj’s employment stated that discrimination claims were subject to mediation and arbitration as the exclusive remedy. Its No Discrimination Protocol allowed an individual employee to pursue arbitration if the union declined to do so. The agreement also required an employee who wanted to bypass the protocol and sue in court to provide written notice to the employer and the Realty Advisory Board on Labor Relations.

The court held that the agreement clearly required Pepaj to arbitrate her Title VII, New York State Human Rights Law, and New York City Human Rights Law claims. The court rejected Pepaj’s argument that the union’s refusal to arbitrate allowed her to proceed in court because the agreement permitted her to pursue arbitration without the union. The court granted defendants’ motion to compel arbitration under the Federal Arbitration Act and stayed this action pending arbitration. The parties were directed to submit a joint status letter about the arbitration by June 17, 2025.

Alternative dismissal recommendation

Magistrate Judge Barbara Moses separately considered defendants’ request to dismiss the claims. She concluded that Pepaj’s Title VII claim was clearly time-barred because she filed her EEOC charge 805 days after her employment ended, rather than within the required 300 days. She rejected Pepaj’s arguments for extending that deadline based on her limited English skills, the COVID-19 pandemic, and her communications with the union and the National Labor Relations Board. The court stated that the Title VII claim should be dismissed under Rule 12(b)(6), which permits dismissal for failure to state a legally sufficient claim.

Because the Title VII claim was the only federal claim, Judge Moses recommended declining supplemental jurisdiction over the state and city claims. However, this portion was conditional: she recommended that, if Pepaj successfully objected to the arbitration ruling, the Title VII claim be dismissed with prejudice as time-barred and the New York State Human Rights Law and New York City Human Rights Law claims be dismissed without prejudice under Rule 12(b)(1). The opinion gave the parties 14 days to file objections with Judge Cronan.