CONDE v. Steven Frucht, Defendant. (2005)

Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered April 21, 2004, which denied the motion of defendant Yeshiva University (YU) to dismiss the complaint, unanimously modified, on the law, the causes of action for negligent hiring, supervision, training and retention of an unfit employee, for vicarious assault and battery, and for intentional infliction of emotional distress by YU, dismissed, and otherwise affirmed, without costs.

 Plaintiffs are not obligated to arbitrate their employment discrimination claims because the collective bargaining agreement (CBA) does not clearly and unmistakably waive their statutory right to a judicial forum (see Wright v. Universal Mar. Serv. Corp., 525 U.S. 70, 79-80, 119 S.Ct. 391, 142 L.Ed.2d 361 [1998] ).   The CBA's general arbitration clause provides for arbitration of “Any dispute, difference, or controversy related to wages, hours and working conditions,” which could be understood to mean only disputes concerning matters under the contract (see id. at 80, 119 S.Ct. 391;  cf. Matter of Ball [SFX Broadcasting], 236 A.D.2d 158, 665 N.Y.S.2d 444 [1997], lv. denied 92 N.Y.2d 803, 677 N.Y.S.2d 73, 699 N.E.2d 433 [1998] ).   Although another portion of the CBA required the agreements to be subject to all applicable laws in effect, it lacked the necessary explicit incorporation of statutory antidiscrimination requirements to presume arbitrability (see Wright v. Universal Mar. Serv. Corp., supra, 525 U.S. at 81, 119 S.Ct. 391;  cf. Circuit City Stores v. Adams, 532 U.S. 105, 109-110, 121 S.Ct. 1302 [2001] ).   That YU's CBA contained a nondiscrimination provision, in contrast to the CBA in Wright, does not make any waiver of the right to a judicial forum “clear and unmistakable.”   Nor do we find apposite Butler Mfg. Co. v. United Steelworkers of Am., 336 F.3d 629, 633-634 [7th Cir.2003], particularly in light of the fact that the court there did not compel the employee to submit to arbitration, but rather found that the arbitrator had the power under the CBA to arbitrate particular statutory claims after both parties had initially agreed to do so.

 YU did procure workers' compensation coverage for plaintiffs, as was undisputed at oral argument.   The claim for negligent hiring and retention must thus be dismissed due to the exclusivity of remedy under the Workers' Compensation Law (§ 11, § 29[6];  Burlew v. American Mut. Ins. Co., 63 N.Y.2d 412, 416, 482 N.Y.S.2d 720, 472 N.E.2d 682 [1984] ).

 The court erred in declining to dismiss the assault and battery causes of action brought under the doctrine of respondeat superior.   Defendant Frucht clearly acted beyond the scope of his employment, motivated by private concerns that were not even remotely related to any conduct YU could have foreseen in the performance of his duties (see Dykes v. McRoberts Protective Agency, 256 A.D.2d 2, 680 N.Y.S.2d 513 [1998] ).

Plaintiffs' claim for intentional infliction of emotional distress should also have been dismissed as against YU, where their remedy for damages has been preserved in the surviving statutory claims for sexual harassment and retaliation (McIntyre v. Manhattan Ford, Lincoln-Mercury, 256 A.D.2d 269, 270, 682 N.Y.S.2d 167 [1998], lv. denied 94 N.Y.2d 753, 700 N.Y.S.2d 427, 722 N.E.2d 507 [1999] ).