Home -> Law Blog Directory -> Labor & Employment Law Blogs -> New York Public Personnel Law

Labor & Employment Law

: New York Public Personnel Law

State Division of Human Rights bound by arbitrator?s findings absent independent additional factual findings

State Division of Human Rights bound by arbitrator?s findings absent independent additional factual findings
Matter of New York State Dept. of Labor (unemployment Ins. Appeal Board) v New York State Div. of Human Rights, 2010 NY Slip Op 01854, Decided on March 11, 2010, Appellate Division, Third Department

In May 1991 Cynthia T. Lowney was appointed by the New York State Department of Labor to serve as an Administrative Law Judge for the Unemployment Insurance Appeal Board. In April 1992, Lowney's employment was terminated.

Lowney filed grievances both before and after her discharge, including grievances alleging that her termination was in retaliation for her complaints to the Department of Labor?s Division of Equal Opportunity Development. Ultimately these grievances were e consolidated and heard by an arbitrator as part of the final step in the grievance process.

The arbitrator issued a decision in March 1996 awarding Lowney $1,200 because of the Department?s failure to investigate her claims of discrimination, but dismissing the balance of Lowney's grievances, including her claim of retaliatory discharge.

While the arbitrations were pending Lowney filed a complaint with the State Division of Human Rights in April 1992.* In April 1996, SDHR issued a probable cause determination and, in April 2004, some 12 years after Lowney's complaint was filed, a public hearing on the matter was finally commenced. SDHR ultimately issued an alternative proposed order in March 2007 finding Labor guilty of retaliatory discharge and ordering, among other things, that petitioner pay Lowney $46,656 in back pay, with interest accruing thereon from March 1, 1993 at a rate of 9% per year, $50,000 as compensation for mental anguish, and out-of-pocket expenses she incurred because of her wrongful termination.

Labor appealed, contending that SDHR improperly failed to dismiss Lowney's complaint based on res judicata and collateral estoppel as a result of the March 1996 arbitration decision.

The Appellate Division said ?There is no question that these principles apply to awards in arbitration and, because we find both that the arbitrator had the power to arbitrate and that he actually decided the underlying issues later determined to the contrary by SDHR, we now annul? SDHR?s determination.

The court explained that ?An arbitrator's interpretation and application of the terms of a collective bargaining agreement ? is entitled to deference unless "the arbitrator's award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power.? Further, the Appellate Division found that although the collective bargaining agreement was ambiguous and did not clearly bar arbitration of Lowney's claim, the arbitrator reasonably resolved the ambiguity in Lowney's favor.

As a result, said the court, Lowney was precluded from relitigating either the arbitrator's findings of fact or his conclusions in a subsequent proceeding, and SDHR was required to give them collateral estoppel effect.

The Appellate Division said that the arbitrator further found that there was no credible evidence of a plot to terminate Lowney, and there was no discriminatory animus or vindictiveness in her supervision. Clearly, the arbitrator could not have made these findings without rejecting all of Lowney's claims, including her allegation that she was terminated from her employment in retaliation for having complained of sexual harassment and gender discrimination to DEOD and others. Rather than consider some other evidence and make "independent additional factual findings" that would support an independent determination that Lowney had been terminated in retaliation for her complaints, the Appellate Division said that SDHR merely decided that it was not bound by any of the arbitrator's determinations because it viewed Lowney's retaliation claim as alleging a type of discrimination different than that considered in the arbitration.

The court said that SDHR then substituted its own contrary findings that there were no significant deficiencies in Lowney's work and, therefore, they could not have been the real reason for her termination. The Appellate Division did not agree, commenting that ?since the underlying acts of [Labor] in terminating Lowney had been determined in the arbitration, SDHR could only correctly conclude that there was a nondiscriminatory basis for her termination. Thus, said the court, SDHR?s contrary determination must be annulled.

* The Appellate Division noted SDHR's ?egregious delays in processing Lowney's complaint,? commenting that 12 years had elapsed between the filing of the complaint and commencement of the hearing to accomplish what Executive Law §297 contemplates being completed in less than 16 months and then ?spent an inexcusable three years conducting the hearing and rendering its determination, a process that the statute directs it to complete in 180 days. In the words of the court, ?Even if inadequate funding and understaffing contributed to these delays, they were an abuse of SDHR's discretion that prejudiced all parties.?

Full post as published by New York Public Personnel Law on March 16, 2010 (boomark / email).