| Matter of Kowaleski (New York State Dept. of CorrectionalServs.) |
| 2009 NY Slip Op 02515 [61 AD3d 1081] |
| April 2, 2009 |
| Appellate Division, Third Department |
| In the Matter of the Arbitration between Barbara Kowaleski,Appellant, and New York State Department of Correctional Services,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank K. Walsh of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the Supreme Court (Connolly, J.), enteredNovember 14, 2007 in Albany County, which, among other things, denied petitioner'sapplication pursuant to CPLR 7511 to vacate an arbitration award.
Petitioner, a correction officer, was served with a notice of discipline charging her withviolating various provisions of the employees' manual as the result of her conduct on threeseparate occasions in September and October 2004. The first charge alleged that, while on dutyon September 29, 2004, petitioner made inappropriate comments of a personal nature aboutanother officer in the presence of inmates and staff. The second charge alleged that, while onduty on October 4, 2004, petitioner became argumentative and engaged in a verbal exchangewith another employee. The third charge alleged that, while on duty on October 4, 2004,petitioner became insubordinate when she ignored a sergeant's directive to stop interruptinganother employee. The notice of discipline called for petitioner's termination and the loss of anyaccrued annual leave as a penalty for these violations.
A hearing on the charges was subsequently conducted by an arbitrator. At the outset of thehearing, petitioner's counsel requested the arbitrator to consider the affirmative defense under[*2]Civil Service Law § 75-b that the charges werebrought against petitioner in retaliation for her having reported an assault on an inmate by afellow officer in September 2002. The arbitrator responded that he would not consider retaliationas an affirmative defense, but would take it into account in evaluating the credibility of witnessesas relevant to petitioner's guilt or innocence. The arbitrator proceeded to consider witnesstestimony, including that of petitioner and another correction officer concerning the manner inwhich petitioner had been harassed after reporting the inmate assault by a fellow officer.Nevertheless, at the conclusion of the hearing, the arbitrator found petitioner guilty of the firstand third charges. Based upon petitioner's disciplinary history, the arbitrator determined thattermination was the appropriate penalty.
Thereafter, petitioner commenced this proceeding pursuant to CPLR article 75 seeking tovacate the arbitration award on various grounds. Following joinder of issue, petitioner moved toamend the petition to add another ground for vacating the award. Supreme Court denied themotion to amend, as well as the relief requested in the petition. Petitioner now appeals.
Initially, we note that an arbitration award may be vacated "on only three narrow grounds: ifit is clearly violative of a strong public policy, if it is totally or completely irrational, or if itmanifestly exceeds a specific, enumerated limitation on the arbitrator['s] power" (Matter of NFB Inv. Servs. Corp. vFitzgerald, 49 AD3d 747, 748 [2008]; see Matter of Town of Callicoon [Civil Serv.Empls. Assn., Town of Callicoon Unit], 70 NY2d 907, 909 [1987]). "[C]ourts are obligatedto give deference to the decision of the arbitrator" (Matter of New York City Tr. Auth. v Transport Workers' Union of Am.,Local 100, AFL-CIO, 6 NY3d 332, 336 [2005]). "This is true even if the arbitratormisapplied the substantive law in the area of the contract" (id. [citations omitted]; seeMatter of New York State Correctional Officers & Police Benevolent Assn. v State of NewYork, 94 NY2d 321, 326 [1999]; Matter of NFB Inv. Servs. Corp. v Fitzgerald, 49AD3d at 748).
In the case at hand, petitioner asserts that the arbitrator exceeded his authority by failing toconsider retaliation as an affirmative defense to the charges under Civil Service Law §75-b. That statute, known as the whistleblower's law, provides that an employee may assert theclaim of retaliation in the context of an arbitration proceeding involving adverse personnel actionand that "[t]he arbitrator shall consider such claim and determine its merits" (Civil Service Law§ 75-b [3] [b]). While the arbitrator here incorrectly stated that it was beyond hisjurisdiction to consider petitioner's claim of retaliation, this error of law does not warrantvacating the award under the circumstances presented (see Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, 479[2006]; Matter of Sprinzen [Nomberg], 46 NY2d 623, 629 [1979]). The retaliationdefense under Civil Service Law § 75-b is applicable where the disciplinary proceeding isbased solely upon the employer's alleged unlawful retaliatory action (see Matter ofCrossman-Battisti v Traficanti, 235 AD2d 566, 568 [1997]). As is discussed below, this isnot the situation here as evidence of petitioner's improper conduct was presented at the hearing.Furthermore, the record discloses that the arbitrator, in fact, considered evidence of retaliation inweighing witness credibility and assessing petitioner's guilt.
Contrary to petitioner's claim, ample proof was presented at the hearing to support thearbitrator's finding that petitioner was guilty of the two charges and, therefore, his decision wasnot irrational. Regarding the charge that petitioner made inappropriate comments of a personalnature, the correction officer who heard them stated that petitioner commented that anotherofficer's son had been shot and did so within earshot of inmates, as well as staff. Regarding thecharge of insubordination, the sergeant involved testified that he directed petitioner a number of[*3]times to stop interrupting another correction officer, but sherefused to comply. Although petitioner denied both incidents, her testimony presented acredibility issue for the arbitrator to resolve. Given the proof in the record justifying thearbitrator's decision, we cannot conclude that it was irrational (see Matter of NFB Inv. Servs.Corp. v Fitzgerald, 49 AD3d at 748).
Furthermore, we do not find that the arbitrator's decision should be vacated for public policyreasons. The law does not prohibit, in an absolute sense, the matter decided by the arbitrator andhis decision does not so violate " 'well-defined constitutional, statutory or common law' " as tooffend public policy (Matter of New York City Tr. Auth. v Transport Workers Union of Am.,Local 100, AFL-CIO, 99 NY2d 1, 11 [2002], quoting Matter of New York StateCorrectional Officers & Police Benevolent Assn. v State of New York, 94 NY2d at 328; see Matter of United Fedn. of Teachers,Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d72, 80 [2003]). In view of the foregoing, we find no reason to disturb the arbitrator'sdecision.
We have considered petitioner's remaining contentions and find them to be unpersuasive.
Mercure and Lahtinen, JJ., concur.
Cardona, P.J. (dissenting). We respectfully dissent. It is undisputed that an arbitration awardmay be vacated "if it is clearly violative of a strong public policy" (Matter of NFB Inv. Servs. Corp. vFitzgerald, 49 AD3d 747, 748 [2008]). The authority of courts "to overturn anarbitration award on public policy grounds is a recognized, albeit narrow, exception to thegeneral rule that arbitrators have broad power to determine all disputes submitted to thempursuant to the parties' agreement" (Matter of Binghamton City School Dist. [Peacock], 33 AD3d1074, 1076 [2006], appeal dismissed 8 NY3d 840 [2007] [internal quotation marksand citations omitted]). The state's strong public policy against retaliatory personnel actions isexpressed by the enactment of whistleblowers' statutes such as Civil Service Law § 75-b(see generally Bordell v General Elec. Co., 208 AD2d 219 [1995], affd 88 NY2d869 [1996]). That statute specifically provides that an employee "may assert such as a defensebefore the designated arbitrator . . . [and t]he merits of such defense shall beconsidered and determined as part of the arbitration award" (Civil Service Law § 75-b [3][a]).
Here, petitioner was clearly denied the opportunity to have that defense fully considered anddetermined by the arbitrator as provided by the statute and, thereafter, she received the strictestpenalty of termination. Although the majority holds that the arbitrator's error regarding theavailability of the defense can be overlooked because the arbitrator took notice of the evidenceoffered by petitioner "in weighing witness credibility and assessing petitioner's guilt," we cannotagree that is sufficient given the statute's clear language that the defense be "considered anddetermined" by the arbitrator (Civil Service Law § 75-b [3] [a]). Notably, in the case citedby the majority, Matter of Crossman-Battisti v Traficanti (235 AD2d 566 [1997]), thisCourt indicated that the dismissed employee was not deprived of a fair hearing inasmuch as shewas, in fact, ultimately allowed "to raise the defense" (id. at 568). Petitioner herein wasnot afforded a similar opportunity. Instead, the arbitrator specifically stated in his determinationthat he had "no authority to consider the Civil Service Law issues raised by [petitioner]."Petitioner [*4]was thus deprived of her right to have the arbitratordetermine, among other things, the specific factual issue of whether the disciplinary chargeswere, in the first instance, "initiated and pursued to retaliate for [the prior matters]" (Matterof Obot [New York State Dept. of Correctional Servs.], 89 NY2d 883, 885 [1996]).Accordingly, it is our view that the arbitrator's award is flawed and must be vacated.
Stein, J., concurs. Ordered that the judgment is affirmed, without costs.