| Matter of New York State Dept. of Labor (Unemployment Ins. AppealBd.) v New York State Div. of Human Rights |
| 2010 NY Slip Op 01854 [71 AD3d 1234] |
| March 11, 2010 |
| Appellate Division, Third Department |
| In the Matter of New York State Department of Labor(Unemployment Insurance Appeal Board), Petitioner, v New York State Division ofHuman Rights et al., Respondents. |
—[*1] Caroline J. Downey, State Division of Human Rights, New York City (Michael K. Swirskyof counsel), for State Division of Human Rights, respondent. Cynthia T. Lowney, New York City, respondent pro se.
Peters, J.P. Proceeding pursuant to Executive Law § 298 (transferred to this Court byorder of the Supreme Court, entered in Albany County) to review a determination of respondentState Division of Human Rights which, among other things, found petitioner guilty of retaliatorydischarge and awarded respondent Cynthia T. Lowney damages.
Respondent Cynthia T. Lowney was hired by petitioner in May 1991 to serve as anAdministrative Law Judge (hereinafter ALJ) for the Unemployment Insurance Appeal Board andwas assigned to be supervised by senior ALJ Ronald Moss. Lowney had her work reviewed on adaily basis by Frank Graffeo and Allen Brenner, more experienced ALJs. Lowney soon began toexperience what she perceived to be sexually harassing and gender-based discriminatory conductby Moss, which prompted her to contact petitioner's Division of Equal Opportunity Development(hereinafter DEOD) in November 1991. Soon after, the relationship between Moss and Lowney[*2]deteriorated and Timothy Coughlin, Executive Director ofthe Unemployment Insurance Appeal Board, appointed himself Lowney's direct supervisor.Thereafter, in April 1992, at Coughlin's request, Lowney's employment was terminated.
In response, Lowney filed grievances both before and after her discharge, including that hertermination was in retaliation for her complaints to DEOD. Ultimately, they were consolidatedand heard by an arbitrator as part of the final step in the grievance process. The arbitrator issueda decision in March 1996 awarding Lowney $1,200 for petitioner's failure to investigate herclaims of discrimination, but dismissing the balance of Lowney's grievances, including her claimof retaliatory discharge.
Meanwhile, Lowney had filed a complaint with respondent State Division of Human Rights(hereinafter SDHR) in April 1992. In April 1996, SDHR issued a probable cause determinationand, in April 2004, some 12 years after Lowney's complaint was filed, a public hearing on thematter was finally commenced. Following the hearing, which encompassed 37 days of testimonyover 16 months, SDHR ultimately issued an alternative proposed order in March 2007 findingpetitioner guilty of retaliatory discharge and ordering, among other things, that petitioner payLowney $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 incurredbecause of her wrongful termination. The Commissioner of Human Rights adopted that orderand petitioner thereafter commenced this proceeding seeking to annul thedetermination.[FN*]
Initially, contrary to Lowney's contention, we find that Supreme Court properly transferredthe proceeding to this Court (see Executive Law § 298; see generally Matter of RegalEntertainment Group v New York State Div. of Human Rights, 61 AD3d 1102 [2009],lv dismissed 13 NY3d 893 [2009]).
Turning to the merits, petitioner initially contends that SDHR improperly failed to dismissLowney's complaint based on res judicata and collateral estoppel as a result of the March 1996arbitration decision. There is no question that these principles apply to awards in arbitration(see Matter of American Ins. Co. [Messinger—Aetna Cas. & Sur. Co.], 43 NY2d184, 189-190 [1977]; Matter ofGooshaw v City of Ogdensburg, 67 AD3d 1288, 1290 [2009]) and, because we findboth that the arbitrator had the power to arbitrate and that he actually decided the underlyingissues later determined to the contrary by SDHR, we now annul.
An arbitrator's interpretation and application of the terms of a collective bargainingagreement (hereinafter CBA) is entitled to deference unless "the arbitrator's award violates a[*3]strong public policy, is irrational or clearly exceeds aspecifically enumerated limitation on the arbitrator's power" (Matter of Henneberry v ING Capital Advisors, LLC, 10 NY3d278, 284 [2008] [internal quotation marks and citation omitted]; see Matter of Civil Serv. Empls. Assn.,Inc., Local 1000, AFSCME, AFL-CIO [State of New York], 15 AD3d 748, 750 [2005]).As pertinent here, there was no such limitation because the CBA was ambiguous and did notclearly bar arbitration of Lowney's claim, and the arbitrator reasonably resolved the ambiguity inLowney's favor (see Matter of CapitalDist. Transp. Auth. [Planz], 68 AD3d 1499, 1500-1501 [2009]; Matter of Massena Cent. School Dist.[Massena Confederated School Employees' Assn., NYSUT, AFL-CIO], 64 AD3d 859,862-863 [2009]). The first sentence of section 34.1 (a) of the CBA defines a "contract grievance"as "a dispute concerning the interpretation, application or claimed violation of a specific term orprovision of [the CBA]." Because Lowney alleged conduct that would violate a specificprovision of the CBA, namely section 36.2 by which petitioner agreed to refrain from any formof illegal discrimination, her claim would constitute a contract grievance. The second sentence ofsection 34.1 (a), however, states: "Other disputes which do not involve the interpretation,application, or claimed violations of a specific term or provision to this Agreementincluding matters as to which other means of resolution are provided or foreclosed bythis Agreement, or by statute or administrative procedures applicable to the State, shall not beconsidered contract grievances" (emphasis added). The ambiguity arises because the sentencecan be read to limit the exclusion of matters for which there is a statutory remedy to disputes thatdo not involve specific provisions of the CBA, or to expand the class of excluded disputesbeyond those that do not involve the interpretation, application or claimed violation of a specificprovision of the CBA. Reasoning that if claims such as Lowney's were not contract grievancesthen the CBA's provision barring illegal discrimination would be meaningless, the arbitratorresolved this ambiguity by recognizing Lowney's claims as arbitrable grievances (see Matterof Capital Dist. Transp. Auth. [Planz], 68 AD3d at 1501; Matter of Massena Cent.School Dist. [Massena Confederated School Employees' Assn., NYSUT, AFL-CIO], 64AD3d at 862-863).
As a result, Lowney was precluded from relitigating either the arbitrator's findings of fact orhis conclusions in a subsequent proceeding, and SDHR was required to give them collateralestoppel effect (see Matter of Guimarales [New York City Bd. ofEduc.—Roberts], 68 NY2d 989, 991 [1986]; Matter of Metro-North CommuterR.R. Co. v New York State Exec. Dept. Div. of Human Rights, 271 AD2d 256, 257 [2000]).The arbitrator credited the testimony of petitioner's managers and found that, despite warnings ofspecific errors and deficiencies, Lowney's work had been and continued to be unacceptable, andshe would not have been discharged if she had heeded those warnings and complied with heremployer's requirements. The arbitrator further found that there was no credible evidence of aplot to terminate Lowney, and there was no discriminatory animus or vindictiveness in hersupervision. Clearly, the arbitrator could not have made these findings without rejecting all ofLowney's claims, including her allegation that she was terminated from her employment inretaliation for having complained of sexual harassment and gender discrimination to DEOD andothers.
Rather than consider some other evidence and make "independent additional factualfindings" that would support an independent determination that Lowney had been terminated inretaliation for her complaints (Matter of Guimarales [New York City Bd. ofEduc.—Roberts], 68 NY2d at 991; see Matter of Stanton [Commissioner ofLabor], 275 AD2d 844 [2000]), SDHR merely decided that it was not bound by any of thearbitrator's determinations because it viewed Lowney's retaliation claim as alleging a type ofdiscrimination different than that considered in the arbitration. SDHR then substituted its owncontrary findings that there were no [*4]significant deficienciesin Lowney's work and, therefore, they could not have been the real reason for her termination.However, since the underlying acts of petitioner in terminating Lowney had been determined inthe arbitration, SDHR could only correctly conclude that there was a nondiscriminatory basis forher termination (see Matter of Ranni [Ross], 58 NY2d 715, 717 [1982]; Matter ofBishop [New York City Human Resources Admin.—Commissioner of Labor], 282AD2d 924, 924 [2001]; Matter of Metro-North Commuter R.R. Co. v New York State Exec.Dept. Div. of Human Rights, 271 AD2d at 257; see also Peterkin v Episcopal Social Servs. of N.Y., Inc., 24 AD3d306, 307 [2005]; Matter of Kilgore [Triboro Coach Corp.—Sweeney], 227AD2d 710, 710-711 [1996]). Accordingly, its contrary determination must be annulled.
Finally, we take this opportunity to decry SDHR's egregious delays in processing Lowney'scomplaint. SDHR took 12 years between the filing of the complaint and commencement of thehearing to accomplish what Executive Law § 297 contemplates to be completed in lessthan 16 months (see Executive Law § 297 [2] [a]; [4] [a]). SDHR then spent aninexcusable three years conducting the hearing and rendering its determination, a process thatthe statute directs it to complete in 180 days (see Executive Law § 297 [4] [c]).Even if inadequate funding and understaffing contributed to these delays, they were an abuse ofSDHR's discretion that prejudiced all parties (see Matter of Heller v Chu, 111 AD2d1007, 1008-1009 [1985], appeal dismissed 66 NY2d 696 [1985]).
In light of our holding, we need not discuss the parties' remaining contentions.
Rose, Kavanagh and McCarthy, JJ., concur; Kane, J., not taking part. Adjudged that thedetermination is annulled, without costs, petition granted and complaint dismissed.
Footnote *: On the same day, Lowneycommenced a proceeding in Supreme Court in New York County, pursuant to CPLR article 78,to review SDHR's order, seeking, among other things, full back pay from the date of hertermination to the date of the order, an increased amount of compensatory damages, the value oflost fringe benefits and reinstatement. Lowney's petition was dismissed for lack of personaljurisdiction due to improper service, and that decision was affirmed by the First Department (Matter of Lowney v New York State Div.of Human Rights, 68 AD3d 551 [2009]).