documentation; (2) filed a claim against Roadway alleging race discrimination; (3) did not retire on disability in October 1991, but rather was discharged in April 1992 for excessive absenteeism; and (4) did not have terminal brain cancer. Roadway asserts that by failing to consider such information in crediting Mr. Johnson's testimony, the Independent Administrator ignored Mr. Johnson's motivation to lie, and thus, rendered an arbitrary and capricious decision.
By making such an argument, Roadway asks this Court to substitute its assessment of the credibility of evidence offered on Mr. Ellis' behalf for that of the Election Officer and the Independent Administrator, who investigated the matter and conducted the hearing and thus were in the best position to judge credibility. See January 20, 1992 Memorandum & Order, 782 F. Supp. 256, 259 (S.D.N.Y. 1992); October 16, 1991 Memorandum & Order, 777 F. Supp. 1130, 1133 (S.D.N.Y. 1991), aff'd, 964 F.2d 1308 (2d Cir. 1992)); see also United States v. IBT, 964 F.2d 1308 (2d Cir. 1992) ("We find no reason to question [the Court-Appointed Officers'] credibility determinations, especially given [their] superior vantage point."). In this case, the Election Officer or his staff spoke with Mr. Johnson during the course of the Election Officer's investigation into Mr. Ellis' protest. After receiving Mr. Johnson's statements and concluding that Mr. Johnson had no motivation to lie, the Election Officer credited his testimony. After a telephone hearing in this matter, at which Roadway had an opportunity to challenge the Election Officer's credibility determination, the Independent Administrator affirmed the Election Officer's assessment of Mr. Johnson's testimony. The Independent Administrator found Mr. Johnson's statements credible in light of both the facts of this case and the concurring judgment of the Election Officer, whose staff took Mr. Johnson's testimony. This Court will not supplant its credibility determination for that of the two Court-Appointed Officers. Their decision to credit the disputed testimony is amply supported by the evidence and is in no way arbitrary or capricious.
Even were this Court to accept Roadway's assertions concerning Mr. Johnson's credibility, it would not find the Independent Administrator's decision arbitrary and capricious. The Independent Administrator credited Mr. Johnson's testimony in part out of deference to the judgment of the Election Officer, who took Mr. Johnson's testimony, and in part because it is supported by the facts of the case. This Court finds that even if Mr. Johnson had a motive to lie, his testimony is nonetheless credible because it is independently corroborated by other relevant facts. These facts include the possibility of a "cozy" relationship between Roadway and Burlington; Roadway's illogical decision not to have Burlington wake Mr. Ellis immediately upon learning that he was asleep on Burlington property, even though this constituted a breach of Roadway and Burlington policy; Roadway's unique application of its gross abuse policy in this case, in which it failed to reinstate Mr. Ellis when Roadway had reinstated similarly situated employees; and Roadway's inability to produce a computerized record of Mr. Ellis' arrival time at Burlington on the night in question. These facts suggest that Roadway's action was politically motivated. Mr. Johnson's testimony also suggests retaliatory discharge. Based upon such corroboration, the Independent Administrator had a reasonable basis to credit Mr. Johnson's testimony. Moreover, the Independent Administrator considered, and rejected, Roadway's evidence concerning Mr. Johnson's credibility: "Roadway clearly articulated its position at the hearing and a post-hearing submission would not have added anything but delay to the process." Id. at 5 n.2. Therefore, the Independent Administrator's decision to credit Mr. Johnson's testimony was not arbitrary or capricious. Moreover, as previously noted, the other evidence in this case amply supports the Independent Administrator's decision, and thus, even ignoring Mr. Johnson's testimony, this Court finds that his decision is not arbitrary or capricious.
b. Other Evidence of Retaliatory Discharge
Roadway next asserts that the Independent Administrator erred when, in finding a "set-up," he relied on Burlington's failure to wake Mr. Ellis immediately upon discovering him sleeping. Roadway proffers that Mr. Ellis alone was responsible for remaining awake while on duty, and thus, Roadway should not bear any blame for failing to wake him or have Burlington wake him. Roadway's argument is not persuasive. Roadway could have had Burlington wake Mr. Ellis. Instead, it elected to have Burlington remain idle. This allegedly resulted in Mr. Ellis' continuing to sleep for several more hours, in breach of both Roadway and Burlington policy. Such a breach, if it occurred, would have been avoided had Roadway made the seemingly logical decision to wake Mr. Ellis because sleeping while on lunch is not a gross abuse of company time. It does not require a quantum leap of either imagination or intelligence to conclude that by opting not to wake him, and thus allowing Mr. Ellis to continue in a violation of both Roadway and Burlington policy, Roadway fulfilled Mr. Lamphere's desire to generate charges against Mr. Ellis.
c. Roadway's Affirmative Defense
As to Roadway's assertion that it would have discharged Mr. Ellis regardless of his campaign activity, Roadway contends that it consistently fires employees who, without justification, sleep on the job. In addition to this supposed policy, Roadway avers that it refused to reinstate Mr. Ellis because at the time of the discharge, he had worked at Roadway for only eight years and, "despite overwhelming evidence that Ellis was asleep, Ellis continued to claim that he had not slept and showed no remorse." (Roadway's Appeal, at 26).
The Independent Administrator relied on several pieces of evidence in refusing to find that Roadway would have dismissed Mr. Ellis regardless of his campaign activity. The Independent Administrator considered that Roadway has fired nine other employees for violating the gross abuse policy, but that the eight who, like Mr. Ellis, had received no disciplinary notices for abuse of company time in the preceding nine months, were voluntarily reinstated. While Roadway contends that decisions concerning whether to reinstate an employee are made on an individual basis, it cannot use such an assertion with talismanic effect to avoid the implications of its reinstatement history. The Independent Administrator also refused to credit Roadway's assertion that Mr. Ellis' offense was aggravated because it occurred on Burlington's property, given that Burlington chose not to enforce its "no-sleeping" policy when it allowed Mr. Ellis to continue sleeping. In light of these considerations and the circumstances of this case, the Independent Administrator found that Roadway's decision was politically motivated. Such a finding is amply supported by the evidence.
Accordingly, the Independent Administrator's decision is supported by substantial evidence, and is neither arbitrary nor capricious.
IT IS HEREBY ORDERED that Roadway's objections to the Independent Administrator's decision are without merit; and
IT IS FURTHER ORDERED that the Independent Administrator's decision is affirmed in its entirety.
DATED: September 24, 1992
New York, New York
David N. Edelstein