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Kowaleski v. New York State Dep't of Correctional Services

April 2, 2009

IN THE MATTER OF THE ARBITRATION BETWEEN BARBARA KOWALESKI, APPELLANT,
v.
NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT.



The opinion of the court was delivered by: Malone Jr., J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Calendar Date: December 16, 2008

Before: Cardona, P.J., Mercure, Lahtinen, Malone Jr. and Stein, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Connolly, J.), entered November 14, 2007 in Albany County, which, among other things, denied petitioner's application pursuant to CPLR 7511 to vacate an arbitration award.

Petitioner, a correction officer, was served with a notice of discipline charging her with violating various provisions of the employees' manual as the result of her conduct on three separate occasions in September and October 2004. The first charge alleged that, while on duty on September 29, 2004, petitioner made inappropriate comments of a personal nature about another officer in the presence of inmates and staff. The second charge alleged that, while on duty on October 4, 2004, petitioner became argumentative and engaged in a verbal exchange with 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 interrupting another employee. The notice of discipline called for petitioner's termination and the loss of any accrued annual leave as a penalty for these violations.

A hearing on the charges was subsequently conducted by an arbitrator. At the outset of the hearing, petitioner's counsel requested the arbitrator to consider the affirmative defense under Civil Service Law § 75-b that the charges were brought against petitioner in retaliation for her having reported an assault on an inmate by a fellow officer in September 2002. The arbitrator responded that he would not consider retaliation as an affirmative defense, but would take it into account in evaluating the credibility of witnesses as relevant to petitioner's guilt or innocence. The arbitrator proceeded to consider witness testimony, including that of petitioner and another correction officer concerning the manner in which 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 first and third charges. Based upon petitioner's disciplinary history, the arbitrator determined that termination was the appropriate penalty.

Thereafter, petitioner commenced this proceeding pursuant to CPLR article 75 seeking to vacate the arbitration award on various grounds. Following joinder of issue, petitioner moved to amend the petition to add another ground for vacating the award. Supreme Court denied the motion 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: if it is clearly violative of a strong public policy, if it is totally or completely irrational, or if it manifestly exceeds a specific, enumerated limitation on the arbitrator's power" (Matter of NFB Inv. Servs. Corp. v Fitzgerald, 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]courts are obligated to 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 arbitrator misapplied the substantive law in the area of the contract" (id. [citations omitted]; see Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, 326 [1999]; Matter of NFB Inv. Servs. Corp. v Fitzgerald, 49 AD3d at 748).

In the case at hand, petitioner asserts that the arbitrator exceeded his authority by failing to consider 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 the claim of retaliation in the context of an arbitration proceeding involving adverse personnel action and 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 his jurisdiction to consider petitioner's claim of retaliation, this error of law does not warrant vacating 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 retaliation defense under Civil Service Law § 75-b is applicable where the disciplinary proceeding is based solely upon the employer's alleged unlawful retaliatory action (see Matter of Crossman-Battisti v Traficante, 235 AD2d 566, 568 [1997]). As is discussed below, this is not 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 in weighing witness credibility and assessing petitioner's guilt.

Contrary to petitioner's claim, ample proof was presented at the hearing to support the arbitrator's finding that petitioner was guilty of the two charges and, therefore, his decision was not irrational. Regarding the charge that petitioner made inappropriate comments of a personal nature, the correction officer who heard them stated that petitioner commented that another officer's son had been shot and did so within earshot of inmates, as well as staff. Regarding the charge of insubordination, the sergeant involved testified that he directed petitioner a number of times to stop interrupting another correction officer, but she refused to comply. Although petitioner denied both incidents, her testimony presented a credibility issue for the arbitrator to resolve. Given the proof in the record justifying the arbitrator'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 policy reasons. The law does not prohibit, in an absolute sense, the matter decided by the arbitrator and his decision does not so violate "'well-defined constitutional, statutory or common law'" as to offend 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 State Correctional 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 ...


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