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Lisa Mcqueen-Starling,Claimant v. United Health Group

January 11, 2011

LISA MCQUEEN-STARLING,CLAIMANT,
v.
UNITED HEALTH GROUP, INC.
AND OXFORD HEALTH PLANS, RESPONDENTS.



The opinion of the court was delivered by: John G. Koeltl, District Judge

MEMORANDUM OPINION AND ORDER

The petitioner, Lisa McQueen-Starling ("McQueen"), moves to reopen her petition to vacate an arbitration award entered in favor of the respondents, UnitedHealth Group, Inc. ("UHG") and Oxford Health Plans ("Oxford), on her employment discrimination claims. This Court previously denied the petition "except to the extent that the arbitration award disposed of the petitioner's claim that she was the victim of retaliation for asking whether she was fired on the basis of race" as prohibited under New York State's Human Rights Law, N.Y. Exec. L. § 290 et seq. ("NYSHRL"), and New York City's Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. ("NYCHRL"). McQueen-Starling v. UnitedHealth Grp., Inc. ("McQueen I"), 654 F. Supp. 2d 154, 168-69 (S.D.N.Y. 2009). After remand, the Arbitrator stated that it had rejected the petitioner's claim of retaliation, but did not provide an explanation. The petitioner then filed her first motion to reopen her petition to vacate. The Court again remanded the case to the Arbitrator, requesting that it (1) confirm 'facts which have not been brought to [the Court's] attention which support' the Arbitrator's finding rejecting the petitioner's claim of retaliation based on her asking whether she was fired on the basis of her race; (2) '[i]n the alternative, assert some other [legal] ground' for rejecting the claim; or (3) '[f]ailing both of these, acknowledge that it erred' in its finding on the issue of retaliation, find liability and proceed to damages. McQueen-Starling v. UnitedHealth Grp., Inc. ("McQueen II"), No. 08 Civ. 4885, 2010 WL 768941, at *7 (S.D.N.Y. Mar. 8, 2010) (quoting Hardy v. Walsh Manning Sec., L.L.C., 341 F.3 126, 134 (2d Cir. 2003)). The Arbitrator then issued an opinion explaining its reasons for rejecting the petitioner's claim of retaliation. The petitioner now moves to reopen her petition to vacate the Arbitrator's award.

I.

A.

The following facts are undisputed and taken from the Opinions of the Arbitrator dated September 3, 2010 (Oct. 4, 2010 Affirmation of Debra L. Raskin Ex. 1 (the "2010 Opinion")), and January 28, 2008 (May 28, 2009 Affirmation of Debra L. Raskin Ex. 1 (the "2008 Opinion")), unless otherwise indicated. They are set out only as necessary to understand the issues on this motion to reopen. A more complete description of the facts is set out in McQueen I and McQueen II.

The petitioner, who is an African-American female, worked for respondent Oxford from June 19, 2000 until Oxford's merger with respondent UHG in July 2004. She continued working for UHG until late January, 2006. Throughout this time, the petitioner's supervisor was William Golden. Golden twice participated in hiring the petitioner at Oxford, and recommended her for a retention bonus occasioned by the merger. (2008 Op. at 1-3.)

In late January, 2006, Golden was directed to eliminate duplicative positions. He identified the petitioner's position as duplicative. On March 29, 2006, together with a UHG Human Resources ("HR") representative, Golden informed the petitioner that her job was being eliminated and she was being laid off. Upon receiving the news, the petitioner asked whether she was being laid off because she was black. Golden exited the room in response to this question. The petitioner's termination was effective April 6, 2006. (Id. at 3-4.)

In July 2006, the petitioner applied for another position with UHG. Golden received a reference request about that application and referred the reference request to Human Resources. Golden provided the following reasons for that action in testimony given during the arbitration proceedings:

"based on the circumstances under which she left I didn't feel appropriate that I would respond to the request . . . just how confrontational the meeting was. I felt it was not appropriate for me to weigh in." When asked whether it was because the petitioner asked "is this because I'm black?," Golden responded: "it was more the tone of her voice more than anything else . . . what she said, but more the tone of her voice." (2010 Op. at 3.) There is no evidence that Golden "ever took any action with regard to any other 'no-longer employed' employee other than referring a reference request to HR." (Id. at 5.)

The petitioner did not receive the position for which she applied in July 2006. During the arbitration proceedings, "[n]o direct evidence on the reasons why [the petitioner] did not receive the position was offered, and the indirect evidence on the record [did] not support an inference of any connection between the referral and [the petitioner's] non-selection." (Id. at 5.)

B.

The procedural history of this case was laid out in McQueen I and McQueen II. Briefly, the petitioner filed a Demand for Arbitration alleging race discrimination in violation of 42 U.S.C. § 1981, the NYSHRL, and the NYCHRL, as well as sex discrimination in violation of the NYSHRL and the NYCHRL. She based these causes of action on alleged events and remarks that occurred during her employment with the respondents, up to and including her termination. The Arbitrator denied these claims in the 2008 Opinion, and the Court declined to vacate the award as to those claims. McQueen II, 2010 WL 768941, at *2-3.

The petitioner also alleged retaliation for her opposition to discriminatory employment practices as prohibited by the NYSHRL and NYCHRL, based on Golden's post-termination refusal to recommend her for another position with UHG. The Arbitrator did not specifically address this claim in the 2008 Opinion. Because the 2008 Opinion focused exclusively on pre-termination events, the Court remanded the case to the Arbitrator for clarification and decision with respect to the claim of post-termination retaliation. McQueen I, 654 F. Supp. 2d at 167-68.

The Arbitrator subsequently issued a Clarification on April 28, 2009 (the "2009 Clarification"), summarily stating that the 2008 Opinion disposed of the petitioner's claim that she was the victim of retaliation for asking whether she was fired on the basis of race. Because the Arbitrator "did not provide any basis for the Court to exercise effective judicial review," there was "no discernible justification for the outcome reached by the Arbitrator," and the petitioner appeared "to have presented evidence to the Arbitrator sufficient to ...


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