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Labor & Employment Law: New York Public Personnel Law
Disciplinary arbitrator has jurisdiction to hear a defense based on CSL §75-b, the Whistle Blower statute
Matter of Kowaleski v New York State Dept. of Correctional Servs., 2009 NY Slip Op 02515, decided on April 2, 2009, Appellate Division, Third Department
NYS Correction Officer Barabara Kowaleski 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.
The charges alleged Kowaleski  had made inappropriate comments of a personal nature about another officer in the presence of inmates and staff;  that while on duty she became argumentative and engaged in a verbal exchange with another employee and  that while on duty she was insubordinate when she ignored a sergeant's directive to stop interrupting another employee. The Department sought Kowaleski?s dismissal and the forfeiting of her accrued annual leave as a penalty for these violations.*
At the commencement of the hearing, Kowaleski's attorney asked the arbitrator to consider the affirmative defense under Civil Service Law §75-b that the charges were brought against Kowaleski in retaliation for her earlier having reported an assault on an inmate by a fellow officer. The arbitrator said that he would not consider retaliation as an affirmative defense, but that he would take it into account in evaluating the credibility of witnesses in determining Kowaleski's guilt or innocence.
Ultimately the arbitrator found Kowaleski guilty of charges  and . Based upon her disciplinary history, the arbitrator determined that termination was the appropriate penalty.
Kowaleski filed a petition pursuant to CPLR Article 75 seeking to vacate the arbitration award on various grounds. When the Supreme Court denied the relief requested in her petition, Kowaleski asked the Appellate Division to reverse the lower court?s ruling.
The Appellate Division pointed out 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," citing Matter of NFB Inv. Servs. Corp. v Fitzgerald, 49 AD3d 747.
Further, said the court, "[C]ourts are obligated to give deference to the decision of the arbitrator ? This is true even if the arbitrator misapplied the substantive law in the area of the contract."
Here, however, Kowaleski contended 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, commonly referred to 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  [b]).
Although the Appellate Division held that the arbitrator incorrectly stated that it was beyond his jurisdiction to consider Kowaleski's claim of retaliation, it said that "this error of law does not warrant vacating the award under the circumstances present in this appeal."
The retaliation defense under Civil Service Law §75-b, said the court, is applicable where the disciplinary proceeding is based solely upon the employer's alleged unlawful retaliatory action.
Here, however, there was evidence of Kowaleski's improper conduct was presented at the hearing. In addition, the record indicated that the arbitrator did, in fact, considered evidence of retaliation in weighing witness credibility and assessing Kowaleski's guilt.
Finally, said the Appellate Division, the arbitrator's decision should not 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 of "well-defined constitutional, statutory or common law" as to offend public policy.
Justice Cardona, with Justice Stein concurring, dissented, stating that ?The state's strong public policy against retaliatory personnel actions is expressed by the enactment of whistleblowers' statutes such as Civil Service Law §75-b? which specifically provides that an employee "may assert such as a defense before the designated arbitrator . . . [and t]he merits of such defense shall be considered and determined as part of the arbitration award" (Civil Service Law §75-b  [a]).?
In this instance, said Justice Cardona, Kowaleski was deprived of her right to have the arbitrator determine, among other things, the specific factual issue of whether the disciplinary charges were, in the first instance, "initiated and pursued to retaliate for [the prior matters]."
* 4 NYCRR 23.1 provides, in pertinent part, "No employee who is removed from State service as a result of disciplinary action ... shall be entitled to compensation for vacation credits under the provisions of this Part."
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