Matter of Murray

[*1] Matter of Murray 2012 NY Slip Op 50543(U) Decided on March 27, 2012 Supreme Court, Queens County McDonald, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 27, 2012
Supreme Court, Queens County

In the Matter of the Application of Cassandra Murray, to Vacate the Arbitrator's Decision, , Petitioner, Under Article 78 of the Civil Practice Law and Rules Vacating the Administrators Penalty Produced by Corruption, Bias, Fraud or Misconduct in Procuring the Award.



24367/2011

Robert J. McDonald, J.

The following papers numbered 1 to 15 were read on this petition for an order pursuant to CPLR 7511(b) reversing the decision of the arbitrator dated October 3, 2011 on the ground that the petitioner was prejudiced by the fraud, misconduct and bias of the arbitrator and on the ground that the arbitrator exceeded his authority:

Papers

Numbered

Notice of Petition...................................1 - 4

Respondent's Verified Answer-Memorandum of Law.......5 - 10

Petitioner's Reply..................................11 - 15

_________________________________________________________________

Petitioner commenced this Article 78 proceeding against the New York City Transit Authority for an order, pursuant to CPLR 7511(b), modifying or vacating the arbitration award of arbitrator Earl R. Pfeffer, Esq., dated October 3, 2011, which dismissed the petitioner. Petitioner requests that the Court reinstate her employment. The Transit Authority, although not named as a respondent, was served with the Notice of Petition and answered as the respondent herein.

The background of this petition is taken from the respondent's verified answer which includes the affidavit of [*2]Regina R. Matson, Esq., Senior Labor Attorney in the Office of Labor Relations, Administrative Trials and Hearings of the New York City Transit Authority. Petitioner, Cassandra Murray was employed as a Bus Operator with the New York City Transit Authority from July 27, 1998 up until her dismissal on October 3, 2011. On May 26, 2011, petitioner filed an application for a leave of absence due to illness at 60% supplementary pay for the period April 20, 2011 through May 26, 2011. The petitioner had undergone knee surgery and was being treated by Dr. Golant. The application included a section entitled "Doctor's Certification" which was purportedly certified by Dr. Golant, M.D. and was dated and signed on May 26, 2011. The certification contains a statement that the petitioner's illness so incapacitated the employee that she was unable to perform her duties from April 20, 2011 through May 26, 2011.

The Transit Authority's Labor Cost Control Unit reviewed the application and believing that the doctor's signature might have been forged, sent an investigator to Dr. Golant's Office on June 13, 2011 and June 21, 2011. On June 13, 2011, a medical supervisor at the doctor's office stated they had no records that Ms. Murray was seen in the office on May 26, 2011 and they told the investigator that the signature on the certification was not Dr. Golant's signature. On June 21, 2011, Dr. Golant personally told the investigator that he was not in the office on May 26, 2011 and the signature on the certification was not his. He also stated that no one on his staff is authorized to complete or sign his name to sick leave applications.

Ms. Matson states that in accordance with the terms and provisions of the Collective Bargaining Agreement, the Transit Authority initiated disciplinary proceedings against petitioner seeking a penalty of dismissal for violation of the TA Policies and Rules(Rule 8[a]) and Section 2.6 G,I & N of the TA/TWU contract by making and submitting fraudulent misrepresentations to the Transit Authority. The TA thereupon suspended Ms. Murray and initiated disciplinary charges. At each of the required step hearings the charges and penalty of dismissal were sustained. Subsequently, the petitioner's union moved for binding arbitration as provided for in the collective bargaining agreement.

The arbitration hearing was held before Arbitrator Pfeffer on September 15, 2011. The Arbitration was between the Transit Authority and The Transport Workers Union Local 100. Ms. Matson represented the Transit Authority and Kenneth Page, Esq. represented the TWU. The Transit Authority proposed the dismissal of Ms. Murray for violating the rules of the collective [*3]bargaining agreement in connection with her submission of the application for sick leave dated May 26, 2011 which contained a forged doctor's signature. Petitioner chose not to testify.

On September 15, 2011, after the hearing, the Arbitrator rendered his opinion and award. Mr. Pfeffer states in his findings that Ms. Murray does not deny the allegations and admits to the charged conduct. Despite her admission, the Union argued that Ms. Murray cured the violation when she submitted a corrected sick leave application with a purportedly bona fide doctor's signature. At the hearing, the Union argued that dismissal was not an appropriate penalty notwithstanding the admitted violation. The Transit Authority argued that the petitioner did not come forward with a corrected copy until after the investigator learned the signature was fraudulent. The Transit Authority argued that pursuant to the sick leave rules, a fraudulent claim for sick leave may result in dismissal from the service. The Arbitrator stated that based upon his careful review of the record, the Transit Authority had just cause to dismiss Ms. Murray and he upheld the proposed penalty. The arbitrator stated that he reviewed numerous prior arbitration decisions in which dismissal was sustained for employees who have knowingly submitted false sick leave applications absent compelling reasons for leniency such as long time service with a good work history.

The arbitrator considered mitigating circumstances and searched the record for reasons to reduce the proposed penalty such as the employee having submitted a corrected application on June 14, 2011. However, the arbitrator found that "an employee's attempt to cure a fraudulent submission, if it is to be accorded any weight, must minimally occur before the employer discovers the wrongdoing." Here, Ms. Murray did not come forward with a corrected application until after the investigation was initiated and the investigator had evidence of a false signature. The arbitrator stated, "the timing of her second application suggests she may have turned it in only after being alerted by her doctor's staff that the authenticity of her original application was under investigation." Further, the arbitrator found that there was insufficient proof submitted at the hearing that the signature on the second sick leave application was authentic. The Arbitrator also examined Ms. Murray's work history and disciplinary record in conjunction with finding the appropriate penalty and found that she had 13 prior disciplinary actions culminating in a 30 day suspension. The arbitrator stated that although her recent work history had improved, it did not offset the gravity of the prior violations. By order dated October 3, 2011, Arbitrator Pfeffer stated that the appropriate penalty was dismissal. [*4]

Petitioner now asserts that her leave application of May 26, 2011, which contained the forged signature was a conformed copy of the document that was subsequently submitted by the doctor's office on June 14, 2011. She states that she submitted the conformed copy merely to obtain an early date for review of the matter to speed up the process based upon the doctor's unavailability to make the submission. She states that the arbitrator misinterpreted the document as an attempt to defraud the Transit Authority which it was not. She states that in accepting the Transit Authority's argument that the application was an intent to defraud the TA, the arbitrator exhibited bias and that his award lacked rationality and he exceeded his authority. Petitioner contends that the arbitration was corrupt and the arbitrator, the investigator and senior labor attorney Matson were part of a lynch mob as their statements were one-sided falsehoods. She states that the fraudulent proceeding led to the termination of her job without due process. Further, she contends that the arbitrator exceeded his authority in sustaining the award of termination.

Respondent argues that the arbitrator acted within his contractual authority in making the determination that the Transit Authority had just cause to dismiss Ms. Murray. The TA argues that even if Ms. Murray subsequently filed a properly signed application she did not inform the TA that the first application had a fraudulent signature until after the investigator learned that the doctor's signature was false. Counsel argues that the second application was merely a request to extend the dates of the earlier application. Respondent claims that petitioner has failed to provide sufficient evidence to support her contention that the arbitrator was biased and exceeded his authority in finding that the petitioner committed fraud and issuing the penalty of dismissal. Counsel claims that the arbitrator had a clear, rational basis for concluding that termination was appropriate for submitting medical treatment information with a forged medical doctor's signature and in finding that her prior work history and second corrected application did not provide sufficient mitigation.

Here, although the petitioner brought an Article 78 proceeding, the petition seeks to vacate the arbitration award pursuant to CPLR 7511(b). Pursuant to the Collective Bargaining Agreement, the arbitration proceeding is the exclusive method for resolving disciplinary grievances.

Pursuant to CPLR 7511(b)(1), an arbitration award may be [*5]vacated on application of a party who participated in the arbitration only if the rights of that party were prejudiced by (1) corruption, fraud, or misconduct in procuring the award; (2) partiality of a supposedly neutral arbitrator; (3) the arbitrator exceeding his powers so that no final and definite award was made; or (4) failure to follow procedures provided by CPLR article 75 (see Matter of IBK Enters., Inc. v Onekey, LLC, 70 AD3d 948 [2d Dept. 2010]; Wicks Constr., Inc. v. Green, 295 AD2d 527 [2d Dept. 2002]).

"An arbitration award can be vacated by a court pursuant to CPLR 7511(b)[(1)(iii)] 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 Miro Leisure Corp. v Prudence Orla, Inc., 83 AD3d 945[2sd Dept. 2011]; also see Matter of Erin Constr. & Dev. Co., Inc. v Meltzer, 58 AD3d 729[2d Dept. 2009]). In addition, an arbitration award may be vacated "if the court finds the rights of a party were prejudiced by . . . corruption, fraud or misconduct in procuring the award" (CPLR 7511[b][1][I]; see Matter of Westchester County Correction Officers Benevolent Assn., Inc. v County of Westchester, 81 AD3d 966 [2d Dept. 2011]).

Here, the petitioner failed to demonstrate the existence of any of the above enumerated grounds for vacating the award of the arbitration panel pursuant to CPLR 7511(b)(1). The petitioner's allegations of bias, corruption and irrationality are conclusory in nature and not factually supported by the record (see Scollar v Cece, 28 AD3d 317 [1st Dept. 2006]). At the arbitration hearing the TWU and the Transit Authority were given an opportunity to present witnesses, proffer evidence and make arguments in support of their respective positions. Petitioner was represented at the hearing by an attorney from the TWU. It is clear that the arbitrator considered the arguments submitted by both parties and had a rational basis for concluding that the petitioner's submission of a fraudulent application constituted misconduct. The arbitrator reviewed past precedent and reviewed the petitioner's disciplinary record and did not exceed his authority in sustaining the recommendation of dismissal as an appropriate and authorized penalty pursuant to the collective bargaining agreement (see Matter of Town of Newburgh v Civil Serv. Empls. Assn., 204 AD2d 464 [2d Dept. 1994]).

Accordingly, this court finds that vacatur of the arbitration award is not warranted since "the award did not violate a strong public policy, was not irrational, and did not manifestly exceed a specific, enumerated limitation on the [*6]arbitrator's power" (Matter of Local 456, Intl. Bhd. of Teamsters v City of Yonkers, 75 AD3d 555 [2d Dept. 2010]). Further, the plaintiff failed to meet her burden of proving by clear and convincing evidence that there was any impropriety or misconduct on the part of the arbitrator that prejudiced her rights with respect to the arbitration process or award (see Berg v Berg, 85 AD3d 950[2d Dept. 2011]).

Accordingly based upon the foregoing it is hereby

ORDERED AND ADJUDGED that the petition of Ms. Cassandra Murray, seeking an order vacating the award of the Arbitrator Pfeffer, in the Matter of the Arbitration between New York City Transit Authority and the Transport Workers Union, Local 11 (DAN No. 11-0001-0031) is denied.

Dated: Long Island City, NY

March 27, 2012

______________________________

ROBERT J. MCDONALD

J.S.C.