Kornichuk v Transport Workers Union Local 252
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Kornichuk v Transport Workers Union Local 252 2011 NY Slip Op 32702(U) October 10, 2011 Supreme Court, Nassau County Docket Number: 22970/10 Judge: Joel K. Asarch Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ----------------------------------------- - [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU: LA. PART 17 ---- ------------------- J( fHLEEN KORNICHUK Plaintiff, DECISION AND ORDER - agaist - IndeJ( No: 22970/10 TRASPORT WORKRS UNION LOCAL 252, TRANSPORT WORKRS UNON AMRICA, ALF- CIO, INTERNATIONAL TRASPORT WORKRS UNION and Motion Sequence No: 001 Original Retu Date: 04- 19- PATRICIA BOWDEN, Defendants. ------------------------------------------------------------------ J( PRESENT: HON. JOEL K. ASARCH, Justice of the Supreme Court. The following named papers numbered I to 5 were submitted on this Notice of Motion on 2011: May 19, Papers numbered Notice of Motion and. Affnnation in Support Memorandum of Law in Support Affirmation in Opposition Reply Affrmation This motion by the defendants Transport Workers Union , Local 252 (" Local 252" ) and them Patricia Bowden (" Bowden ) for an order pursuant to CPLR 3211(a)(I), (5) and (7) granting judgment dismissing the complaint against them is decided as follows: The plaintiff in this action is a former employee of the Transport Workers Union, Local 252. She was an at- will employee and was not a member of Local 252. Her employment was termnated on December 16, 2009 by the defendant Bowden , the President of Local 252. In this action [* 2] , the plaintiff seeks to commenced by the filing of a Summons with Notice on December 15, 2010 recover: (1) for retaiation in alleged violation ofW orkers ' Compensatio 120 , which protects Law 740, which protects whistleblowers; (2) negligent workers ' compensation claims , and Labor Law supervision; and (3) intentional tort. The defendants Local 252 and its President , defendant Bowden , seek dismissal of the (a )(7). The facts pertinent to complaint on collateral estoppel grounds and pursuant to CPLR 3211 the determination of this motion are as follows: The plaintiff filed a chum for unemployment benefits and Local 252 challenged that award. , 2010 at which A hearing was held before the Unemployment Insurance Appeals Board on July 1 all paries were represented by counsel. At the hearng, the was injured on the job on October 21 plaintifftestified that she 2009; that ' compensation claim in November 2009; on the advice of her doctor, she sought to file a workers that her hours were cut on or about December and that she contacted the defendant ' compensation claim; 8th or 9th because of her workers International Transport Workers Union (" to complain about those events on December 15, 2009. The plaintiff testified that the next day immediately asked her about the status International Union when she arved at the offce , Mar Flaiban ofa scaning job , which the plaintiff reminded her they had plaitiff testified that Flaiban was agreed did not need to be done until the Christmas break. The , whereupon Flaiban anounced nasty and yellng and so she asked her why she was harassing her arived at work. The plaintiff testified that Bowden then screamed to Bowden that the plaintiff had from her offce for her to come to see her. The plaintiff testified that when.sheentered Bowden she offce , Bowden , Samuels and Flaiban were all present. She testified that Bowden asked her why [* 3] had called the International Union and Bowden told her she had no rights because she was not in the " there. The plaintiff testified that she told Bowden that she had union and that she was " nobody par time. She admitted called the International Union because she had been told that she was going par time however, that Bowden had told her that she was going.par time because she wanted two workers , not because of her workers ' compensation claim. She testified that Bowden told her not , and that her par-time to contact the International Union again, that she would be fired if she did status was to take effect immediately because she had contacted the International Union. Plaintiff testified that she was ultimately compensati terminated by Bowden that day on account of her workers claim and her complaint to the International Union. She denied ever being asked leave Bowden s office that day and to come back on Monday o " Local 252' s employees (President Bowden, Juanta Samuels), however, disagreed with the raising her voice that day. Mar Flaiban and Local 252' s Vice President plaintiffs version of events. Bowden testified that her attitude when answering the the plaintiff had a history of work problems. More specifically, phone was problemati ; her breaks were overly frequent and extended; whether she put in a full day s work was questioned; and she was uncooperative in scheduling time off leaving the office short-handed. Bowden testified that it was these things that led her to cut the plaintiff s hours. The plaiIrdff was told appro)(imately a week before she was fired that her hours were being reduced in Februar. Bowden , Flaiban and Samuels testified that on December 16 she had completed an assignment, to which the plaintiff protested - , Flaibanasked the plaintiff if screaming and accusing Flaiban of harassing her. They testified that Bowden then asked the plaintiff to come Jo her office and that refused to sit down and continued once in Bowden s offce , the plaintiff to scream, accusing [* 4] Bowden, Flaiban and Samuels of being a clique. They testified that she repeatedly asked why ' compensation claim and Bowden was picking on her and whether this was because of her workers she was told that it was not. They testified that the plaintiff was told to stop screaming several times and that when she persisted in screaming, she was asked several times to go home for the day. They the meeting was the result of her testified that the plaintiff persisted in yellng and alleging that They testified that workers ' compensation claim and/or her contact with the International Union. although Bowden told her it was not and that she couldn International Union because it could not help her t understand why she had called the , she continued to scream and asked " am I fired?" They testified that the plaintiff refused to leave and instead stated that " that she "had it; " and, that she couldn they would finish this noW; t take it anymore. Defendant Bowden ultimately answered fied. plaintiff in the affrmative i.e ., that she was in fact In his decision captioned " Issues: loss of employment through misconduct. Employer objection to claimant' s entitlements, " the Administrative Law Judge credited Local 252' testimony and rejected the plaintiffs. s employees The Administrative Law Judge accordingly found that the plaintiff s hours were reduced due to her job performance and that she was discharged because she continued to yell and argue with the Local 252' s president defendant Bowden on December 16th , not The because of her workers ' compensation claim or her contact with the International Offce. to job misconduct Administrative Law Judge accordingly found that because she was terminated due she was not qualified to receive unemployment benefits. Under the doctrine of collateral estoppel, a par is precluded from ' relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that par or those in privity, whether or not the tribunals or causes of action are the same. [* 5] Vitello v Ambov Bus Co. , 83 AD3d 932 (2 NY2d 494 , 500 (1984). "Two elements must be necessarily decided in the prior action Ryan v New York Tel. Co., Dept 2011), quoting established: (1) that ' the identical issue was ; and (2) that the and is decisive in the present action precluded par ' must have had a full and fair opportnity to contest the prior determination. Vitello v Amboy Bus Co., 659, 664 D' Arata v New York Cent. Mut. Fire Ins. Co. supra , quoting (1990). " Collateral estoppel is applicable to quasi-judicial determination of administrative Vitelo v Ambey Bus Co. supra, quoting agencies, including the (Workers ' Compensation Board)." , at p. 499; Ryan v New York Tel. Co. supra 816 (2 Dept 2003); , 76 NY2d Gorman v Joural Ri!Zopolous v American Museum News Westchester , 2 AD3d 815 ofNatualHistorv, 297 AD2d 728, 729 (2 there are variations in the facts alleged Dept 2002). Even where " separately stated causes of action may , or different relief sought , the neverteless be grounded on the same gravamen of wrong , 193 (1981); Smith v Russell Sage College, 54 NY2d 185 upon which the action is brought." also Statsbur!! Water Co. v Staatsburg Fire District , 72 NY2d 147 (1988). Collateral applies when "the finding for which preclusive effect (is) sought was a legal rights of a par to the proceeding. Staatsbur!Z Water Co. v estoppel necessar step in fixing the Staatsburg Fire Distrct supra at p. 155. The plaintiff s claims are bared by the doctrne of collateral issue determined at the Administrative Hearng was the plaintiffs estoppel. While the ultimate entitlement to unemployment benefits, the determining factor was clearly the reason for her termination; to wit: was it her job misconduct or her workers ' compensation claim coupled with her complaint to. the International plaintiffs on-the-job Transport Workers Union? The Administrative Law Judge found thatthe _ was both " material" and " necessarly misconduct caused her termination. That finding decided" in [* 6] the administrative proceeding and is " decisive " here. The plaintiffs claims advanced here for violations of the Workers' Compensation Law and the Labor intentional tort seek to recover for her termination. Given the Law, negligent supervision and Adminstrative Law Judge s finding, those claims fail. In any event , the plaintiffs retaliation claim which is premised upon her fiing a workers compensation claim and contacting the Intemational Union when her hours were cut fails under CPLR 3211(a)(7). The plaitiffs claim pursuant to Workers ' discrimination by an employer for fiing or attempting to fie a within the Workers ' Compensation Board' Compensation 9 120 which bars compensation claim , s jursdiction. Workers ' falls exclusively Compensation Law ~ 120; , a plaintiff can recover Burlew v AmericanMut. Ins. Co.. 63 NY2d412, 416 (1984). Furermore under Workers ' Compensation Law 9 120 only if " employer s challenged action. no other valid reason is shown to exist" for the A valid reason for the plaintiffs termination was found by the Administrative Law Judge after a hearing at which the plaintiff fully paricipated. 740 fails because Labor Law 9 740 protects The plaintiff s claim pursuant to Labor Law an employee against " retaliatory personnel action ' when the employee discloses or theatens to disclpse a violation of law, rule or regulation and the violation presents a danger to public health and safety. NY2d 801(1990); see also , 76 Lebowitz v Bank Leumi Trust Co. , 152 AD2d 169 (2 Dept 1989); GranservBox Tree South. Ltd. , 164 Misc 2d 191 (Supreme Cour New York County 1994). An employee 200 specific Remba v Federation Emplovment and Guidance Service Green v SaratogaA. R.C. , 233 AD2d 821 (3,d Dept 1996); is insuffcient. substatial and s belief that a violation occurred Nadkar v North- Shore Long Island Jewish Health SYstem , 21 AD3d 354 (2 Dept Dept 1995). The plaintiff has HUl!hes v Gibson Courier Services Corp , 218 AD2d 684 (2 [* 7] not alleged that she disclosed or threatened to disclose a violation of law, rule or regulation which presents a substatial and specific danger to public health and safety. She only alleges that she was fired for filing a workers ' compensation claim and for complaing to the International Union about the cut in her hours. Plaintiffs present reliance on 42 use ~ 2003e- 3(a) is misplaced as she has not advanced a Title VII claim. The plaintiff s claim for negligent supervision and intentional tort also fail under CPLR claims. 3211 (a)(7). By imposing a whistleblower/retaliation claim, the plaintiffhas waived all other , 193 Misc 2d496 (Supreme Cour New Feinman v Mot!!an Stanlev Dean Witter Labor Law 740 (7); York County 2002). Moreover , the plaintiff has not alleged that Local 252 or any of the defendant uni iS know or should have known of Bowden s propensity for conduct that caused her injur, Care!!ie v J. P. Philip, which is a required element of a claim sounding in negligent supervision. Inc ., 28 AD3d 599 (2 Dept 2006). Finally, Bowden canot be held liable for negligently prima facie tort for supervising herself and New York does not recognize a cause of action based on wrongful discharge of an at-will employee. AD2d 341 (2 Dept2000). citing Dailey v Tofel. Berelson. Saxl & Parers, Schrieber v St. John' s University. 195 AD2d 544 (2 nd P. , 273 Dept 1993), affd;as mod , 84 NY2d 120 (1994). Accordingly, after due deliberation, it is ORDERED, that the motion by the defendants Transport Workers Union Local 252 and defendants is Patricia Bowden for an Order dismissing the complaint against these action is dismissed against these defendants. Settle judgment. granted and the [* 8] This constitutes the Decision and Order of the Court. Dated: Mineola, New York October 10 2011 ENTER: Copies mailed to: Mayer, Ross & Hagan, P. Attorneys for Plaintiff ENTEREr" OCT 12 2011 Colleran, O" Hara & Mils, LLP. Attorneys for Defendants Local 252 and Bowden Coh n, Weiss and Simon, LLP Attorneys for Defendant Transport Workers Union NASSAU COUNTY COUNTY CLERK' S OFFICi,
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