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Wednesday, October 12, 2011

Arbitrator’s award entitled to great weight by is not preclusive

Arbitrator’s award entitled to great weight by is not preclusive
Pender v District Council 37, AFSCM, USDC, SDNY, 2002 WL 31164470

Among the issues considered by Federal District Court Judge Chin in the Pender case was the amount of weight to be given to an arbitration award by the court in a lawsuit involving essentially the same complaint and the same parties that were earlier considered by an arbitrator.

Judge Chin's conclusion: the arbitrator's decision "is but one piece of evidence -- albeit an important piece ... entitled to great weight -- to be considered in the context of the entire record."

Patricia A. Pender complained that her former employer, District Council 37 of the American Federation of State, County and Municipal Employees [DC-37], violated the Americans with Disabilities Act and New York States Human Rights Law when it fired her because of her disability. She filed a grievance protesting her dismissal and ultimately the matter was submitted to arbitration.

While the grievance arbitration proceeding was pending, Pender filed a charge of discrimination with the Equal Employment Opportunity Commission against DC-37, alleging that DC-37 had unlawfully discrimination against her because of her disability. Pender received a right-to-sue letter from the EEOC on April 25, 2000. By this time, the arbitrator had issued her award, rejecting Pender's grievance. DC-37 asked Judge Chin to dismiss Pender's complaint, contending that the arbitration award was preclusive and thus there was nothing left for the court to determine.

Judge Chin ruled that in this situation the arbitrator's decision was entitled to great weight, but not preclusive weight. She found that Bonnie Siber Weinstock, "an experienced labor arbitrator, conducted the grievance arbitration, at which the both Pender and DC-37 presented documentary and testimonial evidence and examined and cross-examined witnesses under oath."

Weinstock, said the court, issued a 23-page opinion and award, rejecting Pender's grievance and finding that DC-37 did not violate the collective bargaining agreement when it terminated Pender's employment because she was unable to perform the duties and responsibilities of a DC-37 Council Representative, even with reasonable accommodations. Noting that the arbitrator had specifically addressed Pender's ADA claim "on the merits" and had assumed that Pender had a "disability" within the meaning of the ADA.

In making her decision, Judge Chin said that the arbitrator concluded that Pender "was unable to perform the essential functions of a Council Representative with or without an accommodation."

Why was the arbitrator's decision entitled to great weight? Because, said the court, the issue before the arbitrator was largely one of fact, well suited for resolution in the traditional labor arbitral format -- whether Pender could perform the essential functions of the Council Representative position -- and the arbitrator gave full consideration to Pender's ADA claim.

As Weinstock's decision was entitled to great weight and since "no jury could reasonably conclude, on the basis of the record before the Court that Pender's rights under the ADA and New York law were violated," Judge Chin dismissed her petition.

In considering DC-37's motion to dismiss Pender's complaint, Judge Chin reviewed the role of arbitration decisions in civil rights litigation in the light of "three leading Supreme Court decisions" addressing this issue: Alexander v Gardner-Denver Co., 415 US 36; Gilmer v Interstate/Johnston Lane Corp., 500 US 20; and Wright v Universal Maritime Service Corp., 525 US 70.

In Gardner-Denver, the Supreme Court ruled that a union employee "does not forfeit his private cause of action if he first pursues his grievance to final arbitration under the nondiscrimination clause of a collective-bargaining agreement."

In Gilmer, the Supreme Court said that mandatory arbitration clauses are enforceable and that an employee could waive his or her right to bring federal statutory claims to court.

In the Wright case, the Supreme Court decided that even assuming a collective bargaining agreement arbitration clause is enforceable to compel arbitration of an employee's statutory discrimination claim, such a clause would only be enforced if it was "particularly clear" that it was intended to cover such claims.

Considering these three rulings, Judge Chin concluded that in this instance the arbitration procedure satisfied the several concerns set out by the Supreme Court. The bottom line: although Weinstock's decision was not entitled to preclusive effect, it was entitled to "great weight." The “weight” issue for the court to determine:

Considering the arbitration award together with all the evidence in the record, would a reasonable jury find for Pender on the issue of discrimination? In Judge Chin's view the answer was no and this finding required the court to dismiss Pender's petition.

Judge Chin commented that the collective bargaining agreement in effect furnished full statutory protections, as it provided that "[t]he employer shall comply with all applicable law in the area of non-discrimination in employment practices" and the "degree of procedural fairness in the arbitral forum was high."

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at

A Reasonable Penalty Under The Circumstances at

The Disability Benefits E-book: at

Layoff, Preferred Lists at


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