Monday, October 17, 2011

EEOC claims tempered by arbitration award

EEOC claims tempered by arbitration award
Collins v NYC Transit Authority, CA2, 305 F.3d 113

An employee is terminated from his or her position. The dismissal is sustained by an independent tribunal such as an arbitrator. The employee claims that he or she was really terminated by the employer in retaliation for his or her filing a compliant alleging that the employer violated his or her civil rights. Such an allegation, however, is difficult to prove if the employee's dismissal "for cause" has been upheld by an independent arbitrator. The facts and decision in Collins' case demonstrates this proposition.

New York City Transit Authority [NYCTA] Power Maintainer's Helper James Collins, an African American, was disciplined for insubordination after he refused to drive a truck he alleged had faulty brakes.

Collins subsequently filed a complaint with the New York State Division of Human Rights [SDHR] alleging that he was subjected to actions that he characterized as constituting unlawful discrimination such as his supervisor telling him that he could not attend a meeting of his work crew. After Collins filed this complaint with the Division, he contended that his supervisor accused him of using NYCTA equipment -- a vacuum cleaner -- for purposes unrelated to his work and that the supervisor used racial slurs against him when confronting him with this accusation.

In September of 1988, Collins was placed on an involuntary medical leave without pay as a result of his having "failed" a hearing test. Collins demanded, and was given, a retest of his hearing by a different physician. As a result of this second test, Collins was reinstated to his position. Claiming that he was placed on involuntarily leave because of his race, causing him to lose a significant amount of salary; Collins filed another discrimination claim with the SDHR/EEOC.

Collins' relationship with both his co-workers and his supervisors continued to deteriorate following his return from this leave. In the summer of 1990, Collins was disciplined following a dispute with a co-worker. In this instance, however, the arbitration board ruled there was not enough evidence to substantiate the claim and thus discipline was not warranted.

A new supervisor was assigned to Collins' unit. Collins' new supervisor reported three incidents of alleged misconduct and insubordination to the Superintendent of the Electrical Department. The supervisor also claimed that Collins had threatened him. The Superintendent, concluding that there was not sufficient evidence to support initiating disciplinary action against Collins, suggested that Collins be transferred to another unit. Collins said that he viewed this recommendation as retaliation.

In June of 1991, Collins was involved in another incident with his supervisor, which culminated with Collins allegedly punching the supervisor. As a result, NYCTA terminated Collins. Collins then filed a disciplinary grievance, which was ultimately considered by an arbitration panel in accordance with the terms set out in the Collective Bargaining Agreement. The arbitration panel sustained Collins' termination in a decision dated October 22, 1991.

After receiving a copy of the panel's decision, Collins filed yet another complaint with SDHR. SDHR transmitted the complaint to the Equal Employment Opportunity Commission [EEOC] for processing. After receiving a "right to sue" letter from EEOC in 1993, Collins sued NYCTA claiming that the Transit Authority, among other violations of law:

1. Discriminated and retaliated against him in violation of Title VII of the Civil Rights Act of 1964; and

2. Retaliated against him in violation of the 1st Amendment of the Constitution of the United States.

A federal district court judge granted the Authority's motion for summary judgment dismissing Collins' discrimination complaint and he appealed. The 2nd Circuit Court of Appeals sustained the lower court's ruling, observing that although a plaintiff's burden of demonstrating a prima facie case is minimal, Collins failed to satisfy even this minimal standard.*

The Second Circuit ruled that Collins failed to establish that his termination was a result of either retaliation or discrimination. Thus, said the court, he did not establish a prima facie case of unlawful discrimination.

In particular, the court found it significant that the final decision to terminate Collins was based on substantial evidence after a hearing before an independent board of arbitrators. The court noted that the arbitration panel conducted three days of hearings and issued a 14-page decision. The Circuit Court also noted that the board of arbitrators was a creature of a Collective Bargaining Agreement and was "undisputedly independent, neutral, and unbiased."

More often than not, the most difficult aspect of demonstrating a prima facie case is establishing the causal link between the protected activity and the adverse employment decision. In this case the Court apparently relied on the fact that Collins' dismissal was sustained after being considered by an independent arbitration panel after a hearing.

The Court noted that the fact that an arbitration panel finds an individual guilty of misconduct and sustains his or her termination does not in and of itself preclude the possibility of the individual proving a prima facie case. The fact that an independent body found "just cause" for dismissing the individual just makes the task more difficult.

In such a situation, said the court, the individual must present strong evidence to support his or her allegations of unlawful discrimination. Such strong evidence could include demonstrating that the arbitration process itself was somehow tainted. No such proof was presented by Collins.

This decision suggests that if an employee alleges he or she was terminated in violation of Title VII and the termination was sustained by an independent arbitrator, it may be advisable for the individual to first attempt to vacate the arbitrator's award before attempting to demonstrate a prima facie case of unlawful discrimination.

* To establish a prima facie case, the individual must show that (1) he or she was engaged in protected activity; (2) that the employer was aware of the activity; (3) that he or she suffered an adverse employment decision; and (4) that there was a causal link between the protected activity and the adverse employment decision.

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

The Discipline Book at

Challenging Adverse Personnel Decisions at

The Disability Benefits E-book: at

Layoff, Preferred Lists at


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