A state appeals court has taken the rare step of vacating an arbitrator’s decision, finding that it was “fundamentally irrational” for him to rule that a city bus driver’s alleged comments to a female colleague, that he would “stay in bed all day” and “oil her down,” fell short of sexual harassment.
The unanimous Appellate Division, First Department, panel also strongly criticized the arbitrator’s ruling for “maligning” and “blaming” multiple harassment victims at the New York City Transit Authority and, as a result, “inappropriately shift[ing] the burden of addressing a hostile work environment onto the employee” victims.
“The arbitrator’s decision belies the realities of workplace sexual harassment,” wrote Justice Sallie Manzanet-Daniels for the panel.
Citing violation of public policy and pure lack of rational thinking by the arbitrator, the panel reversed Manhattan Supreme Court Justice Alice Schlesinger’s 2016 decision affirming the arbitrator’s decision. The arbitrator, unnamed in the opinion, was Stephen O’Beirne, which multiple sources, including O’Beirne himself, confirmed.
An attorney for the driver and his labor union, meanwhile, contends that the appeals court ignored evidence they put forward.
As it was, though, Manzanet-Daniels pulled no punches.
“Although expressly agreeing with the pertinent factual findings in the investigation report of [the Transit Authority’s] Office of Equal Employment Opportunity (EEO)—including findings that [bus driver Tony] Aiken had stated to a colleague that if he had a woman like her he would stay in bed all day and ‘oil her down’—the arbitrator nonetheless, and incredibly and inconsistently with his own findings, ruled that the conduct did not ‘rise to the level’ of sexual harassment. We now reverse,” Manzanet-Daniels wrote.
Later, in likewise overturning O’Beirne’s decision to not allow Aiken’s firing, which had been ordered by the Transit Authority, Manzanet-Daniels again attacked his reasoning, stating that he had employed a “‘blame the victim’ mentality.”
“The arbitrator blamed [dispatcher Tulani] Melendez, as a supervisor [of Aiken’s], for failing to earlier report sexual harassment, reasoning, ‘If, as she testified, [Aiken’s] remarks caused her to feel angry, humiliated and upset, Melendez was obligated to tell him in no uncertain terms his comments were unwelcome and that she would take appropriate action if he did not cease and desist from making them,” Manzanet-Daniels wrote, quoting O’Beirne’s arbitration opinion.
The justice wrote that the reasoning was flawed and, in effect, turned the reporting-and-punishment process on its head, while creating a disincentive for harassed employees to come forward.
“It is the employer’s responsibility to implement appropriate policies to protect against workplace harassment,” Manzanet-Daniels wrote. “The arbitrator’s decision subverts this well-established policy by shifting the onus to the employee to report and fend off the harasser.”
She continued, “Indeed, the arbitrator’s decision emboldens future harassers to engage in pernicious misconduct … [and] victims would be less likely to report harassment, knowing that their employer will do little to protect them from even well-documented and pervasive misconduct. Employers’ ability to remedy such behavior would be undermined, limiting their ability to punish offenders and to deter similar behavior in the future.”
The panel’s opinion reversed O’Beirne’s decision, even as it acknowledged the high bar that must be cleared for it to do so. “Judicial review of an arbitration award is narrowly circumscribed, and vacatur limited to instances where the award is ‘violative of a strong public policy, is irrational, or clearly exceeds a specific limitation on an arbitrator’s power,’” Manzanet-Daniels wrote, quoting Matter of New York City Tr. Auth. v. Transport Workers Union of Am., Local 100, AFL-CIO, 306 A.D.2d 486 (2d Dept. 2003).
Throughout the opinion, she made the case that O’Beirne’s decision called for a rare judicial intervention.
O’Beirne, reached by phone on Thursday, declined to comment on both the panel’s decision and the harassment case more broadly.
“It’s always been my practice as an arbitrator never to comment” publicly on a matter, he said. “I don’t think it’s appropriate,” he added, and likened his role to that of “an umpire in baseball.”
In late 2012, Melendez, a bus dispatcher who worked with Aiken at the Kingsbridge bus depot in the Bronx, submitted a 13-page handwritten complaint to Transit Authority’s EEO detailing what she claimed were numerous unwanted advances and sexually inappropriate comments by Aiken, who was also a union delegate with the Transport Workers Union of Greater New York, Local 100, according to Manzanet-Daniels’ opinion and court records.
Melendez contended that, in retaliation for rebuffing his advances, Aiken humiliated her in front of others, Manzanet-Daniels wrote.
For instance, Melendez alleged that Aiken called her “sexy,” asked if she were looking for another husband, and said he’d act as her “sugar daddy,” Manzanet-Daniels wrote.
On one occasion, as bus operators were getting assignments from Melendez, Aiken allegedly said loudly, “Isn’t she fine? What would you do if you had a woman like her at home? I wouldn’t leave the house. I would stay in bed all day. I would oil her down.”
Two other times he allegedly placed his wallet down in front of other drivers and said, “I would give all of this for that [referring to Melendez],” Manzanet-Daniels wrote.
Melendez claimed she felt so humiliated and degraded by the conduct that on Nov. 11, 2012, she worked out of her car to avoid Aiken.
According to the court, the EEO’s subsequent investigation included interviewing Melendez, Aiken, another bus operator who also reported being harassed by Aiken, along with numerous dispatchers, bus operators, two managers and a union representative. A number of those interviewed corroborated Melendez’s accounts and none of them controverted her, Manzanet-Daniels wrote in the April 10 opinion, in which she was joined by First Department Justices Dianne Renwick, Rosalyn Richter, Richard Andrias and Ellen Gesmer.
Under the collective bargaining agreement between the Transit Authority and Transport Workers Union, the ensuing dispute between Aiken, who was fired, and the Transit Authority went to arbitration. Ultimately, O’Beirne ruled that Aiken’s actions, examined under the Transit Workers Union’s “Policy Instruction on Sexual and other Discriminatory Harassment,” did not call for firing and made it clear that it was the responsibility of supervisors to promptly address incidents of harassment. Instead of firing, he suspended Aiken from his job for 10 days and ordered him to complete a sensitivity training course.
The panel’s opinion undid that remedy, and ordered that a different arbitrator enter a finding that Aiken sexually harassed Melendez. In addition, the new arbitrator must decide whether “the penalty of termination” is appropriate.
But in an interview and emailed statement on Wednesday, the attorney for the Transport Workers Union, Local 100, and Aiken, vowed that his clients would attempt to appeal.
Arthur Schwartz, a principal attorney at the boutique labor-side firm Advocates for Justice Chartered Attorneys, complained about the overturn of O’Beirne’s decision and said that, in years past, he’d successfully gotten the Court of Appeals to undo Appellate Division reversals of arbitration awards he’d helped win for Transport Workers Union.
His primary contention was that the panel had wrongly ignored much of O’Beirne’s five pages of fact-finding, and instead focused on just “one sentence” from O’Beirne’s opinion, and the EEO report.
“The Appellate Division decision runs contrary to the law that should have been applied to an arbitration award. The court drew facts from an outside document issued by one party (the MTA EEO report), and discounted the fact-findings made by an arbitrator,” he said, adding, “An appellate court is not supposed to do its own fact-finding and substitute its judgment for that of the arbitrator.”
He claimed that O’Beirne’s larger conclusions were that Aiken’s behavior, in context, did not amount to harassment. Schwartz added that Melendez’s reporting of Aiken may have come in retaliation for Aiken first complaining about some of her work conduct.
“She was not someone who was easily intimidated. She was one tough supervisor,” he said. “[And] she didn’t report him until he complained about her.”
Tim O’Shaughnessy, a lawyer in the office of the Transit Authority’s General Counsel, helped represent the Transit Authority. He did not return a call seeking comment.