Matter of Kowaleski v. New York State Department of Correctional Services

Summary

The New York Court of Appeals held that an arbitrator exceeded a specifically enumerated limitation on his power by refusing to consider and determine an employee's retaliation defense under Civil Service Law § 75-b. Because the arbitrator failed to separately determine whether the disciplinary action was retaliatory, the court vacated the arbitration award and remitted the matter for further proceedings. The court explained that a disciplinary action may be retaliatory even if the employee committed the alleged misconduct.

Holdings

1. When an employee raises a Civil Service Law § 75-b retaliation defense in arbitration, the arbitrator must consider and determine the merits of that defense as part of the arbitration award, regardless of contrary limitations in the collective bargaining agreement.
2. The arbitrator exceeded a specifically enumerated limitation on his power by refusing to consider and determine Kowaleski's retaliation defense, requiring vacatur of the award under CPLR 7511(b)(1)(iii).
3. It was insufficient for the arbitrator merely to consider retaliation evidence in evaluating witness credibility and determining guilt; section 75-b required a separate determination of whether the disciplinary action was based solely on retaliatory motive.

Questions Presented

1. Whether an arbitrator was required under Civil Service Law § 75-b to consider and determine on the merits an employee's affirmative defense that disciplinary action was retaliatory for whistleblowing.
2. Whether the arbitrator's failure to separately consider the retaliation defense constituted an excess of power requiring vacatur of the arbitration award under CPLR 7511(b)(1)(iii).
3. Whether consideration of retaliation evidence in assessing witness credibility and guilt was sufficient to satisfy Civil Service Law § 75-b.

Disposition

reversed_and_remanded