IN RE: the Application of Silvia Wright

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Supreme Court, New York County, New York.

IN RE: the Application of Silvia Wright, Petitioner, v. New York City Transit Authority and Veronique Hakim, Managing Director, Respondent.

155540/18

Decided: September 21, 2018

In a Petition brought under CPLR Article 78, petitioner Silvia Wright (Petitioner, or Wright), a former bus driver for defendant New York City Transit Authority (Transit Authority), seeks to nullify the termination of her employment and to be reinstated as a civil service employee by the Transit Authority. Additionally, Wright seeks back pay, lost benefits and time accruals. The Petition makes three claims for relief: the first claim is that her termination was arbitrary, capricious and an abuse of discretion, the second claim is that the termination is not supported by substantial evidence, and the third claim is that gender and race discrimination, as well as reprisal for reporting such discrimination, motivated her termination. Finally, Wright seeks a declaratory judgment acknowledging the veracity of each of her three "claims for relief."

By Verified Answer, the Transit Authority and defendant Veronique Hakim (Hakim) (together, the Transit Respondents) contend that the relief sought by Wright may only be sought by an CPLR Article 75 petition, and that Wright does not make the requisite showing to overturn an arbitral decision under Article 75 jurisprudence. The Transit Respondents ask the court, based on these arguments, to dismiss the Petition. Petitioner argues that her claims are properly analyzed under Article 78, but that, even under Article 75, she should be reinstated as a driver for the Transit Authority.

BACKGROUND

A cliché in football has it that one player's initial unsportsmanlike act is often unnoticed by the referee, while the recipient's reaction to the initial aggression is often both noticed and penalized. This Petition alleges a similar dynamic in a different setting with farther reaching consequences for the reacting party.

I. Initial Incident

The alleged initial aggression took place on May 23, 2017. Wright alleges that she was waiting, at the "Yard Shack" at the Michael J. Quill Bus Depot (the Quill Depot)1 to be assigned a bus to drive. Before she was given an assignment, she alleges that another Transit Authority driver, nonparty John Folk (Folk), entered from the back door of the room, "came up from behind me and ran his hands (both) from the bottom of my ankles to the top of my buttocks" (Respondent's ex E at 1, NYSCEF doc No. 13; see also Wright aff, ¶ 3, NYSCEF doc No. 3, Petition ¶ 9, NYSCEF doc No. 1). Wright testified that she turned around and saw Folk, that she was shocked, and that she began to cry (Respondent's ex B at 5, NYSCEF doc No. 10). Wright also told investigators that she "yelled" at Folk (Respondent's ex E at 2, NYSCEF doc No. 13). Petitioner alleges that Folk's alleged assault has caused her to suffer from post-traumatic stress disorder (Respondent's ex B at 7). Petitioner reported the incident to Transit Authority management on the same day as the incident.

On that day, May 23, 2017, the Transit Authority's Labor Relations Director, Hillary Tomlinson, notified the Transit Authority's Department of Equal Employment Opportunity & Diversity (Transit's EEOD or EEOD) of the alleged incident (Respondent's ex E at 1, NYSCEF doc No. 13). On May 24, 2017, the Transit's EEOD interviewed Wright about the incident and she filled out a complaint form, triggering an investigation (id.). Wright notified Transit's EEOD that she made a complaint of forcible touching against Folk to the New York City Police Department (NYPD) (id.). According to the Transit Authority, its own EEOD investigation was then stayed pending the NYPD investigation into the same incident (id.). On July 6, 2017, the NYPD notified the Transit Authority that it had closed its investigation, determining that "probable cause was not established" (id.).

Later that month, on July 31, 2017, the Transit Authority determined, as memoralized by a memorandum sent from investigators to Antonio Seda (Seda), an EEOD assistant vice president, that there was "no reasonable cause to find that Folk engaged in conduct that violates [the Transit Authority's] Sexual and Other Discriminatory Harassment Policy" (id.). In the memorandum, the EEOD investigators noted that the NYPD did not establish probable cause with respect to Wright's foricble touching complaint against Folk.

While Wright testified that she was shocked by the alleged groping, that she started to cry at the scene (Respondent's ex B at 5, NYSCEF 10), and she told Folk, "you can say whatever you want but don't touch me," (Wright's 5/23/18 statement), the EEOD investigators doubted her story because of her failure to react or speak sooner -- that is, before Folk's hands reached the top of her buttocks (id. at 2). "We note," the investigators wrote, "that the alleged touch which Wright demonstrated to [EEOD] staff was deliberate and slow -- with the palms of both hands going from her ankles, up the back of her legs, and not stopping until the top of her buttocks, lasting for two or three seconds" (id. at 2). Transit's EEOD "staff found it unlikely that someone would not react in any way during such an alleged touch."

The EEOD memorandum listed three other reasons for the determination that there was "no reasonable cause" to find that Folk had violated any Transit Authority policy. First, the EEOD investigators found that Folk "credibly denied the allegation against him" (id.). The EEOD does not elaborate or specify as the substance of Folk's denial. Second, the EEOD refers to the testimony of two nonparties, another bus driver and a surface line dispatcher, whom Wright had identified as potential witnesses to the incident, as they had apparently been in the "Yard Shack" at the time of the incident. Both Randolph Vialva (Vialva), the bus driver, and Edgar Woods (Woods), the line dispatcher, apparently told investigators that they neither saw the incident nor heard Wright yelling at Folk (id.). Finally, the EEOD determination noted that Folk, in 27 years with the Transit Authority, had not received any other complaints that were referred to Transit's EEOD department, and that he had not been disciplined for behavior relating to coworkers (id.).

On the same day that the determination was made, July 21, 2017, Wright was given notice that the Transit EEOD concluded that Folk had not violated any Transit Authority rules. This notice was conveyed by a phone call from Seda, the assistant vice president for Transit's EEOD (Respondent's ex B at 5, NYSCEF doc No. 10).

II. Second Incident

The Transit Authority told Folk that, during the pendency of the investigation into the initial incident, Folk was to stay away from Wright (Respondent's ex B at 4). However, Wright and Folk encountered each other a week after the incident, on August 7, 2017. This took place at the "Swing Room" at the Quill Depot, apparently a space for workers to relax during downtime. Wright was intermittently shooting pool and sitting on a stool. Friends of Folk were playing pool at another table, but, Wright alleges, when Folk entered the room he nevertheless sat very close to her and acted "in an intimidating and offensive" manner. (Wright aff, ¶ 3, NYSCEF doc No. 3). Wright believes that Folk was emboldened by the result of the Transit Authority's investigation into his alleged transgression, and she perceived him to "[look] her up and down as if he was undressing her with his eyes" (Respondent's ex B at 5-6, NYSCEF Doc. No. 10).

Wright, "emotionally upset" by this, reportedly said to Folk: "if you touch me again, I'll have my brother shoot you" (Wright aff, ¶ 3, NYSCEF doc No. 3). Wright does not remember saying this, but she tacitly acknowledges that she may have said it. However, she considers Folk's claim that the statement caused him to fear for his life both "disingenuous" and "implausible" (id.), particularly since the putative threat was made conditional upon Folk forcibly touching her body.

III. Wright's Pursuit of Federal Discrimination Claims

Wright filed a claim of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC), and, on December 6, 2017, she received a Notice of Right to Sue from the EEOC. On March 5, 2018, Wright filed a federal employment discrimination action, captioned Wright v NYC Transit Authority (18 Civ. 1968 [SDNY]). Pursuant to an Amended and Supplemental Complaint filed on May 23, 2018, Wright brought seven claims for relief against The Transit Authority: (1) for gender and race discrimination violating the Civil Rights of 1964; (2) for race discrimination in her termination violationg the Civil Rights Act of 1866; (3) retaliation in violation federal discrimation laws; (4) common-law battery; (5) common-law assault; (6) breach of contract; and (7) gender, race, disability discrimination (with reference to Post-Traumatic Stress Disorder that Wright alleges she developoed after the May 2017 incident) under the New York City Human Rights Law.

IV. Disciplinary Charges, Arbitral Opinion and Award, and Wright's Termination

Shortly after Wright filed her federal discrimination action, the Transit Authority, on March 22, 2018, charged her with a "Disciplinary Action Number." Internally, the disciplinary action against Wright was referred to as "DAN No. 18-3225-0145." The action referred to the alleged threat made by Wright on August 7, 2017, and was described by the Transit Authority as: "Gross misconduct, Threats of Violence in the Workplace, Failure to Comply and Conduct Unbecoming a Transit Employee which is a serious detriment to the services and operation of NYCTA, on or about August 7, 2017 while assigned to the Michael J. Quill Depot" (Arbitral Opinion and Award at 2, NYSCEF doc No. 10).

Pursuant to the collective bargaining agreement between the Transit Authority and the union representing its employees, the charge was brought before an arbitrator, Deborah Gaines (the Arbitrator). The arbitration was held on April 27, 2018 and both the Transit Authority and Wright were represented by counsel. The Arbitrator noted that Folk:

"testified that while he was watching his friend, Bus Operator Michael Flewellen play pool, Ms. Wright approached him and said words to the effect -- next time you touch me, I will get my brother to shoot you. Mr. Folk testified that he felt threatened and reported it to the police. He also interviewed [Transit EEOD] investigators"

(Respodent's ex B at 3).

Folk's friend, Michael Flewellen (Flewellen), testified as to Wright's alleged conditional threat and that he had not seen Folk ogling Wright. He also testified, however, that he was playing pool when Wright made the alleged threat and prior to that, while Wright alleges that Folk was ogling her (id. at 4).

The Arbitrator, while describing the positions of the parties, noted that the Transit Authority argued that, in earlier cases, the Transit Authority had upheld employment terminations for threats to life similar to the one that Wright allegedly made (id. at 6). The Transit Authority also argued that there were "no mitigating circumstances in this case to warrant a lesser penalty" (id.).

The Arbitrator found that "[t]he credible record evidence establishes Ms. Wright threatened Mr. Folk on August 7, 2017" (id. at 8). Important to this finding was not only that Wright never denied making the statement; instead she testified that, given the strong sense of fear she felt at the time, she could not remember what she had said. Also critical to the Arbitrator was "the specific nature of the statement -- citing her brother," which made the testimony of "both men" -- Folk and his friend, Flewellen -- "very credible" (id.).

The Arbitrator also credited Folk's testimony that he did not make eye contact with Wright in the Swing Room: "While I credit Mr. Folk that he did not make eyes at [Wright]," the Arbitrator wrote, "even if Ms. Wright believed he did, she had the choice to leave and discuss the issue with a manager" (id. at 10). The Arbitrator did not find any mitigating circumstances that might have distinguished this matter from other cases where Transit Authority employees were fired for making threats of violence. "Wright," the Arbitrator noted, claimed that any statements she made to Folk in the Swing Room were "made in the heat of the moment when she was in fear and only intended to ward off further harassment. Her claims," the Arbitrator concluded, "are not supported by the record" (id. at 9).

In supporting this conclusion, the Arbitrator attested to the thoroughness of the Transit EEOD investigation, whose findings are discussed above. "Moreover, I found Mr. Folk's testimony regarding the May incident credible" (id.). The Arbitrator did not elaborate as to why she found that testimony more credible than Wright's as to what occurred between them in the Yard Shack on May 23, 2017. Instead, the Arbitrator pivots: "More importantly, there was no evidence Mr. Folk did anything on August 7, 2017 which warranted the action taken by the Grievant. It is clear he did not enter the swing room for any other reason than to join his colleague on his break" (id. at 9-10).

Having discredited Wright's assertion on mitigating circumstances, the Arbitrator concluded: "Based on the seriousness of the offense, and prior arbitral precedent,2 I find no basis to disturb the penalty sought by the Authority." The arbitral Opinion and Award is dated May 15, 2018. In the Award section, the Arbitrator denied Wright's grievance because the Transit Authority "had just cause to discharge" her. The Transit Authority finalized the termination of Wright's employment on May 16, 2018. The following month, on June 12, 2018, Wright filed her Petition seeking to be reinstated as a bus driver with the Transit Authority.

DISCUSSION

I. Standard of Review

Before the court addresses Wright's claims of gender discrimination, it must first settle the dispute between the parties as to which provision of the CPLR should be used to evaluate Wright's claims: Article 78, the provision typically used to determine whether an action by a public benefit corporation was lawful, or Article 75, the provision used determined whether a court may vacate an award issued by an arbitrator. Petitioner brings the case under Article 78 and argues for its application, while Respondents argue in favor of Article 75.

The issue emerges in Respondents' Verified Answer. Respondents cite to Matter of New York State Nurses Assn. (Nyack Hosp.), which held that grounds set out for vacatur of an arbitral award in CPLR 7511 "are the exclusive bases for vacatur of an arbitral award" (258 AD2d 303 [1st Dept 1999]). The Petitioner argues that the arbitration was essentially an "intra-agency fact-finding process," not a formal arbitration and that the Arbitrator acted as an agency-friendly advisor to the Transit Authority, rather than as an impartial arbitrator.

Respondents submit the collective bargaining agreement (CBA) between Petitioner's union, the Transit Workers Union, Local 100, which provides for a three-step disciplinary process, the last step of which is an arbitration (Respondents' ex K, NYSCEF doc No. 19). Respondents also point out that both sides were represented by counsel and had an opportunity to cross-examine witnesses and introduce documentary evidence.

Petitioner argues that it was her understanding that the Transit Authority, rather than the Arbitrator, made the final decision as to her termination and that the Arbitrator was merely a part of the process, guaranteed by the collective bargaining agreement, that led to her termination. In any event, Petitioner argues that even if the court analyzed her claims under the standard for vacating arbitration awards under Article 75, she should still be reinstated, the arbitration Award and Opinion was irrational, biased, and beyond the Arbitrator's authority. As to the last point, Petitioner argues that arbitration violated the terms of the terms of the CBA because only one arbitrator heard the grievance, rather than three, as provided for by the CBA. Moreover, Petitioner argues that the Arbitrator failed to take the oath required of an Arbitrator 7506 (a).

Here, Petitioner is attacking a decision made by a public benefit corporation, the Transit Authority. More broadly, she is attacking a series of actions by the Transit Authority, beginning with her reporting of the May 23, 2017 incident and culminating nearly a year later with her firing on May 16, 2018. Thus, Petitioner is correct that Article 78 is an appropriate vehicle in which to bring her claims. However, Respondents are also correct that an arbitral award was the final, decisive part of the process that led to her termination. Thus, Article 75 is also an appropriate frame through which to analyze whether Petitioner is entitled to the ultimate relief that she seeks: reinstatement as a bus driver for the Transit Authority.3 Accordingly, the court will treat the Petition as a hybrid, and will analyze it under both articles of the CPLR.

II. Article 78

Under Article 78, "review of an administrative agency's action is limited 'to whether a determination was made in violation of lawful procedure, was affected by error of law or was arbitrary and capricious or an abuse of discretion.' " (Matter of Classic Realty v New York State Div. of Hous. & Community Renewal, 2 NY3d 142, 146 [2004], quoting CPLR 7803 [3]). An action is arbitrary and capricious, or an abuse of discretion, when the action is taken "without sound basis in reason and . . . without regard to the facts" (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]). Rationality is the key in determining whether an action is arbitrary and capricious or an abuse of discretion (id. at 231).

Matter of Pell reminded courts that we "have no right to review the facts generally as to weight of evidence, beyond seeing to it that there is substantial evidence" (id. at 230 [internal quotation marks and citation omitted]). The court's function is completed on finding that a rational basis supports the agency determination (see Howard v Wyman, 28 NY2d 434 [1971]). Where the agency's interpretation is founded on a rational basis, that interpretation should be affirmed even if the court might have come to a different conclusion (see Mid-State Management Corp. v New York City Conciliation and Appeals Board, 112 AD2d 72 [1st Dept 1985], affd 66 NY2d 1032 [1985]).

Here, the Transit Authority's investigation and determination of Folk's claims against Wright were irrational, particularly when viewed alongside the Transit Authority's investigation and determination of Wright's claims against Folk. The court points to four areas where Wright and Folk, and the parallel investigations into their claims against each other, were treated disparately: (1) consideration of their respective records over long careers with the Transit Authority; (2) treatment of the criminal complaints they made against one another to the NYPD; (3) the Transit Authority's skeptical inquiry into Wright's reaction to Folk's allegedly transgressive behavior compared to its non-inquiry into Folk's reaction to Wright's allegedly transgressive statement; and, relatedly, (4) the Transit Authority's affording credit and weight to Folk's testimony, while witholding both from Wright's testimony.

Aside from the arbitrarily disparate treatment afforded to Wright and Folk, the Arbitrator's finding as to absence of mitigation was irrational.

A. Wright and Folk's Careers at the Transit Authority

Both Wright and Folk are longtime Transit Authority employees. The record reveals no blemish on either of their records prior to their dueling complaints about one another. However, in the resolution of one of their complaints, that history is a factor. In the other, it is not. Here is how the EEOD investigators conclude the "Investigative Analysis" section of their memo clearing Folk of wrongdoing with respect to the May 23, 2017 incident: "Finally, we note that in Folk's twenty-seven year career at NYCT, he has not had nayother [EEOD] complaints filed against him and he has not received any discipline relating to interactions with coworkers" (Respondents' ex E at 2, NYSCEF doc No. 13).

Wright worked at the Transit Authority for over 30 years, although the Arbitrator reports this term of service as 19 years (Wright aff, paragraph 1, NYSCEF doc No. 3; Respondents' ex B at 4, NYSCEF doc. No. 10). During her employment, Wright was never, prior to Folk's complaint, accused of violence or threats of violence in the workplace (Wright aff, paragraph 2, NYSCEF doc. No. 3). The "Discussion" section in the arbitral award finding that the Transit Authority had just cause to fire Wright, despite being six pages, compared to the half-page "Investigative Analysis" in Folk's inquiry, never discusses Wright's lack of disciplinary history relating to violence or threats of violence.

Clearly, there is a disparity in how the Transit Authority has considered and weighted Wright and Folk's history of employment and lack of relevant infractions during their respective employments. This disparity exists for no articulated, principled reason. It is, then, arbitrary and capricious. Alone, this might not push the Transit Authority's decision overall to terminate Wright into a field of irrationality. It does not, however, exist in isolation.

B. Treatment of the Respective NYPD Complaints

Both Wright and Folk made complaints to the NYPD regarding each other's conduct. In the Transit Authority's investigation into Folk, the EEOD investigation was stayed while the NYPD investigated (Respondent's ex E at 1, NYSCEF doc No. 13). Moreover, the closing of the NYPD investigation into Folk was reported in the EEOD memo, as was the NYPD's finding that probable cause was not established (id.). While Folk reported Wright's alleged conditional threat to the NYPD (see Respondent's ex B at 3), Transit Authority never reports or takes into account whether the NYPD took the complaint seriously enough to open an investigation or what the fate of that investigation was. Nor is there any indication from the Transit Authority if it stayed its investigation while the NYPD looked into the matter. Thus, with respect to the parallel police complaints made by Wright and Folk against each, the Transit Authority, treated Wright and Folk's differently for reasons that are arbitrary and capricious.

C. Scrutiny Into Wright and Folk's Purported Reactions

The EEOD investigators doubted Wright's story because of her failure to react sooner; that is, before Folk's hands reached the top of her buttocks: "we note," the investigators wrote, "that the alleged touch which Wright demonstrated to [Transit's EEOD] staff was deliberate and slow -- with the palms of both hands going from her ankles, up the back of her legs, and not stopping until the top of her buttocks, lasting for two or three seconds" (id. at 2). Transit's EEOD "staff found it unlikely that someone would not react in any way during such an alleged touch."

Is there a principle of justice or human behavior that requires a person to react within two or three seconds to an unforeseen groping? Are shock or momentary paralyis preposterous or incredible responses to a forcible touching from behind? No, they are not. Is it irrational to infer, as the Transit Authority did, that a reaction of momentary silence followed by tears, and verbal bounary-drawing is "unlikely." Yes, it is.

Did the Transit Authority take a similarly skeptical and second-guessing approach to examining Folk's purported response to Wright's alleged conditional threat? No. Folk purports to have not reacted to Wright's alleged conditional threat. If it had applied the same irrational ex-post-facto scrutiny to Folk, perhaps it would have found it unlikely that a person in his circumstance, particularly one who has denied groping Wright, would not have reacted. Surely, if a woman is expected to react within 2 or 3 seconds of being groped from behind, a man in Folk's position might be expected to respond to a conditional threat, within 2 or 3 seconds, by saying something to the effect of: "As I have not touched you in the past, and I do not intend to touch you in the future, I expect that your brother and I will continue co-existing peaceably."

This would have been as irrational a standard to apply to Folk, as it when the Transit Authority applied it to Wright. That is because people react to traumatic experiences in different ways, and there is no one standard response that makes any alternative response unlikely. While it was irrational that this standard was applied to Folk, it was also arbitrary and capricious that it was not also applied to Folk.

D. Crediting of Folk's Testimony, Discounting Wright's

The record is riddled examples of the Transit Authority accepting, conclusorily, Folk's statements and discounting Wright's without any principled reason for the disparate treatment. For example, the Arbitrator's decision to "credit Mr. Folk that he did make eyes" during the August 7, 2017 incident (ex B at 10, NYSCEF doc No. 10). Here, the Arbitrator's was provided with diametrically opposing evidence from Wright, who testified that Folk was looking at her intently. Folk's friend, Flewellen, was playing pool while the alleged ogling took place, so his not having seen it is immaterial. Thus, faced with conflicting testimony, the Arbitrator, without articulating a principled reason, credited Folk's account and discounted Wright's. This is arbitrary and capricious.

This echoes what happened in the investigation of the May 23, 2017 incident. While Wright had listed possible witnesses, there were no actual witnesses of the Wright/Folk interaction that day. The Transit Authority, faced with conflicting stories from Wright and Folk, determined that Wright's account had "no reasonable cause" to be true.

E. Mitigation

On page 9 of the arbitral award, the Arbitrator notes that Wright testified that any comments she made to Folk were made in the heat of the moment, while she was in the grip of fear, and intending to ward off further non-consensual violations of her body (NYSCEF doc No. 10). In the following sentence, the Arbitrator concludes thast these "claims are not supported by the record" (id.). The Arbitrator's dismissal of Wright's subjective state of mind is arbitrary and not based based on any evidence. Instead, it is based on the assumption that the prior EEOD investigation made a correct determination and, therefore, Wright had nothing to fear. Here, especially since Wright has alleged that she suffers from PTSD from the May 23, 2017 incident, it was irrational of the Arbitrator to discount Wright's emotional state at the time she made the alleged conditional threat as a mitigating factor.

For the five reasons outlined above, plaintiff is entitled to a remand to the Transit Authority, who should undertake another investigation into the August 7, 2017 incident "guided by progressive discipline," as required by the CBA (NYSCEF doc No. 19 at 37). Further, the Transit Authority should consider and weigh: Wright's work history, and lack of prior violations relating to violence or threats of violence; the outcome of the NYPD's treatment of Folk's claims against Wright; mitigating factors, such as Wright's emotional state at the time of the August 7, 2017 incident. Moreover, the Transit Authority must not use Wright's lack of response during the two or three-second alleged groping as evidence that it did not happen. Finally, Wright's testimony as to her actions on August 7, 2017 should not be discounted or discredited because the Transit Authority did not take disciplinary action against Folk on the basis of Wright's allegations regarding his conduct on May 23, 2017.

III. Article 75

"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" (Matter of New York City Tr. Auth. v Phillips, 162 AD3d 93 [1st Dept 2018] [internal citation and quotation marks omitted]). As to irrationality, an arbitral award may be vacated under CPLR 7511 (b) (1) (iii), which refers to an arbitration that is "imperfectly executed" to a high degree.

In Phillips, the First Department agreed with the Transit Authority, the petitioner there, that an arbitral award -- finding that an employee's sexual harassment of another employee in the workplace did not warrant his firing -- was irrational. Accordingly, the First Department vacated the arbitral award and remanded, "to different arbitrator to enter a finding" consistent with its opinion (162 AD3d at 101-102). Here, the arbitral award is also irrational, as discussed above, and must be remanded to a different arbitrator or arbitral panel.

This leads us to a more technical argument that Petitioner makes in her efforts to undermine the arbitral decision. The CBA calls for a "Tripartite Arbitration Board" in "the event that [a] disciplinary grievance is not satisfactorily adjusted with the Authority's Deputy's Vice President" (NYSCEF doc No. 19 at 43). CPLR 7511 (b) (1) (iii), in addition to highly imperfect execution, allows for vacatur when the arbitrator "exceeded his power." The parties have not fully briefed the question of whether Petitioner was entitled to a tripartite panel rather than a single arbitrator, and, if this did contravene the CBA, whether it did so to such an extent that the arbitrator exceeded her power such that vacatur under CPLR 7511 (b) (1) (iii). For this reason, and because the court has already determined that the arbitral award should be vacated as irrational, the court does not reach this issue.

Courts, such as the First Department in Phillips, have also said that arbitral awards may be vacated where they are "violative" of a strong public policy. In Phillips, the Court identified a strong public policy against sexual harassment and noted that this policy is rooted in Title VII of the Civil Rights Act of 1964 (162 AD3d at 97). This public policy is tangentially connected here, given the curving factual path of this Petition. However, the arbitral decision here is arguably violative of different, but closely related public policy: that people be treated equally in the workplace regardless of their gender.

This policy is strongly expressed in the New York City Human Rights Law (the City's Human Rights Law). The First Department has recognized that the New York City Council, by the Local Civil Rights Restoration Act of 2005, to be stronger than comparable state and federal anti-discrimination law (see Williams v New York City Housing Authority, 61 AD3d 62, 68 [2009]). In Williams, the First Department introduced a broad standard for evaluating gender discrimination in the workplace: "for HRL liability the primary issue for a trier fact is whether the plaintiff has proven by a preponderance of the evidence that she had been treated less well than other employees because of her gender" (id. at 78).

Here, there at least a pressing question as to whether the Transit Authority's disciplinary process treated Wright less well than Folk because of their respective genders. The Arbitrator's decision was violative of the strong public policy of people being treated equally without regard to their gender because it ratified, in a rubber-stamp fashion, the process that gave rise to this question. Thus, the arbitral decision should be vacated not only because of its irrationality, but also because it is violative of a strong public policy.

IV. Hakim

Hakim is the president of the Metropolitan Transportation Authority,4 a legally distinct public benefit corporation from the Transit Authority. Accordingly, she is plainly not a proper party to the Petition and all claims as against her must be dismissed.

CONCLUSION

Accordingly, it is

ORDERED that the Petition is dismissed as against Veronique Hakim; and it is further

ORDERED that petitioner Silvia Wright's Petition is granted to the extent that, pursuant to CPLR Article 75, the arbitral award dated May 15, 2018 is vacated, and the issues raised under the jurisdiction of the arbitrator therein are remanded to a different arbitrator or arbitral panel for further consideration; and it is further

ORDERED that petitioner Silvia Wright's Petition is granted to the extent that, pursuant to CPLR Article 78, the issues raised herein relating the to the termination of her employment on May 16, 2018 by respondent New York City Transit Authority (Transit Authority) are remanded to the Transit Authority for further consideration; and it is further

ORDERED that the Transit Authority's application to dismiss the petition is denied; and it is further

ORDERED that counsel for petitioner Silvia Wright is to serve a copy of this decision, along with notice of entry, on all parties within 10 days of entry.

Dated: September 21, 2018

Hon. Carol R. Edmead, J.S.C.

FOOTNOTES

1.   Michael J. Quill was one of the founders of the Transport Workers Union of America, and the bus depot named in his honor is located at 525 11th Avenue in Manhattan.

2.   The Arbitrator does not discuss the precedents in any detail, and only notes that they involved threats to the life of another employee and that the employees making the threats were fired.

3.   Respondents do not argue that the Petition should be dismissed because Petitioner did not bring it under Article 75, merely that the court should use Article 75 to analyze the Petition.

4.   The Metropolitan Transportation Authority, or MTA, is a public benefit corporation providing public transportation primarily in New York, but also in parts of Connecticut.

Carol R. Edmead, J.