NYC Human Rights Law Discrimination Claim Survives, Notwithstanding Union Arbitrator’s Finding of Reasonable Cause to Terminate Employment

In Mouscardy v Consolidated Edison Company of New York, No. 2018-14239, 4431/08, 2020 N.Y. Slip Op. 03656, 2020 WL 3551808 (N.Y.A.D. 2 Dept., July 01, 2020), the court, inter alia, held that an arbitrator’s determination that the employer had reasonable cause to terminate plaintiff’s employment did not collaterally estop plaintiff from proceeding with his claim of discrimination under the New York City Human Rights Law.

From the decision:

We agree with the Supreme Court, however, that the arbitrator’s award did not have preclusive effect on the plaintiff’s claims. An arbitrator’s award may be given preclusive effect in a subsequent judicial proceeding (see Nachum v. Ezagui, 83 A.D.3d 1017, 1018–1019, 922 N.Y.S.2d 459; Chiara v. Town of New Castle, 61 A.D.3d 915, 916, 878 N.Y.S.2d 755; Cooks v. New York City Tr. Auth., 289 A.D.2d 278, 279, 734 N.Y.S.2d 207). However, “arbitration is an inappropriate forum for the disposition of an employment discrimination claim where ‘the arbitrator’s sole task is to effectuate the intent of the parties in connection with the collective-bargaining agreement, and not to consider a statutory claim of discrimination … The violation of these contractual and statutory rights by the same factual occurrence does not vitiate their separate nature’ ” (Caban v. New York Methodist Hosp., 119 A.D.3d 717, 718, 989 N.Y.S.2d 313, quoting Uryevick v. Pepcom Indus., 155 A.D.2d 450, 451, 547 N.Y.S.2d 109). Thus, the arbitrator’s decision did not have preclusive effect on the plaintiff’s separate action based on unlawful discrimination in employment (see Von Maack v. Wyckoff Hgts. Med. Ctr., 140 A.D.3d 1055, 1056, 37 N.Y.S.3d 126; Caban v. New York Methodist Hosp., 119 A.D.3d at 718, 989 N.Y.S.2d 313), and the complaint is not barred by the doctrine of collateral estoppel.

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