Opinion
INDEX NO. 653103/2019
09-10-2019
CAF DOWLAH, Petitioner, v. THE CITY UNIVERSITY OF NEW YORK, QUEENSBOROUGH COMMUNITY COLLEGE Respondent.
NYSCEF DOC. NO. 34 PRESENT: HON. LYLE E. FRANK Justice MOTION DATE 09/04/2019 MOTION SEQ. NO. 001
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 20, 21, 23, 25, 26, 27, 28, 29, 30, 31, 32, 33 were read on this motion to/for VACATE - DECISION/ORDER/JUDGMENT/AWARD.
Petitioner, a former tenured Associate Professor of Economics at the Department of Social Sciences of Queensborough Community College ("QCC"), seeks an order, pursuant to CPLR §7511 to vacate the Opinion and Award dated March 7, 2019, of Arbitrator Deborah M. Gaines of the American Arbitration Association. On March 7, 2018, the Arbitrator submitted her award together with her opinion, finding that the City University of New York ("CUNY") "had just cause" to terminate Professor Dowlah's employment. Respondents cross-move to dismiss the complaint, alleging that petitioner has failed to allege any facts that would satisfy the requirement to vacate the award and the petitioner has failed to file a Notice of Claim. For the reasons set forth below the petition is denied and respondents' cross-motion is granted.
In response to the notice of claim argument the petitioner argues that a notice of claim is not required in this special proceeding. The Court agrees, and as petitioner's legal arguments were not opposed, the Court finds this argument without merit.
Background
Petitioner began his employment by QCC in 2003, as an Assistant Professor of Economics and was promoted to Associate Professor in 2009. He applied for a promotion to full professor in 2014. His application was denied, and he grieved the decision. In 2016, the grievance was settled by an agreement, which provided that his application for promotion be submitted to a select faculty committee. The select committee was not formed until 2018. The Committee included, professors from three different colleges, none of which had ever met the petitioner before. After reviewing the petitioner's candidacy for promotion, the Committee unanimously decided not to recommend the Mr. Dowlah for promotion. Shortly thereafter, petitioner sent an email to the members of the committee that read in part:
Bringing down a fellow colleague so unscrupulously and so unjustly may bring great joy to your miserable lives, it doesn't do so to decent or conscientious people. Your juvenile indiscretion brought me to my knees, you made me feel like a piece of dirt, and knowingly or unknowingly, you ruined my life forever. Hope someday you will deal with what you have made me go through so horridly. Someday, my resentment towards you will most certainly fade into oblivion, but not my feelings - the hole that you created in my heart so mercilessly will live forever...And, I damn you all to hell - may your bodies and souls burn in eternal fires. - Caf Dowlah(emphasis added.)
Not a proud colleague of yours
In addition to the letter in question, Arbitrator Gaines found that the evidence demonstrated that Mr. Dowlah sent an inappropriate email to a colleague in 2015, was reprimanded as a result, and received guidance letters prior to that initial reprimand. Arbitrator Gaines determined, based on the credibility of the witnesses and her assessment of the evidence that CUNY established "just cause" to terminate Mr. Dowlah.
Arbitrator Gaines noted in her decision that she did not find Mr. Dowlah to be remorseful
Applicable Law
Pursuant to CPLR §7511(b)(1), an arbitration award can be vacated or modified on the grounds that:
(i) corruption, fraud, or misconduct in procuring the award;CPLR § 7511(b)(1).
(ii) partiality of an arbitrator appointed as a neutral, except where the award was by confession;
(iii) an arbitrator, or agency, or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or
(iv) failure to follow the procedure of this article. unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection.
To be upheld, the award must have evidentiary support or other basis in reason, appear in the record, and not be arbitrary or capricious (Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214 [1996]; Mount St. Mary's Hosp. v Catherwood, 26 NY2d 493 [1970]). The standard of review of a penalty imposed after a hearing is whether the punishment is so disproportionate to the offenses as to be shocking to the court's sense of fairness (Lackow v Dept. of Educ. (or "Bd.") of the City of NY, 51 AD3d 563 [1st Dept 2008] citing, Pell v Bd. of Educ., 34 NY2d 222 [1974]). "An award is not arbitrary and capricious or irrational simply because there are differing views as to the appropriate sanction." (Matter of Bolt v NY City Dept. of Educ., 30 NY3d 1065, 1069 [2018]). The Court of Appeals has held that termination of employment does not 'shock the conscience' when an employee has an otherwise unblemished career. See, id.; Matter of Ward v City of New York 23 NY3d 1046 [2014]; Matter of Lozinak v. Board of Educ. Of the Williamsville Cent. Sch. Dist. 24 NY3d 1048. Further, it should be noted that upon determining whether the penalty imposed "exceeds the bounds of acceptable punishment" the court should not replace the judgment of the arbitrator with its own. (Bolt 30 NY3d 1065 at 1071, citing Pell v Bd. of Educ., 34 NY2d 222 [1974]).
Based on the foregoing, this Court finds that Arbitrator Gaines's findings and determination that termination was warranted was deliberative, comprehensive, well-reasoned, supported by the record, and does not "shock the conscious". Accordingly, the petition is denied, the cross-motion to dismiss is granted and the proceeding is hereby dismissed.
Any requested relief not expressly addressed by the Court has nonetheless been considered and is hereby denied.
This constitutes the decision and order of the Court. 9/10/2019
DATE
/s/ _________
LYLE E. FRANK, J.S.C.