Opposition Brief — Jaworowski v. New York City Transit Authority

No. 99-542

IN THE

Supreme Court of the Unjted States

Pkcivic COURS, ”.S. |

LEONARD JAWOROWSKI,

Petitioner,

-against-

NEW YORK CITY TRANSIT AUTHORITY, ALAN F. KIEPPER, as former

President of New York City Transit Authority, and LAWRENCEG. REUTER,

as President of the New York City Transit Authority,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

RESPONDENTS' BRIEF IN OPPOSITION TO

PETITION FOR AWRIT OF CERTIORARI

MARTIN B. SCHNABEL

General Counsel and

Counsel of Record

New York City Transit Authority

Attorney for Respondents

130 Livingston Street, Room 1230

Brooklyn, NY 1120!

(718) 694-5719

KENNETH HOWARD SCHIFFRIN

Of Counsel

THE REPORTER COMPANY, Printers and Publishers, Inc.

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(7776 ~ 1999)

Printed on Recycled Paper

Counter-Statement of Question Presented for Review

Whether the United States Court of Appeals for the Second

Circuit properly applied prevailing case law in dismissing the

same due process claims herein that plaintiff had previously

raised in a proceeding in state court where the state court had

decided those very claims against petitioner and had confirmed

the arbitration award upholding petitioner's termination.

TABLE OF CONTENTS

Page

Counter-Statement of Question Presented For Review ..... i

Table of Comtemtt « as iccécakaae eae ae denen saeeeens ii

Table of Authore® 2 scasvchansecnsseb ds eeu eveeexns iv

Counter-Statement on Ree ry Per er er Tere vi

Counter-Statemeont OF 00 GONG cc cecencceeewaesnsnses l

A. Factual Backqn osc vuiusveeewesecs seweave 2

B. Procedural ace osc cost cess deuacesece sea 4

C. Transcripten DAG |: succeed ee reese eekse bens 5

D. Completion of AMINE 3 bicécsaseswrieccdde cu 6

E. The Decisions ORG coc sc vei saveb nut kauseseens 9

Reasons For Denying The Petition .................. 13

POINT I

CASE LAW REGARDING ISSUE PRECLUSION

COMPELLED DISMISSAL OF PETITIONER'S

COMPLAING § ...:sssdupas eb eeeeeubaneeene aaa 14

POINT II

PETITIONER WAS ACCORDED DUE PROCESS .. 17

CONCLUSION ....<0sssundan eeeeeeaneeeesheeees 20

il

TABLE OF CONTENTS

Appendix A:

Memorandum Decision of the Supreme Court of The State

of New York, County of Kings (Hon. James W.

Hutcherson, J.S.C.) Dated May 23,1996 ............ Al

Appendix B:

Order (Hon. Nina Gershon, U.S.D.J.) of the United States

District Court, Eastern District of New York, Dated

ee A6

Appendix C:

Summary Order of the United States Court of Appeals for

the Second Circuit, Entered June 4, 1999 .......... Al5

TABLE OF AUTHORITIES

Cases:

Alexander v. Cortes, 140 F.3d 406 (2d Cir., 1998) ...... 17

Antinore v. State of New York, 49 A.D.2d 6 (4th

Dept., 1975), affid, 40 N.Y.2d 921 (1976) ........... 18

Auburn Police Local 195, Council 82, AFSCME

AFL-CIO v. Helsby, 62 A.D.2d 12 (3rd Dept.,

1978), affid, 46 N.Y.2d 1034 (1979) ............... 18

Beatus v. Gebbia, 4 F. Supp.2d 256 (S.D.N.Y. 1998) .... 16

Costello v. Town of Fairfield,811 F.2d 782 (2d

Oe ere rrr rrr rere TT ery Tyre Tre reer 19

Evans v. Monaghan, 306 N.Y. 312 (1954) ............ 17

Hickerson v. City of New York, 146 F.3d 99

(2d Cir. 1998), cert denied 119 S.Ct. 795, 142

L.Ed.2d 658, 67 U.S.L.W. 3430 and 3434

i AS PP ee Te eee rer Err eT ere 14, 15, 16

McClary v. O'Hare, 786 F.2d 83 (2d Cir. 1986) ........ 19

Rhinestone v. New York City Transit Authority,

142 A.D.2d 562 (2nd Dept. 1988) .................. 6

Sussman v. New York City Health and Hospitals Corp.,

1997 WL 33496 G.D.N.Y. 1997) 2... ccccccccccccss 19

iV

| Bch ist aaa ial

a

bi

FEDERAL STATUTES:

Unites States Constitution, First Amendment ........... 2

United States Constitution, Fourteenth Amendment ...... 2

42 U.S.C. $1983 2... ccc ese cece scccesccccecs vi, 2, 11

NEW YORK STATUTES

Administrative Code of the City of New York,

Sacting 19-16) ooo iknnse tbe dw bss wi nee theas eden 7,8

New York Civil Practice Law and Rules, McKinney's

Laws of New York, Volume 7B, Article 75 ....... 8,17

New York Civil Practice Law and Rules, McKinney's

Laws of New York, Volume 7B, Article 78 ........ 4,8

New York Civil Service Law, McKinney's Laws of

New York, Volume 9, § 75 ........ 0c eee e cece eee: 3

New York Public Authorities Law, McKinney's Laws

of New York, Volume 42, § 1201 ............4.-: ye

Vv

Counter-Statement on Jurisdiction

Petitioner seeks review of a summary order of the United

States Court of Appeals for the Second Circuit, entered June 4,

1999, which affirmed the order of judgment of the United States

District Court for the Eastern District of New York (Nina

Gershon, Judge), which had granted summary judgment to

respondent New York City Transit Authority (hereinafter,

"Transit Authority"), petitioner's former employer, and dismissed

petitioner's complaint. Petitioner brought this action pursuant to

42 U.S.C. § 1983 alleging various constitutional infirmities in a

disciplinary arbitration proceeding that upheld his termination.

The district court and circuit court both concluded that petitioner

is estopped from raising his constitutional challenges to the

arbitration considering that the same claims had been raised and

decided in the New York State court proceeding.

vi

No. 99-542

IN THE

Supreme Court of the United States

LEONARD JAWOROWSKI,

Petitioner,

-against-

NEW YORK CITY TRANSIT AUTHORITY, ALAN F.

KIEPPER, as former President of New York City Transit

Authority, and LAWRENCE G. REUTER, as President of the

New York City Transit Authority,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

RESPONDENTS' BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

Counter-Statement of the Case

Petitioner seeks review of a summary order of the United

States Court of Appeals for the Second Circuit, entered June 4,

1999, which affirmed a judgment of the United States District

1

Court for the Eastern District of New York based upon the order

of the Hon. Nina Gershon, dated September 18, 1998, which

granted respondents’ summary judgment motion and dismissed

the complaint. Petitioner had brought that complaint pursuant

to 42 U.S.C. § 1983 against his former employer, respondent

Transit Authority, respondent Alan F. Kiepper, the Transit

Authority's former President and Lawrence G. Reuter, the

current Transit Authority President.’ Plaintiff claimed alleged

procedural and substantive due process violations of his First and

Fourteenth Amendment constitutional rights regarding an

arbitration hearing and award dated May 22, 1995 that upheld

his termination as a Structure Maintainer, Group B for

misappropriating Transit Authority property and receiving pay

based on a falsified time record. ;

Specifically, petitioner claimed due process violations for the

arbitration panel's failure to stay the arbitration hearing and for

precluding a stenographic record of the arbitration hearing

(A185).? However, respondents successfully argued below that

the doctrine of collateral estoppel, i.e., issue preclusion, barred

this action in view of the denial of petitioner's virtually identical

arguments in a state court proceeding. The petition for review

has now ensued.

A. Factual Background

Respondent Transit Authority is a public benefit corporation

existing pursuant to New York Public Authorities Law, § 1201

et seq. for the purpose of operating transit facilities in New York

City for the convenience and safety of the public. (A26). The

' Plaintiff subsequently withdrew his claims against defendants Kiepper

and Reuter. (A186, A189).

? Numbers in parentheses preceded by "A", unless otherwise indicated,

refer to pages in the Joint Appendix to the Circuit Court.

2

oe Se ee ee ee ee

Transit Authority thus performs a governmental function by such

operation. New York Public Authorities Law, § 1201. (A26).

Respondent Kiepper previously served as President of

respondent Transit Authority during the relevant times covered

in petitioner's complaint and respondent Reuter currently serves

as President of respondent Transit Authority. (A26).

Petitioner was initially appointed as a Maintainer's Helper,

Group D in the Transit Authority on June 8, 1970 and was a

Structure Maintainer, Group B for the Infrastructure Division of

the Subways Department when dismissed from service effective

May 22, 1995. (A27).

The Transit Authority notified petitioner on April 28, 1995,

of his suspension without pay pending termination in view of

allegations that he falsified his arrival time record on April 20,

1995 and had unauthorized possession and control of a Transit

Authority cement mixer as well as other Transit Authority

property such as an impact wrench and demo hammer. Those

alleged actions violated Rules 2(b), 5(a), 6(b), 8(a), 10(a) and

13(b) of the Rules Governing Employees Engaged in the

Operation of the New York City i ransit System. (A27, A33-A41).

The Transit Authority took this disciplinary action pursuant

to its collective bargaining agreement with petitioner's union, the

Transport Workers Union, Local 100 (hereinafter, 'TWU"). The

collective bargaining agreement provides applicable disciplinary

grievance and arbitration procedures in Section 2.1(C) (A27,

A42-A49).

The provisions, adopted in lieu of New York Civil Service

Law, Section 75, present a multistep administrative process

culminating in arbitration before a Tripartite Arbitration Board

whose decision is final and binding. (A27, A48-A49). Petitioner

both grieved the disciplinary action and concurrently filed for

Sn

retirement with the New York City Employees Retirement

System effective May 27, 1995. (A27, A50-A51).

The Step I Meeting on May 1, 1995 resulted in a decision

sustaining the charges and penalty and petitioner appealed this

Step I decision. (A27, A50-A51). A subsequent decision

thereafter resulted on May 5, 1995 sustaining the charges and

dismissal penalty and petitioner also appealed that decision.

(A28, A52).

B. Procedural Background

Petitioner subsequently commenced a proceeding pursuant to

New York Civil Practice Law and Rules (CPLR) Article 78 on

Tuesday, May 16, 1995, eleven days after appealing the May 5,

1995 decision, and sought, inter alia, to stay the Tripartite

Arbitration Board hearing scheduled for two days later on May 18,

1995 at 12:00 p.m. (A28). Justice Levine granted petitioner's

application to the extent of ordering that the Tripartite

Arbitration on May 18, 1995 at 12:00 p.m. be stayed pending the

hearing of that Article 78 petition. (A28, A53-A54). Respondents

therein, the Transit Authority, Kiepper, Carmen Suardy, Vice

President, Labor Relations for respondent Transit Authority and

Leonard Grumbach, Deputy Vice President, Labor Relations for

respondent Transit Authority, appealed that show cause order

the following day, May 17, 1995 and notified opposing counsel

by faxed letter that such appeal restrained the stay and allowed

the arbitration to proceed. (A28, A55-A63). The above

respondents subsequently served a notice of intention to seek

leave to appeal on May 18, which equally restrained the stay in

the event an issue arose regarding the propriety of the notice of

appeal. (A28, A64).

Petitioner addressed the stay issue by moving for a stay in the

Appellate Division, Second Department but Justice Sullivan of

that court struck that portion of petitioner's show cause order, as

indicated in the Appellate Division order. (A28, A65-A66).

Instead, Justice Sullivan recognized the statutory stay

respondents had already obtained and made petitioner's

application returnable on Thursday, May 25, 1995 regarding

"vacating the automatic stay obtained by respondents-appellants

by virtue of their appeal from the order of May 16, 1995."

(Emphasis added.) (A28-A29), A65-A66). Indeed, Deputy

Clerk Edman of the Appellate Division stressed Justice Sullivan's

belief that petitioner needed to exhaust his administrative

remedies and could ultimately seek relief after the disposition of

the administrative proceedings. (A29).

Consequently, the Tripartite Arbitration Board hearing

proceeded on May 18, 1995 shortly after 2:00 p.m. and after

rejecting petitioner's request to delay the hearing. The Board's

action balanced the equities to allow the arbitration to proceed

to conclusion considering that petitioner's imminent retirement

on May 27, 1995 would have mooted the disciplinary

proceeding. (A29).

C. Transcription Issue

The Board also rejected petitioner's application to transcribe

the proceedings. Rejecting the transcription request followed the

Board's own prior rulings as well as Appeilate Division case law.

Indeed, the Board had rejected an identical request for

transcription in 1988 in the Matter of Eddie Brumfield, as

indicated in the letter from then Impartial Chairman Lois A.

Rappaport. (A29, A67-A70).

The relevant correspondence further reveals that the

Appellate Division, Second Department had reversed Supreme

Court, Richmond County and refused to allow a transcript of

another Transit Authority-TWU Tripartite Arbitration hearing in

Rhinestone v. New York City Transit Authority, 142 A.D.2d

562 (1988). (A29, A69). There, the Court noted the relevant

portion of the collective bargaining agreement which provided,

as here (A48), that ''No transcript of the arbitration hearing shall

be required." (A29-A30, A48, A69). In addition, the Court

upheld Arbitrator Zuccotti's ruling that "...absent the consent of

the Transit Authority, he would not allow stenographic

transcription of the hearing even if the petitioner were to pay for it."

(A30, A69).

D. Completion of Arbitration

The Tripartite Arbitration Board completed petitioner's

hearing on May 18, 1995 and thereafter issued an Interim Award

and then a Final Award, both dated May 22, 1995, which

sustained by majority vote the decision to suspend and terminate

petitioner. (A30, A71-A77).

The Board's opinion first explained its basis for sustaining the

charges:

[T]he un-rebutted and uncontradicted evidence establishes

the charges by a fair preponderance of the evidence.

Grievant's attempt to impeach and discredit the IG agents'

eyewitness identification must fail in the face of

overwhelming direct evidence that grievant was one of the

three men who removed TA property and drove it in his

vehicle to Pennsylvania. Also, grievant's denial, that he

did not falsify his time record by signing in at 10:00 p.m.,

must fail. The IG agents' testimony placed grievant on the

highway at 10:00 p.m., the time he signed in and was paid

for. (A30, A75).

The Board then explained its reasoning for upholding the

dismissal penalty:

Having sustained the charges, the Board finds insufficient

mitigating circumstances to reduce the penalty of

discharge. There is insufficient evidence to show that the

Transit Authority knew of and approved grievant's action

in taking/borrowing TA property. The fact that an

attempt was made to cover up the time when the cement

mixer was removed from TA property shows that grievant

and other employees were aware that such conduct was in

violation of official TA rules and regulations. The attempt

to cover up the property removal by falsifying a log entry

shows a clear intent of misconduct which goes beyond a

misunderstanding of TA rules and regulations prohibiting

misappropriation of TA property. Grievant's falsification

of time records likewise is a clear intent of misconduct.

Under such circumstances, the Transit Authority was

within its right to conclude that such intentional

misconduct and violation of TA rules amounted to theft

and justified discharge. Notwithstanding, grievant's long

work history, the Board cannot say that the TA's

imposition of the penalty of discharge was arbitrary,

capricious, unreasonable, or in violation of its own rules

and regulations or the collective bargaining agreement.

(A30-A31, A76).

Consequently, the Transit Authority terminated petitioner

effective May 22, 1995. (A31, A78).

Petitioner's termination for receiving pay based on a falsified

time record and for taking Transit Authority equipment, i.e., a

cement mixer, impact wrench, and demo hammer, off Transit

Authority property for personal use or benefit divested him of

accrued retirement benefits pursuant to Section 13-161 of the

Administrative Code of the City of New York. (A31).

Petitioner subsequently withdrew both his Article 78 proceeding

and his Appellate Division application for an Order to Show

Cause regarding the stay issue. (A31, A79-A80). Thereafter,

petitioner initiated a proceeding in Kings County Supreme Court

against respondent Transit Authority, respondent Kiepper and

Carmen Suardy then Vice President, Labor Relations for

respondent Authority seeking, under New York CPLR Article

75, to vacate and set aside the arbitration award herein. (A31,

A81-A157). Petitioner raised the same due process grounds

presently raised regarding refusal (a) to adjourn the arbitration

hearing and (b) to allow stenographic transcription of the

hearing. (A31, A81-A157). Respondents Transit Authority,

Kiepper, and Suardy answered and counterclaimed for an order

confirming the arbitration award. (A31). Justice James W.

Hutcherson subsequently issued a five-page decision and order

dated May 23, 1996 denying the application to vacate and

granting the cross-motion to confirm the award. (A311,

A158-A162). Justice Hutcherson's ruling specifically rejected

the very arguments petitioner again makes in this case:

Petitioner's allegation that the arbitrator was obligated to

adjourn the arbitration pending the court's determination

and the request for a stay is without merit. Granting or

refusing an adjournment lies within the discretion of the

arbitrator Reele v. B. Healy NY Corporation, 54 AD2d

1039, and petitioner has failed to demonstrate that denial

of the adjournment amounted to misconduct. Moreover,

in this instance where the CBA provides that "No

transcript of arbitration hearing shall be required", it was

within the arbitrator's discretion not to allow stenographic

transcription of the hearing. See, Rhinestone v. New

York City Transit Authority, 142 AD2d 562; Reele v. B.

Healy NY Corporation, supra. (A32, A160-A161).

Petitioner did not appeal Justice Hutcherson's order and

decision. (A32). Instead, he initiated this federal case. (A32,

A163, Al-A12). Respondents answered and subsequently

successfully moved for summary judgment on the ground that

collateral estoppel, i.e., issue preclusion, bars the action.

(A13-A23, A24-A162, A181-A189).

E. The Decisions Below

Judge Gershon reviewed the case law regarding the doctrine

of collateral estoppel (A186-A187) and pertinently noted that:

From a comparison of the verified petition filed in the

Article 75 proceeding and the complaint in the present

Section 1983 action, it is clear that the same issues

plaintiff raises here as due process claims were previously

raised in identical constitutional terms. Plaintiff does not

dispute that he previously raised the same constitutional

issues in the Article 75 proceeding and that the Supreme

Court, Kings County, decided these issues against him.

Nor does he contend that the Supreme Court in the

Article 75 proceeding could not hear the constitutional

claims. Instead, he contends, in essence, that he did not

have a full and fair opportunity to litigate the issues in the

Article 75 proceeding because of the limited judicial

review available in Article 75 proceedings. (A187).

Judge Gershon then explained that:

The grounds for vacating an arbitration award pursuant to

Article 75 include a claim that the plaintiff's due process

rights were violated. Mount St. Mary's Hospital of

Niagara Falls v. Catherwood, 26 N.Y.2d 493 (1970).

(A188).

Hence, she cogently concluded that:

[P]laintiff cannot demonstrate the lack of a full and fair

opportunity to litigate his claims that the arbitrator

engaged in misconduct rising to the level of a

constitutional violation when he refused to adjourn the

arbitration hearing and refused to allow plaintiff to record

it. Such legal claims are clearly available in Article 75

proceedings challenging either compulsory or consensual

arbitrations. Id. [Mount St. Mary's Hospital of Niagara

Falls v. Catherwood, 26 N.Y.2d 493 (1970); see also id.

at 513 (Fuld, J., concurring) (New York "courts now have

the right to review ... whether the [arbitrator] violated

basic due process requirements in the conduct of the

proceedings."). Since the identical due process issues

plaintiff raises in the present action were previously raised

and decided by the Supreme Court in the Article 75

proceeding, plaintiff is precluded from bringing those

claims here. (A188).

The Second Circuit Court of Appeals similarly summarized

preclusionary principles:

"{A] federal court must give to a state court judgment the

same preclusive effect as would be given that judgment

under the law of the State in which the judgment was

rendered." Migra v. Warren City Sch. Dist. Bd. Of Educ.,

456 U.S. 75, 81 (1984). "New York law provides that an

issue may not be relitigated if the identical issue was

necessarily decided in a previous proceeding, provided

that the party against whom collateral estoppel is being

asserted had a full and fair opportunity to litigate the issue

in the prior action."" Hickerson v. City of New York, 146

F.3d 99, 104 (2d Cir. 1978).]

10

Bitibesuniiei un

The Second Circuit opinion then noted that:

The state court's confirmation of the arbitration award

necessarily rejected ail of the challenges that Jaworowski

had made to the award. And Jaworowski admits that his

§ 1983 suit does not assert any claims that were not

made-and therefore rejected-in the state court. That

Jaworowski made other allegations of error that also were

not accepted by the state court does not negate the fact

that Jaworowski's current suit asserts only claims that the

State court already rejected.

Finally, the Second Circuit opinion summarized New York

law pertaining to setting aside an arbitration:

Although it is true that one ground for vacating an

arbitration decision is to show that the award is "totally

irrational," see Board of Educ. v. Dover-Wingdale

Teachers' Ass'n, 61 N.Y.2d 913, 915, 463 N.E.2d 32, 32,

474 N.Y.S.2d 716, 716 (1984), a court applying New

York law will also vacate an arbitration if it finds that the

arbitration violated due process, see Beckman _v.

Greentree Securities, Inc., 87 N.Y.2d 566, 570, 663

N.E.2d 886, 888, 640 N.Y.S.2d 845, 847 (1996);

Republique Francaise v. Cellosilk Mfg. Co., 309 N.Y.2d

269, 276, 128 N.E.2d 750, 753 (1955) ("The arbitration

award having been thus procured in violation...of due

process was null and void."). Thus, contrary to

Jaworowski's assertions, New York state courts do not

review constitutional challenges to arbitration decisions

more deferentially than do federal courts. We therefore

need not decide whether, if such a disparity existed, it

would provide a basis for not applying collateral estoppel

to bar Jaworowski's claims.

io

Lhe

Consequently, the court below held that:

..Jaworowski is estopped from raising his constitutional

challenges to the arbitration, having already litigated these

same claims in New York state court.

12

Reasons For Denying The Petition

Collateral estoppel properly applied in this case considering

that the state court proceeding rejected the same claimed

constitutional due process violations alleged herein and that the

state proceeding afforded plaintiff a full and fair opportunity to

contest the due process issues. No due process violation

occurred in any event in the state court's decision. That decision

rejected plaintiff's efforts to delay the arbitration hearing,

especially considering his imminent retirement which would have

mooted the disciplinary proceeding. In addition, the state court

decision adhered to the judicially approved contractual provision

excluding stenographic transcription of the arbitration hearing.

Hence, the district court properly granted summary judgment

and the circuit court properly affirmed.

13

POINT I

CASE LAW REGARDING ISSUE PRECLUSION

COMPELLED DISMISSAL OF PETITIONER'S

COMPLAINT

Issue preclusion analysis barred petitioner's action: The

Second Circuit had explained in Hickerson v. City of New York,

146 F.3d 99, 104, 109 (1998), that:

New York law provides that an issue may not be

relitigated if the identical issue was necessarily decided in

a previous proceeding, provided that the party against

whom collateral estoppel is being asserted had a full and

fair opportunity to litigate the issue in the prior action.

See e.g. In re Sokol, 113 F.3d 303, 306 (2d Cir. 1997);

Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500-01, 478

N.Y.S.2d 823, 826-27, 467 N.E.2d 487, 490-91 (1984)...

Collateral estoppel will only apply if plaintiffs had a

"full and fair opportunity" in New York state court to

litigate the issues that they now seek to relitigate in federal

court. See In re Sokol, 113 F.3d at 306; Ryan, 62 N.Y.2d

at 501, 478 N.Y.S.2d at 826, 467 N.E.2d at 490.

Plaintiffs, as the parties opposing the application of

collateral estoppel, bear the burden of proving that they

were denied this full and fair opportunity. See In re

Sokol, 113 F.3d at 306; Kaufman v. Eli Lilly & Co., 65

N.Y.2d 449, 456 N.Y.S.2d 584, 588, 482 N.E.2d 63, 67

(1985). Included among the factors to be considered are

"the nature of the forum and the importance of the claim

in the prior litigation, the incentive and initiative to litigate

and the actual extent of litigation, [and] the competence

and expertise of counsel." [Ryan, 62 N.Y.2d at 501, 478

N.Y.S.2d at 826, 467 N.E.2d at 490].

14

This Court subsequently denied certiorari in Hickerson earlier

this year, 119 S.Ct.. 795, 142 L. Ed.2d 658, 67 U.S.L.W. 3430

and 3434 (January 11, 1999).

These factors warranted granting summary judgment here

considering that (1) the due process and transcription issues

constituted the predominant basis for petitioner's special

proceeding in state supreme court; (2) the special proceeding

met "...the minimum demands of procedural due process" as

required by Kremer v. Chemical Construction Corp., 456 U.S.

461, 483-84, 102 S.Ct. 1883, 1898-99 (1982): (3) petitioner's

desire to vacate his termination and retire with a lucrative

pension provided an overwhelming incentive and initiative to

litigate; and (4) the voluminous materials petitioner submitted

regarding the state proceeding (A81-A157) show that extensive

litigation occurred by competent counsel.

Indeed, the district court recognized that

... it is Clear that the same issues plaintiff raises here as due

process claims were previously raised in identical

constitutional terms. Plaintiff does not dispute that he

previously raised the same constitutional issues in the

Article 75 proceeding and that the Supreme Court, Kings

County, decided those issues against him.

(A187-emphasis added).

Consequently, petitioner's only real dispute concerns whether he

had "... a full and fair opportunity to litigate the issues in the

Article 75 proceeding because of the limited judicial review

available in Article 75 proceedings." (A187).

15

However, the district court stressed that:

The grounds for vacating an arbitration award pursuant to

Article 75 include a claim that the plaintiff's due process

rights were violated. Mount St. Mary's Hospital of

Niagara Falls v. Catherwood, 26 N.Y.2d 493 (1970).

(A188).

Furthermore, the decision in Beatus v. Gebbia, 4 F. Supp.2d

256, 260, 261 (S.D.N.Y. 1998) regarded Article 75 proceedings

as providing a full and fair opportunity to contest an arbitration

award and thus held that "collateral estoppel can be applied [, as

here,] to a confirmed arbitration award entered as a final

judgment."

Hence, the rationale in the Hickerson case equally governs

this case:

In sum, under the full faith and credit statute and New

York's law of collateral estoppel, plaintiffs may not

relitigate their ... claim in federal court because the same

issues that are dispositive of this claim have already been

decided in state court. Plaintiffs had a full and fair

opportunity to litigate these issues in state court, and they

raise no valid ground for barring the application of the

doctrine of collateral estoppel. [146 F.3d 99, 113].

Indeed, petitioner's papers simply reiterate the very same

meritless due process claims rejected by Justice Hutcherson in

State court after a thorough analysis. That determination clearly

negates any argument that the issues before the state court were

distinguishable from the issues in the present action.

16

POINT Il

PETITIONER WAS ACCORDED DUE PROCESS

The balancing of equities, in conjunction with relevant case

law, in any event warranted both rejecting petitioner's request to

delay the arbitration hearing and allowing it to proceed to

conclusion. No due process problem existed considering that

petitioner's retirement application would have mooted the

disciplinary proceeding in view of his imminent retirement on

May 27, 1995. The New York Court of Appeals has held in

similar circumstances in Evans v. Monaghan, 306 N.Y. 312,

322-323 (1954), that:

None of the petitioners was willing to postpone the

effective date of his retirement. It was proper to conduct

the trial with such expedition as was necessary in order to

prevent their pensions from taking effect in the event that

they were found guilty of these charges.

In addition, adequate state remedies, such as the special

proceeding authorized by New York CPLR Article 75, were

available and fully utilized by petitioner, as discussed above.

Thus, the existence of such an adequate post deprivation remedy

fully satisfies due process requirements, Alexander v. Cortes,

140 F.3d 406, 411 (2d Cir. 1998) (citing Hudson v. Palmer, 468

U.S. 517 [1984)]).

Petitioner fundamentally errs regarding the transcription issue

in failing to distinguish between hearings pursuant to New York

Civil Service Law, Section 75, subdivisions 2 and 3, mandating

a transcript, and arbitration hearings without a transcript

pursuant to a collective bargaining agreement's disciplinary

procedures adopted, as here, in lieu of New York Civil Service

Law, Section 75. (A27). New York case law authorizes such

17

alternative disciplinary procedures to modify, supplement or

replace statutory disciplinary procedures otherwise applicable to

public employees, Antinore v. State of New York, 49 A.D.2d 6,

8 (4th Dept. 1975), aff'd, 40 N.Y.2d 921 (1976), Auburn Police

Local_195, Council 82, AFSCME, AFL-CIO v. Helsby, 62

A.D.2d 12 (3rd Dept. 1978), aff'd, 46 N.Y.2d 1034 (1979); Dye

v. New York City Transit Authority, 88 A.D.2d 899 (2d Dept.

1982), aff'd, 57 N.Y.2d 917 (1982).

Consequently, no constitutional due process violation exists

for conducting arbitration proceedings without a transcript.

Indeed, Justice Hutcherson's decision in Kings County Supreme

Court correctly cited New York appellate case law regarding the

conducting of an arbitration hearing including the transcription

issue:

Granting or refusing an adjournment lies within the

discretion of the arbitrator Reele_v. B. Healy NY

Corporation, 54 AD2d 1039, and petitioner has failed to

demonstrate that denial of the adjournment amounted to

misconduct. Moreover, in this instance where the CBA

provides that ''No transcript of arbitration hearing shall be

required", it was within the arbitrator's discretion not to

allow stenographic transcription of the hearing. See,

Rhinestone _v. New York City Transit Authority, 142

AD2d 562; Reele v. B. Healy NY Corporation, supra.

(A160-A161).

Petitioner similarly presents a meritless substantive due

process claim. Such a claim results only when a government

employer abuses a uniquely governmental power. Hence, the

18

Second Circuit decision in McClary v. O'Hare, 786 F.2d 83, 89

(2d Cir. 1986) noted that:

... the substantive * 2r->onent of the Due Process Clause

does not provide remedy to a public employee that

would not be avaii«'* to a private employee subject to

identical conduct by his employer.

"The substantive component of the due process clause protects

citizens only from abuses of governmental authority..." Costello

v. Town of Fairfield, 811 F2d 782, 787 (2d Cir. 1987) (Van

Graafeiland, concurring).

Here, petitioner's disciplinary termination failed to constitute

a uniquely governmental power.

The language and ruling in Sussman v. New York City Health

and Hospitals Corp., 1997 WL 33496 *12 (S.D.N.Y. 1997),

which cites the above cases, thus fully applies in this case:

"Because defendants did not wield any authority or take any

action against plaintiff that was uniquely governmental in nature,

but rather took actions that any employer could take, [plaintiff's]

claim for violation of substantive due process rights is

dismissed."

19

CONCLUSION

The petition for a writ of certiorari should be denied.

Dated: Brooklyn, New York

November 5, 1999

Respectfully submitted,

MARTIN B. SCHNABEL

General Counsel and Counsel of Record

New York City Transit Authority

Attorney for Respondents

130 Livingston Street

Brooklyn, New York 11201

Phone: (718) 694-5719

Fax: (718) 694-4020/5727/5728

KENNETH HOWARD SCHIFFRIN (KHS 2188)

Of Counsel

20

Ba pare Oe ee

ii 1 ie eS a ad a

APPENDIX A

Memorandum Decision of the Supreme Court

of the State of New York, County of Kings

(Hutcherson, J.) dated May 23, 1996

SUPREME COURT: KINGS COUNTY

In the Matter of the Application of TRIAL TERM,

LEONARD JAWOROWSKI, PART 25

Petitioner(s), By: Hutcherson, J.

vs. Index No.

27172/95

NEW YORK CITY TRANSIT AUTHORITY,

CARMEN SUARDY, as Vice President of

labor Relations and ALAN F. KIEPPER,

President of the New York City Transit

Authority,

Respondent(s).

In this Article 75 proceeding petitioner moves for a

judgment pursuant to CPLR section 7511 vacating and setting

aside the arbitration award dated May 22, 1995.

Respondent counterclaims pursuant to CPLR §7511[e] for

an Order confirming the May 22, 1995 arbitration award.

Petitioner was appointed as a Maintainer’s Helper June 8,

1970, with the New York City Transit Authority. On April 28,

1995, he was suspended without pay pending termination due

to allegations that he falsified his arrival sheet and

misappropriated Transit Authority property.

Al

The parties proceeded through the disciplinary action

pursuant to the Transit Authority’s Collective Bargaining

Agreement (hereinafter “CBA”) with the petitioner’s union the

Transport Workers Union, Local 100 (hereinafter “TWU”).

The petitioner grieved the disciplinary action and

concurrently filed for retirement with the New York City

Employees Retirement System effective May 27, 1995.

The charges and dismissal penalty were sustained through

the internal step hearings.

The petitioner subsequently commenced an Article 78

proceeding on Tuesday, May 16, 1995, in order to appeal the

recommended findings and penalty of termination. Petitioner

sought and obtained a stay of the Tripartite Arbitration Board

hearing scheduled for May 18, 1995.

Respondent appealed the Show Cause Order the following

day, May 17, 1995 and notified opposing counsel by faxed

letter that the appeal restrained the stay and allowed the

arbitrator to proceed on May 18, 1995. Respondent served a

Notice of Intention to seek leave to appeal.

In response, petitioner moved for a stay in the Appellate

Division, Second Department, but that portion of the Order to

Show Cause which sought to rescind the stay which restrained

the stay of the May 15, 1995 arbitration proceeding was

struck. The Order to Show Cause which sought to vacate the

automatic stay obtained by respondent-appellant by virtue of

their appeal from the Order of May 16, 1995, was made

returnable on May 25, 1995.

The parties appeared on May 18, 1995 for the arbitration at

which time the arbitrator allowed the arbitration hearing to

proceed despite petitioner’s representations that a stay was in

A2

effect. The arbitrator also denied petitioner’s application to

transcribe the proceedings.

The Tripartite Arbitration Board completed petitioner’s

hearing on May 18, 1995 and thereafter issued an Interim

Award and then Final Award, both dated May 22, 1995,

which sustained by majority vote the decision to suspend and

terminate the petitioner. Petitioner had been scheduled to retire

on May 27, 1995.

Petitioner brings this petition to vacate and set aside the

award upon the grounds of:

1. Absence of Authority to arbitrate as per the mandate of

the Kings County Supreme Court issued prior to the

arbitration;

2. Absence of stenographic record to review decision, in

violation of petitioner’s Civil Service due process rights

guaranteed under State and Federal Constitutions, section 75

of the New York State Civil Service Law and under New

York case law, even though petitioner appeared at the

arbitration with a court reporter at his own expense; and

3. Partiality of the arbitrator.

After oral argument and due deliberation and consideration

and based upon the foregoing papers, petitioner’s application

to vacate and to set aside the award of the arbitrator is denied

and respondent’s counterclaim to confirm the award is granted

for the reasons stated below.

An arbitrator’s award will not be set aside unless it is

violative of a strong public policy, is totally irrational, or

exceeds the arbitrator’s power CPLR 7511[b] Matter of Town

of Callicoor [Civil Serv Employees Assn], 70 NY2d 907;

A3

Matter of Mohiuddin v. Khan, 197 AD2d 578; Matter of

Akers v. New York City Transit Auth, 172 AD2d 749, 751.

Petitioner’s allegation that the arbitrator was obligated to

adjourn the arbitration pending the court’s determination and

the request for a stay is without merit. Granting or refusing an

adjournment lies within the discretion of the arbitrator Reele v.

B. Healy NY Corporation, 54 AD2d 1039, and petitioner has

failed to demonstrate that denial of the adjournment amounted

to misconduct. Moreover, in this instance where the CBA

provides that “No transcript of arbitration hearing shall be

required”, it was within the arbitrator’s discretion not to allow

stenographic transcription of the hearing. See, Rhinestone v.

New York City Transit Authority, 142 AD2d 562; Reele v. B.

Healy NY Corporation, supra.

Petitioner also challenges the award based upon the alleged

partiality and bias of the impartial arbitrator. Petitioner alleges

that the impartial arbitrator was at one time employed by the

Metropolitan Transportation Authority and the Long Island

Railroad. The respondent asserts that in 1989, the impartial

arbitrator was an independent contractor serving as a Hearing

Referee to hear disciplinary cases pursuant to New York Civil

Service Law, section 75 involving the Transit Authority and

non-TWU represented employees.

It is asserted that he was selected to hear petitioner’s

arbitration pursuant to the CBA which provides for such

selection on a rotating basis from a pane! of mutually agreed

chairpersons.

Partiality may be shown by actual bias or the appearance

of bias from which a conflict of interest may be inferred. . .

Generally, before entering upon their duties, arbitrators should

disclose any relationship direct or indirect that they have with

any party to the arbitration, and disclose all facts known to

A4

them which might indicate any interest or create a presumption

of bias. . .while this rule does not require an arbitrator to

disclose insignificant conflicts with the parties before him. . .

it does require that any substantial relationship be revealed. . .

[citations omitted] City School District of Oswego v. Oswego

Classroom Teachers’ Association, 100 AD2d 13. If the parties

So agree, the relationship of an arbitrator to the party selecting

him or to the matters in dispute will not disqualify him See,

Siegel v. Lewis, 40 NY2d 487, 690. Here, the impartial

arbitrator was agreed upon by both the union and the NYCTA.

Moreover, the arbitrator’s past conduct with the respondent is

insufficient to support a finding of bias or partiality.

Finally, petitioner asks that the award be vacated because

the sanction of termination is too harsh. However, where the

parties have agreed to arbitration, a Court may not usurp the

arbitrator’s function by imposing its concept of a just and

equitable result Matter of Board of Education at the Dover

Union Free School District v. Dover Wingdale Teachers’

Association, 95 AD2d 497.

Here, it cannot be held that the award was irrational,

violative of public policy or in excess of the arbitrator’s

powers.

Accordingly, petitioner’s application to vacate the

arbitration award is denied and respondent’s cross-motion to

confirm the award is granted.

This constitutes the Decision and Order of the Court.

ENTER

James W. Hutcherson, J.S.C.

APPENDIX B

Order (Gershon, J.) of the United States District

Court, Eastern District of New York

Dated September 16, 1998

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

LEONARD JAWOROWSKI,

Plaintiff, ORDER

96 CV 5142(NG)

-against-

NEW YORK CITY TRANSIT AUTHORITY,

ALAN F. KIEPPER, as former Presdent of

New York City Transit Authority, and

LAWRENCE REUTER, as President of

New York City Transit Authority,

Defendants.

GERSHON, United States District Judge:

Plaintiff Leonard Jaworowski brings this action pursuant

to 42 U.S.C. § 1983, alleging violations of his rights to due

process and equal protection of the laws with regard to a May

18, 1995 arbitration hearing and May 22, 1995 arbitration

award that upheld his termination from the New York City

Transit Authority (“Transit Authority”). Defendants, Transit

Authority, Alan F. Kiepper, as former President of the Transit

Authority and Lawrence Reuter, as present President of the

Transit Authority, move to dismiss the complaint pursuant to

Rule 56 of the Federal Rules of Civil Procedure on the

grounds that plaintiff’s previous action pursuant to New York

A6

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SRAM BAAN abi Oe si90

Aa aT als Deck Rd ARRAN Mie ood ION lke 0a

Beecham wy

Civil Practice Law and Rules (“CPLR”) Article 75 bars this

action, and that the individual defendants, Kiepper and Reuter,

are entitled to qualified immunity.

BACKGROUND

The following facts are undisputed. Plaintiff had worked

for the Transit Authority since June 8, 1970, most recently as

a “Structure Maintainer” for the Infrastructure Division of the

Subways Department. On April 28, 1997, the Transit

Authority notified plaintiff of his Suspension without pay

pending termination because of allegations that he falsified his

arrival time record on April 20, 1995 and that he had

unauthorized possession and control of a Transit Authority

cement mixer as well as other Transit Authority property such

as an impact wrench and a “demo hammer.” Plaintiff appealed

this disciplinary action pursuant to the collective bargaining

agreement between plaintiff’s union and the Transit Authority.

That agreement provided plaintiff a multi-step administrative

appeal process. Plaintiff also filed for retirement with the New

York City Employees Retirement system, to be effective May

27, 1995.

The Step 1 meeting resulted in a May 1, 1995 decision

Sustaining the disciplinary charges and penalty of suspension

and termination. Plaintiff appealed this decision, which was

Sustained at the Step 2 meeting. On plaintiff's further appeal, a

hearing before the Tripartite Arbitration Board, the last step in

the administrative process, was scheduled for May 18, 1995.

Two days before the scheduled hearing, _ plaintiff

commenced a proceeding pursuant to CPLR Article 78 seeking

to appeai the Step 2 decision and, in the interim, stay the final

arbitration hearing of the Tripartite Arbitration Board. On May

1 By agreement, there has been no discovery in this case.

A7

16, 1995, the Supreme Court, Kings County (Levine, J.),

signed plaintiff's Order to Show Cause and stayed the

arbitration hearing scheduled for May 18, 1995. The next day,

defendants filed a Notice of Appeal of that Order. Defendants,

in a May 17, 1995 letter, informed plaintiff that their Notice of

Appeal “stays the appealed order. . and thus any effect which

attached to Justice Levine’s order has now been stayed.” The

letter continued:

Consequently, the Transit Authority will proceed at

tomorrow’s scheduled Tripartite Arbitration Board

hearing regarding Mr. Jaworowski’s disciplinary

charges. Mr. Jaworowski and his representative(s)

are expected to appear, at the arbitration hearing. . .

The Transit Authority will proceed even in Mr.

Jaworowski’s absence, and if he does not appear

then the charges will be sustained and the appealed

dismissal penalty implemented pursuant to the

collective bargaining agreement.

On the: moming of May 18, 1995, the date of the

scheduled arbitration hearing, the parties appeared at the

Appellate Division, Second Department, in order to resolve the

issue of whether defendants’ Notice of Appeal stayed the

effect of the May 16, 1995 Order which stayed the arbitration

hearing scheduled for later that day. Defendants served a

handwritten Notice of Intention to Appeal the May 16, 1995

Order, and plaintiff filed another proposed Order to Show

Cause with the Appellate Division, seeking again to stay the

May 18, 1995 arbitration hearing. Justice Thomas P. Sullivan

of the Appellate Division, Second Department, signed the

Order to Show Cause “why an order should not be made

vacating the automatic stay obtained by

by virtue of their appeal from the order of May 16, 1995” and

expressly denied plaintiff's request to the Appellate Division

A8

a a

for a stay of the May 18, 1995 Tripartite Arbitration Board

hearing.

The Tripartite Arbitration Board hearing proceeded later

that day at 2:00 p.m. Plaintiff, appearing with counsel,

presented the Board with the May 16, 1995 Order of Justice

Levine and requested an adjournment of the arbitration hearing

until the May 19, 1995 return date of that Order for the

purpose of determining whether a stay of the proceeding

existed. The request for an adjournment was denied. Plaintiff

also requested that a stenographer, whom he had already

procured at his own expense and was present, be allowed to

transcribe the proceedings. This request was also denied.

The hearing was then held. Plaintiff, represented by

counsel, cross-examined witnesses of the Transit Authority

and presented witnesses of his own. On May 22, 1995, the

Tripartite Arbitration Board issued an Interim Award and then

a Final Award, which sustained the decision to suspend and

terminate plaintiff. The Board’s opinion concluded that “the

un-rebutted and uncontradicted evidence establishes the

charges by a fair preponderance of the evidence.”

Consequently, the Transit Authority terminated plaintiff’s

employment, effective May 22, 1995.

Plaintiff subsequently withdrew both his Article 78

proceeding and his Appellate Division application for an Order

to Show Cause regarding the stay issue. Instead, he

commenced a proceeding pursuant to CPLR Article 75 in

Supreme Court, Kings County, against defendant Transit

Authority, Kiepper and Carmen Suardy, then Vice President,

Labor Relations for the Transit Authority, seeking to vacate

and set aside the arbitration award on four grounds: (1) the

absence of authority to arbitrate because of the May 16, 1995

Order of Justice Levine staying the hearing; (2) the absence of

Stenographic record to review the decision; (3) the arbitrator

A9

was not impartial; and (4) the penalty was too harsh. Plaintiff

contended that the arbitrator’s actions in conducting the

arbitration hearing and barring the stenographer from the

hearing violated his due process rights. On May 23, 1996, the

Supreme Court, Kings. County (Hutcherson, J.), issued an

Order denying plaintiff's Article 75 application to vacate the

award and granting defendants’ cross-motion to confirm the

arbitration award. With regard to plaintiff’s first contention,

Justice Hutcherson ruled, in relevant part: di

Petitioner’s allegation that the arbitrator was

obligated to adjou.a the arbitration pending the

court’s determination and the request for a stay is

without merit. Granting or refusing an adjournment

lies within the discretion of the arbitrator Reele v.

B. Healy NY Corporation, 54 A.D.2d 1039, and

petitioner has failed to demonstrate that denial of

the adjournment amounted to misconduct.

With regard to his second contention, the court ruled that:

where the [collective bargaining agreement]

provides that “No transcript of arbitration hearing

shall be required,” it was within the arbitrator’s

discretion not to allow stenographic transcription of

the hearing. See Rhinestone v. New York City

Transit Authority, 142 A.D.2d 562; Reele v. B.

Healy NY Corporation, supra.

The court found no evidence of the partiality of the arbitrator

and declined to find the penalty too harsh, noting that “where

the parties have agreed to arbitration, a Court may not usurp

the arbitrator’s function by imposing its concepts of a just and

equitable result.” The court therefore concluded that “it cannot

be held that the award was irrational, violative of public policy

or in excess of the arbitrator’s powers.”

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Plaintiff did not appeal this decision. Instead, he initiated

the present Section 1983 action in this court on October 21,

1996, claiming that his due process rights were violated

because: (1) the arbitration hearing was held without

determining whether the stay issued by Justice Levine in the

May 16, 1995 Order was valid; and (2) he was precluded from

preserving a stenographic record of the arbitration

proceeding.” Plaintiff seeks to void the arbitration decision on

these grounds and require the Transit Authority to permit him

to retire from the Transit Authority with full retirement

benefits.

DISCUSSION

Qualified Immunity

Preliminarily, defendants contend that summary judgment

should be granted for the individual defendants, Kiepper and

Reuter, on the basis of qualified immunity. On oral argument,

plaintiff withdrew his claims against Kiepper and Reuter.

Issue Preclusion

“The doctrine of collateral estoppel promotes important

goals: it allows a party only one Opportunity to litigate an issue

thereby conserving the time and resources of the parties and

the court; promotes the finality of judgments; preserves the

integrity of the judicial system by eliminating inconsistent

results; and ensures that a party not be able to relitigate issues

already decided against it in prior litigation.” Johnson v.

2 In his complaint, plaintiff also alleges that “Defendants have

violated his right to equal protection of laws in that they have

treated him differently from other similarly situated New York

City Transit Authority employees in depriving him of his

constitutional right to procedural and substantive due process of

laws.” Plaintiff has stated no facts to distinguish this claim from

his due process claims.

Ail

Sms Ci eee

Watkins, 101 F.3d 792 (2d Cir. 1996). A federal court

examining the preclusive effect of a state court judgment must

look to the full faith and credit statute, 28 U.S.C. § 1738

(1994):

Such Acts, records and judicial proceedings. . .

shall have the same full faith and credit in every

court within the United States. . .as they have by

law or usage in the courts of such State, Territory -

or Possession from which they are taken.

Thus, a federal court must give to a state court judgment the

same preclusive effect as would be given that judgment under

the law of the state in which the judgment was rendered.

Giakoumelos V. Coughlin, 88 F.3d 56, 59 (2d Cir. 1996);

Migra v. Warren City School Dist. Bd. of Educ., 465 U.S.

75, 81 (1984). New York issue preclusion law therefore

controls the determination of whether plaintiff's Article 75

proceeding has a preclusive effect on the issues litigated in the

present action.

“Under New York law, the doctrine of collateral estoppel,

or issue preclusion, applies when a litigant in a prior

proceeding asserts an issue of fact or law in a subsequent

proceeding and (1) the issue ‘has necessarily been decided in

the prior action and is decisive of the present action,’ and (2)

there has been a ‘full and fair opportunity to contest the

decision now said to be controlling.” Giakoumelos v.

Coughlin, 88 F.3d 56, 58 (2d Cir. 1996) (citing Schwartz v.

Public Administrator, 24 N.Y.2d 65, 71 (1969)); Hickerson

v. City of New York, 146 F.3d 99, 104 (2d Cir. 1998). “The

party asserting issue preclusion bears the burden of showing

that the identical issue was previously decided, while the party

against whom the doctrine is asserted bears the burden ‘of

showing the absence of a full and fair opportunity to litigate in

Ai2

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the prior proceeding.” Colon v. Coughlin, 58 F.3d 865, 869

(2d Cir. 1995) (citations omitted).

From a comparison of the verified petition filed in the

Article 75 proceeding and the complaint in the present Section

1983 action, it is clear that the same issues plaintiff raises here

as due process claims were previously raised in identical

constitutional terms. Plaintiff does not dispute that he

previously raised the same constitutional issues in the Article

75 proceeding and that the Supreme Court, Kings County,

decided those issues against him. Nor does he contend that the

Supreme Court in the Article 75 proceeding could not hear the

constitutional claims. Instead, he contends, in essence, that he

did not have a full and fair opportunity to litigate the issues in

the Article 75 proceeding because of the limited Judicial review

available in Article 75 proceedings.

Pursuant to CPLR Article 75, the only grounds on which

an arbitration award can be vacated at the “behest of a party

who participated in the arbitration. . .[are] that the rights of

that party were prejudiced by corruption, fraud or misconduct

in procuring the award, partiality of an arbitrator, that the

arbitrator exceeded his power or failed to make a final and

definite award, or a procedural failure that was not waived.”

Silverman v. Benmor Coats, Inc., 61 N.Y.2d 299, 307

(1984). The grounds for vacating an arbitration award

pursuant to Article 75 include a claim that the plaintiff’s due

process rights were violated. Mount St. Mary’ s Hospital of

Niagara Falls v. Catherwood, 26 N.Y.2d 493 (1970).

Although review under Article 75 of the legal and factual

substance of an arbitrator’s decision is limited, plaintiff cannot

demonstrate the lack of a full and fair opportunity to litigate his

claims that the arbitrator engaged in misconduct rising to the

level of a constitutional violation when he refused to adjourn

the arbitration hearing and refused to allow plaintiff to record

it. Such legal claims are clearly available in Article 75

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proceedings challenging either compulsory or consensual

arbitrations. Id.; see also id. at 513 (Fuld, J., concurring)

(New York “courts now have the right to review. . .whether

the [arbitrator] violated basic due process requirements in the

conduct of the proceedings.”). Since the identical due process

issues plaintiff raises in the present action were previously

raised and decided by the Supreme Court in the Article 75

proceeding, plaintiff is precluded from bringing those claims

here.

CONCLUSION

The claims against the individual defendants, Kiepper and

Reuter, are withdrawn. The Transit Authority’s motion for

summary judgment is granted. The Clerk of Court is directed

to enter judgment dismissing the complaint.

SO ORDERED.

Nina Gershon

United States

District Judge

Dated: Brooklyn, New York

September 16, 1998

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eee secone erate fl

APPENDIX C

Summary Order of the United States Court of

Appeals for the Second Circuit Entered June 4, 1999

At a stated term of the United States Court of Appeals for

the Second Circuit, held at the United States Courthouse,

Foley Square, in the City of New York, on the 4" day of

June, one thousand nine hundred ninety-nine.

PRESENT:

HON. ELLSWORTH VAN GRAAFEILAND,

HON. GUIDO CALABRESI,

HON. CHESTER J. STRAUB,

Circuit Judges.

LEONARD JAWOROWSKI,

Plaintiff-Appellant,

v. SUMMARY

ORDER

NEW YORK CITY TRANSIT AUTHORITY,

ALAN F. KIEPPER, as former President of

New York City Transit Authority, and

LAWRENCE G. REUTER, as President of

the New York City Transit Authority,

Defendants-Appellees.

For Appellant: ANDREW HIRSCHHORN, Rosedale, N.Y.

For Appellee: KENNETH HOWARD SCHIFFRIN, of

counsel, for Martin B. Schnabel, Acting

General Counsel, New York City Transit

Authority, Brooklyn, N.Y.

AlS

Appeal from the United States District Court for the

Eastern District of New York (Nina Gershon, Judge).

UPON DUE CONSIDERATION, it is ORDERED,

ADJUDGED, AND DECREED that the judgment of the

district court be and hereby is AFFIRMED.

Plaintiff-Appellant Leonard Jaworowski appeals from a

judgment of the United States District Court for the Eastern

District of New York (Nina Gershon, Judge) granting

summary judgment to Jaworowski’s former employer,

defendant-appellee New York’ Transit Authority.!

Jaworowski’s suit, brought pursuant to 42 U.S.C. § 1983,

alleges various constitutional infirmities in an arbitration

proceeding arising out of disciplinary charges brought against

him by the Transit Authority. The district court ruled that

Jaworowski was estopped from bringing his claims, which he

had previously litigated in an action in New York state court.

We affirm.

“[A] federal court must give to a state court judgment the

same preclusive effect as would be given that judgment under

the law of the State in which the judgment was rendered.”

Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75,

81 (1984). “New York law provides that an issue may not be

relitigated if the identical issue was necessarily decided in a

previous proceeding, provided that the party against whom

collateral estoppel is being asserted had a full and fair

opportunity to litigate the issue in the prior action.” Hickerson

1 Jaworowski withdrew his claims against individual defendants

Alan F. Kiepper, a former President of New York City Transit

Authority, and Lawrence Reuter, the current President of New

York City Transit Authority, while this case was before the

district court.

Al6

v. City of New York, 146 F.3d 99, 104 (2d Cir. 1998). On

appeal, Jaworowski argues that collateral estoppel should not

bar his current suit because the issues he now raises are not

identical to the claims he asserted in the state court proceeding.

Although Jaworowski concedes that the claims he now

raises were previously advanced in his state court suit, he

contends that the fact that his state court action asserted

additional claims means that the issues raised in the two

proceedings are not identical. This argument misperceives the

nature of the test described in Hickerson. The state court’s

confirmation of the arbitration award necessarily rejected all of

the challenges that Jaworowski had made to the award. And

Jaworowski admits that his § 1983 suit does not assert any

claims that were not made—and therefore rejected—in the

State court. That Jaworowski made other allegations of error

that also were not accepted by the state court does not negate

the fact that Jaworowski’s current suit asserts only claims that

the state court already rejected.

Jaworowski also contends that the claims he now asserts

in his § 1983 complaint are not identical to those litigated in

State court because the standards of review of arbitrations

differ between New York state courts and federal courts.

Specifically, according to Jaworowski, to prevail in state court

he would have had to prove that the alleged due process

violations rendered the arbitration irrational, while in federal

court he need only show that the arbitration violated due

process. This argument mistakenly conflates two different

grounds for setting aside an arbitration under New York law.

Although it is true that one ground for vacating an arbitration

decision is to show that the award is “totally irrational,” see

Board of Educ. v. Dover-Wingdale Teachers’ Ass’n, 61

N.Y.2d 913, 915, 463 N.E.2d 32, 32, 474 N.Y.S.2d 716,

716 (1984), a court applying New York law will also vacate

an arbitration if it finds that the arbitration violated due

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process, see Beckman v. Greentree Securities, Inc., 87

N.Y.2d 566, 570, 663 N.E.2d 886, 888, 640 N.Y.S.2d 845,

847 (1996); Republique Francaise v. Cellosilk Mfg. Co., 309

N.Y.2d 269, 276, 128 N.E.2d 750, 753 (1955) (“The

arbitration award having been thus procured in violation. . .of

due process was null and void.”). Thus, contrary to

Jaworowski’s assertions, New York state courts do not

review constitutional challenges to arbitration decisions more

deferentially than do federal courts. We therefore need ‘not

decide whether, if such a disparity existed, it would provide

a basis for not applying collateral estoppel to bar

Jaworowski’s claims.

We conclude that Jaworowski is estopped from raising his

constitutional challenges to the arbitration, having already

litigated these same claims in New York state court. We have

carefully reviewed the record and examined each of

Jaworowski’s arguments. The district court’s order of

judgment is therefore AFFIRMED.

For the Court,

KAREN GREVE MILTON

Acting Clerk

By: Chandella G. Armstrong

Acting Operations Manager

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