In Patel v Macy’s Inc., No. 2022-05009, 2326, 650755/22, 2024 N.Y. Slip Op. 02782, 2024 WL 2279130 (N.Y.A.D. 1 Dept., May 21, 2024), the Appellate Division, First Department affirmed the lower court’s order denying the petitioner’s petition to vacate an arbitration award and granted respondents’ counterclaim to confirm the award.
This decision is instructive on how courts review arbitration awards in employment discrimination cases.
From the decision:
Petitioner failed to establish one of the narrow grounds for vacatur of an arbitration award under the Federal Arbitration Act (FAA) or that the arbitrator acted with “manifest disregard of the law” (Matter of Nexia Health Tech., Inc. v. Miratech, Inc., 176 A.D.3d 589, 590–591, 110 N.Y.S.3d 420 [1st Dept. 2019]).
Petitioner’s arguments to the effect that the arbitrator did not give sufficient weight to certain evidence do not support vacatur (Matter of Daesang Corp. v. NutraSweet Co., 167 A.D.3d 1, 20, 85 N.Y.S.3d 6 [1st Dept. 2018], lv denied 32 N.Y.3d 915, 2019 WL 690307 [2019]). The arbitrator analyzed the evidence submitted during the hearing in a detailed award and applied the proper standard in assessing petitioner’s claims of employment discrimination and retaliation under the New York City Human Rights Law (City HRL) (Administrative Code of City of N.Y. § 8–107[1], [7]), including its mandate to construe its protections as liberally as reasonably possible to accomplish its broad and remedial purposes (see Albunio v. City of New York, 16 N.Y.3d 472, 477–478, 922 N.Y.S.2d 244, 947 N.E.2d 135 [2011]). This analysis meets the requirement that there be at least “ ‘a barely colorable justification for the outcome reached’ ” (Matter of Daesang, 167 A.D.3d at 19, 85 N.Y.S.3d 6, quoting Wien & Malkin LLP v. Helmsley–Spear, Inc., 6 N.Y.3d 471, 479, 813 N.Y.S.2d 691, 846 N.E.2d 1201 [2006]).
Nor is vacatur warranted based on the arbitrator’s omission of the “cat’s paw” theory of discrimination from his discussion. Even if that theory were “clearly applicable, … [t]here is no explicit evidence in the record that … the arbitrator[ ] believed that [it] applied,” nor “any deliberateness or willfulness exhibited within the award that shows the arbitrator[’s] intent to flout the law” (Wien, 6 N.Y.3d at 484, 813 N.Y.S.2d 691, 846 N.E.2d 1201). In any event, the arbitrator found that petitioner’s immediate supervisor exhibited no discriminatory or retaliatory animus, which is consistent with his implicit rejection of petitioner’s cat’s paw theory premised on such animus (see Vasquez v. Empress Ambulance Serv., Inc., 835 F.3d 267, 272 [2d Cir.2016]).
Petitioner’s arguments as to his retaliation claim also fail to meet the high bar for vacatur.
To prevail on a City HRL retaliation claim, a claimant must show that he “opposed discrimination” but need not “say in so many words that [he] was a discrimination victim” to have engaged in protected activity (Albunio v. City of New York, 16 N.Y.3d at 479, 922 N.Y.S.2d 244, 947 N.E.2d 135). Although there was evidence from which the arbitrator could have concluded that petitioner intended to assert a protected right in an internal complaint, the arbitrator concluded that respondents “did not understand” petitioner’s complaints to be protected activity, and, even assuming this conclusion was erroneous, there is no evidence that the arbitrator deliberately “refused to apply” a legal principle “or ignored it altogether” (Wien, 6 N.Y.3d at 481, 813 N.Y.S.2d 691, 846 N.E.2d 1201). Moreover, the arbitrator found that respondents’ determination to terminate petitioner’s employment preceded his invocation of step 3 of the internal process. “[A]n arbitrator’s award should not be vacated for errors of law and fact committed by the arbitrator[,] and the courts should not assume the role of overseers to mold the award to conform to their sense of justice” (id. at 479–480, 813 N.Y.S.2d 691, 846 N.E.2d 1201).To the extent petitioner asserts that the arbitrator should have credited his testimony, rather than that of respondents’ witnesses, his “disagreements with the arbitrator’s credibility determinations … [do] not provide a sufficient basis for overturning the award” (Matter of Jackson v. Main St. Am. Group., 210 A.D.3d 501, 501, 176 N.Y.S.3d 487 [1st Dept. 2022]). The arbitrator also found that petitioner’s statement in his formal complaint that Stewart was “biased” against him did not qualify that document as “a complaint of discrimination on a protected class basis,” as it was otherwise a general “diatribe” against Stewart.
The court concluded that “[b]ecause the arbitrator based his conclusion on the full context of the complaint as well as on the in-house investigator’s ‘credible’ testimony, his determination had a ‘plausible basis’ in the record and therefore does not require vacatur.”