Court of Appeals
State ofNew York
SHENENDEHOW A CENTRAL SCHOOL DISTRlCT
BOARD OF EDUCATION,
Appellant,
-against-
CIVIL SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL 1000,
AFSCME, AFL-CIO, LOCAL 864 and CYNTHIA DIDOMENICANTONIO,
Respondents.
BRIEF ON BEHALF OF
AMICUS CURIAE
NEW YORK STATE UNITED TEACHERS
IN SUPPORT OF RESPONDENTS
Brief Submitted: November 19,2012
RlCHARD E. CASAGRANDE, ESQ.
Office & P.O. Address
800 Troy Schenectady Road
Latham, New York 12110-2455
Tel. No. (518) 213-6000
Fax No. (518) 213-6488
Saratoga County Index Number: 2010-2883
Appellate Division Docket No.: 512137
MATTHEW E. BERGERON, of Counsel
TABLE OF CONTENTS
TABLE OF CASES AND AUTHORITIES ............................. iii
PRELIMINARY STATEMENT ....................................... 1
ARGUMENT
POINT I
BECAUSE NEW YORK'S PUBLIC POLICY PREFERS
ARBITRATION AS A MEANS OF RESOLVING
DISPUTES UNDER PUBLIC EMPLOYMENT
COLLECTIVE BARGAINING AGREEMENTS,
COURTS DO NOT DISTURB ARBITRATION
A WARDS EXCEPT IN VERY LIMITED CIRCUMSTANCES.
NO SUCH CIRCUMSTANCES ARE PRESENT IN THIS CASE ....... 5
POINT II
THE ARBITRATOR'S AWARD DID NOT EXCEED
A LIMITATION ON HIS POWER NOR IS THE
AWARD TOTALLY IRRATIONAL .............................. 9
A. THE ARBITRATOR WAS EMPOWERED
BY THE COLLECTIVE BARGAINING
AGREEMENT TO RESOLVE THE
DISPUTE AND HE ANSWERED THE VERY
QUESTIONSPUTTOHIMBYTHEPARTIES .......... 9
-1
B. THE ARBITRATOR'S DETERMINATION
THAT THE PUBLIC EMPLOYMENT
COLLECTIVE BARGAINING AGREEMENT
AT ISSUE DOES NOT MANDATE THE SCHOOL
DISTRICT TO DISCHARGE A BARGAINING
UNIT MEMBER WHO TESTS POSITIVE FOR
MARIJUANA ON A RANDOM DRUG TEST
WAS NOT TOTALLY IRRATIONAL ................. 11
C. IT WAS NOT TOTALLY IRRATIONAL
FOR THE ARBITRATOR TO APPLY
A "JUST CAUSE" STANDARD IN
A DISCIPLINARY ARBITRATION BECAUSE
THAT STANDARD DRAWS ITS ESSENCE
FROM THE PARTIES' COLLECTIVE
BARGAINING AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . 15
POINT III
THE ARBITRATOR'S REINSTATEMENT OF
MS. DIDOMENICANTONIO DOES NOT VIOLATE
PUBLIC POLICY BECAUSE THERE IS NO PUBLIC
POLICY FOUNDED IN CONSTITUTIONAL, STATUTORY
OR COMMON LAW WHICH MANDATES THE
TERMINATION OF AN EMPLOYEE WHO HAS
USED MARIJUANA ......................................... 21
APPENDIX - UNPUBLISHED CASES
-11
TABLE OF CASES AND AUTHORITIES
Page(s)
CASES
Asset Protection & Security Services, LP v. SEI~ Local 200
United, 19 N.Y.3D 1009 ............................................. 9
Associated Teachers ofHuntington, Inc. v. Board ofEducation,
UFSD No.3, Town ofHuntington, 33 N.Y.2d 229,236 (1974) ............... 5
Board ofEducation, Bellmore-Merrick v. Bellmore-Merrick
United Secondary Teachers, Inc., 39 N.Y.2d 167, 171 (1976) ............... 5
Board ofEducation, UFSD No.3, Town ofHuntington,
33 N.Y.2d 229,236 (1974) ........................................... 5
Board ofEducation, Watertown City School District,
93 N.Y.2d 132,139-140 (1999) ....................................... 5
Bohlinger v. National Cash Register Co., 305 N.Y. 539 (1953) ....... 17,18,20
Cent. Square Teachers Ass 'n v. Board ofEduc. of
Cent. Square School Dist., 52 N.Y.2d 918,919 (1981) ................... 7,8
City School Dis!. ofthe City ofNew York v. MeGraham,
17 N.Y.3d 917,919 (2011) .................................... 22,23,28
Clear Channel Outdoor, Inc. v. International Unions ofPainters
and Allied Trades, 558 F.3d 670, 676 (7th Cir. 2009) ...................... 13
Day & Zimmerman/Basil Corp. v. IUOE, 76 F.3d 385 (9th Cir. 1995) ......... 16
-111
Page(s)
Hanover School District v. Hanover Education Association,
814 A.2d 292,295-297 (Commonwealth Ct. of Penn. 2003) ................. .
Haren v. Superior Dairy, Inc., et aI., 2004 WL 1879094 (Ohio App. 5 Dist.) .. 17
In re D. Children, 25 Mise.3d 1208 at *7 (N.Y. Co. Family Ct. 2009) ........ 27
International Brotherhood ofElectrical Workers v.
Niagara Mohawk Power Corporation, 143 F.3d 704,716 (2d Cir. 1998) ... 8,24
Local 333 v. N.Y.S. Dep'tofTransp., 35 A.D.3d211, 213 (1stDep't2006) .... 22
Matter ofGoldfinger v. Lisker, 68 N.Y. 2d 225, 231 (1986) ................. 6
Matter ofHennebeny v. ING Capital Advisors, LLC,
10 N.Y.3d 278, 284 (2008) ........................................... 6
Matter ofNew York City Tr. Auth. v. Transport Workers'
Union, LocallOO, AFL-CIO, 6 N.Y.3d 332,336 (2005) ............... 6,9, 19
Matter ofNew York State Correctional Officers &
Police Benevolent Ass 'n v. State ofNew York,
94 N.Y.2d 321, 326 (1999) ................................ 7,8,22,23,28
N Y. C. Transit Auth. v. Transit Workers ofAmerica,
LocallOO, 14 N.Y.3d 119,123 (2010) ......................... 6, 12,13,28
N ys. Office ofChildren and Family Services v. CSEA, et al.,
79 A.D.3d 1438, 1439 (3d Dep't 2010) ................................ 22
Rochester City School District v. Rochester Teachers Association,
41 N.Y.2d 578 (1977) ................................. 3,9, 10, 12, 14, 19
Ross v. Oxford Academy and Cent. Sch. Dist.,
187 A.D.2d 898 (3d Dep't 1992) ..................................... 29
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Page(s)
SFIC Properties, Inc. v. Machinists Lodge 94,103 F.3d 923 (9th Cir. 1996) ... 17
Smith v. Bd. ofEduc. ofOnteora Cent. Sch. Dist.,
221 A.D.2d 755 (3d Dep't 1995) ..................................... 29
Smith v. Bd. ofEduc. ofTaconic Hills Cent. Sch. Dist.,
235 A.D.2d 912 (3d Dep't 1997) ..................................... 29
Sprinzen v. Nomberg, 46 N.Y.2d 623, 629 (1979) ..................... 15,21
Town ofHaverstraw v. Rockland County PBA,
65 N.Y.2d 677,678 (1985) ........................................... 5
United Federation ofTeachers, Local 2, AFT, AFL-CIO v.
Board ofEduc. ofthe City School Dist. ofNew York,
1 N.Y.3d 72, 82-83 (2003) ........................................... 7
United Food and Commercial Workers International Gold Star
Sausage Co., 487 F.Supp. 596 (D. Colo. 1980) .......................... 16
United Paperworkers J Int'! Union, AFL-CIO v. Misco, Inc.,
484 U.S. 29,37 (1987) ......................................... 6, 7, 24
United Steelworkers ofAmerica v. Enterprise Wheel
and Car Corporation, 363 U.S. 593,598 (1960) ...................... 6,7,8
WR. Grace & Co. v. Local Union 759,461 U.S. 757, 766 (1983) ........... 22
Page(s)
STATUTES
-v
CPLR Article 75 ................................................... 1
CPLR §7501 ................................................. 5,9,14
OTHER
CPLR§7511 ...................................................... 2
Education Law §3020-a ............................................. 26
Education Law §3020-(2)(b) ......................................... 26
Penal Law §221.05 ................................................ 28
Penal Law §240AO ................................................ 28
Public Officers Law ................................................ 26
Public Officers Law §30(1)(e) ....................................... 26
Vehicle and Traffic Law §1192(4) .................................... 28
A.7620(2012) .................................................... 28
Drug Court Practitioner Fact Sheet, IV National Drug Court Institute No.2
(April, 2006) ..................................................... 27
http://www.ilr.comell.edu/directory/jag28/ ............................. 20
http://www.ilr.comell.edu/directory/jag28/vita.htm ....................... 20
S.5187(2012) .................................................... 28
-Vl
STATE OF NEW YORK
COURT OF APPEALS
SHENENDEHOW A CENTRAL SCHOOL DISTRlCT
BOARD OF EDUCATION,
Appellant,
-against-
CIVIL SERVICE EMPLOYEES ASSOCIATION, INC.,
LOCAL 1000, AFSCME, AFL-CIO, LOCAL 864
and CYNTHIA DIDOMENICANTONIO,
Respondents.
BRlEF ON BEHALF OF NEW YORK STATE UNITED TEACHERS
PRELIMINARY STATEMENT
New York State United Teachers' ("NYSUT") submits this original amicus
brief pursuant to Rule 500.23(a)(1)(i) accompanying its motion for amicus curiae
relief in Shenendehowa Central School District Board ofEducation v. CSEA and
Cynthia DiDomenicantonio, a CPLR Article 75 proceeding where the Appellate
Division, Third Department reversed the Saratoga County Supreme Court's vacatur
of an arbitration award. As amicus, NYSUT submits the Court should affirm the
Appellate Division's decision in favor of CSEA confirming the award.
-1
Pursuant to CPLR §7511, appellant Shenendehowa Central School District
(" Appellant" or "District") applied to vacate an arbitration award (" Award") resolving
a grievance filed by CSEA (the "Union") pursuant to the grievance arbitration
procedure in the applicable collective bargaining agreement. R. 42-43. The Union
filed the grievance on behalf ofbargaining unit member Cynthia DiDomenicantonio,
contesting the District's termination ofher employment as a school bus driver based
on the results of a random drug test returning a positive result for marijuana. ld. In
his award, although he found the positive test result valid, the arbitrator concluded
the District's termination ofMs. DiDomenicantonio's employment was inappropriate,
given her length of service and otherwise satisfactory work history. R. 56-69.
NYSUTrespectfully submits the appellate division correctly reversed the order
ofsupreme court finding, contrary to supreme court, that the arbitrator did not exceed
his authority and that his Award was not against public policy. R. 10-17. NYSUT
agrees with the appellate division decision, which held that the Award was not
against public policy and was rational, and thus that the arbitrator did not exceed his
powers. NYSUT further submits that appropriate judicial review is limited to the
arbitrator's Award, and not his or her analysis. The arbitrator here was not limited
by the contract in terms of what he could award and, indeed, what the appropriate
remedy should be was a precise question put before him. Thus, by reinstating Ms.
-2
DiDomenicantonio, the arbitrator did not exceed his authority. Notwithstanding that
vacatur analysis is limited to the Award only, NYSUT also submits that the arbitrator
did not exceed his authority by applying a "just cause" standard, nor was it against
public policy for him to apply that standard to order the District to reinstate Ms.
DiDomenicantonio as a school bus driver.
NYSUT has an interest in the outcome ofthis appeal and will direct the Court's
attention to law and arguments that may not be fully presented by the parties to the
appeal and thus escape the Court's consideration. NYSUT is the state's largest labor
organization, representing more than 600,000 in-service and retired public and private
sector employees, including school bus drivers. In NYSUT's view, the instant appeal
impacts fundamentally and crucially on the ability of unions and employers to
negotiate and administer collective bargaining agreements addressing employee
discipline.
Reversing the appellate division would cause a seIsmIC shift in the
longstanding law applicable to judicial review ofarbitration awards, to the detriment
ofworking men and women across the state. Specifically, the District tacitly asks the
Court to overrule 35 years of precedent embodied in Rochester City School District
v. Rochester Teachers Association, 41 N.Y.2d 578 (1977). In that case, this Court
held that arbitrators unmistakably have the power to determine whether an employer
-3
properly exercised discretion granted to it by a collective bargaining agreement to
take particular action, such as granting sabbatical leave or, as in this case, discharging
an employee who tested positive for marijuana in a required drug test. Not only does
the District seek to roll back those 35 years ofprecedent, the District would also have
the Court break with established precedent, including precedent from the United
States Supreme Court, and to judicially fashion a broad, sweeping rule declaring that
reinstating an employee who tests positive for marijuana as a result of a random test,
without proof of impairment, is against public policy.
NYSUT submits that the arbitrator in this matter acted well within his authority
when he applied a "just cause" standard to determine whether the District properly
exercised its discretion to discharge Ms. DiDomenicantonio. Moreover, the
arbitrator's Award's direction that the District reinstate Ms. DiDomenicantonio did
not violate public policy because there is no basis in constitutional, statutory, or
decisional law for such policy. Accordingly, NYSUT respectfully requests that its
motion for amicus curiae reliefbe granted, that the original amicus NYSUT proposed
briefbe accepted, and that the appellate division decision be affirmed, thus denying
the application to vacate the arbitration award and granting the counterclaim to
confirm the award.
-4
ARGUMENT
POINT I
BECAUSE NEW YORK'S PUBLIC POLICY PREFERS
ARBITRATION AS A MEANS OF RESOLVING
DISPUTES UNDER PUBLIC EMPLOYMENT
COLLECTIVE BARGAINING AGREEMENTS,
COURTS DO NOT DISTURB ARBITRATION AWARDS
EXCEPT IN VERY LIMITED CIRCUMSTANCES. NO
SUCH CIRCUMSTANCES ARE PRESENT IN THIS
CASE.
Pursuant to New York state public policy, arbitration is the preferred means for
resolving disputes under public employment collective bargaining agreements. Town
of Haverstraw v. Rockland County PBA, 65 N.Y.2d 677, 678 (1985); Board of
Education, Watertown City School District, 93 N.Y.2d 132, 139-140 (1999);
Associated Teachers ofHuntington, Inc. v. Board ofEducation, UFSD No.3, Town
ofHuntington, 33 N.Y.2d 229, 236 (1974). This important public policy favoring
arbitration is ret1ected in the state's decisional and statutory law, both mandating that
courts use judicial restraint when reviewing arbitration awards, protecting the
integrity of the arbitration process. Board of Education, Bellmore-Merrick v.
Bellmore-Merrick United Secondary Teachers, Inc., 39 N.Y.2d 167,171 (1976);
CPLR §7501. As public policy favors arbitration as the means of settling labor
disputes, "[ c]ourts are reluctant to disturb the decisions of arbitrators lest the value
-5
of this method of resolving controversies be undermined ... [p]recisely because
arbitration awards are subject to such judicial deference, it is imperative that the
integrity of the process, as opposed to the correctness of the individual decision, be
zealously safeguarded." Matter ofGoldfinger v. Lisker, 68 N.Y. 2d 225,231 (1986).
Today, under the clearly established precedentofthis Court, a court may vacate
an arbitrator's award on the ground that the arbitrator exceeded his or her authority
only when the award "violates a strong public policy, is irrational or clearly exceeds
a specifically enumerated limitation on the arbitrator's power." Matter ofHenneberry
v. ING Capital Advisors, LLC, 10 N.Y.3d 278, 284 (2008), quoting Matter ofNew
York City Tr. Auth. v. Transport Workers' Union, Local 100, AFL-CIO, 6 N.Y.3d
332,336 (2005); see also, NYC Transit Auth. v. Transit Workers ofAmerica, Local
100,14 N.Y.3d 119,123 (2010). Absent one of these serious violations, courts are
"obligated to give deference to the decision ofthe arbitrator." Henneberry, 10 N.Y.3d
at 284.
According to the U.S. Supreme Court, an arbitrator's interpretation cannot be
overturned for "[a] mere ambiguity in the opinion accompanying an award ... ," or
because the court believes "that the arbitrator misread the contract[,]" even if the
court feels that injustice has resulted. United Steelworkers ofAmerica v. Enterprise
Wheel and Car Corporation, 363 U.S. 593, 598 (1960); United Paperworkers' Int 'I
-6
Union, AFL-CIOv. }v1isco, Inc., 484 U.S. 29, 37 (1987). This Court applies much the
same rule. See, e.g., United Federation of Teachers, Local 2, AFT, AFL-CIO v.
Board ofEduc. ofthe City School Dist. ofNew York, 1 N.Y.3d 72, 82-83 (2003).
This policy ofjudicial deference is so powerful that a court is not permitted to
examine the merits ofan arbitration award, and cannot vacate an arbitrator's decision
"even in circumstances where an arbitrator makes errors oflaw or fact. . ," so long as
"the arbitrator is even arguably construing or applying the contract and acting within
the scope of his authority." Misco, 484 U.S. at 38; Matter of New York State
Correctional Officers & Police Benevolent Ass 'n v. State ofNew York, 94 N.Y.2d
321, 326 (1999). This is because in a collective bargaining agreement, "[it] is the
arbitrator's construction which was bargained for; and so far as the arbitrator's
decision concerns construction ofthe contract, the courts have no business overruling
him because their interpretation ofthe contract is different from his." Enterprise, 363
U.S. at 599; see United Federation of Teachers, supra, 1 N.Y. 3d at 83. Thus, in
reviewing an arbitrator's award, the "path ofanalysis, proofand persuasion by which
the arbitrator reached [a] conclusion is beyond judicial scrutiny." Cent. Square
Teachers Ass 'n v. Board ofEduc. ofCent. Square School Dist., 52 N.Y.2d 918, 919
(1981).
-7
Accordingly, the reviewing court should focus only on the award itself, not on
an arbitrator's factual findings or legal analysis. Such focus on the result is required
because the arbitrator's factual findings, interpretation of the collective bargaining
agreement and judgment concerning remedies are binding upon the court,
notwithstanding circumstances where an arbitrator makes errors of fact or law. See,
New York State Correctional Officers and PBA, 94 N.Y.2d at 326, (emphasis in
original); see also, Central Square Teachers Association, 52 N.Y.2d at 919. Indeed,
judicial second-guessing an arbitrator's analysis will only discourage such analysis,
which is not binding upon the parties but may be instructive to them. Enterprise
Wheel and Car Corporation, 363 U.S. at 597-598; and International Brotherhood of
Electrical Workers v. Niagara Mohawk Power Corporation, 143 F.3d 704, 716 (2d
Cir. 1998).
The appellate division, applying these legal principles and citing this Court's
precedents, properly reversed the supreme court, which had improperly vacated the
arbitration award at issue.
-8
POINT II
THE ARBITRATOR'S AWARD DID NOT EXCEED A
LIMITATION ON HIS POWER NOR IS THE AWARD
TOTALL Y IRRATIONAL
A. THE ARBITRATOR WAS EMPOWERED BY THE COLLECTIVE
BARGAINING AGREEMENT TO RESOLVE THE DISPUTE AND
HE ANSWERED THE VERY QUESTIONS PUT TO HIM BY THE
PARTIES.
As discussed above, the law in this state is clear. In reviewing an arbitration
award, a court may not pass upon the merits ofthe dispute and must focus only on the
award rendered. CPLR § 7501. It may, however, vacate an award ifthe arbitrator has
exceeded his contractual authority or rendered a completely irrational award. New
York City Transit Authority, 6 N.Y.3d at 336. Indeed, this Court has recognized that
irrationality and excess ofauthority may be different ways of saying the same thing.
Rochester City School District v. Rochester Teachers Association, 41 N.Y.2d 578,
582 (1977).
Here, the District claims that the arbitrator has exceeded his power. However,
showing such is a "heavy burden" and where the arbitrator's award answers the very
question put to him or her by the parties, "[t]he courts' power to intervene is even
more restricted." Rochester CSD, 41 N.Y.2d at 580; Asset Protection & Security
Services, LP v. SEIU, Local 200 United, 19 N.Y.3d 1009. As put by this Court in
Rochester CSD, a party "may not argue that the arbitrator lacked the power to resolve
-9
Notwithstanding the axiom that a court is limited to reviewing only an
arbitrator's award, NYSUT respectfully submits as amicus that the arbitrator's path
of analysis was also not totally irrational.
B. THE ARBITRATOR'S DETERMINATION THAT THE PUBLIC
EMPLOYMENT COLLECTIVE BARGAINING AGREEMENT AT
ISSUE DOES NOT MANDATE THE SCHOOL DISTRICT TO
DISCHARGE A BARGAINING UNIT MEMBER WHO TESTS
POSITIVE FOR MARImANA ON A RANDOM DRUG TEST WAS
NOT TOTALLY IRRATIONAL.
In the case at bar, the arbitrator found that although the collective bargaining
agreement gave the District the "option" to discharge Ms. DiDomenicantonio, it did
not mandate such discharge. He found that the District improperly exercised its
option to discharge Ms. DiDomenicantonio without at all considering the option of
a lesser penalty. Here, the District urges that the question before the Court is whether
that finding was based on rational interpretation of the agreement. NYSlJT submits
it was.
The District would have the Court find, in essence, as the appellate division
dissent did, that whenever a collective bargaining agreement gives such option to an
employer the arbitrator is powerless to review the employer's choice of one option
over another. According to this Court, however, the issue of whether an employer
exercised its discretion appropriately is for an arbitrator to decide, a decision not
-11
the question submitted." Id. at 583.
The threshold question is whether the parties' contract empowered the
arbitrator to resolve the dispute over Ms. DiDomenicantonio' s termination. Itplainly
did. Article IV, Section 47(C)(4) sets forth certain discipline which "may" be
imposed by the District, which here was termination. R. 94. Article IV, Section
47(C)(6)(c), in tum, grants the Union the right to "prosecute [a] grievance through
Step 4 ofthe Grievance Procedure." R.95. Finally, Article VI, Section 67 sets forth
that a grievance culminates in an arbitrator's decision which is "binding upon the
parties." R. 104. Thus, the dispute was properly before the arbitrator.
Also, the arbitrator in this case cannot be said to have exceeded his authority
when he answered the agreed-upon questions put before him by the parties, namely:
"Did the District Violate [sic] Article IV of the Agreement when it terminated
Grievant effective November 10, 2009? Ifso, what shall the remedy be?" R.59. In
his Award, the arbitrator expressly answered the first question in the affirmative and
thereafter outlines the appropriate remedy. Thus, it stretches credulity that the
District maintains that the arbitrator exceeded his authority by answering the very
question put to him. See, Rochester CSD, 41 N.Y.2d at 583 (a party "may not argue
that the arbitrator lacked the power to resolve the question submitted").
-10
subject to a court's de novo review.
For example, in Rochester City School District v. Rochester Teachers
Association, this Court considered whether to vacate an arbitration award where an
arbitrator ruled that the employer improperly exercised its discretion when it denied
all sabbatical leave requested in a school year, based on contractual language stating
that regularly appointed teachers serving for five years "may upon the
recommendation of the superintendent and with approval ofthe board" be granted a
sabbatical leave. Ruling that the award should not be vacated, basing its ruling on the
arbitrator's interpretation of the word "may" in the agreement, this Court found that
the employer "chose to negotiate the point and agreed to exercise their discretion in
a certain manner, or so the arbitrator could find." 41 N.Y.2d at 584. Based on this
principle, as well as the axiom that it is not the courts' job to "set aside an award
because they feel that the arbitrator's interpretation disregards the apparent, or even
the plain, meaning of the words or resulted from a misapplication of settled legal
principles," this Court found the arbitrator's award to be rational and not in excess
of his powers. ld. at 582.
Also instructive is N. YC Transit Auth. v. Transit Workers ofAmerica, Local
100,14 N.Y.3d 119,122-123 (2010). In that case, the contract contained language
stating that once an arbitrator detennined that an employee had committed an assault,
-12
then the employer's proposed discipline should stand unless there is evidence that
it is "clearly excessive." When the arbitrator there found that an assault had occurred,
but that termination was excessive, the employer moved to vacate. This Court
ultimately concluded that it was the arbitrator's very job to determine whether the
employer had abused its discretion by ignoring the "clearly excessive" exception. Id.
at 124-125.
Similarly, in Clear Channel Outdoor, Inc. v. International Unions o/Painters
and Allied Trades, 558 F.3d 670, 676 (7th Cir. 2009), the court found that when a
collective bargaining agreement identifies certain conduct that "may" be deserving
of discharge, an arbitrator does not exceed his or her authority when he or she finds
that "the agreement imposed on the employer the obligation to exercise its discretion
in determining which penalty to impose." Id.
The matter now before this Court is no different. As the parties' contract
indicates that the employer "may" impose termination for a positive drug result, it
was the arbitrator's job to determine whether that discretion was properly exercised
by the District.
In the case at bar, the applicable language ofthe parties' collective bargaining
agreement states:
Suspension without payor discharge may be invoked with
-13
less than two (2) written warnings where the employee's
conduct creates a danger to the health, safety or welfare of
staff, students and/or the general public or creates a danger
to property. A positive test result in any required drug or
alcohol test is considered such a danger to health, safety or
welfare of staff and/or the general public or creates a
danger to property. R. 94, emphasis supplied.
Contrary to the District's argument, which it asserts by selectively quoting the parties'
agreement to omit the word "may" (Appellant's Reply Brief at p.7), the Union and
District did not agree unequivocally that a positive test result mandated discharge.
Rather, the agreement clearly offers a choice ofoptions, saying that "discharge
may be invoked on less than two prior written warnings." The arbitrator expressly
recognized this discretionary language, rationally concluding that "[t]ennination of
employment is not mandated." R. 66.
Consistent with Rochester CSD and similar cases, the arbitrator in this case was
wholly within his authority to read the agreement as he did. Much as the district in
Rochester CSD negotiated sabbatical leave, the District in this case "chose to
negotiate the point," namely discharge for a positive test result, and "agreed to
exercise [its] discretion in a certain manner, or so the arbitrator could find." 41
N.Y.2d at 584. And here, the arbitrator did so find.
Although the District disagrees with the arbitrator's rational interpretation of
the word "may," such disagreement does not justify vacatur. In fact, the District's
-14
entire argument about that proper interpretation goes to the very merits ofthe dispute
the arbitrator was asked to decide. Under CPLR 7501 and the precedents cited above,
the Court should not overrule the arbitrator's determination.
C. IT WAS NOT TOTALLY IRRATIONAL FOR THE
ARBITRATOR TO APPLY A "JUST CAUSE" STANDARD IN
A DISCIPLINARY ARBITRATION BECAUSE THAT
STANDARD DRAWS ITS ESSENCE FROM THE PARTIES'
COLLECTIVE BARGAINING AGREEMENT.
Having established that the District's exercise ofdiscretion to choose discharge
is within the arbitrator's authority to evaluate, we turn to the question ofwhether the
arbitrator's Award rationally applied a "just cause" standard, such that the District
could not discipline the unit member without just cause.
An arbitrator's application of a just cause standard for discipline, even where
not expressly provided for in a collective bargaining agreement, is not subject to
vacatur under Article 75 and the Court's holdings so long as the award draws its
essence from the agreement and is not totally irrational. Here, the Award was not
completely irrational; the arbitrator clearly reasoned that the agreement, considered
as a whole, contemplated application of the just cause standard.
As discussed fully above, judicial interference with the arbitral process is
disfavored. See, Sprinzen v. Nomberg, 46 N.Y.2d 623, 629 (1979). Where parties
have mutually agreed to resolve their disputes privately they are bound by the results
-15
of that agreement and any resulting arbitration award, absent extraordinary
circumstances.
According to numerous court decisions, an award applying a just cause
standard, despite the absence of an express just cause standard in the parties'
collective bargaining agreement, is not completely irrational. In addition to those
cited by CSEA (Brief at 20-21), other decisions also recognize an arbitrator's
authority to imply a just cause standard where the agreement does not otherwise limit
his or her authority in that regard. For example, in United Food and Commercial
Workers International Gold Star Sausage Co., 487 F.Supp. 596 (D. Colo. 1980), the
court explained that it is an arbitrator's duty to determine whether or not an
agreement limits an employer's otherwise unfettered right to fire employees at will.
Following the Supreme Court's guidance in Warrior & Gulf, the court explained that
arbitrators interpret contracts not only based on their express language, but also upon
"the industrial common law - - the practices of the industry and the shop." 487
F.Supp. at 600.
Other courts similarly have ruled that an arbitrator's finding ofan implied just
cause requirement does not warrant vacatur. See, Day & Zimmerman/Basil Corp. v.
IUOE, 76 F.3d 385 (9th Cir. 1995) (implied just cause "was based on the arbitration
clause and other provisions in the collective bargaining agreement and thus the award
-16
drew its essence" from that agreement); Haren v. Superior Dairy, Inc., et aI., 2004
WL 1879094 (Ohio App. 5 Dist.) ("[W]e find just cause requirements are inferred in
modem day Collective Bargaining Agreements which do not contain a contrary
express provision."), citing SFIC Properties, Inc. v. Machinists Lodge 94, 103 F.3d
923 (9th Cir. 1996); Hanover School District v. Hanover Education Association, 814
A.2d 292, 295-297 (Commonwealth Ct. of Penn. 2003) (upholding prior precedent
finding that an arbitrator does not commit reversible error "by detennining that the
understanding that employees cannot be disciplined without just cause is implicit in
collective bargaining agreements that lack explicit employee discipline provisions").
Finally, the Court should consider its decision in Bohlinger v. National Cash
Register Co., 305 N.Y. 539 (1953), where an employer moved to stay arbitration with
respect to its discharge of two employees, arguing that the collective bargaining
agreement did not include provisions regarding employee discipline. This Court
found the dispute arbitrable based on the agreement's broad arbitrability language.
In so ruling, the Court noted,
[T]he agreement, as both the employer and union agree,
otherwise fails to provide whether the employer shall have
the right to discharge without notice and without cause.
Each party disputes the effect of that omission ...We need
not resolve that dispute as to how the collective bargaining
agreement should be construed because its mere statement
demonstrates conclusively that under the broad language of
-17
the arbitration clause, the opposing contentions of the
parties ought to be resolved by the arbitrators in respect of
its interpretation.
305 N.Y.2d at 542-543. Although not directly on point with the case here, as the
agreement between the District and CSEA in fact touches upon certain aspects of
employee discipline, Bohlinger instructs that it is the arbitrator's duty, notthe court's,
to decide the significance, if any, of a missing "cause" requirement in employment
discipline.
The arbitrator's opinion here provides a sound basis for his conclusion that the
parties' agreement must be read to contain an implied just cause requirement:
A standard for discipline, if not set forth in an agreement,
must always be implied, therefore, in order to give meaning
to the agreement's provisions and to acknowledge covered
employees' rights to the protection and benefits of those
provisions...The District's proposed [arbitrary and
capricious] standard is heavily weighted toward protecting
employer interest [sic]. It is a standard that does not give
due consideration to the rights and interests ofemployees,
particularly when their livelihoods are at stake. The just
cause standard gives due consideration to the rights and
interests of all concerned parties which explains why it is
the standard set forth in the overwhelming number of
collective bargaining agreements. R.68.
Thus, the arbitrator carefully considered the express provisions ofthe agreement and
"the industrial common law" governing today's workplaces. That the District
disagrees with this rationale is irrelevant; a party should not be able to obtain through
-18
the courts that which it was not able to get at the bargaining table.
Also, as noted above, the arbitrator in this case cannot be said to have acted
entirely irrationally when he answered the agreed-upon questions put before him:
"Did the District Violate [sic] Article IV of the Agreement when it terminated
Grievant effective November 10, 2009? If so, what shall the remedy be?" R. 59. In
his Award, the arbitrator meticulously explained his answers (quoted above) and
rationale in his opinion accompanying the A ward. That the District, or the Court for
that matter, may disagree with the Award's answers in his opinion is not, as explained
on countless prior occasions by this and other courts, grounds to vacate the award.
Furthermore, as noted by this Court in New York City Transit Authority, supra,
"arbitrators are mutually chosen by labor and management because oftheir particular
expertise and insight into the relationship, needs ofthe parties, conditions existing in
the specific bargaining unit, and the parties' trust in [the arbitrator's] personal
judgment to bring to bear considerations which are not expressed in the contract. ... '"
See also, Rochester CSD, 41 N.Y.2d at 582 ("In the final analysis, 'Arbitrators may
do justice' and the award may well reflect the spirit rather than the letter of the
agreement. ")
Here, the arbitrator mutually chosen by the parties was Dr. James A. Gross, a
faculty member at the New York State School ofIndustrial and Labor Relations, part
-19
of Cornell University ("ILR"). See, http://www-ilr.comell.edu/directory/jag28/.In
addition to teaching at ILR for approximately 46 years, Dr. Gross is an experienced
and seasoned arbitrator who has published seven books and 30 articles, virtually all
In the subject areas of labor and arbitration. See,
http://www.ilr.comell.edu/directory/jag28/vita.htm. The parties placed their "trust
in [Dr. Gross'] personal judgment to bring to bear considerations which are not
expressed in the contract." In other words, and as acknowledged by the Appellate
Division's dissent, it is indeed an arbitrator's job "to fashion a resolution of [the]
dispute that he thought was palatable to all involved." R. 16. Again, the fact that the
District disagrees with Dr. Gross' judgment is not enough to justify vacatur.
In sum, it was not totally irrational for the arbitrator to find a just cause
requirement. As indicated by this Court in Bohlinger, and as adjudged by other
courts outside ofthis state, an arbitrator is permitted to find a just cause requirement
in the absence ofany other express disciplinary standard in the contract. Here, having
found that the employer had discretion as to whether or not to impose discipline, the
arbitrator properly reviewed the exercise ofthat discretion using a just cause standard.
Accordingly, the appellate division's decision should be affirmed.
-20
POINT III
THE ARBITRATOR'S REINSTATEMENT OF MS.
DIDOMENI CANTONIO DOES NOT VIOLATE PUBLIC
POLICY BECAUSE THERE IS NO PUBLIC POLICY
FOUNDED IN CONSTITUTIONAL, STATUTORY OR
COMMON LAW WHICH MANDATES THE
TERMINATION OF AN EMPLOYEE WHO HAS USED
MARIJUANA.
To violate public policy, an arbitration award must run afoul of a plain and
clear constitutional, statutory, or decisional law. See, Sprinzen, 46 N.Y.2d at 631.
Here, the District can point to no such source of law that, as a matter ofpublic policy
in this state, prohibits a public employer from reinstating a school bus driver who has
been found guilty of marijuana use. Accordingly, the Court should reject the
District's arguments.
Ignoring U.S. Supreme Court precedent to the contrary, the District urges this
Court to fashion a bright line rule that "reinstatement of a known illegal drug abuser
as a school bus driver violates the strong public policy of this state to protect school
children." Appellant's Briefatp.34. First, the record in this matter is devoid ofany
proof that Ms. DiDomenicantonio is an "abuser" of marijuana. More important,
nothing in New York's public policy prohibits in an "absolute sense" the
reinstatement of a bus driver who tests positive for marijuana on a single occasion,
without any proof ofcurrent or ongoing impairment.
-21
Notably absent in the District's argument is any acknowledgment of the
standard employed by the courts with regard to the public policy exception. As this
Court most recently noted in City School Dist. o/the City o/New Yorkv. MeGraham,
17 N.Y.3d 917, 919 (2011), judicial interference with an arbitrator's award is
warranted only in "cases in which public policy considerations, embodied in statute
or decisional law, prohibit, in an absolute sense, particular matters being decided or
certain relief being granted by an arbitrator."t (Emphasis added.) To be prohibited
in an "absolute sense," the relief granted by an award must implicate more than
"general considerations of supposed public interests" and "more than a general
societal concern must be at issue," contrary to the general conclusion ofthe appellate
division's dissent in this matter. Local 333 v. N.YS. Dep't o/Transp., 35 A.D.3d
211, 213 (15t Dep't 2006), quoting WR. Grace & Co. v. Local Union 759, 461 U.S.
757,766 (1983); NYS. Office o/Children and Family SenJices v. CSEA, et at., 79
A.D.3d 1438,1439 (3d Dep't 2010); Mattero/New York State Correctional Officers
& Police Benevolent Ass 'n, 94 N.Y.2d 321,327; R. 16 ("For these reasons, and for
what we believe are sound public policy considerations implicated by petitioner's
lHere, since the arbitrability of the issue is not in dispute, the question focuses not on
whether public policy prohibits a "particular matter[ ] being decided"; rather, the crux ofthe
matter is whether "certain relief being granted" is permissible. See also, NYSCOPBA v. New
York, 94 N.Y.2d 321, 326 (1999) ("[t]he focus of Oudicial] inquiry is on the result, the award
itself ...")( emphasis in original).
-22
legitimate concern that school bus drivers not be substance abusers, we believe that
the arbitrator exceeded his authority and issued a determination that violates sound
public policy.")
In McGraham, this Court rejected the blanket proposition that the award there,
which reinstated a teacher who had an inappropriate emotional relationship with a
student, violated the public policy of "protecting children." McGraham, 17 N.Y.3d
at 920. While acknowledging that goal is a laudable one, this Court concluded there
is no source of law that, in an "absolute sense," prohibited that teacher's
reinstatement. Id. Simply put, the District fails to meet this burden, the purpose of
which is to discourage the courts from second-guessing the bona fides of an
arbitration award. NYSCOPBA, supra, 94 N.Y.2d at 326 ("A court cannot examine
the merits ofan arbitration award and substitute its judgment for that ofthe arbitrator
simply because it believes its interpretation would be the better one.").
The District would have this Court find, in absolute terms and regardless ofthe
circumstances, including an employee's exemplary work history, that an employee
who tests positive for marijuana must be terminated. There is simply no statutory or
case law authority that compels adoption of such a rule and NYSUT, as amicus,
strongly urges the Court to decline to do so now.
-23
Indeed, the federal courts have have rejected the argument advanced by the
District. In both United Paperworkers International v. Misco, 484 U.S. 29 (1987),
and Eastern Associated Coal Corporation v. United Mine Workers ofAmerica, 531
U.S. 57 (2000), the Supreme Court found that the reinstatement of employees who
tested positive for marijuana did not violate public policy. Moreover, citing Misco,
the Second Circuit found that a nuclear power plant worker's positive test result for
cocaine did not bar his conditional reinstatement. Int'/ Bhd. OfElec. Workers v.
Niagara Mohawk, 143 F.3d 704 (2d Cir. 1998).
Moreover, the District's own argument conflicts with the very position it
advances. For example, it attempts to distinguish Local 333 from the matter at bar
by asserting that Ms. DiDomenicantonio "had an entirely unmitigated positive drug
test result." Appellant's Reply Brief at p.l7. However, if testing positive for
marijuana is per se against public policy in an "absolute sense" as proposed by the
District, mitigating factors would be irrelevant.
In reality, though, such factors are relevant and material to an arbitrator's
determination and were presented in the matter at bar. As noted by the arbitrator,
A positive drug test warrants serious discipline as
recognized by the Parties in Section 4 7(C)( 4). At the same
time, the Grievant has been a school bus driver for the
District for almost ten years. During that time her record
has been clear ofdiscipline. The Grievant testified without
-24
contradiction that she has been the subject of 'a good half
dozen or so' random tests during her employment with the
District and never failed a test prior to October 21, 2009.
In addition, one of the Grievant's supervisors testified that
Grievant was 'very good as a driver': 'you could count on
her to be there;' there were 'no parent complaints about
her;' and 'she knew the kids on her bus.' The Grievant's
annual evaluations, moreover, have never been rated below
'meets expectations' in any respect. This is not the record
of a drug user or of someone who is a danger to the safety
ofchildren or anyone else. It is the record ofa person who
has earned reinstatement to her job. R. 68-69.
Insofar as penalty, the arbitrator acknowledged the seriousness of the offense
and found a seven month unpaid suspension appropriate, conditioned on Ms.
DiDomenicantonio's compliance with return-to-work and continued random testing.
R. 69. The penalty award, sufficiently recognizing the seriousness ofthe offense and.
the importance of continued testing, must be the focus of the Court's review. See,
Me Graham , supra, 17 N.Y.3d at 920 (approving the arbitrator's "reasoned
conclusion" with regard to a 90 day suspension).
Regarding statutory or regulatory authority on the topic, federal law and
regulations do not, as conceded by the District (Briefatp. 33), prohibit reinstatement
after a positive drug test result. Further, as pointed out by the arbitrator, the District's
own policy on "Drug and Alcohol Testing for School Bus Drivers and Other Safety-
Sensitive Employees," which was revised in July 2007 - - only two years prior to Ms.
-25
DiDomenicantonio's positive result - - provides for return-to-duty and follow-up
testing "when an individual who has violated the prohibited alcohol and/or drug
conduct standards returns to preforming safety-sensitive duties." R. 237; R. 67.
Notwithstanding this policy, the District now proclaims that "[t]here are some
offenses - - including illegal drug use by a school bus driver - - which do not warrant
a second chance." Appellant's Brief at p.38. This begs the question of how the
District on the one hand can maintain a policy that expressly anticipates return to
work drug testing, but on the other hand assert that reinstatement of Ms.
DiDomenicantonio, who tested positive for marijuana, is against the public policy of
the state?
By way ofcontrast, it is helpful to point to Education Law §3020-a and Public
Officers Law §30, both ofwhich establish automatic termination ofemployment for
certain public servants who are guilty ofspecific offenses. Namely, Education Law
§3020-a(2)(b) deems a teacher automatically terminated from employment, without
a hearing, after conviction of certain sex offenses. Similarly, Public Officers Law
§30(1)(e) automatically deems vacant any position where the incumbent has been
convicted of a felony. Clearly, these are examples of specific public policies that
mandate termination in specific circumstances. The District here references no such
basis for the public policy it promotes, and it cannot because no such policy exists.
-26
Furthermore, there are practical and contextual considerations that militate
against a wide-reaching,per se public policy exception with regard to marijuana use.
First, it is a well-established medical fact that evidence ofmarijuana use can remain
detectable in a person's urine, based on last usage, from several days up to 67 days?
See, e.g., In re D. Children, 25 Misc.3d 1208 at *7 (N.Y. Co. Family Ct. 2009), citing
Drug Court Practitioner Fact Sheet, IV National Drug Court Institute No.2 (April,
2006). This is in contrast to drugs considered much more serious by both the law and
society, such as cocaine and PCP, which eliminate from the body in as little as one
to six days. Drug Court Practitioner Fact Sheet, IV National Drug Court Institute
No. 2 (April 2006) at p. 3, retrieved on June 18, 2012 at
http://www.ndci.org/publications/fact-sheets.
Therefore, a blanket "no-reinstatement" rule, without consideration of the
surrounding circumstances, disregards whether or not the person was under the
influence at the time of testing (ofwhich there was no evidence offered with regard
to Ms. DiDomenicantonio) or the frequency of usage.
2 Notably, the District refers to Ms. DiDomenicantonio as a "known illegal drug abuser."
Appellant's Brief at p. 34. Given the period oftime marijuana remains in one's urine and the
lack of evidence whatsoever in the record with regard to Ms. Domenicantonio' s prior use, if any,
it is inappropriate and unfortunate to label her or any employee who has a single positive drug
test result a "drug abuser."
-27
Second, the public policy exception looks to what is "embodied in statute or
decisional law." See, McGraham, supra. New York law does not consider marijuana
use a seriously punishable offense, considering possession of minor amounts of
marijuana in private to be a simple violation (Penal Law §221.05) and considering
consumption in and of itself not to be unlawful at all without further aggravating
conduct.3 Indeed, there are continuing efforts to standardize penalties for marijuana
possession. See, S.5187 (2012), A.7620 (2012). Such legislation, which has been
publicly supported by the governor, would make public possession ofminor amounts
of marijuana a violation, the rule which already applies to private possession.
Third, it can not be gainsaid that protecting children is an important and shared
public concern, just as it was in McGraham; just as prison safety was in NYSCOPBA;
and just as public safety was in TWU. But, in a general sense, almost any act ofschool
employee negligence or misconduct can be viewed as implicating that concern to
some degree. Still, not every such act must result in the employee's termination absent
some specific delineation of public policy mandating such a harsh result. There
simply is no public policy mandating that a public employee must be fired based on
the results of a single drug/alcohol screening.
3 E.g., operating a motor vehicle under the influence of drugs (Vehicle & Traffic Lavv
§1192(4)) and appearing publicly under the influence of narcotics (Penal Law §240AO). In Ms.
DiDomenicantoni's case, neither set of circumstances was proved by the District.
-28
In this same vein, although the facts ofthis case are a matter of first impression
for this Court, lower courts have repeatedly held that, in the context of Civil Service
Law § 7 5 proceedings, the termination of a school bus driver for safety-related issues
can be shocking to the conscience. See, Smith v. Bd. ofEduc. ofTaconic Hills Cent.
Sch. Dist., 235 A.D.2d 912 (3d Dep't 1997) (driving 78mph in a 55mph zone did not
warrant termination) and Smith v. Bd. ofEduc. of Onteora Cent. Sch. Dist., 221
A.D.2d 755 (3d Dep't 1995) (termination for verbal and physical altercation with
student inappropriate), both citing Ross v. Oxford Academy and Cent. Sch. Dist., 187
A.D.2d 898 (3d Dep't 1992) (finding of guilt for using physical force did not justify
termination). Implicit in these same decisions is that the courts had no concerns that
reinstatement of a bus driver despite findings of guilt would violate public policy.
In sum, the District has failed to meet the high bar necessary to show that a
single positive drug test for marijuana bars reinstatement of a public employee as a
matter of public policy. It pleads its case based not on "absolute" public policy as
required by longstanding New York case law, but upon "general societal concerns,"
seeking to have the Court interfere with an arbitrator's wide discretion in fashioning
an appropriate remedy. New York's recognized public policy favoring arbitration of
disputes in the public sector discourages such judicial interference, and this case
-29
104167
presents no cause to depart from that policy. Accordingly, the Appellate Division's
decision should be affirmed.
Dated: November 19,2012 Respectfully submitted,
Latham, New York 12110 RICHARD E. CASAGRANDE
800 Troy-Schenectady Road
Latham, New York 12110-2455
Tel. No. (518) 213-6000
sf Matthew E. Bergeron
By:
MATTHEW E. BERGERON
Of Counsel
-30
APPENDIX
C
Page 2 of 15
Westiaw.
25 Misc.3d 1208(A)
25 Misc.3d 1208(A)
(Table, Text in WESTLAW), Unreported Disposition
(Cite as: 25 Mise.3d 1208(A), 901 N. Y.S.2d 898)
Matter of D. Children v Geneva D.
25 Misc.3d 1208(A), 901 N.Y.S.2d 898
N.Y.Fam.Ct.2009.
25 Misc.3d 1208(A), 901 N.Y.S.ld 898, 2009 \VL
3163217,2009 N.Y. Slip Op. 52002(U)
This optnlon is uncorrected and will not be pub
lished in the printed Official Reports.
In the Matter ofD. Children Children under the age
of Eighteen Alleged to be Neglected by
v.
Geneva D., Respondent. In the Matter of
Syeeta D. Petitioner
v.
Geneva D. Respondent.
XXXXX
Family Court, Kings County
Decided on September 22, 2009
CITE TITLE AS: Matter of D. Children v Geneva D.
ABSTRACT
Parent and Ch ild
Custody
D. Children. Matter of, v Geneva D., 2009 NY Slip
Op 52002(U). Parent and Child-Custody. (Fam
Ct, Kings County, Sept. 22, 2009, Olshansky, 1.)
APPEARANCES OF COUNSEL
Noah Pow len, Esq.
Special Assistant Corporation Counsel
New York City Children's Services
330 Jay Street, 12th Floor
Page I
Brooklyn, New York 1120 I
Ira Goldstein, Esq.
For respondent mother
350 Livingston Street, Basement
Brooklyn, New York 11217
Michael Somma, Esq.
For maternal aunt Syeeta D.
2430 East 74th Street
Brooklyn, New York 11234
Mindy Blatt,
Law Guardian
189 Montague Street, Suite 521
Brooklyn, New York 11201
OPINION OF THE COURT
Emily M. Olshansky, 1.
The question presented is whether to move two
girls, ages three years and four months, from a non ..
kinship foster home to the home of their maternal
aunt. The maternal aunt has filed for custody of
both children who were removed from the care of
their mother at birth.
The fact-rmding and dispositional hearings have
been concluded in the child protective proceeding
involving the three year old, as well as four per
manency hearings. In addition, a petition to termin
ate respondent mother's parental rights has been
filed with respect to the older child. With respect to
the younger child, the article 10 case against re
spondent mother is currently in the pre-fact-fmding
stage.
Although the older child was previously placed
with the maternal aunt in kinship foster care for two
and one-half years, she was identified as the pre
adoptive resource, and respondent mother and the
Attorney for the Children all support the maternal
aunt's petition, it is opposed by New York City
Children's Services (hereinafter "NYCCS") for sev
eral reasons. First, NYCCS emphasizes that the ma
ternal aunt and her fiance, the former kinship foster
parents, each used marijuana on at least one occa
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Page 3 of 15
25 Mise.3d 1208(A)
25 Mise.3d 1208(A)
(Table, Text in WESTLAW), Unreported Disposition
(Cite as: 25 Mise.3d 1208(A), 901 N.Y.S.2d 898)
sion and that, as a result, the kinship foster home
was closed. Second, NYCCS believes that the ma
ternal aunt is not capable of caring for Janea's spe
cial needs resulting from her premature birth and
positive toxicology for cocaine. Third, NYCCS as
serts that respondent mother does not want the chil
dren placed with the maternal aunt. Fourth, NYCCS
emphasizes the stability and companionship to be
gained by keeping the childrem together in the
horne of the non-kinship foster parents. Fifth,
NYCCS is concerned that the maternal aunt has ex
pressed more interest in the older child, who had
been placed in her horne for 30 months, than in the
baby who had not been previously placed in her
horne. Sixth, NYCCS contends that although the
maternal aunt has tested negative for drugs every
time she has been tested since the first two positive
test results, she has not attended a drug treatment
program on a daily basis and has not attended every
visit with the children that has *2 been offered. Fi
nally, with respect to the younger child, NYCCS
opposes the maternal aunt's petition because the
four-month-old child never previously lived in that
home and has not bonded with the maternal aunt
and her family. For the reasons set forth herein, the
Court rejects NYCCS's assertions, and orders that
Destiny be directly placed with the maternal aunt.
The maternal aunt's petition concerning Janea is
denied with leave to renew during the dispositional
hearing.
Factual Background
Destiny Desire D. was born to Geneva (also known
as Shanea) D. at Brooklyn Hospital on September
20, 2006 with a positive toxicology to cocaine. She
was premature, underweight and in respiratory dis
tress. No father was named on the birth certificate,
however, the mother has identified Mark Johnson
as Destiny's father.
On October 4, 2006, NYCCS filed a neglect peti
tion against Geneva D. (hereinafter "respondent").
The petition alleged that respondent and the baby
both tested positive for cocaine on the date of the
birth, that respondent was not regularly and volun-
Page 2
tarily participating in a drug treatment program,
that respondent had no stable means of support or
residence, that she failed to make any plans for
Destiny, that she only visited Destiny in the hospit
al once, that she provided no contact information
and that her whereabouts were unknown.
NYCCS requested and the Court granted a remand
of Destiny. Pursuant to Family Court Act §1017,
the Court directed NYCCS to conduct an immediate
investigation of all of the family members who had
expressed an interest in caring for the child, includ
ing the maternal aunt, the maternal grandmother
and the maternal grandfather. Shortly thereafter, on
November 3, 2006, NYCCS certified Destiny's ma
ternal aunt and her fiance, Shakhim M., as kinship
foster parents and Destiny was placed in their
home.FNI
Ms. D. and Mr. M. have lived together for approx
imatley 10 years. They have one child in common,
Shaquille (date of birth October 9, 2003), and they
also reside with Ms. D.'s other children: Kymel
(date of birth September 22, 1989); Shandera (date
of birth June 27, 1992) and Deandre (date of birth
August I, 1994).
Issue was joined on the neglect petition on Febru
ary 15, 2007. On that date, the Court conducted an
inquest and made a fmding of neglect against re
spondent based on a preponderance of the evidence,
which established her abuse of the drug cocaine to
the extent required by Family Court Act § 1012 (f)
(i) (B).
On March 2007, respondent, who was then in
carcerated at Riker's Island, was produced. She ap
peared in court for the first time and counsel was
assigned. On May 24, 2007, the Court conducted a
permanecy hearing and entered a dispositional or
der on consent. Destiny was placed with the Com
missioner and respondent was directed to remain in
and complete the "SHOCK" substance abuse treat
ment program, submit to random urine testing and
remain free of illegal drugs and alcohol. The
CHIPS program was directed to facilitate visitation
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Page 4 of 15
25 Misc.3d 1208(A)
25 Misc.3d 1208(A)
(fable, Text in WESTLAW), Unreported Disposition
(Cite as: 25 Mise.3d 1208(A), 901 N. Y.S.2d 898)
during the period of time that *3 respondent was in
carcerated at the Lakeview Correctional Facility. In
addition, respondent was granted visitation with
Destiny while she remained incarcerated at Riker's
Island. Those visits were to be supervised by either
the maternal aunt or the maternal grandmother.
Subsequent permanency hearings were conducted
on November 20, 2007, June 25, 2008 and January
21, 2009. On January 21, 2009, the permanency
goal for Destiny was changed from "return to par
ent" to adoption. The maternal aunt was identified
as the adoptive resource. The agency was directed
to file a petition to terminate respondent's rights
within 90 days.
lhroughout this period, Destiny remained in kin
ship foster care with the maternal aunt, Mr. M. and
their children. The kinship foster home was super
vised and visited by NYCCS and agency casework
ers at least once each month. In addition, the home
was presumably subject to annual recertification in
accordance with the Commissioner's regulations.
Throughout this period, NYCCS and the foster care
agency provided numerous permancy hearing and
other status reports to the court. Those reports were
uniformly positive in their description of the mater
nal aunt, the kinship foster home and Destiny's pro
gress while residing in that home. For example,
NYCCS reported that Destiny was "thriving" in her
kinship foster home, where the maternal aunt was
"providing a loving home for the subject child and
want [ed) to adopt" (Report from NYCCS dated
May 23, 2007, at p. 2). The foster care agency re
ported that Destiny adjusted well to the kinship
foster home. "Destiny is very attached to Ms. D.
and calls her mommy. Destiny is very close to her
cousin ShaquilIe and is an integral part of the fam
ily" (Protestant Board of Guardians report dated
September 17, 2008, at p. 1).
Destiny was assessed for Early Intervention. She
was initially refered for services, however, services
were soon discontinued due to her "tremendous de
velopmental improvements" (Protestant Board of
Guardians report dated April 16, 2007). Thereafter,
Page 3
Destiny started to develope age - appropriately and
no additional services were needed. She received
regular medical care and was described as "healthy
and stable" (Permanency Hearing Report dated
November 20, 2007, at p. 10; Protestant Board of
Guardians report dated Jan. 29, 2008). Her immull
izations were kept up to date (Protestant Board of
Guardians report dated April 2, 2008, p. 1). The
agency reported that she did not have any medical
problems (Ed.).
According to the agency, Ms. D. saw to all of Des
tiny's needs (Ed.). She provided a "safe and nurtl1r
ing environment for the child and ensure[d) that all
of the child's needs [we)re being met. Ms. D. and
her family expressed their love for Destiny and Ms.
D. reported that she love[d) the child as if the child
were her own daughter" (ld.). According to the
agency, Ms. D. had a "very supportive family who
help[ed] her with Destiny" (ld., at p. 7; Permanency
Hearing Report dated November 20, 2007) and
"often provided fmancial assistance as needed"
(Protestant Board of Guardians report dated Febnl v
ary 15,2007).
Destiny "adjusted well in the home and bonded
with the kinship foster parent ... and extended fam
ily members" (Protestant Board of Guardians report
dated April 2, 2008, at p. 3; Permanency Hearing
Report dated January 21, 2009, at pp. 6 - 7). Ms. D.
took "very good care of the child. She [wa)s able to
meet all of the child's needs" (Protestant Board of
Guardians report dated Jan. 29, 2008, at p. I). Ac
cording to the agency, Ms. D. "provides a safe and
nurturing home for the child" (Permanency Hearing
Report dated May 24, 2007). "Ms. D. and her back
up [baby]sitter provide a safe and nurturing envir
onment for the child. Ms. D. and her family have
shown a lot of love to Destiny and love her, the
same way that they love their own children" *4
(Permanency Hearing Report dated May 5, 2008 at
p. 7; Permanency Hearing Report dated January 21,
2009, at p. 7). Thereafter, the agency reported that
"Ms. D. and her family have shown Destiny lots of
love and are willing to [continue to) provide care to
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Page 5 of 15
25 Misc.3d 1208(A)
25 Misc.3d 1208(A)
(Table, Text in WESTLA W), Unreported Disposition
(Cite as: 25 Mise.3d 1208(A), 901 N.Y.S.2d 898)
Destiny" (Permanency Hearing Report dated Janu
ary 21, 2009, at p. 7) and "to adopt [her] once she
becomes free for adoption" (Id. at p. 5; Permanency
Hearing Report dated November 20, 2007).
Ms. D. fully cooperated with both of the foster care
agencies and NYCCS and complied with all court
orders. She brought Destiny to all of her medical
appointments and early intervention evaluation. As
directed, she took Destiny to visit respondent at
Rikers Island and to respondent's graduation from
one of her drug treatment programs (Protestant
Board of Guardians report dated Jan. 29, 2008). In
addition, she kept the agency apprised of all visits
and other contacts with respondent (Permanency
Hearing Report dated January 21, 2009, at p. 7;
Permanency Hearing Report dated May 12, 2008).
She cooperated with court orders providing for vis
itation for the maternal grandparents.
Although NYCCS and the agency were well aware
of the fact that Ms. D. had two prior indicated cases
against her based on the failure of her son Daequan,
then age 16, to attend school during the 2006 - 2007
school year, they never expressed any reservations
about Ms. D. or her home. To the contrary, the
agency concluded that Ms. D. was "a valuable re
source for the child Destiny with connections to the
birth mother and birth father and community" (ld.
at p. 6). Ms. D.'s home was the "least restrictive
placement for the child and allow[ed] her to contin
ue to bond with the birth family and grow."
On March 13, 2009, the agency filed a petition to
terminate the parental rights of respondent mother
(B-2392/09). Issue was joined on August 3, 2009.
On May 3, 2009, respondent gave birth to her
second child, Janea D .. Three days later, a planning
conference was conducted. During that conference,
respondent stated that she did not want Janea
placed with Ms. D. because her sister used drugs.
On May 6,2009, NYCCS filed a second neglect pe
tition against respondent. The petition alleged that
respondent and Janea both tested positive for co-
Page 4
caine on the date of the birth, that respondent was
not regularly and voluntarily participating in a drug
treatment program, that respondent had left her
drug treatment program in February 2009, and that
she admitted to using "crack" cocaine three times
per week during her pregnancy and three days be
fore the birth of the child. NYCCS requested and
the Court granted a remand of the baby.
On May 6, 2009, Ms. D. appeared in Family Court
asking that the child be placed in her home. She
denied the allegations of drug use and volunteered
to take a drug test. The test was conducted by Kings
County Family Treatment Court and was positive
for marijuana (petitioner's exhibit No.14 in evid
ence). On May 8, 2009, Ms. D.'s fiance, Mr. M.,
was asked to submit to a drug test and he also
tested positive for marijuana. As a result, an aRT
was called into the New York State Central Re
gistry. Destiny was immediately removed from Ms.
D.'s home without notice or a hearing (see18
NYCRR §§ 443.11 and 434.2 [f]; see also Johnson
v City of New York, 2003 WL 1826122 [SDNY];
Harley ex ref Johnson v City of New York, 36 F
Supp 2d 136 [EDNY 1999]; Rivera v Marcus, 696
F2d 10 16 [2d Cir 1982]), and placed in non - kill
ship foster care with Janea.
On May 12, 2009, Ms. D. filed a petition seeking
custody of Destiny (V-15076/09). On May 13,
2009, Ms. D. filed an Application for Judicial Ac
tion requesting the immediate return of Destiny to
her home as a kinship foster home. She also reques
ted a hearing pursuant to Family Court Act §1028-a
in an effort to have Janea placed in her home. Both
of those applications were ultimately *5 denied
since the Court lacked the authority to compel
NYCCS to recertify Ms. D.'s home as a kinship
foster home and because Ms. D. did not satisfy the
stringent requirements of Family Court Act §
1028-a.FN1
On June 8, 2009, Ms D. voluntarily enrolled in the
North Shore - Long Island Jewish Health System
Far Rockaway Treatment Center. On June 18, 2009,
the first time Ms. D. was tested by the Center, she
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Page 6 of 15
25 Misc.3d 1208(A)
25 Misc.3d 1208(A)
(Table, Text in WESTLAW), Unreported Disposition
(Cite as: 25 Mise.3d 1208(A), 901 N.Y.S.2d 898)
again tested positive for marijuana.
Thereafter, the Office of Special Investigations
commenced an investigation which concluded on
July 13, 2009. The report was "indicated" based on
the positive tests for marijuana by the kinship foster
parents.
On July 22, 2009, Ms. D. filed a petition seeking
custody of Janea (V-23609-1 09). On July 29, 2009,
at Ms. Do's request, an independent review was con
ducted. At the conclusion of the review, the prior
decision to close the kinship foster home was up
held since "foster parents are held to a standard that
does not allow for any drug use. The standards do
not only apply to the type of care a child receives
but also to the type of behavior expected as a foster
parent" (see Report of Decision after Independent
Review [Maternal Aunt's exhibit #
I in evidencen.
On August 20 and August 27, 2009, the Court con
ducted a combined custody and permanency hear
ing for Destiny, as well as Family Court Act § 1017
hearing for Janea, During the hearing, NYCCS
called only one witness to testify, caseworker Beck
er. The maternal aunt called her fiance to testify
and she also testified on her own behalf.
Ms. Becker testified she had been assigned to the
case only recently. She testified about the agency's
decision to remove Destiny from the maternal
aunt's home after she and Mr. M. each tested posit
ive for marijuana on one occasion. She testified
about Janea's special needs resulting from her pre
maturity and positive toxicology to cocaine and the
agency's concern that Ms. D. was not in a position
to provide for those needs.
Ms. Becker also testified that both Ms. D. and Mr.
M. had tested negative for drugs and *6 alcohol on
every occasion after the initial positive test results.
Nevertheless, she indicated that the agency had
doubts about the accuracy of Mr. M.'s negative
tests, According to Ms. Becker those doubts were
Page 5
based a discussion that she had with a substance abo
use counselor from the agency. According to Ms.
Becker, she told the agency counselor that two of
Mr. M.'s test results revealed an unusually high wa
ter content. She testified that he responded by say
ing that, in his opinion, test results of this kind in
dicate tampering.
Ms. D. described the two and one-half years she
and her family spent with Destiny. Ms. D. and Mr.
Morrision both testified about their love for Destiny
and how much they and their other children missed
her. Ms. D. described her agency supervised visits
with Destiny. Both Ms. D. and Mr. M. testified that
they stopped using marijuana when they were
young adults. They testified that they had, however,
both smoked marijuana on May 5, 2009, at a family
gathering which was held after the conclusion of
funerals held for two of Ms. D.'s cousins. Both Ms.
D. and Mr. M. adamently denied the assertion that
they used marijuana on more than one occasion,
Ms. D. indicated that although she does not have a
substance abuse problem, she voluntarily enrolled
in a drug treatment program with the hope lhat it
might help her have the children placed in her
home. She explained that her attendance at that pro
gram was somewhat irregular because she had other
children to care for and she was seeking full time
employment. She further testified that she would be
able to provide for the children financially even jf
her home was not recertified as a foster home.
Ms. D. testified that when her older son Daequan
was 16 years old he failed to attend school regu
larly during the 2006 - 2007 academic year. She de
scribed the efforts that she made in an attempt to
ensure that he attended school, including taking
him there herself on a daily basis.
Documents were also admitted into evidence in
cluding a report from the North Shore - Long Island
Jewish Health System Far Rockaway Treatment
Center dated August 19,2009 (petitioner'S exhibit Ii
1 in evidence); a report from NYCCS dated August
20, 2009 (petitioner's exhibit #
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Page 7 of 15
25 Misc.3d 1208(A)
25 Misc.3d 1208(A)
(Table, Text in WESTLAW), Unreported Disposition
(Cite as: 2S Mise.3d 1208(A), 901 N.Y.S.2d 898)
2 in evidence); the drug test results for Mr. M. from
EDNY (petitioner's exhibit #
3 in evidence); the Permanency Hearing Report for
Destiny dated July 23, 2009 (petitioner's exhibit #
4 in evidence); an addendum to the Permanency
Hearing Report dated July 23, 2009 (petitioner's ex
hibit #
5 in evidence); the report of the Office of Special
Investigation (petitioner's exhibit #
6 in evidence); an oral report transmiSSIOn
(hereinafter "aRT") dated May 6, 2009, along with
progress notes (petitioner's exhibit #
7 in evidence); an aRT dated March 27, 2007,
along with progress notes (petitioner's exhibit #
8 in evidence); an aRT dated November 29, 2006,
along with progress notes (petitioner's exhibit #
9 in evidence);FN3 and a report from the foster care
agency dated August 29,2009 (petitioner's exhibit #
10 in evidence).*7
The report of the decision after the Independent Re
view was introduced by the maternal aunt (maternal
aunt's exhibit #
1 in evidence). The Law Guardian introduced nu
merous documents into evidence including a letter
from her dated July 27, 2009, that had been submit
ted on behalf of the maternal aunt during the inde
pendent review (Law Guardian's exhibit #
I in evidence); the prior Permanency Hearing Re
port dated May 24, 2007 (Law Guardian's exhibit #
2 in evidence); the prior Permanency Hearing Re
port dated November 20, 2007 (Law Guardian's ex
hibit #
3 in evidence); the prior Permanency Hearing Re
port dated May 12, 2008 (Law Guardian'S exhibit #
Page 6
4 in evidence); the prior Permanency Hearing Re··
port dated January 21, 2009 (Law Guardian's cxhib··
it #
5 in evidence); the prior report from NYCCS dated
May 23, 2007 (Law Guardian's exhibit #
6 in evidence); the prior Protestant Board of Guard
ians report dated February 15, 2007 (Law Guardi
an's exhibit #
7 in evidence); the prior Protestant Board of Guard
ians report dated April 16, 2007 (Law Guardian's
exhibit #
8 in evidence); the prior Protestant Board of Guard
ians report dated January 29, 2008 (Law Guardian's
exhibit #
9 in evidence); the prior Protestant Board of Guard
ians report dated April 2, 2008 (Law Guardian's ex
hibit #
10 in evidence); and the prior Protestant Board of
Guardians report dated September 17, 2008 (Law
Guardian's exhibit #
II in evidence).fN4 At the conclusion of the hear
ing, the court reserved decision and granted Ms. D.
and the children overnight weekend visitation.
By order to show cause dated September I, 2009,
NYCCS moved to reopen the hearing to allow for
the introduction into evidence of test results from
the Far Rockaway Treatment Center dated June 18,
2009, indicating that Ms. D. tested postive for
marijuana on the first day she was tested by the
Center. In addition, NYCCS sought to introduce in
to evidence an article by Paul L. Cary, M.S., en
titled Drug Court Practitioner Fact Sheet, IV Na
tional Drug Court Institute No. 2 (April 2006),
which was annexed to the order to show cause. The
article, citing numerous scientific studies, indicates
that the length of time an individual may continue
to test positive for marijuana after use can range
from several days to as long as 67 days. The article
cites numerous factors that can affect the length of
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Page 8 of 15
25 Misc.3d 1208(A)
25 Misc.3d 1208(A)
(Table, Text in WESTLAW), Unreported Disposition
(Cite as: 25 Mise.3d 1208(A), 901 N.Y.S.2d 898)
time marijuana can be detected in urine including
the drug dose, the drug's strength, the route of ad
ministration, the frequency of use, the duration of
use, the user's metabolism rate, the test's sensitivity
and the test's specificity. The motion to reopen the
hearing was granted without opposition on Septem
ber 14, 2009. Accordingly, the June 18, 2009 drug
test results were *8 deemed petitioner's #
I 1 in evidence and the article was deemed petition
er's #
12 in evidence.
Thereafter, by order to show cause dated September
11,2009, NYCCS again moved to reopen the hear
ing to allow for the introduction into evidence of a
psychiatric assessment of Ms. D. from the Far
Rockaway Chemical Dependency Program dated
June 2, 2009. In addition, NYCCS sought to sus
pend Ms. D.'s unsupervised visitation with the chil
dren. According to the psychiatric assessment, Ms.
D. reported that she had smoked one-half of one
marijuana cigarette on May 5, 2009. She also stated
that she drank coffee (2 4 cups per day) and
smoked cigarettes (between one - half and one full
pack of cigarettes per day). Ms. D. also reported
that she had been prescribed the anti-depressant Zo
loft recently after starting to experience symptoms
of depression and anxiety. Ms. D. reported that she
found the medication helpful but stated that she had
been required to discontinue it when her insurance
lapsed. She reported that without the medication,
she experienced difficulty sleeping and some symp
toms of anxiety and depression.
During oral argument in support of the motion for
interim relief, counsel for NYCCS asserted that Ms.
D. had previously failed to disclose this infonnation
to the agency. He later withdrew that assertion after
Ms. D.'s attorney pointed out that she had in fact
disclosed it and that the disclosure was documented
in NYCCS's own caserecords. On September 14,
2009, the motion to reopen the hearing was granted,
however, the motion to suspend unsupervised visit
ation was denied. Accordingly, the June 2, 2009
Page 7
psychiatric assessment was deemed petitioner's #
13 in evidence. In addition, the maternal aunt was
directed to appear in court on September 17, 2009
and submit to a urine test.
On September 17, 2009, the maternal aunt appeared
in court and tested negative for drugs and alcohol
(the report of the test results was subsequently ad
mitted into evidence as maternal aunt's exhibit "2"
in evidence). Mr. M. also appeared in court on that
date to voluntarily submit to urine testing. Because
there was no male case manager or technician
present in the Family Treatment Court that day, he
could not be tested in court. Although NYCCS was
asked to refer him for testing by an off-cite laborat
ory, they declined to do so.
Legal Analysis
I.Destiny's Best Interests Require that she be Dir
ectly Placed in the Custody ofthe Maternal Aunt
Having completed a combined pennanency and
custody hearing for Destiny, the court must deternl
ine whether Destiny should be moved from Ilon
kinship foster care and returned to the home of the
maternal aunt. NYCCS has indicated that, at this
point in time, it will not recertify the maternal
aunt's home as a kinship foster home. Con
sequently, Destiny can only be returned t6 her
aunt's home if the court terminates her foster care
placement and awards custody to the aunt under
either article 6 or article 10 of the Family Court
Act. Thereafter, the court will be required to de
termine whether to change the goal for Destiny
from adoption to "permanent placement with a fit
and willing relative" or a different goaL
The Family Court retains the statutory authority to
modify or tenninate any order entered during (In
article 10 proceeding. Family Court Act § 1061
grants the court the authority to "stay *9 execution,
of arrest, set aside, modify or vacate any order is
sued in the course of a proceeding under this (lIi
icle" based on "good cause shown and after due no
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Page 9 of 15
25 Misc.3d l208(A)
25 Misc.3d l208(A)
(Table, Text in WESTLAW), Unreported Disposition
(Cite as: 25 Mise.3d 1208(A), 901 N.Y.S.2d 898)
tice," on the court's "on its own motion, on motion
of the corporation counsel the petitioner, or on mo
tion of the child or on his behalf, or on motion of
the parent or other person responsible for the child's
care."
In addition, Family Court Act § l062 provides spe
cific authority for the court to grant an order ter
minating a foster care placement. The statute spe
cifically provides that, in addition to the child's par
ent or other person responsible for the child, a peti
tion to terminate placement may be brought by "any
interested person acting on behalf of a child." That
provision has been interpreted as including other
relatives, the Attorney for the Child and the guardi
an ad litem (Besharov, Practice Commentary,
McKinney's Cons. Laws of NY, Book 29A, Family
Court Act § 1061, at461).
These statutory provisions express a strong Legis
lative policy in favor of continuing Family Court
jurisdiction over children and their families so that
the court can do what is necessary in the further
ance of the children's welfare (In re Samantha s.,
80 Misc 2d 217 (Fam Ct, Schenectady County
1974]). They provide the court with continuing jur
isdiction to modify or vacate any dispositional or
der and terminate any foster care placement. This
authority is essential if the court is to meet its con
tinuing responsibility to protect the best interests of
the children (Besharov, Practice Commentary,
McKinney's Cons. Laws of NY, Book 29A, Family
Ct Act § 1061, at 461; Matter of Shinice H., 194
AD2d 444, 444-445 [lst Dept 1993] [the Family
Court retains jurisdiction to modify its prior orders
even where modification would circumvent the fair
hearing decision of the Department of Social Ser
vices since it is the Family Court and not the De
partment which acts as parens patriae to do what is
in the best interests of the child]; Matter of Sam
antha s., 80 Misc 2d 217, 220 [City Ct, City of AL
bany]).
Faced with a request to terminate placement, the
court is obligated to promptly determine whether a
hearing should be conducted and, if so, to conduct
Page 8
the hearing and determine whether continued place
ment serves the purposes of article lO (Family
Court Act § l064). If the court determines that con
tinued placement does not serve the purposes of art·
icle lO, the court is required to discharge the child
from the custody of the agency (Family Court Act §
l065 [b]; In re D.A., 18 Misc 3d 200, 207 [Fam Ct,
Onondaga County 2007]).
Considering these standards in light of the facts at
bar, the Court finds that "good cause" has been
shown. In the instant case, NYCCS removed Des
tiny, who was then two and one-half year old, from
the only home she had ever known without notice
or a hearing. That move was undertaken in spite of
the fact that the agency itself had concluded that the
home was loving, supportive, nurturing, safe and
stable and that Destiny had bonded with her kinship
foster parents who both loved her as if she were
their own daughter and who provided for all of her
needs. In the view of this Court, these facts are suf
ficient to satisfy the requirement for a showing of
"good cause."
Having found "good cause" to consider modifica
tion of the prior order extending placement, the
court must determine whether continued placement
serves the purpose of Family Court Act article 10.
The paramount purpose of article 10 is to "help pro
tect children from injury or mistreatment and to
help safeguard their physical, mental, and emotion
al well-being" (Family Court Act § 10 ll; Matter oj
Owen AA., 64 AD3d 953 [3d Dept 2009]; Matter oj
Charles DD. [Bernard EE.), 163 AD2d 744, 747
[3d Dept 1990]). Accordingly, the Court must de
termine whether Destiny's continued placement in
non-kinship foster care will serve to protect her
from "injury or mistreatment" and "safeguard her
physical, mental, and emotional well-being."*l0
The requisite authority to terminate placement and
directly place a child with a relative is also
provided by the statutory provisions governing per
manency hearings. Family Court Act § 1089 (d)
provides that during each permanency hearing, the
court shall evaluate the best interests and safety of
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Page 10 of 15
25 Misc.3d 1208(A)
25 Misc.3d 1208(A)
(Table, Text in WESTLA W), Unreported Disposition
(Cite as: 25 Mise.3d 1208(A), 901 N.Y.S.2d 898)
the child and determine whether the child would be
at risk of abuse or neglect if returned to the parent.
If not, the court may direct that the placement of
the child be terminated and that the child be re
turned to the parent. If the court concludes that the
child would be at risk if returned to the parent, it
has a number of options, including placing the child
in the custody of a fit and willing relative, until the
completion of the next permanency hearing and ap
proving or modifying the permanency goal (Family
Court Act § 1089 [d] [2] [ii]; Matter ofJessica F., 7
AD3d 708 [2d Dept 2004]). In considering whether
to place the child in the custody of a fit and willing
relative, the court must consider whether that is the
dispositional alternative most likely to serve the
child's"best interests and safety" (Family Court Act
§ 1089 [d]).FN5
In the instant case, the Court has evaluated the best
interests and safety of Destiny and determined that
she would be at risk of neglect if returned to re
spondent. To date, respondent has not successfully
completed a drug treatment program and remained
drug free. Indeed, after she was initially released
from prison, she violated her parole, a warrant was
issued for her arrest and she was eventually rearres
ted and again incarcerated. Thereafter, she contin
ued to test positive for cocaine and marijuana and
failed to cooperate with referrals to drug treatment
programs. As recently as February 2009, she left
the Veritas drug treatment program, and on May 3,
2009, she gave birth to a second baby who tested
positive for cocaine.
Based on the evidence adduced throughout these
proceedings, the Court concludes that Destiny's
best interests would be served by directly placing
her in the custody of the maternal aunt until the
next permanency hearing date (Family Court Act §
1089 [d][2][ii]; Matter of Jessica F., 7 AD3d 708
[2d Dept 2004]). In reaching this determination, the
Court has considered that Ms. D:s home is the only
home that Destiny has ever known. She lived there
for two and one half years. She bonded with Ms.
D., Mr. M., their children and the other members of
Page 9
the extended family. They nurtured and cared for
her and loved her like they loved their own chil
dren. Ms. D. made a life - time commitment to Des
tiny. She planned to adopt her in the event she was
freed for adoption. *11
The home was closely monitored throughout this
period by two different foster care agencies and
NYCCS. Presumably, it was recertified annually.
Monitoring involved a number of different case
workers, who all agreed that Destiny was loved,
that her needs were being met, and that, in the event
that Destiny could not return to her mother, she
should be adopted by her aunt.
The Court has also considered that Ms. D. carne
forward to care for her niece immediately after her
birth. She did not wait for years to pass and allow
the child to become bonded to other caretakers.FN6
In addition, when Destiny was removed from her
home, Ms. D. pursued every avenue to have her re
turned. She filed an Application for Judicial Action,
she flied for custody, she pursued her administrat
ive remedies and she voluntarily enrolled in a drug
treatment program. Although Ms. D. understood
that an award of custody under article 6 or articl(>,
10 would impose serious financial burdens on her
and her family, she never hesitated to pursue those
options.
The Court has considered the need for stability in
Destiny's life. Toward that end, the Court recog
nizes that placement or custody should be estab
lished on a long-term basis whenever possible since
long - term stability is presumably in the best in
terests of the child.fN7In the instant case, this
factor supports the return of Destiny to the home of
the maternal aunt where Destiny spent 30 months in
a safe, stable, loving and nuturing envirnrnent.
In addition, the court has considered the quality of
the horne environment and parental guidance that
the maternal aunt was able to provide, as well as
her ability to provide for Destiny's *12 physical,
emotional and developmental needs. The Court has
also considered the recommendations of the Law
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Page 11 of 15
25 Misc.3d 1208(A)
25 Misc.3d 1208(A)
(fable, Text in WESTLAW), Unreported Disposition
(Cite as: 25 Mise.3d 1208(A), 901 N.V.S.2d 898)
Guardian which strongly support the child being re
turned to the home of Ms. D. and her family.
Moreover, the Court has considered that custody
with the maternal aunt will provide Destiny with
the opportunity to continue to spend time with all
of the members of her extended family. In the
aunt's home, Destiny will grow up continuing to
know her cousins and her mother's siblings, her
mother and possibly her father, as well as numerous
other relatives. These other relatives are already
well known to Destiny and include her maternal
grandmother and grandfather both of whom had ini
tially expressed an interest in obtaining custody.
Finally, although the positive test results for Ms. D.
and Mr. M. are deeply troubling, the Court rejects
the assertion of NYCCS that they render the home
unsuitable. Although Ms. D. and Mr. M. both testi
fied that they used marijuana on only one occasion,
NYCCS believes otherwise. Nevertheless, the evid
ence they presented is insufficient to establish re
peated use.
The caseworker's testimony about her conversation
with the agency counselor does not establish that
Mr. M. tampered with his urine sample; nor does
the article downloaded from the Internet establish
that Ms. D. used marijuana after May 5, 2009.
These facts relate to technical and scientific matters
beyond the ken of the finder of fact and therefore
could have been established, if at all, by expert
testimony (Weiner v Lenox Hill Hasp., 88 NY2d
784 (1996]).
The fact that hearsay was admissible into evidence
during this proceeding (seeFamily Court Act §
1046 [cD, does not overcome the obstacle presented
by NYCCS's attempt to introduce out of court state
ments of opinion provided by an agency counselor.
Even if his statements are admissible, they are en
titled to almost no weight. Since the agency coun
selor did not testify and was not subject to cross
examination, it remains unclear what facts he relied
on in forming his opinion; whether he was qualified
to render such an opinion; FNB whether his opinion
Page 10
was based on a reasonable degree of certainty;
whether there were other possible explanations for
the high water content of Mr. M.'s urine, etc.
NYCCS bore the burden of establishing the quali
fications of any expert (Catanese v Furman, 9
AD3d 863 [4th Dept 2004] [where plaintiffs failed
to establish the qualifications of their expert, the
trial court properly determined that the affinnation
was not competent evidenceD, which here, they
never attempted to do.
The same is true about the article down-loaded
from the Internet. Even if the article is admissible it
is entitled to no weight. Evidence about the length
of time that marijuana could have remained detect
able in Ms. D.'s urine could have been provided by
an expert. The Court cannot, however, determine
whether the author of an article who never appeared
in court, who never met Ms. D., who is not a med
ical doctor and who has no familiarity with the
case, is an expert. Furthermore, even if he were an
expert he would not be permitted to reiterate the
results of scientific experiments *13 conducted by
others not present in court based on material that
was never introduced. Experts are not a conduit for
the introduction of inadmissible hearsay.FN9
Finally, even if the author of the Internet article
were an expert and even if the material he relied
upon was admissible, the article fails to support
NYCCS's contention that Ms. D. used marijuana on
more than one occasion. To the contrary, the article
indicates that many factors influence how long
marijuana remains in an individual's system and
that it can result in a positive test result for up to 67
days.
The Court concludes that a direct placement of
Destiny in the home of the maternal aunt is a more
appropriate disposition than a fmal order of cus
tody. Respondent mother continues to need ser
vices. Her parental rights have not been terminated
and it is unclear whether the agency intends to pro
ceed with the previously filed termination petition
concerning Destiny, which they may do even if
Destiny is directly placed with the maternal aunt
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Page 12 of 15
25 Misc.3d 1208(A)
25 Misc.3d 1208(A)
(Table, Text in WESTLA W), Unreported Disposition
(Cite as: 25 Mise.3d 1208(A), 901 N.Y.S.2d 898)
(see Matter of Dale P., 84 NY2d 72 [1994]).
Moreover, since extraordinary circumstances were
neither pled nor proved, a final order of custody
could not be entered at this point in the proceeding
(Family Court Act §1055 - b [aJ; Matter of Jac
queline Sharon L. v Pamela 26 AD3d 250 [1st
Dept 2006]). Finally, a direct placement will allow
NYCCS to continue to monitor the home since Des
tiny cannot be directly placed in the custody of the
maternal aunt, unless she consents to the jurisdic
tion of the court, something that she has already
agreed to (Family Court Act § 1055 [a] [iiJ).
2.Janea's Placement shall not be Modified Prior to
the Dispositional Hearing
Based on the evidence adduced during the hearing,
the Court denies the maternal aunt's petition for
custody of Janea with leave to renew during the dis
positional hearing on Janea's case (NN-O 12744/09).
In certain respects, Destiny and Janea are not simil
arly situated. Although Destiny has already closely
bonded with the maternal aunt and her family,
Janea has not. In addition, although long tenn sta
bility for Destiny requires that she be returned to
the horne of the maternal aunt, the same is not ne
cessarily true for Janea. The goal for Destiny is ad
option while the goal for Janea remains "return to
parent." Respondent is currently participating in an
in - patient drug treatment program and is re
portedly doing well. Her attorney has indicated that
she intends to seek to have Janea returned to her at
the dispositional hearing. In order to avoid the pos
sibility of destabilizing Janea and moving her re
peatedly, the decision about whether to terminate
placement and transfer her to a different home, will
be made after a dispositional hearing.
In the meantime, Janea will continue to have week
end visitation at the home of the maternal aunt.
These visits will enable her to spend time with her
mother, her aunt and her sister, as well as *14 other
members of her extended family.
Nevertheless, it bears noting that NYCCS' remain
ing contentions are without merit. First, the asser-
Page 11
tion that the maternal aunt is incapable of providing
for Janea's special needs since she was born with a
positive toxicolgy to cocaine, is belied by the fact
that the aunt took care of Destiny under the exacl
same circumstances. Second, the suggestion that
the aunt has failed to express adequate interests in
Janea is rejected. The fact that the aunt is more
closely bonded to Destiny is not surprising since
Destiny was placed in her home shortly after birth
and spent the first 30 months of her life there.
Third, the claim that respondent mother does not
want Janea placed with the maternal aunt is simply
incorrect. The respondent has repeatedly stated in
open court that if the children cannot be returned to
her, she wants both of them to live with her sister.
The fact that respondent has expressed occasional
ambivalence about her sister is not surprising given
the complex circumstances in which these two sis
ters now fmd themselves. Fourth, since virtually no
information has been provided about the non··
kinship foster parents or the care they have
provided to the children, the Court is unable to a(
cept the assertion that they are in a better position
to provide for both of the children's needs. Fifth, al
though NYCCS emphasizes the stability and com
panionship to be gained by keeping the siblings 10
gether in the non-kinship foster home, that option
also exists in the home of the maternal aunt. Sixth,
the aunt's inconsistent attendance at the drug treat
ment program has been adequately explained. She
enrolled voluntarily. She was not court - ordered to
attend. In addition, she was required to search for a
full - time job or risk losing her benefits. Finally,
the maternal aunt was required to take care of hrr
other children.
Accordingly, it is
ORDERED, that the remand of the child Destiny i~
terminated and she is directly placed with the ma,
ternal aunt under the supervision of NYCCS; and it
is further
ORDERED, that the maternal aunt shall undergo im
evaluation to determine whether or not she require,';
treatment for a substance abuse problem and com
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25 Misc.3d 1208(A)
25 Misc.3d 1208(A)
(Table, Text in WESTLAW), Unreported Disposition
(Cite as: 25 Mise.3d 1208(A), 901 N.Y.S.2d 898)
ply with any recommendations made as a result of
that evaluation; and it is further
ORDERED, that the maternal aunt shall undergo a
psychiatric evaluation to determine whether she re
quires treatment for anxiety or depression and com
ply with any recommendations made as a result of
that evaluation; and it is further
ORDERED, that NYCCS shall make immediate re
ferrals for both evaluations and, if necessary assist
the maternal aunt in reinstating her health insurance
coverage; and it is further
ORDERED, that the agency shall report in writing
within 90 days whether it intends to proceed on the
petition to terminate respondent's parental rights
and whether it plans to seek a goal change for the
child Destiny; and it is further
ORDERED, that the remaining prOVISIOns of the
Permanency Hearing order shall be contained in a
separate order that shall be issued within three days.
ENTER:
.-::-::=~-=-=:--___EMIL Y M.
OLSHANSKY, J.F.C.
FOOTNOTES
FN I. On May 24, 2007, the Court expli
citly directed that the remand be restricted
to the home of the maternal aunt. Never
theless, the Court failed to include that lan
guage in the dispositional order or the frrst
permanency hearing order. Referee Yellen,
who conducted the next three permanency
hearings, also directed a restrictive remand
after the second and third permanency
hearings; however, she failed to include
that language in the fourth permanency
hearing order.
FN2.FCA § 1028-a provides that after a re-
Page 13 of 15
Page 12
lative files an application to be approved as
a foster parent, the court shall hold a hear
ing to determine whether the child should
be placed with that relative in foster care
if: (i) the relative is related within the third
degree of consanguinity; (ii) the child has
been temporarily removed and placed in
non- relative foster care; (iii) the relative
indicates a willingness to become the
foster parent and has not refused previ
ously to be considered as a foster parent or
custodian; (iv) the Commissioner has re
fused to place the child with the relative
for reasons other than the relative's failure
to qualify as a foster parent pursuant to the
regulations of the Office of Children and
Family Services; and (v) the application is
brought within six months from the date
the relative received notice that the child
was being removed. ill the instant case,
NYCCS asserted that FCA § 1028-a was
inapplicable since the Commissioner's fail
ure .to place Janea in the aunt's home was
not for "reasons other than the relative's
failure to qualify as a foster parent pursu
ant to the regulations of the Office of Chil
dren and Family Services." The Commis
sioner failed to place Janea in the aunt's
home because although they had certified
her as a foster parent, they subsequently
revoked her certification.
FN3. The 2009 ORT concerns the report
about the recent positive marijuana tests
and the 2006 and 2007 ORTs concerning
Ms. D.'s older son Daequan (date of birth
December 5, 1990) who was not attending
school regularly.
FN4. Not marked into evidence but also
contained in the court's file are the Protest
ant Board of Guardians report dated
December 19, 2007; the New York Found
ling report dated June 10, 2009; and the
New York Foundling report dated June 29,
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25 Misc.3d 1208(A}
25 Misc.3d 1208(A}
(Table, Text in WESTLAW), Unreported Disposition
(Cite as: 25 Mise.3d 1208(A), 901 N. Y.S.2d 898)
2009.
FNS.See also In re G.B., 7 Misc 3d 1022
[A] [Fam Ct, Monroe County, 2005]
[decision to transfer children from foster
care to great aunt and grandmother was
based on the best interests of the children];
Matter of D.A., 18 Misc 3d 200 [Fam Ct,
Onondaga County, 2005] [petition to
modify dispositional order to transfer child
from foster care to aunt denied based on
the best interests of the child]; Matter of
Chauncey W, 185 AD2d 675 [4th Dept
1992] [the best interests of the child is de
terminative when the question is whether
to transfer a neglected child to another
placement or to family members]; Deborah
E.C. v Shawn K., 63 AD3d 1724 [4th Dept
2009] [the standard to be applied when
considering a petition for custody filed to
modify an order of placement entered in an
article 10 proceeding is in the best interests
of the child]; Alfano v Schulthis-Devoe, 49
AD3d 635 [2d Dept 2008] [Family Court's
determination had sound and substantial
basis since the best interests of the child
were served by allowing him to remain in
custody of petitioners, in whose temporary
custody he was placed shortly after birth];
see also In re Dominick S, 289 AD2d II
[Ist Dept 2001] [no basis to modify a
placement decision and transfer a child
where the original decision that the child
should reside with his great-grandmother
was the best interests of the child and there
was no change in circumstances]; Matter
of Sarah S., 9 Misc 3d 1109A [Fam Court,
Monroe County, 2005]; see also Harriet U
v Sullivan County Dept. of Social Services,
224 AD2d 910, 911 [3d Dept 1996] [in
making a determination of placement,
Family Court must consider the child's best
interest]; In re Car/ena B., 61 AD3d 752
[2d Dept 2009] [in fashioning a disposi
tional order the applicable standard is best
Page 14 of 15
Page 13
interestsD.
FN6.See e.g., In re Amber B., 50 AD3d
1028 [2d Dept 2008] [Family Court prop
erly denied maternal grandmothers appJic··
ation for custody and determined that the
children's best interests required continu
ing custody with ACS so that they could be
adopted by the foster parents since the
children had been in same foster home
since 2002, they had bonded with their
foster parents; the foster parents were
providing for children's special needs, and
the children wished to remain with their
foster parents; although the grandmother
was not unfit, she had no relationship with
the children during first three years of their
placement]; Matthew E. v Erie County
Dept. of Social Services, 41 AD3d 1240
[4th Dept 2007] [transfer of the child to the
grandfather was not in the best interests of
the child where the child entered fost(T
care because the grandfather refused to
take custody, he had little contact with her
thereafter with the exception of one hour
per week of supervised visitation and he
did not petition for custody until months
later, when it became evident that the
child's mother would not regain custody]).
FN7. The importance of maintaining con
tinuity is recognized in NYCCS's own reg
ulations (see e.g., 18 NYCRR § 430.11 and
18 NYCRR § 443.6 [aD. The same policy
considerations apply in the context of cus
tody proceedings. Accordingly, it is well
settled that a court, in deciding a modifica
tion petition, must consider the need for
stability in child's life and that custody
should be established on a long-term basis
whenever possible (Dintruff v McGreel~Y,
34 NY2d 887, 888 [1974];Miller v Lee,
225 AD2d 778 [2d Dept 1996D. Toward
that end, priority is accorded to the party
who was first awarded custody by court 01
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Page 15 of 15
25 Mise.3d 1208(A)
25 Mise.3d 1208(A)
(Table, Text in WESTLAW), Unreported Disposition
(Cite as: 2S Mise.3d 1208(A), 90] N.Y.S.2d 898)
der, stipulation or voluntary agreement (
Keating v Keating, 147 AD2d 675 [2d
Dept 1989]; Patsy Me. v Lorna w.e., 165
AD2d 813 [2d Dept 1990]; Monzon v
Zaikowski, 21 AD3d 375 [2d Dept 2005];
Salvati v Salvati, 242 AD2d 538 [2d Dept
1997]). A change in custody will be
ordered if, after consideration of all of the
relevant factors, the court determines that
there has been a change in circumstances
and that the totality of the circumstances
warrant a change in the child's best in
terests (Eschbach v Eschbach,56 NY2d
167 [1982];DeCaprio v DeCaprio, 219
AD2d 575 [2d Dept 1995]).
FN8. It is within the discretion of the trial
court to determine whether or not a witness
is qualified to testify as an expert on a spe
cific subject. The trial court has the initial
responsibility of determining whether the
witness has the necessary qualifications to
be regarded as an expert. In order to quali
fy as an expert the witness must possess
the requisite skill, training, education,
knowledge, or experience from which it
can be assumed that the opinion rendered
is reliable. To be qualified as an expert for
the purpose of giving an expert opinion,
the witness must have some knowledge or
experience in relation to the particular sub
ject on which the opinion is to be offered.
Unless the witness is qualified as an ex
pert, their opinion is not admissible as ex
pert opinion.
FN9. It is well settled that to be admiss
ible, opinion evidence must be based on
one of the following: first, personal know
ledge of the facts upon which the opinion
rests; second, facts and material in evid
ence, real or testimonial; third, material not
in evidence provided that the out-of-court
material is derived from a witness subject
to cross-examination; and fourth, material
Page 14
not in evidence provided the out-of-court
material is of the kind accepted in the pro
fession as a basis in forming an opinion
and the out-of-court material is accompan
ied by evidence establishing its reliability.
Expert opinion, based on unreliable sec
ondary evidence, is nothing more than con
jecture if the only factual foundation, as in
this case, is someone else's interpretation
of what an unproduced experimental result
purportedly shows (Wagman v Bradshm1J,
292 AD2d 84, 86 -87 [2d Dept 2002]).
Copr. (C) 2012, Secretary of State, State of New
York
N.Y.Fam.Ct.2009.
Matter of D. Children v Geneva D.
25 Misc.3d 1208(A), 901 N. Y.S.2d 89890 I
N.Y.S.2d 898 (Table)(Table, Text in WESTLAW),
Unreported Disposition6022009 WL
31632179992009 N.Y. Slip Op. 52002(U)4603, 901
N.Y.S.2d 898901 N.Y.S.2d 898 (Table)(TabJe, Text
in WESTLAW), Unreported Disposition6022009
WL 31632179992009 N.Y. Slip Op.
52002(U)4603, 901 N.Y.S.2d 898901 N.Y.S.2d 898
(Table)(Table, Text in WESTLA W), Unreported
Disposition6022009 WL 31632179992009 N.Y.
Slip Op. 52002(U)4603
END OF DOCUMENT
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Page 2 of 7
Westiaw.
Page I
Not Reported in N.E.2d, 2004 WL 1879094 (Ohio App. 5 Dist.), 2004 -Ohio- 4436
(Cite as: 2004 WL 1879094 (Ohio App. 5 Dist.))
~
CHECK OHIO SUPREME COURT RULES FOR
REPORTING OF OPINIONS AND WEIGHT OF
LEGAL AUTHORITY.
Court of Appeals of Ohio,
Fifth District, Stark County.
William HAREN, Plaintiff-Appellant
v.
SUPERIOR DAIRY, INC., et ai, Defendant-Ap
pellee.
No. 2003-CA-0033 1.
Decided Aug. 17,2004.
" Background: Former employee brought action
against employer claiming promissory estoppel,
breach of implied contract, and wrongful discharge
in violation of public policy. The Court of Common
Pleas, Stark County, No. 2002CV01038, granted
summary judgment for employer, and employee ap
pealed.
Holdings: The Court of Appeals, Gwin, PJ., held
that:
(I) employee's claim for wrongful discharge in vi
olation of public policy was preempted by collect
ive bargaining agreement (CBA), and
(2) employee's claims for breach of implied con
tract and promissory estoppel were preempted by
CBA.
Affirmed.
West Headnotes
[I) Labor and Employment 231H C=757
231H Labor and Employment
231HVIII Adverse Employment Action
23IHVlII(A) In General
231 Hk757 k. Preemption. Most Cited
States 360 ~18.46
360 States
3601 Political Status and Relations
3601(B) Federal Supremacy; Preemption
360k18.45 Labor and Employment
360k18.46 k. In general. Most Cited
Cases
Former employee's claim against employer for
wrongful discharge in violation of public policy
was preempted by collective bargaining agreement
(CBA), providing that grievance procedure was
sole means of settling disputes; although employee
argued state law and state public policy governed
claim, employee's actions were not protected by
whistleblower statute as employee failed to indicate
what employer's safety violations were and employ
ee did not allege that he actually "blew that
whistle" by reporting safety hazards to outside au
thority, and Court of Appeal would decline to ex
tend public policy regarding anti-retaliation dis
charges to extent required to cover employee's gen
eral claim. R.C. § 4313.52.
(2) Estoppel 156 €=-85
156 Estoppel
1561II Equitable Estoppel
156IlI(B) Grounds of Estoppel
l56k82 Representations
156k85 k. Future events; promissory
estoppel. Most Cited Cases
Labor and Employment 231H C=757
231H Labor and Employment
231 HVIII Adverse Employment Action
231 HVIII(A) In General
231Hk757 k. Preemption. Most Cited
States 360 ~18.15
360 States
3601 Political Status and Relations
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Page 3 of7
Page 2
Not Reported in N.E.2d, 2004 WL 1879094 (Ohio App. 5 Dist.), 2004 -Ohio- 4436
(Cite as: 2004 WL 1879094 (Ohio App. 5 Dist.»
360I(B) Federal Supremacy; Preemption
360k 18.15 k. Particular cases, preemption
or supersession. Most Cited Cases
States 360 cC=IS.46
360 States
3601 Political Status and Relations
3601(B) Federal Supremacy; Preemption
360k18.45 Labor and Employment
360k18.46 k. In general. Most Cited
Cases
Former employee's claims against employer for
breach of implied contract and promissory estoppel
were preempted by collective bargaining agreement
(CBA), providing that grievance procedure was
sole means of settling disputes and that employer
could not, without consent of union, make verbal or
written agreement with employee that conflicted
with CBA; law did not permit implied covenants in
contract in relation to any matter specifically
covered by written terms and requirement of just
cause for discharge would be inferred in CBA
which did not contain contrary express provision.
Civil appeal from the Stark County Court of Com
mon Pleas, Case NO.2002CVOI038.Dennis R.
Thompson, Christy B. Bishop, Akron, OH, for
plaintiff-appellant.
Harley M. Kastner Akron, OH, Julie Geiser, North
Canton, OH, for defendant-appellee.
GWIN, P.l.
*1 {~ I} Plaintiff William Haren appeals a
summary judgment of the Court of Common Pleas
of Stark County, Ohio, which dismissed his com
plaint against defendant Superior Diary, Inc. Appel
lant assigns three errors to the trial court:
{~ 2} "THE TRIAL COURT ERRED BY
FINDING THAT PLAINTIFF-APPELLANTS
PROMISSORY ESTOPPEL AND BREACH OF
IMPLIED CONTRACT CLAIMS WERE PRE
EMPTED BY THE COLLECTIVE BARGAINING
AGREEMENT.
{~ 3} "THE TRIAL COURT ERRED BY
FINDING THA T PLAINTIFF-APPELLANT
COULD NOT MAINTAIN A WRONGFUL DrS·
CHARGE CLAIM BECAUSE HE WAS SUBJECT
TO A COLLECTIVE BARGAINING AGREE
MENT.
{~ 4} "THE TRIAL COURT ERRED IN
FINDING THAT THE PROMISES MADE BY
THE COMPANY TO HAREN REQUIRED fN
TERPRETATION OF THE CBA AND WERE
PRE-EMPTED ."
{~ 5} Appellant has not complied with
Loc.App. R. 9, and has not included a separate
statement declaring whether the judgment is inap
propriate as a matter of law on the undisputed facts
or that there is a genuine dispute as to material
facts, along with a separate statement of the speeif
ic facts or issues claimed to be material and genu·
inely disputed. Additionally, appellant has not at
tached a copy of the judgment entry appealed from.
In his brief, appellant argues the trial court did !lol
examine all the appropriate material and prior bricf~
ings, and failed to view the evidence in light most
favorable to the non-moving party. Appellant also
challenges the trial court's determination that Su
perior's "just cause" and progressive discipline
policies are implied into the collective bargaining
agreement.
{~ 6} The trial court recited the facts in ils
amended judgment entry filed September II, 20m.
The court found appellant was a member of the
Teamster's Local Union 113 throughout his elll
ployment with Superior, beginning May 30, 1980
and ending on luly 22, 1998. Appellant was an
hourly compensated worker who worked in the
maintenance department, and was covered by It
series of Collective Bargaining Agreements. Super
ior also employs hourly workers who are not union
ized or covered by Collective Bargaining Agree
ments.
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3
Page 4 of 7
Not Reported in N.E.2d, 2004 WL 1879094 (Ohio App. 5 Dist.), 2004 -Ohio- 4436
(Cite as: 2004WL 1879094 (Ohio App. 5 Dist.»
{, 7} Appellant alleges he suffered threats and
harassment, and was fmaUy discharged in retali
ation for his documentation and reporting of safety
violations. At one point during his employment, ap
pellant was a member of the Superior Dairy,
Inc./Teamster's Local 113 Joint Safety Committee.
The Union opted to dissolve the joint safety com
mittee, which consisted of three persons, in favor of
a much larger safety program. At the time Superior
terminated him, appellant was not a member of the
Committee, and had not been for over one and one
half years.
{, 8} The trial court found appellant claims he
was discharged in violation of public policy in re
taliation for his safety-related activities. By con
trast, Superior claims appellant was discharged
after he had received a series of ten letters warning
him of inappropriate conduct during his employ
ment, including badgering, pestering, and threaten
ing his fellow union workers.
*2 {~ 9} Appellant filed a grievance pursuant
to the Collective Bargaining Agreement claiming
unjust termination. Because appellant had clashed
with his local union representatives, outside coun
sel represented him with regard to the grievance.
The matter was set to be heard by a Federal arbit
rator, but appellant dismissed his grievance and
filed suit instead.
{, 10} Originally appellant filed SUlt III the
United States District Court for the Northern Dis
trict of Ohio, pleading a Federal Section 30 I claim,
an Ohio Whistleblower claim, and intentional in
fliction of emotional distress. The Federal court dis
missed the federal claim only, but the United States
Court of Appeals for the Sixth Circuit reversed the
decision in appellant's favor, and returned the mat
ter to district court. Appellant subsequently dis
missed the action in Federal Court, to pursue the
matter in Stark County Common Pleas.
{1 II} Civ.R. 56 provides a trial court may
render a summary judgment only if it appears there
is no genuine issue as to any material fact, and the
moving party is entitled to judgment as a matter of
law. The test is whether reasonable minds can come
to but one conclusion, that conclusion being ad
verse to the non-moving party. A trial court should
not enter summary judgment if reasonable minds
could draw different conclusions from undisputed
facts, Hounshell v. American States Insurance
Company (1981), 67 Ohio St.2d 427, 424 N.E.2d
311. A trial court may not resolve ambiguities in
the evidence presented. Inland Refuse Transfer
Company v. Browning-Ferris Industries of Ohio,
Inc. (1984),15 Ohio SUd 321, 474 N.E.2d 271.
{1 12} This court reviews summary judgments
by the same standard as the trial court. Smiddy v.
The Wedding Party. Inc. (1987), 30 Ohio SUd 35,
506 N.E.2d 212.
{, 13} The party moving for summary judg
ment bears the initial burden of informing the court
the basis for its motion, and identifying the portions
of the record which demonstrate there is no genuine
issue of material fact. The moving party may not
make a conclusory assertion that the non-moving
party has no evidence to prove its case. Dresher v.
Burt (1996), 75 Ohio SUd 280, 662 N.E.2d 264.
Any evidentiary material submitted by the moving
party may be relied upon by the non-moving party
in support of the latter's argument there is a genuine
issue of material fact. AAAA Enterprises. Inc. v.
Riverplace (1990), 50 Ohio SUd 157, 553 N.E.2d
597.
{1 14} If the moving party has satisfied its ini
tial burden, the non-moving party has a reciprocal
burden to set forth specific facts showing there is a
genuine issue for trial, and if the non-movant does
not so respond, summary judgment, if appropriate,
shall be entered. Id In determining whether a trial
able issue of fact exists so as to preclude summa!)'
judgment, a court should determine whether a reas
onable jury could find the evidence satisfies the
evidentiary standard required at trial. Only then
could a genuine issue of material fact exist.
Myocare Nursing Home, Inc. v. Fifth Third Bank,
98 Ohio SUd 545, 2003-0hio-2287, 787 N.E.2d
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Page 5 of7
Page 4
Not Reported in N.E.2d, 2004 WL 1879094 (Ohio App. 5 Dist.), 2004 -Ohio- 4436
(Cite as: 2004 WL 1879094 (Ohio App. 5 Dist.»)
1217.
*3 {~ 15} Appellant's complaint sets forth sev
en causes of action: 1. Intentional infliction of emo
tional distress; 2. Negligent infliction of emotional
distress; 3. Civil conspiracy; 4. Whistle blower pro
tection under R.C. 4113.52; 5. Breach of implied
contract; 6. Wrongful discharge against public
policy; and 7. Promissory EstoppeL Count three
and Count four had been previously dismissed by
the court. Appellant does not dispute the court's rul
ing on these counts, nor as to the intentional and
negligent infliction of emotional distress claims, so
before us, only the claims of promissory estoppel,
implied contract, and public policy discharge re
main for our review.
{, 16} In his fIrst assignment of error, appel
lant argues the trial court improperly found his
promissory estoppel and breach of implied contract
claims were pre-empted by the Collective Bargain
ing Agreement.
{~ 17} In Hawaiian Airlines. Inc. v. Norris
(1994), 512 U.S. 246, 114 S.Ct. 2239, 129 L.Ed.2d
203, the United States Supreme Court found the
question of whether Federal law will pre-empt State
law is a question of Congressional intent. The Fed
eral statute will be read to supersede a State's
powers only if there is a clear and manifest purpose
of Congress. Hawaiian Airlines at 252, citations de
leted. In the Hawaiian Airlines case, an aircraft
mechanic was fIred for insubordination, but the
mechanic felt he was disciplined for refusing to
perform work in violation of health or safety laws.
Originally, the mechanic appealed his termination
through the grievance procedures of the Collective
Bargaining Act, but did not pursue it through the
entire grievance procedure. Instead, the mechanic
filed suit for wrongful discharge.
{~ I8} The Supreme Court found the existence
of a potential Collective Bargaining Agreement
based remedy does not necessarily deprive an em
ployee of independent remedies available under
State law. Hawaiian Airlines at 261, citations de
leted. Certain factual questions about an employee's
conduct or an employer's conduct and motives
really do not require a court to interpret any term of
the Collective Bargaining Agreement. Id The Su
preme Court found there may be instances in which
the National Labor Relations Act preempts State
law on the basis of the subject matter of the law in
question, but this is merely to insure that Federal
law will be the basis for interpreting the language
in the Collective Bargaining Agreement. Federal
law says nothing about the substitutive rights a
State may provide to workers when adjudication of
those rights does not depend upon the interpretation
of a Collective Bargaining Agreement. The Su
preme Court explained if dispute resolution pursu
ant to a Collective Bargaining Agreement on one
hand and State law on the other would require ad
dressing precisely the same set of facts, as long as
the State law claim can be resolved without inter
preting the agreement itself, the claim is independ
ent of the agreement for preemption purposes.
*4 [I] {~ 19} Appellant asserts State law and
State public policy govern his claim of wrongful
discharge and are not preempted by the Collective
Bargaining Agreement and Federal law. This is
only true if the State has chosen to enact a law or
adopt a public policy to provide protection for its
citizens. To determine how Ohio addresses the
problem, we must tum to the recent case of
Coolidge v. Riverdale Local School District, 100
Ohio St.3d 141, 2003-0hio-5357, 797 N.E.2d 6l.
In Coolidge. the Ohio Supreme Court reviewed a
situation where a school teacher's continuing con
tract was terminated because she had exhausted all
available paid leave, while she was recovering from
a work-related assault by one of her students. The
teacher was receiving temporary total benefIts from
the Workers' Compensation Fund, and was covered
by a Collective Bargaining Agreement.
{~ 20} The Supreme Court began by noting a
claim of wrongful discharge in violation of public
policy has traditionally been seen as an exception to
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Not Reported in N.E.2d, 2004 WL 1879094 (Ohio App. 5 Dist.), 2004 -Ohio- 4436
(Cite as: 2004 WL 1879094 (Ohio App. 5 Dist.»)
the Employment at Will Doctrine, and is seldom
applied to employees who work under a Collective
Bargaining Agreement. The Supreme Court found
Ohio law affords school teachers protection against
termination without good and just cause, and we
must not construe the statute to provide less protec
tion against wrongful discharges than common law
would generally afford to an "at will" employee.
The Supreme Court concluded protection from
wrongful discharge in violation of public policy or
statute should apply to employees covered by a
Collective Bargaining Agreement as well as to "at
will" employees. In the Coolidge case, the Supreme
Court found the basic purpose of any anti-re
taliation statute is to enable employees to exercise
their rights without fear of retribution from their
employers. The Workers' Compensation Act pro
hibits an employer from firing a worker because he
or she has filed a Workers' Compensation claim.
The court found an employer should not be permit
ted to fire an employee solely because of absentee
ism or physical incapacity during a period of tem
porary total disability, because this forces the em
ployee to choose between the enjoyment of benefits
to which she is entitled, or loss of employment.
{~ 21} Appellant argues his firing was in viola
tion of public policy. Appellant urges he has an in
dependent State granted right to be free from retali
ation for reporting safety violations in the work
place. Ohio has codified the so-called Whis
tleblowers statute in R.C. 4313.52.
{~ 22} In Contreras v. Ferro Corporation
(1995), 73 Ohio St.3d 244, 652 N.E.2d 940, the
Ohio Supreme Court explained how the Ohio Whis
tleblowers statute works. The statute addresses the
situation where an employee in the course of his or
her employment becomes aware of a violation of a
State or Federal statute or any ordinance or regula
tion of a political subdivision that the employer has
the authority to correct, and the employee reason
ably believes the violation is a criminal offense or
is likely to cause an imminent risk of physical harm
or hazard to public health and safety or is a felony.
Under such circumstances, the employee must or
ally notify his or her supervisor or another respons··
ible officer of the violation, and then subsequently
file with that person a written report providing suf
ficient detail to identifY and describe the violation.
If these requirements are satisfied and the employer
does not correct the violation or make a good-faith
effort to correct the violation within 24 hours after
the oral notification or receipt of the written report,
whichever is earlier, then the employee may file a
written report with the prosecuting authority of the
county or municipal corporation where the viola
tion occurred, or with some other appropriate per
son specified in the statute. The Contreras court
held an employee must strictly comply with the
Whistleblower statute to be afforded protection.
*5 {123} Turning to the case before us, appel
lant has alleged numerous safety issues and con
cerns which he reported to his employer. He alleges
after he began reporting the safety violations, Su
perior retaliated by leveling false accusations of
misconduct and appellant flied a grievance regard
ing the on-going harassment.
{~ 24} Appellant does not indicate what the
safety violations were, and has not explained how
his reporting to his employer complied with the
statute with regard to the requirements of oral and
written notice. Most significantly, however, is the
lack of any allegation appellant actually "blew the
whistle" by reporting any safety hazards to an out
side authority. We fmd appellant's actions would
not be protected by Ohio's Whistleblower statute.
{~ 25} Now we must turn to the question of
whether the public policy as exemplified by the
Whistleblower statute should offer protection to ap
pellant in this situation. The Coolidge court fOlUld
the public policy exception for wrongful discharge
and retaliation for flling a Workers' Compensation
claim should be extended to protect workers who
are receiving benefits on an on-going basis. Here,
we find the Ohio Whistleblower statute protects
workers whose employers retaliate against them for
reporting workplace problems to outside authorit
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ies, see Grove v. FreshMark. Inc. 156 Ohio App.3d
620, 2004-0hio-1728, 808 N.E.2d 416 at paragraph
19 and paragraph 24.
{~ 26} We decline to extend public policy re
garding anti-retaliation discharges to this extent.
Appellant has proposed we adopt a very vague pub
lic policy of "employee safety" and
"anti-retaliation" concepts too nebulous to provide
guidance for courts, employers, or employees to in
terpret. Appellant makes only general assertions of
retaliation and has not placed in the record any spe
cific safety violations allegedly present at Superior.
[2] {~ 27} We fmd the' trial court correctly
found appellant's promissory estoppel and breach of
implied contract claims were preempted by the Col
lective Bargaining Agreement.
{~ 28} Turning now to the Collective Bargain
ing Agreement, the trial court quoted the pertinent
part of the Collective Bargaining Agreement in ef
fect at the time of appellant's discharge. Item 7 of
the contract applies to termination of employment,
and requires actions to recover must be commenced
within five working days after the termination of
the employment. It provides the employer shall not
make any verbal or written agreement with an em
ployee that will conflict with the provisions of the
agreement without the consent of the union.
{~ 29} Item 9 of the Collective Bargaining
Agreement provides a grievance procedure which
shall be the sole means of settling differences, dis
putes, and controversies. Item 10 provides for bind
ing final arbitration, again as the sole method of
settling disputes.
{~ 30} We find the above precludes appellant's
actions for implied contract and promissory estop
pel because Ohio law does not permit implied cov
enants in a contract in relation to any matter spe
ci fically covered by the written terms. Hamilton
Insurance v. Nationwide Insurance Company
(1999),86 Ohio St.3d 270, 714 N.E.2d 898.
*6 {~ 31} As appellee argues, we fmd just
cause requirements are inferred in modern day Col
lective Bargaining Agreements which do not con
tain a contrary express provision, see SFIC Proper
ties, Inc. v. Machinist Lodge 94, 103 F.3d 923 (9th
Cir.1996).
{~ 32} We find appellant cannot maintain im
plied contract or promissory estoppel claims under
the terms of the Collective Bargaining Agreement
which governed his employment with Superior.
{~ 33} We fmd the trial court did not err in
fmding appellant's claims against Superior were
pre-empted by the Collective Bargaining Agree
ment. Accordingly, each of appellant's assignments
of error are overruled.
{~ 34} For the foregoing reasons, the judgment
of the Court of Common Pleas of Stark County,
Ohio, is affmned.
GWIN, PJ., HOFFMAN, and BOGGfNS, J., con
cur.
Ohio App. 5 Dist.,2004.
Haren v. Superior Dairy, Inc.
Not Reported in N.E.2d, 2004 WL 1879094 (Ohio
App. 5 Dist.), 2004 -Ohio- 4436
END OF DOCUMENT
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