Matter of Middleton v. New York City Tr. Auth.

Matter of Middleton v New York City Tr. Auth. 2024 NY Slip Op 33533(U) October 1, 2024 Supreme Court, New York County Docket Number: Index No. 656352/2023 Judge: Shahabuddeen Abid Ally Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official publication.

FILED: NEW YORK COUNTY CLERK 10/01/2024 04:48 PM INDEX This NO. 656352/2023 Amended Decision and Order, which corrects a typo NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 10/01/2024 on page 23, recalls and replaces the Decision and SUPREME COURT OF THE STATE OF NEW YORK Order dated 9/30/24 and entered in NYSCEF on the NEW YORK COUNTY same date as Doc. 31.

PRESENT: HON. SHAHABUDDEEN ABID ALLY PART 16TR Justice In the Matter of the Application of INDEX NO. 656352/2023 MOTION DATE 4/26/2024 CASHAY S. MIDDLETON and TRANSPORT WORKERS MOTION SEQ. NO. 001 UNION OF AMERICA LOCAL 100, Petitioners, For an Order Confirming an Arbitration Award Under Article 75 of the CPLR, AMENDED DECISION & ORDER -against- NEW YORK CITY TRANSIT AUTHORITY, Respondent.

The following e-filed documents, listed by NYSCEF document number, were read on this motion (Seq. No. 1) to/for ARTICLE 75 (CONFIRM AWARD): 1-12, 14-27, 29-30

Petitioner brings this special proceeding pursuant to CPLR Article 75 for an order con- firming an arbitration Opinion and Award, dated November 20, 2023, directing respondent NEW YORK CITY TRANSIT AUTHORITY (“NYCTA”) to reinstate petitioner CASHAY S. MIDDLE- TON (“Middleton”) to her position as a bus operator for NYCTA. Middleton commenced the proceeding by Verified Petition and Order to Show Cause filed on December 15, 2023. The Court signed the Order to Show Cause on January 9, 2024, and it was entered on January 18, 2024.

NYCTA thereafter filed a Verified Cross-Petition and Notice Cross-Petition on February 6, 2024, seeking an order, pursuant to Article 75, vacating the arbitration award. Upon the parties’ filings, for the reasons discussed below, Middleton’s Verified Petition is DENIED, and NYCTA’s Verified Cross-Petition is GRANTED.

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Pursuant to the Code of Federal Regulations (“CFR”) title 49, parts 40 and 655, NYCTA, as a public-benefit corporation that receives funding from the federal government, is required to implement and carry out a policy of drug testing its employees, including random drug tests.

NYCTA implemented such a policy, and Local 100 agreed to it in the CBA. Specifically, as relevant here, under the CBA an employee classified as “safety-sensitive” must submit to a random drug test when ordered by NYCTA to do so. (CBA, app. E-1 (NYSCEF Doc. 23), § 5.3) Prior to the ran- dom drug test that forms the basis for this proceeding, NYCTA randomly drug tested Middleton a total of 10 times. (O&A at 7) She never tested positive. (Id.) On March 8, 2023, Middleton appeared, at NYCTA’s direction, for another random drug test. (Id.) On the intake questionnaire, Middleton indicated that, 14 or 15 years earlier, she had problems urinating and with pelvic floor and menstruation and had been hospitalized. (Id.) Dur- ing the three-hour time limit of the test, during which she was provided two bottles of water, Middleton was able to produce only 30 milliliters of the 45 milliliters of urine required for a sam- ple under the applicable regulations. (Id. at 7-8)

1 Unless otherwise indicated, the following facts are drawn from the arbitrator’s Opinion and Award and are undisputed.

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(Id.) Middleton visited her personal physician, Dr. Emine Cosar, on March 17, 2023. (Id. at 9) Dr. Cosar, who is not a urologist, provided Middleton with a note stating that no medical condi- tion prevented her from producing the requisite amount of urine. (Id.) On March 22, 2023, Middleton visited Dr. Donikyan again. (Id.) During the visit, Middle- ton provided Dr. Donikyan with Dr. Cosar’s note as well as a history of Middleton’s alleged pe- diatric kidney and urinary tract conditions. (Id.) Dr. Donikyan deemed Middleton’s failure to produce a sufficient urine sample on March 8 a test refusal. (Id.) During Middleton’s March 22 visit, Dr. Donikyan referred Middleton to Dr. Donikyan’s own urologist, Dr. Igor Ryndin. (Id.) On March 30, 2023, Dr. Donikyan received a letter from Dr. Ryndin stating that he had seen Middleton and found a 5-millimeter kidney stone in her right kidney via a sonogram. (Id. at 10) The letter also noted the presence of several kidney stones of various sizes in Middleton’s right kidney; a history of mild to moderate obstructive urinary symp- toms and the pharmacological treatment of those symptoms; incomplete bladder emptying; uri- nary-tract infection; blood in her urine; and suspicion of passing a ureteral stone. According to Dr. Ryndin’s letter, Middleton had “a planned cystoscopy to address the mass in her right kidney, dysuria, supra pubic groin discomfort, and voiding dysfunction.” (Id.) Despite Dr. Ryndin’s let- ter, Dr. Donikyan did not change her determination that Middleton had refused the March 8 ran- dom drug test, but she referred Middleton to NYCTA’s Independent Medical Examiner, Dr. Rollin K. Say, a urologist at Mount Sinai Hospital. (Id.) 656352/2023 Cashay S. Middleton et al. v. New York City Transit Authority Page 3 of 28 Mot. Seq. No. 001

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Trying now to confirm that the employee was referred to the SAP. So, at this point, we need to uphold Dr D’s refusal determination. (please update the 3/8 record) and continue the employee in a NW status.

(Id.) Although the exact timeline after this series of email messages is unclear,2 Dr. Munian, who testified to being inexperienced with the governing CFR and these “types of situations,” consulted with Mr. Mallios and with his colleagues, reviewed the applicable regulations, and determined that he had applied the incorrect standard to his decision to reverse Dr. Donikyan’s prior determination, to wit, a “probable” standard rather than the correct “high degree of proba- bility” standard. (Id. at 12-13) Allegedly applying the correct standard to the information that Dr. Ryndin had provided, Dr. Munian decided to uphold Dr. Donikyan’s original refusal determina- tion, finding that Middleton’s kidney stones were nonobstructing and of a relatively small size and that she was not passing a kidney stone. (Id. at 13) Dr. Munian then, at some point on June 13, pulled Middleton out of her return-to-work drug test and informed her of his decision to uphold Dr. Donikyan’s original determination. (Id.) On or about June 29, 2023, Middleton received a Disciplinary Action Notification (“DAN”) from NYCTA seeking to terminate Middleton’s employment based on charges relating to her

2 Although the arbitrator did not state as much in the factual recitation in his Opinion and Award, in his analysis he mentions that Dr. Munian and Mr. Mallios spoke by telephone twice between 2:47 p.m. and 2:58 p.m. (O&A at 22) These may be the “last 2 discussions” referenced in Mr. Mallios’s 2:58 p.m. email.

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(O&A at 2) B. The Arbitrator’s Decision Consistent with the CBA, an arbitration proceeding was commenced to resolve the disci- plinary charges against Middleton. An arbitrator was appointed pursuant to the CBA, and a hear- ing was held via Zoom on October 12 and 25, 2023. (Id.) The arbitrator issued his Opinion and Award on November 20, 2023.

The arbitrator summarized his own decision as follows: After a careful and thorough review of the record, I find [that NYCTA] did not convince me [that Middleton] is guilty of the charges and that dismis- sal is the appropriate penalty. The standard of review I used is whether [NYCTA] convinced me that [Middleton] is guilty by the preponderance of the credible evidence, making it more likely than not [that Middleton] engaged in the charged misconduct. [NYCTA] did not convince me for the following reasons: 1) Absent new medical information, the CFR does not explicitly permit [Dr.] Munian to reverse his reversal of [Dr.] Donikyan’s determination. 2) [Dr.] Munian’s inexperience and the complexity of [Mid- dleton’s] medical history caused [Dr.] Munian to be unsure of his deter- mination and let [Mr.] Mallios unduly influence him. 3) There is no suspi- cion that [Middleton] is a drug user, nor is there any doubt she had a his- tory of medical urinary issues and has current issues. 4) [Middleton] fol- lowed all directives to be retested and evaluated. And 5) It would be unjust to discipline [Middleton] based on her inability to produce enough urine on March 8, 2023.

(Id. at 20) Concerning the first basis for his decision, the arbitrator relied on the express language of 49 CFR § 40.193. The arbitrator noted that Dr. Munian had communicated his initial determina- tion as soon as he made it, and that no new medical evidence was presented to him between that first communication and his subsequent reversal only a short time later. (Id. at 21) “Without new evidence,” the arbitrator concluded, “there is no provision in the CFR letting [Dr.] Munian reverse his first conclusion on June 13, 2023. Between . . . 2:19 p.m. [and] 3:00 p.m. no new evidence was presented.” (Id. at 22) With respect to Mr. Mallios’s influence on Dr. Munian’s reversal of his initial conclusion, the arbitrator observed that, in addition to their email exchange, Mr. Mallios and Dr. Munian 656352/2023 Cashay S. Middleton et al. v. New York City Transit Authority Page 6 of 28 Mot. Seq. No. 001

Courts may vacate an arbitrator's award only on the grounds stated in CPLR § 7511(b).

N.Y.C. Tr. Auth. v. Transport Works’ Union of Am., Local 100, AFL-CIO, 6 N.Y.3d 332, 336 (2005).

CPLR § 7511(b) provides that an arbitration award may be vacated upon a finding that the rights of a party were prejudiced by (1) corruption, fraud, or misconduct in procuring the award; (2) the partiality of an arbitrator; (3) the arbitrator having exceeded their power or so imperfectly exe- cuted it that a final and definite award upon the subject matter submitted was not made; or (4) failure to follow the procedures set forth in Article 75 of the CPLR. CPLR § 7511(b)(1)(i)-(iv). An arbitrator exceeds their power “only where the arbitrator’s award violates strong public policy, is irrational[,] or clearly exceeds a specifically enumerated limitation on the arbitrator’s power.”

N.Y.C. Tr. Auth., 6 N.Y.3d at 336.

The public-policy exception to deference to arbitration awards is limited and applies 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 arbi- trator.” N.Y.C. Tr. Auth. v. Transp. Workers Union of Am., Local 100, AFL-CIO, 99 N.Y.2d 1, 7 (2002) (internal quotation marks and citation omitted). In applying the public-policy exception, courts “must be able to examine an arbitration agreement or an award on its face, without engaging in extended factfinding or legal analysis, and conclude that public policy precludes its

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A party seeking to vacate an arbitration award bears a “heavy burden of establishing by clear and convincing evidence the existence of any ground for vacating [an] arbitration award under CPLR 7511.” Greenky v. Aytes, 138 A.D.3d 460, 460 (1st Dep’t 2016) (internal quotation marks and citation omitted). “Even where an arbitrator has made an error of law or fact, courts generally may not disturb the arbitrator's decision.” In re Falzone, 15 N.Y.3d 530, 534 (2010) (cita- tion omitted).

III. DISCUSSION Upon review of the parties’ arguments in this proceeding, two overarching issues are pre- sented for resolution. The first is whether the arbitrator’s decision is precluded under applicable federal law. NYCTA argues that, under the CFR, an MRO like Dr. Munian has sole authority to make medical determinations, including whether a safety-sensitive employee has failed or re- fused to take a drug test, and that the regulations expressly prohibit an arbitrator from reviewing and overturing an MRO’s medical determination. The arbitrator, NYCTA argues, overturned Dr. Munian’s determination in violation of the applicable regulations. Therefore, NYCTA argues, be- cause the regulations preempt conflicting state law, a court may not affirm the arbitrator’s Opin- ion and Award pursuant to New York state law providing for deference to and circumscribed review of arbitration awards.

Petitioners contend that applicable New York Court of Appeals precedent provides that a court reviewing an arbitration award pursuant to Article 75 may not alter the arbitrator’s findings of fact and legal conclusions, even if the award violates a provision of the federal regulations governing drug testing, and thus the arbitrator’s Opinion and Award reinstating Middleton to her bus-operator position must be confirmed.

The second overarching issue is whether the arbitrator had the authority to reinstate Mid- dleton without requiring her to comply with the substance-abuse professional (“SAP”) evalua- tion, referral, and education/treatment process set forth in 49 CFR § 40.281 et seq. The parties agree that, regardless of whether the arbitrator impermissibly overturned Dr. Munian’s medical deter- mination, the arbitrator had the authority to reinstate Middleton. NYCTA argues, however, that

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The Court addresses each of these issues in turn below.

A. The Arbitrator Impermissibly Overturned the MRO’s Medical Determination The Department of Transportation (the “DOT”) is statutorily mandated to issue regula- tions that, “[i]n the interest of public transportation safety,” “establish a program requiring public transportation operations that receive financial assistance . . . to conduct . . . random . . . testing of public transportation employees responsible for safety-sensitive functions . . . for the use of a con- trolled substance in violation of law or a United States Government regulation.” 49 U.S.C. § 5331(b). The DOT and the Federal Transit Administration, an agency within the DOT, promul- gated regulations establishing such a program codified in title 49, parts 40 and 655 of the CFR.3 These regulations expressly preempt conflicting state laws. 49 U.S.C. § 5331(f) (“A State or local government may not prescribe, issue, or continue in effect a law, regulation, standard, or order that is inconsistent with regulations prescribed under this section.”); 49 CFR § 655.6 (“[T]his part preempts any state or local law, rule, regulation, or order to the extent that: (1) Compliance with both the state or local requirement and any requirement in this part is not possible; or (2) Com- pliance with the state or local requirement is an obstacle to the accomplishment and execution of any requirement in this part.”).

Middleton, as a NYCTA employee in a safety-sensitive position, was required under both the regulations and the CBA to participate in random drug testing. (CBA, app. E-1, § 5.3) The regulations require that an employee subject to a random drug test must provide at least 45 mil- liliters of urine at one time within a three-hour testing period. See 49 CFR § 40.193(a), (b). If the first attempt at specimen collection does not result in 45 milliliters of urine, the employee can make additional attempts during the three-hour period. See id. The employee should be urged to

3 The FTA mandates that covered transportation employers must establish drug and alcohol testing programs, the exact details of which are established in the remaining sections of the regulations, are set forth in 49 CFR §§ 655.21 and 655.31.

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Should the employee fail to provide the required specimen within the three-hour period, she is referred to a physician “who has expertise in the medical issue raised by the employee’s failure to provide a sufficient specimen.” See id. § 40.193(c). The referral physician must be “ac- ceptable to the MRO” and must, within five days, provide a written evaluation of the employee to the MRO containing the referral physician’s recommendations and the basis for them. Id. § 40.193(c), (f).

The referral physician’s report must recommend that the MRO determine either that a “medical condition has, or with a high degree of probability could have, precluded the employee from providing a sufficient amount of specimen” or that an adequate basis to make such a deter- mination does not exist. Id. § 40.193(d)(1), (2). A “medical condition” for purposes of the regula- tion “includes an ascertainable physiological condition (e.g., a urinary system dysfunction . . . ), or a medically documented pre-existing psychological disorder, but does not include unsup- ported assertions of ‘situational anxiety’ or dehydration.” Id. § 40.193(e). An MRO “must seri- ously consider and assess the referral physician’s recommendations in making [the MRO’s] de- termination about whether the employee has a medical condition that has, or with a high degree of probability could have, precluded the employee from providing a sufficient amount of speci- men.” Id. § 40.193(h). As soon as an MRO makes her determination concerning the existence or nonexistence of such a medical condition, the MRO must report that determination to the DER in writing. See id. If the MRO accepts the referral physician’s recommendation that a medical condition pre- cluding the employee from providing a sufficient specimen exists, the MRO must check “Test Cancelled” on the required paperwork. Id. § 40.193(d)(1)(i). An employer receiving an MRO’s re- port indicating that the test in question is cancelled may not take any further action with respect to the employee. Id. § 40.193(i).

Here, NYCTA argues that the arbitrator’s Opinion and Award overturned Dr. Munian’s medical determination that Middleton had failed, through Dr. Ryndin’s evaluation and letter, to establish a qualifying excuse for her failure to provide a sufficient urine specimen. NYCTA further argues that the regulations invest an MRO, like Dr. Munian, with the “sole authority” to make 656352/2023 Cashay S. Middleton et al. v. New York City Transit Authority Page 11 of 28 Mot. Seq. No. 001

The DOT itself interprets this provision to preclude an arbitrator from overturning the medical judgment of an MRO, including an MRO’s determination concerning an employee’s excuse for failing to provide a sufficient specimen: The MRO is the only person authorized to change a verified test result (see § 40.149(C)). The MRO can do so with respect to a verification decision he or she has made, in the circumstances described in § 40.149.

An arbitrator is someone who derives his authority from the employer, or from a labor-management agreement. The arbitrator cannot exercise au- thority that the employer could not exercise on its own. The arbitrator could not overturn a decision of the MRO concerning a test verification any more than the employer could on its own.

This prohibition applies to substantive decisions the MRO makes about the merits of a test (e.g., with respect to . . . whether a medical condition pre- cluded an individual from providing a sufficient specimen).

An arbitrator could determine that a test result should be cancelled be- cause of a defect in the drug testing process involving the MRO (e.g., that the MRO failed to afford the employee the opportunity for a verification interview). But an arbitrator could not overturn the substantive judgment of the MRO about whether, for example, the information submitted by the employee constituted a legitimate medical explanation.

4 NYCTA also cites 49 CFR §§ 40.148(a), 40.149(a), 40.191(a)(3) and (5), and 40.193(a), (c), (d), and (h). Section 40.148 does not appear to exist. And none of the other sections appear to address at all whether an MRO has sole authority.

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For purposes of this proceeding, the issue has been decided in City of Ithaca v. Civil Service Employees Association, Inc., 25 A.D.3d 859 (3rd Dep’t 2006). There, a city truck driver was sus- pended without pay when an MRO determined that the employee’s failure to urinate at the time of a random drug test was not excused by a pre-existing psychological condition. Id. at 860. The union, which filed a grievance on the employee’s behalf, conceded that, pursuant to 49 CFR § 40.149(c), the MRO’s substantive decision could not be overturned by an arbitrator. Id. The Third Department held that, “[i]nasmuch as respondent’s challenge to the employer’s discipli- nary action was based solely on the MRO’s substantive, nondelegable medical determination, Supreme Court properly granted petitioner’s application to stay arbitration.” Id. at 860-61; see also Melman v. Metro. Gov’t of Nashville & Davidson Cty., No. 3:08-cv-1205, 2009 WL 2027120, at *3 (M.D.

Tenn. July 9, 2009) (“Under DOT regulations, if a person is unable to provide an adequate urine sample for a required drug test, the MRO has the sole authority to make or change a determina- tion that the inability was caused by a medical condition.” (citing 49 CFR § 40.149(c))). The Court of Appeals subsequently denied leave to appeal. City of Ithaca v. Civil Serv. Emps. Ass’n, Inc., 6 N.Y.3d 712 (2006). Notwithstanding the Court of Appeals’s denial of leave, with no apparent di- rect First Department precedent on the issue, this Court is bound to follow the Third Depart- ment’s holding. McKinney's Cons. Laws of NY, Statutes § 72(b); D'Alessandro v. Carro, 123 A.D.3d 1, 6 (1st Dep't 2014); Mountain View Coach Lines, Inc. v. Storms, 102 A.D.2d 663, 664-65 (2d Dep't 1984).

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This, of course, simply returns the analysis to the central question here: Did the arbitrator in fact overturn Dr. Munian’s substantive medical determination? NYCTA contends that the ar- bitrator did just that. Petitioners, however, contend that the arbitrator instead reviewed and found fault with the process by which Dr. Munian made his determination and that such review is not preempted and is entitled to the usual deference afforded under New York law to arbitrator fac- tual and legal determinations. Petitioners point to a number of New York Court of Appeals deci- sions but rely primarily on Dowleyne v. New York City Transit Authority, 3 N.Y.3d 633 (2004).5 NYCTA, in turn, dismisses Dowleyne’s relevance and argues that the arbitrator effectively looked behind the substance of Dr. Munian’s medical determination in the guise of purporting to review Dr. Munian’s process.

Dowleyne is relevant to the resolution of the issues presented in this proceeding and war- rants extended discussion. In Dowleyne, like here, a NYCTA bus operator, Leslie Dowleyne, was unable to produce 45 milliliters of urine during a random drug test, despite attempting to do so multiple times during the three-hour testing period. Index No. 103565/02, slip op. at 4 (N.Y. Sup. Ct. N.Y. Cty. Dec. 3, 2002) (NYSCEF Doc. 9). Ms. Dowleyne reported to the MRO the following day and was referred to Dr. Avram L. Nemetz, “a doctor acceptable to the NYCTA.” Id. at 4-5.

“Dr. Nemetz’s report noted certain medical history and current symptoms . . . but concluded that [Ms. Dowleyne] had no medical condition that would limit her ability to urinate.” Id. at 5. After receiving Dr. Nemetz’s report, the MRO noted that there was no medical reason for Ms. Dow- leyne’s inability to provide a sufficient urine specimen, and NYCTA served Ms. Dowleyne with

5 None of the other cases on which Petitioners rely concern the specific regulations governing the random drug- testing process or an MRO’s role therein. Instead, these cases all concern an arbitrator’s authority to modify the pen- alty’s imposed on employees or the scope of the public-policy exception to deference to arbitration awards. See N.Y.C.

Tr. Auth. v. Transp. Workers Union of Am., Local 100, 14 N.Y.3d 119 (2010); N.Y.C. Tr. Auth. v. Transp. Workers’ Union of Am., Local 100, AFL-CIO, 6 N.Y.3d 332 (2005); N.Y.C. Tr. Auth., 99 N.Y.2d 1.

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Id. at 6-7 (alterations in original).

The trial court granted Ms. Dowleyne’s petition to confirm the award and denied NYCTA’s cross-petition to vacate the award. Id. at 13-14. Like here, NYCTA had argued that 49 CFR § 40.149(c) and the DOT Q&As precluded the board from reversing the MRO’s determina- tion that Ms. Dowleyne refused to submit to the drug test. Id. at 9. The trial court appeared to accept that the regulations in fact precluded an arbitrator from overturning an MRO’s substantive medical determination. See id. at 9-14. Reviewing the board’s decision under the public-policy ground for vacating an arbitration award, however, the trial court rejected NYCTA’s argument that the board’s decision was precluded under the regulations, on the ground that the board “did not overturn a substantive medical determination by the MRO.” Id. at 10. Rather, the trial court found that the board “found that the MRO vitiated the drug testing process through the abdica- tion of his duty to insure the accuracy and integrity of the process by failing to exercise his medical judgment and failing to draw ‘conclusions.’” Id. at 12 (citing 49 CFR § 40.25(f)(10)(iv)(B) (2000)6).

6 As the First Department acknowledged in Dowleyne v. New York City Transit Authority, 309 A.D.2d 583, 584 n.1 (1st Dep’t 2003), part 40 has since been revised to incorporate former part 653 and renumbered. The text of § 40.25 in effect when Ms. Dowleyne’s drug test took place reads, in relevant part: (B) The employer shall direct any employee who does not provide a sufficient urine specimen . . . to obtain, as soon as possible after the attempted provision of urine, an evaluation from a licensed physician who is acceptable to the employer concerning the employee’s ability to provide an adequate amount of urine. (1) If the physician determines, in his or her reasonable medical judgment, that a medical condition has, or with a high degree of probability, could have, precluded the employee from providing an adequate amount of urine, the employee’s failure to provide an adequate amount of urine shall not be deemed a refusal to take a test. For purposes of this paragraph, a medical condition includes an ascertainable physiological condition (e.g., a urinary system dysfunction) or a documented pre- existing psychological disorder, but does not include unsupported assertions of “situational anxiety” or dehydration. The physician shall provide to the MRO a brief written statement setting forth his or her conclusion and the basis for it, which shall not include detailed information on the medical condition of the employee.

Upon receipt of this statement, the MRO shall report his or her conclusions to the employer in writing. (2) If the physician, in his or her reasonable medical judgment, is unable to make the determination set forth in paragraph (f)(10)(iv)(B)(1) of this section, the em- ployee’s failure to provide an adequate amount of urine shall be regarded as a refusal to take a test. The physician shall provide to the MRO a brief written state- ment setting forth his or her conclusion and the basis for it, which shall not include detailed information on the medical condition of the employee. Upon receipt of 656352/2023 Cashay S. Middleton et al. v. New York City Transit Authority Page 16 of 28 Mot. Seq. No. 001

Second, the board noted that the MRO failed to explain why he credited Dr. Weiner’s report over Dr. Stein’s report, when Dr. Stein is a urologist specializing in conditions related to incontinence, and failed to reconcile their conflicting reports. Id. Third, the board “was also troubled by the failure of either report to address the issue of whether Ms. Dowleyne’s medical condition was such that it contributed to an inability to supply the required amount of urine on the day she was tested.” Id. The trial court ultimately held that such an abdication of the MRO’s responsibility to ex- ercise independent medical judgment when evaluating Ms. Dowleyne’s case, “like the failure to afford an employee a verification interview (see Part 40, Answer 25), constitutes a defect in the drug testing process, and is grounds for an arbitral reversal of the MRO’s determination resulting from the flawed process.” Id. at 12.

NYCTA appealed the trial court’s decision to the First Department. Dowleyne v. N.Y.C. Tr.

Auth., 309 A.D.2d 583 (2003). The First Department reversed the trial court on the same recognized public-policy ground for vacating an arbitral award under which the trial court had performed its analysis. See id. at 585. Reaching a different conclusion than the trial court, however, the First Department held that “[s]trong public policy considerations, which are embodied in the express this statement, the MRO shall report his or her conclusions to the employer in writ- ing. 49 CFR § 40.25(f)(10)(iv)(B) (2000), available at https://www.govinfo.gov/content/pkg/CFR-2000-title49-vol1/pdf/CFR- 2000-title49-vol1-sec40-25.pdf. Although these provisions now exist, in revised form, in 49 CFR § 40.193, the “substance of the regulations has not changed.” Dowleyne, 309 A.D.2d at 584 n.1.

7 The regulations in effect at the time of Ms. Dowleyne’s drug test mandated that a referral physician be acceptable to NYCTA, 49 CFR § 40.25(f)(10)(iv)(B) (2000), whereas the revised regulations provide that the referral physician be acceptable to the MRO, 49 CFR § 40.193(c). The trial court noted this change in a footnote. Dowleyne, Index No. 103565/02, slip op. at 11 n.7.

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Further, the arbitrator’s determination to reinstate Ms. Dowleyne under- mines the important policy of keeping drug users from performing safety sensitive functions. It also subverts the NYCTA’s anti-drug policy, and it undermines any deterrent effect on other employees. The ultimate goals of the DOT regulations are the safe operation of NYCTA vehicles and the protection of the public. These can only be accomplished if the regulations are strictly enforced.

Id. at 586 (internal citation omitted).

Ms. Dowleyne subsequently appealed to the New York Court of Appeals, which reversed the First Department and reinstated the trial court’s judgment confirming the arbitration award.

Dowleyne, 3 N.Y.3d 633. The Court of Appeals held simply that “[t]he Appellate Division’s vacatur cannot stand because it improperly substituted its factual finding for that of a majority of the arbitration panel.” Id. at 634.

The parties have very different views on the meaning and relevance of the Dowleyne deci- sions. NYCTA takes the position that, taken together, the three Dowleyne decisions do not “stand for the proposition that CPLR Article 75 state law review of an arbitration award involving the federal drug testing of public transportation safety-sensitive employees is not subject [to] federal preemption.” (NYSCEF Doc. 15, ¶ 38) Nor, according to NYCTA, do the Dowleyne decisions “hold that an arbitrator can review an MRO medical determination or annul SAP return to work re- quirements—these are matters of federal law.” (Id.) While NYCTA acknowledges that the Dow- leyne decisions and the other cases on which Petitioners rely “stand for the well-established prop- osition that the scope of judicial review of an arbitration award under state law is exceedingly

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(Id. ¶ 78) Petitioners’ arguments concerning Dowleyne hit closer to the mark, although certain of NYCTA’s arguments also have some limited merit. As NYCTA contends, collectively the Dow- leyne decisions do not stand for the proposition that federal law and regulation, and specifically title 49, parts 40 and 655 of the CFR, do not preempt state law when state law conflicts with federal law or regulation. Nor could they—it is axiomatic, after all, that in our structure of government, federal law is the “supreme Law of the Land.” U.S. Const. art. IV, cl. 2; Sutton 58 Assocs. LLC v. Pilevsky, 36 N.Y.3d 297, 305 (2020). Thus, a court cannot confirm an arbitration award under Arti- cle 15, thereby converting that award into an enforceable judgment, if enacting the award would force NYCTA to violate express federal law or regulation. The Court has already concluded, based on controlling New York law applying 49 CFR § 40.149(c), as well as Petitioners’ own failure to

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But Petitioners are nevertheless correct that an arbitrator can declare a drug test cancelled if the arbitrator finds fault in the testing process leading to an MRO’s medical determination. The DOT Q&As expressly state as much. DOT Q&As § 40.149 (“An arbitrator could determine that a test result should be cancelled because of a defect in the drug testing process involving the MRO.”). And Dowleyne similarly demonstrates that an arbitrator’s authority extends, under the regulations, to testing procedural issues. In Dowleyne, the trial court confirmed the arbitration board’s decision and award expressly because the board made a factual determination that the MRO, in concluding that Ms. Dowleyne had refused to test, had failed to exercise the independent medical judgment that the board concluded was required under the regulations. Dowleyne, Index No. 103565/02, slip op. at 10, 12. As the trial court put it, that failure “constitutes a defect in the drug testing process, and is grounds for an arbitral reversal of the MRO’s determination resulting from the flawed process.” Id. at 12. The Court of Appeals reversed the First Department’s decision and upheld the trial court’s decision because the First Department had “substituted its factual finding for that of a majority of the arbitration panel.” Dowleyne, 3 N.Y.3d 633. While, as NYCTA points out, the relevant “factual finding” is unstated in the Court of Appeals’s decision, there is no mystery as to what that factual finding is. It is, and could only be, the board’s finding that the MRO failed to exercise the required medical judgment, resulting in a flawed process under the regulations.

To the extent that NYCTA argues that arbitral review of the circumstances leading to an MRO’s substantive medical determination is preempted and barred because such review is tan- tamount to reviewing the MRO’s determination, that argument is meritless and rejected. Of course, cancelling a drug test based on procedural noncompliance will necessarily nullify an MRO’s substantive medical determination. But that is not the equivalent of overturning the MRO’s determination within the meaning of the regulations. If it were, the DOT would not have inter- preted § 40.149(c) to permit an arbitrator to cancel a drug test on procedural grounds. Adopting such a meaning would also insulate from review any aspect of the process used in drug testing a

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Clearly, however, the “process” on which an arbitrator relies to cancel a drug test must be set forth expressly in the governing regulations or otherwise fairly implied by the text, structure, or purpose thereof. The DOT provides one example of an express process violation warranting an arbitrator’s cancellation of a test: when the MRO fails to afford the employee the opportunity for a verification interview, as expressly required under 49 CFR §§ 40.129 and 40.135-.145. DOT Q&As § 40.149. A second example is failing to afford the employee the full three-hour period in which to provide a sufficient sample, as mandated by 49 CFR § 40.193. Amalgamated Tr. Union Div. Local 757 (AFL-CIO) v. Tri-Cty. Metro. Transp. Dist. of Or., 195 P.3d 389 (Or. Ct. App. 2008) (holding that arbitrator did not violate regulation prohibiting overturning of MRO’s medical judgment by finding employee not permitted three hours to provide specimen). Dowleyne pro- vides a third example. There, the process violation derived from the regulations’ requirements that an MRO exercise her medical judgment and draw “conclusions” while acting as “an inde- pendent and impartial gatekeeper and an advocate for the accuracy and integrity of the drug test process.” See Dowleyne, Index No. 103565/02, slip op. at 6-7, 12; 49 CFR § 40.123(a). An arbitrator cannot cancel a drug test administered pursuant to the federal drug-testing regulations based upon lack of conformance with a testing process that does not exist, in some express or implied form, in the regulations. Such nullification of an MRO’s substantive medical determination would constitute a de facto overturning of that determination for reasons not permitted by the regula- tions.

Significantly, none of the foregoing examples of process violations warranting cancella- tion of a drug test involve an arbitrator second-guessing the MRO’s medical judgment. Such di- rect second-guessing of an MRO’s medical judgment by an arbitrator is the hallmark of an action proscribed under 49 CFR § 40.149(c). Such an action is taken when, upon reviewing the same medical evidence that was reviewed by the MRO, the arbitrator reaches a conclusion differing from the MRO’s own conclusion. For example, in Dowleyne, had the MRO properly explained the

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Close review of the Dowleyne decisions also makes clear that NYCTA’s assertion that the First Department’s statement of the law survives and is controlling is without merit. In its deci- sion, the First Department merely applied the public-policy exception to deference to arbitration awards, finding that the public policy considerations embodied in the express terms of the regu- lations “militate against allowing anyone who did not comply with random drug testing proce- dures from performing safety sensitive functions.” Dowleyne, 309 A.D.2d at 585. Although not explicit in its decision, the Court of Appeals’s subsequent reversal demonstrates that the First Department misapprehended the determinative issue in the case. It was not, as the First Depart- ment believed, whether Ms. Dowleyne should have been permitted to perform safety-sensitive functions after being found to have refused a random drug test, but, rather, whether Ms. Dow- leyne had refused a random drug test in the first place. Of course, wrapped up in that issue was whether the arbitration board had overturned the MRO’s substantive medical determination when finding that Ms. Dowleyne had not refused the drug test—an issue that the First Depart- ment’s decision fails to address. The First Department’s stated policy concerns in Dowleyne are only relevant after the issue of whether a drug test was refused—which may, in turn, implicate whether an MRO’s substantive medical determination has been improperly overturned—is first resolved in favor of a refusal.8 Finally, while again not explicit in its decision in Dowleyne, the Court of Appeals’s reversal of the First Department and reinstatement of the trial court’s decision nevertheless reveals that courts should apply the normal rules of review when reviewing arbitration awards cancelling a random drug test based on a process violation. In other words, where an arbitrator cancels a ran- dom drug test due to a process violation, and an MRO’s determination is effectively nullified This not to say that NYCTA or another transportation organization subject to the regulations in question cannot temporarily remove an employee from safety-sensitive functions pending final resolution of the issue in arbitration and, if necessary, court proceedings.

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Applying the foregoing to Middleton’s case, the Court concludes that the arbitrator’s Opinion and Award must be vacated to the extent that it concludes that Middleton is not guilty of the charges that NYCTA has levied against her. Certainly, the facts and circumstances of Mid- dleton’s case are unique (and likely will continue to be so). Consequently, because no prior case is on all fours with it, Middleton’s case presents a significant analytical challenge. That challenge must, nevertheless, be resolved in favor of vacatur.

Because an arbitrator can review the drug-testing process for compliance with the regula- tions but not an MRO’s medical judgment, that circumstance seems to imply that there is a role for courts to play at this intersection of Article 75 and federal law and regulation in determining, as a threshold matter, whether an arbitrator in fact relied on a process actually embodied in the regulations. If the arbitrator did, then her decision as to whether that process was violated should be afforded all due deference. If the arbitrator did not rely on a process embodied in the regula- tions, while she may not have directly second-guessed the MRO’s medical judgment, she still will have nullified the MRO’s substantive medical determination on grounds not permitted under the regulations, and the public-policy exception to courts’ deference to arbitration awards should then become applicable.

Here, the arbitrator appears to have invented the process violation on which he relied out of whole cloth. It is undisputed that Dr. Munian first reversed Dr. Donikyan’s prior determination of a refusal based on Dr. Ryndin’s letter but then, later the same day, reached a different conclu- sion and upheld Dr. Donikyan’s earlier determination. The arbitrator found that this sequence of events was not permitted under the regulations, writing that, “[a]bsent new medical evidence, the CFR has no provision allowing [Dr.] Munian to reverse his initial conclusion on June 13, 2023.”

(NYSCEF Doc. 5 at 21) The arbitrator further found that Dr. Munian’s different conclusions based on the same medical evidence were “caused by [Dr.] Munian’s lack of experience applying CFR, the complexity of [Middleton’s] pediatric urinary history, and her current medical issues.” (Id. at 656352/2023 Cashay S. Middleton et al. v. New York City Transit Authority Page 23 of 28 Mot. Seq. No. 001

The arbitrator’s legal conclusion that new medical evidence was required for Dr. Munian’s revised determination to be valid is based on the text of 49 CFR § 40.193. (See id. at 20-21) Subsec- tion (h) thereof, on which the arbitrator specifically relied, provides: As the MRO, you must seriously consider and assess the referral physi- cian’s recommendations in making your determination about whether the employee has a medical condition that has, or with a high degree of prob- ability could have, precluded the employee from providing a sufficient amount of specimen. You must report your determination to the DER in writing as soon as you make it.

To be sure, as the arbitrator found, nothing in this provision expressly permits an MRO to make successive, conflicting determinations upon the same medical evidence. At the same time, how- ever, nothing in this provision, or in any other provision of § 40.193, expressly prohibits an MRO from doing so. But more directly relevant to the situation actually in question here, nothing in the provision, or again in any other provision of § 40.193, expressly prohibits an MRO from immedi- ately revisiting her determination to reconsider and revise it after realizing that she had made an error in rendering it.

Indeed, there is no plausible reason why the drafters of the regulations would have wanted to incorporate by implication therein an unwritten process by which an MRO could not correct an error in an express written process. If Dr. Munian evaluated Dr. Ryndin’s letter under a “probable” standard rather than the expressly mandated “high degree of probability” stand- ard—and, again, there is nothing in the arbitrator’s Opinion and Award rejecting that scenario as fact—then that itself constitutes a process violation detrimental to the rider-safety policy goals that animate the regulations. The arbitrator appeared to interpret the second sentence of subsec- tion (h)—"You must report your determination to the DER in writing as soon as you make it”— 656352/2023 Cashay S. Middleton et al. v. New York City Transit Authority Page 24 of 28 Mot. Seq. No. 001

In conclusion, the Court finds nothing, either express or implied, in 49 CFR § 40.193 that prevents Dr. Munian from taking the actions that he took in ultimately reaching his determination that Middleton had no medical excuse for her failure to produce a sufficient specimen and up- holding Dr. Donikyan’s prior determination. As a result, the arbitrator nullified Dr. Munian’s substantive medical determination not on any process ground recognized under the regulations but, instead, impermissibly overturned his determination in violation of the regulations. To the extent that it found Middleton not guilty of the charges against her, the arbitrator’s Opinion and Award must, therefore, be vacated.

B. The Arbitrator Impermissibly Reinstated Middleton Without Ordering Her to Undergo Evaluation By a Substance-Abuse Professional The parties agree that, even if the arbitrator impermissibly overturned Dr. Munian’s med- ical judgment, the appropriate personnel decision—i.e., the penalty, if any, that should be im- posed on Middleton—is still within the arbitrator’s purview to decide. (Compare Cr.-Pet. ¶ 25 (“Whether Middleton is terminated is a contractual matter entirely within the purview of the arbitrator.”), with VA ¶ 25 (“Petitioner admits the allegations in paragraph 25.”), and id. ¶ 82) In other words, after considering the evidence presented during the arbitration, the arbitrator could have determined that a penalty less severe than termination, or no penalty at all, should be im- posed upon Middleton.

NYCTA argues, however, that whatever any lesser penalty may be, it still must comply with the regulations’ requirement that any safety-sensitive employee who fails or refuses a ran- dom drug test, such as Middleton did here, must be removed from performing safety-sensitive duties and can only return to performing those duties after completing the prescribed SAP eval- uation, referral, and education/treatment process. Because the arbitrator here ordered Middleton reinstated without first undergoing that mandatory SAP process, NYCTA contends that the

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NYCTA is correct. The regulations expressly require that before any employee can return to performing safety-sensitive duties after failing or refusing a random drug test, she must first undergo the SAP process and pass a return-to-work drug test. 49 CFR §§ 655.46, 655.61(b); id. §§ 40.285(a), 40.305(a). Under the CBA, if an employee has failed or refused a drug test, an arbi- trator has the uncontested authority to determine the appropriate remedy, including reinstate- ment, so long as it does not omit or forego compliance with the SAP process and a return-to-work drug test. See Procedures for Transportation Workplace Drug and Alcohol Testing Programs: Ad- dition of Oral Fluid Specimen Testing for Drugs, 88 Fed. Reg. at 27622 (“[A]s has been true from the beginning, all the [DOT] requires is that an employee who violates the rule not perform safety- sensitive functions until and unless he or she successfully completes the return-to-duty process.

Decisions about discipline and termination are left to the discretion of the employer or labor- management negotiations. Where employer policy, or labor-management negotiations, have del- egated personnel decisions of this kind to an arbitrator, the [DOT] intends that the arbitrator’s decision determines the personnel action that the employer takes. . . . [T]he employee must suc- cessfully complete the federally required return-to-duty process regardless of what the decision is on the personnel action. This ensures safety is not compromised. Importantly, a refusal is a willful violation of the [DOT’s] drug and alcohol safety regulations and is completely separate and apart from employment decisions the employer makes.”); Union Pac. R.R. Co. v. Am. Ry. & Airway Supervisors’ Ass’n, 838 F. App’x 846, 850-51 (5th Cir. 2020) (“[A]n arbitration award would directly contravene § 40.149(c) if it disregarded the MRO’s medical determination in ordering an employer to allow an employee to return to performing safety-sensitive work without going through DOT’s rehabilitative measures. . . . In other words, an arbitrator may disagree with the MRO as long as its remedy does not conflict with Part 40’s return-to-duty procedures. The MRO has the sole authority to establish the validity of a drug test for determining whether those pro- cedures are necessary—not for making personnel decisions. . . . [A] meaningful distinction lies in whether the drug test is valid for purposes of ‘personnel policy’ or a ‘federal safety regulation.’

Under the RLA, the arbitrator has the authority to decide the drug test’s validity for the former purpose, while under § 40.149(c), the MRO has the authority to decide the drug test’s validity for the latter purpose.”). If the remedy awarded by the arbitrator does not comply with the federally 656352/2023 Cashay S. Middleton et al. v. New York City Transit Authority Page 26 of 28 Mot. Seq. No. 001

The only condition that the arbitrator placed on Middleton’s reinstatement was that she pass a return-to-work drug test. But the regulations require more. As just discussed, in addition to the return-to-work drug test, they require that Middleton undergo the SAP evaluation process set forth in § 40.281 et seq. The SAP may, of course, conclude that Middleton has no drug problem requiring referral and treatment, but even the near certainty of that outcome does not obviate the process altogether. To the extent that it awarded Middleton reinstatement without requiring her to first undergo the SAP evaluation process, the arbitrator’s Opinion and Award must, therefore, be vacated.

Accordingly, it is hereby: ORDERED and ADJUDGED that Petitioners’ Verified Petition and Order to Show Cause (Seq. No. 1) are DENIED; and it is further ORDERED and ADJUDGED that NYCTA’s Verified Cross-Petition and Notice of Cross- Petition (Seq. No. 1) are GRANTED, and the arbitrator’s Opinion and Award, dated November 20, 2023, regarding DAN No. 23-3723-0097 is VACATED, and this proceeding is DISMISSED; and it is further ORDERED that the underlying matter regarding DAN No. 23-3723-0097 is remitted to a different arbitrator to make further determinations in accordance with this Decision and Order; and it is further

9 Soon after the First Department issued its decision in Dowleyne, the Court of Appeals issued its decision New York City Transit Authority, 99 N.Y.2d 1. The Court of Appeals held in that latter decision that “[t]he legislative authority to ‘manage, control and direct’ the operation of New York City’s public transportation system for the ‘convenience and safety of the public’ does not translate into a statutory prohibition against some relinquishment to arbitrators of the final say in safety matters when they arise in the context of employee discipline.” Id. at 9. The specific regulations requiring that an employee who failed or refused a drug test be removed from safety-sensitive duties—on which reg- ulations the First Department primarily relied in Dowleyne—were not, however, involved in New York City Transit Au- thority, 99 N.Y.2d 1.

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ORDERED that Respondents shall serve a copy of this Decision and Order upon the Clerk of the General Clerk's Office with notice of entry within twenty (20) days thereof; and it is further ORDERED that service upon the Clerk of Court shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electroni- cally Filed Cases (Revised August 15, 2019); 10 and it is further ORDERED that any requested relief not expressly addressed herein has been considered and is denied; and it is further ORDERED that the Clerk shall mark Motion Sequence 1 decided in all court records; and it is further ORDERED that the Clerk shall mark this proceeding disposed in all court records.

This constitutes the decision and order of the Court.

October 1, 2024 DATE SHAHABUDDEEN ABID ALLY, A.J.S.C. CHECK ONE: PETITION: CROSS-PETITION: CHECK IF APPROPRIATE: X

X CASE DISPOSED GRANTED GRANTED SETTLE ORDER 0 DENIED □ DENIED INCLUDES TRANSFER/REASSIGN NON-FINAL DISPOSITION GRANTED IN PART GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT § OTHER OTHER STAY CASE REFERENCE

10 The protocols are available at https://www.nycourts.gov/LegacyPDFS/courts/ljd/supctmanh/Efil-protocol.pdf.

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