good morning honors my name is william prentice yarrow it's a pleasure to be herm like you know my client is present with her husband could you just raise your hand and i think the two law students for giving up their under the human rights law in new york the way it works in new york is like every other discrimination case it begins with a prime aphasia case in federal law and state law that's a very minimal burden in new york there just has to be enough evidence so that an inference can be drawn that the adverse employment action is related to some because we are relying on the figaro vs foster case which deals with discrimination during the grievance slash arbitration process so generally speaking who's your claim against th regard it's against the both the hospital and the union the better case is against the union because there is precedent for figure of our says foster decided shortly before we filed this case with the  discrimination against the union france that i'm asking you to draw is that their decision not to arbitrate is based upon disability and the evidence of that is that they know she's disabled that they are going out of their way not to help in this case i had to take a very unusual step something i've never had to do in my career that is to go to the n l r b and ask them to force a union just to simply file a grievance it's a very easy thing to do and we went through that whole process and the n l r b was going to discipline them if they didn't so they agreed to do it so they filed a grievance so this is an organization that in my view is really going out of their way not to help my client so the inference is what is the evidence that sustains that claim that that's disability discrimination which is i understand it how your how you're characterizing or posturing the claim in this case well let me just tell you this in the early years i've been doing this i've never had anybody admit that they're discriminating so it's  done circumstantially in most cases the vast majority of cases we go back to what's the source of the knowledge that the parties your clients allege you're alleging on behalf of your client discriminated against i wrote a letter i sent them a letter after dismissal and saying she has sleep apnea and here are the medical records and i didn't get medical i didn't go to a doctor after she got fired we had records before she was fired the doctor said she has chronic obstructive sleep apnea and that it will cause a brief instances of some the once i never heard of that word before but i looked it up and it means you going to fall asleep at work so and that's a diagnosis that predates the terminations so they knew she was disabled and a union's job is to help people and this is very very minor form of misconduct i realize it's misconduct to fall asleep at work it's probably one of the worst forms of misconduct but when it's explained by an illness when it's not so bad so they know and you say are you saying that they said no one's going to admit these things well of course and that evidence but what we do in these cases they have the it was set up in the mcdonnell douglas several years ago wreck in recognition that it's hard for us to prove these cases there's a very minimal burden called a prime aphasia case so we've alleged one that they know too i've shown you how they're going out of their way not to help i've alleged also that very minor forms of misconduct very few people are terminated the first time any union in a union very few people are terminated and we learn that through discovery she told me that other people have told me that i'm familiar with this hospital i've represented other people i know they have a form of progressive discipline it's just not a case they would normally turns terminate somebody you fall asleep on successive days right after she started no never tell them in the new job yes and the new job new position two successive days briefly nodding off she wasn't sleeping under the desk she was in sleeping in the lunchroom she wasn't sleeping out in the parking lot and i've had cases like that but it was briefly nodding off that was you got her post she was at a post there was a brief listen i'm not saying she wasn't working she was out a post there was a brief lull in the work she doesn't dispatch ambulances for a living she doesn't drive a train for a living i realize falling asleep is a problem but when it's explained by an illness you have to take that into consideration this is really not a case that would normally turns terminate somebody that's just what we've alleged what were your duties as a telecommunications operator what was she doing that now in university hospital has to play inches they have a north a south so sometimes they have to transfer patients from one place to the other and she arranges that it's just a range of transportation from one facility to another it's not like an emergency it's not a nine one one call that's what she does so you alleged enough to create the inference of discrimination so the way it works in new york and in federal court then the you assert is sufficient evidence that the hospital knew your client had a disability that was the basis for their discrimination the initial that i wrote a letter i sent to a federal express to the hospital and the union and i said this woman has sleep apnea and you really can her you have to do something else and i also sent to to the union i said you have to grieve this this is not something you could ignore and they ignored me and then we went to the contrary and i was to the could say ok you can come back or you still fired so they kind of they look at it all over again and in this case they said no we don't care if you have sleep apnea we don't care if you disable you still fired that's a now did they say that no they didn't say that but that's you say that she was fired at understand it's not a life of compassion for women who i sleep apnea it's series affliction and it's serious to be fired because you have that kind of affliction but the firing was over when when all of this started and the firing was not because of sleep because they didn't know that you had sleep apnea they didn't know so you know i understand the problem what are they supposed to grieve because they didn't fire back you know i don't understand what what what the union was what its position was supposed to be if you concede that you was fired in the grievance an arbitration process that case specifically states that one of the one of the plaintiffs in that case alleged that the union did not go to arbitration based upon  protected characteristic we don't know what it was then ask you this yes point your bruce where you say the c v is required a suggestion of other suitable employment to pursuing that that they should have found or a different position what i'm saying there is that initially the hospital and the union stated but in other words the grounds for terminations a nationally were your probationary you're gone and i said well no you're wrong she's not really a probationary worker she's been with the union for seven years so when you're a probationary in a new job but not  probationary as in the union you can't just throw somebody away i'm ira lying on that no i'm relying on the human rights but what i am stating is that if they offer that as a defense it's itrate they stopped alleging that the client was probationary because they knew if they persisted with that they would have been disciplined so they changed their theory at the eleventh hour or two we found we found a document from the hospital that states if you fell asleep at work we can fire you i mean i'm not surprised that that's the policy you everywhere it's the policy here if you want to look like phones asleep you got to fire them so my time's running out so i have a red line but thank you it looks like i'm over the top thank you very much thank you thank you council will hear from m fourteen she concedes that she didn't tell her employer that she was sleeping due to a medical condition until almost a month after she was fired now eventually the union grieved the decision to terminate her employment and the hospital denied  based on her probationary status now the appellant asserts that this gives rise to claim for disability discrimination under state and city human rights laws but the district court properly determined that her claims are preempted by section three zero one of the labor management relations act so her probationary status puts are in a category where she has far fewer protect its own right the yes that was the position of the hospital took during the grievance process  now she contested that based on her assertion that she had a right to reinstatement to an alternate position under this these questions require interpretation of the collective bargaining agreement and under the supreme court's decision in alice charmers that establishes that when any claim for element of a plaintiff's claim for relief requires the interpretation of a collective bargaining agreement that claim  preempted by section three of one of the labor management relations act and her claims depend on the interpretation of the collective bargaining agreement to the extent that a court or an arbitrator would to resolve her claims need to determine whether she was properly classified as a probationary employee who could be terminated for any time whether she was entitle to be reinstated to an alternate position despite her probationary status whether she was entitled to be terminated only for just cause  whether sleeping on the job warranted application of the principles of progressive discipline and whether she was entitle to a didn't novo review of her terminations during the grievance and arbitration procedures all of which are controlled by the c b s all of which would be require interpretation of the of the c b i and are controlled by the c b i didn't see the c b i in our in our papers is there some reason for that i was not on your page you know i was not introduced as part of the record in the district court hospital denied the grievance on the basis of her probationary status so it's clearly reflected on the face of her complaint that there is some dispute between the parties as to the proper interpretation of the collective bargaining agreement there is no right under the state and city human rights laws or no precedent under the state and city human rights laws that requires employers to excuse an employee's past misconduct based on an after the fact disclosure of the individual's disability she argues that the hospital reserve acquired to do this to basically excuse her past misconduct because of her disability based on the grievance and arbitration procedure provided by the c b s now whether in fact the c b a provided that right to her whether or not this required the hospital to essentially reconsider the decision to fire her as if it had known she was disabled at the time it made the decision to fire her that's a question of collective bargaining and agreement interpretation and may very well be it would have been helpful to have seen the c b i provisions you're talking about the goods that's as much for the union certainly determining whether i would agree that your honor that interpret ing the c v a determining whether or not the c p a pardon me that determining what plaintiff's rights under the collective bargaining agreement requires looking at the c b a would be an easier solution to this is this really dispute it seems among the parties that there are c b a provisions under the collective bargaining agreement or at least the allegations in the complaint reflected that there is a disagreement among the parties about what those rights and entitlements were so the fact that the parties are disputing the meaning of the collective bargaining agreement the court to determine whether or not plaintiff has a claim in the first instance the court is going to be required to interpret the print disputed provisions of the collective bargaining agreement that plaintiff alleges entitle her to be reinstate good morning me please the court my name is michael wissink i represent defendant appellee eleven ninety nine sci you and its president george gresham the district court wrote a well reasoned and detailed decision here that answers the narrow question before this court whether the complaint was pled as a hybrid section three zero one d a far claim or whether it was plowed under state anti discrimination law in ruling on the motion to remand with respect to eleven ninety nine judge ross found that there are no factual allegations in the complaint that provide even minimal support for the assertion that eleven ninety nine discriminated against her she also found that even if the complaint had stated a plausible claim for relief against the union it was one for breach of the duty of fair representation and no matter how that was labeled it's a claim that arises under federal law there were questions about there were statements made regarding the the evidence of discrimination there were no factual statements in the complaint that provided any expression of anti disability bias nor were the was there any allegation of of any provision of any circumstantial evidence just simply nothing in the complaint but a bare bones assertion that discrimination had occurred plaintiff argues that the discrimination occurred because she had a meritorious grievance that did not go to arbitration and making that conclusion as you  heard from the hospital requires an interpretation of the contract and to answer you a little more fully judge johnny the there are two things at play here for why i guess we don't have the contract in the record first i would point you to the appendix it's page twenty five through twenty seven it's the letter that counsel sent to notify the union and the employer that his client was disabled and that was a month after the terminations that's a three page single spaced letter and there are two sentences in there that provide the notice of the disability the remainder of that letter is a detailed march through the contract through the c b i and counsel himself putting those those provisions of the contract in play so to speak and second judge ross was dealing with a time barred far claim once counsel was was was aware that his claim was in federal court far and he abandoned that so there was no need to get into this because on its face it was in federal court and those words lateral transfer probation layoff they are rich with meaning  and to the point just to address it briefly of of the union going out of its way as some kind of evidence look there was a good faith dispute here as to whether plaintiff was intitled to access the grievance machinery so we are stuck with the record we have and plaintiff has pled that you know that the in a lawyer be forced forced the union's hand it doesn't matter because it is a federal claim and there is a good faith dispute between the parties as to what the contract provides and that's why judge ross said this case needed to be in federal court on the question of figure this is simply not the case for debating the finer points of section three zero one preemption and reaching the conclusions of the figaro a court declined to reach a fair reading of figaro is that a state and city can adopt more strenuous protections than the d a four and into enforcing that except we're doing so requires an interpretation of the contract and that's the problem we have here this case requires interpretation of the contract figaro a spoke about a floor provided by the far and a ceiling  against invidious discrimination provided by state and local law this case doesn't come close to meeting the floor the ceiling she simply never pled a claim for invidious discrimination and in looking very closely at the complaint judge r stated that although she put those words in there to say that this was a claim for discrimination there are quote no factual allegations in the complaint that provide even minimal support for the proposition that eleven ninety nine discriminated against or a review it is not it is not but judge rusted correctly conclude that under the artful pleading doctrine the plaintiff's claim raised a federal question and it required interpretation of the collective bargaining agreement a complaint was properly removed to federal court and  thereafter dismissed as a time bardia for claims in the in the collective bargaining agreement the little over ninety nine retain some discretion as to whether to proceed to arbitration but that's not a function of the collective bargaining agreement it's a function of federal law supreme court well by its own constitution and bylaws a process for a second level of review plaintiff pled that her case went to that second level a deliberative body which ruled that the case didn't have merit to move forward in arbitration