Delprince v. Sturgis et al

Filing 33

DECISION AND ORDER denying 12 Motion to Dismiss for Failure to State a Claim and granting 18 Motion to Dismiss for Failure to State a Claim. The Clerk of Court is directed to enter judgment in favor of Respondent and close this case. Signed by Hon. Elizabeth A. Wolford on 5/3/2019. (KAC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

MAY 0 3 2019

RICHARD J. DELPRINCE,
Petitioner,
DECISION AND ORDER
V.

I:I8-CV-00648EAW
NORFOLK SOUTHERN RAILWAY

COMPANY,

Respondent.

INTRODUCTION

Petitioner Richard J. DelPrince ("Petitioner") filed this action on June 7, 2018,

requesting judicial review of an arbitration award rendered pursuant to the mandatory
arbitration procedures of the Railway Labor Act("RLA"), 45 U.S.C. § 153, First (q), that
sustained the decision of respondent Norfolk Southern Railway Company ("Norfolk
Southern" or "Respondent")to discharge Petitioner from employment. (Dkt. I). Presently

before the Court are two motions to dismiss: one brought by Kelvin Lockhart, James Ogle,
Joshua Lafferty, and John Maskovac pursuant to Federal Rules of Civil Procedure 12(b)(2),

12(b)(5), and 12(b)(6) on August 29,2018(Dkt. 12); and one brought by Norfolk Southern
pursuant to Rule 12(b)(6) on September 19, 2018 (Dkt. 18). For the reasons that follow,

the Court grants the September 19,2018, motion(Dkt. 18), and denies the August 29,2018,
motion (Dkt. 12) as moot.

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BACKGROUND

The following facts are taken from Petitioner's Amended Petition (Dkt. 30), the

operative pleading in this matter, and the documents referenced therein.' As is required at
this stage ofthe proceedings, the Court treats Petitioner's allegations as true.
Petitioner was employed by Respondent as a locomotive engineer for 18 years. {Id.
at

1, 13). On February 3, 2016, Petitioner was working as the engineer on a train

travelling between Binghamton and Buffalo, New York. {Id. at 13). He noticed that the

locomotive had a problem with its sanders,^ and he attempted to report the problem to the
dispatcher on the company-provided radio which was not working properly. {Id.). He then
used his personal cellphone to call the dispatcher instead and was told to proceed with his
assignment. {Id.). Petitioner placed his cellphone in his jacket pocket and hung the jacket
on the back of his seat, but forgot to tum it off. {Id. at

13, 15).

Petitioner's train approached an unannounced banner test, which is when railroad

officials drop an "obstruction banner" in front of moving trains to test the engineer's ability

'

On a motion to dismiss,"[t]he court may consider facts set forth in exhibits attached

as part of the [petition] as well as those in the formal [petition] itself." Chance v.
Armstrong, 143 F.3d 698, 698 n.l (2d Cir. 1998); see Cortec Industries, Inc. v. Sum
Holding L.P., 949 F.2d 42, 47(2d Cir. 1991)("[T]he [petition] is deemed to include any
written instrument attached to it as an exhibit or any statements or documents incorporated
in it by reference."). The Amended Petition states that the decision ofthe Arbitration Board

at issue is attached as Exhibit A (Dkt. 30 at ^ 2), and that an excerpt from the transcript of
the arbitration hearing is attached as Exhibit B {id. at ^ 6). While no exhibits are attached
to the Amended Petition, they are attached to the original petition. (Dkt. 1). Therefore,
the Court considers the original petition's exhibits in rendering the instant Decision.

^

Sanders are systems that use air to blow sand underneath the wheels oflocomotives

to increase traction.
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to stop.(Mat^ 18). Petitioner properly stopped his locomotive,and three ofRespondent's
officials boarded the train to conduct a job briefing. (Dkt. 1-1 at 3). When the railroad
officials asked whether Petitioner's cellphone was turned off, he said that he did not know

and then removed the phone from his jacket pocket. {Id.). It was determined that the
cellphone was still on, and Petitioner was later removed from service and underwent a

formal investigation. {Id. at 3-4). At the conclusion of the investigation. Respondent
summarily fired Petitioner. (Dkt. 30 at ^ 19).
Petitioner appealed Respondent's decision to Public Law Board No. 7717 (the
"Board"). (Dkt. 1-1 at 2). On May 2, 2017, the Board sustained the decision to dismiss
Petitioner from employment. (Dkt. 30 at ^ 1). It found Petitioner was in violation of

Respondent's Operating Rule 5, which requires, pursuant to federal regulations, that "all

personal electronic devices, including earpieces, must be turned off and stored out of sight
and not on the employee's person when on a moving train or engine[.]" (Dkt. 1-1 at 4);

see 49 C.F.R. §§ 220.302, 220.305, 220.315. The decision stated: "It is not an acceptable
excuse that [Petitioner]'s failure to turn off his phone might have been inadvertent," and
also discussed Petitioner's previous disciplinary record. (Dkt. 1-1 at 4-5).

Petitioner filed the instant lawsuit on June 7, 2018, naming as respondents W.L.
Sturgis, K. Lockhart, J.P. Ogle, Josh Lafferty, John J. Maskovac, and the Board. (Dkt. 1).

On August 29,2018, respondents Kelvin Lockhart, James Ogle, Joshua Lafferty, and John

Maskovac filed a motion to dismiss. (Dkt. 12). Petitioner filed an amended petition on
September 5, 2018, wherein Norfolk Southern was named as the only respondent. (Dkt.
15). Norfolk Southern filed a motion to dismiss on September 19, 2018. (Dkt. 18). On

November 13, 2018, Petitioner filed a response to Respondent's motion to dismiss. (Dkt.
27). Petitioner also filed a motion for leave to file a corrected amended petition to fix a
scanning error causing a missing page, to which Respondent consented. (Dkt. 28). The
Court granted Petitioner leave to file the corrected amended petition (Dkt. 29), and the

complete Amended Petition was then filed on November 15, 2018(Dkt. 30). Respondent
filed its reply to Petitioner's response on November 20, 2018. (Dkt. 31).
DISCUSSION

As a preliminary matter, while the original petition did name Kelvin Lockhart,
James Ogle, Joshua Lafferty, and John Muskovac as respondents (Dkt. 1), the Amended
Petition (Dkt. 30) only names Norfolk Southern. Accordingly, the Court denies as moot
the August 29, 2018, motion to dismiss(Dkt. 12).
I.

Legal Standard

"In considering a motion to dismiss for failure to state a claim pursuant to Rule
12(b)(6), a district court may consider the facts alleged in the [petition], documents
attached to the [petition] as exhibits, and documents incorporated by reference in the
[petition]." DiFolco v. MSNBC Cable LLC,622 F.3d 104, 111 (2d Cir. 2010). A court

should consider the motion by "accepting all factual allegations as true and drawing all
reasonable inferences in favor ofthe plaintiff." Trs. of Upstate N.Y. Eng'rs Pension Fund
V. Ivy Asset Mgmt.,843 F.3d 561, 566(2d Cir. 2016), cert, denied, 137 S. Ct. 2279(2017).

To withstand dismissal, a claimant must set forth "enough facts to state a claim to relief

that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A
claim has facial plausibility when the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct alleged."
Turkmen v. Ashcroft,589 F.3d 542,546(2d Cir. 2009)(quoting Ashcroft v. Iqbal, 556 U.S.
662,678(2009)).

"While a [petition] attacked by a Rule 12(b)(6) motion to dismiss does not need

detailed factual allegations, a plaintiffs obligation to provide the grounds of his
entitle[ment] to reliefrequires more than labels and conclusions, and a formulaic recitation

of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal
quotations and citations omitted). "To state a plausible claim, the [petition]'s '[f]actual
allegations must be enough to raise a right to relief above the speculative level.'" Nielsen
V. AECOMTech. Corp., 762 F.3d 214, 218(2d Cir. 2014)(quoting Twombly, 550 U.S. at
555).
11.

Judicial Review of the Board's Decision

Congress enacted the RLA "to provide for the prompt and orderly settlement of all

disputes" between railway carriers and their employees. 45 U.S.C. § 15 la. To accomplish
this, the RLA imposes different dispute resolution procedures for "major" and "minor"
disputes. See United Transp. Union v. Nat'I R.R. Passenger Corp., 588 F.3d 805, 809(2d
Cir. 2009). A dispute is considered "major" if it relates '"to disputes over the formation of
collective agreements or efforts to secure them,' while 'minor disputes''contemplate[]
the
existence of a collective agreement already concluded or, at any rate, a situation in which
no effort is made to bring about a formal change in terms or to create a new one.'" Id. at

809-10(quoting Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 723 (1945)).

"Major" disputes require "voluntary processes of negotiation, mediation, voluntary

arbitration, and conciliation" and are subject to judicial review on the merits. Id. (quoting
Elgin, 325 U.S. at 725); see Consol. Rail Corp. v. Ry. Labor Execs.'Ass'n, 491 U.S. 299,
302-03 (1989). In contrast, minor disputes are exclusively handled by labor-management
adjustment boards—either the National Labor Relations Board, or regional boards of
adjustment established by agreement between employees and carriers. 45 U.S.C. § 184,

see Indep. Union ofFlight Attendants v. Pan Am. World Airways, Inc., 789 F.2d 139, 141
(2d Cir. 1986). The Second Circuit has held that "disciplinary disputes even if involving
employee discharge" are minor disputes. Pan Am. World Airways, 789 F.2d at 141.

The RLA allows for limited judicial review of a labor board's ruling on a minor
dispute, providing as follows:
On such review, the findings and order ofthe division shall be conclusive on
the parties, except that the order ofthe division may be set aside, in whole or

in part, or remanded to the division, for [1] failure ofthe division to comply
with the requirements of this chapter, for [2] failure ofthe order to conform,
or confine itself, to matters within the scope ofthe division's jurisdiction, or
for [3] fraud or corruption by a member ofthe division making the order.
45 U.S.C. § 153, First(q).

The scope ofjudicial review of a labor board's decision is "among the narrowest
known to the law." Union Pac. R.R. Co. v. Sheehan, 439 U.S. 89, 91 (1978)(quotation

omitted). "[Wjhere fraud is not an issue we ask only whether the arbitrators did the job

they were told to do—not whether they did it well, or correctly, or reasonably, but simply

whether they did it." CSX Transp., Inc. v. United Transp. Union, 950 F.2d 872, 877(2d
Cir. 1991); see United Transp. Union, 588 F.3d at 810("The federal courts do not sit as

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super arbitration tribunals in suits brought to enforce awards of the Adjustment Board.
They may not substitute their judgments for those of the Board divisions. They need not
inquire whether substantial evidence supports the Board's awards."(quotation omitted)).
"[OJnce the court is satisfied that they were interpreting the contract,judicial review is at
an end, provided there is no fraud or corruption and the arbitrators haven't ordered anyone

to do an illegal act." Trans World Airlines, Inc. v. Sinicropi, 887 F. Supp. 595, 612
(S.D.N.Y. 1995)(alteration in original) (quotation omitted), aff'd, 84 F.3d 116 (2d Cir.
1996). "[T]he Supreme Court 'time and again has emphasized and re-emphasized that
Congress intended minor grievances of railroad workers to be decided finally by the
Railroad Adjustment Board.'" United Transp.

588 F.3d at 810.

Petitioner contends he is entitled to judicial review under all three prongs of § 153,
First (q). The Court addresses each one in turn.
A.

Failure to Comply

"Typically, a federal court's review ofboard decisions under the 'failure to comply'

prong has been limited to determining whether boards have complied with the RLA's
procedural obligations." United Transp. Union, 588 F.3d at 811. These procedural
obligations include giving parties due notice of the board hearing, 45 U.S.C. § 153, First

(j), and submitting a "full statement of the facts and all supporting data bearing upon the

disputes" to the board, id. § 153, First (i). The Second Circuit has also found judicial

review appropriate under this prong when a labor board decides whether a carrier complied
with specific provisions of the RLA. United Transp. Union, 588 F.3d at 811. However,

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absent these circumstances, the Court may not review the arbitration award for failure to
comply. See CSX Transp., 950 F.2d at 877.

Petitioner alleges that Respondent failed to comply with the requirements of the
RLA because Respondent "did not follow or comply with the legal contract." (Dkt. 27-3
at 6; see Dkt. 30 at ^ 2(1)). Petitioner asserts that the collective bargaining agreement

Respondent entered into with Petitioner's union (the "CBA")included various procedural
requirements for the disciplinary investigation and hearing conducted by Respondent, and
that Respondent failed to adhere to those CBA requirements. (Dkt. 27-3 at 10-12).
Petitioner contends that because the proceedings conducted by Respondent violated the

CBA,and the CBA was negotiated pursuant to the RLA's requirements,then Respondent's

proceedings violated the RLA.^ {Id. at 6; Dkt. 30 atf 4). Petitioner also contends that the

^

Petitioner characterizes his objections to Respondent's actions during the

investigatory hearing as "due process" objections, although he does not claim that the
award is subject to judicial review under due process grounds. (Dkt. 27-3 at 12). While
this Circuit recognizes that due process violations during an arbitration award hearing may
warrant judicial review of an arbitral award under § 153, First (q). Second Circuit courts
have held that those due process protections do not extend to /?re-arbitration internal
procedures specified in a particular collective bargaining agreement. See Martino v. Metro
N. Commuter R.R. Co., 582 F. App'x 27, 29 (2d Cir. 2014)(summary order)(exercising
jurisdiction over a due process challenge to an arbitration);
v. N.Y., New Haven &
HartfordR.R.,338 F.2d 701,702(2d Cir. 1964)(holding that carrier employee was entitled
to an impartial proceeding before the Board, but not during an internal proceeding with the
carrier); Dominguez v. Miller, No. 12 Civ. 231 (CBA),2013 WL 703193, at *8(E.D.N.Y.

Jan. 18, 2013)(declining jurisdiction over due process claims regarding pre-arbitration
proceedings), report and recommendation adopted, 2013 WL 703176(E.D.N.Y. Feb. 26,
2013); Christiani v. Metro-North Commuter R.R. Co., No. 92 Civ. 4494(JFK), 1994 WL
74881, at *5(S.D.N.Y. Mar. 7, 1994)(same).
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Board violated the RLA by relying on Respondent's illegally-conducted proceedings.
(Dkt. 30atTf4).

Petitioner's argument is without merit."* He does not contend that the Board failed
to comply with a specific procedural provision of the RLA or issued a decision about

whether Respondent complied with provisions ofthe RLA. Instead, his argument centers
around Respondent's alleged lack ofcompliance with various procedures in the CBA,and
the Board's rejection ofthat argument. {See Dkt. 1-1 at 5; Dkt. 1-2 at 11-13). The Board's

decision about whether Respondent complied with the procedures in the CBA required it
to interpret the CBA,and therefore it is precisely the type ofdecision where the Court must

defer to the Board'sjudgment. See Segal v. Trans World Airlines, Inc.,63 F. Supp.2d 373,
380 (S.D.N.Y. 1999) (holding plaintiffs disagreement with arbitrator's assessment of

evidence and allegations that arbitrator misinterpreted the CBA were not sufficient to

vacate arbitration award);see also Bhd. ofMaint. ofWayEmps. Div./IBT v. Norfolk S. Ry.
Co., 745 F.3d 808, 815 (7th Cir. 2014)("[T]he [plaintiff] is not asking us to interpret a
federal statute but to interpret its collective bargaining agreement—^what constitutes a fair

"*

Petitioner relies on an unreported decision from the Northern District of Georgia,

.see Thompson v. NorfolkS. Ry. Co., No. 1:13-CV-1555-CC, 2015 WL 1509483(N.D. Ga.
Mar. 31, 2015), as well as a Fifth Circuit case. Grimes v. BNSFRy. Co., 746 F.3d 184(5th
Cir. 2014). The Court finds neither of these opinions persuasive in this context. Both
Thompson and Grimes discussed claims pursuant to the Federal Rail Safety Act("FRSA"),
not the RLA. The Grimes court addressed how much weight should be given to arbitration
board decisions in suits brought pursuant to the FRSA, and states in the decision: "The

RLA makes the arbitral findings conclusive on the parties in the dispute governed by the
RLA." Id. at 187-88. As the claim brought in the instant lawsuit is governed by the RLA,
the Grimes decision does not support Petitioner's position, but refutes it. Additionally,
Thompson applied the Grimes decision to a retaliation claim pursuant to the FRSA, and
therefore also has no bearing on the instant matter.
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and impartial hearing—a function exclusively reserved for a RLA Adjustment Board."
(quotation omitted)).

Accordingly, the Court finds that Petitioner's allegations are not sufficient for the

Court to review or set aside the arbitration award under the "failure to comply" prong.
B.

Scope of the Board's Jurisdiction

"The Board's jurisdiction extends to all disputes between carriers and their
employees growing out of grievances or out of the interpretation or application of
agreements concerning rates of pay, rules, or working conditions[.]" Union Pac. R. Co. v.

Bhd. ofLocomotive Eng'rs and Trainmen Gen. Comm. ofAdjustment, Cent. Region, 558
U.S. 67, 82(2009). "For a court to find that an adjustment board exceeded its jurisdiction,
the award must be 'wholly baseless and completely without reason.'" Sokolowski v. Metro.

Transp. Auth., 849 F. Supp. 2d 412, 416 (S.D.N.Y. 2012)(quoting Gunther v. San Diego
& Ariz. E. Ry. Co., 382 U.S. 257, 261 (1965)), aff'd, 529 F. App'x 48 (2d Cir. 2013).
"Where fraud is not at issue, the court's inquiry is limited to the sole issue of'whether the

arbitrators did the job they were told to do—not whether they did it well, or correctly, or
reasonably, but simply whether they did it.'" Segal, 63 F. Supp. 2d at 380 (quoting CSX
Transp., 950 F.2d at 877).

Here, the Board adjudicated a dispute between a carrier. Respondent, and an
employee. Petitioner, over whether Respondent's decision to dismiss Petitioner was

arbitrary or unreasonable under the CBA. (Dkt. 1-1 at 5). Such a decision falls squarely
within the jurisdiction of the Board. Additionally, the Court has reviewed the arbitration
decision attached as Exhibit A to the Petition(Dkt. 1-1), and on its face,the Board's award
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was a reasoned application ofthe relevant cellphone usage rules to the facts ofthe February

3,2016 incident. The Board details the undisputed facts, including that Petitioner reported
the Sander problem on his cellphone and then subsequently forgot to turn the phone off,
then discusses Respondent's cellphone use rules, and then finds that Petitioner violated the

rule and dismissal was warranted. {Id.). Whether the Court agrees with the outcome of
the Board's decision is not relevant,see United Transp. Union,588 F.Sd at 810;the Court's
inquiry is limited to whether the Board did its job,see CSXTransp.,950 F.2d at 877. The
Court finds that the Board here plainly satisfied that standard.

Petitioner contends that the Board went outside its jurisdiction by "ignoring the
discipline clause" in the CBA and by considering matters outside ofthe "facts before the
Board," namely a 2008 train collision that occurred in Chatsworth, an individual's

propensity to answer a ringing cellphone, and the prior disciplinary record of Petitioner.^
(Dkt. 27-3 at 12, 14; Dkt. 30 at 112).

^

Petitioner cites a case from the District of Arizona in support of his argument that

arbitration awards should be set aside if not drawn exclusively from the contract. (Dkt.
27-3 at 16). However,the Arizona court held the award "must have a basis that is at least

rationally inferable ... from the letter or purpose ofthe collective bargaining agreement,"
Bradford v. Union Pac. R.R. Co., 872 F. Supp. 2d 912, 919 (D. Ariz. 2012)(emphasis
added), not drawn exclusively. The court also rejected the arguments Petitioner makes

here: "that the [board] erroneously failed to find a due process violation in the on-property
investigation hearing, erroneously concluded that the Hearing Officer's decision was
supported by substantial evidence and erroneously concluded that the discipline was
reasonable." Id. at 919 n.4. The court found that the plaintiff, much like Petitioner, was
attempting to use the jurisdictional prong of § 153, First(q)"as the basis for challenging
the merits ofthe [board]'s findings." Id.
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The Court is not persuaded by Petitioner's arguments. As discussed previously, the
Court cannot analyze whether the Board correctly construed or applied the CBA; it may

only determine if the Board did so at all. Additionally, none of the topics raised by
Petitioner that were referenced by the Board fall outside the scope of the Board's
jurisdiction. The Board discussed the Chatsworth collision and the tendency for an
individual to answer a ringing phone to provide context for why Respondent implemented
and enforced the no cellphone usage rule. (Dkt. 1-1 at 4). "Moreover, it is well established
that an employee's past disciplinary record is a relevant factor to be considered in

determining the type and propriety of discipline assessed." Polewsky v. Nat'I R.R.
Passenger Corp., 812 F. Supp. 33, 37(D. Vt. 1992), aff'd, 993 F.2d 1532(2d Cir. 1993).

Petitioner does not allege that the RLA or CBA contain a provision that prohibits the
arbitrator from considering matters of general knowledge in the industry or an employee's

prior disciplinary record when issuing an award.^ See Martina v. Metro N. Commuter R.
Co., No. 3:10cvl816(JBA),2013 WL 3208548, at *9(D. Conn. June 24,2013)("Plaintiff

has not alleged any factual matter about the authority of the arbitrator ..., and therefore
the Court cannot draw any reasonable inference that the neutral arbitrator... exceeded

their authority."), aff'd, 582 F. App'x 27 (2d Cir. 2014). Accordingly, the Court finds

^

Petitioner also alleges that he was fired as punishment for reporting the sanding

issue, and that the award failed to comply with the RLA because it allowed for such
retaliation. (Dkt. 30 at 14-15). However,the RLA does not address retaliation; rather,

the FRSA establishes a private right of action for railroad employees claiming retaliation.
49 U.S.C. § 20109(d). Petitioner does not allege a FRSA claim, and the statute of
limitations for such a claim has long since run. Id. § 20109(d)(2)(A)(ii).
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Petitioner has not plausibly alleged that the Board exceeded the scope of its jurisdiction in
issuing the award.
C.

Fraud or Corruption of Member of the Board

To state a claim for review on the grounds of fraud or corruption, plaintiff must
plausibly allege "that an arbitrator 'exhibit[ed] a complete unwillingness to respond, and
indifference, to any evidence or argument in support of one of the parties' positions.'"
Dominguez v. Miller, No. 12 CV 231(CBA)(LB), 2013 WL 703193, at *8(E.D.N.Y. Jan.

18,2013)(alteration in original)(quoting Pac. & Arctic Ry. AndNav. Co. v. United Transp.
Union, 952 F.2d 1144, 1148 (9th Cir. 1991)), report and recommendation adopted, 2013
WL 703176(E.D.N.Y. Feb. 26, 2013).

In Petitioner's Amended Petition, he fails to point to any statements made by an

arbitrator on the Board that demonstrate he or she was indifferent or completely unwilling
to respond to evidence presented. To the contrary, the award issued by the Board states,
"we have given consideration to the [Petitioner]'s various arguments and find them to be
unpersuasive." (Dkt. 1-1 at 5). The fact that the Board rendered an award unfavorable to

Petitioner provides no basis for a fraud or corruption claim. See Smith v. Am. Eagle

Airlines, Inc., No. 07 CV 3363(NG)(RER), 2008 WL 2600857, at *4 (E.D.N.Y. July 1,
2008)(finding there was no fraud because "the Arbitration Award makes clear that the

Board was not indifferent to plaintiffs arguments, but considered his version ofevents and

found them not the least bit credible"(quotation omitted)).

Instead, Petitioner alleges that the decision of the Board "was the result of a give

and take 'horse trading system'" where the arbitrators deny reinstatements in discharge
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cases in favor of carriers and rule for laborer's unions in less costly cases so that they will
keep their jobs. (Dkt. 30 at

21-24). However,Petitioner fails to allege facts that, iftrue,

would demonstrate such a system existed. Petitioner acknowledges as much in his
response papers, where he asks for the opportunity "to at least examine the question as to

whether [Petitioner]'s case was decided on the merits or was part ofa give and take win/loss
process." (Dkt. 27-3 at 18). Such conclusory allegations are not sufficient to "raise a right

to relief above the speculative level." ^ Twombly, 550 U.S. at 555.
Accordingly, the Court finds Petitioner's Amended Petition does not plausibly
allege facts sufficient for a fraud or corruption claim. As there are no grounds that allow
for judicial review of the arbitration award, the Court grants Respondent's motion to
dismiss.
CONCLUSION

For the foregoing reasons, the Court grants the September 19, 2018, motion to
dismiss(Dkt. 18), and denies the August 29,2018, motion to dismiss(Dkt. 12). The Clerk

of Court is directed to enter judgment in favor ofRespondent and close this case.

'

Even if Petitioner did allege such facts, at least one court in this Circuit has found

that alleged remarks by a neutral arbitrator expressing "concern that if she did not issue

decisions and rulings in [the carrier's] favor she would be fired and her future employment
in arbitrations with [the carrier] would be jeopardized" only demonstrate "'partiality' and
do not rise to the level of'fraud or corruption.'" Camilien v. Am. Airlines, Inc., No. 99CV-1953, 1999 WL 1288955, at *2(E.D.N.Y. Nov. 5, 1999).
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so ORDERED.

"^
UZA^f^X WOLE^RD
United^tates District Judge
Dated:

May 3, 2019
Rochester, New York

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