A Bronx bus driver and former union big accused of telling a supervisor he wanted to “oil her down” can’t slip away from a sexual harassment case she lodged against him.
In a blistering opinion issued Tuesday, an appellate court threw out an arbitrator’s decision that let bus driver and union official Tony Aiken avoid a firing because his lewd remarks did not “rise to the level” of sexual harassment.
Judge Sallie Manzanet-Daniels, who wrote the decision for the five-judge panel, lambasted the arbitrator decision as “irrational” and for taking a “’blame the victim’ mentality” that “belies the realities of workplace sexual harassment.”
The arbitrator’s decision, Manzanet-Daniels wrote, “emboldens future harassers to engage in pernicious misconduct, knowing that they are likely to receive little more than a slap on the wrist as punishment.”
Aiken, who had served as a high-level Transport Workers Union Local 100 official, allegedly made sexually explicit remarks to bus dispatcher Tulani Melendez in 2012 at the Kingsbridge depot.
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Aiken allegedly called her “sexy” and “sugar daddy.”
“Isn’t she fine? What would you do if you had a woman like her at home?” Aiken allegedly remarked loudly as bus operators reported to Melendez for assignments. “I wouldn’t leave the house. I would stay in bed all day. I would oil her down.”
After Melendez sent a 13-page complaint to NYC Transit’s Equal Employment Opportunity office the investigation found that that Aiken made unwelcome sexual comments to Melendez. The Transit Authority charged that Aiken created a hostile work environment for Melendez and other female employees.
But an arbitrator initially shielded Aiken from discipline because he was a paid union official. That decision was eventually tossed by the appellate court.
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The case went back to arbitration, where Aiken got a 10-day suspension and an order to take a course on sexual harassment training — a “meager” punishment, the judge wrote Tuesday.
The arbitrator, Stephen O’Beirne, agreed with factual findings in the Transit Authority’s investigation but still rebuffed the agency’s efforts to fire Aiken. O’Beirne blamed Melendez, as a supervisor, for failing to report the harassment sooner, according to the decision.
O’Beirne, the arbitrator, declined to comment Friday.
Arthur Schwartz, representing the union and Aiken, who is no longer a union official, vowed to take the case to the state’s high court, the Court of Appeals.
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He also suggested retaliation by Melendez, arguing she filed the sexual harassment allegations after Aiken complained about her job performance.
“The Appellate Division decision runs contrary to the law that should have been applied to an arbitration award,” Schwartz said.
NYC Transit will keep pushing for termination in a new arbitration the court ordered.
“The arbitrator’s decision had prevented the Transit Authority from terminating an employee who was found to have committed sexual harassment, and instead imposed a penalty of only a 10-day suspension,” MTA spokesman Shams Tarek said in a statement. “As the Court recognized in its ruling, it is critical that the Transit Authority be permitted to effectively enforce policies that protect its employees against workplace sexual harassment.”