The union representing subway workers is pushing the New York City Transit Authority to reinstate a member who was suspended for allegedly possessing and distributing child pornography, according to a new lawsuit.
In February, maintenance worker Kevin Foster was arrested and charged with promoting a sexual performance by a child and possessing a sexual performance by a child, both felonies, the legal papers say.
Several weeks later, Foster was suspended and brought up on disciplinary charges, the suit claims.
In May, Foster pleaded guilty to obscenity, a misdemeanor, and, with the help of Transport Workers Union Local 100, appealed the disciplinary charge, the documents state.
An arbitrator ruled in July that there was just cause to discipline Foster, but that the penalty of dismissal was excessive and that the appropriate penalty was a time-served suspension with no back pay, the court papers say.
The arbitrator further ruled that Foster should be returned to work on the condition that he continue participation in court-ordered rehabilitation.
But according to the lawsuit, Foster has yet to be reinstated, and remains suspended without pay.
“NYCTA’s actions have caused injury to Mr. Foster, whose pay and pension rights have been compromised,” the lawsuit says.
“The grievance arbitration provision was in the contract, the parties agreed to arbitrate the issues, and the arbitrator interpreted the contract and based his decision on actual provisions of the contract. As a result, it should be enforced.”
Nothing in the union’s contract with the Transit Authority mandates that an employee who plead guilty to a misdemeanor obscenity charge be terminated from employment, according to the lawsuit.
If anything, public policy requires that employers hire people convicted of crimes in the past, the union argues.
A union spokesman had no immediate comment on the lawsuit.
Foster’s initial arrest came after a search warrant was issued in connection with the possession, storage and transmission of images of children engaging in sexually explicit conduct, according to a lawsuit exhibit.
As a condition of his guilty plea to the obscenity charge, Foster was sentenced to three-years probation, and was forced to forfeit the cell phone on which the pornographic material had been allegedly downloaded.
Foster, 43, has been a Transit Authority cleaner for more than a decade. The arbitrator said his conduct occurred off duty and off premises.
An MTA representative did not immediately respond to a request for comment.