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QUINN v. NEW YORK STATE ELEC. & GAS CORP.

August 17, 1983

THOMAS QUINN, Plaintiff, v NEW YORK STATE ELECTRIC AND GAS CORPORATION, Defendant.


The opinion of the court was delivered by: MCCURN

NEAL P. MCCURN. D.J.

MEMORANDUM-DECISION AND ORDER

 Plaintiff Thomas Quinn, a 44 year old employee of defendant New York State Electric and Gas Corportation ("NYSE & G") was rejected in his application to enter a training program for a position in the Utility Construction and Maintenance ("UC & M") Department because of a policy of the defendant to accept only those under 32 years of age into the program. He claims that this policy violates the Age discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA"), and seeks injunctive and compensatory relief.

 Quinn alleges in his complaint that on September 14, 1981, NYSE & G posted notice that positions would become available in the UC & M Department; that he bid for a position but was rejected; that five persons with less seniority were eventually selected; that the defendant's collective bargaining agreement expressly restricts training for UC & M positions to those under age 32; that he had not been allowed to compete for the position because of his age.

 In NYSE & G's answer to the complaint, it admits the existence of a maximum age requirement for UC & M trainees, and further admits that the plaintiff was not allowed to compete for the position on an equal basis because of his age. *fn1" However, defendant denies depriving the plaintiff of any rights under the ADEA, asserting four affirmative defenses: (1) the complaint fails to state a claim upon which relief can be granted; (2) the program is exempt from the provisions of the ADEA under EEOC regulation, 29 CFR § 1625.13, which permits "bona fide apprenticeship programs" to be limited to youths; (3) the age limitation is a bona fide occupational qualification ("BROQ") within the meaning of 29 U.S.C. § 623(f)(1); and (4) plaintiff is estopped from challenging an age limitation that is part of a collective bargaining agreement ratified by plaintiff's union.

 The Court now has before it cross-motions for summary judgment. Plaintiff's motion seeks only partial summary judgment, striking defendant's first, second, and fourth affirmative defenses. Defendant seeks judgment in its favor based on its second affirmative defense.

 As set forth below, the Court has determined that the UC & M Apprentice and Progression Program is a bona fide apprentice and program within the meaning of 29 CFR § 1625.13, but that such regulation is inconsistent with the language, purpose, and history of the ADEA, and is not to be given effect. The Court therefore grants plaintiff's motion for partial summary judgment, and denies defendant's motion for summary judgment.

 I.

 The affidavits and exhibits submitted by NYSE & G thoroughly describe the background and nature of the UC & M Apprentice and Progression Program. The program was first established in 1958, under the terms of a "Memorandum of Agreement" between NYSE & G and the union which represents its production employees (System Council U-7 of the International Brotherhood of Electrical Workers). The original Memorandum limited admission to the program to individuals under the age of 30, but the age limit was increased to 32 by amendment in 1973. The program rules which were operative in 1981 when Quinn's application was rejected are set forth on pp. 102-106 of the 1981-82 Agreement between NYSE & G and the union.

 The UC & M Apprentice and Progression Program consists of on-the-job training, extensive reading assignments, and periodic testing for a training period of five years, with over 144 hours of instruction in each year. The program emphasizes less skilled and less complicated tasks during the beginning months and gradually leads the trainee through the highly skilled and complex activities which are a part of the First Class UC & M job classification. Advancement in the program is contingent on the trainee receiving satisfactory appraisals and passing each of the periodic tests.

 Those who successfully complete the various stages of the program are eligible for promotion to a position in the UC & M Department commensurate with their level of training. 1982-1983 Agreement P9. When a first or second class vacancy in the UC & M Department exists, NYSE & G will fill it from within the company whenever possible. Id. at 10. Under certain circumstances, a vacancy will be filled from among qualified applicants on the basis of seniority. Id. at 12.

 Both Broome Community College and Cortland Community College offer course credit toward various technical degrees for satisfactory completion of the UC & M Apprentice and Training Program.

 II.

 It is evident from the statements submitted pursuant to Local Rule 10(c) as well as from the other materials submitted by the parties on these motions that there is no genuine issue as to any material fact, and that the issues for determination by the Court are issues of law. *fn2"

 Turning first to plaintiff's motion, the Court has little hesitation in granting summary judgment striking two of the three affirmative defenses challenged herein. The first, that "the plaintiff's complaint fails to state a claim upon which relief can be granted," is plainly insupportable. Such defense challenges the facial sufficiency of the complaint, and dismissal on such grounds is not justified unless "it appears beyond doubt that the plaintiff can prove no set of facts which would entitled him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Cayuga v. Cuomo, 80-CV-930, slip op. at 29 (N.D.N.Y. 1983) (McCurn, D.J.).

 Plaintiff has set forth in his complaint all of the elements necessary for a claim under the ADEA. The only challenges advanced by the defendant to the claim are those in its remaining three affirmative defenses. Two of those, however -- the bona fide apprenticeship program and the BFOQ defenses -- require the Court to consider matters outside of the complaint, and could in no event furnish a basis for dismissal for failure to state a claim. 5 Wright & Miller, Fed. Prac. & Proc. § 1356 at 592 (1969 ed.).

 The fourth affirmative defense, estoppel, may arguably be characterized as a challenge to the complaint on its face. However, it is insufficient as a matter of law. A discriminatory policy is not immune from challenge by an employee by virtue of its incorporation in a collective bargaining agreement. Levine v. Fairleigh Dickinson University, 646 F.2d 825, 832 (3d Cir. 1981). Cf. Alexander v. Gardner-Denver, 415 U.S. 36, 39 L. Ed. 2d 147, 94 S. Ct. 1011 (1974) (Title VII rights and remedies are distinct from and independent of those secured through collective bargaining); Air Line Pilots Ass'n, Int'l v. Trans World Airlines, Inc., No.'s 82-6266, 6306, 6280 (2d Cir. Aug. 1, 1983), slip op. at 5445 n.17 (determination of rights under collective bargaining agreement did not resolve issues pertaining to ADEA claim).

 Thus summary judgment against NYSE & G is warranted with respect to its first and fourth affirmative defenses. Plaintiff's remaining challenge on this motion, to the second affirmative defense, requires that the court determine whether the defendant's UC & M Apprentice and Progression Program is a "bona fide apprenticeship program" within the meaning of 29 CFR § 1625.13; and if so, whether that exemption is a valid administrative interpretation of the ADEA.

 III.

 The administrative exemption for "bona fide apprenticeship programs", set forth at 29 CFR § 1625.13, provides:

 Age limitations for entry into bona fide apprenticeship programs were not intended to be affected by the A.D.E.A. Entry into most apprenticeship programs has traditionally been limited to youths under specified ages. This is in recognition of the fact that apprenticeship is an extension of the educational process to prepare young men and women for skilled employment. Accordingly, the prohibitions contained in the Act will ...


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