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November 14, 1985

THOMAS QUINN, Plaintiff,

The opinion of the court was delivered by: MCCURN



Plaintiff Thomas Quinn brings this action seeking relief from a practice and policy of discrimination based on age in the selection of employees for positions in the Utility Construction & Maintenance Department (UC & M) of defendant New York State Electric & Gas Corporation (NYSE & G). It is alleged that as a result of defendant's practice and policy, plaintiff was subjected to the deprivation of rights secured by the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. (ADEA). Jurisdiction is conferred on this court by 29 U.S.C. § 626(b).

 Plaintiff Quinn was a forty-four year old employee of the defendant at the time this action was commenced. On September 14, 1981, NYSE & G posted a notice that positions would become available in its UC & M training program. The plaintiff applied to enter the training program, but his application was not considered because of his age. At the time the application was made, the defendant had in effect a policy that limited entry into the UC & M training program to those persons under thirty-two years of age. The plaintiff contends that, as a result of this policy, his rights under the ADEA were violated. He seeks injunctive and compensatory relief.

 In its answer to the complaint, NYSE & G admits that it set a maximum age limit for UC & M trainees and that the plaintiff was precluded from competing for a position in the program due to his age. In response to the plaintiff's claims alleging violations of the ADEA, the defendant originally set forth four affirmative defenses: (1) failure to state a claim upon which relief can be granted; (2) exemption of the defendant's training program from the provisions of the ADEA by Equal Employment Opportunity Commission (EEOC) regulation 29 C.F.R. § 1625.13, which permits bona fide apprenticeship programs to be limited to youths; (3) the age limitation is a bona fide occupational qualification within the meaning of 29 U.S.C. § 623(f)(1); and (4) the plaintiff is estopped from challenging an age limitation that is part of a collective bargaining agreement ratified by the plaintiff's union.

 On August 17, 1983, this court held, inter alia, that although "NYSE & G's UC & M apprenticeship and progression program complies with the provisions of 29 C.F.R. § 1625.13 and would be exempt from the prohibitions of the ADEA if that regulation were valid," the regulation conflicts with the language and intent of the ADEA and should not be given effect. Quinn v. New York State Electric and Gas Corporation, 569 F. Supp. 655, 660, 664 (N.D.N.Y. 1983) (McCurn, D.J.). The court proceeded to grant the plaintiff's motion for partial summary judgment, striking the defendant's first, second, and fourth affirmative defenses and denied the defendant's motion for summary judgment. *fn1" Id. at 664.

 On November 7, 1983, the court granted the defendant leave to file an amended answer. That answer, filed on November 28, 1983, sets forth as an affirmative defense:

12. Defendant's Utility Construction & Maintenance Apprentice and Progression Program is a bona fide apprenticeship program which conforms with the requirements of 29 C.F.R. § 1625.13 as published by the Equal Employment Opportunity Commission.
13. In retaining the age limitation for entry into the Utility Construction & Maintenance Apprentice and Progression Program, defendant in good faith relied upon 29 C.F.R. 1625.13 and the redecessor to that section, 29 C.F.R. § 860.106, as published by the Department of Labor.
14. Pursuant to § 7(e) of the Age Discrimination in Employment Act. (29 U.S.C. § 626(e)) and § 10 of the Portal-to-Portal Act (29 U.S.C. § 259), defendant has no liability to the plaintiff in this action.

 The defendant maintains that, when it precluded the plaintiff from competing for a position in the UC & M training program, it was acting in good faith reliance on 29 U.S.C. § 1625.13, and it is therefore protected from liability by the Portal-to-Portal Act defense, 29 U.S.C. § 259, which is made applicable to actions arising under the ADEA by 29 U.S.C. § 626(e). The defendant thus asserts that summary judgment should be granted in its favor.

 The plaintiff argues that the defendant has not established that it is entitled to the protection of the Portal-to-Portal Act defense and that summary judgment should be granted in his favor. Moreover, the plaintiff contends that, in the event that the court does find that the defendant is protected from liability by the defense, it is still within the court's power to grant injunctive relief in favor of the plaintiff and award him attorney's fees.


 When considering a motion for summary judgment, a court must insure that there is no genuine issue as to any material fact, that all reasonable inferences are drawn against the moving party, and that the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c); Equal Employment Opportunity Commission v. Home Insurance Co., 672 F.2d 252, 256-57 (2d Cir. 1982). Further, a case involving a Portal-to-Portal Act defense necessarily involves issues regarding a defendant's state of mind. This court is well aware of the Second Circuit's caution that summary judgment is "rarely appropriate where the moving party's state of mind is a material issue." Id. at 257. However, the circumstances in the instant case differ significantly from those in Home Insurance. Further, Home Insurance does not preclude the granting of summary judgment in all cases where state of mind may be an issue, and in this circuit and others, summary judgment has been found to be an appropriate tool to dispose of cases involving a Portal-to-Portal Act defense. See Marshall v. Atlantic Container Line, G.I.E., 470 F. Supp. 71 (S.D.N.Y. 1979); Clifton D. ...

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