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March 18, 1993

DOVER GARAGE, INC., Defendant.

The opinion of the court was delivered by: RAYMOND J. DEARIE

 DEARIE, District Judge.

 Plaintiff Richard Kennel brings this action against his former employer under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., seeking recovery for alleged age discrimination on theories of both disparate treatment and disparate impact. Kennel also alleges a parallel state law age discrimination claim under N. Y. Exec. Law § 296 et seq.1 On the federal ADEA claim, Kennel seeks to be reinstated to his former position with back pay and applicable benefits; on the state law claim, he seeks back pay with benefits, plus compensatory and punitive damages. For the reasons that follow, defendant's motion for summary judgment is granted.

 Plaintiff was employed by defendant Dover Garage, Inc. ("Dover"), from 1979 until his discharge in April of 1987. Affidavit of Richard Kennel ("Kennel Aff."), dated Apr. 14, 1992, at 1. Plaintiff claims that as a member of a group of "commission" taxi drivers working for Dover -- drivers earning wages based upon a percentage of their cab fare bookings -- he was treated less favorably and regulated more harshly than a group of "lease" taxi drivers at Dover -- drivers who paid a set fee to lease a cab from the garage in exchange for the right to retain all of their bookings. Principally, plaintiff alleges that, beginning in 1987, commission drivers were required to be at work by 6 a.m. every morning to start their day shift, (the "6 a.m. rule"), while the lease drivers were not subject to the same strict starting times. Plaintiff contends that the lease drivers were generally younger than the commission drivers, and that as a result the different shift start requirements imposed upon the two classes of taxicab drivers constitutes unlawful age discrimination. Plaintiff refused to comply with the 6 a.m. rule, and in April of 1987, after several warnings, he was discharged for repeated lateness.

 Defendant responds that to the extent the 6 a.m. rule was enforced against the commission drivers, legitimate business reasons existed for this different treatment. The employer paid benefits to the commission drivers that were not paid to the lease drivers, and earned profits in proportion to the commission drivers' bookings; in return the garage expected the commission drivers to start the day shift promptly to ensure maximum cab fare bookings during the morning rush hour. No similar business incentive existed with respect to the lease drivers, who paid to the garage a set daily fee for the use of a cab, regardless of the number of hours they worked or the amount of bookings earned.

 Whether the lease drivers are "independent contractors" or "employees," and whether Glenties is merely the alter ego of Dover, are factual issues that cannot be resolved at the summary judgment stage. However, assuming arguendo that the lease drivers were employees, and had entered into their employment relationship with defendant Dover, plaintiff's age discrimination claim will not survive the summary judgment stage for other reasons. With respect to the disparate treatment claim, plaintiff has offered no "significant probative evidence," see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), to support the view that age was a determinative factor in the defendant's decision to discharge him, nor has he offered evidence that defendant's stated reasons for the imposition of the 6 a.m. rule were pretextual. Moreover, at oral argument, upon questioning from the Court, plaintiff essentially acknowledged that the instant claim is most aptly characterized as a "disparate impact" claim. And, as to the disparate impact claim, plaintiff has failed to submit evidence -- statistical or otherwise -- that establishes that the defendant's regulations or practices had an unlawful discriminatory effect on older, commission drivers in violation of the ADEA.


 This action arises against the backdrop of New York City's transformation of its taxicab industry in the early 1980s. Many of the relevant facts are undisputed. Prior to 1980, taxicab drivers employed by Dover operated as commission drivers only, earning money according to a percentage of their daily bookings. However, following an industrywide acceptance of "lease driving" in New York City -- where garages would lease individual medallion cabs to drivers who would then keep their own bookings -- Dover offered to their commission drivers the opportunity to elect at any time to become lease drivers with Glenties Corporation, a wholly-owned subsidiary of Dover managing the lease driving arrangements and operating out of the same garage. Under this new leasing system, the garage no longer depended on the productivity of its drivers for revenue. Affidavit of Mark Cohen, dated Dec. 13, 1991 ("Cohen Aff."), at P 9.

 This new arrangement was effectuated through a Collective Bargaining Agreement (the "CBA"), between the Metropolitan Taxicab Board of Trade (the "Board"), of which Dover was a member, and the Taxi Drivers and Allied Workers Union, Local 3036 (the "Union"), effective December 1, 1983. *fn2" After this effective date, Dover hired no new taxicab drivers as commission drivers. Dover's commission drivers were permitted to stay on in their current status, or become lease drivers with Glenties. See CBA, Art. XLVII, § 5; Cohen Aff., at P 10. The CBA explicitly established that lease drivers were governed by different rules than the commission drivers. Compare CBA, Art. III, § 1 (employer retains right to control, inter alia, scheduling, discipline, and the "starting and quitting time and number of hours to be worked" of its employees) and CBA, Art. III, § 3 (employer may adopt reasonable rules and regulations to administer work) with CBA, Art. III, § 4 ("None of the provisions contained in Section 1 or 3 of this Article III shall pertain to lessees who shall be independent contractors not subject to the direction or control by the Company.").

 If a commission driver failed to arrive for his shift on time, that driver would lose the right to a "steady car" -- that is, a car guaranteed to him as long as he reported to work punctually or had earlier called to explain any lateness. See Deposition of Richard Kennel ("Kennel Depo."), at 241. The commission driver would then have to wait for a car on the "first-in, first-out" basis applicable to the lease drivers. The commission drivers also received certain health, pension, and similar benefits; the lease drivers received none of these additional benefits. Kennel Aff., at 1. *fn3" In 1981, Glenties requested and received an opinion letter from the IRS stating that the lease drivers were not employees of Glenties for federal income tax purposes. See Exh. 2, Letter dated Feb. 25, 1981, attached to Affidavit of Merrill A. Mironer ("Mironer Aff."), dated Dec. 16, 1991.

 Defendant Dover employed plaintiff as a taxicab driver from 1979 until April of 1987. Plaintiff drove a cab on the day shift. Prior to January of 1987, the 6 a.m. start time was not rigorously enforced; in general drivers were only disciplined if they arrived after 7 a.m. Cohen Aff., at P 14. Beginning in January, however, Dover notified the drivers that they would be disciplined for arriving late, and applied this new policy of enforcement strictly when commission drivers arrived after 6 a.m. *fn4" Plaintiff did not comply with the new policy, and arrived for work repeatedly and intentionally after 6 a.m., see Kennel Depo., at 119; in fact, he never once arrived on time after January 1, 1987. Id. at 246; Defendant's Rule 3(g) Statement, at P 15. In his deposition, plaintiff explained that he lived in New Jersey and that in order to arrive before 6 a.m. he would have to get up at 4 a.m. Kennel Depo., at 246-50. Moreover, because he believed that the new policy was wrong and unfair, he refused to adhere to it. Id. at 119, 242, 257-58, 278, 279. Mark Cohen, the day shift manager of the garage, sent to plaintiff repeated written warnings regarding his lateness. See Cohen Aff., Exh. 3. Additionally, plaintiff was previously suspended for driving an overheated cab on November 12, 1986. See Mironer Aff., Exh. 3, at 2.

 Plaintiff filed a union grievance protesting, inter alia, the November suspension and the enforcement of the 6 a.m. rule against the commission drivers. In early April of 1987, plaintiff received a copy of the Arbitration Award in that proceeding, holding that plaintiff's November suspension was justified, and that plaintiff's "difficulties were brought on [not due to age discrimination, but] by his continued lateness and apparent refusal to accept the fact that an employer, in the absence of a contract bar, may set uniform starting times for shifts." Exh. 3 to Mironer Aff., Award dated Apr. 6, 1987; see also Kennel Depo., at 256-57 (plaintiff received copy of award but did not agree with it). Following receipt of the decision, plaintiff continued to arrive late, and after further warning from Cohen was discharged on April 18, 1987. He was forty-six years old.

 On June 25, 1987, Kennel filed an age discrimination complaint with the Equal Employment Opportunity Commission ("EEOC"). On August 22, 1988, the EEOC issued to Kennel a "right-to-sue" letter. See Exh. 5 to Mironer Aff. This action followed.


 Plaintiff contends that his discharge for excessive lateness was part of a pattern of discrimination against commission drivers he alleges were predominantly older than the lease drivers, and generally over forty years of age. Plaintiff alleges that the defendant unreasonably enforced the 6 a.m. rule against only older commission drivers, and that he purposefully rebelled against the 6 a.m. rule. Kennel Depo., at 242 ("I was at variance with a rule, which, as stated, did not seem to apply to everyone as practice."); see also id. at 249 ("I started seriously to question the legitimacy of what was stated in the contract").

 Plaintiff estimates that in these three sample weeks, the average age of the lease drivers was 39, 38, and 41, respectively. Plaintiff also has generated a graph showing the comparative ages of the two groups of drivers at different times during 1986 and 1987, see Kennel Aff., Exh. 8, and has concluded that during this 16-month period "the average age of the commission drivers ranged from 56-66; the average age of lease drivers ranged from 38-41." Kennel Aff., at 4. Plaintiff further has compiled a list of drivers who were still working as commission drivers "some time" in 1986, see Kennel Aff., at 3, & Exh. 1, which reflects their average age as 56. At the end of 1986, there were 15 commission drivers still employed with Dover, fourteen of whom were over 40 years of age. Cohen Aff., at P 12. Since that time, all remaining commission drivers have either switched to lease driving or quit. Kennel Aff., at 6.


 Summary judgment may be granted where there is no genuine issue of material fact and "the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed 2d 538, 106 S. Ct. 1348 (1986); Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988). In reviewing a plaintiff's discrimination claim, the court proceeds cautiously, almost suspiciously, before granting a defendant's motion for summary judgment. Viewing the evidence in the light most favorable to the non-movant, summary judgment is appropriate only if no rational trier of fact could find for the non-movant. See Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991).

 At the same time, however, the existence of a factual dispute alone is insufficient to defeat a motion for summary judgment; the non-moving party must offer significant probative evidence tending to support its position. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Summary judgment may be entered against any party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party ...

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