Defendant further contends that the lease drivers were merely "independent contractors," and not "employees" of the defendant for purposes of the ADEA; therefore, defendant argues, differences in the treatment of commission drivers and lease drivers are insignificant and do not suggest unlawful discrimination. In the alternative, defendant asserts that even if lease drivers are considered "employees" under the ADEA, they entered into their employment relationship and leasing arrangements, not with the defendant, but with its wholly-owned subsidiary, Glenties Leasing ("Glenties"), a corporation that is not a party in this action.
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.
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.
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.
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 has submitted some charts as well as lists to show the average age of commission drivers and lease drivers during various sample weeks prior to plaintiff's discharge. See Kennel Aff., Exhs. 1-8. Specifically, plaintiff has compiled data culled from three random weeks during the last 16 months of his employment, based upon index cards and computer printouts received from Dover, Glenties, and the Taxi and Limousine Commission. Kennel Aff., at 2. Plaintiff does not state the reasons for choosing the three particular weeks to compile this information on the average ages of the drivers.
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 will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 321, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
As a preliminary matter, defendant claims that any comparison between the lease drivers and the commission drivers is flawed because the lease drivers are "independent contractors" with Glenties, rather than "employees" of Dover. To support this argument, defendant points to the terms of the CBA providing for the different treatment and benefits for lease drivers and commission drivers, as well as to the IRS opinion letter stating that lease drivers will not be considered Glenties' employees for federal income tax purposes. Plaintiff insists that both groups of drivers are more appropriately classified as "employees" under the ADEA, and that Glenties is merely the alter ego of Dover.
Both of these issues raise questions of fact sufficient to preclude summary judgment. On the issue of corporate separateness, defendant has come forward with some evidence that Dover was separate from Glenties in that only Glenties handled the lease driving arrangements. The burden thus shifts to the plaintiff "to come forward with persuasive evidence that his claim is not 'implausible.'" See Binder, 933 F.2d at 191 (quotation omitted); see also Linskey v. Heidelberg Eastern, Inc., 470 F. Supp. 1181 (E.D.N.Y. 1979) (parent and subsidiary corporation single entity for purposes of ADEA where their activities "so closely related as to constitute an integrated enterprise"). Plaintiff has met this burden. It is undisputed that the President and the Manager of both corporations are the same. Both corporations use the same taxicabs interchangeably, use the same dispatchers, and operate out of the same garage. Both corporations were parties to the same collective bargaining agreement. On this evidence, a reasonable trier of fact could find that an alter ego relationship existed between Dover and Glenties; accordingly, summary judgment on this issue would be inappropriate. See William Passalacqua Builders, Inc. v. Resnick Developers, Inc., 933 F.2d 131 (2d Cir. 1991) (corporate disregard is fact issue for jury).
With respect to the status of the lease drivers, the definition of "employee" found in the ADEA is uninstructive, providing only that an employee is "an individual employed by an employer." 29 U.S.C. § 630(f). In instances, such as here, where the statutory definition is unhelpful, the Supreme Court has established a presumption that Congress "means an agency law definition for 'employee' unless [the statute] clearly indicates otherwise." Nationwide Mut. Ins. Co. v. Darden, 117 L. Ed. 2d 581, 112 S. Ct. 1344, 1349 (1992) (citing Community for Creative Non-Violence v. Reid, 490 U.S. 730, 104 L. Ed. 2d 811, 109 S. Ct. 2166 (1989)) (for common law definition of "employee" courts should look to general common law of agency rather than the laws of agency of any particular state). Under this standard, a court looks specifically to "the hiring party's right to control the manner and means by which the product is accomplished," Reid, 490 U.S. at 751, although the extent of control alone is not dispositive. A non-exhaustive list of other factors to consider in this inquiry includes:
(a) the skill required in the particular occupation;
(b) the source of the instrumentalities and tools for the work;