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VERDON v. CONRAIL

August 12, 1993

DENNIS VERDON, Plaintiff,
v.
CONSOLIDATED RAIL CORPORATION, METROPOLITAN TRANSIT AUTHORITY-METRO NORTH COMMUTER RAIL DIVISION, Defendants.



The opinion of the court was delivered by: GERARD L. GOETTEL

 GOETTEL, D.J.,

 This action involves an employment dispute between an individual plaintiff and two railroads. Plaintiff Dennis Verdon is a resident of the State of New York. Defendant Consolidated Rail Corporation ("Conrail") is a Pennsylvania corporation, created by Congress under the Regional Railroad Reorganization Act of 1973 to be a "for-profit corporation" operating as an interstate "common carrier by railroad." 45 U.S.C. § 741(b). Defendant Metro-North Commuter Rail Division ("Metro-North") is a public-benefit corporation which is a wholly owned subsidiary of the Metropolitan Transit Authority ("MTA"), a Public Authority of the State of New York. N.Y. Pub. Auth. L. §§ 1260 et seq. (McKinney's 1982 & Supp. 1992).

 I. FACTS

 According to the complaint, plaintiff worked for Conrail as a trainman on one of its New York City commuter lines from June 11, 1976 until February 11, 1978, when he took a medical leave of absence to obtain drug treatment. At oral argument, defendant Conrail conceded that plaintiff began working for them as a trainman in 1976, but they claim no knowledge of how long he worked for them or by what action he came to leave their employ. The suggestion has been made by Conrail that he may have simply abandoned his position at Conrail, rather than taking a formal medical leave. Plaintiff claims he has been fully rehabilitated from his drug addiction and ready to return to work since August 29, 1986.

 During plaintiff's absence, Conrail underwent substantial change. Conrail had been created in order to reorganize [the] railroads in the [northeast] region into an economically viable system capable of providing adequate and efficient rail service to the region." 45 U.S.C. § 701(b)(2). Unfortunately, by 1981 Congress found that Conrail had failed to become "[the] self-sustaining railroad system in the Northeast" it had envisioned. § 1132(1) of the Northeast Rail Service Act of 1981 ("NRSA"), 45 U.S.C. § 1101(1). Thus, to help bring about a self-sustaining railroad system, Congress enacted legislation which relieved Conrail of its responsibility to provide commuter rail service to the New York metropolitan area. 45 U.S.C. § 1102(2). This responsibility was transferred to "entities whose principal purpose [was] the provision of commuter service." Id. In this process, the Conrail commuter line plaintiff claims to have worked for was transferred to Metro-North, effective January 1, 1983. 45 U.S.C. § 744(a).

 As part of the transfer, Conrail, Metro-North, and the United Transportation Union ("the UTU") *fn1" were required to negotiate an agreement to implement the procedures Congress had legislatively mandated to protect the rights of Conrail employees in the transfer process. § 1145 of the NRSA, 45 U.S.C. §§ 588(a),(b),(c). Under the NRSA, if no agreement were reached by August 1, 1982, the matter would have to be submitted to a neutral referee for mediation; such mediation would be legally binding on all parties. § 1145 of the NRSA, 45 U.S.C. §§ 588(d). Since the parties did in fact fail to reach an agreement, a neutral referee was appointed, and that referee imposed an agreement binding on all parties ("the Implementing Agreement"). Pursuant to this agreement, Conrail train service employees who had been on disability or leave of absence at the time commuter service was transferred to Metro-North had the right "within five working days following their return to service with Conrail, [to] exercise seniority against [junior employees] of Metro-North." Implementing Agreement at § II.C. The agreement also set out the means by which disputes rising out of its provisions were to be resolved. It stated that all disputes which remained unresolved for over 60 days "may be submitted by any of the parties to an Adjustment Board for a final and binding decision thereon as provided for in Section 3, Second of the Railway Labor Act [("RLA" or "the Act"), 45 U.S.C. §§ 151, et seq.]." Implementing Agreement at § X.

 Shortly after the Implementing Agreement was imposed, Metro-North and the UTU entered into a collective bargaining agreement ("the UTU Agreement") which incorporated some of the provisions of the Implementing Agreement, including provisions regarding the "flow through" rights of senior Conrail employees at Metro-North. Defendant Metro-North believed that plaintiff claimed rights in part under this collective bargaining agreement. Plaintiff, however, informs us that he is not claiming any rights under the UTU agreement. *fn2" Instead, he states, he asserts contractual rights solely under the Implementation Agreement and the Act upon which that Agreement is founded, the NRSA. *fn3"

 Plaintiff claims that once he was ready to return to work, he tried to use the Implementation Agreement and the NRSA to obtain an assistant conductor's position at Metro-North -- the approximate equivalent of a trainman position at Conrail -- based on his Conrail seniority, but that his requests were denied. It is this failure to permit plaintiff to "flow through" Conrail to Metro-North as an assistant conductor which forms the basis of the present action.

 Plaintiff claims that thereafter he communicated with Conrail, through his attorney, by telephone and letter "several times" in his efforts to obtain reinstatement. Complaint at paragraph 22. The point at which plaintiff finally made written application to Conrail and Metro-North to become an assistant conductor for Metro-North is indicated by the complaint, and was confirmed at oral argument by plaintiff's attorney to be April 1, 1992. *fn4" Plaintiff claims this request was "timely," but that his request was denied "on the ground that he had not served at Conrail." Complaint at paragraph 28.

 Plaintiff now sues for violation of his rights under the Implementation Agreement and under § 1145 of the NRSA, 45 U.S.C. § 588; for violation of his constitutional rights under color of law under 42 U.S.C. § 1983; and for deprivation of his "vested property rights" *fn5" without due process of law in violation of the Fourteenth Amendment. He seeks declarations that he was employed as a trainman for Conrail from June 11, 1976 to February 10, 1978 and that he is entitled to his "seniority and the attendant transfer rights under the Implementation Agreement." Complaint at paragraph II. Plaintiff also seeks an Order from this court requiring Metro-North to appoint him to the position of assistant conductor; ordering them to give him full back-pay, seniority, and benefits including "all promotions and raises he would have received had he been reinstated to Conrail and transferred to Metro Northon [sic] August 29, 1986," *fn6" the date on which he wrote to Conrail to inform them that he was ready to return to work; and holding it jointly and severally liable with Conrail for "all lost pay, benefits and seniority suffered by plaintiff," *fn7" along with reasonable attorney's fees and costs incurred in prosecuting this action.

 In the motions presently before us, defendant Conrail moves to dismiss plaintiff's NRSA and Implementation Agreement claims for want of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1); to dismiss plaintiff's § 1983 and Due Process claims for failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6); or to alternatively dismiss plaintiff's § 1983 claim as time-barred under the applicable statute of limitations. Defendant Metro-North moves to dismiss all claims for want of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1); to dismiss plaintiff's § 1983 claim for failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6) because the claim is time-barred under the applicable statute of limitations; and for sanctions against plaintiff under Rule 11 of the Federal Rules of Civil Procedure. Not surprisingly, plaintiff opposes all of the above motions. In addition, plaintiff requests leave from this court to amend his complaint to include claims under (1) the Americans with Disabilities Act, as codified at 42 U.S.C. §§ 12101 et seq.; (2) § 296 of the New York Human Rights Law; and (3) § 213 paragraph 8 of the New York Civil Practice Law and Rules ("CPLR"). *fn8" We address the issues raised by the motions to dismiss for want of subject matter jurisdiction first. To the extent that defendants' motions overlap, they will be addressed simultaneously.

 II. DISCUSSION

 A. Dismissal for Lack of Subject Matter Jurisdiction

 Both defendants maintain that this court lacks subject matter jurisdiction over at least some of plaintiff's claims. *fn9" They reason that our hearing of these claims is preempted by the administrative procedures provided for by Congress under the RLA. Defendants argue that these procedures serve as the exclusive "pre-appeal" remedy for plaintiff's present claims since, they contend, plaintiff's claims constitute a "minor" dispute. We agree that the arbitration procedures available under the RLA do preempt our hearing of this case, resulting in a lack of subject matter jurisdiction, but only as to some of plaintiff's asserted claims.

 The RLA was enacted by Congress "to promote stability in labor-management relations by providing a framework for resolving labor disputes in the railroad industry." Milam v. Herrlin, 819 F. Supp. 295, 300-01 (S.D.N.Y. 1993) (quoting Melanson v. United Air Lines, Inc. 931 F.2d 558, 561 (9th Cir. 1991) cert. denied 116 L. Ed. 2d 150, 112 S. Ct. 189 (1991). The Act "establishes an arbitration system that preempts other avenues of securing relief . . . [for] employee[] grievances" rising out of collective bargaining agreements. 819 F. Supp. at 301. Within this arbitration system, the Act divides claims rising out of collective bargaining agreements into two categories: "major" and "minor" disputes. Atchison, Topeka & Santa Fe Railway Co. v. Buell, 480 U.S. 557, 562, 94 L. Ed. 2d 563, 107 S. Ct. 1410 (1986).

 Minor disputes "[are] subject to compulsory and binding arbitration before the National Railroad Adjustment Board [("the NRAB")] . . . or before an adjustment board [("another board")] established by the employer and the unions representing the employees." Consolidated Rail Corp. v. Railway Labor Executives, 491 U.S. 299, 303-04, 105 L. Ed. 2d 250, 109 S. Ct. 2477 (1989) (citing §§ 3 and 3 Second of the RLA, 45 U.S.C. §§ 153 and 153 Second). See, e.g., DeClara v. Metropolitan Transportation Authority, 748 F. Supp. 92 (S.D.N.Y. 1990); Baylis v. Marriott Corp., 843 F.2d 658 (2d Cir. 1988); Andrews v. Louisville & Nashville Railroad Co., 406 U.S. 320, 32 L. Ed. 2d 95, 92 S. Ct. 1562 (1972). One of the terms of this Implementation Agreement created an adjustment board to hear disputes based in the Agreement's provisions, as permitted by Congress under § 3 Second of the RLA, 45 U.S.C. § 153 Second.

 The Supreme Court examined the distinction between major and minor disputes, and articulated a standard for distinguishing between them in Consolidated Rail Corp. v. Railway Labor Executives, supra. Major disputes, the Court explained, involve attempts to change the rights of employees "as a class," Id. at 302 (quoting § 2 Seventh of the RLA, 45 U.S.C. § 152 Seventh), by seeking either to secure a new collective bargaining agreement or to change the terms of an existing one. Id. (citing Elgin, J. & E. R. Co. v. Burley, 325 U.S. 711, 723, 89 L. Ed. 1886, 65 S. Ct. 1282 (1945). Minor disputes, by contrast:

 
relate[] either to the meaning or proper application of a particular provision with reference to a specific situation or to an omitted case. In the latter event the claim is founded upon some incident of the employment relation, or [of] an asserted one, independent of the [provisions] covered by the collective bargaining agreement . . . . In either ...

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