The opinion of the court was delivered by: JOHN T. CURTIN
Plaintiff Ronald Jefferlone was an employee of the defendants Canadian Pacific (U.S.), Inc., Canadian Pacific Limited, and Railway Reorganization Estate, Inc., formerly the Delaware and Hudson Railway Company, from 1976 until he was denied the position of trainman/freight conductor in 1990. Item 15 at 2. Plaintiff commenced action in state court, seeking recovery for unlawful employment discrimination based on handicap under the New York Executive Law, Section 296(1)(a) [hereinafter Human Rights Law]. Defendants removed the action to this court on diversity grounds and now move for an Order pursuant to Rule 56(b) of the Federal Rules of Civil Procedure granting summary judgment, on the grounds that: 1) plaintiff's claim for relief under the New York Human Rights Law is preempted by the federal Railway Labor Act ("RLA"); and 2) plaintiff cannot prove a prima facie case of disability discrimination under the Human Rights Law. Item 13.
In 1985, the plaintiff, working as a trainman/freight conductor with the Delaware and Hudson Railway Company, lost his right hand and lower arm in a railway accident. Item 20 at 1. In June 1986, he returned to work as a trainmaster, a management position which at times required him to perform the functions of trainman/freight conductor. Item 20 at 2. A co-worker, Mr. Edward Croteau, personally observed plaintiff performing the duties of trainman/freight conductor after plaintiff had lost his right hand and lower arm. Item 17, Exhibit D.
In June 1988, the Delaware and Hudson Company filed under Chapter 11 of the United States Bankruptcy Code. Canadian Pacific took over the operation of the railroad as an emergency service carrier in August 1990, when plaintiff was informed by Mr. Thomas Waver, General Manager for the Delaware and Hudson Railway Co., that his management position was being eliminated. Item 20 at 2.
Management personnel such as the plaintiff have the right, upon elimination of their jobs, to "bump into bargaining unit positions previously held by such managers." Item 5 at 3. As a result, plaintiff applied to "bump" into the trainman/freight conductor position. Item 20 at 2.
Defendants, in accordance with company policy, required plaintiff to undergo a medical examination for the "safety sensitive" position of trainman/freight conductor. Item 15 at 3. A medical examination was performed by Dr. Chintapa Prabarasuth on August 27, 1990, who found plaintiff qualified for the position of trainman/freight conductor. Item 15 at 4. Dr. Prabarasuth's final report was reviewed by Dr. Gabriel Farah, a medical consultant to Canadian Pacific. Dr. Farah assessed Dr. Prabarasuth's report in light of a job description of the position and determined, without examining the plaintiff himself, that plaintiff could not safely perform the duties of trainman/freight conductor. Dr. Farah also did not order plaintiff to undergo a field test to see whether he could adequately perform the duties of the job, even though the doctor had the authority to do so. Item 20 at 4. A letter dated September 28, 1990, signed by Mr. Waver informed plaintiff that he could not "bump" into the position of trainman/freight conductor. Item 5, Exhibit B.
The trainman/freight conductor positions are bargaining unit positions represented by the United Transportation Union ("Union"), which has a collective bargaining agreement ("CBA") with the defendants. Item 14, Exhibit A. Article 27 of the CBA, entitled "Physical Fitness, Determination of," outlines grievance procedures for employees who are medically disqualified. Relevant sections of Article 27 include:
27.1 (a) When a trainman has been physically disqualified he shall be furnished a copy of the medical report containing the reason for his disqualification.
(b) When a trainman has been physically disqualified and a physician of his choice disputes the medical diagnosis of the Carrier which resulted in the trainman's disqualification, such disqualification may be appealed and a request made for an examination by a neutral physician. . . .
(c) The trainman shall be examined by the neutral physician who shall report his findings in writing to the physician designated by the General Chairman and to the Senior Corporate Advisor, Occupational & Environment Health of the Carrier. The findings of the neutral physician shall be final and binding. . . .
(f) The Carrier shall pay its physician and the trainman shall pay the physician he designates . . .
Item 14, Exhibit A at 21-2. Plaintiff filed wage claims under the grievance procedure outlined in Article 29 of the contract for defendants' refusal to allow him to work as a trainman/freight conductor. Upon the advice of Mr. Samuel Nasca, the State Director of the Union, however, he did not challenge Dr. Farah's determination under Article 27. See Item 18.
Plaintiff then commenced this action, claiming unlawful employment discrimination based on handicap under the Human Rights Law, which states that it is unlawful discriminatory practice "for an employer . . . because of the . . . disability . . . of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in ...