effect or impact and the burden shifts to the defendant to show a legitimate non-discriminatory justification or business necessity for the controversial action. If the defendant succeeds, the plaintiff may still prove its case by showing that other non-discriminatory means to achieve the same purpose are available to the defendants. Scelsa, 806 F. Supp. at 1141.
To demonstrate disparate effect on minorities, Plaintiffs rely on the affidavit of Robert A. Paaswell, the Director and Chief Executive Officer of the University Transportation Research Center ("UTRC"), which provides an analysis of the subsidies provided to the NYCTA and the commuter lines in 1994 in several ways: a) by comparing total revenue passengers to the total subsidies received by the two systems; b) by determining the total subsidy per revenue passenger; c) by determining the total subsidy per revenue vehicle mile (per subway car, train car, or bus); d) by determining the total subsidy per revenue passenger mile; and e) by measuring how much of the total cost of operation of a transit system is recovered by the fares paid by its passengers (the farebox operating ratio). Four out of five of Mr. Paaswell's bases for analysis ((a),(b),(c) and (e)), if appropriate tests for comparison, show that the passengers of the NYCTA are currently under-subsidized vis a vis the passengers of the commuter lines. Mr. Paaswell further argues that the most relevant calculation is (e), what he calls the farebox operating ratio, which measures how much of a transit system's operating costs are recovered by passenger fares. He asserts that (d), the subsidy per passenger mile/operating costs ratio, another method used to measure the percentage of costs paid by the passenger, is inappropriate because the economic transaction is a trip "from point to point" and results in distortion because the average trip on a commuter line is over five times as long as the average trip on the NYCTA. (Id. PP 23-30.)
The opposing affidavit of MTA Budget Director, Gary Caplan, submitted by the MTA states that the revenue per passenger mile/operating costs ratio (the reverse of the subsidy per passenger mile/operating costs ratio) is best used to measure the comparative benefits of NYCTA and the commuter lines. (Caplan Aff. P 18.) Mr. Caplan asserts that under this calculation the commuter rail subsidy per revenue passenger mile in 1994 was $ 0.193 and in 1995 $ 0.195, as opposed to $ 0.205 for the NYCTA in 1994 and $ 0.200 in 1995. (Id. at P 19, Ex. L.)
At the hearing, Mr. Caplan testified that Mr. Paaswell's calculation of the farebox operating ratio for the NYCTA and the commuter lines was misleading since it did not take total costs into account, particularly interest, depreciation, and amortization, and in certain instances the costs of providing police services. (Tr. 111.) He also stated that the farebox operating ratio was appropriate for measuring an agency's performance against prior years, but was not appropriate for measuring agencies against one another. Mr. Caplan contended that the farebox recovery ratio is a more comprehensive method of measuring revenue versus cost since it includes the costs of debt service and is "the ratio that you use for comparing agencies to agencies."
(Tr. 110-111.) Accordingly, Mr. Caplan pointed out that in 1994 the farebox recovery ratio for the NYCTA was 46.3%, for the Metro North the ratio was 44.4%, and for the LIRR the ratio was 38.1%.
Mr. Caplan also stated that Mr. Paaswell's discussion of farebox operating ratios, comparing fares and costs, for 1994, (Paaswell Aff. PP 27, 39, Ex. 2 at IV-A-18), was flawed in that it did not reflect the cost of transit police which, if included, would have dropped the NYCTA farebox operating ratio in 1994 from 58.9% to 51.6%, slightly less than the ratio for Metro North, 52%. (Tr. 116.)
At the hearing, Mr. Caplan produced, at the request of the Court, the MTA's calculation of the farebox recovery ratios for 1996, assuming the proposed fare increase went into effect. (See Plaintiffs' Exhibit 2.) Mr. Caplan stated that these figures were distributed to the MTA/NYCTA boards of directors when they considered the fare increases proposed by the MTA staff. (Tr. 149-150.) Exhibit 2 shows that the projected farebox recovery ratios, which the MTA uses to compare the agencies within the MTA, are as follows:
Farebox Recovery Ratios
1995 1996 1999
August, YTD Forecast Forecast
NYCTA 48.3% 60.5% 54.6%
LIRR 38.2% 40.8% 41.6%
Metro North 47.4% 49.6% 49.8%
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