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September 4, 1996

RONALD GRABOSKI, et al., Plaintiffs, against RUDOLPH GUILIANI, et al., Defendants. SERAFINO F. VERLARDI, Plaintiff, -against- NEW YORK CITY FIRE DEPARTMENT PENSION FUND, Defendant.

The opinion of the court was delivered by: KAPLAN

 LEWIS A. KAPLAN, District Judge.

 In 1968 and 1970, the City of New York entered into collective bargaining agreements ("CBAs") with the Uniformed Firefighters Association ("UFA") and the Uniformed Fire Officers Association ("UFOA"), respectively. Each provided for the creation of a fund within the fire department pension plan "to provide a supplemental benefit on a variable annuity basis for [certain firemen or fire officers], as determined by the [plan] trustees." Those funds became known as the Variable Supplements Funds ("VSFs"). The implementing legislation, in its current form, limits VSF payments to plan beneficiaries who retired "for service" -- i.e., after putting in the requisite number of years -- on or before October 1, 1968, thus excluding disability retirees among others from the benefit.

 The Graboski plaintiffs allege three principal federal claims. First, they assert that the exclusion of disability retirees from the class eligible to receive VSF payments constitutes discrimination on the basis of disability in violation of Titles I and II of the Americans With Disabilities Act ("ADA"), 42 U.S.C. §§ 12112(a), 12132. Second, they contend that disability retirees were among the intended VSF beneficiaries under the CBAs and that the legislation that limited VSF payments to "for service" retirees violated the Contract and Equal Protection Clauses of the United States Constitution. Third, they assert that the statutory limitation of VSF payments to those who retired on or after 1968 violates the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623. The Velardi plaintiff pursues solely the ADA claims. Given the substantial overlap of issues and facts, the Court has consolidated the dismissal motions.

 In moving to dismiss, the defendants argue that plaintiffs (1) fail, as a matter of law, to state a claim under the Contract and Equal Protection Clauses, (2) lack standing under the ADA and, in any event, fail to state a cognizable claim of discrimination, and (3) failed to exhaust their administrative remedies under the ADEA and, in any case, have asserted no cognizable claim of discrimination. Defendants seek dismissal additionally of several pendent state claims on the merits and, alternatively, for lack of jurisdiction if the federal claims are dismissed.


 As retired firefighters and fire officers (collectively "firefighters"), plaintiffs currently receive benefits under Article I or IB of the New York Fire Department Pension Fund ("FDPF"). Plaintiffs do not, however, fall into the single category of retirees which is eligible for distributions from the VSFs.

 Retirement Categories

 Only firefighters who retired "for service" on or after October 1, 1968 are eligible to receive VSF distributions. N.Y.C. ADMIN. CODE ("CODE") §§ 13-382(5)(a) & (6), 13-385(a)(1), 13-392(6) & (7), 13-395(a)(1) (1995). Plaintiffs fall into one of three other categories of retirement which are not eligible for VSF payments: vested, accident disability, and ordinary disability. The principal requirements and benefits of each category of retirement differ.

 A vested retirement benefit is available to a firefighter who performs at least fifteen but fewer than twenty years of service. A vested retiree receives an allowance equal to 1/40th of the person's final average salary multiplied by the years and days of fire service. CODE § 13-361; Pension Handbook 9-10, 19-20.

 Accident disability retirement, for which a firefighter qualifies if he or she is found unable to perform regular job duties because of an accidental injury received in the line of duty, is generous. A firefighter retiring for accident disability receives a pension of three quarters of the person's final salary, irrespective of the length of the employment. An accident disability retiree who has worked more than twenty years receives additionally a pension equal to 1/60th of the person's total earnings received after the twentieth anniversary. CODE § 13-366; Pension Handbook 22-23.

 Ordinary disability retirement entitles one to an allowance of one-third of the final salary (if fewer than ten years of service) or one half of the final salary (if ten to twenty years of service). To retire for ordinary disability the person must be found unable to perform the regular job duties because of disability, although the disability need not have developed in the line of duty. CODE § 13-363; Pension Handbook 20-22.

 Origination of the VSFs

 The VSFs originated from two CBAs and legislation implementing those agreements, which has been modified several times.

 Collective Bargaining Agreements

 The VSFs had their genesis in the October 1, 1968 CBA between the City and the UFA. In an effort to bridge one of the perennial gaps between labor and management, the City agreed, subject to legislative approval, to invest part of the FDFP in equities rather than fixed income securities and to create a fund from the enhanced return that the parties assumed would be realized. The fund (now called the VSF) would be used to pay additional pension benefits. The pivotal clause of the UFA CBA, Article VII, Section 6, provided in relevant part:

"The City and the Union agree to cause to be paid over to a separate fund, established within the Fire Department Pension Fund, the firemen member portion of the proceeds of the annual yield and capital appreciation realized or unrealized by reason of investment in equities, in excess of the yield which would have resulted from investments such as bonds and mortgages which the Pension Fund is currently purchasing.
"It is further agreed that the maximum permissable [ sic ] amount be so invested as equities without undue impairment for the Article IB Fund by conversion from Fixed Income to Equities. The purpose of this fund shall be to provide a supplemental benefit on a variable annuity basis for Article I and IB firemen, as determined by the trustees. * * *
"It is also agreed that the City and the Union shall jointly sponsor and support appropriate legislation to expand within a reasonable scope the present permissable [ sic ] limits on investments." (Graboski Aff. Ex. 1, at 6) (emphasis added)

 On June 2, 1970, the City entered into an agreement with the UFOA which was, in substance, identical to the agreement with the UFA regarding the creation of a VSF. The italicized portion reappeared verbatim in the UFOA agreement, except that the word "firemen" was replaced by the words "Fire Officer," making the provision relevant to the UFOA's membership. (Id. Ex. 2, at 14)

 Implementing Legislation

 In 1972, the Legislature amended the italicized portions to change "from service" to "for service," explicitly characterizing the changes as corrections of typographical errors. 1972 N.Y. Laws chs. 1011, 1012. In light of the differing implications for eligibility based on retirement "for service" as opposed to "from service," the Graboski plaintiffs make much of the initial wording of chapter 877 of the 1970 New York Laws; they take the position that the Legislature unconstitutionally stripped them of benefits to which they were entitled under the guise of correcting typographical errors. (See Graboski Mem. 7)

 Subsequently, the Legislature has made further changes, such as replacing the trustees' discretion in awarding VSF payments in favor of a fixed payment schedule and codifying the practice of the trustees to limit VSF payments to those who retired on or after October 1, 1968. See, e.g., 1993 N.Y. Laws ch. 480; 1989 N.Y. Laws ch. 583. The Legislature eventually eliminated VSF eligibility for those "who receive a benefit by reason of an option by such a retired [firefighter]," 1993 N.Y. Laws ch. 480; 1989 N.Y. Laws ch. 583. This provision had referred to the survivors or beneficiaries of those retirees who had opted to receive reduced benefits in exchange for creating rights in survivors or beneficiaries to receive a portion of the benefits after the ...

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