A. The Law Concerning Summary Judgment
The standard for granting summary judgment is well established.
The moving party bears the initial burden of "informing the
district court of the basis for its motion" and identifying the
matter that "it believes demonstrate[s] the absence of a genuine
issue of material fact." Celotex Corp. v. Catrett,
477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ("Celotex").
Summary judgment may be granted if the pleadings and written
discovery, together with the affidavits, show that the moving
party is entitled to a judgment as a matter of law. Fed.R.Civ.P.
56(c) (1999); Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Gallo
v. Prudential Residential Servs. Ltd. Partnership, 22 F.3d 1219,
1223 (2d Cir. 1994) ("Gallo"). The trial court's task at the
summary judgment motion stage is to discern if there are genuine
issues of material fact to be tried, not to decide them; its duty
is "issue-finding," it does not extend to "issue-resolution."
Gallo, 22 F.3d at 1224.
In determining if summary judgment is appropriate, a court must
resolve all ambiguities and draw all reasonable inferences
against the moving party. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538
(1986) ("Matsushita"). If the moving party meets its burden,
the burden shifts to the nonmoving party to come forward with
"specific facts showing that there is a genuine issue for trial."
Fed.R.Civ.P. 56(e) (1999). The nonmoving party must raise more
than just a "metaphysical doubt" as to the material facts.
Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. "If the evidence
is merely colorable or is not significantly probative, summary
judgment may be granted." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250-51, 106 S.Ct. 2505, 91 L.Ed.2d 202. If there is an
absence of sufficient proof as to any essential element on which
the opponent of summary judgment has the burden of proof, any
factual dispute with respect to other elements becomes immaterial
and cannot defeat the motion. Gottlieb v. Co. of Orange,
84 F.3d 511, 519 (2d Cir. 1996) ("Gottlieb").
I. MOOTNESS AND JUSTICIABILITY
Defendants argue that the claims of Boeckle, Kiely, Marinaccio,
McMahon and Zupan are moot because NYNEX, in transferring
employees to TRG, a subsidiary of NYNEX that is a portability
company, continued to treat their years of service with S & T,
Inc. as portable. Hence, they suffered no damage. Although it is
possibly true that such employees could lose portability if they
were, in the future, to terminate employment at a portability
company and join a non-portability company, that possibility is
too speculative and too indefinite to consider as a case or
controversy. Under the doctrine of mootness, discussed below, I
order the claims of these five plaintiffs dismissed.
The mootness doctrine is derived from the constitutional
requirement that federal courts may decide only cases or
controversies. U.S. Const. art. III, § 2; Liner v. Jafco, Inc.,
375 U.S. 301, 306 n. 3, 84 S.Ct. 391, 394 n. 3, 11 L.Ed.2d 347
(1964). A case becomes moot when interim relief or events have
eradicated the effects of the defendant's act or omission, and
there is no reasonable expectation that the alleged violation
will recur. County of Los Angeles v. Davis, 440 U.S. 625, 631,
99 S.Ct. 1379, 59 L.Ed.2d 642 (1979); Martin-Trigona v. Shiff,
702 F.2d 380, 386 (2d Cir. 1983). Although a case may not be moot
if the underlying dispute between the two parties is "capable of
repetition, yet evading review," Nebraska Press Ass'n v.
Stuart, 427 U.S. 539, 546, 96 S.Ct. 2791, 2797, 49 L.Ed.2d 683
(1976), the speculative possibility of future harm is
insufficient to qualify under that standard. Lujan v. Defenders
of Wildlife, 504 U.S. 555,
560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In order to be a
proper plaintiff, one must have a legally cognizable interest in
a matter and that interest must continue throughout the
controversy. Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978, 983,
140 L.Ed.2d 43 (1998); Muhammad v. City of New York Dep't of
Corrections, 126 F.3d 119, 123 (2d Cir. 1997); 19 James Wm.
Moore et al., Moore's Federal Practice § 205.02[a] (3rd ed.
1998). Boeckle, Kiely, Marinaccio, McMahon and Zupan are all in
the same position in which they would have been regardless of S &
T's technical status, and have lost no rights of portability.
Their claims are therefore dismissed. Plaintiffs Stewart, Mazur
and Christie remain, and it is their claims that I examine in the
rest of this decision.*fn4
II. PLAINTIFFS' PORTABILITY ACT CLAIMS:
CLAIMS FOR RELIEF ONE THROUGH FOUR
Under United States v. AT & T, 552 F. Supp. 131 (D.D.C. 1982),
aff'd sub nom., Maryland v. United States, 460 U.S. 1001, 103
S.Ct. 1240, 75 L.Ed.2d 472 (1983) (hereafter, "the AT & T
decision"), AT & T was to divest its local telephone operations
into seven Regional Bell operating companies and divest certain
other companies and assets, effective on and promptly after
December 31, 1983. The AT & T decision, and agreements
thereunder among the affected Bell companies, provided a one-year
window during which employees could be transferred among the
former Bell companies without affecting their accumulated pension
and health and welfare benefits, that is, their portability
The Portability Act extended that window indefinitely for
employees covered under the Act who were transferred after 1984,
subject to the limitations provided by the Act. Section 559(a)
provides for such continuing Portability of "covered
(a) Employee Protection. — Notwithstanding any
provisions of the Divestiture Interchange
Agreement [DIA] to the contrary, in the case of
any change in employment on or after January 1,
1985, by a covered employee, the recognition of
service credit, and enforcement of such
recognition, shall be governed in the same manner
and to the same extent as provided under the
[DIA] for a change in employment by a covered
employee during calendar year 1984.
Portability Act, 98-369, § 559(a) (1984). A "covered" employee
was defined as an employee who-