The opinion of the court was delivered by: McMAHON, District Judge.
MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT AND/OR DISMISSAL
Plaintiff Donald Parker, a police officer with the Metro-North
Commuter Railroad ("Metro-North"), brings claims for age and
disability discrimination against: (1) the Metropolitan
("the MTA"), Metro-North Commuter Railroad Company
("Metro-North") (collectively "the MTA Defendants") and (2) the
Metropolitan Transportation Authority Police Benevolent
Association, the Metro-North Police Benevolent Association, the
Railroad Police Benevolent Association, and Metro-North PBA
President Robert Novy (collectively "the Union Defendants").
Plaintiff was denied promotion to the rank of sergeant after
Metro-North removed his name from an internal sergeant promotion
list pursuant to the collective bargaining agreement ("CBA") in
effect between Metro-North and Plaintiff's union, Defendant
Metropolitan Transportation Authority Police Benevolent
Association ("the Union"). Plaintiff brings claims under (1) the
Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621,
et seq.; (2) the Americans with Disabilities Act ("ADA"),
42 U.S.C. § 12101, et seq.; (3) 42 U.S.C. § 1981 and 1981a; and
(4) New York State Executive Law § 296 ("the New York Human
The MTA Defendants have moved for dismissal pursuant to
Fed.R.Civ.P. 12(b)(1), or, in the alternative, summary judgment.
The Union Defendants have also moved for summary judgment.
Defendants' motions are disposed of as follows: summary judgment
is (1) granted as to the MTA Defendants; (2) granted as to
Plaintiff's ADA and ADEA claims against Defendant Novy; (3)
denied with respect to Plaintiff's remaining claims against the
Union Defendants. The proof at trial, however, shall be limited
in accordance with this ruling.
(1) Plaintiff's Employment
Plaintiff Donald Parker was hired by the MTA in 1963 as a
railroad police officer on a predecessor company to the
Metro-North Railroad, a position he continues to hold at the
present time. Plaintiff was 68 years of age at the time
Defendants filed their motions, and is the most senior police
officer in the Metro-North Division of the MTA Police Department.
Plaintiff is currently represented by Defendant Metro-North
Police Benevolent Association (i.e., "the Union"), and was
represented by its predecessor unions throughout his employment.
(a) Plaintiff's Attempt to Gain Promotion to Sergeant
During the first quarter of 1989, when Plaintiff was 58 years
of age, Plaintiff took and passed the MTA's written examination
for the position of sergeant. At the time, Plaintiff reported for
duty in Poughkeepsie, New York. Plaintiff and the 28 other
officers who passed the exam were placed on a sergeants promotion
list as of May 22, 1989. Pursuant to the collective bargaining
agreement ("CBA") in force between Metro-North and the Union,
applicants on the promotion list were ranked according to their
composite test scores, and were selected for promotion as
vacancies became available, starting from the top of the list.
Plaintiff's composite test score was 75, which ranked 26th out of
the 29 applicants on the list. The CBA also provides that
applicants who pass the exam may receive up to 10 points toward
seniority. Plaintiff received the maximum 10 points.
At the time Plaintiff was placed on the list, he was the oldest
police officer in the Metro-North Division. Between 1989 and
early 1998, all of the officers on the promotion list, except for
Plaintiff and one other applicant, were promoted to sergeant.
On January 16, 1991, Novy filed a roster protest, in which
Plaintiff was named among the grieving officers, contending that
the officers listed on the May 22, 1989 sergeants promotion list
should be granted seniority as of the date those officers passed
the examination. The MTA rejected the roster protest by letter
dated May 29, 1992.
On October 31, 1991, Plaintiff underwent by-pass surgery,
requiring him to miss work from the month of September 1991, or
thereabouts, until December 13, 1991. When Plaintiff returned to
his job, he was temporarily reassigned to "light duty" in
Yonkers. This light duty included reporting to the Poughkeepsie
station from his home nearby, picking up the railroad mail,
bringing it to Yonkers, where Plaintiff did telephone and desk
work, and returning to Poughkeepsie with the mail at the end of
the day. In mid-January 1992, Metro-North's medical department
cleared Plaintiff for regular duty, and Plaintiff returned to his
Poughkeepsie work site. Plaintiff contends, however, that
Defendants regarded him as disabled, due to his by-pass surgery,
after his return to regular duty.
In December 1991, while Plaintiff was performing his "light
duty" assignment, an MTA representative telephoned Plaintiff and
orally offered him a sergeant's position in Grand Central
Terminal, some 80 miles from Plaintiff's work site in
Poughkeepsie. The CBA permits an officer to decline a promotion,
without losing his seniority or standing on the promotion list,
if the "reporting point" for the new position is located more
than 30 miles from the officer's present reporting point.
Accordingly, Plaintiff, who had previously reported to
Poughkeepsie, declined the position at Grand Central, which is
located more than 30 miles from Poughkeepsie.
When Plaintiff rejected the offered sergeant position, the
assignment clerk who had called Plaintiff told him that his name
would be taken off the sergeant promotion list. Plaintiff
testified at his deposition that he understood from this
conversation that Metro-North did not view the offered position
as falling within the 30-mile rule. Specifically, Metro-North
maintains that Plaintiff's reporting point, at the time he was
offered the sergeant's position, was Yonkers, which is located
within 30 miles of Grand Central Terminal. Plaintiff was not
offered another sergeant position.
Plaintiff immediately contacted his Union representative, John
Sisia, claiming that his name should not have been removed from
the promotion list under the CBA's 30-mile rule. Plaintiff also
complained to his commanding officer, Captain Joseph Greco.
Plaintiff contends that these complaints amounted to oral
grievances under the CBA, and that Metro-North failed to respond
to those oral grievances. Metro-North, however, claims that
Plaintiff filed no grievance concerning his removal from the
promotion list at any time. The Union did not file a grievance on
On August 12, 1994, Plaintiff made a roster protest to
Metro-North over his exclusion from the 1994 sergeant seniority
roster. Andrew J. Paul, Assistant Director of Labor Relations,
informed Plaintiff by letter dated November 16, 1994, that
Plaintiff was entitled to seniority only on the police officer
roster. Paul testified that he did not recall signing the letter,
and that he had no files or other documentation to support the
determination that Plaintiff was not entitled to seniority on the
sergeant roster. Plaintiff testified that he was aware he would
not be placed on the sergeant seniority roster after receiving
Plaintiff also testified that he presented an oral grievance to
his union representative, Robert Hilkin, after receiving Paul's
letter, but that Metro-North failed to respond to his grievance.
Again, Metro-North contends to the contrary that Parker
did not file a grievance after receiving this letter.
(b) The Promotion of James Lennon
Police Officer James Lennon took the sergeant's examination at
the same time as Plaintiff. Lennon ranked 12th on the promotion
roster, and received 9 points toward seniority. Lennon was
offered a sergeant's position on June 9, 1992, but declined it,
and was informed that his name would be taken off the promotion
list because the offered position was located within 30 miles of
Lennon's reporting location.
On June 24, 1992, Lennon filed a written grievance over the
removal of his name from the promotion list. Lennon argued that
Metro-North had violated a number of CBA provisions governing
seniority and promotion in offering him a sergeant's position
before offering it to others who already held seniority as
Metro-North denied Lennon's grievance and appeal. In its letter
denying the appeal, the Labor Relations Department relied upon an
October 1998 Letter of Understanding, which amended the CBA by
providing that seniority in a particular promotion grade was not
effective until the date of actual promotion. Lennon's grievance
eventually settled, on condition that Lennon be promoted to
sergeant without back pay. Lennon was promoted to sergeant in May
Plaintiff complained about Lennon's promotion in a telephone
call to Novy. Plaintiff testified that Novy responded, "you old
fuck, keep your mouth shut, don't rock the boat, I got all I can
do to keep you on this damn job," and told Plaintiff not to "take
any action to get sergeant stripes just because Jimmy Lennon got
Plaintiff also claims that he was the subject of disparaging
comments from other employees that were directed to his age and
heart condition. Plaintiff testified that Sergeant Scott Bierce
said to Plaintiff on various occasions, "are you still working,
ain't you retired yet, for crying out loud," "how are you gonna
perform your duties," "aren't you dead yet," and "why the hell
don't you retire, you old bastard, what are you still doing
here." Plaintiff also testified that Union Trustee-Delegate
Robert Hilcken said to him, "why in the hell don't you retire,"
and that Sergeant Robert Turret, an Inspector Niland and Captain
Alan Kenwood made similar remarks urging Plaintiff to retire.
Hilcken was eventually reprimanded by Metro-North management for
his comments to Plaintiff.
Sergeant Lennon gave similar testimony, stating that he heard
several disparaging references to Plaintiff's age and health
between 1989 and the present. For example, Lennon testified that
a Captain Skopin told him that Plaintiff might be a danger to
himself and to other officers due to his age. Lennon related
similar comments from Hilcken, Niland, Kenwood, and a Sergeant
Ferrett. In addition, Lennon testified that when he asked Novy
why Plaintiff had not been promoted to sergeant, Novy responded,
"Forget about Parker . . . He's too old. I had to cut a special
deal with [Director of Labor Relations] Ray Burney . . . just to
keep him working." Lennon further testified that an unidentified
MTA Labor Relations Representative believed that Plaintiff should
be promoted, but was told that Burney would not "go for that."
Finally, Plaintiff points out that he is the only police
officer among the roughly 30 to 35 officers in the Seventh
District, where he is assigned, who has not been provided
training in use of the "Glock" pistol. All of the officers who
have received Glock pistol training are younger than Plaintiff.
Plaintiff contends that the failure to train him in use of the
pistol constitutes age discrimination.
The CBA contains a non-discrimination clause, which provides
that "there will be no discrimination against any officers
because of race, color, creed, national origin or sex," but makes
no provision for age or disability discrimination.
(2) The Collective Bargaining Agreement
(a) The Sergeant's Examination and Promotions List
Article 1 of the CBA governs seniority. Article 1, Section 1
sets forth three "seniority classes": lieutenants, sergeants, and
police officers. Section 4 requires that seniority rosters of
officers be revised and posted "at a place available to all
officers." An officer has 30 days from the date his or her name
first appears on the roster to file a protest with the Director
of Labor Relations concerning the officer's seniority date,
standing on the roster, or omission of his name from the roster.
Article 2 sets forth the procedures for promotions. Section 1
provides that officers must complete two years of service before
they are eligible to take the test for promotion to sergeant. The
test includes a competitive written examination and an oral
examination before a review board consisting of a representative
of the Chief of Police, an incumbent sergeant, and a neutral
party chosen by agreement between the Union and Metro-North.
Following the examination, the sergeants promotion list,
consisting of names of officers who passed the examination, is
posted. Successful candidates receive a maximum credit of 10
points for seniority, and their names are ranked on the promotion
list on the basis of their composite test scores.
Article 2, Section 7 provides that promotions are offered as
vacancies become available. When an advertised vacancy is not
filled by a sergeant who already has seniority, the Police
Department is required to notify the officer whose name appears
at the top of the sergeants promotion list and offer him or her
the job. If the officer does not accept the position, the Police
Department removes the officer's name and offers the position to
the next officer on the list.
An officer is not required to accept a vacancy located more
than 30 miles from his or her "present reporting point," and will
not lose his or her place on the promotion list or seniority if
the officer declines to accept such a vacancy.
(b) The Letter of Understanding
The CBA was amended by a Letter of Understanding between the
Union and Metro-North dated October 17, 1988. The Letter of
Understanding provides that, with respect to the sergeants
examination to be administered in January 1989, "[s]eniority in
promotion grade shall not be established until the date of actual
promotion to the rank of Sergeant." Defendants contend that the
removal of Plaintiff's name from the promotion list was in
accordance with the Letter of Understanding.
(c) Claims and Grievances — Article 14
Article 14 allows an officer or his Union representative to
file a written grievance within 30 days of the occurrence on
which his grievance is based. Plaintiff states in his brief that
since July 11, 1992, the CBA's grievance clause allows grievances
to be presented orally as well as in writing by an officer to his
or her "Commanding Officer," but Plaintiff has provided no
documents or other evidence of such an amendment. If Metro-North
denies the grievance, it has 30 days to provide a written
explanation of the reasons for the denial. The Union then has 30
days to appeal the denial to the Labor Relations Department.
If the Labor Relations Department denies the grievance, the
Department has 30 days to issue a written statement of the
reasons for the denial. The Union then has 30 days to request
that an impartial arbitrator decide the matter, as provided under
(d) Impartial Arbitrator — Article 30
Article 30 provides for the appointment of an impartial
arbitrator, who has "exclusive jurisdiction over all final
appeals in claims for compensation, discipline proceedings, or
any dispute concerning the
interpretation of [the] Agreement." ...