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May 5, 2000


The opinion of the court was delivered by: McMAHON, District Judge.


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 November 24, 1990, the Union's Vice President, Defendant Robert Novy, filed a written grievance with the MTA contending that the seniority list violated the terms of the CBA. In particular, the grievance challenged the seniority date for those officers who had passed the 1989 sergeants examination. Plaintiff was named as one of the officers participating in the grievance. The MTA rejected this grievance, on the ground that, pursuant to the CBA, the proper vehicle for challenging a seniority list is a "roster protest," which is distinguishable from a grievance under the CBA.

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 Plaintiff's behalf.

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 Paul's letter.

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 sergeants.

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 1998.

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 them."

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 Article 30.

(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." ...

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