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O'BRIEN v. BOARD OF EDUC. OF DEER PARK UNION FREE

January 24, 2001

RICHARD O'BRIEN, ET AL., PLAINTIFFS,
v.
BOARD OF EDUCATION OF THE DEER PARK UNION FREE SCHOOL DISTRICT DEER PARK PUBLIC SCHOOLS, DEFENDANT. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PLAINTIFF, V. DEER PARK UNION FREE SCHOOL DISTRICT, DEFENDANT.



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

MEMORANDUM AND ORDER ON RECONSIDERATION

Plaintiffs in this consolidated action claim that a provision of the Defendant Deer Park Union Free School District's collective bargaining agreement that governs sick leave accumulation for the purpose of retirement payment violates, inter alia, the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., as amended by the Older Workers Benefit Protection Act of 1990 (OWBPA), Pub.L. No. 101-433, 104 Stat. 978 (codified at 29 U.S.C. § 621, 623), because it reduces the amount of accumulated sick leave paid to teachers formerly employed by the school district on the basis of their age.

By Memorandum and Order dated March 29, 2000, this Court (1) granted the O'Brien Plaintiffs' motion for summary judgment in Case No. 94-CV-4695 as to liability only; (2) granted the EEOC Plaintiff's motion for summary judgment in Case No. 95-CV-0092 as to liability only; (3) denied the Defendant Deer Park Union Free School District's cross motions for summary judgment in Case Nos. 94-CV-4695 and 95-CV-0092; and (4) denied Defendant Deer Park Union Free School District's cross-motion for leave to amend its Answer in Case No. 95-CV-0092. O'Brien v. Board of Educ., 92 F. Supp.2d 110 (E.D.N.Y. 2000). Familiarity with that decision is assumed.

On April 12, 2000, Defendant Deer Park Union Free School District ("Defendant") moved this Court to reconsider its March 29, 2000, decision, arguing (1) that because the Court, in reaching its decision, misinterpreted or misapplied the decision of the United States Court of Appeals for the Seventh Circuit in Karlen v. City Colleges, 837 F.2d 314 (7th Cir. 1988), the Court should grant the Defendant's motion for reconsideration, and, upon reconsideration, grant Defendant's cross-motions for summary judgment against the O'Brien and EEOC Plaintiffs in Case Nos. 94-CV-4695 and 95-CV-0092; (2) alternatively, to the extent the Court determines that it misinterpreted or misapplied the decisional law in Karlen such that Defendant may be able to establish an affirmative defense to Plaintiffs' prima facie showing of age discrimination under 29 U.S.C. § 623(f)(2)(B)(ii), the Court should at least grant Defendant's motion for reconsideration, and, upon reconsideration, grant Defendant's cross-motion for leave to amend its Answer in Case No. 95-CV-0092 so as to allow Defendant to establish that defense; and (3) that the recent decisions of the United States Supreme Court in Kimel v. Florida Board of Regents, 528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000), the United States Court of Appeals for the Second Circuit in Butler v. New York State Department of Law, 211 F.3d 739 (2d Cir. 2000), and the United States District Court for the Eastern District of New York in Hamad v. Nassau County Medical Center, No. 98-CV-4320 (E.D.N.Y. Mar. 20, 2000) (slip op.) (Seybert, J.), require the Court to dismiss this action as against Defendant for lack of subject matter jurisdiction on the grounds of Eleventh Amendment immunity.

For the reasons stated by the Court on the record after oral argument on December 22, 2000, the Court denied Defendant's motion to dismiss the action on Eleventh Amendment immunity grounds and reserved decision as to whether it should reconsider its March 29, 2000, Memorandum and Order. For the reasons stated below, the Court now grants Defendant's motion for reconsideration, but, upon reconsideration, adheres to its Memorandum and Order of March 29, 2000.

I. DISCUSSION

Defendant urges the Court to reconsider the conclusion in its March 29, 2000, Memorandum and Order that the retirement incentive in the case at bar "is virtually identical to the clause at issue in Karlen," O'Brien, 92 F. Supp.2d at 119, such that Defendant cannot, as a matter of law, establish the affirmative defense of 29 U.S.C. § 623(f)(2)(B)(ii).*fn1 According to Defendant, unlike the discriminatory clause in Karlen, the "step down" provision in the Deer Park retirement incentive does not treat retirees differently solely on the basis of their age. (Def.'s Mem.Law Supp.Mot.Recons. at 4.) Rather, Deer Park retirees of different ages are treated identically, assuming they retire in the same year of eligibility. (See id.) Citing the decisions in Patterson v. Independent School District # 709, 742 F.2d 465 (8th Cir. 1984), and Cipriano v. Board of Education of North Tonawanda, 785 F.2d 51 (2d Cir. 1986), Defendant maintains that its tapering of the retirement incentive is a valid "carrot." (Id.)

The O'Brien and EEOC Plaintiffs counter that Defendant has not met the procedural requirements of a motion to reconsider, because Defendant has not raised any matter or controlling decision that the Court had overlooked and which, had it been considered originally, may have materially influenced its earlier decision. (EEOC's Mem.Law Opp'n at 9-12; O'Brien Pls.' Mem.Law Opp'n at 1-3.) In their submissions on this motion, neither the O'Brien nor the EEOC Plaintiffs affirmatively contend that the Court's comparison of the Deer Park retirement incentive to the clause at issue in Karlen was correct. They oppose reconsideration on procedural grounds alone, remaining silent as to the substance of the Court's earlier conclusion.

A. RECONSIDERATION OF THE COURT'S MEMORANDUM AND ORDER OF MARCH 29, 2000

Local Civil Rule 6.3*fn2 provides, in part, that "[t]here shall be served with the notice of motion for reconsideration or reargument a memorandum setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked." Because of the strong interest in "preserv[ing] scarce judicial resources and avoid[ing] piecemeal litigation," Church of Scientology, Int'l v. Time Warner, Inc., No. 92 Civ. 3024, 1997 WL 538912, at *2 (S.D.N.Y. Aug.27, 1997), "Local Rule 6 .3 is `narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court.'" Thomas v. A.R. Baron & Co., 967 F. Supp. 785, 790 (S.D.N.Y. 1997) (quoting Walsh v. McGee, 918 F. Supp. 107, 110 (S.D.N.Y. 1996)); accord Gray v. Briggs, No. 97 Civ. 6252, 1998 WL 635545, at *1 (S.D.N.Y. Sept.16, 1998). Conversely, "a party in its motion for reargument `may not advance new facts, issues or arguments not previously presented to the court.'" American Alliance Ins. Co. v. Eagle Ins. Co., 163 F.R.D. 211, 213 (S.D.N.Y. 1995), rev'd on other grounds, 92 F.3d 57 (2d Cir. 1996).

In faithfulness to the foregoing, "[t]he court must not allow reargument . . . to permit a party to reargue those issues already considered merely because a party does not like the outcome." Thomas, 967 F. Supp. at 790. Rather, "the movant must direct [the] court to `controlling decisions or data that the court overlooked — matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.'" United States v. Various Articles of Obscene Merchandise, No. 95 Civ. 0583, 1996 WL 532342, at *1 (E.D.N.Y. Sept.16, 1996) (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)).

Although the O'Brien and EEOC Plaintiffs persuasively demonstrate that Defendant had previously addressed the Karlen decision in its original and reply briefs on its cross-motion for summary judgment, (see Def.'s Mem.Law Supp. Cross-Mot. Summ.J. at 12-13; Def.'s Reply Mem.Law Supp. Cross-Mot.Summ.J. at 4-5), such that the import of that decision had been fully briefed before the issuance of the Court's Memorandum and Order of March 29, 2000, Defendant's motion for reconsideration is not procedurally defective.

Because Defendant's motion is narrowly focused on the question of whether this Court misinterpreted or misapplied the decision in Karlen, it neither advances repetitive arguments, nor improperly attempts to introduce, in tardy fashion, new facts, issues or arguments that Defendant had a previous opportunity to present to the Court. Because the Court's misapplication or misinterpretation of a case upon which it relied significantly in rendering its previous decision, if true, is a matter that might reasonably be expected to alter the conclusion reached in that decision, Defendant's motion for reconsideration is procedurally sound and is granted.

However, for the reasons that follow, the Court adheres to its conclusion that the Deer Park retirement incentive is virtually identical to that in Karlen, regardless of certain factual distinctions between the two. Further, the Court holds that early retirement incentive plan "window" benefit features that reduce retirement benefits during the period of the open window are inconsistent with the purpose of the ADEA to prohibit arbitrary age discrimination in employment.

B. THE DEER PARK RETIREMENT INCENTIVE IS VIRTUALLY IDENTICAL TO THAT IN KARLEN

The Court adheres to the conclusion reached in its original opinion that the Deer Park retirement incentive is virtually identical to that in Karlen. Defendant's argument to the contrary misappreciates the context in which the Court reached that conclusion.

It is true, when comparing the retirement incentive in the case at bar to the clause at issue in Karlen, that the two Early Retirement Incentive Programs ("ERIPs") are not identical. As explained in the Court's March 29, 2000, Memorandum and Order, the Karlen program

"offered retirees a lump sum payment based upon a variable percentage of their accumulated sick pay, depending upon their age at the time of retirement. This percentage rose from 50 percent at age 55 to 80 percent at age 64, but fell to 45 percent after age 64."

O'Brien, 92 F. Supp.2d at 119 (quoting Auerbach v. Board of Educ., 136 F.3d 104, 114 (2d Cir. 1998)).

By contrast, Section 10(g) of the collective bargaining agreement at issue in this case provides, in pertinent part, as follows:

Effective July 1, 1988, teachers who retire in their first school year of eligibility shall be compensated for 100% of their accumulated sick leave.
Teachers who retire in their second school year of eligibility shall be compensated for 80% of their accumulated sick leave. . . .
Teachers who retire in their third school year of eligibility shall be compensated for 75% of their accumulated sick leave. . . .
Teachers who retire in their fourth school year of eligibility shall be compensated for 70% of their accumulated sick leave. . . .
Eligibility shall be defined as having attained at least 55 years of age with at least 10 years of retirement credit in the New York State Teachers Association Retirement System. All teachers who have become eligible for retirement prior to July 1, 1988 shall be ...

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