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TRANSPORT WKRS. UN. OF AM. v. NEW YORK CITY TRANSIT AUTH.

United States District Court, S.D. New York


November 3, 2004.

TRANSPORT WORKERS UNION OF AMERICA, LOCAL 100, AFL-CIO; ROGER TOUSSAINT, as President of Transport Workers Union of America, Local 100, AFL-CIO; TRANSPORT WORKERS UNION OF AMERICA, AFL-CIO; SONNY HALL, as President of Transport Workers Union of America, AFL-CIO; AMALGAMATED TRANSIT UNION, LOCAL 726, AFL-CIO; and ANGELO TANZI, as President of Amalgamated Transit Union, Local 726, AFL-CIO, Plaintiffs,
v.
NEW YORK CITY TRANSIT AUTHORITY and MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY, Defendants.

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge

OPINION AND ORDER

The plaintiff labor unions (collectively, "the Unions") brought this action challenging certain medical inquires made in connection with employee sick leave by the New York City Transit Authority and its subsidiary the Manhattan and Bronx Surface Transit Operating Authority (collectively, "the Authority"). Following a bench trial, the Court issued an Opinion & Order dated October 12, 2004 ("the October 12 Order"). In the October 12 Order, familiarity with which is presumed, the Court held that the Authority's inquiries were within the scope of the prohibited medical inquiries and examinations provision of the Americans with Disabilities Act. The Court further held that the Authority's asserted business necessity of maintaining workplace safety was sufficient to justify the inquiries with respect to bus operators, and possibly other groups of employees, to be determined at a later date; and that the Authority's asserted business necessity of curbing sick leave abuse was sufficient to justify the inquiries with respect to employees on the Authority's "sick leave control list." The Authority now moves for reconsideration of the October 12 Order.

II. LEGAL STANDARD

  A motion for reconsideration is governed by Local Rule 6.3 and is appropriate where a court overlooks "controlling decisions or factual matters that were put before it on the underlying motion . . . and which, had they been considered, might have reasonably altered the result before the court."*fn1 Alternatively, a motion for reconsideration may be granted to "correct a clear error or prevent manifest injustice."*fn2

  Local Rule 6.3 should be "narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court."*fn3 A motion for reconsideration "is not a substitute for appeal."*fn4 The purpose of Local Rule 6.3 is to "ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters."*fn5 Accordingly, a motion for reconsideration may not present "new facts, issues or arguments not previously presented to the court."*fn6 Courts have repeatedly been forced to warn counsel that they are "not supposed to treat the court's initial decision as the opening of a dialogue in which that party may then use [a motion for reconsideration] to advance new theories or adduce new evidence in response to the court's rulings."*fn7

  III. DISCUSSION

  The Authority moves for reconsideration of the portion of the October 12 Order that found the asserted business necessity of curbing sick leave sufficient to justify the inquiries only with respect to those employees who meet the criteria of the sick leave control list. The Court held that the sick leave control list was a narrowly defined class of probable attendance abusers, encompassing a small group of employees with "truly egregious" attendance records, and thus met the standard for "defining a class subject to a general policy" articulated in Conroy v. New York State Dep't of Correctional Services, 333 F.3d 88, 101-02 (2d Cir. 2003).

  The Authority now argues that the business necessity of curbing sick leave abuse also justifies the inquiries with respect to two other groups: first, the thirty percent of employees with the heaviest record of sick leave usage ("the 30 percent class"), and, second, all station cleaners (station cleaners having, on average, higher sick leave usage than comparable groups). The Authority did not raise these arguments at trial, or in its post-trial submissions. Instead, the Authority argued, unsuccessfully, that the business necessity of curbing sick leave abuse justified its inquiries with respect to all employees. The Authority may not use a motion for reconsideration to respond to the Court's adverse ruling on this argument by advancing a new `argument in the alternative' that it chose not to make at trial. The motion must therefore be denied.

  Moreover, the Authority fails to point to any overlooked facts or legal authority that might alter the result reached by the October 12 Order. The Court considered and rejected the possibility that the business necessity of curbing sick leave abuse might justify the policy with respect to classes of employees other than those on the sick leave control list. The classes suggested by the Authority on this motion for reconsideration do not meet the Conroy standard.

  Conroy held that making otherwise prohibited medical inquiries of a class consisting of a small group of employees who were suspected of attendance abuse "is probably consistent with business necessity case law. . . . Nonetheless, if the policy ultimately affects a class of so-called attendance abusers that is much larger than that small group of employees with truly egregious attendance records [the employer] will find it more difficult to prove business necessity."*fn8 The thirty percent class is far from a small group of employees. Moreover, the Authority has not shown that it has reason to suspect that employees in the thirty percent class are sick leave abusers. A high level of sick leave usage, by itself, does not give rise to reasonable suspicion of sick leave abuse. Employees on the sick leave control list, by contrast, have displayed a suspicious pattern of absence from which the Authority may reasonably infer abuse (e.g., consistently taking sick leave on days adjacent to regular days off).

  Station cleaners are a smaller group, but are still not an appropriate class under Conroy. The Authority has not shown any basis for suspecting that all or even most station cleaners are attendance abusers. The fact that the average level of sick leave use among station cleaners is high shows only that some station cleaners are heavy users of sick leave. It does not indicate that the majority of station cleaners are heavy users of sick leave; and, again, heavy usage of sick leave is not equivalent to abuse of sick leave. There may be legitimate reasons why station cleaners require more sick leave than other employees (or why other employees use less sick leave than they might be justified in using). Furthermore, those station cleaners who do have suspicious patterns of sick leave usage will be placed on the sick leave control list, and so, pursuant to the October 12 Order, the Authority may make its inquiries of them. Those who do not have suspicious patterns of sick leave usage should not be penalized merely because they fall within an arbitrarily-drawn class that has high average levels of sick leave use.

  IV. CONCLUSION

  For the foregoing reasons, the Authority's motion for reconsideration is denied. The Clerk is directed to close this motion [# 41 on the docket sheet].

  SO ORDERED.


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