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Robert Young, Steven Schein v. County of Nassau

February 9, 2012


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


Before the Court is plaintiffs' two-part motion. The first part seeks reconsideration of the September 21, 2011 Memorandum and Order ("M&O"), which granted defendants' motions to dismiss the amended complaint. The second part moves in the alternative for leave to amend the complaint for a second time. For the reasons that follow, plaintiffs' motion is denied in its entirety and this case is dismissed with prejudice.


a.Plaintiffs' Allegations and the Court's Order of Dismissal

A full recitation of the facts of this case can be found in the M&O that plaintiffs now ask the Court to reconsider. See Young v. County of Nassau, No. 09 CV 3830, 2011 U.S. Dist. LEXIS 106316 (E.D.N.Y. Sept. 21, 2011). A familiarity with this action is therefore assumed; only those facts necessary to address the present motion will be recounted below.

By Order dated September 21, 2011, the Court dismissed plaintiffs' federal claims under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and declined to exercise supplemental jurisdiction over the remaining state law claims. Plaintiffs' claims pertain to a policy implemented through the collective bargaining process*fn1 that effectively capped the amount of accrued and unused leave time that is paid out to an employee at retirement (referred to hereinafter as "termination pay"). Under the policy, regardless of the amount of unused leave that an employee had banked by the time they retired, one's termination pay at the time of retirement could not exceed two times his or her final annual salary. The new policy, however, did not go into effect on July 1, 2009, allowing anyone who was eligible to retire before that date to do so and avoid the imposition of the cap on their termination pay. Of course, those who did not, or could not, retire by that date were necessarily subject to the termination pay cap when they later retired. Plaintiffs allege that this policy amounts to age discrimination because it forces the older workers, i.e. those then eligible for retirement, to choose between (1) retiring prior to July 1, 2009 and receiving their full termination pay, or (2) staying on the job and accepting a cap on the amount of their termination pay when they later retire. By contrast, the younger workers, i.e. those not-then eligible for retirement, would not have to face this same dilemma because they could not retire in any event before the policy went into effect.

Plaintiffs drew a line between these older and younger workers at age 40, though the amended complaint failed to provide any explanation as why they delineated between the two groups at that particular age.*fn2 One possibility raised by the Court was that the language of the policy itself excluded those 40 and under. (See M&O at 9.) However, an examination of the policy*fn3 revealed that that was not the case. Based on the facts alleged, and documents incorporated by reference in the amended complaint, the Court determined that age 41 must represent the minimum age at which an employee becomes eligible for retirement.*fn4

The Court then concluded that the policy did not violate the ADEA. The following excerpts from the M&O provide the basis for this holding:

[T]he dissimilar effect of the policy between the two age groups is not the result of an explicit exclusion in the policy based on age, but the artifact of a separate eligibility criteria for retirement that somehow sets 41 as the minimum age at which an employee becomes eligible to retire. This fact reveals a critical mischaracterization by plaintiffs in their pleading. It is not that the "[c]ap affects no employee under the age of 41." (Compl. ¶ 31(emphasis added).) Rather, it is that the cap affects every employee under the age of 41. More accurately, the cap affects every employee who does not retire before July 1, 2009, regardless of age. The cap reduces the termination pay of every employee moving forward after the effective date. The only difference between the older set and the younger set is that the older set has the option to retire before July 1, 2009 and avoid the cap. The younger set does not have this option, however; they have no choice but to accept the cap on their termination pay when they retire. Those over 40 who choose not to retire before July 1, 2009 will, of course, also have their termination pay capped, but this is imposed not because of their age, but because of their choice not to retire. The result is that the older workers are actually at an advantage over their younger counterparts, not a disadvantage. . . . . . . . . . [B]ecause the policy takes effect for everyone on the same date, July 1, 2009, rather than on a separate date for each person based on his or her birthday, the trigger is not one's age, but the passing of July 1, 2009. Second, because the policy takes effect on that date, and applies uniformly to all employees moving forward, the advantage conferred on the younger workers in Abrahamson [v. The Bd. of Educ. of The Wappingers Falls Cent. Sch. Dist., 374 F.3d 66 (2d Cir. 2004)] and Auerbach [v. Bd. Of Educ. of the Harborfields Cent. Sch. Dist. of Greenlawn, 136 F.3d 104 (2d Cir. 1998)] (i.e. the option to continue working after a certain age without loss of benefits) will never be conferred on the younger workers here. Again, because the older workers were offered a choice that the younger workers were not likewise offered -- and presumably will never be -- the older workers are in every respect better off than the younger workers, not worse. (M&O at 11, 13.)

From there, the M&O noted the Supreme Court's holding in Gen. Dynamics Land Sys. v. Cline, 540 U.S. 581, 600 (2004), a case of reverse discrimination in which the Court held that despite the ADEA's expansive prohibition against "discrimination . . . because of such individual's age," the purpose and history of the Act, among other things, did not bar employers from "favoring an older employee over a younger one," Id. at 600. Therefore, the M&O continued, "to the extent that this facially neutral policy was at all motivated by age, because the policy itself actually advantages the older workers, defendants did not violate the ADEA." (M&O at 15.)

b.The Standard of Review on a Motion for Reconsideration

The decision to grant or deny a motion for reconsideration lies squarely within the discretion of the district court. See Devlin v. Transp. Comm'ns Union, 175 F.3d 121, 132 (2d Cir. 1999). The standard for a motion for reconsideration "is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or [factual] data that the court overlooked - matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); see also Arum v. Miller, 304 F. Supp. 2d 344, 347 (E.D.N.Y. 2003) ("To grant such a motion the Court must find that it overlooked matters or controlling decisions which, if considered by the Court, would have mandated a different result.") (citation and internal quotation marks omitted). "The major grounds justifying reconsideration are 'an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'" Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (quoting 18 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 4478 at 790). Thus, a "'party may not advance new facts, issues, or arguments not previously presented to the Court.'" Nat'l Union Fire Ins. Co. v. Stroh Cos., 265 F.3d 97, 115 (2d Cir. 2001) (quoting Polsby v. St. Martin's Press, No. 97 Civ. 690(MBM), 2000 U.S. Dist. LEXIS 596, at *2 (S.D.N.Y. Jan. 18, 2000)).

c.Plaintiffs' Motion for Reconsideration

Plaintiffs argue that the Court overlooked five factual matters in the M&O, properly pled in their amended complaint, that preclude a dismissal of their ADEA claim. Each of the ...

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