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In re Application of Clark

Supreme Court, New York County

December 20, 2013

In the Matter of the Application of R. THURSTON CLARK, JOHN PROVETTO, and all similarly situated non-represented managers of the MTA Bus Company, JOHN DOES 1 through 170, Petitioners,
v.
METROPOLITAN TRANSPORTATION AUTHORITY, MTA BUS COMPANY, and JAY H. WALDER, Chairperson of the Metropolitan Transportation Authority, Respondents Index No. 107588/2011

Unpublished Opinion

For Petitioners Gail Blasie Esq. and Stuart A. Salles Esq.

For Respondents Helene Fromm, Deputy General Counsel Metropolitan Transportation Authority

DECISION AND ORDER

LUCY BILLINGS, J.S.C.

I. PETITIONERS' CLAIMS

Respondent MTA Bus Company, a subsidiary of respondent Metropolitan Transit Authority (MTA), has employed petitioners as nonunion managers since July 2005. Both petitioner Clark and petitioner Provetto began their employment with private bus business entities that MTA Bus acquired in 2005. Petitioners allege that, as part of the agreed conditions of their employment, respondents repeatedly promised petitioners and other similarly situated nonunion managers from private bus business entities that they would be considered MTA employees, receive the same benefits as MTA employees, and be placed in the MTA Defined Benefit Plan, The plan, which petitioners refer to as a final average salary pension, allows MTA employees to collect pension benefits equal to a percentage of their final average salary at the time of retirement multiplied by their years of service.

In a written offer of employment accepted by Clark, who was employed by Queens Surface Corporation, MTA Bus specified that:

You will begin participation in the MTA 401 (k) plan and MTA Bus will make contributions to that plan on your behalf pursuant to the same terms and conditions as Queens Surface Corporation made to its 401(k) plan.

Am. V. Pet. Ex. 1, at 1. Both written offers of employment accepted by petitioners specified that:

Like all non-represented employees of the MTA and its agencies, the outlined benefits and the like are subject to modification. However, you will not be treated differently than other non-represented MTA employees.

Id. Ex. 2, at 1. See id. Ex. 1, at 2.

Petitioners allege that they relied on these promises and respondents' subsequent oral promises of equal pension benefits in accepting employment with respondents. Petitioners maintain that all managers performing the same functions throughout MTA are enrolled in the MTA Defined Benefit Plan with a final average salary and that respondent's' policy is to provide the same pension plan to MTA managers from private entities that MTA acquired, even if those private entities previously provided no final average salary pension plan.

Petitioners further allege, however, that in fact respondents fail to provide the same retirement benefits to petitioners and other nonunion managers from a private entity whom MTA Bus now employs. According to petitioners, all nonunion managers with MTA Bus, Long Island Bus, and New York City Transit Bus perform the same functions and supervise employees from all three entities. Nevertheless, while nonunion managers at the latter two entities receive MTA's pension plan, MTA Bus managers from another private entity only receive the retirement plans carried over from their previous private employers. Clark, for example, has only "a 401k contribution plan" with no pension. Id. ¶ 76. Petitioners also allege that managers at MTA Bus, unlike all other MTA managers, are prohibited from applying their military service time toward their years of service in calculating pension benefits.

Petitioners claim respondents made oral promises as well. Respondents specifically assured petitioners that respondents would enroll petitioners in the final average salary pension plan after the merger, but then repeatedly in 2007, 2008, and 2009 urged petitioners to be patient because respondents were working on resolving the pensions issue. Clark finally wrote to respondents MTA and Walder on March 22, 2011, demanding equal treatment and enrollment in a final average salary pension as respondents had promised both orally and in their written offer of employment. On April 11, 2011, Clark wrote to MTA and Walder again, reminding them that he expected a response. Receiving none, petitioners commenced this proceeding on behalf of themselves and all similarly situated nonunion managers on June 29, 2011.

Petitioners claim that respondents' refusal to provide them retirement benefits equal to other nonunion MTA managers breaches the employment agreements by MTA and MTA Bus with petitioners and violates New York Civil Service Law § 115 and the Equal Protection Clause, Article I, § 11, of the New York Constitution. Petitioners seek declaratory and injunctive relief entitling them and all MTA Bus nonunion managers to enrollment in the MTA Defined Benefit Plan with a final average salary and to retirement benefits equal to other MTA nonunion managers. Petitioners also ...


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