Plaintiff unions sued defendants, a
Transit Authority and its subsidiary, seeking a declaratory judgment that
defendants’ sick leave policy violated the Americans with Disabilities Act of
1990 (ADA). The court conducted a bench trial.
The sick leave policy required all
employees to, inter alia, give notice including a statement of the nature of the
illness or condition that caused the employee to miss work and to submit a sick
leave form on return that required the employee to again state the nature of
the disability. The ADA precluded defendants from making inquiries of employees
that might tend to reveal a disability unless the inquiry was shown to be
job-related and consistent with business necessity.
The court found that there was no showing
that sick leave abuse was so widespread to justify universal application of the
policy. However, the policy was justified with respect to employees who had
been placed on a sick leave control list. The policy also was justified
with respect to bus operators and other
groups that might pose safety risks; a second trial was required to determine
what other groups might pose such risks. The unions’ claims were not barred by
unclean hands or laches; they brought suit promptly upon learning of its
possibility.
The unions were entitled to a declaratory judgment finding that the
sick leave policy’s inquiries fell under the ADA and that the policy was
justified only with respect to employees on the sick leave control list, bus
operators, and other safety-sensitive employees to be determined at a further
trial.
Transport
Workers Union v. NYC Transit Auth., #02C7659, 2004 U.S. Dist. Lexis 6641 (Apr.
12, 2004); 2004 U.S. Dist. Lexis 20352 (Oct. 12, 2004); and 2004 U.S. Dist.
Lexis 22317 (S.D.N.Y., Nov. 3, 2004).
UNITED STATES
DISTRICT COURT FOR
THE SOUTHERN
DISTRICT OF NEW YORK
Transport Workers Union of
America,
Local 100 AFL-CIO, et al,
Plaintiffs,
- against -
New York City Transit
Authority,
Defendants.
02 Civ. 7659 (SAS)
2004 U.S. Dist. Lexis 20352
16 AD Cases (BNA)130
October 12, 2004,
Decided
October 12, 2004, Filed
Reconsideration
denied at 2004 U.S. Dist. Lexis 22317 (S.D.N.Y., Nov. 3, 2004). Prior decision
at 2004 U.S. Dist. Lexis 6641 (S.D.N.Y., Apr. 12, 2004).
Shira
A. Scheindlin, U.S.D.J.
This case requires the Court to find a balance between conflicting and
compelling interests. On one side of the scales is the interest of the New York
City Transit Authority, and the public at large, in the safe and efficient
operation of New York’s public transport. On the other side are the protected
privacy interests of tens of thousands of the Transit Authority’s employees,
represented here by the plaintiff unions.
The Americans with Disabilities Act of 1990 (“ADA”)
entitles employees (of covered institutions) to maintain a special zone of
privacy from their employers concerning their health and medical conditions.
Employers may not make inquiries regarding an employee’s disabilities without a
sufficient business justification. The Transit Authority has a
longstanding practice of making certain general inquiries about its employees’
medical conditions before approving their applications for sick leave. In this
respect, the Transit Authority acts no differently from many other employers;
and until recently, the conflict between these routine inquiries and the ADA
was not widely recognized. The
Second Circuit’s recent decision in Conroy v. New York State Department of
Correctional Services [333 F.3d 88 (2d Cir. 2003)].
n1 held that even such routine and general inquiries might reveal disabilities,
and thereby invade the privacy interests protected by the ADA. Conroy set out a
framework to guide the district courts in determining whether such inquiries
are, in a particular case, justified by the employer’s business needs.
This case appears to be the first in which a trial court must apply Conroy’s
analysis.
The plaintiff unions seek a declaratory
judgment that the Transit Authority’s policies and practices relating to
employee sick leave (“the Policy”)
violate the prohibited medical inquiries and examinations provision of
the ADA, and request an injunction prohibiting the Policy’s enforcement. The
Transit Authority advances two justifications for the Policy: first, curbing
sick leave abuse, and, second, maintaining workplace and public safety. Although
I recognize the importance of the public interests behind the Policy, I am
bound to follow Conroy. Applying Conroy’s analysis, I find that the first
justification is sufficient to support the inquiries only with respect to those
employees with egregiously poor attendance records, and the second is
sufficient only with respect to employees with safety-sensitive jobs. Further
factual development will be required to determine which employees are
performing such safety-sensitive duties.
The Court has jurisdiction over this matter
pursuant to 28 U.S.C. § 1331, as a controversy arising under federal law, and
pursuant to 28 U.S.C. § 1343(a)(4), as an action to secure equitable relief
under a federal civil rights statute. A bench trial was held from September 7,
2004 to September 14, 2004. The following constitutes the Court’s findings of
fact and conclusions of law.
I. FINDINGS OF FACT
A. The Parties n2
Plaintiffs are three labor unions and their
respective presidents: Transport Workers Union of America, Local 100 (“Local
100”), and its president Roger Toussaint; Local 100’s parent union, the
Transport Workers Union of America (“T.W.U.”), and its president Sonny Hall;
and Amalgamated Transit Union, Local 726 (“Local 726”), and its president
Angelo Tanzi (collectively, “the Unions”). Defendants are the New York City
Transit Authority (“Transit Authority”) and its subsidiary, the Manhattan and
Bronx Surface Transit Operating Authority (“MABSTOA”) (collectively, “the
Authority”). The Authority employs more than 47,000 people. Local 100
represents over 32,000 of the Authority’s employees, including subway station
cleaners, bus operators and other employees in Manhattan, the Bronx and
Brooklyn. Local 726 represents over
1,300 of the Authority’s employees, including bus operators and maintenance
employees in Staten Island. Some of the employees represented by the Unions are
employed by the Transit Authority, and
others by MABSTOA. The Unions and the Authority are, and at all relevant times
have been, parties to collective bargaining agreements (“CBAs”). Local 100 and
Local 726 each have separate bargaining agreements with the Authority.
B. The Sick Leave Policy
The inquiries challenged by the Unions are
part of the sick leave policy codified in the CBAs between the Authority and
the Unions. n3 The Policy involves three inquiries. First, any employee n4 who
seeks sick leave must, before missing work, call the Authority to give notice
at least one hour prior to the start of his or her scheduled tour of duty. This
notice must include a brief statement of the nature of the illness or condition
causing the absence. n5
Second, on returning to work, the employee
must submit a sick leave application form (known colloquially as a “sick
form”). n6 The employee must give the completed sick form to his or her
supervisor. The sick form must be submitted by all employees after an absence
of any length, regardless of whether the employee seeks paid or unpaid leave.
The sick form requires the employee to state again the “nature of [the]
disability” which caused him or her to be “unfit for work on account of illness
during this period.” The form must be submitted within three days of the
employee’s return from his or her absence. n7 During that time, the employee returns
to normal duty. n8
Third, in certain circumstances, employees
are also required to have the “doctor’s certification” section of the sick form
completed. In such cases, the employee’s doctor must certify that the employee’s
illness “so incapacitated the employee that he/she was incapable of performing
his/her duties” during a specific period of time. The doctor must also state
briefly the employee’s “diagnosis/objective findings” and “treatment/prognosis
and expected date of return.” n9
The Authority’s employees are divided into
several categories, established through collective bargaining, to determine
when a doctor’s certificate is required. Local 726-represented employees must
submit a doctor’s certificate after an absence of more than two days. Only
thirty percent of Local 100-represented employees, those with the heaviest
record of sick leave usage, are required to submit a doctor’s certificate after
an absence of more than two days. The remaining seventy percent are required to
submit a doctor’s certificate after an absence of more than three days. n10
Finally, all employees who have been placed
on a “sick leave control list” are required to submit a doctor’s certificate
after an absence of any length. n11 An employee is placed on the list after
taking six absences without a doctor’s certification in one year, or after a
suspicious “pattern of usage.” n12 A suspicious pattern of usage may mean
consistent absence on the same day of the week or month, or adjacent to regular
holidays or coincident with sports events, or similar suspicious conduct. It is
not necessary that the employee have been proved to have abused sick leave, nor
does such proof by itself place an employee on the list. n13
The Policy has existed in substantially its
present form for decades. It was incorporated into the CBAs between the Unions
and the Authority in 1982, by order of a special independent arbitration panel.
It has remained in the CBAs, which have been periodically renegotiated and
renewed, since that time. n14
C. The Purpose of the Policy’s Disclosure Requirements
The Authority has identified two main purposes served by the medical
disclosures required by the Policy. First, the Authority asserts that the
disclosures are used to detect and deter abuse of sick leave - - that is,
employees taking sick leave when they are not in fact too sick to work. Second,
the disclosures may alert the Authority to dangerous medical conditions in
safety-sensitive employees such as bus operators. n15 I will first
discuss the evidence offered in support of these concerns - - the high cost of
absenteeism and the safety risks associated with impaired bus operators. I will
then address whether the evidence establishes that the sick forms are reviewed
by the Authority’s management in a way that effectively meets these concerns.
1. The Extent and Cost of Sick Leave Abuse
Employee absences impose substantial costs
on the Authority and on the public. Aaron Stern, the Authority’s Deputy Budget
Director for Budget Control, testified that paid sick leave costs the Authority
over $74 million annually. n16 This represents the total cost to the Authority
of all paid sick leave, legitimate or illegitimate. This figure is based on
“what would be the additional change in the number of positions that would be
required to do the fixed amount of work if there were no paid sick leave . . .
The answer is 657 positions fewer would be required if there were no paid sick
leave. And that would save $74.4 million.” n17
Stern’s figure of $74 million does not
include the costs of unpaid sick leave. However, this cost is also
considerable. Although it is not clear from the record precisely how much
unpaid sick leave is taken, it appears that the Authority’s employees take
nearly as many days of unpaid sick leave as they do paid sick leave. n18
Although the Authority does not have to pay wages to employees when they take
unpaid sick leave, such leave is not without its costs. The Authority must pay
for substitute workers, which may require overtime payments, n19 and must pay
fringe benefits to both the replacement and the absent worker. n20
Moreover, the Authority presented
compelling evidence of substantial indirect costs of sick leave, whether paid
or unpaid. For instance, Marie Bernoth, a manager responsible for subway
station night cleaning crews, testified that employee absences caused
significant disruption to subway cleaning services. Frequently, the Authority is unable to replace absent cleaning
employees. This may result in stations going uncleaned, leading to unsanitary
conditions. n21 Even when the Authority is able to make replacements, employee
efficiency and morale is decreased as they are placed in unfamiliar stations,
and required to work in unfamiliar teams. n22 Bus service may also be disrupted
and delayed as a result of absenteeism. n23 Sick leave (both paid and unpaid)
thus affects important services, imposing costs on the public as well as on the
Authority.
The percentage of sick leave that is
illegitimate is not clear - - and perhaps could never be measured with
precision - - but the Authority has presented evidence that it is significant.
The clearest evidence of abuse, of course, is the fact that every year the
Authority denies three to four thousand days of sick leave, on grounds of
abuse. n24 This is, however, a relatively small percentage of the total number
of sick leave applications: in 2003, the Authority’s employees took a total of
roughly 280,000 paid sick days. n25 The number of sick leave applications that
are denied amounts to 1-2% of the total of paid sick leave. Plainly, this
quantity of claimed sick leave is abusive: given the difficulties of detection,
the real amount is likely to be larger.
The Authority has presented anecdotal
evidence intended to show that the real amount of sick leave abuse is much more
substantial than the amount that is actually denied. The Authority’s witnesses
testified that sick leave usage rises on certain days. For example, sick leave
usage is said to be higher than usual when the weather is especially bad, or
especially good, and on the days of major sporting events. Sick leave also
rises around regular holidays, suggesting that employees are using sick leave
to extend their vacations. n26 I find this testimony, coming from witnesses
with long experience both as employees of the Authority and as managers, to be
credible. The evidence shows that there is a significant level of sick leave
abuse.
However, the Authority has not proved that
the abuse is so widespread that overwhelming numbers of employees are abusing
the leave policy. The evidence of suspicious patterns of usage is anecdotal and
impressionistic: while it shows significant and troubling levels of abuse, it
is not clear how common such abuse is. The Authority has also offered a great
deal of statistical evidence intended to show that sick leave abuse has reached
such epidemic levels that it may be considered the norm among the Authority’s
employees. This evidence is not convincing.
For instance, the Authority offered
evidence that usage of paid sick leave by MABSTOA employees was greater in 2004
than in 2003, following an increase in the amount of authorized paid sick
leave. n27 The Authority asks the Court to infer that the explanation for this
increase is that employees took advantage of the increase in paid sick leave to
take leave when they could have worked. For several reasons, this inference is
unwarranted.
First, while it is true that the usage of paid
sick leave increased in 2004, usage of unpaid sick leave declined at the same
time, so that the increase in total sick leave, while real, is less striking
than the increase in paid sick leave taken on its own. n28 Second, this
increase in sick leave usage could also support an inference that, before the
increase in paid sick leave, employees were prone to work when they were in
fact too sick to do so, to avoid losing income. Third, the Authority’s own
figures indicate that employees who did not receive an increase in paid sick
leave also increased their sick leave during the same period by a similar
amount. n29 Fourth, the Authority has not presented any evidence that the
increase from 2002 to 2003 is more than the normal fluctuation between years,
which could be caused by any number of factors (e.g., a bad flu year). n30
The Authority also points to the fact that
sick leave usage is greater in May, the month in which employees’ sick leave
‘banks’ are replenished, than in other months. n31 The Authority argues that
this demonstrates that employees are taking advantage of the replenished stock
of sick leave by taking leave when they are not ill. However, it is equally
likely that sick employees are taking paid sick leave in May, while in the
later months of this cycle, they either take unpaid leave or worked despite
their illness, having depleted their banks of paid sick leave.
For the foregoing reasons, I find that there is a significant level of
sick leave abuse at the Authority. However, the evidence is not sufficient to
show that such abuse is so widespread as to be the norm among the Authority’s
employees. n32
2. Workplace and Public Safety Concerns
At trial, the Authority focused on bus
operators as an example of a safety-sensitive class of employees. The danger
that may be posed by a bus driver who is unfit for duty due to illness or
medication is obvious - - a single accident could injure many people. n33 The
law recognizes the importance of these concerns. n34 The Authority is under a legal obligation not to “permit a
driver to operate a bus while the driver’s ability or alertness is so impaired, or so likely to become
impaired, through fatigue, illness or any other cause, as to make it unsafe for
him to begin or continue to operate the bus.” n35 The Authority is also
required to prohibit drivers from operating a bus within six hours of having
consumed a drug or intoxicating liquor, including certain common medications
such as Nyquil. n36
Pursuant to a pre-trial agreement, no evidence
was presented as to the safety-sensitive nature of other jobs. It is likely
that some other classes of employees - - such as tower operators, or certain
maintenance employees - - raise similar safety concerns, while others do not.
3. The Procedures for Review of Sick Forms and Medical Diagnoses
a. Review for Purposes of Detecting Sick Leave Abuse
An employee’s sick form is reviewed, in the
first instance, by his or her supervisor. n37 The Authority’s Sick Leave Manual
instructs supervisors to look for irregularities in the form, such as signs of
forgery of the doctor’s certificate, or discrepancies between the dates on
which the doctor certifies that the
employee was ill and the period of absence actually taken. n38 Supervisors are
also instructed to determine whether the length of absence appears reasonable
in light of the diagnosis and treatment described. n39 They may also examine
whether the employee’s self-diagnosis matches that of the doctor. n40
Suspicious forms are submitted to the Labor Cost Control Unit in the Labor
Relations Department for further investigation, which may involve review of the
stated diagnosis by the Authority’s medical professionals. n41 Only a “small
percentage” of sick forms are referred for investigation on suspicion of abuse.
n42 Nevertheless, the Authority denies three to four thousand days of sick
leave a year on grounds of abuse. n43 Every year, the Authority initiates
thousands of disciplinary actions for sick leave abuse. n44 In addition, the
Authority regularly pursues doctors who have provided fraudulent certificates,
recouping money from them and in some cases causing them to lose their
licenses. n45
Although thousands of sick forms are
referred every year for further review, denial or disciplinary action, only a
small number of these are questioned because of irregularities in the medical
disclosures challenged by the Unions. In the majority of cases, if a form is
questioned, it is because of other irregularities. Nonetheless, a significant quantum
of abuse is detected as a result of the medical disclosures: one witness
estimated that 8-10% of those forms that are sent for further review are
questioned because of the medical disclosures, rather than other
irregularities. n46
While the Authority has adduced evidence
that the Policy results in the denial of some sick leave and related
disciplinary actions, the statistics cannot show that the Policy deters abuse.
n47 This absence of evidence is not surprising. The Policy has been in place
essentially unchanged for decades, and the Authority therefore has had no
opportunity to observe levels of sick leave abuse in the Policy’s absence.
Despite this understandable gap in the Authority’s statistical presentation, it
strains credulity to believe that the Authority’s investigations and
disciplinary actions, including suspensions and dismissals, have no deterrent
effect. I therefore find that the Policy has some deterrent effect, albeit one
that is unquantified and possibly unquantifiable.
b. Review for the Purpose of Detecting Dangerous Medical
Conditions
The sick forms are also reviewed for
evidence of medical conditions affecting fitness to work. When reviewing bus
operators’ sick forms, supervisors are instructed to contact the Authority’s medical
professionals, at a Medical Assessment Center (“M.A.C.”), if a form raises
questions about the employee’s fitness. n48 Employees whose medical conditions
render them unfit to work may be kept off duty.
The procedure for review for fitness is somewhat
informal and haphazard. Supervisors are given no formal training in detecting
dangerous conditions, nor a list of particular conditions to look for.
Catenzaro described the process as a matter of informal exchange of experience:
“working the depot, employees learn through their supervisors. We teach them .
. . It is informal-type training. It occurs within the depot.” n49
Inexperienced supervisors are instructed to “error [sic] on the side of safety”
and refer all questionable medications or conditions to experienced managers or
to the M.A.C. n50
Nonetheless, it is clear that sick forms
are reviewed for safety purposes with some regularity. Catenzaro testified that
“forms get brought to us on a fairly regular basis if there is a question.” n51
Catenzaro further testified that around 50-100 forms per year, of the hundreds
or thousands he sees at his depot each year, “raise a flag” and are sent on for
further investigation. n52 Dr. Michelle Alexander, the Authority’s assistant
vice president of occupational health services, testified that supervisors at
the depot call doctors at the M.A.C. with questions about medication “daily.”
n53 I find both Catenzaro’s and Alexander’s testimony credible.
Alexander also testified as to why the
Authority carries out its own review of the diagnoses, rather than rely on a
doctor’s certification of an employee as fit to work:
Most private doctors are totally unaware of the standards and the actual requirements that most of our employees do . . . . I have been working for the Transit Authority for many years and I am constantly amazed at what the private doctor will say the employee can do and return to work doing because they don’t understand what the employee really does. n54
This
testimony is undoubtedly credible.
D. The Authority’s Other Inquiries
The Authority makes a number of other
health-related inquiries, mostly for the purpose of detecting dangerous medical
conditions, which the Unions do not challenge. Bus operators who have been out
sick for more than twenty-one consecutive days are required to take a medical
exam to determine their fitness before returning to work. n55 In addition, bus
operators are subject to random drug testing n56 and are required to report
their drug and medication usage to the Authority. n57 Bus operators are also
required to take a physical exam at least biannually. n58 Employees who work in
confined spaces or with hazardous chemicals are required to have more frequent
physical examinations. n59 On a more informal basis, dispatchers are required
to give bus operators a “non-medical lookover” before allowing them to go on
duty. n60 Finally, “employees may be ordered to submit to a medical examination
at the direction of the medical director, department head or a member of
management at any time if, in his/her opinion, one is necessary.” n61 In
addition, the Authority investigates sick leave abuse by means other than
review of the sick form: for example, the Authority may call the absent
employee’s house, or conduct surprise home investigations. n62
II. APPLICABLE LAW
The Unions argue that the Policy
violates the ADA, which prohibits
covered employers from making inquiries of their employees that may tend to
reveal a disability. n63 The relevant section of the ADA provides that:
A covered
entity shall not require a medical examination and shall not make inquiries of
an employee as to whether such employee is an individual with a disability or
as to the nature or severity of the disability, unless such examination or
inquiry is shown to be job-related and consistent with business necessity.
n64
My analysis of this law must follow the framework set out in the Second
Circuit’s recent opinion in Conroy, in which the court addressed a policy very
similar to the one at issue here. The employer in Conroy required employees
returning from sick leave to produce a “general diagnosis” and medical
certification. n65 The Conroy court held that the general diagnosis requirement
was an inquiry within the meaning of the ADA prohibition, because it “may tend
to reveal a disability.” n66
Such an inquiry is lawful only if it is shown to be “job-related and
consistent with business necessity.” n67 This is an affirmative defense
as to which the employer has the burden of proof. The employer is required to
make a two-part showing.
First, the employer must “show that the
asserted business necessity is vital to the business.” n68 The employer must
“show more than that its inquiry is consistent with mere expediency [or that]
an inquiry is convenient or beneficial to its business.” n69 Conroy recognized
that “business necessities may include ensuring that the workplace is safe and
cutting down on egregious absenteeism.” n70 However, an employer “cannot merely
rely on reasons that have been found valid in other cases,” but must show that
the necessity is vital on the facts of the particular case. n71 What
constitutes a business necessity may vary from workplace to workplace. n72
Second, the employer must also show that
the examination or inquiry genuinely serves the asserted business necessity and
that the request is no broader or more intrusive than necessary. The employer need not show that the
examination or inquiry is the only way of achieving a business necessity, but
the examination or inquiry must be a reasonably effective method of
achieving the employer’s goal. n73
Moreover,
if the employer’s inquiries are part of a general policy affecting broad
classes of employees, then “in defining a class subject to a general policy,
the employer must show that it has reasons consistent with business necessity
for defining the class in the way that it has.” n74 The employer need not make
a particularized showing that the inquiry is justified with respect to each individual
employee. However, the employer must show that the policy is generally
justified with respect to the class affected. n75 The court should grant some
deference to the employer in determining how to define a class subject to a
general policy. n76
For example, Conroy discussed a policy
applicable to employees who had been identified as probable sick leave abusers.
Conroy held that this policy was probably justifiable, if the class affected
was genuinely focused on a small group of consistent attendance abusers. n77
“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.” n78
As a threshold matter, the Authority argues
that the Policy is not an “inquiry” within the meaning of the ADA prohibition.
Conroy clearly forecloses this argument. The inquiries here are almost
identical to those in Conroy. Like those inquiries, the inquiries made by the
Authority “may tend” to reveal disabilities or perceived disabilities. n79 They
are therefore covered by the ADA prohibition, and the Authority must show that
they are job-related and consistent with business necessity.
B. Is the Policy Job-Related and Consistent With Business
Necessity?
The Authority claims that the Policy is
justified by two business necessities: curbing sick leave abuse, and ensuring
safety. With respect to each justification, the Authority must show (1) that
the claimed purpose is in fact a business necessity, (2) that the Policy
genuinely contributes to it, and (3) that the class affected is reasonably
defined. For the following reasons, I
find that the asserted business necessity of curbing sick leave abuse is not
sufficient to justify the Policy other than with respect to the class of
employees on the sick leave control list. The asserted business necessity of
ensuring safety is sufficient to justify the Policy with respect to bus
operators, and any other group of employees who perform safety-sensitive work.
n80
1. Sick Leave Abuse
a. Is Curbing Sick Leave Abuse a Business Necessity?
Conroy recognized that curbing absenteeism may be a business necessity,
in some workplaces, but held that the employer has the burden of showing that this
goal is a business necessity on the facts of each particular case. The Authority
has met this burden: it is vital to the Authority’s business that it control
sick leave abuse. Sick leave imposes enormous costs on the Authority, and on
the public at large, draining public funds and disrupting vital services. The
Authority has demonstrated that some significant percentage of these costs
results from abuse of sick leave. Though the precise quantum of abuse is
unclear, the cost to the Authority and the public of any degree of abuse is
significant.
The Authority is required by New York law
to operate for the “convenience and safety of the public on a basis which will
enable the operations thereof, exclusive of capital costs, to be
self-sustaining.” n81 Sick leave abuse frustrates the Authority’s obligations,
under the law and to the public, to provide convenient and safe service on a
self-sustaining basis. I therefore find that curbing sick leave abuse is a
legitimate business necessity for the Authority.
b. Does the Policy Genuinely Serve the Stated Purpose?
The evidence shows that the medical
diagnoses contained within the Policy serve the purpose of curbing sick leave
abuse. Most obviously, the medical diagnoses result in the denial of a
significant number of applications for sick leave. Every year, the Authority
denies thousands of applications for sick leave, n82 and issues thousands of
disciplinary action notices against employees for abuse of the sick leave
policy. n83 Many of these denials of sick leave and disciplinary actions arise
out of irregularities in the medical diagnoses. If the Authority could not
obtain a general diagnosis, its ability to detect abuse would be significantly
reduced. In addition, the Authority has used the information contained in the
medical diagnoses to detect doctors selling fraudulent sick leave excuses,
putting some of them out of business and recouping tens of thousands of
dollars. Even if the Court were to assume - - quite implausibly - - that the
Authority’s disciplinary actions and investigations do nothing to deter
additional fraudulent claims by employees, or fraudulent diagnoses by doctors,
it would still be clear that the medical diagnosis requirement serves the
Authority’s legitimate business purposes. The diagnosis requirement reduces the
costs associated with sick leave abuse by making it possible for the Authority
to deny fraudulent sick leave, saving significant sums of money. Because I also
find that the diagnosis requirement has some, albeit unquantifiable, deterrent
effect, there can be no question that the diagnosis requirement genuinely
serves the purpose of curbing sick leave abuse.
It may be true, as the Unions argue, that
the contribution of the diagnosis requirement to this purpose is small, when
compared to those aspects of the Policy that they are not challenging. n84
However, Conroy does not require that the challenged inquiry be “the only way
of achieving a business necessity,” only that it “genuinely serves” the purpose
in a “reasonably effective” manner. n85 The Authority has met this test.
c. Is the Class Affected Reasonably Defined?
Different aspects of the Policy affect
different classes of employees. The first inquiry, the requirement that
employees call in to give notice, and the second inquiry, the requirement that employees
give a self-diagnosis on their sick forms, affect all employees taking any
amount of sick leave. The third inquiry, the requirement of a doctor’s
certificate, affects various classes differently, but ultimately affects all
employees taking three or more days of sick leave. Employees on the sick leave control list must
submit a doctor’s certificate after an absence of any length. The class
of employees affected by at least some aspect of the Policy is thus very broad.
Conroy held that an employer seeking
to justify a general policy aimed at such a broad group would have a “more
difficult” burden than an employer whose policy affected a narrower, more
carefully drawn group. n86
Conroy requires the Court to grant the
Authority some deference in defining the class subject to the Policy. n87 But
even when all due deference is accorded to the Authority, it has not met its
burden of showing a reasonable basis for making inquiries of all employees
taking any amount of sick leave, or even of all employees taking three or more
days of sick leave. The Authority has not shown that it has any reasonable
basis to suspect that such broad swathes of its employees are sick leave
abusers. Only a small percentage of sick leave has been clearly shown to be abusive.
While that quantity of abuse imposes significant costs, and the Authority is justified in enacting a narrowly
drawn policy to combat it, there has been no showing that abuse is so
widespread as to justify the virtually universal sweep of the current Policy.
Moreover, the Authority is fully capable of identifying those employees who do
have truly egregious attendance records, and in fact already maintains a
control list of such employees. The asserted business necessity of curbing sick
leave abuse therefore cannot justify the Policy as it currently stands.
As to the class of employees on the sick
leave control list who take any amount of sick leave, I find that the Policy is
justified. The sick leave control list is a narrowly drawn class. Although the
list undoubtedly includes some innocent employees, the Authority has reasonable
grounds for suspecting that employees on the list are potential attendance
abusers. n88
2. Workplace and Public Safety Concerns
a. Is Safety a Genuine Business Necessity?
Pursuant to a pre-trial agreement, the
Authority made its case that
maintaining public safety was a business necessity with reference only
to bus operators. The record shows clearly that it is a business necessity for
the Authority to ensure that bus operators are fit to perform their duties. The
danger that may be posed by an unfit bus operator is obvious and undisputed.
b. Does the Policy Genuinely Serve the Stated Purpose?
The Unions argue that the Policy does not
in fact serve the purpose of maintaining safety. The Unions point first to the
fact that employees are given three days from their return to work to submit
their sick forms, during which time they are permitted to resume their work
duties. This clearly limits the ability of the Policy to detect dangerous
conditions in a timely manner. This limitation is mitigated to some extent,
however, by the requirement that employees call in with a statement of their
condition before taking leave, and by the fact that many employees choose to
submit their sick forms before the three-day period elapses.
The Unions also make much of the fact that
the diagnoses are not reviewed in the first instance by personnel with any
training in detecting dangerous conditions or medications. The informal,
rule-of-thumb character of the first stage of review of sick forms is certainly
troubling. This concern may be partly alleviated by the fact that supervisors
are instructed to err on the side of caution and to refer any medication or
condition they do not recognize to medical reviewers or to their experienced
superiors.
Finally, the Unions contrast the Policy
with other inquiries made by the Authority - - for example, the requirement
that bus operators out sick for more than twenty-one days take a physical exam,
or the requirement that all bus operators take a biannual physical exam - -
which the Unions concede to be reasonably effective methods of ensuring that
employees are fit to work. The Unions argue that in light of these other, more
effective inquiries, the challenged Policy is neither necessary nor productive.
The Unions also argue that the Authority could achieve its purposes by
requiring an employee’s doctor to confirm his fitness to work, without
disclosing his condition.
Despite the limitations of the Policy, and
the possibility of alternative approaches to the problem, I find that the
Authority has met its burden of showing that the Policy is reasonably effective
in maintaining safety. The Policy is clearly not optimally effective, but
Conroy requires no more than that it “genuinely serves” its stated purpose in a
“reasonably effective” manner. n89 The criticisms that the Unions level at the
Policy might also be made of the inquiries they do not challenge, or indeed of
any reasonably cost-effective inquiry that could be imposed. The bus operators’
biannual physical, for example, could be conducted too infrequently to
effectively detect dangerous conditions. Each of these inquiries, however,
contributes in some way to the purpose of detecting dangerous conditions, with
each inquiry acting as a backstop to the others.
Nor am I persuaded that the Authority could
reliably achieve its purposes by asking an employee’s doctor to certify him fit
for work. Doctors may underestimate the requirements of a bus operator’s job. A
few, the record shows, are negligent, or more interested in their patient than
in the Authority; some are simply for sale. The Authority is under a heavy
obligation to keep unfit drivers off the city’s streets: it should not have to
trust the judgment or scruples of its employees’ doctors to achieve this
purpose. The potential risks in this case are severe indeed. If the Policy
makes even a small contribution to reducing the risks posed by unfit drivers,
it is amply justified.
c. Is the Affected Class Reasonably Defined?
The Authority has presented evidence that
it has a reasonable basis for concluding that bus operators who require sick
leave pose a genuine safety risk. This is true even of bus operators who take only
one day of sick leave; even a brief, minor illness may render a driver unsafe
behind the wheel (e.g., a driver who has taken certain ordinary,
nonprescription cold remedies).
For the foregoing reasons, the Policy is justified
with respect to the class of bus operators. The Authority may continue to
enforce the Policy as it stands with respect to that class. Pursuant to the
pre-trial agreement, the Authority has
presented no evidence on the safety risks associated with employees other than
bus operators. As a result, I cannot make a decision as to whether safety
considerations might justify the application of the Policy to other groups. n90
A second trial will be needed to determine which other groups might also pose safety
risks.
C. The Scope of Permissible Inquiries n91
The Authority may therefore apply the
Policy as it stands to those employees who meet the criteria of the sick leave
control list, and to employees with safety-sensitive roles, including bus
operators. With respect to employees not on the control list and not in
safety-sensitive positions, the Authority may make the following inquiries,
which do not have the potential to reveal disabilities and so do not run afoul
of the ADA. The Authority may require an employee to call in advance of an
absence, but may not require the employee to describe the nature of his
illness. The Authority may require an employee to submit a sick form on his
return, in which the employee must state that he was unfit to work due to
illness during the period of absence, but may not ask the employee to state the
nature of his disability. The Authority may also require an employee to submit
a doctor’s certificate for absences of certain lengths, as determined through
collective bargaining. The Authority may require that the doctor certify that
the employee was incapable, due to illness, of performing his duties during a
specific period, and that the employee is now fit to resume his duties, but may
not require the doctor to describe the nature of the illness or treatment.
D. The Authority’s Unclean Hands/Laches Defenses
The Authority also argues that the Unions’ claims are barred on grounds
of unclean hands or laches. The Authority argues that the Unions could have challenged
the Policy at any time after the enactment of the ADA in 1992. During that
time, the CBAs have been renegotiated numerous times, and the Unions have not
negotiated for the removal of the Policy, or gone to impasse over it. The
Authority argues that the Unions have therefore had the benefit of bargains
negotiated on the understanding that the Policy would remain in place, and are
estopped from challenging it now.
I have already rejected the Authority’s
argument that the Unions had waived their standing to challenge the Policy by
this conduct:
The nature of collective bargaining is that it is a
negotiation -- one party relinquishes something (either by lowering its demands
or agreeing to a provision that the other party values) in order to receive a
concession that it deems more worthwhile. Therefore, in order to eliminate the
sick leave policy from the collective bargaining agreement, the Unions would
have been required to sacrifice some other benefit for their members. But if
the policy is not legal, the Unions should not have to make that sacrifice.
This is especially true where, as here, the challenged policy was inserted
unilaterally by the Authority into the original collective bargaining
agreement. Thus, the
Unions would have been required to bargain to remove a pre-existing policy that
the Authority valued; the cost of winning that concession would likely have
been considerable. n92
This reasoning still applies, whether the
Authority characterizes this argument as a challenge to standing or a defense
of unclean hands. The Unions were perfectly entitled to act as they did: they
were not required to make sacrifices, whether through negotiation or impasse,
in order to remove an illegal provision from the bargaining contract. Because there has been no showing of any
bad faith, fraud or deceit on the part of the Unions, the defense of unclean
hands cannot succeed. n93
To prevail on its defense of laches, the
Authority must show that “(1) the [Unions] knew of the [Authority’s] misconduct;
(2) the [Unions] inexcusably delayed in taking action; (3) the defendant was
prejudiced by the delay.” n94 Typically, prejudice ensues where the passage of
time has resulted in “unavailability of witnesses, changed personnel, and the
loss of pertinent records.” n95 In an appropriate case, however, a defendant
may show it has been prejudiced when it “has changed his position in a way that
would not have occurred if the plaintiff had not delayed.” n96
The Authority argues that it has suffered
prejudice as a result of the Unions’ long delay in bringing suit, having
changed its position in negotiations in reliance on the Unions’ failure to make
a legal challenge to the Policy. Although the Authority has arguably suffered
some prejudice as a result of the delay, the laches defense is unavailing, for
the following reasons. First, the Authority has not met its burden of showing
that the Unions’ delay was inexcusable.
The record shows that the Unions brought this suit promptly on learning
of its possibility, following a decision from the Northern District of New York
in Fountain v. New York State of Correctional Services, holding that the ADA
prohibition is applicable to policies similar to those at issue here. n97 It
appears that neither the Authority nor the Unions were aware of the illegality
of the Policy before Fountain. The Unions’ members should not be penalized for
the understandable failure of their lawyers to anticipate this novel and
imaginative application of the ADA. n98 Second, because the Unions brought this
suit within the statute of limitations provided by the ADA, the Court may not
apply laches to their claim. n99
“Separation of powers principles dictate that federal courts not apply
laches to bar a federal statutory claim that is timely filed under an express
federal statute of limitations.” n100 Third, the Unions seek only to enjoin the
Authority’s future conduct. Laches is
generally not applicable where a plaintiff seeks only to enjoin continuing
future unlawful conduct. n101 Where there is a continuing violation, “even in
equity . . . laches does not bar a claim for prospective injunctive relief.”
n102
IV. CONCLUSION
For the foregoing reasons, the Unions are
entitled to a declaratory judgment to the following effect: the Policy’s
inquiries are within the scope of the
ADA Prohibition, and the asserted business necessity of curbing sick
leave abuse is adequate to justify the Policy as it stands only with respect to
those employees who meet the criteria of the Authority’s sick leave control
list. However, the asserted business necessity of maintaining safety is
sufficient to justify the Policy with respect to safety-sensitive employees,
including bus operators. A further trial will be required to determine whether
safety concerns may justify the Policy (as it stands) with respect to other
groups of employees, or to all employees. Because it is not yet clear which
groups may pose safety risks, the Policy may continue to be enforced until such
time as that issue is determined.
SO ORDERED:
Shira A. Scheindlin
U.S.D.J.
New York, New York
October 12, 2004
Notes:
1 333 F.3d 88 (2d Cir. 2003).
2 The facts regarding the parties are taken from the Joint
Pretrial Order and the parties’ Proposed
Findings of Fact, and are undisputed.
3 See December 18, 1997 Agreement Between the Transit Authority
and Local 726, Plaintiffs’ Exhibit
(“Pl. Ex.”) 1-a at 42-47; July 1, 1994
Agreement Between the Authority, T.W.U. and Local 100, Pl. Ex. 2-a at 42-47.
4 Here, and throughout this opinion, “employee” refers only
to employees represented by the Unions.
5 See Sick Leave Manual, Pl. Ex. 4 at 11, 28.
6 See Sick Leave Manual at 12. See also Blank Application for
Leave of Absence Due to Illness, Pl.
Ex. 3; Completed Applications for Leave of
Absence Due to Illness, Defendants’ Exhibit (“Def. Ex.”) I-1
through I-6.
7 See Sick Leave Manual at 29.
8 See Trial Transcript (“Tr.”) at 41 (Julio Rivera, Local 100
Vice President of Maintenance of Way),
449-50 (Edward Catenzaro, General
Superintendent of Ulmer Park Depot). If the employee fails to hand
in the form on time, there may be
disciplinary consequences, but it is a
“rare occurrence” for the employee to be held out of service
pending receipt of the form. Id. at
449-50 (Catenzaro), 467-68, 475 (David
Hyland, Transit Authority Senior Director of Labor Contract Disputes).
9 See Sick Leave Manual at 12-13, 29.
10 See Tr. at 106 (Paul Hutchins, Transit Authority Senior
Director of Labor Productivity).
11 See Sick Leave Manual at 13-15.
12 Id. at 15.
13 See id.
14 See Tr. at 54-58 (Rivera), 78-79 (Angelo Tanzi, President of
Local 726), 245-49 (Ralph Agritelley,
Transit Authority Vice President of
Labor Relations).
15 The Authority also argues that the Policy’s disclosures serve
other, less significant purposes. For
example, they help the Authority to meet
its obligations under the Family and Medical Leave Act of 1993.
16 See Tr. at 150 (Stern). See also Cost of Paid Sick Leave, Ex.
E-1. Plaintiffs do not contest the
rough accuracy of this estimate.
17 Tr. at 150 (Stern).
18 For example, for station cleaners, the average total of unpaid
sick leave for the period May 2003 to
April 2004 was 11.020 days, while the
average total of paid sick leave was 11.490 days. See Chart of
Average Sick Leave Usage, Station
Cleaners, Def. Ex. G-10. See also Chart of
Average Sick Leave Taken, Bus Operators, 2002-2004, Def. Ex. E-5 (showing that, in the first quarter of 2004,
bus operators took an average of 1.89
paid sick days and 1.74 unpaid sick days). Bus
operators and station cleaners alone took 75,000 days of unpaid sick leave in 2003. See Tr. at 515 (Jorgen
Cleeman, Paralegal for Gladstein, Reif
& Meginniss, counsel to the Unions) (stipulation).
19 See Tr. at 121-22 (Hutchins).
20 See id. at 165 (Stern). Annually, these fringe benefits amount
to an average of $8,517 employee. See
Cost of Paid Sick Leave, Def. Ex. E-1.
21 See Tr. at 231-34 (Bernoth).
22 See id. at 240 (Bernoth).
23 See id. at 418 (Catenzaro).
24 See id. at 205-07 (Robert Finnegan, Transit Authority Labor
Cost Control Unit). Some percentage of
sick leave denials and related
disciplinary actions are vacated on appeal. The precise percentage is not clear, but is apparently small. See id.
at 476-77 (Hyland).
25 See Cost of Paid Sick Leave, Def. Ex. E-1.
26 See Tr. at 239 (Bernoth), 416-18 (Catenzaro).
27 See Chart of MABSTOA Sick Leave Usage, Def. Ex. E-4. The
average number of paid sick days taken
by MABSTOA employees was 0.697 in the
first quarter of 2003, and 1.247 in the first quarter of 2004. See
id. The number of paid sick days
available to these employees increased
from five to twelve in September 2003. See Tr. at 171 (Stern).
28 See Chart of MABSTOA Sick Leave Usage, 2002-2004. Total sick
leave, paid and unpaid, increased from
2.710 days per employee in the first
quarter of 2003 to 3.048 days in the first quarter of 2004. See id.
29 See Tr. at 187-89 (Stern); Chart of Average Sick Leave Taken,
Bus Operators, 2002-2004, Def. Ex. E-5.
30 Notably, the Authority has failed to compare 2002 and 2003 with
any other years (other than the first
quarter of 2004). Without some evidence
of the normal fluctuation between years, it is hard to know what weight to give the figures offered by
the Authority.
31 See Tr. at 179 (Stern); Chart of Average Sick Leave Taken by
Station Cleaners by Month in 2002, Def.
Ex. G-7; Chart of Average Sick Leave
Taken by Transit Authority Bus Operators by Month in 2002, Def. Ex. G-8; Chart of Average Sick Leave Taken by
MABSTOA Bus Operators by Month in 2002,
Def. Ex. G-9.
32 Agritelly, the Vice President for Labor Relations, testified
that, in 2002, Marc Kagan, then
Assistant to the President of Local 100, told
him that “employees had the right to use 12 days a year [of paid
sick leave] whether they were sick or
not.” Tr. at 257 (Agritelly). The
Authority argues that this demonstrates that sick leave abuse is widespread. This is incontrovertibly the
statement of the Union’s agent, and
concerns a matter within the scope of Kagan’s employment. See August 12, 2002 Letter from Kagan to
Agritelly Entitled “Re: Sick Leave
Policy,” Def. Ex. A. It is therefore admissible as an admission of a party-opponent under Federal Rule of
Evidence 801(d)(2). See Pappas v.
Middle Earth Condominium Ass’n, 963 F.2d 534 (2d Cir. 1992). However, Kagan’s statement at most indicates
that some Union officials (e.g., Kagan)
have a lax attitude towards sick leave abuse by their members; it says nothing about the extent to which their members
do in fact abuse sick leave.
33 For example, in 1995 an Authority bus operator who had a
“history of alcoholism in which he had
withdrawal seizures and blackouts [and] was
very debilitated from . . . esophageal cancer” lost consciousness behind the wheel and killed one person,
injured another and caused considerable
property damage. Tr. at 342-43 (Alexander).
n34 See, e.g., Siederbaum v. City of New York, 309 F. Supp. 2d 618 (S.D.N.Y. 2004) (holding that the Authority
was justified in refusing to permit a
victim of bipolar disorder to be a bus operator, because of the substantial risks posed by the
condition). See also Burton v. Metro
Transport Authority, 244 F. Supp. 2d 252, 262 (S.D.N.Y. 2003) (“It
is self-evident that the bus operator
position is extremely safety-sensitive
. . . . The Court need not cite to the record to observe that there is probably no more challenging place to drive
a bus - - without injury to self or
others - - than New York City.”).
35 New York Vehicle and Traffic Law § 509-k (McKinney 1996).
36 See id. § 509-l.
37 See Sick Leave Manual at 13; Tr. at 218-20 (Charles McKenna,
Transit Authority Director of Employee
Policy Compliance), 424, 443
(Catenzaro).
38 See Sick Leave Manual at 13-14.
39 See id.
40 See id.
41 See id.; Tr. at 195-96 (Finnegan).
42 Tr. at 444 (Catenzaro).
43 See id. at 207 (Finnegan).
44 See id. at 471 (Hyland).
45 See id. at 117 (Hutchins).
46 See id. at 218-23 (McKenna). Another witness testified that,
even though the majority of fraud is
simple forgery of the dates covered by
the doctor’s certificate, the diagnosis may alert reviewers to that forgery - - as when an employee alters a
form to claim ten days instead of just
one for a common cold. See id. at 212 (Finnegan).
47 For example, in an attempt to prove that the Policy’s
medical certification requirements have
a deterrent effect, the Authority
points to an increase in sick leave applications among Local 100 employees in 2003, following a relaxation in
medical certification requirements. On
May 1, 2003, the Policy with respect to Local 100 employees was modified to give the seventy per cent of employees
with the lightest sick leave records an
extra day of leave before
requiring a doctor’s
certificate. See id. at 106 (Hutchins), 180 (Stern). Sick leave usage among the affected employees was
almost eight per cent higher in the
twelve months following May 1, 2003 than in the preceding twelve months. See Chart of Average Sick
Leave Usage, Station Cleaners,
2002-2004, Def. Ex. G-10. The Authority has not proven its point. The increase in sick leave in 2003 may show only
that, before the relaxation in
certification requirements, employees who were genuinely ill preferred going to work to obtaining a
doctor’s certificate. Moreover, there
was a similar increase in sick leave usage in 2003 among employees to whom this relaxation did not apply, suggesting
that the increase may have been due to
other causes. See Tr. 186-89 (Stern);
Chart of Average Sick Leave Taken, Bus Operators, 2002-2004, Def.
Ex. E-5.
48 See Tr. at 428-33 (Catenzaro). See also Sick Leave Manual at
14.
49 Tr. at 428-29 (Catenzaro).
50 Id. at 430 (Catenzaro).
51 Id. at 433 (Catenzaro).
52 Id. at 445 (Catenzaro).
53 Id. at 316 (Alexander).
54 Id. at 338-39 (Alexander).
55 See id. at 370-71 (Alexander).
56 See id. at 374-75 (Alexander).
57 See id. at 398-99 (Stephen Vidal, Transit Authority Chief
Officer for the Department of Buses,
Safety and Training Division).
58 See id. at 373 (Alexander). Bus operators over fifty are
required to take this exam annually.
See id. at 89 (Tanzi). Bus operators with
certain medical conditions may be examined more often: for example, diabetic employees are examined at least
every six months, or more frequently,
depending on the severity of the
condition. See id. at 373 (Alexander).
59 See id. at 385-86 (Alexander).
60 Id. at 458 (Catenzaro) (“We look to see if the operator appears
to be disheveled, are their eyes
glassy, are their eyes bloodshot . . .
things of that type.”).
61 Sick Leave Manual at 14.
62 See id. at 11-12.
63 The Unions bring this suit under Title I of the ADA, which
prohibits employment discrimination by any covered entity, and Title
II of the ADA, which prohibits
discrimination on account of disability by
any public entity.
64 42 U.S.C. § 12112(d)(4)(A) (the “ADA prohibition”). While the
Unions sue under both Title I and
Title II of the ADA, the substance of their
claim relies on this provision found solely in Title I. See also 28 C.F.R. § 35.140(b)(1) (adopting, under Title
II, all the requirements of Title I,
with respect to entities subject to Title I).
65 Conroy, 333 F.3d at 91.
66 Id. at 95. See also Roe v. Cheyenne Mountain Conference Resort,
920 F. Supp. 1153, 1154-55 (D. Colo.
1996) (holding that requiring employees
to disclose which prescription drugs they use is a prohibited inquiry because it may reveal disabilities
or perceived disabilities).
67 42 U.S.C. § 12112(d)(4)(A). The Authority argues that its
inquiries may also be justified by
another provision of the ADA, 42 U.S.C. §
12112(d)(4)(B), which makes
“acceptable” an employer’s “inquiries
into the ability of an employee to perform job-related functions.”
The same argument was squarely rejected
in Conroy, which held that a general
diagnosis “is not a narrowly tailored inquiry into the employee’s ability to carry out her
job-related functions,” and is therefore not covered by that provision.
Conroy, 333 F.3d at 94.
68 Conroy, 333 F.3d at 98.
69 Id.
70 Id.
71 Id. at 101.
72 See id. at 99.
73 Id. at 98. The Authority argues that the correct reading of
the statutory language is that
“consistent with business necessity”
requires only that the inquiry does not actually conflict with or undercut the stated policy. Whatever the
merits of this gloss on the statute, it
is clearly contradicted by Conroy.
74 Id. at 101.
75 See id.
76 See id.
77 See id. at 102.
78 Id. (quotation omitted).
79 Id. at 95.
80 As noted, pursuant to a pre-trial agreement, no evidence
was presented as to the safety-sensitive
nature of other jobs; a second trial
will be required to determine this issue.
81 Public Authorities Law, § 1202(1) (McKinney 2004).
82 See Tr. at 207 (Finnegan).
83 See Tr. at 471 (Hyland).
84 For instance, plaintiffs do not challenge the requirement that
a doctor certify that the employee was
unfit to work during the dates of
absence. Even without a diagnosis, such a requirement would prevent many cases of abuse. The Authority also has
other, unchallenged means of
investigating sick leave abuse, such as surprise home investigations.
85 Conroy, 333 F.3d at 98.
86 Id. at 102.
87 See id. at 101.
88 Conroy also questioned the amount of discretion given to
management in drawing up such a list, fearing
that “such a flexible policy . . .
could be used to target individuals with actual or perceived disabilities.” Id. at 102. The criteria for
the Authority’s control list do have a
degree of flexibility. In particular, the criteria for “pattern absences” are somewhat loosely
defined and give supervisors some
discretion. However, this discretion is reasonably contained by the definitions and statements of purpose
contained in the Sick Leave Policy
Manual, and by the fact that an employee must maintain a consistent pattern of absences to get on the
list. Nothing in the record suggests
that the control list policy has in fact been enforced in a discriminatory or inconsistent manner.
89 Conroy, 333 F.3d at 98.
90 The Authority presented station cleaners as an example of
employees who do not pose a risk to
public safety. The Court notes, however, that
if station cleaning is delayed or disrupted due to sick leave abuse, the public’s health and safety may well be
endangered by unsanitary conditions.
The Authority has yet to make this case. Even if it is shown to be true, however, the Authority
would have no basis for applying the
Policy to all station cleaners, rather than to a narrowly-drawn class of station cleaners who are reasonably suspected of sick leave abuse. The Authority is
justified in applying the Policy to any
bus operator who takes any amount of sick leave, because if a driver is sick behind the wheel on even a
single occasion, he may cause enormous
damage. Station cleaners, however, are not safety-sensitive in the same way. Although the cumulative effect
of illegitimate absences among station
cleaners may pose health risks, no serious risk is posed (on the evidence so far presented to the
Court) by a station cleaner coming to
work in an unfit condition.
91 This ruling addresses only the inquiries in connection with
sick leave challenged by the Unions.
These inquiries are the requirement
that an employee call in before taking leave, the requirement that
an employee fill in a sick form on
returning to work, and the requirement
of a doctor’s certificate. See supra Part I.B. Nothing in this
ruling should be taken to affect any
other inquiries made by the Authority.
See supra Part I.D.
92 Transport Workers Union of America, Local 100 v. N.Y. City
Transit Auth., 2004 U.S. Dist. Lexis
6641, No. 02 Civ. 7659, 2004 WL 830289 at
*5 (S.D.N.Y. Apr. 13, 2004) (citing Thompson v. Board of Ed. of Romeo Community Schools, 71 F.R.D. 398, 406 (W.D.
Mich. 1976), rev’d on other grounds,
709 F.2d 1200 (6th Cir. 1983)).
93 See Dunlop-McCullen v. Local 1-S, 149 F.3d 85, 90 (2d Cir.
1998) (holding that the doctrine of
unclean hands requires that plaintiffs
have acted in good faith, “fairly and without fraud or deceit”).
94 Ikelionwu v. United States, 150 F.3d 233, 237 (2d Cir. 1998).
95 E.E.O.C. v. Dresser Indus., Inc., 668 F.2d 1199, 1203 (11th
Cir. 1982).
96 Conopco, Inc. v. Campbell Soup Co., 95 F.3d 187, 192 (2d Cir.
1996).
97 190 F. Supp. 2d 335 (N.D.N.Y. 2002).
98 The Conroy court noted the novelty of the claim. See Conroy,
333 F.3d at 95 (“Our court has not previously interpreted this provision.
Indeed, relatively few courts have addressed . . . this ADA prohibition.”). The
Court is not aware of any case prior to Fountain applying the ADA prohibition
to a policy similar to the one at issue here.
99 The Unions’ claim is timely because the Policy is a continuing
violation of the ADA: the fact that the Policy has been in place for decades is
irrelevant. See Bazemore v. Friday, 478 U.S. 385, 92 L. Ed. 2d 315, 106 S. Ct.
3000 (1986).
100 Ivani Contracting Corp. v. City of New York, 103 F.3d 257, 259
(2d Cir. 1997). See also Ortiz v. Suffolk County Police Dep’t, 210 F. Supp. 2d
143, 146 (E.D.N.Y. 2002) (“It is a rare case where the doctrine of laches bars
the prosecution of a federal claim that is timely filed under the applicable
statute of limitations.”).
101 See Southwest Voter Registration Educ. Project v. Shelley, 344
F.3d 882, 906 (9th Cir. 2003) (“The general
rule [is] that laches does not bar future injunctive relief . . . Almost by
definition, the plaintiff’s past dilatoriness is unrelated to a defendant’s
ongoing behavior that threatens future harm.”).
102 Lyons Partnership, L.P. v. Morris Costumes, Inc., 243 F.3d
789, 797 799 (4th Cir. 2001).
UNITED STATES
DISTRICT COURT FOR
THE SOUTHERN
DISTRICT OF NEW YORK
Transport Workers Union of
America,
Local 100 AFL-CIO, et al,
Plaintiffs,
- against -
New York City Transit
Authority,
Defendants.
02 Civ. 7659 (SAS)
2004 U.S. Dist. Lexis 22317
November 3, 2004, Decided
November 4, 2004, Filed
OPINION AND
ORDER
Shira
A. Scheindlin, U.S.D.J
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.” n1 Alternatively, a motion for reconsideration may be
granted to “correct a clear error or prevent manifest injustice.” n2
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.” n3 A motion for reconsideration “is not a substitute for appeal.” n4
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.” n5 Accordingly, a motion
for reconsideration may not present “new facts, issues or arguments not
previously presented to the court.” n6 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.” n7
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.” n8 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:
Shira
A. Scheindlin
U.S.D.J.
New York, New York
November 3, 2004
Notes:
1 Range Road Music, Inc. v. Music Sales Corp., 90 F. Supp. 2d 390,
392 (S.D.N.Y. 2000) (quotation marks and citation omitted). See also Shrader v.
CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (“ The standard for granting ... a motion [for reconsideration] is
strict, and reconsideration will generally be denied unless the moving party
can point 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.”).
2 Doe v. New York City Dep’t of Soc. Servs., 709 F.2d 782, 789 (2d
Cir. 1983).
3 DelleFave v. Access Temporaries, Inc., 2001 U.S. Dist. Lexis
3165, No. 99 Civ. 6098, 2001 WL 286771, at *1 (S.D.N.Y. Mar. 22, 2001).
4 RMED Int’l, Inc. v. Sloan’s Supermarkets, Inc., 207 F. Supp. 2d
292, 296 (S.D.N.Y. 2002) (quotation omitted).
5 Carolco Pictures, Inc. v. Sirota, 700 F. Supp. 169, 170
(S.D.N.Y. 1988).
6 Davidson v. Scully, 172 F. Supp. 2d 458, 461 (S.D.N.Y. 2001).
7 Polsby v. St Martin’s Press, Inc., 2000 U.S. Dist. Lexis 596,
No. 97 Civ. 690, 2000 WL 98057, at *1 (S.D.N.Y. Jan. 18, 2000) (citations
omitted).
8 Conroy, 333 F.3d at 102 (quotation omitted).