997 F.2d 1028 (2nd Cir. 1993), 1283, Bates v. Long Island R. Co.

Docket Nº:1283, Docket 92-9308.
Citation:997 F.2d 1028
Party Name:John BATES, James Butler, Vincent Gonzalez, Flossie Horsey, Henry Robinson, Antonio Salva, Alan Wayne, Joseph Abrams, and Malachy Lyons, Jr., individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. LONG ISLAND RAILROAD COMPANY, Defendant-Appellee.
Case Date:July 02, 1993
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 1028

997 F.2d 1028 (2nd Cir. 1993)

John BATES, James Butler, Vincent Gonzalez, Flossie Horsey,

Henry Robinson, Antonio Salva, Alan Wayne, Joseph Abrams,

and Malachy Lyons, Jr., individually and on behalf of all

others similarly situated, Plaintiffs-Appellants,

v.

LONG ISLAND RAILROAD COMPANY, Defendant-Appellee.

No. 1283, Docket 92-9308.

United States Court of Appeals, Second Circuit

July 2, 1993

Argued April 30, 1993.

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Mark Glen Sokoloff, New York City (Jamie Mercado, of counsel), for plaintiffs-appellants John Bates, James Butler, Vincent Gonzalez, Flossie Horsey, Henry Robinson, Antonio Salva, Alan Wayne, and Joseph Abrams.

Alexander J. Wulwick, New York City, for plaintiff-appellant Malachy Lyons, Jr.

Sharon Patterson Domingo, Jamaica, NY, for defendant-appellee Long Island R.R.

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Before: NEWMAN, MAHONEY, Circuit Judges, and EGINTON [*], District Judge.

EGINTON, Senior District Judge:

Appellants John Bates, James Butler, Vincent Gonzalez, Flossie Horsey, Henry Robinson, Antonio Salva, Alan Wayne, Joseph Abrams, and Malachy Lyons, Jr. bring this action under § 504 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 794. They claim that Long Island Rail Road Company ("LIRR") wrongfully terminated them on the basis of their respective disabilities. They further allege that LIRR failed to reasonably accommodate them when it refused to offer them different jobs within their crafts to which they were allegedly entitled under the terms of their respective collective bargaining agreements. All of the appellants were members of unions that were parties to collective bargaining agreements with LIRR, negotiated pursuant to the Railway Labor Act ("RLA"). 45 U.S.C. § 151 et seq. Under each of the relevant collective bargaining agreements, LIRR has the right to summarily terminate employees for non-disciplinary reasons in certain circumstances. For example, an employee who fails to pass a required medical examination may be deemed physically disqualified to perform his job and administratively terminated or transferred to a different position. The collective bargaining agreements clearly provide, however, that an employee may not be transferred when such transfer would bump a more senior employee from his position. Although LIRR's policy is to return injured employees to work as soon as possible after work-related injuries, none of the appellants except Joseph Abrams was reinstated. Because the facts relating to each appellant vary, we address the circumstances of each individual below.

John Bates

John Bates, a member of the Sheet Metal Workers International Association ("SMW"), was employed by LIRR as a pipefitter. In December 1981, he injured his left ankle and wrist on the job and quit working on the ground that he was permanently unable to perform his job as a pipefitter. Bates' treating physician and LIRR's Medical Director confirmed that Bates was indeed permanently disabled from performing the duties of a pipefitter.

Subsequently, Bates sued LIRR under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51 et seq., seeking $1,000,000 in damages for his work-related injuries. At the FELA trial, Bates' treating physician testified that Bates' ankle injury would permanently prevent Bates from required walking, climbing, carrying pipes, or standing in one position for any length of time--all essential functions of sheet metal workers. Thus, the doctor concluded that Bates was permanently disabled from his job as a pipefitter and from any other job within his craft. Bates also testified that he could not find an alternative job for which he was physically qualified. Finally, the record reveals that LIRR had attempted to place Bates in a more sedentary job on two occasions but that Bates was physically unable to perform either job because both jobs involved carrying weights.

In 1985, the FELA trial jury awarded Bates $450,000 damages, reduced 50% for his own negligence. Subsequently, LIRR's Medical Director examined Bates and concluded that Bates was permanently disabled from sheet metal work, after which LIRR administratively discharged him. Through the SMW, Bates grieved and arbitrated his termination, but a Public Law Board upheld his discharge on estoppel grounds.

After losing his grievance, Bates filed this action claiming that LIRR discriminated against him by failing to accommodate his disability as required by the Rehabilitation Act. As proof for his discrimination claim, Bates submitted an affidavit which states that a doctor examined him in late 1985 and found him able to perform the essential functions of his job as a pipefitter. Nevertheless, the district court found that this affidavit did not create a genuine issue of fact as to Bates'

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permanently disabled condition at the time of his discharge and granted summary judgment in favor of LIRR.

James Butler

James Butler was employed by LIRR as a Car Appearance Maintainer ("CAM") and worked as a floor preparer in the Paint Shop. As a CAM, he was a member of the Brotherhood of Railway Carmen of the United States and Canada Queens Lodge 886 ("BRCA").

In 1982, Butler left work on the ground that the dust and fumes in the Paint Shop had aggravated his asthma so severely that he was permanently disabled from continuing his job as a CAM. He rejected LIRR's suggestion that he bid for an alternate position and sued LIRR under FELA seeking $1,000,000 in damages for the aggravation of his asthmatic condition.

At the FELA trial, Butler's treating physician testified that Butler's bronchial asthma had been aggravated by his work environment and was so severe that he was permanently disabled from performing his job in the Paint Shop, even if he wore a mask. The jury awarded Butler $164,000 in damages, including a specific award of $30,000 for future lost wages.

Two months after the verdict, LIRR administratively terminated Butler because he was physically disqualified from performing his job. Through the BRCA, Butler grieved his termination, but his grievance appeal was denied by LIRR. Nevertheless, the BRCA continued to press Butler's grievance until LIRR made a settlement offer to Butler to end the dispute. The BRCA failed to respond to LIRR's settlement offer.

Butler then filed the instant action on the ground that LIRR had violated the Rehabilitation Act by failing to accommodate him by placing him in an alternate position within his craft. In support of his claim, Butler filed an affidavit of his treating physician which stated that Butler could have performed the essential functions of a CAM at the time he was discharged. He also filed an affidavit of the BRCA Chairman stating that Butler could have bid for a position in an open yard at the time of his discharge. After reviewing all the evidence, the district court found that these affidavits did not create a genuine issue of fact regarding Butler's permanently disabled condition and granted summary judgment in favor of LIRR.

Vincent Gonzalez

Vincent Gonzalez, a member of the International Brotherhood of Electrical Workers AFL-CIO Local 589 ("IBEW"), was employed by LIRR as an electrician for 26 years. He retired in 1982 and is collecting two pensions which together almost equal the salary he was earning in his last year of employment.

In 1979, Gonzalez was injured on the job and, subsequently, filed three separate FELA actions against LIRR on the ground that he was permanently disabled from working as an electrician. Two of these actions were discontinued, however, and the third was closed for failure to prosecute. Gonzalez stopped working in October 1979, and retired in November 1982.

Five years after his retirement, Gonzalez filed the instant action claiming that LIRR had discriminated against him because of his disability. The lower court dismissed his claim because Gonzalez failed to file within the applicable three-year statute of limitations.

Flossie Horsey

Flossie Horsey was employed by LIRR as a CAM and is a member of the BRCA. In 1985, she injured her back on the job and left work on sick leave. During her sick leave, Horsey failed to report to LIRR's Medical Department for required medical exams, failed to offer any explanation for her failure to appear for the exams, and failed to respond to LIRR's written notices inquiring about her absences.

Consequently, LIRR notified Horsey that she would be disciplined for insubordination if she failed to contact LIRR with an explanation. Horsey did not contact LIRR. As a result, disciplinary proceedings were instituted against her. Despite written notice of the disciplinary hearing, Horsey failed to appear at her hearing or offer an explanation for her

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absence. When the hearing was rescheduled, Horsey again failed to appear. Thus, she was found guilty of insubordination and dismissed from service.

Through the BRCA, Horsey filed a grievance against LIRR. The grievance was denied by LIRR, but did not progress to a Public Law Board. Subsequently, Horsey filed the instant action claiming that LIRR had discriminated against her because of her disability. The district court dismissed her claim on the ground that she had not...

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