Transport Workers Union v. New York City Transit
| Decision Date | 25 February 2005 |
| Docket Number | No. 02 Civ. 7659(SAS).,02 Civ. 7659(SAS). |
| Citation | 358 F.Supp.2d 347 |
| Parties | TRANSPORT WORKERS UNION OF AMERICA, LOCAL 100, AFL-CIO; Roger Toussaint, as President of Transport Workers Union of America, Local 100, AFL-CIO; Transport Workers Union of America, AFL-CIO; Sonny Hall, as President of Transport Workers Union of America, AFL-CIO; Amalgamated Transit Union, Local 726, AFL-CIO; and Angelo Tanzi, as President of Amalgamated Transit Union, Local 726, AFL-CIO, Plaintiffs, v. NEW YORK CITY TRANSIT AUTHORITY and Manhattan and Bronx Surface Transit Operating Authority, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Walter M. Meginniss, Margaret A. Malloy, Gladstein, Reif & Meginniss, L.L.P., New York City, for Plaintiffs.
Richard Schoolman, Baimusa Kamara, Office of the General Counsel, New York City Transit Authority, Brooklyn, NY, for Defendants.
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 that 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.1 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 only with respect to employees on the Authority's "sick leave control list." Both the Unions and the Authority now request that the Court certify aspects of its ruling for immediate appeal, pursuant to section 1292 of Title 28 of the United States Code.2
It is a "basic tenet of federal law to delay appellate review until a final judgment has been entered."3 However, a court, in its discretion, may certify an interlocutory order for appeal if the order "[1] involves a controlling question of law [2] as to which there is substantial ground for difference of opinion and [3] that an immediate appeal from the order may materially advance the ultimate termination of the litigation."4
When considering certification, district courts must carefully evaluate whether each of the above conditions are met.5 Courts place particular weight on the last of these three factors: whether immediate appeal will materially advance the ultimate termination of the litigation.6 "An immediate appeal is considered to advance the ultimate termination of the litigation if that `appeal promises to advance the time for trial or to shorten the time required for trial.'"7
The Second Circuit has urged courts "to exercise great care in making a § 1292(b) certification."8 "[O]nly `exceptional circumstances [will] justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.'"9 Indeed, even where the three legislative criteria of section 1292(b) appear to be met, district courts have "unfettered discretion to deny certification" if other factors counsel against it.10
This is the unusual case in which certification is appropriate. An interlocutory appeal would be in the interests of all parties, and would ensure judicial economy.
The outcome of this litigation is almost entirely determined by a single, recent Second Circuit case, Conroy v. New York State Dep't of Correctional Services.11 Conroy dealt with a novel issue of law: the application of the ADA prohibition to an employer's request for a general diagnosis from employees taking sick leave.12 Confronted with an incomplete record, the Conroy court remanded for further factual development, and offered, in dicta, general guidelines for the district court to consider in determining whether the employer's inquiries were justified. There has been no further decision in that case. There are still, therefore, substantial questions as to how Conroy's guidelines should be applied to a fully developed factual record. Moreover, if the Circuit accepts an appeal from the October 12 Order, it will be that court's first opportunity to rule on this issue in the presence of a developed record; the Circuit may qualify, expand, or firmly endorse the dicta in Conroy.
I have heard evidence and issued a final decision, on a full factual record, on two discrete issues: first, that the asserted business necessity of curbing sick leave abuse is sufficient to justify the policy only with respect to a group of employees on the sick leave control list, and second, that safety considerations justify the policy with respect to bus operators. There are nearly seventy other job titles at the Authority; extensive further discovery and weeks of trial may now be required to determine the safety-relatedness of each job title. The October 12 Order, following the guidelines set forth in Conroy, established the legal principles the Court will apply to this case, in the absence of further guidance from the Court of Appeals. All that remains is the application of those principles to dozens of similar factual scenarios.13 This could result in a serious waste of resources, depending on how the Court of Appeals rules on the inevitable appeal.
The Second Circuit has emphasized that 14 The parties have proposed various issues for appeal.15 Only the first of these issues is suitable for certification.16
The Authority seeks to appeal my holding that the business necessity of curbing sick leave is sufficient to justify the policy only with respect to employees with truly egregious attendance records (i.e., employees on the sick leave control list), and not with respect to all employees. My holding was based on Conroy's statement that:
[the employer's] stated goal of weeding out that small group of employees who consistently maintain attendance records that are far below [the employer's] standards 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, or if the policy is applied inconsistently, [the employer] will find it more difficult to prove business necessity.17
Following these guidelines, I held that, while the Authority had proven the existence of a level of sick leave abuse sufficiently "significant and troubling" to justify a narrowly-drawn policy aimed at curbing sick leave abuse, the Authority could not, absent a showing that "such abuse is so widespread as to be the norm among the Authority's employees" and that the Authority has a "reasonable basis to suspect that [] broad swathes of its employees are sick leave abusers," apply the policy to employees other than a defined class of employees with truly egregious attendance records.18 The Authority argues that the showing of "significant and troubling" levels of abuse is sufficient to justify the application of the policy as to all employees, given the difficulty of making a higher showing and the importance of deterring sick leave abuse. Further, the Authority argues that its public service functions and its duty to conserve public funds should be taken into account when considering the level of sick leave abuse necessary to justify the universal application of its policy.
The question of the level of sick leave abuse an employer must show to justify making the challenged inquiries of all employees, and the extent to which public purposes and duties such as those of the Authority may affect the analysis, is a controlling issue of law. "Although the resolution of an issue need not necessarily terminate an action in order to be `controlling,' it is clear that a question of law is `controlling' if reversal of the district court's order would terminate the action."19 If the Court of Appeals reverses, holding that the purpose of curbing sick leave abuse justifies the policy with respect to all employees, the litigation will end: there will be no need to determine which groups of employees may also be subject to the policy because of their safety-sensitive roles. Moreover, this case raises a novel issue of great importance to many other employers. This case may therefore have considerable precedential value.20
Although "the mere presence of a disputed issue that is a question of first impression, standing alone, is insufficient to demonstrate a substantial ground for difference of opinion"21 there is a substantial ground for difference of opinion as to this question. Conroy leaves this question open, providing only general guidance, in dicta, to the effect that an inquiry directed at all employees will be "more difficult" to justify. The proper interpretation of Conroy's guidelines is open to reasonable dispute. The case law on the business necessity standard, developed largely in the context of inquiries directed at specific employees, provides little guidance on the showing necessary to support a generally applicable policy such as the one at issue here. Although I have rejected the Authority's arguments on this point, they are certainly not without appeal: the concerns...
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