Verdon v. Consolidated Rail Corp.

• Decision Date: 12 August 1993
• Docket Number: No. 93 Civ. 487 (GLG).,93 Civ. 487 (GLG).
• Citation: 828 F. Supp. 1129
• Parties: Dennis VERDON, Plaintiff, v. CONSOLIDATED RAIL CORPORATION, Metropolitan Transit Authority-Metro North Commuter Rail Division, Defendants.
• Court: U.S. District Court — Southern District of New York

828 F. Supp. 1129

Dennis VERDON, Plaintiff, v. CONSOLIDATED RAIL CORPORATION, Metropolitan Transit Authority-Metro North Commuter Rail Division, Defendants.

No. 93 Civ. 487 (GLG).

United States District Court, S.D. New York.

August 12, 1993.

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Law Offices of Carton & Rosoff, P.C., New Rochelle, NY by David M. Rosoff, for plaintiff.

Metro-North Commuter R. Co., Richard K. Bernard, General Counsel, New York City, by Rhonda J. Moll, for defendant Metro-North Commuter R. Co.

Morgan, Lewis & Bockius, New York City by Bradford W. Coupe, for defendant Consol. Rail Corp.

OPINION

GOETTEL, District Judge.

This action involves an employment dispute between an individual plaintiff and two railroads. Plaintiff Dennis Verdon is a resident of the State of New York. Defendant Consolidated Rail Corporation ("Conrail") is a Pennsylvania corporation, created by Congress under the Regional Rail Reorganization Act of 1973 to be a "for-profit corporation" operating as an interstate "common carrier by railroad." 45 U.S.C. § 741(b). Defendant Metro-North Commuter Rail Division ("Metro-North") is a public-benefit corporation which is a wholly owned subsidiary of the Metropolitan Transit Authority ("MTA"), a Public Authority of the State of New York. N.Y.Pub.Auth.L. §§ 1260 et seq. (McKinney's 1982 & Supp.1992).

I. FACTS

According to the complaint, plaintiff worked for Conrail as a trainman on one of its New York City commuter lines from June 11, 1976 until February 11, 1978, when he took a medical leave of absence to obtain drug treatment. At oral argument, defendant Conrail conceded that plaintiff began working for them as a trainman in 1976, but they claim no knowledge of how long he worked for them or by what action he came to leave their employ. The suggestion has been made by Conrail that he may have simply abandoned his position at Conrail, rather than taking a formal medical leave. Plaintiff claims he has been fully rehabilitated from his drug addiction and ready to return to work since August 29, 1986.

During plaintiff's absence, Conrail underwent substantial change. Conrail had been created in order to "reorganize ... the railroads in the northeast region into an economically viable system capable of providing adequate and efficient rail service to the region." 45 U.S.C. § 701(b)(2). Unfortunately, by 1981 Congress found that Conrail had failed to become "the self-sustaining railroad system in the Northeast" it had envisioned. § 1132(1) of the Northeast Rail Service Act of 1981 ("NRSA"), 45 U.S.C. § 1101(1). Thus, to help bring about a self-sustaining railroad system, Congress enacted legislation which relieved Conrail of its responsibility to provide commuter rail service to the New York metropolitan area. 45 U.S.C. § 1102(2). This responsibility was transferred to "entities whose principal purpose was the provision of commuter service." Id. In this process, the Conrail commuter line plaintiff claims to have worked for was transferred to Metro-North, effective January 1, 1983. 45 U.S.C. § 744(a).

As part of the transfer, Conrail, Metro-North, and the United Transportation Union ("the UTU")¹ were required to negotiate an agreement to implement the procedures Congress had legislatively mandated to protect the rights of Conrail employees in the transfer process. § 1145 of the NRSA, 45 U.S.C. §§ 588(a), (b), (c). Under the NRSA, if no agreement were reached by August 1, 1982, the matter would have to be submitted to a neutral referee for mediation; such mediation would be legally binding on all parties. § 1145 of the NRSA, 45 U.S.C. §§ 588(d). Since the parties did in fact fail to reach an agreement, a neutral referee was appointed, and that referee imposed an agreement binding on all parties ("the Implementing Agreement"). Pursuant to this agreement, Conrail train service employees who had been on disability or leave of absence at the time commuter service was transferred to Metro-North had the right "within five working days following their return to service with Conrail, to exercise seniority against junior employees of Metro-North." Implementing Agreement at § II.C. The agreement also set out the means by which disputes rising out of its provisions were to be resolved. It stated that all disputes which remained unresolved for over 60 days "may be submitted by any of the parties to an Adjustment Board for a final and binding decision thereon as provided for in Section 3, Second of the Railway Labor Act ("RLA" or "the Act"), 45 U.S.C. §§ 151, et seq.." Implementing Agreement at § X.

Shortly after the Implementing Agreement was imposed, Metro-North and the UTU entered into a collective bargaining agreement ("the UTU Agreement") which incorporated some of the provisions of the Implementing Agreement, including provisions regarding the "flow through" rights of senior Conrail employees at Metro-North. Defendant Metro-North believed that plaintiff claimed rights in part under this collective bargaining agreement. Plaintiff, however, informs us that he is not claiming any rights under the UTU agreement.² Instead, he states, he asserts contractual rights solely under the Implementation Agreement and the Act upon which that Agreement is founded, the NRSA.³

Plaintiff claims that once he was ready to return to work, he tried to use the Implementation Agreement and the NRSA to obtain an assistant conductor's position at Metro-North — the approximate equivalent of a trainman position at Conrail — based on his Conrail seniority, but that his requests were denied. It is this failure to permit plaintiff to "flow through" Conrail to Metro-North as an assistant conductor which forms the basis of the present action.

According to the complaint, plaintiff's efforts to obtain this position were as follows: On August 29, 1986, plaintiff wrote to Conrail's Manager of Labor Relations, J.F. Glass, to reactivate his employment. Thereafter, Edward Farley, the Chairman of plaintiff's Conrail Union, provided Glass with documentation which plaintiff claims was sufficient to substantiate his employment. Mr. Farley is said to have followed up this action with a letter dated December 15, 1986, in which he "reiterated that plaintiff was on a medical leave of absence and asked that plaintiff's request for reinstatement be acted upon." Complaint at paragraph 19. Glass responded by letter dated December 19, 1986, stating that Conrail did not have sufficient record of his employment "to justify his restoration to Conrail service," but that his decision "was subject to reconsideration on request" if plaintiff could provide "appropriate documentation." Complaint at paragraph 20. Then, by letter dated January 28, 1987, Mr. Glass went on to explain more specifically that Conrail had no record of plaintiff's previous employment or seniority on its most recent official seniority roster, a roster Conrail posts each year to indicate the work history of its employees as required by Conrail's agreement with the UTU. Without such a listing, they could not allow him to return to Conrail as a former employee.

Plaintiff claims that thereafter he communicated with Conrail, through his attorney, by telephone and letter "several times" in his efforts to obtain reinstatement. Complaint at paragraph 22. The point at which plaintiff finally made written application to Conrail and Metro-North to become an assistant conductor for Metro-North is indicated by the complaint, and was confirmed at oral argument by plaintiff's attorney to be April 1, 1992.⁴ Plaintiff claims this request was "timely," but that his request was denied "on the ground that he had not served at Conrail." Complaint at paragraph 28.

Plaintiff now sues for violation of his rights under the Implementation Agreement and under § 1145 of the NRSA, 45 U.S.C. § 588; for violation of his constitutional rights under color of law under 42 U.S.C. § 1983; and for deprivation of his "vested property rights"⁵ without due process of law in violation of the Fourteenth Amendment. He seeks declarations that he was employed as a trainman for Conrail from June 11, 1976 to February 10, 1978 and that he is entitled to his "seniority and the attendant transfer rights under the Implementation Agreement." Complaint at paragraph II. Plaintiff also seeks an Order from this court requiring Metro-North to appoint him to the position of assistant conductor; ordering them to give him full backpay, seniority, and benefits including "all promotions and raises he would have received had he been reinstated to Conrail and transferred to Metro Northon sic August 29, 1986,"⁶ the date on which he wrote to Conrail to inform them that he was ready to return to work; and holding it jointly and severally liable with Conrail for "all lost pay, benefits and seniority suffered by plaintiff,"⁷ along with reasonable attorney's fees and costs incurred in prosecuting this action.

In the motions presently before us, defendant Conrail moves to dismiss plaintiff's NRSA and Implementation Agreement claims for want of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1); to dismiss plaintiff's § 1983 and Due Process claims for failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6); or to alternatively dismiss plaintiff's § 1983 claim as time-barred under the applicable statute of limitations. Defendant Metro-North moves to dismiss all claims for want of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1); to dismiss plaintiff's § 1983 claim for failure to state a claim upon which relief can be granted, pursuant to Fed. R.Civ.P. 12(b)(6) because the claim is time-barred under the applicable statute of limitations; and for sanctions against plaintiff under Rule 11 of the Federal Rules of Civil Procedure. Not surprisingly, plaintiff opposes all of the above motions. In addition, plaintiff requests leave from this court to amend his...