Transport Wkrs. Union Local 100 v. NYC Transit Authority

06-3016-cv
Transport Wkrs. Union Local 100 v. NYC Transit Authority

1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT

3 August Term, 2007

4 (Argued September 19, 2007 Decided October 16, 2007)

5 Docket No. 06-3016-cv

6 -------------------------------------------------------
7 TRANSPORT WORKERS UNION OF AMERICA, LOCAL 100, AFL-CIO;
8 ROGER TOUSSAINT, AS PRESIDENT OF TRANSPORT WORKERS
9 UNION, LOCAL 100, AFL-CIO; TRANSPORT WORKERS UNION OF
10 AMERICA, AFL-CIO; SONNY HALL, AS PRESIDENT OF TRANSPORT
11 WORKERS UNION OF AMERICA, AFL-CIO; AMALGAMATED TRANSIT
12 UNION, LOCAL 726; AND ANGELA TANZI, AS PRESIDENT OF
13 AMALGAMATED TRANSIT UNION, LOCAL 726,

14 Plaintiffs-Appellants,

15 v.

16 NEW YORK CITY TRANSIT AUTHORITY, AND MANHATTAN AND
17 BRONX SURFACE TRANSIT OPERATING AUTHORITY,

18 Defendants-Appellees.
19 -------------------------------------------------------
20

21 B e f o r e: MESKILL, MINER and CABRANES, Circuit Judges.

22 This appeal follows a bench trial and entry of judgment

23 pursuant to Fed. R. Civ. P. 54(b) in the United States District

24 Court for the Southern District of New York, Scheindlin, J., on

25 issues relating to the Transit Authority’s sick leave policy as

26 applied to certain Union-represented employees.

27 Appeal dismissed for lack of jurisdiction.
1 WALTER M. MEGINNISS, New York, NY (Margaret
2 A. Malloy, Gladstein, Reif & Meginniss,
3 New York, NY, David B. Rosen General
4 Counsel, Transport Workers Union of
5 America, AFL-CIO, New York, NY, of
6 counsel),
7 for Appellants.

8 RICHARD SCHOOLMAN, New York City Transit
9 Authority, Brooklyn, NY (Baimusa Kamara,
10 New York City Transit Authority,
11 Brooklyn, NY, of counsel),
12 for Appellees.

13 MESKILL, Circuit Judge:

14 In this case challenging the Transit Authority’s sick

15 leave policy we must decide whether the judgment entered pursuant

16 to Fed. R. Civ. P. 54(b) was proper, thereby giving us

17 jurisdiction to hear this appeal. We hold that it was not and

18 dismiss the appeal.

19 This appeal follows a bench trial and entry of judgment

20 pursuant to Fed. R. Civ. P. 54(b) in the United States District

21 Court for the Southern District of New York, Scheindlin, J., on

22 issues relating to the Transit Authority’s sick leave policy as

23 applied to certain Union-represented employees.

24 BACKGROUND

25 The plaintiffs in this case are three labor unions and

26 their respective presidents: Transport Workers Union of America,

27 Local 100, Roger Toussaint, President; Transport Workers Union of

28 America, AFL-CIO, Sonny Hall, President; and Amalgamated Transit

29 Union Local 726, Angelo Tanzi, President (hereinafter

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1 collectively referred to as the “Unions”). The defendants, the

2 New York City Transit Authority and the Manhattan and Bronx

3 Surface Transit Operating Authority (hereinafter jointly referred

4 to as the “TA”) operate mass transit in New York City.

5 Certain New York City mass transit workers and their

6 unions challenge the continuing legality of their employers’

7 long-standing sick leave policy (also referred to hereinafter as

8 the “policy”) claiming the Policy violates certain prohibitions

9 set forth in Title I of the Americans with Disabilities Act

10 (ADA). Setting aside differences relating to the policy as

11 applied to particular classes of Union-represented workers, the

12 parties’ allegations are relatively straightforward.

13 In pertinent part, the sick leave policy, applicable to

14 members of the Unions who work for the TA, requires those who

15 claim sick leave to file a written application in which they must

16 identify the nature of their illness or disability. Most

17 employees absent for three days or more also must include a

18 doctor’s certification of their diagnosis or treatment plan and

19 may have to submit to a TA-sponsored medical examination.

20 Moreover, certain employees on a “control list” which identifies

21 abusers of the sick leave benefit must include medical

22 certification for absences of any length.

23 The ADA provides that “[a] covered entity shall not

24 require a medical examination and shall not make inquiries of an

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1 employee as to whether such employee is an individual with a

2 disability or as to the nature or severity of the disability,

3 unless such examination or inquiry is shown to be job-related and

4 consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A).

5 The Unions maintain, inter alia, that requiring employees to

6 disclose their medical conditions or to provide doctor’s

7 certification of their illnesses tends to reveal ADA-covered

8 disabilities such as HIV status, asthma, cancer and depression,

9 and that such requirements further violate our holding in Conroy

10 v. N.Y. State Dep’t of Corr. Servs., 333 F.3d 88, 95-96 (2d Cir.

11 2003), that a similar policy instituted by the New York State

12 Department of Corrections implicates a prohibited “inquiry” under

13 the ADA.

14 The Unions seek a declaration that the TA’s continued

15 reliance on the policy violates the ADA and an injunction

16 prohibiting its enforcement against all Union-represented

17 employees. Apparently hoping to encourage resolution of the

18 differing claims of various classes of Union-represented TA

19 employees, the district court held a bench trial from September 7

20 to September 14, 2004 on the viability of the policy as applied

21 to one affected group, Bus Operators and another, Station

22 Cleaners. See generally Transp. Workers Union v. N.Y. City

23 Transit Auth., 341 F.Supp.2d 432 (S.D.N.Y. 2004).

24 At trial, the TA offered two broad justifications for

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1 the policy: the curbing of sick leave abuse and the maintenance

2 of workplace and public safety. Id. at 437. The district court

3 found:

4 [T]he Policy’s inquiries are within the scope of the ADA
5 Prohibition, and the asserted business necessity of
6 curbing sick leave abuse is adequate to justify the
7 Policy as it stands only with respect to those employees
8 who meet the criteria of the Authority’s sick leave
9 control list. However, the asserted business necessity
10 of maintaining safety is sufficient to justify the Policy
11 with respect to safety-sensitive employees, including bus
12 operators. A further trial will be required to determine
13 whether safety concerns may justify the policy (as it
14 stands) with respect to other groups of employees, or to
15 all employees.

16 Id. at 453-54.

17 Following this determination, both the Unions and the

18 TA sought certification to file an interlocutory appeal pursuant

19 to 28 U.S.C. § 1292(b), a request the district court granted.

20 See generally Transp. Workers Union v. N.Y. City Transit Auth.,

21 358 F.Supp.2d 347 (S.D.N.Y. 2005). On March 8, 2006, we denied

22 the petition and dismissed the interlocutory appeal because the

23 parties had not demonstrated exceptional circumstances

24 “justify[ing] a departure from the basic policy of postponing

25 appellate review until after the entry of a final judgment.”

26 Transp. Workers Union v. NY City Transit Auth., 05-8005-mv (2d

27 Cir. Mar. 8, 2006) (unpublished order) (alterations in original)

28 (citations and quotations omitted).

29 After we disposed of the interlocutory petition, the

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1 district court considered the Union’s request for entry of

2 judgment pursuant to Rule 54(b), originally filed as an

3 additional cross motion to the TA’s request for interlocutory

4 appeal. By an order dated May 26, 2006 and Judgment filed June

5 12, 2006, the district court granted the Unions’ motion for entry

6 of final judgment dismissing plaintiffs’ claim as to all of the

7 defendants’ employees in the title of bus operator.

8 The district court’s Order Directing Entry of Final

9 Judgment Pursuant to Rule 54(b), in part, recites:

10 WHEREAS, the Court held, by Opinion and Order dated
11 October 12, 2004, that defendants had not sustained their
12 burden of showing that the asserted business necessity of
13 curbing sick leave abuse justifies the sick leave medical
14 inquiry policy as to either Station Cleaners or Bus
15 Operators, except as to those on the sick leave control
16 list, as to whom the Court held defendants had met that
17 burden; and
18
19 WHEREAS, the Court held, by Opinion and Order dated
20 October 12, 2004, that defendants had sustained their
21 burden of showing that the asserted business necessity of
22 assuring safety justifies the sick leave medical inquiry
23 policy as to Bus Operators; and . . . .
24
25 WHEREAS the Court’s October 12, 2004 ruling finally
26 disposes of the claim that the sick leave medical inquiry
27 policy as applied to Bus Operators violates the ADA; and
28
29 WHEREAS, the disposition of the claim as to Bus Operators
30 is an ultimate disposition of a separate claim entered in
31 the course of a multiple claim action; . . . .

32 NOW, THEREFORE, the clerk of Court is directed to enter
33 judgment pursuant to Rule 54(b), Fed. R. Civ. P.,
34 dismissing plaintiffs’ claim as to all of the defendants’
35 employees in the title of Bus Operator . . . .

36 On June 26, 2006, the Unions filed their Notice of Appeal. The

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1 TA, however, has not filed a cross appeal.

2 DISCUSSION

3 Ordinarily, we have jurisdiction only over appeals from

4 final decisions of the district court. 28 U.S.C. § 1291; see

5 Smith ex rel. Smith v. Half Hollow Hills Cent. Sch. Dist., 298

6 F.3d 168, 171 (2d Cir. 2002). A “final” decision embodied in a

7 “final” judgment “is one that conclusively determines the pending

8 claims of all the parties to the litigation, leaving nothing for

9 the court to do but execute its decision.” Citizens Accord v.

10 Town of Rochester, 235 F.3d 126, 128 (2d Cir. 2000).

11 Under Rule 54(b), however, a district court may certify

12 a final judgment where: (1) there are multiple claims or parties;

13 (2) at least one claim or the rights and liabilities of at least

14 one party has been determined; and (3) there is “an express

15 determination that there is no just reason for delay.” We review

16 a district court’s Rule 54(b) certification for abuse of

17 discretion. See, e.g., L.B. Foster Co. v. America Piles, 138

18 F.3d 81, 86 (2d Cir. 1998).

19 A district court’s grant of Rule 54(b) certification

20 does not automatically require us to review the merits of the

21 appeal. See 10 Wright, Miller & Kane, Federal Practice and

22 Procedure § 2655, at 40 (3d ed. 1998). “Not all final judgments

23 on individual claims should be immediately appealable, even if

24 they are in some sense separable from the remaining unresolved

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1 claims.” Curtiss-Wright Corp. v. Gen. Elec., 446 U.S. 1, 8

2 (1980). Even if separable, if it appears that a claim already

3 determined could again be subject to review in a subsequent

4 appeal, then Rule 54(b) certification is improper. See id.;

5 Nat’l Bank of Washington v. Dolgov, 853 F.2d 57, 58 (2d Cir.

6 1988) (per curiam).

7 Although the district court’s certification parses out

8 “Bus Operators” as a distinct party, the complaint itself is

9 brought by the Unions on behalf of all Union-represented transit

10 workers; accordingly, it is unclear that there actually has been

11 a decision relating to “one party” as contemplated by Rule 54(b).

12 Furthermore, it does not appear either that one claim or the

13 rights and liabilities of one party has been finally decided.

14 The district court found no reason to delay review of

15 the Unions’ appeal of its decision that the policy can be applied

16 to Bus Operators based on safety concerns. The court reasoned

17 that “the claim as to Bus Operators is severable from the rest of

18 the complaint, as the claims as to other employees in other job

19 titles will require different exhibits, proof, and witnesses, and

20 different operative facts will determine the result.”

21 The district court’s conclusion that all claims

22 involving Bus Operators have been determined is questionable. As

23 was made clear in its briefs and at oral argument, the TA still

24 disputes and intends to appeal the district court’s determination

25 that it has not met its burden of showing that the policy, to the

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1 extent it generally is designed to curb sick leave abuse by all

2 employees, is a legal business necessity under the ADA. The TA

3 has not cross-appealed the “sick leave abuse” issue and by the

4 explicit terms of the district court’s Rule 54(b) certification,

5 that issue is not before us.

6 Because the Unions only have appealed the “safety”

7 issue as applied to Bus Operators, questions surrounding both

8 sick leave abuse and the safety-sensitivity of various other job

9 titles are likely to be raised in a subsequent appeal, either by

10 the TA or by the Unions, thereby making the certification here

11 inappropriate. Thus, while we appreciate the district court’s

12 desire to encourage resolution of this action by providing the

13 parties guidance on the issue of “business necessity,” we should

14 not review the merits of this appeal in its present posture.

15 See Info. Res. v. Dunn and Bradstreet Corp., 294 F.3d 447, 451-52

16 (2d Cir. 2002) (non-final rulings include orders dismissing only

17 a portion of a claim); Ginett v. Computer Task Group, 962 F.2d

18 1085, 1092 (2d Cir. 1992) (“final decision” under Rule 54 leaves

19 nothing to do but execute the judgment); Hogan v. Consol. Rail

20 Corp., 961 F.2d 1021, 1025 (2d Cir. 1992) (certification is

21 inappropriate “if the same or closely related issues remain to be

22 litigated against the undismissed defendants”).

23 CONCLUSION

24 We conclude the district court committed legal error in

25 granting the Unions’ motion for certification under Rule 54(b).

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1 The appeal is dismissed for want of jurisdiction, and the case is

2 remanded for further proceedings.

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