Transport Wkrs. Union Local 100 v. NYC Transit Authority

06-3016-cv
Transport Wkrs. Union Local 100 v. NYC Transit Authority
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2007 3
(Argued September 19, 2007 Decided October 16, 2007) 4
Docket No. 06-3016-cv 5
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TRANSPORT WORKERS UNION OF AMERICA, LOCAL 100, AFL-CIO; 7
ROGER TOUSSAINT, AS PRESIDENT OF TRANSPORT WORKERS 8
UNION, LOCAL 100, AFL-CIO; TRANSPORT WORKERS UNION OF 9
AMERICA, AFL-CIO; SONNY HALL, AS PRESIDENT OF TRANSPORT 10
WORKERS UNION OF AMERICA, AFL-CIO; AMALGAMATED TRANSIT 11
UNION, LOCAL 726; AND ANGELA TANZI, AS PRESIDENT OF 12
AMALGAMATED TRANSIT UNION, LOCAL 726, 13
Plaintiffs-Appellants, 14
v. 15
NEW YORK CITY TRANSIT AUTHORITY, AND MANHATTAN AND 16
BRONX SURFACE TRANSIT OPERATING AUTHORITY, 17
Defendants-Appellees. 18
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20
B e f o r e: MESKILL, MINER and CABRANES, Circuit Judges. 21
This appeal follows a bench trial and entry of judgment 22
pursuant to Fed. R. Civ. P. 54(b) in the United States District 23
Court for the Southern District of New York, Scheindlin, J., on 24
issues relating to the Transit Authority’s sick leave policy as 25
applied to certain Union-represented employees. 26
Appeal dismissed for lack of jurisdiction. 27

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WALTER M. MEGINNISS, New York, NY (Margaret 1
A. Malloy, Gladstein, Reif & Meginniss, 2
New York, NY, David B. Rosen General 3
Counsel, Transport Workers Union of 4
America, AFL-CIO, New York, NY, of 5
counsel), 6
for Appellants. 7
RICHARD SCHOOLMAN, New York City Transit 8
Authority, Brooklyn, NY (Baimusa Kamara, 9
New York City Transit Authority, 10
Brooklyn, NY, of counsel), 11
for Appellees. 12
MESKILL, Circuit Judge: 13
In this case challenging the Transit Authority’s sick 14
leave policy we must decide whether the judgment entered pursuant 15
to Fed. R. Civ. P. 54(b) was proper, thereby giving us 16
jurisdiction to hear this appeal. We hold that it was not and 17
dismiss the appeal. 18
This appeal follows a bench trial and entry of judgment 19
pursuant to Fed. R. Civ. P. 54(b) in the United States District 20
Court for the Southern District of New York, Scheindlin, J., on 21
issues relating to the Transit Authority’s sick leave policy as 22
applied to certain Union-represented employees. 23
BACKGROUND 24
The plaintiffs in this case are three labor unions and 25
their respective presidents: Transport Workers Union of America, 26
Local 100, Roger Toussaint, President; Transport Workers Union of 27
America, AFL-CIO, Sonny Hall, President; and Amalgamated Transit 28
Union Local 726, Angelo Tanzi, President (hereinafter 29

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collectively referred to as the “Unions”). The defendants, the 1
New York City Transit Authority and the Manhattan and Bronx 2
Surface Transit Operating Authority (hereinafter jointly referred 3
to as the “TA”) operate mass transit in New York City. 4
Certain New York City mass transit workers and their 5
unions challenge the continuing legality of their employers’ 6
long-standing sick leave policy (also referred to hereinafter as 7
the “policy”) claiming the Policy violates certain prohibitions 8
set forth in Title I of the Americans with Disabilities Act 9
(ADA). Setting aside differences relating to the policy as 10
applied to particular classes of Union-represented workers, the 11
parties’ allegations are relatively straightforward. 12
In pertinent part, the sick leave policy, applicable to 13
members of the Unions who work for the TA, requires those who 14
claim sick leave to file a written application in which they must 15
identify the nature of their illness or disability. Most 16
employees absent for three days or more also must include a 17
doctor’s certification of their diagnosis or treatment plan and 18
may have to submit to a TA-sponsored medical examination. 19
Moreover, certain employees on a “control list” which identifies 20
abusers of the sick leave benefit must include medical 21
certification for absences of any length. 22
The ADA provides that “[a] covered entity shall not 23
require a medical examination and shall not make inquiries of an 24

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employee as to whether such employee is an individual with a 1
disability or as to the nature or severity of the disability, 2
unless such examination or inquiry is shown to be job-related and 3
consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A). 4
The Unions maintain, inter alia, that requiring employees to 5
disclose their medical conditions or to provide doctor’s 6
certification of their illnesses tends to reveal ADA-covered 7
disabilities such as HIV status, asthma, cancer and depression, 8
and that such requirements further violate our holding in Conroy 9
v. N.Y. State Dep’t of Corr. Servs., 333 F.3d 88, 95-96 (2d Cir. 10
2003), that a similar policy instituted by the New York State 11
Department of Corrections implicates a prohibited “inquiry” under 12
the ADA. 13
The Unions seek a declaration that the TA’s continued 14
reliance on the policy violates the ADA and an injunction 15
prohibiting its enforcement against all Union-represented 16
employees. Apparently hoping to encourage resolution of the 17
differing claims of various classes of Union-represented TA 18
employees, the district court held a bench trial from September 7 19
to September 14, 2004 on the viability of the policy as applied 20
to one affected group, Bus Operators and another, Station 21
Cleaners. See generally Transp. Workers Union v. N.Y. City 22
Transit Auth., 341 F.Supp.2d 432 (S.D.N.Y. 2004). 23
At trial, the TA offered two broad justifications for 24

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the policy: the curbing of sick leave abuse and the maintenance 1
of workplace and public safety. Id. at 437. The district court 2
found: 3
[T]he Policy’s inquiries are within the scope of the ADA 4
Prohibition, and the asserted business necessity of 5
curbing sick leave abuse is adequate to justify the 6
Policy as it stands only with respect to those employees 7
who meet the criteria of the Authority’s sick leave 8
control list. However, the asserted business necessity 9
of maintaining safety is sufficient to justify the Policy 10
with respect to safety-sensitive employees, including bus 11
operators. A further trial will be required to determine 12
whether safety concerns may justify the policy (as it 13
stands) with respect to other groups of employees, or to 14
all employees. 15
Id. at 453-54. 16
Following this determination, both the Unions and the 17
TA sought certification to file an interlocutory appeal pursuant 18
to 28 U.S.C. § 1292(b), a request the district court granted. 19
See generally Transp. Workers Union v. N.Y. City Transit Auth., 20
358 F.Supp.2d 347 (S.D.N.Y. 2005). On March 8, 2006, we denied 21
the petition and dismissed the interlocutory appeal because the 22
parties had not demonstrated exceptional circumstances 23
“justify[ing] a departure from the basic policy of postponing 24
appellate review until after the entry of a final judgment.” 25
Transp. Workers Union v. NY City Transit Auth., 05-8005-mv (2d 26
Cir. Mar. 8, 2006) (unpublished order) (alterations in original) 27
(citations and quotations omitted). 28
After we disposed of the interlocutory petition, the 29

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district court considered the Union’s request for entry of 1
judgment pursuant to Rule 54(b), originally filed as an 2
additional cross motion to the TA’s request for interlocutory 3
appeal. By an order dated May 26, 2006 and Judgment filed June 4
12, 2006, the district court granted the Unions’ motion for entry 5
of final judgment dismissing plaintiffs’ claim as to all of the 6
defendants’ employees in the title of bus operator. 7
The district court’s Order Directing Entry of Final 8
Judgment Pursuant to Rule 54(b), in part, recites: 9
WHEREAS, the Court held, by Opinion and Order dated 10
October 12, 2004, that defendants had not sustained their 11
burden of showing that the asserted business necessity of 12
curbing sick leave abuse justifies the sick leave medical 13
inquiry policy as to either Station Cleaners or Bus 14
Operators, except as to those on the sick leave control 15
list, as to whom the Court held defendants had met that 16
burden; and 17
18
WHEREAS, the Court held, by Opinion and Order dated 19
October 12, 2004, that defendants had sustained their 20
burden of showing that the asserted business necessity of 21
assuring safety justifies the sick leave medical inquiry 22
policy as to Bus Operators; and . . . . 23
24
WHEREAS the Court’s October 12, 2004 ruling finally 25
disposes of the claim that the sick leave medical inquiry 26
policy as applied to Bus Operators violates the ADA; and 27
28
WHEREAS, the disposition of the claim as to Bus Operators 29
is an ultimate disposition of a separate claim entered in 30
the course of a multiple claim action; . . . . 31
NOW, THEREFORE, the clerk of Court is directed to enter 32
judgment pursuant to Rule 54(b), Fed. R. Civ. P., 33
dismissing plaintiffs’ claim as to all of the defendants’ 34
employees in the title of Bus Operator . . . . 35
On June 26, 2006, the Unions filed their Notice of Appeal. The 36

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TA, however, has not filed a cross appeal. 1
DISCUSSION 2
Ordinarily, we have jurisdiction only over appeals from 3
final decisions of the district court. 28 U.S.C. § 1291; see 4
Smith ex rel. Smith v. Half Hollow Hills Cent. Sch. Dist., 298 5
F.3d 168, 171 (2d Cir. 2002). A “final” decision embodied in a 6
“final” judgment “is one that conclusively determines the pending 7
claims of all the parties to the litigation, leaving nothing for 8
the court to do but execute its decision.” Citizens Accord v. 9
Town of Rochester, 235 F.3d 126, 128 (2d Cir. 2000). 10
Under Rule 54(b), however, a district court may certify 11
a final judgment where: (1) there are multiple claims or parties; 12
(2) at least one claim or the rights and liabilities of at least 13
one party has been determined; and (3) there is “an express 14
determination that there is no just reason for delay.” We review 15
a district court’s Rule 54(b) certification for abuse of 16
discretion. See, e.g., L.B. Foster Co. v. America Piles, 138 17
F.3d 81, 86 (2d Cir. 1998). 18
A district court’s grant of Rule 54(b) certification 19
does not automatically require us to review the merits of the 20
appeal. See 10 Wright, Miller & Kane, Federal Practice and 21
Procedure § 2655, at 40 (3d ed. 1998). “Not all final judgments 22
on individual claims should be immediately appealable, even if 23
they are in some sense separable from the remaining unresolved 24

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claims.” Curtiss-Wright Corp. v. Gen. Elec., 446 U.S. 1, 8 1
(1980). Even if separable, if it appears that a claim already 2
determined could again be subject to review in a subsequent 3
appeal, then Rule 54(b) certification is improper. See id.; 4
Nat’l Bank of Washington v. Dolgov, 853 F.2d 57, 58 (2d Cir. 5
1988) (per curiam). 6
Although the district court’s certification parses out 7
“Bus Operators” as a distinct party, the complaint itself is 8
brought by the Unions on behalf of all Union-represented transit 9
workers; accordingly, it is unclear that there actually has been 10
a decision relating to “one party” as contemplated by Rule 54(b). 11
Furthermore, it does not appear either that one claim or the 12
rights and liabilities of one party has been finally decided. 13
The district court found no reason to delay review of 14
the Unions’ appeal of its decision that the policy can be applied 15
to Bus Operators based on safety concerns. The court reasoned 16
that “the claim as to Bus Operators is severable from the rest of 17
the complaint, as the claims as to other employees in other job 18
titles will require different exhibits, proof, and witnesses, and 19
different operative facts will determine the result.” 20
The district court’s conclusion that all claims 21
involving Bus Operators have been determined is questionable. As 22
was made clear in its briefs and at oral argument, the TA still 23
disputes and intends to appeal the district court’s determination 24
that it has not met its burden of showing that the policy, to the 25

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extent it generally is designed to curb sick leave abuse by all 1
employees, is a legal business necessity under the ADA. The TA 2
has not cross-appealed the “sick leave abuse” issue and by the 3
explicit terms of the district court’s Rule 54(b) certification, 4
that issue is not before us. 5
Because the Unions only have appealed the “safety” 6
issue as applied to Bus Operators, questions surrounding both 7
sick leave abuse and the safety-sensitivity of various other job 8
titles are likely to be raised in a subsequent appeal, either by 9
the TA or by the Unions, thereby making the certification here 10
inappropriate. Thus, while we appreciate the district court’s 11
desire to encourage resolution of this action by providing the 12
parties guidance on the issue of “business necessity,” we should 13
not review the merits of this appeal in its present posture. 14
See Info. Res. v. Dunn and Bradstreet Corp., 294 F.3d 447, 451-52 15
(2d Cir. 2002) (non-final rulings include orders dismissing only 16
a portion of a claim); Ginett v. Computer Task Group, 962 F.2d 17
1085, 1092 (2d Cir. 1992) (“final decision” under Rule 54 leaves 18
nothing to do but execute the judgment); Hogan v. Consol. Rail 19
Corp., 961 F.2d 1021, 1025 (2d Cir. 1992) (certification is 20
inappropriate “if the same or closely related issues remain to be 21
litigated against the undismissed defendants”). 22
CONCLUSION 23
We conclude the district court committed legal error in 24
granting the Unions’ motion for certification under Rule 54(b). 25

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The appeal is dismissed for want of jurisdiction, and the case is 1
remanded for further proceedings. 2

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