     09-4746-cv
     Vandermark v. City of N.Y.

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .


 1            At a stated term of the United States Court of                     Appeals
 2       for the Second Circuit, held at the Daniel Patrick                     Moynihan
 3       United States Courthouse, 500 Pearl Street, in the                     City of
 4       New York, on the 7 th day of September, two thousand                   ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                REENA RAGGI,
 9                              Circuit Judge
10                JED S. RAKOFF, *
11                              District Judge.
12
13       - - - - - - - - - - - - - - - - - - - -X
14       Marshall Vandermark, as Environmental
15       Police Officers employed by New York
16       City, and Law Enforcement Employees
17       Benevolent Association LEEBA et al.
18                Plaintiffs-Appellants,
19
20       Jon Shamaro, Jason Shaw, Matthew Wood,
21                Plaintiffs,
22
23                    -v.-                                               09-4746-cv
24



                *
               District Judge Jed S. Rakoff, Judge of the United
         States District Court for the Southern District of New York,
         sitting by designation.
 1   City of New York, Water Board for New
 2   York City, Department of Environmental
 3   Protection, Local 300 SEIU, Mayor
 4   Michael Bloomberg, Commissioner Emily
 5   Lloyd, Chief Edward Welch,
 6   individually and in their
 7   representative capacities, President
 8   James Golden, Local 300, SEIU, & Local
 9   300 SEIU,
10             Defendants-Appellees.
11   - - - - - - - - - - - - - - - - - - - -X
12
13   APPEARING FOR APPELLANTS:     RICHARD J. MERRITT, Lindenhurst,
14                                 NY.
15
16   APPEARING FOR APPELLEES:      SUSAN B. EISNER, Stephen J.
17                                 McGrath, Donna Anne Canfield,
18                                 Michael A. Cardozo, Corporation
19                                 Counsel of the City of New York,
20                                 New York, NY.
21
22                                 JOEL SPIVAK, Mirkin & Gordon,
23                                 P.C., Great Neck, NY, for
24                                 Defendant-Appellee Local 300
25                                 SEIU.
26
27          Appeal from a judgment of the United States District

28   Court for the Southern District of New York (Scheindlin,

29   J.).

30          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

31   AND DECREED that the judgment is AFFIRMED.

32          Plaintiffs appeal from a May 4, 2009 order of the

33   United States District Court for the Southern District of

34   New York (Scheindlin, J.).    In the main, they are

35   Environmental Police Officers (EPOs) employed by the City of

36   New York.    They assert various state and federal claims


                                    2
1    principally challenging their compensation and benefits.

2    The district court dismissed the federal claims for failure

3    to state a cause of action, and declined to exercise

4    supplemental jurisdiction over the state law claims.     We

5    otherwise assume the parties’ familiarity with the

6    underlying facts, the case’s procedural history, and the

7    issues presented for review.   We review the district court’s

8    order de novo.   E.g., Ruston v. Town Bd. for Town of

9    Skaneateles, 610 F.3d 55, 58 (2d Cir. 2010).

10       The plaintiffs appeal the dismissal of their claims

11   under the Fair Labor Standards Act (FLSA), the Age

12   Discrimination in Employment Act (ADEA), the Labor

13   Management Relations Act (LMRA), the Employee Retirement

14   Income Security Act (ERISA), and Title VII of the Civil

15   Rights Act; and their 42 U.S.C. §§ 1983 and 1985 equal

16   protection claims.   Dismissal of the other claims is either

17   unchallenged on appeal, or the challenge is forfeited.        See,

18   e.g., Tolbert v. Queens Coll., 242 F.3d 58, 75 (2d Cir.

19   2001) (“It is a settled appellate rule that issues adverted

20   to in a perfunctory manner, unaccompanied by some effort at

21   developed argumentation, are deemed waived.” (internal

22   quotation marks omitted)).




                                    3
1        The district court correctly dismissed the plaintiffs’

2    ADEA, Title VII, Equal Protection, and LMRA and ERISA

3    claims.

4        •     Title VII: To establish their Title VII claim, the

5              plaintiffs would need to show employment

6              discrimination on the basis of “race, color,

7              religion, sex, or national origin.”   42 U.S.C.

8              § 2000e-2(a)(1).   They alleged no such nexus.

9        •     ADEA: To establish their ADEA claim, the

10             plaintiffs would need to show employment

11             discrimination on the basis of age.   29 U.S.C.

12             § 623(a)(1).   Alleging unequal retirement benefits

13             does not allege age discrimination.

14       •     Equal Protection: To establish their §§ 1983 and

15             1985 equal protection claims, the plaintiffs would

16             need to show that there is no “reasonably

17             conceivable state of facts that could provide a

18             rational basis for the classification.”     Yuen Jin

19             v. Mukasey, 538 F.3d 143, 158 (2d Cir. 2008)

20             (emphasis in original).   As the district court

21             observed, “[t]here are numerous reasonable bases

22             on which the City of New York might decide that

23             NYPD officers and EPOs should receive different

24             compensation and benefits, including the danger

                                    4
1                associated with the positions, the physical strain

2                of the job, and the cost of living in the areas in

3                which NYPD officers and EPOs work.”   Vandermark v.

4                City of N.Y., 615 F. Supp. 2d 196, 209 (S.D.N.Y.

5                2009)

6        •       LMRA and ERISA: Neither the LMRA nor ERISA, in

7                relevant part, applies to state “political

8                subdivision[s].”   29 U.S.C. § 152(2) (LMRA); 29

9                U.S.C. §§ 1002(32), 1003(b) (ERISA); cf. Ford v.

10               D.C. 37 Union Local 1549, 579 F.3d 187, 188 (2d

11               Cir. 2009) (per curiam) (“It is clear to us . . .

12               that the New York City Department of Health and

13               Mental Hygiene is a ‘political subdivision’ of New

14               York that is exempt under § 152(2).”).

15       Respecting the plaintiffs’ FLSA claim, the district

16   court correctly applied the § 207(k) exemption, 29 U.S.C.

17   § 207(k).    Based on the undisputed facts of this case, EPOs

18   [1] are “empowered . . . to enforce laws . . . , and to

19   prevent and detect crimes”; [2] “ha[ve] the power to

20   arrest”; and [3] “undergo on-the-job training and/or a

21   course of instruction and study which typically includes

22   physical training, self-defense, firearm proficiency,

23   criminal and civil law principles, investigative and law



                                      5
1   enforcement techniques, community relations, medical aid and

2   ethics.”   29 C.F.R. § 553.211(a).

3       Finding no merit in the plaintiffs’ remaining

4   arguments, we hereby AFFIRM the district court’s judgment.

5
6
7                               FOR THE COURT:
8                               CATHERINE O’HAGAN WOLFE, CLERK
9




                                  6
