     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



                                      -2-
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



                                     -3-
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



                                      -4-
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



                                       -5-
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


                                     -6-
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



                                      -7-
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

                                      -8-
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).

                                     -9-
1   The appeal is dismissed for want of jurisdiction, and the case is

2   remanded for further proceedings.




                                  -10-
