Opinion
95 Civ. 0742 (JFK), 95 Civ. 10838 (JFK)
March 14, 2002
Plaintiffs, Pro Se: Robert J. Devlin, River Edge, New Jersey; Andrew Hagan, New York, New York; Mary Milone, Hallendale, Florida; Barbara Pupa, Smithtown, New York; Frederick Rinckwitz, New York, New York
For Defendants Transportation Communications International Union and Robert A. Scardelletti: SHAPIRO, BEILLY, ROSENBERG, ARONOWITZ, LEVY FOX New York, New York. Of Counsel: Barry I. Levy, Esq.; GUERRIERI, EDMOND CLAYMAN, P.C., Washington, D.C. Of Counsel: John A. Edmond, Esq.
OPINION and ORDER
Before the Court is the motion of the Defendants Transportation Communications International Union and Robert A. Scardelletti (collectively "TCU") for summary judgment pursuant to Fed.R.Civ.P. 56. The Plaintiffs, Robert J. Devlin, Andrew Hagan, Thomas Hewson, who is now deceased, Mary Milone, and Frederick Rinckwitz, allege that TCU discriminated against them because of their ages and then retaliated against them for asserting their legal rights in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-101 et seq. Plaintiffs also allege that TCU engaged in age discrimination in violation of the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. § 10:5-1 et seq. and committed common law conversion. TCU moves for summary judgment on all claims. Plaintiffs oppose the motion for summary judgment. For the reasons stated below, TCU's motion for summary judgment is granted in its entirety.
Pursuant to Fed.R.Civ.P. 25(a)(1), the Court grants Plaintiffs' request to substitute Barbara Pupa for her late father, Thomas Hewson, as an individual plaintiff in this matter.
TCU actually brought this as a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) or, in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56. Because both sides conducted discovery and submitted supporting materials, the Court will treat the instant motion as one for summary judgment. See Chambers v. Time Warner, Inc., No. 01 Civ. 7010, 2002 WL 244320, at *4 (S.D.N.Y. Feb. 21, 2002).
Background
This case comes to this Court on remand from the Second Circuit Court of Appeals. See Devlin v. Transportation Communications Int'l Union, No. 95 Civ. 10838, 175 F.3d 121 (2d Cir. 1999) ("Devlin II"); Devlin v. Transportation Communications Int'l Union, No. 95 Civ. 0742, 173 F.3d 94 (2d Cir. 1999) ("Devlin I"). The case is a consolidation of two formerly separate actions, Devlin I and Devlin II, that stem from the following amendments to the TCU employee-benefits system: (1) the imposition of a $100 monthly fee on retired members for continued health benefits under TCU's medical plan; (2) the elimination of a 1991 cost-of-living adjustment ("COLA") to retired members' pension benefits under TCU's staff-retirement plan; and (3) the termination of a $300 death benefit paid to deceased members' families.In Devlin I, this Court originally dismissed Plaintiffs' challenges to the monthly medical benefits fee, finding that the state age discrimination claims were preempted by the Employee Retirement Income Security Act ("ERISA"). This Court also granted summary judgment in favor of TCU on the ERISA claims after concluding that the Medical Plan had been properly amended. See Devlin I, No. 95 Civ. 0742, 1995 WL 380374 (S.D.N.Y. June 26, 1995), and 1997 WL 570512 (S.D.N.Y. Sept. 15, 1997). As to Devlin II, this Court dismissed the claim regarding the medical benefits fee on res judicata grounds based upon the. prior decision inDevlin I. In addition, the Court granted summary judgment to TCU with respect to the death benefits claim, finding that the Death Benefit Fund, if it was governed by ERISA at all, had been properly amended, and that Plaintiffs had failed to demonstrate age discrimination because the elimination of benefits affected employees and retirees of all ages. This Court also dismissed the COLA claims because they were being adjudicated in the District of Maryland. See Devlin II, No. 95 Civ. 10838, 1997 WL 634179 (S.D.N.Y. Oct. 15, 1997), and 1998 WL 37545 (S.D.N.Y. Jan. 29, 1998).
Plaintiffs appealed this Court's rulings in both cases. With respect toDevlin I, the Second Circuit affirmed this Court's judgment in part and vacated it in part. It vacated dismissal of Plaintiffs' state law age discrimination claims, finding that they are not preempted by ERISA. The Second Circuit affirmed Devlin I in all other respects. See Devlin I, 173 F.3d at 104. On the appeal of Devlin II, the Second Circuit remanded Plaintiffs' claim that TCU committed conversion by eliminating the death benefit because this Court had not considered that claim. See Devlin II, 175 F.3d at 128. It also vacated dismissal of Plaintiffs' ADEA challenge to the medical benefits fee and suggested that this Court consider consolidating the remaining claims in Devlin II with those in Devlin I. See id. at 128-30. Finally, the Second Circuit affirmed Devlin II in all other respects and found in particular that the COLA claim should be adjudicated in the Maryland actions. See id. at 130-32.
This Court will now consider the remaining claims in this matter, specifically, the federal and state age discrimination claims based upon the imposition of a monthly medical benefits contribution and the conversion claim predicated on the elimination of the death benefit.
I. Class Action Status
There are conflicting indications regarding whether this lawsuit is a class action. Although nominally brought as one, Plaintiffs never moved to certify the purported class pursuant to Fed.R.Civ.P. 23. Indeed, the Second Circuit noted this detail in a prior decision, concluding that the case does not warrant class action treatment because this Court never evaluated the propriety of class certification. See Devlin I, 173 F.3d at 97 n. 1 ("Nothing in the record indicates that class action certification was requested or granted in this case. Therefore, we will not treat it as a class action.") (citing American Fed'n of Grain Millers, AFL-CIO v. International Multifoods Corp., 116 F.3d 976, 977 n. 1 (2d Cir. 1997)).
Since that decision, recent events now foreclose consideration of class certification in this case. On May 18, 2001, by action of the Grievance Committee of this Court, Plaintiffs' attorney was suspended from further practice in the Southern District of New York. Due to the suspension, the lawyer obviously cannot continue to appear on behalf of Plaintiffs. Furthermore, Plaintiffs have declined to retain new counsel and have decided to proceed with the case pro se. Even though Plaintiffs now maintain the action pro se, the instant motion became fully submitted prior to the lawyer's suspension.
In light of Plaintiffs' present pro se status, they cannot pursue this matter as a class action. See McLeod v. Crosson, No. 89 Civ. 1952, 1989 WL 28416, at *1 (S.D.N.Y. Mar. 21, 1989) ("It is well settled in this circuit that pro se plaintiffs cannot act as class representatives. They do not satisfy the requirements of Rule 23(a)(4)."). According to Rule 23(a)(4), a certified class representative must "fairly and adequately protect the interests of the class." Fed.R.Civ.P. 23(a)(4). Because a non-lawyer typically lacks the legal know-how essential to safeguard the interests of a proposed class, courts refuse to certify a class represented by a pro se litigant. See Gioroio v. Tennessee, 92 F.3d 1185, 1187 (6th Cir. 1996) (citing 7A Wright, Miller Kane, Federal Practice and Procedure § 1769.1 n. 12 (2d ed. 1986)). Based on Plaintiffs' failure to move for certification at any point during the course of the litigation and given their current pro se status, the Court concludes that this case involves only claims by the individual Plaintiffs, specifically, Devlin, Hagan, Hewson, who is now deceased, Milone, and Rinckwitz, against TCU.
II. Factual Background
The Court assumes familiarity with the factual background set forth in previous opinions of this Court, see Devlin II, 1997 WL 634179; Devlin I, 1997 WL 570512; Devlin I, 1995 WL 380374; and of the Second Circuit Court of Appeals, see Devlin II, 175 F.3d 121; Devlin I, 173 F.3d 94. Therefore, this Opinion and Order contains only those facts relevant to the instant motion.
Medical Benefits
Since 1964, TCU provided both its employees and its retirees with free medical benefits through its participation in the Railway Labor Organizations Group Life Hospital, Surgical and Medical Insurance Plan (the "Medical Plan"). Then, in December 1993, because of rising insurance premiums, the unions participating in the Medical Plan, including TCU, amended the Medical Plan by deleting the provision that "contributions are not to be made by employees" and by adding a provision that "participants' or employees' contributions toward the cost of the Plan is at a rate determined by their respective Organization." Devlin I, 1997 WL 570512, at *2 (quoting Plan Amendment No. 1) In light of the amendment, TCU voted to require a $100 monthly contribution from its participating retirees, effective January 1, 1994.
TCU decided to implement this contribution requirement out of concern that sharply rising health care costs would undermine the union's precarious financial position. See Parcelli Decl., Ex. 11 at 115. In the late 1980's and early 1990's, TCU found itself in dire financial straits due to a steady decline in union membership and a pattern of overspending by union officials. See Scardelletti Decl. ¶¶ 16-19. In response to its financial troubles, TCU implemented a number of cost-control measures. See id. ¶¶ 20-21. But just as cost-cutting initiatives began to pay off, premium payments under the Medical Plan started to soar. See id. ¶¶ 22-23. Travelers, the insurance carrier that administers the Medical Plan, attributed the rising rates to (1) continuing increases in medical care costs, (2) increasing utilization of Medical Plan benefits, and (3) increasing numbers of retired employees covered under the Medical Plan. See id., Exs. 5-7.
Eventually, TCU's cost-control measures did begin to reap rewards. For example, according to one TCU official who addressed union delegates at the August 1995 convention, "[TCU] finances are in the best condition they have ever been in. . . . We owe no one and we have money in the bank." Devlin Aff., Ex. 20. On August 9, 1995, this same union leader reported that as a result of putting TCU's financial house in order, "[t]oday TCU has $6.5 million in the bank to operate the union." Id., Ex. 21.
Ultimately, TCU decided to impose a monthly benefits fee on only retirees, starting January 1, 1994. TCU based its decision on several factors. For one, Travelers attributed the escalating premium payments, in part, to the rise in the number of retirees covered under the Medical Plan. Additionally, railroad employees represented by TCU who retired from rail carriers already were paying for medical benefits. See Scardelletti Decl. ¶ 31. Furthermore, TCU determined that imposing a contribution requirement on active TCU employees would undermine the unions s negotiating position with regard to the active railroad employees it represented. In collective bargaining negotiations on behalf of the railroad employees, TCU had resisted demands by rail carriers to impose a medical benefits fee on these workers. See id. ¶ 33; Ex. 26.
Under the TCU retirement system, an employee becomes eligible for retirement at age 55 with five years of service. In January 1994, ninety-four percent of the Medical Plan participants were aged 40 or older. See Taylor Decl. ¶¶ 2-3. In addition, eighty-five percent of the participants who were not required to pay the monthly surcharge were over age 40. See id. ¶¶ 5-6. TCU did not impose the monthly surcharge on its Canadian retirees because they received fewer benefits under the Medical Plan due to the increased benefits available under Canada's national health care program. See Scardelletti Decl. ¶ 35; Exs. 27-28.
The Death Benefit Fund
Almost eighty years ago, at its 1922 annual convention, the Union amended its constitution to establish a Death Benefit Fund ("DBF") for its members. See Parcelli Decl., Ex. 12. Initially, the union paid a death benefit ranging from $100 to $1500 out of the DBF to the members' beneficiaries. See Ferlin Decl. ¶ 5. But in 1928, at the advice of an actuary, the union reduced the death benefit to $500 by an amendment to the constitution. See id. ¶ 5. Just three years later, the union further reduced the death benefit to $300, again by an amendment to the constitution. See id. ¶ 6.
From the start, the union regarded the DBF as "a small gift, a remembrance for departed members." Devlin II, 1997 WL 634179, at *11. In addition, the funding of the DBF always came from an internal allocation of union funds, and therefore, no member ever made personal contributions to finance the DBF. See id. Furthermore, the union always maintained the DBF as part of the TCU General Fund, though as a separate account. The TCU constitution contains the terms of the DBF and, as a general matter, provides a procedure for amending constitutional provisions. This procedure entails either amendment by action of the TCU convention or amendment by referendum. See TCU const. art. 31. In accordance with this procedure, union delegates eliminated the DBF by amendment at the 1995 TCU convention, making the termination effective January 1, 1996.
Ensuing Litigation
Prior to consolidation, this case involved two employment discrimination actions filed by Plaintiffs against their former employer, TCU. On February 2, 1995, Plaintiffs, through counsel, filed the first employment discrimination action, Devlin I. In the Devlin I complaint, plaintiffs alleged, among other things, age discrimination in violation of "Section 296 of the New York State Human Rights Law, Section 8-107 of the Human Rights Law of the City of New York, and/or Section 10:5-12 of the New Jersey Law Against Discrimination." Devlin I Comp. ¶ 53. Plaintiffs asserted that the 1993 amendment of the Medical Plan constituted discrimination against older retirees in favor of younger officers and employees.
On June 26, 1995, this Court held that Plaintiffs' state-law claims for age discrimination were preempted under Section 514 of ERISA, 29 U.S.C. § 1144. In doing so, the decision noted that Plaintiffs had argued that their state-law claims withstood preemption because they alternatively could have been pled as a federal age discrimination claim under the ADEA. This Court rejected that argument, stating that "[i]f Plaintiffs have a federal age discrimination claim, they should plead it." Devlin I, 1995 WL 380374, at *4. Based upon this pronouncement, on December 22, 1995, Plaintiffs filed the Devlin II complaint, alleging, among other things, that TCU violated the ADEA by discriminating against retirees because of their ages and then by retaliating against them for asserting their legal rights.
Discussion
I. Summary Judgment Standards
This Court may grant summary judgment only if the moving party is entitled to judgment as a matter of law because there is no genuine dispute as to any material fact. See Silver v. City Univ. of New York, 947 F.2d 1021, 1022 (2d Cir. 1991); Montana v. First Fed. Sav. Loan Ass'n, 869 F.2d 100, 103 (2d Cir. 1989); Knight v. U.S. Fire Insur. Co., 804 F.2d 9, 11 (2d Cir. 1986). The role of the Court on such a motion "is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Knight, 804 F.2d at 11;see also First Fed. Sav. Loan Ass'n, 869 F.2d at 103 (stating that to resolve a summary judgment motion properly, a court must conclude that there are no genuine issues of material fact, and that all inferences must be drawn in favor of the non-moving party).
The movant bears the initial burden of informing the Court of the basis for its motion and identifying those portions of the "pleadings, depositions, answers to interrogatories, and admissions to file, together with affidavits, if any," that show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the movant meets this initial burden, the party opposing the motion must then demonstrate that there exists a genuine dispute as to the material facts. See id.; Silver, 947 F.2d at 1022.
The opposing party may not solely rely on its pleadings, on conclusory factual allegations, or on conjecture as to the facts that discovery might disclose. See Gray v. Darien, 927 F.2d 69, 74 (2d Cir. 1991). Rather, the opposing party must present specific evidence supporting its contention that there is a genuine material issue of fact. See Celotex Corp., 477 U.S. at 324; Twin Lab. Inc. v. Weider Health Fitness, 900 F.2d 566, 568 (2d Cir. 1990)
To show such a "genuine dispute," the opposing party must come forward with enough evidence to allow a reasonable jury to return a verdict in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Cinema North Corp. v. Plaza at Latham Assocs., 867 F.2d 135, 138 (2d Cir. 1989). If "the party opposing summary judgment propounds a reasonable conflicting interpretation of a material disputed fact," then summary judgment must be denied. Schering Corp. v. Home Ins. Co., 712 F.2d 4, 9-10 (2d Cir. 1983). Moreover, as the Second Circuit has instructed, a court must be "particularly cautious about granting summary judgment to an employer in a discrimination case when the employer's intent is in question. Because direct evidence of an employer's discriminatory intent will rarely be found, `affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (quoting Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994)). The Court will analyze TCU's summary judgment motion in accordance with these principles.
II. Age Discrimination Claims
A. Age Discrimination Claims Under the ADEA
Plaintiffs bring a claim under the ADEA charging that TCU discriminated against them on the basis of their ages. Specifically, Plaintiffs claim that TCU violated the ADEA when it imposed a monthly medical benefits fee on only retirees. TCU argues that because it implemented the challenged employment action solely based upon employment status, not age, Plaintiffs cannot establish a prima facie case of discrimination in light of Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993).
The ADEA prohibits an employer from discriminating "against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's age." 29 U.S.C. § 623 (a)(1). By enacting the ADEA, Congress intended to prevent employers from depriving older workers of employment opportunities based on "inaccurate and stigmatizing stereotypes." Hazen Paper, 507 U.S. at 610 (citing EEOC v. Wyoming, 460 U.S. 226, 231 (1983)). In Hazen Paper, the Supreme Court clarified the standards for ADEA liability, holding that the Act prohibits only employment decisions actually motivated by age and does not prohibit employment actions based on other factors, like pension status, seniority, and wage rate, that are empirically correlated with age. See id. at 611.
In explaining the rationale for its ruling, the Court focused on Congress's intent to prevent employment discrimination based on stigmatizing stereotypes of age:
It is the very essence of age discrimination for an older employee to be fired because the employer believes that productivity and competence decline with old age. . . . Congress's promulgation of the ADEA was prompted by its concern that older workers were being deprived of employment on the basis of inaccurate and stigmatizing stereotypes.
. . . .
When the employer's decision is wholly motivated by factors other than age, the problem of inaccurate and stigmatizing stereotypes disappears. This is true even if the motivating factor is correlated with age, as pension status typically is.Id. at 610-11 (emphasis in original).
In pressing their ADEA claim, Plaintiffs' appear to invoke the exception recognized in Hazen Paper for cases where an employer uses an age-correlated factor as a proxy for age discrimination. The Hazen Paper Court indicated that an employer's reliance on an age-correlated factor may constitute age discrimination when this factor serves as a proxy for age — to wit, when the employer was really motivated by age and simply used an age-correlated factor to mask an age-based employment decision. See Hazen Paper, 507 U.S. at 611.
In the absence of direct evidence, as in this case, a plaintiff may prove an employer's intent to discriminate by indirect proof. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). At the summary judgment stage, discrimination claims based on indirect evidence brought under the ADEA are analyzed using the same McDonnell Douglas framework as those brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. See Lanahan v. Mutual Life Insur. Co., 15 F. Supp.2d 381, 383 (S.D.N.Y. 1998) (citing Renz v. Grey Adver., Inc., 135 F.3d 217, 221 (2d Cir. 1997)). Under the McDonnell Douglas analysis, a plaintiff must first establish a prima facie case of discrimination by showing: "(1) she is a member of a protected class; (2) she is qualified for her position; (3) she suffered an adverse employment action; and (4) the circumstances give rise to an inference of discrimination." Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000).
Because of the minimal showing necessary to meet the preliminary prima facie standard, an increasing number of courts in this Circuit presume that a prima facie case has been presented in discrimination cases. See Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001) ("The burden on the plaintiff of presenting a prima facie case under McDonnell Douglas is `minimal.'"); see also Lanahan, 15 F. Supp.2d at 384 ("[T]he only purpose served by the prima facie case is to force the defendant to articulate a non-discriminatory reason for the termination, and . . . since it is the rare case in which a defendant will not have proffered such a reason, it is simpler and more straightforward to [assume that the defendant has established a prima facie case]."); Lapsley v. Columbia Univ. College of Physicians Surgeons, 999 F. Supp. 506, 514-15 (S.D.N.Y. 1998) ("An increasing number of courts at least presume that a prima facie case has been established."). Furthermore, as the district court in Gorley observed, the Supreme Court's Reeves decision eliminates any potential distinction between the evidence that a plaintiff proffers to satisfy its prima facie burden of showing "circumstances giving rise to an inference of discrimination," and evidence a plaintiff proffers to satisfy its burden of showing that an employer's articulated reason for the challenged employment action is a pretext for discrimination. Gorley v. Metro North Commuter R.R., No. 99 Civ 3240, 2000 WL 1876909, at *6 (S.D.N.Y. Dec. 22, 2000) (construing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)). Accordingly, this Court will analyze Plaintiffs' ADEA claim under the assumption that they have established a prima facie case of age discrimination, despite TCU's argument to the contrary.
Under the McDonnell Douglas method, once a court assumes the existence of a prima facie case, the court must then consider whether the defendant has met its burden of production by articulating a legitimate, nondiscriminatory basis for the challenged employment action. See McDonnell Douglas, 411 U.S. at 802-05. TCU has met this burden by articulating a legitimate reason for imposing the medical benefits fee on retirees — cost-control concerns. The record reflects that TCU implemented the contribution requirement in response to a drastic increase in its monthly insurance premium, an added expense that threatened the union s precarious financial condition. In this same vein, the evidence suggests that an increased utilization of plan benefits by retirees contributed to the rising insurance rates. The fact that TCU did not impose the surcharge on its Canadian retirees, since these retirees received fewer benefits under the Medical Plan, further supports TCU's financial-based explanation. Employment actions based upon economic considerations do not violate the ADEA. See Criley v. Delta Air Lines, Inc., 119 F.3d 102, 105 (2d Cir. 1997) ("Under Hazen Paper, an employer's concern about the economic consequences of employment decisions does not constitute age discrimination under the ADEA, even though there may be a correlation with age." (internal citations omitted)). Given that this burden "is one of production, not persuasion," meaning that an employer need not prove that the articulated reason actually motivated its behavior, TCU has more than satisfied its obligation. See Reeves, 530 U.S. at 141 ("[The burden of providing a legitimate, nondiscriminatory reason] is one of production, not persuasion; it can involve no. credibility assessment." (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993))). Therefore, the Court concludes that TCU has met its burden of production by stating and producing evidence to support an obvious nondiscriminatory basis for its conduct.
Once the employer makes a sufficient showing to support a nondiscriminatory reason, "the McDonnell Douglas presumptions disappear from the case, and the governing standard is simply whether the evidence, taken as a whole, is sufficient to support a reasonable inference that prohibited discrimination occurred." James v. New York Racing Ass'n, 233 F.3d 149, 156 (2d Cir. 2000). In other words, a plaintiff must show that the evidence in the case, evaluated in its entirety, supports a reasonable inference of discrimination on the basis of age. See id. (construing Reeves, 530 U.S. 133). Accordingly, if the employer provides a nondiscriminatory reason for its actions and the plaintiff cannot "point to evidence that reasonably supports a finding of prohibited discrimination," the employer is entitled to summary judgment.Id. at 154 (citing Fisher v. Vassar College, 114 F.3d 1332 (2d Cir. 1997)).
Plaintiffs attempt to create a material issue of fact with respect to the truth of TCU's cost-control explanation. To discredit TCU's nondiscriminatory reason, Plaintiffs cite statements by TCU officials boasting about improvements in the union's financial outlook. But these statements do not detract from TCU's explanation since they were made in 1995 — well over a year after the decision to impose the monthly fee on retirees. TCU instituted numerous cost-cutting measures in the early 1990's to repair its troubled financial condition, so the fact that these initiatives began to pay off hardly suggests anything suspicious. To be sure, an employer need not prove that the organization faced financial ruin in order to justify an employment decision based on cost considerations. See Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144, 152 (5th Cir. 1995) ("[T]he ADEA does not require that an employer prove that it is in fact losing money before it can take a nondiscriminatory and legitimate course of action to make more.").
Plaintiffs also claim that TCU's proffered explanation regarding an increased utilization in plan benefits by retirees is not worthy of credence. Plaintiffs', however, offer no evidence, other than conclusory statements, like "it does not cost TCU anything to provide health coverage for retirees," to refute TCU's explanation for its employment action. In this Court's view, such self-serving remarks, without more, do not cast doubt on TCU's stated reason. See Fujitsu v. Federal Express Corp., 247 F.3d 423, 428 (2d Cir. 2001) ("While all factual ambiguities must be resolved in favor of the nonmoving party, the nonmoving party may not rely on conclusory allegations or unsubstantiated speculation [to avoid summary judgment]." (internal quotation marks omitted)). Therefore, Plaintiffs have failed to set forth sufficient evidence to undermine TCU's financial-based explanation.
Plaintiffs further contend that they have raised a material issue of fact with regard to the discrimination issue because, in this case, retirement status is perfectly correlated with age. To this end, Plaintiffs argue that their claim involves the "special case" alluded to (though not considered) in Hazen Paper, namely: "where an employee is about to vest in pension benefits as a result of his age, rather than years of service, . . . and the employer fires the employee in order to prevent vesting." Hazen Paper, 507 U.S. at 613. Under the TCU retirement system, retirement status is a direct function of age because to qualify for retirement the employee must be within the protected age group. Unlike the situation in Hazen Paper, here retirement status was directly linked to age, whereas in Hazen Paper pension status was just empirically correlated with age.
Nevertheless, this Court rejects the notion that such evidence, in and of itself, can support a reasonable inference of "age proxy" discrimination under Hazen Paper. See Dilla v. West, 4 F. Supp.2d 1130, 1142-43 (M.D. Ala. 1998) ("[T]his court concludes that the mere fact that there exists a perfect correlation, or even a direct link, between age and the factor purportedly relied upon by the employer does not perforce mean that the employer has impermissibly relied on age."); Geiger v. ATT Corp., 962 F. Supp. 637, 643 (E.D. Pa. 1997) ("[T]he fact that [plaintiff] could not be a retiree unless he was also in the protected class does not compel the conclusion that retirement status is a proxy for age."). The Supreme Court's analysis in Hazen Paper indicates that ADEA liability depends upon whether stigmatizing stereotypes about age influenced the employer's actions. See Hazen Paper, 507 U.S. at 612 ("The prohibited stereotype ("Older employees are likely to be __") would not have figured in [to a decision based on years of service], and the attendant stigma would not ensue. The decision would not have been the result of an inaccurate and denigrating generalization about age. . . ."). Accordingly, Plaintiffs here must come forward with evidence that suggests that age-discriminatory animus motivated TCU's decision to impose the medical benefits fee solely on retirees. See Bramble v. American Postal Workers Union, 135 F.3d 21, 26 (1st Cir. 1998) ("Hazen Paper explains that where an employment decision is premised upon an age-correlated but analytically distinct factor, a violation of the ADEA has occurred only if there is additional evidence that the employer was motivated by an age-discriminatory animus.").
To withstand summary judgment on proxy discrimination then, Plaintiffs must create an issue of fact as to whether TCU used the perfect correlation between its retirees' retirement status and their ages as a shield for discriminatory animus. See Geiger, 962 F. Supp. at 643-44;Heath v. Massey-Ferouson Parts Co., 869 F. Supp. 1379, 1394 (E.D. Wis. 1994) rev'd on other grounds sub nom. Heath Varity Corp., 71 F.3d 256 (7th Cir. 1995). Plaintiffs fail to present any such evidence. In fact, Plaintiffs have offered neither evidence of pretext nor proof that TCU's actual motivation was age-bias.
Notably, the Equal Employment Opportunity Commission ("EEOC") advises that an employer may make decisions regarding the provision of medical benefits on the basis of employment status. According to EEOC guidelines: "An employer is not required to offer health benefits to retirees; in addition, such benefits, if offered, need not be as generous as the health benefits provided to current employees." EEOC Compliance Manual, Employee Benefits at 20 n. 25. The EEOC's determination echoes the sentiment expressed in Erie County Retirees Ass'n v. County of Erie, 220 F.3d 193 (3d Cir. 2000), when the court, though not deciding the issue, stated: "We obviously do not decide whether an employer acts lawfully in treating retirees differently than active employees with respect to the provision of benefits[,] . . . [w]e do note, however, that it would seem difficult to contend that such a distinction would be based on any `individual's age,' as it would be predicated instead on the individual's employment status." Id. at 216 n. 14 (internal citations omitted). Furthermore, the EEOC rejected Plaintiff Devlin's administrative complaint on the grounds that the retirees did not have a claim under the ADEA in light of Hazen Paper. The EEOC's determination, though not controlling, is instructive.
The Court finds that no reasonable jury could conclude on this record that TCU engaged in age discrimination by using the direct link between retirement status and age to disguise discriminatory animus. Accordingly, the Court grants summary judgment in favor of TCU with respect to Plaintiffs' ADEA claim.
B. State Law Age Discrimination Claims
Plaintiffs also claim that TCU violated the NYSHRL, the NYCHRL, and the NJLAD when it imposed a monthly medical benefits fee on only retirees. Because age discrimination claims under the ADEA, the NYSHRL, the NYCHRL, and the NJLAD, insofar as is relevant here, are governed by the same standards, the Court grants summary judgment as to Plaintiffs' state law age discrimination claims as well. See Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) ("Although there are differences between the [NYSHRL], the [NYCHRL] and the [ADEA], age discrimination suits brought under the [NYSHRL] and [NYCHRL] are subject to the same analysis as claims brought under the ADEA."); Lawrence v. National Westminster Bank New Jersey, 98 F.3d 61, 65 (3d Cir. 1996) ("Age discrimination claims under the ADEA and [NJLAD] are governed by the same standards and allocation of burdens of proof.").
C. Disparate Impact Discrimination Claim Under the ADEA
Plaintiffs also allege that TCU's medical benefits contribution requirement has a "disparate impact" on retirees in violation of the ADEA. To bring a disparate impact claim, a plaintiff must allege a disparate impact on the entire protected age class, namely, workers aged 40 and over. See Criley, 119 F.3d at 105. In this case, the record reflects that 85% of TCU plan participants who were not required to make the $100 monthly payment were over age 40 and, therefore, the medical benefits fee had no adverse impact on the overall group of TCU plan participants aged 40 and older. See id. Plaintiffs thus fail to state a disparate impact claim. Accordingly, the Court grants summary judgment in favor of TCU with respect to Plaintiffs' claim of disparate impact discrimination under the ADEA.
To the extent that Plaintiffs allege state age discrimination claims based on a disparate impact theory, the Court grants summary judgment as to these claims as well.
III. Retaliation Claims
A. Retaliation in Violation of the ADEA
Plaintiffs also contend that TCU violated the ADEA by retaliating against them for alleging discrimination on account of age in the Devlin I action.
The familiar McDonnell Douglas burden shifting analysis applies to retaliation claims as well as to discrimination claims brought under the ADEA. See Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87, 94 (2d Cir. 2001). In order to establish a prima facie case of retaliation, an ADEA plaintiff must show: "(1) participation in a protected activity known to the defendant; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action." Ouinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998). The ADEA's anti-retaliation provision provides that a person has engaged in "protected conduct" when he opposes discrimination on account of age. See 29 U.S.C. § 629 (d). With respect to the first element of the retaliation test, Plaintiffs here clearly meet this requirement because by bringing an age discrimination charge in Devlin I, they engaged in a protected activity.
As to the second element, Plaintiffs contend that they endured three adverse employment actions, (1) the elimination of the DBF, (2) the elimination of a COLA with respect to retirement benefits, and (3) the requirement that retirees submit dues annually instead of monthly. To satisfy the adverse employment action prong, an employee needs to show "a materially adverse change in the terms and conditions of employment."Torres v. Pisano, 116 F.3d 625, 640 (2d Cir. 1997) (quoting McKenney v. New York City Off-Track Betting Corp., 903 F. Supp. 619, 623 (S.D.N.Y. 1995)). Indeed, "not every unpleasant matter short of [discharge or demotion] creates a cause of action" for retaliation. Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997) (quoting Welsh v. Derwinski, 14 F.3d 85, 86 (1st Cir. 1994)).
Plaintiffs' first retaliation theory is based on the union's decision to eliminate the DBF. Even assuming arguendo that the elimination of the DBF constitutes an adverse employment action, this Court finds that Plaintiffs fail to show the requisite causal link between the termination of the DBF and the filing of Devlin I, the last element in a prima facie case of retaliation. In regards to the DBF, the Second Circuit already has concluded that "[e]very member, officer, or retiree of the TCU will be denied the $300 now that the Death Benefit Fund has been eliminated."Devlin II, 175 F.3d at 127. Because the termination of the DBF impacted all union employees, not just TCU retirees, Plaintiffs cannot show that after complaining about discrimination, only they, and not all the other similarly situated employees who did not complain, were subjected to an adverse employment action. Under this theory, therefore, Plaintiffs cannot meet their prima facie burden of showing that TCU engaged in the contested conduct in retaliation for Plaintiffs asserting their legal rights.
Plaintiffs' second retaliation theory is premised on the union's decision to eliminate a COLA with respect to the provision of retirement benefits. Again, assuming arguendo that such conduct constitutes an adverse employment action, the Court, nevertheless, finds that Plaintiffs fail to prove a prima facie case of retaliation because they cannot show a causal link between the elimination of the COLA and the lodging of age discrimination charges in Devlin I. This is so because the decision to eliminate the COLA predated the filing of Devlin I by, at the very least, almost a month. Specifically, Plaintiffs filed the Devlin I complaint on February 2, 1995. But by this time, TCU already had filed a suit on January 9, 1995 in the District of Maryland seeking a declaratory judgment regarding TCU's decision to elimination the COLA. Moreover, in their complaint in Devlin II, Plaintiffs allege that TCU began "activities to eliminate COLAs from the Retirement Plan" as early as April 1993. Devlin II Compl. ¶ 48. Accordingly, Plaintiffs cannot make out a prima facie case of retaliation under their second theory since TCU obviously made the COLA decision before Plaintiffs commenced the Devlin I lawsuit.
Regarding Plaintiffs' final retaliation theory, the threshold question is whether TCU's decision to charge retirees union dues on an annual rather than a monthly basis constitutes an adverse employment action under the ADEA's anti-retaliation provision. The Court finds that it does not. A plaintiff cannot establish the requisite adverse employment action where, as here, the unfavorable employment action only amounts to a mere inconvenience. See Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000). Consequently, Plaintiffs fail to state a prima facie case of retaliation under this third theory because they cannot demonstrate an adverse employment action on the part of TCU.
Because the Court holds that Plaintiffs have failed to establish aprima facie case of retaliation, TCU's motion for summary judgment on Plaintiffs' retaliation claim under the ADEA is granted.
B. State Law Retaliation Claims
Plaintiffs also contend that TCU violated the New York State and New York City Human Rights Laws by retaliating against them for engaging in protected activity. Because retaliation claims under the ADEA, the NYSHRL, and the NYCHRL are governed by the same standards, the Court grants summary judgment as to Plaintiffs' state law retaliation claims as well. See Duffy v. Drake Beam Morin, Harcourt General, Inc., No. 96 Civ. 5605, 1998 WL 252063, at *6 n. 7 (S.D.N.Y. May 19, 1998).
IV. Common Law Conversion
Plaintiffs allege that TCU committed conversion by eliminating the DBF and by transferring the $4.6 million balance into the union's General Fund to cover basic union expenses. TCU moves for summary judgment on this count, arguing that Plaintiffs cannot sustain their claim with respect to the funds at issue because they cannot establish an immediate superior right of possession, an essential element to a conversion claim.
To maintain a claim for conversion, Plaintiffs must demonstrate that they had legal ownership or a superior right of possession to specific identifiable property, and that TCU exercised unauthorized dominion over the property to the exclusion of Plaintiffs' rights. See Chang v. Gordon, No. 96 Civ. 0152, 1997 WL 563288, at *9 (S.D.N.Y. Sept. 8, 1997). Where, as here, the property consists of money, "it must be specifically identifiable and be subject to an obligation to be returned or to be otherwise treated in a particular manner." Deleonardis v. Credit Agricole Indosuez, No. 00 Civ. 0138, 2000 WL 1718543, at *5 (S.D.N.Y. Nov. 15, 2000) (quoting Republic of Haiti v. Duvalier, 626 N.Y.S.2d 472, 475 (1St Dep't 1995)).
Plaintiffs argue that TCU committed conversion because they acted in a manner inconsistent with Plaintiffs' rights in the DBF. This argument, however, ignores this Court's determination that TCU properly terminated the DBF in accordance with the unions s constitution. See Devlin II, 1997 WL 634179, at *12. Furthermore, in that prior decision, this Court also found that the DBF monies came from an internal allocation of TCU assets derived, in part, from union dues, and that no union member ever had to contribute personal funds to finance the DBF. See id. Once a member pays union dues, this money becomes union property. See In re Professional Air Traffic Controllers Org., 724 F.2d 205, 209 (D.C. Cir. 1984) ("Union dues are the union's property; they . . . belong, upon payment, to the union, not severally to the individual dues payers."); see also Murray v. Laborers Union Local No. 324, 55 F.3d 1445, 1455 (9th Cir. 1995) ("The Union did not have mere lawful possession of [the member's] dues, it also had lawful title to them. [The member] had no ownership rights in his prepaid dues with which the Union could interfere."). As such, Plaintiffs lacked a possessory interest in the funds in question, a critical flaw in their conversion claim.
Trying to overcome this shortcoming, Plaintiffs argue that TCU held the DBF assets in trust for its members, thereby providing the necessary property interest. See Pls.' Opp. Br. at 25. Plaintiffs, however, fail to provide a factual basis for this allegation. To the contrary, the record reflects that TCU always regarded the DBF as "a small gift, a remembrance for departed members." Devlin II, 1997 WL 634179, at *11. Moreover, the TCU constitution specifically stated that the DBF assets should not "be construed in any way as a lien or claim against the Union." Parcelli Decl., Ex. 12. Because the DBF consisted of union assets and because the members had no ownership or possessory rights in these funds, Plaintiffs cannot allege that TCU took specific and identifiable property belonging to them, and therefore, they fail to state a claim for conversion.
In an attempt to salvage their conversion action, Plaintiffs citeLopresti v. Terwilliger, 126 F.3d 34 (2d Cir. 1997), calling it directly applicable to the instant litigation. See Pls.' Opp. Br. at 24. But Plaintiffs' reliance on this case is misplaced. Lopresti involved a conversion claim predicated on a corporate officer's use of withheld union dues to cover corporate expenses, not, as in this case, a union's use of union funds to pay union expenses. See id. at 42 (conversion claim stated where a corporate officer used union dues to pay company creditors, instead of forwarding the funds to the union). Lopresti is therefore inapposite to the case at hand.
Accordingly, the Court grants summary judgment in favor of TCU as to Plaintiffs' conversion claim because they cannot show the necessary ownership or possessory right in the funds at issue.
Conclusion
For the reasons set forth above, the Court grants TCU's motion for summary judgment in its entirety. The Court orders this consolidated case closed and directs the Clerk of Court to remove it from the Court's active docket.
SO ORDERED.