12-1061-cv
Young v. County of Nassau
                            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.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 4th day of February, two thousand thirteen.

PRESENT: PIERRE N. LEVAL,
         REENA RAGGI,
                    Circuit Judges.
         KENNETH M. KARAS,
                    District Judge.*

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ROBERT YOUNG, STEVEN SCHEIN, MICHAEL
O’LEARY, RICHARD FOGELSON, GARY FERRUCCI,
JOHN BIRBIGLIA, on behalf of themselves and all others
similarly situated,
                                 Plaintiffs-Appellants,
                                                                         No. 12-1061-cv
FRED BAURIES, JAMES W. BONISLAWSKI, RONALD
E. BURK, GREGORY J. CELENTANO, ROBERT
COLASONNO, WILLIAM COMPETIELLO, JOHN
CONNOR, JAMES T. CRUICKSHANK, ARTHUR J.
D'ALESSANDRO, JON S. DANIEL, FRED EAVARONE,
JAMES FUCITO, JOEL R. FUOCO, JEANNE A. GANS,
ROBERT H. HILLMAN, ALBERT J. JASKOT,
LIEUTENANT, JOHN B. LAVELLE, STEPHEN H.
MACAULEY, LOUIS V. MACCIO, JOHN P.


          *
       Judge Kenneth M. Karas, of the United States District Court for the Southern District
of New York, sitting by designation.
MARSCHHAUSER, WAYNE R. MATHISON, NORMAN
MCCLOY, ROBERT JOHN MCDONALD, ALLEN P.
MCGOVERN, DONALD F. MESSE, ROBERT L. NASH,
SERGIO NICOLICH, KENNETH E. OLSEN, RICHARD
F. PITA, WILLIAM F. SCHARP, STEPHEN J. SCHMIDT,
ANDREW G. SETHER, DENNIS F. SHARP, SCOTT A.
WANLASS, RICHARD ZITO, LAWRENCE FEFFER,
WILLIAM GRAY, KATHLEEN LONGO, JEFFREY
SCHILLING, EDWARD HARSCH, RICHARD BROCK,
PETER HEMSLEY, STEVEN HOLMES, DONALD
BITTNER, LEWIS CUNNINGHAM, WALTER
ANDERSON, VINCENT QUIGLEY, THOMAS STORZ,
MARY ANN HERNON, JOHN DALTON, MICHAEL
FLEMING, THOMAS MCLAUGHLIN, CHEROXIE
KING, WILLIAM LAMURA, JOHN FALLON, JOHN
KING, GREGORY DETWILLER, ANDREW SAWULA,
JOHN FREUND, ALL PLAINTIFFS, EDWARD GOLLER,
LAUREL TOBIAS, JOSEPH MARINO, THOMAS
REILLY, WAYNE LAWRENCE, THOMAS HAYES,
ELIZABETH NUGENT, DANIEL MILLER, ANTHONY
BONKOWSKI, THOMAS KETELTAS, RONALD
RISPOLI, LORETTA BRENNAN, DANIEL URBAN,
                       Plaintiffs,

                        v.

COUNTY OF NASSAU, PATROLMEN’S BENEVOLENT
ASSOCIATION, SUPERIOR OFFICERS’ ASSOCIATION,
DETECTIVES’ ASSOCIATION, INC.,
                    Defendants-Appellees,

NASSAU COUNTY POLICE DEPARTMENT, TOM
SUOZZI, individually and in his Official Capacity, DAN
MCCRARY, individually and in his Official Capacity,
                                 Defendants.
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APPEARING FOR APPELLANTS:                  ROBERT J. VALLI, JR., Valli Kane & Vagnani,
                                           LLP, Garden City, New York.

APPEARING FOR APPELLEES:                   SHARON N. BERLIN (Matthew John Mehnert,
                                           on the brief), Lamb & Barnosky, LLP, Melville,
                                           New York, for Appellee County of Nassau.

                                           SETH H. GREENBERG, Greenberg Burzichelli
                                           Greenberg, P.C., Lake Success, New York, for
                                           Appellees Patrolmen’s Benevolent Association,
                                           Superior Officers’ Association, Detective’s
                                           Association, Inc.

       Appeal from a judgment of the United States District Court for the Eastern District

of New York (Denis R. Hurley, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on February 16, 2012, is AFFIRMED.

       Plaintiffs, current and former employees of the Nassau County Police Department

(“Police Department”), appeal from the denial of their motions (1) to reconsider the dismissal

of their class action complaint charging that a termination pay policy imposed in arbitration

results in unlawful age discrimination, see 29 U.S.C. § 621, et seq.; N.Y. Exec. Law. § 291

et seq.;1 and (2) for leave to file a second amended complaint (“proposed complaint”) as



       1
         As alleged in the complaint, the newly imposed policy limited reimbursement for
“banked” administrative days at two years’ salary for all patrolmen, sergeants, and detectives
retiring after July 1, 2009. Such “banked” days are comprised of unused and accumulated
vacation, sick, personal, and annually awarded bonus days, along with uncompensated
overtime and working holidays. As do the parties, we refer to reimbursement for banked
days as “termination pay,” and we refer to the cap on reimbursement as the “termination pay
cap” or simply the “cap.”

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futile. We review the challenged denial of reconsideration for abuse of discretion, see Harris

v. Kuhlmann, 

, 348 (2d Cir. 2003), mindful that the appeal of that denial brings

up for our review the underlying dismissal order, see “R” Best Produce, Inc. v. DiSapio, 

, 121 (2d Cir. 2008). We review de novo the denial of leave to amend on futility

grounds where, as here, the denial is based on a legal interpretation. See Gorman v. Consol.

Edison Corp., 

, 592 (2d Cir. 2007). We assume the parties’ familiarity with the

facts and record of prior proceedings, which we reference only as necessary to explain our

decision to affirm for substantially the reasons stated in the district court’s well-reasoned

opinions.

1.     Reconsideration

       Plaintiffs submit that the district court was obliged to reconsider its original judgment

of dismissal because, in reaching that decision, it overlooked four critical facts: (1) a

statement by Nassau County Labor Relations Director Dan McCray to the press

acknowledging that the termination pay cap was intended to prod older, better-paid workers

to retire, allowing the Police Department to hire younger, lower-paid workers; (2) statements

by certain plaintiffs that they would have continued working but for the challenged pay cap,

and that the pay cap violated the Age Discrimination in Employment Act (“ADEA”);

(3) losses of $41,000 to $100,000 in earned benefits by workers who did not retire; and

(4) evidence that the prospect of comparable benefit losses prompted other workers’

retirement. See Shrader v. CSX Transp., Inc., 

, 257 (2d Cir. 1995) (stating that


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reconsideration may be warranted where “moving party can point to . . . data that the court

overlooked”). In fact, as the district court persuasively set forth in its memorandum denying

reconsideration, it overlooked none of these facts. Rather, it concluded that despite them,

plaintiffs’ claims failed because they could not show that the challenged policy put them at

a disadvantage relative to younger workers.

       To be sure, older workers had to make a difficult choice between retiring before the

policy took effect, thus avoiding the termination pay cap, or continuing to work and facing

the reduction in termination pay that the cap imposed. Younger workers, however, were not

afforded even that choice. They were necessarily subject to the cap. Thus, because

plaintiffs have failed to demonstrate that the district court overlooked facts “that might

reasonably be expected to alter [its] conclusion,” id. at 257, they cannot claim abuse of

discretion in the denial of reconsideration. We need not further discuss the district court’s

rationale for dismissing the complaint because we hold that the complaint, even as amended,

fails to state a claim for relief.

2.     Proposed Complaint

       Plaintiffs submit that the district court erred in ruling that it would be futile to allow

them to file their proposed second amended complaint, which sought to explain that the

challenged policy discriminated against older workers relative to their younger counterparts

because only employees over 40 could have accrued enough days to be adversely affected,

whereas younger workers allegedly “are not and mathematically cannot be harmed by the


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new policy should they choose to retire.” Compl. ¶ 43, J.A. 997 (emphasis added); see 29

U.S.C. § 631(a) (limiting ADEA protection “to individuals who are at least 40 years of age”).

The flaw in this argument, as the district court recognized, is that the pleading nonetheless

failed plausibly to allege discrimination between older and younger workers. The latter were

plainly subject to the policy and would never have the option of recovering more than the

capped amount of termination pay. By contrast, older workers who had accrued more than

the capped amount were afforded a limited window within which to collect that full amount

by opting to retire, an opportunity not available to their younger counterparts. See generally

General Dynamics Land Sys., Inc. v. Cline, 

, 600 (2004) (holding that ADEA

“does not mean to stop an employer from favoring an older employee over a younger one”);

Abrahamson v. Bd. of Educ., 

, 72 (2d Cir. 2004) (identifying potential age

discrimination where older workers are deprived of benefit while younger workers, unlike

here, “still have the future option of receiving the benefit”); Henn v. Nat’l Geographic Soc.,

, 826 (7th Cir. 1987) (“Provided the employee may decline the offer and keep

working under lawful conditions, the offer makes him better off. He has an additional

option, one that may be (as it was here) worth a good deal of money.”).

       Plaintiffs may wish they had yet another option: one that allowed them to keep

working and to retain accrued termination benefits in excess of the cap. But they cannot

plausibly claim that defendants’ failure to afford them that option constitutes age

discrimination when no such opportunity was afforded to younger employees.


                                              6
       Conceding that this is one way to construe the facts, plaintiffs offer the competing

interpretation that older workers in fact were disadvantaged by the cap, in that only

employees over age 40 were affected by it—and, indeed, were forced to retire to avoid being

penalized by it—whereas younger employees can arrange their affairs to avoid exceeding its

limit in the future. Plaintiffs thus argue that the district court impermissibly chose between

competing plausible scenarios, a task properly reserved to the factfinder. See Anderson

News, L.L.C. v. Am. Media, Inc., 

, 184–85 (2d Cir. 2012) (“The choice between

two plausible inferences that may be drawn from factual allegations is not a choice to be

made by the court on a Rule 12(b)(6) motion.”). We are not persuaded. Where, as here, the

pertinent facts are undisputed, we may answer the “purely legal” question of whether given

conduct “violate[s] the ADEA.” Johnson v. New York, 

, 79 (2d Cir. 1995). We

hold that the arbitration-imposed pay caps do not, for the reasons already discussed.

       To the extent plaintiffs claim that the pay caps create a disparate impact based on the

fact that prior notice will give younger workers better opportunity to use their leave time,

whereas older employees may have accumulated leave which, because of lack of notice, they

are unable to use, the policy is nonetheless lawful under the ADEA because it is “based on

reasonable factors other than age,” 29 U.S.C. § 623(f)(1), namely the need to save money and

the willingness of affected employees to keep working past the policy’s effective date, see

Smith v. City of Jackson, 

, 241 (2005) (holding that pay plan that is less

generous to older workers than to younger workers was “based on reasonable factors other


                                              7
than age” where based on seniority and rank, as well as need to bring officers’ salaries in line

with those of surrounding communities).

       Accordingly, leave to file the proposed complaint was properly denied.

3.     Remaining Arguments

       Because we affirm the judgment against plaintiffs on the merits, we need not reach

defendants’ other arguments for affirmance, including that the Police Department cannot be

held responsible for an arbitration award implemented in accordance with New York State

law and that leave to amend should have been denied for reasons of undue delay.

       The judgment of the district court is AFFIRMED.

                                    FOR THE COURT:
                                    Catherine O’Hagan Wolfe, Clerk of Court




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