RULING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [DOC. # 20]
Plaintiff Charles Stevens, Jr., a bus driver, has brought thisaction against his former employer, Coach USA, and affiliatedentities, under the Family and Medical Leave Act,29 U.S.C. § 2601 et seq. ("FMLA"). He alleges that the company retaliatedagainst him for taking a period of medical leave in May 2002.Defendants now move for summary judgment, see [Doc. # 20], andfor the reasons that follow, their motion will be denied.
I. FACTUAL BACKGROUND
Stevens has worked as a bus driver since 1987, and he was hiredas a charter bus driver by Arrow Line, a Coach USA subsidiary, in2000. Stevens Dep., Pl. L.R. 56(a)2 Stmt. [Doc. # 29], Ex. 2, at12, 14. After working for Arrow for approximately two years,Stevens was earning $11.25 per hour. Id. at 118. He was amember of the Amalgamated Transit Union Local 1348, whosecollective bargaining agreement set the terms and conditions of his employment. See Agreement, Def. L.R. 56(a)1 Stmt. [Doc. #21], Ex. C.
In May 2002, Stevens requested approximately a one month leaveof absence to recover from fatigue related to chronic HepatitisC.1 Stevens Dep. at 19-20. Stevens was under the care ofWoong B. Lee, M.D., an internist in Norwich, Connecticut. On June6, 2002, Dr. Lee wrote a note certifying that Stevens was able toreturn to work; the note did not specify why Stevens had beenabsent or what treatment he had undergone.2 That sameday, Stevens brought Dr. Lee's note to Arrow Lines and presentedit to Philip Andrews, the company's director of safety. Andrewstestified that he informed Stevens that the company headquarterswould require more detailed documentation about Stevens' medicalcondition, see Andrews Dep., Def. L.R. 56(a) 1 Stmt., Ex. D, at15-16, but Stevens testified that all Andrews said to him was,"welcome back." Stevens Dep. at 27. Andrews asked Stevens to fillout a "Return to Duty Questionnaire." See Def. L.R. 56(a)1Stmt., Ex. I. The Questionnaire instructed, "Questions/Answers should onlypertain to employee's most recent illness/injury." Id., Ex. I.Plaintiff circled "yes" on the two following questions: "Do youhave or are you being treated for any mental, nervous disease orpsychiatric disorder?" and "Are you taking any medication?(Prescription or over-the-counter)." Id. Plaintiff circled "no"to the question, "Do you have or are you being treated for anycondition that would preclude safe operation of a [commercialmotor vehicle] or cause sudden incapacitation?" Id.
Plaintiff testified that he answered "yes" to the firstquestion regarding psychiatric conditions because he hadundergone marital counseling with his wife in Spring 2002.Stevens Dep. at 32-34. He further testified that Arrow was awareof this marriage counseling because Stevens had had to requesttime off to attend. Id. at 35-36. Stevens stated that when hewas filling out the Return to Duty form, "where I had circled No.8 [the question regarding psychiatric disorders] I told Phil[Andrews], I said, `You know, the only reason I'm checking thisis because . . . you know I went to marriage counseling.' And henodded, he knew that. That's the only reason that [answer] wasthere." Id. at 30. Thus Stevens believed that Coach knew thathis marital counseling was the reason for his affirmative answerto the question.
Plaintiff testified that he circled "yes" regarding medications because he was taking Procardia for a heartcondition. Stevens testified that Arrow had known about thismedication from the time he underwent his pre-employment physicalexamination, id. at 50, and Arrow's personnel file shows thatplaintiff's Procardia prescription was noted on hisre-certification physical on January 23, 2002, connected with aself-reported diagnosis of high blood pressure. Pl. L.R. 56(a)2Stmt., Ex. 1.
A medical firm, Liva and Nassetta, LLC, functioned as Coach'smedical director. Dr. Jeffrey Liva or his partner made all finaldecisions regarding Coach employees' medical qualifications underDepartment of Transportation Regulations. See Pl. Responses toDef. Req. for Admission, Def. L.R. 56(a)1 Stmt., Ex. E, at 1.Plaintiff's Return to Duty Questionnaire was forwarded to Dr.Liva's office, and Dr. Liva refused to certify Stevens as fit toreturn to work without further information. Id. at 2. Dr. Livatestified that he was concerned about plaintiff's answers to boththe question about psychiatric disorders and the question aboutmedications: What we needed was information on — first of all, we needed his diagnosis, description of the illness or injury with respect to any mental, nervous disease or psychiatric disorder, and we needed to know what kind of medication the individual was taking to determine whether the medication would interfere with his abilities to drive a commercial motor vehicle.Liva Dep. at 17-18. Plaintiff, however, testified that nobody from Dr. Liva'soffice or from Arrow Lines ever mentioned a need fordocumentation concerning a purported mental disorder untilOctober 2002. Rather, plaintiff testified that he was only askedfor more specific documentation of his physical condition.Stevens Dep. at 47.
On June 7, 2002, Stevens provided another note from Dr. Lee,which read: Mr. Charles Stevens has been under my care for his Coronary Insufficiency which requires Procardia, and also, intermittent flare ups of Hepatitis. Mr. Stevens may return to work on June 8, 2002. If you have any questions, please do not hesitate to contact me.Def. L.R. 56(a)2 Stmt., Ex. N.
Coach informed Stevens that this note also was insufficient,and on July 17, Dr. Lee provided a third work release letter,which stated, "Mr. Charles Stevens has been under my care for hisHepatitis for which he has been followed very closely. There areno medical contraindications for his work." Id. at Ex. O. Dr.Liva testified that Dr. Lee's third note settled any uncertaintyregarding whether plaintiff's hepatitis would inhibit his abilityto work. Liva Dep. at 26.
However, Dr. Liva stated that there was still a "conflict"between Dr. Lee's second note concerning Procardia and theplaintiff's medical history, because Dr. Lee stated that the medication was prescribed to treat coronary insufficiency whileStevens had told his medical evaluator in January 2002 that hetook the medication for hypertension. Id. at 29. Plaintifftestified that he telephoned Dr. Liva to ask what furtherinformation needed to be provided. According to Stevens, Dr. Livarequested further documentation of his heart condition and hisneed for Procardia. Stevens Dep. at 51-52. In August 2003, Dr.Liva and Arrow Lines personnel informed Stevens that if he passedan exercise stress test he could be certified as fit for duty.See Def. Interrogatory Responses, 9/13/04, Pl. L.R. 56(a)2Stmt., Ex. 14, at 9. This is corroborated by Garfield Rucker,plaintiff's union representative, who by this point had becomeinvolved to advocate for plaintiff's right to return to work, andwho understood Arrow's position to be that the only stepplaintiff needed to complete in order to return to work was topass the exercise stress test. See Rucker Dep. at 30. Plaintifftook the stress test at a Rhode Island hospital on September 24,2002, and the result showed no cardiac problems preventing hisreturn to work. Def. L.R. 56(a)1 Stmt., Ex. S; Liva Dep. at 35.
Thereafter, on October 10, 2002, Dr. Liva and Coach permittedplaintiff to return to work with a 30-day temporary medicalcertificate. See Pl. L.R. 56(a)2 Stmt., Ex. 18. However, theyrequired him to sign an agreement that: . . . during [this] one (1) month period you are required to submit to Dr. Liva documentation from your doctor with respect to your psychiatric condition. You may have your doctor contact Dr. Liva for additional instructions on what information is needed. If you or your doctor fail to submit the required information to Dr. [L]iva within one (1) month, you will be removed from service until you or your doctor have provided the required information and medical determination has been made.Id. Stevens testified that this was the first he had heardabout a need for psychiatric documentation. Stevens Dep. at 143.
On October 23, 2002, Nurse Mary Ellen Bliss from Liva andNassetta sent a fax to James Lindsay, the social worker who hadseen plaintiff for marriage counseling, with a long checklist ofpsychiatric information. Def. L.R. 56(a)1 Stmt., Ex. K., Ex. T.In response, Lindsay sent a note on his letterhead stating: This will certify that Charles Stevens was seen by me at this office for six psychotherapy sessions. The focus was on marital issues. The dates of attendance were: April 18, April 25, May 2, May 9, May 23 and June 6, 2002. Yours truly, James R. Lindsay, MSW, LCSWId. at Ex. J. According to plaintiff, Lindsay did not feelcomfortable filling out the form because Bliss's instructionswere that it needed to be completed and signed "by apsychiatrist," and Lindsay is not a psychiatrist. See id. atEx. T. Dr. Liva's office considered Lindsay's note insufficient,however, and the next entry in their records indicates that theywere "still waiting for Dr's note" on October 31, 2002. Id. atEx. K. After unsuccessfully seeking psychiatric clearance fromLindsay, plaintiff returned to his internist, Dr. Lee, and askedhim if he could fill out the form for Liva and Nassetta. StevensDep. at 144. Dr. Lee said he could not because he was not apsychiatrist. Id.
In March 2003, Coach's Connecticut counsel, Peter A. Janus, setout Coach's requirements in response to a request fromplaintiff's attorney: . . . Mr. Stevens will have to provide a medical release from a psychiatrist, verifying that Mr. Stevens is fit to return to duty. . . . Due to the fact that Mr. Stevens originally indicated on his `Return to Duty Questionnaire' that he was being `treated for any mental, nervous disease or psychiatric disorder,' and also because his counselor, Mr. Lindsey [sic] verified that Stevens had attended six (6) psychotherapy sessions, Dr. Liva requires certification at this time from a psychiatrist before Stevens will be cleared to resume his driving duties.Pl. L.R. 56(a)2 Stmt., Ex. 24. Plaintiff sought out apsychiatrist, Dr. Vipin Patel, on May 1, 2003, but Dr. Patelinformed plaintiff that he could not fill out the required formwithout a long series of therapy sessions. On May 28, Stevens'sattorney requested through counsel that Dr. Liva provide the nameof a psychiatrist who could perform the evaluation in onemeeting. Id. at Ex. 25. The letter from plaintiff's counselconcluded, "Mr. Steven[s] has been cooperative to date, and Iurge you to help him now. In the absence of a reasonablesolution, Mr. Stevens will have no choice but to rely upon the legal remedies available." Id. Defendants never responded.
Plaintiff filed the complaint in this case on November 12,2003, see [Doc. # 1]; defendants Coach and KILT answered onJanuary 19, 2004, see [Doc. # 8] and Peter Pan answered onFebruary 10, 2004, see [Doc. # 11].
Summary judgment is appropriate "if the pleadings, depositions,answers to interrogatories, and admissions on file, together withaffidavits . . . show that there is no genuine issue as to anymaterial fact and that the moving party is entitled to a judgmentas a matter of law." Fed.R.Civ.P. 56(c). A party seekingsummary judgment "bears the burden of establishing that nogenuine issue of material fact exists and that the undisputedfacts establish [its] right to judgment as a matter of law."Rodriguez v. City of New York, 72 F.3d 1051, 1060-1061 (2d Cir.1995) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157(1970)). "The duty of the court is to determine whether there areissues to be tried; in making that determination, the court is todraw all factual inferences in favor of the party against whomsummary judgment is sought, viewing the factual assertions inmaterials such as affidavits, exhibits, and depositions in thelight most favorable to the party opposing the motion." Id.(citations omitted). "If reasonable minds could differ as to the import of the evidence . . . and if there is any evidence in therecord from any source from which a reasonable inference in thenonmoving party's favor may be drawn, the moving party simplycannot obtain ? summary judgment." R.B. Ventures, Ltd. v.Shane, 112 F.3d 54, 59 (2d Cir. 1997) (internal citations,alterations and quotations omitted).
A. Burden-Shifting Framework
The FMLA provides that "an eligible employee shall be entitledto a total of 12 workweeks of leave during any 12-month periodfor one or more of the following: . . . Because of a serioushealth condition that makes the employee unable to perform thefunctions of the position of such employee."29 U.S.C. § 2612(a)(1). The Act guarantees reinstatement of employment uponthe end of an employee's leave. See id. at § 2614(a). Thestatute further states that "[i]t shall be unlawful for anyemployer to interfere with, restrain, or deny the exercise of orthe attempt to exercise, any right provided under thissubchapter." Id. at § 2615(a)(1). A claim that an employee was"punished" or retaliated against for exercising his or her rightsunder the FMLA is cognizable as interference with his or her FMLArights. Potenza v. City of N.Y., 365 F.3d 165, 167 (2d Cir.2004).
Because the intent of an employer is material in FMLA interference claims, "the retaliation analysis pursuant toMcDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973)] isapplicable." Potenza, 365 F.3d at 168; Walker v. The AccessAgency, No. 3:02CV199 (AHN), 2004 WL 2216526 at *8 (D. Conn.,Aug. 31, 2004). To make out a prima facie case, a plaintiff "mustestablish that: 1) he exercised rights protected under the FMLA;2) he was qualified for his position; 3) he suffered an adverseemployment action; and 4) the adverse employment action occurredunder circumstances giving rise to an inference of retaliatoryintent." Potenza, 365 F.3d at 168. Once the plaintiff has madeout a prima facie case, the burden shifts to the defendant tostate a legitimate non-discriminatory reason for its action. Ifthe defendant provides such a reason, the burden shifts back tothe plaintiff to provide evidence from which a jury couldconclude that the defendant's articulated reason for its actionis pretextual and that the real reason for its action wasretaliation for plaintiff's exercise of rights protected underthe FMLA. See McDonnell Douglas, 411 U.S. at 802-03; Worsterv. Carlson Wagonlit Travel, 353 F. Supp. 2d 257, 270 (D. Conn.2005).
1. Prima Facie Case
Defendants do not dispute that Stevens exercised his right totake FMLA leave or that Stevens experienced an adverse employment action when Arrow Lines refused to schedule shifts forhim upon his request to return from leave.
Defendants contend that Stevens was not qualified for the jobunder the second prong of the prima facie test because he lackedthe necessary medical certification. This argument assumes theconclusion, however, as the central issue in this case is whetherdefendants retaliated against plaintiff by preventing him fromobtaining his medical recertification. As discussed below, agenuine issue of material fact exists concerning defendants'intent throughout the recertification process. "One cannotoverlook the fact that at the heart of plaintiff's case is [his]charge that the evaluation scheme was itself biased and thusshould not be used as a way to disprove [his] qualification forthe job." Hurd v. JCB Int'l Credit Card Co., 923 F. Supp. 492,501 (S.D.N.Y. 1996). Thus defendants' proffer of Stevens' lack ofmedical certification does not present undisputed facts defeatingStevens' prima facie showing.
Defendants do not dispute that Stevens had driven a bus since1987, was hired as a bus driver for Arrow Lines in 2000, and wasrecertified in 2001 and January 2002. Therefore Stevens has putforth sufficient evidence to show that he was qualified for theposition of bus driver. See Tex. Dep't of Cmty. Affairs v.Burdine, 450 U.S. 248, 250, 254 (1981) (several years'experience sufficient to meet qualification prong); Slattery v. Swiss Reins. Am. Corp., 248 F.3d 87, 92 (2d Cir. 2001)("[P]laintiff must show only that he possesses the basic skillsnecessary for performance of the job.") (internal citation,quotation marks and alteration omitted).
The fourth element of plaintiff's prima facie case, aninference of discrimination, is established by proximity betweenplaintiff's exercise of his FMLA leave and the adverse employmentaction, which immediately followed. See Clark County Sch.Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (to establishretaliation claim under Title VII, "temporal proximity must be`very close.'") (quoting O'Neal v. Ferguson Constr. Co.,237 F.3d 1248, 1253 (10th Cir. 2001)); Davis v. State Univ. ofN.Y., 802 F.2d 638, 642 (2d Cir. 1986) (protected activity mustbe "closely followed by adverse actions," and one-month periodwas sufficient).
2. Legitimate Non-Discriminatory Reason
Defendants proffer as their legitimate non-discriminatoryreason for refusing to schedule Stevens to work following hisrequest to return to duty that "Coach was merely complying withDOT regulations concerning fitness for duty certification of adriver and relying upon the determinations of Dr. Liva, itsmedical director. Without Liva's approval or certifications Coachcould not reinstate Stevens as a charter bus driver." Mem. inSupp. of Def. Mot. for Summary Judgment [Doc. # 22] at 11. 3. Pretext
Stevens argues that defendants' proffered reason is pretextualand that rather than seeking answers to legitimate medicalquestions, defendants raised a series of obstacles to his returnto work starting immediately after he tried to return from leave,by never telling him exactly what documentation was necessary forhim to be recertified, and never being satisfied with what hesubmitted, in retaliation for exercising his FMLA rights.
First, Stevens offers evidence that his Procardia medicationwas documented in his medical file at Coach at least sinceJanuary 2002, before he took medical leave. Thus, reasonableminds could infer that defendants' demand for furtherdocumentation about his cardiac condition, and requirement of anexercise stress test, was unnecessary and a pretext to keepStevens out of work.
Second, Stevens offers evidence that he was not informed untilOctober 2003, more than four months after he requestedreinstatement, that Coach and Dr. Liva required documentationregarding his "psychiatric condition." Although Dr. Livatestified that as soon as he saw Stevens' Return to WorkQuestionnaire he wanted information concerning plaintiff's "yes"answers to questions about psychiatric disorders and medication,the first reference in Dr. Liva's office notes of a need for psychiatric documentation is in October 2003. As of August 2003,both Stevens and Rucker, his union representative, believed thatthe only remaining step was for plaintiff to pass an exercisestress test to rule out any disqualifying cardiac condition.After plaintiff passed the stress test, however, rather thanputting him back to work, Coach demanded information from apsychiatrist regarding his mental condition, and then rejectedthe marriage counselor's report. When Stevens could not readilyobtain a psychiatrist to complete Coach's form without undergoinglengthy therapy, defendant refused to provide plaintiff with analternative psychiatric referral.
Moreover, by Stevens' testimony, Coach knew that Stevens hadattended marriage counseling and that that was the explanationfor his "yes" answer to Question 8, raising the inference thatCoach could have satisfied Dr. Liva's purported concerns about"psychiatric problems" early on and reduced Stevens'reinstatement ordeal.
A jury could reasonably infer from the chronology of eventsthat defendants were making excuses to prevent Stevens fromreturning to work and their real motive was to retaliate forplaintiff's FMLA-covered absence. Rucker testified that Coach"[j]ust didn't want him back, period. . . . I mean, we examinedeverything out there that's possible to rectify the [situation]:We've been going to see your doctors, we've been going to see your stress test, we've given you everything that you wanted. Andyet there is no end to this." Rucker Dep. at 42. It is unclearwhether Stevens specifically mentioned an FMLA lawsuit in June2002, but drawing inferences in plaintiff's favor at this stage,a reasonable jury could find that after plaintiff took FMLA leaveand, after Coach refused to accept his first two doctor's notes,plaintiff threatened legal action and defendants retaliatedagainst Stevens by inventing a series of documentationrequirements that effectively prevented Stevens from everreturning to work for Coach.
Defendants argue that Liva, a contract employee who was notStevens' supervisor, had no motive or incentive to retaliateagainst Stevens for taking FMLA leave. However, this argumentdoes not explain the chronology of events in this case,especially the lack of clarity concerning the information Dr.Liva required and the preexistence of information concerningStevens' Procardia prescription in Stevens' medical file.
Defendants also argue that they are permitted under the FMLAand Department of Transportation regulations to request medicaldocumentation before allowing plaintiff to drive a bus. In Cookev. C. Bean Transport, Inc., 72 Fed. Appx. 740 (10th Cir. 2003)(unpublished), cited by defendants, the plaintiff asserted thatthe defendant transport company's requirement that he "submit toan additional medical exam prior to returning to work" was itself a violation of the FMLA. Id. at 743. The Tenth Circuit heldthat "employers may, in compliance with regulations issued by theDOT, impose more stringent requirements on certification offitness." Id. at 744. Plaintiff Stevens, however, does notchallenge the requirement that he submit to a medicalexamination. Rather, his evidence supports his allegation thatCoach never actually explained to him its exact medicalrequirements for returning to duty, and it continued to add newrequirements as he satisfied Coach's previous demands.
Therefore the record shows a material dispute of fact requiringjury determination of whether Coach acted with retaliatory intentor merely in compliance with DOT regulations. Defendants' summaryjudgment motion on the grounds that they acted in good faith mustbe denied.
C. Exhaustion of Administrative Remedies
Defendants further argue that they are entitled to summaryjudgment because plaintiff has failed to exhaust hisadministrative remedies under the collective bargaining agreementand DOT regulations.3
1. Collective Bargaining Agreement The United States Supreme Court has ruled that a collectivebargaining agreement without "a clear and unmistakable waiver ofthe covered employees' right to a judicial forum for federalclaims of employment discrimination" does not waive theemployees' right to have discrimination claims adjudicated infederal court. Wright v. Universal Maritime Serv. Corp.,525 U.S. 70, 82 (1998). Interpreting Wright, the Second Circuitheld: First, a waiver is sufficiently explicit if the arbitration clause contains a provision whereby employees specifically agree to submit all federal causes of action arising out of their employment to arbitration. . . . Second, a waiver may be sufficiently clear and unmistakable when the CBA contains an explicit incorporation of the statutory anti-discrimination requirements in addition to a broad and general arbitration clause. . . . Moreover, as the Supreme Court stated in Wright, the CBA should make compliance with the named or cited statute a contractual commitment that is subject to the arbitration clause.Rogers v. N.Y. Univ., 220 F.3d 73, 76 (2d Cir. 2000) (citationsomitted).
In Wright, 525 U.S. at 80, the CBA's "arbitration clause[was] very general, providing for arbitration of `[m]atters underdispute,' which could be understood to mean matters in disputeunder the contract. And the remainder of the contract contain[ed]no explicit incorporation of statutory antidiscriminationrequirements." Thus the Supreme Court held that the arbitrationclause did not clearly and unmistakably provide for arbitrationof plaintiff's claim under the Americans with Disabilities Act. Id. at 82. In Rogers, the applicablecontract did contain a provision requiring the employer to complywith the FMLA, but that commitment was not explicitlyincorporated into the general arbitration clause and thereforearbitration of plaintiff's FMLA claim was not required because"the collective bargaining agreement does not specifically makecompliance with the FMLA a contractual commitment that issubject to the arbitration clause." 220 F.3d at 76 (emphasis inoriginal).
The collective bargaining agreement covering Stevens, like thecontract at issue in Wright, contains no mention orincorporation of federal antidiscrimination laws.4 SeeAgreement, Def. L.R. 56(a)1 Stmt., Ex. C, at 3. Compliance withthe FMLA is not a term of the contract. The section of theagreement covering grievances provides: "Grievances involving adispute or claim arising out of or relating to the interpretationor application of this agreement" shall be subject toarbitration. Id. at 4. Thus, by its terms, the contractprovides for arbitration only of grievances arising out of the contract's terms, not claims arising from federal statutesgenerally or from the FMLA in particular.
Absent a "a clear and unmistakable waiver," Wright,525 U.S. at 82, of Stevens' right to adjudicate his FMLA complaint in afederal forum, Stevens is not required to arbitrate his claimunder the collective bargaining agreement before pursuing hisfederal cause of action. Therefore defendants' motion for summaryjudgment on the grounds of failure to follow the CBA's grievanceprocedures is denied.
2. DOT Administrative Process
Defendants also seek summary judgment on the basis thatplaintiff failed to exhaust his administrative remedies throughthe Department of Transportation regulations, which prescribe anadministrative appeal procedure in cases of "disagreement betweenthe physician for the driver and the physician for the motorcarrier concerning the driver's qualifications."49 C.F.R. § 391.47(b)(2). Even assuming that this procedure must be exhaustedin an FMLA case, which is not at all clear, see29 U.S.C.A. § 2617 (no exhaustion requirements specified in individualenforcement provision of FMLA),5 the regulation isinapplicable to Stevens because the crux of Stevens' complaint isnot a disagreement between Dr. Lee and Dr. Liva. Rather, Stevens argues that instead of actually obtaining a medical opinion fromDr. Liva, Coach sent him through a series of hurdles thatprevented his medical fitness from ever being determined. Thisissue cannot be characterized as "a disagreement between thephysician for the driver and the physician for the motorcarrier." 49 CFR § 391.47(b)(2). Therefore defendants' motion forsummary judgment on this basis will be denied.
C. Peter Pan
Defendants argue Peter Pan should be dismissed as a defendantin this action because plaintiff testified in his deposition thathe had no contact with Peter Pan's management concerning his FMLAleave. Def. Mem. of Law at 20-21 (citing Stevens Dep. at 136).Defendants also state that "Peter Pan acquired the Connecticutassets of Coach, which included The Arrow Line, the formeremployer of Stevens," in 2003. Id. at 20.
Courts have held that successorship liability of a purchasingcorporation for its predecessor's employment discrimination is afact-specific inquiry. See EEOC v. Sage Realty Corp.,507 F. Supp. 599 (S.D.N.Y. 1981) (Title VII case). A "purchasingcorporation is liable if there is an express or implied agreementthat the purchaser will assume liabilities." Long v. AT & TInfo. Sys., Inc., 733 F. Supp. 188, 208 (S.D.N.Y. 1990) (citingWheeler v. Snyder Buick, 794 F.2d 1228, 1236 n. 8 (7th Cir.1986)). Additionally, "[t]he purchasing corporation may also be liable under the doctrine of successorshipliability." Id. (citing Am. Bell, Inc. v. Fed'n. of Tel.Workers of Pa., 736 F. 2d 879, 888 (3d Cir. 1984); EEOC v.MacMillan Bloedel Containers, Inc., 503 F.2d 1086, 1092 (6thCir. 1974)). Drawing from principles of labor law, the SixthCircuit has established a frequently-cited test to determinewhether a successor company is liable for its predecessor'sdiscriminatory actions toward an employee: 1) whether the successor company had notice of the charge, 2) the ability of the predecessor to provide relief, 3) whether there has been a substantial continuity of business operations, 4) whether the new employer uses the same plant, 5) whether he uses the same or substantially the same work force, 6) whether he uses the same or substantially the same supervisory personnel, 7) whether the same jobs exist under substantially the same working conditions, 8) whether he uses the same machinery, equipment and methods of production and 9) whether he produces the same product.McMillan, 503 F.2d at 1094.
The record is devoid of evidence on any of these factorsrelated to Peter Pan's acquisition of Coach USA and whether PeterPan is or is not Coach USA's successor in interest. Peter Pan hasnot shown it is entitled to judgment as a matter of law. IV. CONCLUSION
Accordingly, defendants' motion for summary judgment [Doc. #20] is DENIED. The parties' joint trial memorandum will be filedby October 7, 2005.
IT IS SO ORDERED.