Second Circuit Court of Appeals explains why ADEA, Title VII, Equal Protection, LMRA and ERISA claims against the City had to be dismissedVandermark v City of N.Y., 09-4746-cv (2nd Cir. 9-7-2010) [Summary Order*] Marshall Vandermark was the lead plaintiff when a number of Environmental Police Officers (EPOs) employed by the City of New York sued the City alleging hat the City had violated various state and federal laws with respect to their compensation and fringe benefits. The district court dismissed the federal claims for failure to state a cause of action and declined to exercise supplemental jurisdiction over Vandermark's State Law claims. Vandermark had filed the lawsuit claiming violations of the Fair Labor Standards Act (FLSA), the Age Discrimination in Employment Act (ADEA), the Labor Management Relations Act (LMRA), the Employee Retirement Income Security Act (ERISA), and Title VII of the Civil Rights Act as well as alleged violations of 42 U.S.C. §§ 1983 and 1985 [equal protection]. The Circuit Court affirmed the district court's dismissal of Vandermark's ADEA, Title VII, Equal Protection, and LMRA and ERISA claims. The court explained that: 1. To establish their Title VII claim, a plaintiff would need to show employment discrimination on the basis of "race, color, religion, sex, or national origin" [see 42 U.S.C. § 2000e-2(a)(1)] but Vandermark alleged no such nexus. 2. To establish their ADEA claim, a plaintiff would need to show employment discrimination on the basis of age [see 29 U.S.C. § 623(a)(1)]. However, Vandermark complained of "unequal retirement benefits." Such allegations do not encompass allegations of age discrimination said the court. 3. To establish §§ 1983 and 1985 equal protection claims, a plaintiff would need to show that there is no "reasonably conceivable state of facts that could provide a rational basis for the classification." The Circuit Court agreed with the district court's observation that "[t]here are numerous reasonable bases on which the City of New York might decide that NYPD officers and EPOs should receive different compensation and benefits, including the danger associated with the positions, the physical strain of the job, and the cost of living in the areas in which NYPD officers and EPOs work." In addition, the court noted that neither the LMRA nor ERISA applies to political subdivisions of a State [see 29 U.S.C. § 152(2) (LMRA) and 29 U.S.C. §§ 1002(32), 1003(b) (ERISA)] and said that "It is clear to us . . . that the New York City Department of Health and Mental Hygiene is a `political subdivision' of New York that is exempt under [the statutes relied upon by Vandermark] …." As to Vandermark's FLSA claim, the Circuit Court said that the district court "correctly applied the §207(k) exemption, [see 29 U.S.C. § 207(k)] as it was undisputed that EPOs  are "empowered . . .to enforce laws . . ., and to prevent and detect crimes";  "ha[ve] the power to arrest"; and  "undergo on-the-job training and/or a course of instruction and study which typically includes physical training, self-defense, firearm proficiency, criminal and civil law principles, investigative and law enforcement techniques, community relations, medical aid and ethics," citing 29 C.F.R. § 553.211(a). Finding no merit in Vandermark remaining arguments, the Circuit Court affirmed the district court's decision and dismissed his appeal. * N.B. – Rulings by summary order do not have precedential effect. The decision is posted on the Internet at: http://www.ca2.uscourts.gov/decisions/isysquery/4fc3c6a5-efbc-477d-b73e-8f0379076b75/27/doc/09-4746_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/4fc3c6a5-efbc-477d-b73e-8f0379076b75/27/hilite/ .
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