Plaintiff Paul Zarembka, individually and as a representative on behalf of all academic and all professional employees with “continuing” or “permanent” State of New York employee contracts (all of whom who will be referred to hereinafter as “tenured” or with “tenure”) who are forty (40) years of age or older, brought this action as an individual and as a representative of a protected class (hereinafter “plaintiff”) pursuant to [1] 29 U.S.C. §§ 621, 623(a)(1), et seq., the Age Discrimination in Employment Act (hereinafter “ADEA”), as amended, [2] 42 U.S.C. Section 1983, et seq. [for violations of the United States Constitution (hereinafter “U.S. Constitution”)], and [3] under New York Human Rights Law [for violations of the age discrimination provisions of New York Executive Law §296, et seq.] -- see Docket #1, 2, 51.  Plaintiff filed a Second Amended Class-Action Complaint on April 30, 2001 and the defendants were subsequently served.  Thereafter, the several defendants made motions to dismiss plaintiff’s Second Amended Complaint.

This memorandum of law is submitted by plaintiff in opposition to the pending motion to dismiss plaintiff’s Second Amended Complaint made by the defendants State of New York, Governor George E. Pataki, State University of New York, Linda Angello, Michael P. Rowan, Allen C. DeMarco and Walter J. Pellegrini (collectively referred to hereinafter as “state defendants”). This memorandum of law is also submitted by plaintiff in opposition to the pending motion to dismiss plaintiff’s Second Amended Complaint made by the defendants United University Professions, Inc. and William E. Scheuerman (collectively referred to hereinafter as “union defendants”).  This memorandum of law is being submitted in opposition to these motions, along with an affidavit by named plaintiff Paul Zarembka. This memorandum of law will first address the state defendants’ motion to dismiss and will then address the union defendants’ motion to dismiss. 

 

STATEMENT OF FACTS

At all times pertinent to this proceeding, the named plaintiff, Paul Zarembka was/is employed by the State of New York with tenure in the State University of New York (“SUNY”). Mr. Zarembka’s tenured employment is subject to the provisions of the collective bargaining agreement (“CBA”), including specifically Article 30.2 “Appointment Evaluation and Promotion” and its reference to Article XI of the Policies of the SUNY Board of Trustees for his individual contract  between the UUP and State of New York for 1974 to years 1999-2003.

Article 36 of the 1995-2003 CBA’s contains “Contracting-Out” provisions that have a disparate negative impact on plaintiff Zarembka and countless other tenured SUNY employees that violates the ADEA, EPA, NYS Constitution, New York’s Human Rights Law and 42 U.S.C. § 1983.  These “Contracting-Out” provisions have already caused plaintiff and the others like him injury and if implemented, threaten to cause even further, greater injury. 

 

ARGUMENT

APPLICABLE TO ALL DEFENDANTS

WHEN DECIDING A MOTION TO DISMISS, THE COURT
MUST VIEW THE ALLEGATIONS IN FAVOR OF THE
NON-MOVING PARTY. 

When deciding a motion to dismiss, the standard of review is in favor of the non-moving plaintiff.  All of the allegations in plaintiff’s complaint and all inferences must be taken in plaintiff’s favor.  See, Weinstein v. Albright, 2001 WL 897435 (2d Cir. 2001).  “Dismissal is appropriate only if ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim[s] which would entitle him to relief.’" Id., quoting Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir.2000).       

 

ARGUMENT IN OPPOSITION TO MOTION BY STATE DEFENDANTS

POINT I

FEDERAL COURT HAS SUBJECT MATTER JURISDICTION OVER
CLAIMS BASED ON THE STATE VIOLATION OF THE ADEA
BECAUSE THE STATE OF NEW YORK, AND UUP
CONSENTED TO A WAIVER OF ELEVENTH AMENDMENT
IMMUNITY.

In the state defendants’ Memorandum of Law, under Point I, the State cites Kimel v. Florida Board of Regents and McGinty v. State of New York as authority for its argument that per the Eleventh Amendment it has immunity from prosecution under the ADEA.  See, Kimel v. Florida Board of Regents, 528 U.S. 62 (2000);  McGinty v. State of New York, No. 00-7189 (2001).  While these cases do stand for the idea that a State may be immune from prosecution under the Eleventh Amendment, this immunity may be voluntarily waived by a State and it was so waived here by the State of New York. 

The State of New York voluntarily waived its Eleventh Amendment immunity for claims of age-discrimination in its collective bargaining agreement (CBA) with the United University Professionals (UUP).  The test for voluntary waiver of a State’s Eleventh Amendment immunity is described in the Supreme Court holding Pennhurst State School Hospital v. Halderman.  Pennhurst State School Hospital v. Halderman, 465 U.S. 89 at 117 (1984).  “A sovereign’s immunity may be waived and the court has consistently held that a State may consent to suit against it in federal court”.  See also, Edelman v. Jordan, 415 U.S. 651 (1974).  Although a state is immune from prosecution in federal court, it may waive that immunity and thus render itself amenable to federal jurisdiction; the waiver may be express or implied.  See, Burlington Northern, Inc. v. State of N. D., 460 F.Supp. 140 (D.C.N.D., 1978). 

In the instant matter New York State has unequivocally expressed its consent to waive its immunity under the Eleventh Amendment.  Articles 10.1 and 10.2 of the CBA between the state of New York and the UUP explicitly bars “all forms of illegal discrimination, including but not limited to discrimination with regard to . . . age”, either by the State or UUP.  The collective bargaining agreement referred to here is attached to the Affidavit of the attorney for the union defendants Anthony Brock as Exhibit “B”.  Article 10.4 of the CBA specifically excludes the use of CBA established grievance procedures for addressing claims of discrimination providing instead that such claims shall “be subject to review in accordance with State and Federal procedures established for such purpose”.  This State waiver dates back to April 14, 1974 (See, Affidavit by 1974 Chief Negotiator Leland C. Marsh). The State has therefore explicitly consented to a waiver of its Eleventh Amendment immunity by requiring that all discrimination claims are made subject to review in accordance with “State and Federal procedures” rather than the CBA grievance procedure.   Were the state defendants unwilling to be subject to the provisions of the courts, it should not have agreed to the contractual provisions discussed above. 

The state defendants, also in Point I of their Memorandum of Law, cite Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995) in support of the proposition that the individual state defendants listed in this action are not proper defendants in an ADEA action.  However, Tomka does not address injunctive relief against future action.

The Supreme Court has addressed injunctive relief relevant to this Complaint.  In Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 (1984), the Court reaffirmed its earlier ruling in Edelman v. Jordan, 415 U.S. 651 (1974), in which the Court held that when a plaintiff sues a state official alleging a violation of federal law, the federal court  may award an injunction that governs the official's future conduct.  Pennhurst, 465 U.S. at 117. 

In other words, this court may award an injunction that governs the official's future conduct.  Furthermore, this court may award an injunction that governs the official's future conduct, even if the State had not voluntarily waived its 11th amendment immunity, as voluntary waiver is not a factor in Pennhurst.  Furthermore, the Supreme Court has very recently reaffirmed injunctive relief for federal ADA claims in University of Alabama v. Garrett, 121 U.S. 955 (2001):

Our holding here that Congress did not validly abrogate the States sovereign immunity from suit by private individuals for money damages under Title I does not mean that persons with disabilities have no federal recourse against discrimination. Title I of the ADA still prescribes standards applicable to the States. Those standards can be enforced by the United States in actions for money damages, as well as by private individuals in actions for injunctive relief under Ex parte Young, 209 U.S. 123 (1908).

Id.

It is very clear that the plaintiff’s claims against the state defendants, including the individual defendants, are not lacking in subject matter jurisdiction and are not barred by the Eleventh Amendment. 

POINT II

SUITS AGAINST THE STATE OF NEW YORK AND THE
STATE UNIVERSITY BASED ON 42 U.S.C. § 1983 ARE
NOT BARRED BY THE ELEVENTH AMENDMENT.

In the state defendants’ Memorandum of Law, under Point II, it is argued that this Court lacks subject matter jurisdiction over the § 1983 claims against the State of New York or SUNY by virtue of the Eleventh Amendment.  The state defendants cite Quern v. Jordan, 440 U.S. 332 (1979) in support of this proposition.  Quern is not applicable to plaintiff’s § 1983 claim for the same reasons that Kimel and McGinty do not bar plaintiff’s ADEA claim - Eleventh Amendment immunity may be voluntarily waived by the State and it was so here.  As discussed fully in Point I, the State signed union CBAs from 1974 to 1999 which excluded unlawful discrimination claims from the grievance process and also agreed that these claims should be brought via federal or state court.  That is what is being done here by plaintiff and all discrimination claims are not barred.  Moreover, as also discussed fully in Point I, the case law cited by the State has no bearing on plaintiff’s request for injunctive relief.  This is not barred by the Eleventh Amendment and plaintiff has jurisdiction for the §1983 claim. 

POINT III

THE COURT DOES NOT LACK JURISDICTION OVER
THE STATE LAW CLAIMS IN PLAINTIFF’S SECOND
AMENDED COMPLAINT

The state defendants claim in Point III of their argument that this Court lacks jurisdiction over plaintiff’s state law claims due to Eleventh Amendment Immunity.  The state defendants cite Pennhurst State School & Hospital, supra, for this proposition.  However, once again, it must be pointed out that the state clearly waived its immunity and consented to these type of actions when it signed the collective bargaining agreement subjecting itself to “review in accordance with State and Federal procedures established for such purpose” and barring discrimination claims from being pursued via the grievance process.  This argument is fully set forth in Point I as well as Point II of this memorandum of law and defendants’ arguments fail for the reasons cited herein. 

POINT IV

PLAINTIFF’S § 1983 CLAIMS AGAINST THE INDIVIDUAL
STATE DEFENDANTS ARE PROPER.

Point IV of the state defendant’s memorandum of law argues that the § 1983 claims against the individual defendants should fail for a lack of personal involvement on behalf of the defendants.  42 U.S.C. § 1983 requires that a defendant have some personal involvement in the violation upon which a valid claim may be based.  The state defendants individually named were directly involved in the negotiations for the 1995-1999 and 1999-2003 collective bargaining agreements which included for the first time the Article 36 “Contracting Out” provisions.  Each official satisfied the direct involvement requirement.  Linda Angello was Director of the Governor’s Office of Employment Relations for the State of New York and signed the agreement and its appendices.  Michael P. Rowan was the Assistant Director and Chief Negotiator for the Statalign=centere of New York and was a signatory to the agreement.  Allen C. DeMarco was the Deputy Director of the Governor’s Office of Employee Relations and was a signatory to the agreement.  Walter Pellegrini was General Counsel and was a signatory to the agreement.  One need only examine the agreement, attached to the Anthony Brock Affidavit as Exhibit “B” to see the involvement of these individual defendants in this process.  It is this very collective bargaining agreement and its “Contracting Out” provision that plaintiff claims to have violated § 1983. 

The state defendants also argue that any claim against Governor Pataki based merely on the doctrine of respondent superior must be dismissed as well.  Plaintiff’s claim against Pataki is not based on respondent superior, plaintiff alleges direct involvement on behalf of the Governor.  Moreover, upon information and belief, Governor Pataki met in his office with UUP President Scheuerman and a representative of the New York State United Teachers at least once in the Spring of 1997 specifically about the unresolved contract negotiations for the 1995‑1999 contract and specifically about the contested Article 36.  Such involvement satisfies the requirement of direct and personal involvement by the Governor. 

The state defendants cite Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973) in support of the argument that Pataki is not a proper defendant.  Yet, Johnson notes that “the rule in this circuit is that when monetary damages are sought under § 1983, the general doctrine of respondent superior does not suffice and a showing of some personal responsibility of the defendant is required.”  Plaintiff does indeed claim personal responsibility by Governor Pataki and since the second amended complaint and the allegations therein must be considered in the light most favorable to plaintiff on a motion to dismiss, the argument by the state defendants fails. 

POINT V

THE ARTICLE 36 “CONTRACTING OUT” PROVISIONS
NEED NOT BE IMPLEMENTED TO CONSTITUTE A
JUSTICIABLE CONTROVERSY

Point V of the state defendants’ memorandum of law argues that the complaint should be dismissed because the Article 36 “Contracting Out” provisions have never been implemented against the plaintiff or against any member of the class of employees the plaintiff seeks to represent.  This is not the case.  The plaintiff has identified actual injuries that he and the other like employees have already suffered.  This is apparent in paragraph “38" of the Second Amended Complaint where it is alleged:

Article 36 allows for the termination, redeployment, forced resignations or relocation of tenured employees and, as previously asserted, 90 to 95% of those with tenure are 40 years of age or older. The CBA uses the expression "affected" to describe these persons. Article 36 also violates 42 U.S.C. §1983 as definable and tangible job security provisions have been taken from those with tenure without due process -- thus violating their equal protection rights.

Plaintiff clearly identifies injuries that have already happened here and throughout the Second Amended Complaint.  See also, paragraph “59" of Second Amended Complaint.  In addition, the plaintiff clearly documented numerous other specific injuries in the initial Complaint (dated January 6, 1999 and entered January 14, 1999) and in the First Amended Complaint (dated May 6, 1999 and entered May 7, 1999).

Furthermore, a plaintiff does not need to "await the consummation of threatened injury to obtain preventative relief”.  Valmonte v. Bane, 18 F.3d 992 at 999 (2d Cir. 1994) citing Pennsylvania v. West Virginia, 262 U.S. 553 at 593, 43 S.Ct. 658 at 664 (1923).  A plaintiff need not wait until "consummation" of threatened injury in order to sustain suit.   Berger v. Heckler, 771 F.2d 1556 at 1563 (2d Cir.1985).  A plaintiff’s claim becomes ripe if the perceived threat due to the putatively illegal conduct of the appellees is sufficiently real and immediate to constitute an existing controversy.  See, Blum v. Yaretsky, 457 U.S. 991, 1000, 102 S.Ct. 2777, 2783, 73 L.Ed.2d 534 (1982). 

The state defendants also state that any process due the plaintiff or others affected by the “Contracting Out” provision is afforded by the collective bargaining agreement itself.  Plaintiff could not agree more if the State means Article 10.  Article 10.4 specifically states employees must utilize “state and federal procedures established for such purpose.”  That is exactly what plaintiff is doing.  Also, the courts have consistently held that tenure is a property right and the courts have consistently held that a public employee threatened with dismissal is entitled to due process protections when he/she has acquired a liberty or property interest in employment; that is, a legitimate entitlement to continued employment (Economico v. Village of Pelham, 50 NY2d 120, 428 NYS2d 213; Elrod v. Burns, 427 US 347, 96 S. Ct. 2673, 49 L. ed2d 547; Board of Regents v. Roth, 408 US 564, 92 S. Ct. 2701, 33 L. ed2d 548). 

Accordingly, the plaintiff need not wait until the Article 36 “Contracting Out” provisions are implemented, in order to sustain a suit against the defendants.  Very real injuries have already occurred, e.g., loss of tangible job security and property right (tenure), and if the “Contracting Out” provision is implemented, the threat of which is immediate and real, then significant harsher injuries are also going to be incurred by plaintiff.  This action is ripe and plaintiff has standing.

 

ARGUMENT IN OPPOSITION TO UNION DEFENDANTS

POINT I

THIS COURT HAS JURISDICTION OVER PLAINTIFF'S
ADEA AND HUMAN RIGHTS LAW CAUSES OF ACTION.

In a similar fashion as the state defendants, the union defendants have argued that plaintiff lacks standing because this case is not “ripe” or lacks a justiciable controversy.  This is simply not true.  Plaintiff fully addressed this issue in Point V of this memorandum of law in relation to the state defendants’ argument which also fully applies in response to the same argument by the union defendants.  In short, there can be no question that a “real, substantial controversy between [the] parties” exists.  Marchi v. Boces, 173 F.3d 469 (2d Cir. 1999).  The controversy has been set forth in all plaintiff’s complaints and reiterated here throughout.  Defendants have deprived plaintiff of real, tangible job security provisions and private property (tenure) and violated thousands of individual contracts under the policies, the CBA, the ADEA, EPA, etc., § 1983 and New York’s Human Rights Law while doing so.  There has been actual injury already and greater, harsher injury is imminent if the defendants are not prohibited and refrained from this conduct.  It is not speculative; it is quite real and plaintiff has standing for this action. 

POINT II

POINT II OF THE UNION DEFENDANTS'
MOTION TO DISMISS IS MOOT

The union defendants argue in Point II of their memorandum of law that “Zarembka should not be certified as a Class Representative.”  This claim is moot until such filing for class determination takes place.  Pursuant to Judge Curtain’s August 22, 2001 Order, plaintiff has until sixty (60) days after issue is joined to file his motion for class certification.  There is no purpose to be served by requiring the plaintiff to answer such objection before the plaintiff’s motion for class certification is even filed.

POINT III

PLAINTIFF PROPERLY COMPLIED WITH THE EEOC PROCESS

The union defendants allege that this Court lacks jurisdiction because the United University Professions, Inc. was not named in the right-to-sue letter which was issued to plaintiff by the EEOC.  (Also, the state defendants argued in Point I of their memorandum of law, almost as an afterthought, that the individual state defendants were not named in plaintiff’s charge with the EEOC and that this equals a lack of jurisdiction by this Court over the individual state defendants).  Plaintiff will first address the union defendants and then the argument regarding the individual state defendants.

Plaintiff initially filed with the EEOC and the NYSDHR on March 28, 1998.  Plaintiff wrote Elizabeth Cadle, Regional Director, EEOC, on June 27, 1998 (certified mail) requesting that EEOC process " 'all charges' against the State of New York" and asking that EEOC "serve the verified complaint to the respondents (State of New York, Albany, New York, and UUP, 159 Wolf Road, Albany, New York 12205)" and copying William P. Marks, NYSDHR (certified mail). 

On July 2, 1998, Mr. Marks sent a letter to the plaintiff acknowledging the "verified complaint” and listing the Defendants as "The State of New York and the United University Professions as aider and abettor". 

Plaintiff wrote to the EEOC on September 12, 1998 stating that Mr. Marks' letter of August 28 conflicted with the work-sharing agreement between EEOC and the State and stating once again that the proper respondents are the State and UUP.  EEOC replied on September 15, 1998 reaffirming that NYSDHR is handling the complaint.  On September 17, 1998, the plaintiff amended its complaint with EEOC to include interference and harassment by the State of New York.  Plaintiff responded to EEOC's September 15, 1998, letter, on September 18, 1998, noting Cadle's errors and the amendment to the complaint.  EEOC replied to the plaintiff on September 23, 1998, stating once again that the complaint "will be investigated by the New York State Division of Human Rights", to which plaintiff replied the next day reaffirming their letter of September 18.  On September 26, 1998, plaintiff noted to EEOC that more than 180 days have elapsed since filing on March 28, 1998 and requested of EEOC a "right‑to‑sue" letter, which was indeed issued on October 9, 1998 (with a typographical error, "cc: Respondent(s): S.U.N.Y., State University Plaza, Albany, N.Y. 14248").  

Plaintiff is and was aware that the employer is the State of New York and that the union with whom the State negotiated the contested CBA Article 36 "Contracting Out" is the United University Professions.  Plaintiff received a “right-to-sue” notice in accord with Federal procedures.  The Commission enclosed a two (2) page “Information Sheet” entitled “Facts About Filing an Employment Discrimination Suit In Federal Court In New York State” and plaintiff referenced this information in the Amended Complaint filed 05/06/99 and entered 05/07/99 (Docket #2) in Item No. 37 (page 9) under Exhibit “F”.  In this information sheet, the EEOC specifically notified plaintiff that the document received (Right to Sue Letter) “is the final determination or other final action of the Commission” and is “effective upon receipt” and the EEOC Right to Sue Letter “ends our handling of your charge” and “you must decide whether you want to file a private lawsuit in court”.  Plaintiff decided.  He filed the EEOC Right to Sue Letter in Federal Court and this matter is now under the jurisdiction of the U.S. District Court.

 In cases where the EEOC has erroneously caused harm to a charging party’s claim, the courts have consistently ruled so as to prevent the party from being penalized for the Commission's mistakes.   See, Harris v. City of New York, 186 F.3d 243, 248 n .3 (2d Cir.1999) ("Harris alleges ... that an EEOC supervisor advised him that due to an EEOC error all of his claims would be deemed retroactive to the earliest filing. Generally courts do not penalize litigants for EEOC's mistakes and misinformation."); Jackson v. Richards Medical Co., 961 F.2d 575, 587 n. 11Jackson v. Richards Medical Co., 961 F.2d 575 at 587. See also, Bethelmie v. New York City Health and Hospitals Corp., 2001 WL 863424 *2 (S.D.N.Y. 2001).

It is glaringly apparent that the named plaintiff, acting without an attorney at the time and relying upon the EEOC and Division of Human Rights, did everything possible to ensure that the proper respondents were named and had a chance to participate including notifying the EEOC and Division on several occasions of their errors.  As such, these claims cannot be dismissed for this reason.  The UUP has known of plaintiff’s allegations since at least when plaintiff wrote (certified) UUP President William Scheuerman on December 5, 1998, and when plaintiff filed the original pro se Complaint in the Western District.  UUP and its President William E. Scheuerman have not identified any prejudice that they would suffer if this action were to proceed. 

With regard to the state defendants’ argument regarding the individual state defendants and the fact that these individual state defendants were not named in plaintiff’s EEOC charge, the state defendants have even less an argument than the union defendants.  No prejudice has been alleged by the state defendants which would warrant this Court to stop this proceeding.  Furthermore, plaintiff’s argument regarding UUP and the union defendants applies here.  Plaintiff informed the EEOC and Division on numerous occasions that the proper respondents were the State of New York and the UUP.  There cannot be any question that if the State were properly named, there would be an “identity of interests” between the State and the individual state defendants.  See, Schaefer v. Erie County Dep’t of Social Services, 82 F.Supp.2d 114, 116 (W.D.N.Y. 2000).  Plaintiff did everything possible to ensure that the EEOC and Division named the correct parties.  As stated above, plaintiff should not be penalized.

POINT IV

PLAINTIFF’S CLAIMS UNDER § 1983
AGAINST THE UNION DEFENDANTS ARE PROPER.

The union defendants argue that plaintiff has failed to state a cause of action against the union defendants under § 1983.  See, Point IV above in response to State.

POINT V

PLAINTIFF’S PENDENT STATE CAUSE OF ACTION
SHOULD REMAIN AGAINST THE UNION
DEFENDANTS.

Plaintiff has amply demonstrated above the viability of his ADEA and EPA cause of action against the union defendants and why it should not be dismissed.  Plaintiff has amply refuted all arguments regarding the ADEA cause of action and as such, the pendent New York State Human Rights Law cause of action should remain as a result.