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"The State has the right to contract out for goods and/or services...."
-- Article 36, State/UUP Agreement since 9/30/97.
SUNY Professionals Class Action, c/o Paul Zarembka
151 Fordham Drive, Buffalo, NY 14216
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The "contracting out" provisions of Article 36 negotiated between UUP and the State of New York allow the State a weapon to radically restructure SUNY and/or a specific campus. By attempting to rewrite the individual contracts received by those awarded tenure, long-established employment rights are threatened. The vast majority affected are aged 40+ and Article 36 is age discriminatory. To counter loss of employment rights, a federal class-action lawsuit against the State of New York and UUP was filed on behalf of all tenured SUNY professionals aged 40+.
The W.N.Y. Federal District Court Judge ruled in January 2002 that the case is not yet "ripe", and so dismissed it "without prejudice" (in so many words: 'come back later'). The lower ruling was appealed to the Court of Appeals, Second Circuit, in N.Y.C. This appeal was being undertaken for Plaintiff by attorneys from both ends of New York state:
Anna Marie Richmond, Attorney in Buffalo, concentrates her practice on employment discrimination and other civil rights cases in the federal courts. For seven years, she worked as a staff attorney with the federal court for the Western District of New York. She has numerous appeals to the Second Circuit.
Bob Rosen, Partner in Rosen, Leff on Long Island ( www.rosenleff.com ), specializes in employment discrimination, education law and tenure rights. He was recently elected Vice-President of the National Employment Lawyers Association/NY, received its 'Courageous Plaintiff Attorney' award in 2000, and, among other federal cases, represented plaintiffs when both public employer and union were defendants under federal anti-age discrimination laws.
NEWS: The Brief for Plaintiff-Appellant, filed May 22, 2002 argued that "the challenged CBA provision (Article 36) eliminates the long-standing protection held by tenured professionals and places the tenured professors' and professionals' future at SUNY in jeopardy and uncertainty."
The State and UUP in their court Briefs cited lower court ruling. Neither claimed that individually awarded tenure has been preserved with the inclusion of Article 36, Contracting Out. The union furthermore claimed that "a collective bargaining agent can waive constitutional and statutory rights of an individual member when collectively negotiating...." (July 3, 2002)
Replying to those Briefs, Plaintiff attorneys referred to rights under New York Education Law 6212 and said that by "its very existence, Article 36 dispossesses Plaintiff of his right to procedural due process under the Education Law; there need not be any further action by the State to disenfranchise Plaintiff and his fellow class members of their 'legitimate claim of entitlement' to their tenure." The Reply also addressed the union's "bizarre and disingenuous argument that Plaintiff does not actually have the lifetime appointment guaranteed" under State Law. (July 16, 2002)
Oral argument took place in the Court of Appeals, Second Circuit, on October 24, 2002. The Court asked Plaintiff attorneys for an additional Brief on the applicability of State Education Law 6212. However, the Court ruled on November 1 before receiving the Brief on November 4, 2002.
Court of Appeals, Second Circuit, ruled on November 1, 2002, affirming District Court. Letter from Plaintiff Attorney Anna Marie Richmond details reasons why she sees the result as "the best possible outcome ... short of an all-out victory".
--Click here for Salient Portions, or for the Full Text,
of the AMENDED LAWSUIT, filed April 30, 2001.
[Click on "Critical Commentary on the 1995-99 State/UUP Contract" for background information, or click on EEOC for background of filing.]
News Bulletin: DISTRICT COURT RULING:
Judge Curtin has rendered a Decision on January 18, 2002, on the class action protesting the State and Union's "agreement", on September 30, 1997 to "contract-out" tenured professional employees in the State University of New York.
Based on the State and Union claims that no SUNY tenured professional employees 40 years of age or older have actually been "contracted-out" under Article 36 in the four past years, Judge Curtin decided that the class claims are not "ripe" and therefore the Federal Court does not have subject matter jurisdiction at this time and must dismiss the Complaint "without prejudice".
In granting the State and Union motion(s) to dismiss, Judge Curtin also ordered that, if Article 36 is implemented, plaintiff "will be able to file an action at that time. Dismissing it now does not foreclose that possibility, and does not prejudice".
Receiving this court decision, class counsel (Andrew P. Fleming) stated: "I am not disappointed by it. We have kept the issue alive."
News Bulletin: ATTORNEY FILES TO PROTECT 'TENURED' PROFESSIONALS ("Class")
Following an earlier court ruling, Chiacchia & Fleming, LLP, has filed an amended class-action complaint in federal court under the federal Age Discrimination in Employment Act and the New York State Human Rights Act. The "class" exceeds 10,000 employees.
The purpose of the complaint is to stop the STATE OF NEW YORK from contracting-out terminations, redeployments, forced resignations or relocations of State University of New York (SUNY) professional employees with 'tenure' contracts and to remedy inequities for tenured employees who are 40+ years of age.
News Bulletin: FIRST COURT RULING: FOR Plaintiffs Amending/AGAINST Dismissal
In a Class-Action case to protect tenure in one of the largest U.S. universities (State University of New York), Federal Court Judge John T. Curtin on September 20, 2000 RULED:
1. IN FAVOR OF Plaintiffs' motion to amend the Class-Action filed by two State University professors "pro se" on behalf of all (20,0000+) professional employees in the State University of New York (SUNY);
2. AGAINST the Defendants' (STATE OF NEW YORK, et al) request for a dismissal of this class action;
3. PERMITTED Plaintiffs to continue the action as a class action by filing, with attorney representation, on or before October 31, 2000 second amended complaint for the class (i.e., 20,000+ State University professional employees).
Pending before the court are defendants' motions to dismiss the complaint. All parties agree that the claims herein arise from a single provision, Article 36 of the collective bargaining agreement ("CBA"), between the State of New York ("NYS") and United University Professions ("UUP"). The UUP is the union which represents plaintiffs. Plaintiffs allege they are academic employees of defendants with continuing appointments, i.e. tenure. The defendants are divided into two groups: the "governmental defendants" and the "non-governmental defendants."
As originally pled, the complaint alleged claims arising under Article 36 of the CBA then in effect. Item 1. On May 7, 1999, plaintiffs amended their complaint as of right. Item 2. After the date plaintiffs filed the amended complaint, a new CBA was agreed to between UUP and NYS. That CBA became effective July 1, 1999. Plaintiffs thereafter moved to file a second amended complaint to include claims arising under Article 36 of the new CBA. Item 20. Plaintiffs' motion set the return date as Noovember 1, 1999 at 2 p.m.
Defendants' motions to dismiss were pending when plaintiffs filed their motion to amend. The non-governmental defendants' notice of motion to dismiss stated a return date of November 1, 1999, at 3 p.m. Item 15. The governmental defendants' motion to dismiss was made returnable at a "date and time to be determined by the court." Item 14. Only plaintiffs and an attorney for the governmental defendants appeared on November 1. No attorney appeared on behalf of the non-governmental defendants, notwithstanding the fact their own motion made November 1 the return date. By minute entry dated November 1, 1999, plaintiffs' motion to amend was granted.
Plaintiffs have yet to file a second amended complaint. Upon reviewing the status of this action, it is evident to the court that a significant issue related to amending the complaint requires immediate attention. Although the court has granted plaintiffs' motion to file a second amended complaint, plaintiffs are hereby advised that as non-attorney, pro se litigants, they may not serve as representatives of the purported plaintiff class. It is well settled in this circuit that non-lawyer, pro se litigants cannot serve as class-representatives. 100,000 Victim Families Note Holders, etc. v. Schulte Roth & Zabel, ____ F. Supp. ____, 2000 WL1100184 (S.D.N.Y. 2000); Walker v. Commissioner Glenn Goord, et. al, ____ F. Supp ____, 2000 WL 297249 (S.D.N.Y. 2000). The theory underlying this prohibition is that pro se litigants cannot, ab initio, satisfy the requirement that a class representative will "fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23 (a)(4). For this reason, plaintiffs may not rest on the original complaint nor the first amended complaint filed herein. The order on plaintiffs' motion to amend must be read as compelling plaintiffs to serve and file a second amended complaint.
If plaintiffs choose to file the second amended complaint as a class action, they must be represented by an attorney. Plaintiffs may not simply aver that they consulted with counsel. An attorney of record must actually appear on their behalf. Alternatively, plaintiffs may, individually or jointly, file a second amended complaint, pro se, asserting their individual claims. Whether plaintiffs choose to file a second amended class action complaint through counsel of record, or individual complaints pro se, they are hereby ordered to file same on or before October 31, 2000. Failure by plaintiffs to file on or before October 31 will be treated as consent by plaintiffs to dismissal of this action against all defendants, with prejudice.
If a second amended complaint is filed, defendants may have 30 days thereafter to file an answer, or a motion to dismiss in lieu of an answer.
Because plaintiffs have not yet filed their second amended complaint, both motions to dismiss the complaint (Items 14 and 15) are dismissed. These motions may be renewed after a second amended complaint is filed.
So ordered.
JOHN T. CURTIN
United States District Judge
Dated: September 19, 2000