PRELIMINARY STATEMENT
Plaintiff-Appellant submits this Brief in reply to the
Briefs of Defendants-Appellees, State of New York, et al. (the “State”) and
United University Professions, Inc., et al.
(the “Union”).
In short, Defendants-Appellees misunderstand and/or
misconstrue the real and immediate effect of Article 36 of the CBA on
Plaintiff’s constitutional due process rights and tenure rights under New York
Education Law §6212. 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.
With respect to the State Defendant’s argument that
they are immune from Plaintiff’s suit for damages, that is certainly not true
with respect to Plaintiff’s claim for prospective injunctive relief.
Finally, the Union Defendant may undoubtably be held
liable for unlawful age discrimination in employment under the ADEA and New
York State Executive Law.
ARGUMENT
I. SECTION 36 OF THE CBA, BY VIRTUE OF ITS VERY
EXISTENCE, CONSTITUTES A TAKING AND,
THEREFORE, A REAL AND CURRENT HARM TO PLAINTIFF AND HIS FELLOW CLASS
MEMBERS
Defendants-Appellees fail to recognize the real and
immediate effect of Article 36 on Plaintiff’s tenure rights under New York
Education Law §6212. By virtue of its
very existence, Article 36 disenfranchises Plaintiff and divests him of his
procedural due process rights under the Education Law. There need not be any further action by the
State in order to deprive Plaintiff and his fellow class members of their
statutory and constitutional protections, thereby creating a real and
justiciable controversy for this Court.
Specifically, New York Education Law §6212 provides
that “Tenure” shall mean the right of a person to hold his position during good
behavior and efficient and competent service, and not to be removed therefrom
except for cause in the manner hereinafter provided. §6212(1)(c). Such removal
may only occur where a tenured employee is proved to have engaged in:
a. incompetent or inefficient service;
b. neglect of duty;
c. physical or mental incapacity;
d. conduct unbecoming a member of the staff. This
provision shall not be so interpreted as to constitute interference with
academic freedom.
Proceedings for the removal of such a person shall be
conducted in accordance with the by-laws of the board of trustees, and shall be
initiated by service by the board of trustees upon the person involved of a
notice setting forth all the charges pending against him. Such a person so
charged shall be entitled to a hearing with right of representation by any
person or persons of his choice before any committee which the board of
trustees may appoint to investigate such charges, or, in the event that such a
committee is not appointed, before the board of trustees. In cases in which
such a committee is appointed, such a person shall further be entitled to an
appeal on the record with right of representation by any person or persons of
his choice before the board of trustees prior to its final determination of the
question of his removal. No such person shall be removed except at a
regular or special meeting of the board of trustees, by an affirmative vote of
the majority of all the members of the board of trustees. For the purposes of
any such proceeding, the board by its chairman or the chairman of any such
committee shall have power to subpoena witnesses, papers and records, and to
administer oaths.
§6212(9)(emphasis added). The Education Law mandates that strict
procedural due process be applied to any interference with a tenured employee’s
property right to his or her employment.
Section 36 obliterates this due process and property right.
As explained in
Plaintiff-Appellant’s initial brief, neither Article 36 nor Appendix A-27 provides that redeployed
employees will carry their tenure with them to their new positions and,
therefore, academic employees no longer have their property right of lifetime
tenure.
In Board of Regents of State Colleges v. Roth,
408 U.S. 564, 576-77 (1973), the Supreme Court reaffirmed that a public college
professor dismissed from an office held under tenure provisions, and college
professors and staff members dismissed during the terms of
their contracts, have interests in continued employment that are safeguarded by
due process.
Thus, the Court made it clear that due process is
required when depriving an individual of his property right, including a public
employee’s earned tenure.
Here, it cannot be denied that Article 36 and Appendix
A-27 completely eviscerate the due process guaranteed to tenured faculty and
non-teaching professionals by the New York Education Law and under Roth. The language of Article 36 and Appendix A-27
of the CBA are crystal clear in their effect of eliminating
Plaintiff-Appellant’s right to his tenured position “during good behavior and
efficient and competent service.”
Unlike the case in Auerbach v. The Board of
Education of the Harborfields Central School Dist., 136 F.3d 104 (2d Cir.
1998), where the Court held that the plaintiffs’ claim would only mature upon
their decision to retire, and only if the contractual language at issue
remained unchanged at that remote date, here, the fiscal loss to
Plaintiff-Appellant will inevitably occur if the State unilaterally invokes
Article 36. In other words, in Auerbach,
the plaintiffs’ claim was contingent upon their decision to retire, and the
factual event forming the basis of the claim (their retirement), had not
occurred at the commencement of the action.
Here, Article 36 has already conferred upon the State
the unilateral right to contract out Plaintiff-Appellant’s position at
any time. Upon the execution of the CBA
that contained Article 36, Plaintiff-Appellant’s “legitimate claim of
entitlement” to his teaching position at SUNY evaporated. See, Roth, 408 U.S. at 577.
The Union makes the bizarre and disingenuous argument
that Plaintiff does not actually have the lifetime appointment guaranteed to
him by the New York Education Law but, rather, that the CBA somehow trumps his
statutory and constitutional protections.
While this circular argument
simply begs the question currently before the Court, it is also premised on the
faulty assumption that Plaintiff, as a bargaining unit member, has waived his
individual constitutional and statutory rights. He has not, and the Union may not.
“[C]ertain substantive rights -- life, liberty, and
property -- cannot be deprived except pursuant to constitutionally adequate
procedures. . . . ‘While the
legislature may elect not to confer a property interest in [public] employment,
it may not constitutionally authorize the deprivation of such an interest, once
conferred, without appropriate procedural safeguards.’” Cleveland Board of Education v.
Loudermill, 470 U.S. 532, 541 (1985) (quoting Arnett v. Kennedy, 416
U.S. 134 (1974) (Powell, J., concurring in part and concurring in result in
part)).
The union cites the inapplicable case of Antinore
v. State, 49 A.D.2d 6 (4th Dep’t 1975), where the state court upheld the
validity of a collective bargaining agreement provision for binding arbitration
in disciplinary proceedings involving civil service employees. However, nowhere did the court permit a
collective bargaining unit representative to waive an employee’s statutory
entitlement to his or her job, or eliminate an employee’s right to remedy an
unjust taking of that property right, whether it be through arbitration or the
courts.
A public employee’s right to a pre-deprivation hearing
derives from the Fourteenth Amendment, not from any statute or regulation. See Loudermill, 470 U.S. at 541, 105
S.Ct. 1487 (“The right to due process is conferred, not by legislative grace,
but by constitutional guarantee.”) (citations and internal quotation marks
omitted). Because defendants have not pointed to any provision of the CBA that
even purports to waive [the plaintiff’s] Fourteenth Amendment right to a
pre-demotion hearing, we find that he has not waived that right. See Fuentes
v. Shevin, 407 U.S. 67, 95, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (“For a
waiver of constitutional rights in any context must, at the very least, be
clear.”); see also Chaney v. Suburban Bus Div. of the Reg'l Transp. Auth.,
52 F.3d 623, 629-30 (7th Cir.1995) (holding that collective bargaining
agreement is not sufficiently explicit
to effect a waiver of union members’ right to pre-termination procedures).
Ciambriello v. County of Nassau, 292 F.3d 307, 322-23 (2d Cir. 2002). Certainly, nowhere in the CBA at issue here
has Plaintiff-Appellant waived his right to procedural due process or his
“tenure” rights under the New York Education Law.
In its brief, the Union argues that
Plaintiff-Appellant’s assertion that he has tenure is “inaccurate,” and further
argue that Plaintiff “does not possess an individual contract which governs his
employment relationship with the employer,”
Union Brief at p. 17. Instead,
the Union argues that the terms and conditions of Plaintiff’s employment “are
set forth [solely] in the collective bargaining agreement negotiated between
the State and the Union. Id. The CBA supplements his statutory rights
under the Education Law; it does not supplant them.
In his complaint, Plaintiff alleged that he and the
members of the putative class are “State University professional employees . .
. with tenure . . .forty (40) years of age or older).” Second Amended Complaint, ¶ 7, A-11. Plaintiff’s assertion that he has tenure
within the meaning of Education Law § 6212 must be taken as true in reviewing a
motion to dismiss on the pleadings, Branum v. Clark, 927 F.2d 698, 705
(2d Cir. 1991), and the allegations of the Complaint must be construed in
Plaintiff's favor. Papasan v. Allain,
478 U.S. 265, 283 (1986); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
The statute provides:
c. “Tenure” shall mean the right of a person to hold
his position during good behavior and efficient and competent service, and not
to be removed therefrom except for cause in the manner hereinafter provided.
2. All members
of the permanent instructional staff of the educational units governed and
administered by the board of trustees shall have tenure.
N.Y. Education Law § 6212(1)(c)-(2).
Despite the Union’s bald-faced assertion to the
contrary on p. 17 of its brief, tenure for state college employees is governed
by New York Education Law § 6210 (as to non-instructional professionals) and
New York Education Law § 6212 (as to teaching professionals). Moreover, Plaintiff Zarembka, who was
tenured in 1973, received notification of the award of tenure via an individual
letter addressed to him from the then-Chancellor of the State University; and
Zarembka was required to acknowledge his acceptance of the offer of tenure by
signing and returning a copy of the letter of notification. See also Second Amended Complaint, ¶¶
28, 31, A-14 to A-15.
As noted above, it is axiomatic that academic tenure
is a property interest, protected by the due process clause of the
Constitution. See Roth. The State never disputes Plaintiff’s
assertion that Article 36 has eviscerated his property interest in his tenured
appointment, and the State Defendants’s Union co-defendants have admitted that
Plaintiff and similarly situated individuals have no individual right to tenure
under the current collective bargaining agreement. The Union defendants’ attempt to suggest that such evisceration
pre-dates the inclusion of Art. 36 in the collective bargaining agreement must
be rejected upon consideration of the language of the sections of the
collective bargaining agreement referenced by the Union and the relevant
statute. The discipline and the
retrenchment Articles of the Collective Bargaining Agreement, and New York law
contain explicit limitations on Defendants’ ability to discharge tenured
employees. See, e.g., Collective
Bargaining Agreement Art. 19.3 to 19.9, inclusive, A-59 to A-63; Art. 35.2 to
35.8, inclusive, A-90 to A-95; N.Y. Education Law § 6212(8) and § 6212(9).
Finally, we note that, while Defendants-Appellees
argue that Article 36 could theoretically be removed from the CBA during the
next negotiations, Article 36 was not removed during the 1999-2003 CBA
negotiations, even though the instant suit had been served and file prior to
such negotiations.
As demonstrated above, Article 36, by it very terms,
deprives Plaintiff and the putative class of tenure without the due process
they are guaranteed by the New York Education Law and the United States
Constitution.
II. PLAINTIFF-APPELLANT’S §1983 CLAIM AGAINST THE
STATE DEFENDANTS IS NOT BARRED BY THE ELEVENTH AMENDMENT
The State has correctly argued that it is immune from
Plaintiff-Appellant’s suit for damages pursuant to Kimel v. Florida Board of
Regents, 528 U.S. 62 (2000); Pennhurst State School & Hosp. v.
Halderman, 465 U.S. 89 (1984) and Will v. Michigan Dept. of State Police,
491 U.S. 58 (1989). However, as the
State explicitly acknowledges in
footnote 6 of its Brief, Plaintiff-Appellant may obtain prospective injunctive
relief for a violation of his constitutionally protected rights under 42 U.S.C.
§ 1983.[1] Edelman v. Jordan, 415 U.S. 651, 677
(1974).
Here Plaintiff claims that Defendants-Appellees’
actions have violated his property rights (i.e. his and the putative class
members’ tenured employment) in violation of §1983, and seeks injunctive relief
in the form of:
·
a judgment compelling
Defendants to cease discriminating against the plaintiff and the class in any
manner;
·
a judgment awarding
Plaintiff and the class any and all appropriate relief including declaratory
and injunctive relief;
·
a judgment restraining
the Defendants from any and all “contracting out” under Article 36; and
·
a judgment directing
Defendants to rescind the agreement to “contracting out.”
Second Amended Complaint, A-25.
As the State implicitly acknowledges in its Brief,
injunctive relief is available against it in this action if the Court finds a
violation of §1983. The State has participated
in such violation of Plaintiff-Appellant’s right to property, as is set forth
in greater detail in Plaintiff-Appellant’s initial Brief, and the Brief of the
Union Defendants-Appellees.
Accordingly, the action must be reinstated against the
State Defendants-Appellees.
III. THE UNION HAS DISCRIMINATED AGAINST PLAINTIFF
IN VIOLATION OF THE ADEA
The Union Defendants-Appellees correctly assert that
they are not persons acting under color of state law within the meaning of 42
U.S.C. § 1983. Union Brief, p. 14. As noted above, the Union Defendants then
devote several pages of their brief to discussing Plaintiff’s (and by
extension, all putative class members’) lack of a property interest in his
tenured faculty appointment. Id.
pp. 17-19. However, the Union was sued
under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq.
(“ADEA”) and New York’s Human Rights Law.
N.Y. Executive Law § 296 et seq. Second Amended Complaint, ¶ 1, A-9.
Although it devoted five pages of its brief to
Plaintiff’s § 1983 claims, the Union has not addressed the question of its
amenability to suit under the state and federal age discrimination laws. It cannot be disputed that the Union
Defendants-Appellees are subject to suit under these statutes, as both the ADEA
and the Human Rights Law explicitly prohibit discrimination on the basis of age
by labor organizations. 29 U.S.C. §
623(c); N.Y. Executive Law § 296(1)(c).
In the Second Amended Complaint, Plaintiff asserted
that he and similarly situated individuals had suffered impairment of their
tenure rights solely on the basis of their age (Second Amended Complaint, ¶ 44,
A-17 to A-18), and explicitly argued that “[t]he contracting out clauses create
a loss of job security which was and continues to be a ‘taking’ by the
Defendants of a property interest of the plaintiffs without due process in
violation of the ADEA and the 5th and 14th Amendment to the U.S.
Constitution.” Second Amended
Complaint, ¶ 14, A-13.
Plaintiff-Appellant, a tenured professor of nearly 30 years’ standing,
asserted that he, like “90 to 95% of those [putative class members] with tenure
are 40 years of age or older.” Id.
¶ 38, A-16. Plaintiff-Appellant further
asserted that Article 36 was inserted into the Collective Bargaining Agreement
to enable the Defendants-Appellees to avoid remedying known longstanding wage
and benefit discrepancies among tenured professional employees by eliminating
tenure protections for himself and other similarly situated older professional employees. Id. ¶¶ 42-70, A-17 to A-22. The Union has not
responded to these claims at all, except to argue that Plaintiff lacks any
independent property right in his tenured status - an admission that the harm
Plaintiff has asserted has, in fact, occurred.
As is set forth above, this matter is ripe for
adjudication and, therefore, the action should be reinstated against both the
State and Union Defendants.
CONCLUSION
For the reasons stated above, Plaintiff-Appellant’s
claims are ripe, present a justiciable controversy and, therefore, the District
Court’s decision to dismiss this action should be reversed, and this case
should be remanded for further proceedings.
Dated: Hempstead, New York
July 15, 2002
Rosen, Leff
Attorneys for Plaintiff-Appellant
By:
_____________________________
David M. Fish, Esq. (7606)
Robert M. Rosen, Esq.
105 Cathedral Avenue
P.O. Box 2360
Hempstead, New York 11550
(516) 485-3500
Anna Marie Richmond, Esq.
Attorney for Plaintiff-Appellant
P.O. Box 1215
Buffalo, New York 14213
(716) 881-6593
[1] In
footnote 6, Defendants suggest that the availability of injunctive relief under
the ADEA may remain an open question, relying on Alabama v. Garrett, 531
U.S. 356, 374 (2001). However, as
Defendants acknowledge in the note, such question is not properly before this
Court.