3. Plaintiff ... avers on information and belief that the class exceeds ten thousand members. The members of the class are so numerous as to make it impracticable to bring them all before the Court....

6. The class action is superior to other available methods for the fair and efficient adjudication of the issues.

14. This action seeks injunctive relief for the class under the ADEA, and under 42 U.S.C. §1983. The action also seeks money damages under the Human Rights Law. The Defendants, on September 30, 1997, executed a collective bargaining agreement ("CBA") that included contracting out provisions (at Article 36 thereof). A subsequent CBA has included the same contracting out provisions. The contracts cover the years 1995-1999 and 1999-2003. It is the contention of the class that these contracting out provisions violate the ADEA because of their disparate impact on employees protected by the ADEA (and the CBA). The 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 (42 U.S.C. §1983).

26. On or about September 30, 1997, the vast majority of professional employees with tenure were forty (40) years of age or older.

28. Article 36 of the CBA affirms that for the first time ever for professional services in SUNY the State claims "the right" to "contract out" for services and thus unilaterally breach tenure contracts for thousands of individuals, to which the State is a signatory through its agent the State University Chancellor. Specifically at Article 36.1 of the CBA (for the first time as of September of 1997):

"The State has the right to contract out for goods and/or services. If employees are affected as a result of the State's exercise of its right to contract out, such employees shall be entitled to redeployment consideration in accordance with Article A of the Memorandum of Understanding Contracting Out."

29. The inclusion by agreement into the CBA of Article 36 in which the State allowed the right to arbitrarily and capriciously break professional employee contracts, i.e., tenure contracts, is a "taking" without due process and illegal as violative of the ADEA and New York Human Rights Law.

33. Under certain policies, contracts, rules and regulations of the State and its State University Board of Trustees, professional employees with continuing appointment (academic employees) and professional employees with permanent appointment (professional employees) have life-time appointments in effect until the individual employees voluntarily resign or voluntarily apply for retirement benefits.

34. Under certain policies, contracts, rules and/or regulations of the State and its State University Board of Trustees, some professional employees' term appointments are/were for a specified period, i.e. 3-5 years, and may be renewed and individual professional employee term appointments cease automatically at the end of their specific terms. These persons have fewer security rights that those possessed by the class (i.e., the rights mentioned in the previous paragraph).

37. Article 36 of the CBA(s) thus contradicts the Policies of the Board of Trustees and the individual contracts of the members of the class.

38. Article 36 violated the rights of the class under ADEA in that Article 36 allows for 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.

40. Upon information and belief, although the Defendant Governor forced professional SUNY employees to work without any raises for over two (2) years (from July 1995 to January 1998), the vast majority of members of Defendant UUP continued to oppose the Governor's demand to end tenure.

49. ...As a result of the misleading statements made by the State and UUP during the prolonged negotiations period (1995 to 1997) and the specious assurance from UUP that the proposed agreement would "insure the employment security of every member of our bargaining unit -- academic and professional", State University professional employees were given a false sense of security by UUP and, while under duress, voted to ratify the agreement with the understanding that Article 36 (contracting out) was not any risk for members.

51. The withholding of health benefits by the State for over two (2) years was a deliberate and tactical step taken to pressure employees by causing duress.

53. A person who acts under duress cannot ratify an agreement or contract until the duress is removed. The duress of withheld benefits was followed by the State adding to the duress by threatening to exercise contracting out (termination) arbitrarily.

59. The State and UUP unlawfully agreed, on or about September 30, 1997, to implement procedures to deprive tenured professional employees in the University of certain "property" interests without due process of law or any equal protection of the laws.

60. Said "property" interest includes the added security of the protections afforded by a tenure contract.

69. From September, 1981 to date, the Defendants have issued reports regarding inequities in salary and benefits. Plaintiffs claim the Defendants have identified significant wage disparities for employees who are forty (40) and older and the Defendants have failed, to date, to release this information to the public. The data for all the State professional employees working in the University is under the control of the State.

WHEREFORE, the Plaintiff, individually and on behalf of others similarly situated, demands the following relief:

1. Trial by jury of all issues so triable;

2. A judgment compelling the Defendants to cease discriminating against the plaintiff and the class in any manner;

3. A judgment awarding plaintiff and the class all costs and disbursements for this action;

4. A judgement awarding plaintiff and the class any and all appropriate relief including declaratory and injunctive relief;

5. A judgment awarding plaintiff and the class attorney fees and the costs and disbursements of this action pursuant to 42 U.S.C. §1988;

6. A judgment restraining the Defendants from any and all "contracting out" under Article 36 of of the 1995-1999 Agreement or any subsequent Agreements;

7. A judgment directing Defendants to rescind the agreement to "contracting out" (Article 36) including but not limited to the provisions in Appendix A-27 in the 1995-1999 Agreement;

8. A judgment awarding money damages in a yet to be specified amount for Defendants violations of New York State's Human Rights Law and 42 U.S.C. §1983; and

9. A judgment awarding such other and further relief as is available under the laws of the United States and which to the Court may deem just and proper.

Dated: April 30, 2001
Buffalo, New York