As ordered by the Court (#47), representative plaintiff, Paul Zarembka, for the plaintiffs (“class”) through his attorneys, Chiacchia & Fleming, LLP, Andrew P. Fleming, of counsel, for the Second Amended Complaint against the Defendants, alleges:

INTRODUCTION

1.            Plaintiff, Paul Zarembka (“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, brings this action as an individual and as a representative of a protected class 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.]. 

CLASS ACTION ALLEGATIONS

2.            (a.)  Plaintiff brings the action for violations of 42 U.S.C. §1983 and for illegal age discrimination under New York State Human Rights Law on behalf of himself and as a representative of a class as defined by Rule 23, Federal Rules of Civil Procedure, under provisions of Rules 23(a) and 23(b) (1-3).  The class consists of all employees of the Defendant State of New York covered by its 1995-1999 collective bargaining agreement with Defendant United University Professions, (and the successor four-year agreement,) including, and more specifically, all academic and professional employees with “continuing” or “permanent” State of New York employee contracts who are forty (40) years of age or older.  This class is commonly referred to as State University professionals with “tenure”. 

(b.)  Additionally, plaintiff brings his ADEA claim of discrimination on the basis of age in a representative capacity, on behalf of himself and others with “tenure”.  Such representative action is expressly provided for by statute in 29 U.S.C. §626(b), incorporating 29 U.S.C. §216(b).  Those who are similarly situated are those described above at paragraph 2(a).

(c.)  Hereinafter, the class identified in paragraph 2(a) and the class identified in 2(b) will be, for brevity purposes, referred to jointly as the “class”, or “members of the class” or “class members”.

3.            Plaintiff is unable to state the exact number of persons in “the class” without discovery of Defendants’ books and records, but 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.  There are liability, injunction and damages questions of law and fact common to the class which predominate over any questions affecting individual members only, as specifically described hereinafter.  Defendants have acted and refused to act on grounds generally applicable to the class.

4.            The claims of the representative plaintiff are typical of the claims of the class, and plaintiff is able to and will fairly and adequately protect the interests of the class.  The attorneys for the plaintiff are experienced and capable in litigation in the field of age discrimination and Constitutional rights.  There is no known conflict between the individual members of the class which would preclude class representation.

5.            The prosecution of separate actions by individual members of the class would create the risk of [a] inconsistent or varying adjudications in different jurisdictions with respect to individual members of the class which would establish incompatible standards of conduct for Defendants; and [b] adjudications with respect to individual members of the class which would, as a practical matter, be dispositive of the interests of the members not parties to the adjudications, or substantially impair or impede their ability to protect their interests.

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

THE PARTIES

7.            Plaintiff, Zarembka, is a State employee with tenure and he is a representative plaintiff for all State University professional employees throughout the State system with tenure who are now forty (40) years of age, or older or who will be forty (40) plus years of age during the terms of the subject collective bargaining agreements, or their successor agreement(s), as the agreements are described hereinafter.

8.            Defendant State of New York (“State”) is the employer of the plaintiff’s and the class’s.  The State is a party to the said collective bargaining agreement(s) as such are described hereinafter.  State is associated with the State University of New York (“SUNY”).  Plaintiff and the members of the class work at various SUNY campuses and sites.  State is the “employer” under the ADEA, the New York Human Rights Law and under 42 U.S.C. §1983.

9.            Defendant George E. Pataki is the elected Governor of the State of New York.  As such, he is able to carry out those duties tasked to the Executive Branch of the government of the said State.

10.            Defendants Agnello, Rowan, DeMarco and Pellegrini are signatories to the subject collective bargaining agreement mentioned hereinafter on behalf of the State of New York.  They are representatives of the New York State Governor’s Office of Employee Relations. They are sued in their official categories as those persons who are in a position to carry out the orders of this Court relative to the said modification(s) of the said collective bargaining unit.  These said Defendants are also named for the positions they hold as described in the subject collective bargaining agreements and to the extent that any have been replaced, their successors we hereby designate as parties.

11.            Defendant United University Professions, Inc., (“UUP”) is the fully recognized exclusive bargaining agent for collective negotiations for the plaintiff and the members of the proposed class.  UUP is a union and is, upon information and belief, a New York non-profit corporation.  Defendant Scheuerman is named in his official capacity as President of the UUP.  Scheuerman is sued in his official category as a person who is in a position to carry out the orders of this Court relative to the said modification(s) of the said collective bargaining unit.  This said Defendant is also named for the position he holds as described in the subject collective bargaining agreements and to the extent that he has been replaced, his successors we hereby designate as a party.

JURISDICTION AND VENUE

12.            Jurisdiction of this Court is invoked pursuant to 28 U.S.C. Sections 1331, 1343, 1367 and 1441.  Plaintiff’s claim under the New York Human Rights Law is a pendent claim.

13.            Venue is proper here in the Western District of New York as the plaintiff, as well as countless other persons in the class reside in this District.

NATURE OF CLAIM

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).

15.            The relief sought includes injunctive relief, i.e., an Order of the Court entering a judgment directing the Defendants to modify their CBA(s) so as to delete any and all references to contracting out.

16.            The class will also seek money damages for age discrimination under the New York Human Rights Law.

ADMINISTRATIVE/PRIOR PROCEEDINGS

17.            The representative plaintiff and another member of the class timely filed charges of employment discrimination on behalf of themselves and members of the class under the ADEA with the Equal Employment Opportunity Commission on or about March 28, 1998 and the New York State Division of Human Rights.

18.            They received a “Notice of Right to Sue” from the EEOC for themselves and the class on or about October 17, 1998.  Plaintiffs (“class”) as representatives of the class have exhausted the administrative requirements to proceeding before this Court.

19.            On or about January 14, 1999, representative plaintiffs filed a timely Complaint.

20.            Thereafter, on May 7, 1999, representative plaintiffs filed a timely Amended Complaint.

21.            In response to the Amended Complaint, in September of 1999, the Defendants brought motions to dismiss same.  Then, in September of 2000, the Court entered an Order (#47) permitting the plaintiffs to file this Second Amended class action Complaint.

22.            This Second Amended Complaint is timely.

STATEMENT OF CLAIM

23.            On September 30, 1997, the Defendants executed a CBA covering the years 1995-1999.  Since then the Defendants have executed a successor CBA.  

24.            On or about December 15, 1997, plaintiffs learned that their employer, i.e., the State of New York, and the UUP had agreed, on or about September 30, 1997, to permit the contracting out (Article 36) of professional employees with tenure.

25.            Also, on or about September 30, 1997, and quite coincidently, the State and UUP continued their long-standing contractual agreement that claims of discrimination “shall, at the election of the employee, be subject to review in accordance with State and Federal procedures established for such purpose, but shall not be subject to review under provisions of Article 7, Grievance Procedure” (Article 10.4 of the CBA).

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

27.            The above agreement between the Defendants is illegal and in violation of the ADEA, 42 U.S.C. §1983 and the New York Human Rights Law.

28.            Article 36 of the CBA(s) 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 it reads (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.

30.            Upon information and belief, the agreement to insert Article 36 also violates various State of New York policies, rules and regulations relating to, inter alia, age discrimination.

31.            The insertion of Article 36 into the CBA(s) also violates the countless contractual agreements (tenure arrangements) reached by members of the class with the State which is another on-going “taking”.

32.            UUP is not a party to any individually negotiated contracts for “tenured” appointments accepted, to date, by individual professional employees, under Article 30 of the said CBA’s.

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 specified terms.  These persons have fewer security rights than those possessed by the class (i.e., the rights mentioned in the previous paragraph).

35.            On or about July 31, 1998, the State University of New York Board of Trustees (“Trustees”) reprinted their “Policies of the Board of Trustees” appointment terms and conditions for all State University academic and/or professional staff with permanent and/or continuing appointment contracts while keeping the said Policies exactly the same as the previously printed Policies of July 12, 1994.

36.            Contracting out is not provided for in the Policies of the Board of Trustees that have been in effect for all pertinent periods of time and to date.

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 the ADEA in that 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.

39.            The Defendants violated the ADEA, the Human Rights Law and 42 U.S.C. §1983 when the State and UUP agreed to Article 36 of the said CBA(s) (Contracting Out).

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.

41.            Upon information and belief, no SUNY professional employees agreed to contracting out; in fact, Professional Services Negotiating Unit (“PSNU”) members, through their representatives in the UUP Delegate Assembly (“DA”), opposed contracting out in DA resolutions approved in 1996 and, again, in 1997.

42.            Upon information and belief, and in an age-discriminatory manner, with the 1995-1999 CBA negotiation, the State deliberately failed to remedy inequities in wages and benefits for professional employees forty (40) years of age or older despite specific studies by the State and/or UUP and even though State and UUP representatives agreed that the terms and conditions of the 1995-1999 Agreement would cover pay discrepancy issues back to September 30, 1981.

43.            Upon information and belief, the provisions in Article 36 of the said CBA(s) are a subterfuge for the State to select professional employees arbitrarily, one-by-one, and/or area-by-area, and/or campus-by-campus, for termination without adhering to the CBA(s)’ Article 35 (Retrenchment) provisions.

44.            Upon information and belief, there is no reason but age discrimination for the State and UUP to agree to create a non-existent right for the State to eliminate tenured professional employee(s) for no reason.

45.            Upon information and belief, and notwithstanding State and Federal law prohibiting all forms of discrimination and the above specific article preserving benefits in effect at the time, the State unilaterally and illegally stopped its payment to the State/UUP Benefit Trust Fund during collective bargaining meetings; this heavy-handed bargaining was utilized for the purpose of carrying out the goal of increasing the State’s flexibility to remove older and tenured workers.

46.            Upon information and belief, the State deliberately stopped payment into the UUP Benefit Trust Fund to demonstrate to any/all professional employees what the State could do to harm State University employees until UUP and its membership agreed to ratify the terms and conditions proposed by the State for a 1995-1999 Agreement, including and especially Article 36.

47.            Upon information and belief, the State illegally diminished and/or impaired numerous benefits and/or privileges provided by contracts, laws, rules and /or regulations for employees who were forty (40) years of age or older during the time the predecessor Agreement (1991-1995) was in effect, i.e., from approximately December 1992 to September 30, 1997.

48.            Upon information and belief, any actions by the Defendants, and in particular the State and its representatives, to diminish and/or impair any benefits or privileges provided by contracts, laws, rules and/or regulations, during the course of contract negotiations for the current and post two CBAs is and/or was illegal age discrimination by them.

49.            Defendants, individually and jointly, deliberately misinformed and misled members of the class during the collective bargaining process from 1995 to September 30, 1997, and they continue to mislead them.  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.

50.            Members of the UUP negotiating team did not tell State University professional services negotiating unit PSNU employees that there was any risk in the proposed agreement before unit members voted on the Agreement.

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.

52.            Upon information and belief, and in an age-discriminatory manner, at the time of the 1995-1999 CBA negotiations the State threatened one or more individual (unnamed) member(s) of the class with the loss of employment benefits in violation of a Constitutional right to equal treatment.

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.

54.            Upon information and belief, the UUP advised members (incorrectly), on or about August 18, 1997, that the “regulations” for contracting out could insure the employment security of every member of the subject bargaining unit -- academic and professional.

55.            On or about September 30, 1997, Governor Pataki and UUP agreed to a Tripartite Redeployment Committee that would “meet as needed to discuss open issues related to redeployment consideration” (36.3) and other issues related to the provisions in Article 36 (contracting out) or Appendix A-27 (Memorandum of Understanding on Contracting Out) in the 1995-1999 Agreement between the State and UUP.

56.            The said Tripartite Redeployment Committee is a three (3) person committee.  The State Governor is represented by two (2) representatives.  The UUP is represented by one, its President.

57.            As a result of the Governor’s request, on or about January 15, 1998, the life-time tenure appointments of State University professional employees were arbitrarily changed to a day-to-day appointment status that is dependent upon the State and/or an arbitrary decision by the three (3) person Tripartite Redeployment Committee.

58.            The above actions by the State, specifically to include those mentioned in paragraph 57, violate the protected due process rights of members of the class under the U.S. Constitution,  specifically the Fifth and Fourteenth Amendments thereto.

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.

61.            In addition, the Defendants have deliberately denied equal protection to equal employees [members of the class] by agreeing to arbitrarily allow for professional employees in the State University under the provisions of Article 36 to be sub-contracted out; the State has taken away a property interest of some thus denying them equal protection of the Policies of the Board of Trustees.

62.            Upon information and belief, Defendants have unlawfully agreed, beginning on or about September 30, 1997, and to date, to initiate changes in State laws that will deny State employees [members of the class] equal protection and due process of law under the Fourteenth Amendment of the U.S. Constitution.

63.            In Defendants’ CBA, they specifically agree in writing that age is a specific criteria under the provisions of Article 36 for any severance payments for employees “affected” by contracting out under the provision defined in Appendix A-27, Article C, Section 3.2 of the CBA(s).

64.            The Defendants mutually agreed, on or about September 30, 1997, that severance benefits shall apply solely to affected employees, who the Defendants determine to be eligible and only to professional employees who have agreed to accept the terms, as set forth by the State, are notified of their acceptance by the State and who “have executed a Severance Agreement”.

65.            The above provisions of the CBA are invalid because the State has no right under any State or Federal law to any arbitrary and capricious contracting out of SUNY professional employees with tenure.

66.            Under Article 36, the State plans to continue to employ some professional employees, offer redeployment consideration to other employees, and require other employees to apply for severance.

67.            Upon information and belief, the Defendants will use the provisions in Article 36 to arbitrarily select some employees for “good” treatment and others for “bad” treatment and that this violates the ADEA, the Human Rights Law and 42 U.S.C. §1983.

68.            Upon information and belief, the Defendants are covering up discrimination dating back to September, 1981 by selectively identifying higher paid male employees and lower paid female employees for early retirement incentive benefits and that this action violates Federal law(s), including but not limited to the ADEA and 42 U.S.C. §1983, and violates the Human Rights Law.

69.            From September, 1981 to date, the Defendants have issued reports regarding inequities in salary and benefits.  Plaintiff claims that 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.

70.            Other members of the class who could be named as individual plaintiffs have told the named plaintiff that they are afraid the State will take away their current State jobs, benefits and/or privileges if they are specifically named herein.  The full list of the individuals affected by the above actions by the Defendants is unknown at this time.

FIRST CAUSE OF ACTION

71.            Incorporated herein by reference are all the allegations made in the above numbered paragraphs 1 through 70.

72.            By agreeing to contract out (terminate) any State University employee with tenure status, who is forty (40) years of age or older, the Defendants violated and continue to violate the ADEA, more particularly, 29 U.S.C. §623(a)(1), to the detriment of members of the class.

73.            As a result thereof, the plaintiff in his representative capacity for the class seeks injunctive and other equitable relief as described below.

SECOND CAUSE OF ACTION

74.       Incorporated herein by reference are all the allegations made previously in this complaint as if fully stated herein, specifically all the allegations made in paragraphs numbered 1 through 70.

75.            By agreeing to unequal conditions for equal employees, the Defendants violated the Fifth and Fourteenth Amendments to the U.S. Constitution, to the detriment of members of the class.

76.            A claim lies under 42 U.S.C. §1983 for said violations of the Fifth and Fourteenth Amendments to the U.S. Constitution.

77.            As a result thereof, plaintiff, on his own behalf and on behalf of those similarly situated, seeks monetary and injunctive relief as described below.

THIRD CAUSE OF ACTION

78.            Incorporated herein by reference are all the allegations made previously in this complaint as if fully stated herein, specifically all the allegations made in paragraphs numbered 1 through 70.

79.            By agreeing to Article 36 of the said CBA(s), Defendants have deprived the plaintiffs of a current and real property interest without due process and in violation of the Fifth and Fourteenth Amendments to the U.S. Constitution.

80.            A claim lies under 42 U.S.C. §1983 for said violation(s) of the Fifth and Fourteenth Amendments to the U.S. Constitution.

81.            As a result thereof, plaintiff, on his own behalf and on behalf of those similarly situated, seeks monetary and injunctive relief as described below.

FOURTH CAUSE OF ACTION

82.            Incorporated herein by reference are all the allegations made previously in this complaint as if fully stated herein, specifically all the allegations made in paragraphs number 1 through 70.

83.            As a result of the aforesaid conduct, the Defendants have violated the rights of members of the class to be free of age discrimination in violation of New York State’s Human Rights Law.

84.            More specifically, Defendants have taken actions that have a (negative) disparate impact on a class of older persons by agreeing to permit the creation of unequal terms of employment for employees in the proposed class.

85.            An unspecified amount of money damages for any and all actual, compensatory and consequential damages incurred by members of the proposed class as a result of this agreed-upon policy of contracting out employees is sought.

PRAYER FOR RELIEF

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 judgment 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 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.

Buffalo, New York

__________________________________
By: Paul Zarembka
151 Fordham Drive
Buffalo, New York 14216
Telephone: (716) 875-1698

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Andrew P. Fleming
CHIACCHIA & FLEMING, LLP
5113 South Park Avenue
Hamburg, New York 14075
Telephone: (716) 648-3030