UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
PAUL ZAREMBKA, individually and on behalf of
all academic and all professional employees with
permanent or continuing State University of New
York individual contract(s) who are now, or will be
forty (40) years of age or older while the State\UUP
1995-1999 Agreement and the successor agreement
thereto are in effect, and all other similarly situated
persons, and as a Representative Plaintiff under the
Age Discrimination in Employment Act,
Plaintiffs,
-vs- 99-CV-32C
STATE OF NEW YORK, GOVERNOR GEORGE E.
PATAKI, LINDA AGNELLO, MICHAEL P. ROWAN,
ALLEN C. DeMARCO, WALTER J. PELLEGRINI,
UNITED UNIVERSITY PROFESSIONS, INC., and
WILLIAM E. SCHEUERMAN,
Defendants.
________________________________________________________________________
________________________________________________________________________
DECISION
AND
ORDER
["Item" numbers refer to Docket numbers]
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________________
PAUL ZAREMBKA, individually and on behalf of
all academic and all professional employees with
permanent or continuing State University of New
York individual contract(s) who are now, or will be
forty (40) years of age or older while the State\UUP
1995-1999 Agreement and the successor agreement
thereto are in effect, and all other similarly situated
persons, and as a Representative Plaintiff under the
Age Discrimination in Employment Act,
Plaintiffs,
-vs- 99-CV-32C
STATE OF NEW YORK, GOVERNOR GEORGE E.
PATAKI, LINDA AGNELLO, MICHAEL P. ROWAN,
ALLEN C. DeMARCO, WALTER J. PELLEGRINI,
UNITED UNIVERSITY PROFESSIONS, INC., and
WILLIAM E. SCHEUERMAN,
Defendants.
___________________________________________
APPEARANCES: CHIACCHIA & FLEMING, LLP (ANDREW
P. FLEMING, ESQ., of
Counsel),
Buffalo, New York, for Plaintiff.
ELIOT
SPITZER, ESQ., ATTORNEY GENERAL OF THE STATE OF
NEW
YORK (WILLIAM D. MALDOVAN, ESQ., Assistant Attorney
General,
of Counsel), Buffalo, New York for New York State
Defendants.
JAMES
R. SANDNER, ESQ. (ANTHONY J. BROCK, ESQ., of
Counsel),
Albany, New York, for Non-Government Defendants.
INTRODUCTION
Plaintiff Paul Zarembka (“Zarembka”) brought this action individually and as a representative of a class of “all academic and all professional employees with permanent or continuing State University of New York individual contract(s) who are now, or will be forty (40) years of age or older while the State/UUP 1995-1999 Agreement and the successor agreement thereto are in effect, and all other similarly situated persons, and as a Representative Plaintiff under the Age Discrimination in Employment Act.” Item 51. Plaintiff's second amended complaint asserts claims under the Age Discrimination in Employment Act (“ADEA”), as amended, 29 U.S.C. §§ 621.623(a)(1), et seq; 42 U.S.C. § 1983; and the New York State Human Rights Law for violation of the age discrimination provisions of New York Executive Law § 296, et seq. Defendants in this action, the State of New York, Governor George E. Pataki, Linda Agnello, Michael P. Rowan, Allen C. DeMarco, and Walter J. Pellegrini (the “Government Defendants”); and United University Professions, Inc. and William E. Scheuerman, (the “non-Government Defendants”) have each filed motions to dismiss plaintiff's second amended complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Items 54 and 56.
The court heard oral argument on the motions on January 4, 2002. For the reasons that follow, both the Government Defendants' and the Non-Government Defendants' motions to dismiss are granted.
BACKGROUND
This action was originally filed on January 14, 1999 by pro se plaintiffs Paul Zarembka and Georgiana Jungels. Item 1. Plaintiffs amended their complaint on May 7, 1999. Item 2. Both the Government and Non-Government Defendants moved to dismiss Items 14 and 15. Shortly thereafter, plaintiffs moved to amend their amended complaint. Item 20. By order entered September 20, 2000, this court granted plaintiffs' motion to file a second amended complaint, and dismissed the defendants' motions to dismiss, allowing defendants to renew their motions after the second amended complain was filed. Item 47. The second amended complaint was filed by Zarembka [fn.1] on April 30, 2001. Item 51. Both the Government and Non-Government Defendants have again filed motions to dismiss, Items 54 and 56, which plaintiff opposed. Items 63-65. The Non-Government Defendants filed a reply memorandum of law and reply affidavit, Items 70, 71, and the Government Defendants filed a reply memorandum of law. Item 73.
FACTS
For the purposes of a motion to dismiss under Rule 12(b)(6), the facts of the complaint are presumed to be true, and all factual inferences are drawn in the plaintiff's favor. Mina Investment Holdings, Ltd. v. Lefkowitz, 16 F.Supp.2d 355, 358 (S.D.N.Y. 1998) (quotation omitted). Accordingly, the factual allegiance considered here and set forth below are taken from the second amended complaint and do not constitute findings of fact by the court. They are presumed true only for the purposes of deciding the present motion.
A. The Parties
The second amended complaint (the “Complaint”) describes Zarembka as a State employee with tenure. Item 51, ¶7. It also describes him as a class representative, as indicated supra. For purposes of the causes of action under 42 U.S.C. § 1983 and the Human Rights Law, 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). ... This class is commonly referred to as State University professionals with 'tenure'.” Id.,¶2(a). Zarembka also brings the ADEA claim in a representative capacity, on behalf of himself and others with “tenure.”Id., ¶2(b). Plaintiff believes the class exceeds 10,000 members, and that liability, and injunction and damages questions of law and fact in common, predominate over individual issues. Id., ¶3. The class has not been certified.
Defendant State of New York (“State”) employs plaintiff and the members of the class who work at various State University of New York (SUNY) campuses. Id., ¶8. The State is a party to the Collective Bargaining Agreements (CBA) that described infra, and is the “employer” under the ADEA, the Human Rights Law, and under 42 U.S.C. § 1983. Id.
Defendant George E. Pataki is the elected Governor of New York. Id., ¶9. Defendants Agnello, Rowan, DeMarco, and Pellegrini are representatives of the Governor's Office of Employee Relations and are signatories to the CBA on behalf of the State. They are sued in their official capacities. Id., ¶10.
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.”Id., ¶11. Plaintiff describes UUP as a union and as a New York non-profit corporation. Id.Defendant Scheuerman is named in his official capacity as President of the UUP. Id. He is also one of the UUP signatories to the CBA. Item 56, Ex. A, p. 61.
B. The Issues
At issue in this action is the “contracting out provision,” Article 36 of the CBA, signed on September 30, 1997 by the UUP and the State. This CBA covered the years 1995-1999. A subsequent CBA, covering the years 1999-2003, included that same provision. Item 51, ¶14. The contracting out provision reads:
Id., ¶28. Plaintiff asserts 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 (42 U.S.C. § 1983).”
According to plaintiff, 90 to 95 percent of tenured SUNY employees are 40 years of age or older. Since Article 36 allows for termination, redeployment, forced resignations, or relocation of the “affected” tenured employees, id., ¶38, he claims the State now has the power to select professional employees arbitrarily for termination without adhering to the CBA Retrenchment provisions, id., ¶43, therefore breaking professional employee contracts. Id., ¶29. Zarembka accuses the State of having used “heavy handed bargaining” methods during the period when the CBA was being negotiated. These tactics, including “unilaterally and illegally” stopping payment to the State/UUP Benefit Trust fund, id., withholding employee health benefits for over two years, and threatening at least one class member with loss of employment benefits, served to pressure SUNY employees/ UUP members into ratifying the CBA. Id., ¶¶45, 49, 51, 52, 53. In addition, all of the defendants “deliberately misinformed” class members during the collective bargaining process, leading them to believe that Article 36 did not represent any risk to them. Id., ¶¶49, 50, 54. As a result of the CBA's inclusion of Article 36, the State diminished and impaired benefits and privileges provided by contracts, laws, rules, and regulations for employees 50 or older that UUP members possessed during the previous CBA (1992-1997). Id., ¶47.
On or about September 30, 1997, Governor Pataki and the UUP agreed to establish a Redeployment Committee to “meet as needed to discuss open issues related to redeployment consideration” and other issues related to Article 36. Id., ¶55. Apparently as a result of establishing the Redeployment Committee, plaintiff asserts that on or about January 15, 1998, the lifetime tenure appointments of SUNY professional employees were changed to day-to-day appointments, dependent upon the State or a decision by the Committee. Id., ¶57.
Zarembka contends that defendants will use Article 36 to arbitrarily select some employees for 'good' treatment and others for 'bad' treatment, and that 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. Id., ¶¶67, 68.
Zarembka asserted four causes of action:
(1) Defendants violated the ADEA, particularly 29 U.S.C. § 623(a)(1), by agreeing to contract out any State University employee with tenure status who is 40 years of age or older;
(2) Defendants violated the Fifth and Fourteenth Amendments to the U.S. Constitution, pursuant to 42 U.S.C. § 1983, by agreeing to unequal conditions for equal employees;
(3) Defendants violated the Fifth and Fourteenth Amendments to the U.S. Constitution, pursuant to 42 U.S.C. § 1983, by agreeing to Article 36, which deprived the plaintiffs of a current and real property interest without due process; and
(4) Defendants violated the rights of class members to be free of age discrimination pursuant to the New York State Human Rights Law.
The action seeks injunctive relief for the class under both the ADEA and under 42 U.S.C. 1983, i.e., a judgment restraining defendants from any and all “contracting out” under Article 36, and a judgment rescinding the “contracting out” agreement. It also seeks money damages under the Human Rights Law and 42 U.S.C. § 1983. Plaintiff requests attorney fees and costs and disbursements pursuant to 42 U.S.C. § 1988. Item 51, p. 18.
DISCUSSION
II. Legal Standards
A. Motion to Dismiss Based on Lack of Subject Matter Jurisdiction
In a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), the defendants may challenge either the legal or factual sufficiency of the plaintiff's assertion of jurisdiction, or both. Robinson v. Government of Malaysia, 2;69 F. 3d 133, 140 (2d Cir. 2001). If the defendants challenges only the legal sufficiency of the plaintiff's jurisdictional allegations, the court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff. Sweet v. Sheahan, 235 F. 3d 80, 83 (2d Cir. 200). But where evidence relevant to the jurisdictional question is before the court, the “district court....may refer to [that] evidence.” Makarova v. United States, 201 F. 3d 110, 113 (2d Cir. 2000).
B. Motion to Dismiss Based on Failure to State a Claim
A court may not dismiss a complaint under Rule 12(b)(6) unless the movant demonstrates “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” McLain v. Real Estate Bd. of New Orleans, Inc., 444 U.S. 232, 246 (1980) quotation and citation omitted). Therefore, “the issue before the court 'is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'” Solow Building Co. v. Nine West Group, Inc. 2001 WL 736974 at *2 (S.D.N.Y., June 29, 2001), citing Villager Pond, Inc. v. Town of Darien, ; 56 F.3d 375, 378 (2d Cir. 1995) (internal quotation omitted). When passing on a motion to dismiss, the court must accept the allegations in the complaint as true and construe them in favor of the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
II. Ripeness
A fatal flaw which permeates plaintiff's complaint concerns the issue of ripeness. The ripeness inquiry goes directly to whether the court has subject matter jurisdiction over a complaint. Ripeness presents a “constitutional prerequisite” to the exercise of federal jurisdiction. Marchi v. BOCES, 173 F. 3d 469, 478 (2d Cir. 1999) (quotation omitted). “Where a party seeks to challenge a statute or policy prior to its enforcement, the ripeness doctrine requires that the challenge grow out of a 'real, substantial controversy between parties' involving a 'dispute definite and concrete'.” Id., quoting Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298 (1979). In evaluating a ripeness inquiry, a court must consider “both the fitness of the issues for judicial decision and the hardship resulting from withholding judicial consideration.” Marchi, 173 F. 3d at 478.
Accordingly, an action lacks ripeness when it “involves uncertain and contingent future events that may not occur as anticipated, or indeed may not occur at all.” Amsat Cable Ltd. v. Cablevision of Connecticut Ltd. Partnership, 6 F 3d 867, 872 (2d Cir. 1993) (citation omitted). The mere “potential for future injury ... is insufficient to render an issue ripe for review.” Motor Vehicle Mfrs. Assn. 79 F.3d 1298 at 1306 (quotation omitted). A court must avoid “engaging in premature adjudication.” Longway v. Jefferson County Bd. of Supervisors, 24 F.3d 397, 400 (2d Cir. 1994) (quotations and citations omitted).
It is Zarembka's burden to allege facts demonstrating that the case presents a justiciable controversy. Motor Vehicles Mfrs. Ass'n, 79 F.3d at 1305.
Plaintiff's claims founder on the jurisdictional shoal of ripeness. He asserts that the inclusion of Article 36 in the 1995 and 1999 editions of the CBA has injured tenured SUNY employees under the ADEA, HRL, and the Fifth and Fourteenth Amendments to the Constitution by allowing the State the “right to arbitrarily and capriciously break professional employee contracts.” Item 51, ¶29. Article 36 thus “create[d] 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 he ADEA....” Id. ¶14. Zarembka concludes that “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.” Id., ¶44.
In countering defendants' arguments that no injury has been alleged, Zarembka cites paragraphs 38 and 59 of the Second Amended Complaint as identifying injuries that the plaintiff class has suffered. Paragraph 38 provides:
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....
Id., ¶38.
Paragraph 50 provides:
Id., ¶59.
Zarembka argues that a plaintiff need not “await the consummation of threatened injury to obtain preventative relief,” citing Valmonte v. Bane, 18 F.3d 992, 999 (2d Cir. 1994) (citation omitted); Berger v. Heckler, 771 F.2d 1556, 1563 (2d Cir. 1985); and Blum v. Yaretsky, 457 U. S. 991, 1000 (1982). These cases are all distinguishable from the instant case. In Berger and Blum, the threat of injury was real and immediate, based on the previous conduct of defendants. In Valmonte, the plaintiff challenged the constitutionality of the state register containing names of people who had engaged in child abuse. Defendants asserted that the case was not ripe because plaintiff had not suffered injury, i.e., being deprived of employment or other injury, as a result of her name being included on the Register. The Second Circuit considered the case ripe, given that plaintiff's name on the register was “a direct threat not only to her reputation but to her employment prospects.” 18 F.3d at 999.
In this case, the State has not previously engaged in any conduct that might lead Zarembka to consider the threat of implementation of Article 36 as real and immediate. Neither does inclusion of Article 36 amount to a present injury of reputation and employment prospects found in Valmonte. The Non-Government Defendants have directed the court's attention to Auerbach v. The Board of Education of the Harborfields Central School Dist., 136 F.3d 104 (2d Cir. 1998), which upheld the district court's dismissal of an ADEA claim challenging changes to a retirement plan where no teacher had retired under the changes and the changes were subject to possible elimination in future collective bargaining negotiations. Item 57, p. 6. The Second Circuit noted that none of the teachers had suffered any injury in fact. The claim was contingent on retirement. “[T]he factual event forming the basis of the claim, i.e., their retirement, had not occurred at the commencement of the action.” 136 F.3d at 109. Here, too an actual injury, i.e., actual termination or contracting out, has not been alleged in the complaint. Without an injury, there is no case or controversy, and no subject matter jurisdiction.
In addition, as noted by the Non-Government Defendants, even if the contracting out provision might be utilized, “there is no evidence whatsoever that the contract would be implemented in an unconstitutional manner. All of the injuries suggested by plaintiff are simply speculative.” [fn.2] Item 71, p. 3.
Zarembka insists that Article 36 has already caused injury to himself and other members of the class. But despite the fact that the provision has been in place since September 30, 1997 and covers, according to his estimate, more than 10,000 class members, he has not alleged one instance, either in the First or Second Amended Complaints, where a class member has been contracted out, losing the benefits of tenure. This fact is highly probative when assessing the “immediacy” of a ripeness challenge and whether the case is “unfit for review”. If the State and UUP have not enforced this provision in the four years since it has been included in the CBA against any member of a class purportedly covering over 10,000 members, possible enforcement can only be considered speculative at present. Nevertheless, if Article 36 is implemented against him at some time in the future, Zarembka will be able to file an action at that time. Dismissing it now does not foreclose that possibility, and does not prejudice him.
The court thus finds that Zarembka's ADEA, HRL, and 42 U.S.C. § 1983 claims are not ripe and do not present a justiciable case or controversy. As such, the court has no subject matter jurisdiction over his claims, and must dismiss his complaint, without prejudice.
CONCLUSION
Based on the reasoning set forth above, the court grants the Government Defendants' and the Non-Government Defendants' motions to dismiss based on lack of subject matter jurisdiction and failure to state a cause of action, without prejudice. Items 54 and 56.
So ordered.
___________________________________
JOHN
T. CURTIN
United
States District Judge
Dated: January 15, 2002
p:\opinions\99-32.jan1102dis
1 Georgiana Jungels, a plaintiff in the original and first amended complaint, did not join Zarembka as a plaintiff in the second amended complaint. Item 51.
2 The State Defendants cite a 13-page “memorandum of understanding on contracting out,” appendix A-27 of the CBA (attached as Ex. A. to item 56). The memorandum provides for “specific procedures to address the many variables that might arise on a unique and individual basis should the contracting out provisions be implemented with regard to any employee.” Item 73, p.3.