v.

99-CV-0032C -- CLASS ACTION

STATE OF NEW YORK, et al
George E. Pataki, Governor

UNITED UNIVERSITY PROFESSIONS (UUP), et al
William E. Scheuerman, President

NEW YORK STATE UNITED TEACHERS (NYSUT) et al

Defendants
===============================

Plaintiffs are in receipt of the Defendants' Motions to Dismiss our Complaint, both mailed September 2, 1999, submitted by William D. Maldovan, Assistant Attorney General, State of New York (Defendant), and Ira Paul Rubtchinsky (for James R. Sandner), UUP/NYSUT (Defendant).

The Court's Order dated June 4, 1999 directed Defendants "to answer" by September 2, 1999. The only answer filed by the State of New York was a Notice of Motion with accompanying Affidavit (from Assistant Attorney General Maldovan), filed September 2, 1999 that "defendant State of New York shall move this Court on a date and time determined by the Court for an order pursuant to Rule 12 of the Federal Rules of Civil Procedure, dismissing the complaint in its entirety". The only answer filed by UUP/NYSUT on September 2, 1999 was a motion to dismiss under FRCP Rule 12(b) and 12(c), with accompanying Affidavit (from Senior Counsel for NYSUT Rubtchinsky for Sandner). UUP/NYSUT also filed a Brief, dated September 9, 1999 which was received by Plaintiffs on September 15, 1999. No motion for summary judgment under FRCP Rule 56(b) is before the Court as the State has not made such a motion, and the UUP/NYSUT Motion F.2. was conditional on the State making such a Rule 56(b) motion [see 39 of UUP/NYSUT Affidavit].

I. Plaintiffs oppose each and every part of the motion to dismiss which is nothing but a subterfuge to avoid Answers to the Complaint as Amended on May 6, 1999 and to prevent Plaintiffs from making a prima facie case for discrimination under ADEA, as well as EPA and ADA.

II. Plaintiffs request the Court to set dates for class certification and for discovery.

III. Plaintiffs oppose the UUP/NYSUT request for attorney fees and costs and/or for Rule 11 sanctions. UUP/NYSUT, a public employees union, has provided absolutely no justification.

Plaintiffs request oral argument.

UUP/NYSUT Affidavit for Motion to Dismiss

In reply to numbered sections of the UUP/NYSUT Affidavit for Motion to Dismiss:

Jurisdiction

5, 6, 11, 12, and 14. All Defendants were properly served in a timely fashion on or before May 14, 1999 and within 120 days of the filing of the Complaint with the Court. Affidavits of service were filed with the clerk of the court.

7. "Et al" is included to indicate possible agents for Defendants which would be known to Plaintiffs after discovery.

13 and 16. NYSUT business agent evaded service at the NYSUT/UUP Regional Office, according to the Sheriff of Erie County [Exhibit A].

8, 9, 10, 15 and 16. Exhibits "B" and "C" report UUP and NYSUT as "incorporated", not as unincorporated "membership association". Documentation for UUP and/or NYSUT being a membership association has not been provided with the Affidavit for the Motion to Dismiss. In any case, membership associations may be sued.

Class Action Status

17. The EEOC notice of "Right to Sue" was received on October 17, 1998.

19, 20, 21, 22. Plaintiffs deny the allegations, which are mere assertions without basis.

23. Plaintiffs deny the allegations and ask for class certification and discovery, and refer to response to 35, 37, and 38 below.

Procedural Requirements

24, 25, and 26. The EEOC charge number for this case is #16G-98-8498 [Exhibit E]. The State Division of Human Rights Charge Number is 7-E-A-98-7902293-A. SDHR verified the March 28, 1999 Complaint on July 2, 1998. Defendants are listed as "The State of New York and the United University Professions as aider and abettor", following on the Complaint as filed, and SDHR "placed it in its case load" [Exhibit D]. These two agencies have a "Worksharing Agreement" (Exhibit B of Amended Complaint). The "Right to Sue" letter is the same EEOC charge number #16G-98-8498 (Exhibit E of Amended Complaint).

27. Plaintiffs deny the allegation. EEOC procedures were fully complied with, and EEOC issued a "Right to Sue" letter.

Statute of Limitations

28-33. See Affidavit of Georgiana Jungels attached herein as Exhibit M.

Cause of Action

34. The Amended Complaint is page numbered.

35, 37, and 38. Plaintiffs deny the allegations. UUP and NYSUT have stated precisely the contrary position in other forums and it is completely disingenuous at best for its counsel to now claim that no UUP member has been harmed by discrimination, whether it be age discrimination, race/gender or other forms of discrimination:

i.) UUP President Bill Scheuerman, represented here by NYSUT counsel, wrote all members of UUP in October 1996, before the 1995-1999 Agreement was concluded:
"We haven't agreed to a new contract because the state demands that we give SUNY the authority to outsource any of our jobs to private companies and to the university's own internal corporations. If we agreed to this proposal, administrators would have virtually unlimited power to cut our salaries, reduce our benefits, and fire us at will. Current state law prohibits SUNY from taking such actions--unless we give up these legal protections contractually. That is exactly what the state's negotiators want us to do. And that is what we steadfastly refuse to do. Permanent and continuing appointment -- tenure -- would be meaningless in the face of such an agreement.

"To force us into giving up our tenure and other legal protections, the state has violated the law by taking away our dental and optical benefits...." [Exhibit G, bolding in original.]




ii.) The UUP Delegate Assembly twice passed resolutions opposing contracting out as egregious harm to UUP members by passing two resolutions at two separate assemblies, May 10-11, 1996, and May 9-10, 1997. [Paragraph 88 of Amended Complaint]




iii.) The same UUP President Bill Scheuerman wrote on June 22, 1994, to UUP SUNY-Buffalo Chapter President Paul Zarembka by email regarding "a possible law suit on the issue of pay equity" and saying that "UUP has wanted to do this for a very long time and we are discussing the possibilities with our attornies [sic]" [Exhibit I].




iv.) NYSUT Legal Director Bernard Ash was reported one day later by UUP President Bill Scheuerman to believe that "we must do a university wide suit and that we must first get a ruling, e.g. a right to sue statement, from Human Rights. We are checking the details but we are planning to proceed." [Exhibit J]




v.) The SUNY at Buffalo Chapter of UUP -- specifically Paul Zarembka, President, Lucinda Finley, Chair, Legal Aspects of Disparity Committee, Suzanne Hildenbrand, Chair, Unresolved Issues of Disparity Committee, and Bertha Laury, Chair, Affirmative Action Committee -- petitioned William E. Scheuerman, President, and Ed Alfonsin, Chair, Legal Defense Fund, UUP, on January 1, 1994, in a memo "Funding for Law Suit Against University" requested funding for suit against the SUNY at Buffalo to be "brought under federal civil rights laws and laws pertaining to equal pay and employment discrimination", noting also that "the chair of one of these committees is an expert in these areas of the law and have consulted with other attorneys as well" and that "these attorneys believe there is a strong likelihood of success" [Exhibit H].




vi.) A "Freedom of Information" report from Lawrence Kunin, General Counsel, State of New York, Executive Department, Division of Human Rights, dated June 20, 1996, provides statistics on the numerous individual cases filed against SUNY for alleged discrimination including age, gender, race, national origin, disability, and retaliation [Exhibit K].




vii.) UUP/NYSUT has failed to file against the State of New York for salary discrimination, notwithstanding the demonstrated salary disparities between the genders and based on race agreed to between the State of New York and UUP as a result of the 1985-1988 Agreement. State and UUP agreed to adjust base salaries on the March 24, 1993, but only for 25% of the calculated gap. According to an article in The Voice [UUP monthly publication to all members], March 1999, entitled "Gender equity remains a problem at SUNY", the UUP "Women's Rights and Concerns Committee [Vicki Janik, Chair] has made its No. 1 request to UUP negotiators that salary increases not be across the board because that only increases the disparity" [Exhibit P of Amended Complaint].




viii.) See also "FACTS" in Amended Complaint, paragraphs 45 through 307.

36. On September 29, 1999 Plaintiffs filed Motion to Amend the Complaint. The State did not object. UUP/NYSUT filed an Answer to which Plaintiffs filed a reply. Hearing took place on November 1, 1999. UUP/NYSUT failed to appear.

Treating the Motion as One for Summary Judgment

39. Irrelevant. State of New York has not moved for Summary Judgment for this case.

Application under FRCP Rule 12(e) and (f)

40, 41, and 42. Plaintiffs deny the allegations in 40(A) and 40(B), in 41, and in 42 and note the material issues of FACTS are plainly and simply worded in paragraphs 45 through 307 in the Amended Complaint, and are to be addressed in discovery and trial.

s 43. See response to 35, 37 and 38 above.

State Affidavit for Motion to Dismiss

In reply to numbered sections of the State Affidavit for Motion to Dismiss:

2. This Attorney Affidavit is based upon "conversations and correspondence with representatives of the State of New York, State University of New York and defendants United University Professions" and Plaintiffs individually and on behalf of all others similarly situated, request discovery. Plaintiffs deny the allegation and are unaware what "other grounds" may refer to. See response above to 35, 37 and 38 of UUP/NYSUT Affidavit.

3. The Complaint "as amended" was served on the Buffalo Regional Office of Attorney General on May 10, 1999.

5. Defendant is incorrect and inappropriately collapses Plaintiffs' Claims. Claims 1, 3 and 7 are ADEA claims while Claim 2 is a constitutional claim, Claim 4 is an EPA claim, Claims 5 and 8 have several claims, and Claim 6 is an ADA claim.

6. Plaintiffs are representatives of a class, specifically, State University of New York professional employees with individually-negotiated appointments (contracts) under the Polices of the Board of Trustees and seek class certification for both union members and non-union members.

7. Plaintiffs deny this specious allegation.

8. See Affidavit of Georgiana Jungels attached herein as Exhibit M.

9. See response above to 35, 37 and 38 of UUP/NYSUT Affidavit. In other words, the State's bold assertion that there has not been any violation of ADEA, EPA, ADA, and/or constitutional protections which could be addressed by this Complaint is contradicted by positions, press statements, and actions by the other Defendant UUP/NYSUT which speaks volumes to discrimination practiced by the State. To thus argue that there is no need for discovery, let alone trial, and present a motion to dismiss flies in the face of available evidence.

10 and 11. Plaintiffs deny the allegations which are so vague as to be a mere boilerplate language. Furthermore, response to 5 above outlines that age discrimination is by no means the only claim made in the Complaint. Additionally, State implies that Article 36 Contracting Out is benign, in contrast to the Eighth Claim of the Amended Complaint; far from being benign, its inclusion in the Agreement was quite contentious [see Exhibit G]. If Article 36 is benign, Prayer for Relief 7 and 8 of the Amended Complaint can be granted by the Court.

12 and 13. The language of contracting out breaks prior employment contracts for those with tenure/permanent appointment, the vast majority of whom are over age forty. Upon information and belief, constructive discharge is taking place. The allegation is, in any case, a matter for discovery.

14. See response above to 35, 37 and 38 of UUP/NYSUT Affidavit.

FOR ALL OF THE REASONS SET OUT ABOVE, Plaintiffs, individually and on behalf of all others similarly situated, respectfully request the Court:

A. Deny in totality both Motions to Dismiss;

B. Order the Defendants to Answer the Complaint as Amended within twenty (20) days;

C. Set dates for a hearing for class certification;

D. Set dates for discovery;

E. Deny UUP/NYSUT request for "costs and disbursements of this proceeding" and "imposing sanctions" as intimidation of union members exercising their contractual rights under Article 10.4 of the 1995-1999 and 1999-2003 Agreements which provide 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, of this Agreement." [Exhibit L]. Furthermore, neither ADEA, nor EPA, nor the Fair Labor Standards Act provide for Defendants to receive attorney fees and costs from Plaintiffs should Defendants prevail. The State of New York has not made such request in its motion papers.

Dated: November 10, 1999.

__________________________________________________

Paul Zarembka, pro se, and Georgiana Jungels, pro se
Phones 716-875-1698 and 716-877-4161
P.O. Box 1077
Buffalo, New York 14213-7077

LIST OF EXHIBITS

A. Sheriff of Erie County

B. "What's in a Name?", UUP, Inc.

C. Internet NonProfit Center--NonProfit Locater Results for

1. United University Professions, and
2. New York State United Teachers

D. Letter from State of New York, Executive Department, Division of Human Rights, dated July 2, 1998 Re:

"Georgiana Jungels and Paul Zarembka, individually and on behalf of all academic and all professional employees over the age of forty

vs.
TheState of New York and the United University Professions as aider an abettor."

E. "Notice" from U.S. Equal Employment Opportunity Commission, New York District Office, dated July 8, 1998.

F. Letter to William E. Scheuerman, President, UUP, from Georgiana Jungels and Paul Zarembka, dated December 5, 1998.

G. "Dear Colleague" letter from William E. Scheuerman, President, UUP, dated October 1996.

H. Letter Re: "Funding for Law Suit Against University" to William E. Scheuerman, President, UUP, from UUP SUNY/Buffalo Chapter, Paul Zarembka, President, Lucinda Finley, Chair, Legal Aspects of Disparity Committee, Suzanne Hildenbrand, Chair, Unresolved Issues of Disparity Committee, and Bertha Laury, Chair, Affirmative Action Committee, dated January 1, 1994.

I. E-mail correspondence from Bill Scheuerman to Paul [Zarembka], dated June 22, 1994.

J. E-mail correspondence from Bill Scheuerman to Paul [Zarembka], dated June 23, 1994.

K. Letter from Lawrence Kunin, General Counsel, State of New York, Executive Department, Division of Human Rights, New York, NY, to Trisha Sandberg Ph.D., dated June 20, 1996.

L. Article 10, No Discrimination, 1995-1999 Agreement between the State of New York and United University Professions.

M. Affidavit of Georgiana Jungels.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
===============================
Paul Zarembka and Georgiana Jungels, individually and on behalf
of all academic and all professional employees with State University
of New York employee contract(s) who are now, or will be forty (40)
years of age or older while the State/UUP 1995-1999 Agreement is "in effect"

Plaintiffs,

MEMORANDUM OF LAW

v.

99-CV-0032C -- CLASS ACTION

STATE OF NEW YORK, et al
George E. Pataki, Governor

UNITED UNIVERSITY PROFESSIONS (UUP), et al
William E. Scheuerman, President

NEW YORK STATE UNITED TEACHERS (NYSUT) et al

Defendants
===============================

Plaintiffs have consulted with at least nine attorneys licensed to practice in New York State, including SUNY faculty and labor-law specialists. Plaintiffs provide this Memorandum of Law in opposition to Defendants' motions to dismiss. All references to Exhibit of "Answering Affidavit" refer to Exhibits for "Answering Affidavit to Defendants' Motion to Dismiss", dated November 10, 1999.

A. By contractual, State-UUP Agreement, Plaintiffs are barred from filing grievance over claims of discrimination either by the State or by UUP and are directed to State and Federal anti-discrimination procedures [Paragraph 18 of Amended Complaint].

B. UUP is on record asserting that the State of New York practices employment discrimination of bargaining-unit members, both with respect to individuals and classes [see "answering affidavit" to 35, 37 and 38]. Unions are particularly well-positioned to litigate on behalf of their members and case law recognizes union rights to so litigate. To wit,

i.) Unions have the right to be plaintiffs in employment discrimination cases on behalf of its members and have the necessary resources. See, for example, Hutcheson v. Tennessee Valley Authority, 604 F.Supp. 543 (M.D. Tenn. 1985); I.U. of E. Radio & Mach. Wkrs v. Westinghouse, 73 F.R.D. 57 (W.D.N.Y. 1976); Social Services Union, Local 535 v. City of Santa Clara, 609 F.2d 944 (9th Cir. 1979); International Woodworkers v. Georgia- Pacific Corp., 568 F.2d 64 (8th Cir. 1977); International Woodworkers v. Chesapeake Plywood, 659 F.2d 1259 (4th Cir. 1981).




ii.) Union have the right to be plaintiffs in employment discrimination cases on behalf of its members even in cases where discrimination results from a collective-bargained article or articles. In Hutcheson v. TVA, ibid., the court precisely rejected that a union gives away rights to sue for discrimination when the discriminatory act results from a collective- bargaining agreement the union had signed; "in the instant case the plaintiffs seek not to attack the validity of the 1981 Agreement, but rather seek to eradicate the discriminatory effects allegedly created by certain portions of that agreement" at 551.




iii) The Taylor Law requires public employee unions to represent both members and non-members. The duty to fairly represent both members and non-members is enforceable under Section 209-a of the Civil Service Law by PERB, as well as in court (underlining for emphasis). Plaintiffs, individually and on behalf of all others similarly situated (class), were forced to go to court, pro se, because their union (UUP-NYSUT) failed to fairly represent members and non-members.




iv) The United University Professions was offered the opportunity on December 5, 1998 to be a Plaintiff in a class-action lawsuit for discrimination following upon the EEOC "Right to Sue" for this case and before the Complaint was filed on January 14, 1999 [Exhibit E of "Answering Affidavit"]. Many UUP members solicited their President to so protect them (copies available under discovery). UUP, however, failed to act. In neither its Affidavit nor Brief does UUP/NYSUT claim that the State of New York does not discriminate in employment. Discovery will show that UUP/NYSUT has very substantial evidence that the State of New York and its agent SUNY does discriminate in employment.

i.) It is well-established under McDonnell Douglas Corp. v. Green, 411 U.S. 802 (1973) and Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985) that Plaintiffs must establish a prima facie case for age discrimination by a preponderance of evidence. The Court of Appeals for the Second Circuit in Auerbach v. Bd of Ed, H.C.S.D., 136 F.3d 104 (2d Cir. 1998), stated that it has "repeatedly held that the burden on the plaintiff to make out a prima facie case of age discrimination is de minimis" at 109-110. The Court reversed district court in this case and ruled that "in light of the minimal burden to be met, plaintiffs established a prima facie case of age discrimination under the ADEA and the district court's contrary conclusion is error" at 110. The same Court in Scaria v. Rubin, 117 F.3d 652 (2d Cir. 1997) noted "the burden of establishing a prima facie case is not onerous, and has been frequently described as minimal" at 654. The Court in Criley v. Delta Air Lines, Inc., 119 F.3d 102 (2d Cir. 1997) -- while agreeing "with the core of the district court's holding that plaintiffs have produced insufficient evidence to give rise to a material issue of fact regarding age discrimination" at 106 -- noted that the district court's ruling granting summary judgment to defendants came "after two years of discovery", at 103, and therefore not before discovery (as Defendants are now requesting).




ii.) For this Complaint motions to dismiss are being made without even Answers to the Complaint being provided.




iii.) UUP has already admitted that contracting out breaks tenure and permanent appointment, and both UUP and NYSUT have already recognized the State of New York as a discriminating employer [see "Answering Affidavit" to 35, 37 and 38]. Plaintiffs have evidence they are prepared to produce in discovery that about ninety-two percent (91.9%) of those with tenure/permanent appointment on one large university campus were aged forty or over. [Paragraph 71 of Amended Complaint]. The State, UUP/NYSUT, and Plaintiffs already have evidence of salary discrimination within the SUNY system [paragraphs 220-222, 225-226, and 229-231 of the Amended Complaint]. Discovery would establish the prima facie case of discrimination in the SUNY system.

E. There are material issues of FACTS, represented by paragraphs 45 through 307 in the Amended Complaint, and no persons with personal knowledge from the State and UUP/NYSUT have submitted affidavits rebutting the FACTS submitted under oath by the Plaintiffs. Plaintiffs note that "Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading" FRCP 8(d).

F. Under New York Law (Israel v. Wood Dolson Co., 1 N.Y. 2d 116, 120 151 N.Y.S. 2d 1, 5 (1956); Kaminski v. United Parcel Serv., 120 A.D.2d 409, 412, 501 N.Y.S.2d 871, 873 (1st Dept 1986), the elements of a tortious interference claim are (a) that a valid contract exists; (b) that a third party had knowledge of the contract; (c) that the third party intentionally and improperly procured the breach of the contract; (d) that the breach resulted in damage to Plaintiffs, individually and on behalf of all other similarly situated (class).

Plaintiffs assert that (a) each and every State University professional with tenure/permanent has an individual and valid life-time contract; (b) that UUP-NYSUT is a third party with knowledge of individual contracts; (c) that UUP-NYSUT intentionally and improperly entered into an agreement with our employer (State of New York) breaching our individual contracts and property rights (tenure/permanent appointment); (d) that Article 36 (Contracting-Out) termination procedures (MOU) damaged the plaintiffs individually, and the class of employees with individual life-time contracts. [See Amended Complaint, for example, 47, 48, 55, 61-63, 67, 68, 80-85, 96, 104, 140, 173, 190-193, 203, 206, 212, 237].

REPLY TO "BRIEF" OF UUP/NYSUT

Plaintiffs offer the following memorandum of law in reply to "Brief" of UUP/NYSUT.

Preliminary Statement

The Complaint and the Complaint as Amended state that the Agreement violates the rights of individual Plaintiffs as well as the members of the class of "all academic and all professional employees with State University of New York employee contract(s) who are now, or will be forty (40) years of age or older while the Agreement is 'in effect' ". Our motion to amend would add to the Amended Complaint the same relevant Articles of the 1999-2003 Agreement as for the 1995-1999 Agreement.

Jurisdictional Issues

A.

1, 2, and 6. UUP and NYSUT was and/or is incorporated, according to UUP documents [Exhibit B of "Answering Affidavit"]. According to IRS information of March 5-7, 1999 obtained from the internet, the United University Professions has a Federal Employer ID Number of 141537599 with an "Organization Code" of "1" meaning "Corporation"; NYSUT has a Federal Employer ID Number of 141584772 with the same "Organization Code" of "1" meaning "Corporation" [Exhibit C of "Answering Affidavit"]. Plaintiffs are prepared to modify our Complaint as appropriate should documentation be provided that UUP and/or NYSUT were unincorporated on the date of our filing, January 14, 1999. Should the Court accept UUP and/or NYSUT as an unincorporated membership association labor union, Plaintiffs note:

i.) FRCP 17(b) provides that when a claim arises under federal law, an unincorporated association may sue or be used: "The capacity of an individual, other than one acting in a representative capacity, to sue or be sued shall be determined by the law of the individual's domicile. The capacity of a corporation to sue or be sued shall be determined by the law under which it was organized. In all other cases capacity to sue or be sued shall be determined by the law of the state in which the district court is held, except (1) that a partnership or other unincorporated association, which has no such capacity by the law of such state, may sue or be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States...." (italics added). See also Modeste v. Local 1199, Drug, Hosp. and Health Care Employees Union, RWDSU, AFL-CIO, 850 F.Supp. 1156 at 1164 (S.D.N.Y. 1994).




ii.) Service is proper under New York law for a variety of labor union officers and business agent: CLS General Association Law Section 13 provides that service of summons, subpoena, or other legal process upon a labor organization may be made upon the association's president, vice-president, treasurer, assistant treasurer, secretary, assistant secretary, or business agent in their capacity as such.

a. William E. Scheuerman is president of UUP (as well as a Director of NYSUT and a Vice-President of AFT). IF UUP is an unincorporated labor association, failure to designate the president in representative capacity is an irregularity which is not a jurisdictional error and may be corrected. "Although the plaintiff has brought suit against the defendant using its proper name and has failed to name either the defendant's president or treasurer, in his or her representative capacity, as a party to this action, as is required by General Associations Law paragraph 13, this error is not jurisdictional and can be corrected" Montalvo v. Bakery and Confectionery Workers Intern. Union of America Local No. 3, AFL-CIO, 1988, 137 A.D. 2d 506 at 508, 524 N.Y.S. 2d 249 at 250-250; also United Mineral & Chemical Corp v. United Mechanics' Union, Local 150 F of Amalgamated Meat Cutters and Butcher Workmen of North America, 1964, 43 Misc.2d 877, 252 N.Y.S.2d 581 (service on "business agent" of a labor organization).

b. Ron Uba is a business agent for NYSUT as regional director and attempted to evade service, according to the Sheriff of Erie County [Exhibit A of "Answering Affidavit"].

3 and 5. The Complaint was filed with the court on January 14, 1999 within 90 days of the October 17, 1998 receipt of the "Right to Sue" from the EEOC. All Defendants were properly served with the Complaint as Amended in a timely fashion on or before May 14, 1999 i.e., within 120 days of filing.

4. See "Answering Affidavit" to 7.

7. See Affidavit of Georgiana Jungels attached herein as Exhibit M.

8. Under Promisel v. First American Artificial Flowers, Inc., 943 F.2d 250 (2d Cir. 1991), Court ruled that "plaintiff who wishes to bring a discrimination claim under the ADEA must first file with the EEOC. In states such as New York which have their own agencies to investigate and obtain relief for discriminatory practices, however, the EEOC refers all such complaints to that state agency. This is because under [29 U.S.C.] paragraph 633(b), a plaintiff in such a state may not bring suit under ADEA until sixty days after the plaintiff has commenced proceedings with the state agency handling discrimination cases....Sixty days after filing with the state agency, a plaintiff may bring a federal claim....The Section [paragraph 633(a) stays, but does not dismiss, the state action during the pendency of the federal court" at 255.

The EEOC charge number for this case is #16G-98-8498, the State Division of Human Rights Charge Number 7-E-A-98-7902293-A [Exhibit E of "Answering Affidavit"] and the two agencies have a "Worksharing Agreement" [Exhibit B of Amended Complaint]. SDHR verified the March 28, 1998 Complaint on July 2, 1998 and listed as Defendants: "The State of New York and the United University Professions as aider and abettor", following on the Complaint as filed, and placed it in its case load [Exhibit D of "Answering Affidavit"]. The "Right to Sue" letter, received October 17, 1998 is the same EEOC charge number #16G-98-8498 [Exhibit E of Amended Complaint] and followed our request for a "Right to Sue", dated September 26, 1998. Title 42 U.S.C. section 2000e-5(f)(1)[4th sentence](A) reads "within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved" and was fully compiled with. Notice was received on October 17, 1998 and the Complaint was filed on January 14, 1999 [Exhibit E of Amended Complaint].

9. The Complaint "is brought by the Plaintiffs as individuals and as representatives of a protected class" [paragraph 1 of Amended Complaint]. Plaintiffs do not seek to "represent" a protected class in the sense of "counsel", but rather be "representatives" of the protected class. EEOC's "Right to Sue" letter for this case is fully consistent with Title 42 U.S.C. section 2000e-5(f)(1) which, in no way, restricts EEOC from designating Plaintiffs as representatives of a class. Determination of the class is, in any case, a prerogative of the district court. Neither Paul Zarembka nor Georgiana Jungels are "attempting to act as an attorney on behalf of such other individuals" and therefore neither of them are in violation of the "New York Judiciary Law".

10. See Affidavit of Georgiana Jungels attached herein as Exhibit M.

11. UUP/NYSUT cites Cargill, Inc. v. Charles Kowsky Resources, Inc., 949 F.2d 51, 56 (2d Cir. 1991) seemingly to substantiate a motion to dismiss when there is "no case or controversy for the Court to determine". Relevance of Cargill is vague, in any case, but the motion in question for Cargill was "summary judgment", not a motion to dismiss. Furthermore, In this case, employment contracts for tenure/permanent appointment have already been broken. Furthermore, UUP and NYSUT have asserted that the State of New York and its agent SUNY discriminate in employment [see "Answering" Affidavit to 35, 37 and 38].

B.

It is specious to claim that Plaintiffs "do not like Article 36 of the 1995-1999 Collective Bargaining Agreement". What Plaintiffs personally like or do not like is irrelevant. Plaintiffs filed a lawsuit regarding violations of the civil rights laws of the United States.

Regarding amending the proceedings to include the 1999-2003 Agreement, Plaintiffs filed on September 29, 1999 the appropriate Motion to Amend consistent with FRCP Rule 15. The State did not object. UUP/NYSUT filed an Answer to which Plaintiffs filed a reply. Hearing took place on November 1, 1999. UUP/NYSUT failed to appear.

Plaintiffs have been adversely affected -- see "Answering Affidavit" to 35, 37 and 38.

Conclusion

ADEA and EPA do not provide for costs, disbursements and relief to Defendants. ADEA and EPA reference the Fair Labor Standards Act. The Fair Labor Standards Act provides only for attorney fees and costs to Plaintiffs, but omits provision for Defendants to recover fees and costs -- "The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action." (29 U.S.C. Sec. 216 (b).)

REPLY TO "BRIEF" OF STATE

The State of New York provided no brief nor memorandum of law for its motion to dismiss to which Plaintiffs need respond.

Dated: November 10, 1999.

__________________________________________________

Paul Zarembka, pro se, and Georgiana Jungels, pro se
Phones 716-875-1698 and 716-877-4161
P.O. Box 1077
Buffalo, New York 14216-7077