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Roberts v. Markey

March 27, 2006


The opinion of the court was delivered by: Denise Cote, District Judge


This action presents a small snapshot of a bitter, protracted struggle for control of New York's largest municipal union, a struggle that has brought several of the parties before this Court in numerous actions. Plaintiffs Lillian Roberts and Maf Misbah Uddin are the Executive Director and Treasurer, respectively, of District Council 37 ("DC 37"), American Federation of State, County and Municipal Employees ("AFSCME"), which represents over 115,000 workers. The seventeen defendants are vice presidents and members of the Executive Board (the "Board") of DC 37.*fn1 On February 11, 2004, at the first Board meeting following a hotly contested election for control of the union, the Board voted to cut significantly the salaries of both plaintiffs. The motion to reduce the salaries passed seventeen to eight; all of the Board members who voted in its favor, including several women and African-Americans, are named as defendants in this action.

Relying almost exclusively on evidence of bias by one defendant, plaintiffs claim the Board action represented discrimination and filed this action under 42 U.S.C. § 1981, and New York State and City antidiscrimination statutes. Defendants moved for summary judgment on all counts. Because the plaintiffs have not shown that the bias of one Board member caused the Board to reduce the plaintiffs' salaries, that motion is granted.


The following facts are either undisputed or taken in the light most reasonable to the plaintiffs, unless otherwise noted.*fn2 Roberts was first elected Executive Director in February 2002 at age 74. She was DC 37's fourth Executive Director and the first woman to hold this position. The Board set her salary at $250,000 a year. This matched the salary of the previous Executive Director, a black male who resigned in 1998. (Between 1998 and 2002, the executive directorship was vacant and DC37 was run by an administrator appointed by its parent union.) The salary of the treasurer at that time, Mark Rosenthal, was $180,000.

In her first years in office, Roberts had a difficult relationship with some prominent members of the union, including Mr. Rosenthal, who Roberts believes attempted to undermine her authority. Some of the tension apparently dates back to December 2002, when the Ethical Practices Officer of DC37 found that Roberts had likely violated the Ethical Practices Code of DC37 by hiring her nephew's law firm to represent the union's Benefit Trust Fund, of which Roberts was a trustee. This finding was adopted by the Ethical Practices Committee of DC37, and on its recommendation, the Board voted to terminate the union's contract with the firm in April 2003.*fn3

In July 2003, Charles Ensley, the President of one of DC37's larger locals, announced that he would be running against Roberts in the election scheduled for January 2004. This was to be the first contested election in the union's history.

Roberts ran for re-election on the Members First Slate. Co-plaintiff Uddin ran for Treasurer on this slate. Ensley and then-treasurer Rosenthal ran on the Unity Slate. Under the DC37 Constitution, the Executive Officers (which include the Executive Director and the Treasurer) and the Vice Presidents, who together make up the Board, are elected by delegates from the locals. Among the fliers sent out to the delegates to promote the candidates, one received special attention from members of the Unity slate. This flyer, which Uddin denies sending himself but was sent to support his candidacy, makes a special issue of Rosenthal's salary. Large type on the flyer reads "While Rosenthal Goes to the Bank . . . Poor Single Mothers Pay the Price," and smaller type states that Rosenthal "pulls in the big bucks: over $1/4 Million a year."

Roberts and Uddin won their races; both were elected to three-year terms. The Unity Slate proved more successful in the vice presidential races, winning a majority of seats on the Board.

In February 2004, the new Executive Board met for the first time. At that meeting, the Board passed a resolution to cut Roberts's salary by $75,000 (from $250,000 to $175,000) and Uddin's by $40,000 (from $180,000 to $140,000). The prefatory language of the resolution justified the measure as follows: "[T]he salaries of the Treasurer and the Executive Director are out of line with those paid to other major New York City labor leaders and do not reflect the general wage level of the DC 37 membership."

The resolution was subject to less discussion at the Board Meeting than might have been expected. As reflected in the minutes of the meeting, defendant Bahnken cited press accounts of labor salaries as he introduced the motion to cut the salaries. There were some objections that such a motion should be brought in a budget meeting and a comment that both salaries could have been cut some years before when Roberts first assumed the office. Defendant Bahnken replied that he wasn't at the meeting where the salary was first set and that he "came up with a number [he] thought was fair and in line with what the earnings are of what our members make." Bahnken also conveyed his understanding that DC 37 was $1.6 million in debt.

Defendant Emanuelson, who was new to the Executive Board, pointed to the focus in the recent election on the previous treasurer's salary and that he had been accused of "laughing his way to the bank." Emanuelson further explained that the Executive Director's salary was "way out of line" when "we looked at what other Executive Directors make." Defendant Markey similarly referred to "a sack full of literature from the new Treasurer of District Council 37 [Uddin] making all sorts of comments over and over and over again about the previous Treasurer's salary." Markey further stated that he had expected Uddin to make the motion to reduce his salary himself after having campaigned on the issue, and implied that he had urged his fellow Board members to delay in bringing the motion in case Uddin did so. The motion passed seventeen to eight.

As Markey's last comment suggests (and as at least two of the dissenting Board members pointed out), defendants' decision to reduce plaintiffs' salaries appears to actually have been made before the Board meeting. Shortly after the election, but before the Board meeting, several of the defendants met with other members of the Unity slate to discuss various issues relating to the recent election. The evidence is unclear as to exactly when and where the meeting occurred, how many people were present, and even how many of those meetings took place. The only evidence offered relating to these meetings derives from defendants' depositions, offered by plaintiffs in opposition to this motion. Sbar admitted to being at the meeting, but DeMartino stated in his deposition that he didn't recall Sbar saying anything. Moore recalled that Markey brought up the subject and specifically mentioned the participation of at least four others, including two defendants (herself and Hysyk) in the conversation. Plaintiffs have pointed to no evidence in their statement of facts or brief that would impeach these assertions.

In their depositions, the defendants recalled various reasons for the cuts that were discussed at the meeting, as well as their own motivations for supporting the measure. Two reasons featured most prominently. First, the defendants expressed a shared view that the Executive Director's salary was excessive, either in absolute terms or relative to that of other labor leaders. Second, the defendants drew a connection between the campaign literature focusing on Rosenthal's salary and the cuts they later proposed and approved. Some explained the connection in terms of fairness, explaining that plaintiffs had made an issue of the previous salaries being too high and now should be required to live by their words; others felt that the campaign literature was anti-Semitic and that plaintiffs should be punished for pandering to the prejudices of voters. Other justifications invoked for the cuts included a perception that Roberts had not been doing a good job as Executive Director, a desire for political retaliation, and in the case of the Treasurer's salary, a need to keep the salaries proportionate. Some defendants, however, professed that Roberts's performance and political motives ...

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