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Brian Levine, John Barnett, Arthur Breen, Gregory Brown, Patricia Chichester v. David A. Paterson

September 30, 2011

BRIAN LEVINE, JOHN BARNETT, ARTHUR BREEN, GREGORY BROWN, PATRICIA CHICHESTER,
CHRIS COVERT, SHELLEY DROSS, NANCY FERRANTE, ROBERT GODLEY, ANNETTE GRANT, CONSTANCE GRAVES, KATHRYN JAMISON, WILLIAM LIGHTBODY, MICKEY MASSIANO, WILLIAM MCCARTNEY, ANDREW NIVEN, DANIEL OSBORNE, MICHAEL RESNICK, ROSEMARY SAWYER, LINDA SHAW, THOMAS SLOAN, JOHN STELLAR, ROBIN TAYLOR, ANNETTE TOMBOLILLO, KIMBERLY VILE, SARAH WASHINGTON, ON BEHALF OF THEMSELVES AND ALL OTHER SIMILARLY SITUATED, AND THE ORGANIZATION OF NEW YORK STATE MANAGEMENT CONFIDENTIAL EMPLOYEES (OMCE) ON BEHALF OF ITS MEMBERS AND BY ITS EXECUTIVE DIRECTOR, JOSEPH SANO, PLAINTIFFS,
v.
DAVID A. PATERSON, INDIVIDUALLY AND AS GOVERNOR OF THE STATE OF NEW YORK, THOMAS P. DINAPOLI, INDIVIDUALLY AND AS COMPTROLLER OF THE STATE OF NEW YORK, ROBERT L. MEGNA, INDIVIDUALLY AND AS BUDGET DIRECTOR FOR THE DIVISION OF BUDGET, LAURA L. ANGLIN, INDIVIDUALLY AND AS THE FORMER BUDGET DIRECTOR FOR THE DIVISION OF BUDGET, NEW YORK STATE DIVISION OF BUDGET, OFFICE OF THE STATE COMPTROLLER, NEW YORK STATE DEPARTMENT OF AUDIT AND CONTROL, AND THE STATE OF NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge:

MEMORANDUM DECISION AND ORDER

I. BACKGROUND

This action is brought pursuant to 42 U.S.C. § 1983 and 1988 by twenty-six "Management and Confidential" ("M/C") employees of the State of New York, as well as the Organization of New York State Management Confidential Employees ("OMCE"), on behalf of its members, and OMCE's Executive Director, Joseph Sano. Plaintiffs allege their federal and state constitutional rights were violated by defendants' decision to "administratively withhold" general salary increases, performance advances, merit awards, and longevity payments (collectively

"compensation increases") in 2009 and 2010 that were provided for by law in Chapter 10 of the Laws of 2008, (the "PayBill"). Plaintiffs, who are prohibited from engaging in collective bargaining, allege that defendants' provision of compensation increases to unionized state workers, some of whom occupy the same jobs as plaintiffs, violates: the Equal Protection Clause of the Fourteenth Amendment; the Due Process Clause of the Fourteenth Amendment; Contracts

Clause of the United States Constitution; the New York State Constitution; and the New York State Civil Service Law. As a result of these alleged violations, plaintiffs seek declaratory relief, an award of retroactive and/or prospective payment of the withheld compensation increases, an award of attorneys' fees, and an award of costs.

Presently before the Court is defendants' motion to dismiss the amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiffs oppose defendants' motion.

II. AMENDED COMPLAINT

There are 26 individual plaintiffs in this case. They occupy the following 13 positions: Senior Budgeting Analyst; Supervising Parole Officer; Senior Personnel Administrator; Park Manager I; Traffic Maintenance Engineer 2; Treatment Team Leader; Secretary 2; Chief Psychologist; Law Department Investigator; Community Outreach Specialist 2; Organizational Developmental Specialist 3; Associate Attorney; and Nutrition Services Administrator 2. Plaintiffs claim they have union counterparts with identical job responsibilities. Each plaintiff attached an affidavit to the amended complaint stating that he or she is employed by the State of New York in a position designated Management and Confidential ("M/C" and that his or her job responsibilities are "substantially similar" to those of a similarly-titled position in a bargaining unit. For example, plaintiff Brian Levine states: "I am a Senior Budgeting Analyst, Grade 18 Competitive Class, employed by the State of New York and designated Management and Confidential." Levine avers that "[a]s a Senior Budgeting Analyst, Grade 18 my job responsibilities are substantially similar to those of the position of Senior Budgeting Analyst, SG-18, in the Professional, Scientific and Technical Negotiating Unit."

In January 2008, then Governor Eliot Spitzer signed the PayBill into law authorizing compensation increases to plaintiffs and unionized employees. The PayBill is comprised of two parts. Part A addresses "Collective Bargaining Agreement Between the State of New York and the Civil Service Employees Association, Inc. for 2007-2011". Part B addresses "Salaries and Benefits for Certain State Officers and Employees Excluded from Collective Negotiating Units for 2007-2011". According to the "Introducer's Memorandum in Support" of the Pay Bill, the purpose of Part B "is to provide the States's approximately 12,000 unrepresented employees who

are prohibited from collective negotiations . . . including managerial or confidential ('M/C') employees, with benefits and increases in compensation at levels that are comparable to the benefits and increases in compensation received by the employees represented by employee organizations." Compl. Ex. 36. The PayBill authorized longevity payments to certain M/Cs, an increase in basic annual salary for M/Cs as follows: three percent effective April 2, 2007; three percent effective April 1, 2008; three percent effective April 1, 2009; and four percent effective April 1, 2010. It also authorized performance advances, merit awards, and longevity payments.

According to the amended complaint, the PayBill authorized identical compensation increases for unionized employees.

Plaintiffs allege that on or about February 19, 2009, then Governor David Paterson granted pay increases, ranging from five to forty-six percent, to twelve M/C employees in the following positions: secretary; chief of staff; assistant counsel, confidential assistant; press aide; special office assistant; legal assistant; confidential secretary; confidential aide; and confidential stenographer. The amended complaint identifies the individual employees who received these raises; none of whom are alleged to occupy the same positions as plaintiffs.

On March 25, 2009, the Division of Budget authorized the M/C payroll actions necessary to implement the compensation increases provided for in the PayBill, which were scheduled to go into effect on April 1, 2009. However, on April 2, 2009, the Director of State Operations, Dennis Whalen, issued a memorandum stating that the 2009 compensation increases would be administratively withheld:

New York State is facing an unprecedented fiscal emergency, resulting in record budget deficits. We have asked you to administratively implement spending reduction actions, and we appreciate your continuing efforts to do so. We have continued to review our other available administrative options, including the salary increases and other payment actions for [M/C] employees.

As a result of our review, we will be withholding from M/C and other unrepresented employees the April 1, 2009 three percent general salary increases and the 2009-10 performance advances, merit awards, and longevity payments. In the context of taking this action, M/C and other unrepresented employees will be exempt from the layoff actions that were announced on March 24, 2009 whenever legally permissible in light of layoffs of unionized employees.

Our ability to withhold the salary increase and the other payments is pursuant to a provision of Chapter 10 of the Laws of 2008 that allows these forms of pay increases to be withheld when the Budget Director determines it is necessary "to reduce state expenditures to acceptable levels or when, in the opinion of the Director of the Budget, such increase is not warranted or is not appropriate."

This determination, like others announced recently regarding the State workforce, was not made lightly. We recognize the vital roles filled by our M/C staff and the hard work they provide to serve all our residents. However, these actions are necessary to reduce the State's financial obligations in the face of a severe fiscal situation.

Compl. Ex. 43.

According to the amended complaint, on or about April 1, 2009, the compensation increases were ...


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