FULL TEXT OF LAWSUIT as Amended May 6, 1999, except attachments.
---Please note that the lawsuit was later, further amended on April 30, 2001 by the law firm of Chiacchia & Fleming, LLP, representing the class, and is available from the home page by clicking on the title above.---

COMPLAINT AGAINST STATE OF NEW YORK, UNITED UNIVERSITY PROFESSIONS, and NEW YORK STATE UNITED TEACHERS

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,
            v.

99-CV-0032C(H)

AMENDED COMPLAINT

Civil Action

Trial by Jury Demanded

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



COMPLAINT

Plaintiffs, Paul Zarembka and Georgiana Jungels, individually and on behalf of all academic and all professional employees with permanent State of New York employee contract(s) or term contracts on permanent State lines, who are forty (40) years of age or older, for their Complaint against the Defendants, herein allege:


PRELIMINARY STATEMENT

1. This action is brought by the Plaintiffs as individuals and as representatives of a protected class pursuant to 29 U.S.C. Section 621 et seq, the Age Discrimination in Employment Act (hereinafter "ADEA"), as amended, and the The Older Workers Benefit Protection Act of 1990 (hereinafter "OWBPA") and The Equal Pay Act (hereinafter "EPA"), and the United States Constitution (hereinafter "U. S. CONSTITUTION") and the State of New York Constitution (hereinafter "NYS CONSTITUTION") and any other Federal law(s) and State law(s) the Court may identify in the interest of justice.


THE PARTIES

2. Plaintiffs, Paul Zarembka and Georgiana Jungels, are State employees with individual permanent continuing appointment contracts, under the SUNY POLICIES, and they represent all academic employees and all State University professional employees, who are now forty (40) years of age, or older or will be forty (40) plus years of age during any time there is any STATE and UUP Agreement to contract-out/terminate any State University professional employees with appointment contracts under the Policies of the Board of Trustees (hereinafter the "Plaintiffs").

3. At all times pertinent, Plaintiffs employer under the ADEA is the STATE OF NEW YORK (Defendant).

4. At all times pertinent, Plaintiffs union under the ADEA is the UNITED UNIVERSITY PROFESSIONS (Defendant).

5. At all times pertinent, United University Professions (UUP) was the union designated as Local 2190 of the American Federation of Teachers (AFL-CIO) and affiliated with the New York State United Teachers (NYSUT).

6. At all times pertinent, the parties to the "Agreement", signed on or about September 30, 1997, are the Executive Branch of the State of New York ("State") and United University Professions ("UUP").

7. At all times pertinent, George E. Pataki, was the Governor of the State of New York and the employer of all State University employees.

8. At all times pertinent hereto, William E. Scheuerman was the President of the United University Professions (UUP) and responsible for protecting any/all the constitutional rights of State University employee(s) serving in positions in the State University Professional Services Negotiating Unit ("PSNU").

9. At all times pertinent hereto, the representatives of the State and UUP who signed the agreement, on September 30, 1997, are: 1) for State Governor: Linda Angello, Michael P. Rowan, Allen C. DeMarco, Walter J. Pellegrini; and 2) for United University Professions: William E. Scheuerman, Thomas E. Matthews, Anthony D. Wildman, Tina B. Kaplan.

10. At all times pertinent hereto, the members of the negotiating team for the 1995-1999 Agreement, signed on September 30, 1997 by the State of New York (defendant), acted as agent(s) of the State of New York and the State Governor (George E. Pataki) and were the following specific named individual(s): Rebecca L. Caudle, Gail Curley, John M. Cummings, Christine M. Fitzpatrick, Dona Frescatore, Raymond L. Haines, Jr., Lewis Rosenthal, Joyce Haple Villa, and Phyllis A. Volpe.

11. At all times pertinent hereto, the members of the negotiating team for the 1995-1999 Agreement, signed on September 30, 1997 by the United University Professions (defendant), acted as agent(s) of the United University Professions (UUP) and its President (William E. Scheuerman) and were the following specific named individual(s): Edward J. Alfonsin, Lorna Arrington, Caroline B. Bailey, Peter B. Kane, David H. Kreh, Paul D. Martin, Fayez Samuel, Michael Silverberg, Michael Smiles, and Judith Wishnia and Thomas E. Matthews (UUP Chief Negotiator).


JURISDICTION AND VENUE

12. Plaintiffs raise Federal questions and file this lawsuit under 29 U.S.C. 621, et seq, as amended, the United States Constitution, as amended, the Equal Pay Act (EPA) and any/all other Federal laws prohibiting illegal age discrimination, unequal treatment and any denial of due process rights.

13. Jurisdiction is conferred on the Court by the ADEA (1967) as amended, the Equal Pay Act (EPA), and the U.S. Constitution, as amended.

14. The U. S. District Court (WDNY) has jurisdiction over ADEA age discrimination complaints filed by employees of the State of New York who are forty (40) years of age or older.

15. At all times pertinent hereto, the Plaintiffs and the Defendants had offices in the State of New York, County of Erie, City of Buffalo, and other locations within the Western New York District of the U. S. District Court (USDC/WDNY).

16. Venue is proper in this court because the individual Plaintiffs, individually and as representatives of all others similarly situated, reside in this court district.


CONDITIONS PRECEDENT

17. The State of New York has policies prohibiting discrimination and the State (defendant) and the United University Professions (defendant) have long-standing mutual agreements that include "No Discrimination"; Article 10 of the 1995-99 Agreement prohibits all forms of discrimination, including but not limited to discrimination with regard to age, specifically:

18. On or about September 30, 1997, the State and UUP continued long-standing 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 State and UUP 1995-1999 Agreement).

19. On or about December 15, 1997, individual Plaintiffs learned their employer, the STATE OF NEW YORK ("State") and union ("UUP") agreed, on or about September 30, 1997, to contract out (Article 36) some employees (affected) and retain other employees (unaffected) with term or permanent-continuing appointment contracts.

20. On or about September 30, 1997, the majority of professional employees with permanent-continuing or term pointment contracts were forty (40) years of age or older.

21. Within 180 days (March 28, 1998), Plaintiffs filed a complaint with the U. S. Equal Employment Opportunity Commission (EEOC) claiming the above agreement (#19) discriminated against State employees in the University who were professional employees and forty (40) years of age or older.

22. Plaintiffs age discrimination complaint, dated and filed March 28, 1998, was filed by U.S.P.O. Certified Mail (P 088 082 447) and EEOC onfirmed receipt on March 30, 1998, copies attached herein as Exhibit A.

23. As advised, Plaintiffs age discrimination complaint was copied to the Commission's FEPA agency in New York State (the New York State Executive Department Division of Human Rights).

24. Under the EEOC Worksharing Agreement in New York State, EEOC has jurisdiction over age discrimination complaints against the State (Defendant) under the ADEA and a copy of this agreement, in effect at all times pertinent to the Plaintiffs Complaint, is attached herein as Exhibit B.

25. Plaintiffs' action under the ADEA supersedes any State action; SEC. 633 [Section 14] of the ADEA specifically states:

26. On May 26, 1998, the State (Defendant) through its Executive Department representative (DHR Regional Director William P. Marks), in Buffalo, NY, improperly advised the individually named plaintiff(s) to file new individual discrimination complaints, under the Human Rights Law of the State of New York administered by the State Executive Department, as a subterfuge for transferring jurisdiction of Plaintiffs'; claim under ADEA from the EEOC to the State and terminating Plaintiffs rights under ADEA.

27. Plaintiff(s) did not file new individual discrimination charges, on or about May 26, 1998, and Plaintiffs have never waived right(s) under any Federal laws, including but not limited to the ADEA, the OWBPA and the U. S. Constitution.

28. On May 26, 1998, Plaintiffs, individually and on behalf of all others similarly situated, certified, nunc pro tunc, their age discrimination complaint filed on March 28, 1998 and reserved any/all right(s), including the right to amend that age discrimination complaint "in any manner under any/all State and Federal laws" (Exhibit C).

29. Based on information and belief that the State (defendant) was improperly interferring with the EEOC investigation of Plaintiffs' specific March 28, 1998 age discrimination complaint and attempting to engage the Plaintiffs, as State employees and/or as union members, in ex parte actions without notice to the other party (UUP), the individually named Plaintiff(s) consulted legal expert(s) and, on September 17, 1998 , Plaintiff(s) amended their original age discrimination complaint, filed on March 28, 1998 under the ADEA, to include a charge of "deliberate interference and harassment" by agents (Executive Branch) of employer (State of New York Governor).

30. Plaintiffs amended complaint, dated September 17, 1998, was filed by U.S.P.O. Registered Mail (R 240 269179); the U.S. Postal Service and EEOC confirmed receipt of the individually named Plaintiffs amended complaint on September 18, 1998, copy attached herein as Exhibit D.

31. On September 26, 1998 (via U.S.P.O. Registered Mail R 672 645 461), Plaintiffs requested a Right to Sue letter from the Commission.

32. On September 28, 1998, the Commission confirmed receipt of Plaintiffs request.

33. On October 17, 1998, Plaintiffs, "individually and on behalf of all academic and all professional employees over the age of forty" (EEOC), received (via U.S.P.O. Certified Mail Z 509 617 658) a "NOTICE OF RIGHT TO SUE"(1-page), issued on request, from the Commission, copy attached herein as Exhibit E.

34. The EEOC "NOTICE OF RIGHT TO SUE" (#33) is only one (1) page and there was no additional information attached to this notice because EEOC did not investigate the complaint(s) filed by the Plaintiffs on March 28, 1998 (discrimination) and September 17, 1998 (deliberate interference and harassment) and the Commission did not issue a determination.

35. In addition, the above EEOC notice (#33) specifically notified the Plaintiffs that:

36. In addition, the above EEOC notice (#33) specifically notified the named Plaintiffs, individually and on behalf of all others similarly situated that they already had the right to sue under the Equal Pay Act (EPA):

37. The Commission enclosed a two (2) page "Information Sheet", entitled "FACTS ABOUT FILING AN EMPLOYMENT DISCRIMINATION SUIT IN FEDERAL COURT IN NEW YORK STATE", herein attached as Exhibit F, with the above (#33) "Right to Sue" notice.

38. As advised by the Commission, the Plaintiffs, individually, and on behalf of all others similarly situated, filed, pro se, a lawsuit in Federal Court "within 90 days" (January 14, 1999) of the date (October 17, 1998) of receipt of the "NOTICE OF RIGHT TO SUE" in the District Court.

39. On January 14, 1999, the United States District Court assigned the Plaintiffs Civil Lawsuit case number 99 CV-0032C(H) and the Court Clerk issued a "SUMMONS IN A CIVIL CASE", copy attached herein as Exhibit G.

40. As advised by the District Court pro se attorney, Plaintiffs are filing and serving this amended Complaint and a copy of Plaintiff(s) initial Complaint (dated January 6, 1999, filed, pro se, on January 14, 1999) with the Summons prepared by the District Court Clerk to the State (Defendant) and to the UUP (Defendant) within 120 days of the filing date (January 14, 1999) in the United States District Court (USDC/WDNY) and certification of service will be filed with the Court.

41. The State (Defendant) and the UUP (Defendant) maintain local offices in the County of Erie.

42. The local address for the State of New York (Defendant) is:

43. The local address for the United University Professsions (Defendant) and its affiliate (NYSUT) is:

44. After service of the Summons and Complaint, as amended, the the State (Defendant) and the UUP (Defendant) individually, as Defendants, are required to serve an answer to the Plaintiffs complaint "within 20 days after service" (U.S.D.C. SUMMONS IN A CIVIL CASE dated 1/14/99) to:
FACTS

45. On or about September 30, 1997, the Executive Branch of the State of New York (Employer-Defendant) and the United University Professions (Union-Defendant) signed a collective bargaining agreement.

46. Plaintiffs claim the above agreement between the State of New York and UUP (Defendants) is invalid because it includes articles, portions, and sections that violate policies, laws, rules, and regulations, including but not limited to the Age Discrimination in Employment Act of 1967 (ADEA) and the Older Workers Benefit Protection Act of 1990 (OWBPA) and State rules appearing in the Official Compilation of Codes and Regulations of the State of New York as Subchapter b of Chapter V of Volume 8 (Education), (underlining for emphasis).

47. One article (Article 36) in the above (#45) agreement includes an arbitrary and capricious claim that the State (Employer-Defendant) "has the right" to "contract out" for services and unilaterally cancel employment appointment contracts (term or permanent-continuing) with each individual professional employee; specifically the State speciously asserts in Art. 36.1:

48. In fact, there is no State or Federal law that gives an employer the right to arbitrarily and capriciously break professional employees term (specified period) or permanent-continuing (life-time) individual contracts.

49. In addition, the State (Employer-Defendant) claim of the right to contract out for services in Article 36 conflicts with Article 30 in the same Agreement (underlining for emphasis).

50. In Article 30 (Appointment, Evaluation and Promotion), State (Employer-Defendant) acknowledged and continued a long-standing policy and requirement that professional employee appointments shall be made in accordance with Article XI of the Policies; specifically, Section 30.1 states:

51. The above SUNY Policies appear in the Official Compilation of Codes, Rules and Regulations of the State of New York as Subchapter b of Chapter V of Volume 8 entitled "Education", hereinafter, the Policies.

52. These Policies shall apply only to the State-operated colleges of the University.

53. These Policies shall constitute rules of the Board of Trustees for the government of the University.

54. The Board of Trustees (Interested Party) are appointed by the State of New York Governor (Employer-Defendant).

55. Plaintiffs individual term or permanent continuing contract(s) are subject to the Policies of the State University Board of Trustees.

56. United University Professions (Union-Defendant) is not a Party to any individually negotiated permanent, continuing, or term appointments accepted, to date, by individual professional employees, under Article 30 of the Agreement(s) and Article XI (Titles A. - D.) and Article XIV (Title B.) or Article XV (Titles B. and D.) of the Policies of the Board of Trustees.

57. Plaintiffs have been appointed in accordance with Article XI (Appointments) of the Policies.

58. Under the Policies of the State University Board of Trustees, professional employees with continuing appointment (academic employees) and professional employees with permanent appointment (professional employees) have life-time appointment in effect until the individual employee voluntarily resigns or voluntarily applies for retirement benefits (Policies, Article XI and Article XV).

59. All State University professional employees with continuing-permanent appointments or term appointments are considered employees who are the "best qualified" University employees (Policies, Article XI).

60. Under the Policies of the State University Board of Trustees, professional employees term appointment(s) are for a specified period, e.g. 3-5 years, and may be renewed in accordance with Article XI (Title D.) of the Policies and individual professional employee term appointments cease automatically at the end of their specified terms (Article XIV, Title B.).

61. On or about July 31, 1998, the State University of New York Board of Trustees ("Trustees") reprinted the above Policies and the above appointment terms and conditions for all State University academic and/or professional staff with permanent and/or continuing appointment contracts remain exactly the same as the previously printed Policies (July 12, 1994).

62. There is no provision in the Policies of the Board of Trustees, in effect to date, that supports the State (Employer-Defendant) assertion of a right to contract out (terminate) professional employees with permanent-continuing contracts under the Policies, copy attached herein as Exhibit H.

63. The UUP (Defendant) has no authority to grant the employer (State-Defendant) "the right" to contract out (terminate) employee(s) with individual permanent, continuing or term appointment contracts signed by an agent (University) of the State Governor (Employer-Defendant) and an individual professional employee, under the terms of the Policies.

64. Even if the Policies were not controlling over the permanent, continuing and term appointments of professional employees, Article 36 (Contracting Out) violates Plaintiffs rights under Federal and State law because Article 36 arbitrarily divides professional employee(s) with long-standing individually negotiated permanent-continuing (life-time) or term (specified period) appointment contracts under the equal provisions of the Policies of the Board of Trustees (Article XI) into two (2) different, and unequal, professional employee classes:

65. The one class of employee(s) will not be contracted out by the State; and, as a result, this class will continue to be employed and enjoy the benefits of continuing employment, including but not limited to, negotiated raises (Article 20), health insurance (Article 39), paid leaves (Article 23), prescription drug payments (Article 40), retrenchment rights (Article 35), Chairperson stipends (Article 25) and the other benefits in the Agreement.

66. The other class of employees will be "affected" employees and only entitled to "redeployment consideration" or "severance" in accordance with Article 36 (Contracting Out) and Appendix A-27 (Memorandum of Understanding on Contracting Out), copy attached herein as Exhibit I.

67. In Article 36.4, the State (Employer-Defendant) defines the professional employee who will be arbitrarily and capriciously selected by the State for termination by "contracting out" as an "affected employee" or an "employee affected" by "contracting out".

68. All State employees represented by UUP who are "affected" by "contracting out" are defined in Article A. (Section 1) of APPENDIX A-27 (MEMORANDUM OF UNDERSTANDING ON CONTRACTING OUT) specifically:

69. At all times pertinent, Defendants, the STATE OF NEW YORK and UNITED UNIVERSITY PROFESSIONS had an agreement continuing established policy prohibiting all forms of illegal discrimination, including but not limited to discrimination against employees forty (40) years of age or older who are a specifically protected class of STATE employees under State and Federal laws.

70. The majority of the full-time (1. FTE) professional employees in the State University of New York with individual permanent, continuing or term contracts, under the Policies, are forty (40) years of age, or older.

71. For example, in the Fall of 1991, about 580 of 631 University leading professors, full professors and associate professors (those who virtually always have tenure) at the State University of New York University at Buffalo (UB) core campus (those other than in the Health Sciences) were forty (40) years of age of older, i.e., about 91.9%.

72. The Age Discrimination in Employment Act of 1967 (ADEA), as amended, protects individuals, who are forty (40) years of age, or older, from employment discrimination based on age.

73. The Older Workers Benefits Protection Act (OWBPA, 1990) amended the ADEA to specifically prohibit employers, including the State, from denying equal benefits to employees forty (40) years of age or older.

74. The Plaintiff(s) are forty (40) years of age or older and claim any and all rights under the Age Discrimination in Employment Act, et siq.

75. The individually named plaintiffs (Zarembka and Jungels) are fifty-seven (57) and sixty (60) respectively.

76. Plaintiffs claim the State (Defendant) and UUP (Defendant) did not comply with Federal laws, including but not limited to the ADEA and OWBPA, when the State and UUP agreed to Article 36 (Contracting Out) and the provisions in Appendix A-27 (Memorandum of Understanding on Contracting Out).

77. Under the Age Discrimination in Employment Act ("ADEA"), it is unlawful for employers, including the State of New York or State Governor, to limit, segregate, or classify State University employee(s) in any way which would deprive, or tend to deprive, any individual employee of employment opportunities or otherwise adversely affect his/her status as an employee; or discharge any individual or otherwise discriminate against any individual with respect to compensation, terms/conditions or privileges of employment, because of such individual's age; specifically ADEA, SEC. 623 [Section 4] subsection (a) (1-3) states it is unlawful for State employer:

78. The ADEA prohibits an employer, including the State of New York (Defendant) from, inter alia, discharging any individual over the age of forty (40) because of age.

79. The "discharge" element of an ADEA claim may be either an actual termination of the plaintiffs'; employment by the employer or it may be a "constructive" discharge.

80. The provisions of Contracting-Out (Article 36 and Appendix A-27) are specific constructive discharge terms and conditions and violate Federal law, including but not limited to, the ADEA.

81. Plaintiff(s) may prove a constructive discharge by establishing that his/her employer, rather than acting directly, deliberately made his/her work conditions so intolerable that he/she was "forced" into an involuntary resignation such as defined in Appendix A-27 of the 1995-1999 Agreement (Exhibit I).

82. The State of New York (Employer-Defendant) unilaterally constructively discharged all professional employees in the State University of New York by claiming a "right" to "Contracting-Out" (termination) on or about September 30, 1997.

83. On or about September 30, 1997, the UUP improperly agreed with the State of New York Governor's (Employer-Defendant) demand for a non-existent "right" to unilaterally break continuing permanent contracts.

84. On or about September 30, 1997, the State of New York, as the Plaintiffs employer, constructively "discharged" professional employees with permanent contracts/tenure who were forty (40) years of age or older.

85. The UUP (Defendant) improperly agreed to the State demands for contracting-out terminations (constructive discharge) for its employees.

86. Although the State Governor forced professional employees in the State University to work without any raises in State base salary for over two (2) years (from July, 1995 to January, 1998), the majority of members continued to oppose the Governor's demand to end permanent appointments.

87. For example, on April 18, 1997, the UUP President (William E. Scheuerman) wrote a letter to State University professional employee(s) stating:

88. No State University professional employees agreed to contracting-out; in fact, PSNU members, through their representatives in the UUP Delegate Assembly, opposed contracting-out in DA resolutions approved in in 1996 (Spring, 1996 Delegate Assembly, May 10-11, 1996) and, again, in 1997 (Spring, 1997 Delegate Assembly, May 9-10, 1996).

89. During the 1995-1999 collective bargaining negotiations, State (Employer-Defendant) deliberately created a hostile environment in SUNY and a deliberate hostile environment by any State as an employer, including the State of New York Governor, violates the ADEA.

90. For example, the State deliberately withheld prescription benefits (Benefit Trust Fund) from State University professional employee(s).

91. For example, 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 or individuals named in this complaint on behalf of all others similarly situated even though State and UUP agreed the terms and conditions of the 1995-99 Agreement would cover issues back to September 30, 1981.

92. For example, the State deliberately threatened professors with continuing appointment who had been "retrenched" with loss of all benefits negotiated by UUP if each professor did not sign a "self-termination" letter and agree to "waive" rights, including the right to due process in a State or Federal forum for age discrimination claims under the ADEA (underlining for emphasis).

93. The ADEA provides for an award of double damages when an employer's action is "willful".

94. Plaintiffs claim the State (Employer-Defendant) acted willfully to deny Plaintiffs rights under law, including but not limited to the ADEA.

95. Based on information and belief, the Plaintiffs claim the State (Employer-Defendant) violated SEC. 623 [Section 4], specifically (a) (1-3) of the ADEA (#77 above) by unlawfully claiming a non-existent "right" to arbitrarily employ, deploy or sever any or all professional employees who were hired under specific equal terms and conditions of State employment in the State University of New York.

96. Specifically, beginning on or about September 30, 1997, State of New York (Employer-Defendant) has claimed non-existent rights under the provisions of Article 36 and Appendix 27 in the 1995-1999 Agreement (underlining for emphasis), e.g.:

97. The State of New York (Defendant) has stated no reason(s) for eliminating any professional employee position (underlining for emphasis).

98. The United University Professions (UUP) has given no reason for agreement to "deploy" or "sever" members (underlining for emphasis).

99. Based on information and belief, Plaintiff(s) claim there is no reason but discrimination for the State to arbitrarily eliminate professional employee position(s) under the provisions of Article 36 (Contracting Out).

100. Under the Age Discrimination in Employment Act ("ADEA"), it is unlawful for labor organization(s), including the United University Professions, to limit, segregate, or classify its membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive employment opportunities or would limit such employment opportunities or otherwise adversely affect his/her status, as an employee or as an applicant for employment, or exclude and/or expel from membership or otherwise disciminate against any individual emloyee or union member, based on age; specifically, ADEA, SEC. 623 [Section 4] subsection (c) (1-3), states it is unlawful for a labor organization:

101. The UUP violated ADEA SEC. 623 [Section 4] subsection (c) (1-3) by unlawfully agreeing, on or about September 30, 1997, to exclude or expel from membership professional employees in positions eliminated by the State (Employer-Defendant) under the provisions of Article 36 and the Appendix 27-A (Memorandum of Understanding on Contracting Out).

102. Based on information and belief, Plaintiffs claim, individually and on behalf of all others similarly situated, that the provisions in Article 36 and Appendix A-27 in the 1995-1999 Agreement between the State and UUP (Defendants) are a subterfuge for the State (Employer-Defendant) to select professional employees arbitrarily, one-by-one, and/or area-by-area, and/or campus-by-campus, for termination without adhering to Article 35 (Retrenchment) provisions.

103. Under the provisions of Article 35 (Retrenchment), the State (Employer-Defendant) has a right to terminate professional employees in the State University of New York for certain limited reasons, specifically:

104. Under Article 36 (Contracting-Out) the State of New York's Governor (Employer) claims a non-existent right to terminate employees for no reason (underlining for emphasis).

105. Based on information and belief, Plaintiff(s) claim there is no reason but age discrimination for the State and UUP (Defendants) to agree to a non-existent right to eliminate professional employee(s) for no reason.

106. Plaintiffs claim Article 36 violates Federal law, including but not limited to the Age Discrimination in Employment Act (ADEA), et seq, the Older Workers Benefits Protection Act of 1990 (OWBPA), The Equal Pay Act (EPA), and equal protection rights under the U. S. Constitution.

107. The Older Workers Benefits Protection Act (OWBPA, 1990) amended the ADEA to specifically prohibit employers, including the State of New York, from denying benefits to older employees.

108. Under the OWBPA, an employer may reduce benefits based on age only if the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers.

109. The State (Defendant) controls the lists of SUNY employees in the professional services negotiating unit (UUP) as specified in agreement (Article 16) signed on or about September 30, 1997.

110. Based on information and belief, Plaintiffs claim the employer (State-Defendant) has not provided their union (UUP-Defendant) with true and correct and complete listings of all professional employees working in the State University under individual contracts (underlining for emphasis).

111. The United States District Court WDNY has jurisdiction over discovery of the above specific information (#109).

112. At all times pertinent, STATE OF NEW YORK (defendant) had an agreement with United University Professions (UUP) to preserve all State University professional service employees benefits or privileges provided by law, rule or by regulation (Article 6 Benefits Preserved) underlining for emphasis:

113. Notwithstanding State and Federal law prohibiting all forms of discrimination and the above specific article preserving benefits in effect at the time, the State (defendant) unilaterally and illegally stopped its payment to the State/UUP Benefit Trust Fund during collective bargaining meetings.

114. As a result of the above action by the State (Defendant), SUNY professional employees lost contractual benefits and "were forced to work without dental and optical benefits for over a year" (from UUP letter dated August 18, 1997, copy attached herein as Exhibit J).

115. Based on information and belief, Plaintiffs individually, and on behalf of any/all other State University professional service employees, claim the State (defendant) deliberately and maliciously stopped payment into the UUP Benefit Trust Fund to demonstrate to any/all of the affected employees what the State (defendant) could do to harm each and/or every employee until UUP and its membership agreed to ratify the terms and/or conditions proposed by the State (defendant) for a 1995-1999 Agreement, underlining for emphasis.

116. Based on information and belief, Plaintiffs individually, and on behalf of all others similarly situated, claim State (defendant) illegally diminished and/or impaired numerous other university employee benefits and/or privileges provided by laws, rules, and/or regulations without any notice to any/all individually affected employees and, apparently, without notice to the United University Professions or any NYSUT representative and/or the State University Senate, and/or the SUNY Board of Trustee(s).

117. Based on information and belief, Plaintiffs individually, and on behalf of all others similarly situated, claim State (defendant) illegally diminished and/or impaired numerous benefits and/or privileges provided by laws, rules and/or regulations for all of and/or some of the employees who were forty (40) years of age or older during the time the Agreement (1991-1995) was in effect from December 4, 1992 to September 30, 1997.

118. Based on information and belief, Plaintiffs, individually, and on behalf of all other state university professional service employees who are, or will be, forty (40) years old or older during the time the 1995-99 Agreement is in effect, claim any action by the State (defendant) or union (defendant) to diminish and/or impair any benefits or privileges provided by laws, rules and/or regulations is illegal age discrimination by the State.

119. Based on information and belief, Plaintiffs, individually, and on behalf of all others similarly situated, claim State (defendant) impaired and/or diminished all of, or at least some of, the following State benefit(s) or privilege(s) provided by law, rule, regulation, and/or the past practices of the State of New York for over twenty-five (25) years or appoximately 1972 (underlining for emphasis):

120. During the collective bargaining negotiations for the 1995-99 Agreement, the State (Employer-Defendant) deliberately "forced" professors with continuing appointment to waive negotiated rights and terminate individual permanent contracts; for example:

121. UUP (Union-Defendant) agreed to the above self-termination actions and UUP advised the SUNY employees to waive employment rights, including but not limited to, all State employment rights under the ADEA.

122. Employees who protested the State demands to "waive" rights or "self-terminate" were threatened with the loss of all retirement benefits and/or privileges.

123. Defendants, individually and jointly, deliberately misinformed and misled plaintiffs during the collective bargaining process from 1995 to on or about September 30, 1997 and they continue to mislead the plaintiffs.

124. For example, UUP President William E. Scheuerman led UUP Delegate Assembly members to believe that the negotiating team would not accept the termination of professional employees through "contracting-out" or "outsourcing".

125. As a result, the UUP Delegate Assembly members supported a Spring 1996 resolution specifically stating:

126. The above resolution was re-affirmed in similar language at the Spring 1997 Delegate Assembly.

127. As a result of the misleading statements made by the State and UUP (defendants) during the prolonged negotiations period (1995 to 1997) and specious assurance from UUP (Defendant) 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 (Defendant) and voted to ratify the agreement with the understanding that Article 36 (Contracting Out) was not any risk for members.

128. For example, a UUP leadership statement dated August 5, 1997 ("Questions and Answers About the Tentative Agreement") addressed to all professional employees said "absolutely no one can lose their employment", copy attached herein as Exhibit K.

129. In fact, all State University employees in the PSNU negotiating unit (UUP) could lose employment under Article 36 in 1995-99 Agreement.

130. After the proposed agreement was ratified, union members on the negotiating team shared the fact that they knew there was a "risk" in the contracting out provision (Article 36) of the "tentative agreement" between State and UUP (Defendants).

131. Members of the UUP (defendant) negotiating team did not tell State University professional services negotiating unit (PSNU) employee(s) there was any "risk" in the proposed agreement before unit members voted on the Agreement (underlining for emphasis).

132. In fact, the UUP President (William E. Scheuerman) and UUP Chief Negotiator (Thomas E. Matthews) notified state university employees that the "Negotiations Committee has voted to endorse the proposed Agreement and has recommended that the membership vote to ratify it."

133. Based on this information from the UUP (defendant) members voted, in good faith, to ratify the proposed agreement.

134. During contract negotiations, the State (defendant) deliberately and maliciously withheld health benefits from State University employee(s) and their families.

135. The withholding of health benefits by the State (defendant) for over two (2) years was a deliberate and malicious pressure to cause duress.

136. A person who acts under duress cannot ratify an agreement or contract until the duress is removed.

137. The duress of withheld benefits continues to date and the State (defendant) has added to the duress by threatening to exercise contracting-out (termination!) arbitrarily against State selected ("affected") employees.

138. Based on information and belief, the State (Defendant) and the UUP (Defendant) have reimbursed only some of the State benefits withheld from every member of the Professional Services Negotiating Unit (PSNU).

139. Based on information and belief, the State (defendant) coerced individual members of the UUP negotiating team to accept the contracting-out provisions in Article 36.

140. Based on information and belief, the UUP (defendant) advised members (incorrectly), on or about August 18, 1997, that the "regulations" for contracting out could insure the employment security of every member of our bargaining unit -- academic and professional, when, in fact, there is no employment security for every member in the provisions of Article 36, underlining for emphasis.

141. The State University of New York Board of Trustees submit a budget annually to the State of New York legislature.

142. To date, the State University Board of Trustees have requested less than adequate funding for the operation of the State University of New York for the fiscal year 1999 to 2000.

143. Based on information and belief, the Plaintiffs claim the Board of Trustees (Interested Party) is deliberately underbudgeting the University to create a specious financial exigency as the reason for contracting out and retrenchment in the future.

144. Any underfunding of the State University eliminates service(s) for the People of the State of New York.

145. Plaintiff(s) are represented by their elected representative(s) in the State legislature.

146. All members of the State Senate and the State Assembly have a long-standing public policy of "No Discrimination".

147. Plaintiffs have advised elected representatives of the problems with the Agreement signed on or about September 30, 1997 by Defendants.

148. On or about January 5, 1998, Plaintiffs notified colleagues and State legislative representatives in person and in writing that the State-UUP agreement signed on or about September 30, 1997 included provisions that could not be implemented or permitted if they impaired any State benefit(s) and privilege(s) provided by law, rule or regulation by the State or Federal government, copy of confirming letter(s) attached herein as Exhibit L.

149. On or about January 15, 1998, Plaintiffs employer (Governor) requested representatives (Sullivan and Vitaliano) of the PEOPLE OF THE STATE OF NEW YORK introduce legislation (State Assembly Bill 08916) "to implement agreements between the state and an employee organization" and this bill was referred to the "Committee on Governmental Employees", on January 15, 1998, passed the Assembly on January 20, 1998, passed the Senate on January 21, 1998, delivered to the Governor (George E. Pataki) and signed on January 21, 1998, copy attached herein as Exhibit M.

150. Defendants, individually and jointly, deliberately misinformed and misled Plaintiffs elected representatives in the State Assembly and State Senate by repeatedly referring to the above proposed amendment (A08916) to state law (S2 Chap 554 of 1997) as the "pay bill" for the State University professional employees.

151. In fact, the above bill, requested by the Governor, is the initial step for the arbitrary employment changes planned by the State (Defendant) under the contracting out provision (Article 36) in the 1995-99 Agreement.

152. Specifically, beginning on or about January 15, 1998, the State Governor (Employer-Defendant) requested State representative(s) Sullivan and Vitaliano to introduce New York State Bill A08916 as an adjustment of salaries act (pay bill) on behalf of the People of the State of New York.

153. In the same Bill (08916), the Governor (Employer-Defendant) requested the State legislature implement the other agreements made by the State and UUP (Defendants).

154. Specifically, in New York State Bill 08916, the State Governor (Employer-Defendant) requested the State legislature approve agreement(s) between the State and UUP (Union-Defendant) for an adjustment of salaries for some professional employees ("certain incumbents") at the discretion of the Chancellor and the Director of Employee Relations for State University (underlining for emphasis); specifically, Section 7., Subsection 14. (46-51) states:

155. The State (Employer-Defendant) and UUP (Union-Defendant) failed to notify the incumbents about the above agreement between the State and UUP.

156. The State (Employer-Defendant) and UUP (Union-Defendant) mutually "agreed", through their respective agents, Raymond L. Haines, Jr. (State) and Anthony D. Wildman (Union), that the terms and conditions for some State University employees will be handled by the State of New York through the Office of the State Attorney General.

157. For example, the State and UUP agreed to "hold in abeyance", indefinitely, contract grievances filed by the union on behalf of at least one of the Plaintiffs (named individual Plaintiff, Professor Georgiana Jungels).

158. For example, the State (Employer-Defendant), through one of its Executive Department agents (Division of Human Rights), is holding in abeyance, indefinitely, multiple discrimination complaints previously filed by SUNY professional employees (Plaintiffs), including but not limited to, named individual Plaintiff, Professor Paul Zarembka.

159. In addition, in New York State Bill 08916, the State Governor (Employer-Defendant) requested the legislature approve other agreements.

160. For example, in Section 10., Subsection 7. (7-16) of the above bill, the State formed a committee (Tripartite Redeployment Committee) to implement agreements which may be entered into between July 2, 1995 and July 1, 1999 (underlining for emphasis), specifically:

161. On or about September 30, 1997, the State Governor and UUP (Defendants) agreed the Tripartite Redeployment Committee "shall 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 (Defendants).

162. The Tripartite Redeployment Committee is a three (3) person committee.

163. The State Governor (Employer-Defendant) is represented by two (2) representatives:

164. The UUP is represented by President William E. Scheuerman.

165. As a result of the Governor's request, on or about January 15, 1998, the term (specified period) and the permanent-continuing (life-time) appointment(s) of State University professional employees were arbitrarily changed to a day-to-day appointment status that is dependent upon the State (Employer-Defendant) and/or an arbitrary decision by the three (3) person "Tripartite Redeployment Committee".

166. This action by a NYS Governor is parallel to a U. S. President unilaterally requesting Congress enact Federal legislation that would enable the President to fire any/all Federal employees with employment contracts.

167. Based on information and belief, Plaintiffs claim the State and UUP have agreed to request State funding from the State legislature to hire "new" (younger) employees to replace current professional employees who are contracted out (terminated) by the State of New York under Article 36.

168. In fact, the State and UUP (Defendants) mutually support hiring new employees and the State has requested funding for this purpose from the State legislature and UUP has urged NYS legislative representatives to support.

169. The above fact was confirmed by UUP (Defendant) on or about March 15, 1999 in a notice posted on the State University electronic bulletin reporting that the State Assembly "supports most of the budget restorations", requested by UUP, copy attached herein as Exhibit N.

170. The above actions by the State (Employer-Defendant) and other person(s) who may be unidentified, to date, violate the protected due process rights of all State University professional employee under the Constitution of the United States of America (hereinafter, "Constitution").

171. Specifically, Section 1. of Article XIV of the Constitution states:

172. The Plaintiff(s) claim any and all due process rights under the fourteenth (14th) amendment of the Constitution of the United States.

173. Based on information and belief, Plaintiffs claim the State and UUP (Defendants) unlawfully agreed, on or about September 30, 1997, to implement procedures to deprive professional employees in the University of property (term or permenant-continuing appointment contract) without any due process of law or any equal protection of the laws.

174. In addition, the State and UUP (Defendants) have deliberately denied equal protection to equal employees by agreeing to arbitrarily sever some ("affected") professional employees in the State University under the provisions of Article 36 (Contracting Out) in the 1995-1999 Agreement.

175. Based on information and belief, Plaintiffs claim the State and UUP (Defendants) unlawfully agreed, beginning on or about September 30, 1997 to date, to initiate changes in State laws that will deny State employees equal protection and due process of law under the fourteenth amendment of the U. S. Constitution.

176. For example, under Article A (Section 5) of the above MOU, an academic employee with continuing appointment who is contracted out will have ten (10) working days to accept or decline a redeployment offer.

177. If the employee accepts the offer of "redeployment", he [she] shall retain the academic title which the employee held immediately prior to the time of redeployment, retain continuing appointment, and continue to receive the same basic annual salary in effect "at the time a Request for Proposal for contracting out is issued".

178. Based on information and belief, to date, Plaintiffs claim the State will terminate employees one day (by exercising "right" to contract out) and, at a later date (when these employees have lost titles, tenure and salary), the State will issue the "Request for Proposal for contracting out".

179. As a result, no contracted-out employee will retain academic title, continuing appointment or the same basic annual salary.

180. In addition, deployed employees have no guaranteed rights to the State wages and benefits they had as professional employees with State funded continuing-permanent appointments in a State agency (University).

181. If the employee declines an offer of "redeployment" or fails to accept in writing within ten working days, no further redeployment consideration shall be accorded to the employee and he or she shall be terminated from employment 30 calendar days from the date the employee declines an offer of deployment at the contracting out campus.

182. In the event that the offer is for a position other than at the contracting out campus, the employee shall be terminated from employment effective 180 calendar days from the date the employee declines such redeployment offer.

183. Upon termination, the employee may elect one of the following Article 36.2 "transition benefits" (underlining for emphasis):

184. The State (defendant) and UUP (defendant) specifically state age is a specific criteria under the provisions of Article 36 (Contracting Out) for any severance payments for employees "affected" by contracting out under the provision defined in Appendix A-27, Article C, Section 3.2:

185. The State and UUP (Defendants) agreed there will be a lower severance payment to affected employee(s) who are under under fifty (50) years of age (underling for emphasis):

186. The State and UUP (Defendants) mutually agreed, on or about September 30, 1997, that "severance benefits" shall apply solely to affected employees, who the State and UUP (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":

187. The State and UUP (Defendants) mutually agreed, on or about September 30, 1997, that employees would apply for the severence benefit.

188. State employees who "apply" for "severance" (self-terminate) are not eligible for State unemployment benefits.

189. Plaintiffs have not accepted the above terms in the Agreement, signed on or September 30, 1997, because these terms violate Federal laws.

190. Based on information and belief, the Plaintiffs claim the State (Employer-Defendant) Severance Agreement (in Article D., Appendix A-27, pages 87-88 in the 1995-1999 Agreement) for employees "affected" by the provisions in Article 36 (Contracting Out) is not a valid agreement for professional employees who are forty (40) years of age or older since this Severance Agreement does not include a specific request for a waiver of ADEA rights as required by Federal laws, including but not limited to, the Age Discrimination in Employment Act (ADEA), as amended in 1990 by the Older Workers Benefit Protection Act (OWBPA) and held by U. S. Supreme Court in 1998.

191. On or about January 26, 1998, the U. S. Supreme Court ruled (Oubre v. Entergy) an employer is required to comply with ADEA, et siq. specific requirement(s) for an employment termination agreement for any employees who are forty (40) years of age or older.

192. The State and UUP (Defendants) failed to comply with ADEA specific requirements when they agreed, on or about September 30, 1997, to the following Severance Agreement in Article D, Appendix A-27 in the 1995-1999 Agreement:

193. The Plaintiffs, individually and on behalf of all other similarly situated who are forty (40) years of age, or older, claim employer ("State") and union ("UUP") unlawfully agreed, on or about September 30, 1997, on a severance agreement that violates the ADEA (1967) and OWBPA (1990).

194. On or about January 15, 1997, the EEOC published guidelines for the ADEA (1967) and OWBPA (1990) with a copy of the ADEA law et seq.

195. EEOC posted a copy of the above (#194) public information on the world wide web (internet) and this information was made available, to any person with internet access at "http://www.eeoc.gov/facts/age.html".

196. The above information was available to the State and the UUP.

197. The EEOC guidelines for the ADEA and OWBPA include the following specific "Facts About Age Discrimination":

198. In addition, these EEOC guidelines (January 15, 1997) for the ADEA (1967) and OWBPA (1990) state that under ADEA, employers are prevented from denying benefits to older (40+) employees:

199. In addition, these EEOC guidelines (January 15, 1997) for the ADEA (1967) and OWBPA (1990) note "an individual may agree to waive his/her rights or claims under the ADEA" only if a waiver is "knowing and voluntary" and only if an employer specifically requests an employee waive individual employee ADEA rights and only if the employer meets "specific minimum standards" (from the EEOC online Home Page "last modified on January 15, 1997" and downloaded by Plaintiffs, on January 3, 1999, copy attached herein as Exhibit O.

200. For example, under the ADEA, to be considered knowing and voluntary, or valid, a waiver:

201. The Plaintiff(s) claim, individually and on behalf of all others similarly situated, that their employer (State of New York) has never requested any or all individual SUNY professional employees "agree to waive his/her rights or claims under the ADEA".

202. In addition, under the ADEA, if an employer, including State of New York (Governor), requests an ADEA waiver in connection with an exit incentive program or any other employment termination program, the minimum requirements for a valid waiver are more extensive.

203. The State and UUP (Defendants) included provisions in Article 36 (Contracting Out) for an employment termination program under the provisions of Article 36 (Appendix A-27) without a request to employee(s) for a valid waiver of ADEA rights (underlining for emphasis).

204. The State does not have the right to arbitrarily reclassify State employees with term or continuing or permanent appointments contract(s), under Article 30 of the Agreement and Article XI of the Policies, who are forty (40) years of age, or older, into "affected" and unaffected employees under the ADEA.

205. The UUP does not have the right to agree to any provision(s), including but not limited to the provisions in Article 36 (Contracting Out) and/or any process and procedures for "Redeployment Consideration", or "Severance Option" or "Severance Agreement" or any other provisions(s) that limit, segregate or classify professional employees who are forty (40) years of age, or over, into "affected" and unaffected employees under the ADEA.

206. Plaintiff(s) claim the above article is invalid because the State (Employer-Defendant) has no right under any State or Federal law to any arbitrary and capricious contracting out of SUNY professional employees with term appointment or permanent or continuing appointment contracts.

207. The State and UUP (Defendants) have provided no reasons for the State's claim to a right to eliminate professional employee position(s) in the State University by contracting out services (underlining for emphasis).

208. Under Article 36, the State (Defendant) plans to continue to employ some professional employees, offer redeployment consideration to other employees, and require other employees to apply for severance (underlining for emphasis).

209. The State and UUP (Defendants) have provided no reasons for the State claim to a right to contract out for services and redeploy or sever any or all professional employees.

210. The Plaintiff(s) claim, individually and on behalf of all others similarly situated, claim all rights, benefits and privileges under the ADEA as amended and any/all rights, benefits and privileges under any other laws.

211. Based on information and belief, Plaintiffs claim individually and on behalf of all others similarly situated that the State (defendant) and UUP (defendant) will use the provisions in Article 36 ("Contracting Out") to arbitrarily select some employees for "good" contracts and some others for "bad" contracts and this violates ADEA and The Equal Pay Act (EPA).

212. Plaintiffs claim the State (defendant) and UUP (defendant) did not comply with Federal laws, including but not limited to the ADEA and OWBPA, when the State and UUP agreed to Article 36 (Contracting Out) and the provision(s) (Appendix A-27 "Memorandum of Understanding on Contracting Out" in the 1995-1999 collective bargaining agreement (cba).

213. Plaintiffs claim any and all unequal payments to any employees with equal term or permanent appointments, equal rank and equal length of service as State employees is illegal employment discrimination and violates Federal law, including but not limited to the ADEA and The Equal Pay Act (EPA).

214. The State of New York (defendant) and the United University Professions (defendant) claim the above Agreement includes matters dating back to September, 1981.

215. Plaintiffs claim all rights, benefits, privileges, and information dating back to September, 1981.

216. Plaintiffs claim 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 this action violates Federal law(s), including but not limited to the ADEA, OWBPA and the EPA.

217. Plaintiffs claim the Defendants plan to coverup discrimination dating back to September, 1981 by selectively identifying higher paid male employees for higher paid contracting-out and targeting lower paid female employee for lower paid contracts to force some employees to "apply" for "severance" benefits.

218. The State of New York (defendant ) and the United University Professions (defendant) claim the above Agreement increases compensation and preserves benefits for all professional employees in the state university.

219. Plaintiffs claim the Defendants have arbitrarily increased some benefits for some employees and decreased other benefits for certain other employees.

220. Plaintiffs claim the Agreement is not fair to all employees and the Defendants have continued known discrimination by agreeing to across the board salary increases without adjusting for known salary disparities in the past twenty (20) years and this action violates the Equal Pay Act (EPA).

221. The State and UUP (Defendants) have documented employees' wages, benefits and other forms of compensation for over twenty-five (25) years.

222. The State and UUP (Defendants) have documented disparities, including but not limited to age and gender disparities, in salaries, benefits, and other forms of State or UUP compensation for professional employees.

223. The United States District Court WDNY has jurisdiction over the discovery of the above specific information (#220, #221, #222).

224 Plaintiffs claim the Agreement is not fair to all employees and the Defendants have agreed to treat professional state university employees unfairly.

225. From September, 1981 to date, the State (Defendant) and UUP (Defendant) have issued reports regarding inequities in salary and benefits.

226. For example, a study in 1987 by UUP (Defendant) noted there were significant salary disparities at the State University College at Buffalo and the State (Defendant) has failed to redress these disparities.

227. In fact, these wage disparities have been deliberately hidden by the State (Defendant) through the selection of specific higher employees for early retirement "incentives" and the continued employment of employee(s) with lower salaries.

228. The financial harm to State University professional employees who did not receive disparity raises for inequitable salaries for many years (eg. 1987 to 1999) is significant.

229. For example, in a recent article (UUP VOICE, March, 1999), SUNY Professor Vicki Janik reported that the SUNY "inequity is twofold; position and promotion,and salaries" and research by the UUP (Defendant) indicates that using salary increments of 3.5 percent, a $1,000 difference in salary would mean an accumulated loss of $84,550 during a 40-year career; if that amount earned 5 percent in investment, the account would hold $210, 684 over 40 years; copy of UUP VOICE article attached herein as Exhibit P.

230. In addition to the above examples of inequities based on age, the State (Defendant) is also aware of the base salary inequities based on gender.

231. For example, a recent report (March 18, 1999) by a University campus (State University College at Buffalo) indicates the average salary of the full-time tenure-track female faculty at this SUNY campus is $4,577 less than the average salary of the full-time tenure-track male faculty and a copy of this notice is is attached herein as Exhibit Q.

The average salary of the 113 full-time tenure-track, female faculty members is $48,982; the average salary of the 236 full-time tenure- track, male faculty members is $53,559; and the average salary of all 349 full-time, tenure-track faculty members is $52,077.

232. Some of the above inequities may be corrected in the future by the Plaintiffs' elected representatives.

233. For example, on or about April 27, 1999, one of the individual Plaintiffs (Professor Paul Zarembka) received a report prepared by the New York State Assembly Speaker (Sheldon Silver) and the Chair (Joan Christensen) of the State Task Force on Women's Issues advising that the "legislation passed by the Assembly ensures that women's wages no longer lag behind men's for work of equal or comparable worth"; copy of this report attached as Exhibit R.

234. Plaintiffs claim the State and UUP (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.

235. The data for all the State professional employees working in the University is under the control of the State (Defendant).

236. The United States District Court WDNY has jurisdiction over the discovery of the above specific information (#229, #230).

237. Plaintiffs claim the State of New York (employer) deliberately demanded the right to contract out in order to discharge older employee(s) arbitrarily and this action violates Federal law, including but not limited to the ADEA and the OWBPA.

238. During the State and UUP (Defendants) negotiations, the State (Defendant) unilaterally diminished and/or impaired benefits and privileges provided by Federal and/or State laws, rules, and/or regulations for certain State University professional employees.

239. For example, the State and UUP (Defendants) agreed to "hold" a grievance regarding earned wages and benefits "in abeyance" indefinitely even after the State (Defendant-Employer) stipulated in a State court (State Workers'; Compensation Board), on or about April 19, 1996, that this State University professor (named individual Plaintiff Georgiana H. Jungels) had a "contract with the employer" and the State employer was "required under their contract to continue her wages"; court transcript copy attached herein as Exhibit S.

240. New York State Law (eg. State Workers' Compensation Law) defines "wages" specifically:

"Wages" mean the money rate at which employment with a covered employer is recompensed under the contract of hiring and includes every form of renumeration for employment paid by the employer to his employee, whether paid directly or indirectly, including salaries, commissions, bonuses and the reasonable money value of board, rent, housing, lodging or similar advantage received.

241. The UUP/NYSUT (Union-Defendant) has failed to provide, to date, qualified representatives (licensed representatives) for UUP members who have been injured on-the-job.

242. The total amount of State wages, benefits, and all other form(s) of compensation withheld to date from any/all professional employees in the State University is unknown by the Plaintiffs at this time.

243. The above specific information is under the control of the State (Employer-Defendant).

244. The United States District Court WDNY has jurisdiction over the discovery of the above specific compensation information (#242, #243).

245. Based on information and belief, the Plaintiffs claim the State (Defendant) has deliberately "threatened" individual employees (unnamed Plaintiffs) who exercised their civil and procedural rights with retaliation.

246. For example, during the contract negotiations, an agent of the State (University) released an "agenda" for one named Plaintiff (Professor Georgiana Jungels) as a deliberate attempt to frighten her into "accepting" unequal compensation (eg. 1985 rate of workers' compensation benefits in lieu of her earned SUNY wages and benefits); a copy of agenda is attached herein as Exhibit T.

247. Other individual Plaintiffs (unnamed to date) have told named Plaintiffs they are afraid the State (Employer-Defendant) will "take away" their current State benefits and/or privileges if they are specifically named.

248. The State (Defendant) and UUP (Defendant) agenda(s) for any and all other similarly situated Plaintiffs are maintained by the State and/or the UUP (Defendant).

249. The United States District Court WDNY has jurisdiction over the discovery of the above specific information (#248).

250. All Plaintiff(s), named and unnamed, are protected against any and all discrimination or retaliation by the State and/or UUP (Defendants).

251. Based on information and belief, Plaintiffs claim the State and UUP have "agreed" to protect the services of some employees and to sever the services of some other employees.

252. Based on information and belief, Plaintiffs claim the State and UUP (Defendants) have violated Federal laws, including but not limited to, the Racketeer Influenced & Corrupt Organizations Act ("RICO").

253. The full extent of the individuals affected by the above actions or other reprehensible acts by the State and UUP (Defendants) is unknown at this time.

254. While the 1991-1995 Agreement was in effect, the negotiating team members and/or representative(s) of the State and UUP (Defendants) met regularly for approximately three (3) years (Fall, 1994 to Fall, 1997) to negotiate salaries, wages, hours, and other State employment terms and conditions for SUNY professional employees and they exchanged tentative proposals for the 1995-1999 Agreement, including but not limited to, the State Governor's demand for a "right" to contract out (terminate) professional employees in the State University of New York.

255. The State and UUP (Defendants) individually documented the above joint meetings in writing; for example, a State University Professor (Paul D. Martin) regularly did detailed short-hand notes of these meetings for the UUP Negotiating Team.

256. The United States District Court WDNY has jurisdiction over the discovery of the above specific information (#255).

257. Any action by any other non-parties, unknown to Plaintiffs at this time, to implement Article 36 contracting-out (termination) of any/all State University employees who are forty (40) years of age or older on or before the above agreement is corrected or replaced by an acceptable State and UUP agreement is construed to be assisting the named parties in illegal discrimination.

258. Based on information and belief, Plaintiffs, individually and on behalf of all others similarly situated, claim the State (Defendant) acted alone, or with the UUP (Defendant), to deny employees their rights under State and Federal laws; for example:

259. Plaintiffs claim in this complaint that the provisions of Article 36 (Contracting Out) of the 1995-1999 Agreement are:

260. The 1995-1999 Agreement, signed on September 30, 1997, by the State and UUP (defendants) includes a "Savings Clause" (Article 48):

261. At all times pertinent, Plaintiffs, individually and on behalf of all others similarly situated, were employees of the State of New York and UUP had the "exclusive right to the payroll deduction of employee organization membership dues for employees" in the state university (Article 15).

262. Plaintiffs have agreed to payroll deductions by their employer (State of New York) for the payment of their union dues.

263. Plaintiffs claim any implementation of Article 36 (Contracting Out) or any other form of termination automatically terminates any and all UUP/NYSUT benefits.

264. Neither UUP or NYSUT has made an provisions for continued benefits for employees who are "contracted-out" (terminated) and deployed or severed by the State of New York.

265. Plaintiffs claim in this Complaint that any claim by the State or UUP (defendants) that the provisions of Article 36 in the Agreement signed on or about September 30, 1997 are "controlling" over the Policies (above) that define the specific terms and conditions for State University employees is specious and "unenforceable" until there is a final decision by the Federal Court as a "tribunal of competent jurisdiction" over the claims made in this class action age discrimination case (Article 48 Savings Clause) underlining for emphasis.

266. The tribunal of competent jurisdiction over the discrimination claims made in this Complaint is the United States District Court, Western District of New York (USDC/WDNY), the United States Court of Appeals for the Second Circuit, and the United States Supreme Court.

267. Plaintiffs are entitled to Federal Court review of employment discrimination claims because they have not sought State Court review.

268. There are very specific federal statutory requirements for the release of claims under the Age Discrimination in Employment Act (1967) 81 Stat.602,29 U.S.C. 621, et seq.

269. On or about January 26, 1998, the U. S. Supreme Court held "an individual may not waive any [ADEA] claim.........unless the waiver is knowing and voluntary...".

270. Plaintiffs claim the State (defendant) and UUP (defendant) did not notify all State University professional service employees that they had waiver rights under the ADEA (underlining for emphasis).

271. In fact, based on information and belief, Plaintiffs claim State (defendant) and UUP (defendant) did not notify any employees about their waiver rights under Federal laws, including but not limited to OWBPA or ADEA, (underlining for emphasis).

272. Based on information and belief, Plaintiffs claim, individually and on behalf of all others similarly situated, that the provisions in Article 36 and Appendix A-27 (Severance Agreement) violate Federal laws, including but not limited to the ADEA and OWBPA.

273. All parties agree there is a "Savings Clause" in the 1995-1999 Agreement, specifically:

274. At all times pertinent, Defendant(s), STATE OF NEW YORK and UNITED UNIVERSITY PROFESSIONS had an agreement continuing established policy prohibiting all forms of illegal discrimination, including but not limited to discrimination against employees forty (40) years of age or older who are a specifically protected class of STATE employees under State and Federal laws.

275. Article 10 ("No Discrimination") in the 1995-1999 Agreement specifically states:

276. Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment -- including, but not limited to, hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.

277. In addition, the provisions of the agreement signed by the State and UUP (Defendants), on or about September 30, 1997, require legislative action to permit State implementation, specifically:

278. Plaintiffs claim their elected representatives have not approved the State Governor's specious claim that the State has a non-existent "right" to break any or all individual contracts with SUNY professional employees.

279. The UUP (Defendant) is a labor organization as defined in the ADEA (SEC. 630, Section 11d), specifically:

280. A State employer, including the State of New York, is defined as an employer in the ADEA, specifically SEC. 630 [Section 11b] states:

281. Given the above clear statutory language in the ADEA, a State, including the State of New York (Employer-Defendant), has no legal right, an an employer, to claim immunity, under the eleventh amendment (Article XI) of the Constitution of the United States of America.

282. The Plaintiff(s) are filing this suit as employees of the State of New York (Employer-Defendant).

283. In addition, ARTICLE XI (11) of the Constitution of the United States of America specifically states:

284. The individually named Plaintiff(s) are citizens of the State of New York and they are not citizens of another State or citizens or subjects of any Foreign State.

285. The individually named Plaintiff(s) are specifically protected against any and all forms of illegal age discrimination since they are forty (40) years of age or older;

286. The named Plaintiffs, Paul Zarembka and Georgiana Jungels, are State employees with continuing (permanent) State appointment status as defined by policy, rule, regulation and law.

287. The named Plaintiffs, Paul Zarembka and Georgiana Jungels, have worked for the State (Employer-Defendant) from 1972 to date; they received permanent State appointments in 1972 and 1973 respectively and have individual permanent continuing permanent appointment contract(s), copies attached herein as Exhibit U.

288. The above (#287) contracts were signed by a State agent (State University Chancellor or designee) and each of the individual employee(s) named in each individual letter of appointment.

289. Copies of Plaintiffs individual contracts are filed in the Office of the State University Chancellor and on each individual's SUNY campus.

290. The individually named Plaintiff, Paul Zarembka, was born on April 17,1942 and the individually named Plaintiff, Georgiana Jungels, was born on March 29, 1939; copies of Plaintiffs' birth certificates are attached herein as Exhibit V.

291. Plaintiffs filed an age discrimination charge under the ADEA, on March 28, 1998, and the individually named Plaintiff(s) are recognized by the State and UUP (Defendants) as participants in an ADEA proceeding.

292. Plaintiffs represent all academic and professional employees who are now forty (40) years of age, or older, or who will be forty (40) years of age within the effective dates of the 1995-1999 Agreement, who are State employees with continuing permanent appointment contracts, as well as professional employees who were hired on permanent track lines.

293. The NOTICE OF RIGHT TO SUE from the U. S. Equal Employment Opportunity Commission (EEOC) specifically identified the individuals listed in paragraphs 32 and 33 as the two (2) named individuals with the "right to sue" under the Age Discrimination in Employment Act (ADEA) and the Equal Pay Act (EPA).

294. The NOTICE OF RIGHT TO SUE from the U. S. Equal Employment Opportunity Commission (EEOC) specifically identified the named Plaintiffs as representatives ("on behalf of") of a specific group of State University employee(s) defined as "all academic and all professional employees over the age of forty" (Exhibit D).

295. The named Plaintiffs, Paul Zarembka and Georgiana Jungels, based on the above (#294) EEOC notice, represent all professional service employees (academic and professional as defined in the SUNY Policies) who are now, or will be forty (40) years of age or older during any time the 1995-99 Agreement between State and UUP (Defendants) is in effect.

296. Named Plaintiffs, Paul Zarembka and Georgiana Jungels, are long-standing advocates for the civil and employment rights of their State University professional colleagues and they have been elected to represent their colleagues professional concerns in a State University College Senate (Jungels) or as a campus union officer (Zarembka) and as a UUP delegate to the state-wide union (UUP) Delegate Assembly (Jungels and Zarembka).

297. Named individual Plaintiff, Professor Georgiana Jungels, has testified to the U. S. Senate Committee on Aging (September, 1987) about the failure of the EEOC to timely process age discrimination complaint(s).

298. The individual plaintiffs have regularly provided information to class members through articles and reports posted at a professional web site ("http://ourworld.compuserve.com/homepages/PZarembka/aged.htm") and members of the class wrote specific protests against "contracting-out", examples attached here in Exhibit W.

299. Some members of the class are disabled and have additional specific protection under the Americans with Disabilities Act (ADA) and Plaintiffs claim any and all rights under the ADA.

300. For example, there is no 11th Amendment immunity for the State of New York under the ADA.

301. The Federal Court has jurisdiction over the certification of the class (Federal Rule of Civil Procedure 23).

302. Based on information and belief, the Plaintiff(s), individually, and on behalf of all other similarly situated professional employee(s) in the State University of New York, claim any and all of the interference by any representative(s) of the State Executive Branch (Employer-Defendant), beginning on or about March 30, 1998 to approximately January 14, 1999, is a specious subterfuge by the State of New York to deny Plaintiff(s) their ADEA rights by unilaterally transferring the jurisdiction over a complaint filed with a Federal agency (EEOC), under the ADEA, to the State agency (NYSDHR) where the charge decision making process is under the control of the employer (State of New York Executive Branch) of the Plaintiff(s).

303. There is no immunity under the eleventh amendment when the State of New York (defendant) violates public policy ("no discrimination") or constitutionally protected rights and the ADEA law specifically states:

304. United University Professions (defendant) has a duty, implied from the defendants claim that UUP is the exclusive representative of State University employees, to serve the interests of all PSNU members without hostility or discrimination toward any member.

305. United University Professions (defendant) does not represent State University employees who file claims of illegal discrimination under Article 10.1 and 10.2 of the Agreement between the State and UUP.

306. The full extent of the discriminatory acts by the State and UUP (defendants) is unknown at this time and the Plaintiffs reserve their right to amend this complaint.

307. Plaintiffs reserve any and all specific State employment rights, benefits or privileges provided by law, rule or regulation in the 1995-1999 Agreement and under State and Federal laws.


GENERAL ALLEGATIONS

308. Plaintiffs incorporate herein by reference all the facts stated in paragraphs 1 to 307.

309. Based on information and belief, Plaintiff(s) allege the State of New York (Defendant) is a party to all of the discrimination claimed in this Complaint and the UUP (Defendant) agreed to discriminatory actions on or about September 30, 1997 by agreeing to the State's claim of a non-existent right to contract out (terminate) professional employee(s) with employment

310. The State or UUP (defendants) have deliberately misinformed numerous persons about the facts in this matter and attempted to disparage the individually named Plaintiffs in an illegal attempt to stop their filing an age discrimination lawsuit in Federal Court.

311. Defendants, individually and jointly, are parties to deliberate discrimination in every sense of the word and subject to the jurisdiction of the Court.


FIRST CLAIM

312. Plaintiffs incorporate herein by reference all the allegations made in the above numbered paragraphs (#1 to #311).

313. By agreeing to contract out (terminate) arbitrarily any State University employee with a continuing or permanent appointment status, who is forty (40) years of age or older, with no provisions for continued benefits, including but not limited to health insurance, prescription drugs and State retirement benefits, the State and UUP (defendants) violated the Age Discrimination in Employment Act of 1976, 29 U.S.C. (Section 621) et seq as amended.

SECOND CLAIM

314. Plaintiffs incorporate herein by reference all the allegations made previously in this discrimination complaint as if fully stated herein, specifically all the allegations made in paragraphs numbered #1 to #313.

315. By agreeing to unequal conditions for equal employees, the defendants violated the fourteenth Amendment of the U. S. Constitution.

THIRD CLAIM

316. Plaintiffs incorporate herein by reference all the allegations made previously in this discrimination complaint as if fully stated herein specifically all the allegations made in paragraphs numbered #1 to #315.

317. By agreeing to contract out (terminate) employees forty (40) years of age or over, without re-dressing long-standing salary disparties, the Defendants violated the ADEA and OWBPA and the EPA.

FOURTH CLAIM

318. Plaintiffs incorporate herein by reference all the allegations made previously in this discrimination complaint as if fully stated herein, specifically all the allegations made in paragraphs numbered #1 to #317.

319. By back-dating the 1995-99 Agreement to September, 1981, the State and UUP are liable for any and all unequal compensation from 1981 to 1999 under the Equal Pay Act (EPA).

FIFTH CLAIM

320. Plaintiffs incorporate herein by reference all the allegations made previously in this discrimination complaint as if fully stated herein, specifically all the allegations made in paragraphs numbered #1 to #319.

321. By forcing protected Plaintiffs to self-terminate continuing appointments and due process rights, Defendants deprived Plaintiff(s) of their constitutionally protected interests, without due process of law, in violation of the 14th Amendment to the United States Constitution, 42 U.S.C.1983, the AAUP public policy of tenure in higher education, and Plaintiffs'; right to work in an environment free from employer hostility.

SIXTH CLAIM

322. Plaintiffs incorporate herein by reference all the allegations made previously in this discrimination complaint as if fully stated herein, specifically all the allegations made in paragraphs numbered #1 to #321.

323. By continuously demanding that disabled employees do work that others were not forced to do, State defendants, their agents, servants, and/or employees, by their conduct herein alleged, intentionally, willfully and with justification, violated the Americans with Disabilities Act (1990).

SEVENTH CLAIM

324. Plaintiffs incorporate herein by reference all the allegations made previously in this discrimination complaint as if fully stated herein, specifically all the allegations made in paragraphs numbered #1 to #323.

325. Plaintiffs claim all their rights as persons who are protected against any and all age discrimination and respectfully request the Court apply the principles held by the U. S. Supreme Court in the case recently decided (on or about January 26, 1998) entitled "Oubre v. Entergy" .

326. By forcing some Plaintiffs to sign self terminating contacts with a "waiver" of ADEA rights, the Defendants violated ADEA rights for any and all Plaintiffs who were forced to nullify life-time contracts and ADEA rights.

EIGHTH CLAIM

327. Plaintiffs incorporate herein by reference all the allegations made previously in this discrimination complaint as if fully stated herein, specifically all the allegations made in paragraphs numbered #1 to 326.

328. By misleading Plaintiffs regarding the actual meaning of the Article 36 (Contracting-Out) provisions and jointly mis-representing the actual intent of legislative bills reqested by State Governor to implement contracting-out, the State and UUP delibrately colluded to mis-represent information to the People of the State of New York and violated Federal laws, including but not limited to the Racketeer Influenced & Corrupt Organizations Act ("RICO"), 18 U.S.C. 1961, et seq.

PRAYER FOR RELIEF

WHEREFORE, the Plaintiffs, individually and on behalf of all others similarly situated, demand the following relief:

DATED:
May 6, 1999
Buffalo, New York

_______________________________________
BY:
Paul Zarembka, pro se
Date of Birth: April 17, 1942
State Line No. 70198
151 Fordham Drive
Buffalo, New York 14216
(716) 875-1698

and


_______________________________________
BY:
Georgiana Jungels, pro se
Date of Birth: March 29, 1939
State Line No. 21019
745 West Delavan Avenue
Buffalo, New York 14222
(716) 886-2083

and

_______________________________________
BY:
Paul Zarembka and Georgiana Jungels, pro se,
on behalf of all others similarly situated
P. O. Box 1077
Buffalo, NY 14213

State of New York
County of Erie
City of Buffalo
Sworn to and before me this 6th day of May, 1999