Donohue et al v. Madison et al

Filing 180

MEMORANDUM-DECISION and ORDER granting 162 Motion for Partial Summary Judgment *Trial date for remaining claim will be set upon the resolution of pending motion for class certification*. Signed by Senior Judge Frederick J. Scullin, Jr on 7/31/2020. (bjw, )

Case 1:13-cv-00918-FJS-CFH Document 180 Filed 07/31/20 Page 1 of 16

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

DANNY DONOHUE, as President of the
Civil Service Employees Association, Inc.,
Local 1000, AFSCME, AFL-CIO; CIVIL
SERVICE EMPLOYEES ASSOCIATION,
INC., LOCAL 1000, AFSCME, AFL-CIO;
WILLIAM COLEMAN, individually and on
behalf of all others similarly situated; WILLIAM
MILLER, individually and on behalf of all
others similarly situated; JOHN METZGIER,
individually and on behalf of all others similarly
situated; and JACK WIEDEMAN, individually
and on behalf of all others similarly situated,
Plaintiffs,
v.

1:13-CV-918
(FJS/CFH)
(Lead Case)

THOMAS J. MADISON, JR., in his official capacity
as Executive Director of the New York State Thruway
Authority and the New York State Canal Corporation;
CARLOS MILLAN, in his official capacity as Director
of Employee Relations and Employee Safety, New York
State Thruway Authority and New York State Canal
Corporation; BRIAN U. STRATTON, in his official capacity
as Director of the New York State Canal Corporation;
HOWARD P. MILSTEIN, in his official capacity as Chairman
of New York State Thruway/Canal Corporation Board of
Directors; E. VIRGIL CONWAY, in his official capacity as
Board Member of the New York State Thruway/Canal
Corporation Board of Directors; NEW YORK STATE
THRUWAY AUTHORITY; NEW YORK STATE CANAL
CORPORATION; DONNA J. LUH, in her official capacity
as Vice-Chairman of New York State Thruway/Canal
Corporation Board of Directors; RICHARD N. SIMBERG,
in his official capacity as Board Member of the New York State
Thruway/Canal Corporation Board of Directors; BRANDON
R. SALL, in his official capacity as Board Member of the New
York State Thruway/Canal Corporation Board of Directors; J.
DONALD RICE, JR., in his official capacity as Board Member of
the New York State Thruway/Canal Corporation Board of
Directors; and JOSE HOLGUIN-VERAS, in his official capacity
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Case 1:13-cv-00918-FJS-CFH Document 180 Filed 07/31/20 Page 2 of 16

as Board Member of the New York State Thruway/Canal
Corporation Board of Directors,
Defendants.

DANNY DONOHUE, as President of the
Civil Service Employees Association, Inc.,
Local 1000, AFSCME, AFL-CIO; CIVIL
SERVICE EMPLOYEES ASSOCIATION,
INC., LOCAL 1000, AFSCME, AFL-CIO;
JOHN DELLIO, individually and on behalf
of all others similarly situated; MICHAEL
BOULERIS, individually and on behalf of
all others similarly situated; MAUREEN
ALONZO, individually and on behalf of all
others similarly situated; and MARCOS
DIAMANTATOS, individually and on behalf
of all others similarly situated,
Plaintiffs,
v.

1:13-CV-920
(FJS/CFH)

THOMAS J. MADISON, JR., individually and in his
official capacity as Executive Director of the New York
State Thruway Authority and the New York State Canal
Corporation; CARLOS MILLAN, in his official capacity as
Director of Employee Relations and Employee Safety, New
York State Thruway Authority and New York State Canal
Corporation; HOWARD P. MILSTEIN, individually and in his
official capacity as Chairman of New York State Thruway/Canal
Corporation Board of Directors; E. VIRGIL CONWAY, in his
official capacity as Board Member of the New York State
Thruway/Canal Corporation Board of Directors; NEW YORK
STATE THRUWAY AUTHORITY; DONNA J. LUH, in her
official capacity as Vice-Chairman of New York State Thruway/
Canal Corporation Board of Directors; RICHARD N. SIMBERG,
in his official capacity as Board Member of the New York State
Thruway/Canal Corporation Board of Directors; BRANDON R.
SALL, in his official capacity as Board Member of the New York
State Thruway/Canal Corporation Board of Directors; J. DONALD
RICE, JR., in his official capacity as Board Member of the New York
State Thruway/Canal Corporation Board of Directors; and JOSE
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HOLGUIN-VERAS, in his official capacity as Board Member of
the New York State Thruway/Canal Corporation Board of Directors,
Defendants.

NEW YORK STATE THRUWAY
EMPLOYEES LOCAL 72; JOSEPH
E. COLOMBO; GEORGE E. SAVOIE;
and DAVID M. MAZZEO, individually
and on behalf of all others similarly situated,
Plaintiffs,

v.

1:14-CV-1043
(FJS/CFH)

NEW YORK STATE THRUWAY AUTHORITY;
HOWARD P. MILSTEIN, individually and in his
official capacity as Chairman of the New York State
Thruway Authority; THOMAS J. MADISON, JR.,
individually and in his official capacity as Executive
Director of the New York State Thruway Authority;
THOMAS RYAN, in his official capacity; E. VIRGIL
CONWAY, in his official capacity as Board Member
of the New York State Thruway Authority; JOHN F.
BARR, in his official capacity as Director of Administrative
Services of the New York State Thruway Authority;
JOHN M. BRYAN, in his official capacity as Chief
Financial Officer and Treasurer of the New York State
Thruway Authority; DONNA J. LUH, in her official
capacity as Vice-Chair of the New York State Thruway
Authority Board of Directors; J. DONALD RICE, JR.,
in his official capacity as Board Member of the New
York State Thruway Authority; BRANDON R. SALL,
in his official capacity as Board Member of the New York
State Thruway Authority; RICHARD N. SIMBERG, in
his official capacity as Board Member of the New York
State Thruway Authority; and JOSE HOLGUIN-VERAS,
in his official capacity as Board Member of the New York
State Thruway Authority,
Defendants.

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APPEARANCES

OF COUNSEL

CIVIL SERVICES EMPLOYEES
ASSOCIATION, INC.
143 Washington Avenue
P.O. Box 7125, Capitol Station
Albany, New York 12224
Attorneys for Plaintiffs Danny
Donohue, Civil Service Employees
Association, Inc., Local 1000, AFSCME,
AFL-CIO, William Coleman, William
Miller, John Metzgier, Jack Wiedeman,
John Dellio, Michael Bouleris, Maureen
Alonzo, and Marcos Diamantatos

AARON E. KAPLAN, ESQ.
JENNIFER C. ZEGARELLI, ESQ.

LIVINGSTON ADLER PULDA
MEIKLEJOHN & KELLY
557 Prospect Avenue
Hartford, Connecticut 06205
Attorneys for Plaintiffs Danny
Donohue, Civil Service Employees
Association, Inc., Local 1000, AFSCME,
AFL-CIO, William Coleman, William
Miller, John Metzgier, Jack Wiedeman,
New York State Thruway Employees
Local 72, Joseph E. Colombo, George E.
Savoie, and David M. Mazzeo

NICOLE M. ROTHGEB, ESQ.
GREGG D. ADLER, ESQ.

WHITEMAN, OSTERMAN &
HANNA LLP
One Commerce Plaza
Suite 1900
Albany, New York 12260
Attorneys for Defendants Carlos
Millan, Brian U. Stratton, E. Virgil
Conway, Richard N. Simberg, New
York State Thruway Authority, New
York State Canal Corporation, Donna
J. Luh, Brandon R. Sall, J. Donald Rice,
Jr., Jose Holguin-Veras, Howard P.
Milstein, Thomas J. Madison, Jr., Thomas
Ryan, and John F. Barr

BETH A. BOURASSA, ESQ.
CHRISTOPHER W. MEYER, ESQ.
MONICA R. SKANES, ESQ.
NORMA G. MEACHAM, ESQ.

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CAPEZZA HILL, LLP
30 South Pearl Street
Suite P-110
Albany, New York 12207
Attorneys for Defendant Thomas J.
Madison, Jr.

BENJAMIN W. HILL, ESQ.

DREYER BOYAJIAN LLP
75 Columbia Street
Albany, New York 12210
Attorneys for Defendant Thomas J.
Madison, Jr.

WILLIAM J. DREYER, ESQ.

E. STEWART JONES HACKER
MURPHY, LLP
28 Second Street
Troy, New York 12180
Attorneys for Defendant John M. Bryan

E. STEWART JONES, JR., ESQ.

SCULLIN, Senior Judge
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Pending before the Court is Defendants’ motion for partial summary judgment
requesting that the Court dismiss Plaintiffs’ Equal Protection claim, see Dkt. No. 162, brought
pursuant to Rule 56 of the Federal Rules of Civil Procedure. 1 As discussed below, Defendants
filed this motion in response to a Mandate from the Second Circuit. See Dkt. No. 154. 2

1

All citations referencing docket numbers correspond with the docket in the lead case, 1:13CV-918, unless otherwise noted.
2

In a Memorandum-Decision and Order dated April 14, 2017, the Court granted Defendants’
prior summary judgment motion with respect to Plaintiffs’ First Amendment retaliation claim
and denied that motion with respect to Plaintiffs’ First Amendment targeting claim. See Dkt.
No. 142.
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II. BACKGROUND AND PROCEDURAL HISTORY 3
Plaintiffs in these consolidated actions were all union-represented employees of the New
York State Thruway Authority and New York State Canal Corporation (collectively referred to
as “Defendants”) whose positions were eliminated in April of 2013 when Defendants instituted
a reduction in force (“RIF”) in the face of significant financial pressure and an increased debt
burden. See generally Dkt. No. 1, Class Compl., at ¶¶ 5-37, 48-54; see also Dkt. No. 162-2,
Defs’ Stmt. of Facts, at ¶¶ 57-62. Defendants implemented several cost-saving measures prior
to eliminating Plaintiffs’ positions, including withholding a series of salary increases for
managerial/confidential (“M/C”) employees who were not affiliated with Plaintiffs’ unions. See
Dkt. No. 162-2 at ¶¶ 63-67.4 Defendants estimated that those steps saved them approximately
$6.4 million; but, despite those savings, Defendants determined that they needed to reduce labor
costs further. See id. at ¶ 74. 5
Because salaries and benefits made up approximately 95% of Defendants’ operating
budget, Defendants sought concessions from unionized workers when their collective
bargaining agreements (“CBAs”) expired in June of 2012. See id. at ¶¶ 112, 117, 157.
Defendants’ apparent strategy was to leverage the layoffs to encourage Plaintiffs’ unions to

3

The Court relies on the facts as set forth in Defendants’ Statement of Facts, see Dkt. No. 1622; but it includes footnotes where necessary to further provide Plaintiffs’ position as expressed
in Plaintiffs’ Response to Defendants’ Statement of Facts, see Dkt. No. 171. The Court finds
that none of the material facts cited in this section are in dispute.

4

Plaintiffs note that Defendants can unilaterally change the M/C employees’ salaries and
benefits at any time; and, thus, Plaintiffs assert that the M/C employees were not entitled to
raises. Notwithstanding this, Plaintiffs acknowledge that the M/C employees did not receive
those payments. See Dkt. No. 171 at ¶¶ 63-67.

5

Plaintiffs argue that this is not a “savings” because Defendants did not have the obligation to
spend that money on M/C employee salary increases or benefits, but they do not dispute the
$6.4 million figure. See Dkt. No. 171 at ¶ 74.
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agree to a new CBA that would require unionized employees to pay a greater portion of their
health insurance costs. See id. at ¶¶ 129; 142, 149. Plaintiffs and Defendants could not agree
on a new CBA; and, thus, Defendants executed the RIF as planned. See generally id. at ¶¶ 159167, 172-73.
None of the M/C employees’ positions were eliminated as part of the RIF. See id. at
¶ 192.6 According to Plaintiffs, Defendants determined the number of positions to lay off under
the RIF plan by “apportioning the amount of savings desired … amongst the four bargaining
units based upon the number of full-time employees in each bargaining unit. The amount of
savings sought from a bargaining unit was then divided by the value of the average salary plus
fringe benefit[s] of a bargaining unit member.” See Dkt. No. 171, Pls’ Response to Defs’ Stmt.
of Facts, at ¶ 175. The department heads were then directed to identify which positions to
eliminate from their respective departments. See id. at ¶ 176. In some instances, after full-time
positions were abolished, seasonal or part-time employees carried out the work at a reduced
cost; and some union member Plaintiffs were re-hired as seasonal or part-time employees to
retain their union membership status. See Dkt. No. 162-2 at ¶ 177. In total, the RIF saved
Defendants at least $9 million in 2013. See id. at ¶ 196.
Following the RIF, Plaintiff Civil Service Employees Association, Inc., Local 1000,
AFSCME, AFL-CIO filed two actions against Defendants and a number of executives and
board members in their individual and official capacities for violations of state-law and the First
Amendment, Equal Protection Clause, Due Process Clause, and the Contract Clause of the
United States Constitution. See generally Dkt. No. 1; see also No. 1:13-CV-920, Dkt. No. 1.

6

Plaintiffs dispute the reason why the M/C positions were not eliminated but concede that “[n]o
M/C positions were eliminated in the RIF…” See Dkt. No. 171 at ¶ 192.
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Almost a year later, Plaintiff New York State Thruway Employees Local 72 filed an action
against Defendant Thruway Authority and a number of the same executives in their individual
and official capacities. See No. 1:14-CV-1043, Dkt. No. 2. Plaintiffs represented members of
each of the collective bargaining units and agency-fee payors (“AFPs”), who are individuals
who occupy positions in the bargaining units but are not union members. 7 The Court
consolidated these three actions on October 2, 2014. See Dkt. No. 45.
Defendants then filed a motion for summary judgment, and Plaintiffs cross-moved for
summary judgment in part. See Dkt. Nos. 114, 116, 120. Plaintiffs chose not to pursue their
Due Process, Contract Clause, and state-law claims, so the Court dismissed those claims in
April of 2017. See Dkt. No. 142 at 23 (“April 2017 Order”) (citing Dkt. No. 132-6 at 8 n.1).
Thus, the Court only examined Plaintiffs’ First Amendment and Equal Protection claims, which
it found were “duplicative,” and analyzed the claims together. See id. at 9 n.5. In its April 2017
Order, the Court granted Defendants’ motion for summary judgment with respect to Plaintiffs’
First Amendment retaliation claim and denied it with respect to Plaintiffs’ First Amendment
targeting claim. See id. at 23. The Court also referred Plaintiffs’ joint motion for class
certification, see Dkt. No. 97, to Magistrate Judge Hummel, in front of whom that motion—
corrected, renewed, and amended— see Dkt. No. 165, is still pending.
In response to the Court’s April 2017 Order, Defendants moved for reconsideration, or,
in the alternative, to certify an issue to the Second Circuit pursuant to 28 U.S.C. § 1292(b). See
Dkt. No. 144. The Court denied Defendants’ motion but certified to the Second Circuit the

7

Defendants argue that AFPs affirmatively decided not to join the union, whereas Plaintiffs
contend that they have not filled out a membership card for the union. Under either view,
however, the parties agree that AFPs are not union members. See Dkt. No. 171-1, Pls’
Memorandum in Opposition, at ¶ 24.
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following question: “Under [State Emp. Bargaining Agent Coalition v. Rowland, 8] are ‘unionrepresented individuals during the bargaining process’ – consisting of both union members and
agency shop payors – a protected class, such that employment decisions based on employees’
union representation during collective bargaining are subject to strict scrutiny?” See Dkt. No.
152 (quotation omitted).
The Second Circuit granted Defendants’ motion for leave to appeal an interlocutory
order and to stay the district court proceedings pending the appeal. See Dkt. No. 154. On
November 18, 2019, the Second Circuit issued a Mandate, in which it held, “AFPs do not have
a First Amendment right to freedom of association merely because they are represented by a
union during collective bargaining.” See Dkt. No. 156, Mandate, at 16 (footnote omitted).
Notably, the parties stipulated to dismissing the AFPs’ claims after the Second Circuit issued
this decision. See Dkt. No. 163. Thus, the only remaining Plaintiffs are Defendants’ employees
who were union members at the time of the RIF.
With respect to the union member Plaintiffs’ First Amendment claims, the Second
Circuit held, “[i]f [Defendants] terminated the union members because of their union
membership—a factual question the District Court decided to let a jury determine—then strict
scrutiny applies to its employment decision. We therefore affirm the District Court’s decision
as it applies to those Plaintiffs who are union members.” See Dkt. No. 156 at 17. However, the
Second Circuit noted that the Court analyzed Plaintiffs’ First Amendment targeting claim
together with their Equal Protection claim because it viewed them as “rais[ing] identical
issues.” See id. at 13 n.2 (citing Dkt. No. 142 at 9). The Second Circuit remarked that the
Court’s holding relied entirely on its interpretation of Rowland; and, since the Second Circuit

8

718 F.3d 126 (2d Cir. 2013).
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found that, under Rowland, employees do not enjoy First Amendment protections merely
because they are represented by a union during collective bargaining, it did not address whether
Plaintiffs’ termination violated the Equal Protection Clause. See id. Thus, the Second Circuit
directed the Court to “revisit the Plaintiffs’ Equal Protection claim” on remand in light of the
findings in the Mandate. See id.
Therefore, pending before the Court is Defendants’ motion for partial summary
judgment requesting that the Court dismiss Plaintiffs’ Equal Protection claim, which is based on
the theory of selective treatment. See Dkt. No. 162.
III. DISCUSSION 9
To prevail on an Equal Protection claim based on the theory of selective treatment, “a
plaintiff must prove that ‘(1) the person, compared with others similarly situated, was
selectively treated, and (2) the selective treatment was motivated by an intention to discriminate
on the basis of impermissible considerations, such as race or religion, to punish or inhibit the
exercise of constitutional rights, or by a malicious or bad faith intent to injure the person.’” Hu
v. City of New York, 927 F.3d 81, 91 (2d Cir. 2019) (quoting Zahra v. Town of Southold, 48
F.3d 674, 683 (2d Cir. 1995) (quoting FSK Drug Corp. v. Perales, 960 F.2d 6, 10 (2d Cir.
1992))). An Equal Protection claim based on the theory of selective treatment is often referred
to as a LeClair type claim, having first been articulated in the Second Circuit in LeClair v.
Saunders, 627 F.2d 606, 609-10 (2d Cir. 1980). See id.
In Hu, the Second Circuit recognized that “’[t]here is no precise formula to determine
whether an individual is similarly situated to comparators.’” Id. at 97 (quotation and other

9

The Court assumes the parties’ familiarity with the relevant standard of review for a motion
for summary judgment and will not repeat that standard here.
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citation omitted). “[T]he question of ‘whether parties are similarly situated is [generally] a factintensive inquiry’ that depends heavily on the particular context of the case at hand.” Id.
(quoting Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d Cir. 2006)) (other citations omitted).
In the Title VII context, which is analogous to Plaintiffs’ Equal Protection claim here, courts
have held that employees may be similarly situated in “all material respects” when “the plaintiff
and the putative comparator ‘were subject to the same workplace standards.’” Irons v. BedfordStuyvesant Cmty. Legal Servs., No. 13-CV-4467 (MKB), 2015 WL 5692860, *11 (E.D.N.Y.
Sept. 28, 2015) (quoting [Brown v. Daikin Am. Inc., 756 F.3d 219, 230 (2d Cir. 2014)]); (citing
Ruiz [v. Cnty. of Rockland], 609 F.3d [486,] 493-94 [(2d Cir. 2010)] (“An employee is similarly
situated to co-employees if they were (1) ‘subject to the same performance evaluation and
discipline standards’ and (2) ‘engaged in comparable conduct.’” (quoting Graham [v. Long
Island R.R.], 230 F.3d [34,] 40 [(2d Cir. 2000)])).
Here, Plaintiffs assert a LeClair type selective enforcement Equal Protection claim against
Defendants, arguing that they were treated differently from the similarly situated non-union
M/C employees because they exercised their constitutionally protected right to assemble as a
union and were laid off for doing so. See generally Dkt. No. 171-1, Pls’ Memorandum in
Opposition, at 17-23. Specifically, Plaintiffs contend that they were similarly situated to the
M/C employees because “[m]any M/C employees were in the same job titles as Plaintiff union
members employees, received similar pay, and benefits, including health insurance, and the
same retirement pension.” See id. at 19. Thus, Plaintiffs assert, there is no cognizable
difference between the M/C employees and Plaintiffs in union positions who were laid off; and,
at the very least, Plaintiffs argue that there is an issue of material fact as to whether the union

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member Plaintiffs are similarly situated to the M/C employees who were spared the effects of
the RIF. See id.
Defendants contend that the Court should not even reach the second element of the claim—
whether Plaintiffs were selectively treated because of their union membership—since they
cannot satisfy either of the prongs of the first element, i.e., that they were similarly situated to
non-union members and that they were treated differently from those non-union employees.
See generally Dkt. No. 162-3, Defs’ Memorandum in Support. at 13-20. Defendants assert that,
“because of the entirely distinct laws and rules controlling an employer’s determinations
concerning terms of employment for union members, union members are never similarly
situated to non-member employees.” See id. at 15 (citing Donnell v. Lee Cnty. Port Authority,
509 F. App’x 903 (11th Cir. 2013) (summary order); Sacramento Cnty. Retired Empls. Ass’n v.
Cnty. of Sacramento, 975 F. Supp. 2d 1150 (E.D. Cal. 2013); Johnson v. Pepsi Cola Gen.
Bottlers, Inc., No. 04-C-325, 2005 WL 1629895, *7 (E.D. Wis. July 6, 2005)). Furthermore,
Defendants argue that Plaintiffs and the non-union member M/Cs are not similarly situated in
the following two respects: (1) they have profoundly different legal positions, i.e., the
substantial legal restrictions placed on Defendants’ dealings with union member Plaintiffs,
which do not apply to all M/Cs; and (2) there are material factual differences, such as that the
M/Cs had already contributed to Defendants’ cost savings while Plaintiffs had not contributed
any costs savings, as a result of their differing legal protections that they enjoyed by statute and
under the CBAs. See Dkt. No. 177, Defs’ Reply, at 7.
Defendants correctly note that Plaintiffs do not point to any facts to support their
primary contention that they had the same job titles as M/C employees, received similar pay and
benefits, or that they had the same retirement pension. See id. at 7 n.1; see also Dkt. No. 171-1

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at 19. After reviewing the evidence in this case, the Court finds that Plaintiffs and the M/C
employees are similarly situated only in that both groups of employees collect New York State
retirement benefits and pensions as set out in state law. See Dkt. No. 171 at ¶¶ 33-34. In
addition, both groups of employees receive health insurance under the same plan; but, with the
exception of workers hired prior to 2005, the workers were responsible to pay different amounts
for those benefits. See id. at ¶¶ 37-48. 10 Union member Plaintiffs paid only 10% of their
medical costs, whereas M/C employees paid 20%. See id. Notably, these benefits and the
employees’ salaries were determined by different mechanisms.
Collective bargaining units represented the union member Plaintiffs; and, thus,
Defendants could not alter their salary or benefits at-will and had to wait until the next
appropriate time to negotiate changes with the union representatives. See id. at ¶¶ 9-23; see
also N.Y. Civ. Serv. L. § 209-a(1)(e). The M/C employees, who make up 6% of Defendant

10

Plaintiffs “deny” some of these facts as written in Defendants’ Statement of Facts and reword
them, but they do not substantively change the facts or statistics in their Response. See Dkt. No.
171 at ¶¶ 40, 42, 44, 46. Plaintiffs also occasionally dispute dates that do not materially change
the facts or circumstances. For example, with respect to this contention, paragraph 40 in
Defendants’ Statement of Facts provides the following:
“40. Only those eligible Teamsters bargaining unit employees who were hired
on or after October 20, 2005 contribute 10% of the Empire Plan individual
premium and 25% of the Empire Plan family premium. Barr Aff. ¶ 35(a) & Ex. B,
Teamsters Agreement § 10.A, pp. 22-23; Latko Dep. Tr. 61-62, 238-239.”
Plaintiffs responded with the following:
“Deny. Teamsters bargaining unit employees hired on or after October 21, 2005,
contribute to health insurance premiums at the rates of 10% for individual
coverage and 25% of the additional cost for family coverage. Zegarelli Dec., Exh.
11 (Steele Dep.) p. 21; Exh. 16 (NYS Thruway Authority Pre-Implementation
Audit of Revised 2013 Health Insurance Rates, dated Dec. 13, 2012).”
See Dkt. No. 171 at ¶ 40 (footnote omitted).
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Thruway Authority’s total employees, could not be part of a collective bargaining unit due to
the nature of their positions. See Dkt. No. 171 at ¶ 29; see also N.Y. Civ. Serv. L. § 214. Thus,
Defendants could set the M/C employees’ salaries and benefits and could unilaterally change
them whenever they wanted. See Dkt. No. 171 at ¶ 30; see also McRae v. New York State
Thruway Auth., 687 F. App’x 22, 24 (2d Cir. 2017) (summary order).
The evidence in the record shows no correlation between Plaintiffs’ and the M/C
employees’ salaries. For example, the parties agree that, by 2012, some M/C supervisors were
earning less than some of their subordinates who were bargaining unit members. See Dkt. No.
171 at ¶ 71. Plaintiffs assert that there is no evidence explaining the differences in salaries, and
that greater tenure or special skills and responsibilities may be the reason for these pay
disparities. See id. Further, Plaintiffs note that in 2013 the average salaries of M/C employees
were greater than the average salaries of those in the four union bargaining units. See id.
The primary comparable difference in Plaintiffs’ and the M/C employees’ salaries is
how often they were subject to increases, as well as other additional payments. From 2008
through 2012, Defendants unilaterally withheld salary increases, step increases, and longevity
payments from M/C employees. See id. at ¶¶ 63-67. 11 For example, Defendants deferred and
withheld the M/C employees’ 3% salary increase in 2009 and 2010, their 4% salary increase in
2011, and step increases and longevity payments in 2012. See id. Meanwhile, because of the
CBAs and the Civil Service Law, Defendants could not change Plaintiffs’ salaries or benefits

11

Plaintiffs dispute that Defendants had actually scheduled to give the M/C employees salary
increases, step increases, or longevity payments or that they were otherwise entitled to those
payments because Defendants can unilaterally change the M/C employees’ salaries and benefits
at any time. Notwithstanding this, Plaintiffs acknowledge that the M/C employees did not
receive those payments. See Dkt. No. 171 at ¶¶ 63-67.
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and each of those members received their salary increases, step increases, and longevity
payments as promised for those years. See id. at ¶¶ 69-70. Thus, there is no evidence that
Plaintiffs and the M/C employees received the same salaries or that they received the same
annual increases and other payments.
Finally, there is also no evidence in the record that the M/C employees had the same job
titles or duties as the union member Plaintiffs or that they were subject to the same workplace
standards despite Plaintiffs many statements to the contrary. See generally id. Accordingly, the
Court concludes that, when relying on the available evidence, no reasonable factfinder could
find that Plaintiffs and the M/C employees were “similarly situated” in “all material respects.”
Thus, the Court grants Defendants’ motion for summary judgment with respect to Plaintiffs’
Equal Protection claim.12

12

Because the Court finds that Plaintiffs have failed to prove the first prong of their Equal
Protection claim, i.e., that they were similarly situated to the non-union member M/C
employees, the Court does not reach the merits of the parties’ arguments with respect to the
second prong of the Equal Protection analysis, i.e., whether Defendants discriminated against
Plaintiffs because of their union membership and which level of scrutiny—strict or rational
basis review—applies. Relatedly, since the Court finds that Plaintiffs were not similarly situated
to the M/C employees, the Court does not reach the merits of the issue of whether Plaintiffs’
Equal Protection claim coalesces with their already-dismissed First Amendment retaliation
claim.
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Case 1:13-cv-00918-FJS-CFH Document 180 Filed 07/31/20 Page 16 of 16

IV. CONCLUSION
After carefully considering the entire file in this matter, the parties’ submissions, and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Defendants’ motion for partial summary judgment, see Dkt. No. 162, is
GRANTED 13

IT IS SO ORDERED.
Dated: July 31, 2020
Syracuse, New York

13

The Court will set a trial date for this matter with regard to the remaining claim, i.e.,
Plaintiffs’ First Amendment targeting claim, after the pending motion for class certification is
resolved.
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