Donohue et al v. Madison et al

Filing 194

MEMORANDUM-DECISION and ORDER denying 181 Motion for Reconsideration of 180 Memorandum-Decision and Order on Motion for Summary Judgment.. Signed by Senior Judge Frederick J. Scullin, Jr on 8/19/2021. (bjw, )

Case 1:13-cv-00918-FJS-CFH Document 194 Filed 08/19/21 Page 1 of 12

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.

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

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

Case 1:13-cv-00918-FJS-CFH Document 194 Filed 08/19/21 Page 2 of 12

Directors; and JOSE HOLGUIN-VERAS, in his official capacity
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
HOLGUIN-VERAS, in his official capacity as Board Member of
the New York State Thruway/Canal Corporation Board of Directors,

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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.

APPEARANCES

OF COUNSEL

CIVIL SERVICES EMPLOYEES
ASSOCIATION, INC.
143 Washington Avenue
P.O. Box 7125, Capitol Station

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

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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
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,
John Dellio, Michael Bouleris, Maureen
Alonzo, Marcos Diamantatos, 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 Plaintiffs' joint motion for reconsideration of the Court's July
31, 2020 Memorandum-Decision and Order granting Defendants partial summary judgment
("July MDO"), brought pursuant to Fed. R. Civ. P. 60(b) and Local Rule 60.1. 1 See Dkt. No.
181.

1

Although Plaintiffs cited Rule 59(e) of the Federal Rules of Civil Procedure as the basis for
their motion for reconsideration, that rule does not apply here because the Court has not entered
a judgement in this matter. Rule 60(b) and Local Rule 60.1 (previously Local Rule 7.1(g)) serve
as the proper basis for Plaintiffs' motion. However, the standards of review for Rules 59(e) and
60(b) are the same; and, thus, the Court will analyze this motion as if Plaintiffs had cited Rule
60(b).
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II. PROCEDURAL HISTORY
In April 2013, Defendants New York State Thruway Authority ("Thruway") and New
York State Canal Corporation ("Canal") instituted a reduction in force ("RIF"), which resulted in
the termination of 198 total union-represented employees between Plaintiffs Civil Service
Employees Association, Inc., AFSCME, AFL-CIO ("CSEA") and New York State Thruway
Employees Local 72 ("Teamsters"). See Dkt. No. 165-2 at 3-4. In response, on August 2, 2013,
Plaintiff CSEA commenced two actions on behalf of its members against Defendant Thruway
and Defendant Canal for violations under state law and the First Amendment, Equal Protection
Clause, Due Process Clause, and the Contract Clause of the United States Constitution. See Dkt.
No. 1; see also Donohue v. Madison, No. 1:13-CV-920, Dkt. No. 1. On June 17, 2014, Plaintiff
Teamsters commenced an action on behalf of its members against Defendant Thruway. See New
York State Thruway Employees Local 72 v. New York State Thruway Authority, No. 1:14-CV1043, Dkt. No. 2. On October 2, 2014, the Court consolidated the three actions and designated
Case No. 1:13-CV-918 as the Lead Case. See Dkt. No. 45.
On May 31, 2016, Defendants filed a motion for summary judgment, to which Plaintiffs
responded by filing a cross-motion for partial summary judgment. See Dkt. Nos. 114, 116, 120.
On April 14, 2017, the Court issued an Order dismissing Plaintiffs' Due Process, Contract
Clause, and state-law claims because they chose not to pursue those claims. See Dkt. No. 142 at
23. Additionally, in its April 14, 2017 Order, the Court granted Defendants' motion for summary
judgment as to Plaintiffs' First Amendment retaliation claim and denied Defendants' motion for
summary judgment as to Plaintiffs' First Amendment targeting claim. See id. Defendants then
moved for the Court to reconsider its decision or certify the issue to the Second Circuit, see Dkt.
No. 144, to which the Court responded by denying the motion to reconsider but certifying the
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issue to the Second Circuit, see Dkt. No. 152. The question that the Court certified was "[u]nder
[State Emp. Bargaining Agent Coalition v. Rowland, 718 F.3d 126 (2d Cir. 2013)] 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.
The Second Circuit granted Defendants' motion for leave to appeal an interlocutory order,
see Dkt. No. 154; and, on November 18, 2019, it held that "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 at 16. The parties then stipulated to dismiss the AFPs' claims; and,
thus, Defendants' employees who were union members at the time of the RIF are the only
individual Plaintiffs who remain. See Dkt. No. 160. As to the union-member Plaintiffs' First
Amendment claims, the Second Circuit affirmed this Court's decision as applied to the union
member Plaintiffs, holding that strict scrutiny applied to Defendants' decision to terminate the
union members if they did so based on the employees' union membership. See Dkt. No. 156 at
17. The Second Circuit further noted the Court's view that Plaintiffs' First Amendment targeting
claim and Equal Protection claim raise the same issues; and, therefore, in light of the Court's
heavy reliance on its interpretation of Rowland, 2 it instructed the Court to revisit Plaintiffs' Equal
Protection claim on remand. See id. at 13 n.2.
On January 15, 2020, Defendants filed a motion for partial summary judgment to dismiss
Plaintiffs' Equal Protection claim, see Dkt. No. 162, which the Court granted, finding that, "when

2

Rowland held that employees do not automatically enjoy First Amendment protections by
having union representation during collective bargaining. See id. at 13 n.2.
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relying on the available evidence, no reasonable factfinder could find that Plaintiffs and the
M[anagerial]/C[onfidential] employees were 'similarly situated' in 'all material respects[,]'" see
Dkt. No. 180 at 15. Pending before the Court is Plaintiffs' joint motion for reconsideration of the
July MDO, brought pursuant to Rule 60 of the Federal Rules of Civil Procedure and Local Rule
60.1. See Dkt. No. 181.

III. DISCUSSION
A. Standard of review
Rule 60 of the Federal Rules of Civil Procedure provides that a party may file a motion
for relief from a final judgment, order, or proceeding to correct "mistake, inadvertence, surprise,
or excusable neglect . . . [or] any other reason that justifies relief." Fed. R. Civ. P. 60(b). When
applying Rule 60(b), "the Northern District 'recognizes only three possible grounds upon which
motions for reconsideration may be granted; they are (1) an intervening change in controlling
law, (2) the availability of new evidence not previously available, or (3) the need to correct a
clear error of law or prevent manifest injustice.'" Gaston v. Coughlin, 102 F. Supp. 2d 81, 83
(N.D.N.Y. 2000) (quoting In re C-TC 9th Ave. Partnership, 182 B.R. 1, 3 (N.D.N.Y. 1995)
(McAvoy, C.J.)). The standard for reconsideration is the same under Northern District of New
York Local Rule 60.1, which was formerly Local Rule 7.1(g). See Taormina v. Int'l Bus. Machs.
Corp., No. 1:04-CV-1508 (FJS/RFT), 2006 WL 3717338, *1 (N.D.N.Y. Dec. 14, 2006) (citation
omitted); N.D.N.Y. L.R. 60.1. The standard on a motion for reconsideration is strict, and the
Court will generally deny reconsideration where the moving party does not "'point to controlling
decisions or data that the court overlooked -- matters, in other words, that might reasonably be

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expected to alter the conclusion reached by the court.'" Lewis v. Martinez, 9:15-CV-55
(MAD/ATB), 2019 WL 2105562, *1 (N.D.N.Y. May 14, 2019) (quoting Shrader v. CSX
Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (citations omitted)). Indeed, the Second Circuit
has stated that a motion for reconsideration is not meant to "'relitigate[ ] old issues, present[ ] the
case under new theories, secur[e] a rehearing on the merits, or otherwise tak[e] a second bite at
the apple.'" Henderson v. Rite Aid of New York, Inc., No. 16-CV-785V(Sr), 2018 WL 514094,
*1 (W.D.N.Y. Jan. 23, 2018) (quoting Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d
36, 52 (2d Cir. 2012) (internal quotation omitted), cert. denied, 569 U.S. 918 (2013)).

B. The July MDO
On July 31, 2020, the Court issued a Memorandum-Decision Order granting Defendants'
motion for summary judgment on Plaintiffs' Equal Protection claim. See Dkt. No. 180.
Plaintiffs' Equal Protection claim relies on the argument that Defendants treated them differently
than the similarly situated non-union, managerial/confidential ("M/C") employees in that they
were laid off for exercising their constitutionally protected right to assemble as a union. See id.
at 11. In opposition to Defendants' motion for summary judgment, Plaintiffs argued that they
were similarly situated to the M/C employees because many of the M/C employees held the
same job titles and received similar pay, similar benefits, such as health insurance, and the same
retirement pension. See id.
In granting Defendants' motion for summary judgment, the Court found that Plaintiffs
were only similarly situated to the M/C employees in that they both collected New York State
retirement benefits and pensions and that they both received the same health insurance plan, with

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the exception that the workers hired after 2005 paid different amounts for health insurance
depending on whether they were M/C employees or union member employees. See id. at 13.
Beyond those similarities, the Court emphasized that the union member and M/C employees'
salaries and benefits were determined by different mechanisms as Defendants could alter the
M/C employees' salaries and benefits at-will, but they could not do so to the union member
employees. See id. at 13-14. The Court also highlighted several differences between the
Plaintiffs' and the M/C employees' salaries. See id. at 14-15. Accordingly, the Court found that
there was no evidence that Plaintiffs and the M/C employees received the same salaries, annual
increases, or other payments, nor was there evidence that Plaintiffs and the M/C employees had
the same job titles or duties, or that they were subjected to the same workplace standards. See id.
at 15. Therefore, the Court found that no reasonable jury could find that Plaintiffs and the M/C
employees were similarly situated in all material respects and granted Defendants' motion for
summary judgment as to Plaintiffs' Equal Protection claim. See id.

C. Plaintiffs' joint motion for reconsideration of the Court's July MDO
On August 14, 2020, Plaintiffs filed a joint motion for the Court to reconsider its July
MDO on the grounds that it failed to consider undisputed facts and supporting evidence in the
record. See Dkt. No. 181-2.
To state a claim for violation of their rights under the Fourteenth Amendment's Equal
Protection Clause, Plaintiffs "'must demonstrate that [they] w[ere] treated differently than others
similarly situated as a result of intentional or purposeful discrimination.'" Mishtaku v. Espada,
669 F. App'x 35, 36 (2d Cir. 2016) (summary order) (quotation omitted). To establish that they

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are similarly situated to the M/C employees, Plaintiffs must demonstrate that they are similarly
situated "in all material respects" to those employees. See Jackson v. Syracuse Newspapers, No.
5:10-CV-01362 (NAM/DEP), 2013 WL 5423711, *15 (N.D.N.Y. Sept. 26, 2013) (citing
Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000) citing Shumway v. United Parcel
Service, 118 F.3d 60, 64 (2d Cir. 1997)). The inquiry into whether a plaintiff is similarly situated
to his comparators "in all material respects" is context specific and varies from case-to-case. See
Anderson v. New York City Dep't of Fin., No. 19-CV-7971 (RA), 2021 WL 168476, *2
(S.D.N.Y. Jan. 19, 2021) (citing Brown v. Daikin Am., Inc., 756 F.3d 219, 230 (2d Cir. 2014)).
Generally, in the employment context, a plaintiff may be similarly situated "in all material
respects" when he and his comparators "'were subject to the same workplace standards.'" Irons
v. Bedford-Stuyvesant 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)]) (other citation omitted).
Plaintiffs argue that the Court committed clear error or manifest injustice in its July MDO
by holding that Plaintiffs and the M/C employees were not "similarly situated" in "all material
respects" because they had the same job titles and duties, were subject to the same workplace
standards, and paid similar amounts for healthcare coverage. See Dkt. No. 181-2 at 9-10.
However, Plaintiffs already argued in their initial opposition to Defendants' motion for summary
judgment that they were similarly situated to M/C employees because they had the same job
titles, were paid the same amount, received the same benefits, and received the same pensions as
union member employees. See Dkt. No. 171-1 at 19. Thus, Plaintiffs are merely attempting to
relitigate issues that they already raised in their initial opposition to Defendants' motion for
partial summary judgment. See Clookey v. Citibank, N.A., No. 8:14-cv-1318, 2016 WL

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3365438, *1 (N.D.N.Y. June 16, 2016) (denying the plaintiff's motion for reconsideration
because he merely sought to relitigate issues that the court had already decided). Accordingly,
the Court rejects Plaintiffs' argument and denies their motion for reconsideration. 3

IV. CONCLUSION
After carefully reviewing the entire file in this matter, the parties' submissions, and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Plaintiffs' joint motion for reconsideration of the Court's July 31, 2020
Memorandum-Decision and Order, see Dkt. No. 181, is DENIED.
IT IS SO ORDERED.
Dated: August 19, 2021
Syracuse, New York

3

Even if the Court were to consider Plaintiffs' argument, it would still deny their motion because
they failed to explain how the alleged similarities on which they rely demonstrate that the Court
committed clear error or manifest injustice by finding that they were not similarly situated in all
material respects to the M/C employees.
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