Donohue v. Milan

Decision Date18 November 2019
Docket Number17-2834-cv,August Term, 2018,Docket Nos. 17-2832-cv,17-2833-cv
Citation942 F.3d 609
Parties Danny DONOHUE, as President of the Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, Civil Service Employees Association, 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, Marcos Diamantatos, Individually and on Behalf of All Others Similarly Situated, Plaintiffs-Appellees, v. Carlos MILAN, 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, Donna J. Luh, Individually, E. Virgil Conway, in His Official Capacity as Board Member of New York State Thruway/Canal Corporation Board of Directors, Richard N. Simberg, Individually, Brandon R. Sall, Individually, J. Donald Rice, Jr., Individually, Jose Holguin-Veras, Individually, New York State Thruway Authority, Defendants-Appellants, 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, 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, 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, Jack Wiedeman, Individually and on Behalf of All Others Similarly Situated, Plaintiffs-Appellees, 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, Marcos Diamantatos, Individually and on Behalf of All Others Similarly Situated, New York State Thruway Employees Local 72, Joseph E. Colombo, George E. Savoie, David M. Mazzeo, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. Carlos Milan, Individually and 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, Individually and in His Official Capacity as Director of the New York State Canal Corporation, Howard P. Milstein, Individually and in His Official Capacity as Chairman of New York State Thruway Authority/Canal Corporation Board of Directors, E. Virgil Conway, Individually and 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, Individually and in Her Official Capacity as Vice-Chairman New York State Thruway/canal Corporation Board of Directors and in Her Official Capacity as Vice-Chair of the New York State Thruway Authority Board of Directors, Richard N. Simberg, Individually and in His Official Capacity as Board Member of the New York State Thruway/Canal Corporation Board of Directors and in His Official Capacity as Board Member of the New York State Thruway Authority, Brandon R. Sall, Individually and in His Official Capacity as Board Member of New York State Thruway/Canal Corporation Board of Directors and in His Official Capacity as Board Member of the New York State Thruway Authority, J. Donald Rice, Jr., Individually and in His Official Capacity as Board Member of the New York State Thruway/Canal Corporation Board of Directors, Jose Holguin-Veras, Individually and in His Official Capacity as Board Member of New York State Thruway/canal Corporation Board of Directors and in His Official Capacity as Board Member of the New York State Thruway Authority, Defendants-Appellants, 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, Defendant. New York State Thruway Employees Local 72, Joseph E. Colombo, George Savoie, David M. Mazzeo, Individually and on Behalf of All Others Similarly Situated, Plaintiffs-Appellees, v. New York State Thruway Authority, Howard P. Milstein, Individually and in His Official Capacity as Chairman 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, Brandon R. Sall, 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, Donna J. Luh, in Her Official Capacity as Vice-Chair of the New York State Thruway Authority Board of Directors, Richard N. Simberg, in His Official Capacity as Board Member of the New York State Thruway Authority, J. Donald Rice, Jr., in His Official Capacity as Board Member of the New York State Thruway Authority, Jose Holguin-Veras, in His Official Capacity as Board Member of the New York State Thruway Authority, Defendants-Appellants, Thomas J. Madison, Jr., Individually and in His Official Capacity as Executive Director 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, Joseph Bress, Individually and in His Official Capacity as Chief Negotiator of the New York State Thruway Authority, Howard Glaser, Individually and in His Official Capacity as Director of State Operations and Senior Policy Advisor To the Governor of New York, Donald R. Bell, Individually and in His Official Capacity as Director of Maintenance and Operations of the New York State Thruway Authority, Defendants.
CourtU.S. Court of Appeals — Second Circuit

942 F.3d 609

Danny DONOHUE, as President of the Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, Civil Service Employees Association, 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, Marcos Diamantatos, Individually and on Behalf of All Others Similarly Situated, Plaintiffs-Appellees,
v.
Carlos MILAN, 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, Donna J. Luh, Individually, E. Virgil Conway, in His Official Capacity as Board Member of New York State Thruway/Canal Corporation Board of Directors, Richard N. Simberg, Individually, Brandon R. Sall, Individually, J. Donald Rice, Jr., Individually, Jose Holguin-Veras, Individually, New York State Thruway Authority, Defendants-Appellants,

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, 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, 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, Jack Wiedeman, Individually and on Behalf of All Others Similarly Situated, Plaintiffs-Appellees,

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, Marcos Diamantatos, Individually and on Behalf of All Others Similarly Situated, New York State Thruway Employees Local 72, Joseph E. Colombo, George E. Savoie, David M. Mazzeo, Individually and on Behalf of All Others Similarly Situated, Plaintiffs,
v.
Carlos Milan, Individually and 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, Individually and in His Official Capacity as Director of the New York State Canal Corporation, Howard P. Milstein, Individually and in His Official Capacity as Chairman of New York State Thruway Authority/Canal Corporation Board of Directors, E. Virgil Conway, Individually and 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, Individually and in Her Official Capacity as Vice-Chairman New York State Thruway/canal Corporation Board of Directors and in Her Official Capacity as Vice-Chair of the New York State Thruway Authority Board of Directors, Richard N. Simberg, Individually and in His Official Capacity as Board Member of the New York State Thruway/Canal Corporation Board of Directors and in His Official Capacity as Board Member of the New York State Thruway Authority, Brandon R. Sall, Individually and in His Official Capacity as Board Member of New York State Thruway/Canal Corporation Board of Directors and in His Official Capacity as Board Member of the New York State Thruway Authority, J. Donald Rice, Jr., Individually and in His Official Capacity as Board Member of the New York State Thruway/Canal Corporation Board of Directors, Jose Holguin-Veras, Individually and in His Official Capacity as Board Member of New York State Thruway/canal Corporation Board of Directors and in His Official Capacity as Board Member of the New York State Thruway Authority, Defendants-Appellants,

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, Defendant.


New York State Thruway Employees Local 72, Joseph E. Colombo, George Savoie, David M. Mazzeo, Individually and on Behalf of All Others Similarly Situated, Plaintiffs-Appellees,
v.
New York State Thruway Authority, Howard P. Milstein, Individually and in His Official Capacity as Chairman 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, Brandon R. Sall, 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, Donna J. Luh, in Her Official Capacity as Vice-Chair of the New York State Thruway Authority Board of Directors, Richard N. Simberg, in His Official Capacity as Board Member of the New York State Thruway Authority, J. Donald Rice, Jr., in His Official Capacity as Board Member of the New York State Thruway Authority, Jose Holguin-Veras, in His Official Capacity as Board Member of the New York State Thruway Authority, Defendants-Appellants,

Thomas J. Madison, Jr., Individually and in His Official Capacity as Executive Director 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, Joseph Bress, Individually and in His Official Capacity as Chief Negotiator of the New York State Thruway Authority, Howard Glaser, Individually and in His Official Capacity as Director of State Operations and Senior Policy Advisor To the Governor of New York, Donald R. Bell, Individually and in His Official Capacity as Director of Maintenance and Operations of the New York State Thruway Authority, Defendants.

Docket Nos. 17-2832-cv
17-2833-cv
17-2834-cv
August Term, 2018

United States Court of Appeals, Second Circuit.

Argued: March 13, 2019
Decided: November 18, 2019


942 F.3d 613

Beth A. Bourassa (Christopher W. Meyer, Norma G. Meacham, Monica R. Skanes, on the brief), Whiteman Osterman & Hanna LLP, Albany, NY, for Defendants-Appellants.

Aaron E. Kaplan (Daren J. Rylewicz, Jennifer C. Zegarelli, on the brief), Civil Service Employees Association, Inc., Albany, NY, for Plaintiffs-Appellees in Donohue et al. v. Milan et al., 17-2832-cv, Donohue et al. v. Milan et al., 17-2833-cv.

Gregg D. Adler (Nicole M. Rothgeb, on the brief), Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., Hartford, CT, for Plaintiffs-Appellees in N.Y. State Thruway Emps. Local 72 et al. v. N.Y. State Thruway Authority et al., 17-2834-cv.

Before: WESLEY, LOHIER, and SULLIVAN, Circuit Judges.

LOHIER, Circuit Judge:

In State Employees Bargaining Agent Coalition v. Rowland, we held that union activity is protected by the First Amendment right to freedom of association and that heightened scrutiny therefore applies to employment decisions that target an employee "based on union membership." 718 F.3d 126, 134 (2d Cir. 2013). Many of the plaintiffs in this case are union members and thus clearly enjoy First Amendment protections based on their voluntary association with a union. But a small subset of the plaintiffs are non-union members called agency fee payors (AFPs). The main question here is whether, in light of Rowland, the AFPs’ First Amendment rights are protected solely because the AFPs are represented by a union during collective bargaining.

In an order granting summary judgment in favor of the Plaintiffs, the United States District Court for the Northern District of New York (Scullin, J. ) interpreted our decision in Rowland to mean that strict scrutiny applies to a public employer’s decision to fire both union members and...

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