Rumsey v. New York State Dept. of Correctional Services

• Decision Date: 14 March 1994
• Docket Number: N,528,Nos. 241,s. 241
• Citation: 19 F.3d 83
• Parties: 145 L.R.R.M. (BNA) 2780, 128 Lab.Cas. P 11,107 Lee S. RUMSEY, Douglas Digerlando, Michael Rhodes, and Thomas Graves, individually and as representatives of all persons similarly situated, Plaintiffs-Appellees-Cross-Appellants, v. NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES and Thomas Coughlin, as Commissioner of the New York State Department of Correctional Services, Defendants-Appellants-Cross-Appellees. os. 93-7273, 93-7333.
• Court: U.S. Court of Appeals — Second Circuit

Page 83

19 F.3d 83

145 L.R.R.M. (BNA) 2780, 128 Lab.Cas. P 11,107

Lee S. RUMSEY, Douglas Digerlando, Michael Rhodes, and Thomas Graves, individually and as representatives of all persons similarly situated Plaintiffs-Appellees-Cross-Appellants, v. NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES and Thomas Coughlin, as Commissioner of the New York State Department of Correctional Services Defendants-Appellants-Cross-Appellees.

Nos. 241, 528, Nos. 93-7273, 93-7333.

United States Court of Appeals Second Circuit.

Argued Sept. 27, 1993.

Decided March 14, 1994.

John McConnell, Asst. Atty. Gen., Albany, NY (Robert Abrams, Atty. Gen., Peter H. Schiff, Deputy Sol. Gen., of counsel), for defendants-appellants-cross-appellees.

Thomas J. Forrest, Albany, NY (James J. Seaman, Rowley, Forrest, O'Donnell & Hite Before: CARDAMONE, McLAUGHLIN and LAY, ^* Circuit Judges.

P.C., of counsel), for plaintiffs-appellees-cross-appellants.

CARDAMONE, Circuit Judge:

On September 15, 1982 Lee S. Rumsey, individually and as a member of a class of nearly 1000 New York State correction officers, sergeants and lieutenants employed by the Department of Correctional Services, all of whom are also members of the New York National Guard or a reservist branch of the U.S. Armed Forces, commenced a class action in the United States District Court for the Northern District of New York (Cholakis, J.). The action alleged that the defendants, New York State Department of Correctional Services (Department) and Thomas Coughlin III, Commissioner of the Department, violated the Veterans' Reemployment Rights Act, (Veterans' Act), 38 U.S.C. Secs. 2021(b)(3) and 2024(d) (1988) (renumbered 38 U.S.C. Secs. 4301(b)(3) and 4304(d) ¹) and New York Military Law Sec. 242(4) (McKinney 1990). In addition, the complaint asserted that the class members were denied the equal protection of the law, violating 42 U.S.C. Sec. 1983 (1988).

The action was prompted by defendants' promulgation of Directive No. 2212, which required correction officers to change their pass days (days off) to correspond with their military reservist obligations. Plaintiffs sought injunctive relief, compensation claimed to have been lost as a result of the rescheduled pass days, and attorney's fees pursuant to 42 U.S.C. Sec. 1988 (Supp. III 1991). Just as the poet who wrote: "Sewing at once, with a double thread, A Shroud as well as a Shirt," Thomas Hood, The Song of the Shirt, in 1 The Poetical Works of Thomas Hood 193, 194 (Little, Brown & Co. 1864), the trial judge thought the Department's promulgation of Directive No. 2212 had twin consequences, that is to say, it at once violated both a collective bargaining agreement the Department had with its National Guard/reservist employees and Sec. 4301(b)(3) of the Veterans' Act. We cannot agree that it had such double consequences. Before explaining our reasons for differing from the trial court, we set forth the somewhat complex circumstances that prompted this litigation.

BACKGROUND

Plaintiffs are all members of either the Security Services Unit, representing correction officers and sergeants, or the Security Supervisors Unit, representing correction lieutenants. The bargaining representative for both of these units is the New York State Inspection Security and Law Enforcement Employees, District Council 82, AFSCME, AFL-CIO (Council 82). Collective bargaining agreements covering these state employees have been in force since 1970, involving several labor agreements over the time span alleged in the complaint. Because all pertinent provisions in these agreements are the same and apply to both employee bargaining units, references in what follows will be to the provisions of the 1982-85 Security Services Unit collective bargaining agreement, which went into effect on April 1, 1982.

Pursuant to that agreement, job vacancies in state correctional facilities are posted as they occur, and interested employees may bid for them. The postings indicate the work location, that is, at what specific correctional institution there is an opening, and include the hours and days the shift is to be worked, and what days are off. Assignments to these vacancies are awarded on a seniority basis. The labor agreement states that "[r]egularly scheduled days off shall not be changed for the purpose of avoiding the payment of overtime." The Department contends that this provision has been interpreted to mean that overtime must be paid to an employee whose pass days are changed only after the pass days have been posted.

Many hundreds of correction officers are reserve members of the Armed Forces.

Counsel in this case have stipulated the plaintiff class to consist of approximately 970 members. When a temporary vacancy is created because an officer is performing military duties, the position must be filled by another officer to ensure that the correctional facility is adequately staffed. The substituting officer is entitled to overtime. During a 1981 state investigation following complaints about military leave procedures, many abuses were discovered. Those included, for example, employees failing to report to the military after being granted leave by the Department, departing early from military duty, or submitting fictitious military leave orders. About 47 percent of the 245 audited military leave cases were found to be without supporting documentation. Those abuses allegedly cost the State of New York millions of dollars.

In response to this perceived drain on the public fisc, the Department promulgated the subject Directive No. 2212 setting forth procedures for requesting, approving and verifying the use of paid military leave by employees. By applying Directive No. 2212 the Department was able to change employees' days off to coincide with their military duty days, thereby reducing overtime necessary to fill vacancies that would have occurred had the officer been performing military duty on a regularly assigned work day. The result is that employee-reservists before passage of the Directive worked three days and were paid for five--three days work, two days off without pay, followed by two days of military duty for which they were paid. After the Directive, the same individuals had to work five days to get paid for five days, the two days of military duty being on non-pay pass days.

In its March 2, 1993 judgment following a non-jury trial, the district court first found plaintiffs' rights to pass days were protected by their collective bargaining agreement, and since Directive No. 2212 denied plaintiffs an incident or advantage of their employment because of their military reservist obligations, the Department's action, the trial court concluded, also violated 38 U.S.C. Sec. 4301(b)(3). It therefore made the following award to plaintiffs: compensation for lost wages, measured by the salary the employees would have been paid had their pass days not been reassigned, limited to the first 30 days compensable under N.Y.Mil.Law Sec. 242(5); damages to employees who had taken personal leave or vacation leave instead of applying for military leave; prejudgment interest and attorney's fees.

This calculation of plaintiffs' damages was set forth in the district court's February 19, 1987 decision and order, and explained further in its December 31, 1991 decision and order. In the later decision, the trial judge indicated that compensation for lost wages was to be measured at the overtime rate:

reflecting both (1) the pay plaintiffs would have received had the military days occurred on non-pass days (which would have happened absent defendants' rescheduling), and (2) that, since plaintiffs worked five full days and had two military days that, absent rescheduling, would have been compensable, the military days should count towards overtime for those weeks, in accordance with provisions of the collective bargaining agreement.

The Department appeals the ruling that held assigned pass days were an incident or advantage of employment, and that further held the application of Directive No. 2212 violated both the collective bargaining agreement and Sec. 4301(b)(3) of the Veterans' Act. The Department also appeals the damage award maintaining that (1) the Eleventh Amendment bars the award of retroactive monetary damages against the state; (2) if retroactive monetary damages are appropriate, they were calculated incorrectly; and (3) attorney's fees are not available through application of 42 U.S.C. Sec. 1988. The plaintiffs have cross-appealed because overtime damages were limited to the first 30 days compensable under N.Y.Mil.Law Sec. 242(5). The award of prejudgment interest is not challenged on appeal. We pass to a discussion of these issues.

DISCUSSION

I Plaintiffs' Rights

A. Under The Collective Bargaining Agreement

We must ascertain first whether Directive No. 2212, which made employee-reservists Under Article 24 of the labor agreement the Department reserved to itself the right to make any job or shift assignment necessary to maintain the services of the Department. It is required to post for 30 days all permanent vacancies before making a permanent assignment. As related, employees select their work assignments by bidding on work packages that contain the particular shift to be worked, its location and the pass day or days off schedule. Because pass days are advertised to employees as a combined package along with shift and work location, the successful bidder is awarded the entire work package.

perform their military duties on their regular days off, violated the collective bargaining agreement. The district court found plaintiffs' right to assigned pass days, secured through an exercise of seniority, was a right protected by the labor agreement. We review this finding under the clearly erroneous standard, see Fed.R.Civ.P. 52(a), and that finding need only be plausible when examining the record as a whole. See Anderson v. Bessemer City, 470 U.S. 564,...