FLSA plaintiffs get second chance at pleading their claims

Four separate cases are resolved in this appeal alleging that hospitals in New York City were not paying their employees for work performed during meal breaks, before and after scheduled shifts and during required training sessions. The cases -- raising claims under state and federal labor law -- were dismissed in the district court for failure to state a claim under Rule 12. The Court of Appeals affirms but gives the plaintiffs a chance to replead.

The case is Nakahata v. New York-Presbyterian, decided on July 11. The Complaints did not provide enough information for the district court to know if the plaintiffs have raised plausible labor law claims. The district court said that the Complaints failed to say "(1) when unpaid wages were earned and the number of hours worked without compensation; (2) specific facts of employment including dates of employment, pay, and positions; and (3) the entity that directly employed the Plaintiffs." Under modern pleading standards, facts in the Complaint that raise the possibility that the defendants violated the law are not going to cut it. You need plausible allegations. Without this detail, the labor law violations are not yet plausible. The plaintiffs are given the green light to replead and try again, the Second Circuit (Lohier and Pogue [C.I.T.]) says.

The plaintiffs also raised common-law claims. Dismissing those claims, the district court said they are preempted by the union contract. The defendants attached the contract to the motion to dismiss. The Court of Appeals says that the contract was outside the pleadings and not reviewable under Rule 12 but, instead, a summary judgment motion. The plaintiffs did not have to plead the contracts in their Complaints. Using one of my favorite phrases, the Second Circuit says the plaintiff "is master of the complaint" and in this circumstance the defendant has to move for summary judgment, not Rule 12 dismissal. "A motion addressed to the adequacy of the pleadings is not necessarily the proper place for preemption to be decided," the Court of Appeals says. Any deficiencies in how plaintiffs pleaded the common law claims can be remedied through an amended pleading in the district court.

False arrest cases: look at the whole picture

In this false arrest case, Stop and Shop store detectives saw a woman place merchandise into her Old Navy bag without paying for it. When a detective approached her, she ran out of the store and drove off in a white van. The Stop and Shop people called the police and told them what they saw. The officer, Wertman, looked at the videotape, which suggested that a woman who fit the description of the shoplifter was the perpetrator. Further investigation at a nearby Old Navy store showed that the perp was in that store and Old Navy bags were strewn on the floor. The investigation was not perfect, though. The perp was identified in a faulty photo array, however, and she was arrested but later acquitted following a bench trial. She sues for false arrest.

The case is Stansbury v. Wertman, decided on June 26. You can win the false arrest case if the police lacked probable cause to arrest. An acquittal is certainly a good start, but it's not enough. That faulty photo array was also a good start. The district court denied Wertman's motion for summary judgment, but the Court of Appeals (Wesley, Sack and Walker) reverses, and the false arrest (and malicious prosecution) case is gone.

Where did the district court go wrong? It said the jury could find no probable cause after it examined each piece of evidence in isolation, finding deficiencies in the case against Stansbury. You had the bad photo array, in which Stansbury's was the only photo for review. You had the fuzzy videotape. The eyewitness accounts were problematic. But, while the case against Stansbury was not air-tight, that does not give you a false arrest case. Under the totality of the circumstances, the police had probable cause to arrest her.

The Court of Appeals has held in the past that the totality test governs these inquiries. It furthers that doctrine in this case, citing a case from the D.C. Circuit Court of Appeals and some New York State cases to that effect. The D.C. Circuit's language now applies in the Second Circuit: “Those who do not take into account conditional probability are prone to making mistakes in judging evidence. They may think that if a particular fact does not itself prove the ultimate proposition (e.g., whether the [officer had probable cause]), the fact may be tossed aside and the next fact may be evaluated as if the first did not exist.” Under these rules, the police had enough to arrest Stansbury. Here's how the Court of Appeals wraps it up:

Although the identifications from the photographic array in this case were less probative than even the two imperfect lineups in Jenkins, the evidence implicated Stansbury before any flawed identification. Prior to the identifications, Wertman was aware that, 22 minutes before the shoplifting, a middle-aged black woman had used Nicole Stansbury’s credit card at a nearby Old Navy and that new shopping bags were seen strewn on the floor near the exit of the store. When questioned about her whereabouts that evening, Wertman observed that Stansbury was nervous and evasive. Stansbury, moreover, had a previous arrest for a similar crime.

On top of the circumstantial evidence against Stansbury, five individuals (including three trained officers and two innocent victims with no alleged motive to lie, one of whom had training in facial identification) could not distinguish her from the perpetrator in admittedly flawed photographic arrays. The two victims submitted sworn affidavits expressing no uncertainty that Stansbury was the perpetrator. The fact that the victims did not offer timely detailed descriptions of the perpetrator means that probable cause could not be based on Stansbury’s matching these descriptions; it does not mean that the victims could not meaningfully identify Stansbury.

Three strikes, you're not out

In the mid-1990s, Congress decided it was open season on inmate litigation. It was not banned outright, but Congress reined in these cases. One way to do that was to deny inmate in forma pauperis status if they had previously filed three frivolous actions in the past. (In forma pauperis means you don't have to pay the filing fee). It all seemed so simple back then. It was not. The courts are still untangling the Prison Litigation Reform Act.

The case is Jones v. Smith, decided on June 19. Is there a more generic caption for a lawsuit than Jones v. Smith? Probably not. This dispute started after Jones filed and lost two separate cases: one alleging that prison officials deprived him of reasonable access to the courts. Jones then appealed that dismissal and lost. We will call this Case A. In Case B, Jones filed a habeas corpus petition challenging his state court conviction. He lost that case and also lost the appeal. Then he filed a motion in the district court to vacate the dismissal of Case B under Rule 60, and after losing that battle, he took up an appeal and lost that one also. So that's five losses in two cases. Under the three-strikes-yer-out rule under the PLRA, the district court in this case says he is ineligible for in formal pauperis status.

The Court of Appeals (Leval, Katzmann and Hall) disagrees in this case of first impression. Under the PLRA, a habeas petition is not a "civil action" for purposes of counting up the inmate's frivolous cases. But the district court said that appeals from weak habeas cases count as a strike. The Court of Appeals does not see it this way. When Congress enacted the PLRA, it was trying to reduce bogus civil actions over prison conditions, like when inmates sue under the Equal Protection Clause because they did not get enough meatballs. Habeas actions do not challenge prison conditions but, instead, the constitutionality of the conviction itself. Appeals can count as strikes, but only in civil actions that may count as strikes. Appeals from frivolous habeas actions don't count. And, right before Congress passed the PLRA, it enacted a law governing frivolous habeas petitions. So Congress most likely intended to cover habeas actions in the first piece of legislation, not the PLRA.

In sum, here is the rule of law in this area: "dismissals of habeas petitions challenging the prisoner's conviction or the duration of his confinement should not be considered strikes for purposes of the PLRA."

Was the inmate framed?

Did you know that inmates have a right to a due process hearing if they are accused of misconduct at the jail? They do, and there is a body of case law to draw from. This inmate's lawsuit was dismissed on summary judgment, and he wins the appeal pro se, prevailing against the Attorney General's office.

The case is Kotler v. Donelli, a summary order decided on June 19. Kotler was an elected inmate representative on the grievance committee at the jail. One day, on an anonymous note, corrections officers searched his cell and allegedly discovered a weapon. I said "allegedly." Kotler said it wasn't his, but no one believed him. He lost at the hearing and was banned from serving on the grievance committee for three years. The Appellate Division affirmed the guilty findings, but Kotler than filed a Section 1983 claim and discovery revealed a letter between jail officials who "sought a way to remove Kotler from the committee and ban him from future elections. One jail official said that a disciplinary hearing was the only want to accomplish that. That email was sent only a few days before the officers "found" the weapon in Kotler's cell. Kotler also alleged that right after the disciplinary hearing, the hearing officer told him off-the-record, "when the boss says get rid of you, I got to get rid of you."

So, after the Appellate Division affirmed the in-house finding of guilt, the case got a lot more interesting. The issue on appeal is whether the disciplinary determination that the weapon belonged to Kotler collaterally estops him from alleging in federal court that the weapon was planted. It does not. Kotler did not have a full and fair opportunity to litigate that issue at the disciplinary hearing, which did not allow him the benefit of any discovery that would have revealed that damaging email. Plus, the hearing officer's damaging admission took place off-the-record, when the hearing ended. This is why the Court of Appeals has held in the past that "there is a substantial question as to whether, under New York law, collateral estoppel should ever apply to fact issues determined in a prison disciplinary hearing and reviewed for substantial evidence in an Article 78 proceeding, given the procedural laxity of such prison hearings and the limited nature of substantial-evidence review."

Whether or not Kotler got screwed at the hearing is ripe for consideration under Section 1983. The Second Circuit (Chin, Lohier and Keenan [D.J]) says that "he should have a chance now to present all of the evidence to a jury."

No back pay for the undocumented under the labor laws

This may surprise people, but undocumented immigrants (also known as illegal aliens) can sue under the labor law. But if an undocumented worker is discharged unfairly, can he sue for back pay? The answer is no.

The case is Palma v. National Labor Relations Board, decided on July 10. The employees were fired in violation of the National Labor Relations Act. They had engaged in protected concerted labor activity, for which they were unlawfully discharged in 2003. The administrative hearing officer awarded them back pay. The NLRB reversed that opinion on authority of the Supreme Court's decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002). Hoffman Plastic gets a fresh look from the Second Circuit.

The Supreme Court said in Hoffman Plastic that undocumented immigrants cannot get back pay because such relief is foreclosed by federal immigration policy, as expressed by Congress in the Immigration Reform and Control Act of 1986 (IRCA), which makes it illegal for employers to hired the undocumented. The former employees in Palma try to get around Hoffman Plastic by arguing that they can get back pay because they did not procure their jobs through the use of fraudulent documentation. (In the Hoffman case, the plaintiff got his job through fraudulent documents). This is not a bad argument. Lawyers are constantly trying to distinguish Supreme Court rulings that go the other way. This was one way to do it, but the Second Circuit is not buying it. It reasons,

Although petitioners urge us to distinguish the present case from Hoffman Plastic because in that case Castro himself had violated IRCA, whereas the petitioners here did not present fraudulent documents, the Hoffman Plastic Court's discussion of the direct conflicts between IRCA and awards of backpay is equally applicable to aliens who did not gain their jobs through such fraud but who are simply present in the United States unlawfully. The Court pointed out that awarding backpay would "not only trivialize[] the immigration laws," but would "also condone[] and encourage[] future violations."

The Court of Appeals (Kearse, Lohier and Kaplan [D.J.]) further tells us that "Given petitioners' presence in the United States without documentation, their seeking damages stemming from an unlawful employment relationship, and--assuming there has been no change in their undocumented status--their obtaining new unlawful employment following their terminations by Mezonos, awards of backpay would have the same ill-advised propensity discussed in Hoffman Plastic for condoning prior violations of the immigration laws and encouraging future violations."

The employees might be entitled to conditional reinstatement. The case is remanded to the NLRB to take up that issue. The employees will need the proper documentation to get their jobs back. The Second Circuit says, "although the Hoffman Plastic Court did not directly deal with an issue of  reinstatement, its discussion plainly did not foreclose relief in the nature of an order for reinstatement conditioned upon an employee's submission of documentation as required by IRCA."

Suing the warden: an inmate's dream

An inmate in New Haven sued the warden, complaining of unconstitutional jail conditions, like poor ventilation, not enough food, no law library, a cold cell with no blankets or sheets, no toothpaste or soap or a ladder to reach the top bunk bed. He sued the warden, but the claim was dismissed because the lawsuit did not adequately allege that the warden knew but did nothing about the problem. The lawsuit is reinstated.

The case is Grullon v. Cityof New Haven, decided on June 19. In order to sue an individual, you have to show that he was personally involved in the constitutional violation. This guy alleged that he sent the warden a letter complaining of the Eighth Amendment problems, but the district court said this was not enough because plaintiff did not allege that the warden received the letter. The Court of Appeals (Kearse, Katzmann and Rakoff [D.J.]) reverses.

The district court would not let the plaintiff amend the complaint following a Rule 12 dismissal. This decision provides a nice overview of that area of the law. Since these motions should be freely granted, especially when a pro se plaintiff brought the case, he gets another shot at the apple. The letter to the warden plus the other allegations in the complaint may give him a valid claim. As the Court of Appeals reminds us, "personal involvement is a question of fact." Under Rule 12, we give the plaintiff the benefit of the doubt. Here's the reasoning:

At the pleading stage, even if Grullon had no knowledge or information as to what became of his Letter after he sent it, he would be entitled to have the court draw the reasonable inference--if his amended complaint contained factual allegations indicating that the Letter was sent to the Warden at an appropriate address and by appropriate means--that the Warden in fact received the Letter, read it, and thereby became aware of the alleged conditions of which Grullon complained. It is of course possible that the Warden read the Letter and took appropriate action or that an administrative procedure was in place by which the Warden himself would not have received the Letter addressed to him; but those are potential factual issues as to personal involvement that likely cannot be resolved without development of a factual record.

Supermarket mogel is personally liable for FLSA violations

This class action alleged that John Catsimatidis, the Chairman and CEO of Gristede's Foods, Inc., was personally liable under federal labor law for overtime and other labor violations. The district court said that Catsimatidis was the plaintiffs' employer, and that he was personally liable. The Court of Appeals affirms, and the plaintiffs win.

The case is Irizarry v. Catsimatidis, decided on July 9. Every few years the Second Circuit provides guidance on who is an employer under federal labor law. This is one of those cases. The definition of "employer" under the Fair Labor Standards Act is useless because it uses the word "employ" in its definition. So we rely on a body of case law to decide who is an employer. We decide this on a case-by-case basis, using the totality of the circumstances "to determine the 'economic reality' of an employment relationship: 'whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.'” But this case raises a new wrinkle. The issue here is "whether an individual within a company that undisputedly employs a worker is personally liable for damages as that worker’s 'employer.'”

Catsimatidis is an "employer" under the FLSA. Although he says he is a high-ranking official who only made general corporate decisions affecting employees (and not day-to-day decisions over them), he has operational control over his employees. He has overall authority over the stores, exercised influence in specific stores on multiple occasions and solved problems in individual stores when they arose. He had power to hire and fire employees. He also has authority to sign paychecks and controls the company financially.

So, while Catsimatidis was not responsible for the FLSA violations, the district court properly granted the plaintiffs' summary judgment motion on whether he was their employer. "His involvement in the company's daily operations merits far more than the symbolic or ceremonial characterization he urges us to apply." The Second Circuit (Wesley, Hall and Goldberg [C.I.T.]), says this is a close case. Here's how we wrap it up:

Catsimatidis was not personally responsible for the FLSA violations that led to this lawsuit, but he nonetheless profited from them. And although the Gristede’s Supermarkets business entity appears to have been larger than other businesses discussed in the cases that have considered this question, the company was not so large as to render Catsimatidis’s involvement a legal fiction. The company is not public. Its stores, in which Catsimatidis actively exercised his influence, are all in the New York City metropolitan area, as are the company headquarters, where he worked almost daily. In sum, as the district court concluded, “it is pellucidly clear that he is the one person who is in charge of the corporate defendant.”  

2d Circuit upholds Hal Turner's conviction for threatening to kill federal judges

Look, you cannot make threats against federal judges. Not true threats, and even fake threats won't fly, either. In this case, an inflammatory blogger went nuts when the Seventh Circuit Court of Appeals declined to incorporate the Second Amendment into the Bill of Rights, which meant that the right to bear arms was not applicable to the states. Hal Turner said the judges deserved to be killed, and his publicized their work addresses online. He said he was serious, and he wrote, "I know how to get it done." He also noted that a federal judge's family in Chicago was murdered in 2005 after he said that she was "worth of death."

The case is U.S. v. Turner, decided on June 21. Hal Turner is a well-known agitator. He was arrested for his blog posts about the Seventh Circuit's Second Amendment decision (which the Supreme Court has since repudiated in holding that that Amendment applies to all municipalities). Turner was tried and convicted in federal court in Brooklyn, and the Court of Appeals affirms, holding that this was not free speech but illegal death threats.

Turner argues that the First Amendment protects his speech. The Second Circuit (Livingston and Cogan [D.J.]) isn't buying it. Prosecutions for true threats do not violate the Constitution. In context, his public comments are not mere hyperbole. Turner's blog outlined how the judges should be killed and he explained how another federal judge's family was killed after she wrote an opinion that prompted Turner to say that she was "worthy of death." The Seventh Circuit judges were well aware of this attack on another judge's family. The Second Circuit writes that "[s]uch serious references to actual acts of violence carried out in apparent retribution for a judge's decision would clearly allow a reasonable juror to conclude that Turner's statements were a true threat." As these were not abstract threats but true threats that placed the Seventh Circuit judges in real danger, the jury had a basis to find him guilty.

Judge Pooler dissents. This is the second time in a little over a year that she dissents from a case involving threats of violence. In March 2012, she dissented in Cuff v. Valley Central School District (a case that I argued) that a 10 year-old schoolboy had a First Amendment right to state in a class assignment that he wished to "blow up the school with the teachers in it." In the Hal Turner case, Judge Pooler says that Turner's "communications were advocacy of the use of force and not a threat." His statements were made in the passive voice and did not warn of planned violence but instead an exhortation toward violence. "Although vituperative, there is no doubt that this was public political discourse." Judge Pooler suggests that Turner could have been convicted under an incitement statute, but he was not charged under it.

Inmate with PTSD loses equal protection claim

Inmates have rights, too. But they are much harder to prove. Sometimes the inmate gets shafted, but the law is not on his side, so he loses the case.

The case is Spavone v. New York State Department of Correctional Services, decided on June 20. Plaintiff is in the big house, having committed some felonies. He has post-traumatic stress disorder from fighting with the Contras in Nicaragua more than 20 years ago. He also experienced the 9/11 terrorist attacks first-hand. He wanted a medical leave of absence to deal with his PTSD. That leave of absence would take him out of jail to deal with his psychological issues. Under state law, a medical leave of absence is available for surgery if "absolutely necessary to the health and well-being of the inmate." These leaves are difficult to get, though. In 2008, DOCS granted 19 leaves of absence for a prison population of over 60,000.

The problem for Spavone is that he wants a medical leave of absence for PTSD. State law does not specifically provide for that kind of leave; it only covers physical ailments. His request for a medical leave of absence was denied, so he sues under the Constitution. He claims that the distinction between leaves of absence for physical ailments (covered under the law) and mental ailments (not covered) violates equal protection.

Interesting issue. If you follow equal protection jurisprudence, a classification violates the Constitution if it discriminates on the basis of a protected characteristic, such as race or gender. Otherwise, the government wins the case if it can show a rational basis for the distinction. The Second Circuit (Leval, Katzmann and Livingston) applies rational-basis review, which is the kiss of death in these cases, but not always fatal.

Spavone loses because he has not shown that the defendants -- individual jail officials -- could have reasonably believed that the mental/physical treatment distinction violated the Constitution. This is because, in light of an agreement between DOCS and the Office of Mental Health, they had reason to believe that basic mental health treatment -- including residential programs -- were available to inmates like Spavone. Since defendants had reason to think that this treatment was available to plaintiff, they are entitled to qualified immunity, and the case is dismissed.

2d Cir. upholds $190,000 false arrest verdict

This guy sued the police for false arrest and malicious prosecution. The jury agreed with him and awarded him $190,000. The City of New York appeals the verdict, but the Court of Appeals affirms, and the plaintiffs get their money.

The case is Marshall v. Randall, decided on June 12. When people lose at trial, the often vow to appeal. It may look good in the newspaper to say that, but most trial verdicts are upheld on appeal. There are reasons for this. First, appellate courts will not second-guess the jury's credibility or factual determinations. Second, trial courts are given the benefit of the doubt on evidentiary rulings.

In this case, the plaintiff was arrested for possessing a loaded firearm when the police said he threw a gun onto the street in their presence. The grand jury indicted him but the charges were dismissed on speedy trial grounds. The jury agreed with Marshall that the police lied when they accused him of throwing the gun. His trial strategy was to highlight the inconsistencies in the officers' accounts of what happened. One way to do that was by cross-examining them through their grand jury testimony.

One issue on appeal invokes the general rule is that you cannot be sued over your grand jury testimony, lest witnesses pull punches during that critical phase of the criminal process. At trial, Marshall used that grand jury testimony against the officers as impeachment material, to show that the officers had given inconsistent accounts throughout the case. The trial judge allowed the plaintiff to do this. The Court of Appeals (Lynch, Walker and Carney) says that district judge Jack Weinstein (one of the true experts on trial evidence and procedure, by the way) did not abuse his discretion in handling this issue at trial. This is a close call, the Second Circuit says, but the Court of Appeals is satisfied that the jury did not find the police officers guilty based on the substance of their grand jury testimony. Based on the trial court's instructions, the jury most likely found against the officers based on the impeachment value of the grand jury testimony. It's a fine line, but, as I said, it is very difficult to overturn a jury award based on the trial court's discretionary rulings on evidence.

The City raised another issue: in order to win a malicious prosecution case, the plaintiff has to show that the charges were meritless and terminated in his favor. It is settled law that the charges settle in your favor when they are dismissed on speedy trial grounds. The police officers wanted to know that that's what happened to the plaintiff's criminal charges. I guess their strategy was to show that this was some kind of technicality and did not really speak to the strength of the case against him in criminal court. But the trial court did not abuse his discretion in not allowing the jury to know that the case was dismissed on speedy trial grounds.

Connecticut labor unions win summary judgment in First Amendment mass-layoff claim

Union-bashing was all the rage a few years ago as Republican governors around the country tried to balance their budgets on the backs of organized labor. But Connecticut was 10 years ahead of the game. In 2003, the governor targeted union members for mass layoffs when the union would not agree to certain concessions. The union sued the governor under the First Amendment. The district court dismissed the case on summary judgment. The Court of Appeals reverses and awards the labor unions summary judgment on liability.

The case is State Emp. Bargaining Agent Coalition v. Rowland, decided on May 31. Connecticut was having budget problems in 2002-03. The state tried to talk the union into accepting certain concessions, and it told the union that the alternative was the termination of 3,000 unionized employees. Of the 50,000 state employees, 37,500 of them were in the union. Here is the factual framework:

Defendants advised plaintiffs that unless they agreed to these concessions, defendants would fire approximately 3000 unionized state employees. Although all state employees receive the same health care and pension benefits, defendants “intentionally directed their demands for health care and pension concessions (and their corresponding threats of termination if the concessions were not granted) solely to state union employees.” Plaintiffs did not agree to all of the proposed concessions, but instead offered alternative concessions. In December 2002, defendants ordered the firing of approximately 2800 unionized state employees. These firings were effectuated in 2003 and were limited to unionized state employees. No non-union workers were fired. While the fired employees were told that they were being laid off due to economic necessity caused by the state’s fiscal year 2003 budget deficit, the firings in fact “had minimal effect” on the state’s fiscal year 2003 expenses, and “were ordered as a means of trying to compel the plaintiff unions to agree to the concessions demanded.” Defendants advised plaintiffs that the 2003 firings would be rescinded if plaintiffs agreed to the proposed concessions.

State budget sausage-making is ugly. Log-rolling, back-slaps and threats make the world go round at the state capitol in New York, and I'm sure it's no different in Connecticut. But even state officials are governed by the Constitution. Maybe they did not think this raised a First Amendment problem. The Second Circuit (Lynch, Raggi and Chin) thinks it does.

The First Amendment protects the right to associate with a labor union. This case charts new ground. The Court says, "we have never articulated a standard for determining whether, and under what circumstances, a public entity’s employment decisions violate this right to associate in unions." After surveying the Supreme Court cases in related areas, the Court of Appeals decides on a legal test: "Conditioning public employment on union membership, no less than on political association, inhibits protected association and interferes with government employees’ freedom to associate. It is therefore subject to the same strict scrutiny, and may be done only 'in the most compelling circumstances.'”

Under this pro-plaintiff standard, the Court of Appeals grants the plaintiffs summary judgment. The state cannot articulate a compelling reason for targeting union members in effectuating layoffs. "The stipulated facts make clear that the 2003 firings were not tailored to reduce the cost of the State’s work force. To the contrary, defendants have stipulated that the 2003 firings 'had minimal effect on the State’s [fiscal year 2003] expenses,' and that the savings realized from the 2003 firings did not correlate to the concessions requested from the unions." More important, the Court says,

defendants have not shown why the State’s fiscal health required firing only union members, rather than implementing membership-neutral layoffs. Defendants have stipulated that all state employees, whether or not they belong to unions, receive the same health care and pension benefits. Nothing in the stipulation provides any support for an argument that union members cost more, provided fewer services, or were distinguishable from their non-union coworkers in any way other than their membership itself. Defendants chose to accomplish whatever cost savings were achieved by firing only employees who were union members, as opposed to targeting the least valuable or most expensive workers. Thus, layoffs predicated on union membership could not differentially affect the savings to be achieved, or the efficiency of the state’s work force.