The opinion of the court was delivered by: Cedarbaum, District Judge.
Plaintiff Norman I. Becker sues the City University of New York
("CUNY") for age discrimination in violation of the Age
Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et
seq. Earlier this year, the United States Supreme Court held
that the Eleventh Amendment of the Constitution bars a suit in
federal court under the ADEA by a private individual against a
state. Kimel v. Florida Bd. of Regents, ___ U.S. ___, 120 S.Ct.
631, 145 L.Ed.2d 522 (2000). I directed Becker and CUNY to
address the court's jurisdiction over this action in light of the
Supreme Court's decision in Kimel. Specifically, I ordered the
parties to submit authorities and evidence on the question of
whether CUNY's central administration, the unit of CUNY for which
plaintiff works, is an arm of the State of New York for purposes
of sovereign immunity. Because the answer to that question is
"yes," this action is barred by the Eleventh Amendment, and
Becker is an Assistant Chief Architect in the Department of
Design, Construction and Management of CUNY (the "Department").
The Department is responsible for managing CUNY's capital
construction and rehabilitation program and for providing
technical assistance to the constituent colleges. Becker has been
employed by CUNY as an architect since 1973. He is currently 57
Becker asserts that he has suffered age discrimination by his
employer since he rejected an early retirement offer in 1995.
Specifically, he alleges that he has received poor performance
evaluations and a recommendation of demotion and discharge
because of his refusal to accept early retirement. He also
alleges that his staff has been eliminated, that he is no longer
assigned to projects that would help him qualify for promotion,
and that he was not notified of an opening for a position as
Chief Architect for which he was qualified. All of these events,
Becker alleges, occurred in retaliation for his refusal to
retire. Becker also asserts that he has been harassed by his
supervisors on account of his age.
CUNY moved for summary judgment on all of Becker's claims.
Becker moved to amend his complaint to include new allegations of
discrimination. Before oral argument of these motions, the
Supreme Court issued its decision in Kimel, raising a question
as to whether this court has jurisdiction over the action.
It is well-settled that the Eleventh Amendment bars a suit for
damages brought in federal court by a private individual against
a state unless Congress has explicitly abrogated the state's
sovereign immunity or the state has waived it. Pennhurst State
School & Hosp. v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900,
907, 79 L.Ed.2d 67 (1984); Kentucky v. Graham, 473 U.S. 159,
169, 105 S.Ct. 3099, 3107, 87 L.Ed.2d 114 (1985). In Kimel, the
Supreme Court held that Congress exceeded its authority when it
provided that a private individual could assert a claim for
damages against a state under the ADEA. Kimel, ___ U.S. at ___,
120 S.Ct. at 650. The State of New York has not consented to suit
in this case. Consequently, if CUNY's central office is an "arm
of the state" for purposes of sovereign immunity, this action
must be dismissed. Rosa R. v. Connelly, 889 F.2d 435, 437 (2d
In determining whether an entity is an arm of the state for
Eleventh Amendment purposes, it is necessary to consider "the
extent to which the state would be responsible for satisfying any
judgment that might be entered against the defendant entity" and
"the degree of supervision exercised by the state over the
defendant en ity." Pikulin v. City Univ. of New York,
176 F.3d 598, 600 (2d Cir. 1999). The first of these two factors, "the
vulnerability of the State's purse," is "the most salient
facto in Eleventh Amendment determinations." Hess v. Port Auth.
Trans-Hudson Corp., 513 U.S. 30, 48, 115 S.Ct. 394, 404, 130
L.Ed.2d 245 (1994); see also Trotman v. Palisades Interstate
Park Comm'n, 557 F.2d 35, 38 (2d Cir. 1977).
Until last year, every federal judge who addressed the question
of whether CUNY is an arm of the state answered in the
affirmative. See, e.g., Burrell v. City Univ. of New York,
995 F. Supp. 398, 410-11 (S.D.N.Y. 1998); Minetos v. City Univ. of
New York, 875 F. Supp. 1046, 1053 (S.D.N.Y. 1995); Moche v. City
Univ. of New York, 781 F. Supp. 160, 165 (E.D.N.Y. 1992). These
decisions relied primarily on the obligation of the State of New
York, under N.Y. Educ. Law. § 6205(1), to indemnify CUNY's
trustees, officers, and staff against liability.
However, in Pikulin, the Court of Appeals criticized this
reasoning as inadequate. In Pikulin, the trial court relied on
the above cases in dismissing on sovereign immunity grounds
plaintiffs' claims asserted against CUNY under 42 U.S.C. § 1981
and 1983. The Court of Appeals vacated the judgment dismissing
these claims, noting that N.Y. Educ. Law § 6205(1) "requires the
state to indemnify only such individuals affiliated with CUNY,
and does not address the state's financial responsibility, if
any, to satisfy judgments entered against CUNY itself."
Pikulin, 176 F.3d at 600. The court remanded the case for
further proceedings, suggesting that on remand "defendant should
develop a record sufficient to allow the district court to
consider fully CUNY's relationship to the state." Id. at 601.
It is uncontested that the department in which plaintiff is
employed is part of CUNY's central administration, and that the
central administration is considered a "senior college" under the
Education Law. N.Y. Educ. Law. § 6202(5); Woo Decl. ¶ 2. This
distinction is important because the suit in Pikulin involved a
CUNY community college,*fn1 which enjoys a relationship with the
state different from that of a senior college. Compare N.Y.
Educ. Law §§ 6224(1) and 6229 with N.Y. Educ. Law §§ 6224(4)
and 6230. Thus, the relevant inquiry is not whether the state
pays every judgment entered against any CUNY college, but rather
whether the state pays the judgment in every suit against a CUNY
senior college; specifically, the central administration office.
After heeding the Pikulin court's admonitions and performing
a more searching inquiry of the provisions of the New York
Education Law pertaining to the relationship between CUNY and the
state, I conclude that a CUNY senior college is an arm of the
state for Eleventh Amendment purposes. Both of the relevant
factors — whether the state pays the judgment and the degree of
control exercised by the state — support this conclusion.
The Education Law expressly provides that the state will pay a
judgment entered against a CUNY senior ...