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May 1, 2000


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 dismissed accordingly.


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 years old.

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 Cir. 1989).

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 ...

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