United States District Court, Southern District of New York
May 1, 2000
NORMAN I. BECKER, PLAINTIFF,
THE CITY UNIVERSITY OF NEW YORK, DEFENDANT.
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 college. Section 6224(6)
Notwithstanding any inconsistent provisions of law .
. . the comptroller of the state of New York is
authorized to examine, audit, certify for payment and
pay from funding sources available for payment of
claims by the state any settlement, order or judgment
in any federal or state court, other than the court
of claims, or any administrative tribunal which
pertains to a senior college of the city university
of New York.
N.Y. Educ. Law § 6224(6) (emphasis added). See also id. § 6225
(providing for state reimbursement of judgments paid by City of
New York in actions pending before state assumed responsibility
for funding CUNY); id. § 6224(5) (providing for state payment
of judgments entered against CUNY in state court of claims);
Perry v. City of New York, 126 A.D.2d 714
, 511 N.Y.S.2d 310 (2d
Dep't 1987) (ordering dismissal of City of New York as improper
defendant where "the proper defendant is
CUNY, with the ultimate governmental body responsible for paying
any judgment being the State").
Affidavits of state officials confirm that the state pays
judgments entered against CUNY senior colleges. Helen Woo, the
Acting University Controller for CUNY, is responsible for
processing judgments or settlements for payment. She affirms that
"[i]n prior cases where plaintiffs were employed at the CUNY
central office, judgments or settlements in cases brought against
CUNY as an institution have been paid from state funds." (Woo
Decl. ¶ 3.) She explains that she processes such payments by
sending a copy of the settlement or judgment with a state payment
voucher to the state comptroller's office for approval. Upon such
approval, the comptroller's office issues a check from state
funds. She notes that in 1999, the state issued checks in
settlement of two actions brought against CUNY by two employees
of CUNY's central administration.
Finally, the state is ultimately responsible for funding the
budget for CUNY's central administration. Since 1979, the State
of New York has assumed responsibility for funding CUNY's senior
colleges. (Foster Decl. ¶ 3.) The budget bill ultimately ratified
by the state legislature fully appropriates all operating funds
for CUNY, and in particular its central administration office.
(Brabham Decl. ¶ 2.) Although the City of New York reimburses the
state for some operating expenses, it does not reimburse the
state for any payments made by the state for judgments or
settlements. (Woo Supp. Decl. ¶ 3.) The legislature expresses its
intent to assume financial responsibility for CUNY in its finding
that "in order to meet the state's responsibility to provide
post-secondary education in New York city beyond the associate
degree level, as it does elsewhere in the state, there should be
full state funding of senior college operating and debt
service." N.Y. Educ. Law § 6201(1) (emphasis added).
There is no evidence that any entity other than the state will
pay a judgment entered against a CUNY senior college. To the
contrary, all of the evidence shows that if Becker were to
prevail on his claim, the State of New York would pay the
resulting judgment. Accordingly, this factor weighs heavily in
favor of finding CUNY's central administration to be an arm of
the State of New York.
The second factor also shows that CUNY's central administration
is an arm of the state. In addition to paying judgments entered
against CUNY senior colleges, the state retains ultimate control
over how CUNY is governed and operated. First, the state has the
power to appoint a majority of the members of CUNY's controlling
body. CUNY is governed and administered by a board of trustees.
N.Y. Educ. Law § 6204(1). Ten of the seventeen members of CUNY's
board of trustees are appointed by the governor with the advice
and consent of the state senate. Id. § 6204(2)(a). The
chairperson and vice chairperson of the board are appointed by
the governor. Id. § 6204(2)(d).
Furthermore, the creation of the budget for CUNY's senior
colleges is subject to state supervision. The chancellor of the
university is required to submit each year to the governor a
proposed budget for the senior colleges' operating and capital
expenses. Id. § 6230(2). The governor submits his budget
recommendations to the state legislature as part of the local
assistance and capital construction portions of the executive
budget. Id. § 6230(3). The state comptroller is required to
audit annually the senior college annual financial report and
make a report to the governor and other officials. Id. §
Other provisions of the Education Law show that although CUNY
has a degree of independence, it is ultimately accountable to,
and dependent upon, the state. The real property used by CUNY
senior colleges is owned by the State of New York. Id. §
6219(1)(a). CUNY is authorized to acquire property for use by
senior colleges using the state's eminent domain power. Id. §§
307, 6213. More generally, the legislature
concludes that "[t]he governance of the university must reflect
increased state responsibility but should preserve the city's
participation in the governance of the university it created and
developed at city expense." Id. § 6201(1).
In sum, the State of New York is responsible for paying
judgments entered against CUNY senior colleges. The state also
has ultimate authority over how CUNY senior colleges are operated
and governed. Accordingly, Becker's suit against CUNY's central
administration is equivalent to a suit against the State of New
York, and is thus barred by the Eleventh Amendment. See
Hester-Bey, slip op. at 8.
For the foregoing reasons, this action is dismissed. CUNY's
motion for summary judgment on the merits and Becker's motion to
amend his complaint are denied as moot.