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AGUILAR v. THE NEW YORK CONVENTION CENTER OPERATING CORP.

November 5, 2001

KEVIN AGUILAR ET AL., PLAINTIFFS,
v.
THE NEW YORK CONVENTION CENTER OPERATING CORPORATION, GERALD T. MCQUEEN, AND RICHARD POWERS, DEFENDANTS.



The opinion of the court was delivered by: Constance Baker Motley, United States District Judge

OPINION

The fifty individual plaintiffs in this matter, each of whom is either female or a member of a racial or ethnic minority, are carpenters and freight handlers currently or formerly employed by the Jacob K. Javits Convention Center ("Javits Center") in Manhattan. Plaintiffs allege that the Javits Center is managed by a group of "white Irish males" who have engaged in widespread race and gender discrimination. In addition to giving white male employees preferences with respect to the type and amount of work that is assigned, plaintiffs claim that the Javits Center's management has created and condones a hostile work environment rife with racist and misogynist epithets. Plaintiffs also allege that they have been denied various privileges of employment and singled out for reprimand because of their race and/or gender, and that they have been retaliated against for complaining to management.

A. Eleventh Amendment Immunity

Defendants first argue that the Eleventh Amendment affords them immunity from this suit. It is well settled that the Eleventh Amendment bars suits against a state in federal court unless Congress has abrogated or the state has waived its sovereign immunity. See, e.g., Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984).*fn1 Here, however, plaintiffs have not sued the state of New York itself but rather the NYCCOC, an entity created by the state for the purpose of constructing and operating the Javits Center. The question therefore is whether the NYCCOC is more like an "arm of the state," in which case the Eleventh Amendment applies, or more like "a municipal corporation or other political subdivision," in which case the Eleventh Amendment does not apply. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977).

In Mancuso v. New York State Thruway Authority, 86 F.3d 289 (2d Cir. 1996), the Second Circuit reaffirmed its six-factor inquiry for determining whether a state-created entity enjoys Eleventh Amendment immunity under the "arm of the state" doctrine: (1) how the entity is referred to in the documents that created it; (2) how its governing members are appointed; (3) how it is funded; (4) whether its function is traditionally one of local or state government; (5) whether the state has veto power over its actions; and (6) whether the entity's financial obligations are binding upon the state. See id. at 293 (citing Feeney v. Port Auth. Trans-Hudson Corp., 873 F.2d 628, 630-31 (2d Cir. 1989)). If these six factors point in different directions, the tension must be resolved mindful of the Eleventh Amendment's twin rationales — protecting states' treasuries and protecting their dignity. See id. (citing Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30 (1994)). "[T]he vulnerability of the State's purse [is] the most salient factor." Id. (quoting Hess, 513 U.S. at 48). Applying these factors, the Court concludes that the NYCCOC is not an "arm of the state" for Eleventh Amendment purposes.

The first factor — how the entity is referred to in the documents that created it — weighs neither for nor against a finding of immunity. The New York State Legislature created the NYCCOC as a "body corporate and politic" constituting a "public benefit corporation." N.Y. Pub. Auth. Law § 2562(1). With respect to the former term, Mancuso instructs that the designation "body corporate and politic" does "little to advance [the] inquiry," for it has been used by the legislature "to refer to a wide variety of entities, some of which [certainly] would not be found to be arms of the state," and some of "whose status under the Eleventh Amendment is far less certain." Mancuso, 86 F.3d at 294. With respect to the latter term, the legislature has defined "public benefit corporation" to mean "a corporation organized to construct or operate a public improvement wholly or partly within the state, the profits of which inure to the benefit of this or other states, or to the people thereof" N.Y. Gen. Constr. Law § 66(4). This generic definition is equally unhelpful to the task at hand, especially given that the parties have not pointed the Court to any New York authority further elucidating the nature of a public benefit corporation.

Nor does any other language in the statute creating the NYCCOC weigh decidedly toward or against a finding of immunity. On one hand, the legislature characterized the NYCCOC's mission as an "essential government function." N.Y. Pub. Auth. Law § 2561, 2568. On the other hand, the statute also enumerates ways in which the state may "cooperat[e]" and "assist[]" the NYCCOC in the performance of its duties, id. § 2565, suggesting that the legislature considered the NYCCOC and the state to be distinct entities. The Court therefore concludes that the first Mancuso factor is neutral.

The second factor — how the entity's governing members are appointed weighs squarely in favor of immunity. The NYCCOC's board of directors consists of thirteen people, seven of whom are appointed by the governor and six of whom are appointed by leaders of the legislature. See id. § 2562(1).

The third factor — how the entity is funded — also weighs neither for nor against immunity. The NYCCOC funds itself at least in part by collecting rents and other fees from the convention center's patrons. See id. § 2563(10). Additionally, the legislature has established a procedure through which it may appropriate supplemental funds to the NYCCOC to the extent that doing so is necessary to enable the NYCCOC to meet its operating expenses. See id. § 2566. Because there is no evidence in the record establishing the actual extent to which the NYCCOC is self-funded, the Court concludes that the third factor is neutral.

The fourth factor — whether the entity's function is traditionally one of state or local government — weighs against a finding of immunity. Unlike in Mancuso, which concerned the New York State Thruway Authority's operation of the state's highways and canals, it cannot be said that the operation of a convention center is traditionally a state function. Defendants have offered no evidence that any other states operate convention centers — much less that such is the tradition — and the Court suspects that many of the convention centers in this county are operated by municipal entities. Tellingly, the legislature's own findings and declarations in the statute creating the NYCCOC speak as much or more to the needs of New York City than they do to the needs of the state of New York. See id. § 2561. Accordingly, the Court concludes that the fourth Mancuso factor weighs against immunity.

The fifth factor — whether the state has veto power over the entity's actions — also weighs against a finding of immunity. To be sure, the chairman of the NYCCOC's board of directors serves at the pleasure of the governor, but only in his or her capacity as chairman. See id. § 2562(1). Although the governor has unfettered discretion to strip the chairman of his or her chairmanship, the governor cannot remove any of the board members (including the chairman) from the board except for cause. See id. § 2562(5). Moreover, while the comptroller must approve any arrangement in which the center is rented out for purposes other than exhibition, no state official exercises any direct oversight over the NYCCOC with respect to its operation of the Javits Center as an exhibition facility. See id. § 2564(1). The Court therefore concludes that the fifth factor weighs against immunity.

Finally, the sixth factor — whether the entity's obligations are binding on the state — weighs heavily against immunity. The statute, after all, expressly provides that "[t]he obligations of the corporation shall not be debts of the state," that "the state shall not be liable thereon," and that "such obligations shall not be payable out of any funds other than those of the corporation." Id. § 2567. Defendants contend that this provision "is more theoretical than real" because, under section 2566, "the state has committed to compensate [the] NYCCOC for the expenses related to meeting its obligations." NYCCOC Mem. at 7. However, nothing in section 2566 (which provides that the state "may" appropriate supplemental funds to the NYCCOC) requires the state to give the NYCCOC any money, a point driven home by the powerful and unambiguous language in section 2567. The Court therefore concludes that the sixth factor weighs decidedly against immunity.

Turning then, as Mancuso instructs, to the twin purposes of the Eleventh Amendment — protecting states' treasuries and protecting their dignity — it is clear that the NYCCOC should not be deemed an "arm of the state" for Eleventh Amendment purposes. Given that the state plainly is not liable for the debts of the NYCCOC, nothing about this lawsuit renders the state's purse at all vulnerable, even though a judgment theoretically could make it more difficult for the NYCCOC to meet its operating expenses. Furthermore, because the state exercises only limited control over the ...


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