Upload
casey-seiler
View
222
Download
0
Embed Size (px)
Citation preview
7/29/2019 State AG's response: Wandering Dago v. OGS
1/23
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
WANDERING DAGO INC.,
Plaintiff,
-against-
NEW YORK STATE OFFICE OF GENERAL SERVICES,
ROANN M. DESTITO, JOSEPH J. RABITO, WILLIAM F.
BRUSO, JR., AARON WALTERS, NEW YORK RACING
ASSOCIATION, INC., CHRISTOPHER K. KAY,
STEPHEN TRAVERS, JOHN DOES 1-5, and THE STATE
OF NEW YORK,
Defendants.
13-CV-1053
MAD/RFT
MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF'S
MOTION FOR A PRELIMINARY INJUNCTION AND IN SUPPORT
OF THE STATE DEFENDANTS' MOTION TO DISMISS
ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
Attorney for Defendants NYS Office of General
Services, RoAnn M. Destito, Joseph J.
Rabito, William F. Bruso, Jr., Aaron
Walters and the State of New York
The Capitol
Albany, New York 12224-0341
Laura SpragueAssistant Attorney General, of Counsel
Bar Roll No. 511478
Telephone: (518) 474-3602
Fax: (518) 473-1572 (Not for service of papers) Date: September 11, 2013
7/29/2019 State AG's response: Wandering Dago v. OGS
2/23
i
Table of Contents
PRELIMINARY STATEMENT ................................................................................................. 1
STATEMENT OF THE CASE .................................................................................................... 2
ARGUMENT................................................................................................................................. 4
POINT I ......................................................................................................................................... 4
PLAINTIFF HAS FAILED TO MEET ITS BURDEN OF ESTABLISHING
ENTITLEMENT TO A PRELIMINARY INJUNCTION IN THIS CASE. ............... 4
A. Plaintiff cannot establish irreparable injury.......................................... 5
B. Plaintiff cannot demonstrate a likelihood of success on the merits...... 7
C. Plaintiff has failed to demonstrate a balance of the hardships tipping
in its favor. ................................................................................................. 9
POINT II...................................................................................................................................... 10
PLAINTIFF HAS FAILED TO STATE A CAUSE OF ACTION AND THE
COMPLAINT MUST BE DISMISSED AS A MATTER OF LAW .......................... 10
A. Plaintiff has failed to state a claim for a First Amendment Violation 10
B. Plaintiff has failed to state a claim for an Equal Protection Violation.
................................................................................................................... 16
C. Plaintiff has failed to state a cause of action against the State
defendants for its removal from the Saratoga Race Course.............. 17
D. Defendants New York State and OGS are immune from suit. ........... 17
E. The Court should decline to exercise supplemental jurisdiction over
the plaintiff'sstate law claims................................................................ 19
CONCLUSION ........................................................................................................................... 20
7/29/2019 State AG's response: Wandering Dago v. OGS
3/23
1
PRELIMINARY STATEMENT
This case involves New York State's refusal, in its capacity as an employer, and the operator
and manager of a complex of buildings used by State employees and visitors, to implicitly promote
the presence of a business within that complex that could reasonably be viewed by its workforce and
visitors as offensive. This is not a case in which the government has acted pursuant to its general
regulatory authority over public conduct; plaintiff's suggestion that this matter falls within precedent
addressing such cases is incorrect.
The plaintiff corporation, Wandering Dago Inc., operates a food truck bearing the same name
and offering menu items such as "Dago", "Polack", and "Mick and Cheese".1
Plaintiff applied to
participate as a vendor in the "2013 Summer Outdoor Lunch Program" ("program"), which permits a
limited number of food vendors to utilize outdoor space in the Empire State Plaza, a complex of
State buildings and common space housing approximately 11,000 state employees in the heart of
downtown Albany, New York.2
Plaintiff's application was denied, at least primarily, due to
concerns that the name prominently displayed on the truck and the names of some of its food items,
all of which are well known derogatory terms for various ethnicities and national origins, would be
offensive to New York State employees and visitors to the Plaza.3
Approving the plaintiff's
1 The menu may be found online at http://www.wanderingdago.com/menu.html. A menu
identical to that on the plaintiff's website is attached to the Affidavit of William F. Bruso, Jr. as
Exhibit B.
2 Information regarding the Empire State Plaza is a matter of public record and may be
found at http://www.ogs.ny.gov/esp/.
3 For purposes of the present motion for a preliminary injunction only, State defendants
will accept as true that the plaintiff's classification of its name and menu items as commercial
speech. For purposes of the motion to dismiss the complaint for failure to state a cause of action,
the Court must treat the well-pleaded facts stated in plaintiff's complaint as true. Fed. R. Civ. P.
12(b)(6).
7/29/2019 State AG's response: Wandering Dago v. OGS
4/23
2
application would communicate to State employees and visitors the State's approval of those
derogatory terms, and would be inconsistent with the State's requirements for use of State property,
the program in which the plaintiff sought to participate, and the State's commitment and obligation
to provide its employees with a non-discriminatory workplace.
Over three months after its application was denied, plaintiff filed the instant action alleging
that the denial of its application to participate in the program amounts to wholesale government
regulation of speech, and seeking a preliminary injunction mandating approval of its application.
The New York State Office of General Services, RoAnn M. Destito, Joseph J. Rabito, William F.
Bruso, Jr., Aaron Walters and New York State ("State defendants") file this Memorandum of Law in
opposition to the plaintiff's motion, and in support of their motion to dismiss the complaint. As the
plaintiff has incorrectly framed the State's action as regulatory rather than proprietary, and has
wholly failed to demonstrate a basis for liability and irreparable harm, the State defendants
respectfully request that the motion for preliminary injunction be denied and the plaintiff's complaint
be dismissed in its entirety with respect to the State defendants.
STATEMENT OF THE CASE
The New York State Office of General Services ("OGS") is the executive agency charged
with providing coordinated services in support of State departments and agencies, and with
managing the State's numerous properties and buildings. SeeN.Y.S. Executive Law 202; N.Y.S.
Public Buildings Law 2. In that capacity, OGS solicited applications for food vendors to
participate in the program, scheduled to operate from 9:00 a.m. until 2:00 p.m. on weekdays for the
20 week summer season. See Complaint, Exh. A. The application specified the application process
and requirements, and further specified certain general conditions with which vendors would be
expected to comply, including the requirement that: "All vendors are expected to conduct themselves
7/29/2019 State AG's response: Wandering Dago v. OGS
5/23
3
with courtesy and in an orderly manner. Arguments, harassment, sexual harassment, name-calling,
profane language, or fighting are grounds for revocation of the vendor permit" (Emphasis added).
Id., p. 3.
Plaintiff submitted an application on May 17, 2013. Complaint, 27. On May 20, 2013,
plaintiff received notification from OGS that its application for space had been denied. Complaint,
28; Exh. B. Plaintiff was subsequently advised that its application had been denied, in part,
because its name was deemed to be "offensive".4
Complaint, 32. The word "dago" is commonly
understood to be a derogatory reference to individuals of Italian or Spanish descent.5
The program
began on May 20, 2013, and is scheduled to conclude on October 4, 2013. Complaint, Exh. A.
Plaintiff intended to participate in the program on Wednesdays and Fridays only, and would have
been absent for seven weeks during its intended participation in the vendor program at the Saratoga
Race Track. Complaint, 23. The sole harm alleged by the plaintiff resulting from the denial of its
application is economic. Complaint, 42, p. 20; Loguidice Aff., 10.
4 As specified in the Affidavits of Andrea D. Loguidice, William F. Bruso, Jr. and JosephJ. Rabito, OGS proffered reasons other than the business name supporting the denial of the
plaintiff's application. Moreover, the Bruso and Rabito affidavits also cite to the names of
certain menu items as a basis for denial as well. These affidavits are submitted to supplement
the record in connection with the plaintiff's application for a preliminary injunction only. To the
extent that there may be factual disputes with respect to the reasons underlying the decision and
whether those reasons were communicated to the plaintiff's representative, any such dispute
would not be relevant to the State defendants' motion to dismiss the complaint, which relies
solely on the allegations in the complaint.
5 See, e.g., www.dictionary.com (dago/ dego/ Show Spelled [dey-goh] Show IPA
noun, plural dagos, dagoes. (often initial capital letter) Slang: Disparaging and Offensive.
a person of Italian or sometimes Spanish origin or descent.); www.oxforddictionaries.com
(dagoSyllabification: (dago) Pronunciation: / dg/ noun (plural dagos or dagoes) informal
offensive an Italian, Spanish, or Portuguese-speaking person); www.merriam-webster.com
(dago noun \ d-( )g\plural dagos or dagoes Definition of DAGO usually offensive: a person
of Italian or Spanish birth or descent See dago defined for English-language learners Origin of
DAGO alteration of earlier diego, from Diego, a common Spanish given name First Known Use:
1832).
7/29/2019 State AG's response: Wandering Dago v. OGS
6/23
4
ARGUMENT
POINT I
PLAINTIFF HAS FAILED TO MEET ITS BURDEN OF ESTABLISHING
ENTITLEMENT TO A PRELIMINARY INJUNCTION IN THIS CASE.
Generally, a prohibitory injunction may not be issued unless plaintiff demonstrates: "(1)
irreparable harm and (2) either (a) a likelihood of success on the merits, or (b) sufficiently serious
questions going to the merits of its claims to make them fair ground for litigation, plus a balance of
the hardships tipping decidedly in favor of the moving party." Plaza Health Laboratories, Inc. v.
Perales, 878 F.2d 577, 580 (2d Cir. 1989)(internal citations omitted). "Preliminary injunctive relief
'is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear
showing, carries the burden of persuasion.'"Marcavage v. City of Syracuse, 2012 U.S. Dist. LEXIS
187137 (N.D.N.Y June 6, 2012), citing Moore v. Consol. Edison Co. of New York, Inc., 409 F.3d
506, 510-511 (2d Cir. 2005).
In this particular case, plaintiff is asking this Court to issue a mandatory preliminary
injunction, mandating State approval of its application for a permit to participate in the program as a
vendor. This sort of injunction requires a heightened level of scrutiny, insofar as plaintiff's
requested remedy would "alter the status quo by commanding some positive act." Tom Doherty
Assocs. v. Saban Entm't, Inc., 60 F.3d 27, 34 (2d Cir. 1995), c.f. Mastrovincenzo v. City of New York,
435 F.3d 78, 90 (2d Cir. 2006) (injunction framed as a prohibition against enforcement of city code
deemed to be prohibitory rather than mandatory). In such cases, an injunction should issue "only
upon a clear showing that the moving party is entitled to the relief requested, or where extreme or
very serious damage will result from a denial of preliminary relief." Id., citing Abdul Wali v.
Coughlin, 754 F.2d 1015, 1025 (2d Cir. 1985). Under either standard, however, plaintiff cannot meet
7/29/2019 State AG's response: Wandering Dago v. OGS
7/23
5
its burden of proof.
A. Plaintiff cannot establish irreparable injury.
The preliminary injunction sought in this case is distinguishable from situations in which
injunctive relief is requested to prevent a continuing deprivation of rights. The deprivation alleged
in this case is a discrete act, the denial of plaintiff's application, and plaintiff has framed its damages
solely in economic terms. Complaint, 42, p. 20; Loguidice Aff., 10. The act about which plaintiff
complains occurred more than three months prior to the date on which plaintiff filed its complaint,
and the program in which plaintiff sought to participate ends on October 4, 2013. Complaint, 20,
23, 27; Exh. A. As there is no continuing violation for this Court to redress, and as plaintiff could be
made whole by an award of damages, plaintiff cannot establish irreparable injury.
Preliminary injunctions are intended to redress continuing wrongs that cannot be remedied if
an injunction does not issue. See, e.g., New York Pathological & X-Ray Laboratories, Inc. v.
Immigration & Naturalization Service, 523 F.2d 79 (2d Cir. 1975). InElrod v. Burns, cited by the
plaintiff, the Court noted that:
At the time a preliminary injunction was sought in the District Court, one of the
respondents was only threatened with discharge. In addition, many of the members of
the class respondents were seeking to have certified prior to the dismissal of their
complaint were threatened with discharge or had agreed to provide support for the
Democratic Party in order to avoid discharge. It is clear, therefore, that First
Amendment interests were either threatened or in fact being impaired at the time
relief was sought.
Elrod v. Burns, 427 U.S. 347, 373 (1976). Elrod has traditionally been construed to require a
continuing or threatened violation prior to a finding of irreparable harm. For instance, inAmerican
Postal Workers Union v. United States Postal Service, 766 F.2d 715, 722 (2d Cir.1985), the Court
refused to extendElrodwhen the employee alleging irreparable harm had already been discharged
from his employment for sending politically motivated correspondence on behalf of his union, as no
7/29/2019 State AG's response: Wandering Dago v. OGS
8/23
6
First Amendment rights were being threatened or impaired when the injunction was sought. See also
L.A. v. Lyons, 461 U.S. 95, 111 (1983) (in finding no irreparable harm despite the allegation of
constitutional harm: "Absent a sufficient likelihood that he will again be wronged in a similar way,
Lyons is no more entitled to an injunction than any other citizen of Los Angeles");Marcavage v.
City of Syracuse, supra (denying motion for preliminary injunction where alleged First Amendment
violation was not continuing); Pinckney v. Bd. of Educ. of Westbury Union Free School Dist., 920 F.
Supp. 393, 400 (E.D.N.Y. 1996) (finding that despite constitutional due process claim, this lawsuit
is, at its core, a single plaintiff's claim for money damages" and distinguishing Second Circuit
precedent); Smith v. Fredrico, 2013 WL 122954, No. 12-cv-04408 (ADS) (ETB) (Jan. 8, 2013) at *7
([W]hen personal constitutional rights are violated and the harm that accompanies the violation is
remediable or compensable, the damage is not irreparable.) (citations omitted); see also Libin v.
Greenwich, 625 F. Supp. 393, 395 (D. Conn. 1985);Hohe v. Casey, 868 F.2d 69, 73 (3d Cir. 1989).
A determination that a bare allegation of First Amendment restriction equates to the sort of
continuing harm that may be redressed by injunctive relief is contrary to the precedent cited above,
and would conflict with other precedent that clearly recognizes the discrete nature of First
Amendment violations arising from particularized actions. For instance, courts are uniform in
holding that discrete acts impacting First Amendment rights cannot be viewed as continuing wrongs
for which the statute of limitations will be tolled. See, e.g., Day v. Moscow, 769 F. Supp. 472, 477
(S.D.N.Y. 1991) (continuing violation doctrine may not be based on the continuing effects of earlier
conduct that chilled First Amendment rights); Prince v. County of Nassau, 837 F. Supp. 2d 71, 94
(E.D.N.Y. 2011). The plaintiff has failed to allege and support any continuing threat to its First
Amendment rights following denial of its application for a permit to participate in the program at the
Plaza; in fact, it has conceded that it is permitted to vend in other locations and has thus wholly
7/29/2019 State AG's response: Wandering Dago v. OGS
9/23
7
failed to allege irreparable harm.
Furthermore, the plaintiff's delay in seeking injunctive relief for more than three months,
until the program is almost at its conclusion, tends to belie the allegation of irreparable harm in
connection with the current season. See Citibank, N.A. v. Citytrust, 756 F.2d 273, 276 (2d Cir.
1985)(delay in seeking enforcement of rights tends to negate claim of urgent need to protect rights);
Majorica S.A. v. R.H. Macy & Co., Inc., 762 F.2d 7, 8 (2d Cir. 1985) (Lack of diligence, standing
alone, maypreclude the granting of preliminary injunctive relief, because it goes primarily to the
issue of irreparable harm rather than occasioned prejudice.) (citation omitted). Plaintiff has waited
until the season has almost ended, and is seeking a rush to judgment based on a claim of irreparable
harm that is very close to moot with respect to the State defendants. Plaintiff has indicated that it
intended to participate in the program on Wednesdays and Fridays only, and has based its
calculation of economic loss on the projected sales per day for two days a week. Loguidice Aff., 10.
If the plaintiff is successful on its motion for a preliminary injunction, which could ostensibly occur
no earlier than September 19, 2013, the plaintiff would be able to participate in the program for only
five days before the program is scheduled to end. The inability to participate for those five days may
be adequately redressed by an award of money damages, if appropriate. Plaintiff has simply failed
to demonstrate harm for which an injunction would be appropriate, much less necessary.
B. Plaintiff cannot demonstrate a likelihood of success on the merits.
As more fully set forth below in Point II, the complaint fails to state a cause of action. In
pleading its case, plaintiff has improperly assumed, and cited to case law addressing, restrictions on
speech by the government in its regulatory capacity, without addressing the proper contextual
framework for the denial of plaintiff's application to participate as a vendor in the program. As the
denial of plaintiff's application was made in the State defendants' proprietary capacity and in
7/29/2019 State AG's response: Wandering Dago v. OGS
10/23
8
accordance with State regulations permitting commercial activity on State property under limited
circumstances and only with approval, the plaintiff has failed to demonstrate liability as a matter of
law.
Given the State defendants' position that the plaintiff's complaint must be dismissed, even
assuming the truth of the allegations in the complaint, State defendants would further assert that
additional factual information is unnecessary to decide the motion for a preliminary injunction. To
the extent the Court deems additional information necessary to decide the issues raised by the
plaintiff in its application for a preliminary injunction, however, the affidavits of William F. Bruso,
Jr. and Joseph J. Rabito offer further support for the State defendants' assertion that the plaintiff has
failed to assert a viable claim.
It is clear, based on those affidavits, that the State's action in this case was pursuant to and
consistent with its proprietary function as the custodian of State property. Joseph J. Rabito, the
Executive Deputy Commissioner of OGS, made the determination to deny plaintiff's application for
a permit. Rabito Aff., 9. This decision was made based on Mr. Rabito's concerns about the name of
the truck and its various menu items. Rabito Aff., 9-11. Given that these words are commonly
understood to be derogatory, and inconsistent with the purposes of the program, Mr. Rabito made
the determination that the State should not condone those terms in the context of a vending program
in a location populated primarily by State employees and visitors to the Capital. Rabito Aff., 12.
These concerns were communicated to the plaintiff verbally, and in a letter that specifically cited the
applicable regulatory sections. Bruso Aff., 20, 22.
The affidavits further support the historical uses of the Plaza and the intended purpose of the
program. As indicated by William Bruso, Jr., the program was intended to provide lunchtime food
options to State workers and visitors to the Empire State Plaza. Bruso Aff., 6. The Plaza has
7/29/2019 State AG's response: Wandering Dago v. OGS
11/23
9
historically been reserved for the peaceful use and enjoyment by State employees and the visiting
public. Bruso Aff., 9. Given the fact that the Plaza houses numerous State buildings and
employees, any activity permitted on the Plaza is typically recognized as a program supported and
sponsored by the State of New York. Rabito Aff., 5. To the extent that the plaintiff's application
was denied based on a concern that its name and menu items would offend the employees working at
and visitors to the Plaza, this denial is absolutely consistent with the location, as well as the
historical and intended use of this property.
Moreover, a determination by this Court that the plaintiff's First Amendment rights would be
violated based on the denial of its application due to the offensive nature of its name and/or menu
items does not automatically translate into acceptance into the program. There are additional
grounds that would support denial of the plaintiff's application: an incomplete application, late
submission, and the plaintiff vendor's inability to participate in the program from July 8th
to
September 3rd
. Bruso Aff., 15. Although plaintiff has alleged that OGS staff represented those
deficiencies would be waived, Executive Deputy Commissioner Rabito has the authority to make the
decision and did not reach the issue of whether he would be willing to waive those deficiencies.
Rabito Aff., 16. Even if this Court were to determine that the denial of plaintiff's application based
on its business name and/or menu items was inappropriate, the matter should be remitted to OGS to
assess the plaintiff's application on other grounds.
C. Plaintiff has failed to demonstrate a balance of the hardships tipping in its favor.
As noted above and in Point II, infra, the Empire State Plaza is the worksite of approximately
11,000 State employees who would potentially be exposed to plaintiff's offensive language.
Pursuant to Title VII of the Civil Rights act of 1964, every employee is entitled to a workplace free
of discrimination on the basis of national origin and ethnicity. See, e.g, Snell v. Suffolk County, 782
7/29/2019 State AG's response: Wandering Dago v. OGS
12/23
10
F.2d 1094, 1096 (2d Cir. 1986). Similarly, to the extent that members of the public access the
Empire State Plaza to participate in programs receiving federal assistance, they should not be
subjected to language that suggests discrimination "on the ground of race, color, or national origin."
42 U.S.C. 2000d. Nothing plaintiff proffers here suggests that the government must promote the
use of ethnic slurs so that plaintiff can enjoy a playful reference to its owners Italian heritage
(Loguidice aff. 3), and in doing so offend others of similar or diverse birth.
By its application for a preliminary injunction, plaintiff seeks to gain five days of profits, a
benefit that is significantly outweighed by the State's interest in ensuring that its employees and
visitors are free from an environment that is perceived as hostile to their ethnicities and national
origins. In the balance, the State defendants' obligation to its employees and the public to promote
equality and fairness in treatment must supersede the limited intrusion that plaintiff alleges here.
POINT II
PLAINTIFF HAS FAILED TO STATE A CAUSE OF ACTION AND
THE COMPLAINT MUST BE DISMISSED AS A MATTER OF LAW
A. Plaintiff has failed to state a claim for a First Amendment Violation
When the government restricts speech in its proprietary capacity, that action is subject to a
lower level of scrutiny than a similar restriction imposed by the government in its regulatory
capacity. Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 896, 6 L. Ed. 2d 1230, 81 S.
Ct. 1743 (1961).6
The distinction involves the nature of the power exercised, and a recognition of
the government's authority to manage its internal affairs. Id. "[T]he First Amendment does not
6 In presenting its case to this Court, the plaintiff has relied on case law, such as Central
Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 566 (1980), that applies
only to governmental regulation of speech in the context of its general authority to regulate
public conduct. Because the plaintiff's cases do not apply to the instant case, they are not
addressed here.
7/29/2019 State AG's response: Wandering Dago v. OGS
13/23
11
guarantee access to property simply because it is owned or controlled by the government." United
States Postal Serv. v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114, 129 (U.S. 1981). Thus, as
any private owner might, the State has the power to preserve property under its control for its
intended use(s).Id.
The analysis of speech restrictions by the government in its proprietary capacity centers on
the forum in which the restriction is exercised; a restriction in a traditional public forum or on
property expressly dedicated to speech activity (a designated public forum) is examined under strict
scrutiny, while a restriction imposed with respect to property not dedicated to speech activity is
examined only for reasonableness. United States v. Kokinda, 497 U.S. 720, 727 (1990). Courts have
also recognized a subset of the designated public forum called a "limited public forum", "created
only where the government 'makes its property generally available to a certain class of speakers,' as
opposed to reserving eligibility to select individuals who must first obtain permission to gain
access."Hotel Emples. & Rest. Emples. Union, Local 100 v. City of N.Y. Dep't of Parks & Rec., 311
F.3d 534, 545 (2d Cir. 2002), citing Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 679
(1998).
The forum in this case, outdoor space at the Empire State Plaza, is a non-public forum for
purposes of First Amendment analysis. The forum is public in the traditional sense, in that the
public is permitted to freely visit at certain times, but this is not the characteristic upon which
classification as a "public forum" is based in the First Amendment context. Greer v. Spock, 424 U.S.
828, 836 (1976). The dispositive question is whether the government owner has "abandoned any
claim that it has special interests" in regulating the speech permitted in the forum. See Flower v.
United States, 407 U.S. 197, 198 (1972). That is clearly not the case here, nor has this sort of
abandonment been alleged in the complaint.
7/29/2019 State AG's response: Wandering Dago v. OGS
14/23
12
As noted above, OGS is the executive agency charged with "supervision and control of
public buildings of the State of New York, including the Capitol and Executive Mansion, with the
buildings, grounds and premises adjacent or appurtenant thereto or connected thereto or connected
therewith belonging to the state," and with the provision of coordinated services in support of State
departments and agencies. Pub. Buildings Law 2; Exec. Law 202. The Commissioner of OGS is
authorized to "adopt, amend or rescind rules and regulations relating to the discharge of his
functions, powers and duties and those of the office of general services as prescribed by law." Exec.
Law, 200.
In this regard, and on behalf of New York State, the OGS regulations clearly reflect the
intent of the State to preserve its property for particularized intended uses. 9 NYCRR 300-1.1
defines this intent as follows:
The State of New York, through the Office of General Services, operates and
manages various State offices and parking facilities located throughout the State. In
addition to being a workplace for portions of the State workforce, certain Office of
General Services' operated State properties are made available to the public for other
designated purposes. To fulfill its statutory obligations, the Office of General
Services must endeavor to achieve a balance in providing equal access to the publicand a suitable working environment for the State workforce. In determining whether
permission for access and use of State facilities will be granted, the commissioner or
his or her designee may consider the health, welfare and safety of persons, the
security and maintenance of the State property and the normal conduct of State
operations and such other considerations as provided herein. This rule is intended to
be used to protect the public safety, grant equal access to State property to all
citizens, to maintain an orderly environment in which to conduct State business and
preserve the assets of the People of the State of New York, all in a manner which
does not impinge on the constitutional rights of free speech and assembly. Therefore,
to enhance and promote a suitable environment for the use and enjoyment of State
property operated by the Office of General Services, the rules and regulations setforth in this Chapter are hereby established to govern the conduct of the users of
State property.
9 NYCRR Parts 300 and 301 govern the use of state property, and 9 NYCRR subpart 300-3 clearly
defines the permitted and proscribed uses of its property. 9 NYCRR 300-3.2(e) and 301.3(a)
7/29/2019 State AG's response: Wandering Dago v. OGS
15/23
13
expressly prohibit commercial activities except as permitted by OGS. The OGS website also
specifically limits access to the Plaza by visitors.7
Permission to use State property for defined
activities is required. 9 NYCRR 300-3.2, 301.5, 301.6.
The specified grounds upon which an applicant might be excluded from State property,
include but are not limited to a determination by OGS that: "the use or activity intended would
unreasonably interfere with the enjoyment of the location by others;" "the applicant's intended use or
activity is inconsistent with the designated purpose of the specific location requested;" "the location
requested is not suitable for the intended use or activity because of its special nature;" or "the use or
activity intended by the applicant is prohibited by law;" See 9 NYCRR 301.7(i)-(m). Thus, State
property under the supervision and control of OGS is clearly not open to the public in an unfettered
manner, and the rules promulgated by OGS clearly evidence the intent to preserve State property for
its intended use.8
Thus, as the State has generally imposed permitting requirements for the use of
State property under a specified criteria, the Empire State Plaza is a non-public forum.9
When a speech restriction occurs in a non-public forum, the standard of review governing the
restriction is far more limited than that applicable to regulatory action.
7 http://www.ogs.ny.gov/esp/CT/plaza.asp
8 The State's promulgation of rules governing the use of its property stems from its
proprietary rights as the entity that has control over and manages the property, and as an
employer. Regulations governing use of government property are relevant to the determination
of whether the forum is non-public.Hotel Emples. & Rest. Emples. Union, Local 100 v. City of
N.Y. Dep't of Parks & Rec., supra, at 547 (government's intent with respect to property use may
be determined from its policies and regulations).
9 The plaintiff has failed to address forum at all, and has not alleged facts suggesting that
the State has opened its property to any particular type of speaker without requiring a permit, as
necessary to establish a limited public forum. Hotel Emples. & Rest. Emples. Union, Local 100
v. City of N.Y. Dep't of Parks & Rec., supra, at 545. Even if plaintiff had alleged that the outdoor
space in the Plaza was a limited public forum, the reasonableness test would still apply in
connection with the speech at issue. Id. at 552-553.
7/29/2019 State AG's response: Wandering Dago v. OGS
16/23
14
Implicit in the concept of the nonpublic forum is the right to make distinctions in
access on the basis of subject matter and speaker identity. These distinctions may be
impermissible in a public forum but are inherent and inescapable in the process of
limiting a nonpublic forum to activities compatible with the intended purpose of the
property. The touchstone for evaluating these distinctions is whether they are
reasonable in light of the purpose which the forum at issue serves.
Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 49 (U.S. 1983). The reasonableness
of a restriction imposed by the State with respect to a non-public forum is similarly broadly defined:
In addition to time, place, and manner regulations, the State may reserve the forum
for its intended purposes, communicative or otherwise, as long as the regulation on
speech is reasonable and not an effort to suppress expression merely because public
officials oppose the speaker's view.
Id. at 46. "Viewpoint neutral" is not the same thing as "content neutral". Restrictions on ethnic or
racial slurs in a non-public forum are deemed "viewpoint neutral" as long as there is no attempt to
regulate certain slurs but not others. Perry v. McDonald, 280 F.3d 159, 172 (2d Cir. 2001);Defoe v.
Spiva, 625 F.3d 324, 336 (6th Cir. 2010).
As notedabove, the application in the instant case made clear that certain conditions would
apply to any vendor selected to participate in the program. Those conditions include "harassment"
and "name calling". "Harassment" is defined in the Employee Rights and Responsibilities Handbook
applicable to all New York State agencies and employees to include: "words, signs, jokes, pranks,
intimidation or physical violence that is directed at an employee because of his or her membership in
any protected class, or perceived class", and "workplace behavior that is offensive and based on
stereotypes about a particular protected group."10
Handbook, p. 31. National origin is a protected
class pursuant to Human Rights Law 296.1, as well as the federal Civil Rights Act of 1964. See 42
U.S.C. 2000, et. seq. Consistent with the State's definition of "harassment" utilized in other
10 This handbook may be accessed online at:
http://www.goer.ny.gov/Employee_Resources/employee_handbook/2011Employee_Handbook.p
df
7/29/2019 State AG's response: Wandering Dago v. OGS
17/23
15
contexts, denial of the plaintiff's application based on the "offensiveness" of the name (and its menu
items, although this has not been discussed in the plaintiff's complaint), is clearly viewpoint neutral
and reasonable. The plaintiff has failed to allege that the State has a policy or practice that permits
other vendors with business names that contain an ethnic or racial slur to operate on the plaza, and
have thus failed to demonstrate that the denial of plaintiff's application was either unreasonable or
not viewpoint neutral.
Moreover, a ruling that the State may not deny an application to a vendor who is, by its name
and menu items, derogating various ethnic or national origins, that decision would be contrary to
public policy and the State's obligation to prevent the establishment of a hostile work environment. It
is well settled that a hostile work environment may be created based on ethnic slurs. See, e.g., Rivera
v. Rochester Genesee Reg'l Transp. Auth., 702 F.3d 685, 694 2d Cir. 2012). The premise underlying
employer liability in hostile work environment cases is simply this: to the extent an employer knows
of and permits a work environment in which a person's protected status, in this case ethnicity or
national origin, is highlighted in a negative way, the employer is implicitly promoting hostility in the
workplace. SeeDuch v. Jakubek, 588 F.3d 757, 762 (2d Cir. 2009) Should that negative environment
based on protected status become pervasive or severe enough, the employer may be held liable for
failing to prevent its occurrence.Id.
An employer may be held responsible for a hostile work environment created by a non-
employee. See Bronner v. Catholic Charities of the Roman Catholic Diocese of Syracuse, Inc., 2010
U.S. Dist. LEXIS 23805 (N.D.N.Y Mar. 15, 2010), and cases cited therein. Moreover, the creation
of a hostile work environment includes a broadly defined locational scope. See, e.g., Mansuetta v.
Clarkstown Cent. Sch. Dist., 2012 U.S. Dist. LEXIS 178455 (S.D.N.Y. Nov. 13, 2012) (employer
sponsored event);Brooks v. Yellow Transp., Inc., 2012 U.S. Dist. LEXIS 187161 (N.D. Tex. Dec.
7/29/2019 State AG's response: Wandering Dago v. OGS
18/23
16
17, 2012) (break room and restrooms);Blakey v. Continental Airlines, 1997 U.S. Dist. LEXIS 22068
(D.N.J. Mar. 24, 1997) (common areas);Matthews v. Marten Transp., Ltd., 354 F. Supp. 2d 899,
902 (W.D. Wis. 2005) (company vehicles).
The Empire State Plaza includes numerous State offices and houses numerous State
employees. The outdoor area at the Plaza is flanked by those offices, and it is commonly understood
that the space is visible from those offices and used primarily by State employees during peak
working hours, particularly during the lunchtime hours. See, e.g., Complaint, Exh. A. To require the
State, as an employer, to balance the perceived severity of the harassment with the speaker's right to
free speech is antithetic to the employer's responsibility to preserve the quality of the environment
for its employees and would be directly contrary to public policy.
B. Plaintiff has failed to state a claim for an Equal Protection Violation.
Plaintiff's Equal Protection claim sounds in selective enforcement, and rests entirely on the
premise that its application was denied solely to inhibit the plaintiff's First Amendment rights. As the
plaintiff has failed to demonstrate any impropriety in the State's regulation of offensive speech on
the Empire State Plaza during peak working and visitation hours, however, plaintiff's Equal
Protection claim must also fail. As the plaintiff had no right to utilize State property except in the
manner approved by the State, it was entirely proper for the State defendants to deny its application
based on the offensiveness of its name and certain menu items. See Perry Education Ass'n v. Perry
Local Educators' Ass'n, supra, at 55 ("When speakers and subjects are similarly situated, the State
may not pick and choose. Conversely, on government property that has not been made a public
forum, not all speech is equally situated, and the State may draw distinctions which relate to the
special purpose for which the property is used.").
7/29/2019 State AG's response: Wandering Dago v. OGS
19/23
17
C. Plaintiff has failed to state a cause of action against the State defendants for its removal
from the Saratoga Race Course.
Plaintiff attempts to assert a claim against the State defendants concerning its removal
from the Saratoga Race Course, by alleging that defendant Travers "alleged that his decision had
been made because a state official complained about Plaintiff's name." Complaint, 54. This
allegation, based solely on hearsay, is an insufficient basis upon which to keep extant the complaint
against the individual State defendants in this matter insofar as it would be sheer speculation to tie
the phrase "state official" to any one person in particular. See Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007).
It is well settled that a complaint has facial plausibility only when the factual matter asserted
and any reasonable inferences therefrom would support a finding of liability. Ashcroft v. Iqbal, 556
U.S. 662, 678 (U.S. 2009). Accepting as true the allegation that defendant Travers stated that "a
state official" complained about the plaintiff's name, this does not permit a reasonable inference that
the "state official" was from OGS, nor that the state official had any involvement in the decision to
request plaintiff to remove its truck from the race course premises.
Nor is this allegation a sufficient basis upon which to maintain an action against New York
State as a defendant. As set forth more fully below, the State is not a person pursuant to 1983 and
suit may not be maintained against the State as an entity by the plaintiff. Pennhurst State Sch. &
Hosp. v. Halderman, infra. The plaintiff's claim against the State defendants with respect to the
request that it remove its truck from the Saratoga Race Course must be dismissed.
D. Defendants New York State and OGS are immune from suit.
The Eleventh Amendment provides: "The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the United
7/29/2019 State AG's response: Wandering Dago v. OGS
20/23
18
States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const.
amend. XI. Accordingly, an unconsenting State is immune from suits brought in federal courts by
her own citizens as well as by citizens of another state. Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984) (quotation marks and quoted case omitted). In other words, a
suit in which the State or one of its agencies or departments is named as the defendant is proscribed
by the Eleventh Amendment . . . [and t]his jurisdictional bar applies regardless of the nature of the
relief sought. Id. It is well-settled that states are not "persons" under 1983, and thus Eleventh
Amendment immunity is not abrogated by that statute. See, e.g., Green v. Deputy Superintendent,
2013 U.S. Dist. LEXIS 66982 (W.D.N.Y. May 6, 2013), citing Will v. Michigan Dept, of State
Police, 491 U.S. 58, 66-67, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989).
Sovereign immunity under the Eleventh Amendment protects state agencies and departments
as well as the state itself. As the Supreme Court has noted: "It is clear, of course, that in the absence
of consent a suit in which the State or one of its agencies or departments is named as the defendant is
proscribed by the Eleventh Amendment. . . . This jurisdictional bar applies regardless of the nature
of the relief sought." Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100 (1984).
See also Komlosi v. New York State Office of Mental Retardation and Developmental Disabilities,
64 F.3d 810 (2d Cir. 1995) (OMRDD is an arm of the state and is immune under the Eleventh
Amendment). See, e.g., Richards v. State of New York Appellate Division, Second Department, 597
F. Supp. 689 (E.D.N.Y. 1984), aff'd, 767 F.2d 908 (2d Cir. 1985), cert. denied, 474 U.S. 1066
(1986);Daisernia v. State of New York, 582 F. Supp. 792 (N.D.N.Y. 1984). Here, plaintiff has sued
New York State and one of its executive agencies, the New York State Office of General Services.
As the Eleventh Amendment bars suit against the State and its departments, however, both of these
defendants are immune from suit and the complaint should be dismissed with prejudice with respect
7/29/2019 State AG's response: Wandering Dago v. OGS
21/23
19
to these defendants.
The Eleventh Amendment similarly bars claims against the State based on violations of state
law. See Alliance of American Insurers v. Cuomo, 854 F.2d 591, 604 605 (2d Cir. 1988); Kostokv.
Thomas, 105 F.3d 65, 68 (2d Cir. 1997). "The Eleventh Amendment bar against plaintiffs' state law
claim is unaffected by the fact that plaintiffs seek prospective rather than retroactive relief * * * or
by the posturing of plaintiffs' state law cause of action as pendent to plaintiffs' federal * * *
claim[s]." Alliance of American Insurers v. Cuomo, 854 F.2d at 604 605. "[I]t is difficult to think
of a greater intrusion on state sovereignty than when a federal court instructs state officials on how
to conform their conduct to state law." Pennhurst State School & Hospital v. Halderman, 465 U.S.
89, 106 (1984).11
E. The Court should decline to exercise supplemental jurisdiction over the plaintiff's
state law claims.
Jurisdiction of plaintiff's pendent state law claims is based on 28 U.S.C. 1367 (c). Inasmuch
as all federal claims asserted herein should be dismissed for the reasons outlined above, the State
defendants submit that this Court should not exercise supplemental jurisdiction over the remaining
state law claims. Section 1367 permits a district court to decline supplemental jurisdiction over state
11 The Eleventh Amendment would similarly bar the plaintiff's claim for damages against
the individual State defendants in their official capacities. Will v. Michigan Dep't of State Police,
491 U.S. 58, 71 (1989). Moreover, to the extent that plaintiff has sued the State defendants in
their individual capacities, the particular facts alleged here establish, as a matter of law, that the
individual State defendants are entitled to qualified immunity as a reasonable official in the
individual defendants position could believe that denying a permit to plaintiff at the Empire
State Plaza complex did not violate federally protected rights. See, e.g., Lennon v. Miller, 66
F.3d 416, 422 (2d Cir. 1995). An objectively reasonable official could readily believe that it was
appropriate, pursuant to federal law, to prohibit the plaintiff from offending State employees on
the basis of their national origin or ethnicity at their workplace under the particular
circumstances here. See, e.g., Saucier v. Katz, 533 U.S. 194, 202 (2001);Anderson v. Creighton,
483 U.S. 635, 639-640 (1987).
7/29/2019 State AG's response: Wandering Dago v. OGS
22/23
20
claims when, inter alia, it "has dismissed all claims over which it has original jurisdiction." 28
U.S.C. 1367(c)(3). "It is well settled that if the federal claims are dismissed before trial . . . the
state claims should be dismissed as well." Wademan v. Concra, 13 F. Supp.2d 295, 305 (N.D.N.Y.
1998) (quoting West Hartford v. Operation Rescue, 915 F.2d 92, 104 (2d Cir.1990)). For the
reasons set forth above, all of plaintiff's federal causes of action should be dismissed. Should the
Court agree, dismissal of any remaining state law claims is appropriate.
CONCLUSION
For the reasons set forth above, plaintiff's request for a preliminary injunction should be
denied. Defendant's motion to dismiss the complaint should be granted, and this action should be
dismissed in its entirety.
7/29/2019 State AG's response: Wandering Dago v. OGS
23/23
21
Dated: Albany, New York
September 11, 2013
ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
Attorney for Defendants NYS Office of General
Services, RoAnn M. Destito, Joseph J.Rabito, William F. Bruso, Jr., Aaron
Walters and the State of New York
The Capitol
Albany, New York 12224-0341
By:s/ Laura SpragueLaura Sprague
Assistant Attorney General, of Counsel
Bar Roll No. 511478
Telephone: (518) 474-3602Fax: (518) 473-1572 (Not for service of papers)
Email: [email protected]
TO: George F. Carpinello, Esq.
Boies, Schiller Law Firm
30 South Pearl Street, 11th Floor
Albany, NY 12207
Henry M. Greenberg, Esq.
Cynthia Neidl, Esq.
Greenberg Traurig LLP
54 State Street, 6th
Floor
Albany, NY 12207