state ag's response: wandering dago v. ogs

7/29/2019 State AG's response: Wandering Dago v. OGS

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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


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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


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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).


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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


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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).


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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


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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


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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


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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


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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


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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


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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.


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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.


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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)


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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.


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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


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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.


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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.").


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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


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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


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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).


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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.


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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

state ag's response: wandering dago v. ogs

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