880 F.3d 643 (3rd Cir. 2018), 17-1588, Bradley v. West Chester University of Pennsylvania State System of Higher Education

Docket Nº:17-1588
Citation:880 F.3d 643
Opinion Judge:BRANN, District Judge.
Party Name:Colleen M. BRADLEY, Appellant v. WEST CHESTER UNIVERSITY OF the PENNSYLVANIA STATE SYSTEM OF HIGHER EDUCATION; Mark Mixner; Lawrence A. Dowdy; Dr. Gregory R. Weisenstein; Dr. Mark G. Pavlovich; Pennsylvania State System of Higher Education; Lois M. Johnson
Attorney:Daniel J. Kearney [ARGUED], Adams Kearney, Edward S. Mazurek, Counsel for Appellant Josh Shapiro, Attorney General, John G. Knorr, III [ARGUED], Chief Deputy Attorney General, Chief, Appellate Litigation Section, Stephen R. Kovatis, Deputy Attorney General, Office of Attorney General of Pennsylva...
Judge Panel:Before: SMITH, Chief Judge, HARDIMAN, Circuit Judge, and BRANN, District Judge
Case Date:January 26, 2018
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
SUMMARY

Bradley was Director of Budget and Financial Planning at the West Chester University of Pennsylvania (WCU). During preparation of a budget report for the Pennsylvania State System of Higher Education, Bradley was instructed to increase a line item by several million dollars, to “swing” a multi-million dollar surplus to a multi-million dollar deficit. She was told that the report “was a political... (see full summary)

 
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880 F.3d 643 (3rd Cir. 2018)

Colleen M. BRADLEY, Appellant

v.

WEST CHESTER UNIVERSITY OF the PENNSYLVANIA STATE SYSTEM OF HIGHER EDUCATION; Mark Mixner; Lawrence A. Dowdy; Dr. Gregory R. Weisenstein; Dr. Mark G. Pavlovich; Pennsylvania State System of Higher Education; Lois M. Johnson

No. 17-1588

United States Court of Appeals, Third Circuit

January 26, 2018

Argued November 8, 2017

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On Appeal from the United States District Court for the Eastern District of Pennsylvania (E.D. Pa. No. 2-15-cv-02681) District Judge: Honorable Michael M. Baylson

Daniel J. Kearney [ARGUED], Adams Kearney, Edward S. Mazurek, Counsel for Appellant

Josh Shapiro, Attorney General, John G. Knorr, III [ARGUED], Chief Deputy Attorney General, Chief, Appellate Litigation Section, Stephen R. Kovatis, Deputy Attorney General, Office of Attorney General of Pennsylvania, Strawberry Square, Counsel for Appellees

Before: SMITH, Chief Judge, HARDIMAN, Circuit Judge, and BRANN, District Judge[*]

OPINION

BRANN, District Judge.

While employed in an administrative position at West Chester University of Pennsylvania, Colleen Bradley shared her concerns about one of the school’s budget documents with her colleagues. Subsequently, she was informed by her supervisor that her employment contract would not be renewed. Arguing that her speech was protected by the First Amendment to the United States Constitution and that her termination was in retaliation for that speech, she sued the school, the Pennsylvania State System of Higher Education, her supervisor, and several other administrators.

The United States District Court for the Eastern District of Pennsylvania dismissed Ms. Bradley’s claim against West Chester and the State System, holding that those institutions were entitled to immunity under the Eleventh Amendment to the United States Constitution. After discovery, the District Court granted summary judgment in favor of Ms. Bradley’s supervisor, Mark Mixner, holding that, although Ms. Bradley’s speech was constitutionally protected, Mr. Mixner was entitled to qualified immunity.

We will affirm both of these rulings of the District Court. We agree with the District Court’s holding on Eleventh Amendment immunity, and therefore uphold its dismissal of the claims against West Chester

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and the State System. We disagree with the District Court’s holding on the protected status of Ms. Bradley’s speech, but because we hold that the speech was not constitutionally protected, we uphold its grant of summary judgment in favor of Mr. Mixner.

I.

A.1

Colleen Bradley was hired as Director of Budget and Financial Planning at the West Chester University of Pennsylvania (" WCU" ) in November 2011. In that position, Ms. Bradley was responsible for, inter alia, reviewing the university’s budget creation process and recommending improvements to it, as well as attending and participating in various administrative meetings. Ms. Bradley’s immediate supervisor at WCU was Mark Mixner, the university’s Vice President of Finance and Administration.

One of Ms. Bradley’s regular assignments was to assist in the preparation of what was known as a " BUD Report." 2 As a member institution of the Pennsylvania State System of Higher Education (" PASSHE" ),3 WCU regularly submitted a budget— or BUD Report— to PASSHE. PASSHE, in turn, would compile its member universities’ BUD Reports and submit them to the Commonwealth for appropriation purposes.

While creating one of WCU’s annual BUD Reports, Ms. Bradley was instructed by PASSHE administrators to increase the " Transfer to Plant" line item in the report by several million dollars, which would " swing" the report’s showing of a multi-million dollar surplus to a showing of a multi-million dollar deficit.4 The " swing," in her view, was purposely designed; when she questioned a PASSHE administrator about the practice, she was told that the BUD Report " was a political document[,] and if you don’t present this deficit, your appropriation money is at risk." 5 Ms. Bradley also spoke to Mr. Mixner, who agreed with the characterization of the BUD Report as a " political document" and urged Ms. Bradley to cooperate with the PASSHE administrators’ request.6

Ms. Bradley regularly attended the weekly meetings of WCU’s Administrative Budget Committee (" ABC" ). On September 20, 2012, at one of these meetings, Ms. Bradley discussed the BUD Report, expressing her belief that the PASSHE-requested alterations were " unethical and quite frankly, [possibly] illegal." 7 She also told the ABC that " I’m bringing it to this committee because I feel as though it is my responsibility because you are the budget committee, and I just need to explain the predicament we’re all in." 8 A few days later, Mr. Mixner expressed his displeasure

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at Ms. Bradley’s comments to the ABC, noting that he " could not believe that [she] would present such a packet to the budget committee," and that her " credibility as well as [her] future was at risk." [9]

At the next ABC meeting, on September 27, 2012, Ms. Bradley circulated a memorandum documenting her concerns. It noted that she " object[ed] to [the] submission" of the BUD Report showing a deficit, and " to the entire reporting process." 10 It also stated that: I am an employee of the State and the University and it is my responsibility to report data that I can support and explain. Currently, I cannot explain or justify this budgeting technique and the implications make me very uncomfortable. I have openly and cooperatively been seeking answers to authenticate the data, but have not received any response. In the meantime, it has been explained to me that my actions last week have endangered my credibility and I find this hugely disappointing due to [sic] I am seeking truth and trying to perform my job with integrity and honesty.11

Presumably, however, Ms. Bradley’s actions did not persuade anyone at PASSHE or WCU to change the BUD Report practice at that time.

More than two years after the September 2012 ABC meetings, Mr. Mixner asked Ms. Bradley to assist in preparations for an October 29, 2014 meeting of WCU’s Enrollment Management Committee (" EMC" ), which was being held to prepare for a presentation to a group of WCU’s " opinion leaders" the following day.12 Leading up to the meeting, Mr. Mixner and Ms. Bradley considered several possible budgets for presentation to the EMC. The night before the meeting, however, Mr. Mixner indicated his desire to use a version of the budget with " non-discounted scenarios" — i.e., in Ms. Bradley’s opinion, a version of the budget that " inflated the expenses." 13

At the EMC meeting, Ms. Bradley presented Mr. Mixner’s preferred budget, which showed a $15 million deficit. An EMC member, who had apparently believed that WCU had an $11 million surplus, queried how such a deficit was possible, especially in light of increased enrollment at WCU. Ms. Bradley expressed amusement at this question (" Well, it’s funny that you say that...." ), indicated that Mr. Mixner had chosen that specific budget, and proceeded to present an alternate budget, which, she believed, " presents reality." 14

Mr. Mixner was angered by Ms. Bradley’s decision to present her budget at the EMC meeting. Although she was expected to speak at the " opinion leaders" presentation the next day, Ms. Bradley refused to do so unless she could present her version of the budget. Mr. Mixner refused that request and presented his budget instead. Ms. Bradley did not speak at that presentation and " was embarrassed to be there." 15

A few weeks later, at an in-person meeting, Mr. Mixner told Ms. Bradley that she

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was " not the cultural fit for the university" and that her contract would not be renewed.16 Mr. Mixner formalized this decision in a November 18, 2014 letter, which stated that he " no longer ha[d] confidence that [she] can provide the leadership that the University needs." 17 Ms. Bradley’s contract expired on June 30, 2015.

B.

On May 14, 2015, Ms. Bradley initiated the instant action by filing a four-count complaint in the Eastern District of Pennsylvania against Mr. Mixner, WCU, PASSHE, and a number of other WCU and PASSHE administrators. In Count I, brought under 42 U.S.C. § 1983, she alleged that her termination was unconstitutional retaliation for speech protected by the First Amendment. In Count II, brought under the Pennsylvania Whistleblower Law, 43 P.S. § § 1421-28, she likewise alleged that her termination was unlawful retaliation. In Counts III and IV, Ms. Bradley alleged that defendants actions constituted, respectively, intentional and negligent infliction of emotional...

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