Leitner v. Westchester Cmty. Coll., Docket No. 14–1042–cv.

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtCHIN
Citation779 F.3d 130
PartiesCarol LEITNER, Plaintiff–Appellee, v. WESTCHESTER COMMUNITY COLLEGE, Joseph Hankin, in his personal and official capacity as President of Westchester Community College, Chet Rogalski, in his personal and official capacity as Dean and Vice President of Academic Affairs, Jianping Wang, in her personal and official capacity as Associate Dean of the Arts and Humanities, Gabrielle Miller, in her personal and official capacity as Curricular Chairperson of the Communications and Media Arts Department, Defendants–Appellants, Westchester Community College Federation Of Teachers Local 2431, Defendant.
Docket NumberDocket No. 14–1042–cv.
Decision Date25 February 2015

779 F.3d 130

Carol LEITNER, Plaintiff–Appellee,
v.
WESTCHESTER COMMUNITY COLLEGE, Joseph Hankin, in his personal and official capacity as President of Westchester Community College, Chet Rogalski, in his personal and official capacity as Dean and Vice President of Academic Affairs, Jianping Wang, in her personal and official capacity as Associate Dean of the Arts and Humanities, Gabrielle Miller, in her personal and official capacity as Curricular Chairperson of the Communications and Media Arts Department, Defendants–Appellants,
Westchester Community College Federation Of Teachers Local 2431, Defendant.

Docket No. 14–1042–cv.

United States Court of Appeals,
Second Circuit.

Argued: Sept. 22, 2014.
Decided: Feb. 25, 2015.


[779 F.3d 132]


Curtis B. Leitner (Catherine M. Foti, on the brief), Morvillo Abramowitz Grand Iason & Anello P.C., New York, New York, for Plaintiff–Appellee.

Denise M. Cossu (John M. Murtagh, on the brief), Gaines, Novick, Ponzini, Cossu & Venditti, LLP, White Plains, New York, for Defendants–Appellants.


Before: LEVAL, CHIN, and CARNEY, Circuit Judges.

CHIN, Circuit Judge:

In this case, plaintiff-appellee Carol Leitner was an adjunct professor at Westchester Community College, a community college in the State University of New York (“SUNY”) system. She was fired, purportedly for making offensive comments in class. She sued Westchester Community College and certain of its administrators (collectively “WCC”), claiming that they violated her state and federal constitutional rights.

The district court (Seibel, J.) granted in part and denied in part WCC's motion to dismiss. In relevant part, the district court concluded that WCC was not entitled to sovereign immunity under the Eleventh Amendment. We agree. Accordingly, we affirm.1

STATEMENT OF THE CASE
A. The Facts

For purposes of this appeal, the facts alleged in Leitner's first amended complaint are assumed to be true. In addition, the organizational facts relevant to the sovereign immunity question are set forth in the governing statutes and are largely undisputed.

1. WCC

SUNY is a higher education system established by the New York State Education Department, and WCC is a community college within the SUNY system. By statute, SUNY is comprised of four university centers, various technical and specialized colleges, “and such additional universities, colleges and other institutions” as are “acquired, established, operated or contracted to be operated for the state by the state university trustees.” N.Y. Educ. Law § 352(3). New York law defines “community colleges” as “[c]olleges established and operated pursuant to the [New York Education Law] ... and receiving financial assistance from the state.” N.Y. Educ. Law § 350(2).

The laws of Westchester County provide that WCC is a “county department.” Laws of Westchester County § 164.71. WCC is locally sponsored by Westchester County and is predominately operated by and accountable to county authorities. SeeN.Y. Educ. Law §§ 355, 6306. WCC's Board of Trustees is composed of ten members: four are appointed by the governor of New York, five are appointed by the Westchester County Board, and one is appointed by WCC's student body. WCC's Board appoints WCC's President, adopts the curriculum, and prepares the annual budget, all subject to approval by SUNY's Board. N.Y. Educ. Law § 6306(2). Judgments against WCC are paid out of its

[779 F.3d 133]

budget, one-third of which is provided by the state. SeeN.Y. Educ. Law § 6304(1).

WCC has adopted a three-step procedure for disciplining faculty members, which is memorialized in a WCC memorandum written in 1983. The memorandum states that if the administration learns of “some difficulty with the performance or decorum of a faculty member,” the following disciplinary procedures are followed: (1) an informal meeting with the associate dean, department chairperson, and union representative, followed by a letter summarizing the meeting; (2) if the problem recurs, a second meeting with the parties, after which an administrator will draft a letter detailing the problem and course of remediation; and (3) if the problem persists, a hearing with the parties and WCC's dean, after which the dean may recommend termination of the faculty member. June 3, 1983 Memorandum of John F.M. Flynn.

2. Leitner's Employment at WCC

In 1981, Leitner began working as an adjunct professor at WCC, and for thirty years, she regularly taught classes in “Speech Communication” and “Voice and Diction.” In 2004, Leitner had a step-one meeting to address WCC's criticism of “her refusal to lower her academic standards.” App. at 504. In 2007, Leitner had a step-two meeting to address a number of student complaints that Leitner made offensive remarks during class. After this meeting, WCC directed Leitner not to use “any language that [could] be construed as abusive, belittling, humiliating, or insulting” and to “treat every student with courtesy and respect.” App. at 505.

In the fall 2010, an incident during one of Leitner's classes led to her step-three meeting, and, ultimately, WCC's termination of her employment. During a class discussion after a student's recitation of a poem, Leitner expressed her approval of Arizona's controversial immigration law and her doubts about the fairness of spending taxpayer money on public services for illegal immigrants. In June 2011, Leitner had a step-three hearing. Based on what WCC contended was a pattern of student complaints and Leitner's continued failure to comply with previous directives to follow WCC's speech code, WCC dismissed Leitner, effective July 6, 2011. Leitner contends that her termination “was the culmination of the administration's longstanding campaign of retaliation against her.” App. at 519.

B. Proceedings Below

On May 11, 2012, Leitner filed a complaint against WCC alleging that WCC improperly retaliated against her in response to her constitutionally protected in-class speech. Leitner pled First Amendment retaliation claims and as-applied vagueness and overbreadth claims pursuant to 42 U.S.C. § 1983 and Article I, Sections 6 and 8 of the New York State Constitution. In her amended complaint, Leitner added claims against the Union for breach of duty of fair representation and against WCC for violating her rights under the collective bargaining agreement.

WCC moved to dismiss Leitner's complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) arguing, in relevant part, that the court lacked subject matter jurisdiction, the complaint failed to state a claim upon which relief could be granted, and that WCC was entitled to immunity. Ruling from the bench on March 24, 2014, the district court, in relevant part, held that WCC was not entitled to sovereign immunity under the Eleventh Amendment. On April 4, 2014, WCC filed this interlocutory appeal challenging the

[779 F.3d 134]

district court's denial of sovereign immunity.

DISCUSSION
A. Applicable Law
1. Jurisdiction and Standard of Review

Our jurisdiction is generally limited to hearing “final decisions of the district courts.” 28 U.S.C. § 1291. We do, of course, have jurisdiction to hear appeals from the small class of non-final “collateral” district court orders that “finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). District court orders rejecting Eleventh Amendment sovereign immunity claims fall within this small class of collateral district court orders. Hence, we have jurisdiction to hear this appeal. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993); Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 235 (2d Cir.2006).

In considering whether a governmental entity is entitled to Eleventh Amendment sovereign immunity, we review the district court's factual findings for clear error and its legal conclusions de novo. McGinty v. New York, 251 F.3d 84, 90 (2d Cir.2001). All Circuits to have considered the question, including our own, require the party asserting Eleventh Amendment immunity to bear the burden of demonstrating entitlement. Woods, 466 F.3d at 237.

2. Eleventh Amendment Sovereign Immunity

The Eleventh Amendment generally bars suits in federal court by private individuals against non-consenting states. Port Authority Trans–Hudson Corp. v. Feeney, 495 U.S. 299, 304, 110 S.Ct. 1868, 109 L.Ed.2d 264 (1990). This immunity from suit encompasses not just actions in which a state is actually named as a defendant, but also certain actions against state agents and instrumentalities, including actions for the recovery of money from the state. See Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429, 117 S.Ct. 900, 137 L.Ed.2d 55 (1997); Hans v. Louisiana, 134 U.S. 1, 15, 10 S.Ct. 504, 33 L.Ed. 842 (1890). The question is whether the state instrumentality is independent or whether it is an “arm of the state.” See Alden v. Maine, 527 U.S. 706, 756, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). Sovereign immunity does not, however, extend to local governments or municipalities. See id.

The Supreme Court has not articulated a clear standard for determining whether a state entity is an “arm of the state” entitled to sovereign immunity, and the Circuits have applied different tests for establishing sovereign immunity. The Supreme Court has emphasized, however, that “the Eleventh Amendment's twin reasons for being”—preserving the state's treasury and protecting the integrity of the state—“remain our prime guide.” Hess v. PATH, 513 U.S. 30, 47–48, 115 S.Ct. 394, 130 L.Ed.2d 245 (1994). The first factor, “the vulnerability of the State's purse,” is “the most salient factor in Eleventh Amendment determinations.”...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT