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Leitner v. Westchester Cmty. College

United States Court of Appeals, Second Circuit

February 25, 2015

CAROL LEITNER, Plaintiff-Appellee,
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

Argued September 22, 2014

Page 131

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. Interlocutory appeal from an order of the United States District Court for the Southern District of New York (Seibel, J.), denying in part defendants-appellants' motion to dismiss plaintiff-appellee's first amended complaint. The district court held that defendants-appellants -- a community college and certain of its administrators -- are not " arms of the state" entitled to Eleventh Amendment sovereign immunity.

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.


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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]


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. See N.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

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budget, one-third of which is provided by the state. See N.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, ...

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