Colleen Bradley v. West Chester University

Citation: 880 F.3d 643Docket: 17-1588

Court: Court of Appeals for the Third Circuit; January 25, 2018; Federal Appellate Court

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Colleen M. Bradley, while employed as the Director of Budget and Financial Planning at West Chester University of Pennsylvania, raised concerns about the manipulation of the university's budget report, known as the "BUD Report." Specifically, she was instructed by administrators from the Pennsylvania State System of Higher Education (PASSHE) to artificially inflate a budget line item, which would misrepresent the university's financial status. Following her disclosures to colleagues regarding these practices, Bradley's employment contract was not renewed, prompting her to sue the university and several officials, alleging First Amendment retaliation.

The United States District Court for the Eastern District of Pennsylvania dismissed her claims against West Chester University and PASSHE, ruling they were protected by Eleventh Amendment immunity. The court later granted summary judgment in favor of her supervisor, Mark Mixner, despite acknowledging that Bradley's speech was constitutionally protected; it reasoned that Mixner was entitled to qualified immunity. The Third Circuit affirmed the District Court's decisions, agreeing with the immunity ruling and ultimately determining that Bradley's speech was not constitutionally protected, thus upholding the summary judgment in favor of Mixner.

Ms. Bradley engaged in discussions with Mr. Mixner, who labeled the BUD Report a 'political document' and encouraged her cooperation with PASSHE administrators. At a September 20, 2012 meeting of WCU’s Administrative Budget Committee (ABC), she criticized the requested changes to the BUD Report as 'unethical and possibly illegal,' asserting her duty to address the committee about the situation. Mr. Mixner later expressed his disapproval of her comments, warning her that her credibility and future were at stake. During the subsequent ABC meeting on September 27, 2012, Ms. Bradley circulated a memorandum outlining her objections to the deficit shown in the BUD Report and the reporting process, stating her inability to support or justify the budgeting method and expressing disappointment over the threats to her credibility. Despite her concerns, no changes were made to the BUD Report practices.

Over two years later, Mr. Mixner sought Ms. Bradley’s help for a meeting of WCU’s Enrollment Management Committee (EMC) on October 29, 2014, where they discussed budget presentations. The night before, he preferred a budget version that she believed inflated expenses. At the EMC meeting, she presented Mr. Mixner’s budget indicating a $15 million deficit, leading to questions from a member who had anticipated an $11 million surplus. Ms. Bradley found humor in this discrepancy, indicating Mr. Mixner's choice of budget, and subsequently presented an alternate budget that she felt reflected the actual situation. Mr. Mixner reacted negatively to her actions, and when expected to present at a subsequent event, she refused unless allowed to use her budget version. He denied her request and presented his budget instead, leaving Ms. Bradley embarrassed.

Weeks later, Mr. Mixner told Ms. Bradley she was not a cultural fit for the university and would not have her contract renewed. He formalized this in a letter dated November 18, 2014, citing a lack of confidence in her leadership. Her contract expired on June 30, 2015. On May 14, 2015, Ms. Bradley filed a four-count complaint in the Eastern District of Pennsylvania against Mr. Mixner, WCU, PASSHE, and other administrators, claiming her termination was unconstitutional retaliation for protected speech under the First Amendment.

Count II of the complaint, filed under the Pennsylvania Whistleblower Law, alleges unlawful retaliation following Ms. Bradley's termination. Counts III and IV assert claims for intentional and negligent infliction of emotional distress. The District Court dismissed Count I on December 9, 2015, citing Eleventh Amendment immunity for WCU, PASSHE, and their administrators in official capacities, leading to a lack of jurisdiction. Ms. Bradley was permitted to amend her complaint to include the administrators in their individual capacities, which she did on January 15, 2016. On April 19, 2016, the court dismissed Counts I, III, and IV against all defendants except Mr. Mixner individually and dismissed Count II without prejudice to allow refiling in state court.

On March 3, 2017, the District Court granted summary judgment in favor of Mr. Mixner on Count I, recognizing Ms. Bradley’s speech as protected under the First Amendment but concluding that Mr. Mixner was entitled to qualified immunity, as his actions did not violate a clearly established federal right. Ms. Bradley appealed the dismissals based on Eleventh Amendment immunity and the summary judgment in favor of Mr. Mixner. The District Court had jurisdiction under 28 U.S.C. 1331, 1343, and 1367, and the appellate court has jurisdiction under 28 U.S.C. 1291. 

Summary judgment is appropriate when there is no genuine dispute of material fact, requiring the non-moving party to present evidence supporting their case. Courts must draw reasonable inferences in favor of the non-moving party. The appellate review of summary judgment and Eleventh Amendment immunity is conducted de novo. The analysis of Ms. Bradley's First Amendment retaliation claim involves determining if her speech is constitutionally protected and whether the government had a legitimate justification for treating her differently than the general public, with the District Court affirming the protection of her speech while granting summary judgment based on qualified immunity for Mr. Mixner.

The District Court's conclusion regarding the protected status of Ms. Bradley’s speech is disputed, but the judgment in favor of Mr. Mixner is upheld based on other grounds in the record. Speech by government employees is constitutionally protected only when it is made as a citizen on a matter of public concern. If these conditions are not satisfied, no First Amendment claim exists against employer retaliation. While both parties agree that Ms. Bradley's speech addressed a public concern, the Supreme Court's ruling in Garcetti v. Ceballos establishes that public employees speaking as part of their official duties do not enjoy First Amendment protections. The controlling factor in Garcetti was that the deputy district attorney's memo was written as part of his official responsibilities. The Court noted the need for a practical inquiry into the scope of an employee's duties, which has been further defined in subsequent cases. For instance, in Foraker v. Chaffinch, state troopers were found to be speaking in their official capacity when raising concerns about a firing range. Similarly, in Gorum v. Sessoms, a university professor acted within his duties when advising a student and managing a university event. In De Ritis v. McGarrigle, a public defender's in-court comments were deemed part of his official role. Conversely, in Dougherty v. School District of Philadelphia, a school employee's disclosures to a newspaper were considered citizen speech, and in Flora v. County of Luzerne, a public defender's class action lawsuit was also viewed as citizen speech.

Ms. Bradley asserts that her comments regarding budget concerns during the EMC meeting on October 29, 2014, were made as a citizen rather than in her official capacity. However, her speech is deemed unprotected by the First Amendment based on established precedents (Garcetti, Foraker, Gorum, and De Ritis) since it was made pursuant to her official duties. Her job description required her to review and recommend changes to the university's budget processes, and she acknowledged these responsibilities. Ms. Bradley attended the meeting at the request of her supervisor, Mr. Mixner, and there is no evidence that the meeting was open to the public. She presented her alternative budget in response to a committee member's inquiry, indicating that her remarks were part of her employment obligations.

While Ms. Bradley references Mr. Mixner's deposition, which suggested that investigating financial misrepresentations was not part of her ordinary duties, the court distinguishes between recommending changes and making allegations of fraud. The court concludes that her role involved scrutinizing the budget process, which she was fulfilling at the meeting. Despite her claims of speaking as a citizen, the court finds that she was acting within her official capacity when responding to questions during the meeting.

The court acknowledges that speech regarding government misconduct typically receives strong First Amendment protection but emphasizes that public employees cannot elevate personal grievances to constitutional issues. Consequently, since Ms. Bradley's speech was made in her capacity as a government employee, her First Amendment claim fails, and the District Court's summary judgment in favor of Mr. Mixner is upheld.

Additionally, the court affirms the District Court's ruling that PASSHE and WCU are entitled to Eleventh Amendment immunity, which protects states and certain state entities from being sued for damages in federal court to maintain their financial integrity and dignity.

The excerpt outlines the legal framework for determining whether a state-affiliated entity qualifies as an "arm of the State" entitled to Eleventh Amendment immunity, utilizing a three-step balancing test known as the "Fitchik factors." The District Court previously ruled that the Pennsylvania State System of Higher Education (PASSHE) and West Chester University (WCU) were entitled to such immunity based on the precedent set in Skehan v. State System of Higher Education and subsequently dismissed Ms. Bradley's § 1983 claim against them.

Ms. Bradley argues for a reevaluation based on changes in Eleventh Amendment jurisprudence since the 1990s, referencing Cooper v. Southeastern Pennsylvania Transportation Authority. However, upon review, the court maintains its earlier conclusion that both PASSHE and WCU are entitled to Eleventh Amendment immunity, thus not liable for damages in federal court.

The analysis includes the Fitchik factors: 

1. **Funding Factor**: This assesses whether state funds would be used to pay judgments. Although the defendants acknowledge that this factor leans toward Ms. Bradley's position—given state law protects the Commonwealth’s treasury from liabilities incurred by PASSHE and WCU and that these institutions have alternative revenue sources—the court's recalibration of the factors dilutes the impact of this finding.

2. **Status Under State Law**: This factor examines how the state perceives these entities, considering statutory indications, relevant case law, and whether the entities are subject to laws that the state has waived its immunity from.

The court concludes that despite the funding factor suggesting a lack of immunity, the other Fitchik factors must be weighed equally, leading to the reaffirmation of Eleventh Amendment immunity for PASSHE and WCU.

Key considerations include the incorporation status of PASSHE and its universities, their ability to sue and be sued, state tax immunity, power of eminent domain, compliance with state administrative and civil service laws, and contractual and property ownership capabilities. Pennsylvania law consistently recognizes PASSHE and its universities as state entities, thereby favoring Eleventh Amendment immunity for them. Act 188, which established PASSHE in 1982, classifies it as part of the Commonwealth’s higher education system while maintaining some independence from the Pennsylvania Department of Education. Commonwealth funding to PASSHE is treated as ordinary governmental expenses, differing from funding to independent schools, which requires a two-thirds legislative vote.

Pennsylvania courts categorize PASSHE and its universities as 'Commonwealth agencies' under the Pennsylvania Judicial Code and Administrative Agency Law, granting them sovereign immunity except where waived, contrasting with local governments that only have limited governmental immunity. They are also subject to state administrative procedures, including regulatory oversight and required submissions to the Attorney General and Governor’s General Counsel.

Although PASSHE is separately incorporated, which complicates the arm-of-the-state analysis, it does not exercise eminent domain and lacks civil service law applicability. They can sue and be sued, with legal representation provided by state officials. Their real property is generally immune from state taxes, though local taxes may apply based on usage. Despite their ability to contract and own real estate, these powers have specific limitations. Overall, the analysis indicates that Pennsylvania treats PASSHE and its universities as extensions of the state.

Statutory and case law equate certain educational institutions with state governments, suggesting that distinctions like separate incorporation are more about form than function, thus favoring Eleventh Amendment immunity. Additionally, universities' real property may be exempt from real estate taxes unless leased for private or commercial purposes, as illustrated by prior case law. 

The autonomy factor, which evaluates the governing structure and state oversight, indicates that institutions like the Pennsylvania State System of Higher Education (PASSHE) and its universities are not autonomous and face significant state control, supporting Eleventh Amendment immunity. PASSHE operates under a Board of Governors (BOG) composed of twenty members, including state officials and appointees with specific terms and conditions. Each university is overseen by a Council of Trustees (COT), also appointed by the Governor. Prior rulings have established that institutions with such governance structures, where state officials hold appointment power, are typically granted Eleventh Amendment immunity.

The excerpt examines the authority and limitations of the Board of Governors (BOG) and the Council of Trustees (COT) of the Pennsylvania State System of Higher Education (PASSHE) in relation to the Governor's appointment powers. Key points include:

1. All members of the BOG and COT are appointed by the Governor, contrasting with the case of Rutgers University, where fewer than half of the Board of Trustees were Governor-appointed, which led to a denial of Eleventh Amendment immunity.
2. Although previous cases (Bowers and Maliandi) noted that board members could be removed "for cause," the absence of such a provision in Act 188 implies that members may be removed at the Governor's discretion, enhancing executive control over these bodies.
3. The Pennsylvania Constitution allows the Governor to remove appointed civil officers, and the state courts have affirmed this principle even when appointments are for fixed terms.
4. PASSHE and its universities face statutory limitations on their autonomy, including requirements for General Assembly approval for property transactions and the necessity to engage in coalition bargaining for employee negotiations.
5. Contracts exceeding a certain threshold must undergo competitive bidding, and unlike other cases, Act 188 does not provide staggered terms for board members, meaning the Governor's removal power remains unrestricted.
6. PASSHE and its universities are subject to strict reporting and governance requirements, including audits by the Commonwealth’s Auditor General and mandatory annual reports to the General Assembly and the Department of Education.

Overall, the governance structure of PASSHE involves significant executive oversight and statutory constraints that limit the autonomy of its appointed boards.

PASSHE and its universities exhibit limited autonomy from the state, as evidenced by numerous indicators of state control and a constrained governing structure. This analysis aligns with precedents set in Bowers and Maliandi, leading to a strong conclusion in favor of Eleventh Amendment immunity for these institutions. The examination of the Fitchik factors reveals that two factors support this immunity while one does not. Consequently, despite potential difficulties for litigants like Ms. Bradley in seeking relief, the principles of comity and state sovereignty necessitate upholding the District Court's dismissal of her claims under Section 1983. Additionally, Ms. Bradley's lack of citizen status during a specific meeting negates her First Amendment claim, resulting in the affirmation of the District Court's summary judgment in favor of Mr. Mixner and the dismissal of Count I against PASSHE and WCU.