Gorton v. Gettel, No. 07-3190 (2d Cir. 2009)
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07-3190-cv Gorton v. Gettel 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2008 (Argued: November 25, 2008 Decided: January 28, 2009) Docket No. 07-3190-cv - - - - - - - - - - - - - - - - - - - -x CARRIE GORTON, Plaintiff-Appellee, -v.BRUCE GETTEL, Defendant, SULLIVAN COUNTY BOCES, Defendant-Appellant. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, WALKER and CALABRESI, Circuit Judges. Defendant-Appellant Sullivan County BOCES appeals, 32 under the collateral order doctrine, the June 22, 2007 order 33 of the United States District Court for the Southern 34 District of New York (Robinson, J.) denying Appellant s 35 motion seeking summary judgment on the ground that it is an 36 arm of New York State entitled to Eleventh Amendment 37 immunity. We affirm. 1 2 3 4 5 6 7 8 9 10 ANNA J. ERVOLINA, Morris Duffy Alonso & Faley, New York, NY , for Defendant-Appellant. MICHAEL H. SUSSMAN, Goshen, NY , for Plaintiff-Appellee. PER CURIAM: 11 Defendant-Appellant Sullivan County BOCES appeals, 12 under the collateral order doctrine, the June 22, 2007 order 13 of the United States District Court for the Southern 14 District of New York (Robinson, J.) denying summary judgment 15 and holding that Sullivan County BOCES is not an arm of New 16 York State entitled to Eleventh Amendment immunity. 17 affirm primarily for the reasons given by the district court 18 in its thorough and well-reasoned opinion. We 19 New York Education Law § 1950 permits supervisory 20 school districts in New York State to create boards of 21 cooperative educational services ( BOCES ) for the purpose 22 of distributing the cost of certain educational services 23 among school districts. 24 in 1950 pursuant to this statute. Sullivan County BOCES was created 25 Plaintiff-Appellee Carrie Gorton filed a complaint in 26 2004 alleging that during her two years of employment as a 27 counselor and recruiter at Sullivan County BOCES, she was 2 1 harassed repeatedly by defendant Bruce Gettel, a fellow 2 teacher. 3 summary judgment arguing, inter alia, that it is an arm of 4 New York State entitled to Eleventh Amendment immunity. 5 district court denied Appellant s motion. 6 After discovery, Sullivan County BOCES moved for The [A]s a general rule, state governments may not be sued 7 in federal court unless they have waived their Eleventh 8 Amendment immunity. 9 Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006) (citing Woods v. Rondout Valley Cent. School 10 Lapides v. Bd. of Regents, 535 U.S. 613, 618-19 (2002)). 11 Eleventh Amendment immunity extends to state agents and 12 state instrumentalities that are, effectively, arms of a 13 state. 14 omitted). 15 against municipal corporation[s] or other governmental 16 entit[ies] which [are] not . . . arm[s] of the State. 17 (quoting Alden v. Maine, 527 U.S. 706, 756 (1999)). Id. (internal quotation marks and citations However, immunity does not extend to suits Id. 18 States and state entities that claim to be arms of the 19 state may take advantage of the collateral order doctrine to 20 appeal a district court order denying a claim of Eleventh 21 Amendment immunity. 22 541 U.S. 509, 514 n.1 (2004)). 23 entity is an arm of the state, we review the district Id. at 235 (quoting Tennessee v. Lane, 3 In considering whether an 1 court s factual findings for clear error and its legal 2 conclusions de novo. 3 90 (2d Cir. 2001)). 4 immunity to demonstrate that it is an arm of the state. 5 Woods, 466 F.3d at 237. 6 See McGinty v. New York, 251 F.3d 84, The burden is on the party seeking Six factors determine whether an entity is an arm of 7 the state: (1) how the entity is referred to in its 8 documents of origin; (2) how the governing members of the 9 entity are appointed; (3) how the entity is funded; 10 (4) whether the entity s function is traditionally one of 11 local or state government; (5) whether the state has a veto 12 power over the entity s actions; and (6) whether the 13 entity s financial obligations are binding upon the state. 14 McGinty, 251 F.3d at 95-96 (citing Mancuso v. New York State 15 Thruway Auth., 86 F.3d 289, 293 (2d Cir. 1996)). 16 factors point in the same direction, a court s analysis is 17 complete. 18 directions, a court must ask whether a suit against the 19 entity in federal court would threaten the integrity of the 20 state and expose its treasury to risk. 21 Mancuso, 86 F.3d at 293). 22 a concern for the state fisc will control. Id. at 96. If all If the factors point in different Id. (citing If the answer is still in doubt, 23 4 Id. 1 We have held that local school districts in New York 2 State are not arms of the state. 3 Cent. School Dist., 802 F.2d 21, 27-28 (2d Cir. 1986), 4 overruled on other grounds by Taylor v. Vt. Dep t of Educ., 5 313 F.3d 768, 786 (2d Cir. 2002). 6 conclusion with respect to New York s local boards of 7 education. 8 are influential here, because BOCES share many common 9 features with local school districts and boards of 10 11 See Fay v. S. Colonie We reached the same See Woods, 466 F.3d at 251. These precedents education. Applying the first factor of the six-part test, the 12 district court observed that the authorizing statute refers 13 to BOCES as bod[ies] corporate, N.Y. Educ. Law § 1950(6), 14 the same term that the New York Education Law uses to 15 describe school districts, see id. at § 1701. 16 held that characterization weighed against immunity. 17 F.3d at 243-44. 18 conclusion. 19 In Woods, we 466 The district court reached the same Sullivan County BOCES contests that this factor weighs 20 in favor of immunity because BOCES exist at the discretion 21 of the New York State Commissioner of Education 22 ( Commissioner ) and are creatures of New York State law. 23 However, the Commissioner also controls the creation of 5 1 school districts, see N.Y. Educ. Law §§ 1801-02, which we 2 have held are not arms of the state. 3 also argues that this factor favors immunity because a 4 BOCES, unlike a board of education, does not govern an 5 entity defined as a municipal corporation. 6 consideration was relevant to our analysis of the first 7 factor in Woods, 466 F.3d at 244, the distinction is 8 insufficient to tip this factor in Appellant s favor. 9 therefore agree with the district court that the first 10 11 Sullivan County BOCES Although this We factor weighs against immunity. The district court concluded, consistent with Woods, 12 that the second and third factors also weigh against 13 immunity because the New York Education Law provides that 14 [b]oards of education and school trustees, shall elect the 15 members of [a BOCES], 16 BOCES shall be funded by constituent school districts, id. 17 § 1950(4), (5). N.Y. Educ. Law § 1950(2-b), and that We agree. 18 The district court determined that the fourth factor is 19 neutral because the education function in New York is shared 20 between state and local governments, Woods, 466 F.3d at 245- 21 47, and that the fifth factor weighs in favor of immunity 22 because the New York Education Law grants the Commissioner 23 substantial veto power over BOCES decisions. 6 See, e.g., 1 N.Y. Educ. Law § 1950(1) (vesting power in Commissioner to 2 establish BOCES boards); id. § 1950(4)(b)(7) (stating that 3 Commissioner shall have final approval of allocation of 4 BOCES expenses among school districts); id. § 1950(4)(d)(1) 5 (requiring Commissioner s approval for provision of any 6 shared service); id. § 1950(4)(p)(a) (mandating that 7 Commissioner approve lease renewals). 8 was correct. 9 The district court Finally, the district court ruled that the sixth factor 10 weighs against granting immunity, noting our emphasis in 11 Woods, 466 F.3d at 249, on New York Education Law § 1709(8- 12 c), which requires boards of education to maintain a 13 program of reserves to cover property loss and liability 14 claims. 15 because [t]he existence of this reserve fund suggests that 16 any judgment against a local New York board of education 17 would be paid out of its established fund rather than the 18 state treasury 19 Education Law permits BOCES to establish similar reserve 20 funds. 21 This provision was deemed significant in Woods . . . . Id. Section 1950 of the New York N.Y. Educ. Law § 1950(4)(aa). Sullivan County BOCES argued in district court--and 22 here--that any judgment would be binding on New York State 23 because it provides BOCES financial support. 7 But as the 1 district court observed, New York State also provides 2 substantial aid to school districts, which are not arms of 3 the state. 4 be liable for indemnifying a judgment against Appellant or 5 that a judgment would come directly from the state 6 treasury, Fay, 802 F.2d at 27. 7 rejected the argument that, because some money in the 8 reserve fund may have been derived from state 9 appropriations, a judgment against [a BOCES] is, in effect, There is no evidence that New York State would Moreover, Woods explicitly 10 a judgment against the state. 11 district court s analysis of the sixth factor was correct. 12 466 F.3d at 249. The Because the six factors point in different directions, 13 we must ask whether a suit against the entity in federal 14 court would threaten the integrity of the state and expose 15 its treasury to risk. 16 Mancuso, 86 F.3d at 293). 17 McGinty, 251 F.3d at 96 (citing Both of these factors militate against immunity. 18 Sullivan County BOCES is a locally run entity affiliated 19 with local school districts; its liability would not reflect 20 adversely on New York State. 21 And a judgment in this case would not be paid directly 22 from the New York State treasury. 23 financial harm to New York State by way of increased 8 There is some risk of 1 spending for BOCES services and a reduction in the benefit 2 or value the State gets from its investment. 3 districts also receive significant state aid and the same 4 arguments apply to them. 5 entitled to immunity. 6 But school Yet we have held they are not Sullivan County BOCES argues that it should enjoy 7 immunity because the legislature has promulgated specific 8 laws governing BOCES and because New York State treats BOCES 9 differently than school districts. This argument does not 10 discharge Appellant s burden of showing that it is entitled 11 to Eleventh Amendment immunity. 12 For these reasons, the judgment of the district court 13 denying Appellant s motion for summary judgment on the 14 ground of Eleventh Amendment immunity is affirmed. 9
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