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Date: 02-02-2018

Case Style:

Colleen M. Bradley v. West Chester University of The Pennsylvania State Sytem of Higher Education

Eastern District of Pennsylvania Federal Courthouse - Philadelphia, Pennsylvania

Case Number: 17-1588

Judge: Brann

Court: United States Court of Appeals for the Third Circuit on appeal from the Eastern District of Pennsylvania (Philadelphia County)

Plaintiff's Attorney: Dan Kearney and Ed Mazurek

Defendant's Attorney: Josh Shapiro

Description: 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
4
Amendment immunity, and therefore uphold its dismissal of
the claims against West Chester 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
1 Because we are reviewing the District Court’s grant of
summary judgment in favor of Mr. Mixner, the
following facts are either undisputed or viewed in the
light most favorable to Ms. Bradley, and we have
drawn all reasonable inferences from those facts in her
favor. Dougherty v. Sch. Dist. of Phila., 772 F.3d 979,
986 (3d Cir. 2014).
2 App. 469.
5
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
3 PASSHE comprises fourteen universities:
Bloomsburg, California, Cheyney, Clarion, East
Stroudsburg, Edinboro, Indiana, Kutztown, Lock
Haven, Mansfield, Millersville, Shippensburg,
Slippery Rock, and West Chester. 24 P.S. § 20-2002-
A(a).
4 App. 73, 469-70.
5 App. 468.
6 App. 469.
6
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 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
7 Id.
8 App. 470.
9 App. 469.
10 App. 169.
7
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.
11 Id.
12 App. 475.
13 App. 476, 755. In Ms. Bradley’s opinion, her preferred
budget reflected “reality,” while Mr. Mixner’s
“showed the sky is falling.” App. 475.
8
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 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
14 App. 476.
15 App. 477.
16 App. 478.
17 App. 384.
9
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 distress.
The District Court dismissed Count I of this complaint
pursuant to Federal Rule of Civil Procedure 12(b)(1) on
December 9, 2015, holding that WCU and PASSHE, as well as
the administrators in their official capacities, were entitled to
Eleventh Amendment immunity under this Court’s decision in
Skehan v. State System of Higher Education,18 and that,
therefore, the court lacked jurisdiction to hear claims against
those parties. It granted Ms. Bradley leave to amend her
complaint, however, to name the administrators in their
individual capacities. Ms. Bradley did so in an amended
complaint filed January 15, 2016.
On April 19, 2016, the District Court dismissed Counts
I, III, and IV of Ms. Bradley’s Amended Complaint as to all
defendants except Mr. Mixner in his individual capacity. It
dismissed Count II without prejudice, in order to allow Ms.
Bradley to refile that claim in state court.
On March 3, 2017, the District Court granted summary
judgment in favor of Mr. Mixner on Count I.19 Although it
held that, under this Court’s precedent, Ms. Bradley’s speech
was protected by the First Amendment, it also held that Mr.
Mixner was entitled to qualified immunity for terminating Ms.
Bradley because his conduct did not violate a clearly
18 815 F.2d 244 (3d Cir. 1987).
19 Ms. Bradley withdrew the claims in Counts III and IV
on November 21, 2016.
10
established federal right.
Ms. Bradley filed a notice of appeal on March 16, 2017.
In this Court, she challenges the District Court’s December 9,
2015 order dismissing WCU and PASSHE on the grounds of
Eleventh Amendment immunity, and the District Court’s
March 3, 2017 order granting summary judgment in favor of
Mr. Mixner.
II.
A.
The District Court had jurisdiction under 28 U.S.C. §§
1331, 1343, and 1367. We have jurisdiction under 28 U.S.C.
§ 1291.
B.
Summary judgment may be granted when “the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”20 A
dispute is “genuine if a reasonable trier-of-fact could find in
favor of the non-movant,” and “material if it could affect the
outcome of the case.”21 To defeat a motion for summary
judgment, then, the nonmoving party must point to evidence in
the record that would allow a jury to rule in that party’s favor.22
20 Federal Rule of Civil Procedure 56(a).
21 Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d
294, 300 (3d Cir. 2012) (citing Anderson v. Liberty
Lobby, 477 U.S. 242, 248, 252 (1986)).
22 Federal Rule of Civil Procedure 56(c)(1); Liberty
Lobby, 477 U.S. at 249.
11
When deciding whether to grant summary judgment, a court
should draw all reasonable inferences in favor of the nonmoving
party.23
We review a District Court’s grant of summary
judgment de novo.24 We likewise review the District Court’s
holding on Eleventh Amendment sovereign immunity de
novo.25
C.
We first consider whether the District Court properly
granted summary judgment in favor of Mr. Mixner on Ms.
Bradley’s First Amendment retaliation claim.
Although “public employees do not surrender all their
First Amendment rights by reason of their employment,”26 the
United States Supreme Court has noted the need to strike a
“careful balance ‘between the interests of the [employee], as a
citizen, in commenting upon matters of public concern[,] and
the interest of the State, as an employer, in promoting the
efficiency of the public services it performs through its
23 Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
24 Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir. 2009).
25 Maliandi v. Montclair State Univ., 845 F.3d 77, 82 (3d
Cir. 2016).
26 Garcetti v. Ceballos, 547 U.S. 410, 417 (2006); see
also Rankin v. McPherson, 483 U.S. 378, 383 (1987)
(“[A] State may not discharge an employee on a basis
that infringes that employee’s constitutionally
protected interest in freedom of speech.”).
12
employees.’”27 Thus, when considering a First Amendment
retaliation claim, we first inquire whether the speech at issue
is, in fact, constitutionally protected, and then consider whether
the government had an “‘adequate justification’ for treating the
employee differently than the general public based on its needs
as an employer.”28 The District Court held that Ms. Bradley’s
speech was constitutionally protected, but nevertheless granted
summary judgment in favor of Mr. Mixner on qualified
immunity grounds. We disagree with the District Court’s
conclusion as to the protected status of Ms. Bradley’s speech,
but—because we may affirm on any ground supported by the
record29—uphold its judgment in favor of Mr. Mixner.
1.
Speech by government employees is constitutionally
protected when the employee is speaking “as a citizen, not as
an employee,” and when the speech “involve[s] a matter of
public concern.”30 If these two prerequisites are not met, a
public employee “has no First Amendment cause of action
based on his or her employer’s reaction to the speech.”31
27 Lane v. Franks, 134 S. Ct. 2369, 2374 (2014) (first
alteration in original) (quoting Pickering v. Bd. of Ed.,
391 U.S. 563, 568 (1968)).
28 Dougherty v. Sch. Dist. of Philadelphia, 772 F.3d 979,
987 (3d Cir. 2014) (quoting Gorum, 561 F.3d at 185).
29 Gorum, 561 F.3d at 184.
30 Dougherty, 772 F.3d at 987. Here, the parties do not
dispute that Ms. Bradley’s speech involved a matter of
public concern.
31 Garcetti, 547 U.S. at 418.
13
In Garcetti v. Ceballos, the United States Supreme
Court held that “when public employees make statements
pursuant to their official duties, the employees are not speaking
as citizens for First Amendment purposes,” and that, therefore,
“the Constitution does not insulate their communications from
employer discipline.”32 In that case, a deputy district attorney
alleged that he was unconstitutionally retaliated against after
composing an internal memorandum that discussed perceived
“serious misrepresentations” in a search warrant affidavit.33
The Supreme Court noted that the attorney “expressed his
views inside his office, rather than publicly,” and that the
“memo concerned the subject matter of [his] employment,” but
noted that these factors were not dispositive.34 The
“controlling factor,” instead, was that the memo was written
“pursuant to [the attorney’s] duties as a calendar deputy”—i.e.,
he wrote it “because that is part of what he, as a calendar
deputy, was employed to do.”35
32 Id. at 421; see also id. at 421-22 (“Restricting speech
that owes its existence to a public employee’s
professional responsibilities does not infringe any
liberties the employee might have enjoyed as a private
citizen. It simply reflects the exercise of employer
control over what the employer itself has
commissioned or created.”).
33 Id. at 413-15.
34 Id. at 420-21.
35 Id. at 421; see also Lane v. Franks, 134 S. Ct. 2369,
2378 (2014) (characterizing the memorandum at issue
in Garcetti as “prepared . . . in the course of [the
plaintiff’s] ordinary job responsibilities”).
14
Because the parties in Garcetti did not dispute that the
attorney’s memo was written pursuant to his official duties, the
Supreme Court admitted that it “ha[d] no occasion to articulate
a comprehensive framework for defining the scope of an
employee’s duties in cases where there is room for serious
debate,” and noted that “[t]he proper inquiry is a practical
one.”36 This Court has fleshed out that framework in a series
of decisions. In Foraker v. Chaffinch, for example, we held
that state troopers were speaking pursuant to their official
duties when they expressed concerns about deficiencies at a
firing range up their chain of command and with the State
Auditor, since monitoring the range was “among the tasks
[they] were paid to perform.”37 In Gorum v. Sessoms, we held
that a tenured university professor was speaking pursuant to his
official duties when he served as a student’s advisor at a
disciplinary hearing and when he withdrew the university
president’s invitation to speak at a fraternity prayer breakfast,
since “[i]t was through his position as a professor and
department chair” that he was able to counsel the student, and
since the professor chaired the fraternity’s speakers
committee.38 And in De Ritis v. McGarrigle, we held that a
public defender was speaking pursuant to his official duties
when he made in-court comments to the effect that his transfer
to a different office unit was “punish[ment] for taking too many
cases to trial,” since he had “in-court obligations to build
rapport with the Court,” which could be accomplished through
such off-the record “idle chatter,” and since “the mode and
36 Garcetti, 547 U.S. at 424.
37 Foraker v. Chaffinch, 501 F.3d 231, 233-34, 241-43
(3d Cir. 2007), abrogated on other grounds by
Borough of Duryea v. Guarnieri, 564 U.S. 379 (2011).
38 Gorum v. Sessoms, 561 F.3d 179, 186 (3d Cir. 2009).
15
manner of his speech were possible only as an ordinary
corollary to his position as a government employee.”39
On the other hand, in Dougherty v. School District of
Philadelphia, we held that a school district employee was not
speaking pursuant to his official duties—and was instead
speaking as a citizen—when he disclosed alleged misconduct
by the school superintendent to a local newspaper.40 And in
Flora v. County of Luzerne, we held that a public defender
sufficiently alleged that he was speaking as a citizen when he
initiated a class action lawsuit on behalf of indigent criminal
defendants and reported his county’s noncompliance with a
Pennsylvania Supreme Court order to the Special Master
whose report had given rise to that order.41
2.
Here, Ms. Bradley claims that she was speaking as a
citizen when she raised her budget concerns at the EMC
meeting on October 29, 2014.42 Unfortunately for her cause,
39 De Ritis v. McGarrigle, 861 F.3d 444, 449, 453-54 (3d
Cir. 2017) (quoting affidavit and complaint).
40 Dougherty v. Sch. Dist. of Philadelphia, 772 F.3d 979,
983, 988 (3d Cir. 2014).
41 Flora v. Cty. of Luzerne, 776 F.3d 169, 173, 179-80 (3d
Cir. 2015).
42 In the District Court, Ms. Bradley also argued that she
was speaking as a citizen during the ABC meetings of
September 20 and 27, 2012. At oral argument before
this Court, however, Ms. Bradley’s counsel abandoned
that argument. Oral Argument at 1:56-2:40, Bradley v.
W. Chester Univ., No. 17-1588 (3d Cir. Nov. 8, 2017),
16
this case falls squarely within the framework of Garcetti,
Foraker, Gorum, and De Ritis—i.e., her speech at that meeting
was made pursuant to her official duties, and was therefore not
protected by the First Amendment. Ms. Bradley’s job
description indicated that she was expected to “[r]eview and
recommend, as requested, changes to the University[’]s budget
allocation processes,”43 and she agreed that her position, in
practice, included those responsibilities.44 She attended the
EMC meeting at the behest of Mr. Mixner, her direct
supervisor, and the record contains no indication that the
meeting was open to the public. She recommended her
alternate budget—the one she felt “presents reality”—directly
in response to a question from one of the EMC’s members. In
other words, she spoke “because that is part of what [s]he . . .
was employed to do,”45 in a “mode and manner [that] were
possible only as an ordinary corollary to h[er] position.”46
http://www2.ca3.uscourts.gov/oralargument/audio/17-
1588Bradleyv.WestChesterUniv.mp3.
43 App. 78.
44 Formal job descriptions may factor into the analysis of
a plaintiff’s official duties, but because they “often bear
little resemblance to the duties an employee actually is
expected to perform . . . the listing of a given task in an
employee’s written job description is neither necessary
nor sufficient to demonstrate that conducting the task
is within the scope of the employee’s professional
duties for First Amendment purposes.” Garcetti v.
Ceballos, 547 U.S. 410, 424-25 (2006).
45 Id. at 421.
46 De Ritis, 861 F.3d at 454.
17
To support her argument that she was speaking as a
citizen, Ms. Bradley points to the fact that Mr. Mixner, in his
deposition, indicated that it was not part of Ms. Bradley’s
“ordinary duties” to either “investigate misrepresentations of
financial information” or to “report willful misrepresentations
of financial information.”47 The District Court may have had
this testimony in mind when it noted that “[t]here is a
difference between recommending changes to improve or
streamline an existing policy and upending the policy with
accusations that it is in itself fraudulent.”48 The undisputed
facts, however, show that Ms. Bradley was paid to critically
evaluate WCU’s budgeting process—i.e., scrutinizing and
analyzing the numbers appearing in the budget was part of her
job. That is what she was doing at the EMC meeting on
October 29, 2014, and that is why we hold that she was
speaking pursuant to her official duties as a public employee at
that meeting, and not as a citizen.
Ms. Bradley also points to portions of Mr. Mixner’s
deposition testimony where he indicated that it was not part of
Ms. Bradley’s “ordinary duties” to “report to senior leaders of
[WCU] outside her chain of command.”49 Some courts have
predicted that bypassing a government bureaucracy’s normal
pecking order would be outside a public employee’s ordinary
47 App. 519.
48 App. 776.
49 App. 519.
18
job responsibilities.50 This Court, however, has not done so,51
and need not do so in this case. The undisputed evidence
shows that Ms. Bradley was not speaking “outside her chain of
command” when she was reporting to the EMC on October 29,
2014; rather, she was responding, in her official capacity, to a
direct question by a member of that committee.
3.
We have repeatedly noted that “[s]peech involving
government impropriety occupies the highest rung of First
Amendment protection,”52 and we take seriously Ms.
Bradley’s concerns about WCU’s budgeting practices.
Nevertheless, we are mindful of the Supreme Court’s
admonition that “while the First Amendment invests public
50 See, e.g., Dahlia v. Rodriguez, 735 F.3d 1060, 1074
(9th Cir. 2013) (“When a public employee
communicates with individuals or entities outside of
his chain of command, it is unlikely that he is speaking
pursuant to his duties.”).
51 Cf. Foraker v. Chaffinch, 501 F.3d 231, 240-41, 243
(3d Cir. 2007) (holding that plaintiffs “were acting
within their job duties when they expressed their
concerns up the chain of command” and to the State
Auditor).
52 McGreevy v. Stroup, 413 F.3d 359, 365 (3d Cir. 2005)
(citing Swineford v. Snyder Cty., 15 F.3d 1258, 1274
(3d Cir. 1994)); see also Lane v. Franks, 134 S. Ct.
2369, 2380 (2014) (“corruption in a public program
and misuse of state funds . . . obviously involves a
matter of significant public concern”).
19
employees with certain rights, it does not empower them to
constitutionalize the employee grievance.”53 Because Ms.
Bradley’s speech was made as a government employee and not
a citizen, she has failed to state a First Amendment claim.54
Therefore, we uphold the District Court’s grant of summary
judgment in favor of Mr. Mixner on Count I of her Amended
Complaint.
D.
We turn next to the District Court’s determination that
PASSHE and WCU are entitled to Eleventh Amendment
immunity.
In order to protect States’ “solvency and dignity,”55 the
Eleventh Amendment to the United States Constitution has
been interpreted by the Supreme Court to shield States and
certain State-affiliated entities from suits for damages in
federal court.56 Because of the “sweeping immunity from suit”
this Amendment provides, and in order to “ensure that [the
53 Garcetti v. Ceballos, 547 U.S. 410, 420 (2006)
(internal quotation marks and citation omitted).
54 Because we conclude that there was no First
Amendment violation, we need not reach the qualified
immunity issue. Pearson v. Callahan, 555 U.S. 223,
232, 236 (2009).
55 Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30,
53 (1994).
56 See, e.g., Hans v. Louisiana, 134 U.S. 1 (1890);
Seminole Tribe of Florida v. Florida, 517 U.S. 44
(1996); Maliandi v. Montclair State Univ., 845 F.3d 77,
83 (3d Cir. 2016).
20
Amendment’s] reach does not extend beyond proper bounds,”
this Court has developed a “fact-intensive, three-step balancing
test to ascertain whether a [S]tate-affiliated entity is an ‘arm of
the State’ that falls within the ambit of [that] Amendment.”57
Here, the District Court, relying on our 1987 decision in
Skehan v. State System of Higher Education (“Skehan II”),58
held that PASSHE and WCU were entitled to Eleventh
Amendment immunity and dismissed Ms. Bradley’s § 1983
claim against those defendants. In this Court, Ms. Bradley
points to our 2008 decision in Cooper v. Southeastern
Pennsylvania Transportation Authority,59 where we noted that
“the Supreme Court has refined its Eleventh Amendment
jurisprudence” since the early 1990s, and that we therefore
“have modified our own jurisprudence to reflect direction”
from that Court.60 Correspondingly, she invites us to perform
a “fresh analysis” of PASSHE and WCU’s status under the
Eleventh Amendment.61
We accept Ms. Bradley’s invitation,62 but come to the
same conclusion we reached 30 years ago in Skehan II. Under
our current jurisprudence, and under the current legal and
57 Maliandi, 845 F.3d at 83.
58 815 F.2d 244 (3d Cir. 1987).
59 548 F.3d 296 (3d Cir. 2008).
60 Id. at 299.
61 Appellant’s Brief at 27 (citing Maliandi, 845 F.3d at
84).
62 See Karns v. Shanahan, Nos. 16-2171, 16-2172, slip
op. at 11-14 (3d Cir. Jan. 11, 2018) (reexamining the
Fitchik factors as applied to the New Jersey Transit
Corporation).
21
practical realities of those institutions, both PASSHE and
WCU are entitled to Eleventh Amendment immunity and are
thus not subject to suits for damages in federal court. We
therefore uphold the District Court’s dismissal of the § 1983
claim against those institutions.
1.
As noted supra, this Court considers three factors when
determining if a State-affiliated entity is an “arm of the State”
entitled to Eleventh Amendment immunity.63 Known as the
“Fitchik factors,”64 they are: (1) whether the money that would
pay any judgment would come from the state; (2) the status of
the agency under state law; and (3) the degree of autonomy
possessed by the agency.65 At one point, our jurisprudence
gave the first factor—the “funding factor”—more “weight”
than the other factors.66 In light of the Supreme Court’s
decision in Regents of the University of California v. Doe,67
however, we “recalibrated” the factors’ weight, and “now treat
63 Maliandi, 845 F.3d at 83.
64 See Fitchik v. N.J. Rail Operations, Inc., 873 F.2d 655
(3d Cir. 1989) (en banc) (consolidating the earlier,
nine-factor test of Urbano v. Bd. of Managers, 415 F.2d
247 (3d Cir. 1969)).
65 Cooper, 548 F.3d at 299 n.4.
66 Maliandi, 845 F.3d at 84.
67 519 U.S. 425, 431 (1997) (noting that an Eleventh
Amendment analysis should not be “convert[ed] . . .
into a formalistic question of ultimate financial
liability”).
22
all three Fitchik factors as co-equals, with the funding factor
breaking the tie in a close case.”68
The defendants concede that the funding factor weighs
in Ms. Bradley’s favor since Pennsylvania law shields the
Commonwealth’s treasury from PASSHE and WCU’s
liabilities69 and since both institutions have revenue sources
other than state appropriations from which to satisfy adverse
judgments. Additionally, Ms. Bradley notes—and the
defendants agree—that both PASSHE and WCU receive a far
smaller amount of their budget from the Commonwealth than
they did at the time Skehan II was decided. Although she
argues that that fact strengthens the force with which the
funding factor weighs in her favor, our “recalibration” of the
balance among the Fitchik factors perhaps negates the effect of
that budgetary change. Be that as it may, this factor weighs
68 Maliandi, 845 F.3d at 84 (citing Benn v. First Judicial
Dist. of Pa., 426 F.3d 233, 239-40 (3d Cir. 2005)); see
also Karns v. Shanahan, Nos. 16-2171, 16-2172, slip
op. at 11 (3d Cir. Jan. 11, 2018) (“[E]ach case must be
considered on its own terms, with courts determining
and then weighing the qualitative strength of each
individual [Fitchik] factor in the unique factual
circumstances at issue.”).
69 See 24 P.S. § 20-2003-A(b)(3) (“[T]he system shall
have no power at any time or in any manner, to pledge
the credit or taxing power of the Commonwealth, nor
shall any of its obligations or debts be deemed to be
obligations of the Commonwealth, nor shall the
Commonwealth be liable for the payment of principal
or interest on such obligations.”).
23
decidedly against granting Eleventh Amendment immunity to
PASSHE and its universities.
2.
The second Fitchik factor—status under state law—
“requires that we focus on whether the State itself considers the
entity [under consideration] an arm of the [S]tate.”70 Under
this factor, we consider “how state law treats the agency
generally” by looking to “(1) explicit statutory indications
about how an entity should be regarded; (2) case law from the
state courts—especially the state supreme court—regarding an
entity’s immunity or status as an arm of the State; and (3)
whether the entity is subject to laws for which the State itself
has waived its own immunity (such as state tort claims acts).”71
We also consider “whether the entity is separately
incorporated, whether the agency can sue or be sued in its own
right, . . . whether it is immune from state taxation[,]” whether
it can “exercise the power of eminent domain,” whether it is
subject to “state administrative procedure and civil service
laws,” whether it can “enter contracts and make purchases on
its own behalf, and whether the entity owns real estate.”72
Although we have acknowledged that our analysis of this
factor is “multifaceted” and can become “hopelessly
checkered,”73 we believe that Pennsylvania law consistently
treats PASSHE and its universities as arms of the state, and that
70 Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d
524, 548 (3d Cir. 2007).
71 Maliandi, 845 F.3d at 91.
72 Id.
73 Id.
24
this factor, therefore, weighs in favor of granting Eleventh
Amendment immunity to those institutions.
Act 188,74 which created PASSHE in 1982, indicates
that PASSHE is “part of the Commonwealth’s system of higher
education,” 75 even though the act made PASSHE independent
of the Pennsylvania Department of Education.76 Act 188 also
indicates that Commonwealth appropriations to PASSHE and
its universities are “ordinary expenses of government,
requiring only a majority vote of each House of the General
Assembly”;77 under the Pennsylvania Constitution, on the
other hand, appropriations to schools “not under the absolute
control of the Commonwealth” require a “vote of two-thirds of
all the members elected to each House.”78
Pennsylvania courts have determined that PASSHE and
its universities are “Commonwealth agencies,” and therefore
part of the “Commonwealth government,” for purposes of the
Pennsylvania Judicial Code79 and Administrative Agency
74 24 P.S. § 20-2001-A et seq.
75 24 P.S. § 20-2003-A(a) (emphasis added).
76 24 P.S. § 20-2002-A(a).
77 24 P.S. § 20-2002-A(b).
78 Pa. Const. art. III § 30 (emphasis added).
79 See, e.g., E. Stroudsburg Univ. v. Hubbard, 591 A.2d
1181, 1184 (Pa. Commw. Ct. 1991). This
determination gives the Pennsylvania Commonwealth
Court—as opposed to a Court of Common Pleas—
original jurisdiction over civil actions filed against
PASSHE and its universities. Id.; see also 42 Pa. Cons.
Stat. §§ 102, 761(a).
25
Law.80 Municipalities and local government agencies—on
which the Supreme Court has “consistently refused” to confer
Eleventh Amendment immunity81—are, on the other hand, not
considered part of the “Commonwealth government” under
either statutory scheme.82
Pennsylvania courts have also found that PASSHE and
its universities are “Commonwealth parties” under the
Pennsylvania Sovereign Immunity Act,83 which entitles them
to share the Commonwealth’s sovereign immunity except
80 See, e.g., Fisler v. State Sys. of Higher Educ., 78 A.3d
30 (Pa. Commw. Ct. 2013). The Administrative
Agency Law specifically exempts “[p]roceedings
before [PASSHE] involving student discipline” from
its coverage. 2 Pa. Cons. Stat. § 501(b)(4).
81 Lake Country Estate, Inc. v. Tahoe Reg’l Planning
Agency, 440 U.S. 391, 401 (1979).
82 42 Pa. Cons. Stat. §102 (excluding “any political
subdivision, municipal or other local authority, or any
officer or agency of any such political subdivision or
local authority” from the definition of “Commonwealth
government” in the Judicial Code); 2 Pa. Cons. Stat. §
101 (same, for purposes of the Administrative Agency
Law).
83 42 Pa. Cons. Stat. §§ 8521-28; see, e.g., Armenti v.
Pennsylvania State Sys. of Higher Educ., 100 A.3d
772, 777 (Pa. Commw. Ct. 2014); Poliskiewicz v. E.
Stroudsburg Univ., 536 A.2d 472, 474 (Pa. Commw.
Ct. 1988).
26
where waived for certain claims in state courts.84
Municipalities and local government agencies do not share that
sovereign immunity; instead, they have limited “governmental
immunity” under the Pennsylvania Subdivision Tort Claims
Act.85
PASSHE and its universities are also subject to state
administrative procedure laws. Under the Pennsylvania
Commonwealth Documents Law, for example, their proposed
regulations must go through a notice and comment process.86
Under the Regulatory Review Act, those regulations must be
submitted, along with a thorough analysis, to the Independent
Regulatory Review Commission.87 And under the
84 42 Pa. Cons. Stat. § 8522; see also 42 Pa. Cons. Stat. §
8528(a) (limiting damages which may be recovered
from “Commonwealth parties” in claims where those
parties’ sovereign immunity has been waived).
85 42 Pa. Cons. Stat. § 8541-64; see Bowers v. Nat’l
Collegiate Athletic Ass’n, 475 F.3d 524, 548 (3d Cir.
2007) (noting that a similar distinction between the
immunity granted to University of Iowa and the
immunity granted to political subdivisions in Iowa
weighed in favor of finding that the university was
considered an arm of the State); cf. Maliandi v.
Montclair State Univ., 845 F.3d 77, 93 (3d Cir. 2016)
(noting that Montclair State University was covered by
the same Tort Claims Act as New Jersey municipalities
and counties, “undercutting the inference that entities
subject to this Act are otherwise immune from suit”).
86 45 P.S. §§ 1201-02.
87 71 P.S. § 745.5.
27
Commonwealth Attorneys Act, the regulations must be
submitted to both the state Attorney General and the
Governor’s General Counsel, where they are reviewed “for
form and legality.”88
PASSHE is separately incorporated,89 which weighs
against a finding that it is an arm of the State. There is also no
apparent indication that PASSHE or its universities can
exercise the power of eminent domain or that they are subject
to civil service laws. Other considerations cut both ways: It
appears, for example, that PASSHE and its universities can sue
and be sued in their own right, although they may be
represented in litigation by either the Pennsylvania Attorney
General (as was done in this case) or by the Governor’s
General Counsel.90 It also appears that real property owned by
PASSHE and its universities is generally immune from state
taxation,91 although it may be subject to local taxation when it
88 71 P.S. §§ 732-204(b), 732-301(10).
89 24 P.S. § 20-2003-A(b)(1) (granting PASSHE the
“right and power[ t]o have perpetual existence as a
corporation”).
90 71 P.S. § 732-204(c); cf. Bowers, 475 F.3d at 548
(noting, before finding that the University of Iowa is
considered an arm of the State of Iowa, that “although
the University may bring suit in its own name, it may
do so only through the State Attorney General’s Office,
which also is obligated to defend the University from
suit”).
91 Cf. Pa. State Univ. v. Derry Twp. Sch. Dist., 731 A.2d
1272, 1275 (Pa. 1999) (suggesting that PASSHE
28
is not used consistently with its governmental purpose.92 And
although PASSHE and its universities have the power to enter
into contracts and make purchases on their own behalf, and can
acquire and own their own real estate, those powers are
constrained in several ways, which are discussed infra.
The balance of considerations under this “status under
state law” factor weighs in favor of finding that Pennsylvania
treats PASSHE and its universities as arms of the state.
Statutory and case law consistently treats these institutions as
it treats the state government itself, and contrary considerations
(e.g., separate incorporation, ability to sue in their own name)
arguably deal more with form than with function. This factor,
then, weighs strongly in favor of Eleventh Amendment
immunity.
universities’ real property is exempt from real estate
taxes).
92 See, e.g., Ind. Univ. of Pa. v. Ind. Cty. Bd. of
Assessment Appeals, 2015 WL 5671153, at *1, *8 (Pa.
Commw. Ct. 2015) (unpublished decision) (affirming
order overruling PASSHE university’s appeal of
determination that a portion of its real property, which
it had leased “for a private or commercial purpose,”
was taxable); Pa. State Sys. of Higher Educ. v. Ind.
Area Sch. Dist., 2012 WL 8667893, at *1, *6-8 (Pa.
Commw. Ct. 2012) (unpublished decision)
(presumption of immunity from taxation was overcome
to the extent that PASSHE university leased property
for rental income rather than using it for educational
purposes).
29
3.
The third Fitchik factor—the autonomy factor—focuses
on “the entity’s governing structure and the oversight and
control exerted by a State’s governor and legislature.”93 Our
analysis of this factor leads us to conclude, as we did in Skehan
II, that PASSHE and its universities are “not autonomous but
subject to substantial state supervision and control,”94 and that,
therefore, this factor weighs in favor of Eleventh Amendment
immunity.
a.
The governing structure of PASSHE and its universities
places significant constraints on those institutions’ autonomy.
PASSHE is governed by, and its powers are exercised through,
a Board of Governors (“BOG”).95 The BOG consists of twenty
members: the Governor, the State Secretary of Education, four
members of the General Assembly, and fourteen members
appointed by the Governor with the advice and consent of the
State Senate.96 Of these Governor-appointed members, three
must be PASSHE university students. The Governor and
Secretary of Education serve on the BOG as long as they
remain in office; the General Assembly members’ terms
coincide with their elective terms; the student members serve
until graduation; and the other appointed members serve four-
93 Maliandi v. Montclair State Univ., 845 F.3d 77, 96 (3d
Cir. 2016).
94 Skehan v. State Sys. of Higher Educ., 815 F.2d 244, 248
(3d Cir. 1987).
95 24 P.S. § 20-2004-A(a).
96 Id.
30
year terms.97 The BOG employs, as “chief executive officer”
of PASSHE, a Chancellor who serves “at the [BOG]’s
pleasure.”98
PASSHE universities themselves are each headed by a
separate Council of Trustees (“COT”).99 Each COT consists
of eleven members, one of whom must be a full-time
undergraduate student.100 Each COT member is appointed by
the Governor, and all except for the student member require
State Senate confirmation.101 The student member serves for a
maximum of four years; the other members serve six-year
terms.102 The BOG appoints, as “chief executive officer” of
each PASSHE university, a president who, like the Chancellor,
serves “at the [BOG]’s pleasure.”103
In Bowers v. National Collegiate Athletic Ass’n, we
held that the University of Iowa was entitled to Eleventh
Amendment immunity after noting that all members of its
Board of Regents were appointed by the Governor.104 We
came to the same conclusion in Maliandi v. Montclair State
University after similarly noting that all members of
97 Id.
98 24 P.S. §§ 20-2005-A, 20-2006-A(a)(1).
99 24 P.S. § 20-2008-A.
100 24 P.S. § 20-2008-A(b).
101 24 P.S. § 20-2008-A(a),(b).
102 24 P.S. § 20-2008-A(b).
103 24 P.S. §§ 20-2006-A(a), 20-2010-A.
104 Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d
524, 548-49 (3d Cir. 2007).
31
Montclair’s Board of Trustees were Governor-appointed.105
We came to the opposite conclusion in Kovats v. Rutgers,
denying Eleventh Amendment immunity to Rutgers after
noting that only a “bare minimum” of its Board of Governors,
and less than half of its Board of Trustees, were Governorappointed.
106
Here, all members of the BOG and the COTs are
Governor-appointed. It is true that, in Bowers and Maliandi,
we noted that Board members were removable by their
respective Governors “for cause,”107 and that there is no similar
provision in Act 188 vis-à-vis members of PASSHE’s BOG or
its universities’ COTs. It appears, however, that such members
may be removed by the Governor at will,108 reducing those
105 Maliandi v. Montclair State Univ., 845 F.3d 77, 98 (3d
Cir. 2016).
106 Kovats v. Rutgers, 822 F.2d 1303, 1311-12 (3d Cir.
1987).
107 Bowers, 475 F.3d at 549; Maliandi, 845 F.3d at 97-98.
108 See Pa. Const. art. VI § 7 (“Appointed civil officers,
other than judges of the courts of record, may be
removed at the pleasure of the power by which they
shall have been appointed.”); Naef v. City of Allentown,
227 A.2d 888, 889 (Pa. 1967) (“In a multitude of
decisions, this Court has ruled that, under the above
constitutional provision, appointed public officers are
removable from office at the pleasure of the appointive
power even though the appointments were made for a
statutorily fixed term.”). The General Assembly may
limit this constitutional removal power expressly, and
the Pennsylvania Supreme Court has inferred limits on
32
bodies’ autonomy further than if they were removable only for
cause.
b.
There are also statutory barriers around PASSHE and
its universities’ autonomy. Both the BOG and COT have
numerous powers and duties under Act 188, but many of them
are limited.109 For example, as mentioned supra, although
PASSHE may acquire real property, it must obtain the General
Assembly’s approval before disposing of that real property.110
It may enter into collective bargaining agreements with its
employees, but must “make a coalition bargaining arrangement
with the Commonwealth” when it negotiates with
noninstructional employees.111 It may enter into contracts for
construction, repair, renovation, and maintenance, but when
these contracts exceed a threshold amount ($18,500), it must
utilize competitive bidding.112
this power in several cases where officers are appointed
to staggered terms. See, e.g., Bowers v. Pa. Labor
Relations Bd., 167 A.2d 480, 485 (Pa. 1961); Watson
v. Pa. Tpk. Comm’n, 125 A.2d 354, 358 (Pa. 1956).
Act 188, however, does not create staggered terms for
members of the BOG or the COTs; we cannot,
therefore, infer a limit on the Governor’s power to
remove those members.
109 See 24 P.S. §§ 20-2006-A, 20-2010-A.
110 24 P.S. §§ 20-2003-A(b)(3), 20-2018-A.
111 24 P.S. § 20-2003-A(c).
112 24 P.S. § 20-2003-A.1.
33
Additionally, PASSHE and its universities are, like
Montclair, “subject to significant reporting requirements and
rules for internal governance.”113 For example, all activities of
these institutions are subject to audit by the Commonwealth’s
Auditor General, and PASSHE must submit annual reports to
the General Assembly.114 Each PASSHE university must
submit a thorough annual report to the Department of
Education and the Joint State Government Commission, which
report “shall include data for all programs of the institution.”115
And, as noted supra, PASSHE and its universities are subject
to a host of state administrative procedure laws.
Unlike in Kovats, where “state intervention . . . is
minimal,”116 there are many “indicia of state control”117 over
PASSHE and its universities, as there were in Bowers and
Maliandi. Combined with the significantly constrained
governing structure, these considerations lead us to conclude
that PASSHE and its universities maintain only limited
autonomy from the state. This factor, then, also weighs
strongly in favor of Eleventh Amendment immunity.
113 See Maliandi v. Montclair State Univ., 845 F.3d 77, 98
(3d Cir. 2016).
114 24 P.S. § 20-2015-A(a).
115 24 P.S. § 20-2017-A(a).
116 Kovats v. Rutgers, 822 F.2d 1303, 1311 (3d Cir. 1987);
see also id. at 1311-12 (noting that Rutgers is “not
subject to the operational constraints placed on most
other state agencies,” such as the need to “comply with
civil service, competitive bidding[,] or administrative
procedure requirements”).
117 Maliandi, 845 F.3d at 99.
34
4.
We have concluded that two of the three Fitchik factors
tip strongly towards PASSHE and its universities, including
WCU, while one factor weighs against them. After
“[w]eighing and balancing the qualitative strength of each
factor in the context of the circumstances presented,”118 we
hold that those institutions are entitled to Eleventh Amendment
immunity from Ms. Bradley’s claims in federal court. As we
noted in Maliandi, this conclusion may result in “limited and
unsatisfying avenues to obtain relief” for litigants like Ms.
Bradley.119 Nevertheless, “comity and state sovereignty are
constitutional precepts and lynchpins of our federalist system
of government,”120 and we must, therefore, uphold the District
Court’s dismissal of Ms. Bradley’s § 1983 claims against these
institutions.

Outcome: Because we find that Ms. Bradley was not speaking as
a citizen at the October 29, 2014 EMC meeting, she has no
First Amendment claim; therefore, we will affirm the District
Court’s grant of summary judgment in favor of Mr. Mixner.
And because we find that PASSHE and WCU are entitled to
Eleventh Amendment immunity, we will affirm the District
Court’s dismissal of Count I against those defendants.
118 Karns v. Shanahan, Nos. 16-2171, 16-2172, slip op. at
21 (3d Cir. Jan. 11, 2018).
119 Id.
120 Id.

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