16-553 Wolff v. State University of New York

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



### SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32. 1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CI TING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NO T REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Seco nd Circuit, held at 1 the Thurgood Marshall United States Courthou se, 40 Foley Square, in the City of New York, 2 on the 6 th day of February, two thousand seventeen. 3 4 PRESENT: 5 G UIDO C ALABRESI , 6 S USAN L. C ARNEY , 7 Circuit Judges
, 8 J OHN G. K OELTL , 9 District Judge

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_____________ _______________ _____________ 11 12 J EFFREY W OLFF , 13 14 Plaintiff-Appellant
, 15 16 v. No. 16-553 17 18 S TATE U NIVERSITY OF N EW Y ORK , C OLLEGE AT 19 C ORTLAND , M ICAL W ILLIAMS , K IMBERLY A. R OMBACH , 20 C YNTHIA B ENTON , S USAN W ILSON , A NDREA 21 L ACHANCE , E LIZABETH S. K LEIN , J UDITH S CHILLO , 22 M ARLEY S. B ARDUHN , M ARK P RUS , 23 24 Defendants-Appellees

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 Judge John G. Koeltl, of the United States District Court for the Southern District of New York, sitting by designation.

** The Clerk of Court is directed to amend the caption to conform to the above.2 _____________ _______________ _____________ 1 2 FOR PLAINTIFF-APPELLANT: J EFFREY W OLFF , pro se , Catskill, NY. 3 4 FOR DEFENDANTS-APPELLEES 5 STATE UNIVERSITY OF NEW YORK, 6 COLLEGE AT CORTLAND, KIMBERLY 7 A. ROMBACH, CYNTHIA BENTON, 8 SUSAN WILSON, ANDREA LACHANCE, 9 ELIZABETH S. KLEIN, JUDITH SCHILLO, 10 MARLEY S. BARDUHN, MARK PRUS: J ONATHAN B. F ELLOWS (Suzanne O. 11 Galbato, on the brief ), Bond, Schoeneck & 12 King, PLLC, Syracuse, NY. 13 14 FOR DEFENDANT-APPELLEE 15 MICAL WILLIAMS: L ESLIE P. G UY , Hinman, Howard & 16 Kattell, LLP, Binghamton, NY. 17 18 Appeal from a judgment of the United Stat es District Court for the Northern District 19 of New York (Sannes, J .). 20
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 21 ADJUDGED, AND DECREED that the February 5, 2016 ju dgment of the District Court 22
is AFFIRMED

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Appellant Jeffrey Wolff, proceeding pro se , sued the State University of New York, 24 College at Cortland (“SUNY Cortland”) and se veral of its employees under 42 U.S.C. § 1983 25 and Title IX. He appeals the District Court’s grant of summary judgment to the defendants26 appellees. We assume the parties’ familiarity with the underlying facts, the procedural history 27 of the case, and the issues on appeal, to which we refer only insofar as is necessary to explain 28
our decision to affirm. 29

We review de novo a district court’s grant of summa ry judgment, with the view that 30 summary judgment is appropriate only “if the m ovant shows that there is no genuine dispute 31 as to any material fact and the movant is entitled to judgment as a matter of law.” Sousa v. 32 Marquez , 702 F.3d 124, 127 (2d Cir. 2012) (internal quotation marks omitted). Wolff has 33 limited the issues on appeal to his claims of procedural and substantive due process 34 violations under § 1983 and hostile ed ucational environment under Title IX. See LoSacco v. 353 City of Middletown , 71 F.3d 88, 93 (2d Cir. 1995) (“[W]e need not manufacture claims of error 1 for an appellant proceeding pro se , especially when he has rais ed an issue below and elected 2 not to pursue it on appeal.”). 3
As an initial matter, the District Co urt properly granted summary judgment to 4 defendant-appellee Mical Williams. For a defendan t to be liable under § 1983, she must be a 5
state actor or must have acted in concert with a state actor. See Am. Mfrs. Mut. Ins. Co. v. 6
Sullivan , 526 U.S. 40, 49-50 (1999); Pangburn v. Culbertson , 200 F.3d 65, 72 (2d Cir. 1999). 7 Although Williams is a SUNY Cortland lecturer , she did not act in that capacity with regard 8 to Wolff, and Wolff offered no evidence either (1) of concerted action between Williams and 9 the SUNY defendants, or (2) that she used her position to influence the dismissal procedure. 10 Wolff did not raise his “cat’s paw” theory—t hat Williams manipulated the SUNY defendants 11 into dismissing him—in the Di strict Court; it thus is not properly before us on appeal. See 12 Virgilio v. City of New York , 407 F.3d 105, 116 (2d Cir. 20 05). Even were it properly 13 presented, however, it would fail on the merits because, as discussed below, Wolff offered 14
no evidence that Williams’s actions caused his dismissal. 15
The District Court properly granted su mmary judgment to the other individual 16 SUNY defendants on Wolff’s substantive and pr ocedural due process claims. To establish a 17 substantive due process claim based on an academ ic decision, a plaintiff must show such “a 18 substantial departure from accepted academic norms as to demonstrate that the person or 19 committee responsible did not actually exercise professional judgment.” Regents of Univ. of 20 Mich. v. Ewing , 474 U.S. 214, 225 (1985). For academic decisions, “educational institutions 21 have the right to receive summary judgment un less there is evidence . . . that there was no 22
rational basis for the decision or that it was motivated by bad faith or ill will unrelated to 23 academic performance.” Clements v. Nassau Cty. , 835 F.2d 1000, 1004 (2d Cir. 1987). Wolff 24 points to two emails as evidence of the institut ion’s purported bad fait h or ill will and argues 25 that, in granting summary judgment for defend ants, the District Court failed to view the 26 emails in the light most favorable to him. But, as the District Court found, the emails did not 27 evidence bad faith or ill will; rather, they ex pressed substantial concerns about Wolff’s 28 professionalism. One email related to the studen t teaching contract and, although the writer 294 expressed a hope that Wolff’s behavior would cause him to be removed from the program 1 before his student teaching began, the email refl ected an intention to en ter into the contract 2 with Wolff despite concerns about his perfor mance. Another email referred to a previous 3 message discussing the start of an academic dishonesty investigation into Wolff, and 4 reflected an administrator’s opi nion that the removal process s hould begin. These emails do 5 not raise a genuine issue of fact as to the natu re of the SUNY defendants’ intentions; fairly 6 read, they reflect no more than appropriate professional and academic concerns. See Anderson 7 v. Liberty Lobby, Inc. , 477 U.S. 242, 252 (1986) (“ The mere existence of a scintilla of evidence 8 in support of the plaintiff's position will be in sufficient; there must be evidence on which the 9 jury could reasonably find for the plaintiff.”). Nor did the District Court err in disregarding 10
Wolff’s counterstatement of material fact s: in it, Wolff cited no record evidence. See Holtz v. 11 Rockefeller & Co. , 258 F.3d 62, 73 (2d Cir. 2001). 12
To satisfy procedural due process, an in stitution must give a student subject to 13 possible dismissal for academic reasons notice an d must render an ultimate decision that is 14
“careful and deliberate.” Dean v. Univ. at Buffalo Sch. of Med. & Biomedical Scis. , 804 F.3d 178, 15 191 (2d Cir. 2015). The process that Wolff recei ved met that standard. He received notice of 16 the prospective dismissal. He had an opportunity to state his case in a letter and an in-person 17 meeting, and then in a formal appeal to the Teacher Education Board of Appeals. He alleges 18 that an improper pecuniary interest tainted th e decisions of two of the administrators who 19 participated in the administrative decision to te rminate his student teaching contract and also 20 reviewed that decision on appeal. He argu es that, because they knew that Wolff was 21 considering a civil lawsuit against them, they we re conflicted and should not have sat on the 22 review board. This argument fails: the admini strators had no pecuniary interest in the 23
outcome of the school’s internal administrative appeal, and, in any event, the ultimate 24 decision on appeal was made by a different administrator, the dean of the School of 25
Education. 265 With regard to Wolff’s Titl e IX claims, the District Co urt also properly granted 1 summary judgment to SUNY Cortland and the individual defendants. 1 Title IX provides that 2 “[n]o person in the United States shall, on th e basis of sex, be excluded from participation 3 in, be denied the benefits of, or be subjected to discrimination under any education program 4 or activity receiving Federal financial assi stance.” 20 U.S.C. § 1681(a). To establish 5
harassment sufficient to create a hostile educat ional environment that would violate Title IX, 6 a plaintiff must show that the harasser’s “conduct created an educational environment 7 sufficiently hostile as to deprive [him] of ‘access to the educational opportunities or benefits’ 8 provided by [his school],” and he must show that the institutional defendants had actual 9 knowledge of the harassment and failed to respond. Hayut v. State Univ. of New York , 352 10 F.3d 733, 750 (2d Ci r. 2003) (quoting Davis v. Monroe Cty. Bd. of Educ. , 526 U.S. 629, 650 11 (1999)). First, Wolff offered no evidence that Williams’s reports altered his educational 12 environment. Rather, Wolff’s Consultation Letter was issued based on multiple reports from 13 students and faculty, and these predated an y administrator’s knowledge of the relationship 14 between Wolff and Williams. Second, although before administrators created the student 15 teaching contract Wolff had revealed his termin ated relationship with Williams, the contract 16 reflected only faculty concerns about Wolff’s professionalism, not anything related to 17 Williams’s complaints. The undi sputed evidence showed that Wo lff was dismissed for failure 18 to follow faculty instructions and work on addressing the faculty’s concerns. 19

Wolff’s reliance on Papelino v. Albany College of Pharmacy of Union University , 633 F.3d 81 20 (2d Cir. 2011), is misplaced. Even assuming that Williams and others made false reports to 21 the administrators, and those individuals were aw are that the reports were false, the evidence 22 showed that SUNY Cortland never charged Wolff with any wrongdoing related to those 23 reports (i.e., sexual harassment or cheating). Nor did it base the student contract or his 24 dismissal on those reports. For the same reasons , we must reject Wolff’s argument that the 25

1 Wolff correctly points out with respect to SUNY Cortland’s Eleventh Amendment immunity that the university can be held liable fo r violations of Title IX consistent with the Eleventh Amendment. See Franklin v. Gwinnett Cty. Pub. Schs. , 503 U.S. 60, 72-73 (1992). The District Court did not state otherwise, and analyzed Wol ff’s Title IX claims on the merits. Because Wolff failed to assert a viable Title IX claim, the Di strict Court properly denied him relief under that

statute.6 SUNY defendants can be held liable for carryin g out a program of discrimination engineered 1 by Williams. The SUNY defendants ultimately chose not to rely on the student reports when 2 creating the student teaching contract or di smissing Wolff from the program. A reasonable 3 jury could not find otherwise. 4

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We have considered all of Wolff’s remain ing arguments and find them to be without 6 merit. Accordingly, we AFFIRM the judgment of the District Court. 7

FOR THE COURT: 8 Catherine O’Hagan Wolfe, Clerk of Court 9