     07-3190-cv
     Gorton v. Gettel


 1                              UNITED STATES COURT OF APPEALS
 2
 3                                  FOR THE SECOND CIRCUIT
 4
 5                                    August Term, 2008
 6
 7
 8   (Argued: November 25, 2008                    Decided: January 28, 2009)
 9
10                                  Docket No. 07-3190-cv
11
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13
14   CARRIE GORTON,
15                 Plaintiff-Appellee,
16
17                      -v.-
18
19   BRUCE GETTEL,
20                             Defendant,
21
22   SULLIVAN COUNTY BOCES,
23                 Defendant-Appellant.
24
25
26   - - - - - - - - - - - - - - - - - - - -x
27

28           Before:               JACOBS, Chief Judge, WALKER and
29                                 CALABRESI, Circuit Judges.
30
31           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                               ANNA J. ERVOLINA, Morris Duffy
 2                               Alonso & Faley, New York, NY ,
 3                               for Defendant-Appellant.
 4
 5                               MICHAEL H. SUSSMAN, Goshen, NY ,
 6                               for Plaintiff-Appellee.
 7
 8
 9
10   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.    We

17   affirm primarily for the reasons given by the district court

18   in its thorough and well-reasoned opinion.

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.   Sullivan County BOCES was created

24   in 1950 pursuant to this statute.

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


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1    harassed repeatedly by defendant Bruce Gettel, a fellow

2    teacher.     After discovery, Sullivan County BOCES moved for

3    summary judgment arguing, inter alia, that it is an arm of

4    New York State entitled to Eleventh Amendment immunity.         The

5    district court denied Appellant’s motion.

6        “[A]s a general rule, state governments may not be sued

7    in federal court unless they have waived their Eleventh

8    Amendment immunity.”     Woods v. Rondout Valley Cent. School

9    Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006) (citing

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.”     Id. (internal quotation marks and citations

14   omitted).     However, immunity does not extend to suits

15   against “municipal corporation[s] or other governmental

16   entit[ies] which [are] not . . . arm[s] of the State.”      Id.

17   (quoting Alden v. Maine, 527 U.S. 706, 756 (1999)).

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.”     Id. at 235 (quoting Tennessee v. Lane,

22   541 U.S. 509, 514 n.1 (2004)).      In considering whether an

23   entity is an arm of the state, we review the district

                                     3
1    court’s factual findings for clear error and its legal

2    conclusions de novo.      See McGinty v. New York, 251 F.3d 84,

3    90 (2d Cir. 2001)).      The burden is on the party seeking

4    immunity to demonstrate that it is an arm of the state.

5    Woods, 466 F.3d at 237.

6        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)).       If all

16   factors point in the same direction, a court’s analysis is

17   complete.   Id. at 96.     If the factors point in different

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.”      Id. (citing

21   Mancuso, 86 F.3d at 293).      “If the answer is still in doubt,

22   a concern for the state fisc will control.”      Id.

23

                                      4
1        We have held that local school districts in New York

2    State are not arms of the state.    See Fay v. S. Colonie

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).    We reached the same

6    conclusion with respect to New York’s local boards of

7    education.    See Woods, 466 F.3d at 251.   These precedents

8    are influential here, because BOCES share many common

9    features with local school districts and boards of

10   education.

11       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.     In Woods, we

16   held that characterization weighed against immunity.       466

17   F.3d at 243-44.    The district court reached the same

18   conclusion.

19       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.   Sullivan County BOCES

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.   Although this

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.     We

9    therefore agree with the district court that the first

10   factor weighs against immunity.

11       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],”   N.Y. Educ. Law § 1950(2-b), and that

16   BOCES shall be funded by constituent school districts, id.

17   § 1950(4), (5).   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.   See, e.g.,

                                   6
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).          The district court

8    was correct.

9        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.    This provision was deemed significant in Woods

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    . . . .”   Id.       Section 1950 of the New York

19   Education Law permits BOCES to establish similar reserve

20   funds.    N.Y. Educ. Law § 1950(4)(aa).

21       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.          But as the

                                        7
1    district court observed, New York State also provides

2    substantial aid to school districts, which are not arms of

3    the state.   There is no evidence that New York State would

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.     Moreover, Woods explicitly

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,

10   a judgment against the state.”     466 F.3d at 249.   The

11   district court’s analysis of the sixth factor was correct.

12       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.”   McGinty, 251 F.3d at 96 (citing

16   Mancuso, 86 F.3d at 293).

17       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.     There is some risk of

23   financial harm to New York State by way of increased

                                    8
1    spending for BOCES services and a reduction in the benefit

2    or value the State gets from its investment.   But school

3    districts also receive significant state aid and the same

4    arguments apply to them.   Yet we have held they are not

5    entitled to immunity.

6        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.




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