     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 CITING TO A SUMMARY ORDER MUST SERVE A
     COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1          At a stated term of the United States Court of Appeals for the Second Circuit, held at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
 3   on the 6th day of February, two thousand seventeen.
 4
 5   PRESENT:
 6              GUIDO CALABRESI,
 7              SUSAN L. CARNEY,
 8                          Circuit Judges,
 9              JOHN G. KOELTL,
10                          District Judge.
11   _________________________________________
12
13   JEFFREY WOLFF,
14
15                       Plaintiff-Appellant,
16
17                                 v.                                      No. 16-553
18
19   STATE UNIVERSITY OF NEW YORK, COLLEGE AT
20   CORTLAND, MICAL WILLIAMS, KIMBERLY A. ROMBACH,
21   CYNTHIA BENTON, SUSAN WILSON, ANDREA
22   LACHANCE, ELIZABETH S. KLEIN, JUDITH SCHILLO,
23   MARLEY S. BARDUHN, MARK PRUS,
24
25                       Defendants-Appellees.**

     
             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.
 1   _________________________________________
 2
 3   FOR PLAINTIFF-APPELLANT:                           JEFFREY WOLFF, pro se, Catskill, NY.
 4
 5   FOR DEFENDANTS-APPELLEES
 6   STATE UNIVERSITY OF NEW YORK,
 7   COLLEGE AT CORTLAND, KIMBERLY
 8   A. ROMBACH, CYNTHIA BENTON,
 9   SUSAN WILSON, ANDREA LACHANCE,
10   ELIZABETH S. KLEIN, JUDITH SCHILLO,
11   MARLEY S. BARDUHN, MARK PRUS:       JONATHAN B. FELLOWS (Suzanne O.
12                                       Galbato, on the brief), Bond, Schoeneck &
13                                       King, PLLC, Syracuse, NY.
14
15   FOR DEFENDANT-APPELLEE
16   MICAL WILLIAMS:                                    LESLIE P. GUY, Hinman, Howard &
17                                                      Kattell, LLP, Binghamton, NY.
18
19          Appeal from a judgment of the United States District Court for the Northern District
20   of New York (Sannes, J.).

21          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
22   ADJUDGED, AND DECREED that the February 5, 2016 judgment of the District Court
23   is AFFIRMED.

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

30          We review de novo a district court’s grant of summary judgment, with the view that
31   summary judgment is appropriate only “if the movant shows that there is no genuine dispute
32   as to any material fact and the movant is entitled to judgment as a matter of law.” Sousa v.
33   Marquez, 702 F.3d 124, 127 (2d Cir. 2012) (internal quotation marks omitted). Wolff has
34   limited the issues on appeal to his claims of procedural and substantive due process
35   violations under § 1983 and hostile educational environment under Title IX. See LoSacco v.
                                                    2
 1   City of Middletown, 71 F.3d 88, 93 (2d Cir. 1995) (“[W]e need not manufacture claims of error
 2   for an appellant proceeding pro se, especially when he has raised an issue below and elected
 3   not to pursue it on appeal.”).

 4          As an initial matter, the District Court properly granted summary judgment to
 5   defendant-appellee Mical Williams. For a defendant to be liable under § 1983, she must be a
 6   state actor or must have acted in concert with a state actor. See Am. Mfrs. Mut. Ins. Co. v.
 7   Sullivan, 526 U.S. 40, 49-50 (1999); Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999).
 8   Although Williams is a SUNY Cortland lecturer, she did not act in that capacity with regard
 9   to Wolff, and Wolff offered no evidence either (1) of concerted action between Williams and
10   the SUNY defendants, or (2) that she used her position to influence the dismissal procedure.
11   Wolff did not raise his “cat’s paw” theory—that Williams manipulated the SUNY defendants
12   into dismissing him—in the District Court; it thus is not properly before us on appeal. See
13   Virgilio v. City of New York, 407 F.3d 105, 116 (2d Cir. 2005). Even were it properly
14   presented, however, it would fail on the merits because, as discussed below, Wolff offered
15   no evidence that Williams’s actions caused his dismissal.

16          The District Court properly granted summary judgment to the other individual
17   SUNY defendants on Wolff’s substantive and procedural due process claims. To establish a
18   substantive due process claim based on an academic decision, a plaintiff must show such “a
19   substantial departure from accepted academic norms as to demonstrate that the person or
20   committee responsible did not actually exercise professional judgment.” Regents of Univ. of
21   Mich. v. Ewing, 474 U.S. 214, 225 (1985). For academic decisions, “educational institutions
22   have the right to receive summary judgment unless there is evidence . . . that there was no
23   rational basis for the decision or that it was motivated by bad faith or ill will unrelated to
24   academic performance.” Clements v. Nassau Cty., 835 F.2d 1000, 1004 (2d Cir. 1987). Wolff
25   points to two emails as evidence of the institution’s purported bad faith or ill will and argues
26   that, in granting summary judgment for defendants, the District Court failed to view the
27   emails in the light most favorable to him. But, as the District Court found, the emails did not
28   evidence bad faith or ill will; rather, they expressed substantial concerns about Wolff’s
29   professionalism. One email related to the student teaching contract and, although the writer
                                                     3
 1   expressed a hope that Wolff’s behavior would cause him to be removed from the program
 2   before his student teaching began, the email reflected an intention to enter into the contract
 3   with Wolff despite concerns about his performance. Another email referred to a previous
 4   message discussing the start of an academic dishonesty investigation into Wolff, and
 5   reflected an administrator’s opinion that the removal process should begin. These emails do
 6   not raise a genuine issue of fact as to the nature of the SUNY defendants’ intentions; fairly
 7   read, they reflect no more than appropriate professional and academic concerns. See Anderson
 8   v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (“The mere existence of a scintilla of evidence
 9   in support of the plaintiff's position will be insufficient; there must be evidence on which the
10   jury could reasonably find for the plaintiff.”). Nor did the District Court err in disregarding
11   Wolff’s counterstatement of material facts: in it, Wolff cited no record evidence. See Holtz v.
12   Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001).

13          To satisfy procedural due process, an institution must give a student subject to
14   possible dismissal for academic reasons notice and must render an ultimate decision that is
15   “careful and deliberate.” Dean v. Univ. at Buffalo Sch. of Med. & Biomedical Scis., 804 F.3d 178,
16   191 (2d Cir. 2015). The process that Wolff received met that standard. He received notice of
17   the prospective dismissal. He had an opportunity to state his case in a letter and an in-person
18   meeting, and then in a formal appeal to the Teacher Education Board of Appeals. He alleges
19   that an improper pecuniary interest tainted the decisions of two of the administrators who
20   participated in the administrative decision to terminate his student teaching contract and also
21   reviewed that decision on appeal. He argues that, because they knew that Wolff was
22   considering a civil lawsuit against them, they were conflicted and should not have sat on the
23   review board. This argument fails: the administrators had no pecuniary interest in the
24   outcome of the school’s internal administrative appeal, and, in any event, the ultimate
25   decision on appeal was made by a different administrator, the dean of the School of
26   Education.




                                                      4
 1          With regard to Wolff’s Title IX claims, the District Court also properly granted
 2   summary judgment to SUNY Cortland and the individual defendants.1 Title IX provides that
 3   “[n]o person in the United States shall, on the basis of sex, be excluded from participation
 4   in, be denied the benefits of, or be subjected to discrimination under any education program
 5   or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). To establish
 6   harassment sufficient to create a hostile educational environment that would violate Title IX,
 7   a plaintiff must show that the harasser’s “conduct created an educational environment
 8   sufficiently hostile as to deprive [him] of ‘access to the educational opportunities or benefits’
 9   provided by [his school],” and he must show that the institutional defendants had actual
10   knowledge of the harassment and failed to respond. Hayut v. State Univ. of New York, 352
11   F.3d 733, 750 (2d Cir. 2003) (quoting Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 650
12   (1999)). First, Wolff offered no evidence that Williams’s reports altered his educational
13   environment. Rather, Wolff’s Consultation Letter was issued based on multiple reports from
14   students and faculty, and these predated any administrator’s knowledge of the relationship
15   between Wolff and Williams. Second, although before administrators created the student
16   teaching contract Wolff had revealed his terminated relationship with Williams, the contract
17   reflected only faculty concerns about Wolff’s professionalism, not anything related to
18   Williams’s complaints. The undisputed evidence showed that Wolff was dismissed for failure
19   to follow faculty instructions and work on addressing the faculty’s concerns.

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

     1
              Wolff correctly points out with respect to SUNY Cortland’s Eleventh Amendment
     immunity that the university can be held liable for 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 Wolff’s Title IX claims on the merits. Because Wolff
     failed to assert a viable Title IX claim, the District Court properly denied him relief under that
     statute.
                                                           5
1   SUNY defendants can be held liable for carrying out a program of discrimination engineered
2   by Williams. The SUNY defendants ultimately chose not to rely on the student reports when
3   creating the student teaching contract or dismissing Wolff from the program. A reasonable
4   jury could not find otherwise.

5                                              ***

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

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




                                                 6
