Drewrey v. Portsmouth City Sch. Bd.

264 F.Supp.3d 724

Russell A. DREWREY, Plaintiff,

v.PORTSMOUTH CITY SCHOOL BOARD, Defendant.

Action No. 2:17cv20

United States District Court, E.D. Virginia, Norfolk Division.

Signed September 6, 2017

Daymen William Xavier Robinson, Law Office of Daymen W. X. Robinson, PC, Norfolk, VA, Don Leonard Scott, Jr., Law Office of Don Scott PLLC, Portsmouth, VA, for Plaintiff.

Barry Dorans, Wolcott Rivers Gates P. C., Virginia Beach, VA, for Defendant.

MEMORANDUM ORDER

Rebecca Beach Smith, Chief Judge

This matter comes before the court on the Motion to Dismiss ("Motion") and Memorandum in Support filed by Defendant Portsmouth City School Board ("Board") on June 1, 2017. ECF Nos. 26, 27. Plaintiff Russell A. Drewrey filed a Memorandum of Law in Opposition to the Board's Motion on June 13, 2017, ECF No. 28, and the Board filed a Reply on June 19, 2017. ECF No. 29.

On June 20, 2017, this court referred the Motion to United States Magistrate Judge Douglas E. Miller, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b), to conduct hearings, including evidentiary hearings, if necessary, and to submit to the undersigned district judge proposed findings of fact, if applicable, and recommendations for the disposition of the Motion. ECF No. 30.

The Magistrate Judge filed the Report and Recommendation ("R & R") on July 10, 2017. ECF No. 35. The Magistrate Judge recommended denying the Motion. R & R at 1. By copy of the R&R, the parties were advised of their right to file written objections to the findings and recommendations made by the Magistrate Judge. See id. at 19–20. On July 21, 2017, the Plaintiff filed Objections. ECF No. 38. On August 15, 2017, the Board responded to the Plaintiff's Objections. ECF No. 40. The matter has been fully briefed and is ripe for review. For the reasons set forth below, the court DENIES the Motion to Dismiss.

I.

This action arises from a claim of employment discrimination by the Plaintiff, Russell A. Drewrey ("Drewrey"), a sixty-one year-old teacher at New Direction Center ("NDC"), an alternative school in Portsmouth, Virginia. Am. Compl. ¶¶ 8, 17, 28, ECF No. 24. Drewrey alleges that the Board used a discriminatory promotion system that disfavored older workers, causing him to be denied both advancement to numerous positions for which he applied and appropriate compensation for his position as Assistant Principal. Id. ¶¶ 21, 23–24. Thus, Drewrey alleges that the Board, in ignoring him for promotion, intentionally, willfully, and maliciously violated the Age Discrimination in Employment Act of 1967 ("ADEA"), and unlawfully retaliated against him under the ADEA, causing Drewrey economic loss and emotional harm. Id. ¶¶ 27–32.

Drewrey filed a Complaint with the Equal Employment Opportunity Commission ("EEOC") on August 15, 2016, alleging specific acts of discrimination. Id. ¶ 5. The EEOC responded to Drewrey on October 19, 2016, informing him that he had the right to institute a civil action within ninety days. Id. ¶ 26. Drewrey then filed a Complaint in this court on January 18, 2017. ECF No. 1. Drewrey filed an Amended Complaint on May 10, 2017. ECF No. 24.

The Board's Motion, filed pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), seeks dismissal of the claims against the Board, arguing only that the Board is insulated from suit by sovereign immunity or the Eleventh Amendment. Mot. to Dismiss. In the R & R, the Magistrate Judge found that neither sovereign immunity nor the Eleventh Amendment applies to the Board, and recommended that this court deny the Board's Motion. R & R at 6–19. The Board objected to the Magistrate Judge's conclusion that the claims in this case are not barred by sovereign immunity or the Eleventh Amendment. Def.'s Obj. at 1.

II.

Pursuant to Federal Rule of Civil Procedure 72(b), the court, having reviewed the record in its entirety, shall make a de novo determination of those portions of the R & R to which a party has specifically objected.¹ The court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to him with instructions. 28 U.S.C. § 636(b)(1)(C).

Pursuant to Federal Rule of Civil Procedure 12(b)(1), a Complaint should be dismissed for lack of subject matter jurisdiction "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Evans v. B. F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999) (quoting Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991) ). The Plaintiff carries the burden of proving subject matter jurisdiction. U.S. ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2009). To meet this burden, the Plaintiff must prove subject matter jurisdiction exists by a preponderance of the evidence. Id. Where the Defendant challenges subject matter jurisdiction pursuant to Rule 12(b)(1), the court should take the facts alleged in the Complaint as true, and must deny the Motion to Dismiss, if the Complaint alleges sufficient facts to invoke subject matter jurisdiction. Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009).

Although the Eleventh Amendment is not a "true limit" on federal courts' subject matter jurisdiction, it does inhibit the exercise of that jurisdiction. Roach v. W. Va. Reg'l Jail & Corr. Facility Auth., 74 F.3d 46, 48 (4th Cir. 1996). Therefore, if the Eleventh Amendment or sovereign immunity applies, this court should grant the Motion to Dismiss for lack of subject matter jurisdiction.

The Eleventh Amendment immunizes nonconsenting states against suits for damages in federal court. Will v. Mich. Dept. of State Police, 491 U.S. 58, 67, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Eleventh Amendment immunity extends to state officials and "arm[s] of the State," but not to municipal corporations or similar political subdivisions. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). The ADEA does not abrogate a state's Eleventh Amendment immunity from suit by private persons. See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 92, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000). Accordingly, the issue here is whether the Board "is to be treated as an arm of the State partaking of the State's Eleventh Amendment immunity, or is instead to be treated as a municipal corporation or other political subdivision to which the Eleventh Amendment does not extend." Mt. Healthy, 429 U.S. at 280, 97 S.Ct. 568. To make that determination, this court must look at the "nature of the entity created by state law." Id.

In Cash v. Granville County School Board of Education, the Fourth Circuit lays out the factors courts should consider to determine whether state entities are entitled to Eleventh Amendment immunity. 242 F.3d 219, 221, 223–24 (4th Cir. 2001) (holding that a North Carolina county school board was more akin to a municipality than an am of the State). The primary factor to consider is the State treasury, looking at whether a judgment against the governmental entity would be paid from the State's treasury. Id. at 223. Courts should also consider three additional factors: (1) the extent of the State's control over the entity; "(2) the scope of the entity's concerns—whether local or statewide—with which the entity is involved; and (3) the manner in which State law treats the entity." Id. at 224.

III.

The Board objects to the Magistrate Judge's finding that Virginia school boards should be treated as municipal corporations, not as arms of the State, and therefore are not immunized by the Eleventh Amendment.² This court will examine each of the Cash factors to determine whether the Board is entitled to sovereign immunity.

A. State Treasury Factor

First, applying the State treasury factor, the Magistrate Judge found that, by statute, judgments against Virginia school boards are not paid from the Commonwealth's treasury. R&R at 11–12 (citing Va. Code § 22.1–82 (requiring payment of any judgment against a school board to come from funds appropriated to it, not from the State)). Thus, the most "salient" factor, the State treasury factor, "weighs against finding [the school board] immune." Cash, 242 F.3d at 224.

The Board does not dispute that the Commonwealth does not pay for judgments against Virginia school boards, but argues that the State treasury factor is not dispositive when determining whether an entity falls within the purview of the Eleventh Amendment. See Def.'s Obj. at 8. Although the State treasury factor "does not deserve dispositive preeminence," it still "remains of considerable importance." U.S. ex rel. Oberg v. Pa. Higher Educ. Assistance Agency, 745 F.3d 131, 137 n.4 (4th Cir. 2014) (citation omitted). A governmental entity may still enjoy sovereign immunity, if "the relationship between the governmental entity and the State [is] sufficiently close to make the entity an arm of the State." Cash, 242 F.3d at 224. Thus, it is necessary to evaluate the Commonwealth of Virginia's relationship with its local school boards under the three additional Cash factors to determine whether they should be considered an arm of the State.

B. Degree of Control

The first additional factor is the State's degree of control over local school boards. Id. The Board objects to the Magistrate Judge's finding that Virginia exercises little direct control over school boards. Def.'s Obj. at 2–6. The Magistrate Judge referred to Cole v. Buchanan County School Board, where the district court found that examining Virginia law leads to the result that "county school boards operate as independent units of local government." 661 F.Supp.2d 569, 571 (W.D. Va. 2009). For example, the court in Cole found that Virginia school boards were corporate bodies, vested with the power to assign duties to its own members, contract, sue and be sued, and hold title to real property. Id. (citing Va. Code § 22.1–71 ). Additionally,...