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Kerr v. Marshall Univ. Bd. of Governors

United States Court of Appeals, Fourth Circuit

May 24, 2016

LISA MARIE KERR, Plaintiff - Appellant,
v.
MARSHALL UNIVERSITY BOARD OF GOVERNORS; GENE BRETT KUHN; JUDITH SOUTHARD; SANDRA BAILEY; TERESA EAGLE; LISA HEATON, and; DAVID PITTENGER, Defendants - Appellees

         Argued March 22, 2016.

          Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. (2:14-cv-12333) Thomas E. Johnston, District Judge.

         ARGUED:

         Lisa Marie Kerr, Charleston, West Virginia, Appellant, Pro se.

         Andrew Patrick Ballard, ANSPACH MEEKS ELLENBERGER LLP, Huntington, West Virginia, for Appellees.

         ON BRIEF:

         John A. Hess, ANSPACH MEEKS ELLENBERGER LLP, Huntington, West Virginia, for Appellees.

         Before GREGORY and DUNCAN, Circuit Judges, and Richard L. VOORHEES, United States District Judge for the Western District of North Carolina, sitting by designation. Judge Duncan wrote the opinion, in which Judge Gregory and Judge Voorhees joined.

          OPINION

         DUNCAN, Circuit Judge:

         Lisa Kerr appeals the district court's order granting Appellees' motion to dismiss her civil action pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Because we conclude that the district court properly determined both that sovereign immunity bars Kerr's claims against the Marshall University Board of Governors (" MUBG" ), and that the allegations in Kerr's pro se complaint against the other Appellees fail to state a claim upon which relief can be granted, we affirm.

         I.

         A.

         After practicing law for more than fifteen years, Kerr enrolled in Marshall University's Master of Arts in Teaching (" MAT" ) program to obtain a West Virginia teaching license. A student-teaching practicum, EDF 677, is a required component of the MAT program.

         In the fall of 2013, Kerr was a student in EDF 677. A few weeks before the end of the semester, however, Kerr left her student-teaching post in protest over differences with her supervising teacher. Kerr was unable to resolve these differences with the Marshall administration and did not return to her student-teaching post. She was not awarded credit for EDF 677, and she received neither her MAT nor her teaching license.

         On March 14, 2014, after unsuccessfully pursuing reconsideration through Marshall's internal grade-appeals process, Kerr filed a complaint in the Southern District of West Virginia. The complaint named as defendants MUBG; Gene Kuhn, Kerr's supervising teacher in EDF 677; Judith Southard, Kerr's Marshall supervisor for EDF 677; Sandra Bailey, the EDF 677 Program Coordinator at Marshall; Teresa Eagle and Lisa Heaton, both Deans of Marshall's College of Education; and David Pittenger, the Dean of Marshall's Graduate Studies (collectively, " Appellees" ).

         B.

         We set forth the relevant facts as alleged in Kerr's complaint. See Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 364-65 (4th Cir. 2012). To provide context to Kerr's allegations, we also draw on the Marshall University MAT and Post Bac Programs Student Teacher Handbook (the " Student-Teacher Handbook" or " Handbook" ), on which Kerr's complaint relies and which is integral to her complaint.[1]

         1.

         EDF 677, the " culminating clinical experience for MAT students," requires " all day student teaching under direct supervision in a public school setting." E.R. 99.[2] The Marshall Student-Teacher Handbook contains regulations by which participants must abide. Participants must also follow " any additional directives given by the [Marshall supervisor]," E.R. 106, who serves as the student teacher's " primary Marshall contact" for any student-teaching issues, E.R. 12. Over the course of the semester, student teachers are expected to collaborate with their supervising classroom teachers and Marshall supervisors to improve their lesson planning, lesson presentation, and classroom management.

         As the above arrangement suggests, the student teacher does not have exclusive control of the classroom. For example, the student teacher is not solely responsible for determining grades, and the supervising classroom teacher retains ultimate responsibility " to the school administration, the school board, and the parents for promoting the best interests of their students." E.R. 114.

         EDF 677 participants receive a grade of " Credit" or " No Credit" based in part on an " Evaluation of Classroom Performance" by the student's supervising classroom teacher and Marshall supervisor, which becomes " a permanent part of the student teacher's record." E.R. 100.[3] " Students must receive a score of at least 'Basic' on all competencies to receive credit for the course." Id.

         The Handbook prescribes the attendance policy: " Students are required to be present every day," but are allowed one to three absences for documented illnesses. E.R. 116. " If absences total more than three days, students will be required to complete an extended experience or return in a subsequent semester" to complete the missed time. Id.

         2.

         Kerr's teaching experience deteriorated over the course of the Fall 2013 Semester. Although the specific events of which she complains began in November, Kerr also makes general references to a lack of support on the Marshall side throughout the semester.

         On the Marshall side, during the Fall 2013 Semester, Bailey was Marshall's EDF 677 Coordinator, and Southard was the Marshall supervisor for students enrolled in EDF 677. The complaint alleges that at the beginning of the semester, on or around August 2013, Bailey and Southard learned that Kerr is homosexual. Kerr claims that " each time [she] requested academic or professional support" during the Fall 2013 Semester, she was " stonewalled" by Bailey and Southard. E.R. 12. Southard " routinely ignored" Kerr's emails, and the two Marshall University employees gave " antagonistic, perfunctory, dismissive and even dishonest" responses to Kerr's " reasonable requests for advice." Id.[4]

         On the classroom side, Kerr's complaint focuses on her relationship with her supervising classroom teacher, Kuhn. The gist of Kerr's complaint is that Kuhn did not support her authority with the students. For example, according to Kerr, students commented to her, " we don't have to do the work you give us. Mr. Kuhn's going to give us a good grade anyway." E.R. 13. When Kerr approached Kuhn with her concerns, he responded with " silence or cursory brush-offs." Id. Kerr claims that she did not notify Southard or Bailey of the student comments or the resistance to her teaching because she had " received no meaningful support from defendants Southard or Bailey in response to prior requests." Id. Despite these issues, Kerr received positive student-teaching evaluations until November 2013.

         On November 19, 2013, however, Kerr discovered the grades Kuhn had entered into the online grade book. In Kerr's view, Kuhn had inflated the grades to such an extent as to amount " to a 'free pass' not to do the work Ms. Kerr assigned." Id. At this point, Kerr decided to report her concerns to her Marshall supervisor.

         Kerr sent an email to Southard and Kuhn, " advis[ing]" the two that (1) Kuhn's " conduct had seriously undermined the professional relationship" ; (2) " in the exercise of her best professional judgment, [Kerr] would suspend further interaction with [Kuhn] pending follow-up from Marshall" ; and (3) she understood that " she had fully satisfied the requirements for student teaching." Id. At that point, neither Kuhn nor Southard had completed Kerr's Evaluation of Classroom Performance. The next day, Bailey--in her capacity as EDF 677 Coordinator--responded to the message and a meeting was set for December 5, 2013.

         At the December 5, 2013, meeting, Kerr met with Bailey and Eagle, a Dean of Marshall University's College of Education. Bailey and Eagle informed Kerr " that she would be denied academic credit for her student teaching experience, would not receive her master's degree, and would not be recommended for teacher certification." E.R. 14. During the meeting, Bailey read allegations against Kerr from " statements provided by Mr. Kuhn and Ms. Southard," of which Kerr complains she had no prior knowledge. Id. Kerr was handed documents that included Kuhn's evaluation, which Kerr read and attempted to dispute, but she was told that the statements were " dispositive" against her. Id. According to Kerr, she was notified that " her only opportunity to be heard would occur during 'the appeal process.'" E.R. 16. Kerr sought to persuade the Marshall administration to reconsider its decision, but, on December 15, 2013, the grade was " entered into [Kerr's] permanent academic record." Id.

         3.

         Marshall provides an internal, three-step appeals process to MAT students who are dissatisfied with a given grade. The grade is reviewed first by course staff, then by the Deans of the College of Education, and finally by the Dean of Graduate Studies. Kerr submitted a 24-page appeal statement with supporting exhibits at the first stage of her appeal, before Appellees Southard and Bailey. They upheld the denial of credit, and Kerr moved to the second step.

         Appellees Eagle and Heaton, both Deans of Marshall's College of Education, decided the second step of Kerr's appeal. The complaint alleges that, in refusing to change Kerr's grade of " No Credit," Eagle and Heaton relied on " new false statements plainly contradicted by Marshall's own records" and failed to address the evidence and arguments Kerr had presented. E.R. 18.[5]

         Appellee Pittenger, the Dean of Graduate Studies at Marshall, heard Kerr's final appeal. Kerr submitted an additional appeal statement that included 20 exhibits. Pittenger nevertheless upheld Kerr's grade of " No Credit," stating that Kerr had raised her complaints about Kuhn too late in the semester for Marshall to address them in the manner Kerr desired.

         C.

         On March 14, 2014, Kerr filed a complaint in the United States District Court for the Southern District of West Virginia. The complaint raises seven claims: (1) defamation against Appellees MUBG, Kuhn, Southard, and Bailey; (2) tortious interference with a business expectancy against Appellees MUBG, Kuhn, Southard, Bailey, and Eagle; (3) the tort of outrage against Appellees MUBG, Kuhn, Southard, Bailey, and Eagle; (4) a violation of Kerr's due process rights under 42 U.S.C. § 1983 against Appellees MUBG, Southard, Bailey, and Eagle; (5) a violation of Kerr's equal protection rights pursuant to § 1983, on the basis of Kerr's sexual orientation, against Appellees MUBG, Southard, Bailey, Eagle, Heaton, and Pittenger; (6) a violation of Kerr's equal protection rights under § 1983, as a " class of one," against Appellees MUBG, Southard, Bailey, Eagle, Heaton, and Pittenger; and (7) a violation of the Fair Labor Standards Act (" FLSA" ), 29 U.S.C. § § 201-219, against Appellees MUBG and Kuhn. Kerr seeks compensatory damages against MUBG and the individual Appellees and injunctive relief against MUBG.

         Appellees moved to dismiss Kerr's action pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The district court referred the motion to a magistrate judge for the submission of proposed findings and recommendations (" PF& R" ) pursuant to 28 U.S.C. § 636(b)(1)(B). The magistrate judge reviewed the complaint and the parties' memoranda of law and recommended that the district court grant Appellees' motion to dismiss in its entirety. See Kerr v. Marshall Univ. Bd. of Governors, No. 2:14-CV-12333, 2015 WL 1405540, at *30 (S.D.W.Va. Feb. 4, 2015) (" Magistrate Judge's Report" ). Kerr objected to all but one of the magistrate judge's proposed findings and to all of the magistrate judge's recommendations. The district court, reviewing the PF& R in light of those objections, granted Appellees' motion to dismiss. Kerr v. Marshall Univ. Bd. of Governors, No. 2:14-CV-12333, 2015 WL 1405537, at *26 (S.D.W.Va. Mar. 26, 2015) (" District Court Opinion" ). This appeal followed.

         II.

         On appeal, Kerr argues that the district court erred in granting Appellees' motion to dismiss. Kerr claims that the district court erred by submitting her claim to a magistrate judge for PF& R, that MUBG was not entitled to sovereign immunity, and that her complaint plausibly alleged each of her seven claims. After setting out the relevant standard of review, we address each of Kerr's arguments in turn.

         A.

          We review de novo a district court's application of sovereign immunity, S.C. Wildlife Fed'n v. Limehouse, 549 F.3d 324, 332 (4th Cir. 2008), and dismissal for failure to state a claim, Clatterbuck, 708 F.3d at 554.

          In our review of a 12(b)(6) dismissal, we accept as true the factual allegations set forth in the complaint. Wag More Dogs, LLC v. Cozart, 680 F.3d at 364-65. In order to state a claim, those " [f]actual allegations must be enough to raise a right to relief above the speculative level." Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted). A complaint must therefore allege " enough facts to state a claim to relief that is plausible on its face." Id. at 570. In reviewing the motion, " we are not bound by the legal conclusions drawn in the complaint." Adcock v. Freightliner LLC, 550 F.3d 369, 374 (4th Cir. 2008) (citing Dist. 28, United Mine Workers of Am., Inc. v. Wellmore Coal Corp., 609 F.2d 1083, 1085-86 (4th Cir. 1979)).

         We are mindful of our obligation to liberally construe a pro se complaint. See Jehovah v. Clarke,798 F.3d 169, 176 (4th Cir. 2015) (citing Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014)). Although this court has not determined whether a pro se plaintiff who is also an attorney receives the benefit of this liberal construction, we need not decide that issue here: Kerr's complaint fails whether or not it is liberally construed. We note that Kerr's arguments are not always a model of clarity. Out of an abundance of caution, on these facts, and in ...


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