March 22, 2016.
from the United States District Court for the Southern
District of West Virginia, at Charleston. (2:14-cv-12333)
Thomas E. Johnston, District Judge.
Marie Kerr, Charleston, West Virginia, Appellant, Pro se.
Patrick Ballard, ANSPACH MEEKS ELLENBERGER LLP, Huntington,
West Virginia, for Appellees.
Hess, ANSPACH MEEKS ELLENBERGER LLP, Huntington, West
Virginia, for Appellees.
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
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.
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.
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
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" ).
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
677, the " culminating clinical experience for MAT
students," requires " all day student teaching
under direct supervision in a public school setting."
E.R. 99. 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.
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.
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. " Students must receive a
score of at least 'Basic' on all competencies to
receive credit for the course." Id.
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.
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.
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."
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.
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.
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.
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."
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.
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.
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
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.
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
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.
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.
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)).
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 ...