Drewrey v. Portsmouth Public Schools et al, No. 2:2017cv00020 - Document 41 (E.D. Va. 2017)
Court Description: MEMORANDUM ORDER denying 26 Motion to Dismiss for Failure to State a Claim by Portsmouth City School Board; adopting 35 Magistrate Judge's Report and Recommendations. The Board's Objections to the Magistrate Judge's R&R are OVERR ULED, and the Magistrate Judge's R&R is hereby ADOPTED AND APPROVED IN FULL. The Motion to Dismiss is DENIED, and the Plaintiff may proceed on the ADEA claims against the Board. Signed by Chief District Judge Rebecca Beach Smith and filed on 9/6/17. (tbro)
Download PDF
<![CDATA[
Drewrey v. Portsmouth Public Schools et al Doc. 41 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Norfolk Division RUSSELL A. DREWREY, Plaintiff/ ACTION NO. V. 2:17cv20 PORTSMOUTH CITY SCHOOL BOARD, Defendant. MEMORANDUM ORDER This matter comes before the court on the Motion to Dismiss ("Motion") and Memorandum Portsmouth City School in Board Support ("Board") filed by on June 1, Defendant 2017. EOF 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, 2017. ECF No. and the Board filed a Reply on June 19, 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), hearings, if district to conduct necessary, and hearings, to including submit judge proposed findings of fact, to if the evidentiary undersigned applicable, and recommendations for the disposition of the Motion. ECF No. 30. Dockets.Justia.com The ("R&R") Magistrate on July 10, recommended denying the parties were objections to Magistrate Judge the Judge. filed matter has Report ECF No. 35. 2017. the Motion. advised findings See id. the their and at and The R&R at 1. of Plaintiff filed Objections. Board responded to the By right Magistrate copy of to 19-20. ECF No. On the July ripe for R&R, written made by the 2017, the 21, 38. On August 15, been fully briefed and is Judge file recommendations Plaintiff's Objections. reasons set forth below, Recommendation 2017, the ECF No. 40. The review. For the the court DENIES the Motion to Dismiss. I. This action arises from a claim discrimination by the Plaintiff, Russell A. a of Drewrey {''Drewrey") / sixty-one year-old teacher at New Direction Center alternative school in Portsmouth, employment Virginia. ("NDC")/ Am. an Compl. nil 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. HH 21, 23-24. Thus, Drewrey alleges that the Board, intentionally, willfully, Discrimination in in and Employment ignoring him maliciously Act of for violated 1967 promotion, the ("ADEA")/ Age and unlawfully retaliated against him under the ADEA, causing Drewrey economic loss and emotional harm. Id. HH 27-32. Drewrey Opportunity filed a Complaint Commission with the Equal ("EEOC") on August specific acts of discrimination. Id. K 5. The EEOC responded to Drewrey on October 19, 2016, to institute Drewrey a civil then January 18, 2017. on May 10, 2017. a ECF No. ECF No. 12(b)(1) and alleging ninety in days. Id. K 26. this court on Drewrey filed an Amended Complaint 24. The Board's Motion, Procedure within Complaint 1. 2016, informing him that he had the right action filed 15, Employment filed pursuant to Federal Rule of Civil 12(b)(6), seeks dismissal of the claims against the Board, arguing only that the Board is insulated from suit by sovereign Dismiss. In sovereign Board, R&R the immunity or R&R, immunity the nor the Eleventh Amendment. Magistrate the Eleventh Judge found Amendment that applies Mot. to neither to the and recommended that this court deny the Board's Motion. at 6-19. conclusion The that the Board objected claims in to this the case Magistrate are not Judge's barred by sovereign immunity or the Eleventh Amendment. Def.'s Obj. at 1. II. Pursuant court, de to Federal Rule of Civil Procedure having reviewed the record in its entirety, novo determination of those portions of the 72(b), the shall make a R&R to which a party has specifically objected.^ The court may accept, reject, or modify, in Magistrate whole Judge, instructions. to in or be the recommendation the matter to of him the with § 636(b)(1)(C). Federal should part, recommit 28 U.S.C. Pursuant Complaint or Rule of dismissed Civil for Procedure lack of 12(b)(1), subject a matter jurisdiction ''only if the material jurisdictional facts are not in dispute matter of (4th Cir. Co. V. and law." 1999) moving party Evans carries jurisdiction. (4th Cir. U.S. 2009) . matter evidence". Id. facts 945 the B. F. is entitled Perkins F.2d 768 of the to alleged in the exists as a 647 Cir. 1991)). subject The matter 555 F.3d 337, 347 the Plaintiff must prove by Defendant Rule (4th Jadhav, To meet this burden, Where prevail 166 F.3d 642, proving Vuyyuru v. jurisdiction Co. , to Fredericksburg & Potomac R.R. 765, burden ex rel. jurisdiction pursuant the v. (quoting Richmond, United States, Plaintiff subject the a preponderance challenges 12(b)(1), Complaint as the true, of subject court the matter should take and must deny the ^ There were no objections to the Magistrate Judge's recommendation to deny the Motion, as to dismissal under Federal Rule of Civil Procedure 12(b) (6) for failure upon which relief can be granted. Therefore, the Magistrate Judge's recommendation to Motion, however, to state a claim this court accepts deny the Board's as to dismissal under Rule 12(b)(6). The Board did, object to the Magistrate Judge's recommendation to deny the Motion, as to dismissal under Rule herein reviews de novo that objection. 12(b) (1), and the court Motion to Dismiss, if the Complaint alleges sufficient facts to invoke subject matter jurisdiction. F.3d 187, 192 (4th Cir. Although the federal courts' exercise Corr. if is not subject matter jurisdiction, that jurisdiction. Roach 74 F.3d 46, Eleventh Amendment should grant United States, 585 2009). Eleventh Amendment Facility Auth., the court of Kerns v. the or 48 v. "true limit" W. Va. Reg'l Jail & 1996). Therefore, immunity applies, to Dismiss on it does inhibit the (4th Cir. sovereign Motion a for lack this of subject nonconsenting states matter jurisdiction. The Eleventh Amendment immunizes against suits for damages in federal court. Will v. Mich. Dept. of State Police, immunity extends but not to municipal 274, V. 280 Fla. Accordingly, the 58, 67 (1989) . corporations (1977). or of issue of Amendment the State," similar political of Educ. v. Doyle, The ADEA does not abrogate a immunity Bd. Eleventh "arm[s] Healthy City Sch. Dist. Bd. Eleventh Amendment Kimel U.S. to state officials and subdivisions. Mt. 429 U.S. 4 91 from suit Regents, here is by private 528 whether U.S. the state's persons. 62, Board 92 See (2000). "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. To make that determination, this court must look at the "nature of the entity created by state law." Id. In Cash v. Fourth Circuit Granville County School Board of Education, lays determine whether Amendment out immunity. the state 242 factors entities F.3d 219, courts are 221, the should consider entitled 223-24 to (4th to Eleventh 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, against Id. additional factors: entity; local (3) at or the judgment the governmental entity would be paid from the State's treasury. the looking at whether a at 223. 'M2) (1) the Courts the manner in extent scope statewide—with which should of of the also the consider State's entity's three control over concerns—whether which the entity is State law treats the involved; and entity." Id. finding that 224. III. The Virginia Board objects school corporations, not to boards as arms the Magistrate should of the be State, Judge's treated and immunized by the Eleventh Amendment.^ This as municipal therefore are not court will examine ^ The Board agrees that the controlling authority is Cash, but disagrees as factors. to the Magistrate Judge's analysis under such each of the Cash factors to determine whether the Board is entitled to sovereign immunity. A. First, applying Judge found that, boards are at 11-12 it, the not paid (citing Va. not State by statute, judgment against a to State Treasury Factor from from Code the that dispute treasury factor treasury factor (4th Higher Cir. See "does not Assistance (citation governmental Thus, the entity entity an and arm payment "salient" finding R&R of any factor, [the school school boards, not within at 8. importance." Agency, A but not argues dispositive when the purview of Although State preeminence," U.S. 745 the F.3d ex rel. 131, governmental the it Oberg 137 n.4 entity may if "the relationship between the State the Commonwealth does dispositive omitted). the of Obj . deserve considerable Educ. 2 014) Def.'s the is falls still enjoy sovereign immunity, malce that State Amendment. Pa. treasury. 242 F.3d at 224. Virginia Eleventh most "weighs against determining whether an entity V. the against "remains of (requiring Thus, judgments the still Commonwealth's § 22.1-82 State)). immune." Cash, for the Magistrate school board to come from funds appropriated The Board does not pay factor, judgments against Virginia school the the State treasury factor, board] treasury [is] State." sufficiently Cash, 242 close to F.3d at 224. it: is necessary to evaluate the Commonwealth of Virginia's relationship additional with Cash its local factors considered an arm of to school boards determine under whether the they three should be degree of the State. B. Degree of Control The first additional control over local factor school boards. is Id. the State's The Board objects to the Magistrate Judge's finding that Virginia exercises little direct control over school boards. Judge referred to the district the result Cole v. court that that boards were duties to title to operate Supp. property. School boards, boards Id. may leads to independent 571 (W.D. Va. contract, Id. the power sue and be (citing Va. to assign sued, Code and hold § 22.1-71). school boards may independently hire attorneys to expenses. systems. as 2d 569, vested with represent themselves and their employees, legal law where the court in Cole found that Virginia school its own members, Additionally, boards 661 F. corporate bodies, real The Magistrate examining Virginia school units of local government." 2009) . For example, at 2-6. Buchanan County School Board, found "county Def.'s Obj . Id. (citing not the State, (citing Va. also Code purchase Va. Code and may pay employees' §§ 22.1-82, 22.1-83). manage the funds § 22.1-89). liability telephone services and credit cards for local school Lastly, insurance, local school contract in their own name, for and set policies for commercial and corporate partnerships. Va. Code §§ 22.1-84, In contrast, exercises Def.'s a at deal 2-6. addressed in Cash. Pub. that the Sch., 666 Supp. found that school general boards than that Maryland of did Virginia's boards. education the North Carolina system 248 n.5 the (4th Defendant (D. North F. Md. Maryland Prince George's Cir. school boards statutes 2003)). more 2012) board 2d In Lewis, closely Carolina, Supp. Therefore, school Virginia school see Lee-Thomas v. 244, sovereign immunity purposes. various local compares opposed to 612-13 262 holding from Cash). over (noting to be an citing Lewis v. Bd. of Educ. of Talbot Cty., State control. Board at 3; F.3d 2d 608, the 22.1-89.4). control conceded agent of the State, 262 F. as Id. Plaintiff of The system to Mairyland's, Cty. (citing the Board argues the Commonwealth of Virginia great Obj . 22.1-89.3, Id. which at 613 the court regulated gave them its more (distinguishing its the district court in Lewis held were Id. that an arm at 614. it of Here, believes the State for the Board cites show that the Commonwealth more closely regulates its school boards than does the State of North Carolina.^ See Def.'s Obj. at 3-6. ^ This includes, inter alia, that Virginia's Board of Education has the vested power to generally supervise the public school system, the control over the accreditation of public schools, and the authority to set guidelines for defining criteria to evaluate the performance of principals and assistant principals. Va. Code §§ 22.1-8, 22.1-19, 22.1-294(B). Although the Commonwealth of Virginia has some control over its local school "retain[] sole Flickinger v. Va. 1992) . where final Sch. This local boards, Bd. control/ Overall, the most decisionmaking of Norfolk, control boards for is are part school authority 799 F. Supp. . 586, in contrast with that under much stronger boards . . 593 (E.D. of Maryland, state financial local school boards in Virginia "have a wide breadth of financial autonomy and independent responsibilities." Cole, 661 F. Supp. 2d at 572. Additionally, school board members must be appointed by the Governor of Maryland, rather than being locally elected or appointed as in Virginia. Supp. 2d at §§ 22.1-35, 613 (citing Md. 22.1-47, 22.1-57.3 Code comprised of local § 3-108); 262 F. Va. Code (setting forth methods localities use to select school board members, commissions Educ. See Lewis, i.e., residents, school board selection appointment by board of county supervisors, or by popular vote). The court agrees with the Magistrate Judge's finding that Virginia exercises little control over its school boards. This finding is in accordance with the reasoning and the decisions in Cash (North Carolina), Cole (Virginia), and Lewis (Maryland). ^ For example, Maryland requires its local school boards to "submit an annual audit conducted by the state," and to receive approval from the State Superintendent before buying, selling, or holding property. Lewis, 262 F. Supp. 2d at 613 (citing Md. Code Educ. §§ 5-113, 4-115). 10 C. The "School second Local vs. additional Board i s Statewide Concerns Cash factor involved with local or analyzes statewide whether the concerns." 242 F.3d at 226. The Board objects to the Magistrate Judge's finding that "Virginia eminently local local." school R&R at boards' 13 particular (citing Cole, concerns 661 F. are Supp. 2d at 572). The Board generally argues that Virginia "has exercised a great concern uniform," adoption that education mentioning, of inter state-wide involvement in throughout alia, Standards determining the of teacher the Commonwealth Commonwealth's Learning ("SOL") qualifications. be recent and Def.'s its Obj. at 6-7.® Although the education Judge the to correctly local such be as Commonwealth does "inconsistent" found school board determining curriculum, that the with the with not permit its Commonwealth setting length of "the methods of teaching[,] employed in the schools." R&R at 13 Additionally, as laws, the locality-level the boards school tasks policies, year, Code § 22.1-79). local voters or local establishes the SOLs, the local school boards implement them. Code § 22.1-253.13:1. ® See supra Part III.B. 11 the and the government to be ®The court notes that while Virginia's Board of Education Va. of Magistrate statutorily (citing Va. previously addressed,® local officials, Id. not (citing the Va. Commonwealth, Code select school board §§ 22.1-47, 22.1-57.3). members. Overall, the Commonwealth sets the standards and then delegates authority to local school boards to choose § 22.1-79.^ Accordingly, Judge's boards finding are that, primarily how the to court agrees in Virginia, local, with enforce the the them. See Va. Code with the Magistrate concerns state of the exercising school limited involvement in some general standards for state-wide education. See R&R a t 13-14. D. State Law's Treatment of the Entity The last Cash entity. 242 Judge's finding factor F.3d at looks 224. that The at how Board objects Virginia law at 7-8. in Kellam S.E.2d 96 (Va. v. sovereign local school not arms of the State. the City of Norfolk, 117 under the purview of not as when at 7. of local school board fell However, Id. Board the Virginia Supreme immunity the Magistrate In Kellam, at 97, 100. apply, the the school board is considered an arm of the School 1960). Court held that a to treats The Board argues that the Supreme Court of Virginia found that a State law characterizes boards as akin to municipal corporations, Def.'s Obj . state sued in a tort claim. 117 S.E.2d the Magistrate Judge found that Kellam did holding only speaks with respect to state tort liability. ^ E.g., supra note 5. 12 to local R&R at 14. school boards Therefore, the Magistrate Judge found the holding to be inapplicable to actions under federal law, F. Supp. such as the claim at hand. 2d at 572 suits against a have the see Cole, 661 (holding that Kellam was inapplicable to bar school board under a claims, on the other hand, not Id.; occasion to federal claim). The Board that the Virginia Supreme Court would address a school board's sovereign immunity with respect to a federal claim. Def.'s Obj. at 7. This objection reflects the additional Cash factor. (4th 1996) "great confusion" Cir. court decision ("Some as determinative."). control to versus local school boards State, as Planning (finding state Amendment, have whether an local Cash, to F.2d be F.3d 334, treated a state analysis 242 F.3d a actor of entities, 456, Md. 460 immunized arms the of its the Nat'l Capital (4th under as "State at 226, not 342 state law characterizes see Ram Pita v. 822 not 101 is overall that Virginia R&R at 13; agency entity governmental Comm'n, Vernon, mistakenly the autonomy," finding is correct. & cases Considering Magistrate Judge's Park See Harter v. surrounding the third Cir. the 1987) Eleventh despite state court's finding of immunity under state law) . IV. In treasury Cash, conclusion, factor, leads to the Magistrate coupled with the conclusion the Judge three that 13 in found that additional Virginia, the State factors local in school boards act as independent local governmental agencies, not as arms of the State for purposes of sovereign immunity. After a de novo review Magistrate of the Judge that Objections, the Board the is court not agrees entitled with to the sovereign immunity or immunized by the Eleventh Amendment. Accordingly, Judge's R&R are the Board's OVERRULED, Objections and the to Magistrate the Magistrate R&R is The Motion to Dismiss hereby ADOPTED AND APPROVED IN FULL. Judge's is DENIED, and the Plaintiff may proceed on the ADEA claims against the Board. The Clerk is DIRECTED to send a copy of this Memorandum Order to counsel for the parties. IT IS SO ORDERED. 1st Rebecca Beach Smith Chief Judge REBECCA BEACH SMITH CHIEF September 6, 2017 14 JUDGE
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
