Swatzell v. Southeast Missouri State University

Filing 33

MEMORANDUM AND ORDER re: 23 MOTION to Dismiss for Lack of Jurisdiction MOTION to Dismiss Count II MOTION to Strike Plaintiff's Prayer for Relief under Count III filed by Defendant Board of Regents, Southeast Miss ouri State University. IT IS HEREBY ORDERED that Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint 23 is GRANTED. A separate order of dismissal will accompany this Memorandum and Order. Signed by District Judge John A. Ross on 7/21/17. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

LUCINDA SWATZELL,
Plaintiff,
v.
THE BOARD OF REGENTS,
SOUTHEAST MISSOURI STATE
UNIVERSITY
Defendant.

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No. 1:16-CV-00262 JAR

MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motion to Dismiss Plaintiff’s Second
Amended Complaint, or in the alternative, Motion to Dismiss Count II and Strike Plaintiff’s
Prayer for Relief Under Count III (Doc. No. 23). The Motion is fully briefed and ready for
disposition.
I.

Background

Plaintiff Lucinda Swatzell brings this action against Defendant, the Board of Regents of
Southeast Missouri State University, asserting claims of disability discrimination, due process
violations, breach of contract, and retaliation. Plaintiff was a tenured professor at Southeast
Missouri State University from August 2000 until January 14, 2015, when her employment was
terminated based on a student complaint alleging sexual harassment and retaliation (Second
Amended Complaint (“SAC”), Doc. No. 21 at ¶¶ 13, 14, 16-18). Plaintiff suffers from
“schizoaffective disorder,” which causes delusions, hallucinations, depression, periods of manic
mood, impaired communication, and impaired occupational, academic and social functioning
(SAC at ¶ 29). Plaintiff informed her Department Chair of her condition and that she was taking

psychotropic drugs to lessen her symptoms (SAC at ¶ 30). She alleges she was treated differently
after notifying her Department Chair of her medical condition (SAC at ¶ 37).
Defendant conducted an investigation into the student’s complaint, which included
interviewing Plaintiff (SAC at ¶¶ 26, 27). Plaintiff alleges she was unable to respond to questions
relating to the investigation due to her medical condition and because her medication did not
adequately control her condition (SAC at ¶¶ 33, 34). She requested additional time to respond to
the investigation and to retain counsel to assist her with “formulating a coherent response” as
part of a request for accommodation (SAC at ¶ 35), but her request was denied (SAC at ¶ 36).
Plaintiff alleges she was unlawfully denied an accommodation and terminated because of her
disability (SAC at ¶¶ 38-40).
Plaintiff further alleges she was deprived of her property interest in her continued
employment at the University as a tenured professor without due process. Specifically, Plaintiff
contends the Faculty Handbook governs the process due her and other tenured faculty subject to
termination, including the right to adequate prior notice of the proposed disciplinary action, to be
represented by counsel, to present evidence in support of her position, to call supporting
witnesses and cross-examine adverse witnesses, as well as the right to “an unbiased tribunal
decision based on the evidence.” (SAC at ¶¶ 46-60). Plaintiff claims that by failing to follow the
guidelines of the Faculty Handbook, Defendants breached their contractual relationship with her
(SAC at ¶¶ 70-79).
On January 25, 2017, Plaintiff filed a Second Amended Complaint asserting claims of
disability discrimination under the Americans with Disabilities Act of 1990 (ADA) and the
Missouri Human Rights Act (MHRA) (Count I), due process violations (Count II); breach of
contract (Count III); and retaliation (Count IV). Defendant moves to dismiss Plaintiff’s claims

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under Rules 12(b)(1) and 12(b)(6) on the grounds that her claims are barred by Eleventh
Amendment immunity and fail to state a claim. Alternatively, Defendant moves to dismiss Count
II for failure to state a claim and to strike Plaintiff’s prayer for attorney’s fees under Count III.
II.

Legal standard

A motion to dismiss on Eleventh Amendment immunity grounds is a challenge to the
court’s subject matter jurisdiction over the action and governed by Rule 12(b)(1). See Lors v.
Dean, 746 F.3d 857, 861 (8th Cir. 2014); Walls v. Bd. of Regents of Se. Mo. State Univ., No.
1:09CV35 RWS, 2009 WL 2170176, at *1 (E.D. Mo. July 20, 2009). A court has broad authority
to decide its own right to hear a case, and can consider matters outside of the pleadings when
deciding a “factual attack” under Rule 12(b)(1). Osborn v. United States, 918 F.2d 724, 729 n. 6
(8th Cir. 1990); see Ozark Society v. Melcher, 229 F. Supp.2d 896, 902 (E.D. Ark. 2002)
(explaining that a “factual attack” challenges the existence of subject matter jurisdiction in fact,
irrespective of the pleadings). Under a factual attack, it is the plaintiff’s burden to establish that
jurisdiction exists, and “no presumptive truthfulness attaches to the plaintiff’s allegations.”
Osborn, 918 F.2d at 730 (quoting Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891
(3d Cir. 1977)). In other words, the non-moving party does not have the benefit of Rule 12(b)(6)
safeguards in a factual attack. Id. at 729 n. 6. As Defendant has attached and referenced materials
which are outside of the pleadings, the Court will consider Defendant’s motion to be a factual
attack on Plaintiff’s complaint. See Shipley v. Interstate Collections Unit, No. 11-675-CV-WFJG, 2011 WL 6256967, at *2 (W.D. Mo. Dec. 14, 2011).
III.

Discussion

The Eleventh Amendment provides that states are immune from suit in federal court,
unless the state has consented to be sued, or Congress has abrogated the state’s immunity by

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some express statutory provision. 1 Raymond v. Bd. of Regents of Univ. of Minn., 140 F. Supp.
3d 807, 813 (D. Minn. 2015), aff’d sub nom. Raymond v. Bd. of Regents of the Univ. of Minn.,
847 F.3d 585 (8th Cir. 2017) (citing Will v. Mich. Dep’t. of State Police, 491 U.S. 58, 66-67
(1989)); Egerdahl v. Hibbing Cmty. Coll., 72 F. 3d 615, 619 (8th Cir. 1995)). Eleventh
Amendment immunity applies with equal force to pendent state law claims. Pennhurst State
School & Hosp. v. Halderman, 465 U.S. 89, 121 (1984), superseded by statute on other grounds.
There are three exceptions to Eleventh Amendment immunity: (1) where the state waives
immunity by consenting to suit in federal court; (2) where Congress abrogates the state’s
immunity through valid exercise of its powers; and (3) under Ex parte Young, 209 U.S. 123
(1908), where the plaintiff files suit against state officials seeking prospective equitable relief for
ongoing violations of federal law. Keselyak v. Curators of the University of Missouri, 200 F.
Supp. 3d 849, 854 (W.D. Mo. 2016) (citing Sundquist v. Nebraska, 122 F. Supp. 3d 876 (D. Neb.
2015)).
“The Eleventh Amendment encompasses not only actions where the state is actually
named as a defendant, but also certain actions against state instrumentalities.” Id. (quoting
Becker v. Univ. of Nebraska at Omaha, 191 F.3d 904, 908 (8th Cir. 1999)). In accordance with
this principle, the Eighth Circuit has stated that “State universities and colleges almost always
1

The Eleventh Amendment provides:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State. U.S. Const. amend. XI.
Although on its face the Eleventh Amendment applies only to actions brought by citizens of other states,
the Supreme Court has interpreted it to bar actions in federal court by a state’s own citizens. See Hans v.
Louisiana, 134 U.S. 1, 15 (1890); Cardoso v. Bd. of Regents of the Univ. of Minnesota, 205 F. Supp. 3d
1046, 1049 (D. Minn. 2016)

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enjoy Eleventh Amendment immunity.” Id. (quoting Hadley v. N. Arkansas Cmty. Tech. Coll.,
76 F.3d 1437, 1438 (8th Cir. 1996)). Whether a university actually enjoys Eleventh Amendment
protection, however, must be determined on a case-by-case basis. Sherman v. Curators of Univ.
of Mo., 16 F.3d 860, 863 (8th Cir. 1994) (citing Greenwood v. Ross, 778 F.2d 448, 453 (8th Cir.
1985)). To make this determination, a court must examine the amount of the university’s local
autonomy and control, and most importantly, whether any judgment rendered against the
university would ultimately be paid out of state funds. Id. (quoting Laje v. R.E. Thomason Gen.
Hosp., 665 F. 2d 724, 727 (5th Cir. 1982)).
Defendant asserts it lacks sufficient autonomy from the state (Doc. No. 24 at 3-5). The
Missouri Legislature created Southeast Missouri State University, see RSMo. § 174.020, and
requires it to submit to detailed reporting procedures. In particular, the University must make an
annual report to the Missouri Department of Higher Education of “all receipts of moneys from
appropriations, incidental fees, and all other sources, and the disbursements thereof, and for what
purposes, and the condition of said college.” RSMo. § 174.170. The Missouri Legislature has
defined standards by which the University may remove its presidents and faculty, RSMo. §
174.150, and restricts the University’s ability to independently appoint its own Board of Regents,
RSMo. § 174.060. Based on an identical record, the University’s sister school, Central Missouri
State University, was found to lack sufficient autonomy from the state.” Canada v. Thomas, 915
F. Supp. 145, 148 (W.D. Mo. 1996) (“In light of the state’s continuous attention to CMSU’s
affairs, CMSU’s dependence on state funding, and the control held by the state’s Governor, this
Court finds that CMSU does not enjoy a significant level of autonomy from the state.”). The
Court concurs in Canada’s reasoning and likewise finds that Defendant lacks sufficient
autonomy from the state.

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Defendant further asserts that a money judgment against it would ultimately be paid by
the State treasury because the Missouri Legislature is required by Article IX sec. 9(b) of the
Missouri Constitution to financially maintain the state universities. (Doc. No. 24 at 5-6).
Defendant argues that a payment of any judgment against the University would decrease its
financial resources and increase its budgetary requests to the General Assembly, which must be
paid by the Missouri treasury. Thus, a judgment against the University would ultimately be paid
from state funds. (Id.) In support of its motion, Defendant has filed an affidavit of the Vice
President of Finance and Administration at Southeast Missouri State University (Affidavit of
Kathy Mangels (“Mangels Aff.”), Doc. No. 27-1), who states that the University received
approximately 41% of its general operating budget for the 2015-16 fiscal year from State
appropriations and is “fundamentally dependent” upon the State of Missouri for its core
operating expenses (Id. at ¶¶ 5, 6). Further, the University is covered by the State Legal Expense
Fund established pursuant to RSMo. § 105.711, which consists of moneys appropriated to the
Fund by the Missouri State General Assembly. The statute provides coverage to the University
for any claim or final judgment rendered against it. Because such claims are paid directly from
the Fund, “any judgment rendered against the University will necessarily affect the State
Treasury.” (Id. at ¶¶ 7-10). In light of this unrebutted affidavit, the Court finds that a judgment
against Defendant would affect the state treasury. See Canada, 915 F. Supp. at 148. Therefore,
unless an exception applies, Plaintiff’s claims against Defendant are barred by Eleventh
Amendment immunity.
As set forth above, there are three possible exceptions to Eleventh Amendment
immunity: (i) waiver or consent to suit by the state; (ii) valid abrogation by Congress; or (iii) the
state’s amenability to suit under the Ex parte Young doctrine. Keselyak, 200 F. Supp. 3d at 854.

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To the extent Plaintiff argues Defendant waived its immunity and submitted itself to the
jurisdiction of this Court by filing an amended answer noting that the Board of Regents,
Southeast Missouri State University, not the University itself, was the proper defendant (Doc.
No. 31 at 6), the Eighth Circuit has rejected such an argument. Id. 855 n.4 (citing Skelton v.
Henry, 390 F.3d 614, 618 (8th Cir. 2004); Fromm v. Comm’n of Veterans Affairs, 220 F. 3d
887, 890 (8th Cir. 2000)). The Ex parte Young doctrine does not apply here because Plaintiff has
not sued a state employee acting in his or her official capacity. Keselyak, 200 F. Supp. 3d at 856.
Federal claims
With respect to abrogation, the Supreme Court has already established that claims against
states and their agencies for employment discrimination (Title I) under the ADA are barred by
Eleventh Amendment immunity. Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 360
(2001). 2 In Count I of her complaint, Plaintiff alleges she was unlawfully denied an
accommodation and terminated because of her disability (SAC at ¶¶ 35-40). Plaintiff argues she
does not specify whether her claims are brought under Title I or Title II of the ADA, and that in
the event the Court determines she cannot maintain her action under Title I, a claim under Title II
remains viable (Doc. No. 31 at 6). 3
The Eighth Circuit has not decided whether Title II applies to employment discrimination
cases filed against public employers, and the circuits that have addressed this question are split.
Bradley v. Little Rock Wastewater Util., 517 F. App’x 530, 533 (8th Cir. 2013) (citing Garrett,

2

Title I of the ADA prohibits an employer from discriminating “against a qualified individual on the
basis of disability in regard to job application procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms, conditions, and privileges of
employment.” 42 U.S.C. § 12112(a).
3

Title II of the ADA prohibits discrimination in access to or participation in services, programs, or
activities of a public entity. 42 U.S.C. § 12132.

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531 U.S. at 360 n. 1 (2001) (noting, without resolving, the circuit split); Zimmerman v. Or. Dep’t
of Justice, 170 F.3d 1169, 1178 (9th Cir. 1999) (holding that Title II does not state a cause of
action for employment discrimination); Bledsoe v. Palm Beach Cnty. Soil & Water Conservation
Dist., 133 F.3d 816, 825 (11th Cir. 1998) (holding that Title II does state a cause of action for
employment discrimination)). Even construing Plaintiff’s claim as one under Title II, however,
the Supreme Court has recognized only two specific areas where Title II validly abrogates
sovereign immunity, namely: (1) suits which implicate the right of access to court proceedings,
Tennessee v. Lane, 541 U.S. 509, 531, 533-34 (2004); and, more broadly, (2) suits which address
conduct that is in itself unconstitutional, U.S. v. Georgia, 546 U.S. 151, 157-58 (2006) 4, neither
of which are implicated here.
Plaintiff further alleges Defendant retaliated against her opposition to their discriminatory
conduct by terminating her in violation of Title VII (FAC at ¶¶ 85-87). Title VII makes it
unlawful for an employer to discriminate against an employee based on race, color, religion, sex,
or national origin. 42 U.S.C. § 2000e-3(a). Discrimination against an individual with a disability
is not actionable under Title VII. Id. For that reason, a claim of retaliation in connection with
disability discrimination cannot be brought under Title VII. Morr v. Missouri Dep’t of Mental
Health, No. 4:08CV359 RWS, 2009 WL 1140108, at *6 (E.D. Mo. Apr. 28, 2009) (citing Miles
v. University of Arkansas System, 2008 WL 1781098, *4 (E.D. Ark. April 16, 2008)).

4

In Georgia, the Court considered the claims of a disabled inmate who alleged he was denied
accommodation during his imprisonment by the state. Georgia, 546 U.S. at 154-55. The inmate claimed
the conditions of his confinement violated not only the ADA, but also his eighth amendment right to be
free from cruel and unusual punishment (a right made applicable to the states by the due process clause of
the fourteenth amendment). The Supreme Court said there was no doubt that Congress can abrogate
sovereign immunity for conduct that actually violates the fourteenth amendment. Id.

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To the extent Plaintiff is alleging an ADA retaliation claim under Title V 5, the Court
notes that neither the Supreme Court nor the Eighth Circuit has decided whether Title V
abrogates a state’s Eleventh Amendment immunity. Lors, 746 F.3d at 862-63. However,
numerous courts have interpreted the Supreme Court’s holding in Garrett as necessarily applying
to retaliation claims premised on employment discrimination under Title I of the ADA. See Levy
v. Kan. Dep’t of Soc. & Rehab. Servs., 789 F.3d 1164, 1169 (10th Cir. 2015); Demshki v.
Monteith, 255 F.3d 986, 988–89 (9th Cir. 2001); see also Reed v. College of the Ouachitas, No.
6:11–CV–6020, 2012 WL 1409772, *5 (W.D. Ark. April 23, 2012) (noting that Supreme Court
precedent supports a conclusion that Congress may not abrogate the states’ Eleventh Amendment
immunity from claims brought pursuant to Title V of the ADA); Morr, 2009 WL 1140108 at *4
(finding Title V claim for damages barred by the Eleventh Amendment). Although Plaintiff’s
complaint is unclear, it appears that her claim of retaliation is based on actions she took to
oppose an alleged violation of Title I of the ADA, namely, the alleged failure to accommodate
her disability. The Court concurs in the rulings of these courts that retaliation claims brought
under Title V of the ADA – at least where the claims are based on alleged violations of Title I –
are barred by the Eleventh Amendment. Certainly, Plaintiff has made no argument that the Court
should treat her two ADA claims differently for purposes of its Eleventh Amendment immunity
analysis.
State law claims
As previously discussed, the Eleventh Amendment bars federal court actions against a
state or its agencies unless the state waives its immunity or Congress abrogates it. Will, 491 U.S.
at 63. A state “is deemed to have waived its immunity only where stated by the most express
5

Title V of the ADA defines explicit restrictions against retaliation or coercion against anyone with a
disability who exerts their civil rights. 42 U.S.C. § 12203(a).

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language or by such overwhelming implication from the text as will leave no room for any other
reasonable construction.” Cooper v. St. Cloud State University, 226 F.3d 964, 968-69 (8th Cir.
2000) (quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985)). With respect to
Plaintiff’s state law claim under the MHRA, neither her complaint nor her response to
Defendant’s motion to dismiss points to any statute which shows that Missouri clearly waived its
immunity to be sued in federal court on this claim. Although the MHRA provides for actions in
Missouri circuit courts, the statute does not authorize actions in federal court. Coller v. State of
Mo., Dep’t of Econ. Dev., 965 F. Supp. 1270, 1274 (W.D. Mo. 1997); Mo. Rev. Stat. §
213.111.1. See also Cardoso v. Bd. of Regents of the Univ. of Minnesota, 205 F. Supp. 3d 1046
(D. Minn. 2016) (holding Eleventh Amendment barred former employee’s action against
university’s board of regents alleging that non-renewal of his contract violated Minnesota
Human Rights Act (MHRA)); Cooper, 226 F.3d at 968 (affirming dismissal of state Human
Rights Act claim as the defendant university was immune from suit in federal court).
As for Plaintiff’s breach of contract claim, the Court agrees with Defendant that Plaintiff
confuses state sovereign immunity with Eleventh Amendment immunity. Under controlling
Eighth Circuit precedent, a state’s general waiver of sovereign immunity from litigation in state
court is insufficient to waive Eleventh Amendment immunity from litigation in federal court;
“the state must specify an intent to subject itself to federal court jurisdiction.” Santee Sioux Tribe
of Neb. v. Nebraska, 121 F.3d 427, 431 (8th Cir. 1997); Cooper, 226 F.3d at 968–69; see also
Alexander v. University of Arkansas, 116 F.3d 480 (8th Cir. 1997) (affirming dismissal of
breach of contract action, finding the state was the real party in interest for Eleventh Amendment
purposes).

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Because none of the exceptions to Eleventh Amendment immunity apply, the Court
concludes that Plaintiff’s federal and state law claims are barred by Eleventh Amendment
immunity and the Court lacks jurisdiction to hear them.
Alternative motion to dismiss
Defendant argues in the alternative that Plaintiff’s due process claim fails as a matter of
law because she received notice of the charges against her and an opportunity to respond, which
is all that due process requires prior to termination of a public employee with a property interest
in their job. (Doc. No. 24 at 10-11) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
546 (1985)).
Procedural due process claims require a two-step analysis. First, a plaintiff must prove
that as a result of state action, the plaintiff was deprived of some life, liberty, or property interest.
Second, the plaintiff must prove that the state’s deprivation of that interest was done without due
process. Krentz v. Robertson Fire Prot. Dist., 228 F.3d 897, 902 (8th Cir. 2000). Here, Defendant
appears to concede that Plaintiff has a property interest in her job; therefore, the only issue is
whether she received the process that was due in connection with her termination. Riggins v.
Board of Regents of the Univ. of Nebraska, 790 F.2d 707, 710 (8th Cir. 1986).
In her complaint, Plaintiff alleges Defendant deprived her of her property interest without
due process of law by failing to afford her the process and procedures set forth in the
University’s Faculty Handbook. Plaintiff’s argument is unavailing. In De Llano v. Berglund, 282
F.3d 1031 (8th Cir. 2002), the plaintiff asserted a § 1983 due process claim against university
administrators alleging his termination as a tenured professor violated the University’s internal
procedures were violated. The Court rejected this argument “because federal law, not state law or
[university] policy, determines what constitutes adequate procedural due process.” Id. at 1035.

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Moreover, here, Plaintiff’s complaint that she was not afforded the opportunity to, inter alia, call
supporting witnesses and cross-examine adverse witnesses, is unavailing because this type of
formal process is not required prior to termination. See Raymond v. Board of Regents of
University of Minn., 847 F.3d 585, 590 (8th Cir. 2017). In sum, Plaintiff’s allegations, taken as
true from her amended complaint, fail to state a claim for a pre-termination due process
violation.
As for Plaintiff’s prayer for attorney’s fees under Count III (breach of contract), in
Missouri, under the traditional American rule, “parties must ordinarily bear their own attorneys’
fees.” Avante Intern. Technology, Inc. v. Sequoia Voting Systems, Inc., No. 4:10-CV-00799
AGF, 2011 WL 839631, *5 (E.D. Mo. Mar. 7, 2011) (quoting Alyeska Pipeline Serv. Co. v.
Widerness Soc’y, 421 U.S. 240, 247 (1975). Attorney’s fees are not recoverable from another
party in a breach of contract action, except when allowed by contract or statute. Trim Fit, LLC v.
Dickey, 607 F.3d 528, 532 (8th Cir. 2010) (citing Essex Contracting, Inc. v. Jefferson County,
277 S.W.3d 647, 657 (Mo. banc 2009)); see also Soto v. Midstates Millwork, Inc., 786 S.W.2d
229, 232 (Mo. Ct. App. 1990) (citing Williams v. Gulf Coast Collection Agency Co., 493
S.W.2d 367, 370 (Mo. Ct. App. 1973)). Plaintiff has not alleged any exception to the general rule
that parties bear their own attorney’s fees and thus fails to state a claim for attorney’s fees.
IV.

Conclusion

For these reasons, Defendant’s motion to dismiss will be granted.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss Plaintiff’s Second
Amended Complaint [23] is GRANTED.
A separate order of dismissal will accompany this Memorandum and Order.

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Dated this 21st day of July, 2017.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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