Drewrey v. Portsmouth Public Schools et al

Filing 41

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)

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,

recommendations for the disposition of the Motion. ECF No. 30.

and

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