Grace et al v. Sparks et al

Filing 154

MEMORANDUM OPINION AND ORDER granting the Mingo County Board of Education's 120 MOTION for Summary Judgment; granting Jay Lockard's 114 MOTION for Summary Judgment. Signed by Judge John T. Copenhaver, Jr. on 5/4/2016. (cc: counsel of record; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
TINA M. GRACE and
LARRY GRACE,
Plaintiffs,
v.

Civil Action No.: 2:15-01505
(Lead action)

C. MICHAEL SPARKS and
MICHAEL THORNSBURY and
JAY LOCKARD, individually and in
their (former) official capacity, and
THE WEST VIRGINIA SUPREME COURT OF APPEALS and
STEVEN D. CANTERBURY, its administrator, and
THE MINGO COUNTY COMMISSION, together with its
present (and former) commissioner(s) and
in their (his) official capacity, and
GREG SMITH and JOHN MARK HUBBARD and
DIANE HANNAH and DAVID L. BAISDEN and
MINGO COUNTY BOARD OF EDUCATION,
Defendants.

TINA M. GRACE and
LARRY GRACE,
Plaintiffs,
v.

Civil Action No.: 2:15-00281

C. MICHAEL SPARKS and
MICHAEL THORNSBURY and
JAY LOCKARD, individually and in
their (former) official capacity, and
THE WEST VIRGINIA SUPREME COURT OF APPEALS and
STEVEN D. CANTERBURY, its administrator, and
THE MINGO COUNTY COMMISSION and
MINGO COUNTY COMMISSIONERS,
in their official capacity,
Defendants.

MEMORANDUM OPINION AND ORDER

Pending are separate motions for summary judgment
filed by defendants Jay Lockard and the Mingo County Board of
Education on January 4, 2016.

I.

Factual and Procedural Background

The plaintiffs’ allegations in this consolidated
action are set forth in detail in the court’s order granting the
motions to dismiss of four of the former defendants,1 entered on
November 19, 2015.

(ECF No. 105).

The plaintiffs’ claims all

relate to events in late 2011 and early 2012, during which time
plaintiff Tina Grace (“Grace”) was investigated, criminally
charged, and terminated from her employment as a special
education teacher based on allegations that she had abused
children in the class in which she taught.

The criminal charges

against Grace were dropped as part of a deferred prosecution
agreement and ultimately expunged.

The following discussion

focuses on the facts relevant to the plaintiffs’ claims against
the movant defendants, Jay Lockard and the Mingo County Board of

1

The court’s previous order dismissed claims against defendants
C. Michael Sparks, Michael Thornsbury, the West Virginia Supreme
Court of Appeals, and Steven D. Canterbury.
2

Education (hereinafter “the Board” or “BOE”).

On September 23, 2011, a physical therapist working at
Riverside Elementary met with A.J. Parker, the Director of
Special Education in Mingo County, to report several incidents
of alleged child abuse by Grace, including slapping a student on
the bare buttocks and withholding lunch from a student.

Parker

reported the allegations to Randy Keathley, Superintendent of
Mingo County Schools, and the West Virginia Department of Health
and Human Resources (“DHHR”).

Over the next several days,

Parker conducted an investigation into the abuse allegations.
(See BOE Ex. A, ECF No. 128-1 at 1).

The investigation revealed

details about prior incidents involving Grace’s conduct in
disciplining students.

These earlier incidents included using

hot sauce to discipline a child and using a device known as the
“Turtle Stander” as an inappropriate form of punishment.

Grace was suspended with pay from her teaching
position on September 26, 2011, pending the completion of DHHR’s
investigation into the allegations against her.

She was

notified of the suspension by a letter from Superintendent
Keathley, which informed her of the investigation process and
her right to be heard by the Board before action was taken on

3

any further recommendations made by Keathley.

(BOE Ex. B, ECF

No. 128-1 at 9).

On December 5, 2011, DHHR issued the report of its
investigation into the allegations of abuse by Grace.
D, ECF No. 128-1 at 14).

(BOE Ex.

After extensive discussion of the

investigation, witness statements, and related documentation,
the report concluded: “A. Finding(s): Child Abuse has occurred.”
Id. at 28.

After DHHR and the Board completed their

investigations, Grace was invited, through her counsel, to
attend a meeting with Superintendent Keathley to discuss the
findings.

After that meeting, Keathley recommended that Grace’s

employment with the Mingo County Schools be terminated.
disciplinary hearing was held on January 6, 2012.

A pre-

At the

hearing, Grace testified on her own behalf and admitted several
of the incidents underlying the DHHR’s findings had occurred.
(BOE Ex. G, ECF No. 128-2, 128-3 & 128-4).

On February 23,

2012, the hearing officer issued her recommended decision,
finding that the Board had met its burden to demonstrate Grace
was “guilty of child abuse and other misconduct, amounting to
cruelty, immorality and insubordination under W. Va. Code § 18A2-8.”

(BOE Ex. H, ECF No. 128-5 at 12).

On March 19, 2012,

Keathley sent a letter to Grace informing her that the Board had
4

ratified her suspension and adopted the recommendation to
terminate her employment.

(BOE Ex. I, ECF No. 128-5 at 15).

Following her termination, Grace exercised her right to file a
Level Three grievance appealing the Board’s decision.

A hearing

on her grievance was scheduled for August 22, 2012.

During the Mingo County Grand Jury’s April 2012 term,
county prosecutor Michael C. Sparks presented battery and child
abuse complaints against Grace to the grand jury.

The grand

jury indicted Grace on a misdemeanor count of battery and two
felony counts of child abuse.

Defendant Jay Lockard served as

the foreman of the grand jury that indicted Grace.

At all

relevant times, Lockard has also been employed by Mingo County
as a Computer Systems Administrator.

The criminal charges

against Grace were dropped pursuant to a Pretrial Disposition
Agreement between Grace and the prosecutor, and subsequently
expunged.

As part of the agreement, Grace agreed to withdraw

her grievance challenging the Board’s decision to terminate her
employment.

Plaintiffs advance two claims against the Board.
First, they allege due process and equal protection violations
pursuant to 42 U.S.C. § 1983.

Second, they allege that the

5

Board breached its employment contract with Grace.

The Board

seeks summary judgment based on qualified immunity and the
applicable statute of limitations.

The Board also argues that

because it was under state control at the time of the relevant
events, it cannot be held liable for the plaintiffs’ claims.

In their claims against Lockard, plaintiffs allege
that his service on the grand jury violated W. Va. Code § 52-18(d), which disqualifies a prospective juror who is “an
officeholder under the laws of the United States or of this
State” from serving on a jury.

Plaintiffs claim that Lockard’s

improper jury service, and potential bias, infringed on Grace’s
constitutional rights.

Plaintiffs also allege that Lockard met

in secret with the judge, the county prosecutor, and a county
commissioner to discuss Grace’s case prior to its presentation
to the grand jury.

Plaintiffs claim that this meeting violated

Grace’s constitutional rights and point to the meeting to
support various state law claims against Lockard.

In his motion for summary judgment, Lockard argues
that plaintiffs’ claims fail because as a computer systems
administrator, he is not an “officeholder” and was not
disqualified from serving on a grand jury.

6

Lockard also argues

that plaintiffs have not produced any evidence suggesting that
the alleged secret meeting prior to Grace’s indictment actually
took place.

II.

Summary Judgment Standard

Summary judgment is appropriate only “if the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).

“Material” facts are those necessary to

establish the elements of a party’s cause of action.

Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also News
& Observer Publ’g Co. v. Raleigh-Durham Airport Auth., 597 F.3d
570, 576 (4th Cir. 2010) (same).

A “genuine” dispute of

material fact exists if, in viewing the record and all
reasonable inferences drawn therefrom in a light most favorable
to the non-moving party, a reasonable fact-finder could return a
verdict for the non-movant.

Anderson, 477 U.S. at 248.

On the

other hand, “[f]actual disputes that are irrelevant or
unnecessary will not be counted.”

Id.

The moving party has the initial burden of showing -“that is, pointing out to the district court -- that there is an

7

absence of evidence to support the non-moving party’s case.”
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

If the

moving party satisfies this burden, then the non-moving party
must set forth specific facts, admissible in evidence, that
demonstrate the existence of a genuine issue of material fact
for trial.

See id. at 322-23; Fed. R. Civ. P. 56(c), (e).
When examining the record, the court must neither

resolve disputes of material fact nor weigh the evidence,
Russell v. Microdyne Corp., 65 F.3d 1229, 1239 (4th Cir. 1995),
nor make determinations of credibility, Sosebee v. Murphy, 797
F.2d 179, 182 (4th Cir. 1986).

Instead, the party opposing the

motion is entitled to have his or her version of the facts
accepted as true and, moreover, to have all internal conflicts
resolved in his or her favor.

Charbonnages de France v. Smith,

597 F.2d 406, 414 (4th Cir. 1979).

Along those lines,

inferences that are “drawn from the underlying facts . . . must
be viewed in the light most favorable to the party opposing the
motion.”

United States v. Diebold, Inc., 369 U.S. 654, 655

(1962).
At bottom, a party is entitled to summary judgment if
the record as a whole could not lead a rational trier of fact to
find for the non-moving party.

Williams v. Griffin, 952 F.2d
8

820, 823 (4th Cir. 1991).

Conversely, summary judgment is

inappropriate if the evidence is sufficient for a reasonable
fact-finder to return a verdict in favor of the non-moving
party.

Anderson, 477 U.S. at 248.

III. Discussion

With the preceding standard in mind, the court
addresses the separate motions for summary judgment brought by
the Board and by defendant Lockard.

A.

Claims against the Mingo County Board of Education

The Board is named as a defendant in two counts of the
plaintiffs’ fifteen-count complaint.

In Count Thirteen,

plaintiffs allege the Board breached its contract with Grace
when it terminated her employment.

In Count Fourteen,

plaintiffs allege constitutional violations under 42 U.S.C. §
1983.

In their response to the Board’s summary judgment
motion, plaintiffs concede that the § 1983 claim alleged in
Count Fourteen is barred by the applicable two-year statute of
limitations.

This claim fails as a matter of law because all

9

relevant conduct alleged in the complaint occurred more than two
years prior to the filing of the complaint on February 5, 2015.
Accordingly, the court will grant summary judgment in favor of
the Board on the § 1983 claim.

The Board argues that the plaintiffs’ breach of
contract claim also fails because the Board is entitled to
qualified immunity from suit based on its governmental actions.
When a plaintiff brings claims based on governmental acts or
omissions which fall within a broad category of “discretionary
functions,” qualified immunity attaches unless the plaintiff
affirmatively demonstrates “that such acts or omissions are in
violation of clearly established statutory or constitutional
rights or laws of which a reasonable person would have known or
are otherwise fraudulent, malicious or oppressive.”

West

Virginia Regional Jail and Correctional Facility Authority v.
A.B., 234 W. Va. 492, 507 (2014) (citing State v. Chase
Securities, Inc., 188 W.Va. 356 (1992)).

The West Virginia Supreme Court of Appeals has
repeatedly held that “the broad categories of training,
supervision, and employee retention . . . easily fall within the
category of ‘discretionary’ governmental functions.”

10

West

Virginia Board of Education v. Marple, 783 S.E.2d 75, 83-84
(2015) (quoting A.B., 234 W. Va. at 514) (emphasis omitted).
Accordingly, the decision to terminate Grace’s employment was a
discretionary function and is shielded by qualified immunity
unless: 1) the Board acted fraudulently, maliciously or
oppressively or 2) the Board’s decision violated one of Grace’s
clearly-established constitutional or statutory rights.

As

Grace has not argued that the Board acted fraudulently,
maliciously, or oppressively, the application of immunity turns
on whether the Board’s actions violated a clearly-established
right.

To determine whether a clearly-established right has
been violated, the court first identifies the statutory or
constitutional right, if any, which was allegedly violated by
the defendant.

Once a right is identified, the court can

proceed to inquire whether it was clearly established at the
relevant time.

See Maston v. Wagner, 236 W. Va. 488 (2015)

(discussing the “two-part approach” to qualified immunity
questions); cf. Pearson v. Callahan, 555 U.S. 223, 242 (2009)
(noting that while it is usually correct to begin by identifying
the right at issue, the order of inquiry can be reversed where
it “will best facilitate the fair and efficient disposition of
11

[the] case”).

Plaintiffs argue Grace’s teaching contract constituted
valuable property under West Virginia law, and that the Board’s
“selective generation of vague and non-existent findings of
child abuse” deprived Grace of that property in violation of the
right to due process guaranteed by the Fourteenth Amendment.
(ECF No. 126 at 5).

In particular, they complain that the

Board’s investigation was improper because 1) several of the
alleged abuse incidents involving Grace had been previously
investigated with no finding of fault on her part, 2) the Board
did not report the allegations of abuse to DHHR during the
statutory period required by W. Va. Code § 49-6A-2, 3) Grace
never received a pre-termination notice and opportunity to
respond to the allegations, and 4) Grace was never questioned by
Parker, Director of Special Education, during his investigation
on behalf of the Board.

The Supreme Court has recognized a property interest
in continued public employment in some contexts.

See e.g.,

Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985).
In Loudermill, the Court held that to satisfy due process, a
public employee “is entitled to oral or written notice of the

12

charges against him [or her], an explanation of the employer’s
evidence, and an opportunity to present his [or her] side of the
story.”

Id. at 546.

This list is an “exhaustive” description

of the process due before dismissal.

Curtis v. Montgomery

County Public Schools, 242 Fed. Appx. 109, 111 (4th Cir. 2007)
(unpublished).

The court assumes for these purposes that Grace had a
protected property interest in her employment as a special
education teacher.

However, none of the plaintiffs’ complaints

with the manner in which the Board handled its investigation and
termination of Grace’s employment are sufficient to support a
due process claim.

Plaintiffs allege that some of the behavior

based on which Grace was fired had been previously investigated,
but they do not explain how the existence of these prior
investigations rendered the later investigation unreasonable in
light of the fact that a new report had been made raising
questions about Grace’s actions.

Similarly, plaintiffs do not explain how the failure
of county officials to timely notify DHHR of abuse allegations
as required by state statute could have affected Grace’s
constitutional rights.

Plaintiffs argue only that the failure

13

to timely report any suspected abuse “goes to the weight of the
evidence” and means that “[no abuse] ever occurred.”
126 at 6).

(ECF No.

With respect to the adequacy of pre-termination

notice, plaintiffs do not point to any particular deficiency
with the letters Grace received informing her of the basis for
her suspension or of her rights during the investigation
process.

Grace was represented by counsel during the time of

her suspension and at the pre-termination hearing at which she
had the opportunity to contest the allegations against her.
While plaintiffs complain that Parker never interviewed Grace as
part of his internal investigation, they overlook the fact that
Grace was interviewed as part of the DHHR investigation and
testified on her own behalf at the hearing.

Given all of these

facts, there is no genuine issue of material fact as to whether
Grace received notice and a hearing prior to her termination,
assuming such was the process due her.

In actuality, most of plaintiffs’ objections to the
process Grace received prior to termination appear to be belated
challenges to the substantive finding of the DHHR report and the
hearing officer that Grace abused her students.

To the extent a

dispute about whether abuse occurred is material to her due
process rights, plaintiffs have completely failed to support
14

their position with competent evidence.

At summary judgment,

plaintiffs may not rely on the bare allegations of their
complaint and briefs, in which they repeatedly suggest that
improper motives on the part of school officials, rather than
any actual abuse, led to Grace’s termination.

The Board has

produced evidence in the form of the DHHR investigation and the
transcript of Grace’s pre-termination hearing, both of which
provide a reasonable basis for Grace’s termination based on the
abusive conduct discussed therein.

While plaintiffs may

disagree with the conclusion that Grace’s actions constituted
child abuse, their burden at this stage was to properly support
their position that Grace was deprived of due process, as
required by Rule 56.

Because Grace received the notice, hearing, and
opportunity to be heard guaranteed by due process, there is no
genuine issue of material fact in dispute as to whether her
constitutional rights were violated.

As a result, the Board is

entitled to qualified immunity with respect to the plaintiffs’
breach of contract claim based on Grace’s termination.2

2

Because the court concludes the Board is immune from suit, it
need not reach the Board’s additional argument that due to state
control of the county education system during the relevant
period, the Board is not liable for employment decisions such as
15

B.

Claims against Jay Lockard

While the plaintiffs have pled a number of claims
against Lockard, including a § 1983 claim and state tort claims,
they admit that all of their claims are premised on two factual
allegations.

First, plaintiffs claim that Lockard’s service on

the grand jury that indicted Grace was prohibited by statute and
therefore “deprived Tina Grace of her constitutional rights and
amounted to the other actionable conduct the plaintiffs have
alleged against him.”

Pls.’ Resp. in Opp. (ECF No. 125 at 4).

Second, they allege that Lockard met in secret with the county
prosecutor, circuit judge, and a county commissioner prior to
the grand jury’s consideration of the indictment.

Plaintiffs

argue that this meeting undermined the secrecy of the grand jury
proceedings and violated Grace’s rights.

West Virginia Code § 52-1-8(d) disqualifies from jury
service a prospective juror who is an “officeholder” under the
laws of the United States or of West Virginia.

As a computer

systems administrator, Lockard is an employee of the county but
is not an officeholder subject to disqualification for jury

Grace’s termination.
16

service.

The West Virginia Supreme Court of Appeals has

described the test to determine whether an individual is an
officer or a mere employee as follows:
[A]s a general rule it may be stated that a position is
a public office when it is created by law, with duties
cast on the incumbent which involve an exercise of some
portion of the sovereign power and in the performance of
which the public is concerned, and which are continuing
in their nature and not occasional or intermittent. But
one who merely performs the duties required of him by
persons employing him under an express or implied
contract, though such persons themselves be public
officers, and though the employment be in or about public
work or business, is a mere employee.
State ex rel West Virginia Citizens Action Group v. West
Virginia Economic Development Grant Committee, 213 W. Va. 255,
268 (2003) (quoting State ex rel. Key v. Bond, 94 W. Va. 255,
261 (1923)) (emphasis omitted).

There has been no suggestion that Lockard’s position
as a computer systems administrator was created by law, or that
he exercised in that position any degree of sovereign power.
Nor was any bond or oath required of Lockard as a condition of
his employment, both of which are factors courts consider in
evaluating whether a position is a public office.

17

Id.

For

these reasons, it is clear that Lockard was a public employee
but not an officer of the state.3

Because Lockard was not disqualified from serving on
the grand jury, the only remaining question relates to the
alleged secret meeting between Lockard and other individuals
prior to Grace’s indictment.

Lockard stated in his affidavit

supporting summary judgment that this meeting did not occur.
(Lockard Ex. A, ECF No. 116 at 2).

David Baisden, the

commissioner allegedly present at the meeting, similarly stated
in a sworn affidavit that no such meeting occurred.
Ex. E, ECF No. 117 at 14).

(Lockard

Grace testified at her deposition

that she believes this meeting took place because she “received
a phone call from [her friend] Hester Keatley stating that there
had -- someone had told her that there had been a meeting
between Mr. Sparks, Mr. Thornsbury, Jay Lockard, David Baisden,

3

In their opposition to summary judgment, plaintiffs suggest for
the first time that even if Lockard is found to be an employee
not an officer, his service was improper because the county had
a practice of appointing employees or officers as jurors which
deprived Grace of her right to a representative jury.
Plaintiffs provide no factual support for this position other
than the allegation that a previous grand jury foreman had been
disqualified as an officeholder. Without more, the allegation
that a single previous juror was disqualified does not raise a
material issue with respect to Lockard’s service meriting any
further discussion.
18

and Jarrett Fletcher regarding what to do about [Grace’s] case.”
(Lockard Ex. B, ECF No. 116 at 5).

Keatley, at her own

deposition, explained that she learned about the status of
Grace’s case while visiting Baisden’s office to inquire about
the status of a criminal case against her son.
ECF No. 117 at 2).

(Lockard Ex. C,

According to Keatley, Baisden told her he

would look into her son’s case, left his office, then returned a
few minutes later and told her that both her son and Grace would
be charged with battery.

Id. at 6.

Keatley expressly testified

that Baisden did not tell her whom he asked about these cases,
and in particular she stated that her assumption that Lockard
was present was based only on “rumors.”4

Id. at 7.

Lockard is entitled to summary judgment as to the
claims based on the alleged secret meeting, because the
plaintiffs cannot support the fact the meeting occurred in any
form involving Lockard that would be admissible as required by
Rule 56.

Plaintiffs argue that Grace herself should be allowed

The court notes that while Keatley reported that the
forthcoming indictment would charge Grace with battery, Grace’s
indictment included a misdemeanor battery count as well as two
felony counts of child abuse, according to the complaint. (ECF
No. 1 at 6). This inconsistency tends to undercut the
plaintiffs’ assertion that Keatley was made privy to privileged
grand jury proceedings.
4

19

to testify as to what Keatley told her about the meeting,
notwithstanding Keatley’s availability and the fact that her
deposition testimony flatly contradicts Grace’s account.

Oddly,

plaintiffs seek to do so under the hearsay exception covering
testimony respecting “[a] reputation among a person’s associates
or in the community concerning the person’s character.”
Evid. 803(21).

Fed. R.

However, plaintiffs are seeking to establish the

truth of the testimony regarding the alleged secret meeting, not
the reputation of Lockard or any other person.

Plaintiffs

cannot rely on vague assertions about corruption or past bad
conduct in Mingo County to overcome the basic requirement that
they must support their case with admissible evidence.

Grace’s

version of her conversation with Keatley is unquestionably
hearsay.

The only competent evidence before the court

respecting the meeting is Lockard and Baisden’s denial that it
ever occurred and Keatley’s admission that her story about the
meeting was based on rumor and assumptions on her part.

Based on its review of the record, the court concludes
Lockard is entitled to summary judgment on the claims relating
to the alleged secret meeting.

While the court makes all

reasonable inferences in favor of the non-movants, a reasonable
factfinder could not find in favor of the plaintiffs because no
20

ORDER AND NOTICE
Pursuant to L.R. Civ. P. 16.1, it is ORDERED that the
following dates are hereby fixed as the time by or on which
certain events must occur:
evidence has been adduced toF.R. Civ. their version of events.
01/28/2016
Motions under support P. 12(b), together with
supporting briefs, memoranda, affidavits, or other
See Anderson, such U.S. at in support thereof. (All motions
477 matter 248.5
unsupported by memoranda will be denied without
IV. Conclusion
prejudice pursuant to L.R. Civ. P. 7.1 (a)).
02/08/2016

Last day for Rule 26(f) meeting.
For the foregoing reasons, it is ORDERED as follows:
02/15/2016
Last day to file Report of Parties= Planning
Meeting. See L.R. Civ. P. 16.1.
1.
That the motion for summary judgment filed by the Board
02/22/2016
Scheduling conference at 4:30 p.m. at the Robert C.
Byrd United States Courthouse in Charleston, before
on January 4, 2016, be, and it hereby is, granted; and
the undersigned, unless canceled. Lead counsel
directed to appear.
2.
That the motion for summary judgment filed by Lockard on
02/29/2016
Entry of scheduling order.
January 4, 2016, be, and F.R. Civ. P 26(a)(1) disclosures.
03/08/2016
Last day to serve it hereby is, granted.
The
The
Notice to all
to counsel of
parties.

Clerk is requested to transmit copiesOrder and order
Clerk is directed to transmit this of this
counsel of record and to any unrepresented
record and any unrepresented parties.
DATED:
DATED:

May 4, 2016
January 5, 2016

John T. Copenhaver, Jr.
United States District Judge

5

Lockard also argues that his actions as a grand juror are
shielded by absolute immunity. Because the court finds that
there is no admissible evidence supporting the allegation that a
secret meeting between Lockard and others ever occurred, it need
not reach the question of whether a juror would be immune from
suit based on his presence at such a meeting.
21