United States District Court, W.D. Virginia, Roanoke Division
Elizabeth K. Dillon United States District Judge.
Jennifer Deegan, a former nursing student at Virginia Western
Community College (VWCC), brings this First Amendment
retaliation claim against VWCC administrators Melanie Moore,
Carole Graham, and Lori Baker (collectively defendants),
alleging that they retaliated against her for making
statements critical of the nursing program. Defendants now
move to dismiss, arguing that Deegan fails to state a claim
upon which relief can be granted and that they are entitled
to qualified immunity. (Dkt. Nos. 4, 6.) The motions were
fully briefed and were argued before the court on September
30, 2016. For the reasons set forth below, the court will
grant Moore's motion and deny Graham and Baker's
facts recited in this section and relied on below are based
on the allegations of Deegan's complaint. (Dkt. No. 1.)
As it must for purposes of defendants' motions to
dismiss, the court accepts Deegan's allegations as true
and construes them in the light most favorable to her.
Coleman v. Md. Court of Appeals, 626 F.3d 187, 189
(4th Cir. 2010), aff'd, 566 U.S. 30 (2012).
case arises from Deegan's criticism of and resignation
from VWCC's nursing program. Deegan enrolled in the
program in fall 2013 and grew concerned about its quality the
following spring when an unqualified instructor replaced a
qualified instructor who had resigned. (Compl. ¶ 11.) At
some point, apparently around spring 2014, Deegan discussed
her concerns with some unnamed nursing program instructors
who agreed that the program's quality of instruction was
concerns grew when she returned for class in August 2014.
(Id. ¶ 13.) Two more qualified instructors had
resigned over the summer, and the program continued to
decline. (Id. ¶¶ 12, 13.) Melanie Moore
(the Assistant Dean of Nursing) and other instructors quizzed
students on materials they had not learned the previous year
and criticized the quality of the program. (Id.
¶¶ 5, 13.) However, despite Moore's criticism
of the nursing program, she refused to discuss declining
licensure scores with a student who tried to raise the issue
during a class. (Id. ¶ 13.) Unnamed instructors
also told students that the program would try to get rid of
uncooperative students. (Id.)
the end of August, Deegan voiced her frustrations to various
members of the VWCC community. On August 27, 2014, she
contacted VWCC's Board of Trustees by letter about her
concerns, and told them that she would be willing to meet
with VWCC's President Dr. Robert Sandel to discuss them.
(Id. ¶ 14.) The following day, she complained
about the pop quizzes and lack of instruction during a
Nursing 238 class. (Id. ¶ 16.) Deegan alleges
that her comments in that class were recorded and were not
disruptive-apparently, they were made during a group
discussion of the subject with many members of the class.
(Id. ¶¶ 16, 20.) After class, Deegan met
with defendant Graham, the Dean of Health Professions, to
discuss her concerns further, and then scheduled a meeting
with Sandel, Graham, Moore, and VWCC's Vice President
Elizabeth Wilmer for September 3, 2014. (Id.
¶¶ 6, 18.)
Deegan's comments in the Nursing 238 class, defendants
“caused or encouraged” the filing of a student
misconduct report charging her with disruption and verbal
abuse. (Id. ¶ 20.) Dean Graham and
defendant Lori Baker, the Dean of Student Services, told her
about the charge in the September 3, 2014 meeting, which
Sandel, Wilmer, and Moore did not attend. (Id.
¶ 19.) The next day, Deegan received a letter from Baker
confirming that she had been charged with misconduct and
informing her that there would be a hearing before the
Student Misconduct Committee to address the charges.
(Id. ¶ 20.)
September 9, 2014, Deegan filed a grievance outlining her
problems with the nursing program. (Id. ¶ 22.)
She claimed, among other things, that teachers were bullying
nursing students and that student concerns were met with
hostility, threats, and disciplinary action. (Id.)
After a meeting with Wilmer on September 22, 2014,
Deegan's grievance was determined to be unfounded.
(Id. ¶ 23.)
met with Baker about the misconduct charge on September 29,
2014. (Id. ¶ 24.) Baker did not meet with
Deegan until Deegan requested the meeting directly, although
Baker's investigation into the charge should have
included a meeting, and Baker refused to listen to a
recording of the Nursing 238 class that Deegan brought with
her. (Id. ¶ 24.) At some point, apparently
after that meeting but prior to her misconduct hearing,
Deegan resigned from the nursing program. (Id.
¶ 26.) Despite her resignation, she still attended the
hearing on October 15, 2014, and was cleared of the
misconduct charges by the Student Misconduct Committee.
(Id. ¶ 25.)
filed this First Amendment retaliation claim against Moore,
Graham, and Baker, alleging that her criticism of VWCC's
nursing program was protected speech and that defendants
retaliated against her by filing the student misconduct
charge. Defendants move to dismiss, arguing that Deegan
failed to state viable claims against them and that they are
entitled to qualified immunity.
exhibits to their motion to dismiss, defendants included a
copy of the September 4, 2014 letter informing Deegan of the
charge against her, and a copy of the incident report on
which defendants claim the misconduct charge was based.
(Def.'s Br. Supp. Mot. Dismiss (Def.'s Br.) Ex. 1,
Dkt. No. 5-1.) The second page of the incident report is a
typed, unsigned paragraph apparently describing the
professor's account of the August 28, 2014 Nursing 238
class. The paragraph states that following a quiz on that
date, Deegan stood up and expressed her displeasure about the
quiz's content and preparation time “in a loud and
disrespectful manner” and that her conduct was
“alarming and disruptive to the class as a
her brief in opposition (Dkt. No. 9), Deegan submitted a copy
of the grievance she filed after she was charged with
misconduct (Pl.'s Br. Opp'n Ex. 1) and a copy of
VWCC's student conduct policy. (Id. at Ex. 2.)
Deegan relies on these documents for several points. First,
she claims that the grievance shows that she discussed her
concerns about the nursing program with Moore during summer
2014. Second, she claims that under the terms of the
misconduct policy, she should have had a meeting with
defendants Graham and Baker “prior to the imposition of
the misconduct charge.” (Pl.'s Br. Opp'n 4.)
Motion to Dismiss Standard
motion to dismiss under Rule 12(b)(6) challenges the legal
sufficiency of a plaintiff's complaint to determine
whether the plaintiff has properly stated a claim.
Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th
Cir. 1999). To avoid dismissal, the “complaint must
establish ‘facial plausibility' by pleading
‘factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.'” Clatterbuck v. City of
Charlottesville, 708 F.3d 549, 554 (4th Cir. 2013)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). Basically, a plaintiff must “nudge [her]
claims across the line from conceivable to plausible.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
determining whether a plaintiff has met this plausibility
standard, the court must take as true all well-pleaded facts
in the complaint and in any documents incorporated into or
attached to the complaint. Sec'y of State for Defence
v. Trimble Nav. Ltd., 484 F.3d 700, 705 (4th Cir. 2007).
Further, it must “draw all reasonable factual
inferences from those facts in the plaintiff's favor,
” Edwards, 178 F.3d at 244, but it “need
not accept legal conclusions couched as facts or
‘unwarranted inferences, unreasonable conclusions, or
arguments.'” Wag More Dogs, LLC v. Cozart,
680 F.3d 359, 365 (4th Cir. 2012) (quoting Giarratano v.
Johnson, 521 F.3d 298, 302 (4th Cir. 2008)).
The Court Will Not Consider ...