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Drewrey v. Portsmouth City School Board

United States District Court, E.D. Virginia, Norfolk Division

September 6, 2017




         This matter comes before the court on the Motion to Dismiss ("Motion") and Memorandum in Support filed by Defendant Portsmouth City School Board ("Board") on June 1, 2017. ECF 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, and the Board filed a Reply on June 19, 2017. ECF No. 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), to conduct hearings, including evidentiary hearings, if necessary, and to submit to the undersigned district judge proposed findings of fact, if applicable, and recommendations for the disposition of the Motion. ECF No. 30.

         The Magistrate Judge filed the Report and Recommendation ("R&R") on July 10, 2017. ECF No. 35. The Magistrate Judge recommended denying the Motion. R&R at 1. By copy of the R&R, the parties were advised of their right to file written objections to the findings and recommendations made by the Magistrate Judge. See id. at 19-20. On July 21, 2017, the Plaintiff filed Objections. ECF No. 38. On August 15, 2017, the Board responded to the Plaintiff's Objections. ECF No. 40. The matter has been fully briefed and is ripe for review. For the reasons set forth below, the court DENIES the Motion to Dismiss.


         This action arises from a claim of employment discrimination by the Plaintiff, Russell A. Drewrey ("Drewrey"), a sixty-one year-old teacher at New Direction Center ("NDC"), an alternative school in Portsmouth, Virginia. Am. Compl. ¶¶ 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. ¶¶ 21, 23-24. Thus, Drewrey alleges that the Board, in ignoring him for promotion, intentionally, willfully, and maliciously violated the Age Discrimination in Employment Act of 1967 ("ADEA"), and unlawfully retaliated against him under the ADEA, causing Drewrey economic loss and emotional harm. Id. ¶¶ 27-32.

         Drewrey filed a Complaint with the Equal Employment Opportunity Commission ("EEOC") on August 15, 2016, alleging specific acts of discrimination. Id. ¶ 5. The EEOC responded to Drewrey on October 19, 2016, informing him that he had the right to institute a civil action within ninety days. Id. ¶ 26. Drewrey then filed a Complaint in this court on January 18, 2017. ECF No. 1. Drewrey filed an Amended Complaint on May 10, 2017. ECF No. 24.

         The Board's Motion, filed pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), seeks dismissal of the claims against the Board, arguing only that the Board is insulated from suit by sovereign immunity or the Eleventh Amendment. Mot. to Dismiss. In the R&R, the Magistrate Judge found that neither sovereign immunity nor the Eleventh Amendment applies to the Board, and recommended that this court deny the Board's Motion. R&R at 6-19. The Board objected to the Magistrate Judge's conclusion that the claims in this case are not barred by sovereign immunity or the Eleventh Amendment. Def.'s Obj. at 1.


         Pursuant to Federal Rule of Civil Procedure 72(b), the court, having reviewed the record in its entirety, shall make a de novo determination of those portions of the R&R to which a party has specifically objected.[1] The court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to him with instructions. 28 U.S.C. § 636(b)(1)(C).

         Pursuant to Federal Rule of Civil Procedure 12(b)(1), a Complaint should be dismissed for lack of subject matter jurisdiction "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Evans v. B. F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999) (quoting Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991)). The Plaintiff carries the burden of proving subject matter jurisdiction. U.S. ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2009) . To meet this burden, the Plaintiff must prove subject matter jurisdiction exists by a preponderance of the evidence*. Id. Where the Defendant challenges subject matter jurisdiction pursuant to Rule 12(b)(1), the court should take the facts alleged in the Complaint as true, and must deny the Motion to Dismiss, if the Complaint alleges sufficient facts to invoke subject matter jurisdiction. Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009).

         Although the Eleventh Amendment is not a "true limit" on federal courts' subject matter jurisdiction, it does inhibit the exercise of that jurisdiction. Roach v. W.Va. Reg'l Jail & Corr. Facility Auth., 74 F.3d 46, 48 (4th Cir. 1996). Therefore, if the Eleventh Amendment or sovereign immunity applies, this court should grant the Motion to Dismiss for lack of subject matter jurisdiction.

         The Eleventh Amendment immunizes nonconsenting states against suits for damages in federal court. Will v. Mich. Dept. of State Police, 4 91 U.S. 58, 67 (1989) . Eleventh Amendment immunity extends to state officials and "arm[s] of the State, " but not to municipal corporations or similar political subdivisions. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977). The ADEA does not abrogate a state's Eleventh Amendment immunity from suit by private persons. See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 92 (2000). Accordingly, the issue here is whether the Board "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. Granville County School Board of Education, the Fourth Circuit lays out the factors courts should consider to determine whether state entities are entitled to Eleventh Amendment immunity. 242 F.3d 219, 221, 223-24 (4th Cir. 2001) (holding that a North Carolina county school board was more akin to a municipality than an arm of the State) . The primary factor to consider is the State treasury, looking at whether a judgment against the governmental entity would be paid from the State's treasury. Id. at 223. Courts should also consider three additional factors: (1) the extent of the State's control over the entity;w(2) the ...

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