United States District Court, E.D. Virginia, Norfolk Division
RUSSELL A. DREWREY, Plaintiff,
PORTSMOUTH CITY SCHOOL BOARD, Defendant.
REBECCA BEACH, SMITH CHIEF JUDGE.
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.
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.
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.
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.
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.
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.
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. 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. §
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.
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.
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.
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 ...