Kerr v. Marshall University Board of Governors
2016 U.S. App. LEXIS 9501
| 4th Cir. | 2016Background
- Lisa Kerr, an attorney-turned-student, enrolled in Marshall University's MAT program; EDF 677 (student-teaching) required "Credit"/"No Credit" and placed evaluations in permanent academic records per the Student-Teacher Handbook.
- Kerr left her student-teaching placement in November 2013 after conflicts with supervising teacher Gene Kuhn; Marshall denied EDF 677 credit, withheld her degree and teacher recommendation, and she exhausted a three-step internal grade appeal process which upheld the "No Credit."
- Kerr sued MUBG and individual administrators/teachers asserting: defamation, tortious interference, outrage (intentional infliction of emotional distress), §1983 due process and equal protection claims (sexual-orientation and class-of-one theories), and an FLSA wage claim against Kuhn and MUBG.
- Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6); district court referred the motion to a magistrate judge for PF&R, adopted de novo review of objections, dismissed all claims; Kerr appealed.
- On appeal the Fourth Circuit affirmed: MUBG is an arm of the state entitled to sovereign immunity; the remaining claims against individuals failed for failure to state plausible claims under state and federal law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Magistrate referral / pro se treatment | Referral to magistrate was improper and complaint was not liberally construed; district court applied an "inverse-Iqbal" standard | Referral under 28 U.S.C. §636(b)(1)(B) is proper for PF&R; district court reviewed objections de novo and afforded liberal construction | Referral and review were proper; no prejudice; district court did not give complaint "short shrift" |
| Sovereign immunity of MUBG | Exceptions (arguedly including Title IX-based "anti-gay" exception post-Obergefell/Bostic) permit suit against MUBG | MUBG is an "arm of the state" and entitled to sovereign immunity; plaintiff did not plead Title IX or other waiver/exception in the complaint | Affirmed: sovereign immunity bars all claims against MUBG; plaintiff did not plead relevant waiver/exception |
| Defamation (and related West Virginia torts) | Kuhn's evaluation contained false, defamatory statements that were published and caused harm | Statements were non-actionable opinion or, alternatively, protected by qualified privilege under WV law; no publication to outsiders without legitimate interest | Dismissed: statements were opinion or otherwise privileged; complaint failed to allege non-privileged publication to third parties lacking a right to know |
| Tortious interference / Outrage | Defendants' statements and actions destroyed Kerr's employment expectancy and caused extreme emotional distress | No existing employment expectancy; conduct not "outrageous" as a matter of law; harm speculative | Dismissed: expectation of employment was speculative; conduct did not meet WV "outrageous" standard |
| §1983 Due Process / Equal Protection (sexual orientation and class-of-one) | Denial of credit/degrees deprived Kerr of property without process and was motivated by sexual-orientation animus or arbitrary irrationality (class-of-one) | Marshall provided adequate internal process; no legitimate entitlement to credit/degree; no specific allegations of discriminatory intent or similarly situated comparators; rational academic basis exists | Dismissed: no plausible entitlement to property interest; process provided; no plausible allegations of intentional discrimination; class-of-one not shown on pleaded facts |
| FLSA employer status of Kuhn | Kuhn effectively left Kerr in charge as an unpaid substitute teacher; he is an "employer" under FLSA | Student-teacher relationship is educational, not employment; Kuhn lacked hiring/firing authority and control over pay/records; economic-reality test not met | Dismissed: Kuhn was not an "employer" under FLSA given lack of indicia of control; student-teaching was not economic employment |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility standard for pleadings)
- Wag More Dogs, LLC v. Cozart, 680 F.3d 359 (4th Cir. 2012) (standard for accepting complaint facts on motion to dismiss)
- Hupp v. Sasser, 490 S.E.2d 880 (W. Va. 1997) (opinions in academic evaluations not defamatory when not provably false)
- Belcher v. Wal-Mart Stores, Inc., 568 S.E.2d 19 (W. Va. 2002) (elements of defamation and qualified privilege principles)
- Vill. of Willowbrook v. Olech, 528 U.S. 562 (class-of-one equal protection framework)
- Engquist v. Oregon Dep’t of Agric., 553 U.S. 591 (limits on class-of-one theory in some public-employment contexts)
- Falk v. Brennan, 414 U.S. 190 (employer liability factors and control in FLSA contexts)
- Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454 (4th Cir. 2012) (deference to academic judgment in due-process review)