Kerr v. Marshall Univ. Bd. of Governors, CIVIL ACTION NO. 2:14-cv-12333

• Decision Date: 26 March 2015
• Docket Number: CIVIL ACTION NO. 2:14-cv-12333
• Court: U.S. District Court — Southern District of West Virginia
• Parties: LISA MARIE KERR, Plaintiff, v. MARSHALL UNIVERSITY BOARD OF GOVERNORS, et al., Defendants.

LISA MARIE KERR, Plaintiff, v. MARSHALL UNIVERSITY BOARD OF GOVERNORS, et al., Defendants.

CIVIL ACTION NO. 2:14-cv-12333

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION

March 26, 2015

MEMORANDUM OPINION AND ORDER

Pending before the Court is Defendants' Motion to Dismiss (the "Motion to Dismiss"). (ECF 15.) On February 4, 2015, Magistrate Judge Dwane L. Tinsley submitted his Proposed Findings and Recommendation regarding the Motion to Dismiss (the "PF&R"), which recommends that the Court grant the Motion to Dismiss, in its entirety. (ECF 24.) On February 18, 2015, Plaintiff timely filed Objections to Magistrate's Proposed Findings and Recommendation (the "Objections"), in which she objects to all but one of the PF&R's findings, as well as each of the recommendations. For the reasons discussed herein, the Court OVERRULES Plaintiff's objections to the PF&R, (ECF 25), ADOPTS the PF&R, (ECF 24), to the extent it is consistent with this Memorandum Opinion and Order, GRANTS the Motion to Dismiss, (ECF 15), and DISMISSES the Complaint, (ECF 1), in its entirety.

I. Background

This case arises out of Plaintiff's receipt of a "No Credit" grade for a course she took as a part of the Master of Arts in Teaching program at Marshall University. Plaintiff has legal training and practiced law for over fifteen years. (ECF 1 ¶17.) She enrolled in the graduate program at Marshall University "with a desire to change careers." (Id. ¶ 1.)

The Complaint alleges that, as of the fall of 2013, she was a "highly-qualified candidate for teacher certification, enrolled in her final semester of the Master of Arts in Teaching . . . program." (Id. ¶ 17.) Plaintiff states that she graduated with honors from her undergraduate institution and law school, held "[a] spotless record with no incidents of professional or academic discipline," attained a high grade point average in the graduate program, received high scores on relevant teaching examinations, and "had never received a single negative evaluation of her academic or professional performance." (Id. ¶¶ 17-19.)

In the second half of the fall semester in 2013, Plaintiff participated in the EDF 677 student teaching program. (Id. ¶ 22.) In the course of this program, Plaintiff was placed with a teacher in the Boone County School District—Defendant Kuhn. (See id.) The Complaint states that "Defendant [Kuhn], at all relevant times, was employed by" Defendant Marshall University Board of Governors ("MUBG") "as the Public School Supervising Teacher" for Plaintiff's student teaching experience. (Id. ¶ 10.) The Complaint alleges that, during the course of this placement, "she observed unprofessional conduct by defendant Kuhn, including his frequent absence in violation of Boone County school policy and West Virginia law, leaving Ms. Kerr as a de facto unpaid substitute teacher." (Id.) The Complaint also alleges that there was "a generalized student resistance to performing any academic activity at all under Ms. Kerr's instructional direction."(Id.) The Complaint states Plaintiff attempted to address her concerns regarding her EDF 677 student teaching experience directly with Defendant Kuhn, but he responded with "silence or cursory brush-offs." (Id. ¶ 23.)

The Complaint notes that Plaintiff sought advice from "defendant Southard (her University Supervisor) and Bailey (the program coordinator)," but these defendants "stonewalled" her, their responses were "antagonistic, perfunctory, dismissive and even dishonest," and Defendant Southard "routinely ignored Ms. Kerr's e-mails." (Id. ¶ 20.) The Complaint states that Plaintiff "had not experienced any such conduct from Marshall employees" before "the Fall 2013 semester." (Id. ¶ 21.)

The Complaint alleges, "[o]n information and belief, the deprivation of support by defendants Southard and Bailey was motivated by their knowledge of Ms. Kerr's homosexual orientation, of which they learned in or about August, 2013." (Id.) The Complaint also alleges that "after nearly two years of successful graduate study, Marshall suddenly began to treat [Plaintiff] as persona non grata" and that "[o]ne possible explanation is that some or all defendants developed animus toward Ms. Kerr upon learning of her homosexual orientation." (Id. ¶ 4.)

The Complaint alleges that, "on November 19, 2013, [Plaintiff] discovered that defendant Kuhn had been engaged in ongoing dishonesty" by "inflating the students [sic] grades so substantially that it amounted to a 'free pass' not to do the work Ms. Kerr assigned." (Id. ¶ 24.) On the same day, "via email to defendants Southard and Kuhn, Ms. Kerr advised Marshall that defendant Kuhn's conduct had seriously undermined the professional relationship, and that in the exercise of her best professional judgment, Ms. Kerr would suspend further interaction with defendant Kuhn pending follow-up from Marshall." (Id. ¶ 25.) In this e-mail, Plaintiff "alsoadvised Marshall of her understanding that she had fully satisfied the requirements for student teaching." (Id.) "Defendant Bailey responded the next day (November 20) by scheduling a meeting with Ms. Kerr on December 5 . . . ." (Id. ¶ 26.) "From November 20 until the December 5, 2013 meeting, Ms. Kerr received no further communications from defendants." (Id.)

During the December 5, 2013 meeting, Defendants Bailey and Eagle (a Dean of the College of Education) told Plaintiff "that she would be denied academic credit for her student teaching experience, would not receive her master's degree, and would not be recommended for teacher certification." (Id. ¶ 27.) The Complaint states that "Defendant Bailey read allegations" provided by Defendants Kuhn and Southard. (Id.) The Complaint further alleges that, after Plaintiff informed Defendant Bailey she was not aware of any negative allegations by Defendants Kuhn and Southard, Defendants Bailey and Eagle informed Plaintiff of the following:

a. Marshall had already decided, on the basis of the previously-undisclosed information, to deny Ms. Kerr academic credit, graduation and certification;

b. Marshall's alleged policy and practice was to accept any negative statement by a public school supervising teacher as true and dispositive against the student;

c. Marshall's alleged policy and practice was NOT to provide notice to its students of negative allegations prior to dispositive academic action;

d. Marshall's alleged policy and practice was NOT to provide its students opportunity to be heard prior to dispositive academic action.

(Id. ¶ 28.) After advising Plaintiff that these actions were "irrevocable," Defendant Bailey allowed Plaintiff to view a statement from Defendant Kuhn regarding Plaintiff (the "Kuhn Statement"). (Id. ¶ 29.) The Complaint alleges that the Kuhn Statement included:

a. False accusations of dishonest and unethical conduct against Ms. Kerr.

b. Direct statements by both defendants Kuhn and Southard that Ms. Kerr was unqualified to become a teacher.

c. Evaluations of Ms. Kerr as "unsatisfactory" in numerous areas which had previously, consistently, and recently been evaluated as positive, with no evident basis for the change.

(Id. ¶ 30.) During this meeting, Plaintiff told Defendants Bailey and Eagle that the Kuhn Statement included "false and defamatory" remarks, but these Defendants "repeated that the statements were dispositive." (Id. ¶ 29.) The Complaint alleges that Plaintiff also "specifically informed defendants Bailey and Eagle that two schools had asked her to apply for teaching positions, based on their direct observations of Ms. Kerr's classroom performance, and that Ms. Kerr would lose those employment opportunities if Marshall persisted in its course of action." (Id. ¶ 31; cf. id. ¶ 1 ("Ms. Kerr had at least two prospects for imminent employment as a middle school teacher.").) The Complaint states these Defendants "continued to insist that Marshall's decision was final." (Id.) The Complaint also alleges that Defendant Bailey said "you cannot seriously expect that we would give you a degree or recommend you for certification when you have done these things?" (Id. ¶ 32.) The Complaint further alleges that Defendants Bailey and Eagle handed "a sheaf of papers" to Plaintiff, dated November 21, 2013, which included the Kuhn Statement "and demanded that Ms. Kerr sign the papers before leaving the room." (Id. ¶ 33.) "Near the conclusion of the December 5 meeting, defendant Eagle told Ms. Kerr that her only opportunity to be heard would occur during 'the appeal process,' after Marshall had denied her academic credit, graduation and certification, and after the Kuhn Statement had become a part of her permanent academic record." (Id. ¶ 34.) The Complaint alleges that "Defendant Eagle also told Ms. Kerr that she herself would be responsible for deciding Ms. Kerr's appeal, and threatened to disclose the Kuhn Statement directly to Ms. Kerr's prospective employers if Ms. Kerr followed up on appeal." (Id. ¶ 35.)

"From December 5, 2013 through December 15, 2013, when Marshall's decision was entered into Ms. Kerr's permanent academic record," Plaintiff urged Defendants to "reconsider their course of action" and "advised defendants of the potential legal liability," but Defendants didnot alter their position. (Id. ¶ 36.) Plaintiff pursued Marshall's appeal process, which included involvement by Defendants Heaton (a Dean of the College of Education) and Pittenger (the Dean of Graduate Studies). (ECF ¶¶ 14-15, 38.) The Complaint describes this appeals process as follows:

a. After Stage One of the "appeal" (to defendants Southard and Bailey), Marshall summarily re-iterated that Ms. Kerr would be denied credit, graduation and certification, stating no rationale, and making no response to the arguments and evidence raised in Ms. Kerr's 24-page appeal statement.

b. After Stage Two of the "appeal" (to defendants Eagle and Heaton), Marshall relied on new false statements plainly contradicted by Marshall's own

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