United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant's Motion to
Dismiss Plaintiff's Second Amended Complaint, or in the
alternative, Motion to Dismiss Count II and Strike
Plaintiff's Prayer for Relief Under Count III (Doc. No.
23). The Motion is fully briefed and ready for disposition.
Lucinda Swatzell brings this action against Defendant, the
Board of Regents of Southeast Missouri State University,
asserting claims of disability discrimination, due process
violations, breach of contract, and retaliation. Plaintiff
was a tenured professor at Southeast Missouri State
University from August 2000 until January 14, 2015, when her
employment was terminated based on a student complaint
alleging sexual harassment and retaliation (Second Amended
Complaint (“SAC”), Doc. No. 21 at ¶¶
13, 14, 16-18). Plaintiff suffers from “schizoaffective
disorder, ” which causes delusions, hallucinations,
depression, periods of manic mood, impaired communication,
and impaired occupational, academic and social functioning
(SAC at ¶ 29). Plaintiff informed her Department Chair
of her condition and that she was taking psychotropic drugs
to lessen her symptoms (SAC at ¶ 30). She alleges she
was treated differently after notifying her Department Chair
of her medical condition (SAC at ¶ 37).
conducted an investigation into the student's complaint,
which included interviewing Plaintiff (SAC at ¶¶
26, 27). Plaintiff alleges she was unable to respond to
questions relating to the investigation due to her medical
condition and because her medication did not adequately
control her condition (SAC at ¶¶ 33, 34). She
requested additional time to respond to the investigation and
to retain counsel to assist her with “formulating a
coherent response” as part of a request for
accommodation (SAC at ¶ 35), but her request was denied
(SAC at ¶ 36). Plaintiff alleges she was unlawfully
denied an accommodation and terminated because of her
disability (SAC at ¶¶ 38-40).
further alleges she was deprived of her property interest in
her continued employment at the University as a tenured
professor without due process. Specifically, Plaintiff
contends the Faculty Handbook governs the process due her and
other tenured faculty subject to termination, including the
right to adequate prior notice of the proposed disciplinary
action, to be represented by counsel, to present evidence in
support of her position, to call supporting witnesses and
cross-examine adverse witnesses, as well as the right to
“an unbiased tribunal decision based on the
evidence.” (SAC at ¶¶ 46-60). Plaintiff
claims that by failing to follow the guidelines of the
Faculty Handbook, Defendants breached their contractual
relationship with her (SAC at ¶¶ 70-79).
January 25, 2017, Plaintiff filed a Second Amended Complaint
asserting claims of disability discrimination under the
Americans with Disabilities Act of 1990 (ADA) and the
Missouri Human Rights Act (MHRA) (Count I), due process
violations (Count II); breach of contract (Count III); and
retaliation (Count IV). Defendant moves to dismiss
Plaintiff's claims under Rules 12(b)(1) and 12(b)(6) on
the grounds that her claims are barred by Eleventh Amendment
immunity and fail to state a claim. Alternatively, Defendant
moves to dismiss Count II for failure to state a claim and to
strike Plaintiff's prayer for attorney's fees under
motion to dismiss on Eleventh Amendment immunity grounds is a
challenge to the court's subject matter jurisdiction over
the action and governed by Rule 12(b)(1). See Lors v.
Dean, 746 F.3d 857, 861 (8th Cir. 2014); Walls v.
Bd. of Regents of Se. Mo. State Univ., No. 1:09CV35 RWS,
2009 WL 2170176, at *1 (E.D. Mo. July 20, 2009). A court has
broad authority to decide its own right to hear a case, and
can consider matters outside of the pleadings when deciding a
“factual attack” under Rule 12(b)(1). Osborn
v. United States, 918 F.2d 724, 729 n. 6 (8th Cir.
1990); see Ozark Society v. Melcher, 229 F.Supp.2d
896, 902 (E.D. Ark. 2002) (explaining that a “factual
attack” challenges the existence of subject matter
jurisdiction in fact, irrespective of the pleadings). Under a
factual attack, it is the plaintiff's burden to establish
that jurisdiction exists, and “no presumptive
truthfulness attaches to the plaintiff's
allegations.” Osborn, 918 F.2d at 730 (quoting
Mortensen v. First Fed. Sav. & Loan Ass'n,
549 F.2d 884, 891 (3d Cir. 1977)). In other words, the
non-moving party does not have the benefit of Rule 12(b)(6)
safeguards in a factual attack. Id. at 729 n. 6. As
Defendant has attached and referenced materials which are
outside of the pleadings, the Court will consider
Defendant's motion to be a factual attack on
Plaintiff's complaint. See Shipley v. Interstate
Collections Unit, No. 11-675-CV-W-FJG, 2011 WL 6256967,
at *2 (W.D. Mo. Dec. 14, 2011).
Eleventh Amendment provides that states are immune from suit
in federal court, unless the state has consented to be sued,
or Congress has abrogated the state's immunity by some
express statutory provision. Raymond v. Bd. of Regents of
Univ. of Minn., 140 F.Supp.3d 807, 813 (D. Minn. 2015),
aff'd sub nom. Raymond v. Bd. of Regents of
the Univ. of Minn., 847 F.3d 585 (8th Cir. 2017) (citing
Will v. Mich. Dep't. of State Police, 491 U.S.
58, 66-67 (1989)); Egerdahl v. Hibbing Cmty. Coll.,
72 F.3d 615, 619 (8th Cir. 1995)). Eleventh Amendment
immunity applies with equal force to pendent state law
claims. Pennhurst State School & Hosp. v.
Halderman, 465 U.S. 89, 121 (1984), superseded by
statute on other grounds.
are three exceptions to Eleventh Amendment immunity: (1)
where the state waives immunity by consenting to suit in
federal court; (2) where Congress abrogates the state's
immunity through valid exercise of its powers; and (3) under
Ex parte Young, 209 U.S. 123 (1908), where the
plaintiff files suit against state officials seeking
prospective equitable relief for ongoing violations of
federal law. Keselyak v. Curators of the University of
Missouri, 200 F.Supp.3d 849, 854 (W.D. Mo. 2016) (citing
Sundquist v. Nebraska, 122 F.Supp.3d 876 (D. Neb.
Eleventh Amendment encompasses not only actions where the
state is actually named as a defendant, but also certain
actions against state instrumentalities.” Id.
(quoting Becker v. Univ. of Nebraska at Omaha, 191
F.3d 904, 908 (8th Cir. 1999)). In accordance with this
principle, the Eighth Circuit has stated that “State
universities and colleges almost always enjoy Eleventh
Amendment immunity.” Id. (quoting Hadley
v. N. Arkansas Cmty. Tech. Coll., 76 F.3d 1437, 1438
(8th Cir. 1996)). Whether a university actually enjoys
Eleventh Amendment protection, however, must be determined on
a case-by-case basis. Sherman v. Curators of Univ. of
Mo., 16 F.3d 860, 863 (8th Cir. 1994) (citing
Greenwood v. Ross, 778 F.2d 448, 453 (8th Cir.
1985)). To make this determination, a court must examine the
amount of the university's local autonomy and control,
and most importantly, whether any judgment rendered against
the university would ultimately be paid out of state funds.
Id. (quoting Laje v. R.E. Thomason Gen.
Hosp., 665 F.2d 724, 727 (5th Cir. 1982)).
asserts it lacks sufficient autonomy from the state (Doc. No.
24 at 3-5). The Missouri Legislature created Southeast
Missouri State University, see RSMo. § 174.020,
and requires it to submit to detailed reporting procedures.
In particular, the University must make an annual report to
the Missouri Department of Higher Education of “all
receipts of moneys from appropriations, incidental fees, and
all other sources, and the disbursements thereof, and for
what purposes, and the condition of said college.”
RSMo. § 174.170. The Missouri Legislature has defined
standards by which the University may remove its presidents
and faculty, RSMo. § 174.150, and restricts the
University's ability to independently appoint its own
Board of Regents, RSMo. § 174.060. Based on an identical
record, the University's sister school, Central Missouri
State University, was found to lack sufficient autonomy from
the state.” Canada v. Thomas, 915 F.Supp. 145,
148 (W.D. Mo. 1996) (“In light of the state's
continuous attention to CMSU's affairs, CMSU's