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Swatzell v. The Board of Regents

United States District Court, E.D. Missouri, Southeastern Division

July 21, 2017

LUCINDA SWATZELL, Plaintiff,
v.
THE BOARD OF REGENTS, SOUTHEAST MISSOURI STATE UNIVERSITY Defendant.

          MEMORANDUM AND ORDER

          JOHN A. ROSS UNITED STATES DISTRICT JUDGE.

         This 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.

         I. Background

         Plaintiff 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).

         Defendant 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).

         Plaintiff 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).

         On 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 Count III.

         II. Legal standard

         A 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).

         III. Discussion

         The 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.[1] 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.

         There 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. 2015)).

         “The 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)).

         Defendant 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 ...


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