McCoy v. Kanawha County Board of Education

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

CHELENA J. MCCOY,

Plaintiff,

v. Civil Action No. 2:23-cv-00314

KANAWHA COUNTY BOARD OF EDUCATION

and DR. THOMAS F. WILLIAMS, JR.,

Superintendent, Kanawha County

Schools,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending before the court is defendants’ Motion to

Dismiss Complaint. ECF Nos. 5, 6 (“Def. Mem.”). Plaintiff

filed a response in opposition, ECF No. 9 (“Pl. Resp.”), to

which defendants replied, ECF No. 10 (“Def Reply”). The motion

is fully briefed.

I. Background

The following allegations are drawn from the

plaintiff’s complaint and are regarded as true for the purposes

of the motion to dismiss.

Plaintiff Chelena McCoy (“McCoy” or “plaintiff”) is a

Licensed Professional Counsellor (“LPC”) and a School Counselor

for Belle Elementary School in Belle, West Virginia, where she

has worked for the previous 11 years. Compl. ¶¶ 1, 14, 19, 20,

ECF No. 1. Defendant Kanawha County Board of Education

(“Board”) controls and manages operations of Kanawha County

Schools (“KCS”). Id. ¶ 15. Defendant Dr. Thomas F. Williams,

Jr. (“Williams”) is the Superintendent appointed by the Board to

administer and oversee the day-to-day operations of KCS. Id.

¶ 16.

From 2013 to 2021, McCoy helped administer the West

Virginia General Summative Assessment (the “WVGSA”) each spring

at Belle Elementary as the School Test Coordinator. See id.

¶ 23. The WVGSA is the State of West Virginia’s version of a

federally mandated assessment test. See id. ¶¶ 1, 24. In

administering the WVGSA, the United States Department of

Education (“USDOE”) “expects schools to achieve a 95%

participation rate.” Id. ¶ 1; see id. ¶¶ 3, 23. McCoy avers

that “Belle always achieved or exceeded the expected 95%

participation rate for the WVGSA,” except during the COVID-19

pandemic when USDOE waived the 95-percent participation

requirement. Id. ¶ 23; see id. ¶¶ 3, 30.

Like countless other schools, the COVID-19 pandemic

disrupted instruction and annualized testing at Belle

Elementary. The WVGSA for the 2019-2020 school year was

canceled across West Virginia. Id. ¶ 24. During the 2020-21

school year, “approximately 30” Belle Elementary students

“[e]xercis[ed] a safety option”1 and attended classes remotely

from home due to concerns about COVID-19 (hereinafter, the

“Online Learners”). Compl. ¶ 2.

In February 2021, as the 2021 WVGSA approached, the

West Virginia State Department of Education (“WVDOE”) addressed

a letter to parents and guardians of students in Grades 3

through 8 regarding the forthcoming WVGSA (the “WVDOE Letter”).

See id. ¶ 31; id. at Ex. 2, 1. Plaintiff attached a copy of the

WVDOE Letter to the complaint.2 See Compl. Ex. 2. As pertinent

to this matter, the WVDOE Letter stated:

Although counties and schools continue to deal

with challenges, it is even more critical this

year that we obtain data on each of our

students to further measure how much impact

the pandemic has had on student learning. The

WVGSA results will help to identify any

achievement gaps that may have occurred so

teachers can determine how best to bridge

those gaps.

1 It is unclear from the complaint whether this option was

provided only by Belle Elementary or pursuant to a policy of the

Board.

2 The court considers – and accepts as true for purposes of this

motion – “documents that are explicitly incorporated into the

complaint by reference and those attached to the complaint as

exhibits.” Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166

(4th Cir. 2016)

The WVGSA, which measures academic progress

for students and schools in West Virginia, is

an untimed test administered online.

* * *

The test will be administered at your

student's school or at an off-site location to

be determined by the county.

* * *

Your student's school will provide you with

more information about this year's

administration, including when the assessment

will be administered. If you have questions or

concerns, please contact the principal or

counselor at your student's school, or the

district test coordinator at your county's

board of education office.

WVDOE Letter, ECF No. 1-2. A list of Frequently Asked Questions

(the “WVGSA FAQ”) accompanied the letter and included the

following questions:

“Q. Can students take the test remotely?

A. No, remote testing is not allowed. All

tests are administered in an in-person

setting.

Q. Can students opt out of taking the

state’s summative assessment in spring 2021?

A. Neither West Virginia law nor the

regulations of the West Virginia Board of

Education contain provisions for ‘opting

out’ of statewide assessments, and we are

aware of no legal right for parents or

students to do so.”

Id. ¶¶ 34-35; WVGSA FAQ, Compl. Ex. 2, ECF No. 1-2, at 2.

The WVDOE Letter and WVGSA FAQ were distributed to all

parents and guardians whose children attended Kanawha County

Schools in accordance with instructions from the Board. See

Compl. ¶¶ 33, 38.

Later that same month, on February 22, 2021, USDOE

issued a guidance document about the upcoming summative

assessments in each state (the “USDOE Guidance”), which was

directed to each “Chief State School Officer.”3 Id. ¶ 25; see

Compl. Ex. 1, ECF No. 1-1 (USDOE Guidance). The USDOE Guidance

acknowledged the important role of summative assessments like

the WVSGA:

To be successful once schools have re-opened,

we need to understand the impact COVID-19 has

had on learning and identify what resources

and supports students need. We must also

specifically be prepared to address the

educational inequities that have been

exacerbated by the pandemic, including by

using student learning data to enable states,

school districts, and schools to target

resources and supports to the students with

the greatest needs. In addition, parents need

information on how their children are doing.

State assessment and accountability systems

play an important role in advancing

educational equity.

* * *

3 As related to West Virginia, this letter appears to be directed

at the State Superintendent of Schools, who supervises the

state’s public schools and leads the state Board of Education.

See W. Va. Code § 18-3-1, et seq.

[It] is clear that the pandemic requires

significant flexibility for the 2020-2021

school year so that states can respond to the

unique circumstances they are facing; keep

students, staff, and their families safe; and

maintain their immediate focus on supporting

students’ social, emotional, and academic

development.

USDOE Guidance, at 1, ECF No. 1-1; Compl. ¶ 26. The USDOE

Guidance encouraged “flexibility” as it concerned “assessment,

accountability, and reporting systems for the 2020-2021 school

year.” Id. In a paragraph labelled, “Assessments,” the USDOE

Guidance further stated:

It is urgent to understand the impact of

COVID-19 on learning. We know, however, that

some schools and school districts may face

circumstances in which they are not able to

safely administer statewide summative

assessments this spring using their standard

practices. Certainly, we do not believe that

if there are places where students are unable

to attend school safely in person because of

the pandemic that they should be brought into

school buildings for the sole purpose of

taking a test.

USDOE Guidance, at 2, ECF No. 1-1. The USDOE Guidance

“emphasize[d] the importance of flexibility in the

administration of statewide assessments.” USDOE Guidance, at 1,

ECF No. 1-1; Compl. ¶ 28. Suggested testing options included

offering “shortened version” of assessments, extending the

testing window “to the greatest extent practicable,” and

“[o]ffering remote administration, where feasible.” USDOE

Guidance, at 1, ECF No. 1-1; Compl. ¶ 28.

The USDOE Guidance also addressed the procedure for a

state to obtain a waiver from federally mandated testing

requirements. Id. ¶ 29. It stated the following with respect

to the effect of the waiver:

A state receiving this waiver would not be

required to implement and report the results

of its accountability system, including

calculating progress toward long-term goals

and measurements of interim progress or

indicators, or to annually meaningfully -

differentiate among its public schools using

data from the 2020-2021 school year. This

flexibility would explicitly include waiving

the requirement that the Academic Achievement

indicator be adjusted to account for a

participation rate below 95 percent. The state

would also not be required to identify schools

for comprehensive support and improvement

(CSI), targeted support and improvement (TSI),

and additional targeted support and

improvement (ATSI) based on data from the

2020-2021 school year. Each state that

receives the accountability and school

identification waivers would be required to

continue to support previously identified

schools in the 2021-2022 school year, resume

school identification in the fall of 2022, and

ensure transparency to parents and the public,

as described below, including publicly

reporting the percentage of students not

assessed, disaggregated by student subgroup.

USDOE Guidance, at 1-2, ECF No. 1-1.

Shortly thereafter, on March 3, 2021, the WVDOE sought

a waiver (the “USDOE Waiver”) from the 95% test participation

rate requirement, which it obtained from USDOE on April 6, 2021.

Id. ¶ 30.

According to McCoy, the Board did not circulate “any

new letters, notices or update information sheets to Belle

families or the general public advising that [the Board] was now

obligated4 to offer flexible and safe testing for children,

particularly Online Learners.” Id. ¶ 36. According to McCoy,

the Board “sought to suppress” such information. Id. ¶ 37.

However, McCoy does not allege facts that indicate the Board

ever received information regarding the federal guidance or the

waiver.

As the spring 2021 testing period approached, parents

and guardians of Online Learners expressed concerns about in-

person testing to Belle Elementary teachers, who then

communicated these concerns to McCoy in her capacity as the

School Test Coordinator. Id. ¶¶ 41-42. The resumption of the

WVGSA also concerned McCoy, who feared testing in-person at

Belle Elementary would place students at risk of contracting

COVID-19. See Compl. ¶¶ 39-40. McCoy believed the contents of

the WVDOE Letter and WVGSA FAQ were not only inaccurate, but

also were contrary to federal requirements, her professional

code of ethics as school counselor, and “moral principles.”

4 Other than this and similar conclusory statements that the

Board was “obligated” to offer “flexible and safe testing,”

McCoy offers no factual basis to establish the existence of such

an obligation. See infra. at 47-49.

Compl. ¶ 40; see also id. ¶ 42. McCoy “consulted the American

Counseling Code of Ethics . . ., which is binding on [Licensed

Professional Counselors] in West Virginia and has been adopted

by the West Virginia Board of Examiners in Counseling to govern

its counselors.” Id. ¶ 44.5 McCoy “concluded she had an ethical

obligation as a counselor, educator, and as a private citizen to

inform the public of the potentially life-saving options and

information offered by the USDOE,” id. ¶ 6, and of “the

availability of safe testing options to the children and

families that she serves,” id. ¶ 45.

McCoy first expressed her concerns to school

administrators. Initially, she requested a meeting with Belle

Elementary’s principal, Danielle Burke (“Burke”), “to share her

concerns that household members of Belle Online Learners could

be placed at increased risk of serious illness or death if those

children were required to take the WVGSA” in person. Id. ¶ 48.

During a brief meeting, which McCoy estimates lasted “at most”

15 to 20 seconds, McCoy sought permission to communicate to

parents and guardians of Belle students the availability of safe

5 The complaint also refers to the National Education

Association’s Code of Ethics for Educators and the American

School Counselor’s Association Ethical Standards for School

Counselors. Compl. ¶¶ 46-47. While the complaint alleges Ms.

McCoy is bound by these ethical codes, it does not allege she

consulted or otherwise was aware of them.

testing options, including “skipping the test altogether.” Id.

¶ 48. Burke “emphatically” disagreed with McCoy’s view that in-

person testing presented an ethical dilemma and prohibited McCoy

from providing “any additional information to parents/guardians

of Online Learners” about other testing options. Id. ¶ 49.

McCoy then spoke to Jon Duffy (“Duffy”), director of

Counseling and Testing for Kanawha County Schools, because she

hoped that he, “as a school counselor, would understand the

ethical dilemma and would contact Burke to assist in working out

an agreement that everyone could live with.” Id. ¶ 50. Duffy

also rebuffed McCoy, saying that in-person testing did not

create an ethical dilemma and similarly prohibiting McCoy from

informing parents or guardians about other testing options

“unless they called her directly to ask.” See Compl. ¶¶ 50-51.

Duffey was concerned that lower participation rates could affect

KCS’s ability to meet the 95% participation threshold in future

years, when the USDOE will again require such participation

rates. Id. at ¶ 51.

“Because both Burke and Duffy refused to permit McCoy

to disseminate information about safe testing options through

Schoology6 or any other formal school communication platform,”

6 Schoology is a website which serves as KCS’s “official school

communication platform.” Compl. ¶ 5. Online Learners received

classroom instruction through Schoology, which enables two-way

McCoy decided to contact news media outlets as “an alternative

method to convey this potentially life-saving information” to

parents and guardians of Belle students as well as to “other

potentially vulnerable persons throughout the public school

system in West Virginia.” Id. ¶ 52. With in-person testing set

to commence on Monday April 19, 2021, McCoy, on Saturday April

17, 2021, contacted “news media throughout the state in the hope

that they would see the importance of this information and

disseminate it to the public in the form of a news story.”

Compl. ¶ 53. McCoy represented herself as a “whistle-blower” to

the media and did so because parents and guardians had not been

informed of their “right” to safe testing alternatives,

including opting out of testing. Id. ¶ 53; see also id. ¶ 48.

McCoy also identified herself as a “counselor at Belle

Elementary School” who has “talked to many parents who aren’t

comfortable with sending their kids to school in person for

testing.” Compl. Ex. 5, at 2, ECF No. 1-5 (WCHS-TV story

published as a result of McCoy’s outreach) (hereinafter, the

“News Story”). Of the news media outlets she contacted, only

WCHS-TV broadcast a story, which ran on April 19, 2021, and

audio and video communication between teachers, Online Learners,

and their parents and caretakers. Id. ¶ 5 n.1

featured interviews with McCoy and Duffey. Id. ¶ 61; see News

Story.

On April 18, 2021, after she contacted news media but

before the News Story was published, McCoy emailed

Superintendent Williams. Id. ¶ 56. In her email, McCoy

explained her concern for her “students and my families,” who,

she felt, could get “facts and basic data” only through news

coverage. Id. ¶ 56. In a reply email, Williams expressed his

belief that there had been no ethical dilemma and explained that

schools had made “arrangements” for students to test at

different times. Williams also made clear his and the Board’s

interest in continuing to require in person testing: “The reason

the students need to test is so we can see where the gaps are

and thus be better able to serve them. The students need a

return to normalcy which includes doing things that are familiar

to them,” and he concluded by adding, “[t]hinking outside the

box would have taken care of this issue.” Id. ¶¶ 59-60; Compl.

Ex. 4, ECF No. 1-4 (Williams’ response to McCoy’s email). McCoy

responded that she had “asked to think outside of the box” by

creating testing alternatives but had been prevented by Burke

and Duffey from making “accommodations for those that needed

them.” Id. ¶¶ 59-60.

Testing was set to begin on April 19, 2021. See

Compl. ¶ 53 (alleging April 17, 2021, was “two days before

testing was to commence at Belle.”). That day, at the direction

of Belle Elementary Principal Danielle Burke, the WVDOE Letter

and WVGSA FAQ were distributed a second time to parents and

guardians of students of Belle Elementary. Id. ¶ 38. Also on

April 19, 2021, Burke posted on Belle Elementary’s Schoology

site, “the official online platform [of Kanawha County Schools]

through which classroom instruction was provided to Online

Learners and which enables two-way audio and video communication

between teachers, Online Learners, and their parents and

caretakers,” that “STUDENTS WILL NEED TO COME FOR TESTING.” Id.

That same day, WCHS-TV published the News Story. See

News Story. It articulated McCoy’s concerns “about the testing

being required for all students, even” Online Learners, and

quoted her as saying “They feel like they don’t have a choice.

They just have to send their kids in to this public school

environment even though they’ve been keeping them at home for

safety reasons. . . . The school is going to be more packed than

it's ever been, even though the pandemic is still going on.

They’re being told words like it’s mandatory, and it’s

required.” News Story, at 2. The News Story also quoted Duffy

as noting the WVGSA “allows us to pinpoint the performance of

each of our students in reading, writing, math and science”;

“[t]here will not be penalties for not testing; and that the

school “will be glad to accommodate [concerns about the health

and safety of the child coming into the building to test].” Id.

at 2-3.

On April 27, 2021, McCoy received a formal letter of

reprimand (the “Reprimand Letter”) from the Board, signed by

Williams on April 21, 2021, for providing inaccurate information

“in [her] capacity as a counselor for [KCS]” and for

insubordination. Id. ¶ 67. Other allegedly retaliatory actions

and adverse changes to McCoy’s employment conditions followed at

Belle Elementary, including increasing the number of counseling

sessions McCoy must conduct; excluding her from a Cultural

Diversity Collaborative Team, resulting in a loss of pay, for

the 2021-22 school year; removing her from her role as School

Testing Coordinator; removing her as Lead Coordinator of a needy

student Christmas program; moving her office to an isolated

location; and Burke, who stopped promptly responding to McCoy’s

emails about counselor advisory committee meetings, also began

“repeatedly addressing her in an insulting and accusatory tone,

sometimes doing so loudly in the presence of McCoy’s coworkers

and/or colleagues.” Id. ¶ 70(a)-(i).

McCoy brings two causes of action: Count I alleges a

violation of her right to freedom of speech guaranteed by the

First Amendment of the United States Constitution, as

incorporated by the Fourteenth Amendment, pursuant to 42 U.S.C.

§ 1983 (the “§1983 claim”); and Count II alleges a violation of

the West Virginia Whistle-blower Law, W. Va. Code § 6c-1-1 et

seq (the “whistle-blower claim”).

II. Applicable Law

The Board and Williams have moved to dismiss McCoy’s

complaint for lack of subject matter jurisdiction under Rule

12(b)(1) and for failure to state a claim under Rule 12(b)(6).

a. Rule 12(b)(1)

Federal subject-matter jurisdiction exists only to the

extent authorized by the United States Constitution and federal

statute. Where subject-matter jurisdiction is lacking, so, too,

is the court’s authority to adjudicate claims, and the action

must be dismissed.

b. Rule 12(b)(6)

Rule 8(a)(2) of the Federal Rules of Civil Procedure

requires a pleading to contain “a short and plain statement of

the claim showing . . . entitle[ment] to relief.” Fed. R. Civ.

P. 8(a)(2); Erickson v. Pardus, 551 U.S. 89, 93 (2007). A party

may test the sufficiency of a pleading by moving under Rule

12(b)(6) to dismiss it for “failure to state a claim upon which

relief can be granted.” See Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555-58 (2006).

In order to defeat a 12(b)(6) motion, a complaint must

contain “enough facts to state a claim that is plausible on its

face.” Twombly, 550 U.S. at 570. The court, at this early

stage, “must accept as true all of the factual allegations

contained in the complaint.” Erickson, 551 U.S. at 94 (citing

Twombly, 550 U.S. at 555-56). Further, all reasonable

inferences are drawn in favor of the plaintiff. E. I. du Pont

de Nemours & Co. v. Kolon Indus., 637 F.3d 435, 440 (4th Cir.

2011) (citing Nemet Chevrolet, Ltd. v. Consumeraffairs.com,

Inc., 591 F.3d 250 (4th Cir. 2009)). “Although for the purposes

of a motion to dismiss we must take all of the factual

allegations in the complaint as true, we are not bound to accept

as true a legal conclusion couched as a factual allegation.”

Iqbal, 556 U.S. at 678.

III. Analysis

a. Subject-matter Jurisdiction

The defendants first argue, in a footnote, that the

court lacks subject-matter jurisdiction over both of McCoy’s

claims inasmuch as public employees are required to

administratively exhaust claims pursuant to the West Virginia

Public Employees Grievance Procedure (“PEGP”) prior to

initiating a judicial action. Def. Mem. of Law at 5-6 n. 1, ECF

No. 6. The defendants rely on the general rule under West

Virginia Law, stated in Durelle v. Traders Federal Savings &

Loan Ass’n, 104 S.E.2d 320 (W. Va. 1958), that administrative

remedies must be exhausted prior to initiation of a civil

action. Syl. Pt. 1, 104 S.E.2d 320; see Def. Mem. at 5 n.1, ECF

No. 6. For public employees like McCoy, this means resorting to

the procedures set forth in the PEGP. Def. Mem. At 5 n.1.

Having failed to avail herself of the PEGP, the defendants argue

that the court lacks subject-matter jurisdiction to hear either

of McCoy’s claims inasmuch as they arise out of the same set of

facts.

Plaintiff asserts that the PEGP is inapplicable to her

Whistle-blower and First Amendment claims. Pl.’s Resp. at 4-5,

ECF No. 9. As to her state law whistle-blower claim, McCoy

relies on Weimer v. Sanders, a decision of the West Virginia

Supreme Court of Appeals which held that a public employee is

not required to exhaust pursuant to the PEGP prior to initiating

a complaint in circuit court alleging violations of the West

Virginia Human Rights Act (“WVHRA”). 752 S.E.2d 398 (W. Va.

2013). As McCoy reads that decision, the PEGP cannot determine

liability for either claim because “the option of filing a

grievance is permissible, not mandatory when an independent

statute provides a remedy.” Pl. Resp. at 5, ECF No. 9. The

defendants counter that Weimer is inapposite to the present case

inasmuch as that case arose under the WVHRA, rather than the

Whistle-blower Law. Respecting her First Amendment claim, McCoy

directs the court, in a footnote, to the Supremacy Clause of the

United States Constitution.

The PEGP is intended “to provide a procedure for the

resolution of employment grievances raised by the public

employees of the State of West Virginia.” W. Va. Code § 6C-2-1.

To this end, the PEGP affords a three-level grievance procedure

to aggrieved public employees, which progresses from an informal

conference and formal hearing in step one, to alternative

dispute resolution in step two, and finally, in step three, to a

hearing presided over by an administrative law judge. See W.

Va. Code § 6C-2-4. The administrative law judge’s decision may

be appealed to the Circuit Court of Kanawha County on certain

enumerated grounds. See W. Va. Code § 6C-2-5.

After the present motion became ripe for decision, the

West Virginia Supreme Court of Appeals (the “Supreme Court of

Appeals”) in State ex rel. Devono v. Wilmoth held that the

Whistle-blower Law does not require claims brought thereunder to

be exhausted pursuant to the PEGP. 889 S.E.2d 736 (W. Va.

2023). Consequently, the court need not parse out whether and

to what extent the holding in Weimer, which dealt with the

WVHRA, applies in the context of McCoy’s claims. Although the

court has not sought additional briefing (nor have the parties

ventured supplemental briefing) on the Devono decision, the

court proceeds to analyze its effect on this case.

Devono arose out of a wrongful termination action

initiated in the Circuit Court of Randolph County. Id. at 741.

A public school employee sued alleging, inter alia, that she had

been wrongfully terminated in violation of the Whistle-blower

Law. Id. The defendants, the then-superintendent of Randolph

County Schools and the Randolph County School Board, moved to

dismiss her whistle-blower claim for lack of subject matter

jurisdiction, arguing that the plaintiff had not exhausted

administrative remedies under the PEGP. Id. at 742. After the

circuit court denied the defendants’ motion, the defendants

sought a writ of prohibition in the Supreme Court of Appeals to

prevent enforcement of the circuit court’s order. Id.

The Supreme Court of Appeals denied the petition with

respect to the claim arising under the Whistle-blower Law,

holding that the filing of a grievance pursuant to the PEGP is

not required for whistle-blower claims. Id. at Syl. Pt. 9.

Starting with the text of the statute, the Supreme Court of

Appeals noted that § 6C-1-4(a) of the Whistle-blower Law

expressly provides that “a person who alleges that he or she is

a victim of a violation of this article may bring a civil action

in a court of competent jurisdiction for appropriate injunctive

relief or damages, or both.” Id. at 745. Section 6C-1-4(a),

the Devono court found, “clearly and unambiguously” permits the

initiation of a civil action in state court for alleged

violations of the Whistle-blower Law. Id. at 746.

The Supreme Court of Appeals next considered § 6C-1-

4(e), which provides that “[a]ny employee covered by the civil

service system who has suffered a retaliatory action as a result

of being a whistle-blower may pursue a grievance under the West

Virginia Public Employees Grievance Procedure.” Id. Noting the

use of the word “may” in § 6C-1-4(e), the Supreme Court of

Appeals found that “the filing of a grievance with respect to an

alleged violation of the Whistle-blower Law is permissive and

not mandatory.” Id. Interpreting these two statutory

provisions together, the Supreme Court of Appeals concluded that

“an employee is not precluded by the exhaustion rule from

instituting an action in the circuit court for an alleged

violation of the Whistle-blower Law.” Id. This conclusion, the

Supreme Court of Appeals noted, was consonant with the “clear

public policy” of the State of West Virginia to encourage

“public employees to come forward and report suspected

violations of the law,” for which the State Legislature “has

provided a clear remedy – the filing of a civil action.” Id.

Consistent with the holding in Devono, the court finds

that McCoy, as a public employee alleging violations of the

Whistle-blower Law, was not required to administratively exhaust

her whistle-blower claim prior to initiation of a civil action.

The defendants also argue that this court lacks

subject-matter jurisdiction over McCoy’s § 1983 claim because it

arose out of the same facts as McCoy’s whistle-blower claim.

Just as McCoy need not exhaust her state law whistle-blower

claim, neither does she need to exhaust her § 1983 claim, which

arises under federal law. State administrative remedies are

not, except in limited, congressionally prescribed circumstances

inapplicable here, required as prerequisites to bringing an

action pursuant to § 1983. See Patsy v. Board of Regents of

State of Florida, 457 U.S. 496, 516 (1982). The court DENIES

the Rule 12(b)(1) motion as to both claims.

b. Failure to State a Claim

Defendants next argue that plaintiff fails to state a

claim under either her Second Cause of Action, plaintiff’s West

Virginia Whistle-blower Law, W. Va. Code § 6C-1-1, et seq., or

her First Cause of Action, plaintiff’s 42 U.S.C. § 1983 claim

for First Amendment retaliation.

i. Whistle-blower claim

The defendants contend that McCoy fails to state a

claim inasmuch as her alleged whistleblowing activity is not

covered under the Whistle-blower Law. Def. Mem. at 6.

The West Virginia Whistle-blower Law provides in

relevant part:

(a) No employer may discharge, threaten, or

otherwise discriminate or retaliate against an

employee by changing the employee's

compensation, terms, conditions, location, or

privileges of employment because the employee,

acting on his or her own volition, or a person

acting on behalf of or under the direction of

the employee, makes a good faith report, or is

about to report, verbally or in writing, to

the employer or appropriate authority, an

instance of wrongdoing or waste.

W. Va. Code § 6C-1-3. “Waste” is defined as “an employer or

employee's conduct or omissions which result in substantial

abuse, misuse, destruction or loss of funds or resources

belonging to or derived from federal, state or political

subdivision sources.” W. Va. Code. § 6C-1-2(f). “Wrongdoing”

is defined as “a violation which is not of a merely technical or

minimal nature of a federal or state statute or regulation, of a

political subdivision ordinance or regulation or of a code of

conduct or ethics designed to protect the interest of the public

or the employer.” § 6C-1-2(h).

An employee who alleges that an employer violated the

Whistle-blower Law may seek injunctive relief and damages in a

civil action. Id. § 6C-1-4(a). In order to prevail on such a

claim, the employee must prove by a preponderance of the

evidence “that, prior to the alleged reprisal, the

employee . . . had reported or was about to report in good

faith, verbally or in writing, an instance of wrongdoing or

waste to the employer or an appropriate authority.” Id. § 6C-1-

4(b).

The defendants argue that McCoy’s whistle-blower claim

is subject to dismissal inasmuch as she is not a “whistle-

blower” under the Whistle-blower Act. A “whistle-blower” is

statutorily defined as

[A] person who witnesses or has evidence of

wrongdoing or waste while employed with a

public body and who makes a good faith report

of, or testifies to, the wrongdoing or waste,

verbally or in writing, to one of the

employee's superiors, to an agent of the

employer or to an appropriate authority.

Id. § 6C-1-2(g). The defendants attack the adequacy of the

allegations underpinning McCoy’s whistle-blowing claim inasmuch

as McCoy has not alleged that she reported any “wrongdoing” or

“waste” to her “employer” or any other “appropriate authority.”

Rather, McCoy alleges she was reprimanded for contacting news

media outlets, an act which the defendants argue is insufficient

to afford her protection under the Whistle-blower Act.

McCoy asserts in her response that “she made a good

faith report of wrongdoing to the Defendants, both of whom

qualify as employers or ‘appropriate authority’ under [§ 6C-1-

2(a)-(c) of the Whistle-blower Act].” Pl. Resp. at 5. McCoy

also argues that “her disclosure to the local

media . . . qualifies as a protected disclosure to the public.”

Id. at 5-6. This is so, McCoy contends, because “government

receives much of its information from public disclosures,

especially media reports of the same.” Id. As for the

”wrongdoing” McCoy allegedly reported, it consists of “settled,

national ethical standards for counseling and educators

recogniz[ing] the importance of truth and families’ knowledge

and understanding of their legal rights,” which the defendants

allegedly violated.

The court begins its analysis with the defendants’

argument that McCoy did not report to a proper entity. The

Whistle-blower Law protects public employees who make a good

faith report of wrongdoing to two types of entities: an

“employer” or “an appropriate authority.” “Employer” means “a

person supervising one or more employees, including the employee

in question, a superior of that supervisor, or an agent of a

public body.” W. Va. Code Ann. § 6C-1-2(c). An “appropriate

authority” is defined to mean:

[A] federal, state, county or municipal

government body, agency or organization having

jurisdiction over criminal law enforcement,

regulatory violations, professional conduct

or ethics, or waste; or a member, officer,

agent, representative or supervisory employee

of the body, agency or organization. The term

includes, but is not limited to, the office of

the attorney general, the office of the state

auditor, the commission on special

investigations, the Legislature and

committees of the Legislature having the power

and duty to investigate criminal law

enforcement, regulatory violations,

professional conduct or ethics, or waste.

Id. § 6C-1-2(a).

McCoy’s decision to contact the news media is plainly

the centerpiece of her complaint, and so the court first

addresses whether McCoy reported to a proper entity by

considering the allegations relevant to the news media.

McCoy has not pleaded or otherwise argued (nor could

she plausibly do so) that news media qualifies as an “employer”

in the context of this case. Rather, McCoy advances two

arguments in support of her contention that her reporting to the

news media was a protected act under the Whistle-blower Law.

First, McCoy asserts that reports to the news media are, in

effect, reports to one’s employer or an appropriate authority

inasmuch as “government receives much of its information from

public disclosures, especially media reports of the same.”7

Second, McCoy argues in the alternative that even if indirect

7 In support of this argument, McCoy directs the court to a

series of out-of-jurisdiction decisions from administrative

review boards and the United States District Court for the

District of Kansas. The most glaring issue with these

authorities, besides being non-controlling, is that none of them

are interpreting West Virginia’s Whistle-blower Law. See

Wedderspoon v. City of Cedar Rapids, Case No. 80-WPCA-1, 1980 WL

129159 (DOL Off. Adm. App. July 28, 1980) (claim arising under

33 U.S.C. § 1367); Donovan v. R.D. Andersen Const. Co., 552 F.

Supp. 249, 251 (D. Kan. 1982) (arising under 29 U.S.C.

§ 660(c)); Dobreuenaski v. Associated Universities, Inc., ALJ

Case No. 96-ERA-44, 1997 WL 530381 (DOL Adm. Rev. Bd. Aug. 19,

1997) (arising under 42 U.S.C. § 5851); Simon v. Simmons

Indust., Inc., Case No. 87-TSC-2, at *4 (DOL Off. Adm. App. Apr.

4, 1994) (arising under four federal environmental whistle-

blower provisions); Nunn v. Duke Power Co., Case No. 84-ERA-27,

at *13 (DOL Off. Adm. App. Sept. 29, 1989) (arising under 42

U.S.C. § 5851). Indeed, none of these cases analyze – let alone

determine – whether reporting to the media constitutes a report

to an “employer” or “appropriate authority” within the same or

similar meaning as the West Virginia law.

reporting is not covered by the Whistle-blower Law, her

disclosure to the media is nevertheless protected because the

media is itself an “appropriate authority.”

In response to this latter argument, the defendants

note that the express definition of “appropriate authority”

nowhere includes or implies news media – the statutory

definition includes only government entities or their members.

As the court understands McCoy’s initial argument, she argues

that her disclosure to news media is protected because media are

an indirect means of disclosure to one’s “employer” or an

“appropriate authority” under the Whistle-blower Law. Such an

indirect route to whistleblowing is foreclosed by the text of

the Whistle-blower Law, which contemplates a good faith report

by the employee “to the employer or an appropriate authority.”

The Whistle-blower Law, by its plain language, appears not to

contemplate a third-party interlocutor who conveys a report of

wrongdoing from the employee to the employer or an appropriate

authority. The court is similarly dismissive of McCoy’s second

argument. The kinds of organizations contemplated by the term

“appropriate authority” are governmental bodies with

investigative or oversight powers, not privately-owned

businesses such as a news media outlet. As pleaded, McCoy’s

report to news media was not made to her “employer” or an

“appropriate authority” as those terms are defined in the

Whistle-blower Law. Consequently, McCoy’s decision to contact

news media is not an act for which McCoy may avail herself of

the protections of the Whistle-blower Law.

Even though her report to the news media is

insufficient to state a claim under the Whistle-blower Law,

McCoy may still avail herself of the Whistle-blower Law’s

protections if she did report wrongdoing to her “employer” or

“appropriate authority.” McCoy has pleaded that the

“Defendants, collectively, constitute an ‘employer,’” under the

Whistle-blower Law and that McCoy “made a ‘good faith report’ of

‘wrongdoing’ by the Defendants, to the Defendants.” Compl.

¶¶ 78-79.

First, McCoy has not alleged that she brought her

concerns to the Board, and her only potentially relevant

interaction is her April 18, 2021, email to Williams. McCoy’s

email explained her decision to contact news media; it did not

seek or attempt to report “wrongdoing” or “waste” in its own

right. See Compl. Ex. 3, ECF No. 1-3 (McCoy’s April 18 email to

Williams in which she stated, “I felt forced to contact the

local news media this weekend to get basic facts and information

out to the parents at my school. . . . I was very anxious to get

this information out”); Compl. ¶ 56. Indeed, in that email, the

only reason she provided for sending it to Williams was that she

“just wanted to let you know [her] side of the story, as to why”

she spoke to the news media. Compl. Ex. 3, ECF No. 1-3.

Plaintiff only sought to inform Williams of the sequence of

events that preceded her speech to the news media, and the

email’s text does not indicate plaintiff reported “wrongdoing”

or “waste.” Id. Plaintiff justified her speech by telling

Williams, “my counselor code of ethics demand[s] that I provide

all the information to those that I serve,” but she does not go

so far as to report a violation of a code, regulation, or law

(i.e., “wrongdoing”) by Burke or Duffy. Accordingly,

plaintiff’s April 18, 2021, email to Williams is insufficient to

serve as the basis for a claim under the Whistle-blower Law

against the Board or Williams.

Second, McCoy may still avail herself of the Whistle-

blower Law if she reports “wrongdoing” or “waste” to an

appropriate agent of the defendants. As employees of Kanawha

County Schools, Burke and Duffey fit comfortably within the

definition of an “employer” under the Whistle-blower Law. See

W. Va. Code § 6C-1-2(c) (defining “employer” to mean “person[s]

supervising one or more employees, including the employee in

question.”).8

As the defendants’ point out, McCoy’s recasting of the

allegations – shifting the focus of the whistle-blower claim

from McCoy’s reporting to news media to her meetings with Burke

and Duffey – creates an issue for McCoy, namely, that under the

Whistle-blower Law she must allege that the alleged acts of

reprisal arose out of a good faith report of an instance of

wrongdoing to her employer. This is problematic for McCoy

inasmuch as she does not plead any nexus between her meetings

with Burke and Duffey and the acts of retaliation she alleges

have occurred. She pleads only that the Reprimand Letter is “a

reprisal against her for exercise of her right to freedom of

speech as a private citizen.” Compl. ¶ 69. Setting aside the

legal conclusion that she spoke as a private citizen, the only

speech plaintiff pleads was done as a “private citizen” – and,

thus, the only speech plaintiff pleads caused the retaliation –

was her outreach to the news media. See, e.g., Compl. ¶ 7

(“[S]he contacted statewide news media . . . in an effort to

8 McCoy, in her response, also posits that the defendants

are an “appropriate authority” under the Whistle-blower Law.

She has not pleaded as much in her complaint, and so the court

need not address this issue. See Compl. ¶ 78 (“The Defendants,

collectively, constitute an “employer” as defined by the

Whistle-blower Law.”).

inform [affected people]. . . . In taking these actions, McCoy

availed herself of the protections under the Whistle-blower Law

and her right to freedom of speech as a private citizen.”).

The first alleged act of retaliation occurred when

McCoy received the Reprimand Letter, which was dated two days

after the WCHS-TV report, and four days after she contacted the

news media. The stated reason for McCoy’s reprimand in the

Reprimand Letter is McCoy’s decision to contact news media and,

according to Williams, misrepresentations that McCoy made in the

WCHS-TV story as well as insubordination. The content of the

Reprimand Letter and the timing of the reprimand support an

inference that it was McCoy’s decision to contact the news media

rather than her meetings with Burke and Duffey that was the

basis for the Reprimand Letter. Indeed, McCoy herself takes the

Reprimand Letter at face value. See Compl. ¶ 69. That is, as

she understands it, the Reprimand Letter is direct retaliation

for her contacting the media and not cover for some other act of

retaliation by the defendants. Id.

McCoy does not state when she met with Burke or

Duffey, but these meetings presumably occurred sometime between

the WVDOE letter in February 2021 and April 17, 2021, when McCoy

contacted news media. In McCoy’s own telling, it does not

appear that she intended to report wrongdoing to Burke or

Duffey. Rather, as she wrote to Williams on April 18, 2021,

McCoy contacted Burke to “ask[] permission” to contact parents,

and contacted Duffey “to get support and guidance,” neither of

which sounds like an attempt to report wrongdoing. Compl.

¶¶ 49-50. Despite McCoy’s attempts to recast her alleged

whistle-blowing activities to encompass not only her contacting

of the news media but also her meetings with Burke and Duffey,

McCoy’s argument is not supported by a fair reading of her

complaint. It further appears that McCoy has not established

that “wrongdoing” occurred, inasmuch as the waiver or USDOE

Guidance did not, in fact, impose any claimed obligation on the

Board or Belle to offer certain testing alternatives. See infra

at 47-49.

As for the other alleged acts of retaliation, which

variously amount to adverse changes in the conditions of McCoy’s

employment, McCoy does not state when these acts began, and her

complaint similarly does not support an inference that they were

connected to her conversations with Burke and Duffy, rather than

her outreach to news media.

Accordingly, because McCoy has failed to plead that

she is a “whistle-blower” under the Whistle-blower Law, she has

failed to state a claim thereunder, and the court will dismiss

her Second Cause of Action.

ii. Section 1983 claim

1. Plaintiff’s Claim Against Williams and the Board

Plaintiff brings her First Amendment retaliation

claims against both the Board and Superintendent Williams in his

official capacity. Defendants argue that plaintiff’s § 1983

claim against Williams is duplicative of that against the Board

because she has sued him only in his official capacity. Def.

Mem. 15-16. Plaintiff admits the same. Pl. Resp. 9 n.4.

“Official-capacity suits . . . generally represent

only another way of pleading an action against an entity of

which an officer is an agent.” Kentucky v. Graham, 473 U.S.

159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (internal

quotations omitted). “As long as the government entity receives

notice and an opportunity to respond, an official-capacity suit

is, in all respects other than name, to be treated as a suit

against the entity” and should be dismissed on the basis that it

is duplicative. Id. at 166 (citing Brandon v. Holt, 469 U.S.

464, 471–72, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985)).

Here, plaintiff named as defendants both the Board and

Williams, acting in his official capacity as Superintendent.

The Board received notice and had an opportunity to respond.

Inasmuch as plaintiff’s claims against Williams in his official

capacity is duplicative of those against the Board, the court

dismisses plaintiff’s retaliation claim against Williams.

iii. Plaintiff’s Claim Against the Board

McCoy asserts a claim against the Board for First

Amendment retaliation in violation of 42 U.S.C. § 1983.

Specifically, she alleges that the defendants violated her First

Amendment right to free speech by retaliating against her after

she spoke to WCHS-TV about the alleged discrepancies between the

information that had been provided locally to parents and that

which was directed by federal guidance. In their Motion to

Dismiss, defendants argue that plaintiff has failed to state a

First Amendment retaliation claim under § 1983 because she has

failed to allege that her speech is protected, because she has

failed to allege that her interests in the speech outweigh the

Board’s interests, and because she has failed to allege the

existence of a policy or custom that led to any alleged

constitutional injury.9 Def. Mem. at 8-15.

The First Amendment protects not only the freedom of

speech, but also the “right to be free from retaliation by a

9 As will be discussed below, to state a First Amendment

retaliation claim under § 1983 against a local government or a

local governmental subdivision, a plaintiff need not plead an

official policy or custom that gave rise to the constitutional

injury.

public official for the exercise of that right.” Suarez Corp.

Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir. 2000). While

public employees “do not lose their constitutional rights at

work,” “the government may impose certain restraints on its

employees' speech and take action against them that would be

unconstitutional if applied to the general public.” Adams v.

Trustees of the Univ. of N.C.-Wilmington, 640 F.3d 550, 560 (4th

Cir.2011) (citing City of San Diego v. Roe, 543 U.S. 77, 80

(2004); Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)

(“[T]he State has interests as an employer in regulating the

speech of its employees that differ significantly from those it

possesses in connection with regulation of the speech of the

citizenry in general.”); Urofsky v. Gilmore, 216 F.3d 401, 406

(4th Cir. 2000) (“[T]he state, as an employer, undoubtedly

possesses greater authority to restrict the speech of its

employees than it has as sovereign to restrict the speech of the

citizenry as a whole.”)).

Public employees certainly have a right to speak as

private citizens. See, e.g., Pickering, 391 U.S. at 568. The

Supreme Court, however, has placed great focus on the competing

interests implicated when a public employee speaks: the

interests of the public employee “as a citizen, in commenting on

matters of public concern,” and the interests of the government

“as an employer, in promoting the efficiency of the public

services it performs through its employees.” Connick v. Myers,

461 U.S. 138, at 142 (1983) (quoting Pickering, 391 U.S. at

568); see also Smith v. Gilchrest, 749 F.3d 302, 308 (4th Cir.

2014) (discussing the Supreme Court’s analysis of “how the

rights of public employees to speak as private citizens must be

balanced against the interest of the government in ensuring its

effective and efficient operation”).

The Fourth Circuit has held in McVey v. Stacy that to

state a cognizable First Amendment retaliation claim under

§ 1983, a public employee plaintiff’s complaint must establish

“(1) that the employee ‘was speaking as a citizen upon a matter

of public concern’ rather than ‘as an employee about a matter of

personal interest’; (2) that his ‘interest in speaking upon the

matter of public concern outweighed the government's interest in

providing effective and efficient services to the public’; and

(3) that his ‘speech was a substantial factor’ in the employer's

decision to take action against him.” Gilchrist, 749 F.3d at

308 (quoting McVey v. Stacy, 157 F.3d 271, 277-78 (4th Cir.

1998)).

1. Characterization of Speech

The court first must determine whether plaintiff has

sufficiently pled that she was “speaking as a citizen upon a

matter of public concern.” McVey, 157 F.3d at 277. If she

spoke as a public employee, rather than as a citizen, or on a

matter of personal interest, rather than one of public concern,

she has failed to state a claim under § 1983. Id. This “can be

further ‘divided into two inquiries: whether the speech was made

as a citizen or pursuant to the employee's duties, and whether

the content of the speech addressed a matter of interest to the

community rather than complaints over internal office affairs.’”

Porter v. Bd. of Trustees of N. Carolina State Univ., 72 F.4th

573 (4th Cir. 2023), cert. denied, 144 S. Ct. 693 (2024)

(quoting Crouse v. Town of Moncks Corner, 848 F.3d 576 (4th Cir.

2017) (internal quotations and citations omitted)).

To determine whether a public employee’s speech was

made pursuant to their duties, the court must “engage in a

‘practical’ inquiry into the employee’s ‘daily professional

activities.’” Hunter v. Town of Mocksville, 789 F.3d 389, 397

(4th Cir. 2015) (quoting Garcetti, 547 U.S. at 422, 424).

“Whether the employee spoke at his workplace or away from it is

not dispositive. . . . Likewise, courts must look beyond formal

job descriptions, and ‘the listing of a given task in an

employee's written job description is neither necessary nor

sufficient to demonstrate that conducting the task is within the

scope of the employee's professional duties.’” Crouse, 848 F.3d

at 584 (quoting Garcetti, 547 U.S. at 420, 424-25). Courts may

also look to whether the public employee herself perceived she

was engaging in speech pursuant to her duties. See Porter, 72

F.4th, at 583 (finding “Appellant [spoke] as an employee” in

part because his reasoning for the speech “amount[ed] to a

description of Appellant's perspective as to his duties as an

employee.”).

It is also dispositive whether plaintiff’s speech

addressed a matter of public concern rather than a matter of

personal interest. This inquiry requires “subtle judgment” of

the court, Berger v. Battaglia, 779 F.2d 992, 999 (4th

Cir.1985), in the determination of “whether the ‘public’ or the

‘community’ is likely to be truly concerned with or interested

in the particular expression, or whether it is more properly

viewed as essentially a ‘private’ matter between employer and

employee.” Goldstein v. Chestnut Ridge Volunteer Fire Co., 218

F.3d 337 (4th Cir. 2000) (quoting Berger, 779 F.2d at 999))

(hereinafter, “Chestnut Ridge”). The court must “use the

content, form, and context as guideposts in the exercise of

common sense, asking throughout: would a member of the community

be truly concerned with the employee's speech?” Id. “Speech

involves a matter of public concern when it involves an issue of

social, political, or other interest to a community.” Urofsky

v. Gilmore, 216 F.3d 401, 406-07 (4th Cir. 2000) (en banc).

It is clear that plaintiff’s speech was a matter of

public concern. The Board does not directly argue that

plaintiff’s speech was not related to a matter of public

concern; rather, it only argues that plaintiff’s speech

“contradicts and misrepresents the [WVGSA] requirements” and is

thus not protected. Mot. to Dismiss, at 10, ECF No. 5.

Interpreting this as an argument that the speech was not on a

matter of public concern, the court is unpersuaded.

Plaintiff spoke to WCHS-TV with regard to the WVGSA

testing about her concerns that parents of Online Learners had

not been comprehensively informed of their options, “the

potentially life-saving options” to obtain testing

accommodations pursuant to pandemic-related safety concerns.

Compl. at ¶ 6. She spoke in an attempt to provide “parents and

guardians all over West Virginia” “all of the facts

available . . . so they could make the most informed decision

for their family’s safety with regard to in-person testing at

their schools.” Id. at ¶ 40. Further, according to plaintiff,

numerous parents – members of the public – had previously

“express[ed] concerns about the requirement that their children

take the tests in-person at Belle.” Id. at ¶ 40.

Plaintiff’s speech, at bottom, contained two general

substantive categories of communication: public safety and a

disagreement with the Board’s WVGSA preparation regarding Online

Learners. Public safety is a “quintessential matter of ‘public

concern.’” Chestnut Ridge, 218 F.3d at 353. Additionally,

“employee criticisms of employer policy made privately to the

public employer may nevertheless be on a matter of public

concern where the content and the context reveal that the

expression is not merely that of a private grievance.” Berger,

779 F.2d at 999. Plaintiff here spoke to the news media, in the

context of a still-ongoing pandemic, on a topic over which,

plaintiff claims, members of the community had already expressed

genuine concern. See Compl. ¶ 41 (alleging parents expressed

concerns to Belle teachers regarding in-person testing); News

Story (“[McCoy] said she's talked to many parents who aren't

comfortable with sending their kids to school in person for

testing.”). Though plaintiff’s speech resulted from a

disagreement with her employer’s policy regarding the extent

that the Board would inform parents of alternate testing

options, it was not merely a personal grievance. Accordingly,

plaintiff’s speech was on a matter of public concern.

The court must also determine whether plaintiff spoke

as a private citizen or pursuant to her duty as a public

employee by “engag[ing] in a ‘practical’ inquiry into

[plaintiff’s] ‘daily professional activities.’” 10 Hunter, 789

F.3d at 397 (quoting Garcetti, 547 U.S. at 422, 424). According

to her complaint, plaintiff was a “long-time School Counselor

for Belle Elementary School,” and, “for the nine years prior to

the” events giving rise to this action and in the spring of

2021, plaintiff “was the School Test Coordinator, tasked with

administering the WVSGA under the supervision of Burke and

Duffy.” Compl. ¶ 1, 23. In her capacity as School Counselor

and as School Test Coordinator, in the days leading up to the

testing, “teachers of Online Learners advised McCoy” that

parents were “expressing concerns” about in-person testing

requirements. Id. at ¶ 41, 42.

Plaintiff “consulted the American Counseling

Association Code of Ethics (“ACA Code”), which is binding on

Licensed Professional Counsellors in West Virginia and has been

adopted by the West Virginia Board of Examiners in Counseling to

govern its counselors.”11 Compl. ¶ 45-46. As a counselor, she

10 Inasmuch as this inquiry is a question of law, see Urofsky,

216 F.3d at 406, the court discounts plaintiff’s conclusory

statements in her complaint that she spoke merely “as a private

citizen,” Compl. ¶ 6, 7, 11, 64, 65, 66, 69, 73. See Iqbal, 556

U.S. at 678 (“[The court] is not bound to accept as true a legal

conclusion couched as a factual allegation.”)

11 Plaintiff also avers that her conduct in this matter was

“governed by” two other ethical codes of educators and school

sought Burke and Duffy’s permission to affirmatively inform

students that “safer options were available” as an alternative

to in-person testing, which both refused. Id. at ¶ 48-50.

Plaintiff still sought to convey “information about safe testing

options,” and thus “devised an alternative method” to using

“Schoology or any formal school communication platform.” Id. at

¶ 52. Thus, on the weekend prior to the WVGSA, plaintiff

contacted “statewide news media outlets to inform them of her

concerns.” Id. at 53. While doing so, plaintiff “expressly

characterized herself as a whistle-blower,” id. at 54, but also

identified herself as “a counselor at Belle Elementary School.”

News Story, ECF No. 1-5.

These allegations, the court finds, are insufficient

to establish that plaintiff spoke as a private citizen, rather

than pursuant to her duties as a public employee. Her

allegations make clear that, as part of her ongoing duties and

responsibility as a School Test Coordinator and School

Counselor, she was a key source of information and point person

for questions regarding WVGSA procedures for both parents and

other Belle Elementary teachers. See Compl. ¶ 41; News Story

(“[Plaintiff] said she’s talked to many parents who aren’t

counselors, but she does not plead that she consulted or

otherwise knew about them. Compl. ¶ 44-47; see infra 9 n.5.

comfortable with sending their kids to school in person for

testing.”). Further, plaintiff spoke by identifying herself as

a public employee, identifying herself as a counselor at Belle

Elementary and bolstering her credibility by discussing

conversations she has had in that capacity.

Certainly, it is true, as plaintiff argues in her

response brief, that her “official duties did not include

expressing her dissent or concerns about the [d]efendants’

alleged refusal to inform students and their parents of”

alternative testing options, that plaintiff spoke to the news

media on her own time, and that defendants did not “retain

[plaintiff] as a media relations agent.” Pl. Resp. Br. 7, ECF

No. 9; see Compl. ¶ 1, 23 (describing plaintiff as a School

Counselor and School Test Coordinator); ¶ 53. However, that an

employee spoke away from her workplace is not dispositive, and a

court must look beyond “formal job descriptions” in determining

whether an employee spoke as an employee or a private citizen.

Crouse, 848 F.3d at 584; see also Hunter, 789 F.3d at 397.

Despite plaintiff’s arguments, her speech fell within

the realm of what she and others understood to be her duties as

a public employee: to communicate information regarding the

WVGSA procedures at Belle Elementary School. Having been

prohibited by Burke and Duffy from sharing with parents

information about the district’s waiver, plaintiff spoke to the

news media as an “alternative” to “Schoology or any other formal

school communication platform.” Compl. ¶ 52. In arriving at

her decision to speak to the news media, she “consulted the [ACA

Code], which is binding on LPCs in West Virginia” and governs

counselors in the state. Id. at ¶ 44-45. Further still, the

complaint itself describes that plaintiff “concluded she had an

ethical obligation as a counselor, educator, and as a private

citizen” to engage in the speech in question. Id. at ¶ 6.

Thus, she understood her speech to be derivative of and directly

related to her duties as the School Counselor and School Test

Coordinator. See Porter, 72 F.4th, at 583 (finding “Appellant

[spoke] as an employee” in part because his reasoning for the

speech “amount[ed] to a description of Appellant's perspective

as to his duties as an employee.”).

The court finds that though plaintiff has sufficiently

pled that she spoke on a matter of public concern, she has

failed to plead facts sufficient to establish that she spoke as

a private citizen, rather than as a public employee. She has

thus failed to state a First Amendment retaliation claim under

§ 1983.

2. Balancing of Interests

Even assuming arguendo that plaintiff spoke as a

private citizen on a matter of public concern, the court finds

that the defendant Board’s interests in providing efficient and

effective services outweighs plaintiff’s interest to speak on

this matter. Pickering and the second prong of the McVey test

“requires full consideration of the government's interest in the

effective and efficient fulfillment of its responsibilities to

the public.” Brickey v. Hall, 828 F.3d 298, 304 (4th Cir. 2016)

(quoting Connick, 461 U.S. at 150). This governmental interest

must be balanced against “the interests of the [employee], as a

citizen, in commenting upon matters of public concern.” Id.

(quoting Pickering, 391 U.S. at 568). In addition, “[t]he

public’s interest in hearing the employee’s speech also weighs

in the balance: ‘A stronger showing of public interest in the

speech requires a concomitantly stronger showing of government–

employer interest to overcome it.’” Id. (quoting McVey, 157

F.3d at 279 (Murnaghan, J., concurring)).

In analyzing this balance, the court “‘must take into

account the context of the employee's speech’ and ‘the extent to

which it disrupts the operation and mission’ of the

institution.”12 Ridpath v. Bd. of Governors Marshall Univ., 447

F.3d 292, 317 (4th Cir. 2006) (quoting McVey, 157 F.3d at 277).

It is well established that “factors relevant to this inquiry

include whether a public employee’s speech (1) impaired the

maintenance of discipline by supervisors; (2) impaired harmony

among coworkers; (3) damaged close personal relationships; (4)

impeded the performance of the public employee's duties; (5)

interfered with the operation of the institution; (6) undermined

the mission of the institution; (7) was communicated to the

public or to coworkers in private; (8) conflicted with the

responsibilities of the employee within the institution; and (9)

abused the authority and public accountability that the

employee's role entailed.” Brickey, 828 F.3d at 304 (finding

12 Plaintiffs argue that the second McVey factor is not to be

assessed at the motion to dismiss stage and should be assumed

satisfied until a factual record has been developed. Pl. Resp.

Br. 8 (“The law does not require McCoy to plead that her speech

failed to disrupt the workplace, and furthermore, nothing in the

Complaint suggests her speech impeded her or other employees’

duties.”) (citing Ridpath, 447 F.3d at 317-18). Plaintiff,

however, cherry picks and misinterprets Ridpath. There, the

court did indeed decide that the plaintiff had sufficiently pled

satisfaction of this second prong, finding that “[a]t the Rule

12(b)(6) stage, Ridpath’s allegations warrant the inference that

his free speech interests outweigh the detrimental effect, if

any, his comments may have had on the efficiency of the

workplace.” Ridpath, 447 F.3d at 318. The court found that

“[a]ccepting [his] allegations as true and giving Ridpath the

benefit of the reasonable factual inferences . . . he has

satisfied the second prong of the McVey test.” Id. That

analysis is plainly an application of the second McVey prong at

the motion to dismiss stage.

the above balancing test and factors clearly established for

purposes of qualified immunity analysis) (quoting Ridpath, 447

F.3d at 317). “The employer need not prove actual disruption,

but only that an adverse effect was reasonably to be

apprehended.” Id. (quoting Maciariello v. Sumner, 973 F.2d 295,

300 (4th Cir. 1992)) (internal quotations omitted).

Applying this standard in Ridpath, the Fourth Circuit

made clear that a complaint satisfies this balancing inquiry

unless “‘it appears beyond all doubt that [plaintiff] can prove

no set of facts’ to tip the [second prong of McVey] balance in

[her] favor.” 447 F.3d at 318 (quoting Trulock v. Freeh, 275

F.3d 391, 405 (4th Cir.2001)). There, the Fourth Circuit

analyzed a retaliation claim of a public employee whose

complaint did “not specify” the precise content of his remarks.

Id. at 317. Finding that neither the plaintiff’s amended

complaint nor defendant’s briefing indicated how his comments

“impaired the maintenance of discipline, hurt workplace morale,

[] constituted an abuse of [plaintiff’s] position[, or] . . .

how . . . [plaintiff’s] remarks interfered with the University’s

efficient operation,” the court found that the “complaint

alleges that [plaintiff] was relieved of his adjunct teaching

position for protected statements that had no impact on his

workplace whatsoever.” Id.

The same cannot be said in this matter: Much of the

complaint alleges facts that show plaintiff’s speech was

misleading, undermined the mission of the Board, and conflicted

with her responsibilities as a Belle employee. Though plaintiff

certainly has a strong interest in speaking about matters of

public concern like public health, she has far more limited (if

any) interest in conveying misleading information regarding the

WVGSA and the Board’s testing requirements. Plaintiff’s

complaint alleges that, after receiving the Waiver, the Board

“was now obligated to offer flexible and safe testing options

for children . . . who may reside with fragile household

members.” Compl. ¶ 34. However, the USDOE Guidance appended to

the complaint belies that statement. Therein, the USDOE makes

clear that the effect of the waiver is to waive “the

accountability and school identification requirements in the

Elementary and Secondary Education Act of 1965,”13 and it

explains which requirements are waived and which remain in

force. USDOE Guidance, ECF No. 1-1, at 1-2. Indeed, the USDOE

Guidance makes clear that the waiver does not impose on schools

any obligation or requirement to change their testing procedure;

rather it “encouraged states and school districts to consider

other steps” to reduce the stakes of the assessment and told

13 20 U.S.C. § 70, et seq.

states that schools “should use that flexibility [in the

administration of statewide assessments] to consider” changes to

testing procedures if they “face circumstances in which they are

not able to safely administer” the testing “using their standard

practices.” Id. at 2. Such encouragement does not impose a

requirement, and the plaintiff has failed to otherwise plead

that the waiver itself included any such requirement to change

testing procedures.

According to the complaint, communication from the

WVDOE reflected a continued state-level requirement that all

students complete the WVGSA and permitted counties to institute

their own testing procedures or requirements. See Compl. Ex. 2,

WVDOE Letter, ECF No. 1-2 (“Yes, virtual school students are

considered public school students and are required to take the

annual statewide summative tests at the grade level they are

enrolled. . . . The test will be administered . . . as

determined by the county.”). Further, though the complaint

alleges that “Duffy conceded that children were not required to

take the test,” Compl. ¶ 9, the complaint, itself, again shows

this is untrue: in the News Story, appended to the complaint,

Duffy only clarifies that “[t]here will not be penalties for not

testing.” News Story, ECF No. 1-5.

The complaint implies that the public has an interest

in knowing that West Virginia has received a waiver from federal

accountability standards from the 2020-21 school year. Compl.

¶ 4-7, 40 (variously referring to such information as

“potentially life-saving” and “important health and safety

information” that parents had a right to know). Parents,

however, also have a strong interest in obtaining “information

on how their children are doing.” USDOE Guidance, ECF No. 1-1.

The Board has a particularly strong interest in

providing and tracking its students’ education by conveying to

students that WVGSA remained mandatory and requiring them to

test in person to ensure high participation rates. Plaintiff

acknowledges that defendant has a purported interest in avoiding

“lower test participation rates not just that year, but also in

future years when accountability standards are reinstated.”

Compl. ¶ 5; see id. at ¶ 51. Through the complaint’s

attachments, however, plaintiff also makes clear that the Board

has a strong interest in having all of their students complete

the WVGSA. The USDOE Guidance expresses various interests that

schools and states have in the data sourced from such

comprehensive testing. See USDOE Guidance, ECF No. 1-1. For

example, it states that “[t]o be successful once schools have

re-opened, we need to understand the impact COVID-19 has had on

learning and identify what resources and supports students need.

We must also specifically be prepared to address the educational

inequities that have been exacerbated by the pandemic, including

by using student learning data . . . State assessment and

accountability systems play an important role in advancing

education equity.” Id. at 1. Additionally, the section titled,

“Assessments,” begins with a clear statement of interest in

obtaining data sourced from testing: “It is urgent to understand

the impact of COVID-19 on learning.” Id. at 2.

The WVDOE Letter additionally manifests a significant

interest in requiring students to complete the WVGSA. WDVOE

Letter, ECF No. 1-2, at 1 (“Although counties and schools

continue to deal with challenges, it is even more critical this

year that we obtain data on each of our students to further

measure how much impact the pandemic has had on student

learning. The WVGSA results will help to identify any

achievement gaps that may have occurred so teachers can

determine how best to bridge those gaps.”). Finally, the Board

expressed a similar interest in ensuring high participation

rates in testing, noting that the Board “need[s] kids to test in

order to better help their achievement during this difficult

academic time.” Reprimand Letter, ECF No. 1-2, at 3. As Burke

and Duffy made clear, that interest includes the interest to

maintain in-person testing to bolster population for the coming

WVGSA and future years.

Turning to the nonexclusive Ridpath/Brickey factors

articulated above, see infra at 45-46, the court finds that, on

balance, they weigh in favor of finding that the Board’s

interest outweighed plaintiff’s interest in her right to speak

on this matter. Not surprisingly, the complaint is silent as to

whether plaintiff’s speech impaired the maintenance of

discipline, impaired harmony among coworkers, or damaged close

personal relationships. See Brickey, 828 F.3d at 304 (the

first, second, and third factors). Inasmuch as plaintiff “was

the School Test Coordinator, tasked with administering the WVSGA

under the supervision of Burke and Duffy,” her speech impeded

the performance of her duties because she acted in direct

contradiction of their instruction. Id. (fourth and eighth

factors); Compl. ¶ 51, 52. Belle Elementary and the Board’s

mission was to ensure high participation rates to better track

overall student performance, and by pleading that she provided

misleading and different information to parents days before the

WVGSA began, plaintiff interfered with the operation of the

Board and undermined its mission and the procedures that her

supervisors and employer thought best. Brickey, 828 F.3d at 304

(fifth and sixth factors); Compl. ¶ 51; Reprimand Letter Ex. 2,

at 3-4. Plaintiff spoke publicly, rather than privately among

coworkers, increasing the likelihood that her speech would

disrupt Belle’s operations. Brickey, 828 F.3d at 304 (seventh

factor); see Durstein v. Alexander, 629 F. Supp. 3d 408, 425

(S.D.W. Va. 2022) (finding speech made in public, rather than in

private, tilts the factored balancing test in favor of

employer). And though it seems that plaintiff did not intend to

abuse her authority or the public trust, she spread misleading

information that contradicted the Board’s policies, and the

ninth factor leans somewhat in favor of the Board. See Brickey,

828 F.3d at 304 (ninth factor).

While it is true, as in Ridpath, that the complaint

does not plead specific disruptions, the court finds that, in

light of the Board’s exceedingly strong interests in ensuring

high participation to track student progress mid- and post-

pandemic and plaintiff’s far weaker interest in providing the

press information that differs from her employer’s instruction

and that misstates the effect of the waiver, under the

substantial weight of the Ridpath factors falling in favor of

the Board, “it appears beyond all doubt that [plaintiff] can

prove no set of facts to tip the [second prong of the McVey]

balance in [her] favor.” Ridpath, 447 F.3d at 318 (internal

quotations omitted).

3. Substantial Factor

Under the third McVey prong, the complaint must allege

that plaintiff’s “speech was a substantial factor” in the

Board’s decision to retaliate against her. McVey, 157 F.3d at

278; see Gilchrist, 749 F.3 at 308. In their motion to dismiss,

defendants do not claim that plaintiff’s complaint fails to

plead that her speech to the news media was a “substantial

factor” of the alleged retaliatory actions. Accordingly, the

court considers this element met for the purposes of this

motion.

4. Conclusion as to Plaintiff’s § 1983 Claim

The court has found that plaintiff’s complaint fails

to plead sufficient facts to state a First Amendment retaliation

claim under § 1983 because she has failed to plead that she

spoke as a private citizen rather than a public employee and

because her complaint and its attachments demonstrate beyond

doubt that the Board’s interest in effective and efficient

fulfillment of its responsibilities to the public outweigh

plaintiff’s right to speak as she did on this matter.

Accordingly, plaintiff’s First Cause of Action must be

dismissed.

IV. Conclusion

For the foregoing reasons, the court finds that

plaintiff has failed to state either a First Amendment

retaliation claim under § 1983 or a claim under the West

Virginia Whistle-blower Law, Va. Code § 6C-1-2, et seq., against

any defendant. Accordingly, the court GRANTS defendants’ Motion

to Dismiss in full.

The Clerk is directed to transmit copies of this order

to all counsel of record and to any unrepresented parties.

ENTER: April 25, 2024

sl lanl ea

Jo . Copenhaver, Jr.

Senior United States District Judge

55