# McCoy v. Kanawha County Board of Education

> District Court, S.D. West Virginia · April 25, 2024

URL: https://www.frixlaw.com/law-library/cases/10731563

## Case

- **Court:** District Court, S.D. West Virginia
- **Decided:** April 25, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10731563

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10731563. Public record. Not legal advice.