UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1570
PAM KINCAID,
Plaintiff - Appellant,
v.
JAMES W. ANDERSON; RUSSELL COUNTY (VIRGINIA) DEPARTMENT OF
SOCIAL SERVICES; BOARD OF RUSSELL COUNTY (VIRGINIA)
DEPARTMENT OF SOCIAL SERVICES,
Defendants - Appellees,
and
RUSSELL COUNTY (VIRGINIA); HARRY FERGUSON, Chairman of the
Board of Social Services of Russell County (Virginia); ROGER
BROWN, Vice-Chairman of the Board of Social Services of
Russell County (Virginia); LAUREL RASNICK, Member of the
Board of Social Services of Russell County (Virginia); BILL
HALE, Member of the Board of Social Services of Russell
County (Virginia); REBECCA DYE, Member of the Board of
Social Services of Russell County (Virginia),
Defendants.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District
Judge. (1:14-cv-00027-JPJ-PMS)
Submitted: February 28, 2017 Decided: March 3, 2017
Before DUNCAN and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Melvin E. Williams, MEL WILLIAMS PLC, Roanoke, Virginia, for
Appellant. Edward G. Stout, Jr., Bristol, Virginia; Henry S.
Keuling-Stout, KEULING-STOUT, P.C., Big Stone Gap, Virginia, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Pam Kincaid filed a complaint asserting numerous causes of
action arising from her employment as a social work supervisor
with the Russell County, Virginia, Department of Social Services
(“RCDSS”). Kincaid asserted sex- and religion-based
discrimination, harassment, and retaliation claims under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e -
2000e-17 (2012), and claims under the Family and Medical Leave
Act of 1993, 29 U.S.C.A. §§ 2601-2654 (West 2012 & Supp. 2016),
against Russell County, RCDSS, and the RCDSS Board. She also
raised claims against these Defendants, as well as five
individual members of the Board and her former supervisor, James
W. Anderson, for due process violations under 42 U.S.C. § 1983
(2012) and for defamation and intentional infliction of
emotional distress under Virginia law. Kincaid appeals the
district court’s orders dismissing most of her claims and
granting summary judgment to Defendants on the remaining claims.
Finding no reversible error, we affirm.
Kincaid first contests the district court’s ruling that
RCDSS, the Board, and the Board members in their official
capacities were entitled to state sovereign immunity from all of
her claims except for those brought under Title VII. We review
questions of sovereign immunity de novo. Wright v. North
Carolina, 787 F.3d 256, 261 (4th Cir. 2015). While states are
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generally immune from suit in federal court, this immunity “does
not extend to suits prosecuted against a municipal corporation
or other governmental entity which is not an arm of the State.”
Alden v. Maine, 527 U.S. 706, 756 (1999).
In determining whether a governmental entity is an arm of
the state, the most important factor is “whether a judgment
against the governmental entity would have to be paid from the
State’s treasury.” Cash v. Granville Cty. Bd. of Educ., 242
F.3d 219, 223 (4th Cir. 2001). As the record here contains no
evidence regarding this factor, we look to “(1) the degree of
control that the State exercises over the entity or the degree
of autonomy from the State that the entity enjoys; (2) the scope
of the entity’s concerns—whether local or statewide—with which
the entity is involved; and (3) the manner in which State law
treats the entity.” Id. at 224. We discern no error in the
district court’s conclusion that these considerations, on
balance, weigh in favor of RCDSS functioning as an arm of the
state. We therefore affirm the district court’s sovereign
immunity determination.
Next, Kincaid challenges the district court’s dismissal of
her due process and state-law causes of action against the Board
members in their individual capacities for failure to state a
claim. We review de novo a district court’s dismissal for
failure to state a claim, accepting the complaint’s factual
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allegations as true and drawing all reasonable inferences in the
nonmoving party’s favor. Kensington Volunteer Fire Dep’t v.
Montgomery Cty., 684 F.3d 462, 467 (4th Cir. 2012); see Fed. R.
Civ. P. 12(b)(6). To survive a motion to dismiss, the
complaint’s factual allegations “must be enough to raise a right
to relief above the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Under this standard, bare
legal conclusions “are not entitled to the assumption of truth”
and are insufficient to state a claim. Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009).
We agree with the district court that Kincaid failed to
state a claim against the individual Board members with respect
to any of her causes of action. First, because Kincaid held her
supervisory position with RCDSS on a probationary basis, she had
no constitutionally protected property interest in continuing to
hold that position. See Bd. of Regents of State Colleges v.
Roth, 408 U.S. 564, 577 (1972); Andrew v. Clark, 561 F.3d 261,
269 (4th Cir. 2009). As a result, the Board’s decision to
demote her temporarily to a nonsupervisory position did not
violate the Fourteenth Amendment due process clause. Nor did
Kincaid adequately state a due process claim concerning a
protected liberty interest, for she failed to allege that any
Board member made public the reasons for her demotion. See
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Sciolino v. City of Newport News. Va., 480 F.3d 642, 645-46 (4th
Cir. 2007).
Similarly, the absence of an allegation that the Board
members published a false statement about Kincaid fatally
undermines her defamation claim. See Jordan v. Kollman, 612
S.E.2d 203, 206-07 (Va. 2005). Furthermore, Kincaid’s
allegations against the Board members do not remotely approach
the level of outrageousness necessary to sustain a claim of
intentional infliction of emotional distress under Virginia law.
See Russo v. White, 400 S.E.2d 160, 162 (Va. 1991).
Consequently, we affirm the district court’s dismissal of all
claims against the Board members in their individual capacities.
Finally, Kincaid argues that the district court erred by
granting summary judgment to RCDSS and the Board on her Title
VII claims, and to Anderson on all claims directed against him.
We review de novo a district court’s order granting summary
judgment. Harris v. Norfolk S. Ry. Co., 784 F.3d 954, 962 (4th
Cir. 2015). Summary judgment is appropriate only where “there
is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). In determining whether a genuine issue of material fact
exists, we view the facts, and draw all reasonable inferences
therefrom, in the light most favorable to the nonmoving party.
Smith v. Gilchrist, 749 F.3d 302, 307 (4th Cir. 2014).
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In reviewing this issue, we first conclude that the
district court committed no reversible error by declining to
consider Kincaid’s interrogatory responses when ruling on
Defendants’ motions for summary judgment. Although
interrogatory answers are appropriate materials for summary
judgment purposes, Fed. R. Civ. P. 56(c)(1)(A), Kincaid’s
responses here were not properly attested, and the district
court did not abuse its discretion in refusing to accept them.
See Fed. R. Civ. P. 33(b)(3), (5); Nader v. Blair, 549 F.3d 953,
963 (4th Cir. 2008) (stating standard of review). We further
agree with the district court that the other evidence in the
record fails to establish a genuine dispute of material fact
with regard to any of Kincaid’s remaining claims, and we thus
affirm the district court’s grant of summary judgment.
Accordingly, we affirm the judgment of the district court.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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