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Hallman-Warner v. Bluefield State College

United States District Court, S.D. West Virginia, Bluefield Division

January 19, 2018

SHELIA HALLMAN-WARNER and ROSCOE OLIVER WARNER, Plaintiffs,
v.
BLUEFIELD STATE COLLEGE, et al., Defendants.

          PROPOSED FINDINGS AND RECOMMENDATIONS

          CHERYL A. EIFERT UNITED STATES MAGISTRATE JUDGE

         On May 11, 2017, Plaintiffs, proceeding pro se, filed a complaint alleging that Bluefield State College (“BSC”), the employer of Plaintiff Shelia Hallman-Warner (“Plaintiff”), retaliated against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (ECF No. 1). Plaintiffs further allege various similar and related claims against twelve individuals associated with BSC. (Id.). This matter is assigned to the Honorable David A. Faber, United States District Judge, and by standing order has been referred to the undersigned United States Magistrate Judge for the submission of proposed findings of fact and recommendations (“PF&R”) for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Currently pending are Defendants' Motion to Dismiss, (ECF No. 28); Defendants' Motion to Strike Reply to Response, (ECF No. 37), and Defendants' Motion to Strike Plaintiffs' Supplement to Complaint, (ECF No. 41).

         With respect to the Motion to Strike Reply to Response, the Court GRANTS the motion. (ECF No. 37). The Local Rule is clear that a surreply memorandum is not to be filed except with leave of court. See L. R. Civ. P. 7.1(a)(7). Even after being alerted to this Local Rule by Defendants' Motion to Strike, Plaintiffs failed to request leave of court to file their surreply memorandum. Therefore, the surreply memorandum is stricken from the record and will not been considered in this PF&R.

         On the other hand, the undersigned DENIES Defendants' Motion to Strike Plaintiffs' Supplement to the Complaint, as it provides updated information regarding the status of Plaintiff's pending grievances with the West Virginia Public Employees Grievance Board (“PEGB”) (ECF No. 41). As Defendants have raised the issue of exhaustion, the existence and status of Plaintiff's administrative grievances are highly relevant to this proceeding. Thus, the undersigned has reviewed and considered the Supplement to the Complaint in preparing the PF&R.

         In regard to Defendants' Motion to Dismiss, the undersigned finds that the issues have been thoroughly briefed by the parties, and oral argument would not assist in a resolution of the motion. Having fully considered the allegations in the complaint and Plaintiffs' supplemental filings, as well as the arguments of the parties, the undersigned respectfully RECOMMENDS that the presiding District Judge GRANT Defendants' Motion to Dismiss. The reasons for dismissal are discussed below.

         I. Relevant Factual History as Alleged in the Complaint

         The following facts are taken from the complaint and Plaintiffs' filings in support of the complaint. (ECF Nos. 1, 5, 6, 32, 39, 41, 43). For the purpose of evaluating Defendants' Motion to Dismiss, Plaintiffs' factual allegations are accepted as true. Plaintiff is a 61-year-old tenured Assistant Professor of Criminal Justice at BSC, having been a faculty member at that institution for 23 years. (ECF No. 1 at 10). In 2015, Plaintiff began vocalizing her concerns regarding institutional practices; in particular, the “lack of transparency, arbitrary and capricious decision-making, pay inequities, arbitrary and capricious decision making related to salary adjustments, safety on campus, deprival of open comment section at public governing board meetings in violation of bylaws, disparate and discriminatory treatment, alleged violations of accreditation, alleged waste, fraud, and abuse of federal funding, entitlement to funding based on status as a Historically Black College, changing of seal and logo in excess of close to $1 million dollars, as enrollment is less than 1300 students, with top 5 administrators making over $800, 000, annually, as faculty have had no cost of living increases in minimum 12 years.” (Id.). Over the next year or two, Plaintiff continued to openly express her concerns at various institutional meetings, to members of BSC's Board of Governors, and to college evaluators. (Id. at 11).

         Beginning on March 26, 2015 and continuing thereafter, the defendants allegedly engaged in a pattern and practice of harassing, humiliating, shunning, ignoring, undermining, and punishing Plaintiff in retaliation for her criticisms of BSC's administration and its financial and employment practices. (Id. at 10). As detailed in the complaint and in a supplement to the complaint, (ECF Nos. 1, 5), the defendants allegedly made Plaintiff's work life a “sheer living hell” in their daily treatment of her. In addition, the defendants denied Plaintiff a well-deserved promotion and even initiated a criminal action against her. (ECF No. 5 at 2-3). The criminal action arose from a class lecture given by Plaintiff on August 16, 2016. (ECF No. 1 at 11). On that day, Plaintiff was scheduled to teach a class on Victimology. She brought a tote to the class, which unbeknownst to her, contained a stun gun and pepper spray. (Id.). Upon discovering these items in her tote, Plaintiff removed them, displayed them to the class for approximately thirty seconds, and made a joke about them that allegedly included inappropriate language. (ECF No. 1 at 11- 12; ECF No. 32 at 8, 13; ECF No. 40 at 2). When BSC administration learned of the incident, an investigation ensued and culminated in Jason Brooks, Director of Campus Security, issuing a citation to Plaintiff, which charged her with the misdemeanor crime of disturbing a school. (ECF No. 1 at 11). As a result of the citation, Plaintiff was required to appear before a county magistrate, who was a prior student of hers, causing Plaintiff to suffer inconvenience and humiliation. (Id.). Two months later, the Mercer County Prosecutor dismissed the charge. (Id.). In addition to the citation, Plaintiff received a letter of warning in her personnel file, citing her with unprofessional conduct for displaying the stun gun and pepper spray to her class. (Id. at 12).

         In response to the defendants' harassment and maltreatment, Plaintiff filed grievances with the PEGB. (ECF No. 1 at 12, ECF No. 32 at 4). At least one of the grievances was abandoned by Plaintiff, who while attending to her sick husband, failed to file the paperwork necessary to continue the grievance process. (ECF No. 5 at 1). At least one other grievance remains pending. (ECF No. 39). Additionally, Plaintiff filed a charge with the United States Equal Employment Opportunity Commission (“EEOC”) on December 15, 2016, accusing BSC of discriminatory retaliation. (ECF No. 43 at 2-5). In the EEOC's Intake Questionnaire, Plaintiff alleged that BSC retaliated against her “for reporting alleged violations of accreditation, being ‘vocal' re.: alleged waste, fraud, and abuse of federal monies.” (Id. at 3). On February 8, 2017, the EEOC issued a “right-to-sue” letter, advising Plaintiff that the facts alleged in the charge failed to state a claim under any of the statutes enforced by the EEOC. (ECF No. 1 at 6). Within 90 days of receiving the right-to-sue letter, Plaintiff filed the instant action.

         II. Specific Causes of Action Asserted Against Each Defendant

         Plaintiff asserts a number of claims against the defendants, which are discussed in detail in the complaint and supplemental filings. They are summarized as follows:

1. Bluefield State College. Plaintiffs claim that BSC is liable for retaliation under Title VII of the Civil Rights Act of 1964; intentional infliction of emotional distress; hostile work environment; harassment; defamation of character; shunning; unwarranted discipline; disparate treatment; malicious prosecution; violation of privacy; denial of promotion; denial of “opportunity to uphold faculty duties, obligations, responsibilities”; and undermining of professional judgment. (ECF No. 1 at 10). Plaintiffs allege that BSC's actions negatively impacted Plaintiff's work performance and interfered with her ability to teach her students. (Id.).
2. Sheila Johnson, Vice-President of Financial Affairs. Plaintiffs allege that Defendant Johnson retaliated against Plaintiff “for speaking out related to various issues regarding institutional practices” by directing that a criminal citation for disturbing a school be issued to Plaintiff after she brought to class and briefly displayed a stun gun and pepper spray. (Id. at 10-11). According to Plaintiffs, Defendant Johnson devised a scheme to humiliate Plaintiff with the criminal charge. (ECF No. 32 at 13). In addition, Defendant Johnson allegedly ordered that tapes of Plaintiff's classes be pulled and reviewed for the purpose of manipulating charges and fabricating evidence. (ECF No. 1 at 11).
3. Jason Brooks, Director of Campus Security. Plaintiffs accuse Defendant Brooks of “malicious prosecution” for citing Plaintiff with disturbing a school. Plaintiffs claim that Brooks failed to properly investigate the matter before writing the citation, and then tried to intimidate Plaintiff when he learned that she had requested a jury trial on the charge. (Id. at 11).
4. Dr. Angela Lambert, Interim Provost and Vice-President, Academic Affairs. According to Plaintiffs, Defendant Lambert issued a letter of warning to Plaintiff in September 2016 after Plaintiff displayed the stun gun and pepper spray to her class. (Id. at 12). The letter allegedly contained information taken from a prior written warning given to Plaintiff, which should have been removed from her personnel file before Defendant Lambert became Interim Provost, and, therefore, should not have been available for review. Plaintiffs accuse Defendant Lambert of a “breach of privacy” for accessing the old letter of warning. (Id.). In addition, Plaintiffs claim that Defendant Lambert harassed Plaintiff by subjecting her to “increased scrutiny”; by sending Plaintiff a lengthy letter about medical leave while Plaintiff was on medical leave; and by violating the mandates of the Higher Education Policy Commission when Defendant Lambert allowed the chair of the Criminal Justice Department to “ignore input” from Plaintiff regarding matters affecting the Department. (Id.).
5. Jonetta Augenbaugh, Director, Human Resources. Plaintiffs claim that Defendant Augenbaugh improperly investigated a complaint filed against Plaintiff when there was no institutional policy governing such investigations. Defendant Augenbach also allegedly provided Plaintiff with an unrelated policy on grievances and violated several West Virginia code sections related to Plaintiff's grievance proceedings; for example, Defendant Augenbach scheduled a hearing when she knew Plaintiff was on medical leave; failed to give Plaintiff a transcript of a grievance hearing; and provided Plaintiff with a flash drive that did not accurately represent what had transpired at a grievance hearing. (Id. at 12-13). Moreover, Defendant Augenbaugh allegedly violated Plaintiff's privacy by wrongfully disclosing to the Interim Provost the letter of warning given to Plaintiff in 2015, which Plaintiffs claim should have already been removed from Plaintiff's personnel file. Plaintiffs add that Defendant Augenbaugh acted inappropriately by filling a vacant position for a Law Enforcement professor without Plaintiff's input.
6. Martha Eborall, Dean, Arts and Sciences. Plaintiffs contend that Defendant Eborall harassed Plaintiff by subjecting her to heightened scrutiny; by failing to support Plaintiff when others harassed her; by undermining Plaintiff's professional judgment; by failing to address and resolve pay inequities repeatedly pointed out by Plaintiff; by excluding her from search committees to fill critical positions; and by threatening Plaintiff with insubordination and disciplinary actions. In addition, Defendant Eborall allegedly treated Plaintiff in a disparate manner by requiring her to supply additional paperwork for personal leave that had not been required in the past and was not requested from Plaintiff's colleagues. (Id. at 13).
7. Amanda Matoushek, Chair of Social Sciences. Plaintiffs complain that Defendant Matoushek placed Plaintiff under “increased scrutiny, ” refused to give her a letter of recommendation for promotion, would not appoint her to a search committee authorized to fill Criminal Justice faculty positions, and denied her the right to provide input on course schedules and adjunct positions. (Id. at 14).
8. Sandra Wynn, Chair, Promotion and Tenure Committee 2016. Plaintiffs assert that Defendant Wynn denied Plaintiff due process in the handling of her request for a promotion, a request that was denied by Defendant Wynn's committee. (ECF No. 1 at 14).
9. Dr. Joanne Robinson, Vice-President of Student Affairs. Plaintiff claims that Defendant Robinson allowed an anonymous letter to be printed in BSC's student publication, The Bluefieldian, which Plaintiffs claim mocked the Criminal Justice Department for its disputes over online learning platforms. According to Plaintiff, printing the “offensive” letter violated “college catalog policy.” (Id. at 14).
10. Jerry Perdue, Editor, The Bluefieldian. Plaintiffs accuse Defendant Perdue of printing the above-described offensive letter “intentionally and with malice aforethought.” (Id.).
11. Marsha Krotseng, President, BSC. Plaintiffs allege that Defendant Krotseng denied Plaintiff a promotion on the basis of discriminatory and retaliatory reasons. (Id. at 14-15). Plaintiffs further claim that Defendant Krotseng was “complicit” in allowing selective application of various policies, in allowing the Criminal Justice Department to deteriorate, in allowing violations of due process and equal protection, and in allowing Plaintiff to be disrespected. Defendant Krotseng also allegedly failed to effectively lead BSC and supervise administrators. Plaintiffs contend that Defendant Krotseng is “ultimately responsible for each and every action of violation of constitutional rights and disrespect cited herein.” (Id.).
12. Robert E. Perkinson, Jr., Chair, BSC Board of Governors. Plaintiffs allege that Defendant Perkinson is liable for failing to prevent cronyism and bullying at BSC, for supporting the President of BSC despite her ineffectiveness, and for allowing a climate and culture of disrespect. In addition, Defendant Perkinson is “complicit in demonstrating deliberate indifference” and in the violation of Plaintiff's constitutional rights. (Id. at 15).
13. Gary Moore, Vice Chair, BSC Board of Governors. Plaintiffs accuse Defendant Moore of being “complicit in allowing failed leadership to continue, ” ignoring Plaintiff's concerns about the hostile climate at BSC, allowing disparate treatment and retaliation of Plaintiff, and of being “complicit in deliberate indifference, ignoring outcries and vote of no confidence against the President.” (ECF No. 1 at 15).

         III. Motion to Dismiss

         Defendants raise a number of defenses to Plaintiffs' complaint; including, sovereign immunity; qualified immunity; failure to exhaust administrative remedies with both the EEOC and the PEGB; failure to state a claim under Title VII; failure to state a claim of malicious prosecution; failure to state a claim of defamation; failure to state a claim of intentional infliction of emotional distress; failure to comply with Federal Rule of Civil Procedure 8; and failure to state any plausible claim for relief under federal law. (ECF No. 30). In short, Defendants argue that while Plaintiffs allege a hodge podge of generalized workplace grievances, the factual allegations in their complaint simply do not satisfy the criteria of any claim recognized under Title VII, which is the purported basis of federal jurisdiction in this case, or under any other federal law. Furthermore, Defendants contend that even if the Court locates in the hodge podge of the complaint some viable claim under federal law, the complaint must be still dismissed because (1) Plaintiffs failed to exhaust administrative remedies before filing the complaint and (2) all of the defendants are entitled to immunity from suit.

         IV. Stand ...


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