United States District Court, S.D. West Virginia, Bluefield Division
PROPOSED FINDINGS AND RECOMMENDATIONS
A. EIFERT UNITED STATES MAGISTRATE JUDGE
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).
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.
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
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.
Relevant Factual History as Alleged in 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).
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).
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.
Specific Causes of Action Asserted Against Each
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
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.
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
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.
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
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).
Motion to Dismiss
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