United States District Court, N.D. West Virginia
LINDSAY AMMIRANTE, AUTUMN TROULLOS and RACHEL MILLER, Plaintiffs,
OHIO COUNTY BOARD OF EDUCATION, JOE KOLB, Principal, in his individual and official capacities, KIMBERLY S. MILLER, Superintendent, in her individual and official capacities and RICK JONES, Assistant Superintendent, individually and in his official capacity, Defendants.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT JOE
KOLB'S MOTION TO DISMISS COMPLAINT
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
plaintiffs, Lindsay Ammirante (“Ammirante”),
Autumn Troullos (“Troullos”), and Rachel Miller
(“Miller”), filed a complaint in the Circuit
Court of Ohio County, West Virginia. ECF No. 1-1. The
defendants, the Ohio County Board of Education
(“OCBOE”), Kimberly S. Miller
(“Miller”), and Rick Jones (“Jones”)
then removed this civil action to the United States District
Court for the Northern District of West Virginia. ECF No. 1.
The complaint alleges that the defendants were deliberately
indifferent in responding to a “sexual predator,
” defendant Joe Kolb (“Kolb”), vice
principal or principal at Bridge Street Middle School, on
school premises. ECF No. 1-1 at 1-5. The plaintiffs, female
teachers working in that school, contend that such conduct
denied them access to educational activities and employment.
Id. Specifically, plaintiffs state that one teacher
had to take a leave of absence, another transferred to
another school, and one is actively seeking employment
elsewhere. Id. at 5. Plaintiffs contend that: (1)
defendants OCBOE, Miller, and Jones were negligent (Counts I
and II); (2) defendants OCBOE, Miller, and Jones conspired to
commit plaintiffs' alleged violations (Count III); (3)
defendant Kolb intentionally inflicted mental, physical, and
emotional distress upon plaintiffs (Count IV); (4) defendant
OCBOE violated Title IX by creating and/or subjecting
plaintiffs to a hostile educational environment, by
persisting in its actions and inactions after having actual
knowledge of plaintiffs' harms and retaliation in
addressing such harms, and by engaging in a pattern and
practice of behavior designed to discourage and dissuade
female employees who had been sexually harassed and
retaliated against from seeking protection and from seeking
to have sexual harassment be fully investigated (Counts V and
VI); (5) defendants OCBOE, Kolb, Miller, and Jones violated
42 U.S.C. § 1983 (Counts VII and VIII); and (6)
defendants OCBOE, Kolb, Miller, and Jones violated the West
Virginia Human Rights Act (“WVHRA”) (Count IX).
Id. at 5-26. Plaintiffs seek compensatory and
punitive damages, statutory interest, costs, and reasonable
attorneys' fees, and injunctive relief requiring OCBOE to
take effective steps to prevent sex-based discrimination and
harassment in its education programs, to fully investigate
conduct that may constitute sex-based harassment, to
appropriately respond to all conduct that may constitute
sex-based harassment, and to mitigate the effects of
harassment. Id. at 26-27.
Kolb filed a motion and memorandum to dismiss plaintiffs'
complaint. ECF Nos. 6 and 7. In his memorandum, defendant
Kolb first contends that he is entitled to qualified immunity
from most factual claims alleging wrongdoing in his
individual capacity. Id. at 3-5. Defendant Kolb
states that “significant portions of [p]laintiffs'
complaint are discretionary acts which clearly do not
‘violate clearly established statutory or
constitutional rights of which a reasonable person would have
known,' and are therefore protected by qualified
immunity.” Id. at 4. Second, defendant Kolb
asserts that plaintiffs' claims based on intentional
infliction of emotional distress and § 1983 do not state
claims upon which relief may be granted, specifically stating
that plaintiffs did not set forth facts to make
plaintiffs' hostile work environment or sexual harassment
claims plausible. Id. at 5-17. Third, defendant Kolb
asserts that plaintiffs do not allege actionable claims for
retaliation under § 1983 since the plaintiffs do not set
forth factual allegations that they have suffered a
materially adverse employment action for purposes of a
discrimination claim. Id. at 18-19. Fourth,
defendant Kolb contends that plaintiffs' WVHRA claims
and/or hostile workplace claims do not state claims upon
which relief may be granted, applying the same analysis set
forth in his response to plaintiffs' claims under Title
VII and § 1983. Id. at 20-21. Fifth, defendant
Kolb asserts that plaintiffs' claims against him in his
official capacity must be dismissed as duplicative of claims
against OCBOE. Id. at 21-22. Lastly, defendant Kolb
contends that the Title IX claims must be dismissed since
such claims cannot be brought against individual defendants.
Id. at 22.
then filed a response in opposition to defendant Kolb's
motion to dismiss. ECF No. 12. First, plaintiffs contend that
defendant Kolb is not entitled to qualified immunity since
plaintiffs' sexual harassment allegations are in
violation of the Equal Protection Clause of the United States
Constitution and federal law, and satisfy all pleading
requirements. Id. at 5-7. Moreover, plaintiffs state
that defendant Kolb's attempt to request dismissal of
some claims based on “discretionary conduct” is
without merit, since isolating defendant Kolb's alleged
actions into separate and distinct incidents ignores
plaintiffs' claims of retaliation. Id. at 7.
Plaintiffs further assert that whether defendant Kolb's
actions were unlawful are issues that a jury should decide.
Id. at 8. Second, plaintiffs state that they have
sufficiently pled a claim for intentional infliction of
emotional distress, and that determining what amounts to
“extreme and outrageous” for purposes of a claim
for intentional infliction of emotional distress is a
determination made by the finder of fact, not based solely on
allegations in the complaint, citing Travis v. Alcon
Labs., Inc., 202 W.Va. 369, 375-76, 504 S.E.2d 419,
425-26 (1998). Id. at 10-14. Third, plaintiffs
contend that they have sufficiently pleaded claims of sexual
harassment and retaliation under § 1983 because
plaintiffs are not required to establish a prima facie case
in their complaint, stating that the “prima
facie” standard is imposed upon a complainant in a
Title VII claim when proving, not when stating, a claim,
citing McDonnell Douglas Corp., v. Green, 411 U.S.
792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and
Swierkiewicz v. Sorema N.A., 54 U.S. 506, 515
(2002). Similarly, plaintiffs contend that they have alleged
actionable claims of retaliation under § 1983 and the
WVHRA for sexual harassment and a hostile workplace
environment against defendant Kolb since they are not
required to prove their claims in the complaint. Id.
at 17-19. Plaintiffs then assert that dismissal of defendant
Kolb in his official capacity would only be permissible as to
claims made under § 1983, but defendant Kolb may be held
individually liable under § 1983. Id. at 19-20.
Lastly, plaintiffs note that they have not stated any claim
against defendant Kolb under Title IX. Id. at 20.
Kolb then filed a reply in support of his motion to dismiss
plaintiffs' complaint. ECF No. 13. First, defendant Kolb
asserts that plaintiffs do not allege sufficient facts to
make any of their claims based on intentional infliction of
emotional distress, sexual harassment and retaliation under
§ 1983, and the claim based on the WVHRA plausible under
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), or
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
Id. at 3-6. Specifically, with respect to
plaintiffs' claims based on intentional infliction of
emotional distress, defendant Kolb states that
plaintiffs' response does not offer any case where such a
claim with similar facts was upheld by a court; and,
therefore, plaintiffs do not demonstrate
“plausibility” that their complaint can be
successful. Id. at 7. Moreover, defendant Kolb cites
Travis, 202 W.Va. at 377-378, for support that a
court, not a jury, decides whether conduct may reasonably be
considered extreme and outrageous for purposes of a claim
based on intentional infliction of emotional distress.
Id. at 8. With respect to plaintiffs' §
1983 claims, defendant Kolb states that plaintiffs'
allegations are not sufficiently severe or pervasive to
establish claims based on sexual harassment and retaliation,
and that most facts are not based on plaintiffs' sex.
Id. at 10-12. Defendant Kolb asserts that plaintiffs
are required to allege facts which plausibly satisfy the
elements of a statutory cause of action, citing Woods v.
City of Greensboro, 855 F.3d 639, 648 (4th Cir. 2017).
Id. at 12. Second, defendant Kolb contends that
plaintiffs' assertion that discretionary administrative
actions are indicia of retaliation is without merit, since
plaintiffs have not demonstrated that defendant Kolb
maintained and reinforced a hostile work environment.
Id. at 13-15. Therefore, defendant Kolb concludes,
“significant portions of [his] allegedly discriminatory
or hostile behavior are discretionary acts which clearly do
not ‘violate clearly established statutory or
constitutional rights of which a reasonable person would have
known,' and are therefore protected by qualified
immunity.” Id. at 15.
assessing a motion to dismiss for failure to state a claim
under Rule 12(b)(6), a court must accept all well-pled facts
contained in the complaint as true. Nemet Chevrolet, Ltd
v. Consumeraffairs.com, Inc, 591 F.3d 250, 255 (4th Cir.
2009). However, “legal conclusions, elements of a cause
of action, and bare assertions devoid of further factual
enhancement fail to constitute well-pled facts for Rule
12(b)(6) purposes.” Id. (citing Ashcroft
v. Iqbal, 129 S.Ct. 1937, 1949 (2009)). This Court also
declines to consider “unwarranted inferences,
unreasonable conclusions, or arguments.” Wahi v.
Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n.26
(4th Cir. 2009).
purpose of a motion under Rule 12(b)(6) is to test the formal
sufficiency of the statement of the claim for relief; it is
not a procedure for resolving a contest about the facts or
the merits of the case. 5B Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure §
1356 (3d ed. 1998). The Rule 12(b)(6) motion also must be
distinguished from a motion for summary judgment under
Federal Rule of Civil Procedure 56, which goes to the merits
of the claim and is designed to test whether there is a
genuine issue of material fact. Id. For purposes of
the motion to dismiss, the complaint is construed in the
light most favorable to the party making the claim and
essentially the court's inquiry is directed to whether
the allegations constitute a statement of a claim under
Federal Rule of Civil Procedure 8(a). Id. §
complaint should be dismissed “if it does not allege
‘enough facts to state a claim to relief that is
plausible on is face.'” Giarratano v.
Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “Facial plausibility is established once the
factual content of a complaint ‘allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.'” Nemet
Chevrolet, 591 F.3d at 256 (quoting Iqbal, 129
S.Ct. at 1949). Detailed factual allegations are not
required, but the facts alleged must be sufficient “to
raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555.
Court has reviewed the complaint in the light most favorable
to the plaintiffs, and finds that the allegations asserted
against defendant Kolb, even when assumed as true, are
insufficient, as a matter of law, to proceed.
Plaintiffs have failed to sufficiently plead their claims
based on 42 U.S.C. § 1983
respect to plaintiffs' claims under § 1983,
plaintiffs allege that defendant Kolb deprived them of their
constitutional right to equal protection, and laws protecting
against a sexually hostile work environment and sexual
discrimination. Defendant Kolb argues (1) that plaintiffs
have failed to state a claim under § 1983 and (2) that,
in any event, he is entitled to qualified immunity.
1983 creates a cause of action for a person deprived of
“any rights, privileges, or immunities secured by the
Constitution and laws” by any person acting under color
of state law. 42 U.S.C. § 1983. “[T]he equal
protection clause confers on a public employee a federal
constitutional right to be free from gender
discrimination.” Beardsley v. Webb, 30 F.3d
524, 530-31 (4th Cir. 1994). “[S]exual harassment has
long been recognized to be a type of gender
discrimination.” Id. Moreover, Title VII
protects against hostile or abusive work environments due to
sexual discrimination and discrimination against an employee
in retaliation for the employee's opposing the
employer's illegal discrimination practices or
participating in Title VII enforcement proceedings. 42 U.S.C.
Court will address each potential theory of liability in
Hostile or Abusive Work Environment
Title VII and . . . § 1983, the elements of the required
prima facie case are the same.” Gairola v. Com. of Va.
Dep't of Gen. Servs., 753 F.2d 1281, 1285-86 (4th
Cir. 1985); see also Beardsley, 30 F.3d at 529
(“Courts may apply the standards developed in Title VII
litigation to similar litigation under § 1983.”).
A plaintiff must prove that:
(1) the subject conduct was unwelcome; (2) it was based on
the sex of the plaintiff; (3) it was sufficiently severe or
pervasive to alter the plaintiff's conditions of
employment and to create an abusive work environment; and (4)
it was imputable on some factual basis to the employer.
Spicer v. Com. of Va. Dep't of Corr., 66 F.3d
705, 710 (4th Cir. 1995); see also Ocheltree v. Scollon
Prods., Inc., 335 F.3d 325, 331 (4th Cir. 2003).
defendant violates Title VII “[w]hen the workplace is
permeated with ‘discriminatory intimidation, ridicule,
and insult,' that is ‘sufficiently severe or
pervasive to alter the conditions of the victim's
employment and create an abusive working environment.”
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 11
S.Ct. 367, 370 (1993) (quoting Meritor Savings Bank, FSB
v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 2405 (1986))
(internal citations omitted); see also Ocheltree,
335 F.3d at 331.
[W]hether an environment is ‘hostile' or
‘abusive' can be determined only by looking at all
the circumstances. These may include the frequency of the
discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee's work performance. The effect on the
employee's psychological well-being is, of course,
relevant to determining whether the plaintiff actually found