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Ammirante v. Ohio County Board of Education

United States District Court, N.D. West Virginia

July 3, 2019

LINDSAY AMMIRANTE, AUTUMN TROULLOS and RACHEL MILLER, Plaintiffs,
v.
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

         I. Background

         The 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.

         Defendant 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.

         Plaintiffs 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.

         Defendant 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.

         II. Applicable Law

         In 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).

         The 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. § 1357.

         A 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.

         III. Discussion

         This 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.

         A. Plaintiffs have failed to sufficiently plead their claims based on 42 U.S.C. § 1983

         With 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.

         Section 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. § 2000e-3(a).

         The Court will address each potential theory of liability in turn.[1]

         1. Hostile or Abusive Work Environment

         “Under Title VII and . . . § 1983, the elements of the required prima facie case are the same.”[2] 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).

         A 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 the ...

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