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
MILLER AND JONES' MOTION FOR JUDGMENT ON THE PLEADINGS,
GRANTING DEFENDANT OHIO COUNTY BOARD OF EDUCATION'S
MOTION FOR JUDGMENT ON THE PLEADINGS AND DENYING JOINT MOTION
FOR EXTENSION OF TIME TO FILE EXPERT WITNESS INFORMATION AS
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”),
removed this civil action to the United States District Court
for the Northern District of West Virginia on February 1,
2019. 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, the
plaintiffs state that one teacher had to take a leave of
absence, another transferred to a different school, and one
is actively seeking employment elsewhere. Id. at 5.
The 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 (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. The
plaintiffs seek compensatory and punitive damages.
Id. at 26-27. The plaintiffs also seek injunctive
relief requiring defendant OCBOE to: (1) take effective steps
to prevent sex-based discrimination and harassment in its
education programs; (2) fully investigate conduct that may
constitute sex-based harassment; (3) appropriately respond to
all conduct that may constitute sex-based harassment; and (4)
mitigate the effects of harassment. Id. at 27.
Lastly, the plaintiffs seek statutory interest, costs, and
reasonable attorneys' fees. Id. at 27.
Kolb filed a motion to dismiss the plaintiffs' complaint,
under Federal Rule of Civil Procedure 12(b)(6). ECF No. 6.
After full briefing, this Court entered a memorandum opinion
and order granting defendant Kolb's motion to dismiss.
ECF No. 33. The remaining defendants in this action are
defendants OCBOE, Miller, and Jones. In the memorandum
opinion and order as to defendant Kolb, this Court first
found that the plaintiffs failed to sufficiently plead their
claims against defendant Kolb pursuant to § 1983 based
on a hostile or abusive work environment, or retaliation.
Id. at 9-23. Second, this Court found that the
plaintiffs failed to sufficiently plead their claims against
defendant Kolb based on the WVHRA. Id. at 24-26.
Third, this Court held that the plaintiffs failed to
sufficiently plead their claims against defendant Kolb for
intentional infliction of emotional distress. Id. at
29, 2019, defendants Miller and Jones filed a motion for
judgment on the pleadings, pursuant to Federal Rule of Civil
Procedure 12(c). ECF No. 35. In their memorandum in support
of their motion, defendants Miller and Jones state that
because this Court determined that the plaintiffs' claims
against defendant Kolb must be dismissed, the same claims
against them, specifically Counts VII and VIII, should be
dismissed. ECF No. 36 at 3. Moreover, defendants Miller and
Jones assert that the remaining claims (Counts I, II, and
III) should be dismissed since the Court found that the
plaintiffs failed to sufficiently plead any claims against
defendant Kolb. Id. at 6. Specifically, defendants
Miller and Jones contend that since there is no underlying
injury, they cannot be held liable for negligent supervision,
training or investigation of that harassment (Counts I and
II). Id. Similarly, defendants Miller and Jones
state that since there is no underlying tort, there can be no
civil conspiracy; therefore, Count III should be dismissed.
Id. at 6-7. Further, defendants Miller and Jones
state that Counts I, II, and III should be dismissed since
they are immune from liability based on the Governmental Tort
Claims and Insurance Reform Act. Id. at 7-10.
Lastly, defendants Miller and Jones state that they are
immune from liability for all remaining causes of action
since they are entitled to qualified immunity. Id.
29, 2019, defendant OCBOE also filed a motion for judgment on
the pleadings. ECF No. 37. In its memorandum in support of
its motion, defendant OCBOE stated that since this Court
already determined that the plaintiffs' allegations are
insufficient to sustain a claim for sexual harassment or
retaliation against defendant Kolb, the plaintiffs'
claims must be dismissed. ECF No. 38 at 2-4. With respect to
the plaintiffs' claims under Title IX, more specifically
Counts V and VI, defendant OCBOE asserts that since the
plaintiffs' claims fail under Title VII and the WVHRA,
their claims also fail under Title IX due to their failure to
plead the necessary elements of a sexual harassment or
retaliation claim. Id. at 4-6. Moreover, defendant
OCBOE states that the plaintiffs' claims for common law
negligence must be dismissed because they are duplicative of
the plaintiffs' other sexual harassment claims and are
thus preempted by statute. Id. at 6-7. Defendant
OCBOE asserts that even if the claims are not preempted, in
light of this Court's determination that defendant
Kolb's actions as alleged in the complaint did not
constitute sexual harassment, it is entitled to immunity
under the West Virginia Governmental Tort Claims Act.
Id. at 8. Also, defendant OCBOE asserts that because
the OCBOE did not breach any duty owed to them, it cannot be
held liable for negligence. Id. at 8-9. Lastly,
defendant OCBOE contends that the plaintiffs' claims for
conspiracy should be dismissed, because the Court has not
found an underlying tort supporting that claim. Id.
plaintiffs then filed a response in opposition to the motions
for judgment on the pleadings of defendant OCBOE, and
defendants Miller and Jones. ECF No. 40. In their response,
the plaintiffs first state that the Court should deny
defendant OCBOE's motion to dismiss as to Counts I, II,
and V because defendant OCBOE was negligent and deliberately
indifferent to the plaintiffs' report of sexual
harassment. Id. at 8-16. The plaintiffs concede that
since defendant Kolb's actions as alleged in the
complaint were determined by this Court not sufficiently
severe or pervasive, judgment on the pleadings is warranted
for the plaintiffs' claims for conspiracy, intentional
infliction of emotional distress, Title IX-Retaliation,
§ 1983, and violations of the WVHRA. Id. at 16.
The plaintiffs also indicate that they have no objection to
dismissal of defendants Miller and Jones as individual
defendants. Id. at 16-17.
OCBOE then filed a reply. ECF No. 41. In its reply, defendant
OCBOE contends that since the Court found that the plaintiffs
have not sufficiently alleged the underlying claims, the
Court must find that the claims against it must be dismissed,
citing Klemencic v. Ohio State Univ., 263 F.3d 504,
511 (6th Cir. 2001), and Webber v. Mefford, 43 F.3d
1340 (10th Cir. 1994). Id. at 2-4. Moreover,
defendant OCBOE states that the plaintiffs have not presented
any reason why the Court should revisit its rulings regarding
defendant Kolb's alleged actions. Id. at 5.
Miller and Jones also filed a reply. ECF No. 42. In their
reply, the defendants indicate that the plaintiffs do not
object to their dismissal as individual defendants,
referencing the plaintiffs' memorandum in opposition to
the motion to dismiss of defendants Miller and Jones.
Id. at 1.
motion for judgment on the pleadings is permitted under
Federal Rule of Civil Procedure 12(c). Such a motion is
intended as an avenue by which parties may dispose of a case
on the basis of the underlying substantive merit of the
parties' claims as they are revealed in the formal
pleadings “after pleadings are closed, but early enough
not to delay trial.” Fed.R.Civ.P. 12(c); 5C Wright
& Miller, Federal Practice and Procedure Civil
3d § 1367 (2007). When considering a motion for judgment
on the pleadings pursuant to Rule 12(c), a court should apply
the same standard as when considering a motion to dismiss
pursuant to Rule 12(b)(6). See Burbach Broadcasting Co.
of Del. v. Elkins Radio Corp., 278 F.3d I401, 405-06
(4th Cir. 2002).
assessing a motion to dismiss for failure to state a claim
under Rule 12(b)(6) of the Federal Rules of Civil Procedure,
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, 556 U.S. 662, 678 (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).
often been said that 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
non-moving party 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.
complaint should be dismissed “if it does not allege
‘enough facts to state a claim to relief that is
plausible on its 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, 556
U.S. at 678). 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.
Counts III, IV, VI, VII, VIII, and IX of the
plaintiffs' complaint are dismissed as to all defendants,
including defendant OCBOE, based on the plaintiffs'
concession. All counts of the plaintiffs' complaint are
dismissed as they relate to defendants Miller and Jones as
individual defendants based on the plaintiffs'
plaintiffs concede that given the Court's ruling in its
memorandum opinion and order granting defendant Kolb's
motion to dismiss (ECF No. 33), judgment on the pleadings is
warranted for the plaintiffs' claims for conspiracy
(Count III), intentional infliction of emotional distress
(Count IV), Title IX-Retaliation (Counts VI), § 1983
liability (Counts VII and VIII), and violations of the WVHRA
(Count IX). ECF No. 40 at 16.
this Court dismisses Counts III, IV, VI, VII, VIII, and IX of
the plaintiffs' complaint as to all defendants, including
the plaintiffs state that they have no objection to dismissal
of defendants Miller and Jones as individual parties. ECF No.
40 at 17.
this Court dismisses all counts of the plaintiffs'
complaint as they relate to ...