Weissenbach v. Tuscaloosa County School System et al

Filing 37

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 11/8/2018. (PSM)

FILED
2018 Nov-08 PM 02:49
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
ABIGAIL WEISSENBACH,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
TUSCALOOSA COUNTY
SCHOOL SYSTEM, et al.,
Defendants.

7:17-cv-001642-LSC

Memorandum of Opinion
Plaintiff Abigail Weissenbach (“Weissenbach”) brings this action
against Defendants Tuscaloosa County School System (“Tuscaloosa
County”), Joe Bradley Petrey, Jr. (“Petrey”), Schmitt Moore (“Moore”), James
Barnett (“Barnett”), Gary Mims (“Mims”), Don Presley (“Presley”), Charles
Orr (“Orr”), Randy Smalley (“Smalley”), Bill Copeland (“Copeland”), Laura
McBride (“McBride”), Marcy Burroughs (“Burroughs”), Thad Fitzpatrick
(“Fitzpatrick”),

and

Elizabeth

Swinford

(“Swinford”)

(collectively

“Defendants”), alleging claims under Alabama state law, 20 U.S.C. § 1681,
et seq. (“Title IX”), and 42 U.S.C. § 1983. All claims relate to an alleged
sexual relationship between Weissenbach and her high school teacher

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Petrey. Before the Court are motions to dismiss filed by Tuscaloosa County
and Moore, Barnett, Mims, Presley, Orr, Smalley, and Copeland (collectively
“Board Members”) (doc. 29) and Burroughs and Fitzpatrick (doc. 30). 1 The
motions have been fully briefed by the parties and are ripe for review. For
the reasons described more fully herein, Defendants Tuscaloosa County and
the Board Members’ motion to dismiss (doc. 29) and Defendants Burroughs
and Fitzpatrick’s motion to dismiss (doc. 30) are due to be granted.
I.

BACKGROUND 2
Weissenbach is a former high school student of Brookwood High

School in Tuscaloosa County, Alabama. Weissenbach was born in 1996,
and from the 2013 to 2015 school years she had a sexual relationship with
Petrey, who was her high school history and psychology teacher.
During high school, Weissenbach took dance classes at McCalla
Dance Academy. At those classes, Weissenbach talked about Petrey as if
he were her boyfriend. When her dance teachers learned that Petrey was

1

Both sets of defendants have adopted and incorporated by reference the grounds for
dismissal set forth in the other defendants’ motion. (See Doc. 29 at 13 & Doc. 30 at 5.)

2

In evaluating a motion to dismiss, this Court “accept[s] the allegations in the complaint
as true and construe[s] the facts in the light most favorable to the plaintiff.” Johnson v.
Midland Funding, LLC, 823 F.3d 1334, 1337 (11th Cir. 2016). The following facts, are
therefore, taken from the allegations contained in Weissenbach’s Amended Complaint,
and the Court makes no ruling on their veracity.

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actually Weissenbach’s teacher, they reported their concerns to Brookwood
High School administrators. During a conference call between the dance
teachers, Principal McBride, Vice Principal Burroughs, and Vice Principal
Fitzpatrick, the administrators implied that they were upset about
Weissenbach and Petrey’s relationship and that they would make sure that
it did not continue.
Following this conversation, Burroughs told Weissenbach’s dance
teachers that the administrators had informed the Tuscaloosa County School
Board about their complaints and that the situation was being investigated.
However, during the next school year, the dance teachers learned from other
students that Weissenbach and Petrey were continuing to eat breakfast and
lunch together at school. In July 2015, illicit photos of Weissenbach and
Petrey were posted to the school Facebook page and Twitter, and a link to
a

cloud-based

photo-sharing

account

with

other

photographs

of

Weissenbach and Petrey were also made widely available.
According to Weissenbach’s Amended Complaint, the remaining
defendants not discussed in the preceding facts are members of the
Tuscaloosa County School Board. Specifically, Weissenbach alleges that
Defendants Moore, Barnett, Mims, Presley, Orr, Smalley, and Copeland
were Tuscaloosa County School Board members during Weissenbach and
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Petrey’s relationship. Swinford was the Superintendent of the Tuscaloosa
County School System.
II.

STANDARD OF REVIEW
A. Subject Matter Jurisdiction
The Court must “inquire into whether it has subject matter jurisdiction

at the earliest possible stage in the proceedings.” Univ. of S. Ala. v. Am.
Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999). “[B]ecause the
constitutional standing doctrine stems directly from Article III’s ‘case or
controversy’ requirement, this issue implicates . . . subject matter jurisdiction,
and accordingly must be addressed as a threshold matter regardless of
whether it is raised by the parties.” Duty Free Americas, Inc. v. Estee Lauder
Companies, Inc., 797 F.3d 1248, 1271 (11th Cir. 2015) (quoting Nat’l Parks
Conservation Ass’n v. Norton, 324 F.3d 1229, 1242 (11th Cir. 2003)). “Article
III standing must be determined as of the time at which the plaintiff’s
complaint is filed,” and “the standing inquiry requires careful judicial
examination of a complaint’s allegations to ascertain whether the particular
plaintiff is entitled to an adjudication of the particular claims asserted.”
Hollywood Mobile Estates Ltd. v. Seminole Tribe of Fla., 641 F.3d 1259,
1265 (11th Cir. 2011) (quoting Focus on the Family v. Pinellas Suncoast
Transit Auth., 344 F.3d 1263, 1275 (11th Cir. 2003) and Allen v. Wright, 468
Page 4 of 46

U.S. 737, 752 (1984)). “[I]t is well settled that a federal court is obligated to
inquire into subject matter jurisdiction sua sponte whenever it may be
lacking.” Univ. of S. Ala., 168 F.3d at 410. “The party invoking federal
jurisdiction bears the burden of proving the essential elements of standing,
although ‘[a]t the pleading stage, general factual allegations of injury
resulting from the defendant’s conduct may suffice[.]’” DiMaio v. Democratic
Nat’l Comm., 520 F.3d 1299, 1301 (11th Cir. 2008) (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992)).
B. Rule 12(b)(6)
In general, a pleading must include “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
However, in order to withstand a motion to dismiss pursuant to Fed. R. Civ.
P. 12(b)(6), a complaint “must plead enough facts to state a claim to relief
that is plausible on its face.” Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 1347–
48 (11th Cir. 2016) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)) (internal quotation marks omitted). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Stated another way, the factual
allegations in the complaint must be sufficient to “raise a right to relief above
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the speculative level.” Edwards v. Prime, Inc., 602 F.3d 1276, 1301 (11th Cir.
2010). A complaint that “succeeds in identifying facts that are suggestive
enough to render [the necessary elements of a claim] plausible” will survive
a motion to dismiss. Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1296 (11th Cir.
2007) (quoting Twombly, 550 U.S. at 556) (internal quotation marks omitted).
In evaluating the sufficiency of a complaint, this Court first “identif[ies]
pleadings that, because they are no more than conclusions, are not entitled
to the assumption of truth.” Iqbal, 556 U.S. at 679. This Court then
“assume[s] the[] veracity” of the complaint’s “well-pleaded factual
allegations” and “determine[s] whether they plausibly give rise to an
entitlement to relief.” Id. Review of the complaint is “a context-specific task
that requires [this Court] to draw on its judicial experience and common
sense.” Id. If the pleading “contain[s] enough information regarding the
material elements of a cause of action to support recovery under some
‘viable legal theory,’” it satisfies the notice pleading standard. Am. Fed’n of
Labor & Cong. of Indus. Orgs. v. City of Miami, 637 F.3d 1178, 1186 (11th
Cir. 2011) (quoting Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678,
683–84 (11th Cir. 2001)).
III.

DISCUSSION
A. Standing as to Request for Injunctive Relief
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Although not addressed by the parties, the Court must first determine,
as a threshold matter, whether Weissenbach has standing to assert her
claims against the Defendants. See Nat’l Park Conservation Ass’n, 324 F.3d
at 1242. The Court determines standing according to differing strands of
analysis: the constitutional requirements under Article III and prudential
limitations on the exercise of otherwise constitutionally allowed claims. Elend
v. Basham, 471 F.3d 1199, 1205–06 (11th Cir. 2006). To establish standing
under Article III, a plaintiff must show (1) “an injury in fact,” (2) “a causal
connection between the injury and the conduct complained of,” and (3) that
“it [is] likely, as opposed to merely speculative that the injury will be
redressed by a favorable decision.” Lujan, 504 U.S. at 560–61 (internal
quotation marks and citations omitted). The injury in fact must be “concrete
and particularized” and “actual or imminent, not conjectural or hypothetical.”
Id. at 560. (internal quotation marks and citations omitted). Also, the causal
connection must be “fairly traceable to the challenged action of the
defendant, and not the result of the independent action of some third party
not before the court.” Id. (internal quotation marks, citations, and alterations
omitted); see also Church v. City of Huntsville, 30 F.3d 1332, 1337 (11th Cir.
1994) (“Because injunctions regulate future conduct, a party has standing to
seek injunctive relief only if the party alleges, and ultimately proves, a real
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and immediate—as opposed to a merely conjectural or hypothetical—threat
of future injury.”). Under prudential requirements, “a plaintiff cannot raise the
claims of third parties; cannot claim standing based on a generalized
grievance; and must raise a claim within the zone of interest covered by a
statutory conferral of standing.” Elend, 471 F.3d at 1206 (citing Cone Corp.
v. Fla. Dep’t of Transp., 921 F.2d 1190, 1203–10 (11th Cir. 1991)).
In her Amended Complaint, Weissenbach not only asks for monetary
damages but also for declaratory and injunctive relief. Specifically,
Weissenbach asks the Court to enjoin the Defendants from continuing to
violate her rights under Title IX, the Equal Protection Clause of the
Fourteenth Amendment, and Alabama state law. (See Doc. 28 at 19.)
Weissenbach also asks the Court to “[i]ssue an injunction ordering these
Defendants: (1) not to engage in gender discrimination and sexual
harassment; (2) . . . to establish written policies and procedures against such
discriminatory conduct; (3) and to establish a grievance procedure for
reporting such conduct[.]” (Id.)
Assuming “as true all material allegations contained in the complaint
and constru[ing] the complaint in a light most favorable to the complaining
party,” Elend, 471 F.3d at 1208, Weissenbach has not fulfilled her burden to
show that she has standing to pursue injunctive relief against Defendants.
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As Weissenbach is a former student of Brookwood High School, she has
presented no facts to indicate that an injunction against Tuscaloosa County,
its board members, or its administrators would prevent future harm or
remedy the past harm that she allegedly suffered. Moreover, she has not
alleged that she faces any possibility of real or imminent future harm resulting
from any of the Defendants’ alleged conduct. See Williams v. Bd. of Regents
of Univ. Sys. of Ga., 477 F.3d 1282, 1303 (11th Cir. 2007) (affirming district
court’s dismissal of Title IX claims for injunctive relief when plaintiff no longer
attended college where sexual harassment allegedly occurred). Thus, the
Court cannot conclude that an injunction would prevent Weissenbach from
suffering any future harm. Where, as here, a plaintiff cannot show that she
is likely to suffer future harm from the defendants’ conduct, she “does not
have standing to seek prospective relief even if [s]he has suffered a past
injury.” 31 Foster Children v. Bush, 329 F.3d 1255, 1265 (11th Cir. 2003).
To the extent that Weissenbach is seeking injunctive relief to prevent
Defendants from harming current Tuscaloosa County students, these claims
fail because they raise the rights of third parties not before the Court. See
Harris v. Evans, 20 F.3d 1118, 1121 (11th Cir. 1994) (noting the general
prohibition against third-party standing). The general prohibition against
litigants asserting the rights of third parties “assumes that the party with the
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right has the appropriate incentive to challenge (or not challenge)
governmental action and to do so with the necessary zeal and appropriate
presentation.” Kowalski v. Tesmer, 543 U.S. 125, 129 (2004). Even so, the
doctrine of “third-party standing” allows a party who has standing in his own
right to assert the rights of another upon “two additional showings.” Id. at
130. The first question is “whether the party asserting the right has a ‘close’
relationship with the person who possesses the right. Second, [it must be]
considered whether there is a ‘hindrance’ to the possessor’s ability to protect
his own interests.” Id. (citations omitted). Here, Weissenbach has made no
showing that she maintains a close relationship with current students within
the Tuscaloosa County School System. 3 Moreover, even if she were able to
make such a showing, there is nothing that suggests that there would be a
hindrance to those students pursuing an action in their own name.
Accordingly, Weissenbach lacks standing to pursue injunctive relief, and her
claims seeking injunctive relief are due to be dismissed.
B. State-Law Claims

3

Nor would she likely be able to make such a showing. The type of close relationship
required is more than that of being a close friend. The relationship must be related to
the right that is being asserted. See Singleton v. Wulff, 428 U.S. 106, 114–15 (1976).
For example, an attorney may have third-party standing to assert the rights of his clients
to obtain legal representation, U.S. Dep’t. of Labor v. Triplett, 494 U.S. 715, 720 (1990),
or a doctor may have standing to litigate his patients’ right to obtain an abortion.
Singleton, 428 U.S. at 118.

Page 10 of 46

Tuscaloosa County, the Board Members, Burroughs, and Fitzpatrick
all move to dismiss Weissenbach’s state-law claims against them. They
argue that Weissenbach’s claims against them for negligence, wantonness,
and intentional infliction of emotional distress are barred by immunity.
Specifically, these defendants raise two types of immunity: State immunity
with respect to the state law claims brought against Tuscaloosa County and
the Board Members and administrators in their official capacities and stateagent immunity with respect to the state law claims brought against the
Board Members, Burroughs, and Fitzpatrick in their individual capacities.
Burroughs and Fitzpatrick also move to dismiss Weissenbach’s state-law
claims for failure to state a claim. The Court will address each argument in
turn.
1. State Immunity
Tuscaloosa County argues that Weissenbach’s state-law claims
against it are due to be dismissed because it is entitled to absolute immunity
with respect to those claims. The Alabama Constitution provides “[t]hat the
State of Alabama shall never be made a defendant in any court of law or
equity.” Ala. Const. art. I, § 14. This immunity extends to state agencies. See
Ex parte Hale Cty. Bd. of Educ., 14 So. 3d 844, 848 (Ala. 2009). Because,
under Alabama law, county boards of education are considered “local
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agencies of the State, they are clothed in constitutional immunity from suit.”
Id. This immunity is absolute and a plaintiff is completely barred from bringing
any state-law action for monetary, injunctive, or declaratory relief against a
county school board. See Bd. of School Comm’rs of Mobile Cty. v. Weaver,
99 So. 3d 1210, 1217 (Ala. 2012).
As the Amended Complaint describes Defendant Tuscaloosa County
as “the governing body for the Tuscaloosa County School System in
Tuscaloosa County, Alabama” (doc. 28 ¶ 2), the Court concludes that
Defendant Tuscaloosa County is in fact the Tuscaloosa County School
Board. Because county boards of education are entitled to absolute
immunity, Defendant Tuscaloosa County’s motion to dismiss the state lawclaims against it is due to be granted.
The Board Members, Fitzpatrick, and Burroughs also argue that they
are entitled to absolute immunity with respect to Weissenbach’s state-law
claims against them in their official capacities. The Court agrees. “[A]ctions
for damages against State agents in their official or representative capacities
are considered actions to recover money from the State and are barred by
State immunity under § 14.” Ex parte Moulton, 116 So. 3d 1119, 1140 (Ala.
2013). Thus, a plaintiff may not bring claims for monetary relief against a
county school board member in his or her official capacity in this
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circumstance. See Ex parte Montgomery Cty. Bd. of Educ., 88 So. 3d 837,
842 (Ala. 2012). This rule extends to a school board’s employees. See
Matthews v. Ala. Agric. & Mech. Univ., 787 So. 2d 691, 697 (2000)
(concluding that university employees sued in their official capacities for
monetary damages are entitled to absolute immunity under § 14). However,
§ 14 does not prohibit “actions brought under the Declaratory Judgments Act
. . . seeking construction of a statute and its application in a given situation”
or actions brought to enjoin “[s]tate officials in their representative capacity
where it is alleged that they had acted fraudulently, in bad faith, beyond their
authority, or in a mistaken interpretation of law.” Moulton, 116 So. 3d at 1131,
1141 (internal quotation marks and citations omitted).
Here, the Court has already held that Weissenbach’s claims for
injunctive relief are due to be dismissed for lack of standing. Moreover,
Weissenbach’s request for a declaratory judgment does not fall within the
declaratory judgment exception to § 14. Weissenbach asks the Court to
“[g]rant [her] a declaratory judgment holding that the actions of the
Defendants . . . violated . . . Alabama state laws.” (Doc. 28 at 19.) It is not a
request for “construction of a statute.” Moulton, 116 So. 3d 1131. Thus, to
the extent that Weissenbach’s state-law claims are brought against the
Board Members in their official capacities, their motion to dismiss is due to
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be granted. Moreover, as Burroughs and Fitzpatrick are employees of the
Tuscaloosa County School Board, their motion to dismiss Weissenbach’s
state-law claims against them in their official capacities is also due to be
granted.
2. State-Agent Immunity
The Board Members, Burroughs, and Fitzpatrick also argue that
Weissenbach’s state-law claims against them in their individual capacities
are barred by state-agent immunity. State agents are immune from civil
liability when the conduct complained of involves the formulating of plans,
policies, or designs, when the decisions complained of are administrative in
nature, such as the “hiring, firing, transferring, assigning, or supervising [of]
personnel,” when the agent is discharging duties imposed on an agency by
statute, rule, or regulation, and when the agent is exercising judgment in
enforcing criminal law, releasing prisoners or persons of unsound mind, or
educating students. Ex parte Cranman, 792 So. 2d 392, 405 (Ala. 2000). A
state agent is not immune, however, “when the [s]tate agent acts willfully,
maliciously, fraudulently, in bad faith, beyond his or her authority, or under a
mistaken interpretation of law.” Id. Moreover, a state agent is not immune
“when the Constitution or laws of the United States, or the Constitution of
[Alabama], or laws, rules, or regulations of [Alabama] enacted or
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promulgated for the purpose of regulating the activities of a governmental
agency require otherwise.” Id.
The Alabama Supreme Court has established a burden-shifting
process governing the assertion of state-agent immunity. First, the state
agent bears the burden of showing that he was engaged in a function that
gives rise to state-agent immunity. Giambrone v. Douglas, 874 So. 2d 1046,
1052 (Ala. 2003). Once he has done so, the burden shifts to the plaintiff to
show that one of the two exceptions to state-agent immunity recognized in
Cranman applies. See Ex parte Kennedy, 992 So. 2d 1276, 1282–83 (Ala.
2008).
The Board Members and administrators argue that they are entitled to
state-agent immunity because the conduct Weissenbach complains of
relates to their supervision of personnel and exercise of judgment in
educating students. (See Doc. 29 at 7.) According to the Amended
Complaint, the Board Members negligently hired and supervised Petrey and
failed to protect students from Petrey after being notified of his inappropriate
conduct. Moreover, the Amended Complaint alleges that the Board Members
failed to terminate or place Petrey on leave even as Petrey’s relationship with
Weissenbach continued. Weissenbach makes the same allegations against
Burroughs and Fitzpatrick. Weissenbach also alleges that all of these
Page 15 of 46

defendants had a duty to report any suspected child abuse under Alabama’s
mandatory reporting statute, Ala. Code § 26-14-3.
Weissenbach does not dispute that these actions relate to the
Defendants’ supervision of Petrey or exercise of judgment in educating
students. (See Doc. 34 at 16.) Rather, she argues that through the
allegations in the Amended Complaint she has met her burden to show that
one of the exceptions to state-agent immunity applies.
The Court agrees that the Board Members and administrators have
met their initial burden under the Cranman framework. All of Weissenbach’s
claims against them arise from their alleged mishandling of the investigation
into Petrey, their failure to remove him from the school setting pending that
investigation, and their failure to properly report Weissenbach’s claims.
These actions relate to the supervision of personnel and exercise of
judgment in educating students, which are two of the immunized functions
specifically described in Cranman. See Cranman, 792 So. 2d at 405.
Moreover, Weissenbach acknowledges in the Amended Complaint that: “All
actions complained of herein by the plaintiff against [each individual
Defendant] occurred within the line and scope of [his or her] employment and
representative capacity with Tuscaloosa County School System in
Tuscaloosa Alabama.” (See Doc. 28 at ¶¶ 5, 6, 7, 8, 9 10, 11, 13, 14.)
Page 16 of 46

Therefore, unless one of the exceptions to state-agent immunity applies,
Weissenbach’s state-law claims against these defendants are barred.
Weissenbach does not allege that any federal or state law requires the
Board Members and administrators to be subject to suit in their individual
capacities. Thus, they can only be liable for Weissenbach’s state-law claims
if she has sufficiently alleged that they “acted willfully, maliciously,
fraudulently, in bad faith, or beyond [their] authority.” See Kennedy, 992 So.
2d at 1282. Weissenbach has not done so with regards to her claims for
negligence and wantonness. Rather than allege that the Defendants acted
beyond their authority when they failed to properly investigate her claims,
Weissenbach asserts that their actions were taken within the scope of their
employment. She has also failed to allege that these actions were contrary
to any Tuscaloosa County policy. See Kennedy, 992 So. 2d at 1282–83
(“One of the way in which a plaintiff can show that a State agent acted
beyond his or her authority is by proffering evidence that the State agent
failed to ‘discharge duties pursuant to detailed rules or regulations, such as
those stated on a checklist.’” (quoting Giambrone, 874 So. 2d at 1052)).
Moreover, the facts alleged do not support a finding that the Board
Members and administrators’ allegedly negligent and wanton actions were
done willfully or in bad faith. With respect to Burroughs and Fitzpatrick, the
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facts alleged show that they did take some steps to address the dance
teachers’ concerns by holding the telephone conference and having a follow
up conversation with the dance teachers. Thus, it does not appear that they
were acting in bad faith. Additionally, the Amended Complaint does not
contain any factual allegations that suggests that the Board Members’ failure
to terminate or suspend Petrey was malicious or done in bad faith. Therefore,
the Board Members and administrators’ motions to dismiss Weissenbach’s
negligence and wantonness claims against them are due to be granted
because they are barred by state-agent immunity. However, the Board
Members and administrators are not entitled to state-agent immunity with
respect to Weissenbach’s claim for intentional infliction of emotional distress
because it is an intentional tort and officials do not receive state-agent
immunity for willful or malicious conduct. See Cranman, 792 So. 2d at 402
n.13.
3. Failure to State a Claim
a. Intentional Infliction of Emotional Distress
Burroughs, Fitzpatrick, and the Board Members also argue that
Weissenbach’s intentional infliction of emotional distress claims against
them are due to be dismissed for failure to state a claim. In Alabama,
intentional infliction of emotional distress is generally referred to as the tort
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of outrage. See Ex Parte Crawford & Co., 693 So. 2d 458, 460 (Ala. 1997).
Therefore, the Court will refer to the tort at issue as the tort of outrage, even
though the Amended Complaint styles this claim as one for intentional
infliction of emotional distress.
To succeed on an action based on outrage, Weissenbach must prove
(1) the Defendants intended to inflict emotional distress, or knew or should
have known that emotional distress would likely result from their conduct; (2)
the Defendants’ conduct was extreme and outrageous; (3) the Defendants’
actions caused her distress; and (4) the distress was severe. Martin v.
Hodges Chapel, LLC, 89 So. 3d 756, 763 (Ala. Civ. App. 2011). Outrage is
a limited tort, and the Alabama Supreme Court has traditionally recognized
it in only three situations: “(1) wrongful conduct in the family-burial context;
(2) barbaric methods employed to coerce an insurance settlement; and (3)
egregious sexual harassment.” Little v. Robinson, 72 So. 3d 1168, 1172 (Ala.
2011) (internal citations omitted).
The Board Members and administrators argue that because they are
not accused of directly causing harm to Weissenbach they could not
plausibly have inflicted the emotional distress she allegedly suffered. The
Court agrees that the purported misconduct alleged against the Board
Members, Burroughs, and Fitzpatrick does not meet the high standard
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required to state a claim for intentional infliction of emotional distress. While
Weissenbach has plausibly alleged that Petrey engaged in egregious sexual
harassment, she has made no such allegations against the Board Members
and administrators. Her allegations that they failed to properly investigate
Petrey after the dance teachers’ complaint does not rise to the level of
outrage required under Alabama law. Although perhaps the school officials
could have launched a more thorough investigation into the dance teachers’
claims, the facts alleged do suggest that they did take some steps to
investigate Petrey. Therefore, Weissenbach has not sufficiently alleged that
the Board Members, Burroughs, and Fitzpatrick acted in such an “extreme
and outrageous” manner as to support her intentional infliction of emotional
distress claims against them. As such, Weissenbach’s claims for intentional
infliction

of

emotional

distress

against

the Board Members

and

administrators in their individual capacities are due to be dismissed.
b. Negligence and Wantonness Claims
As an alternative to their state-agent immunity argument, Burroughs
and Fitzpatrick also argue that Weissenbach’s negligence and wantonness
claims against them fail as a matter of law. Specifically, they argue that they
cannot be held liable for the negligent and wanton hiring or supervision of

Page 20 of 46

Petrey and that there is no private right of action for failure to report under
Ala. Code § 26-14-3. The Court will address each argument in turn.
As part of her negligence and wantonness claims, Weissenbach
alleges that Tuscaloosa County, its Board Members, and administrators both
negligently hired Petrey and “negligently and wantonly acted to protect [him]
by not terminating him or at least placing him on a leave of absence.” (Doc.
28 at ¶¶ 29, 30.) Burroughs and Fitzpatrick argue that as a matter of law they
cannot be held liable for these alleged acts. The Court agrees. Ala. Code §
16-8-23 provides that the county board of education, upon the
recommendation of the superintendent, has the sole power to hire public
school teachers. See Ala. Code § 16-8-23. It further provides that the county
board is the entity with the power to suspend or dismiss teachers accused of
misconduct. Id. It is axiomatic that a defendant cannot be held liable for the
negligent hiring of an individual that he did not possess the power to hire.
Moreover, as Burroughs and Fitzpatrick did not have the authority to fire or
suspend Petrey, they cannot be held liable for failing to do so. Accordingly,
to the extent that Weissenbach is seeking to bring claims against Burroughs
and Fitzpatrick for negligently hiring Petrey or for negligently and wantonly
failing to fire or suspend him, she cannot do so. Therefore, even if Burroughs
and Fitzpatrick are not entitled to state-agent immunity, Weissenbach has
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failed to state a claim against them as to any negligence or wantonness
surrounding Petrey’s hiring or the failure to suspend or fire him.
Burroughs and Fitzpatrick also argue that they cannot be liable for any
claims of negligent supervision that Weissenbach may have brought against
them because Alabama law does not recognize claims brought against a
supervisory employee for the negligent supervision of a subordinate. The
Court agrees with the reasoning of several other federal district courts that
have held that Alabama law does not recognize such a cause of action. See,
e.g., Hand v. Univ. of Ala. Bd. of Trs., 304 F. Supp. 3d 1173, 1182 (N.D. Ala.
2018) (granting motion to dismiss negligence claims against supervisors
premised on negligent training and supervision of their subordinates); Doe v.
City of Demopolis, 799 F. Supp. 2d 1300, 1312 (S.D. Ala. 2011); Ott v. City
of Mobile, 169 F. Supp. 2d 1301, 1314–15 (S.D. Ala. 2001) (granting
summary judgment on negligent supervision claim because “Alabama
recognizes no cause of action against a supervisor for negligent failure to
supervise or train a subordinate”). The cause of action for negligent
supervision is premised upon the fact that the master in a master-servant
relationship may be “held responsible for his servant’s incompetency.” See
Lane v. Central Bank of Ala., N.A., 425 So. 1098, 1100 (Ala. 1983). High
school administrators, such as Vice Principals Burroughs and Fitzpatrick, are
Page 22 of 46

not in a master-servant relationship with the teachers at their school. Instead,
they are also employees of the Board of the Education. Accordingly, to the
extent that any of the negligence and wantonness claims against Burroughs
and Fitzpatrick are not based directly on their own negligence, but instead,
are based on claims of negligent supervision, those claims fail to state a
claim.
Finally, Burroughs and Fitzpatrick argue that they cannot be found
liable for negligently or wantonly failing to report Petrey under Ala. Code
§ 26-14-3, which requires educators to report suspected child abuse. Within
Weisenbach’s claims for negligence and wantonness, she alleges that the
Defendants negligently and wantonly failed to report Petrey’s suspected
child abuse as required under the mandatory reporting statute. The Alabama
Supreme Court has held that the mandatory reporting statute does not create
a private right of action and that a plaintiff may not bring negligence or
wantonness claims based on violations of this statute. See C.B. v. Bobo, 659
So. 2d 98, 101–02 (Ala. 1995). Thus, to the extent that Weissenbach brings
negligence and wantonness claims against Burroughs, Fitzpatrick, and the
Board Members under Ala. Code § 26-14-3, those claims fail as a matter of
law.

Page 23 of 46

C. Title IX Claims4
Count III of the Amended Complaint asserts Title IX claims against
Tuscaloosa County, the Board Members and administrators in their
individual capacities, and the Board Members and administrators in their
official capacities. Title IX states that “[n]o person . . . shall, on the basis of
sex, be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any education program or activity receiving
Federal financial assistance.” 20 U.S.C. § 1681(a). “Although Title IX does
not expressly permit private enforcement suits, the Supreme Court has found
an implied private right of action for individuals to enforce the mandates of
Title IX” and “that private individuals can obtain monetary damages” under
Title IX. Williams, 477 F.3d at 1293. The Board Members, Burroughs, and
Fitzpatrick move to dismiss the Title IX claims brought against them in their
individual capacities. Weissenbach concedes that there is no individual
liability under Title IX. See Hartley v. Parnell, 193 F.3d 1263, 1270 (11th Cir.
1999) (“Individual school officials . . . may not be held liable under Title IX.”).
As such, the Title IX claims brought against all of the Defendants in their
individual capacities are due to be dismissed.

4

Tuscaloosa County only moves the Court to dismiss Weissenbach’s Title IX claims
against it on the grounds of judicial estoppel. This ground for dismissal will be discussed
below.

Page 24 of 46

The Board Members, Burroughs, and Fitzpatrick also move to dismiss
the Title IX claims brought against them in their official capacities. They
argue that these claims are duplicative of the Title IX claims brought against
Tuscaloosa County. “[W]hen an [official] is sued . . . in his or her official
capacity, the suit is simply ‘another way of pleading an action against an
entity of which an [official] is an agent.’” See Busby v. City of Orlando, 931
F.2d 764, 776 (11th Cir. 1991) (quoting Kentucky v. Graham, 473 U.S. 159,
165 (1985)). Therefore, suits against an individual defendant in his official
capacity and against his governmental employer are redundant. See id. (“To
keep both the City and the officers sued in their official capacity as
defendants in this case would have been redundant and possibly confusing
to the jury.”). As a result, courts throughout this Circuit have routinely
dismissed official capacity claims against individual defendants when the
entity that individual represents has also been named a defendant for the
same alleged violation. See M.R. v. Bd. of Sch. Comm’rs of Mobile Cty., Civil
Action No. 11-0245-WS-C, 2012 WL 2931263 at *2 n.5 (S.D. Ala. July 18,
2012) (collecting cases). Although most of these cases involve identical
§ 1983 claims being asserted against individual defendants and their
employers, the same logic extends to official capacity claims brought under
Title IX. This is especially true due to the fact that Title IX claims may only
Page 25 of 46

be asserted against Title IX recipient school districts and not individual
defendants. See Floyd v. Waiters, 133 F.3d 786, 789 (11th Cir. 1998),
vacated by 525 U.S. 802 (1998), reinstated by 171 F.3d 1264 (11th Cir.
1999) (finding that grant recipients are the only ones who can be held liable
under Title IX). Therefore, Weissenbach’s Title IX claims against the Board
Members and administrators in their official capacities are redundant and
their motion to dismiss those claims is due to be granted.
D. Section 1983 Claims
Count IV of the Amended Complaint brings claims against Tuscaloosa
County, the Board Members, Burroughs, and Fitzpatrick, pursuant to 42
U.S.C. § 1983, for violations of the Equal Protection Clause. Each of these
defendants has moved to dismiss Weissenbach’s equal protection claims.
1. Claims Against Tuscaloosa County
Tuscaloosa County moves the Court to dismiss Weissenbach’s Equal
Protection Clause claims against it. 5 “Section 1983 provides a remedy
against ‘any person’ who, under color of state law, deprives another of rights

5

Additionally, the Board Members, Burroughs, and Fitzpatrick move the Court to
dismiss the § 1983 claims brought against them in their official capacities. As with
Weissenbach’s Title IX claims against the individual Defendants in their official
capacities, these claims are redundant. See Brown v. Neumann, 188 F.3d 1289, 1290
n.1 (11th Cir. 1999) (“[A] suit against a government officer in his official capacity is
simply a suit against the relevant governmental entity.”). Therefore, the Board Members
and administrators’ motions to dismiss the § 1983 claims brought against them in their
official capacities are due to be granted.

Page 26 of 46

protected by the Constitution.” Collins v. City of Harker Heights, Tex., 503
U.S. 115, 120 (1992). Municipalities and local government entities are
“persons” to whom § 1983 applies. Id. (citing Monell v. Dep’t of Social Servs.
of N.Y., 436 U.S. 658, 690 (1978)).
However, local government entities “may not be sued under § 1983 for
an injury inflicted solely by its employees or agents. Instead, it is when
execution of a government’s policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury that the government as an entity is
responsible under § 1983.” Id. at 121 (quoting Monell, 436 U.S. at 691, 694).
“A policy is a decision that is officially adopted by the [entity], or created by
an official of such rank that he or she could be said to be acting on behalf of
the [entity]. . . . A custom is a practice that is so settled and permanent that
it takes on the force of law.” Cooper v. Dillon, 403 F.3d 1208, 1221 (11th Cir.
2005) (quoting Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th
Cir. 1997)). “Even in the absence of an express policy or custom, a local
government body can be held liable ‘for a single act or decision of a municipal
official with final policymaking authority in the area of the act or decision.’”
Cuesta v. Sch. Bd. of Miami-Dade Cty., Fla., 285 F.3d 962, 968 (11th Cir.
2002) (quoting McMillian v. Johnson, 88 F.3d 1573, 1577 (11th Cir. 1996)).
Page 27 of 46

“Whether a particular official has final policymaking authority is a question of
state law.” McMillan v. Monroe Cty., 520 U.S. 781, 786 (1997). Stated
another way in order “to impose § 1983 liability on [an entity], a plaintiff must
show that: (1) [her] constitutional rights were violated; (2) the municipality
had a custom or policy that constituted deliberate indifference to that
constitutional right; and (3) that the policy or custom caused the violation.”
McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004) (citing City of
Canton v. Harris, 489 U.S. 378, 388 (1989)).
Here, Tuscaloosa County argues that because the Amended
Complaint does not allege the existence of an official policy or custom that
led to Weissenbach’s injuries her § 1983 claims against it should be
dismissed. The Court agrees that the Amended Complaint is devoid of any
allegations that Tuscaloosa County had any express policies or customs in
place that led to Petrey’s sexual relationship with Weissenbach. Instead,
Weissenbach merely alleges that the Defendants “created an atmosphere
that subjected [her] to sexual abuse and harassment” and “cultivated a
culture of fraternization.” (See Doc. 28 ¶¶ 43, 45.)
However, the Amended Complaint does allege that Tuscaloosa
County, its officials, and administrators failed to thoroughly investigate the
dance teachers’ complaint, made the decision to continue to employ Petrey,
Page 28 of 46

and did not attempt to separate Petrey from Weissenbach pending an
investigation into these allegations. (See Doc. 28 at ¶ 44.) Under Alabama
law, the Board is the entity with the ultimate authority to suspend or dismiss
teachers engaged in misconduct. See Ala. Code § 16-8-23. Thus, it is
plausible that the Board’s decision to not suspend Petrey pending its
investigation constituted an act by those with final policymaking authority.
Nevertheless, “it is not enough for a § 1983 plaintiff merely to identify
conduct properly attributable to the municipality.” Bd. of Cty. Comm’rs of
Brayn Cty., Okl. v. Brown, 520 U.S. 397, 404 (1997). Weissenbach must also
allege that Tuscaloosa County acted with deliberate indifference to her equal
protection rights, which “is a stringent standard of fault, requiring proof that
a municipal actor disregarded a known or obvious consequence of his
action.” Id. at 410. A court must “carefully test the link between the
policymaker’s inadequate decision and the particular injury alleged.” Id.
Thus, for Tuscaloosa County to be liable to Weissenbach under § 1983, the
deprivation of her equal protection rights must have been “a plainly obvious
consequence” of the decision to continue to employ Petrey. See id. at 411.
Because Weissenbach alleges that the dance teachers’ complaint had been
passed on to the Board, it could be inferred that the Board made this decision
even though it was aware of the dance teachers’ allegations.
Page 29 of 46

However, Weissenbach has not sufficiently alleged facts from which
the Court can infer that the Board’s response was deliberately indifferent.
Taking the allegations in the Amended Complaint as true, the substance of
the dance teachers’ complaint was that Weissenbach talked about Petrey
during dance class as if he was her boyfriend and that they were concerned
that Petrey’s relationship with Weissenbach was inappropriate. (Doc. 28 ¶
23.) Importantly, Weissenbach makes no allegations that the dance teachers
told the administrators that they knew Weissenbach and Petrey’s
relationship was sexual in nature. Without more factual detail, the Court
cannot say that the Board’s decision to allow Petrey to continue teaching
pending its investigation constituted deliberate indifference. Due to the
limited information available to the Board, it was not plainly obvious that its
inaction would cause Weissenbach to be sexually harassed. Thus, although
Weissenbach has alleged that the failure to terminate Petrey or place him on
leave allowed him to continue to sexually abuse her (doc. 28 ¶ 30), she has
not sufficiently alleged that the Board’s actions were done with deliberate
indifference to her equal protection rights. Therefore, Weissenbach’s § 1983
claim against Tuscaloosa County is due to be dismissed.
2. Individual Capacity Claims

Page 30 of 46

Burroughs,

Fitzpatrick,

and the Board Members argue that

Weissenbach’s equal protection claims against them in their individual
capacities should be dismissed under the doctrine of qualified immunity.
Government officials are provided complete protection by qualified immunity
when sued in their individual capacities, as long as “their conduct ‘does not
violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Vineyard v. Wilson, 311 F.3d 1340,
1346 (11th Cir. 2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). Qualified immunity allows government officials to carry out the
discretionary duties of their position “without the fear of personal liability or
harassing litigation, protecting from suit ‘all but the plainly incompetent or
one who is knowingly violating federal law.’” Lee v. Ferraro, 284 F.3d 1188,
1194 (11th Cir. 2002) (citations omitted) (quoting Willingham v. Loughnan,
261 F.3d 1178, 1187 (11th Cir. 2001)). The Eleventh Circuit engages in a
two-part analysis to determine whether a government official is entitled to the
defense of qualified immunity. “First the official must prove that the allegedly
unconstitutional conduct occurred while he was acting within the scope of his
discretionary authority. Second, if the official meets that burden the plaintiff
must prove that the official’s conduct violated clearly established law.”

Page 31 of 46

Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1281 (11th Cir. 1998) (citations
omitted).
When determining if an official’s actions were within the scope of his
discretionary authority, courts consider “whether they are of a type that fell
within the employee’s job responsibilities.” Holloman ex rel. Holloman v.
Harland, 370 F.3d 1252, 1265 (11th Cir. 2004). An official will be found to
have been acting within the scope of his discretionary authority if he was “(a)
performing a legitimate job-related function (that is, pursuing a job related
goal), (b) through means that were within his power to utilize.” Id. Here, it is
clear that the Board Members, Burroughs, and Fitzpatrick were acting within
the scope of their discretionary authority because it is only by virtue of their
positions as school board members and administrators that they were tasked
with investigating Petrey’s relationship with Weissenbach. 6
As the Board Members and administrators have established that they
were acting within the scope of their discretionary authority, “the burden
shifts to the plaintiff to show that the defendant[s are] not entitled to qualified
immunity.” Cottone v. Jenne, 326 F.3d 1352, 1358 (11th Cir. 2003). “To

6

Weissenbach does not dispute that the individual Defendants were acting within the
scope of their discretionary authority. (See Doc. 34 at 13–15.) Moreover, the Amended
Complaint acknowledges that all of the alleged actions of the individual Defendants
occurred “within the line and scope of [their] employment.” (See Doc. 28 at ¶¶ 5, 6, 7, 8,
9, 10, 11, 13, 14.)

Page 32 of 46

overcome qualified immunity, the plaintiff must satisfy a two prong test; [she]
must show that: (1) the defendant violated a constitutional right, and (2) this
right was clearly established at the time of the alleged violation.” Holloman,
370 F.3d at 1264 (citing Wilson v. Layne, 526 U.S. 603, 608 (1999)).
Weissenbach claims that Defendants have violated her rights under
the Equal Protection Clause of the Fourteenth Amendment. “The Equal
Protection Clause confers a federal constitutional right to be free from sex
discrimination.” See Williams, 477 F.3d at 1300 (11th Cir. 2007). This
protection includes the right to be free from sexual harassment at a public
school. See Hill v. Cundiff, 797 F.3d 948, 978–79 (11th Cir. 2015).
As an initial matter, the Court notes that Weissenbach claims she is
bringing her equal protection claims against the individual Defendants “for
their direct actions and inactions” rather than under a theory of supervisory
liability. (See Doc. 34 at 13.) In support of this assertion, she cites to the
Eleventh Circuit’s statement in Hill v. Cundiff that “[a] government official . . .
may be held liable under section 1983 upon a showing of deliberate
indifference to known sexual harassment.” 797 F.3d at 978 (11th Cir. 2015)
(quoting Murrell v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1250 (10th
Cir. 1999)). Burroughs, Fitzpatrick, and the Board Members argue that
because no one other than Petrey subjected Weissenbach to sexual
Page 33 of 46

harassment that the § 1983 claims against them should be subject to the
stringent standards of supervisory liability. (See Doc. 36 at 8–9.)
The Court agrees with the Defendants that Weissenbach’s equal
protection claims against them are grounded in a theory of supervisory
liability. The Amended Complaint is devoid of any allegations that anyone
other than Petrey personally participated in Weissenbach’s sexual
harassment. Moreover, the Court reads Hill as a supervisory liability case.
Borrowing largely from the Tenth Circuit’s logic in Murrell, the Eleventh
Circuit held in Hill that a principal could be found liable under the Equal
Protection Clause for his deliberately indifferent response to one student’s
sexual harassment of another. See Hill, 797 F.3d at 978–79. In Murrell, the
Tenth Circuit reached its conclusion that a school official’s deliberate
indifference to sexual harassment violated the Equal Protection Clause due
to the fact that principals and teachers exercise supervisory authority over
students. Murrell, 186 F.3d at 1251–52. This, coupled with the fact that
supervisory liability may be shown by establishing that a supervisor has an
“improper custom or policy [that] results in deliberate indifference to
constitutional rights,” Doe v. Sch. Bd. of Broward Cty., Fla., 604 F.3d 1248,
1266 (11th Cir. 2010), leads the Court to conclude that the deliberate
indifference standard discussed in Hill is the same as the supervisory liability
Page 34 of 46

standard. Accordingly, the Court will assess Weissenbach’s § 1983 claims
against the Board Members and administrators under the supervisory liability
framework.
For a supervisor to be individually liable for a subordinate’s alleged
violation of this Equal Protection Clause right, the supervisor must have
either “personally participate[d] in the alleged constitutional violation” or there
must be a “causal connection between actions of the supervising official and
the alleged constitutional deprivation.” Id. (quoting Hartley v. Parnell, F.3d
1263, 1268 (11th Cir. 1999)). The required causal connection may be shown
in two circumstances. First, there is a causal connection “when a ‘history of
widespread abuse puts the responsible supervisor on notice of the need to
correct the alleged deprivation, and he fails to do so.’” Id. Second, a causal
connection is established “when a supervisor’s ‘improper custom or policy
results in deliberate indifference to constitutional rights.’” Id. “For a history of
abuse to be sufficiently widespread to put a supervisor on notice, the abuse
must be ‘obvious, flagrant, rampant and of continued duration, rather than
isolated occurrences.’” Id.
Here, Weissenbach does not assert that any of the Board Members or
administrators personally participated in the alleged sexual harassment.
Thus, she must allege sufficient facts to support a causal connection
Page 35 of 46

between the actions of the Board Members and administrators and the
alleged Equal Protection Clause violation. The Court will address the
administrators and the board members’ alleged actions separately.
a. Administrators Burroughs and Fitzpatrick
Weissenbach argues that the inadequate response by Vice Principals
Burroughs and Fitzpatrick to her dance teachers’ concerns amounted to
deliberate indifference. A plaintiff can prevail on an equal protection claim of
deliberate indifference to sexual harassment if she shows that the individual
defendant “‘actually knew of and acquiesced in’ the discriminatory conduct.”
Hill, 797 F.3d at 978 (11th Cir. 2015) (quoting Murrell 186 F.3d 1238 at 1250).
Here, Weissenbach has plausibly alleged that Burroughs and
Fitzpatrick had actual knowledge of her sexual relationship with Petrey due
to the complaint made by her dance teachers in early 2014. However, she
has not plausibly alleged that they acquiesced in Petrey’s conduct. A school
official is “not deliberately indifferent simply because the measures [he or
she] takes are ultimately ineffective in stopping a teacher from harassing
[students].” Sauls v. Pierce Cty. Sch. Dist., 399 F.3d 1279, 1285 (11th Cir.
2005) (discussing deliberate indifference in the Title IX context). Instead,
where, as here, an official makes a good faith response to sexual

Page 36 of 46

harassment allegations he should not be found to have acted in a
deliberately indifferent manner. See id.
Taking the allegations in the Amended Complaint as true, Burroughs
and Fitzpatrick did make a good faith response to the dance teachers’
complaints. Although Weissenbach alleges that she and Petrey continued to
have frequent contact at school after the administrators were notified of their
potentially inappropriate relationship, the Amended Complaint also states
that Burroughs and Fitzpatrick took steps to investigate the dance teachers’
claims. For example, they held a teleconference with the dance teachers
where they implied that they were very upset with the situation. Burroughs
also responded to the dance teachers’ follow up call and informed them that
their complaint was being investigated. This is a far cry from the situation in
Hill where the principal’s only response to a student’s alleged rape was to
discontinue the school’s one-day sexual harassment workshop for
administrators. Hill, 797 F.3d at 979. While it appears that Burroughs and
Fitzpatrick’s response to the dance teachers’ complaint was ultimately
ineffective, it cannot be said that their actions constituted deliberate
indifference to Weissenbach’s constitutional rights. Therefore, they
committed no constitutional violation and are entitled to qualified immunity.

Page 37 of 46

b. Board Members 7
The Board Members are also entitled to qualified immunity.
Weissenbach has failed to allege that the Board Members, acting in their
individual capacities, either had notice of a history of widespread abuse by
Petrey or that they acted with deliberate indifference to her constitutional
rights.
An allegation that the Board Members failed to properly investigate a
single complaint against Petrey is insufficient to show that they had notice of
Petrey’s “history of widespread abuse.” See Doe, 604 F.3d at 1267 (finding
that two prior complaints made against a teacher were insufficient to put a
principal on notice of a “history of widespread abuse”). Moreover,
Weissenbach has not alleged that the individual board members had a
custom or policy in place that encouraged Petrey to continue his sexual
relationship with her. Instead, Weissenbach’s allegations of deliberate
indifference are based on the fact that her relationship with Petrey continued

7

The Board Members also argue that Weissenbach has failed to state a § 1983 claim
against them in their individual capacities because the Amended Complaint states that
“[a]ll actions complained of herein by the plaintiff against [each Defendant Board
Member] occurred within the line and scope of his employment and representative
capacity with the Tuscaloosa County School System in Tuscaloosa, Alabama.” (See
Doc. 35 at 7.) However, Weissenbach may bring an individual capacity suit against
Defendants under § 1983 “for acts done in the course of their official duties.” See Hafer
v. Melo, 502 U.S. 21, 28 (1991). Therefore, this argument does not provide a basis for
granting the Board Members’ motion to dismiss.

Page 38 of 46

even after Burroughs told the dance teachers that the Board was
investigating their claims. These allegations do not meet the “extremely
rigorous” standard required to bring a supervisory liability claim. See Braddy
v. Fla. Dept’t of Labor & Employment Sec., 133 F.3d 797, 802 (11th Cir.
1998). Moreover, there is nothing to indicate that the Board’s failure to
suspend Petrey after receiving an isolated complaint from the dance
teachers constituted acquiescence in his conduct. Thus, the Board Members
are entitled to qualified immunity on Weissenbach’s equal protection claims.
E. Judicial Estoppel
Finally, the Court will address the contention that Weissenbach’s
claims are due to be dismissed under the doctrine of judicial estoppel.
“Judicial estoppel is an equitable doctrine invoked at a court’s discretion.”
Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1285 (11th Cir. 2002) (citing
New Hampshire v. Maine, 532 U.S. 742, 750 (2001)) overruled in part on
other grounds by Slater v. United States Steel Corp., 871 F.3d 1174 (11th
Cir. 2017) (en banc). Application of the judicial estoppel doctrine prevents a
party from “asserting a claim in a legal proceeding that is inconsistent with a
claim taken by that party in a previous proceeding.” Burnes, 291 F.3d at 1285
(quoting 18 James Wm. Moore et al., Moore’s Federal Practice § 134.30, p.
134–62 (3d ed. 2000)). The purpose of the doctrine is “to protect the integrity
Page 39 of 46

of the judicial process by prohibiting parties from deliberately changing
positions according to the exigencies of the moment.” New Hampshire, 532
U.S. at 749–50. Because judicial estoppel protects the process, not a specific
party, the one asserting the doctrine need not show that it detrimentally relied
on the other party’s previous assertions or even that it was involved in the
previous proceeding. Burnes, 291 F.3d at 1286.
The Eleventh Circuit primarily analyzes two factors when applying
judicial estoppel to a particular case. See id. at 1285 (noting that the “two
factors applied in the Eleventh Circuit are consistent with the Supreme
Court’s instructions” in New Hampshire); Barger v. City of Cartersville, 348
F.3d 1289, 1293 (11th Cir. 2003) overruled in part on other grounds by
Slater, 871 F.3d 1174. First, a party’s allegedly inconsistent position must
have been “made under oath in a prior proceeding.” Burnes, 291 F.3d at
1285 (quoting Salomon Smith Barney, Inc. v. Harvey, 260 F.3d 1302, 1308
(11th Cir. 2001)). Second, the “inconsistencies must be shown to have been
calculated to make a mockery of the judicial system.” Id. “[T]hese two
enumerated factors are not inflexible or exhaustive; rather, courts must
always give due consideration to all of the circumstances of a particular case
when considering the applicability of this doctrine.” Id. at 1286.

Page 40 of 46

Here, Defendants argue that Weissenbach is judicially estopped from
bringing her claims because they are inconsistent with statements she made
in an affidavit filed in the criminal case against Petrey, State of Alabama v.
Petrey, CC-2015-002438.00 (Tuscaloosa County, Ala.). 8 There, due to his
alleged relationship with Weissenbach, the State charged Petrey with
violating Ala. Code § 13-A-6-81(a), which prohibits school employees from
engaging in sex with students. (See Doc. 30-2.) In the affidavit, Weissenbach
stated that she and Petrey did not enter into a sexual relationship until after
she turned eighteen. Moreover, she indicated that her relationship with
Petrey was conducted in private and away from school. Weissenbach also
asserted that she was not a victim of Petrey’s and that she did not intend to
participate in any further court actions related to her relationship with Petrey.
As the affidavit contains inconsistent statements made under oath in a
prior proceeding, the only remaining question is whether Weissenbach’s

8

Defendants Burroughs and Fitzpatrick have filed the affidavit as an exhibit to their
motion to dismiss. (See Doc. 30-1.) They have also filed as an exhibit the State of
Alabama’s motion to dismiss the criminal charge against Petrey. (See Doc. 30-2.) The
Court “may consider a document attached to a motion to dismiss without converting the
motion into one for summary judgment if the attached document is (1) central to the
plaintiff’s claim and (2) undisputed. In this context, ‘undisputed’ means that the
authenticity of the document is not challenged.” Day v. Taylor, 400 F.3d 1272, 1276
(11th Cir. 2005) (citing Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002)). Here,
Weissenbach does not dispute the authenticity of the attached exhibits. As the exhibits
concern Weissenbach’s relationship with Petrey, which is central to her claims, the
Court will take the exhibits into consideration.

Page 41 of 46

inconsistent positions were “calculated to make a mockery of the judicial
system.” Burnes, 291 F.3d at 1285 (11th Cir. 2002). The Eleventh Circuit has
stated that judicial estoppel may only apply in situations involving intentional
contradictions, “not simple error or inadvertence.” Id. at 1286.
Weissenbach does not argue that her contradictory positions were
made due to either inadvertence or error. Instead, Weissenbach states that
“[t]he parties here don’t know why Weissenbach agreed to sign such an
affidavit, but discovery may reveal that she may have been pressured or
coerced to do so by her parents, Petrey, Petrey’s lawyer, or someone in the
community at large.” (Doc. 34 at 10.) Weissenbach further asserts that
judicial estoppel is inapplicable to her claims because “[s]he had nothing to
gain by submitting the affidavit.” (See id.)
The Court disagrees with Weissenbach’s assessment and finds that
the application of the doctrine of judicial estoppel is entirely appropriate at
this motion to dismiss stage. Weissenbach signed the affidavit in Petrey’s
criminal case on January 30, 2016. She filed the original complaint in this
case on September 23, 2017, less than two years later. Although
Weissenbach seemingly acknowledges that the affidavit contradicts the
position she has taken in this case, she fails to make any argument that she
has recanted her prior position or to explain these discrepancies. Because
Page 42 of 46

the two positions taken by Weissenbach are directly contradictory, it is clear
that she either intended to mislead the state court or is now misleading this
Court.
Moreover, Weissenbach’s argument that judicial estoppel should not
apply because she had nothing to gain by submitting the affidavit is
unavailing. A party asserting inconsistent positions in two proceedings does
not need to have gained an unfair advantage in the prior proceeding for
judicial estoppel to apply. See Slater, 871 F.3d at 1181–82. Further, the
Court is unconvinced that Weissenbach did not gain something by submitting
the affidavit. In her affidavit, Weissenbach indicated that she would not help
with the State’s criminal case against Petrey. Her apparent goal was to cause
the State to drop its criminal charges. This goal was accomplished when the
criminal charges against Petrey were dropped due to Weissenbach’s failure
to cooperate. (See Doc. 30-2.) Thus, Weissenbach’s affidavit seemingly
achieved its purpose.
Further, due to her inconsistent statements, it would be inequitable to
allow Weissenbach to proceed with this lawsuit. By filing this suit against
Tuscaloosa County, Weissenbach is asking taxpayers to foot the bill for
Petrey’s alleged inappropriate conduct, which she claims Tuscaloosa County
and its employees are at least partly responsible for because much of this
Page 43 of 46

activity occurred at school. However, in state court, Weissenbach stated that
“[a]t no time did Brad Petrey ever use his position as teacher to manipulate,
influence, pressure, or encourage me to enter a sexual relationship.” (See
Doc. 30-1.) If the Court allowed this case to proceed, Weissenbach could
recover monetary damages from the school system while simultaneously
protecting Petrey from facing criminal charges. This would make a mockery
of the judicial system because it would allow Weissenbach to assume
different positions based on “the exigencies of the moment.” Slater, 871 F.3d
at 1176. This is exactly the type of situation that the doctrine of judicial
estoppel is meant to prevent. As such, Weissenbach’s remaining Title IX
claim against Tuscaloosa County is due to be dismissed.
Moreover, even if the Court had not already concluded that
Weissenbach’s other claims against Tuscaloosa County, the Board
Members, Burroughs, and Fitzpatrick were each due to be dismissed, it
would do so under the doctrine of judicial estoppel. Further, although
Defendants McBride and Swinford have not filed motions to dismiss,
Weissenbach’s claims against them are also due to be dismissed. For
judicial estoppel to effectively safeguard against abuse of the judicial system
its reach must extend to Weissenbach’s claims against Tuscaloosa County
and its employees. Otherwise, Weissenbach would be allowed to bring a civil
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case against those who were only peripherally involved in her relationship
with Petrey while making statements in state court that helped absolve
Petrey of criminal liability. Because this result would make a mockery of the
judicial system, Weissenbach’s claims against these defendants are due to
be dismissed.
Finally, the doctrine of judicial estoppel also supports dismissal of
Weissenbach’s claims against Petrey. Although it at first appears inequitable
to allow Petrey to be both the beneficiary of Weissenbach’s affidavit and the
doctrine of judicial estoppel, the doctrine is meant to protect the integrity of
the courts rather than benefit any particular party. See New Hampshire, 532
U.S. at 749. Indeed, the rule was created “to prevent ‘improper use of judicial
machinery.’” See id. (quoting Konstantinidis v. Chen, 626 F.2d 933, 938
(D.C. Cir. 1980)). It would undermine the integrity of the judicial system to
allow Weissenbach to bring claims against Petrey where many of the factual
allegations that support those claims, such as her claims that they were
having sex during the summer of 2014, are directly contradicted by the state
court affidavit. The Court should not have to expend taxpayer resources
considering such claims. Therefore, Weissenbach’s claims against Petrey
are also due to be dismissed under the doctrine of judicial estoppel.

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IV. CONCLUSION
For the reasons stated above, Defendants Tuscaloosa County, Moore,
Barnett, Mims, Presley, Orr, Smalley, and Copeland’s motion to dismiss
(doc. 29) and Defendants Burroughs and Fitzpatrick’s motion to dismiss
(doc. 30) are due to be granted, and this case is due to be dismissed. A
separate order consistent with this opinion will be entered.
DONE and ORDERED on November 8, 2018.

_____________________________
L. Scott Coogler
United States District Judge
194800

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