Johnson v. Pitt County Board of Education et al
ORDER granting 20 Motion to Dismiss for Failure to State a Claim. Signed by Chief Judge James C. Dever III on 5/25/2017. (Briggeman, N.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
JOHNNIE IVEY JOHNSON,
PITT COUNTY BOARD OF EDUCATION, )
MONICA JACOBSON, PAUL BRINEY,
ERICA COOKE, KISHLYN JONES,
DR. ETHAN LENKER, and GLEN BUCK, )
On August 19, 2016, Johnnie Ivey Johnson ("Johnson" or "plaintiff'), proceeding prose,
sued the Pitt Cqunty Board of Education, Monica Jacobson, Paul Briney, Erica Cooke, Kishlyn
Jones, Dr. Ethan Lenker, and Glen Buck (collectively, "defendants), alleging abridgment ofhis First
Amendment right to free speec~ deprivation of procedural due process under the Fourteenth
Amendment, race discrimination and unlawful retaliation under Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17 ("Title VII"), and age discrimination under the
Age Discrimination in Employment Act of 1967, as amended, 29 U.S. C. §§ 621 to 634 ("ADEA").
[D.E. 5, 5-l]. On October 17, 2016, defendants moved to dismiss the complaint under Federal Rules
of Civil Procedure 12(b)(l), (b)(2), and (b)(6) [D.E. 20] and filed a supporting memorandum [D.E.
21]. On November 10,2016, Johnsonrespondedinopposition [D.E. 23]. OnNovember22, 2016,
defendants replied [D.E. 24]. On December 8, 2016, Johnson filed a surreply [D.E. 27]. As
explained below, the court grants defendants' motion to dismiss.
Johnson worked as a substitute teacher in Eastern North Carolina, including in Pitt County.
See Compl. [D.E. 5] 2. In 2012, Johnson filed an EEOC complaint against the Pitt County Board
of Education and Pitt County Schools' Director of Personnel Glen Buck ("Buck"). See Johnson v.
Pitt Cty. Sch., No. 4:12-CV-191-BR, [D.E. 35] 16-17 (E.D.N.C. Nov. 12, 2013) (unpublished).
On August 27, 2015, Johnson was three days into a 16-day substitute teaching assignment
at Farmville Middle School. [D.E. 5-1] 5. Johnson ran an errand and arrived late for work. ld. at
5'--6. Because his student-free planning period was scheduled for first period, Johnson believed he
did not have to notify the school that he would be late. Id. at 6. According to Johnson, substitutes
viewed planning periods as "free time so-to-speak" because the full-time teach((rs had typically
already performed the tasks usually undertaken during planning period. Id. When Johnson arrived
roughly five minutes after first perio4 had begun, Principal Paul Briney ("Briney") notified Johnson
that Briney had already requested a replacement for Johnson. Id. Another substitute teacher filled
in for Johnson the next day as well, but Johnson completed the remainder of the 16-day assignment.
On September 17, 2015, Briney sent Buck an evaluation of Johnson that documented the
August 27,2015, incident of tardiness, as well as six other instances, rated Johnson's performance
as "below standard" in numerous categories, and noted several concerns from students regarding
Johnson's behavior. Id. at 6-7. In a letter dated September 21, 2015, Buck notified Johnson of a
request from Briney that Johnson not return to substitute at Farmville Middle School. Id. Johnson
never received the letter because it was mailed to the wrong address See id.
Briney did not discuss his concerns with Johnson before requesting that Johnson not return
to Farmville Middle School. See id. at 7-8. Additionally, according to Johnson, the evaluation was
''unfounded on its face" because it is implausible that he could accrue so many infractions without
being immediately fired. Id. Johnson believed that Buck's letter notifying Johnson of Briney's
request constituted Buck "approving" the request, an action Johnson alleges was in retaliation for
Johnson having sued Buck in 2012. ld. at 8.
On October 21, 2015, Johnson was on a different assignment, filling in during an absent
teacher's World History class at J .H. Rose High School. Compl. at 2. The students were "studying
the five major religions around the world, in which Christmas was included as an aspect of
Christianity." [D.E. 5-1] at 1. During third period, a student asked Johnson why he did not celebrate
Christmas. See id.; [D.E. 5-2] 1. Johnson stated that he does not celebrate Christmas because it
"derive[s] from non-Christian, or rather pagan traditions." Compl. at 2; [D.E. 5-1] 1. Johnson
classifies his statements as "quite relevant to the subject matter at hand as it was ofhistorical facts."
[D.E. 5-1] 3; see id. at 1.
The next day, J.H. Rose's principal Monica Jacobson ("Jacobson") asked Johnson to come
to the school to discuss an assignment he had given during third period the previous day. Compl.
at 2. During the conference, Jacobson said that Johnson's statements to the class concerning
Christmas had been inappropriate. Id. Jacobson also told Johnson that she would request that the
"central office" remove Johnson from the school's list of available substitute teachers. [D.E. 5-1]
1. Johnson told Jacobson not to cancel his assignment because he had not been "promoting or
opposing any religion." Id. Before making this request, and "minutes after" the conference,
Jacobson cancelled Johnson's substitution assignment scheduled for the following day. Id. Because
Jacobson never officially lodged a request to remove Johnson from the availability list, over the
ensuing weeks Johnson continued to be asked to teach at J.H. Rose. ld. Jacobson personally
cancelled Johnson's assignments on six occasions. ld.
On an unstated date, Jacobson told Johnson that her decision to cancel Johnson's assignments
was motivated in part by his habit of playing music in class, although two other substitutes-both
white-played music too but were "never reprimanded in the least for doing so." Id. at 4--5. In
another incident on an unstated date, another substitute-IS years younger than Johnson-was the
subject of an investigation by Jacobson for remarks the substitute allegedly made in class. Id.
Further investigation rebutted the accusations, and Jacobson reinstated the substitute. Id.
On December 8, 2015, Johnson filed a formal grievance with Director of Personnel Buck.
Id. at 2; [D.E. 5-2]. In his grievance, Johnson asserted that his statements about Christmas were
''within the perimeters [sic] of the lesson plan on the history of various religions around the world
that included the celebration of Christmas." [D.E. 5-2] 1. BuckassignedK.ishlynJones, a Personnel
Coordinator, to investigate Johnson's complaint. [D.E. 5-l] 2. Jones concluded that Jacobson
"never submitted a request to block Mr. Johnson's name from subbing at the school, but had a valid
reason for doing so." Id.
In January 2016, Johnson reviewed his personnel file and discovered the September 21, 2015
letter containing Briney's request that Johnson not return to teach at Farmville Middle School. Id.
at 6-7. Johnson asked Buck to send him a copy of the evaluation on which the request was based,
which Johnson eventually obtained. Id.
On February 3, 2016, Johnson filed an EEOC charge, which he supplemented the next day
with additional information.
Johnson alleged age discrimination, religious
discrimination, and retaliation. Id. at 1. Although not a model of clarity, Johnson's EEOC charge
alleged that Jacobson cancelled Johnson's assignments in retaliation for Johnson filing an EEOC
charge against Pitt County Schools in 2012; that Briney's request that Johnson not return to
Farmville Middle School was
made in retaliation against Johnson for filing the 2012 EEOC charg~;
that Buck "granted" Briney's request in retaliation for Johnson filing the 2012 EEOC charge; thdt
Jacobson discriminated against Johnson for being a Jehovah's Witness who does not celebrate
Christmas; and that Jacobson discriminated against Johnson based on his age by investigating
complaints against him differently, and arriving at a different final resolution, than she had done
when resolving complaints against another substitute teacher. [D.E. 20-2]. Johnson did not assert
race discrimination in the EEOC charge, but Johnson's EEOC charge fleetingly refers to Jacobson
discriminating against him because he his black by replacing him with white substitutes "3 or 4" of
the five times she had cancelled his assignments. Id. at 3. On May 3, 2016, Johnson received his
right-to-sue notice from the EEOC. [D.E. 5-7].
On May 9, 2016, Jacobson again cancelled one of Johnson's scheduled assignments. Id.
Jacobson's secretary, Erica Cooke, cancelled the assignment in the scheduling system and left
Johnson a voicemail stating that Jacobson did not want him substituting at J .H. Rose. Id. According
to Johnson, this cancellation violated Johnson's First Amendment right to free speech, his Fourteenth
Amendment right to procedural due process, and was in retaliation for
protected activity. Id. He also alleges that Jacobson canceled this assignment in retaliation for
Johnson's EEOC grievance filed against Buck in 2012. Id. According to Johnson, Buck and Jones
persuaded Jacobson to continue cancelling Johnson's assignments, or failed to dissuade her from
doing so, and ignored Johnson's grievance. Id.
On July 28, 2016, Johnson sued defendants for violating his First Amendment right to free
speech, violating his Fourteenth Amendment right to procedural due process, age discrimination,
race discrimination, and retaliation. See [D.E. 5-1] 9. Johnson names defendants Jacobson, Briney,
Buck, Jones, and Cooke in their individual capacities and seeks $75,000 in compensatory damages
and $75,000 in punitive damages. Compl. at 2-3. He names Dr. Ethan Lenker, Superintendent for
Pitt County Schools, in his official capacity to request an injunction requiring principals to confer
with substitutes regarding all performance concerns before requesting that substitutes be removed
from the list of available substitutes. [D.E. 5-1] 9. Defendants have moved to dismiss Johnson's
claims under Federal Rules of Civil Procedure 12(b)(1), (b)(2), and (b)(6). [D.E. 20].
Defendants move to dismiss Johnson's Title VII race-discrimination claims for lack of
subject-matter jurisdiction. A motion to dismiss under Federal Rule ofCivil Procedure 12(b)(1) tests
subject-matter jurisdiction, which is ''the court's statutory or constitutional power to adjudicate the
case." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998) (emphasis omitted); see
Holloway v. Pagan River Dockside Seafood. Inc., 669 F.3d 448, 453 (4th Cir. 2012). "[T]he party
invoking federal jurisdiction bears the burden of establishing its existence." Steel Co., 523 U.S. at
104; see, ~,Evansv. B.F.PerkinsCo., 166 F.3d642, 647 (4thCir.1999). In considering amotion
to dismiss for lack of subject-matter jurisdiction, the court may consider evidence outside the
pleadings without converting the motion into one for summary judgment. See, ~' Richmond.
Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
Title VII prohibits employers from, among other things, "discriminat[ing] against any
individual with respect to his compensation, terms, conditions, or privileges ofemployment, because
of such individual's race." 42 U.S.C. § 2000e-2(a)(l). Before filing suit under Title VII in federal
court, a plaintiff must exhaust his administrative remedies by filing a charge of discrimination with
Hentosh v. Old Dominion Univ., 767 F.3d 413,416 (4th Cir. 2014). "Even
after a plaintiff has exhausted his administrative remedies, the administrative framework plays a
substantial role in focusing the formal litigation it precedes." Chacko v. Patuxent lnst., 429 F.3d
505, 509 (4th Cir. 2005). The EEOC charge's content determines the scope of a plaintiffs righttp
maintain a Title VII claim in court. Id.; Hentosh, 767 F.3d at 416; Webb v. N.C. Dep't ofCrimb
Control&Pub. Safety.AlcoholLawEnf'tDiv.,658F. Supp.2d 700,707-08 (E.D.N.C.2009). This
court lacks jurisdiction over Title VII claims that exceed the scope of the EEOC charge.
Balasv. Huntingtonlngallslndus .. Inc., 711 F.3d401,407--09(4thCir. 2013); Jonesv. CalvertGrp ..
Ltd., 551 F.3d 297, 300 (4th Cir. 2009); Chacko, 429 F.3d at 509-10.
"Only those discrimination claims stated in the initial charge, those reasonably related to the\
original complaint, and those developed by reasonable investigation of the original complaint may
be maintained in a subsequent Title VII lawsuit." Jones, 551 F.3d at 300 (quotation omitted); see
Sydnor v. Fairfax Cty.. Va., 681 F .3d 591, 594 (4th Cir. 20 12); Chacko, 429 F .3d at 509-10. "Thus, .
factual allegations made in formal litigation must correspond to those set forth in the administrative
charge." Bonds v. Leavitt, 629 F.3d 369,379 (4th Cir. 2011) (quotation omitted). For example, "a
claim in formal litigation will generally be barred ifthe EEOC charge alleges discrimination on one
basis, such as race, and the formal litigation claim alleges discrimination on a separate basis, such
as sex." Jones, 551 F.3d at 300; see Chacko, 429 F.3d at 509-10. But because laypersons often
initiate the EEOC administrative process, courts construe EEOC charges liberally. See Sydnor, 681
F.3d at 594; Chacko, 429 F.3d at 509.
Johnson's race-discrimination claims were not stated in his EEOC charge, are not reasonably
related to the claims stated in his EEOC charge, and could not have been developed by reason
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