White v. Pitt County Schools

Filing 22

ORDER granting 9 Motion to Dismiss. The Clerk is DIRECTED to enter judgment in favor of the Board and close this case. Signed by Senior Judge W. Earl Britt on 2/22/2018. (Creasy, L.)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
No. 4:17-CV-00075-BR
CORA L. GORHAM WHITE,
Plaintiff,
v.
PITT COUNTY SCHOOLS,
Defendant.

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ORDER

This matter is before the court on the 26 June 2017 motion to dismiss filed by the Pitt
County Board of Education (“the Board”). (DE # 9.) Plaintiff filed a response in opposition on
20 July 2017. (DE # 16.) The Board filed a reply on 1 August 2017. (DE # 17.) The motion
has been fully briefed and is ripe for disposition.
I. FACTS1
Plaintiff was hired by Pitt County Schools (“PCS”) in 1982 as a teaching assistant.
(Compl., DE # 1, at 6.) She was later promoted to a math teacher position in 1992 or 1997. (Id.;
DE # 1-1, at 1.) In August 2011, plaintiff was transferred to A.G. Cox Middle School. (DE # 11, at 6-7.) Following her transfer, plaintiff had a number of conflicts with Principal Tracy Cole,
including issues related to student transfers and discipline, personal leave, after-school activities,
and plaintiff’s failure to attend a meeting. (Id. at 7.)

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Plaintiff’s complaint, (DE # 1), was filed with 43 pages of attachment consisting of the EEOC charge, right to sue
letter, notes, correspondence, and medical records, (DE # 1-1). The last line of plaintiff’s complaint states “see
attached exhibit,” (DE # 1, at 4), and the Board acknowledges that the complaint is difficult to decipher without
considering the attached documents, (see Def.’s Supp. Mem., DE # 10, at 2 n.1). The court will therefore consider
additional facts alleged in these attachments to the extent they are consistent with the allegations in plaintiff’s
complaint. See E. I. du Pont de Nemours and Co. v. Kolon Industries, Inc., 637 F.3d 435, 448 (4th Cir. 2011) (“In
deciding whether a complaint will survive a motion to dismiss, a court evaluates the complaint in its entirety, as well
as documents attached or incorporated into the complaint.”).

On 6 February 2013, plaintiff was suspended without pay based on allegations of
unethical behavior. (Id. at 1, 7, 22.) Following these allegations, plaintiff met with Glen Buck,
Personnel Director for PCS, and Delilah Jackson, Assistant Superintendent of Human Resources
for PCS. (Id. at 4-5, 7.) In addition, plaintiff’s information was forwarded to the legal office of
the North Carolina State Board of Education (“NCSBOE”) and the Superintendent’s Ethics
Advisory Committee. (Id. at 19, 21.)
Plaintiff returned to work on 26 February 2013. (Id. at 19.) On 15 May 2013, the
Superintendent’s Ethics Advisory Committee “found that there was no cause at this time to take
any action against [plaintiff’s] North Carolina teaching license.” (Id. at 21.) Plaintiff was again
suspended on 6 June 2013, and has not returned to work since that date. (Id. at 1.) Following
her suspension, plaintiff was approved for short-term disability benefits due to major depressive
disorder, anxiety, and fibromyalgia. (Id. at 40-41.)
On 24 April 2015, Superintendent Ethan Lenker notified plaintiff via letter that she was
banned indefinitely from entering or being present on any property owned or leased by PCS and
from attending any school-sponsored activities. (Id. at 11; Compl., DE # 1, at 3.) This ban was
apparently due to allegations stated against plaintiff and investigated by the Pitt County Sheriff’s
Department. (DE # 1-1, at 11.) In issuing the ban, Dr. Lenker noted that plaintiff was on “shortterm disability leave and d[id] not need to be present on school system property to discharge
your duties as an employee.” (DE # 1-1, at 11.) Although the ban applied to all PCS premises,
plaintiff alleges that the only school that was notified of the ban was South Central High School,
where her niece was enrolled as a student. (Compl., DE # 1, at 3.)
The Sheriff’s Department closed its investigation on 22 April 2015 and took no further
action on the matter. (Id.) The ban continued to remain in place until 25 August 2015, when

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Dr. Lenker modified the ban to allow plaintiff to attend conferences or other events at South
Central High School with preapproval from school administrators. (DE # 1-1, at 20.) In the
letter notifying plaintiff of this modification, Dr. Lenker noted that since issuing the ban plaintiff
was “now on long-term disability leave administered by the State of North Carolina and that you
have resigned your positon with Pitt County Schools as required to receive long-term disability
benefits.” (Id.)
Plaintiff alleges that she later received approval to be on school property from the
principal at South Central High School. (Id. at 10.) After receiving this approval, plaintiff
attended several of her niece’s basketball functions. (Id.) In April 2016, while attempting to
pick up her niece from school, plaintiff was notified that the ban remained in place and that she
was still not allowed to be on PCS property. (Id.) According to plaintiff, due to being denied
access to her niece’s school and the continual harassment and bullying in the years following her
suspension, she has suffered severe physical, mental, financial, and psychological hardships.
(DE # 1, at 4.)
Plaintiff subsequently filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”), asserting claims of disability discrimination, harassment,
and retaliation under the Americans with Disabilities Act (“ADA”). (DE # 1-1, at 1.) On 2 June
2017, plaintiff, who is proceeding pro se, initiated this suit asserting claims of “bullying,
harassment, failure of due process, [and] failure to reimburse money taken during investigation
retaliation.” (Compl., DE # 1, at 2.) On 26 June 2017, the Board filed a motion to dismiss under
Rules 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure. (DE # 9.)

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II. STANDARDS OF REVIEW
A. Rule 12(b)(1)
A motion to dismiss under Rule 12(b)(1) challenges the court’s subject matter
jurisdiction. Whether subject matter jurisdiction exists is a threshold question that must be
addressed by the court before considering the merits of the case. Jones v. Am. Postal Workers
Union, 192 F.3d 417, 422 (4th Cir. 1999). Under Rule 12(b)(1), the plaintiff bears the burden of
showing that subject matter jurisdiction exists. Williams v. United States, 50 F.3d 299, 304 (4th
Cir. 1995). “In determining whether jurisdiction exists, the district court is to regard the
pleadings as mere evidence on the issue, and may consider evidence outside the pleadings
without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg &
Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991) (citations omitted).
B. Rule 12(b)(6)
Pursuant to Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A Rule 12(b)(6) motion challenges
the legal sufficiency of a complaint, and the relevant inquiry is whether the plaintiff’s factual
allegations are “enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A complaint attacked by a Rule 12(b)(6) motion to dismiss
will survive if it contains “sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
550 U.S. at 570). Although “detailed factual allegations” are not required, “labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do
[.]” Twombly, 550 U.S. at 555.

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When deciding a motion to dismiss under Rule 12(b)(6), a court must accept all factual
allegations in the complaint as true and construe them in the light most favorable to plaintiff.
Nemet v. Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009). A
pro se litigant’s pleadings are to be construed liberally to ensure that valid claims do not fail
merely for lack of legal specificity. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).
While pro se litigants are held to less stringent pleading standards than attorneys, this does not
“undermine Twombly’s requirement that a pleading contain ‘more than labels and conclusions.’”
Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008) (quoting Twombly, 550 U.S. at
555). Thus, even a pro se complaint must contain “enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at 570.
III. ANALYSIS
A. ADA Claims
To the extent plaintiff brings a claim under the ADA, the Board asserts that the court
lacks subject matter jurisdiction to consider such claims because plaintiff failed to follow the
applicable administrative requirements. (Def.’s Supp. Mem., DE # 10, at 5-6.) Before filing an
ADA claim in federal court, a plaintiff must first exhaust her administrative remedies by filing a
charge of discrimination with the EEOC within 180 days of the alleged act of discrimination.
Bannister v. Wal-Mart Stores E., L.P., 843 F. Supp. 2d 610, 616 (E.D.N.C. 2012) (citing 42
U.S.C. § 2000e-5(e)(1)). “When a plaintiff fails to comply with the 180-day filing requirement,
the complaint is time barred and must be dismissed.” Sheaffer v. Cty. of Chatham, 337 F. Supp.
2d 709, 723 (M.D.N.C. 2004) (citing McCullough v. Branch Banking & Trust Co., 35 F.3d 127,
131 (4th Cir. 1994)).

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The Board asserts that plaintiff failed to file her EEOC charge within 180 days of the
most recent discriminatory act alleged in her complaint. (Def.’s Supp. Mem., DE # 10, at 5-6.)
Plaintiff’s EEOC charge bears the date of 2 June 2017, and was sworn and notarized on that
same date. (DE #1-1, at 1.) It is somewhat odd that the EEOC dismissal and notice of rights
letter that was mailed to plaintiff, which is also attached to plaintiff’s complaint, is dated three
months earlier (2 March 2017). (See DE # 1-1, at 2.) However, plaintiff’s response brief does
not address the apparent discrepancy between these two documents. (See Pl.’s Resp., DE # 16.)
In fact, plaintiff’s response brief includes no reference whatsoever to the date on which she filed
the EEOC charge. (See id.) Without any allegation to the contrary, the court muse the 2 June
2017 date of filing with the EEOC.
The EEOC charge shows that plaintiff alleged that discrimination took place from 6 June
2013 to 22 April 2015, and checked off the box that it was a “continuing action.” (DE # 1-1, at
1.) However, in her one of her attachments, plaintiff alleges that the latest discriminatory act
occurred in April 2016, when she was not permitted entry at her niece’s school. (See DE # 1-1,
at 10.) Assuming plaintiff suffered the last alleged discriminatory act in April 2016 and that it
was related to her employment, plaintiff filed her charge of discrimination over a year after this
alleged act took place. Because plaintiff filed her EEOC charge well outside of the 180-day
window, the court finds that plaintiff’s claims under the ADA are time barred.
B. State Law Claims
To the extent plaintiff asserts a state law tort claim for the bullying and harassment she
allegedly suffered from various PCS employees, the Board argues that any such claims are
barred by the doctrine of sovereign immunity. (Def.’s Supp. Mem., DE # 10, at 7.) In North
Carolina, “[a] county or city board of education is a governmental agency, and therefore may not

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be liable in a tort action except insofar as it has duly waived its immunity from tort liability
pursuant to statutory authority.” Overcash v. Statesville City Bd. of Educ., 348 S.E.2d 524, 526
(N.C. Ct. App. 1986). Pursuant to North Carolina General Statute § 115C-42, securing liability
insurance is “the exclusive means for a local board of education to waive immunity.” Frye v.
Brunswick Cty. Bd. of Educ., 612 F. Supp. 2d 694, 702 (E.D.N.C. 2009) (citing N.C.G.S. §
115C-42).
“[U]nder North Carolina law, a complaint alleging negligence of a school board fails to
state a claim upon which relief can be granted when it includes no allegations of immunity
waiver based on insurance procurement.” Miller v. Union Cty. Public Schs., No. 3:16-CV00666-FDW-DCK, 2017 WL 3923977, at * 6 (W.D.N.C. Sept. 7, 2017) (citations omitted).
Nowhere in the complaint or the exhibits attached to it does plaintiff allege that the Board has
waived immunity by purchasing liability insurance. Accordingly, any state law tort claims that
plaintiff seeks to assert against the Board must be dismissed.
In her complaint, plaintiff also asserts that she has been “forced to forfeit the profession”
she loves, suggesting a claim for constructive or wrongful discharge. (Compl., DE # 1, at 4.)
She further alleges that Buck and Dr. Jackson provided “false information” to the “North
Carolina Ethics Commission,” and otherwise violated state policies and procedures pertaining to
“suspension” and “personnel issues.” (DE # 1-1, at 4-5.) To the extent these allegations can be
construed to assert a claim in relation to plaintiff’s suspensions or the disciplinary action taken
against her, the Board argues that such claims must be dismissed for lack of jurisdiction because
plaintiff has failed to exhaust her administrative remedies. (Def.’s Supp. Mem., DE # 10, at 8-9.)
“‘[W]hen a statute under which an administrative board has acted provides an orderly
procedure for an appeal to the superior court for review of the board’s action, this procedure is

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the exclusive means for obtaining such judicial review.’” Ragland v. Nash-Rocky Mount Bd. of
Educ., 787 S.E.2d 422, 430 (N.C. Ct. App. 2016) (quoting Presnell v. Pell, 260 S.E.2d 611, 615
(N.C. 1979)). North Carolina General Statute § 115C-325(n) details the appeal process, subject
to judicial review, for career teachers who have had their employment suspended. See James v.
Charlotte Mecklenburg Cty. Bd. of Educ., 728 S.E.2d 422, 426 (N.C. 2012). With respect to
other employment actions, the statute provides that an aggrieved person has a right of appeal to
the local school board following a final administrative decision in matters specifically including
“[a]n alleged violation of a specified federal law, State law, State Board of Education policy,
State rule, or local board policy,” or “[t]he terms or conditions of employment or employment
status of a school employee.” N.C. Gen. Stat. § 115C-45(c). Under specified conditions, the
local school board’s decision can be further appealed to the superior court. Id.; see also Presnell,
260 S.E.2d at 617 (holding superior court lacked jurisdiction to entertain a cafeteria worker’s
wrongful discharge claim due to her failure to follow appellate procedures provided in
predecessor statute to N.C. Gen. Stat. § 115C-45(c)).
As an exhibit to her complaint, plaintiff includes a timeline regarding the suspensions and
other disciplinary actions taken against her. (See DE # 1-1, at 6-7.) Neither the timeline nor the
other documents submitted with the complaint indicate that plaintiff followed the statutory
appeal process. Because plaintiff has failed to demonstrate that she has exhausted her
administrative remedies, any state law claim related to her suspension or disciplinary actions
taken against her must be dismissed.
C. Due Process Claim
The Board also seeks dismissal of plaintiff’s due process claim. Plaintiff alleges a
“failure of due process over a 6 year period,” and that she has suffered a number of hardships

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resulting from the violation of her due process rights. (Compl., DE # 1, at 4.) In order to state a
claim for denial of procedural due process, a plaintiff must show that she has “(1) a cognizable
liberty or property interest; (2) the deprivation of that interest by some form of state action; and
(3) that the procedures employed were constitutionally inadequate.” Iota Xi Chapter of Sigma
Chi Fraternity v. Patterson, 566 F.3d 138, 145 (4th Cir. 2009). A due process violation “is not
complete unless and until the State fails to provide due process.” Tri-Cty. Paving, Inc. v. Ashe
Cty., 281 F.3d 430, 437 (4th Cir. 2002) (citation and quotation marks omitted). “Failure to
utilize existing procedures precludes a due process violation.” Roseboro v. WinstonSalem/Forsyth Cty. Sch. Bd. of Educ., 2014 WL 5304981, at *5 (M.D.N.C. Oct. 15, 2014)
(citing Kendall v. Balcerzak, 650 F.3d 515, 528 (4th Cir. 2011).
Plaintiff first complains of the no trespassing directive, and appears to claim a property
interest in her access to PCS property. In North Carolina, local boards of education “have
general control and supervision of all matters pertaining to the public schools in their respective
local school administrative units[.]” N.C. Gen. State § 115C-40. Consequently, “the authority to
direct and manage school institutions and their personnel falls under the province of the local
school board.” Roseboro, 2014 WL 5304981, at *5 (citing N.C. Gen. Stat. § 115C-40). Since
the authority to manage institutions within its district is among the authorities conferred to a
local school board by statute, it was within the Board’s discretion to limit plaintiff’s access to
PCS property. Having failed to sufficiently allege a property interest at stake in her ban from
PCS property, plaintiff’s claim of due process relating to the no trespassing directive must be
dismissed.
Plaintiff also complains of the suspensions of her employment with PCS. The Board
acknowledges that a career teacher, as defined under N.C. Gen. Stat. § 115C-325, may have a

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cognizable property interest in continued employment. (Def.’s Supp. Mem., DE # 10, at 10
(citing Crump v. Bd. of Educ. of Hickory Admin Sch. Unit, 392 S.E.2d 579, 584 (N.C. 1990).)
Nonetheless, the Board argues that, “even assuming arguendo that Plaintiff had a property
interest in her employment and that she was deprived of that interest by the Board or its
employees,” plaintiff has not pled either that she exhausted the available administrative remedies
or that those remedies were inadequate. (Id. at 10-11.)
To the extent plaintiff attempts to raise a federal due process claim, “[a] procedural due
process violation cannot have occurred when the governmental actor provides apparently
adequate procedural remedies and plaintiff has not availed himself of those remedies.” See
Kendall, 650 F.3d at 528. As noted previously, plaintiff fails to allege that she utilized the
available state administrative remedies to challenge her suspensions or other disciplinary actions
related to her employment. Therefore, plaintiff has failed to state a claim for violation of her
federal due process rights.
To the extent plaintiff attempts to raise a claim for a due process violation under state
law, “North Carolina courts have consistently interpreted the due process and equal protection
clauses of the North Carolina Constitution as synonymous with their Fourteenth Amendment
counterparts.” Tri Cty. Paving, Inc., 281 F.3d at 435 n.6. Because the court has found that
plaintiff has failed to state a claim under the due process clause of the United States Constitution,
plaintiff’s claim under the North Carolina constitution fails as well. See Fothergill v. Jones Cty.
Bd. of Educ., 841 F. Supp. 2d 915, 917-18 (E.D.N.C. 2012) (finding no genuine issue of material
fact existed as to plaintiff’s claim for a due process violation under North Carolina law where the
court had previously dismissed plaintiff’s claim under the federal due process clause).

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III. CONCLUSION
For the reasons stated herein, the Board’s motion to dismiss, (DE # 9), is GRANTED.
The Clerk is DIRECTED to enter judgment in favor of the Board and close this case.
This 22 February 2018.

__________________________________

W. Earl Britt
Senior U.S. District Judge

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