J. W. et al v. The Johnston County Board of Education et al

Filing 63

ORDER granting 39 Motion for Summary Judgment, granting 41 Motion to Seal, and denying 54 Motion to Strike - Signed by Chief Judge James C. Dever III on 9/24/2014. (Tripp, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:11-CV-707-D

)
)
)
Plaintiffs,
)
)
v.
)
)
THE JOHNSTON COUNTY BOARD
)
OF EDUCATION, ED CROOM, in his
)
individual and official capacities, and
)
JENNIFER MOORE, in her individual
)
and official capacities,
)
)
Defendants. )

J.W., by and through his parent and
guardian, and BRENDA NEWSOME,

ORDER

Former special-education teacher Brenda Newsome and her former student, J.W.,
("plaintiffs") have sued the Johnston County Board of Education, Board Superintendent Ed Croom,
and principal Jennifer Moore ("defendants"). See Am. Compl. [D.E. 17]. Plaintiffs' amended
complaint contains a variety of federal and state claims concerning Newsome's employment and
J.W.'s educational environment. See id. On September 24, 2012, the court granted in part and
denied in part defendants' partial motion to dismiss the amended complaint. On September 3, 2013,
defendants moved for summary judgment on the remaining claims [D.E. 39]. On October 22, 2013,
plaintiffs responded in opposition [D.E. 51]. On November 5, 2013, defendants replied [D.E. 53].
Defendants' motion to strike portions of plaintiffs' response in opposition to summary judgment is
also pending [D.E. 54]. As explained below, the court denies defendants' motion to strike and grants
defendants' motion for summary judgment.

I.

A.
Brenda Newsome was a teacher at Selma Middle School ("SMS") in Johnston County, North
Carolina, from 2004 to 2009. Newsome taught a "Life Skills" class for special-education students.
When the student-population projections for the 2008-2009 school year showed a reduced need for
Life Skills classes at SMS, the Board decided to consolidate two of SMS' s Life Skills classes into
one, which Newsome would teach. See Bisesi Aff. [D.E. 40-10] ~ 5; Andrews Aff. [D.E. 40-11] ~~
~7;

Moore Dep. [D.E. 40-4, 51-14] 100-01.
Newsome became aware of the Board's decision towards the end of the 2007-2008 school

year and disagreed with it. She was concerned that the consolidation would cause her to have more
students in her class than she could competently manage, and that she would have to teach Language
Arts, a subject she had not previously taught. See Newsome Dep. [D.E. 40-1, 40-2, 51-13] 25,

109-10; Little Dep. [D.E. 40-6] 45. Newsome first expressed those concerns on May 12,2008, in
an email to the other members of the SMS special-education department and to her principal,
defendant Jennifer Moore. See id. 109-10, 112, Ex. 15. Newsome also orally expressed her
concerns to the other special-education teachers and to members of the SMS administration. See id.

116, 122.
In addition, Newsome sent a letter to her students' parents, dated May 27,2008, informing
them of the pending consolidation of SMS' s Life Skills classes and encouraging the parents to "be
[their] child's advocate" and to contact the appropriate SMS and Johnston County Schools officials
to discuss the consolidation. See id., Ex. 20. Newsome alone drafted and sent the letter, but made
it appear to be from the SMS special-education teachers as a group. Newsome claims she attempted
to send a draft of the letter to the other special-education teachers asking if they objected to anything
2

in it, but the other teachers never got the draft and Newsome did not discuss the letter with them
before sending it. See id. 144, 146. After the other teachers expressed dismay that Newsome had
used their names without permission, Moore met with Newsome and explained to her that she should
not have done so. See Moore Dep. 86-88.
During the summer of2008 and into the beginning ofthe school year, Newsome investigated
whether her consolidated Life Skills class would be larger than allowed under applicable North
Carolina Department ofPublic Instruction ("DPP') guidelines. See Newsome Dep. 124-26, 130--32.
The guidelines require a higher staff-to-student ratio for classes containing students with "intensive
needs" than for classes containing students who can manage with "sustained support." See [D.E.
51-27]. The Board's special-education administrators determined that Newsome's class was a
"sustained support" class. See Bisesi

A:ff., 11; Andrews Aff. , 9.

Newsome questioned that

determination, and even after several discussions with the administration, remained unconvinced that
her class was a "sustained support" class rather than an "intensive needs" class. She encouraged her
students' parents to independently investigate the matter. See Newsome Dep. 133-34, 202; Bisesi
Aff., Ex. B.
Once the 2008-2009 school year began, Newsome struggled to manage her class, as she had
predicted she would. In response, Moore offered support to Newsome in several ways. In particular,
Moore accommodated Newsome's request for more planning time and for other schedule
adjustments, see Newsome Dep. 63-64, 159-61; Moore Dep. 114, and permitted Jenny Wiggins,
the mother of plaintiffJ. W. and a teaching assistant at SMS, to act as an occasional teaching assistant
for Newsome. See Newsome Dep. 41-42, 66-67; Wiggins Dep. [D.E. 40-3, 51-12] 17, 19-20,
22-23; Moore Dep. 114. Newsome also received help with the day-to-day management of her class
from Bill Wood, another teaching assistant at SMS, and from the custodial staff. SeeNewsome Dep.

3

64--67, 158; Wiggins Dep. 70-71. Furthermore, a curriculum specialist, an autism specialist, and
a behavioral specialist visited Newsome's classroom and offered suggestions for improvement. See
NewsomeDep.148, 152; ThompsonA:ff. [D.E. 40-14] ~3. Moore'simpressionwasthatNewsome
received more support than even a typical beginning teacher. See Moore Dep. 115.
Despite this support, Newsome struggled. Michael Thompson, a behavioral specialist who
visited Newsome's classroom two to three times per week, observed that Newsome relied too
heavily on her teaching assistant, left her students with too much unstructured time, did not give
adequately individualized instruction for students, and failed to implement any suggestions made to
her about how to improve her classroom. See Thompson A:ff. ~~ 5-9. Thompson expressed those
concerns to Moore in an email dated January 8, 2009. See id., Ex. A. Likewise, Charlene Butala,
the autism specialist who visited Newsome's classroom, told Moore that Newsome was not
implementing any of the strategies Butala had suggested. See Moore Aff. [D.E. 40-17] ~ 7, Ex. E.
Similarly, Mary Ann Y ansom, another specialist who had visited Newsome and offered suggestions,
told Moore that Newsome was not implementing Yansom's suggestions. See id.

~

11, ex. H.

Throughout the 2008-2009 school year, Moore expressed concerns to Newsome about her
performance. On October 21, 2008, after a meeting, Moore issued a letter officially reprimanding
Newsome for sending the letter to parents encouraging advocacy against the consolidation of SMS' s
Life Skills classes and using other teachers' names without permission, for continuing to suggest to
parents that the SMS Life Skills class was larger than allowed by DPI even after administration had
explained to her that the class size complied with DPI guidelines, and for often allowing her teaching
assistant to be the primary teacher. See Newsome Dep., Ex. 27; Moore Aff.

~

4, Ex. A. Moore

instructed Newsome, going forward, to direct questions about school-administration decisions to the
school administration rather than involving parents, to accept the administration's determination that
4

her class size was appropriate, and not to rely on her teaching assistant as a primary teacher. See
Newsome Dep., Ex. 27.
On January 30, 2009, Moore issued a second letter, warning Newsome that she was "at risk
of receiving a 'below standard' rating" on the behavior-management and instructional-presentation
portions ofheryear-end evaluation, unless she showed sustained improvement. See Newsome Dep.,
Ex. 28; Moore Aff. ~ 9, Ex. F; Moore Dep. 83. In previous years, Newsome's evaluations had been
at or above standard in all categories and often included praise from Moore. See [D.E. 51-20] 6-31.
During the 2008-2009 school year, Newsome's evaluations were decidedly worse. She was rated
as "at standard" in all categories, whereas before she had often been rated as "above standard." See
id. 1-5. Moreover, Moore's comments suggested that Newsome's performance had been only
minimally at standard and needed significant improvement. See id.
After the 2008-2009 school year, Newsome was eligible to be considered by the Board for
"career status," a form of tenure. The Board's policy at the time was that "at standard" performance
was not enough to guarantee a grant of career status, nor would it preclude a grant of career status.
See Little Dep. 26-28. On May 27,2009, Moore informed Newsome that she would recommend
that the Board not renew Newsome's contract or grant her career status because Newsome had not
shown sustained improvement in her teaching and classroom management. See Moore Aff., Ex. I;
Moore Dep. 129-30. According to Moore, "[t]he determination for a non-renewal had nothing to
do with [Newsome's] advocating," but rather was based on Newsome's failure to show sustained
improvement in her "instructional presentation and classroom management." Moore Dep. 134-3 7;
see Moore Aff.

~

6.

At that point, Newsome obtained a representative from the North Carolina Association of
Educators. On June 1, 2009, Newsome and her representative met for three hours with Robin Little,
5

the Director of Human Resources for Johnston County Schools. See Newsome Dep. 220-22; Little
Aff. [D.E. 40-16] ~ 8, Ex. B. Shortly thereafter, Newsome decided to resign rather than allow the
Board to decide not to renew her contract, hoping that by doing so she would be in a better position
to find a new teaching job. See Newsome Dep. 225; Little Aff. ~ 9. On June 4, 2009, Newsome
submitted a letter of resignation. See Newsome Dep. 224-25, Ex. 30; Little Aff. ~ 10. On June 5,
2009, Croom accepted Newsome's resignation. See Little Aff.

~

10, Ex. D. After resigning,

Newsome regretted doing so. On July 6, 2009, Newsome and her representative met with Croom
and asked him to allow Newsome to rescind her resignation. See Newsome Dep. 227-29, Ex. 32.
Croom declined. See id., Ex. 32.

B.
J.W. was a student in Newsome's Life Skills class during the 2008-2009 school year who
allegedly was the victim of a sexual assault at SMS on April2, 2009. That day, J. W. left his art class
to go to the bathroom. Another student, S.L., also went to the bathroom, purportedly to help. J.W.
See Welch Aff. [D.E. 40-12] ~ 7. S.L. was a non-special-education student who occasionally acted
as a student mentor to students in the Life Skills class. See Wiggins Dep. 92-93; Welch Aff.

~

6;

Finiello Aff. [D.E. 40-13] ~ 5. While J.W. was gone to the bathroom, Wiggins, his mother, stopped
by the art classroom and noticed that J.W. was missing. Wiggins Dep. 97. When the art teacher,
Dorothy Finiello, told Wiggins that J.W. had gone to the bathroom, Wiggins went to look for J.W.
Id. 99. After checking one bathroom unsuccessfully, Wiggins tried another, and at the second
bathroom she saw J.W. and S.L. exiting the bathroom together, with S.L. pushing J.W. from behind.
Id. 104. J.W. appeared pale and stunned to Wiggins, and his shirt was ''wadded up like ... a ball
in the back of his pants." Id. 106. Wiggins was troubled, but did not discuss the matter that day with
Moore or any other school administrator. Id. 113-14, 122. Wiggins did inform Newsome ofwhat
6

she had seen, but, like Wiggins, Newsome did not report anything to Moore or any other school
administrator. See Newsome Dep. 181.
On April6, 2009, J. W. told Wiggins that S.L. had "touched his privates" while they were in
the bathroom together. Wiggins Dep. 126. The next day, Wiggins emailed Moore to report what
J. W. had said and what Wiggins had seen on April2. See Wiggins Dep., 131-32, Ex. 4; Moore Aff.
~

16, Ex. J; Moore Dep. 11. At that point, Moore initiated an investigation. She talked to Wiggins,

who asked that S.L. no longer be permitted to interact with the Life Skills class. See Wiggins Dep.
139-41; Moore Aff.

~

17. She interviewed Finiello and Dorothy Welch, the two faculty members

who had been in the art class when J.W.left to go to the bathroom. See Moore Aff.

~

18; Moore

Dep. 11-12. She interviewed Newsome about whether Newsome thought anything had happened
to J.W. See Newsome Dep. 189. She reviewed a surveillance video of the bathroom entrance,
which confirmed that J.W. and S.L. had exited the bathroom together on April2, 2009. See Moore

Aff. ~ 19; Moore Dep. 13. 1 She interviewed S.L., who denied inappropriately touching J.W. See
Moore Aff.

~

20; Moore Dep. 27-28.

After this initial investigation, Moore reported the incident to Harold Mitchell, a School
Resource Officer, but noted that she had been unable to substantiate J.W.'s allegations. Moore Aff.
~

21; Moore Dep. 31-32; Mitchell Aff. [D.E. 40-15]

~~

2-4. Even so, Moore transferred S.L. out

of J.W.'s art class and instructed S.L. not to interact with the Life Skills students anymore. See
Moore Aff. ~~ 20, 23. At one point, Wiggins told Newsome that she had seen S.L. in the art class
again and Newsome spoke to Moore about it. See Wiggins Dep. 141-42. At another point,

1

No evidence supports plaintiffs' argument concerning spoliation ofthe videotape evidence.
Thus, the court rejects plaintiffs' spoliation argument. See,~' Vulcan Materials Co. v. Massiah,
645 F.3d 249, 259-60 (4th Cir. 2011); Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir.
2001).
7

Newsome told Moore that she had seen S.L. in the art class, and Moore reiterated her instructions
to S.L. See Newsome Dep. 192; Moore Aff., 25; Moore Dep. 47-48. Newsome's understanding
was that Moore "took immediate care of it," and Newsome never saw S.L. in the art class again after
that. See id. 192-93.
Wiggins and her husband met with Croom about the incident. Croom then called Moore so
that Moore could tell him about her investigation. Croom Dep. [D.E. 51-15] 34. Croom also may
have asked Newsome about the incident when Newsome met with Croom to discuss her resignation.
See Newsome Dep. 188. A deputy from the Johnston County Sheriff's Department also asked
Newsome about the incident. See Newsome Dep. 249-50. J.W.'s parents kept him out of school
towards the end of the year to avoid the risk of further encounters with S.L., and they transferred
J.W. to an out-of-county school the following year. See Wiggins Decl. [D.E. 51-3] 10-11.

II.
On December 7, 2011, J. W ., by and through his parent and guardian, and Newsome initiated
this action against Croom and Moore, both in their individual and official capacities, and the Board.
See Compl. [D.E. 1]. The court granted defendants' motion to dismiss several of plaintiffs' claims,
see [D.E. 27], and the following claims remain:
(1) J.W. claims that the Board created a hostile education environment for him, and
discriminated against him because of his sex and disability, in violation of the
Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213; Section 504
of the Rehabilitation Act of 1973 ("Section 504"), 29 U.S.C. § 794, Title IX of the
Education Amendment of 1972 ("Title IX"), 20 U.S.C. §§ 1681-1688, and the
Fourteenth Amendment of the United States Constitution. See Am. Compl. ,,
78-91; [D.E. 27] 9-12.
(2) Newsome claims that the Board retaliated against her for attempting to enforce
the rights of her special-education students, in violation of Title IX, the Individuals
with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1482, and the
Fourteenth Amendment. See Am. Compl. ,,99-108; [D.E. 27] 9-12.

8

(3) Newsome claims that Moore and Croom, acting in their individual capacities, and
the Board, retaliated against Newsome for voicing her concerns about the alleged
assault of J. W. and the consolidation of Life Skills classes at SMS, in violation of the
First Amendment. See Am. Compl. ~~ 109-17.
(4) Plaintiffs claim that Moore and Croom, acting in their individual capacities, and
the Board, are liable as supervisors under 42 U.S.C. § 1983 for being "deliberately
indifferent to the constitutional rights of ... disabled children at [the School]" by
failing to prevent S.L. from sexually assaulting intensive-needs students. See id. ~~
118-25.
(5) Both J. W. and Newsome claim that Moore and Croom, acting in their individual
capacities, and the Board, based on the conduct ofits employees while acting within
the scope of their employment, intentionally inflicted severe emotional distress on
J.W. and Newsome. See id. ~~ 131-37, 16~3.
Defendants have moved for summary judgment on the remaining claims [D.E. 39]. Summary
judgment is proper if"the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247-48 (1986).
In evaluating amotion for summary judgment, the court views the evidence and the inferences drawn
from that evidence in the light most favorable to the nonmoving party. See Tolan v. Cotton, 134 S.
Ct. 1861, 1863 (2014) (per curiam); Scott v. Harris, 550 U.S. 372, 378 (2007).
The party seeking summary judgment bears the initial burden of demonstrating the absence
of a genuine issue of material fact. See Celotex, 477 U.S. at 325. Once the moving party has met
its burden, the nonmoving party "must come forward with specific facts showing that there is a
genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986) (emphasis and quotation omitted). The nonmoving party must do more than present a
"scintilla of evidence" in its favor. Anderson, 477 U.S. at 252. Rather, the nonmoving party must
present "sufficient evidence" such that reasonable jurors could find for it. ld. at 249. Accordingly,
a court may grant summary judgment if the nonmoving party's evidence is "merely colorable" or
9

"not significantly probative." Id. at 249-50; see Evans v. Techs. Applications & Serv. Co., 80 F.3d
954, 962 (4th Cir. 1996). The court denies defendants' motion to strike [D.E. 54], but considers
declarations and affidavits only to the extent they are consistent with the affiant's or declarant's prior
deposition testimony. See,~' Rohrbough v. Wyeth Labs .. Inc., 916 F.2d 970, 975-76 (4th Cir.
1990).

A.
The court first addresses J.W.'s hostile educational environment claim against the Board.
Under Title IX, ''No person in the United States 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(aV Title IX's
prohibition on sex-based discrimination encompasses student-on-student sexual harassment. See
Davis v. Monroe Cnty. Bd. ofEduc., 526 U.S. 629, 646-47 (1999). "A school district may be held
liable under Title IX only for its own misconduct," not for the misconduct of its agents or those
underitscontrol. Baynard v. Malone, 268 F.3d228, 237 (4thCir. 2001); see Davis, 526 U.S. at640.
Thus, to prove a Title IX claim on the basis of student-on-student sexual harassment, a plaintiff must
show that (1) he was a student at an educational institution receiving federal funds; (2) he was
subjected to harassment based on his sex; (3) the harassment was so severe, pervasive, and
objectively offensive that it created a hostile or abusive educational environment; and (4) the
educational institution had actual knowledge ofthe harassment but was deliberately indifferent. See
Davis, 526 U.S. at 650; Rouse v. Duke Univ., 535 F. App'x 289, 293 n.* (4th Cir. 2013) (per
curiam) (unpublished); Jennings v. Univ. ofN.C., 482 F.3d 686, 695 (4th Cir. 2007) (en bane).

2

The Board receives federal funding and is subject to Title IX.
10

Assuming without deciding that J. W. was subjected to harassment based on his sex and that
the alleged one-time incident of sexual harassment by S.L. was sufficiently severe, pervasive, and
objectively offensive to create a hostile or abusive educational environment, J. W. has not shown
that there is a genuine issue of material fact concerning whether the Board was deliberately
indifferent to the alleged harassment. An educational institution is only deliberately indifferent to
acts of student-on-student sexual harassment if its response (or lack thereof) to the sexual
harassment is "clearly unreasonable in light of the known circumstances," and in general, "[c]ourts
should refrain from second-guessing the disciplinary decisions made by school administrators."
Davis, 526 U.S. at 648. The record shows that Moore thoroughly investigated the alleged assault
as soon as she became aware of it, attempted to prevent any further contact between J.W. and S.L.,
and kept Croom informed. Defendants' response does not reflect deliberate indifference.

See,~,

Kinman v. Omaha Pub. Sch. Dist., 171 F.3d 607, 609-10 (8th Cir. 1999). Accordingly, the court
grants summary judgment to defendants on J.W.'s Title IX hostile educational environment claim.
As for J.W.'s hostile educational environment based on disability claims under the ADA,
Section 504 of the Rehabilitation Act, and the Fourteenth Amendment, the ADA states that "[n]o
individual shall be discriminated against on the basis of disability in the full and equal enjoyment
of the goods, services, privileges, advantages, or accommodations of any place of public
accommodation." 42 U.S.C. § 12182(a). Section 504 of the Rehabilitation Act states that "[n]o
otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be
excluded from the participation in, be denied the benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). Assuming
without deciding that a cause of action for a hostile educational environment based on disability
exists under those statutes or the Fourteenth Amendment, to prove such a claim J. W. would have
11

to show severe and pervasive harassment based on his disability, and deliberate indifference to that
harassmentontheBoard'spart. See,~, Guckenbergerv. Boston Univ., 957F. Supp. 306,314 (D.
Mass. 1997). J. W., however, has not offered evidence to permit a rational jury to fmd any
harassment or discrimination based on his disability, much less severe and pervasive harassment or
discrimination based on his disability. Likewise, no rational jury could find that the Board was
deliberately indifferent. Accordingly, the court grants summary judgment to defendants on J.W.'s
hostile educational environment based on disability claims under the ADA, Section 504 of the
Rehabilitation Act, and the Fourteenth Amendment.

B.
Next, the court addresses Newsome's claim that the Board retaliated against her for
attempting to enforce the rights of her special-education students, in violation of Title IX, the
Individuals with Disabilities Education Act ("IDEA"), 20 U.S. C. §§ 1400--1482, and the Fourteenth
Amendment. "[W]hen a funding recipient retaliates against a person because [s]he complains of sex
discrimination, this constitutes intentional 'discrimination' 'on the basis of sex,' in violation ofTitle
IX." Jackson v. Birmingham Bd. ofEduc., 544 U.S. 167, 174 (2005). Newsome claims the Board
retaliated against her for informing Moore that she had seen S.L. in J.W.'s art class after Moore had
told S.L. that he was not to be in the class. See Mem. Opp. Summ. J. [D.E. 51] 13-14. Newsome
admitted in her deposition, however, that Moore immediately addressed that issue and that Newsome
never again saw S.L. in the art class. Newsome Dep. 192-93. Moreover, Newsome has not offered
a shred of evidence suggesting that any event related to J.W.'s alleged assault had anything to do
with Moore's decision to not recommend that Newsome's contract be renewed after the 2008-2009
school year. Accordingly, the court grants summary judgment to defendants on Newsome's Title
IX retaliation claim. For the same reasons, the court grants summary judgment to defendants on
12

Newsome's Fourteenth Amendment retaliation claim.
As for Newsome's IDEA retaliation claim, Congress enacted the IDEA "to ensure that all
children with disabilities have available to them a free appropriate public education" and "to ensure
that the rights of children with disabilities and parents of such children are protected." 20 U.S.C.
§ 1400(d)(1). The IDEA requires school districts to create "individualized educational programs,"
or"IEPs," foreachoftheirdisabledstudents. 20U.S.C. § 1414(d)(2)(A); see Schafferv. Weast, 546
U.S. 49, 51-53 (2005). IEPs are developed in a "cooperative process" between parents and schools.
Schaffer, 546 U.S. at 53. If parents and schools disagree about the content of a child's IEP, the
IDEA provides for an administrative process to resolve the disagreement. 20 U.S.C. § 1415(f).
Then, if either party is "aggrieved by the fmdings and decision made" through the administrative
process, that party may bring a civil action. Id. § 1415(i)(2); see Winkleman v. Parma City Sch.
Dist., 550 U.S. 516, 525-27 (2007). Thus, the IDEA "establishes a private right of action for
disabled children and their parents" who have exhausted the administrative process and yet been
unable to obtain a satisfactory IEP. Lake Washington Sch. Dist. No. 414 v. Office of Superintendent
ofPub. Instruction, 634 F.3d 1065, 1068 (9th Cir. 2011); Lawrence Township Bd. ofEduc. v. New
Jersey, 417 F.3d 368, 371 (3d Cir. 2005). The IDEA does not, however, establish a private right of
action for special-education teachers or other advocates for disabled students.

See,~.

Wooderts

v. Dallas I.S.D., No. 3-10-CV-0573-P, 2010 WL 2160144, at *2 (N.D. Tex. May 3, 2010), adopted,
2010 WL 2160142 (N.D. Tex. May 26, 2010) (unpublished); Ryan v. Shawnee Mission U.S.D. 512,
416 F. Supp. 2d 1090, 1098 (D. Kan. 2006). Accordingly, the court grants summary judgment to
defendants on Newsome's IDEA retaliation claim. 3

3

In support of her IDEA claim, Newsome cites Settlegood v. Portland Public Schools, 371
F.3d 503, 509-10 (9th Cir. 2004), and Weber v. Cranston School Committee, 212 F.3d 41, 51 (1st
13

c.
Next, the court addresses Newsome's First Amendment retaliation claim. To prevail on the
claim, Newsome must show that ( 1) she spoke as a citizen on a matter of public concern, rather than
as an employee on a matter of private interest, (2) her interest in speaking on the matter of public
concern outweighed the defendants' interest in providing effective and efficient public service, (3)
defendants took some action against her that deprived her of a valuable government benefit or that
would tend to chill her protected speech; and (4) a causal relationship existed between her protected
speech and the retaliation. See,~. Smith v. Gilchrist, 749 F.3d 302, 308 (4th Cir. 2014); Bland
v. Roberts, 730 F.3d 368, 373-75 (4th Cir. 2013); Peters v. Jenney, 327 F.3d 307, 322 (4th Cir.
2003); Goldstein v. ChestnutRidge Volunteer Fire Co., 218 F.3d 337,351-52,356 (4th Cir. 2000);
McVey v. Stacy, 157 F.3d 271, 277-78 (4th Cir. 1998).
Newsome contends that defendants impermissibly retaliated against her for speaking about
two topics: the alleged sexual assault of J.W. and the consolidation of Life Skills classes at SMS.
See Mem. Opp. Summ. J. 21-23. In neither case has she created a genuine issue of material fact as
to whether she spoke as a citizen on a matter of public concern. Whether a public employee has
spoken as a citizen on a matter of public concern is a question of law for the court. See,

~.

Connick v. Myers, 461 U.S. 138, 148 n.7 (1983); Urofsky v. Gilmore, 216 F.3d 401,406 (4th Cir.
2000) (en bane); Huang v. Bd. of Governors ofUniv. ofN.C., 902 F.2d 1134, 1140 (4th Cir. 1990).
"[W]hen public employees make statements pursuant to their official duties," and not in their

Cir. 2000). Neither case supports the proposition that the IDEA gives Newsome a private right of
action. Settlegood involved a teacher's claims under the First Amendment and Section 504 of the
Rehabilitation Act, not the IDEA. See Settle good, 371 F .3d at 509. Weber involved a parent's claim
under Section 504 of the Rehabilitation Act, not directly under the IDEA, and involved the parent
of a disabled child, not a teacher or other advocate. See Weber, 212 F .3d at 44-4 7.
14

capacities as private citizens, ''the Constitution does not insulate their communications from
employer discipline." Garcetti v. Ceballos, 547U.S. 410,421 (2006); seeAndrewv. Clark, 561 F.3d
261, 267--68 (4th Cir. 2009); Urofksy, 216 F.3d at 406--{)9. 4 Even when public employees do not
speak pursuant to their official job duties, the First Amendment insulates them from adverse
employment action only if the "content, form, and context" of the speech, "as revealed by the whole
record," show that the speech involved a matter of public concern. Connick, 461 U.S. at 147--48;
see,~. City of San Diego v. Roe, 543 U.S. 77, 83 (2004) (per curiam); Durham v. Jones, 737 F.3d

291,299 (4th Cir. 2013). "This is a subtle, qualitative inquiry," requiring ''the exercise of common
sense." Goldstein, 218 F.3d at 353; see Connick, 461 U.S. at 143 (acknowledging the "commonsense realization that government offices could not function if every employment decision became
a constitutional matter").
As for content, "[s]peech involves a matter of public concern when it involves an issue of
social, political, or other interest to a community." Urofksy, 216 F.3d at 406, see,~. City of San
Diego, 543 U.S. at 83-84; Campbell v. Galloway. 483 F.3d 258, 267 (4th Cir. 2007). In contrast,
"it is settled that a public employee's expression of grievances concerning [her] own employment
is not a matter of public concern." Huang, 902 F.2d at 1140; see Borough of Duryea v. Guarnieri,
131 S. Ct. 2488, 2501 (20 11 ); Campbell, 483 F.3d at 267; Stroman v. Colleton Cnty. Sch. Dist., 981
F.2d 152, 156 (4th Cir. 1992).

After all, "government offices could not function if every

4

In Garcetti, the Court recognized "some argument" that this rule may not apply when an
employee's job duties involve "expression related to academic scholarship or classroom instruction."
Garcetti, 547 U.S. at 425. Nonetheless, when a teacher is performing administrative duties, as
opposed to instructional duties, the Garcetti rule fully applies. See Adams v. Trustees ofUniv. of
N.C.-Wilmington, 640 F.3d 550, 563--64 (4th Cir. 2011).
15

employment decision became a constitutional matter." Connick, 461 U.S. at 143; see Brooks v.
Arthur, 685 F.3d 367,373 (4th Cir. 2012); Holland v. Rimmer, 25 F.3d 1251, 1255 (4th Cir. 1994).
The distinction between private employee grievances and issues of public concern can be
murky, however, because"[e]very public employee's job by definition affects the public." Robinson
v. Balog, 160 F.3d 183, 189-90 (4th Cir. 1998). Thus, courts look to the context and form of an
employee's statements to ensure the employee does not "cunningly transform a simple employment
grievance into a public spectacle." Id. at 189; see Connick, 461 U.S. at 148. In general, speech is
less likely to be of public concern if the context suggests that the employee was motivated more by
self interest than by the public interest. See,~' Hanton v. Gilbert, 36 F.3d 4, 7 (4th Cir. 1994);
Joynerv. Lancaster, 815 F.3d 20,23 (4th Cir. 1987); Lewis v. Blackburn, 734 F.2d 1000, 1010 (4th
Cir. 1984) (Ervin, J., dissenting), dissent adopted, 759 F.2d 1171 (4th Cir. 1985) (en bane); cf.
Campbell, 483 F.3dat270; Piverv. PenderCnty. Bd. ofEduc., 835 F.2d 1076, 1080 (4th Cir. 1987).
For example, if the speech at issue was made in unison by several employees, it is more likely to be
on a matter of public concern, and not ''the expression of a single disgruntled employee." Cromer
v. Brown, 88 F.3d 1315, 1326 (4th Cir. 1996); see Brooks, 685 F.3d at 374.

In the public-schools context, the Fourth Circuit has cautioned that simply because an issue
"affects [the] ability to teach" does not make the issue one of public concern. After all, "[t]he
identical point can be made about innumerable conditions at a school, including, for example, the
number of teacher aides, the tightness of class scheduling, the size of blackboards, or the adequacy
oflaboratory equipment." Daniels v. Quinn, 801 F.2d 687,690 (4th Cir. 1986). "Questions of this
sort do not belong in federal court. They are best resolved by local school boards and individual
school administrators. To accord to all such grievances the status of protected speech is to invite a

16

measure of educational involvement that federal tribunals are ill equipped to undertake." Id.; see
also Boring v. Buncombe Cnty. Bd. ofEduc., 136 F.3d 364, 369-71 (4th Cir. 1998) (en bane).
In applying these principles, the Fourth Circuit has held that teachers did not address issues

of public concern by complaining to a school board member about not receiving particular
instructional materials, Daniels, 801 F.2d at 690, or disputing whether a controversial play or
controversial bulletin-board items were consistent with the school's curriculum. Lee v. York Cnty.
Sch. Div., 484 F.3d 687,694 (4th Cir. 2007); Boring, 136 F.3d at 368-70; see also Fox v. Traverse
City Area Pub. Schs. Bd. ofEduc., 605 F.3d 345, 348-49 (6th Cir. 2010) (holding that a teacher's
complaints to administrators about class size did not address an issue of public concern) Cliffv. Bd.
ofSch. Comm'rs, 42 F.3d 403,410-11 (7th Cir. 1994) (same). In contrast, the Fourth Circuit has
held that teachers did address issues of public concern by publicly advocating for the renewal of a
principal's contract, Piver, 835 F.2d at 1078-80, by writing a satirical letter to the school's
newspaper concerning allegations of systemic gender discrimination at the school, Seemuller v.
Fairfax Cnty. Pub. Schs., 878 F.2d 1578, 1582-83 (4th Cir. 1989), and by criticizing the school
board's budgeting decisions in letters to the local newspaper and in other ways. Hall v. Marion
School Dist. No.2, 31 F.3d 183, 192-93 (4th Cir. 1994); see Pickering v. Bd. ofEduc., 391 U.S.
563, 571-72 (1968).
As for Newsome's claimed speech about the alleged sexual assault of J. W ., the record shows
that her speech consisted ofbeing interviewed by Moore about the incident and notifying Moore that
she had seen S.L., the alleged perpetrator, in J.W.'s art class after Moore had prohibited S.L. from
being there. 5 Newsome engaged in this speech pursuant to her job duties as a teacher at SMS, and

5

Newsome suggests that Croom may have asked her about J. W.' s assault when she met with
him to discuss her resignation, but she does not remember whether Croom actually asked her about
17

therefore was speaking as an employee, and not as a private citizen. See Garcetti, 547 U.S. at 421;
Urofksy, 216 F.3d at 406--09. Moreover, the record contains no indication that Newsome was
dissatisfied with Moore,s or Croom,s response to the alleged assault of J.W., much less that
Newsome engaged in the sort of public advocacy that the First Amendment would protect. Indeed,
when Newsome notified Moore that she had seen S.L. in J. W., s art class, Newsome felt that Moore
"took immediate care,, of the issue and Newsome never saw S.L. in the art class again. See
Newsome Dep. 192-93.
As for Newsome,s speech about the consolidation of Life Skills classes at SMS, the record
shows that the speech involved a personal grievance about working conditions rather than advocacy
on an issue of public concern. To be sure, the size of special-education classes could be an issue of
public concern, but here, the content, form, and context ofthe speech as revealed by the whole record
show Newsome was motivated by her own concerns about her capacity to manage her expanded job
responsibilities. See Fox, 605 F.3d at 348-49; Cliff, 42 F.3d at 410-11. Newsome attempted to
engineer the spectre of widespread concern by including other teachers, names (without their
knowledge or consent) in her letter to parents. In truth, however, Newsome was expressing the
dissatisfactions of a single employee.

See,~,

Cromer, 88 F.3d at 1326. Accordingly, Newsome

has not created a genuine issue of material fact concerning whether she spoke as a citizen on a matter
of public concern.
Newsome also has failed to create a genuine issue of material fact as to whether her interest
in speaking about the consolidation of Life Skills classes at SMS outweighed defendants, interest
in providing effective and efficient public service. "Just as an employee has a right to speak-even

J. W., s assault, and if he did, she does not suggest what she might have said in return. See Newsome
Dep. 188.
18

at work-public employers have the right to run efficient, functional operations, and [courts] must
ensure the proper balance between these competing interests." Goldstein, 218 F .3d at 3 51; see Lane
v. Franks, 134 S. Ct. 2369,2377 (2014); Garcetti, 547 U.S. at 418; Rankin v. McPherson, 483 U.S.
378, 384 (1987); Connick, 461 U.S. at 151-54; Pickering, 391 U.S. at 568.

In conducting this balancing, courts are to examine the extent to which the speech at issue
impaired the maintenance of discipline by supervisors, impaired harmony among coworkers,
prevented the employee from fulfilling her job responsibilities, or otherwise impaired the functioning
of the employer agency, among other factors not relevant here. See Smith, 749 F.3d at 309; Bland,
730 F.3d at 374; Ridpath v. Bd. of Governors Marshall Univ., 446 F.3d 292, 317 (4th Cir. 2006);
McVey, 157 F.3d at 278. Although Newsome struggled to fulfill her job responsibilities, and in
doing so impaired the ability ofSMS to fulfill its mission, nothing suggests that Newsome's speech
caused those shortcomings. The record does, however, show that Newsome challenged the authority
of the SMS administration by continuing to question whether they had properly interpreted the DPI
guidelines as to what her class size should be. "When employee speech concerning office policy
arises from an employment dispute concerning the very application of that policy to the speaker,"
as happened in this case, "additional weight must be given to the supervisor's view that the
employee has threatened the authority of the employer to run the office." Connick, 461 U.S. at 153.
Furthermore, Newsome's unauthorized use of her coworkers' names on a letter to parents could
reasonably be anticipated to impair harmony among coworkers. See Smith, 749 F.3d at 309
(explaining that the employer need not "prove that the employee's speech actually disrupted
efficiency, but only that an adverse effect was reasonably to be apprehended" (quotation omitted));
see Connick, 461 U.S. at 152. "[S]chool districts must have wide latitude to run schools." Hall, 31
F.3d at 195; Stroman, 981 F.2d at 156-60. Defendants' actions in this case were well within that
19

wide latitude. Accordingly, Newsome has failed to create a genuine issue ofmaterial fact concerning
whether her interest in speaking about the consolidation of Life Skills classes at SMS outweighed
defendants' interest in providing effective and efficient public service.
Finally, Newsome also has failed to create a genuine issue of material fact concerning
causation. In First Amendment retaliation cases, "[t]he causation requirement is rigorous." Huang,
902 F .2d at 1140. The employee initially must show that the protected expression was a substantial
or motivating factor in the employer's decision to take adverse action. Bland, 730 F.3d at 375;
Peters, 327 F.3d at 323; Stroman, 981 F.2d at 156; Maciariello v. Sumner, 973 F.2d 295, 299 (4th
Cir. 1992). If the employee meets that burden of proof, the burden then shifts to the employer to
show that it would have taken the adverse action even if the employee had not engaged in the
protected speech. Bland, 730 F.3d at 375; Peters, 327 F.3d at 323.
Here, Moore expressly stated that her May 2009 decision not to recommend renewal of
Newsome's contract had "nothing to do with" Newsome's advocacy and was based solely on her
performance in 2008-2009 as a classroom teacher. Moore Dep. 134-37; see Moore Aff. ~ 6. 6
Newsome attempts to refute Moore's testimony and cites three pieces of evidence. First, Newsome
citesherend-of-yearteacherevaluations. SeePls.' Mem. Opp. Summ. J. 19-20. Newsome's yearend evaluations and the record, however, support Moore's contention that Newsome's performance
deteriorated during the 2008-2009 school year. In prior years, Newsome had been rated at or above
standard in all categories, but in 2008-2009, she had no above-standard ratings, and many ofher at-

6

In addition to Moore's non-renewal recommendation, Newsome claims that Moore's formal
letter of reprimand on October 21, 2008, and Croom's July 2009 refusal to allow Newsome to
withdraw her resignation were retaliatory adverse actions. See Pls.' Mem. Opp. Summ. J. 18.
Rather than engaging in an independent analysis for each action, the court analyzes them as part of
the ''whole record" of actions that culminated in Newsome's not being rehired after the 2008-2009
school year. See,~. Connick, 461 U.S. at 143, 147-48.
20

standard ratings were noted as being "minimally at standard," needing significant improvement. See
[D.E. 51-20]. Moreover, in 2009, the Board's policy was that "at standard" performance was not
enough to guarantee a grant of career status, much less "minimally at standard" performance.
Additionally, the record teems with evidence that Newsome did struggle as a teacher in the
2008-2009 school year, despite Moore's efforts to help her. Cf. Goldstein, 218 F.3d at 358 (finding
that efforts to ameliorate an employee's complaints support an employer's contention that it did not
retaliate against the employee for making those complaints).
Second, Newsome cites statements by Wiggins and another parent, Pamela Deans, that
Newsome was a good teacher. See Mem. Opp. Summ. J. 20 (citing Wiggins Decl. [D.E. 51-3] ~ 4
and Deans Decl. [D.E. 51-6] ~ 10). These statements, however, shed no light on the relevant
question, which is how Moore, Croom, and the Board perceived Newsome to be performing as a
teacher in the 2008-2009 school year.

See,~'

King v. Rumsfeld, 328 F.3d 145, 149 (4th Cir.

2003); Hawkins v. PepsiCo. Inc., 203 F.3d 274, 280 (4th Cir. 2000).
Third, Newsome contends that her advocacy preceded the deterioration in her teacher
evaluations during 2008-2009 and thereby raises a genuine issue of material fact concerning
causation. Newsome, however, offers no evidence that her teaching did not deteriorate during the
2008-2009 year, and defendants offer ample evidence about the deterioration (including efforts to
help her improve). Furthermore, Newsome offers no evidence that her contract would have been
renewed in June 2009 had she never spoken about the consolidation of Life Skills classes at SMS
in May 2008 or the assault of J. W. in April2009. Finally, this court rejects Newsome's reliance on
the fallacy of false cause (i.e., post hoc ergo propter hoc). Simply put, on this record, the fact that
Newsome's advocacy preceded her poor performance as a teacher during the 2008-2009 school year,
Moore's May 2009 non-renewal recommendation, and Newsome's decision to resign in June 2009,
21

does not permit an inference of causation between her speech and any adverse employment action.
See,~' Clark Cnty Sch. Dist. v. Breeden, 532 U.S. 268,273 (2001) (per curiam); King, 328 F.3d

at 151. Likewise, no evidence suggests that, in July 2009, Croom considered Newsome's advocacy
in deciding not to allow Newsome to withdraw her resignation. Accordingly, the court grants
summary judgment to defendants on Newsome's First Amendment retaliation claim.

D.
Next, the court addresses plaintiffs' "supervisory liability" claim pursuant to 42 U.S.C. §
1983. Section 1983 provides a right of action against "[e]very person who, under color of any
statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected,
any citizen of the United States or other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983.
"If there is no violation of a federal right, there is no basis for a section 1983 action." Hodge
v. Jones, 31 F.3d 157, 167 (4th Cir. 1994) (quotation omitted). Neither J.W. nor Newsome was
deprived of any federal right. Accordingly, the court grants summary judgment to defendants on
plaintiffs' section 1983 claim.

E.
Finally, the court addresses plaintiffs' claim of intentional infliction of emotional distress.
"The essential elements of an action for intentional infliction of emotional distress are (1) extreme
and outrageous conduct by the defendant (2) which is intended to and does in fact cause (3) severe
emotional distress." Waddle v. Sparks, 331 N.C. 73, 82, 414 S.E.2d 22, 27 (1992) (quotation
omitted);

see,~,

Moody-Williams v. LipoScience, 953 F. Supp. 2d 677, 682 (E.D.N.C. 2013).

"Conduct is extreme and outrageous when it is so outrageous in character, and so extreme in degree,
as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly
22

intolerable in a civilized community." Smith-Price v. Charter Behavioral Health Sys., 164 N.C. App.
349,354,595 S.E.2d 778,782 (2004); see Wagonerv. Elkin City Sch.'s Bd. ofEduc., 113 N.C. App.
579, 586,440 S.E.2d 119, 123 (1994). Whether conduct is "extreme and outrageous" is a question
oflaw. Lenins v. K-Mart Corp., 98 N.C. App. 590,599,381 S.E.2d 843, 848 (1990).
North Carolina courts have been extremely reluctant to find actionable intentional infliction
of emotion distress claims in the employment context.

See,~. Bratcher v. Pharm. Prod. Dev .. Inc.,

545 F. Supp. 2d 533, 544-45 (E.D.N.C. 2008) (collecting cases). Newsome's claim arises in the
employment context and fails. See id. J. W.' s claim does not arise in the employment context.
Nonetheless, as a matter of law, plaintiffs have offered no evidence that defendants engaged in
conduct that is "extreme and outrageous" under North Carolina law. Likewise, no rational jury could
find that defendants ratified extreme and outrageous conduct. Cf., ~.Bryant v. Thalhimer Bros ..

we.,

113 N.C. App. 1, 16, 437 S.E.2d 519, 529 (1993). Accordingly, the court grants summary

judgment to defendants on plaintiffs' intentional infliction of emotional distress claim.

III.
In sum, the court DENIES defendants' motion to strike [D.E. 54], GRANTS defendants'
motion to seal [D.E. 41], and GRANTS defendants' motion for summary judgment [D.E. 39]. The
clerk shall close the case.
SO ORDERED. This 2A: day of September 2014.

4 ..b ...~u.

J
S C. DEVER III
Chief United States District Judge

23