WELCH-WALKER v. GUILFORD COUNTY BOARD OF EDUCATION et al

Filing 28

MEMORANDUM OPINION AND RECOMMENDED RULING - MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 12/10/2014. RECOMMENDED that Defendants' Motion to Dismiss [Doc. # 14 ] be granted, and that this action be dismissed. (Butler, Carol)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
LEDRA WELCH-WALKER,
Plaintiff,
v.
GUILFORD COUNTY BOARD OF
EDUCATION, MICHELLE THIGPEN,
individually and in her capacity as Principal,
Defendants.

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1:12CV149

MEMORANDUM OPINION AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on a Motion to Dismiss [Doc. #14] filed by Defendant
Guilford County Board of Education (“Defendant Board of Education”) and Defendant
Michelle Thigpen (“Defendant Thigpen”). Plaintiff Ledra Welch-Walker is a former elementary
school teacher who asserts claims pursuant to 42 U.S.C. § 1983, alleging that Defendants
violated her Fourteenth Amendment due process rights by not renewing her probationary
teaching contract. Plaintiff also claims that Defendant Thigpen maliciously interfered with her
teaching contract in violation of North Carolina law. For the reasons stated below, Defendants’
Motion to Dismiss should be granted, and this action should be dismissed.
I.

FACTS, CLAIMS, AND PROCEDURAL HISTORY
Plaintiff Ledra Welch-Walker, proceeding pro se, alleges in her Complaint that she was

employed by Defendant Board of Education pursuant to a probationary teaching contract.
(Compl. [Doc. #2] ¶ 5.) Plaintiff alleges that in August 2009 she was transferred from Parkview
Elementary School to Colfax Elementary School where Defendant Thigpen was the principal.

(Id. ¶¶ 8, 16.) Plaintiff alleges that when she was transferred to Colfax, Defendant Thigpen was
unhelpful in setting up Plaintiff’s second-grade classroom and in helping acclimate Plaintiff to
her new environment at Colfax. Plaintiff further alleges that Defendant Thigpen required
Plaintiff to submit her lesson plans every Monday, gave Plaintiff extra duties preparing a
newsletter, and told Plaintiff to change the order in which she taught her subjects. Plaintiff also
alleges that Defendant Thigpen placed students who had parents with “strong personalities” in
her classroom. Plaintiff states that she began having problems with the parents of the students
in her classroom, and that after the school’s open house, the parents “started bombarding” her
with numerous emails and phone calls. (Id. ¶ 38.) Plaintiff states that the parents began an
online blog about Plaintiff “expressing their desire to get rid of Plaintiff.” (Id. ¶ 40.) In
September 2009, Defendant Thigpen allegedly told Plaintiff that the parents were complaining
about Plaintiff’s homework assignments, guided reading, and newsletters. Plaintiff claims that
the parents violated school policy by complaining directly to the principal rather than to her.
Plaintiff further contends that on September 23, 2009, Defendant Thigpen “held a secret
meeting with a parent who asked Defendant Thigpen to remove his son from Plaintiff’s
classroom because he did not like Plaintiff or her teaching style.” (Id. ¶ 43.) Three days later,
Defendant Thigpen allegedly “wrote Plaintiff up based upon the Parent’s allegations” without
giving Plaintiff an opportunity to respond. (Id. ¶ 44.)
Plaintiff further alleges that in October 2009, Defendant Thigpen placed her on an
“action plan.” Plaintiff also alleges that during that same month, a parent sneaked into her
classroom before school and began ransacking Plaintiff’s desk. When Plaintiff entered the

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room, the parent started yelling at Plaintiff. Plaintiff exited the room, but the parent followed
her into the hallway screaming. Defendant Thigpen came into the hallway, saw the parent, and
the parent told Defendant Thigpen that she wanted Plaintiff fired and her son removed from
Plaintiff’s classroom. (Id. ¶¶ 47-53.) The parent then allegedly stated that she wanted a meeting
with administration and did not want “that Black Supervisor to be at this meeting.” (Id. ¶ 54.)
Defendant Thigpen then allegedly asked the parent, “You don’t want to have this conversation
now do you?” (Id. at 57.) Plaintiff alleges that she is black but these parents and Defendant
Thigpen are white. (Id. at 59.) According to Plaintiff, Defendant Thigpen “communicated to
parents that she too wanted Plaintiff gone, that her hands were tied, and that it was her goal to
have Plaintiff gone by November 01, 2009.” (Id. ¶ 58.)
Plaintiff also accuses Defendant Thigpen of taking confidential information about the
disability of one of Plaintiff’s daughters and informing Defendant Board of Education about it
in an effort to prejudice the Board against Plaintiff. In addition, Plaintiff alleges that Defendant
Thigpen accused Plaintiff of not giving a student his medicine and noted the incident in
Plaintiff’s personnel file, even though Plaintiff provided evidence that she had in fact given the
student his medicine. Plaintiff states that when she complained to school personnel about her
treatment, she was told that she should resign. Plaintiff alleges that she was subsequently
suspended with pay for a few days. When she returned from suspension, her belongings were
packed up. Plaintiff alleges that in May 2010, she received written notice that she was being
recommended for non-renewal of her teaching contract. She then requested a hearing and
copies of the documents that were to be provided as the basis for the non-renewal. Plaintiff

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alleges that she received the documents on May 17, 2010. Plaintiff states that ten days later, on
May 27, she received a telephone call and was told that she had three hours to send her
response. (Id. ¶ 87.) She was told that the Board “was going to hold a hearing without her.”
(Id. ¶ 88.) She “rushed to prepare something, but was not able to accurately refute the hundreds
of documents in the time allotted.” Shortly thereafter, Plaintiff was informed that she had not
been renewed. (Id. ¶ 89.)
After the non-renewal, Plaintiff filed a claim for unemployment benefits. Plaintiff
contends that Defendant Board “presented evidence in support of the denial of Plaintiff’s
unemployment benefits,” but that she was nevertheless approved for benefits. (Id. ¶ 91.)
Plaintiff charges that the “accusations utilized by Defendant Board in their attempt to deny
Plaintiff’s unemployment claim were not creditable, and were only used in the furtherance of
discriminatory practices perpetrated against the Plaintiff by the Defendant.” (Id. ¶ 92.) Plaintiff
alleges that she has applied for many jobs but “has not been able to teach because of the nonrenewal on her record.” (Id. ¶ 97.)
Plaintiff’s First Cause of Action is labeled as a claim for violation of procedural due
process against all Defendants. Plaintiff states that she is proceeding under section 1983 and
section 1988. (Compl. [Doc. #2] at 12.) She claims that Defendants deprived her of her liberty
interest in future employment. She says that Defendant Board was aware of the stigmatization
and hardship that would follow a non-renewal and failed to provide for adequate pre-deprivation
process. Plaintiff contends that the actions of Defendants represent an arbitrary use of
governmental power.

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Plaintiff’s Second Cause of Action is against Defendant Thigpen individually for
malicious interference with contract.

Plaintiff alleges that “an express and/or implied

contractual relationship for continued employment existed between Defendant Board and
Plaintiff,” that Defendant Thigpen knew of this contractual relationship, that Defendant
Thigpen willfully gave false statements to Defendant Board and others implicating Plaintiff in
misconduct, and by doing so induced Defendant Board not to perform its contractual
obligations and to terminate Plaintiff’s employment. (Id. ¶¶ 110-117.)
Plaintiff also states that she does not have sufficient information to determine whether
her termination was the result of intentional racial discrimination. (Id. ¶¶ 118-119.) She says
that she may wish to add such claims in the future. Plaintiff seeks injunctive and declaratory
relief as well as damages.
Defendants move to dismiss claiming that, first, Plaintiff cannot establish a deprivation
of due process because she has not alleged a protected liberty or property interest. (Defs.’ Br.
[Doc. #15] at 5-8.) Defendants also argue that Plaintiff failed to appeal the non-renewal of her
probationary contract as allowed under North Carolina law, and that she was not entitled to a
pre-deprivation hearing. (Id. at 8-15.) To the extent Plaintiff raises contentions regarding racial
discrimination, Defendants contend that Plaintiff’s Complaint should be dismissed as an attempt
to circumvent the limitation period for Title VII claims, because the suit was filed more than 90
days following Plaintiff’s receipt of the EEOC’s Notice of Rights. (Id. at 10-11.) They also
argue that Plaintiff has failed to allege facts to state a claim upon which relief may be granted as
to the malicious interference with contract claim. As to that claim, Defendants argue that

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Plaintiff has failed to allege interference by Defendant Thigpen with a valid contract between
the Plaintiff and a third party. Defendants also argue that Defendant Thigpen, as principal, had
a legitimate business interest in the performance of one of her teachers and, thus, Plaintiff
cannot state a claim for malicious interference. Finally, Defendants contend that claims against
Defendant Thigpen are barred by qualified and public official immunity, and that punitive
damages are not recoverable in this suit.
II.

DISCUSSION
A.

Standard

A plaintiff fails to state a claim on which relief may be granted under Federal Rule of
Civil Procedure 12(b)(6) when the complaint does not “contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Iqbal, 556 U.S.
at 678.
B.

Fourteenth Amendment Due Process Claim

In her first claim, Plaintiff contends that her procedural due process rights were violated.
The Fourteenth Amendment prohibits the States from “depriv[ing] any person of life, liberty,
or property without due process of law.” U.S. Const. amend. XIV. Procedural due process
generally requires fair notice of impending state action and an opportunity to be heard.
However, to state a procedural due process claim, “a plaintiff must allege sufficient facts to

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support a finding that [she was] ‘deprived of life, liberty, or property, by governmental action.’”
Equity in Athletics, Inc. v. Dep’t of Educ., 639 F.3d 91, 109 (4th Cir. 2011) (quoting Beverati
v. Smith, 120 F.3d 500, 502 (4th Cir. 1997).) Plaintiff, of course, has not been deprived of life.
In both her Complaint [Doc. #2 ¶ 99 & p. 15] and Response Brief [Doc. #23 at 3, 7-12],
Plaintiff alleges a liberty interest in her continued employment. Plaintiff does not specifically
allege a property interest, but her contentions raise the possibility that she may be attempting to
allege deprivation of a property interest as well.
1.

Property interest

To the extent Plaintiff may be alleging deprivation of a property interest, the Court
concludes that Plaintiff has not stated a due process violation based on the deprivation of a
property interest under existing Fourth Circuit precedent. Property interests are created not by
the Due Process Clause but by “existing rules or understandings that stem from an independent
source such as state law.” Board of Regents v. Roth, 408 U.S. 564, 577 (1972). Plaintiff alleges
in her Complaint that the terms of her employment were governed by North Carolina General
Statute § 115C-325(m). (Compl. [Doc. #2] ¶ 13.) Subsection (m) applies to probationary
teachers. Subsection (m)(2) is of particular importance. It states that the “board, upon
recommendation of the superintendent, may refuse to renew the contract of any probationary
teacher or to reemploy any teacher who is not under contract for any cause it deems sufficient:
Provided, however, that the cause may not be arbitrary, capricious, discriminatory or for
personal or political reasons.” N.C. Gen. Stat. § 115C-325(m)(2) (2013).

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In Sigmon v. Poe, 564 F.2d 1093 (4th Cir. 1977), the Court of Appeals for the Fourth
Circuit determined that this exact statutory language (although then codified under a different
number) did not create a property interest under the Fourteenth Amendment. Sigmon, 564 F.2d
at 1096 (“We are, therefore, of opinion that, while the statute may create a right of action in the
State courts, it does not establish a property interest under the Fourteenth Amendment.”)
Moreover, Plaintiff does not specifically contend that her probationary contract created any
property interest, and Plaintiff has not alleged any facts to support the conclusion that she
possessed a property interest in her continued employment.
2.

Liberty Interest

Plaintiff claims that she “has not been able to teach because of the non-renewal on her
record.” (Compl. [Doc. #2] ¶ 97.) At another point in her Complaint, she states that the
Defendants “were on notice of the stigma and career ending effect a non-renewal had.” (Id. ¶
100.) Thus, it appears that Plaintiff’s claim is that the non-renewal itself is the cause of her
inability to find work, rather than any other public statements made by Defendants. The
Supreme Court has recognized that protected liberty interests include the freedom to “engage
in any of the common occupations of life.” Roth, 408 U.S. at 572. However, “it would stretch
the concept to[o] far ‘to suggest that a person is deprived of “liberty” when he simply is not
rehired in one job but remains as free as before to seek another.’” Bishop v. Wood, 426 U.S.
341, 348 (1976) (quoting Roth, 408 U.S. at 575, and noting that no liberty interest is implicated
by the decision not to retain an untenured college teacher, even if the nonretention “might make
him somewhat less attractive to other employers”). By alleging that the non-renewal itself

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deprived her of a protected liberty interest, Plaintiff has failed to state a claim upon which relief
may be granted.
The non-renewal of a contract accompanied by charges of dishonesty, immorality, or
other “stigma,” could raise a protected liberty interest. See, e.g., Roth, 408 U.S. at 573 (finding
no liberty interest where the state “did not base the nonrenewal of [the plaintiff’s] contract on
a charge, for example, that he had been guilty of dishonesty, or immorality” and “[h]ad it done
so, this would be a different case”). The Fourth Circuit considered such a claim in Sigmon, 564
F.2d 1093. In that case, Ms. Sigmon had taught for four years in North Carolina, but her
principal recommended that her contract not be renewed for the fifth year. Renewal for the
fifth year would have established her as a career teacher under North Carolina law. Following
the reasoning of Bishop and Roth, the court noted that to create a liberty interest, a plaintiff
must show that the defendant attached some stigma to the non-renewal beyond the bare nonrenewal of the contract. The Sigmon court noted that in that case, the school board “did not
charge Mrs. Sigmon with dishonesty or immorality, or the like, nor bar her from other public
employment in State school systems.” Sigmon, 564 F.2d at 1096. Therefore, Ms. Sigmon had
not stated the elements necessary to show stigmatization which deprives someone of a
Fourteenth Amendment liberty interest. In a later case, the Fourth Circuit stated that no liberty
interest is implicated “in the absence of any public charge by the employer that might seriously
damage the teacher’s standing and associations in his community.” Wooten v. Clifton Forge
Sch. Bd., 655 F.2d 552, 555 (4th Cir. 1981). In other words, a plaintiff must allege that the
defendant made statements in connection with her non-renewal “that imply . . . serious character

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defects” and not simply incompetence. Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d
292, 308-09 (4th Cir. 2006).
In the present case, Plaintiff Welch-Walker’s allegations do not state a claim for
deprivation of a liberty interest based on imposition of a stigma in connection with the nonrenewal. Plaintiff does not allege that Defendants made any public statement at the time that
her contract was not renewed. According to her Complaint, Plaintiff received copies of the
documents relied upon by Defendant Board, but there is no allegation that Defendants disclosed
these documents to the public or otherwise made a public statement regarding Plaintiff’s nonrenewal. Plaintiff alleges in her Complaint that Defendant Thigpen made some statements
concerning Plaintiff to parents prior to her non-renewal. However, these statements were not
made close in time to Plaintiff’s non-renewal and, at any rate, did not accuse Plaintiff of
dishonesty or immorality which would give rise to a liberty interest. See Robertson v. Rogers,
679 F.2d 1090, 1092 (4th Cir.1982) (superintendent telling prospective employers that plaintiff
was terminated for “incompetence and outside activities” does not amount to the type of
communication which gives rise to a protected liberty interest).
The only allegation which may be construed to touch upon dishonesty is Plaintiff’s
allegation that Defendant Thigpen “informed Defendant Board that Plaintiff was trying to hide
her daughter’s disability because Plaintiff had not disclosed the disability on a sheet in Plaintiff’s
daughter’s file.” (Compl. [Doc. #2] ¶ 67.) However, Plaintiff does not link this allegation to her
non-renewal. Moreover, there is no contention of public dissemination of this allegation.
Internal communications within the school system are not considered public statements. See

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Luy v. Baltimore Police Dep’t, 326 F. Supp. 2d 682, 691 (D. Md. 2004) (“Charges that are made
in internal communications with the employer are not thereby ‘made public.’”) Such lack of
public dissemination is also fatal to Plaintiff’s claims that Defendant Thigpen improperly placed
various documents in her personnel file without notice or without giving Plaintiff an opportunity
to respond. See Whiting v. Univ. of S. Miss., 451 F.3d 339, 347 (5th Cir. 2006) (mere presence
of defamatory information in confidential personnel file does not amount to a violation of one’s
liberty rights).
Plaintiff also charges that Defendant Board “presented evidence in support of the denial”
of her unemployment benefits. (Compl. [Doc. #2] ¶ 91.) She claims that the Board’s
accusations in challenging her unemployment benefits were “not creditable, and were only used
in the furtherance of discriminatory practices perpetrated against the Plaintiff by the Defendant.”
(Id. ¶ 92.) These allegations do not suggest that the accusations involved dishonesty or
immorality. Moreover, such disclosures by the Board to the state agency deciding Plaintiff’s
application for unemployment benefits are not public disclosures. See Luy, 326 F. Supp. 2d at
691 (“A state employer also should not be held liable for disclosing information to another state
agency at the former employee’s request at some time after the employee’s termination–in this
case in order for Luy to secure unemployment benefits.”) (citing cases).
Because Plaintiff has failed to allege sufficient facts showing that she possessed a liberty
or property interest in her continued employment, and because no public statements infringing
on a liberty interest in future employment have been alleged, she cannot state a claim for the

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violation of her due process rights, and her First Cause of Action should be dismissed.3 Given
this conclusion, the Court need not address Defendants’ other contentions in support of
dismissal of Plaintiff’s due process claim.4
C.

Malicious Interference with Contract

Plaintiff’s Second Cause of Action, and only remaining claim,5 is that Defendant Thigpen
maliciously interfered with her alleged contract with Defendant Board for continued
employment. (Compl. [Doc. #2] ¶¶ 110-17.) The elements of this tort under North Carolina
law are: (1) a valid contract existed between plaintiff and a third person; (2) defendant knew of
such contract; (3) defendant intentionally induced the third person not to perform his or her
contract with plaintiff; (4) defendant had no justification for his or her actions; and (5) plaintiff

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Plaintiff’s Complaint alleges only a procedural due process violation, but in her Response Brief, Plaintiff
refers to alleged substantive due process violations. Even if the Court considers those contentions, Plaintiff has
not stated a substantive due process claim because she has not alleged a Constitutionally-protected interest.
Moreover, “[t]he touchstone of due process is protection of the individual against arbitrary action of the
government,” County of Sacramento v. Lewis, 523 U.S. 833, 845 (1998), and only “the most egregious official
conduct” qualifies as constitutionally arbitrary, Huggins v. Prince George’s Cnty., Md., 683 F.3d 525, 535 (4th
Cir. 2012) (quoting Lewis, 523 U.S. at 846). Substantive due process does not provide a federal forum for review
of government personnel decisions, and the allegations in Plaintiff’s Complaint simply do not rise to the level
of a substantive due process violation.
4

The Court does note that even if Plaintiff could establish a protected liberty or property interest, she
has not stated a claim for violation of her procedural due process rights, given that Plaintiff has alleged that she
was provided with notice of the impending decision along with copies of all of the supporting documentation
at least 10 days prior to the board’s determination, and was also given an opportunity to provide a response prior
to the meeting of the board. Defendants also note that Plaintiff had an opportunity for a further hearing that
she failed to pursue. Specifically, Defendants note that Plaintiff was entitled to appeal the Board’s decision to
state court within 30 days but failed to do so.
5

Although Plaintiff makes statements regarding alleged racial discrimination, she has not alleged a racial
discrimination claim in her Complaint, and the Complaint specifically states that Plaintiff “does not currently
have sufficient information to determine whether or not [her] termination was the result of intentional racial
discrimination.” Therefore, because no race discrimination claim has been asserted, the Court need not consider
Defendant’s contention that any such claim is untimely because Plaintiff failed to file suit within 90 days of
receipt of her Right to Sue letter from the EEOC.

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suffered damages as a result. Wagoner v. Elkin City School’s Bd. of Educ., 440 S.E.2d 119, 124
(N.C. Ct. App. 1994). In Wagoner, the plaintiff was a probationary high school teacher who
claimed that her two principals had interfered with her contract with the local board of
education. In her Complaint, Ms. Wagoner alleged that the principals were agents, servants, and
employees of the board of education. Id. The court noted that principals of a school have “a
legitimate business interest in plaintiff’s performance under her contract with the Board because
they were responsible for overseeing, observing, and evaluating the faculty at [the high school],
and for assigning duties to the teachers.” Id. Because the principals had a proper motive for
their actions, the plaintiff had “failed to show that she [could] make out a prima facie case of
malicious interference of contract at trial.” Id. at 125.
Similarly, in Privette v. Univ. of North Carolina at Chapel Hill, 385 S.E.2d 185 (N.C. Ct.
App. 1989), the plaintiff was a research scientist who charged that two doctors, the director and
assistant director of the lab where plaintiff worked, interfered with his employment contract by
having him discharged. Plaintiff Privette claimed that the defendants began a pattern of
harassment against him because of his association with another doctor who supervised some of
the plaintiff’s work. Plaintiff Privette claimed that the defendants encouraged other research
technicians to make false accusations against him because of this association. Id. at 187. The
court found that as the director and assistant director of the laboratory, defendants “had a
legitimate professional interest in the plaintiff’s performance of his duties” and this interest
foreclosed plaintiff from establishing the “without justification” element of malicious
interference with contract. Id. at 190-91.

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In her Complaint, Plaintiff alleges that Defendant Thigpen was the principal of Colfax
Elementary School where Plaintiff worked, that she was “responsible for creating, adopting, and
implementing School District polices, practices and or customs,” and at all relevant times was
“acting in the scope of her employment.” (Compl. [Doc. #2] ¶¶ 8-9.) Plaintiff also alleges that
Defendant Thigpen was at all relevant times “acting as the agent, servant and/or employee of
Defendant Board.” (Id. ¶ 14.) Under the reasoning of Wagoner, these allegations establish that
Defendant Thigpen had a legitimate business interest in any contract that existed between
Plaintiff and Defendant Board, and this interest is fatal to Plaintiff’s claim.6
Plaintiff does allege, in conclusory fashion, that Defendant Thigpen interfered with her
contract based on Defendant Thigpen’s “own self-serving motives, objectives and desires.”
Plaintiff contends that these allegations are sufficient to defeat any qualified privilege of
interference that Defendant Thigpen may have possessed. (Response Br. [Doc. #23] at 15.)
However, Wagoner and Privette are directly on point and foreclose Plaintiff’s claim. Under
those decisions, and based on the nature of the allegations in the Complaint, Defendant Thigpen
had a legitimate business interest in Plaintiff’s alleged contract. Moreover, the factual allegations
do not support a claim that Defendant Thigpen was acting based on personal motivations.7

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The Court further notes that it does not appear that Plaintiff has sufficiently alleged the existence of
the first element of the tort–a contract with which Defendant Thigpen could have interfered– given that
Plaintiff’s probationary contract was apparently completed, and she fails to allege any facts suggesting a meeting
of the minds for the creation of a second contract for continued employment.
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Indeed, Plaintiff's allegations show that Defendant Thigpen received numerous, substantial complaints
from parents and students about Plaintiff’s teaching performance, and this is not a situation where the only
complaints of Plaintiff’s performance were from the alleged tortfeasor.

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Because Plaintiff has failed to allege sufficient facts to state a claim of malicious
interference with contract, her final claim for relief should be dismissed.
III.

CONCLUSION
IT IS THEREFORE RECOMMENDED that Defendants’ Motion to Dismiss [Doc.

#14] be granted, and that this action be dismissed.
This, the 10th day of December, 2014.

/s/ Joi Elizabeth Peake
United States Magistrate Judge

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