Pettaway v. Prince George County Public School System, Department of Transportaton

Filing 48

MEMORANDUM OPINION Granting Defendant's Partial Motion to Dismiss. See Opinion for details. Signed by Senior United States District Judge Henry E. Hudson on 4/4/2019. (sbea, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
KIMBERLY J. PETTAWAY,
Plaintiff,
V.

SCHOOL BOARD OF PRINCE
GEORGE COUNTY, VIRGINIA,
Defendant.

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) Civil Action No. 3:18cv382-HEH
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MEMORANDUM OPINION
(Granting Defendant's Partial Motion to Dismiss)
THIS MATTER comes before the Court on a Motion to Dismiss Counts III and IV
of the Second Amended Complaint (the "Motion" (ECF No. 36)) filed by the School Board
of Prince George County, Virginia ("Defendant" or "School Board"). Kimberly Pettaway
("Plaintiff') timely filed a Memorandum in Opposition to the Motion to Dismiss (ECF No.
46), and Defendant filed its Reply on April I, 2019 (ECF No. 47). The matter is now ripe
for the Court's review, and the Court will reach its disposition without a hearing pursuant
to Local Rule of Civil Procedure 7(J).

I.

BACKGROUND

Plaintiff is an African-American woman who suffers from a disability. (Second
Am. Compl. (ECF No. 35) ,I 6.) In the Second Amended Complaint, Plaintiff alleges that
she experienced unlawful discrimination and retaliation while working as a school bus
driver for Prince George County Public Schools. (Second Am. Compl. passim.) Plaintiff
alleges, for example, that non-African-American bus drivers were assigned new or newer

buses to drive, while Plaintiff was consistently assigned to drive older buses that
experienced various mechanical issues. (Id.) In addition, Plaintiff alleges that nonAfrican-American bus drivers were assigned bus routes that were more desirable than
Plaintiffs assigned bus routes. (Id. 1137, 41, 45.) After discussing her perceived
discrimination with her supervisor and other county officials, Plaintiff was fired on
February 22, 2017. (Id. 179.) Notably, the Second Amended Complaint does not state
that alleged discrimination was the result of an official municipal policy or custom.
Defendant argues that Count III of the Second Amended Complaint, which alleges
unlawful retaliation in violation of 29 U.S.C. § 794, is time barred by the one-year statute
of limitation contained in Va. Code Ann.§ 51.5-46(B).1 (Def.'s Br. Supp. Mot. Dismiss
(ECF No. 37) 4-5) In her Memorandum in Opposition to the Motion to Dismiss, Plaintiff
concedes that Count III of the Second Amended Complaint is time barred. (Pl.'s Mem.
Opp. Mot. Dismiss 2.) Accordingly, the Court need not address Count III and it will be
dismissed with prejudice. Defendant also correctly argues that Count IV fails to plead a
claim under 42 U.S.C. § 1981. (Def.'s Br. Supp. Mot. Dismiss 5-7.) However, Plaintiff
argues that Count IV should be permitted to proceed despite Defendant's "hypertechnical"
argument, and, in the alternative, Plaintiff requests leave to amend the Second Amended
Complaint. (Pl.'s Mem. Opp. Mot. Dismiss 2-3.)

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"Because neither the Federal Rehabilitation Act nor the ADA specifies a statute of limitations,
district courts must adopt the most analogous state statute of limitations for those Acts." Childress
v. Clement, 5 F. Supp. 2d 384,388 (E.D. Va. 1998) (citing 42 U.S.C. § 1988 (1994); Wilson v.
Garcia, 471 U.S. 261,266,268 (1985)). "The Fourth Circuit has held that the Virginia Rights of
Persons with Disabilities Act, Va. Code Ann.§ 51.5-40 et seq., provides the most analogous
statute of limitations for claims brought under the Federal Rehabilitation Act." Id (citing Wolsky
v. Med. Coll. ofHampton Roads, 1 F.3d 222, 223 (4th Cir. 1993)).
2

Putting aside the substance of the Second Amended Complaint, Plaintiff filed her
original Complaint (ECF No. 1) on June 4, 2018. However, ten months later, the case has
not moved beyond the pleading stage. This is due in part to Plaintiffs multiple requests for
extensions of time to respond to Defendant's first and second Motions to Dismiss. (See
ECF Nos. 8 and 24 (requesting extensions of time).) In addition, the Court has liberally
granted Plaintiff leave to make two separate amendments in order to remedy deficiencies in
her pleadings. 2 (See ECF Nos. 13 and 34.) Based in part on these multiple extensions and
amendments, when the Court granted Plaintiff leave to file a Second Amended Complaint,
the Court explicitly informed Plaintiff that "no additional leave to amend will be granted,
nor will the Court grant Plaintiff additional extensions of time absent extreme
circumstances." (ECF No. 34.)

II.

STANDARD OF REVIEW

A motion to dismiss filed under Federal Rule of Civil Procedure 12(b)(6) tests a
complaint's legal sufficiency. Republican Party ofN.C. v. Martin, 980 F.2d 943,951
(4th Cir. 1992). While "detailed factual allegations" are not required, a complaint must
contain "more than labels and conclusions" or a "formulaic recitation of the elements of a
cause of action." Bell Atl. Corp. v. Twombly, 550 U.S. 544,555 (2007) (citations omitted).
Thus, to survive a 12(b)(6) challenge, a complainfs "[f]actual allegations must be enough
to raise a right to relief above the speculative level," id., to a level that is "plausible on its
face," id. at 570. In reviewing a 12(b)(6) motion, the Court assumes well-pleaded
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Each of Plaintiffs amendments mooted Defendant's previous Motions to Dismiss (ECF Nos. 6
and 22), which were before the Court at that time. (See ECF Nos. 17 and 34 (dismissing
Defendant's Motions to Dismiss as moot).) Defendant's current Motion is the third motion that it
has filed pursuant to Federal Rule of Civil Procedure 12(b).
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allegations to be true and views a complaint's facts in the light most favorable to the
plaintiff. T.G. Slater & Son v. Donald P. & Patricia Brennan, LLC, 385 F.3d 836, 841 (4th
Cir. 2004) (citing Mylan Labs, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)).
However, legal conclusions are not entitled to the same deference. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).
On 12(b)(6) review, the Court "generally cannot reach the merits of an affirmative
defense, such as the defense that the plaintiffs claim is time-barred," however, the Court
may consider an affirmative defense when there are sufficient facts alleged in the
complaint to make a ruling. Goodman v. PraxAir, Inc., 494 F.3d 458,464 (4th Cir. 2007).
"This principle only applies, however, if all facts necessary to the affirmative defense
'clearly appear[] on the face of the complaint.'" Id. (quoting Richmond, Fredericksburg &
Potomac R.R. v. Forst, 4 F .3d 244, 250 (4th Cir. 1993); also citing Desser v. Woods, 296

A.2d 586, 591 (Md. 1972)).

III.

DISCUSSION

Title 42, section 1981 of the United States Code provides that citizens shall have
"the same right in every State and Territory to make and enforce contracts, to sue, be
parties, give evidence, and to the full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white citizens ...." 42 U.S.C. § 1981. A

§ 1981 claim "must be founded on purposeful, racially discriminatory actions that affect at
least one of the contractual aspects listed in§ 1981(b)." Spriggs v. Diamond Auto Glass,
165 F.3d 1015, 1018 (4th Cir. 1999) (citing Gen. Bldg. Contractors Ass'n v. Pennsylvania,
458 U.S. 375,391 (1982)); see also 42 U.S.C. 198l(b) (listing actions considered to be

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included in the term "make and enforce contracts"). Furthermore, and important to the
outcome of the current matter, "when suit is brought against a state actor, [42 U.S.C.] §
1983 is the 'exclusive federal remedy for violation of the rights guaranteed in § 1981."'

Dennis v. Cty. ofFairfax, 55 F .3d 151, 156 (4th Cir. 1995) (quoting Jett v. Dallas Indep.
Sch. Dist., 491 U.S. 701, 733 (1989)).
In her Second Amended Complaint, Plaintiff has not pleaded a§ 1983 cause of
action, and therefore, Plaintiff cannot vindicate the statutory right that § 1981 confers on
her. See id. Furthermore, even if the Court granted Plaintiff leave to amend her
pleading-for a third time-Plaintiff has not pleaded that the alleged discrimination she
suffered was the result of an official municipal policy. See Carter v. Morris, 164 F.3d 215,
218 (4th Cir. 1999) ("[I]t is by now well settled that a municipality is only liable under
section 1983 if it causes such a deprivation through an official policy or custom."
(emphasis added (citing Monell v. Dep 't ofSoc. Servs., 436 U.S. 658, 690-91 (1978))).
Municipal policy may be found in written ordinances and regulations, in
certain affirmative decisions of individual policymaking officials, or in
certain omissions on the part of policymaking officials that manifest
deliberate indifference to the rights of citizens. Outside of such formal
decision-making channels, a municipal custom may arise if a practice is so
persistent and widespread and so permanent and well settled as to constitute
a custom or usage with the force of law.

Id. (internal citations and quotation marks omitted). Also, it bears mentioning that a
municipality cannot be held liable under § 1983 based upon a theory of respondeat
superior. Id. Therefore, simply stated, Plaintiffs allegations fall short of the factual
predicate that is necessary to hold a municipality liable in a § 1983 suit. Accordingly, even

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if another amendment was granted, Plaintifr s Count IV is beyond resuscitation and it must
be dismissed with prejudice.

IV.

CONCLUSION

For the foregoing reasons, the Court will grant Defendant's Motion and Counts III
and IV of the Second Amended Complaint will be dismissed with prejudice. An Order to
that effect will accompany this Memorandum Opinion

Isl
Henry E. Hudson
Senior United States District Judge

'4 2o&f

Date: Aer:I
Richmond, VA

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