Colley v. Dickenson County School Board et al

Filing 30

OPINION AND ORDER denying 13 Motion to Dismiss for Failure to State a Claim; denying 18 Motion to Dismiss for Failure to State a Claim. Signed by Judge James P. Jones on 10/5/2017. (lml)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BIG STONE GAP DIVISION
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DEBRA COLLEY,
Plaintiff,
v.
DICKENSON COUNTY SCHOOL
BOARD, ET AL.,
Defendants.

Case No. 2:17CV00003
OPINION AND ORDER
By: James P. Jones
United States District Judge

John P. Fishwick, Jr. and Monica L. Mroz, Fishwick & Associates PLC,
Roanoke, Virginia, for Plaintiff; Jim H. Guynn, Jr., Guynn & Waddell, PC, Salem,
Virginia, for Defendant Dickenson County School Board,; Melissa W. Robinson
and Johneal M. White, Glenn Robinson & Cathey, PLC, Roanoke, Virginia, for
Defendants Susan Mullins and Rocky Barton.
In this employment discrimination case by a former Virginia public school
employee, the plaintiff asserts claims against the school board, the school
superintendant, and the individual members of the board, based upon the Equal
Pay Act, Title IX, and 42 U.S.C. § 1983, as well as breach of contract. The school
board and certain of its members have moved to dismiss pursuant to Rule 12(b)(6).
For the reasons that follow, I will deny the motions.
I.
The Complaint alleges the following facts, which I must accept as true for
the purpose of deciding the pending motions.

Plaintiff Debra Colley was employed by Dickenson County Public Schools
(“DCPS”) as the Supervisor of Instruction Elementary/Secondary from 2007 until
July 2015. She was one of five employees classified as Supervisor/Central Office.
Colley’s predecessor, a male, was the highest paid supervisor for DCPS. When
Colley took the position, she became the lowest paid supervisor.
At the time she was hired, Colley was led to believe that all five supervisor
positions received similar salaries. However, two of the male supervisors received
large salary increases around that time. She was not aware of this discrepancy.
Colley also expressed her concern over the disparity in salary between supervisors
and school principals, and then-Superintendent Compton advised Colley that she
would address the pay scales.1

Another male supervisor complained to

Superintendant Compton about his salary and received a large increase. Colley
also complained to the new Superintendent Robinson, who represented to Colley
that she would try to remedy the disparity. However, Colley received no salary
increase.
Colley planned to retire in July 2015. Prior to her retirement, Colley decided
to address the salary issue with the Dickenson County School Board (“School
Board”). To prepare for the meeting, Colley obtained a list of DCPS positions and
salaries.

Colley learned from this list that since 2008, three of the male

1

Superintendant Compton was the former superintendant.
Robinson, who is a defendant in this suit, is the current superintendant.
2

Superintendant

supervisors, who performed work of equal or similar difficulty, had higher salaries
than Colley. In 2015, the male salaries were each approximately eleven thousand
dollars greater than Colley’s. Colley presented this salary data to the School Board
in April 2015.
In May 2015, members of the School Board, as well as Superintendent
Robinson, told Colley that the School Board would correct the pay discrepancy.
Following the May 2015 School Board meeting, the School Board attorney advised
Colley that the School Board had directed him to correct the salary issue.
According to the numbers calculated by the School Board clerk, the total unpaid
compensation owed to Colley for her last eight years of employment was
$90,477.73. This disparity affects her retirement amount, which is based on her
three highest salary years.

The clerk also contacted the Virginia Retirement

System to begin facilitating the correction to Colley’s creditable compensation.
Prior to the July 2015 School Board meeting, its attorney indicated a range
of compensation the School Board would approve, and Colley stated that she
would accept anything within that range.

However, after the July meeting,

Superintendant Robinson and the attorney advised Colley that the School Board
would not offer her any compensation. Colley’s successor, a male, was employed
at a salary that was two thousand dollars greater than Colley’s at the time of her
retirement.

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Colley alleges that the Superintendant, the School Board, and the individual
members of the School Board, were responsible for setting and approving all
supervisor salaries.
II.
Colley filed her Complaint on March 7, 2017, asserting four claims. Count
One is an Equal Pay Act claim brought against the School Board regarding the
disparity between Colley’s salary and the male supervisors. Count Two is a Title
IX claim against the School Board regarding the same salary disparity. Count
Three is a Fourteenth Amendment equal protection claim brought pursuant to 42
U.S.C. § 1983 against the School Board, the Superintendant, and members of the
School Board in their individual capacities. Count Four is a breach of contract
claim under state law against the School Board.
The School Board has moved to dismiss Count Four of the Complaint, and
individual defendants Mullins and Barton have moved to dismiss Count Three
asserted against them individually for failure to state claims upon which relief can
be granted. Fed. R. Civ. P. 12(b)(6). The motions to dismiss have been fully
briefed and are now ripe for decision.2

2

I will dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument would not
significantly aid the decisional process.
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III.
“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a
complaint. . . .” Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999).
Rule 12(b)(6) does “not require heightened fact pleading of specifics, but only
enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007). A motion to dismiss “does not resolve
contests surrounding the facts, the merits of a claim, or the applicability of
defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992).
In ruling on a motion to dismiss, the court must regard as true all of the
factual allegations contained in the complaint, Erickson v. Pardus, 551 U.S. 89, 94
(2007), and must view those facts in the light most favorable to the plaintiff.
Christopher v. Harbury, 536 U.S. 403, 406 (2002). “Where, as here, the motion to
dismiss involves a civil rights complaint, [I] must be especially solicitous of the
wrongs alleged and must not dismiss the complaint unless it appears to a certainty
that the plaintiff would not be entitled to relief under any legal theory which might
plausibly be suggested by the facts alleged.” Rios v. Veale, 648 F. App’x 369, 370
(4th Cir. 2016) (unpublished).3

3

I have omitted internal quotation marks, alterations, and citations here and
throughout this opinion, unless otherwise noted.
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IV.
A.

DEFENDANTS MULLINS’ AND
BARTON’S MOTION TO DISMISS.

In Count Three of her Complaint, Colley asserts that all defendants, acting
under color of state law, violated the equal protection clause of the Fourteenth
Amendment and 42 U.S.C. § 1983 by discriminating against Colley when they
paid her less than her male counterparts for substantially similar work. She further
asserts that the defendants acted willfully, knowingly, and with the specific intent
to deprive her of constitutional rights.
In order to succeed on a § 1983 claim, a plaintiff must prove the following
three elements: “(1) the deprivation of a right secured by the Constitution or a
federal statute; (2) by a person; (3) acting under color of state law.” Jenkins v.
Medford, 119 F.3d 1156, 1159-60 (4th Cir. 1997). Section 1983 also encompasses
a proximate cause requirement, imposing liability only upon a defendant who
“subjects, or causes to be subjected, any citizen . . . to the deprivation of any
rights” guaranteed by federal law. 42 U.S.C. § 1983.
To state an equal protection claim under § 1983, a plaintiff must plead
sufficient facts to “demonstrate that [s]he has been treated differently from others
with whom [s]he is similarly situated and that the unequal treatment was the result
of intentional or purposeful discrimination.” Williams v. Hansen, 326 F.3d 569,
576 (4th Cir. 2003) (quoting Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir.
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2001)). Once this showing is made, the court proceeds to determine whether the
disparity in treatment can be justified under the requisite level of scrutiny.
In their Motion to Dismiss, Mullins and Barton contend that Count Three of
the Complaint should be dismissed as against them because Colley failed to allege
any specific action taken by them individually.

They argue that in order to

establish individual liability under § 1983, a plaintiff must show that “the official
charged acted personally in the deprivation of the plaintiff’s rights.” Wright v.
Collins, 766 F.2d 841, 850 (4th Cir. 1985). They further argue that each defendant
must have had personal knowledge of and involvement in the alleged violations.
They cite to Blackman v. Town of Front Royal, CIV. ACTION NO. 5:99CV00017,
2000 U.S. Dist. LEXIS 17512, at *10-11 (W.D. Va. Oct. 19, 2000), in support of
this argument.
In Blackman, the plaintiff sued his former employer, the Town of Front
Royal, and his supervisor, individually, for alleged race-based employment
discrimination. His supervisor moved for summary judgment on the basis that he
could not be held liable in his individual capacity under a § 1981 or 1983 claim.
The court granted summary judgment in favor of the supervisor because
“Blackman failed to plead in his complaint any direct involvement of [the
supervisor] in the decisions regarding Blackman’s wages” and “points to no

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evidence that [the supervisor] actually had direct involvement in determining
Blackman’s wages.” Id.
There are key distinctions between the case at issue and Blackman. First, the
court in Blackman was ruling at the summary judgment stage, not on a motion to
dismiss. Second, the defendant in Blackman was a supervisor, not a school board
member. The only evidence regarding whether this supervisor had any control
over Blackman’s salary was a town employee’s statement that the supervisor gave
the impression he controlled wages. On the contrary, here it is clearly alleged that
the School Board determines salaries of DCPS employees and individual board
members vote on such issues.
In her Complaint, Colley claims that the individually named defendants,
acting under color of state law as School Board members, “were responsible for
setting and approving all Central Office Supervisor salaries.” Compl. 7, ECF No.
1. Taken as true, if the individual board members approved the higher salaries of
Colley’s male counterparts and such salaries were notably greater than Colley’s, it
is at least plausible that the School Board members’ decision to approve these
higher salaries could be seen as intentional gender discrimination. Therefore, the
allegations in Count Three are sufficient to “raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555. Accordingly, Mullins’ and Barton’s
Motion to Dismiss will be denied.

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B.

DEFENDANT DICKENSON COUNTY
SCHOOL BOARD’S MOTION TO DISMISS.

In Count Four of her Complaint, Colley contends that the School Board,
through its agents and representatives, entered into a contract in July 2015, in
which they agreed to compensate Colley for the salary discrepancy between her
and the male supervisors. She claims that the School Board made an offer to her
when its attorney presented the amount Colley had been underpaid and indicated
the range of compensation the School Board would approve. Colley asserts that
she accepted the range offered by the School Board attorney, and that by refusing
to honor the offer and compensate Colley for the underpayment, the School Board
breached its contract. As a result of this breach, Colley claims that she suffered
damages in the amount of $90,477.43 (the amount allegedly owed to her for eight
years of underpayment), as well as a loss of retirement income.
The School Board argues that the facts alleged in the Complaint do not
plausibly support the conclusion that an offer was made or that acceptance
occurred. The School Board also contends that the Complaint fails to allege facts
to support any consideration. Finally, the School Board argues that under Virginia
law, any contract allegedly entered into would have been an illegal contract
because the School Board never voted in open session to enter into the alleged
contract.

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In order to succeed on a breach of contract claim under Virginia law, a
plaintiff must prove (1) a legally enforceable obligation of a defendant to a
plaintiff, (2) a violation or breach of that obligation, and (3) injury or damage to
the plaintiff caused by the breach. See Ulloa v. QSP, Inc., 624 S.E. 2d 43, 48
(Va. 2006). To prove a legally enforceable obligation, the plaintiff must prove (1)
offer, (2) acceptance, and (3) consideration. See Montagna v. Holiday Inns, Inc.,
269 S.E. 2d 838, 844 (Va. 1980) (“[T]here must be a complete agreement which
requires acceptance of an offer, as well as valuable consideration.”)
1. Offer.
An offer is a “manifestation of willingness to enter into a bargain, so made
as to justify another person in understanding that his assent to that bargain is
invited and will conclude it.” Restatement (Second) of Contracts, § 24 (Am. Law
Inst. 1981). An offer also “identifies the bargained for exchange.” Chang v. First
Colonial Sav. Bank, 410 S.E. 2d 928, 930 (Va. 1991). The objective theory of
contract controls in Virginia. Under this theory, “an offer has been made if a
reasonable person in the offeree’s position, in view of the offeror’s acts and words
and the surrounding circumstances would believe that the offeror has invited the
offeree’s acceptance.”

Commonwealth v. Stewart, No. 04-1409, 2004 WL

3455442, *14 (Va. Cir. Ct. Oct. 22, 2004).

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Colley alleges in her Complaint that the School Board’s actions of agreeing
to correct the pay disparity, calculating the amount of underpayment owed to
Colley and presenting this number to her constituted a valid offer. Colley further
alleges that the School Board continued to act on this offer by contacting the
Virginia Retirement System. She argues that it was reasonable for her to believe,
based on these circumstances, that an offer had been made.
The School Board contends that these statements and actions by its clerk and
attorney do not constitute an offer because such statements lack the specificity
necessary to constitute an offer.

However, based on her allegations in the

Complaint, I find Colley has set forth sufficient facts from which the trier of fact
could conclude that an offer was made.
2. Acceptance.
In her Complaint, Colley states that “prior to the July School Board meeting,
[she] indicated to the School Board Attorney that she would accept anything within
the range identified” by the attorney. Compl. 6, ECF No. 1. Colley argues that
this constituted valid acceptance. The School Board focuses on the word “would,”
which it argues indicates that Colley had not yet accepted any alleged offer.
However, I find this argument unsuccessful. “The modern test for determining
whether there was acceptance (reflecting the objective theory of contract) is
whether it would be clear to a reasonable person in the position of the offeror that

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there was an acceptance. Stewart, 2004 WL 3455442, at *14.

Viewing the

allegation in the light most favorable to Colley, I think it is sufficient to allow the
trier of fact to conclude that a reasonable person in the position of the attorney
would have understood that Colley was accepting an offer to pay her an amount
within the identified range.
3. Consideration.
The School Board claims that Colley’s Complaint fails to allege any
consideration. In her opposition to the School Board’s Motion to Dismiss, Colley
argues that the consideration was her forbearance of the right to pursue legal action
against the School Board. Indeed, it is well settled that forbearance, or the promise
of forbearance, to prosecute a well-founded claim is sufficient consideration for a
contract. See Hoof v. Paine, 2 S.E. 2d 313 (Va. 1939). Although the School Board
is correct in asserting that Colley failed to specifically allege such consideration in
her Complaint, I find that the facts tend to demonstrate a fair inference that she was
giving up a claim in consideration for the agreement to compensate her for the
salary disparity.
4. Virginia Statutory Requirements for Public Bodies.
Finally, the School Board argues that even if a contract was formed, it would
not be enforceable because the School Board did not vote to approve any such
contract in open session, which is required under Virginia law.

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Code of Virginia § 2.2-3710 prohibits any transaction of public business to
be authorized unless pursuant to a vote taken in open session. Section 2.2-3711
allows public bodies to hold closed meetings to, among other things, discuss or
consider salaries. Va. Code Ann. § 2.2-3711(A)(1). However, any “contract . . .
adopted, passed or agreed to in a closed meeting shall [not] become effective
unless the public body, following the meeting, reconvenes in open meeting and
takes a vote of the membership on such . . . contract, . . . that shall have its
substance reasonably identified in the open meeting.” Va. Code Ann. § 2.23711(B).
The School Board argues that Virginia law precludes the School Board from
entering into a contract concerning Colley’s salary except by vote at a public
meeting, and that no record of a vote specifically approving the alleged contract
with Colley exists.
Relying on the minutes from the May 27, 2015 School Board meeting,
Colley asserts that the School Board did, in fact, discuss the salary issue in closed
session and voted in open session to “accept the retirement requests as presented.”
Pl.’s Opp’n to Defs.’ Mot. to Dismiss, Ex. 1, ECF No. 17. 4

4

While normally the court may not consider factual matters outside the
Complaint, where a later-submitted document is implicit in the Complaint’s allegations
and whose authenticity is uncontested, the court may consider it. See Gasner v. Cty. of
Dinwiddie, 162 F.R.D. 280, 282 (E.D. Va. 1995).
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In response, the School Board argues that acceptance of Colley’s “retirement
request” and acceptance of the purported contract is not the same thing.

It

contends that “[p]ublic acceptance of retirement is virtually guaranteed and is no
more than a gesture of gratitude.” Reply in Supp. of Mot. to Dismiss, 2, ECF No.
23.

This argument, however, suggests that the vote was just as likely for

something other than mere acceptance of her retirement status.

If public

acceptance of retirement is “guaranteed,” then it is unclear why the School Board
would need to vote on such an action.
Accordingly, I find that this factual issue precludes granting the School
Board’s Motion to Dismiss.
V.
For the foregoing reasons, it is ORDERED that Defendant Dickenson
County School Board’s Motion to Dismiss (ECF No. 13) is DENIED, and
individual Defendants Mullins’ and Barton’s Motion to Dismiss (ECF No. 18) is
DENIED.

ENTER: October 5, 2017
/s/ James P. Jones
United States District Judge

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