Bloom v. The Board of Education of Monogalia County et al

Filing 78

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION Dkt. No. 75 . The court OVERRULES Blooms objections to the Report & Recommendation dkt. no. 76 ADOPTS the Report and Recommendation 75 and DENIES Blooms motion for preliminary inju nction. Dkt.No. 12 . It is ORDERED If Bloom should desire to appeal the decision of this Court, written notice of appeal must be received by the Clerk of this Court within (30) days from the date of the entry on the Judgment Order, pursuant to Rule 4 of the Federal Rules of AppellateProcedure. Signed by District Judge Irene M. Keeley on 11/8/2013. (Copy counsel of record via CM/ECF)(jmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
THOMAS C. BLOOM,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:13CV128
(Judge Keeley)

THE BOARD OF EDUCATION OF
MONONGALIA COUNTY, BARBARA L.
PARSONS, MICHAEL L. KELLY, RON
LYTLE, NANCY WALKER, CLARENCE
HARVEY, JR., and FRANK M. DEVONO,
Defendants.
MEMORANDUM OPINION AND ORDER
ADOPTING REPORT AND RECOMMENDATION [Dkt. No. 75]
Pending before the Court is the Magistrate Judge’s Report and
Recommendation, (dkt. no. 75), concerning the amended motion for
preliminary injunction, (dkt. no. 12), filed by the plaintiff,
Thomas C. Bloom (“Bloom”).

For the reasons that follow, the Court

ADOPTS the Magistrate Judge’s Report and Recommendation.
I.
On April 11, 2013, Bloom filed suit in the Circuit Court of
Monongalia County seeking a preliminary and permanent injunction
against

the

Amendment
guaranteed

defendants

rights
by

of

for

speech

Articles

alleged
and

III

violations

association,

and

IV

of

of

his

analogous

the

West

First
rights

Virginia

Constitution, and his right to equal protection under the laws
guaranteed

by

the

Constitution and

Fourteenth

Amendment

to

the

United

States

Article IV of the West Virginia Constitution.

BLOOM V. THE BD OF EDUC. OF MON. CTY., ET AL.

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MEMORANDUM OPINION AND ORDER
ADOPTING REPORT AND RECOMMENDATION
The defendants removed the action to this Court in accordance
with 28 U.S.C. §§ 1331, 1441, and 1446 on April 25, 2013. On
April 29, 2013, pursuant to Federal Rule of Civil Procedure 65,
Bloom filed a motion for preliminary injunction, which he later
amended on May 15, 2013.

Bloom seeks an injunction enjoining the

defendants from interfering with his ability to attend County
Commission meetings and related activities of the Commission during
school hours.

(Dkt. No. 4 at 1).

The Court referred Bloom’s motion to United States Magistrate
Judge

John

S.

Kaull

for

initial

screening

and

a

Report

and

Recommendation (“R&R”) in accordance with LR PL P 2. The magistrate
judge held a hearing on the motion on September 12, 2013, and later
issued a R&R on October 2, 2013. In the R&R, the magistrate judge
recommended that Bloom’s request for preliminary injunctive relief
be denied, inasmuch as Bloom had failed to clearly establish his
entitlement to the relief he is seeking. (Dkt. No. 75 at 28).
Bloom filed objections to the R&R on October 2, 2013, (dkt.
no. 76), in which he contends that the magistrate judge improperly
denied his motion because he misinterpreted the defendants’ flextime and leave provisions, failed to consider the inherent nature
of a guidance counselor’s job, misconstrued W.Va. Code § 18-5-

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18b(f), and misunderstood the parties’ First Amendment claims.
After conducting a de novo review of the portions of the R&R to
which Bloom objects, the Court concludes that Bloom’s objections
are without merit.
II.
Bloom has been employed by the defendant, Monongalia County
Board of Education (“the Board”), since August 22, 1977. From 1977
until 2013, he served as a guidance counselor at University High
School (“UHS”).

In 2012, he was reassigned to Morgantown High

School (“MHS”), where he is presently employed.
Prior to the November 6, 2012 general election in Monongalia
County, Bloom conveyed his plans to run for an open seat on the
Monongalia County Commission (“County Commission”) to his employer.
He was elected to serve as Monongalia County Commissioner and
assumed that office on January 2, 2013. Bloom alleges that, since
his election, the Board has been unwilling to allow him to take
unpaid leaves of absence or “flex-time” in order to attend weekly
County Commission meetings, which occur during the school day on
Wednesdays.
In an effort to accommodate Bloom, the County Commission
pushed

back

its

meetings

from

3

10:00

a.m.

to

3:00

p.m.

on

BLOOM V. THE BD OF EDUC. OF MON. CTY., ET AL.

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MEMORANDUM OPINION AND ORDER
ADOPTING REPORT AND RECOMMENDATION
Wednesdays. Due to the fact that these meetings sometimes lasted
until after 5:00 p.m. and County Commission staff were unable to
receive

overtime,

the

County

Commission

decided

to

move

its

meetings to 1:00 p.m. on Wednesdays. The Board, however, continues
to refuse to allow Bloom to take unpaid leave or flex-time in order
to attend these weekly County Commission meetings. It bases its
decision on the fact that there are “no Monongalia Board of
Education policies that permit full-time employees to unilaterally
elect to take time off without pay for the purpose of attending to
outside activities.” Plaintiff’s Exhibit 11. Bloom therefore is not
entitled to leave work during the school day to attend to his
outside duties. He argues that, at bottom, the Board’s denial of
his request constitutes a violation of his constitutional rights.
III.
In order to obtain a preliminary injunction, Bloom must
establish the following:
(1) that he is likely to succeed on the merits,(2) that
he is likely to suffer irreparable harm in the absence of
preliminary relief, (3) that the balance of equities tips
in his favor, and (4) that an injunction is in the public
interest.

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ADOPTING REPORT AND RECOMMENDATION
Real Truth About Obama, Inc. v. Fed. Election Comm’n, 575 F.3d 342,
346 (4th Cir. 2009), vacated on other grounds, 130 S.Ct. 2371.
Bloom bears the burden of satisfying each of the four elements with
a “clear showing” that he is entitled to the extraordinary relief
he seeks.
adequately

Id. at 346.
established

Contrary to Bloom’s arguments, he has not
the

elements

necessary

to

obtain

a

preliminary injunction.
IV.
A.
As to Magistrate Judge Kaull’s findings on Bloom’s First
Amendment

claims,

Bloom

argues

that

the

magistrate

judge

misunderstood and improperly weighed each party’s First Amendment
arguments. These objections are without merit.
Contrary

to

Bloom’s

objection,

Education, 391 U.S. 563 (1968),

Pickering

v.

Board

of

is directly applicable to this

case. Pickering applies to First Amendment cases involving public
employees, and no other case is squarely on point.
Pickering provides that, in determining whether a public
employee has a cause of action for an alleged violation of his
First Amendment rights, a Court must balance “the interests of the
[public employee], as a citizen, in commenting upon matters of

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public

concern

and

the

interest

of

the

[government],

as

an

employer, in promoting the efficiency of the public services it
performs through its employees.”

Pickering, 391 U.S. 563.

This

test requires the Court to determine whether, after accepting all
of Bloom’s well-pleaded allegations in his Complaint as true, and
drawing all reasonable factual inferences from those facts in his
favor, Bloom’s alleged First Amendment violations are a consequence
of his speech as a citizen concerning a matter of public concern,
or as an employee about a matter related to his employment contract
or of other personal interest.

If the Court determines that

Bloom’s claims center on a matter of private rather than public
concern, then the analysis stops there and the Court must reject
Bloom’s First Amendment claims.

If, however, the Court determines

that Bloom’s claims center on a matter of public concern, then it
must

perform

a

balancing

test

and

determine

whether

Bloom’s

interests outweigh those of the Board. Id.
Bloom’s argument that his First Amendment claims involve a
matter of public concern is unpersuasive. “Speech involves a matter
of public concern if it affects the social, political, or general
well-being of a community.” Edwards, 178 F.3d at 246. “Personal
grievances,

complaints

about

conditions

6

of

employment,

or

BLOOM V. THE BD OF EDUC. OF MON. CTY., ET AL.

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MEMORANDUM OPINION AND ORDER
ADOPTING REPORT AND RECOMMENDATION
expressions

about

other

matters

constitute

speech

about

matters

of
of

personal
public

interest

not

that

concern

do

are

protected by the First Amendment.” Id.
The First Amendment claims in this case involve a private
dispute between employer and employee. The gist of the claims deal
with Bloom’s employment contract with the Board, not his protected
rights to free speech and association.

Bloom presents no evidence

that the Board retaliated against him due to the speech he would be
engaging in through his work for the County Commission.
Bloom argues that the Board’s refusal to allow him to attend
County Commission meetings during the school day impinges on his
rights

to

free

speech

and

association.

However,

situation that Bloom, not the Board, has created.

this

is

a

His decision to

hold two jobs with conflicting hours has put him in the bind he
confronts today. The Board’s denial of Bloom’s request was based
solely on its desire to have a guidance counselor on duty at all
times

during

the

school

day,

not

to

infringe

on

Bloom’s

constitutional freedoms.
This case is distinguishable from those where courts have
found that a public employee’s First Amendment rights were violated
by their employer.

In Edwards vs. City of Goldsboro, 178 F.3d 231

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(4th Cir. 1999), for instance, the Court found that the plaintiff,
a sergeant police officer, had a viable First Amendment freedom of
speech claim when his employer’s denied allowing him to hold a
second job teaching a concealed weapons safety course.

In finding

for the plaintiff, the Court explained that Edward’s employers
specifically denied his request to hold a second job due to the
message

he

would

be

sending

concealed weapons course.

as

Id.

a

police

officer

teaching

a

Here, by contrast, Bloom has not

alleged that the Board has been unsupportive of any message Bloom
might be sending through his position with the County Commission.
Rather, the Board is concerned with Bloom’s ability to adequately
fulfill his employment contract.
Because Bloom’s First Amendment claims do not involve a matter
of public concern, the Court need not perform the Pickering
balancing

test

to

determine

whether

Bloom’s

First

Amendment

interests outweigh the Board’s interest in having him on duty at
Pickering, 391 U.S. at 563.

all times during the school day.

The

Court notes, however, that Bloom’s claims would also fail under
this balancing test.
Contrary to Bloom’s objection, his interest in attending
County Commission meetings does not outweigh those interests of the

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Board.

As evidenced by the recent tragedies that have occurred at

Monongalia County high schools, the Board has a compelling interest
in making sure that its schools have a guidance counselor present
at all times during the school day.

Bloom’s County Commission

position would require him to spend at least two hours a week away
from school for meetings, in addition to any additional work he may
have to perform for the job.

Neither Bloom nor the school board

can predict when a crisis will occur that requires the immediate
attention of a guidance counselor (Dkt. No. 17 at 10).

Thus,

Bloom’s First Amendment claims also fail to satisfy the Pickering
balancing test.
In sum, given that Bloom has failed to clearly establish that
he is likely to succeed on the merits of his First Amendment
claims, the Court adopts Magistrate Judge Kaull’s recommendation
and declines to grant Bloom a preliminary injunction on the alleged
violation of his rights under the First Amendment.
B.
Bloom does not object to Magistrate Judge Kaull’s findings on
his Fourteenth Amendment claim.

For the reasons that follow, the

Court

with

finds

no

clear

error

9

Magistrate

Judge

Kaull’s

BLOOM V. THE BD OF EDUC. OF MON. CTY., ET AL.

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MEMORANDUM OPINION AND ORDER
ADOPTING REPORT AND RECOMMENDATION
recommendation declining to grant Bloom a preliminary injunction
based on his Fourteenth Amendment claim.
In his complaint, Bloom alleges that the Board’s refusal to
allow him to take flex-time or unpaid leave to attend County
Commission meetings equates to a deprivation of his rights to due
process and equal protection of the law secured by the Fourteenth
Amendment. (Dkt. No. 1 at 76).

However, Bloom has failed to

establish by a clear showing that he is likely to succeed on his
Fourteenth Amendment claim.
Significantly, Bloom does not allege that his Fourteenth
Amendment rights are being violated because he is a member of a
protected class.

Rather, he bases his equal protection claim on a

“class of one” theory, arguing that the Board is singling him out
and treating him differently from other employees.

“Class of one”

cases involve situations where a plaintiff claims he has been
treated differently from others similarly situated, and no rational
basis

exists

for

the

disparate

treatment.

See

Village

of

Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
Bloom’s claims are subject to rational basis scrutiny.
Engquist v. Oregon Dep’t of Agr., 553 U.S. 591, 602 (2008).

Thus,

in order to survive such scrutiny, Bloom must establish that the

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Board’s denial of his request to attend County Commission meetings
and related activities during work hours is not “rationally related
to a legitimate government purpose.”

Williamson v. Lee Optical,

348 U.S. 486 (1955). Any conceivable purpose not prohibited by the
Constitution will pass this scrutiny.

Id.

In his complaint, Bloom argues that there is no rational basis
for the defendants to deny him the ability to take flex-time and
unpaid leave in order to attend County Commission meetings and
activities.

(Dkt. No. 1 at 15).

The defendants, however, have

provided the Court with a sufficient basis for their denial of
Bloom’s request.

They assert that granting Bloom’s request would

pose a “material hardship to the operation of the school and to the
students” due to a “compelling need for school counselors to be
present for a large percentage of the school day in order to attend
to the orderly operation of the school and its students.” (Dkt. No.
17 at 24).
Defendants’ explanation provides a rational basis for the
denial of Bloom’s request. In contrast to other school employees,
guidance

counselors

responsibilities.

do

not

have

concrete

schedules

or

They may be called on at any time on any day for

a variety of reasons.

If, for instance, a student is in need of

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Bloom’s guidance during the time he is away at County Commission
meetings and unable to respond, that student would be harmed as a
consequence of Bloom’s absence. Thus, the unique nature of his job
provides the Board with a legitimate basis for denying Bloom’s
request to leave work during school hours.
This case is distinguishable from other “class of one” cases
where courts have granted a plaintiff’s equal protection claim. In
those cases, the defendants could not provide any constitutional
justification for treating the plaintiff differently from others
similarly situated.

See Village of Willowbrook, 528 U.S. at 562;

Sioux City Bridge Co. v. Dakota County, 260 U.S. 441 (1923);
Allegheny Pittsburgh Coal Co. v. Commission of Webster Cty., 488
U.S. 336 (1989). Here, by contrast, the Board has provided a
legitimate justification for treating Bloom differently from other
employees–namely, his unique role as guidance counselor.
Thus, because Bloom has failed to clearly establish that he is
likely to succeed on his Fourteenth Amendment claim, the Court
adopts Magistrate Judge Kaull’s recommendation and denies Bloom’s
motion

for

preliminary

injunction

Amendment.
C.

12

based

on

the

Fourteenth

BLOOM V. THE BD OF EDUC. OF MON. CTY., ET AL.

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ADOPTING REPORT AND RECOMMENDATION
The

Court

acknowledges

Bloom’s

objections

that

1)

the

magistrate judge failed to properly consider the plain language of
the Board’s leave policies; 2) the magistrate judge failed to
consider the inherent nature of a high school guidance counselor’s
job; and 3) the magistrate judge misinterpreted W.Va. Code § 18-518b(f). (Dkt. No. 76 at 2-7).

However, these objections are

irrelevant to the Court’s determination of whether a preliminary
injunction is warranted in this case.
None change the Court’s findings on whether Bloom is entitled
to a preliminary injunction based on his federal constitutional
claims. Regardless of the language in the school’s leave policy,
the

nature

of

a

guidance

counselor’s

job,

or

the

true

interpretation of W.Va. Code § 18-5-18b(f), Bloom cannot establish
that the Board has violated his First or Fourteenth Amendment
rights. The fact remains that the Board has a valid, constitutional
basis to deny Bloom’s request to leave work during school hours to
attend County Commission meetings.
Moreover, Bloom’s objections on these issues are without
merit. He contends that the magistrate judge failed to properly
consider the plain language of the Board’s leave policies, and that
the policies are worded such that they allow him to utilize flex-

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time and unpaid leave in order to attend to County Commission
duties.

However, as both parties agree, it is ultimately within

the discretion of the Board to determine those circumstances where
an employee may take flex-time or unpaid leave.

In this instance,

the Board determined that it would not allow an employee to take
leave in order to attend to the duties of an outside job.

That

decision is rationally based and the Court therefore finds that the
Board validly denied Bloom’s request.
Bloom also contends that the magistrate judge failed to
properly consider the nature of a guidance counselor’s job. He
asserts that guidance counselors have great flexibility in their
work, making it unnecessary for them to be around for the entire
school day. Again, it is for the Board, not Bloom, to decide when
it needs its employees on duty.

When Bloom entered into his

employment contract with the Board, he agreed to be at work during
school hours.

He cannot now unilaterally change the terms of that

contract in order to accommodate his new position.
Additionally,

Bloom

asserts

that

misconstrued W.Va. Code § 18-5-18b(f).

the

magistrate

judge

He claims that the statute

does not, in fact, require guidance counselors to spend 75% of the
actual school day performing counseling duties. Rather, he believes

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the statute should be construed to include the time when he is
working outside of normal school hours.
Despite his argument, the statute unambiguously provides that
a counselor shall spend 3/4 of the school day performing counseling
duties and 1/4 or less of the day performing administrative duties.
W.Va. Code § 18-5-18b(f).

Bloom’s duties as a County Commissioner

do not fall under either of these categories.

Thus, based on the

plain language of the statute, the Court finds that the magistrate
judge accurately interpreted

W.Va. Code § 18-5-18b(f).

Bloom’s objections that the magistrate judge misinterpreted
the Board’s flex-time and leave provisions, failed to consider the
inherent nature of a guidance counselor’s job, and misconstrued
W.Va. Code § 18-5-18b(f) are wholly without merit and fail to
persuade the Court that a preliminary injunction

is warranted in

this case.
D.
Finally, Bloom objects to Magistrate Judge Kaull’s conclusion
that the doctrine of qualified immunity doctrine is applicable to
his preliminary injunction motion.

The Court agrees with Bloom

that the doctrine is inapplicable at this stage; the qualified
immunity doctrine immunizes government officials sued in their

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individual capacities for monetary, not the injunctive, relief
Bloom seeks here.
Pritchett

v.

Nevertheless,

Harlow v. Fitgerald, 457 U.S. 800, 818 (1982);

Alford,
the

973

F.2d

inapplicability

307,
of

312
the

(4th

Cir.

qualified

1992).
immunity

doctrine in no way advances any of Bloom’s claims. His preliminary
injunction motion still fails for the reasons already discussed.
Accordingly, the Court OVERRULES Bloom’s objections to the R&R.
V.
In conclusion, Bloom has failed to establish the elements
required to obtain a preliminary injunction.
1.

The Court therefore:

OVERRULES Bloom’s objections to the Report &
Recommendation (dkt. no. 76);

2.

ADOPTS the Report and Recommendation (dkt. no. 75); and

3.

DENIES Bloom’s motion for preliminary injunction. (Dkt.
No. 12).

If Bloom should desire to appeal the decision of this Court,
written notice of appeal must be received by the Clerk of this
Court within (30) days from the date of the entry on the Judgment
Order, pursuant to Rule 4 of the Federal Rules of Appellate
Procedure.
It is so ORDERED.

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ADOPTING REPORT AND RECOMMENDATION
The Court directs the Clerk to transmit copies of this
Memorandum Opinion and Order to counsel of record.
DATED: November 8, 2013
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

17