Dunlap et al v. Monroe County Board of Education

Filing 106

MEMORANDUM OPINION AND ORDER granting in part and denying in part Defendant's 11 MOTION to Dismiss: The motion to dismiss the Dunlaps' Title IX claims on their own behalf is GRANTED. Given that defendant fails to offer any other reason why the Dunlaps might not pursue such claims on their own behalf, the motion to dismiss these claims is DENIED. Signed by Senior Judge David A. Faber on 10/18/2017. (cc: attys) (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
ROBERT DUNLAP, et al.,
Plaintiffs,
v.

CIVIL ACTION NO. 1:16-11535

MONROE COUNTY BOARD
OF EDUCATION,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the court is defendant Monroe County Board of
Education’s (“Monroe County BOE” or “BOE”) motion to dismiss.
(ECF No. 11).

For reasons appearing to the court, that motion is

GRANTED in part and DENIED in part.
I.

Background

According to the complaint, the allegations of which are
taken as true for purposes of this motion, during the 2015-2016
school year, K.S. was a kindergarten student at Peterstown
Elementary School in Monroe County, West Virginia.
¶ 7.

See Complaint

During this timeframe, K.S. rode a school bus that was

operated by defendant Monroe County Board of Education (“Monroe
County BOE” or “BOE”).

See id. at ¶ 8.

Richard Riffe, an

employee of Monroe County BOE, was one of the drivers of K.S.’s
bus.

See id.

Students of all ages, from kindergarten through

high school, rode K.S.’s bus.

See id. at ¶ 9.

One student

riding on the bus with K.S. was B.B., a minor whose date of birth
is December 8, 2000.

See id. at ¶ 10.

Plaintiff Lynda Dunlap is K.S.’s biological grandmother.
See id. at ¶ 2.

The parental rights of K.S.’s biological mother

have been terminated and Robert and Lynda Dunlap were appointed
the guardians of K.S.

See id. at ¶ 3.

Dunlaps since he was a few months old.

K.S. has resided with the
See id.

On or about

January 12, 2016, Robert Dunlap met K.S. at the bus stop near
their home as he usually did at the end of the school day.
id. at ¶ 14.

See

After getting off the bus, K.S. asked Mr. Dunlap to

help him zip up and button his pants.

See id.

Finding it “odd”

that K.S.’s pants were unzipped and unbuttoned, Mr. Dunlap
questioned K.S. about why his pants were unzipped and K.S.
informed “Mr. Dunlap that he and B.B. had been playing a new
`doctor’ game.”

Id.

The next day, January 13, 2015, the Dunlaps reported the
incident to Lisa Mustain, the principal at James Monroe High
School.

See id. at 15.

As a result of a meeting between the

Dunlaps, Mustain, and Monroe County Deputy Sheriff M.J. Heller,
an appointment was scheduled for K.S. to be interviewed by a
child abuse expert at the Child and Youth Advocacy Center
(“CYAC”).

See id. at 16.

During a forensic interview at the

CYAC on January 14, 2016, “K.S. disclosed that B.B. had sexually
assaulted him on many occasions by performing oral sex on him and

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by fondling or groping him.
the bus.”

Id. at 17.

These sexual assaults occurred on

Surveillance videos from the bus

corroborated K.S.’s account of the abuse.

See id. at 20-21.

On November 30, 2016, the Dunlaps filed the instant
complaint on their own behalf and as the guardians and next
friends of K.S.

Named as a defendant is Monroe County BOE.

Count I is a claim for violation of Title IX and Count II is a
claim for vicarious liability.

Counts III-V are claims for

negligent training, negligent supervision, and negligent
retention.
The BOE has moved to dismiss the complaint pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure.

Specifically,

the BOE argues that the Title IX claim on K.S.’s behalf fails
because it fails to plead facts sufficient to establish that:

1)

K.S. was subjected to harassment based upon his sex; 2) the BOE
was deliberately indifferent in its response to the sexual
assault of K.S.; and 3) the BOE had actual knowledge of the
sexual assault of K.S. by B.B.

As to the Title IX claim brought

by the Dunlaps on their own behalf, the BOE asserts that it must
be dismissed because the Dunlaps lack standing to bring it.
Finally, defendant argues that the remaining claims brought by
the Dunlaps on their own behalf must be dismissed for failure to
state a claim upon which relief can be granted.

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II.

Standard of Review

"[A] motion to dismiss for failure to state a claim for
relief should not be granted unless it appears to a certainty
that the plaintiff would be entitled to no relief under any state
of facts which could be proved in support of his claim."

Rogers

v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir.
1989) (citation omitted) (quoting Conley v. Gibson, 355 U.S. 41,
48 (1957), and Johnson v. Mueller, 415 F.2d 354, 355 (4th Cir.
1969)).

"In considering a motion to dismiss, the court should

accept as true all well-pleaded allegations and should view the
complaint in a light most favorable to the plaintiff."

Mylan

Laboratories, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993);
see also Ibarra v. United States, 120 F.3d 474, 474 (4th Cir.
1997).
In evaluating the sufficiency of a pleading, the cases of
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662 (2009), provide guidance.

When reviewing a

motion to dismiss, under Federal Rule of Civil Procedure
12(b)(6), for failure to state a claim upon which relief may be
granted, a court must determine whether the factual allegations
contained in the complaint “give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests,”
and, when accepted as true, “raise a right to relief above the
speculative level.”

Twombly, 550 U.S. at 555 (quoting Conley v.

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Gibson, 355 U.S. 41, 47 (1957); 5 Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)).
“[O]nce a claim has been stated adequately, it may be supported
by showing any set of facts consistent with the allegations in
the complaint.”

Twombly, 127 S. Ct. at 1969.

As the Fourth

Circuit has explained, “to withstand a motion to dismiss, a
complaint must allege ‘enough facts to state a claim to relief
that is plausible on its face.’” Painter’s Mill Grille, LLC v.
Brown, 716 F.3d 342, 350 (4th Cir. 2013) (quoting Twombly, 550
U.S. at 570).
According to Iqbal and the interpretation given it by our
appeals court,
[L]egal conclusions, elements of a cause of
action, and bare assertions devoid of further
factual enhancement fail to constitute
well-pled facts for Rule 12(b)(6) purposes.
See Iqbal, 129 S.Ct. at 1949. We also
decline to consider “unwarranted inferences,
unreasonable conclusions, or arguments.”
Wahi v. Charleston Area Med. Ctr., Inc., 562
F.3d 599, 615 n. 26 (4th Cir. 2009); see also
Iqbal, 129 S. Ct. at 1951-52.
Ultimately, a complaint must contain
“sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible
on its face.’” Iqbal, 129 S.Ct. at 1949
(quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929
(2007)). Facial plausibility is established
once the factual content of a complaint
“allows the court to draw the reasonable
inference that the defendant is liable for
the misconduct alleged.” Id. In other
words, the complaint's factual allegations
must produce an inference of liability strong
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enough to nudge the plaintiff's claims
“‘across the line from conceivable to
plausible.’” Id. at 1952 (quoting Twombly,
550 U.S. at 570, 127 S.Ct. 1955).
Satisfying this “context-specific” test does
not require “detailed factual allegations.”
Id. at 1949-50 (quotations omitted). The
complaint must, however, plead sufficient
facts to allow a court, drawing on “judicial
experience and common sense,” to infer “more
than the mere possibility of misconduct.”
Id. at 1950. Without such “heft,” id. at
1947, the plaintiff's claims cannot establish
a valid entitlement to relief, as facts that
are “merely consistent with a defendant's
liability,” id. at 1949, fail to nudge claims
“across the line from conceivable to
plausible.” Id. at 1951.
Nemet Chevrolet, LTD v. Consumeraffairs.com, Inc., 591 F.3d 250,
255-56 (4th Cir. 2009).
III.
A.

Analysis

Sufficiency of Title IX allegations

Under Title IX, “[n]o 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(a).

Monroe County BOE

argues that the Title IX claim is subject to dismissal because it
“fail(s) to allege that K.S. was subjected to harassment based
upon his sex. . . .”

ECF No. 12 at p.5.

The BOE goes on to

state “[t]he sexual harassment that is at issue in the instant
matter is sexual harassment that occurred between K.S., a male,

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and B.B., a male, while allegedly being supervised by a male bus
driver, Mr. Riffe.”

Id.

The BOE’s argument is without merit.

First, the complaint clearly alleges that K.S. was subjected
to harassment and abuse based on sex and states sufficient facts
in support of that allegation including, but not limited to, the
following:
On January 14, 2016, K.S. disclosed that B.B. had
sexually assaulted him on many occasions by performing
oral sex on him and by fondling or groping him. These
sexual assaults occurred on the Bus.
* * *
K.S. was subjected to repeated sexual harassment
and sexual abuse on the Bus that was perpetrated by a
fellow student, B.B. Such sexual harassment and abuse
was severe, pervasive, and objectively offensive for
many reasons, including but not limited to the
following:
a.

it included repeated acts of unwanted sexual
contact and sexual intercourse, as those
terms are defined by West Virginia law.

b.

it was perpetrated by a fifteen-year-old boy
on a 5-6 year old boy who was half the size
of the perpetrator.

c.

it occurred on the Bus, which was being
supervised by Mr. Riffe and others at various
times.

Complaint at ¶¶ 17 and 55.

Accordingly, the sexual

abuse/harassment allegations are sufficiently pled.
To the extent that defendant appears to argue that
plaintiffs cannot maintain a Title IX sexual harassment/abuse
claim because the victim and abuser/harasser are of the same sex,

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such an argument is without merit.

“Where, as here, the harasser

is the same sex as the victim, demonstrating that the harassment
was based on sexual desire suffices to show that the harassment
was based on the victim’s sex.”

Doe v. Board of Educ. of Prince

George’s Cty., 888 F. Supp.2d 659, 665 (D. Md. 2012); see also
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)
(holding that, in the Title VII context, a same-sex plaintiff can
show that harassment is based on sex if he can show the
harassment was motivated by sexual desire).

In Prince George’s

County, the court concluded that plaintiff’s Title IX claim
adequately alleged that the harasser’s conduct was based on the
victim’s sex:
In this case, the allegations support the
inference that Classmate’s challenged conduct sprang
from sexual desire. Plaintiffs allege that Classmate
repeatedly made sexually explicit remarks to J.D.
Plaintiffs further allege that Classmate exposed his
genitalia to J.D. and forced J.D. to touch them.
Additionally, Plaintiffs allege the Classmate forced
J.D. to perform sex acts on him. Accordingly,
Plaintiffs have adequately alleged that the harassing
conduct was based on sex.
Prince George’s County, 888 F. Supp.2d at 665.

In this case, the

allegations regarding B.B.’s sexual contact with K.S. are clearly
sufficient to imply that the harassment herein was based on sex.
Furthermore, numerous courts have recognized that same-sex
harassment is actionable under Title IX.

See, e.g., Frazier v.

Fairhaven Sch. Comm., 276 F.3d 52, 66 (1st Cir. 2002) (“We
therefore hold that a hostile environment claim bases upon same8

sex harassment is cognizable under Title IX.”); D.V. by and
through B.V. v. Pennsauken Sch. Dist., 247 F. Supp.3d 464, 476
(D.N.J. 2017) (“[T]he court accepts that Title IX encompasses
same-sex sexual harassment.”); Doe v. Brimfield Grade School, 552
F. Supp.2d 816, 822-23 (C.D. Ill. 2008) (holding that claims of
same-sex harassment are viable under Title IX); Theno v.
Tonganoxie Unified Sch. Dist. No. 464, 377 F. Supp.2d 952, 963
(D. Kan. 2005) (“Therefore, the court readily concludes that
same-sex student-on-student harassment is actionable under Title
IX to the same extent that same-sex harassment is actionable
under Title VII.”); cf. Doe ex rel. Doe v. Dallas Indep. Sch.
Dist., 153 F.3d 211, 219 (5th Cir. 1998) (noting that the
defendants conceded in light of Oncale that same-sex sexual
harassment is actionable under Title IX).
“To establish a Title IX claim, a plaintiff must show that a
funding recipient acted with deliberate indifference to known
acts of sexual harassment so severe, pervasive, and offensive
that the harassment deprived the plaintiff of access to
educational opportunities or benefits.”

Feminist Majority Found.

v. Univ. of Mary Washington, Civil Action No. 3:17-cv-00344-JAG,
2017 WL 4158787, *3 (E.D. Va. Sept. 19, 2017) (emphasis added).
The BOE also argues that the complaint fails to state sufficient
factual allegations to show that defendant had actual knowledge
of the sexual assault of K.S. by B.B.

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However, plaintiffs

specifically allege that the BOE, “through its employees, Mr.
Riffe and others, had actual knowledge of the inappropriate
sexual behavior by B.B. against K.S.”

Complaint ¶ 56.

The

complaint further alleges that B.B. sexually abused K.S. on
numerous occasions and that surveillance videos from the school
bus show this abuse or, at a minimum, suspicious behavior that
should have alerted Riffe to the abuse.

Drawing all reasonable

inferences in plaintiffs’ favor, as the court must at this stage
of the proceedings, the court concludes that the complaint
sufficiently alleges that defendant had actual notice of the
alleged harassment/abuse.1

Whether plaintiffs will be able to

produce evidence showing such actual knowledge can be addressed
on summary judgment.2

Likewise, defendant’s argument that the

1

Because defendant does not even mention the issue, the
court does not consider whether actual knowledge by Riffe of the
abuse could be imputed to the BOE for purposes of Title IX
liability.
2

Plaintiffs’ complaint and their opposition to the motion
to dismiss suggest that actual notice and/or deliberate
indifference might be demonstrated by pointing to other instances
of misconduct on buses not involving K.S. or B.B. or prior
inappropriate conduct by B.B. not involving K.S. See Complaint
¶¶ 34-41. However, the United States Court of Appeals for the
Fourth Circuit has adopted a more exacting standard and held
“that Title IX liability may be imposed only upon a showing that
school district officials possessed actual knowledge of the
discriminatory conduct in question.” Baynard v. Malone, 268 F.3d
228, 238 (4th Cir. 2001); see also Facchetti v. Bridgewater
College, 175 F. Supp.3d 627, 639 (W.D. Va. 2016) (“[Plaintiff]
cites to a number of cases for the proposition that prior
harassing conduct need not be `plaintiff specific’ or involve the
same perpetrator that assaulted the plaintiff for a university’s
deliberate indifference to prior complaints to result in Title IX
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complaint fails to adequately plead deliberate indifference is
best resolved by a motion under Rule 56 and, therefore,
defendant’s motion to dismiss for this reason is likewise
denied.3
B.

Dunlaps’ Standing under Title IX

The Monroe County BOE also argues that Robert and Lynda
Dunlap lack standing to bring individual claims under Title IX.
The court agrees with defendant.

Indeed, numerous courts have so

held and plaintiffs have not pointed to any authority to suggest
otherwise.

See, e.g., Phillips v. Anderson Cnty. Bd. of Educ.,

259 F. App’x 842, 843 n.1 (6th Cir. 2008) (per curiam) (noting
that, in light of plaintiff’s concession, district court
correctly dismissed her father for lack of standing based on fact
that he was neither potential beneficiary of federally funded
program nor employee of such program so he could not assert his
own claims under Title IX); Rowinsky v. Bryan Indep. Sch. Dist.,
80 F.3d 1006, 1009 n.4 (5th Cir. 1996) (“We conclude that
Rowinsky does not have standing to assert a personal claim under
title IX.

It is undisputed that she has standing, as next of

friend, to assert the claims of her daughters, but nothing in the

liability. . . . In the Fourth Circuit, though, there is a
requirement that the defendant have actual notice of harassment
against the plaintiff.”).
3

This is especially true given the parties’ dispute as to
whether and when defendant had actual notice.
11

statutory language provides her with a personal claim under title
IX.”); Lopez v. Regents of the Univ. of California, 5 F. Supp.3d
1106, 1114 (N.D. Cal. 2013) (acknowledging that parents do not
have standing to assert “a personal claim under Title IX” but
that they may “assert Title IX claims on behalf of a student”)
(emphasis in original); HB v. Monroe Woodbury Cent. Sch. Dist.,
No. 11-CV-5881 (CS), 2012 WL 4477552, *18 (S.D.N.Y. Sept. 27,
2012) (holding parents lacked “standing to pursue Title IX claims
on their own behalf.”); Jones v. Beverly Hills Unified Sch.
District, No. WD CV 08-7201-JFW (PJW), 2010 WL 1222016, *2 (C.D.
Cal. Mar. 24, 2010) (“Plaintiff Chelsea Jones, therefore, has the
right to pursue a private cause of action under Title IX.

But,

her mother does not.”); Seiwert v. Spencer-Owen Community School
Corp., 497 F. Supp.2d 942, 954 (S.D. Ind. 2007) (“[I]t is
apparent from the language of Title IX that a parent lacks
standing to bring a cause of action in their individual capacity
based on Title IX.

Title IX only protects against actions that

interfere with educational opportunities or activities.

Because

there are no educational opportunities or activities that the
parents are excluded from, they have no claim.”); Haines v.
Metro. Gov’t of Davidson County, Tenn., 32 F. Supp.2d 991, 1000
(M.D. Tenn. 1998) (“Defendants correctly state that, typically, a
parent may not bring a claim under Title IX. . . .

As noted

above, the parents of a child suing under Title IX cannot bring

12

an action to recoup such expenses unless suing on behalf of their
daughter or son.”).

For this reason, the motion to dismiss the

Dunlaps’ Title IX claims on their own behalf is GRANTED.
C.

Sufficiency of Allegations Regarding Dunlaps’
Individual Claims

Defendant argues that the Dunlaps’ other claims in their
individual capacities, Counts II through V, should be dismissed.
Without much discussion, defendants contend that the “factual
allegations are insufficient to allow Plaintiffs Robert and Lynda
Dunlap, in their individual capacities, to recover under any of
the causes of action set forth in the Complaint.”
p.8.

ECF No. 12 at

Defendant does not even enumerate what those claims are –

negligence/vicarious liability (Count II) and negligent training,
supervision, and retention (Counts III-V).

Furthermore,

defendant does not seek dismissal of the Dunlaps’ claims on
behalf of K.S., an implicit acknowledgment that those claims are
adequately pled.
pled.

The court finds that Counts II-V are adequately

Given that defendant fails to offer any other reason why

the Dunlaps might not pursue such claims on their own behalf, the
motion to dismiss these claims is DENIED.

Defendant is, however,

free to seek dismissal of those claims via a motion for summary
judgment.
IV.

Conclusion

For the reasons discussed above, the motion to dismiss is
GRANTED in part and DENIED in part.
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The Clerk is requested to

send a copy of this Memorandum Opinion and Order to counsel of
record.
IT IS SO ORDERED this 18th day of October, 2017.
ENTER:

David A. Faber
Senior United States District Judge

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