S.R. et al v. Fayette County Board of Education et al

Filing 50

MEMORANDUM OPINION AND ORDER granting the Fayette County Board of Education's 8 MOTION to Dismiss as to Counts II and III of the complaint; and denying said motion as to Count IV of the complaint. Signed by Judge John T. Copenhaver, Jr. on 11/21/2016. (cc: counsel of record; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
S.R., individually
and as parent and
guardian of B.H., a minor,
Plaintiff,
v.

Civil Action No. 15-13466

FAYETTE COUNTY BOARD OF EDUCATION
and STEVEN RICHARD (RICK) MALAY,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is the motion to dismiss filed by the Fayette
County Board of Education (“the Board”) on December 31, 2015.
I.

Factual and procedural background
A.

B.H. is the daughter of S.R., see Complaint ¶ 1
(“Compl.”), and was, during the relevant time period, a minor.
Compl. ¶¶ 3-4.

The Board is the county agency responsible for

governing the public schools in Fayette County, West Virginia.
Id. ¶ 5.

Defendant Steven Richard Malay (“Malay”) was employed

by the Board as a school bus driver during the relevant period.
Id. ¶ 6.

B.H. rode to school on the bus driven by Malay from

about the sixth grade to the ninth grade.
1

Id. ¶ 9.

Currently,

Malay is incarcerated at the Huttonsville Correctional Center in
Huttonsville, West Virginia.

Id. ¶ 6.1

Malay began “grooming” B.H. for sexual abuse “by
making inappropriate comments about her body.”

Id. ¶ 10.

Malay’s comments made B.H. feel “very uncomfortable,” and she
“verbally discouraged” Malay from speaking to her in that way.
Id. ¶ 10.

Upon being rebuffed, Malay told the school principal

that B.H. had spoken disrespectfully to him, whereupon the
principal met with B.H. and scolded her.

Id. ¶¶ 11-12.

When

B.H. told the principal that Malay had made inappropriate
comments about her appearance and that she felt uncomfortable,
the principal assured B.H. that he would speak with Malay about
it later.

Id. ¶ 13.

Not long after, “Malay asked B.H. to sit

up near the front of the bus,” closer to him, id. ¶ 14, and then
continued to make inappropriate, sexualizing comments to her.
Id. ¶¶ 14-15.
When B.H. objected to a comment Malay made about her
hair, Malay again reported B.H. to the principal.

Id. ¶ 16.

The principal called B.H. and Malay into a second meeting, in
which he forced B.H. to apologize to Malay, though this time he

1

Malay pleaded guilty to one count of sexual abuse (relating to
abuse of B.H.) and was sentenced on September 20, 2014, to serve
10 to 20 years in prison. Compl. ¶ 41.
2

also told Malay that he “had better stop” making inappropriate
comments about B.H.’s appearance.
B.H. apologized.

Id. ¶ 18.

Id. ¶ 17.

Malay laughed when

After the second meeting with the

principal, Malay’s comments became “worse and more suggestive,”
and he also began openly “ogling” B.H. on the bus.

Id. ¶¶ 19-

20.
When B.H. was in the ninth grade and about 14 years
old, Malay began telling B.H. that “they needed to meet up.”
Id. ¶ 21.

Malay also told B.H. that he watched her while she

was in the pool in her back yard.

Id. ¶ 22.

On October 3, 2012, Malay “pulled into B.H.’s driveway
and told her to start wearing lower cut shirts.”

Id. ¶ 23.

The

next day, he gave B.H. his cell phone number, id. ¶ 24, and the
day after that, “after years of grooming [B.H.], [Malay] met
B.H. at his farm, not his residence, where they engaged in
sexual relations.”

Id. ¶ 25.

Id. ¶ 25.
B.

S.R. initiated this four-count action on behalf of
B.H. on September 25, 2015.

See Compl. ¶ 1.

The Board is not

named in Count I of the complaint, wherein S.R. charges Malay
with violating B.H.’s Fourteenth Amendment rights, and seeks
recovery under 42 U.S.C. § 1983.
3

Id. ¶¶ 42-50.

The Board is named in the remaining three counts, as
to each of which it has filed its motion to dismiss.

In Count

II, S.R. charges Malay and the Board with a violation of B.H.’s
rights protected both by article III, section 10, of the West
Virginia state constitution (the state’s Due Process Clause) and
the Fourteenth Amendment to the United States Constitution.
¶¶ 51-57.

Id.

In Count III, S.R. claims that B.H. was subjected by

Malay to sexual harassment in violation of the West Virginia
Human Rights Act (“the HRA”) and that the Board had supervisory
liability for Malay’s harassment.
¶¶ 58-62.

W. Va. Code § 5-11-1; Compl.

In Count IV, S.R. alleges that the Board was

negligent in supervising Malay.

Compl. ¶¶ 63-67.

On December 31, 2015, the Board filed the pending
motion to dismiss.

The Board contends that the West Virginia

Governmental Tort Claims and Insurance Reform Act (“the GTCA”),
West Virginia Code § 29-12A-1, shields it from liability with
respect to Counts II and III, inasmuch as Malay’s acts were
intentional, not negligent, acts.
(“Bd. Mot.”) ¶¶ 2, 4.

See Defs.’ Mot. to Dismiss

As a corollary, the Board asserts that it

is immune from liability under 42 U.S.C. § 1983 for Malay’s
intentional acts.

Bd. Mot. ¶ 1.

S.R. explicitly states,

however, that she brings no section 1983 claim against the
Board, Compl. ¶ 52, but rather against Malay, id. ¶¶ 43-44.

4

With respect to Count IV, the Board asserts that S.R. fails to
allege facts sufficient to sustain a claim of negligent
supervision.

Id. ¶ 3.

S.R. responds that certain provisions of the GTCA
eliminate the Board’s immunity from Malay’s actions.
Resp. (“Resp.”) 13.

See Pl.

S.R. further contends that she stated a

claim for negligent supervision sufficient to survive dismissal.
Id. 17-18.
II.

Standard governing motions to dismiss

Federal Rule of Civil Procedure 8(a)(2) requires that
a pleader provide “a short and plain statement of the claim
showing . . . entitle[ment] to relief.”

Fed. R. Civ. P.

8(a)(2); Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007).

Rule

12(b)(6) correspondingly permits a defendant to challenge a
complaint when it “fail[s] to state a claim upon which relief
can be granted. . . .”

Fed. R. Civ. P. 12(b)(6).

The required “short and plain statement” must provide
“‘fair notice of what the . . . claim is and the grounds upon
which it rests.’”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

545 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957),
overruled on other grounds by Twombly, 550 U.S. at 563); see
also Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th Cir.
5

2007).

In order to survive a motion to dismiss, “a complaint

must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting
Twombly, 550 U.S. at 570); see also Monroe v. City of
Charlottesville, 579 F.3d 380, 386 (4th Cir. 2009) (same).
Application of the Rule 12(b)(6) standard requires
that the court “‘accept as true all of the factual allegations
contained in the complaint. . . .’”

Erickson, 127 S. Ct. at

2200 (quoting Twombly, 127 S. Ct. at 1965); see also S.C. Dept.
of Health & Envtl. Control v. Commerce and Indus. Ins. Co., 372
F.3d 245, 255 (4th Cir. 2004) (quoting Franks v. Ross, 313 F.3d
184, 192 (4th Cir. 2002)).

Factual allegations are to be

distinguished from legal conclusions, which the court need not
accept as true.

Iqbal, 556 U.S. at 678 (“[T]he tenet that a

court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.”).

The court

must also “draw[] all reasonable . . . inferences from th[e]
facts in the plaintiff's favor. . . .”

Edwards v. City of

Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).

6

III. Discussion
A.

Counts II and III -- Violation of the West
Virginia Constitution and Human Rights
Act, respectively

In Count II, S.R. alleges “a constitutional tort
action” against the Board under both article III, section 10, of
the West Virginia constitution and the Fourteenth Amendment to
the United States Constitution.

Compl. ¶¶ 52-53.

The reference

to the Fourteenth Amendment, however, is perfunctory and, as the
court explains below, cannot be used to bootstrap Count II of
the complaint so as to survive dismissal as to the Board.
Article III, section 10, of the West Virginia
constitution provides as follows:
No person shall be deprived of life, liberty, or
property, without due process of law, and the judgment
of his peers.
W. Va. Const. art. III, § 10.

In regard to this constitutional

provision, the West Virginia Supreme Court of Appeals has stated
that,
[u]nless barred by one of the recognized statutory,
constitutional or common law immunities, a private cause
of action exists where a municipality or local
governmental unit causes injury by denying that person
rights that are protected by the Due Process Clause
embodied within Article 3, § 10 of the West Virginia
Constitution.

7

Syl. Pt. 2, Hutchinson v. City of Huntington, 198 W. Va. 139
(1996).

S.R., apparently in reference to this language,

declares in the complaint that her state constitutional tort
action in Count II is brought “pursuant to the common law of
West Virginia[.]”

Compl. ¶ 52.

In Count III, S.R. alleges that the defendants
violated unspecified provisions of the HRA, W. Va. Code § 55-11, see Compl. ¶ 59, and charges them with “liab[ility] to B.H.
for sexual harassment,” Compl. ¶ 59.

With respect to the Board

specifically, S.R. states that, “[b]ecause [] Malay is a
supervisory employee in relationship to the students who ride
his school bus . . . [the] Board is liable for [] Malay’s acts .
. . .”

Id. ¶ 60.
1.
In its motion to dismiss, the Board, apparently

conceding for purposes of its motion that Malay engaged in the
conduct described above, nevertheless contends that the GTCA
grants it immunity from liability for Malay’s intentional acts.
See Board Mem. in Supp. of Mot. to Dismiss 8-9 (hereinafter
“Board Mem.”).

The Board further asserts that Malay’s acts were

outside the scope of his employment.

See id. 9.

According to

the Board, it cannot be held vicariously liable for its
employee’s intentional acts done outside the scope of his
8

employment.

S.R., in her response in opposition, although

apparently conceding the intentional nature of Malay’s acts,
contends that the Board may be held liable for the
constitutional tort on the grounds that the immunity statute is
inapplicable to this action.
The GTCA is designed “to limit liability of political
subdivisions and provide immunity to political subdivisions in
certain instances and to regulate the costs and coverage of
insurance available to political subdivisions for such
liability.”

W. Va. Code § 29-12A-1.

Except as provided below,

a political subdivision is not liable in damages in a
civil action for injury, death, or loss to persons or
property allegedly caused by any act or omission of
the political subdivision or an employee of the
political subdivision in connection with a
governmental or proprietary function . . . .
W. Va. Code § 29-12A-4(b)(1).

The GTCA permits liability as

follows:
(c) . . . a political subdivision is liable in damages
in a civil action for injury, death, or loss to persons
or property allegedly caused by an act or omission of
the political subdivision or of any of its employees in
connection with a governmental or proprietary function,
as follows:
. . . .
(2) Political subdivisions are liable for injury,
death, or loss to persons or property caused by the
negligent performance of acts by their employees
while acting within the scope of employment.
9

. . . .
(5) In addition to the circumstances described in
subsection (c)(1) to (4) of this section, a
political subdivision is liable for injury, death,
or loss to persons or property when liability is
expressly imposed upon the political subdivision by
a provision of this code.
W. Va. Code § 29-12A-4(c).
The West Virginia Supreme Court of Appeals has held
that the GTCA makes political subdivisions immune from liability
for the intentional acts of their employees.

In Mallamo v. Town

of Rivesville, the court, when considering whether the Town of
Rivesville could be vicariously liable for a civil conspiracy
claim against a police officer, stated that because “conspiracy
is an intentional act, not a negligent one, the Town of
Rivesville would not be liable for any intentional malfeasance
on the part of [the officer].”

197 W. Va. 616, 624 (1996),

modified on other grounds by Smith v. Burdette, 211 W. Va. 477
(2002); see also Zirkle v. Elkins Rd. Pub. Serv. Dist., 221 W.
Va. 409, 414 (2007) (“Only claims of negligence specified in W.
Va. Code, 29–12A–4(c) can survive immunity from liability under
the general grant of immunity in W. Va. Code, 29–12A–4(b)(1).”).
The Mallamo holding was recently restated by this court in Gilco
v. Logan County Commission, Civil Action No. 11-0032, 2012 WL
3580056, at *8 (S.D. W. Va. Aug. 17, 2012).

10

S.R. attempts to defeat the Board’s claim of immunity
by pointing out that Count II charges the Board with violating
B.H.’s rights protected by the Fourteenth Amendment to the
United States Constitution, and is therefore outside the scope
of GTCA immunity pursuant to section 29-12A-18 of the West
Virginia Code, which provides, in relevant part, as follows:
This article does not apply to, and shall not be
construed to apply to . . . (e) Civil claims based upon
alleged violations of the constitution or statutes of
the United States except that the provisions of section
eleven of this article shall apply to such claims or
related civil actions.2
Of course, S.R. specifically disclaims this action as being
brought under 42 U.S.C. § 1983 as against the Board.

Thus,

there is no vehicle for maintaining a Fourteenth Amendment claim
against the Board.
The implied private right of action for state
constitutional violations was set out in Hutchinson v. City of
Huntington, 198 W. Va. 139 (1996), where the court stated as
follows:
Unless barred by one of the
constitutional, or common law
cause of action exists where a
governmental unit causes injury
2

recognized statutory,
immunities, a private
municipality or local
by denying that person

Section 11 provides that the state will defend its employees
from suits arising under Article 12A. See W. Va. Code § 29-12A11.
11

rights that are protected by the Due Process Clause
embodied within Article 3, [Section] 10 of the West
Virginia constitution.
Id. at Syl. Pt. 2.

No provision is made in Hutchinson for an

implied cause of action under West Virginia law for an alleged
violation of a federal constitutional right.

Such an action

exists in statutory form through 42 U.S.C. § 1983 and in
decisional form against the federal government through Bivens v.
Six Unknown Named Agents, 403 U.S. 388 (1971).
It is not enough to activate the immunity-limiting
effect of section 29-12A-18(e) simply to include a reference to
the Fourteenth Amendment in the middle of Count II, which
clearly contemplates an action based on an alleged violation of
the West Virginia constitution.

The inclusion of a reference to

the Fourteenth Amendment does not transform an action under
state common law into one involving the federal Constitution.
Such an action, namely, an implied private right of action in
state law for violation of a provision of the federal
Constitution, does not exist.

Consequently, S.R.’s argument

that Count II involves a federal constitutional claim, and
therefore falls outside the reach of the GTCA, is unpersuasive.
2.

12

With respect to Count III, the Board’s vicarious
liability for Malay’s acts in violation of the HRA, S.R. asserts
that, because Malay was a “supervisory employee” over the
schoolchildren on his school bus, the ordinary rule against
vicarious liability for employers when employees act with intent
is inapplicable.

Further, S.R. argues that the immunity statute

does not apply because liability is imposed “expressly” by the
HRA.
The HRA is intended to prevent discriminatory
practices in employment, public places, and housing within West
Virginia.

See W. Va. Code § 5-11-2.

The HRA defines

“employer,” “discriminate,” and “place of public accommodations”
as follows:
(d) The term “employer” means the state, or any political
subdivision thereof . . . .
(h) The term “discriminate” or “discrimination” means to
exclude from, or fail or refuse to extend to, a person
equal opportunities because of race, religion, color,
national
origin,
ancestry,
sex,
age,
blindness,
disability or familial status and includes to separate
or segregate . . . .
(j) The term “place of public accommodations” means any
establishment or person, . . . including the state, or
any political or civil subdivision thereof, which offers
its services, goods, facilities or accommodations to the
general public, but shall not include any accommodations
which are in their nature private.

13

W. Va. Code § 5-11-3(d), (h), (j).

The HRA makes unlawful the

following discriminatory practices pertinent to the pending
motion to dismiss:
(6) For any person being the owner, lessee, proprietor,
manager, superintendent, agent or employee of any place
of public accommodations to:
(A) Refuse, withhold from or deny to any individual
because of his or her race, religion, color, national
origin, ancestry, sex, age, blindness or disability,
either
directly
or
indirectly,
any
of
the
accommodations, advantages, facilities, privileges or
services of the place of public accommodations; . . .
[and]
(7) For any . . . employer . . . to:
(A) Engage in any form of threats or reprisal, or to
engage in, or hire, or conspire with others to commit
acts or activities of any nature, the purpose of which
is to harass, degrade, embarrass or cause physical harm
or economic loss or to aid, abet, incite, compel or
coerce any person to engage in any of the unlawful
discriminatory practices defined in this section . . .
.
W. Va. Code § 5-11-9(6)-(7).

Further, section 5-11-9 provides

for a cause of action against an employer for aiding or abetting
a person committing an unlawful discriminatory act.

See W. Va.

Code 5-11-9; see also Conrad v. ARA Szabo, 198 W. Va. 362, 378
(1996) (citing Holstein v. Norandex, Inc., 194 W. Va. 727, 730
(1995)).
Regarding the possibility of vicarious liability under
the HRA, the court begins by observing that S.R.’s conception of
14

a supervisory employee is singularly broad.

As noted, S.R.

suggests that Malay was a “supervisory employee” in the sense
that he supervised the children who rode on the bus he drove.
This is an unusual formulation of the supervisory employee
concept, and finds little support in the cases.

Without

exception, consideration of supervisory authority has arisen in
the employment context where the supervisory employee was
claimed to have committed a wrong to another, subordinate
employee.

See, e.g., Hanlon v. Chambers, 195 W. Va. 99 (1995)

(employment discrimination/harassment); Colgan Air v. Human
Rights Comm’n, 221 W. Va. 588 (2007) (same).

The court is

unable to locate, and S.R. does not provide a reference to, any
case in which the concept of supervisory liability was applied
to a person who supervised his claimed victim in the literal,
non-employment sense of the word.

The cases to which S.R. does

cite as supporting a broader sense of respondeat superior, in
turn, do not involve “supervisory” liability, or are otherwise
factually distinguishable.
S.R.’s contentions regarding the express imposition of
vicarious liability on the Board by “another provision” of state
law in this case are likewise unpersuasive.

In particular, S.R.

claims that West Virginia Code section 5-11-9(7) expressly
imposes vicarious lability on employers who aid or abet an

15

employee in causing harm.

The complaint is simply devoid of any

suggestion that such conduct occurred here.
There is, in short, no section of state law that
expressly imposes vicarious liability, over the provisions of
the immunity statute, on the Board for Malay’s intentional acts.
The court is thus unable to conclude that S.R. has stated a
claim for relief that overcomes the immunity set forth in the
GTCA on that basis.

Accordingly, both Count II and Count III of

the complaint are subject to dismissal as to the Board under
Rule 12(b)(6).
B.

Count IV -- Negligent supervision

In Count IV, S.R. charges the Board with negligent
supervision of defendant Malay.

In particular, S.R. alleges

that “there were a number of reports, events, and incidents,”
all “actually known” by the Board, which “required [the] Board
to take more affirmative actions to prevent what ultimately
occurred in this case.”

Compl.

¶ 64.

A negligent supervision claim focuses on an employer’s
culpability for failing to adequately supervise an employee whom
the employer knew, or should have known, posed a risk to third
parties.

If the employee later commits a tort, the employer may

be directly liable.

As with negligence torts generally, the
16

negligent supervision analysis centers on whether the employer
was on notice of the employee’s propensity (creating a duty),
yet unreasonably failed to take action (manifesting a breach),
resulting in harm to a third-party from the employee’s tortious
conduct.

See 30 C.J.S. Employer—Employee § 205 (“It is

necessary to show that the employer knew or should have known
its employee behaved in a dangerous or otherwise incompetent
manner, and that the employer, having this knowledge, failed to
supervise the employee adequately, or take other action to
prevent the harm.” (footnotes omitted)); see also Woods v. Town
of Danville, W. Va., 712 F. Supp. 2d 502, 514-15 (S.D. W. Va.
2010) (“Under West Virginia law, negligent supervision claims
must rest upon a showing that [the Town of] Danville failed to
properly supervise Jarrett and, as a result, Jarrett proximately
caused injury to the plaintiffs.” (citing Taylor v. Cabell
Huntington Hosp., Inc., 538 S.E.2d 719, 725 (W. Va. 2000)));
McCormick v. W. Va. Dep't of Pub. Safety, 503 S.E.2d 502, 507
(W. Va. 1998) (per curiam) (dealing with the closely-related
torts of negligent hiring and retention) (“‘[W]hen the employee
was hired or retained, did the employer conduct a reasonable
investigation into the employee's background vis a vis the job
for which the employee was hired and the possible risk of harm
or injury to co-workers or third parties that could result from
the conduct of an unfit employee? Should the employer have
17

reasonably foreseen the risk caused by hiring or retaining an
unfit person?’” (quoting State ex rel. W. Va. State Police v.
Taylor, 201 W. Va. 554, 561 n.7 (1997))).
Negligent supervision is a theory of direct liability,
not respondeat superior.

See 30 C.J.S. Employer—Employee § 204

(“Like negligent hiring, negligent retention is based on the
employer’s act or omission, and not on respondeat superior, but
the employee’s underlying tort is also an essential element.”
(footnotes omitted)); Restatement (Second) of Agency § 213 cmt.
d (“Liability results under the rule stated in this Section, not
because of the relation of the parties, but because the employer
antecedently had reason to believe that an undue risk of harm
would exist because of the employment.”).

In West Virginia

Regional Jail & Correctional Facility Authority v. A.B., 766
S.E.2d 751 (W. Va. 2014), the Supreme Court of Appeals
considered a negligent training/supervision/retention claim
against the Authority arising out of the alleged sexual abuse of
an inmate by a corrections officer.

The court began “by

observing that it [wa]s of no consequence . . . that the parties
characterize[d] th[e claim] as a ‘direct’ claim against the
[Authority.]”

Id. at 772.

Instead, it concluded that the claim

was “based on vicarious liability,” because no “general duty was
statutorily or otherwise imposed upon the State,” and “the

18

negligence alleged in the complaint [could] be traced to a
particular individual(s).”

Id.; see also id. at 773 (“[W]e

disagree with respondent that this Court has previously held
that negligent hiring, supervision, and retention claims are per
se viable causes of action against the State or its agencies.”).
“Having clarified” that “[t]he training, supervision,
and retention of [the offending corrections officer]
unquestionably fell to some public officer(s) or employee(s)
from whose alleged negligence the [inmate’s] claim derives,” id.
at 772, the court then explained that the Authority, as a State
agency, could only be vicariously liable if: (1) any negligence
with respect to training, supervision, or retention was
committed within the scope of an Authority employee’s
employment; and (2) the negligence “violated a ‘clearly
established’ right or law with respect to [] training,
supervision, or retention,” id. at 773-74.

See also id. at 765

(“[W]e believe that situations wherein State actors violate
clearly established rights while acting within the scope of
their authority and/or employment [] are reasonably borne by the
State.”).

Here, the claimed negligent failure to supervise

Malay can be traced to the unnamed school principal who spoke
with B.H. and Malay about Malay’s behavior.
18.

19

See Compl. ¶¶ 11-

“[W]hether an agent is acting within the scope of his
employment . . . is generally a question of fact for the jury,”
but may be decided by the court as a matter of law when the
facts are undisputed and “the relationship between an employee’s
work and wrongful conduct is so attenuated that a jury could not
reasonably conclude that the act was within the scope of
employment.”

A.B., 766 S.E.2d at 768 (internal citations and

quotation marks omitted).

As the supreme court of appeals has

previously explained:
[I]t may be said that an act is within the course of
employment, if: (1) [i]t is something fairly and
naturally incident to the business and (2) it is done
while the servant was engaged upon the master’s business
and is done, although mistakenly or ill-advisedly, with
a view to further the master’s interests, or from some
impulse or emotion which naturally grew out of or was
incident to the attempt to perform the master’s
business, and did not arise wholly from some external,
independent and personal motive on the part of the
servant to do the act upon his own account.
Foodland v. W. Va. Dep’t of Health & Human Res., 532 S.E.2d 661,
665 (W. Va. 2000) (quotation marks and citation omitted); see
also A.B., 766 S.E.2d at 768-70 (collecting cases).
The court in A.B. had no occasion to decide, but
seemed to assume, that simple negligence with respect to
training, supervision, or retention would fall within a
supervisory employee’s scope of employment.

See 766 S.E.2d at

774 n.29 (noting that the Authority did not argue “that any such
20

alleged negligence” would fall outside the scope of employment);
see also id. at 772 (“The training, supervision, and retention
of D.H. unquestionably fell to some public officer(s) or
employee(s), from whose alleged negligence respondent’s claim
derives.”).
Here, too, the allegations in the complaint strongly
suggest that the unnamed principal was, in some capacity,
Malay’s supervisor.

See Compl. ¶¶ 11-18 (indicating that the

principal spoke with Malay about his inappropriate comments to
B.H.).

Surely it is within the scope of a school principal’s

duties to investigate complaints of inappropriate sexual
advances by employees of the school toward its students and to
ensure that employees do not engage in sexually inappropriate
conversation or activity with schoolchildren.

See Friedrichs v.

Ballard, No. 13-0031, 2013 WL 5967036 (W. Va. 2013), at *11
(referring to the position of school principal as “a position of
trust”).

Nonetheless, the precise nature of the principal’s

supervisory relationship to Malay requires factual development
during discovery.
The complaint includes allegations indicating that the
unnamed principal was aware of at least some of Malay’s
inappropriate and disturbing behavior toward B.H.

See, e.g.,

Compl. ¶¶ 11-18 (detailing the events that came to the attention
21

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
THOMAS PARKER,
of the principal, namely, B.H.’s complaints that Malay was
Plaintiff,
speaking to her in a way that made her uncomfortable).

In

v.
particular, the complaint alleges thatCivil Action No. 15-14025
“[w]hen B.H. told the
THE DOW CHEMICAL COMPANYwas making DISABILITY PROGRAM,
principal that [] Malay LONG TERM inappropriate comments to her
an Employee Welfare Benefits Plan,
LIBERTY LIFE ASSURANCE COMPANY OF BOSTON, assured [by] the
that made her feel uncomfortable, B.H. was
a Massachusetts Corporation, and
DOES 1 THROUGH 10, inclusive, to speak with [] Malay about the
principal [that he] was going
comments.”Defendants.13.
Id. at ¶

Nothing, however, appears to have come

ORDER The allegations in the complaint
of that private conversation. AND NOTICE
Pursuant to L.R. as true, to survive dismissal under
are sufficient, when taken Civ. P. 16.1, it is ORDERED that the
following dates are hereby fixed as the time by or on which
certain eventsof S.R.’s negligent supervision claim against the
Rule 12(b)(6) must occur:
01/28/2016
Motions under F.R. Civ. P. 12(b), together with
Board.
supporting briefs, memoranda, affidavits, or other
such matter in support thereof. (All motions
unsupported by memoranda will be denied without
IV. Conclusion
prejudice pursuant to L.R. Civ. P. 7.1 (a)).
02/08/2016

Last day for Rule 26(f) meeting.
For the reasons set forth above, the court ORDERS that
02/15/2016
Last day to file Report of Parties= Planning
See by defendant Fayette County Board of
the motion to Meeting. filed L.R. Civ. P. 16.1.
dismiss
Education
02/22/2016 on December 31,conference at 4:30 herebyat the Robert as
Scheduling 2015, be, and it p.m. is, granted C.
Byrd United States Courthouse in Charleston, before
to Counts II and III of the complaint.canceled. Lead counsel
It is further ORDERED
the undersigned, unless
directed to appear.
that the Board’s motion be, and it hereby is, denied as to Count
02/29/2016
Entry of scheduling order.
IV of the complaint.
03/08/2016
Last day to serve F.R. Civ. P 26(a)(1) disclosures.
The Clerk is requested to transmit this Orderthis
copies of and
Notice to all counsel of record and to any unrepresented
order to all counsel of record and any unrepresented parties.
parties.
DATED:
DATED:

January 5, 2016
November 21, 2016

John T. Copenhaver, Jr.
United States District Judge
22