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J.W. v. The Johnston County Board of Education

United States District Court, E.D. North Carolina, Western Division

September 24, 2014

J.W., by and through his parent and guardian, and BRENDA NEWSOME, Plaintiffs,
THE JOHNSTON COUNTY BOARD OF EDUCATION, ED CROOM, in his individual and official capacities, and JENNIFER MOORE, in her individual and official capacities, Defendants.


JAMES C. DEVER, III, Chief District Judge.

Former special-education teacher Brenda Newsome and her former student, J.W., ("plaintiffs") have sued the Johnston County Board of Education, Board Superintendent Ed Croom, and principal Jennifer Moore ("defendants"). See Am. Compl. [D.E. 17]. Plaintiffs' amended complaint contains a variety of federal and state claims concerning Newsome's employment and J.W.'s educational environment. See id. On September 24, 2012, the court granted in part and denied in part defendants' partial motion to dismiss the amended complaint. On September 3, 2013, defendants moved for summary judgment on the remaining claims [D.E. 39]. On October 22, 2013, plaintiffs responded in opposition [D.E. 51]. On November 5, 2013, defendants replied [D.E. 53]. Defendants' motion to strike portions of plaintiffs' response in opposition to summary judgment is also pending [D.E. 54]. As explained below, the court denies defendants' motion to strike and grants defendants' motion for summary judgment.



Brenda Newsome was a teacher at Selma Middle School ("SMS") in Johnston County, North Carolina, from 2004 to 2009. Newsome taught a "Life Skills" class for special-education students. When the student-population projections for the 2008-2009 school year showed a reduced need for Life Skills classes at SMS, the Board decided to consolidate two of SMS's Life Skills classes into one, which Newsome would teach. See Bisesi Aff. [D.E. 40-10] ¶ 5; Andrews Aff. [D.E. 40-11] ¶¶ 6-7; Moore Dep. [D.E. 40-4, 51-14] 100-01.

Newsome became aware of the Board's decision towards the end of the 2007-2008 school year and disagreed with it. She was concerned that the consolidation would cause her to have more students in her class than she could competently manage, and that she would have to teach Language Arts, a subject she had not previously taught. See Newsome Dep. [D.E. 40-1, 40-2, 51-13] 25, 109-10; Little Dep. [D.E. 40-6] 45. Newsome first expressed those concerns on May 12, 2008, in an email to the other members of the SMS special-education department and to her principal, defendant Jennifer Moore. See id. 109-10, 112, Ex. 15. Newsome also orally expressed her concerns to the other special-education teachers and to members of the SMS administration. See id. 116, 122.

In addition, Newsome sent a letter to her students' parents, dated May 27, 2008, informing them of the pending consolidation of SMS's Life Skills classes and encouraging the parents to "be [their] child's advocate" and to contact the appropriate SMS and Johnston County Schools officials to discuss the consolidation. See id., Ex. 20. Newsome alone drafted and sent the letter, but made it appear to be from the SMS special-education teachers as a group. Newsome claims she attempted to send a draft of the letter to the other special-education teachers asking if they objected to anything in it, but the other teachers never got the draft and Newsome did not discuss the letter with them before sending it. See id. 144, 146. After the other teachers expressed dismay that Newsome had used their names without permission, Moore met with Newsome and explained to her that she should not have done so. See Moore Dep. 86-88.

During the summer of 2008 and into the beginning of the school year, Newsome investigated whether her consolidated Life Skills class would be larger than allowed under applicable North Carolina Department of Public Instruction ("DPI") guidelines. See Newsome Dep. 124-26, 130-32. The guidelines require a higher staff-to-student ratio for classes containing students with "intensive needs" than for classes containing students who can manage with "sustained support." See [D.E. 51-27]. The Board's special-education administrators determined that Newsome's class was a "sustained support" class. See Bisesi Aff. ¶ 11; Andrews Aff. ¶ 9. Newsome questioned that determination, and even after several discussions with the administration, remained unconvinced that her class was a "sustained support" class rather than an "intensive needs" class. She encouraged her students' parents to independently investigate the matter. See Newsome Dep. 133-34, 202; Bisesi Aff., Ex. B.

Once the 2008-2009 school year began, Newsome struggled to manage her class, as she had predicted she would. In response, Moore offered support to Newsome in several ways. In particular, Moore accommodated Newsome's request for more planning time and for other schedule adjustments, see Newsome Dep. 63-64, 159-61; Moore Dep. 114, and permitted Jenny Wiggins, the mother of plaintiffJ.W. and a teaching assistant at SMS, to act as an occasional teaching assistant for Newsome. See Newsome Dep. 41-42, 66-67; Wiggins Dep. [D.E. 40-3, 51-12] 17, 19-20, 22-23; Moore Dep. 114. Newsome also received help with the day-to-day management of her class from Bill Wood, another teaching assistant at SMS, and from the custodial staff. See Newsome Dep. 64-67, 158; Wiggins Dep. 70-71. Furthermore, a curriculum specialist, an autism specialist, and a behavioral specialist visited Newsome's classroom and offered suggestions for improvement. See Newsome Dep. 148, 152; Thompson Aff. [D.E. 40-14] ¶ 3. Moore's impression was that Newsome received more support than even a typical beginning teacher. See Moore Dep. 115.

Despite this support, Newsome struggled. Michael Thompson, a behavioral specialist who visited Newsome's classroom two to three times per week, observed that Newsome relied too heavily on her teaching assistant, left her students with too much unstructured time, did not give adequately individualized instruction for students, and failed to implement any suggestions made to her about how to improve her classroom. See Thompson Aff. ¶¶ 5-9. Thompson expressed those concerns to Moore in an email dated January 8, 2009. See id., Ex. A. Likewise, Charlene Butala, the autism specialist who visited Newsome's classroom, told Moore that Newsome was not implementing any of the strategies Butala had suggested. See Moore Aff. [D.E. 40-17] ¶ 7, Ex. E. Similarly, Mary Ann Yansom, another specialist who had visited Newsome and offered suggestions, told Moore that Newsome was not implementing Yansom's suggestions. See id. ¶ 11, ex. H.

Throughout the 2008-2009 school year, Moore expressed concerns to Newsome about her performance. On October 21, 2008, after a meeting, Moore issued a letter officially reprimanding Newsome for sending the letter to parents encouraging advocacy against the consolidation of SMS's Life Skills classes and using other teachers' names without permission, for continuing to suggest to parents that the SMS Life Skills class was larger than allowed by DPI even after administration had explained to her that the class size complied with DPI guidelines, and for often allowing her teaching assistant to be the primary teacher. See Newsome Dep., Ex. 27; Moore Aff. ¶ 4, Ex. A. Moore instructed Newsome, going forward, to direct questions about school-administration decisions to the school administration rather than involving parents, to accept the administration's determination that her class size was appropriate, and not to rely on her teaching assistant as a primary teacher. See Newsome Dep., Ex. 27.

On January 30, 2009, Moore issued a second letter, warning Newsome that she was "at risk of receiving a below standard' rating" on the behavior-management and instructional-presentation portions of her year-end evaluation, unless she showed sustained improvement. See Newsome Dep., Ex. 28; Moore Aff. ¶ 9, Ex. F; Moore Dep. 83. In previous years, Newsome's evaluations had been at or above standard in all categories and often included praise from Moore. See [D.E. 51-20] 6-31. During the 2008-2009 school year, Newsome's evaluations were decidedly worse. She was rated as "at standard" in all categories, whereas before she had often been rated as "above standard." See id. 1-5. Moreover, Moore's comments suggested that Newsome's performance had been only minimally at standard and needed significant improvement. See id.

After the 2008-2009 school year, Newsome was eligible to be considered by the Board for "career status, " a form of tenure. The Board's policy at the time was that "at standard" performance was not enough to guarantee a grant of career status, nor would it preclude a grant of career status. See Little Dep. 26-28. On May 27, 2009, Moore informed Newsome that she would recommend that the Board not renew Newsome's contract or grant her career status because Newsome had not shown sustained improvement in her teaching and classroom management. See Moore Aff., Ex. I; Moore Dep. 129-30. According to Moore, "[t]he determination for a non-renewal had nothing to do with [Newsome's] advocating, " but rather was based on Newsome's failure to show sustained improvement in her "instructional presentation and classroom management." Moore Dep. 134-37; see Moore Aff. ¶ 6.

At that point, Newsome obtained a representative from the North Carolina Association of Educators. On June 1, 2009, Newsome and her representative met for three hours with Robin Little, the Director of Human Resources for Johnston County Schools. See Newsome Dep. 220-22; Little Aff. [D.E. 40-16] ¶ 8, Ex. B. Shortly thereafter, Newsome decided to resign rather than allow the Board to decide not to renew her contract, hoping that by doing so she would be in a better position to find a new teaching job. See Newsome Dep. 225; Little Aff.¶ 9. On June 4, 2009, Newsome submitted a letter of resignation. See Newsome Dep. 224-25, Ex. 30; Little Aff. ¶ 10. On June 5, 2009, Croom accepted Newsome's resignation. See Little Aff. ¶ 10, Ex. D. After resigning, Newsome regretted doing so. On July 6, 2009, Newsome and her representative met with Croom and asked him to allow Newsome to rescind her resignation. See Newsome Dep. 227-29, Ex. 32. Croom declined. See id., Ex. 32.


J.W. was a student in Newsome's Life Skills class during the 2008-2009 school year who allegedly was the victim of a sexual assault at SMS on April 2, 2009. That day, J.W. left his art class to go to the bathroom. Another student, S.L., also went to the bathroom, purportedly to help. J.W. See Welch Aff. [D.E. 40-12] ¶ 7. S.L. was a non-special-education student who occasionally acted as a student mentor to students in the Life Skills class. See Wiggins Dep. 92-93; Welch Aff. ¶ 6; Finiello Aff. [D.E. 40-13] ¶ 5. While J.W. was gone to the bathroom, Wiggins, his mother, stopped by the art classroom and noticed that J.W. was missing. Wiggins Dep. 97. When the art teacher, Dorothy Finiello, told Wiggins that J.W. had gone to the bathroom, Wiggins went to look for J.W. Id . 99. After checking one bathroom unsuccessfully, Wiggins tried another, and at the second bathroom she saw J.W. and S.L. exiting the bathroom together, with S.L. pushing J.W. from behind. Id . 104. J.W. appeared pale and stunned to Wiggins, and his shirt was "wadded up like... a ball in the back of his pants." Id . 106. Wiggins was troubled, but did not discuss the matter that day with Moore or any other school administrator. Id . 113-14, 122. Wiggins did inform Newsome of what she had seen, but, like Wiggins, Newsome did not report anything to Moore or any other school administrator. See Newsome Dep. 181.

On April 6, 2009, J.W. told Wiggins that S.L. had "touched his privates" while they were in the bathroom together. Wiggins Dep. 126. The next day, Wiggins emailed Moore to report what J.W. had said and what Wiggins had seen on April 2. See Wiggins Dep., 131-32, Ex. 4; Moore Aff. ¶ 16, Ex. J; Moore Dep. 11. At that point, Moore initiated an investigation. She talked to Wiggins, who asked that S.L. no longer be permitted to interact with the Life Skills class. See Wiggins Dep. 139-41; Moore Aff. ¶ 17. She interviewed Finiello and Dorothy Welch, the two faculty members who had been in the art class when J.W. left to go to the bathroom. See Moore Aff. ¶ 18; Moore Dep. 11-12. She interviewed Newsome about whether Newsome thought anything had happened to J.W. See Newsome Dep. 189. She reviewed a surveillance video of the bathroom entrance, which ...

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