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RM v. Charlotte-Mecklenburg County Board of Education

United States District Court, W.D. North Carolina, Charlotte Division

May 15, 2017

RM, by and through his parents, MM and DM, Plaintiff,
v.
CHARLOTTE-MECKLENBURG COUNTY BOARD OF EDUCATION, ANN CLARK, Individually and in her Official Capacity, ERNEST SAXTON, Individually and in his Official Capacity, MARGIE BRICE, Individually and in her Official Capacity, Defendant.

          ORDER

          GRAHAM C. MULLEN, UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on Defendants' Motion to Dismiss (Doc. No. 10), Plaintiffs' Memorandum in Opposition of Defendants' Motion to Dismiss (Doc. No. 13), and Defendants' Reply to the Response to the Motion to Dismiss (Doc. No. 14). The parties' motions are ripe for disposition.

         I. Background

         Plaintiff RM is an eleven-year-old fifth grader. (Doc. No. 1 at 3). At the time of alleged conduct RM attended Highland Creek Elementary School. Id. at 4. The Defendants have adopted the Plaintiffs' factual allegations alleged in Plaintiffs' Complaint for purposes of their Motion to Dismiss. (Doc. No. 11 at 2). These factual allegations are detailed below.

         On September 4, 2014 RM told Student 1 that he was deathly allergic to cashews and pistachios to which Student 1 responded that RM should “watch out” because he was going to bring nuts to school the next day. (Doc. No. 1 at 5). RM's mother, MM, called the school about the incident and emailed Principal Saxton on September 7, 2014 requesting a meeting about the incident. Id. at 6.

         The next day, the school held a meeting with RM, his parents, Principal Saxton, the assistant principal, school counselor Stacey Kata, the school nurse, and several other district staff. Id. At that meeting RM and his parents were told that Student 1's comments would be treated as a 26c violation and handled accordingly. Id. In addition, following this meeting RM met with the school counselor and the District prepared an emergency plan for RM detailing the signs of allergic reaction and the appropriate medical response. Id.

         Throughout September RM and MM reported other incidents to the school involving Student 1 as well as other students. Id. In response, the school counselor came up with a plan for RM to place a note in a box to meet with her when an incident arose and the school increased supervision of the students. Id.

         Despite these efforts, RM continued to be bullied. Id. Consequently, Plaintiffs had another meeting with Principal Saxton, guidance counselor Stacey Kata and 4th grade teacher Mrs. Davis on September 25, 2015. Id. At this meeting, Plaintiffs expressed that they believed more significant action needed to be taken to stop the bullying. Id. at 7.

         The next day, Principal Saxton brought RM into his office and told RM that RM was accountable for the bullying and that the bullying situation would improve if RM was nicer to Student 1. Id. RM told Principal Saxton of bullying incident that occurred that day in the lunchroom. Id. Principal Saxton and RM watched the surveillance tape from the cafeteria, which corroborated what RM had said. Then, Principal Saxton called Student 1 into his office and told both students that he was “hitting the reset button” and that they were to start over. Id. at 8.

         On September 28, 2014 MM emailed Principal Saxton discussing the latest incident and her dissatisfaction with the lack of results of the previous meeting. Id. Then on September 29, 2014, MM hand delivered a note to Heath Morrison and sent a certified copy to the entire school board that explained the bullying RM had been subjected to over the month. Id. at 9. In response, Community Superintendent Dr. Hayes contacted MM the following day. Id. Dr. Hayes told MM that Superintendent Ann Clark called him expressing concern that action was taken to ensure RM's safety. (Id.). MM requested that Student 1 be removed from RM's class. Id. Dr. Hayes said that was not possible but offered to have RM change schools. Id. MM told Dr. Hayes that she had consulted an attorney who said that the District did have the option of removing the child and offered to get the attorney involved. Id. at 10.

         On October 2, 2014 a meeting was held between the Plaintiffs, VP Brice, and Dr. Hayes. (Id. In it Dr. Hayes explained the behavioral plan that they would be implementing and told the Plaintiffs that it was similar to a restraining order. Id. Dr. Hayes also acknowledged “that things have not gone the way the needed to up until this point, ” including that Student 1 was not given a 26c in accordance with the Code of Student Conduct as had been discussed at the September 8, 2014 meeting. Id.

         MM also asked if RM should have a 504 plan and due to that request the District created a detailed plan that stated that Student 1 would be removed from RM's class to be effective that day. Id. The plan ensured RM and Student 1 did not have lunch together and did not interact during recess. Furthermore, the plan detailed a process for RM to report when he felt threatened through an agreed upon hand gesture to designated school staff or go to a safe place in the media center. Id. at 11. This was the first discipline taken against Student 1 for the bullying of RM. Id.

         However, this plan did not end the bullying situation. The day the plan was implemented, RM was asked by Student 1's friends why Student 1 had been moved and at recess that day a friend of Student 1 would not allow RM to participate in the assigned activity at recess. Id. Over the next three months other bullying incidents occurred including Student 1 repeatedly joining activities RM was participating in during recess. Id. at 11-13.

         On October 8, 2014, Student 1 was suspended for telling other students to continue to bully RM. Id. at 11. That day VP Brice again tried to persuade the Plaintiffs to place RM and their daughter into another school. Id. at 12.

         On November 4 and 5, 2014, MM sent emails to Dr. Hayes about Student 1's continued bullying of RM and these emails noted that a classmate had assaulted RM's sibling KM. Id. There was no disciplinary consequences for this assault and KM's teacher told the Plaintiffs that she could not discipline the student due to the direction of Principal Saxton. Id. MM then emailed Superintended Clark on November 5 describing these latest incidents and Dr. Hayes replied that the only option left was to transfer RM and KM to another school. Id.

         On or about November 25, 2014, Dr. Hayes, Stephanie McKineey, and the Plaintiffs held another meeting and Dr. Hayes' proposed again to move RM and KM to a different school; Plaintiffs again declined. Id. at 13 Then, on December 18, 2014, Plaintiffs met with Principal Saxton and Principal Saxton agreed that RM's interactions with Student 1 needed to be eliminated. Id.

         In January 2015 the classes of RM and Student 1 began combining regularly in the same room. (Id. at 14). RM told MM that this was occurring April 2, 2015. Id. In April 2015, RM was diagnosed with Post Traumatic Stress Disorder. Id. at 15. On May 12, 2015 MM withdrew RM from school. Id.

         In the Complaint Plaintiffs filed on July 5, 2016, the Plaintiffs allege eight causes of action. They are: (1) Intentional Infliction of Emotional Distress; (2) Negligent Infliction of Emotional Distress; (3) Negligent Supervision and Training; (4) Federal Constitutional Claims; (5) State Constitutional Claims; (6) violation of the Americans with Disabilities Act; (7) violation of Section 504 of the Rehabilitation Act of 1973; and (8) violation of North Carolina's Persons with Disabilities Protection Act.

         II. Legal Standard

         While, the Defendants argue numerous reasons for the dismissal of all the Plaintiffs' claims, many of their arguments invoke Rule 12(b)(6). Thus, the standard for evaluating a Rule 12(b)(6) motion is detailed here.

         As a general rule, pleadings must entail “only ‘a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). This standard instructs that, when faced with a Rule 12(b)(6) 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 Labs, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). Thus, a “complaint may proceed even if it strikes a savvy judge that actual proof of [the facts alleged] is improbable, and ‘that a recovery is very remote and unlikely.'” Twombly, 550 U.S. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). However, these broad requirements still “demand[] more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint must state a claim that “raise[s] a right to relief above the speculative level” and must contain more than “naked assertion[s] . . . without some further factual enhancement.” Twombly, 550 U.S. at 555-57.

         III. Discussion

         a. PLAINTIFFS' IIED, NIED & NEGLIGENT SUPERVISION AND TRAINING CLAIMS AGAINST DEFENDANT BOARD

         North Carolina boards of education are entitled to governmental immunity from lawsuits that allege tortious or negligent conduct unless the Board waived governmental immunity. N.C. Gen. Stat. § 115C-42. Immunity is only waived “to the extent that the board of education is indemnified by insurance for such negligence of tort.” Id.; see Magana v. Charlotte-Mecklenburg Bd. of Educ., 183 N.C.App. 146, 148, 645 S.E.2d 91, 92-93 (2007) (“With respect to immunity, a county board of education is a governmental agency, and is therefore not liable in a tort or negligence action except to the extent that it has waived its governmental immunity pursuant to statutory authority.”).

         At all relevant times during the Complaint, the Board did not carry any liability insurance for personal injury claims totaling less than one million dollars. (Aff. of Daniel Pliszka, ¶ 5-7). However, the Board does have two excess policies to cover certain liabilities above one million dollars. (Id. at ¶ 7). The first is a general liability policy purchased from Genesis Insurance Company (“Genesis”). (Id. at ¶ 8). The Genesis policy states that it "is not intended by the Insured to waive its governmental immunity as allowed by North Carolina General Statutes Sec. 115C-42 . . . this policy provides coverage only for occurrences or wrongful acts for which the defense of governmental immunity is clearly not applicable." (Id. ¶ 10, Ex. A, p. 18, Endorsement Number 9). The policy provides that Genesis "agree[s] to indemnify the Insured for ultimate net loss in excess of the retained limit which the Insured becomes legally obligated to pay...." and "[o]ur indemnification obligation shall not arise until the Insured itself has paid in full the entire amount of its retained limit". (Id., Ex. A, p. 31). The Board's retained limit is one million dollars and after payment of the retained limit, the Genesis policy covers additional liability up to five million dollars. (Id., Ex. A, p. 3).

         The second is an excess policy purchased from Great American Insurance (“Great American”). (Id. at ¶ 9). The Great American policy provides excess coverage up to fifteen million dollars. However, similar to the Genesis policy, the Great American policy is only triggered "unless and until the Insured or the Insured's 'underlying insurance' is obligated to pay the full amount of the Underlying Limits of Insurance." (Id. ¶¶ 11-12, Ex. B, p. 22). The Great American policy defines "Underlying Insurance" as the Genesis policy. (Id., Ex. B, p. 2, 4).

         So, the Board has no liability insurance that provides coverage for tort claims resulting in less than one million dollars of damages. The Board's excess coverage is only triggered for claims in excess of one million dollars and only for claims in which the Board has paid the retention amount. In other words, the excess policies never provide coverage if the Board is otherwise immune from the claim.

         The North Carolina Court of Appeals has repeatedly upheld, through the process outlined above, that Defendant Board has not waived its governmental immunity. See Doe v. Charlotte-Mecklenburg Bd. of Educ., 222 N.C.App. 359, 362, 731 S.E.2d 245, 247 (2012) (the appellate court noting that the trial court granted the Board's motion to dismiss for the alleged tort claims because the Board “had not waived immunity by the purchase of liability insurance.”); Irving v. Charlotte-Mecklenburg Bd. Of Educ., 2013 WL 5508370 ( N.C.App. October 1, 2013) (citation omitted) (“because the school board had ...


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