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Johnson v. Pitt County Board of Education

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

May 25, 2017

JOHNNIE IVEY JOHNSON, Plaintiff,
v.
PITT COUNTY BOARD OF EDUCATION, MONICA JACOBSON, PAUL BRINEY, ERICA COOKE, KISHLYN JONES, DR. ETHAN LENKER, and GLEN BUCK, Defendants.

          ORDER

          JAMES C. DEVER III Chief United States District Judge.

         On August 19, 2016, Johnnie Ivey Johnson ("Johnson" or "plaintiff'), proceeding pro se, sued the Pitt County Board of Education, Monica Jacobson, Paul Briney, Erica Cooke, Kishlyn Jones, Dr. Ethan Lenker, and Glen Buck (collectively, "defendants), alleging abridgment of his First Amendment right to free speech, deprivation of procedural due process under the Fourteenth Amendment, race discrimination and unlawful retaliation under Title VJJ of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17 ("Title VJJ"), and age discrimination under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621 to 634 ("ADEA"). [D.E. 5, 5-1]. On October 17, 2016, defendants moved to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1), (b)(2), and (b)(6) [D.E. 20] and filed a supporting memorandum [D.E. 21 ]. On November 10, 2016, Johnson responded in opposition [D .E. 23]. On November 22, 2016, defendants replied [D.E. 24]. On December 8, 2016, Johnson filed a surreply [D.E. 27]. As explained below, the court grants defendants' motion to dismiss.

         I.

         Johnson worked as a substitute teacher in Eastern North Carolina, including in Pitt County. See Compl. [D.E. 5] 2. In 2012, Johnson filed an EEOC complaint against the Pitt County Board of Education and Pitt County Schools' Director of Personnel Glen Buck ("Buck"). See Johnson v. Pitt Cty. Sch.. No. 4:12-CV-191-BR, [D.E. 35] 16-17 (E.D. N.C. Nov. 12, 2013) (unpublished).

         On August 27, 2015, Johnson was three days into a 16-day substitute teaching assignment at Farmville Middle School. [D.E. 5-1] 5. Johnson ran an errand and arrived late for work. Id. at 5-6. Because his student-free planning period was scheduled for first period, Johnson believed he did not have to notify the school that he would be late. Id. at 6. According to Johnson, substitutes viewed planning periods as "free time so-to-speak" because the full-time teachers had typically already performed the tasks usually undertaken during planning period. Id. When Johnson arrived roughly five minutes after first period had begun, Principal Paul Briney ("Briney") notified Johnson that Briney had already requested a replacement for Johnson. Id. Another substitute teacher filled in for Johnson the next day as well, but Johnson completed the remainder of the 16-day assignment. Id.

         On September 17, 2015, Briney sent Buck an evaluation of Johnson that documented the August 27, 2015, incident of tardiness, as well as six other instances, rated Johnson's performance as "below standard" in numerous categories, and noted several concerns from students regarding Johnson's behavior. Id. at 6-7. In a letter dated September 21, 2015, Buck notified Johnson of a request from Briney that Johnson not return to substitute at Farmville Middle School. Id. Johnson never received the letter because it was mailed to the wrong address See id.

         Briney did not discuss his concerns with Johnson before requesting that Johnson not return to Farmville Middle School. See Id. at 7-8. Additionally, according to Johnson, the evaluation was "unfounded on its face" because it is implausible that he could accrue so many infractions without being immediately fired. Id. Johnson believed that Buck's letter notifying Johnson of Briney's request constituted Buck "approving" the request, an action Johnson alleges was in retaliation for Johnson having sued Buck in 2012. Id. at 8.

         On October 21, 2015, Johnson was on a different assignment, filling in during an absent teacher's World History class at J.H. Rose High School. Compl. at 2. The students were "studying the five major religions around the world, in which Christmas was included as an aspect of Christianity." [D.E. 5-1] at 1. During third period, a student asked Johnson why he did not celebrate Christmas. See id.; [D.E. 5-2] 1. Johnson stated that he does not celebrate Christmas because it "derive[s] from non-Christian, or rather pagan traditions." Compl. at 2; [D.E. 5-1] 1. Johnson classifies his statements as "quite relevant to the subject matter at hand as it was of historical facts." [D.E. 5-1] 3; see Id. at 1.

         The next day, J.H. Rose's principal Monica Jacobson ("Jacobson") asked Johnson to come to the school to discuss an assignment he had given during third period the previous day. Compl. at 2. During the conference, Jacobson said that Johnson's statements to the class concerning Christmas had been inappropriate. Id. Jacobson also told Johnson that she would request that the "central office" remove Johnson from the school's list of available substitute teachers. [D.E. 5-1] 1. Johnson told Jacobson not to cancel his assignment because he had not been "promoting or opposing any religion." Id. Before making this request, and "minutes after" the conference, Jacobson cancelled Johnson's substitution assignment scheduled for the following day. Id. Because Jacobson never officially lodged a request to remove Johnson from the availability list, over the ensuing weeks Johnson continued to be asked to teach at J.H. Rose. Id. Jacobson personally cancelled Johnson's assignments on six occasions. Id.

         On an unstated date, Jacobson told Johnson that her decision to cancel Johnson's assignments was motivated in part by his habit of playing music in class, although two other substitutes-both white-played music too but were "never reprimanded in the least for doing so." Id. at 4-5. In another incident on an unstated date, another substitute-15 years younger than Johnson-was the subject of an investigation by Jacobson for remarks the substitute allegedly made in class. Id. Further investigation rebutted the accusations, and Jacobson reinstated the substitute. Id.

         On December 8, 2015, Johnson filed a formal grievance with Director of Personnel Buck. Id. at 2; [D.E. 5-2]. In his grievance, Johnson asserted that his statements about Christmas were "within the perimeters [sic] of the lesson plan on the history of various religions around the world that included the celebration of Christmas." [D.E. 5-2] 1. Buck assigned Kishlyn Jones, a Personnel Coordinator, to investigate Johnson's complaint. [D.E. 5-1] 2. Jones concluded that Jacobson "never submitted a request to block Mr. Johnson's name from subbing at the school, but had a valid reason for doing so." Id.

         In January 2016, Johnson reviewed his personnel file and discovered the September 21, 2015 letter containing Briney's request that Johnson not return to teach at Farmville Middle School. Id. at 6-7. Johnson asked Buck to send him a copy of the evaluation on which the request was based, which Johnson eventually obtained. Id.

         On February 3, 2016, Johnson filed an EEOC charge, which he supplemented the next day with additional information. [D.E. 20-2]. Johnson alleged age discrimination, religious discrimination, and retaliation. IcLatl. Although not a model of clarity, Johnson's EEOC charge alleged that Jacobson cancelled Johnson's assignments in retaliation for Johnson filing an EEOC charge against Pitt County Schools in 2012; that Briney's request that Johnson not return to Farmville Middle School was made in retaliation against Johnson for filing the 2012 EEOC charge; that Buck "granted" Briney's request in retaliation for Johnson filing the 2012 EEOC charge; that Jacobson discriminated against Johnson for being a Jehovah's Witness who does not celebrate Christmas; and that Jacobson discriminated against Johnson based on his age by investigating complaints against him differently, and arriving at a different final resolution, than she had done when resolving complaints against another substitute teacher. [D.E. 20-2]. Johnson did not assert race discrimination in the EEOC charge, but Johnson's EEOC charge fleetingly refers to Jacobson discriminating against him because he his black by replacing Him with white substitutes "3 or 4" of the five times she had cancelled his assignments. Id. at 3. On May 3, 2016, Johnson received his right-to-sue notice from the EEOC. [D.E. 5-7].

         On May 9, 2016, Jacobson again cancelled one of Johnson's scheduled assignments. Id. Jacobson's secretary, Erica Cooke, cancelled the assignment in the scheduling system and left Johnson a voicemail stating that Jacobson did not want him substituting at J.H. Rose. Id. According to Johnson, this cancellation violated Johnson's First Amendment right to free speech, his Fourteenth Amendment right to procedural due process, and was in retaliation for Johnson's constitutionally protected activity. Id. He also alleges that Jacobson canceled this assignment in retaliation for Johnson's EEOC grievance filed against Buck in 2012. Id. According to Johnson, Buck and Jones persuaded Jacobson to continue cancelling Johnson's assignments, or failed to dissuade her from doing so, and ignored Johnson's grievance. Id.

         On July 28, 2016, Johnson sued defendants for violating his First Amendment right to free speech, violating his Fourteenth Amendment right to procedural due process, age discrimination, race discrimination, and retaliation. See [D.E. 5-1] 9. Johnson names defendants Jacobson, Briney, Buck, Jones, and Cooke in their individual capacities and seeks $75, 000 in compensatory damages and $75, 000 in punitive damages. Compl. at 2-3. He names Dr. Ethan Lenker, Superintendent for i Pitt County Schools, in his official capacity to request an injunction requiring principals to confer with substitutes regarding all performance concerns before requesting that substitutes be removed from the list of available substitutes. [D.E. 5-1] 9. Defendants have moved to dismiss Johnson's claims under Federal Rules of Civil Procedure 12(b)(1), (b)(2), and (b)(6). [D.E. 20].

         II.

         Defendants move to dismiss Johnson's Title VII race-discrimination claims for lack of subject-matter jurisdiction. A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1)tests subject-matter jurisdiction, which is "the court's statutory or constitutional power to adjudicate the case." Steel Co. v. Citizens for a Better Env't 523 U.S. 83, 89 (1998) (emphasis omitted); see Holloway v. Pagan River Dockside Seafood. Inc., 669 F.3d 448, 453 (4th Cir. 2012). "[T]he party invoking federal jurisdiction bears the burden of establishing its existence." Steel Co.. 523 U.S. at 104; see, e.g., Evans v. B.F. Perkins Co.. 166 F.3d 642, 647 (4th Cir. 1999). In considering a motion to dismiss for lack of subject-matter jurisdiction, the court may consider evidence outside the pleadings without converting the motion into one for summary judgment. See, e.g., Richmond. Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).

         Title VII prohibits employers from, among other things, "discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race." 42 U.S.C. § 2000e-2(a)(1). Before filing suit under Title VII in federal court, a plaintiff must exhaust his administrative remedies by filing a charge of discrimination with the EEOC. See, e.g.. Hentosh v. Old Dominion Univ., 767 F.3d 413, 416 (4th Cir. 2014). "Even after a plaintiff has exhausted his administrative remedies, the administrative framework plays a substantial role in focusing the formal litigation it precedes." Chacko v. Patuxent Inst.. 429 F.3d 505, 509 (4th Cir. 2005). The EEOC charge's content determines the scope of a plaintiffs right to maintain a Title VII claim in court. Id; Hentosh. 767 F.3d at 416; Webb v. N.C. Dep't of Crime Control & Pub. Safety. Alcohol Law Enf t Div.. 658 F.Supp.2d 700, 707-08 (E.D. N.C. 2009). This court lacks jurisdiction over Title VII claims that exceed the scope of the EEOC charge. See, e.g., Balas v. Huntington Ingalls Indus.. Inc.. 711 F.3d 401.407-09 (4th Cir. 2013): Jones v. Calvert Grp.. Ltd.. 551 F.3d 297, 300 (4th Cir. 2009); Chacko. 429 F.3d at 509-10.

         "Only those discrimination claims stated in the initial charge, those reasonably related to the' original complaint, and those developed by reasonable investigation of the original complaint may be maintained in a subsequent Title VII lawsuit." Jones, 551 F.3d at 300 (quotation omitted); see Sydnor v. Fairfax Cty., Va.. 681 F.3d 591, 594 (4th Cir. 2012); Chacko. 429 F.3dat 509-10. "Thus, factual allegations made in formal litigation must correspond to those set forth in the administrative charge." Bonds v. Leavitt. 629 F.3d 369, 379 (4th Cir. 2011) (quotation omitted). For example, "a claim in formal litigation will generally be barred if the EEOC charge alleges discrimination on one basis, such as race, and the formal litigation claim alleges discrimination on a separate basis, such as sex." Jones. 551 F.3d at 300; see Chacko. 429 F.3d at 509-10. But because laypersons often initiate the EEOC administrative process, courts construe EEOC charges liberally. See Sydnor. 681 F.3d at 594; Chacko. 429 F.3d at 509.

         Johnson's race-discrimination claims were not stated in his EEOC charge, are not reasonably related to the claims stated in his EEOC charge, and could not have been developed by reasonable investigation of his EEOC charge. Johnson's EEOC charge did not formally allege race discrimination. Johnson checked only the "retaliation, " "age, " and "religion" boxes on his EEOC charge and left unchecked the box for "race." See [D.E. 20-2]. Failure to identify "race" as a basis for the EEOC supports concluding that Johnson failed to exhaust his administrative remedies concerning that claim. See Jones. 551 F.3d at 301; Chacko, 429 F.3d at 511-13; Miles v. Dell. Inc., 429 F.3d 480, 492 (4th Cir. 2005); Sloop v. Mem'l Mission Hosp., Inc., 198 F.3d 147, 149 (4th Cir. 1999).

         Moreover, the factual allegations supporting Johnson's race-discrimination claim do not appear in his EEOC charge and are not reasonably related to any allegations made in the charge. In his complaint, Johnson alleges (1) that Briney discriminated against him on the basis of race by including Johnson's tardiness in a negative evaluation, even though white substitutes who reported to work at the same time he did were not reprimanded, and (2) that Jacobson said that she had removed Johnson from the school's availability roles partly because Johnson played music in class, even though two white substitutes played music but were not reprimanded. See [D.E. 5-1] 4-5, 9. The EEOC charge, however, alleges no race discrimination on Briney's part and does not allege that Jacobson discriminated against Johnson based on his race by removing Johnson from the availability roles for playing music. See [D.E. 20-2]. Rather, in the EEOC charge Johnson alleged that Jacobson discriminated against Johnson on the basis of race by cancelling his assignments only to replace him "3 or 4" times with white substitutes. See [D.E. 20-2]. Thus, Johnson's claims in his complaint do not "correspond to those set forth in the administrative charge." Bonds. 629 F.3d at 379 (quotation omitted). Accordingly, Johnson failed to exhaust his administrative remedies for his race-discrimination claims, ...


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