United States District Court, E.D. North Carolina, Eastern Division
C. DEVER III Chief United States District Judge.
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.
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(E.D. N.C. Nov. 12, 2013) (unpublished).
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.
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
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.
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.
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.
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
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.
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.
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].
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.
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].
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).
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.
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.
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).
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, ...