United States District Court, W.D. North Carolina, Charlotte Division
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Motions to Dismiss
filed by Defendant Union County Board of Education
(“UCBOE” or “the Board”), (Doc. No.
19), and Defendant Janice Burns (“Principal
Burns” or “Ms. Burns”) (Doc. No. 21). The
Board and Ms. Burns (collectively, “Defendants”)
move to dismiss pursuant to Federal Rules of Civil Procedure
12(b)(1), (2) and (6) for lack of subject-matter
jurisdiction, lack of personal jurisdiction, and for failure
to state a claim upon which relief can be granted. For the
reasons that follow, the motions are GRANTED in part and
DENIED in part.
is a former student at Sun Valley High School
(“SVHS”), which is operated by the
Board. (Amd. Compl. ¶¶ 3, 12).
Plaintiff alleges she was sexually harassed by a male student
at SVHS (“Offender”) over the course of her
freshman, sophomore, and junior years. (Amd. Compl.
¶¶ 16-17). Plaintiff enrolled at SVHS in 2009.
(Amd. Compl. ¶12). Plaintiff claims during her freshman
year, she was friends with the Offender. (Amd. Compl. ¶
18). However, Plaintiff alleges she terminated the friendship
following a dispute. (Amd. Compl. ¶ 20). In November
2009, the Offender allegedly began criticizing
Plaintiff's other relationships and following Plaintiff
around campus. (Amd. Compl. ¶ 19). Plaintiff's
mother allegedly brought the behavior to the attention of
Assistant Principal Pusser and Student Resource Officer (SRO) A.J.
Wallace in November 2009. (Amd. Compl. ¶ 23). The SRO
confronted the Offender and advised him to cease contact with
alleges that in March 2010, the “offender's
harassment of the Plaintiff escalated” and he made
“inappropriate and sexually explicit remarks to the
Plaintiff” on an almost daily basis. (Amd. Compl.
¶ 24). Plaintiff alleges SRO Wallace encouraged her to
draw attention to such harassment by creating a scene. (Amd.
Compl. ¶ 25). Subsequently, when the Offender allegedly
made unwanted sexual comments to her on the bus, she
responded by exclaiming “What the fk?”
Id. For this, Plaintiff allegedly received an
in-school suspension for her conduct. (Amd. Compl.
¶¶ 25, 26). Plaintiff alleges, soon after the
incident on the bus, her mother and SRO Wallace spoke to
Assistant Principal Pusser about the harassment. (Amd. Compl.
¶ 26). Assistant Principal Pusser was made aware
Plaintiff had intended to bring attention to the abuse by
uttering profanity. (Amd. Compl. ¶ 27).
this meeting, SRO Wallace allegedly spoke with the Offender
and warned him to refrain from contacting Plaintiff. (Amd.
Compl. ¶ 29). On May 2010, Plaintiff's mother
allegedly spoke with SRO Wallace again about the
Offender's continuing behavior. (Amd. Compl. ¶ 30).
At this point, Wallace advised Plaintiff's mother to seek
a no-contact order. Id. According to Plaintiff's
Amended Complaint, “Plaintiff's mother sought a No
Contact Order from a Union County Magistrate.” (Amd.
Compl. ¶ 31).
August 2010, the start of Plaintiff's sophomore year,
Plaintiff alleges her mother met with SRO Wallace, Assistant
Principal Pusser, and Mr. Reynolds (the band teacher) to
present her concerns to them. (Amd. Compl. ¶ 32). At
this point, the Offender had allegedly joined chorus and
drama classes, providing him with additional opportunities to
be in contact with Plaintiff. (Amd. Compl. ¶ 32).
Outside of the classroom, Plaintiff claims the Offender
attempted to contact her via Facebook. (Amd. Compl. ¶
33). Plaintiff alleges copies of these Facebook messages,
dated September 16, 2011, were provided to Assistant
Principal Pusser. Id. Plaintiff further alleges
these posts showed the Offender had “pressured
Plaintiff to perform sex acts and to smoke pot.” (Amd.
Compl. ¶ 34). Upon being “made aware of these
posts, ” Assistant Principal Pusser allegedly claimed
there was nothing we can do given the harassment was
“occurring in the community.” (Amd. Compl. ¶
35). Assistant Principal Pusser is alleged to have committed
to monitoring all activity on the school campus, while also
reiterating there was nothing he “would or could
do” with regards to cyber harassment. Id.
Plaintiff also alleges the Offender's bike was discovered
beneath her bedroom window during this time. (Amd. Compl.
¶ 33(a)). Plaintiff asserts the SRO subsequently
confronted the Offender, instructing him to remove his bike
from Plaintiff's property and cease all contact with her.
(Amd. Compl. ¶ 36).
alleges the Offender “admitted he committed sexual
assault” on four occasions, though Plaintiff does not
detail these admissions. (Amd. Compl. ¶ 37).
Additionally, Plaintiff alleges she “suffered an
incident of stalking, harassment and assault” on
January 17, 2012, during her junior year. (Amd. Compl. ¶
38). On that day, Plaintiff asserts the Offender entered a
girl's locker room on school grounds and, finding
Plaintiff alone, proceeded to rub her shoulders and kiss her
neck. Id. Plaintiff claims she immediately reported
the incident to Mr. Reynolds. Id. Plaintiff's
mother allegedly told Assistant Principal Deming and SRO
Wallace about the locker room incident on January 26, 2012,
and described her concerns about changes in Plaintiff's
behavior. (Amd. Compl. ¶ 39). Such changes allegedly
included disruptions in eating, sleeping, and academic
patterns of behavior. Id.
the alleged locker room incident, Plaintiff alleges her
mother became aware Plaintiff had been subject to sexual
harassment “on a daily basis” from 2011 to 2012.
(Amd. Compl. ¶¶ 39, 40). Over the course of that
year, Plaintiff alleges the Offender touched her hair, neck,
back, and chest, groped her breasts, made sexually explicit
comments, contacted her by telephone, text, and Facebook, and
harassed her on campus, on the school bus, during
extracurricular activities, and through third party contacts.
claims her mother spoke with Assistant Principal Deming and
the SRO on January 27, 2012, and reported the alleged sexual
harassment. (Amd. Compl. ¶ 41). In February 2012,
Plaintiff alleges her mother obtained a temporary restraining
order (“TRO”) against the Offender. (Amd. Compl.
¶ 45). According to Plaintiff, the Board was allegedly
aware of the TRO and the acts which formed the basis for the
order, but did not investigate “the complaint.”
(Amd. Compl. ¶ 46). Plaintiff does not provide any
further factual allegations to support the claim the Board
had knowledge of the TRO or the underlying actions of the
offender. Plaintiff asserts her mother provided copies of the
TRO to several school employees including Assistant Principal
Deming, Mr. Reynolds, and Principal Janice Burns, as well as
SRO Wallace. (Amd. Compl. ¶ 46). Plaintiff claims these
individuals did not attend a hearing on February 17, 2012, at
which the court declined to extend the TRO. Id.
Notably absent from Plaintiff's Amended Complaint are
allegations inferring any school official or administrator
was asked or required to attend the hearing. Plaintiff also
does not assert the attendance of any of the school officials
or Board members would have affected the outcome of the
February 17 hearing.
February 27, 2012, Plaintiff's mother removed her from
SVHS, citing her concerns about the lack of a safety plan and
fear for Plaintiff's safety. (Amd. Compl. ¶¶
43, 47). On or about May 4, 2012, the school provided
Plaintiff's mother with a draft safety plan, which the
parties negotiated and the school implemented when Plaintiff
returned to SVHS on May 25, 2012. (Amd. Compl. ¶¶
47, 48). That same day, a faculty member allegedly told
Plaintiff's mother the faculty member “had not been
made aware that Plaintiff had a safety issue and was not made
aware of what she needed to do to protect Plaintiff s safety
interests.” (Amd. Compl. ¶ 49). Plaintiff asserts
her mother removed her from SVHS that same day due to
“difficulty Plaintiff experienced with the Defendants,
and because of the attitude, demeanor and lack of support
from the school Principal and school officials.” (Amd.
Compl. ¶ 56).
removing her daughter from SVHS, Plaintiff's mother
requested class assignments from Plaintiff's teachers so
Plaintiff could complete the requirements for the academic
year. (Amd. Compl. ¶¶ 50-51). Plaintiff claims she
was provided the assignments and requirements only after
“much effort by Plaintiff's mother.” (Amd.
Compl. ¶ 50-51). Plaintiff further alleges she did not
receive feedback on her assignments until November 2012, and
only received her final grades and transcripts in February
2013. (Amd. Compl. ¶ 53). Plaintiff claims the grades
she eventually received were inaccurate. Id.
Plaintiff asserts her emotional health and academic
performance was affected by the alleged sexual harassment.
(Amd. Compl. ¶¶ 55). According to Plaintiff, her
“decline in performance, ” “poor
transcript, ” and “Defendants' failure to
promptly investigate and remedy the problems she
encountered” prevented her from applying to or be
accepted at educational institutions where she otherwise
would have had an “excellent opportunity of
admission.” (Amd. Compl. ¶¶ 57). Plaintiffs
filed the instant action against Union County Board of
Education and Principal Janice Burns on September 14, 2016.
All Defendants have moved to dismiss Plaintiff's claims
STANDARD OF REVIEW
motions to dismiss contend Plaintiff fails to state a claim
under which relief can be granted, and consequently, no
subject matter jurisdiction exists over Plaintiff's
claims under state law.
Subject Matter Jurisdiction
Rule of Civil Procedure 12(b)(1) provides for dismissal where
the court lacks jurisdiction over the subject matter of a
lawsuit. Subject matter jurisdiction exists in federal
district court when the complaint raises a federal question
under 28 U.S.C. § 1331 or diversity of citizenship under
28 U.S.C. § 1332. Lack of such jurisdiction may be
raised at any time by a litigant or the court. Mansfield,
C. & L. M. RY. CO. v. Swan, 111 U.S. 379, 382
Failure to State a Claim
survive a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim, a complaint
must contain enough facts to “state a claim to relief
that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Tomboy, 550 U.S. 554, 570 (2007)). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw a reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 663. While the
Court accepts plausible factual allegations in the complaint
as true and considers those facts in the light most favorable
to a plaintiff when ruling on a 12(b)(6) motion to dismiss, a
court “need not accept as true unwarranted inferences,
unreasonable conclusions, or arguments.” Eastern
Shore Mkt.'s Inc. v. J.D. Assoc.'s, LLP, 213
F.3d 175, 180 (4th Cir. 2000).