Anderson v. Sch. Bd. of Gloucester Cnty., Civil Action No. 3:18cv745

• Decision Date: 29 May 2020
• Docket Number: Civil Action No. 3:18cv745
• Court: U.S. District Court — Eastern District of Virginia
• Parties: DR. WENDI H. ANDERSON, Plaintiff, v. THE SCHOOL BOARD OF GLOUCESTER COUNTY, VIRGINIA, et al., Defendants.

DR. WENDI H. ANDERSON, Plaintiff, v. THE SCHOOL BOARD OF GLOUCESTER COUNTY, VIRGINIA, et al., Defendants.

Civil Action No. 3:18cv745

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division

May 29, 2020

MEMORANDUM OPINION

This matter comes before the Court on Defendants the School Board of Gloucester County (the "School Board"), Patricia J. McMahon ("Dr. McMahon" or "McMahon"), and Gwyn H. Ciemniecki's (collectively with McMahon and the School Board, the "Defendants") Motion to Dismiss brought pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).¹ (ECF No. 11.) Plaintiff Wendi H. Anderson ("Dr. Anderson" or "Anderson") responded, (ECF No. 13), and Defendants replied, (ECF No. 14). This matter is ripe for disposition. The Court exercises jurisdiction pursuant to 28 U.S.C. § 1331² and supplemental jurisdiction pursuant to 28U.S.C. § 1367.³ For the reasons that follow, the Court will grant in part and deny in part Defendants' Motion to Dismiss.

I. Factual and Procedural Background

Dr. Anderson, a teacher at Page Middle School ("Page") located in Gloucester County, Virginia, brings this eight-count Amended Complaint arising out of Dr. McMahon, Ciemniecki (collectively, the "Page Administration") and the School Board's alleged failure to provide reasonable accommodations for Dr. Anderson's scent sensitivity and allergies after they had previously done so. The Amended Complaint brings claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112, et seq.,⁴ the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601, et seq.,⁵ 42 U.S.C. § 1983,⁶ and Virginia law.

A. Factual Allegations⁷

The School Board supervises all public schools in Gloucester County, including Page. (Am. Compl. ¶ 2, ECF No. 9.) Dr. McMahon currently serves as the Principal of Page and Ciemniecki "is the Executive Director of Human Resources [and] Compliance for the Gloucester County Public Schools." (Id. ¶¶ 3-4.) Since 2006, Gloucester County Public Schools has employed Dr. Anderson as a teacher. (Id. ¶ 1.) During the 2017-18 school year, the time period underlying the Amended Complaint, "Anderson taught Eighth Grade English and Language Arts at Page." (Id.)

Dr. Anderson suffers from a "sensitivity [and] allergy to scents, including perfumes and topicals that contain vanilla, cocoa butter, flora/fruits, musks, patchouli (mint), body sprays,lotions and hand sanitizer." (Id. ¶ 10.) She alleges that her exposure to these scents causes her to experience multiple physical reactions, some of which are immediate and some of which "[w]orsen[]. . . [w]ith successive exposures." (Id. ¶ 20.) Dr. Anderson reports, among other reactions, experiencing "[p]ain in the throat and mouth," "[d]ifficulty breathing," "[c]oughing," "[c]ognitive dysfunction," "[d]iarrhea," "[b]lurry vision," "[m]igraines," the "[n]eed to leave class to take antihistamines and other supplements," the need to "[t]each with [her] face covered," and the need to "[w]ear multiple masks to reduce exposure, without success." (Id. ¶ 20.)

Prior to the 2017-18 school year, the School Board adopted and enforced a scent sensitivity policy (the "Scent Policy")⁸ in Dr. Anderson's classroom. (Id. ¶ 11.) Under the Scent Policy, the former principal of Page permitted Anderson "to inform students about her sensitivity/allergy . . . and a letter/note was sometimes distributed to parents." (Id.) "Pursuant to the [Scent Policy], both . . . Anderson and Page Administration interacted with parents in the event of a violation of the policy by a student." (Id.) Anderson and the Page Administration could also discipline students based on an "intentional and flagrant violation" of the Scent Policy, and in one instance, the administration suspended a student for ten days. (Id.)

During the time the Scent Policy was in effect, Dr. Anderson alleges that she received positive feedback on her performance reviews at Page. (Id. ¶ 13.) For instance, in her performance review following the 2011-12 school year, the former principal of Page rated her as having achieved "mastery" in one category and "professional" in the remaining categories; shedid not receive a "needs improvement" rating in any category. (Id.) In 2015, Anderson submits that she achieved a rating of "mastery" in several additional categories along with positive performance comments. (Id.)

Before the 2017-18 school year, Dr. Anderson planned to advise parents about her sensitivity and allergies during an open house. (Id. ¶ 15.) She sent Principal McMahon an email with a proposed note that she planned to share with parents, "as she had done many times in the past," detailing her various sensitivities and asking students to refrain from wearing products with certain scents. (Id.) The next day, Dr. McMahon responded, suggesting that Anderson "not define that you are the person with the allergy" because "your information is private, and you do not need to share it with parents or students." (Id.) McMahon suggested alternatives, such as: hanging allergy awareness signs outside the classroom; including on the syllabus that the classroom is an "allergy awareness classroom;" letting students know they should "be aware" of scents and perfumes; and, listing specific scents for students to be aware of if Anderson submitted a doctor's note to the Page Administration. (Id.) McMahon also offered to send someone to present information about allergies to Anderson's classroom at the start of the academic year. (Id.)

In response to Dr. McMahon's email, Dr. Anderson provided letters from health care providers confirming her sensitivity. (Id. ¶ 16.) Anderson also sent McMahon a list of requested accommodations. (Id. ¶ 17.) Anderson alleges that, in response, the "School Board and McMahon refused the accommodations requested by Dr. Anderson and recommended by her health care providers." (Id.) Seemingly by email, Dr. Anderson confirmed that Dr. McMahon told Anderson that: (1) she was not allowed to say anything about her specific allergies to students; (2) she could not communicate with students about her allergies except through Dr.McMahon and the school nurse; (3) she could not ask a student to relocate even if that student was wearing a scent that made breathing difficult; and, (4) her "only option" in the event of an allergy attack was "to remove [herself] from the classroom." (Id.) As an explanation for the prohibition against allowing Anderson to give examples of her allergies, Ciemniecki replied that "'it's rude to tell someone that you are allergic to what they are wearing. It's like saying they have B.O.'" (Id. ¶ 19) (emphasis in original).

During the first five days of the 2017-18 school year, Dr. Anderson experienced four allergic reactions including one of "the worst response[s] to scents she had ever had in her life." (Id. ¶ 28.) Beginning in September 2017, a Virginia Education Association ("VEA") representative and Dr. Anderson met with Dr. McMahon and Ciemniecki several times to discuss reasonable accommodations for Anderson. (Id. ¶ 19.) Anderson submits that in the event of an allergic reaction, she was permitted only to move the class, put on her mask, ask a student to pass work over, or leave class herself and go to the nurse. (Id.) When McMahon asked Anderson "why she had not availed herself of the option of leaving class and going to see the nurse," Anderson replied that: "the accommodations are supposed to allow Dr. Anderson to continue to perform her duties as a [t]eacher (not to remove her from duty) and because her allergic reactions sometimes last for days at a time, it was not reasonable to go see the nurse." (Id.)

The conflict over Dr. Anderson's allergies continued throughout the 2017-18 school year during which "Dr. Anderson continually advised McMahon and Ciemniecki that the School Board's refusal to reasonably accommodate Dr. Anderson was causing serious injury." (Id. ¶ 21.) Dr. Anderson alleges that discrimination occurred in the following circumstances:

1. Dr. McMahon did not allow Dr. Anderson to address students about the school rule "that no one can wear 'strong scents.'" (Am. Compl. Ex. A, 1, ECF No. 9-1.)

2. Dr. McMahon did not allow Dr. Anderson to send a student wearing a strong scent to the flexible classroom space outside her classroom to move the scent out of the classroom. (Id.)

3. Dr. McMahon did not allow Dr. Anderson to move her classroom to the common area "to allow more air and a less confined space."⁹ (Id.)

4. Dr. McMahon did not allow Dr. Anderson to "speak to the students at will and engage in disciplinary measures about . . . purposeful repeated disruptive use of scents." (Id. 2.)

5. Dr. McMahon did not allow Dr. Anderson "to call [a student's] home at will for . . . purposeful repeated disruptive use of scents."¹⁰ (Id.)

6. Dr. McMahon did not allow Dr. Anderson to call home "about disruptive and disrespectful behavior for students once they began purposeful repeated or disruptive use of scents." (Id.)

7. Although other teachers could, Defendants did not allow Dr. Anderson to "personally ask students on a case by case basis about scents or sprays that irritated [her] physical conditions." (Id.)

8. "A teacher with Mast Cell Activation Disorder was allowed to remove from the classroom and discipline a student who repeatedly wore a scent that she had told her irritated the teacher's condition." Defendants did not allow Anderson to do the same. (Id.)

9. Defendants did not protect Anderson based on her sensitivity and allergies in the same way they might protect a student with an allergy. (Id. 3.)

In addition to these alleged discriminatory acts, Dr. Anderson contends that her treatment by the School Board and the Page Administration did not align with her quality of performance.First, without elaboration, Dr. Anderson alleges that Dr. McMahon falsely accused her of violating the Family Education Rights and Privacy Act ("FERPA").¹¹ (Am. Compl. ¶ 25.) According to Anderson,...