Lucas v. Henrico County Sch. Bd., Civil Action No. 3:11cv5.

• Citation: 822 F.Supp.2d 589,278 Ed. Law Rep. 207
• Decision Date: 30 September 2011
• Docket Number: Civil Action No. 3:11cv5.
• Parties: Kandise LUCAS, Plaintiff, v. HENRICO COUNTY SCHOOL BOARD, et al., Defendants.
• Court: United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)

278 Ed. Law Rep. 207

822 F.Supp.2d 589

Kandise LUCAS, Plaintiff,

v.HENRICO COUNTY SCHOOL BOARD, et al., Defendants.

Civil Action No. 3:11cv5.

United States District Court, E.D. Virginia,Richmond Division.

Sept. 30, 2011.

Kandise Lucas, Sandston, VA, pro se.

Joseph Thomas Tokarz, II, Andrew Ramsey Newby, Henrico County Attorney's Office, Richmond, VA, for Defendants.

ORDER

ROBERT E. PAYNE, Senior District Judge.

By Order entered herein on May 2, 2011, the pending DEFENDANTS' AMENDED RULE 12(b)(1) MOTION TO DISMISS (Docket No. 7) and DEFENDANTS' AMENDED RULE 12(b)(6) MOTION TO DISMISS (Docket No. 9) were referred to Magistrate Judge M. Hannah Lauck for report and recommendation. Having reviewed the REPORT AND RECOMMENDATION of the Magistrate Judge (Docket No. 30) entered herein on August 25, 2011, and there being no timely filed objections thereto, and the time for filing objections having expired, and having considered the record and the REPORT AND RECOMMENDATION and finding no error therein, it is hereby ORDERED that the REPORT AND RECOMMENDATION of the Magistrate Judge (Docket No. 30) is ADOPTED on the basis of the reasoning of the REPORT AND RECOMMENDATION.

It is further ORDERED that the DEFENDANTS' AMENDED RULE 12(b)(1) MOTION TO DISMISS (Docket No. 7) and DEFENDANTS' AMENDED RULE 12(b)(6) MOTION TO DISMISS (Docket No. 9) are granted in part and denied in part. Accordingly, it is hereby ORDERED that:

(1) Count One may proceed only against the defendant, Henrico County School Board;

(2) Count Two is dismissed based on Defendants' entitlement to qualified immunity;

(3) Count Three is dismissed as barred by the applicable statute of limitations;

(4) Count Four (A) is dismissed for lack of jurisdiction; (5) Count Four (B) is dismissed for lack of standing and as duplicative of Count One;

(6) Counts Five, Six, Seven and Eight are dismissed for failure to state a claim; and

(7) Count Nine may proceed to the extent it alleges an abuse of process accruing on or after January 4, 2009.

It is further ORDERED that this case shall be set for an Initial Pretrial Conference by separate Order.

The issues are adequately addressed by the briefs and oral argument would not materially aid the decisional process.

It is SO ORDERED.

REPORT AND RECOMMENDATION

M. HANNAH LAUCK, United States Magistrate Judge.

This matter comes before the Court pursuant to 28 U.S.C. § 636(b)(1)(B) for a Report and Recommendation on Defendants' Amended Rule 12(b)(1) Motion to Dismiss and Amended Rule 12(b)(6) Motion to Dismiss. (Docket Nos. 7, 9.) These motions have been fully briefed, and on August 18, 2011, the Court heard oral argument. This matter is now ripe for disposition. For the reasons that follow, the undersigned Magistrate Judge RECOMMENDS that Defendants' motions to dismiss be GRANTED IN PART and DENIED IN PART.

I. Factual and Procedural Background ¹

A. Lucas's Employment with Henrico County Public Schools

On January 4, 2011, Lucas, formerly employed by Henrico County Public Schools, filed a Complaint in this Court against Defendants Henrico County School Board, Patrick Russo, Andrew Armstrong, Philip Jepson, Marilyn Royal, Fred S. Morton, and John Rokenbrod.²

Starting in August 2005, Lucas worked at John Rolfe Middle School as a special education teacher, case manager, and new teacher mentor. (Compl. ¶ 16.) Lucas alleges that Kim Arcell Taylor, a fellow teacher at John Rolfe Middle School, physically and verbally abused students with special needs, made sexually inappropriate remarks to female staff, and touched female staff in a sexually inappropriate manner. (Compl. ¶ 22.) For two years, Lucas, along with other staff and parents, “reported [Taylor's] abusive and neglectful actions” to Armstrong, Royal, Jepson, and Morton, as well as to members of the Henrico County School Board. (Compl. ¶ 22.) Defendants disregarded her reports and “repeatedly instructed [her] to refrain from documenting and reporting” Taylor's abuse. (Compl. ¶ 22.) Defendants did not take action against Taylor until April 2008, when he reportedly came to work under the influence of alcohol. (Compl. ¶ 22.) Lucas claims that Taylor received preferential treatment due to his personal connections with Royal, that school officials allowed Taylor to resign prior to taking disciplinary action against him, and that Defendants failed to report Taylor's abuse to the appropriate administrative agencies. (Compl. ¶ 22.)

“Throughout her tenure at Henrico County Public Schools, Lucas also documented and reported numerous special education violations and systematic discriminatory practices as they relate to African–American students with special needs, specifically males, and economically disadvantaged students within John Rolfe Middle School.” (Compl. ¶ 23.) Starting in November 2007, Armstrong, Royal, Jepson, and Morton repeatedly instructed Lucas to refrain from documenting and reporting “incidents of abuse, neglect, and discrimination by district employees toward students within John Rolfe Middle School.” (Compl. ¶ 20.) Armstrong instructed Lucas to report any such incidents verbally and prohibited her from documenting the incidents via e-mail. (Compl. ¶ 20.)

Lucas “received numerous written and verbal threats” in response to her reporting activities. (Compl. ¶ 24.) In October 2007, Rokenbrod sent an email to John Rolfe Middle School administrators referencing Lucas and advising the administrators to “ ‘do whatever needs to be done in order to get rid of her so that [they] are not stuck with her next year.’ ” (Compl. ¶ 26.) In November 2007, two individuals placed messages in her school mailbox stating, “ ‘YOUR FIRED MS. LUCAS.’ ” (Compl. ¶ 25.) Lucas reported the incident to school board members and to Morton, Royal, and Jepson, but no investigation resulted. (Compl. ¶ 25.) Lucas contends on information and belief that the messages were left “at the direction of Henrico's administration in an effort to intimidate Lucas into resigning.” (Compl. ¶ 25.) In April 2008, Morton sent Lucas a threatening letter “to discourage Lucas from testifying before the Office of Civil Rights” regarding a complaint against the district. (Compl. ¶ 24.)

In February 2008, Morton transferred Lucas from John Rolfe Middle School to Elko Middle School, demoting her to serve as an assistant to two science instructors. (Compl. ¶ 16.) Armstrong and Jepson informed Lucas of the transfer, advising her it was the result of her unprofessional conduct. (Compl. ¶ 16.) Lucas contends the transfer violated the district's disciplinary guidelines and occurred within the same week she received a superior written evaluation. (Compl. ¶ 16.)

Despite the transfer, Lucas continued to report “suspected and actual incidents of abuse and neglect, as well as discriminatory practices as they relate to students with disabilities, specifically students of color and those that were economically disadvantaged at John Rolfe Middle School.” (Compl. ¶ 27.) In response to her continued reporting activities, Morton advised her in February 2008 that he would be recommending the non-renewal of her teaching contract. (Compl. ¶ 27.) Lucas challenged this recommendation through the district's grievance process, and in April 2008, Morton agreed to withdraw his recommendation. (Compl. ¶ 27.)

Thereafter she continued her reporting activities and, in May 2008, Morton “had a letter hand-delivered to Lucas while she was at Elko Middle School in which he issued a directive that stated, ‘you are not permitted to write or send any emails without my permission during school hours.’ ” (Compl. ¶ 28.) In response, Lucas sent Morton an e-mail requesting clarification and the legal grounds for his directive. (Compl. ¶ 29.) Morton responded with another hand-delivered letter “advising Lucas that should she email him again without seeking permission first, during work hours, she would face disciplinary action, which would include the possibility of termination.” (Compl. ¶ 29.) Lucas again e-mailed Morton, requesting clarification and the legal grounds for his directive. (Compl. ¶ 29.)

On May 5, 2008, Morton suspended Lucas for sixty days with pay and advised Lucas that he would be recommending her for contract non-renewal because she neglected her duties, engaged in insubordinate conduct, posed a threat to her students, and interfered with the daily operations of the school district. (Compl. ¶ 30.) On May 30, 2008, the school board held a public hearing and upheld Morton's “recommendation for contract nonrenewal based on the grounds of insubordination, posing a threat to students, and interfering with the daily operations of the school district, as well as preventing [Morton] from carrying out his daily job duties.” (Compl. ¶ 31.) Lucas alleges that the school board upheld Morton's recommendation to retaliate against Lucas for her reporting activities. (Compl. ¶ 31.) On June 30, 2008, Lucas's employment with Henrico County Public Schools terminated. (Compl. ¶ 3.)

B. Lucas's Charge of Discrimination filed with the Equal Employment Opportunity Commission (“EEOC”)

In May 2008, Lucas “filed a formal complaint claiming retaliation, intimidation, and discrimination with the Equal Employment Opportunity Commission.” (Compl. ¶ 32.) The Charge of Discrimination referenced in Lucas's Complaint alleged retaliation and discrimination based on race. (Def.'s Mem. Supp. Am. Rule 12(b)(1) Mot. Dismiss Ex. 1.) Lucas listed the earliest date on which discrimination took place as August 15, 2007 and the latest date on which discrimination took place as May 5, 2008. Id. Lucas stated in the Charge of Discrimination, “I believe I received written reprimands, transferred to another school, recommended for contract non-renewal, suspended, and recommended for discharge because of my race, Black, in violation of Title VII ³ of the Civil Rights Act of 1964....” Id. She also stated that “[f]rom August 2007 through February 2008, I voiced my concerns about the...