Yarbrough v. E. Wake First Charter Sch.

Decision Date24 February 2015
Docket NumberNo. 5:14–CV–188–D.,5:14–CV–188–D.
Citation108 F.Supp.3d 331
CourtU.S. District Court — Eastern District of North Carolina
Parties Stephanie YARBROUGH, and Stephanie Williams, Plaintiffs, v. EAST WAKE FIRST CHARTER SCHOOL, a/k/a East Wake Academy, and Michael Lester, Defendants.

Denise S. Cline, Law Offices of Denise Smith Cline, PLLC, Raleigh, NC, Kelly Tillotson Ensslin, Law Office of Kelly Tillotson Ensslin, Charlotte, NC, for Plaintiffs.

Dan McCord Hartzog, Jr., Katie Weaver Hartzog, Cranfill Sumner & Hartzog, LLP, Raleigh, NC, for Defendants.


JAMES C. DEVER III, Chief Judge.

On February 26, 2014, Stephanie Yarbrough and Stephanie Williams ("plaintiffs") sued East Wake First Charter School a/k/a East Wake Academy ("EWA") and Michael Lester, individually and in his official capacity as President of the EWA Board of Directors (collectively, "defendants") [D.E. 1–2]. Plaintiffs asserted fifteen claims under state and federal law. On March 27, 2014, defendants timely removed the action from Wake County Superior Court to this court [D.E. 1]. See 28 U.S.C. §§ 1331, 1441(b). On April 29, 2014, defendants filed a partial motion to dismiss [D.E. 8] with a supporting memorandum [D.E. 9]. On June 30, 2014, plaintiffs responded in opposition [D.E. 14] and voluntarily dismissed all claims against Lester in his official capacity and ten claims against Lester in his individual capacity [D.E. 13]. On December 23, 2014, defendants replied [D.E. 26]. As explained below, the court grants defendants' partial motion to dismiss.


EWA is a North Carolina nonprofit corporation that operates a charter school in Zebulon, North Carolina. Compl. [D.E. 1–2] ¶ 4.1 Michael Lester is the president of the EWA Board of Directors ("EWA Board") and held that position during the relevant time period. Id. ¶ 10.

Brandon Smith was the headmaster of and head of human resources for EWA until March 2012. Id. ¶ 19. Before working at EWA, Brandon Smith worked for Durham County Public Schools ("DCPS"). When Smith worked for DCPS, a DCPS teacher sued Smith and DCPS for Smith's alleged sexual harassment of the teacher. Id. ¶¶ 11–12. The lawsuit was pending and a matter of public record when EWA hired Smith. Id. ¶ 11. During Smith's employment with EWA, an unknown person placed copies of the federal court's decision in the DCPS harassment case, in which the court refused to dismiss some of the plaintiff's claims, in the mailboxes of some EWA employees. Id. ¶ 19.

In 2005, after Smith started working for EWA, a female employee who worked in close physical proximity to Smith complained to Lester that Smith had "engaged in unwanted touching of her." Id. ¶ 14. Lester did not tell the EWA Board about this complaint but met with the employee at another board member's home. Id. ¶ 16. Lester did not formally investigate the employee's complaint.Id. Instead, Lester told the employee that she could move to a different location at EWA to avoid Smith. Id. This move occurred almost a year later. Id. ¶ 17. The EWA Board took no disciplinary actions against Smith and did not provide sexual harassment training to Smith or EWA employees. Id. ¶ 18.

In the fall of 2006, Stephanie Yarbrough started working as a substitute teacher at EWA. Id. ¶ 8. By October 2006, she was a full-time physical education teacher assistant at EWA. Id. In 2010, Stephanie Williams started working at EWA as a fifth-grade teacher. Id. ¶ 7. Between 2010 and 2012, Smith made numerous unwanted and inappropriate sexual comments to Yarbrough and to Williams. Id. ¶¶ 26–31, 33–39. Smith also made unwelcome and inappropriate physical contact with Yarbrough and with Williams on multiple occasions. Id. ¶ ¶ 27, 30, 35–36. In December 2011, Smith told Williams that she would not be receiving a longevity raise, and later he told her, in reference to her not receiving the raise, "You know you should have done what I asked you to do." Id. ¶ 30.

In November 2011, Yarbrough and Williams raised their concerns about Smith's conduct with other EWA employees. Id. ¶¶ 32, 40. In early 2012, some EWA Board members learned of Smith's alleged sexual harassment, and two board members raised the issue at a board meeting. Id. ¶ 41. The EWA Board took no actions at the meeting, and Smith asked the Board to sanction the two board members who raised the issue. Id. ¶ 42.

Following this board meeting, Yarbrough and Williams submitted written complaints to Lester. Id. ¶ 43. After Lester reviewed their complaints, Lester determined that the two board members had inappropriately raised the harassment issue. Id. ¶ 44. As a result, Lester sanctioned them, per Smith's request. Id. Lester conducted another board meeting and did not address plaintiffs' complaints. Id. ¶ 45. Lester also showed plaintiffs' written complaints to Smith, and Smith took actions that led to plaintiffs' inability to access their school email for some period of time. Id.

Later, the EWA Board held a special meeting to hear statements from plaintiffs and Smith. Id. ¶¶ 45–46. Following this meeting, the EWA Board took no immediate disciplinary action against Smith. Id.

In February 2012, Yarbrough and Williams filed a police report with the Zebulon Police Department for assault and battery against Smith. Id. ¶ 47. Smith was charged with two counts of assault on a female and two counts of sexual battery. Id. In March 2012, EWA terminated Smith's employment. Id. ¶ 9. After Smith's termination, EWA conducted sexual harassment training, which EWA management suggested "was the fault of Williams and Yarbrough." Id. ¶ 56. EWA also organized some events during school hours and on school property to support Smith. Id. ¶ 55. In October 2013, a Wake County jury convicted Smith of sexual battery and assault on Yarbrough. Id. ¶ 58.

On February 26, 2014, plaintiffs filed suit against EWA and Lester in Wake County Superior Court. Plaintiffs alleged assault, battery, intentional infliction of emotional distress, negligent infliction of emotional distress, sexual harassment under Title VII, negligent hiring, negligent supervision and retention, and violations of the North Carolina Constitution. Id. ¶¶ 59–180. Defendants timely removed the action to this court.


The court first considers defendants' motion to dismiss plaintiffs' North Carolina tort claims against EWA for lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(2). See Fed.R.Civ.P. 12(b)(1), (2) ; Mot. Dismiss [D.E. 8] 1–2. When analyzing North Carolina law, this court must predict what the Supreme Court of North Carolina would do if faced with the issue. In doing so, the court may consider cases from the Supreme Court of North Carolina, the North Carolina Court of Appeals, treatises, and the practices of other states. See, e.g., Twin City Fire Ins. Co. v. Ben Arnold–Sunbelt Beverage Co. of S.C., 433 F.3d 365, 369 (4th Cir.2005) ; Teague v. Bakker, 35 F.3d 978, 991 (4th Cir.1994).

Under North Carolina law, governmental immunity presents a question of jurisdiction. See, e.g., Medina v. United States, 259 F.3d 220, 223–24 (4th Cir.2001) ; Frye v. Brunswick Cnty. Bd. of Educ., 612 F.Supp.2d 694, 701 (E.D.N.C.2009) ; Myers v. McGrady, 360 N.C. 460, 465 n. 2, 628 S.E.2d 761, 765 n. 2 (2006) ; Teachy v. Coble Dairies, Inc., 306 N.C. 324, 326–28, 293 S.E.2d 182, 184 (1982). The Supreme Court of North Carolina, however, has not resolved whether governmental immunity presents a defense to subject-matter jurisdiction or personal jurisdiction. See Myers, 360 N.C. at 465 n. 2, 628 S.E.2d at 765 n. 2. Thus, the court evaluates defendants' motion to dismiss for lack of jurisdiction under both standards.


Under Rule 12(b)(1), a plaintiff must prove subject-matter jurisdiction. See, e.g., Richmond, Fredericksburg & Potomac R.R. v. United States, 945 F.2d 765, 768 (4th Cir.1991). A court regards "the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.1999) (quotation omitted). "The district court should apply the standard applicable to a motion for summary judgment, under which the nonmoving party must set forth specific facts beyond the pleadings to show that a genuine issue of material fact [concerning jurisdiction] exists." Richmond, 945 F.2d at 768.

Under Rule 12(b)(2), a plaintiff must prove personal jurisdiction. See, e.g., Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 59–60 (4th Cir.1993). If the court resolves the motion on the basis of papers alone, a plaintiff must show only a prima facie case of personal jurisdiction. Id. at 60. The court "must draw all reasonable inferences arising from the [plaintiff's] proof, and resolve all factual disputes, in the plaintiff's favor." Id.


Initially, the court analyzes whether EWA, as a charter school, enjoys governmental immunity. Under North Carolina law, public schools "may be sued only when and as authorized by statute."

Smith v. Hefner, 235 N.C. 1, 6, 68 S.E.2d 783, 787 (1952) ; see Benton v. Bd. of Educ. of Cumberland Cnty., 201 N.C. 653, 161 S.E. 96, 97 (1931) (recognizing the governmental immunity of public schools): Seipp v. Wake Cnty. Bd. of Educ., 132 N.C.App. 119, 121, 510 S.E.2d 193, 194 (1999) ("A county or city board of education is a governmental agency, and therefore is not liable in a tort or negligence action except to the extent that it has waived its governmental immunity pursuant to statutory authority."); Lindler v. Duplin Cnty. Bd. of Educ., 108 N.C.App. 757, 761, 425 S.E.2d 465, 468 (1993). By statute, charter schools are public schools. See, e.g., N.C. Gen.Stat. § 115C–218.15(a) ("A charter school that is approved by the State shall be a public school within the local school administrative unit in which it is located."); N.C. Gen.Stat. § 115C–218.(a)(5) (stating that a charter school is meant to "[p]rovide parents and students with expanded choices in the types of educational opportunities...

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