Miller v. Union Cnty. Pub. Sch.

TARYN MILLER , Plaintiff, v. UNION COUNTY PUBLIC SCHOOLS,and JANICE BURNS, in her officialand individual capacity, Defendants.

DOCKET NO. 3:16-cv-00666-FDW-DCK

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION

September 7, 2017

ORDER

THIS 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.

I. BACKGROUND

Plaintiff is a former student at Sun Valley High School ("SVHS"), which is operated by the Board.¹ (Amd. Compl. ¶¶ 3, 12). Plaintiff alleges she was sexually harassed by a male studentat 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 Pusser² 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 Plaintiff. Id.

Plaintiff 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 f___k?" 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).

After 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 allegedlyspoke 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).

In 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).

Plaintiff alleges the Offender "admitted he committed sexual assault" on four occasions, though Plaintiff does not detail these admissions. (Amd. Compl. ¶ 37). Additionally, Plaintiffalleges 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.

After 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. Id.

Plaintiff 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.

On 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).

After 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 sheeventually 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 against them.

II. STANDARD OF REVIEW

Defendants' 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.

A. Subject Matter Jurisdiction

Federal 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...