Richardson v. Booneville Sch. Dist.

766 F.Supp.2d 910

267 Ed. Law Rep. 651

Amy RICHARDSON, Plaintiff

v.BOONEVILLE SCHOOL DISTRICT, John K. Parrish and Glynda McConnell, Defendants.

No. 2:10–CV–02142.

United States District Court, W.D. Arkansas, Fort Smith Division.

Jan. 21, 2011.

H. Ray Hodnett, Attorney at Law, Van Buren, AR, Stephanie Harper Easterling, Hayes, Karber, Alford & Smith, PLLC, Fort Smith, AR, for Plaintiff.James M. Llewellyn, Jr., Thompson & Llewellyn, P.A., Fort Smith, AR, for Defendants.

ORDER

JAMES R. MARSCHEWSKI, United States Chief Magistrate Judge.

Before the court is the Defendants Motion to Dismiss (See ECF No. 8 & 17) filed October 12, 2010 and renewed November 12, 2010. The Plaintiff filed her initial Response (See ECF No. 12) on October 25, 2010 and Supplemental Response (See ECF No. 20) on November 24, 2010. The Defendants filed their Reply (See ECF No. 22) on November 29, 2010. A hearing on the Motion was held on January 22, 2011 and the court finds that the Motion should be GRANTED in Part and DENIED in Part.

Background:

The Plaintiff, a nonprobationary employee, was employed by the Booneville School District. (ECF No. 11, ¶ 8). Superintendent Parrish notified the Plaintiff on July 24, 2008 that her employment was suspended ( Id., ¶ 9) and that he was recommending the termination of her contract because Plaintiff allegedly used a relationship with the past superintendent to intimidate staff, used a school supplied phone for personal benefit and her relationship with the past Superintendent decrease staff morale and destroyed Plaintiffs effectiveness with the staff of the Booneville School District. ( Id., ¶ 10). A hearing was conducted by the Booneville School Board which subsequently approved the recommendation to terminate the Plaintiff.

In accordance with the Teacher Fair Dismissal Act, ACA § 6–17–1510. The Plaintiff appealed her termination to the Circuit Court within seventy-five (75) days as provided in this statute. Subsequently, the Plaintiff filed her Motion for Dismissal Without Prejudice which the Circuit Court approved.

The Plaintiff filed her complaint ( ECF No. 1) on September 23, 2010 alleging Denial of Due Process ( Id., ¶¶ 17–23), Constitutional Deprivation ( Id., ¶ ¶ 24–29) and Termination Based Upon Fraud and Slander ( Id., ¶¶ 30–33).

The Defendant filed a Motion to Dismiss ( ECF No. 8) alleging that (A) the complaint failed to state a claim under Federal Rule of Civil Procedure 12(b)(6); (B) that the Plaintiff waived her claim under Ark.Code § 6–17–1510(d) by abandoning her appeal in Circuit Court; that the Plaintiff's claims against Defendants John Parrish and Glynda McConnell do not state a claim under 42 U.S.C. § 1983 and (D) that the Plaintiff's Complaint for Fraud and Slander did not meet the standard required under Federal Rule of Civil Procedure 9(b).

The Plaintiff filed an Amended Complaint ( ECF No. 11 ) on October 26, 2010 alleging Denial of Due Process ( Id., ¶¶ 24–30), Constitutional Deprivation ( Id., ¶¶ 31–36) and Termination Based Upon Fraud and Slander ( Id., ¶¶ 37–40). On November 12, 2010 the Defendants filed a Second Motion to Dismiss (ECF No. 17) incorporating the Motion to Dismiss (ECF No. 8) filed on October 12, 2010.

Discussion:

The Defendants first contend that the Plaintiff's pleading is deficient pursuant to the Supreme Court's rulings in Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and Ashcroft v. Iqbal, ––– U.S. ––––, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

A. Failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)

The 8th Circuit held that Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Twombly and Iqbal did not abrogate the notice pleading standard of Rule 8(a)(2). Rather, those decisions confirmed that Rule 8(a)(2) is satisfied “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949; see Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). However, “to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.” Iqbal, 129 S.Ct. at 1949, quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A pleading that merely pleads “labels and conclusions,” or a “formulaic recitation” of the elements of a cause of action, or “naked assertions” devoid of factual enhancement will not suffice. Id., quoting Twombly. Determining whether a claim is plausible is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 1950. Hamilton v. Palm 621 F.3d 816, 817–818 (C.A.8 (Mo.), 2010).

The Defendant has asserted that the following allegations in the Plaintiff's complaint constitute conclusions and are not allowed under Rule 8(a)(2).

Plaintiff was provided with the results of the investigation but all of the names of the individuals interviewed or providing information were redacted therefore Plaintiff was denied clear and actual notice in sufficient detail to enable her to present evidence or the specific nature and factual basis for the charges at the scheduled September 24, 2008 hearing (“September Hearing”). ECF No. 11, ¶ 12. The claim is certainly factually based concerning the names of the individuals making claims against the Plaintiff being redacted from the report. As to whether she was denied “clear and actual notice” is a conclusion on the part of the Plaintiff. The Defendants represented in the hearing that the record of the proceeding before the Booneville School Board shows that the Plaintiff was aware of the names of the people making allegations but the record of the hearing is not before the court.

The investigation organized by Booneville and presented to the Board at the September Hearing was further biased in that Plaintiff was consistently and continually referred to as “Target Richardson,” in addition to a large part of the resulting written report based on rumors. ECF No. 11, ¶ 13. Whether the report was biased is a conclusion but a factual allegation is made that the report referred to the Plaintiff as a “target” and that the report was based on rumors.

The September Hearing was held before a biased decision maker in that it was the same Board that hired Parrish for the purpose of terminating Plaintiff's employment. ECF No. 11, ¶ 15. This statement is completely conclusory

Defendant McConnell instructed Defendant Parrish that it was her personal desire that Plaintiff's employment be terminated. ECF No. 11, ¶ 20 This does not appear conclusory to the court. It is a factual allegation that may or may not be true.

Defendant Parrish regularly and consistently discussed with third parties that he obtained his position as Superintendent in exchange for promising to fire the Plaintiff, in addition to the principal. ECF No. 11, ¶ 19. This does not appear conclusory to the court. It is a factual allegation that may or may not be true but it is sufficient to support the Plaintiff's claim.

Defendant McConnell, while in her positions as President of the Booneville School Board, slandered Plaintiff in interfering with Plaintiff's loan application at a local bank. Id., ¶ 21. This paragraph is strictly conclusory on the part of the Plaintiff and will not support a claim of fraud or defamation.

The Defendants next contend that the Plaintiff's claims are barred because she failed to pursue her appeal of the Board's decision in state court.

B. Waiver of Claims Contention:1. State Claim:

The Defendants contend that the Plaintiff waived her claim under Ark.Code § 6–17–1510(d) by abandoning her appeal in the Franklin County Circuit Court.

The Arkansas statute provides that the “exclusive remedy for any nonprobationary teacher aggrieved by the decision made by the board of directors shall be an appeal therefrom to the circuit court of the county in which the school district is located.” Ark.Code Ann. § 6–17–1510(d).

The Plaintiff appealed her case to the circuit court but subsequently took a voluntary non-suit in the Arkansas Circuit Court and then filed the present action. The Arkansas Rules of Civil Procedure state that “an action may be dismissed without prejudice to a future action by the plaintiff before the final submission of the case to the jury, or to the court where the trial is by the court. Although such a dismissal is a matter of right, it is effective only upon entry of a court order dismissing the action.” Arkansas Rules of Civil Procedure (ARCP), Rule 41.

It also appears that the Arkansas Supreme Court has addressed the issue of whether a re-file of a case after a voluntary non suit is prohibited. The court has held that “We are unwilling to say that, just because § 6–17–1510(d) refers to a nonprobationary teacher's exclusive judicial remedy as an “appeal” to circuit court, it becomes a special proceeding. Using the terminology of Rule 81(a), we hold that the right being pursued by Ms. Sosebee was not created by the Teacher Fair Dismissal Act.” Sosebee v. County Line School Dist. 320 Ark. 412, 418, 897 S.W.2d 556, 560 (Ark., 1995).

Justice Brown, in writing his dissent in the Sosebee case stated that the “majority's opinion would have it that a notice of appeal from school board action is an original civil action commenced in circuit court for breach of contract.” ( Id., p. 420, 897 S.W.2d 556).

The majority opinion was followed by the Arkansas Court of Appeals which stated that “[a]n action brought pursuant to the Fair Dismissal Act is both a civil action and “a claim for ‘labor or services' ” within the meaning of Ark.Code Ann. § 16–22–308, the general statute authorizing attorney's fees.” Hall v. Kingsland School Dist., 56 Ark.App. 110, 112, 938 S.W.2d 571, 572 (Ark.App.,1997)

The...