Dunbar v. Cardinal Charter Academy

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

NO. 5:24-CV-66-FL

L.C., by and through his mother, GRACE )

DUNBAR, )

)

Plaintiffs, )

)

v. )

ORDER

)

CHARTER SCHOOLS USA AT CARY, )

LLC, and TRIANGLE CHARTER )

EDUCATION ASSOCIATION, INC., )

)

Defendants. )

This matter is before the court upon defendants’ motion to dismiss pursuant to Federal Rule

of Civil Procedure 12(b)(6) (DE 12). The motion has been briefed fully, and in this posture the

issues raised are ripe for ruling. For the following reasons, defendants’ motion is granted.

STATEMENT OF THE CASE

Plaintiff began this educational discrimination suit February 5, 2024, and filed an amended

complaint as of right February 19, 2024.1 Plaintiff asserts claims 1) under Title VI of the Civil

Rights Act of 1964, 42 U.S.C. § 2000d et seq. (“Title VI”); 2) for negligent supervision under

North Carolina law; and 3) for intentional infliction of emotional distress under North Carolina

law (“IIED”). Plaintiff seeks compensatory and punitive damages, plus costs and fees. Defendants

filed the instant motion April 11, 2024, seeking dismissal of all claims for failure to state a claim

upon which relief can be granted.

1 All references and citations in this order to the “complaint” are to this operative version of the complaint at

docket entry (DE) 5.

STATEMENT OF FACTS

The facts alleged in the complaint are as follows. Plaintiff L.C., whose mother is Grace

Dunbar (“Dunbar”), is an African-American student who resides in Cary, North Carolina, and used

to attend Cardinal Charter Academy.2 (Compl. ¶¶ 1, 3). Cardinal Charter Academy is associated

with defendants Charter Schools USA at Cary, LLC, and Triangle Charter Educational

Association, Inc., a “North Carolina non-profit entity organized for educational purposes.” (See

id. ¶¶ 4–5).

L.C. attended Cardinal Charter Academy for nearly eight years. (Id. ¶ 11). During his

third grade year, he was forced to sit outside in a hallway, without instruction, for more than half

of the year and because of Cardinal Charter Academy’s failure to provide L.C. with proper

instruction, L.C. had to repeat the third grade. (Id. ¶¶ 14–15). Cardinal Charter Academy allegedly

falsely accused L.C. of bringing a lighter bearing a stenciled illustration of a nude woman to

school. (Id. ¶ 16). Cardinal Charter Academy falsely lodged a child protective services complaint

that L.C. was being neglected at home. (Id. ¶ 17).

On December 16, 2021, defendants claimed three students reported that L.C. made threats

against the school, and notified the Cary police department. (Id. ¶ 18). During interviews with

the students, Cardinal Charter Academy learned that L.C. was “subjected to extreme bullying,

teasing, and harassment[,]” but did nothing to investigate or protect L.C. (Id. ¶ 19). Cardinal

Charter Academy detained L.C. and attempted to intimidate him into confessing, but L.C.

2 In deference to plaintiff’s pleading at this stage, this order’s caption repeats the word “plaintiffs” in the plural.

However, Dunbar has sued on behalf of L.C., a minor. There is, therefore, only one plaintiff, on whose behalf Dunbar

is acting. Fed. R. Civ. P. 17(c); see, e.g., Jonathan R. v. Justice, 688 F. Supp. 3d 355, 357–58 (S.D.W. Va. 2023).

The remainder of this order accordingly employs “plaintiff” in the singular. Dunbar represents in the complaint that

she moved to proceed under a pseudonym, but no such motion appears on this court’s docket. (See Compl. ¶ 2).

continued to deny making any threats against the school. (Id. ¶ 20). Cardinal Charter Academy

nonetheless suspended L.C. (Id. ¶¶ 21–24).

Plaintiff alleges that Cardinal Charter Academy’s mistreatment of L.C. drove him into

alcohol consumption and abuse, for which L.C. had to enroll in a rehabilitation program in Miami.

(Id. ¶¶ 27–30).

COURT’S DISCUSSION

A. Standard of Review

To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

“Factual allegations must be enough to raise a right to relief above the speculative level.”

Twombly, 550 U.S. at 555. In evaluating whether a claim is stated, “[the] court accepts all well-

pled facts as true and construes these facts in the light most favorable to the plaintiff,” but does not

consider “legal conclusions, elements of a cause of action, . . . bare assertions devoid of further

factual enhancement[,] . . . unwarranted inferences, unreasonable conclusions, or arguments.”

Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009).

B. Analysis

Defendants argue that dismissal is warranted on several grounds because plaintiff fails to

adequately plead any claims. The court agrees.

1. Attempted Amendment of Complaint Through Briefing

At the outset the court must address plaintiff’s attempted amendment through plaintiff’s

brief submitted in opposition to defendants’ motion.

It is “well-established that parties cannot amend their complaints through briefing or oral

advocacy.” S. Walk at Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC,

713 F.3d 175, 184 (4th Cir. 2013). Accordingly, a plaintiff cannot “cure pleading deficiencies

. . . with later-filed supporting documentation,” such as affidavits. United States ex rel. Nathan v.

Takeda Pharms. N. Am., Inc., 707 F.3d 451, 459 n.8 (4th Cir. 2013).

Plaintiff attempts to do here exactly what these cases forbid. In plaintiff’s brief in

opposition, plaintiff asserts “supplemental factual allegations” and submits 26 pages of additional

documents, including an affidavit in support. (Pl’s Br. (DE 14) 2–7). These items were not

explicitly incorporated into the complaint or attached to it as exhibits, and so cannot be considered

as part of the complaint. See Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166 (4th Cir.

2016).

Accordingly, the court declines to consider plaintiff’s exhibits or the briefed “supplemental

factual allegations” drawn from them, for purposes of the instant motion. And, even if the court

considered these, as discussed below, its conclusions would not be disturbed.

2. Title VI

Defendants contend that plaintiff’s complaint does not properly plead either Title VI theory

plausibly advanced by the complaint, for failure to allege any connection between race and any of

defendants’ actions. The court agrees.

a. Deliberate Indifference to Harassment

The first theory raised in the complaint and plaintiff’s briefing is deliberate indifference to

student-on-student harassment. (See Pl’s Br. 7–10).

This theory of liability is well-established in jurisprudence applying Title IX, which

prohibits sex discrimination in education. See 20 U.S.C. § 1681 et seq.; Davis ex rel. LaShonda

D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 633 (1999) (recognizing theory under Title IX);

Feminist Majority Found. v. Hurley, 911 F.3d 674, 686 (4th Cir. 2018) (applying Davis). The

United States Court of Appeals for the Fourth Circuit has not squarely ruled whether this

framework applies in the same way under Title VI, which prohibits racial discrimination in

programs receiving federal funding, including education, but other courts generally accept that it

does. 42 U.S.C. § 2000d; see, e.g., Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 408 (5th

Cir. 2015); Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 271 (3d Cir. 2014); Zeno v. Pine

Plains Cent. Sch. Dist., 702 F.3d 655, 664–65 (2d Cir. 2012); Bryant v. Indep. Sch. Dist. No. I-38

of Garvin Cnty., Okla., 334 F.3d 928, 934 (10th Cir. 2003). Given this consensus of persuasive

authority and the parties’ agreement that Davis is the proper test, the court proceeds under that

framework. (See Defs’ Br. (DE 13) 5; Pl’s Br. 8).

Under Davis as applied to Title VI, a plaintiff must demonstrate four elements to support

a deliberate indifference to harassment claim: 1) plaintiff was a student at an institution receiving

federal funds; 2) plaintiff suffered racial harassment so severe, pervasive, and objectively offensive

as to deprive plaintiff of equal access to educational opportunities or benefits; 3) the school,

through an official with authority to address and correct the alleged harassment, had actual notice

or knowledge of the alleged harassment; and 4) the school acted with deliberate indifference to the

alleged harassment. See Doe v. Fairfax Cnty. Sch. Bd., 1 F.4th 257, 263–64 (4th Cir. 2021) (setting

out elements under Title IX); I.M. v. Granville Cnty. Schs., No. 5:22-cv-7-FL, 2022 WL 3441835,

at *6–7 (E.D.N.C. Aug. 16, 2022) (quoting Doe and posing same elements for Title VI claim).

Defendants advance several arguments under this framework, among them that plaintiff

draws no connection at all between race and the alleged harassment here. The court agrees and so

does not reach defendants’ other arguments.

Plaintiff makes two categories of factual allegations on this point. Neither is sufficient.

First, plaintiff asserts in conclusory manner that L.C. was subject to unspecified racial bias. (See

Compl. ¶¶ 13, 26, 38, 41). But plaintiff provides no factual support for these statements. Second,

plaintiff alleges in similarly summary manner that L.C. was subjected to harassment, bullying, and

“extreme teasing,” but these statements draw no connection whatsoever between any of the alleged

acts and race. (See id. ¶¶ 13–28). The Davis framework requires that harassment be, as relevant

here, racial in nature. See, e.g., Fennell, 804 F.3d at 410–11; I.M., 2022 WL 3441835, at *7–8.

Plaintiff claims that defendants 1) made L.C. sit in a hallway; 2) falsely accused him of

bringing a lighter to school; 3) made a false child protective services report; and 4) wrongfully

punished L.C. for making allegedly unsubstantiated threats against the school. (See Compl. ¶¶

13–28). None of these allegations is linked in any way to race. Accordingly, they cannot support

a claim under the Davis framework, and plaintiff’s Davis claim fails. See Jennings v. Univ. of

N.C., 482 F.3d 686, 696 (4th Cir. 2007) (en banc) (discussing “sex-based” harassment in Title IX

Davis action); I.M., 2022 WL 3441835, at *7–8 (holding that clearly racially based harassment,

including the use of racial slurs, could support Davis claim); cf. Comcast Corp. v. Nat’l Ass’n of

African American-Owned Media, 589 U.S. 327, 340 (2020) (holding that a § 1981 plaintiff must

show that race was a but-for cause of the loss of a legally protected right).

Even if the court considered plaintiff’s supplemental factual submissions, this claim would

not survive. None of these improperly submitted allegations connects any conduct by any actor to

race, except for Dunbar’s statement in her affidavit that L.C. was bullied “mostly concerning our

African heritage.” (Suppl. Docs. (DE 14-1) 1). This bare allegation is substantively

indistinguishable from the conclusory statement that L.C. was subjected to unspecified racial bias

noted above. This claim would fail even if the court considered plaintiff’s additional submissions.

b. Discriminatory Discipline

Plaintiff’s response in opposition does not address or defend a theory of discriminatory

discipline against which defendants argue in furtherance of their motion. This constitutes an

abandonment of such theory. Nonetheless, the court will address it briefly.

A discriminatory discipline claim under Title IX requires a causal link between the

student’s sex and the challenged disciplinary proceeding. See Sheppard v. Visitors of Va. State

Univ., 993 F.3d 230, 236 (4th Cir. 2021). Applying this principle to a race-based claim here,

plaintiff fails to make any link between L.C.’s race and any of the disciplinary proceedings which

plaintiff challenges except a single conclusory statement that one disciplinary action involved

“racial bias.” (See Compl. ¶¶ 14, 16, 18–26). This claim fails for reasons similar to plaintiff’s

Davis claim, including how and why plaintiff’s additional submissions would not affect this

conclusion if considered.

In sum, plaintiff’s federal claim for violation of Title VI must be dismissed for failure to

state a claim upon which relief can be granted.

3. Negligent Supervision

Defendants contend that plaintiff’s claim for negligent supervision must be dismissed for

several reasons. The court agrees with respect to at least two of these grounds.

A negligent supervision claim under North Carolina has four elements: 1) a specific

negligent act on which the action is founded; 2) incompetency, by inherent unfitness or previous

specific acts of negligence from which incompetence may be inferred; 3) either actual notice to

the employer of such, or constructive notice by showing that the employer could have known the

facts through ordinary care; and 4) that the injury resulted from the incompetency proved. Medlin

v. Bass, 327 N.C. 587, 591 (1990).

The first element requires that an employee of the defendant have committed a tort against

the plaintiff. Pleasants v. Barnes, 19 S.E.2d 627, 629 (1942); Smith v. Privette, 128 N.C. App.

490, 494–95 (1998); Graham v. Hardee’s Food Sys., Inc., 121 N.C. App. 382, 385 (1996).

Plaintiff’s claim falters at this first step. Plaintiff asserts that unidentified employees of

defendants made him sit in a hallway without supervision, and wrongfully disciplined him. These

claims do not establish any torts under North Carolina law. As defendants note, these allegations

appear geared mainly towards plaintiff’s Title VI harassment claims, but harassment is not an

actionable tort under North Carolina law. See McLean v. Patten Cmtys., Inc., 332 F.3d 714, 719

(4th Cir. 2003).

Additionally and in the alternative, plaintiff fails to identify any inherent unfitness or

previous improper acts by any identified employees, as required under the second element. See

Bass, 327 N.C. at 591.

Plaintiff attempts to salvage this claim by pointing to the School Violence Prevention Act,

N.C. Gen. Stat § 115C-407.15 (the “SVPA”). (Pl’s Br. 11–12). But North Carolina law will not

read a private right of action into a statute when none appears in the text. See, e.g., Lea v. Grier,

156 N.C. App. 503, 508 (2003). And no private right of action appears in the SVPA. See N.C.

Gen. Stat. § 115C-407.15. Plaintiff therefore cannot base a claim on a violation of the SVPA. See

Benjamin v. Sparks, 173 F. Supp. 3d 272, 291 (E.D.N.C. 2016), aff’d, 986 F.3d 332 (4th Cir.

2021). Even if a violation of the SVPA constituted a privately actionable tort, the complaint would

still suffer from the second infirmity identified above: it identifies no employees and establishes

no inherent unfitness or previous improper acts under the tort’s second element. Plaintiff’s

additional submissions would not alter this conclusion, because they fail to identify any actionable

tort under North Carolina law, or any inherent unfitness or prior improper acts by any employees.

4. Intentional Infliction of Emotional Distress

Defendants finally argue that plaintiff does not adequately plead outrageous conduct as

required to support an IIED claim. The court agrees.

IIED under North Carolina law has three elements: 1) extreme and outrageous conduct by

the defendant; 2) which is intended to cause and does cause; 3) severe emotional distress to

another. Turner v. Thomas, 369 N.C. 419, 427 (2016). Whether conduct satisfies the first element

is a question of law. Johnson v. Bollinger, 86 N.C. App. 1, 6 (1987). The standard for such

conduct is high. E.g., Moody-Williams v. LipoScience, 953 F. Supp. 2d 677, 682–83 (E.D.N.C.

2013).

Plaintiff alleges, as noted, that L.C. was forced to sit in a hallway for much of his third

grade year, that defendants lodged a false child protective services report, and that L.C. was

wrongfully disciplined for two different incidents. (See Compl. ¶¶ 14, 16–22).

This conduct is not extreme or outrageous to the requisite degree. Similar allegations have

been held insufficient. See, e.g., Keziah v. W.M. Brown & Son, Inc., 888 F.2d 322, 326–27 (4th

Cir. 1989) (holding allegations of sex-based discrimination, and that plaintiff was “harassed [and]

humiliated” were insufficient); Dobson v. Harris, 134 N.C. App. 573, 578–79 (1999) (submitting

false child protective services report did not suffice), rev’d on other grounds, 352 N.C. 77 (2000);

Hogan v. Forsyth Cnty. Country Club Co., 79 N.C. App. 483, 493–94 (1986) (supervisor

“scream[ing]” at plaintiff, “interfere[ing]” with her responsibilities, and “thr[owing] menus at her”

did not suffice); Briggs v. Rosenthal, 73 N.C. App. 672, 677–78 (1985) (holding that unflattering

article about son killed in car crash did not suffice for IIED claim brought by grieving parents).

Nor do assertions of racially based misconduct automatically suffice. See, e.g., Thomas v.

N. Telecom, Inc., 157 F. Supp. 2d 627, 635 (M.D.N.C. 2000) (holding such allegations

“deplorable” but insufficient); Frazier v. First Union Nat’l Bank, 747 F. Supp. 1540, 1554

(W.D.N.C. 1990).

In contrast, for example, sufficient allegations include that police officers maliciously

framed a plaintiff for first-degree murder, Turner, 369 N.C. at 428, and that a university publicly

suggested a rape victim was to blame for the rape and underhandedly tricked the victim into

withdrawing from school. Rouse v. Duke University, 869 F. Supp. 2d 674, 681–82 (M.D.N.C.

2012).

Plaintiff’s claims are akin to the first group of cases cited above, not the latter. The

discipline of which plaintiff complains may have been unfair, but it does not rise to the level of

actionably extreme and outrageous conduct.

Plaintiff offers two responses to defendants’ arguments. Neither prevails.

First, plaintiff argues that defendants’ bungling of any investigation into alleged bullying

of L.C. constituted extreme and outrageous conduct. (See Pl’s Br. 12–13). The court disagrees.

As defendants persuasively argue, failure to investigate or correct the misconduct of others, or

failure to properly administer policies, does not suffice. See Doe v. Univ. of N.C. Sys., No. 1:23-

cv-41, 2024 WL 925549, at *14 (W.D.N.C. Mar. 4, 2024) (holding flawed Title IX investigation

which led to student’s expulsion did not constitute extreme conduct, and collecting similar cases);

Cash v. Lees-McRae Coll., Inc., No. 1:18-cv-52, 2018 WL 7297876, at *14 (W.D.N.C. Aug. 13,

2018) (failure to enforce policies). Plaintiff’s additional submissions again would not alter the

analysis, because they would add no new substance to this claim.

Second, plaintiff attempts to pivot to a negligent infliction of emotional distress claim. (See

Pl’s Br. 13). Such claim is conceivably pleaded, given that the complaint lodges a claim simply

for “infliction of emotional distress.” (Compl. 7).

The elements of this claim are 1) the defendant negligently engaged in conduct; 2) it was

reasonably foreseeable that such conduct would cause the plaintiff severe emotional distress; and

3) the conduct in fact caused such distress. See Johnson v. Ruark Obstetrics & Gynecology

Associates, P.A., 327 N.C. 283, 304 (1990).

Plaintiff fails to plead at least the first element here. As noted above, plaintiff fails to draw

any link between defendants and any of the alleged bullying which L.C. suffered, or between

defendants and any staff members who may have intervened. Such claims are in marked contrast

to the cases upon which plaintiff relies. In one, defendant doctors negligently failed to care for

plaintiff during pregnancy, resulting in the stillbirth of her child. See Johnson, 327 N.C. at 286–

87. In the other, defendant doctors negligently failed to inform plaintiff of the results of important

blood tests, resulting in the transmission of a serious genetic condition to the plaintiff’s child. See

McAllister v. Ha, 347 N.C. 638, 640 (1998).

Yet again, plaintiff’s improperly submitted additional allegations would not salvage this

claim. They do not reveal that any employee of defendants had any role in any bullying, or that

any might have intervened. Interviews with teachers in these documents reflect their perception

that L.C. was not bullied, and that in fact other students merely defended themselves from him,

but plaintiff does not allege that such perception was negligently formed or held. (See Suppl.

Docs. 14–15). Indeed, Dunbar’s affidavit affirmatively states that the cause of L.C.’s distress was

the death of his father during his enrollment. (See id. 1). Plaintiff’s attempt to pivot plaintiff’s

claim to a negligent infliction basis fails.

CONCLUSION

For the forgoing reasons, defendants’ motion to dismiss (DE 12) is GRANTED. Plaintiff's

claims are dismissed for failure to state a claim under Rule 12(b)(6). The clerk is DIRECTED to

close this case.

SO ORDERED, this the 19th day of July, 2024.

LOUISE W. FLANAGAN

United States District Judge

12