Ammirante v. Ohio County Board of Education

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

LINDSAY AMMIRANTE, AUTUMN TROULLOS

and RACHEL MILLER,

Plaintiffs,

v. Civil Action No. 5:19CV12

(STAMP)

OHIO COUNTY BOARD OF EDUCATION,

JOE KOLB, Principal, in his

individual and official capacities,

KIMBERLY S. MILLER, Superintendent,

in her individual and official capacities

and RICK JONES, Assistant Superintendent,

individually and in his official capacity,

Defendants.

MEMORANDUM OPINION AND ORDER

GRANTING DEFENDANT JOE KOLB’S

MOTION TO DISMISS COMPLAINT

I. Background

The plaintiffs, Lindsay Ammirante (“Ammirante”), Autumn

Troullos (“Troullos”), and Rachel Miller (“Miller”), filed a

complaint in the Circuit Court of Ohio County, West Virginia. ECF

No. 1-1. The defendants, the Ohio County Board of Education

(“OCBOE”), Kimberly S. Miller (“Miller”), and Rick Jones (“Jones”)

then removed this civil action to the United States District Court

for the Northern District of West Virginia. ECF No. 1. The

complaint alleges that the defendants were deliberately indifferent

in responding to a “sexual predator,” defendant Joe Kolb (“Kolb”),

vice principal or principal at Bridge Street Middle School, on

school premises. ECF No. 1-1 at 1-5. The plaintiffs, female

teachers working in that school, contend that such conduct denied

them access to educational activities and employment. Id.

Specifically, plaintiffs state that one teacher had to take a leave

of absence, another transferred to another school, and one is

actively seeking employment elsewhere. Id. at 5. Plaintiffs

contend that: (1) defendants OCBOE, Miller, and Jones were

negligent (Counts I and II); (2) defendants OCBOE, Miller, and

Jones conspired to commit plaintiffs’ alleged violations (Count

III); (3) defendant Kolb intentionally inflicted mental, physical,

and emotional distress upon plaintiffs (Count IV); (4) defendant

OCBOE violated Title IX by creating and/or subjecting plaintiffs to

a hostile educational environment, by persisting in its actions and

inactions after having actual knowledge of plaintiffs’ harms and

retaliation in addressing such harms, and by engaging in a pattern

and practice of behavior designed to discourage and dissuade female

employees who had been sexually harassed and retaliated against

from seeking protection and from seeking to have sexual harassment

be fully investigated (Counts V and VI); (5) defendants OCBOE,

Kolb, Miller, and Jones violated 42 U.S.C. § 1983 (Counts VII and

VIII); and (6) defendants OCBOE, Kolb, Miller, and Jones violated

the West Virginia Human Rights Act (“WVHRA”) (Count IX). Id. at

5-26. Plaintiffs seek compensatory and punitive damages, statutory

interest, costs, and reasonable attorneys’ fees, and injunctive

relief requiring OCBOE to take effective steps to prevent sex-based

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discrimination and harassment in its education programs, to fully

investigate conduct that may constitute sex-based harassment, to

appropriately respond to all conduct that may constitute sex-based

harassment, and to mitigate the effects of harassment. Id.

at 26-27.

Defendant Kolb filed a motion and memorandum to dismiss

plaintiffs’ complaint. ECF Nos. 6 and 7. In his memorandum,

defendant Kolb first contends that he is entitled to qualified

immunity from most factual claims alleging wrongdoing in his

individual capacity. Id. at 3-5. Defendant Kolb states that

“significant portions of [p]laintiffs’ complaint are discretionary

acts which clearly do not ‘violate clearly established statutory or

constitutional rights of which a reasonable person would have

known,’ and are therefore protected by qualified immunity.” Id.

at 4. Second, defendant Kolb asserts that plaintiffs’ claims based

on intentional infliction of emotional distress and § 1983 do not

state claims upon which relief may be granted, specifically stating

that plaintiffs did not set forth facts to make plaintiffs’ hostile

work environment or sexual harassment claims plausible. Id. at

5-17. Third, defendant Kolb asserts that plaintiffs do not allege

actionable claims for retaliation under § 1983 since the plaintiffs

do not set forth factual allegations that they have suffered a

materially adverse employment action for purposes of a

discrimination claim. Id. at 18-19. Fourth, defendant Kolb

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contends that plaintiffs’ WVHRA claims and/or hostile workplace

claims do not state claims upon which relief may be granted,

applying the same analysis set forth in his response to plaintiffs’

claims under Title VII and § 1983. Id. at 20-21. Fifth, defendant

Kolb asserts that plaintiffs’ claims against him in his official

capacity must be dismissed as duplicative of claims against OCBOE.

Id. at 21-22. Lastly, defendant Kolb contends that the Title IX

claims must be dismissed since such claims cannot be brought

against individual defendants. Id. at 22.

Plaintiffs then filed a response in opposition to defendant

Kolb’s motion to dismiss. ECF No. 12. First, plaintiffs contend

that defendant Kolb is not entitled to qualified immunity since

plaintiffs’ sexual harassment allegations are in violation of the

Equal Protection Clause of the United States Constitution and

federal law, and satisfy all pleading requirements. Id. at 5-7.

Moreover, plaintiffs state that defendant Kolb’s attempt to request

dismissal of some claims based on “discretionary conduct” is

without merit, since isolating defendant Kolb’s alleged actions

into separate and distinct incidents ignores plaintiffs’ claims of

retaliation. Id. at 7. Plaintiffs further assert that whether

defendant Kolb’s actions were unlawful are issues that a jury

should decide. Id. at 8. Second, plaintiffs state that they have

sufficiently pled a claim for intentional infliction of emotional

distress, and that determining what amounts to “extreme and

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outrageous” for purposes of a claim for intentional infliction of

emotional distress is a determination made by the finder of fact,

not based solely on allegations in the complaint, citing Travis v.

Alcon Labs., Inc., 202 W. Va. 369, 375-76, 504 S.E.2d 419, 425-26

(1998). Id. at 10-14. Third, plaintiffs contend that they have

sufficiently pleaded claims of sexual harassment and retaliation

under § 1983 because plaintiffs are not required to establish a

prima facie case in their complaint, stating that the “prima facie”

standard is imposed upon a complainant in a Title VII claim when

proving, not when stating, a claim, citing McDonnell Douglas Corp.,

v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973),

and Swierkiewicz v. Sorema N.A., 54 U.S. 506, 515 (2002).

Similarly, plaintiffs contend that they have alleged actionable

claims of retaliation under § 1983 and the WVHRA for sexual

harassment and a hostile workplace environment against defendant

Kolb since they are not required to prove their claims in the

complaint. Id. at 17-19. Plaintiffs then assert that dismissal of

defendant Kolb in his official capacity would only be permissible

as to claims made under § 1983, but defendant Kolb may be held

individually liable under § 1983. Id. at 19-20. Lastly,

plaintiffs note that they have not stated any claim against

defendant Kolb under Title IX. Id. at 20.

Defendant Kolb then filed a reply in support of his motion to

dismiss plaintiffs’ complaint. ECF No. 13. First, defendant Kolb

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asserts that plaintiffs do not allege sufficient facts to make any

of their claims based on intentional infliction of emotional

distress, sexual harassment and retaliation under § 1983, and the

claim based on the WVHRA plausible under Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009), or Bell Atlantic Corp. v. Twombly, 550 U.S.

544 (2007). Id. at 3-6. Specifically, with respect to plaintiffs’

claims based on intentional infliction of emotional distress,

defendant Kolb states that plaintiffs’ response does not offer any

case where such a claim with similar facts was upheld by a court;

and, therefore, plaintiffs do not demonstrate “plausibility” that

their complaint can be successful. Id. at 7. Moreover, defendant

Kolb cites Travis, 202 W. Va. at 377-378, for support that a court,

not a jury, decides whether conduct may reasonably be considered

extreme and outrageous for purposes of a claim based on intentional

infliction of emotional distress. Id. at 8. With respect to

plaintiffs’ § 1983 claims, defendant Kolb states that plaintiffs’

allegations are not sufficiently severe or pervasive to establish

claims based on sexual harassment and retaliation, and that most

facts are not based on plaintiffs’ sex. Id. at 10-12. Defendant

Kolb asserts that plaintiffs are required to allege facts which

plausibly satisfy the elements of a statutory cause of action,

citing Woods v. City of Greensboro, 855 F.3d 639, 648 (4th Cir.

2017). Id. at 12. Second, defendant Kolb contends that

plaintiffs’ assertion that discretionary administrative actions are

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indicia of retaliation is without merit, since plaintiffs have not

demonstrated that defendant Kolb maintained and reinforced a

hostile work environment. Id. at 13-15. Therefore, defendant Kolb

concludes, “significant portions of [his] allegedly discriminatory

or hostile behavior are discretionary acts which clearly do not

‘violate clearly established statutory or constitutional rights of

which a reasonable person would have known,’ and are therefore

protected by qualified immunity.” Id. at 15.

II. Applicable Law

In assessing a motion to dismiss for failure to state a claim

under Rule 12(b)(6), a court must accept all well-pled facts

contained in the complaint as true. Nemet Chevrolet, Ltd v.

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

However, “legal conclusions, elements of a cause of action, and

bare assertions devoid of further factual enhancement fail to

constitute well-pled facts for Rule 12(b)(6) purposes.” Id.

(citing Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). This

Court also declines to consider “unwarranted inferences,

unreasonable conclusions, or arguments.” Wahi v. Charleston Area

Med. Ctr., Inc., 562 F.3d 599, 615 n.26 (4th Cir. 2009).

The purpose of a motion under Rule 12(b)(6) is to test the

formal sufficiency of the statement of the claim for relief; it is

not a procedure for resolving a contest about the facts or the

merits of the case. 5B Charles Alan Wright & Arthur R. Miller,

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Federal Practice and Procedure § 1356 (3d ed. 1998). The Rule

12(b)(6) motion also must be distinguished from a motion for

summary judgment under Federal Rule of Civil Procedure 56, which

goes to the merits of the claim and is designed to test whether

there is a genuine issue of material fact. Id. For purposes of

the motion to dismiss, the complaint is construed in the light most

favorable to the party making the claim and essentially the court’s

inquiry is directed to whether the allegations constitute a

statement of a claim under Federal Rule of Civil Procedure 8(a).

Id. § 1357.

A complaint should be dismissed “if it does not allege ‘enough

facts to state a claim to relief that is plausible on is face.’”

Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Facial

plausibility is established once the factual content of a complaint

‘allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.’” Nemet Chevrolet,

591 F.3d at 256 (quoting Iqbal, 129 S. Ct. at 1949). Detailed

factual allegations are not required, but the facts alleged must be

sufficient “to raise a right to relief above the speculative

level.” Twombly, 550 U.S. at 555.

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III. Discussion

This Court has reviewed the complaint in the light most

favorable to the plaintiffs, and finds that the allegations

asserted against defendant Kolb, even when assumed as true, are

insufficient, as a matter of law, to proceed.

A. Plaintiffs have failed to sufficiently plead their claims based

on 42 U.S.C. § 1983

With respect to plaintiffs’ claims under § 1983, plaintiffs

allege that defendant Kolb deprived them of their constitutional

right to equal protection, and laws protecting against a sexually

hostile work environment and sexual discrimination. Defendant

Kolb argues (1) that plaintiffs have failed to state a claim under

§ 1983 and (2) that, in any event, he is entitled to qualified

immunity.

Section 1983 creates a cause of action for a person deprived

of “any rights, privileges, or immunities secured by the

Constitution and laws” by any person acting under color of state

law. 42 U.S.C. § 1983. “[T]he equal protection clause confers on

a public employee a federal constitutional right to be free from

gender discrimination.” Beardsley v. Webb, 30 F.3d 524, 530-31

(4th Cir. 1994). “[S]exual harassment has long been recognized to

be a type of gender discrimination.” Id. Moreover, Title VII

protects against hostile or abusive work environments due to sexual

discrimination and discrimination against an employee in

retaliation for the employee’s opposing the employer’s illegal

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discrimination practices or participating in Title VII enforcement

proceedings. 42 U.S.C. § 2000e-3(a).

The Court will address each potential theory of liability in

turn.1

1. Hostile or Abusive Work Environment

“Under Title VII and . . . § 1983, the elements of the

required prima facie case are the same.”2 Gairola v. Com. of Va.

Dep’t of Gen. Servs., 753 F.2d 1281, 1285-86 (4th Cir. 1985); see

also Beardsley, 30 F.3d at 529 (“Courts may apply the standards

developed in Title VII litigation to similar litigation under

§ 1983.”). A plaintiff must prove that:

1Plaintiffs claim that defendant Kolb violated section 1983 by

subjecting them to sexual harassment in the workplace, creating a

hostile work environment, and retaliation. “Intentional sexual

harassment of a public employee by a supervisor constitutes gender

discrimination in violation of the Equal Protection Clause of the

Fourteenth Amendment and is actionable under section 1983.” Riley

v. Buckner, 1 F. App’x 130, 133 (2001) (citing Beardsley, 30 F.3d

at 529 (4th Cir. 1994)). The Fourth Circuit has also indicated

that it “applies the standards developed for hostile work

environment claims under Title VII to claims for sexual harassment

under section 1983.” Riley, 1 F. App’x at 133. “Courts may apply

Title VII standards to this type of equal protection claim.” Young

v. Housing Auth. of Baltimore City, 2017 WL 5257127, *13 (D. Md.

Nov. 13, 2017).

2This Court notes that plaintiffs are not required to plead

facts that constitute a prima facie case to survive a motion to

dismiss. See Miller v. Carolinas Healthcare System, 561 F. App’x

239, 241 (4th Cir. 2014); however, the Fourth Circuit “has

recognized that Swierkiewicz [v. Sorema N.A., 534 U.S. 506, 122 S.

Ct. 992, 152 L.Ed.2d 1 (2002)] ‘left untouched the burden of a

plaintiff to allege facts sufficient to state all the elements of

[a] claim.’” Miller, 561 F. App’x at 241 (quoting Jordan v.

Alternative Res. Corp., 458 F.3d 332, 346 (4th Cir. 2006)).

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(1) the subject conduct was unwelcome; (2) it was based

on the sex of the plaintiff; (3) it was sufficiently

severe or pervasive to alter the plaintiff’s conditions

of employment and to create an abusive work environment;

and (4) it was imputable on some factual basis to the

employer.

Spicer v. Com. of Va. Dep’t of Corr., 66 F.3d 705, 710 (4th Cir.

1995); see also Ocheltree v. Scollon Prods., Inc., 335 F.3d 325,

331 (4th Cir. 2003).

A defendant violates Title VII “[w]hen the workplace is

permeated with ‘discriminatory intimidation, ridicule, and insult,’

that is ‘sufficiently severe or pervasive to alter the conditions

of the victim’s employment and create an abusive working

environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 11

S. Ct. 367, 370 (1993) (quoting Meritor Savings Bank, FSB v.

Vinson, 477 U.S. 57, 65, 106 S. Ct. 2399, 2405 (1986)) (internal

citations omitted); see also Ocheltree, 335 F.3d at 331.

[W]hether an environment is ‘hostile’ or ‘abusive’ can be

determined only by looking at all the circumstances.

These may include the frequency of the discriminatory

conduct; its severity; whether it is physically

threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an

employee’s work performance. The effect on the

employee’s psychological well-being is, of course,

relevant to determining whether the plaintiff actually

found the environment abusive. But while psychological

harm, like any other relevant factor, may be taken into

account, no single factor is required.

Harris, 510 U.S. at 23.

The United States Court of Appeals for the Fourth Circuit has

“recognized that plaintiffs must clear a high bar in order to

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satisfy the severe or pervasive test.” EEOC v. Sunbelt Rentals,

Inc., 521 F.3d 306, 315 (4th Cir. 2008). A court must consider

“the objective severity of harassment . . . from the perspective of

a reasonable person in the plaintiff’s position, considering ‘all

the circumstances.’” Oncale v. Sundowner Offshore Servs., Inc.,

523 U.S. 75, 81, 118 S. Ct. 998, 1003 (1998) (quoting Harris, 510

U.S. at 23, 114 S. Ct. at 371).

This Court finds that the facts, even when taken as true, do

not demonstrate that, under the circumstances, a reasonable person

in plaintiffs’ positions would be significantly affected. This

Court will proceed to analyze defendant Kolb’s actions as they

pertain to each plaintiff in turn.

a. Plaintiff Ammirante

Plaintiff Ammirante alleges that defendant Kolb: (1) sent her

profane texts (ECF No. 1-1 at 8); (2) visited her classroom more

than any other teacher (id.); (3) required her to change her hockey

jersey on dress-down day (id. at 9); (4) required her to use half-

days for out-of-school appointments (id.); (5) allowed an assistant

principal to attend her class every period for a few days (id. at

11); yelled at her during a non-school baseball game (id. at 12);

and (6) placed harassing comments on plaintiff’s Facebook account

and social media under what appears to plaintiff as fake names (id.

at 14). This Court finds that a reasonable juror could not label

such conduct as “physically threatening or humiliating” or

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“severe.” Plaintiff Ammirante has failed to point out an act that

would be fairly characterized as “severe.”

The Fourth Circuit has found the required “severity” and

“pervasiveness” to have been met in cases with facts that

demonstrate why plaintiff Ammirante has failed to plead sufficient

facts here. For example, in Smith v. First Union Nat’l Bank, 202

F.3d 234, 242 (4th Cir. 2000), the Fourth Circuit found that the

defendant’s conduct that consisted of “repeated remarks that

belittled her because she was a woman” was “severe or pervasive.”

Id. The defendant in that case “directed insults at [plaintiff] on

a regular basis; [defendant] made many of the remarks at least once

a month.” Id. Moreover, “[defendant] often concluded his orders

to [plaintiff] by saying ‘or else you’ll see what will happen to

you.’ Further, [defendant] made [a] ‘slit a woman’s throat’ remark

in the context of physically threatening gestures.” Id. In that

case, the Fourth Circuit contrasted the situation to Hartsell v.

Duplex Prod., Inc., 123 F.3d 766 (4th Cir. 1997), where the Court

found that “four isolated, nonthreatening remarks by coworkers” was

insufficient to establish a Title VII claim. Id. Similarly, the

Fourth Circuit has found that a complaint alleging sexual

harassment under Title VII should not be dismissed as a matter of

law when there was evidence that the defendant made sexually

suggestive remarks to plaintiff, kissed and rubbed his hands on her

back, even after being told to stop, and entered into plaintiff’s

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apartment. Paroline v. Unisys Corp., 879 F.2d 100, 103 (4th Cir.

1989), opinion vacated in part on reh’g on other grounds, 900

F.2d 27 (4th Cir. 1990).

Moreover, the Fourth Circuit has determined various cases

alleging facts similar to the case at hand, finding that the

allegedly offensive behavior was not sufficiently severe or

pervasive to constitute sexual harassment. For example, in

Singleton v. Department of Correctional Educ., 115 F. App’x 119,

122 (4th Cir. 2004), the Court determined that the plaintiff’s

allegations that defendant “made offensive comments, showed her

unwanted attention that made her uncomfortable, and continuously

expressed a sexual interest in her d[id] not meet the high standard

set forth under Title VII.” Id. The Court indicated that “[t]he

conduct that she complain[ed] of, though boorish and offensive, is

more comparable to the kind of rude behavior, teasing, and offhand

comments that the Court [has] held are not sufficiently severe and

pervasive to constitute actionable sexual harassment.” Id.

Moreover, in Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 754

(4th Cir.), cert denied, 519 U.S. 818, 117 S. Ct. 70, 136 L.Ed.2d

30 (1996), the Fourth Circuit explained that a supervisor’s alleged

harassment by sexual innuendos, jokes, and physical contact did not

create a sufficiently hostile work environment. In support of that

conclusion, the Court cited Baskerville v. Culligan Intern. Co., 50

F.3d at 428, 430-31, where the Seventh Circuit overturned a verdict

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because evidence that a supervisor called the victim a “pretty

girl,” commented on her clothes, and made “vulgar banter tinged

with sexual innuendo” did not rise to the level required to

establish an actionable Title VII claim. See also Hopkins, 77 F.3d

at 752. See also Green v. Duie Pyle, Inc., 170 F. App’x 853 (4th

Cir. 2006) (holding that despite prevalence of pornography and

sexual comments in the workplace, the plaintiff failed to establish

sufficient “severity or pervasiveness”); Dwyer v. Smith, 867 F.2d

184, 187-89 (4th Cir. 1989) (finding that a plaintiff’s allegations

that she was subject to pornographic material in her mailbox, was

accused of having sex with workers, and was subject to sexually

explicit conversations was not “severe or pervasive”); Lacy v.

Amtrak, 205 F.3d 1333 (4th Cir. 2000) (holding that a one-time slur

does not meet the requirement that the discriminatory conduct is

“severe or pervasive”).

This Court notes that while case law serves as guidance where

certain conduct would satisfy a plaintiff’s burden on the “severe

or pervasive” element, this Court has not limited the applicable

analysis only to instances where those precise behaviors are

alleged to have occurred. See Walker v. Mod-U-Kraf Homes, LLC, 775

F.3d 202, 209 (4th Cir. 2014). However, even when viewing the

evidence in the light most favorable to plaintiff Ammirante, the

facts in the complaint, even when assumed as true, are insufficient

to meet the “severe or pervasive” standard. Her allegations do not

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allege that defendant Kolb ever requested a sexual act or touched

her inappropriately. Even though profane texts may be insufficient

to establish liability on their own, plaintiff Ammirante fails to

indicate or suggest that in such allegedly profane texts defendant

Kolb discussed sexual subjects or showed her obscene materials.

Neither did plaintiff Ammirante plead facts alleging that defendant

Kolb threatened her.3 Nor does plaintiff Ammirante allege

sufficient facts that demonstrate that defendant Kolb’s behavior

interfered with her ability to perform her job.

While defendant Kolb’s conduct, as alleged in the complaint,

can certainly be characterized as boorish, offensive, and, at a

minimum, as unprofessional, the circumstances here, viewed in the

light most favorable to plaintiff Ammirante, do not reach the level

in which “a reasonable trier of fact could conclude ‘that the

environment was pervaded with discriminatory conduct aimed to

humiliate, ridicule, or intimidate, thereby creating an abusive

3Plaintiff Ammirante states in the complaint that after a

meeting regarding defendant Kolb’s alleged actions, defendant Kolb

yelled at a baseball game: “Don’t worry. You’re going to get

yours. It’s coming. You want to go to the board office, you’ll

get yours. Go file that paperwork. You’ll all get yours. It’s

coming to all of you.” ECF No. 1-1 at 12. However, these

statements are ambiguous, and it is not clear whether defendant was

specifically addressing Ammirante. Moreover, it seems that

defendant Kolb yelled at plaintiff Ammirante, this instance. In

Hopkins, 77 F.3d at 753, the Fourth Circuit dismissed a claim, for

among other reasons, because the conduct by defendant was

“temporally diffuse, ambiguous, and often not specifically directed

at [plaintiff].”

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atmosphere.’”4 Id. (citing EEOC v. Cent. Wholesalers, Inc., 573

F.3d 167, 176). As the Fourth Circuit has made clear, incidents

that are questionably severe, and are more offensive than

physically threatening or humiliating do not satisfy the objective

analysis required of the “severe or pervasive” element of a

plaintiff’s prima facie case. Green v. Caldera, 19 F. App’x 79, 80

(4th Cir. 2001).

Moreover, several of the allegedly offensive actions

catalogued by plaintiff Ammirante do not seem to be even related to

her gender. The Fourth Circuit has made it clear that “only

harassment that occurs because of the victim’s gender is

actionable.” Hartsell, 123 F.3d at 771; see also Hopkins, 77 F.3d

at 751 (“Title VII does not reach discrimination based on [ ]

reasons, such as the employee’s sexual behavior, prudery, or

vulnerability”); McWilliams v. Fairfax Cty. Bd. of Supervisors, 72

F.3d 1191, 1196 (4th Cir.) (finding “[the harasser’s] vulgarity and

insensitivity and meanness of spirit” insufficient to establish a

Title VII hostile work environment claim), cert denied, 519 U.S.

819, 117 S. Ct. 72, 136 L.Ed.2d 32 (1996). Here, some of the

conduct is sexually neutral or, at most, ambiguous. While such

conduct may be tasteless and inappropriate, this Court cannot

conclude that such conduct was “of the type that would interfere

4As noted below, this description of defendant Kolb’s alleged

conduct would apply to his conduct as to the other plaintiffs as

well.

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with a reasonable person’s work performance . . . to the extent

required by Title VII.” Hopkins, 77 F.3d 745, 753-54 (4th Cir.

1996) (citing Morgan v. Massachusetts Gen. Hosp., 901 F.2d 186, 193

(1st Cir. 1990)).5

Because this Court concludes that defendant Kolb’s conduct

does not constitute sexual harassment, defendant Kolb’s motion to

dismiss is granted with respect to plaintiff Ammirante’s § 1983

claim based on Title VII and the Equal Protection Clause.

b. Plaintiff Troullos

Plaintiff Troullos alleges that defendant Kolb: (1) once tried

to open the bathroom door while she was in the bathroom and laughed

in her face about the incident (ECF No. 1-1 at 6); (2) once looked

at or ogled her, including staring at her up and down (id. at 6-7);

(3) made four statements that included: (a) the way clothes looked

on her (id. at 6), (b) a comment about how “cum . . . just goes

everywhere” (id.), (c) that he was devastated when she was pregnant

(id. at 7), and (d) that plaintiff “like[s] meat” (id.); (4) that

plaintiff was reassigned to a different grade over her objection

(id. at 7); (5) that various teachers and students commented that

defendant Kolb is always trying to flirt with plaintiff Troullos

5This Court notes that the complaint even suggests some other

motive for some of the alleged actions, indicating that plaintiff

Ammirante is a relative of defendant Kolb’s ex-wife and that during

and after his separation and divorce from his ex-wife, defendant

Kolb “commenced a campaign to harass and intimidate [p]laintiff

Ammirante.” ECF No. 1-1 at 8.

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(id. at 7); (6) that defendant Kolb repeatedly came into plaintiff

Troullos’ classroom and would not comment to plaintiff except to

ask if plaintiff Ammirante did any work (id. at 8); and (7) that

she is forced to take a half day for appointments (id. at 9).

Applying the same standard set forth above, plaintiff

Troullos’ allegations, even if assumed as true, do not describe the

degree of severity or pervasiveness necessary to create a hostile

work environment. Moreover, similar to the allegations brought

forth by plaintiff Ammirante, many of these allegations do not seem

to be even related to her gender.

Because this Court concludes that defendant Kolb’s conduct

does not constitute sexual harassment, defendant Kolb’s motion to

dismiss is granted with respect to plaintiff Troullos’ § 1983 claim

based on Title VII and the Equal Protection Clause.

c. Plaintiff Miller

Plaintiff Miller alleges that defendant Kolb: (1) once tried

to open the bathroom door while she was in the bathroom and that

after she exited the bathroom he said that he thought she was

plaintiff Troullos and laughed (ECF No. 1-1 at 6); and (2)

plaintiff Miller was forced to take half-days (id. at 9). Again,

applying the same standard set forth above, and after careful

review, this Court is convinced that the conduct of which plaintiff

Miller complains was neither sufficiently severe nor sufficiently

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pervasive to create an environment that a reasonable person would

find hostile or abusive.

Moreover, the second allegedly offensive action mentioned

above does not seem to be even related to her gender. Defendant

Kolb’s action seems to be sexually neutral or, at most, ambiguous.

Because this Court concludes that defendant Kolb’s conduct

does not constitute sexual harassment, defendant Kolb’s motion to

dismiss is granted with respect to plaintiff Miller’s § 1983 claim

based on Title VII and the Equal Protection Clause.

2. Retaliation

The plaintiffs also allege a retaliation claim against

defendant Kolb. For example, plaintiff Troullos alleges that she

“was forced to move grades and teach a different grade over her

objection.” ECF No. 1-1 at 7. Moreover, the complaint states that

defendant Kolb used “pseudonyms to continue to harass and bully

[p]laintiff Ammirante on social media in retaliation for being

reported to [d]efendant [OCBOE].” Id. at 1-1. Lastly, the

plaintiffs all allege that “after filing complaints, [they] [were]

forced to take half days instead of being allowed to obtain

coverage for appointments.” Id. at 9. Further, due to defendant

Kolb’s conduct, plaintiff Troullos alleges that she was forced to

take a leave of absence, and plaintiff Ammirante alleges that she

20

was forced to leave the middle school she was employed, and that

they were thus constructively discharged.6 Id. at 26.

To establish a prima facie case of retaliation, the plaintiffs

must show that (1) they were engaged in a protected activity; (2)

defendant Kolb took an adverse employment action against them; and

(3) there was a causal link between the protected activity and the

adverse action. Williams v. Silver Spring Volunteer Fire Dep’t, 86

F. Supp. 2d 398, 417 (4th Cir. 2015). The plaintiffs have not

pleaded sufficient facts of retaliation.

First, plaintiffs engaged in protected activity by reporting

defendant Kolb’s actions and addressing their concerns. Id.; see

also Laughlin v. Metro Washington Airports Auth., 149 F.3d 253, 259

(4th Cir. 1998) (“[Protected] activity encompasses utilizing

informal grievance procedures as well as staging informal protests

and voicing one’s opinions in order to bring attention to an

employer’s discriminatory activities.”).

In order to determine whether there is an adverse employment

action “for a retaliation claim, a plaintiff need only show that

she suffered an action that was ‘materially adverse,’ meaning that

the action ‘might have dissuaded a reasonable worker from making or

supporting a charge of discrimination.’ Williams, 86 F. Supp. 3d

6The complaint specifically references defendant OCBOE and not

defendant Kolb with respect to constructive discharge; however,

this Court will analyze defendant Kolb’s alleged precipitating

actions that may have led to plaintiffs’ alleged constructive

discharge.

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at 418 (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.

53, 68, 126 S. Ct. 2405, 165 L.Ed.2d 345 (2006)). Significant

changes in employment include changes “in employment status, such

as hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a decision causing a

significant change in benefits.” Burlington Indus., Inc. v.

Ellerth, 524 U.S. 742, 761 (1998); see also James v. Booz-Allen

Hamilton, 368 F.3d 371, 375 (4th Cir. 2001) (requiring a

“discriminatory act which adversely affects the terms, conditions,

or benefits of the plaintiff’s employment”). “Typical indicators

of an adverse employment action include a decrease in pay, a

demotion, loss of job title or supervisory responsibility, and loss

of opportunities for advancement.” Auriemma v. Logan’s Roadhouse,

Inc., 2012 WL 5844967, *3 (W.D. Va. Nov. 19, 2012) (citing Boone v.

Goldin, 178 F.3d 253, 255 (4th Cir. 1999)). With respect to

constructive discharge, “an employee is constructively discharged

‘if an employer deliberately makes the working conditions of the

employee intolerable in an effort to induce the employee to quit.’”

Whitten v. Fred’s Inc., 601 F.3d 231, 248 (4th Cir. 2010) (quoting

Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1353-54 (4th Cir.

1995)). “However, mere dissatisfaction with work assignments, a

feeling of being unfairly criticized, or difficult or unpleasant

working conditions are not so intolerable as to compel a reasonable

person to resign.” James v. Booz-Allen & Hamilton, Inc., 368 F.3d

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371, 378 (4th Cir. 2004) (internal quotation marks and alterations

omitted).

Here, plaintiffs fail to plead sufficient facts, even when

assumed as true, that are sufficient to constitute as adverse

employment actions. The facts do not plausibly support that the

plaintiffs were subject to adverse employment actions because such

actions do not constitute “significant change[s] in employment

status” necessary to a retaliation claim. The facts also do not

plausibly show the intolerability requirement necessary for

constructive discharge. Accordingly, this Court grants defendant

Kolb’s motion to dismiss plaintiffs’ retaliation claims.

3. Qualified Immunity

Defendant Kolb claims that he is entitled to qualified

immunity. Plaintiffs must show that (1) defendant Kolb violated

their right to be free from discrimination and a hostile work

environment and (2) the right was clearly established at the time

of the events at issue. Graham v. Gagnon, 831 F.3d 176, 182 (4th

Cir. 2016). For the reasons stated above, plaintiffs have failed

to show a violation of their rights; therefore, the issue of

whether defendant Kolb is entitled to qualified immunity need not

be determined.

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B. Plaintiffs have failed to sufficiently plead their claims based

on the West Virginia Human Rights Act

The West Virginia Supreme Court of Appeals has observed that

similar standards for evaluating hostile work environment claims

have been adopted and applied in both federal and state courts.

Erps v. W. Va. Human Rights Comm’n, 224 W. Va. 126, 680 S.E.2d 371,

379 (2009).

A claim for sexual harassment under the West Virginia Human

Rights Act, W. Va. Code, § 5-11-1 et seq., based on a hostile or

abusive work environment requires that the plaintiff prove:

(1) the subject conduct was unwelcome; (2) it was based

on the sex of the plaintiff; (3) it was sufficiently

severe or pervasive to alter the plaintiff’s conditions

of employment and create an abusive work environment; and

(4) it was imputable on some factual basis to the

employer.

Syl. Pt. 5, Hanlon v. Chambers, 195 W. Va. 99, 464 S.E.2d 741, 745

(1995); see also West Virginia Code of State Regulations § 77-4-2.2

(“Unwelcome sexual advances, requests for sexual favors, and other

verbal or physical conduct of a sexual nature constitute sexual

harassment when . . . [s]uch conduct has the purpose or effect of

unreasonably interfering with an individual’s work-performance or

creating an intimidating, hostile, or offensive working

environment.”).

“Whether an environment is hostile or abusive can be

determined only by considering all the circumstances, which may

include the frequency of the discriminatory conduct; its severity;

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whether it is physically threatening or humiliating, or a mere

offensive utterance; and whether it unreasonably interferes with an

employee’s work performance.” Erps, 680 S.E.2d at 379.

Moreover, West Virginia Code of State Regulations § 77-4-1, et

seq. provides guidelines for interpreting the WVHRA’s prohibition

against discrimination on the basis of sex by sexual harassment,

specifically providing guidance as to whether alleged sexual

harassment is sufficiently severe or pervasive. W. Va. Code R.

§ 77-4-1. Factors that may be considered include: (1) the presence

of unwelcome physical touching; (2) offensive or threatening verbal

abuse; (3) unwelcome or consistent sexual innuendo or physical

contact; and (4) the frequency of the unwelcome and offensive

encounters. W. Va. Code R. § 77-4-2.4. The regulation explains

that “[a] person who has been harassed on an isolated basis may

offer evidence of harassment suffered by other employees as proof

that the harassment was pervasive or severe.” Id.

In light of the marked similarities between the federal and

state standards, for the reasons discussed above with respect to

plaintiffs’ § 1983 claims, this Court concludes that plaintiffs’

WVHRA hostile work environment claims also fail on the third and

perhaps second elements because even if the Court accepts all the

allegations in the complaint as true, the facts do not support the

conclusion that the unwelcome conduct of which plaintiffs complain

was sufficiently severe or pervasive to alter their conditions of

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employment and create an abusive work environment. Moreover,

several of the claims do not seem to be related to the plaintiffs’

gender, is sexually neutral or, at most, ambiguous.

Additionally, as unique to the plaintiffs’ WVHRA claims, none

of the factors in the West Virginia Code of Regulations § 77-4-2

compel a contrary conclusion. The complained of conduct did not

involve physical touching or the verbal abuse that has been found

to be sufficient for such a claim in prior case law. To the extent

that plaintiffs allege facts that may be similar, such may provide

additional evidence of harassment but this Court cannot find that

it is sufficient to establish that such harassment was pervasive or

severe. In consideration of these factors, this Court finds that

the complained-of harassment was not pervasive or severe under the

framework articulated by the Supreme Court of West Virginia and the

West Virginia Code of Regulations.

Therefore, this Court concludes that defendant Kolb’s motion

to dismiss is granted with respect to plaintiffs’ WVHRA hostile

work environment claims.

C. Plaintiffs have failed to sufficiently plead their claims for

intentional infliction of emotional distress

To prevail on a claim for intentional infliction of emotional

distress/tort of outrage, a plaintiff must show the following four

elements:

(1) that the defendant’s conduct was atrocious,

intolerable, and so extreme and outrageous as to exceed

the bounds of decency; (2) that the defendant acted with

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the intent to inflict emotional distress, or acted

recklessly when it was certain or substantially certain

emotional distress would result from his conduct; (3)

that the actions of the defendant caused the plaintiff to

suffer emotional distress; and (4) that the emotional

distress suffered by the plaintiff was so severe that no

reasonable person could be expected to endure it.

Travis v. Alcon Laboratories, Inc., 504 S.E.2d 419, 425 (W. Va.

1998). “[T]he tort of outrageous conduct . . . is a difficult fact

pattern to prove.” Hines v. Hills Dep’t Stores, Inc., 193 W. Va.

91, 96 454 S.E.2d 385, 390 (1994). “[O]ften the flagrancy and

‘enormity’ of the defendant’s misconduct ‘adds especial weight to

the plaintiff’s claim, and is in itself an important guarantee that

the mental disturbance which follows is serious and not feigned.’”

McClenathan v. Rhone-Poulenc, Inc., 926 F. Supp. 1272, 1278 (S.D.

W. Va. 1996) (quoting W. Page Keeton et al., Prosser and Keeton on

the Law of Torts § 12 at 57 and 56)). Oftentimes the conduct

necessary to prove intentional infliction of emotional distress is

unprecedented in nature. McClenathan, 926 F. Supp. at 1279.

Whether conduct can be considered outrageous by a trier of fact is

a question of law. Id.

The first prong requires that the plaintiff show atrocious

conduct; it must be more than unkind or unfair. Travis, 504 S.E.2d

at 425. “[C]onduct that is merely annoying, harmful of one’s

rights or expectations, uncivil, mean-spirited, or negligent does

not constitute outrageous conduct.” Courtney v. Courtney, 413

S.E.2d 418, 423 (W. Va. 1991).

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Here, as a matter of law, the plaintiffs have not shown

sufficient evidence of conduct that an average member of the

community would find outrageous. Travis, 504 S.E.2d at 428.

Therefore, they have failed to state a claim for intentional

infliction of emotional distress. Moreover, since this Court holds

that “the conduct complained of, in a full contextual analysis, was

not sufficiently egregious to create an ‘abusive’ or ‘hostile’

environment,’[ ] [this Court] cannot sustain a state-law cause of

action for intentional infliction of emotional distress. Hartsell,

123 F.3d at 774 (applying North Carolina law) (citing Dwyer v.

Smith, 867 F.2d 184, 194-95 (4th Cir. 1989) (applying Virginia

law)). Therefore, defendant Kolb’s motion to dismiss as to this

claim must be granted.

IV. Conclusion

For the reasons set forth above, the defendant Joe Kolb’s

motion to dismiss the complaint (ECF No. 6) is GRANTED.

IT IS SO ORDERED.

The Clerk is DIRECTED to transmit a copy of this memorandum

opinion and order to counsel of record herein.

DATED: July 3, 2019

/s/ Frederick P. Stamp, Jr.

FREDERICK P. STAMP, JR.

UNITED STATES DISTRICT JUDGE

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