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 MILLER AND JONES’

MOTION FOR JUDGMENT ON THE PLEADINGS,

GRANTING DEFENDANT OHIO COUNTY BOARD OF EDUCATION’S

MOTION FOR JUDGMENT ON THE PLEADINGS AND

DENYING JOINT MOTION FOR EXTENSION OF TIME

TO FILE EXPERT WITNESS INFORMATION AS MOOT

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”),

removed this civil action to the United States District Court for

the Northern District of West Virginia on February 1, 2019. 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, the plaintiffs state that one teacher had to take a

leave of absence, another transferred to a different school, and

one is actively seeking employment elsewhere. Id. at 5. The

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 (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. The plaintiffs seek compensatory and punitive damages. Id.

at 26-27. The plaintiffs also seek injunctive relief requiring

defendant OCBOE to: (1) take effective steps to prevent sex-based

discrimination and harassment in its education programs; (2) fully

investigate conduct that may constitute sex-based harassment; (3)

appropriately respond to all conduct that may constitute sex-based

harassment; and (4) mitigate the effects of harassment. Id. at 27.

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Lastly, the plaintiffs seek statutory interest, costs, and

reasonable attorneys’ fees. Id. at 27.

Defendant Kolb filed a motion to dismiss the plaintiffs’

complaint, under Federal Rule of Civil Procedure 12(b)(6). ECF

No. 6. After full briefing, this Court entered a memorandum

opinion and order granting defendant Kolb’s motion to dismiss. ECF

No. 33. The remaining defendants in this action are defendants

OCBOE, Miller, and Jones. In the memorandum opinion and order as

to defendant Kolb, this Court first found that the plaintiffs

failed to sufficiently plead their claims against defendant Kolb

pursuant to § 1983 based on a hostile or abusive work environment,

or retaliation. Id. at 9-23. Second, this Court found that the

plaintiffs failed to sufficiently plead their claims against

defendant Kolb based on the WVHRA. Id. at 24-26. Third, this

Court held that the plaintiffs failed to sufficiently plead their

claims against defendant Kolb for intentional infliction of

emotional distress. Id. at 26-28.

On July 29, 2019, defendants Miller and Jones filed a motion

for judgment on the pleadings, pursuant to Federal Rule of Civil

Procedure 12(c). ECF No. 35. In their memorandum in support of

their motion, defendants Miller and Jones state that because this

Court determined that the plaintiffs’ claims against defendant Kolb

must be dismissed, the same claims against them, specifically

Counts VII and VIII, should be dismissed. ECF No. 36 at 3.

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Moreover, defendants Miller and Jones assert that the remaining

claims (Counts I, II, and III) should be dismissed since the Court

found that the plaintiffs failed to sufficiently plead any claims

against defendant Kolb. Id. at 6. Specifically, defendants Miller

and Jones contend that since there is no underlying injury, they

cannot be held liable for negligent supervision, training or

investigation of that harassment (Counts I and II). Id.

Similarly, defendants Miller and Jones state that since there is no

underlying tort, there can be no civil conspiracy; therefore, Count

III should be dismissed. Id. at 6-7. Further, defendants Miller

and Jones state that Counts I, II, and III should be dismissed

since they are immune from liability based on the Governmental Tort

Claims and Insurance Reform Act. Id. at 7-10. Lastly, defendants

Miller and Jones state that they are immune from liability for all

remaining causes of action since they are entitled to qualified

immunity. Id. at 10-11.

On July 29, 2019, defendant OCBOE also filed a motion for

judgment on the pleadings. ECF No. 37. In its memorandum in

support of its motion, defendant OCBOE stated that since this Court

already determined that the plaintiffs’ allegations are

insufficient to sustain a claim for sexual harassment or

retaliation against defendant Kolb, the plaintiffs’ claims must be

dismissed. ECF No. 38 at 2-4. With respect to the plaintiffs’

claims under Title IX, more specifically Counts V and VI, defendant

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OCBOE asserts that since the plaintiffs’ claims fail under Title

VII and the WVHRA, their claims also fail under Title IX due to

their failure to plead the necessary elements of a sexual

harassment or retaliation claim. Id. at 4-6. Moreover, defendant

OCBOE states that the plaintiffs’ claims for common law negligence

must be dismissed because they are duplicative of the plaintiffs’

other sexual harassment claims and are thus preempted by statute.

Id. at 6-7. Defendant OCBOE asserts that even if the claims are

not preempted, in light of this Court’s determination that

defendant Kolb’s actions as alleged in the complaint did not

constitute sexual harassment, it is entitled to immunity under the

West Virginia Governmental Tort Claims Act. Id. at 8. Also,

defendant OCBOE asserts that because the OCBOE did not breach any

duty owed to them, it cannot be held liable for negligence. Id. at

8-9. Lastly, defendant OCBOE contends that the plaintiffs’ claims

for conspiracy should be dismissed, because the Court has not found

an underlying tort supporting that claim. Id. at 9-10.

The plaintiffs then filed a response in opposition to the

motions for judgment on the pleadings of defendant OCBOE, and

defendants Miller and Jones. ECF No. 40. In their response, the

plaintiffs first state that the Court should deny defendant OCBOE’s

motion to dismiss as to Counts I, II, and V because defendant OCBOE

was negligent and deliberately indifferent to the plaintiffs’

report of sexual harassment. Id. at 8-16. The plaintiffs concede

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that since defendant Kolb’s actions as alleged in the complaint

were determined by this Court not sufficiently severe or pervasive,

judgment on the pleadings is warranted for the plaintiffs’ claims

for conspiracy, intentional infliction of emotional distress,

Title IX-Retaliation, § 1983, and violations of the WVHRA. Id.

at 16. The plaintiffs also indicate that they have no objection to

dismissal of defendants Miller and Jones as individual defendants.

Id. at 16-17.

Defendant OCBOE then filed a reply. ECF No. 41. In its

reply, defendant OCBOE contends that since the Court found that the

plaintiffs have not sufficiently alleged the underlying claims, the

Court must find that the claims against it must be dismissed,

citing Klemencic v. Ohio State Univ., 263 F.3d 504, 511 (6th Cir.

2001), and Webber v. Mefford, 43 F.3d 1340 (10th Cir. 1994). Id.

at 2-4. Moreover, defendant OCBOE states that the plaintiffs have

not presented any reason why the Court should revisit its rulings

regarding defendant Kolb’s alleged actions. Id. at 5.

Defendants Miller and Jones also filed a reply. ECF No. 42.

In their reply, the defendants indicate that the plaintiffs do not

object to their dismissal as individual defendants, referencing the

plaintiffs’ memorandum in opposition to the motion to dismiss of

defendants Miller and Jones. Id. at 1.

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II. Applicable Law

A motion for judgment on the pleadings is permitted under

Federal Rule of Civil Procedure 12(c). Such a motion is intended

as an avenue by which parties may dispose of a case on the basis of

the underlying substantive merit of the parties’ claims as they are

revealed in the formal pleadings “after pleadings are closed, but

early enough not to delay trial.” Fed. R. Civ. P. 12(c); 5C Wright

& Miller, Federal Practice and Procedure Civil 3d § 1367 (2007).

When considering a motion for judgment on the pleadings pursuant to

Rule 12(c), a court should apply the same standard as when

considering a motion to dismiss pursuant to Rule 12(b)(6). See

Burbach Broadcasting Co. of Del. v. Elkins Radio Corp., 278 F.3d

I401, 405-06 (4th Cir. 2002).

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

under Rule 12(b)(6) of the Federal Rules of Civil Procedure, 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, 556 U.S. 662, 678

(2009)). This Court also declines to consider “unwarranted

inferences, unreasonable conclusions, or arguments.” Wahi v.

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

2009).

It has often been said that 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, 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 non-moving party 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 its 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, 556 U.S. at 678). Detailed factual

8

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.

IV. Discussion

A. Counts III, IV, VI, VII, VIII, and IX of the plaintiffs’

complaint are dismissed as to all defendants, including defendant

OCBOE, based on the plaintiffs’ concession. All counts of the

plaintiffs’ complaint are dismissed as they relate to defendants

Miller and Jones as individual defendants based on the plaintiffs’

concession.

The plaintiffs concede that given the Court’s ruling in its

memorandum opinion and order granting defendant Kolb’s motion to

dismiss (ECF No. 33), judgment on the pleadings is warranted for

the plaintiffs’ claims for conspiracy (Count III), intentional

infliction of emotional distress (Count IV), Title IX-Retaliation

(Counts VI), § 1983 liability (Counts VII and VIII), and violations

of the WVHRA (Count IX).1 ECF No. 40 at 16.

1This Court notes that in the plaintiffs’ memorandum in

opposition to the defendants’ motions for judgment on the

pleadings, the plaintiffs state that they “concede that judgment on

the pleadings is warranted for the Plaintiffs’ claims for

Conspiracy (Count III), Intentional Infliction of Emotional

Distress (Count IV), Title IX-Retaliation (Count IV), 1983

liability (Counts VII and VIII) and violations of the West Virginia

Human Rights Act (Count IX).” ECF No. 40 at 16 (emphasis added).

The plaintiffs seem to reference the incorrect count number for

Title IX-Retaliation. After review of the plaintiffs’ response in

opposition to the defendants’ motion for judgment on the pleadings

and the plaintiffs’ complaint, this Court finds that the plaintiffs

seem to concede only one Title IX claim, specifically Count VI,

against defendant OCBOE.

This Court further notes that the plaintiffs seem to concede

the claims listed above while preserving their objections to this

Court’s memorandum opinion and order granting defendant Kolb’s

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Accordingly, this Court dismisses Counts III, IV, VI, VII,

VIII, and IX of the plaintiffs’ complaint as to all defendants,

including defendant OCBOE.

Moreover, the plaintiffs state that they have no objection to

dismissal of defendants Miller and Jones as individual parties.

ECF No. 40 at 17.

Accordingly, this Court dismisses all counts of the

plaintiffs’ complaint as they relate to defendants Miller and

Jones.2

B. Counts I, II, and V are dismissed as to defendant OCBOE.

Count I of the plaintiffs’ complaint is a claim for

negligence. ECF No. 1-2 at 16. Count II of the plaintiffs’

complaint is a claim for negligent supervision. Id. Count V is a

claim for deliberate indifference to sexual harassment, in

motion to dismiss (ECF No. 33).

2The plaintiffs state “[g]iven the Court’s rulings in Docket

33, Defendant OCBOE’s admission that Jones and Miller were acting

within the scope of their duties, and Defendant Jones and Miller’s

admissions that Defendant Jones and Miller’s failure and negligence

were performed within the scope of their duties, there is no

objection to dismissal of Defendant Jones and Miller as individual

parties.” ECF No. 40 at 16-17. This Court construes this

statement to mean that the plaintiffs do not object to the

dismissal of defendant Jones and Miller as individual parties in

both their individual and official capacities. However, this Court

notes that the plaintiffs seem to preserve any objections regarding

this Court’s previous memorandum opinion and order granting

defendant Kolb’s motion to dismiss (ECF No. 33).

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violation of Title IX. Id. at 18. The Court addresses each count,

as each count applies to defendant OCBOE, in turn.3

1. Counts I and II are dismissed as to defendant OCBOE.

In the plaintiffs’ first cause of action, the plaintiffs

assert that defendant OCBOE negligently breached certain duties,

which directly and proximately resulted in the plaintiffs’ injuries

and damages as alleged in their complaint. ECF No. 1-2 at 16.

Specifically, the plaintiffs state that the defendants owed the

plaintiffs a duty to: (1) supervise and train defendant Kolb; (2)

investigate allegations of sex-based harassment; (3) comply with

the statutory mandate of federal law, including but not limited to

Title IX; (4) protect the plaintiffs from retaliation; (5) report

the results of investigations to the plaintiffs; and (6) provide a

harassment free workplace. Id. Moreover, the plaintiffs state

that as an employee of defendant OCBOE, defendant Kolb’s acts and

omissions are attributable to it. Id.; see also ECF No. 40 at

13-14. The plaintiffs state that the “critical question is not

whether the Court found that the allegations in the Complaint were

not severe or pervasive, the critical question is whether Defendant

OCBOE was negligent in its responses and repeated failures to

investigate and take action and whether Defendant OCBOE was

3Although the plaintiffs’ first and second causes of action

assert claims against defendants OCBOE, Miller, and Jones, since

this Court has dismissed Miller and Jones as individual defendants,

the Court will analyze the plaintiffs’ causes of action as they

relate to defendant OCBOE.

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deliberately indifferent to the Plaintiffs’ claims.” ECF No. 40

at 14.

In the plaintiffs’ second cause of action, the plaintiffs

contend that defendant OCBOE negligently supervised defendant Kolb

and other employees by failing to provide proper training and

outline proper procedures for, among other things, investigation of

sex-based harassment complaints, corrective action for sex-based

harassment complaints, and protection of victims from retaliation.

ECF No. 1-2 at 17.

Conversely, defendant OCBOE asserts that if there is no

underlying constitutional violation, there can be no claim against

an educational institution for failure to investigate, train or

supervise related to that claim. ECF No. 41 at 2. Specifically,

defendant OCBOE maintains that the negligence claim is “entirely

based on the Board’s obligations under Section 1983, Title VII, and

Title IX.” Id. at 4.

The West Virginia Supreme Court of Appeals “has not found

state authority for a stand-alone claim for negligent training or

supervision.” Webb v. Raleigh Cnty. Sheriff’s Dep’t, 761 F. Supp.

2d 378, 397 (S.D. W. Va. 2010); Taylor v. Cabell Huntington Hosp.,

Inc., 208 W. Va. 128, 538 S.E.2d 719, 725 (2000). “Instead, a

claim for negligent supervision requires a separate finding of

negligence on the part of the employee being supervised.” Heslep

v. American for African Adoption, Inc., 890 F. Supp. 2d 671, 687

12

(N.D. W. Va. 2012); see also Taylor, 538 S.E.2d at 725 (dismissing

the appellant’s claim that a hospital negligently supervised a

nurse absent a showing of negligence by the nurse); Biser v.

Manufacturers and Traders Trust Company, 211 F. Supp. 3d 845 (S.D.

W. Va. 2016) (“Plaintiffs alleging negligent supervision or

training must first make an underlying showing of a negligence

claim as to an employee, and then demonstrate that the employee was

negligently trained or supervised.”).

Here, the plaintiffs allege that defendant OCBOE’s failure to

supervise defendants Miller and Jones’ allegedly negligent conduct

resulted in its commission of negligence. Specifically, the

plaintiffs allege in their complaint that defendants Miller and

Jones failed to properly train and supervise defendant Kolb. See

ECF No. 1-2 at 1-2; ECF No. 40 at 13. Based on the law outlined

above, in order for defendant OCBOE to be held liable for negligent

supervision or training, there must be a finding of negligence on

the part of defendants Miller and Jones. However, in order to find

defendants Miller and Jones liable, there must be a finding that

defendant Kolb was negligent.

This Court notes that the plaintiffs are correct in stating

that “[n]o where did the Court state that Kolb did not act

negligently.” ECF No. 40 at 16. However, the plaintiffs did not

specifically plead in their complaint a claim against defendant

Kolb for negligence. Moreover, the plaintiffs have voluntarily

13

dismissed defendants Miller and Jones. Specifically, the acts

alleged in the complaint are defendant Kolb’s continued harassment,

retaliation, and creation of a hostile work environment, and

defendants Miller and Jones’ alleged failure to properly train and

supervise defendant Kolb.

Further, “a mere allegation of negligence does not turn an

intentional tort into negligent conduct.” Weigle v. Pifer, 139 F.

Supp. 3d 760, 780 (S.D. W. Va. 2015) (finding that the defendant

officers intended the consequences of their actions during

plaintiff’s arrest and that while their actions may give rise to an

intentional tort, they cannot support liability predicated on

negligence). “Intentional torts, as distinguished from negligent

or reckless torts . . . generally require that the actor intend the

consequences of an act, not simply the act itself.” Kawaauhau v.

Geiger, 523 U.S. 57, 62 (1998) (emphasis omitted) (internal

quotation marks omitted).

Assuming the allegations in the plaintiffs’ complaint are

true, it seems that defendant Kolb’s alleged conduct was

intentional, specifically, his alleged continued harassment,

retaliation, and creation of a hostile work environment. See

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 743 (1998)

(“[S]exual harassment under Title VII presupposes intentional

conduct.”); University of Texas Southwestern Medical Center v.

Nassar, 570 U.S. 338, 368 (2013) (“Retaliation is, by definition,

14

an intentional act. It is a form of discrimination because the

complainant is being subject to differential treatment. Moreover,

retaliation is discrimination on the basis of sex because it is an

intentional response to the nature of the complaint: an allegation

of sex discrimination.”) (quotation marks omitted). Thus, even if

defendant Kolb’s alleged actions could have given rise to an

intentional tort, they cannot support liability predicated on

negligence. Weigle, 139 F. Supp. 3d at 780 (citing Brown v. J.C.

Penney Corp., 521 F. App’x 922, 924 (11th Cir. 2013) (per curium)).

The plaintiffs, therefore, have not alleged the required

elements to sustain Counts I and II. Moreover, because the

negligence claim against defendant OCBOE alleged in Counts I and II

are wholly dependent upon the unviable negligence claim against

defendant Kolb, the plaintiffs’ negligence claims against defendant

OCBOE cannot proceed. Specifically, because the Court does not

find that the plaintiffs asserted a claim that defendant Kolb was

negligent, this Court cannot find that defendants Miller and Jones

were negligent. And since the Court does not find that defendants

Miller and Jones were negligent, this Court cannot find that

defendant OCBOE was negligent. Accordingly, defendant OCBOE’s

motion for judgment on the pleadings is appropriate as to Counts I

and II.

15

2. Count V is dismissed as to defendant OCBOE.

In the plaintiffs’ fifth cause of action, the plaintiffs

contend that defendant OCBOE was deliberately indifferent to

defendant Kolb’s sexual harassment. ECF No. 1-2 at 18. The

plaintiffs state that defendant Kolb’s actions were severe,

pervasive, and objectively offensive that it deprived the

plaintiffs of access to educational opportunities or benefits

provided by the school. Id. The plaintiffs further allege that

defendant OCBOE created and/or subjected the plaintiffs to a

hostile educational environment in violation of Title IX of the

Education Amendments of 1972, 20 U.S.C. § 1681(a), because: (1) the

plaintiffs are members of a protected class; (2) they were

subjected to sex-based sexual harassment; and (3) they were

subjected to a hostile educational environment created by defendant

OCBOE’s lack of policies and procedures and failure to properly

investigate and/or address repeated episodes of sexual harassment.

Id. The plaintiffs maintain that defendant OCBOE had actual

knowledge of the sex-based harassment that it created by its

alleged failure to investigate and discipline defendant Kolb in a

timely manner. Id. Moreover, the plaintiffs claim that defendant

OCBOE engaged in a pattern and practice of behavior designed to

discourage and dissuade victims of sexual harassment from seeking

protection and having full investigation of the alleged harassment.

Id. at 19. Lastly, plaintiffs allege that as a direct and

16

proximate result of defendant OCBOE’s deliberate indifference, they

have suffered various injuries. Id. In the plaintiffs’ response

in opposition to the defendants’ motions for judgment on the

pleadings, the plaintiffs list various cases that have found that

a plaintiff has met the required burden of proof to sufficiently

allege that certain actions were “severe or pervasive.” ECF No. 40

at 10-13. The plaintiffs then refer to their complaint where they

allege that: (1) no investigation was conducted; (2) no action was

taken against defendant Kolb; (3) harassment was persistent and

severe; (4) defendant OCBOE failed to do an investigation; (5) a

plaintiff was moved after her report; (6) representatives of

defendant OCBOE were openly dismissive of plaintiff Ammirante’s

complaints; (7) after an “investigation,” defendant Kolb was given

a summer school principal job; and (8) defendant OCBOE failed to

take remedial measures or offer Title IX paperwork. Id. at 13-14.

In its reply brief, defendant OCBOE states that Title IX

actions against institutions are not sustainable where final

judgments have held that the institution’s employee did not commit

the underlying sex discrimination alleged. ECF No. 38 at 5 (citing

Klemencic v. Ohio State Univ., 263 F.3d 504, 511 (6th Cir. 2001)).

This Court agrees with defendant OCBOE that it cannot be held

liable under Title IX based on the plaintiffs’ theory of liability.

As a matter of law, the plaintiffs were not subjected to the

underlying sex discrimination alleged. In order to sufficiently

17

allege a claim pursuant to Title IX on the basis of sexual

harassment, the plaintiffs must show that: (1) defendant OCBOE

receives federal funds; (2) the plaintiffs were subjected to

harassment based on their sex; (3) the harassment was sufficiently

severe or pervasive to create a hostile or abusive environment in

an educational program or activity; and (4) there is a basis for

imputing liability to the institution. Jennings v. University of

North Carolina, 482 F.3d 686, 695 (4th Cir. 2007). Defendant OCBOE

can be held liable for a Title IX violation only if “an official

who . . . has authority to address the alleged discrimination and

to institute corrective measures . . . has actual knowledge of

discrimination . . . and fails to adequately to respond” or

displays “deliberate indifference” to discrimination. Gebser v.

Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998).

Here, the plaintiffs’ allegations of sexual harassment were

based on defendant Kolb’s conduct. Consistent with this Court’s

prior opinion (ECF No. 33), it is doubtful whether the plaintiffs

have sufficiently alleged the second essential element of their

Title IX claim, and the plaintiffs have failed to sufficiently

allege the third essential element of their Title IX claim.4

4This Court will not go into detail as to why it is doubtful

that the plaintiffs have sufficiently alleged the second element,

but rather, the focus of this opinion is why the plaintiffs have

failed to sufficiently allege the third element. The parties

should see this Court’s prior memorandum opinion and order (ECF No.

33) for a more detailed discussion regarding the second element.

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Moreover, although the plaintiffs state “the critical question

is not whether the Court found that the allegations in the

Complaint were not severe and pervasive,” the plaintiffs’ response

to the defendants’ motion for judgment on the pleadings cites

various cases as to whether certain conduct was severe or pervasive

under Title VII. To the extent the plaintiffs seek this Court to

revisit its prior decision (ECF No. 33), such a request is denied.

Regardless, this Court will proceed to distinguish the cases cited

in the plaintiffs’ response in opposition to the defendants’

motions for judgment on the pleadings that relate to the “severe or

pervasive” element.5 In doing so, this Court will not restate what

has been already addressed in the memorandum opinion and order

granting defendant Kolb’s motion to dismiss (ECF No. 33).

Moreover, in distinguishing the cases that are cited by the

plaintiffs in their response to the defendants’ motions for

judgment on the pleadings, this Court is not simply distinguishing

5This Court notes that some of the cases cited by the

plaintiffs pertain to issues surrounding a court’s decision to

either grant or deny summary judgment. However, as previously

noted in the “Applicable Law” section, in assessing the defendants’

motions for judgment on the pleadings, this Court applies the

standard for a Rule 12(b)(6) motion. A Rule 12(b)(6) motion 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. For purposes of deciding the defendants’ motions

for judgment on the pleadings, this Court construes the complaint

in the light most favorable to the plaintiffs and inquires as to

whether the allegations constitute a statement of a claim under

Federal Rule of Civil Procedure 8(a).

19

those cases to demonstrate that the behavior in those cases are

considerably more offensive than that shown here. Rather, as

stated in this Court’s prior opinion (ECF No. 33), the case law

serves as guidance where certain conduct would satisfy a

plaintiff’s burden on the “severe or pervasive” element. See ECF

No. 33 at 15. This Court does not limit the applicable analysis

only to instances where certain precise behaviors are alleged to

have occurred. See id. The main question is whether as a matter

of law, even when accepting all well-pled facts contained as true,

the plaintiffs’ allegations constitute a statement of claims under

Federal Rule of Civil Procedure 8(a). 5B Charles Alan Wright &

Arthur R. Miller, Federal Practice and Procedure § 1356 (3d ed.

1998); see ECF No. 33 at 7. Here, without considering “legal

conclusions, elements of [the] cause of action, and bare assertions

devoid of further factual enhancement,” the plaintiffs have not

alleged sufficient facts to state a claim under Title IX that is

plausible on its face. Nemet, 591 F.3d at 255.

The plaintiffs first cite Parker v. Reema Consulting Services,

Inc., 916 F.3d 297, 300 (4th Cir. 2019). In that case, the central

question presented was “whether a false rumor that a female

employee slept with her male boss to obtain a promotion can ever

give rise to her employer’s liability under Title VII for

discrimination ‘because of sex.’” Id. Prior to appeal, the

district court dismissed the plaintiff’s complaint partly because

20

the harassment that the plaintiff alleged in the complaint was not

sufficiently severe or pervasive to create a hostile work

environment. Id. at 304. Specifically, the district court noted

that “the rumor circulated for a few weeks and involved only a few

slights.” Id. (quotation marks omitted)

When this Court determined that defendant Kolb’s actions were

not “severe or pervasive,” this Court viewed all the facts in the

light most favorable to the plaintiffs and assumed all facts to be

true. This Court considered the “frequency of the discriminatory

conduct; its severity; whether it [was] physically threatening or

humiliating, or a mere offensive utterance; and whether it

unreasonably intere[d] with [the] employee[s’] work performance” in

order to determine whether the plaintiffs have alleged enough facts

to state a claim for relief. Harris v. Forklift Systems, Inc., 510

U.S. 17, 23 (1993). Unlike the district court in Parker, this

Court did not largely focus on the temporal nature of the alleged

harassment, or on any one particular fact, but considered the

totality of the facts presented, assuming all facts to be true, in

reaching its conclusion. See ECF No. 33 at 15-20.

The plaintiffs next cite Hernandez v. Fairfax County, 719 F.

App’x 184, 185 (4th Cir. 2018). In remanding the district court’s

decision to enter summary judgment in favor of the defendant, the

United States Court of Appeals for the Fourth Circuit found that

there are genuine issues of material fact with respect to the

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plaintiff’s hostile work environment and retaliation claims under

Title VII. Id. Even when construing the facts presented in the

complaint in the light most favorable to the plaintiffs, the facts

presented in Hernandez are distinguishable from the facts presented

in this civil action, and support this Court’s determination that

the plaintiffs have failed to allege sufficient facts to meet the

“severe or pervasive” standard. In Hernandez, “[i]n less than one

year, [the station captain at the fire department] physically

invaded [the plaintiff’s] personal space on numerous occasions and

made sexually suggestive comments to her. [The plaintiff] also

informed various colleagues that he suspected that [the plaintiff

and another] were engaged in an inappropriate sexual relationship.

[The station captain] repeated his offensive actions despite the

fact that [the plaintiff] repeatedly asked him to stop this

conduct.” Id. at 187-88. Moreover, the Fourth Circuit

“importantly” noted “evidence of the extent to which [the

plaintiff] knew that [the station captain] was continuing to

monitor her movements and activities. [The plaintiff] was aware

before she transferred to another station that [the station

captain] started tracking what [she] was doing at the station, who

[she] was talking to, how [she] was doing certain things, who [she]

was giving hugs to.” Id. (internal quotation marks omitted). Even

after the plaintiff transferred to a different station, the station

captain allegedly “continued to monitor her and knew when she was

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working. The record additionally showed that [the station captain]

compiled multiple binders with information he had collected about

[the plaintiff].” Id.

The plaintiffs also cited Mosby-Grant v. City of Hagerston,

630 F.3d 326, 328 (4th Cir. 2010). In reviewing a district court’s

grant of the defendant city’s motion for summary judgment, the

Fourth Circuit found that the plaintiff presented enough evidence

for a reasonable jury to conclude that she was exposed to a hostile

work environment because of her sex. Id. at 333. In that case,

“[s]exist comments were pervasive . . . and were frequently made to

[the plaintiff] or in her presence.” Id. at 335. Specifically,

“she heard her fellow recruits brazenly and repeatedly describe a

sexual encounter with a sixteen year-old girl . . . She also heard

recruits and instructors make dozens of references to women as

‘bitches,’ ‘crazy,’ ‘white trash,’ ‘ghetto,’ and ‘prostitutes,’ was

called a ‘bitch’ herself by an instructor, and was consistently

subjected to selective taunting.” Id. Moreover, the general work

atmosphere, which may serve as additional evidence in a hostile

work environment claim, was discriminatory. Id. “[T]he recruits’

use of racially charged terms like ‘honky,’ ‘cracker,’ and ‘fucking

Mexicans’” was also found to be additional evidence that may lead

a jury to reasonably conclude that a discriminatory atmosphere was

pervasive at the subject Academy. Id.

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Unlike the facts presented in that case, the plaintiffs’

allegations here did not rise to a level of “severe or pervasive.”

See ECF No. 33 at 15-20 for a detailed review. Moreover, this

Court notes that in Mosby-Grant, the Fourth Circuit did not find

that the plaintiff presented sufficient evidence to proceed on her

race-based harassment claim despite evidence of: (1) an “incident

wherein [the plaintiff] overheard racist comments,6 the offending

recruit immediately apologized, and explained that he and the

biracial recruit had been joking with one another[,]” and (2)

“another recruit [] openly diparage[d] Mexicans . . . two times in

five months.” Id. at 336-37. Citing Hartsell v. Duplex Products,

123 F.3d 766, 773 (4th Cir. 1997), the Court held that the evidence

of the pervasiveness or severity of racial animus at the Academy

was too isolated and too minimal. Id. at 337. “[S]imple teasing,

offhand comments, and isolated incidents (unless extremely serious)

will not amount to discriminatory changes in the terms and

conditions of employment.” Faragher v. City of Boca Raton, 525

U.S. 775, 788 (1998) (citation and internal quotation marks

omitted).

The plaintiffs next cite Jennings v. University of North

Carolina, 482 F.3d 686, 691 (4th Cir. 2007). In that case, the

6The Fourth Circuit indicated that the plaintiff overheard a

white male recruit tell a biracial recruit, “[w]here I’m from,

people like you are strung up from a flagpole.” Mosby-Grant, 630

F.3d at 329.

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plaintiff alleged that her coach “persistently and openly pried

into and discussed the sex lives of his players and made sexually

charged comments.” Id. In that case, the Fourth Circuit

emphasized how the coach “was not just any college coach.” Id.

at 698. Rather, this coach had “tremendous power and influence

over a player’s opportunity for achievement in the soccer world,

both at [the subject University] and beyond.” Id. Moreover, the

coach “was a forty-five-year-old man probing into and commenting

about the sexual activities of young female, some of whom, like

[the plaintiff], were as young as seventeen.” Id. In that case:

(1) the coach allegedly asked the plaintiff “[w]ho [she was]

fucking] . . . in a dark hotel room, knee-to-knee, bed not made,

sitting at one of those tiny tables[;]” (2) the plaintiff witnessed

the coach’s persistent focus on the sex lives of other players; (3)

the plaintiff observed the coach’s sex-based humiliation of several

teammates; (4) the plaintiff heard the coach’s demeaning comments

where the coach “openly accused at least three players of being

promiscuous, asking them degrading questions such as, ‘Is there a

guy you haven’t fucked yet?’[;]” (5) the coach “turned news about

visits by boyfriends into speculation about rampant sex[,]” asking

“one player whether she was going to have a ‘shag fest’ when her

boyfriend visited, and whether she was ‘going to fuck him and leave

him.’[;]” (6) the coach asked one player about the size of her

boyfriend’s genitalia; (7) the coach mocked a lesbian player and

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asked her why she did not like men; (8) the plaintiff overheard the

coach express fantasies about wanting to have group sex with his

Asian players and about his interest in watching one player have

sexual intercourse; (9) the coach engaged in overt displays of

affection, telling players they had “nice rack[s]” or “nice

legs[;]” and (10) the coach inappropriately touched the players.

Id. This conduct was stated to “permeate[] team settings . . .

occurring frequently, often during team warm-up time, on a typical

Monday afternoon . . . or any time the team was together.” Id.

Again, unlike the facts presented in Jennings, the plaintiffs’

allegations here do not rise to a level of “severe or pervasive.”

See ECF No. 33 at 15-20 for a detailed review. More specifically,

although no particular fact is dispositive, there are various facts

that were presented in Jennings that are not alleged in this civil

action. First, defendant Kolb is not alleged to have the same sort

of power that the coach in Jennings had. Second, the plaintiffs do

not allege facts that suggest a vast age difference that existed

between the coach and his players in Jennings. Third, dissimilar

to Jennings, where the harassing conduct occurred “any time the

team was together,” the conduct alleged in the plaintiffs’

complaint does 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[.]’” Walker v. Mod-U-Kraf Homes, LLC, 775 F.3d 202, 209

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(4th Cir. 2014) (citing EEOC v. Cent. Wholesalers, Inc., 573 F.3d

167, 176 (4th Cir. 2009)); see also ECF No. 33 at 16-17.

Next, the plaintiffs cite Smith v. First Union Nat. Bank, 202

F.3d 234, 238 (4th Cir. 2000). In that case, the Fourth Circuit

found that the district court incorrectly resolved whether the

conduct at issue was sufficiently severe or pervasive. Id. at 243.

In that case, the district court did not recognize that a woman’s

work environment can be hostile even without sexual advances or

propositions. Id. at 242. Specifically, the Fourth Circuit noted

that: (1) the plaintiff was subject to repeated remarks because she

was a female on a regular basis, “at least once a month[;]” (2) the

plaintiff was physically threatened; (3) received angry late-night

phone calls; and (4) the employee who allegedly sexually harassed

the plaintiff exhibited a paranoia that females “were out to get

him.” Id. at 242-243 (quotation marks omitted).

Again, unlike the facts presented in Smith, the plaintiffs’

allegations here do not rise to a level of “severe or pervasive.”

See ECF No. 33 at 15-20 for a detailed review. The facts presented

in Smith contrast significantly to the facts presented in this case

due to the lack of physically threatening remarks and conduct, and

regularity of such conduct. Again, in coming to its determination

that defendant Kolb’s alleged harassment was not “severe or

pervasive,” this Court assumed all facts in the plaintiffs’

complaint are true and considered the full range of defendant

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Kolb’s conduct, ultimately finding that the plaintiffs have not

sufficiently alleged to state a claim for relief.

Moreover, the plaintiffs cite Hall v. Gus Const. Co., Inc.,

842 F.2d 1010, 1015 (8th Cir. 1988). In reviewing a district

court’s finding that a Title VII plaintiff was subjected to sexual

harassment, the Eighth Circuit found that the plaintiffs were

subject to a “plethora of offensive incidents . . . no less

compelling than in other cases finding a hostile and abusive

environment.” Id. Specifically, the Court found evidence that all

the plaintiffs were subject to “systematic[]” sexual insults

throughout their employment. Although not dispositive, the

plaintiffs here have not made such allegations in their complaint.

The plaintiffs next cite Davis Next Friend LaShonda D. v.

Monroe County Bd. of Educ., 526 U.S. 629 (1999), where the Supreme

Court of the United States found that the Eleventh Circuit erred in

dismissing the petitioner’s complaint. Id. at 653. In that case,

however, the petitioners alleged “repeated acts of sexual

harassment . . . over a 5-month period.” Id. Specifically, there

were allegations of verbal harassment and numerous acts of

objectively offensive touching. Id. Indeed, the student who

allegedly sexually harassed the plaintiff ultimately pleaded guilty

to criminal sexual misconduct. Id. Unlike the facts in Davis,

here, the plaintiffs do not allege conduct that would be considered

sufficiently repetitious over a period of time. Moreover, unlike

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Davis, the plaintiffs do not sufficiently allege enough facts of

objectively offensive touching or verbal harassment. As stated in

this Court’s prior opinion, 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. See ECF No.

33 at 17 (citing Green v. Caldera, 19 F. App’x 79, 80 (4th Cir.

2001)).

Lastly, the plaintiffs cite Crandell v. New York College of

Osteopathic Medicine, 87 F. Supp. 2d 304 (S.D. N.Y 2000), where a

student brought a Title IX action against a medical school and its

parent institution. In that case, the plaintiff alleged that one

professor: (1) asked her out on a date several times over the

course of the semester; (2) told her she was pretty and that he

wanted to end his relationship with his fiancé in order to date

her; (3) appeared at her apartment with another professor who dated

her roommate; and (4) entered her bedroom uninvited and kissed her

against her will. Id. at 307. Another professor allegedly made

several comments during the semester that had sexual overtones.

Id. at 308. Moreover, a faculty member allegedly: (1) “pressed his

erect penis against plaintiff’s hand, which was gripping the side

of the table[,]” continuing to press himself against her even after

she moved her hand away and (2) told the plaintiff that she was the

most beautiful out of all of his patients. Id. The plaintiff also

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alleged that a radiologist during her internship: (1) asked her out

on dates more than ten times; (2) told her that he made

reservations at a dance studio for the two of them; and (3)

sometimes physically blocked her way in the hall in order to force

her to talk to him. Id. at 311. During her internship, the

plaintiff allegedly continued to be subjected to sexual comments

and behavior from other doctors that included physical touching,

with one doctor removing his clothes in front of her. Id. Another

doctor allegedly told her that he could prevent her from obtaining

a residency program. Id.

Like the other cases the plaintiffs have cited, this case can

be distinguished from the case at hand for numerous reasons.

Unlike the facts in Crandall, the plaintiffs were not subject to

the same sort of allegedly extensive verbal and physical harassment

over a period of time. Indeed, Crandell and all the other cases

cited by the plaintiffs further provide support for the Court’s

initial conclusion that the facts alleged in the complaint, even

when assumed as true and viewed in light most favorable to the

plaintiffs, are insufficient to meet the “severe or pervasive”

standard.

Accordingly, for the reasons stated above, the plaintiffs have

failed to sufficiently allege the third essential element of their

Title IX claim. Defendant OCBOE’s motion for judgment on the

pleadings is granted as to Count V as well as to Counts I and II.

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V. Conclusion

For the reasons set forth above, the motion for judgment on

the pleadings of defendants Kimberly S. Miller and Rick Jones (ECF

No. 35) is hereby GRANTED and the motion for judgment on the

pleadings of defendant Ohio County Board of Education (ECF No. 37)

is hereby GRANTED. Lastly, the parties’ joint motion for an

extension of time to file expert witness information (ECF No. 43)

is DENIED AS MOOT.

It is further ORDERED that this civil action be DISMISSED and

STRICKEN from the active docket of this Court.

IT IS SO ORDERED.

The Clerk is DIRECTED to transmit a copy of this memorandum

opinion and order to counsel of record herein. Pursuant to Federal

Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment

on this matter.

DATED: October 18, 2019

/s/ Frederick P. Stamp, Jr.

FREDERICK P. STAMP, JR.

UNITED STATES DISTRICT JUDGE

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