Jones v. The Board of Education of Putnam County, West Virginia

IN THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF WEST VIRGINIA

HUNTINGTON DIVISION

TIMOTHY R. JONES and

JANIE COLE,

Plaintiffs,

v. CIVIL ACTION NO. 3:19-0618

THE BOARD OF EDUCATION OF

PUTNAM COUNTY, WEST VIRGINIA,

JOHN HUDSON, individually and in his official capacity as

Superintendent of Schools for Putnam County;

SHARLA GRIFFITH, individually and in her capacity as

Putnam County Director of Exceptional Education,

CANDI HATFIELD, individually and in her official capacity as

Principal of Winfield Elementary School;

ALICIA COEY, a/k/a Alicia Powell, individually

and in her official capacity as a Prevention Resource Officer, and

EDDIE STARCHER, individually and in his official capacity as

Chief of Police of Winfield, West Virginia,

Defendants.

MEMORANDUM OPINION AND ORDER

Two motions to dismiss are currently pending before the Court, both filed by a different

set of defendants. The first motion argues for dismissal of all claims asserted against the Putnam

County Board of Education (“PCBOE”), Superintendent John Hudson, Director of Exceptional

Education Sharla Griffith, and Principal Candi Hatfield (collectively “PCBOE Defendants”).

PCBOE Mot. to Dismiss, ECF No. 21. The second motion argues for dismissal of all claims raised

against Officer Alicia Coey and Chief Eddie Starcher. Coey/Starcher Mot. to Dismiss, ECF No.

23. For the reasons set forth herein, the Court GRANTS IN PART and DENIES IN PART the

motions.

I. BACKGROUND

This case begins like most school days: with a drop-off at the schoolhouse doors.1 On

August 27, 2018, Plaintiff Timothy Jones—father of Z.S.J., a minor student with Down

syndrome—arrived with his son at Winfield Elementary School.2 Am. Compl., ECF No. 17, at

¶¶ 4, 45. Pursuant to a “streamlined” drop-off policy that had been adopted the previous school

year, Jones pulled his car into the designated area, exited the driver’s side, and moved to the rear

of the vehicle to guide Z.S.J. out of the car “so that he could go in the center doors of the school.”

Id. at ¶ 45. While Jones assisted Z.S.J., Officer (and Defendant) Alicia Coey—pregnant, on “light

duty,” and dressed in jeans, a t-shirt, and sandals—approached the car and “demanded he put his

son back in the car and drive on to the secondary unloading zone defined by [an] unwritten policy

that the Board chose to enforce relative to Z.S.J.” Id. at ¶ 46.

Principal (and Defendant) Candi Hatfield allegedly informed Jones and his wife, Plaintiff

Janie Cole, of this “unwritten policy” at some point before August 27. Id. at ¶ 33. Specifically,

Jones alleges that Hatfield asked them to wait in the drop-off line, pull forward to the front of the

line, and then continue on to a “separate area farther from the doors of the school where Z.S.J.

could be unloaded from the vehicle.” Id. at ¶ 34. Rather than follow the unwritten policy, on “a

number of occasions” Jones dropped Z.S.J. at the front of the school. Id. at ¶ 35. This “often

result[ed] in some unfortunate delay to other parents of nondisabled students because of the time

Z.S.J. takes to get out of a car.” Id. Plaintiffs simultaneously began advocating for a “uniform”

policy that would allow their son to exit the car at the main drop-off point. Id. at ¶ 37, 40. Jones’

1 These facts are taken from the Amended Complaint, and are accepted as true at this stage

of litigation. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)).

2 Rather than placing him on the “special needs bus,” Plaintiffs had decided to drive Z.S.J.

to school “so he could be treated just like the other non-disabled students.” Id. at ¶ 32.

objections to Z.S.J.’s specialized drop-off policy were consequently widely known by the time he

arrived at Winfield Elementary on August 27. See id. at ¶¶ 36–38.

Unsurprisingly given this background, Jones’ reaction to Coey’s order was less than

positive. Unaware he was speaking to a police officer, Jones responded in a “loud, frustrated but

nonviolent tone of voice” that “he did not need a lecture.” Id. at ¶¶ 46–47. The relatively brief

encounter ended with Coey taking Z.S.J. by the hand to lead him into the school and Jones

returning to his vehicle and driving away. Id. at ¶ 48. Nevertheless, the confrontation was

sufficiently alarming to Jones that he decided “to take Z.S.J. to school on August 28 by parking

near the school’s office, having his son’s teacher come to the office to take him back to his

classroom area[,] and then seeking someone with whom he could discuss the ongoing issues

regarding student drop-off.” Id. at ¶ 49.

Unfortunately for Jones, the morning of August 28 would be no less confrontational than

the previous day. After Jones left Z.S.J. with his teacher, Officer Coey appeared in the office,

displayed her badge “for the first time,” and ordered him to produce a driver’s license. Id. at ¶ 52.

Jones “questioned why Coey needed to see his driver’s license since she clearly knew who he

was.” Id. at ¶ 53. Coey responded that “he was being detained in the office area of the school and

could not leave until other police personnel appeared,” and then positioned herself between Jones

and the exit. Id. at ¶¶ 54–55. She also informed him that he would receive a citation for the prior

morning’s incident. Id. at ¶ 52. Minutes later, however, Coey reversed herself and informed Jones

that he was free to leave. Id. at ¶ 55.

Despite Coey’s offer, Jones elected to stay in hope of obtaining a meeting with Director of

Exceptional Education (and Defendant) Sharla Griffith. Id. at ¶ 56. Cole called Jones to inquire

about the morning’s drop-off experience, and was understandably alarmed by the turn of events.

Id. at ¶¶ 57–58. She followed her call to Jones with a call to the school, where she was put on

speakerphone with Principal Hatfield, the assistant principal, Officer Coey, and Chief of Police

(and Defendant) Eddie Starcher. Id. at ¶ 60. This conversation quickly grew combative, with

Starcher confronting Cole in a “threatening tone” and “telling her that someone was at that moment

at the prosecuting attorney’s office deciding whether or not to go arrest Mr. Jones.” Id. at ¶ 64.

After Cole asked to speak with Hatfield about the drop-off dispute, she alleges that Starcher

interjected again and cautioned that “one of two things are going to happen, we are going to issue

a citation or haul his ass to jail.” Id. at ¶ 66. Soon after, Hatfield, Coey, and Starcher “abruptly

ended the telephone call.”3 Id. at ¶ 69.

Following the call with Cole, administrators escorted Jones into a meeting room “where he

was confronted by Griffith and Starcher.” Id. at ¶ 72. Jones felt “threatened, intimidated and

coerced” by the presence of Starcher, who was armed. Id. at ¶ 73. Griffith repeatedly informed

Jones that he should refrain from driving his son to school and that Z.S.J. should ride the “special

needs bus” instead. Id. at ¶ 74. Starcher contributed to the conversation as well, informing Jones

“that he was confronted with choices and that there was no need to cater to his concerns about his

son, that warrants or criminal complaints were going to be obtained,” and that an accommodated

drop-off plan would not “happen at this school or any school here in Putnam County.”4 Id. at ¶

76. The meeting ended without a resolution.

3 Although it is unclear exactly how he was involved with the call, the Amended Complaint

alleges that Superintendent (and Defendant) Hudson was present for at least a portion of it. Id. at

¶ 69.

4 Starcher further advised Jones not to “be the person who’s always a troublemaker” and

that he was “very lucky that [Coey] was pregnant and . . . off on light duty or she would’ve arrested

you today.” Id. at ¶¶ 77–78.

After the meeting, Griffith texted Starcher to thank him “for your help this morning!” Id.

at ¶ 79. Starcher replied “any time girl u know that. Glad I can help. That guys [sic] can’t be

pleased. We are getting warrants today. I wasn’t too harsh was I on him?” Id. Griffith dispelled his

concerns, responding that Starcher was “not too harsh at all.” Id. Later that afternoon, Griffith

informed Starcher of several options for Z.S.J.’s drop-off, to which Starcher responded that “We

will support whatever you want.” Id. at ¶ 80. At various points in their exchange, Griffith and

Starcher referred to Jones as “non-stable” and a “crazy.” Id. at ¶ 81.

That afternoon, Coey traveled to the Magistrate Court of Putnam County and obtained two

criminal complaints against Jones. In particular, the complaints accused Jones “of stopping,

parking or leaving his vehicle upon a highway outside a business or residence district, forcibly or

illegally hindering or obstructing a law enforcement officer in her official capacity[,] and failure

to have a driver’s license in his possession at all times while operating a motor vehicle.” Id. at

¶ 82. Plaintiffs allege that Coey obtained the complaints by making materially false statements to

the Magistrate Court, and that she had actual knowledge they were false at the time. Id. at ¶ 83.

They also claim that the same knowledge was later conveyed to Starcher, Hudson, and Hatfield.

Id. In response, Plaintiffs claim Hudson ordered a “confidential audit” of records relating to

Plaintiffs and Z.S.J. to conceal any wrongdoing. Id. at ¶ 85. While Jones hired counsel and

appeared in court on several occasions, the charges were dismissed on his motion without objection

by the prosecutor on January 4, 2019. Id. at ¶ 85.

Approximately nine months after the charges against Jones were dismissed, Plaintiffs filed

suit in this Court. Id. at 1. At some point before initiating their lawsuit, it appears that Plaintiffs

removed Z.S.J. from Putnam County schools and established a new residence in Kanawha County,

West Virginia. Id. at ¶ 91. Plaintiffs allege that the entire course of conduct recounted above was

“in retaliation and reprisal . . . for [Plaintiffs’] protected activities in advocating vigorously on

behalf of their disabled son to secure for him the rights guaranteed by federal and state law.” Id. at

¶ 88. Plaintiffs raise claims under the Americans With Disabilities Act of 1991 (“ADA”), 42

U.S.C. § 12203, Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. § 794,

and the West Virginia Human Rights Act (“WVHRA”), W. Va. Code § 5-11-9(c).5 The PCBOE

Defendants filed their first Motion to Dismiss on September 20, 2019, which was mooted by

Plaintiffs’ decision to file an Amended Complaint on October 3, 2019. See Order, ECF No. 20.

The PCBOE Defendants filed a second Motion to Dismiss addressing the Amended Complaint on

October 17, 2019. See PCBOE Mot. to Dismiss, at 1. On October 25, 2019, Coey and Starcher

followed with their own Motion to Dismiss. See Coey/Starcher Mot. to Dismiss, at 1. The issues

have since been fully briefed and are ripe for resolution.

II. STANDARD OF REVIEW

Under Rule 8(a) of the Federal Rules of Civil Procedure, a complaint need only contain “a

short and plain statement of the claim showing that the pleader is entitled to relief.” In turn, Rule

12(b)(6) provides an avenue for a party to challenge a complaint for failure to meet this threshold,

and authorizes courts to dismiss complaints that fail “to state a claim upon which relief can be

granted.” To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

5 The Amended Complaint also references the Civil Rights Act of 1964 in passing, see Am.

Compl., at ¶¶ 24, 88, 92, but points to no particular provision of the Act that would apply directly

to this case. These references appear related to the fact that Section “504 was patterned after § 601

of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race in federally

funded programs.” Bowen v. Am. Hosp. Ass’n, 476 U.S. 610, 624 (1986). As such, the Court reads

the Amended Complaint as raising claims under three statutory umbrellas—the ADA, Section 504,

and the WVHRA—with Section 601 of the Civil Rights Act of 1964 acting as a statutory precursor

to Section 504.

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

plausibility is not always a bright line, it is well established that a “claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Id. Mere “[t]hreadbare recitals of the elements

of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Similarly, courts

are not required to consider “unwarranted inferences, unreasonable conclusion, or arguments.”

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

Nevertheless, the purpose of a motion to dismiss is to test the formal sufficiency of a claim

for relief—not to resolve the facts or merits of a case. 5A Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure § 1356 (3d ed. 1990). It follows that a court may only grant a

motion to dismiss if, “after accepting all wellpleaded allegations in the plaintiff’s complaint as true

and drawing all reasonable factual inferences from those facts in the plaintiff’s favor, it appears

certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (emphasis added). With this standard in mind, the

Court turns to a discussion of Defendants’ motions.

III. DISCUSSION

Defendants confront essentially two categories of claims: federal claims under the ADA

and Section 504, and state claims under the WVHRA. Defendants essentially contend that

Plaintiffs have failed to state a claim upon which relief may be granted with respect to either

category, and alternatively advance several immunity arguments. The Court undertakes an analysis

of both sets of claims below.

A. Federal Claims

Both the ADA and Section 504 prohibit disability-based discrimination against qualified

individuals. See 42 U.S.C. § 12132 (ADA) (“[N]o qualified individual with a disability shall, by

reason of such disability, be excluded from participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to discrimination by any such entity.”);

29 U.S.C. § 794(a) (Section 504) (“No otherwise qualified individual with a disability . . . shall,

solely by reason of her or his disability, be excluded from the participation in, be denied the

benefits of, or be subjected to discrimination under any program or activity receiving Federal

financial assistance.”). As Plaintiffs’ claims against the individual defendants and the PCBOE

implicate distinct legal issues, the Court will consider both categories of defendants separately.

1. Individual Defendants

At the outset, the Court notes that Plaintiffs raise their federal claims against the individual

defendants solely in their official capacities. Am. Compl., at ¶ 94. This much is appropriate, as

personal-capacity damages are not available under the ADA or Section 504 against individuals

who are not employers. See Baird v. Rose, 192 F.3d 462, 471–72 (1999) (reasoning that “[b]ecause

Title VII does not authorize a remedy against individuals for violation of its provisions, and

because Congress has made the remedies available in Title VII applicable to ADA actions, the

ADA does not permit an action against individual defendants for retaliation for conduct protected

by the ADA”); Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261, 1264 n. 9 (4th Cir. 1991)

(applying same analysis to the ADA and Section 504 “[b]ecause the language of the two statutes

is substantially the same”). Addressing these official-capacity claims, the individual defendants

focus keenly on alleged factual shortcomings in the Amended Complaint. This attention is natural

enough, as both the PCBOE defendants and Coey and Starcher move for dismissal pursuant to

Rule 12(b)(6). Yet their arguments sidestep Plaintiffs’ much more clear-cut jurisdictional

shortcoming: that “[a]n official-capacity suit is a suit for injunctive relief,” Bess v. Kanawha Cnty.

Bd. of Educ., No. 2:08-cv-01020, 2009 WL 3062974, at *9 (S.D.W. Va. Sept. 17, 2009), which

Plaintiffs unambiguously do not seek. Am. Compl., at 20. As such, dismissal of Plaintiffs’ federal

claims is warranted with respect to the individual defendants.

2. Putnam County Board of Education

Unlike when raised against individuals, the ADA permits damage awards against public

entities and Section 504 permits damage awards against recipients of federal funds. Barnes v.

Gorman, 536 U.S. 181, 186–87 (2002). It thus falls to the Court to determine whether Plaintiffs

have stated plausible claims for relief under the ADA and Section 504 with respect to the PCBOE.

To state a claim for retaliation under the ADA, a plaintiff must establish “(1) that she has engaged

in conduct protected by the ADA; (2) that she suffered an adverse action subsequent to engaging

in the protected conduct; and (3) that there was a causal link between the protected activity and

the adverse action.” Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205, 216 (4th Cir. 2002).

Importantly, a plaintiff is not “required to show that she is a ‘qualified individual with a disability

to establish a prima facie case for retaliation.” Moore v. Loney, No. GLR-11-2638, 2014 WL

671446, at *10 (D. Md. Feb. 19, 2014). Indeed, “[b]y its own terms, the ADA’s retaliation

provision seeks to protect all individuals who assist in the Act’s enforcement, and who may thereby

draw the ire” of those who violate its mandates. Settle v. S.W. Rodgers, Co., Inc., 998 F. Supp.

657, 662 n. 8 (E.D. Va. 1998). Inasmuch as the ADA and Section 504 are “generally are construed

to impose the same requirements,” Baird, 192 F.3d at 468, the same elements apply to a claim for

retaliation under Section 504. See Hooven-Lewis v. Caldera, 249 F.3d 259, 271-72 (4th Cir. 2001).

With this framework in mind, Plaintiffs has succeeded in stating a claim for relief that is

plausible on its face. Plaintiffs allege that Z.S.J. was subject to an unwritten policy requiring that

he be dropped off away from other nondisabled children. In turn, they claim the protected activity

that is “shielded from retaliatory conduct is the advocacy for a lawful accommodation in

opposition to acts or practices that may be unlawful.” Resp. in Opp’n to PCBOE Mot. to Dismiss,

ECF No. 25, at 9. Inasmuch as the goal of the ADA anti-retaliation provision is to “protect all

individuals who assist in the act’s enforcement,” Settle, 998 F. Supp. at 662 n. 8, Plaintiffs’

advocacy on behalf of their son constitutes a “protected activity.”

Whether Plaintiffs suffered an adverse action is likewise a straightforward inquiry.

Plaintiffs discuss Jones’ “threatening and hostile” meeting with Director Griffith and Chief

Starcher at the school board office. Am. Compl., at ¶¶ 76–78. They recount Cole’s alarming phone

call with several administrators and Starcher, during which she was allegedly threatened with her

husband’s imprisonment. Id. at ¶ 66. They point to Coey’s decision to obtain criminal complaints

against Jones based on “materially false statements,” and the PCBOE’s subsequent inaction. Id. at

¶¶ 82, 86. Taken together, these allegations plausibly represent an “adverse action” within the

meaning of the ADA and Section 504.

The final element of an anti-retaliation claim depends on a causal connection between

Plaintiffs’ advocacy and the adverse actions they have alleged. They cite text messages between

Starcher and Griffith that demonstrate a degree of approval for Starcher’s allegedly threatening

approach to Jones, specifically predicated on the fact that Jones was a “difficult man.” Id. at ¶ 79.

They also point to the close temporal relationship between Jones’ advocacy for his son and the

initiation of criminal proceedings against him, and argue that this gives rise to an inference that a

causal connection existed between both events.6 Resp. in Opp’n to PCBOE Mot. to Dismiss, at 14.

While these allegations alone do not establish a causal connection, they do plausibly allege one.

As a final matter, the Court acknowledges the PCBOE Defendants’ argument that the board

is not liable for the conduct of either Coey or Starcher. They point to Lacasse v. Didlake, Inc., 712

F. App’x 231 (4th Cir. 2018), for the proposition that vicarious liability will not lie against an

employer where no employment or agency relationship has been formed. PCBOE Mem. of Law,

ECF No. 22, at 11. As a statement of law, this is true enough. Yet the facts alleged in the Amended

Complaint are suggestive of just such an agency relationship between Coey and Starcher and the

school board. From the memorandum governing Coey’s conduct at the school to the content of

text messages exchanged by Griffith and Starcher, it appears that much of this case stems from the

officers’ attempts to enforce school policies. See Am. Compl., at ¶¶ 13, 80. While further factual

development will doubtless provide a fuller picture of the actual relationship between the officers

and the board, Plaintiffs’ factual allegations are taken as true at this stage of litigation. As such,

this Court has little trouble concluding that Plaintiffs have succeeded in stating a claim for relief

against the school board under the ADA and Section 504.

B. State Claims

Plaintiffs’ next category of claims falls under the anti-retaliation provision of the WVHRA,

though they are based on the same course of conduct raised with respect to their federal claims.

As above, the Court will undertake separate analyses of Plaintiffs’ claims as alleged against the

individual defendants and the PCBOE.

6 Defendants place great weight upon the fact that Officer Coey and Chief Starcher are not

PCBOE employees. Formally speaking, this much is true. Yet Plaintiffs present specific factual

allegations suggesting that the PCBOE exercised a great deal of control over their actions, ranging

from Starcher’s participation in administrative meetings to the existence of a memorandum

governing Coey’s actions at the elementary school. Am. Compl., at ¶¶ 13, 79.

1. Individual Defendants

Under the WVHRA, it is unlawful for “any person being the owner, lessee, proprietor,

manager, superintendent, agent or employee of any place of public accommodations to . . . [r]efuse,

withhold from or deny to any individual because of his or her . . . disability, either directly or

indirectly, any of the accommodations, advantages, facilities, privileges, or services of the place

of public accommodations.” W. Va. Code § 5-11-9(6)(A). Relevant to this case, the WVHRA also

prohibits “any person, employer, employment agency, labor organization, owner, real estate

broker, real estate salesman or financial institution” from “[e]ngag[ing] in any form of reprisal or

otherwise discriminate against any person because he or she has opposed any practices or acts

forbidden under this article.” Id. at § 5-11-9(7)(C). To state a claim for retaliation under the

WVHRA, plaintiffs must allege (1) that they were engaged in a protected activity, (2) that the

defendants were aware of the protected activity, (3) that the defendants subsequently took adverse

action against them, and (4) that the adverse action followed their protected activity within such a

period of time that retaliatory motivation can be inferred. See Frank’s Shoe Store v. W. Va. Hum.

Rts. Comm’n, 365 S.E.2d 251, 259 (W. Va. 1986) (retaliatory discharge claim).

The first of these elements—the requirement that Plaintiffs engage in a “protected

activity”—is most immediately relevant for the purposes of disposing of the instant motions. The

Supreme Court of Appeals of West Virginia has broadly construed the types of “protected activity”

covered by the WVHRA, interpreting its anti-retaliation provision as prohibiting “an employer or

other person from retaliating against any individual for expressing opposition to a practice that he

or she reasonably and in good faith believes violates the provisions of the Human Rights Act.”

Hanlon v. Chambers, 464 S.E.2d 741, 754 (W. Va. 1995). This standard has objective and

subjective components. An individual’s “opposition must be reasonable in the sense that it must

be based on a set of facts and a legal theory that are plausible,” but it must also “be honestly held

and more than a cover for troublemaking. Id. The subjective component of this test is readily

satisfied here, as there is little doubt that Plaintiffs’ opposition to the drop-off policy was honestly

held. The objective component is satisfied as well, as Plaintiffs have alleged that the school’s drop-

off policy denied Z.S.J. equal “accommodations, advantages, facilities, privileges, or services of

[a] place of public accommodations” because of his disability. See W. Va. Code § 5-11-9(6)(A).

Having established that Plaintiffs engaged in a protected activity in advocating for their

son, the next three elements of a WVHRA anti-retaliation claim follow naturally. It appears clear

that the defendants were aware of Plaintiffs’ opposition to the school’s unwritten drop-off policy.

It is also evident that the defendants subsequently took adverse action against Plaintiffs, whether

through the several threats identified throughout the Amended Complaint or through Jones’

allegedly malicious prosecution.7 The close temporal correlation between the events of August 27

(the day of Z.S.J.’s confrontational drop-off) and August 28 (the day of Plaintiffs’ unpleasant

encounters with Defendants) is likewise readily apparent.

Defendants counter by focusing on Plaintiffs’ actions beyond strictly advocating for their

son—entering a school without identification, for example. Coey and Starcher in particular

contend that “[i]t cannot be stressed enough that Plaintiffs[’] own facts fail to demonstrate that

Plaintiff Jones [was] arrested for a discriminatory purpose,” and that “Plaintiff Jones has no one

to blame but himself for his dangerous and misguided actions.” Coey/Starcher Mem. of Law, ECF

No. 24, at 9. Overheated rhetoric aside, the defendants raise an important point. As this action

moves forward, further factual development will likely clarify the circumstances surrounding these

7 While Coey is the defendant responsible for obtaining the criminal complaints against

Jones, Plaintiffs allege that she did so “with the participation, agreement, and approval of Hudson,

Griffith, Hatfield, and Starcher.” Am. Compl., at 82.

events and Defendants will be free to rebut Plaintiffs allegations of retaliation with their own

evidence. See Skaggs v. Elk Run Coal Co., Inc. 479 S.E.2d 561, 581–82 (W. Va. 1996). Yet it

bears repeating that, for the purposes of a motion to dismiss, Plaintiffs have alleged sufficient facts

to state a claim for relief.

As a final matter, the Court disagrees with the individual defendants’ arguments that they

are statutorily immune from liability. Under West Virginia law, “[a]n employee of a political

subdivision is immune from liability unless . . . [h]is or her acts or omissions were manifestly

outside the scope of employment or official responsibilities . . . [or h]is or her acts or omissions

were with malicious purpose, in bad faith, or in a wanton or reckless manner.” W. Va. Code § 29-

12A-5(b). The individual defendants point to this language and argue that “Plaintiffs have failed

to allege any facts to support allegations of malicious or reckless behavior or behavior done in bad

faith.” PCBOE Reply Mem., ECF No. 26, at 10. To the contrary, the bulk of Plaintiffs’ claims stem

from allegedly malicious or reckless conduct. They characterize Jones’ prosecution as explicitly

“malicious,” and allege that Defendants acted in bad faith for their roles in threatening both

Plaintiffs with Jones’ arrest. See, e.g., Am. Compl., at ¶¶ 93. Whether Plaintiffs will be able to

prove malice or bad faith is admittedly a different question—one inappropriate for resolution at

the motion to dismiss stage.

2. Putnam County Board of Education

Resolution of Plaintiffs’ WVHRA claims against the PCBOE is straightforward. Under the

West Virginia Governmental Tort Claims Act, “a political subdivision is liable in damages in a

civil action” where “injury, death, or loss to persons or property [is] caused by the negligent

performance of acts by their employees while acting within the scope of employment.” W. Va.

Code § 29-12A-4(c)(2) (emphasis added). Simply put, West Virginia political subdivisions are not

liable for the intentional malfeasance of their employees.8 See, e.g., Gilco v. Logan Cnty. Comm’n,

No. 2:11-0032, 2012 WL 3580056, at *7–8 (S.D.W. Va. Aug. 17, 2012) (citing Mallamo v. Town

of Rivesville, 477 S.E.2d 525, 533 (W. Va. 1996)). Plaintiffs cite to no authority suggesting that an

exception applies here, and instead simply cite to the statutory definition of “place of public

accommodations.” See W. Va. Code § 5-11-3(j). While this is true, it does not alter the fact that

West Virginia statutory immunity shields political subdivisions from liability stemming from the

intentional acts of its employees.

Here, Plaintiffs have simply not pleaded facts that would support a finding of negligence

by the PCBOE. They appear to admit as much, arguing forcefully—though incorrectly—that

Defendants’ allegedly intentional conduct is not subject to statutory immunity. See Resp. in Opp’n

to PCBOE Mot. to Dismiss, at 17–18. Even conduct that would otherwise appear negligent—the

PCBOE’s failure to “make any reasonable inquiry regarding the malicious criminal prosecution

initiated against” Jones, for example—is explicitly couched in intentional terms. Am. Compl., at

¶ 93 (characterizing the PCBOE’s actions as “a separate and distinct act of retaliatory,

discriminatory conduct, bad faith and gross misjudgment”). Absent any allegations of negligence,

liability will not lie against the PCBOE.

8 The Court recognizes that an immunity regime subjecting political subdivisions to

liability for negligent—but not intentional—conduct may appear perplexing at first glance, yet the

negligence provision contained in section 29-12A-4(c)(2) works in concert with section 29-12A-

5(b), which imposes liability upon employees of political subdivisions where their conduct is in

bad faith, malicious, or wanton and reckless. See Kelley v. City of Williamson, W. Va., 655 S.E.2d

528, 535 (W. Va. 2007) (“Before any final resolution can be reached in this case, a jury must

determine whether [Defendant] acted in a negligent manner, thus subjecting the City to liability

for his actions under West Virginia Code § 29-12A-4(c)(2), or if his acts were in bad faith,

malicious, or wanton and reckless, thus subjecting [Defendant] to liability under West Virginia

Code § 29-12A-5(b).”).

IV. CONCLUSION

For the reasons explained above, the Court GRANTS IN PART the PCBOE Defendants’

Motion to Dismiss, ECF No. 21, with respect to Plaintiffs’ state law claims against the Board and

federal claims against Defendants Hudson, Griffith, and Hatfield, but DENIES IN PART the

motion with respect to Plaintiffs’ state law claims against Defendants Hudson, Griffith, and

Hatfield and federal claims against the Board. The Court further GRANTS IN PART Defendants

Coey and Starcher’s Motion to Dismiss, ECF No. 23, with respect to Plaintiffs’ federal claims, but

DENIES IN PART their motion with respect to Plaintiffs’ state law claims.

The Court DIRECTS the Clerk to send a copy of this Opinion and Order to counsel of

record and any unrepresented parties.

ENTER: January 9, 2020