Schmitz

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No. 5:25-CV-553-BO-KS

THERESA SCHMITZ, )

Plaintiff,

v. GRDER

WAKE COUNTY BOARD OF

EDUCATION, ef al., )

Defendants.

This cause comes before the Court on defendants’ motion to dismiss and plaintiff's motion

for preliminary injunction. [DE 22]; [DE 5]. The appropriate responses and replies have been filed,

or the time for doing so has expired, and both motions are ripe for disposition. For the reasons that

follow, defendants” motion to dismiss is granted and plaintiff's motion for preliminary injunction

is denied.

BACKGROUND

Plaintiff, who proceeds in this action pro se, filed a complaint against the Wake County

Board of Education and individual employees of the Wake County Public School System alleging

claims under the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act

(Section 504), and for violation of her rights under the First Amendment pursuant to 42 U.S.C. §

1983. [DE 1]. Plaintiff alleges that she is bcth an employee of the Wake County Public Schoo]

System (WCPSS) and the parent of a child with a disability who previously received special

education services through WCPSS. During the relevant time periods, defendant Darrell Propst

was the Principal of Swift Creek Elementary School, where plaintiff is employed as a classroom

teacher. Defendant Jonathan Enns was the Regional Superintendent for WCPSS and defendants

Tanisha McCoy, Jerry Griffin, and Carla Winthrow were in Employee Relations positions at

WCPSS.

Plaintiff alleges that, as both a parent and a teacher, she advocated for compliance with

federal education and civil rights laws and that WCPSS retaliated against her for doing so. She

alleges that she was reassigned to a less favorable position, that she was excluded from IEP

meetings for which she was teacher of record, that her requested accommodations were refused,

and that she was subjected to a hostile work environment. /d. J 12-13; 16-17. Plaintiff specifically

identifies complaints she raised both internally and externally, including an ADA/504 retaliation

complaint in September 2024 which plaintiff contends was not handled properly and resulted in

plaintiff's reassignment, an ADA/504 complaint in May 2025 which resulted in plaintiff, herself,

being investigated, and a formal ethics complaint to the Wake County Board of Education in July

2025 in which plaintiff documented Propst’s retaliatory conduct against plaintiff. Jd. § 20-25.

In August 2025, plaintiff requested an ADA/504 accommodation in the form of leave, but

was told that WCPSS did not offer that type of leave. Plaintiff alleged that she submitted

documentation supporting her request and need for temporary leave due to the hostile work

environment, but WCPSS did not engage in an interactive process with her or provide her with her

requested accommodation. /d. ff] 26-27. Plaintiff alleges that, due to defendants’ retaliatory

conduct, she has experienced significant emotional distress and health-related harm which has

been documented by her medical providers. /d. ¥ 28.

Defendants have moved to dismiss plaintiff's complaint pursuant to Rules 12(b)(1) and

12(b)(6) of the Federal Rules of Civil Procedure.

DISCUSSION

Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal of a claim for lack of subject

matter jurisdiction. “Subject-matter jurisdiction cannot be forfeited or waived and should be

considered when fairly in doubt.” Ashcroft v. Iqbal, 556 U.S. 662, 671 (2009) (citation omitted).

When subject-matter jurisdiction is challenged, the plaintiff has the burden of proving jurisdiction

to survive the motion. Evans v. B.F. Perkins Co., 166 F.3d 642, 647-50 (4th Cir. 1999). When a

facial challenge to subject-matter jurisdiction is raised, the facts alleged by the plaintiff in the

complaint are taken as true, “and the motion must be denied if the complaint alleges sufficient

facts to invoke subject matter jurisdiction.” Kerns v. United States, 585 F.3d 187, 192 (4th Cir.

2009). The Court can consider evidence outside the pleadings without converting the motion into

one for summary judgment. See, e.g., Evans, 166 F.3d at 647.!

A Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be

granted tests the complaint’s legal and factual sufficiency. See Fed. R. Civ. P. 12(b)(6). The focus

is on the pleading requirements under the Federal Rules, not the proof needed to succeed on a

claim. “Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the

claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what

the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007) (cleaned up). This standard does not require detailed factual allegations, id.. but it “demands

more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Nadendla_ □□

WakeMed, 24 F.4th 299, 305 (4th Cir. 2022) (citation omitted). “To survive a motion to dismiss,

a complaint must contain sufficient factual matiter, accepted as true, to ‘state a claim to relief that

' Although defendants have cited to Rule 12(b)(1) in their motion to dismiss, the Court has not

identified any argument therein that the Court lacks subject matter jurisdiction. The Court thus

considers defendants’ motion under Rule 12(b)(6).

is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662. 678 (2009) (quoting Twombly, 550 U.S.

at 570). Fora claim to be plausible, its factual content must permit the court to “draw the reasonable

inference that the defendant is liable for the misconduct alleged.” /d.

“[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards

than formal pleadings drafted by lawyers[.]” Estelle v. Gamble, 429 U.S. 97, 106 (1976) (internal

quotation and citation omitted). However, a court does not “act as an advocate for a pro se litigant.”

Gordon y. Leeke, 574 F.2d 1147, 1152 (4th Cir. 1978), nor is it required to ‘discern the

unexpressed intent of the plaintiff]. Williams v. Ozmint, 716 F.3d 801, 805 (4th Cir. 2013)

(citation omitted).

A. Section 1983 claims

Plaintiff brings a claim under 42 U.S.C. § 1983 for liability against the Wake County Board

of Education under Monell v. Department of Social Services of the City of New York, 436 U.S.

658, 690-94 (1978). Under Monell, a local government can be held liable under 42 U.S.C. § 1983

for its unconstitutional policies. A school board may also be held liable for its unconstitutional

policies under Monell. See Riddick y. Sch. Bd. of City of Porismouth, 238 F.3d 518, 522 n.3 (4th

Cir. 2000). Liability is limited, however, and is not available against a municipality or schoolboard

merely for employing a tortfeasor. /d. at 522. Liability under Monell results only “when execution

of a government's policy or custom, whether made by its lawmakers or by those whose edicts or

acts may fairly be said to represent official policy, inflicts the injury ....° Monell, 436 U.S. at

694.

A policy or custom for which a municipality may be held liable can arise in four

ways: (1) through an express policy, such as a written ordinance or regulation; (2)

through the decisions of a person with final policymaking authority; (3) through an

omission, such as a failure to properly train officers, that ‘manifest[s] deliberate

indifference to the rights of citizens’; or (4) through a practice that is ‘so persistent

and widespread’ as to constitute a “custom or usage with the force of law.”

Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (internal quotations omitted).

Plaintiff alleges that the WCPSS “maintained a policy, practice, and custom of ignoring

ADA/504 complaints, misclassifying them as personnel issues, and shielding retaliatory actors

while punishing those who engaged in protected activity.” [DE 1] § 32. Plaintiff further alleges

that the Board of Education had notice of plaintiffs constitutional claims and that it failed to act,

constituting deliberate indifference and ratification. /d. § 34. Plaintiffs allegations of a policy,

practice, and custom of ignoring ADA and Section 504 complaints are conclusory. See also Carter

v. Morris, 164 F.3d 215, 218 (4th Cir. 1999) (“The challenged policy or custom cannot merely be

the abstract one of violating citizens’ constitutional rights.”). Her supporting allegations further

concern conduct directed only at her, and she has failed to plausibly allege the existence of any

“relevant incident prior to her own case of which the [Board of Education] could have had

knowledge and in which it acquiesced[,]” thus supporting the existence of a permanent and

widespread practice which could demonstrate a custom. /d. at 220; see also Barrett v. Bd. of Educ.

of Johnston Cnty., N.C., 590 F. App’x 208, 210 (4th Cir. 2014). Nor do plaintiff's allegations

plausibly support deliberate indifference by the Board of Education, which “is a stringent standard

of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his

action.” Connick v. Thompson, 563 U.S. 51, 61 (2011) (internal quotation and citation omitted).

As to her claim for ratification by the Board of Education, plaintiff has failed to allege any specific

action by the Board which would show that it made its own decision to uphold an unconstitutional

practice of its subordinates. See Starbuck v. Williamsburg James City Cnty. Sch. Bd.,28 F.Ath 529,

534 (4th Cir. 2022) (“Ratification liability does not hold a municipality liable for the actions of

subordinate officials; rather, it holds the municipality liable for its own decision to uphold the

actions of subordinates.”). Plaintiff has alleged that she notified the Board of Education through a

formal written ethics complaint which documented defendant Propst’s retaliation against her and

that the Board of Education failed to take any corrective action. This is insufficient to support a

claim under the theory of ratification liability, as she has failed to point to any action by the Board

of Education to uphold Propst’s conduct. See Gray v. Charlotte Secondary Sch. Inc., No. 3:23-

CV-347-RJC-DCK, 2024 WL 2789488, at *4 (W.D.N.C. Mar. 29, 2024), report and

recommendation adopted, No. 3:23-CV-00347-RJC-DCK, 2024 WL 2787813 (W.D.N.C. May 30,

2024) (allegation that school board had authorized termination and was in constant contact with

principal who terminated plaintiff's employment sufficient at early stage of case to allege

ratification liability). Moreover, “[fJailing to punish a completed (alleged) constitutional violation

does not give rise to municipal liability under a ratification theory for the related reason that *post-

facto approval ... cannot possibly have caused the constitutional violation..” Fox v. City of

Greenville, No. 4:23-CV-00133-M, 2024 WL 3093583. at *7 (E.D.N.C. June 21, 2024) (quoting

Franklin v. City of Charlotte, 64 F.4th 519, 537 (4th Cir. 2023)). Plaintiff has failed to state a claim

against the Board of Education under Monell, and this claim is dismissed.

Plaintiff has also alleged claims against defendants for violation of her First Amendment

rights by retaliating against her. Plaintiff has alleged this claim against WCPSS and defendants

Propst, Enns, McCoy, Griffith, and Winthrow, each of whom have been named in both their

individual and official capacities.

Plaintiff's First Amendment retaliation claim against the individual defendants in their

official capacities is another way of pleading her claim against the Board of Education itself, and

is thus duplicative. Kentucky v. Graham, 473 U.S. 159, 165 (1985) COfficial-capac ity suits...

‘generally represent only another way of pleading an action against an entity of which an officer

is an agent.’” (citation omitted)). As discussed above, plaintiff has not identified any policy,

custom, or practice of the Board of Education which resulted in any constitutional injury.

Plaintiff's First Amendment claim against the individual defendants in their official capacities is

dismissed.

Plaintiff has also alleged her First Amendment retaliation claim against the individual

defendants in their individual capacities, and they have raised the defense of qualified immunity.

Qualified immunity shields government officials from liability for statutory or constitutional

violations so long as they can reasonably believe that their conduct does not violate clearly

established law. Harlow v. Fitzgerald, 457 U.S. 800. 818 (1982). A court employs a two-step

procedure for determining whether qualified immunity applies “that asks first whether a

constitutional violation occurred and second whether the right violated was clearly established.”

Melgar v. Greene, 593 F.3d 348, 353 (4th Cir. 2010): see also Pearson v. Callahan, 555 U.S. 223,

236 (2009) (courts “permitted to exercise their sound discretion in deciding which of the two

prongs of the qualified immunity analysis should be addressed first in light of the circumstances

in the particular case at hand.”). Qualified immunity protects “all but the plainly incompetent or

those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

“As a general matter, the First Amendment prohibits government officials from subjecting

individuals to retaliatory actions after the fact for having engaged in protected speech.”

Houston Cmty. Coll. Sys. v. Wilson, 595 U.S. 468, 474 (2022) (cleaned up). To establish a First

Amendment retaliation claim under § 1983, a plaintiff must demonstrate that “(1) he engaged in

protected First Amendment activity, (2) the defendant took some action that adversely affected his

First Amendment rights, and (3) there was a causal relationship between his protected activity and

the defendant’s conduct.” Martin v. Duffy. 858 F.3d 239, 249 (4th Cir. 2017) (cleaned up).?

> While a plaintiff does not need establish a prima facie case of a discrimination claim to survive a

motion to dismiss, she must nonetheless “allege facts to satisfy the elements of a cause of action[,]”

Plaintiff has alleged that she engaged in speech and advocacy for the rights of students with

disabilities and compliance with federal laws, which plaintiff has plausibly alleged are matters of

public concern. Plaintiff further alleges that, as a result of her advocacy, she was excluded from

IEP meetings, reassigned, subjected to hostile conduct, and denied reasonable accommodations.

Even assuming, without deciding, that plaintiff engaged in protected speech and suffered adverse

action, her complaint fails to plausibly allege any causal relationship between her protected

expression and adverse action. To establish the causation element, “it is not enough that the

protected expression played a role or was a motivating factor in the retaliation; claimant must show

that ‘but for’ the protected expression the employer would not have taken the alleged retaliatory

action.” Huang v. Bd. of Governors of Univ. of N. Carolina, 902 F.2d 1134, 1140 (4th Cir. 1990).

Plaintiff alleges that after she raised concerns about IEP inconsistencies, colleagues filed

retaliatory complaints against her, and defendant Propst responded by investigating plaintiff.

Plaintiff has not alleged, however, that defendant Propst, or any other defendant, had any

knowledge of her alleged protected expression when he or they took any action against her. As

plaintiff has failed to plausibly allege a violation of her First Amendment rights, the individual

defendants in their individual capacities are entitled to qualified immunity. Alternatively, plaintiff

has failed to state a plausible First Amendment claim against these defendants.

B. ADA/Section 504 claims

Plaintiff alleges a claim for failure to accommodate in violation of the ADA and Section

504. “To the extent possible, [courts] construe the ADA and Rehabilitation Act to impose similar

recjuirements.” Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454, 461 (4th Cir, 2012).To

McCleary-Evans v. Maryland Dep't of Transp., State Highway Admin., 780 F.3d 582, 585 (4th

Cir. 2015), and “reference to the elements of a [] claim is helpful to gauge the sufficiency of the

allegations.” Gaines v. Balt. Police Dep't, 657 F.Supp.3d 708, 734 (D. Md. 2023).

state a claim for failure to accommodate in violation of the ADA, a plaintiff must show “(1) that

he was an individual who had a disability within the meaning of the statute; (2) that the employer

had notice of his disability; (3) that with reasonable accommodation he could perform the essential

functions of the position; and (4) that the employer refused to make such accommodations.” Wilson

v. Dollar Gen. Corp., 717 F.3d 337, 345 (4th Cir 2013) (cleaned up, citation omitted).

Plaintiff has failed to allege that she is an individual with a disability within the meaning

of the statute. Plaintiff alleges that after she was denied accommodations in retaliation for her

protected activities she suffered from physical and mental health conditions. But those conditions,

which developed after she requested accommodations. cannot serve to form the basis of her

disability which would entitle her to accommodation in the first place. Plaintiff also alleges that

she requested paid administrative leave as a reasonable accommodation. Under the ADA, a

reasonable accommodation can include “*permitting the use of accrued paid leave or providing

additional unpaid leave for necessary treatment[.]"” /d. at 345 (quoting 29 C.F.R. § 1630.2(0)

(Appendix) (2011)). “[A] leave request will not be unreasonable on its face so long as it (1) is for

a limited, finite period of time; (2) consists of accrued paid leave or unpaid leave; and (3) is shown

to be likely to achieve a level of success that will enable the individual to perform the essential

functions of the job in question.” /d. n.7. Here, plaintiff has not alleged that her requested

accommodation consisted of accrued paid leave, that it would be for a limited, finite period, or that

by accommodating her request plaintiff would have been likely to perform the essential functions

of her job. Plaintiff has thus failed to plausibly allege a claim for failure to accommodate.

Finally. plaintiff has failed to plausibly allege a claim for retaliation in violation of the

ADA or Section 504. A plaintiff establishes a prima facie case of retaliation under either statute

“by showing (1) that he engaged in protected activity, (2) that the [defendant] took an adverse

action against him, and (3) that the adverse action was causally connected to his protected activity.”

S.B. ex rel. A.L. v. Bd. of Educ. of Harford Cnty., 819 F.3d 69, 78, 78 n.6 (4th Cir. 2016). “An

alleged retaliatory action must be ‘materially adverse,” meaning that the plaintiff must show that

the action ‘well might have dissuaded a reasonable worker from making or supporting a charge of

discrimination.*” Laird v. Fairfax Cnty., Virginia, 978 F.3d 887, 893 (4th Cir. 2020) (citation

omitted).

Plaintiff alleges that she engaged in protected activity by advocating for students with

disabilities and filing ADA/504 complaints. She further alleges that she was retaliated against by

being reassigned. excluded from IEP meetings. forced to tolerate hostile conduct by a co-worker,

and being denied requested accommodations. Plaintiff also alleges that defendants refused to

participate in OCR-offered mediation of her retaliation complaint. compounding the adverse

treatment she received. First, plaintiff has failed to plausibly allege that she suffered adverse action.

While reassignment can constitute adverse action, plaintiff offers no factual allegations which

would plausibly support that “the transfer brought about some ‘disadvantageous’ change in an

employment term or condition.” Muldrow y. City of St. Louis, Missouri, 601 U.S. 346, 354 (2024).

Plaintiff's characterization of the transfer as being to a less favorable position, without more, is

insufficient, even at this early stage, to plausibly support her claim that she suffered adverse action.

Plaintiff's complaint further fails to plausibly allege that any of the other alleged adverse actions

she has identified would have dissuaded a reasonable employee from engaging in protected

conduct.

Moreover, plaintiff has failed to plausibly allege a causal connection between any protected

activity and adverse action. In order to establish causation, a plaintiff must ultimately show that

the employer knew of plaintiff's protected activity before taking adverse action against her. See

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Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998) □□□□

employer cannot take action because of a factor of which it is unaware [and] the employer's

knowledge that the plaintiff engaged in a protected activity is absolutely necessary to establish the

third element of the prima facie case.”). Plaintiff alleges that she advocated for students with

disabilities, but she does not allege that Propst or any of the other defendants knew of her advocacy

prior to taking any alleged retaliatory actions. In sum, plaintiff's claim for retaliation is conclusory,

and she has failed to plausibly allege a claim for relief.

Plaintiffs arguments in opposition to the motion to dismiss do not lead to a different result.

In her opposition, plaintiff at times seeks to add factual support to her claims, but a plaintiff may

not amend her complaint through her opposition to a motion to dismiss. See Neal v. Sandhills Ctr.,

737 F. Supp. 3d 291, 296 (M.D.N.C. 2024). The Court also notes that plaintiff has filed a number

of supplemental documents and exhibits since the filing of her complaint. [DE 17]; [DE 18]; [DE

19]; [DE 28]; [DE 30]. Though plaintiff proceeds pro se, the Court is not tasked with “combing

through the record” to find support for her claims. Howell v. Upgrade, Inc., No. 6:24-CV-04228-

JDA-WSB, 2024 WL 5683321, at *I (D.S.C. Dec. 6, 2024). Plaintiff mistakenly argues in her

opposition that defendants have not moved to dismiss her Monel// claim and otherwise generally

recites the elements of her causes of action without persuasively arguing that the allegations in her

complaint have nudged her claims across the line from conceivable to plausible. See Twombly, 550

U.S. at 570.

Accordiigly, defendants’ motion to dismiss plaintiff's complaint is granted. As plaintiff

cannot therefore show that she is likely to succeed on the merits of any of her claims, her motion

for preliminary injunction is denied. See Winter v. Nat'l Resource Def. Council, 555 U.S. 7, 20

(2008).

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CONCLUSION

For the foregoing reasons, defendants’ motion to dismiss [DE 22] is GRANTED. Plaintiff's

claims against defendants are DISMISSED with prejudice for failure to state a claim upon which

relief can be granted. Plaintiff's motion for preliminary injunction [DE 5] is DENIED.

The Clerk is DIRECTED to enter judgment and close the case.

SO ORDERED, this {3 day of April 2026.

TERRENCE W. BOYLE /

UNITED STATES DISTRICT JUQRGE

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