FRANK D. WHITNEY, Chief District Judge.
Subsequently, Defendant Duncan Gray ("Gray") and the Board (collectively, "Defendants") moved to dismiss the Amended Complaint pursuant to Rules 12(b)(1), 12(b)(2), and 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. Nos. 19, 31). Gray's motion is DENIED, and the Board's motion is GRANTED in part and DENIED in part.
Plaintiff is a former student at West Charlotte High School ("WCHS"), which is operated by the Board.
Plaintiff claims Mr. Gray was hired by the Board or the Board's agents at some time before the 2010-2011 school year. (Amd. Compl. at 3, ¶ 13). Mr. Gray allegedly "had a well-known and well-documented history of sexually harassing and engaging in inappropriate sexual behavior with students" and the Board knew of these prior incidents. (Amd. Compl. at 3, ¶14). Plaintiff alleges that even though Mr. Gray "was disciplined by and/or terminated from at least one" job because of his inappropriate sexual behavior, the Board hired Mr. Gray to serve at WCHS, where he was Plaintiff's band teacher for four years. (Amd. Compl. at 3, ¶ 15-16).
Plaintiff was enrolled at WCHS from 2010 until 2014. (Amd Compl. at 1). Plaintiff alleges that in Spring 2011 of his freshman year, Mr. Gray tutored Plaintiff and other students after school and would drive all of them home afterwards. (Amd. Compl. at 3, ¶¶ 18-19). After dropping off all the other students, Mr. Gray "would touch and squeeze Plaintiff's legs." (Amd. Compl. at 3, ¶ 19). Over the course of Spring 2011, Mr. Gray allegedly "spoke about homosexual acts more often and more openly to Plaintiff[,]" "began to make sexually suggestive comments . . . and sought to engage Plaintiff in appropriate sexual conversation while at school[,]" and "began calling Plaintiff to seek to engage him in sexually inappropriate conversations." (Amd. Compl. at 3-4, ¶¶ 21-23). According to Plaintiff, a cell phone was discovered with evidence showing Mr. Gray "sexually harassed and engaged in appropriate sexual behavior with other students" at WCHS, the Board was aware of Mr. Gray's actions, and as a result, the Board suspended Mr. Gray from March 10, 2011 until March 28, 2011. (Amd. Compl. at 4, ¶¶ 24-25).
Plaintiff alleges that upon returning to WCHS in Fall 2011, Mr. Gray ordered Plaintiff to attend after school tutoring once again. (Amd. Compl. at 4, ¶ 26). During one of these lessons, Plaintiff claims Mr. Gray "asked Plaintiff if he could touch Plaintiff's genitalia[,] touched Plaintiff's genitalia, then he sought to induce Plaintiff into touching [Mr. Gray's] genitalia." (Amd. Compl. at 4, ¶¶ 27-28). However, before anything else could take place, "someone began banging on the door" and Mr. Gray ran away. (Amd. Compl. at 4, ¶ 28).
After this incident, Plaintiff allegedly quit communicating with Mr. Gray and no longer attended tutoring, stopped attending tutoring. (Amd. Compl. at 4, ¶29). Plaintiff claims Mr. Gray persistently attempted to convince Plaintiff that sexual contact with Mr. Gray was okay. (Amd. Compl. at 4, ¶¶ 30-31). Plaintiff rejected further advances by Mr. Gray and Mr. Gray allegedly retaliated by: removing from his lead-chair position in the school band; "sought to marginalize Plaintiff's role in the school band by making disparaging comments about [Plaintiff] and about his musical abilities in the presence of other school band members"; and sought to prevent Plaintiff's graduation from WCHS by imposing a fine, which allegedly had no substantive merit, on Plaintiff shortly before Plaintiff's graduation date. (Amd. Compl. at 4-5, ¶¶ 32-37). According to Plaintiff, Mr. Gray told Plaintiff, "[i]f you say anything, I am going to get you." (Amd. Compl. at 5, ¶ 38).
A motion to dismiss pursuant to Rule 12(b)(1) shall be granted when a federal court lacks jurisdiction over the subject matter of a lawsuit. Fed. R. Civ. P. 12(b)(1). Federal courts have jurisdiction in "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. §1331. The burden of establishing federal subject matter jurisdiction rests on the Plaintiff.
"When a defendant moves to dismiss for lack of personal jurisdiction, the plaintiff ultimately bears the burden of proving to the district court judge the existence of jurisdiction over the defendant by a preponderance of the evidence[.]"
A motion to dismiss pursuant to Rule 12(b)(6) requires that a complaint allege sufficient facts to ascertain that a "claim is plausible rather than merely conceivable."
Plaintiff's Amended Complaint asserts ten causes of action against both Defendants: (1) Violation of Title IX; (2) Violation of 42 U.S.C § 1983; (3) Negligent Hiring, Supervision, and Retention; (4) Negligence, Gross Negligence; (5) Negligent Infliction of Emotional Distress; (6) Intentional and Negligent Infliction of Emotional Distress; (7) Assault; (8) Battery; (9) Violation of the North Carolina Constitution; and (10) Punitive Damages under N.C. Gen. State § 1D and 42 U.S.C. § 1983 for Malice or Wanton and Willful Conduct. (Doc. No. 14); (Doc. No. 32 at 2 (summarizing Plaintiff's claims)). The Court addresses Defendants' motions in turn.
Defendant Gray's Motion to Dismiss relies entirely on Rule 12(b)(6) of the Federal Rules of Civil Procedure. Gray argues Plaintiff's claims under Title IX and 42 U.S.C. § 1983 should be dismissed because neither claim provides for individual liability. For the reasons stated in Plaintiff's Response (Doc. No. 32), the Court disagrees with Defendant Gray and DENIES the motion to dismiss these claims. Because some of Plaintiff's justification for these claims centers on detailed allegations in the Amended Complaint, the Court's ruling herein is without prejudice to Defendant Gray to reassert these arguments at summary judgment if discovery establishes no issues of material fact on these allegations and shows Defendant Gray is entitled to judgment as a matter of law. As to Defendant Gray's other arguments, they are also denied. Plaintiff's Amended Complaint contains sufficient allegations to set forth plausible claims against Gray.
The Court notes that Defendant Gray has failed to abide by this Court's standing orders, which provide that a motion to dismiss made pursuant to Rule 12(b)(6) does not toll the time for filing an answer.
The Board moves to dismiss all of Plaintiff's claims. The Board argues Plaintiff's State Negligence and Tort Claims (third, fourth, fifth, sixth, seventh, and eighth claims) should be dismissed for lack of jurisdiction pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(2) because government immunity protects the Board and its employees from such claims. (Doc. No. 19 at 1). Further, the Board argues Plaintiff's first, second, sixth, seventh, eighth, and ninth claims should be dismissed because Plaintiff fails to state a claim upon which relief can be granted. (Doc. No. 19 at 1-2).
The Board argues governmental immunity bars Plaintiff's negligence and tort claims against it. Under North Carolina law, a county board of education is "not liable in a tort or negligence action except to the extent that it has waived its governmental immunity pursuant to statutory authority."
While admitting that the Board had excess liability insurance in 2010-2011, 2011-2012, 2012-2013, 2013-2014, and 2017-2018, the Board contends the insurance policies do not cover the state law negligence and tort claims alleged by Plaintiff. (Doc. Nos. 20 at 5-6;
These cases, as well as others from North Carolina courts, support the conclusion that the purchase of insurance policies with self-insured retention programs such as the one owned by the Board does not waive a board of education's governmental immunity. See
Accordingly, this Court finds the Board did not waive its governmental immunity as to the negligence and tort claims and, therefore, grants the Board's motion to dismiss as to Plaintiff's third, fourth, fifth, sixth, seventh, and eighth causes of action.
The Board moves to dismiss Plaintiff's remaining claims (first, second, and ninth claims) pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Court has reviewed the Amended Complaint, as well as the arguments and applicable law cited by both parties. Following review and application of the appropriate standard of review, the Court DENIES the Board's motion to dismiss these three claims. This ruling is without prejudice to the Board to re-assert their legal arguments, if appropriate, in a dispositive motion following discovery.
For the reasons that follow, the original motion to dismiss (Doc. No. 12) is DENIED AS MOOT, Gray's motion (Doc. No. 31) is DENIED, and the Board's motion (Doc. No. 19) is GRANTED in part and DENIED in part.
IT IS SO ORDERED.