FOR THE WESTERN DISTRICT OF VIRGINIA Harrisonburg Division … · This incident occurred during his...
Transcript of FOR THE WESTERN DISTRICT OF VIRGINIA Harrisonburg Division … · This incident occurred during his...
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
Harrisonburg Division GABRIEL KHALIL HUSSEIN DEEN, ) Plaintiff, ) Civil Action No. 5:16-cv-79 ) v. ) REPORT & RECOMMENDATION ) SHENANDOAH COUNTY ) PUBLIC SCHOOLS, et al., ) By: Joel C. Hoppe Defendants. ) United States Magistrate Judge Plaintiff Gabriel Khalil Hussein Deen, proceeding pro se, brought this action for civil
rights violations under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
§ 2000e-2(a), and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621–
634. Compl. 2–4, ECF No. 1-1. Deen names as Defendants Dr. Mark A. Johnston, the
Superintendent of Shenandoah County Public Schools, and the Shenandoah County School
Board (“Shenandoah”).1 Pending before the Court is the Defendants’ Motion to Dismiss, ECF
No. 8, to which Deen has responded, ECF Nos. 13, 16, 18. This motion is before me by referral
under 28 U.S.C. § 636(b)(1)(B). ECF No. 12. The Court held a hearing on April 6, 2017. At that
hearing, the Court invited Deen to identify specific allegations to support his claims of
discrimination. Deen submitted additional evidence and argument, ECF Nos. 21, 22, and the
Defendants filed a response, ECF No. 24.2 The motion to dismiss is ripe for decision. After
1 Deen named “Shenandoah County Public Schools” as a Defendant in his complaint. Compl. 2. The Defendants, however, noted in both the Notice of Removal and subsequent filings that the proper defendant is the Shenandoah County School Board. See, e.g., Defs.’ Notice of Removal, ECF No. 1. 2 After the Defendants filed their response, Deen filed a supplemental brief with exhibits. ECF No. 26. The Defendants moved to strike Deen’s supplement. ECF No. 28. Deen filed a response to the Defendants’ motion to strike, ECF No. 29, and he submitted additional briefing on their motion to dismiss, ECF Nos. 30, 31. As the Defendants note, Deen’s supplemental brief is not allowed under Local Rule 11(c)(1) and was filed without leave of court. Nonetheless, the Court observes that the supplemental brief and Deen’s other subsequent filings set forth the same arguments as in Deen’s other filings, contain no new exhibits, and are largely cumulative. Furthermore, these filings present no entirely new
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considering the pleadings, the parties’ briefs and oral arguments, and the applicable law, I find
that Deen has failed to state a claim that entitles him to relief. Therefore, I respectfully
recommend that the presiding District Judge grant the Defendants’ Motion to Dismiss.
I. Factual Allegations
When assessing a motion to dismiss, I must view all well-pled facts in the complaint in
the light most favorable to the plaintiff. Philips v. Pitt Cty. Mem’l Hosp., 572 F.3d 176, 180 (4th
Cir. 2009). In recognition of Deen’s pro se status and my obligation to hold his pleadings to “less
stringent standards than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89,
94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)), I will also consider
facts presented in his opposition briefs, Shomo v. Apple, Inc., No. 7:14cv40, 2015 WL 777620, at
*2 (W.D. Va. Feb. 24, 2015) (considering “both the complaint and the factual allegations in
Shomo’s response to the motion to dismiss in determining whether his claims can survive
dismissal”); Christmas v. Arc of the Piedmont, Inc., No. 3:12cv8, 2012 WL 2905584, at *1
(W.D. Va. July 16, 2012) (accepting as true facts from a pro se plaintiff’s complaint and brief in
opposition to decide a motion to dismiss), and any attached relevant documents, see Witthohn v.
Fed. Ins. Co., 164 F. App’x 395, 396 (4th Cir. 2006) (per curiam) (explaining that “a court may
consider . . . documents central to plaintiff’s claim . . . so long as the authenticity of these
documents is not disputed” without converting the motion to dismiss into a motion for summary
judgment). As to exhibits and other documents, “[w]hen the plaintiff attaches or incorporates a
document upon which his claim is based, or when the complaint otherwise shows that the
plaintiff has adopted the contents of the document,” I will credit the contents of the document
substantive allegations or legal authority; thus, any additional response by the Defendants is not necessary. The Court therefore will deny the motion to strike and consider Deen’s submissions.
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over contradictory allegations in the complaint. Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159,
167 (4th Cir. 2016).
Deen generally alleges that throughout his time as a substitute teacher in the Shenandoah
Public Schools, he was constantly subjected to harassment and unequal terms and conditions as
the only black male substitute teacher. Additionally, Deen alleges that at every school to which
he was assigned, he was written up for infractions he did not commit or for which he did not
receive notice, and he was never given the opportunity to defend himself or present his side of
the story.
Shenandoah hired Deen as a substitute on November 1, 2013. Compl. 2. Deen received a
“Welcome Substitute Teachers” letter (“Welcome Letter”) informing him of some of the basic
duties of the job. Pl.’s Second Reply Br. Ex. 4, ECF No. 16-4. Notably, the Welcome Letter
advised Deen to expect to encounter “[m]issing lesson plans [and] students who may try to take
advantage of you” while serving as a substitute. Id. Once he began teaching, Deen perceived that
he was monitored more closely than were white substitute teachers. In one instance, a school
receptionist photocopied his ID and required him to go through the lobby guard machine while
allowing the white substitutes to proceed without additional security screening. Compl. at 2–3.
This incident occurred during his first assignment at Ashby Lee Elementary School (“Ashby
Lee”) in March 2014, even though his name was on the substitute teacher list. Pl.’s Second
Reply Br. Ex. 8, ECF No. 16-8. Deen reported this incident to Johnston as evidence of
discrimination, id., and, as he conceded at oral argument, nothing of the sort happened again.
On March 13, 2014, Johnston delivered to Deen a letter explaining that individuals at
Ashby Lee and Sandy Hook Elementary School (“Sandy Hook”) had requested that he be
excluded from substituting in their schools because of his “failure to follow lesson plans, poor
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classroom management, and lack of professionalism in communicating with students and staff.”
ECF No. 21-1. This was the first time Deen heard that others in the school system had concerns
about him.
In response to these issues, Deen sent a letter to Johnston explaining his version of
events. Pl.’s Second Reply Br. Ex. 6, ECF No. 16-6. Deen blamed the problems on teachers
leaving inadequate lesson plans for him and the aides assigned to his classrooms giving him little
to no help. Id. He further noted that he felt the incidents had racial overtones because he got odd
looks and comments while at the schools, and he observed students wearing clothing emblazoned
with the Confederate flag. Id. at 3. Prompted by these concerns, he requested a meeting with
Johnston, which took place on April 2, 2014. Id. Johnston spent most of the meeting lecturing
Deen about an EEOC discrimination seminar that he had recently attended even though Deen
had requested the meeting to address the allegations leveled against him. Pl’s Second Reply Br.
1, ECF No. 16. When they did discuss the Ashby Lee and Sandy Hook incidents, Johnston urged
Deen to delete a school from the list of schools where he would substitute3 and encouraged him
to apply to a neighboring county school system, which Deen felt had lower academic standards.
Pl.’s Reply Br. 1, ECF No. 13. Johnston also explained a substitute teacher’s duties, such as
handing out homework left by the teacher, going by the lesson plans, and saying nothing
additional to the students. Pl.’s Second Reply Br. 1. He further provided Deen with instructional
materials containing suggestions for classroom activities for middle school and high school
students once the designated lesson plans had been completed for the day, but Deen
characterized this discussion as unrelated to the reason he requested the meeting. ECF No. 21-8.
3 A follow-up letter from Johnston on April 4, 2014, indicates that Deen’s preferences had been changed in the substitute assignment system to exclude his availability at all elementary schools. Pl.’s Second Reply Br. Ex. 7, ECF No. 16-7.
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Johnston ultimately got very angry with Deen for requesting the meeting and wasting his time.
Pl.’s Second Reply Br. 1.
During oral argument, Deen explained that he also encountered hostility while teaching at
Central High School (“Central”) in December 2014. One student called him a “nigger” and
threatened to “kick his ass.” ECF No. 21-2 at 1. Deen immediately brought this to the attention
of an assistant principal who summarily dismissed his report and sent the student back to his
classroom with no repercussions. Id. Deen also was subjected to racially charged taunts from
students at Signal Knob Middle School (“Signal Knob”). For example, students asked him
whether he liked fried chicken and watermelon, ate greens, and had Ebola. Despite informing
school administrators of these incidents, no action was taken, and he continued to be subjected to
similar questions after complaining.4
Deen also experienced retaliation for providing feedback of white teachers who left him
with inadequate lesson plans, or no lesson plans at all, or whose students were unruly and out of
control when Deen served as the substitute. Compl. 2; Pl.’s Second Reply Br. Ex. 6. He provided
the Court with numerous examples of lesson plans that he deemed inadequate and difficult to
follow. See Pl.’s Second Reply Br. Exs. 1–2, ECF Nos. 16-2, 16-3; ECF Nos. 21-3, 21-6. His
chief complaint with these plans was that the lack of specificity inhibited his ability to effectively
perform as a substitute, which in turn enabled other teachers to make him a scapegoat for their
own poor performances. Pl.’s Second Reply Br. Ex. 6. Deen provided feedback about these
teachers because he believed it was welcomed by Shenandoah, based on his understanding of
substitute teacher training in October 2013 and the Welcome Letter he received shortly before
starting. Id. at 3. He also claims that Johnston further encouraged his suggestions and approved 4 During the hearing, Deen discussed the incidents at Signal Knob, but he did not mention them in any filing with the Court. He also did not elaborate on when or how frequently these incidents occurred, nor did he identify anyone whom he notified of their occurrence.
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the feedback form Deen had developed. Pl.’s Reply Br. 1. The other teachers, however, were
angered by Deen’s use of this form and accordingly wrote unsubstantiated negative reports to
administrators about him. Pl.’s Second Reply Br. 1. Johnston then credited those teachers’
accounts without giving Deen a chance to explain his side of the story. Compl. 3.
Additionally, Deen notes that his qualifications easily satisfy the requirements for
serving as a Shenandoah substitute teacher. He has a Bachelor of Arts degree from Pfeiffer
College and a Master of Science degree from Winthrop College. ECF No. 21-19, at 3–4. As the
minimum criteria, Shenandoah requires its substitutes to be at least twenty years old, have a high
school diploma or General Equivalency Diploma, and attend a substitute teacher training. ECF
No. 21-7. Although the Defendants maintain that Deen did not get along with any of his
colleagues, he did have at least two positive references from full-time Shenandoah teachers. ECF
No. 21-17. Nevertheless, Johnston contacted Deen on May 27, 2015, and informed him that
individual teachers and school administrators had requested he be removed from the substitute
list solely because of concerns about his ability to meet the demands of substitute teaching. ECF
No. 21-18. Deen has not been contacted to work in any of Shenandoah’s schools since then.
Compl. 2.
The confluence of these events led Deen to believe that he was subjected to
discrimination because of his race (African-American), sex (male), national origin (Sierra
Leone), religion (Muslim), and age (sixty-nine), in violation of Title VII and the ADEA. Id. at 3.
Additionally, Deen contends he was retaliated against because he “wrote up white teachers who
were not doing their job.” Id. Deen suggests that he was initially offered employment by
Shenandoah to give the appearance of complying with nondiscrimination laws, after which time
he was immediately subjected to screening not required of the similarly situated white substitutes
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who were less qualified and less experienced. Pl.’s Reply Br. 2. Moreover, Deen argues that
Johnston manufactured lies about him as a ruse to justify getting rid of him because Johnston
could not find legitimate grounds for termination. Pl.’s Second Reply Br. 1. He avers that this led
schools he never taught at to request that he be removed from their substitute list. Compl. 2. As
such, Deen believes that Shenandoah did not want him as a substitute teacher because of his race,
sex, national origin, religion, and age.
II. Discussion
A. Standard of Review
The Defendants argue that Deen has failed to plead facts sufficient to state a claim. Defs.’
Br. in Supp. of Mot. to Dismiss 1–5, ECF No. 9 (“Defs.’ Br. in Supp.”). In order to survive a
motion to dismiss under Rule 12(b)(6), a complaint must “state[] a plausible claim for relief” that
“permit[s] the court to infer more than the mere possibility of misconduct.” Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009). In making this determination, the Court accepts as true all well-
pled facts and construes those facts in the light most favorable to the plaintiff. Philips, 572 F.3d
at 180. The Court need not, however, accept legal conclusions, formulaic recitation of the
elements of a cause of action, or “bare assertions devoid of further factual enhancements,” as
those are not well-pled facts for Rule 12(b)(6)’s purposes. Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citing Iqbal, 556 U.S. at 678).
Plaintiffs must plead enough facts to “nudge[] their claims across the line from
conceivable to plausible,” and a court should dismiss a complaint that is not “plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Determining whether a complaint
states a plausible claim for relief is “a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. Federal courts have
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an obligation to construe pro se pleadings liberally, so that any potentially valid claim can be
fairly decided on its merits rather than the pro se litigant’s legal acumen. Rankin v. Appalachian
Power Co., No. 6:14cv47, 2015 WL 412850, at *1 (W.D. Va. Jan. 30, 2015) (citing Boag v.
MacDougall, 454 U.S. 364, 365 (1982)). Still, “a pro se plaintiff must . . . allege facts that state a
cause of action, and district courts are not required ‘to conjure up questions never squarely
presented to them.’” Considder v. Medicare, No. 3:09cv49, 2009 WL 9052195, at *1 (W.D. Va.
Aug. 3, 2009) (quoting Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985)), aff’d,
373 F. App’x 341 (4th Cir. 2010).
B. Analysis
Deen alleges violations of Title VII and the ADEA. Compl. 2. His allegations of a Title
VII violation invoke claims for disparate treatment, hostile work environment, and retaliation.
He also vaguely asserts a procedural due process challenge.5 Id. at 2–3. Deen, however, fails to
plead facts sufficient to state a claim, and therefore the Defendants’ Motion to Dismiss should be
granted.
1. Johnston’s Individual Liability
The Defendants argue that Deen’s claims against Johnston in his individual capacity
should not be permitted to go forward because Title VII and the ADEA do not provide for
individual liability. Defs.’ Br. in Supp. 2–3. The Defendants are correct; Title VII and the ADEA
do not provide for a cause of action against an individual. See Lissau v. Southern Food Serv.,
Inc., 159 F.3d 177, 178 (4th Cir. 1998) (“Employees are not liable in their individual capacities
for Title VII violations.”); Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510–11 (4th Cir.
1994) (explaining that the individual employee was not a proper defendant because “the ADEA 5 In a response brief, Deen asserts that Shenandoah and Johnston were involved in nepotism and gross discrimination in their hiring practices, Pl.’s Third Reply Br. 1, ECF No. 18, but offers no factual support or elaboration. Accordingly, these claims, to the extent Deen actually brings them, must be dismissed.
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limits civil liability to the employer”). Therefore, I recommend that all claims against Johnston
be dismissed with prejudice, as he is not subject to liability under Title VII or the ADEA.
2. Title VII Claims
a. Disparate Treatment
Deen alleges disparate treatment by Shenandoah based on his race, sex, national origin,
and religion. Compl. 2–3. Title VII prohibits an employer from “discharg[ing] any individual, or
otherwise . . . discriminat[ing] against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race, color, religion, sex,
or national origin,” and from “limit[ing], segregat[ing], or classify[ing] his employees . . . in any
way which would deprive or tend to deprive any individual of employment opportunities or
otherwise adversely affect his status as an employee, because of such individual’s race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1)–(2). Such a claim can be proved
either by direct evidence or, absent such evidence, through the burden-shifting approach
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Trans World
Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985). The first step in the McDonnell Douglas
approach for disparate treatment claims is proving a prima facie case of discrimination under
Title VII, which involves demonstrating four elements: “(1) membership in a protected class; (2)
satisfactory job performance; (3) adverse employment action; and (4) different treatment from
similarly situated employees outside the protected class.” Coleman v. Md. Court of Appeals, 626
F.3d 187, 190 (4th Cir. 2010).
Shenandoah argues that Deen fails to state a claim solely because he does not
demonstrate satisfactory job performance. Defs.’ Br. in Supp. 4. The prima facie case, however,
“is an evidentiary standard, not a pleading requirement.” Swierkiewicz v. Sorema N.A., 534 U.S.
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506, 510 (2002). As such, Deen need not prove his prima facie case to survive Shenandoah’s
motion to dismiss. Id. at 510–12. That said, the proper standard does require Deen to “do more
than ‘plead[] facts that are merely consistent with a defendant’s liability;’ the facts alleged must
‘allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.’” Woods v. City of Greensboro, 855 F.3d 639, 647 (4th Cir. 2017) (quoting Iqbal, 556
U.S. at 678). Furthermore, these allegations must “‘satisfy the elements of a cause of action
created by [the relevant] statute’ in compliance with Iqbal.” Id. at 648 (quoting McCleary-Evans
v. Md. Dep’t of Transp., 780 F.3d 582, 585 (4th Cir. 2015)). This standard applies in all civil
cases, including claims of discrimination, and “the Court must consider the plausibility of
inferring discrimination based on [the plaintiff’s] allegations in light of an ‘obvious alternative
explanation’ for the conduct.” Id. at 647, 649 (quoting Iqbal, 556 U.S. at 682).
Here, Deen fails to meet the plausibility standard so as to allow the Court to draw a
reasonable inference that Shenandoah is liable for disparate treatment. Although he identifies
three discernible examples of what he believes to be disparate treatment by Shenandoah, as well
as numerous vague contentions surrounding his experience as a substitute teacher, Deen’s
allegations are conclusory and do not plausibly show that a discriminatory reason motivated the
decision to remove him from the substitute teacher list.
First, Deen identified the screening a receptionist subjected him to on his first day at
Ashby Lee. Deen asserts that the receptionist required him, but not the white female substitutes,
to go through additional security measures. Deen infers that the receptionist subjected him to this
oversight because of his race and Muslim-sounding name, but he provides no other facts from
which the Court could make such an inference. Even taken as true, this incident cannot, by itself,
establish a Title VII claim. Contrary to Deen’s position, this single security screening event is
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not an adverse employment action as it had no effect on the terms of his employment. See James
v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th Cir. 2004) (“An adverse employment
action is a discriminatory act which ‘adversely affect[s] the terms, conditions, or benefits, of the
plaintiff’s employment.’” (quoting Von Gunten v. Maryland, 243 F.3d 858, 865 (4th Cir. 2001))).
Moreover, nothing links this single event involving a school receptionist to the adverse
employment action, i.e., his eventual removal by Johnston from the substitute list at individual
schools or for the entire school system in Shenandoah. See Rutenschroer v. Starr Seigle
Commc’ns, Inc., 484 F. Supp. 2d 1144, 1156 (D. Haw. 2006) (explaining that the allegation by
the female plaintiff that she was reprimanded on one occasion for the same conduct that a male
colleague engaged in yet received no reprimand was not evidence of discriminatory conduct
because it had no connection to her termination). Indeed, when Deen brought this incident to
Johnston’s attention, Johnston took action, and Deen was never again subjected to security
screening.
Next, Deen alleges that Shenandoah must have discriminated against him because he was
highly qualified to be a substitute teacher. See, e.g., Pl.’s Reply Br. 1. He posits that because he
has the credentials to be a substitute teacher, and indeed is more qualified than some full-time
teachers, the only explanation for Shenandoah’s treatment of him is grounded in racial and
religious animus. See, e.g., Pl.’s Second Reply Br. 1–2. Deen is correct that his credentials far
exceed the minimum requirements to be hired as a substitute at Shenandoah, but his singular
focus on his qualifications is misplaced as it ignores the distinction between being qualified for
the job and actual performance. Cf. Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 514 (4th Cir.
2006) (“Once a person is hired, the distinction between qualifications and job expectations tends
to blur. An employee may be qualified when hired, but could fail either to maintain his
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qualifications, or, more commonly, to meet his employer’s legitimate expectations for job
performance.”).
As to his performance, Deen provides exhibits showing conflicting assessments. On the
one hand, references from two Shenandoah teachers assert that Deen performed well in their
classrooms. ECF No. 21-17. On the other hand, communications between Deen and Johnston
consistently reference complaints about Deen’s performance from multiple sources, and on more
than one occasion, Johnston recommended ways Deen could be a more effective substitute
teacher. See, e.g., ECF Nos. 21-1, 21-8, 21-16, 21-18. Because Johnston managed the substitute
teacher program, these latter communications provide more insight into Shenandoah’s
assessment of Deen’s performance than the recommendations of two teachers. Although Deen
challenges Shenandoah’s assessment, courts view an employee’s performance from the
perspective of the employer, not the employee. See Hawkins v. PepsiCo, Inc., 203 F.3d 274, 280
(4th Cir. 2000). Deen’s allegations and the exhibits he attached to his filings plainly show that
Johnston and others in the school system had concerns about his performance. Deen disagrees
with the basis for their concerns, but he acknowledges that those concerns existed. Thus, Deen’s
strong qualifications for the substitute teacher position alone do not show that his performance
was up to his employer’s legitimate expectations.
Third, Deen contends that his removal from the substitute list at schools where he never
taught also shows Shenandoah’s discriminatory animus. He surmises that schools removed him
from their lists because they were afraid of him based on stereotypes stemming from his race,
“Muslim-sounding” name, and accent, or based on unsubstantiated allegations that he suggests
were rooted in fears of these same traits. Compl. 3; Pl.’s Reply Br. 1–2; Pl.’s Second Reply Br.
Ex. 6, at 3. This conclusion misses the mark, as nowhere does Deen identify any facts that could
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lead the Court to make such an inference. Deen’s suspicions are mere conjecture and do not rise
above the level of speculation necessary to state a claim. See Woods, 855 F.3d at 647.
Conversely, Johnston’s letters, which Deen provided to the Court, set forth facially neutral
reasons—including “failure to follow lesson plans, poor classroom management, and lack of
professionalism in communicating with students and staff,” ECF No. 21-1 (March 13, 2014), and
“concerns related to [Deen’s] ability to meet the demands of serving as a substitute teacher,”
ECF No. 21-18 (May 27, 2015)—from schools requesting that he be removed from their
substitute lists.6
Deen’s remaining allegations are too general and conclusory to plausibly establish that
Shenandoah discriminated against him because of his race, sex,7 national origin, or religion.
Deen argues generally that he was the only black male substitute teacher in the school system,
set up for failure by Johnston and others, held to different standards than other teachers, and
frequently provided with inadequate lesson plans that prevented him from doing his job. Compl.
2. He also asserted during oral argument that school personnel made comments in his presence
suggesting he was not supposed to be there, he was assigned to extra classes causing him to miss
his lunch breaks, his assigned aides never helped him during the day, and administrators and
other teachers ignored him and did not speak to him throughout the day.
Some of the challenges Deen faced in his work assignments, such as missing lesson
plans, are similar to those identified in the Welcome Letter as confronting all substitute teachers.
Thus, those circumstances do not suggest that Deen was discriminated against based on his
6 Deen argues that these letters represent drummed-up allegations in order to get rid of him because of his race, but again, he provides no facts from which to draw such an inference. 7 Notably, like his ADEA claim, see infra Pt. II.B.3, other than identifying himself as a member of the protected class, i.e., the only male substitute teacher in Shenandoah, Deen offers no facts or allegations of discrimination based on his sex.
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membership in a protected class. Indeed, he conceded during oral argument that he had no
evidence that the Defendants’ actions stemmed from discriminatory animus and that instead he
merely speculated as such because of his experiences with racism in America. In a Title VII case,
however, connecting actions to discriminatory animus is crucial. See Dugan v. Albemarle Cty.
Sch. Bd., 148 F. Supp. 2d 688, 696 (W.D. Va. 2001) (explaining that the plaintiff bore the burden
to “show that she was not provided full-time employment because she is white, female, or over
forty; not that she was denied full-time employment and she is white, female, or over forty”).
Here, Deen’s pleadings and additional allegations submitted after oral argument do not link his
perceptions of societal racism to the actions of Shenandoah teachers or administrators.
Additionally, other than the screening incident, Deen does not make any non-conclusory
allegations that substitute teachers outside the protected class(es) were treated differently, or
better, than him. Furthermore, Deen’s admitted criticism of other teachers’ performance provides
a ready explanation for their unwillingness to socialize with him or reluctance to have him as a
substitute. See Woods, 855 F.3d at 649 (“the Court must consider the plausibility of inferring
discrimination based on [the plaintiff’s] allegations in light of an ‘obvious alternative
explanation’ for the conduct.”). Accordingly, Deen’s disparate treatment claim must fail because
he has not demonstrated any plausible connection between his protected traits and Shenandoah’s
decision to remove him from the substitute list.8
8 Deen submitted multiple lesson plans that he deemed inadequate. But Deen has offered no facts suggesting that he was forced to deal with inadequate (or in some instances no) lesson plans because of his protected traits and that other teachers did not encounter the same problems. Moreover, the Welcome Letter notified all substitutes that they should expect to take assignments with missing lesson plans. See Pl.’s Second Reply Br. Ex. 4. At most, Deen’s dissatisfaction with the quality of lesson plans amounts to a disagreement with Shenandoah and its teachers over what constitutes an adequate lesson plan and is thus an ordinary workplace dispute in which the Court will not intervene. Cf. Hawkins, 203 F.3d at 276 (explaining that the plaintiff demonstrated merely “a routine difference of opinion and personality conflict with her supervisor,” and as such, the court would not “transmute such ordinary workplace disagreements between individuals of different races into actionable race discrimination”).
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b. Hostile Work Environment
Deen’s factual allegations also implicate a claim for a hostile work environment,
particularly as it relates to the two specific racially charged experiences with students at
Shenandoah schools. To prevail on a claim for a hostile work environment under Title VII, Deen
must demonstrate that there is “(1) unwelcome conduct; (2) that is based on [his] . . . race; (3)
which is sufficiently severe or pervasive to alter [his] conditions of employment and to create an
abusive work environment; and (4) which is imputable to the employer.” Boyer-Liberto v.
Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (en banc). Deen’s hostile work
environment claim primarily stems from alleged treatment at the hands of Shenandoah students.9
He identified one specific instance of a Central student calling him a “nigger” and threatening to
“kick his ass.” Deen claims to have alerted an assistant principal at Central of this incident, but
no disciplinary action was taken against the student. He also notes that students at Signal Knob
peppered him with racially charged questions. The Defendants argue that Shenandoah cannot be
held liable for this conduct because the appropriate individuals, including Johnston, were not put
on notice of the conduct.
Although student-on-teacher harassment presents an uncommon factual scenario for an
employment discrimination claim, it nonetheless can provide the basis for a hostile work
environment claim under Title VII. See Peries v. N.Y.C. Bd. of Educ., No. 97CV7109(ARR),
9 To the extent his allegations of additional screening on his first day at Ashby Lee could be construed as part of his hostile work environment claim, such facts do not create actionable discrimination. Deen admitted at oral argument that he was subjected to this screening on only one occasion. He brought it to the attention of Johnston, see Pl.’s Second Reply Br. Ex. 8, and did not encounter such treatment again. A coworker’s discriminatory action is generally not imputable to an employer under a hostile work environment claim if the employer acts to remedy, and does in fact stop, the discrimination alleged. See Foster v. Univ. Md. Eastern-Shore, 787 F.3d 243, 255 (4th Cir. 2015) (holding that the employer was not liable for sexual harassment by a coworker when it promptly investigated the complaint and took effective action to stop the harassment).
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2001 WL 1328921, at *5–6 (E.D.N.Y. Aug. 6, 2001); see also Eyo v. Orangeburg Consol. Sch.
Dist. Five, No. 5:12cv3345-JMC, 2015 WL 1423164, at *8 (D.S.C. Mar. 27, 2015); Mongelli v.
Red Clay Consol. Sch. Dist. Bd. of Educ., 491 F. Supp. 2d 467, 477–78 (D. Del. 2007). In Peries,
the plaintiff, a high school special education teacher born in Sri Lanka, alleged that students
subjected him to a “steady barrage of insults and demeaning conduct . . . based on [his] national
origin and race” that continued virtually unabated for five years. Peries, 2001 WL 1328921, at
*1–2. The court acknowledged the unusual source of the harassment and determined that the
most analogous cases involved employees alleging customer-initiated harassment. Id. at *5–6.
These customer-harassment cases established that an employer’s duty could be no greater than
that owed in instances of coworker harassment, and in certain circumstances, could invoke a
lesser duty if the employer genuinely lacked authority to control a customer’s behavior. Id.
Referencing the Supreme Court’s decision in Davis v. Monroe County Board of Education, 526
U.S. 629 (1999), which held that school boards and administrators could be liable for student-on-
student harassment in part because they wielded significant authority to control student behavior,
the Peries court found that a school board could also be liable in student-on-teacher harassment
cases. Id. (“[A]s a general rule, school administrators and school board officials have disciplinary
authority that exceeds that of a classroom teacher, such as the power to suspend students and
take other actions not commonly carried out by individual classroom instructors.”). The district
court then concluded that to prevail under a hostile work environment claim predicated on
student-on-teacher harassment, Peries would have to show first that a hostile work environment
existed and second that such harassment was imputable to the school board because it either
“provided no reasonable avenue of complaint or knew of the harassment and failed to take
appropriate remedial action.” Id. Because Peries made a satisfactory showing that the students’
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conduct created a hostile work environment and that liability could be imputed to the employer,
his claim survived summary judgment. Id.
The Fourth Circuit has adopted a similar test, specifically that “an employer is liable
under Title VII for third parties creating a hostile work environment if the employer knew or
should have known of the harassment and failed ‘to take prompt remedial action reasonably
calculated to end the harassment.’” Freeman v. Dal-Tile Corp., 750 F.3d 413, 423 (4th Cir.
2014) (quoting Amirmokri v. Balt. Gas & Elec. Co., 60 F.3d 1126, 1131 (4th Cir. 1995)); see
also Elitharp-Martin v. Pulaski Cty. Sch. Bd., 62 F. Supp. 3d 515, 522 (W.D. Va. 2014). In
Freeman, the court found that the plaintiff’s employer could be liable for racial and sexual
harassment perpetrated by one of its customers, an independent sales representative who
frequently interacted with the plaintiff, under this third-party harassment doctrine. 750 F.3d at
416–18, 422–23. In Elitharp-Martin, a case from this District, a former school board member
and current parent continued to sexually harass the plaintiff, a special education director for the
school district, after he left his position on the school board. 62 F. Supp. 3d at 517. The court
denied the defendant’s motion to dismiss and found that this third-party harassment could be
imputed to the school board because the plaintiff repeatedly complained about this conduct to
school system administrators. Id. at 522. The rationale in these cases of third-party hostile work
environment claims demonstrates that Shenandoah could be liable for any student-on-teacher
harassment that was sufficient to create a hostile work environment.
Here, the gravity of Deen’s allegations should not be understated. The students’ alleged
conduct is deplorable, and there is no question that it meets the first two prongs of a hostile work
environment claim, in that it was unwelcome and racially motivated. See White v. BFI Waste
Servs., LLC, 375 F.3d 288, 298 (4th Cir. 2004) (“Perhaps no single act can more quickly alter the
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conditions of employment and create an abusive working environment than the use of an
unambiguously racial epithet such as ‘nigger’ by a supervisor in the presence of his
subordinates.” (quoting Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001)));
Roberts v. Fairfax Cty. Pub. Schs., 858 F. Supp. 2d 605, 610 (E.D. Va. 2012) (addressing use of
the same epithet in the school setting, albeit by a full-time teacher directed toward her classroom
aide, and concluding that “[w]here such an abhorrent slur is alleged, there is no question that its
use was offensive, unwelcome, and racially motivated”). That does not mean, however, that the
utterance of such a slur automatically meets the third and fourth prongs. Courts examine the
totality of the circumstances in determining the degree of hostility or abuse thrust upon plaintiff.
See Spriggs, 242 F.3d at 184. “Relevant considerations ‘may include the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee’s work
performance.’” Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).
In light of these considerations, the conduct alleged by Deen is not sufficiently severe or
pervasive enough to create a hostile work environment, and thus he fails to prove an essential
element of his claim. The conduct alleged is reprehensible, but isolated. At Central, a student
called Deen a racial slur and threatened him with violence, and although Deen alleges no action
was taken against the student, he does not contend it happened again. At Signal Knob, students
subjected Deen to racist comments, but his allegations are vague as to how often he taught there
and how often students made the offensive remarks. These incidents of racially charged slurs
emanating from students, rather than a supervisor, are thus insufficient to create a hostile work
environment under Title VII. See Roberts, 858 F. Supp. 2d at 611 (“Such limited use of a racial
slur is insufficient to permeate Roberts’ work environment ‘with discriminatory intimidation,
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ridicule, and insult . . . that is sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment.’” (quoting Harris, 510 U.S. at
21)). Moreover, Deen has not alleged that he notified Johnston or any other Shenandoah school
administrator, as opposed to a principal or vice principal of a school, of the students’ use of
racial slurs or his concerns about the adequacy of the actions taken to address the students’
conduct at the two schools. Accordingly, he has not provided facts showing that this conduct is
imputable to Shenandoah. For all of these reasons, even assuming the veracity of the allegations
regarding the Central and Signal Knob incidents, Deen has not stated a claim for a hostile work
environment under Title VII, and this claim must be dismissed.
c. Retaliation Claim
Deen further contends he was retaliated against for reporting white teachers whose lesson
plans were inadequate or whose students were unruly and out of control. Compl. 2. A prima facie
Title VII retaliation claim requires the plaintiff to prove three elements: 1) that he engaged in
protected activity; 2) his employer instituted an adverse employment action against him; and 3)
there was a causal link between the protected activity and the adverse employment action. See
Boyer-Liberto, 786 F.3d at 281.
Shenandoah argues that Deen’s retaliation claim fails because he did not engage in
protected activity. Defs.’ Br. in Supp. 3–4. Protected activity consists of two categories of
conduct, either participation or opposition, and “[a]n employer may not retaliate against an
employee for participating in an ongoing investigation or proceeding under Title VII, nor may
the employer take adverse employment action against an employee for opposing discriminatory
practices in the workplace.” Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 259 (4th
Cir. 1998). Participatory activities include “(1) making a charge; (2) testifying; (3) assisting; or
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(4) participating in any manner in an investigation, proceeding, or hearing under Title VII.” Id.;
see also 42 U.S.C. § 2000e-3(a). On the other hand, “[o]pposition activity encompasses utilizing
informal grievance procedures as well as staging informal protests and voicing one’s opinions in
order to bring attention to an employer’s discriminatory activities.” Laughlin, 149 F.3d at 259.
Deen’s retaliation claim fails because the complained-of retaliation did not stem from
either form of protected activity. First, Deen does not allege that he participated in an ongoing
Title VII investigation. Second, he does not contend that his possible opposition activity was the
basis for Shenandoah’s purported retaliation. Although Deen provided two letters in March 2014
to Johnston explaining his perception that the accusations levied against him were related to his
race, sex, religion, and national origin, see ECF Nos. 16-6, 16-8, Deen does not argue that these
letters prompted Shenandoah to retaliate against him. Instead, he characterizes the retaliation as
being in response to the feedback forms that he created to assess various aspects of other
teachers’ performance, an activity that has nothing to do with any potential Title VII violation.
Simply put, then, any alleged retaliation here was not in response to protected activity, and thus
it cannot form the basis of a Title VII retaliation claim. Deen’s retaliation claim must be
dismissed.
3. ADEA Discrimination Claim
Deen also alleges a violation of the ADEA and claims he was discriminated against based
on his age. Compl. 2–3. The ADEA protects against arbitrary workplace discrimination based on
age, Lorillard v. Pons, 434 U.S. 575, 577 (1978), and an individual must be at least forty years
old to invoke the ADEA’s protections, 29 U.S.C. § 631(a). Analysis of an ADEA claim is the
same as a Title VII claim. See Dugan, 148 F. Supp. 2d at 694 (“Although the ADEA and Title
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VII address different types of employment discrimination, the methods by which a plaintiff may
prove discrimination under either statute are fundamentally the same.”).
Shenandoah does not address Deen’s ADEA claim in its brief. Nonetheless, the
complaint clearly does not meet the pleading standard to survive a motion to dismiss. Not once
in Deen’s narrative does he allege any facts that suggest the adverse employment action he
suffered had anything to do with his age. The ADEA protects employees from discrimination
when age is a determinative factor in the discrimination. Reeves v. Sanderson Plumbing, 530
U.S. 133, 141 (2000) (“[T]he plaintiff’s age must have ‘actually played a role in [the employer’s
decision making] process and had a determinative influence on the outcome.’” (quoting Hazen
Paper Co. v. Biggins, 507 U.S. 604, 610 (1993))). Merely being in the protected class under the
ADEA is insufficient to invoke its protections. Although Deen asserts that he is sixty-nine years
old, he does not plead any facts that could lead one to conclude that his age played a role in the
complained-of discrimination. Therefore, Deen’s ADEA claim must be dismissed.
4. Due Process Claim
Lastly, Deen asserts that he was not made aware of the complaints against him nor given
a chance to defend himself. Compl. 2. This claim attempts to invoke procedural due process. To
realize any benefit from the protections of the due process clause, Deen must first demonstrate
“that he has a constitutionally protected ‘liberty’ or ‘property’ interest, and that he has been
‘deprived’ of that protected interest by some form of ‘state action.’” Caperton v. Va. Dep’t of
Transp., No. 3:15cv36, 2015 WL 6510478, at *4 (W.D. Va. Oct. 28, 2015) (quoting Stone v.
Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 172 (4th Cir. 1988)). Without such a showing, “the
question of what process is required and whether any provided could be adequate in the
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particular factual context is irrelevant, for the constitutional right to ‘due process’ is simply not
implicated.” Id. (quoting Stone, 855 F.2d at 172).
Deen claims a protected property interest based on the Welcome Letter and October 2013
substitute teacher training. He also asserted during oral argument that he believed the Welcome
Letter constituted an employment contract granting him due process rights. Deen argues that the
letter and training show Shenandoah encouraged feedback from its substitute teachers,
particularly as it related to any deficiencies in the system and ways to improve the educational
programs. Pl.’s Second Reply Br. 2–3. Deen contends that he did just that when he completed
self-created substitute feedback forms. For providing this feedback, he suffered adverse
consequences and was never given a chance to defend himself. Deen also argues more generally
that he was not afforded an opportunity to respond to other complaints against him.
As a nontenured substitute teacher, Deen had no property interest in his job that would
entail any due process protections. “The law in Virginia is that, absent a continuing contract, a
teacher has no contract right for continued employment and no property interest in [his] job
entitling [him] to due process protection before [he] can be terminated.” See Severs v.
Waynesboro Sch. Dist., Civ. A. No. 91-0011-H, 1992 WL 88653, at *1 (W.D. Va. Jan. 23, 1992).
Virginia law requires a term of service of at least three consecutive years in the same school
division before a teacher can be issued a continuing contract. Va. Code. Ann. § 22.1-303(A)
(Repl. Vol. 2016); see also Corns v. Russell Cty. Va. Sch. Bd., 52 F.3d 56, 58 (4th Cir. 1995)
(explaining that in Virginia, “a teacher seeking continuing contract status must teach for a
unitary period of three consecutive school years while under contract”). In Severs, the court held
that the plaintiff did not show that she met the statutory requirements for establishing a
continuing contract, and as such, she had no protected property interest and was owed no due
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process. 1992 WL 88653, at *1–2. Deen began substitute teaching for Shenandoah in November
2013 and last taught in May 2015. Even assuming that a continuing contract could be attained by
substitute teachers, Deen did not meet the requisite length of time to establish such a contract.
Moreover, the Welcome Letter was simply that, and it bears no elements of a contract.
Therefore, he did not have a protected property interest in his job as a substitute teacher for
which Shenandoah owed him due process. Accordingly, the procedural due process claim must
be dismissed.
III. Conclusion
For the foregoing reasons, Deen fails to state a cause of action for which the Court can
grant relief, and his claims should be dismissed under Rule 12(b)(6). I therefore recommend that
the presiding District Judge GRANT the Defendants’ Motion to Dismiss, ECF No. 8, and
DISMISS this action.
Notice to Parties
Notice is hereby given to the parties of the provisions of 28 U.S.C. § 636(b)(1)(C):
Within fourteen days after being served with a copy [of this Report and Recommendation], any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.
Failure to file timely written objections to these proposed findings and recommendations
within 14 days could waive appellate review. At the conclusion of the 14 day period, the Clerk is
directed to transmit the record in this matter to the Honorable Michael F. Urbanski, United States
District Judge.
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The Clerk shall send a copy of this Report and Recommendation to the parties.
ENTER: June 9, 2017
Joel C. Hoppe United States Magistrate Judge