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Tort/Negligence – Schools & School Boards – Abuse of Special Needs Student – Labor & Employment – Public Employees – Teacher – Wrongful Termination – Constitutional

Tort/Negligence – Schools & School Boards – Abuse of Special Needs Student – Labor & Employment – Public Employees – Teacher – Wrongful Termination – Constitutional

J.W. v. Johnston County Board of Education (Lawyers Weekly No. 12-02-0976, 29 pp.) (James C. Dever III, Ch.J.) 5:11-cv-00707; E.D.N.C.

Holding: Since no N.C. appellate court has recognized a fiduciary duty between a middle school student and his principal, superintendent or school board, this court will not so expand N.C. law.

Defendants’ partial motion to dismiss is granted in part and denied in part.


Defendants increased the size of plaintiffs’ special-needs class size and gave the plaintiff-teacher an incompetent teacher aide and a student aide who sexually abused the special-needs students. The plaintiff-student, J.W., was abused by the student aide.

Despite their knowledge of this incident and others, defendants failed to investigate, but they told J.W.’s mother that they were investigating and discouraged her from reporting the incident to the police.

Defendants told the plaintiff-teacher to stop advocating on behalf of her students as to class size and abuse by the student aide. Defendants declined to renew her teaching contract because of such advocacy.


Where the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act (Section 504), Title IX, and the Individuals with Disabilities Education Act (IDEA) do not create individual liability, the defendant-principal and the defendant-superintendent cannot be liable under these statutes.

The ADA and Section 504 borrow the two-year statute of limitations from the N.C. Persons with Disabilities Protection Act. The complaint’s allegations establish that the incidents and the accompanying injuries occurred during the 2008-09 school year. The complaint makes clear that plaintiffs were aware of the incidents and injuries at the time they occurred. Thus, plaintiffs’ claims under the ADA and Section 504 accrued no later than June 2009. Plaintiffs’ Dec. 7, 2011 complaint was not timely filed as to their ADA and Section 504 claims.

However, the statute of limitations did not begin to run as to J.W., a minor, until the court appointed a guardian ad litem for him on June 18, 2012. Thus, J.W.’s ADA and Section 504 claims are not time-barred.

The complaint alleges that, because of J.W.’s gender and disability, the principal and superintendent conspired to conceal evidence of the student aide’s abuse of J.W. and that these defendants would have reported and investigated the allegations of abuse if the student aide had abused a non-disabled student.

The complaint fails to allege facts identifying similarly situated persons whom defendants treated differently than J.W.  Rather, plaintiffs allege merely that “under circumstances in which a non-disabled child was subjected to the same or similar abuse, [defendants] would have investigated, secured the evidence, and reported the abuse to law enforcement….”

Such allegations — which do not rise above speculation — fail to establish a plausible basis for believing defendants treated J.W. differently than persons similarly situated. Thus, plaintiffs failed to state an equal protection claim.

The complaint also lacks factual allegations showing that it was plausible that the principal and superintendent intentionally discriminated against J.W. because he was a male.

Plaintiffs have failed to state a claim under either the Equal Protection Clause of the Fourteenth Amendment or N.C. Const. art. I, § 19.

Since the N.C. School Boards Trust (NCSBT) does not qualify as liability insurance under G.S. § 115C-42, the defendant-school board’s participation in the NCSBT does not waive the board’s governmental immunity. Although the NCSBT has secured excess coverage for the board for damages between $150,000 and $850,000, exclusions in the excess coverage agreement bar coverage for all of plaintiffs’ state-law claims. The court dismisses these claims against the board and against the principal and superintendent in their official capacities.

The complaint alleges that the principal and superintendent offered assurances to the teacher and J.W.’s mother that the principal and superintendent had reported the abuse accusations and that an investigation was underway, but that the principal and superintendent never actually filed a report or investigated the accusations. Plaintiffs also allege that the principal instructed the teacher and J.W.’s mother not to report the accusations and threatened to fire the teacher if she continued to inquire about an investigation.

A claim for common law obstruction of justice must allege conduct that interferes with an official proceeding that is pending or about to be instituted. The complaint lacks any allegations that defendants’ conduct interfered with a pending or potential official proceeding. Moreover, plaintiffs’ initiation of this action precludes any inference that defendants’ conduct interfered with plaintiffs’ ability to seek justice in court. Plaintiffs have failed to state a claim for obstruction of justice.

N.C. courts generally do not recognize fiduciary relationships between employers and employees. Plaintiffs have not alleged any facts to suggest the teacher’s employment relationship with defendants warrants an exception to this general rule. Accordingly, the teacher has not stated a claim for breach of fiduciary duty.

In an unpublished opinion, the N.C. Court of Appeals declined to extend the concept of fiduciary relationships to a medical resident working in a teaching hospital. Plaintiffs have not cited any N.C. appellate opinions holding that a fiduciary relationship exists in the middle school setting between a school board, school board superintendent, or principal, and a middle school student. Because this court is analyzing N.C. law under its supplemental jurisdiction, this court may not expand N.C. law to create a fiduciary duty between school boards, school superintendents, and principals and middle school students. If North Carolina is to expand public policy in this way, the N.C. legislature or Supreme Court must do so.

Accordingly, J.W. has failed to state a claim for breach of fiduciary duty against the board, the principal, and the superintendent. The court dismisses plaintiffs’ breach of fiduciary duty claim.

Since the teacher had an employment contract, she was not an at-will employee; therefore, she cannot state a claim for wrongful discharge. Alternatively, she was an untenured teacher. She had the opinion to appeal the non-renewal of her contract, and her failure to do so bars her wrongful-discharge claim.

No N.C. appellate court has yet recognized a private right of action for damages under the N.C. Constitution against a local school board for the denial of the privilege of education.

In fact, in a case involving analogous facts, the N.C. Court of Appeals recently refused to recognize a plaintiff’s constitutional claim that she was deprived of an education free from harm and psychological abuse. Doe v. Charlotte-Mecklenburg Bd. of Educ., 731 S.E.2d 245 (N.C. Ct. App. 2012). It is not the role of a federal district court to recognize new rights under a state constitution.

Accordingly, the court dismisses J.W.’s constitutional claim.

Where the teacher had the opinion of appealing the board’s decision not to renew her teaching contract, her failure to timely appeal does not render the statutory remedy inadequate to address her claim that defendants violated her right to free speech. Moreover, even though governmental immunity bars the teacher’s state-law claims against the board from being adequate remedies, the teacher’s state-law claims against the principal and superintendent in their individual capacities are adequate state remedies. Furthermore, the teacher may still pursue claims for negligent and intentional infliction of emotional distress against the principal and superintendent in their individual capacities.  If successful, these claims would compensate her for injuries caused by defendants’ alleged retaliation. Accordingly, the teacher has adequate state remedies to compensate for her alleged constitutional injury, and she cannot assert her state constitutional claim.

Finally, the board cannot be held liable for punitive damages. The court dismisses plaintiffs’ claim for punitive damages against the board.

Defendants’ partial motion to dismiss is granted in part and denied in part.

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