United States District Court, W.D. Virginia, Harrisonburg Division
Michael F. Urbanski Chief United States District Judge.
case was referred to the Honorable Joel C. Hoppe, United
States Magistrate Judge, pursuant to 28 U.S.C. §
636(b)(1)(B), for a recommended disposition of
defendants' motion to dismiss. ECF No. 8. The Magistrate
Judge filed a report and recommendation ("R&R")
on June 9, 2017, recommending that plaintiff Gabriel Khalil
Hussein Deen's complaint be dismissed in its entirety.
ECF No. 32. Deen filed a response objecting to the R&R,
ECF No. 34, and defendants filed a reply to Deen's
response, ECF No. 35.
complaint asserts various claims of discrimination that
allegedly occurred during his employment as a substitute
teacher in the Shenandoah County school system. Deen claims
that the Shenandoah County School Board
("Shenandoah") and Dr. Mark A. Johnston,
Superintendent of Shenandoah County Public Schools,
discriminated against him on the basis of race, national
origin, religion, gender, and age throughout his employment
as a substitute teacher. Deen asserts claims under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a),
the Age Discrimination in Employment Act ('ADEA"),
29 U.S.C §§ 621-634, and the Due Process Clause of
the Fourteenth Amendment to the United States Constitution.
objects to the Magistrate Judge's recommendations
regarding his Title VII disparate treatment, hostile work
environment, and retaliation claims against Shenandoah. He
makes no objections to the Magistrate Judge's conclusions
concerning the ADEA and Due Process claims. Nor does Deen
object to the Magistrate Judge's recommendation that all
claims against Johnston be dismissed. (Indeed, Tide VII and
the ADEA do not provide for individual liability.) The court
has carefully reviewed the portions of the R&R to which
Deen raises no objection and concurs with the Magistrate
Judge's recommendations. For the reasons set forth below,
the court will overrule Deen's objections regarding his
Title VII claims, adopt the R&R in its entirety, and
dismiss Deen's complaint.
background to this case is set forth in the R&R and does
not require lengthy recitation here. In short, Deen believes
that a handful of incidents during his employment as a
substitute teacher amount to impermissible discrimination or
retaliation. For example, Deen alleges that a school employee
subjected him to increased security screening when he
attempted to enter Ashby Lee Elementary School ("Ashby
Lee") on one or two occasions.According to Deen, white
female substitute teachers were not required to undergo those
security measures and the added oversight he endured was the
result of his race and Muslim-sounding name. Furthermore,
Deen alleges that he labored in a hostile work environment as
a result of students lodging racial epithets and
discriminatory comments at him. Deen claims that defendants
are liable for the harm caused by those comments because he
reported them to school administrators who did nothing to
punish the offending students' conduct or prevent it from
happening in the future. And lastly, Deen claims that he was
no longer asked to work as a substitute teacher because of
negative feedback he provided to administrators regarding
various aspects of other teachers' performance. This
feedback, Deen asserts, amounted to protected activity as
required to prove his Title VII retaliation claim.
court will address Deen's objections to the R&R as
they relate to each of his claims under Title VII.
Title VII Disparate Treatment
prove a prima facie case for Title VII disparate treatment,
Deen must show: "(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.
Maryland Court of Appeals. 626 F.3d 187, 190 (4th Cir.
2010), aff d sub nom. Coleman v. Court of Appeals of
Maryland. 566 U.S. 30, 132 S.Ct. 1327, 182 L.Ed.2d 296
(2012). Although the prima facie case "is an evidentiary
standard, not a pleading requirement, " Swierkiewicz
v. Sorema N. A., 534 U.S. 506, 510 (2002), Deen must
plead sufficient facts to "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
Ashcroft v. Iqbal. 556 U.S. 662, 678 (2009)). In
other words, Deen must plead "enough facts to state a
claim to relief that is plausible on its face." Bell
Atl. Corp. v. Twombly. 550 U.S. 544, 570 (2007).
has failed to state a plausible disparate treatment claim
under Title VII because he has not pled facts indicating that
his job performance was satisfactory and he has not alleged
that Shenandoah treated similarly situated employees outside
his protected classes differently. In his filings in
opposition to the motion to dismiss, Deen attached various
documents including lesson plans from other teachers that he
considers inadequate, see ECF Nos. 21-3, 21-6, 21-10, 21-12,
a feedback form he created to allow teachers to
"make/implement changes/improvement, " ECF No.
21-13, and five letters between Deen and Johnston, ECF Nos.
21-1, 21-9, 21-15, 21-16, 21-18. The letters from Johnston to
Deen indicate that Deen cannot plausibly establish the second
prong of a disparate treatment claim, i.e., satisfactory job
March 13, 2014, Johnston informed Deen of "concerns from
two administrators regarding [Deen's] performance while
substituting in their schools. The specific concerns were
failure to follow lesson plans, poor classroom management,
and lack of professionalism in communicating with students
and staff." ECF No. 21-1, at 2. Johnston wrote that
"Ashby Lee Elementary School and Sandy Hook Elementary
School have requested that you be excluded from substituting
in their buildings. Any further concerns from other schools
will result in you being removed from the substitute teacher
pool in Shenandoah County Public Schools."
Id. Over a year later, Johnston again wrote
Deen: "As has been discussed with you, ... there have
been numerous documented complaints regarding your abilities
to effectively serve as a substitute teacher." ECF No.
21-18, at 2 (May 27, 2015). Deen has not taught as a
substitute teacher in Shenandoah since May 2015, which he
cites as an adverse employment action.
light of the letters expressing consistent complaints about
Deen's "abilities to effectively serve as a
substitute teacher, " ECF No. 21-18, at 2, Deen has not
pled facts that could plausibly establish his satisfactory
job performance. Moreover, Deen has not pled facts indicating
that he was treated differently than "similarly situated
employees outside the protected class."
Coleman, 626 F.3d at 190. Nowhere has Deen
identified the manner in which Shenandoah treated other
substitute teachers who struggled with the responsibilities
of the job. The Magistrate Judge correctly determined that
Deen has failed to plead facts that would allow the court to
draw the inference that Shenandoah is liable for disparate
treatment under Title VII. See Woods. 855 F.3d at
objections to the foregoing conclusions must be overruled.
Deen first objects to the Magistrate Judge's conclusion
as to satisfactory job performance because his educational
qualifications far exceed the minimum required to work as a
substitute teacher. Indeed, Deen has a bachelor's and a
master's degree and Shenandoah requires only a high
school degree or its equivalent in order to serve as a
substitute teacher. See ECF Nos. 21-19, at 3-4,
21-7. However, the Magistrate Judge properly rejected
Deen's arguments regarding his qualifications. The second
element of a disparate treatment claim requires satisfactory
job performance, not satisfactory educational qualifications.
See Warch v. Ohio Cas. Ins. Co.. 435 F.3d 510,
514-15 (4th Cir. 2006) (Disparate treatment claims require
plaintiff "to demonstrate that he was
'qualified' in the sense that he was doing his job
well enough to rule out the possibility that he was fired for
inadequate job ...