United States District Court, E.D. Virginia, Alexandria Division
M. Brinkema United States District Judge
the Court is the defendants' Motion to Dismiss, to which
plaintiff has filed an Opposition. For the reasons stated in
open court,  and as further developed in this
Memorandum Opinion, defendants' Motion has been granted,
and this civil action has been dismissed.
Kathleen Munive ("plaintiff or "Munive")
alleges in a one-count Complaint that defendants Fairfax
County School Board ("FCSB"), Frances Ivey
("Ivey"), Patricia Granada ("Granada"),
Sandra Edwards ("Edwards"), Kevil Sills
("Sills"), R. Chase Ramey ("Ramey"), and
Steven Lockard ("Lockard") (collectively,
"defendants") violated 42 U.S.C. § 1983 by
retaliating against her for exercising her First Amendment
right to file an anti-retaliation lawsuit in 2016 against
defendant FCSB and four other school officials.
Complaint alleges that plaintiff is a long-time employee of
the Fairfax County Public Schools ("FCPS") system
and is currently an English Speakers of Other Languages
("ESOL") teacher at the Mountain View Alternative
High School. Compl. [Dkt. No. 1] ¶ 7. She first became
aware of the FCPS' "retaliatory culture" in
November 2005, when she complained to her supervisor about a
principal and was told: "Don't you know this is HR.
We can do anything, except change what a principal wants or
does. Be careful." Id. ¶ 40. In March
2006, plaintiff was again told by her supervisor "[i]f
the principal wants her gone, it will happen. If she fights
it, HR will make her life miserable." Id.
2007, plaintiff filed an EEOC complaint against the FCSB
alleging that the placement of a reprimand letter in her
personnel file constituted race and gender discrimination.
Id. ¶ 15. Although she has made annual requests
for the reprimand letter to be removed from her file, the
requests have been rejected. Id. The Complaint
alleges that in 2013 Phyllis Pajardo ("Pajardo"),
then-Assistant Superintendent of HR,  told her that her requests
were being rejected so that she would be "taught a
lesson" not to file any future EEOC complaints.
Id. Based on that statement, plaintiff filed an EEOC
complaint alleging that the refusal to remove the reprimand
from her personnel file constituted retaliation for her prior
EEOC complaint. Id. ¶ 16. In April 2015,
plaintiff received a determination from the EEOC that the
FCSB had retaliated against her, and in May 2016 she received
a Right to Sue letter from the EEOC. Id. In August
2016, plaintiff filed a lawsuit in this court alleging
retaliation by the FCSB, Debra Reeder, Kevin North, Jack
Dale, and Phyllis Pajardo in violation of Title VII and
§ 1983. Id. ¶¶ 17-18; 2016 Compl.
[Dkt. No. 5-A] 1. Defendants' Motion to Dismiss was
granted after the Court found that refusal to remove the
reprimand letter did not constitute the materially adverse
action element required of a Title VII retaliation claim and
that the actions of neither the FCSB nor the individual
defendants happened within § 1983's two-year statute
of limitations. Compl. ¶ 19; Case No. 1:16-cv-1075-CMH,
Mem. Op. (E.D.Va. Feb. 21, 2017) [Dkt. No. 19] 11-18. On
appeal, the Fourth Circuit reversed and remanded only
plaintiffs Title VII retaliation claim, finding that the
denial of plaintiff s "request to remove the reprimand
letter constituted a discrete act of retaliation." See
No. 17-1692, Op. (4th Cir. Nov. 7, 2017) [Dkt. No. 32]
instant Complaint, Munive alleges that defendants retaliated
against her for filing the 2016 lawsuit, which she alleges
constituted protected First Amendment activity, specifically
protected speech. Compl. ¶ 21. Plaintiff alleges that
after the EEOC Right to Sue letter was issued in May 2016,
she had a meeting with defendants Ramey, Assistant
Superintendent of Human Resources, and Sills, Director of the
Office of Equity and Employee Relations Office, to discuss
the EEOC letter. Id. ¶ 22. At this meeting,
Sills allegedly "raised his voice and berated her for
being rude, combative, and dishonest" and Ramey
allegedly "made comments such as, 'You want to be
paid for doing nothing?'" Id. Other
defendants allegedly "commenced a whisper campaign"
against plaintiff. Specifically, defendants Granada,
then-Principal of Eagle View Elementary School ("Eagle
View"), and Edwards, Assistant Principal of Eagle View,
allegedly "began spreading rumors" that plaintiff
had "vindictively" filed a complaint against Eagle
View, although plaintiff claims she "played no
role" in that complaint Id. ¶¶ 22-24.
The Complaint also alleges that numerous colleagues, not
named as defendants, "threatened her" and
"maligned her as a 'snitch.'" Id.
January 24, 2017, plaintiff complained about this conduct to
defendant Ivey, then-Assistant Principal of Region 5, who
allegedly told plaintiff that she would contact HR to request
an investigation into plaintiffs claim, but no investigation
was initiated. Id. ¶¶ 26-27. On February
16, 2017, plaintiff filed four internal workplace harassment
complaints with defendant Lockard, Assistant Superintendent
or the Acting Interim Superintendent of FCPS. Id.
¶ 28. Although plaintiff received an e-mail from Lockard
stating that he was in the process of reviewing her concerns,
she has not heard back. Id. ¶¶
2018, plaintiff applied for a promotion but was passed over
in favor of a man with only five years of teaching experience
(compared to plaintiffs 33 years), one Masters' degree
(compared to plaintiffs two), and no PhD (plaintiff has a
PhD). Id. ¶¶ 35-36. The position she
sought was as an "Educational Specialist, ESOL" and
"would have entailed greater responsibility and greater
pay." Id. ¶ 35. She alleges that she was
passed over as punishment for filing her 2016 lawsuit.
Id. ¶ 37. Plaintiff seeks declaratory judgment,
injunctive relief, compensatory and punitive damages, and
attorneys' fees and costs.
Standard of Review
Federal Rule of Civil Procedure 12(b)(6) provides that a
complaint should be dismissed if it fails to state a claim
upon which relief can be granted. "To survive a motion
to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to 'state a claim to relief
that is plausible on its face.'" Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In
determining whether a complaint states a claim on which
relief may be granted, the court must "assume that the
facts alleged in the complaint are true and draw all
reasonable inferences in the plaintiffs favor,"
Burbach Broad. Co. of Del, v. Elkins Radio Corp.,
278 F.3d 401, 406 (4th Cir. 2002), but only to the extent
that those allegations pertain to facts rather than to legal
conclusions, Iqbal. 556 U.S. at 678. Plausibility
requires "more than a sheer possibility that a defendant
has acted unlawfully"; instead, the plaintiff must plead
"factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Id.