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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