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Southard v. Wicomico County Board of Education

United States District Court, D. Maryland

January 13, 2015


Page 553

For Melody Southard, Plaintiff: Michael Patrick Coyle, Law Offices of Chaifetz and Coyle PC, Columbia, MD.

For Wicomico Board of Education, Defendant: Eric Charles Brousaides, LEAD ATTORNEY, Carney Kelehan Bresler Bennett and Scherr LLP, Columbia, MD.

Page 554


Catherine C. Blake, United States District Judge.

Melody Southard occupied two roles at Pemberton Middle School: she served as a teacher, having been employed by the Wicomico Board of Education (" the Board" ) since 2008, and she was the parent of a disabled student enrolled at Pemberton. She alleges that the Board reprimanded her, transferred her to a different school, and took a series of other adverse employment actions against her in retaliation for claiming her and her son's entitlements under the Americans with Disabilities Act (" ADA" ), 42 U.S.C. § § 12101-12213, and the Rehabilitation Act, 29 U.S.C. § 790-794f. The Board moved to dismiss those allegations under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), arguing that Southard failed to exhaust her administrative remedies under both the Individuals with Disabilities Education Act (" IDEA" ), 20 U.S.C. § § 1400-1482, and the ADA. This court previously granted that motion, after Southard apparently failed to oppose it. She subsequently moved for reconsideration. For the reasons explained below, her motion for reconsideration will be granted and this court's previous order vacated. As to the Board's motion to dismiss, it will be granted as to Southard's ADA claims and granted in part as to Southard's Rehabilitation Act claims.


Southard alleges the following facts: As noted, the Board has employed Southard as a teacher since 2008. (Compl. ¶ 3, ECF No. 1.) Her son had always attended the school at which Southard worked. (Compl. ¶ 5.) That child was the subject of what Southard's complaint describes as an " IEP," ( see, e.g., Compl. ¶ ¶ 9, 23-24), presumably in reference to the " individualized education program" that the IDEA and its implementing statute in Maryland require schools to formulate for covered students, see, e.g., 20 U.S.C. § 1414(d). In January 2011, Pemberton's recently appointed principal determined that the school would no longer administer the medically recommended, gluten-free diet included in the child's IEP. (Compl. ¶ 9; see also Compl. 7.) Southard objected and, in the months that followed, pressed school officials--via letter, email, and in-person meetings--to document and evaluate her son's needs. (Compl. ¶ ¶ 11-21, 25-29, 32-37.)

Southard alleges that Pemberton's principal initiated a campaign of harassment against her, belittling her ignorance about " the special education process" in front of her peers and allowing the father of her child to harass her and other members of the school's staff at their workplace. (Compl. ¶ 60; see also Compl. ¶ ¶ 8, 22-23.) In June 2011, she received notice of a meeting with Human Resources to discuss matters concerning special education. (Compl. ¶ ¶ 38-39.) At that meeting, which Southard attended in the company of her union representative, she was warned of " borderline insubordinat[ion]" in failing to accept the Pemberton principal's position with respect to the proper treatment of her son. (Compl. ¶ 41.) Two days later, Southard received a letter reprimanding her for that conduct. (Compl. ¶ 48.) She was also transferred without cause to a different school. (Compl. ¶ 48.) After the reprimand and transfer, Southard continued to seek information related to the school's capacity to accommodate her son's needs. (Compl. ¶ 50-54.) And she grieved her reprimand, which a Board employee removed from her personnel file, simultaneously warning Southard that continued discussion with her son's IEP team could result in further discipline. (Compl. ¶ ¶ 57-58.)

Page 555

Following Southard's transfer, the alleged retaliation continued. At her new school, Southard claims, among other things, that she received critical " observation evaluations" and " inaccurate and degrading evaluations." (Compl. ¶ 61.) She was subsequently transferred to yet another school, where she was " subjected to constant verbal and written reprimands addressing a variety of complaints from allegedly insufficient lesson plans to having difficulty staying awake during a meeting to how the classroom is organized," (Compl. ¶ 62), as well as unusually close supervision of her classroom performance and attendance. (Compl. ¶ ¶ 69-76.) At least during the period she worked at this third school, her advocacy on behalf of her son continued. (Compl. ¶ 64-67.) Since November 2013, Southard has been on FMLA leave from her teaching position at the school. (Compl. ¶ 78.)

At some time not specified in the complaint, Southard removed her child from the Board's schools. ( See Compl. ¶ 88.) The Board allegedly interfered with the evaluation of that child's needs at his new school. (Compl. ¶ 88.) That interference included: " (1) [The Board's Supervisor of Special Education] interfered with the IEP process at [the child's] new school district; (2) [that supervisor] participated in causing an investigation to be launched regarding [Southard's] residency; (3) using [the child's father] as [the Board's] pawn throughout [Southard's] filed due process complaint to avoid being held accountable for [the Board's] actions regarding [the child's] education and in return offering to help [the father's] custody attorney in his dispute with [Southard]; (4) refusing to grant [Southard] access to portion of [the child's] education record." (Compl. ¶ 88.) Other than that single, elliptical reference to a " due process complaint," Southard's pleading contains no reference to any proceeding held before any administrative body regarding her son's education.

Southard subsequently filed this complaint and the Board, in turn, moved to dismiss it for failure to exhaust remedies under the IDEA and ADA. Southard did not oppose that motion in a timely manner and this court granted it without the benefit of Southard's briefing, highlighting Southard's failure to file any response " despite being given additional time to do so." (Order, ECF No. 13.) The same day that order issued, Southard filed a motion for reconsideration along with a memorandum in opposition to the Board's motion to dismiss, explaining that the Board's counsel had previously consented to a second extension of time for that filing, but counsel had failed to notify the court. (Mem. Reconsider, ECF No. 14.) This court formally accepted and considered Southard's opposition, explaining that it would grant the motion to reconsider if it found Southard's position meritorious. (Order, ECF No. 16.) In due course, the Board filed a reply to Southard's opposition.


I. Standard of Review

A motion brought under Federal Rule of Civil Procedure 12(b)(1) " addresses whether [the plaintiff] has a right to be in the district court at all and whether the court has the power to hear and dispose of his claim, and a 12(b)(6) motion addresses whether [the plaintiff] has stated a cognizable claim, a challenge to the sufficiency of the complaint." Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 452 (4th Cir. 2012).

When ruling on a motion under Rule 12(b)(6), the court must " accept the well-pled allegations of the complaint as true," and " construe the facts and reasonable inferences derived therefrom in the light

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most favorable to the plaintiff." Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). " Even though the requirements for pleading a proper complaint are substantially aimed at assuring that the defendant be given adequate notice of the nature of a claim being made against him, they also provide criteria for defining issues for trial and for early disposition of inappropriate complaints." Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). " The mere recital of elements of a cause of action, supported only by conclusory statements, is not sufficient to survive a motion made pursuant to Rule 12(b)(6)." Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). To survive a motion to dismiss, the factual allegations of a complaint " must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations omitted). " [A] plaintiff need not 'forecast' evidence sufficient to prove the elements of the claim. However, the complaint must allege sufficient facts to establish those elements . . . . [and] advance the plaintiff's claim 'across the line from conceivable to plausible.'" Walters, 684 F.3d at 439 (internal citations omitted) (quoting Twombly, 550 U.S. at 570).

Under Rule 12(b)(1), " [a] defendant may contest subject matter jurisdiction in one of two ways: by attacking the veracity of the allegations contained in the complaint or by contending that, even assuming that the allegations are true, the complaint fails to set forth facts upon which jurisdiction is proper." Durden v. United States, 736 F.3d 296, 300 (4th Cir. 2013). Here, the Board asserts the second of these two objections, arguing that, on its face, Southard's complaint offers no grounds for federal jurisdiction for want of any allegation of administrative exhaustion. Accordingly, Southard must be " afforded the same procedural protection as [s]he would receive under a Rule 12(b)(6) consideration," meaning that " the facts in the complaint are taken as true, and the motion must be denied if the ...

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