Former school employee alleges officials defamed her

Where a school principal and the school district’s HR director allegedly accused the plaintiff of embezzlement, her defamation per se claim survived the motion to dismiss.

Background

Pamela Smith is a former employee of Norfolk Public Schools, or NPS. Plaintiff has sued NPS and several individual defendants, asserting claims for: (1) Family and Medical Leave Act, or FMLA, interference; (2) FMLA retaliation; (3) defamation per se; (4) violation of 42 U.S.C. § 1983; (5) wrongful termination and (6) breach of contract. Defendants have filed a motion to dismiss.

Official capacity claims

Defendants argue that plaintiff’s federal claims against the individual defendants in their official capacities “must be dismissed as duplicative of the claims against the School Board.” The court finds that any claims brought against the individual defendants in their official capacities are duplicative of those also alleged against the school board and must be dismissed.

Qualified immunity

Defendants contend that individual defendants Billups, Belton, Felton and Brown are entitled to qualified immunity for the FMLA claims asserted against them in their individual capacities because “[p]ersonal liability of public employees for FMLA claims was not clearly established at the time of the alleged conduct as opposed to the specific right.” The standard, however, is not whether the individual defendants’ liability was “clearly established,” but rather whether their belief that they were not liable was “reasonable.” The court finds it was not.

At this stage in the litigation, it appears that defendants were well-aware of the law governing their conduct. Second, even if awareness is insufficient, this court interprets the FMLA to plainly include individual suits against a public employee.

FMLA claims

Plaintiff accuses the Norfolk school board, along with Belton, Felton and Brown, in their individual capacities, of interfering with plaintiff’s scheduled FMLA leave because she was forced to participate in the audit during her FMLA leave. Defendant argues that “Plaintiff has only alleged de minimis contact during her FMLA leave,” which, in defendants’ view, “has been ruled appropriate and does not constitute FMLA interference.” The court cannot determine, at the motion to dismiss stage, whether the contact here was sufficient to support an interference claim, so it denies the motion to dismiss.

Plaintiff claims that Norfolk retaliated against her for taking FMLA leave. But plaintiff has failed to plead facts plausibly connecting her termination to her protected leave. She was terminated 18 months after her leave ended. Moreover, plaintiff’s own pleadings indicate that the alleged conduct that led to plaintiff’s termination included accusations that plaintiff embezzled school funds that resulted in a loss of approximately $1,567.

Defamation

The court finds that plaintiff has pled sufficient facts that if proven true, state a plausible claim of defamation per se. Specifically, plaintiff alleges that Belton accused plaintiff of embezzlement and mishandling receipts to the teachers and staff of Ghent. Plaintiff alleges that Billups defamed her by “accusing her of embezzlement.” Plaintiff has also pled sufficient facts that, if proven true, could plausibly show that defendants acted with malice and ill-will.

Section 1983

Plaintiff first relies on two sources to demonstrate her property interest in continued employment: (1) her contract with NPS and (2) the NPS termination procedures. According to the evidence presented, plaintiff was never subject to the probationary period and was an at-will employee during the entire 2019-20 school year. And the grievance procedures plaintiff cites, even when viewing them as incorporated into her contract, still do not rebut the at-will presumption.

Plaintiff also asserts claims under § 1983 that defendants violated her Sixth Amendment right to counsel and her Fifth Amendment right against self-incrimination. These claims fail because these rights don’t attach until she faces trial for criminal charges (Fifth Amendment) or until she faces criminal prosecution (Sixth Amendment).

Wrongful termination

Plaintiff alleges that the school board wrongfully terminated her in contravention of Virginia public policy. This claim fails, however, because defendants are exempt entirely from following the grievance procedure prescribed by the Board of Education pursuant to Virginia Code § 22.1-308 and, even if § 22.1-308 applied to the Norfolk school board, and therefore to plaintiff, it would not apply to plaintiff’s dismissal.

Breach of contract

Defendants concede that a grievance procedure policy is incorporated into plaintiff’s contract. Since the school board complied with this grievance procedure, however, it did not breach its contract with plaintiff.

Defendant’s motion to dismiss granted in part, denied in part.

Smith v. School Board for the City of Norfolk Virginia, Case No. 2:21-cv-138, Nov. 5, 2021. EDVA at Norfolk (Jackson). VLW 021-3-517. 50 pp.