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Race bias suit against school board proceeds

Nick Hurston//March 13, 2023

Race bias suit against school board proceeds

Nick Hurston//March 13, 2023

Terminated employee packing up desk

An assistant principal’s hostile workplace, constructive discharge and retaliation claims have survived dismissal in federal court after a county school board ignored the racial discrimination she allegedly experienced in the wake of the board’s implementation of an anti-racism policy.

The assistant principal said she was compelled to resign when her colleagues became increasingly hostile toward her and the board failed to intervene.

U.S. District Judge Norman K. Moon of the Western District of Virginia allowed her Title VII claims against the county school board to proceed.

“Considering the alleged repeated race-based comments, the School Board’s lack of intervention, and Plaintiff’s emotional and mental distress, Plaintiff has alleged a plausible racial hostile work environment claim under Title VII, which will survive the School Board’s motion to dismiss,” Moon wrote.

The opinion is Mais v. Albemarle County School Board (VLW 023-3-070).


Emily Mais was an assistant principal at Agnor-Hurt Elementary School in Albemarle County from 2018 to 2021. In February 2019, the Albemarle County School Board adopted an anti-racism policy and mandated that all staff attend an online orientation presentation.

During Mais’ orientation in November 2020, the board’s assistant superintendent, Dr. Bernard Hairston, said that “staff needed to think about whether they were on the ‘antiracism school bus, or if you need help finding your seat and keeping your seat, or if it’s time for you to just get off the bus.’”

The policy required staff to complete a teacher training series. After the exercise started, Mais told the trainer that some staff members complained that the trainings created a racially hostile environment which “demonized them for being white.” The trainer did not change the structure or the content.

After some parents spoke out against the anti-racism policy, Mais said Hairston told staff that “his ancestors were slaves owned by a wealthy Virginia family” and “he received the parents’ comments as if they were slave owners who had raped his mother and sister, beaten him, and were now telling him not to talk about it.”

The superintendent and senior school board members supported Hairston’s
assertion that implementing the anti-racism policy was “non-negotiable.”

Apologies made

Mais suggested a way to analyze racial disparity data during her final anti-racism training session in June 2021. She inadvertently used the word “colored” instead of people of color and immediately apologized.

Per the complaint, Sheila Avery, a teacher’s aide, ignored Mais’ apology and accused her “of speaking like old racists who told people of color to go to the back of the bus.” Emily Holmstrum, the school guidance counselor, later asked Mais if she would like to “unpack” her misstatement.

Mais told the school board’s equity specialist she and other staff members felt mistreated; the school board ignored the complaints. Following a complaint about Mais’ use of the word “colored,” Hairston asked to meet with Mais and Avery.

Before the meeting, Mais heard from several employees that “Avery and her friends were openly slandering [] Mais at work, openly cursing about her and calling her vulgar names at work, telling other employees she was a racist and that she intentionally demeaned black people, and trying to turn other employees against her.”

Mais’ principal ignored her complaint that Avery was causing her emotional distress, distracting her from her job and making it impossible for her to manage employees.

During a meeting with Hairston, Avery and other administrators, Mais said she apologized but Avery continued to chastise her. Hairston suggested that Mais apologize to the entire staff and that everyone retake the anti-racism trainings.

Mais later told her principal she was uncomfortable with how she had been treated and that she needed to seek medical treatment to address the physical symptoms from her emotional distress, which her principal encouraged.

The suit

Citing her physical and mental health, as well as deteriorating work conditions, Mais resigned in August 2021. She reluctantly agreed to apologize to the staff again in order to remain on good terms for a job reference.

Her draft apology described how difficult the situation had been for her. Avery and Holstrum said that Mais’ apology was inappropriate and defensive.

Avery refused to accept Mais’ public apology and allegedly told staff “they could either be on her side or Mais’ side and there was no in-between.”

Mais eventually filed a 10-count complaint in the Western District of Virginia. She claimed the school board violated her free speech rights under the Virginia Constitution, wrongfully discharged her in violation of public policy and committed several violations of the Virginia Human Rights Act, or VHRA, as well as Title VII of the Civil Rights Act.

The school board moved to dismiss Mais’ complaint.

Title VII

“Harassment is severe or pervasive if the workplace is ‘pervaded with discriminatory conduct aimed to humiliate, ridicule, or intimidate,’” Moon wrote. “A court’s objective analysis of whether a workplace is hostile looks ‘at all the circumstances which 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.”

Here, Mais has alleged plenty of proof to allow a jury to decide if the claimed harassment was “severe or pervasive.”

“She alleges that Avery ‘verbally attacked’ her for using the term ‘colored’ during a training session and criticized her in a meeting with Hairston,” the judge explained. “She claims no action was taken by the School Board after she complained about Avery’s conduct. Plaintiff also claims that several employees told Plaintiff that Avery and her friends were calling her names at work ….”

Still, after she complained to her principal and told him it was “preventing her from focusing on her job,” no action was taken.

“She spoke to an assistant superintendent and HR employees about ‘the racially charged mistreatment she had experienced’ but the School Board took no action,” Moon wrote. “And she claims that she told her principal that she was experiencing severe mental and emotional distress from the hostile work environment.”

Moon also found Mais credibly alleged a constructive discharge claim.

“The accumulation of these allegations sufficiently supports that a reasonable employee in Plaintiff’s position could have felt compelled to resign,” he pointed out.

Finally, the judge rejected the school board’s challenge to the causation element of Mais’ retaliation claims.

“Considering the short temporal proximity between her alleged protected activity and the alleged adverse employment actions, Plaintiff has alleged enough facts to support a plausible inference that the school board retaliated against her because of her protected activity,” Moon wrote.

‘Ongoing split’

Hal Frampton, senior counsel for the Center for Conscience Initiatives at the Alliance Defending Freedom, began representing Mais at the administrative phase of her claims. He told Virginia Lawyers Weekly his client and legal team were heartened that the “core of their case survived.”

“The primary issue in this case has always been the racially hostile work environment and the retaliation that she suffered for complaining about the racial hostility that this ‘Courageous Conversations About Race’ training sparked,” he said.

Frampton added that there is “an ongoing split of authority” in some lower courts about whether — and to what extent — free speech rights in the Virginia Constitution are self-executing.

“Similarly, there’s an ongoing question as to whether state entities are subject to the VHRA, which is now a Title VII analog after the Virginia Values Act was passed two years ago,” he said. “We see no substantive difference between the VHR and Title VII, but it’s an open question and we think the VHR should apply to state entities like Title VII,” he asserted.

Attorneys for the Albemarle County School Board did not respond to a request for comment.

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