IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION CASE NO: 5:07-CV-231

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1 PDF Documents Complete Click Here & Upgrade Expanded Features Unlimited Pages IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION CASE NO: 5:07-CV-231 PAMELA L. HENSLEY, ) ) Plaintiff, ) ) v. ) MOTION TO DISMISS ) (F.R. Civ.P. 12.(b)(1) and 12(b)(6) JOHNSTON COUNTY BOARD OF ) EDUCATION, and, ) ANTHONY L. PARKER, in his capacity ) as superintendent of Johnston County ) Schools and in his individual capacity, ) ) Defendants. ) Defendants Johnston County Board of Education and Anthony L. Parker, by and through their attorneys, move the Court pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure to dismiss all claims in this action against them on the grounds of lack of jurisdiction over the subject matter, failure to state a claim upon which relief may be granted, and qualified immunity. In support of their Motion to Dismiss, defendants rely upon plaintiff s Complaint filed May 24, 2007, the Exhibits attached to plaintiff s Complaint, letters from Principal Ray Stott and Superintendent Anthony Parker, which are attached hereto as Exhibits 1 and 2, respectively, and are central to plaintiff s complaint, and plaintiff s charge of discrimination, Charge No , which is attached hereto as Exhibit 3. In further support of their motion, defendants respectfully show the following: Case 5:07-cv F Document 6 Filed 07/30/07 Page 1 of 4

2 PDF Documents Complete Click Here & Upgrade Expanded Features Unlimited Pages 1. Plaintiff s Complaint fails to state a claim against either of the defendants and should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. 2. Plaintiff s First Amendment and state constitutional free speech claims should be dismissed because plaintiff s speech was not a substantial factor in her job transfer, nor did it address issues of public concern. 3. Plaintiff s claim for disparate treatment under the Equal Protection Clause of the Fourteenth Amendment should be dismissed because the facts alleged in the complaint make clear the rational basis for defendants conduct and as a public employee defendant is not entitled to judicial review of personnel decisions under a class of one theory. 4. Plaintiff s claim for violation of her rights of conscience under the North Carolina Constitution should be dismissed for failure to state a claim. 5. Plaintiff s claims for violation of her state constitutional rights to the fruits of her labor and due process should be dismissed because plaintiff does not have a protected property interest in a particular job. 6. To the extent plaintiff states any legitimate state constitutional claims, those claims should be dismissed because state law provides an adequate remedy. 7. Plaintiff s claim of discrimination based on religion should be dismissed for failure to state a claim and lack of subject matter jurisdiction because plaintiff fails to allege facts to support each element of the claim, fails to identify any adverse employment action tied to her religion and because her complaint dissembles from the EEOC charge upon which it is based. 8. Plaintiff s claim under the Americans With Disabilities Act should be dismissed because plaintiff fails to allege facts sufficient to support the elements of such a claim and fails to state any adverse employment action tied to a disability. Case 5:07-cv F Document 6 Filed 07/30/07 Page 2 of 4

3 PDF Documents Complete 9. Plaintiff s claim for punitive damages should be dismissed as she has alleged no claim for which such damages are recoverable. Plaintiff s claims for punitive damages under Title VII and the Americans With Disabilities Act should be dismissed because such damages are not recoverable in this action. 10. Plaintiff s claims against defendant Anthony Parker in his individual capacity should be dismissed because they are barred by qualified immunity. Pursuant to Local Rule 7.1(d), a Memorandum of Law in support of this motion is being submitted contemporaneously with the motion. Based on the foregoing, and for the reasons stated in the defendants memorandum filed herewith, defendants respectfully request that this Court dismiss with prejudice all claims in this action. Click Here & Upgrade Expanded Features Unlimited Pages Respectfully submitted this 30th day of July, THARRINGTON SMITH, L.L.P. /s/ Daniel W. Clark Tharrington Smith, L.L.P. 209 Fayetteville Street Post Office Box 1151 Raleigh, North Carolina Telephone: (919) Facsimile: (919) dclark@tharringtonsmith.com State Bar No /s/ Christine T. Scheef Tharrington Smith, L.L.P. 209 Fayetteville Street Mall Post Office Box 1151 Raleigh, North Carolina Telephone: (919) Fax: (919) csheef@tharringtonsmith.com State Bar No ATTORNEYS FOR DEFENDANTS Case 5:07-cv F Document 6 Filed 07/30/07 Page 3 of 4

4 PDF Documents Complete Click Here & Upgrade Expanded Features Unlimited Pages CERTIFICATE OF SERVICE I hereby certify that on July 30, 2007 I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following: Mary-Ann Leon THE LEON LAW FIRM, P.C. Attorney For Plaintiff Pamela L. Hensley Post Office Box Greenville, North Carolina maleon@leonlaw.com Respectfully submitted, /s/ Daniel W. Clark Tharrington Smith, L.L.P. 209 Fayetteville Street Post Office Box 1151 Raleigh, North Carolina Telephone: (919) Facsimile: (919) dclark@tharringtonsmith.com State Bar No /s/ Christine T. Scheef Tharrington Smith, L.L.P. 209 Fayetteville Street Mall Post Office Box 1151 Raleigh, North Carolina Telephone: (919) Fax: (919) csheef@tharringtonsmith.com State Bar No ATTORNEYS FOR DEFENDANTS Case 5:07-cv F Document 6 Filed 07/30/07 Page 4 of 4

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