Parlier v. Burke County Board of Education et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:25-cv-00247-MR-WCM
TAYLOR PARLIER, )
)
Plaintiff, )
) MEMORANDUM AND
v. ) RECOMMENDATION
)
BURKE COUNTY BOARD OF )
EDUCATION; BURKE COUNTY )
PUBLIC SCHOOLS; )
SUPERINTENDENT MIKE SWAN; )
HR DIRECTOR KEITH RECKER; )
DIRECTOR OF MAINTENANCE )
BOB ACORD; FORMER DIRECTOR OF )
CUSTODIAL OPERATIONS MARK )
WHEELER; and )
PRINCIPAL LEANNA MCKINNEY, )
)
Defendants. )
_______________________________ )
This matter is before the Court on Defendants’ Motion to Dismiss, (the
“Motion to Dismiss,” Doc. 2), which has been referred to the undersigned
pursuant to 28 U.S.C. § 636 for the entry of a recommendation.
I. Procedural Background
On June 20, 2025, Taylor Parlier (“Plaintiff”), appearing
pro se, filed this
matter in the Superior Court of Burke County, North Carolina. Doc. 1-1.
On August 6, 2025, Defendants removed the case. Doc. 1. The same day,
they also filed the Motion to Dismiss and a supporting brief. Docs. 2, 3.
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On August 7, 2025, the undersigned issued a Roseboro order advising
Plaintiff of the Motion to Dismiss and informing Plaintiff that if no response
was submitted by September 10, 2025, the Court may proceed to consider the
Motion to Dismiss without hearing from Plaintiff.
Plaintiff has made no filings in response to the Motion to Dismiss.
II. Plaintiff’s Allegations
Plaintiff appears to allege as follows:
Plaintiff was employed from June 2024 through May 2025 by the Burke
County Public Schools as a custodian at an elementary school. Doc. 1-1 at ¶¶
1, 4.
In March 2025, Plaintiff “reported serious safety concerns, including
after-hours access to the school by unauthorized individuals connected to a
former employee.” Id. at ¶ 5. These reports were given to the Principal, Leanna
McKinney, and the Director of Custodial Operations, Mark Wheeler. Id.
Plaintiff made repeated requests for a transfer “due to health and safety
concerns,” but the requests were ignored. Id. at ¶ 6.
On March 24, 2025, shortly after Plaintiff’s safety concerns had been
“dismissed,” the school was “targeted by a school shooting threat” and a suspect
was arrested. Id. at ¶ 7.
On May 12, 2025, HR Director Keith Recker and “law enforcement”
approached Plaintiff. Plaintiff’s employment was terminated and Plaintiff was
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required to surrender Plaintiff’s badge and keys without prior written notice
or a hearing. Id. at ¶ 8.
Plaintiff was not given any opportunity to defend against the
termination and did not receive official documentation until after “the removal
occurred.” Id. at ¶ 9.
Plaintiff contends that Superintendent Mike Swan directed that
Plaintiff’s grievance materials be submitted to “him” (presumably Swan), in
violation of School Board policy. Id. at ¶ 10.
Prior to the “complaint” submitted on March 13 (presumably meaning
Plaintiff’s report regarding “serious safety concerns”), there was “no
disciplinary documentation” in Plaintiff’s file, though “retaliatory records”
were subsequently included in Plaintiff’s personnel file. Id. at ¶ 11.
Plaintiff asserts claims for retaliation in violation of the North Carolina
Retaliatory Employment Discrimination Act (“REDA”) N.C.G.S. §§95-240,
wrongful termination in violation of North Carolina public policy, and violation
of procedural due process.
III. Discussion
As an initial matter, by failing to respond to the Motion to Dismiss,
Plaintiff may be deemed to have abandoned Plaintiff’s claims. See City of
Brevard v. CDM Smith, Inc., No. 1:20-cv-160-MR-WCM, 2021 WL 1015858, at
*6 (W.D.N.C. Feb. 2, 2021)) (collecting cases holding that when a plaintiff's
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failure to respond to a motion to dismiss argument, courts may assume they
concede the merits of that argument); see also Campbell v. Rite Aid Corp., No.
7:13-cv-02638-BHH, 2014 WL 3868008, at *2 (D.S.C. Aug. 5, 2014) (holding
that, where the plaintiff failed to respond to an argument in the defendant's
motion to dismiss, “the Court can only assume that Plaintiff concedes the
argument”).
However, even where a motion to dismiss goes unchallenged, the court
has an obligation to review the motion to ensure that dismissal is appropriate.
Stevenson v. City of Seat Pleasant, 743 F.3d 411, 416 n.3 (4th Cir. 2014).
Accordingly, the undersigned has considered Plaintiff’s claims and Defendants’
(unrebutted) arguments for their dismissal.
A. Due Process
“To succeed on a procedural due process claim, a plaintiff must satisfy
three elements. First, he must demonstrate that he had a constitutionally
cognizable life, liberty, or property interest.” Sansotta v. Town of Nags Head,
724 F.3d 533, 540 (4th Cir. 2013) (quoting Iota Xi Chapter Of Sigma Chi
Fraternity v. Patterson
, 566 F.3d 138, 145 (4th Cir. 2009). “Second, he must
show that the deprivation of that interest was caused by ‘some form of state
action.’” Id
. (Patterson
, 566 F.3d at 145 (quoting Stone v. Univ. of Md. Med.
Sys. Corp.
, 855 F.2d 167, 172 (4th Cir.1988)). “Third, he must prove ‘that the
procedures employed were constitutionally inadequate.’” Id. (quoting
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Patterson
, 566 F.3d at 145).
Here, Defendants contend that Plaintiff did not have a property interest
in Plaintiff’s continued employment. Specifically, Defendants argue that the
statute cited by Plaintiff – N.C.G.S. §115C-325 – does not apply to Plaintiff’s
former position as a school custodian. Defendants also contend that Plaintiff
does not allege Plaintiff could only be terminated for cause or had an
employment contract.
The undersigned finds these arguments to be persuasive.
“A public employee in North Carolina only has a protected property
interest in continued employment if the employee can show a legitimate claim
to continued employment under a contract, state statute, or local ordinance.”
Hatley v. City of Charlotte, 826 F. Supp. 2d 890, 898 (W.D.N.C. 2011) (citing
Peace v. Employment Sec. Comm'n
, 349 N.C. 315, 321 (1998)).
Here, the only statute cited by Plaintiff that could be construed as
creating such a right is N.C.G.S. § 115C-325 which “sets forth in exhaustive
detail the procedures for employing, demoting, and dismissing public school
teachers and administrators.” James v. Charlotte-Mecklenburg Cty. Bd. of
Educ., 221 N.C. App. 560, 565, disc. review denied, 366 N.C. 409 (2012).
That statute, however, applies only to a “career employee,” which means
“an employee who was awarded career status” with a local school board “as a
teacher prior to August 1, 2013.” N.C.G.S. § 115C-325(a)(1a). The term
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“‘teacher’ means a person who holds at least a current, not provisional or
expired, Class A license or a regular, not provisional or expired, vocational
license issued by the State Board of Education; whose major responsibility is
to teach or directly supervises teaching or who is classified by the State Board
of Education or is paid either as a classroom teacher or instructional support
personnel; and who is employed to fill a full-time, permanent position.”
N.C.G.S. § 115C-325(a)(6).
Plaintiff provides no information or authorities to suggest Plaintiff was
a “career employee” for purposes of Section 115C-325.
Plaintiff also does not provide any information that would support a
conclusion that Plaintiff otherwise had a property interest in continued
employment, such as by virtue of a contract or local ordinance. See e.g., Shuler
v. Town of Waynesville, No. 1:99CV198-C, 1999 WL 33315654, at *2 (W.D.N.C.
Mar. 25, 1999) (considering whether a personnel manual limited the town's
ability to terminate plaintiff’s services such that a property interest arose);
Beckham v. Harris, 756 F.2d 1032, 1037 n. 8 (4th Cir.), cert. denied, 474 U.S.
903 (1985) (disciplinary guidelines in department personnel manual that
provided that an employee could be fired only for violation of specified conduct
was insufficient to establish a property interest in continued employment).
Consequently, and because “North Carolina is an at-will employment
state,” Knight v. Vernon, 214 F.3d 544, 553 (4th Cir. 2000), the undersigned
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must presume that Plaintiff was an at-will employee who did “not have a
constitutionally protected right to continued employment and [did] not have
the benefit of the protections of procedural due process.” Young v. Annarino,
123 F. Supp. 2d 915, 923 (W.D.N.C. 2000) (quoting Wuchte v. McNeil, 130
N.C.App. 738, 740–41 (1998) (citations omitted)); see also Honn v. Town of
Pikeville, No. 5:23-CV-320-BO, 2025 WL 2811521, at *2 (E.D.N.C. Sept. 30,
2025).1
B. State Law Claims
Defendants removed this matter based on Plaintiff’s assertion of a
procedural due process claim, which gave rise to federal question jurisdiction,
and, to this point, the Court has exercised supplemental jurisdiction over
Plaintiff's state law claims. See 28 U.S.C. § 1367(a).
However, when all federal claims over which a court has original subject
matter jurisdiction are dismissed, the court has the discretion to decline to
exercise supplemental jurisdiction over any remaining state law claims
pursuant to 28 U.S.C. § 1367(c)(3). See Arrington v. City of Raleigh, 369
1 Both sides cite to School Board Policy 7940. See Doc. 1-1 at ¶ 9 (alleging that
Plaintiff was not given any opportunity to defend against termination and did not
receive official documentation in violation of "Board Policy 7940 and N.C. Gen. Stat.
§115C-325”) and Doc. 3 at 5 (contending that policy 7940 "states that employees in
positions such as the Plaintiff's former position are at-will and ‘may be terminated on
any basis that is not discriminatory or otherwise unlawful[.]’”). However, neither
Plaintiff nor Defendants have submitted a copy of that policy.
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Fed.Appx. 420, 422 (4th Cir. 2010) (holding that the district court should have
sua sponte declined to exercise supplemental jurisdiction over state law claims
once federal law claims were dismissed); see also Shanaghan v. Cahill, 58 F.3d
106, 110 (4th Cir. 1995) (under § 1367(c), the district courts “enjoy wide
latitude in determining whether or not to retain [supplemental] jurisdiction
over state claims when all federal claims have been extinguished”) (citing
Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)).
“[D]eclining supplemental jurisdiction where all federal claims have
been dismissed is consistent with the general principle that federal jurisdiction
is limited.” Boone v. Duke Energy Carolinas, LLC, No. 3:09-cv-122-RJC-DSC,
2009 WL 3839342, at *2 (W.D.N.C. Nov. 12, 2009). “The Supreme Court has
recognized that where a single federal claim is dismissed early in an action,
the District Court has a ‘powerful reason to choose not to exercise jurisdiction.’”
Id. (quoting Cohill, 484 U.S. at 351).
As set out above, the undersigned finds that Plaintiff has not stated a
federal due process claim. Considering that this matter is in its early stages,
the undersigned will recommend that the Court decline to exercise
supplemental jurisdiction over Plaintiff's state law claims and remand those
claims without prejudice. See Cohill, 484 U.S. at 350 (“When the balance of
these factors indicates that a case properly belongs in state court, as when the
federal-law claims have dropped out of the lawsuit in its early stages and only
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state-law claims remain, the federal court should decline the exercise of
jurisdiction by dismissing the case without prejudice”).
IV. Recommendation
For the reasons set forth herein, the undersigned RESPECTFULLY
RECOMMENDS:
1. That the Motion to Dismiss (Doc. 2) be GRANTED with respect to
Plaintiff’s procedural due process claim, and that Plaintiff’s
procedural due process claim be DISMISSED; and
2. That the Court decline to exercise supplemental jurisdiction over the
remaining state law claims, and that such claims be REMANDED to
the Superior Court of Burke County, North Carolina.
Signed: December 11, 2025
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Time for Objections
The parties are hereby advised that, pursuant to Title 28, United States
Code, Section 636, and Federal Rule of Civil Procedure 72(b)(2), written
objections to the findings of fact, conclusions of law, and recommendation
contained herein must be filed within fourteen (14) days of service of same.
Responses to the objections must be filed within fourteen (14) days of service
of the objections. Failure to file objections to this Memorandum and
Recommendation with the presiding District Judge will preclude the parties
from raising such objections on appeal. See Thomas v. Arn, 474 U.S. 140, 140
(1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984).
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