West Virginia Record

Monday, October 21, 2019

Board seeks to have lawsuit filed by former teacher dismissed


By Kyla Asbury | Aug 21, 2019

HUNTINGTON — The Cabell County Board of Education filed a motion to dismiss in a lawsuit filed against it by a former teacher who was fired after making racially charged tweets.

The board filed the motion to dismiss pursuant to Rule 12(b)(6) and Rule 12(b)(5) of the Federal Rules of Civil Procedure because, it said, the plaintiff's claims are barred by the statute of limitations, her service of the complaint was insufficient, sovereign immunity bars her claims, her First Amendment claims fail as a matter of law, the board did not have a policy to ask employees to delete social media accounts and the board's policy's did not violate the First Amendment.

"The Plaintiff’s tweets and alleged desire to speak to the press does not outweigh CCBOE’s interest in maintaining a safe and healthy environment for their students," the motion states. "Thus, the Plaintiff’s Amended Complaint must be dismissed with prejudice, as she fails to state a claim upon which relief may be granted."

CCBOE and former Cabell County superintendent Todd Alexander were both named in the lawsuit filed by Mary Durstein, who was a world history teacher at Huntington High School until her termination in 2017.

Durstein was summoned to the principal's office Jan. 9, 2017, where Alexander showed her several of the posts she'd made on Twitter over the last 18 months and told her she needed to shut down her Twitter account immediately, according to a complaint filed in U.S. District Court for the Southern District of West Virginia.

After Durstein deactivated her Twitter account, Alexander told her she was not allowed to speak to the media and put her on administrative leave with pay, according to the suit.

Durstein said some of the remarks about her attributed by news reports to the superintendent and to the director of communications were harsh enough that any reasonable person in her circumstances would feel compelled to publicly respond to protect reputation and esteem.

But Durstein, a former journalist, complied with Alexander's demand and did not speak to any news organizations about the matter, according to the suit.

On Jan. 24, 2017, Durstein received a letter that her suspension was continuing without pay, according to the suit. Durstein's employment was officially terminated on March 6, 2017, during a board meeting. Durstein appealed the termination to the West Virginia Education and State Grievance Board, but the board upheld her termination.

The defendants violated Durstein's right to free speech, according to the suit.

Durstein had been on Twitter since 2008 and had accumulated between 20 and 30 followers who shared her same views, according to the suit. Durstein claimed she posted many tweets and re-tweets involving politics. She claimed all of her tweets were done on her own time and were done on electronics that she personally owned.

Her tweets included a re-tweet of Ann Coulter's in which Coulter posted a photo of Muslim women with the words, "deport them," and one where Durstein called Muslim people "the enemy."

Durstein claimed the school board had a history of making teachers delete their personal social media accounts for expressing views that were not the same as theirs.

The board argued that it did not ask each of its employees to delete their Twitter accounts, nor was there any written policy confirming the same and that the facts alleged by the plaintiff are random and isolated.

"One or two instances of asking an employee to delete a social media account does not amount to a custom or policy," the board stated in the motion. "Further, Defendant Alexander was not the final policymaker for CCBOE." 

Durstein is seeking compensatory and punitive damages. She is represented by Michael S. Bailey of Bailey Legal Services and David Marburger of Marburger Law.

The defendant is represented by Eric D. Salyers, Perry W. Oxley and David E. Rich of Oxley Rich Sammons

U.S. District Court for the Southern District of West Virginia case No. 3:19-cv-00029

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