The U.S. District Court for the Western District of Virginia heard arguments on December 15 in the case of Emily Mais v. Albemarle County School Board, originally filed in April of this year. Mais is a former assistant principal at Agnor-Hurt Elementary School in Albemarle County and has taught for 17 years both here and elsewhere. She claims that she experienced severe and pervasive racial harassment at the hands of Agnor-Hurt staff during and after a required anti-racism teacher training session at the school, and the harassment ultimately compelled her to resign from her job to preserve her mental health.
In the complaint, Mais contends that over the course of a required “Courageous Conversations about Race” teacher training in 2021, she became disturbed by what she felt were racially discriminatory training materials, and that she fielded similar concerns from other teachers. During the final session, Mais inadvertently used the phrase “colored people” instead of “people of color,” and immediately and repeatedly apologized to all present. She was then verbally attacked by teacher’s aide Sheila Avery, who called her an “old racist” and said she did not accept the apology.
Following the training incident, Mais claims that she was subjected to months of increasingly hostile and vulgar attacks (such as being openly called a “two-faced white racist b—”) from staff members, as well as physical intimidation, and that multiple requests for help from school and division administrators were ignored. Mais was asked to (and did) apologize again in several other meetings and mediation sessions, culminating in a mandatory meeting of all the school’s teachers, where she was required to read an apology statement that had been significantly abridged by school division staff. After Mais’s statement, Avery was invited to speak and demanded that teachers choose a side—hers or Mais’s. Mais submitted her resignation at the end of August.
Defense Arguments
In the December hearing, attorney Jeremy Capps, representing the Albemarle County School Board, defended a motion to dismiss the complaint on the basis that citizens generally cannot sue any level of government—including school districts or their employees. Capps said that under Virginia’s constitution, the government and its agencies are immune from such claims under a doctrine called “sovereign immunity,” and any waiver of sovereign immunity has to be explicit, and can only be granted by the government.
“There is no mechanism in Virginia law by which the plaintiff could pursue a monetary remedy for violation of the constitution,” said Capps, adding that retaliation is not covered as discrimination by the Virginia Human Rights Commission. “The real issue in this case is whether the plaintiff has alleged enough for a ‘hostile work environment’ under Title Seven.” Mais claims that the harassment made it impossible for her to continue working at the school, so the School Board was willfully negligent and “constructively discharged” her, in violation of her constitutional rights.
In arguing against the constructive discharge claim, Capps said that Mais was “only” called a “two-faced white racist b—” twice after the training session, according to the complaint. “She didn’t like the fact that she was asked to apologize, but that doesn’t make a hostile work environment,” he said. Neither side disputes that Mais immediately apologized for her misstatement, and reiterated her apology several times.
Capps also acknowledged that now-retired Bernard Hairston, who was at the time Assistant Superintendent for School Community Empower-ment, described the anti-racism policy to Mais in a mediation meeting where Avery was present, and in that context he said, “You’re either on the bus or you’re not. You are either a racist or an anti-racist.” Capps also noted that then-Director of Educator Quality Daphne Keiser said it was inappropriate for Hairston to have conducted a mediation meeting without any human resources persons present.
However, none of this was enough to create a situation that could amount to constructive discharge, said Capps. “She cannot use her own objections to the policy, or her own offensive statements that cause conflict within the workplace between coworkers, as the basis for a hostile work environment claim,” he said. “It’s just not enough.”
Judge Norman K. Moon followed up by asking what would be enough. “I mean, when are you going to let up?” said Moon. “At what point will [the punishment] be enough? What amount is the [appropriate] public punishment of someone for wrongdoing?”
“But that’s the problem with the allegations in this complaint,” replied Capps, “because she didn’t let it play out. She resigned before she gave the [public, all-staff] apology.”
“That’s my point,” said Moon. “Is it normal that one would be required to stand before that body and apologize? You know, the [original] comment wasn’t to that body. Is that an overreaction [by division administrators]? Is that why Human Resources said they should have been involved in mediation, because they might not have required that type of thing? If she should be disciplined for what she said, was this the appropriate discipline?”
Capps suggested again that Mais should have endured the hostile treatment for longer to see how it might have “played out.” “She short-cutted that process by resigning before the apology, so we couldn’t watch that play out—this might be a completely different situation if [instead] she had gone into that meeting, had not resigned, made an apology, and the treatment continued and Miss Avery refused to accept her apology. But that’s not what’s alleged, and that didn’t happen because she resigned before it could happen.”
Plaintiff Arguments
Mais’s counsel, Hal Frampton of Alliance Defending Freedom, said that Mais was “subjected by the school district to an environment infused with racial hostility from top to bottom,” and asked the court to look at five elements to determine sufficiently severe pervasive hostility: (1) the content of the Courageous Conversations curriculum, which “trades in crude racial stereotypes,” (2) racist comments made by Hairston, including his “comparison of white parents to slave owners who had raped his mother and sister and beaten him and were now telling him not to talk about it,” (3) the implementation of the curriculum at Agnor-Hurt Elementary, in which white participants were repeatedly told that their perspectives were not welcome, (4) the district’s treatment of Mais in contrast to how it handled the behavior of her co-workers, who cursed at her and intimidated her friends and physically blocked them from visiting her office, with no repercussions, and (5) the refusal of seven different school division officials, including Principal Michael Irani, to intervene during the ongoing racial harassment of Mais by co-workers from June 11 to her last day on September 9;
“School administrators allowed teacher’s aides who were people of color to attend the all-faculty public apology meeting to be seated in the front row, dressed in black t-shirts and camo pants, to intimidate [Mais], while specifically not inviting white teacher’s aides,” said Frampton. “They allowed a teacher’s aide who had harassed Mais to essentially give a rebuttal after Mais’ apology, where she continued to call Mais a racist.”
Regarding the immunity claims, Frampton said, “It’s unlawful for an employer to discriminate against employees and employment agencies, to discriminate because of engaging in protected activity.” He also argued that Mais was acting in some ways outside the scope of her employment “by reaching out affirmatively, raising these issues many times in places when she’s absolutely not required to do so, speaking as a citizen on a matter of public concern.” This latter approach may trigger an exception from sovereign immunity in Virginia.
Judge Moon did not indicate when he would make a decision on the motion to dismiss.
