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IN THE CIRCUIT COURT OF MERCER COUNTY, WEST VIRGINIA

A.G., a minor,
by and through Ad.G. and S.G.,
her parents and next friends,
and Ad.G. and S.G., individually,

Plaintiffs,

v. Civil Action No. _______________


Judge _______________________

THE MERCER COUNTY BOARD OF


EDUCATION, ALMA BELCHER,
STEVE HAYES and DEBORAH AKERS,

Defendants.

COMPLAINT

Now comes the Plaintiffs, A.G., a minor, by and through Ad.G. and S.G., her

parents and next friends, and Ad.G. and S.G., individually, by counsel, JB Akers and

Akers Law Offices, PLLC, and complain and allege as follows:

1. A.G. is a minor child who at all relevant times resided in Mercer County,

West Virginia. Her parents and next friends, Ad.G. and S.G., at all relevant times resided

in Mercer County, West Virginia. A.G., Ad.G. and S.G.’s identities are known by the

Defendants.

2. At all relevant times the Mercer County Board of Education (“Mercer

County BOE”) was a political subdivision doing business in Mercer County, West

Virginia. The Court therefore has personal jurisdiction over this Defendant.

3. At all relevant times the individual Defendants were employed by

Defendant Mercer County BOE. Defendant Mercer County BOE is therefore liable for
the individual Defendants’ misconduct described more fully herein, through respondeat

superior and/or other legal avenues.

4. At all relevant times Defendant Alma Belcher (“Belcher”) was a resident

of and/or worked in Mercer County, West Virginia. The Court therefore has personal

jurisdiction over this Defendant.

5. At all relevant times Defendant Steve Hayes (“Hayes”) was a resident of

and/or worked in Mercer County, West Virginia. The Court therefore has personal

jurisdiction over this Defendant.

6. At all relevant times Defendant Deborah Akers (“Akers”) was a resident

of and/or worked in Mercer County, West Virginia. The Court therefore has personal

jurisdiction over this Defendant.

7. The events giving rise to this cause of action occurred in and about Mercer

County, West Virginia. Venue is therefore appropriately vested in this Court.

8. The Plaintiffs’ claims, more fully described below, arise from certain West

Virginia statutory, common law and regulatory causes of action. The Court therefore has

subject matter jurisdiction over this cause of action.

9. The Plaintiffs’ claims, described more fully below, may include, but are

not limited to, those allowed by West Virginia Code § 29-12A-4(c)(2) and/or (4).

10. The Plaintiffs’ claims against Defendants Belcher, Hayes and Akers may

include, but are not limited to, those allowed by West Virginia Code § 29-12A-5(b)(2)

and/or (3).

11. At all relevant times Plaintiff A.G. was a five year old student at

Cumberland Heights Early Learning Center (“Cumberland Heights”) located in Bluefield,

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Mercer County, West Virginia. Defendant Hayes was and is the principal of Cumberland

Heights and Defendant Belcher was A.G.’s teacher. Defendant Akers was and is the

Mercer County Superintendent of Schools.

12. Beginning early this school year a student in A.G.’s class began bullying

her. Among other things, that student threatened to “cut” A.G. and on at least one

occasion physically assaulted A.G. in the bathroom. A.G.’s father initially notified

school personnel. When she began working at Cumberland Heights in the fall of 2018

A.G.’s father alerted Defendant Belcher.

13. Despite knowing of the earlier incidents of bullying Defendant Belcher

later placed A.G. at the lunch table between the bullying student and that student’s

cousin. On that occasion A.G. was afraid and tried to move from her seat. Defendant

Belcher reportedly slammed A.G. into the lunch table to force her back into her seat.

This occurred just before Christmas Break in December, 2018.

14. In early January 2019, A.G.’s father met with Defendant Belcher about the

bullying student’s acts of misconduct that were known to him at the time. A.G. hid

behind her father during that meeting. A.G.’s father noticed this and was concerned that

A.G. was afraid to report problems or concerns to Defendant Belcher. A.G.’s father

believed her behavior related to her fear of the bullying student. A.G. came home from

school that day very withdrawn. She cried the next morning before school.

15. On a later occasion in early January 2019, Defendant Belcher grabbed

A.G. by the backpack and pushed her. While doing so, Defendant Belcher pulled out

some of A.G.’s hair. That same day Defendant Belcher grabbed A.G. by the arms, shook

her and screamed in her face. Defendant Belcher then forced A.G. to sit on the classroom

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rug beside the bullying student. A.G. cried and became nauseous. That night A.G. told

her father that Defendant Belcher pulled on her arm and screamed in her face. A.G. also

told her father that she asked several times to call home but she was disallowed. That

was the first notice A.G.’s parents had of Defendant Belcher’s individual acts of

misconduct directed towards students in her classroom.

16. The following school morning A.G. begged her father to not reveal the

incidents she reported to him regarding Defendant Belcher. Due in part to the awkward

position of having S.G. work in the same school system and believing the prior day’s

events were isolated, A.G.’s parents agreed with their daughter, which they now regret.

Upon picking A.G. up from school that day A.G.’s father noticed an unexplained red

mark on A.G.’s forehead. A.G. told her father that the bullying student had now also

threatened to “shoot” her. A.G.’s father immediately returned to the school and talked

with Defendant Belcher and Defendant Hayes. Defendant Hayes stated that A.G. simply

needed to know who to stay away from. Later that day, A.G.’s parents found a knot on

her head of unknown origin in the same location as the red mark.

17. Upon information and belief, Defendant’s Belcher’s prior abusive and

neglectful behavior was repeatedly reported by a teacher’s aide to Defendants Hayes and

Akers before it was ever known to A.G.’s parents. That behavior exceeds the limited

examples provided herein as Defendant Belcher reportedly engaged in regular acts of

misconduct towards A.G. and other students. Defendants Hayes and Akers were

reportedly notified that A.G. was just one of several children whom Defendant Belcher

abused and neglected.

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18. Despite the fact that Defendants Hayes and Akers are mandatory reporters

under W.Va. Code § 49-2-803, they did not comply with their legal reporting duties. In

fact, Defendants Hayes and Akers appear to have never been reported Defendant Belcher

to legal authorities.

19. Article XII of the Constitution of the State of West Virginia requires a

thorough and efficient system of free schools. It is well-settled that the education of

children such as A.G. is a fundamental constitutional right.

20. W.Va. Code § 18-2C-1 declares that a safe and civil environment is an

educational necessity.

21. 126 C.S.R. 162-3.2 requires all West Virginia public school employees to

respond immediately and consistently to incidents of bullying, harassment, intimidation,

violence or any other code of conduct violation that impacts negatively on students.

22. 126 C.S.R. 162-4.2.2-3 requires all West Virginia public school personnel

to contribute, cooperate and participate in creating an environment in which all students

are accepted and free from harassment, intimidation, bullying and violence.

23. 126 C.S.R. 162-4.2.5 requires all West Virginia public school personnel to

immediately intervene in any code of conduct violation that has a negative impact on

students.

24. Among other provisions of law, 126 C.S.R. 165-4.2.a.7 requires

superintendents such as Defendant Akers to make decisions that promote the long-term

best interest of students such as A.G.

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25. W.Va. Code § 18-2C-3 prohibits harassment, intimidation or bullying of

students such as A.G. That statute furthermore requires notification of parents when any

such prohibited act occurs.

26. The foregoing is not an exhaustive list of the Defendants’ individual and

collective legal duties and obligations. However, the law clearly provides protection for

students such as A.G. and her parents from the specific acts of misconduct described in

this Complaint.

27. The provisions of law described herein largely if not wholly involve

public safety statutes. Defendants’ violation of those statutes is, at a minimum, prima

facie evidence of negligence.

28. A.G.’s parents removed her from Cumberland Heights after the

Defendants’ failure to protect A.G. and due to A.G.’s fear of Defendant Belcher. Soon

after, they were made aware of the full extent of Defendant Belcher’s abusive and

neglectful conduct toward A.G.

29. At all relevant times S.G. was employed by Defendant Mercer County

BOE in an administrative position.

30. In the spring and fall of 2018, S.G. participated in the reporting and

investigation of a teacher in her own school who was allegedly abusive and neglectful

towards students. That teacher was criminally charged in August 2018.

31. Shortly thereafter, S.G. underwent an unannounced comprehensive audit

of the financial records at the school. S.G. had undergone similar audits in the spring of

2017 and the spring of 2018 that came back with positive reviews. However, her fall

2018 comprehensive audit for the first time contained several negative findings.

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32. The release of the negative audit report occurred approximately two

months after one of S.G.’s former teachers was criminally charged, with her assistance,

and about one month after her husband first complained to Cumberland Heights

personnel about bullying behavior directed at the couple’s daughter.

33. On or about January 11, 2019, S.G. was summoned to a meeting with

Defendant Akers regarding her fall 2018 audit results. During that meeting Defendant

Akers made several negative comments towards S.G. Among other things Defendant

Akers told S.G. that she may want to consider other employment options. This was the

first time that S.G. was told anything like this during her long-term employment with

Defendant MCBOE.

34. Upon information and belief, prior to that January 11, 2019 meeting,

Defendant Akers was put on repeated notice of Defendant Belcher’s abusive and

neglectful misconduct in S.G.’s daughter’s, A.G.’s, classroom. S.G.’s daughter A.G.

was one of the students who was reportedly subjected to Defendant Belcher’s abuse and

neglect and upon information and belief Defendant Akers knew this. Defendant Akers

also knew that one of S.G.’s former teachers had been criminally charged with S.G.’s

assistance. Some or all of the Defendants also knew that Ad.G. had previously

complained of bullying directed at A.G.

35. S.G.’s employment claims, as described more fully in this Complaint, fall

outside the limitations of W.Va. Code §29-12A-1 et seq. since some of the relief sought

revolves around her conditions of employment pursuant to W.Va. Code §29-12A-18 et

seq.

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Count I – Negligence/Civil Assault and Battery

36. The Plaintiffs reincorporate by reference the allegations contained within

the previous paragraphs as if more fully set forth herein.

37. At all relevant times the Defendants, jointly and severally, had a duty to

use reasonable care towards five year old A.G. and S.G. with regard to Defendant Akers

and Defendant Mercer County BOE’s supervision of S.G. as a subordinate employee.

The Defendants breached their duty to use reasonable care. Five year old A.G. also

suffered from repeated civil assaults and batteries along with negligent failures to report

and remediate the misconduct.

38. As a result of the Defendants’ negligent acts, jointly and severally,

Plaintiffs suffered damages.

Count II – Negligent Infliction of Emotional Distress

39. The Plaintiffs reincorporate by reference the allegations contained within

the previous paragraphs as if more fully set forth herein.

40. The Defendants’ actions, jointly and severally, were of such a nature as to

result in a negligent infliction of emotional distress upon five year old A.G. and her

parents, as well as S.G.in relation to her employment.

41. As a result of the Defendants’ actions, both jointly and severally, Plaintiffs

suffered damages.

Count III – Intentional Infliction of Emotional Distress

42. The Plaintiffs reincorporate by reference the allegations contained within

the previous paragraphs as if more fully set forth herein.

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43. The Defendants’ actions, jointly and severally, are of such a serious nature

that they resulted in an intentional infliction of emotional distress upon the Plaintiffs.

44. As a result of the Defendants’ conduct, both jointly and severally,

Plaintiffs suffered damages.

Count IV – Willful Misconduct/Punitive Damages

45. The Plaintiffs reincorporate by reference the allegations contained within

the previous paragraphs as if more fully set forth herein.

46. At all relevant times the Defendants, jointly and severally, acted willfully,

wantonly and with deliberate indifference to the Plaintiffs’ rights.

47. As a result of the Defendants’ misconduct, jointly and severally, the

Plaintiffs suffered damages.

Count V – Constitutional Violations

48. The Plaintiffs reincorporate by reference the allegations contained within

the previous paragraphs as if more fully set forth herein.

49. The Defendants’ actions, jointly and severally, violated five year old

A.G.’s constitutional right to an efficient education that was free of bullying, harassment,

intimidation and abuse.

50. As a result of the Defendants’ conduct, both jointly and severally,

Plaintiffs suffered damages.

Count VI – Workplace Retaliation/Public Policy Violations

51. The Plaintiffs reincorporate by reference the allegations contained within

the previous paragraphs as if more fully set forth herein.

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52. At all relevant times Defendants Mercer County Board of Education and

Akers had a duty to comply with the law as S.G.’s employer/supervisor. Defendant

Mercer County BOE and Defendant Akers breached their duties by retaliating against

S.G. related to events described in this Complaint.

53. As a result of the Defendants’ conduct, both jointly and severally,

Plaintiffs suffered damages.

Count VII – Negligent Supervision/Retention

54. The Plaintiffs reincorporate by reference the allegations contained within

the previous paragraphs as if more fully set forth herein.

55. At all relevant times Defendants Hayes, Akers and Mercer County BOE

had a duty to supervise the relevant Defendants under their chain of command in this

matter. The Defendants failed to uphold their duty of supervision along with negligently

retaining the at-fault employees.

56. As a result of Defendants’ misconduct, jointly and severally, Plaintiffs

suffered damages.

Count VIII – Human Rights Act

57. The Plaintiffs reincorporate by reference the allegations contained within

the previous paragraphs as if more fully set forth herein.

58. At all relevant times five year old A.G. was a protected person pursuant to

W.Va. Code § 55-11-1 et seq. The Defendants’ misconduct violated W.Va. Code Section

5-11-1 et seq. since five year old A.G. was mistreated and discriminated against due to

her age.

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59. As a result of the Defendants’ misconduct, jointly and severally, the

Plaintiffs suffered damages.

WHEREFORE, the Plaintiffs demand judgment against the Defendants, jointly

and severally, in such sums as will fairly and fully compensate them for the damages

sustained as a result of the Defendants’ illegal conduct, together with pre-judgment and

post-judgment interest, attorney’s fees, costs of the proceeding, punitive damages and any

other such relief deemed appropriate.

PLAINTIFFS FURTHER DEMAND A TRIAL BY JURY.

A.G., a minor,
by and through Ad.G. and S.G.,
her parents and next friends,
and Ad.G. and S.G, individually

By Counsel

_______________________________________
JB Akers, Esq. (WVSB #8083)
Akers Law Offices, PLLC
128 Capitol Street
P.O. Box 11206
Charleston, WV 25339
(304) 720-1422
(304) 720-6956 (Facsimile)

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