IN THE CIRCUIT COURT OF HARRISON COUNTY, WEST VIRGINIA

CC, and J.C., as next friend(s) of the

minor child M.C.,
Plaintiff(s),
v. Civil Action No:
Judge:
THE HARRISON COUNTY
BOARD OF EDUCATION,
Defendant.

 

COMPLAINT FOR DAMAGES AND INJUNCT IVE RELIEF

 

NOW COMES, the Plaintiffs CC. and .C. as next fn'end(s) of the minor child, M.C. by
and through their counsel Teresa C. Toriseva, Esq, and Toriseva Law, and Loree Stark, Esq. of
the American Civil Liberties Union Foundation of West Virginia, for their Complaint against the
Defendant does so state and allege the following:

PARTIES
l. Plaintiffs CC. and J.C. (hereinafter referred to as ?Plaintiffs?) are adult individual
residents of Harrison County, West Virginia, and is the next friend of MC.
2. The minor child MC. is a minor child residing in Harrison County, West Virginia who
attends Liberty High School.
3. Defendant Harrison County Board of Education (hereinafter is a corporation

authorized and organized under West Virginia Code ?18-5-5.

JURISDICTION AND VENUE

4. All allegations contained herein occurred in Harrison County, at Liberty High School in
Clarksburg, West Virginia.

5. Harrison County Board of Education is a corporation authorized and organized under
West Virginia Code ?18-5-5 with its principal place of business located at 445 W. Main
St., Clarksburg, West Virginia 26301.

LACE

6. The minor child MO is currently ajunior at Liberty High School.

7. Prior to his freshman year at the school, MC. and his parents met with members of the
administration of the school so that the school and faculty would be informed that MO
was a transgender boy, that he preferred to be referred to by his chosen name, that his
pronouns were ?his?, and ?him?, and that he planned to use the boys? restroom.

8. On or about Tuesday, November 27, 2018, MC. needed to use the restroom a?er school
but prior to a scheduled trip with. the school band to Morgantovm.

9. On this day, M.C. went to use the boys? restroom near the cafeteria. After checking to
make sure no one else was in the restroom, he went into a stall.

10. Moments later, Mr. Lee Livengood, an assistant principal at Liberty High School,
followed M.C. into the restroom and began berating M.C. while he was in the stall
regarding choice of bathroom.

11. MC. explained that he was a boy and that is why he was using that restroom and that the
restroom was empty when he entered.

12. Mr. Livengood, then challenged M.C. to ?come out here and use the urinal? in front of

him if he was really a boy.

13. Mr. Livengood demanded that M.C. expose his private area in front of and in the
presence of Mr. Livengood.

I4. M.C. explained to Mr. Livengood that he was assigned as a female at birth, but that he
identi?es as a male.

15. As M.C. exited the stall, Mr. Livengood blocked the exit of the restroom preventing M.C.
from leaving the restroom.

16. Mr. Livengood is a fully grown adult male and is much larger that M.C.

17. Mr. Livengood con?ned M.C. in the restroom and verbally assaulted M.C. which
frightened M.C. and made him fear for his safety and well-being.

18. When M.C. escaped from the restroom, he was met by a parent of another child in the
band. M.C. broke down into tears and began crying uncontrollably.

19. Mr. Livengood, in the presence of this other parent then stated, ?I?m not going to lie, you
freak me out.?

20. Mr. Livengood?s tirade and assault of M.C. was so loud it could be heard down the
hallway and into the cafeteria.

21. CC. and her husband J.C. spoke with members of the administration at Liberty High
School as well as an assistant superintendent within 24 hours following this incident.

22. DeSpite being assured that an investigation would take place, Mr. Livengood has
continued to be at the school daily and no one from the school or the Harrison County
Board of Education contacted C.C. in the weeks following the incident to take 
statement or to update the family.

23. In the time following the incident, M.C. has suffered from severe anxiety associated with

his education and his extracurricular activities.

24. C.C., .C., and the minor child M.C. received no meaningful response from the Harrison
County Board of Education until the ACLU-WV became involved.

25. In the interim, Mr. Livengood continued to overtly attempt to intimidate/harass both C.C.
and the minor child M.C.

26. On December 6, 2018 C.C. offered to help at the concession stand for the North Marion
and Fairmont basketball game held at Liberty High School.

27. Upon arrival at this game C.C. and M.C. were informed that Mr. Livengood was present.

28. C.C. instructed M.C. to stay in the concession stand with her until he was to perform with
the drumline.

29. C.C. reports that as soon as Mr. Livengood came into the cafeteria and noticed M.C. was
there, he got into line at the concession stand to purchase something.

30. When Mr. Livengood was ordering and getting his items from the concession stand C.C.
and M.C. turned their back while C.C. hugged her son M.C. to comfort him.

31. MI. Livengood continued to intimidate M.C. by walking back in forth in front of the
concession stand without reason.

32. Mr. Livengood then sat close by the concession stand and sat at a table facing the
concession stand while staring at C.C. and M.C.

33. Finally, once M.C. left the concession stand to play with the drumline, Mr. Livengood
took it upon himself to walk directly in front of the band as if he was chaperoning them
into the gym. The actions of Mr. Livengood, made M.C. extremely uncomfortable and

anxious.

34. After the November incident, Mr. Livengood was suspended and then later reinstated.

35about the week of March 20, 2019, the HCBE voted not to renew Mr. Livengood?s
contract at the end of the school year.
Soon after, with full knowledge of the afore-described incident, the HCBE reversed itself
and voted to renew the contract of Mr. Livengood.
Throughout the remainder of the school year, despite an agreement between CC. and
Defendant HCBE that Mr. Livengood would never intentionally share the same Spaces as
M.C., Mr. Livengood would continuously appear and remain present during lunch
period.
At all times relevant hereto, Mr. Livengood was an Assistant Principal of Liberty High
School, employed by Defendant HCBE and acted as an agent and representative of
Defendant HCBE.

_C_o;t_mt 1: False 
Plaintiffs incorporate by reference in this count all other material allegations set forth
elsewhere in this complaint.
Mr. Livengood and other employees named and not named were acting as the agents,
representatives, and employees of the Harrison County Board of Education when they
committed the acts herein.
An actor is subject to liability for false imprisonment if he acts intending to con?ne
the other or third person within boundaries ?xed by the actor and his act directly or
indirectly results in such a con?nement of the other, and the other is conscious of the
con?nement or is harmed by it. Restatement 2d of Torts ?35 (211d 1979).
When M.C. exited the stall in the restroom, Mr. Livengood blocked the exit of the

restroom and prevented M.C. from escaping the restroom without consent.

43.

44.

45.

46.

47.

48.

49.

50.

51.

Mr. Livengood intended to block MC. in the restroom in order to intimidate, scare, and
assault M.C.
MO. was aware he was being con?ned and knew of no other means of escape except the
single entrance to the restroom which Mr. Livengood physically barricaded with his
body.
As a direct and proximate result of Defendant liability through its employee,
agent, and representative Mr. Livengood, M.C. suffered personal injuries and damages,
including but not limited to suffering and mental anguish, past and future lost enjoyment
of life, past and future humiliation, embarrassment, indignity, and shame, economic
damages, diminished earning capacity, and future lost wages.

Count 2: Assault
Plaintiff incorporates by reference in this count all other material allegations set forth
elsewhere in this complaint.
Mr. Livengood and other employees named and not named were acting as the agents,
representatives, and employees of the Harrison County Board of Education when they
committed the acts herein.
Mr. Livengood is an adult fully grown male. M.C. is a minor child.
While imprisoned in the restroom, Mr. Livengood berated M.C. demanding that M.C.
expose himself and use the urinal in front of him.
Mr. Livengood further placed MC. in the reasonable fear of an immediate and
nonconsensual touching.
As a direct and proximate result of Defendant liability through its employee,

agent, and representative Mr. Livengood, M.C. suffered personal injuries and damages,

including but not limited to suffering and mental anguish, past and future lost enjoyment
of life, past and future humiliation, embarrassment, indignity, and shame, economic
damages, diminished earning capacity, and future lost wages.

Count 3: Sexual Harassment

52. Plaintiff incorporates by reference in this count all other material allegations set forth

53.

elsewhere in this complaint.

Conduct of as sexual nature may include, but is not limited to, verbal or sexual
comments regarding physical or personality characteristics of a sexual
nature; sexually?oriented ?kidding,? And any harassing conduct to which
an employee or student would not be subjected but for such person?s sex. Harry v.

Marion Cly. Bd. of Educ, 203 W. Va. 64, 65 (1998).

54. Sexual harassment by employees, such as an assistant principal, is automatically imputed

55.

56.

to the employer, Harrison County Board of Education, when the harassment results in
tangible harm to the student such as M.C.

As a direct and proximate result of Defendant liability through its employee,
agent, and representative Mr. Livengood, M.C. suffered personal injuries and damages,
including but not limited to suffering and mental anguish, past and future lost enjoyment
of life, past and future humiliation, embarrassment, indignity, and shame, economic

damages, diminished earning capacity, and future lost wages.

Count 4: Intentional Iu?iction of Emotional Distress

 

Plaintiff incorporates by reference in this count all other material allegations set forth

elsewhere in this complaint.

57. The student?school administrator relationship should entitle a student to a greater degree
of protection from insult and outrage than if he were a stranger to a defendant.

58. The conduct of Defendant HCBE by and through its agent, representative, and employee
Mr. Livengood was atrocious, intolerable and so extreme and outrageous that it exceeded
the bounds of decency.

59. The Defendant HCBE by and through its agent, representative, and employee Mr.
Livengood acted with the intent to in?ict emotional distress, and/or acted recklessly when
it was certain or substantially certain emotional distress would result from Mr.
Li'vengood?s conduct of imprisoning a student in the bathroom, demanding that student
expose himself, scaring and ?ightening the student, and stating that the student freaked
the assistant principal out.

60. As a direct and proximate result of Defendant liability through its employee,
agent, and representative Mr. Livengood, M.C. suffered personal injuries and damages,
including but not limited to suffering and mental anguish, past and future lost enjoyment
of life, past and future humiliation, embarrassment, indignity, and shame, economic

damages, diminished earning capacity, and future lost wages.

Count 5: Negligence Per Se

61. Plaintiff incorporates by reference in this count all other material allegations set forth
elsewhere in this complaint.

62. W. Va. Code 18-201 states ?[t]he Legislature ?nds that harassment, intimidation or
bullying, like other disruptive or violent behavior, is conduct that disrupts both a student's

ability to learn and a school's ability to educate its students in a safe, nonthreatening

63.

environment. The Legislature further ?nds that students learn by example. The
Legislature charges school administrators, faculty, staff and volunteers with
demonstrating appropriate behavior, treating others with civility and respect, and refusing
to tolerate harassment, intimidation or bullying.?

W. Va. Code states ?[e]ach county board policy shall, at a minimum,
include the following components:

(1) A statement prohibiting harassment, intimidation or bullying of any student on school
property, a school bus, at a school bus step or at school sponsored events;

(2) A de?nition of harassment, intimidation or bullying no less inclusive than that in
section two of this article;

(3) A procedure for reporting prohibited incidents;

(4) A requirement that school personnel report prohibited incidents of which they are
aware;

(5) A requirement that parents or guardians of any student involved in an incident
prohibited pursuant to this article be noti?ed;

(6) A procedure for documenting any prohibited incident that is reported;
(7) A procedure for responding to and investigating any reported incident;

(8) A strategy for protecting a victim from additional harassment, intimidation or
bullying, and from retaliation following a report;

(9) A disciplinary procedure for any student guilty of harassment, intimidation or
bullying;

(10) A requirement that any information relating to a reported incident is con?dential,
and exempt from disclosure under the provisions of chapter twenty-nine?b 29B-
1?1 et seq] of this code; and

(11) A requirement that each county board shall input into the uniform integrated
regional computer information system (commonly known as the West Virginia
Education Information System) described in section twenty-six 18-2-26], article
two of this chapter, and compile an annual report regarding the means of harassment,
intimidation or bullying that have been reported to them, and the reasons therefor, if
known. The West Virginia Department of Education shall compile the information

and report it annually beginning July 1, 2012, to the Legislative Oversight Committee
on Education Accountability.

64. Upon information and belief, Defendants policy regarding bullying, harassment
and intimidation either does not exist or if it exists, is woefully inadequate in
violation of West Virginia Law.

65. Further, the Defendant, if it has a policy regarding bullying, harassment and
intimidation, violated that policy when Mr. Livengood as its agent, employee, and
representative committed the acts as aforementioned.

66. At all times material and relevant herein, Mr. Livengood was the assistant
principal of Liberty High School;

67. Defendant Harrison County Board of Education was aware that this incident of
harassment, bullying, and intimidation occurred between Mr. Livengood and
MC.

68. Defendant was negligent per se in that the actions of its employee Mr. Livengood
were the exact type of atrocious, inexcusable actions that Code 
et seq. was intended to prevent.

69. Defendant breached its duty by failing to immediately act to address and remedy
this situation.

70. As a direct and proximate result of Defendant liability through its employee,
agent, and representative Mr. Livengood, M.C. suffered personal injuries and damages,
including but not limited to suffering and mental anguish, past and throw lost enjoyment
of life, past and future humiliation, embarrassment, indignity, and shame, economic

damages, diminished earning capacity, and future lost wages.

10

71.

72.

73.

74.

75.

76.

Count 6: Negligent Retention Hiring and Supervision
Plaintiff incorporates by reference in this count all other material allegations set forth
elsewhere in this complaint.
Defendant HCBE possessed a duty to use reasonable care in the selection and retention
of its respective employees.
Code ?18-2-1 states that the Legislature ?nds that a safe and civil environment in
school is necessary for students to learn and achieve high academic standards. The
Legislature finds that harassment, intimidation or bullying, like other disruptive or violent
behavior, is conduct that disrupts both a student?s ability to learn and a school?s ability to
educates its students in a safe, nonthreatening environment. The Legislature further ?nds
that students learn by example. The Legislature charges school administrators, faculty,
staff and volunteers with demonstrating appropriate behavior, treating others with civility
and respect, and refusing to tolerate harassment, intimidation or bullying.
Defendant HCBE, knew or should have known that retaining and renewing the contract
of an employee who falsely imprisoned, assaulted, sexually harassed, sexually abused,
bullied, and further intimidated a student and minor child could result in harm to the
child.
After Mr. Livengood committed the November incident, Defendant HCBE reversed its
earlier vote to allow Mr. Livengood?s contract to expire and renewed Mr. Livengood?s
contract.
Subsequent to Defendant vote to renew his contract, Mr. Livengood violated an
would continuously appear during lunch period to further intimidate, harass, and

bully MC.

11

77. Instead of protecting a student who suffered a traumatic event at the hands of an
employee, Defendant HCBE tolerated and rewarded Mr. Livengood with a new contract
and enabled Mr. Livengcod?s ability to intimidate, harass, and bully M.C.

78. As a direct and proximate result of Defendant negligent hiring, retention, and
supervision, M.C. suffered personal injuries and damages, including but not limited to
suffering and mental anguish, past and ?lture lost enjoyment of life, past and future
humiliation, embarrassment, indignity, and shame, economic damages, diminished
earning capacity, and future lost wages.

Count 7: Punitive Damages- Harrison County Board of Education

79. Plaintiff incorporates by reference in this count all other material allegations set forth
elsewhere in this complaint.

80. In their failure to act on behalf of J.C., CC, and protect M.C., the HarrisOn County
Board of Education acted with malice, oppression, or wanton, willful, or reckless conduct
with indifference to civil obligations affecting the rights of .C., 0.0., and M.C. which
gives rise to punitive damages.

WPIEREFORE, Plaintiffs pray for judgment against the Defendant, for compensatory
damages for their special and general injuries as herein alleged, including, but not limited to,
permanent physical injuries, past and future pain, suffering and mental anguish, past and future
lost enjoyment of life, past, and future humiliation, embarrassment, indignity, and shame,
economic damages, diminished earning capacity, and future lost wages, attorney fees, the costs

of this action and for such other legal and equitable relief to which they may be entitled.

12

Count 8: Iniunctive Relief to Prevent Lee Livengood from Interaction with M.C.

81. On January 11, 2019 a meeting was held consisting of representatives from the Harrison

County Board of Education and representative for the minor child MC.

82. At the conclusion of the meeting Superintendent Mark Manchin, a?er considering the

concerns of the J.C., CC. and M.C., the ACLU-WV, and Fairness West Virginia agreed

to the following:

a.

g.

Authorize and implement a gay-Straight Alliance club immediately at Liberty
High School;

Authorize and implement policies requiring all employees in the Harrison County
School District to, upon notice by a student, teacher, or administrator, refer to
students by the name and pronouns that correspond with their gender identity;

Authorize and implement polices requiring administrators to, upon a request by a
student or student?s guardians, update student education records (such as
attendance reports, school IDs, transcripts, electronic records) with the student?s
chosen name and the apprOpriate gender markers;

Authorize, implement, and maintain comprehensive ongoing training for staff,
teachers, and administrators in Harrison County Schools;

Work with Fairness West Virginia on the substance and execution of the training
referenced in paragraph 4;

Require Assistant Principal Livengood to:

i. Write a letter of apology to MC. with regards to the November 27, 2018
incident; and

ii. Attend a training with regards to best practices for working with 
students prior to his reinstatement;

Ensure an environment exists where Assistant Principal Livengood have little to
no interaction with M.C.

83. Despite this agreement Mr. Livcngood continues to violate paragraph g. of the agreement

mentioned above.

13

84. Mr. Livengood did provide MC. with a woefully inadequate written apology in which he
apologized only for "raising his voice."

85. The Defendant l-Iarrison County Board of Education has been made aware ol?every time
that Mr. livengood has appeared in M.C.'s lunch period despite the fact that there are
other school staffthat are already present at these lunches.

86. Mr. Livcngood has demonstrated that he does not take the terms of the agreement
seriously as he continues to try and manipulate his work duties to interact with M.C..

87. Pursuant to Rule 65 ol'the West Virginia Rules Procedure, the l?laintil'l'is seeking
an injunction forcing the Defendant to require that Mr. Livengood have no further contact
and/or interaction with C.C.. or M.C.

WHEREFORE, Plaintiff requests an injunction requiring the Defendant Harrison
County Board of Education preventing Lee Livengood from interacting. or having contact with
or MC.

DEMANDS A TRIAL BY JURY.

    

 

 

PlaintiffC. .

Teresa C. 'l?oriscva. Esq. force Stark. Esq.

WV Bar ll) No. 6957 WV Bar ID No. 12936

'l?oriseva Law ACLU l-?oundation of West Virginia
1446 National Road PO Box 3952

Wheeling. WV 26003 Charleston, WV 25339-3952
304-238?0066 304-345-9246
iusticetwlorisevalunzeom iiLItt?lx'H 

 

14

VE ICAT ON
1, Caroline Critch?eld, do hereby certify and swear under penalty of perjury that the
factual information set forth in the foregoing Complaint, is true and correct, to the best of her

knowledge and belief, the undersigned certi?es and veri?es as aforesaid that she verily believes

the same to be true.

 

CAROLINE CRITCHFIBLIN
STATE OF I 
COUNTY :01 to-wit:
I. ?EthYUjh/?Uw . a Notary Public in and for the State and

 

County aforesaid do hereby certify that Caroline Critch?eld, whose name is signed in the
foregoing Veri?cation bearing the date of the a I?m day of August, 2019, has this day
acknowledged the same before me in my said county.

Given under my hand this mm day of Hucgusi? ,2019.

My commission expires QIOHWM 51031.0

Wat/ow

Notary Public