United States District Court, D. Colorado
BROOKE JACKSON, UNITED STATES DISTRICT JUDGE
matter is before the Court on defendant School District No.
1's (“the District”) motion to dismiss.
Def.'s Mot. to Dismiss, ECF No. 18; Supp. to Mot. to
Dismiss, ECF No. 36. For the reasons below, the Court GRANTS
Shay Carpenter is a former special education teacher at Ellis
Elementary School (“Ellis”)-a public elementary
school located in the District. Second Am. Compl., ECF No. 33
at ¶¶6-8, 45. During the 2014-15 school year Ms.
Carpenter operated Ellis' “center program”
for students with learning disabilities, which is an
educational program for students from around the District
with autism. Id. at ¶8. It is also known as the
“Pragmatic Learning and Executive Functioning” or
“PLEX” program. Id. at ¶9.
Carpenter alleges that at the beginning of that school year
Ellis' principal, Khoa Nguyen, began to express concerns
to District administrators about the legality of the
District's newly-imposed requirement that PLEX program
students spend at least 60% of their time in the program.
Id. at ¶¶14-15. Ms. Carpenter alleges that
she too began to voice her concerns about how the PLEX
program was being run shortly thereafter. Id.at
alleges that she e-mailed the District Superintendent of
Schools, Thomas Boasberg, on November 8, 2014 to complain
about what she perceived as the “horrific state of
special education” in the District region that
encompasses Ellis. Id. at ¶18. Ms. Carpenter
alleges that she also complained to Mr. Boasberg about the
legality of the District's special education policy
described above, which she contends was imposed by the
District “in order to financially rationalize [special
education students'] being transported to school each
day.” Id. at ¶19. Plaintiff also
allegedly complained about the PLEX program's
student-to-staff ratio. Id. at ¶20. Around the
same time she e-mailed these concerns to Mr. Boasberg,
plaintiff allegedly posted similar criticisms of the
District's special education program on her Facebook
page. Id. at ¶23.
he did not address Ms. Carpenter's complaints himself,
Mr. Boasberg quickly responded to Ms. Carpenter's e-mail
complaints by informing her that he would refer them to the
District's head of student services, Mr. John Simmons.
Id. at ¶25. Two days later on November 10, 2014
Mr. Simmons reached out to Ms. Carpenter via
e-mail. Id. at ¶26. He asked
plaintiff to meet with legal support and the District's
Director of Special Education so that the District could
address her concerns. Id. Mr. Simmons also allegedly
asked Ms. Carpenter about the basis for her allegations that
the special education program was being run
“illegally.” Id.at ¶27. Ms.
Carpenter alleges that she followed up with “specifics
via e-mail over the next few days.” Id.
Despite her correspondence with Mr. Simmons, Ms. Carpenter
claims that she never received a written response to her
concerns about the PLEX program from any District
administrators. Id. at ¶28.
event, after expressing her concerns to District
administrators via e-mail Ms. Carpenter was allegedly called
into the Ms. Connie Clifton's office (i.e., the Assistant
Principal of Ellis) on or about November 14, 2014.
Id. at ¶29. At that meeting Ms. Clifton
allegedly directed plaintiff to “drop the issue of [a]
lack of paraprofessional support[.]” Id. Ms.
Clifton also allegedly informed plaintiff during this meeting
that the District's legal team “had determined that
the PLEX program complied with the [Individuals with
Disabilities Education Act] and that [Ms. Carpenter] was not
to use the term ‘illegal' anymore” to
describe the program. Id. Ms. Clifton then told Ms.
Carpenter that Mr. Simmons had seen plaintiff's Facebook
“post” and that plaintiff was also “not to
say anything critical about the District on her ([Ms.]
Carpenter's) Facebook page.” Id. at
¶30. Lastly, Ms. Clifton allegedly informed Ms.
Carpenter that plaintiff was to cancel a meeting that she had
scheduled with parents of PLEX program students to apparently
discuss her complaints about the PLEX program's legality.
Id. at ¶31.
this meeting Ms. Carpenter alleges that District employees
took additional “retaliatory” actions against her
over the next few months for her expressing these concerns.
See Id. at ¶¶32-44. First, she alleges
that on December 17, 2014, roughly a month after her initial
meeting with Ms. Clifton, Ms. Clifton again told her that she
“was communicating with parents” of PLEX program
students “more than she should have.”
Id. at ¶33. Ms. Clifton then allegedly
instructed plaintiff “not to communicate ‘too
much' with [these] parents[, ]” although she did
not put this “instruction” in writing.
on December 18, 2014 Mr. Jason Thompson, another District
administrator, emailed Ms. Carpenter to tell her that she
would have to be “removed from the classroom”
temporarily because she was not “highly
qualified” for her teaching position under the No Child
Left Behind (“NCLB”) statute. Id. at
¶35. Ms. Carpenter alleges that before she started her
job at Ellis she convinced District employees that she did
not need to complete the test and that the District had
agreed. Id. at ¶10. In any event, Ms. Carpenter
eventually took the test and passed. Id. at
¶38. The District never removed her from her teaching
position during this time. See id.
the next year Ms. Carpenter's concerns about the PLEX
program apparently began anew. On January 25, 2015 she
e-mailed Ellis' principal and Ms. Clifton to inform them
of alleged safety concerns in her classroom after one of her
elementary school students “assaulted” another
student and issued a death threat. Id. at ¶40.
Ms. Carpenter alleges that she felt that “she was in a
physically dangerous situation” due to “the lack
of paraprofessional support at the PLEX program[, ]”
which she believed led to this student-on-student violence.
Id. at ¶41. Ms. Carpenter also alleges that
this same student allegedly “physically intimidated
staff with scissors” at some point in time in addition
to allegedly stabbing other students with pens and pencils.
Id. at ¶42.
heeding plaintiff's concerns, the District conducted a
threat assessment on the student whom committed the assault
and issued the student a “one day, in school,
suspension.” Id. Ms. Carpenter nevertheless
alleges that she felt that this “action” was
inadequate. See Id. She soon requested that the
student's placement be changed and informed a District
administrator that she would stop coming to school to teach
until the District took those actions. Id. at
¶43. Ms. Carpenter, however, did not carry out her
threat, nor was the student apparently transferred. See
Id. Ms. Clifton nevertheless informed Ms. Carpenter
shortly thereafter on January 28, 2015 that plaintiff would
receive a “letter of reprimand” for having made
such a threat not to show up for work. Id. at
¶44. The District never issued plaintiff that letter,
however, as Ms. Carpenter formally resigned her position
three days later on January 31, 2015. Id. at
she resigned, Ms. Carpenter filed a complaint against the
District with the Department of Education's Office of
Civil Rights (“OCR”). Id. at ¶47;
see ECF No. 14-2 at 1 (OCR letter). In that
complaint, plaintiff “alleged that the District failed
to make individual placement determinations for students with
disabilities in the PLEX program.” ECF No. 33 at
¶47. A few months after plaintiff filed this
complaint, the District entered into a Resolution Agreement
with OCR wherein “the District agreed to conduct a
staffing meeting for all intermediate PLEX program
students” and “to provide training to Ellis
Elementary Staff as to their responsibilities under Title II
of the Americans with Disabilities Acts [(“ADA”)]
and Section 504 of the Rehabilitation Act of 1973.”
Id. at ¶48; see ECF No. 14-2 at 2-4
(Resolution Agreement). That Agreement, however, stated that
“the District's decision to enter into [the]
Agreement [was] not an admission of liability or wrong-doing,
nor shall it be construed as such.” ECF No. 14-2 at 2.
resigning from Ellis and filing a complaint with OCR, Ms.
Carpenter brought suit against the District in this Court on
July 5, 2016. Compl., ECF No. 1. In her initial complaint,
plaintiff alleged two causes of action: (1) a claim for
“retaliation” under Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 701, et
seq.; and (2) a First Amendment retaliation claim
brought under 42 U.S.C. § 1983. Id. at 50-58.
The District moved to dismiss plaintiff's initial
complaint on September 12, 2016, alleging that plaintiff
failed to state a claim with either cause of action. ECF No.
11. Roughly two weeks later plaintiff amended her complaint
thus rendering defendant's motion “moot.” ECF
Nos. 14, 16.
October 3, 2016 the District re-filed its motion to dismiss.
ECF No. 18. Shortly after that motion was fully briefed,
plaintiff moved for leave to amend her complaint once again.
ECF No. 30. Granting plaintiff's motion on March 21,
2017, the Court nevertheless instructed the parties that
defendant did not need to re-file its motion to dismiss, and
that both parties could file short “supplements”
to their briefings on that pending motion after plaintiff
filed her second amended complaint. ECF No. 32.
Plaintiff's second amended complaint was subsequently
docketed on March 21, 2017. ECF No. 33. It added an
allegation of “unlawful prior restraint” to her
First Amendment claim and a third claim for relief under
§ 1983 for alleged Rehabilitation Act violations.
Id. Defendant filed its supplement to its motion to
dismiss two ...