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Carpenter v. School District No. 1

United States District Court, D. Colorado

April 20, 2017

SHAY CARPENTER, Plaintiff,
v.
SCHOOL DISTRICT NO. 1, CITY AND COUNTY OF DENVER, COLORADO, Defendant.

          ORDER

          R. BROOKE JACKSON, UNITED STATES DISTRICT JUDGE

         This 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 defendant's motion.

         I. FACTS

         Plaintiff 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.

         Ms. 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 ¶¶15-16.

         She 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.

         Although 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.[1] 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.

         In any 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.

         After 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. Id.

         Next, 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.

         Early 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.

         Apparently 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 ¶45.

         Before 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.

         Procedural History

         After 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.

         On 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 ...


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