United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
FASHING UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on defendants Connie Chene,
Tamara Henderson, and Carlos Romero's (hereafter
sometimes referred to collectively as “Individual
School Defendants”) Motion to Dismiss Based on
Qualified Immunity (Doc. 44) and defendant Alice King
Community School (AKCS) Governing Council's Motion to
Dismiss Breach of Contract Claim (Doc. 53). Plaintiffs
Veronica and Flint Pierce oppose both motions. Docs. 54, 55.
Having considered the parties' submissions and the
relevant law, I GRANT in part and DENY in part the Individual
School Defendants' Motion to Dismiss Based on Qualified
Immunity. I GRANT AKCS's Motion to Dismiss Breach of
ruling on a motion for judgment on the pleadings, the Court
must accept as true all facts alleged in the amended
complaint. See Smith v. United States, 561 F.3d
1090, 1098 (10th Cir. 2009). It also must view these factual
allegations in the light most favorable to the plaintiffs.
See Id. Viewing the facts alleged in the amended
complaint in this manner, the amended complaint establishes
VanDerMey was a teacher at AKCS. Doc. 10 at 2, ¶
The daughter of plaintiffs Veronica and Flint Pierce attended
AKCS, and Ms. VanDerMey was their daughter's teacher for
the 2013-2014 academic year. Id. at 4, ¶¶
1, 4. The Pierces' son also was enrolled at AKCS for the
2013-2014 academic year. See Id. at 4, ¶1.
Defendant Connie Chene was the principal at AKCS, defendant
Tamara Henderson was the vice principal,  and defendant
Carlos Romero was the president of the AKCS Governing
Council. Id. at 2, ¶¶ 4, 6, 7.
early February 2014, Mr. Pierce contacted Ms. VanDerMey and
informed her that his daughter had complained that another
student had been harassing her for several months.
Id. at 4, ¶ 5. Ms. VanDerMey responded that she
had not seen any of the harassment, but that the other
student came off “harsh at times.” Id.
at 4, ¶ 6. Shortly thereafter, Ms. VanDerMey informed
Mrs. Pierce that the other student had written the
Pierces' daughter a “heartfelt note of
apology.” Id. at 5, ¶ 7.
in February, Mrs. Pierce informed Ms. VanDerMey that her
daughter still was complaining that the other student was
bullying her. Id. at 5, ¶ 8. Mrs. Pierce
suggested that Ms. VanDerMey speak to the other student's
parents. Id. The following day, Ms. VanDerMey
responded to Mrs. Pierce by stating that in her view, both
students were at fault. Id. ¶ 9. Mrs. Pierce
was surprised by this response as she was extremely involved
in her daughter's education, and Ms. VanDerMey had never
before reported that the Pierces' daughter had
misbehaved. Id. However, Mrs. Pierce “was
denied the opportunity to speak to Ms. VanDerMey” to
discuss the issue when she picked her daughter up from school
that day. Id. ¶ 10.
Pierce later learned that both her daughter and the other
student were sent to Ms. Chene's office on February 26,
2014, and were directed to apologize to one another.
Id. Ms. Chene had the Pierces' daughter sit on
her lap. Id. The Pierces' daughter was crying
and uncomfortable during the entire exchange. Id.
Five days later, on March 3, 2014, the Pierces met with Ms.
Chene and Ms. Henderson. Id. ¶ 11. Ms. Chene
acknowledged that the Pierces' daughter had cried when
she was sent to the principal's office on the
26th, and that Ms. Chene had had their daughter
sit on her lap. Id. Ms. Chene informed the Pierces
that the other student had stayed in her office after their
daughter left, and that she had a more stern conversation
with the other student. Id. Ms. Chene also said that
the other student “gets in trouble a lot.”
mid-March 2014, the Pierces had a parent-teacher conference
with Ms. VanDerMey. Id. ¶ 12. Ms. VanDerMey did
not express any concern at this conference about the behavior
of the Pierces' daughter. Id. She only
complimented their daughter's behavior and academic
the parent-teacher conference and continuing until April 1,
2014, the other student continued to bully the Pierces'
daughter, and the Pierces' daughter reported each
incident to Ms. VanDerMey. Id. ¶ 13. When Mrs.
Pierce tried to contact Ms. VanDerMey to discuss a particular
threat by the other student, Ms. VanDerMey did not respond.
Id. On April 8, 2014, the Pierces' daughter
reported that Ms. VanDerMey had made fun of her for picking
her nose in class. Id. ¶ 14. When Mrs. Pierce
sought clarification from Ms. VanDerMey regarding this
incident, Ms. VanDerMey did not respond. Id. On
April 9, 2014, Ms. VanDerMey emailed Mrs. Pierce and
suggested that it might be in Mrs. Pierce's
daughter's best interest to move to another classroom.
Id. ¶ 18. The same day, when Mrs. Pierce went
to pick her children up from school, she spoke to the other
student's father about the conflict between her daughter
and his son. Id. ¶ 19. The other student's
father said that Ms. VanDerMey had told him that the
Pierces' daughter was picking on his son and was
fabricating the bullying allegations. Id. Ms. Chene
interrupted the conversation and prevented its continuation,
even though it had been cordial. Id. ¶ 20. When
the father of the other student suggested that it might be
best for his son to move to another class, Ms. Chene put her
arm around his son and said that he would not have to move to
another class although the school was considering moving the
Pierces' daughter to another class. Id. ¶
April 9, 2014, Mrs. Pierce emailed Ms. Chene and informed her
that Ms. VanDerMey was not responding to her requests to
meet. Id. ¶15. Mrs. Pierce requested a meeting
with Ms. Chene. Id. Ms. Chene said that she could
only meet after spring break, which was set to begin on April
10, 2014. Id. ¶ 16.
April 10, 2014, Mrs. Pierce asked Ms. Chene how she could
contact the school board. Id. ¶ 22. The same
day, Mrs. Pierce reported “to APS [Albuquerque Public
Schools] concerning the manner in which the Pierces'
complaints of bullying were being handled.”
Id. Between April 10 and April 21, 2014, the Pierces
attempted to contact the AKCS Governing Council several times
“about the way the school was shutting down their
attempts to resolve the bullying of their daughter.”
Id. ¶ 27. On April 22, 2014, Mr. Romero wrote
to Mrs. Pierce and recommended that the Pierces schedule a
meeting with Ms. Chene, and that “the school board
supports the voluntary resolution of conflict.”
Id. ¶ 28.
April 15, 2014, Ms. Chene sent an email to the Pierces
instructing them to end all communication with Ms. VanDerMey.
Id. ¶ 26. On April 22, 2014, after the
Pierces' daughter reported another instance of bullying,
Mrs. Pierce approached Ms. Chene and started to tell her
about the new incident. Id. ¶¶ 29, 30. Ms.
Chene responded that she had nothing else to speak to Mrs.
Pierce about, and Mrs. Pierce left the school. Id.
on April 22, 2014, the Pierces met with Ms. Chene, Ms.
Henderson, and the school secretary to discuss the bullying
issue. Id. ¶¶ 31, 32, 35. When Mr. Pierce
complained that no investigation had been done into his
daughter's allegations of bullying, Ms. Chene laughed.
Id. ¶ 33. When Mr. Pierce asked why she was
laughing, Ms. Chene said it was because none of the
allegations were true. Id. “The meeting ended
with the Pierces being threatened that they could be removed
from the school for ‘disrupting the educational
environment.'” Id. Following the meeting,
Mrs. Pierce sent an email to Mr. Romero to report the new
bullying incident, Ms. Chene's initial refusal to speak
to her, the meeting and Ms. Chene's laughing at them, and
the threat to ban them from the AKCS campus. Id.
next day, on April 23, 2014, an Albuquerque Police Department
(APD) officer informed the Pierces that Ms. VanDerMey and Ms.
Chene were afraid of violence. Id. ¶ 36. The
APD officer's incident report, however, revealed that the
officer told Ms. VanDerMey and Ms. Chene that the
Pierces' emails and their meeting with Ms. Chene and
other school officials the previous day did not amount to
harassment. Id. ¶ 37. Specifically, the officer
stated, “I advised them [Ms. VanDerMey and Ms. Chene]
that based on what was being described to me, the emails did
not rise to the level of harassment. I also advised [Ms.
Chene] that her raising her voice towards [Mr. Pierce] did
not rise to the level of harassment either.”
Id. Ms. Chene told the officer that the school was
considering disenrolling the Pierces' children, but Ms.
Chene did not want the officer to convey this information to
the Pierces because it would inflame them further.
Id. ¶ 38. According to the amended complaint,
Ms. VanDerMey and Ms. Chene's report to the APD officer
“was a clear attempt to retaliate against the Pierces,
was a misuse of the criminal process, and  was just a step
in their scheme to disenroll the Pierces' children from
school because the Pierces never exhibited any violent
behavior whatsoever.” Id. ¶ 39.
April 24, 2014, Mrs. Pierce attempted to walk her children to
their classrooms, but Ms. Chene prevented her from doing so.
Id. ¶ 40. Ms. Chene told Mrs. Pierce that she
was not allowed to escort her children on campus.
Id. The next day, the Pierces received a letter from
Ms. Chene dated April 22, 2014, but postmarked April 24,
2014. Id. ¶ 41. The letter stated that an
investigation into the bullying allegations had been
completed, and that the allegations were determined to be
unfounded. Id. The letter also threatened to
disenroll the Pierces' children from school, and it
prohibited the Pierces from dropping off and picking up their
children except by using the drive-through procedure outlined
by the AKCS administration. Id.
April 28, 2014, Ms. Henderson approached Mrs. Pierce as she
was dropping off her children and insisted that she was not
permitted on school grounds. Id. ¶ 42. After
the encounter, Ms. Henderson sent an email to the school
board, with a copy to the Pierces, entitled “parental
refusal to follow administrative request.” Id.
Pierces were unable to communicate with anyone at AKCS
regarding their children's education. Id. ¶
43. When Mrs. Pierce sent her children's teachers
questions about standardized testing, her questions went
unanswered. Id. Mrs. Pierce sent an email to Ms.
VanDerMey complaining that it was not fair to the
Pierces' daughter for Ms. VanDerMey to cut off all
communication. Id. At the end of April, AKCS sent an
email to the parents of all children in Ms. VanDerMey's
class that Ms. VanDerMey was cutting off all communication
via email with parents. Id. ¶ 44. This closed
off all communication between Ms. VanDerMey and the Pierces;
by this time the Pierces were not allowed to write to Ms.
VanDerMey, nor were they allowed on campus. Id.
about April 10, 2014, the Pierces had requested that their
problems with the AKCS administration and staff be mediated.
Id. ¶ 45. By April 30, 2014, the Pierces had
not received a response regarding their request for mediation
so Mr. Pierce asked to speak at a governing council meeting
that was scheduled to take place the following day.
Id. Mr. Romero granted Mr. Pierce's request, but
told him that he would have to limit his remarks to three
minutes, and could not mention AKCS administrators or staff
members by name. Id. Later on April 30, 2014, Mr.
Romero offered the Pierces the opportunity to mediate their
grievances, and promised that the mediation would take place
the following week. Id. ¶ 46. The Pierces
agreed to the mediation, and “[a]s a conciliatory
measure, [they] decided not to air their grievance publicly
at the governing council meeting” the following day.
Id. On May 2, 2014, Mr. Pierce sent an email to Mr.
Romero inquiring when the mediation would take place.
Id. ¶ 47.
5, 2014, Mrs. Pierce and her son were waiting for her
daughter to be released from class on a curb outside of AKCS.
Id. ¶ 48. Mrs. Pierce's son was released
from school ten minutes before her daughter. Id. Ms.
Henderson approached Mrs. Pierce and informed her-in front of
another parent and child-that she was not permitted to wait
for her daughter on the curb. Id. Following this
incident, the Pierces sent another email to Mr. Romero
pleading with him to schedule the mediation so that they
could resolve the issues surrounding the Pierces' ban
from the AKCS campus. Id. ¶ 49. The same day,
Mrs. Pierce found a letter dated April 30, 2014 in her
daughter's school folder, written by an attorney, which
informed the Pierces that they were not permitted on the AKCS
campus. Id. ¶ 50. Mr. Pierce asked an APD
officer whether the attorney's letter prevented the
Pierces from dropping off and picking up their children from
school, and the officer informed them that they were entitled
to be on campus for that purpose. Id. ¶ 51. On
May 6, 2014, based on the APD officer's advice, Mr.
Pierce had an APD officer help him escort his children to
class. Id. ¶ 52. Mr. Pierce learned from the
APD officer that Ms. Chene wanted to disenroll his children
from AKCS. Id. ¶ 53.
19, 2014, Mr. Romero wrote Mr. Pierce to inform him that
“AKCS has agreed to have a special meeting on Wed., May
21, 2014 at 5:15 pm, ” and he asked Mr. Pierce to let
him know by noon the next day whether the Pierces would
attend. Id. ¶ 54. The Pierces attended the
meeting and did their best to talk to the governing council
about the issues they were having at AKCS. Id.
¶ 55. One of the consequences of their ban from the AKCS
campus was that their children could not participate in the
aftercare program. Id. No modification was made to
the ban that would permit their children to participate in
aftercare. Id. After the meeting, a governing
council representative informed Mr. Pierce that the ban would
remain in place on an interim basis, but that the Pierces
could drop off and pick up their children from the school
gate. Id. ¶ 56.
the summer of 2014, the Pierces filed formal complaints with
APS and the New Mexico Public Education Department (PED)
concerning the manner in which Ms. VanDerMey and Ms.
Henderson handled the Pierces' bullying reports.
Id. ¶ 57. On July 21, 2014, Mr. Romero sent the
Pierces a letter informing them that the governing council
had decided to keep all sanctions imposed by Ms. Chene in
place until further notice from the principal. Id.
¶ 58. Mr. Romero also told them to direct any questions
to Ms. Henderson, who was to become the new principal.
24, 2014, the Pierces met with Ms. Henderson and two other
AKCS school officials. Id. ¶ 61. Ms. Henderson
repeatedly mentioned the complaint the Pierces had filed
against her with PED. Id. But she also expressed a
willingness to drop the ban that prevented the Pierces from
entering the AKCS campus. Id. Ms. Henderson and the
Pierces scheduled a follow-up meeting for August 7, 2014
because Ms. Henderson did not know about the governing
board's final decision, and she wanted to speak to Mr.
Romero about it before getting back to them. Id.
Following the July 24 meeting, the Pierces dropped their PED
complaint against Ms. Henderson. Id.
end of July, 2014, Mrs. Pierce asked Ms. Henderson whether
Ms. VanDerMey still was employed at AKCS. Id. ¶
62. Ms. Henderson told Mrs. Pierce that Ms. VanDerMey was
still at the school. Id. The next day, Ms. Henderson
wrote to Mrs. Pierce to inform her that her inquiry as to Ms.
VanDerMey's employment status was inappropriate, and that
the sanctions against the Pierces would remain in effect.
early August, 2014, at the beginning of the new school year,
Ms. Henderson informed the Pierces that they were not allowed
onto campus to attend a “meet the teacher” event.
Id. ¶ 63. Despite this, the Pierces attended
the event without incident. Id. ¶ 65. The
Pierces also helped their children carry their new school
supplies to their classrooms. Id. ¶ 66.
Following these incidents, Ms. Henderson sent the Pierces a
message that informed them she would contact the police if
they came onto the AKCS campus. Id. ¶ 67. Ms.
Henderson nonetheless gave Mrs. Pierce permission to drop off
some homework her son had left at home at the school.
Id. ¶ 68. On August 6, 2014, the Pierces
attended an APS school board meeting and spoke publicly about
their experience at AKCS. Id. ¶ 69. The next
day, Ms. Henderson cancelled the August 7 meeting she
previously had scheduled with the Pierces. Id.
August 13 and 14, 2014, Mr. and Mrs. Pierce sent Ms.
Henderson separate emails requesting that she reschedule the
meeting that she had cancelled on August 7. Id.
¶ 73. Ms. Henderson responded to Mr. Pierce and asked
what the purpose of the meeting was. Id. Mr. Pierce
informed her that the Pierces wanted to discuss their ban
from the AKCS campus. Id. Ms. Henderson rescheduled
the meeting for August 18, 2014, but in doing so referenced
the Pierces' complaints to PED and APS and suggested that
her relationship with the Pierces “depended on her
knowing that the Pierces would not complain every time her
performance did not meet their expectations.”
Id. Ms. Henderson also accused Mr. Pierce of
“‘filming, and/or taking still pictures of [the
AKCS] community' and admonished him for the fabricated
conduct.” Id. ¶ 74. On the day the
meeting was rescheduled to take place, Ms. Henderson again
cancelled it. Id. ¶ 78.
August 15, 2014, Ms. VanDerMey filed an application for a
restraining order against the Pierces in the Bernalillo
County District Court. Id. ¶ 76. Ms. VanDerMey
filed the application despite the fact that the APD officer
had told Ms. VanDerMey in April that the Pierces' actions
did not constitute harassment, and despite the fact that
nothing of significance had happened since then. Id.
The only noteworthy event since April had been the
Pierces' filing of their formal complaints against Ms.
VanDerMey for the way she had handled their reports of
bullying. Id. The state district court denied Ms.
VanDerMey's request for a temporary restraining order the
same day she filed her application. Id. ¶ 77.
Five days later, an APD officer informed the Pierces that Ms.
VanDerMey had filed an application for a restraining order
against them. Id. ¶ 79.
August 21, 2014, the governing council reissued its decision
to ban the Pierces from the AKCS campus. Id. ¶
80. The same day, Mrs. Pierce wrote Mr. Romero and insisted
that he provide the Pierces the opportunity to mediate their
issues as he had promised at the end of April. Id.
¶ 81. Mr. Romero responded “by shutting down all
future communication with the governing council, ” and
by informing the Pierces that any further emails from the
Pierces to the governing council or any other AKCS staff or
employee would be viewed as cyber-bullying. Id.
response to this situation, the Pierces met with two APS
officials who offered to move the Pierces' children to
another school. Id. ¶ 82. The officials told
the Pierces that if they did not want to move their children
to another school, their case was closed. Id. ¶
83. APS could do nothing more. Id.
August 25, 2014, when Mrs. Pierce was dropping her children
off at school and/or picking them up, a woman who represented
herself as a police officer physically restrained Mrs. Pierce
and prevented her from picking her children up. Id.
¶¶ 85, 86. While Mrs. Pierce was being restrained,
she authorized another parent to retrieve her children.
Id. ¶ 87. But Ms. Henderson and the person who
had represented herself as a police officer refused to permit
the other parent to retrieve the Pierces' children.
Id. The children were held on the AKCS campus after
school and questioned without the Pierces' consent for
approximately 90 minutes. Id. ¶ 88. Mrs. Pierce
reported this incident to APD. Id. ¶ 86. The
Pierces believe that Ms. Henderson called APD just before
Mrs. Pierce arrived to pick her children up, and that Ms.
Henderson and the person who represented herself as a police
officer intended to cause a scene when Mrs. Pierce arrived.
Id. ¶ 89. The next day, on August 26, 2014, the
Pierces received a letter from Ms. Henderson informing them
that their children had been disenrolled from AKCS.
Id. ¶ 90.
August 27, 2014, the state district court held a hearing on
Ms. VanDerMey's application for a restraining order.
Id. ¶ 91. Ms. VanDerMey accused the Pierces of
making false accusations against her, but said she was
waiting for information from PED to know what those
accusations were. Id. In describing the accusations,
Ms. VanDerMey said,
Well, I know they've gone to my governing board, the APS
board meeting, and used my name. They have gone to the AP[S]
charter director and PED and have, you know put claims
against me in regards to how I handle myself as a teacher, in
regards to these bullying accusations.
Id. The testimony disclosed that Ms. VanDerMey felt
harassed and was concerned that the Pierces were inquiring
about her continued employment at AKCS because she was
worried that the Pierces would pursue sanctions against her,
not because of any fear for her safety. Id. Ms.
VanDerMey did not file her application for a restraining
order until after she knew that the Pierces had filed a PED
complaint against her. Id. On November 3, 2014, the
state district ...