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Pierce v. Chene

United States District Court, D. New Mexico

February 1, 2017

VERONICA PIERCE AND FLINT PIERCE, Plaintiffs,
v.
CONNIE CHENE, SHAY VANDERMEY, TAMARA HENDERSON, CARLOS ROMERO, all in their individual capacities, AND THE GOVERNING COUNCIL FOR ALICE KING COMMUNITY SCHOOL, Defendants.

          MEMORANDUM OPINION AND ORDER

          LAURA FASHING UNITED STATES MAGISTRATE JUDGE.

         This 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 Contract Claim.

         I. Factual Background

         In 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 the following:

         Shay VanDerMey was a teacher at AKCS. Doc. 10 at 2, ¶ 5.[1] 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, [2] and defendant Carlos Romero was the president of the AKCS Governing Council. Id. at 2, ¶¶ 4, 6, 7.

         In 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.

         Later 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.

         Mrs. 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.” Id.

         In 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 performance. Id.

         After 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. ¶ 21.

         Also on 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.

         On 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.

         On 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. ¶ 30.

         Later 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. ¶ 35.

         The 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.

         On 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.

         On 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.

         The 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.

         Since 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 public[]ly 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.

         On May 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.

         On May 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.

         During 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. Id.

         On July 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.

         At the 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. Id.

         In 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. ¶ 70.

         On 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.

         On 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.

         On 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.

         In 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.

         On 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.

         On 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 ...


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