United States District Court, D. Maine
ORDER ON MOTION TO DISMISS
Z. SINGAL, UNITED STATES DISTRICT JUDGE
the Court is Defendant’s Motion to Dismiss Counts III
and IV of Plaintiff’s Complaint. (ECF No. 7.) Having
reviewed the Motion, as well as the related memoranda filed
by both parties (ECF Nos. 9 & 10.), the Court hereby
GRANTS IN PART AND DENIES IN PART Defendant’s Motion to
Dismiss Counts III and IV.
survive a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), a complaint must contain sufficient
factual matter “to ‘state a claim to relief that
is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“In evaluating whether a complaint states a plausible
claim, we ‘perform [a] two-step analysis.”
Saldivar v. Racine, 818 F.3d 14, 18 (1st Cir. 2016)
(alteration in original) (quoting Cardigan Mtn. Sch. v.
N.H. Ins. Co., 787 F.3d 82, 84 (1st Cir. 2015)). First,
“the court must separate the complaint's factual
allegations (which must be accepted as true) from its
conclusory legal allegations (which need not be
credited).” Morales-Cruz v. Univ. of Puerto
Rico, 676 F.3d 220, 224 (1st Cir. 2012) (citing
Iqbal, 556 U.S. at 678). Second, the court
“must determine whether the ‘factual content
… allows the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.’” Id. at 224 (quoting
Iqbal, 556 U.S. at 678). “This standard is
‘not akin to a probability requirement, but it asks for
more than a sheer possibility that a defendant has acted
unlawfully.’” Saldivar, 818 F.3d at 18
(alteration in original) (quoting Iqbal, 556 U.S. at
evaluating the plausibility of a legal claim requires the
reviewing court to draw on its judicial experience and common
sense, the court may not disregard properly pled factual
allegations, even if it strikes a savvy judge that actual
proof of those facts is improbable.”
Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12
(1st Cir. 2011) (internal citations and quotations omitted).
Rather, “[t]he relevant inquiry focuses on the
reasonableness of the inference of liability” from the
facts. Id. at 13. With these principles in mind, the
Court now lays out the well-pled factual allegations.
August 2015, Plaintiff Shana Swenson began working for
Falmouth Public Schools (“the District”) as the
Response to Intervention (“RTI”) teacher for
grades three to five at Falmouth Elementary. (Compl. (ECF No.
1.) ¶¶ 14, 16.) Swenson worked continuously for the
District until January 2017, when she took maternity leave,
which lasted until August 2017. (Id. ¶¶
17, 18.) During the first two years of her employment with
the District, Swenson was never counseled or disciplined for
performance, and she received praise from Falmouth
Elementary’s assistant principal after classroom
observations during the 2015-2016 school year. (Id.
before Swenson returned from maternity leave, Gloria Noyes,
Principal of Falmouth Elementary, completed Swenson’s
2016-2017 “Probationary Teacher Summative
Evaluation.” (Id. ¶ 20.) Noyes rated
Swenson “Highly Effective” in 25 categories,
“Effective” in 31 categories, and
“Improvement Necessary” in 0 categories.
(Id. ¶ 20.) Noyes indicated that, due to
Swenson’s maternity leave, it would have been advisable
to keep her on the second year of probation. (Id.
¶ 22.) But the District ultimately advanced Swenson to
her third year of probation during the 2017-2018 school year.
(Id. ¶ 23.)
her return from maternity leave, Swenson requested to take
approximately three breaks during the day to pump breastmilk
and/or nurse her child, who was being cared for at Falmouth
Elementary’s onsite daycare program. (Id.
¶ 26.) Swenson distributed a schedule of her
pumping/nursing breaks to her RTI team.
(Id.¶¶ 28, 29.) The schedule provided for
breaks of about 20 minutes every two to three hours.
(Id. ¶ 28.) Shortly after Swenson distributed
the schedule, Noyes asked her if she could take two
pumping/nursing breaks per day and take them during her lunch
and planning times. (Id. ¶ 29.) Swenson
responded that the three breaks she proposed in her schedule
were necessary for her health and the proper care of her
child. (Id. ¶ 30.) She proceeded to follow her
proposed three-break schedule. (Id. ¶ 31.)
RTI had a student case load, Swenson received multiple
inquiries from her team members about whether she intended to
continue pumping and nursing her child once RTI with students
commenced. (Id. ¶ 32.) Swenson told team
members that she would be flexible and try to schedule her
breaks around the student schedule, but she had a legal right
to take breaks during the day to express breast milk.
(Id. ¶ 33.) Swenson felt harassed, berated, and
discriminated against by her team members’ questions,
which continued after she responded to them. (Id.
¶¶ 33, 34, 35.)
reported her concerns about her team members’ comments
to Noyes, who met with Swenson and her team to discuss the
matter on October 2, 2017. (Id. ¶¶ 35,
36.) In the meeting, Noyes informed everyone that Swenson had
a legal right to take pumping/nursing breaks throughout the
workday and instructed that negative comments regarding these
breaks cease. (Id. ¶ 37.) However,
Swenson’s team members continued to make comments to
Swenson about her pumping/nursing schedule, and Swenson felt
these comments were discriminatory and harassing.
(Id. ¶¶ 39, 40.) Later in October, she
reported the continuing comments to Noyes, who said she would
investigate Swenson’s allegations. (Id.
¶¶ 41, 42.)
November 2, 2017, Noyes informed Swenson that her
investigation into Swenson’s complaint had revealed
concerns about Swenson’s performance, and that Noyes
would conduct a performance review with Swenson the next day.
(Id. ¶¶ 45, 46.) At this performance
review, Swenson expressed concern that the review was
retaliation for her complaints of discrimination.
(Id. ¶ 48.) Noyes replied that the complaints
were a separate matter. (Id. ¶¶ 48, 49.)
Noyes attempted to place Swenson on an Action Plan, but
Swenson’s union contested the Plan since Swenson lacked
prior history of poor performance. (Id. ¶¶
51, 52.) Swenson alleges she was never formally issued the
Plan. (Id. ¶ 52.) After the performance review,
Swenson began receiving negative comments in classroom
observations, was issued a coaching document, and received
her first negative summative evaluation, in which most of her
“Highly Efficient” and “Efficient”
ratings from earlier years were downgraded to
“Improvement Necessary.” (Id. ¶
spring 2018, Noyes informed Swenson that she was not
recommending her for a continuing contract in the 2018-2019
school year. (Id. ¶ 54.) On May 9, 2018,
Swenson met with the District’s superintendent and
expressed her belief that Noyes’s decision not to
recommend her was retaliation for reporting concerns of
discrimination and retaliation. (Id. ¶ 55.) Two
days later, Swenson received a letter from the superintendent
that formally approved Noyes’s recommendation and
confirmed Swenson’s contract with the District would
not be renewed for the 2018-2019 school year. (Id.