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Swenson v. Falmouth Public Schools

United States District Court, D. Maine

September 27, 2019




         Before 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.


         To 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 678).

         “Although 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.


         In 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. ¶ 19.)

         Shortly 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.)

         Upon 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.)

         Before 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.)

         Swenson 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.)

         On 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. ¶ 53.)

         In 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. ¶ 57.)

         III. ...

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