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Brady v. School Board

United States District Court, D. New Hampshire

November 3, 2016

Lisa Marie Brady
v.
School Board, Somersworth School District, et al. Opinion No. 2016 DNH 204

          Lisa Marie Brady, pro se

          Demetrio F. Aspiras, III, Esq.

          Brian J.S. Cullen, Esq.

          Melissa A. Hewey, Esq.

          ORDER

          Joseph DiClerico, Jr. United States District Judge

         Lisa Marie Brady, proceeding pro se, brings federal and state claims against the School Board of the Somersworth School District; Jeni Mosca, the Superintendent of Schools; Pamela MacDonald, the Special Education Director; and Jeanne Kincaid, counsel for the school district, arising from the termination of Brady's employment.[1] The School Board, Mosca, and MacDonald move for judgment on the pleadings.[2] Brady objects.

         Standard of Review

          “After the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). The court “take[s] all well-pleaded facts in the light most favorable to the non-moving party and draw[s] all reasonable inferences in that party's favor.” Najas Realty, LLC v. Seekonk Water Dist., 821 F.3d 134, 140 (1st Cir. 2016). Only factual allegations are credited, however, not legal conclusions or other conclusory statements that are not facts. Id. To survive the motion, the plaintiff's complaint must allege sufficient facts “to state a claim to relief that is plausible on its face.” Downing v. Glove Direct LLC, 682 F.3d 18, 22 (1st Cir. 2012) (internal quotation marks omitted).

         Background

         As the court noted in the order granting Jeanne Kincaid's motion to dismiss, the allegations in the complaint are not presented in a coherent sequential narrative but instead state legal conclusions with reference to documents and data submitted with the complaint. Brady apparently copied a form and includes the instructions from the form in her complaint. Brady was given an opportunity to amend the complaint but did not do so.

         Brady is a licensed special education teacher who was tenured in the Somersworth School District and was working at the Somersworth Middle School. While Brady was working there, the University of New Hampshire's Institute on Disability produced a film, called “Axel”, about a special needs student in the Somersworth School District who is referred to as “AC”.[3] The film was funded by an educational grant and portrays AC as being able to function through “facilitated communication” at grade level and with the ability to be college bound. Brady was part of AC's team at the middle school and disagreed with the methods that were used and shown in the film and with the suggestion that AC could function at the level portrayed.

         On September 3, 2012, Brady sent a grievance to Mosca and other school district employees against MacDonald, stating Brady's view that MacDonald had not properly considered Brady's concerns about the educational plan for AC and had created a hostile work environment for her. At the suggestion of the assistant principal, Brady withdrew the grievance.

         Brady did not agree with the educational plan for AC, however, and did not comply with directions she was given. In March of 2013, Pamela MacDonald put a warning in Brady's employee file. Brady disputed the warning with a written rebuttal and a grievance but later withdrew the grievance.

         In December of 2013, Brady had problems with another staff member who, Brady suspected, was abusing prescription pain medication. When Brady suspected that the staff member had bitten Brady's school identification badge, which left saliva on the badge, Brady sent that sample along with a known sample of the staff member's saliva for DNA testing to prove who had bitten the badge. The result was inconclusive. The relationship between Brady and the staff member deteriorated, and the school administrators tried to mediate the situation.

         In March of 2014, Mosca issued a warning to Brady about her actions, including a statement that Brady had violated the staff member's privacy and RSA 141-H:2.[4] Brady and the other staff member were transferred to different schools.

         Brady felt that her transfer from the middle school to an elementary school was a demotion. She did not report to work at the new school. She was granted medical leave but never returned to work. Brady's appeal of the transfer decision to the New Hampshire Board of Education was stayed because of pending dismissal proceedings.

         Beginning in the summer of 2014, Brady brought charges of educational grant fraud to the New Hampshire Commissioner of Education against Mosca, MacDonald, and others, based on the “Axel” film.[5] She also included charges of grant fraud in a complaint filed with the New Hampshire Department of Labor that alleged a violation of the Whistleblower Protection Act and in a complaint filed with the United States Office of Inspector General, along with other agencies. Each agency informed her that her charges were unfounded. Dissatisfied with the responses to her complaints, Brady made statements to the media about her charges of grant fraud and disclosed confidential information about AC.

         Mosca hired an investigator to address the issues of Brady's complaints and activities. The investigator issued a report on December 4, 2014, with findings that Brady had violated the Family Educational and Privacy Act and the Individuals with Disabilities Education Act, had “behaved in a non-professional manner, in violation of the Somersworth Staff ethics policy, ” and was insubordinate to the superintendent. Mosca recommended that Brady be terminated.

         A hearing was held before the school board over a period of three days in January of 2015. The school board hired an attorney, John Teague, to act as a hearing officer and to advise the school board. After the hearing, the school board found that Brady had acted in an unprofessional manner by having a staff member's DNA tested, that her communications with parties outside the school district about AC violated federal law and school district policies, and that Brady abandoned her position at the elementary school after her transfer there. Brady was terminated on January 20, 2015.

         After Brady was terminated, the Board of Education considered her appeal of the transfer decision. The Board concluded that it lacked jurisdiction to consider the appeal. Brady did ...


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