Aguirre v. Pueblo Sch. Dist., Civil Action 21-cv-02174-PAB-MDB

• Court: United States District Courts. 10th Circuit. United States District Court of Colorado
• Writing for the Court: PHILP A. BRMMR, Chief United States District Judge
• Parties: ARLEEN AGUIRRE, Plaintiff, v. PUEBLO SCHOOL DISTRICT No. 60, Defendant.
• Docket Number: Civil Action 21-cv-02174-PAB-MDB
• Decision Date: 08 March 2023

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ARLEEN AGUIRRE, Plaintiff,
v.
PUEBLO SCHOOL DISTRICT No. 60, Defendant.

Civil Action No. 21-cv-02174-PAB-MDB

United States District Court, D. Colorado

March 8, 2023

ORDER

PHILP A. BRMMR, Chief United States District Judge

This matter is before the Court on defendant's Partial Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6). Docket No. 21. Plaintiff filed a response opposing defendant's motion, Docket No. 31, and defendant filed a reply. Docket No. 32. The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367.

I. BACKGROUND^[1]

Plaintiff Arlene Aguirre, a Latinx woman, taught Spanish at Central High School (“Central”) for approximately eleven years. Docket No. 20 at 2, 12, ¶¶ 8, 55. Defendant Pueblo School District No. 60 (“the District”) is a public school district.^[2]Id. At 2, ¶ 5. Until the end of the 2019-2020 school year, Central offered students in-person

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instruction in Spanish, French, and Italian. Id. at 5, ¶ 16. The French and Italian teachers at Central are “Anglo.”^[3] Id. at 8, ¶ 29. At the beginning of the 2019-2020 school year, 135 students elected to enroll in Spanish, 98 enrolled in Italian, and 73 enrolled in French. Id. at 5, ¶ 16. Central serves a predominantly Hispanic population. Id. at 5, ¶ 15.

Teachers at Central are evaluated based on Quality Standards. Id. at 3, ¶ 10. Central's principal Destin Mehess became plaintiff's evaluator in 2015 and provided her annual ratings for each Quality Standard. Id. In the 2015-2016 and 2017-2018 school years, plaintiff received “Accomplished” ratings for two Quality Standards. Id. In the 2016-2017 school year, plaintiff received one rating of “Accomplished” and one rating of “Exemplary,” which is the highest rating on the Quality Standards. Id. In the 2018-2019 school year, plaintiff received “Proficient” and “Partially Proficient” ratings for the same Quality Standards. Id. at 3-4, ¶ 10.

Before plaintiff received her annual rating for the 2018-2019 school year, she sent several emails to principal Mehess and other District administrators attempting to curb “racially motivated, hostile attitudes and actions at Central.” Id. at 4, ¶ 11. On May 2, 2018, plaintiff emailed Principal Mehess to report actions by one of Central's assistant principals. Id. On November 6, 2018, plaintiff emailed Principal Mehess and other District administrators about another incident with the same assistant principal. Id. On January 28, 2019, plaintiff emailed Principal Mehess to report that, at a school wide assembly, a student master of ceremonies used the term “Greaser,” which is offensive

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and derogatory to Latino people. Id. Principal Mehess and the other administrators that were emailed failed to take action to address plaintiff's concerns. Id., ¶ 12.

After plaintiff received her 2018-2019 evaluation, she filed a grievance challenging the lower ratings she received. Id. at 5, ¶ 13. The District agreed to amend plaintiff's evaluation to raise both challenged ratings to Accomplished. Id., ¶ 14.

The Pueblo Education Association (“PEA”) is the exclusive representative of the District's teachers for the purpose of bargaining terms and conditions of employment. Id., ¶ 17. The PEA and the District entered into a collective bargaining agreement for the 2019-2020 school year. Id., ¶ 18. Colo. Rev. Stat. § 22-63-101 allows a school district to invoke “displacement” under which a teacher is removed from her position at a school and must seek a position at a new school. Id. at 6, ¶ 21. Displacement can result in an indefinite unpaid leave of absence if a displaced teacher cannot find a new position. Id. PEA and the District reached an agreement that established a two-step process for the District to notify both PEA and an affected teacher of a displacement. Id. at 6-7, ¶ 25. First, if the District determines that a displacement is necessary, the principal of the affected school shall issue a statement to the superintendent that shall be made available to the affected teacher and the Association [PEA] .... Second, if the Superintendent agrees with the Principal's statement, the Superintendent or her designee will provide written notice of displacement to all displaced teachers.” Id. at 7, ¶ 25 (citations, quotations, and alterations omitted).

In or about March 2020, Principal Mehess met with Executive Director of Human Resources Eric DeCesaro to discuss Central's staffing plan for the following school year. Id., ¶ 28. Principal Mehess proposed eliminating in-person Spanish instruction at

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Central. Id. “On April 2, 2020, Principal Mehess informed Ms. Aguirre that Central would ‘not be offering Spanish [in 2020-21].'” Id. at 8, ¶ 30. That same day, Principal Mehess emailed Mr. DeCesaro and other District administrators, excluding the superintendent, “to let them know she had informed Ms. Aguirre that she was being displaced and that someone from the Human Resources department would be in touch.” Id. Mr. DeCesaro prepared a formal letter notifying plaintiff of her displacement. Id., ¶ 31. Before April 2, 2020, neither PEA nor plaintiff was given notice of a contemplated displacement at Central. Id., ¶ 32.

PEA filed a grievance alleging violations of the collective bargaining agreement including that plaintiff's displacement was a disguised disciplinary action and that Central did not provide proper notice of plaintiff's displacement. Id. at 8-9, ¶ 34. The human resources director for the District issued a final internal “Level 2” decision denying the grievance. Id. at 9, ¶ 35. The decision ruled that plaintiff was not subject to disguised discipline and that the notice that was given complied with the collective bargaining agreement. Id. The collective bargaining agreement allows PEA to request arbitration if it disagrees with a Level 2 decision. Id., ¶ 36. The results of arbitration are advisory unless PEA and the Board^[4]agree that the results are binding. Id.

PEA made a demand for arbitration on the decision on its grievance. Id., ¶ 37. PEA and the Board did not agree to a binding arbitration result. Id., ¶ 36. On November 6, 2020, an arbitration hearing was held, and on December 1, 2020 the arbitrator issued

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his decision recommending that the Board deny PEA's grievance. Id., ¶¶ 38-39. The issues considered in the decision were “a) whether Mehess complied with the notice requirements of the CBA, . . . b) whether Aguirre's displacement was a disguised disciplinary action; and c) whether the failure to provide Aguirre with a consent hire position in another school in the District was a disguised disciplinary action.” Id., ¶ 40. The decision did not consider whether plaintiff's displacement was an appropriate decision as a matter of educational policy. Id.

On December 8, 2020, the Board accepted the abitrator's decision. Id. at 10, ¶ 41. The Board did not serve plaintiff with a notice of displacement. Id., ¶ 42. A city councilperson for Pueblo, Ray Aguilera, ran into a Board member, Barbara Clementi, and expressed his opposition to the elimination of the Spanish program at Central. Id., ¶ 43. Clementi told Aguilera that Spanish may be reinstated at Central with another teacher. Id.

As a result of her displacement, plaintiff was placed in a one-year position in the District at South High School. Id., ¶ 45. Plaintiff interviewed for a permanent position at South High School and was not selected. Id., ¶ 46. Plaintiff was then placed on indefinite unpaid leave by the District. Id., ¶ 47.

II. LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege enough factual matter that, taken as true, makes the plaintiff's “claim to relief . . . plausible on its face.” Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “The ‘plausibility' standard requires that relief must plausibly follow from the facts alleged, not that the facts themselves be

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plausible.” RE/MAX, LLC v. Quicken Loans Inc., 295 F.Supp.3d 1163, 1168 (D. Colo. 2018) (citing Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008)). Generally, “[s]pecific facts are not necessary; the statement need only ‘give the defendant fair notice of what the claim is and the grounds upon which it rests.'” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Twombly, 550 U.S. at 555) (alterations omitted). However, a plaintiff still must provide “supporting factual averments” with his allegations. Cory v. Allstate Ins., 583 F.3d 1240, 1244 (10th Cir. 2009) (“[C]onclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based.” (citation omitted)). Otherwise, the court need not accept conclusory allegations. Moffet v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1232 (10th Cir. 2002). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quotations and alterations omitted); see also Khalik, 671 F.3d at 1190 (“A plaintiff must nudge [his] claims across the line from conceivable to plausible in order to survive a motion to dismiss.” (quoting Twombly, 550 U.S. at 570)). If a complaint's allegations are “so general that they encompass a wide swath of conduct, much of it innocent,” then plaintiff has not stated a plausible claim. Khalik, 671 F.3d at 1191 (quotations omitted). Thus, even though modern rules of pleading are somewhat forgiving, “a complaint still must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.” Bryson, 534 F.3d at 1286 (alterations omitted).

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III. ANALYSIS

On August 10, 2021, plaintiff filed suit against the District. Docket No. 1. The operative complaint...