Neri v. Bd. of Educ.

• Decision Date: 01 September 2022
• Docket Number: CIV 19-8 JCH/SCY
• Parties: DANIELLE L. NERI, Plaintiff, v. BOARD OF EDUCATION FOR ALBUQUERQUE PUBLIC SCHOOLS and CYNTHIA HOPPMAN, Defendants.
• Court: U.S. District Court — District of New Mexico

DANIELLE L. NERI, Plaintiff, v. BOARD OF EDUCATION FOR ALBUQUERQUE PUBLIC SCHOOLS and CYNTHIA HOPPMAN, Defendants.

No. CIV 19-8 JCH/SCY

United States District Court, D. New Mexico

September 1, 2022

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

STEVEN C. YARBROUGH UNITED STATES MAGISTRATE JUDGE

Plaintiff Danielle Neri quit her teaching job with Atrisco Heritage Academy (part of Albuquerque Public Schools) after an assistant principal, Defendant Cynthia Hoppman, moved her from an IEP position to a math teaching position. Plaintiff has long suffered from post-traumatic stress syndrome (“PTSD”) and, although she makes several arguments, the gravamen of her lawsuit is that, in violation of the American with Disabilities Act and the New Mexico Human Rights Act, Defendants took adverse action against her because of her disability. After this Court granted summary judgment in Defendants' favor on all Plaintiff's federal claims and remanded her state-law claims, she appealed to the Tenth Circuit. The Tenth Circuit affirmed in part and reversed in part, remanding some federal claims back to this Court. See Neri v. Bd. of Educ. for the Albuquerque Pub. Schs., 860 Fed.Appx. 556 (10th Cir. 2021). Upon remand, the parties filed a number of motions (1) Plaintiff's Motion to Reinstate her Federal Discrimination Claims, Doc. 140; (2) Defendants' Motion to Dismiss or in the Alternative Motion for Summary Judgment on Purported Retaliation Claim(s), Doc. 154; (3) Defendants' Motion for Summary Judgment on State Claims and Damages, Doc. 168; (4) Defendants' Motion for Reconsideration, Doc. 169; (5) Plaintiff's Motion to Strike Defendants' Motions for Summary Judgments, Motion to Dismiss and Motion for Reconsideration due to Non-Compliance with Local Civil Rules of the United States District Court for the District of New Mexico (Doc. 183); (6) Plaintiff's Motion for Expedited Order for Defendants to File Other Relevant Parts of Deposition (Doc. 184); and (7) Plaintiff's Motion for Leave to File Surreply to Defendants' Supplemental Briefing in Support of Defendants' Motion for Summary Judgment on State Claims and Damages (Doc. 196). Additionally, the parties filed two sets of supplemental briefing: Plaintiff's Memorandum in Support of her Motion to Reinstate Federal Discrimination Claims with Particular Reference to her Retaliation Claim (Doc. 153) and Defendants' Supplemental Briefing in Support of Defendants' Motion for Summary Judgment on State Claims and Damages (Doc. 168).

After addressing each of these motions, I ultimately recommend that the Court find the following claims are no longer viable Plaintiff's claims under the ADA and NMHRA for alleged discrimination based on actual impairment or record of impairment; hostile work environment; constructive discharge failure to accommodate; and FMLA and disability retaliation claims.^[1]This leaves on track for trial Plaintiff's claims for alleged discrimination under the ADA and the NMHRA based on a demotion because APS regarded Plaintiff as being disabled. For the remaining claims, I recommend that the Court find Plaintiff is unable to recover back and front pay and compensatory damages for her auto loan, moving expenses, and future pecuniary losses, but may seek compensatory damages for emotional distress.

FACTUAL BACKGROUND

The motions presently before the Court are a mix of summary judgment, motions to dismiss, and other types of motions relating to several different claims brought by Plaintiff. To the extent resolution of a motion is dependent on facts the Court must find, I will set forth the facts I recommend the Court find specific to each motion when I analyze that specific motion (as different levels of deference that apply to different motions could affect factual findings). For context, however, I recite from the Tenth Circuit's Order the following factual background:

Mrs. Neri worked for APS as a special education math teacher for several years. Starting in the 2013-2014 school year, however, she was chosen to fill a new position as the Individualized Educational Program (IEP) Teacher at a high school in Albuquerque with a large number of special-education students. As the IEP Teacher, her duties included ensuring that the school met federal standards for special education; creating procedures for IEPs; training teachers on IEP requirements; and facilitating and conducting meetings with students, parents, teachers, and service providers regarding students' IEPs. Mrs. Neri's first two school years as the IEP Teacher were uneventful.

Things changed in the 2015-2016 school year. Mrs. Neri asserts that she “was under a yearlong attack, a group hunt orchestrated by” her supervisor, Ms. Hoppman. Aplt. Opening Br. at 18. “This attack was not so obvious to the observer, but it was to Mrs. Neri.” Id. “Ms. Hoppman would change the requirements of the IEP teacher position[,] even procedures they had come up with, that had been proven to work.” Id. (footnote omitted). “Ms. Hoppman sought to create a false paper trail showing Mrs. Neri was not doing her job” by sending e-mail messages inquiring as to the status of various IEPs. Id. One time, she sent an e-mail inquiring as to Mrs. Neri's whereabouts, after the end of the duty day.

On April 14, 2016, Mrs. Neri led an IEP meeting for a student whose parent did not speak English. Daniel Kegler, a teacher attending the meeting, had not arranged for an interpreter to attend. When Mrs. Neri realized there was no interpreter, she cancelled the meeting. Mr. Kegler became frustrated. As Mrs. Neri describes, he “stood up with such force that his chair flew into the wall behind him, he then grabbed it and slammed it into the table, then slammed his laptop shut with his hand about 18 inches from Mrs. Neri's face.” Id. at 19-20. The April 14 incident frightened Mrs. Neri and triggered her Post-Traumatic Stress Disorder (PTSD). She told Ms. Hoppman of the incident, her feeling that Mr. Kegler had assaulted her, and that he triggered her PTSD. Ms. Hoppman interviewed other staff members who had been in the meeting, who reported that Mr. Kegler had not been violent. Ms. Hoppman told Mrs. Neri that she did not think the incident was a big deal.

The next day, April 15, Mrs. Neri had another IEP meeting involving Mr. Kegler. Ms. Hoppman sent a head teacher to attend the meeting with Mr. Kegler. Initially Mrs. Neri thought the head teacher was there to support her in case Mr. Kegler again lashed out. But during the meeting, she learned that Ms. Hoppman had sent the head teacher to support Mr. Kegler because she had just given him some bad news. Mrs. Neri believed that Ms. Hoppman had minimized her feelings about the April 14 incident, and she felt betrayed, unsupported, and unsafe.

Mrs. Neri took leave under the Family and Medical Leave Act (FMLA) from April 26 to May 9, 2016. Her leave was supported by a note from her therapist, licensed clinical social worker Billie Poteet. When Mrs. Neri returned to work, with only nine days left in the school year, she attempted to meet with Ms.Hoppman to discuss potential accommodations for her PTSD, but Ms. Hoppman avoided her.

On May 23, 2016, Ms. Hoppman conducted Mrs. Neri's year-end evaluation. Mrs. Neri felt that the evaluation was going well, until Ms. Hoppman told her that she (Ms. Hoppman) was transferring her (Mrs. Neri) to a special education math teacher position because Mrs. Neri “could not handle the contention of that room” and Ms. Hoppman “didn't want to trigger [Mrs. Neri] again.” R. Vol. 1 at 268. Mrs. Neri considered the transfer to be a demotion. That night, she sent Ms. Hoppman an e-mail protesting the decision. Ms. Hoppman responded by identifying several areas in which Mrs. Neri had performed deficiently as the IEP Teacher during the 2015-16 school year, allegedly leading to her decision to transfer Mrs. Neri. She also stated, “[o]n a personal level, I am concerned about your health. I have seen your reactions to stressful situations become more apparent and frequent. The comments you made in your email exhibit a paranoia that you are being isolated and targeted.” Id. Vol. 2 at 79.

Mrs. Neri took an unpaid personal leave of absence for the 2016-2017 school year. On March 8, 2017, she submitted her resignation to APS.

Neri, 860 Fed.Appx. at 559-60.

PROCEDURAL HISTORY

Plaintiff filed her Complaint for Employment Discrimination on November 9, 2018 in state court. Doc. 1-1 at 8. Defendants Board of Education for the Albuquerque Public Schools (“APS”) and Cynthia Hoppman^[2] removed this action to federal court on January 7, 2019. Doc. 1. Plaintiff's Operative Complaint-the Third Amended Complaint-alleges violations under the Americans with Disabilities Act (“ADA”) and the New Mexico Human Rights Act (“NMHRA”) for discrimination based on her position transfer, hostile work environment, constructive discharge, failure to accommodate, and possibly retaliation.^[3] Doc. 38.

After conducting discovery, Defendants moved for summary judgment on all Plaintiff's claims. Doc. 68. I entered a Proposed Findings and Recommended Disposition (“PFRD”) on April 22, 2020, recommending that the Court grant summary judgment as to all Plaintiff's federal claims and decline supplemental jurisdiction over her state-law claims, remanding them to state court. Doc. 110. Over objection from Plaintiff, the presiding judge adopted the PFRD. Doc. 119. Plaintiff appealed, and the Tenth Circuit affirmed in part and reversed and remanded in part. Doc. 138.

The Tenth Circuit first looked at whether Plaintiff has a disability as defined by the ADA, and held that Plaintiff had not established that she has an actual impairment. Neri, 860 Fed.Appx. at 563. The Tenth Circuit however, found that a genuine issue of material fact exists as...