The opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Lisa Marie Brady
v. Civil No. 16-cv-069-JD
Opinion No. 2016 DNH 204
School Board, Somersworth
School District, et al.
O R D E R
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
1 The claims against Jeanne Kincaid have been dismissed.
2 The Somersworth School District is also known as SAU 56.
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
3 Although Brady alleges that Mosca and MacDonald “were
directly responsible” for using grant money to make the film,
she does not provide facts to show how Mosca and MacDonald were
2
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
involved. Based on Brady’s other allegations, the film appears
to have been produced and sold by the University of New
Hampshire’s Institute on Disabilities, not by the defendants in
this case.
3
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
4 Chapter 141-H is titled “Genetic Testing,” and RSA 141-H:2
provides the conditions under which genetic testing may be done.
Mosca’s accusation against Brady arose from a dispute between
Brady and another staff member, during which Brady sent samples
of the staff member’s saliva for testing. Mosca accused Brady
of sharing the results of the test with other members of the
staff.
4
“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
5 Although Brady characterizes the defendants’ conduct as
criminal, that is simply her own legal conclusion that cannot be
considered for purposes of a motion for judgment on the
pleadings.
5
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 not appeal the decision as provided under RSA 189:14.
The Department of Labor held hearings on Brady’s
Whistleblower Protection Act claim in January and February of
2015. The hearing officer issued a decision on March 3, 2015,
finding that the school district had showed that the reasons for
transferring Brady in March of 2013 “were motivated by
legitimate, non-retaliatory reasons, and not because the
claimant filed two grievances” and that Brady had failed to
prove her claim. As a result, the hearing officer ruled that
the Whistleblower claim was invalid.
Brady filed her complaint in this case on February 22,
2016. In the statement of claim section of her complaint, Brady
identifies two claims: (1) a claim under 42 U.S.C. § 1983,
alleging deprivation of her First and Fourteenth Amendment
rights, and (2) a claim that the defendants violated the New
6
Hampshire Whistleblower Protection Act, RSA chapter 275-E.
Nevertheless, in the section of the complaint where she is
directed to list federal statutes, treaties, and provisions of
the constitution that are at issue, Brady lists nine possible
claims, many of which are based on state law. Those claims are
summarized as follows: § 1983 claim for violation of the right
to free speech, § 1983 claim for violation of the right to due
process, violation of the Whistleblower Protection Act,
violation of RSA 98-E:1, breach of her employment contract,
defamation, violation of RSA 641:1, and violation of RSA 638:14.
Discussion
The remaining defendants--the school district, Mosca, and
MacDonald--move for judgment on the pleadings, asserting that
Brady has failed to allege facts that support any of her claims
and has not alleged claims on which she is entitled to relief.6
In her objection, Brady accuses the defendants of “soiled
hands,” focuses on a statement in the defendants’ memorandum
about the parties “diverse positions,” provides a timeline of
6 The defendants also move to dismiss the claims for failure
to comply with the pleading requirements of Federal Rule of
Civil Procedure 8(a). Because that ground for dismissal is not
developed, it is not considered. See United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990); accord United States v. Nunez, -
-- F.3d ---, 2016 WL 6092692, at *4 n.4 (1st Cir. Oct. 19,
2016).
7
her interpretation of the events that preceded her termination,
and challenges the reasons for her transfer and termination.7
I. Section 1983 – First Amendment – Free Speech
Brady claims that her employment was terminated because she
expressed negative opinions about the “Axel” film, accused the
school district and others of grant fraud, and tried to protect
AC. She asserts that the termination violated her First
Amendment right to free speech.
The general rule that the First Amendment prohibits the
government from retaliating against individuals for speaking out
is qualified in the context of public employees. McGunigle v.
City of Quincy, --- F.3d ---, 2016 WL 4570420, at *7 (1st Cir.
Aug. 31, 2016). To succeed on a First Amendment claim, a public
employee must prove that (1) she was speaking as a citizen, not
an employee, “on a matter of public concern,” (2) her interests
as a citizen outweighed the interests of her employer to provide
public services efficiently, and (3) her speech was a
substantial or motivating factor in the employer’s action. Id.
Then, even if the employee can prove all three elements, the
Brady does not address her individual claims in her
7
objection or show that the allegations in her complaint support
her claims. In her surreply, Brady does respond to some of the
issues raised in the defendants’ motion and reply.
8
employer is not liable if it can show it would have taken the
same action if the employee had not spoken out. Id.
In this case, Brady’s allegations in her complaint, along
with the exhibits she submitted with the complaint, show that
Brady’s accusations of grant fraud, challenges to the Axel film,
and statements about AC were made while she was speaking in her
role as AC’s teacher. See Decotiis v. Whittemore, 635 F.3d 22,
34-35 (1st Cir. 2011) (describing factors to consider in
determining whether speech was as a citizen or employee). She
challenged the film as misrepresenting AC’s abilities, based on
her interaction with AC as his teacher and the information she
gained in that role. When she reported her accusations of grant
fraud, she identified herself as AC’s teacher and asserted that
she was defending her student. In addition, Brady provides no
“citizen analog” to show that her speech was the kind that would
be engaged in by private citizens.
Even if Brady met the first element, the second and third
elements and the last consideration are determinative. Brady
was terminated for a variety of reasons, including that her
reports to the media about the film and AC and her accusations
of grant fraud disclosed confidential information about AC,
which violated his rights to privacy, state and federal law, and
school district requirements. She also was terminated because
she secretly collected DNA samples from another staff member and
9
had the samples tested in violation of school policy and state
law. In addition, she was terminated because she abandoned her
job by never reporting to work at the school where she had been
transferred.
Given the multitude of legitimate reasons for terminating
her employment, Brady has not alleged facts that would show a
plausible claim that the defendants violated her First Amendment
right to free speech.
II. Section 1983 – Fourteenth Amendment
Brady alleges that she was terminated in violation of her
procedural and substantive due process rights under the
Fourteenth Amendment.8 “The Due Process Clause of the Fourteenth
Amendment provides that no state shall ‘deprive any person of
life, liberty, or property, without due process of law.’”
Garcia-Gonzalez v. Puig-Morales, 761 F.3d 81, 88 (1st Cir. 2014)
(quoting U.S. Const. amend. XIV, § 1). Due process includes
both procedural and substantive rights. Albright, 510 U.S. at
272.
8 Although Brady also alleges that the defendants violated
rights under § 1983, she is mistaken. Section 1983 does not
confer rights but instead provides a statutory means to assert a
violation of a federal right conferred elsewhere. Albright v.
Oliver, 510 U.S. 266, 271 (1994).
10
A. Procedural Due Process
“Procedural due process protects a right to a fundamentally
fair proceeding.” Teng v. Mukasey, 516 F.3d 12, 17 (1st Cir.
2008). To that end, procedural due process requires that a
party be afforded notice and an opportunity to be heard “at a
meaningful time and in a meaningful manner” before deprivation
of life, liberty, or property.9 Mathews v. Eldridge, 424 U.S.
319, 333 (1976). The requirements of due process, however, are
flexible and depend on the particular situation. Morrissey v.
Brewer, 408 U.S. 471, 481 (1972). In addition, “[p]re-
termination and post-termination proceedings are not evaluated
for constitutional adequacy in isolation from each other, a
reviewing court studies the totality of the process received in
light of the factual record to determine if the procedural due
process was sufficient.” Senra v. Town of Smithfield, 715 F.3d
34, 39 (1st Cir. 2013).
1. State Law Remedy
The defendants first argue that Brady’s § 1983 claim is
barred, based on Reid v. State of N.H., 56 F.3d 332 (1st Cir.
1995), because she had adequate remedies in state law.
Specifically, the defendants cite the hearing held on her
9 The court will assume that Brady had a constitutionally
protected property interest in her job. See Senra, 715 F.3d at
38.
11
termination before the Somersworth School Board, the
availability of an appeal of the School Board’s decision, and
her complaints before the Department of Education and Department
of Labor. In Reid, the court held that claims stating causes of
action under state law tort theories should be analyzed under
state law rather than § 1983. Id. at 336, n.8; see also Brown
v. Ferrara, 2012 WL 2237223, at *4 (D. Me. June 15, 2012). The
defendants enumerate the procedures available to Brady but do
not cite any state law causes of action that should be analyzed
in lieu of the § 1983 claim.10
Therefore, Reid is not dispositive of the procedural due
process claim in this case.
2. Process Provided
On the other hand, as the defendants explain, Brady was
afforded ample notice and multiple opportunities to be heard
before and after her termination. Brady also acknowledges her
opportunities to be heard on the variety of issues she raises
10 The defendants, who are represented by counsel, may have
intended to argue that even if the pre-termination process had
been insufficient, Brady had adequate post-termination remedies.
See, e.g., Hatfield v. McDonough, 407 F.3d 11, 21 (1st Cir.
2005). That theory, however, was not sufficiently developed to
allow review.
12
and on her termination.11 Brady appears to base her procedural
due process claim on a misunderstanding of events during the
termination proceeding.
Brady asserts repeatedly that she was criminally prosecuted
during the termination proceeding for violating RSA 141-H:2.
She is mistaken. No criminal prosecution occurred.12
RSA 189:13 provides that “[t]he school board may dismiss
any teacher found by them to be immoral, or who has not
satisfactorily maintained the competency standards established
by the school district, or one who does not conform to
regulations prescribed.” The statute also provides the process
for dismissal, that the teacher must be notified of the cause of
the dismissal before she is dismissed and she must be granted “a
full and fair hearing.” Id.
The School Board held a public hearing on the grounds
raised to support the superintendent’s recommendation that Brady
11 To the extent Brady contests the results of her complaints
to the New Hampshire Department of Education and the New
Hampshire Department of Labor, those proceedings are separate
from the termination proceeding in the school district.
Similarly, because her union is not a defendant here, her
complaints about union representation are not part of this suit.
12 Brady also alleges that the defendants violated RSA 638:14
through “Unlawful Simulation of the legal process (directly
resulting in a deprivation of due process rights: inadequate
constitutional procedure).” Brady has not shown that RSA 638:14
provides a private cause of action. See Order, June 13, 2016,
doc. no. 23, at *9. In addition, because she was not criminally
prosecuted, no due process violation occurred as she alleges.
13
be dismissed from her employment with the district pursuant to
RSA 189:13 and ED 302(h). Brady does not dispute that she was
notified of the grounds for her dismissal. The hearing
continued over three sessions on separate evenings. The Board
issued its decision to dismiss Brady on January 20, 2015, which
was based on four findings about Brady’s conduct.
The Board found that Brady had acted in an unprofessional
and unethical manner “when she sought to have bodily fluids of
another staff member tested for identification without the
knowledge or consent of the staff member and thereafter reported
the results of the test to others.” Complaint, Exhibit 21, Doc.
1-21. “The Board found (By a vote of 7 yes, 1 abstention) that
the behavior violated RSA 141-H:2.” Id. The Board concluded
that Brady’s conduct was “immoral” for purposes of RSA 189:13,
not that her conduct was criminal. Id.
Therefore, no procedural due process violation occurred.
B. Substantive Due Process
Substantive due process protects against certain
deprivations by the government regardless of whether the
procedures used were sufficient. Gonzalez-Fuentes v. Molina,
607 F.3d 864, 880 (1st Cir. 2010). To state a claim for
violation of the right to substantive due process, a plaintiff
must allege facts that show she “suffered the deprivation of an
14
established life, liberty, or property interest, and that such
deprivation occurred through governmental action that shocks the
conscience.” Najas Realty, LLC v. Seekonk Water District, 821
F.3d 134, 145 (1st Cir. 2016). Conscience shocking actions show
“an extreme lack of proportionality,” that is, a “violation[] of
personal rights so severe, so disproportionate to the need
presented, and so inspired by malice or sadism rather than a
merely careless or unwise excess of zeal that it amounted to a
brutal and inhumane abuse of power literally shocking to the
conscience.” Harron v. Town of Franklin, 660 F.3d 531, 536 (1st
Cir. 2011) (internal quotation marks omitted).
Brady makes no allegations in her complaint that are
specifically related to her claim of a violation of substantive
due process. She also does not address that claim in her
objection to the defendants’ motion for judgment on the
pleadings. Nothing alleged in the complaint rises to the level
of a substantive due process violation.
Therefore, the defendants are entitled to judgment on the
pleadings on Brady’s § 1983 claims, which are the claims
numbered 1, 3, 5, and 9 (to the extent claim 9 alleges a due
process violation) in the list provided in the complaint.
15
C. State Law Claims
The defendants also move for judgment on the pleadings on
Brady’s state law claims. All of Brady’s federal claims,
however, have been dismissed. The court declines to exercise
supplemental jurisdiction to consider the state law claims. See
28 U.S.C. § 1367(c). The state law claims are dismissed without
prejudice.
Conclusion
For the foregoing reasons, the defendants’ motion for
judgment (document no. 41) is granted. The state law claims are
dismissed without prejudice.
As all claims now have been resolved in favor of the
defendants, the clerk of court shall enter judgment accordingly
and close the case.
SO ORDERED.
__________________________
Joseph DiClerico, Jr.
United States District Judge
November 3, 2016
cc: Lisa Marie Brady, pro se
Demetrio F. Aspiras, III, Esq.
Brian J.S. Cullen, Esq.
Melissa A. Hewey, Esq.
16