Brodeur v. Claremont School District

2009 DNH 082

• Court: District Court, D. New Hampshire
• Decided: June 12, 2009
• Docket: CV-07-206-JL
• Status: Published

Opinion

Brodeur v . Claremont School District CV-07-206-JL 06/12/09 P UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Nicole Brodeur, et a l .

v. Civil N o . 07-cv-206-JL Opinion N o . 2009 DNH 082 Claremont School District et a l .

O R D E R

Elaine and William Brodeur, and their daughter, Nicole, have

sued the Claremont School District, the principal of its high

school, and a former teacher there, alleging violations of Title

IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a), and

a number of state law causes of action arising out of certain

offensive comments the teacher made to Nicole, and their

aftermath. The defendants have moved for summary judgment on all

of the plaintiffs’ claims.

This court has subject-matter jurisdiction under 28 U.S.C.

§§ 1331 (federal question) and 1367 (supplemental jurisdiction).

After hearing oral argument, and for the following reasons, the

defendants’ motions for summary judgment are granted in part and

denied in part.

I. Applicable legal standard

Summary judgment is appropriate where the “pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.”

Fed. R. Civ. P. 56(c). In making this determination, the “court

must scrutinize the record in the light most flattering to the

party opposing the motion, indulging all reasonable inferences in

that party’s favor.” Mulvihill v . Top-Flite Golf Co., 335 F.3d

1 5 , 19 (1st Cir. 2003).

To comprise part of the record on summary judgment, however,

proffered testimony “must be made on personal knowledge, set out

matters that would be admissible in evidence, and show that the

affiant is competent to testify on the matters stated.” Fed. R.

Civ. P. 56(e)(1). The defendants, in their reply memorandum,

protest that some of the testimony relied on by the plaintiffs in

opposing summary judgment runs afoul of this rule, because it is

hearsay. Specifically, the defendants object to the Brodeurs’

testimony relating what others, including Nicole and one of her

classmates, told them; testimony by Nicole’s English teacher

relating what others told him about Grumman’s behavior; and an

unauthenticated record from a counselor who treated Nicole.

“It is black-letter law that hearsay evidence cannot be

considered on summary judgment.” Davila v . Corporación De P.R.

Para La Difusión Pública, 498 F.3d 9, 17 (1st Cir. 2007). Much

of the evidence to which the defendants object appears to be

hearsay, i.e., out-of-court statements offered to prove the truth

of the matters asserted, that does not readily fit within any of

2 the recognized exceptions. And the plaintiffs have not carried

their burden to show that any of those exceptions apply, see

United States v . Gaines, 170 F.3d 7 2 , 79 (1st Cir. 1999), o r ,

indeed, made any response at all to the defendants’ objections.

In ruling on summary judgment, then, the court has not considered

the hearsay statements proffered by the plaintiffs and

specifically challenged as hearsay by the defendants. See Perez

v . Volvo Car Corp., 247 F.3d 303, 314-15 (1st Cir. 2001).

II. Background

A. The harassing remarks

At the start of Nicole’s sophomore year at Stevens High

School in Claremont, when she was 15 years old, defendant Gene

Grumman was her biology teacher. Grumman, himself 55 years old

at the time, had been teaching at Stevens for the past 25 years.

The biology course lasted one semester, from September 2005 until

mid-January 2006. Within the first two months of the school

year, Grumman made several remarks about Nicole’s buttocks.

Nicole described these remarks as “weird statements” or “sick

comments,” about five or six in all.

In one, Grumman was explaining the concept of the genetic

code through an analogy in which Nicole was in love with a boy in

the class, but had been locked in her room by her parents as

punishment for seeing him. Grumman asked the class to suggest

3 ways that Nicole could still communicate with the boy, leading

one student to suggest that she climb out the window. Grumman

said in response, according to Nicole’s contemporaneous account,

“with that huge rubus of hers and those hips there’s no way she

would fit. And then . . . she would be so grounded that her

parents wouldn’t feed her dinner, but maybe that would help.”1

On another occasion, Grumman, in Nicole’s words, “talked

about my--my butt and how if I was walking down the hallway that

I would knock out all of the lockers because it was so big.” As

a result, Nicole recalled, “everyone used to look at me when I

was walking down the hallway because he pointed that out.”

Grumman himself remembered a different incident where he asked a

boy in the class to draw a circle on the chalkboard to represent

a cell, but the boy drew the circle too small. So Grumman told

him, “You have to make it bigger. Make it as big as Nicole’s

butt.”2 The boy drew a circle of “exaggerated” size in response,

eliciting laughter from some of the other boys in the class.

1 In the literal sense, the word “rubus” refers to a genus of wild berry; it appears, based on Nicole’s subsequent deposition testimony, that she meant “rumpus,” which she took to mean “buttocks.” Grumman, for his part, denied having referred to the buttocks at all, though he admitted referring to the hips. 2 There is evidence that Grumman actually directed this comment at a different girl in the class. Taking the evidence in the light most favorable to the plaintiffs, however, the court must assume that, like Grumman testified, the comment was directed at Nicole.

4 In yet another incident, Nicole arrived for class wearing

pants with one of the nicknames for the school’s athletic teams,

“Big Red,” emblazoned across the bottom.3 Pointing at the pants,

Grumman said, “Oh, that’s what you call it these days,” which

Nicole understood to refer to the size of her buttocks. Grumman

made a similar comment to another girl in the class who was

wearing pants with that design, Caitlin Oullette, telling her, “I

called you many things but ‘Big Red’ is definitely a new one”

(spelling corrected).

During the same time period, in fact, Grumman made other

like comments about Caitlin as well, about five or six in total,

according to Nicole. Once, Grumman told the class that a person

kills 1,000 “butt cells” just by sitting down, but--pointing to

Caitlin--“Big Red over here must kill about 2,000 every time she

sits down.” Yet another time, after a boy in the class showed

Grumman a sticker and asked him, “Isn’t that sexy?” Grumman

pointed to Caitlin “in front of the whole class” and said, “I

think that’s sexy but the sticker isn’t” (spelling and

punctuation corrected). The summary judgment record contains

evidence, either direct or circumstantial, that Nicole witnessed

3 Of course, as any fan of N.H.I.A.A. Class M-S athletics knows, the Stevens teams are officially known as the Cardinals.

5 all of these incidents.4 Grumman did not make such comments

about any of the boys in the class.

B. Nicole’s complaint and the school’s response

By roughly the middle of October, Nicole told her parents

about Grumman’s comments. Her parents, in turn, told her to tell

her guidance counselor, Jacquelyn Hall. Nicole, accompanied by

Caitlin, met with Hall on October 2 0 , telling her that Grumman

“was saying some things that made them feel uncomfortable.”5

After Nicole began relating Grumman’s comments about her getting

stuck in the window, Hall directed her and Caitlin to write the

comments down, which they did, in signed statements that

described all of the incidents just discussed.

Hall assured Nicole that she would give her statement to the

school’s principal, who would “talk to M r . Grumman and hopefully

it will stop. And if it doesn’t stop you need to let me know.”

Hall says that she also informed Nicole of the possibility that

4 Nicole testified about a further incident where she asked Grumman to borrow a pencil, “[a]nd he said that he had one and he would give it to me because he liked m e . And then when I walked away [C]aitlin said that he was looking at me like at my bottom.” While Nicole’s account of Grumman’s statement is admissible, her account of Caitlin’s statement is hearsay, and therefore cannot be considered on summary judgment, as discussed supra. 5 There are varying accounts of whether Nicole and Caitlin went to their guidance counselors at the same time or not. Reconciling them is not necessary to deciding the summary judgment motions.

6 she could transfer to another biology class with a different

teacher, but that the switch would have necessitated changing two

other class as well, and that Nicole said “she would wait to see

how it went before she did that.” Nicole, though, denies that

anyone ever offered to switch her out of Grumman’s class.

Within a few days of Nicole’s meeting with Hall, the

principal, defendant Leo Paul Couture, had reviewed Nicole’s

statement and met with Grumman and a representative from the

teachers’ union. Grumman did not deny making the comments

described in the statement--which included the remarks about her

getting stuck in the window and the “Big Red” nickname on her

pants--but, in Couture’s words, “put it in context.”6 Grumman

explained, for example, that the window comment was intended to

convey that the DNA molecule, because of its relatively large

size, could not fit through the pores in the nucleus of the cell.

Grumman also explained that the comment about the pants was an

honest inquiry about the school’s nickname. Couture told Grumman

that his comments “were inappropriate and the students did not

find them to be humorous.” Couture did not, however, consider

6 While Couture does not believe he had seen Caitlin’s statement until after this meeting, Grumman recalled having been shown a copy at the meeting itself. This dispute has no bearing on the outcome of the summary judgment motions. Grumman acknowledged making the comments recounted in Caitlin’s statement, at least in substance.

7 the comments to be sexual harassment. In any event, Grumman

agreed not to “make those types of comments anymore.”

Couture arranged a meeting with Nicole, Caitlin, and the

school’s vice principal roughly one week later. Couture told

Nicole that, having read her statement, he found Grumman’s

comments inappropriate, met with him, and directed him to stop

making such remarks. Couture also conveyed that Grumman wanted

to apologize. Nicole’s response to this information was “quiet,”

according to Couture, or “like, okay,” according to her. At the

end of the meeting, Nicole and Caitlin were directed to go back

to Grumman’s class (where, it appears, they had been when

summoned to the meeting), which made Nicole “really

uncomfortable.” Grumman recalls that, after the girls returned,

Couture arrived and, outside of the classroom, informed him “that

they did not wish to speak to m e , they did not wish an apology

individually in front of the class or anything of that sort.”

Nicole confirmed that those were her wishes because, as she put

i t , “I didn’t want him around me.”

Nicole perceived that Grumman “acted differently” toward her

after her meeting with Couture: he put her in the back of the

class, called on her less, did not take her questions, and “kind

of shrug[ged] [her] off.” But when Hall, the guidance counselor,

called Nicole in for a meeting at the end of October to follow up

on her complaint, Nicole said there had been no further issues.

8 Nicole made similar remarks to Hall in November, when she also

said that biology class was going fine, and in March, after the

course had ended. In line with these reports, Nicole testified

at one point in her deposition that Grumman’s offensive

statements stopped “very quickly” after she complained to Hall;

elsewhere in her deposition, however, she said that Grumman “made

a few” comments she “felt were inappropriate” even after that

point, though the plaintiffs have not endeavored to explain what

those were.7 Nicole received a grade of B+ in the class,

consistent with her grades in her other classes that marking

period (A+, A , and B-) which, so far as the record indicates,

were consistent grades in other marking periods as well.

Nicole recalls that, in October 2005 “when things were going

on,” she had difficulty sleeping. Her mother remembers that

Nicole “wouldn’t get u p . She wouldn’t eat.” Nicole also said

that she “just didn’t want to do anything” and “was afraid to

hang out with people at Stevens because I was afraid they would

talk about what happened” in Grumman’s class. In fact, Nicole

noticed boys from the biology class laughing at her in the school

hallways, even after the course had ended. In April 2006, Nicole

began discussing Grumman’s comments with a counselor from Women’s

7 Nicole recalled an incident where, after the course had ended, Grumman “wanted me to come in and work hours for him in his classroom” as punishment for not turning in her textbook. But Nicole did not comply, based at least in part on her mother’s concerns. 9 Support Services, which “provides emotional support only to

clients--not clinical therapeutic support.” Nicole spoke to the

counselor, sometimes over the phone, roughly five times in April

and May 2006, then once again in August 2006.8

Nicole attempted to avoid walking by Grumman’s classroom on

her way to other classes--he made a habit of standing in the

hallway between periods--but still ended up passing him about

twice each week. After the biology class ended in late January

2006, however, Grumman’s presence at the school was limited due

to his own medical problems. He had foot surgery in late

February that required him to miss school until the middle or end

of May and then, within two weeks of returning, broke a bone in

the same foot and missed the rest of the academic year. Nicole

did not know the reason for Grumman’s absence; her parents, for

their part, believed he had been terminated, though they did not

have any discussion with school personnel about the outcome of

Nicole’s complaint against Grumman until April 2006.

Around that time, Nicole’s father became engaged in a series

of communications with school officials, disputing an academic

requirement that had been imposed on Nicole’s sister, Amber, a

8 In January 2007, Nicole began seeing a different counselor, but talked with her about other goings-on in her life at that time, not about Grumman. Nicole did discuss Grumman’s comments, as well as other subjects, with a third counselor she saw in March 2007, but did not resume seeing her again until October 2007.

10 senior at Stevens. Amber incurred the requirement by missing a

mandatory rehearsal for an arts class while she was visiting the

University of New Hampshire, which she planned to attend on a

swimming scholarship, to meet with the coach. After her father’s

communications produced a lengthy letter from Couture presenting

his view of the circumstances surrounding the absence and a

proposal for ending the dispute, Nicole’s father called a school

board member, complaining that Couture “can send me a several

page letter” about the dispute over Amber’s class but “on this

incident with Nikki we never heard a thing.”

In response, the school board member contacted the

superintendent, Jacqueline Guillette, who in turn immediately

summoned Couture and Hall to ask them what they knew about

Grumman’s comments to Nicole. Guillette directed Couture to

contact the Brodeurs “and say very honestly it appears we’ve

dropped the ball here.” Couture, in fact, had no recollection of

Nicole’s complaint at all when Guillette questioned him about i t .

C. The school’s sexual harassment policy

The Stevens High sexual harassment policy, as set forth in

the 2005-2006 student handbook, defines sexual harassment, in

relevant part, as “verbal or physical conduct or communication of

a sexual nature” which “has the purpose or effect of

substantially or unreasonably interfering with an individual’s

11 . . . education, or creating an intimidating, hostile, or

offensive . . . education environment.” The policy designates

the principal as “the person responsible for receiving oral or

written reports of sexual harassment . . . . Upon receipt of a

report, the principal must notify the Superintendent immediately

without screening or investigating the report.”

The policy directs the superintendent to then “authorize an

investigation,” including interviews with the complainant and the

person complained against as well as “any other methods and

documents deemed pertinent by the investigator.” I f , as a result

of this investigation, the complaint is found to be valid, the

policy empowers the school district to “take such disciplinary

action as it deems necessary and appropriate, including warning,

suspension, or immediate discharge to end sexual harassment and

. . . prevent its recurrence.” In the meantime, however, the

superintendent may “take immediate steps, at [her] discretion, to

protect the complainant, students, and employees pending

completion of an investigation.”

As Couture acknowledged at his deposition, this policy does

not authorize him, as principal, to decide--as he admits to doing

in Nicole’s case--that an incident does not rise to the level of

sexual harassment. In fact, Guillette instructed him when they

met in response to Nicole’s father’s complaint to the school

12 board member that, in the future, he should simply report claims

of sexual harassment to her rather than judging them himself.

As directed by Guillette, Couture attempted to call Nicole’s

father, who refused to speak to him about her complaint. Couture

then sent a letter to Nicole’s father, in late April 2006,

acknowledging that there had been no disciplinary action against

Grumman and expressing “regret that this matter has gone

unresolved for as long as it has.” Couture also offered to

investigate “in accordance with our policies regarding sexual

harassment,” and asked for permission to interview Nicole, with

her father present, as part of that process. But the Brodeurs

did not allow Nicole to be interviewed because they had already

retained counsel on her behalf at that point.

The Brodeurs, in fact, had no direct contact with anyone

from the school about Nicole’s complaint after her father’s call

to the school board member in April. In July, the Brodeurs

decided that Nicole would not return to Stevens in the fall due

to what they perceived as uncertainty about Grumman’s status for

the upcoming academic year. The Brodeurs eventually chose

Vermont Academy, a private secondary school, instead. As it

turns out, Grumman was returning to Stevens for the 2006-2007

academic year, though the Brodeurs did not know i t : Guillette

explained that, by the time she learned of Nicole’s complaint,

the school board had already voted to renew Grumman’s contract

13 for the upcoming school year, and that, on advice of counsel, she

refrained from proceeding with an investigation without Nicole’s

participation. At the end of the 2006-2007 academic year,

however, Grumman retired, apparently of his own accord.

D. Prior complaints against Grumman

Before receiving Nicole’s complaint, Couture had

investigated other charges of inappropriate comments by Grumman,

while he was serving as head coach of the Stevens girls’ varsity

soccer team. The first complaint took the form of a pseudonymous

letter that Guillette’s predecessor as superintendent received

early in the winter of 1999, alleging, among other things, that

Grumman “made sexual comments to the girls on the field,” “pulled

the shorts on one girl, because she had what they call a wedgie,”

and “embarrasses the girls in his science class with comments”

suggesting their promiscuity.

In response, Couture interviewed several members of the

previous fall’s team, who recounted a number of instances of

inappropriate behavior by Grumman. These included (1) taking a

girl’s bra from her gym bag and commenting on i t , (2) telling the

girls to think about sex to make themselves smile for the team

photo, and (3) making vaguely suggestive comments about their

breasts. The girls interviewed, however, said that nobody had

actually seen Grumman touch the girl’s shorts as the letter

14 alleged--that the girl had felt someone do that to her and, when

she starting accusing her teammates, some suggested that it had

been Grumman. When Couture interviewed Grumman, he denied “any

incidents which he would view in retrospect as sexual

harassment,” but acknowledged the chance for “misinterpreted

joking and kidding.”

Finding “evidence to suggest that the girls interviewed have

indeed been embarrassed by what has generally been described as

Mr. Grumman’s kidding,” Couture recommended that Grumman

meet with both the JV and varsity teams in my presence . . . with the express purpose of apologizing to any/all who may have been offended. Furthermore, . . . Mr. Grumman must be give an opportunity to demonstrate his agreement that these types of comments must stop. Failure on M r . Grumman’s part to stop must logically result in further disciplinary action.

Grumman apologized as directed, and there was no further action.

In October 2002, the Stevens athletic director received

another complaint about Grumman, this time from a parent of one

of the girls on the team, alleging that Grumman had told the team

a graphic and offensive story during a pre-game speech. Couture

again interviewed several girls on the team as part of his

investigation. Based on these interviews, Couture determined

that the story involved a teenaged girl who, though “very tired

from trying to balance work with school and athletics,” agreed to

work late at her job one night. After finally leaving, with the

door locked behind her, the girl approached her car, parked in an

15 unlighted section of the lot. But “suddenly she felt [a] hand

over her mouth and her head was slammed against the hood of her

car. She was turned around, still with a hand over her mouth,

and the molester put his other hand up under her skirt and tore

her underwear. He then grabbed her crotch.”

Grumman then brought the tale “to an abrupt end” and asked

the players to identify the girl in the story. Some players

suggested that the girl represented their team, which Grumman

confirmed, then asking, “Who’s the molester?” After the girls

responded with the name of the team they were playing that day,

Grumman asked what the girl should have done; the girls suggested

various ways of fighting back. Grumman said that “as a team they

needed to fight back against the molester in the story,” i.e.,

their opponent that day.

Most of the girls interviewed by Couture said that the story

had upset them, and their teammates, to one degree or another.

And some reported other inappropriate comments by Grumman, such

as referring to one team member as a lesbian (after she claimed

to be one in response to Grumman’s suggestions that she date the

male team manager) and to another team member’s “thunder thighs.”

One student, in response to Couture’s question whether she

considered the story “uncharacteristic” for Grumman, mentioned “a

time when he made two girls in class get up on a table and

massage each others’ stomachs. I think they were suppose[d] to

16 be doing the Heimlic[h] maneuver, but it made them feel very

uncomfortable.” When Couture interviewed Grumman, he explained

that he had conceived the sexual assault story “as an analogy to

pump the players up” for their game and did not dispute the

players’ account of i t . But Couture did not ask Grumman, or

anyone else, about the other inappropriate comments reported by

the players.

Based on Couture’s report of his investigation, Guillette,

who had just begun working as the superintendent at that point,

dismissed Grumman from his coaching position, finding the story

“highly offensive, inappropriate, unprofessional, and

unacceptable.” Thus ended Grumman’s 20-year tenure as the girls’

varsity soccer coach at Stevens. Guillette also barred Grumman

“from any future coaching positions within” the district and from

“volunteering with any athletic teams or athletic gatherings

under the auspices of” the district, at least through the end of

the academic year, when Guillette would “review the situation.”

Guillette also expressed concern “as to whether or not this

conduct has had or will have a negative impact on your ability to

be effective in the classroom for all students.”

Beyond Guillette’s warning against “any recriminations or

repercussions within the classroom or school setting with or

toward any students,” however, Grumman did not face any

heightened scrutiny of his behavior in the classroom as a result

17 of the 2002 investigation. As Guillette explained in her

deposition, “this happened in soccer, and we took him away from

soccer.” Guillette also said that she did not know whether she

had learned of the 1999 incident, which occurred before she came

to the school district, while handling the 2002 incident.

After completing about five hours’ worth of informal sexual

harassment training, as Guillette had suggested, Grumman applied

to coach the girls’ varsity field hockey team for the fall 2004

season. As part of the interview process, the Stevens athletic

director met with Grumman and four upperclassmen from the field

hockey team. During this meeting, according to one of the girls

who attended, Grumman named a particular girl, since graduated

from the school, and said he had attempted to recruit her for the

soccer team by telling her she would look good in a soccer

jersey.9 At least one of the girls at the meeting later told

Couture that she considered this a “red flag.” The athletic

director, noting that the interviewers considered such comments

“offensive and unnecessary,” informed Grumman that he would no

longer be considered for the job.

9 Grumman explained at his deposition that he meant the girl in question would have “looked good” in a uniform for a variety of sports “[b]ased on her ability to play as an athlete.”

18 III. Analysis

As mentioned at the outset, the Brodeurs, acting on Nicole’s

as well as their own behalf, have brought a claim against the

District for violating Title I X , as well as a number of state-law

claims against the District, Grumman, and Couture. Their

complaint asserts twelve numbered counts:

• violation of Title I X , against the District (count 1 ) ;

• breach of contract, against the District (count 2 ) ;

• breach of fiduciary duty, against the District (count 3 ) ;

• negligence in failing “to enforce the rules contained in the Handbook,” i.e., the school’s sexual harassment policy, against all defendants (count 4 ) ;

• negligence in failing to “adhere to all federal and state regulations established for the operation of a public educational facility receiving state and local funding,” i.e., the school’s sexual harassment policy, against the District (count 5 ) ; 1 0

• negligence in failing “to protect [Nicole] from abuse by the School District’s employees,” against the District (count 6 ) ;

• negligence in hiring and retaining Grumman, against the District (count 7 ) ;

• negligence in failing “to properly train its staff to identify and respond to sexual harassment in general and in particular to exercise reasonable care in the supervision of Grumman,” against the District (count 8 ) ;

• negligence in failing “to warn Plaintiff of Grumman’s propensities,” against the District (count 9 ) ;

10 The plaintiffs acknowledge that the school’s sexual harassment policy is “[i]dentical to the District’s Title IX Procedure.” They have not identified any other federal or state regulations implicated here.

19 • negligent infliction of emotional distress, against all defendants (count 1 0 ) ;

• intentional infliction of emotional distress, against all defendants (count 1 1 ) ;

• “respondeat superior/vicarious liability/agency” against the District for the “negligent acts” of its “employees, servants, or agents” and “the conduct of the individual defendants” (count 1 2 ) .

The complaint seeks a variety of compensatory and other damages,

including for “mental and emotional harm” on behalf of both

Nicole and her parents.

The defendants have moved for summary judgment on all of the

plaintiffs’ claims. First, the District argues that the

plaintiffs have not come forward with evidence sufficient to

establish its liability under Title IX. Second, the defendants

attack the plaintiffs’ state-law claims on a number of grounds,

arguing that (a) the breach of contract claim fails because the

student handbook is not a contract as a matter of law; (b) the

tort claims are barred by the doctrine of discretionary function

immunity; and (c) the defendants’ conduct did not amount to

intentional infliction of emotional distress as a matter of law.

Third, the defendants argue that (a) Nicole’s parents cannot

recover in negligence because they did not “contemporaneously

witness a serious injury to their child” and (b) neither they nor

Nicole can recover for their claimed emotional distress because

20 they lack the requisite expert testimony that the distress had

physical manifestations traceable to the defendants’ conduct.11

A. The Title IX claim (Count 1 )

Title IX provides that “[n]o person in the United States

shall, on the basis of sex, be excluded from participation i n , be

denied the benefits o f , or be subjected to discrimination under

any education program or activity receiving Federal financial

assistance,” with a number of exceptions not relevant here. 28

U.S.C. § 1681(a). The Supreme Court has “concluded that sexual

harassment is a form of discrimination for Title IX purposes and

that Title IX proscribes harassment with sufficient clarity to

. . . serve as the basis for a damages action.” Davis ex rel.

LaShonda D. v . Monroe County Bd. of Educ., 526 U.S. 629, 649-50

11 The defendants also challenge the plaintiffs’ entitlement to other categories of damages, arguing that (1) they cannot meet the standard for enhanced compensatory damages under New Hampshire law, (2) they cannot recover the tuition and other fees paid to Vermont Academy because they failed to comply with the state-law administrative framework for transferring a student to a different school, and (3) even if they can recover the tuition, they are limited to what was actually paid, i.e., not including the scholarships, despite the collateral source rule. Following oral argument, however, the court asked the parties to submit briefing on two additional issues in the form of pre-trial motions in limine: (4) whether New Hampshire law permits recovery of enhanced compensatory damages in the absence of compensatory damages, and (5) whether Nicole’s parents can recover the Vermont Academy expenses even though, as explained infra, they have no claim of their own against the defendants. Since the court will decide these issues, to the extent necessary, in the context of ruling on the motions in limine, the defendants’ motions for summary judgment are denied without prejudice as to these points.

21 (1999). But “funding recipients are properly held liable in

damages only where they are deliberately indifferent to sexual

harassment, of which they have actual knowledge, that is so

severe, pervasive, and objectively offensive that it can be said

to deprive the victims of access to the educational opportunities

or benefits provided by the school.” Id. at 650.

In moving for summary judgment, the District does not

dispute that Stevens High is an “education program or activity

receiving Federal financial assistance” bound to comply with

Title IX. The District does, however, argue that (1) it had “no

actual notice that Nicole believed that M r . Grumman was sexually

harassing her,” (2) it was not deliberately indifferent to the

complaints against Grumman, arising from his behavior as either

Nicole’s biology teacher or as the girls’ varsity soccer coach,

and (3) the harassment was not so severe, pervasive, and

objectively offensive so as effectively to deprive Nicole of

access to the school’s educational opportunities or benefits.

1. Actual knowledge of the harassment

The Supreme Court has rejected liability in damages under

Title IX for the actions of a funding recipient’s employees on

theories of respondeat superior or constructive notice. See

Gebser v . Lago Vista Indep. Sch. Dist., 524 U.S. 2 8 7 , 288-90

(1998). Instead, the Court has held, “a damages remedy will not

22 lie under Title IX unless an official who at a minimum has

authority to address the alleged discrimination and to institute

corrective measures on the recipient’s behalf has actual

knowledge of discrimination in the recipient’s programs and fails

adequately to respond.” Id. at 290. Without disputing that

Couture, as the principal of Stevens High, had the requisite

authority to address alleged sexual harassment by one of its

teachers and to institute corrective measures on its behalf, the

District argues that Couture lacked actual knowledge of any such

harassment. This is s o , according to the District, because all

Nicole reported to Hall, her guidance counselor, was “that M r .

Grumman was saying things in class that made her and another

student feel uncomfortable.” The District’s premise is flawed.

While Nicole’s report to Hall began with the complaint that

Grumman was saying things that made Nicole and Caitlin “feel

uncomfortable,” the report certainly did not end there. That

alone distinguishes this case from the District’s sole authority

on this point, Johnson v . North Idaho College, N o . 06-436, 2008

WL 4000128 (D. Idaho Aug. 2 8 , 2008), where the court ruled that

“[a] comment made by a student that her professor makes her

‘uncomfortable,’ without more detail, cannot be equated to a

complaint of sexual harassment.” Id. at * 9 ; see also Rost ex

rel. K.C. v . Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114,

1119 (10th Cir. 2008) (finding that plaintiff’s statement “that

23 the boys were bothering her was insufficient to give the district

notice that she was being sexually harassed”).

At Hall’s urging, in fact, Nicole and Caitlin proceeded to

describe, in writing, Grumman’s comments, which included not only

his remark about how the size of Nicole’s buttocks would prevent

her from fitting through a window, but also his similar quips

about the appearance of the words “Big Red” on the seats of the

girls’ pants, his direction to a boy to draw a circle “as big as

Caitlin’s butt,” and his aside that he thought “that”--meaning

Caitlin--was “sexy.”12 A jury could readily find that these

accounts of Grumman’s comments, which Hall promptly passed on to

Couture, amount to the “actual knowledge of discrimination”

necessary to subject the District to liability under Title IX.

See Hunter ex rel. Hunter v . Barnstable Sch. Comm., 456 F. Supp.

2d 255, 265-67 (D. Mass. 2006) (finding actual knowledge

requirement “easily satisfied” based on plaintiffs’ report of

harassment to school principal), aff’d sub nom. Fitzgerald v .

Barnstable Sch. Comm., 504 F.3d 165 (1st Cir. 2007), rev’d on

other grounds, 129 S . C t . 788 (2009).

12 Taking the facts in the light most favorable to the plaintiff, Nicole and Caitlin simultaneously presented their complaints against Grumman to Hall, and Couture, in turn, dealt with those complaints together. See notes 5-6 and accompanying text, supra. For simplicity’s sake, then, the court will not further distinguish between Nicole’s and Caitlin’s complaints, except as it bears upon the question of the harassment’s severity, see infra Part III.A.3.

24 Furthermore, the plaintiffs argue that, regardless of what

Nicole told Hall about Grumman’s comments in October 2005, both

Couture and the District “had actual knowledge of Grumman’s

propensity to sexually harass adolescent girls” based on the

investigations into his comments to members of the girls’ soccer

and field hockey teams in 1998, 2002, and 2004. Many, but not

all, courts have endorsed this theory of notice under Title IX:

that “actual knowledge of discrimination” can take the form of

knowledge about the alleged harasser’s conduct toward others

which indicates some degree of risk that the harasser would

subject the plaintiff to similar treatment. See, e.g., Williams

v . Bd. of Regents, 477 F.3d 1282, 1295-96 (11th Cir. 2007);

Delgado v . Stegall, 367 F.3d 6 6 8 , 672 (7th Cir. 2004); J.K. v .

Ariz. Bd. of Regents, N o . 06-916, 2008 WL 4446712, at *13-*14 (D.

Ariz. Sept. 3 0 , 2008); Johnson v . Galen Health Insts., Inc., 267

F. Supp. 2d 679, 687-88 (W.D. Ky. 2003); Hart v . Paint Valley

Local Sch. Dist., N o . 01-004, 2002 WL 31951264, at *6 (S.D. Ohio

Nov. 1 5 , 2002); Doe v . Sch. Admin. Dist. N o . 1 9 , 66 F. Supp. 2d

5 7 , 63 (D. M e . 1999); but see Baynard v . Malone, 268 F.3d 2 2 8 ,

238 (4th Cir. 2001) (“Title IX liability may be imposed only upon

a showing that school district officials possessed actual

knowledge of the discriminatory conduct in question”).

Though the First Circuit Court of Appeals has never

explicitly considered the contours of “actual knowledge” under

25 Title I X , it appears to have recognized the plaintiffs’ theory,

at least implicitly, in Wills v . Brown University, 184 F.3d 20

(1st Cir. 1999). There, at the trial of the plaintiff’s Title IX

claim against her university alleging that one of her professors

had touched her inappropriately, the district court allowed

evidence that the university knew--before that incident--that the

professor had engaged in similar conduct toward another student,

but disallowed evidence that--after the incident involving the

plaintiff--the university received complaints of the professor’s

similar conduct toward additional students as well. Id. at 2 6 .

In upholding this ruling, the court of appeals observed that

“evidence of an inadequate response is pertinent to show fault

and causation where the plaintiff is claiming that she was

harassed or continued to be harassed after the inadequate

response.” Id. (citing Gebser, 524 U.S. at 2 9 0 ) .

Wills, then, like the majority of the federal case law,

supports the plaintiffs’ view that a defendant’s notice of an

alleged harasser’s “propensity” toward such behavior, based on

his reported treatment of other students, amounts to “actual

knowledge of discrimination” sufficient to trigger liability for

damages under Title IX. See Morrison v . N . Essex Cmty. Coll.,

780 N.E.2d 1 3 2 , 144 (Mass. App. C t . 2002) (relying on Wills to

hold that actual “knowledge could derive from having learned that

an individual had previously harassed other students”). Because

26 the District has argued only that Nicole’s complaint itself was

inadequate, however, the court need not decide whether the prior

allegations against Grumman were sufficient as a matter of law to

create the actual knowledge essential to the District’s liability

for his subsequent treatment of Nicole.13 Based on Nicole’s

complaint alone, the plaintiffs have presented a trialworthy

issue as to the District’s actual knowledge.

2. Deliberate indifference to the harassment

Even after an appropriately empowered school official has

actual knowledge of the discrimination, a school will not incur

liability for damages under Title IX unless its response

“amount[s] to deliberate indifference”--tantamount, in other

words, to “an official decision by the recipient not to remedy

13 The court also need not decide how strongly the treatment of others must demonstrate the harasser’s “propensity” toward such conduct. Some courts have held that “the ‘actual knowledge need only be of facts indicating that the teacher has the potential to abuse a student,” Tesoriero v . Syosset Cent. Sch. Dist., 382 F. Supp. 2d 3 8 7 , 397 (E.D.N.Y. 2005); others have rejected the view that to “know in a general sense that there is a risk that . . . teachers will harass a student sexually” is enough, holding instead that “actual knowledge” contemplates “risks so great that they are almost certain to materialize if nothing is done,” Delgado, 367 F.3d at 672; still others have struck upon an intermediate standard, holding that “‘[a]n educational institution has ‘actual knowledge’ if it knows the underlying facts, indicating sufficiently substantial danger to students, and was therefore aware of the danger,’” Bostic v Smyrna Sch. Dist., 418 F.3d 355, 361 (3d Cir. 2005) (quoting (quot 3C Kevin C . O’Malley et a l . , Federal Jury Practice & Instruc nstructions § 177.36, at 726 (5th ed. 2001)). Choosing from among these standards remains a task for trial, if necessary.

27 the violation.” Gebser, 524 U.S. at 290. To satisfy this

standard, a plaintiff must show that the funding “recipient’s

response to the harassment or lack thereof is clearly

unreasonable in light of the known circumstances.” Davis, 526 U.S. at 648. 14

The District argues that neither its responses to the

complaints about Grumman’s conduct as the girls’ varsity soccer

coach nor its handling of Nicole’s complaint rose to the level of

deliberate indifference as a matter of law. The court disagrees

on both counts. It is true that, as the District points out,

“[e]ach complaint” of Grumman’s inappropriate comments to members

of the girls’ varsity soccer team in 1998 and 2002 was

“investigated and corrective action taken.” A jury could find,

however, that the investigative or the corrective aspect of the

District’s response to the incidents as a whole was so lacking as

to amount to deliberate indifference.

The 2002 complaint against Grumman arose out of his

subjecting the entire team to a graphic story of the sexual

assault of a girl their age by an assailant in a darkened parking

14 Though the Supreme Court articulated the “clearly unreasonable” test as the standard of school liability for student-on-student sexual harassment, the parties agree that the same test applies to claims of teacher-on-student sexual harassment. See Williams ex rel. Hart v . Paint Valley Local Sch. Dist., 400 F.3d 3 6 0 , 367-68 (6th Cir. 2005); Garcia ex rel. Marin v . Clovis Unified Sch. Dist., N o . 08-1924, 2009 WL 1034264, at *5 n.4 (E.D. Cal. Apr. 1 6 , 2004).

28 lot, including details that the assailant tore the girl’s

underwear and grabbed her crotch. Couture’s investigation

revealed that the story had upset most of the girls on the team,

and that Grumman had made additional remarks, of the kind that

put him in hot water in 1999--and which he had agreed, as part of

the resolution of that prior complaint, to refrain from making.

Nevertheless, Couture’s report of the 2002 investigation made no

reference to the 1999 investigation he had personally conducted,

and the superintendent could not remember whether she had learned

of the prior investigation before deciding how to discipline

Grumman for the 2002 incident. And while that discipline

entailed Grumman’s immediate dismissal from his job as the girls’

varsity soccer coach, as well as an indefinite suspension from

other coaching or volunteer athletic activities, it did not

affect his classroom duties at all (aside from a warning not to

retaliate against any team members in class).

Though the conclusion is by no means inevitable, a jury

could find that this response amounted to deliberate

indifference. A “school’s investigation, though promptly

commenced . . . may be carried out so inartfully as to render it

clearly unreasonable.” Fitzgerald, 504 F.3d at 175 (citing Sch.

Admin. Dist. N o . 1 9 , 66 F. Supp. 2d at 64-65). While certain

aspects of the 2002 investigation, like the interviews with the

players, were by all accounts carried out diligently, a jury

29 could find other aspects of the probe “so lax, so misdirected, or

so poorly executed as to be clearly unreasonable under the known

circumstances.” Id. at 175. First, in responding to the 2002

incident, the District failed even to take into account its

conclusion, based on Couture’s own prior investigation, that

Grumman had made other sexually charged remarks to team members

during the 1998 season. Second, in light of that fact, to say

nothing of the explicit and disturbing nature of the story

Grumman told the team in 2002, a jury could find that the

District acted in a clearly unreasonable way by failing to take

any action at all to ensure that Grumman did not engage in

similar behavior in the classroom.

So far as his report of the 2002 investigation reveals,

Couture did not attempt to question any of Grumman’s students

about that subject, simply asking the girls on the team he

interviewed whether they found the “story to be uncharacteristic

of M r . Grumman from their past experience.” Indeed, Couture did

not even follow up when one of the players responded to that

question with an account “about a time when [Grumman] made two

girls in a class . . . get up on a table and massage each others’

stomachs” under the guise of demonstrating the Heimlich maneuver.

And this was despite Couture’s awareness, from the anonymous

complaint of 1999, of other alleged inappropriate classroom

30 behavior by Grumman, including remarks of a sexual nature,15 as

well as Guillette’s concern, stated in the letter of reprimand

for the 2002 incident, “as to whether or not [the 2002] conduct

has had or will have a negative impact on [Grumman’s] ability to

Considering the totality of the information available in

2002, a jury could find that the District acted with deliberate

indifference in neither investigating Grumman’s conduct in the

classroom nor taking any prophylactic measures, such as training

or monitoring, to ensure that his inappropriate remarks were in

fact restricted to the soccer field. See Theno v . Tonganoxie

Unified Sch. Dist. N o . 4 6 4 , 394 F. Supp. 2d 1299, 1311-12 (D.

Kan. 2005) (ruling that evidence supported jury’s finding of

deliberate indifference where “although at times the school

administrators appeared to have given meaningful attention to

some . . . complaints of harassment, at other times school

personnel apparently chose to turn a blind eye”); Hart, 2002 WL

31951264, at *8 (denying summary judgment for defendant on

deliberate indifference aspect of Title IX claim in absence of

“protective measures or procedures for students or staff to

15 Despite this allegation, Couture appears to have interviewed only members of the girls’ soccer team (and Grumman) during his investigation of the 1999 complaint, at least based on the record before the court.

31 follow” in monitoring teacher who had previously been accused of

inappropriate touching).

Indeed, a jury could find the District’s thinking that “this

happened in soccer, so we took him away from soccer” to be

clearly unreasonable both in its premise--there is evidence,

again, that allegations of Grumman’s inappropriate behavior

extended beyond his actions as coach--and its conclusion--given

Grumman’s history of making sexually charged comments, even after

agreeing to refrain from them.16

This is not to say, of course, that a jury could not see the

case differently, agreeing with the District that its response to

the prior complaints, while imperfect, was “within a universe of

plausible investigative procedures” and outcomes. Fitzgerald,

504 F.3d at 175. After all, the record reveals no allegations of

inappropriate behavior by Grumman whatsoever until 1999; an

additional four years passed between those allegations and their

2002 counterparts; and an immediate termination from the girls’

varsity soccer coaching job and an indefinite suspension from any

involvement in school athletics is hardly a slap on the wrist.

Furthermore, deliberate indifference under Title IX is “a

stringent standard of fault, requiring proof that a [defendant]

16 In fact, as discussed supra, Grumman made a comment to members of the girls’ varsity field hockey team in 2004 about a particular girl’s looking good in a uniform which some of them, as well as the athletic director, found offensive.

32 disregarded a known or obvious consequence of [its] action or

inaction.” Porto v . Town of Tewksbury, 488 F.3d 6 7 , 73 (1st

Cir.) (internal quotation marks omitted), cert. denied, 128 S .

C t . 510 (2007). But, while the record could therefore support a

finding that the District was not deliberately indifferent, it by

no means compels that conclusion as a matter of law.

There is also the plaintiffs’ argument that, whatever can be

said of the District’s handling of the allegations against

Grumman by others, the District displayed deliberate indifference

in handling the complaint by Nicole, principally by failing to

follow its own sexual harassment policy. While departures from

the strictures of such a policy do not necessarily indicate

deliberate indifference, see Rost, 511 F.3d at 1122 (finding no

deliberate indifference where, instead of interviewing witnesses

as dictated by its policy, defendant relied on police

investigation); Oden v . N . Marianas Coll., 440 F.3d 1085, 1089

(9th Cir. 2006) (finding no deliberate indifference in violating

time deadlines of harassment policy), a wholesale failure to

employ established procedures for investigating sexual harassment

complaints is a different story. See Chancellor v . Pottsgrove

Sch. Dist., 501 F. Supp. 2d 695, 709 (E.D. P a . 2007); Michelle M .

v . Dunsmuir J t . Union Sch. Dist., N o . 04-2411, 2006 WL 2927485,

at *5-*6 (E.D. Cal. Oct. 1 2 , 2006).

33 Here, though the District’s policy requires a school

principal who receives a sexual harassment complaint to “notify

the Superintendent immediately without screening or investigating

the report,” Couture never passed Nicole’s complaints about

Grumman’s comments on to Guillette, who is the official empowered

by the policy to authorize an investigation and to take

corrective action. So no official investigation commenced.

The District acknowledges that the sexual harassment policy

was not followed, but maintains that Couture’s response was still

not clearly unreasonable because he did not “view[] the comments

as sexual harassment.”17 The best that can be said of this

argument for the moment is that a jury could rationally find

otherwise--in the sense that either the policy’s rule against a

principal’s “screening” a complaint clearly forbade Couture from

making that determination, or that, even if he reasonably

17 The District also relies on the deposition testimony of Nicole’s guidance counselor, Hall, that she did not “view[] the comments as sexual harassment.” Hall’s testimony, in response to a question as to whether she was “consciously” following the harassment policy in immediately forwarding Nicole’s complaint to Couture, was actually, “This one incident doesn’t make sexual harassment. Continued incidents would. So it needed to be addressed to begin with.” This statement is at best ambiguous as to whether Hall believed Nicole was complaining of sexual harassment which, in any event, is not the same issue as whether the District acted with deliberate indifference in not following the harassment policy. The court also notes that the District has not submitted the next page of the transcript of Hall’s deposition--just after counsel asks her why she asked Nicole to put her complaint in writing--but has submitted the page after that, by which point counsel has moved on to another subject.

34 believed to the contrary, he could not have also reasonably

believed that complaints of a male teacher’s repeated comments to

the class about the size of his female students’ buttocks were

not complaints of sexual harassment. C f . Billings v . Town of

Grafton, 515 F.3d 3 9 , 51 (1st Cir. 2008) (refusing to “accept

. . . that a man’s repeated staring at a woman’s breasts is to be

ordinarily understood as anything other than sexual” in the

context of a Title VII harassment claim).

Indeed, Couture admitted at his deposition that it was not

up to him to decide whether a complained-of incident rises to the

level of sexual harassment and, after learning that Nicole’s

complaint had not been investigated, Guillette instructed Couture

to tell the Brodeurs “very honestly it appears we’ve dropped the

ball here.” Whether this self-described “dropping the ball”

amounts to deliberate indifference is a question for the jury.

See Chancellor, 501 F. Supp. 2d at 709 (denying summary judgment

for defendant on the deliberate indifference element of a Title

IX claim where a principal failed to report an alleged sexual

relationship between a student and teacher to the superintendent

as required by the school’s sexual harassment policy).

The District also argues that, even though it did not follow

its sexual harassment policy, it nevertheless responded to

Nicole’s complaint in a way that was not clearly unreasonable:

Couture told “Grumman the comments needed to cease,” and Hall,

35 the guidance counselor, “told Nicole that she could change her

Lab Biology class . . . but Nicole decided to remain.” First,

however, Nicole has denied that anyone at Stevens offered to

transfer her out of Grumman’s class, so a genuine issue of fact

remains as to whether the proposed transfer was even part of the

District’s response--let alone whether the response was clearly

unreasonable. See Fitzgerald, 504 F.3d at 174 n.6 (observing

that transferring the victim, rather than the perpetrator, in

response to a sexual harassment complaint could suggest

deliberate indifference under “certain circumstances”). Second,

as just discussed, a jury could find that simply telling Grumman

to stop making inappropriate comments manifested deliberate

indifference in light of his proven inability to abide by such

instructions in the past. See Wills, 184 F.3d at 26 (noting

that, if an institution “learns that its measures have proved

inadequate” in preventing harassment, “it may be required to take

further steps to avoid new liability” under Title I X ) .

To sum u p , then, though the deliberate indifference standard

allows a court to “identify a response as not ‘clearly

unreasonable’ as a matter of law,” Davis, 526 U.S. at 649, the

record here, taken in the light most favorable to the plaintiffs,

does not permit that approach. A rational jury could find that

the District was deliberately indifferent in its response to

36 either the earlier complaints against Grumman by others, the

later complaints against Grumman by Nicole, or both.18

3. Severity of the harassment

Another limitation on liability in damages for harassment

under Title IX is that it lies only for “sexual harassment of

students that is so severe, pervasive, and objectively offensive,

and that so undermines and detracts from the victims’ educational

experience, that the victim-students are effectively denied equal

access to an institution’s resources and opportunities.” Davis,

526 U.S. at 651. The Court, borrowing from its employment

discrimination case law, has held that “[w]hether gender-oriented

conduct rises to the level of actionable ‘harassment’ thus

‘depends on a constellation of surrounding circumstances,

expectations, and relationships,’ including, but not limited t o ,

the ages of the harasser and the victim and the number of

18 Of course, to prevail on the Title IX claim, the plaintiffs must also convince the jury that the deliberate indifference in question caused Nicole to “undergo harassment, made her more vulnerable to i t , or made her more likely to experience it.” Fitzgerald, 504 F.3d at 171 (citing Davis, 526 U.S. at 6 4 5 ) . It is a substantial question whether, assuming the District was deliberately indifferent to the complaints of Grumman’s behavior as a coach in 1998 and 2002, that deliberate indifference had the requisite causal relationship to the claimed harassment Nicole experienced in Grumman’s classroom in 2005 to hold the District liable for it under Title IX. That question need not be considered now, though, because the District has not moved for summary judgment on that basis.

37 individuals involved.” Id. at 652 (quoting Oncale v . Sundowner

Offshore Servs., Inc., 523 U.S. 7 5 , 82 (1998)). 19

In contrast to this far-ranging approach, the District

argues principally that the plaintiffs cannot show harassment as

a matter of law due to the infrequency of Grumman’s comments to

Nicole, which it counts as two in a two-month period. But, while

Nicole’s written statement listed only two specific comments,

i.e., that the size of her buttocks would prevent her from

fitting through a window and the “Big Red” remark, even that

account notes that “he’s made other comments” and, moreover,

Nicole testified at her deposition that Grumman directed a total

of five or six “weird statements” or “sick comments” of this

nature at her. There is evidence that these comments included

Grumman’s telling a boy in the class to draw a circle on the

board “bigger . . . as big as Nicole’s butt” and saying that

Nicole would “knock out all of the lockers” while walking down

the hall because her “butt . . . was so big.”

Viewing the record in the light most favorable to the

plaintiffs, then, does not support the District’s position that

Grumman directed only two inappropriate comments at Nicole.

19 Because both the Supreme Court and the court of appeals have applied employment discrimination caselaw dealing on the concept of hostile environment in the Title IX context, see, e.g., Frazier v . Fairhaven Sch. Comm., 276 F.3d 5 2 , 65-66 (1st Cir. 2002), this court will do so throughout its discussion of the severity of the harassment here.

38 Furthermore, according to Nicole, he also directed about as many

such comments at Caitlin in Nicole’s presence, suggesting

“harassment of third parties [which] can help to prove a legally

cognizable claim of a hostile environment.” Hernandez-Loring v .

Universidad Metropolitana, 233 F.3d 4 9 , 55 n.4 (1st Cir. 2000).

In any event, “‘there is no magic number of incidents required to

establish a hostile environment claim,’” as this court has

previously observed. L’Etoile v . New Eng. Finish Sys., Inc.,

2008 DNH 163, 15 (quoting Boumehdi v . Plastag Holdings, LLC, 489

F.3d 7 8 1 , 789 (7th Cir. 2007)).

While the frequency of harassing conduct has some bearing on

the overall hostility of the educational environment, see Brown

v . Hot, Sexy & Safer Prods., Inc., 68 F.3d 525, 540 (1st Cir.

1995), that question, as the Court made clear in Davis,

ultimately depends on much more. The nature of Grumman’s

remarks--calling the size of Nicole’s buttocks to the attention

of the entire class on multiple occasions--and the students’

responses to it--including laughter by the boys in the class and

uncomfortable feelings by Nicole--suggests that the conduct was

“humiliating rather than a mere offensive utterance,” also an

important factor in the hostile environment analysis. Id.

These facts accrue even greater weight in light of the

“constellation of surrounding circumstances, expectations, and

relationships,” Davis, 526 U.S. at 6 5 1 , which here include

39 derogatory comments by a fifty-five year old man about the

buttocks of a fifteen-year old girl over whom he occupies a

position of authority, as her teacher. See Jennings v . Univ. of

N.C., 482 F.3d 686, 697 (4th Cir.) (reasoning that the disparity

in both age and power between a male soccer coach and his female

players contributed to the overall hostility of the environment

created by his frequent sexually charged comments) (en banc),

cert. denied, 128 S . C t . 247 (2007); EEOC v . R&R Ventures, 244

F.3d 3 3 4 , 339-40 (4th Cir. 2001) (reversing summary judgment for

defendant on hostile environment claim arising out of sexually

charged comments by “an adult male in a supervisory position over

young women barely half his age,” including comments about one

woman’s buttocks). Given the well-known sensitivity of

adolescent girls to changes in their appearance as they mature,

in fact, Nicole’s testimony that such remarks made her “self-

conscious” is hardly surprising.

S o , while the court agrees with the District that Grumman’s

comments must be assessed in their “social context” in deciding

whether they amount to actionable harassment, that exercise tends

to make Nicole’s educational environment appear more hostile, not

less so as the District suggests. The District’s real point

seems to be that the immediate context of the comments--at least

as Grumman explained after the fact--was “to engage his students

and maintain their interest in the class discussion” o r , in the

40 case of the “Big Red” remark, an honest inquiry as to the

significance of that phrase as it appeared on Nicole’s pants.

Putting aside the fact that this point does not explain Grumman’s

other comments about Nicole’s buttocks, the most it accomplishes

is providing some arguable basis for the jury to equate Grumman’s

conduct with the kind of “simple teasing” and “offhand comments”

that are not actionable as harassment. See Faragher v . City of

Boca Raton, 524 U.S. 775, 788 (1998). But that is hardly the

only reasonable characterization of an older male teacher’s

repeated comments to his class about a young female student’s

buttocks, as just discussed.

The District also relies on two district court cases ruling

that the plaintiff could not establish Title IX harassment as a

matter of law, suggesting that the facts there were no worse than

the facts here. First, though, the court of appeals has

cautioned that “[t]he highly fact-specific nature of a hostile

environment claim tends to make it difficult to draw meaningful

contrasts between one case and another for purposes of

distinguishing between sufficiently and insufficiently abusive

behavior.” Billings, 515 F.3d at 4 9 . Second, one of the cases,

Jennings v . University of North Carolina, 340 F. Supp. 2d 666

(M.D.N.C. 2004), though originally affirmed by a panel of the

Fourth Circuit, 444 F.3d 255 (4th Cir. 2006), was later reversed

by the full court sitting en banc, 482 F.3d 686 (4th Cir. 2007),

41 with the majority of the en banc panel finding the conduct at

issue “sufficiently severe or pervasive to create a sexually

hostile environment.” 482 F.3d at 698. So that case, as cited

supra, actually hurts the District’s argument.

The other case, which arose out of an art teacher’s hanging

the plaintiff’s photograph in a heart-shaped frame among those of

other students and regularly telling the plaintiff that he loved

her and referring to her as his girlfriend, is distinguishable.

Doe-1 ex rel. Doe-1 v . Huddleston, N o . 03-1107, 2006 WL 1582455,

at *4 (C.D. Ill. June 6, 2006). The court there observed that

the teacher’s conduct, toward a first-grader, was not “overtly

offensive,” id., but the same cannot necessarily be said of

multiple remarks about an adolescent girl’s buttocks.

In sum, the court cannot conclude, as a matter of law, that

Grumman’s behavior was not sufficiently severe, pervasive, and

objectively offensive to give rise to a harassment claim under

Title IX. As the court of appeals has cautioned, “the hostile

environment question is commonly one of degree--both as to

severity and pervasiveness--to be resolved by the trier of fact

on the basis of inferences drawn from a broad array of

circumstantial and often conflicting evidence.” Billings, 515

F.3d at 50 (internal quotation marks omitted). This case fits

that description comfortably.

42 The District also contends that “Nicole has not alleged nor

do the facts support that she was deprived of an educational

opportunity.” But the complaint expressly alleges that Grumman’s

harassment “interfer[ed] with her education,” and the entirety of

the District’s argument on whether the record supports this claim

is the single sentence that “Nicole received a B+ in M r .

Grumman’s class and grades ranging from A+ to B- in [that]

semester.” This court “is free to disregard arguments that are

not adequately developed,” like this one. Higgins v . New Balance

Athletic Shoe, Inc., 194 F.3d 2 5 2 , 260 (1st Cir. 1999).

In any event, though the Supreme Court has indicated that a

dropoff in a student’s grades “provides necessary evidence of a

potential link between her education and [the harassing]

misconduct,” Davis, 526 U.S. at 6 5 2 , it does not follow that a

student cannot show she was “effectively denied equal access to

an institution’s resources and opportunities” by gender-based

harassment unless her grades decline as a result. See Hayut v .

State Univ., 352 F.3d 733, 748 (2d Cir. 2003); Montgomery v .

Indep. Sch. Dist. N o . 709, 109 F. Supp. 2d 1081, 1094 (D. Minn.

2000) (denying summary judgment for defendant on a claim under a

state-law analog to Title IX “[a]lthough plaintiff’s grades

remained relatively average” during the period of harassment).

Without any developed argument from the District, the court

cannot conclude as a matter of law that Nicole was not

43 effectively deprived of an educational opportunity or benefit as

a result of Grumman’s harassment.20 See Hayut, 352 F.3d at 748

(overruling summary judgment for defendant on Title IX claim

where plaintiff’s testimony that “she felt humiliation and

emotional distress, did not want to attend classes, and was

unable to sleep” as a result of her professor’s harassing

comments was “enough to render [the deprivation] issue one for

the trier of fact”). Taking the record in the light most

favorable to the plaintiffs, the District is not entitled to

summary judgment on Nicole’s Title IX claim.21

20 The plaintiffs argue that, in addition to the effects of the harassment itself, Nicole was also deprived of an educational opportunity or benefit by Grumman’s continued presence as one of her teachers even after she complained. The court of appeals has mused that “[o]n some cases, merely to maintain a harasser in a position of authority over the victim, after notice of prior harassment, could create new liability” under Title IX. Wills, 184 F.3d at 2 7 . Though this theory was extensively discussed at oral argument, the court need not consider it here because the District has not challenged it in its summary judgment briefing. 21 Though the complaint asserts a Title IX claim against the District only, the plaintiffs argue in their summary judgment objection that “[a] jury could also find that Couture is personally liable.” As the language of § 1681 makes clear, however, liability under Title IX extends only to the recipient of federal funding--here, the District--not to its individual officials. See Davis, 526 U.S. at 641; Kinman v . Omaha Pub. Sch. Dist., 171 F.3d 6 0 7 , 611 (8th Cir. 1999) (“Several circuits have held that because they are not grant recipients, school officials may not be sued in their individual capacity under Title I X . ” ) .

44 B. The state-law claims

1. Breach of contract (Count 2 )

The plaintiffs claim that the Stevens High student handbook

amounts to a contract between the District and Nicole, which the

District breached through its acknowledged failure to follow the

handbook’s sexual harassment policy. The District, however,

argues that the student handbook was not an enforceable contract

as a matter of law. While the parties agree that the New

Hampshire Supreme Court has not addressed whether a student

handbook constitutes a contract, they disagree, predictably,

about how that court would rule when presented with the question.

As a federal tribunal exercising supplemental jurisdiction

over the plaintiffs’ state law claims, this court must predict

the New Hampshire Supreme Court’s future course on this issue.

See FDIC v . Ogden Corp., 202 F.3d 4 5 4 , 460-61 (1st Cir. 2000).

This task requires an “an informed prophecy of what the [New

Hampshire Supreme Court] would do in the same situation, seeking

guidance in analogous state court decisions, persuasive

adjudications by courts of sister states, learned treatises, and

public policy considerations identified in state decisional law.”

Walton v . Nalco Chem. Co., 272 F.3d 1 3 , 20 (1st Cir. 2001)

(internal quotation marks omitted). It also demands

“considerable caution” and respect for the “well-marked

45 boundaries” of New Hampshire law. Doyle v . Hasbro, Inc., 103

F.3d 186, 192 (1st Cir. 1996) (internal quotation marks omitted).

In Panto v . Moore Business Forms, 130 N.H. 730 (1988), the

New Hampshire Supreme Court ruled that, by distributing a “policy

statement” announcing that an employee’s refusal to accept a job

reassignment under particular circumstances would be treated as a

lay-off entitling him to continuing fringe benefits, the employer

was making “an offer subject to an employee’s acceptance, to be

expressed by the continued performance of his duties, upon which

an enforceable unilateral contract term will be formed.” Id. at

733-35. The court rejected “the view that what an employer

chooses to call a policy statement is immune to the customary

rules of contract formation.” Id. at 739. Provided those rules

are followed, the court held, the provisions of an employee

handbook can become the terms of an employment contract under New

Hampshire law. Id. at 739-42.

Contrary to the plaintiffs’ argument, then, New Hampshire

does not take a “liberal position” as to treating employee

handbooks as contracts: when they satisfy the principles of

contract formation, they are contracts, and when they do not,

they are not. See Smith v . F.W. Morse & Co., 76 F.3d 413, 426

(1st Cir. 1996) (reading Panto to hold that “[s]tandard contract

formation principles govern the creation and construction of such

contracts”). The plaintiffs make no effort to show how the

46 Stevens High student handbook satisfies these principles, i.e.,

that the handbook meets the legal requirements of an offer, that

Nicole properly manifested acceptance of any such offer, and that

Nicole tendered valid consideration. “Offer, acceptance, and

consideration are essential to contract formation” under New

Hampshire law. Tsiatsios v . Tsiatsios, 140 N.H. 173, 178 (1995).

To take but one of these requirements, Nicole, like all

children under 16 (as she was at the time at the time she began

her sophomore year at Stevens, arguably marking her “acceptance”

of the terms “offered” by the handbook for that academic year)

was required by law “to attend the public school to which the

child is assigned in the child’s resident district.” N.H. Rev.

Stat. Ann. § 193:1, 1 . Given the compulsory nature of Nicole’s

attendance at Stevens, the handbook could not have been a valid

contract under “[t]he well-settled rule in the field of contracts

. . . that performance of a pre-existing legal duty . . . is not

valid consideration.” In re Lloyd, Carr & Co., 617 F.2d 8 8 2 , 890

(1st Cir. 1980) (citing Restatement (First) of Contracts § 76(a)

(1932) among other authorities). New Hampshire follows this

rule. See Watkins & Son v . Carrig, 91 N.H. 459, 461 (1941);

Eleftherion v . Great Falls Mfg. Co., 84 N.H. 32 (1929). So,

unlike the employee’s continued employment after receiving the

policy statement in Panto, Nicole’s attendance, or continued

47 attendance, at Stevens could not have furnished the consideration

necessary to make the handbook a contract.

This fact alone distinguishes this case from the law in the

court of appeals, on which the plaintiffs rely, holding that “[a]

student’s relationship to his university is based in contract”

and that “[t]he relevant terms of the contractual relationship

. . . typically include language found in the university’s

student handbook.” Havlik v . Johnson & Wales Univ., 509 F.3d 2 5 ,

34 (1st Cir. 2007) (citing Mangla v . Brown Univ., 135 F.3d 8 0 , 83

(1st Cir. 1998)). As Mangla notes, 135 F.3d at 8 3 , this holding

itself derives from the decision by the court of appeals in Lyons

v . Salve Regina College, 565 F.2d 2 0 0 , 202 (1st Cir. 1977).

Lyons, applying Rhode Island law, observed the lack of precedent

from that state’s supreme court “resolving a dispute arising out

of the relationship between a private academic institution and

its students,” but concluded that Rhode Island “would adopt, in

construing the language of a claimed contract between a student

and her college or university,” id. (emphasis added), an approach

using “‘some elements of the law of contracts,’” though not

“‘rigidly . . . in all its aspects,’” id. (quoting Slaughter v .

Brigham Young Univ., 514 F.2d 6 2 2 , 626 (10th Cir. 1975)).

As the emphasized language suggests, Lyons did not consider

the nature of the relationship between a public secondary school

and its students, who, unlike their post-secondary counterparts,

48 do not decide to attend a particular institution in an act that

could in theory be deemed acceptance of the terms of its student

handbook and (together with their tuition) consideration for the

institution’s promise to adhere to those terms. Neither Lyons

nor any of the subsequent court of appeals decisions following

i t , in fact, appears to have been applied in the case of a public

secondary school. Furthermore, at least one court has

specifically declined to extend that line of authority into such

schools. Zellman ex rel. M . Z . v . Indep. Sch. Dist. N o . 2758, 594

N.W.2d 216, 219 (Minn. C t . App. 1999).

Indeed, the weight of authority holds that no contract

arises between a public secondary or elementary school and its

students as a result of its student handbook, reasoning that the

law of contracts--premised on the notion that voluntary

agreements should be enforced according to their terms--is an ill

fit for the compulsory nature of public education. See

Higginbottom ex rel. Davis v . Keithley, 103 F. Supp. 2d 1075,

1080-81 (S.D. Ind. 1999); Achman v . Chisago Lakes Indep. Sch.

Dist. N o . 2144, 45 F. Supp. 2d 6 6 4 , 670 (D. Minn. 1999); Zellman,

594 N.W.2d at 219-220; 3 James A . Rapp, Education Law § 8.01[2]

[d][ii], at 8-19 (2008). 22 This court believes that the New

22 While the plaintiffs’ superficial attacks on these cases are unconvincing, they do advance one argument of some substance: that the decision in Higgbottom relied on that court’s view that Indiana was “resolute in refusing to construe employee handbooks or guides as a source of contractual rights.” 103 F. Supp. 2d at

49 Hampshire Supreme Court would follow these cases, based on its

holding in Panto that an employee handbook is a contract only if

it passes the test for contract formation.23 Because the Stevens

handbook does not, it is not a contract as a matter of law, and

the District is entitled to summary judgment on the breach of

contract claim.

2. Discretionary function immunity

The District and Couture move for summary judgment on the

plaintiffs’ negligence and breach of fiduciary duty claims on the

basis of discretionary function immunity. In New Hampshire, the

doctrine of discretionary function immunity is a judicially

created exception to ordinary rules of tort liability, shielding

a municipality’s “acts and omissions constituting (a) the

exercise of a legislative or judicial function, and (b) the

exercise of an executive or planning function involving the

1080. But that was only part of the court’s analysis; it also reasoned that “the compulsory nature of public elementary education, which requires public schools to accept enrollment of children in their districts and mandates student attendance, militates against importation of mutual assent and consideration principles into the public elementary school context.” Id. at 1081. It is that reasoning which this court believes would be compelling to the New Hampshire Supreme Court. 23 The only authority the plaintiffs offer to the contrary, T.E. v . Linn-Mar Cmty. Sch. Dist., N o . 35077, 2000 WL 34514000 (Iowa Dist. C t . Aug. 3 0 , 2000), did not discuss or even decide whether a public high school’s student handbook could be a contract as a matter of law, but simply assumed that it was. Id. at *3-*4.

50 making of a basic policy decision which is characterized by the

high degree of official judgment or discretion.” Merrill v . City

of Manchester, 114 N.H. 7 2 2 , 729 (1974).

In applying the doctrine, then, the New Hampshire Supreme

Court “distinguish[es] between ‘policy decisions involving the

consideration of competing economic, social, and political

factors’ and ‘operational or ministerial decisions required to

implement the policy decisions.’” Everitt v . Gen. Elec. Co., 156

N.H. 2 0 2 , 211 (2007) (quoting Mahan v . N.H. Dep’t of Admin.

Servs., 141 N.H. 7 4 7 , 749-50 (1997)). That court, however, has

“declined to draw a bright line between discretionary planning

and the ministerial implementation of plans,” Mahan, 141 N.H. at

749, generally considering on a case-by-case basis whether

“[s]ubjecting [a municipality] to potential negligence liability

in response to [its] decision would be tantamount to judicial

interference with legislative or executive decision making” and

therefore upset the separation of powers. Tarbell Adm’r, Inc. v .

City of Concord, 157 N.H. 6 7 8 , 684-85 (2008).

The District and Couture maintain that all of their

allegedly tortious conduct amounts to “the exercise of an

executive or planning function” covered by discretionary function

immunity. This argument relies principally on the New Hampshire

Supreme Court’s decision in Hacking v . Town of Belmont, 143 N.H.

546 (1999), which applied the doctrine to certain negligence

51 claims against a town and school district for the plaintiff’s

injury during a school basketball game. The plaintiff alleged

multiple theories of negligence, including “that the defendants

failed to train and supervise properly their employees, coaches,

instructors, and referees to conduct the game.” Id. at 548. The

court ruled that discretionary function immunity barred this

claim, reasoning that not only the defendants’ decision to have

the basketball program, but also their “decisions regarding what

training and supervision to provide those whom the defendants

chose to run the program,” were “planning decisions requiring a

high degree of discretion.” Id. at 550. But the court declined

“to address whether the selection of the referees or coaches was

entitled to immunity” because that conduct had not been alleged

as a basis for liability. Id. at 551.

As this analysis suggests, applying discretionary function

immunity depends on whether “‘the particular conduct which caused

the injury is . . . characterized by the high degree of

discretion and judgment involved in weighing alternatives and

making choices with respect to public policy and planning.’”

Everitt (quoting Gardner v . City of Concord, 137 N.H. 253, 257

(1993)) (emphasis added). Here, as noted above, the plaintiffs

allege that the District was negligent through a number of acts

and omissions: in failing to follow the Stevens sexual

harassment policy, “to protect [Nicole] from abuse,” to properly

52 train and supervise its staff, and to “warn Plaintiff of

Grumman’s propensities,” as well as in hiring and retaining

Grumman. The plaintiffs also claim that the District breached

its fiduciary duty to Nicole “by facilitating the abuse inflicted

on her and by failing to keep her safe from its employees.”24

Discretionary function immunity shields the District from

liability for most, but not all, of this conduct.

a. Negligent training and supervision (Count 8 )

Hacking itself makes clear that the doctrine bars the

plaintiffs’ state-law tort claims insofar as they are based on

the allegedly negligent failure to train or supervise Grumman or

24 As discussed at oral argument, New Hampshire does not appear to treat the relationship between a public secondary school and its students as fiduciary in nature, characterizing it instead as “a special relationship” that gives rise to a duty enforceable in negligence (and treating the school as an ordinary employer subject to theories of negligent hiring or retention). Marquay v . Eno, 139 N.H. 7 0 8 , 716-20 (1995). While the New Hampshire Supreme Court subsequently held that “[i]n the context of sexual harassment by faculty members, the relationship between a post-secondary institution and its students is a fiduciary one, Schneider v . Plymouth State Coll., 144 N.H. 4 5 8 , 462 (1999) (emphasis added), the court explained that this holding did not rely on the “special relationship . . . between primary and secondary schools and their students” recognized in Marquay, id. at 463 (“our conclusion that a fiduciary relationship existed between the [college] and the [student] does not rest on the in loco parentis doctrine”). But this court need not decide whether, despite the fairly clear indication to the contrary in Schneider, New Hampshire recognizes a fiduciary relationship between a public secondary school and its students, because the plaintiffs’ fiduciary duty claim arises from alleged omissions that are protected by discretionary function immunity. See infra Part III.B.2.c.

53 other Stevens personnel. Given the ruling there that a school

district’s decisions on the appropriate training and supervision

for elementary school coaches and referees involve the requisite

degree of discretion to trigger the immunity, it follows here

that a school district’s decisions on the appropriate training

and supervision of high school teachers and administrators are

likewise shielded. See also Jacobson v . City of Nashua, 2002 DNH

120, 18-19 (ruling that discretionary function immunity barred a

negligence claim arising out of a city’s alleged failure “to

supervise, control, monitor and train” police officers).

b. Negligent hiring and retention (Count 7 )

The same reasoning would extend New Hampshire’s doctrine of

discretionary function immunity to a municipality’s decisions in

hiring, firing, retaining, and disciplining its employees, even

though Hacking did not ultimately reach that question. As the

court of appeals has observed, in ruling that discretionary

function immunity barred a city’s liability for its negligent

hiring of a police officer under Massachusetts law,

hiring decisions are susceptible to and involve policy analysis. An entity must weigh budgetary constraints, public perception, and economic conditions in determining the number of hires as well as who [sic] to hire. In addition, the choice between several potential employees involves the weighing of individual backgrounds, office diversity, experience, and employer intuition.

54 Crete v . City of Lowell, 418 F.3d 5 4 , 65 (1st Cir. 2005)

(footnote and internal quotation marks omitted).

As the court of appeals also observed in Crete, other

federal courts of appeals have relied on such reasoning in

applying discretionary immunity not only to hiring functions, but

to decisions on employee discipline and termination as well. Id.

at 64 (citing, among other authorities, Vickers v . United States,

228 F.3d 9 4 4 , 950-51 (9th Cir. 2000) (applying immunity to

retention claim); Richman v . Straley, 48 F.3d 1139, 1146 (10th

Cir. 1995) (applying immunity to termination claim)). Surveying

this authority, in fact, the court of appeals concluded that

“uniformly the federal circuit courts under the FTCA have found

that employer decisions such as hiring, discipline, and

termination of employees are within the discretionary function

exception.”25 Id.

25 In a statutory codification of discretionary function immunity, the FTCA (Federal Tort Claims Act) bars otherwise cognizable claims against the federal government “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of [a] federal agency or an employee of the Government.” 28 U.S.C. § 2680(a). New Hampshire’s statutory codification of the immunity, as it applies to the state and its agencies, contains nearly identical wording, N.H. Rev. Stat. Ann. § 541:B-19, I ( c ) , which the New Hampshire Supreme Court has given the same breadth as the common-law version of the doctrine applicable to municipalities. See, e.g., Mahan, 141 N.H. at 749. It follows that the New Hampshire Supreme Court would find decisions applying the FTCA’s discretionary function immunity clause instructive in applying the court’s judicially created version.

55 Furthermore, as the District points out, the overwhelming

majority of courts have ruled that state-law discretionary

function immunity bars claims based on the hiring, retention, or

discipline of public employees, including teachers and other

school personnel. See, e.g., Larson ex rel. Larson v . Miller, 76

F.3d 1446, 1457 (8th Cir. 1996) (en banc) (applying Nebraska

l a w ) ; Benedix v . Indep. Sch. Dist. N o . I-007, 2009 WL 975145, at

*3-*4 (W.D. Okla. Apr. 9, 2009); Moore v . Bd. of Educ., 300 F.

Supp. 2d 6 4 1 , 644 (N.D. Ill. 2004); Nance ex rel. Nance v .

Matthews, 622 S o . 2d 2 9 7 , 301-02 (Ala. 1993); Jarrett v . Butts,

379 S.E.2d 583, 586 (Ga. C t . App. 1989); Willoughby v . Lerbass,

388 N.W.2d 6 8 8 , 700 (Mich. C t . App. 1986); see also Crete, 418

F.3d at 65 (“most states also consider claims of negligent hiring

to be barred by the discretionary function exception”). Most of

these cases, like this one, involved claims against a school or

its officials for an employee’s abuse or other misconduct toward

a student. See Larson, 76 F.3d at 1451; Moore, 300 F. Supp. 2d

at 643 & n.2; Jarrett, 379 S.E.2d at 584-85; Willoughby, 388

N.W.2d at 691.

Against this great weight of authority, the plaintiffs rely

on a single case, Doe v . Cedar Rapids Community School District,

652 N.W.2d 439 (Iowa 2002), for the proposition that “[t]he

choice to hire, retain, and supervise a particular teacher does

not involve policy decisions entitled to protection from judicial

56 review.” Id. at 445 (emphasis added). There, the Iowa Supreme

Court reasoned that “[t]he administrative act of hiring,

retaining, and supervising an individual teacher does not involve

the careful balancing of competing interests, risks, and

advantages,” calling it “no different than a government

employee’s decision to turn left or right at a stop sign.” Id.

The court also relied on the defendant’s failure to “articulate

any policies at the heart of [its] decision to hire” the teacher

in question, pointing out that “[t]he burden is on the School to

prove its actions are entitled to the shield of discretionary

function immunity.” Id. at 446 (citing 18 Eugene McQuillin, The

Law of Municipal Corporations § 53.04.20, at 162 (3d ed. 1993)).

Whatever else may be said of the Iowa Supreme Court’s

decision in Doe, it is plainly at odds with the decisions of the

New Hampshire Supreme Court in Hacking and the court of appeals

in Crete in both reasoning and result. The Hacking court simply

recognized, without any particular showing by the defendants,

that “decisions regarding what training and supervision to

provide . . . necessarily involve the most prudent allocation of

municipal resources, and thus the weighing of competing economic,

social, and political factors.” 143 N.H. at 550 (internal

quotation marks omitted). So that court appears to share neither

its Iowa counterpart’s view that a governmental defendant must

justify the decision at issue as a policy matter in order to

57 trigger discretionary function immunity, nor its view that

individual personnel choices (at least insofar as they involve

supervision or training) are so devoid of policy considerations

as to render the doctrine generally inapplicable.

Indeed, the Hacking court cited approvingly to a number of

decisions by other courts applying discretionary function

immunity to claims for the negligent training and supervision of

an individual employee, including Phillips v . Thomas, 555 So.2d

8 1 , 85 (Ala. 1989), and Miller v . Szelenyi, 546 A.2d 1013, 1021

(Me. 1988). Miller specifically ruled, in fact, that the

doctrine immunized a state hospital supervisor’s decision to

retain a doctor despite a complaint about his treatment of a

patient, 546 A.2d at 1022--unquestionably a decision about “an

individual” employee and, moreover, strikingly similar to the

District’s complained-of actions in this case. To like effect is

Crete, where the court of appeals applied state-law discretionary

function immunity to a claim for the negligent hiring of a

particular police officer, reasoning, as just discussed, that

even an individual personnel decision implicates the policy

considerations essential to the doctrine. 418 F.3d at 6 5 . Crete

criticized the Iowa Supreme Court’s decision in Doe as “a radical

58 departure from the law of other states” without considering the

case any further.26 418 F.3d at 6 6 .

The plaintiffs offer nothing to suggest that the New

Hampshire Supreme Court would join the Iowa Supreme Court’s

“radical departure” from settled law in holding that

discretionary function immunity does not apply to individual

personnel decisions. This court predicts that the New Hampshire

Supreme Court would hold, like almost every other court to

consider the question, that discretionary function immunity

shields personnel decisions such as hiring, firing, retention,

and discipline, regardless of whether any such decision involves

just one employee. Discretionary function immunity, then, bars

the plaintiffs’ claims insofar as they arise out of the

District’s hiring, retention, or discipline of Grumman.27

26 Indeed, the very municipal law treatise on which the Doe court relied recognizes--contrary to the decision itself--that “[h]iring decisions are generally deemed discretionary.” 18 McQuillin, supra, § 53.22.10 (footnote omitted). 27 It is worth noting that, though the District has not challenged the plaintiffs’ proof on this point, the record contains no evidence to support their claim that the District was negligent in hiring Grumman--which occurred some twenty-five years before his harassment of Nicole, and nearly twenty years before any documented complaint against him.

59 c. Breach of fiduciary duty (Count 3 ) and failure “to protect” and “to warn” (Counts 6 and 9 )

By much the same reasoning, discretionary function immunity

also bars the plaintiffs’ claims against the District for

negligence in failing “to protect [Nicole] from abuse by the

School District’s employees” and “to warn Plaintiff of Grumman’s

propensities,” as well as their parallel claim that the District

breached its fiduciary duty to her “by facilitating the abuse

inflicted on her and by failing to keep her safe from its

employees.”28 While the plaintiffs, in pleading these claims, do

not identify the District’s omissions with any greater

particularity, their complaint elsewhere alleges that the

District failed in not “reassigning [Grumman] to a position that

28 The complaint alleges that the District owed Nicole a fiduciary duty “to act in good faith and due regard for her interests, to adopt and enforce practices to minimize the danger that students would be exposed to sexual harassment and abuse, to undertake measures to create, communicate and implement a well- designed grievance procedure to effectively deal with teacher misconduct, to provide an accessible and fair forum for student complaints, and to promote and create an environment in which sexual harassment is not tolerated.” Putting aside the fact that the complaint does not specifically allege any breach of this broadly asserted duty, the omission at the heart of this allegation--that, apart from its alleged failure to follow it in response to Nicole’s complaint, the District failed to have an appropriate sexual harassment policy in the first place--is protected by discretionary function immunity. See Mahan, 141 N.H. at 751 (noting that a decision on whether to impose rules, and what rules to impose, requires “an evaluation of the policy in favor of safety and the proper allocation of economic and human resources” protected as a discretionary function).

60 eliminated his contact with young girls or placing him on

administrative leave while an investigation was undertaken.”

When asked at oral argument to specify what should have been

done to protect or to warn Nicole, the plaintiffs likewise

suggested that the District should have: removed Grumman from

teaching, or at least from teaching girls; forced him to undergo

sexual harassment training; offered education to students on how

to identify and respond to teacher harassment; or provided

warnings to girls at Stevens about Grumman in particular.

Discretionary function immunity covers each of these claimed

omissions. First, as just discussed at length, the doctrine

applies to a municipality’s decisions on disciplining or training

its employees, including a particular employee. See Part

III.B.2.b, supra. Second, and relatedly, the doctrine also

applies to decisions on “what training . . . to provide”

students, because, again, such “decisions necessarily involve the

most prudent allocation of municipal resources, and thus the

weighing of competing economic, social, and political factors.”

Hacking, 143 N.H. at 550 (internal quotation marks omitted).

Third, in line with the substantial case law applying

discretionary function immunity to matters of employee

discipline, courts have ruled that the doctrine shields a

school’s communications toward that end. See Jones v . Houston

Indep. Sch. Dist., 979 F.2d 1004, 1007 (5th Cir. 1992)

61 (circulating a memo regarding a teacher’s unfitness for

employment); Upshaw v . Alvin Indep. Sch. Dist., 31 F. Supp. 2d

553, 559 (S.D. Tex. 1999) (telling a parent that a teacher had

been fired). So the doctrine encompasses the plaintiffs’ unusual

theory that the District should have resorted to warning its

students “of Grumman’s propensities,” because this could not have

been accomplished without implicating the same policy

considerations at play in other kinds of personnel decisions.

See Part III.B.2.b, supra. Discretionary function immunity thus

bars the plaintiffs’ “failure to warn” and “failure to protect

claims” insofar as they arise out of any of the omissions the

plaintiffs have identified in support of those claims.

d. Failure to follow the harassment policy (Counts 4-5)

Discretionary function immunity, however, does not extend to

the plaintiffs’ claims that the defendants were negligent in

failing to adhere to the Stevens sexual harassment policy in

response to Nicole’s complaint. Notwithstanding the doctrine,

“[a] municipality may be subject to tort liability when workers

negligently follow or fail to follow an established plan or

standards, and injuries result.” Schoff v . City of Somersworth,

137 N.H. 583, 590 (1993) (internal quotation marks omitted).

This rule follows from the widely accepted notion that “conduct

cannot be discretionary unless it involves an element of choice.

62 Thus, the discretionary function exception will not apply when a

. . . policy specifically prescribes a course of action for an

employee to follow. In this event, the employee has no rightful

option but to adhere to the directive.” Berkovitz ex rel.

Berkovitz v . United States, 486 U.S. 5 3 1 , 536 (1988) (citation

omitted).

Here, as the District and Couture have more or less

acknowledged, the Stevens sexual harassment policy expressly

deprived him, as principal, of the discretion to screen or

investigate a sexual harassment complaint on his own, mandating

instead that he immediately refer such a complaint to the

superintendent. Because the policy “specifically prescribe[d] a

course of action for [Couture] to follow,” id., discretionary

function immunity does not protect his allegedly negligent

failure to follow i t , either individually or on behalf of the

District as its agent. See Schoff, 137 N.H. at 590.

While, again, the District argues that Couture reasonably

believed that Nicole was not complaining about sexual harassment

within the meaning of the policy, that argument goes to whether

Couture’s decision was negligent, not whether it is protected by

discretionary function immunity; indeed, as discussed supra at

Part III.A.2, the District has essentially conceded, both through

its interactions with the Brodeurs prior to the commencement of

this suit and the deposition testimony of its employees

63 thereafter, that the decision was not Couture’s to make. This

admitted lack of discretion renders discretionary function

immunity inapplicable to the plaintiffs’ negligence claims

insofar as they complain of a failure to follow the sexual

harassment policy.29 See Kan. State Bank & Trust C o . v .

Specialized Transp. Servs., Inc., 819 P.2d 5 8 7 , 600-01 (Kan.

1991) (ruling that a school’s failure to follow its own reporting

policy was not a discretionary function); A v . Coffee County Bd.

of Educ., 852 S.W.2d 899, 909 (Tenn. C t . App. 1992) (similar);

cf. Does 1-4 v . Covington County Sch. Bd., 969 F. Supp. 1264,

1286 (M.D. Ala. 1997) (assuming that a principal had a non-

discretionary duty to respond to complaints under the school’s

Title IX policy, but finding that he did s o ) .

3. Recovery for emotional distress

The defendants also argue that the plaintiffs cannot recover

under New Hampshire law for their claimed emotional distress.

First, the defendants say, the evidence of their actions does not

29 The complaint pleads Count 4 , alleging a negligent failure “to enforce the rules contained in the Handbook,” against all defendants, which would include Grumman individually. The plaintiffs do not argue, however, that Grumman was negligent in violating the sexual harassment policy; instead, as discussed infra at Part III.B.3.b, they argue that he did so intentionally, which is also what they allege in the body of their complaint. The plaintiffs have therefore essentially abandoned any negligence claim against Grumman individually, if they even pled one in the first place. See Caouette v . OfficeMax, Inc., 352 F. Supp. 2d 1 3 4 , 140 (D.N.H. 2005).

64 establish intentional infliction of emotional distress as a

matter of law. Second, the defendants argue, the plaintiffs lack

the expert testimony required in New Hampshire to establish both

the physical manifestations of their claimed emotional distress

and its link to the defendants’ actions, and that, in any event,

Nicole’s parents cannot recover in negligent infliction of

emotional distress for what happened to her.

a. Intentional infliction of emotional distress (count 11)

“One who by extreme and outrageous conduct intentionally or

recklessly causes severe emotional distress to another is subject

to liability for such emotional distress.” Mikell v . Sch. Admin.

Unit N o . 3 3 , ___ N.H. ___, 2009 WL 1352408, at *3 (N.H. May 1 5 ,

2009). In Mikell, the New Hampshire Supreme Court recently

reaffirmed the formidable standard of “extreme and outrageous

conduct” necessary to impose such liability:

it is not enough that a person has ‘acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice.” Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’

Id. (quoting Restatement (Second) of Torts § 46 cmt. d, at 73

(1965)). “It is for the court to determine, in the first

instance, whether the defendant’s conduct may reasonably be

65 regarded as so extreme and so outrageous as to permit recovery”

for intentional infliction of emotional distress as a matter of

law. Restatement (Second) of Torts § 46 cmt. h, at 77 (1965)).

The court agrees with the defendants that their behavior

toward the plaintiffs was insufficiently “extreme and outrageous”

to support such a claim. Though a jury could conclude that

Couture’s (or, ultimately, the District’s) response to Nicole’s

complaint about Grumman’s behavior manifested deliberate

indifference, despite the stringency of that standard, see Part

III.A.2, supra, the test for intentional infliction of emotional

distress is even higher, as just discussed. “Except in

extraordinary circumstances, a party’s failure to respond to

complaints does not rise to the level of intentional infliction

of emotional distress.” Bowers v . Concord Opthamologic Assocs.,

PA, 2003 DNH 219, 6-7 (citing cases). 30

While, again, Couture’s and the District’s actions could be

found clearly unreasonable, they were not extraordinarily so as

to go beyond all possible bounds of decency and to be utterly

intolerable in a civilized community. See Doe v . Town of Bourne,

30 In Bowers, in fact, this court dismissed a medical technician’s intentional infliction of emotional distress claim arising out of the defendant physicians’ “alleged failure and refusal to intervene,” 2003 DNH 219, 6, in their partner’s gender-based “intentional verbal abuse” of the plaintiff, which included calling her names and belittling and demeaning her in the presence of patients, fellow staff members, and other doctors in the practice,” id. at 3 .

66 N o . 02-11363, 2004 WL 1212075, at *12-*13 (D. Mass. May 8 , 2004)

(ruling that school’s failure to inform plaintiff’s parents or

the police, or to conduct its own investigation, in response to

learning that plaintiff had been raped by another student in the

school bathroom was insufficiently extreme and outrageous to

support an intentional infliction of emotional distress claim).

Grumman’s conduct toward Nicole lends itself to much the

same analysis: though, as this court has ruled, a jury could

find Grumman’s comments “severe, pervasive, and objectively

offensive” so as to amount to actionable harassment under Title

IX, see Part III.A.3, supra, that too is a lower standard than

necessary to prevail on a claim for intentional infliction of

emotional distress. See Konefal v . Hollis/Brookline Co-op. Sch.

Dist., 143 N.H. 256, 261 (1998) (noting that “outrageous conduct”

contemplates “a great deal more” than simply “illegal and

reprehensible conduct”) (internal quotation marks omitted).

Indeed, in most cases where courts have found a teacher’s gender-

motivated conduct toward a student sufficiently extreme and

outrageous to support such a claim, it included physical abuse.

See, e.g., Doe v . D’Agostino, 367 F. Supp. 2d 1 5 7 , 173 (D. Mass.

2005); Hackett v . Fulton County Sch. Dist., 238 F. Supp. 2d 1330,

1372 (N.D. G a . 2002); Doe v . Beaumont I.S.D., 8 F. Supp. 2d 596,

602, 615 (E.D. Tex. 1998); Bustos v . Ill. Inst. of Cosmetology,

N o . 93-5980, 1994 WL 710830, at *5 (N.D. Ill. Dec. 1 5 , 1994).

67 To like effect is the case on which the plaintiffs

principally rely, Duguay v . Androscoggin Valley Hospital, N o . 95-

112, 1996 WL 157191 (D.N.H. Jan. 2 5 , 1996). There, this court

ruled that a female employee’s allegations that her male

supervisor “offensively touched her such as by blowing into her

ear and pulling on her clothes,” as well as that he “habitually,

repeatedly, and intentionally subjected her to sexually

suggestive, demeaning, and inappropriate statements,” was

sufficient--though just “[a]rguably”--to state a claim for

intentional infliction of emotional distress. Id. at *5

(internal quotation marks, bracketing, and ellipse omitted); see

also Graham v . Nadeau, N o . 2008 U.S. Dist. LEXIS 35967, at *22-

*23 (D.N.H. Apr. 1 5 , 2008) (ruling that male inmate’s complaint

of “malicious strip searches,” including placing him without

clothing in a holding tank in view of women and children for

three hours, “alleged the minimum facts necessary to state a

claim for intentional infliction of emotional distress”), rept. &

rec. adopted, 2008 U.S. Dist. LEXIS 49854 (D.N.H. June 3 0 , 2008).

This is not to say that a student cannot prevail on such a

claim as a matter of law if it arises from a teacher’s words

rather than his actions. As the plaintiffs point out, New

Hampshire recognizes that “‘[t]he extreme and outrageous

character of the conduct may arise from an abuse by the actor of

a position . . . which gives him actual or apparent authority

68 over the other, or power to affect his interests,’” such as the

student-teacher relationship. Mikell, 2009 WL 1352408, at *3

(quoting Restatement (Second) of Torts § 46 cmt. e, at 7 4 ) . But,

as Mikell cautions, it does not follow that any verbal harassment

by a teacher, “even coupled with [his] position of authority,

rises to the level of extreme and outrageous conduct necessary to

sustain a claim for intentional infliction of emotional

distress.” Id. Instead, the nature of the harassment must

transcend the “unprofessional and confrontational,” and even the

“reprehensible,” exceeding “all possible bounds of decency.” Id.

at *4 (internal quotation marks omitted).

Grumman’s comments to Nicole were unquestionably

unprofessional, and arguably reprehensible, but not beyond “all

possible bounds of decency,” even for an older man in a position

of authority as a teacher to adolescent girls. See Niles v .

Nelson, 72 F. Supp. 2d 1 3 , 23 (N.D.N.Y. 1999) (finding that a

male teacher’s classroom commentary, which included joining in

the male students’ “inappropriate sexual comments” about the

fourteen year old female plaintiff, was “puerile behavior

entirely inappropriate for a teacher” but did “not rise to the

level of extreme and outrageous such that it goes beyond all

possible bounds of decency and is utterly intolerable in a

civilized society”). As the court of appeals has observed,

“[t]he standard for making a claim of intentional infliction of

69 emotional distress is very high” in New Hampshire. Moss v . Camp

Pemigewassett, Inc., 312 F.3d 503, 511 (1st Cir. 2002). The

defendants’ conduct was insufficiently extreme and outrageous to

support the plaintiffs’ intentional infliction of emotional

distress claim as a matter of law.31

b. Negligent infliction of emotional distress (Count 10)

In addition to their many negligence theories, discussed in

Part III.B.2, supra, the plaintiffs have also brought a stand-

alone claim for negligent infliction of emotional distress. As

an initial matter, insofar as Nicole’s parents assert their own

claim for negligent infliction of emotional distress based on the

defendants’ treatment of Nicole, that claim fails. Any such

distress on the parents’ part is not “directly attributable to

the emotional impact of [their] observation or contemporaneous

sensory perception of” the defendants’ conduct, as required for

parents to recover for emotional distress from their children’s

injuries under New Hampshire law. Corso v . Merrill, 119 N.H.

647, 656 (1979). The plaintiffs’ summary judgment objection does

not even address the defendants’ argument on this point.32

31 It should be noted that the record contains no evidence even remotely suggesting that Nicole’s parents experienced “severe emotional distress,” which independently dooms their intentional infliction claim. See Konefal, 143 N.H. at 261. 32 Insofar as Nicole’s parents join in any of the other negligence claims--the complaint is unclear on this point--those

70 The defendants also argue that Nicole cannot recover for

negligent infliction of emotional distress, or emotional distress

as an element of her damages under any other negligence theory,

because she lacks the requisite expert testimony establishing the

physical manifestations of that distress and its link to the

defendants’ conduct. “To ensure that the emotional injury is

sufficiently serious to be afforded legal protection as well as

to establish causation,” the New Hampshire Supreme Court has

“repeatedly held that ‘expert testimony is required to prove

physical symptoms suffered from alleged negligent infliction of

emotional distress,’” including when a plaintiff seeks “[t]o

recover for emotional distress under a traditional negligence

theory.”33 O’Donnell v . HCA Health Services of N.H., Inc., 152

claims also fail because the defendants owed their duty of care to her, see Marquay, 139 N.H. at 716-20, not to her parents, see, e.g., Turner ex rel. Turner v . N . Panola Sch. Dist., N o . 06-0098, 2007 WL 2359773, at *4 (N.D. Miss. Aug. 1 4 , 2007); Jachetta v . Warden J t . Consol. Sch. Dist., 176 P.3d 545, 548 (Wash. C t . App. 2008). Nor, for that matter, can the parents assert their own claim under Title IX. See Rowinsky v . Bryan Indep. Sch. Dist., 80 F.3d 1006, 1009 n.4 (5th Cir. 1996), overruled on other grounds by Davis, 526 U.S. 629; Zamora v . N . Salem Cent. Sch. Dist., 414 F. Supp. 2d 4 1 8 , 427 (S.D.N.Y. 2006). This does not necessarily mean, however, that Nicole’s parents cannot recover for the private school tuition they paid on her behalf, assuming they can prove the necessary causal link to the defendants’ misconduct and overcome the other potential obstacles to that recovery. A decision on that point, if necessary, awaits further briefing. See note 1 1 , supra. 33 As the court noted at oral argument, this state-law rule does not restrict Nicole’s potential recovery for emotional distress under Title IX. See, e.g., Azimi v . Jordan’s Meats, Inc., 456 F.3d 2 2 8 , 237 (1st Cir. 2006) (noting that “medical or

71 N.H. 6 0 8 , 611-12 (2005) (quoting Silva v . Warden, N.H. State

Prison, 150 N.H. 3 7 2 , 374 (2003)); see also, e.g., Palmer v . Nan

King Rest., Inc., 147 N.H. 6 8 1 , 683-84 (2002); Thorpe v . New

Hampshire, 133 N.H. 299, 304 (1990).

The plaintiffs seek to avoid this rule here on a number of

grounds. First, relying on this court’s decision in Daroczi v .

Vermont Center for the Deaf & Hard of Hearing, Inc., 2004 DNH 027

(Muirhead, M . J . ) , they argue that, given the intentional nature

of Grumman’s conduct, they are not subject to the expert witness

requirement, which applies only to claims for emotional distress

which is “negligently caused.” In Daroczi, this court ruled that

the plaintiff’s lack of an expert witness did not prevent her

from recovering for emotional distress against her former

boarding school on theories that it had negligently hired,

retained, and supervised an employee who sexually harassed and

attempted to molest her. Id. at 24-25. The court found the rule

“that expert testimony is required ‘in all negligence cases where

emotional distress damages are claimed,’” id. at 24 (quoting

Thorpe, 133 N.H. at 3 0 4 ) , not to apply where a plaintiff “seeks

to hold the Defendant directly liable for injuries that she

other expert evidence is not required to prove emotional distress” in a Title VII case (internal bracketing and quotation marks omitted)), cert. denied, 549 U.S. 1279 (2007). Again, Title IX and Title VII are generally interpreted the same way. See note 1 9 , supra.

72 suffered as a result of Defendant’s employee’s intentionally

tortious conduct,” id. at 2 5 .

Since Daroczi, however, the New Hampshire Supreme Court has

clarified that no expert witness is necessary to recover for

emotional distress only if it arises “from direct physical injury

and/or intentional torts.” O’Donnell, 152 N.H. at 612 (internal

quotation marks omitted). To illustrate, the court cited three

of its prior decisions, each of which permitted recovery for

emotional distress, without an expert, on an intentional tort

theory against the intentional tortfeasor himself.34 Id. (citing

In re Gronvaldt, 150 N.H. 5 5 1 , 554 (2004) (action against husband

for divorce based on mental anguish caused by his physical and

verbal abuse); Silva, 150 N.H. at 374-75 (action against prison

guards for battery); Fischer v . Hooper, 143 N.H. 585, 592 (1999)

(action against wiretapper for invasion of privacy)). O’Donnell

also expressly declined to expand the exception to the expert

witness requirement beyond these cases, id., none of which

involved a negligence theory against the defendant premised on a

third party’s intentionally tortious conduct.

34 Whether New Hampshire requires expert testimony to recover for intentionally inflicted emotional distress, then, presents a different question. Though Grumman raises the issue in his summary judgment motion, the court need not decide i t , since the plaintiffs cannot sustain their intentional infliction of emotional distress claim as a matter of law. See Part III.B.3.a, supra. The plaintiffs’ reliance on Silva for the proposition that no expert testimony is needed “when mental suffering results from an intentional tort” is therefore beside the point.

73 Thus, insofar as Daroczi holds that no expert testimony is

necessary to recover for emotional distress in negligence--so

long as the negligence contributed to cause a third party to

perpetrate an intentionally tortious act against the plaintiff,

which in turn caused the emotional distress--that holding has

questionable validity in light of the state supreme court’s

subsequent decision in O’Donnell. But even assuming, dubitante,

that Daroczi remains an accurate statement of New Hampshire law,

it does not assist the plaintiffs here anyway, in light of this

court’s ruling that discretionary function immunity bars all of

their negligence theories arising out of Grumman’s intentionally

tortious conduct, i.e., his harassing comments toward Nicole.

See Parts III.B.2.a-c, supra.

The only negligence claim left unscathed by discretionary

function immunity is the claim that the District and Couture were

negligent in failing to follow the Stevens sexual harassment

policy in response to Nicole’s complaint, see Part III.B.2.d,

supra, and the plaintiffs have not argued that Grumman engaged in

any intentionally tortious conduct as a result of that

negligence, see note 7 and accompanying text, supra. What they

have alleged instead is that, due to the negligent failure to

implement the policy, Grumman was allowed to continue teaching

Nicole’s class and at Stevens in general, and that his continued

presence caused her emotional distress. See note 2 0 , supra.

74 That is a claim that seeks to hold the District and Couture

liable for an injury caused by their own negligence, not a claim

that “seeks to hold the Defendant directly liable for injuries

that she suffered as the result of Defendant’s employee’s

intentionally tortious conduct.” Daroczi, 2004 DNH 0 2 7 , at 2 5 .

So the exception recognized in Daroczi, even if still available

after O’Donnell, does not apply here.

Second, the plaintiffs argue that they need no expert

witness to testify to Nicole’s emotional distress because those

“damages are of the ‘generic kind,’ that an ordinary person would

feel in such circumstances and therefore no expert is needed,”

relying on Desclos v . Southern New Hampshire Medical Center, 153

N.H. 607 (2006). But that case held only that a plaintiff does

not impliedly waive the privilege protecting her

psychotherapeutic records simply by bringing “a damage claim for

‘generic’ mental suffering that is incident to the physical

injury” because such “suffering is in the jurors’ common

experience and does not depend upon expert evidence.” Id. at 614

(emphasis added). Desclos, then, simply applied the longstanding

rule that a plaintiff needs no expert testimony to recover for

emotional distress that accompanies physical injury negligently

caused by the defendant.35 See, e.g., Evans v . Taco Bell Corp.,

35 Again, O’Donnell expressly declined to expand the recognized exceptions to the rule requiring expert testimony to recover for emotional distress in negligence. 152 N.H. at 612.

75 2005 DNH 1 3 2 , 20-25 (extensively discussing New Hampshire law on

this point). Nicole, of course, alleges no physical injury

arising from the defendants’ negligence.

Third, the plaintiffs argue that they have whatever experts

they need in the persons of the counselor Nicole spoke with in

the spring and summer of 2006 and the therapist she saw once in

March 2007, and regularly beginning in October of that year.

There are at least three problems with this theory: (1) the

plaintiffs did not raise it until oral argument, which is too

late, see, e.g., Doe v . Friendfinder Network, Inc., 540 F. Supp.

2d 2 8 8 , 304 n.19 (D.N.H. 2008), (2) the summary judgment record

contains no admissible evidence suggesting that these providers

can testify as to any physical manifestations of Nicole’s claimed

distress or its link to the defendants’ conduct, and (3) the

plaintiffs failed to designate the providers as expert witnesses

under Rule 26(a)(2)(A) by the deadline set forth in the court-

approved discovery plan (in fact they have yet to designate them

at a l l ) , which is required despite their status as treating

professionals, see Aumand v . Dartmouth Hitchcock Med. Ctr., ___

F. Supp. 2d ___, 2009 DNH 0 6 1 , 16-19.

The mere existence of a counselor or therapist who spoke to

Nicole about her treatment by Grumman, then, does not suffice to

provide the expert testimony necessary for her to recover for

emotional distress, whether through her stand-alone negligent

76 infliction claim or her theory that Couture and the District

negligently failed to follow the policy. The defendants are

therefore entitled to summary judgment on the former claim and,

unless Nicole or her parents can recover some other form of

damages on the latter claim, see note 1 1 , supra, may be entitled

to summary judgment on that claim in its entirety as well.

IV. Conclusion

For the foregoing reasons, the defendants’ motions for

summary judgment36 are GRANTED as to counts 2-3 and 6-11, and are

DENIED as to counts 1 , 4-5, and 12 (which alleges a respondeat

superior theory still available, for now, in light of this

court’s ruling on Count 4 ) . The motions are also denied without

prejudice insofar as they challenge the plaintiffs’ remaining

damages claims. See note 1 1 , supra. Given this disposition,

Gene Grumman is TERMINATED as a defendant in this matter.

SO ORDERED.

Uni ep ed States District Judge

Dated: June 1 2 , 2009

cc: Peter E . Hutchins, Esq. Donna-Marie Cote, Esq. Diane M . Gorrow, Esq. Corey M . Belobrow, Esq.

36 Docket nos. 17 and 1 9 .