United States Court of Appeals For the First Circuit No. 19-1458
JANE DOE, a minor in and for her own behalf and in her own right; MARY DOE, parent and next friend of Jane Doe, a minor and in her own right,
Plaintiffs, Appellants,
v.
PAWTUCKET SCHOOL DEPARTMENT; CITY OF PAWTUCKET, RHODE ISLAND; PATTI DECENSO, individually and in her official capacity as Superintendent of Pawtucket School Department; PAWTUCKET SCHOOL COMMITTEE; GERARD CHARBONNEAU, in his capacity as Chairman of Pawtucket School Committee; MICHAEL ARAUJO, in his capacity as Pawtucket School Committee Member; JOANNE M. BONOLLO, in her capacity as Pawtucket School Committee Member; ERIN M. DUBE, in her capacity as Pawtucket School Committee Member; JOHN J. CROWLEY, in his capacity as Pawtucket School Committee Member; JOSEPH KNIGHT, in his capacity as Pawtucket School Committee Member; ELENA VASQUEZ, in her capacity as Pawtucket School Committee Member; LINDA GIFFORD, individually and in her official capacity as school principal of Pawtucket Learning Academy; SHAUN W. STROBEL, in his capacity as Pawtucket City Treasurer; DAVID MORTON, in his individual and official capacity as a teacher and member of the Pawtucket Learning Academy; KAREN DUBE, in her individual and official capacity as a teacher and member of the Pawtucket Learning Academy; ELIZABETH VELIS, in her individual and official capacity as a teacher and member of the Pawtucket Learning Academy; LEE RABBIT, in her individual and official capacity as a teacher and member of the Pawtucket Learning Academy; KERRI DAY, in her individual and official capacity as a teacher and member of the Pawtucket Learning Academy; SUSAN HALL, in her individual and official capacity as a teacher and member of the Pawtucket Learning Academy; MICHAELA FRATTARELLI, in her individual and official capacity as a teacher and member of the Pawtucket Learning Academy; CHRISTOPHER SWICZEWICZ, in his individual and official capacity as a teacher and member of the Pawtucket Learning Academy; THOMAS J. ANDERSON, in his individual and official capacity as a teacher and member of the Pawtucket Learning Academy,
Defendants, Appellees. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND
[Hon. John J. McConnell, Jr., Chief U.S. District Judge]
Before
Lynch, Kayatta, and Barron, Circuit Judges.
George Patrick Hovarth, Law Offices of Hovarth & Hovarth, and Edward John Mulligan on brief for appellants. Jon Mason Anderson, Brennan, Recupero, Cascione, Scungio, & McAllister, LLP, Patrick Kelly Cunningham, Marc DeSisto, DeSisto Law LLP, Sara Rapport, Whelan, Corrente, Flanders, Kinder & Siket LLP, Patrick J. McBurney, Matthew Christopher Reeber, Pannone Lopes Devereaux & O'Gara LLC, Mark P. Dolan, and Rice Dolan & Kershaw on brief for appellees.
August 6, 2020 KAYATTA, Circuit Judge. Plaintiff Jane Doe has alleged
that she was the victim of several incidents of sexual assault and
harassment while she was a student at the Pawtucket Learning
Academy ("PLA") in Pawtucket, Rhode Island. The district court
granted the defendants' motion to dismiss all of Doe's claims, and
Doe appealed. Because Doe's allegations, if true, tell a plausible
story of deliberate indifference by school officials to repeated
and severe sexual harassment, we vacate the dismissal of her claim
for a violation of Title IX, 20 U.S.C. § 1681 et seq., and allow
a somewhat narrowed version of it to proceed on remand. We affirm
the district court's dismissal of the other claims, as well as the
dismissal of all claims against the individual defendants.
I.
On this review of a dismissal under Rule 12(b)(6), "we
take the nonconclusory, nonspeculative facts contained in the
complaint as true and draw all reasonable inferences from those
facts in [Doe's] favor." Hamann v. Carpenter, 937 F.3d 86, 88
(1st Cir. 2019).
During 2016 and 2017, Doe attended the Pawtucket
Learning Academy, a public school operated by the Pawtucket School
Department. PLA had only approximately seventy students when Doe
attended. The school's six classrooms for grades 6 through 12,
the teachers, and a few staff members were all on one floor.
- 3 - For the most part, Doe's complaint contains many general
allegations that are too conclusory and/or contingent to make out
a viable claim. She repeatedly employs broad general terms such
as "sexual assault[]" and "molestation[]" without specifics. And
she speculates that school officials had "knowledge or ought to
have had knowledge" (emphasis added) of various occurrences.
Regarding several serious events, though, she does allege actual
facts.
First, in April 2016, in her physical education class "a
male gym student . . . got behind Minor Plaintiff, and simulated
sexual fornication by rubbing his genitalia area against the Minor
Plaintiff's clothed anal area, in front of the gym teacher and
class. At that time, she and/or the school contacted the police."
Second, Doe alleges that she was raped by a seventeen-
year-old PLA student named Adriel in May 2016. Adriel entered
Doe's classroom, started talking to another older student and to
Doe, and the three left the room, apparently without any response
or interference from the instructor. Adriel "pushed, guided and/or
forced" Doe into a bathroom and raped her. Doe alleges that rumors
about the incident spread throughout the school, and the day
afterward, school principal Linda Gifford said to her, "I heard
you had sex with Adriel?" The thirteen-year-old Doe responded,
"yes." The school took no measures in response.
- 4 - In June 2017, Doe was raped by an adult PLA student,
Ivander DeBurgo, whom Doe says had raped another female student
previously. Doe alleges that while she and two other students
were in a math class with a teacher after normal school hours,
DeBurgo repeatedly entered the classroom and tried to entice her
to leave with him. When the teacher told DeBurgo to leave, DeBurgo
ignored the instruction, and no steps were taken to ensure his
departure from the building or limit his access to Doe within the
building. Roughly an hour later, Doe left the classroom to use
the restroom. Shortly thereafter, the school secretary found her
huddled under the bathroom sink, having just been raped by DeBurgo.
The principal, the assistant principal, the assistant
superintendent, and the school superintendent learned of the rape
that afternoon. Their immediate reaction was to escort both
DeBurgo and Doe out of the building. They took no statements, nor
did they contact the police. Doe was left to fend for herself
with DeBurgo, who had already threatened her with further harm.
The next morning, the school resource officer learned of the rape
from students and contacted the police. At that point, Doe was
placed "under escort" and spoke to the school social worker, Karen
Dube, who told her she could "put her concerns in writing." Doe
told Dube that she was worried about retaliation, and Doe alleges
that Dube was aware of threats against her by DeBurgo and his
- 5 - friends. DeBurgo was ultimately convicted of rape and sexual
molestation against Doe in Rhode Island state court.
Finally, Doe alleges that in April 2017 a member of the
PLA faculty, David Morton, approached Doe in the school hallway
while she was riding "piggy back" with another student, and
"smacked and grabbed her butt." In the months before his assault
on Doe, Morton had touched the inner thighs of other students and
made sexual remarks to them. Doe alleges that the superintendent,
assistant superintendent, principal, and assistant principal had
known about these previous events "for some time," and even that
other teachers were sometimes present in the room when they took
place. Doe filed a criminal complaint against Morton, who was
eventually charged with misdemeanor assault.
As a result of all this, Doe alleges that she "suffered
emotional distress, post-rape traumatic syndrome, post traumatic
syndrome, [and] has needed medical care and attention." She has
also "needed to be transferred to a school system outside of the
Pawtucket School System."
II.
After three amendments, Doe's complaint marshaled five
sets of allegations collectively said to establish actionable
claims against twenty-one defendants under sixteen different
counts. The district court duly undertook the task of looking for
some wheat hidden in this basket of chaff, eventually finding none
- 6 - and dismissing the entire action. On appeal, plaintiffs have
discovered the virtue of focus, but see infra subsection II.B.,
and trained our attention on Count One of their Third Amended
Complaint, Title IX of the Education Amendments of 1972, 20 U.S.C.
§§ 1681-1688.
A.
Title IX creates an implied private right of action
against federal funding recipients for money damages caused by a
recipient's violation of its obligations under the Title. Franklin
v. Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 76 (1992); see also
Cannon v. Univ. of Chi., 441 U.S. 677, 717 (1979). Such a violation
can occur when a Title IX funding recipient is deliberately
indifferent to known acts of sexual harassment of a student by a
teacher. See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S.
274, 287–88, 290 (1998). Such a violation can also occur when a
Title IX funding recipient is deliberately indifferent to known
acts of harassment in its programs or activities, including severe
and pervasive acts of harassment perpetrated by fellow students in
circumstances under the recipient's substantial control. Davis ex
rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 644–
46, 650 (1999) (finding liability "where [the district is]
deliberately indifferent to sexual harassment, of which [it has]
actual knowledge, that is so severe, pervasive, and objectively
offensive that it can be said to deprive the victims of access to
- 7 - the educational opportunities or benefits provided by the
school").
In reviewing the sufficiency of a complaint under
Rule 12(b)(6), our analysis turns on whether the complaint
plausibly alleges that the plaintiff suffered harassment or
assault that met the standards set out above. In other words, we
simply assume that well-pleaded facts are true and ask whether
such facts and inferences reasonably drawn from those facts
plausibly state a claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (requiring "sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its face'" (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007))). We review
the district court's analysis of the defendants' motion de novo.
Penate v. Hanchett, 944 F.3d 358, 365 (1st Cir. 2019).
We agree with the defendants and the district court that
Doe's complaint does not allege facts that make plausible any claim
that school district officials were deliberately indifferent to
her harassment up to the date of her encounter with Adriel. We
can fairly infer from the fact that the police were called to the
school after the incident in gym class that the school officials
had actual knowledge of that incident after the fact. But the
immediately ensuing police presence at the school suggests that
school officials did take responsive action, and Doe develops no
argument for why their response was so unreasonable as to
- 8 - demonstrate deliberate indifference to her harassment. See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived."). And as for Doe's
more general allegations of assault leading up to that point, she
has failed to allege that any school official had actual knowledge
of them: The complaint avers only that the "superintendent and
principal and other teachers" "ha[d] knowledge or ought to have
had knowledge" of the events. Such constructive knowledge is
plainly insufficient. See Gebser, 524 U.S. at 290 (requiring
actual notice to an "appropriate person," 20 U.S.C. § 1682, who is
"an official of the recipient entity with authority to take
corrective action to end the discrimination").
That brings us to the alleged rape by Adriel in the
school bathroom. The complaint specifically alleges that when
asked by the principal whether she had sex with Adriel, Doe told
her that she did. And the complaint alleges that the principal
did nothing in response to learning that information. The
defendants do not dispute that a failure to take some action to
reduce the likelihood of further harassment would serve as evidence
of deliberate indifference. They instead argue that the school
had no notice of the rape. In particular, they maintain that Doe
denied having sex with Adriel when the principal asked her about
it and that her allegation to the contrary is implausible because,
- 9 - had the principal known of such sexual contact with a thirteen-
year-old, she would have jumped into action to deal with it.
We agree with defendants that a school principal not
indifferent to the situation would have certainly responded in
some way to reduce the likelihood of any repetition. So if we
were to assume that the principal was not indifferent to Doe's
plight, the fact that the principal did nothing would suggest that
she was unaware of any sexual contact, as she claims. But in
reviewing the adequacy of a complaint, we cannot assume that the
principal was not indifferent. That is a matter of proof, not
assumption. See Hamann, 937 F.3d at 88 (explaining that on a
motion to dismiss, we take all reasonable inferences from the
factual allegations in the plaintiff's favor). To proceed,
instead, as defendants urge would be to assume away the case --
and other such cases -- by deeming the inactions of an allegedly
indifferent person to be proof that the person was not indifferent.
The defendants also point to medical and police reports
supposedly showing that Doe denied having had sex with Adriel. In
ruling against Doe, the district court also relied on those two
reports, describing them as showing Doe's "denying [to the
principal and others] that anything sexual had taken place."
The district court's reliance on those reports was
twice-flawed. First, a motion to dismiss under Rule 12(b)(6)
generally provides no occasion upon which to consider documents
- 10 - other than the complaint. There are exceptions, to be sure. See
Young v. Wells Fargo Bank, N.A., 717 F.3d 224, 231 (1st Cir. 2013)
(allowing the court to review "any documents attached to the
complaint or incorporated by reference therein"); Clorox Co. P.R.
v. Proctor & Gamble Commercial Co., 228 F.3d 24, 32 (1st Cir. 2000)
(holding that the court may consider a document "integral to or
explicitly relied upon in the complaint, even though not attached
to the complaint" (quoting Shaw v. Digit. Equip. Corp., 82 F.3d
1194, 1220 (1st Cir. 1996))); Beddall v. State St. Bank & Tr. Co.,
137 F.3d 12, 17 (1st Cir. 1998) (explaining that when "a
complaint's factual allegations are expressly linked to -- and
admittedly dependent upon -- a document (the authenticity of which
is not challenged), that document effectively merges into the
pleadings and the trial court can review it in deciding a motion
to dismiss under Rule 12(b)(6)"); see also Flores v. OneWest Bank,
F.S.B., 886 F.3d 160, 167 (1st Cir. 2018) (explaining the extent
of the possible exceptions). But none of those exceptions applied
here: The medical and police reports are not expressly referenced
in the complaint, the complaint does not rely upon them or
incorporate them, and the allegations in the complaint are not
"dependent" upon their contents. Second, even were it proper to
consider the reports, nothing in them makes it implausible that
Doe told the principal what she alleges. Nor do they directly
- 11 - contradict the allegations in the complaint in any other way.1
Even if they did purport to include a direct denial from Doe, we
would have a battle of proof and credibility, not a failure to
allege a claim.
Doe does not allege that the principal knew the sex
between Doe and Adriel was forced; however, at the time of the
rape Doe was thirteen and Adriel was seventeen. Given the age
difference, and the fact that the principal likely knew that Doe
had been previously subjected to an assault in gym class serious
enough to warrant a visit by the police to the school, Doe may be
able to make the case that once they learned of the sexual
encounter with Adriel, school officials not indifferent to the
abuse would have investigated or recognized Doe's apparent
vulnerability to sexual assault and made at least some attempt to
protect her going forward. This is an allegation of a failure "to
take corrective action." Gebser, 524 U.S. at 290.
1 The police report states that Gifford told police that Doe had "denied anything sexual happening." There is no indication of Doe admitting that she had denied it, however, and the complaint clearly alleges the opposite. The district court may not take Gifford's word above Doe's at the pleading stage. As for the medical report, we are unable to locate any admission by Doe that she denied anything sexual had taken place with Adriel. The report does reflect Doe saying that Adriel had "touched her over and under her clothes with his hand." That is hardly a statement that she was not raped, or an admission that she failed to tell PLA staff about it.
- 12 - The deliberate indifference standard of course requires
that the funding recipient's actions -- or failure to act -- caused
the student's subsequent harassment in some way or made the student
"liable or vulnerable" to harassment. Davis, 526 U.S. at 645; see
also Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165, 172–73
(1st Cir. 2007) (noting that the standard in Davis "sweeps more
situations" than simple but-for causation and reasoning that a
complaint "theoretically could form a basis for Title IX
liability" where "post-notice interactions between the victim and
the harasser have been alleged"), rev'd on other grounds, 555 U.S.
246 (2009). So there could be no causal connection between Doe's
rape by Adriel and the school officials' subsequent alleged
indifference to it. The school therefore bears no liability for
directly causing that abuse, at least under Title IX.2 On the
other hand, Doe may be able to make out a claim under Title IX
based on the school's indifference from that point forward to her
demonstrated vulnerability to abuse by older male students. For
instance, she may be able to show that, had the school behaved as
Title IX demands, DeBurgo's subsequent repeated improper entries
into her classroom in the presence of a teacher would have been
2 However, even if the events of April and May 2016 do not themselves provide a basis for a cause of action, they may still be considered as evidence with respect to the Title IX claims that do survive.
- 13 - dealt with very differently, frustrating DeBurgo's attempt to rape
her in the school.
It is true that funding recipients are not required to
have perfect foresight or manage all student interactions
expertly. See Davis, 526 U.S. at 648 (permitting liability only
where a funding recipient's "response to the harassment or lack
thereof is clearly unreasonable in light of the known
circumstances"); see also id. at 649 ("This is not a mere
'reasonableness' standard . . . ."); Porto v. Town of Tewksbury,
488 F.3d 67, 74 (1st Cir. 2007) (requiring that deliberate
indifference not be evaluated by hindsight). But here, by failing
to take any action to stem the tide of assaults against Doe, it is
plausible that PLA officials "'disregarded a known or obvious
consequence of [their] action' or inaction" and thus contributed
to her likelihood of sexual assault and rape. Porto, 488 F.3d at
73 (emphasis omitted) (quoting Bd. of the Cnty. Comm'rs v. Brown,
520 U.S. 397, 410 (1997)). How this fleshes out in discovery
remains to be seen.
The defendants additionally argue that the student-on-
student harassment Doe faced was not sufficiently severe and
pervasive to create Title IX liability. See Davis, 526 U.S. at
651. But Doe has alleged that she was assaulted in physical
education class and then raped two times in the subsequent months
-- hardly a case of a one-off interaction with a rogue student, or
- 14 - mere childish teasing. See Morgan v. Town of Lexington, 823 F.3d
737, 745 (1st Cir. 2016) (finding "pulling down of [the
plaintiff's] pants" to be mere "bullying" and not sufficiently
"severe"); see also Davis, 526 U.S. at 652 (explaining that teasing
and bullying are not sufficient to create a Title IX claim).
Harassment need only be severe enough to "undermine[] and detract[]
from the victim's educational experience" such that the victim is
"effectively denied equal access to an institution's resources and
opportunities." Davis, 526 U.S. at 651. There is no requirement
that the victim entirely leave the recipient's programs
immediately in order to have a viable Title IX claim, nor is there
anything in Doe's complaint that requires us to infer that her
educational experience was not undermined. To the contrary, Doe
alleges that she "suffered emotional distress, post-rape traumatic
syndrome, post traumatic syndrome, [and] has needed medical care
and attention."
Beyond the student-on-student assaults that Doe has
alleged, she also tries to plead that an assault by PLA teacher
David Morton violated her Title IX rights. Doe has alleged that
Morton repeatedly harassed or assaulted other students; that four
different identified school officials knew of the incidents (the
superintendent, assistant superintendent, principal, and assistant
principal) "for some time"; and that the school did nothing to
prevent Morton from sexually assaulting Doe as well. Put simply:
- 15 - If the allegations are true, PLA had ample notice of Morton's
behavior, and it failed to do anything about it.
The defendants argue that Morton's assault on Doe was
nevertheless not sufficiently severe or pervasive to form the basis
of Title IX liability, citing a handful of roughly similar
district-court cases. See Francoeur v. D.L., No. 3:15cv953, 2017
WL 4247385, at *6 (D. Conn. Sept. 25, 2017) (addressing student-
on-student harassment); DeCecco v. Univ. of S.C., 918 F. Supp. 2d
471, 511–12 (D.S.C. 2013) (finding that one instance of sexual
touching by a college athletic coach was not severe or pervasive);
Gregg v. N.Y. State Dep't of Tax'n & Fin., No. 97 CIV. 1408, 1999
WL 225534, at *12 (S.D.N.Y. Apr. 19, 1999) (addressing severity
and pervasiveness in the workplace under Title VII).
Our controlling precedent primarily discusses the
severity and pervasiveness requirement in the context of student-
on-student harassment. See, e.g., Davis, 526 U.S. at 651–53;
Morgan, 823 F.3d at 745. While Gebser does not expressly address
severity and pervasiveness in the context of teacher-on-student
harassment, see 524 U.S. at 290–92, some degree of severity or
pervasiveness must be present in order for harassment to result in
"exclu[sion]" or "discrimination" under Title IX, 20 U.S.C.
§ 1681(a) ("No person . . . shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected
- 16 - to discrimination under any education program or activity
receiving Federal financial assistance . . . .").
Conduct that might not be actionable under Title IX if
perpetrated by a student might be deemed more likely to exclude,
or discriminate against, the potential targets of the conduct if
perpetrated by a person in authority. Here, we have an allegation
that the school allowed a male teacher to touch numerous female
students on the thighs and buttocks with impunity. If that is the
case, then it is plausible that, depending on how the details
develop in discovery, a factfinder could find the conduct severe
and pervasive enough to result in excluding, or discriminating
against, a victim of that behavior.
Additionally, Doe's complaint challenges the cumulative
impact of the various assaults upon her during her tenure at PLA,
with the assault by the teacher coming after the DeBurgo rape,
finally leading to her removal from the school. Intentionally (it
is alleged) leaving a student-groping teacher in a small six-room
school in which a young female student had already been subjected
to three sexual assaults might be viewed by a factfinder --
depending on the other evidence that develops -- as further
evidence of the school's deliberate indifference to the nature of
the student's plight and the resulting severity and pervasiveness
of the abuse.
- 17 - B.
There are two other loose ends to tie up -- Doe's claims
under state law and 42 U.S.C. § 1983, and the applicability of
Doe's claims to the individual defendants. As to the latter, Doe
has conceded she is not pursuing any Title IX claims against any
individuals, nor could she. See Davis, 526 U.S. at 641 ("The
government's enforcement power may only be exercised against the
funding recipient, and we have not extended damages liability under
Title IX to parties outside the scope of this power." (internal
citation omitted)). As to the former, Doe's opening brief on
appeal presented no argument at all for challenging the dismissal
of her state law and § 1983 claims. She therefore has waived any
such challenge. See United States v. Tosi, 897 F.3d 12, 15 (1st
Cir. 2018) ("[A]rguments available at the outset but raised for
the first time in a reply brief need not be considered."); United
States v. Torres, 162 F.3d 6, 11 (1st Cir. 1998); see also Walsh
v. TelTech Sys., Inc., 821 F.3d 155, 162 n.4 (1st Cir. 2016)
(holding that an argument for emotional-distress damages raised
for the first time in a reply brief is waived).3 What remains are
only Doe's Title IX claims against the City of Pawtucket and the
Pawtucket School Department for damages resulting from the
3 We therefore also deny as moot Defendants' motion seeking to strike from Doe's reply brief a belated attempt to revive her state law and § 1983 claims.
- 18 - school's alleged deliberate indifference commencing with its
reaction to the first alleged rape.
III.
For the reasons explained above, we vacate in part the
entry of judgment against Doe on her Title IX claim against the
City and its school department, and we otherwise affirm the
dismissal of Doe's claims. Each party shall bear their own costs.
- 19 -