UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Elizabeth Tveter and Holly Tveter
v. Case No. 16-cv-329-PB Opinion No. 2018 DNH 148
Derry Cooperative School District SAU #10, et al.
MEMORANDUM AND ORDER
Elizabeth Tveter, a former student at Pinkerton Academy,
and her mother, Holly Tveter, have sued Pinkerton Academy, the
Derry School District, and eleven School District and Pinkerton
employees. The Tveters argue that the defendants denied
Elizabeth her right to a Free and Appropriate Public Education
(FAPE) under the Individuals with Disabilities Education Act
(IDEA), and discriminated against her, harassed her, and
retaliated against her in violation of the Americans with
Disabilities Act (ADA), the Rehabilitation Act, Title IX, the
Fourteenth Amendment, and New Hampshire law. Defendants have
challenged the Tveters’ amended complaint with motions to
dismiss (Doc. No. 44, 45, 46, 64).
I. BACKGROUND
A. Factual Background
Elizabeth Tveter enrolled as a Pinkerton Academy student in the fall of 2012. 1 Doc. No. 40 at 9. In January 2014, she
suffered a severe head injury while playing field hockey on a
club team unaffiliated with Pinkerton. Id. As a result of that
injury, Elizabeth became disabled. Her claims stem from the way
in which she was treated by school officials, teachers, and
students after she became disabled.
1. Educational Services
In late January 2014, after it became clear that Elizabeth
was disabled and would not be able to return to school in the
near future, Holly Tveter asked Pinkerton to provide homework
and tutoring services for her daughter so that she could
continue her education as she recovered. Id. at 9-10. Holly
contended that Elizabeth was entitled to these accommodations
under § 504 of the Rehabilitation Act of 1973, codified in 29
U.S.C. § 794. Doc No. 40 at 9-10. Pinkerton Guidance Counselor
John Chappell denied Holly’s request because Elizabeth was an
honor student. Id. at 10. Pinkerton did not thereafter provide
any tutoring or educational assistance for Elizabeth until April
2014, when the school changed its position and developed a § 504
plan to accommodate her disability. Id. at 10.
1 Pinkerton is a private school in Derry, New Hampshire that is organized as a nonprofit corporation. In re Pinkerton Academy, 155 N.H. 1, 3 (2007). Doc. No. 40 at 3. Derry, Chester, and Hampstead pay Pinkerton to provide a public education to students who live in those towns. Id. at 3.
2 Elizabeth attempted to return to school on a full-time
basis in the fall of 2014, but soon switched to a part-time
schedule. In November, she again attempted to return to school
as a full-time student. School officials, however, incorrectly
told Holly that Elizabeth’s § 504 plan prohibited her from
attending school full time. Id. When Elizabeth nevertheless
attempted to attend classes without permission, her teachers
physically blocked her from entering their classrooms. Id. at
15.
In December 2014, Pinkerton Academic Dean Christopher
Harper called Holly and Elizabeth into school for a meeting to
address Elizabeth’s § 504 plan. Id. at 15. The school,
however, neglected to inform the Tveters in advance that the
meeting was being called to address Elizabeth’s plan. Id. It
also failed to have a teacher present at the meeting, failed to
have an attendance sheet for the meeting, and failed to provide
the Tveters with a written explanation of their § 504 rights.
Id. Elizabeth’s § 504 team agreed after the meeting to provide
her with a speech-to-text device, but the school never followed
through on its commitment. Id. at 123. The school also failed
to provide her with teachers’ notes. Holly was dissatisfied
with the meeting and filed a discrimination complaint on
Elizabeth’s behalf with the Office for Civil Rights in the U.S.
Department of Justice later that month. Id. at 16.
3 Shortly after Holly filed her discrimination complaint,
Pinkerton Headmaster Gerald Morse allegedly retaliated against
the Tveters by informing officials at the New Hampshire Division
for Children, Youth, and Families (DCYF) that Elizabeth was in
danger because Holly had not been taking her to the doctor to
treat her head injury. Id. at 146. On April 4, 2015, DCYF
investigated the Tveters and found no wrongdoing. Id. at 20.
School officials permitted Elizabeth to return to campus
full time in May 2015, but they still prohibited her from
attending her normal class schedule. Id. Instead, they
required her to spend three and a half hours each day in the
library, without instruction. Id. In October, Elizabeth was
reinjured and forced to again leave school when another member
of the field hockey team hit her in the head with a ball. Id.
at 27. After Elizabeth was reinjured, school officials did not
give her any classwork assignments, teachers’ notes, or homework
for the rest of the semester. Id. Elizabeth attempted to
return to school in January 2016, but she was injured again
almost immediately when another student struck her in the head
with a ball in gym class. Id. at 27. She did not go back to
school thereafter, but instead was permitted to complete her
schoolwork from home.
In February 2016, the school agreed to provide Elizabeth
with a hearing on her § 504 plan. Doc. No. 40 at 28. The
4 hearing officer did not allow Elizabeth to submit evidence
within five days of the hearing, did not give her money to copy
documents that were necessary to present her case, permitted
school officials to admit records from Holly’s divorce, did not
allow Elizabeth to present claims that were not based on § 504,
did not allow Holly to complete her cross examination of certain
witnesses, and did not take Holly’s own unspecified disability
into account. Doc. No. 40 at 90-92.
2. Athletics
a. Discrimination
Elizabeth attempted to try out for the field hockey team
when she returned to school in the fall of 2014, but the field
hockey coach initially refused to allow her to join the team
because of her disability. Although the coach later changed his
mind and added her to the team, he told her she would be removed
if she missed more than three practices even though non-disabled
students were not subjected to the same attendance requirement.
School officials also initially attempted to block
Elizabeth from joining the tennis team in 2015 because of her
disability. The school eventually relented, however, and she
was placed on the junior varsity team. When Elizabeth made the
varsity team the following spring, her coach required her to
wear a different colored uniform shirt from the uniforms worn by
the non-disabled members of the team. Doc. No. 40 at 29.
5 b. Harassment by Students
After Elizabeth returned to the field hockey team in the
fall of 2014, a group of teammates forced her to remove her
uniform shirt while at a game. Doc. No. 40 at 12-13. Elizabeth
was left wearing only her undergarments, and her teammates
laughed at her. Id. at 13. On another occasion, Elizabeth’s
skirt was “forcibly removed in public by the same group of
girls.” Id. On third occasion, some of her teammates forcibly
removed her socks while riding the bus to a field hockey game,
and took them away from her. Id. A coach was sitting just a
few feet away when this third incident occurred. Id.
In January 2015, Guidance Counselor John Chappell
approached Elizabeth in a school hallway and discussed
Elizabeth’s “personal situation” with her in front of other
students. Id. at 17. After Chappell’s talk with Elizabeth, the
students who heard their discussion called Elizabeth derogatory
names relating to her disability. Id. at 18.
c. Harassment by Athletic Director
In April 2015, Pinkerton Athletic Director Timothy Powers
watched Elizabeth during her tennis matches and followed her as
she changed courts. Id. at 21. Powers approached Elizabeth
after one practice, brushed his shoulder against hers, and
followed her as she ran from him. Id. On another occasion,
Powers physically bumped into Elizabeth at a school ice cream
6 social. Id. at 24. In July 2016, Powers stood outside a
classroom where Elizabeth was receiving tutoring and stared at
her. Id. at 30.
B. Procedural History
Defendants challenged the Tveters’ complaints with motions
to dismiss. Doc. No. 18, 21, 34. In response, Elizabeth and
Holly filed objections that cited new facts and causes of
action. Doc. No. 23, 35. Several defendants responded with
motions to strike the Tveters’ objections. Doc. No. 25, 26.
Because the Tveters were attempting to present new factual
assertions and new claims to supplement their complaint, I
instructed them to file an amended complaint and denied
defendants’ motions to dismiss without prejudice. Doc. No. 39.
The Tveters then filed an amended complaint that asserted twelve
different causes of action against thirteen defendants. Doc.
No. 40. All of the defendants filed timely motions to dismiss
the amended complaint.
II. ANALYSIS
The Tveters assert claims based on the IDEA, the ADA, the
Rehabilitation Act, the Fourteenth Amendment’s equal protection
and due process clauses, and various state law causes of action.
Defendants argue that I lack subject matter jurisdiction to
consider the Tveters’ claims because they failed to comply with
7 the IDEA’s exhaustion requirement. They also assert that any of
the Tveters’ claims that are not subject to the exhaustion
requirement fail to state viable claims for relief.
A. The Exhaustion Requirement
The IDEA’s exhaustion provision states:
Nothing in [the IDEA] shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the [ADA], Title V of the Rehabilitation Act [including § 504], or other federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under [the IDEA], the [IDEA’s administrative procedures] shall be exhausted to the same extent as would be required had the action been brought under [the IDEA].
Fry v. Napoleon Community Schools, 137 S.Ct. 743, 750
(2017)(alteration in original)(quoting 20 U.S.C. § 1415 (l)).
This requirement covers not only IDEA claims, but also claims
based on the ADA, the Rehabilitation Act, the Constitution, and
similar laws to the extent that the plaintiff is seeking relief
for the denial of a FAPE. Id. at 753. In determining whether
the exhaustion requirement has been met, a court must look to
the substance of the plaintiff’s claims rather than the
artfulness of her pleading. Id. The duty to exhaust
administrative remedies applies both to claims for injunctive
relief and claims for damages even though the IDEA does not
provide a private right to sue for damages. Frazier v.
Fairhaven Sch. Comm., 276 F.3d 52, 60 (1st Cir. 2002).
8 The IDEA defines a FAPE broadly to include “special
education and related services.” 20 U.S.C. § 1401(a). The term
is thus plainly broad enough to encompass the Tveters’ claims
that Elizabeth was improperly denied classroom instruction,
teachers’ notes, homework, assistive devices, tutoring, and
proper procedures for pursuing her claims. 2 See generally,
Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 238-39 (2009).
A more difficult question is presented by the claims that
stem from Elizabeth’s participation in school sports.
Defendants suggest that these claims are subject to the
exhaustion requirement because Elizabeth’s right to a FAPE
includes a right to “related services,” 20 U.S.C. § 1401(9), and
the right to related services necessarily includes a right to
“recreation,” 20 U.S.C. §1401(26)(A). I am unpersuaded by this
argument. Although participation in school sports can be a
component of a student’s right to a FAPE in certain
2 These claims are mostly set out in counts 4, 5, and 6 of the complaint. Specifically, Elizabeth claims that the defendants failed to provide her with homework, tutoring, or any instruction while she was out of school due to her disability in 2014, 2015, and 2016 (Doc. No. 40 at 120); prevented her from returning to class after she had sufficiently recovered from her head injury (Id. at 121); failed to include Holly in the December 2014 meeting to modify Elizabeth’s § 504 plan (Id. at 122); failed to give Elizabeth credit for some of her completed schoolwork (Id. at 122-123); and failed to provide her a “speech-to-text” device in accordance with her § 504 plan (Id. at 123).
9 circumstances, the statutory definition of “related services”
provides that such services are an essential component of a FAPE
only when they “may be required to assist a child with a
disability to benefit from special education. . . .” Id.; see
Meares v. Rim of the World Unified School District, 269
F.Supp.3d 1041, 1052-53 (C.D. Cal. 2016). The Tveters have not
argued that Elizabeth was attempting to participate in school
sports to further her educational goals. Nor did she have an
individualized education program (IEP) that mandated
participation in sports. Also significantly, the defendants do
not point to any evidence that would support a claim that
Elizabeth’s participation in sports was a necessary component of
her right to a FAPE. Given the unique circumstances of this
case, therefore, the Tveters’ sports-related claims are not
subject to the exhaustion requirement because they do not seek
relief for the denial of Elizabeth’s right to a FAPE.
The Tveters argue that none of their claims are barred by
the exhaustion requirement because they participated in a Ҥ 504
due process hearing.” Doc. No. 40 at 28-29. This argument
fails because a party’s participation in a general “due process
hearing” is not sufficient to satisfy the exhaustion
requirement. Weber v. Cranston Sch. Comm., 212 F.3d 41, 53 (1st
Cir. 2000)(“IDEA’s mandate is explicit: plaintiffs must exhaust
IDEA’s impartial due process hearing in order to bring a civil
10 action under subchapter II of IDEA . . . state and federal
complaint procedures other than the IDEA due process hearing do
not suffice for exhaustion purposes.”).
The Tveters alternatively argue that they are not required
to comply with the exhaustion requirement because it would have
been futile to seek relief under the IDEA. The principal basis
for their futility argument is their claim that “[p]laintiffs
have requested numerous services and intervention[s] from the
New Hampshire Department of Education time and again only to be
told that they cannot help Elizabeth because she is a 504
student not an IEP and that she did not qualify for IDEA
services.” Doc. No. 60 at 23; see Doc. No. 40 at 16. I reject
this argument. The Tveters cannot satisfy the futility
exception merely by claiming that the New Hampshire Department
of Education informed them that Elizabeth did not qualify for
IDEA services. Before a child can be provided with special
education services under the IDEA, a local educational agency
such as Pinkerton must conduct an individualized evaluation of
the child. 20 U.S.C. § 1414(a)(1). A parent cannot skip this
vital step in the IDEA process and immediately request a due
process hearing from the state. See C.G. ex rel. A.S. v. Five
Town Cmty Sch. Dist., 513 F.3d 279, 285 (1st Cir. 2008)
(outlining the procedural requirements for a parent to request
and challenge an IEP). In the present case, the Tveters did
11 just that. Their inability to obtain a due process hearing from
the state stemmed from their failure to seek an IDEA evaluation
from Pinkerton rather than the failure of the IDEA to provide
them with a right to relief. Accordingly, they are in no
position to invoke futility as an exception to the exhaustion
requirement. 3
In summary, because the Tveters failed to comply with the
exhaustion requirement, their claims that stem from the
defendants’ alleged failure to provide educational services to
Elizabeth are dismissed. The Tveters’ sports-related claims are
not subject to the exhaustion requirement.
B. Remaining Claims
Defendants argue that any of the Tveters’ sports-related
3 Although Holly does not press the point, she might have argued more narrowly that her claim that Pinkerton unlawfully retaliated against her after she filed her discrimination complaint with the Department of Justice is saved by the futility exception because an IDEA proceeding could not effectively address her retaliation injury. The First Circuit evaluated a similar contention in Weber v Cranston School District, 212 F.3d 41 (1st Cir. 2000). In that case, the plaintiff claimed, among other things, that the defendants retaliated against her by “threatening to report her to the state child welfare agency.” Id. at 44. The court determined that the plaintiff’s retaliation claim was subject to the exhaustion requirement and rejected an argument that futility excused her failure to exhaust her IDEA remedies. Id. at 52. The Tveters have failed to present any futility arguments that were not considered and rejected in Weber. Accordingly, applying the court’s reasoning in Weber, “[i]n light of the arguments made [I] must conclude that [the Tveters] had to comply with the exhaustion requirement of § 1451(1).” Id.
12 claims must be dismissed for failure to state a viable claim for
relief. I address these claims by first considering the
Tveters’ discrimination, harassment, and retaliation claims
under the ADA and the Rehabilitation Act. I then turn to their
Title IX claims, their constitutional claims, and their state
law claims.
1. ADA and Rehabilitation Act Claims
a. Discrimination Claims
The Tveters claim that the defendants are liable for
discrimination because they treated her differently than her
non-disabled teammates during her involvement in sports. Doc.
No. 40 at 137-140.
To prove a discrimination claim under Title II of the ADA,
a plaintiff must prove: “(1) that he is a qualified individual
with a disability; (2) that he was either excluded from
participation or denied the benefits of some public entity’s
services, programs, or activities or was otherwise discriminated
against; and (3) that such exclusion, denial of benefits, or
discrimination was by reason of the plaintiff’s disability.”
Parker v. Universidad de Puerto Rico, 225 F.3d 1, 5 (1st Cir.
2000) (citing 42 U.S.C. § 12132). A discrimination claim under
the Rehabilitation Act similarly requires a plaintiff to prove:
“(1) that she is disabled; (2) that she sought services from a
federally funded entity; (3) that she was ‘otherwise qualified’
13 to receive those services; and (4) that she was declined those
services solely by reason . . . of her disability.” Lesley v.
Hee Man Chie, 250 F.3d 47, 52-53 (1st Cir. 2001)(citing 29
U.S.C. § 794(a)).
Defendants do not challenge the sufficiency of Elizabeth’s
discrimination claims against Pinkerton, but they do assert that
she has failed to state a viable claim against the School
District defendants. I agree with the latter contention. The
School District is a separate legal entity and the Tveters do
not allege sufficient facts in the amended complaint to support
a plausible claim that the School District was a culpable
participant in Pinkerton’s alleged discrimination. Accordingly,
the Tveters’ discrimination claims against the School District
are dismissed. All of the Tveters’ ADA and Rehabilitation Act
claims against the individual defendants are also dismissed
because neither the ADA nor the Rehabilitation Act permit
individual capacity actions. Gross v. Landry, No. 17-cv-297,
2017 WL 5509995, at *5 (D. Me. Nov. 17, 2017); Abbot v. Town of
Salem, 2006 DNH 012, 4; Garcia v. S.U.N.Y. Health Sciences
Center, 280 F.3d 98, 107 (2d Cir. 2001). Holly’s ADA and
Rehabilitation Act claims also fail because it was Elizabeth,
not Holly, who was allegedly injured by Pinkerton’s alleged
discrimination and harassment.
14 b. Harassment Claims
The Tveters next claim that Pinkerton and the School
District are liable for harassment because the defendants failed
to prevent Elizabeth’s teammates from bullying her on multiple
occasions because of her disability.
“To state a cognizable claim for hostile learning
environment harassment under the ADA and Rehabilitation Act, a
plaintiff must allege: (1) that she is a member of a protected
group, (2) that she has been subject to unwelcome harassment,
(3) that the harassment is based on a protected characteristic,
her disability, (4) that the harassment is sufficiently severe
or pervasive that it alters the conditions of her education and
creates an abusive educational environment, and (5) that there
is a basis for institutional liability.” Guckenberger v. Boston
University, 957 F. Supp. 306, 314 (D. Mass. 1997). The basis
for institutional liability can include “deliberate
indifference” to “student-on-student wrongdoing.” S.B. ex rel.
A.L. v. Bd. of Educ. of Harford Cty, 819 F.3d 69, 74-75 (4th
Cir. 2016).
Elizabeth alleges that her teammates forcibly removed her
clothing, leaving her undergarments exposed, during at least two
games. On one such occasion, after her shirt was removed, the
other girls laughed at her because she was slow to react, a
symptom of her disability. Moreover, they forcibly removed her
15 socks at least one time. Another day at school, several
students called Elizabeth a derogatory name for a student in a
special education program. Elizabeth and Holly complained to
Pinkerton officials, making them aware of the situation, and yet
they did not take any steps to remedy the harassment. These
allegations are minimally sufficient to state a viable claim for
harassment under the ADA and the Rehabilitation Act against
Pinkerton.
The Tveters do not allege that the School District had any
direct role in policing student-on-student harassment at
Pinkerton and they barely even allege that the School District
knew about the harassment. See Doc. No. 40 at 13. Therefore,
Elizabeth has not sufficiently stated a claim for harassment
under the ADA and § 504 against the School District.
c. Retaliation
The Tveters also claim that Pinkerton and the School
District are liable for retaliation because they failed to stop
Elizabeth’s teammates from harassing her on the basis of her
disability after being told of the harassment.
To establish a prima facie retaliation claim under either
the ADA or the Rehabilitation Act, a plaintiff must demonstrate
that “(1) he or she engaged in protected conduct, (2) he or she
was subject to adverse action by the defendant, and (3) there
was a causal connection between the protected conduct and the
16 adverse action.” D.B. ex rel. Elizabeth B. v. Esposito, 675
F.3d 26, 41 (1st Cir. 2012); Palmquist v. Shinseki, 689 F.3d 66,
70 (1st Cir. 2012).
Here, Elizabeth engaged in the “protected activity” of
complaining about the other students’ disability harassment.
Her complaint made Pinkerton aware of the harassment. The
“action disadvantageous to the actor” was Pinkerton’s failure to
act on Elizabeth’s complaints of disability harassment. See
Colon-Fontanez v. Municipality of San Juan, 660 F.3d 17, 37 (1st
Cir. 2011) (“toleration of harassment” is an adverse action that
can satisfy that element of a claim for retaliation under Title
I of the ADA). The Tveters allege that the school failed to
intervene to prevent further harassment by her teammates,
despite knowing it had occurred in the past. This is minimally
sufficient to allege a retaliatory motive. See id. Therefore,
Elizabeth has stated ADA and § 504 retaliation claims against
Pinkerton for its toleration of the bullying by other students.
Because she has failed to allege sufficient facts to support a
claim that the School District was a culpable participant in the
harassment, her claim against the School District is dismissed.
2. Title IX
The Tveters next claim that Elizabeth was subjected to
sexual harassment in violation of Title IX when her teammates
forcibly removed her clothing and Athletic Director Powers
17 followed her around school. They also claim after Elizabeth was
subject to retaliation under Title IX when she told Pinkerton
that Powers was sexually harassing her. I reject these claims.
a. Sexual Harassment by Students
Title IX states, “No person in the United States shall, on
the basis of sex, be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any
education program or activity receiving Federal financial
assistance. . . .” 20 U.S.C. § 1681(a). Courts have
interpreted this language to prohibit two types of sexual
harassment: “quid pro quo” harassment, where the perpetrator
demands a sexual act from the victim in order for the victim to
enjoy some benefit, and “hostile environment” harassment, where
the perpetrator commits acts of a sexual nature that are
“sufficiently severe and pervasive to compromise or interfere
with educational opportunities normally available to students.”
Frazier, 276 F.3d at 65.
Either form of harassment requires proof that the plaintiff
was harmed because of her sex. Higgins v. New Balance Athletic
Shoe, Inc., 194 F.3d 252, 258 (1st Cir. 1999). “The plaintiff
must prove that the conduct at issue was not merely tinged with
offensive sexual connotations, but in fact constituted
discrimination because of sex.” Id. (internal quotations and
citations omitted). In Morgan v. Town of Lexington, 138
18 F.Supp.3d 82, 94-95 (D. Mass. 2015), the court found that the
act of a group of students pulling down the victim’s pants three
times in front of other students was “tinged with offensive
sexual connotations,” but nonetheless did not rise to the level
of sexual harassment because the act was not done “because of
sex.”
The Tveters have alleged that Elizabeth’s field hockey
teammates repeatedly forced her to remove her shirt while in
public, and forced her to remove her socks at least once while
in the presence of her coach. While these actions are improper,
there is no indication that the students took the actions
because of Elizabeth’s sex. Therefore, the Tveters have not
alleged a viable sexual harassment claim based on the students’
alleged harassment.
b. Harassment by Powers
The Tveters claim that Athletic Director Timothy Powers
sexually harassed Elizabeth over the course of many months by
watching her play tennis while standing at a distance, following
her as she changed courts during tennis matches, bumping into
her twice, and looking at her classroom while she was receiving
tutoring. 4 Doc. No. 40 at 140-143. The Tveters argue that the
4 The Tveters assert new facts to support their sexual harassment claim against Athletic Director Powers in their oppositions to the defendants’ motions to dismiss the amended complaint. Doc. No. 59 at 36-37, 39; Doc. No. 60 at 37. Elizabeth and Holly
19 defendants are liable for Powers’ sexual harassment because they
knew about this ongoing sexual harassment and did nothing to
stop it. Doc. No. 40 at 143.
“Hostile environment” harassment occurs under Title IX
where the perpetrator commits acts of a sexual nature that are
“sufficiently severe and pervasive to compromise or interfere
with educational opportunities normally available to students.”
In Frazier, the First Circuit held that a school discipline
matron’s act of observing victim going to the bathroom was not
sexual harassment. Id. Similarly, in Keskinidis v. University
of Massachusetts, Boston, 76 F. Supp. 3d 254, 255 (D. Mass.
2014), the court stated that a teacher’s actions at a three-
hour-long closed-door meeting with a student where he implied
that “something could be done about her grade,” while “rubbing
his groin region,” and repeatedly preventing her from leaving
did not constitute hostile environment sexual harassment.
The Tveters allege that Athletic Director Powers “watched”
Elizabeth play tennis, “bumped into” her one time at a school
social event, and peered in through a classroom window one time.
This behavior is not sufficiently severe or pervasive to
have had numerous opportunities to amend their complaint with additional facts prior to the filing of these oppositions. Therefore, I do not consider the new facts alleged in the oppositions to the motions to dismiss.
20 constitute sexual harassment. Because there was no sexual
harassment, I dismiss the Tveters’ claim that Elizabeth was
sexually harassed by Athletic Director Powers.
The Tveters argue that the defendants’ failure to stop
Powers’ sexual harassment, after they informed them of the
harassment, supports a retaliation claim in violation of Title
IX.
To recover for retaliation under Title IX, a plaintiff must
show “that she engaged in activity protected by Title IX, that
the alleged retaliator knew of the protected activity, that the
alleged retaliator subsequently undertook some action
disadvantageous to the actor, and that a retaliatory motive
played a substantial part in prompting the adverse action.”
Frazier, 276 F.3d at 67. A plaintiff can prove that the
defendant knew of the protected activity and “undertook some
action disadvantageous to the actor,” by showing that the
defendant knew of and tolerated ongoing sexual harassment.
Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 23, 26 (1st
Cir. 2002) (“toleration of harassment” is an adverse action that
can satisfy that element of a claim for retaliation under Title
VII of the Civil Rights Act, which is evaluated under the same
standard as Title IX).
21 The Tveters argue that the defendants’ adverse action is
the toleration of ongoing sexual harassment, with knowledge that
the harassment is occurring. But, as stated above, Powers’
actions do not qualify as sexual harassment. Therefore,
toleration of these actions is not an adverse action, and their
retaliation claim fails.
3. Constitutional Claims
The Tveters invoke 42 U.S.C. § 1983 in bringing multiple
claims against the defendants under the Fourteenth Amendment’s
equal protection and due process clauses. They claim that
Elizabeth’s field hockey and tennis coaches prohibited her from
playing on the varsity field hockey and tennis teams, subjected
her to stricter rules than her non-disabled teammates, and made
her wear a different uniform from her non-disabled teammates
because of her disability, in violation of her equal protection
rights. Doc. No. 40 at 137-140. They argue that the defendants
violated Elizabeth’s right to equal protection by failing to
prevent her field hockey teammates from bullying her. Doc. No.
40 at 100-104; 156-157. They also claim that this failure to
prevent Elizabeth’s teammates from bullying her is a violation
of her substantive due process rights. Doc. No. 40 at 85.
The First Circuit has held that Pinkerton is not a state
actor for the purposes of § 1983. Johnson v. Pinkerton Academy,
861 F.2d 335, 337-38 (1st Cir. 1988). Accordingly, the
22 plaintiffs have failed to state viable constitutional claims
against either Pinkerton or any of its employees. This leaves
only the Tveters’ constitutional claims against the School
District and Superintendent Laura Nelson.
1. Equal Protection
To prove a violation of the equal protection clause on the
basis of disability discrimination, a plaintiff must show that:
(1) the defendant was a governmental actor; (2) the defendant
intentionally treated the plaintiff differently from similarly
situated individuals; and (3) the defendant lacked a rational
basis for the disparate treatment. Toledo v. Sanchez, 454 F.3d
24, 33 (1st Cir. 2006) (“The disabled are not a suspect class
for equal protection purposes.”).
The Tveters’ equal protection claims against the School
District and Superintendent Nelson must be dismissed because the
Tveters have failed to allege a plausible claim that either
defendant intentionally discriminated against the defendants on
the basis of Elizabeth’s disability. Therefore, I dismiss the
Tveters’ equal protection claims against all defendants.
2. Due Process
The Tveters also claim that the School District’s failure
to prevent Elizabeth’s teammates from bullying her violates her
due process rights. In some instances, an institution’s failure
to protect a student from violence by other students can support
23 a viable substantive due process claim. See Thomas v. Town of
Chelmsford, 267 F. Supp. 3d 279, 297 (D. Mass. 2017). But
viable claims of this sort are rare and only arise when the
school knew of a risk of extreme student-on-student violence and
the school’s own behavior “shocks the conscience.” See id. at
298-99 (a public school’s decision to house a student in a bunk
house with known bullies, while also knowing that those bullies
had urinated in the student’s cleats on a previous occasion, did
not sufficiently “shock-the-conscience” to rise to the level of
deliberate indifference, notwithstanding the horrific result of
that decision, i.e. the student was raped with a broom handle).
The Tveters’ allegations do not come close to alleging the
type of egregious actions taken by the school that are required
to support a substantive due process violation. Therefore, I
dismiss their due process claims for failure to state a claim.
E. State Law Claims
The Tveters have also asserted New Hampshire state law
claims for negligence, breach of fiduciary duty, premises
liability, and loss of consortium. Most of these claims fail in
whole or in part for reasons I have already discussed. Their
claims that stem from Elizabeth’s request for educational
services are subject to the IDEA’s exhaustion requirement.
Their claims based on gender harassment and retaliation fail
because the Tveters have not pleaded plausible claims for relief
24 based on these theories. Their claims against the School
District and its employees fail because the Tveters have not
pleaded plausible claims that any of these defendants were
culpable participants in Pinkerton’s alleged wrongdoing.
Holly’s claims fail because it was Elizabeth, rather than Holly,
who was injured by defendants’ alleged misconduct. This leaves
only claims that are based on Pinkerton’s toleration of
harassment of Elizabeth by other members of the field hockey
team.
The New Hampshire Supreme Court has recognized that
secondary schools such as Pinkerton “share a special
relationship with students entrusted to their care which imposes
upon them certain duties of reasonable supervision.” Marquay v.
Eno, 139 N.H. 708, 717 (1995); see also Gauthier v Manchester,
168 N.H. 143, 147 (2015). Not every harm that befalls a student
while in a school’s care, however, will support a claim for
negligence. The court has explained that the duty of reasonable
supervision extends “to only those periods of time when parental
protection is compromised, and only to those risks that are
reasonably foreseeable.” Mikell v Sch. Admin. Unit #33, 158
N.H. 723, 731 (2009). Further, only school employees who have
supervisory authority over students can be held liable for a
breach of this duty. Marquay, 130 N.H. at 717-18. Although the
New Hampshire Supreme Court has not expressly held that the
25 special relationship between secondary schools and their
students can give rise to a duty to prevent discriminatory
harassment by other students, the court has held that colleges
owe fiduciary duties to their students in certain circumstances
to prevent discriminatory harassment by faculty members.
Schneider v. Plymouth State College, 144 N.H. 458, 463 (1999).
Because the special relationship that exists between secondary
schools and their students is at least as protective of students
as the fiduciary relationship that protects college students, a
similar duty applies to secondary schools, at least in
circumstances such as those at issue in Schneider.
Defendants present only a conclusory challenge to
Elizabeth’s negligence claim and it is impossible to conclude
from the limited argument they have presented that the amended
complaint fails to state a viable claim for relief against
Pinkerton and the coach who allegedly witnessed the harassment.
Accordingly, I refuse to dismiss Elizabeth’s negligence claim
against Pinkerton and Coach Resmini. 5
The Tveters’ remaining state law claims are obviously
deficient. Their breach of fiduciary duty claim must be
dismissed because the New Hampshire Supreme Court has declined
5 To the extent that the Tveters assert negligence claims against other individual defendants, they have failed to plead sufficient facts to support plausible claims against those defendants.
26 to recognize that secondary schools owe fiduciary duties to
their students. See Marquay, 138 N.H. at 717; Brodeur v.
Claremont Sch. Dist., 626 F. Supp. 2d 195, 219 n.24 (D. N.H.
2009). Their premises liability claim fails because this case
does not arise from the improper maintenance and operation of
Pinkerton’s property. See Rallis v. Demoulas Super Markets,
Inc., 159 N.H. 95, 99 (2009). Finally, Holly’s loss of
consortium claim fails because loss of consortium between
parents and children is not a valid cause of action in New
Hampshire. Sciliano v. Capitol City Shows, 124 N.H. 719, 728
(1984).
IV. CONCLUSION
All of the Tveters’ claims are dismissed except Elizabeth’s
sports-related ADA and Rehabilitation Act discrimination,
harassment, and retaliation claims against Pinkerton and her
negligence claims against Pinkerton and her former field hockey
coach, Jennifer Resmini.
SO ORDERED.
/s/ Paul Barbadoro _______ Paul Barbadoro United States District Judge
July 20, 2018
cc: Elizabeth Tveter, pro se Holly Tveter, pro se
27 Dona Feeney, Esq. Joshua S. Hilliard, Esq. Alison M. Minutelli, Esq. Dean B. Eggert, Esq. S. David Siff, Esq.