UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Michael and Ginger Fortin on behalf of Minor Child, TF
v. Civil No. 15-cv-179-JL Opinion No. 2017 DNH 193P Hollis School District and Lisa Keehan
MEMORANDUM ORDER
The school district defendant’s liability in this
discrimination case turns on whether it may be held vicariously
liable under Title II of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12131 et seq., for the actions of one of
its employees of which, the parties agree, it was not aware.
Lisa Keehan was a paraprofessional employed by the Hollis School
District to work one-on-one with TF, a child diagnosed with
autism. During a videorecorded classroom interaction, Keehan
grabbed and tugged TF’s ear. Michael and Ginger Fortin, TF’s
parents, bring this action on his behalf, asserting disability
discrimination claims against Hollis and a claim against both
Hollis and Keehan for common-law assault and battery. Hollis
has moved for summary judgment on the federal statutory claims,
arguing that it may not be held liable for Keehan’s actions
when, as the plaintiffs concede, it was unaware of them. The court has jurisdiction over this matter under 28 U.S.C.
§ 1331 (federal question). After hearing oral argument, the
court grants Hollis’s motion in part and denies it in part. It
may not, as it argues, be held directly liable for Keehan’s
actions absent knowledge that those actions occurred. It may,
however, be held vicariously liable for those same actions under
the doctrine of respondeat superior if Keehan intentionally
discriminated against TF on the basis of his disability, an
issue that cannot be resolved at summary judgment.
Applicable legal standard
“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). The moving party must “assert the absence of a
genuine issue of material fact and then support that assertion
by affidavits, admissions, or other materials of evidentiary
quality.” Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st
Cir. 2003). “A genuine issue is one that could be resolved in
favor of either party, and a material fact is one that has the
potential of affecting the outcome of the case.” Vera v.
McHugh, 622 F.3d 17, 26 (1st Cir. 2010) (internal quotation
omitted).
2 Once the movant has made the requisite showing, “the burden
shifts to the summary judgment target to demonstrate that a
trialworthy issue exists.” Id. The nonmoving party “‘may not
rest upon the mere allegations or denials of [the] pleading, but
must set forth specific facts showing that there is a genuine
issue’ of material fact as to each issue upon which he or she
would bear the ultimate burden of proof at trial.” Santiago-
Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52–53 (1st
Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256 (1986)).
As it is obligated to do in the summary judgment context,
the court “rehearse[s] the facts in the light most favorable to
the nonmoving party (here, the plaintiff), consistent with
record support,” and gives him “the benefit of all reasonable
inferences that those facts will bear.” Noviello v. City of
Boston, 398 F.3d 76, 82 (1st Cir. 2005) (internal citation
omitted). The following background takes this approach.
Background
The minor on whose behalf this action was brought, TF, was
born in 2005. He has been diagnosed with autism, and has speech
and language disorders and a seizure disorder. In 2010, he
began attending kindergarten five afternoons a week at the
Hollis Primary School. The District, with input from his
3 parents, developed an Individualized Education Plan (“IEP”) for
TF and assembled a team of teachers, counselors, and other
professionals to assist in his education. The District also
assigned him a one-on-one paraprofessional during school hours.
Defendant Keehan served as one of his paraprofessionals during
the relevant time period.
On May 28, 2014, toward the end of TF’s third-grade year,
Keehan, reacting to TF’s perceived lack of responsiveness,
reached across a table and pulled his ear. Keehan was working
with TF behind a screen or partition, which she often did
because he could easily become distracted. On this particular
afternoon, another member of TF’s IEP team, Sherri Harris,
videotaped their interaction by holding a camera over the
partition.1 Harris viewed the footage the next day. She
immediately brought it to the attention of the school’s
administrator, who sent Keehan home and reported the incident to
the District’s Director of Student Services, Amy Rowe. Rowe
notified Ms. Fortin, showed her the video, and gave her a copy.
After a brief period of administrative leave, Keehan resigned
effective June 5, 2014.
1 According to the District, videotaping TF in the classroom “was part of developing his NH ALPS Alternate Assessment portfolio,” and thus was not a unique occurrence. Defendant’s Mem. (doc. no. 28-1) at 7.
4 The parties dispute whether Keehan engaged in similar
behavior with TF prior to this incident. The plaintiffs contend
that “the assault shown in the videotape was not an isolated
act,” which Hollis alleges it was, “but part of an ongoing
pattern of abuse against TF.”2 They do not dispute, however,
that Hollis “lacked prior notice of Lisa Keehan engaging in
assaults against TF . . . .”3
The plaintiffs filed this lawsuit on May 18, 2015. They
brought claims under § 504 of the Rehabilitation Act, 29 U.S.C.
§ 794, (Count 1) and Title II of the ADA (Count 2) against
Hollis, and a claim for assault and battery (Count 3) against
both defendants. Hollis moved for summary judgment on Counts 1
and 2. In their objection, the plaintiffs stated an intention
to dismiss their Rehabilitation Act claim with prejudice4 and
disavowed any “failure to provide services” claim under the ADA
2 Plaintiffs’ Obj. (doc. no. 31-1) at 5. As evidence of this, the plaintiffs cite, among other things, see infra Part III.B.2, Keehan’s own admissions to Rowe that she had physically forced his hands off of a table and forced him to his knees earlier that same day, as well as a belief that grabbing TF’s ear or hair to get him to sit down was permitted by school district policy. Plaintiffs’ Obj. (doc. no. 31-1) at 4 (citing Rowe Dep. (doc. no. 31-5) at 67-68, 70). 3 Id. at 3. 4 Plaintiffs’ Obj. (doc. no. 31-1) at 2-3 (“[T]o simplify the legal issues, Plaintiff will file a Motion to withdraw Count I with prejudice.”). Plaintiffs’ counsel confirmed this withdrawal at oral argument.
5 separate from their disability discrimination claim.5 This
leaves before the court only the question of whether Hollis may
be held liable for Keehan’s actions under Title II of the ADA.
Analysis
Title II of the ADA provides that: “no qualified
individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public
entity, or be subjected to discrimination by any such entity.”
42 U.S.C. § 12132. Pursuant to the statute’s plain language, a
plaintiff seeking to recover under Title II of the ADA must
establish:
(1) that he is a qualified individual with a disability;
(2) that he was either excluded from participation in 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). “[P]rivate individuals may recover compensatory damages
5 Id. at 8-9 (“The Court does not need to decide the legal sufficiency of this [failure to provide services] claim because Plaintiff does not allege it as an independent cause of action.”).
6 under § 504 and [ADA] Title II only for intentional
discrimination.”6 Nieves-Márquez v. Puerto Rico, 353 F.3d 108,
126 (1st Cir. 2003) (citing Alexander v. Sandoval, 532 U.S. 275,
280–81 (2001)).
The parties here agree, for purposes of this motion, that
TF is a qualified individual with a disability. The plaintiffs
allege the second two elements are met because TF was
discriminated against by reason of his disability when Keehan
used physical force to punish him.7 Hollis generally disputes
that use of physical force in this instance amounted to
disability-based discrimination,8 but focuses its arguments on
whether it may be held liable -- directly or vicariously -- for
Keehan’s actions.9 The court, likewise focusing on that issue,
concludes that, though Hollis may not be held directly liable
for those actions, it may face vicarious liability for an
employee’s intentional discrimination against TF on the basis of
his disability.
6 The plaintiffs seek only compensatory damages. See Compl. (doc. no. 1) at 6. 7 See Compl. (doc. no. 1) ¶ 33. 8 See Defendant’s Reply (doc. no. 33) at 4-8. 9 See Defendant’s Mem. (doc. no. 28-1) at 15-22.
7 A. Direct liability
In order to demonstrate intentional discrimination under
Title II of the ADA, most Courts of Appeals that have addressed
the question require the plaintiff to show at least “that a
defendant was deliberately indifferent to his statutory rights.”
McCullum v. Orlando Reg’l Healthcare Sys., Inc., 768 F.3d 1135,
1146–47 (11th Cir. 2014); see also J.V. v. Albuquerque Pub.
Sch., 813 F.3d 1289, 1298 (10th Cir. 2016) (“We have recognized
that ‘intentional discrimination can be inferred from a
defendant’s deliberate indifference to the strong likelihood
that pursuit of its questioned policies will likely result in a
violation of federally protected rights.’” (citation omitted));
S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248,
263 (3d Cir. 2013) (“We now follow in the footsteps of a
majority of our sister courts and hold that a showing of
deliberate indifference may satisfy a claim for compensatory
damages under § 504 of the RA and § 202 of the ADA.”); Meagley
v. City of Little Rock, 639 F.3d 384, 389 (8th Cir. 2011) (“The
district court decided that deliberate indifference was the
appropriate standard for showing intentional discrimination in
this type of case. A number of other circuits have so ruled,
and we agree.”); S.S. v. E. Kentucky Univ., 532 F.3d 445, 454
(6th Cir. 2008) (applying “deliberate indifference” standard);
Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001),
8 as amended on denial of reh’g (Oct. 11, 2001) (“To recover
monetary damages under Title II of the ADA or the Rehabilitation
Act, a plaintiff must prove intentional discrimination on the
part of the defendant. . . . We now determine that the
deliberate indifference standard applies.”); Bartlett v. New
York State Bd. of Law Examiners, 156 F.3d 321, 331 (2d Cir.
1998), judgment vacated on other grounds, 527 U.S. 1031 (1999)
(“[I]ntentional discrimination may be inferred when a
‘policymaker acted with at least deliberate indifference to the
strong likelihood that a violation of federally protected rights
will result from the implementation of the [challenged] policy .
. . [or] custom.’” (quoting Ferguson v. City of Phoenix, 931 F.
Supp. 688, 697 (D. Ariz. 1996)) (alterations in original)).10
The First Circuit Court of Appeals has not directly
addressed the question of which standard applies to show
intentional discrimination by the school district under the ADA
when a school district employee acts against a child with a
disability. It has, however, suggested that a plaintiff “may”
need to make “some showing of deliberate indifference not
10Several of these decisions require that a “policymaker” act with deliberate indifference, or that the institution act with deliberate indifference that its “policies” would violate a plaintiff’s rights. E.g., Durrell, 729 F.3d at 263; Bartlett, 156 F.3d at 331. Neither party has argued, here, that liability must be so limited.
9 required by” the Individuals with Disabilities Education Act
(IDEA), 20 U.S.C. §§ 1400–1491, to recover under § 504 of the
Rehabilitation Act. Nieves-Márquez, 353 F.3d at 125 n.17.
Because the First Circuit Court of Appeals, “[i]n applying Title
II [of the ADA]. . . rel[ies] interchangeably on decisional law
applying § 504,” Parker, 225 F.3d at 4, this court may
reasonably assume that it would apply at least the “deliberate
indifference” standard to ADA-based discrimination claims. See
also id. at 4 & n.2 (noting that Title II of the ADA “is modeled
on § 504 of the Rehabilitation Act,” and “essentially extends
the reach of § 504 to state and local governmental entities that
do not receive federal financial assistance.”).
Under similar circumstances, the First Circuit Court of
Appeals has required an even more exacting showing to
demonstrate intentional discrimination. Specifically, the court
distinguished between the requisite showing to prove claims
brought under IDEA for a school district’s failure to provide a
free appropriate public education (FAPE) from discrimination
claims brought under § 504 of the Rehabilitation Act and
Title II of the ADA for the same actions. To prevail on the
former, it explained, “a plaintiff must show that he or she has
a qualifying disability and has been denied a FAPE,” whereas to
prevail on the latter, “a plaintiff must make an additional
showing that the denial resulted from a disability-based
10 animus.” D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 40
(1st Cir. 2012). See also Durrell, 729 F.3d at 263
(characterizing the First Circuit Court of Appeals’s decision in
Nieves-Márquez as “suggest[ing] that plaintiffs seeking
compensatory damages [under the ADA] must demonstrate a higher
showing of intentional discrimination than deliberate
indifference, such as discriminatory animus.”).
This court need not decide definitively on which standard
governs because the plaintiffs concede that they are unable to
make the requisite showing under even the lower, “deliberate
indifference” standard.11 See Doe v. Bradshaw, 203 F. Supp. 3d
168, 191 (D. Mass. 2016) (Woodlock, J.) (interpreting Nieves-
Márquez and Esposito to require at least deliberate indifference
on part of school district under Title II of the ADA and
performing analysis under that standard). “Deliberate
indifference requires both knowledge that a harm to a federally
protected right is substantially likely, and a failure to act
upon that the likelihood.” Duvall, 260 F.3d at 1139 (citing
City of Canton v. Harris, 489 U.S. 378, 389 (1988)); see also
Santiago v. Puerto Rico, 655 F.3d 61, 73 (1st Cir. 2011) (in the
Title IX context, “the deliberate indifference standard . . .
demands that [the defendant] be shown to have had actual
11 Plaintiffs’ Obj. (doc. no. 31-1) at 2.
11 knowledge of the harassment” and to have failed to take remedial
action). The plaintiffs here concede that Hollis “was unaware
of the assaults [on TF] until after they occurred.”12 Absent
such knowledge, Hollis cannot have been deliberately indifferent
to the actions taken against TF by its employee. There is,
accordingly, no dispute of material fact as to whether Hollis
intentionally discriminated against TF.
B. Vicarious liability
Recognizing the difficulty of proving Hollis’s deliberate
indifference, the plaintiffs argue that Hollis is instead
“strictly responsible for the acts of [its] agent,” so long as
the agent, as distinct from the principal, intended to
discriminate against TF -- which, plaintiffs contend, Keehan
did.13 Hollis contends that such vicarious liability does not
apply under Title II of the ADA and that, even if it did, the
plaintiffs have not raised a question of material fact as to
whether Keehan violated TF’s rights under the ADA.
12 Plaintiffs’ Obj. (doc. no. 31-1) at 2. 13Id. As they point out, see Plaintiffs’ Reply (doc. no. 34) at 2, and as discussed infra Part III.B.2, the question of Keehan’s intent is one for the jury.
12 1. Availability of vicarious liability
Several Courts of Appeals have concluded that “that when a
plaintiff asserts a cause of action against an employer-
municipality, under either the ADA or the [Rehabilitation Act],
the public entity is liable for the vicarious acts of any of its
employees as specifically provided by the ADA.” Delano-Pyle v.
Victoria Cty., 302 F.3d 567, 574–75 (5th Cir. 2002) (citing
Duvall, 260 F.3d at 1141; Silk v. City of Chicago, 194 F.3d 788,
806 (7th Cir. 1999); Rosen v. Montgomery Cty., 121 F.3d 154, 157
(4th Cir. 1997); Mason v. Stallings, 82 F.3d 1007, 1009 (11th
Cir. 1996)). Though the First Circuit Court of Appeals has not
addressed the question, and the Supreme Court recently declined
to do so, City & Cty. of San Francisco, Calif. v. Sheehan, 135
S. Ct. 1765, 1773–74 (2015), courts in this Circuit have
acknowledged that an employer may be held vicariously liable for
an employee’s violation of § 504 of the Rehabilitation Act,
Penney v. Town of Middleton, 888 F. Supp. 332, 340 (D.N.H. 1994)
(Barbadoro, J.); Glanz v. Vernick, 756 F. Supp. 632, 636–37 (D.
Mass. 1991). It must be acknowledged that these decisions
predate the Supreme Court’s holding in Gebser v. Lago Vista
Indep. Sch. Dist., 524 U.S. 274, 290 (1998), that Title IX, a
funding statute,14 does not support vicarious liability. Courts
14Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq., § 504 of the Rehabilitation Act, and Title II
13 have more recently taken Gebser into account and concluded that
vicarious liability may yet be available under the ADA and
Rehabilitation Act. See, e.g., Reed v. State of Illinois,
No. 12-CV-7274, 2016 WL 2622312, at *3 (N.D. Ill. May 9, 2016)
(concluding, after considering Gebser and relevant Seventh
Circuit precedent, that vicarious liability may apply).
Under circumstances almost identical to this case, where a
teacher physically assaulted an autistic student, the District
Court for the Northern District of California recently concluded
that the school district “is liable in respondeat superior for
the acts of its employees” under Title II of the ADA for the
abuse so long as the plaintiff demonstrated “that the
perpetrator of the alleged abuse,” that is, the teacher “was
deliberately indifferent to her rights.” K.T. v. Pittsburg
Unified Sch. Dist., 219 F. Supp. 3d 970, 981 (N.D. Cal. 2016).
of the ADA all share similar wording with Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. The remedies available under the ADA and the Rehabilitation Act are drawn from Title VI. 29 U.S.C. § 794a (§ 504 incorporates Title VI's remedies); 42 U.S.C. § 12133 (Title II incorporates § 504's remedies). Title VI, § 504, and Title IX were all enacted through Congress’s power under the Spending Clause, U.S. Const. art. I, § 8, cl. 1. See Gebser, 524 U.S. at 287.
Title II of the ADA, on the other hand, like Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(a), was enacted under the power granted Congress through § 5 of the Fourteenth Amendment. See Tennessee v. Lane, 541 U.S. 509, 533-34 (2004).
14 Hollis argues that the Supreme Court’s exclusion of such
vicarious liability under the similarly-worded Title IX in
Gebser, 524 U.S. at 290, should extend to the § 504 of the
Rehabilitation Act and Title II of the ADA. The Supreme Court
concluded that “Congress did not intend to allow recovery in
damages” under Title IX or the similarly-enacted Title VI “where
liability rests solely on principles of vicarious liability or
constructive notice,” in part because an entity receiving
federal funding ought be afforded an opportunity to remediate
discrimination by its employees before having its funding
revoked. Id. at 287-88. “That contractual framework
distinguishes Title IX from Title VII, which is framed in terms
not of a condition but of an outright prohibition,” regardless
of federal funding. Id. at 286.
As the plaintiffs point out, Title II of the ADA, like
Title VII, was enacted under the power granted to Congress by
§ 5 of the Fourteenth Amendment and is an outright prohibition
on discrimination. They argue, therefore, that the court should
look to Title VII, which permits an employer to be held
vicariously liable “[w]hen a supervisor’s harassment of an
employee results in a ‘tangible employment action against the
employee’ . . . .”15 Agusty-Reyes v. Dep’t of Educ. of Puerto
15Hollis argues that, even if such vicarious liability applied in this case, it could not be held so liable because Keehan is
15 Rico, 601 F.3d 45, 53 (1st Cir. 2010) (quoting Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 764 (1998)). The
plaintiffs have not, however, cited a single case in which any
court has applied Title VII’s respondeat superior standard to
the Title II context.
The court is thus reluctant to wade into the question of
whether Title II of the ADA more closely resembles Title IX,
which it does in structure, or Title VII, which it does in
Constitutional provision under which Congress authorized the
statute. Most relevant to this court is the fact that all
Courts of Appeals that have considered the issue appear to
permit an employer to be held vicariously liable under Title II
for intentional discrimination by its employees.16 Hollis has
not a supervisor as understood and regulated under Title VII. See Defendant’s Reply (doc. no. 33) at 3. Though the court need not reach this issue because it does not draw on Title VII for its respondeat superior analysis, it notes that Keehan was in a position of authority over the child whom she was alleged to have discriminated against and in that sense, at least, was his “supervisor.” 16As the plaintiffs noted at oral argument, Title II of the ADA “does not provide for claims against individuals in their individual capacities.” Abbott v. Town of Salem, 2006 DNH 12, 11 (quoting Miller v. King, 384 F.3d 1248, 1277 (11th Cir.2004)). “Only public entities are subject to Title II.” San Francisco, 135 S. Ct. at 1773. The absence of vicarious liability under circumstances such as these may therefore leave plaintiffs in this position without a remedy where a teacher has taken pains to hide the assaultive conduct from the school district, frustrating the ADA’s directive “to provide a clear and comprehensive national mandate for the elimination of
16 offered no authority holding the contrary under Title II or the
Rehabilitation Act.17 Thus, Hollis has failed to establish as a
matter of law that it may not be held vicariously liable for
Keehan’s actions.
2. Disputes of material fact
Hollis argues that, even if the ADA permits vicarious
liability for Keehan’s actions, there is no dispute of material
fact over whether Keehan intentionally discriminated against TF
on the basis of his disability.18 The court disagrees.
discrimination against individuals with disabilities.” Parker, 225 F.3d at 4 (quoting 42 U.S.C. § 12101(b)(1)). 17Hollis relies on two cases to support its position, neither of which prevents vicarious liability in this situation. In S.B. v. Bd. of Educ. of Harford Cty., 819 F.3d 69, 75-76 (4th Cir. 2016), the Fourth Circuit Court of Appeals held that a county board of education could not be held vicariously liable for one student’s harassment of another under the Rehabilitation Act. This case is inapposite because it addressed vicarious liability for the actions of a non-employee.
The Eleventh Circuit Court of Appeals, relying on Gebser, concluded that the deliberate indifference of a hospital’s medical personnel could not be imputed to the hospital itself for purposes of determining the hospital’s own direct liability under the Rehabilitation Act. Liese v. Indian River County Hosp. Dist., 701 F.3d 334, 348-49 (11th Cir. 2012). The court did not directly address the question of vicarious liability, which it found the plaintiff had waived, but “note[d] that several circuits have found respondeat superior liability to apply to suits brought under the Rehabilitation Act.” Id. at 349 n.10 (citing Delano–Pyle, 302 F.3d at 574–75; Duvall, 260 F.3d at 1141; Rosen, 121 F.3d at 157 n.3; Patton v. Dumpson, 498 F. Supp. 933, 942–43 (S.D.N.Y. 1980)). 18 Defendant’s Reply (doc. no. 33) at 4-8.
17 As Hollis conceded at oral argument, physically assaultive
conduct can constitute disability-based discrimination. Against
that backdrop, the plaintiffs have raised at least one
significant question of fact: whether Keehan grabbed his ear
only once or engaged in a pattern of discriminatory assaultive
behavior against him. Hollis argues that, as an isolated
incident, Keehan’s behavior was not “sufficiently severe,
pervasive, and objectively offensive” to amount to disability-
based discrimination.19 Because the plaintiffs can produce
direct evidence of only one instance of Keehan using force with
TF, Hollis contends, they cannot demonstrate the severity and
pervasiveness of her behavior.
There is, however, additional evidence from which a jury
could conclude that Keehan engaged in a pattern of such conduct.
Though there is no video evidence of other physical
19Id. at 7. Hollis draws this standard from cases addressing a school district’s direct liability for student-on-student harassment. See Harford Cty., 819 F.3d at 76 (citing Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 650 (1999)). The court is not convinced that a teacher’s intentional discrimination requires such “severe, pervasive, and objectively offensive” behavior. See Pittsburg, 219 F. Supp. 3d at 981 (requirement that non-verbal autistic student “need only allege that the perpetrator of the alleged abuse was deliberately indifferent to her rights” satisfied where teacher “knew about [the student's] disability but . . . still went forward with the alleged abuse.”). But, as the plaintiffs point out, see Plaintiffs’ Surreply (doc. no. 34) at 4, even if that standard applies here, a dispute of fact remains as to whether it is met.
18 interactions, Keehan appears to have admitted to Rowe that she
forced TF’s hands off a table and forced him to his knees
earlier that same day.20 She further informed Rowe that she
thought school district policy permitted ear grabbing and hair
pulling as methods of keeping TF seated during lessons,21 from
which a jury could infer that the videotaped ear-pulling
incident was not an isolated incident. She never affirmatively
stated that it was.22 The fact that she took such an action
knowing that she was being videotaped and did not herself
affirmatively report it as an isolated occurrence born of
frustration further supports that inference.
The plaintiffs also raise the number of visits TF made to
the school nurse and his family doctor, and a repetitive
complaint of ear pain absent any infection.23 Though, as Hollis
points out, this circumstantial evidence is in no way
definitive, drawing all inferences in the plaintiffs’ favor --
as the court must in this procedural posture -- a reasonable
20Plaintiffs’ Obj. (doc. no. 31-1) at 4 (citing Rowe Dep. (doc. no. 31-5) at 67-68, 70). 21 Id. 22 Plaintiffs’ Surreply (doc. no. 34) at 4. 23Plaintiffs’ Obj. (doc. no. 31-1) at 4-5 (citing Michael Fortin Dep. (doc. no. 31-6) at 23-24; Varanese Dep. (doc. no. 31-7) at 26-27).
19 jury could conclude from it that Keehan engaged in an ongoing
pattern of assaultive conduct.
Keehan’s intent also remains an unresolved question of
material fact. Before Hollis can be held vicariously liable,
the plaintiffs must demonstrate that Keehan intentionally
discriminated against him on the basis of his disability. See
Nieves-Márquez, 353 F.3d at 126. Intentional discrimination
requires at least deliberate indifference and, at most,
discriminatory animus. See supra Part III.A. The record
evidence does not conclusively establish that Keehan acted with
the requisite intent, leaving this a question for the jury to
resolve. See Petitti v. New England Tel. & Tel. Co., 909 F.2d
28, 32 (1st Cir. 1990) (“Intent to discriminate is a question of
fact and [the court] must leave this determination to the
jury.”).
With disputes of fact such as these in play -- disputes
that touch on the most basic elements of the plaintiffs’ claims
-- the court must deny Hollis’s motion for summary judgment on
the issue of vicarious liability.
20 Conclusion
For the reasons set forth above, the court GRANTS Hollis’s
motion for summary judgment24 as to its own direct liability, but
DENIES it as to its vicarious liability for Keehan’s actions.
SO ORDERED.
Joseph N. Laplante United States District Judge
Dated: September 18, 2017
cc: H. Jonathan Meyer, Esq. Brian J.S. Cullen, Esq. Charles P. Bauer, Esq. Matthew Vernon Burrows, Esq.
24 Document no. 28.