Wadsworth v. MSAD 40/RSU 40
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Opinion
United States Court of Appeals For the First Circuit
No. 23-1463
ADRIANNA WADSWORTH,
Plaintiff, Appellant,
v.
CHUCK NGUYEN, MSAD 40/RSU 40, and ANDREW CAVANAUGH,
Defendants, Appellees,
MEDOMAK VALLEY HIGH SCHOOL,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Montecalvo, Lynch, and Rikelman, Circuit Judges.
John J. Wall, III, with whom Monaghan Leahy, LLP, was on brief, for appellant. Eric R. LeBlanc, with whom Zachary H. Hammond and Bennett & Belfort, P.C., were on brief, for appellee. Sean Ouellette, Mollie Berkowitz, Adele P. Kimmel, and Public Justice were on brief for amicus curiae Public Justice.
February 19, 2025 MONTECALVO, Circuit Judge. Plaintiff-appellant Adrianna
Wadsworth, who was a student at Medomak Valley High School
("Medomak") during the relevant time period, initiated this
lawsuit against Andrew Cavanaugh, the principal at the time in
question; Chuck Nguyen, a school social worker; and the school
district, MSAD 40/RSU 40 ("MSAD"). In her operative complaint,
Wadsworth alleged various constitutional claims against Cavanaugh,
Nguyen, and MSAD, as well as a Title IX claim against MSAD.1 Before
us now are several decisions from the district court: one on a
motion to dismiss and three on motions for summary judgment.2 In
those decisions, the district court determined that Wadsworth's
constitutional claims and Title IX claim could not survive, and
Wadsworth now appeals. For the reasons that follow, we affirm the
district court decision on the motion to dismiss, affirm in part
and reverse in part the summary judgment decision in favor of
Cavanaugh, affirm the summary judgment decision in favor of Nguyen,
and affirm in part and reverse in part the summary judgment
decision in favor of MSAD.
1 Wadsworth also alleged a variety of tort claims against the three defendants. Those claims are not at issue in this appeal. 2 This appeal was initiated as a cross-appeal to case number 23-1400. The cases were briefed and argued together; however, an opinion in that case issued separately. See Wadsworth v. Nguyen, No. 23-1400, 2024 WL 4766994 (1st Cir. Nov. 13, 2024) (dismissing for failure to establish appellate jurisdiction) (per curiam).
- 2 - I. Background
A. Facts
We begin by setting forth the relevant facts. Because
this case arises mainly from the district court's entry of summary
judgment in favor of various defendants, "we take the facts in the
light most favorable to [Wadsworth] and draw all reasonable
inferences therefrom in [her] favor." Universal Trading & Inv.
Co. v. Bureau for Representing Ukrainian Ints. in Int'l & Foreign
Cts., 87 F.4th 62, 65-66 (1st Cir. 2023).
Medomak is a school within MSAD, which Stephen Nolan has
led as superintendent since 2014. As superintendent, Nolan
directly supervises the Medomak principal and has the "power to
initiate an investigation into a principal's conduct, impose
discipline short of dismissal, and recommend that the School Board
dismiss a principal." Cavanaugh was the principal of Medomak from
2015 until his resignation in December of 2017. As principal,
Cavanaugh directly supervised the school's assistant principals,
positions held, during the relevant time, by Linda Pease and Tamra
Philbrook. Also during the relevant time, Nguyen was a social
worker at Medomak.
Wadsworth started as a student at Medomak in 2014, just
before Cavanaugh was promoted to principal. In the spring of 2016,
when Wadsworth was a sixteen-year-old sophomore, she was caught
drinking alcohol at a party and, as a result, had to meet with
- 3 - Principal Cavanaugh. Prior to that meeting, Cavanaugh's
interactions with Wadsworth had been limited to giving her awards
for "being a good student." During that meeting or thereabouts,
Wadsworth informed Cavanaugh about issues she was having at home.
Specifically, Wadsworth reported "numerous issues with her
mother."3
Concerned that Wadsworth was at risk of leaving her home,
Principal Cavanaugh referred her to Nguyen. As a result, Wadsworth
met with Nguyen several times that year and, as the school year
came to a close, Wadsworth met with Cavanaugh a few times a week.
At some point, Principal "Cavanaugh asked [Wadsworth] if there was
some way that he could help [her] escape from the house, try to
get away from the house," he then told Wadsworth that "he had a
few jobs . . . that would get [her] away from the house . . . and
that's when [he and Wadsworth] exchanged [cellphone] numbers."
That summer, with her mother's approval, Wadsworth helped
Principal Cavanaugh with odd jobs, including cleaning his rental
properties and babysitting his nephew. While spending this time
together, their relationship became less formal, and Principal
Cavanaugh's involvement in Wadsworth's school and home life
steadily increased.
Wadsworth's childhood was marked by a "very challenging" 3
home life due to her parents' turbulent relationship. Her parents fought often, and domestic violence incidents resulted in child protective services' involvement with the family.
- 4 - At the start of her junior year, Wadsworth decided to
move out of her mother's house. She wanted to do so, at least in
part, because her parents frequently fought and because she wanted
to be more actively involved in MSAD student life, something her
mother discouraged. Wadsworth then moved in with a friend's family
(the "Kenniston family"). Cavanaugh and Nguyen were both informed
of Wadsworth's new living arrangement and met with the Kenniston
parents, Theresa and Darren.
Shortly after Wadsworth moved, she was no longer able to
use her mother's car and told her father that she needed a
replacement. Wadsworth also told Principal Cavanaugh about this,
and he purchased a car for her, paying the $ 3,000 price with the
expectation that Wadsworth would work for him to pay off half of
the cost. Wadsworth's father was aware of this situation and gave
Cavanaugh permission to purchase the car. The car was registered
in Cavanaugh's name, and Cavanaugh maintained car insurance.
During her junior year, Wadsworth wanted to participate
in cheerleading and needed a physical examination in order to do
so. Principal Cavanaugh offered to, and did, take Wadsworth to
the doctor to complete the physical. Principal Cavanaugh also
suggested multiple times that Wadsworth consider asking for
prescription birth control. Although Wadsworth had explained that
she was not interested, Principal Cavanaugh continued to suggest
birth control, explaining that it could be a potential solution
- 5 - for the menstruation issues Wadsworth had previously mentioned to
him. He also raised Wadsworth's "menstruation issues" with her
doctor.
At some point, Wadsworth got a prescription for birth
control, but the parties dispute whether Cavanaugh had any
involvement in the process to get the prescription. However,
throughout their relationship, Principal Cavanaugh repeatedly
suggested that Wadsworth get a prescription for birth control and
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United States Court of Appeals For the First Circuit
No. 23-1463
ADRIANNA WADSWORTH,
Plaintiff, Appellant,
v.
CHUCK NGUYEN, MSAD 40/RSU 40, and ANDREW CAVANAUGH,
Defendants, Appellees,
MEDOMAK VALLEY HIGH SCHOOL,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Montecalvo, Lynch, and Rikelman, Circuit Judges.
John J. Wall, III, with whom Monaghan Leahy, LLP, was on brief, for appellant. Eric R. LeBlanc, with whom Zachary H. Hammond and Bennett & Belfort, P.C., were on brief, for appellee. Sean Ouellette, Mollie Berkowitz, Adele P. Kimmel, and Public Justice were on brief for amicus curiae Public Justice.
February 19, 2025 MONTECALVO, Circuit Judge. Plaintiff-appellant Adrianna
Wadsworth, who was a student at Medomak Valley High School
("Medomak") during the relevant time period, initiated this
lawsuit against Andrew Cavanaugh, the principal at the time in
question; Chuck Nguyen, a school social worker; and the school
district, MSAD 40/RSU 40 ("MSAD"). In her operative complaint,
Wadsworth alleged various constitutional claims against Cavanaugh,
Nguyen, and MSAD, as well as a Title IX claim against MSAD.1 Before
us now are several decisions from the district court: one on a
motion to dismiss and three on motions for summary judgment.2 In
those decisions, the district court determined that Wadsworth's
constitutional claims and Title IX claim could not survive, and
Wadsworth now appeals. For the reasons that follow, we affirm the
district court decision on the motion to dismiss, affirm in part
and reverse in part the summary judgment decision in favor of
Cavanaugh, affirm the summary judgment decision in favor of Nguyen,
and affirm in part and reverse in part the summary judgment
decision in favor of MSAD.
1 Wadsworth also alleged a variety of tort claims against the three defendants. Those claims are not at issue in this appeal. 2 This appeal was initiated as a cross-appeal to case number 23-1400. The cases were briefed and argued together; however, an opinion in that case issued separately. See Wadsworth v. Nguyen, No. 23-1400, 2024 WL 4766994 (1st Cir. Nov. 13, 2024) (dismissing for failure to establish appellate jurisdiction) (per curiam).
- 2 - I. Background
A. Facts
We begin by setting forth the relevant facts. Because
this case arises mainly from the district court's entry of summary
judgment in favor of various defendants, "we take the facts in the
light most favorable to [Wadsworth] and draw all reasonable
inferences therefrom in [her] favor." Universal Trading & Inv.
Co. v. Bureau for Representing Ukrainian Ints. in Int'l & Foreign
Cts., 87 F.4th 62, 65-66 (1st Cir. 2023).
Medomak is a school within MSAD, which Stephen Nolan has
led as superintendent since 2014. As superintendent, Nolan
directly supervises the Medomak principal and has the "power to
initiate an investigation into a principal's conduct, impose
discipline short of dismissal, and recommend that the School Board
dismiss a principal." Cavanaugh was the principal of Medomak from
2015 until his resignation in December of 2017. As principal,
Cavanaugh directly supervised the school's assistant principals,
positions held, during the relevant time, by Linda Pease and Tamra
Philbrook. Also during the relevant time, Nguyen was a social
worker at Medomak.
Wadsworth started as a student at Medomak in 2014, just
before Cavanaugh was promoted to principal. In the spring of 2016,
when Wadsworth was a sixteen-year-old sophomore, she was caught
drinking alcohol at a party and, as a result, had to meet with
- 3 - Principal Cavanaugh. Prior to that meeting, Cavanaugh's
interactions with Wadsworth had been limited to giving her awards
for "being a good student." During that meeting or thereabouts,
Wadsworth informed Cavanaugh about issues she was having at home.
Specifically, Wadsworth reported "numerous issues with her
mother."3
Concerned that Wadsworth was at risk of leaving her home,
Principal Cavanaugh referred her to Nguyen. As a result, Wadsworth
met with Nguyen several times that year and, as the school year
came to a close, Wadsworth met with Cavanaugh a few times a week.
At some point, Principal "Cavanaugh asked [Wadsworth] if there was
some way that he could help [her] escape from the house, try to
get away from the house," he then told Wadsworth that "he had a
few jobs . . . that would get [her] away from the house . . . and
that's when [he and Wadsworth] exchanged [cellphone] numbers."
That summer, with her mother's approval, Wadsworth helped
Principal Cavanaugh with odd jobs, including cleaning his rental
properties and babysitting his nephew. While spending this time
together, their relationship became less formal, and Principal
Cavanaugh's involvement in Wadsworth's school and home life
steadily increased.
Wadsworth's childhood was marked by a "very challenging" 3
home life due to her parents' turbulent relationship. Her parents fought often, and domestic violence incidents resulted in child protective services' involvement with the family.
- 4 - At the start of her junior year, Wadsworth decided to
move out of her mother's house. She wanted to do so, at least in
part, because her parents frequently fought and because she wanted
to be more actively involved in MSAD student life, something her
mother discouraged. Wadsworth then moved in with a friend's family
(the "Kenniston family"). Cavanaugh and Nguyen were both informed
of Wadsworth's new living arrangement and met with the Kenniston
parents, Theresa and Darren.
Shortly after Wadsworth moved, she was no longer able to
use her mother's car and told her father that she needed a
replacement. Wadsworth also told Principal Cavanaugh about this,
and he purchased a car for her, paying the $ 3,000 price with the
expectation that Wadsworth would work for him to pay off half of
the cost. Wadsworth's father was aware of this situation and gave
Cavanaugh permission to purchase the car. The car was registered
in Cavanaugh's name, and Cavanaugh maintained car insurance.
During her junior year, Wadsworth wanted to participate
in cheerleading and needed a physical examination in order to do
so. Principal Cavanaugh offered to, and did, take Wadsworth to
the doctor to complete the physical. Principal Cavanaugh also
suggested multiple times that Wadsworth consider asking for
prescription birth control. Although Wadsworth had explained that
she was not interested, Principal Cavanaugh continued to suggest
birth control, explaining that it could be a potential solution
- 5 - for the menstruation issues Wadsworth had previously mentioned to
him. He also raised Wadsworth's "menstruation issues" with her
doctor.
At some point, Wadsworth got a prescription for birth
control, but the parties dispute whether Cavanaugh had any
involvement in the process to get the prescription. However,
throughout their relationship, Principal Cavanaugh repeatedly
suggested that Wadsworth get a prescription for birth control and
asked detailed questions about her menstrual cycle and whether she
was using the birth control prescription.
During this time, Principal Cavanaugh gave Wadsworth
money for various personal essentials (i.e., shampoo, conditioner,
soap, a toothbrush, toothpaste, various feminine hygiene products,
and a winter coat) and for school lunch. He also gave her money
for nonessentials such as getting her hair and nails done for prom.
He paid for Wadsworth's school pictures and prom tickets and
offered to cover the cost of her SAT test. It was not unusual for
Medomak teachers and administrators to provide some aid to students
in need.
Principal Cavanaugh also encouraged Wadsworth to move in
with him and his wife,4 bringing up the possibility multiple times.
In his briefing, Cavanaugh consistently uses the term "wife" 4
but on at least one occasion specifies "common-law wife." He also testified that his first and only marriage ended prior to the
- 6 - Over the course of May and June 2017, Cavanaugh sent Wadsworth
text messages on at least eight occasions encouraging her to come
stay with him -- once remarking "[I] am going to have to order you
to live at my house" -- but Wadsworth either did not directly
respond or provided a vague answer, deferring the decision to some
point in the future. However, Cavanaugh eventually informed
Wadsworth that it was not a possibility, texting her: "I spoke
with work about you staying with me[,] and [I] can[']t."
In Wadsworth's junior year, during which she turned
seventeen, and into the start of her senior year, Principal
Cavanaugh met with Wadsworth frequently -- multiple times a
week -- sometimes during Wadsworth's classes and during her free
periods. When Principal Cavanaugh pulled Wadsworth from classes,
those meetings were recorded because Cavanaugh had to
affirmatively excuse Wadsworth from class, and during her junior
year, Wadsworth met with Cavanaugh during class hours at least
eight times. But in October 2017, Cavanaugh asked the attendance
secretary "to stop entering his name in the comments if he excused
or dismissed [Wadsworth] as . . . teachers didn't like it and he
was getting grief for it." Further, one of Wadsworth's peers
testified that "[a]lmost every day" Cavanaugh would come into
Wadsworth's study hall and talk to her, sometimes pulling her out
events in question. Despite this discrepancy, we follow his lead and use the term "wife."
- 7 - of study hall to meet. That student went on to explain that
Wadsworth "complained that she was missing out on study hall time"
as a result.
Principal Cavanaugh and Wadsworth also communicated
extensively via text message. From April to November 2017,
Cavanaugh and Wadsworth exchanged numerous, near-daily text
messages. During that eight-month period, the two exchanged more
than 4,800 text messages, communicating at all hours of the day
and night.
Cavanaugh regularly initiated these text message
conversations and often, if Wadsworth did not respond quickly,
would send additional questions until she responded. He regularly
cited a "three[-]minute response rule," which he expected
Wadsworth to follow when he sent her a message and once explained
that she should "feel guilty" for not responding to his messages.
At times when Wadsworth did not respond promptly, Principal
Cavanaugh would threaten physical violence. For example,
Cavanaugh wrote: "Are you looking to get knocked?"; "You must be";
and "Don't challenge me woman. I would hit you so hard, you would
starve to death before you quit rolling." He also wrote, "I bet
if I slapped you a couple times you would be mine forever." Another
time, after approximately three hours had passed with no response
from Wadsworth, Cavanaugh sent another series of messages: "Way
past the three[-]minute response rule!"; "Did you die?"; and "If
- 8 - it didn't sound creepy [I] might threaten you with a spanking."
On another occasion, he wrote "I might have to give you a
spanking."
Many of these text messages revolved around Wadsworth's
school work, college applications, and home life. Wadsworth
confided in Principal Cavanaugh about her struggles with her
parents, her health, her confidence, and a sexual assault she had
experienced. Cavanaugh often played the role of confidant,
providing sympathy and words of advice in these messages. However,
he also initiated conversations about sex and made comments about
Wadsworth's appearance.
Specifically, Principal Cavanaugh regularly inquired
into Wadsworth's dating and sex life. On at least two occasions,
he asked her if she had experienced "the 'O' yet," likely referring
to whether Wadsworth had ever experienced an orgasm, and proceeded
to provide a vague explanation as to how she could, including that
she "just need[ed] some practice" and "should try [her]self and
then it w[ould] be easier for [her]." He also asked if she had
"ever been with a girl." And, on several occasions, Cavanaugh
asked Wadsworth to tell him her "scandalous" "secrets." And, in
addition to inquiring into Wadsworth's romantic life, Principal
Cavanaugh alluded to his own romantic prowess, writing things like
"Can you see now how I am so irresistible?" and "Girl, you know I
got game!"
- 9 - Principal Cavanaugh also sent messages containing sexual
innuendos. For example, he implied he wanted to see Wadsworth
perform a "topless cheerleading routine." On another occasion,
Cavanaugh wrote: "You are like a daughter to me. . . . a scandalous
stepdaughter. Hah hah." He also suggested that Wadsworth could
be an erotic dancer, writing "10-4 princess" and explaining that
"10-4" was "the height of the pole [she] ha[d] to dance on."
Principal Cavanaugh also inquired about whether
Wadsworth might send him pictures of herself in a swimsuit and
remarked on times he had seen her in a swimsuit. He once asked to
see what Wadsworth described as "scandalous" photos, telling her
to "[o]nly send [him] the scandolous [sic] ones!" In the same
conversation, he referred to Wadsworth as "the sports illustrated
swimsuit model." On another occasion, Cavanaugh asked Wadsworth
if she had ever sent "nude" pictures to anyone, later explaining
that "some of our boys" have "pictures of some of our girls," and
that "both the boys and girls are people in [Wadsworth's] circle."
In the text messages, Cavanaugh often made remarks about
Wadsworth's appearance, particularly her attractiveness. For
example, Principal Cavanaugh wrote: "Of course you have a pretty
big rack but that's because of the [birth control] pill" and then
"[w]ell[] you[r breasts] make me a little dizzy!" In another set
of text messages he stated, "I know you are super hot and that
probably does influence me . . ." He also remarked: "You are just
- 10 - too hot for your own good!" And, in response to Wadsworth writing
"I just flirt with you and get what I want," Cavanaugh wrote,
"Pretty much[,] I was always a sucker for a smokin['] chick[.]"
He also explained that "it would be hatd [sic] for [Wadsworth] to
not look sexy" and once referred to her as "a snappy little vixen."
And, on many occasions, Cavanaugh sent her admonitions to not "get
fat."
In the text messages, Principal Cavanaugh referred to
Wadsworth as "princess," "cupcake," and "lady time" (the latter
also being a reference to Wadsworth's menstrual cycle). He also
referred to her as a "ho," which is generally understood as slang
for "whore." On another occasion he referred to her as a "bitch."
Once, Cavanaugh referred to Wadsworth as a "skank," colloquially
understood to mean a woman of low moral character. At no point
did the relationship ever become physical.
During this time, Assistant Principals Pease and
Philbrook had some understanding of the nature of Principal
Cavanaugh's relationship with Wadsworth.5 Both were aware of the
frequent meetings between Cavanaugh and Wadsworth and the fact
that several teachers had expressed concern with how often the two
5 Wadsworth also alleges that Nguyen was well aware of Principal Cavanaugh's conduct and that he told Wadsworth that Cavanaugh was acting in her best interests. Additional details of Wadsworth's allegations against Nguyen are set forth in Part III.B.1 infra.
- 11 - met as it caused Wadsworth to miss class. Although it was not
unusual for the principal to meet regularly with students,
Assistant Principal Philbrook had concerns about when those
meetings were happening and told him that "she had some concerns
about the number of times [he was] taking . . . Wadsworth out of
class." Cavanaugh's explanation for the meetings was that
"Wadsworth was dealing with a difficult family situation and needed
support." The assistant principals were also aware that Cavanaugh
referred to Wadsworth as "cupcake," that she was working for him,
that he wanted to invite her to live with him, and that they
communicated by text message (there is nothing in the record,
however, to suggest that they were aware of the content and extent
of the text messages). At no point did either assistant principal
bring anything to the attention of the superintendent.
The fall of 2017 saw the beginning of the end of the
relationship between Principal Cavanaugh and Wadsworth. On
September 19, 2017, during Wadsworth's senior year, Police Officer
Christopher Spear, assigned as a Medomak school resource officer,
pulled her over for speeding. Wadsworth was driving the car that
Principal Cavanaugh had purchased for her. Officer Spear inquired
as to why the registration was in Cavanaugh's name and later met
with Cavanaugh about the incident. Officer Spear then reached out
to Assistant Principal Philbrook to express his concerns about
Wadsworth driving a car that Cavanaugh owned and insured.
- 12 - Philbrook told Officer Spear that she was aware that Wadsworth had
worked for Cavanaugh over the summer, and so when she learned
Wadsworth was purchasing the car from Cavanaugh it did not concern
her. She then explained that she and Pease had received complaints
about the amount of time Principal Cavanaugh spent with Wadsworth
and about him frequently excusing her from class. She also
explained that both she and Pease "had tried to have professional
conversations" with Cavanaugh about his relationship with
Wadsworth. Assistant Principal Philbrook also explained that
Principal Cavanaugh had asked Wadsworth to live with him. Officer
Spear reported this to the police chief, who advised him to
"closely monitor the situation," as it did not appear that a
criminal act had been committed, only that Cavanaugh was exercising
poor judgment.
Throughout this period, Theresa Kenniston, with whom
Wadsworth lived, had grown steadily more concerned about Principal
Cavanaugh's conduct toward Wadsworth. In October 2017, Theresa
became aware that he had asked Wadsworth if she had ever sent nude
photos. After learning this, she called the police. When the
police arrived, Theresa gave the police Wadsworth's cell phone,
which the Kenniston family paid for. Accordingly, the police
accessed the text messages between Cavanaugh and Wadsworth.
Shortly thereafter, Theresa Kenniston submitted a
statement to police detailing her concerns about the relationship
- 13 - between Principal Cavanaugh and Wadsworth. She explained that
Wadsworth had told her that Cavanaugh "call[ed] her cupcake,
pull[ed her out o[f c]lass to give her gifts or ask her how she is
doing[,] and text[ed] her frequently." She also explained that
she understood Principal Cavanaugh to have arranged for Wadsworth
to have a doctor's appointment to get birth control. Further, she
understood that Principal Cavanaugh had "got[ten] a hold of" a
naked picture of another student and that he had "gawked" at the
photo.
Following Theresa Kenniston's report, on November 2, the
police chief contacted Superintendent Nolan and conveyed the
concerns regarding the text messages. The chief asked that Nolan
not take any action for twenty-four hours so as to not compromise
law enforcement's investigation. On November 5, Nolan put
Cavanaugh on leave and instructed him not to report to Medomak the
next day. Thereafter, Superintendent Nolan initiated an
investigation into Cavanaugh's conduct. While the investigation
was ongoing and after Cavanaugh was instructed to not go onto
school property, Cavanaugh's attorney approached Wadsworth on
school property and asked her to sign an affidavit in support of
Cavanaugh. Nguyen later encouraged Wadsworth to sign the affidavit
and told her that she should apologize to Principal Cavanaugh's
family because they "had a right to be angry" at her.
- 14 - After investigating the situation, Superintendent Nolan
prepared a memorandum to the school board recommending that
Cavanaugh be dismissed. However, before the board met, in December
2017, Cavanaugh resigned as principal. The police never charged
him with any crime in connection to his relationship with
Wadsworth.
B. Procedural History
In December 2019, Wadsworth initiated this lawsuit in
district court against Cavanaugh, Nguyen, and MSAD.6 Specifically,
her complaint alleges that Principal Cavanaugh harassed and
discriminated against her and was therefore liable for depriving
Wadsworth of her constitutional rights in violation of 42 U.S.C.
§ 1983. The complaint does not articulate the specific rights
Wadsworth alleges Cavanaugh violated, but the litigation below
establishes that Wadsworth sought to advance two separate theories
of liability: (1) that Principal Cavanaugh had violated her
substantive due process rights by depriving Wadsworth of her right
to be free from invasions of her bodily integrity and (2) that
Wadsworth initially also alleged claims against Medomak 6
Valley High School. However, after MSAD filed a motion to dismiss explaining that Maine law did not recognize high schools as legal entities, Wadsworth filed an amended complaint removing Medomak Valley High School as a defendant.
- 15 - Principal Cavanaugh had violated her equal protection rights by
sexually harassing her.
Wadsworth alleged that Nguyen was also liable for
depriving her of her constitutional rights in violation of § 1983
"by, among other acts and omissions, his failure to protect [her]
when she complained about [Principal Cavanaugh's] sexual
harassment and discrimination." Again, her complaint does not
list the specific rights that she alleges Nguyen violated, but the
ensuing litigation establishes that Wadsworth's § 1983 claim
encompasses three distinct bases for liability: (1) supervisor
liability, (2) violation of Wadsworth's equal protection rights,
and (3) violation of Wadsworth's substantive due process rights on
a state-created-danger theory.
Finally, Wadsworth alleged that MSAD was liable for
depriving her of her constitutional rights in violation of § 1983
by failing to follow, apply, or enforce laws preventing harassment
and discrimination and by failing to adequately train and supervise
employees regarding their obligations to address sexual harassment
at Medomak. She also alleged that MSAD had been deliberately
indifferent to the harassment in violation of Title IX.
Early on, Nguyen filed a motion to dismiss the
constitutional claims against him, asserting that Wadsworth had
"fail[ed] to state an actionable claim because her state-created
danger theory does not apply, she did not allege the necessary
- 16 - facts for a direct equal protection claim, . . . the § 1983 claims
cannot be premised upon [supervisory] liability," and, regardless,
that qualified immunity protects him from suit. The district court
"conclude[d] that [Wadsworth] alleged a viable substantive due
process claim under § 1983 but not a viable" supervisor-liability
claim and that "qualified immunity d[id] not require dismissal."
Wadsworth v. Me. Sch. Admin. Dist. 40/Reg. Sch. Unit 40,
19-cv-00577-JAW, 2020 WL 5880471, at *1, *17 (D. Me. Oct. 2, 2020).
More specifically, the district court held that there could be no
supervisory liability because "Wadsworth made no allegation that
. . . Nguyen had control over . . . Cavanaugh's actions."
All three defendants moved separately for summary
judgment, and the district court issued three separate decisions
on those motions. Cavanaugh sought summary judgment on both the
substantive due process claim and the equal protection claim. As
to the substantive due process claim, the district court determined
that Wadsworth could not establish that Principal Cavanaugh
violated her right to bodily autonomy given that there was no
physical aspect to Cavanaugh's conduct and that, in any event,
Cavanaugh was entitled to qualified immunity. On the equal
protection claim, the district court determined that Wadsworth had
established the elements of the claim but that Cavanaugh was
nevertheless protected by qualified immunity because no First
Circuit case had determined that such conduct could be the basis
- 17 - of an equal protection violation. Thus, the district court granted
Cavanaugh summary judgment on the constitutional claims.
19-cv-00577-JAW, 2023 WL 2714028, at *1 (D. Me. Mar. 30, 2023).
Nguyen sought summary judgment on the remaining
constitutional claim against him -- the substantive due process
claim. In granting the motion, the district court concluded that
Wadsworth had failed to establish that Nguyen's behavior "shocked
the conscience," as was required to establish a
state-created-danger substantive due process claim. The district
court also determined that, regardless, Nguyen was entitled to
qualified immunity. Wadsworth v. Me. Sch. Admin. Dist. 40/Reg.
Sch. Unit 40, 19-cv-00577-JAW, 2023 WL 2714027, at *1 (D. Mar. 30,
2023).
Finally, MSAD moved for summary judgment on the § 1983
municipal liability claim and the Title IX claim. As to municipal
liability, the district court determined that Wadsworth could not
establish liability under § 1983 on either of her theories. With
respect to Title IX, the court determined that Wadsworth could not
establish that "an official with the authority to implement
corrective measures had actual knowledge of the alleged harassment
and acted with deliberate indifference toward" Wadsworth. Thus,
the district court granted summary judgment to MSAD. Wadsworth v.
- 18 - Me. Sch. Admin. Dist. 40/Reg. Sch. Unit 40, 663 F. Supp. 3d 83, 89
(D. Me. 2023).
Wadsworth now appeals the three grants of summary
judgment as well as the earlier dismissal of the
supervisor-liability claim against Nguyen.
II. Standard of Review
This case requires review of both a decision on a motion
to dismiss and decisions on motions for summary judgment. Because
the appeal's primary challenge is to the summary judgment
decisions, however, we recite that standard here:
We review a district court's grant of a motion for summary judgment de novo. We must construe the evidence "in the light most congenial to the nonmovant," and will affirm the grant of summary judgment where the record "presents no genuine issue as to any material fact and reflects the movant's entitlement to judgment as a matter of law."
Mullane v. U.S. Dep't of Just., 113 F.4th 123, 130 (1st Cir. 2024)
(footnote and internal citation omitted) (quoting McKenny v.
Mangino, 873 F.3d 75, 80 (1st Cir. 2024)). We apply this standard
unless otherwise indicated.
III. Discussion
As an initial matter, because many of Wadsworth's claims
are made pursuant to § 1983, we set forth the elements of such a
claim. "To succeed, [a plaintiff] must show: (1) that the
complained-of conduct was committed under the color of state law,
- 19 - and (2) that such conduct violated [their] constitutional or
federal statutory rights." Miller v. Town of Wenham, 833 F.3d 46,
51 (1st Cir. 2016) (citing Chongris v. Bd. of Appeals, 811 F.2d
36, 40 (1st Cir. 1987)). Relevant to all of Wadsworth's § 1983
claims, the parties dispute only whether she established the second
element.
Next, because both Cavanaugh and Nguyen argue that
qualified immunity protects them, we set forth in part the relevant
structure of that review: "We often follow 'a two-step approach'
to decide whether a defendant is entitled to summary judgment based
on qualified immunity." Perry v. Spencer, 94 F.4th 136, 146 (1st
Cir. 2024) (quoting Stamps v. Town of Framingham, 813 F.3d 27, 34
(1st Cir. 2016)). First, we look to "whether there is a genuine
issue of disputed fact that would allow a reasonable finder of
fact to determine that the defendant violated the plaintiff's
federal constitutional rights." Id. Second, if there is such a
dispute, we determine "whether the right that the plaintiff can
supportably show was violated was clearly established at the time
of the defendant's alleged violation." Id. We need not take the
steps in "strict sequence" and can resolve the issue at either
step. Estrada v. Rhode Island, 594 F.3d 56, 63 (1st Cir. 2010)
(quoting Bergeron v. Cabral, 560 F.3d 1, 7 (1st Cir. 2009),
abrogated on other grounds by Maldonado v. Fontanes, 568 F.3d 263,
269 (1st Cir. 2009)).
- 20 - With these general principles set forth, we turn to the
specifics of the claims before us.
A. Claims Against Principal Cavanaugh
We begin with the district court's grant of summary
judgment in favor of Cavanaugh, which we affirm with respect to
the substantive due process claim but reverse with respect to the
equal protection claim.
1. Substantive Due Process: Right to be Free From Invasions of Bodily Integrity7
The district court determined that Wadsworth could not
establish a substantive due process violation and, even if she
could, Cavanaugh was entitled to qualified immunity because the
constitutional right that he allegedly violated was not clearly
established at the relevant time. We affirm but do so on
alternative grounds.
The Due Process Clause of the Fourteenth Amendment
prohibits a state from depriving a person of "life, liberty, or
property, without due process of law." U.S. Const. amend. XIV,
§ 1. In this context, when the substantive due process claim is
focused on the individual actions of one government official,
7To the extent Wadsworth seeks to frame this as a state-created-danger claim, we agree with Cavanaugh and the district court that the theory is inapt. Wadsworth's arguments only establish that she is pursuing a substantive due process claim based on a violation of her fundamental rights. Further, she does not challenge the district court's treatment of the claim as a straightforward substantive due process claim.
- 21 - untethered to any government policy, "[t]he substantive due
process guarantee functions to protect individuals from
particularly offensive actions on the part of government
officials." Pagán v. Calderón, 448 F.3d 16, 32 (1st Cir. 2006)
(citation omitted). "Where, as here, a plaintiff's substantive
due process claim challenges the specific acts of a state officer,
the plaintiff must show both that the acts were so egregious as to
shock the conscience and that they deprived him of a protected
interest in life, liberty, or property." Id. (citing Rivera v.
Rhode Island, 402 F.3d 27, 34 (1st Cir. 2005)).
Wadsworth bases her substantive due process claim
against Cavanaugh on her right to be free from invasions of her
bodily integrity. The right to bodily integrity is well
established, see, e.g., Vacco v. Quill, 521 U.S. 793, 807 (1997)
(noting "well-established, traditional rights to bodily integrity
and freedom from unwanted touching"); however, identifying a right
is but the first step. Wadsworth must also establish that the
alleged conduct at issue deprived her of that protected right.
See Pagán, 448 F.3d at 32. Cavanaugh argues that Wadsworth cannot
do so because the case law defining the right to bodily integrity
requires a physical invasion and Wadsworth has neither alleged nor
established a physical component to the harassment.
The district court concluded that Wadsworth could not
satisfy either prong of the due process analysis -- i.e., that she
- 22 - could not show that Principal Cavanaugh's conduct violated her
rights or that his conduct shocked the conscience. Specifically,
the district court determined that Wadsworth could not, as a matter
of law, make out a violation of her right to bodily integrity
because there was no "authority supporting the proposition that
non-physical harassment alone can violate the right to bodily
integrity." The district court explained that the case law finding
that sexual harassment is a violation of the right to bodily
integrity is, to date, limited to instances where the harassment
had a physical component.
The district court also held it could not conclude that
Principal Cavanaugh's conduct was conscience shocking. It
explained that because no First Circuit case had unequivocally
determined that non-physical harassment rose to the level of
conscience shocking it could not find that Cavanaugh's conduct
shocked the conscience.8
8 To the extent the district court believed that a lack of on-point First Circuit case law could be an independent basis for denying summary judgment, we note that whether conduct shocks the conscience is a fact-intensive inquiry, see Pagán, 448 F.3d at 32, and this court has made clear that, although we have yet to encounter non-physical conduct that rises to that level, in the right circumstances (if sufficiently egregious), exclusively verbal harassment could rise to the level of conscience shocking. See Brown v. Hot, Sexy and Safer Prods., Inc., 68 F.3d 525, 532 (1st Cir. 1995) ("Although we have not foreclosed the possibility that words or verbal harassment may constitute conscious [sic] shocking behavior in violation of substantive due process rights, our review of the case[ ]law indicates that the threshold for alleging such claims is high and that the facts alleged here do
- 23 - On appeal, Wadsworth argues that the district court
erred in concluding that non-physical harassment could not shock
the conscience and, in turn, erred in concluding that Wadsworth's
substantive due process claim was not viable. Wadsworth does not,
however, address the question of whether non-physical harassment
can violate the right to bodily integrity; she merely argues that
a jury could conclude that Principal Cavanaugh's conduct was
"shocking or violative of universal standards of decency."9
(Quoting Amsden v. Moran, 904 F.2d 748, 754 (1st Cir. 1990)). As
we have explained, Wadsworth must establish both that Cavanaugh's
conduct was conscience shocking and that it violated her
fundamental right to bodily integrity. See Pagán, 448 F.3d at 32.
Because she does not challenge the district court's conclusion as
to the latter or present any argument as to why we must conclude
that non-physical harassment violated her rights, her appellate
not rise to that level." (internal quotation marks and citations omitted)); Souza v. Pina, 53 F.3d 423, 427 (1st Cir. 1995) (same); Pittsley v. Warish, 927 F.2d 3, 7 n.3 (1st Cir. 1991) (same), abrogated on other grounds by Martinez v. Cui, 608 F.3d 54, 63-65 (1st Cir. 2010). 9 In another section of her brief, Wadsworth argues that
"[t]here are innumerable cases stating th[e] proposition" that sexual harassment violates the right to bodily integrity. While this is technically correct, Wadsworth has not connected those cases to the type of harassment alleged here -- that which does not involve physical abuse. Wadsworth relies exclusively on cases that hold that physical sexual harassment violates the right to bodily integrity and, as we have already explained, she has mounted no argument as to why the right must be expanded to include non-physical harassment.
- 24 - claim must fail.10 Cf. Morgan v. Town of Lexington, 823 F.3d 737,
742–44 (1st Cir. 2016) (deciding bodily integrity case alleging
bullying on shocks-the-conscience step). Accordingly, we affirm
the district court's grant of summary judgment to Cavanaugh with
respect to Wadsworth's substantive due process claim, without
considering whether the second prong of qualified immunity would
also protect Cavanaugh -- the district court's second basis for
granting summary judgment.
10Wadsworth cited no case where a court concluded that sexual harassment with no physical component amounted to a violation of a person's fundamental right to be free from invasions of their bodily integrity. Nonetheless, as the district court explained: This area of law may be ripe for reexamination as to whether pervasive, non-physical sexual harassment may be as harmful to the victim's constitutional right to bodily integrity as some forms of physical abuse. . . . Here, a high school principal engaged in prolonged, pervasive, and persistent sexual harassment of a teenage girl under his authority, who was struggling with a difficult family situation, and his actions were bound to cause confusion, emotional distress, worry, and other significant psychological harms. If Mr. Cavanaugh had even momentary sexual contact with Ms. Wadsworth, the [c]ourt could apply an entirely different analysis to this case . . . it strikes the [c]ourt that the current state of the law artificially diminishes the impact of psychological sexual harassment. However, this case does not present the opportunity to reexamine the confines of the right, so we leave for another day the question of whether non-physical harassment violates the right to bodily integrity.
- 25 - 2. Equal Protection: Sex Discrimination
The district court also granted Cavanaugh summary
judgment on Wadsworth's equal protection claim, determining that
although Wadsworth had established a constitutional violation,
Cavanaugh was nevertheless entitled to qualified immunity. In
pertinent part, the district court concluded that Wadsworth could
not show that the constitutional right at issue was clearly
established at the time it was allegedly violated because she had
not pointed to any First Circuit case law on point.
On appeal, Wadsworth argues, as she did below, that
out-of-circuit precedent renders the constitutional right well
established. Cavanaugh responds that (1) the district court erred
in concluding that Wadsworth could establish an equal protection
violation in the first place, (2) Wadsworth waived review of any
argument that the district court's qualified immunity analysis was
erroneous for lack of development, and (3), in any event, he is
entitled to qualified immunity because the right was not clearly
established. For the reasons explained below, we conclude that
the district court correctly determined that Wadsworth's equal
protection claim was valid, despite applying the incorrect test,
that Wadsworth did not waive her qualified immunity argument, and
that the district court erred in deciding that Cavanaugh is
entitled to qualified immunity at the summary judgment stage. We
- 26 - therefore reverse the district court's grant of summary judgment
to Cavanaugh on Wadsworth's equal protection claim.
a. Applicable Framework
To make out an equal protection claim, the district court
stated that Wadsworth was required to, and did, establish both
that she was "selectively treated compared with others similarly
situated and that such treatment was based on impermissible
considerations." The district court determined that "when the
claim is brought against the alleged perpetrator directly, the
question is not whether [they] treated this victim differently
from another victim of harassment; instead, it is whether [they]
harassed the victim due to an impermissible consideration."
Because Wadsworth alleged that Principal Cavanaugh harassed her
and treated her differently because of her sex, the "similarly
situated comparators would thus be male students at [Medomak Valley
High School.]" On appeal, Cavanaugh challenges this portion of
the district court's analysis, arguing that "all male students"
cannot be a "factually similar comparator."
Although the parties and district court all seem to agree
that the applicable test requires Wadsworth to establish the
existence of a similarly situated comparator, that is not
correct.11 The Equal Protection Clause provides that "[n]o State
11We do not consider Wadsworth's request for the application of an incorrect legal test to be a waiver because parties may not
- 27 - shall . . . deny to any person within its jurisdiction the equal
protection of the laws," U.S. Const. amend. XIV, § 1, and requires
that "all persons similarly situated be treated alike." Rocket
Learning, Inc. v. Rivera-Sánchez, 715 F.3d 1, 10 (1st Cir. 2013)
(cleaned up) (quoting City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432, 439 (1985)). It is well established that sex
discrimination violates the Equal Protection Clause. See Lipsett
v. Univ. of P.R., 864 F.2d 881, 896–97 (1st Cir. 1988). Sexual
harassment is a type of sex discrimination. See id. at 896-98.
Though an equal protection claim often requires a plaintiff to
establish "that '(1) the person, compared with others similarly
situated, was selectively treated; and (2) that such selective
treatment was based on impermissible considerations such as race,
religion, intent to inhibit or punish the exercise of
constitutional rights, or malicious or bad faith intent to injure
a person,'" Davis v. Coakley, 802 F.3d 128, 132-33 (1st Cir. 2015)
(quoting Rubinovitz v. Rogato, 60 F.3d 906, 910 (1st Cir. 1995)),
waive or stipulate to the use of an inappropriate legal test. See TI Fed. Credit Union v. DelBonis, 72 F.3d 921, 928 (1st Cir. 1995) ("Issues of law are the province of courts, not of parties to a lawsuit, individuals whose legal conclusions may be tainted by self-interest. Courts, accordingly, 'are not bound to accept as controlling, stipulations as to questions of law.'" (quoting Sanford's Est. v. Comm'r, 308 U.S. 39, 51 (1939))); see also Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991) ("When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.").
- 28 - as the concurrence explains, a relevant comparator is not
necessarily a requirement under the Equal Protection Clause. This
is one such situation; an equal protection sexual harassment claim
requires a different form of analysis.
In Lipsett, the court adopted the framework applicable
to Title VII and Title IX sexual harassment claims against a
teacher or supervisor to an equal protection claim alleging sexual
harassment. 864 F.2d at 897; see also Hayut v. State Univ. of
N.Y., 352 F.3d 733, 738-39, 743 (2d Cir. 2003) (employing Title
VII standard to assess equal protection hostile educational
environment claim); Roy v. Correct Care Sols., LLC, 914 F.3d 52,
61 (1st Cir. 2019) (same for claim brought under both Title VII
and Equal Protection Clause). Following that precedent, we also
look to Title VII and Title IX to set forth the applicable
framework.
Where a plaintiff alleges that the perpetrator created
a hostile environment by "forc[ing] a [student] [to] run a gauntlet
of sexual abuse in return for the privilege of being allowed to
[go to school]," Lipsett, 864 F.2d at 897 (second alteration in
original) (citation omitted), the plaintiff must show that they
were (1) subjected to unwelcome harassment (2) on the basis of sex
and (3) that the harassment was sufficiently severe or pervasive
to create an abusive educational environment. See id.; Grace v.
Bd. of Trs., Brooke E. Boston, 85 F.4th 1, 11 (1st Cir. 2023)
- 29 - (quoting Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 66 (1st
Cir. 2002)); Nieves-Borges v. El Conquistador P'ship, L.P., S.E.,
936 F.3d 1, 8 (1st Cir. 2019).
Additionally, "[t]he 'plaintiff must show that [they]
subjectively perceived the environment to be hostile or abusive
and that the environment objectively was hostile or abusive, that
is, that it was permeated with discriminatory intimidation,
ridicule, and insult sufficiently severe or pervasive to alter the
conditions of [their] educational environment.'" Roe v. St. John's
Univ., 91 F.4th 643, 661 (2d Cir. 2024) (quoting Papelino v. Albany
Coll. of Pharmacy of Union Univ., 633 F.3d 81, 89 (2d Cir. 2011));
see Nieves-Borges, 936 F.3d at 8 (in Title VII hostile environment
claim plaintiff must show that "sexually objectionable conduct was
both objectively and subjectively offensive" (quoting Roy, 914
F.3d at 62)). Whether a plaintiff makes this showing is determined
"'in light of the record as a whole' and the 'totality of the
circumstances.'" Lipsett, 864 F.2d at 898 (quoting Meritor Savings
Bank, FSB v. Vinson, 477 U.S. 57, 69 (1986)); see also
Nieves-Borges, 936 F.3d at 8.
Here, Wadsworth alleged that Principal Cavanaugh's
conduct created a hostile educational environment for her at
Medomak. Thus, she need not have established the existence of a
similarly situated comparator in order to make out her claim
against Cavanaugh. See Lipsett, 864 F.2d at 897. We now turn to
- 30 - whether, applying the proper test, Wadsworth's equal protection
claim against Cavanaugh is viable. We conclude that it is.
b. Application of the Framework
Viewing the record as a whole and considering the
totality of the circumstances, as we must, we conclude that a
reasonable jury could find that Wadsworth made out each of the
necessary elements of her claim that Principal Cavanaugh violated
the Equal Protection Clause by creating and subjecting Wadsworth
to a hostile educational environment at Medomak. See Lipsett, 864
F.2d at 898.
To begin, we consider whether a jury could find that
Principal Cavanaugh's conduct amounted to sexual harassment, which
is necessarily harassment based on sex. See Nieves-Borges, 936
F.3d at 9-10. We have expounded on various types of behavior that
amount to sexual harassment: In Lipsett, we explained that such
conduct could be comprised of, among other things, "verbal
expressions." 864 F.2d at 898. We have also stated that "behavior
like . . . come-ons[] and lewd remarks is often the stuff of"
sexual harassment. Gerald v. Univ. of P.R., 707 F.3d 7, 18 (1st
Cir. 2013) (quoting Billings v. Town of Grafton, 515 F.3d 39, 48
(1st Cir. 2008)). We have also pointed to "[e]vidence of sexual
remarks, innuendos, ridicule, and intimidation" as sufficient to
support a jury verdict on sexual harassment. Franchina v. City of
Providence, 881 F.3d 32, 54 (1st Cir. 2018) (quoting O'Rourke v.
- 31 - City of Providence, 235 F.3d 713, 729 (1st Cir. 2001)). Further,
"a 'raft of case law establishes that the use of sexually
degrading, gender-specific epithets, such as slut, . . . whore,
and bitch has been consistently held to constitute harassment based
upon sex.'" Id. (cleaned up) (quoting Forrest v. Brinker Int'l
Payroll Co., 511 F.3d 225, 229 (1st Cir. 2007)); see also Lipsett,
864 F.2d at 903 (noting "sexually charged nicknames" as
contributing to sexual harassment). Finally, a harasser's
motivation need not include "evidence of explicit sexual
propositions," Nieves-Borges, 936 F.3d at 9, rather it may be
inferred from "implicit proposals," id. at 9-10 (quoting Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)).
Wadsworth has presented a plethora of evidence from
which a jury could find that Principal Cavanaugh sexually harassed
her. For one, Cavanaugh often sent messages containing sexual
innuendos, which could be read as implying an interest in having
a sexual relationship with Wadsworth. He asked for pictures of
her in a swimsuit and whether she had taken nude pictures of
herself; regularly discussed her appearance, describing her as
attractive and as having "a pretty big rack" and breasts that made
him "a little dizzy!"; asked her about her sex life; and used
sexually charged, "gender-specific epithets" to refer to Wadsworth
such as "ho," "skank," "bitch," and "lady time." See Jennings v.
Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007) (jury could find
- 32 - "crude questions and comments" about student's sexual activities,
comments about student's body, and discussions of sexual fantasies
about student amounted to sexual harassment). The sexual nature
of these interactions is facially apparent, and, although
Cavanaugh contends that everything was said in jest, a reasonable
jury could reject that explanation. See id. at 695 (harasser's
contention that "sex-focused comments were 'of a joking and teasing
nature'" rejected where jury could conclude the comments "were
degrading and humiliating").
We next consider whether a jury could conclude that
Principal Cavanaugh's conduct was unwelcome. In Lipsett, we
explained that unwelcomeness must be considered from the
perspective of all involved parties and, as relevant here, that
"consistent failure to respond to suggestive comments or gestures
may be sufficient to communicate that the . . . conduct is
unwelcome." 864 F.2d at 898. The record reflects that on many
occasions when Principal Cavanaugh sent suggestive text messages,
Wadsworth would not respond for an extended period of time.
Although Wadsworth described many of their conversations as
"joking" and explained that talking to Cavanaugh was like talking
to "a teenage friend," she also testified that because of her
difficult home life Principal Cavanaugh "was one of the only people
. . . [she] could rely on" and that she "didn't want to mess that
up by saying that [she was] uncomfortable" discussing certain
- 33 - topics. Wadsworth went on to explain that "she remembered thinking
that there [were] certain times where [she] should say [she didn't]
want to talk about this or [she] should not engage in this and
probably shouldn't be talking about this, and felt that it [went]
a little too far." She explained that she considered "several
options [to stop the conversations]" such as telling Principal
Cavanaugh "it made [her] feel uncomfortable" but worried that doing
so "would change [their] dynamics a lot" and that "if [she] made
it a big deal" it could "affect school and [make it] awkward to go
to school" and "how can [one] ignore the principal in the school
and how is it going to make school awkward." She went on to
explain that, "instead of telling [Principal Cavanaugh] that he
was making [her] feel uncomfortable, [Wadsworth] would just find
other ways to do it and just not answer and say that [she] was at
practice or doing homework or [she] was busy and just ho[ped] that
the conversation would change from there."
Additional record evidence that supports a jury finding
of unwelcomeness includes Wadsworth's young age (she was sixteen,
later seventeen, during the relevant period); her vulnerability
given her home life; and the power imbalance between Wadsworth, a
teenage high school student, and Cavanaugh, the fifty-something
school principal. Based on this substantial record evidence, in
addition to Wadsworth's sworn deposition testimony, a jury could
- 34 - reject Cavanaugh's contention that Wadsworth was a willing
participant and find that his conduct was unwelcome.
The conduct must also have been sufficiently severe or
pervasive. We conclude that a reasonable jury could find that the
record supports that Principal Cavanaugh's conduct was severe
and/or pervasive. Here, we look to "numerous factors (to which we
assign no particular determinative weight)" including "severity of
the discriminatory conduct, its frequency, the extent to which the
behavior is physically threatening or humiliating as opposed to a
mere offensive utterance, and the extent to which it unreasonably
interferes with an employee's work performance." Franchina, 881
F.3d at 46 (citing Gerald, 707 F.3d at 18).
The record reveals near daily messages from Principal
Cavanaugh sent at all hours, including during the school day and
late at night, and weekly (if not daily) meetings. While Principal
Cavanaugh sent many unremarkable messages, the sheer volume and
the consistent discussion of topics related to sex, Wadsworth's
romantic life, and her appearance could lead a jury to conclude
that Cavanaugh's harassment was pervasive. See Hayut, 352 F.3d at
746 (noting that a "reasonable trier of fact" could find
pervasiveness where professor used sexualized nickname to refer to
student "during many periods of instruction"). Further, a
reasonable jury could find that some of Principal Cavanaugh's text
messages, especially given Wadsworth's age and Cavanaugh's
- 35 - position of power, were severe. In addition to sexually charged
messages relating to her appearance, the comments and implications
of violence Principal Cavanaugh sent when Wadsworth did not reply
quickly to his inquiries are particularly illustrative of the
"threatening [and] humiliating" nature of Cavanaugh's conduct.
Franchina, 881 F.3d at 46. Principal Cavanaugh's use of sexualized
nicknames and inquiries into Wadsworth's sex life could also allow
a reasonable jury to find that his actions "were severe enough to
transcend the bounds of propriety and decency, let alone harmless
humor, and become actionable harassment[.]" Hayut, 352 F.3d at
747 (concluding that a jury could find comments with "powerful
sexual connotations and overtones" to be severe).
Next, a reasonable jury could conclude that Principal
Cavanaugh's conduct was both subjectively and objectively
offensive. To begin, a jury could reasonably find that Cavanaugh's
conduct was objectively offensive given the nature and context of
Principal Cavanaugh’s comments, particularly the sexual overtones
and the power imbalance between a principal and student. Cf.
Jennings, 482 F.3d at 696-97 (assessing harasser's "tremendous
power and influence" as part of the "constellation of surrounding
circumstances, expectations, and relationships"). In addition, a
jury could conclude that Wadsworth found Cavanaugh's conduct
offensive because, although she sometimes considered Cavanaugh to
be "joking," she also testified that the messages made her
- 36 - "uncomfortable" and that she sought out ways to make Principal
Cavanaugh stop without negatively impacting her school life.
Finally, a reasonable jury could conclude that Principal
Cavanaugh's conduct impacted Wadsworth's learning environment.
See Lipsett, 864 F.2d at 898. Support for this finding includes
the messages Principal Cavanaugh sent throughout the school day,
his frequent meetings with Wadsworth during both her class time
and study hall (coupled with evidence that this caused her stress),
the content of his messages to her, her concern that her responses
to his messages could impact her experience at school, and the
fact that his treatment of Wadsworth was a frequent source of
gossip for other students and teachers. On this record, a
reasonable jury could conclude that Cavanaugh's conduct created
"an abusive [educational] environment." Id.
Accordingly, we reject Cavanaugh's contention that we
may affirm on the alternate grounds that Wadsworth's equal
protection claim is not viable.
We turn now to Cavanaugh's argument that, even if
Wadsworth's equal protection claim is viable, qualified immunity
bars her claim against him.
c. Entitlement to Qualified Immunity
Qualified immunity "is available to public officials
whose 'conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
- 37 - known.'" Bergeron, 560 F.3d at 5 (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). "Clearly established means that, at
the time of the [official's] conduct, the law was sufficiently
clear that every reasonable official would understand that what
they are doing is unlawful." Heredia v. Roscoe, 125 F.4th 34,
46-47 (1st Cir. 2025) (quoting Segrain v. Duffy, 118 F.4th 45, 57
(1st Cir. 2024)); see also Penate v. Sullivan, 73 F.4th 10, 18
(1st Cir. 2023) (explaining that we consider "the clarity of the
law" and whether, "on the facts of the particular case," "a
reasonable defendant would have understood that [their] conduct
violated the plaintiff['s] constitutional rights." (cleaned up)
(quoting Maldonado, 568 F.3d at 269)). "Indeed, '[i]t is important
to emphasize that this inquiry must be undertaken in light of the
specific context of the case, not as a broad general proposition.'"
Maldonado, 568 F.3d at 269 (quoting Brosseau v. Haugen, 543 U.S.
194, 195 (2004)). "Cognizant of both the contours of the allegedly
infringed right and the particular facts of the case, '[t]he
relevant, dispositive inquiry in determining whether a right is
clearly established is whether it would be clear to a reasonable
[school administrator or teacher] that [their] conduct was
unlawful . . . .'" Id. (quoting Brosseau, 543 U.S. at 199). In
other words, we ask "whether the state of the law at the time of
the alleged violation gave [Cavanaugh] fair warning that his
- 38 - particular conduct was unconstitutional." Id. (citing Hope v.
Pelzer, 536 U.S. 730, 741 (2002)).
The district court decided the issue on narrow grounds,
concluding that Wadsworth had not established the right was clearly
established because she failed to cite any First Circuit authority
holding that a teacher's non-physical sexual harassment of a
student violates the student's equal protection rights where the
harassment is devoid of hostility and "direct sexual advances."
On appeal, Wadsworth argues this was error, pointing us to several
out-of-circuit cases that she argues make clear that the equal
protection right to be free from non-physical sexual harassment
was clearly established at the time the conduct occurred.
Cavanaugh argues Wadsworth waived this issue by insufficiently
addressing it in her principal brief and, secondly, that Wadsworth
cannot succeed without citing binding precedent. Neither
contention is availing. As we will lay out below, we conclude
that the district court erred as a matter of law when it determined
that Wadsworth could not demonstrate that the constitutional
violation was clearly established and that, given our equal
protection analysis, Cavanaugh is not entitled to summary judgment
on qualified immunity.
First, we reject Cavanaugh's contention that Wadsworth
waived the issue for lack of development. See Mazariegos v. Lynch,
790 F.3d 280, 285 n.5 (1st Cir. 2015) (claim "unaccompanied by any
- 39 - developed argument or legal support" may be waived). Wadsworth
sufficiently developed her position by citing five cases to support
her argument. Because these cases speak for themselves, there was
no need for Wadsworth to explain at length how they support her
position. The issue is not waived.
Next, we reject Cavanaugh's assertion that a litigant
must point to in-circuit law in order to show that a right is
clearly established. It is well recognized "that clearly
established law can be dictated by controlling authority or a
robust consensus of persuasive authority." Irish v. Fowler, 979
F.3d 65, 77 (1st Cir. 2020) (citing Dist. of Columbia v. Wesby,
583 U.S. 48, 63 (2018)). And, we have made clear that we may
"look[] to the case law of sister circuits in determining whether
a right was clearly established." McCue v. City of Bangor, 838
F.3d 55, 63 (1st Cir. 2016). Thus, we turn to the relevant case
law.
On review, we agree with Wadsworth that at the time in
question her equal protection right to be free from non-physical
harassment was clearly established -- under both out-of-circuit
case law and First Circuit case law. Given our analysis of the
claim as to what a reasonable jury could find on this record, it
is clear that, at this juncture, qualified immunity does not
protect Principal Cavanaugh.
- 40 - To begin, as discussed earlier in this decision, in
Lipsett, this court made clear that sexual harassment in the form
of "pointed threats," "sexual advances," and "sexually charged
nicknames," along with other forms of sex-based comments, is enough
to establish a prima facie case of sexual harassment in an
educational context. 864 F.2d at 903-04 (addressing sexual
harassment in the context of a medical residency program, covered
by both Title IX and Title VII); id. at 902 ("If such a state
official directly engaged in sexual harassment or sexual
discrimination, [they] would, of course, be subject to [§] 1983
liability" on an equal protection violation theory). Lipsett,
standing alone, provides clear guidance that a teacher's conduct
that includes threats, sexualized comments, and sexually charged
nicknames can rise to the level of sexual harassment.12
Further, Wadsworth has pointed our attention to four
other circuits that have held that conduct similar to what is
alleged here -- perpetrated by an educator against a student --
violates the student's equal protection rights. See Maldonado,
568 F.3d at 270-71 (noting, in the context of a different
We note that Wadsworth has not cited Lipsett to support her 12
position. Instead, she relies on out-of-circuit case law. This is of no matter, however, as, "[i]n conducting a qualified immunity analysis, a court should 'use its full knowledge of its own [and other relevant] precedents.'" Barton v. Clancy, 632 F.3d 9, 22 (1st Cir. 2011) (quoting Elder v. Holloway, 510 U.S. 510, 516 (1994)). Furthermore, the out-of-circuit cases on their own are sufficient to support our conclusion.
- 41 - constitutional right, that "[t]hree other circuits had announced
[the right] well before the violations alleged here" and concluding
that officials were not entitled to qualified immunity).
In Hayut, the Second Circuit addressed a sexual
harassment equal protection claim against a college professor who
persistently referred to his student as "Monica," a reference to
her resemblance to Monica Lewinsky, and made other pointed remarks
referencing the then-recent Lewinsky-Clinton sex scandal both
privately and in class. 352 F.3d at 738-39, 743. On those facts,
the court determined that the plaintiff had alleged an equal
protection claim sufficient to survive summary judgment,
concluding that the sexually-charged "comments were severe enough
to transcend the bounds of propriety and decency, let alone
harmless humor, and become actionable harassment based on [the
plaintiff's] sex." Id. at 744-45, 747. A jury could find that
Principal Cavanaugh engaged in a similar course of conduct. While
his behavior was far less public, he used sex-based epithets and
infused conversations with Wadsworth with sexual commentary and
remarks regarding Wadsworth's attractiveness.
In Jennings, the Fourth Circuit reviewed a sexual
harassment equal protection claim brought by a university student
against her soccer coach. 482 F.3d at 691. The coach "engaged in
sexually charged talk in team settings," "bombarded players with
crude questions and comments about their sexual activities[,] made
- 42 - comments about players' bodies that portrayed them as sexual
objects," and "expressed . . . his sexual fantasies about certain
players." Id. at 691. The court determined that a jury could
reasonably find that the coach's conduct amounted to sexual
harassment in violation of the student's equal protection rights.
Id. at 695-96, 701. Here, Principal Cavanaugh engaged in similar
conduct that a reasonable jury could find involved "sexually
charged talk," "crude question[ing]," and sexual objectification.
In Delgado v. Stegall, at the motion to dismiss stage,
the Seventh Circuit explained that a university teacher violated
a student's equal protection rights by "repeatedly asking her 'Do
you love me?' and 'Would you ever marry a man like me?'" and by
"ask[ing] her for hugs, rub[bing] her shoulders, and tickl[ing]
her." 367 F.3d 668, 670, 673 (7th Cir. 2004), abrogated on other
grounds by Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 259
(2009). Although Principal Cavanaugh did not engage in similar
physical conduct, a reasonable jury could find his remarks hit a
similar tone of obsessive sexual interest.
Finally, in Doe v. Hutchinson, an unpublished case, the
Tenth Circuit remarked that "[i]t is well[-]established in [the
Tenth Circuit] that sexual harassment by a state actor can
constitute a violation of the [E]qual [P]rotection [C]lause" and
went on to explain that where a high school teacher was alleged to
have spoken about students in sexualized terms, inquired into and
- 43 - made jokes about the student-plaintiff's sex life, and discussed
his own sex life, the student had alleged a viable hostile
environment equal protection claim. 728 F. App'x 829, 830-31, 832
(10th Cir. 2018) (quoting Murrell v. Sch. Dist. No. 1, 186 F.3d
1238, 1249 (10th Cir. 1999)). Again, Principal Cavanaugh engaged
in a similar course of conduct in his treatment of
Wadsworth -- using sexualized nicknames, asking about her sex life,
her physical appearance, and invoking sexual innuendos.
Although these cases do not present factual scenarios
identical to the one at hand, identicality is not required. As we
have explained, "[i]n arguing for clearly established law, a
plaintiff is not required to identify cases that address the
particular factual scenario that characterizes [their] case."
Alfano v. Lynch, 847 F.3d 71, 76 (1st Cir. 2017). Instead,
"'[g]eneral statements of the law are not inherently incapable of
giving fair and clear warning to public officials,' rather, the
existence of fair and clear warning depends on whether[] 'in the
light of pre-existing law' the unconstitutionality of the
challenged conduct is 'apparent.'" Id. (citations omitted) (first
quoting United States v. Lanier, 520 U.S. 259, 271 (1997), then
quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). In fact,
the cases described do not present a general statement of law but
rather describe situations quite similar to what Wadsworth
experienced here. Moreover, the students in those cases were
- 44 - arguably far less vulnerable than Wadsworth was and the power
differential between the victims and their perpetrators was, in
comparison, arguably much smaller than the student-principal
dynamic at play here. Each of the cases discussed above, with the
exception of Hutchison, involved university students, and, given
that students in higher education are generally older and less
vulnerable than high school students, it is particularly apparent
that the legal principles established in these cases apply equally,
if not with more force, to teachers and administrators in the high
school setting. Given the facts and holdings in these cases and
the record in the present case, a reasonable jury could conclude
that Principal Cavanaugh sexually harassed Wadsworth in violation
of her equal protection rights, and we have no doubt that, assuming
Cavanaugh did so, a reasonable high school teacher or administrator
would understand that the described conduct would violate the
student's constitutional rights.13
B. Claims Against Nguyen
Now, we turn to whether the district court erred in
dismissing the supervisor-liability, equal protection, and
substantive due process claims against Nguyen. We first address
13To the extent the district court and Cavanaugh believe that in order for case law to be clearly established it must not involve hostility or direct sexual advances, we note that none of the cases relied on here depended on hostility or direct sexual advances to conclude that sexual harassment had occurred, and thus we reject this position.
- 45 - the district court's decision on Nguyen's motion to dismiss --
which concluded that Wadsworth did not have a viable
supervisor-liability or equal protection claim -- and then address
the substantive due process claim, which the court dismissed at
the summary judgment stage. For the reasons that follow, we affirm
both decisions.
1. Motion to Dismiss
As noted, the district court rejected Wadsworth's
supervisor-liability and equal protection claims at the motion to
dismiss stage. Accordingly, "[w]e review [the] district court's
grant of [the] motion to dismiss de novo." Torres-Estrada v.
Cases, 88 F.4th 14, 23 (1st Cir. 2023). "To assess whether a
complaint can withstand a Rule 12(b)(6) motion, we 'must accept as
true all well-pleaded facts indulging all reasonable inferences in
[Appellant's] favor.'" Rae v. Woburn Pub. Schs., 113 F.4th 86, 98
(1st Cir. 2024) (alteration in original) (quoting Fantini v. Salem
State Coll., 557 F.3d 22, 26 (1st Cir. 2009)).
We first lay out the relevant facts, taken from
Wadsworth's amended complaint. She alleged that Nguyen was a
social worker at Medomak, supervised by the Director of Student
Services. She also alleged that Nguyen, like other school staff,
was required to report "possible incidents of discrimination or
harassment" and that a student may also report instances of sexual
harassment. Relevant to Nguyen's particular conduct, Wadsworth
- 46 - alleged that she asked Nguyen about the propriety of certain things
Principal Cavanaugh did -- namely, giving Wadsworth personal
hygiene products, taking her to a doctor's appointment, and
advising her that she should take birth control pills -- and he
responded that nothing was inappropriate and that Principal
Cavanaugh was "just trying to be a 'father figure.'" She alleged
that Nguyen witnessed Cavanaugh comment on Wadsworth's "looks and
clothing choices." Following Cavanaugh's suspension, she alleged
that Nguyen called her into his office to tell her that "Cavanaugh
had a drinking problem."
Accordingly, she alleged that "Nguyen became aware
of . . . [Principal] Cavanaugh's inappropriate behavior toward
[Wadsworth] in 2016" and, despite this knowledge and "duty to
report," he failed to "institute corrective measures to protect
[Wadsworth]" although he had the "authority" to do so. Finally,
she alleged that once the relationship between Principal Cavanaugh
and Wadsworth was reported, Cavanaugh was put on leave and the
abuse ended. Finally, Wadsworth alleged that Nguyen "deprived
[her] of her rights by, among other acts and omissions, his failure
to protect [Wadsworth] when she complained about sexual harassment
and discrimination by . . . Cavanaugh."
- 47 - a. Supervisor Liability
Here, Wadsworth appeals the district court's dismissal
of her supervisor-liability claim against Nguyen.14 The district
court based its decision on narrow grounds, determining that as an
initial matter Wadsworth's supervisor-liability claim failed
because she had presented "no facts [to] establish that Mr. Nguyen
had any control over [Principal] Cavanaugh." Wadsworth argues
that the district court applied the incorrect test to determine if
Nguyen had control over Cavanaugh. Specifically, she argues that
the district court erroneously required Nguyen to be Cavanaugh's
"formal supervisor" to be liable under this theory. She then
argues that, under the correct test, the alleged facts show that
Nguyen had the necessary control over Principal Cavanaugh. While
we agree that a defendant need not be a "formal supervisor" to be
liable, we disagree with Wadsworth that the district court applied
14 To hold a supervisory defendant liable under § 1983, a plaintiff must show "that (1) 'the conduct complained of was committed by a person acting under color of state law; and (2) [that] this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.'" Lipsett v. Univ. of P.R., 864 F.2d 881, 896 (1st Cir. 1988) (alteration in original) (quoting Voutour v. Vitale, 761 F.2d 812, 819 (1st Cir. 1985)). Here, the connection to equal protection is that Wadsworth alleges that Cavanaugh's conduct violated her equal protection rights. The supervisor-liability claim is then premised on the argument that Nguyen should be liable for that violation.
- 48 - the incorrect test and came to the incorrect outcome. Accordingly,
we affirm the dismissal.
"Generally, a supervisor cannot be held liable under
§ 1983 on a respondeat superior theory -- a 'supervisor's liability
must be premised on [their] own acts or omissions' and does not
attach automatically even if a subordinate is found liable."
Justiniano v. Walker, 986 F.3d 11, 20 (1st Cir. 2021) (quoting
Guadalupe-Báez v. Pesquera, 819 F.3d 509, 515 (1st Cir. 2016)).
"Under such a theory, a supervisor may be brought to book even
though [their] actions have not directly abridged someone's
rights; it is enough that [they have] created or overlooked a clear
risk of future unlawful action by a lower-echelon actor over whom
[they] had some degree of control." Camilo-Robles v. Zapata
(Zapata), 175 F.3d 41, 44 (1st Cir. 1999). Liability attaches
where "(1) the behavior of [the] subordinates results in a
constitutional violation, and (2) the [supervisor]'s action or
inaction was affirmative[ly] link[ed] to that behavior in the sense
that it could be characterized as supervisory encouragement,
condonation or acquiescence[,] or gross negligence amounting to
deliberate indifference." Pineda v. Toomey, 533 F.3d 50, 54 (1st
Cir. 2008) (first and fourth alterations added) (quoting Lipsett,
864 F.2d at 902).
Thus, we focus on whether Nguyen can be considered a
"supervisor." As we have explained, we do not define "supervisor"
- 49 - rigidly, rather "supervisor" is "defined loosely to encompass a
wide range of officials who are themselves removed from the
perpetration of the rights-violating behavior." Camilo-Robles v.
Hoyos (Hoyos), 151 F.3d 1, 6-7 (1st Cir. 1998). Again, in order
to qualify as a "supervisor," Nguyen must have had "some degree of
control" over Principal Cavanaugh. Zapata, 175 F.3d at 44.
Wadsworth argues that our decision in Hoyos is directly
applicable. In Hoyos, this court affirmed a decision denying two
psychiatrists summary judgment on a § 1983 supervisor-liability
claim. 151 F.3d at 12. The psychiatrists had found a suspended
police officer "free from mental illness and fit for active duty
(with no restrictions)," id. at 5, despite their knowledge of the
officer's "stunning history of violence," id. at 11, which included
a shootout with "two unarmed, law-abiding neighborhood residents,"
wherein "he shot both of them, wounding one and killing the other,"
and threatening to kill a fellow officer, id. at 5. Following
this finding, the police department "promptly rearmed [the
suspended officer]," who ultimately arrested and assaulted a
security guard who advised the officer that he could not park in
a parking area reserved for a judge. Id. at 4. The security guard
then accused the psychiatrists of "deliberate indifference in
carrying out their supervisory responsibilities." Id. at 4-5. On
appeal, the psychiatrists contended that they were entitled to
qualified immunity; in assessing that claim, we considered whether
- 50 - the psychiatrists "functioned merely as advisors," ultimately
rejecting that argument. Id. at 12. In so doing, we explained
that the record established that once the psychiatric reviewers
gave the go-ahead, the officer under review would be rearmed and
returned to service. Id.
Wadsworth says the same is true here: Nguyen "could have
easily stopped the harassment." Specifically, she says that
because Nguyen was required to report the harassment he witnessed
and because once the behavior was reported Cavanaugh was suspended,
"a court may reasonably infer that a report by Mr. Nguyen would
have quickly stopped Principal Cavanaugh." We are not persuaded.
The allegations merely establish that Nguyen had options
to try to stop Cavanaugh, but this is not enough to conclude that
Nguyen had any control over Principal Cavanaugh. In Hoyos, the
record made clear that both the psychiatrists themselves and those
within the police department understood that "once the examining
psychiatrist 'certifies in writing that [an officer] is authorized
to bear arms [the police department would] proceed to give back
the weapon.'" 151 F.3d at 12 (quoting police superintendent's
testimony). Here, Wadsworth has not alleged that Nguyen had
similar control over Cavanaugh; it is not enough here to say that
just because Cavanaugh's behavior stopped after it was finally
reported, Nguyen also could have stopped the conduct by reporting
it and therefore he had control over Principal Cavanaugh. Our
- 51 - conclusion is further bolstered by the allegation that other staff
were mandated reporters. Under Wadsworth's logic, any staff member
who was required to report harassment was Principal Cavanaugh's
"supervisor." That cannot be the case. Thus, Wadsworth has not
established that the requirement to report misconduct necessarily
results in control over the alleged bad actor.15
b. Equal Protection
Next, Wadsworth challenges the district court's
dismissal of her equal protection claim against Nguyen. As we
have already explained, a standard equal protection claim such as
this requires a plaintiff to establish "that '(1) the person,
compared with others similarly situated, was selectively treated;
and (2) that such selective treatment was based on impermissible
considerations such as race, religion, intent to inhibit or punish
the exercise of constitutional rights, or malicious or bad faith
intent to injure a person.'" Davis, 802 F.3d at 132-33 (quoting
Rubinovitz, 60 F.3d at 910).
Below, the district court determined that Wadsworth had
failed to allege a viable claim because she had not shown that
15To the extent Wadsworth argues that Nguyen had control over Cavanaugh because Nguyen stopped Principal Cavanaugh from taking Wadsworth to a doctor's appointment and advised him against having Wadsworth come live with him, we cannot consider these arguments as this claim arises from a motion to dismiss and the asserted facts are contained in the summary judgment record and not the operative complaint.
- 52 - "Nguyen selectively treated [her] based on her sex, that [she] had
putative comparators," or that "Nguyen acted with the purpose of
discriminating on the basis of sex." The court explained that the
complaint did not allege that Nguyen treated Wadsworth any
differently from other students and did not even mention any other
students that Nguyen had interacted with. Wadsworth now contends
that because she is female and Medomak is a public school, a court
can infer that Nguyen worked with male students and can further
infer, considering the sex-based allegations at issue, that Nguyen
would have treated a male student differently. Wadsworth's
arguments are not persuasive.
In essence, Wadsworth is asking us to hold that an equal
protection claim needs no supporting allegations. There are no
allegations that would permit a court or jury to infer that Nguyen
was motivated by an intent to discriminate against Wadsworth based
on her sex or that he treated her any differently than he would
another student. In fact, there are no allegations whatsoever
relevant to Nguyen's motivation or to his interactions with any
other students. Accordingly, we affirm the district court's
dismissal of this claim.
2. Motion for Summary Judgment: State-Created Danger
Wadsworth next challenges the district court's grant of
summary judgment in favor of Nguyen on her state-created-danger
claim. A state-created-danger claim has four basic elements; a
- 53 - plaintiff must establish that (1) "a state
actor . . . affirmatively acted to create or enhance a danger to
the plaintiff;" (2) "the act or acts created or enhanced a danger
specific to the plaintiff and distinct from the danger to the
general public;" (3) "the act or acts caused the plaintiff's harm;"
and (4) "the state actor's conduct, when viewed in total, shocks
the conscience." Irish, 979 F.3d at 75.
Nguyen's motion for summary judgment challenged only the
first and fourth elements, so the district court confined its
analysis to those two aspects of the claim. The district court
determined that "[a] reasonable juror could conclude that by
normalizing [Principal] Cavanaugh's behavior Mr. Nguyen plausibly
increased [Principal] Cavanaugh's access to Ms. Wadsworth to
continue sexually harassing her, and [thus] she has successfully
established the affirmative action [requirement] of her
state-created[-]danger theory." (Internal quotation marks and
citation omitted). However, the court then determined that
Wadsworth could not "clear the high bar of establishing that Mr.
Nguyen's behavior shocked the conscience." In so concluding, the
district court emphasized the lack of any allegation that "Nguyen
had knowledge of the frequency or sexually explicit content of the
text messages." The court went on to conclude that even if
Wadsworth had established a constitutional violation, qualified
immunity protected Nguyen.
- 54 - Now, Wadsworth contends that the record contains
evidence that would allow a juror to conclude that Nguyen had
knowledge of the extent of Principal Cavanaugh's harassment and
that qualified immunity could not protect Nguyen. Nguyen responds
that Wadsworth has waived review. We agree.
First, Wadsworth has failed to address the crux of the
district court's decision: Nguyen's knowledge (or lack thereof) of
the extent and sexual nature of the text messages Principal
Cavanaugh sent Wadsworth. Further, she provided no case law to
support her position that Nguyen's conduct exceeds the high bar
set by the "shocks the conscience" requirement. Moreover, in
addressing qualified immunity, Wadsworth merely refers us to the
section of her brief addressing the doctrine with respect to
Cavanaugh. As Nguyen points out, the authorities cited therein
are applicable to the alleged perpetrators of sexual harassment,
not to encouraging bystanders, and as such do not address the
question -- as framed by the district court -- of whether "Nguyen
had fair notice that his particular conduct was unconstitutional."
Accordingly, Wadsworth has waived review of the district court's
decision granting Nguyen summary judgment on her
state-created-danger claim. See Segrain, 118 F.4th at 71 ("[I]t
is not enough merely to mention a possible argument in the most
skeletal way, leaving the court to do counsel's work, create the
ossature for the argument, and put flesh on its bones." (quoting
- 55 - United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990))); Montany
v. Univ. of New England, 858 F.3d 34, 42 (1st Cir. 2017) ("[I]ssues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived." (quoting Zannino,
895 F.2d at 17)). Accordingly, we must affirm the district court's
grant of summary judgment in favor of Nguyen on the
state-created-danger claim.
C. Claims Against MSAD
Finally, we address Wadsworth's appeal of the district
court's grant of summary judgment in favor of MSAD on her § 1983
and Title IX claims. For the reasons that follow, we affirm the
court's grant of summary judgment with respect to the § 1983
municipal liability claim but reverse the decision with respect to
the Title IX claim.
1. Municipal Liability
Wadsworth's § 1983 claim against MSAD was premised on
two different theories: (1) that MSAD failed to "follow, apply, or
enforce laws preventing harassment and discrimination"
("insufficient policy claim") and (2) that MSAD failed to "train
and supervise employees about their obligation to properly
investigate and address incidents of sexual harassment in public
- 56 - schools" ("failure to train claim").16 The district court
determined that neither could proceed, and Wadsworth now appeals.
Before addressing the individual theories, we set forth
the generally applicable principles. "A municipality or other
local government may be liable under [§ 1983] if the governmental
body itself 'subjects' a person to a deprivation of rights or
'causes' a person 'to be subjected' to such deprivation." Connick
v. Thompson, 563 U.S. 51, 60 (2011) (citing Monell v. N.Y. City
Dep't of Soc. Servs., 436 U.S. 658, 692 (1978)). Monell liability
cannot be premised on vicarious liability but must be based on the
governmental body's "own illegal acts." Id. (emphasis omitted).
"[I]t is only when the governmental employees' 'execution of a
government's policy or custom . . . inflicts the injury' and is
the 'moving force' behind the constitutional violation that a
municipality can be liable." Young v. City of Providence ex rel.
Napolitano, 404 F.3d 4, 25 (1st Cir. 2005) (omission in original)
(quoting Monell, 436 U.S. at 694). The two basic elements are
whether Wadsworth's "harm was caused by a constitutional
16 As with the supervisor-liability claim, the connection to equal protection is that Wadsworth alleges that Cavanaugh's conduct violated her equal protection rights. The municipal-liability claim is then premised on the argument that MSAD should be liable for that violation. See Abdisamad v. City of Lewiston, 960 F.3d 56, 60 (1st Cir. 2020) (explaining that municipal liability is method by which governmental entities are held responsible for policies or customs responsible for constitutional violations or injuries).
- 57 - violation" and whether the governmental entity, here MSAD, can be
held "responsible for that violation." Id. at 25-26.
A governmental entity cannot be held responsible unless
"[an] action pursuant to official municipal policy caused their
injury," Cosenza v. City of Worcester, 120 F.4th 30, 38 (1st Cir.
2024) (quoting Connick, 563 U.S. at 60), and "municipal
decisionmakers either knew or should have known that training was
inadequate but nonetheless exhibited deliberate indifference to
the unconstitutional effects of those inadequacies," id. (quoting
Haley v. City of Bos., 657 F.3d 39, 51 (1st Cir. 2011)).
And, of course, there must be an "underlying,
identifiable constitutional violation[]." Bannon v. Godin, 99
F.4th 63, 88 (1st Cir. 2024) (quoting Lachance v. Town of Charlton,
990 F.3d 14, 31 (1st Cir. 2021)). Wadsworth advances the theory
that the policies and training were unclear or lacking when it
came to reporting instances of sexual harassment, particularly
where the alleged harasser was the principal, thus causing the
harassment to continue unchecked. See Plamp v. Mitchell Sch. Dist.
No. 17-2, 565 F.3d 450, 459 (8th Cir. 2009) ("A school district
can be liable for civil-rights violations under § 1983 either for
failing to receive, investigate, and act upon complaints of
[unconstitutional conduct] or for failing to train its employees
to prevent or terminate [unconstitutional conduct]." (alterations
in original) (quoting P.H. v. Sch. Dist. of Kansas City, 265 F.3d
- 58 - 653, 658 (8th Cir. 2001))). For the purposes of our review, we
assume without deciding that this is a viable theory of liability.
a. Insufficient Policy
Here, Wadsworth's theory is that MSAD deprived her of
her rights by failing to follow, apply, or enforce policies
preventing harassment and discrimination. In particular, she
focuses on MSAD's policy on reporting sexual harassment, which she
argues "contained a 'glaring hole' because," in her case, it led
to a situation where "sexual harassment complaints could only be
made to the harasser." We agree with the district court that the
record does not reveal the existence of any gaps in the policy.
We begin by setting forth some additional relevant
facts. While Wadsworth was a student at Medomak, MSAD had a
written sexual harassment policy that included a procedure for
reporting sexual harassment. Medomak employees were provided with
copies of the policy. Among other things, the policy provides:
"[a]ny individual who believes that a student has been
discriminated against or harassed should report their concern
promptly to the building principal and utilize [the] complaint
procedure." The policy further provided that "[s]chool staff shall
report possible incidents of discrimination or harassment of
students to the building principal." The policy then directs the
"building principal" to "promptly inform the Superintendent" and
the subject of the complaint that a complaint exists. The policy
- 59 - then outlines the possible next steps for the superintendent, or
their "designee," to take. The policy itself does not define
"building principal."
Superintendent Nolan testified at deposition that
"building principal" referred to both the principal and the
assistant principals. He further explained that if an assistant
principal received a report, they would hand the report to the
principal but "if there was a conflict" they would send the report
directly to the superintendent. Assistant Principal Pease
testified that, if the principal was the alleged harasser, she
understood that she should report the harassment to either the
superintendent or the superintendent's designee. Philbrook
testified that, if the principal were the harasser, she would go
to either the superintendent or the police.
In its motion for summary judgment, MSAD argued that
there was no "hole" in the policy because "the record establishes
that school employees were expected to and believed they were
required to report" sexual harassment committed by the principal
directly to the superintendent and that no employee made such a
report about Principal Cavanaugh because "the conduct at issue did
not appear . . . to be sexual harassment." It also argued that
there was no causal link between the harassment policy and
Wadsworth's alleged injuries.
- 60 - The district court agreed with MSAD's assessment and
determined that the record established that, "[i]n a case where
the head principal was the perpetrator of the harassment, the
policy d[id] not prevent reporting; instead students or staff could
report harassment to an assistant principal" who could in turn
"elevate reports of harassment to the [s]uperintendent." It also
agreed that there was no indication in the record that any staff
member or student believed that Principal Cavanaugh was sexually
harassing Wadsworth.
On appeal, Wadsworth mounts no specific attack on the
district court's reasoning or conclusion. And, after careful
review of the record, we agree with the district court. First,
the testimony establishes that although the policy was facially
vague as to who the "building principal" was, it was understood
that it referred to the principal as well as the assistant
principals. Further, nothing in the record suggests that reports
of Principal Cavanaugh's conduct did not reach the superintendent
because staff assumed they could only pass the message to the
abuser himself.17 Nor does Wadsworth make any argument that if
Nguyen testified that he understood that he could report 17
sexual harassment either to "an affirmative action officer" within the superintendent's office (at the time, Cavanaugh) or to the Human Rights Commission. This testimony merely establishes that he understood that he had multiple options when it came to reporting harassment, undercutting Wadsworth's theory that staff understood they could only report Cavanaugh's abuse to Principal Cavanaugh himself.
- 61 - such an assumption existed it was caused by a lack of training.
Accordingly, we affirm the district court's grant of summary
judgment on Wadsworth's insufficient policy claim.
b. Failure to Train
We next turn to Wadsworth's theory that MSAD failed to
provide any training on sexual harassment and how to report it.
Wadsworth focuses on an alleged lack of training on how to report
sexual harassment -- she does not contend that MSAD failed to
provide training on how to identify sexual harassment. For reasons
explained below, we conclude that her claim cannot survive.
Although the district court concluded that the record
established that some training was provided and was not so
inadequate as to show deliberate indifference, because there is
some dispute between the parties as to whether MSAD provided any
training or guidance,18 we assume without deciding, in Wadsworth's
favor, that the school provided no training on how to report sexual
harassment. See Young, 404 F.3d at 28 (noting there were genuine
issues of material fact regarding existence of training and
assuming there was no training for the purposes of review). We
18MSAD contends that it "provided sexual harassment training to administrators and staff on a yearly basis." However, as Wadsworth points out, Nolan explained that Principal Cavanaugh provided this "training," while Cavanaugh testified that he was not qualified to provide any training on sexual harassment and merely presented a PowerPoint slideshow on the topic. Further, a copy of the presentation slides is not a part of the record.
- 62 - then conclude that Wadsworth cannot establish that MSAD acted with
deliberate indifference and, accordingly, affirm the district
court. See Caruso v. Delta Air Lines, Inc., 113 F.4th 56, 70 (1st
Cir. 2024) (at summary judgment, we "may affirm 'on any ground
supported by the record'" (quoting Burt v. Bd. of Tr. of Univ. of
R.I., 84 F.4th 42, 54 (1st Cir. 2023))).
"Triggering municipal liability on a claim of failure to
train requires a showing that municipal decisionmakers either knew
or should have known that training was inadequate but nonetheless
exhibited deliberate indifference to the unconstitutional effect
of those inadequacies." Cosenza, 120 F.4th at 38 (quoting Haley,
657 F.3d at 52). Deliberate indifference requires a showing that
MSAD disregarded a known or obvious risk of serious harm following
from its failure to develop an adequate training program. See
Young, 404 F.3d at 28. "Such knowledge can be imputed to a
municipality through a pattern of prior constitutional
violations." Id. Alternatively, in very rare cases, a pattern of
violations may not be needed so long as the "'violation of [a]
federal right[]' is 'a highly predictable consequence of a failure
to equip [governmental actors] with specific tools to handle
recurring situations.'" Id. at 28 (first and second alterations
in original) (quoting Brown, 520 U.S. at 409)). Wadsworth cannot
show deliberate indifference under either avenue.
- 63 - The record contains no information regarding any pattern
wherein MSAD school principals, or any other staff member, harassed
a student and the harassment did not stop because staff did not
know how to report the harassment. Wadsworth nevertheless suggests
that no such pattern is needed in her case because this is the
type of situation where the consequences of not training staff
would have been obvious to MSAD. We disagree.
To begin, Wadsworth has failed to explain how these
circumstances fit within the rare category where a plaintiff need
not point to a pattern of prior violations. See Cosenza, 120 F.4th
at 28 ("Typically, '[a] pattern of similar constitutional
violations by untrained employees' is necessary to demonstrate
deliberate indifference." (quoting Connick, 563 U.S. at 62)).
Further, we are not aware of any case that supports Wadsworth's
position. Indeed, there is nothing about this highly unusual
situation that would suggest that failing to train school staff on
how to report sexual harassment when the harasser is the principal
would mean that no staff would report sexual harassment that they
were aware of. Especially in light of the existing sexual
harassment policy and reporting procedure, which were provided to
staff, we cannot see how a failure to train employees "is so likely
to result in a violation of constitutional rights that the need
for training is patently obvious." Plamp, 565 F.3d at 462 (quoting
Thelma D. v. Bd. of Educ. of City of St. Louis, 934 F.2d 929, 934
- 64 - (8th Cir. 1991)) (concluding that in light of school policies on
sexual harassment and reporting, failure to train merely "raise[d]
a question about whether the program was negligently
administered"). We do, however, echo the district court's
admonition that whether MSAD's training program -- or lack
thereof -- is a "best practice" is not currently before us. Thus,
we also affirm the district court's grant of summary judgment to
MSAD on Wadsworth's failure to train claim.
2. Title IX
Finally, we turn to the Title IX claim against MSAD and
conclude that the court erred in granting MSAD summary judgment as
to that claim.
"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." Doe v.
Pawtucket Sch. Dep't, 969 F.3d 1, 7 (1st Cir. 2020) (citations
omitted). A Title IX "violation can occur when a Title IX funding
recipient is deliberately indifferent to known acts of sexual
harassment of a student by a teacher." Id. Liability is
"predicated upon notice to an 'appropriate person.'" Gebser v.
Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998) (citing 20
U.S.C. § 1682). As the Eleventh Circuit explained, the Gebser
framework involves three inquiries: (1) did the plaintiff identify
an "appropriate person" ("i.e., a school district official with
- 65 - the authority to take corrective measures in response to actual
notice of sexual harassment"), (2) was the substance of the actual
notice "sufficient to alert the school official of the possibility
of . . . harassment," and (3) did that official "exhibit
deliberate indifference to the harassment." Doe v. Sch. Bd. of
Broward Cnty., 604 F.3d 1248, 1254 (11th Cir. 2010); see Grace, 85
F.4th at 6, 11.
Below, the district court determined that Assistant
Principals Pease and Philbrook were both appropriate persons to
notify under Title IX. The district court went on, however, to
determine that neither had notice of the harassment. Accordingly,
the court granted MSAD summary judgment on the Title IX claim. On
appeal, Wadsworth argues that the two assistant principals had
notice. MSAD responds that the assistant principals were not
appropriate persons and that, in any event, neither assistant
principal had notice. We reject MSAD's arguments and agree with
Wadsworth insofar as we conclude that a reasonable jury could find
that the assistant principals had notice of the harassment.
Accordingly, the district court erred in granting MSAD summary
judgment on the Title IX claim.
As an initial matter, we reject MSAD's alternative
grounds of affirmance that the assistant principals were not
appropriate persons under Title IX. An appropriate person is an
"official . . . with authority to take corrective action to end
- 66 - the discrimination." Gebser, 524 U.S. at 288, 290. Whether an
official has such authority is a factual inquiry that depends on
the duties the school delegates to them. See Santiago v. Puerto
Rico, 655 F.3d 61, 74 (1st Cir. 2011).
In determining that the assistant principals were
appropriate persons under Title IX, the district court focused on
their high rank as officials within the school and their authority
to respond under the school's sexual harassment policy. MSAD
cursorily argues that this was error, contending that because the
assistant principals did not have disciplinary authority over
Cavanaugh and because they merely had a duty to pass complaints on
to the superintendent, they could not be appropriate persons.
However, the district court expressly acknowledged that the
assistant principals had no disciplinary power over Cavanaugh in
reaching its conclusion. Furthermore, the assistant principals'
roles under the sexual harassment policy were not confined to
merely reporting complaints; their receipt of the complaint
initiated the "complaint handling" procedure as they would alert
both the superintendent and the person accused that a complaint
had been received. Thus, we are not convinced that the court's
decision was in error.19
19Wadsworth also argues that Nguyen was an appropriate person and had sufficient knowledge under Title IX. However, given our decision with respect to the assistant principals' knowledge, we need not consider this argument.
- 67 - We next consider whether a reasonable jury could
conclude that the assistant principals had notice. In deciding
the issue, the district court applied a strict standard, explaining
that "'actual knowledge' generally requires highly reliable and
similar reports of inappropriate teacher behavior, meaning that
'rumors, investigations, and student statements' do not qualify."
(Quoting Doe v. Bradshaw, 203 F. Supp. 3d 168, 185 (D. Mass.
2016)). We reject the district court's conclusion that "[w]hile
the school perhaps ought to have known that Mr. Cavanaugh was
behaving inappropriately . . . it cannot be said that the school
actually knew of his harassment." As we explain below, it is
enough if a reasonable jury could conclude that a school "ought
to" know that harassment is occurring -- if MSAD had information
that conveyed a substantial risk of ongoing harassment, that is
enough regardless of whether the relevant school officials excused
the conduct.
The inquiry as to whether Assistant Principals Pease and
Philbrook had notice is an objective one. See Grace, 85 F.4th at
6, 11 (concluding that jury could find notice despite dean's view
that conduct was not bullying); see also Doe v. Fairfax Cnty. Sch.
Bd., 1 F.4th 257, 263, 268 (4th Cir. 2021) (notice test is
objective). Further, Pease and Philbrook only needed notice that
there was a substantial risk or "possibility" that harassment was
occurring; in other words, the school did not need to have detailed
- 68 - proof of harassment. See Gebser, 524 U.S. at 291; see also Escue
v. N. Okla. Coll., 450 F.3d 1146, 1154 (10th Cir. 2006) (school
needed "actual knowledge of a substantial risk of abuse to students
based on prior complaints by other students" (quoting Doe A. v.
Green, 298 F. Supp. 2d 1025, 1033 (D. Nev. 2004))). Finally, there
does not need to be a singular report exposing the alleged
harassment; rather, notice is based on the totality of
circumstances. See Forth v. Laramie Cnty. Sch. Dist. No. 1, 85
F.4th 1044, 1055 (10th Cir. 2023).
Thus, construing the record in the light most favorable
to Wadsworth, a reasonable jury could find that MSAD had actual
knowledge at some point before Superintendent Nolan was alerted to
the problem. As the district court explained, and as MSAD now
acknowledges, the assistant principals were aware of Cavanaugh's
habit of pulling Wadsworth out of class, that he referred to her
as "cupcake," that she was working for him to pay off the car he
gave her, that he wanted to invite her to live with him, and that
they communicated by text message (again, there is nothing in the
record to suggest that they were aware of the content and extent
of any of the messages).
Specifically, Wadsworth testified that Assistant
Principal Philbrook was present for and participated in at least
one conversation with Cavanaugh about how Wadsworth was "top shelf"
and a pretty girl. She also testified that Philbrook heard
- 69 - Cavanaugh refer to Wadsworth as "cupcake" on at least one occasion
and witnessed Cavanaugh hand Wadsworth an envelope of cash
(presumably the money he gave her for prom). She further testified
that Philbrook was present for at least part of a meeting Wadsworth
had with Nguyen where she explained that Cavanaugh's various
nicknames for her embarrassed her.
School Resource Officer Spear testified that on
September 19, after pulling over Wadsworth, he discussed the
situation with Assistant Principal Philbrook who explained that
Cavanaugh "had asked [Wadsworth] if she was interested in moving
in" with him. Philbrook explained that Cavanaugh had told her
that when Cavanaugh asked his wife about Wadsworth moving in, his
wife said "let me go get a 21-year[-]old boy to help me out if
[Wadsworth's] going to be living in our house," further noting
that "he's going to be jacked." Officer Spear also explained that
Philbrook told him "I don't think anything sexual in nature has
happened" but that "it certainly doesn't look good on the surface."
According to Officer Spear, Philbrook explained that she thought
Cavanaugh was "just being blinded by [Wadsworth's] good looks" and
was "trying to look out for her" but was "crossing boundaries."
Finally, Superintendent Nolan testified that Cavanaugh's conduct
related to meeting Wadsworth during school hours and his providing
her with a car, independently, created a cause for concern.
- 70 - Taking everything together, a reasonable jury could
conclude Assistant Principals Pease and/or Philbrook had
information such that there was a substantial risk that Cavanaugh
was sexually harassing Wadsworth. Thus, the district court erred
in granting MSAD summary judgment on this basis, and we reverse
the district court's decision as to the Title IX claim and remand
for further proceedings consistent with this opinion.
IV. Conclusion
For the forgoing reasons, we affirm in part and reverse
in part the district court's grant of summary judgment in favor of
Cavanaugh, affirm the district court's order dismissing the
supervisor-liability claim against Nguyen, affirm the court's
grant of summary judgment in favor of Nguyen, affirm in part and
reverse in part the district court's grant of summary judgment in
favor of MSAD, and remand for further proceedings consistent with
this opinion. Costs are awarded to Wadsworth.
-Concurring Opinion Follows-
- 71 - RIKELMAN, Circuit Judge, concurring. I join the court's
thorough opinion today. I write separately to explain my view of
the correct framework for analyzing a federal equal protection
claim based on sexual harassment.
First, as I understand current jurisprudence, comparator
evidence is not always required to bring an equal protection claim,
regardless of whether the claim involves sexual harassment or a
different type of illegal discrimination. Decades ago, the Supreme
Court held that to succeed on an equal protection claim under the
Fourteenth Amendment, a plaintiff must convince a court that the
government acted with discriminatory animus or purpose. See
Washington v. Davis, 426 U.S. 229, 242 (1976) (holding disparate
impact "[s]tanding alone" is not constitutionally actionable in
context of race discrimination claim); Personnel Adm'r of Mass. v.
Feeney, 442 U.S. 256, 274-76 (1979) (same for sex discrimination).
But the Supreme Court has never held that comparator
evidence -- proof that the government treated similarly situated
individuals differently -- is always necessary to demonstrate
discriminatory purpose. Instead, evidence that similarly situated
individuals received preferential treatment as compared to the
plaintiff is just one way to prove intentional discrimination.
See, e.g., Davis, 426 U.S. at 242 (discriminatory purpose should
be "inferred from the totality of the relevant facts"); Vill. of
Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266
- 72 - (1977) ("Determining whether invidious discriminatory purpose was
a motivating factor demands a sensitive inquiry into such
circumstantial and direct evidence of intent as may be
available."); cf. Fincher v. Town of Brookline, 26 F.4th 479, 486
(1st Cir. 2022) (comparator evidence is relevant "at least in the
absence of direct proof" of discriminatory animus).
Indeed, the Supreme Court has repeatedly recognized, in
a variety of legal contexts, that a plaintiff can prove intentional
discrimination with various forms of evidence. See, e.g.,
Arlington Heights, 429 U.S. at 267-68 (explaining, in equal
protection case challenging government policy, that "historical
background of the decision," "specific sequence of events leading
up to the challenged decision," "[d]epartures from the normal
procedural sequence," and "legislative or administrative history"
may all be evidence of discriminatory purpose); Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) (holding, in Age
Discrimination in Employment Act context, that "one form of
circumstantial evidence that is probative of intentional
discrimination, and . . . may be quite persuasive" is evidence
that employer's proffered explanation for adverse employment
action is false); Int'l Bhd. of Teamsters v. United States, 431
U.S. 324, 339 (1977) (explaining, in Title VII case, that "[w]e
have repeatedly approved the use of statistical proof . . . to
establish a prima facie case of racial discrimination"); cf. EEOC
- 73 - v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 770, 775 (2015)
(employee could bring Title VII religious discrimination claim
without comparator evidence by showing that employer knew employee
wore a headscarf for religious purposes and refused to hire her
because of the headscarf). We have followed suit. See, e.g.,
Ripoli v. Dep't of Hum. Servs., Off. of Veterans Servs., 123 F.4th
565, 577-78 (1st Cir. 2024) (concluding, in Title VII case, that
plaintiff had created genuine issue of material fact about
discriminatory purpose, even before looking to her comparator
evidence).
Our sister circuits agree that comparator evidence is
not necessary for all equal protection claims.20 As the Ninth
20 That said, appellate courts, including our court, have consistently required comparator evidence for two types of equal protection claims: selective enforcement and class-of-one claims. See, e.g., Rubinovitz v. Rogato, 60 F.3d 906, 909-10 (1st Cir. 1995) (selective enforcement/class-of-one case concerning local zoning and building code regulations); Frederick Douglass Found., Inc. v. District of Columbia, 82 F.4th 1122, 1137 (D.C. Cir. 2023) (selective enforcement case). Given that government officials may legally exercise discretion in deciding when to bring enforcement actions, "[s]elective enforcement claims must clear a high hurdle." Frederick Douglass Found., 82 F.4th at 1140. Further, in such cases, the government's conduct toward the plaintiff may not evince any potentially discriminatory motive. See Rubinovitz, 60 F.3d at 908-09, 911. Thus, the plaintiff must rely on evidence that, "compared with others similarly situated," they were targeted for enforcement based on impermissible considerations. Id. at 909-10. So too, in class-of-one cases where the plaintiff alleges that they were singled out for unfavorable treatment based on their own unique -- and unprotected -- characteristic, "proof of a similarly situated, but differently treated, comparator is essential." Snyder v. Gaudet, 756 F.3d 30, 34 (1st. Cir. 2014); see also, e.g., Vill. of Willowbrook v. Olech, 528 U.S. 562, 564
- 74 - Circuit has explained, "a relevant comparator is not an element of
a disparate treatment claim" under the Equal Protection Clause (or
anti-discrimination statutes); rather, it is merely one type of
evidence that can be used to prove discriminatory purpose. Ballou
v. McElvain, 29 F.4th 413, 424 (9th Cir. 2022) (rejecting need for
comparator evidence in non-sexual-harassment gender discrimination
case concerning failure to promote). Were there such a "relevant
comparator" requirement, the Ninth Circuit reasoned, even direct
evidence of discrimination (e.g., an employer's statement that he
would never promote a woman) "would not support a disparate
treatment claim unless [the employer] promoted an identical male
comparator." Id. at 426. The court concluded that this result
would be "contrary to the [Fourteenth] [A]mendment's fundamental
guarantee of 'equal protection of the laws.'" Id. at 425 (quoting
U.S. Const. amend. XIV, § 1).
The Second Circuit has likewise held that a plaintiff
bringing a race discrimination claim under the Equal Protection
Clause "need not plead or show the disparate treatment of other
similarly situated individuals." Pyke v. Cuomo, 258 F.3d 107, 109
(2d Cir. 2001). Pyke involved a claim that police had withheld
(2000) (per curiam) (plaintiffs stated class-of-one claim by alleging different treatment from similarly situated property owners); Buchanan v. Maine, 469 F.3d 158, 177-78 (1st Cir. 2006) (requiring evidence of similarly situated comparator where plaintiff alleged that, unlike other "high-risk patients," he did not receive an individualized support plan).
- 75 - protection from the plaintiffs because they were Native American.
Id. at 108. The district court granted summary judgment to the
police on the ground that the plaintiffs had failed to come forward
with comparator evidence, but the Second Circuit reversed,
explaining that such evidence was not required. See id. at 108-09.
It noted that "[i]t would be difficult, if not impossible, to find
other individuals whose situation is similar to Native Americans
living on a reservation," and that impossibility should not doom
the plaintiffs' case. Id. at 109; see also Lewis v. City of Union
City, 934 F.3d 1169, 1185 (11th Cir. 2019) (collapsing analysis
for Title VII and equal protection claims, then concluding it was
"perfectly logical" not to require comparator evidence in race and
gender discrimination cases, because "[a]mong other things, a
proper comparator simply may not exist"). The Second Circuit
cautioned that a contrary rule would allow the police to escape
liability even if they had denied protection to the plaintiffs
based on discriminatory animus against Native Americans, which was
"clearly not the law." Pyke, 258 F.3d at 109. The court concluded
by reiterating that "a plaintiff seeking to establish a violation
of equal protection . . . may proceed in 'several ways'" to prove
intentional discrimination. Id. at 110.
In my view, we should clarify that comparator evidence
is not required for every equal protection claim. To the extent
some of our precedent suggests otherwise, it appears to be
- 76 - inconsistent with Supreme Court case law and relies on analysis
designed for a narrow subset of equal protection claims: selective
enforcement and class-of-one claims.21
Second, regardless of whether comparator evidence is
necessary for other equal protection claims, I agree with the
court's holding that comparator evidence should not be required
for equal protection claims based on sexual harassment. As today's
opinion lays out and other courts have cogently explained, a
government official like Cavanaugh who engages in sexual
harassment has necessarily committed intentional discrimination.
Such intentional, discriminatory conduct is actionable under the
Equal Protection Clause.
For example, the Tenth Circuit has expressly disavowed
the need for comparator evidence to support an equal protection
21For instance, in a case in which a gay man brought a claim that he was "singled out for transfer because of his sexual orientation," we cited both Rubinovitz and Buchanan in requiring him to provide evidence that "heterosexual employees with similar rank and qualifications" were treated differently, even though his claim was not a selective enforcement or class-of-one claim. Ayala-Sepúlveda v. Municipality of San Germán, 671 F.3d 24, 29, 32 (1st Cir. 2012). And when a Black firefighter sued various local entities and officials for race discrimination, we again relied on Rubinovitz to impose a comparator evidence requirement; we also cited an older case for the same proposition. Alston v. Town of Brookline, 997 F.3d 23, 41 (1st Cir. 2021)(citing Dartmouth Rev. v. Dartmouth Coll., 889 F.2d 13, 19 (1st Cir. 1989)). But Dartmouth reiterates that "treatment toward others similarly situated can be used to demonstrate intent" -- not that such evidence is always necessary. 889 F.2d at 19 (emphasis added) (citing Arlington Heights, 429 U.S. at 266).
- 77 - claim based on sexual harassment, holding that a plaintiff who
brings such a claim "ha[s] no requirement to show she was treated
differently from a similarly situated individual." Eisenhour v.
Weber Cnty., 744 F.3d 1220, 1234 (10th Cir. 2014). In Eisenhour,
a county court administrator presented evidence that her direct
supervisor, a judge, "wrote an inappropriate poem about her, told
her that he had a dream about her in which she was naked, and
rubbed his groin against her," which the court concluded was
sufficient for a jury to "infer that she had been discriminated
against because of her sex," even in the absence of evidence about
how the judge treated other employees. Id. at 1234-35.
Likewise, the Seventh Circuit determined that a police
officer could be liable under the Equal Protection Clause for his
sexual harassment of a high school student during a "ride-along,"
regardless of the existence of comparator evidence. Hess v.
Garcia, 72 F.4th 753, 760-61 (7th Cir. 2023). The court concluded
that the student needed to show only that the officer
"discriminated against her based on her membership in a definable
class." Id. at 761 (cleaned up). And the student's evidence of
the officer's overtly sexual comments and conduct, which "clearly
suggest[ed] harassment by [a] public official[] that ha[d] no
conceivable legitimate purpose," was sufficient to state an equal
protection claim. Id. (quoting Geinosky v. City of Chicago, 675
F.3d 743, 748 (7th Cir. 2012)).
- 78 - Similarly, the Ninth Circuit, without reference to
comparator evidence, has broadly concluded that "[s]exual
harassment violates the Equal Protection Clause because, by
definition, it is 'motivated by gender.'" Sampson v. Cnty. of
L.A. ex rel. L.A. Cnty. Dep't of Child. & Fam. Servs., 974 F.3d
1012, 1023 (9th Cir. 2020) (citation omitted). Sampson concerned
allegations of sexual harassment against a state social worker
assigned to evaluate the plaintiff as a potential legal guardian
for her niece. See id. at 1023-24. In its analysis, the Ninth
Circuit focused on the nature of the discriminatory act. It wrote:
"Simply put, if she were a man, Sampson would not have experienced
this harassment . . . and that discrepancy fundamentally offends
the equality and fairness principles embodied in the Equal
Protection Clause." Id. at 1024.
Third, I see no basis in equal protection jurisprudence
for applying a "severe, pervasive, and objectively offensive"
standard to allegations of sexual harassment by a government
official. I appreciate and agree that it is often helpful to look
to Title IX (and Title VII) case law in evaluating claims under
the Equal Protection Clause, but the statutory and constitutional
claims are different in important respects that impact the legal
analysis.
To point out just a few distinctions, the relevant text
of Title IX differs substantially from the text of the Equal
- 79 - Protection Clause. Compare Title IX, 29 U.S.C. § 1681(a) ("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 . . . .") with U.S. Const.
amend. XIV, § 1 ("No state shall . . . deny to any person within
its jurisdiction the equal protection of the laws."). Further,
Congress enacted Title IX in 1972, when modern equal protection
jurisprudence did not yet exist, to address discrimination in
educational programs in particular. See Craig v. Boren, 429 U.S.
190, 197 (1976) (establishing, for the first time, that sex-based
classifications are subject to intermediate scrutiny).
Analyzing some of these differences, the Supreme Court
has noted that, as compared to the Equal Protection Clause, "Title
IX's protections are narrower in some respects and broader in
others." Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 256
(2009). Title IX covers both private and public educational
institutions that receive federal funds whereas the Equal
Protection Clause applies only to government actors. See id. at
257. At the same time, a plaintiff can bring a damages claims
under Title IX only against institutions or programs, not
individuals. See id. By contrast, a plaintiff who brings an equal
protection claim can directly sue the public official who engaged
in the discriminatory conduct. See id.
- 80 - Further, "the standards for establishing liability
[under Title IX and the Equal Protection Clause] may not be wholly
congruent." Id. Given that the implied private right of action
under Title IX does not permit suits against individuals for
damages, see id. at 256-57, a plaintiff bringing a Title IX sexual
harassment claim must show that the institution or program itself,
as opposed to someone affiliated with it, engaged in
discrimination. Thus, an educational institution is liable under
Title IX for sexual harassment if the plaintiff can establish that
an official with the authority to take corrective action was
"deliberate[ly] indifferen[t]" to such harassment. Id. at 257;
cf. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 292-93
(1998) ("[A]n individual may have [a claim] against . . . the
teacher in his individual capacity . . . under 42 U.S.C. § 1983"
even if the school district is not subject to Title IX liability
for that teacher's conduct.).
The Supreme Court discussed many of the unique aspects
of proving sexual harassment claims under Title IX in Davis ex
rel. LaShonda D. v. Monroe County Board of Education, a case that
concerned allegations of student-on-student harassment. 526 U.S.
629, 639 (1999). As the Court explained, sexual harassment
qualifies as discrimination under Title IX. See id. at 649-50.
But "a recipient of federal funds may be liable in damages under
Title IX only for its own misconduct." Id. at 640 (emphasis
- 81 - added). Further, because Title IX was "enacted pursuant to
Congress'[s] authority under the Spending Clause, . . . private
damages actions are available only where recipients of federal
funding had adequate notice that they could be liable for the
conduct at issue." Id. And, the text of Title IX "cabins the
range of misconduct that the statute proscribes. The statute's
plain language confines the scope of prohibited conduct based on
the recipient's degree of control over the harasser and the
environment in which the harassment occurs." Id. at 644-45
(focusing on term "subjected" to discrimination and phrase "under
any education program or activity" in Title IX's text). Because
the discrimination must "occur 'under any education program or
activity,'" the "behavior [should] be serious enough to have the
systemic effect of denying the victim equal access to [that]
educational program or activity." Id. at 652. Putting all these
key aspects of establishing liability under Title IX together "in
the context of student-on-student harassment," id., the Court held
that:
[F]unding recipients are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.
Id. at 650.
- 82 - As this examination of Davis makes clear, the "severe,
pervasive, and objectively offensive" standard set out in that
case was premised on the requirements of establishing liability
for student-on-student sexual harassment in the unique context of
Title IX.22 Davis itself recognizes that less severe conduct may
be actionable where the alleged harasser is a teacher or principal
(i.e., a government official), like Cavanaugh, who is in a position
of authority over the plaintiff. See 526 U.S. at 653 ("The
relationship between the harasser and the victim necessarily
affects the extent to which the misconduct can be said to breach
Title IX's guarantee of equal access to educational benefits and
to have a systemic effect on a program or activity."); see also
Doe v. Pawtucket Sch. Dep't, 969 F.3d 1, 11 (1st Cir. 2020)
("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
22 Similarly, to be actionable under Title VII, sexual harassment must be severe enough to demonstrably affect the plaintiff's employment. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) ("[T]o ensure that Title VII does not become a 'general civility code' . . . . [w]e have made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment. . . ."). That is because a discrimination claim under Section 703 of Title VII must be related "to [the plaintiff's] compensation, terms, conditions, or privileges of employment." 42 U.S.C. § 2000e-2(a)(1). The Supreme Court adopted the "severe or pervasive" standard under Title VII to evaluate whether alleged sexual harassment has such an impact. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986).
- 83 - perpetrated by a person in authority.").23 As the Supreme Court
stated in another Title IX case, "[n]o one questions that a student
suffers extraordinary harm when subjected to sexual harassment and
abuse by a teacher." Gebser, 524 U.S. at 292.
Even putting aside the specific facts in Davis, there is
no obvious reason to import all the requirements for Title IX
liability, which are tied to the statute's text and its enactment
under Congress's spending power, into the test for establishing
sex discrimination under the Equal Protection Clause. Title IX's
unique features, including the unavailability of damages against
individuals and the requirement that an educational institution or
program have sufficient notice of its potential liability for
Spending Clause purposes, do not exist for claims against a
government official under the Equal Protection Clause.
Just as importantly, Equal Protection Clause
jurisprudence does not demand that a plaintiff establish that
23 In fact, some of our sister circuits have expressly interpreted Davis to apply the "severe, pervasive, and objectively offensive" standard only in Title IX cases of student-on-student harassment, but not teacher-on-student harassment. See, e.g., Wamer v. Univ. of Toledo, 27 F.4th 461, 469-70 (6th Cir. 2022); Sauls v. Pierce Cnty. Sch. Dist., 399 F.3d 1279, 1284 (11th Cir. 2005). As the Sixth Circuit explained, applying a lower standard to teacher-on-student harassment comports with the text and purpose of Title IX: "When a teacher sexually harasses a student, it can more easily be presumed that the harassment would 'undermine and detract from the student's educational experience' because teachers are at the core of a student's access to and experience of education." Wamer, 27 F.4th at 471 (cleaned up).
- 84 - discrimination was "severe, pervasive, and objectively offensive"
to be actionable. The Equal Protection Clause requires only proof
of actual harm and intentional discrimination for a claim to
proceed. See, e.g., Arlington Heights, 429 U.S. at 264-65; Heckler
v. Mathews, 465 U.S. 728, 738-39 (1984).
Intentional discrimination -- which includes sex
discrimination by a government official -- violates the Equal
Protection Clause if it "does not 'serve important governmental
objectives.'" Lipsett v. Univ. of P.R., 864 F.2d 881, 896 (1st
Cir. 1988) (quoting Davis v. Passman, 442 U.S. 228, 234-35 (1979));
see Catherine A. MacKinnon, Sexual Harassment of Working Women 102
(1979) (explaining that unlike Title VII claim, equal protection
claim requires interrogating the "state's purpose in using, and
its use of, sex as a criterion"). As the Seventh Circuit has
persuasively explained, sexual harassment never serves an
important governmental objective. See Hess, 72 F.4th at 761. It
follows that the relevant question for equal protection analysis
is whether the government official's conduct rises to the level of
sexual harassment -- not whether that harassment is "severe,
pervasive, and objectively offensive."24
24 These inquiries are related but distinct, as decisions applying the analogous Title VII standard demonstrate. See, e.g., Lipsett, 864 F.2d at 897-98 ("[N]ot all conduct that may be characterized as 'harassment' . . . [is] 'sufficiently severe or pervasive to create an abusive working environment.'"(cleaned up)); Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263,
- 85 - Thus, although there is no question that a jury could
find that Wadsworth was subjected to harassment that was severe,
pervasive, and objectively offensive, the Equal Protection Clause
does not require her to prove that level of harm.
271 (6th Cir. 2009) (explaining conduct was harassment "based on sex" where it was "explicitly sexual and patently degrading of women," and "[t]he natural effect of exposure to such offensive conduct is embarrassment, humiliation and degradation"); Howley v. Town of Stratford, 217 F.3d 141, 154-56 (2d Cir. 2000) (analyzing separately whether employer's use of degrading and sexualized language affected workplace from whether same conduct constituted sexual harassment).
- 86 -
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Cite This Page — Counsel Stack
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