Tveter et al v. Derry Cooperative School District SAU #10 et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Elizabeth Tveter et al.
v. Case No. 16-cv-329-PB
Derry Cooperative School District
SAU # 10, et al.
REPORT AND RECOMMENDATION
Pro se plaintiffs Elizabeth Tveter and Holly Tveter1 have
filed a complaint against multiple defendants,2 alleging various
violations of federal law (Doc. No. 1). This matter is before
the undersigned magistrate judge for preliminary review to
determine whether the complaint asserts any claim upon which
relief might be granted. See 28 U.S.C. § 1915(e)(2)(B); LR
4.3(d)(2).
Standard of Review
In determining whether a pro se pleading states a claim,
the court construes the pleading liberally. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007). Disregarding any legal
conclusions, the court considers whether the factual content in
1 As mother and next friend of Elizabeth Tveter.
2 Derry Cooperative School District, Pinkerton Academy High
School, Laura H. Nelson, Gerald Griffin Morse, Christopher
Harper, Glenn Ahrens, Heather Haas Derochers, Timothy Powers,
Jennifer Resmini, and David Siff.
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the pleading and inferences reasonably drawn therefrom, taken as
true, state a facially plausible claim to relief. Hernandez-
Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Background
Elizabeth Tveter is a disabled adult who, at the time her
complaint was filed, was enrolled at Pinkerton Academy High
School (“Pinkerton”). Holly Tveter is Elizabeth’s mother and is
also disabled. As plaintiffs share a last name, the court will
refer to them by their first names in this Report and
Recommendation, for clarity. Pinkerton is an independent high
school which contracts with the Derry Cooperative School
District SAU #10 (“School District”) to provide public high
school education for the School District’s students. The School
District and Pinkerton will be collectively referred to in this
Report and Recommendation as the “institutional defendants.”
Laura H. Nelson is employed by the School District as
superintendent of schools (“Superintendent Nelson”). Gerald
Griffin Morse is the Headmaster at Pinkerton (“Headmaster
Morse”). Heather Haas Derochers is the 504 Coordinator at
Pinkerton (“Coordinator Derochers”). Until July 1, 2016,
Christopher Harper was Dean of Academics at Pinkerton (“Dean
Harper”), Glenn Ahrens was Dean of Students at Pinkerton (“Dean
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Ahrens”), Timothy Powers was Athletic Director at Pinkerton
(“Athletic Director Powers”), and Jennifer Resmini was the
varsity field hockey coach at Pinkerton (“Coach Resmini”).
David Siff is an attorney who served as the hearing officer at a
due process hearing discussed in greater detail below (“Attorney
Siff”). These defendants will be referred to collectively as the
“individual defendants” in this Report and Recommendation. The
individual defendants are sued in both their official and
personal capacities.
I. Elizabeth’s Experience at Pinkerton
Plaintiffs allege that on January 5, 2014, Elizabeth
suffered a severe traumatic brain injury during athletic
training. The injury left Elizabeth cognitively impaired, and
she was diagnosed as legally disabled. Elizabeth took an
extended medical leave of absence from Pinkerton, finally
returning full time in August of 2015 under a 504 plan.
Prior to her injury, Elizabeth was a starter on the
Pinkerton varsity field hockey team. Elizabeth was medically
cleared to return to the field hockey team in September of 2015.
Elizabeth was required to wear protective head gear, but was
otherwise cleared to fully participate. Plaintiffs contend that
Elizabeth’s playing time was nevertheless restricted and that
when Holly complained, it was further restricted.
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Plaintiffs allege that once Elizabeth returned to the field
hockey team, other girls on the team started to bully her.
Elizabeth was not bullied prior to becoming disabled, and non-
disabled students were not bullied. Both Elizabeth and Holly
filed numerous complaints regarding this bullying, but none of
the defendants intervened, allowing the bullying to continue and
escalate.
On October 29, 2015, Elizabeth was reinjured during field
hockey practice when another member of the team struck a ball
toward Elizabeth, who was standing on the sidelines putting on
her protective headgear, and that ball struck Elizabeth in the
head. Plaintiffs claim that Elizabeth suffered a severe
concussion, which necessitated Elizabeth taking a second medical
leave of absence from Pinkerton from October 30, 2015, until
February of 2016.
During this second leave of absence, Elizabeth and Holly
made multiple requests for tutoring, direct instruction, class
work, handouts, teacher’s notes, and homework assignments. The
defendants denied those requests without providing written
notice or holding a 504 team meeting. Elizabeth was thus unable
to teach herself or receive instruction from a private tutor.
Plaintiffs informed the defendants on multiple occasions that
the defendants were violating Elizabeth’s 504 plan, but the
defendants refused to include Elizabeth or Holly in the
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decision-making process.
On January 4, 2016, Elizabeth was cleared to return to
Pinkerton for forty-five minutes per day to attend a physical
education class for disabled students. On January 7, 2016, a
student aide for the class, who had previously bullied
Elizabeth, struck Elizabeth in the head, reinjuring Elizabeth’s
brain. Plaintiffs allege that this event and the October 29,
2015 event resulted in Elizabeth possibly sustaining permanent
brain injuries.
In the spring of 2016, Elizabeth was a member of the
Pinkerton varsity tennis team. Plaintiffs claim that Elizabeth
was required to wear a red shirt while the other members of the
team all wore white shirts, which resulted in Elizabeth being
excluded from team photographs.
II. Sexual Harassment3
Plaintiffs allege that Elizabeth was subject to sexual
harassment by Athletic Director Powers. Plaintiffs claim that
Athletic Director Powers would attend Elizabeth’s field hockey
3 Though several of the allegations related to purported
sexual harassment appear to correspond with events discussed
above, the few dates provided for the sexual harassment
allegations are difficult to reconcile with the dates provided
for the previously-discussed events. Moreover, plaintiffs have
failed to provide any concrete timeframe for several of their
allegations concerning purported sexual harassment. Thus, both
the relative timeframe of these events and their specific
chronology are unclear.
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games and tennis matches and stare at Elizabeth. They further
allege that during tennis practices and matches, Athletic
Director Powers would follow Elizabeth from court to court.
Holly filed sexual harassment complaints concerning this
behavior with Pinkerton, the School District, Athletic Director
Powers, Dean Ahrens, Headmaster Morse, Superintendent Nelson,
and the United States Department of Education Office of Civil
Rights. According to the complaint, investigations were started
in April and May of 2015, a meeting was held in May of 2015, and
a safety plan was created for Elizabeth requiring Athletic
Director Powers to stay away from her. Plaintiffs claim that
Athletic Director Powers nonetheless continued to attend
Elizabeth’s games and matches and interacted with her at social
events. Plaintiffs further claim that they have never received
final decisions from the April and May of 2015 investigations,
despite multiple requests.
Plaintiffs contend that Athletic Director Powers was
observed lingering in the lobby and peering through the window
of a classroom in which Elizabeth was attending summer class.
Holly requested that Pinkerton, the School District, Headmaster
Morse, and Superintendent Nelson require that Athletic Director
Powers use an alternative door and not walk by that window while
Elizabeth was in class. The request was refused. A meeting was
held on July 16, 2016 concerning new concerns about Athletic
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Director Powers’s conduct toward Elizabeth. An investigation
into the new conduct was ongoing at the time this cause of
action was filed.
III. Due Process Hearing
A due process hearing regarding Elizabeth’s education was
held before Attorney Siff. Holly served as Elizabeth’s
representative at the hearing. Plaintiffs allege that Attorney
Siff was deliberately chosen by the School District and
Superintendent Nelson to gain advantage in the proceedings
because Attorney Siff was a “harsh” former marine and Holly had
a history of being the victim of domestic violence.
Plaintiffs allege that Attorney Siff was biased against
them. In support of that contention, plaintiffs assert that
Attorney Siff: limited plaintiffs’ ability to present evidence
and cross-examine witnesses, while not placing similar
restrictions upon the other side; allowed irrelevant records
into evidence, but did not allow plaintiffs to submit rebuttal
evidence; denied plaintiffs financial assistance in preparing
for the hearing; refused to provide plaintiffs with a copy of
the hearing recording; and, despite knowing that Holly herself
was disabled, interrupted Holly, limited Holly’s questioning,
argued with Holly openly at the hearing, and threatened Holly.
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Discussion
The complaint is not presented in chronological order and
does not include a clear delineation of individual counts.
After thorough and generous review of the complaint, the court
construes the complaint as asserting claims alleging violations
of: (1) the Individuals with Disabilities Education Act, 20
U.S.C. §§ 1400-1491 (“IDEA”); (2) Titles II and V of the
Americans with Disabilities Act, 42 U.S.C §§ 12101, et seq.
(“ADA”); (3) Section 504 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. § 794 (“Section 504” or “Rehabilitation
Act”); (4) Title IX of the Education Amendments of 1972, 20
U.S.C. §§ 1681–1688 (“Title IX”); and (5) the Fourteenth
Amendment’s Equal Protection Clause and Due Process Clause,
brought pursuant to 42 U.S.C. § 1983 (“Section 1983”).
Plaintiffs allege disability discrimination, sexual harassment,
and retaliation.
I. Pro Se Plaintiffs
Both Elizabeth and Holly are identified as plaintiffs in
this case. To the extent Holly is seeking to bring claims on
her own behalf, the court will address such claims in the
discussion below. To the extent, however, Holly is seeking to
stand in as a representative for Elizabeth in this action, she
may not do so. Elizabeth personally signed the complaint and,
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based on the representations in the complaint, had reached the
age of majority at the time this action was filed. Though the
complaint alleges that Elizabeth is disabled, there is no
indication that Elizabeth has been deemed incompetent or is
otherwise unable to represent herself. See Fed. R. Civ. P.
17(c). Even if Elizabeth were incompetent and Holly had been
appointed her legal guardian, Holly, as a layperson, could not
represent Elizabeth’s interests in this court pro se. See LR
83.6(b); see also Katz v. McVeigh, 931 F. Supp. 2d 311, 332
(D.N.H. 2013), aff'd, Nos. 13-1453, 13-1529 (1st Cir. Sept. 23,
2014). Thus, Elizabeth must either represent herself in this
action or appear through counsel. Katz, 931 F. Supp. 2d at 332.
II. IDEA
The court turns to plaintiffs’ claims under the IDEA.
Plaintiffs allege that Elizabeth was denied a free and
appropriate public education (“FAPE”), in violation of the IDEA.
The IDEA “is a comprehensive education statute which seeks to
ensure that children with disabilities receive a [FAPE] designed
to meet their unique needs.” Rose v. Yeaw, 214 F.3d 206, 209
(1st Cir. 2000) (internal ellipsis and quotation marks omitted)
(quoting 20 U.S.C. § 1400(d)(1)(A)). State or local agencies
receiving federal funds under subchapter II of the IDEA are
required “to establish and maintain procedures to ensure that
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children with disabilities and their parents are guaranteed
procedural safeguards with respect to the provision of [a FAPE]
by such agencies.” Id. (ellipsis omitted) (quoting § 1415(a)).
“In New Hampshire, if the parent or guardian of a disabled
child believes that the child has been denied a FAPE, he or she
may request a due process hearing before the New Hampshire
Department of Education.” Pass v. Rollinsford Sch. Dist., 928
F. Supp. 2d 349, 353 (D.N.H. 2013) (citing § 1415(f)(1)(A)).
The limitations period to request such a hearing is two years
from the date on which the alleged violation was or reasonably
should have been discovered. N.H. Rev. Stat. Ann § 186-C:16-b,
I. “Following [the] hearing, the hearing officer must issue a
final decision, accompanied by findings of fact.” Pass, 928 F.
Supp. 2d at 353 (citing §§ 1415(h), (i)(1)(A)).
“Any party aggrieved” by the hearing officer’s decision may
bring a civil action in state or federal court. 20 U.S.C. §
1415(i)(2)(A); see also Pass, 929 F. Supp. 2d at 353. Under New
Hampshire law, such an action must be filed “within 120 days
from receipt of the final decision.” N.H. Rev. Stat. Ann § 186-
C:16-b, IV.
Plaintiffs’ IDEA claims may proceed in part. As students
and parents can equally constitute “parties aggrieved” under the
IDEA, see Maroni v. Pemi-Baker Reg'l Sch. Dist., 346 F.3d 247,
250 (1st Cir. 2003), both Elizabeth and Holly may bring claims
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under the IDEA, each on their own behalf. The complaint itself
plausibly alleges that the defendants denied Elizabeth a FAPE,
at least during her second leave of absence.4 The court
accordingly directs service of plaintiffs’ claims on the
institutional defendants and on the individual defendants in
their official capacities.5
The IDEA does not, however, allow for recovery against
individual defendants to the extent they are sued in their
individual/personal capacities. See Diaz-Fonseca v. Puerto
Rico, 451 F.3d 13, 28–29 (1st Cir. 2006); see also Nieves–
Márquez v. Puerto Rico, 353 F.3d 108, 124 (1st Cir. 2003)
(holding that monetary damages, including punitive damages, are
not available under the IDEA). The district judge should
therefore dismiss plaintiffs’ IDEA claims to the extent they are
asserted against the individual defendants in their personal
capacities.
III. ADA and Rehabilitation Act
The court next considers plaintiffs’ claims under the ADA
4 The court makes this determination without comment on
whether plaintiffs have fully exhausted their administrative
remedies and, if so, timely filed this action.
5 The court directs service of these claims and any others
that may proceed, as discussed herein, in an Order issued
simultaneously with this Report and Recommendation.
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and Rehabilitation Act.6 Construed liberally, the complaint
appears to allege claims of disability discrimination and
retaliation under these provisions. Under the ADA, disability
discrimination claims implicate Title II, see Parker v.
Universidad de P.R., 225 F.3d 1, 4 (1st Cir. 2000), whereas
retaliation claims fall under Title V, see Oliveras-Sifre v.
P.R. Dep't of Health, 214 F.3d 23, 26 (1st Cir. 2000). Section
504 proscribes both disability discrimination, see Lesley v. Hee
Man Chie, 250 F.3d 47, 52-53 (1st Cir. 2001), and, through its
implementing regulations, retaliation, see D.B. ex rel.
Elizabeth B. v. Esposito, 675 F.3d 26, 40 (1st Cir. 2012)
(citing 28 C.F.R. § 42.503(b)(1)(vii)).
Before turning to the substance of these claims, the court
must first address whether Titles II and V of the ADA and
Section 504 provide for individual liability. Though there is
no binding authority on this issue, the First Circuit has
arguably implied that no such liability exists. See Roman-
Oliveras v. P.R. Elec. Power Auth., 655 F.3d 43, 52 (1st Cir.
6 The court addresses these claims, and the ones that
follow, without comment on the extent to which they are impacted
by plaintiffs’ IDEA claims, including, for example, whether they
are subject to IDEA exhaustion. See, e.g., Fry v. Napoleon
Cmty. Sch., 137 S. Ct. 743, 754–55 (2017); M.M.R.-Z. ex rel.
Ramirez-Senda v. Puerto Rico, 528 F.3d 9, 14–15 (1st Cir. 2008);
Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 60 (1st Cir.
2002); Weber v. Cranston Sch. Comm., 212 F.3d 41, 49–50 (1st
Cir. 2000).
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2011) (holding that no individual liability exists under Title I
of the ADA); Kiman v. N.H. Dep’t of Corr., 451 F.3d 274, 290
(1st Cir. 2006) (noting that several courts have determined that
Title II does not provide for individual liability, but not
reaching this issue). And those district courts in this circuit
that have directly addressed this issue have followed the
majority of other circuits in concluding that individual
liability is not available under the ADA or Section 504. See,
e.g., DeCotiis v. Whittemore, 842 F. Supp. 2d 354, 363 n. 5 (D.
Me. 2012); Toledo-Colon v. Puerto Rico, 812 F. Supp. 2d 110, 117
(D.P.R. 2011); Abbott v. Town of Salem, No. 05-cv-127-SM, 2006
WL 276704, at *4 (D.N.H. Feb. 2, 2006). Following the reasoning
of those courts, the court recommends that the district judge
dismiss the ADA and Section 504 claims to the extent they are
brought against the individual defendants in their personal
capacities.
A. Disability Discrimination
Title II of the ADA “prohibits discrimination against
persons with disabilities by ‘public entities.’” Parker, 225
F.3d at 4 (citations omitted). This provision is modeled on
Section 504, and “essentially extends the reach of § 504 to
state and local governmental entities that do not receive
federal financial assistance.” Id. at 4, n. 2; see also 29
U.S.C. § 794(a) and 42 U.S.C. § 12132 (using comparable language
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to proscribe disability discrimination). Accordingly, when
applying Title II and Section 504, courts will consider prior
legal decisions concerning either of those two provisions
interchangeably. See Parker, 225 F.3d at 4 (citations omitted).
A party seeking relief under Title II must establish:
(1) that [s]he is a qualified individual with a
disability; (2) that [s]he was either excluded from
participation in or denied the benefits of some public
entity’s services, programs, or activities or was
otherwise discriminated against; and (3) that such
exclusion, denial of benefits, or discrimination was
by reason of [her] disability.
Buchanan v. Maine, 469 F.3d 158, 170–71 (1st Cir. 2006).
Similarly, to prevail on a discrimination claim under Section
504, a party must prove:
(1) that she is disabled; (2) that she sought services
from a federally funded entity; (3) that she was
otherwise qualified to receive those services; and (4)
that she was denied those services solely by reason of
her . . . disability.
Lesley, 250 F.3d at 52-53 (internal quotation marks omitted).
The complaint alleges that, due to her disability,
Elizabeth was excluded from participation in, and denied the
benefits of, the services, programs, and/or activities offered
by the School District and/or Pinkerton that Elizabeth both
requested and was otherwise qualified to receive. These
allegations include her treatment as a member of the varsity
field hockey and tennis teams when she returned from her leaves
of absence, her treatment by various defendants during her
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second leave of absence, and the defendants’ responses when
informed that Elizabeth was being bullied by other students due
to her disability. Elizabeth’s disability discrimination claims
may accordingly proceed under both the ADA and Section 504.
Whether Holly may also bring disability discrimination
claims under Title II and Section 504 requires an additional
layer of analysis. As Holly is also disabled, the court must
address whether the complaint sufficiently alleges claims under
these provisions based on Holly’s own disability. Additionally,
the court must address whether Holly may premise these claims on
Elizabeth’s disability based on a concept known as
“associational standing.”
Though the First Circuit has not broadly discussed
associational standing,7 the Eleventh Circuit has held that “[i]t
is widely accepted” that third parties may bring claims under
Section 504 and the ADA “when they are injured because of their
association with a disabled person.” McCullum v. Orlando Reg'l
Healthcare Sys., Inc., 768 F.3d 1135, 1143 (11th Cir. 2014)
(collecting cases). This decision has been cited approvingly by
district courts in this circuit, including in this district.
See Collins v. Dartmouth-Hitchcock Med. Ctr., No. 13-cv-352-JD,
7 The First Circuit has addressed associational standing in
the context of retaliation claims under the Rehabilitation Act.
See Weber, 212 F.3d at 48. It has not, however, addressed such
standing in the context of disability discrimination.
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2015 WL 268842, at *8 (D.N.H. Jan. 21, 2015); see also Ortiz v.
Caparra Ctr. Assocs., LLC, No. CV 14-1914 (BJM), 2016 WL
1092482, at *4 (D.P.R. Mar. 21, 2016). In the absence of
controlling appellate authority to the contrary, the court finds
these decisions to be persuasive.
When construed liberally, the complaint alleges that Holly
faced discrimination during the due process hearing due to her
own disability. Holly may accordingly proceed with a disability
discrimination claim on that basis. The complaint also alleges
that Holly, along with Elizabeth, was excluded from the
decision-making process related to Elizabeth’s 504 plan during
Elizabeth’s second leave of absence. Holly may proceed with a
disability discrimination claim based on this allegation due to
her association with Elizabeth. There are no other allegations
in the complaint that support disability discrimination claims
asserted on behalf of Holly.
Elizabeth and Holly’s disability discrimination claims
under Title II and Section 504 may proceed in part, as discussed
herein. The court directs service of these claims on the
institutional defendants and the individual defendants in their
official capacities. The district judge should dismiss these
claims to the extent they are asserted against the individual
defendants in their personal capacities.
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B. Retaliation
“Both the Rehabilitation Act . . . and the ADA prohibit
retaliation against any person, whether disabled or not, for
opposing disability-based discrimination made unlawful by those
statutes.” D.B. ex rel. Elizabeth B., 675 F.3d at 40 (internal
citations omitted). “A plaintiff need not succeed on a
disability discrimination claim in order to assert a claim for
retaliation.” Id. at 40–41 (citation omitted).
Retaliation claims under the Rehabilitation Act and the ADA
are analyzed under the same standard. Id. at 41. The burden-
shifting framework articulated in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 801–03 (1973) applies. Id. To state a
prima facie claim of retaliation, a plaintiff must allege that
(1) she engaged in protected conduct, (2) she was subjected to
an adverse action by the defendant, and (3) there was a causal
connection between the protected conduct and the adverse action.
Id. “An adverse action is one that might well dissuade a
reasonable person from making or supporting a charge of
discrimination.” Id. (citations omitted).
Elizabeth’s retaliation claims under the ADA and the
Rehabilitation Act may proceed. When construing the complaint
liberally, Elizabeth appears to allege four distinct retaliatory
acts by the defendants: first, that the defendants deliberately
reduced Elizabeth’s field hockey playing after she and Holly
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complained that her playing time was being unnecessarily limited
when she returned from her first leave of absence; second, that
the defendants refused to include Elizabeth and Holly in the
decision-making process after they complained that the
defendants were violating Elizabeth’s 504 plan; third, that the
defendants refused to intervene when Elizabeth and Holly
complained that Elizabeth was being bullied due to her
disabilities; and fourth, that the defendants failed to take
appropriate steps in response to Elizabeth and Holly’s
complaints that she was being sexually harassed by Athletic
Director Powers. These allegations are sufficient to warrant
serving Elizabeth’s ADA and Rehabilitation Act retaliation
claims on the institutional defendants and the individual
defendants in their official capacities.
Holly’s retaliation claims may also proceed, though on a
more limited basis. When construed liberally, the complaint
alleges that Holly was retaliated against when she complained of
disability discrimination during the due process hearing. The
complaint further alleges that Holly was retaliated against when
she complained that the defendants were violating Elizabeth’s
504 plan during Elizabeth’s second leave of absence. See Weber,
212 F.3d at 48–49 (holding that the parent of a disabled child
has standing to pursue a retaliation claim under the
Rehabilitation Act when the parent is retaliated against due to
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complaints relating to her child’s education). Holly may
proceed with retaliation claims on these bases.
The court accordingly directs service of plaintiffs’
retaliation claims under Title V of the ADA and Section 504 of
the Rehabilitation Act on the institutional defendants and the
individual defendants in their official capacities, as discussed
above. The district judge should dismiss these claims to the
extent they are asserted against the individual defendants in
their personal capacities.
IV. Title IX
Next, the court considers plaintiffs’ claims under Title
IX. As relevant here, Title IX provides that “[n]o person . . .
shall, on the basis of sex, be excluded from participation in,
be denied the benefits, or be subjected to discrimination under
any education program or activity receiving Federal financial
assistance.” 20 U.S.C. § 1681(a). Title IX contains an implied
private right of action, under which both damages and injunctive
relief are available. See Fitzgerald v. Barnstable Sch. Comm.,
555 U.S. 246, 255 (2009). The complaint appears to allege Title
IX claims for sexual harassment and retaliation. Before turning
to these claims, the court must briefly address a few general
issues.
First, it is well-established that Title IX only authorizes
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private actions against the recipient of federal funding itself,
and not individuals in their official or personal capacities.
See Lipsett v. Univ. of P.R., 864 F.2d 881, 900 (1st Cir. 1988);
see also Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 640
(1999). Thus, the district judge should dismiss the Title IX
claims to the extent they are alleged against the individual
defendants in their official and personal capacities.
Additionally, “only participants of federally funded
programs — and not the participants’ parents — have standing to
bring claims under Title IX.” Doe v. Oyster River Co-op. Sch.
Dist., 992 F. Supp. 467, 481 (D.N.H. 1997); see also Phillips v.
Anderson Cty. Bd. of Educ., 259 F. App'x 842, 843 n. 1 (6th Cir.
2008) (per curiam). Thus, Holly does not have standing to bring
Title IX claims here, and the district judge should dismiss
these claims to the extent they are asserted on Holly’s behalf.
A. Sexual Harassment
Sexual harassment is a form of discrimination for Title IX
purposes, and Title IX proscribes harassment with sufficient
clarity to serve as the basis of a damages action. See Brodeur
v. Claremont Sch. Dist., 626 F. Supp. 2d 195, 206 (D.N.H. 2009)
(citing Davis, 526 U.S. at 649–50). Funding recipients may only
be held liable for damages, however, “where they are
deliberately indifferent to sexual harassment, of which they
have actual knowledge, that is so severe, pervasive, and
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objectively offensive that it can be said to deprive the victims
of access to the educational opportunities or benefits provided
by the school.” Id. (internal quotation marks omitted) (quoting
Davis, 526 U.S. at 650).
Here, the complaint alleges that Holly complained to the
School District and Pinkerton on multiple occasions regarding
Athletic Director Powers’s behavior toward Elizabeth. The
complaint can further be construed to allege that Athletic
Director Powers’s actions interfered with Elizabeth’s education.
Finally, the complaint alleges that the School District and
Pinkerton allowed Athletic Director Powers’s behavior to
continue, and that additional investigations into his behavior
were ongoing at the time the complaint was filed. At this
preliminary stage, these allegations are sufficient for
Elizabeth’s sexual harassment claim to proceed against the
School District and Pinkerton under Title IX. The court
accordingly directs service of this claim on the institutional
defendants.8
B. Retaliation
“Retaliation against a person because that person has
complained of sex discrimination is another form of intentional
8 The court reaches this determination without comment on
whether Elizabeth has adequately exhausted her remedies under
Title IX.
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sex discrimination encompassed by Title IX’s private cause of
action.” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173
(2005). To state a prima facie case for Title IX retaliation, a
plaintiff must allege facts sufficient to show that (1) “she
engaged in activity protected by Title IX,” (2) “that the
alleged retaliator knew of the protected activity,” (3) “that
the alleged retaliator subsequently undertook some action
disadvantageous to the actor,” and (4) “that a retaliatory
motive played a substantial part in prompting the adverse
action.” Frazier, 276 F.3d at 67 (citation omitted).
The complaint alleges that Elizabeth, through Holly, made
multiple complaints to the institutional defendants regarding
Athletic Director Powers’s behavior, but that the institutional
defendants ultimately allowed this behavior to continue.
Elizabeth’s Title IX retaliation claim may proceed on this
basis. The court therefore directs service of this claim on the
institutional defendants.
V. Section 1983
Finally, the court turns to plaintiffs’ claims under
Section 1983. To state a claim for relief in a Section 1983
action, a party must “establish that [she was] deprived of a
right secured by the Constitution or laws of the United States,
and that the alleged deprivation was committed ‘under color of
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state law.’” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,
49–50 (1999). When construed liberally, the complaint appears
to seek to bring claims under Section 1983 for violations of
equal protection and due process. The court will briefly
address each in turn.
A. Equal Protection
“‘The Equal Protection Clause contemplates that similarly
situated persons are to receive substantially similar treatment
from their government.’” Davis v. Coakley, 802 F.3d 128, 132
(1st Cir. 2015) (citation omitted). “To establish an equal
protection claim, a plaintiff needs to allege facts showing that
‘(1) the [plaintiff], 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 [the plaintiff].’” Id. at 132-33 (citation omitted).
“Proof of . . . discriminatory intent or purpose is required to
show a violation of the Equal Protection Clause.” Vill. of
Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265
(1977). Because the physically disabled are not a suspect class
for equal protection purposes, plaintiff must also show that
there was no rational basis for the defendants’ conduct. Bd. of
Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001);
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Toledo v. Sanchez, 454 F.3d 24, 33–34 (1st Cir. 2006);
Montemerlo v. Goffstown Sch. Dist. SAU #19, No. 12-CV-13-PB,
2013 WL 1352066, at *2 (D.N.H. Apr. 2, 2013).
The equal protection claims largely appear to mirror many
of the claims discussed above, in that the complaint alleges
that the defendants subjected Elizabeth to disability
discrimination, sexual harassment, and retaliation. The
complaint further alleges that other students (particularly,
non-disabled students) were not subjected to similar treatment.
The court concludes that the facts asserted in the complaint are
minimally sufficient to allow the equal protection claims
brought by Elizabeth to proceed against all defendants, and
directs service accordingly.
There is not, however, anything in the complaint to support
a claim that Holly’s equal protection rights were violated by
any of the defendants. Indeed, there is no indication that
Holly was ever treated differently than any similarly-situated
individuals, or that this treatment was based on an
impermissible consideration. See Davis, 802 F.3d at 132. The
district judge should therefore dismiss the equal protection
claim to the extent it is brought by Holly.
B. Due Process
The complaint appears to allege two independent due process
violations. First, plaintiffs contend that their procedural due
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rights under the IDEA and/or Section 504 were violated when the
defendants denied Elizabeth services and benefits during her
second leave of absence without providing plaintiffs with
written notice or holding a 504 team meeting. Second,
plaintiffs assert that their procedural due process rights under
the IDEA and/or Section 504 were violated due to Attorney Siff’s
actions during the due process hearing. As both plaintiffs have
certain procedural rights at least under the IDEA, as discussed
above, see Maroni, 346 F.3d at 250, these claims may proceed.
The court directs service accordingly.
Conclusion
For the foregoing reasons, the court recommends that the
district judge dismiss the following claims:
 Both plaintiffs’ claims under the IDEA, ADA, and Section
504, as brought against the individual defendants in
their personal capacities.
 Elizabeth’s claims under Title IX, as brought against the
individual defendants in either their official or
personal capacities.
 Holly’s claims under Title IX as brought against all
defendants.
 Holly’s equal protection claim under Section 1983 as
brought against all defendants.
In an Order issued simultaneously with this Report and
Recommendation, the court directs service on the defendants of
the remaining claims asserted in the complaint.
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Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. See Fed.
R. Civ. P. 72(b)(2). The fourteen-day period may be extended
upon motion. Failure to file specific written objections to the
Report and Recommendation within the specified time waives the
right to appeal the district court’s order. See Santos-Santos
v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016); Fed. R.
Civ. P. 72(b)(2).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
April 25, 2017
cc: Elizabeth Tveter, pro se
Holly Tveter, pro se
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