# Dizio v. Manchester Essex Regional School District

> District Court, D. Massachusetts · August 12, 2019

URL: https://www.frixlaw.com/law-library/cases/10197948

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** August 12, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

__________________________________________
)
CYNTHIA DIZIO and JAMES DIZIO, ) Civil Action No.
individually and on behalf of Jane Doe, ) 18-12489-FDS
their minor child, )
)
Plaintiffs, )
)
v. )
)
MANCHESTER ESSEX REGIONAL )
SCHOOL DISTRICT, PAMELA BEAUDOIN, )
STEVE GUDITIS, ALLISON COLLINS, )
HELEN BRYAN, DEBRA WELLING, )
KEVIN O'MALEY, and DONNA SMITH, )
)
Defendants. )
__________________________________________)

AMENDED MEMORANDUM AND ORDER
ON DEFENDANTS’ MOTION TO DISMISS

SAYLOR, J.
This lawsuit arises out of a dispute between a school district and the parents of a disabled
child.1 The complaint alleges a claim arising under the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101 et seq., and the Rehabilitation Act, 29 U.S.C. § 794; a claim under
42 U.S.C. § 1983, asserting violations of the Individuals with Disabilities Education
Improvement Act of 2004 (“IDEA”), 20 U.S.C. § 1400 et seq.; and various other statutory and
common-law claims.

1 The Court’s Memorandum and Order was issued on August 8, 2019, the same day that the First Circuit
issued its decision in Parent/Professional Advocacy League, et al. v. City of Springfield, et al., 2019 WL 3729033
(1st Cir. Aug. 8, 2019). This Amended Memorandum and Order has been issued to provide updated citations in
light of that opinion.
Plaintiffs Cynthia and James Dizio are the parents of Jane Doe.2 According to the
complaint, Jane is approximately 16 years old and has a variety of disabilities, including
attention deficit/hyperactivity disorder (“ADHD”), predominantly inattentive presentation,
anxiety disorder, school refusal, depression, slow processing disorder, possible mood disorder,

and executive function deficiencies. In substance, plaintiffs allege that defendants Manchester
Essex Regional School District (“MERSD”) and the various named school officials refused to
provide Jane with a free appropriate public education (“FAPE”), as guaranteed by IDEA.
As a general matter, the IDEA requires plaintiffs to exhaust administrative remedies
before bringing suit. Plaintiffs here did not bring their claims before the Massachusetts Board of
Special Education Appeals (“BSEA”), and therefore have not satisfied that requirement. The
complaint instead asserts federal and state claims on a variety of theories that essentially seek to
avoid a failure-to-exhaust defense.
Based principally on plaintiffs’ failure to exhaust, defendants have moved to dismiss the
complaint under Fed. R. Civ. P. 12(b)(1) for lack of subject-matter jurisdiction and Fed. R. Civ.

P. 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons stated
below, the motion will be granted.
I. Background
A. Statutory Background
The IDEA conditions the provision of federal funds to public schools on compliance with
a requirement to provide all disabled children with a “free appropriate public education.” See
Parent/Prof'l Advocacy League v. City of Springfield, 2019 WL 3729033, at *2 (1st Cir. Aug. 8,
2019) (quoting 20 U.S.C. §1412(a)(1)) (citing Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy,

2 Jane Doe is a pseudonym.
548 U.S. 291, 295-96 (2006)). “As defined in the Act, a FAPE comprises ‘special education and
related services’—both ‘instruction’ tailored to meet a child's ‘unique needs’ and ‘sufficient
supportive services’ to permit the child to benefit from that instruction.” Fry v. Napoleon Cmty.
Sch., 137 S. Ct. 743, 748-49 (2017) (quoting 20 U.S.C. § 1401(9), (26), (29)); see also Endrew

F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 994 (2017).
1. Individualized Education Programs
The individualized education program (“IEP”) is the IDEA’s primary means for assuring
the provision of a FAPE to disabled children. “IEPs are ‘comprehensive plan[s]’ developed by
the child’s teachers, school officials, and parents.” Parent/Prof'l Advocacy League, 2019 WL
3729033, at *2 (quoting Endrew F., 137 S. Ct. at 994). At a minimum, “[e]ach IEP must include
an assessment of the child’s current educational performance, must articulate measurable
educational goals, and must specify the nature of the special services that the school will
provide.” Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53 (2005). “[T]he services offered in
an IEP amount to a FAPE if they are ‘reasonably calculated to enable a child to make progress

appropriate in light of the child's circumstances.’” C.D. by & through M.D. v. Natick Pub. Sch.
Dist., 924 F.3d 621, 624-25 (1st Cir. 2019) (quoting Endrew F., 137 S. Ct. at 1001); see also
Parent/Prof'l Advocacy League, 2019 WL 3729033, at *3.
2. IDEA Administrative Procedures
If a dispute arises between parents and a school district concerning the application of
IDEA to a particular child, the statute requires the state to convene an impartial hearing. 20
U.S.C. § 1415(f)(1)(A). “Hearing officers can grant substantive relief, such as reimbursement
for private school tuition or an order that a school district must offer the student an appropriate
educational program.” Parent/Prof'l Advocacy League, 2019 WL 3729033, at *3 (citing School
Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359, 370) (1985)). “But relief
may only be granted based on a determination of whether the child received a [FAPE].” Id.
(quoting 20 U.S.C. § 1415(f)(3)(E)(i)).
In Massachusetts, those impartial hearings required by the IDEA are conducted by the

Bureau of Special Education Appeals. See Mass. Gen. Laws ch. 71B, § 3; 603 C.M.R. 28.08(5);
see also Roland M. v. Concord Sch. Comm., 910 F.2d 983, 988 (1st Cir. 1990). Under
Massachusetts law, the BSEA has jurisdiction to hear disputes
between and among parents, school districts, private schools and state agencies
concerning: (i) any matter relating to the identification, evaluation, education
program or educational placement of a child with a disability or the provision of a
free and appropriate public education to the child arising under this chapter and
regulations promulgated hereunder or under the Individuals with Disabilities Act,
20 U.S.C. § 1400 et seq., and its regulations; or (ii) a student’s rights under
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and its
regulations.

Mass. Gen. Laws. ch. 71B, § 2A(a).
The BSEA’s administrative decision is reviewable in either state or federal court. See 20
U.S.C. § 1415(i)(2)(A), (i)(2)(C)(iii); see also Parent/Prof'l Advocacy League, 2019 WL
3729033, at *3. However, before such an action may be brought, the party seeking review must
exhaust all administrative procedures under the IDEA. 20 U.S.C. § 1415(l).
3. Rehabilitation Act of 1973
Section 504 of the Rehabilitation Act requires that “no . . . individual with a disability in
the United States . . . shall, solely by reason of her or his disability, be excluded from the
participation in . . . any program or activity receiving Federal financial assistance.” 29 U.S.C.
§ 794(a); see also 34 C.F.R. 104.4. As applied to public education, Section 504 requires that
disabled children have equal access to educational opportunities that non-disabled children
enjoy. Id. In addition, under Section 504, if parents dispute the school district’s identification,
evaluation, or placement of disabled students, an impartial hearing must be held. 34 C.F.R.
104.36.
Section 504 is not coextensive with the IDEA. “While the IDEA focuses on the
provision of appropriate public education to disabled children, the Rehabilitation Act of 1973

more broadly addresses the provision of state services to disabled individuals.” Mark H. v.
Lemahieu, 513 F.3d 922, 929 (9th Cir. 2008). Nevertheless, public schools receiving federal
funds must still “provide a free appropriate public education to each qualified handicapped
person” under Section 504. Id.
B. Factual Background
The facts are set forth as alleged by plaintiffs in the complaint and attached exhibits.
Cynthia (“Cindy”) and James (“Jim”) Dizio are residents of Essex, Massachusetts, and
the parents of Jane Doe. (Compl. ¶¶ 3-5). Jane is approximately 16 years old. (Id. ¶ 21).
According to the complaint, she has a variety of disabilities, including ADHD, predominantly
inattentive presentation, anxiety disorder, school refusal, depression, slow processing disorder,

possible mood disorder, and executive function deficiencies. (Id. ¶ 22). Although she has since
changed schools, during most of the relevant period she was a student in MERSD. (Id. ¶ 6).
1. Elementary School
Cindy first expressed concerns about Jane’s performance in school during the 2009-2010
school year, when Jane was in first grade. (Id. ¶ 24). She told MERSD staff in meetings and by
e-mail that she was concerned that Jane was not finishing her schoolwork at the same rate as
other students. (Id. ¶¶ 23-24). The school did not test Jane for special-education eligibility that
year. (Id.).
When Jane was in the second, third, and fourth grades, Cindy continued to express
concerns about her academic difficulties to MERSD staff. (Id. ¶¶ 26-27, 29). Jane was not,
however, evaluated for special-education eligibility. (Id. ¶ 28). According to the complaint,
when Jane was in fourth grade, Jennifer Kelly, Psy.D., diagnosed ADHD and recommended that
Cindy request testing through the school to get a “504 plan.” (Id.). On January 3, 2013, Cindy

requested an evaluation from the school. (Id. ¶ 30).
On March 25, 2013, Jane was evaluated by Dr. Debra Welling, an elementary-school
psychologist. (Id. ¶ 32). The complaint alleges that Dr. Welling noted that Jane’s slower
processing ability made it difficult for her to keep up in class. (Id.). However, on April 29,
2013, Helen Bryan, the MERSD special-education coordinator, wrote to Cindy to inform her that
Jane was not eligible for special-education services. (Id. ¶ 33).
When Jane was in fifth grade, Cindy continued to express concerns to MERSD staff.
(Id. ¶ 34). In January 2014, Jane was evaluated by Dr. Kathy Pennoyer. The complaint alleges
that Dr. Pennoyer noted her slow processing speeds and recommended accommodations. (Id. ¶
35). In March 2014, Kelly requested various accommodations for Jane. (Id. ¶¶ 36-39). School

officials advised her that Jane did not qualify. According to the complaint, throughout that
school year, Jane continued to struggle with homework, became withdrawn, and stopped
attending extracurricular activities. (Id. ¶¶ 38-40).
2. Middle School
During the summer between Jane’s fifth- and sixth-grade years, Cindy and Jim met with
middle-school principal Steve Guditis to discuss their concerns about Jane’s transition to middle
school. (Id. ¶ 41).
During Jane’s sixth-grade year, Jim and Cindy met with and e-mailed Jane’s teachers to
ask for help with her struggles in school and with homework. (Id. ¶ 42). Principal Guditis
suggested that Jane work with an interventionist. (Id. ¶ 43). According to the complaint, Cindy
again requested a plan for Jane and was again denied. (Id.). The school did not evaluate Jane
and did not provide special-education services that school year. (Id. ¶ 44).
In September 2015, Jane’s seventh-grade year, Cindy e-mailed MERSD to request that

Jane continue working with the interventionist. (Id. ¶ 45). In October, Cindy and Jim hired an
advocate and continued to seek an IEP and plan for Jane. (Id. ¶ 46). According to the complaint,
Jane’s mental health continued to deteriorate, and she fell behind in her classes. (Id.). On
October 13, 2015, Cindy requested a psycho-educational reevaluation. (Id. ¶ 47).
On November 13, 2015, Cindy e-mailed Principal Guditis and Allison Collins to request
an emergency meeting concerning Jane’s inability to access the curriculum at the school and her
deteriorating emotional health. (Id. ¶ 48). According to the complaint, Jane’s therapist, Dana
Modell, diagnosed “school refusal/school phobia (where students because so anxious and fearful
that they cannot go to school)” and wrote a letter to MERSD explaining Jane’s emotional decline
and need for support. (Id.). The emergency meeting was held on November 19, and all of Jane’s

teachers except for one waived her outstanding assignments. (Id.).
a. Child Requiring Assistance Case
According to the complaint, Jane missed five days of school during the first week of
December 2015, two days due to a stomachache, and three because she was “terrified to go to
school” and therefore “too emotionally fragile” to attend. (Id. ¶¶ 50-51, 73).
On the fourth day of that week, December 4, 2015, Principal Guditis e-mailed Cindy and
Jim concerning Jane’s absences. (Id. ¶ 51). He wrote that “we [at MERSD] share your concern
that Jane has refused to attend school for the past four school days.” (Id.). He elaborated:
In response to Jane’s reported challenges with homework and emotional
regulation at home, we have communicated frequently and recently met to
develop additional interventions. In addition, staff and I have offered and
suggested multiple interventions to help Jane attend school . . . . As we have
previously discussed, I am very eager to work collaboratively with you in
supporting Jane’s consistent attendance. If we are unable to work successfully on
the attendance issue due to Jane’s resistant to attending school, I will need to seek
collateral agency support for Jane in order to resolve this matter.

(Id.).
Cindy responded to the e-mail the same day, stating that “I don’t believe it has been 4
days of refusal,” and asserting that only two of those four absences were due to school refusal—
that is, days when Jane “could not get herself to go”—but that the other two were due to a
stomachache. (Id. ¶ 52). She then addressed their recent communications concerning additional
support for Jane:
Yes, we have communicated frequently. And we met the week before
Thanksgiving to discuss interventions to support Jane in school. However, the
few days Jane did go to school after that, [only one of the interventions we
discussed was implemented,] . . . that is all that happened. Jane knows that we
have been working diligently to get her support that she needs but she is not
feeling supported in school . . . . [Jane] has been struggling for the last 3 years, so
much so that we have asked for various supports that have not been addressed
effectively. The weight of pressure she feels in school is what is immobilizing
her to attend . . . . I believe we all want what is best for Jane and if going to school
is causing her the stress and anxiety that she is displaying, then for now, it doesn’t
seem that that is what is best for Jane.

(Id.). Principal Guditis responded to Cindy’s e-mail later that day informing her that he had filed
a Child Requiring Assistance (“CRA”) case with the Essex Juvenile Court. (Id. ¶ 53).
On December 8, 2015, Cindy brought Jane to a psychiatric-crisis center and later to her
therapist and to her primary-care physician, Dr. Jonathan March. (Id. ¶ 57). Dr. March wrote a
request for temporary home and hospital education. (Id.). According to the complaint, he
explained in that request that Jane “was in such a state of anxiety that she was unable to access
the curriculum in a traditional classroom setting and until appropriate accommodations were
made . . . , she would require a home tutor.” (Id.).
On December 9, 2015, Collins wrote to the Dizios “to provide a summary of meeting
findings, respond to several recent inquiries from you and your advocate, and recommend next
steps.” (Id. ¶ 58). She wrote, among other things, that although “Jane has struggled with
attendance and emotional and behavioral issues at home per your report,” MERSD “did not

agree that these issues resulted from her diagnosed disability (ADHD)” and “felt that more
information was needed to determine whether Jane presents with an emotional disability . . . .”
(Id.).
“While waiting for MERSD to comply with [Dr. March’s] request for home and hospital
education,” Cindy and Jim hired a tutor for Jane. (Id. ¶ 59). They also continued to e-mail the
school about Jane’s current emotional state, including her school refusal, and their request for
MERSD to arrange tutoring for her. (Id. ¶¶ 59-60).
On December 15, 2015, Collins wrote to Cindy and Jim explaining that the request from
Dr. March did not satisfy the requirements for home-hospital tutoring. (Id. ¶ 61).
b. Withdrawal from MERSD

On December 18, 2015, Cindy enrolled Jane in TEC Connections Academy
Commonwealth Virtual School (“TECCA”), a Massachusetts online public school. (Id. ¶ 64). In
the preceding days, Jane apparently was “crying uncontrollably when forced to go to school” and
felt “pressured” by Principal Guditis to attend class despite her emotional instability. (Id. ¶ 63).
“In response,” the Dizios enrolled Jane in TECCA and withdrew her from MERSD schools. (Id.
¶ 64).
At TECCA, Jane was put on an IEP but still struggled to keep up. (Id. ¶ 67). In early
January 2016, Jane underwent a neuropsychological examination with Dr. Susan Brefach, who
allegedly confirmed her slow processing speeds. (Id. ¶ 66).
Near the end of Jane’s seventh-grade year, Cindy and Jim enrolled her in New Hope
Tutorials to provide her with more peer interaction. (Id. ¶ 70).
In April 2016, Jane inquired about re-enrolling in the journalism club at MERSD,

although she was no longer a student at the school. (Id. ¶ 69). Cindy spoke with an
administrative assistant at MERSD, who apparently told her that Principal Guditis “had granted
permission for Jane to participate in any after school clubs and dances.” (Id.). Jane began
attending journalism club weekly thereafter, but remained “withdrawn and depressed from lack
of peer interaction.” (Id.).
At the beginning of the 2016-2017 school year, Cindy and Jim inquired whether MERSD
would honor Jane’s IEP and 504 plan if she returned to school. (Id. ¶ 71). They met with the
school principal to discuss the resources that they believed Jane would need. (Id.).
In October 2016, Jane enrolled in the Rockport school system. (Id. ¶ 75). The complaint
alleges that at Rockport she was “forced to repeat seventh grade as a result of her denial of

special education resources by the Defendants.” (Id.).
According to the complaint, in October 2016, Jane asked to attend the MERSD
Halloween dance. (Id. ¶ 72). At that point, she was not enrolled in the MERSD schools. The
complaint alleges that MERSD staff originally told her she could attend the dance, but told her a
week later that she could not. (Id.). An MERSD staff person also allegedly told Cindy at that
time that Jane could no longer participate in journalism club, or any other after-school clubs,
going forward. (Id. ¶ 73).
On October 19, 2016, Cindy e-mailed superintendent Pamela Beaudoin and the MERSD
School Committee concerning, among other things, their refusal to permit Jane to participate in
extracurricular activities. (Id.). She asked the superintendent to identify the specific district
policy that purportedly prevented students like Jane who are “within [the] district [but] who
attend virtual school” from participating in extracurriculars. (Id.). She also elaborated on the
circumstances surrounding Jane’s December 2015 school absences that preceded the CRA case.

(Id.). She stated that Jane was struggling to keep up in school at that time, and that she was so
stressed and terrified that she would become physically sick if she went to school. (Id.). “Jane
was not being truant . . . she was not skipping school to hang out with friends . . . she was
terrified,” she wrote. (Id.) (alterations in original). As to the Dizios’ decision to withdraw Jane
from MERSD, she wrote that they “had no choice . . . after repeatedly being denied appropriate
supports for her disabilities.” (Id.).
According to the complaint, “[i]n response” to Cindy’s e-mail, the superintendent
discriminated against Jane and retaliated against Cindy and Jim by “refusing to permit Jane to
attend the dance or any other extracurriculars.” (Id. ¶ 74).
C. Procedural Background

The complaint in this action was filed on December 3, 2019. The complaint asserts eight
claims against all defendants: (1) a claim for discrimination based on disability in violation of
Title II of the Americans with Disabilities Act (“ADA”) and § 504 of the Rehabilitation Act, 29
U.S.C. 794; (2) a claim under 42 U.S.C. § 1983 for due-process violations and failure to provide
a FAPE as guaranteed by IDEA, 20 U.S.C.A. § 1400(d)(1)(A); (3) a claim under § 1983 for
violations of IDEA; (4) a claim for violations of the Massachusetts Civil Rights Act, Mass. Gen.
Laws ch. 12, § 111; (5) negligence; (6) retaliation; (7) negligent and intentional infliction of
emotional distress; and (8) loss of consortium.
Defendants have moved to dismiss the complaint under Fed. R. Civ. P. 12(b)(1) for lack
of subject-matter jurisdiction and Fed. R. Civ. P. 12(b)(6) for failure to state a claim.
II. Legal Standards
On a motion to dismiss for lack of subject-matter jurisdiction made pursuant to Fed. R.
Civ. P. 12(b)(1), “‘the party invoking the jurisdiction of a federal court carries the burden of

proving its existence.” Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995) (quoting Taber
Partners, I v. Merit Builders, Inc., 987 F.2d 57, 60 (1st Cir. 1993)). When ruling on a 12(b)(1)
motion the court “must credit the plaintiff's well-[pleaded] factual allegations and draw all
reasonable inferences in the plaintiff's favor.” Merlonghi v. United States, 620 F.3d 50, 54 (1st
Cir. 2010).
On a motion to dismiss made pursuant to Rule 12(b)(6), the court “must assume the truth
of all well-plead[ed] facts and give . . . plaintiff the benefit of all reasonable inferences
therefrom.” Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing
Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999)). To survive a motion to dismiss, the
complaint must state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007). In other words, the “[f]actual allegations must be enough to raise a right to
relief above the speculative level, . . . on the assumption that all the allegations in the complaint
are true (even if doubtful in fact).” Id. at 555 (citations omitted). “The plausibility standard is
not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly,
550 U.S. at 556). Dismissal is appropriate if the complaint fails to set forth “factual allegations,
either direct or inferential, respecting each material element necessary to sustain recovery under
some actionable legal theory.” Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. 2008) (quoting
Centro Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir. 2005)).
III. Analysis
Defendants have moved to dismiss the complaint. Their primary contention is that the
complaint should be dismissed for lack of subject-matter jurisdiction because all eight counts are
“a derivative repackaging of violations of [IDEA] under a different legal theory,” and therefore

“should be viewed within the scope of IDEA requirements, specifically the statutory scheme to
exhaust administrative remedies” at the BSEA. They further contend that because plaintiffs
failed to exhaust their administrative remedies at the BSEA, as IDEA requires, the complaint
should be dismissed. In the alternative, they contend that once Counts One through Four are
dismissed for failure to exhaust administrative remedies, the Court should decline to exercise
supplemental jurisdiction over Counts Five through Eight, the state-law claims. They further
contend that the complaint should be dismissed because plaintiffs have failed to plead all factual
elements required at law.
Plaintiffs oppose the motion, contending that IDEA’s exhaustion requirement is limited
to equitable claims, and does not apply to their claims for money damages for denial of a FAPE.

Plaintiffs primarily rely on the Fry case to support that proposition. See Fry v. Napoleon Cmty.
Sch., 137 S. Ct. 743, 749 (2017). They further contend that the court has supplemental
jurisdiction over the state-law claims because the federal and state claims arise from a common
nucleus of operative fact.
For the reasons discussed below, the Court finds that IDEA’s exhaustion requirement is
not limited to equitable claims, and that plaintiffs in fact have failed to satisfy that requirement.
Counts One, Two, Three, Four, and Five will therefore be dismissed for lack of subject-matter
jurisdiction. The Court further finds that the remaining state-law claims are effectively based on
the IDEA claims, and will therefore be dismissed.
A. Failure to Exhaust Under IDEA
IDEA’s exhaustion provision provides as follows:
Nothing in [the IDEA] shall be construed to restrict or limit the rights, procedures,
and remedies available under the Constitution, the Americans with Disabilities
Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws
protecting the rights of children with disabilities, except that before the filing of a
civil action under such laws seeking relief that is also available under this
subchapter, the procedures under subsections (f) and (g) shall be exhausted to the
same extent as would be required had the action been brought under this
subchapter.

20 U.S.C. § 1415(l). That exhaustion requirement “is not limited to claims based directly upon
violations of the IDEA, and applies “even when the suit is brought pursuant to a different statute
so long as the party is seeking relief that is available under subchapter II of IDEA.” Frazier v.
Fairhaven Sch. Comm., 276 F.3d 52, 59 (1st Cir. 2002); Rose v. Yeaw, 214 F.3d 206, 210 (1st
Cir. 2000).
In Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 29 (1st Cir. 2006), the First Circuit held
that “where the underlying claim is one of violation of the IDEA, plaintiffs may not use §
1983—or any other federal statute for that matter—in an attempt to evade the limited remedial
structure of the IDEA.” One district court has held that IDEA’s exhaustion requirement “applies
to actions brought under the IDEA, the ADA, § 504, or any § 1983 claim based upon violations
of a student’s IDEA rights.” CBDE Pub. Sch. v. Massachusetts Bureau of Special Educ.
Appeals, 2012 WL 4482296, at *6 (D. Mass. Sept. 27, 2012) (citing Weber v. Cranston Sch.
Comm., 212 F.3d 41, 51-52 (1st Cir. 2000); Rose, 214 F.3d at 210; Bowden v. Dever, 2002 WL
472293, at *4-5 & n.6 (D. Mass. Mar. 20, 2002)). In those cases, “[a] district court, therefore,
has no subject matter jurisdiction . . . until this exhaustion requirement has been met.” Id. (citing
Polera v. Board of Educ. of the Newburgh Enlarged Sch. Dist., 288 F.3d 478, 483 (2d Cir.
2002)).
However, exhaustion under IDEA “may not be required” in “certain cases.” Pihl v.
Massachusetts Dep't of Educ., 9 F.3d 184, 190 (1st Cir. 1993). Those limited exceptions to
exhaustion are “where the pursuit of administrative remedies would be (1) futile or inadequate;
(2) waste resources, and work severe or irreparable harm on the litigant; or (3) when issues

raised involve purely legal questions.” Id. “The party seeking exemption bears the burden of
establishing that it applies.” Id. (citing Rose, 214 F.3d at 210). The fact that the BSEA lacks
authority to award money damages does not render an IDEA-based claim that seeks money
damages under § 1983 futile, however, and exhaustion is not excused in such a case. See
Frazier, 276 F.3d at 63-64.
The cases discussed above preceded the decision of the United States Supreme Court in
Fry v. Napoleon Community Schools, 137 S. Ct. 743 (2017). In that case, the Court held that
IDEA’s exhaustion requirement applies only where the plaintiff “seek[s] relief for the denial of a
FAPE, because that is the only relief the IDEA makes available.” Id. at 752 (quotations
omitted). The Court observed:

[Section] 1415(l )'s exhaustion rule hinges on whether a lawsuit seeks relief for
the denial of a free appropriate public education. If a lawsuit charges such a
denial, the plaintiff cannot escape § 1415(l ) merely by bringing her suit under a
statute other than the IDEA—as when, for example, [a plaintiff] claim[s] that a
school's failure to provide a FAPE also violated the Rehabilitation Act. Rather,
that plaintiff must first submit her case to an IDEA hearing officer, experienced in
addressing exactly the issues she raises. But if, in a suit brought under a different
statute, the remedy sought is not for the denial of a FAPE, then exhaustion of the
IDEA's procedures is not required . . . . A school's conduct toward such a child—
say, some refusal to make an accommodation—might injure her in ways unrelated
to a FAPE, which are addressed in statutes other than the IDEA. A complaint
seeking redress for those other harms, independent of any FAPE denial, is not
subject to § 1415(l )'s exhaustion rule because, once again, the only “relief” the
IDEA makes “available” is relief for the denial of a FAPE.

Id. at 754-55 (footnote omitted).
The Supreme Court in Fry further concluded that “in determining whether a suit indeed
seeks relief for [a FAPE denial], a court should look to the substance, or gravamen, of the
plaintiff’s complaint.” Id. at 752 (quotations omitted). It observed that “[o]ne clue to whether
the gravamen of a complaint against a school concerns the denial of a FAPE, or instead
addresses disability-based discrimination, can come from asking a pair of hypothetical

questions.”
First, could the plaintiff have brought essentially the same claim if the alleged
conduct had occurred at a public facility that was not a school—say, a public
theater or library? And second, could an adult at the school—say, an employee or
visitor—have pressed essentially the same grievance? When the answer to those
questions is yes, a complaint that does not expressly allege the denial of a FAPE
is also unlikely to be truly about that subject; after all, in those other situations
there is no FAPE obligation and yet the same basic suit could go forward. But
when the answer is no, then the complaint probably does concern a FAPE, even if
it does not explicitly say so; for the FAPE requirement is all that explains why
only a child in the school setting (not an adult in that setting or a child in some
other) has a viable claim.

Id. at 756.

The Supreme Court also observed that “[a] further sign that the gravamen of a suit is the
denial of a FAPE can emerge from the history of the proceeding.”
In particular, a court may consider that a plaintiff has previously invoked the
IDEA's formal procedures to handle the dispute—thus starting to exhaust the
Act's remedies before switching midstream. . . . . A plaintiff's initial choice to
pursue that process may suggest that she is indeed seeking relief for the denial of
a FAPE—with the shift to judicial proceedings prior to full exhaustion reflecting
only strategic calculations about how to maximize the prospects of such a remedy.
Whether that is so depends on the facts; a court may conclude, for example, that
the move to a courtroom came from a late-acquired awareness that the school had
fulfilled its FAPE obligation and that the grievance involves something else
entirely. But prior pursuit of the IDEA's administrative remedies will often
provide strong evidence that the substance of a plaintiff's claim concerns the
denial of a FAPE, even if the complaint never explicitly uses that term.

Id. at 757 (emphasis added).
Since Fry was decided, the First Circuit issued its opinion in Parent/Professional
Advocacy League. “Applying Fry for the first time in [the First Circuit],” the court concluded
that the plaintiffs’ claim for disability-based discrimination under the ADA was nonetheless
subject to the IDEA’s exhaustion requirement where it “[sought] relief that [was] also available”
under the IDEA. 2019 WL 3729033, at *7 (quoting 20 U.S.C. § 1415(1)). The court observed:
On its surface, the complaint pleads disability-based discrimination: it alleges that the
defendants are violating the ADA by unnecessarily segregating students with mental
health disabilities in a separate and unequal educational program. And the complaint
never uses the term FAPE. Yet, the crux of the complaint is that the defendants failed to
provide the educational instruction and related services that the class plaintiffs need to
access an appropriate education in an appropriate environment. That is not a claim of
simple discrimination; it is a claim “contesting the adequacy of a special education
program.”

Id. (quoting Fry, 137 S. Ct. at 755).

Here, Counts One through Five of the complaint explicitly use the term FAPE—indeed,
the denial of a FAPE is the specific harm alleged in those causes of action. Count Four, for
example, although brought under the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, §
111, alleges that “[d]efendants violated plaintiff’s rights under state and federal law to be free
from discrimination based on her disability and her right to a FAPE.” (Compl. ¶ 143) (emphasis
added). And Count Five, a claim for negligence, alleges that “[d]efendants breached the duty of
care owed to Jane of a FAPE . . . .” (Id. ¶ 155).
Counts One though Three invoke the denial of a FAPE as the basis for the cause of action
even more explicitly. Count One alleges that the denial of a FAPE resulted in discrimination
based on Jane’s disability, in violation of Title II of the ADA and § 504 of the Rehabilitation
Act. (Id. ¶¶ 82-108). Count Two alleges due-process violations, through § 1983, and failure to
provide a FAPE as guaranteed by IDEA. (Id. ¶¶ 109-22). Count Three alleges the denial of a
FAPE and failure to comply with IDEA through § 1983. (Id. ¶¶ 122-40).
In addition, Counts One through Five all fail the hypothetical-questions test set forth by
the Supreme Court in Fry for determining if a claim addresses disability-based discrimination,
and not the denial of a FAPE. As to the first question, if the alleged conduct by defendants had
occurred at a public theater or a library, plaintiffs could not have brought essentially the same
claims as they do here. As to the second, an adult employee or visitor at MERSD could not have
pressed essentially the same grievance as plaintiffs do here.

With respect to Counts One through Five, therefore, the gravamen of each cause of action
is the denial of a FAPE. Those counts are therefore subject to IDEA’s exhaustion requirement,
and subject to dismissal on that basis.
That is not the end of the analysis, however, because the plaintiffs here seek money
damages to compensate them for what are essentially emotional injuries. (See, e.g., Compl. ¶¶
117, 122, 129, 145, 160, 168, 174-75; id. at 47). The Court in Fry was clear that its decision did
not address “a case in which a plaintiff, although charging the denial of a FAPE, seeks a form of
remedy that an IDEA officer cannot give—for example, . . . money damages for resulting
emotional injury.” See 137 S. Ct. at 754 n.8; see also id. at 752 n.4 (“[W]e leave for another day
a further question . . . : Is exhaustion required when the plaintiff complains of the denial of a

FAPE, but the specific remedy she requests—here, money damages for emotional distress—is
not one that an IDEA hearing officer may award?”).
The First Circuit does not appear to have addressed the question of exhaustion and money
damages posed by Fry.3 However, several district court opinions decided after Fry have
concluded that claims for money damages are subject to IDEA’s exhaustion requirement. See
Doucette v. Jacobs, 288 F. Supp. 3d 459, 476 (D. Mass. 2018) (“[I]t is clear in the First Circuit
that the fact that the plaintiffs are seeking only monetary damages does not relieve them of the
requirement that they exhaust their administrative remedies.”); Johnson v. Boston Pub. Sch.,

3 The plaintiffs in Parent/Professional Advocacy League sought only declaratory and injunctive relief. See
2019 WL 3729033, at *1.
2018 WL 1524397, at *2 (D. Mass. Mar. 28, 2018) (“[E]xhaustion is required where plaintiffs
seek money damages”); Raymond v. Maine Sch. Admin. Dist. 6, 2019 WL 2110498, at *10 (D.
Me. May 14, 2019) (“Plaintiffs' demand for monetary damages under § 504 does not foreclose
the exhaustion requirement under the IDEA.”); Tveter v. Derry Coop. Sch. Dist. SAU #10, 2018

WL 3520827, at *3 (D.N.H. July 20, 2018) (“The duty to exhaust administrative remedies
applies both to claims for injunctive relief and claims for damages even though the IDEA does
not provide a private right to sue for damages.”); T.K. v. Town of Barnstable, 2018 WL 3748166,
at *9 (D. Mass. Aug. 6, 2018) (same).
As one district court concluded:
In the absence of clarification of this point from the Supreme Court, this court
continues to follow the approach taken by the First Circuit in Frazier, which is to
require exhaustion, even if monetary damages are sought, because the ultimate
determination as to the appropriateness of monetary damages will be informed by
the administrative record assembled during the exhaustion of IDEA procedural
remedies.”

S.S. by S.Y. v. City of Springfield, 332 F. Supp. 3d 367, 377 n.8 (D. Mass. 2018).
Plaintiffs contend that Thomas v. Town of Chelmsford, 267 F. Supp. 3d 279, 309 (D.
Mass. 2017), “speaks directly to the point,” and supports their contention that “[w]here equitable
remedies are inadequate to compensate a Plaintiff, she is permitted to pursue damages through
common law or other statutes.” (Pls. Mem. in Opp. at 5). Thomas does speak directly to the
issue of exhaustion under IDEA and money damages, but not in plaintiffs’ favor. In that case,
the court dismissed the plaintiffs’ IDEA claim for failure to exhaust administrative remedies,
despite their claim for reimbursement for costs related to the child’s transfer from public school
to private school. The court concluded that the plaintiffs had failed to meet their burden of
proving an exemption to exhaustion merely “by claiming in a conclusory manner that IDEA
procedures would have been futile” or inadequate to remedy the alleged FAPE deprivation and
accompanying claim for money damages. See id. at 308-09.
In the absence of further appellate clarification, the Court will continue to follow the First
Circuit’s approach in Frazier. Plaintiffs’ claims are therefore subject to IDEA’s exhaustion
requirements, notwithstanding their request for money damages. Counts One though Five will

therefore be dismissed for lack of subject-matter jurisdiction.
B. The Remaining Claims
The remaining state-law claims (Counts Six, Seven, and Eight) are not as directly
premised on the denial of a FAPE. Nonetheless, their success is clearly dependent on proof of an
IDEA violation, and therefore the claims are likewise foreclosed. See Diaz-Fonseca, 451 F.3d at
29 (“where the underlying claim is one of violation of the IDEA, plaintiffs may not use § 1983—
or any other federal statute for that matter—in an attempt to evade the limited remedial structure
of the IDEA”); Millay v. Surry Sch. Dep't, 2009 WL 5184388, at *28-29 & n.31 (D. Me. Dec.
22, 2009) (where additional claims “are not premised on facts and circumstances extraneous to
the process of trying to provide a [FAPE],” those claims should be dismissed, not on exhaustion

grounds, but rather because “they are presented on facts bound together with [an] IDEA claim
and Diaz-Fonseca forecloses relief in such situations”), report and recommendation adopted sub
nom. Millay ex rel. YRM v. Surry Sch. Dep't, 707 F. Supp. 2d 56 (D. Me. 2010) (citing Diaz-
Fonseca, 451 F.3d at 29).
Count Six alleges retaliation against all defendants under the Massachusetts Tort Claims
Act, Mass. Gen. Laws ch. 258, § 2. It alleges that defendants retaliated against plaintiffs, in
various ways, for engaging in protected activity under Section 504 of the Rehabilitation Act and
Title II of the ADA. Specifically, it alleges that Principal Guditis, “acting as agent of all
defendants,” retaliated against plaintiffs for engaging in protected activity when he filed a CRA
case with the Essex Juvenile Court in December 2015 after Jane stopped going to school.
(Compl. ¶ 166). It further alleges that Superintendent Beaudoin, also “acting as agent of all
defendants,” retaliated against plaintiffs for engaging in protected activity by refusing to permit
Jane to attend a school dance in October 2016, and by “revoking [her] permission to attend

MERSD journalism club.” (Id. ¶ 167).
Normally, a retaliation claim can be brought even if the plaintiff cannot prove a violation
of the underlying statute. “Both the Rehabilitation Act, through its implementing regulations,
see 28 C.F.R. § 42.503(b)(1)(vii), and the ADA, see 42 U.S.C. § 12203(a), 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. v. Esposito, 675 F.3d 26, 40 (1st Cir.
2012). “A plaintiff need not succeed on a disability discrimination claim in order to assert a
claim for retaliation.” Id. at 40-41 (citing Colón-Fontánez v. Municipality of San Juan, 660 F.3d
17, 36 (1st Cir. 2011)). Although retaliation claims may “overlap, in part,” with an IDEA claim,
claims for retaliation that “rest on improper retaliatory intent, are by no means mirrors of the

IDEA.” Id. at 41 (citing Ramírez-Senda ex rel. M.M.R.-Z. v. Puerto Rico, 528 F.3d 9, 15 (1st
Cir. 2008); Diaz-Fonseca, 451 F.3d at 29).
Here, however, the retaliation claim is not independent of the claims for denial of a
FAPE. The first incident, involving the filing of the CRA case, was a truancy-enforcement effort
that is inextricably intertwined with the dispute concerning the alleged wrongful denial of a
FAPE. Among other things, plaintiffs cannot prove retaliation without also proving a failure to
provide a FAPE; if the school acted properly, then Cindy was not justified in keeping Jane out of
school, and it was appropriate for Principal Guditis to file an action for truancy.
The Millay court found, under analogous facts, that truancy enforcement is an “inevitable
characteristic of this kind of IEP impasse” where the parent of the disabled child contends that
“she had no choice but to keep [the child] home due to violations of the IDEA,” and the school
contends that “it has no choice but to report habitual truancy under [state] law.” Millay, 2009
WL 5184388, at *29. “Moreover,” the court observed, “as far as discrimination is concerned,

truancy enforcement is meant to result in attendance at school, not exclusion from school.”
“Because [a truancy enforcement] effort is designed to ensure attendance and participation,” the
court concluded that “it does not run afoul of the Rehabilitation Act and the ADA's prohibition
against exclusion from programs and activities on the basis of disability.” Id. The court
ultimately concluded that the plaintiff’s “truancy enforcement theory of [discrimination or]
retaliation [was] subsumed within the rule applied in Diaz-Fonseca.” Id. The court observed:
The truancy concern is an inevitable feature of an IDEA controversy in which the
parent refuses to send a child to what she regards as an inappropriate special
education program that the school maintains is appropriate, at least where the
parent has not arranged for placement in a private program of her own choosing
or submitted paperwork in support of a home-schooling program. After all, it is
the IDEA that generates [the parent’s] contention that [the child] is entitled to a
specific special education program to be administered at a specific public high
school. Relabeling the claims as [discrimination or] retaliation claims does not
succeed in making them something other than claims related to the evaluation and
placement of [the child] under the IDEA.

Id.
The other incidents, involving Superintendent Beaudoin’s refusal to allow Jane to attend
a dance or participate in journalism club, are likewise inextricably intertwined with, and
dependent on, the IEP impasse between the parties. Jane was not enrolled in the MERSD
schools at the time she sought to participate in those extracurricular activities; the Dizios had
withdrawn her from school because of defendants’ alleged failure to provide her with a FAPE.
And, according to the complaint, school officials would not allow Jane to participate in school
activities because she was not enrolled in school.
Of course, any claim for retaliation in an IDEA case necessarily flows from the plaintiffs’
assertion of rights under the statute. The claims in Count Six, however, arise from Jane’s
absence from school, and are based entirely on the school’s efforts to enforce her attendance and
address the consequences of her absence. Again, and as a practical matter, it would be

impossible to try such claims without trying the underlying claim for denial of a FAPE; whether
Jane’s absence was justified, or the school’s actions were appropriate, depends entirely on
whether the school had met its statutory obligations under IDEA. Count Six therefore fails to
state a claim for retaliation independent of IDEA, and accordingly will be dismissed.
Count Seven alleges negligent and intentional infliction of emotional distress (“NIED”)
due to defendants’ discrimination and retaliation against Jane Doe. It specifically alleges that
despite MERSD’s “aware[ness]” of Jane’s various alleged disabilities and emotional disorder,
and despite “repeated updates regarding Jane’s mental deterioration, breakdowns, crying
episodes, and overall depression and anxiety, Defendant[s] continued to retaliate against her.”
(Compl. ¶ 171). The alleged retaliation, again, consisted of truancy enforcement efforts and a

refusal to permit a non-student to participate in student activities. Those allegations flow directly
from the defendants’ alleged retaliation against Jane, which, as discussed above, are allegations
bound up with the IDEA claims. The NIED claim therefore “does not give rise to a plausible
entitlement to relief against [defendants] beyond the remedies authorized by the IDEA,” and will
be dismissed. See Millay, 2009 WL 5184388, at *29.
Finally, Count Eight is a claim by Cindy and Jim for loss of consortium pursuant to Mass.
Gen. Laws ch. 231, § 85X. It specifically alleges that “[a]s a direct and proximate result of the
defendants’ negligence, Cindy and Jim Dizio have been deprived of the society, love, affection,
companionship, care and services of their child, Jane . . . .” (Compl. ¶ 178). Because the claim
for loss of consortium is based on Count Five’s claim for negligence due to “[d]efendants
breach[] [of] the duty of care owed to Jane of a FAPE, (id. ¶ 155), which will be dismissed for
failure to exhaust administrative remedies under IDEA, Count Eight does not state a plausible
claim for relief, and will also be dismissed.

In summary, the remaining state-law claims for retaliation (Count Six), negligent and
intentional infliction of emotional distress (Count Seven), and loss of consortium (Count Eight)
will be dismissed in accordance with Diaz-Fonseca for failure to state a claim upon which relief
can be granted.4
IV. Conclusion
For the foregoing reasons, defendants’ motion to dismiss is GRANTED as to Counts
One, Two, Three, Four, and Five under Fed. R. Civ. P. 12(b)(1) for lack of subject-matter
jurisdiction, and as to Counts Six, Seven, and Eight under Fed. R. Civ. P. 12(b)(6) for failure to
state a claim upon which relief can be granted.
So Ordered.

/s/ F. Dennis Saylor
F. Dennis Saylor IV
Dated: August 12, 2019 United States District Judge

4 The Court notes that it would decline to exercise supplemental jurisdiction over any of the state-law
claims even if they were viable.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10197948. Public record. Not legal advice.