Doe v. Dennis-Yarmouth Regional School District

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

________________________________________

)

MARY DOE, as Guardian of JANE DOE, )

and MARY DOE and JOHN DOE, )

Individually, as parents of JANE DOE, )

)

)

Plaintiffs, )

) Civil Action

v. ) No. 21-cv-10172-PBS

)

DENNIS-YARMOUTH REGIONAL SCHOOL )

DISTRICT, ABIR ZAINEH, SUSAN HARDIGAN, )

MARY MOEs 1-5, and MICHAEL MOEs 1-5, )

)

Defendants. )

______________________________ )

MEMORANDUM AND ORDER

January 4, 2022

Saris, D.J.

INTRODUCTION

Jane Doe (“Jane”), a sixteen-year-old, was enrolled in

Dennis-Yarmouth Regional High School’s Wave Program for students

with mental disabilities. After Jane was allowed to go to the

bathroom unsupervised, Jane’s assistant discovered her and a

male Wave Program student in the boys’ bathroom with their

clothes off. Plaintiffs, Mary Doe, as guardian of Jane Doe, and

Mary Doe and John Doe, individually, as parents of Jane Doe

(“the Does”), allege that Jane was sexually assaulted, harassed,

and abused. They assert various federal, constitutional, and

common law tort claims against Dennis-Yarmouth Regional School

District (“Dennis-Yarmouth”). Count I alleges that Dennis-

Yarmouth was negligent in failing to supervise students who

required 1 to 1 supervision for the entire school day under the

Massachusetts Tort Claims Act, M.G.L. c. 258 § 2. Count II

alleges a deprivation of due process rights under 42 U.S.C. §

1983. Count III alleges a violation of Section 504 of the

Rehabilitation Act. 29 U.S.C. § 794 Count IV alleges a violation

of Title IX of the Education Amendments of 1972, 20 U.S.C. §§

1681-1686.

Plaintiffs also assert claims against Abir Zaineh, the head

of the Wave program, and Jane’s assistant Susan Hardigan. Count

V, VI, and VII allege a deprivation of Jane’s rights as a

handicapped person under Section 103 of Chapter 93 of

Massachusetts General Laws by Dennis-Yarmouth, Abir Zaineh, and

Susan Hardigan, respectively. Counts VIII and IX allege

Intentional Infliction of Emotional Distress by the two

individual defendants. Count X alleges loss of consortium for

Plaintiffs Mary Doe and John Doe as parents of Jane Doe against

all defendants.

After hearing, Zaineh and Hardigan’s motions to dismiss

(Dkt. 16, Dkt. 19) are ALLOWED (Counts VI, VII, VIII, IX, X).

The Court determines there is no just reason for delay and

grants Zaineh and Hardigan’s motions for separate and final

judgment under Federal Rule of Civil Procedure 54(b). Defendant

Dennis-Yarmouth’s motion to dismiss is ALLOWED IN PART (Counts

II, III, VI, VII, X) and DENIED IN PART (Counts I, IV, and V).

FACTUAL BACKGROUND

The Complaint alleges the following facts.

I. Parties

While Jane had a chronological age of sixteen at the time

of the alleged assault on February 5, 2018, she had the mental

capacity of a six-year-old child. Jane was born with Phelan-

McDermid Syndrome, a rare genetic condition that causes

significant cognitive impairments. Due to her condition, Jane’s

Individualized Education Plan (“IEP”) required that she have a

one-to-one assistant for the entire school day at Dennis-

Yarmouth.

Defendant Abir Zaineh (“Zaineh”) was a lead teacher in the

Wave Program in the Dennis-Yarmouth Regional School District.

Defendant Susan Hardigan (“Hardigan”) was a one-to-one assistant

in the Wave Program.

II. Dennis-Yarmouth Policies for One-to-One Assistants

Jane’s IEP requires that she would be accompanied by her

one-to-one assistant at all times throughout the school day.

Staff at Dennis-Yarmouth further assured Jane’s parents that

Jane would not be left unsupervised at any time to ensure her

safety and assist her when she needed help. Jane was unable to

perform her basic bathroom functions consistently and with

proper hygiene, so her assistant was always required to

accompany her into the restroom.

The Does allege that “[d]espite these requirements, when a

1 to 1 assistant was absent, the administration often failed to

provide a substitute assistant, so there would not be enough

staff to supervise all Wave program students.” Dkt. 1 ¶ 32.

Furthermore, Wave staff members were entitled to a thirty-minute

lunch period where they were, by contract, duty free. Dennis-

Yarmouth did not account for this break when it scheduled and

assigned staff as one-to-one assistants; there was no guarantee

that students requiring one-to-one assistants would be

supervised during their assistants’ lunch breaks. Wave staff

members ate their lunches at a table next to the Wave program

students, but they were off the clock during their lunch period.

Defendants were all aware that this approach created gaps

of unsupervised time and the risk that a child was not receiving

one-to-one assistance. In the months leading up to the bathroom

incident, Zaineh expressed concerns about the lack of

substitutes. On January 26, 2018, Zaineh emailed the Assistant

Principal, Mary O’Connor, to “discuss[] the bathroom and hygiene

assistance that approximately six of the Wave program students

required and explained that all of the 1 to 1 assistants were

necessary.” Dkt. 1 ¶ 35. Plaintiffs allege that “[d]espite this

notice to the administration and acknowledgement by Zaineh of

the necessity of 1 to 1 assistants, practices at Dennis-Yarmouth

did not change.” Id. ¶ 36.

III. The Assault

On February 5, 2018, Jane and Christopher Coe, another

student who required one-to-one supervision because of his Down

Syndrome, were eating lunch in the cafeteria. Coe’s one-to-one

assistant was absent that day, but Dennis-Yarmouth did not

provide a substitute. At 10:53 AM, Jane went to the staff table,

which included Hardigan and Zaineh, to ask to use the restroom.

Hardigan and Zaineh sent Jane to the restroom alone. Jane

entered the girls’ bathroom at 10:54 AM. Also at 10:54 AM, Coe

asked the aids at the staff table if he could go to the water

fountain. The teachers sent Coe to the water fountain alone. Coe

then approached the girls’ bathroom and waited outside. When

Jane left the girls’ bathroom, Coe asked Jane to go with him

into the boys’ bathroom. Jane and Coe entered the boys’ bathroom

at 10:57 AM.

Coe then removed all of Jane’s clothing. Jane stated that

Coe was not being nice to her, Coe “touched her front butt,” and

they hugged while they were naked. Id. ¶¶ 55-56.

By this point, fifteen minutes had passed since Jane and

Coe left the cafeteria. No one went looking for them until five

minutes after lunch ended. At 11:09 AM, Hardigan looked for Jane

in the girls’ bathroom. At 11:10 AM, another assistant alerted

Hardigan that Coe and Jane were in the boys’ bathroom. When

Hardigan entered the bathroom, Jane and Coe were naked in the

large bathroom stall. Jane said they had been wrestling. Ten

different male students entered the bathroom while Jane and Coe

were inside. Two of those students were later criminally charged

for secretly recording Jane and Coe in the bathroom.

As a result of this incident, Jane withdrew from Dennis-

Yarmouth. Dennis-Yarmouth’s Title IX Coordinator, Maria Lopes,

later wrote that she did not conduct an investigation into the

assault because “the February 5, 2018, encounter between [Jane]

and the other student had been viewed as a mutual two-sided

interaction.” Id. ¶ 111.

MOTION TO DISMISS STANDARD

A complaint must “state a claim to relief that is plausible

on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007)). At the motion to dismiss stage, “we take the

nonconclusory, nonspeculative facts contained in the complaint

as true and draw all reasonable inferences from those facts in

[Doe’s] favor.” Doe v. Pawtucket Sch. Dep’t, 969 F.3d 1, 5 (1st

Cir. 2020) (quoting Hamann v. Carpenter, 937 F.3d 86, 88 (1st

Cir. 2019)).

DISCUSSION

I. Count I: Negligence under Mass. Gen. Laws ch. 258, § 2

The Does bring a negligence claim against Dennis-Yarmouth

under the Massachusetts Tort Claims Act (“MTCA”). Under the

MTCA, “[p]ublic employers shall be liable for injury . . .

caused by the negligent or wrongful act or omission of any

public employee while acting within the scope of his office or

employment.” Mass. Gen. Laws ch. 258, § 2. The Does allege that

Dennis-Yarmouth breached its duty of care to Jane “by

negligently failing to train, supervise, and otherwise failing

to make scheduling and staffing decisions to ensure that all

students requiring 1 to 1 supervision received such supervision

for 100% of the school day.” Dkt. 1 ¶ 74.

Dennis-Yarmouth maintains that Massachusetts General Laws

ch. 258, § 10(j) bars the Does’ claims because “[w]hen the

allegations are that the municipality failed to act, or failed

to appropriately act, sovereign immunity continues to apply.”

Dkt. 22 at 5. Section 10(j) provides that the MTCA shall not

apply to

any claim based on an act or failure to act to prevent

or diminish the harmful consequences of a condition or

situation, including the violent or tortious conduct of

a third person, which is not originally caused by the

public employer or any other person acting on behalf of

the public employer.

Mass. Gen. Laws ch. 258, § 10(j). However, an exception to the

exclusion found in section 10(j)(1) allows a plaintiff to

recover on “any claim based upon explicit and specific

assurances of safety or assistance, beyond general

representations that investigation or assistance will be or has

been undertaken . . . provided that the injury resulted in part

from reliance on those assurances.” Mass. Gen. Laws ch. 258, §

10(j)(1).

The Does adequately plead that their claim falls under this

statutory exception to § 10(j).1 They allege that “[s]taff at

DYRHS made verbal and written assurances to Jane’s parents —

related to Jane’s Individualized Education Plan — that Jane

would have a 1 to 1 assistant for the entire school day to

ensure her safety and assist with daily living skills.” Dkt. 1

¶ 24. This assurance was explicit in that staff members

verbalized the assurance to Jane’s parents and put it down in

writing. It was specific because it clearly defined what actions

they would take and for how long – Jane would not be left

unsupervised at any point, per her IEP, for the entirety of the

school day. See Suboh v. City of Revere, Mass., 141 F. Supp. 2d

124, 134 (D. Mass. 2001) (holding that the verbal assurance

1 Because the claim plainly falls under this statutory exception,

the Court need not address the closer question of whether

Dennis-Yarmouth was the original cause of the harm by failing to

staff adequately.

plaintiff received from police officers that her daughter would

be safely protected in state custody was considered an explicit

and specific assurance of assistance under § 10(j)(1) because

the course of action had a fixed duration and was unambiguous);

Thomas v. Town of Chelmsford, 267 F. Supp. 3d 279, 313 (D. Mass.

2017) (quoting Compl. ¶ 100) (holding that a superintendent’s

statement that “[w]e have teachers in the hallways that monitor

things and he will be fine” is an explicit and specific

assurance of safety under § 10(j)(1)).

A. Discretionary Function Exclusion

Dennis-Yarmouth also contends that the school retains

immunity pursuant to the discretionary function exclusion.

Section 10(b) retains immunity for “any claim based upon the

exercise or performance or the failure to exercise or perform a

discretionary function or duty of the part of a public employer

or public employee, acting within the scope of his office or

employment, whether or not the discretion involved is abused.”

Mass. Gen. Laws ch. 258 § 10(b). This exclusion is designed to

immunize policymaking or planning, as opposed to operational

actions. See Harry Stoller & Co. v. City of Lowell, 587 N.E.2d

780, 783 (Mass. 1992) (quoting Whitney v. Worchester, 366 N.E.2d

1210, 1216 (Mass. 1977)) (distinguishing “between those

functions that ‘rest on the exercise of judgment and discretion

and represent planning and policymaking for which there would be

governmental immunity and those functions which involve the

implementation and execution of such governmental policy or

planning for which there would be no governmental immunity’”)

(cleaned up). See also Doe v. Bradshaw, 203 F. Supp. 3d 168, 187

(D. Mass. 2016) (quoting Greenwood v. Town of Easton, 828 N.E.

2d 945, 948-49 (Mass. 2005)) (“Massachusetts courts have

instructed that the ‘discretionary function exception is narrow’

and draw a distinction between discretionary decisions that make

policy and those that implement it.”).

Dennis-Yarmouth did not have discretion in the execution

and implementation of Jane’s IEP: her IEP set out that she would

have one-to-one assistance at all times throughout the school

day. Carrying out that agreement was therefore an operational

action. See Suboh, 141 F. Supp. 2d at 133 (quoting Harry

Stoller & Co., 587 N.E.2d at 782) (“[I]f the governmental actor

had no discretion because a course of action was prescribed by a

statute, regulation, or established agency practice, a

discretionary function exception to governmental liability has

no role to play in deciding the case.”).

Accordingly, the Court denies the motion to dismiss Count

I.

II. Count II: 42 U.S.C. § 1983 through Due Process Clause

The Does claim a deprivation of Jane’s substantive due

process “right to be free from violations of bodily integrity.”

Dkt. 1 ¶ 88. To establish a substantive due process claim, a

plaintiff must show that some government conduct caused a

deprivation of her protected interest in life, liberty, or

property. See Rivera v. Rhode Island, 402 F.3d 27, 33-34 (1st

Cir. 2005). Jane was harmed by another student, and therefore

the claimed government involvement is one step removed: the Does

allege that Dennis-Yarmouth had an affirmative duty to protect

Jane and failed to do so.

As a general rule, “a State’s failure to protect an

individual against private violence simply does not constitute a

violation of the Due Process Clause.” DeShaney v. Winnebago

Cty. Dep’t. of Soc. Servs., 489 U.S. 189, 197 (1989). “[T]he

purpose of the Due Process Clause is to protect the people from

the state, not to ensure that the state protects them from each

other.” Rivera, 402 F.3d at 34.

1. Special Relationship

However, the Supreme Court has also recognized an exception

to this general rule, under which a state has a constitutional

duty to protect an individual against private violence when “the

State takes a person into its custody and holds him there

against his will” and “by the affirmative exercise of [the

state’s] power so restrains an individual’s liberty that it

renders him unable to care for himself.” DeShaney, 489 U.S. at

199-200. See also Rivera, 402 F.3d at 34 (describing special

relationship as forming “when an individual is incarcerated or

is involuntarily committed to the custody of the state”).

The Does maintain that Jane’s “condition was such that she

was not even allowed to perform such a basic human task as to go

to the bathroom by herself,” and “[t]his is a level of control

which denies [Jane and Coe] the right to ‘provide for [their]

basic human needs.’” Dkt. 30 at 14. But here the Does are

describing a limitation on Jane’s ability to care for herself

caused by her mental disability, not the power that the school

has exerted over her.

The First Circuit has yet to find a special relationship

between a school and a student, though it has cautioned that

“[n]evertheless, we are loath to conclude now and forever that

inaction by a school toward a pupil could never give rise to a

due process violation.” Hasenfus v. LaJeunesse, 175 F.3d 68, 72

(1st Cir. 1999) (citing Vernonia Sch. Dist. 47J v. Acton, 515

U.S. 646, 655 (1995)) (“[W]e do not, of course, suggest that

public schools as a general matter have such a degree of control

over children as to give rise to a constitutional ‘duty to

protect.’”). The First Circuit has noted that there may be

“narrow circumstances” where there is a due process violation

for a specific duty, such as when harm has befallen a student,

the teacher knows of the harm, and the teacher does nothing.

See Hasenfus, 175 F.3d at 72 (offering as an example “[i]f Jamie

had suffered a heart attack in the classroom, and the teacher

knew of her peril, could the teacher merely leave her there to

die without summoning help?”).

The Does’ claim falls outside of these narrow

circumstances. While they argue that the assault would not have

happened but for the policy of no supervision during lunchtime,

the school did not have knowledge that the assault was occurring

until it had already happened.

2. State-Created Danger

The First Circuit has also recently recognized the “state-

created danger” theory, which provides another exception to the

general rule. See Irish v. Fowler, 979 F.3d 65, 67 (2020)

(“Under the state-created danger substantive due process

doctrine, [a defendant] may be held liable for failing to

protect plaintiffs from danger created or enhanced by their

affirmative acts.”). Plaintiffs argue that Dennis-Yarmouth

created a danger by “creat[ing] a policy in which there was a

30-minute gap every day during which the persons assigned to

protect [students needing constant supervision] were off duty.”

Dkt. 30 at 14. Students that were not capable of taking care of

basic hygiene skills were left to fend for themselves during

this break.

Whether or not the school created a danger, “there is a

further and onerous requirement that the plaintiff must meet in

order to prove a constitutional violation: the state actions

must shock the conscience of the court.” Rivera, 402 F.3d at

35. “The burden to show state conduct that shocks the

conscience is extremely high, requiring stunning evidence of

arbitrariness and caprice that extends beyond mere violations of

state law, even violations resulting from bad faith to something

more egregious and more extreme.” Melendez-Garcia v. Sanchez,

629 F.3d 25, 37 (1st Cir. 2010) (cleaned up); see also Rivera,

402 F.3d at 36 (quoting Cty. of Sacramento v. Lewis, 523 U.S.

833, 849 (1998)) (“[C]onduct intended to injure in some way

unjustifiable by any government interest is the sort of official

action most likely to rise to the conscience-shocking level.”).

Deliberately indifferent behavior may suffice where the state

actor had an “opportunity to reflect and make reasoned and

rational decisions,” but the plaintiff “must, at a bare minimum,

demonstrate that [the defendant] actually knew of a substantial

risk of serious harm . . . and disregarded that risk.” Irish,

979 F.3d at 74 (quoting Coyne v. Cronin, 386 F.3d 280, 288 (1st

Cir. 2004).

Here the Does’ claim fails. Dennis-Yarmouth’s failure to

sufficiently implement Jane Doe’s IEP and provide constant one-

to-one supervision cannot be described as conduct intended to

harm her. Taking as true that Dennis-Yarmouth was on notice

that there was inadequate staffing and supervision and therefore

had an opportunity to revise its policy, the Court concludes

that the Does have not shown that Dennis-Yarmouth actually knew

Jane was at a substantial risk of serious harm if she was left

unattended, let alone that the serious harm would be a sexual

assault. Dennis-Yarmouth’s motion to dismiss Count II is

therefore allowed.

III. Count III: Section 504 of the Rehabilitation Act, 29 U.S.C.

794

The Does allege that Dennis-Yarmouth violated Section 504

of the Rehabilitation Act by “refusing to provide students who

needed 1 to 1 supervision with assistance for 100% of the school

day.” Dkt. 1 ¶ 96. They assert that Jane suffered physical

injury and severe emotional distress as a result, and they seek

money damages.

Section 504 “cover[s] both adults and children with

disabilities, in both public schools and other settings.” Fry v.

Napoleon Cmty. Schs., 137 S. Ct. 743, 749 (2017). It “requires

that a public entity make ‘reasonable modifications’ to existing

practices, including by offering support services, to

‘accommodate’ disabled persons.” Doucette v. Georgetown Pub.

Sch., 936 F.3d 16, 23 (1st Cir. 2019) (quoting Alexander v.

Choate, 469 U.S. 287, 299–300 (1985)). Importantly, Section 504

is subject to the exhaustion requirement laid out in the

Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C.

§ 1415(l). Section 1415(l) provides:

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 [the IDEA], the [IDEA’s administrative

procedures] shall be exhausted to the same extent as

would be required had the action been brought under [the

IDEA].

20 U.S.C. § 1415(l). Dennis-Yarmouth contends that the Section

504 claim should be dismissed on two grounds: first, the Does

have failed to exhaust their administrative remedies, and

second, the Does have failed to allege disability-based

discrimination.

A. The IDEA’s Exhaustion Requirement

The IDEA ensures that children with disabilities “have

available to them a free appropriate public education,”

(“FAPE”). 20 U.S.C. § 1400(d)(1)(A). A FAPE includes “both

‘instruction’ tailored to meet a child’s ‘unique needs’ and

sufficient ‘supportive services’ to permit the child to benefit

from that instruction.” Fry, 137 S. Ct. at 748 (quoting 20

U.S.C. § 1401(9), (26), (29)). “A disabled child’s IEP – her

written education plan – is the ‘primary vehicle’ for providing

the mandated FAPE.” Doucette, 936 F.3d at 22 (quoting Fry, 137

S. Ct. at 749). A parent may challenge the adequacy of the IEP

or its implementation through the administrative process set

forth in the IDEA. See 20 U.S.C. § 1415 (requiring a

preliminary meeting with the child’s IEP team and then a due

process hearing if the issue is not resolved). While IDEA

exhaustion is “the general rule, it is not absolute.” Doucette,

936 F.3d at 22 (internal citations omitted). “Fundamentally,

rules requiring administrative exhaustion are not meant to be

enforced in a manner that would require ‘empty formalit[ies].’”

Id.

The Supreme Court recently addressed the scope of the

exhaustion requirement, holding that IDEA exhaustion is only

required where the “substance, or gravamen, of the plaintiff’s

complaint” seeks “relief for the denial of a FAPE.” Fry, 137 S.

Ct. at 752. The statutory language compels exhaustion when a

plaintiff seeks “relief” that is “available” under the IDEA.

Id. at 753. “Under Fry, if a school ‘refus[ed] to make an

accommodation’ for a disabled child, ‘injuring [the child] in

ways unrelated to a FAPE,’ a plaintiff ‘seeking redress for

those other harms . . . is not subject to § 1415(l)’s exhaustion

rule.” Doucette, 936 F.3d at 23 (quoting Fry, 137 S. Ct. at

754-55).

The Supreme Court provided clues to help courts to

determine whether the gravamen of the complaint is the denial of

a FAPE. The first clue asks two 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?” And second, “could an adult at the school . . .

have pressed essentially the same grievance?” Fry, 137 S. Ct.

at 756. If both answers are “No,” the complaint “probably does

concern a FAPE.” Id. at 756. If the answer is “Yes” to both,

FAPE is likely not the gravamen of the complaint. Id. The

Court then explained that the second clue is the procedural

history of the case: did the plaintiff first attempt to use the

IDEA’s formal hearing and procedure? See id. at 757. If so,

this “provide[s] strong evidence that the substance of a

plaintiff’s claim concerns the denial of a FAPE.” Id.

In the sole First Circuit case to consider the issue after

Fry, the First Circuit found it was “simple discrimination,

irrespective of the IDEA’s FAPE obligation” when a child was

denied access to his seizure-alert service dog and as a result

suffered seizures. Doucette, 936 F.3d at 24. “[T]he section

504 claim, grounded in the refusal of the school district to

reasonably accommodate B.D.’s use of the service dog . . .

involves the denial of non-discriminatory access to a public

institution, irrespective of the school district’s FAPE

obligation to provide a particular education program for B.D.”

Id. at 24-25.

Dennis-Yarmouth frames the Section 504 claim as

“intrinsically linked” to Jane’s IEP, calling the facts “unique

to a disabled student in an educational setting.” Dkt. 22 at

15. The Does respond that the gravamen of the claim is not the

denial of the free appropriate public education, but rather

negligent supervision that led to Jane’s assault. They further

argue that the Fry clues point to “Yes”: a child sexually

assaulted and recorded in a public theater would have a claim,

as would a teacher sexually assaulted and recorded in a school.

Dkt. 30 at 16.

The “clues” are not particularly helpful here. In the

circumstances of this case, a child would likely not be able to

argue that she was negligently supervised by the theater if she

were sexually assaulted in a theater bathroom; neither would an

adult assaulted in a school bathroom be able to make a claim of

negligent supervision. Therefore, the answers to both

hypotheticals would be “No.” Still, the other “clue” helps the

Does since they did not seek an administrative remedy. What do

you do when the clues point in the opposite directions? See

Fry, 137 S. Ct. at 759 (Alito, J., concurring) (cautioning that

the clues may be “misleading”); J.S., III by & through J.S. Jr.

v. Houston Cty. Bd. of Educ., 877 F.3d 979, 986 (11th Cir. 2017)

(“The cause of action here does not fit neatly into Fry’s

hypotheticals.”); Sophie G. by & through Kelly G. v. Wilson Cty.

Sch., 742 F. App’x 73, 79 (6th Cir. 2018) (“Fry’s clues will not

always assist courts.”).

The Supreme Court teaches that the focus should be on the

gravamen of the case, which is not the denial of a FAPE, but

rather a sexual assault caused by negligent supervision, albeit

in an educational setting. The failure to accommodate Jane’s

disability by providing her full-day supervision violated the

IEP, but it also injured her in ways unrelated to the FAPE.

Because Jane is “seeking redress for those other harms,” she is

not subject to § 1415(l)’s exhaustion rule. Fry, 137 S. Ct. at

754-55.

Moreover, exhaustion is not required if it would be

“futile.” Doucette, 936 F.3d at 22. “Futility applies when (1)

the plaintiff's injuries are not redressable through the

administrative process, and (2) the administrative process would

provide negligible benefit to the adjudicating court.” Id. at

31 (internal citation omitted). Here, the Does are alleging

that the school failed to follow the IEP, not that the IEP was

faulty. Exhaustion would be pointless because the sexual

assault has already occurred, Jane is no longer in the school,

and money damages for the harm caused by the sexual assault are

the remedy sought to make her whole.

Most courts addressing claims of sexual assault or

harassment of a disabled student who is on an IEP have not

required exhaustion. See Doe v. Dall. Indep. Sch. Dist., 941

F.3d 224, 228 (5th Cir. 2019) (agreeing with plaintiff that

exhaustion did not apply to her Title IX claim because “though

the cause of action requires proving the denial of an

educational benefit, the allegations are about sexual

harassment, not special education opportunities”); Wellman v.

Butler Area Sch. Dist., 877 F.3d 125, 132–33 (3d Cir. 2017)

(“[I]f a student who was challenging the sufficiency of her IEP

also happened to be physically assaulted on the bus going to

school, one could envision the plaintiff bringing a single

complaint with different claims arising from her school

experience, one of which seeks relief for physical injuries

sustained while on the school bus and which has nothing to do

with her access to a FAPE and IDEA relief.”); FH ex rel. Hall v.

Memphis City Schs., 764 F.3d 638, 644 (6th Cir. 2014) (not

requiring exhaustion where the disabled student was sexually

abused by his aides, his injuries were noneducational in nature

and could not be remedied by an administrative process); Roe v.

Lincoln-Sudbury Reg’l Sch. Dist., Civil Action No. 18-10792-FDS,

2021 U.S. Dist. LEXIS 57206, at *92-95 (D. Mass. Mar. 24, 2021)

(finding IDEA exhaustion unnecessary where student brought a

§ 1983 claim based on emotional distress and trauma she suffered

from sexual harassment) (citing E.T. ex rel. Doe v. Bureau of

Special Educ. Appeals of the Div. of Admin. L. Appeals, 91 F.

Supp. 3d 38, 50 (D. Mass. 2015) (“To the extent that plaintiffs

seek damages for humiliation, pain and suffering, and damage to

emotional well-being separate from education-related issues,

those claims are independent claims that do not arise under the

IDEA”) (cleaned up)); McCann on behalf of J.M. v. York Sch.

Dep’t, 365 F. Supp. 3d 132, 144-45 (D. Me. 2019) (determining

that exhaustion was not required where plaintiffs alleged that

the school failed to respond to reports of harassment because of

the child’s disability, leading to his assault); Raymond v. Me.

Sch. Admin. Dist. 6, No. 2:18-CV-00379-JAW, 2019 WL 2110498, at

*11 (D. Me. May 14, 2019) (“Plaintiffs’ allegation that

Defendants failed to follow J.R.’s IEP by providing the

requisite level of supervision and thus, allowing B.L. to follow

J.R. into the restroom unattended, partially overlap with the

IDEA . . . [b]ut that overlap does not preclude the Plaintiffs

from seeking relief under § 504.”) (internal citation omitted).

Consistent with this caselaw, I hold that exhaustion is not

required.

B. Disability-Based Discrimination

Dennis-Yarmouth argues in the alternative that the Does’

Section 504 claim must fail due to the absence of allegations of

discrimination. The district argues that

the Complaint fails to plead facts sufficient to state

a claim based on discrimination by failing to plead that

the District effected any policy that wrought

discrimination on Jane Doe, that it was motivated by any

disability-based discriminatory animus, or that it had

any notice that disabled students were not receiving the

accommodations to which they were entitled.

Dkt. 22 at 17. The Complaint does, however, allege that Dennis-

Yarmouth discriminated against the disabled students in the Wave

program as a whole, by failing to provide reasonable

accommodation to ensure staffing to cover when an aide was

absent, or when another aid was on break. The Complaint alleges

that the Assistant Principal had notice that all one-to-one

assistants were needed, Coe’s substitute was absent on the day

of the assault and was not replaced, and the students were

provided no supervision during the contractual thirty-minute

break. “[R]efusal to make an accommodation” is the type of harm

that Section 504 protects. Fry, 137 S. Ct. at 754. The Does

have alleged a plausible claim that Dennis-Yarmouth

discriminated against Wave students, including Jane, to survive

this stage.

IV. Count IV: 20 U.S.C. §§ 1681-1686 (Title IX)

Title IX of the Education Amendments of 1972 provides, “No

person in the United States shall, on the basis of sex, be

excluded from participation in, be denied the benefits of, or be

subjected to discrimination under any education program or

activity receiving Federal financial assistance.” 20 U.S.C.

§ 1681(a). A student can bring an action in damages against a

school district for a violation of Title IX based upon student-

on-student sexual harassment if the school district receives

federal funding. Davis Next Friend LaShonda D. v. Monroe County

Bd. of Educ., 526 U.S. 629, 646-47 (1999). In order to state a

claim, the student must show that the funding recipient had

actual knowledge of and was deliberately indifferent to sexual

harassment that was “so severe, pervasive, and objectively

offensive” that it “deprive[d] the victim[] of access to the

educational opportunities or benefits provided by the school.”

Id. at 650. A single incident of peer harassment may be

actionable under Title IX “if that incident were vile enough and

the institution’s response, after learning of it, unreasonable

enough to have the combined systemic effect of denying access to

a scholastic program or activity.” Fitzgerald v. Barnstable

Sch. Comm., 504 F.3d 165, 172-73 (1st Cir. 2007), rev’d on other

grounds, 555 U.S. 246 (2009) (citing Vance v. Spencer Cty. Pub.

Sch. Dist., 231 F.3d 253, 259 (6th Cir. 2000)) (noting that “one

incident can satisfy a claim”). However, a claim that a school

could have done more in hindsight is not enough. Porto v. Town

of Tewksbury, 488 F.3d 67, 73 (1st Cir. 2007).

A. Time Periods in Question

1. Before the Incident

Plaintiffs argue that Dennis-Yarmouth was deliberately

indifferent to sexual harassment against Jane prior to the

incident in February 2018. While the Does allege that Dennis-

Yarmouth had actual notice that there were not enough staff

members to properly supervise children in the special needs

program and therefore there was a risk that the students would

be unsupervised at certain points of the day, absent from the

Complaint is any allegation that Dennis-Yarmouth was on notice

that sexual harassment was a threat to these students during

that unsupervised time. The Does state that Dennis-Yarmouth’s

policy of relieving employees during their lunch break left Jane

and Coe unsupervised, and “[b]ut for this indifference,

plaintiff Jane would not have been sexually assaulted.” Dkt. 30

at 21. The Does are still unable to plausibly claim that

Dennis-Yarmouth had actual knowledge that sexual harassment

could occur or that the decision to allow unsupervised time was

deliberately indifferent as opposed to negligent. See Porto,

488 F.3d at 74 (holding that plaintiff did not prove deliberate

indifference when defendant teacher allowed a disabled student

to go to the bathroom unsupervised because he did not know there

was a high degree of risk that sexual harassment would occur).

2. After the Incident

With respect to the time period after the alleged sexual

assault, plaintiffs allege that the school had actual knowledge

of harassment that was severe, pervasive and objectively

offensive, and its failure to investigate amounted to deliberate

indifference. Plaintiffs allege that, at a minimum, Dennis-

Yarmouth’s Title IX Coordinator, Maria Lopes, was aware of the

alleged assault, as were the two aides who discovered Jane and

Coe in the boys’ bathroom. Her decision to “not conduct a Title

IX investigation into the assault . . . because [she believed]

‘the February 5, 2018, encounter between Jane and the other

student had been viewed as a mutual two-sided interaction” could

plausibly be considered deliberately indifferent because it

involved two mentally disabled students. Dkt. 1 ¶ 15.

Dennis-Yarmouth acknowledges that the failure to take

reasonable steps after being notified of a stand-alone incident

of harassment could be actionable under Title IX. See Dkt. 22

at 13. Given Jane’s disability and reduced mental capacity,

Dennis-Yarmouth’s alleged determination that the sexual activity

between Jane and Coe was “mutual” illustrates an “investigation

[that] was so deficient as to be unreasonable.” Doe v. Emerson

Coll., 271 F. Supp. 3d 337, 355 (D. Mass. 2017); see Pawtucket

Sch. Dep’t, 969 F.3d at 9 (“[Thirteen year old] Doe may be able

to make the case that once [the principal] learned of the sexual

encounter with [a seventeen year old], school officials not

indifferent to the abuse would have investigated or recognized

Doe’s apparent vulnerability to sexual assault and made at least

some attempt to protect her.”).

Finally, Dennis-Yarmouth argues that the school’s response

could not be considered unreasonable because Jane’s parents

pulled her from the school after the incident. The Complaint

does not specify how much time passed between when the incident

took place and when Jane withdrew from school. Title IX

liability can arise after a student withdraws from school. See

Fitzgerald, 504 F.3d 172 (citing Williams v. Bd. of Regents, 477

F.3d at 1282, 1297 (11th Cir. 2007)).

V. Count V, VI, and VII: Mass. Gen. Laws ch. 93 § 103

The Does next bring a claim under the Massachusetts Equal

Rights Act (“MERA”) against Dennis-Yarmouth (Count V), Zaineh

(Count VI), and Hardigan (Count VII). MERA protects the right

to

make and enforce contracts, to inherit, purchase, to

lease, sell, hold and convey real and personal property,

to sue, be parties, give evidence, and to the full and

equal benefit of all laws and proceedings for the

security of persons and property, and shall be subject

to like punishment, pains, penalties, taxes, licenses,

and exactions of every kind, and to no other.

Mass. Gen. Laws ch. 93, § 102(a). The Does argue that Jane’s

IEP should be understood as a contract, and they aver that

Defendants breached the terms of the IEP when they failed to

provide supervision.

Most courts have rejected the argument that an IEP

qualifies as a contract. See L.J. by N.N.J. v. Sch. Bd. of

Broward Cty., 927 F.3d 1203, 1212 (11th Cir. 2019) (“Setting out

a standard under which even a de minimis failure to implement a

particular provision of an IEP would be actionable would also be

inconsistent with the recognition that an IEP is a plan, not a

contract.”) (citing 20 U.S.C. § 1414(d)(1)(A)(i) (defining an

IEP as “a written statement”)); Van Duyn ex rel. Van Duyn v.

Baker Sch. Dist. 5J, 502 F.3d 811, 820 (9th Cir. 2007) (“[T]he

IEP is entirely a federal statutory creation, and courts have

rejected efforts to frame challenges to IEPs as breach-of-

contract claims.”); Ms. K v. City of S. Portland, 407 F. Supp.

2d 290, 301 (D. Me. 2006) (agreeing with defendants that “an IEP

is not a legally binding contract”); SH v. Campbell Cty. Sch.

Dist., 409 P.3d 1231, 1235 (Wyo. 2018) (same). Cf. Easter Seals

N.H., Inc. v. Tantasqua Reg'l Sch. Dist., No. WOCV201001011D,

2011 WL 4424067, at *4 (Mass. Super. Ct. July 20, 2011)

(referring to an IEP as a “contract implied-in-law” which “is

not really a contract, but a legal obligation closely akin to a

duty to make restitution”) (internal quotation marks omitted).

Because plaintiffs fail to identify a contract between

themselves, the school, Zaineh, or Hardigan, this claim is

dismissed.

VI. Count VIII, IX: Intentional or Reckless Infliction of

Emotional Distress

The Does bring claims for Intentional or Reckless

Infliction of Emotional Distress (“IIED”) against Zaineh and

Hardigan (Count VIII and IX, respectively). “The standard for

making a claim of intentional infliction of emotional distress

is very high.” Doyle v. Hasbro, Inc., 103 F.3d 186, 195 (1st

Cir. 1996). The claim requires “(1) that the defendant intended

to cause, or should have known that his conduct would cause,

emotional distress; (2) that the defendant’s conduct was extreme

and outrageous; (3) that the defendant’s conduct caused the

plaintiff’s distress; and (4) that the plaintiff suffered severe

distress.” Doe v. D’Agostino, 367 F. Supp. 2d 157, 173 (D.

Mass. 2005) (quoting Sena v. Commonwealth, 629 N.E.2d 986, 994

(Mass. 1994)). Extreme and outrageous conduct is conduct that

is “beyond all possible bounds of decency” and “utterly

intolerable in a civilized society.” Doyle, 103 F.3d at 195

(quoting Agis v. Howard Johnson Co., 355 N.E.2d 315, 319 (Mass.

1976)).

The Does have not alleged sufficient facts to state a

plausible claim that the individual defendants intended that

their conduct would cause emotional distress to Jane or that

their conduct was beyond all bounds of human decency. While the

sexual assault was tragic, at worst the individual defendants

were negligent for failing to supervise for 15 minutes. This

claim is dismissed as to both defendants.

VII. Count X: Loss of Consortium

Massachusetts provides a cause of action to parents for

loss of consortium with their child where the child has been

“seriously injured” by a tortfeasor. Mass. Gen. Laws ch. 231,

§ 85X. The Does bring a claim under this statute against all

three defendants. “Consortium claims are derivative in nature,

so [they] require[] an underlying tortious act.” Thomas, 267 F.

Supp. 3d at 315.

A. Zaineh and Hardigan’s Motion

Plaintiffs must assert an underlying tort claim against

Defendants Zaineh and Hardigan to succeed. Plaintiffs have

failed to do so, as their IIED claims are dismissed.

Accordingly, Count X is dismissed as against Zaineh and

Hardigan.

B. Dennis-Yarmouth’s Motion

Dennis-Yarmouth seeks dismissal on a different ground. The

district argues that the consortium statute only contemplates

recovery from a “person,” citing Thomas, 267 F. Supp. 3d at 315.

In Thomas, this Court held that Section 85X does not allow

recovery from municipal defendants. 267 F. Supp. 3d at 315

(citing Harrington v. Attleboro, 172 F. Supp. 3d 337, 354-55 (D.

Mass. 2016)) (“Though Massachusetts appellate courts have not

yet addressed whether a town is a ‘person’ under the loss of

consortium statute, they have decided that other statutes using

the word ‘person’ do not include governmental entities.”).

The Does urge the Court to reconsider, pointing to the

legislative history of the consortium statute’s enactment. The

Does aver that the statute was enacted in response to a case in

which a parent was not able to recover for loss of consortium

due to injuries sustained by a governmental entity, and

therefore this Court should draw the inference “that the

Legislature knew it was creating a cause of action which could

be asserted against governmental entities.” Dkt. 30 at 30

(citing Monahan v. Town of Methuen, 558 N.E.2d 951, 956 (Mass.

1990)) (“General Laws c. 231, § 85X, which created a cause of

action for parents’ loss of consortium of their child, was

enacted in response to this court’s decision in Norman v.

Massachusetts Bay Transp. Auth., 403 Mass. 303, 529 N.E.2d 139

(1988).”). Monahan does not address the issue of whether a town

could be liable under § 85X. In the absence of any contrary

guidance from the state appellate courts, I again determine that

the statutory definition of “person” precludes recovery against

a town. Bradshaw, 2013 WL 5236110, at *14 (“The definitions in

Mass. Gen. Laws ch. 4, § 7 apply to all Massachusetts statutes.

In that section, a ‘person’ is defined to include ‘corporations,

societies, associations and partnerships,’ but makes no mention

of municipalities or government entities.”). Count X is also

dismissed as to Dennis-Yarmouth.

VIII. Final Judgment Against Individual Defendants

The Court may direct entry of a final judgment as to some

claims or parties “only if the court expressly determines that

there is no just reason for delay.” Fed. R. Civ. P. 54(b).

Before certifying judgment under Rule 54(b), the Court must

“determine[] that (i) the ruling in question is final and (ii)

there is no persuasive reason for delay.” Gonzalez Figueroa v.

J.C. Penney P.R., Inc., 568 F.3d 313, 317 (1st Cir. 2009).

Because all the claims against the individual defendants are

dismissed and there is no just reason for delay, the Court

further ALLOWS the individual defendants’ motions for the entry

of a separate and final judgment pursuant to Federal Rule of

Civil Procedure 54(b).

ORDER

For the reasons stated above, the Court ALLOWS the motions

to dismiss for Zaineh and Hardigan (Dkt. 16 and 19,

respectively) and for entry of a separate and final judgment

pursuant to Fed. R. Civ. P. 54(b). As to Dennis-Yarmouth, the

Court ALLOWS IN PART and DENIES IN PART the district’s motion to

dismiss (Dkt. 21). The surviving claims against Dennis-Yarmouth

are Count I (negligence under MTCA), Count IV (Title IX), and

Count V (Rehabilitation Act).

SO ORDERED.

/s/______PATTI B. SARIS___

Hon. Patti B. Saris

United States District Judge