Jane Doe et al v. Bradshaw et al

Filing 63

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered granting in part and denying in part 46 Motion to Dismiss for Failure to State a Claim; granting 48 Motion to Dismiss for Failure to State a Claim,specifically: The motions to dismiss Cou nts I, II, VIII, IX, and XVI are DENIED; the motions to dismiss Counts VII, XIII, and XV are GRANTED; the motions to dismiss Counts IV and V are GRANTED to the extent liability is premised on failure to protect against peer harassment, but otherwise DENIED; the motion to dismiss Count X is GRANTED to the extent liability is premised on failure to appoint a Title IX coordinator or to protect against peer harassment, but the motion is otherwise DENIED; the employee-defendants motion to dismiss Counts XII and XIV is GRANTED; the Towns motion to dismiss Counts XII and XIV is DENIED to the extent liability is premised upon the decision to retain Weixler following reports of sexual misconduct, but is otherwise GRANTED. (Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JOHN AND JANE DOE, individually and
on behalf of their minor child, JILL
DOE,

)
)
)
)
Plaintiffs,
)
)
v.
)
)
ANN BRADSHAW, STEPHEN WEIXLER, ALAN
)
WINROW, JANE DAY, PAT FARRELL, CARLA
)
THOMAS, PETER SHEA, JOHN DOLAN, MASHPEE )
SCHOOL COMMITTEE, and the TOWN
)
OF MASHPEE,
)
)
Defendants.
)

CIVIL ACTION NO.
11-11593-DPW

MEMORANDUM AND ORDER
September 16, 2013
Plaintiffs John and Jane Doe, on behalf of their child Jill
Doe, bring claims against various defendants for violations of
the due process and equal protection components of the Fourteenth
Amendment; the Individuals with Disabilities Education Act
(“IDEA”); section 504 of the Rehabilitation Act; the Americans
with Disabilities Act; Title IX; the Massachusetts Civil Rights
Act; the right to freedom from sexual harassment under
Massachusetts law; and for negligence, intentional and negligent
infliction of emotional distress, and loss of consortium.

Before

me are motions to dismiss filed by the Town of Mashpee, Dkt. No.
46, and by the Mashpee School Committee and certain individual
defendants, Dkt. No. 48.

1

I.
A.

BACKGROUND

The Parties
John and Jane Doe are the parents of Jill Doe, a minor who

was, at the time of the events giving rise to this suit, a
student at Mashpee High School.
The defendant Town of Mashpee, Massachusetts, is located on
Cape Cod.

The defendant Mashpee School Committee is the civil

entity which operates the public schools in the Mashpee School
District, including Mashpee High School.
The individual defendants are employees of the Town of
Mashpee or Mashpee High School, or were employees at the time of
the events giving rise to this lawsuit.
Ann Bradshaw is the School Department Superintendent.

Alan

Winrow was the former Principal at Mashpee High School, and Jane
Day, the current Principal, was Winrow’s Assistant Principal.
Patricia Farrell is a guidance counselor at Mashpee High School.
Carla Thomas was the former Special Education Director at Mashpee
High School.
District.

Peter Shea is a psychologist in the Mashpee School

John Dolan is an adjustment counselor in the Mashpee

School District.1
Stephen Weixler, the only party who has not moved to dismiss
the complaint, was an assistant soccer coach at Mashpee High
School until he was fired in March 2009.

1

His alleged sexual

I refer to these individuals collectively as the “school
officials” or the “employee-defendants.”
2

assault of Jill in the Fall of 2008 precipitated a variety of
litigation initiatives.

Weixler later pled guilty to indecent

assault of a minor, distribution of obscene matter to a minor,
and delivery of alcohol to a minor.
B.

He appears pro se.

Facts
Plaintiffs allege that in February 2008, before Jill Doe was

a student at Mashpee High School, supervisors at Mashpee High
School and/or the Mashpee School Committee were made aware of
allegations that Weixler was engaged in inappropriate conduct
with another minor student. Compl. ¶ 23.

Weixler’s supervisor

interviewed him about the claim, and Weixler denied the conduct.
Compl. ¶ 25.
In July 2008, Jill’s cousin was killed in a car accident.
That fall, Jill began her freshman year at Mashpee High School,
where she joined the school’s soccer team, coached by Weixler.
Jane Doe, Jill’s mother, notified the school that Jill’s cousin
had died that summer and mentioned that Jill appeared depressed
as a result.

Compl. ¶¶ 32-34.

From September 2008 through March 2009, Weixler harassed
Jill and on two occasions sexually assaulted her.

The first

instance of assault occurred in October 2008, when Weixler drove
Jill home from practice and massaged her leg with his hand.
Compl. ¶ 38.

In November 2008, Weixler picked Jill up from her

home, drove her to a remote location, and sexually assaulted her.
Compl. ¶¶ 19, 39.
3

Jill did not disclose either incident until March 2009.

Compl.

¶ 40.
Through the fall and winter, Weixler verbally harassed Jill
in the school hallways, texted pictures of his penis to her, and
repeatedly asked her to send him naked pictures of herself.
Compl. ¶ 40.

During that time, Jill exhibited and developed a

number of behavioral problems, including emotional outbursts,
insubordination and failure to attend class, difficulty
completing assignments, depression, and substance abuse.
also began to cut and burn herself.

She

Compl. ¶ 41.

In January 2009, an employee of the local Boys and Girls
Club reported to someone at Mashpee and/or the Mashpee School
Committee that students had told him that Weixler was engaged in
a sexual relationship with one or more students--other than
Jill--at Mashpee High School.

Compl. ¶ 49.

Principal Winrow and

Assistant Principal Day conducted an investigation of the
allegation, during which they interviewed Weixler, the minor with
whom Weixler allegedly had a relationship, and a friend of the
minor.

All three denied it and, on the basis of their denials,

Winrow and Day concluded their investigation.

Compl. ¶ 51.

In February 2009, Jane and John Doe approached the School
and asked for help designing a program to address Jill’s needs,
in light of her outbursts and other conduct.

Compl. ¶ 46.

The

School recommended that they file a Child in Need of Services
petition with the Juvenile Court to begin the process.
4

Compl.

¶ 47.

Meanwhile, Jill remained enrolled in her regular classes.

Compl. ¶ 48.
On March 6, 2009, a student reported to Mashpee High School
that Weixler was inappropriately texting students and purchasing
alcohol for them.

Compl. ¶ 53.

administrative leave.

As a result, Weixler was put on

Compl. ¶ 53.

Around the same time, Jill

told a friend that Weixler had harassed, assaulted, and raped
her; the friend then reported Jill’s story to Jane Doe.
¶ 56.

Compl.

At a meeting on March 9, 2009, Jane Doe reported Weixler’s

misconduct to the school.

Compl. ¶ 57.

On March 12, 2009, the School called the police and reported
the allegations of Weixler’s sexual assault of Jill.
investigated the matter and arrested Weixler.

Police

Compl. ¶ 59.

The

School held a meeting open to all Mashpee High School parents to
discuss the allegations of abuse and Weixler’s arrest.
¶ 60.

Compl.

The school held class-wide assemblies to discuss the

incident of sexual abuse and Weixler’s arrest.

Compl. ¶ 66.

It

did so despite a recommendation by The Children’s Cove, a child
advocacy group, that the school conduct small group discussions
with students to discuss the assault.

Compl. ¶ 65.

As a result

of speculation that Jill was the unnamed victim, as well as
Jill’s absence from the school on the day of a class assembly at
which the abuse was discussed, Jill was bullied and harassed by
her classmates.

Compl. ¶¶ 67-69.

5

From February 25, 2009 through April 7, 2010, the Mashpee
Child Study Team (the group serving as the gateway to special
education services under the IDEA) discussed Jill’s case at least
13 times.

Compl. ¶ 74.

The Team recommended only general

education accommodations for Jill, even after the reported
assault.

Compl. ¶ 75.

At Jane Doe’s meeting on March 9, 2009, the School
recommended that Jill be enrolled in an Anger Management Program
run by defendant Dolan.

Compl. ¶ 57.

Jane Doe did not think

that Jill was making progress, and sought assistance and services
from the School on multiple occasions from March 2009 through
January 2010.

Compl. ¶¶ 76-77.

On January 18, 2010, Jill was admitted to Falmouth Hospital,
and on January 21, 2010 was diagnosed with PTSD, mood disorder
NOS, R/O bipolar, and poly-substance abuse, with probable
emerging borderline personality disorder.

Compl. ¶¶ 79-81.

After being discharged on February 3, 2010, Jane returned to
Mashpee High School.

Compl. ¶ 82.

When Jill returned to Mashpee, Jane Doe met with counselor
Farrell to discuss what services were available to help Jill.
Farrell told Jane that no services were available to Jill, but
that she could go to a guidance counselor during the day if she
had issues.

Compl. ¶ 84.

Jane followed up with written requests

on March 18 and April 6, 2010, that Mashpee evaluate Jill for

6

eligibility for special education services pursuant to the IDEA.
Compl. ¶ 86.
The School again recommended that Jane Doe file a Child in
Need of Services petition with the Juvenile Court, which the Does
filed in late March 2010.
Child in Need of Services.

The Juvenile Court declared Jill a
Compl. ¶ 88.

On April 7, 2010, Jill was hospitalized at Arbor Fuller
Hospital after exhibiting symptoms of PTSD.

Compl. ¶ 88.

She

was transferred to the Germaine Lawrence Community Based Acute
Treatment Unit for stabilization and treatment.

Compl. ¶ 89.

In

light of Jill’s emotional problems, poly-substance abuse, and
propensity to run away, the Does requested that the School place
Jill in a residential therapeutic school.
School denied the Does’ request.

On May 13, 2010, the

Compl. ¶ 91.

On May 27, 2010, the School determined that Jill was
eligible for special education and other services.

Jill returned

to Germaine Lawrence for a 45-day residential placement where she
received an extended evaluation.

Compl. ¶ 92.

At the end of the

evaluation, the Does again requested that the School place Jill
in a residential therapeutic school, but the school again
refused.

Compl. ¶¶ 93-94.

On July 8, 2010, the School held a meeting regarding an
individualized education program (“IEP”) for Jill and determined
that it would fund a residential educational placement.

7

Compl.

¶ 96.

On July 14, 2010, the Does accepted the proposed IEP.

Compl. ¶ 97.
In June 2011, the Does requested an alternative placement
for Jill because they felt she was not making progress at the
previously-designated residential school.

Compl. ¶ 98.

On June

15, 2011, an IEP meeting was held, and the School denied the
Does’ request.

Compl. ¶ 98.

the residential school.

In August 2011, Jill ran away from

Compl. ¶ 99.

Mashpee consented to

explore an alternative placement but the team was unable to
identify or agree on one.

Compl. ¶ 100.

In May 2012, Jill

refused to return to the residential school placement and has
since enrolled in an alternative evening program at a local
school.
C.

Compl. ¶ 101.

Procedural History
Plaintiffs initiated this action on September 9, 2011 and

filed amended iterations of their complaint on January 6, 2012,
August 31, 2012, and October 12, 2012.

All of the defendants,

except Weixler, now move to dismiss the operative Third Amended
Complaint.2

2

Plaintiffs have opposed the motion to dismiss filed

In addition to the present suit, the parties have been
involved in two related cases. In the first case, CBDE Public
Schools v. Massachusetts Bureau of Special Education Appeals,
Civil Action No. 11-10874, the Town under the name CBDE filed
suit against the Bureau of Special Educational Appeals (“BSEA”)
and the Doe plaintiffs seeking to enjoin the BSEA’s fact-finding
hearing regarding the Does’ damage claims. In the second case,
Doe v. CBDE Public Schools, Civil Action No. 12-11082, the Does
sought attorneys’ fees as prevailing parties under the IDEA.
Through a September 27, 2012 Memorandum and Order I dismissed
both cases, holding in Civil Action No. 11-10874 that this Court
8

by the School Committee and the employee-defendants, but have
failed to oppose the Town’s motion to dismiss.

Nevertheless,

“the mere fact that a motion to dismiss is unopposed does not
relieve the district court of the obligation to examine the
complaint itself to see whether it is formally sufficient to
state a claim.”

Pomerleau v. W. Springfield Pub. Sch., 362 F.3d

143, 145 (1st Cir. 2004).3
II.

STANDARD OF REVIEW

In order to survive a motion to dismiss pursuant to Fed. R.
Civ. P. 12(b)(6), “a complaint must contain sufficient factual

lacked jurisdiction because the Does’ damage claims had not been
exhausted before the BSEA, and, in Civil Action No. 12-11082,
because the Does, having been awarded no enforceable substantive
relief from the BSEA, did not qualify for an award of fees as a
prevailing party under the IDEA.
It bears noting as well that by the time the instant case
was filed, Plaintiffs’ counsel concluded that the press had
received confirmation that “CBDE was, in fact, Mashpee . . . So,
the cat was sort of out of the bag, so to speak, on that.” Sept.
26, 2012 Tr. at 10. As a consequence, Plaintiffs’ complaint in
the instant case abandoned the protocol observed in the two
earlier cases of identifying the Town as “CBDE.” The victim,
however, has apparently not been publicly identified so anonymity
continues to be observed regarding the instant case.
3

But see Pomerleau v. W. Springfield Pub. Sch., 362 F.3d
143, 145 (1st Cir. 2004). (“Where a district court grants an
unopposed motion to dismiss pursuant to a local rule that
requires a response, we will uphold the sanction provided that it
does not offend equity or conflict with a federal rule.”)
Pomerleau suggests there is uncertainty as to whether this
Court’s Local Rules require a response to a motion to dismiss.
Id. at 146. For myself, I am of the view that the local rule by
use of the word “shall” is straight forward in requiring an
opposition. See D. Mass. L. R. 7.1(b)(2) (“A party opposing a
motion, shall file an opposition within 14 days after the motion
is served . . . .) (emphasis added).
9

matter, accepted as true, to state a claim to relief that is
plausible on its face.”

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949

(2009) (citation and internal quotation marks omitted).
Dismissal for failure to state a claim is appropriate when the
pleadings fail to set forth “factual allegations, either direct
or inferential, respecting each material element necessary to
sustain recovery under some actionable legal theory.”

Berner v.

Delahanty, 129 F.3d 20, 25 (1st Cir. 1997) (quoting Gooley v.
Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir.1988) (internal
quotation marks omitted).

“[W]here the well-pleaded facts do not

permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged--but it has not
‘show[n]’--‘that the pleader is entitled to relief.’”

Maldonado

v. Fontanes, 568 F.3d 263, 268 (1st Cir. 2009) (quoting Iqbal,
129 S. Ct. at 1949).
I “must accept all well-pleaded facts alleged in the
Complaint as true and draw all reasonable inferences in favor of
the plaintiff.” Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993).
While I am “generally limited to considering facts and documents
that are part of or incorporated into the complaint,” I “may also
consider documents incorporated by reference in the [complaint],
matters of public record, and other matters susceptible to
judicial notice.”

Giragosian v. Ryan, 547 F.3d 59, 65 (1st Cir.

2008) (citation and internal quotation marks omitted; alteration
in original).
10

III.

DISCUSSION

Plaintiffs seek redress on sixteen counts.

I address each

count in turn, except the claims solely against defendant Weixler
(Counts III, VI and XI), who has not moved to dismiss.
A.

Count I - Fourteenth Amendment (Due Process) Claim against
Employee-Defendants
Count I is a § 1983 claim against Superintendent Bradshaw,

Principal Winrow, and Assistant Principal Day, in their personal
capacities,4 for depriving Jill of “her rights, privileges and
immunities secured by the Constitution and laws of the United
States,” including rights arising under various heads of
constitutional authority to freedom from sexual abuse, to bodily
integrity, and to privacy.

Compl. ¶ 122.

To make out a claim

for a due process violation under the Fourteenth Amendment, the
Does must show not only that the employee-defendants exhibited
4

Although the caption of this count makes clear that it is
brought against these defendants only in their personal
capacities, certain language might imply that the claim is also
brought against these defendants in their official capacities.
See e.g., Compl. ¶ 109 (“Each and every act and omission alleged
here was done by the defendants not only as individuals, but also
under the color of state law . . . .”). To the extent that the
claim is brought against the employee-defendants in their
official capacities, it is merely a claim against the Town, as
alleged in Count II. Cf. Will v. Michigan Dep’t State Police,
491 U.S. 58, 71 (1989) (“Obviously, state officials literally are
persons. But a suit against a state official in his or her
official capacity is not a suit against the official but rather
is a suit against the official’s office. As such it is no
different from a suit against the State itself.”); Doe v.
Fournier, 851 F. Supp. 2d 207, 215 (D. Mass. 2012) (claim against
Town made claims against school committee members in official
capacities “superfluous”).
11

“deliberate indifference” toward Jill’s rights, but that their
conduct “shocks the conscience.”

Evans v. Avery, 100 F.3d 1033,

1038 (1st Cir. 1996) (Selya, J.).
More specifically, the claim is one for supervisory
liability, which exists only where “(1) there is subordinate
liability, and (2) the supervisor's action or inaction was
‘affirmatively linked’ to the constitutional violation caused by
the subordinate,” Aponte Matos v. Toledo Davila, 135 F.3d 182,
192 (1st Cir. 1998), such that the action or inaction amounted to
“supervisory encouragement, condonation or acquiescence, or gross
negligence amounting to deliberate indifference.”

Lipsett v.

Univ. of Puerto Rico, 864 F.2d 881, 902 (1st Cir. 1988).

To

establish supervisory liability, plaintiffs rely on the allegedly
deficient training and supervision of Weixler and other staff,
and the failure to terminate or at least discipline Weixler after
the February 2008 and January 2009 reports of his inappropriate
behavior.

Those failures, they say, ultimately led to the

violation of Jill’s constitutional rights by Weixler in March
2009.
Plaintiffs face an uphill battle, given that this is not a
case in which the defendants entirely ignored warning signals
about sexual abuse by Weixler.

Cf. Lipsett, 864 F.2d at 907

(defendants failed to take “any steps whatsoever to investigate”
reports of harassment); Doe v. Fournier, 851 F. Supp. 2d 207, 222
(D. Mass. 2012) (defendants “failed to conduct any investigation”
12

into reported sexual abuse of students).

That said, defendants

rely primarily on cases in which § 1983 claims were dismissed,
based on plaintiff’s failure to establish deliberate
indifference, at the summary judgment stage, rather than on a
motion to dismiss.

See e.g., Shrum ex rel. Kelly v. Kluck, 249

F.3d 773, 775 (8th Cir. 2001).
The complaint alleges that these defendants received reports
of Weixler’s inappropriate sexual relations with students prior
to his abuse of Jill, and that defendants engaged in only minimal
efforts to investigate those reports.

Whether plaintiffs can

establish that defendants’ response amounted to implicit
encouragement of Weixler’s actions or at least deliberate
indifference toward Jill’s constitutional rights will depend
largely on the credibility of the reports received and finer
grained details about the ensuing investigation.

But the claim

is at least plausible, and its resolution must await further
fact-finding.
The employee-defendants argue that they are nevertheless
protected by qualified immunity.

Qualified immunity “balances

two important interests--the need to hold public officials
accountable when they exercise power irresponsibly and the need
to shield officials from harassment, distraction, and liability
when they perform their duties reasonably.”
555 U.S. 223, 231 (2009).

Pearson v. Callahan,

Defendants are entitled to qualified

immunity unless (1) “the facts alleged or shown by the plaintiff
13

make out a violation of a constitutional right,” and (2) such
right was “‘clearly established’ at the time of the defendant’s
alleged violation.”

Maldonado, 568 F.3d at 269 (internal

quotation and citation omitted).

A right is “clearly

established” if “it would be clear to a reasonable [defendant]
that his conduct was unlawful in the situation he confronted.”
Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam)
(quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)).
Defendants do not argue that Jill’s rights were not clearly
established, but only that it would not have been clear that
defendants’ conduct violated those rights.

Assessing the

reasonableness of defendants’ conduct, however, again requires a
better understanding of what these defendants knew and did in
response to reports of Weixler’s sexual misconduct.

Thus, for

reasons similar to those already discussed, dismissal on
qualified immunity grounds would be premature.

Cf. Fournier, 851

F. Supp. 2d at 222 n.8 (qualified immunity and deliberate
indifference analysis essentially coextensive in supervisory
liability context (citing Camilo-Robles v. Zapata, 175 F.3d 41,
44 (1st Cir. 1999))).
Defendants seek refuge in DeShaney v. Winnebago Cnty. Dep’t
of Soc. Servs., 489 U.S. 189, 202 (1989), but that case dealt
with the state’s duty (or lack thereof) to protect against
private third-party harms.

DeShaney gave no indication that it

would exempt defendants from liability for deliberate
14

indifference toward constitutional violations by other state
employees under their supervisory control.

Cf. Stoneking v.

Bradford Area Sch. Dist., 882 F.2d 720, 724 (3d Cir. 1989)
(distinguishing liability for state failure to protect against
private harm from supervisory liability for state employee’s
violations of constitutional rights).
Plaintiffs state a plausible claim for constitutional
violations, rooted in defendants’ deliberate indifference toward
Jill’s rights, that cannot be dismissed at this stage.
B.

Count IV - Fourteenth Amendment (Equal Protection) Claim
against Employee Defendants
Count IV is a separate § 1983 claim against Bradshaw,

Winrow, and Day, in their personal capacities, for violating the
equal protection guarantee of the Fourteenth Amendment.
Defendants allegedly subjected Jill to a “hostile educational
environment,” Compl. ¶ 156, involving gender-based sexual
harassment, Compl. ¶ 147, and harassment by her peers, Compl. ¶¶
150-151, which deprived Jill of her right to an equal education,
Compl. ¶ 148.

These defendants allegedly contributed to gender-

based sexual harassment by Weixler through their failure to
protect Jill from Weixler.

Compl. ¶ 148.

With regard to peer

harassment, plaintiffs say the defendants again failed to protect
Jill and actually approved harassment by failing to adopt the
recommendations of The Children’s Cove regarding disclosure of
the sexual abuse to the school community.
15

Compl. ¶ 153.

1.

Harassment by Weixler

The allegations regarding defendants’ response to reports of
Weixler’s sexual misconduct are essentially the same as those
discussed earlier, albeit on an equal protection rather than a
due process theory.

As already explained, it would be premature,

at least until the completion of discovery, to resolve the issue
of deliberate indifference to Jill’s rights based on the manner
in which defendants dealt with Weixler’s conduct.
2.

Harassment by Peers

The allegations regarding peer harassment, by contrast, do
not plausibly establish a constitutional violation.

Although the

defendants did not adopt the recommendation of The Children’s
Cove, they were under no obligation to do so.

There is no

indication in the complaint that the defendants released Jill’s
name, and the complaint specifies that news reports of the
assault did not disclose Jill’s name.

Compl. ¶ 61.

Moreover,

there is no allegation that instances of harassment were referred
to school officials, let alone that they ignored or were
indifferent to such complaints.
At the very least, on this aspect of the claim, defendants
are shielded by qualified immunity.

Case law on protecting

students from peer harassment, in the analogous context of
liability under Title IX, specifies that schools need not “take
heroic measures” or “craft perfect solutions” to satisfy their
legal obligations.

Fitzgerald v. Barnstable Sch. Comm., 504 F.3d
16

165, 174 (1st Cir. 2007), rev'd on other grounds, 555 U.S. 246
(2009).

The behavior alleged in the complaint may have been

imperfect, but it was far from indifferent.

The complaint

alleges that peer harassment occurred, but also indicates that
the officials took some measures to protect Jill’s anonymity, and
makes no allegation that the officials thwarted any effort to
resolve specific complaints about peer harassment or that they
were even delinquent in responding to such complaints.
Reasonable officials would not have understood that defendants’
actions with regard to peer harassment, as alleged in the
complaint, violated Jill’s constitutional rights.
C.

Counts II & V - Fourteenth Amendment Claims against the Town
Counts II and V bring against the Town of Mashpee

essentially the same due process and equal protection claims
brought against the employee-defendants in Counts I and IV,
respectively.

The Town moved to dismiss these counts on the

grounds that the Does have failed to allege sufficient municipal
custom or policy to support their claim, as required by Monell v.
Dep’t of Soc. Servs., 436 U.S. 658 (1978) (Brennan, J.).
In Monell, the Supreme Court held that municipalities may be
held liable under section 1983 “when execution of a government’s
policy or custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official policy,
inflicts the injury.”

Id. at 694.

The Court has also held that

“[o]nly where a failure to train reflects a ‘deliberate’ or
17

‘conscious’ choice by a municipality . . . can a city be liable
for such a failure under § 1983.”

City of Canton, Ohio v.

Harris, 489 U.S. 378, 389 (1989).
Discrete actions by municipal officials with “final
policymaking authority,” however, may subject the Town to
liability.

Pembaur v. City of Cincinnati, 475 U.S. 469, 483

(1986); Welch v. Ciampa, 542 F.3d 927, 942 (1st Cir. 2008).

In

Massachusetts, the School Committee has such policymaking
authority, Armstrong v. Lamy, 938 F. Supp. 1018, 1035 (D. Mass.
1996) (citing Mass. Gen. Laws ch. 71, § 37), and the Complaint
alleges that the School Committee acts through Superintendent
Bradshaw.

Compl. ¶ 6.

As alleged in the complaint, the School Committee received
the February 2008 report of Weixler’s sexual misconduct, and
Bradshaw was directly involved in investigating the January 2009
report.

If Bradshaw acted on behalf of the Committee, acted with

deliberate indifference toward Jill’s rights in handling these
reports, and in doing so directly contributed to the eventual
harm Weixler inflicted upon her, the Town may be subject to
liability based on her conduct.

That said, as in Count IV, the

allegations of liability premised on the response to peer
harassment are insufficient to state a claim.
It seems implausible that Bradshaw could act unilaterally as
the final policymaking official without the concurrence of some
number of other School Committee members, or a delegation of
18

authority by the Committee.

But there is as yet no record on the

decisionmaking processes of the Committee, or Bradshaw’s ability
to act unilaterally on behalf of the Committee.

Here again, the

allegations are adequate at this stage to survive a motion to
dismiss, and dispositive action on this count must await further
factual development.
D.

Count VII - IDEA
Count VII alleges, through § 1983, a violation of the

IDEA--specifically, violation of Jill’s right to a free
appropriate public education (“FAPE”) and safe school environment
under 20 U.S.C. § 1412(a)(1).

Plaintiffs bring the claim against

the Town of Mashpee, as well as defendants Bradshaw, Winrow, Day,
Farrell, Shea, Dolan and Thomas, acting in their official
capacities.

Because the employee-defendants were sued in Count

VII in their official capacities this claim must also be
construed as a claim against the Town.

See Will v. Michigan

Dept. of State Police, 491 U.S. 58, 71 (1989).
The First Circuit has repeatedly “explained that § 1983 does
not provide a remedy . . . for IDEA violations.”

D.B. ex rel.

Elizabeth B. v. Esposito, 675 F.3d 26, 44 (1st Cir. 2012) (citing
Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 29 (1st Cir. 2006)).
This alone would justify dismissal of Count VII.
In any event, the claim is moot because the Does agreed to
an IEP and do not seek reimbursement for any expenses they
incurred.

“[J]usticiability requires the existence of an actual
19

case or controversy.

Even if an actual case or controversy

exists at the inception of litigation, a case may be rendered
moot (and, therefore, subject to dismissal) if changed
circumstances eliminate any possibility of effectual relief.”
Maine Sch. Admin. Dist. No. 35 v. Mr. R., 321 F.3d 9, 17 (1st
Cir. 2003) (internal citations omitted).

In July 2010, the Does

agreed to the proposed IEP for Jill, thus resolving their
prospective special education claim; as a consequence, any claim
relating to placement under the IEP is moot.5
As to any claim for damages, plaintiffs failed to plead the
required elements of their case.

Monetary recovery under the

IDEA “is limited to compensatory education and equitable remedies
that involve the payment of money, such as reimbursements for
educational expenses that would have been borne by defendants in
the first instance had they properly developed and implemented an
IEP.”

Diaz-Fonseca, 451 F.3d at 19.

Specifically, when

discussing “reimbursement,” the First Circuit meant that “parents
may recover only actual, not anticipated expenditures for private
tuition and related services.”

Id.

Here, the Does have not alleged that they incurred expenses
for which they are seeking reimbursement in their IDEA claim.
Indeed, the BSEA hearing officer confirmed that “during the

5

I note that the Plaintiffs represented during the
September 26, 2012 hearing in this case they are not appealing
from the BSEA decision.
20

February 14, 2011 motion hearing, Parents’ attorney stated that
Parents did not then have any expenses for which they seek
reimbursement,” and “have made no claims for compensatory
educational services.”6

Thus, the BSEA hearing officer found

that “all of the past and prospective special education claims
appearing in Parents’ hearing request have been resolved,” and
dismissed their substantive educational claims “as no longer in
dispute.”
Accordingly, no claim for violation of the IDEA, through §
1983 or directly, is properly before me now.
E.

Counts VIII & IX - Section 504 of the Rehabilitation Act &
Americans with Disabilities Act
Count VIII alleges that the Town and the School Committee

violated section 504 of the Rehabilitation Act, 29 U.S.C. § 794,
by deliberately failing to conduct a timely FAPE evaluation of
Jill, based on her disability.7

Count IX similarly alleges that

6

Although plaintiffs attached an April 28, 2011 BSEA
decision to their Third Amended Complaint, defendants also
submitted an earlier February 24, 2011 decision. As matters of
public record whose authenticity is not in doubt, such documents
may be judicially noticed without converting the motion to
dismiss into one for summary judgment. Alt. Energy, Inc. v. St.
Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001)
(noting general rule that “a court may not consider any documents
that are outside of the complaint, or not expressly incorporated
therein, unless the motion is converted into one for summary
judgment” does not apply “‘for documents the authenticity of
which are not disputed by the parties; [and] for official public
records’” (citation omitted)).
7

Section 504 of Rehabilitation Act provides:

No otherwise qualified individual with a disability in the
21

the Town and School Committee failed to accommodate Jill’s
educational needs on the basis of her disability, in violation of
the Americans with Disabilities Act (“the ADA”), 42 U.S.C. §
12132.8

These allegations against the School Committee are also

nothing more than an allegation against the Town.

There is no

dispute that Jill is disabled for purposes of both the
Rehabilitation Act, on the basis of emotional disturbance, 34
C.F.R. § 3008.8(c)(4)(i), and the ADA, on the basis of PTSD and
other diagnosed psychological disorders.
Defendants argue that plaintiffs are impermissibly
attempting to shoehorn their defunct IDEA claim into
discrimination claims.

See Diaz-Fonseca, 451 F.3d at 29

(“[W]here 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.”); Elizabeth B., 675 F.3d at 39

United States, as defined in section 705(20) of this title,
shall, solely by reason of her or his disability, be
excluded from the participation in, be denied the benefits
of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance . . . .
29 U.S.C.A. § 794(a).
8

The ADA mandates that “no qualified individual with a
disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subject to
discrimination by any such entity.” 42 U.S.C. § 12132. An
entity discriminates against a qualified individual if it fails
to make reasonable accommodations or modifications for that
person. 42 U.S.C. § 12182(b)(2)(A)(ii).
22

(“[Plaintiffs cannot disguise an IDEA claim in other garb
‘[w]here the essence of the claim is one stated under the IDEA
for denial of FAPE.’” (quoting Diaz-Fonseca, 451 F.3d at 29)).
Importantly, however, “a discrimination claim under the
Rehabilitation Act or the ADA involving a denial of a FAPE is not
coextensive with an IDEA claim.”

Esposito, 675 F.3d at 40.

In

other words, Diaz-Fonseca “does not bar a plaintiff from bringing
a discrimination claim based on a denial of a FAPE in conjunction
with an IDEA claim, because the discrimination claim involves the
additional element of disability-based animus. As such, the
discrimination claim does not ‘turn[] entirely on the rights
created by statute in the IDEA.’” Esposito, 675 F.3d at 40 n.8
(quoting Diaz-Fonseca, 451 F.3d at 29).
Here, plaintiffs have pleaded “something more than a
disappointing IEP or the predictable back-and-forth associated
with the IEP process,” such that the complaint is sufficient to
allege discrimination.

Esposito, 675 F.3d at 42.

Plaintiffs,

for example, emphasize that Jill was never even referred for
evaluation to determine her eligibility for special education
services until March 2010, over a year after defendants became
aware that Jill was subject to sexual abuse.

They argue this

delay constituted deliberate indifference toward Jill’s rights,
given that defendants had an obligation to evaluate children
“suspected” to have a disability requiring special education.
C.F.R. § 300.111(c).
23

34

Such deliberate indifference, if it existed, would support a
discrimination theory of liability, independent of an IDEA
violation.

In Nieves-Márquez v. Puerto Rico, 353 F.3d 108 (1st

Cir. 2003), the First Circuit made clear that claims under § 504
of the Rehabilitation Act and Title II of the ADA require
intentional discrimination.

Id. at 126.

But the court also

alluded to a potential “deliberate indifference” standard for
§ 504 violations, id. at 125 n.17, and cited Sellers ex rel.
Sellers v. Sch. Bd. of City of Mannassas, 141 F.3d 524, 529 (4th
Cir. 1998), which established a “bad faith or gross misjudgment”
standard of liability.

Moreover, courts have recognized that

intentional discrimination may be inferred from deliberate
indifference.

See e.g., Barber ex rel. Barber v. Colorado Dep’t

of Revenue, 562 F.3d 1222, 1228 (10th Cir. 2009).
The parties have not dedicated much energy to these
arguments, and finer points about the standard of liability in
this context remain to be resolved.

But, for now, it suffices

that plaintiffs have alleged independent statutory claims for
discrimination and not merely sought an end-run around their
failed IDEA claims.

The motion to dismiss Counts VIII and IX

must be denied.9

9

I note that the BSEA concluded plaintiffs would have some
success on their discrimination claims. But that observation, of
course, is hardly dispositive here.
24

F.

Count X - Title IX
Count X is a claim against the Town and the School Committee

for violations of Title IX of the Education Amendments of 1972,
20 U.S.C. § 1681.

For the town to be liable under Title IX it

must have been deliberately indifferent to known acts of
discrimination--in the form of sexual harassment--of which it had
actual knowledge and which occurred under its control.

See Davis

v. Monroe County Bd. of Educ., 526 U.S. 629, 642 (1999).
Plaintiffs allege that the School Committee failed to
appoint a Title IX coordinator.

Compl. ¶ 208.

But that failure,

in violation of 34 C.F.R. § 106.8, is not actionable by the
plaintiffs.

See

Gebser v. Lago Vista Indep. Sch. Dist., 524

U.S. 274, 290-91 (1998) (noting that a school’s “alleged failure
to comply with the regulations does not establish the requisite
actual notice and deliberate indifference,” nor does it
constitute “discrimination,” and noting that the Court has never
held “that the implied private right of action under Title IX
allows recovery in damages for violation of those sorts of
administrative requirements”).
Plaintiffs also allege that the defendants knew of the peeron-peer harassment that was occurring in the school as a result
of speculation that Jill was the victim of Weixler’s sexual
assault, and did nothing to stop it.

This claim fails for much

the same reasons as those discussed in Part III.B.2.

To succeed

under Title IX on a claim of peer-on-peer harassment, the Does
25

must show that (1) Jill was subject to “severe, pervasive, and
objectively offensive” sexual harassment by a school peer, (2)
the harassment deprived Jill of educational opportunities or
benefits, (3) the Town knew of the harassment, (4) the harassment
took place in the Town’s programs or activities, and (5) that the
Town “was deliberately indifferent to the harassment such that
its response (or lack thereof) is clearly unreasonable in light
of the known circumstances.”

Porto v. Town of Tewksbury, 488

F.3d 67, 72-73 (1st Cir. 2007).
Here, plaintiffs claim that, following a school assembly
discussing Weixler’s sexual assault of an unidentified student,
students harassed Jill because they speculated that she had been
the victim of the assault.

However, they fail to allege, beyond

undetailed and conclusory assertion, that the defendants knew
Jill was being harassed by her peers or even knew about the
harassment, let alone deliberately avoided remedying the
harassment.

The Complaint thus fails to state a plausible claim

for relief on the Does’ peer-on-peer harassment theory under
Title IX, and this portion of Count X must be dismissed.
Finally, plaintiffs allege that the defendants knew of
Weixler’s prior harassment and abuse and chose not to stop the
harassment and abuse, despite its ability to do so.

As discussed

in Parts III.A and III.B.1, dismissal of this portion of the
claim would be premature.

True, defendants responded promptly to

the report of sexual abuse against Jill.
26

And I recognize that “a

claim that the school system could or should have done more is
insufficient to establish deliberate indifference.”
F.3d at 73.

Porto, 488

But the facts regarding earlier reports of sexual

misconduct, and defendants’ response to those reports, are as yet
undeveloped.

Determining whether the Town acted with deliberate

indifference toward Jill’s rights is again contingent on that
factual development.
G.

Counts XII through XVI – State Law Claims
Counts XII, XIII, and XIV bring claims under Massachusetts

law for negligence, intentional infliction of emotional distress,
and negligent infliction of emotional distress against various
defendants under the Massachusetts Tort Claims Act, Mass. Gen.
Laws ch. 258 § 2.

Count XV claims loss of consortium, Mass. Gen.

Laws ch. 231, § 85X.

Count XVI alleges a violation of the right

to freedom from sexual harasssment, Mass. Gen. Laws ch. 214,
§ 1C.
1.

Background on Tort Claims

The Massachusetts Tort Claims Act, Mass. Gen. Laws ch. 258
§ 2, provides the exclusive remedy for torts by municipal
employees.

It provides, in relevant part, that:

Public 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, in the same manner and to the
same extent as a private individual under like
circumstances . . . . The remedies provided by this
chapter shall be exclusive of any other civil action or
proceeding by reason of the same subject matter against
the public employer or, the public employee or his
27

estate whose negligent or wrongful act or omission gave
rise to such claim, and no such public employee or the
estate of such public employee shall be liable for any
injury or loss of property or personal injury or death
caused by his negligent or wrongful act or omission
while acting within the scope of his office or
employment . . . .
Id.
The Act serves as a limited waiver of sovereign immunity,
but the Town invokes Mass. Gen. Laws ch. 258, §§ 10(c) & (j),
which exclude certain claims from this waiver.

Section 10(c)

preserves a public employer’s sovereign immunity for claims
arising out of intentional torts.

Id. § 10(c).

Section 10(j)

preserves immunity for claims “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.”

Id. §

10(j).
For purposes of state tort liability, the Town and the
School Committee rise and fall together.

Under Mass. Gen. Laws

ch. 258, § 1, “public employer” means “the commonwealth and any
county, city, town, educational collaborative, or district . . .
and any department, office, commission, committee, council,
board, division, bureau, institution, agency, or authority
thereof.”

Mass. Gen. Laws ch. 258 § 1.

Furthermore, “[w]ith

respect to public employees of a school committee or a city or

28

town, the public employer for the purposes of this chapter shall
be deemed to be said respective city or town.”
2.

Id.

Count XII - Negligence

Count XII alleges that the Town, the School Committee,
Bradshaw, Winrow, Day, Farrell, Shea, Dolan, and Thomas, were
negligent in hiring and failing to train, supervise, investigate,
and terminate Weixler.
i.

The Town

The Town claims that it is immune from suit under sections
10(c) and 10(j).

Under section 10(c), as noted above, the Town

is immune from suit for claims arising out of the intentional
torts of its employees.

Mass. Gen. Laws ch. 258 § 10(c).

Thus,

to the extent that Count XII might be read as based on Weixler’s
intentional tort, it is barred.
Count XII may, however, be read as an independent claim for
negligence in hiring and failing to train, supervise,
investigate, and terminate Weixler.

As the Massachusetts Supreme

Judicial Court has noted, this presents a distinct negligence
claim that is not barred by section 10(c).

Doe v. Town of

Blandford, 525 N.E.2d 403, 408 (Mass. 1988); see also Chaabouni
v. City of Boston, 133 F. Supp. 2d 93, 96-98 (D. Mass. 2001)
(rejecting motion to dismiss claiming section 10(c) immunized
city where complaint alleged negligence in the failure to train
officers who assaulted and battered plaintiff).
does not offer the Town the immunity it seeks.
29

Section 10(c)

The Town, however, is shielded to some extent by 10(j).

As

noted above, that section bars claims based on a failure to act
to diminish the harm caused by a situation, as long as that
situation “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); Brum v. Dartmouth, 704 N.E.2d 1147,
1155 (Mass. 1999) (concluding that the “originally caused”
language refers to the “condition or situation”).
The Supreme Judicial Court has “construed the ‘original
cause’ language to mean an affirmative act (not a failure to act)
by a public employer that creates the ‘condition or situation’
that results in harm inflicted by a third party.”

Kent v.

Commonwealth, 771 N.E.2d 770, 775 (Mass. 2002) (citing Brum, 704
N.E.2d at 1154-55).

Affirmative acts of a public employer are

only the “original cause” of a “condition or situation” if they
“materially contributed to creating the specific ‘condition or
situation’ that resulted in the harm.”

Id. at 775-76.

The Town might be called the “original cause” of the
“condition or situation” that resulted in harmful consequences to
Jill given that it hired Weixler.
are not actionable.

Unduly remote causes, however,

Kent, 771 N.E.2d at 775-76.

The hiring

decision is not necessarily too remote, but plaintiffs have also
failed to allege that any negligence in initially hiring Weixler
had any connection to later sexual misconduct.

The complaint

alleges that Weixler was given preferential treatment due to his
30

mother’s employment with the Masphee public school system, Compl.
¶ 21, and that he was not qualified for the job, Compl. ¶ 22.
Plaintiffs fail to allege, however, that Weixler had a criminal
record or history of sexual assault, or that defendants were
aware of any other information that would put them on notice of
poor character, specifically as relevant to sexual abuse.

See

Armstrong v. Lamy, 938 F. Supp. 1018, 1046 (D. Mass. 1996) (“A
claim for negligent hiring requires evidence that the employer
failed to exercise due care in the selection of an employee,
evidence that the employer knew or should have known that the
employee who was hired was unfit and posed a danger to others who
would come into contact with the employee during the employment,
and evidence that the employer's failure proximately caused the
injury of which the plaintiff complains.”).
From there, most of the alleged failures to train or
supervise or take corrective action, Compl. ¶ 226, are failures
to mitigate harm.

See Armstrong, 938 F.Supp at 1044 (allegation

that “city employees failed to ‘protect’ [plaintiff], and failed
to ‘train,’ ‘supervise,’ ‘regulate,’ ‘control,’ or ‘correct’
[defendant teacher]” were “based on the failure to prevent or
mitigate a harm, rather than participation in the initial
injury-causing circumstance”).
That said, the decision to retain Weixler as coach following
the earlier reports of sexual misconduct is an affirmative act
not shielded by 10(j).

Cf. Pettengill v. Curtis, 584 F. Supp. 2d
31

348, 367 (D. Mass. 2008) (negligently hiring and promotion not
shielded by 10(j)); Bonnie W. v. Commonwealth, 643 N.E.2d 424,
426 (1994) (negligent recommendation of continued employment not
shielded by 10(j)).

On this narrow theory of breach, then, the

negligence claim may proceed.
ii.

Individual Employee Defendants

Public employees may only be liable under the Massachusetts
Tort Claims Act if they acted outside of the scope of their
employment.

Mass. Gen. Laws ch. 258 § 2 (“no public employee or

the estate of such public employee shall be liable for any injury
. . . caused by his negligent or wrongful act or omission while
acting within the scope of his office or employment.”).

The

complaint only alleges that the employee-defendants were acting
within the scope of their authority as employees throughout the
relevant period.

See Compl. ¶¶ 8 (Bradshaw), 9 (Dolan), 10

(Shea), 12 (Winrow), 13 (Day), 14 (Thomas), & 15 (Farrell).
Count XII therefore must be dismissed as to the individual
employee-defendants.
3.

Count XIV - Negligent Infliction of Emotional Distress

Count XIV alleges that the Town, the School Committee,
Bradshaw, Winrow, Day, Farrell, Shea, Dolan, and Thomas
negligently inflicted emotional distress on the Does.

To succeed

on a claim for negligent infliction of emotional distress, the
Does must demonstrate “(1) negligence; (2) emotional distress;
(3) causation; (4) physical harm manifested by objective
32

symptomatology; and (5) that a reasonable person would have
suffered emotional distress under the circumstances of the case.”
Payton v. Abbott Labs, 437 N.E.2d 171, 181 (Mass. 1982) (Lynch,
J.).

To the extent that Count XIV seeks recovery for Jane and

John Doe, their claim fails because they have not alleged any
“physical harm manifested by objective symptomatology.”

The

remainder of the claim may proceed to the same extent as the
claim for negligence, as discussed in Part III.G.2, supra:

Jill

may pursue breach based on the Town’s decision to continue its
employment of Weixler following the February 2008 and January
2009 reports of sexual misconduct; the claim against the
individual defendants, however, must be dismissed.
4.

Count XIII - Intentional Infliction of Emotional
Distress

Count XIII brings a claim for intentional infliction of
emotional distress against Bradshaw, Winrow, Day, Farrell, Shea,
Dolan, and Thomas.

The conduct alleged, however, does not amount

to “extreme and outrageous” conduct as necessary for liability.
Agis v. Howard Johnson Co., 355 N.E.2d 315, 318 (Mass. 1976).
Even demonstration of “malice,” without more, is insufficient to
sustain a claim for intentional infliction of emotional distress.
See Tetrault v. Mahoney, Hawkes & Goldings, 681 N.E.2d 1189, 1197
(Mass. 1997).

Plaintiffs’ claims are already on the border of

“deliberate indifference” or “intentional discrimination” as
necessary to succeed on many of their claims and, as pleaded, the
33

alleged conduct falls short of being “beyond all possible bounds
of decency” or “utterly intolerable in a civilized society.”
Agis, 355 N.E.2d at 319.
serious allegations.

I do not mean to minimize the other

But having deliberate indifference towards

Jill’s rights does not mean that the defendants’ actions were
“extreme and outrageous” or “beyond all possible bounds of
decency.”
5.

Count XV - Loss of Consortium

Count XV claims that John and Jane Doe have been deprived of
the consortium of Jill Doe, and are entitled to compensation from
all defendants under Mass. Gen. Laws ch. 231, § 85X.
Given that I have dismissed plaintiffs’ other tort claims as
to the employee-defendants, and a claim for loss of consortium
cannot be supported without an underlying tortious act, Sena v.
Commonwealth, 629 N.E.2d 986, 994 (Mass. 1994), the loss of
consortium claim must also be dismissed as to those defendants.
The loss of consortium claim against the Town fails for a
different reason.

The loss of consortium statute states that

“[t]he parents of a minor child . . . shall have a cause of
action for loss of consortium of the child who has been seriously
injured against any person who is legally responsible for causing
such injury.”

Mass. Gen. Laws ch. 231 § 85X (emphasis added).

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
34

partnerships,” but makes no mention of municipalities or
government entities.

Mass. Gen. Laws ch. 4, § 7.

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.

See, e.g.,

Williams v. O’Brien, 936 N.E.2d 1, 4 (Mass. App. Ct. 2010)
(citing Massachusetts cases holding that governmental entities
are not “persons” subject to suit under the Massachusetts Civil
Rights Act, Mass. Gen. Laws ch. 12, § 11H).

Absent any

indication to the contrary, I find that the Town is not a
“person” for purposes of the Massachusetts loss of consortium
statute.

Count XV therefore must be dismissed as to the Town as

well.
6.

Count XVI - Right to Freedom from Sexual Harasssment

Count XVI is a claim against the Town and the School
Committee for violation of the right to freedom from sexual
harassment under Mass. Gen. Laws ch. 214, § 1C.

The complaint

alleges that, under this provision, defendants are “strictly and
vicariously liable for actions committed by their employees that
are within the scope of employment and furthered by their
employment.”

Compl. ¶ 245.

Defendants argue that the Title IX

“deliberate indifference” standard should apply because Title IX
and Massachusetts law prohibit the same forms of sexual
harassment.

See Mass. Gen. Laws ch. 151C, § 1(e); Wills v. Brown
35

Univ., 184 F.3d 20, 25 (1st Cir. 1999) (describing “quid pro quo”
and “hostile environment” theories of sexual harassment).
I decline to enter the fray at this stage.

I have indicated

in this Memorandum that a ruling on deliberate indifference will
require further factual development and so, even adopting
defendants’ proposed standard, dismissal is inappropriate.

The

parties can pursue the question further on summary judgment.
IV. CONCLUSION
For the reasons discussed more fully above, the motions to
dismiss (Dkt. Nos. 46 & 48) are GRANTED IN PART and DENIED IN
PART, specifically:
The motions to dismiss Counts I, II, VIII, IX, and XVI are
DENIED; the motions to dismiss Counts VII, XIII, and XV are
GRANTED; the motions to dismiss Counts IV and V are GRANTED to
the extent liability is premised on failure to protect against
peer harassment, but otherwise DENIED; the motion to dismiss
Count X is GRANTED to the extent liability is premised on failure
to appoint a Title IX coordinator or to protect against peer
harassment, but the motion is otherwise DENIED; the employeedefendants’ motion to dismiss Counts XII and XIV is GRANTED; the
Town’s motion to dismiss Counts XII and XIV is DENIED to the

36

extent liability is premised upon the decision to retain Weixler
following reports of sexual misconduct, but is otherwise GRANTED.

/s/ Douglas P. Woodlock
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

37