Doe v. Town of Stoughton et al

Filing 36

Judge Indira Talwani: ORDER entered. MEMORANDUM AND ORDER ALLOWING IN PART and DENYING IN PART 21 Partial Motion to Dismiss the First Amended Complaint. See Attached Order. (DaSilva, Carolina)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
Jane Doe,
Plaintiff,
v.
Town of Stoughton, Juliette Miller, and
Marguerite Rizzi,
Defendants.

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Civil Action No. 17-cv-12337-IT

MEMORANDUM & ORDER
April 25, 2018
TALWANI, D.J.
A teacher employed by the Town of Stoughton (“the Town”) allegedly sexually
assaulted Jane Doe for several years while she was a high school student. Doe brings federal
and state law claims against the Town and two school administrators for violating Title IX of
the Education Amendments of 1972, 20 U.S.C. § 1681; 42 U.S.C. § 1983; and various state
laws. Defendants’ Partial Motion to Dismiss the First Amended Complaint [#21], presently
before the court, seeks dismissal of all but one claim. The motion is ALLOWED in part and
DENIED in part.
I.

Background as Alleged in the First Amended Complaint
The plaintiff, Jane Doe, attended Stoughton High School at the time of the events in

question. First Am. Compl. (“Compl.”) ¶¶ 11, 14, 17-18 [#18]. Defendant Juliette Miller was, at
the relevant times, the principal of Stoughton High School. Id. ¶ 3. Defendant Marguerite Rizzi
was, at the relevant times, the Superintendent of Stoughton Public Schools. Id. ¶ 4.
Doe became involved in the Destination Imagination extracurricular program at
Stoughton High School during the 2013-14 school year, when she was a sophomore. Id. ¶ 11.

The program was run by Timothy Norton, a teacher at Stoughton High School. Id. ¶¶ 5, 11.
Starting in the beginning of the 2014-15 school year, Norton allowed Doe to keep her personal
and school belongings in his classroom and to rest in the backroom of his classroom, engaged in
intimate one-on-one conversations with Doe, texted Doe individually on a regular and late night
basis on non-educational matters, and spent time with Doe one-on-one during and after school
hours. Id. ¶¶ 17-18. The complaint alleges that Doe and Norton’s relationship became physical in
November 2014, and Doe and Norton “initially engaged in sexual intercourse in February 2015
and thereafter.” Id. ¶ 20. Doe was observed on multiple occasions alone late at night in Norton’s
classroom and/or the classroom’s more private back room. Id. ¶ 16.
In the fall of 2015, another student informed his teacher that he had observed Norton
providing Doe with special treatment. Id. ¶ 21. The student and teacher reported to Miller that
they had observed Doe parking her vehicle at the nearby school and subsequently getting into
Norton’s vehicle. Id. Miller launched an investigation into the relationship between Doe and
Norton after receiving this report. Id. The complaint alleges, however, that “[t]he ‘investigation’
was perfunctory and conducted in a hostile and coercive environment in a manner which
obstructed the revelation of the truth and was accusatory of the ‘victim.’” Id. ¶ 22. “Neither Ms.
Doe nor Norton was disciplined as a result of this ‘investigation’ and Norton’s abuse of Ms. Doe
continued through her senior year and beyond . . . .” Id. ¶ 31.
In September 2017, Doe and Norton ended their relationship and Doe disclosed their
relationship to another teacher. Id. ¶ 38. That teacher reported that information “to the principal
for Stoughton and other administrative personnel.” Id. ¶ 39. At that point, Stoughton served
Norton with an “intention to dismiss” notice and the matter was reported to the Stoughton Police
Department. Id. ¶ 40.

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This action followed.
II.

Standard
In resolving a Rule 12(b)(6) motion to dismiss, the court must “examine whether the

operative complaint states a claim for which relief can be granted, construing the well-pleaded
facts in the light most favorable to the plaintiff, accepting their truth and drawing all reasonable
inferences in plaintiff's favor.” Ruivo v. Wells Fargo Bank, N.A., 766 F.3d 87, 90 (1st Cir.
2014). The court first “distinguish[es] the complaint's factual allegations (which must be
accepted as true) from its conclusory legal allegations (which need not be credited),” and then
“determine[s] whether the factual allegations are sufficient to support the reasonable inference
that the defendant is liable.” Saldivar v. Racine, 818 F.3d 14, 18 (1st Cir. 2016) (citation
omitted).
III.

Discussion
A. Uncontested Claims
As to a number of the issues raised by Defendants, there is now no disagreement between

the parties.
First, Defendants challenge Plaintiff’s allegation that some or all Defendants are liable
for violating various Massachusetts statutes, including the mandatory reporter statute, M.G.L. ch.
119, § 51A, the anti-bullying statute, M.G.L. ch. 71, § 37O, and the statute requiring schools to
notify personnel of mandatory reporting obligations, M.G.L. ch. 71, § 37L. Defendants contend
that these Massachusetts statutes do not provide for a private right of action. See Def.s’ Mem in
Support of Mot. to Dismiss (“Def. Mem.”) 9-11 [#22]. At the hearing on the motion to dismiss,
Plaintiff’s counsel clarified that the complaint does not seek to assert stand-alone claims based
on these statutes, and that the allegations that the Defendants violated some or all of these
statutes are included only insofar as these alleged violations are relevant to other claims.
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Accordingly, Defendants’ motion to dismiss claims under M.G.L. ch. 119, § 51A, and M.G.L.
ch. 71, §§ 37L and 37O is DENIED as moot as no such claims are asserted.
Next, Defendants seek to dismiss Plaintiff’s claims against Rizzi and the Town under the
Massachusetts Civil Rights Act (“MCRA”), M.G.L. ch. 12 §§ 11H-11I. Def. Mem. 16-18 [#22].
Plaintiff agrees that the complaint does not state a MCRA claim against Rizzi. Opp’n 9 [#27].
And, Plaintiff does not oppose Defendants’ argument that the MCRA claim against the Town
fails because the MCRA applies only to persons. Defendants’ motion to dismiss is therefore
ALLOWED as unopposed as to the MCRA claims against Rizzi and the Town.
Third, Defendants challenge the claims that Miller and Rizzi violated the Massachusetts
Fair Educational Practices statute, M.G.L. ch. 151C, and that Miller violated Title IX, on the
ground that neither chapter 151C nor Title IX provides for a cause of action against individuals.
See Def. Mem. 11-12 [#22]. Plaintiff does not disagree. Opp’n 7 [#27]. Accordingly,
Defendants’ motion to dismiss is ALLOWED as unopposed as to Plaintiff’s chapter 151C claims
against Miller and Rizzi and as to the Title IX claim against Miller.
Finally, Defendants challenged Plaintiff’s chapter 151C claim against the Town on the
grounds that Plaintiff failed to file a charge of discrimination with the Massachusetts
Commission Against Discrimination before filing this action. The statutory framework
governing chapter 151C’s administrative exhaustion requirement is, as this court has observed,
“somewhat tangled.” Bloomer v. Becker Coll., No. 09-cv-11342-FDS, 2010 WL 3221969 at *6
(D. Mass. Aug. 13, 2010). At the hearing on the motion to dismiss, Defendants informed the
court that they no longer seek to pursue the exhaustion argument. Accordingly, Defendants’
motion to dismiss this claim for failure to exhaust is considered withdrawn.

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In light of the foregoing, no claims remain against Defendant Rizzi. The court turns now
to the remaining claims against Defendants Miller and the Town.
B. Remaining Federal Claims
1. Title IX
To succeed on her Title IX claim against the Town, Plaintiff must show that she “was a
student, who was subjected to harassment based upon sex . . . [that] was sufficiently severe and
pervasive to create an abusive educational environment.” Frazier v. Fairhaven Sch. Comm., 276
F.3d 52, 66 (1st Cir. 2002). She must show, too, that “an official who at a minimum has authority
to address the alleged discrimination and to institute corrective measures on the recipient’s
behalf has actual knowledge of discrimination in the recipient’s programs and fails adequately to
respond.” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 288-90 (1989). Defendants
contend that the complaint fails to allege either actual knowledge or deliberate indifference. See
Def. Mem. 13.
“The actual knowledge requirement imposes a higher standard for Title IX claims than
for claims arising under § 1983, where deliberate indifference can follow actual or constructive
knowledge.” Doe v. Bradshaw, 203 F. Supp. 3d 168, 185 (D. Mass. 2016) (citing Lipsett v. Univ.
of P.R., 864 F.2d 881, 903 (1st Cir. 1988)). Actual knowledge requires that the defendant is
deliberately indifferent to “known acts” of harassment or discrimination. See Davis v. Monroe
Cty. Bd. of Educ., 526 U.S. 629, 633, 643 (1999). Courts have thus found that notice of
inappropriate conduct that did not constitute harassment or discrimination did not give rise to
actual notice of sex discrimination or harassment. See Gebser, 524 U.S. at 279-80 (complaint
from parents of other students charging inappropriate comments during class did not constitute
actual knowledge sexual harassment or discrimination); Bradshaw, 203 F. Supp. 3d at 185

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(rumors of purchasing alcohol for students “cannot give rise to actual knowledge for Title IX
purposes”).
The complaint in this case alleges that “a classmate of Ms. Doe informed his teacher of
his observations of Norton providing Doe with special treatment. The student, along with the
teacher, reported that they had observed Ms. Doe parking her vehicle at the nearby school and
subsequently getting into Norton’s vehicle.” Compl. ¶ 21. Plaintiff argues that Miller had actual
knowledge of Norton spending excessive time with Doe, giving her special treatment, and
leaving school property with Doe in his vehicle. Opp’n 8 [#27]. In Plaintiff’s view, “[s]uch
conduct between an older male teacher and a minor female student objectively reveals the strong
and presumptive likelihood of illegal sexual misconduct, abuse and harassment.” Id. However,
even interpreting the complaint as Plaintiff suggests, see Ruivo, 766 F.3d at 90, these allegations
do not establish that Miller had actual knowledge of sexual harassment or discrimination, as
required by Title IX.
Accordingly, Defendants’ motion to dismiss Plaintiff’s Title IX claim against the Town is
ALLOWED.
2. 42 U.S.C. § 1983
Defendants do not challenge Plaintiff’s § 1983 claim against the Town on this motion to
dismiss, but do seek dismissal of the § 1983 claim as to Miller.
A supervisor can be liable for a subordinate’s actions under § 1983 “if the subordinate’s
behavior led to a constitutional violation and if ‘the supervisor's action or inaction was
affirmatively linked to that behavior in the sense that it could be characterized as supervisory
encouragement, condonation or acquiescence or gross negligence amounting to deliberate
indifference.’” Salvidar, 818 F.3d at 18 (quoting Estate of Bennett v. Wainwright, 548 F.3d 155,

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176-77 (1st Cir. 2008)). To demonstrate deliberate indifference under § 1983, the “supervisor
must have ‘actual or constructive knowledge’ of a ‘grave risk of harm’ posed by the subordinate
and fail to take ‘easily available measures to address the risk.’” Id. (quoting Camilo–Robles v.
Hoyos, 151 F.3d 1, 6–7 (1st Cir. 1998)).
As discussed above, Plaintiffs have not alleged facts sufficient to charge Miller with
actual knowledge of the sexual harassment. She has alleged (albeit in a somewhat conclusory
fashion), that from these facts, “Miller should have considered and did consider the information
she received to be a credible basis for suspected sexual abuse.” Compl. ¶ 21. Although a close
call, in light of the allegations of the report to Miller of time spent by Norton and Doe outside of
school without others present, that Doe was observed by one or more school employees on
multiple occasions alone late at night in a back room with Norton, and that multiple teachers and
administrators knew that Norton was providing Doe with passes to spend significant time in his
class room, a reasonable jury could conclude that Miller was on constructive notice of a grave
risk of harm posed by Norton to Doe.
Defendant further emphasizes that, in any case, after receiving this information Miller did
address the risk by conducting an investigation and interviewing both Norton and Plaintiff, both
of whom denied having an improper relationship. Def. Mem. 19 [#22].
Plaintiff responds that Miller displayed deliberate indifference because she pursued her
investigation with “superficial effort, at best, to get at the truth.” Opp’n 10 [#27].
The facts pled in the complaint, construed in the light most favorable to Doe, could give
rise to an inference that, having constructive knowledge of a grave risk of harm, Miller failed to
take sufficient, easily available measures to address the risk. Defendants’ motion to dismiss the
section 1983 claim against Miller is therefore DENIED.

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C. Remaining State law Claims
1. Massachusetts Civil Rights Act
Together, sections 11H and 11I of the MCRA provide a private right of action for “[a]ny
person whose exercise or enjoyment of rights secured by the constitution or laws of the United
States, or of rights secured by the constitution or laws of the commonwealth, has been
interfered with, or attempted to be interfered with,” M.G.L. ch. 12 § 11H, “by threats,
intimidation or coercion,” id. § 11I.
In the context of interfering with a person’s rights under the MCRA, a threat “involves
the intentional exertion of pressure to make another fearful or apprehensive of injury or harm.”
Planned Parenthood League v. Blake, 417 Mass. 467, 474 (1994). “‘Intimidation’ involves
putting in fear for the purpose of compelling or deterring conduct,” and coercion involves “the
application to another of such force, either physical or moral, as to constrain him to do against
his will something he would not otherwise have done.” Id. (citations omitted). Defendants
contend that Plaintiff’s MCRA claim against Miller must be dismissed because the complaint
contains no factual allegations that Miller threatened, intimidated, or coerced Plaintiff, and no
factual allegations illustrating any violation of Doe’s constitutional rights. Def. Mem. 16-18
[#22].
Plaintiff responds that the complaint sufficiently alleges that Miller’s investigation
involved intimidation and coercion because “the manner in which the so-called investigation
was conducted by Miller put [Doe] in fear of telling the truth.” Opp. at 10. But, on a motion to
dismiss, the court must first distinguish the complaint’s factual allegations (which must be
accepted as true) from its conclusory legal allegations (which need not be credited). See
Saldivar, 818 F.3d at 18. The complaint does allege that Miller “conducted the interview in a

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hostile, intimidating, and coercive manner designed to obstruct the revelation of the truth.”
Compl. ¶ 24. Accepting that Plaintiff may have felt intimidated and scared when she was being
questioned by the principal, she offers no factual allegations from which one could draw the
inference that Miller questioned her in an intimidating manner “to obstruct the revelation of the
truth.”
Instead, the Complaint alleges only that Miller questioned Doe, a minor, without
notifying her parent or guardian, that Miller “did not ask Ms. Doe to retrieve her cell phone and
never did anything to review the cell phone’s content” despite “having credible information that
the cell phone was involved in communications between Norton and Ms. Doe,” and that Miller
“did not ask Ms. Doe if she had been threatened in anyway by Norton” or “assure Ms. Doe that
she would not be in trouble with the Town if she revealed she was a victim of sexual abuse.”
Compl. ¶¶ 22, 24. At most, these allegations suggest that alternative ways to conduct the
interview may have elicited more information. They do not support the claim that Miller
engaged in “threats, intimidation or coercion” for the purpose of interfering with Doe’s civil
rights.
In the absence of such factual allegations, Defendants’ motion to dismiss the MCRA
claim against Miller is ALLOWED.
2. Massachusetts Torts Claims Act
The Massachusetts Torts Claims Act (“MTCA”), M.G.L. ch. 258, provides for liability of
public employers for injuries caused by the negligent acts or omissions of public employees
while acting within the scope of official employment. Plaintiff claims that the Town is liable for
the negligent acts of employees other than Norton. See Opp’n 2 [#27] (clarifying that Plaintiff
does not seek to establish MTCA liability based on Norton’s negligent or intentional acts).

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Section 10(j) of the MTCA protects a municipality from liability “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.” M.G.L. ch. 258,
§ 10(j). The provision establishes “a distinction between the failure to alleviate or respond to a
private harm,” which is not actionable, “and the action of a public employee in initially creating
the injury-causing circumstance,” which is actionable. See Armstrong v. Lamy, 938 F. Supp.
1018, 1044 (D. Mass. 1996). Claims for negligent supervision have therefore been held to be
barred by section 10(j) because they are omissions rather than affirmative acts. Pettengill v.
Curtis, 584 F. Supp. 2d 348, 366 (D. Mass. 2008) (citing Armstrong, 938 F. Supp. at 1043-46). A
claim that municipal employees “failed to ‘train,’ ‘supervise,’ ‘regulate,’ ‘control,’ or ‘correct’”
Norton would be likely be considered a “failure to alleviate or respond to a private harm” subject
to dismissal. See Armstrong, 938 F. Supp. at 1043-46; but see LaPierre v. City of Lawrence, No.
11-cv-12039-RWZ, 2013 WL 1829120 at *2-5 (D. Mass. May 1, 2013) (holding that section
10(j) bars liability for negligent supervision only where the negligent supervision was
attributable to a private third party, not to a public employee).
However, if a municipal employee negligently hired a perpetrator, the municipality “may
have ‘originally caused’ the situation and, therefore, it would not be immune from suit pursuant
to section 10(j).” Pettengill, 584 F. Supp. 2d at 367. Similarly, “if negligent promotion . . .
created a new risk by giving [the perpetrator] more autonomy, that too would make [the
municipality] the ‘original cause’ of [the plaintiff’s] injuries.” Id. Moreover, 10(j) immunity
“shall not apply to . . . any claim based upon the intervention of a public employee which causes

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injury to the victim or places the victim in a worse position than he was in before the
intervention.” Mass. Gen. Laws. ch. 258 § 10(j)(2).
Defendants contend that, to the extent that Plaintiff’s MTCA claim is based on alleged
negligent training and supervision, the claim must be dismissed because there is no actionable
underlying tortious conduct. See Def. Mem. 5-9 [#22]. Massachusetts allows “supervisory
negligence claims against municipalities where the municipality knew or should have known
about an underlying, identifiable tort which was committed by named or unnamed public
employees.” Def. Mem. 7 [#22] (quoting Kennedy v. Town of Billerica, 617 F.3d 520, 533 (1st
Cir. 2010)). Defendants contend that “neither Miller nor Rizzi committed a tortious act against
Plaintiff,” noting that the Massachusetts mandated reporter law, Mass. Gen. Laws ch. 119 § 51A,
does not contain a private right of action. Def. Mem. 8 [#22].
However, even where a statute does not provide for a private right of action, where “the
interest protected is physical or emotional harm, courts may consider the legislative purpose and
the values reflected in the statute to decide that the purpose and values justify adopting a duty
that the common law had not previously recognized.” Restatement (Third) of Torts ch. 7 § 38(c).
As such, to the extent that Town employees violated the mandatory reporting laws or other
school safety statutes, those violations may establish liability under the MTCA.
Moreover, Plaintiff’s complaint, identifies a number of affirmative acts aside from
negligent hiring, training, and supervision, which may have caused injury or placed Plaintiff in a
worse position. For example, Plaintiff points to “[t]he establishment of a system which allowed
Norton to remove Ms. Doe from the classes she should have been attending,” “[t]he provision of
afterhours facilities with a secluded room to Norton which facilitated his abuse of Ms. Doe,” and

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the conduct of an inadequate investigation into credible allegations of Norton’s misconduct.
Opp’n 4-5 [#27].
The court need go no further, as such allegations are sufficient, at this stage, to state a
claim under the MTCA. Defendant’s motion to dismiss Count I is therefore DENIED.
IV.

Conclusion
In light of the foregoing, Defendants’ Partial Motion to Dismiss the First Amended

Complaint [#21] is ALLOWED in part and DENIED in part. Count I (against the Town under
M.G.L. c. 258) shall proceed in its entirety. All claims in Count II are dismissed, except for
Plaintiff’s claims against the Town under M.G.L. 151c, and section 1983. All claims in Count III
are dismissed except for Plaintiff’s section 1983 claim against Miller. Count IV is dismissed in
its entirety.
IT IS SO ORDERED.
Date: April 25, 2018

/s/ Indira Talwani
United States District Judge

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