Bethany T . v . Raymond School, et a l . 11-CV-464-SM 5/10/13 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Bethany T., as next friend and on behalf of T.T., a minor, Plaintiff

v. Case N o . 11-cv-464-SM Opinion N o .

Raymond School District with School Administrative Unit 3 3 , Superintendent D r . Jean Richards, in her individual and official capacity, Principal M r . Kirk Beitler, in his individual and official capacity, and Assistant Principal M s . Jayme Rodriguez, in her individual and official capacity, Defendants

O R D E R

Defendants move for summary judgment on all counts (doc. n o .

28). For the following reasons, the motion is granted in part

and denied in part.

Title VI Claim (Count I)

Plaintiff brings her Title VI claim (Count I ) against all

defendants. Individuals, however, cannot be held liable under

that statutory provision. See Shotz v . City of Plantation,

, 1169-71 & n . 11 (11th Cir. 2003) (collecting cases);

Thomas v . Salem State Univ. Found., Inc.,

, at *6

(D. Mass. Oct. 1 8 , 2011); Howard v . Feliciano,

, at *10 (D.P.R. Aug. 8 , 2008). Summary judgment in favor of the

individual defendants on plaintiff’s Title VI claim i s ,

therefore, warranted.

Summary judgment on plaintiff’s Title VI claim as asserted

against the school district and the school administrative unit,

however, is not subject to summary disposition. The central

issue is whether the District was deliberately indifferent to the

alleged student-on-student harassment.1 See Bryant v . Indep.

Sch. Dist. N o . I-38,

2 8 , 931-34 (10th Cir. 2003)

(applying deliberate indifference standard to peer racial

harassment claim under Title VI) (relying on Davis v . Monroe Cty.

Bd. Of Educ.,

(1999) (applying deliberate

indifference standard to peer harassment claim under Title I X ) ) .

See also Zeno v . Pine Plaines Cent. Sch. District,

(2d Cir. 2012) (applying deliberate indifference standard to

peer racial harassment claim under Title V I ) ; Saxe v . State Coll.

Area Sch. Dist.,

0 0 , 206 & n . 5 (3d Cir. 2001) (same,

1 Defendant also argues that, as a matter of law, the racial harassment was not “severe, pervasive, and objectively offensive.” Davis,

. A reasonable jury, however, could conclude that the harassment, which included a cross- burning threat and direct references to the infamous Ku Klux Klan, was “more than the sort of teasing and bullying that generally takes place at schools.” Sanches v . Carrollton-Farmers Branch Indep. Sch. Dist.,

(5th Cir. 2011). Context is everything in such cases, and that appears, on this record, to be a disputed factual matter.

2 and noting that Davis’ deliberate indifference standard “applies

equally” to Title VI harassment claims).

Deliberate indifference is shown where the “funding

‘recipient’s response to the harassment or lack thereof [was]

clearly unreasonable in light of the known circumstances.’”

Brodeur v . Claremont Sch. Dist.,

(D.N.H.

June 1 2 , 2009) (Laplante, J.) (quoting Davis,

4 8 ) .

See also Fitzgerald v . Barnstable Sch. Comm.,

(1st Cir. 2007) (The “proper inquiry is limited to whether the

school actions were so lax, so misdirected, or so poorly executed

as to be clearly unreasonable under the known circumstances”)

rev’d on other grounds

(2009). Although, “[i]n an

appropriate case” a court may decide, as a matter of law, that

the defendant acted with deliberate indifference, Davis,

, deliberate indifference usually presents a jury question.

See e.g., Patterson v . Hudson Area Schools,

3 8 , 449-50

(6th Cir. 2009) (“It is for a jury to decide if Hudson’s actions

were ‘clearly unreasonable.’”).

The school district here posits that this is an appropriate

case for summary judgment because the basic facts about what

actions it took in response to the alleged harassment are not in

serious dispute. Those basic facts, however, give rise to

3 competing inferences about the reasonableness of the district’s

actions in light of the known circumstances. See generally

Rockwell Graphic Sys., Inc. v . DEV Indus.,

7 4 , 180 (7th

Cir. 1991) (Posner, J.) (“[W]hat is reasonable is itself a fact

for purposes of Rule 56 of the civil rules.”); Lipsett v . Univ.

of Puerto Rico,

(D.P.R. 1986) (“If from an

agreed set of facts one finds that reasonable jurors could draw

an inference determinative of the opposing party's claim, then

summary judgment would be improper.”), citing Taylor v .

Gallagher,

(1st Cir. 1984). Here, for the reasons

set forth in plaintiff’s brief, “[a] jury could find . . . that

the investigative or the corrective aspect of the District’s

response to the incidents as a whole was so lacking as to amount

to deliberate indifference.” Brodeur,

(denying motion for summary judgment on Title IX sexual

harassment claim). See also Patterson,

(“We

cannot say that, as a matter of law, a school district is

shielded from liability if [it] knows that its methods of

response . . . , though effective against an individual harasser,

are ineffective against persistent harassment against a single

student. Such a situation raises a genuine issue of material

fact for a jury to decide.”).

4 Section 1983 Equal Protection Claim (Count II)

“Ordinarily, the issue of whether a municipality had a

custom or policy that caused a violation of a plaintiff’s rights

is a jury question.” Logiodice v . Trustees of Maine Central

Inst.,

6 , 31 (D. M e . 2001) (citing Trevino v .

Gates,

1 1 , 920 (9th Cir. 1996)), aff’d

(1st

Cir. 2002). Nevertheless, summary judgment is “appropriate i f ,

on the given facts, no reasonable jury could conclude that the

municipality had such a policy or custom.” Id.

Here, defendants’ argument with regard to policy, practice,

or custom is not well-developed, and is insufficient to support

entry of judgment. The core of the argument consists of little

more than a general assertion of the absence of policy or

practice evidence. See Def. Br., doc. n o . 28-1, at 2 9 . But

school principals and superintendents may be “policymakers” for

purposes of school discipline, see e.g., Radideau v . Beekmantown

Cent. Sch. Dist.,

(N.D.N.Y. 2000), and,

as plaintiff points out, the actions or inactions of policymakers

may evidence a custom or practice of the municipality. See

generally City of Canton v . Harris,

7 8 , 388-89 (1989).

There appears to be a triable issue regarding the municipal

defendants’ policies, practices, or customs, at least in that

respect.

5 Defendants suggest that the deliberate indifference standard

for harassment claims brought under the Equal Protection Clause

is higher than, say, the deliberate indifference standard under

Title V I . Defendants raised the issue for the first time in

their reply brief, and further, cite to and argue from two Second

Circuit Court of Appeals decisions that do not support their

argument. In those cases the court held that, where plaintiff

alleges that the defendant inadequately responded to racial

harassment, deliberate indifference by the school administrators

is sufficient to establish intentional discrimination in the

equal protection context. See Destiso v . Cook,

(2d Cir. 2012) (holding that deliberate indifference standard

applies in equal protection context where racial harassment is

alleged); Gant ex r e . Gant v . Wallingford Bd. of Educ.,

, 140 (2d Cir. 1999) (same). There is no meaningful

difference between the standard applied in those cases and in

Title VI cases, where deliberate indifference in the harassment

context is also regarded as equivalent to intentional

discrimination.

For these reasons, defendants have not met their burden to

show that they are entitled to judgment as a matter of law with

regard to plaintiff’s Section 1983 claim. Defendants’ motion for

summary judgment as to Count II is denied.

6 Qualified Immunity – Federal Law Claims

The individual defendants say they are entitled to qualified

immunity under the authority of Harlow v . Fitzgerald,

(1982), but the argument is weak and undeveloped.

Defendants conclusively assert that they “were not deliberately

indifferent to the allegations of harassment.” Def. Br., doc.

n o . 28-1 at 3 4 . But, there is a triable issue of fact regarding

the adequacy of defendants’ response to the harassment, and on

this record, a reasonable jury could find otherwise.

Absolute Immunity Under the Coverdell Act

Defendants claim that they are entitled to absolute immunity

under the Coverdell Act,

et seq. The Act

provides, in pertinent part, that “no teacher in a school shall

be liable for harm caused by an act or omission of the teacher on

behalf of the school.”

at § 6736. For immunity to attach,

the “actions of the teacher,” must have been “carried out in

conformity with Federal, State, and local laws,” and the harm

must not have been “caused by willful or criminal misconduct,

gross negligence, reckless misconduct, or a conscious, flagrant

indifference to the rights or safety of the individual harmed by

the teacher.” Id. at § 6736(a)(2), 6736(a)(4).

7 Because there is a triable issue as to whether defendants

violated Title V I , they do not qualify for Coverdell immunity, as

a matter of law, i.e., as educators who “carried out [their

actions] in conformity with Federal . . . law.” Moreover,

because the record as it stands could support a jury’s conclusion

that defendants were deliberately indifferent to the harassment,

it necessarily could also support the conclusion that the

defendants were grossly negligent.

Summary judgment on the basis of immunity under the

Coverdell Act i s , therefore, unwarranted.

RSA 354-B Claim (Count III)

RSA 354-B:2 authorizes the state attorney general to “bring

a civil action for injunctive or other appropriate equitable

relief” if he “has probable cause to believe the any person has

violated any provision” of the state civil rights act. N.H. Rev.

Stat. Ann. (“RSA”) 354-B:2. Defendants move for summary judgment

on plaintiff’s RSA 354-B:2 claim (Count III) on the ground that

only the attorney general is authorized to bring suit under that

statutory provision. Plaintiff apparently agrees, as she has

offered no objection or challenge to the argument.

8 Summary judgment in favor of all defendants on Count I I I ,

therefore, is warranted.

Intentional Infliction of Emotional Distress (Count IV)

To prove her claim for intentional infliction of emotional

distress, plaintiff must show that defendants (1) acted

intentionally or recklessly; (2) that their acts were extreme and

outrageous; and (3) that their acts caused the plaintiff to

suffer severe emotional distress. Morancy v . Morancy,

(1991). Defendants will be liable only if their conduct

was “outrageous in character, and so extreme in degree, as to go

beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community.’”

Mikell v . Sch. Admin. Unit N o . 3 3 ,

(2009)

(quoting Rest. 2d Torts § 4 6 ) . The standard’s bar is so high as

to be “formidable.” Brodeur,

(Laplante,

J.).

Considering the facts of record, and indulging all

reasonable inferences in plaintiff’s favor, there does not appear

to be a triable issue for the jury on the element of “extreme and

outrageous” conduct. As noted, a jury could find that defendants

had knowledge of the alleged harassment and a duty to act in a

timely and effective manner, but failed — even failed because

9 they were deliberately indifferent — though they took some

remedial or preventative action. However, given the remedial and

preventative steps taken, a jury may well not find deliberate

indifference. More to the point, on this record a jury could not

reasonably find that defendants’ at most indifferent conduct was

“beyond all possible bounds of decency,” or “utterly intolerable

in a civilized community.” Here, as in Brodeur, although a

reasonable jury could find that the school administrators acted

with deliberate indifference towards the harassment, their

conduct did not come close to being extreme or outrageous. See

Brodeur,

(denying summary judgment on

Title IX deliberate indifference claim and granting summary

judgment in favor of defendants on intentional infliction of

emotional distress claim; despite “the stringency of” the

deliberate indifference standard, “the test for intentional

infliction of emotional distress is even higher,” and was not

met) (Laplante, J . ) . See also Mikell,

(“While

there is no question that a teacher falsely reporting misconduct

by a student is a reprehensible act, the circumstances of this

case are simply not ‘beyond all possible bounds of decency.’”).

Summary judgment in favor of defendants i s , therefore,

warranted on plaintiff’s intentional infliction of emotional

distress claim (Count I V ) .

10 Negligence (Count V)

Defendants first argue that they are entitled to immunity

under RSA 507-B on plaintiff’s state law negligence claim (Count

V).2 The statute provides that “[n]o governmental unit shall be

liable in any action to recover for bodily injury, personal

injury or property damage except as provided by this chapter or

as is provided or may be provided by other statute.” RSA 507-

B:5. The statute further specifies that “[a] governmental unit

may be held liable for damages in an action to recover for bodily

injury, personal injury or property damage caused by its fault or

by fault attributable to i t , arising out of ownership,

occupation, maintenance or operation of all motor vehicles, and

all premises . . .” RSA 507-B:2.

The statute also provides that the limitations of liability

enjoyed by municipalities are equally available to their

employees, so long as the employees acted “within the scope of

[their] office and in good faith.” RSA 507-B:4(IV).

Defendants contend that the statute limits permissible

actions against municipalities to those involving personal

injuries arising from a municipality’s operation or maintenance

2 Because summary judgment is granted on the intentional infliction of emotional distress claim, the statutory immunity issue is relevant only to the negligence claim.

11 of “motor vehicles” or “premises,” or to those which have been

otherwise “provided by [state] statute.” Because, say

defendants, plaintiff’s common law claim for negligence is not a

statutory claim, they are entitled to immunity.

The court in Farrelly v . City of Concord,

,

at *1 (D.N.H. Dec. 2 0 , 2012) (McCafferty, M . J . ) , recently noted

that the scope of immunity under RSA 507-B has “been subject to

little or no development in the opinions of the New Hampshire

Supreme Court.”

(vacating its prior decision that rejected

defendants’ narrow reading of RSA 507-B, and declining

supplemental jurisdiction over state law claims in light of

unsettled nature of state l a w ) . Some New Hampshire cases,

however, as well as a recent decision from this court, support

defendants’ argument that RSA 507:B confers on the municipal

defendants immunity from plaintiff’s negligence claim. See e.g.,

Farm Family Casualty Ins. C o . v . Town of Rollinsford,

(2007); Bowser v . Town of Epping, N o . 218-2009-CV-232

(Rockingham Cty. Superior Court, June 3 0 , 2010); Foley v . Town of

Lee,

9 , 53 (D.N.H. 2012) (Laplante).

New Hampshire’s law is hardly settled with respect to RSA

507:B’s reach, but, plaintiff’s failure to meaningfully address

the municipal defendants’ claim to statutory immunity, see P l .

12 Br., doc. n o . 32-1, at 45-46, is construed as a concession that

the school district and the school administrative unit are

entitled to immunity on the negligence claim. Put differently,

defendants have demonstrated their entitlement to statutory

immunity and plaintiffs have not called that claim into question,

nor shown that a dispute about material facts warrants denial of

the motion.

With regard to the individual defendants, plaintiff has

adequately shown that a material factual dispute exists regarding

their good faith, such that the court cannot say, as a matter of

law, that they are entitled to immunity under RSA 507-B:4(IV).

In addition, the individual defendants are not entitled to

summary judgment on an alternative ground — that there is no

material factual dispute as to whether they were negligent. For

the same reasons that a jury could find that defendants were

deliberately indifferent to the racial harassment, they could

easily find that they are liable under the less stringent

negligent standard.

13 Conclusion

For the foregoing reasons, defendants’ motion for summary

judgment, doc. n o . 2 8 , is granted in part and denied in part, as

discussed above.

SO ORDERED.

Steven J. McAuliffe ^United States District Judge

May 1 0 , 2013

cc: Jon N . Strasburger, Esq. Karen E . Hewes, Esq. Brian J. S . Cullen, Esq.

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