UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Michael and Ginger Fortin on behalf of Minor Child, TF

v. Civil No. 15-cv-179-JL Opinion No.

Hollis School District and Lisa Keehan

MEMORANDUM ORDER

The school district defendant’s liability in this

discrimination case turns on whether it may be held vicariously

liable under Title II of the Americans with Disabilities Act

(“ADA”),

et seq., for the actions of one of

its employees of which, the parties agree, it was not aware.

Lisa Keehan was a paraprofessional employed by the Hollis School

District to work one-on-one with TF, a child diagnosed with

autism. During a videorecorded classroom interaction, Keehan

grabbed and tugged TF’s ear. Michael and Ginger Fortin, TF’s

parents, bring this action on his behalf, asserting disability

discrimination claims against Hollis and a claim against both

Hollis and Keehan for common-law assault and battery. Hollis

has moved for summary judgment on the federal statutory claims,

arguing that it may not be held liable for Keehan’s actions

when, as the plaintiffs concede, it was unaware of them. The court has jurisdiction over this matter under

(federal question). After hearing oral argument, the

court grants Hollis’s motion in part and denies it in part. It

may not, as it argues, be held directly liable for Keehan’s

actions absent knowledge that those actions occurred. It may,

however, be held vicariously liable for those same actions under

the doctrine of respondeat superior if Keehan intentionally

discriminated against TF on the basis of his disability, an

issue that cannot be resolved at summary judgment.

Applicable legal standard

“The court shall grant summary judgment if the movant shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). The moving party must “assert the absence of a

genuine issue of material fact and then support that assertion

by affidavits, admissions, or other materials of evidentiary

quality.” Mulvihill v. Top-Flite Golf Co.,

(1st

Cir. 2003). “A genuine issue is one that could be resolved in

favor of either party, and a material fact is one that has the

potential of affecting the outcome of the case.” Vera v.

McHugh,

(1st Cir. 2010) (internal quotation

omitted).

2 Once the movant has made the requisite showing, “the burden

shifts to the summary judgment target to demonstrate that a

trialworthy issue exists.”

The nonmoving party “‘may not

rest upon the mere allegations or denials of [the] pleading, but

must set forth specific facts showing that there is a genuine

issue’ of material fact as to each issue upon which he or she

would bear the ultimate burden of proof at trial.” Santiago-

Ramos v. Centennial P.R. Wireless Corp.,

, 52–53 (1st

Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc.,

(1986)).

As it is obligated to do in the summary judgment context,

the court “rehearse[s] the facts in the light most favorable to

the nonmoving party (here, the plaintiff), consistent with

record support,” and gives him “the benefit of all reasonable

inferences that those facts will bear.” Noviello v. City of

Boston,

(1st Cir. 2005) (internal citation

omitted). The following background takes this approach.

Background

The minor on whose behalf this action was brought, TF, was

born in 2005. He has been diagnosed with autism, and has speech

and language disorders and a seizure disorder. In 2010, he

began attending kindergarten five afternoons a week at the

Hollis Primary School. The District, with input from his

3 parents, developed an Individualized Education Plan (“IEP”) for

TF and assembled a team of teachers, counselors, and other

professionals to assist in his education. The District also

assigned him a one-on-one paraprofessional during school hours.

Defendant Keehan served as one of his paraprofessionals during

the relevant time period.

On May 28, 2014, toward the end of TF’s third-grade year,

Keehan, reacting to TF’s perceived lack of responsiveness,

reached across a table and pulled his ear. Keehan was working

with TF behind a screen or partition, which she often did

because he could easily become distracted. On this particular

afternoon, another member of TF’s IEP team, Sherri Harris,

videotaped their interaction by holding a camera over the

partition.1 Harris viewed the footage the next day. She

immediately brought it to the attention of the school’s

administrator, who sent Keehan home and reported the incident to

the District’s Director of Student Services, Amy Rowe. Rowe

notified Ms. Fortin, showed her the video, and gave her a copy.

After a brief period of administrative leave, Keehan resigned

effective June 5, 2014.

1 According to the District, videotaping TF in the classroom “was part of developing his NH ALPS Alternate Assessment portfolio,” and thus was not a unique occurrence. Defendant’s Mem. (doc. no. 28-1) at 7.

4 The parties dispute whether Keehan engaged in similar

behavior with TF prior to this incident. The plaintiffs contend

that “the assault shown in the videotape was not an isolated

act,” which Hollis alleges it was, “but part of an ongoing

pattern of abuse against TF.”2 They do not dispute, however,

that Hollis “lacked prior notice of Lisa Keehan engaging in

assaults against TF . . . .”3

The plaintiffs filed this lawsuit on May 18, 2015. They

brought claims under § 504 of the Rehabilitation Act,

, (Count 1) and Title II of the ADA (Count 2) against

Hollis, and a claim for assault and battery (Count 3) against

both defendants. Hollis moved for summary judgment on Counts 1

and 2. In their objection, the plaintiffs stated an intention

to dismiss their Rehabilitation Act claim with prejudice4 and

disavowed any “failure to provide services” claim under the ADA

2 Plaintiffs’ Obj. (doc. no. 31-1) at 5. As evidence of this, the plaintiffs cite, among other things, see infra Part III.B.2, Keehan’s own admissions to Rowe that she had physically forced his hands off of a table and forced him to his knees earlier that same day, as well as a belief that grabbing TF’s ear or hair to get him to sit down was permitted by school district policy. Plaintiffs’ Obj. (doc. no. 31-1) at 4 (citing Rowe Dep. (doc. no. 31-5) at 67-68, 70). 3

. 4 Plaintiffs’ Obj. (doc. no. 31-1) at 2-3 (“[T]o simplify the legal issues, Plaintiff will file a Motion to withdraw Count I with prejudice.”). Plaintiffs’ counsel confirmed this withdrawal at oral argument.

5 separate from their disability discrimination claim.5 This

leaves before the court only the question of whether Hollis may

be held liable for Keehan’s actions under Title II of the ADA.

Analysis

Title II of the ADA provides 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 subjected to discrimination by any such entity.”

. Pursuant to the statute’s plain language, a

plaintiff seeking to recover under Title II of the ADA must

establish:

(1) that he is a qualified individual with a disability;

(2) that he was either excluded from participation in or denied the benefits of some public entity's services, programs, or activities or was otherwise discriminated against; and

(3) that such exclusion, denial of benefits, or discrimination was by reason of the plaintiff's disability.

Parker v. Universidad de Puerto Rico,

(1st Cir.

2000). “[P]rivate individuals may recover compensatory damages

5

(“The Court does not need to decide the legal sufficiency of this [failure to provide services] claim because Plaintiff does not allege it as an independent cause of action.”).

6 under § 504 and [ADA] Title II only for intentional

discrimination.”6 Nieves-Márquez v. Puerto Rico,

(1st Cir. 2003) (citing Alexander v. Sandoval,

,

280–81 (2001)).

The parties here agree, for purposes of this motion, that

TF is a qualified individual with a disability. The plaintiffs

allege the second two elements are met because TF was

discriminated against by reason of his disability when Keehan

used physical force to punish him.7 Hollis generally disputes

that use of physical force in this instance amounted to

disability-based discrimination,8 but focuses its arguments on

whether it may be held liable -- directly or vicariously -- for

Keehan’s actions.9 The court, likewise focusing on that issue,

concludes that, though Hollis may not be held directly liable

for those actions, it may face vicarious liability for an

employee’s intentional discrimination against TF on the basis of

his disability.

6 The plaintiffs seek only compensatory damages. See Compl. (doc. no. 1) at 6. 7 See Compl. (doc. no. 1) ¶ 33. 8 See Defendant’s Reply (doc. no. 33) at 4-8. 9 See Defendant’s Mem. (doc. no. 28-1) at 15-22.

7 A. Direct liability

In order to demonstrate intentional discrimination under

Title II of the ADA, most Courts of Appeals that have addressed

the question require the plaintiff to show at least “that a

defendant was deliberately indifferent to his statutory rights.”

McCullum v. Orlando Reg’l Healthcare Sys., Inc.,

,

1146–47 (11th Cir. 2014); see also J.V. v. Albuquerque Pub.

Sch.,

(10th Cir. 2016) (“We have recognized

that ‘intentional discrimination can be inferred from a

defendant’s deliberate indifference to the strong likelihood

that pursuit of its questioned policies will likely result in a

violation of federally protected rights.’” (citation omitted));

S.H. ex rel. Durrell v. Lower Merion Sch. Dist.,

(3d Cir. 2013) (“We now follow in the footsteps of a

majority of our sister courts and hold that a showing of

deliberate indifference may satisfy a claim for compensatory

damages under § 504 of the RA and § 202 of the ADA.”); Meagley

v. City of Little Rock,

(8th Cir. 2011) (“The

district court decided that deliberate indifference was the

appropriate standard for showing intentional discrimination in

this type of case. A number of other circuits have so ruled,

and we agree.”); S.S. v. E. Kentucky Univ.,

(6th Cir. 2008) (applying “deliberate indifference” standard);

Duvall v. Cty. of Kitsap,

, 1138 (9th Cir. 2001),

8 as amended on denial of reh’g (Oct. 11, 2001) (“To recover

monetary damages under Title II of the ADA or the Rehabilitation

Act, a plaintiff must prove intentional discrimination on the

part of the defendant. . . . We now determine that the

deliberate indifference standard applies.”); Bartlett v. New

York State Bd. of Law Examiners,

, 331 (2d Cir.

1998), judgment vacated on other grounds,

(1999)

(“[I]ntentional discrimination may be inferred when a

‘policymaker acted with at least deliberate indifference to the

strong likelihood that a violation of federally protected rights

will result from the implementation of the [challenged] policy .

. . [or] custom.’” (quoting Ferguson v. City of Phoenix,

(D. Ariz. 1996)) (alterations in original)).10

The First Circuit Court of Appeals has not directly

addressed the question of which standard applies to show

intentional discrimination by the school district under the ADA

when a school district employee acts against a child with a

disability. It has, however, suggested that a plaintiff “may”

need to make “some showing of deliberate indifference not

10Several of these decisions require that a “policymaker” act with deliberate indifference, or that the institution act with deliberate indifference that its “policies” would violate a plaintiff’s rights. E.g., Durrell,

; Bartlett, 156 F.3d at 331. Neither party has argued, here, that liability must be so limited.

9 required by” the Individuals with Disabilities Education Act

(IDEA), 20 U.S.C. §§ 1400–1491, to recover under § 504 of the

Rehabilitation Act. Nieves-Márquez,

n.17.

Because the First Circuit Court of Appeals, “[i]n applying Title

II [of the ADA]. . . rel[ies] interchangeably on decisional law

applying § 504,” Parker,

, this court may

reasonably assume that it would apply at least the “deliberate

indifference” standard to ADA-based discrimination claims. See

also

at 4 & n.2 (noting that Title II of the ADA “is modeled

on § 504 of the Rehabilitation Act,” and “essentially extends

the reach of § 504 to state and local governmental entities that

do not receive federal financial assistance.”).

Under similar circumstances, the First Circuit Court of

Appeals has required an even more exacting showing to

demonstrate intentional discrimination. Specifically, the court

distinguished between the requisite showing to prove claims

brought under IDEA for a school district’s failure to provide a

free appropriate public education (FAPE) from discrimination

claims brought under § 504 of the Rehabilitation Act and

Title II of the ADA for the same actions. To prevail on the

former, it explained, “a plaintiff must show that he or she has

a qualifying disability and has been denied a FAPE,” whereas to

prevail on the latter, “a plaintiff must make an additional

showing that the denial resulted from a disability-based

10 animus.” D.B. ex rel. Elizabeth B. v. Esposito,

(1st Cir. 2012). See also Durrell,

(characterizing the First Circuit Court of Appeals’s decision in

Nieves-Márquez as “suggest[ing] that plaintiffs seeking

compensatory damages [under the ADA] must demonstrate a higher

showing of intentional discrimination than deliberate

indifference, such as discriminatory animus.”).

This court need not decide definitively on which standard

governs because the plaintiffs concede that they are unable to

make the requisite showing under even the lower, “deliberate

indifference” standard.11 See Doe v. Bradshaw,

, 191 (D. Mass. 2016) (Woodlock, J.) (interpreting Nieves-

Márquez and Esposito to require at least deliberate indifference

on part of school district under Title II of the ADA and

performing analysis under that standard). “Deliberate

indifference requires both knowledge that a harm to a federally

protected right is substantially likely, and a failure to act

upon that the likelihood.” Duvall, 260 F.3d at 1139 (citing

City of Canton v. Harris,

(1988)); see also

Santiago v. Puerto Rico,

(1st Cir. 2011) (in the

Title IX context, “the deliberate indifference standard . . .

demands that [the defendant] be shown to have had actual

11 Plaintiffs’ Obj. (doc. no. 31-1) at 2.

11 knowledge of the harassment” and to have failed to take remedial

action). The plaintiffs here concede that Hollis “was unaware

of the assaults [on TF] until after they occurred.”12 Absent

such knowledge, Hollis cannot have been deliberately indifferent

to the actions taken against TF by its employee. There is,

accordingly, no dispute of material fact as to whether Hollis

intentionally discriminated against TF.

B. Vicarious liability

Recognizing the difficulty of proving Hollis’s deliberate

indifference, the plaintiffs argue that Hollis is instead

“strictly responsible for the acts of [its] agent,” so long as

the agent, as distinct from the principal, intended to

discriminate against TF -- which, plaintiffs contend, Keehan

did.13 Hollis contends that such vicarious liability does not

apply under Title II of the ADA and that, even if it did, the

plaintiffs have not raised a question of material fact as to

whether Keehan violated TF’s rights under the ADA.

12 Plaintiffs’ Obj. (doc. no. 31-1) at 2. 13Id. As they point out, see Plaintiffs’ Reply (doc. no. 34) at 2, and as discussed infra Part III.B.2, the question of Keehan’s intent is one for the jury.

12 1. Availability of vicarious liability

Several Courts of Appeals have concluded that “that when a

plaintiff asserts a cause of action against an employer-

municipality, under either the ADA or the [Rehabilitation Act],

the public entity is liable for the vicarious acts of any of its

employees as specifically provided by the ADA.” Delano-Pyle v.

Victoria Cty.,

, 574–75 (5th Cir. 2002) (citing

Duvall, 260 F.3d at 1141; Silk v. City of Chicago,

(7th Cir. 1999); Rosen v. Montgomery Cty.,

(4th Cir. 1997); Mason v. Stallings,

(11th

Cir. 1996)). Though the First Circuit Court of Appeals has not

addressed the question, and the Supreme Court recently declined

to do so, City & Cty. of San Francisco, Calif. v. Sheehan,

, 1773–74 (2015), courts in this Circuit have

acknowledged that an employer may be held vicariously liable for

an employee’s violation of § 504 of the Rehabilitation Act,

Penney v. Town of Middleton,

(D.N.H. 1994)

(Barbadoro, J.); Glanz v. Vernick,

, 636–37 (D.

Mass. 1991). It must be acknowledged that these decisions

predate the Supreme Court’s holding in Gebser v. Lago Vista

Indep. Sch. Dist.,

(1998), that Title IX, a

funding statute,14 does not support vicarious liability. Courts

14Title IX of the Education Amendments of 1972,

et seq., § 504 of the Rehabilitation Act, and Title II

13 have more recently taken Gebser into account and concluded that

vicarious liability may yet be available under the ADA and

Rehabilitation Act. See, e.g., Reed v. State of Illinois,

No. 12-CV-7274,

, at *3 (N.D. Ill. May 9, 2016)

(concluding, after considering Gebser and relevant Seventh

Circuit precedent, that vicarious liability may apply).

Under circumstances almost identical to this case, where a

teacher physically assaulted an autistic student, the District

Court for the Northern District of California recently concluded

that the school district “is liable in respondeat superior for

the acts of its employees” under Title II of the ADA for the

abuse so long as the plaintiff demonstrated “that the

perpetrator of the alleged abuse,” that is, the teacher “was

deliberately indifferent to her rights.” K.T. v. Pittsburg

Unified Sch. Dist.,

(N.D. Cal. 2016).

of the ADA all share similar wording with Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. The remedies available under the ADA and the Rehabilitation Act are drawn from Title VI. 29 U.S.C. § 794a (§ 504 incorporates Title VI's remedies);

(Title II incorporates § 504's remedies). Title VI, § 504, and Title IX were all enacted through Congress’s power under the Spending Clause, U.S. Const. art. I, § 8, cl. 1. See Gebser,

.

Title II of the ADA, on the other hand, like Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(a), was enacted under the power granted Congress through § 5 of the Fourteenth Amendment. See Tennessee v. Lane,

(2004).

14 Hollis argues that the Supreme Court’s exclusion of such

vicarious liability under the similarly-worded Title IX in

Gebser,

, should extend to the § 504 of the

Rehabilitation Act and Title II of the ADA. The Supreme Court

concluded that “Congress did not intend to allow recovery in

damages” under Title IX or the similarly-enacted Title VI “where

liability rests solely on principles of vicarious liability or

constructive notice,” in part because an entity receiving

federal funding ought be afforded an opportunity to remediate

discrimination by its employees before having its funding

revoked. Id. at 287-88. “That contractual framework

distinguishes Title IX from Title VII, which is framed in terms

not of a condition but of an outright prohibition,” regardless

of federal funding. Id. at 286.

As the plaintiffs point out, Title II of the ADA, like

Title VII, was enacted under the power granted to Congress by

§ 5 of the Fourteenth Amendment and is an outright prohibition

on discrimination. They argue, therefore, that the court should

look to Title VII, which permits an employer to be held

vicariously liable “[w]hen a supervisor’s harassment of an

employee results in a ‘tangible employment action against the

employee’ . . . .”15 Agusty-Reyes v. Dep’t of Educ. of Puerto

15Hollis argues that, even if such vicarious liability applied in this case, it could not be held so liable because Keehan is

15 Rico,

, 53 (1st Cir. 2010) (quoting Burlington

Indus., Inc. v. Ellerth,

(1998)). The

plaintiffs have not, however, cited a single case in which any

court has applied Title VII’s respondeat superior standard to

the Title II context.

The court is thus reluctant to wade into the question of

whether Title II of the ADA more closely resembles Title IX,

which it does in structure, or Title VII, which it does in

Constitutional provision under which Congress authorized the

statute. Most relevant to this court is the fact that all

Courts of Appeals that have considered the issue appear to

permit an employer to be held vicariously liable under Title II

for intentional discrimination by its employees.16 Hollis has

not a supervisor as understood and regulated under Title VII. See Defendant’s Reply (doc. no. 33) at 3. Though the court need not reach this issue because it does not draw on Title VII for its respondeat superior analysis, it notes that Keehan was in a position of authority over the child whom she was alleged to have discriminated against and in that sense, at least, was his “supervisor.” 16As the plaintiffs noted at oral argument, Title II of the ADA “does not provide for claims against individuals in their individual capacities.” Abbott v. Town of Salem,

(quoting Miller v. King,

(11th Cir. 2004)). “Only public entities are subject to Title II.” San Francisco,

. The absence of vicarious liability under circumstances such as these may therefore leave plaintiffs in this position without a remedy where a teacher has taken pains to hide the assaultive conduct from the school district, frustrating the ADA’s directive “to provide a clear and comprehensive national mandate for the elimination of

16 offered no authority holding the contrary under Title II or the

Rehabilitation Act.17 Thus, Hollis has failed to establish as a

matter of law that it may not be held vicariously liable for

Keehan’s actions.

2. Disputes of material fact

Hollis argues that, even if the ADA permits vicarious

liability for Keehan’s actions, there is no dispute of material

fact over whether Keehan intentionally discriminated against TF

on the basis of his disability.18 The court disagrees.

discrimination against individuals with disabilities.” Parker,

(quoting

(b)(1)). 17Hollis relies on two cases to support its position, neither of which prevents vicarious liability in this situation. In S.B. v. Bd. of Educ. of Harford Cty.,

(4th Cir. 2016), the Fourth Circuit Court of Appeals held that a county board of education could not be held vicariously liable for one student’s harassment of another under the Rehabilitation Act. This case is inapposite because it addressed vicarious liability for the actions of a non-employee.

The Eleventh Circuit Court of Appeals, relying on Gebser, concluded that the deliberate indifference of a hospital’s medical personnel could not be imputed to the hospital itself for purposes of determining the hospital’s own direct liability under the Rehabilitation Act. Liese v. Indian River County Hosp. Dist.,

(11th Cir. 2012). The court did not directly address the question of vicarious liability, which it found the plaintiff had waived, but “note[d] that several circuits have found respondeat superior liability to apply to suits brought under the Rehabilitation Act.”

at 349 n.10 (citing Delano–Pyle, 302 F.3d at 574–75; Duvall, 260 F.3d at 1141; Rosen,

n.3; Patton v. Dumpson,

, 942–43 (S.D.N.Y. 1980)). 18 Defendant’s Reply (doc. no. 33) at 4-8.

17 As Hollis conceded at oral argument, physically assaultive

conduct can constitute disability-based discrimination. Against

that backdrop, the plaintiffs have raised at least one

significant question of fact: whether Keehan grabbed his ear

only once or engaged in a pattern of discriminatory assaultive

behavior against him. Hollis argues that, as an isolated

incident, Keehan’s behavior was not “sufficiently severe,

pervasive, and objectively offensive” to amount to disability-

based discrimination.19 Because the plaintiffs can produce

direct evidence of only one instance of Keehan using force with

TF, Hollis contends, they cannot demonstrate the severity and

pervasiveness of her behavior.

There is, however, additional evidence from which a jury

could conclude that Keehan engaged in a pattern of such conduct.

Though there is no video evidence of other physical

19Id. at 7. Hollis draws this standard from cases addressing a school district’s direct liability for student-on-student harassment. See Harford Cty.,

(citing Davis v. Monroe Cty. Bd. of Educ.,

(1999)). The court is not convinced that a teacher’s intentional discrimination requires such “severe, pervasive, and objectively offensive” behavior. See Pittsburg,

(requirement that non-verbal autistic student “need only allege that the perpetrator of the alleged abuse was deliberately indifferent to her rights” satisfied where teacher “knew about [the student's] disability but . . . still went forward with the alleged abuse.”). But, as the plaintiffs point out, see Plaintiffs’ Surreply (doc. no. 34) at 4, even if that standard applies here, a dispute of fact remains as to whether it is met.

18 interactions, Keehan appears to have admitted to Rowe that she

forced TF’s hands off a table and forced him to his knees

earlier that same day.20 She further informed Rowe that she

thought school district policy permitted ear grabbing and hair

pulling as methods of keeping TF seated during lessons,21 from

which a jury could infer that the videotaped ear-pulling

incident was not an isolated incident. She never affirmatively

stated that it was.22 The fact that she took such an action

knowing that she was being videotaped and did not herself

affirmatively report it as an isolated occurrence born of

frustration further supports that inference.

The plaintiffs also raise the number of visits TF made to

the school nurse and his family doctor, and a repetitive

complaint of ear pain absent any infection.23 Though, as Hollis

points out, this circumstantial evidence is in no way

definitive, drawing all inferences in the plaintiffs’ favor --

as the court must in this procedural posture -- a reasonable

20Plaintiffs’ Obj. (doc. no. 31-1) at 4 (citing Rowe Dep. (doc. no. 31-5) at 67-68, 70). 21

22 Plaintiffs’ Surreply (doc. no. 34) at 4. 23Plaintiffs’ Obj. (doc. no. 31-1) at 4-5 (citing Michael Fortin Dep. (doc. no. 31-6) at 23-24; Varanese Dep. (doc. no. 31-7) at 26-27).

19 jury could conclude from it that Keehan engaged in an ongoing

pattern of assaultive conduct.

Keehan’s intent also remains an unresolved question of

material fact. Before Hollis can be held vicariously liable,

the plaintiffs must demonstrate that Keehan intentionally

discriminated against him on the basis of his disability. See

Nieves-Márquez,

. Intentional discrimination

requires at least deliberate indifference and, at most,

discriminatory animus. See supra Part III.A. The record

evidence does not conclusively establish that Keehan acted with

the requisite intent, leaving this a question for the jury to

resolve. See Petitti v. New England Tel. & Tel. Co.,

(1st Cir. 1990) (“Intent to discriminate is a question of

fact and [the court] must leave this determination to the

jury.”).

With disputes of fact such as these in play -- disputes

that touch on the most basic elements of the plaintiffs’ claims

-- the court must deny Hollis’s motion for summary judgment on

the issue of vicarious liability.

20 Conclusion

For the reasons set forth above, the court GRANTS Hollis’s

motion for summary judgment24 as to its own direct liability, but

DENIES it as to its vicarious liability for Keehan’s actions.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: September 18, 2017

cc: H. Jonathan Meyer, Esq. Brian J.S. Cullen, Esq. Charles P. Bauer, Esq. Matthew Vernon Burrows, Esq.

24 Document no. 28.

21