Tveter v. Derry Coop. Sch. Dist. Sau

Elizabeth Tveter et al. v. Derry Cooperative School District SAU # 10, et al.

Case No. 16-cv-329-PB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

April 25, 2017

REPORT AND RECOMMENDATION

Pro se plaintiffs Elizabeth Tveter and Holly Tveter¹ have filed a complaint against multiple defendants,² alleging various violations of federal law (Doc. No. 1). This matter is before the undersigned magistrate judge for preliminary review to determine whether the complaint asserts any claim upon which relief might be granted. See 28 U.S.C. § 1915(e)(2)(B); LR 4.3(d)(2).

Standard of Review

In determining whether a pro se pleading states a claim, the court construes the pleading liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Disregarding any legal conclusions, the court considers whether the factual content inthe pleading and inferences reasonably drawn therefrom, taken as true, state a facially plausible claim to relief. Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

Background

Elizabeth Tveter is a disabled adult who, at the time her complaint was filed, was enrolled at Pinkerton Academy High School ("Pinkerton"). Holly Tveter is Elizabeth's mother and is also disabled. As plaintiffs share a last name, the court will refer to them by their first names in this Report and Recommendation, for clarity. Pinkerton is an independent high school which contracts with the Derry Cooperative School District SAU #10 ("School District") to provide public high school education for the School District's students. The School District and Pinkerton will be collectively referred to in this Report and Recommendation as the "institutional defendants."

Laura H. Nelson is employed by the School District as superintendent of schools ("Superintendent Nelson"). Gerald Griffin Morse is the Headmaster at Pinkerton ("Headmaster Morse"). Heather Haas Derochers is the 504 Coordinator at Pinkerton ("Coordinator Derochers"). Until July 1, 2016, Christopher Harper was Dean of Academics at Pinkerton ("Dean Harper"), Glenn Ahrens was Dean of Students at Pinkerton ("DeanAhrens"), Timothy Powers was Athletic Director at Pinkerton ("Athletic Director Powers"), and Jennifer Resmini was the varsity field hockey coach at Pinkerton ("Coach Resmini"). David Siff is an attorney who served as the hearing officer at a due process hearing discussed in greater detail below ("Attorney Siff"). These defendants will be referred to collectively as the "individual defendants" in this Report and Recommendation. The individual defendants are sued in both their official and personal capacities.

I. Elizabeth's Experience at Pinkerton

Plaintiffs allege that on January 5, 2014, Elizabeth suffered a severe traumatic brain injury during athletic training. The injury left Elizabeth cognitively impaired, and she was diagnosed as legally disabled. Elizabeth took an extended medical leave of absence from Pinkerton, finally returning full time in August of 2015 under a 504 plan.

Prior to her injury, Elizabeth was a starter on the Pinkerton varsity field hockey team. Elizabeth was medically cleared to return to the field hockey team in September of 2015. Elizabeth was required to wear protective head gear, but was otherwise cleared to fully participate. Plaintiffs contend that Elizabeth's playing time was nevertheless restricted and that when Holly complained, it was further restricted.

Plaintiffs allege that once Elizabeth returned to the field hockey team, other girls on the team started to bully her. Elizabeth was not bullied prior to becoming disabled, and non-disabled students were not bullied. Both Elizabeth and Holly filed numerous complaints regarding this bullying, but none of the defendants intervened, allowing the bullying to continue and escalate.

On October 29, 2015, Elizabeth was reinjured during field hockey practice when another member of the team struck a ball toward Elizabeth, who was standing on the sidelines putting on her protective headgear, and that ball struck Elizabeth in the head. Plaintiffs claim that Elizabeth suffered a severe concussion, which necessitated Elizabeth taking a second medical leave of absence from Pinkerton from October 30, 2015, until February of 2016.

During this second leave of absence, Elizabeth and Holly made multiple requests for tutoring, direct instruction, class work, handouts, teacher's notes, and homework assignments. The defendants denied those requests without providing written notice or holding a 504 team meeting. Elizabeth was thus unable to teach herself or receive instruction from a private tutor. Plaintiffs informed the defendants on multiple occasions that the defendants were violating Elizabeth's 504 plan, but the defendants refused to include Elizabeth or Holly in thedecision-making process.

On January 4, 2016, Elizabeth was cleared to return to Pinkerton for forty-five minutes per day to attend a physical education class for disabled students. On January 7, 2016, a student aide for the class, who had previously bullied Elizabeth, struck Elizabeth in the head, reinjuring Elizabeth's brain. Plaintiffs allege that this event and the October 29, 2015 event resulted in Elizabeth possibly sustaining permanent brain injuries.

In the spring of 2016, Elizabeth was a member of the Pinkerton varsity tennis team. Plaintiffs claim that Elizabeth was required to wear a red shirt while the other members of the team all wore white shirts, which resulted in Elizabeth being excluded from team photographs.

II. Sexual Harassment³

Plaintiffs allege that Elizabeth was subject to sexual harassment by Athletic Director Powers. Plaintiffs claim that Athletic Director Powers would attend Elizabeth's field hockeygames and tennis matches and stare at Elizabeth. They further allege that during tennis practices and matches, Athletic Director Powers would follow Elizabeth from court to court. Holly filed sexual harassment complaints concerning this behavior with Pinkerton, the School District, Athletic Director Powers, Dean Ahrens, Headmaster Morse, Superintendent Nelson, and the United States Department of Education Office of Civil Rights. According to the complaint, investigations were started in April and May of 2015, a meeting was held in May of 2015, and a safety plan was created for Elizabeth requiring Athletic Director Powers to stay away from her. Plaintiffs claim that Athletic Director Powers nonetheless continued to attend Elizabeth's games and matches and interacted with her at social events. Plaintiffs further claim that they have never received final decisions from the April and May of 2015 investigations, despite multiple requests.

Plaintiffs contend that Athletic Director Powers was observed lingering in the lobby and peering through the window of a classroom in which Elizabeth was attending summer class. Holly requested that Pinkerton, the School District, Headmaster Morse, and Superintendent Nelson require that Athletic Director Powers use an alternative door and not walk by that window while Elizabeth was in class. The request was refused. A meeting was held on July 16, 2016 concerning new concerns about AthleticDirector Powers's conduct toward Elizabeth. An investigation into the new conduct was ongoing at the time this cause of action was filed.

III. Due Process Hearing

A due process hearing regarding Elizabeth's education was held before Attorney Siff. Holly served as Elizabeth's representative at the hearing. Plaintiffs allege that Attorney Siff was deliberately chosen by the School District and Superintendent Nelson to gain advantage in the proceedings because Attorney Siff was a "harsh" former marine and Holly had a history of being the victim of domestic violence.

Plaintiffs allege that Attorney Siff was biased against them. In support of that contention, plaintiffs assert that Attorney Siff: limited plaintiffs' ability to present evidence and cross-examine witnesses, while not placing similar restrictions upon the other side; allowed irrelevant records into evidence, but did not allow plaintiffs to submit rebuttal evidence; denied plaintiffs financial assistance in preparing for the hearing; refused to provide plaintiffs with a copy of the hearing recording; and, despite knowing that Holly herself was disabled, interrupted Holly, limited Holly's questioning, argued with Holly openly at the hearing, and threatened Holly.

Discussion

The complaint is not presented in chronological order and does not include a clear delineation of individual counts. After thorough and generous review of the complaint, the court construes the complaint as asserting claims alleging violations of: (1) the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1491 ("IDEA"); (2) Titles II and V of the Americans with Disabilities Act, 42 U.S.C §§ 12101, et seq. ("ADA"); (3) Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 ("Section 504" or "Rehabilitation Act"); (4) Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688 ("Title IX"); and (5) the Fourteenth Amendment's Equal Protection Clause and Due Process Clause, brought pursuant to 42 U.S.C. § 1983 ("Section 1983"). Plaintiffs allege disability discrimination, sexual harassment, and retaliation.

I. Pro Se Plaintiffs

Both Elizabeth and Holly are identified as plaintiffs in this case. To the extent Holly is seeking to bring claims on her own behalf, the court will address such claims in the discussion below. To the extent, however, Holly is seeking to stand in as a representative for Elizabeth in this action, she may not do so. Elizabeth personally signed the complaint and,based on the representations in the complaint, had reached the age of majority at the time this action was filed. Though the complaint alleges that Elizabeth is disabled, there is no indication that Elizabeth has been deemed incompetent or is otherwise unable to represent herself. See Fed. R....