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Fortin v. Hollis School District

United States District Court, D. New Hampshire

September 18, 2017

Michael and Ginger Fortin on behalf of Minor Child, TF
Hollis School District and Lisa Keehan Opinion No. 2017 DNH 193P

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



         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”), 42 U.S.C. § 12131 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 28 U.S.C. § 1331 (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.

         I. 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., 335 F.3d 15, 19 (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, 622 F.3d 17, 26 (1st Cir. 2010) (internal quotation omitted).

         Once the movant has made the requisite showing, “the burden shifts to the summary judgment target to demonstrate that a trialworthy issue exists.” Id. 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., 217 F.3d 46, 52-53 (1st Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (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, 398 F.3d 76, 82 (1st Cir. 2005) (internal citation omitted). The following background takes this approach.

         II. 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 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.

         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, 29 U.S.C. § 794, (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 prejudice[4] and disavowed any “failure to provide services” claim under the ADA 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.

         III. 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.” 42 U.S.C. § 12132. 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, 225 F.3d 1, 5 (1st Cir. 2000). “[P]rivate individuals may recover compensatory damages under § 504 and [ADA] Title II only for intentional discrimination.”[6] Nieves-Márquez v. Puerto Rico, 353 F.3d 108, 126 (1st Cir. 2003) (citing Alexander v. Sandoval, 532 U.S. 275, 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.

         A. ...

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