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Tveter v. Derry Cooperative School District Sau #10

United States District Court, D. New Hampshire

July 20, 2018

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

          Elizabeth Tveter, pro se Holly Tveter, pro se Dona Feeney, Esq. Joshua S. Hilliard, Esq. Alison M. Minutelli, Esq. Dean B. Eggert, Esq. S. David Siff, Esq.



         Elizabeth Tveter, a former student at Pinkerton Academy, and her mother, Holly Tveter, have sued Pinkerton Academy, the Derry School District, and eleven School District and Pinkerton employees. The Tveters argue that the defendants denied Elizabeth her right to a Free and Appropriate Public Education (FAPE) under the Individuals with Disabilities Education Act (IDEA), and discriminated against her, harassed her, and retaliated against her in violation of the Americans with Disabilities Act (ADA), the Rehabilitation Act, Title IX, the Fourteenth Amendment, and New Hampshire law. Defendants have challenged the Tveters' amended complaint with motions to dismiss (Doc. No. 44, 45, 46, 64).

         I. BACKGROUND

         A. Factual Background

         Elizabeth Tveter enrolled as a Pinkerton Academy student in the fall of 2012.[1] Doc. No. 40 at 9. In January 2014, she suffered a severe head injury while playing field hockey on a club team unaffiliated with Pinkerton. Id. As a result of that injury, Elizabeth became disabled. Her claims stem from the way in which she was treated by school officials, teachers, and students after she became disabled.

         1. Educational Services

         In late January 2014, after it became clear that Elizabeth was disabled and would not be able to return to school in the near future, Holly Tveter asked Pinkerton to provide homework and tutoring services for her daughter so that she could continue her education as she recovered. Id. at 9-10. Holly contended that Elizabeth was entitled to these accommodations under § 504 of the Rehabilitation Act of 1973, codified in 29 U.S.C. § 794. Doc No. 40 at 9-10. Pinkerton Guidance Counselor John Chappell denied Holly's request because Elizabeth was an honor student. Id. at 10. Pinkerton did not thereafter provide any tutoring or educational assistance for Elizabeth until April 2014, when the school changed its position and developed a § 504 plan to accommodate her disability. Id. at 10.

         Elizabeth attempted to return to school on a full-time basis in the fall of 2014, but soon switched to a part-time schedule. In November, she again attempted to return to school as a full-time student. School officials, however, incorrectly told Holly that Elizabeth's § 504 plan prohibited her from attending school full time. Id. When Elizabeth nevertheless attempted to attend classes without permission, her teachers physically blocked her from entering their classrooms. Id. at 15.

         In December 2014, Pinkerton Academic Dean Christopher Harper called Holly and Elizabeth into school for a meeting to address Elizabeth's § 504 plan. Id. at 15. The school, however, neglected to inform the Tveters in advance that the meeting was being called to address Elizabeth's plan. Id. It also failed to have a teacher present at the meeting, failed to have an attendance sheet for the meeting, and failed to provide the Tveters with a written explanation of their § 504 rights. Id. Elizabeth's § 504 team agreed after the meeting to provide her with a speech-to-text device, but the school never followed through on its commitment. Id. at 123. The school also failed to provide her with teachers' notes. Holly was dissatisfied with the meeting and filed a discrimination complaint on Elizabeth's behalf with the Office for Civil Rights in the U.S. Department of Justice later that month. Id. at 16.

         Shortly after Holly filed her discrimination complaint, Pinkerton Headmaster Gerald Morse allegedly retaliated against the Tveters by informing officials at the New Hampshire Division for Children, Youth, and Families (DCYF) that Elizabeth was in danger because Holly had not been taking her to the doctor to treat her head injury. Id. at 146. On April 4, 2015, DCYF investigated the Tveters and found no wrongdoing. Id. at 20.

         School officials permitted Elizabeth to return to campus full time in May 2015, but they still prohibited her from attending her normal class schedule. Id. Instead, they required her to spend three and a half hours each day in the library, without instruction. Id. In October, Elizabeth was reinjured and forced to again leave school when another member of the field hockey team hit her in the head with a ball. Id. at 27. After Elizabeth was reinjured, school officials did not give her any classwork assignments, teachers' notes, or homework for the rest of the semester. Id. Elizabeth attempted to return to school in January 2016, but she was injured again almost immediately when another student struck her in the head with a ball in gym class. Id. at 27. She did not go back to school thereafter, but instead was permitted to complete her schoolwork from home.

         In February 2016, the school agreed to provide Elizabeth with a hearing on her § 504 plan. Doc. No. 40 at 28. The hearing officer did not allow Elizabeth to submit evidence within five days of the hearing, did not give her money to copy documents that were necessary to present her case, permitted school officials to admit records from Holly's divorce, did not allow Elizabeth to present claims that were not based on § 504, did not allow Holly to complete her cross examination of certain witnesses, and did not take Holly's own unspecified disability into account. Doc. No. 40 at 90-92.

         2. Athletics

         a. Discrimination

         Elizabeth attempted to try out for the field hockey team when she returned to school in the fall of 2014, but the field hockey coach initially refused to allow her to join the team because of her disability. Although the coach later changed his mind and added her to the team, he told her she would be removed if she missed more than three practices even though non-disabled students were not subjected to the same attendance requirement.

         School officials also initially attempted to block Elizabeth from joining the tennis team in 2015 because of her disability. The school eventually relented, however, and she was placed on the junior varsity team. When Elizabeth made the varsity team the following spring, her coach required her to wear a different colored uniform shirt from the uniforms worn by the non-disabled members of the team. Doc. No. 40 at 29.

         b. Harassment by Students

         After Elizabeth returned to the field hockey team in the fall of 2014, a group of teammates forced her to remove her uniform shirt while at a game. Doc. No. 40 at 12-13. Elizabeth was left wearing only her undergarments, and her teammates laughed at her. Id. at 13. On another occasion, Elizabeth's skirt was “forcibly removed in public by the same group of girls.” Id. On third occasion, some of her teammates forcibly removed her socks while riding the bus to a field hockey game, and took them away from her. Id. A coach was sitting just a few feet away when this third incident occurred. Id.

         In January 2015, Guidance Counselor John Chappell approached Elizabeth in a school hallway and discussed Elizabeth's “personal situation” with her in front of other students. Id. at 17. After Chappell's talk with Elizabeth, the students who heard their discussion called Elizabeth derogatory names relating to her disability. Id. at 18.

         c. Harassment by Athletic Director

         In April 2015, Pinkerton Athletic Director Timothy Powers watched Elizabeth during her tennis matches and followed her as she changed courts. Id. at 21. Powers approached Elizabeth after one practice, brushed his shoulder against hers, and followed her as she ran from him. Id. On another occasion, Powers physically bumped into Elizabeth at a school ice cream social. Id. at 24. In July 2016, Powers stood outside a classroom where Elizabeth was receiving tutoring and stared at her. Id. at 30.

         B. Procedural History

         Defendants challenged the Tveters' complaints with motions to dismiss. Doc. No. 18, 21, 34. In response, Elizabeth and Holly filed objections that cited new facts and causes of action. Doc. No. 23, 35. Several defendants responded with motions to strike the Tveters' objections. Doc. No. 25, 26. Because the Tveters were attempting to present new factual assertions and new claims to supplement their complaint, I instructed them to file an amended complaint and denied defendants' motions to dismiss without prejudice. Doc. No. 39. The Tveters then filed an amended complaint that asserted twelve different causes of action against thirteen defendants. Doc. No. 40. All of the defendants filed timely motions to dismiss the amended complaint.

         II. ANALYSIS

         The Tveters assert claims based on the IDEA, the ADA, the Rehabilitation Act, the Fourteenth Amendment's equal protection and due process clauses, and various state law causes of action. Defendants argue that I lack subject matter jurisdiction to consider the Tveters' claims because they failed to comply with the IDEA's exhaustion requirement. They also assert that any of the Tveters' claims that are not subject to the exhaustion requirement fail to state viable claims for relief.

         A. The ...

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