United States District Court, D. New Hampshire
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.
MEMORANDUM AND ORDER
BARBADORO UNITED STATES DISTRICT JUDGE
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).
Tveter enrolled as a Pinkerton Academy student in the fall of
2012. 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.
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.
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.
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.
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.
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.
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.
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
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.
Harassment by Students
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.
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.
Harassment by Athletic Director
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.
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.
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.