Magistrate Recommends That Some of Omnibus Claim From Mother and Her Concussed Daughter Can Continue

Jun 23, 2017

A magistrate judge from the District of New Hampshire has recommended that a district judge dismiss some, but not all, of a complaint brought, pro se, by a mother and her daughter, who is an athlete. The lawsuit had claimed that the school district violated a litany of federal laws when it allegedly prevented the daughter, Elizabeth Tveter, from resuming her education in the aftermath of a concussion.
Tveter is a disabled adult, who at the time her complaint was filed, was enrolled at Pinkerton Academy High School (Pinkerton). Tveter’s mother is also disabled.
Pinkerton is an independent high school, which contracts with the Derry Cooperative School District SAU #10 to provide public high school education for the school district’s students. Both the school district and Pinkerton were collectively referred to as institutional defendants in the opinion.
Laura H. Nelson is employed by the school district as superintendent of schools. Gerald Griffin Morse is the Headmaster at Pinkerton. Heather Haas Derochers is the 504 Coordinator at Pinkerton. Until July 1, 2016, Christopher Harper was Dean of Academics at Pinkerton and Glenn Ahrens was Dean of Students at Pinkerton. Timothy Powers was Athletic Director at Pinkerton and Jennifer Resmini was the varsity field hockey coach at Pinkerton. David Siff is an attorney who served as the hearing officer at a due process hearing. All are referred to collectively as individual defendants in the opinion.
On Jan. 5, 2014, Tveter suffered a severe traumatic brain injury during athletic training. The injury left her cognitively impaired, and she was diagnosed as legally disabled. Tveter took an extended medical leave of absence from Pinkerton, finally returning full time in August 2015 under a 504 plan.
Prior to her injury, she was a starter on the Pinkerton varsity field hockey team. Tveter was medically cleared to return to the field hockey team in September 2015. She was required to wear protective headgear, but was otherwise cleared to fully participate. The plaintiffs, Tveter and her mother, contend that her playing time was nevertheless restricted and that when the mother complained, it was further restricted.
The plaintiffs alleged that once Elizabeth returned to the field hockey team, other girls on the team started to bully her. Tveter was not bullied prior to becoming disabled, and non-disabled students were not bullied. The plaintiffs filed numerous complaints regarding this bullying, but none of the individual defendants intervened, allowing the bullying to continue and escalate, according to the complaint.
On Oct. 29, 2015, Tveter was reinjured during field hockey practice when another member of the team struck a ball that hit Tveter, who was standing on the sidelines putting on her protective headgear, in the head. Tveter allegedly suffered a severe concussion, which necessitated her taking a second medical leave of absence from Pinkerton from Oct. 30, 2015, until February 2016.
During this second leave of absence, Tveter allegedly made multiple requests for tutoring, direct instruction, class work, handouts, teacher’s notes, and homework assignments. The defendants allegedly denied those requests without providing written notice or holding a 504 team meeting. Tveter was thus unable to teach herself or receive instruction from a private tutor. The plaintiffs claimed they made multiple requests to be involved in the decision process.
On Jan. 4, 2016, Tveter was cleared to return to Pinkerton for 45 minutes per day to attend a physical education class for disabled students. On Jan. 7, 2016, a student aid for the class, who had previously bullied Tveter, struck her in the head, reinjuring her brain and possibly causing permanent brain injuries.
Nonetheless, in the spring of 2016, Tveter was a member of the Pinkerton varsity tennis team. The plaintiffs claim that Tveter 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.
The plaintiffs further alleged that Tveter was subject to sexual harassment by Powers. The mother 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 [delete] 2015, a meeting was held in May of [delete] 2015, and a safety plan was created for Elizabeth requiring Powers to stay away from her. Powers allegedly ignored this.
A due process hearing regarding Tveter ‘s education was held before attorney Siff. The mother served as Tveter ‘s representative at the hearing. The 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 the mother had a history of being the victim of domestic violence. The plaintiff cited numerous examples in support of their claim.
In its examination, the court noted that the complaint is not presented in chronological order and does not include a clear delineation of individual counts. After a “thorough and generous review” of the complaint, the court construed 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). The plaintiffs allege disability discrimination, sexual harassment, and retaliation.”
The magistrate judge recommended dismissal of both the IDEA claim as well as the claims brought under the ADA and Rehabilitation Act insofar as they both sought to impose liability against the individual defendants in their personal capacities. Such relief is not available.
The judge was more receptive to the discrimination claim brought under Title II of the ADA.
“When construed liberally, the complaint alleges that Tveter faced discrimination during the due process hearing due to her own disability,” wrote the judge. “Tveter may accordingly proceed with a disability discrimination claim on that basis.”
Furthermore, the plaintiffs’ disability discrimination claims under Title II and Section 504 “may proceed in part, as discussed herein. The court directs service of these claims on the institutional defendants and the individual defendants in their official capacities. The district judge should dismiss these claims to the extent they are asserted against the individual defendants in their personal capacities.”
Turning to the retaliation claims brought under the Rehabilitation Act and the ADA, the court turned to the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-03, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) applies. Id. To state a prima facie claim of retaliation, a plaintiff must allege that (1) she engaged in protected conduct, (2) she was subjected to an adverse action by the defendant, and (3) there was a causal connection between the protected conduct and the adverse action. Id. “An adverse action is one that might well dissuade a reasonable person from making or supporting a charge of discrimination.” Id.
“Tveter ‘s retaliation claims under the ADA and the Rehabilitation Act may proceed. When construing the complaint liberally, Tveter appears to allege four distinct retaliatory acts by the defendants: first, that the defendants deliberately reduced Tveter’s field hockey playing after she and Holly complained that her playing time was being unnecessarily limited when she returned from her first leave of absence; second, that the defendants refused to include Tveter and her mom in the decision-making process after they complained that the defendants were violating Tveter’s 504 plan; third, that the defendants refused to intervene when Tveter and her mom complained that Tveter was being bullied due to her disabilities; and fourth, that the defendants failed to take appropriate steps in response to Tveter and her mom’s complaints that she was being sexually harassed by Athletic Director Powers. These allegations are sufficient to warrant serving Tveter ‘s ADA and Rehabilitation Act retaliation claims on the institutional defendants and the individual defendants in their official capacities.
“Tveter’s retaliation claims may also proceed, though on a more limited basis. When construed liberally, the complaint alleges that Tveter was retaliated against when she complained of disability discrimination during the due process hearing. The complaint further alleges that her mom was retaliated against when she complained that the defendants were violating Tveter ‘s 504 plan during her second leave of absence. See Weber, 212 F.3d at 48-49 (holding that the parent of a disabled child has standing to pursue a retaliation claim under the Rehabilitation Act when the parent is retaliated against due to complaints relating to her child’s education). The mom’s claim may proceed with retaliation claims on these bases.
“The court accordingly directs service of plaintiffs’ retaliation claims under Title V of the ADA and Section 504 of the Rehabilitation Act on the institutional defendants and the individual defendants in their official capacities, as discussed above. The district judge should dismiss these claims to the extent they are asserted against the individual defendants in their personal capacities.”
The court also considered the plaintiffs’ Title IX claims for sexual harassment and retaliation. With regard to both claims, the court found the plaintiffs’ allegations to be sufficient to withstand the motion to dismiss.
Next, it considered the plaintiffs’ claims under Section 1983 for violations of equal protection and due process. It found that the allegations “are minimally sufficient to allow the equal protection claims brought by Tveter to proceed against all defendants.” The mom’s claim, however, was a different story since there is “no indication” that she “was ever treated differently than any similarly-situated individuals, or that this treatment was based on an impermissible consideration.” Thus, the court dismissed the mom’s claim.
Finally, the court allowed the plaintiffs’ “procedural due process rights under the IDEA and/or Section 504” to continue.
Elizabeth Tveter et al. v. Derry Cooperative School District SAU # 10, et al.; D.N.H.; Case No. 16-cv-329-PB, 2017 U.S. Dist. LEXIS 73516; 4/25/17
Attorneys of Record: (for plaintiff) Elizabeth Tveter, Pro se, Derry, NH. (for defendants Derry Cooperative School District SAU #10, Laura H. Nelson): Dona Feeney, LEAD ATTORNEY, Maggiotto Belobrow Feeney & Fraas PLLC, Concord, NH. (For defendants Pinkterton Academy High School, Gerald Griffin Morse, Christopher Harper, Glenn Ahrens, Heather Haas Derochers, Timothy Powers, Jennifer Resmini, Defendants: Alison M. Minutelli, Dean B. Eggert, LEAD ATTORNEYS, Wadleigh Starr & Peters PLLC, Manchester, NH.


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