110 F. Supp. 3d 386
D. Conn.2015Background
- John Doe, a 12-year-old boy with Down Syndrome, alleged his paraprofessional aide, Zachary Hasak, exposed his penis and told him to touch it; parents reported the allegation on October 15, 2009.
- School staff interviewed John (promised video that failed), the family reported to police and DCF; SART interview (Oct. 21, 2009) found John’s account credible and DCF initially substantiated the abuse.
- Two private and state polygraphs of Hasak showed no deception; state prosecutor declined to seek charges; BOE investigator later found allegations unsubstantiated and reinstated/ reassigned Hasak.
- Plaintiffs sued the BOE, Town, and various employees under ADA/Rehab Act, Title IX, substantive and procedural due process, tort claims, and indemnification; defendants (except Hasak) moved for summary judgment.
- Central legal disputes turned on (1) admissibility of hearsay (statements by John to parents, SART transcript, and therapist) and (2) whether certain school employees had notice of prior reports before Oct. 15, 2009.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of John’s out-of-court statements to parents and SART interview | Statements are admissible as excited utterances,/or under the residual exception; therapist statements admissible for treatment | Statements are hearsay and inadmissible at summary judgment if declarant (John) will not testify | Court: Most statements likely admissible under Rule 807 residual exception; therapist statements admissible under Rule 803(4); SART likely not an excited utterance but admissible via residual exception |
| ADA / Rehabilitation Act (BOE) — discrimination by reason of disability | BOE failed to credit John and failed to act, denying safe education due to his disability | BOE lacked notice and cannot be charged with disability-based discrimination | Court: Denied summary judgment — triable issues whether BOE had notice (via Conte/Bellino) and acted because of disability |
| Title IX (BOE) — deliberate indifference after actual notice | BOE had actual notice through assistant director (Conte) and teacher (Bellino); BOE was deliberately indifferent | BOE argues lack of actual notice to an official able to remedy | Court: Denied summary judgment — disputed facts whether Conte (an official) had notice and BOE was deliberately indifferent |
| Substantive due process / Municipal liability (BOE) — failure to train/supervise/hiring | BOE failed to train staff about reports by severely disabled students, failed to supervise Hasak, and negligently hired him | BOE contends no municipal policy/custom, insufficient evidence of deliberate indifference or obvious risk | Court: Partial grant — failure-to-train, failure-to-supervise, and hiring claims against BOE dismissed for lack of evidence of deliberate indifference; but actual-notice claim remains for BOE; some individual failure-to-act claims against Bellino and Conte survive; Pavia and Cunha dismissed |
| Procedural due process (BOE) — inadequate post-deprivation remedy / participation | Parents claim BOE denied meaningful post-deprivation process and participation in investigation | BOE points to available administrative remedies/IDEA procedures and parties’ waiver/mediation | Court: Grant summary judgment for BOE — administrative remedy was available and plaintiffs waived/declined it |
| Negligence (state-law) — failure to hire/train/supervise (all defendants except Town) | BOE and employees negligently supervised/hired/trained leading to harm | Defendants invoke governmental immunity for discretionary acts | Court: Grant summary judgment — negligence claims barred by governmental/discretionary-act immunity (except as to Hasak, who did not join motion) |
| Indemnification (Town & BOE) | Plaintiffs seek indemnification for employee liability | Town not employer of BOE employees; indemnification depends on underlying liability | Court: Grant as to Town (dismissed) because BOE employees, deny as to BOE (survives) |
Key Cases Cited
- Idaho v. Wright, 497 U.S. 805 (1990) (factors for assessing reliability of hearsay statements by children)
- Gebser v. Lago Vista Indep. School Dist., 524 U.S. 274 (1998) (Title IX requires notice to an official with authority and deliberate indifference)
- Monell v. Department of Social Services, 436 U.S. 658 (1978) (municipal liability under §1983 requires a policy or custom)
- Fulton v. Goord, 591 F.3d 37 (2d Cir. 2010) (elements for ADA/Rehab Act discrimination claims)
- Hayut v. State Univ. of New York, 352 F.3d 733 (2d Cir. 2003) (teacher-on-student harassment fits within Title IX discrimination)
- Doe v. Taylor Independent School District, 15 F.3d 443 (5th Cir. 1994) (state actor sexual abuse of a student violates Fourteenth Amendment bodily integrity)