HEWES v. PUSHARD
1:21-cv-00125
D. Me.Mar 18, 2022Background
- Plaintiff Libby Hewes alleges that from 2015–2017 she (a student) was sexually abused by B. Pushard, an adult who worked at times on school premises in various capacities; some abuse occurred on school property and via school email.
- Hewes reported rumors of a sexual relationship to Brewer High School Principal Pangburn in April 2017; Pangburn conducted a limited inquiry (one conversation with the Athletic Director’s secretary) and did not notify the Superintendent as required by the Department’s Affirmative Action Plan.
- Hewes sued the Brewer School Department and several individual school employees under § 1983, Title IX, Maine tort law, the Maine Constitution, and the Maine Civil Rights Act; she also alleged retaliation after filing her complaint.
- The Brewer School Department has an Affirmative Action Plan that prohibits sexual harassment and requires staff to report suspected abuse; Hewes attached that plan to her amended complaint.
- The School Department asserted immunity under the Maine Tort Claims Act (MTCA); Individual Defendants argued insufficiency of § 1983 pleading, lack of color-of-law for some individuals, Title IX limits on individual liability, and MTCA notice/timeliness defects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether individual defendants (e.g., Small) acted under color of state law for § 1983 | Small acted as a coach and thus under color of law | No factual nexus between Small’s employment duties and the abuse; relationship was personal | Court: § 1983 claims against Small dismissed for failure to allege action under color of law |
| § 1983 state-created-danger (Pangburn) | Pangburn’s cursory investigation affirmatively enhanced danger and showed deliberate indifference | Pangburn lacked actual knowledge and did not act with conscience-shocking indifference | Court: Claim survives as to Pangburn (motion to dismiss denied) |
| § 1983 failure-to-train/supervise (Department and Pangburn) | Department had inadequate policies/training re: staff-student sexual relationships | Department had an Affirmative Action Plan prohibiting sexual harassment; allegations are conclusory | Court: Failure-to-train/supervise claims dismissed against Department and Small; supervisory theory not plausibly pleaded against Pangburn |
| § 1983 Due Process & Equal Protection (Individuals/Dept.) | School officials deprived Hewes of rights by failing to protect her based on sex/age | No municipal policy/custom caused the harm; policy exists; allegations conclusory | Court: Counts II and III dismissed |
| Title IX deliberate indifference (Department) | Department was deliberately indifferent to known harassment by a school-associated adult | Department disputes sufficiency of notice/authority; challenges facts | Court: Deliberate-indifference claim may proceed against the Department (motion denied) |
| Title IX retaliation | After Hewes filed complaint, Athletic Director questioned a peer about her sexual history, chilling complaints | Defendant contends this was not an adverse action | Court: Retaliation claim survives against Department (pleading sufficient) |
| Title IX individual liability, strict liability, intentional discrimination | Seeks money damages and asserts strict liability/intentional discrimination | Title IX provides damages remedy only against funding recipients, not individual employees; strict liability not recognized | Court: Title IX claims against individuals dismissed; strict liability and intentional-discrimination theories dismissed; deliberate indifference and retaliation against Department survive |
| Maine torts and MTCA timing/notice | Asserts assault/battery, negligence, negligent supervision, IIED, etc., against Department and individuals | MTCA confers immunity on government entities; plaintiff failed MTCA notice/timing requirements for suit against governmental employees | Court: Tort claims against Department dismissed (immunity); tort claims against Individual School Defendants barred/dismissed for MTCA notice/timeliness failures |
| Maine Constitution and Civil Rights Act claims | Alleges deprivation of state constitutional rights and civil rights interference | MCRA requires use/threat of physical force; no facts of violence/threat by school defendants (only Pushard) | Court: State constitutional and MCRA claims dismissed against Department and individual school defendants |
Key Cases Cited
- Rodríguez-Reyes v. Molina-Rodríguez, 711 F.3d 49 (1st Cir. 2013) (pleading standard: accept well-pled facts and draw inferences for motion to dismiss)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility pleading framework)
- Monell v. Department of Social Services, 436 U.S. 658 (1978) (municipal liability requires policy or custom)
- DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189 (1989) (state’s failure to protect from private violence generally not a due process violation; state-created-danger exception)
- Irish v. Fowler, 979 F.3d 65 (1st Cir. 2020) (elements of state-created-danger claim)
- Welch v. City of Biddeford Police Department, 12 F.4th 70 (1st Cir. 2021) (clarifies affirmative-act prong of state-created-danger)
- Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998) (Title IX requires actual notice to and deliberate indifference by an appropriate school official for damages)
- Davis v. Monroe County Board of Education, 526 U.S. 629 (1999) (student-on-student sexual harassment can be sex discrimination under Title IX)
- Fitzgerald v. Barnstable School Committee, 555 U.S. 246 (2009) (single administrator with authority to act can trigger deliberate-indifference liability under Title IX)