MEMORANDUM AND ORDER REGARDING DEFENDANTS’ MOTION TO DISMISS AND DEFENDANT VAN AMBURGH’S MOTION TO DISMISS
(Dkt. Nos. 21 & 29)
I. INTRODUCTION
This case arises out of alleged sexual relations that Defendant Patrick Van Am-burgh had with Plaintiff Jane Doe, while he was employed as a guidance counselor at Palmer High School, which Plaintiff attended as a student. Plaintiff has brought this action against Defendants Gerald Fournier, the superintendent of Palmer Public Schools; the Town of Palmer; the Town of Palmer School Committee; individual members of the Town of Palmer School Committee Gary A. Blanchette, Mary A. Salzmann, David M. Lynch, James St. Amand, Robert Janasiewicz, and Maureen R. Gallagher; Bonny Rathbone, the former principal of Palmer High School; and Patrick Van Amburgh. The action alleges various violations of state statutory and common law, 42 U.S.C. § 1983, and Title IX of the Education Amendments of 1972.
All of the Defendants except Van Am-burgh have filed a joint motion to dismiss the complaint. (Dkt. No. 21.) Defendant Van Amburgh has filed a separate motion to dismiss. (Dkt. No. 29.) Plaintiff opposes both motions. (Dkt. Nos. 27 & 32.) For the reasons stated below, the court will allow in part and deny in part Defendants’ joint motion to dismiss and allow in part and deny in part Defendant Van Am-burgh’s motion to dismiss.
II. BACKGROUND
The facts alleged in the amended complaint are as follows:
Defendant Van Amburgh was hired as a guidance counselor at Palmer High School on August 29, 2005. In 2006, he was also appointed as an assistant football coach. In September 2006, Van Amburgh was connected with a police investigation of an alleged rape of a student by a teacher at Palmer High School. The investigation reported that Van Amburgh had sex with a student. Van Amburgh denied the allegations, but admitted to failing to maintain proper boundaries with students and to using poor judgment. The complaint alleges that some or all of the Defendants knew about the sexual allegations against Van Amburgh, but failed to perform a reasonable investigation. One law enforcement official noted that Palmer High School officials wanted to “sweep the situation under the rug.” (Am. Compl. ¶ 31.)
According to Plaintiff, Van Amburgh did not change his relationship with female students after the 2006 investigation. Instead, he openly failed to maintain proper boundaries with students, bragged about having sexual relations with female students, and bragged about participating in a “contest” with another school employee to see who could have sex with the most female students. As part of the contest, Van Amburgh and the other employee allegedly collected the belts of the students they had sex with as proof.
Defendant Fournier, the superintendent of Palmer Public Schools, testified under oath that he believed that, at various times, Van Amburgh was too “cozy” with female students. He observed a female student in Van Amburgh’s office wearing a short skirt with her feet on Van Am-
In October 2008, Van Amburgh began showing a personal interest in Plaintiff Jane Doe, who was a seventeen-year-old senior at Palmer High School at the time. Plaintiff was the “stat girl” for the school football team, of which Van Amburgh was assistant coach. Van Amburgh began talking to Plaintiff at football games and practices. He obtained her cell phone number and, between October 3 and October 18, 2008, the two exchanged over 1,300 text messages. At Van Amburgh’s invitation, Plaintiff went to Van Amburgh’s apartment twice over the course of several days. During her second visit, she had sexual relations with Van Amburgh. After the visit, Van Amburgh continued to invite Plaintiff to his apartment for sex, but she declined.
After Plaintiffs mother learned of Plaintiffs sexual relationship with Van Am-burgh, she complained to Defendants Fournier and Salzman, a member of the Town of Palmer School Committee. On October 20, 2008, Fournier placed Van Amburgh on paid administrative leave pending an investigation of the allegations. On November 17, 2008, Fournier notified Van Amburgh that he would be terminated after the investigation for having sexual intercourse with a student, inappropriate interactions with other female students, misuse of work time (including sending thousands of text messages to female students), and visiting inappropriate web sites during school time. Van Amburgh submitted a letter of resignation the same day.
Following Van Amburgh’s resignation, Plaintiff was “vilified and ostracized” by students and staff members who were on good terms with Van Amburgh. (Id. ¶ 70.) As a result, Plaintiffs grades, attendance, self esteem, and relationships with others suffered.
On December 1, 2008, Fournier reported Van Amburgh’s resignation to the Commissioner of the Massachusetts Department of Elementary and Secondary Education (“DOE”). On March 24, 2009, the DOE sent Van Amburgh a letter notifying him that it had found probable cause to revoke his educator’s license. The DOE’s reasons for revocation were substantially similar to Fournier’s findings.
Van Amburgh requested a hearing regarding the DOE’s finding of probable cause. Plaintiff was subpoenaed to testify at the hearing, which was originally scheduled for January 2010. The hearing was eventually postponed to August and September 2010, allegedly due to Van Am-burgh’s “dilatory tactics.” Plaintiffs emotional distress was escalated by the delays of the hearing. During the hearing, Plaintiff was “intentionally subjected” by Van Amburgh and his counsel to humiliating treatment. (Id. ¶¶ 80, 83.)
On April 1, 2009, Plaintiff filed a claim with the Massachusetts Commission Against Discrimination (“MCAD”), asserting claims under Mass. Gen. Laws chs. 151C and 214. The MCAD issued a probable cause finding regarding Plaintiffs allegations, and on June 3, 2011, Plaintiff filed a complaint in this court. After Plaintiff filed her complaint, the DOE issued a memorandum of decision and order revoking Van Amburgh’s educator’s license. On January 23, 2012, Plaintiff filed an amended complaint to incorporate by reference
1. Count I alleges violations of Mass. Gen. Laws eh. 151C by all Defendants.
2. Count II alleges violations of Mass. Gen. Laws ch. 214, § 1C by all Defendants.
3. Count III alleges violations of 42 U.S.C. § 1983 by Fournier, Rathbone, the Town of Palmer, and the Town of Palmer School Committee.
4. Count IV alleges violations of 42 U.S.C. § 1983 by Van Amburgh.
5. Count V alleges violations of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., by the Town of Palmer and the Town of Palmer School Committee.
6. Count VI alleges negligent retention and supervision by the Town of Palmer, the Town of Palmer School Committee, Fournier, and Rathbone.
7. Count VII alleges intentional infliction of emotional distress by all Defendants.
8. Count VIII alleges negligent infliction of emotional distress by all Defendants.
9. Count IX alleges assault and battery by Van Amburgh.
III. DISCUSSION
Defendant Van Amburgh and the municipal and school official Defendants have filed separate motions to dismiss. Because the motions raise many overlapping issues, the court will consider them together.
A. Legal Standard.
To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain “sufficient factual matter” to state a claim for relief that is actionable as a matter of law and “plausible on its face.” Ashcroft v. Iqbal,
B. Claims Against School Committee Members.
The individual members of the Town of Palmer School Committee are sued in their official capacities only. Plaintiffs claims against these individuals are thus, in actuality, claims against the Town of Palmer. See Will v. Mich. Dep’t of State Police,
Every claim that Plaintiff has brought against these individuals in their official capacities also includes the Town of Palmer and the Town of Palmer School Committee as defendants. Consequently, Plaintiffs claims against the school committee members are superfluous, as Plaintiff may recover any damages she is entitled to through her claims against the municipal defendants. See Wine & Spirits Retailers, Inc. v. Rhode Island,
The inclusion of numerous individual defendants creates clutter that may confuse a jury, and dismissing the claims against these defendants would in no way prejudice Plaintiff. The court will therefore dismiss all claims against the individual school committee members: Gary A. Blanchette, Mary A. Salzmann, David M. Lynch, James St. Amand, Robert Janasiewicz, and Maureen R. Gallagher.
C. Count I: Mass. Gen. Laws ch. 1S1C.
Plaintiff has brought a claim against all Defendants for violations of Mass. Gen. Laws ch. 151C, § 2(g), which makes it an unfair educational practice “[t]o sexually harass students in any program or course of study in any educational institution.” Mass. Gen. Laws ch. 151C, § 2(g). Despite this broad language, however, for whatever reason, Chapter 151C permits only a narrow class of students to seek a legal remedy for sexual harassment.
The only procedure for bringing a claim under chapter 151C is described in section 3(a). Under that section, “[a]ny person seeking admission as a student to any educational institution, or enrolled as a student in a vocational training institution ” may file a complaint of unfair educational practices with the Massachusetts Commission Against Discrimination (“MCAD”). Id., § 3(a) (emphasis added). Chapter 151C does not provide a private right of action for a plaintiff who does not fall into one of these two categories.
The proper vehicle for bringing claims of violations of section 2(g) by plaintiffs who do not fall under section 3(a) is Mass. Gen. Laws ch. 214, § 1C, which provides that:
A person shall have the right to be free from sexual harassment, as defined in chapter one hundred and fifty-one B and one hundred and fifty-one C. The superior court shall have the jurisdiction to enforce this right and to award the damages and other relief provided in the third paragraph of section 9 of chapter 151B.
Mass. Gen. Laws ch. 214, § 1C; see also Bloomer v. Becker College, No. 09-11342-FDS,
Plaintiff contends that she may bring a claim under either chapter 214, section 1C or chapter 151C, section 3(a). Plaintiffs interpretation of the statutory scheme, however, would render chapter 214 largely superfluous — at least with regard to sexual harassment as defined by chapter 151C— and is inconsistent with the interpretation advanced by the Supreme Judicial Court of Massachusetts. See Lowery v. Klemm,
Prohibiting Plaintiff from bringing a claim under chapter 151C, section 3(a) would not, as Plaintiff argues, be contrary to the legislature’s intent to recognize claims by all students for sexual harassment under chapter 151C, section 2(g). On the contrary, chapter 214 does provide a method to redress chapter 151C, section 2(g) claims of sexual harassment by students such as Plaintiff and gives Plaintiff the right to damages and other relief through litigation. Consequently, the court finds that Plaintiff, who is neither seeking admission to an educational institution nor enrolled in a vocational training institution, may not bring a claim under chapter 151C, section 3(a); she must seek redress under chapter 214, section 1C instead. The court will dismiss Count I against all Defendants.
D. Count II: Mass. Gen. Laws ch. 214, § 1C.
As discussed in the preceding section, Mass. Gen. Laws ch. 214, § 1C provides certain plaintiffs with a private right of action for violations of Mass. Gen. Laws ch. 151C, § 2(g). Defendants argue, however, that although a plaintiff may generally bring a claim for violations of section 2(g) under chapter 214, Plaintiffs claim here does not fall within the ambit of chapter 214.
First, Defendants argue that chapter 151C makes it an unfair educational practice to sexually harass students in “any educational institution” and Palmer High School is not an educational institution within the meaning of the statute. Mass. Gen. Laws ch. 151C, § 2(g). “Educational
Defendants’ interpretation of the statute is unconvincing. The MCAD has held that chapter 151C “extends to private and public secondary schools.” Beagan v. Town of Falmouth Sch. Dep’t,
Second, Defendants argue that the state has not waived its sovereign immunity through either Mass. Gen. Laws ch. 151C or Mass. Gen. Laws ch. 214, § 1C and, thus, Plaintiff cannot bring claims against a municipality under chapter 214.
Under Massachusetts law,
Absent statutory language that indicates by express terms a waiver of sovereign immunity, the Legislature’s intent to subject the Commonwealth to liability may be found only when such an intent is clear by necessary implication from the statute’s terms.
DeRoche v. Ma. Comm’n Against Discrimination,
Third, Defendants argue that chapter 214 does not permit claims against individuals because chapter 151C only provides for actions against “educational institutions.” Because the court will dismiss the claims against the individual school committee members, the only individual Defendants who remain in this case are Fournier, Rathbone, and Van Amburgh.
Defendants Fournier and Rathbone are named in their official capacities only. Claims against individuals in their official capacities are, “in all respects other than name, to be treated as a suit against the entity.” Kentucky v. Graham,
Defendant Van Amburgh, on the other hand, is sued in his individual capacity. During the hearing on these motions, Van Amburgh’s counsel appeared to concede that chapter 214 permits claims against individuals. An analysis of the statutory language, however, suggests otherwise. The chapter 214 private right of action is limited to claims of sexual harassment as defined by chapters 151B and 151C. Plaintiffs claim falls within the chapter 151C definition. Chapter 151C, however, refers only to “educational institutions,” whose definition does not include individuals. Mass. Gen. Laws ch. 151C, § 2 (prohibiting “an educational institution” from engaging in certain unfair practices); id., § 1(b) (defining “educational institution” as “any institution for instruction of training”). The plain language of chapter 151C, thus, does not permit claims against individuals.
Plaintiff attempts to analogize chapter 151C to chapter 151B, which provides for civil actions for violations of chapter 151C. Mass. Gen. Laws ch. 151B, § 9. Plaintiff argues that because “virtually unanimous authority supports individual liability under ... ch. 151B,” Meara v. Bennett,
The language of chapter 151B, however, is substantially different than that of chapter 151C. Chapter 151B includes several provisions that specifically refer to individual liability. Section 4(4A), for example, makes it an unlawful practice for “any person to coerce, intimidate, threaten or interfere with another person in the exercise or enjoyment of any right granted or protected by this chapter.” Mass. Gen. Laws ch. 151B, § 4(4A) (emphasis added). Likewise, section 4(5) makes it an unlawful practice for “any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter or to attempt to do so.” Id., § 4(5) (emphasis added). Those courts that have permitted individual liability under chapter 151B have premised it on these sections. See, e.g., Morehouse v. Berkshire Gas Co.,
The legislature’s decision to include such clear language in chapter 151B imposing individual liability, while omitting any such language from chapter 151C, suggests that individuals cannot be liable in their individual capacity under chapter 151C. Because Plaintiffs chapter 214 claim is premised on a violation of chapter 151C, Plaintiff cannot bring the claim against an individual Defendant in his individual capacity. The court will dismiss Count II against Van Amburgh.
Finally, Defendants contend that, even if Plaintiff could bring a section 2(g) claim, this court lacks subject matter jurisdiction over claims under Mass. Gen. Laws ch. 214, § 1C. Section 1C provides that “[t]he superior court shall have the jurisdiction to enforce” rights under chapter 151C. Mass. Gen. Laws ch. 214, § 1C. According to Defendants, this language bestows exclusive jurisdiction over chapter 214 claims in the superior court.
It is clear that this court has jurisdiction over Plaintiffs chapter 214 claim by virtue of supplemental jurisdiction.
For these reasons, the court will deny Defendants’ motion to dismiss Count II against the Town and the School Committee. Count II against the individual school officials members, Fournier, Rathbone, and Van Amburgh will be dismissed.
E. Counts III and IV: 42 U.S.C. § 1983.
A claim under 42 U.S.C. § 1983 must allege that a defendant, acting under color of state law, acted in a way that deprived the plaintiff of rights secured by the U.S. Constitution or by federal law. 42 U.S.C. § 1983. Plaintiff has brought § 1983 claims against the school officials and municipal Defendants (Count III) and against Van Amburgh (Count IV). Defendants argue that Plaintiff has failed to allege a deprivation of any federally-protected right.
Plaintiff alleges that Van Am-burgh’s sexual harassment deprived her of her right to bodily integrity, as protected by the Fourteenth Amendment’s Due Process Clause.
Defendants argue, however, that the allegations in this case, where the relationship between Van Amburgh and Plaintiff was in some sense consensual, are fundamentally different from the allegations of sexual assault that courts have found to constitute violations of due process.
Defendant Van Amburgh argues that these decisions are inapposite because Plaintiff, who was seventeen at the time of the sexual harassment, was over the age of consent in Massachusetts. However, in Chancellor, the court found that a substantive due process violation was possible even where the student was over the age of consent. See Chancellor,
Although the law in this specific area is admittedly sparse, the court is unwilling to allow the motion to dismiss without discovery, and to find thereby that consensual sexual relations with a student over the age of consent can never constitute a substantive due process violation. The inherent imbalance of power between a guidance counselor in a public school and a student may render opportunistic sexual predation sufficiently shocking, even with a “consenting” student over sixteen, to form the basis of a substantive due process claim. The issue may be revisited on summary judgment.
1. Van Amburgh.
Van Amburgh argues that, even if the alleged actions could constitute a substantive due process violation, the § 1983 claim against him should be dismissed because he was not acting “under color of state law,” as is required for liability under § 1983.
A public official acts “under color of state law” when he exercises power “possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” Id. An official may act under color of state law even when “he abuses the position given to him by the State.” Id.; see also United States v. Classic,
Under this standard, even though Van Amburgh’s actions were not authorized — and even prohibited — by the school, a reasonable jury could nevertheless find that he was acting under the color of state law. The complaint alleges that Van Am-burgh failed to maintain proper boundaries with students on school grounds. (Am. Compl. ¶¶ 27-28, 33.) It further alleges that he met Plaintiff through his position
At this stage of the proceedings, Plaintiffs allegations are sufficient to proceed with a § 1983 claim against Van Amburgh.
2. School Officials and Municipal Defendants.
Having concluded that Van Amburgh’s sexual harassment of Plaintiff may constitute a violation of her constitutional right to substantive due process, the court must now determine whether the school officials and municipal defendants may be held liable for that violation.
Under Monell v. Dep’t of Soc. Servs. of N.Y.C., a municipality cannot be liable for its employees’ constitutional violations under a theory of respondeat superior; it can only be liable when the constitutional violation arises from, or is caused by, a governmental policy or custom.
The complaint alleges that the Town, School Committee, and school officials “failed to properly train and supervise Mr. Van Amburgh, and failed to properly investigate Mr. Van Amburgh’s conduct....” (Am. Compl. ¶ 109.) Through this failure, the complaint alleges, Defendants “adopted and approved a policy, practice and custom tolerating sexual harassment.” (Id. ¶ 110.)
For Monell claims based on failure to train, supervise, or discipline, the failure can only be a policy, practice, or custom that is actionable under § 1983 if it “evidences a ‘deliberate indifference’ to the rights of its inhabitants.... ” DiRico v. City of Quincy,
Although the standard to show deliberate indifference is high, the allegations in the complaint are sufficient to survive a motion to dismiss. The complaint alleges that school officials knew, or should have known, that Van Amburgh was harassing female students. The complaint alleges that at least some school officials learned of the allegations from the 2006 police report that Van Amburgh had sex with a student; that Van Amburgh admitted to failing to maintain proper boundaries with students; that Van Am-burgh continued to openly fail to maintain proper boundaries with students; that he bragged about his sexual relations with students; that school officials had concerns about his conduct; and that Superintendent Fournier even testified that he believed Van Amburgh was too “cozy” with students. (Am. Compl. ¶¶ 26-38.) Despite these concerns, the complaint al
Defendants contend, however, that school officials did take appropriate action as soon as they became aware of Van Amburgh’s relationship with Plaintiff. Once Plaintiffs mother complained to Fournier and Salzman of Van Amburgh’s treatment of Plaintiff, Fournier immediately placed Van' Amburgh on administrative leave pending an investigation of the allegations. (Id. ¶ 65.) Following the investigation, Fournier suspended Van Amburgh, moved to terminate him, and reported his resignation to the DOE. (Id. ¶ 67, 74.)
These contentions may carry weight at a later stage of this case. The allegations summarized earlier, which must be assumed as true on a motion to dismiss, however, are sufficient to show that school officials had actual notice of, but failed to investigate or stop Van Amburgh’s sexual harassment of students long before Plaintiffs mother approached Fournier and Salzman. Although the actions Defendants took after the mother’s complaint may eventually defeat Plaintiffs § 1983 claim, it can be sufficiently inferred from the pleadings that school officials exhibited a “deliberate indifference” to the rights of their students by their earlier failure to investigate and supervise. Cf. Lipsett v. Univ. of P.R.,
The court will deny Defendants’ motion to dismiss the § 1983 claim against the Town of Palmer, the Town of Palmer School Committee, Fournier, and Rathbone.
F. Count V: Title IX.
Title IX of the Education Amendments of 1972 provides that
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefit of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.
20 U.S.C. § 1681(a). A federal funding recipient can only be held liable for a teacher’s sexual harassment of a student if an official of the recipient entity had “actual knowledge of discrimination in the recipient’s programs and fail[ed] adequately to respond.” Gebser v. Lago Vista Indep. Sch. Dist.,
G. Count VI: Negligent Retention and Supervision.
Plaintiff has brought a claim against the Town, the School Committee, Fournier, and Rathbone for negligent retention and supervision of Van Amburgh. All tort claims based on acts of public employees acting within the scope of employment must be brought pursuant to the Massachusetts Tort Claims Act. See Mass. Gen. Laws ch. 258, § 2.
As a threshold matter, Defendants argue that Plaintiff has not pled compliance with the presentment requirement of the Tort Claims Act. Before instituting a civil action for damages against a public employer under the Act, a plaintiff must “present[ ] his claim in writing to the executive officer of such public employer within two years after the date upon which the cause of action arose.... ” Id., § 4.
However, Massachusetts does not require plaintiffs to plead presentment in the complaint. Blair v. City of Worcester,
Defendants also argue that the Massachusetts Tort Claims Act only permits actions against the municipality itself; it does not allow for actions against individual defendants. See Mass. Gen. Laws ch. 258, § 2 (“[N]o such public employee ... shall be liable for any injury or loss of property or personal injury or death caused by his negligent or wrongful act or omission while acting within the scope of his office or employment.”). Both Fournier and Rathbone, however, are sued in their official capacities only and the Act shields public employees from personal liability for negligent conduct. See Murphy,
Next, Defendants argue that Van Amburgh was not acting within the scope of his employment, as required for liability under the Massachusetts Tort Claims Act. Mass. Gen. Laws ch. 258, § 2 (“Public employers shall be liable for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any public employee while acting within the scope of his office or employment....”). Massachusetts courts look to the common law to define the scope of employment for purposes of the Tort Claims Act, asking “whether the act was in furtherance of the employer’s work.” Clickner v. City of Lowell,
Defendants argue that Van Am-burgh’s conduct in this case clearly falls outside the scope of his employment. However, Count VI seeks to hold the municipality liable for the negligent actions of school officials in failing to supervise Van Amburgh; it does not seek to hold it liable for Van Amburgh’s conduct. The school officials’ alleged failure to supervise, including their alleged failure to investigate allegations of sexual harassment, was within the scope of their employment.
Finally, Defendants argue that Mass. Gen. Laws ch. 258, § 10(j) bars Plaintiffs claims. Section 10(j) prevents a public employer from being liable for
any claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation ... which is not originally caused by the public employer or any other person acting on behalf of the public employer.
Mass. Gen. Laws ch. 258, § 10(j). Courts have interpreted this section as barring liability where “a plaintiff has been harmed by a condition or situation which was not originally caused by the public employee, and is attributable to the employee only in the sense that the employee failed to prevent or mitigate it.” Brum v. Town of Dartmouth,
Courts have repeatedly held that a claim for negligent supervision alone is barred
The court will deny Defendants’ motion to dismiss Count VI.
H. Count VII: Intentional Inñiction of Emotional Distress.
Plaintiff has alleged intentional infliction of emotional distress by all Defendants. Public employers and individuals sued in their official capacities cannot be held liable for claims arising out of intentional torts. Mass. Gen. Laws ch. 258, § 10(c); Kelley v. LaForce,
Van Amburgh is sued in his individual capacity and may be held liable. To state a claim for intentional infliction of emotional distress, Plaintiff must plead that (1) the defendant intended to inflict emotional distress, or knew or should have known that emotional distress was the likely result of his conduct; (2) the defendant’s conduct was “extreme and outrageous, beyond all possible bounds or decency and utterly intolerable in a civilized community”; (3) the defendant’s actions caused plaintiffs distress; and (4) the emotional distress plaintiff suffered was so severe “that no reasonable person could be expected to endure it.” Tetrault v. Mahoney, Hawkes & Goldings,
With regard to the first element, Van Amburgh argues that Plaintiff has failed to plead that he intended to inflict emotional distress on Plaintiff. However, it is enough that Defendant knew, or should have known, that his conduct would result in emotional distress. Id. The allegations in the complaint, at least at this early stage, are enough for a reasonable person to conclude that Van Amburgh should have known his exploitive conduct toward a younger student would result in emotional distress.
With regard to the second element, Van Amburgh argues that his conduct was not extreme or outrageous, partly because Plaintiff consented to his sexual advances. Where “reasonable people could differ on whether the conduct is ‘extreme and outrageous,’ ” the question should be submitted to the jury and would be improper to decide on a motion to dismiss. Boyle v. Wenk,
Plaintiff has also pled that Van Am-burgh’s conduct caused her emotional distress. (Am. Compl. ¶ 139 (“Defendants’ actions were the cause of Jane Doe’s emotional distress and related physical injuries.”).)
Finally, Plaintiff has pled emotional distress that a reasonable finder of fact
Consequently, the court will allow Defendants’ motion to dismiss Count VII as to the Town, the School Committee, Fournier, and Rathbone, and deny Van Am-burgh’s motion to dismiss Count VII.
I. Count VIII: Negligent Infliction of Emotional Distress.
Plaintiff has also alleged negligent infliction of emotional distress by all Defendants. This claim appears to be premised on Van Amburgh’s sexual harassment of Plaintiff and seeks to hold all Defendants liable for Van Amburgh’s conduct through the Massachusetts Tort Claims Act.
Under the Massachusetts Tort Claims Act, public employers may be liable for “the negligent or wrongful act or omission of any public employee while acting within the scope of his office or employment....” Mass. Gen. Laws ch. 258, § 2. In this case, Van Amburgh was not acting within the scope of his employment when he allegedly sexually harassed Plaintiff.
As discussed earlier, the test for whether an employee was acting within the scope of his employment involves three factors: whether the conduct was the kind that the employee was hired to perform, whether it occurred within the time and space authorized by the employment, and whether it was at least partly motivated by a desire to serve the employer. Clickner,
Van Amburgh, on the other hand, is named in his individual capacity and may be liable for negligent infliction of emotional distress whether or not he was acting within the scope of his employment.
For the reasons discussed earlier, Plaintiff has pled negligence, emotional distress, and causation. Plaintiff has also pled that “the physical harm suffered by Jane Doe, was, and continues to be, manifested by objective symptomatology,” and that “[a] reasonable person would have suffered emotional distress under the circumstances and facts described above.” (Am. Compl. ¶¶ 145-146.) While these last allegations are sparse — Plaintiff, for example, has not pled specifically what physical harm she endured or what objective symptoms she manifested — at the pleading stage, they are sufficient to put Van Amburgh on notice of the claims against him and raise those claims above a speculative level.
The court will allow Defendants’ motion to dismiss Count VIII as to the Town, the School Committee, Fournier, and Rathbone, and deny Van Amburgh’s motion to dismiss Count VIII.
J. Count IX: Assault and Battery.
The final count of the complaint alleges assault and battery by Van Amburgh. Under Massachusetts law, battery is defined as harmful or offensive touching. Commonwealth v. Gorassi,
Van Amburgh argues that the assault and battery claim against him is barred because Plaintiff consented to her sexual relationship with Van Amburgh. Consent is an absolute defense to assault and battery. Thibault v. Lalumiere,
IV. CONCLUSION
For the foregoing reasons, the municipal and school official Defendants’ motion to dismiss (Dkt. No. 21) and Defendant Van Amburgh’s motion to dismiss (Dkt. No. 29) are hereby DENIED in part and ALLOWED in part. All Counts against the individual members of the Town of Palmer School Committee (Gary A. Blanchette, Mary A. Salzmann, David M. Lynch, James St. Amand, Robert Janasiewicz, and Maureen R. Gallagher) are dismissed. Count I is dismissed as to all Defendants; Count II is dismissed as to Fournier, Rathbone, and Van Amburgh; Count VII is dismissed as to the Town of Palmer, the Town of Palmer School Committee, Fournier, and Rathbone; and Count VIII is dismissed as to the Town of Palmer, the Town of Palmer School Committee, Fournier, and Rathbone. Both motions to dismiss are DENIED in all other respects. Defendants will file their Answers within twenty days of this memorandum. The case is hereby referred to Magistrate
It is So Ordered.
ORDER
Allowed, without opposition. The claim against the defendant Van Amburgh under Mass. Gen. L. ch. 214, § 1C may go forward.
So ordered.
Notes
. It is unclear whether some of these causes of action also include the individual school committee members as defendants. The Counts only list the School Committee, but the complaint states that the School Committee and its members will be collectively referred to as "the School Committee.” (Am. Compl. ¶ 13.)
. Defendants Fournier and Rathbone are also sued in their official capacities as the superintendent of Palmer Public Schools and former principal of Palmer High School, respectively. However, Defendants have not moved for dismissal of the claims against Fournier and Rathbone on this ground.
. Plaintiff argues that this court has already determined that a plaintiff like Jane Doe may assert a claim for violations of Mass. Gen. Laws, ch. 151C § 2(g). Doe v. Williston Northampton School (“Williston”),
. The odd shape of the statute is admittedly puzzling. The explanation for why the Legislature provided a remedy only for vocational students and school applicants is elusive. Certainly the exposure of other groups of students to potential harassment seems no less serious.
. The court has original jurisdiction over Counts III (42 U.S.C. § 1983), IV (42 U.S.C. § 1983), and V (Title IX), which arise out of the same conduct as Count II.
. Plaintiff has been somewhat vague regarding the foundational right of her § 1983 claims. The complaint offers a litany, alleging that Plaintiff has been deprived of rights
including but not limited to, her rights to equal protection of law, due process and to be free from sexual abuse as provided by the Fourteenth Amendment of the Constitution and her right to privacy and to be free from violations of bodily integrity as protected by the Fourth, Fifth, Ninth and Fourteenth Amendments of the Constitution .... (Am. Compl. UK 111, 118.) In their memoranda and at the motion hearing, the parties focused on Plaintiff’s substantive due process rights, and the court will do so as well. Because the court finds that Plaintiff has sufficiently alleged a violation of substantive due process to survive a motion to dismiss, it is not necessary to consider other potential foundational rights, such as equal protection or Title IX.
. Van Amburgh also argues that the § 1983 claim against him should be dismissed because he did not demonstrate deliberate indifference to the violation of Plaintiff’s rights. This argument misstates the elements of a § 1983 claim. The complaint alleges that Van Amburgh directly violated Plaintiff's rights; it does not allege that he is liable as a supervisor who was deliberately indifferent to a violation of rights.
. Defendants also argue that the § 1983 claim must be dismissed pursuant to the doctrine of qualified immunity, which provides public officials immunity from suit under some circumstances. The First Circuit has rejected the traditional analysis of qualified immunity claims in cases of supervisory liability. See Camilo-Robles v. Zapata,
. Plaintiff’s prayer for relief includes a request for punitive damages, which Defendants argue are not available under Title DC.
According to the U.S. Supreme Court,
"Title IX’s contractual nature has implications for our construction of the scope of available remedies.” One of these implications ... is that a remedy is "appropriate relief,” only if the funding recipient is on notice that, by accepting federal funding, it exposes itself to liability of that nature.
Barnes v. Gorman,
Punitive damages, on the other hand, are usually not available for breach of contract. Id. While the Court has not directly considered whether punitive damages are available under Title IX, it has relied on its Title IX decisions to hold that Title VI recipients have not implicitly consented to liability for punitive damages and such damages are not permitted under Title VI. Id. at 188,
Title VI is similar to Title IX in that neither statute contains any express remedies and both are premised on Congress’ spending power. Consequently, several courts in other jurisdictions have held that the Supreme Court's reasoning in Barnes applies to Title IX suits and punitive damages are not available under Title IX. See, e.g., Mercer v. Duke University,
However, punitive damages are available under § 1983 and Massachusetts state law for claims against individuals when the "defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.” Smith v. Wade,
. The analysis of the scope of employment under the Massachusetts Tort Claims Act is different from the analysis of acting under color of state law under § 1983. See Maimaron v. Commonwealth,
. Van Amburgh argues that a claim for negligent infliction of emotional distress cannot be premised on the same facts as a claim for intentional infliction of emotional distress. However, the fact that two theories of recovery might be inconsistent at trial does not prevent a plaintiff from stating both theories at the early pleading stage. Fed.R.Civ.P. 8(d)(2) ("A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones.”); Rodriguez-Suris v. Montesinos,