United States District Court, D. Massachusetts
JANE DOE, individually and as Mother and Next Friend of J.D., a Minor, Plaintiff,
THE LEAGUE SCHOOL OF GREATER BOSTON, INC., FRANK GAGLIARDI, PATRICK FULLER, SEAN BERTONI, and DONNA GRIFFIN, Defendants.
MEMORANDUM & ORDER
Talwani United States District Judge
Doe brings this action individually and on behalf of her
child, J.D., asserting that J.D. was molested by A.B. when
J.D. and A.B. were residential students at The League School
of Greater Boston, Inc. (“League School”). This
order addresses League School's Motion for Partial
Summary Judgment [#102] on Count I of Doe's
Complaint [#1], alleging violations of Title IX of
the Education Amendments Act, 20 U.S.C. § 1681(a), and
League School's Motion to Strike Inadmissible
Statement from Summary Judgment Record [#123]. For the
following reasons, the Motion to Strike is ALLOWED in part
and DENIED in part, and the Motion for Partial Summary
Judgment is DENIED.
Summary Judgment Standard
judgment is appropriate only “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “A dispute is genuine if the
evidence about the fact is such that a reasonable jury could
resolve the point in the favor of the non-moving party. A
fact is material if it has the potential of determining the
outcome of the litigation.” Patco Constr. Co. v.
People's United Bank, 684 F.3d 197, 206-07 (1st Cir.
2012) (internal quotation marks and citations omitted). In
resolving a motion for summary judgment, the court views all
properly supported evidence in the light most favorable to
the non-movant and draws all reasonable inferences in the
non-movant's favor. Griggs-Ryan v. Smith, 904
F.2d 112, 115 (1st Cir. 1990).
Evidence as to Count I Viewed in the Light Most Favorable
section recounts the evidence relevant to Count I that is
either undisputed for summary judgment purposes, not properly
disputed pursuant to Federal Rule of Civil Procedure 56(c)
and (e), or viewed in the light most favorable to Doe, as the
School is a private day and residential school for students
with autism. Def.'s Statement of Material Facts
[hereinafter “Def.'s SOF”] ¶ 2 [#104].
It runs multiple residential facilities for its students.
Id. ¶¶ 6, 8. One League School residential
facility is the Rock Street Home, which is licensed by the
Massachusetts Department of Elementary and Secondary
Education (“DESE”) to house students from seven
to twenty-two years old. Id. ¶ 7.
was almost sixteen years old in July 2013 when he began
attending League School and residing at League School's
Rock Street Home. Def.'s SOF ¶ 10; Pl.'s
Statement of Additional Material Facts [hereinafter
“Pl.'s SOF”] ¶ 27 [#110]. A.B.'s
diagnoses include expressive language disorder, reading
disorder, written expression disorder, pervasive
developmental disorder not otherwise specified, mood
disorder, attention deficit hyperactivity disorder, and a
seizure disorder. Def.'s SOF ¶ 12. A.B. has
significant cognitive limitations that cause him to struggle
academically, socially, and behaviorally. Id. ¶
December 2, 2013, A.B.'s roommate told League School
staff that A.B. had tried to “hump” him the night
before in their shared room at the Rock Street Home.
Id. ¶ 14; see also Pl.'s SOF Ex. 1
[hereinafter “Fuller Dep.”] 120:18-121:1
[#110-1]. The roommate asked for a new roommate. Def.'s
SOF ¶ 14. According to Patrick Fuller, then League
School's assistant principal, when he learned of this
incident, he considered it a serious incident of potential
sexual harassment or assault. Pl.'s SOF ¶ 29;
see also Fuller Dep. 120:18-121:1 [#110-1]. Staff
were immediately placed outside the boys' room all night,
with both boys in staff's sight. Pl.'s SOF Ex. 10
[“Internal Investigation Report”] 6-7 [#110-10].
Interviews of staff commenced the next day, and League School
immediately terminated one counselor's employment.
to Massachusetts law and school policies, League School was
obligated to report all incidents of suspected child abuse or
neglect, and all serious incidents affecting a student's
well-being, to the student's school district and to DESE.
Pl.'s SOF ¶¶ 22-23. League School did not
report the incident, Def.'s SOF ¶ 17; Pl.'s SOF
¶ 30, but an unidentified party reported the incident to
the Massachusetts Department of Children and Families
(“DCF”). Pl.'s SOF ¶ 31. On December 11,
2013, DCF notified League School of a report indicating that
“a student at League School attempted to have anal sex
with another student, ” “[s]taff members were
non-responsive, ” and “[s]taff members were
reported to have left the premises and/or sleeping.”
Internal Investigation Report 1 [#110-10]. DCF also notified
the Massachusetts Department of Early Education and Care
(“EEC”) of this report.
day of the DCF report to the League School, A.B. was moved to
a single room. Def.'s SOF ¶ 37. Both Fuller and EEC
proceeded to investigate the incident further. Pl.'s SOF
¶ 33; Def.'s SOF ¶¶ 15, 19. According to
Fuller's report of his investigation:
Interviews with students reveal that the students were fully
clothed, but engaged in sexualized touching. Students claimed
touching included pressing on the stomach and hugging. One
student indicated that the other student lay on his stomach
and indicated that the other student ‘humped my
stomach'. Both students offer almost identical stories,
but each student alleges that the other student was the
Investigation Report 1 [#110-10]. This report also indicates
that, although neither A.B. nor his roommate had a prior
history of sexual behavior recorded in their student files,
“A.B. was involved in another incident with his old
roommate, but no touching was involved.” Id.
report states that video surveillance revealed that one
residential counselor left the Rock Street Home the night of
the incident and failed to return for over an hour.
Id. That counselor then slept upon returning.
Id. Further, Fuller's report found that two
staff members failed to complete required bed checks during
their shift. Id. League School discharged the
residential counselors involved. Id. The Internal
Investigation Report initially recommended the following
additional changes: (1) stationing of overnight residential
staff outside A.B.'s and his roommate's room, (2)
residential doors would remain open, (3) additional bed
checks, (4) overnight spot checks and documentation of spot
checks, and (5) the assistant principal and residential
coordinator would observe the residence via camera at least
once a week and document these observations in a residential