Brodeur v. Claremont School Dist.

Decision Date12 June 2009
Docket NumberCivil No. 07-cv-206-JL.
Citation2009 DNH 082,626 F.Supp.2d 195
PartiesNicole BRODEUR, et al. v. CLAREMONT SCHOOL DISTRICT et al.
CourtU.S. District Court — District of New Hampshire

Peter E. Hutchins, Donna-Marie Cote, Wiggin & Nourie PA, Manchester, NH, for Elaine Brodeur, William Brodeur, Caitlin Ouellette.

Diane M. Gorrow, Soule Leslie Kidder Zelin Sayward & Loughman, Salem, NH, for Claremont School District Sau # 6, Gene Grumman, Leo Paul Couture.

Corey M. Belobrow, Maggiotto & Belobrow PLLC, Concord, NH, for Gene Grumman.

ORDER

JOSEPH N. LAPLANTE, District Judge.

Elaine and William Brodeur, and their daughter, Nicole, have sued the Claremont School District, the principal of its high school, and a former teacher there, alleging violations of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a), and a number of state law causes of action arising out of certain offensive comments the teacher made to Nicole, and their aftermath. The defendants have moved for summary judgment on all of the plaintiffs' claims.

This court has subject-matter jurisdiction under 28 U.S.C. §§ 1331 (federal question) and 1367 (supplemental jurisdiction). After hearing oral argument, and for the following reasons, the defendants' motions for summary judgment are granted in part and denied in part.

I. Applicable legal standard

Summary judgment is appropriate where the "pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In making this determination, the "court must scrutinize the record in the light most flattering to the party opposing the motion, indulging all reasonable inferences in that party's favor." Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir.2003).

To comprise part of the record on summary judgment, however, proffered testimony "must be made on personal knowledge, set out matters that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated." Fed.R.Civ.P. 56(e)(1). The defendants, in their reply memorandum, protest that some of the testimony relied on by the plaintiffs in opposing summary judgment runs afoul of this rule, because it is hearsay. Specifically, the defendants object to the Brodeurs' testimony relating what others, including Nicole and one of her classmates, told them; testimony by Nicole's English teacher relating what others told him about Grumman's behavior; and an unauthenticated record from a counselor who treated Nicole.

"It is black-letter law that hearsay evidence cannot be considered on summary judgment." Davila v. Corporación De P.R. Para La Difusión Pública, 498 F.3d 9, 17 (1st Cir.2007). Much of the evidence to which the defendants object appears to be hearsay, i.e., out-of-court statements offered to prove the truth of the matters asserted, that does not readily fit within any of the recognized exceptions. And the plaintiffs have not carried their burden to show that any of those exceptions apply, see United States v. Gaines, 170 F.3d 72, 79 (1st Cir.1999), or, indeed, made any response at all to the defendants' objections. In ruling on summary judgment, then, the court has not considered the hearsay statements proffered by the plaintiffs and specifically challenged as hearsay by the defendants. See Perez v. Volvo Car Corp., 247 F.3d 303, 314-15 (1st Cir.2001).

II. Background
A. The harassing remarks

At the start of Nicole's sophomore year at Stevens High School in Claremont, when she was 15 years old, defendant Gene Grumman was her biology teacher. Grumman, himself 55 years old at the time, had been teaching at Stevens for the past 25 years. The biology course lasted one semester, from September 2005 until mid-January 2006. Within the first two months of the school year, Grumman made several remarks about Nicole's buttocks. Nicole described these remarks as "weird statements" or "sick comments," about five or six in all.

In one, Grumman was explaining the concept of the genetic code through an analogy in which Nicole was in love with a boy in the class, but had been locked in her room by her parents as punishment for seeing him. Grumman asked the class to suggest ways that Nicole could still communicate with the boy, leading one student to suggest that she climb out the window. Grumman said in response, according to Nicole's contemporaneous account, "with that huge rubus of hers and those hips there's no way she would fit. And then ... she would be so grounded that her parents wouldn't feed her dinner, but maybe that would help."1

On another occasion, Grumman, in Nicole's words, "talked about my—my butt and how if I was walking down the hallway that I would knock out all of the lockers because it was so big." As a result, Nicole recalled, "everyone used to look at me when I was walking down the hallway because he pointed that out." Grumman himself remembered a different incident where he asked a boy in the class to draw a circle on the chalkboard to represent a cell, but the boy drew the circle too small. So Grumman told him, "You have to make it bigger. Make it as big as Nicole's butt."2 The boy drew a circle of "exaggerated" size in response, eliciting laughter from some of the other boys in the class.

In yet another incident, Nicole arrived for class wearing pants with one of the nicknames for the school's athletic teams, "Big Red," emblazoned across the bottom.3 Pointing at the pants, Grumman said, "Oh, that's what you call it these days," which Nicole understood to refer to the size of her buttocks. Grumman made a similar comment to another girl in the class who was wearing pants with that design, Caitlin Ouellette, telling her, "I called you many things but `Big Red' is definitely a new one" (spelling corrected).

During the same time period, in fact, Grumman made other like comments about Caitlin as well, about five or six in total, according to Nicole. Once, Grumman told the class that a person kills 1,000 "butt cells" just by sitting down, but—pointing to Caitlin—"Big Red over here must kill about 2,000 every time she sits down." Yet another time, after a boy in the class showed Grumman a sticker and asked him, "Isn't that sexy?" Grumman pointed to Caitlin "in front of the whole class" and said, "I think that's sexy but the sticker isn't" (spelling and punctuation corrected). The summary judgment record contains evidence, either direct or circumstantial, that Nicole witnessed all of these incidents.4 Grumman did not make such comments about any of the boys in the class.

B. Nicole's complaint and the school's response

By roughly the middle of October, Nicole told her parents about Grumman's comments. Her parents, in turn, told her to tell her guidance counselor, Jacquelyn Hall. Nicole, accompanied by Caitlin, met with Hall on October 20, telling her that Grumman "was saying some things that made them feel uncomfortable."5 After Nicole began relating Grumman's comments about her getting stuck in the window, Hall directed her and Caitlin to write the comments down, which they did, in signed statements that described all of the incidents just discussed.

Hall assured Nicole that she would give her statement to the school's principal, who would "talk to Mr. Grumman and hopefully it will stop. And if it doesn't stop you need to let me know." Hall says that she also informed Nicole of the possibility that she could transfer to another biology class with a different teacher, but that the switch would have necessitated changing two other class as well, and that Nicole said "she would wait to see how it went before she did that." Nicole, though, denies that anyone ever offered to switch her out of Grumman's class.

Within a few days of Nicole's meeting with Hall, the principal, defendant Leo Paul Couture, had reviewed Nicole's statement and met with Grumman and a representative from the teachers' union. Grumman did not deny making the comments described in the statement—which included the remarks about her getting stuck in the window and the "Big Red" nickname on her pants—but, in Couture's words, "put it in context."6 Grumman explained, for example, that the window comment was intended to convey that the DNA molecule because of its relatively large size, could not fit through the pores in the nucleus of the cell. Grumman also explained that the comment about the pants was an honest inquiry about the school's nickname. Couture told Grumman that his comments "were inappropriate and the students did not find them to be humorous." Couture did not, however, consider the comments to be sexual harassment. In any event, Grumman agreed not to "make those types of comments anymore."

Couture arranged a meeting with Nicole, Caitlin, and the school's vice principal roughly one week later. Couture told Nicole that, having read her statement, he found Grumman's comments inappropriate, met with him, and directed him to stop making such remarks. Couture also conveyed that Grumman wanted to apologize. Nicole's response to this information was "quiet," according to Couture, or "like, okay," according to her. At the end of the meeting, Nicole and Caitlin were directed to go back to Grumman's class (where, it appears, they had been when summoned to the meeting), which made Nicole "really uncomfortable." Grumman recalls that, after the girls returned, Couture arrived and, outside of the classroom, informed him "that they did not wish to speak to me, they did not wish an apology individually in front of the class or anything of that sort." Nicole confirmed that those were her wishes because, as she put it, "I didn't want him around me."

Nicole perceived that Grumman "acted differently" toward her after her meeting with Couture: he put her in the back of the class, called on her less, did not take her...

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