Doe v. Darien Bd. of Educ.

• Decision Date: 21 May 2015
• Docket Number: Civil No. 3:11cv1581 (JBA).
• Court: U.S. District Court — District of Connecticut
• Parties: John DOE, by and through his Parents and next friends, Mr. & Mrs. Robert DOE; and Mr. Robert Doe; Mrs. Robert Doe, Plaintiffs, v. DARIEN BOARD OF EDUCATION, Town of Darien, Zachary Hasak, Robin Pavia, Melissa Bellino, Andrea Cunha, and Laura Conte, Defendants.

110 F.Supp.3d 386

John DOE, by and through his Parents and next friends, Mr. & Mrs. Robert DOE; and Mr. Robert Doe; Mrs. Robert Doe, Plaintiffs,

v.DARIEN BOARD OF EDUCATION, Town of Darien, Zachary Hasak, Robin Pavia, Melissa Bellino, Andrea Cunha, and Laura Conte, Defendants.

Civil No. 3:11cv1581 (JBA).

United States District Court, D. Connecticut.

Signed May 21, 2015.

Gary S. Mayerson, Jacqueline Devore, Maria C. McGinley, Tracey Spencer Walsh, Mayerson & Associates, New York, NY, James A. Hall, IV, Hall Johnson, LLC, Pawcatuck, CT, for Plaintiffs.

Catherine S. Nietzel, John Wade Cannavino, Jr., Jonathan Zellner, Ryan Ryan Deluca, LLP, Stamford, CT, John A. Blazi, Bethany Bircher Karas, Law Offices of John A. Blazi, Waterbury, CT, for Defendants.

RULING ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

JANET BOND ARTERTON, District Judge.

John Doe and his parents Mr. and Mrs. Robert Doe, bring this suit against the Darien Board of Education ("BOE"), the Town of Darien, Zachary Hasak, Robin Pavia, Melissa Bellino, Andrea Cunha, and Laura Conte, alleging violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132 et seq. and § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (as to the BOE only) (Count I); Title IX, 20 U.S.C. § 1681(a) (as to the BOE only) (Count II); substantive due process as guaranteed by the Fourteenth Amendment of the United States Constitution (as to all Defendants except the Town) (Count III); procedural due process as guaranteed by the Fourteenth Amendment (as to the BOE) (Count IV); assault and battery (as to Mr. Hasak) (Count V); reckless and wanton conduct (as to Mr. Hasak) (Count VI); and negligence (as to all Defendants except the Town) (Count VII); and further alleging that the Town and Board of Education must indemnify their employees (Counts VIII and IX). Plaintiffs' suit arises out of allegations by John Doe that he was sexually abused by his paraprofessional aide, Zachary Hasak, while in school on one or more occasions prior to October 15, 2009. Defendants (with the exception of Mr. Hasak) bring this motion [Doc. # 326] for summary judgment seeking judgment in their favor on Counts I, II, III, IV, VII, VIII and IX. Oral argument was held on March 17, 2015. For the following reasons, Defendants' motion is granted in part and denied in part.

I. Background

On October 15, 2009, Plaintiff John Doe, a then-twelve-year old boy with Down Syndrome

, told his father, Plaintiff Robert Doe, and subsequently his mother, Plaintiff Mrs. Doe that his paraprofessional aide, Defendant Zachary Hasak, had taken out his penis and told John to touch it. (Mr. Doe Dep., Ex. O to Pls.' Loc. R. 56(a) 2 Stmt. [Doc. # 334] at 67; Mrs. Doe Dep., Ex. F to Defs.' Loc. R. 56(a) 1 Stmt. [Doc. # 327] at 92.) The Does sent John to school and immediately called Dr. Eileen Luddy, the independent educational consultant paid by the BOE to assist in creating and implementing John's Individualized Educational Plan ("IEP"). (Mrs. Doe Dep. at 92.) Dr. Luddy called MaryLee Fisher, then-principal of John's school, Tokeneke Elementary School and told her that she and the Does needed to meet with Ms. Fisher and then-Assistant Superintendent of Schools for Darien Dr. Stephen Falcone. (Luddy Dep., Substitute Ex. G to Defs.' 56(a)l [Doc. # 337–1] at 192–93.) Ms. Fisher instructed Speech Pathologist Sue Atkinson to stay with John and Mr. Hasak so that John would not be alone with Mr. Hasak (Atkinson Dep., Ex. C to Defs.' 56(a) 1 at 84–85), and then she met with Dr. Luddy, the Does, and Dr. Falcone to discuss next steps (Luddy Dep. at 192–93). Directly after that meeting, Dr. Falcone notified Mr. Hasak that he would be on paid administrative leave pending the results of Dr. Falcone's investigation. (Falcone Dep. Vol. I, Ex. E to Pls.' 56(a)2 at 66.)

Assistant Principal Kathy Schultz, Dr. Luddy, and Ms. Atkinson interviewed John about what had happened. (Mrs. Doe Dep., Ex. I to Pl.'s 56(a)2 at 127.) Although the Does were assured that the interview would be video-taped, it was not.¹ (Id.; Falcone Dep. Vol. I, at 72–73.) Instead, Sue Atkinson took notes which were typed up several days later. (See Notes of 10/15 mtg, Ex. AA to Pls.' 56(a)2; Atkinson Stmt. to Police, Ex. MM to Pls.' 56(a)2 at 2.) According to the notes, during the interview John told Ms. Schultz that he touched Mr. Hasak's "peeper" and that it made him feel upset and "really mad." (Id. ) The Does reported the incident to the Darien Police Department later that day. (Mr. Doe Dep. at 103; see Police Report, Ex. X to Pls.' 56(a)2.) The school notified the Department of Children and Families ("DCF"). (Police Report at 5.) A Sexual Assault Response Team ("SART") interview was arranged for October 21, 2009, to be conducted by the Stamford Child Guidance Center in conjunction with the Darien Police Department and the BOE. (DCF Dec. 2009 Report at 5.)

During the SART interview, John told Ms. Schultz and forensic interviewer Carol Smith–Harker that while he was in room 213 at school with Mr. Hasak, Mr. Hasak took out his "peeper," showed it to him, and told him to touch it, which John did. (SART Interview Tr., Ex. V to Pls.' 56(a)2 at 13–14.) John described feeling "bad," and said that while he wanted to go back to school to see Ms. Schultz, he did not want to see Mr. Hasak again. (Id. at 15, 22–23.) Detective Chester Perkowski, who was present for the interview, recalled that John's demeanor changed from "very upbeat" to "very somber" and "disturbed" when he began to discuss the incident. (Police Report at 6.) Based on the interview, Ms. Smith–Harker concluded that John's account was credible. (DCF Dec. 2009 Report at 6.)

In November 2009, Mr. Hasak submitted to a private polygraph exam, the results of which showed "no indication of deception." (Police Report at 7.) Mr. Hasak took a second polygraph exam, this time administered by the Connecticut State Police, in December 2009, which yielded similar results. (Id. at 8.) Nonetheless, DCF concluded in December 2009 that John's allegations had been substantiated, and it placed Mr. Hasak on the Child Abuse and Neglect Central Registry. (DCF Report at 39.) Mr. Hasak appealed DCF's decision, and it was overturned in February 2010 for reasons undisclosed to the Court. (Id. at 3.)

Although the police requested an arrest warrant for Mr. Hasak (Police Report at 9), the State Attorney's Office determined that it did not have enough evidence to seek a warrant (DCF Appeal Report, Ex. H to Defs.' 56(a) 1 at 3). Dr. Falcone concluded his investigation and issued his final report in April or May 2010, finding that John's allegations could not be substantiated and that Mr. Hasak should be removed from administrative leave and re-assigned to another school. (Falcone Report, Ex. GG to Defs.' 56(a)1 at 8.)

Several people close to John testified that although his behavior had been improving in the period prior to October 15, 2009, after that date, he began to act out aggressively and to display other "classic" behaviors of someone ("especially a child with a disability such a Downs [sic] Syndrome") "who has been traumatically affected by a sexual assault." (Police Report at 8; see also Bellino Dep., Ex. G to Pls.' 56(a)2 at 8; Gallo Dep., Ex. J to Pls.' 56(a)2 at 79).

II. Discussion ²

Plaintiffs raise a number of claims against defendants other than Mr. Hasak which turn on evidence of whether the alleged abuse occurred and whether or not those other defendants had notice of the alleged abuse before October 15, 2009. However, if John does not testify at the trial,³ much of Plaintiffs' evidence will be hearsay—the admissibility of which is contested by Defendants.⁴ Because "[a] party ‘cannot rely on inadmissible hearsay in opposing a motion for summary judgment ... absent a showing that admissible evidence will be available at trial,’ " the Court must, as a preliminary matter, determine the likely admissibility of the hearsay evidence offered by Plaintiffs. Nyack v. S. Conn. State Univ., 424 F.Supp.2d 370, 374 (D.Conn.2006) (quoting Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 924 (2d Cir.1985) ).

A. Likely Admissibility of Hearsay Evidence

Plaintiffs offer hearsay evidence in support of two claims, upon which most of the counts in the complaint rest: (1) Mr. Hasak sexually abused John and (2) Melissa Bellino (John's teacher), Laura Conte (Assistant Director of Special Education for elementary schools in Darien), Andrea Cunha (the school psychologist), and/or Ms. Fisher had notice of that abuse before October 15, 2009. The evidence consists principally of: testimony⁵ by Mr. Doe, Mrs. Doe, and Dr. Cornelia Gallo (John's psychiatrist), and the SART interview transcript.

With respect to Mr. and Mrs. Doe's testimony about what John told them, Plaintiffs argue alternatively that their statements are not hearsay because they are prior consistent statements, see Fed.R.Evid. 801(d)(1)(B), or that they are hearsay but they are nonetheless admissible under the excited utterances exception, see Fed.R.Evid. 803(2). (See Pls.' Hearsay Br. [Doc. # 365] at 3–7.) Plaintiffs admit that John's statements during the SART interview are hearsay but contend that they are admissible either as excited utterances, see Fed.R.Evid. 803(2), or under the residual hearsay exception, see Fed.R.Evid. 807. (See Pls.' Hearsay Br. at 7, 10–15.) Finally, Plaintiffs argue that Dr. Gallo's testimony about what John told her during therapy sessions is not hearsay because it constitutes prior consistent statements, see Fed.R.Evid. 801(d)(1)(B), or in the alternative, that Dr. Gallo's testimony is admissible under the statements made for medical diagnosis or treatment exception, see Fed.R.Evid. 803(4). (See Pls.' Hearsay Br. at 13.)

1. Mr. and Mrs. Doe

In his deposition and statements to DCF, Mr. Doe related that on the morning of October 15, 2009, a half hour to an hour after John woke up, he was having breakfast with John when John stated "without...