Doe v. Dennis-Yarmouth Reg'l Sch. Dist.

Decision Date04 January 2022
Docket NumberCivil Action 21-cv-10172-PBS
CourtU.S. District Court — District of Massachusetts
PartiesMARY DOE, as Guardian of JANE DOE, and MARY DOE and JOHN DOE, Individually, as parents of JANE DOE, Plaintiffs, v. DENNIS-YARMOUTH REGIONAL SCHOOL DISTRICT, ABIR ZAINEH, SUSAN HARDIGAN, MARY MOEs 1-5, and MICHAEL MOEs 1-5, Defendants.



Jane Doe (Jane), a sixteen-year-old, was enrolled in Dennis-Yarmouth Regional High School's Wave Program for students with mental disabilities. After Jane was allowed to go to the bathroom unsupervised, Jane's assistant discovered her and a male Wave Program student in the boys' bathroom with their clothes off. Plaintiffs, Mary Doe, as guardian of Jane Doe, and Mary Doe and John Doe individually, as parents of Jane Doe (“the Does”), allege that Jane was sexually assaulted harassed, and abused. They assert various federal constitutional, and common law tort claims against Dennis-Yarmouth Regional School District (Dennis-Yarmouth). Count I alleges that Dennis-Yarmouth was negligent in failing to supervise students who required 1 to 1 supervision for the entire school day under the Massachusetts Tort Claims Act, M.G.L. c. 258 § 2. Count II alleges a deprivation of due process rights under 42 U.S.C. § 1983. Count III alleges a violation of Section 504 of the Rehabilitation Act. 29 U.S.C. § 794 Count IV alleges a violation of Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1686.

Plaintiffs also assert claims against Abir Zaineh, the head of the Wave program, and Jane's assistant Susan Hardigan. Count V, VI, and VII allege a deprivation of Jane's rights as a handicapped person under Section 103 of Chapter 93 of Massachusetts General Laws by Dennis-Yarmouth, Abir Zaineh, and Susan Hardigan, respectively. Counts VIII and IX allege Intentional Infliction of Emotional Distress by the two individual defendants. Count X alleges loss of consortium for Plaintiffs Mary Doe and John Doe as parents of Jane Doe against all defendants.

After hearing, Zaineh and Hardigan's motions to dismiss (Dkt. 16, Dkt. 19) are ALLOWED (Counts VI, VII, VIII, IX, X). The Court determines there is no just reason for delay and grants Zaineh and Hardigan's motions for separate and final judgment under Federal Rule of Civil Procedure 54(b). Defendant Dennis-Yarmouth's motion to dismiss is ALLOWED IN PART (Counts II, III, VI, VII, X) and DENIED IN PART (Counts I, IV, and V).


The Complaint alleges the following facts.

I. Parties

While Jane had a chronological age of sixteen at the time of the alleged assault on February 5, 2018, she had the mental capacity of a six-year-old child. Jane was born with Phelan-McDermid Syndrome, a rare genetic condition that causes significant cognitive impairments. Due to her condition, Jane's Individualized Education Plan (“IEP”) required that she have a one-to-one assistant for the entire school day at Dennis-Yarmouth.

Defendant Abir Zaineh (Zaineh) was a lead teacher in the Wave Program in the Dennis-Yarmouth Regional School District. Defendant Susan Hardigan (Hardigan) was a one-to-one assistant in the Wave Program.

II. Dennis-Yarmouth Policies for One-to-One Assistants

Jane's IEP requires that she would be accompanied by her one-to-one assistant at all times throughout the school day. Staff at Dennis-Yarmouth further assured Jane's parents that Jane would not be left unsupervised at any time to ensure her safety and assist her when she needed help. Jane was unable to perform her basic bathroom functions consistently and with proper hygiene, so her assistant was always required to accompany her into the restroom.

The Does allege that [d]espite these requirements, when a 1 to 1 assistant was absent, the administration often failed to provide a substitute assistant, so there would not be enough staff to supervise all Wave program students.” Dkt. 1 ¶ 32. Furthermore, Wave staff members were entitled to a thirty-minute lunch period where they were, by contract, duty free. Dennis-Yarmouth did not account for this break when it scheduled and assigned staff as one-to-one assistants; there was no guarantee that students requiring one-to-one assistants would be supervised during their assistants' lunch breaks. Wave staff members ate their lunches at a table next to the Wave program students, but they were off the clock during their lunch period.

Defendants were all aware that this approach created gaps of unsupervised time and the risk that a child was not receiving one-to-one assistance. In the months leading up to the bathroom incident, Zaineh expressed concerns about the lack of substitutes. On January 26, 2018, Zaineh emailed the Assistant Principal, Mary O'Connor, to “discuss[] the bathroom and hygiene assistance that approximately six of the Wave program students required and explained that all of the 1 to 1 assistants were necessary.” Dkt. 1 ¶ 35. Plaintiffs allege that [d]espite this notice to the administration and acknowledgement by Zaineh of the necessity of 1 to 1 assistants, practices at Dennis-Yarmouth did not change.” Id. ¶ 36.

III. The Assault

On February 5, 2018, Jane and Christopher Coe, another student who required one-to-one supervision because of his Down Syndrome, were eating lunch in the cafeteria. Coe's one-to-one assistant was absent that day, but Dennis-Yarmouth did not provide a substitute. At 10:53 AM, Jane went to the staff table, which included Hardigan and Zaineh, to ask to use the restroom. Hardigan and Zaineh sent Jane to the restroom alone. Jane entered the girls' bathroom at 10:54 AM. Also at 10:54 AM, Coe asked the aids at the staff table if he could go to the water fountain. The teachers sent Coe to the water fountain alone. Coe then approached the girls' bathroom and waited outside. When Jane left the girls' bathroom, Coe asked Jane to go with him into the boys' bathroom. Jane and Coe entered the boys' bathroom at 10:57 AM.

Coe then removed all of Jane's clothing. Jane stated that Coe was not being nice to her, Coe “touched her front butt, ” and they hugged while they were naked. Id. ¶¶ 55-56.

By this point, fifteen minutes had passed since Jane and Coe left the cafeteria. No. one went looking for them until five minutes after lunch ended. At 11:09 AM, Hardigan looked for Jane in the girls' bathroom. At 11:10 AM, another assistant alerted Hardigan that Coe and Jane were in the boys' bathroom. When Hardigan entered the bathroom, Jane and Coe were naked in the large bathroom stall. Jane said they had been wrestling. Ten different male students entered the bathroom while Jane and Coe were inside. Two of those students were later criminally charged for secretly recording Jane and Coe in the bathroom.

As a result of this incident, Jane withdrew from Dennis-Yarmouth. Dennis-Yarmouth's Title IX Coordinator, Maria Lopes, later wrote that she did not conduct an investigation into the assault because “the February 5, 2018, encounter between [Jane] and the other student had been viewed as a mutual two-sided interaction.” Id. ¶ 111.


A complaint must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). At the motion to dismiss stage, we take the nonconclusory, nonspeculative facts contained in the complaint as true and draw all reasonable inferences from those facts in [Doe's] favor.” Doe v. Pawtucket Sch. Dep't, 969 F.3d 1, 5 (1st Cir. 2020) (quoting Hamann v. Carpenter, 937 F.3d 86, 88 (1st Cir. 2019)).


I. Count I: Negligence under Mass. Gen. Laws ch. 258, § 2

The Does bring a negligence claim against Dennis-Yarmouth under the Massachusetts Tort Claims Act (“MTCA”). Under the MTCA, [p]ublic employers shall be liable for injury . . . caused by 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. The Does allege that Dennis-Yarmouth breached its duty of care to Jane “by negligently failing to train, supervise, and otherwise failing to make scheduling and staffing decisions to ensure that all students requiring 1 to 1 supervision received such supervision for 100% of the school day.” Dkt. 1 ¶ 74.

Dennis-Yarmouth maintains that Massachusetts General Laws ch. 258, § 10(j) bars the Does' claims because [w]hen the allegations are that the municipality failed to act, or failed to appropriately act, sovereign immunity continues to apply.” Dkt. 22 at 5. Section 10(j) provides that the MTCA shall not apply to

any claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person, 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). However, an exception to the exclusion found in section 10(j)(1) allows a plaintiff to recover on “any claim based upon explicit and specific assurances of safety or assistance, beyond general representations that investigation or assistance will be or has been undertaken . . . provided that the injury resulted in part from reliance on those assurances.” Mass. Gen. Laws ch. 258, § 10(j)(1).

The Does adequately plead that their claim falls under this statutory exception to § 10(j).[1] They allege that [s]taff at DYRHS made verbal and written assurances to Jane's parents - related to Jane's Individualized Education Plan - that Jane would have a 1 to 1 assistant for the entire school day to ensure her safety and assist with daily...

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