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Case 1:17-cv-12337-IT Document 10 Filed 12/20/17 Page 1 of 16

UNITED STATES DISTRICT COURT


DISTRICT OF MASSACHUSETTS

JANE DOE,
Plaintiff
CIVIL ACTION NO. 17-12337-IT
v.

TOWN OF STOUGHTON, JULIETTE


MILLER and
MARGUERITE RIZZI,
Defendants

DEFENDANTS’, TOWN OF STOUGHTON, JULIETTE MILLER, AND


MARGUERITE RIZZI, MEMORANDUM OF LAW IN SUPPORT
OF THEIR MOTION TO DISMISS

The Defendants, Town of Stoughton (the “Town”), Juliette Miller (“Miller”), and

Marguerite Rizzo (“Rizzo”) (collectively the “Defendants”), hereby move this Honorable Court

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss Plaintiff’s

Complaint in its entirety.

PRELIMINARY STATEMENT

Plaintiff, Jane Doe (“Doe” or “Plaintiff”), brings claims against the Town of Stoughton,

Juliette Miller, and Marguerite Rizzo resulting from a sexual relationship that she allegedly had

with a male teacher, Timothy Norton (“Norton”), while attending Stoughton High School

(“SHS”). Plaintiff alleges that the Defendants violated M.G.L. c. 119 § 51A, M.G.L. c. 151C,

Title IX, M.G.L. c. 71 § 370, and M.G.L. c. 12 §§ H-I when they failed to recognize and take

action to stop the alleged improper relationship between Plaintiff and Norton. Additionally,

Plaintiff alleges that the Town violated M.G.L. c. 258 and M.G.L. c. 71 § 37L.

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STATEMENT OF FACTS

Plaintiff alleges that during the 2013-2014 academic year she became involved in an

afterschool program called Destination Imagination at SHS. (Pltf. Compl. Dkt. No 1 pg. 2 at ¶

11-12). Destination Imagination is a program that is part of a national non-profit organization

that promotes 21st century skills and teaches students in the areas of science, math, technology

and engineering. (Id. at ¶ 12). Students involved in Destination Imagination would participate in

tournaments whereby groups of students were tasked with developing solutions to open ended

problems. (Id. at ¶ 12). In order to prepare for tournaments, students would spend several hours

after school formulating their solutions. (Id. at ¶ 13). Plaintiff alleges that Norton was the school

advisor for Destination Imagination and the students participating in the program primarily

prepared for their tournaments in Norton’s classroom under his supervision. (Id. at ¶ 11).

Plaintiff alleges that during the 2014-2015 academic year, when she was a junior, she

again participated in Destination Imagination under the supervision of Norton. (Id. at ¶ 14).

Plaintiff also alleges that during her junior year she was in Norton’s project management class.

(Id. at ¶ 14). Plaintiff alleges that there was a separate backroom in Norton’s classroom that was

attached to the main classroom by a door. (Id. at ¶ 15). Plaintiff alleges that the backroom in

Norton’s classroom had limited availability for people to see what was going on inside. (Id. at ¶

15).

Plaintiff alleges that during her junior year, while participating in the Destination

Imagination program, Norton began to “groom” her. (Id. at ¶ 16). Plaintiff alleges that Norton

“groomed” her by: (1) allowing Plaintiff to keep her personal and school belongings in his

classroom, (2) allowing Plaintiff to rest in the backroom of his classroom during class, (3)

engaging in intimate one-on-one conversations with Plaintiff whereby they would discuss

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Plaintiff’s home life and non-educational matters in the presence of other students (4) texting

Plaintiff on a regular basis, (5) spending time with Plaintiff during school hours, and (6)

spending time alone with Plaintiff outside of school hours. (Id. at ¶ 16). Plaintiff also alleges

that from her junior year up until the time she graduated, Norton would provide her with passes

that enabled her to spend a significant amount of time in his classroom and he would provide

written requests to other teachers removing her from other classes in order to spend time with

him in his classroom. (Id. at ¶ 17).

Plaintiff alleges that she and Norton first became “physical” in November of 2014 and

they subsequently engaged in intercourse in February of 2015. (Id. at ¶ 19). Plaintiff alleges that

in the Fall of 2015 Miller conducted an investigation into Norton and Plaintiff’s relationship

because a classmate of Plaintiff’s reported that Norton was allegedly providing Plaintiff with

special treatment. (Id. at ¶ 20). Additionally, Plaintiff alleges that Miller received reports from a

student and teacher indicating that they saw Plaintiff exit her vehicle and enter Norton’s vehicle

near the school (Id. at ¶ 20). Plaintiff alleges that Miller questioned Plaintiff for about 15-30

minutes regarding the allegations made by the student and teacher. (Id. at ¶ 21). Plaintiff alleges

that Miller subsequently interviewed Norton regarding the allegations made by the student and

teacher. (Id. at ¶ 15). Plaintiff alleges that neither she nor Norton were disciplined as a result of

the investigation. (Id. at ¶ 23).

Plaintiff alleges that her relationship with Norton continued while she began her

undergraduate education and subsequently ended in September 2017. (Id. at ¶¶ 23, 30). Plaintiff

alleges that she told Cathy Boulger (“Boulger”), a teacher at SHS, about her relationship with

Norton after it ended. (Id. at ¶ 30). Plaintiff alleges that Boulger immediately reported Plaintiff’s

relationship with Norton to the SHS principal and other administrative personnel. (Id. at ¶ 31).

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Plaintiff also alleges that SHS served Norton with a termination letter and reported the matter to

the Stoughton Police Department. (Id. at ¶ 32).

FED.R.CIV.P. 12(B)(6) STANDARD OF REVIEW

Under Fed.R.Civ.P. 12(b)(6), a motion to dismiss for failure to state a claim is evaluated

by “taking it through the well-pleaded facts contained in the Complaint and drawing all

reasonable inferences therefrom in plaintiffs' favor.” Phoung Luc v. Wyndham Mgmt. Corp., 496

F.3d 85, 88 (1st Cir. Mass. 2007). The pleading rules are “not entirely toothless,” Fleming

v. Lind-Waldeck & Co., 922 F.2d 20, 23 (1st Cir. 1990) and the “minimal requirements are not

tantamount to nonexistent requirements.” Gilbert v. Cambridge, 932 F.2d 51, 62 (1st Cir. 1991).

In reviewing a motion to dismiss pursuant to Rule 12(b)(6), a court must “accept well-pleaded

facts as true and draw all reasonable inferences from those facts in favor of the plaintiff.”

Figueroa v. Rivera, 147 F.3d 77, 80 (1 51 Cir. 1998). However, the deference afforded

allegations contained within a complaint does not extend to “self-serving generalities or

unsubstantiated conclusions.” Gilbert, 932 F.2d at 62. “Empirically unverifiable conclusions,

not logically compelled, or at least supported by the stated facts,” deserve no deference. United

States v. A VX Corp., 962 F .2d 108, 114 n. 8 (1st Cir. 1992). Where it appears from a review of

the complaint that the plaintiff could not legally recover under the facts as plead, dismissal is

appropriate. Hogan v. Eastern Enterprises/Boston Gas, 165 F. Supp2d 55, 57 (D. Mass. 2001).

ARGUMENT

I. PLAINTIFF’S CLAIMS UNDER M.G.L. c. 258 FAIL AS A MATTER OF


LAW.

A. Plaintiff’s M.G.L. c. 258 Claims Fail as a Matter of Law Because the Town
cannot be Liable for Conduct outside of the Scope of Employment.

M.G.L. c. 258, § 2, the Massachusetts Tort Claims Act ("MTCA"), provides for liability

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of public employers for injuries caused by the negligent acts or omissions of public employees

while acting within the scope of official employment. “Sexual misconduct by a teacher clearly

falls outside the scope of employment.” Doe v. Dubeck, CA No. 05-11163-RWZ, 2006 U.S. Dist.

LEXIS 40429 at *8 (D. Mass. June 19, 2006). Therefore, Plaintiff cannot maintain a claim under

the MTCA against the Town for Norton’s alleged sexual misconduct.

Accordingly, Count I (Doe v. Town) alleging violations of the MTCA of Plaintiff’s

Complaint must be dismissed.

B. Plaintiff’s MTCA Claims Fail as a Matter of Law Because the Town Cannot
be Liable for Intentional Torts under M.G.L. c. 258 § 10(c).

M.G.L. c. 258 § 10(c) specifically provides that a municipality is not liable for the

intentional torts allegedly committed by its employees. Therefore, Plaintiff cannot maintain a

claim under the MTCA against the Town for any alleged intentional torts committed by Norton

or any other school personnel.

Accordingly, Count I (Doe v. Town) alleging violations of the MTCA of Plaintiff’s

Complaint must be dismissed.

C. Plaintiff’s M.G.L. c. 258 Claims Fail as a Matter of Law Because M.G.L. c.


258 § 10(j) Protects a Municipality from Claims Based upon the Failure to
Prevent Harm.

M.G.L. c. 258 § 10(j) protects a municipality from liability “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.” Therefore, “in order that

a claim not be barred by § 10(j), the claim must involve something more than the pure failure to

alleviate a private harm and that to be successful a claimant must show some involvement of a

public employee in creating the initial injury-causing scenario, not simply a failure to respond

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adequately after it arises.” Armstrong v. Lamy, 938 F. Supp. 1018, 1043 (D. Mass. 1996). As a

result, claims based upon alleged negligence in failing to protect a student from alleged sexual

abuse are barred by M.G.L. c. 258 § 10(j). Armstrong, 938 F. Supp. at 1044. Similarly, claims

based on a municipality’s alleged failure to "train," "supervise," "regulate," "control," or

"correct" the alleged sexual abuser are barred § 10(j). Id.

Plaintiff’s MTCA claims, including the alleged failure to train/supervise Norton, fail as a

matter of law because the crux of Plaintiff’s Complaint is based upon the Town’s alleged failure

to prevent and/or stop Plaintiff and Norton from having a sexual relationship. Simply put,

Plaintiff’s claims stem from the Town’s alleged failure to prevent or mitigate harm, which

cannot provide for a cause of action under M.G.L. c. 258. See Armstrong, 938 F. Supp. at 1044;

see also Doe v. D'Agostino, 367 F. Supp. 2d 157, 177 (D. Mass. 2005) (Granting summary

judgment for municipality pursuant to § 10(j) resulting from allegations of municipal employee’s

failure to properly investigate complaints of sexual misconduct). Moreover, Plaintiff’s Complaint

is devoid of any factual allegations illustrating that the Town originally caused Norton to

sexually harass Plaintiff. See Doe v. Old Rochester Regional Sch. Dist., 56 F. Supp. 2d 114, 121

(D. Mass. 1999) (finding Defendant was not original cause under § 10(j) when it knew teacher

sexually assaulted other students and failed to limit teachers access to other female students).

Therefore, Plaintiff’s MTCA claims fail as a matter of law.

Accordingly, Count I (Doe v. Town) alleging violations of the MTCA of Plaintiff’s

Complaint must be dismissed.

D. Plaintiff’s M.G.L. c. 258 Negligent Training and Supervision Claims Fail as a


Matter of Law Because there is no Actionable Underlying Tortious Conduct.

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Plaintiff alleges that the Town’s employees, including Miller and Rizzi were inadequately

trained and supervised as to their duties as mandated reporters. (Pltf. Compl. Dkt. No 1 pg. 5 at

¶¶ 25-27). Additionally, Plaintiff alleges that Miller was inadequately trained and supervised as

to her duties in conducting investigations. (Id. at ¶ 26)

“Massachusetts cases have only allowed supervisory negligence claims against

municipalities where the municipality knew or should have known about an underlying,

identifiable tort which was committed by named or unnamed public employees.” Kennedy v.

Town of Billerica, 617 F.3d 520, 533 (1st Cir. 2010). Moreover, “no Massachusetts case has

been cited to us that has ever recognized a supervisory negligence claim against municipalities

for generalized, free-standing, and unspecified wrongs when no individual employee or group of

employees committed an underlying tort.” Id. “Although Chapter 119, section 51A, is generally

intended to protect the children of Massachusetts, it does not create a legal duty owed by

mandated reporters for the purpose of a negligence action.” Roe v. Children's Hosp. Med. Ctr.,

2012 Mass. Super. LEXIS 191, *14, 2012 WL 3637246 (Mass. Super. Ct. July 12, 2012).

Here, Plaintiff’s claims for negligent training and supervision fail as a matter of law

because M.G.L. c. 119 § 51A does not create a private right of action. Additionally, as discussed

above M.G.L. c. 258 § 10(j) precludes Plaintiff from bringing suit based upon the failure to

prevent or mitigate harm. Moreover, neither Miller nor Rizzi committed a tortious act against

Plaintiff. Therefore, Plaintiff’s negligent training and supervision claims are not based upon an

underlying identifiable tort for which the Town can be liable. Consequently, Plaintiff’s claims

for negligent training and supervision fail as a matter of law.

Accordingly, Count I (Doe v. Town) alleging violations of the MTCA of Plaintiff’s

Complaint must be dismissed.

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II. PLAINTIFF’S CLAIMS UNDER M.G.L. c. 119 § 51A FAIL AS A MATTER


OF LAW BECAUSE THE STATUTE DOES NOT CREATE A PRIVATE
RIGHT OF ACTION.

Plaintiff attempts to assert a claim pursuant to M.G.L. c. 119, § 51A against the Town,

Miller and Rizzi. Said statute requires persons that qualify as mandated reporters to report

suspected child abuse to the Department of Social Services. M.G.L. c. 119, § 51A expressly

provides that “whoever violates this section shall be punished by a fine of not more than $1,000.”

Despite creating a statutory fine, M.G.L. c. 119, § 51A does not create a private right of action.

Doe v. Dubeck, CA No. 05-11163-RWZ, 2006 U.S. Dist. LEXIS 40429 at *18-20 (D. Mass. June

19, 2006). Therefore, Plaintiff’s claims under M.G.L. c. 119, § 51A fail as a matter of law.

Accordingly, Count II (Doe v. Town), Count III (Doe v. Miller), and Count IV (Doe v.

Rizzi) alleging violations of M.G.L. c. 119, § 51A must be dismissed.

III. PLAINTIFF’S CLAIMS UNDER M.G.L. c. 71 §§ 37L, 37O FAIL AS A


MATTER OF LAW BECAUSE THE STATUTES DO NOT CREATE A
PRIVATE RIGHT OF ACTION.

Plaintiff attempts to assert a claim pursuant to M.G.L. c. 71, §§ 37L, 37O against the

Town, Miller and Rizzi. M.G.L. c. 71 §§ 37L, 37O are public policy statutes enacted to protect

students in public schools. The provisions of both statutes fail to provide for a private right of

action. See M.G.L. c. c. 71 § 37L and M.G.L. c. 71 § 37O; see also Morgan v. Town of

Lexington, 823 F.3d 737, 741 at n. 2 (1st Cir. 2016) (stating that “the legislature made the choice

not to "create a private right of action" through M.G.L. c. 71 § 37O). Therefore, Plaintiff’s

claims under M.G.L. c. c. 71 § 37L and M.G.L. c. 71 § 37O fail as a matter of law.

Accordingly, Count II (Doe v. Town), Count III (Doe v. Miller), and Count IV (Doe v.

Rizzi) alleging violations of M.G.L. c. c. 71 § 37L and M.G.L. c. 71 § 37O must be dismissed.

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IV. PLAINTIFF’S CLAIMS UNDER M.G.L. c. 151C AGAINST THE


DEFENDANTS FAIL AS A MATTER OF LAW BECAUSE PLAINTIFF DID
NOT EXHAUST HER ADMINISRATIVE REMEDIES PRIOR TO PRIOR TO
FILING SUIT.

In relevant part, M.G.L. c. 151C § 2(g) makes it unlawful for any educational institution

“[t]o sexually harass students in any program or course of study in any educational institution.”

In order to bring claims under M.G.L. c. 151C, “Plaintiffs must satisfy the administrative

exhaustion requirement of Mass. Gen. L. c. 151B, § 9, 1 made applicable to c. 151C under Mass.

Gen. L. c. 214, § 1C. 2” Harrington v. City of Attleboro, 172 F. Supp. 3d 337, 351 (D. Mass.

2016); see also Bloomer v. Becker College, CA. No. 09-11342-FDS, 2010 U.S. Dist. LEXIS

82997 at *17-20 (D. Mass. Aug. 13, 2010) (discussing requirement of exhausting administrative

remedies prior to filing suit under M.G.L. c. 151C). Simply put, prior to filing suit, Plaintiff must

have filed a charge of discrimination with the Massachusetts Commission Against

Discrimination (“MCAD”).

Here, Plaintiff failed to file a charge of discrimination with MCAD prior to filing suit.

Therefore, Plaintiff has failed to exhaust her administrative remedies and as such her claims

under M.G.L. c. 151C fail as a matter of law.

1
In relevant part, M.G.L c. 151B, § 9 states “Any person claiming to be aggrieved by a practice made unlawful
under this chapter or under chapter one hundred and fifty–one C, or by any other unlawful practice within the
jurisdiction of the commission, may, at the expiration of ninety days after the filing of a complaint with [MCAD], or
sooner if a commissioner assents in writing, but not later than three years after the alleged unlawful practice
occurred, bring a civil action for damages or injunctive relief or both in the superior or probate court for the county
in which the alleged unlawful practice occurred or in the housing court within whose district the alleged unlawful
practice occurred if the unlawful practice involves residential housing.”
2
M.G.L c. 214, § 1C states “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. Any such action shall be commenced in the superior court within the time allowed by said section 9 of said
chapter 151B. No claim under this section that is also actionable under chapter 151B or chapter 151C shall be
brought in superior court unless a complaint was timely filed with the Massachusetts commission against
discrimination under said chapter 151B.”

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Accordingly, Count II (Doe v. Town), Count III (Doe v. Miller), and Count IV (Doe v.

Rizzi) alleging violations of M.G.L. c. 151C must be dismissed.

V. PLAINTIFF’S CLAIMS UNDER M.G.L. c. 151C AGAINST MILLER AND


RIZZI FAIL AS A MATTER OF LAW BECAUSE PERSONS CANNOT BE
LIABLE UNDER THE STATUTE.

Assuming arguendo, Plaintiff’s claims under M.G.L. c. 151C were viable, these claims

fail as a matter of law against Miller and Rizzi because persons cannot be liable under the statute.

M.G.L. c. 151C § 2(g) makes it unlawful for any educational institution “[t]o sexually

harass students in any program or course of study in any educational institution.” In relevant

part, M.G.L. c. 151C, § 1 defines educational institution as “any institution for instruction or

training.” Here, M.G.L. c. 151C undeniably does not create a private right of action against

persons. See M.G.L. c. 151C; Thomas v. Salem State Univ. Found., Inc., 2011 U.S. Dist. LEXIS

121036, *15-16, 2011 WL 5007973 (D. Mass. Oct. 18, 2011). Therefore, Plaintiff’s claims under

M.G.L. c. 151C against the individual defendants fail as a matter of law.

Accordingly, Count III (Doe v. Miller) and Count IV (Doe v. Rizzi) alleging violations of

M.G.L. c. 151C must be dismissed.

VI. PLAINTIFF’S TITLE IX CLAIMS FAIL AS A MATTER OF LAW AGAINST


MILLER AND RIZZI BECAUSE THE STATUTE DOES NOT CREATE A
PRIVATE RIGHT OF ACTION AGAINST INDIVIDUAL DEFENDANTS.

Title IX provides, in part, that: “no person . . . shall, on the basis of sex, be excluded from

participation in, be denied the benefits of, or be subjected to discrimination under any

educational program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a).

Accordingly, the private right of action created under Title IX “extends only to claims against the

educational institution itself.” Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 65 (1st Cir. 2002).

Therefore, Plaintiff’s Title IX claims against Miller and Rizzi fail as a matter of law because the

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statute does not create a private right of action against individual defendants.

Accordingly, Count III (Doe v. Miller), and Count IV (Doe v. Rizzi) alleging violations

of Title IX must be dismissed.

VII. PLAINTIFF’S TITLE IX CLAIMS AGAINST THE TOWN FAIL AS A


MATTER OF LAW BECAUSE PLAINTIFF HAS PLEAD INSUFFICIENT
FACTS TO SUPPORT HER CLAIMS.

To succeed on a Title IX claim against an educational institution, a plaintiff must show

"(1) that [he or she] was a student, who was (2) subjected to harassment (3) based upon sex; (4)

that the harassment was sufficiently severe and pervasive to create an abusive educational

environment; and (5) that a cognizable basis for institutional liability exists." Frazier v.

Fairhaven Sch. Comm., 276 F.3d 52, 66 (1st Cir. 2002). To satisfy the fifth part of that standard,

a plaintiff must show that a school official authorized to take corrective action had "actual

knowledge" of the sexual harassment and either failed to act or exhibited "deliberate

indifference" to it. Id. Plaintiff fails to allege factual allegations in her Complaint supporting the

“actual knowledge” and “deliberate indifferent” elements of her Title IX claim.

A. Plaintiff’s Title IX Claims Fail as a Matter of Law Because the Town did not
Have Actual Knowledge of the Alleged Sexual Harassment.

In the Title IX context, “[c]ourts have generally interpreted "actual knowledge" as

requiring highly reliable and similar reports of inappropriate teacher behavior.” Doe v.

Bradshaw, 203 F. Supp. 3d 168, 185 (D. Mass. 2016). Moreover “inappropriate behavior of a

different nature than the eventual harassment cannot give rise to actual knowledge for Title IX

purposes.” Id. Furthermore, “the case law is clear that only reliable and unambiguous reports

have been deemed sufficient to provide actual knowledge.” Id. at 187.

Plaintiff’s Title IX claim against the Town fails as a matter of law because she has failed

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to plead facts illustrating that the Town had actual knowledge of the alleged sexual harassment

while Plaintiff was a student at SHS. Here, the only allegations in Plaintiff’s Complaint that hint

at the Town having knowledge of any alleged sexual harassment are: 1) a student reported to

SHS that Norton was providing Plaintiff with special treatment, and 2) a student and teacher

reported to SHS that they saw Plaintiff get into Norton’s vehicle. (Pltf. Compl., Dkt. No 1, pg. 4

at ¶ 20). However, there is nothing about the above described allegations that rises to the level of

actual knowledge in the Title IX context. See Doe v. Bradshaw, 203 F. Supp. 3d 168, 185-86 (D.

Mass. 2016) (finding no actual knowledge when school received reports that teacher was buying

alcohol for students, there were unsubstantiated rumors that teacher had inappropriate

relationship with student, and another teacher reported overly familiar behavior between student

and teacher); Doe v. D'Agostino, 367 F. Supp. 2d 157, 165-67 (D. Mass. 2005) (finding no actual

knowledge when school received reports that teacher was making comments about girls’

genitals, teacher was incentivizing students with personal trips, teacher was holding students’

hands while walking down hallways, and teacher was tickling students). Indeed, “inappropriate

behavior of a different nature than the eventual harassment cannot give rise to actual knowledge

for Title IX purposes.” Doe v. Bradshaw, 203 F. Supp. 3d at 185. Here, it is undeniable that the

allegations in Plaintiff’s Complaint cannot impute actual knowledge on the Town. Therefore,

Plaintiff’s Title IX claims fail as a matter of law.

Accordingly, Count II (Doe v. Town) alleging violations of Title IX must be dismissed.

B. Plaintiff’s Title IX Claims Fail as a Matter of Law Because the Town was not
Deliberately Indifferent to the Alleged Sexual Harassment.

An educational institution is deliberately indifferent when its "response to the harassment

. . . is clearly unreasonable in light of the known circumstances." Davis v. Monroe, 526 U.S. 629,

644 (1999). Under Title IX “[t]he test is objective -- whether the institution's response, evaluated

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in light of the known circumstances, is so deficient as to be clearly unreasonable.” Id. Moreover,

"Title IX does not require educational institutions to take heroic measures, to perform flawless

investigations, [or] to craft perfect solutions." Fitzgerald v. Barnstable Sch. Comm., 504 F.3d

165, 174 (1st Cir. 2007), rev'd on other grounds, 555 U.S. 246, 129 S. Ct. 788, 172 L. Ed. 2d 582

(2009).

Plaintiff’s Title IX claim fails as a matter of law because she has failed to plead any facts

demonstrating that the Town’s response to the alleged harassment was clearly unreasonable. To

this point, the Town received the above described reports from a student and teacher, which did

not suggest sexual harassment, and it acted appropriately by conducting an investigation. During

the investigation Norton and Plaintiff 3 were interviewed and questioned about their relationship.

Subsequently, the investigation concluded and neither Norton nor Plaintiff were disciplined

because the investigation did not expose any sexual harassment. Moreover, Plaintiff’s complaint

is devoid of any allegations demonstrating that Plaintiff or any other person notified the Town

about Plaintiff’s relationship with Norton while Plaintiff was a student at SHS. Here, there are

simply no allegations in Plaintiff’s complaint suggesting that the Town’s response was

unreasonable in light of the known circumstances. This is not a situation where the Town

received notice that Plaintiff was having a sexual relationship with Norton and failed to act or

turned a blind eye. Here, the Town had no articulable evidence that Norton was sexually

harassing Plaintiff. Indeed, the only evidence available to the Town was that Norton was

providing plaintiff with special treatment and that Plaintiff got into Norton’s car. These

allegations in no way suggest that Norton was sexually harassing Plaintiff.

In reality, the Town did not become aware of Plaintiff’s relationship with Norton until

3
Here, there are no allegations in Plaintiff’s complaint alleging that during Plaintiff’s interview she complained of
sexual harassment.

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September of 2017, after Plaintiff graduated. Immediately upon learning of the relationship, the

Town terminated Norton’s employment and reported the matter to the Stoughton Police

Department. (Id. at pg. 5, ¶ 23; pg. 6 ¶ 30-32). Here, it is undeniable that the Town’s initial

investigation and subsequent termination of Norton were reasonable in light of the known

circumstances. Therefore, Plaintiff’s Title IX claim fails as a matter of law.

Accordingly, Count II (Doe v. Town) alleging violations of Title IX must be dismissed.

VIII. PLAINTIFF’S CLAIMS UNDER M.G.L. c. 12 §§H-I AGAINST THE TOWN


FAIL AS A MATTER OF LAW BECAUSE THE TOWN IS NOT A PERSON
UNDER THE STATUTE.

The Massachusetts Civil Rights Act (“MCRA”), M.G.L. c. 12 §§H-I, holds persons

accountable for violations of civil rights that stem from threats, intimidation or coercion. M.G.L.

c. 12, § 11H-I. It is well settled law that “a municipality is not a "person" covered by the

Massachusetts Civil Rights Act.” Howcroft v. City of Peabody, 51 Mass. App. Ct. 573, 591-592

(2001). Accordingly, a municipality may not be subject to suit under the MCRA. Id. Therefore,

Plaintiff’s MCRA claims against the Town fail as a matter of law.

Accordingly, Count II (Doe v. Town), alleging violations of M.G.L. c. 12 §§H-I must be

dismissed.

IX. PLAINTIFF’S CLAIMS UNDER M.G.L. c. 12 §§H-I AGAINST MILLER AND


RIZZI FAIL AS A MATTER OF LAW BECAUSE THEY DID NOT
THREATEN, INTIMIDATE, OR COERCE PLAINTIFF.

In order to state a claim under sections 11H and 11I of the MCRA, "the plaintiff must

prove that the defendants used 'threats, intimidation or coercion' to interfere with, or attempt to

interfere with rights secured by the Constitution or laws of the United States or of the

Commonwealth of Massachusetts." Brum v. Town of Dartmouth, 428 Mass. 684, 704 N.E.2d

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1147, 1162 (Mass. 1999). "Threat in this context involves the intentional exertion of pressure to

make another fearful or apprehensive of injury or harm.” Planned Parenthood League v. Blake,

417 Mass. 467, 474 (1994). "Intimidation involves putting in fear for the purpose of compelling

or deterring conduct.” Id. “Coercion [involves] the application to another of such force, either

physical or moral, as to constrain him to do against his will something he would not otherwise

have done." Id.

Plaintiff’s MCRA claims against Miller and Rizzi fail as a matter of law because the

complaint is devoid of any factual allegations illustrating that Miller and/or Rizzi threatened,

intimidated, or coerced Plaintiff. Indeed, the allegations against Miller and Rizzi are that they

should have recognized Norton’s alleged “grooming” behavior, that they neglected their duties

as mandated reporters, and that they should have investigated further into Norton and Plaintiff’s

alleged relationship. (See Pltf. Compl., Dkt. No. 1, ¶¶ 24, 26, 27, 29). These allegations simply

do not amount to threats, intimidation, or coercion and as a result Plaintiff’s MCRA claims fail

as a matter of law.

Accordingly, Count III (Doe v. Miller) and Count IV (Doe v. Rizzi) alleging violations of

M.G.L. c. 12 §§H-I must be dismissed.

CONCLUSION

For the above stated reasons, Defendants, Town of Stoughton, Juliette Miller, and

Marguerite Rizzo, respectfully move this Court to dismiss all counts asserted against them in the

Plaintiff’s Complaint pursuant to Fed. R. Civ. P. 12(b)(6).

15
Case 1:17-cv-12337-IT Document 10 Filed 12/20/17 Page 16 of 16

Defendants,
Town of Stoughton, Juliette Miller and
Marguerite Rizzi,

By their attorney,

/s/Douglas I. Louison
_____________________________
Douglas I. Louison, BBO# 545191
dlouison@lccplaw.com
Louison, Costello, Condon & Pfaff, LLP
101 Summer Street
Boston, MA 02110
(617) 439-0305
Date: December 20, 2017

CERTIFICATE OF SERVICE

I, hereby certify that on December 20, 2017, the foregoing document was served via ECF
or first class mail, postage prepaid to the following:

Richard J. Rafferty, Esq.


Eden Rafferty
238 Shrewsbury Street
Worcester MA 01604

Robert A. Curley, Jr., Esq.


Curley & Curley, P.C.
35 Braintree Hill Office Park
Suite 103
Braintree, MA 02184

/s/Douglas I. Louison

16
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Case 1:17-cv-12337-IT Document 12 Filed 12/20/17 Page 2 of 2