Case 1:17-cv-11599 Document 1 Filed 08/25/17 Page 1 of 24 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS PARENT, MICHAEL TESTA and SUSAN L. VICCARO, Defendants JANE ROE, Plaintiff C. A. No. v. CITY OF NEWBURYPORT, MICHAEL JURY TRIAL DEMANDED COMPLAINT I. PARTIES AND JURISDICTION 1. Plaintiff Jane Roe resides in Newburyport, Essex County, Massachusetts. 2. Defendant City of Newburyport is a municipal corporation in Essex County, Massachusetts. 3. Newburyport Public Schools District is a public school district providing educational services for defendant City of Newburyport. Newburypoft High School is a high school in the NPSD. 4. Defendant Michael Parent (?Parent?) was, at all times relevant, the principal at NHS. 5. Defendant Michael Testa ("Testa") was, at all times relevant, the associate principal at NHS. 6. Defendant Susan L. Viccaro is and was, at all. times relevant, the superintendent of the NPSD. 7. Plaintiff Jane Roe was, at all times relevant, a student at NHS. 10. 11. 12. 13. 14. Case 1:17-cv-11599 Document 1 Filed 08/25/17 Page 2 of 24 NPSD receives federal ?nancial assistance and is therefore subject to the dictates of 20 U.S.C. 1681. ("Title This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. 1331 and over state law claims pursuant to 28 U.S.C. 1367. Venue in this Court is proper under 28 U.S.C. 1391 because the events giving rise to this claim took place in this judicial district, and Defendants reside in this judicial district. 11. BACKGROUND FACTS RELEVANT TO ALL COUNTS A. The Dear Colleague Letter The Of?ce of Civil Rights a division of the United States Department of Education is responsible for the implementation, interpretation, and enforcement of Title IX. The OCR has promulgated numerous documents outlining the requirements for an educational institution to be in compliance with Title IX, including the Dear Colleague Letter of April 4, 2011 which specifically concerns peer?on?peer sexual harassment and sexual assault. The DOE was authorized by Congress, pursuant to 20 U.S.CA. 1682, to promulgate regulations to govern the implementation, interpretation and enforcement of Title IX. The DCL is a "signi?cant guidance document," intended to provide educational institutions with clarity as to the requirements they must follow in order to be in compliance with the DOE. Pursuant to 72 Fed. Reg. 3432, a "guidance document" is "an agency statement of general applicability and future effect, other than a regulatory sets forth a policy on a statutory, regulatory, or technical issue or an interpretation of a statutory or regulatory issue." A "signi?cant guidance documen is "a 15. 16. 17. 18. 19. 20. Case 1:17-cv-11599 Document 1 Filed 08/25/17 Page 3 of 24 guidance document disseminated to regulated entities or the general public that may reasonably be anticipated (iv) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in Executive Order 12866, as further amended." The DCL speci?cally outlines the requirements that educational institutions must follow regarding peer?on?peer sexual harassment and assault. A failure to adhere to the requirements outlined in the DCL could result in the loss of federal funding for an educational institution. The DCL states that "Schools are required to publish a notice of nondiscrimination and to adopt and publish grievance procedures." The DCL also requires that school "employees are trained so that they know to report harassment to appropriate school officials, and so that employees with the authority to address harassment know how to respond properly.? The DCL requires that a school identify the name, title and contact information of the person designated to coordinate the school's compliance with Title IX. This coordinator is responsible for overseeing all Title IX complaints. This coordinator should not have any other job responsibilities that may create a con?ict of interest. Further, the school must ensure that this coordinator has adequate training on Title IX. The DCL also notes that "If a student ?les a complaint with the school, regardless of Where the conduct occurred, the school must process the complaint in accordance with its established procedures." In other words, a school is responsible for processing complaints of student-on-student harassment or assault, even if it occurs off campus, because "students often experience the continuing effects of off-campus conduct in the 21. 22. 23. 24. 25. 26. Case 1:17-cv-11599 Document 1 Filed 08/25/17 Page 4 of 24 educational setting. . Further, the DCL states that a law enforcement investigation does not relieve the school of its independent Title IX obligation to investigate a claim of assault. The DCL states, Title IX requires that the school's inquiry into peer-on-peer sexual harassment and assault "must be prompt, thorough, and impartial.? The DCL requires the school to "tell the complainant that Title IX prohibits retaliation, and that school of?cials will not only take steps to prevent retaliation but also strong responsive action if it occurs.? In addition to resolving complaints the DCL also addresses OCR recommendations regarding the use of preventive education programs and comprehensive victim services. Per the DCL, such education and training may be included in ?orientation programs for new students, faculty, staff, and employees." The DCL also outlines OCR recommendations regarding complainant safety. The DCL states, "Title IX requires a school take steps to protect the complainant as necessary, including taking interim steps before the ?nal outcome of the investigation. The school should take these steps once it has notice of a sexual harassment or violence allegation." The DCL continues, "When taking steps to separate the complainant and alleged perpetrator, a school should minimize the burden on the complainant, and thus should not, as a matter of course, remove complainants from classes or housing while allowing alleged perpetrators to remain." The DCL speci?cally addresses retaliation, stating, "Schools should be aware that complaints of sexual harassment or violence may be followed by retaliation by the alleged perpetrator or his or her associates. For instance, friends of the alleged Case 1:17-cv-11599 Document 1 Filed 08/25/17 Page 5 of 24 perpetrator may subject the complainant to name?calling and taunting. As part of their Title IX obligations, schools must have policies and procedures in place to protect against retaliatory harassment. B. Background Facts Relevant To Sexual Misconduct Policies and Procedures 27. At the time of the conduct alleged herein, NPSD maintained a Policy Against Harassment Procedures ("Policy"). The Policy states, in relevant part: a. Upon receipt of a report or complaint of alleged prohibited conduct, the responsible administrator or designee shall initiate a timely investigation of the complaint. The investigation may consist of personal interview with the complainant(s). The individual(s) against whom the complaint is ?led, and others that may have knowledge of the alleged incident(s) or circumstances giving rise to the complaint. The investigation may also consist of any other methods and documents deemed pertinent by the investigator. The investigation will be completed as soon as practicable, and written reports will be ?led by the building contact person with the District Human Rights Of?cer. The District Human Rights Of?cer will give periodic reports to the Superintendent on the status and outcome of complaints. The complainant will be informed in writing as to whether or not the allegation of harassment was substantiated. It is the responsibility of the Superintendent to determine disciplinary action if necessary. Upon completion of an investigation and substantiation of the complaint. The Case 1:17-cv-11599 Document 1 Filed 08/25/17 Page 6 of 24 School District will take appropriate corrective action. Such action may include, but is not limited to, an apology, direction to stop the offensive behavior, counseling or training, warning, suspension, exclusion, expulsion, transfer, remediation, termination, or discharge. School District action taken for violation of this policy will be consistent with requirements of applicable collective bargaining agreements, Massachusetts and federal laws and School District policies. At the close of an investigation, the complainant will be informed in writing that the alleged harassment was substantiated or not substantiated. The School District will discipline or take appropriate actions against any student, teacher, administrator, or school employee who retaliates against any person who reports an alleged violation of this policy or any person who testi?es, assists, or participates in an investigation, or who testifies, assists, or participates in a proceeding or hearing relating to such harassment. Retaliation includes, but is not limited to, any form of intimidation, reprisal or harassment. 28. Under the heading "Harassment and Discrimination Policy," the Policy stated, in relevant part: is committed to safeguarding the rights of all students to learn in an environment that is free from all forms of harassment." "Therefore, the administration condemns and prohibits all unwelcome behavior that interferes with school performance and creates an intimidating, hostile and/or offensive educational environment.? "The consequences for physical, verbal or sexual harassment may include 29. 30. 31. Case 1:17-cv-11599 Document 1 Filed 08/25/17 Page 7 of 24 anything from a warning, to suspension for up to ten days, to expulsion from school, depending on the severity of the offense. For a second offense, the school may take action to expel the student from school.? (1. "This policy has been developed to ensure that the educational opportunities of all students. . .are not threatened or limited by such harassment." The Policy de?ned prohibited conduct as conduct related to a person's sex (gender), when such conduct was unwelcome by the recipient, including, but not limited to: a. ?Name calling, teasing, jokes, rumors or other derogatory or dehumanizing remarks; b. ?Unwelcome touching of a person or clothing; c. ?Any words or actions that provoke feelings of discomfort, embarrassment, or hurt.? "Sexual Harassment/Gender Harassment" is defined as unwelcome sexual advances, requests for sexual favors, sexuality motivated physical contact or other verbal or physical conduct or communication of a sexual nature when, among other instances: a. ?that conduct or communication has the purpose or effect of substantially or unreasonably interfering with an individual's education or employment, or creating an intimidating, hostile or offensive educational or work environment; b. ?that conduct adversely affects an individual's academic or employment opportunities.? The Policy de?ned "sexual harassment" as conduct including, but not limited to: a. ?unwelcome verbal harassment or abuse; b. ?unwelcome pressure for sexual activity; 32. g. Case 1:17-cv-11599 Document 1 Filed 08/25/17 Page 8 of 24 ?unwelcome sexually motivated or inappropriate touching, patting, pinching, or other sexual contact other than reasonable and necessary restraints of students by teachers, administrators, or other school personnel to avoid physical harm to persons or property; ?unwelcome sexual behavior or words, including demands for, sexual factors, accompanied by implied or overt threats concerning an individual?s educational or employment status; ?unwelcome behavior or words directed at an individual because of gender; ?sexual epithets, jokes, written or oral reference to sexual conduct, gossip about one?s sex life, comment on an individual?s body, comment about an individual?s sexual activity, de?ciencies, or prowess; ?discussion of one?s sexual activities.? Under the heading, "Responsibilities," the Policy required that a. ?Principals are responsible to ensure that this policy is conspicuously posted in appropriate student/employee work areas and that it is printed in each school's handbook. The posting shall include the name, mailing address, and telephone number of each school's harassment contact, as well as the name, address, and telephone number of the District Human Resource Of?cer. ?The NPSD is responsible for the dissemination of this policy and training. The School District will ensure that: (1) will develop a method of discussing this policy with students and employees, (2) will provide apprOpriate training to administrators and others who are assigned the responsibility to implement the procedures of this policy, (3) will see that this policy is reviewed at least annually 33. 34. 35. 36. 38. 39. Case 1:17-cv-11599 Document 1 Filed 08/25/17 Page 9 of 24 for compliance with state and federal law." C. Background Facts Related To Plaintiff Jane Roe Jane Roe enrolled at NHS as a sophomore during the fall semester of 2013?2014. On Sunday, November 10, 2013, Jane Roe, a minor, was invited to sleep over at her friend?s home. She arrived at her friend's home in the evening of November 10, 2013. Jane Roe's friend's brother, John Doe I, and his friend, John Doe 2, were also at the house. Both John Doe I and John Doe 2 were also students at NHS, at all times relevant. At approximately 11:00pm, John Doe I and John Doe 2 snuck out of the house to buy marijuana. They returned and asked if Jane Roe and her friend wanted to smoke the marijuana. John Doe 1 said he was not going to smoke so he could take care of everybody. John Doe and John Doe 2 gave Jane Roe and her friend a pipe with marijuana in it, and the girls started to smoke it. Jane Roe told everyone that she had never smoked marijuana before. She attempted to stop smoking after only a few times, but John Doe I kept insisting that she smoke more so she would ?feel it.? John Doe I then sexually assaulted Roe. A short time after John Doe 1 ?nished sexually assaulting Roe, John Doe 2 entered the room. He then grabbed Roe, and began sexually assaulting her as well. The next day, Jane Roe went to school and asked to meet with the school She was sent to the nurse who asked Roe to come back later that day as "everyone was busy?. Roe insisted that she talk with the school that day, explaining that it was very important. The nurse then referred her to Mike Nesson, a guidance counselor, who after resisting at ?rst, relented and agreed to meet with Roe later that day. Roe went 40. Case 1:17-cv-11599 Document 1 Filed 08/25/17 Page 10 of 24 to Nesson's of?ce at the beginning of sixth period for their agreed to meeting, and Nesson turned Roe away. Roe then attempted to meet with Wanda Visnick, the school nurse, at the beginning of her seventh period class, but Visnick also turned her away saying again that "everyone is busy." Finally, Roe went to Nesson?s of?ce after school. Nesson again turned her away, and told her to "come back tomorrow. However, Roe insisted that they meet and she waited in his of?ce until he was able to meet. During the meeting, it was very dif?cult for Roe to report that she was raped. Nesson constantly rushed her and told her that he was too busy, and that she needed to come back tomorrow. Eventually, Roe was able to report that she was with John Doe I and John Doe 2 over the prior weekend, that they all smoked marijuana, and "something really bad happened.? Nesson called Roe's father, who came to the meeting. In front of her father and Nesson, Roe reported that she believed that John Doe and John Doe 2 forced her to smoke to the point of virtual incapacitation, and that "something really had happened." Nesson informed Roe and her father that he had to report this information to the Department of Children Families and to the school principal. The next day, Roe, her mother and her father met with Nesson, Parent and Testa. Roe's mom informed the NHS administrators that the "something really bad" that happened was that Roe was raped by John Doe I and sexually assaulted by John Doe 2. Immediately upon hearing this report, Testa threw his hands in the air, and swivelled his chair away from the table in frustration. He then swivelled back to the table, and said "You didn't have to tell us that, you know." The meeting continued, and concluded with the understanding that they would continue to discuss a safety plan for Roe, and establish a safe space at school where she could go if she felt fear or stress stemming from her rape. 41. 42. 43. 44. Case 1:17-cv-11599 Document 1 Filed 08/25/17 Page 11 of 24 At no time during this initial meeting were Roe, or her parents informed about their rights under Title IX. Nor were they informed that the school would conduct an investigation in response to Roe?s report that she was raped and sexually assaulted by two other NHS students. Over the course of the next week, Roe's mother continued to communicate with Mr. Parent and informed him that Roe is afraid to attend school, knowing that John Doe and John Doe 2 were allowed to remain, unrestricted, on campus. Mr. Parent suggested that Roe seek a civil restraining order. At no time during these conversations did Mr. Parent suggest any measures the school could or would take to ensure Roe's safety on campus. Nor did he indicate that the school would take any action to investigate Roe's report. On November 20, 2013, Roe's mother called Mr. Testa to inform him that Roe had filed a police report and given a full interview to the police. Testa asked why the school would need to know that information. Roe?s mother responded that it may create more dangerous and stressful circumstances for Roe on campus because John Doe and John Doc 2 would soon learn of the police report. She also reported that on one of the days that Roe did attend school after reporting, John Doe smirked at Roe in a menacing way. She informed Testa that Roe was afraid to attend school and that they were contemplating seeking an order of protection pursuant to G.L. ch. 258E Order"). Testa responded that a 258E Order was more suited for a circumstance in which a student was bullying. another student. Roe's mother then said that the statute was actually created for rape and stalking victims. At this point, Testa became agitated and said, "I?m telling you the school can't enforce it. We aren't allowed to enforce it." Roe?s mother continued to explain to Testa additional circumstances surrounding the rape 45. 46. 47. 48. Case 1:17-cv-11599 Document 1 Filed 08/25/17 Page 12 of 24 of her daughter. Testa responded that Roe's mother kept telling him things he didn't know, that Roe says it was rape, but he was sure John Doe 1 and John Doe 2 would say something else, that the incidents didn't happen on campus, and that the assailants had rights. At no time during this phone call did Testa offer any measures NHS would take to ensure Roe's protection on campus, nor did he indicate that NHS would take any steps whatsoever to investigate Roe's report that she was raped. Around November 22, 2013, John Doe 1 and John Doe 2 were informed of Roe's police report, and they both immediately retained attorneys. The Police also issued a no?contact order to John Doe 1, John Doe 2 and Roe?s friend, ordering them to stay away from Roe and that a failure to do so could constitute witness intimidation. Mr. Parent acknowledged to Roe and her family that he was aware of the Police No-Contact Order and that it was communicated to the three other students during school hours. On or about November 25, 2013, John Doe 1 again made contact with Roe and smirked and laughed at her. He continued to stare at Roe for several seconds until she became too fearful to continue on her path, and turned and walked away from him. Roe and her father both immediately reported this incident to Mr. Testa and Mr. Parent. Parent and Testa did nothing in response to this report of additional harassment by John Doe 1. Also on November 25, 2013, Roe and herparents met with Parent, Testa, and Nesson to discuss a safety plan for Roe. The three administrators ?rst proposed that Roe attend "Newburyport Academy," which was essentially a room in NHS that Roe could go to do her work by herself. The Roe's sat aghast as the administrators suggested that Roe be 49. 50. 51. 52. Case 1:17-cv-11599 Document 1 Filed 08/25/17 Page 13 of 24 taken out of her classes, and away from her peers, because she was afraid of seeing her rapists on campus. Testa, annoyed at the Roe's reaction, said something to the effect of, "it's not a behavioral thing. Roe would be free to go to class if she wanted. It would just be if she didn't want to see them, she could get her work and go to that room." Roe rejected this plan, explaining that she got good grades, liked her teachers, liked class discussions, and wanted to be with her peers. In response, Testa threw his hands in the air and said "We aren?t stopping you from doing that." D. Parent intervened to stop Testa. Roe then described her usual routes to class, and Parent said he would draw up a plan that ensured John Doe 1 and John Doe 2 would not be present on her routes to and from class. Roe?s mother then asked if the NPSD's superintendent was aware of Roe's report, and pending criminal investigation. In response, Testa said "Hey, the only gossip we have heard so far is coming from your side." Roe's mother explained that she was concerned because Roe was missing lots of class due to her fear of encountering her assailants, and on the days she did attend school, she was often harassed by John Doe 1, which caused her to become sick, and leave early. Roe's mother informed the school administrators that they may seek a restraining order, and that there may be Title IX considerations. Testa then responded, "What does Title IX have to do with this?" On November 29, 2013, Roe and her family met with an Assistant District Attorney regarding her criminal case. The ADA suggested that Roe get a 25 813 Order to protect herself from ongoing harassment. Roe's mother told the ADA that Testa had told her that the school was not allowed to enforce a 258E Order. The ADA informed Roe and her family that the school can enforce a 25 813 Order, they apparently just didn't want 53. 54. 55. 56. 57. 58. Case 1:17-cv-11599 Document 1 Filed 08/25/17 Page 14 of 24 to. On December 2, 2013, Roe obtained an EX Parte Harassment Prevention Order 258E from Essex County Judge Jose Sanchez. At that time, a hearing was set for December 10, 2013 to determine whether there was enough evidence to support a permanent 258E Order. Over the next week, John Doe 1 continued to harass Roe in school by purposely remaining at his locker for longer than usual in order to encounter Roe, and stare at her menacingly. He also continued to harass Roe outside of school, when the two encountered each other in town. On December 9, 2013, Roe and John Doe 1 were both in the lunch room. As Roe was walking to her lunch table, John Doe I came within approximately ten feet of Roe, and stared at her. He continued to approach Roe until he was within two feet of her. Roe said to Doe 1, "Are you fucking kidding me." John Doe 1, then turned away and started laughing. So upset at the incident, Roe ran out of the lunch room to the nurse's of?ce and began vomiting. Later that day, Roe's father called Parent to report the incident, and that he believed John Doe 1 was purposely pushing the boundaries set by the 258E Order in order to scare and intimidate Roe. Parent responded that he was trying to ?gure out how to move lunch schedules around for the school. On December 10, 2013, Judge Sanchez issued aperrnanent 258E Order, requiring John Doc 1 to not come Within ?fteen feet of Roe. At the 258E Order hearing, Testa was called as a witness by John Doe 1, and testi?ed that he felt "sorry" for John Doe I having to comply with the temporary 258E Order 59. 60. 61. 62. Case 1:17-cv-11599 Document 1 Filed 08/25/17 Page 15 of 24 during a school assembly, that he had no knowledge of John Doe I not complying with the temporary 258E Order, and that the 258E Order was interfering with John Doe 1's education. Testa also asked Judge Sanchez that there be no distance requirement in any order going forward, as the temporary 258E Order was causing logistical problems for Testa and NHS. On December 11, 2013, Roe's father met with Parent and provided him a letter reminding Parent that any information about Roe, and any of her school records, were prohibited from being distributed to third parties, without Roe?s consent or a lawfully issued subpoena. Roe?s father was concerned that at the hearing, John Doe 1's defense counsel raised the contents of a conversation between only Testa and Roe, and which could not have been known by John Doe 1. Parent also mentioned that Testa was subpoenaed to appear at the hearing. Roe's father asked Parent why they answered the subpoena without even notifying Roe or her family that it had been issued. Parent had no response to Roe's father's question. Roe's father informed Parent that Roe was extremely uncomfortable with Testa because he had betrayed her privacy at the hearing, and had listened to her recount the intimate details of her rape. That same day, John Doe 1 again approached Roe in the school lunch room. He moved to within two feet of Roe, causing Roe to ?ee the lunch room and go to the nurse's of?ce. She reported feeling nauseous and doesn't eat her lunch. Later that day, Roe reported the lunch room incident to Parent. Roe reported that these incidents make her fearful, jumpy and sick to her stomach. Parent responded that the school was trying to ?gure out a way to get her a different lunch period. 64. 65. 66. 67. Case 1:17-cv-11599 Document 1 Filed 08/25/17 Page 16 of 24 On December 13, 2013, Roe was walking in a school hallway. John Doe 1 pulled up a chair and sat in the hallway. Roe moved to the opposite side of the hallway, pulled out her cell phone, and pretended to text in order to give John Doe 1 time to move. He did not, and Roe took two pictures of John Doe 1 to document that he was in the hallway at a time he should not have been. Roe called her father who instructed her to go wait in the main of?ce. While there, Roe saw Testa who asked if something was wrong. Roe recounted the incident to Testa who then went into his of?ce. Two Newburyport Police of?cers arrived at the of?ce. Roe and her father were then invited in to Testa?s of?ce, along with the two of?cers and Mr. Parent. Testa asked Roe what happened, and Roe responded that she did not feel comfortable talking to anyone but her father and the police of?cers. Annoyed, Testa then asked Roe if she had taken pictures of John Doe I, and reprimanded her for doing so as it was against school rules. In order to move on to the actual salient issue, Roe's father suggested that the school punish Roe accordingly, to which Mr. Parent said that it was not a serious enough infraction to warrant a punishment. Testa repeatedly asked Roe, "What did John Doe 1 do to you?" And also remarked several times that "This is not a violation, it's just incidental contact." Roe eventually was able to talk to the police and her father alone. The police informed Roe that the school was required to enforce the 25 8E Order and that Testa had informed them that the incident was simply "incidental contact." Roe left the room, and Parent informed her father that John Doe 1 had selected another female student to escort him around campus and serve as a "witness" and it was this witness that brought John Doe I to the hallway. Roe's father was incredulous, and 68. 69. 70. 71. 72. Case 1:17-cv-11599 Document 1 Filed 08/25/17 Page 17 of 24 explained that this was no excuse for John Doe 1 to be in the hallway. Roe then returned to the of?ce, and the group started discussing a set of preferred routes for Roe to take to avoid John Doe I. Testa then said, "See, if you hadn't gotten the 25 8E Order, I could've mapped out in an hour which way Roe should go and which way John Doe 1 should go and they would never meet. But with this court order, I can't tell Roe where to go and I?m not allowed to enforce it anyways.? Parent then explained to Roe, John Doe 1's plan to have a "witness" escort him around campus, and that the reason he was in the hallway that day was because the witness brought him there. Roe stood up and said "this makes me feel signi?cantly less safe," and then left the of?ce. Roe ended up walking a mile to her home with no coat in below freezing temperature. On December 15, 2013, the Roe's wrote a letter to Parent, recounting the events of the meeting, and insisting that the school enforce the 258E Order. On December 16, 2013, John Doe 1 again approached Roe in the lunchroom. Roe yelled at him to get away, and he began laughing. Roe ran away into the nurse's of?ce, reported that she was nauseous and did not eat her lunch. That day, Roe?s father called Parent to report this incident and inform Parent that Roe would be dropping out of the school theater program because she was afraid that it let out at night. On December 18, 2013, Roe's mother met with Parent and informed him that her . daughter was reallydeteriorating as a result of the constant harassment by John Doe 1. Parent responded that "we are doing everything we can. Roe's mother asked why there were no longer staggered schedules for Roe and John Doe 1, a measure that had previously been implemented, and Parent responded that it "singles Roe out." He then 74. 75. 76. 77. 78. Case 1:17-cv-11599 Document 1 Filed 08/25/17 Page 18 of 24 said "What if it gets around why John Doe 1 has these restrictions?? and can't stop people from talking." On December 20, 2013, John Doe 1 again harassed Roe in the lunch room. Again, Roe went to the nurse's of?ce feeling nauseous and did not eat her lunch. On January 10, 2014, after the winter vacation, John Doe 1 again approached Roe in the lunch room and got to within inches of her. She again left and went to the nurse's of?ce feeling nauseous and did not eat her lunch. On January 13, 2014, Roe's father called Testa to discuss the constant harassment his daughter was experiencing. At one point, Testa said to Roe's father, "This is not a school issue. Tell her that if she has a problem, she should call the police." Roe's father insisted that Testa enforce the 258E Order. Testa responded that he would tell John Doe 1 to be more aware of his surroundings. On January 17, 2014, Roe again rep01ted to Parent that John Doe 1 had come within 15 feet of her and glared menacineg at her. Mr. Parent responded that he believed this would be a violation of the 25813 Order, but that he could not do anything about it, and she needed to report it to the police. On January 30, 2014, the Roes met with NPSD Superintendent Viccaro to report what had happened, and to report their dissatisfaction with response to Roe's report. Viccaro listened to the Roe's complaints and indicated she would be in touch soon. On February 5,2014, the Roes met with Viccaro, Trisha Blackstock, a school counselor, and Barbara Dee, Director of Student Services. Viccaro informed the Roes that they had implemented a new plan to address the ongoing harassment. The Roes asked if any of their prior complaints have been investigated, to which Viccaro responded that she 79. 80. 81. Case 1:17-cv-11599 Document 1 Filed 08/25/17 Page 19 of 24 believed one incident had been investigated but was not sure. She also informed the Roes that Parent said that the reason some of the complaints had not been investigated was because Roe was unavailable, or that her parents reported the incidents instead of Roe herself. Roe immediately refuted this, saying that she personally reported every incident and had always been available. Roe returned to school the next day, and learned that she was placed in class with John Doc 2. Additionally, John Doe 1's teacher did not hold him after class for the allotted time necessary for Roe to pass his classroom pursuant to the new plan, and John Doc 1 exited his classroom, approached Roe in the hallway, and stood within inches of her while her stared at her. After being approached by John Doe 1, who remained within a foot beside Roe for a prolonged period, Roe yelled a profanity at John Doe 1. The Roes reported the incident to Viccaro, to which she responded that Roe had yelled a profanity at John Doc 1, causing a disruption at school. She also informed the Roes that Testa had been tasked with implementing the new plan. Exasperated and frustrated by the entire process, the Roes hired an attorney specializing in school safety. This attorney met with Parent and Viccaro on March 7, 2014 to discuss a new safety plan for Roe. Over the next several months, the district's attorneys negotiated with the Roes' attorney to come to an agreeable safety plan. Meanwhile, the Roes had decided that it was in Roe's best interest to transfer to another school. The Roes contacted several other public high schools in other districts near the area, but were informed that Roe could not transfer because no public high schools were accepting out of district students at that time. Roe?s mother contacted the superintendent to seek her assistance, but the superintendent never responded. 82. 83. 84. 85. 86. 87. 88. 89. 90. Case 1:17-cv-11599 Document 1 Filed 08/25/17 Page 20 of 24 Ultimately, Roe was forced to transfer to a private school, an hour away from her home. Plaintiff is informed, believes, and on that basis alleges, that John Doe I engaged in sexually inappropriate behavior with at least two other female NHS students. Though these incidents were widely known to the NHS student community, Defendants did not commence any investigation, nor take any measures to protect the victims and other female students from John Doc 1. Defendant NPSD's actions and inactions in response to Roe's report of sexual assault violated several of its own policies. Defendant NPSD's actions and inactions in response to Roe's report of sexual assault violated the DCL and other guidelines promulgated by the DOE. CLAIMS FOR RELIEF FIRST CAUSE OF ACTION DISCRIMINATION ON THE BASIS OF GENDER IN VIOLATION OF 20 U.S.C. 1681 (TITLE IX - AGAINST DEFENDANT NPSD) Plaintiff incorporates all paragraphs of this Complaint is if fully set forth herein. Defendant City of Newburyport, through NPSD, is the recipient of federal financial assistance. The sexual assaults experienced by Jane Roe were severe, pervasive and objectively Offensive. NPSD had actual knowledge of the sexual assaults committed by John Doe I and John Doe 2, against ane Roe while all were students at NHS. acts and failures to act in response to such knowledge amounted to deliberate indifference. By acting clearly unreasonably to Jane Roe's known sexual assaults and 91. 92. 94. 95. 96. Case 1:17-cv-11599 Document 1 Filed 08/25/17 Page 21 of 24 subsequent harassment by John Doe I and his friends, NPSD created and exacerbated a sexually hostile environment for Jane Roe on campus, thereby discriminating against her on the basis of gender. NPSD's failure to adhere to its own policies in response to Jane Roe's report that she was sexually assaulted multiple times by John Doe 1 and John Doe 2 amounted to deliberate indifference. failure to adhere to the DCL guidelines in reSponse to Jane Roe's report that she was sexually assaulted multiple times by John Doe I and John Doe 2 also amounted to deliberate indifference. As a result of deliberate indifference to Jane Roe?s report of sexual assault, Plaintiff was subject to continuing harassment by John Doe 1 and his friends, and she suffered a loss of educational opportunity and/or bene?t. Additionally, and/or in the alternative, NPSD failed to enact and/or disseminate and/or implement proper or adequate procedures to discover, prohibit or remedy the kind of gender based discrimination that Plaintiff suffered. This failure included, without limitation, non?existent or inadequate customs, policies or procedures for the recognition, reporting, investigation and correction of unlawful gender based discrimination, and/or the failure to adhere to their own policies. Those failures amounted to deliberate indifference toward the unlawful sexual conduct and retaliatory conduct that .had occurred, was occurring, or was likely to occur. As a result, Plaintiff was subject to continuing harassment and a loss of educational opportunity. As a result of deliberate indifference, Plaintiff was forced to endure a sexually Case 1:17-cv-11599 Document 1 Filed 08/25/17 Page 22 of 24 hostile environment on campus and Plaintiff suffered loss of educational opportunities and/or bene?ts. Plaintiff has incurred, and will continue to incur, attorney's fees and costs of litigation. SECOND CAUSE OF ACTION 42 U.S.C. 1983 - VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION 97. Plaintiff incorporates all paragraphs of this Complaint as if fully set forth herein. 98. At all times relevant herein, Defendants Parent, Testa and Viccaro acted under color of law, under color of their authority as agents of Defendant City of Newburyport, and within the scope of their employment with the NP SD. 99. Defendants Parent, Testa and Viccaro, with deliberate indifference, failed to train its employees as to the rights of persons with whom they would come into contact, including but not limited to Plaintiff. 100. Defendants Parent, Testa and Viccaro's deliberate indifference, and will?il and wanton behavior, created a danger of and increased the risk of harm to Plaintiff by sexual abuse and or harassment. 101. Defendants Parent, Testa and Viccaro 's conduct was intentional, and motivated by gender. 102. Defendants Parent, Testa and Viccaro violated Plaintiffs civil rights by having an express policy that, when enforced, caused a constitutional deprivation to Plaintiff, or by having a widespread practice and/0r custom that, although not authorized by written law or express municipal policy, was so permanent and well settled as to constitute a custom or usage with the force of law. 103. 104. 105. 106. 107. 108. 109. 110. 111. Case 1:17-cv-11599 Document 1 Filed 08/25/17 Page 23 of 24 The constitutional injury in?icted by Defendants Parent, Testa and Viccaro was caused by a person with final policymaking authority at the NPSD. Defendants Parent, Testa and Viccaro knew about the above-described conduct and facilitated it, approved it, condoned it, and/or turned a blind to the conduct. The above?described conduct of Defendants Parent, Testa and Viccaro constitutes a violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. Plaintiff is entitled to compensatory damages for physical injury, emotional pain, suffering, mental anguish and other non-pecuniary losses. THIRD CAUSE OF ACTION Massachusetts CL. C. 258 Plaintiff incorporates all paragraphs of this Complaint as if fully set forth herein. Defendant City of Newburyport is a public employer Within the definition set forth in G.L. c. 258, Defendant City of Newburyport, as a public employer, is responsible for the negligent acts and omissions of public employees which are committed or omitted by them while acting within the scope of their employment. Defendants Parent, Testa and Viccaro, in the performance of their duties on behalf of the Defendant City of Newburyport, had af?rmative duties to the plaintiff, both under Federal Law, and those duties voluntarily assumed by Defendant City of Newburyport, and NP SD. Defendants Parent, Testa and Viccaro negligently violated those duties to the plaintiff, Defendants Parent, Testa and Viccaro also negligently in?icted emotional distress upon her. 112. 114. 115. Case 1:17-cv-11599 Document 1 Filed 08/25/17 Page 24 of 24 The negligent acts and omissions alleged herein were all committed by Defendants Parent, Testa and Viccaro as public employees acting within the scope of their employment. Plaintiff was not required to present a notice letter to the defendant City of Newburyport under the provisions of G.L. c. 258, because her claim comes within the exception set forth in said as amended by the Acts of 2014, c. 145, 1, 2. The plaintiff has complied with all of the conditions precedent to the commencement of this action. As a result of the negligent conduct of the public employees of defendant City of Newburyport, plaintiff has been seriously and permanently injured, and continues to suffer at present from emotional distress, which impairs her ability to function, and affects all aspects of her life. IV. RELIEF REQUESTED WHEREFORE, plaintiff demands judgment against the defendants, on each Claim, in an amount to be determined by a jury, as compensatory damages, and as punitive or exemplary damages where appropriate, plus costs, interest, and attorney's fees. Sara Elizabeth Burns SARA ELIZABETH BURNS, ESQUIRE BBO 6921.15 . Law Of?ce of Sara Elizabeth Burns 175 Federal Street, Suite 1425 Boston, MA 02110-2287 (617) 767?27 1 sara@seburnslaw. com PLAINTIFF DEMANDS A TRIAL BY JURY ON ALL CLAIMS By her Attorneys, Carmen L. Durso CARMEN L. DURSO, ESQUIRE BBQ 139340 Law Of?ce of Carmen L. Durso 175 Federal Street, Suite 1425 Boston, MA 02110-2287 (617) 728?9 123 carmen@dursolaw. com Case 1:17-cv-11599 Document 1-1 Filed 08/25/17 Page 1 of 1 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS 1. Title of case (name of first party on each side only) R09 V- City Of 2. Category in which the case belongs based upon the numbered nature of suit code listed on the civil cover sheet. (See local rule I. 410, 441, 470, 535, 830*, 835*, 891, 893, 895, R.23, REGARDLESS OF NATURE OF SUIT. II. 110, 130, 140, 160, 190, 196, 230, 240, 290,320,362, 370, 371, 380, 430, 440, 442, 443, 445, 446, 448, 710, 720, 740, 790, 820*, 840*, 850, 870, 871. 120, 150, 151, 152, 153, 195, 210, 220, 245, 310, 315, 330, 340, 345, 350, 355, 360, 365, 367, 368, 375, 376, 385, 400, 422, 423, 450, 460, 462, 463, 465, 480, 490, 510, 530, 540, 550, 555, 625, 690, 751, 791, 861 -865, 890, 896, 899, 950. *Also compiete A0 120 or A0 121. for patent, trademark or copyright cases. 3. Title and number, if any, of related cases. (See locai rule If more than one prior related case has been filed in this district please indicate the title and number of the first fiied case in this court. 4. Has a prior action between the same parties and based on the same claim ever been file in this court? YES NO 5. Does the complaint in this case question the constitutionality of an act of congress affecting the public interest? (See 28 USC ?2403the U.S.A. or an officer, agent or employee of the U.S. a party? 6. Is this case required to be heard and determined by a district court of three judges oursuant to title 28 USC ?2284? YES NO 7. Do of the parties in this action, excluding governmental agencies of the United States and the Commonwealth of Massachusetts (?governmental agencies?), residing in Massachusetts reside in the?e division? - See Local Rule YES NO A. If yes, in which divis?on doa_ll of the non?governmental arties reside? Eastern Division Central Division El Western Division El B. if no, in which division do the majority of the plaintiffs or the oniy parties, excluding governmental agencies, residing in Massachusetts reside? Eastern Division Central Division Western Division 8. If filing a Notice of Removal - are there any motions pending in the state court requiring the attention of this Court? (If yes, submit a separate sheet identifying the motions) - - YES N0 (PLEASE TYPE OR PRINT) NAME Carmen L. Durso ADDRESS 175 Federal Street, Suite 1425, Boston, MA 02110?2287 TELEPHONE no. 517-728-9123 (CategoryForm6-2017.wpd IS 44 (Rev. 06/17) Case Page 1 of 1 The .iS 44 civil cover sheet and the information contained herein neither replace nor supplement the ?lling and service of pleadings or other papers as required by law, except as provrded by local. rules ofcourt. This form, approved by the Judrcral Conference of the United States In September 1974, IS required for the use of the Clerk of Court for the purpose of the docket sheet. (SEE INSTRUCTIONS ON OF THIS FORM.) I. PLAINTIFFS Jane Roe County of Residence of First Listed Plaintiff Essex CI Michael Parent, Michael Taste, and Susan L. Viccaro County of Residence of First Listed Defendant Essex US. PLAINTIFF CASES) (C) Attorneys (Firm Norrie, Address, and Telephone Number) Carmen L. Durso, Esq., Law Of?ce of Carmen L. Durso 175 Federal Street, Suite 1425, Boston, MA 02110-2287 617?728?9123 (IN U.S. PLAINUFFCASES ONLY) IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED. NOTE: Attorneys (If Known) II. 0F (Place an ?X"in One Box Orr/)9 II I. CIT OF PARTIES (Place an in One Boxfor Plainer (For Diversify Cases 0;in and One Boxfor Defendant) 1 US. Government 5 3 Federal Question PTF DEF PTF DEF Plaintiff (U.S. Government Not a Party) Citizen of This State Cl 1 Cl 1 Incorporated Principal Place 4 4 of Business In This State Cl 2 US. Government CI 4 Diversity Citizen of Another State Cl 2 Cl 2 Incorporated and Principal Place Cl 5 CI 5 Defendant (Indicate itizenship of Parties in Item 111) of Business In Another State Citizen or Subject ofa I3 3 Cl 3 Foreign Nation Cl 6 Cl 6 Foreign Countrv IV. NATURE OF SUIT (Place an in One Box Only) Click here for: Nature of Suit Code Descriptions. I CONTRACT FORFEITUREIPENALTY BANKRUPTCY OTHER STATUTES Cl 110 Insurance PERSONAL INJURY PERSONAL INJURY Cl 625 Drug Related Seizure E3 422 Appeal 28 USC 158 375 False Claims Act Cl 120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 CI 423 Withdrawal 130 Miller Act El 315 Airplane Product Product Liability CI 690 Other 28 USC 157 3729(3)) Cl 140 Negotiable Instrument Liability 367 Health Care! I3 400 State Reapportionment CI 150 Recovery of Overpayment 320 Assauit, Libel Pharmaceutical PROPERTY RIGHTS [3 410 Antitrust Enforcement of Judgment Slander Personal Injury 13 820 Copyrights El 430 Banks and Banking Cl 15} Medicare Act Cl 330 Federal Empioyers? Product Liability Cl 830 Patent I3 450 Commerce 152 Recovery of Defaulted Liability Cl 368 Asbestos Personal El 835 Patent - Abbreviated El 460 Deportation Student Loans El 340 Marine Injury Product New Drug Appiication Cl 470 Racketeer [nfluenced and (Excludes Veterans) Cl 345 Marine Product Liability 840 Trademark Corrupt Organizations [3 153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR SOCIAL SECURITY El 480 Consumer Credit of Veteran?s Bene?ts 350 Motor Vehicle [3 370 Other Fraud [3 710 Fair Labor Standards CI 861 HIA l395ff) Cl 490 Cable/Sat TV El 160 Stockholders? Suits Cl 355 Motor Vehicle Cl 371 Truth in Lending Act Cl 862 Black Lung (923) El 850 Securides/Commodities! E3 190 Other Contract Product Liability [3 380 Other Personal CI 720 Labor/Management Cl 863 (405(g)) Exchange 13 195 Contract Product Liability El 360 Other Personal Property Damage Relations Cl 864 SSID Title XVI Cl 890 Other Statutory Actions El 196 Franchise Injury 385 Property Damage Cl 740 Railway Labor Act Cl 865 RSI (405(g)) Cl 891 Agricultural Acts Cl 36?. Personal Injury - Product Liability [3 751 Family and Medical Cl 893 Environmental Matters Medical Malpractice Leave Act 895 Freedom of information 1 REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS El 790 Other Labor Litigation FEDERAL TAX SUITS Act El 210 Land Condemnation Ci 440 Other Civil Rights Habeas Corpus: Cl 79% Employee Retirement 13 870 Taxes (US. Plaintiff El 896 Arbitration El 220 Foreclosure 13 441 Voting El 463 Alien Detainee Income Security Act or Defendant) E1 899 Administrative Procedure El 230 Rent Lease Ejectment Cl 442 Employment Cl 510 Motions to Vacate Cl 87% IRS?Third Party Act/Review or Appeal of CE 240 Torts to Land C1 443 Housing/ Sentence 26 USC 7609 Agency Decision 13 245 Tort Product Liability Accommodations Cl 530 General El 950 Constitutionality of CI 290 All Other Real Property Cl 445 Ameri w/Disabilities - CI 535 Death Penalty State Statutes Employment Other: 462 Naturalization Application CI 446 Amer. w/Disabilities - Cl 540 Mandamus Other 465 Other Immigration Other 550 Civil Rights Actions OI 448 Education El 555 Prison Condition Cl 560 Civil Detainee - Conditions of Con?nement V. ORIGIN (Place an in One Box Only) XI VI. CAUSE OF ACTION VII. REQUESTED IN Original Proceeding [3 2 Removed from State Court 13 3 Remanded from Appellate Court El CHECK IF THIS IS A CLASS ACTION El 4 Reinstated or Cl 6 Multidistrict Litigation - Transfer Cl 8 Multidistrict Litigation Direct File 13 5 Transferred from Another District (Wm/y) Reopened Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): 20 U.S.C. 1681 (Title 42 U.S.C. 1983 Brief description of cause: Case arises out of the response of public school of?cials to the sexual assault and harassment of a student. DEMAND 5 CHECK YES only if demanded in complaint: COMPLAINT: UNDER RULE 23, JURY DEMAND: Yes [We RELATED 1F (See instructions): DOCKET NUMBER DATE SIGNAA IRE OF ATTORNEY RE . 08/25/2017 FOR OFFICE USE ONLY RECEIPT AMOUNT JUDGE MAG. JUDGE