G. v. The Fay School , 931 F.3d 1 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1602
G., a 12-year-old minor suing by a fictitious name for privacy
reasons; MOTHER and FATHER, suing under fictitious names to
protect the identity and privacy of G., their minor child,
Plaintiffs, Appellants,
v.
THE FAY SCHOOL, by and through its board of trustees;
ROBERT GUSTAVSON,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Timothy S. Hillman, U.S. District Judge]
Before
Howard, Chief Judge,
Lynch and Lipez, Circuit Judges.
John J.E. Markham, II, with whom Markham & Read was on brief,
for appellants.
Sarah Goldsmith Schwartz, with whom Anthony L. DeProspo, Jr.
and Schwartz Hannum PC were on brief, for appellees.
July 17, 2019
LIPEZ, Circuit Judge. Appellant "G," a 12-year-old
minor, and G's parents appeal from the entry of summary judgment
for the Fay School, Inc., and Fay's Head of School, Robert
Gustavson.1 G, formerly a student of the Fay School, allegedly
suffers from Electromagnetic Hypersensitivity ("EHS"), a
sensitivity to electromagnetic fields ("EMFs"). The family
brought suit against Fay after the school refused to remove
wireless internet from its classrooms to accommodate G's
condition. In the only claims remaining on appeal, the family
alleges unlawful retaliation for demands for an accommodation for
G's condition in violation of Title V of the Americans with
Disabilities Act ("ADA"), 42 U.S.C. § 12203(a), breach of contract,
and misrepresentation.
We affirm the district court's rejection of these
claims, concluding (1) as an issue of first impression for our
court, that damages (compensatory and nominal) are not an available
remedy for a Title V retaliation claim premised upon an exercise
of rights under Title III of the ADA; and (2) that the family has
failed to raise triable issues of fact as to the contract and
misrepresentation claims.
1
G sues under a fictitious name to protect his privacy as a
minor. G and his parents are, hereinafter, collectively referred
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I.
We recite the facts in the light most favorable to the
G family, "the party resisting summary judgment." Tropigas de
Puerto Rico, Inc. v. Certain Underwriters at Lloyd's of London,
637 F.3d 53, 54 (1st Cir. 2011).
A. The Parties
The Fay School is an independent day and boarding school
in Southborough, Massachusetts. It enrolls children from pre-
kindergarten through the ninth grade, touting its ninth-grade year
as "a capstone" year that provides its graduates "new opportunities
for personal growth as . . . athletes, artists, and leaders." In
a yearly parent-student handbook, the Fay School outlines its "core
values," including "academic excellence," "earnest effort,"
"honorable conduct," "dedicated service," and "wellness of mind,
body and spirit." To enroll at the school, students and their
parents must sign an enrollment contract stating that they will
"agree to comply with the [s]chool's policies, rules and standards
. . . as stated in the [h]andbook." In this contract, parents and
students must also acknowledge that the handbook "does not
constitute a contract between [them] and the School." The G family
signed this enrollment contract.
to as "the G family" or "the family." The Fay School, Inc.
(hereinafter, "the Fay School" or "the school") and Fay's Head of
School, Robert Gustavson, are, hereinafter, collectively referred
to as "Fay."
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As the handbook advises, technology is "an integral part
of the academic and residential programs" at the school.
Classrooms are equipped with "projectors, video displays, [and]
Apple TV."2 In or around 2009, the school installed wireless
internet ("Wi-Fi"), with access points throughout its campus, to
"allow[] [for] increased mobility and flexibility within the
classrooms" not possible with hardwired devices. The Wi-Fi is
frequently accessed by students and teachers at the school. Most
upper-level teachers use "Google Docs," an internet-based program,
as part of classroom instruction. Tablet computers are provided
by the school to younger students for in-classroom use, and the
school requires that all seventh-, eighth-, and ninth-grade
students bring their own laptops or tablets to school
for computer-based tasks. The students use these devices to
access the Fay School's Wi-Fi.
G was a student at the Fay School between 2009 and 2015.
He allegedly suffers from EHS, and claims, as a result, to
experience "headaches, nausea, nose bleeds, dizziness and heart
palpitations" when exposed "for long periods of time . . . to radio
2
Apple TV is a digital media player that can receive digital
data, such as music or video, from a specific source (like an
iTunes library on a computer) and stream it to a television or
other video display. See John-Michael Bond, Why Apple TV can't
compete in 2018, The Daily Dot (March 23, 2018),
https://www.dailydot.com/debug/what-is-apple-tv-cost/.
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wave radiation emitted from various types of electronic devices,
including Wi-Fi transmissions to and from computers."
B. Factual History
G entered the Fay School as a first-grader in 2009.
Several years after his enrollment, in the summer and fall of 2012,
the school upgraded its wireless internet system to operate at a
higher frequency band. In October of that year, G's mother
("Mother")3 began expressing concerns about the harmfulness of Wi-
Fi generally, stating in an email to the school that "there is a
direct link to illness and wi-fi radiation." In 2014, Mother again
expressed these concerns to various individuals at the school,
including in an email to the school nurse in which she stated that
she "ha[d] been working with several engineers and experts [on the
subject of EMF exposure]," had encountered "hundreds of studies
. . . concerning the safety of using Wi-Fi," and advised
"immediate proactive steps." She also wrote to the head of the
school's board of trustees ("the Board") concerning the dangers of
Wi-Fi exposure. She requested "immediate proactive steps" and
expressed her "confiden[ce] that [he] [would] give [the] topic the
attention it deserves." Mother did not mention G or his condition
in these communications.
3
G's parents sue under the fictitious names "Mother" and
"Father" to protect the identity and privacy of their minor son.
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Following Mother's communications, the Head of School,
Robert Gustavson, and other Fay School staff members exchanged a
series of emails regarding Mother's Wi-Fi concerns. Some of the
comments in those emails were dismissive or derisive:
 "It's inappropriate and presumptuous for a
parent to contact trustees and demand that a
topic be discussed at a Board meeting . . . .
[S]he should not be rewarded for going around
me [Gustavson]."
 "We are . . . in agreement that we should . . .
try to cut this off at the pass."
 "Seems to me that meeting with them [the
family] would open a can of worms."
 "Blahahahahahahahaha!" [in response to an
email with the subject line "Rabbit Ears and
Aluminum Foil]
 "Perhaps it is time to ignore her requests[.]"
On May 15, 2014, Gustavson met with Mother and Father to
discuss their Wi-Fi concerns. At the meeting, Mother requested
that the school replace its Wi-Fi with ethernet cords to connect
to the internet. Following the meeting, the school conducted
independent research on the Wi-Fi issue and concluded that evidence
of harm was insufficient to require mitigating efforts. On May
23, Gustavson informed Mother of the school's conclusions,
requested that all further communications concerning the issue be
directed to him, the school's Director of Operations, or the
school's Director of Information Technology, and asked that Mother
"refrain from contacting other Fay employees or trustees"
concerning the issue. Mother continued to email an array of Fay
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School staff members concerning the Wi-Fi issue and requested a
further meeting to discuss the topic. The Fay School declined her
request to meet.
Around this same time, Mother brought G to his primary
care provider complaining that her son suffered symptoms, such as
chest pressure and stomach pain, when in proximity to Wi-Fi. The
provider recorded the discussion but noted that, "at [that] time[,]
[he] [could not] support that [Wi-Fi] [was the] cause of . . .
[G's] stomach [and] chest issues." Subsequently, Mother sought
the advice of an EHS specialist, Dr. Jeanne Hubbuch, explaining
that G experienced "[h]eadache[s], dizziness, ringing ears, chest
pressure, [and] nausea" at school but that the symptoms
"dissipate[d] [at] home where [they] use Ethernet." After meeting
with Mother, but not G, Dr. Hubbuch "preliminarily" diagnosed G
with "EMF sensitivity" and subsequently advised the Fay School of
her diagnosis. The school requested further documentation of G's
diagnosis, which the family did not provide.
In September 2014, after Mother and Father continued to
contact members of the school community about the dangers of
wireless internet, Mother was removed from her role in the Fay
School's Parents Association. According to the Parents'
Association, Mother was removed because she had organized a
discussion on Wi-Fi safety with the Parents Independent School
Network ("PIN") and had "strongly le[d] [PIN] to believe" that Fay
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and the Parents Association "were aware and in support of this
event," even though they were not. The school also sent a letter
to Mother and Father setting forth the "terms upon which [the
family] [could] remain members of the Fay community." The letter
stated in part:
You have the opportunity and privilege, not the
right, to send your child to Fay School. As
parents, you do have the right to determine for
yourself whether the School's environment is
appropriate for your children. However, as
previously indicated, we will not engage in further
dialogue with you concerning Wi-Fi safety, and we
will not allow you to continue to disrupt our school
community.
On November 14, 2014, Mother and Father formally
asserted, through counsel, that G suffered from EHS and requested
that the school accommodate G by (1) providing an immediate meeting
with the school's nurse; (2) educating all staff on the dangers of
EMF exposure; (3) identifying and marking all EMF sources on
campus; (4) allowing G to access the school curriculum through an
ethernet cord; (5) engaging an independent third party to quantify
the EMF exposure at the school and share findings with parents;
(6) reducing the EMF emissions at school to "levels below those
known in scientific literature to create biologically
disregulating effects;" (7) "mandat[ing] that personal devices be
turned off;" and (8) not "ostraciz[ing] or isolat[ing] children in
any way while developing or instituting these accommodations." On
December 8, the school responded, explaining that it needed
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additional medical documentation "to fully evaluate [the family's]
requests." The letter stated that "[t]he documentation [the
family] [had] provided [was] insufficient [because] (1) it [did]
not specify the existence of a disability or explain the need for
any reasonable accommodation; and (2) the information d[id] not
specify any functional limitations due to any disability."
On February 3, 2015, Dr. Hubbuch examined G. Although
Dr. Hubbuch did not diagnose G with EHS, she noted that "if
something in school was [the] cause [of G's symptoms], [she would]
expect it to persist [the] entire day at school and it does not."
On February 25, Mother advised Dr. Hubbuch that G's symptoms had
worsened. She did not tell Dr. Hubbuch that, about two weeks
earlier, G had hit his head against a tree while sledding and had
not been wearing a helmet at the time of that accident. Then, on
March 31, Dr. Hubbuch diagnosed G with EHS and recommended that he
be accommodated in an environment with reduced exposure to EMFs.
On April 27, 2015, Mother and Father requested, through
counsel, that Fay allow them to "take a walk-through tour of G's
day at school" to "learn how much exposure there is to Wi-Fi and
EMF in each room in which G spends time." The school refused.
Subsequently, Fay and the family agreed that G would submit to
"independent medical evaluation[s]" by two medical specialists.
After the medical opinions were received, if they showed that "EHS
is implicated," the school said that it would allow the parents to
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do a "walk-through" and would make reasonable attempts to
accommodate G.
On June 30, 2015, an independent medical specialist
examined G. At the parents' request, the specialist's examination
did not include an interview of G separate from his parents. After
the examination, the specialist noted G's symptoms --
"[h]eadaches, neuralgia [nerve pain,] . . . [c]hest 'pressure' by
parental report[,] . . . [t]innitus [ringing in the ears] by
parental report[,] . . . [s]chool performance difficulty" -- but
concluded, "[t]here is [a] lack of credible, rigorous and
controlled, validated scientific data to support any relationship
between electromagnetic radiation and G's myriad reported
symptoms." The specialist declined to diagnose G with EHS.
On August 3, 2015, Mother and Father demanded, through
counsel, that Fay allow them to conduct a "walk-through" of the
school "that week." Then, on August 12, the family filed the
original complaint in this action against Fay. The school
thereafter agreed to allow the family to conduct a "walk-through"
if G completed the second independent medical exam, as earlier
agreed upon. On September 10, G was examined by two pediatric
neurologists. Neither diagnosed G with EHS.
Between August and October 2015, the family conducted a
series of walk-through visits at the Fay School. Following these
visits, Fay agreed to install an ethernet port in each of G's
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classrooms so that he could connect his laptop to the internet
without using a wireless connection and to seat him at least six
feet away from other laptop users. Despite these changes, G's
symptoms escalated. In December 2015, he took a medical leave of
absence. During his leave from the school, G experienced no
symptoms.
When G returned to the Fay School, at the end of his
medical leave, Mother and Father demanded that the school either
remove all wireless internet from G's classrooms or create a
separate, Wi-Fi-free classroom for G and his classmates. Fay
refused. In January 2016, Mother and Father withdrew G from the
Fay School in the middle of his seventh-grade year, and, in
February, filed an amended complaint.
Since the amended complaint was filed, G has completed
his seventh-, eighth-, and ninth-grade years at private schools
that operate without Wi-Fi.
C. Procedural History
The family filed the operative complaint on February 11,
2016, alleging claims of disability discrimination against the Fay
School under Titles III and V of the Americans with Disabilities
Act ("ADA"), which, respectively, prohibit disability
discrimination in places of public accommodation, see 42 U.S.C.
§ 12182 ("Title III"), and retaliation for conduct protected under
certain provisions of the ADA, including Title III, see 42 U.S.C.
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§§ 12182(a), 12203(a) ("Title V"). The family also alleged common
law claims of breach of contract, misrepresentation, and
negligence against the Fay School and Gustavson, seeking damages
and injunctive relief.
Fay moved in limine to exclude the reports, opinions,
and testimony of five of the family's expert witnesses, including
Dr. Hubbuch. See G v. Fay Sch., Inc. by & through its Bd. of Trs.,
282 F. Supp. 3d 381, 389 (D. Mass. 2017). The family sought to
introduce the evidence of Dr. Hubbuch to establish the existence
of EHS and to establish G's particular diagnosis. After conducting
nine days of Daubert hearings, see Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579, 592–93 (1993),4 the district court granted
Fay's motion in part, and excluded Dr. Hubbuch's testimony. In so
doing, the court explained that the doctor had failed to identify
"a scientifically reliable basis linking the constellation of
symptoms reported by G with EHS in order to 'rule in' that
particular diagnosis" and had "failed to document or testify to
4"[I]t is the responsibility of the trial judge to ensure
that an expert is sufficiently qualified to provide expert
testimony that is relevant to the task at hand and to ensure that
the testimony rests on a reliable basis." Beaudette v. Louisville
Ladder, Inc., 462 F.3d 22, 25 (1st Cir. 2006). At a Daubert
hearing, a judge evaluates the admissibility of expert testimony
under the factors articulated by the Supreme Court in the Daubert
decision: (1) whether an expert's theory or technique can and has
been tested; (2) whether it has been subjected to peer review; (3)
its error rate; and (4) its acceptance within the relevant
discipline. See 509 U.S. at 593–94.
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her efforts to identify and exclude other environmental factors at
the [Fay] School that might cause or contribute to G's symptoms."
G, 282 F. Supp. 3d at 391; see Fed. R. Evid. 702(d) (requiring
that a qualified expert witness's testimony be based on reliable
principles and methods properly applied to the facts of the case).
Fay then moved for summary judgment. The district court,
noting that a Title V retaliation claim "does not depend on the
success of [a plaintiff's] disability claim," denied summary
judgment as to that claim, finding that the family had stated a
prima facie case of retaliation. G, 282 F. Supp. 3d at 397 (quoting
Jones v. Walgreen Co., 679 F.3d 9, 20 (1st Cir. 2012)). It granted
the motion as to the family's other claims, concluding that (1)
the family had failed to create a triable issue of fact as to G's
disability, as required for the Title III disability
discrimination claim; (2) the handbook terms that form the basis
of the family's breach of contract claim are insufficiently
definite to create a valid contract; (3) the record does not
support a finding that Fay made a knowing misrepresentation to the
family, as required for the family to prevail on its
misrepresentation claim; and (4) the school fulfilled its ordinary
duty of care to G by following federally established Wi-Fi safety
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limits, negating any possible claim of negligence. Id. at 396-
97, 400-01.5
The family moved for reconsideration of the court's
order as to their misrepresentation and contract claims, and the
school moved for judgment on the pleadings on the family's
retaliation claim. The school argued that the retaliation claim
became moot when G completed his ninth-grade year at another
private school. The district court denied the family's motion for
reconsideration, finding the family had failed to show "a manifest
error of law." It granted the school's motion for judgment on the
pleadings because (1) it determined that damages are not an
available remedy for a Title V retaliation claim premised upon
opposition to violations of Title III, and (2) the passage of time
had rendered the family's claim for equitable relief moot. The
family had sought an order prohibiting the school from retaliating
against G, but G had successfully completed the ninth grade (the
highest grade that the school offers) at another private school
5 The district court separately concluded that it must enter
judgment against the family on the claims against Gustavson in his
individual capacity. G, 282 F. Supp. 3d at 401. It found
insufficient evidence that Gustavson benefited in any way from his
participation in the allegedly tortious conduct of the school, as
required to "pierce the corporate veil." Id. (citing Jones v.
Experian Info. Sols., Inc., 141 F. Supp. 3d 159, 162 (D. Mass.
2015)). The family does not address Gustavson's individual
liability in its brief. The claims against Gustavson in his
individual capacity are therefore waived. See Rodríguez v.
Municipality of San Juan, 659 F.3d 168, 175 (1st Cir. 2011).
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and there was "no reasonable anticipation that G [would] again be
a student at the Fay School."
On appeal, the G family argues that judgment for the
school on the Title V claim should be vacated. The family
maintains that damages are an available remedy, and argues that,
in any event, the claim is not moot because the family has a live
equitable claim for nominal damages. The family also argues that
summary judgment for Fay on the breach of contract and
misrepresentation claims should be vacated. Asserting that the
district court erroneously concluded that select terms of the
handbook were not a valid contract, the family argues that there
are triable issues of fact as to these claims. The family does
not press for reversal of the district court's summary judgment
for Fay on the negligence claim. Likewise, although the family's
appeal initially sought review of the district court's judgment
for the Fay School on the Title III claim, the family has since
withdrawn its appeal as to that claim, conceding the claim's
mootness. The Title III claim, which was purely equitable, became
moot when G completed his ninth-grade year, the last year offered
by the Fay School.
II.
We address first the family's appeal of the judgment for
the Fay School on the Title V retaliation claim. Title V, 42
U.S.C. § 12203(a), prohibits retaliation against an individual who
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has opposed a practice made unlawful under Title III. The question
at issue is what remedies are available to a plaintiff who alleges
under Title V that he was retaliated against after opposing a
practice made unlawful under Title III. Our review of this
question of statutory interpretation is de novo.
A. Statutory Background
The ADA is a comprehensive disability rights statute;
its subchapters, known as "titles," protect persons with
disabilities in a variety of settings. See 42 U.S.C. § 12101.
Title I protects "qualified individual[s] with [] disabilit[ies]"
from discrimination in employment. Id. § 12112. As noted earlier,
Title III prohibits disability discrimination in any place of
public accommodation. See id. § 12182(a).6 In contrast to Title
I, which protects only "qualified individuals," id. § 12112(a);
see id. § 12111(8) (defining "qualified individual" as "an
individual who, with or without reasonable accommodation, can
perform the essential functions of the employment position that
such individual holds or desires"), Title III applies to any
individual with a disability, id. § 12182(a). Moreover, "public
accommodation" is expansively defined and includes twelve
6 Titles II and IV of the ADA prohibit disability
discrimination by public entities and in telecommunications,
respectively. See 42 U.S.C. § 12132; 47 U.S.C. § 225.
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categories of places, ranging from "service establishment[s],"
such as a "dry-cleaner" or "bank," to "place[s] of public display
or collection," such as a "museum [or] library." Id. § 12181(7).
Of particular relevance to this case, the term includes "place[s]
of education," such as private secondary schools. Id.
§ 12181(7)(j).
Although Title III is expansive in its application, the
remedies available under the title are narrow. Section 12188(a)(1)
provides the remedial scheme for that title by incorporating the
remedies available under Title II of the Civil Rights Act, see 42
U.S.C. § 12188(a)(1), which allows a "person aggrieved" to
institute "a civil action for preventive relief, including an
application for a permanent or temporary injunction, restraining
order, or other order," 42 U.S.C. § 2000a–3(a). We have stated
that, "[b]y the plain terms of that provision, . . . damages for
past harms are not available." Goodwin v. C.N.J., Inc., 436 F.3d
44, 51 (1st Cir. 2006). The only relief that is available is
"preventive" injunctive relief. See id.By contrast to Titles I or III, Title V does not protect
disabled persons in a particular setting; instead, it includes an
anti-retaliation provision, 42 U.S.C. § 12203(a)-(b),7 that
7 Title V also includes technical provisions, such as a rule
of construction, see 42 U.S.C. § 12201, and a rule of severability,
see id. § 12213.
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protects individuals who exercise their rights under Titles I, II,
or III from retaliation. A Title V claim of retaliation thus must
allege conduct protected under one of those earlier titles, and a
retaliatory response to that protected conduct. See Oliveras-
Sifre v. P.R. Dep't of Health, 214 F.3d 23, 26 (1st Cir. 2000).
Section 12203(c) specifies the remedies available under
Title V by reference to Titles I, II, and III. It states:
The remedies and procedures available under
sections 12117, 12133, and 12188 of this title
shall be available to aggrieved persons for
violations of subsections (a) and (b) of this
section, with respect to subchapter I, subchapter
II and subchapter III of this chapter,
Respectively.
42 U.S.C. § 12203(c) (emphasis added). Sections 12117, 12133, and
12188, in turn, provide the separate remedial schemes for Titles
I, II, and III. See id. § 12117 (providing the remedial scheme
for Title I, which concerns disability discrimination in the
workplace); id. § 12133 (providing the remedial scheme for Title
II, which concerns disability discrimination in public services);
id. § 12188 (providing the remedial scheme for Title III, which
concerns disability discrimination in places of public
accommodation).
At issue is the meaning of that remedial scheme. The
family argues that any remedy or procedure available under sections
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12117, 12133, or 12188 is available for the retaliation claim.8
Section 12117, Title I's enforcement provision, allows damages
claims. See 42 U.S.C. §§ 12117(a), 1981(a)(2). Conversely, the
school argues that, because the family's Title V claim is premised
upon the family's exercise of rights under Title III, only the
remedy set forth in section 12188 (Title III's enforcement
provision, which provides only for injunctive relief) applies.
B. Analysis
"Where, as here, an issue turns on a question of
statutory construction, 'the beginning point must be the language
of the statute.'" Goodwin, 436 F.3d at 50 (quoting Riva v.
Massachusetts, 61 F.3d 1003, 1007 (1st Cir. 1995)). "We assume
that the words Congress chose, if not specially defined, carry
their plain and ordinary meaning." In re Hill, 562 F.3d 29, 32
(1st Cir. 2009). If that meaning produces a plausible, unambiguous
result, our inquiry is ordinarily at an end. See United States v.
Gordon, 875 F.3d 26, 33 (1st Cir. 2017).
Looking to the plain language of § 12203(c), we find
that the remedies available to the family are those set forth in
§ 12188 (the Title III remedial provision), and do not include
8The Fay School argues that the family did not request
damages, nominal or otherwise, in connection with the retaliation
claim before the district court. We assume arguendo, and favorably
to the family, that it adequately preserved the issue of damages
and nominal damages for the retaliation claim.
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those provided for in § 12117 (the Title I remedial provision), or
§ 12133 (the Title II remedial provision). We might conclude
otherwise if § 12203(c) ended: "The remedies . . . under sections
12117, 12133, and 12188 . . . shall be available to aggrieved
persons for violations of subsections (a) and (b) of this section."
Instead, the provision continues, " . . . with respect to
subchapter I, subchapter II and subchapter III of this chapter,
respectively." 42 U.S.C. § 12203(c) (emphasis added). We
interpret "respectively" in § 12203(c) as it is commonly
understood. See United States v. Cortés-Cabán, 691 F.3d 1, 17
(1st Cir. 2012). The commonly understood meaning of "respectively"
is "in precisely the order given." Respectively, Random House
Webster's Unabridged Dictionary (2d ed. 1997); see also
respectively, Macmillan Dictionary (online ed.),
https://www.macmillandictionary.com/us/dictionary/american/respec
tively ("used for saying that something happens separately to each
of the people or things mentioned in the order in which they were
mentioned"). When "respectively" is used to describe "two or more
items" it ordinarily indicates that "each [thing] relat[es] to
something previously mentioned, in the same order as first
mentioned." respectively, Cambridge English Dictionary (2019),
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https://dictionary.cambridge.org/us/dictionary/english/respective
ly.
Applying this common meaning, the "respectively"
language in § 12203(c) indicates that the remedies in §§ 12117,
12133, and 12188 apply separately and in the order stated "with
respect to [Title] I, [Title] II and [Title] III of this chapter."
42 U.S.C. § 12203(c). Given this reading, a different set of
remedies is available under Title V for retaliation depending upon
the discriminatory practice opposed -- the remedies specified in
§ 12117 (Title I's enforcement provision) apply when the basis is
Title I, the remedies in § 12133 (Title II's enforcement provision)
apply when the basis is Title II, and the remedies in § 12188
(Title III's enforcement provision) apply when the basis is Title
III.
Because here the underlying practice that was opposed is
disability discrimination in a place of public accommodation,
which is prohibited by Title III, see 42 U.S.C. § 12182(a), we
look to Title III's enforcement provision, § 12188, to determine
which remedies are available for the family's retaliation claim.
See 42 U.S.C. § 12188(a)(1). As noted, those remedies are "[t]he
remedies and procedures set forth in section 2000a-3(a)," the
remedies provision of Title II of the Civil Rights Act, which does
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not provide for compensatory damages. Id.; see 42 U.S.C. § 2000a-
3(a).
To adopt the family's interpretation that all of the
remedies in Titles I, II, and III are available to enforce a
retaliation claim -- including damages, regardless of the basis of
the retaliation, would render the "respectively" language in
§ 12203(c) superfluous. Such an interpretation is at odds with
the basic interpretive canon that a statute ought to be construed
so that "effect [is given], if possible, to every clause and word
of a statute" so that "no clause, sentence, or word [is made]
superfluous, void, or insignificant." Duncan v. Walker, 533 U.S.
167, 174 (2001) (internal quotation marks omitted).
We also reject the family's argument that interpreting
§ 12203(c) to exclude compensatory damages as an available remedy
for the Title V claim "would be contrary to legislative intent and
the scheme of the ADA."9 To the contrary, Congress chose to allow
a plaintiff to recover only injunctive relief for a discrimination
9
The family cites several decisions of other circuit courts
to support its interpretation of Title V's remedies provision.
Those cases, however, concern the availability of damages for a
retaliation claim premised upon conduct protected under Title
I -- not Title III. See, e.g., Salitros v. Chrysler Corp., 306
F.3d 562, 569-70 (8th Cir. 2002) (reasoning that there was
sufficient evidence that the plaintiff engaged in protected
activity and was retaliated against in the employment context such
that a jury award of damages was proper).
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action brought under Title III. Goodwin, 436 F.3d at 49–51; see
also Ruth Colker, ADA Title III: A Fragile Compromise, 21 Berkeley
J. Emp. & Lab. L. 377, 377–78 (2000) (explaining that "the broad
coverage of ADA Title III came at a price . . . . In return for
a broad list of covered entities, civil rights advocates agreed to
a limited set of remedies"). Interpreting Title V's remedies
provision as providing only injunctive relief for a Title V claim
premised upon opposition to violations of Title III is thus
entirely consistent with the scheme of the ADA.
Finally, the family's claim for nominal damages under
Title V fares no better. The applicable enforcement provision,
§ 12188, allows only forward-looking, injunctive relief. Goodwin,
436 F.3d at 51 (concluding restitution is not an available remedy
under Title III because it is a "retrospective remedy"). Nominal
damages recognize a past wrong by providing plaintiffs "the moral
satisfaction of knowing that a federal court concluded that [their]
rights ha[ve] been violated in some unspecified way." Farrar v.
Hobby, 506 U.S. 103, 114 (1992). They do not "fit into the taxonomy
of 'preventive relief,' which is the only type of relief authorized
by section 12188(a)(1)." Goodwin, 436 F.3d at 51.
Accordingly, judgment for the school on the family's
Title V claim was properly granted. G's completion of the ninth
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grade has mooted the claim for preventive injunctive relief, the
only relief available to the family under that title.
III.
We now turn to the family's appeal from summary judgment
on the breach of contract and misrepresentation claims.
Massachusetts substantive law governs these claims. See Cloud v.
Trs. of Bos. Univ., 720 F.2d 721, 724 (1st Cir. 1983); see also
Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
We review a grant of summary judgment de
novo. Rivera-Rivera v. Medina & Medina, Inc., 898 F.3d 77, 87
(1st Cir. 2018). "We do this while 'drawing all reasonable
inferences in favor of the non-moving party.'" Doe v. Trs. of
Bos. Coll., 892 F.3d 67, 79 (1st Cir. 2018) (quoting Roman Catholic
Bishop of Springfield v. City of Springfield, 724 F.3d 78, 89 (1st
Cir. 2013)). Summary judgment is proper only when "there is no
genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law." Fed. R. Civ. P. 56(a).
A. Breach of Contract
The breach of contract claim is based on certain terms
in the school's 2014/2015 handbook, which the family says formed
a valid and binding contract between the school and G. To prevail
on a breach of contract claim, a plaintiff must first show "that
the parties reached a valid and binding agreement," such that a
contract is formed. Coll v. PB Diagnostic Sys., Inc., 50 F.3d
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1115, 1122 (1st Cir. 1995). Such an agreement may be memorialized
in a student handbook. See Mangla v. Brown Univ., 135 F.3d 80, 83
(1st Cir. 1998); Driscoll v. Bd. of Trs. of Milton Acad., 873
N.E.2d 1177, 1185 (Mass. App. Ct. 2007); see also Cloud, 720 F.2d
at 724 (concerning contract claims based upon a university handbook
under Massachusetts law). To determine whether select terms of a
student handbook are contractually enforceable, Massachusetts
courts employ "the standard of 'reasonable expectation,'" that is,
"what meaning the party making the manifestation . . . should
reasonably expect the other party to give [the terms]." Driscoll,
873 N.E.2d at 1185 (alteration in original) (quoting Schaer v.
Brandeis Univ., 735 N.E.2d 373, 378 (Mass. 2000)). Vague and
generalized representations are not contractually enforceable.
See Santoni v. Fed. Deposit Ins. Corp., 677 F.2d 174, 179 (1st
Cir. 1982); Blair v. Cifrino, 247 N.E.2d 373, 376 (Mass. 1969).
On appeal, the family argues that certain terms of the
handbook constitute a sufficiently definite and certain agreement
between the family and the school to be contractually enforceable.
The family points to five pages of the 2014/2015 handbook,
asserting that certain statements, "when read together," form a
contract between the family and the school. These pages contain,
among other things, a general statement of the Fay School's "core
values" (e.g., "Honesty, respect, responsibility, empathy, and
kindness inform our conduct," "Mutual respect and civility are a
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central aspect of healthy communities," and "All members of the
Fay community are committed to making a positive difference in the
world") and aspirational diversity statements (e.g., "We expect
all members of the community to respect the rights of others and
to behave appropriately at all times" and "Fay seeks to serve as
a resource for understanding"). Without diminishing the
importance of these words, they are exactly the sort of
generalized, aspirational statements that are insufficiently
definite to form a contract. See Shin v. Mass. Inst. of Tech.,
No. 020403, 2005 WL 1869101, at *7 (Mass. Super. Ct. June 27, 2005)
(distinguishing well-defined procedures and policies, which can
form contractual promises, from "generalized representations,"
which cannot).
Although acknowledging that the handbook includes some
"aspirational statements" too indefinite to form a contractual
promise, the family argues that select portions of the handbook
are "sufficiently specific for reliance and thus for enforcement
as contract promises." Specifically, the family argues that the
statements that the Fay School would "help," "work with," and
"respect" students "in physical need" are sufficiently definite
statements to form a contract. Those specific statements, however,
do not appear in the handbook pages cited by the family. See In
re New Seabury Co. Ltd. P'Ship, 450 F.3d 24, 35 (1st. Cir. 2006)
(explaining that "[c]ourts will not read language into a contract
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where it does not appear").10 If the handbook did contain such
language, a vague promise to "help" or "work with" students "in
need" is not a "sufficiently definite promise to justify reasonable
reliance." Santoni, 677 F.2d at 179. In short, the family fails
to identify terms in the handbook that are sufficiently definite
and certain to form a binding contract. This understanding is
reinforced by the enrollment contract that G's parents signed,
which specifically states that the handbook "set forth general
expectations regarding the Students' enrollment at the School,"
but "does not constitute a contract between [them] and the School."
Summary judgment on the contract claim was therefore properly
granted.
10 The family's brief states:
[The family] relied upon . . . the assurance that Fay would
help when students are "in physical need," "work with," and
"respect" any such student. Certainly, when read together,
these were specific enough to create [reasonable reliance].
The family cites pages of the handbook for support. Those pages
include scattered references to "respect." ("[R]espect . . .
inform[s] our conduct."; "Mutual respect and civility are central
aspects of healthy communities."; "[W]e . . . [f]oster close
relationships based on dignity and respect."). Additionally, the
pages contain the statement that "Fay [] students . . . [s]eek
help when they are in . . . physical need." These statements are
not equivalent to the specific promises alleged by the family --
that the school will work with or help students in physical need.
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B. Misrepresentation
To prevail on the misrepresentation claim, the family
must show that Fay made a false statement of material fact with
knowledge of its falsity, which the family members reasonably
relied on to their detriment. See Eureka Broadband Corp. v.
Wentworth Leasing Corp., 400 F.3d 62, 68 (1st Cir. 2005) (citing
Russell v. Cooley Dickinson Hosp., Inc., 772 N.E.2d 1054 (Mass.
2002)); see also Cummings v. HPG Int'l, Inc., 244 F.3d 16, 23 (1st
Cir. 2001) ("The issue is whether, at the time [the defendant]
made the statements, [the defendant] knew that the statements were
false.").11 The family bases the misrepresentation claim on the
same 2014/2015 handbook language upon which it bases the breach of
contract claim. See Br. for Family at 41 (citing the language
"quoted above" as the basis for the misrepresentation claim). We
agree with the district court that the family has failed to raise
a triable issue of fact as to whether Fay knowingly made false
statements in its handbook.
11 The district court treated the family's misrepresentation
claim as a claim of willful or reckless misrepresentation, which
requires a knowing scienter. See O'Connor v. Merrimack Mut. Fire
Ins. Co., 897 N.E.2d 593, 600 (Mass. App. Ct. 2008). By contrast,
a claim of negligent misrepresentation requires only a showing
that a statement was made with a failure to exercise "reasonable
care." Id. (quoting Nota Constr. Corp. v. Keyes Assocs., Inc.,
694 N.E.2d 401, 405 (Mass. App. Ct. 1998)). On appeal, the family
does not argue that its claim should be treated as a claim of
negligent misrepresentation, and it agrees that the necessary
scienter for the claim is "knowledge of falsity."
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The 2014/2015 handbook states, "[R]espect,
responsibility, empathy, and kindness inform our conduct."12 The
family argues that the contrast between this language of "respect"
and "kindness" and the "mocking response" of school staff members,
see supra Section I ("Blahahahahahaha"), is so egregious that it
is evidence that the school knew that its handbook statements were
false when the handbook was issued.
In context, the stray email comments, although perhaps
dismissive or derisive, do not raise a triable issue of fact as to
Fay's knowledge of falsity of its handbook representations. To
the contrary, the school demonstrated receptiveness to Mother's
concerns by examining Wi-Fi levels, confirming their safety, and,
even without receiving full documentation of G's disability,
altering its system of instruction and classroom orientation to
accommodate G.
The family also argues that the handbook's "disclaimer"
of contract liability, see supra Section I, is a sufficient basis
12
We have doubts that these sorts of aspirational statements
could support a misrepresentation claim. See Cummings, 244 F.3d
at 21 ("There is an important threshold determination for any
misrepresentation claim . . . . [O]nly statements of fact are
actionable."); McEneaney v. Chestnut Hill Realty Corp., 650 N.E.2d
93, 96 (Mass. App. Ct. 1995) (statements concerning "matters of
judgment" or "value" are not actionable for misrepresentation)
(quoting Restatement (Second) of Torts § 538A (1977)). However,
neither party argues about the nature of the language, and we
therefore do not consider that question.
- 29 -
for a reasonable factfinder to conclude that Fay knew that the
statements in its handbook were false when the handbook was issued.
The family points to an article, written by the Fay School's lawyer
in 2013, recommending that schools include such a disclaimer in
their student handbooks because "carefully crafted disclaimer
language may help your school avoid a claim that the handbook
constitutes a contract between the school and its students." The
family argues that this article is evidence that the school
included a disclaimer in its student handbook because it knew that
the statements in the handbook were false when the handbook was
issued. But the family offers no evidence that anyone at the
school ever saw or knew about that article. Moreover, the
document, of questionable relevance, is unauthenticated, and
therefore inadmissible at the summary judgment stage. See Carmona
v. Toledo, 215 F.3d 124, 131 (1st Cir. 2000) ("Documents supporting
or opposing summary judgment must be properly authenticated.").
The family offers no further evidence of the school's motivations
for including a legal disclaimer in its handbook. The family
cannot fend off summary judgment with "conclusory allegations
[and] unsupported speculation." Rogan v. City of Bos., 267 F.3d
24, 27 (1st Cir. 2001).13
13 The G family also appeals from the district court's
exclusion of Dr. Hubbuch's testimony. See G, 282 F. Supp. 3d at
391. Although the family concedes the mootness of the
accommodation claim, it argues that the testimony is not moot
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IV.
For the foregoing reasons, we affirm the district
court's entry of judgment for Fay.
So ordered.
because the testimony is relevant to the other claims. However,
even if there was some relevance to that testimony before this
appeal, the testimony is no longer relevant in light of this
decision, affirming the entry of judgment on the family's remaining
claims for reasons wholly unrelated to causation.
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