## Facts

- Nicole Brodeur was a 15-year-old sophomore in the Claremont School District.
- Nicole alleged that her biology teacher, Gene Grumman, repeatedly made humiliating comments in class about her body, particularly her buttocks and hips.
- Examples of the alleged remarks included: commenting on the size of her hips and saying that if her parents fed her less “maybe that would help”; stating that if she walked down the hallway she would knock over lockers because of the size of her buttocks; and telling another student to draw a larger circle on the chalkboard by saying, “Make it as big as Nicole’s butt.”
- Nicole and her parents complained to school officials about Grumman’s comments.
- Nicole and her parents sued the Claremont School District and Grumman (and also sued the high school principal, Leo Paul Couture), asserting a Title IX claim against the district and multiple New Hampshire tort claims, including intentional infliction of emotional distress and negligence-based claims tied to the teacher’s conduct and the school’s response.
- Defendants moved for summary judgment and objected to parts of plaintiffs’ factual proffer on the ground that they were hearsay or otherwise not admissible in a form Rule 56 permits.

## Issues

1. Whether, after excluding inadmissible hearsay and other improperly supported material, plaintiffs showed a genuine dispute of material fact sufficient to defeat summary judgment under Rule 56.
2. Whether the evidence could support Title IX liability against the school district for a teacher’s alleged sexually harassing comments—requiring actual notice to an official with authority to act and a response that a jury could find deliberately indifferent to harassment that was severe, pervasive, and objectively offensive.
3. Whether plaintiffs’ New Hampshire tort claims (including intentional infliction of emotional distress and negligence-based theories) could proceed, including whether governmental discretionary-function immunity barred any of those claims.

## Decision

- The court **granted summary judgment in part and denied it in part**.
- The court **did not consider** hearsay and other materials that were not shown to be admissible (or reducible to admissible form) for purposes of summary judgment.
- The court **denied** summary judgment on the **Title IX claim** against the school district, finding that—on the admissible record and with reasonable inferences for plaintiffs—a jury could find actionable harassment, actual notice, and an unreasonable response amounting to deliberate indifference.
- As to the **state-law claims**, the court **allowed some to continue** and **dismissed others**, and it **denied without prejudice** summary judgment on certain counts after concluding that discretionary-function immunity did not apply to those claims on the record presented.

## Legal Principles

- Summary judgment is appropriate only when there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law; the court draws reasonable inferences for the nonmovant.
- At summary judgment, a party cannot rely on **inadmissible hearsay** to create a triable issue; affidavits and supporting submissions must be based on personal knowledge and set out facts that would be admissible at trial (or could be presented in admissible form).
- A school district may be liable under **Title IX** for teacher-on-student sexual harassment only if: (1) an appropriate official with authority to take corrective measures had **actual knowledge**; (2) the district’s response was **deliberately indifferent** (clearly unreasonable in light of known circumstances); and (3) the harassment was **severe, pervasive, and objectively offensive** so that it effectively denied the student access to educational opportunities or benefits.
- Under New Hampshire law, **intentional infliction of emotional distress** generally requires proof of extreme and outrageous conduct, intent or recklessness, causation, and severe emotional distress.
- Government defendants may assert **discretionary-function immunity** for certain governmental acts, but immunity does not automatically bar all school-response claims; whether it applies depends on the nature of the duty and the conduct alleged.

## Conclusion

Brodeur held that, once the summary-judgment record was limited to admissible (or properly supported) evidence, plaintiffs still presented triable issues on their Title IX theory that the district had actual notice of a teacher’s sexually degrading classroom comments and responded in a way a jury could find deliberately indifferent; the court otherwise granted summary judgment on some claims, permitted other state-law claims to proceed, and rejected a blanket discretionary-function immunity defense as to certain counts at that stage.


Brodeur v. Claremont School District, 626 F. Supp. 2d 195 (2009)