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G. v. Fay School

United States Court of Appeals, First Circuit

July 17, 2019

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,
THE FAY SCHOOL, by and through its board of trustees; ROBERT GUSTAVSON, Defendants, Appellees.


          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.

          Before Howard, Chief Judge, Lynch and Lipez, Circuit Judges.


         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.


         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.

         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 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.

         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 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 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 additional medical documentation "to fully evaluate [the family's] requests." The letter stated that "[t]he documentation [the family] [had] provided ...

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