MEMORANDUM OPINION AND ORDER
Plaintiff, Jennifer DiPema, filed a Second Amended Complaint against Defendant, the Chicago School of Professional
LOCAL RULE 56.1
Local Rule 56.1(a)(3) requires the moving party to provide “a statement of material facts as to which the party contends there is no genuine issue for trial.” Ammons v. Aramark Uniform Servs.,
A district court is entitled to expect strict compliance with Rule 56.1; substantial compliance is not enough. Ammons,
BACKGROUND
The following facts are taken from the parties’ statements of undisputed material facts submitted in accordance with Local Rule 56.1.
Plaintiff is currently a resident of Ohio and is a former student of Defendant. (DSOF ¶¶ 1, 3.) Defendant is a nonprofit private institution that operated under the policies, procedures, rules, and regulations set out in the Academic Catalogue and Student Handbook (the “Handbook”) during the years 2012-13, 2013-14, and 2014-15. {Id. ¶ 4.) Plaintiff was seeking a Master of Arts in Counseling Psychology from Defendant. {Id. ¶ 21.)
In January 2013, Plaintiff took “Diversity in Clinical Practice” with Dr. Patricia Perez, an adjunct faculty member. {Id.) As part of the class, student groups, selected by Dr. Perez, participated in an “Immersion Project” where those groups examined a race, ethnicity, or other characteristic different than those of the group member. {Id. ¶ 25.) Plaintiff, who is white, was put into a group with two African-American women, Shakira and Catherine. {Id. ¶26.) As part of the project, the group examined the LGBT community and went to see a drag show on April 7,
On April 16, 2013, Dr. Perez had meetings with each Immersion Project group. (Id. ¶ 32.) During that meeting, the issue of privilege was raised; and Plaintiff and Catherine had a disagreement. (Id. ¶¶ 33-34.) Dr. Perez encouraged the students to speak to each other so they could work out differences within the group. (Id. ¶ 35.) Plaintiff went to see the Associate Department Chair, Dr. Maureen Keeshin, to express her concerns because her advisor was out of town. (Id. ¶ 36.) Dr. Keeshin told Plaintiff to speak to her advisor when she returned but said that Plaintiff should see Dr. Maria Yapondjian, who oversaw adjunct faculty, in the meantime. (Id. ¶ 37.) Plaintiff met with Dr. Yapondjian on April 17, 2013, and said that she did not want to be in the class anymore because she was not comfortable with Dr. Perez or Shakira. (Id. ¶38.) Dr. Yapondjian told Plaintiff that she would have to remain in the class because there were only two class sessions left. (Id. ¶ 39.) On April 18, 2013, after hearing from Dr. Yapondjian, Dr. Perez told Plaintiff that she could present her Immersion Project Findings individually. (Id. ¶ 40.) On April 23, 2013, Plaintiff met with Dr. Perez and told her that people were calling her color blind, making comments, and pointing at her when those people were with Shakira. (Id. ¶ 41.)
On July 15, 2013, two African-American students who were not involved in the Immersion Project reported to an adjunct professor that Plaintiff had posted a photograph with Paula Deen using a racial slur on Plaintiffs Instagram account and asked the adjunct professor to forward their concerns to Defendant’s administration. (Id. ¶¶ 47, 48.) Towards the end of that summer, those two students reiterated their concerns about the posting with Dr. Keeshin, who was then Plaintiffs advisor and Associate Department Chair, and Dr. Virginia Quiñonez, then-Department Chair. (Id. ¶¶43,47.)
On August 1, 2013, Dr. Quiñonez and Dr. Luke Mudd, Associate Department Chair, met with Plaintiff for a counseling session regarding the Instagram post. (Id. ¶ 48.) Plaintiff admitted posting the picture and stated that she saw nothing wrong with it, as it was posted on her private Instagram account and was meant to be humorous. (Id.) Dr. Quiñonez and Dr. Mudd did not tell Plaintiff who. the reporting students were. (Id. ¶ 50.) Plaintiff reiterated her prior issues with Shakira to Dr. Quinonez and Dr. Mudd and contended that Shakira’s Instagram posts, which used similar racial slurs, should be treated in the same manner. (Id. ¶ 49.) In early August 2013, shortly after their meeting, Dr. Quiñonez provided Plaintiff with a link to a complaint procedure to look at with respect to her bullying complaints. (Id. ¶ 53.) Dr. Quinonez also told Plaintiff to follow up with her advisor about any other concerns. (Id. ¶ 54.)
Dr. Quiñonez and Dr. Mudd, in consultation with Dr. Keeshin, referred Plaintiff to the Student Affairs Committee (“SAC”). (Id. ¶¶ 13, 55.) A student may be referred to the SAC for issues relating to academic integrity and comportment, where “ ‘[possible interventions and sanction[s] may include, but are not limited to, implementing an Academic Development Plan [“ADP”], placing a student on academic warning/probation or dismissing a student’ with respect to academic integrity matters such
In September 2013, Plaintiff spoke with Dr. Keeshin and told Dr. Keeshin that she was being bullied. (Id. ¶ 43.) Dr. Keeshin told Plaintiff that she could file a grievance. (Id. ¶ 44.)
In January 2015, Plaintiff took a required Seminar course with Dr. Kristin Davisson, an adjunct professor. (Id. ¶ 61.) A main part of the course is the Clinical Competency Examination (“CCE”). (Id. ¶ 62.) Successfully completing the CCE establishes that a student has met the program’s requirements to graduate. (Id. ¶ 63.) A student drafts the CCE based on their concurrent clinical internship experience. (Id. ¶ 64.) The CCE must be drafted in compliance with Defendant’s plagiarism policy. (Id. ¶ 65.) One part of the CCE is the conceptualization, or case formulation, section, which requires a student to use a specific theory they have learned and apply it to their client and that client’s symptoms. (Id. ¶ 66.) Dr. Davisson believed that the conceptualization portion of Plaintiffs paper was plagiarized and ran Plaintiffs paper through a web-based program designed to detect plagiarism, turnitin.com. (Id. ¶¶ 71, 72.) The conceptualization portion was marked by turnitin.com as 92% plagiarized from other sources without proper attribution, and the entire CCE was marked as 10% plagiarized from other sources without proper attribution. (Id.) Dr. Davisson reported the plagiarism to Dr. Mudd, who then mandated referral to the SAC. (Id. ¶74.) On March 25, 2015, Plaintiff met with Dr. Davisson and Dr. Mudd to discuss the plagiarism accusations. (PSOF, ¶ 22.)
On May 12, 2015, Plaintiff had her SAC hearing in regards to the plagiarism charges. (Id. ¶ 23.) At the hearing, Plaintiff complained about Dr. Davisson’s unprofessional breach of protocol, unfair selective treatment, and retaliation from this litigation. (Id. ¶ 24.) On May 13, 2015, Plaintiff was notified of the SAC’s decision to dismiss her from the program. (Id. ¶ 25.) The referral to the SAC resulted in Plaintiffs dismissal from Defendant. (DSOF ¶74.)
Plaintiff testified that, on May 23, 2015, she submitted an appeal of the SAC’s decision to Dr. Azara Santiago-Rivera, then Defendant’s Dean of Academic Affairs.
LEGAL STANDARD
Summary judgment is appropriate when “the movant shows that 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. Courts deciding summary judgment motions must view facts “in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris,
ANALYSIS
Breach of Contract
In Count I, Plaintiff alleges that Defendant failed to follow the 2013-2014 Handbook through several actions: (1) faihng to involve Plaintiff, her advisor, and the Department Chair/Lead Faculty or designee in developing her ADP; (2) faihng to include several requirements in the ADP; (3) faihng to refer Shakira or any other student to the SAC for bullying and harassment; and (4) by finding Plaintiff guilty of academic dishonesty, despite evidence that she committed no amount of unacceptable plagiarism and despite the fact that she was never given an opportunity to correct any perceived plagiarism.
A college and its students have a contractual relationship, and the terms of that relationship are generally set forth in the school’s catalogues and bulletins. Raethz v. Aurora Univ.,
Bullying/Harassment
Defendant’s procedure for addressing complaints of harassment and bullying is laid out in its academic cata-logues. The first reporting procedure is as follows:
Anyone who feels that s/he has been subject to unlawful discrimination, harassment or retaliation (whether by faculty members ... or other students) should bring the issue to the immediate attention of his/her academic program chair or academic head of the program, campus dean of academic affairs and/or campus student affairs officer. A student who feels that s/he has been subject to sexual harassment or sexual violenceshould bring the issue to the immediate attention of the campus student affairs officer. The campus student affairs officer will report such incidents immediately to the Vice President of Student Affairs who serves [as Defendant’s] Title IX Coordinator. A thorough review of the facts and circumstances of each situation will be undertaken to determine whether particular conduct constitutes harassment under this policy. Complaints will be kept confidential to the extent possible. Individuals who violate this policy will be subject to disciplinary action, up to and including removal from the institution.
(DSOF ¶ 8.) A second reporting procedure may be used if a student believes their rights have been violated, including illegal discrimination. (Id. ¶ 9.) The second procedure has an informal process and a formal process, each with time limits for initiating a grievance. (Id.) In the informal process, a student is encouraged to resolve the issue with the person involved and may seek assistance from an advisor, Department Chair/Lead Faculty or designee, Dean of Academic Affairs, or campus student affairs. (Id. ¶ 10.) The informal procedure may be terminated at any time, and the student can move to the formal process. (Id. ¶ 11.) A grievance intake form must be submitted to the Campus President for the formal process. (Id. ¶ 12.)
Plaintiff spoke to three people about being bullied and/or harassed: Dr. Perez, an adjunct faculty member; Dr. Quiñonez, then-Department Chair; and Dr. Mudd, Associate Department Chair. Defendant asserts that the conduct Plaintiff complained of is harassment under the “Prohibition of Discrimination, Harassment and Retaliation” Policy found in the 2012-2013 Handbook. But no action was taken, even though the Handbook states: “Individuals who violate this policy will be subject to disciplinary action, up to and including removal from the institution.” (DSOF, ¶ 8.) There is no evidence that any review of the facts and circumstances occurred or that any disciplinary action was taken against any of the individuals that Plaintiff alleged harassed her, even though Defendant admits that the conduct was harassment.
Defendant argues that Plaintiff never made a formal complaint, though Dr. Quiñonez gave Plaintiff a link to the formal grievance process. However, Defendant failed to comply with the provisions of the first reporting procedure; and there is no requirement that a student use the second reporting procedure.
Plaintiff also alleges that Defendant’s actions were arbitrary and capricious when Defendant disciplined her for an Insta-gram posting containing a slur but did not discipline other students for similar postings. Defendant’s policies prohibit social media that is disparaging or injurious to students, uses ethnic slurs, or is otherwise inappropriate towards other students. (DSOF ¶ 5.) Plaintiff asserts that another student made several Instagram posts that contained the same offensive language that Plaintiff posted and has submitted examples of those posts.
Defendant objects that social media posts are difficult to authenticate. To authenticate evidence under Federal Rule of Evidence 901, “the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Fed. R. Evid. 901(a). Evidence may be authenticated by distinctive characteristics, such as: “The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.” Fed. R. Evid. 901(b)(4). The account has a picture of the individual allegedly making the Instagram posts and has the same name as the individual allegedly making the Instagram posts. In one of those posts, the individual is wearing a shirt that says “The Chicago School of Professional Psychology.” Plaintiff went to school with Shakira and could offer testimony as to whether the person pictured is Shakira and whether the name associated with the account is Shakira’s full name.
Defendant argues that Plaintiff did not state that she personally found Shakira’s Instagram posts to be offensive. However, she did state in her deposition that she attempted to show Dr. Quiñonez and Dr. Mudd the Instagram photos because they contained the same ethnic slur. (DSOF ¶ 50.) Defendant argues that Plaintiffs cited material does not support Plaintiffs denial of Defendant’s statement of fact. Dr. Mudd stated in his deposition that he did not recall Plaintiffs telling him and Dr. Quiñonez that she found Shakira’s posts offensive. (Dkt. 96-10, p. 53: 9-11.) However, when determining if there is a genuine issue of material fact, a court must construe all facts and make reasonable inferences in the light most favorable to the nonmoving party. See CTL ex rel. Trebatoski v. Ashland Sch. Dist.,
Plagiarism
Plaintiff also alleges that the decision to dismiss her for plagiarism in her CCE was arbitrary and capricious. Plagiarism is defined by the Handbook as:
Plagiarism is intentionally or unintentionally representing words, ideas, or data from any source as one’s own original work. The use or reproduction of another’s work without appropriate attribution in the form of complete, accurate, and properly formatted citations constitutes plagiarism. Examples of plagiarism, (sic) include but are not limited to, copying the work of another verbatimwithout using quotation marks, revising the work of another by making only minor word changes without explanation, attribution, and citation, paraphrasing the work of another without the appropriate citation. Students are expected to produce original work in all papers, coursework, dissertation, and other academic projects (including case studies from internship or practicum sites) and to follow appropriate rules governing attribution that apply to the work product.
Carelessness, or failure to properly follow appropriate rules governing source attribution (for example, those contained in the Publication Manual of the American Psychological Association), can be construed to be plagiarism when multiple mistakes in formatting citations are made in the same paper. Further, a single example of failing to use quotation marks appropriately may be considered plagiarism.
(DSOF ¶ 17.) All suspected plagiarism must be immediately referred to the Department Chair/Lead Faculty or designee, who then refers it to the SAC. (Id. ¶ 18.)
Plaintiff argues that there is an unofficial policy of an acceptable level of plagiarism at both the school and in the class specifically. However, there is no admissible evidence that any amount of plagiarism is acceptable or that there is an unofficial policy of allowing a certain amount of plagiarism. Plaintiff stated in her deposition that individuals told Plaintiff that there is an acceptable amount of plagiarism. However, Plaintiff has not produced evidence that this is the case; and Plaintiffs deposition testimony on this subject is inadmissible hearsay. See Gunville v. Walker,
Plaintiffs other arguments x-egarding plagiarism also fail to raise an issue of material fact. Plaintiff argues that the use of turnitin.com was not permissible, but her mere assertion that turnitin.com is inappropriate in determining plagiarism does not create an issue of fact. Plaintiffs expert indicated a score of 3% plagiarism for the CCE. (PSOF ¶¶ 20-21.) However, as stated above, Plaintiff has presented no evidence that any level of plagiarism is acceptable at the school. Plaintiff further argues that Dr. Davisson impermissibly hand-typed Plaintiffs paper into turni-tin.com, which was unprofessional and unethical conduct. Even if that were so, the paper was later put through the plagiarism website in its entirety; and the section that Dr. Davisson hand-typed was still found to be plagiarized in large part. (Id., ¶¶ 17-19.)
Plaintiff further argues that the SAC did not consider her complaints of unprofessional pi-otocol, unfair selective treatment, and retaliation. Plaintiff has presented no evidence that she was singled out or targeted in response to this lawsuit and has presented no evidence that her arguments to the SAC were ignored. Finally, Plaintiff argues that her timely and proper appeal was ignored. Under the Handbook, an appeal may be made to the Dean of Academic Affairs under three circumstances: new evidence, evidence of improper procedure, or new arguments that could not have been raised at the time of the hearing. (DSOF ¶ 20.) Plaintiff ax-gues that, in the appeal, she alleged improper procedure through Dr. Davisson’s hand-typing, unfair and selective treatment, and retaliation from the current litigation. (Id. ¶ 77.) However, these are the same ai-guments that she made in front of the SAC. (PSOF ¶¶ 23, 24) (“At [the SAC] hearing, Plaintiff complained of Davisson’s unprofessional breach of protocol, unfair selective treatment, and retaliation from instant (sic)
In order to avoid summary judgment, Plaintiff must show some evidence that her dismissal was made without any rational basis. Plaintiff has failed to present evidence establishing a genuine dispute for trial on the issue of plagiarism. Defendant’s Motion for Summary Judgment is granted as to Plaintiffs plagiarism claim in Count I but denied as to her bullying/harassment claim and Instagram claim in Count I.
Negligence
In Count II, Plaintiff alleges that Defendant was negligent in not responding to her complaints of harassment and bullying and not complying with its own policy in regards to her complaints. However, Plaintiff acknowledges that her negligence claim is barred, as she cannot seek purely economic loss under a negligence theory. Werblood v. Columbia Coll. of Chicago,
Damages
Defendant also asks for summary judgment on Plaintiffs ability to recover tuition and living expenses. Plaintiffs expert report on damages assumes an injury date of January 15, 2013; but it is not clear to what that date refers. Plaintiff started her Immersion Project in January 2013, but the first alleged injury came in April 2013. However, Plaintiff has explicitly conceded her claims as to the ADP and delayed internship are barred due to her not filing a timely grievance. The ADP and delayed internship are the cause of the extra tuition. Further, the “Agreement to Repay Expenses” is specifically tied to Plaintiffs expulsion from the program, which was a result of plagiarism and, as discussed above, was not arbitrary or capricious. (PSOF, Exh. 5, Exh. A.)
CONCLUSION
Defendant’s Motion for Summary Judgment [93] is granted in part and denied in part. The Motion is granted as to Plaintiffs plagiarism claim in Count I but denied as to her bullying/harassment claim and Instagram claim in Count I. The Motion is granted as to Count II and as to Plaintiffs alleged damages for tuition and living expenses.
Notes
. Whether or not the submission to Dr. Santiago-Rivera met the requisite factors for appeal consideration is disputed.
. Plaintiff concedes that her allegations of arbitrary and capricious conduct in regards to her complaints relating to Dr. Perez, her ADP, and the delay of her internship are barred due to her not filing a timely grievance.
. “45. Plaintiff admits that the student conduct of which she complains in paragraphs 10-16 of the Second Amended Complaint is conduct which is prohibited by the “Prohibition of Discrimination, Harassment and Retaliation” Policy found in the 2012-2013 Academic Catalogue and Student Handbook. Second Amended Complaint, ¶¶ 10-16; TCSPP’s First Set of Requests for Admission, No. 2; Plaintiff’s Second Amended Response to TCSPP’s First Set of Requests for Admission, Resp. No. 2.
Response; Jennifer DiPerna admits Defendant’s Statement 45.”
(DSOF ¶ 45.)
. The Handbook states that the student grievance procedure "may be used whenever a student believes that his/her rights have been violated by a member of the school community.” (Dkt. 96-1, p. 25) (emphasis added).
. Defendant states that Plaintiff, in her appeal, improperly objected to the number of members sitting on the SAC at the time of her hearing. Plaintiff does not raise this argument in her response; and, as Defendant points out, there is no evidence that nine members are required. To the extent that Plaintiff is speculating the result may have been different, speculation is not a basis for the denial of summary judgment. Springer v. Durflinger,
. The "Agreement to Repay Expenses” states: "That, as a result of [Plaintiff’s] expulsion from The University of Chicago (sic) counseling program, [Plaintiff] has incurred, and continues to incur, damages comprised of various expenses.”