JOHN DOE, Plaintiff, Appellant, v. BROWN UNIVERSITY, Defendant, Appellee.
No. 20-2023
United States Court of Appeals For the First Circuit
August 4, 2022
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. John J. McConnell, Jr., U.S. District Judge]
Before Kayatta and Howard, Circuit Judges, and Casper, District Judge.*
Susan Kaplan, with whom Kaplan Law and Sonja L. Deyoe were on brief, for appellant.
Steven M. Richard, with whom Nixon Peabody LLP was on brief, for appellee.
* Of the District of Massachusetts, sitting by designation.
A few months later, Jane filed a complaint against John with Brown‘s Office of Student Life, commencing a multi-year process leading to John‘s suspension from school, a suicide attempt, and, eventually, this lawsuit by John against Brown. For the reasons that follow, we affirm the grant of summary judgment dismissing John‘s federal claims, reverse the grant as to his state law claim for intentional infliction of emotional distress, and remand for further proceedings.
I.
Because this is an appeal from the grant of summary judgment, we recount the facts not as they necessarily are, but rather as a jury might reasonably find them to be in favor of John, the non-movant. See Brader v. Biogen Inc., 983 F.3d 39, 44 (1st Cir. 2020).
After Jane filed her complaint in November 2013, the Associate Dean of Student Life, Yolanda Castillo-Appollonio, informed John of the allegations against him and that the school would begin an investigation. John was also informed that he had a right to provide a list of witnesses and a written statement to assist the investigation and that he had a right to choose an advisor to help shepherd him through the process. Dean Castillo also issued a mutual no-contact order to both students.
Shortly after he was notified of the complaint, John met with Dean Castillo and expressed his desire to file a counter-complaint against Jane. Dean Castillo discouraged him from doing so. John recalls her telling him that she could not help him file a complaint and that she made it sound as if he would have to start a separate process only after the current complaint process concluded. This advice did not accord with Brown‘s rules, which permitted counter-complaints. Dean Castillo also determined that John‘s version of Jane‘s conduct did not rise to sexual assault in her eyes because John did not explicitly say “that there was no consent to the activity” or “that he said, stop doing that.” Dean Castillo did not file a complaint against Jane on John‘s behalf, nor did she initiate any investigation of Jane.
Brown eventually decided that, despite John‘s statement that Jane choked and bit him, John alone should be charged with three violations of its Code of Student Conduct. Brown charged John not only with sexual misconduct, but also with committing acts that could “be reasonably expected to result in physical harm to a person or persons” and “[m]isconduct that includes . . . violent physical force or injury.” Brown also charged John with illegal underage use of alcohol.
The school then held a hearing, after which the Student Conduct Board found John responsible for sexual misconduct “that involves non-consensual physical contact of a sexual nature” and for illegally drinking alcohol (which he had admitted). The Board did not find John responsible for either charge related to physical harm. As a sanction, Brown applied a “deferred suspension” that would expire at the end of the following academic year. Deferred
In the spring of 2014, during a conversation among sorority sisters regarding “certain men on campus,” Jane stated that John tried to touch her inappropriately, that he choked her, and that he was sexually aggressive, but she did not mention that she bit or choked him. Sally Roe was a part of that conversation. She told her sorority sisters that she and John had met at a party and consensually kissed. She explained that he wanted to take a shower with her and continued to encourage her (either verbally or physically, she couldn‘t remember) even after she said no. When she started to feel uncomfortable, she left “[a]nd that was the end of [their] interaction.”2
After hearing Sally‘s story, Jane sought “permission” to share it with a dean at Brown. Sally agreed, after which a dean “asked [Sally] to come in and make a formal complaint.”3 Sally then met with that dean in person. She prefaced the meeting by explaining that she was not formally complaining that John sexually assaulted her; rather, she was reporting him “more for [the] protection of others” because he had the “potential to have other negative interactions with women.” She thought her interaction “could potentially have led to sexual assault.” Sally testified that her view of John‘s character was based on the fact that he supposedly “continued to have uncomfortable interactions” with Jane.
Sally also filled out a “Campus Incident Complaint Form.” On that form, she alleged that in October 2013 “a boy that [she] was with tried to force [her] to have a shower with him.” She explained that she had consensually kissed the boy, but, after he tried to take a shower with her, she “promptly left and told him [she] wasn‘t comfortable.” Sally also asked for a no-contact order to be put in place.
Upon receiving the written complaint, Dean Castillo -- who was not the dean who initially met with Sally -- repeatedly sought to meet with her to confirm that John was the person against whom she had filed a formal complaint. Sally was initially nonresponsive, but eventually told Dean Castillo that she requested no “serious action” and had in fact “felt forced to report.” The day after Sally responded, May 7, 2014, the Office of Student Life nevertheless sent John three letters: The first informed him that someone had filed a complaint against him for actions that could be considered “[s]exual [m]isconduct that involves non-consensual physical contact of a sexual nature” and/or “[s]ubjecting another person . . . to abusive, threatening, intimidating, or harassing actions.” The second letter informed him that he and Sally should have no contact. And the third ordered him removed from campus for an indefinite period of time, “effective
Dean Maria Suarez -- who was the Associate Director of Brown‘s Psychological Services -- and Dean Castillo met with John that day to explain his removal. When Dean Suarez told John that he had been accused of sexual assault again, he became distraught and expressed suicidal thoughts. He fell to the floor, rolled into a ball, and cried. Both Dean Suarez and Dean Castillo testified that they found John‘s response extreme. They permitted him to remain on campus to finish his finals (the letter came in the middle of finals week), but he was required to immediately leave campus once his last exam was over.
In light of John‘s response, Dean Suarez brought John to the Brown University Counseling and Psychological Services (CAPS) for an emergency crisis evaluation. The doctor who evaluated him at CAPS was concerned and recommended hospitalization, which John rejected. Because the doctor did not feel that John‘s presentation “rose to the level of an involuntary hospitalization,” she made a plan with John on what to do if he had any further suicidal ideation, and she scheduled a follow-up appointment with him. John went back to CAPS at least twice more before he was required to leave campus after his final exam the following week.
Over the summer, Dean Castillo reached out to Sally three more times asking her to meet about the incident. Sally did not respond. Throughout that summer, John and his mother repeatedly contacted school officials asking for updates on the investigation and his suspension. The University gave little information in return. By August, Vice President Margaret Klawunn, prompted by an email from John, decided that Brown had to “wrap this up so that [John] can come back for the fall” if Sally was not going to pursue the complaint. On August 7, Dean Castillo informed John by email that Brown was “lifting the emergency removal” and that he would “be able to resume classes and all activities for the upcoming fall [2014] semester.” She also explained that, although they were closing this complaint for now, the school could “choose to proceed at a later time” if it received more information.
The fall semester did not go well for John. He had trouble attending classes and by late October was told by one professor not to come back to class. That led John to again seek crisis help at CAPS, which resulted in a referral for a psychiatric evaluation that occurred the following day. He reported sleeping sixteen hours a day, feeling anxious about the state of his family due to the second accusation, having difficulty in his interactions with women, having trouble managing anger, binge-drinking, and smoking marijuana daily. He was diagnosed with Major Depressive Disorder and was prescribed antidepressant medication.
A day later, after smoking marijuana with some friends, John dove onto the windshield of a truck as it was slowing to a stop. He was taken to Rhode Island Hospital, where he was given an Initial Psychiatric Evaluation. He explained during the evaluation that he had been “ruminating on the charges against him and convinced himself he could be guilty.” He maintained that he was not guilty, but he explained that those thoughts triggered “a panic attack,” which caused “an impulsive urge to stop the panic attack.” He remained in the psychiatric ward of Rhode Island Hospital for four days.
Upon discharge, John met with Dr. Jackie Twitchell from CAPS for a post-hospitalization evaluation. He explained to
After the meeting with John, Dr. Twitchell told Dean Suarez that John was not an immediate threat to himself or others but that she recommended intensive treatment. She told Dean Suarez that she did not discuss with John whether he could stay on campus. Dean Suarez then met with John about his hospitalization. Afterward, Dean Suarez and Dr. Twitchell spoke again. Dean Suarez stated that “she could not put him on mandatory medical leave” and that “he was not willing to go voluntarily.” She also expressed that she thought he displayed narcissistic traits and was unrealistic about his ability to “pull up his academics” and play lacrosse.
Dean Suarez then told Dr. Twitchell that she and Vice President Klawunn were planning to meet with John that evening -- just hours after he was released from the hospital -- to tell him that Jane had newly alleged that he had violated the still extant no-contact order,4 that he would therefore have to move out of his housing in his lacrosse fraternity based solely on those uninvestigated allegations,5 and that there would be new conduct charges filed against him for underage drug use and for the damage to the truck he threw himself in front of. Dr. Twitchell “expressed [her] concern for [John‘s] safety if these charges were brought against him the same night that he was discharged from the hospital and asked that this be delayed in light of his recent suicide attempt.” Dean Suarez rejected the advice, saying that they had to act that evening because John could not return to his room in light of the new (though, by this point, over a week old) allegations by Jane that John had violated the no-contact order. They then “discussed how much he should know up front and how much should be mediated given his fragile state.” Dean Suarez also
said that she would make sure that John‘s mother stayed with him that night. Dr. Twitchell “made it clear that CAPS would be available
Despite Dr. Twitchell‘s warning, Dean Suarez and Vice President Klawunn went ahead with the meeting. Accompanied by his mother, John attended. Without first ascertaining what John was intending to do regarding medical leave, the two Brown University officials told John that if he did not voluntarily go on leave, he would face a litany of consequences. They first threatened him with two additional conduct charges (for vandalism of the truck he jumped in front of and for the alleged violations of his no-contact order with Jane). They told him that he would be required to pay for the damage to the truck. They said that he would be immediately removed from his on-campus housing based on Jane‘s new no-contact allegations. Finally, they threatened to revive Sally‘s complaint (even though there was no new information since Sally declined to press forward). As Dr. Twitchell predicted, John had an extreme reaction to this litany of threats. He jumped from his seat and cried, “Do you just want me out of here?” His mother intervened and said, “Enough! This is enough! You have traumatized him enough! And you have traumatized me!”
Relenting to the threats, John began voluntary medical leave, effective November 5, 2014, for two full semesters. John‘s psychological expert -- whom Brown did not move to exclude below even while seeking to strike his expert on damages -- concluded that “the mandate that [John] be removed from the Brown campus for a year of purported medical leave without any known clinical basis for such a decision” -- that is, the result of the meeting with Dean Suarez and Vice President Kulwann -- “caused overwhelming psychological damage in [John] that continues to reverberate in him to the present in many spheres of his life.” The expert also concluded that John “suffers from enormous, life-altering psychological harm in [the] aftermath” of “the manner in which Brown University conducted itself in managing the[] accusations against [John].” The manifestation of that harm includes “Persistent Depressive Disorder,” which “is marked by pervasively depressed mood, markedly diminished energy and motivation, hypersomnia, hypophagia, diminished libido, anhedonia, hyperirritability, feelings of helplessness, and feelings of hopelessness.”
In the summer of 2015, John applied for readmission to Brown for the fall semester. His application included letters by a clinical psychologist who concluded that he was “ready to be reintegrated into the Brown community, given his ongoing positive mental state.” Brown, however, denied his application, stating that it “need[ed] to see a longer period of sustained stability.” John‘s father then emailed Brown‘s president to complain that he believed John had been and was continuing to be discriminated against on the basis of race. John also appealed the decision though regular channels and provided supplemental information, including various letters of support. Brown reversed course and permitted John to return to school for the fall 2015 semester.
In September 2015, shortly after the semester began, Jane wrote to Dean Castillo to express her concern that she saw John on campus even though she had been told he was not going to be there until the spring, if at all. Dean Castillo confirmed that John was on campus and apologized for not warning Jane because she thought Jane was going to be off campus that semester. The record then falls silent from the beginning of the fall 2015 to the middle of the spring 2016.
In April 2016, Jane, who herself was on medical leave, again emailed Dean Castillo
John objected, explaining that he had been given a no contact order against Jane, that it seemed to have been taken away without any process, and that Jane should also continue to be required to leave an event if she showed up and he was there. Dean Castillo rejected John‘s objections. She explained that the burden should be solely on John since he was found responsible for the conduct Jane complained of two years prior. She also explained that the University had updated its policies so that it was explicit that when a student is found responsible, the no-contact order automatically becomes unilateral. Dean Castillo told John that she was simply implementing that change in policy, even though it had been put in place after his hearing had ended and his chance to appeal had expired.
Over the next two years, John generally stayed out of trouble, and, in May 2018, he graduated from Brown.
II.
A year before he graduated, John filed this lawsuit in Rhode Island state court, alleging that Brown discriminated against him because of his race, gender, and disability, created a hostile educational environment, violated various contractual agreements and promised procedural protections, and intentionally inflicted emotional distress upon him. Brown removed the case to federal court and moved to dismiss. After giving John an opportunity to amend his complaint, the district court dismissed several of his claims. It held that John‘s gender-based claims under Title IX of the Civil Rights Act,
After nearly a year and a half of discovery, Brown moved for summary judgment. It argued primarily that John failed to uncover any racial or gender discrimination or harm. It also contended that it did not breach any contract related to John‘s suspension and that its conduct could not support a claim for intentional infliction of emotional harm. The district court granted Brown‘s motion across the board. See Doe v. Brown Univ., 505 F. Supp. 3d 65 (D.R.I. 2020).
On appeal, John only timely develops arguments in support of three causes of action. First, he claims that Brown committed gender discrimination in violation of Title IX by doggedly investigating Sally‘s claim against him, even though it did nothing to pursue his allegations against Jane. Second, he alleges that Brown engaged in race discrimination in connection with a whole series of events beginning with its treatment of Jane‘s complaint, all in violation of Title VI of the Civil Rights Act,
John‘s reply brief presumes that he also is challenging the dismissal of claims based on maintaining a hostile environment and a claim alleging a violation of Title IX by selectively enforcing rules against him as compared to Jane. His opening brief, however, developed no substantial argument as to these claims. Rather, he merely set out -- in a section entitled “Race Discrimination” -- his version of how Jane assaulted him and later harassed him without connecting those facts to the elements of a sex-based discrimination claim or a sex-based hostile educational environment claim. He passingly averred in a footnote that “the arguments in this section regarding race could equally apply to a gender-bias analysis” under RICRA, but such attempts to bootstrap argumentation “in a perfunctory manner . . . are deemed waived,” United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). He failed even to make a similar attempt for his federal-law claims. And John did not mention (much less contest) in his opening brief the district court‘s application of the three-year statute of limitations to his selective-enforcement claim regarding Brown‘s handling of Jane‘s complaint. His cursory attempts to revive these claims in reply are both too little and too late. See id.; Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 299 (1st Cir. 2000) (“[I]ssues advanced for the first time in an appellant‘s reply brief are deemed waived.“).
John has also not advanced on appeal any claim that Brown‘s action in suspending him breached any contract between Brown and its students. Compare Doe v. Trs. of Bos. Coll., 892 F.3d 67, 80–89 (1st Cir. 2018). Nor is Brown subject to the due-process constraints that apply to state-run schools. Compare Haidak v. Univ. of Mass.-Amherst, 933 F.3d 56, 65 (1st Cir. 2019) (“[A] student facing expulsion or suspension from a public educational institution is entitled to the protections of due process.” (alteration in original) (quoting Gorman v. Univ. of R.I., 837 F.2d 7, 12 (1st Cir. 1988)))).
We therefore consider only the three claims first mentioned above: (1) that Brown selectively enforced its Code of Student Conduct against John in response to Sally‘s complaint because he is male, (2) that Brown discriminated against him on account of his race throughout its handling of the allegations made by Jane and Sally, and (3) that Brown officials intentionally caused him severe emotional distress. We review the grant of summary judgment de
III.
We turn first to John‘s claim that Brown discriminated against him by selectively enforcing its policies against him as a male student. John offers two reasons that he says could support a jury‘s finding that Brown selectively enforced its rules and procedures due to his gender.
First, he contends that Brown customarily wields its investigation and prosecutorial resources very disproportionately against males, pointing out that “all students accused of sexual misconduct at Brown were male” during the relevant period. But the same could likely be said of any institution or workplace that accepts similar complaints: More women lodge complaints of sexual misconduct by men than vice versa. See The Women‘s Initiative, Gender Matters: Women Disproportionately Report Sexual Harassment in Male-Dominated Industries, Center for American Progress (Aug. 6, 2018), https://www.americanprogress.org/article/gender-matters/ (aggregating EEOC data regarding workplace sexual harassment filings from 2010 through 2015 that show that, “in every industry, women have higher rates of reporting sexual harassment than men“). Such proof, without more, hardly shows that the recipient of these complaints is responsible for the disparate distribution. See Doe v. Univ. of Denver, 952 F.3d 1182, 1194 (10th Cir. 2020) (“In Title IX challenges to sexual-misconduct proceedings, however, the putative nondiscriminatory causes of disparity -- the gender makeup of sexual-assault perpetrators, victims, and reporters -- are almost completely beyond the control of the school.“).
Second, John‘s alternative argument is a so-called “comparator” argument, through which a plaintiff can prove intent to discriminate based on “evidence of past treatment toward others similarly situated.” Dartmouth Rev. v. Dartmouth Coll., 889 F.2d 13, 19 (1st Cir. 1989), overruled on other grounds by Educadores Puertorriqueños en Acción v. Hernández, 367 F.3d 61 (1st Cir. 2004). John contrasts the manner in which Brown brushed off his claim that Jane bit and choked him during their alleyway encounter
with its Javert-like pursuit of Sally‘s withdrawn claim.8 For comparator proof to raise a red flag that the direct evidence does not already raise, the two “incidents’ circumstances [must] be ‘reasonably comparable‘” and “the nature of the infraction and knowledge of the evidence by college officials [need be] sufficiently similar to support a finding of facial inconsistency.” Id. (quoting Albert v. Carovano, 851 F.2d 561, 573–74 (2d Cir. 1988) (en banc)). “The test is whether a prudent person, looking objectively at the incidents, would think them roughly equivalent and the protagonists similarly situated.” Id. Although “[e]xact correlation is neither likely nor necessary,” “the cases must be fair congeners.” Id. “In other words, apples should be compared to apples.” Id.
By the time Sally filed her complaint, John had already been found responsible for sexual misconduct under Brown‘s Code of Student Conduct. It is rational for an administrator, upon receiving a sexual-assault
IV.
We consider next John‘s race-based claims. Brown concedes that the
To succeed on his race-based claims, John must show, among other things, that Brown acted with discriminatory intent. Goodman v. Bowdoin Coll., 380 F.3d 33, 43 (1st Cir. 2004) (noting that “direct or circumstantial evidence of racial animus” is “a necessary component” of both
All that being said, there is no evidence that would allow a reasonable jury to conclude that Brown‘s persecution of John was on account of his race. John points to no direct evidence of racial animus. The only person who even mentioned race was John‘s father, who suggested to Brown‘s president that racial discrimination was a possible motivation for Brown‘s June 2015 denial of John‘s request for readmission. Less than a week after that mention of race -- and after he submitted supplemental materials responding to the reasons for the initial denial -- John was readmitted. For obvious reasons, we are loath to say that such a chronology ending in John‘s request being granted evidences racial animus by Brown. To do so would create a disincentive to provide an accommodation whenever an accusation of discrimination is made.
Without direct evidence of racial discrimination, John is left to argue that the reasons Brown has given for treating John adversely are pretextual.9
Over the whole saga of Brown‘s interactions with John, Brown has consistently posited an overarching reason for its treatment of John: the complaints from Jane and Sally. There is nothing in the record to suggest that that stated reason was a sham designed to cover up a racial motive. In theory, that leaves open the possibility that Brown acted with even more zeal and unfairness in handling those complaints against John than it would have against a white male student. But John presents zero evidence of that.
In so stating, we acknowledge that sexual relations have often provided the context for invidious racial discrimination and noxious stereotypes. See, e.g., FBI, History: Emmett Till, https://www.fbi.gov/history/famous-cases/emmett-till. But when a university has prosecuted dozens of male students for infractions of its rules that attempt to regulate sexual conduct on campus, and not one iota of evidence has been produced suggesting that Brown pursued white men with either less zeal or more fairness than was manifest in its treatment of John, a jury cannot simply assume that race was a factor. To rule otherwise would be to say that every charge of sexual misconduct against any African-American student would, without more, support a trial on a race-discrimination claim.
V.
Finally, we consider John‘s state-law claim that Brown intentionally inflicted emotional distress upon him. To create liability for intentional infliction of emotional distress in Rhode Island, “(1) the conduct must be intentional or in reckless disregard of the probability of causing emotional distress, (2) the conduct must be extreme and outrageous, (3) there must be a causal connection between the wrongful conduct and the emotional distress, and (4) the emotional distress in question must be severe.” Gross v. Pare, 185 A.3d 1242, 1246 (R.I.), as corrected (Aug. 16, 2018) (emphasis removed) (quoting Swerdlick v. Koch, 721 A.2d 849, 862 (R.I. 1998)). Moreover, as one component of the severity requirement, Rhode Island requires plaintiffs to show some “physical symptomatology resulting from the alleged improper conduct.” Vallinoto v. DiSandro, 688 A.2d 830, 838 (R.I. 1997) (citing Reilly v. United States, 547 A.2d 894, 898 (R.I. 1988)).
On appeal, John‘s tort claim focuses largely (but not exclusively) on the post-hospitalization meeting in which Dean Suarez and Vice President Klawunn threatened him with additional disciplinary charges and suspended him from campus effective immediately, all on the basis of uninvestigated claims that he violated the no-contact order with Jane. The district court concluded that the administrators’ actions in this meeting could not be the basis for an intentional infliction of emotional distress claim because “[c]ourts must be ‘chary about interfering with academic and disciplinary decisions made by private colleges and universities.‘” Brown Univ., 505 F. Supp. 3d at 82 (quoting Schaer v. Brandeis Univ., 735 N.E.2d 373, 381 (Mass. 2000)). It recognized that “the second investigation understandably impacted John negatively,” but concluded that “there is no evidence that would allow a jury to reasonably conclude that Brown‘s conduct was so outrageous or so extreme” for liability to attach. Id. We disagree.
We start with the second element of this tort: Whether a jury could find Brown‘s actions extreme and outrageous. “In assessing whether conduct is extreme and outrageous, Rhode Island courts have used three factors: 1) the conduct itself; 2) the particular relationship of the parties; and 3) the known or knowable susceptibility of the plaintiff to the emotional injury.” Marques v. Fitzgerald, 99 F.3d 1, 7 n.12 (1st Cir. 1996). The Rhode Island Supreme Court, adopting the Second Restatement of Torts standard, requires a defendant‘s conduct to be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Swerdlick, 721 A.2d at 863 (emphasis removed) (quoting Restatement (Second) of Torts § 46 cmt.d (1965)). In other words, “the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!‘” Id. (quoting Restatement (Second) of Torts § 46 cmt.d). Although this is a “very high standard,” Hoffman v. Davenport-Metcalf, 851 A.2d 1083, 1089 (R.I. 2004), for several reasons, as combined, a jury could find this standard satisfied by Brown‘s conduct.
First, the parties’ relationship required at least some heightened solicitude by Brown. The Restatement states that “[t]he extreme and outrageous character of the conduct may arise from an abuse by the actor of a position, or a relation with the other, which gives him actual or apparent authority over the other, or power to affect his interests.” Restatement (Second) of Torts § 46 cmt.e. Discussing this factor, a member of our court once found that it naturally applies to the university-student relationship. See Russell v. Salve Regina Coll., 649 F. Supp. 391, 402 (D.R.I. 1986) (Selya, J.) (Russell I); see also Russell v. Salve Regina Coll., 890 F.2d 484, 487 (1st Cir. 1989) (Russell II) (acknowledging that the school relationship to a student is an important factor to consider, despite affirming a directed verdict for the school), rev‘d on other grounds, 499 U.S. 225 (1991); Restatement (Second) of Torts § 46 cmt.e (noting that “school authorities . . . have been held liable for extreme abuse of their positions“). This is because a “student stands in a particularly vulnerable relationship vis-a-vis the university, the administration, and the faculty.” Russell I, 649 F. Supp. at 402. Thus, a university can “fairly be expected” to act “maturely -- and even with some tenderness and solicitude -- toward” its students. Id.
Second, it is quite clear from the record that Dean Suarez and Vice President Klawunn were aware of John‘s enhanced susceptibility to extreme emotional distress. See Russell II, 890 F.2d at 487 (explaining that “knowledge of plaintiff‘s special sensitivities” is an element of the claim and that the “school officials knew very quicky that Russell wanted badly to become a nurse and that she was easily traumatized by comments about her weight“); see also Restatement (Second) of Torts § 46 cmt.f (“The extreme and outrageous character of the conduct may arise from the actor‘s knowledge that the other is peculiarly susceptible to emotional distress.“). Dean Suarez participated in a prior disciplinary meeting with John where his emotional reaction was so strong that it prompted
Third, the meeting itself did not comport with the reason given for its supposed urgency. If it were urgent to tell John he was suspended because of Jane‘s new, facially dubious and seemingly trivial allegations, they simply had to tell him that. Instead, or so a jury might find, they attempted to coerce him into withdrawing by piling on threatened claims that need not have been advanced that evening. Jurors might reasonably ask, why threaten John with reopening the Sally complaint and with charging him for damage to the truck? Brown has made no attempt to argue why those matters could not have been delayed, given its administrators’ knowledge of John‘s mental state and warning from his doctor. A jury could -- but need not -- find that this piling on of charges that evening while John was obviously vulnerable went beyond all bounds of decency.
Finally, we agree in theory but dispute in application the dissent‘s concern that Brown cannot be liable for intentional infliction of emotional distress if it did “no more than to insist upon [its] . . . legal rights in a permissible way,” even if it were “well aware that such insistence is certain to cause emotional distress.” Norton v. McOsker, 407 F.3d 501, 511 (1st Cir. 2005) (internal citations and quotation marks omitted).
To start, jurors might well disagree with our dissenting colleague that Brown was entitled to immediately remove John from campus based on Jane‘s unconfirmed, dubious allegations of no-contact order violations or that the Brown officials were acting in good faith in threatening to reopen Sally‘s complaint. Recall, Dean Castillo testified that the typical process for dealing with no-contact order accusations did not involve immediate suspension; rather, the school was to begin with an instructional conversation with the accused student regarding the parameters of the order. See n.5, supra. If the action persisted, the student was entitled to a hearing. Id. Brown forwent any process here. And, as the dissent acknowledges, Brown had informed John that it could reopen Sally‘s complaint only if it “obtain[ed] additional information relevant to the matter,” yet Brown officials threatened to reopen Sally‘s complaint despite having no new information.
Further, the legal entitlement to act with impunity only applies when the defendant asserts its rights “in a permissible way” and does “no more.” Norton, 407 F.3d at 510–11. The manner in which the action is taken is still subject to tort-law limitations. See Clift v. Narragansett Television L.P., 688 A.2d 805, 813 (R.I. 1996) (acknowledging that, even though simply insisting on your legal rights “could not ordinarily lead to liability,” a plaintiff could show “more” to “defeat the privilege and state a claim” (emphasis added) (quoting Howell v. N.Y. Post Co., 612 N.E.2d 699, 705 (N.Y. 1993))); Champlin v. Washington Tr. Co., 478 A.2d 985, 989 (R.I. 1984) (“[A] creditor or his agent is privileged to use a number of tactics to collect a debt, even though those tactics may cause the debtor to suffer emotional distress,” and “the creditor should be held accountable only if those tactics are extreme and outrageous.“); see also Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 46 cmt.e (2012) (“Although an actor exercising legal rights is not liable . . . merely for exercising those rights, the actor is not immunized from liability if the conduct goes so far beyond what is necessary to exercise the right that it is extreme and outrageous.“).
Moving on, we also conclude that there are triable issues regarding the first element of the tort, that is, whether Dean Suarez and Vice President Klawunn “inten[ded]” or acted “in reckless disregard of the probability of causing emotional distress.” Gross, 185 A.3d at 1246 (quoting Swerdlick, 721 A.2d at 862). Proceeding with the coercive attempt in the face of the physician‘s warning could certainly be seen as evidencing a reckless disregard for the distress likely to be caused.
Our decision here is bolstered by comparison to another case where we found the defendant “crossed” “the requisite ‘threshold of conduct‘” under Rhode Island law, such that the question was appropriate for a jury. See Borden v. Paul Revere Life Ins. Co., 935 F.2d 370, 381 (1st Cir. 1991) (quoting Elias v. Youngken, 493 A.2d 158, 164 (R.I. 1985)). There, an insurer -- after learning that the insured misrepresented his medical history and employment -- downgraded the policy and delayed benefit payments to induce the insured to sign a new contract agreeing to the switch. Id. at 380–81. After detailing the unsavory tactics the insurer used, we concluded that “a rational jury could well have thought that a large, moneyed corporation preyed mercilessly on a disabled individual‘s physical and mental condition by withholding and delaying benefit payments and by lying to him, in order to coerce him into surrendering his insurance coverage through age 65 and accepting an inferior replacement policy.” Id. at 381. We think a jury is at least as able to find the Brown officials crossed the line here as well.
Brown advances no argument on appeal that a jury could not find in John‘s favor on the remaining two elements of the tort: causation and severity.10 In any event, the chronology and the conclusions of John‘s psychological expert regarding causation and the manifestations of John‘s distress, summarized above, would seem to provide at least the minimal degree of support required to get over the Rule 56 hurdle. See Castellucci v. Battista, 847 A.2d 243, 249 (R.I. 2004) (relying on a psychiatrist‘s opinion connecting the event at issue to plaintiff‘s “posttraumatic stress disorder, which continued to traumatize him and compromise his ability to function or sleep” to conclude that there was “clear evidence of causation and physical symptomatology“).
For these reasons, we affirm in part, reverse in part, and remand for proceedings not inconsistent with this opinion.11 The parties will bear their own costs.
- Dissenting Opinion Follows -
CASPER, District Judge, dissenting. I respectfully dissent from one aspect of the majority‘s opinion. I would affirm the district court‘s ruling on summary judgment in all respects, including that regarding John‘s intentional infliction of emotional distress (“IIED“) claim. The Circuit has recognized that ”Champlin [v. Washington Trust Co., 478 A.2d 985, 990 (R.I. 1984)] appeared to treat the question whether conduct is sufficiently extreme and outrageous as one of law,” Fudge v. Penthouse Int‘l, 840 F.2d 1012, 1021 (1st Cir. 1988), and summary judgment is warranted where “the circumstances described fall far short of that level of conduct that could be termed either ‘extreme’ or ‘outrageous.‘” Elias, 493 A.2d at 164 cited in Borden, 935 F.2d at 381 (ruling that the IIED high threshold had been crossed where the insurance company, with “no entitlement to downgrade the policy,” did so, delayed benefit payments to the insured and then lied to him about the difference between the original policy and the downgraded one). Even confining my analysis to the second element of the claim -- whether a jury could find Brown‘s actions, particularly as to the October 28th post-hospitalization meeting, extreme and outrageous -- the grant of summary judgment in the university‘s favor was warranted.
As to the Marques factors cited by the majority for determining whether conduct is extreme and outrageous, a jury would have before it the college-student relationship between the parties (which was reflected not just in the October 28th meeting, but also in the provision of CAPS counseling and academic advising and prior contact with John‘s mother) and that John had exhibited emotional distress prior to the meeting of which the Brown officials were aware. It, however, would also be left with Brown‘s conduct of the October 28th meeting, the event that, now on appeal, is the centerpiece of John‘s IIED claim. During this meeting called by Dean Suarez and Vice President Klawunn, John was not alone but accompanied by his mother. At the time of this meeting, it was undisputed that, only two months into the semester of his sophomore year, John was not doing well academically, was exhibiting emotional distress and behavior that resulted in self-harm and property damage warranting psychiatric evaluation and hospitalization, and now also had allegations of violating the no-contact order against him by Jane. Given these circumstances, it is not surprising (and undisputed) that John was considering a leave before this meeting and Dean Suarez and the Vice President were as well. Even viewing the record in the light most favorable to John that Brown threatened John with additional conduct charges (related to substance abuse and damage to the truck), or action on Jane‘s new no-contact allegations or revisiting Sally‘s complaint,12 these were
Accordingly, I would affirm the district court‘s grant of summary judgment for Brown on this claim as well.