Doe v. Brown University ( 2022 )

United States Court of Appeals
For the First Circuit
No. 20-2023
JOHN DOE,
Plaintiff, Appellant,
v.
BROWN UNIVERSITY,
Defendant, Appellee.
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.
August 4, 2022
* Of the District of Massachusetts, sitting by designation.
KAYATTA, Circuit Judge. Shortly after he began his
freshman year at Brown University, John Doe, an African-American
man, had a brief encounter with Jane Doe, a white woman.1 Their
stories of what happened differ slightly in emphasis but are
generally consistent. They met at a bar and both decided to move
to an outside patio. There, they kissed. The pair then moved to
a small alleyway behind the building -- the record is unclear
whether Jane or John initiated the relocation to the more private
spot. According to Jane (as expressed in her formal complaint
about the incident), John became more aggressive and repeatedly
tried to lift her dress without her express permission. According
to John, Jane was aggressive throughout the encounter, choking
him, biting his lip, and telling him, "Stop, I make the rules."
Jane admitted going "for his neck" and saying, "Stop, I make the
rules here." John said that, feeling uncomfortable, he ended the
interaction and walked away.
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
1 Following the lead of the district court and the parties,
we refer to the students involved by pseudonyms.
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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
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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
suspension is somewhat akin to probation. It provides the student
"the opportunity to demonstrate the ability to abide by the
community's expectations of behavior," but it also means that any
new allegations "will receive greater scrutiny," and it
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"increase[s] the likelihood" of "more serious outcomes,"
"including separation from the University." Jane appealed this
decision because she believed the sanction was not severe enough.
Brown denied the appeal. John later testified that, despite his
belief that Brown reached the wrong result, he did not appeal
because he "was put on probation" and not "suspended or expelled."
He "was ready to move on."
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
2 John's interaction with Sally happened after the incident
with Jane but before Jane filed her complaint.
3 Sally testified that she couldn't remember if she contacted
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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
the dean first or if the dean contacted her.
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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 immediately." To justify this removal, Brown decided
to treat John "a danger to [himself] or the immediate well-being
of the University community."
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)
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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
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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
Dr. Twitchell the same thoughts he had expressed at the hospital
that led to his suicide attempt. Dr. Twitchell noted that John
"want[ed] to stay at Brown" and "hope[d] he [could] catch up on
his studies."
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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
4As described by Jane, the first two incidents occurred at
Brown-associated events hosted at an off-campus local bar. Jane
alleged that when John saw Jane "he moved away from [her] inside."
She stated that "[w]hile he would move away from [her]" each time
they ended up together, she felt "the need to leave." (For the
second event at the same location, Jane indicated that John was
"less responsive" in moving away from her than the first time.)
The third incident occurred at a "Greek council meeting" Jane
was attending as a board member. She complained that John "walked
in" and "hung out for a minute or so before leaving."
In the fourth interaction, Jane described John drunkenly
entering a room at another bar off campus. When Jane's friend
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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
asked him to leave because Jane was there, he left. Ten minutes
later, he "poked his head in and looked around," saw Jane, and
"left the room again."
In the final incident, Jane described being outside a fast-
food restaurant on the phone when John entered the restaurant with
a friend. She "then entered [the restaurant] to get [her] own
dinner, as he was at the register." She "had planned on eating
there," but "felt the need to take [her] dinner to go." There is
no allegation he purposefully ate dinner at the restaurant to cause
her to leave.
5 According to Dean Castillo, the typical process for dealing
with no-contact order accusations did not involve immediate
suspension. Instead, the first step was to have an instructional
conversation with the accused student regarding the parameters of
the order. If further action were required, Brown would hold a
hearing. A hearing was reserved for "persistent and repeated"
violations that had been addressed but for which there had been no
change or for "significant and clearly intentional" violations,
such as "banging on [the person's] door."
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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 to support [John] if contacted [that night] or in the
future."
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
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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
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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 to let her know that she would be
visiting Brown for a weekend and that she was concerned that John
would not "respect" the no-contact order that was still in effect
two years after he was found responsible for their alleyway
encounter. Dean Castillo thereupon "update[d]" the no-contact
order so that it became unilateral rather than mutual; in other
words, it became solely John's responsibility to stay away from
Jane rather than a shared responsibility to avoid each other.
John objected, explaining that he had been given a no-
contact order against Jane, that it seemed to have been taken away
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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, 20 U.S.C. § 1681 et seq.,
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regarding Jane's complaint were filed outside Rhode Island's
three-year statute of limitations for personal injury. Doe v.
Brown Univ., 327 F. Supp. 3d 397, 407, 410 (D.R.I. 2018) (applying
R.I. Gen. Laws § 9-1-14(b) to John's Title IX claims).6 The court
also dismissed John's Title IX "erroneous outcome" claim as to
Sally's complaint because Brown dropped its investigation, id. at
412, his state-law disability claim because he failed to plead any
denied accommodations, id. at 413–14, and all but one of his
contract claims -- the one related to his May 2014 suspension --
for failure to state a claim, id. at 415–18. The court permitted
the rest of his claims to go forward.
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).
6 We have not yet decided which statute of limitations is
applicable to Title IX claims, but district courts within our
purview have held that the forum state's limitations period for
personal-injury claims applies. See, e.g., Doe v. Lincoln-Sudbury
Reg'l Sch. Comm., No. 20-cv-11564, 2021 WL 3847985, at *6 (D. Mass.
Aug. 27, 2021); Lakshman v. Univ. of Me. Sys., 328 F. Supp. 2d 92,
116 (D. Me. 2004). No one challenges the district court on this
score.
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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, 42 U.S.C. § 2000d et seq.; 42 U.S.C. § 1981; and the Rhode
Island Civil Rights Act (RICRA), R.I. Gen. Laws § 42-112-1.7 And
he claims that Brown should be held liable for the tortious conduct
of its officials in intentionally causing him severe emotional
distress under Rhode Island common law.
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
7 Rhode Island courts look to federal law in construing their
analogous civil rights statutes, see Colman v. Faucher, 128 F.
Supp. 3d 487, 491 n.8 (D.R.I. 2015) (citing Casey v. Town of
Portsmouth, 861 A.2d 1032, 1037 (R.I. 2004)); accordingly, we need
determine only whether John's discrimination claims are sound
under federal law.
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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
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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 novo. Irobe v. U.S. Dep't of Agric., 890 F.3d
371, 377 (1st Cir. 2018).
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,
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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
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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 complaint, to treat someone who had
already been found responsible for sexual misconduct differently
than someone who had not. Indeed, Brown had so informed John in
8 We assume without deciding that Brown's handling of John's
allegations against Jane can be used as comparator evidence, even
though Dean Castillo's repudiation of those allegations occurred
outside of the statute-of-limitations period. See Flores v. City
of Westminster, 873 F.3d 739, 754 (9th Cir. 2017) (holding that
evidence regarding "appropriate comparators" was "properly
admissible" even though the events occurred outside the statute of
limitations).
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writing at the conclusion of the proceedings concerning Jane's
complaint: It explained that any new allegations "will receive
greater scrutiny" and "increase the likelihood" of "more serious
outcomes," "including separation from the University." So, we do
not see enough similarity to support a reasonable inference that
Brown's different treatment of the two accusations is due to the
gender of the accused. That conclusion, in turn, leaves John with
no support in this record for his claim of selective enforcement
based on gender.
IV.
We consider next John's race-based claims. Brown
concedes that the section 1981 claim is not time-barred in any
material respect. And while Brown does not so concede as to the
Title VI and RICRA race discrimination claims, our analysis of
these claims on the merits renders any difference in the applicable
limitations periods moot.
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 section 1981 and Title VI claims).
To make such a showing, John devotes a large portion of his brief
to chronicling all the ways he believes Brown treated him unfairly.
Viewing the evidence in a light favorable to John, as we must, a
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jury could certainly find that Brown persecuted John with
unreasonable zeal and, on occasion, with no fair process. A jury
could also find that the initial finding of fault was also
unreasonably used as a basis to allow Jane to use seemingly trivial
violations of the no-contact order to chase John out of all sorts
of campus events, with Brown itself twisting its own rules in aid
of Jane's efforts. See n.4, supra.
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
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John adversely are pretextual.9 Sometimes a plaintiff can generate
an inference of discriminatory animus by showing that the
defendant's stated reason for its actions is not only false, but
"a sham intended to cover up the [defendant's] real and unlawful
motive." Joseph v. Lincare, 989 F.3d 147, 160 (1st Cir. 2021)
(quoting Theidon v. Harvard Univ., 948 F.3d 477, 497 (1st Cir.
2020)).
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.
9 Our consideration of pretext is derived from a burden-
shifting framework the Supreme Court articulated in the context of
Title VII, employment-discrimination claims. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973). Although we
have held that the McDonnell Douglas framework applies to
section 1981 claims, Pina v. Children's Place, 740 F.3d 785, 796
(1st Cir. 2014), we have never so held for Title VI claims, see
Goodman v. Bowdoin Coll., 380 F.3d 33, 44–45 (1st Cir. 2004). The
parties, however, assume this framework applies to each of John's
race-based claims, and since it does not affect the outcome of
this case, we follow their lead. Cf. Trs. of Bos. Coll., 892 F.3d
at 91–92 (1st Cir. 2018) (applying the standard agreed to by the
parties).
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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
- 25 -
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
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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
- 27 -
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
- 28 -
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 her to immediately walk him to the campus
mental health center for an emergency evaluation. Dean Suarez and
Vice President Klawunn both knew that John had just been discharged
from the hospital that very day after a suicide attempt premised
on Brown's disciplinary actions against him. And, most strikingly,
Vice President Klawunn was warned by one of John's doctors that
she should postpone the meeting given John's fragile mental state.
At the very least, the doctor advised, they should only bring up
any matters that needed to be discussed that day (such as any
necessary immediate suspension from housing). A jury could
conclude from these facts that their subsequent conduct in
confronting John "become heartless, flagrant, and outrageous when
the[y] proceed[ed] in the face of such knowledge, where it would
not be so if [they] did not know." Restatement (Second) of Torts
§ 46 cmt.f.
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,
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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 Circ. 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;
- 30 -
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
- 31 -
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
- 32 -
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
Brown argued below that, although the October 2015 meeting
10
was contentious, "anything said or done cannot be causally linked
to John's distress because he and his mother had decided before
the meeting that he should take a leave from Brown to address his
physical and mental health." But this argument overlooks both the
record, which would support a finding that John was not resolved
to withdraw voluntarily, and the fact that if Brown were correct
then there would have been no need to have lodged the barrage of
threats.
- 33 -
ability to function or sleep" to conclude that there was "clear
evidence of causation and physical symptomatology").
VI.
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 -
11 We have left only one state-law claim in play, while
affirming judgment against John on all of his federal-law claims.
Had subject-matter jurisdiction been based solely on the presence
of federal questions, our decision would have required the district
court to decide whether to "retain or disclaim [supplemental]
jurisdiction over the remaining state law claim[]." Penobscot
Indian Nation v. Key Bank of Me., 112 F.3d 538, 564 (1st Cir.
1997). But John has also relied upon diversity jurisdiction,
alleging that he and Brown "are citizens of different states and
the amount in controversy exceeds $75,000."
- 34 -
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
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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 all actions that Brown could take. See
12 Brown had closed an investigation of Sally's complaint in
- 36 -
Norton v. McOsker, 407 F.3d 501, 511 (1st Cir. 2005) (affirming
summary judgment for defendant, noting that "[t]he actor is never
liable . . . where [he] has done no more than to insist upon
his . . . legal rights in a permissible way, even though he . . .
is well aware that such insistence is certain to cause emotional
distress" (internal citations and quotation marks omitted)). It
is not a free pass from liability to acknowledge that this
principle in Norton also applies where school administrators
pointedly lay out a range of adverse consequences in a difficult
meeting with John and his parent. As the district court
recognized, "[s]tudent disciplinary investigations and the face-
to-face meetings no doubt could cause a wide range of emotional
distress." The question for the jury, however, is whether Brown's
conduct was "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 and internal citation
omitted). On the record before this Court and in light of the
very high legal standard that applies, I respectfully submit that
a reasonable jury could not find for John on this claim.
August 2014 but had advised John at that time that "[i]f we obtain
additional information relevant to the matter we may choose to
proceed at a later time."
- 37 -
Accordingly, I would affirm the district court's grant of summary
judgment for Brown on this claim as well.
- 38 -