Doe v. Trustees of Boston College , 892 F.3d 67 ( 2018 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 16-2290
    JOHN DOE, MARY DOE, and JAMES DOE,
    Plaintiffs, Appellants,
    v.
    TRUSTEES OF BOSTON COLLEGE, PAUL J. CHEBATOR,
    CAROLE HUGHES, CATHERINE-MARY RIVERA,
    PATRICK J. KEATING, and BARBARA JONES,
    Defendants, Appellees.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Denise J. Casper, U.S. District Judge]
    Before
    Torruella, Selya, and Kayatta,
    Circuit Judges.
    Charles B. Wayne, with whom Matthew J. Iverson and DLA Piper
    LLP were on brief, for appellants.
    Daryl J. Lapp, with whom Elizabeth H. Kelly and Locke Lord
    LLP were on brief, for appellees.
    June 8, 2018
    TORRUELLA, Circuit Judge.             In October 2012, John Doe
    ("Doe") was accused of sexually assaulting a fellow Boston College
    student during an off-campus school event sponsored by a student
    organization.     Pursuant to its written policies and procedures on
    sexual assault, outlined in its 2012-2013 Student Guide (the
    "Student Guide"), and Conduct Board Procedure, Boston College held
    disciplinary proceedings against Doe.               After two days of hearings,
    an    Administrative      Hearing         Board    (the     "Board")        found    Doe
    responsible for the lesser offense of indecent assault and battery,
    and imposed several sanctions.             Doe filed an appeal of the Board's
    decision, but his request for appeal was denied by Boston College
    officials.      In 2014, at the request of Doe's parents, Boston
    College   conducted     an    independent         review    of       the   disciplinary
    proceedings.     The reviewer determined that the Board had properly
    followed the relevant procedures and that new evidence that Doe
    brought forth did not undercut the Board's finding.
    Seeking   compensatory        damages,      declaratory        relief,    a
    permanent      injunction,        and   expungement        of        the   disciplinary
    proceedings from his university records, Doe and his parents, James
    and   Mary,    (collectively       "the    Does")    filed       a    lawsuit   against
    Defendants     Trustees      of    Boston    College       (the       "University"     or
    "B.C."), and several B.C. officials.                 Following discovery, the
    parties filed cross-motions for summary judgment.                          The district
    -2-
    court held a hearing and subsequently entered summary judgment on
    all counts in the Defendants' favor.   This timely appeal followed.
    After careful review, we vacate in part and affirm in part.
    I. Background
    A. Factual History
    1. The Alleged Sexual Assault
    On October 20, 2012, Doe, a senior at Boston College,
    attended a school event on the SPIRIT OF BOSTON cruise ship in his
    capacity as a journalist for the school newspaper.       At around
    11:30p.m., Doe -- standing 6'4" tall and wearing a purple shirt -
    - danced his way across a heavily crowded dance floor to reach
    some of his friends.    While Doe was slowly moving through the
    crowd, a woman turned around and screamed at him.       The woman,
    "A.B.," later testified that at that time she felt a hand go up
    her dress and that "two fingers were forcibly inserted up into
    [her] anus."   After the screaming incident, Doe continued to move
    across the crowd until he reached his friends.         Soon after,
    security guards escorted Doe to a separate area on the ship, where
    he was required to stay until the ship returned to the pier.
    Massachusetts State Police arrested Doe once the ship docked, and
    released him on bail the following morning.   Forensic specialists
    took his clothes and several swabs from his hands, fingers, and
    fingernails as evidence.
    -3-
    The State Police arrested Doe based on the allegations
    made by A.B. to State Trooper David Walsh ("Trooper Walsh").
    According to the October 20, 2012 Arrest Report, A.B. stated to
    Trooper Walsh that "while she was dancing she felt a hand go up
    he[r] dress and penetrate her."                 She further stated that "she
    immediately turned around and identified/looked at the person who
    touched her."       While still at the pier, Trooper Walsh asked A.B.
    to   step   out    of   the    police     cruiser    and    identify    the   alleged
    wrongdoer.        A.B. identified Doe as the person who touched her.
    Betsy, A.B.'s friend and dance partner during the school event,
    did not see the alleged sexual assault, but mentioned to the state
    authorities that A.B. told her "that the tall male with brunette
    hair [and] purple buttoned down shirt stuck his fingers in between
    her legs."
    According        to   Doe,   however,    another    male    --    Boston
    College senior "J.K." -- crossed the dance floor in front of him
    as the alleged sexual assault occurred.                    Doe testified that, at
    the moment when A.B. screamed at him, J.K. turned to him and said,
    "Sorry, dude, that was my bad."             The day after Doe's arrest, J.K.
    texted some of Doe's friends asking whether Doe was "ok" and if
    Doe "got in trouble."
    -4-
    2. The Criminal Case
    The Commonwealth of Massachusetts filed an application
    for a criminal complaint against Doe, which the Boston Municipal
    Court issued on October 22, 2012.           The complaint charged Doe with
    indecent assault and battery.         He was arraigned that same day and
    pled not guilty.   In February 2013, the tests of the samples taken
    from Doe's hand were completed, showing that Doe's hands were
    negative for traces of blood.           The examiners did not test the
    samples for DNA, but preserved the swabs for possible DNA testing
    at a later date.       During discovery, Doe produced a copy of the
    surveillance   video    from    the   ship   that    had   been   forensically
    enhanced and analyzed.         In May 2014, the Commonwealth moved to
    dismiss the charges against Doe, and the court granted that motion.
    3. 2012 University Disciplinary Proceedings
    a. Boston College's Disciplinary Procedures
    During   the     relevant      time,      B.C.'s   written    policy
    governing the investigation and adjudication of sexual assault
    accusations consisted of: (1) Section Four of the Student Guide
    (titled Community Standards and Policies); (2) Section Five of the
    Student Guide (titled Student Conduct System); and (3) the Conduct
    Board Procedure.   The Office of the Dean of Students was tasked
    with "developing, disseminating, and upholding [the] behavioral
    standards that comprise the University Code of Student Conduct."
    -5-
    Additionally, "[t]he Student Conduct System [was] administered by
    the Vice President for Student Affairs through the Dean of Students
    and his/her staff."
    These documents provided certain rights to students
    facing disciplinary proceedings.              These rights included "access
    to a process through which to resolve deprivations of rights" and
    "a fair procedure which [was] appropriate to the circumstances."
    In the case of accusations of sexual harassment, sexual assault,
    or   sexual    misconduct,     the      school    conducted    a    pre-hearing
    investigation of the allegations, which included "a review of
    statements    obtained     from    either     party,   interviews     with    the
    complainant    and   the    accused     (if   identified),    interviews     with
    appropriate     witnesses,        and    a    review   of     other    relevant
    information."
    Pursuant to B.C.'s procedures, a disciplinary complaint
    with the school could have proceeded concurrently with any criminal
    action.   Still, the Office of the Dean of Students could have also
    decided to stay the disciplinary proceedings while the criminal
    matter was ongoing.        Furthermore, the Student Guide provided that
    a student may be summarily suspended for certain conduct, including
    sexual assault.      A summary suspension would have been followed,
    within a reasonable time, by a conduct hearing.
    -6-
    After a complaint was filed against a student, that
    student would meet with the Dean of Students or its designee to
    discuss the complaint.    During this meeting, the University would
    decide whether the complaint should "be kept open for a later
    resolution,   dropped,   resolved,     or   referred   to   an    appropriate
    hearing board."1    If the complaint was referred to a board, the
    accused student would be provided with a copy of the referral, the
    Conduct Board Procedure, a written notification of the time and
    location of the hearing, the names of all the parties charged, the
    alleged violation, and name of the complainant.
    Boston   College's    policies      also    provided     for     the
    composition of the Administrative Hearing Boards.                According to
    Section Five of the Student Guide, those boards were "composed of
    three administrators, one faculty member or academic administrator
    and one student."    All board members were trained by the Office
    of the Dean of Students.        The Dean of Students designated the
    board's   chairperson,   and   all   board   members    were     required   to
    "disclose any real or perceived conflict of interest between
    themselves and any party."
    The Student Guide and Conduct Board Procedures also
    detailed the hearing procedure.       During conduct hearings, both the
    1  Either the Student Conduct Board or the Administrative Hearing
    Board.
    -7-
    complainant and the accused student could have an advisor with
    them.2    Both parties were "entitled to bring witnesses to the
    hearing."     However, witnesses would be limited to those who could
    "speak to the facts of the incident which they ha[d] witnessed."
    The hearing would begin with the board's chairperson "reading the
    formal    charges   as    determined    by   the     Office   of   the   Dean   of
    Students."     Next the complainant would have the opportunity to
    read his or her incident report and further elaborate as needed.
    The accused would be given the opportunity to respond, but could
    remain silent if he or she elected.                All board members would be
    allowed to question both parties "on all matters relevant to the
    complaint."     At the hearing's conclusion, both parties would be
    afforded the "opportunity to make a final statement to the hearing
    board."
    Soon after the hearing, the board would meet in private
    to deliberate and "determine whether the accused [was] responsible
    or not for the charge(s), based upon a preponderance of the
    evidence."     The board could have reached one of the following
    determinations:     (1)    responsible;      (2)    not   responsible;    (3)   no
    finding; or (4) responsible for a lesser included charge.                 If the
    2  The advisors, however, were not allowed to address the hearing
    board, but would have been able to confer with the student at any
    point during the hearing.
    -8-
    board concluded that an accused student was "responsible," it could
    recommend sanctions including suspension or dismissal from the
    University.
    The University would then be required to send written
    notification of the board's determination to both parties within
    five days of the hearing.   Either party could appeal the board's
    determination on two possible grounds: (1) demonstrated lack of
    fairness during the hearing; or (2) production of new evidence
    that would likely change the result of the hearing.         Any appeal
    had to "be filed with the Dean [of Students] and the Vice President
    [for Student Affairs] within five business days after notification
    of the sanctions."    The Dean of Students and the Vice President
    for Student Affairs would assess the appeal petition, and if they
    determined that it required consideration, it would be referred to
    the University's Appeals Board.
    b. Disciplinary Proceeding Against Doe
    On the night of the alleged sexual assault, a B.C. police
    officer completed a Sexual Assault Notification Form describing
    A.B.'s allegations against Doe.         B.C. immediately placed Doe on
    summary suspension.     Doe's case was assigned to then Senior
    Associate Dean of Students, Carole Hughes ("Hughes"), who decided
    that the case should proceed to an administrative hearing board
    that would be convened within two weeks.      B.C.'s Associate General
    -9-
    Counsel confirmed that the administrative hearing board would also
    act as the investigative body in Doe's case.
    Hughes met with Doe and his parents on three occasions
    before the hearing.        While the parties dispute whether Hughes
    allowed Doe to tell his version of the events during the first
    meeting, on October 24, 2012, they agree that Doe told Hughes on
    at least one occasion that he did not commit the alleged sexual
    assault, and that this was a case of mistaken identity.               In that
    first meeting, Hughes informed Doe that he would be able to tell
    his account of the events to the hearing board.              Doe was provided
    with   the   notice   of   the   sexual   assault   charge    and   given   the
    procedures for the investigation and hearing, but could only review
    -- though not have a copy of -- A.B.'s statement during these
    meetings.
    Doe's hearing began on November 8, 2012.           The Board was
    comprised of the chairperson, Catherine-Mary Rivera ("Rivera"),
    two other administrators, a law professor, and a student from the
    undergraduate program.       The Board heard testimony from A.B., Doe,
    and three of Doe's friends who were on the ship on the night of
    the alleged sexual assault.         A.B.'s testimony mirrored her prior
    statements.      Doe denied having committed the sexual assault,
    produced the raw video surveillance from the dance floor of the
    ship, and testified about J.K.'s comment and subsequent text
    -10-
    messages.    Doe's friends testified that "they didn't see [Doe]
    bend down or do anything unusual."
    The   Board    adjourned,   and   the   hearing   resumed   on
    November 16, 2012.        On that day, both Betsy and J.K. testified.
    J.K. and his father had previously met with Hughes, who informed
    J.K. that he was required to attend the hearing, but was not being
    charged with anything, in an effort to put J.K. "at ease."          Betsy
    testified that she did not see the alleged sexual assault as it
    was taking place, and that Doe "stood out because he was tall" on
    the packed dance floor.        J.K. denied sexually assaulting A.B.,
    claimed he was not intoxicated, and said he never apologized to
    Doe or said anything along the lines of "Sorry, dude, my bad."
    The Board refused to let Doe's private investigator, Kevin Mullen,
    testify about a phone conversation he listened to between Doe and
    J.K., or about Mullen's own interview with J.K., because Mullen
    had not been a witness of the alleged sexual assault.            Finally,
    the Board also rejected Doe's request to stay proceedings in
    anticipation of the results of the forensic tests, which had not
    yet been completed by the State Police.        Doe maintained that this
    evidence would exonerate him.
    The Board deliberations took place at the end of the
    second day of hearings.       The Board failed to reach a decision on
    that day, a Friday, and decided to continue deliberations the
    -11-
    following week.    Over the weekend, Rivera told Hughes that the
    Board "was struggling" to reach a decision, and that as a result,
    "they were [considering] the possibility of a no finding."   Rivera
    then asked Hughes whether B.C. had ever issued a "no finding"
    determination before.   Hughes, in turn, contacted Paul Chebator
    ("Chebator"), then Dean of Students, who told Hughes that while
    B.C. had issued "no finding" determinations in the past, he
    "discourage[d] them."   Hughes conveyed this to Rivera prior to the
    Board's continuing deliberations on Monday, November 19.
    On November 21, 2012, the Board found Doe responsible
    for the lesser offense of indecent assault and battery.       Doe's
    sanctions included his immediate suspension until January 6, 2014,
    dismissal from Boston College student housing, and loss of senior
    week privileges.    Doe promptly appealed the Board's decision,
    arguing a lack of due process and citing the Board's refusal to
    wait for the results of the forensic tests.   Chebator and Patrick
    J. Keating ("Keating"), then Executive Vice President of B.C. and
    Interim Vice President for Student Affairs, with input from B.C.'s
    General Counsel, Joseph Herlihy ("Herlihy"), and Rivera, reviewed
    Doe's appeal and crafted a response denying his appeal.          On
    December 7, 2012, B.C. notified Doe that his appeal had been
    denied.
    -12-
    4. 2014 B.C. Review
    After serving his suspension, Doe returned to B.C. and
    graduated in May 2014.           In September 2014, his parents, B.C. alumni
    themselves, wrote letters to B.C. President Father William Leahy
    ("Father Leahy") expressing their dissatisfaction with the 2012
    disciplinary proceedings against Doe.            In his letter, Doe's father
    stated that they had no "desire to file a lawsuit against [B.C.]"
    or   any    of     the   individuals    who    were    involved     in    the    2012
    disciplinary proceedings.           In response, Father Leahy referred the
    Does   to    Barbara     Jones    ("Jones"),   Vice    President     for   Student
    Affairs, as "the right person at B.C. to review the case and make
    a recommendation" to the University's Executive Vice President on
    the matter.
    After several communications with Doe's parents, Jones
    reviewed Doe's disciplinary proceedings to determine whether B.C.
    followed     the    adequate     procedures,   and    whether     there    was   new
    evidence that would change the outcome.                 Jones determined that
    B.C.   had    appropriately        followed    its    procedures,    which       were
    "consistent with best practices in higher education," and that the
    new evidence the Does had brought forth in their communications to
    Father Leahy and Jones -- an enhanced analysis of the surveillance
    video from the ship, the results of the forensic tests, and the
    -13-
    results of a polygraph test -- did not justify reconsideration of
    Doe's case.
    B. Procedural History
    The   Does   initiated   this   action   on    March    11,   2015,
    claiming:   (1)    breach   of   contract   for    the    2012   disciplinary
    proceedings; (2) promissory estoppel; (3) breach of contract for
    the subsequent 2014 review; (4) breach of B.C.'s common law duty
    to ensure Doe's disciplinary process was conducted with basic
    fairness; (5) Title IX violations; (6) negligence; (7) negligent
    infliction of emotional distress; (8) intentional infliction of
    emotional distress; and (9) unjust enrichment.            The Does requested
    declaratory relief that would, among other things, expunge the
    disciplinary      proceedings    from   Doe's     university       records,    a
    permanent injunction directing B.C. to comply with Title IX, and
    no less than three million dollars in compensatory damages.                   One
    year later, the Does moved to amend the complaint and add Herlihy
    as a new defendant.
    All parties filed cross-motions for summary judgment.
    The Does moved for partial summary judgment on the claims for
    breach of contract for the 2012 disciplinary proceedings and breach
    of common law duty of basic fairness.             B.C. and the individual
    defendants moved for summary judgment on all claims.                  After a
    hearing, the district court denied the Does' motion for partial
    -14-
    summary   judgment   and    granted    both   B.C.'s   and   the   individual
    defendants' motions for summary judgment.3             This timely appeal
    followed.
    II. Standard of Review
    We review de novo a district court's decision to grant
    summary judgment.      Massachusetts v. Wampanoag Tribe of Gay Head
    (Aquinnah), 
    853 F.3d 618
    , 624 (1st Cir. 2017), cert. denied, 
    138 S. Ct. 639
    (2018).         We do this while "drawing all reasonable
    inferences in favor of the non-moving party."                Roman Catholic
    Bishop of Springfield v. City of Springfield, 
    724 F.3d 78
    , 89 (1st
    Cir. 2013) (citing Kuperman v. Wrenn, 
    645 F.3d 69
    , 73 (1st Cir.
    2011)).     Our standard of review is unaltered when an appeal emerges
    from cross-motions for summary judgment.         See City of 
    Springfield, 724 F.3d at 89
    ; see also OneBeacon Am. Ins. Co. v. Commercial Union
    Assurance Co. of Can., 
    684 F.3d 237
    , 241 (1st Cir. 2012).
    Summary judgment is only proper when "there is no genuine
    dispute as to any material fact and the movant is entitled to
    judgment as a matter of law."         Fed. R. Civ. P. 56(a).       A fact is
    material when it has potential of changing a case's outcome.             See
    Cherkaoui v. City of Quincy, 
    877 F.3d 14
    , 23 (1st Cir. 2017).               A
    3  The district court also denied the Does' motion to amend the
    complaint. The Does, however, do not raise this as an error in
    their appeal.
    -15-
    dispute is "genuine" when "the evidence about the fact is such
    that a reasonable jury could resolve the point in favor of the
    nonmoving party."     Rivera-Muriente v. Agosto-Alicea, 
    959 F.2d 349
    ,
    352 (1st Cir. 1992) (citing United States v. One Parcel of Real
    Prop., 
    960 F.2d 200
    , 204 (1st Cir. 1992)).                 And if there is a
    genuine dispute of a material fact, that dispute would "need[] to
    be resolved by a trier of fact."             Kelley v. LaForce, 
    288 F.3d 1
    ,
    9 (1st Cir. 2002).
    III. Discussion
    The Does raise a number of challenges to the district
    court's grant of summary judgment on all their claims in favor of
    B.C. and the individual defendants.            Let's begin.
    A. The Does' Breach of Contract Claim for 2012 the Disciplinary
    Proceedings
    In   reviewing     a    student's     breach     of   contract    claim
    against his or her university, we employ a reasonable expectations
    standard in interpreting the relevant contracts.                 See Walker v.
    President & Fellows of Harv. Coll., 
    840 F.3d 57
    , 61 (1st Cir.
    2016).    We   must    ask    "what     meaning      the   party   making     the
    manifestation, the university, should reasonably expect the other
    party[, the student,] to give it."           
    Id. (quoting Schaer
    v. Brandeis
    Univ., 
    735 N.E.2d 373
    , 378 (Mass. 2000)).                  In the context of
    disciplinary   hearings,     we   "review      the   procedures    followed   to
    ensure that they fall within the range of reasonable expectations
    -16-
    of one reading the relevant rules."    Cloud v. Trs. of Bos. Univ.,
    
    720 F.2d 721
    , 724-25 (1st Cir. 1983) (citing Lyons v. Salve Regina
    Coll., 
    565 F.2d 200
    , 202 (1st Cir. 1977)).     "[I]f the facts show
    that the university has 'failed to meet [the student's] reasonable
    expectations'" the university has committed a breach.   
    Walker, 840 F.3d at 61-62
    (quoting 
    Schaer, 735 N.E.2d at 378
    ).
    Below, the Does pointed to fifteen instances when B.C.
    allegedly breached the terms of their contractual agreement4 and
    the fundamental fairness guarantees that B.C. makes to students
    facing disciplinary procedures.       However, the Does only fully
    develop six of these alleged breaches in their appellate briefing.5
    Because we find that genuine disputes of material fact exist as to
    two of the alleged breaches, we hold the district court's grant of
    summary judgment as to the Does' breach of contract claim for the
    4  The parties do not dispute that a contractual relationship
    between Doe and B.C. arises from the Student Guide and the Conduct
    Board Procedure.
    5  The remaining nine alleged breaches are listed in their brief,
    but the Does explained that "space limitations" precluded them
    from briefing these breaches and point us to the arguments made
    below. We, however, deem that the Does have forfeited these nine
    arguments because "[f]iling a brief that merely adopts by reference
    a memorandum previously filed in the district court does not comply
    with the Federal Rules of Appellate Procedure."      R.I. Dept. of
    Envtl. Mgmt. v. United States, 
    304 F.3d 31
    , 47 n.6 (1st Cir. 2002);
    see also Gilday v. Callahan, 
    59 F.3d 257
    , 273 n.23 (1st Cir. 1995).
    If the Does had felt that they required additional space to develop
    their arguments, they could have requested leave of court to file
    an enlarged brief.
    -17-
    2012 disciplinary proceedings was improper. We review each alleged
    breach preserved on appeal in turn.
    1. Threshold Investigation
    The Does first argue that pursuant to the Student Guide,
    B.C. was required to conduct a threshold investigation to discuss
    the complaint with Doe and, based on that discussion, decide on
    how to proceed with the complaint.    The Does claim that Hughes's
    actions during their three meetings, where she failed to listen to
    Doe's account of the alleged sexual assault, and her decision to
    proceed with a disciplinary hearing even before meeting with Doe,
    breached the contract and prejudiced Doe.    The Does' contention,
    however, is unpersuasive.
    A complete reading of the Student Guide clarifies this
    issue.   The Does point to language in Section Five that provides
    "[a] student who has had a complaint lodged against him . . . will
    be called by the Dean of Students or designee to discuss the
    complaint."   From there, the document continues, "the case may be
    kept open for later resolution, dropped, resolved or referred to
    an appropriate hearing board as determined by the Dean."   However,
    Section Five of the Student Guide does not end there.      It also
    states that "[a] case may be referred directly to a Student Conduct
    Board or an Administrative Hearing Board if the Dean . . . feels
    that such a referral is appropriate."     Therefore, when Section
    -18-
    Five is read as a whole, and under the standard of reasonable
    expectations, it does not create a reasonable expectation on any
    reader that a threshold evaluation would be required before any
    complaint is referred to either of the boards.            Undoubtedly, the
    Dean of Students or designee must meet with a student who has a
    complaint lodged against him or her, but the Student Guide provides
    total discretion to said B.C. official to refer the case to a board
    before   the   meeting   with   an   accused    student    to   discuss   the
    complaint.     We need not dwell on this alleged breach any more, the
    language is unambiguous and "its purport may be determined as a
    matter of law." Petricca Dev. Ltd. P'ship v. Pioneer Dev. Co., 
    214 F.3d 216
    , 220 (1st Cir. 2000).              Since there is no threshold
    evaluation requirement, B.C. could not have breached its contract
    in this manner.
    2. Appropriateness of the Investigation
    The Does also argue that B.C. breached its contract by
    failing to conduct the required investigation of the alleged sexual
    assault.   The Does' argument here is two-fold.           First, they claim
    that B.C. "should have 'reasonably expected' a student to believe
    that allegations of sexual assault would be investigated by the
    [B.C.] Police before the University brought any charges against an
    accused student."     They point to subsection five of Section Four
    of the Student Guide which states that "[t]he Boston College Police
    -19-
    [will] work cooperatively with the Office of the Dean of Students
    to investigate and resolve cases under this policy."                     According
    to the Does, it was the B.C. Police, who are trained to respond to
    sexual    assault      complaints,      who    were   procedurally    required    to
    conduct     an    investigation        after    the    "threshold     evaluation."
    Alternatively, the Does contend that the language regarding the
    role of B.C. Police in the sexual assault procedures is at the
    very least ambiguous and summary judgment on this issue was
    improper.    Secondly, the Does assert that there was no appropriate
    investigation because the Board could not be considered an adequate
    investigatory body in compliance with the terms of the Student
    Guide.      The       Board,    the   Does    continue,    lacked    investigatory
    training and failed to wait for critical evidence.
    "In interpreting contractual language, we consider the
    contract    as    a    whole.     Its    meaning      'cannot   be   delineated   by
    isolating words and interpreting them as though they stood alone.'"
    Farmers Ins. Exch. v. RNK, Inc., 
    632 F.3d 777
    , 785 (1st Cir. 2011)
    (quoting Nicolaci v. Anapol, 
    387 F.3d 21
    , 26 (1st Cir. 2004)).
    Once again, a complete reading of the Student Guide does not favor
    the Does' contentions.           The language cited by the Does, found in
    subsection five of Section Four of the Student Guide, cannot be
    read in isolation.         Subsection five concerns the procedural steps
    and services that the B.C. Police provides to students who might
    -20-
    choose to file a criminal complaint after suffering a sexual
    assault.    In fact, the Student Guide clearly states that when an
    incident of sexual assault occurs off campus, B.C. Police's role
    is to assist "the victim in informing the appropriate municipal
    department if he or she so desires."             Subsection four of Section
    Four of the Student Guide, on the other hand, covers the procedure
    for the filing of a complaint within the University.                 There, it
    states     that    "[t]he    University       will     promptly    conduct    an
    investigation of the alleged incident."              A thorough reading of the
    Student Guide could not raise a reasonable expectation to a student
    who's had a complaint filed against him or her based on an incident
    that occurred off campus that the B.C. Police would have any role
    beyond   "assist[ing]       the   victim    in   informing   the   appropriate
    municipal police department."              As there is no additional duty
    here, no breach of contract is possible under this theory.
    The Does' second theory does not fare well either.
    Pursuant to the Student Guide, "[c]omplaints of sexual harassment
    . . . against a student member of the University community will be
    investigated      and   adjudicated    in    accordance    with    the   Student
    Conduct System policies and procedures, as described in Section
    [Five]." In turn, Section Five states that the "function of the
    [disciplinary] proceedings is to investigate the facts . . . and
    determine responsibility for the alleged violation." (emphasis
    -21-
    added).     Section Five contemplates two types of disciplinary
    proceedings: formal and informal hearings.                    While most complaints
    are    resolved    with    informal       hearings,      known    as     administrative
    review/adjudication        hearings,        in    some   cases    the     complaint   is
    referred to a Student Conduct Board or an Administrative Hearing
    Board for formal fact-finding and adjudication.                              The Student
    Guide's language is unambiguous: for any case referred to a board,
    that board will act as the investigatory body.                       Therefore, there
    was no breach of contract.
    Lastly,       the    Does'     contention     that    the     Board   lacked
    investigatory training and that it failed to wait for critical
    evidence is also unconvincing.              The Student Guide did not require
    Administrative      Hearing       Board     members      to   have     any    particular
    investigatory training in order to be part of the Board.                           Board
    members are, however, "trained by the Office of the Dean of
    Students" and the record shows that all members in the case at
    hand    received    this        training    before       Doe's    2012    disciplinary
    proceedings.       And, the Student Guide did not require the Board to
    wait for all evidence to become available before it could consider
    a disciplinary case and reach a decision.                 The Board here, however,
    considered that possibility and asked Doe and his advisor when the
    additional evidence would become available.                      Neither Doe nor his
    advisor could provide a definitive answer.                    In the end, the record
    -22-
    shows that the results of the forensic tests did not become
    available until February 2013.          If the Board had decided to wait
    for the alleged critical evidence, the delay could have caused
    B.C. to breach its contractual obligation to "resolve the complaint
    within [sixty] days."       Therefore, the Board's refusal to wait for
    the results of the forensic tests and an enhanced surveillance
    video6 from the ship does not breach the contract.
    3. Appropriateness of the Hearing Date
    Next, the Does contend that B.C. breached its obligation
    to ensure that Doe had adequate time to prepare a response to the
    charges when Hughes decided that the case needed to be resolved
    quickly and rejected James's request for a stay of the University
    disciplinary     proceedings   while     the   criminal   case   was   still
    ongoing.   The Does argue that the district court's decision --
    that B.C. had ultimate discretion on whether or not to stay the
    proceedings -- is incorrect, because while the language of the
    procedures states that the Dean "may" stay the process, that
    language   has    to   be   read   in   conjunction   with   B.C.'s    other
    contractual obligations, which are to provide for due process and
    fundamental fairness.       Taken together, the Does believe that the
    6  The record is not clear as to the date in which the enhanced
    surveillance video first became available. However, the enhanced
    video was presented to the Commonwealth in July 2013.
    -23-
    decision to proceed so quickly does not conform to a student's
    reasonable expectations and constitutes a breach of the overall
    bargain.
    We disagree.   One more time the Student Guide's language
    is dispositive.    In relevant part Section Four of the Student
    Guide provides that when a complaint is filed "[t]he University
    will promptly conduct an investigation of the alleged incident
    . . . [and] make every reasonable effort to resolve the complaint
    within [sixty] days."     Therefore, a student facing a complaint
    could reasonably expect that any disciplinary hearing would take
    place within those sixty days.     And this reasonable expectation
    is not truncated by B.C.'s other contractual obligations to provide
    due process and fundamental fairness since Doe had written notice
    of the charges, opportunity to discuss the charges with counsel
    and have counsel present as an advisor during the disciplinary
    proceedings, and enough time to present witnesses.   See 
    Cloud, 720 F.2d at 724
    , 726 (finding that due process and basic fairness were
    followed when accused student had counsel and opportunity to
    present witnesses).
    The same goes with the Does' argument regarding B.C.'s
    refusal to stay University disciplinary proceedings while Doe's
    criminal case was still pending.   While the Student Guide provides
    to the Dean of Students the possibility of staying Boston College's
    -24-
    disciplinary process "if a student is summarily suspended and the
    criminal matter remains open," "the university conduct process
    will normally proceed while the criminal action is in process."
    Accordingly, B.C. did not breach the contract by pursuing to
    resolve the complaint filed against Doe within sixty days and
    concurrently to the criminal case, as provided in the Student
    Guide.
    4. Board Members' Impartiality
    The Student Guide requires that Administrative Hearing
    Board members "disclose any real or perceived conflict of interest
    between themselves and any party and may not hear a case if they
    are not able to be impartial in the hearing of the case."      The
    Does claim that B.C. breached its contract because the Board was
    not impartial, mainly due to certain actions by the Board's chair,
    Rivera.7   The Does argue that Rivera's tone towards Doe during the
    disciplinary proceedings was evidence of bias and a breach of the
    impartiality requirement in the Student Guide.   The Does point to
    7  The Does also argue, without much elaboration and in a footnote,
    that there were some "related breach concerns" regarding Hughes's
    alleged failure to ensure there were no conflicts of interests by
    any of the Board's members and an alleged undisclosed conflict of
    interest by one of the Board members. This argument, however, is
    deemed waived. Nat'l Foreign Trade Council v. Natsios, 
    181 F.3d 38
    , 60 n.17 (1st Cir. 1999) ("We have repeatedly held that
    arguments raised only in a footnote or in a perfunctory manner are
    waived.").
    -25-
    their own testimony in order to describe Rivera's tone as openly
    hostile, aggressive biased, and dismissive.
    The Does contend that the district court erred when it
    made improper factfinding and credibility determinations when it
    decided that Rivera was not biased towards Doe, rejecting the
    evidence provided as "subjective impressions."               They argue that
    this is contrary to Burns v. Johnson, 
    829 F.3d 1
    , 12-13 (1st Cir.
    2016) (citing United States v. Flores-Rivera, 
    787 F.3d 1
    , 28 (1st
    Cir.   2015)    ("Personal     knowledge    can    include    inferences    and
    opinions, so long as they are grounded in personal observations
    and experiences.")).
    "Nevertheless,       it   has    been   noted     that    '[a]lleged
    prejudice of university hearing bodies must be based on more than
    mere speculation and tenuous inferences.'"             Gorman v. Univ. of
    R.I., 
    837 F.2d 7
    , 15 (1st Cir. 1988) (quoting Duke v. N. Tex. State
    Univ., 
    469 F.2d 829
    , 834 (5th Cir. 1972)).           In reviewing schools'
    disciplinary procedures, "a presumption [of impartiality] favors
    the administrators, and the burden is upon the party challenging
    the    action   to   produce     evidence    sufficient      to     rebut   this
    presumption."     
    Id. See also
    Nash v. Auburn Univ., 
    812 F.2d 655
    ,
    665 (11th Cir. 1987) ("Any alleged prejudice on the part of the
    board must be evident from the record and cannot be based in
    speculation or inference."); Ikpeazu v. Univ. of Neb., 775 F.2d
    -26-
    250, 254 (8th Cir. 1985) ("[W]e observe that the committee members
    are entitled to a presumption of honesty and integrity unless
    actual bias, such as personal animosity, illegal prejudice, or a
    personal or financial stake in the outcome can be proven.").
    The Does do not meet their burden of proof.         We have
    recognized before that observations about a defendant's tone based
    on perception are not mere speculation, "so long as they are
    grounded in personal . . . experiences."         
    Burns, 829 F.3d at 12
    –
    13 (citing 
    Flores-Rivera, 787 F.3d at 28
    ).        However, after giving
    credit to the Does' version of the facts, the statements accredited
    to Rivera fail to rebut the Board's impartiality presumption.
    According to the Does, Rivera acted with an attitude
    towards Doe and asked questions to either him or his witnesses
    that Doe would qualify as "cross-examination," while subjecting
    other witnesses to only "softball" questions.        Still, considering
    Rivera's role as the chairperson of the Board, in charge of
    managing the flow of the hearing and leading the questioning of
    the witnesses, the Does statements, without more, are not legally
    sufficient    to   overcome   the   Board's   impartiality   presumption,
    particularly when an examination of the record fails to reveal any
    other evidence of bias showing that the Board was either prejudiced
    or partial against Doe.       Cf. United States v. DeCologero, 
    530 F.3d 36
    , 56 (1st Cir. 2008) (quoting Liteky v. United States, 510 U.S.
    -27-
    540, 555-56 (1994)) ("[R]emarks during the course of a trial that
    are critical or disapproving of, or even hostile to, counsel, the
    parties, or their cases, ordinarily do not support a bias or
    partiality challenge.").        Thus, we find no breach of contract by
    B.C. under this theory.
    5. Adequacy of the Board's Training
    As briefly mentioned before, the Student Guide also
    provides that "[a]ll board members [of an Administrative Hearing
    Board]   are   trained    by   the   Office   of   the   Dean    of    Students.
    Chairpersons for the Administrative Hearing Board are designated
    by the Dean of Students and receive additional training."                As the
    district court correctly held, under the reasonable expectations
    standard, "a student would accord to this contractual provision
    . . . that members of any university hearing board would not only
    receive training but that training would be adequate to resolve
    the disputes that came before those members."            Doe v. Trs. of Bos.
    Coll., No. 15-CV-10790, 
    2016 WL 5799297
    , at *17. (D. Mass. Oct. 4,
    2016).
    The   Does    contend     that   B.C.   breached     this    contract
    requirement by failing to ensure that the Board members were
    properly trained.        The Does rely on Chebator's awareness of a
    report issued by B.C. on April 23, 2012, which concluded that
    B.C.'s sexual assault trainings for Hearing Board members were
    -28-
    insufficient according to "best practices."      According to the
    Does, this alleged admission and the lack of any evidence in the
    record that would show that B.C.'s training practices changed or
    improved before Doe's disciplinary procedures, should be enough to
    grant summary judgment in their favor.     In any case, the Does
    claim that there is enough dispute as to the adequacy of the Board
    members' training to give rise to a jury question.
    We, however, disagree. The record before us does provide
    evidence that B.C. took remedial steps in response to the April 23,
    2012 report.   Chebator testified that in response to the report,
    B.C. "ramp[ed] up the training for individuals who would be hearing
    sexual assault cases" by developing "a secondary training for those
    individuals who would be sitting on administrative hearing boards
    involving sexual assault matters."    And, as discussed above, the
    record also shows that all Board members in the case at hand
    received this training before Doe's 2012 disciplinary proceedings,
    and after the remedial steps were implemented.8      We, therefore,
    agree with the district court's ruling that, given B.C.'s response
    8  In fact, all but one of the Board members recognized during
    their depositions a document marked as deposition Exhibit No. 105,
    which contained an agenda for the Administrative Hearing Board,
    Organizational Meeting, held on October 3, 2012.          They all
    recognized that as part of this training session they were trained
    in Title IX issues by the Massachusetts District Attorneys' Office.
    -29-
    to the April 23, 2012 report, B.C. did not breach its contractual
    obligation to adequately train the members of the Board.
    6. Interference with the Board
    a. Deliberations
    The Does posit that pursuant to the Student Guide, B.C.
    was required to ensure the independence and integrity of the
    Board's deliberations without outside interference. Specifically,
    the Does point to the Student Guide's requirement that the Board
    meet "in private" and that its final decision be impartial.                  The
    Does    argue    that   B.C.    breached      this    commitment   when   Hughes
    transmitted Chebator's discouragement of a "no finding" result to
    Rivera during the weekend between the Board's two deliberation
    sessions.    That interference, they argue, were it to have happened
    during    court     proceedings,       would     be    "deemed     presumptively
    prejudicial."     Remmer v. United States, 
    347 U.S. 227
    , 229 (1954).
    At the very least, the Does claim, there is a factual dispute as
    to     whether    there   was     an    interference       with    the    Board's
    deliberations, and the district court should not have granted
    summary judgment.
    Boston College, on the other hand, argues that the
    Board's independence was not compromised.                  Regarding Hughes's
    relaying of Chebator's "discouragement" remark, B.C. states that
    there is no evidence that the Board was influenced in any way by
    -30-
    this comment.      In B.C.'s view, Chebator's comment was not a
    suggestion that the Board should make a finding of "responsible,"
    but merely that it would be better if the Board made some finding.
    A review of the record reveals that summary judgment on
    this issue was inappropriate.       Let's briefly recap Chebator's
    indirect interaction with Rivera, the designated chairperson of
    the Board.
    On Friday, soon after completing the second day of
    hearings in Doe's case, the Board began deliberations.            However,
    by the end of the day the Board had not reached a result.                 At
    around   10:48p.m.,   Rivera   responded    to   an    email   from   Hughes
    inquiring about the status of the Board's deliberations.              In her
    email, Hughes had asked if she should assume that the Board had
    not reached a result.    Rivera replied, "Yes you can say that.           We
    def [sic] won't have it by noon on Monday.            We were all drained.
    Struggling with needing to see the other evidence, but know we
    can't wait for weeks or months.            It is not a clear yes for
    responsible."     Rivera then informed Hughes that the Board would
    think about the case over the weekend and continue deliberations
    on the coming Monday.    Rivera's email closed with, "[w]e are going
    on the notion not to have 'no finding.'"
    -31-
    Over the weekend,9 Rivera contacted Hughes again, this
    time over the phone.   According to Hughes, Rivera asked her if the
    University had issued a "no finding" result in the past.    Hughes
    did not know the answer, and decided to ask her immediate superior,
    Chebator.   Chebator's response was that indeed there had been "no
    finding" determinations in the past, but that he discouraged them.
    After Hughes's conversation with Chebator, but before Monday --
    when the Board would meet once more to continue deliberations --
    Hughes called Rivera and told her that Chebator confirmed that
    previous cases had concluded with "no finding," but that he
    "discouraged it."
    While none of the other Board members recall hearing
    about Chebator's comment, the parties do not dispute that the
    comment reached Rivera before the second day of deliberations.10
    And, while B.C.'s written policies and procedures are silent as to
    who leads the Board's deliberations, the record indicates that
    9  The record is not clear as to whether these conversations
    occurred Saturday or Sunday.
    10 During her deposition Rivera testified that by "Friday, and by
    Monday, everybody was unanimous that they felt that [Doe] was
    responsible for what we believe was inappropriate touching of the
    buttocks." However, other parts of the record show that all but
    one of the other Board members testified that even though a "soft
    vote" was taken on Friday, they did not reach a decision on the
    first day of deliberations.
    -32-
    Rivera, as appointed chairperson of the Board, was the one leading
    it.
    At the summary judgment stage, a trial court is to make
    legal determinations rather than involve itself in factfinding.
    See United Paperworkers Int'l Union Local 14 v. Int'l Paper Co.,
    
    64 F.3d 28
    , 31 (1st Cir. 1995).                 The record here, viewed in the
    light most favorable to the Does, necessarily bars summary judgment
    for this alleged breach of contract claim.                   Under the standard of
    reasonable expectations, it is reasonable for a student to expect
    that the B.C. Student Guide's language stating that "[t]he Board
    will   meet    in   private      to     determine     whether      the     accused    is
    responsible or not[,]" means exclusion of outside influences in
    the Board's deliberations.                  Furthermore, during oral argument,
    B.C.'s counsel agreed that B.C. is required to conduct disciplinary
    proceedings with basic fairness.                   In this context, conducting
    these proceedings with basic fairness excludes having an associate
    Dean   of     Students    tell        the    Board   Chair    in    the    middle     of
    deliberations that one of the verdict options favorable to the
    student ("no finding") was discouraged by the Dean of Students.
    Whether    or     not     Rivera's     communications        with      B.C.
    administrators,         while     deliberations        where       still      ongoing,
    inappropriately interfered with the Board's decision on the sexual
    assault     complaint    against       Doe,    and   breached      Doe's   reasonable
    -33-
    expectation that the Board would meet in private, is a material
    fact with regard to the Does' breach of contract claim.      Because
    a reasonable jury could resolve this dispute in favor of the Does,
    the dispute is genuine and summary judgment inappropriate.
    b. Alternative Culprit Defense
    The Does also argue that the district court erred when
    it allegedly disregarded the way Hughes handled Doe's alternative
    culprit defense.11   According to the Does, Hughes's conduct was
    prejudicial to Doe since Hughes, through a subordinate, instructed
    Rivera that the Board should put J.K. "at ease."    This, the Does
    conclude, is an indication that J.K. received special treatment
    and, thus, Doe's case was not "fairly considered" by the Board.
    Just like it is reasonable for a student to expect that
    a school's basic fairness guarantee excludes outside influences in
    the Board's deliberations, it is also reasonable for a student to
    expect that a basic fairness guarantee excludes having an associate
    Dean of Students request Board members to give special treatment
    to the prime alternative culprit in a case in which the key defense
    is that someone other than the accused student committed the
    alleged sexual assault.   On Sunday, November 11, 2012, after the
    11 Although the Does raise this claim principally in challenging
    B.C.'s failure to conduct a threshold evaluation of the situation,
    we think that it fits more comfortably under the heading of
    "Interference with the Board."
    -34-
    first day of Doe's disciplinary hearing, Hughes emailed a summary
    of   several   steps   taken   as   to   Doe's   case   to   Herlihy   and   a
    subordinate employee from B.C.'s Office of the Dean of Students.
    Regarding J.K., Hughes wrote: "I was very clear with J.K. that he
    was coming as a witness and was not being charged with anything.
    I think it might be good to talk to [Rivera] about how the [B]oard
    might also put him at ease."        The phrase "at ease" may encompass
    many accommodations, and that phrase is nowhere defined in the
    summary judgment record.
    Doe's disciplinary hearing continued on November 16,
    2012, (the day in which J.K. testified).          Whether or not Hughes's
    directive to her subordinate about talking to Rivera on how the
    Board might put J.K. at ease breached Doe's reasonable expectation
    that B.C. would provide him "a fair procedure" is, on this opaque
    record, a material fact with regard to the Does' breach of contract
    claim that should be resolved by the jury.              We therefore vacate
    the district court's grant of summary judgment on the Does' breach
    of contract claim for the 2012 disciplinary proceeding and remand
    for further proceedings consistent with this opinion.
    B. Basic Fairness Claim
    Next, the Does bring forth a basic fairness claim in
    which they argue that B.C.'s alleged breaches of contract, either
    all together or any one of them independently, breached B.C.'s
    -35-
    obligation to provide a fundamentally fair disciplinary process to
    Doe.   The Does contend that B.C.'s basic fairness obligation is
    rooted in two independent sources: (1) the Student Guide itself,
    which provides that B.C.'s disciplinary process "exists to protect
    the rights of the Boston College community and assure fundamental
    fairness to complainants and to students accused of any breach of
    the University Code of Student Conduct," and (2) an independent
    duty   to   conduct   disciplinary   procedures   with   basic   fairness
    imposed by Massachusetts law.
    We agree with the Does that the implied covenant of good
    faith and fair dealings imposed on every contract by Massachusetts
    law, applied in the context of school disciplinary proceedings,
    creates an independent duty to provide basic fairness.           See Uno
    Rests., Inc. v. Bos. Kenmore Realty Corp., 
    805 N.E.2d 957
    , 964
    (Mass. 2004).     In Coveney v. President & Trs. of Coll. of Holy
    Cross, the Massachusetts Supreme Judicial Court ("SJC") recognized
    that even where a student does not have a contractual right to a
    disciplinary hearing, if a school does hold a hearing, the school
    has a duty to conduct it with basic fairness.      See 
    Cloud, 720 F.2d at 725
    n.2 (citing Coveney, 
    445 N.E.2d 136
    , 139 (Mass. 1983))
    ("[W]hen a hearing is held, it must be conducted fairly.").
    However, whenever a school expressly promises no less than basic
    fairness, which is the case here, the school's implied duty becomes
    -36-
    superfluous       and   the    court's      analysis    to   ensure   that   the
    disciplinary proceedings were "conducted with basic fairness,"
    
    Cloud, 720 F.2d at 725
    , focuses on assuring compliance with the
    express contractual promise.
    The district court's grant of summary judgment on the
    Does' claim for basic fairness rested on its analysis as to the
    Does' breach of contract claim. Trs. of Bos. Coll., 
    2016 WL 5799297
    , at *23.        Because there are genuine issues of material
    fact   on   the    Does'      breach   of    contract   claim   for   the    2012
    disciplinary proceedings, as discussed above, summary judgment on
    the Does' basic fairness claim was also inappropriate.                Therefore
    we also vacate and remand on this issue.
    C. The Does' Breach of Contract Claim for the 2014 Review
    In their complaint, the Does allege that the written
    communications they exchanged with Father Leahy in 2014 (two
    letters sent by Doe's parents and a couple of e-mails exchanged
    between James and Father Leahy) formed a binding contract between
    B.C. and the Does, which required B.C. to conduct an independent
    review of the 2012 disciplinary proceedings.                 They allege that
    B.C. breached this contract because the 2014 review was "anything
    but" independent.
    The Does contend that these communications satisfied all
    the elements of a valid contract.               That is, that there was an
    -37-
    offer, acceptance, and consideration, resulting in each party
    having obligations.    In exchange for Father Leahy's offer for an
    independent review, the Does allege that they forbore the pursuit
    of legal action against B.C., serving as the consideration in the
    contract formation.   Lastly, the Does point to Massachusetts case
    law to support their contention that a contract was formed, even
    though not all terms had been precisely identified.        See Situation
    Mgmt. Sys., Inc. v. Malouf, Inc., 
    724 N.E.2d 699
    , 703 (Mass. 2000).
    Alternatively, the Does contend that any dispute as to whether or
    not a contract was formed should be resolved by a jury, and not on
    summary judgment.
    Boston    College   counters    that   the   Does'   breach   of
    contract claim for the 2014 review fails for two reasons.           One,
    they argue that the aforementioned written exchange failed to meet
    the basic elements of contract formation, meaning there was no
    contract to be breached by B.C.    In particular, they point to the
    lack of any manifest intention by Father Leahy to be bound by any
    particular terms of an agreement.        Two, B.C. maintains that even
    if the Court were to assume that an enforceable contract existed,
    the Does cannot identify any specific failure or omissions by B.C.
    that would constitute a breach.          B.C. contends that the Does'
    disagreement with Jones's conclusion in her review is not a triable
    issue of fact regarding a breach of any agreement.
    -38-
    "Although    the    question     of   contract    formation   is
    typically a question for the factfinder, and would thus be subject
    to clear error review, where 'the evidentiary foundation for
    determining the formation of the parties' contract [is] either
    undisputed    or   consist[s]    of   writings,'    contract   formation   is
    instead a question of law for the court."             TLT Constr. Corp. v.
    RI, Inc., 
    484 F.3d 130
    , 135 (1st Cir. 2007) (citation omitted)
    (quoting Lambert v. Kysar, 
    983 F.2d 1110
    , 1114 n.4 (1st Cir.
    1993)).   Here, we find ourselves in the latter situation.
    The essential elements for the formation of a contract
    under Massachusetts law consist of an offer, acceptance, and
    consideration.     See Quinn v. State Ethics Comm'n, 
    516 N.E.2d 124
    ,
    127 (Mass. 1987).        In particular, the SJC has explained that in
    determining    whether    an    enforceable   contract   has   been   created
    "there must be agreement between the parties on the material terms
    of that contract, and the parties must have a present intention to
    be bound by that agreement."           Lambert v. Fleet Nat. Bank, 
    865 N.E.2d 1091
    , 1095 (Mass. 2007) (quoting Situation Mgmt. Sys., 
    Inc., 724 N.E.2d at 703
    ).            Not all terms of an agreement must be
    "precisely specified, and the presence of undefined or unspecified
    terms will not necessarily preclude the formation of a binding
    contract."    Situation Mgmt. Sys., 
    Inc. 724 N.E.2d at 703
    .
    -39-
    As to the element of consideration, "the contract must
    be a bargained-for exchange in which there is a legal detriment of
    the promisee or a corresponding benefit to the promisor."              Neuhoff
    v. Marvin Lumber & Cedar Co., 
    370 F.3d 197
    , 201 (1st Cir. 2004)
    (citing Hinchey v. NYNEX Corp., 
    144 F.3d 134
    , 142 (1st Cir. 1998)).
    And while "abandonment of a claim believed to be well founded . . .
    is   the   surrender   of   a   thing   of   value   and    is   a   sufficient
    consideration for a contract," Blair v. Cifrino, 
    247 N.E.2d 373
    ,
    375 (Mass. 1969) (quotations and citations omitted), the "[m]ere
    forbearance to sue a claim, without any promise either in express
    terms or by fair implication from all of the circumstances, does
    not form sufficient consideration."          Merrimac Chem. Co. v. Moore,
    
    181 N.E. 219
    , 222 (Mass. 1932).
    Even with all reasonable inferences resolved in favor of
    the Does, we cannot conclude that their 2014 written communications
    with Father Leahy created a binding contract.              A complete reading
    of the record validates our conclusion.              It is true that James
    informed Father Leahy, though somewhat indirectly, that the Does
    were prepared to "file a lawsuit against [B.C.]," in order to
    correct the alleged injustice.          Yet nothing in the record shows
    that the Does expressed any willingness to forego their right to
    file that lawsuit.     While it is true that the forbearance of one's
    right to sue may be implied under certain circumstances, see 
    id., -40- Father
    Leahy's response to the Does' letters was limited to a
    suggestion that James contact B.C.'s Vice President for Student
    Affairs.      Nothing in the record hints Father Leahy's suggestion
    was a contractual offer or promise made to persuade the Does to
    abandon a possible lawsuit.       Cf. 
    Neuhoff, 370 F.3d at 202
    (finding
    that a retail promise was not given to induce the abandonment of
    a lawsuit).
    Because    there    was   no    consideration,     no   enforceable
    contract was formed from the written communications between the
    Does and Father Leahy.        Therefore, we affirm the district court's
    grant of summary judgment in favor of B.C. as to the Does' breach
    of contract claim for the 2014 review.
    D. Title IX Claims
    Next, the Does challenge the district court's summary
    judgment dismissal of their Title IX claims.              In their complaint,
    the Does pursued Title IX discrimination claims for erroneous
    outcome based on gender bias and deliberate indifference.                  We
    consider them in turn.
    1. Erroneous Outcome based on Gender Bias
    Title IX provides that "[n]o person in the United States
    shall, on the basis of sex . . . be subjected to discrimination
    under   any    education   program        or   activity   receiving   Federal
    financial assistance."        20 U.S.C. § 1681(a).         This provision is
    -41-
    enforceable "through an implied private right of action."             Gebser
    v. Lago Vista Indep. Sch. Dist., 
    524 U.S. 274
    , 281 (1998) (citing
    Cannon v. Univ. of Chi., 
    441 U.S. 677
    , 717 (1979)).              The Does'
    Title IX claims rest on challenging B.C.'s disciplinary procedures
    as discriminatory. Neither the Supreme Court nor this Circuit have
    adopted a framework for analyzing claims by students challenging
    a university's disciplinary procedures as discriminatory under
    Title IX.   We need not establish one at this moment.           The parties
    agree that the applicable standard for the Does' Title IX claim
    challenging B.C.'s disciplinary procedures on erroneous outcome
    grounds requires that a plaintiff offer evidence "cast[ing] some
    articulable     doubt   on     the   accuracy   of   the   outcome   of   the
    disciplinary proceeding," and indicating that "gender bias was a
    motivating factor."12        Yusuf v. Vassar Coll., 
    35 F.3d 709
    , 715 (2d
    Cir. 1994).13
    12  We note that the Sixth Circuit has also consistently applied
    this same standard when facing Title IX claims under the theory of
    erroneous outcome. See Doe v. Miami Univ., 
    882 F.3d 579
    , 592 (6th
    Cir. 2018) (applying the same criteria as Yusuf for a Title IX
    erroneous outcome claim to reverse the district court's grant of
    a motion to dismiss for failure to state a claim); Doe v. Cummins,
    
    662 F. App'x 437
    , 451-52 (6th Cir. 2016) (applying the same
    criteria for a Title IX erroneous outcome claim to affirm the
    district court's grant of a motion to dismiss under Fed. R. Civ.
    P. 12(b)(6)); Mallory v. Ohio Univ., 
    76 F. App'x 634
    , 638-39 (6th
    Cir. 2003) (applying the same criteria for a Title IX erroneous
    outcome claim to affirm the district court's grant of a summary
    judgment).
    13   We also note that the Second Circuit recently held that "the
    -42-
    The   Does     argue   that   the    record   contains   sufficient
    evidence to support their erroneous outcome claim that B.C.'s
    procedures were infected with gender bias.14                 Their argument is
    threefold.         First,    they   contend      that   B.C.'s   procedures   are
    infected with systemic gender bias.              This is so, they say, despite
    the fact that the University's statistics show that, since 2005,
    ten of thirty-two students accused of sexual assault were not found
    responsible in their disciplinary proceedings.               Even though these
    temporary presumption afforded to plaintiffs in employment
    discrimination cases under Title VII applies to sex discrimination
    plaintiffs under Title IX as well." Doe v. Columbia Univ., 
    831 F.3d 46
    , 56 (2d Cir. 2016). But see Miami 
    Univ., 882 F.3d at 589
    (declining to follow the Second Circuit's reasoning for extending
    Title VII's temporary presumption to Title IX sex discrimination
    plaintiffs because of differing Sixth Circuit precedent regarding
    the pleading standard under Title VII). We take no position as
    to whether such a presumption applies to Title IX claims because
    even if it did, it would not affect the outcome of this case.
    14  The Does also allege in their brief that the district court
    misapplied the "[s]tandard in evaluating the [e]vidence of
    [g]ender [b]ias" because it "improperly placed the burden on [Doe]
    to 'provide "statements by members of the disciplinary tribunal"
    or "statements by pertinent university officials" that demonstrate
    the improper influence of gender on the proceedings.'" Because
    we review de novo the district court's grant of summary judgment,
    this argument is immaterial.     However, the Does misstate and
    misquote the district court's ruling on this matter.        In its
    memorandum and order, the district court did not require Doe to
    offer direct proof of gender bias, but instead ruled that, to
    answer the question of "whether the college's actions were
    motivated by gender bias," a plaintiff "can . . . show[] [this]
    via statements by members of the disciplinary tribunal." Trs. of
    Bos. Coll., 
    2016 WL 5799297
    , at *24 (emphasis added) (internal
    citation omitted).
    -43-
    statistics might suggest that B.C.'s proceedings are not infected
    with gender bias, the Does claim that it is a pervasive belief at
    B.C. that accusers are always female and perpetrators are always
    male, and this belief infects all proceedings with gender bias.
    This systemic gender bias, the Does continue, is confirmed by the
    terminology B.C. employs in its written policies and procedures:
    accusers are branded "victims" or "victims/survivors," while an
    accused student is labeled a "perpetrator."   Together, they argue,
    these facts show a systemic gender bias against accused males.
    Next, the Does maintain that gender bias played a role
    in B.C.'s procedures because B.C. administrators were influenced
    by outside pressure.    Specifically, the Does point to pressure
    exerted by the U.S. Department of Education and its Office of Civil
    Rights's April 2011 "Dear Colleague" Letter, which tied federal
    funding for private colleges to their compliance with certain
    requirements for handling sexual harassment and sexual violence on
    their campuses.15   Lastly, the Does assert that there is enough
    evidence to prove that there was a "pattern of decision-making" in
    Doe's case in which gender bias was the motivating factor.   First,
    the Does claim that the Commonwealth's decision to dismiss the
    15 See "Dear Colleague" Letter from Russlynn Ali, Assistant Sec'y
    for Civil Rights, U.S. Dep't of Educ. (Apr. 4, 2011),
    https://www2.ed.gov/about/offices/list/ocr/letters/colleague-
    201104.pdf.
    -44-
    criminal charges against Doe serves as evidence of his innocence.
    Second, they list several occurrences which allegedly show a
    "pattern of decision-making" explained solely by gender bias,
    including inter alia: (1) Hughes's treatment of and contempt
    towards Doe; (2) Hughes and Chebator's interference with the Board
    by "discouraging" a "no finding" result; (3) the Board's refusal
    to wait for the results of the forensic tests; and (4) the
    presumption of Doe's guilt.16
    On the other hand, B.C. contends that the Does' erroneous
    outcome claim fails because they have been unable to produce any
    evidence that would suggest gender bias by the B.C. administrators
    or any of the decision makers involved in Doe's disciplinary
    proceedings, or that the outcome of Doe's disciplinary proceeding
    was influenced by gender bias.     Nor is there evidence that B.C.
    was influenced by external pressures.        Therefore, gender bias
    could not have been a motivating factor in the disciplinary
    decision.
    16 The Does also allege that the failure to reverse the outcome
    of Doe's 2012 disciplinary proceedings could only be explained by
    gender bias. This argument lacks any meaningful development and
    should therefore be deemed waived, see United States v. Zannino,
    
    895 F.2d 1
    , 17 (1st Cir. 1990), and it is also unfounded since
    they do not offer any evidence that Jones, who conducted the
    review, was motivated by gender bias.
    -45-
    To succeed on their erroneous outcome claim, the Does
    must offer evidence (1) that would "cast some articulable doubt on
    the accuracy of the outcome of the disciplinary proceeding" and
    (2) show "gender bias was a motivating factor."        
    Yusuf, 35 F.3d at 715
    .    The Does fail on the second prong.
    Even assuming that the Dean's interference with the
    Board's deliberations cast some articulable doubt on the outcome,
    none of the arguments put forth by the Does -- or evidence which
    they point us to -- tend to show that there was a causal connection
    between the outcome of Doe's disciplinary proceedings and gender
    bias.     To show this causal link, the Does cannot merely rest on
    superficial assertions of discrimination, but must establish that
    "particular    circumstances   suggest[]   that   gender   bias   was   a
    motivating factor."    
    Id. First, we
    are unmoved by the Does' contention that B.C.'s
    procedures are infected with a systemic gender bias based on the
    fact that between August 1, 2005 and July 1, 2015, only male
    students have been accused of sexual assault.      It is unreasonable
    to draw such an inference from this information rather than
    recognize that other non-biased reasons may support the gender
    makeup of the sexual misconduct cases at B.C.        See 
    Cummins, 662 F. App'x at 453-54
    .    The gender of the students accused of sexual
    assault is the result of what is reported to the University, and
    -46-
    not the other way around.     Furthermore, the language used in B.C.'s
    written   procedures   is,   on   its    face,    gender   neutral.        The
    procedures make no mention of men or women but rather use terms
    like "victim," "survivor," "alleged perpetrator," "complainant,"
    or "accused student."17      Actually, throughout the Student Guide,
    both victims and the accused are referred to as "he or she,"
    indicating that B.C. believes that men and women can both be
    victims   and   perpetrators.      The     Does    have    pointed    to    no
    circumstantial evidence, other that the statistics of male accused
    students and the language in the Student Guide, that would suggest
    that gender bias played a role in the outcome of the proceedings
    in this case.    As this case comes to us on a motion for summary
    judgment, after the parties have engaged in substantial discovery,
    a complete lack of evidence -- whether direct or circumstantial
    -- will not allow a party to survive a motion for summary judgment.
    Conclusory allegations are not enough.
    Secondly, while the Does may rely on circumstantial
    evidence alone to prove that there was a discriminatory pattern of
    decision-making, see 
    Burns, 829 F.3d at 8
    (holding that a plaintiff
    17  While subsection five of Section Four of the Student Guide
    makes one reference to "female victims/survivors," it is to
    guarantee the female students the right to have a female officer
    present during interviews with the B.C. Police. This reference
    to "female student" does not illustrate gender bias.
    -47-
    may rely on circumstantial evidence to prove sex discrimination
    under Title VII),18 none of the circumstances of Doe's disciplinary
    proceedings indicate that gender bias was a "motivating factor"
    behind the Board's determination.         In fact, the record contains
    gender-neutral explanations for the outcome of Doe's case -- mainly
    that the Board concluded that there was enough evidence to support
    its finding.19   While we remand this case as to the Does' breach
    of contract claim for the 2012 disciplinary proceedings because we
    have found that there is a dispute regarding whether there was any
    inappropriate interference with the Board's decision, the record
    does not show that even if there was an interference, gender bias
    was a motivating factor.     
    See supra
    III.A.I.6.a.
    Finally, the Does' argument that B.C. administrators
    were   influenced   by   outside   pressure,   in   particular   the   U.S.
    Department of Education's April 2011 "Dear Colleague" Letter, is
    both conclusory and meritless.       The Does have not explained how
    18 We may turn to Title VII for guidance on Title IX claims. See
    Frazier v. Fairhaven Sch. Comm., 
    276 F.3d 52
    , 65 (1st Cir. 2002)
    (citing Wills v. Brown Univ., 
    184 F.3d 20
    , 25 n.3 (1st Cir. 1999)).
    19 The record shows that Board Members: (1) understood that their
    finding had to be grounded on the preponderance of the evidence;
    (2) knew that Doe did not have the burden to prove his innocence;
    (3) discussed all the evidence presented during the hearings; (4)
    felt that there was enough evidence to support a finding; and (5)
    found that Doe had committed the sexual assault by touching A.B.'s
    buttocks.
    -48-
    the Dear Colleague Letter reflects or espouses gender bias.            This
    necessarily dooms their argument that the Letter somehow infected
    the   proceedings   at   issue   here   with   gender   bias.   More   than
    "conclusory allegations, improbable inferences, and unsupported
    speculation" is required to defeat summary judgment.            LeBlanc v.
    Great Am. Ins. Co., 
    6 F.3d 836
    , 842 (1st Cir. 1993) (citations
    omitted).
    Accordingly, we affirm the district court's grant of
    summary judgment in favor of B.C. as to the Does' Title IX
    erroneous outcome claim.
    2. Deliberate Indifference
    To succeed on a Title IX deliberate indifference claim,
    a plaintiff must show that an official with authority to implement
    corrective measures was aware of and deliberately indifferent to
    an act of discrimination on the basis of sex.             See 
    Gebser, 524 U.S. at 277
    .    "[T]he deliberate indifference must, at a minimum,
    'cause [students] to undergo' harassment or 'make them liable or
    vulnerable' to it."      Porto v. Town of Tewksbury, 
    488 F.3d 67
    , 72
    (1st Cir. 2007) (quoting Davis v. Monroe Cty. Bd. of Educ., 
    526 U.S. 629
    , 645 (1999)).     The discriminatory act must be "so severe,
    pervasive, and objectively offensive that it can be said to deprive
    the victims of access to the educational opportunities or benefits
    provided by the school."     
    Id. (quoting Davis,
    526 U.S. at 650).
    -49-
    We need not delve too deeply into this issue since the
    Does' arguments here rely on their unsuccessful Title IX erroneous
    outcome claim.       The Does contend that gender bias was a motivating
    factor in the outcome of Doe's disciplinary proceedings and then
    again during B.C.'s 2014 review, that this amounted to an act of
    sex discrimination, and that B.C. officials deliberately ignored
    it.    Regarding Doe's disciplinary proceedings, the Does allege
    that Chebator knew back in 2012 that B.C.'s training of hearing
    boards was insufficient, and that deficiency was never corrected,
    meaning that he was aware that the Board in Doe's case was
    insufficiently trained.        Concerning B.C.'s 2014 review, the Does
    argue that James and Mary's letters informed Father Leahy, Jones,
    and Herlihy, of the gender-biased misconduct in Doe's disciplinary
    proceedings,    but    that   these   B.C.   officials,   collectively     and
    individually, decided not to address it.
    While the Does successfully show that B.C. officials
    were   on   notice    of   their   allegation    that   Doe's     disciplinary
    proceedings     produced      an   erroneous    outcome   because     it   was
    influenced     by    gender   bias,   the    Does'   Title   IX     deliberate
    indifference claim is unsuccessful.             Their claim fails for the
    same reasons that we discussed above: they are unable show that
    any of the particular circumstances that allegedly contributed to
    an erroneous outcome were motivated by gender bias.                 
    See supra
    -50-
    III.D.1.   Without underlying acts of discrimination, there can be
    no Title IX deliberate indifference claim.       See City of Los Angeles
    v. Heller, 
    475 U.S. 796
    , 799 (1986) (per curiam) (holding that, in
    suits brought under 42 U.S.C. § 1983, an underlying constitutional
    violation by officers is necessary for a successful municipal
    liability claim); see also Evans v. Avery, 
    100 F.3d 1033
    , 1039-40
    (1st Cir. 1996) (following Heller in the context of a liability
    claim on a theory of deliberate indifference).             Therefore, we
    affirm the district court's grant of summary judgment in favor of
    B.C. as to the Does' Title IX deliberate indifference claim.
    E. Negligence Claims
    The Does also argue that the district court erred in
    dismissing their negligence claims and holding that neither B.C.
    nor any of the individual defendants owed them a duty of care.
    Under Massachusetts law, "[w]hether or not a duty of care existed
    is a question of law for the court."        Gorfinkle v. U.S. Airways,
    Inc., 
    431 F.3d 19
    , 23 (1st Cir. 2005) (citing O'Sullivan v. Shaw,
    
    726 N.E.2d 951
    , 954 (Mass. 2000)).         Such a duty could find its
    source either in "existing social values and customs" or where it
    has been "voluntarily assumed" by a defendant.            Mullins v. Pine
    Manor   Coll.,   
    449 N.E.2d 331
    ,   335-336   (Mass.   1983)   (quoting
    Schofield v. Merrill, 
    435 N.E.2d 339
    , 341 (Mass. 1982) and citing
    Black v. N.Y., N.H., & H.R. Co., 
    79 N.E. 797
    , 798 (Mass. 1907)).
    -51-
    The Does argued below that once the University placed
    Doe under the student disciplinary process, B.C. and the individual
    defendants      owed   Doe    an      independent     duty       to    conduct     such
    disciplinary process with due care.               It is the Does' contention
    that B.C. voluntarily assumed this duty when it accepted federal
    funds   and    followed      Title    IX's     regulations       regarding       sexual
    assault, which created the risk that Doe could be wrongfully
    branded as a perpetrator of sexual assault for the rest of his
    life.
    We, however, do not find that B.C. or the individual
    defendants owed the Does any independent duty of care in this
    context.       As    explained     earlier,      in   the    context      of     school
    disciplinary     hearings,     the     court's    duty      is    to    "review     the
    procedures followed to ensure that they fall within the range of
    reasonable     expectations      of    one   reading     the     relevant      rules."
    
    Cloud, 720 F.2d at 724
    -25.           In turn, "[w]e also examine the hearing
    to ensure that it was conducted with basic fairness."                    
    Id. at 725.
    When an "alleged obligation to do or not to do something that was
    breached could not have existed but for a manifested intent, then
    contract law should be the only theory upon which liability would
    be imposed."        Treadwell v. John Hancock Mut. Life Ins. Co., 
    666 F. Supp. 278
    , 289 (D. Mass. 1987) (citing W. Prosser & W. Keeton,
    Torts § 92, at 656 (5th ed. 1984)).              Neither party disputes that
    -52-
    the contractual relationship between Doe and B.C. arises from the
    Student Guide and the Conduct Board Procedure, and that these
    documents prescribe the disciplinary process.                  Because it is clear
    that Doe's disciplinary proceedings arose from this contractual
    relationship, we hold that B.C. did not owe the Does any additional
    independent      duty        outside     of       their     existing      contractual
    relationship.         Any    remedy     for   a    breach    of   this    contractual
    obligation must sound in contract, not in tort.
    When Massachusetts courts have recognized certain legal
    duties    imposed       on     universities         through       their    "voluntary
    assumption" of care, they have done so narrowly.                       See Nguyen v.
    Mass.    Inst.   of     Tech.,    
    96 N.E.3d 128
    ,    140-41     (Mass.   2018)
    (discussing      the     modern        university-student          relationship    in
    Massachusetts tort law); 
    Mullins, 449 N.E.2d at 336
    (finding that
    a college undertook a duty to protect students against foreseeable
    criminal acts of third parties because the school charged students
    a dormitory fee for this service) (emphasis added).; Bash v. Clark
    Univ., No. 06745A, 
    2006 WL 4114297
    , at *4-5 (Mass. Super. Ct. Nov.
    20, 2006) (finding no duty to protect a student from voluntary
    consumption of illegal drugs because of Mullins's foreseeability
    requirement); Doe v. Westlake Acad., No. 97-cv-2187, 
    2000 WL 1724887
    , at *7 (Mass. Super. Ct. Nov. 21, 2000) (explaining the
    foreseeability limitation of a University's duty of care under the
    -53-
    student-university special relationship); Erickson v. Tsutsumi,
    No. CA199801842B, 
    2000 WL 1299515
    , at *2 (Mass. Super. Ct. May 17,
    2000) (recognizing that Mullins limited its holding to situation
    in which a duty of care is traditionally imposed).                          As there are
    specific rules governing student disciplinary proceedings under
    the existing contractual relationship between Doe and B.C., and
    given Massachusetts courts' narrow construction of the scope of a
    university's voluntary assumption of care, expanding it here would
    be inappropriate.
    As   to    the   individual        defendants,          the    Massachusetts
    Supreme Judicial Court has held that "[a]bsent a legal duty, there
    can be no personal liability."            Lyon v. Morphew, 
    678 N.E.2d 1306
    ,
    1309   (Mass.    1997).      Because      B.C.       did    not    owe     the   Does   any
    independent      duty     outside        of        their        existing     contractual
    relationship,     an    inquiry     as        to    the    individual        defendants'
    negligence becomes irrelevant.            See Lev v. Beverly Enters.-Mass.,
    Inc., 
    929 N.E.2d 303
    , 313 (Mass. 2010) (explaining that violations
    of policies do not create a duty of care in individual defendants
    and are only relevant to the negligence inquiry after a duty of
    care has been established).
    Because we cannot find an independent duty outside of
    the    contractual     relationship      between          the    Does,     B.C.,   or   the
    individual defendants, we affirm the district court's grant of
    -54-
    summary judgment in favor of B.C. and the individual defendants on
    the Does' negligence claims.
    F. Negligent Infliction of Emotional Distress
    The Does also contend that the district court erred when
    it dismissed their claims for negligent infliction of emotional
    distress.     However, for the same reasons discussed above, this
    claim is a nonstarter.         The SJC has summarized that the elements
    of   negligent     infliction      of   emotional     distress      include:   "(1)
    negligence; (2) emotional distress; (3) causation; (4) physical
    harm   manifested     by    objective    symptomatology;       and    (5)    that   a
    reasonable person would have suffered emotional distress under the
    circumstances of the case."             Payton v. Abbott Labs, 
    437 N.E.2d 171
    ,   181   (Mass.      1982).     Because    we    are    unable    to    find    an
    independent duty outside of the contractual relationship between
    the Does and B.C., the Does' claim fails on the first prong.
    Again, the remedy the Does seek is within the confines of a breach
    of contract theory and not in tort.                 We, therefore, affirm the
    district court's grant of summary judgment in favor of B.C. and
    the individual defendants on the Does' negligent infliction of
    emotional distress claims.
    IV. Conclusion
    For   the     foregoing    reasons,     we    affirm    the    district
    court's grant of summary judgment in favor of B.C. as to the Does'
    -55-
    (1) breach of contract claim for the 2014 review; (2) Title IX
    claims, (3) negligence, and (4) negligent infliction of emotional
    distress claims, and vacate the district court's grant of summary
    judgment as to the Does' (1) breach of contract claim for the 2012
    disciplinary proceedings and (2) basic fairness claim.   The case
    is remanded for further proceedings consistent with this opinion.
    Affirmed in Part; Vacated in Part; and Remanded.   Each
    party shall bear its own costs.
    -56-
    

Document Info

Docket Number: 16-2290P

Citation Numbers: 892 F.3d 67

Filed Date: 6/8/2018

Precedential Status: Precedential

Modified Date: 1/12/2023

Authorities (33)

Kate Frazier v. Fairhaven School Committee , 276 F.3d 52 ( 2002 )

Evans v. Avery , 100 F.3d 1033 ( 1996 )

National Foreign Trade Council v. Natsios , 181 F.3d 38 ( 1999 )

United States v. Ilario M.A. Zannino , 895 F.2d 1 ( 1990 )

Neuhoff v. Marvin Lumber & Cedar Co. , 370 F.3d 197 ( 2004 )

Porto v. Town of Tewksbury , 488 F.3d 67 ( 2007 )

rhode-island-department-of-environmental-management-state-of-rhode-island , 304 F.3d 31 ( 2002 )

Kuperman v. Wrenn , 645 F.3d 69 ( 2011 )

Farmers Insurance Exchange v. RNK, Inc. , 632 F.3d 777 ( 2011 )

Theodore L. Leblanc v. Great American Insurance Company , 6 F.3d 836 ( 1993 )

Sheila M. Lyons v. Salve Regina College and Sheila M. ... , 565 F.2d 200 ( 1977 )

michael-k-kelley-and-lenore-t-kelley-v-joseph-w-laforce-robert , 288 F.3d 1 ( 2002 )

Petricca Development Ltd. Partnership v. Pioneer ... , 214 F.3d 216 ( 2000 )

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Hinchey v. Nynex Corp. , 144 F.3d 134 ( 1998 )

Raymond J. Gorman, III v. University of Rhode Island , 837 F.2d 7 ( 1988 )

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United Paperworkers International Union, Local 14, Afl-Cio-... , 64 F.3d 28 ( 1995 )

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