Bose V Rhodes College

Case 2:16-cv-02308-JTF-tmp Document 116 Filed 12/01/17 Page 1 of 34 PageID 970
IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
PRIANKA BOSE, )
)
Plaintiff, )
)
v. ) No. 2:16-cv-02308-JTF-tmp
)
RHODES COLLEGE and )
ROBERTO DE LA SALUD BEA, )
)
Defendants. )
MEMORANDUM IN SUPPORT OF DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT
Defendants Rhodes College and Roberto de la Salud Bea (“Dr. Bea”) (collectively
“Defendants”), pursuant to Rule 56 of the Federal Rules of Civil Procedure, respectfully submit
this Memorandum in Support of Defendants’ Motion for Summary Judgment. As explained
below, there is no genuine dispute as to any material fact and Defendants are entitled to
judgment as a matter of law on all of Plaintiff Prianka Bose’s (“Plaintiff”) claims.
INTRODUCTION
The crux of Plaintiff’s case is that Dr. Bea retaliated against her by falsely accusing her
of cheating in Organic Chemistry II after she rejected his alleged romantic advances toward her.
(See ECF No. 1 at PageID 2-7). Plaintiff’s Complaint asserts numerous claims against Rhodes
College and Dr. Bea. Although the Court dismissed a handful of Plaintiff’s claims in October
2016 (see ECF No. 52 at PageID 632) (dismissing Plaintiff’s Title VII claim against Rhodes and
Plaintiff’s defamation claim against Dr. Bea) and Plaintiff later non-suited her intentional
infliction of emotional distress claim to resist the discovery of her Rhodes College counseling
records (see ECF No. 102), several claims remain. The claims are: (1) a Title IX claim against
Rhodes; (2) a breach of contract claim against Rhodes; (3) tortious interference with business
relations claims against Rhodes and Dr. Bea; (4) a negligent failure to train or supervise claim
against Rhodes; and (5) a Tennessee Consumer Protection Act (“TCPA”) claim against Rhodes. 1
(See ECF No. 1 at PageID 7-18).
In a case such as this one with multiple claims and a long history of dealings among the
parties, it is important to clarify at the outset both what this case is about and what it is not about.
This case is not about whether Dr. Bea asked Plaintiff out to dinner or asked her questions about
her boyfriend, speculation about what could have motivated him to accuse Plaintiff of cheating
other than the evidence introduced before the Honor Council, or any other attempt to re-litigate
the issue of whether Plaintiff cheated in Organic Chemistry II. It is instead about whether
Rhodes College substantially complied with Title IX and its internal processes in its dealings
with Plaintiff. On these issues—which are the only issues properly before the Court—there is no
genuine issue of material fact, and Defendants are entitled to judgment as a matter of law.
FACTUAL BACKGROUND
Plaintiff was accused of cheating by Dr. Bea in his Organic Chemistry II class during fall
semester 2015. He based the accusation in large part on the fact that Plaintiff’s answers to Quiz
5 exactly matched the answers in a fake answer key Dr. Bea created and placed on his laptop to
test his suspicion that Plaintiff was accessing his laptop while taking tests and quizzes early in
his office. At Rhodes College, accusations of cheating are investigated and adjudicated by the
1
Plaintiff’s request for a permanent injunction does not constitute an independent cause of
action; see Goryoka v. Quicken Loan, Inc., 519 F. App’x 926, 929 (6th Cir. 2013), so it is not
addressed in this brief. And because all of Plaintiff’s claims are ripe for summary judgment, the
request for permanent injunctive relief is moot. See Farmer v. Tenn. Air Nat’l Guard, 2005 WL
3484639, at *2 (W.D. Tenn. Dec. 16, 2005) (so explaining).
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Honor Council, a student-led, quasi-judicial body. After a five-hour hearing in which Plaintiff
called a number of witnesses, the Honor Council found Plaintiff “In Violation” of the Honor
Code and ordered her expelled. Plaintiff appealed to the Faculty Appeals Committee (“FAC”),
which is composed entirely of Rhodes faculty members. The FAC upheld the finding.
Plaintiff filed this lawsuit challenging her expulsion on a number of grounds, including
that Dr. Bea accused her of cheating to retaliate against her for rejecting his romantic overtures,
that alleged procedural defects in the Honor Council proceedings made those proceedings unfair,
and that Rhodes did not properly investigate her allegations of inappropriate behavior by Dr.
Bea.
LEGAL STANDARD
Rule 56(a) of the Federal Rules of Civil Procedure provides that the Court “shall grant
summary judgment if the movant shows that there is no genuine dispute as to any material fact
and [that] the movant is entitled to judgment as a matter of law.” Id. To survive a summary
judgment motion, the non-movant must “establish . . . every element of its case on which it will
have the burden at trial.” Lord v. Saratoga Capital, Inc., 920 F. Supp. 840, 846 (W.D. Tenn.
1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 321 (1986)). The filing of a summary
judgment motion accordingly marks the “put up or shut up” point in the case for the non-movant.
See id. at 847 (citing Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir. 1989)).
LAW AND ARGUMENT
Although Plaintiff’s claims are deficient for a number of reasons, one common theme is
that she has failed to adduce any evidence through discovery to support her claims. The specific
reasons why all of Plaintiff’s claims fail are detailed below.
A. Plaintiff’s Title IX Claim Fails Irrespective of the Theory of Liability.
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Based on the language contained in the Complaint, Plaintiff’s Title IX claim is either (1)
one for a sexually hostile educational environment (the Complaint mentions “unlawful sexual
harassment and discrimination on the basis of gender”); (2) one for deliberate indifference (the
Complaint uses the term “deliberate indifference” several times); (3) one for unlawful retaliation
(the Complaint uses the term “retaliatory expulsion” twice in connection with the Title IX
claim), or (4) some combination of all three. Plaintiff’s Title IX claim fails no matter what
theory she asserts.
First, to the extent that Plaintiff is asserting a sexually hostile educational environment
claim, that claim is ripe for summary judgment. Title IX hostile educational environment claims
are analyzed using the same standards as Title VII hostile working environment claims. See
Thomas v. Meharry Med. Coll., 1 F. Supp. 3d 816, 823 (M.D. Tenn. 2014) (so stating).
To proceed on a hostile educational environment claim or a deliberate indifference claim
against an educational institution,2 Plaintiff must offer some concrete evidence of the following:
(1) [S]he was subjected to . . . a sexually hostile environment; (2) she

provided actual notice of the situation to an appropriate person, who was, at
a minimum, an official of the educational entity with authority to take
corrective action and to end discrimination; and (3) the institution’s
response to the harassment amounted to deliberate indifference.
Id. (some alterations and internal quotation marks omitted) (citing Klemencic v. Ohio St. Univ.,
263 F.3d 504, 510 (6th Cir. 2001)).
With respect to the first prong, Plaintiff has a significant burden to satisfy. She “must
allege conduct with sexual overtones that is sufficiently severe or pervasive to affect a term,
condition or privilege of her education and create an abusive [educational] environment.”
Klemencic v. Ohio St. Univ., 10 F. Supp. 2d 911, 915 (S.D. Ohio 1998) (alteration in original and
2
There is no individual liability under Title IX, so Plaintiff cannot sue Dr. Bea directly under
any Title IX-based theory. See Soper v. Hoben, 195 F.3d 845, 854 (6th Cir. 1999).
4
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internal quotation marks omitted). Moreover, “the conduct in question must be judged by both
an objective and a subjective standard.” Id. The question of whether a defendant’s “alleged
conduct rises to a level sufficient to create a hostile [educational] environment is a legal question
that may be addressed on summary judgment.” Id. at 916.
Here, even assuming only for the purpose of summary judgment that Dr. Bea engaged in
the behavior alleged by Plaintiff, that conduct falls far short of the level required to proceed
under a sexually hostile educational environment claim. Plaintiff alleges in the Complaint and
through subsequent testimony (at the preliminary injunction hearing and in her deposition) that
Dr. Bea did the following: (1) he once chatted with Plaintiff in a Rhodes parking lot, where he
seemed excited to see her and asked her several personal questions, including questions about
her social life and whether she had a boyfriend; (2) Plaintiff had to take a few steps back from
Dr. Bea during the encounter because she felt he was getting too close; (3) during that same
encounter, Dr. Bea invited Plaintiff to dinner; (4) Dr. Bea extended his arm toward Plaintiff to
stop her from getting into her car and leaving, but she moved back so that he could not touch her;
(5) Dr. Bea frequently showed up to Plaintiff’s Organic Chemistry II laboratory course in fall
2015 for the express purpose of talking to her, which distracted her; and (6) Dr. Bea, in
November 2015, approached Plaintiff from behind while she was inside Rhodes’ cafeteria
looking at her phone, leaned over her shoulder, and asked her if she was texting her boyfriend.
(See ECF No. 1 at PageID 2-4).
In the course of her deposition testimony, Plaintiff added two additional alleged
incidents, namely: (1) Dr. Bea commented on the way Plaintiff looked, including that she was
“beautiful,” “pretty,” and that he liked her attire; and (2) Dr. Bea asked Plaintiff personal
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questions while she was in her Organic Chemistry II laboratory course in fall 2015, including
questions about her family and what she did over the weekend.
The above-described alleged conduct, even when taken in total, falls far short of an
objectively sexually hostile educational environment. For example, in Klemencic, the district
court concluded that the plaintiff’s allegations that her athletic coach had asked her out twice,
showed her a sexually suggestive photograph and a sexually suggestive article that had been cut
out from a tabloid, gave her rides to and from practice, asked her to pick him up from the airport,
and offered the plaintiff the opportunity to stay in his apartment when the plaintiff’s lease
expired were not sufficiently severe or pervasive to give rise to an objectively sexually hostile
educational environment. See 10 F. Supp. 2d at 917-18 (explaining in relevant part that
“requests to go out . . . are not the stuff of which a hostile environment is made” and collecting
cases in which more serious allegations were deemed insufficient under Title IX).
The Klemencic court, in rejecting the plaintiff’s Title IX claim for a sexually hostile
educational environment, explained as follows:
While the requests to go out may have been inappropriate in the University
context, and offensive to Klemencic personally, mere invitations to “go
out” are not the stuff of which a hostile environment is made, especially in
light of the alleged conduct of purported harassers sued in the cases cited
below, which various courts found did not give rise to a claim of hostile
environment sexual harassment. See, e.g., Zaring Homes, Inc., 104 F.3d at
822 (although Plaintiff subjected to offensive and inappropriate verbal
comments and unprofessional conduct, Title VII was “not designed to
purge the workplace of vulgarity”); Baskerville v. Culligan Int’l Co., 50
F.3d 428, 430 (7th Cir. 1995) (nine allegedly unlawful incidents of verbal
conduct spread over seven months could not reasonably be thought to
constitute sexual harassment under Title VII); Koelsch v. Beltone
Electronics Corp., 46 F.3d 705 (7th Cir. 1995) (held supervisor who
stroked Plaintiff's leg on one occasion, grabbed her buttocks on a separate
occasion, told her that he found her attractive, and twice asked her out on
dates, did not commit acts which were actionable); Weiss v. Coca-Cola
Bottling Co. of Chicago, 990 F.2d 333, 337 (7th Cir. 1993) (held actions of
supervisor unactionable [sic] even though he called subordinate “dumb
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blonde,” placed “I love you” signs in her work area, asked her for a date,
put his hands on her shoulder, and tried to kiss her); Saxton v. American
Tel. & Tel. Co., 10 F.3d 526, 534 (7th Cir. 1993) (held the following acts
do not constitute sexual harassment: supervisor made inappropriate
remarks, kissed and repeatedly touched the plaintiff, and chased her around
a forest preserve); Stacy v. Shoney’s Inc., 955 F. Supp. 751, 755-56 (E.D.
Ky. 1997) (while conduct which included some inappropriate touching was
immature, inappropriate and boorish, it did not constitute offensive conduct
actionable as harassment); Ballou v. Univ. of Kan. Med. Ctr., 871 F. Supp.
1384 (D. Kan. 1994) (held defendant’s actions did not constitute sexual
harassment where supervisor defendant asked plaintiff about her interest in
a romantic relationship, asked her to kiss him on her birthday, often stared
at her and followed her); Freedman v. Am. Standard, 1986 WL
7825 (D.N.J. July 11, 1986) (one obscene message, rudeness, and an
accepted refusal of a date do not equate to sexual harassment which creates
a hostile or offensive environment), aff’d, 833 F.2d 304 (3rd Cir. 1987).
Id. at 917-18 (some internal citations altered or omitted); accord Leffler ex rel. Leffler v.
Memphis City Sch. Bd. of Educ., 2005 WL 2008234, at *4 (W.D. Tenn. Aug. 22, 2005) (granting
summary judgment to the defendant on a Title IX hostile educational environment claim where
the alleged harasser “touched [the plaintiff] on two occasions and made a sexually related
statement” because the alleged conduct was “not sufficiently severe or pervasive to amount to a
violation of Title IX”); Petrone v. Cleveland St. Univ., 993 F. Supp. 1119, 1128-29 (N.D. Ohio
1998) (no actionable harassment under Title IX where the plaintiff alleged that her professor
discussed his romantic relationships with her, touched her leg once without her permission,
asked plaintiff to go on walks with him, asked plaintiff to go to dinner with him, and sent her
romantic letters and poems that he had written for her).
The result should be the same here. Plaintiff has never alleged that Dr. Bea discussed
overtly sexual matters with her. Nor has Plaintiff alleged that Dr. Bea ever touched her, much
less in an inappropriate way. Plaintiff has never alleged that Dr. Bea used sexually crude
language in her presence. Asking personal questions and inviting someone to dinner, even if the
questions are annoying and the invitations are unwanted, are not enough to satisfy the objective
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prong of the sexually hostile educational environment framework. Accordingly, Plaintiff cannot
proceed on a Title IX hostile educational environment claim.
Any Title IX deliberate indifference claim by Plaintiff also fails as a matter of law. A
deliberate indifference claim requires Plaintiff to offer concrete evidence that the “institution’s
response amounted to deliberate indifference.”3 Thomas, 1 F. Supp. 3d at 823 (internal quotation
marks omitted). This means that, at minimum, Plaintiff must show that the educational
institution had “‘actual notice of, and [was] deliberately indifferent to, the teacher’s
misconduct.’” Phillips v. Anderson Cnty. Bd. of Educ., 2006 WL 3759893, at *9 (E.D. Tenn.
Dec. 19, 2006) (quoting Gebser, 524 U.S. at 277).
Here, Plaintiff has no evidence that she was exposed to any further harassment by Dr.
Bea after his alleged conduct was reported to Rhodes College. Plaitniff, moreover, is the only
Rhodes College student who has ever alleged that Dr. Bea engaged in conduct that might (if the
allegations were substantiated) violate Title IX. These undisputed facts are fatal to any Title IX
deliberate indifference claim. See Thomas, 1 F. Supp. 3d at 827 (“[B]ecause Plaintiff did not
continue to experience sexual harassment once he put Defendant on notice of Dr. Stines’s
conduct, there is no basis to find Defendant’s response to Plaintiffs [sic] sexual harassment
report amounted to deliberate indifference.”); Moore v. Murray St. Univ., 2013 WL 960320, at
*5 (W.D. Ky. Mar. 12, 2013) (dismissing a Title IX claim in a case involving the alleged rape of
a student-athlete where the plaintiff failed to allege that she had been subjected to any unlawful
harassment or touching after notifying her school of the alleged rape); M.D. v. Bowling Green
3
This is because the “Supreme Court [has] held that vicarious liability [is] not available under
Title IX and that a supervisory entity must have had knowledge of and been deliberately
indifferent to an employee’s discriminatory actions.” Foster v. Michigan, 573 F. App’x 377, 389
(6th Cir. 2014) (citing Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290-91 (1998)); see
also Doe v. Rust Coll., 2014 WL 12670340, at *1 (N.D. Miss. Sept. 29, 2014) (“Title IX does not
contemplate vicarious liability.”).
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Indep. Sch. Dist., 2017 WL 390280, at *6 n.4 (W.D. Ky. Jan. 27, 2017) (“Courts have held that a
plaintiff must experience further harassment after a defendant acquires knowledge of the initial
harassment for his or her [Title IX deliberate indifference] claim to be viable.”). Accordingly,
any Title IX deliberate indifference claim by Plaintiff should be dismissed.4
Finally, to the extent that Plaintiff’s Title IX claim is actually one for unlawful retaliation
under Title IX, that claim fails as well. The decision about which Plaintiff complains (the so-
called “retaliatory expulsion”) was the result of the Honor Council’s conclusion—after a five-
hour hearing in which Plaintiff offered the testimony of several witnesses (to wit, Chelsea
Dezfuli, Matthew Chapman, Vinay Bose, Joel Shimkus, and Brian Lawrence)—that she should
be expelled for academic misconduct. On appeal, the FAC reviewed the case, including the new
allegations of sexual harassment, and affirmed the decision of the Honor Council. Plaintiff
continues to disagree with the result reached by the Honor Council. Her disagreement with the
outcome, however, is legally irrelevant. As explained below, Plaintiff cannot satisfy her burden
of establishing a prima facie case of retaliation, nor can she show that Rhodes’ legitimate, non-
discriminatory, and non-retaliatory reason for the adverse action is somehow pretextual.
To establish a prima facie case of retaliation, Plaintiff must show that: (1) she engaged in
statutorily protected activity; (2) her exercise of rights was known to Rhodes; (3) she was
subjected to the adverse action contemporaneously with, or subsequent to, the protected activity;
and (4) there is a causal connection between the protected activity and the adverse educational
4
Another deficiency in any Title IX deliberate indifference claim is that Rhodes College took
action and investigated Plaintiff’s Title IX report; Plaintiff concedes this fact in the Complaint.
(See ECF No. 1 at PageID 13) (“Whitney Harmon, an independent investigator retained by
Rhodes, did conduct an investigation.”). Title IX “does not give victims a right to make
particular remedial demands,” nor does it require an educational institution to “engage in
particular disciplinary action to avoid Title IX liability.” See Bowling Green Indep. Sch. Dist.,
2017 WL 390280, at *5 (internal quotation marks omitted).
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action. See Thomas, 1 F. Supp. 3d at 827 (listing the elements). The purportedly retaliatory
action being challenged by Plaintiff in this lawsuit is the Honor Council’s decision to expel her
for academic misconduct, as upheld by the FAC. (See ECF No. 1 at PageID 6).
Any Title IX retaliation claim asserted by Plaintiff is ripe for summary judgment because
Plaintiff cannot establish the requisite causal connection (i.e., the fourth element of a prima facie
case). Plaintiff has absolutely no evidence that the Honor Council harbored some retaliatory
motive toward her. In fact, the evidence in the record demonstrates the exact opposite. The
Honor Council heard a significant amount of proof at the hearing and, after hearing that proof,
concluded that Plaintiff had cheated. There is simply no evidence that the Honor Council was
motivated by any unlawful motive, much less a retaliatory one, in reaching that conclusion. The
lack of any causal connection is fatal to Plaintiff’s Title IX retaliation claim. See Weaver v. Ohio
St. Univ., 71 F. Supp. 2d 789, 795 (S.D. Ohio 1998) (granting summary judgment to a university
on a Title IX retaliation claim where, among other failures, the plaintiff “failed to produce
evidence sufficient to raise a genuine issue of material fact” regarding any causal connection
between her complaints to a peer-review committee and her subsequent termination).
The plain fact is that there is no evidence whatsoever that Rhodes College, via the Honor
Council or the FAC, harbored any retaliatory animus towards Plaintiff. In order to avoid this
painful truth, Plaintiff has asked the Court to focus on Dr. Bea’s alleged retaliatory motive in
order to establish Title IX liability, but such an argument is unavailing. Dr. Bea cannot be sued
under Title IX, so his alleged personal motivation is immaterial unless it can be somehow
imputed to the Honor Council. Plaintiff may claim that Dr. Bea so dominated the Honor Council
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proceedings that his (alleged) retaliatory motive5 should be imputed to the entire Honor Council
under a Title VII “cat’s paw” theory of liability.
Under the cat’s paw theory, “the discriminatory [or retaliatory] animus of a
nondecisionmaker is imputed to the decisionmaker where the former has singular influence over
the latter and uses that influence to cause the adverse employment action.” Waters v. City of
Chicago, 580 F.3d 575, 586 n.2 (7th Cir. 2012) (internal quotation marks omitted). The theory
“is steeped in agency principles which are applied in the Title VII context.” Id. As a result, the
cat’s paw theory necessarily involves the application of respondeat superior (or vicarious)
liability. See id. (“Imputing a nondecisionmaker’s motive to a municipal employer sounds a lot
like respondeat superior liability.”).
But, unlike Title VII, the “Supreme Court [has] held that vicarious liability [is] not
available under Title IX and that a supervisory entity must have had knowledge of and been
deliberately indifferent to an employee’s discriminatory actions.” Foster, 573 F. App’x at 389
(citing Gebser, 524 U.S. at 290-91). The result is that the principles of vicarious liability
(including respondeat superior liability)—which do apply in the Title VII context in appropriate
circumstances—do not apply in the Title IX context. See Phillips, 2006 WL 3759893, at *13
(“Thus, even though Gebser and Davis were both [Title IX] sexual harassment cases, the Court
concludes that the Supreme Court’s rationale for rejecting the use of agency principles in those
cases, which was based upon the Court’s analysis of the purpose and structure of Title IX
generally and as a whole, is applicable to any action brought pursuant to the statute [Title IX].”);
see also Rust Coll., 2014 WL 12670340, at *2 (“Based on current and controlling case law and
5
Plaintiff has adduced no evidence that Dr. Bea accused her of cheating for any reason other
than he believed that she had done so. Her attempt to impute ulterior motives to him is nothing
but rank speculation. She therefore cannot establish pretext with regard to Rhodes’ legitimate
non-discriminatory reason for her expulsion.
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authorities, Plaintiff’s pleading of vicarious liability [under Title IX] fails to state a claim upon
which relief may be granted.”). Therefore, any alleged retaliatory motive of Dr. Bea cannot, as a
matter of law, be imputed to Rhodes.
Finally, for the sake of completeness, Rhodes addresses Plaintiff’s allegations concerning
the timing of the creation of the fake answer key. Although no mention is made of this in her
Complaint, Plaintiff now claims that Dr. Bea must have created the fake answer key for Quiz 5
after the fact to match her incorrect answers on Quiz 5. This ludicrous bit of speculation was
concocted out of pure desperation because it is the only explanation for how Plaintiff’s answers
matched Dr. Bea’s fake answer key other than cheating. Plaintiff floated this theory both
before the Honor Council and the FAC, to no avail. Dr. Bea testified at the Honor Council
hearing, in the preliminary injunction hearing, and in his deposition that he created the fake
answer key during the Thanksgiving holiday before Plaintiff took Quiz 5 on December 2, 2015.6
Plaintiff can offer only speculation in response to Dr. Bea’s testimony, and “mere speculation
will not overcome a motion for summary judgment.” Lamping v. Walraven, 30 F. App’x 577,
581 (6th Cir. 2002). Plaintiff’s Title IX claim is therefore ripe for summary judgment
irrespective of the theory (or theories) upon which she seeks relief.
B. Plaintiff’s Breach of Contract Claim Fails for Multiple Reasons.
Plaintiff asserts a breach of contract claim against Rhodes College, but that claim fails for
multiple reasons. In particular, Plaintiff contends in the Complaint that the Honor Council
6
Both Plaintiff’s and Defendants’ forensic experts who examined Dr. Bea’s laptop concluded
that he created the fake answer key on November 28, 2015. The examination of both experts
also showed that Dr. Bea modified the document on December 2, 2015, but neither could
determine from the forensic record what the modification was. Dr. Bea has testified that he
opened the fake answer key and reformatted it so it would fit on one sheet of paper to print out
and use for grading, which would account for the modification. Plaintiff, more importantly, has
no evidence whatsoever to the contrary.
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breached various provisions of its Constitution. (See ECF No. 1 at PageID 9) (asserting a claim
for “Breach of Contract as to the Honor Council Hearing Procedures” and contending that
“Rhodes failed to adhere to the very Honor Council Constitution upon which it relied to justify
Plaintiff’s expulsion”). Plaintiff also asserts that Rhodes College’s failure to offer her a full-
blown, post-expulsion Title IX hearing amounts to a breach of contract. (See id. at PageID 13)
(“Rhodes [sic] failure to afford her the process assured her under the Title IX Handbook is a
breach of contract, and Plaintiff’s claims therefore have a strong probability of success.”). For
the reasons explained below, both assertions lack merit.
The Tennessee Supreme Court has never expressly articulated the “standard which [sic]
should be applied in a dispute arising out of the university-student relationship.” Anderson v.
Vanderbilt Univ., 450 F. App’x 500, 502 (6th Cir. 2011) (per curiam) (internal quotation marks
omitted). Still, in analyzing breach of contract claims asserted by students against educational
institutions, federal courts within the Sixth Circuit have “assumed that the Tennessee courts
‘would adopt the deferential standard of reasonable expectation—what meaning the party
making the manifestation, the university, should reasonably expect the other party to give it.’”
Id. (quoting Doherty v. S. Coll. of Optometry, 862 F.2d 570, 577 (6th Cir. 1988)). Relatedly,
federal courts in analyzing such claims do not ask whether an educational institution complied
strictly with each and every handbook (or policy) provision, but instead ask only whether the
educational institution “abused its discretion—whether it acted unreasonably, arbitrarily, or
unconscionably.” See Valente v. Univ. of Dayton, 438 F. App’x 381, 385 (6th Cir. 2011)
(emphasis in original) (applying the abuse-of-discretion standard and explaining that “[c]ontrary
to Valente’s assertions, the issue is not whether the Law School strictly adhered to each of the
Honor Code’s procedural rules, or whether it could have provided a better hearing”); accord
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Faparusi v. Case W. Reserve Univ., 2017 WL 4417677, at *6 (6th Cir. Oct. 4, 2017) (same).
And there is a “presumption of honesty and integrity to which a [college or university]
disciplinary committee is entitled.” Anderson v. Vanderbilt Univ., 2010 WL 2196599, at *14
(M.D. Tenn. May 27, 2010) (so explaining in a case involving a breach of contract claim by a
former student where he had been found guilty of an Honor Code violation), aff’d, 480 F. App’x
500 (6th Cir. 2011) (per curiam). The inquiry can be boiled down to whether an educational
institution “substantially complied” with its own procedures or rules. See id. at *13 (so stating).
A breach of contract claim also requires a plaintiff to offer evidence of all of the elements
of a contract. Those elements are: (1) the existence of an enforceable contract (which requires a
meeting of the minds, adequate consideration, and sufficiently definite terms); (2)
nonperformance amounting to a breach; and (3) damages proximately resulting from the breach.
See id. at *11 (applying Tennessee law). Thus, federal courts (1) require a plaintiff to establish
all of the elements of a breach of contract claim and (2) apply a deferential standard of review to
an educational institution’s application of its own policies, procedures, rules, and the like.
Plaintiff alleges that the Honor Council violated its Constitution (and thereby breached a
contract with Plaintiff) in the following ways: (1) the Honor Council did not act with “complete
impartiality,” as required by Article IV, section 3(A)(2) because one member of the Honor
Council (there were over a dozen Honor Council members present at the December 2015 Honor
Council hearing), Zain Virk, who had served as a research assistant for Dr. Bea, did not recuse
himself (see ECF No. 1 at PageID 9); (2) Dr. Bea ran afoul of Article IV, section 2(F) by
disclosing to some of his fellow Chemistry professors before the Honor Council hearing that he
suspected that Plaintiff had been cheating in his class (see id. at PageID 10); (3) Dr. Bea should
have been expelled from the Honor Council hearing pursuant to Article IV, section 3(A)(4)
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because he was unduly disruptive (id.); (4) the Honor Council’s President, Regan Adolph, “asked
questions and made comments” during the hearing (id.); and (5) the Honor Council reached the
wrong result under the “clear and convincing evidence” standard by crediting the testimony and
evidence of Dr. Bea as opposed to that of Plaintiff and her witnesses (id. at PageID 11).
All of Plaintiff’s theories regarding the Honor Council’s purported breaches of its
Constitution are meritless. First, the Honor Council Constitution commits to the sound
discretion of the President the decision of whether a particular Honor Council member must
recuse himself from an Honor Council hearing. The relevant provision (Article IV, section
3(A)(2)) says: “Any Council member who believes that his or her participation in any aspect of
the . . . hearing process constitutes a conflict of interest must report the potential conflict of
interest to the Honor Council President, who shall decide whether that member should recuse
himself. . . .” (Id.)
As Ms. Adolph stated in the Honor Council’s response to Plaintiff’s FAC appeal, Ms.
Adolph asked Mr. Virk both before and during the hearing if he could be impartial despite
working in Dr. Bea’s lab and he told her that he believed he could be. She therefore did not
order his recusal. This exercise of discretion by Ms. Adolph as Honor Council President—an
exercise of discretion that the Constitution expressly contemplates—does not even come close to
a breach of the Honor Council Constitution, much less an actionable breach of contract.
The same is true of the other purported breaches identified by Plaintiff in her Complaint.
Plaintiff’s assertion that Dr. Bea violated the Honor Council Constitution by admitting that “he
spoke to other Chemistry professors about his allegations that Plaintiff was cheating and
stealing” (ECF No. 1 at PageID 10) lacks merit. Before the Honor Council hearing, Dr. Bea
asked two of his colleagues (Dr. Kimberly Brien and Dr. Larryn Peterson) whether their
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academic public folders contained any information that Plaintiff could have relied on to obtain
her answers to Quiz 5. Plaintiff claimed in her FAC appeal that any discussion of Plaintiff and
Quiz 5 outside of the Honor Council proceedings violated confidentiality. In the Honor
Council’s response to the appeal, Ms. Adolph stated: “Regarding the breach of confidentiality of
Dr. Bea concerning a conversation he had with other members of the Chemistry department
before the hearing, he was not under the oath read aloud during the hearing to keep those matters
confidential. Such conversations between professors during a case, but not a hearing, are
discouraged but do occur.” Dr. Bea had not taken the Oath of Privacy when he asked Dr. Brien
and Dr. Peterson about their academic public folders, so there could be no breach of contract
from Dr. Bea’s pre-hearing questions to them.
As to Dr. Bea’s supposedly disruptive behavior during the Honor Council hearing, the
Honor Council Constitution at Article IV, section 3(A)(1) makes clear that the “President of the
Honor Council shall preside” over hearings. (Id.) The question of whether to remove someone
from the hearing is therefore committed to the sound discretion of the President. Even assuming
only for the purpose of summary judgment that Dr. Bea was occasionally aggressive in
questioning witnesses, Ms. Adolph exercised her discretion as President not to remove Dr. Bea
from the hearing. A fair reading of the hearing transcript, moreover, does not support Plaintiff’s
assertion that Dr. Bea acted so inappropriately during the hearing such that the drastic step of
removal might have been warranted. Finally, Plaintiff has not offered any evidence to support
her contention that her “witnesses were not able to testify fully on behalf of Plaintiff” because of
Dr. Bea’s alleged behavior. (ECF No. 1 at PageID 10). This alleged breach of the Honor
Council Constitution has zero merit.
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Plaintiff’s assertion that Ms. Adolph violated the Honor Council Constitution when she
“asked questions and made comments” (id.) is similarly bereft of merit. Again, the Honor
Council Constitution defines the role of the President at Honor Council hearings; specifically, the
President “shall preside” at such hearings. (Honor Council Constitution at Article IV, section
3(A)(1)). Nothing in the Honor Council Constitution prohibits the President from asking
questions or making comments. Taking Plaintiff’s argument to its logical conclusion, a judge
presiding over a trial could not ask questions, make clarifying comments, or otherwise do
anything to maintain order or move the proceedings along. The Honor Council Constitution
does not cabin the President’s role in the manner that Plaintiff alleges. Accordingly, this alleged
breach is not a breach at all.
Plaintiff also tries to manufacture a breach of contract argument based on her contention
that the Honor Council, by rejecting her theory of the case and crediting the proof offered by Dr.
Bea, failed to abide by the “clear and convincing evidence” standard. (See ECF No. 1 at PageID
11) (“Other than the fake answer key, the only evidence of cheating presented was Dr. Bea’s
testimony, much of which was mere supposition.”). This argument misses the mark because it is
the Honor Council’s job to resolve conflicting evidence in the process of deciding whether a
student should be found “In Violation” of the Honor Code. (See Honor Council Constitution at
Article IV, section 3(A)(10)) (“The Council’s finding of “In Violation” or “Not in Violation”
shall be based only on the merits and facts of the case at hand.”). Crediting an accuser over an
accused is not a breach of the Honor Council Constitution because there was (and is) substantial
evidence that Plaintiff cheated.
Although Plaintiff in her Complaint tries to minimize the impact of the evidence upon
which the Honor Council relied (i.e., the fake answer key and the fact that Plaintiff’s answers
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matched those on the fake answer key, which Plaintiff’s own experts (Brian Lawrence and Joel
Shimkus) found troubling), it was the Honor Council’s purpose at the hearing to decide whether
Plaintiff had in fact violated the Honor Code. The fake answer key was (and remains) a
powerful piece of evidence, and the Honor Council did not breach its Constitution by treating the
fake answer key (along with Dr. Bea’s testimony) as clear and convincing evidence that Plaintiff
had cheated. Accord Anderson, 450 F. App’x at 502 (“But the record before the Honor Council
contained ample evidence to support its decision under a ‘clear and convincing’ standard, in
particular the fact that Anderson’s answers were almost identical to another student’s and could
not be explained by the notations he made on his test or his post hoc reasoning.”).
Moreover, a review of the Honor Council Constitution demonstrates that the Honor
Council (and, by extension, Rhodes College) substantially complied with its terms, which is all
that is required under the law. See, e.g., Valente, 438 F. App’x at 385 (“[T]he issue here is not
whether the Law School strictly adhered to each of the Honor Code’s procedural rules, or
whether it could have provided a better hearing, but rather whether it abused its discretion—
whether it acted unreasonably, arbitrarily, or unconscionably.”) (emphasis in original). Plaintiff
indisputably received the benefit of an extensive pre-hearing investigation, pre-hearing notice of
the charges pending against her and the packet of evidence assembled by the Honor Council’s
investigator (Mitchel Trychta), the opportunity to present numerous witnesses (including two
experts) in her defense at the hearing, and the ability to take an appeal from the Honor Council’s
adverse decision, which she exercised. The law does not require more.
And although Plaintiff complains that Ms. Adolph refused to allow her to recall one of
her witnesses (Chelsea Dezfuli) after the hearing concluded to bolster her eleventh-hour
allegations that Dr. Bea had acted inappropriately toward her, Plaintiff fails to mention in her
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Complaint that, when she and her lawyers appealed the Honor Council’s decision to the FAC,
the FAC received and considered all of Plaintiff’s alleged evidence of Dr. Bea’s inappropriate
behavior. The FAC, just like the Honor Council, found the evidence of Plaintiff’s cheating to be
clear and convincing. Because the Honor Council substantially complied with the terms of its
Constitution and did not act arbitrarily in finding that Plaintiff had violated the Honor Code,
Plaintiff’s breach of contract claim as it relates to those proceedings fails as a matter of law.
To the extent that Plaintiff intends to assert a separate breach of contract claim relating to
the lack of a Title IX hearing,7 any such claim also fails. Title IX “does not give victims a right
to make particular remedial demands,” nor does it require an educational institution to “engage
in particular disciplinary action to avoid Title IX liability.” See Bowling Green Indep. Sch. Dist.,
2017 WL 390280, at *5 (internal quotation marks omitted). Plaintiff admits in her Complaint,
moreover, that Rhodes College retained an outside attorney, Whitney Harmon, to perform an
independent investigation of the Title IX report involving Plaintiff’s allegations of inappropriate
conduct by Dr. Bea. (See ECF No. 1 at PageID 13). Ms. Harmon’s investigation was not
perfunctory; the evidence shows that she interviewed the following persons at length during the
course of her investigation: (1) Plaintiff; (2) Dr. Bea; (3) Dr. Brien; (4) Chelsea Dezfuli; (5)
Lauren Sylwester (a friend); and (6) Emma Barr (another friend). It was only after interviewing
all of these witnesses and completing her investigation that Rhodes concluded that Plaintiff’s
allegations of harassment and retaliation were not credible.
Plaintiff relies on a single provision in Rhodes College’s Title IX and Nondiscrimination
Handbook—“[t]he result of an investigation of a Claim will be presented at a Formal Resolution
7
The Complaint is not clear in this regard; the reference to the lack of a Title IX hearing occurs
only in the context of Plaintiff’s request for injunctive relief. (See ECF No. 1 at PageID 13-14)
(“Rhodes [sic] failure to afford her the process assured her under the Title IX Handbook is a
breach of contract, and Plaintiff’s claims therefore have a strong probability of success.”).
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Hearing and/or may be presented at an Informal Resolution Conference”—as support for her
argument that Rhodes College committed an actionable breach of contract by failing to offer her
a full-blown Title IX hearing after she had already been expelled for cheating. (See id. at PageID
12). A technical violation of the Title IX and Nondiscrimination Handbook, however, does not
amount to a failure by Rhodes College to substantially comply with its policies and procedures
pertaining to Title IX, particularly where (as here) the allegations were thoroughly investigated
by an outside attorney. Accordingly, Plaintiff cannot show a breach of contract because Rhodes
College substantially performed its obligations to the extent that the Title IX and
Nondiscrimination Handbook even constitutes an enforceable contract.
Additionally, Plaintiff has never articulated, much less offered any evidence, of what
damages she might have incurred as a direct result of the lack of a Title IX hearing. This dooms
any breach of contract claim founded on the lack of a separate Title IX hearing. Plaintiff had
already been expelled from Rhodes College by the time that the Title IX investigation occurred,
and her theory of damages as pleaded in her Complaint is that she was injured as a result of her
expulsion from Rhodes College. The expulsion occurred because the Honor Council found that
Plaintiff had violated the Honor Code. It is accordingly unclear how the lack of a Title IX
hearing, standing alone, resulted in concrete damages to Plaintiff.
To get past summary judgment, Plaintiff must offer some offer some evidence of actual
damages that flowed directly from the lack of a Title IX hearing. See Kindred v. Nat’l Coll. of
Bus. & Tech., Inc., 2015 WL 1296076, at *6 (Tenn. Ct. App. Mar. 19, 2015) (“The party seeking
damages has the burden of proving them.”) (internal quotation marks omitted). This she cannot
do. Where the existence of damages is speculative, a breach of contract claim fails. See Poynter
v. Gen. Motors Corp., 2007 WL 3341923, at *3 (E.D. Tenn. Nov. 9, 2007) (applying Tennessee
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law); see also Kindred, 2015 WL 1296076, at *7 (holding that purely speculative damages and a
failure to offer evidence of any damages flowing directly from an alleged breach are fatal to a
contract claim). Accordingly, any breach of contract claim relating to the lack of a Title IX
hearing should be dismissed.
C. Plaintiff’s Tortious Interference Claims Are Deficient as a Matter of Law.
Plaintiff asserts tortious interference with business relations claims against Rhodes (see
ECF No. 1 at PageID 15) and Dr. Bea (see id. at PageID 18).8 The claims, however, are pleaded
differently in the Complaint. As to the claim against Rhodes College, Plaintiff alleges that
Rhodes tortiously interfered with a supposed business relationship that she had with George
Washington University’s Medical School (“GW Medical School”) when Rhodes College
“publicized that Plaintiff was involuntarily withdrawn from Rhodes to George Washington
School of Medicine and Health Sciences, [thereby] interfering with Plaintiffs [sic] early
acceptance status at George Washington.” (See id. at PageID 15) (“Rhodes intentionally
interfered with or caused a breach of George Washington University’s contractual relationship
with Plaintiff through its conduct.”).
Plaintiff’s claim against Dr. Bea, by contrast, is that he tortiously interfered with
Plaintiff’s contractual relationship with Rhodes when he allegedly made “false and misleading
statements” to the Honor Council regarding Plaintiff’s academic misconduct. (Id. at PageID 18)
(“Dr. Bea’s actions were intended to and did produce a breach in the contractual and business
relationship between Rhodes [sic] and Rhodes.”). Both claims fail.
To state a claim for intentional (or tortious) interference with business relations under
Tennessee law, the following elements are required: (1) an “existing business relationship with
8
This is the only remaining claim against Dr. Bea.
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specific third parties or a prospective [business] relationship with an identifiable class” of third
parties; (2) the “defendant’s knowledge of that relationship and not a mere awareness of the
plaintiff’s business dealings with others” as a general matter; (3) the “defendant’s intent to cause
the breach or termination” of the plaintiff’s business relationship; (4) the defendant’s “improper
motive or improper means” in causing such breach; and (5) damages that flow as a proximate
result of the defendant’s tortious interference. Thompson v. Hayes, 748 F. Supp. 2d 824, 833
(E.D. Tenn. 2010) (emphasis in original). Where an existing business relationship is already
governed by a contract, the tort does not apply. See id. (explaining that, among other things, the
tort “is concerned only with intentional interference with prospective contractual relations, not
yet reduced to contract”) (internal quotation marks omitted).
The result is that Plaintiff has pleaded herself out of Court on her claims against Rhodes
and Dr. Bea. Taking the claims out of order, the claim that Dr. Bea intentionally interfered with
Plaintiff’s business relationship with Rhodes cannot go forward because the relationship between
Plaintiff and Rhodes was contractual in nature. Plaintiff’s own Complaint so alleges (see ECF
No. 1 at PageID 9-14) (asserting a breach of contract claim against Rhodes College), and courts
applying Tennessee law have held that the relationship between a college and its students is
contractual in nature. See Doherty, 862 F.2d at 577 (discussing Tennessee law); Anderson, 2010
WL 2196599, at *11 (explaining that the relationship between a college and its students is
contractual in nature). As explained in Thompson, the tort of intentional interference with
business relations applies only to “those relationships not amounting to a formal contract.” See
748 F. Supp. 2d at 833 (internal quotation marks omitted). The claim against Dr. Bea should be
dismissed for this reason.
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As for the claim against Rhodes, it should be dismissed as well. The Complaint offers
incomplete information regarding the relationship among GW Medical School, Rhodes College,
and Plaintiff. Specifically, GW Medical School and Rhodes are each parties to a 2012 contract
that governs the terms of the Rhodes College Early Selection Program with GW Medical School
(“Early Selection Program”). GW Medical School and Rhodes College are also parties to a 2012
Memorandum of Understanding (“MOU”) governing the Early Selection Program. One reason
why Plaintiff’s tortious interference claim against Rhodes fails is because the 2012 contract
requires Rhodes, for each of a student’s four remaining semesters, to certify to GW Medical
School that (among other things) there have been no substantiated allegations of inappropriate
academic comportment by the student. Here, the Honor Council found Ms. Bose “In Violation”
of the Honor Code, and Rhodes was accordingly obligated by contract to report that fact to GW
Medical School. A claim for tortious interference with business relations cannot go forward
when the purportedly tortious conduct involves the exercise of a contractual right by the alleged
tortfeasor. See Franklin Tractor Sales v. New Holland N. Am., Inc., 106 F. App’x 342, 347 (6th
Cir. 2004) (“Without such a limitation, we conclude that the [sic] New Holland’s invocation of
its contract rights negates the tortious interference claim.”).9
Plaintiff’s tortious interference claim against Rhodes fails for the additional reason that
the 2012 contract and the MOU set forth the terms on which Rhodes students (including
Plaintiff) may apply for, be selected for, and remain eligible for, the Early Selection Program.
Plaintiff could not have participated in the Early Selection Program but for the existence of the
9
The Sixth Circuit in Franklin Tractor Sales was applying Ohio law, but Ohio law and
Tennessee law are substantially identical in this area because both states follow the Restatement
(Second) of Torts as to tortious interference claims and privileges thereunder. See Havensure,
L.L.C. v. Prudential Ins. Co. of Am., 595 F.3d 312, 315-16 (6th Cir. 2010) (Ohio follows the
Restatement (Second) of Torts); Molloy v. Hrisko, 2015 WL 4323028, at *9-10 (Tenn. Ct. App.
July 14, 2015) (Tennessee follows the Restatement (Second) of Torts).
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2012 contract and the MOU between GW Medical School and Rhodes College. A party cannot
tortiously interfere with its own contracts or business relationships. See Aldridge v. City of
Memphis, 404 F. App’x 29, 43 (6th Cir. 2010) (applying Tennessee law). Accordingly, because
the business relationship as alleged by Plaintiff in her Complaint is governed in part by the 2012
contract and the MOU between GW Medical School and Rhodes College, Plaintiff’s tortious
interference claim against Rhodes College fails.
The tortious interference claims against Rhodes and Dr. Bea also fail because Plaintiff’s
alleged damages are impermissibly speculative under Tennessee law. To survive summary
judgment on a tortious interference with business relations claim, there must be some concrete
evidence of “damages resulting from [the] tortious interference.” Thompson, 748 F. Supp. 2d at
833. The theory of damages in the Complaint is that, because Plaintiff was wrongfully expelled
from Rhodes College for cheating, she has been damaged by the “lost income that she would
have earned as a medical doctor.” (ECF No. 1 at PageID 19). But these alleged damages are too
speculative as a matter of Tennessee law. Two cases are instructive on this point. The first
involved a breach of contract claim by a medical resident against his former medical school. In
that case, the plaintiff contended that he had been damaged by the medical school’s failure to
renew his residency contract and by denying his appeal of the non-renewal. See Canady v.
Meharry Med. Coll., 811 S.W.2d 902, 905 (Tenn. Ct. App. 1991). The Tennessee Court of
Appeals affirmed the trial court’s conclusion that, among other deficiencies, the plaintiff’s
alleged contract-based damages were too speculative:
The damages claimed by plaintiff are based upon the theory that, if
Meharry had meticulously followed its grievance procedure, he would have
been successful in his defense against charges and in prosecution of his
complaint; and that as a result of such success, he would have been
reappointed for an additional year; that, at the conclusion of that year, his
services would have received approval and certification; that plaintiff
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would thereby have attained admission to a further specialized residency

which he would have successfully completed; and that he thereafter would
have engaged in a successful and profitable specialized surgical practice.
This Court agrees with the Trial Judge that the proximate relationship
between the irregularities of procedure and the failure of plaintiff to realize
his dream is too speculative and subject to too many future variables to
show a proximate causal relationship between the irregularities and the
claimed injury.
Id. at 906 (emphasis in original).
In the second case, the Tennessee Court of Appeals affirmed the trial court’s grant of
summary judgment on a breach of contract claim against a college asserted by a student who was
studying to be a medical assistant. The appellate court held that, among other problems with the
plaintiff’s breach of contract claim, her alleged damages were too speculative:
Plaintiff’s alleged damages are based upon the theory that, if National
College had not terminated her enrollment in Term 107, she would have
completed Term 107 and received a passing grade in each course; then,
Plaintiff would have enrolled in all remaining courses required to obtain a
medical assistant degree and received a passing grade in each course; and,
as a result of the successful completion of all her courses, she would have
obtained a medical assistant degree; and with said degree, Plaintiff would
have obtained employment as a medical assistant that would provide her
enhanced income. Nevertheless, it remains uncertain whether Plaintiff
would have obtained employment as a medical assistant but for being
removed from Term 107. In fact, it remains uncertain whether she would
have obtained a medical assistant degree. This is due, in part, to the fact
that she returned to school but failed a course during Term 113.
Kindred, 2015 WL 1296076, at *7.
Here, Plaintiff’s alleged damages amount to the “lost income she would have earned as a
medical doctor.” (ECF No. 1 at PageID 19). But Plaintiff’s theory of damages depends on
several unsupported inferences, including: (1) that she would have graduated with an overall
GPA of 3.6 from Rhodes; (2) that she would have successfully completed all of the prerequisite
courses to GW Medical School; (3) that she would graduate from GW Medical School; (4) that
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she would obtain a residency; and (5) that she would find employment as a physician afterward.
Plaintiff’s discovery responses and transcript from Oglethorpe University (“Oglethorpe”), the
institution from which she graduated with a degree in History after leaving Rhodes, show that
she has already failed to establish key facts that her claim for damages asks the Court to assume.
While at Oglethorpe, she failed to take all of the courses that serve as prerequisites to medical
school. Further, Plaintiff admitted in her discovery responses that she has not taken the Medical
College Admission Test or applied to medical schools. The causal chain underlying Plaintiff’s
tortious interference claims is too attenuated to satisfy the damages element of those claims.10
Accordingly, the tortious interference claims should be dismissed.
D. Plaintiff’s Negligent Failure to Train or Supervise Claim Fails Because

Plaintiff Has Effectively Abandoned the Claim.
Plaintiff purports to assert a claim against Rhodes College for negligent failure to train or
supervise. (See ECF No. 1 at PageID 16). The claim, however, remains entirely undeveloped
and is thus ripe for summary judgment. A negligent failure to train or supervise claim requires
evidence of the following: “A plaintiff in Tennessee may recover for negligent hiring,
supervision or retention of an employee if he or she establishes, in addition to the elements of a
negligence claim, that the employer had knowledge of the employee’s unfitness for the job.”
Brown v. Christian Bros. Univ., 428 S.W.3d 38, 56 (Tenn. Ct. App. 2013). And a negligence
claim (which is a component of a negligent failure to train or supervise claim) contains the
following elements: “(1) a duty of care owed by defendant to plaintiff; (2) conduct below the
applicable standard of care that amounts to a breach of that duty; (3) an injury or loss; (4) cause
10
The same is true with respect to the damages elements of Plaintiff’s other claims against
Rhodes College.
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in fact; and (5) proximate, or legal, cause.” Freeman v. Wal-Mart Stores E., LP, 781 F. Supp. 2d
661, 669 (E.D. Tenn. 2011) (listing the elements under Tennessee law).
The Complaint fails to identify those “agents and employees” whom Rhodes College
allegedly failed to train or supervise. (See generally ECF No. 1 at PageID 16) (omitting any
names). Furthermore, Plaintiff has done nothing in discovery to adduce any evidence of (1) who
the alleged “agents and employees” might be; (2) whether (and, if so, how) those unidentified
“agents and employees” owed a duty of care to her; (3) how their conduct might have fallen
below the applicable standard of care; or (4) the specific manner by which she was harmed as a
proximate result of the alleged negligence. See Freeman, 781 F. Supp. 2d at 669. Nor has
Plaintiff adduced any evidence to “establish[ ], in addition to the elements of a negligence claim,
that the employer had knowledge of the employee’s unfitness for the job.” Brown, 428 S.W.3d
at 56. Indeed, to the extent that Plaintiff intends to assert that Rhodes negligently failed to train
or supervise Dr. Bea, that assertion is directly rebutted by the undisputed fact that, but for
Plaintiff’s allegations against him, Dr. Bea has never been accused of any inappropriate conduct
toward a student or a colleague. See id. at 57 (holding that, to survive summary judgment on a
negligent failure to train or supervise claim, a plaintiff must offer some evidence that the
employer “knew or should have known that its employee(s) were unfit” for the job).
To the extent that Plaintiff might intend for her claim to cover the Honor Council or those
persons who investigated the Title IX report (or someone else), she has failed to adduce any
evidence regarding the training that those alleged agents received. The only evidence in the
record regarding the Honor Council’s training is the preliminary injunction hearing testimony of
John Blaisdell (“Dean Blaisdell”), then the Associate Dean of Students at Rhodes College. Dean
Blaisdell testified that, at the beginning of each academic year, the members of the Honor
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Council attend training sessions at which they learn about the Honor Council, the processes that
the Honor Council follows, and how to perform investigations of allegations of academic
misconduct. Plaintiff never adduced any evidence during discovery to the contrary, much less
any evidence that might show how the training was deficient. Plaintiff’s negligent failure to train
or supervise claim is as threadbare as the one rejected in Freeman:
Mr. Freeman’s negligence claims against Wal-Mart rely on nothing more

than bare assertion. He asserts Wal-Mart was deficient in its training of
Mr. Walker, though he admits he knows nothing about the training Mr.
Walker received. He asserts Wal-Mart should have known about violent
or racist propensities possessed by Mr. Walker and therefore refrained from
hiring him or supervised him more closely, though he admits his opinion is
unsupported by evidence. Although as the non-movant Mr. Walker is
entitled to the Court’s favorable construal of the evidence, he is not entitled
to a trial based merely on unsupported allegations.
781 F. Supp. 2d at 670 (emphasis added); see also Brown, 428 S.W.3d at 57 (“Likewise, in the
instant case, Mr. Brown makes conclusory statements that the officers were unfit; however, there
is no proof in the record to support his contention.”). Because Plaintiff has failed to offer any
evidence in support of her negligent failure to train or supervise claim, the claim should be
dismissed.
E. Plaintiff’s TCPA Claim Fails for Myriad Reasons.
Plaintiff’s TCPA claim against Rhodes College is plagued by numerous irremediable
defects. Before explaining why the TCPA claim fails, it is useful to examine how Plaintiff
pleaded her TCPA claim in the Complaint:
78. Rhodes College advertises the following information on its website:

“Rhodes College is committed to providing a working, educational, social,
and residential environment for all members of our College community,
including all faculty, staff, and students, that is free from any form of
sexual misconduct including harassment and assault. Sexually abusive
behavior is harmful to both the learning environment and the sense of
community the college is trying to foster among students, faculty, staff, and
administrators. This policy aims to maintain a consistent, compassionate,
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4824-7815-3047, v. 1
campus-wide mechanism for assisting Rhodes students who have been

sexually assaulted or harassed by a Rhodes student or employee regarding
of where or when the incident occurred.”
79. This representation is false and misleading as Rhodes does not and
has not provided such an environment to Plaintiff and such representation
constitutes an “unfair or deceptive act” within the meaning of Tenn. Code
Ann. Section 47-18-104.
80. Rhodes [sic] use of an unfair or deceptive trade practice is willful in

nature.
81. Plaintiff has sustained an ascertainable loss of money as a result of

Rhodes’ unfair or deceptive trade practice and is entitled to recover treble
damages pursuant to Tenn. Code Ann. Section 47-18-109.
(ECF No. 1 at PageID 16-17).
Seeking clarity regarding these barebones allegations, Defendants propounded an
interrogatory to Plaintiff regarding her TCPA claim:
Interrogatory No. 2: Identify each and every basis for Plaintiff’s claim in
her Complaint that Rhodes College violated the Tennessee Consumer
Protection Act of 1977, including without limitation any and all
representations by Rhodes College that Plaintiff contends were false and,
for each representation so identified, the date on which Plaintiff first
became aware of such representation(s).
(Defs.’ Interrog. No. 2 to Pl.).
Below is how Plaintiff responded to the above-quoted interrogatory:
Response: Plaintiff responds to the foregoing interrogatory by stating that

her basis that Rhodes violated the Tennessee Consumer Protection Act of
1977 is that while Rhodes advertises itself as being in accordance with the
requirements of Title IX and holds itself out to following the equal
opportunity policies under Title IX, Rhodes did not comply with said
policies. Rhodes’ treatment of Plaintiff through the events leading up to
the Honor Council hearing, the Honor Council and Faculty Appeals
Committee hearings, and through the internal Title IX investigation
violated Title IX; thus, Rhodes failed to follow the policies it advertises.
(Pl.’s Resp. to Defs.’ Interrog. No. 2). Plaintiff’s response—where, among other things, she fails
to identify any specific representations by Rhodes College and further fails to state when (if
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ever) she became aware of those representations—is tantamount to an admission that she does
not have an actionable TCPA claim against Rhodes College.
To go forward on a TCPA claim, a plaintiff must offer evidence that (1) the “defendant
engaged in an unfair or deceptive act or practice declared unlawful by the TCPA and (2) that the
defendant’s conduct caused an ascertainable loss” to the plaintiff. Jones v. BAC Home Loans
Servicing, LP, 2017 WL 2972218, at *8 (Tenn. Ct. App. July 12, 2017). Moreover, the
“predicate unfair or deceptive act ‘must affect trade or commerce, as defined by the Act,’ in
order for the TCPA to apply.” Id. (quoting Davenport v. Bates, 2006 WL 3627875, at *17
(Tenn. Ct. App. Dec. 12, 2006)). The terms “trade” and “commerce,” as they are defined by the
TCPA, apply only to the “‘advertising, offering for sale, lease or rental, or distribution of any
goods, services or property, tangible or intangible, real, personal, or mixed, and other articles,
commodities, or things of value wherever situated.’” Id. (quoting Tenn. Code Ann. 47-18-
103(19)). And the “parameters of the TCPA ‘do not extend to every action of every business in
the State.’” Id. (quoting Pursell v. First Am. Nat’l Bank, 937 S.W.2d 838, 841 (Tenn. 1996)).
That is not all. Not every unfair or deceptive act, even if it affects trade or commerce,
gives rise to a private cause of action under the TCPA. Instead, the unfair or deceptive act must
be specifically described in § 47-18-104(b) to be actionable under the TCPA. See Tenn. Code
Ann. § 47-18-109(a)(1) (“Any person who suffers an ascertainable loss of money or property,
real, personal, or mixed, or any other article, commodity, or thing of value wherever situated, as
a result of the use or employment by another person of an unfair or deceptive act or practice
described in § 47-18-104(b) and declared to be unlawful by this part, may bring an action
individually to recover actual damages.”).
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Section 47-18-104(b) lists the predicate acts that give rise to a private right of action
under the TCPA. See id. Notably, however, the catch-all provision—which is codified at § 47-
18-104(b)(27) and which prohibits “[e]ngaging in any other act or practice which is deceptive to
the consumer or to any other person”—is enforceable only by the Tennessee Attorney General,
and not by private plaintiffs. See id. (“[E]nforcement of this subdivision (b)(27) is vested
exclusively in the office of the attorney general and reporter and the director of the division.”).
Finally, although the TCPA does not require a strict showing of reliance, “plaintiffs are [still]
required to show that the defendant’s wrongful conduct proximately caused their injury.” Nickell
v. Bank of Am., N.A., 2012 WL 394467, at *7 (W.D. Tenn. Feb. 6, 2012).
Plaintiff’s TCPA claim fails at every turn. First, she fails to identify which particular
subsection of § 47-18-104(b) Rhodes allegedly violated. A review of the pertinent subsections
reveals that the only subsection that could possibly be squared with Plaintiff’s allegations is §
47-18-104(b)(27) (the catch-all provision), and that subsection is not enforceable by private
plaintiffs. See id. (vesting enforcement authority exclusively in the Tennessee Attorney
General); see also League v. Fed. Nat’l Mortg. Ass’n, 2015 WL 12826636, at *7 (W.D. Tenn.
Sept. 24, 2015) (same). Plaintiff has no TCPA claim because she has not identified in her
Complaint, and even after discovery cannot identify, a predicate act delineated by the statute.
See Tenn. Code Ann. § 47-18-109(a)(1) (explaining in relevant part that, to state a claim under
the TCPA, a plaintiff must identify some unfair or deceptive act made unlawful under § 47-18-
104(b)); see also League, 2015 WL 12826636, at *8 (dismissing a TCPA claim where the
plaintiff failed to identify any act specifically “prohibited in the forty-nine provisions of the
TCPA”).
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4824-7815-3047, v. 1
Second, even if Plaintiff had a viable theory under § 47-18-104(b)—which she does
not—Plaintiff cannot demonstrate that Rhodes engaged in an unfair or deceptive act. The
alleged statement on Rhodes College’s website quoted by Plaintiff in her Complaint (see ECF
No. 1 at PageID 16-17) is purely aspirational, and she has failed to adduce any evidence in
discovery showing that Rhodes, as a general matter, is somehow not committed to providing a
campus that is free from sexual misconduct. An aspirational statement cannot form the basis for
consumer protection statute claim. See Leonard v. Abbott Labs., Inc., 2012 WL 764199, at *22
(E.D.N.Y. Mar. 5, 2012) (“Furthermore, the statement that Abbott is ‘dedicated to the highest
standards of manufacturing and marketing—and to complying with all applicable laws and
regulations in the countries where [they] do business’ is not actionable under the [New
Hampshire, New York, and Texas] consumer protection statutes. This aspirational statement is
simply too vague for a reasonable consumer to rely on it in any material way in making a
decision to purchase the Defendant’s products.”); accord Hossain v. Ocwen Loan Servicing,
LLC, 2014 WL 4347620, at *6 (M.D. Tenn. Aug. 29, 2014) (holding that “[o]pinion statements
about the character or quality of services or ‘puffing,’ by themselves, do not constitute an unfair
or deceptive practice under the TCPA”); Wendy’s of Bowling Green, Inc. v. Marsh USA, Inc.,
2012 WL 370486, at *5 (M.D. Tenn. Feb. 3, 2012) (same). Plaintiff’s TCPA claims fails for this
reason, too.
Still another reason why Plaintiff’s TCPA fails is because she has not offered any
evidence that the alleged statement by Rhodes might have affected “trade or commerce,” as the
TCPA requires. See Pursell, 937 S.W.2d at 841 (“The parameters of the Act, however, do not
extend to every action of every business in the State. The terms ‘trade or commerce’ are
specifically defined to limit the Act’s application.”). In particular, Plaintiff has adduced no
32
4824-7815-3047, v. 1
evidence showing that the alleged statement specifically “affect[ed] the ‘advertising, offering for
sale, lease or rental, or distribution of any goods, services, or property, tangible or intangible,
real, personal, or mixed, and other articles, commodities, or things of value wherever situated.”
Id. (internal quotation marks omitted); see also Kindred, 2015 WL 1296076, at *11 (affirming
the dismissal of a TCPA claim by a student against a college because the “facts, as alleged by
Plaintiff, are insufficient to demonstrate that Defendants were engaged in trade or commerce as
defined under the TCPA”). This omission means that Plaintiff’s TCPA claim should be
dismissed.
Finally, Plaintiff’s TCPA claim fails because she cannot show that she was damaged as a
proximate result of the alleged statement. Counsel for Defendants asked Plaintiff in her
deposition whether she had “read the Rhodes College Title IX policy prior to applying to
Rhodes.” Plaintiff answered: “No. I didn’t know it existed.” Plaintiff has failed to adduce any
evidence regarding how the alleged statement, when taken on its own, directly harmed her. See
Nickell, 2012 WL 394467, at *7 (“Thus, although the TCPA does not require reliance, plaintiffs
are required to show that the defendant’s wrongful conduct proximately caused their injury.”);
accord Finstad v. Washburn Univ. of Topeka, 845 P.2d 685, 691 (Kan. 1993) (affirming the
grant of summary judgment on a Kansas Consumer Protection Act claim involving a false
statement contained in a course catalog because the “students did not rely on the false statement,
and many, if not all, of the students were unaware of the statement” and there was no “showing
that any of the students suffered injury or loss as a result of the publication of the statement”).
The TCPA claim should be dismissed because Plaintiff cannot show that the alleged statement
proximately caused any injury to her.
33
4824-7815-3047, v. 1
CONCLUSION
In summary, the undisputed facts demonstrate that Plaintiff was found “In Violation” of
the Honor Code by clear and convincing evidence through a process that substantially complied
with Rhodes’ policies and procedures. Rhodes considered and rejected Plaintiff’s allegations of
inappropriate behavior by Dr. Bea, either as an explanation for her cheating or as constituting
sexual harassment, as it is entitled to do under the law. Plaintiff’s baseless allegations of ulterior
motives and manipulations against Dr. Bea have zero support in the record and in any event
cannot be imputed to Rhodes under any legal theory. For the foregoing reasons, Defendants
respectfully submit that there is no genuine dispute as to any material fact and that they are
accordingly entitled to judgment as a matter of law on all of Plaintiff’s claims.
Respectfully submitted,
_/s/ Lisa A. Krupicka_________________

Lisa A. Krupicka (BPR #12147)
Gary S. Peeples (BPR #32303)
BURCH, PORTER & JOHNSON, PLLC
130 North Court Avenue
Memphis, Tennessee 38103
Telephone: (901) 524-5000
Facsimile: (901) 524-5024
Email: lkrupicka@bpjlaw.com
gpeeples@bpjlaw.com
Counsel for Defendants
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing document
has been filed using the Court’s CM/ECF system on this the 1st day of December, 2017, which
will automatically send electronic notice of the filing to all counsel of record in this case.
_/s/ Lisa A. Krupicka__________________
34
4824-7815-3047, v. 1

Bose V Rhodes College

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Bose V Rhodes College

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Case 2:16-cv-02308-JTF-tmp Document 116 Filed 12/01/17 Page 1 of 34 PageID 970

IN THE UNITED STATES DISTRICT COURT

MEMORANDUM IN SUPPORT OF DEFENDANTS’

this Memorandum in Support of Defendants’ Motion for Summary Judgment. As explained

judgment as a matter of law on all of Plaintiff Prianka Bose’s (“Plaintiff”) claims.

(See ECF No. 1 at PageID 7-18).

LAW AND ARGUMENT

reasons why all of Plaintiff’s claims fail are detailed below.

A. Plaintiff’s Title IX Claim Fails Irrespective of the Theory of Liability.

theory she asserts.

To proceed on a hostile educational environment claim or a deliberate indifference claim

(1) [S]he was subjected to . . . a sexually hostile environment; (2) she

263 F.3d 504, 510 (6th Cir. 2001)).

condition or privilege of her education and create an abusive [educational] environment.”

that may be addressed on summary judgment.” Id. at 916.

(See ECF No. 1 at PageID 2-4).

educational environment. See 10 F. Supp. 2d at 917-18 (explaining in relevant part that

educational environment, explained as follows:

romantic letters and poems that he had written for her).

proceed on a Title IX hostile educational environment claim.

response amounted to deliberate indifference.”3 Thomas, 1 F. Supp. 3d at 823 (internal quotation

Dec. 19, 2006) (quoting Gebser, 524 U.S. at 277).

any Title IX deliberate indifference claim by Plaintiff should be dismissed.4

between her complaints to a peer-review committee and her subsequent termination).

under a Title VII “cat’s paw” theory of liability.

like respondeat superior liability.”).

deliberately indifferent to an employee’s discriminatory actions.” Foster, 573 F. App’x at 389

matter of law, be imputed to Rhodes.

B. Plaintiff’s Breach of Contract Claim Fails for Multiple Reasons.

the reasons explained below, both assertions lack merit.

should be applied in a dispute arising out of the university-student relationship.” Anderson v.

educational institution “abused its discretion—whether it acted unreasonably, arbitrarily, or

And there is a “presumption of honesty and integrity to which a [college or university]

disciplinary committee is entitled.” Anderson v. Vanderbilt Univ., 2010 WL 2196599, at *14

from Dr. Bea’s pre-hearing questions to them.

Council Constitution has zero merit.

breach is not a breach at all.

evidence that Plaintiff cheated.

whether it acted unreasonably, arbitrarily, or unconscionably.”) (emphasis in original). Plaintiff

indisputably received the benefit of an extensive pre-hearing investigation, pre-hearing notice of

independent investigation of the Title IX report involving Plaintiff’s allegations of inappropriate

allegations of harassment and retaliation were not credible.

Plaintiff relies on a single provision in Rhodes College’s Title IX and Nondiscrimination

Handbook—“[t]he result of an investigation of a Claim will be presented at a Formal Resolution

Nondiscrimination Handbook even constitutes an enforceable contract.

hearing, standing alone, resulted in concrete damages to Plaintiff.

hearing should be dismissed.

C. Plaintiff’s Tortious Interference Claims Are Deficient as a Matter of Law.

interfered with or caused a breach of George Washington University’s contractual relationship

with Plaintiff through its conduct.”).

relationship between Rhodes [sic] and Rhodes.”). Both claims fail.

yet reduced to contract”) (internal quotation marks omitted).

contractual in nature). As explained in Thompson, the tort of intentional interference with

dismissed for this reason.

its contract rights negates the tortious interference claim.”).9

interference claim against Rhodes College fails.

alleged contract-based damages were too speculative:

would thereby have attained admission to a further specialized residency

Id. at 906 (emphasis in original).

Kindred, 2015 WL 1296076, at *7.

Accordingly, the tortious interference claims should be dismissed.

D. Plaintiff’s Negligent Failure to Train or Supervise Claim Fails Because

supervision or retention of an employee if he or she establishes, in addition to the elements of a

or supervise claim is as threadbare as the one rejected in Freeman:

Mr. Freeman’s negligence claims against Wal-Mart rely on nothing more

E. Plaintiff’s TCPA Claim Fails for Myriad Reasons.