Appellant Brief: Prianka Bose v. Roberto Bea, Et Al
Appellant Brief: Prianka Bose v. Roberto Bea, Et Al
Appellant Brief: Prianka Bose v. Roberto Bea, Et Al
PRIANKA BOSE,
Plaintiff – Appellant
v.
Defendants – Appellees
_____________________
APPELLANT’S BRIEF
_____________________
No.
2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest
in the outcome? If yes, list the identity of such corporation and the nature of the financial
interest:
No.
CERTIFICATE OF SERVICE
s/ Adam W. Hansen
This statem ent is filed twice: when the appeal is initially opened and later, in the principal briefs,
im m ediately preceding the table of contents. See 6th Cir. R. 26.1 on page 2 of this form .
6CA-1
8/08 Page 1 of 2
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TABLE OF CONTENTS
I. FACTS .............................................................................................. 6
ii
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ARGUMENT ........................................................................................... 31
CONCLUSION ........................................................................................ 66
ADDENDUM ...............................................................................................
CERTIFICATE OF SERVICE.....................................................................
iv
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TABLE OF AUTHORITIES
CASES
Barr v. Matteo,
360 U.S. 564 (1959) ............................................................................. 57
Boody v. Garrison,
636 S.W.2d 715 (Tenn. Ct. App. 1981) ......................... 57, 59-60, 64-65
Buckner v. Carlton,
623 S.W.2d 102 (Tenn. Ct. App. 1981) ............................................... 59
Cornett v. Fetzer,
604 S.W.2d 62 (Tenn. Ct. App. 1980) ................................................. 59
v
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Dickinson v. Scruggs,
242 F. 900 (6th Cir. 1917) ................................................................... 51
Doe v. Baum,
903 F.3d 575 (6th Cir. 2018) .......................................................... 63-64
Dyer v. Dyer,
156 S.W.2d 445 (Tenn. 1941) .............................................................. 58
Hayslip v. Wellford,
263 S.W.2d 136 (Tenn. 1953) .............................................................. 58
Heike v. Guevara,
2009 WL 3757051 (E.D. Mich. Nov. 6, 2009) ............................... 61, 66
Issa v. Benson,
420 S.W.3d 23 (Tenn. Ct. App. 2013) ................................................. 58
Jones v. State,
426 S.W.3d 50 (Tenn. 2013) ........................................................ passim
Jones v. Trice,
360 S.W.2d 48 (Tenn. 1962) ........................................................ passim
Lea v. White,
36 Tenn. 111 (1856) ............................................................................ 56
vii
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McKee v. Hughes,
181 S.W. 930 (Tenn. 1916) .................................................................. 60
Moore v. Bailey,
628 S.W.2d 431 (Tenn. Ct. App. 1981) ............................................... 60
Rosenblatt v. Baer,
383 U.S. 75 (1966) ............................................................................... 56
viii
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Sullivan v. Young,
678 S.W.2d 906 (Tenn. Ct. App. 1984) ............................................... 58
Taylor v. Geithner,
703 F.3d 328 (6th Cir. 2013) ............................................................... 34
STATUTES
OTHER AUTHORITIES
Page Keeton et al., Prosser & Keeton on Torts § 114 (5th ed.
1984) .................................................................................................... 61
ix
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case presents two issues of first impression for this Court: The first
arising under Title IX. The second relates to the scope of the judicial
x
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STATEMENT OF JURISDICTION
February 27, 2018, the district court granted appellees’ motion for
summary judgment on the Title IX claim and all other claims except for
1
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The parties filed a joint motion to amend that order to reflect that the
28 U.S.C. § 1291.
the scope of a college’s liability under Title IX: whether a college violates
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confronted her professor, appellee Dr. Roberto de la Salud Bea, about his
unwelcome sexual advances. Less than two weeks later, Bea falsely
accused Bose of cheating. He claimed she copied from a fake answer key
he created to catch her in the act of cheating. In reality, Bea created the
fake answer key after the fact to match Bose’s actual quiz answers and
make it look as though she had cheated. Based upon Bea’s allegation, and
Bose.
Birmingham Bd. of Educ., 544 U.S. 167, 173-74 (2005). Bose is a victim
3
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was irrelevant to whether Bose’s expulsion was “on the basis of sex.” The
superior liability here; rather, it holds Rhodes liable for its own
discriminatory actions.
360 S.W.2d 48, 52 (Tenn. 1962). Tennessee has only applied this privilege
4
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For these reasons, this Court should reverse the grant of summary
discrimination on the basis of sex when the college expels a student based
sexual advances.
5
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I. FACTS.
A. The Parties.
Bose attended Rhodes as a student from the fall semester of 2013 through
cumulative GPA of 3.7 by the fall of 2015. Id. In her sophomore year, she
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R.116-4, PageID.1234-35.
walking alone to her car, she encountered Bea in a parking lot. Id.,
PageID.1329. Bea called her name and approached her. Id. She had to
The two began to talk. Id. At first, the conversation was innocent.
He said, “I’m excited about having you in class for the fall semester, it
will be really fun.” Id. He told her he was up for tenure review and was
working on his tenure package and doing research. Id., PageID.1330. She
told him she was in Memphis for the summer for an internship. Id.
Id. Bea asked Bose how she spent her evenings and her free time in
Memphis. Id. She told him she played tennis. Id. He asked, “do you get
to hangout with your boyfriend”? Id. At that point, Bose paused because
she “felt so uncomfortable.” Id. Bose had never mentioned her boyfriend
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to Bea, yet he was questioning her about her romantic relationship. Id.
She “didn’t understand where the idea of a boyfriend even came from.”
Id. Bose did not answer the question; she simply told Bea she “had to
As Bose was about to turn and leave, Bea reached out his hand
toward her. Id. She stepped away again and stopped. Id. He said, “wait,
so what are you doing”? Id. She asked, “what do you mean”? Id. “[W]ell,”
he said, “I meant, you know, would you like to go out to dinner with me
just to catch up”? Id. According to Bose, “It sounded like he was asking
me out on a date and that did not make me comfortable.” Id. She said
As soon as Bose arrived at her car, she called her mother to tell her
about the conversation. Id. Bose’s mother advised her to try to maintain
keeping with her mother’s advice, Bose remained enrolled. See id.
on points scored on nine total exams: five quizzes, three midterms, and a
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Organic Chemistry II students the option to take their exams early. Id.,
PageID.1049. Because Bea scheduled his exams for Fridays, Bose often
PageID.1091-1100.
From the beginning of the semester until November 20, 2015, Bose
took six exams—four of which she took early in Bea’s office—and excelled
perfect score on the quiz she took in the classroom during the regularly
SJ Exhibits, R.120-1, PageID.1342. During her exams, Bea sat with her
9
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classroom or lab room, but Bea insisted that she take them in his office.
Bea even followed Bose as she attended her other courses. Bose was
1343, 1368. Although other students were present in the lab, Bea paid
almost exclusive attention to Bose. Id.; PI Exhibit 13, App.105. Bose took
PageID.1078.
Bea even initiated special meetings with Bose where he asked her
about her personal life. In September 2015, Bea tried to pull Bose out of
the lab to discuss something with her. PI Exhibit 13, App.106. She told
him she was busy, and he asked her to come talk to him after class. Id.
Once she arrived in his office, he asked her about research opportunities
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polite, she told him she would consider it, but she “didn’t really want to
work in close proximity to him” because she was “still on edge and trying
to keep the relationship professional.” Id. Bea then tried to engage her in
personal conversation, asking her about her family, her sorority, and
whether she attended parties on campus. Id. Bose “just didn’t answer”
On November 19, 2015, Bose and a friend were sitting in the Rhodes
Id. He leaned over her shoulder, and asked very sternly, “are you texting
your boyfriend”? Id., PageID.1335. Bose was startled and “kind of jumped
a little” because she had not seen him approach. Id.; PI Exhibit 13,
App.107. Bea stood very close to her—so close that Bose’s friend had to
“adjust herself” because Bea was “in her space as well.” PI Exhibit 13,
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PageID.1335.
After the incident in the cafeteria, Bose decided to tell Bea in person
that he was making her uncomfortable with his unwelcome words and
be the most professional and effective approach. Id. So later in the day of
the incident in the cafeteria, Bose, accompanied by the same friend who
had witnessed the incident, located Bea outside the chemistry building
Bea seemed very happy to see Bose until she broached the subject
of his inappropriate behavior. Id., PageID.1337. She said, “look, Dr. Bea,
I don’t know if you mean it this way, but I feel really uncomfortable when
12
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“really mad,” looked at the ground, and walked away angrily without
App.108.
Bea’s Midterm 3 exam was scheduled for the next day, November
20, 2015. SJ Exhibit A, R.116-2, PageID.1051. Bose woke that day with
a fever and decided she would take the test early to avoid disturbing the
PageID.1338. She arrived at Bea’s office about thirty minutes before the
Organic Chemistry II class commenced. Id. Bea printed out her test,
tossed it on the desk, and “didn’t say anything” to her at all, which was
class average. Id., PageID.1406. Bea, however, falsely recorded her grade
Monday, on November 23, Bose tried to ask Bea questions about practice
problems for the course. Id., PageID.1339. Bea refused to respond to her
13
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or even look at her. Id. Instead, he simply shrugged his shoulders. Id.
Bose had regularly asked for his help on practice problems in the past,
PageID.1340.
Feeling uneasy with his changed behavior, Bose went to his office
after class to try to address the situation. Id. She said, “Dr. Bea, can I
talk to you”? Id. But he did not even look at her. Id. So she sat down and
said it again: “Dr. Bea, can I please talk to you, I really need to talk to
Id., PageID.1341. So Bose simply said her piece: telling Bea that since
she had confronted him the day of the cafeteria incident, it seemed as
though he did not want to teach her anymore or answer her questions
about the material. Id. Bea again did not respond, so she left. Id.
A few days later, Bea framed Bose for cheating. On November 26,
the final quiz in Bea’s course, was scheduled for December 4, 2015, but
Bose took the quiz on December 2 so she could travel home for a family
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had been viewing answer keys on his computer while taking quizzes and
never accessed answer keys on his computer and never cheated in any
electronic signature, Bea modified the answer key after Bose took the
quiz to match her actual answers and make it appear as though she had
“fake answer key” was itself a fake that Bea forged to retaliate against
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of truthfulness. For example, if Bea were telling the truth, he could have
before Bose took the quiz, easily proving his allegations. Id.,
PageID.1402-03. Bea never did so. Id. In a similar vein, Bea offered no
document two hours after Bose had completed taking the quiz. Id.,
answer key strongly suggests that he changed the key to match Bose’s
actual answers.
Bea had every reason to retaliate against Bose. In the fall of 2015,
Bea was being reviewed for tenure. Id., PageID.1405. If Bose had
already scored extremely well—107 out of 100 points—on the first four
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never raised with Bose or anyone else before she confronted him about
13, 2015, when she took Quiz 4 in his office. Id., PageID.1026-27. Bea
claimed that when he returned to his office, the answer key document for
Quiz 4 was open on his computer. Id., PageID.1027. Bose never touched
his computer, however, and Bea was present in his office with Bose for
nearly the entire time she took that quiz. SJ Exhibit B, R.116-3,
17
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later claimed that Bose had been acting suspiciously during Midterm 3
because she had been standing behind his desk when he arrived back at
to let him into the office, and she was standing near—not behind—his
2015—the same day Bose took Quiz 5—Bea sent emails to Rhodes’
R.116-4, PageID.1246, 1248. One of the deans brought the matter to the
body charged with evaluating and acting upon alleged honor code
18
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PageID.1109, 1142.
Over the course of the next nine days, Bose met with Mitchell
Trychta, the Honor Council member assigned to investigate her case, and
Bose did not tell Trychta about Bea’s inappropriate sexual conduct
that point in time, it did not occur to Bose that Bea had accused her of
R.1, PageID.4. Another member of the Honor Council, Zain Virk, worked
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as Bea’s research assistant but did not recuse himself. Id., PageID.9; SJ
against Bose. He claimed, for example, that he had created a fake answer
key filled with incorrect answers and that Bose’s actual answers aligned
R.116-2, PageID.1028. Bea asserted that all but the first of five answers
on the fake key were incorrect. Id. That statement was misleading. Quiz
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either 16 or 17 out of 25 points on the quiz—a fact which Bea did not
share with the Honor Council. SOF Response, R.120, PageID.1324; Bea
R.120-1, PageID.1412.
Bea also misled the Honor Council about the fake answer key
everybody when it was modified. It was modified two days before [Bose]
took that quiz.” Id., PageID.1398. That testimony was false. In fact, all
parties’ forensic experts agree that Bea last modified the answer key
approximately two hours after Bose took the quiz. Id., PageID.1414,
Bea also misinformed the Honor Council about Bose’s prior exam
scores. He testified that Bose had scored a 47 on the Midterm 3 exam and
said this low score raised his suspicions. Id., PageID.1392; SJ Exhibit A,
R.116-2, PageID.1027. At the time of the hearing, Bea knew that Bose
had lost the original, graded copies of her Organic Chemistry II exams
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Bea also falsely claimed that Bose had altered his rosters to change
which he kept in the top tray of his desk, because the roster did not match
PageID.1028. However, the original exams prove that neither his written
PageID.1006-07. The written roster showed she scored a 77, and the
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against her, she began to understand that he had a retaliatory motive for
accusing her of cheating. Id. During the hearing, Bea repeatedly brought
up his tenure review and the possibility that his tenure could be in
that point, Bose “started putting two and two together,” realizing Bea
had viewed the possibility that she would report him for his misconduct
PageID.1262-63.
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App.66-71. When examining Bose at the hearing, Bea asked her if she
threatened her:
toward her. For example, Bose asked him, “Do you remember that we ran
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into each other once during this past summer?” PI Exhibit 4, App.70-71.
summer? Well, maybe. Yes, so? So?” Id., App.71. She then asked whether
questions from Bose, that he did not remember the incident in the
cafeteria, asking about her boyfriend, or the confrontation later that day.
Bose was questioned by Bea and Honor Council members but had
and her confrontation with him after the incident in the cafeteria,
her and told her she could only ask questions. Id., App.70-71. During her
closing statement, Bose again raised Bea’s retaliatory motive, but Adolph
would not allow her to recall witnesses to question them about the facts
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B, R.116-3, PageID.1178.
Four days after the hearing, Adolph sent Bose an email informing
her that the Honor Council had found her in violation and that she was
“[t]he Council had no means of assessing” the answer key’s validity “other
“sufficient evidence to reach the decision that [the] Honor Council did.”
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Committee “by its own admission . . . simply addressed the ‘In Violation’
R.149, PageID.1799.
the allegations that led to the proceeding.” Complaint, R.1, Page ID.7;
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beginning that she would not be investigating the key facts underlying
the retaliation.
the parking lot, and the incident in the cafeteria. Harmon Report,
missing from this statement. Id. There is no indication that the scope of
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Bose filed this action asserting a claim against Rhodes for violating
Title IX, 20 U.S.C. §§ 1681-1688, a claim against Bea for defamation, and
17.
district court agreed and dismissed the defamation claim while allowing
29
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retaliation claim, Rhodes argued that the claim failed because Rhodes
itself did not have a retaliatory motive and therefore causation was
agreed, holding that Bea’s own retaliatory motive was irrelevant because
respondeat superior and constructive notice that do not apply to Title IX.
SJ Order, R.149, PageID.1788-90. The court did not say what theory of
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ARGUMENT
“on the basis of sex.” Contrary to the district court’s holding, the cat’s-paw
theory fully aligns with Title IX’s framework, and, accordingly, applies to
A. Standard of Review.
facts in the light most favorable to Bose. Hunt v. Sycamore Cmty. Sch.
Dist. Bd. of Educ., 542 F.3d 529, 532 (6th Cir. 2008). The standard of
review is de novo. Id. at 534 (citing Sperle v. Mich. Dep’t of Corr., 297
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U.S.C. § 1681(a).
Congress enacted Title IX with two primary objectives: “to avoid the
Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979). Title IX thus
Id. at 717.
statute a broad reach.” Jackson, 544 U.S. at 175 (citing North Haven Bd.
of Ed. v. Bell, 456 U.S. 512, 521 (1982)). Discrimination on the basis of
sex. Id. at 174 (citing cases). Thus, although Title IX does not explicitly
mention sexual harassment, the Supreme Court has held that sexual
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Title IX’s private right of action. Franklin v. Gwinnett Cnty. Pub. Sch.,
503 U.S. 60, 74-75 (1992). Just as a supervisor discriminates on the basis
discrimination “on the basis of sex” in violation of Title IX. Jackson, 544
as Title VII. Fuhr v. Hazel Park Sch. Dist., 710 F.3d 668, 673 n.2 (6th Cir.
plaintiff must show: (1) she engaged in a protected activity under Title
IX, (2) defendant’s knowledge of the protected activity, (3) adverse school-
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related action, and (4) a causal connection between the adverse school-
related action and the protected activity. See Taylor v. Geithner, 703 F.3d
328, 336 (6th Cir. 2013) (setting forth similar elements for Title VII
retaliation claim); see also Emeldi v. Univ. of Oregon, 673 F.3d 1218, 1223
at 698 F.3d 715 (9th Cir. 2012); Papelino v. Albany Coll. of Pharmacy of
discrimination “on the basis of sex.” Franklin, 503 U.S. at 75. For the
Monroe Cnty. Bd. of Educ., 526 U.S. 629, 646-47 (1999). This rule is not
limited to the sexual harassment context. Courts have found that other
school agents violate Title IX. These include a professor giving a student
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discrimination, see Varlesi v. Wayne State Univ., 643 F. App’x 507, 512,
518 (6th Cir. 2016); a coach’s policy that prohibited male athletes from
growing out their hair, see Hayden ex rel. A.H. v. Greensburg Cmty. Sch.
Corp., 743 F.3d 569, 583 (7th Cir. 2014); a professor’s decision to resign
F.3d at 91.
third parties, however, will not lead to monetary damages under Title IX
unless the funding recipient had notice and failed to remedy them. See
generally Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998). The
35
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actual notice to a school district official.” Id. Accordingly, the Court held
on the district’s behalf has actual notice of, and is deliberately indifferent
to, the teacher’s misconduct.” Id. at 277. Thus, in cases “that do not
will result in institutional liability only if the funding recipient has actual
The Supreme Court adopted this standard to avoid the “risk that
the recipient would be liable in damages not for its own official decision
indifference standard for claims under § 1983 . . . .” Id. at 291; see also
Gebser did not change the rule that a funding recipient can be liable
parties. See supra at 34-35. Gebser merely set forth the standard
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recipient’s agents or third parties. Gebser, 524 U.S. at 290-91; Davis, 526
harassment). Gebser did not analyze causation—the “on the basis of sex”
and purpose” and the Spending Clause’s notice requirement. 524 U.S. at
284, 287; Davis, 526 U.S. at 640. Accordingly, this Court has limited the
harassment. Doe v. Miami Univ., 882 F.3d 579, 591 (6th Cir. 2018).
37
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action.” Marshall v. The Rawlings Co. LLC, 854 F.3d 368, 377 (6th Cir.
2017) (citing EEOC v. BCI Coca-Cola Bottling Co. of Los Angeles, 450
F.3d 476, 484 (10th Cir. 2006)). In such a situation, the decisionmaker
Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 878 (6th Cir. 2001)
(quoting Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990)), opinion
supplemented on denial of reh’g, 266 F.3d 407 (6th Cir. 2001). The cat’s-
action and the animus of an employee who influenced, but was not in
charge of, the ultimate decision to take adverse action. Marshall, 854
F.3d at 377.
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employer then fired him based on the false allegations. Id. at 415. The
agency law but determined that those principles did not provide a clear
action. Id. The Court noted that “[w]hen a decision to fire is made with
no lawful animus on the part of the firing agent, but partly on the basis
decision. Id. at 419. Thus, the “central difficulty” in Staub was construing
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action “so long as the agent intends, for discriminatory reasons, that the
adverse action occur.” Id. at 419. The words “vicarious liability” and
Court did not rest its cat’s-paw analysis on vicarious liability principles.
The cat’s-paw theory does not, as the district court believed, require
another. See, e.g., Chattman v. Toho Tenax Am., Inc., 686 F.3d 339, 352
“causation analysis” and noting that “[c]at’s paw liability attaches when
v. City Of Houston, 798 F.3d 326, 331 (5th Cir. 2015) (describing cat’s paw
as a “theory of causation”).
40
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standard rather than respondeat superior. See Gebser, 524 U.S. at 291;
Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 691 (1978)
Hamilton Cnty. Court of Common Pleas, 626 F. App’x 101, 105-08 (6th
Barrow & Assocs., Inc. v. City of Springfield, 559 F.3d 765, 771 (7th Cir.
Memphis, 519 F.3d 587, 604 n. 13 (6th Cir. 2008) (in § 1983 retaliation
case, stating that employer may be held liable “[w]hen an adverse hiring
such bias”).
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The cat’s-paw theory comfortably aligns with the text and purpose
§ 2000e-2(a), (m) (making it unlawful under Title VII for “an employer”
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motivating factor”). Thus, under USERRA and other similar statutes, the
liability. See 562 U.S. at 417 (“The central difficulty in this case is
Title IX’s plain language prohibits any discrimination on the basis of sex,
Title IX, the discriminatory motive need not stem from the funding
recipient’s final decision-makers but can also stem from other agents or
even third parties. See, e.g., Davis, 526 U.S. at 644-47; Franklin, 503 U.S.
at 75; Emeldi, 698 F.3d at 726-29; Papelino, 633 F.3d at 92-93. Given
agents. And under Title IX, the student’s membership in a protected class
43
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need only be a causal factor and not a “motivating factor.” See 20 U.S.C.
562 U.S. at 419. This analysis did not hinge on respondeat superior
principles.
retaliatory animus makes no sense in light of Title IX’s text and purpose.
Under Title IX, Bea’s own retaliatory acts against Bose would constitute
discrimination “on the basis of sex.” For example, if Bea had retaliated
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Rhodes has not explained why the outcome should be any different
out his scheme of retaliation. It should not be. As the Supreme Court
can both be attributed to the earlier agent . . . if the adverse action is the
for the adverse action to Bea because Bea intended to set it in motion.
See id. By the same token, because the agent—here, Bea—invokes the
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paw causation does not violate the principles underlying Gebser. Bose is
seeking to hold Rhodes liable for its own actions, not for the independent
acts of its agents. Here, the adverse action was an overt act by the
Gebser, the school would be held liable not for “its employees’
independent actions” but “for its own official decision.” 524 U.S. at 291.
Since Bose put Rhodes on notice of Bea’s retaliatory motive, Rhodes had
against her “on the basis of sex.” Bose defended herself before the Honor
and also filed a Title IX complaint—at all stages explaining that Bea’s
any sort of independent investigation to cut off the chain of causation and
ensure Bea’s retaliatory motive was not the cause of Bose’s expulsion.
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reached the conclusion, on its own, that it should take adverse action, the
the school.” Hayden, 743 F.3d at 583 (athletic coach’s discriminatory rule
liable for damages for its own acts and policies. See Davis, 526 U.S. at
640-41. Cat’s paw prevents a situation just like this one—where a biased
achieves two goals. Id. “First, the cat’s-paw theory addresses situations
47
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(quoting BCI Coca-Cola, 450 F.3d at 486). A funding recipient who has
for its own acts, not the acts of its agents. See Gebser, 524 U.S. at 290 (a
v. Ford Motor Co., 782 F.3d 753, 762 (6th Cir. 2015) (en banc). Lawyers
and non-lawyers alike would readily agree that a college itself does not
change, of course, if the law explicitly made the college responsible for
the actions of the teacher, or if the college knew about the misconduct
and failed to stop it.) But those same lawyers and non-lawyers would
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surely agree that a college discriminates “on the basis of sex” when it
his unwelcome sexual conduct. In such a case, the college acts directly;
and absent the discriminatory motive, the student would still be enrolled.
sense, been “excluded from participation in, . . . denied the benefits of,
§ 1681(a).
with Bea, his cold-shouldering of her over the course of the following
49
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action in the retaliation context.” Asmo v. Keane, Inc., 471 F.3d 588, 593
(6th Cir. 2006); see also Papelino, 633 F.3d at 91 (citing Kaytor v. Elec.
a finding of causation. A jury could infer, for example, that Bea modified
the Quiz 5 answer key two hours after Bose took the quiz to mimic her
1435-36. The same is true with respect to (1) Bea’s failure to share his
alleged fake answer key with Rhodes’ administrators, (2) his motivation
inconsistent testimony before the Rhodes Honor Council, and (4) his
claimed lack of memory about any of his unwelcome sexual behavior. See
testified that she did not cheat on her exams and lacked any motive to do
50
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fake answer key exactly matched her answers out of sheer coincidence.
Thus, if the jury believes Bose, then the jury could reasonably conclude
that Bea forged the fake answer key in order to frame Bose for cheating
advances. Ultimately, this case turns on Bea and Bose’s credibility, and
242 F. 900, 902 (6th Cir. 1917) (citation omitted). A reasonable jury could
believe Bose over Bea. If the jury did believe Bose, then it would
Dean for Student Affairs, but the Dean did not pass along the report to
other school officials because he “didn’t want to let it out.” Id. at 86.
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Medicinal Chemistry course. Id. A hearing was held, and the professor
Id. at 86-87. The Student Honor Code panel found Papelino had violated
the Honor Code. Id. at 87. As a result, Papelino received a failing grade
and was expelled. Id. Papelino sued the college for sexual harassment
and retaliation under Title IX. Id. at 88. The district court, like the
hear” the case. Papelino v. Albany Coll. of Pharmacy of Union Univ., 2009
motive defeated causation. The court explained that, despite the lack of
evidence that the school or panel itself harbored a retaliatory intent, “the
jury could find that [the professor] initiated the Honor Code proceedings
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for retaliatory reasons rather than a good faith belief that Papelino had
actually cheated.” 633 F.3d at 93. The court applied the cat’s-paw theory,
noting that “while lack of knowledge on the part of particular agents who
plaintiff may counter with evidence that the decision-maker was acting
knowledge.” Id. at 92. The court went on to hold that “even if the
as in Papelino, a reasonable jury could find Bea initiated the Honor Code
proceedings for retaliatory reasons and that the Honor Council acted on
even clearer here than in Papelino, because here Rhodes’ Honor Council,
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retaliatory in nature, but it never did so. Instead, it expelled Bose based
In light of these facts, Rhodes certainly did not break the cat’s-paw chain
Given the facts here and the clear parallel with the facts of
Papelino, this Court should follow the Second Circuit’s lead and hold that
a reasonable jury could find the requisite causal connection between the
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beyond their historical application, this Court should hold that the
A. Standard of Review.
Fund, Inc., 821 F.3d 780, 785 (6th Cir. 2016) (citing Cataldo v. U.S. Steel
Corp., 676 F.3d 542, 547 (6th Cir. 2012)). The Court accepts all factual
favorable to the plaintiff. Id. (citing Laborers’ Local 265 Pension Fund v.
2013) (citing Simpson Strong-Tie Co., Inc. v. Stewart, Estes & Donnell,
from liability for defamatory statements even when made with ill will,
privileges, on the other hand, shield defendants from liability for most
55
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the statements were made with actual malice or ill will.” Id. (citation
omitted).
Id. at 56. Tennessee courts recognize that the “right of a man to the
hurt reflects no more than our basic concept of the essential dignity and
worth of every human being—a concept at the root of any decent system
privilege. Lambdin Funeral Serv., Inc. v. Griffith, 559 S.W.2d 791, 792
with the judicature of the country are so important to the public good”
36 Tenn. 111, 114 (1856)). The judicial privilege reflects “a policy decision
56
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reputational damage. Id. at 51; see also Lambdin, 559 S.W.2d at 792
(explaining “the public’s interest in and need for a judicial process free
from the fear of a suit for damages for defamation”). The “rationale” for
the rule is “permitting free, frank and robust discussion relative to public
issues.” Boody v. Garrison, 636 S.W.2d 715, 717 (Tenn. Ct. App. 1981).
(quoting Barr v. Matteo, 360 U.S. 564, 572-73 (1959)). Thus, “[t]he class
57
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actual court of law. E.g., id. at 50, 53; Dyer v. Dyer, 156 S.W.2d 445, 447
(Tenn. 1941) (“lunacy proceedings” conducted “by the Judge of the County
Wellford, 263 S.W.2d 136, 137 (Tenn. 1953) (reports of the Shelby County
Grand Jury); Issa v. Benson, 420 S.W.3d 23, 29 (Tenn. Ct. App. 2013)
152, 159, 161 (Tenn. Ct. App. 1997) (reports made by a potential witness
See, e.g., Lambdin, 559 S.W.2d at 792 (proceedings before the Tennessee
Super Markets, Inc. v. McCalla, 343 S.W.2d 892, 894 (Tenn. 1961) (public
58
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Buckner v. Carlton, 623 S.W.2d 102, 108 (Tenn. Ct. App. 1981)
S.W.2d 62, 63 (Tenn. Ct. App. 1980) (remarks by city councilman); Jones
officials).
Boody, 636 S.W.2d at 717. The court recognized that the privilege extends
59
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or prosecuted for testifying falsely.” Id. Thus, the court held that the
council meeting. Id. Tennessee courts have also declined to extend the
alleging misconduct, see Moore v. Bailey, 628 S.W.2d 431, 436 (Tenn. Ct.
v. Univ. of Pa., 412 F.3d 492 (3d Cir. 2005), the Third Circuit considered
Justice Alito went on to note that “[e]very case” on the privilege “cited in
the leading torts treatise involves a government entity of some sort,” id.
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at 497 (citing Page Keeton et al., Prosser & Keeton on Torts § 114, at
818-19 (5th ed. 1984)), and that every example in the pertinent section of
498.
6, 2009), aff’d, 519 F. App’x 911 (6th Cir. 2013). The court explained that
hearing. Id.
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to proceedings before private bodies, and in fact have never done so. The
current law.
Since the Tennessee Supreme Court has not decided the issue, this
Court “must predict how it would resolve the issue from ‘all relevant
data.’” Kingsley Assocs., Inc. v. Moll PlastiCrafters, Inc., 65 F.3d 498, 507
(6th Cir. 1995) (quoting Bailey v. V & O Press Co., Inc., 770 F.2d 601, 604
(6th Cir. 1985)). The Court’s “respect for the role of the state courts as
to novel situations.” Grubb v. W.A. Foote Mem’l Hosp., Inc., 741 F.2d
1486, 1500 (6th Cir. 1984), vacated on other grounds, 759 F.2d 546 (6th
Cir. 1985).
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decided that Bea’s own research assistant did not need to recuse himself.
trial.” See supra at 20. Accused students are not allowed to have legal
principles of due process. See Doe v. Baum, 903 F.3d 575, 581 (6th Cir.
63
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App.133-34.
See Jones v. State, 426 S.W.3d at 54, 56; Jones v. Trice, 360 S.W.2d at 52.
64
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liberally. See, e.g., Boody, 636 S.W.2d at 717 (declining to extend the
proceedings, Tennessee courts have not applied the privilege at all. See
omitted)).
If, as the district court suggested, the absolute privilege could apply
granting any savvy actor with access to a private hearing system a license
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privilege beyond its traditional moorings. See Grubb, 741 F.2d at 1500
3757051, at *9.
CONCLUSION
defamation claims.
s/Adam W. Hansen
Adam W. Hansen
Counsel of Record
Eleanor E. Frisch
APOLLO LAW LLC
3217 Hennepin Avenue South
Suite 7
Minneapolis, MN 55408
66
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(612) 927-2969
Bryce Ashby
DONATI LAW, PLLC
1545 Union Avenue
Memphis, TN 38104
Brice M. Timmons
BLACK MCLAREN JONES
RYLAND & GRIFFEE PC
530 Oak Court Drive, Suite 360
Memphis, TN 38117
67
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CERTIFICATE OF COMPLIANCE
WITH TYPE-VOLUME LIMITATION, TYPEFACE
REQUIREMENTS, AND TYPE STYLE REQUIREMENTS
Word 2016, excluding the parts of the brief exempted by Federal Rule of
ADDENDUM
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53 Answer 633-44
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Adam W. Hansen