Telluselle v. Hawaii Pacific University et al

Filing 85

ORDER GRANTING DEFENDANT' MOTION FOR SUMMARY JUDGMENT 44 . Signed by Judge BARRY M. KURREN on 8/31/2012. ~ The Court GRANTS Defendants' Motion for Summary Judgment. The Clerk of Court is DIRECTED to enter Judgment in favor of Defendan ts and against Plaintiff, and to close this case (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
C. ALEXANDRA TELLUSELLE,

)
)
Plaintiff,
)
)
vs.
)
)
HAWAII PACIFIC UNIVERSITY., )
ET AL.,
)
)
Defendants.
)
______________________________ )

Civ. No. 11-00343 BMK
ORDER GRANTING
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT

ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendants Hawaii Pacific University (“HPU”)
and Erleina Danao’s Motion For Summary Judgment (Doc. 44). The Court heard
this Motion on July 20, 2012. After careful consideration of the Motion, the
supporting and opposing memoranda, and the arguments presented at the hearing,
the Court GRANTS Defendants’ Motion.
FACTUAL BACKGROUND
Plaintiff C. Alexandra Telluselle attended HPU in Fall 2005 to pursue
a Certificate in Organizational Change and Development. Although she was only
one course shy of receiving the Certificate, she returned to Sweden and did not
receive the Certificate. (Defendants’ Exs. 1, 2.)

In December 2009, Plaintiff applied to HPU’s Master of Arts in
Organizational Change (“MAOC”). (Defendants’ Ex. 3.) She was accepted into
the MAOC Program and, as an international student, she was required to take the
Management 6100 course. (Danao Decl’n ¶ 9, Richard Ward Decl’n ¶ 4;
Defendants’ Ex. 5.)
Plaintiff began attending classes at HPU in February 2010. (Danao
Decl’n ¶ 11, Defendants’ Ex. 7.) On March 10, 2010, Plaintiff asked Danao, who
is the Director of the Center for Graduate and Adult Services for Graduate
Advising Services, about whether she could transfer credits from Malmo
University in Sweden, where she had taken graduate level courses. (Danao Decl’n
¶ 16.) Danao notified Plaintiff that HPU must receive the official course
descriptions and Plaintiff’s official transcript from Malmo University before
evaluating her request. (Id.) HPU received the course descriptions on March 15,
2010 but did not receive the official transcript until October 19, 2010. (Id. ¶¶ 20,
22.) A week later, Plaintiff was notified that the credits would not be transferred to
HPU, but that decision was later reversed and HPU applied nine credits to her
MAOC Program. (Id. ¶ 23; Defendants’ Ex. 24.) At the same time, Plaintiff
stopped attending classes and received “F” grades for all of her Fall 2010 classes.
(Danao Decl’n ¶ 28.)
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In February 2011, Plaintiff met with Danao to register for Spring 2011
courses. (Id. ¶ 30.) Danao informed Plaintiff that she still owed HPU a balance of
$5,680 for her Fall 2010 tuition and that HPU policy prohibited her from
registering for Spring 2011 courses until the balance was paid off. (Id.) Plaintiff
did not pay the balance of her tuition or her deposit for the Spring 2011 semester
by the registration deadline. (Id. ¶ 31.) Because she did not complete the
necessary courses for the MAOC Program, she did not receive her degree. (Id.
¶ 33.) Plaintiff has not been a registered student at HPU since January 2011, and
she currently has an outstanding balance of $5,680 owed to HPU. (Id. ¶ 32;
Deborah Nakashima Decl’n ¶ 5; Defendants’ Ex. 27.)
On May 16, 2011, Plaintiff filed the instant lawsuit against
Defendants in state court for negligence, breach of contract, and race or national
origin discrimination. On May 26, 2011, Defendants removed the case to federal
court. After several attempts by the parties at settling this case, Defendants filed
the present Motion for Summary judgment on May 31, 2012.
STANDARD OF REVIEW
A motion for summary judgment may not be granted unless the court
determines that there is no genuine issue of material fact, and that the undisputed
facts warrant judgment for the moving party as a matter of law. See Fed. R. Civ. P.
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56(c). In assessing whether a genuine issue of material fact exists, courts must
resolve all ambiguities and draw all factual inferences in favor of the non-moving
party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); see also
Cline v. Indus. Maint. Eng’g & Contracting Co., 200 F.3d 1223, 1228 (9th Cir.
2000).
In deciding a motion for summary judgment, the court’s function is
not to try issues of fact, but rather, it is only to determine whether there are issues
to be tried. Anderson, 477 U.S. at 249. If there is any evidence in the record from
which a reasonable inference could be drawn in favor of the non-moving party on a
material issue of fact, summary judgment is improper. See T.W. Elec. Serv., Inc.
v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 1987).
DISCUSSION
I.

Plaintiff’s Negligence Claim
Plaintiff argues that Defendants acted negligently in providing her

academic advice and when they failed to grant her request to transfer credits from
Malmo University to HPU.
“To prevail on a negligence claim, a plaintiff must prove: (1) a duty,
or obligation, recognized by the law, requiring a defendant to conform to a certain
standard of conduct; (2) a failure on a defendant’s part to conform to the standard
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required (a breach of the duty); (3) a reasonably close causal connection between
the conduct and the resulting injury; and (4) actual loss or damage.” Rodriguez v.
Gen. Dynamics Armament & Tech. Prods., Inc., 696 F. Supp. 2d 1163, 1177 (D.
Haw. 2010). “It is fundamental that a negligence action lies only where there is a
duty owed by the defendant to the plaintiff.” Bidar v. Amfac, Inc., 669 P.2d
154, 159 (Haw. 1983). “The existence of a duty . . . is entirely a question of law.”
Knodle v. Waikiki Gateway Hotel, Inc., 742 P.2d 377, 383 (Haw. 1987).
Plaintiff asserts that academic advisors and educational institutions
owe students a duty to provide effective academic advice, including immigration
advice, and to accept credits from other academic institutions. (Motion at 13.)
However, a negligence claim requires that the duty be “recognized by the law.”
Rodriguez, 696 F. Supp. 2d at 1177. Plaintiff cites to no law supporting her
argument that such duties exist. This Court applies Hawaii negligence law, which
has not decided whether to impose such duties on academic advisors and
institutions. This Court therefore turns to guidance from other jurisdictions that
have addressed this issue.
The majority of other jurisdictions do not recognize the tort of
educational negligence or malpractice brought by students against their educational
advisors and institutions because policy considerations dictate that no duty is owed
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by academic advisors and institutions to students. Ross v. Creighton Univ., 957
F.2d 410, 414 (7th Cir. 1992) (“the overwhelming majority of states that have
considered [whether a cause of action exists against an institution for educational
negligence and malpractice] have rejected it”); Hendricks v. Clemson Univ., 578
S.E.2d 711, 715 (S.C. 2003) (agreeing with California law, which “represents the
position of the majority of states in refusing to recognize the tort of ‘educational
malpractice’ in claims brought by students”); Brown v. Compton Unified Sch.
Dist., 80 Cal. Rptr. 2d 171, 172 (Cal. App. 1998) (“Policy considerations preclude
an actionable ‘duty of care’ in persons and agencies who administer the academic
phases of the . . . educational process.”). These courts identify several policy
concerns with recognizing an actionable duty of care owed by educators to
students: “(1) the lack of a satisfactory standard of care by which to evaluate
educators, (2) the inherent uncertainties of the cause and nature of damages, and
(3) the potential for a flood of litigation against already beleaguered schools.”
Hendricks, 578 S.E.2d at 715 (citing Ross, 957 F.2d at 414-15; Peter W. v. San
Francisco Unified Sch. Dist., 60 Cal. App. 3d 814, 825 (Cal. App. 1976)).
In Hendricks, 578 S.E.2d at 712, the plaintiff transferred as a student
from one college to Clemson University, where he was to play on the baseball
team. Prior to registration, the plaintiff met with his Clemson academic advisor,
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who advised him to take certain classes. Id. at 713. The advisor realized that she
made a mistake in advising the plaintiff to take those classes, which resulted in him
being ineligible under NCAA rules to play baseball at Clemson. Id. The advisor
acknowledged her mistake, claimed responsibility for it, and petitioned the NCAA
to allow Plaintiff to play baseball. Id. That request was denied. Id.
The plaintiff thereafter sued Clemson for negligence and breach of
contract for the advisor’s mistakes. Id. With respect to the negligence claim, the
South Carolina Supreme Court noted that the state did not previously recognize a
negligence cause of action based on educational advisement. Id. at 714. After
noting that the majority of states refuse to recognize educational negligence or
malpractice and considering the policy concerns with recognizing such a tort, the
court concluded: “We believe recognizing a duty flowing from advisors to
students is not required by any precedent and would be unwise, considering the
great potential for embroiling schools in litigation that such recognition would
create.” Id. at 715.
As in Hendricks and the other cases above, this Court similarly
concludes that Defendants owed no duty to Plaintiff that supports her negligence
claim. Hawaii courts have not acknowledged such a duty, and the courts from
other jurisdictions that have addressed the issue refuse to find such a duty.
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Additionally, the policy considerations stated above weigh in favor of finding no
duty flowing from Defendants to Plaintiff. See Hendricks, 578 S.E.2d at 715. The
Court therefore concludes that Plaintiff has not established “a duty, or obligation,
recognized by the law, requiring [Defendants] to conform to a certain standard of
conduct.” Rodriguez, 696 F. Supp. 2d at 1177. Because “[i]t is fundamental that a
negligence action lies only where there is a duty owed by the defendant to the
plaintiff,” summary judgment in favor of Defendants on this claim is proper. See
Bidar, 669 P.2d at 159.
II.

Plaintiff’s Breach of Contract Claim
Plaintiff’s breach of contract claim is intertwined with her negligence

claim, as both claims are based on Defendants’ academic advice and failure to
transfer Malmo University credits. However, the majority of courts have barred
any attempt to repackage an educational negligence or malpractice claim as a
contract claim. In Hendricks, 578 S.E.2d at 716, discussed above, the court
succinctly stated: “In barring contract actions for educational malpractice claims,
courts have noted that the policy concerns that preclude those claims in tort apply
with equal force when the claim is brought in contract.” See also Ross, 957 F.2d at
416 (“As several courts have noted, the policy concerns that preclude a cause of
action for educational malpractice apply with equal force to bar a breach of
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contract claim.”). Consequently, to the extent Plaintiff is repackaging her
negligence claim as one sounding in contract, summary judgment on the contract
claim is appropriate.
Some courts do recognize that the “relationship between a student and
an educational institution is, in some of its aspects, contractual.” Ross, 957 F.2d at
416. “To state a claim for breach of contract, the plaintiff must . . . point to an
identifiable contractual promise that the defendant failed to honor.” Id. at 416-17.
In this case, Plaintiff points to several alleged contracts and promises
that she says Defendants breached. Plaintiff argues that the Intent To Enroll and
the Registration Form are such contracts. (Plaintiff’s Ex. 25.) In the Intent to
Enroll, Plaintiff accepted HPU’s offer of admission and stated her intent to enroll
at HPU. (Id.) In the Registration Form, Plaintiff agreed to “pay for the course(s)
and all of the charges related to this registration” and to be “responsible for all
charges incurred, should I fail to complete my financial aid processing, or obtain
other financial sponsorship, by the payment deadline.” (Id.) In the Registration
Form, Plaintiff further agreed that: “If my tuition payment is not received by the
second day of the term, I may be disenrolled for the academic term . . . [and HPU]
will be entitled to withhold any of the services from me and take other legal
remedies available . . . .” (Id.) In neither document do Defendants make any
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promises to Plaintiff. Therefore, Defendants could not have breached any alleged
promise made in the Intent to Enroll or the Registration Form.
Plaintiff also asserts that Defendants breached their “promise that if
the student pays and passes required courses as established by the course
curriculum and accreditation of the school, she or he will receive a degree.”
(Opp. at 2, 7.) However, Plaintiff did not fully pay for her tuition, and she
currently has an outstanding balance of $5,680 owed to HPU. (Nakashima Decl’n
¶ 5; Defendants’ Ex. 27.) Further, she did not pass all of her classes, nor did she
take all of the required courses in her MAOC Program. (Danao Decl’n ¶ 28.)
Therefore, even if such a promise or contract existed, Plaintiff has not met her
obligation to pay for a degree from HPU or pass the required classes and therefore,
under this alleged promise, Defendants were not obligated to give her a degree.
Plaintiff also alleges that Danao promised to give her a decision on
whether HPU would transfer credits from Malmo University by December 19,
2010, but breached that promise when HPU did not make a decision by that date.
(Opp. at 6, 8.) Plaintiff states that Danao sent her an email stating that promise,
and she points to her Exhibit 19 as evidentiary support. However, no email is
contained in Exhibit 19. (Plaintiff’s Ex. 19.) Rather, Exhibit 19 is a blank page
with a handwritten note by Plaintiff, which states: “Exhibit 19 (E-mail Erleina
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Danao’s Promise Before Dec 19th).” (Id.) Plaintiff therefore provides no evidence
of this alleged promise. Defendants, however, include a declaration by Danao, in
which she states: “I have never made promises to [Plaintiff] in connection with
academic advice or her request to transfer credits from Malmo University.”
(Danao Decl’n ¶ 19.) Accordingly, the only evidence before this Court establishes
that Danao did not make promises to Plaintiff regarding credits from Malmo
University.
Accordingly, because (1) Plaintiff may not repackage her negligence
claim as one sounding in contract, (2) Defendants made no promises in the Intent
to Enroll and Registration Form, (3) Plaintiff did meet the requirements for an
MAOC degree, and (4) the only evidence before the Court establishes that Danao
did not make promises regarding Malmo University credits, the Court grants
summary judgment in Defendants’ favor on Plaintiff’s contract claim.
III.

Plaintiff’s Discrimination Claim
Plaintiff asserts that Defendants discriminated against her on the basis

of race or national origin, in violation of Title VI of the Civil Rights Act of 1964.
In her Opposition, Plaintiff argues that Defendants discriminated against her “by
not offering all Swedish students the same opportunities.” (Opp. at 3.) She alleges
that two other Swedish students were treated better than her: (1) Andreas
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Blomquist, who “was allowed a yearly 20% tuition waiver and 50% on-campus
job” and (2) Kristin Axelsson, who “got a 100% tuition waiver.” (Opp. at 12.)
She also states that other Swedish students did not have to take the Management
6100 course, which she was required to take. (Opp. at 15.)
In order to establish a prima facie case of race or national origin
discrimination, Plaintiff must show that: (1) she was a member of a protected
class, (2) she was performing her educational expectations satisfactorily, (3) she
experienced an adverse action, and (4) she was treated differently than similarly
situated students not in her protected class. EEOC v. NCL America, 535 F. Supp.
2d 1149, 1162 (D. Haw. 2008); see also Brewer v. Bd. of Trs. of Univ. of Illinois,
479 F.3d 908, 921 (7th Cir. 2007) (“Adjusting terms for the educational context, [a
discrimination claim requires] membership in a protected class, meeting the
school’s legitimate educational expectations, an adverse educational action and
worse treatment than that of similarly situated students not in the protected class.”).

If Plaintiff establishes the prima facie case, the “burden then shifts to
[Defendants] to articulate a legitimate, nondiscriminatory reason for the action.”
NCL America, 535 F. Supp. 2d at 1162. If Defendants carry this burden, Plaintiff
must show that their reason was a pretext for discrimination. Id. Plaintiff may do
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so “either directly by persuading the court that a discriminatory reason more likely
motivated [Defendants] or indirectly by showing that [their] proffered explanation
is unworthy of credence.” Id.
Plaintiff argues that she was discriminated based on her Swedish race
and national origin because other Swedish students were treated more favorably
than she was. (Opp. at 12, 15.) Plaintiff meets the first requirement for a prima
facie case of discrimination, as she is of Swedish descent and is from Sweden. See
Gathenji v. Autozoners, LLC, 703 F. Supp. 2d 1017, 1029 (E.D. Cal. 2010). Even
assuming that Plaintiff was performing her educational expectations satisfactorily
and that she experienced an adverse action, Plaintiff provides no evidence that she
was treated differently than similarly situated students outside of her protected
class. NCL America, 535 F. Supp. 2d at 1162; see also Brewer, 479 F.3d at 921.
Plaintiff’s sole argument is that other Swedish students received tuition waivers
while she did not, and that other Swedish students did not have to take the
Management 6100 course while she was required to take it. However, Plaintiff’s
burden is to establish that she was treated differently than non-Swedish students.
Plaintiff provides no evidence that students outside of her protected class were
treated differently than her, and she therefore fails to prove a prima facie case of

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race or national origin discrimination. Accordingly, summary judgment in
Defendants’ favor on this claim is appropriate.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ Motion
for Summary Judgment. The Clerk of Court is DIRECTED to enter Judgment in
favor of Defendants and against Plaintiff, and to close this case.
DATED: Honolulu, Hawaii, August 31, 2012.
IT IS SO ORDERED.

/S/ Barry M. Kurren
Barry M. Kurren
United States Magistrate Judge

Telluselle v. Hawaii Pacific University, et al., Civ. No. 11-00343 BMK; ORDER GRANTING
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT.
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