MORRISON v. CHATHAM UNIVERSITY

Filing 33

MEMORANDUM OPINION indicating that, for reasons more fully stated within, the Court grants Defendant Chatham University's Partial Motion to Dismiss Plaintiff's First Amended Complaint, with prejudice. An appropriate Order follows. Signed by Judge Nora Barry Fischer on 9/8/16. (jg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DANIELLE MORRISON,
Plaintiff,
v.
CHATHAM UNIVERSITY
Defendant.

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Civil Action No. 16-476
Hon. Nora Barry Fischer

MEMORANDUM OPINION
I.

Introduction

Pending before the Court in this matter is a Partial Motion to Dismiss Plaintiff’s First
Amended Complaint filed by Defendant Chatham University.

(Docket No. 13).

Having

considered Plaintiff’s Amended Complaint, (Docket No. 9); Defendant’s motion to dismiss and
supporting briefing, (Docket Nos. 13, 14); Plaintiff’s response in opposition, (Docket No. 19);
Defendant’s reply, (Docket No. 20); and oral argument presented by the parties on August 29,
2016, (Docket No. 28), Defendant Chatham University’s motion to dismiss is GRANTED.
II.

Background

This matter arises from Plaintiff’s enrollment as a doctoral student at Chatham
University. The following facts are alleged in the Amended Complaint, which the Court will
accept as true for the sole purpose of deciding the pending motion.
Plaintiff, an African-American woman, graduated college with distinction and earned a
Master’s of Science degree in Counseling Psychology. (Docket No. 9 ¶ 1). In 2009, Plaintiff
enrolled as a student at Chatham University to obtain a doctoral degree in Counseling
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Psychology. (Id.). After her initial success and progress in the program, Plaintiff was denied
benefits that were given to similarly situated white students and was disparaged based upon her
race. (Id.). When Plaintiff complained about this treatment, professors and administrators
retaliated against her by taking “various improper actions” and by falsely accusing her of
plagiarizing a draft paper. (Id.). Without affording Plaintiff a hearing, Defendant dismissed her
from the doctoral program. (Id. ¶¶ 1-2).
Plaintiff filed this action on April 20, 2016. (Docket No 1). After Defendant filed a
motion to dismiss, (Docket No. 6), Plaintiff filed an Amended Complaint, asserting three claims
against Defendant, (Docket No. 9).

In Counts I and II, Plaintiff includes claims against

Defendant for the violation of 42 U.S.C. 1981 and for breach of contract. (Docket No. 9 ¶¶ 6374). Defendant seeks the dismissal of Count III of Plaintiff’s Amended Complaint — a claim
against Defendant for slander and libel. In Count III, Plaintiff alleges that on April 23, 2012, in
the presence of Dean Sharon Fross and Dr. Mary Jo Loughran, Dr. Mary Beth Mannarino
accused her of committing plagiarism. (Id. ¶ 76). Plaintiff further avers that on May 2, 2012,
Dean Fross sent Plaintiff a letter, copying Dr. Mannarino, Dr. Michele Colvard, Registrar
Jennifer Bronson, Dr. Jennifer Burns, and Paul Steinhaus, in which she stated that Plaintiff had
received an F for plagiarism. (Id. ¶ 77). Plaintiff believes that Registrar Bronson placed in her
permanent transcript a statement that she received an F and was dismissed by the University.
(Id. ¶ 78). Defendant filed a partial motion to dismiss and supporting briefing on July 18, 2016,
(Docket Nos. 13, 14), and Plaintiff filed a response on July 25, 2016, (Docket No. 19). After
Defendant filed a reply, (Docket No. 20), the parties presented oral argument before the Court on
August 29, 2016, (Docket No. 28). This matter is now ripe for disposition.

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III.

Legal Standard

When reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6), the court must “‘accept all factual allegations as true, construe the complaint in the
light most favorable to the plaintiff, and determine whether, under any reasonable reading of the
complaint, the plaintiff may be entitled to relief.’” Eid v. Thompson, 740 F.3d 118, 122 (3d Cir.
2014) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). To survive a
Rule 12(b)(6) challenge, the plaintiff’s “‘[f]actual allegations must be enough to raise a right to
relief above the speculative level.’” Id. (quoting Twombly, 550 U.S. at 555. (2007). “Thus,
‘only a complaint that states a plausible claim for relief survives a motion to dismiss.’” Id.
(quoting Iqbal, 556 U.S. at 679).
Although the Court must accept the allegations in the complaint as true, “‘[it is] not
compelled to accept unsupported conclusions and unwarranted inferences, or a legal conclusion
couched as a factual allegation.’” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting
Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). “Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S.
at 678 (citing Twombly, 550 U.S. at 555). Instead, the plaintiff must plead facts which permit the
court to make a reasonable inference that the defendant is liable. Twombly, 550 U.S. at 556-57;
Iqbal, 556 U.S. at 678.
Consistent with these principles, the Third Circuit Court of Appeals has prescribed a
three-step analysis for purposes of determining whether a claim is plausible. First, the court
should “outline the elements a plaintiff must plead to a state a claim for relief.” Bistrian v. Levi,
696 F.3d 352, 365 (3d Cir. 2012). Second, the court should “peel away” legal conclusions that
are not entitled to the assumption of truth. Id.; see also Iqbal, 556 U.S. at 679 (“While legal
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conclusions can provide the framework of a complaint, they must be supported by factual
allegations.”). Third, the court should assume the veracity of all well-pled factual allegations
and then “‘determine whether they plausibly give rise to an entitlement to relief.’” Bistrian, 696
F.3d at 365 (quoting Iqbal, 556 U.S. at 679). This third step of the analysis is “‘a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense.’” Id. (quoting Iqbal, 556 U.S. at 679).
IV.

Discussion

In its partial motion to dismiss Plaintiff’s defamation claim, Defendant contends that
Plaintiff has failed to allege facts sufficient to establish the second element of a defamation claim
— namely, the publication of a defamatory communication by the defendant. (Docket No. 14 at
6-10). In this regard, Defendant makes three arguments. First, Defendant argues that Plaintiff
has failed to plead facts supporting her allegation that her academic transcript was published.
(Id. at 7-8). Specifically, Defendant asserts that Plaintiff has failed to aver when her transcript
was published, to whom it was published, how many times it was published, and whether it was
published without Plaintiff’s authorization. (Id. at 7). Second, Defendant contends that any
publication of Plaintiff’s transcript is implausible because Defendant’s Student Handbook
provides that students must authorize the release, or “publication,” of their transcripts. (Id. at 8).
Defendant has attached as an exhibit to its brief a copy of its Student Handbook, which provides,
“In order for Chatham University to release a copy of a student’s transcript, the student must
complete the online transcript request form.”1 (Docket No. 14-1 at 17). Finally, Defendant
argues that the truth of the alleged defamatory statement is clear on the face of Plaintiff’s
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The Student Handbook is from Spring 2014, which appears to be irrelevant to the instant matter because Plaintiff’s
claims arose in 2012.

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Amended Complaint.

(Docket No. 14 at 9-10).

Quoting Plaintiff’s allegation that the

defamatory communication stated that she “‘received an F in PSY 831’” and was “‘dismissed by
the University,’” Defendant maintains that Plaintiff’s other claims are based, at least in part,
upon her allegations that she received an F in a course and was dismissed from the University.
(Id. at 9 (quoting Docket No. 9 at ¶ 78)). Defendant insists that because Plaintiff’s breach of
contract and discrimination claims are based upon these allegations, her defamation claim must
be dismissed. (Id. at 10).
In response, Plaintiff argues that she has properly alleged both oral and written
defamation against Defendant. (Docket No. 19 at 1). In support of her argument, Plaintiff points
to the allegations in her Amended Complaint that: (1) Dr. Mannarino accused her of plagiarism
in the presence of Dean Fross and Dr. Loughran on April 23, 2012;2 (2) Dean Fross sent her a
letter, copying Dr. Mannarino, Dr. Colvard, Registrar Bronson, Dr. Burns, and Mr. Steinhaus, on
May 2, 2012, in which she stated that Plaintiff had received an F for plagiarism; and (3) Plaintiff
believes that Registrar Bronson placed in her permanent transcript a statement that she received
an F and was dismissed by the University. (Docket No. 19 at 1). Plaintiff claims that “[e]ach of
these three paragraphs states a separate cause of action for defamation.” (Id. at 2-3). Plaintiff
also emphasizes that she has requested that all references to plagiarism, her grade, and her
dismissal be removed from her transcript because potential employers may request a copy of her
transcript. (Id. at 2).

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Plaintiff quotes Paragraph 75 of her Amended Complaint, which also states that “[a]ccording to the Student
Handbook, p. 57, Dr. Mannarino should have discussed this matter with the Plaintiff without inviting others to
participate in this discussion.” (Id.). However, page fifty-seven of the Student Handbook that Defendant has
attached to its briefing addresses room furnishings, health and safety inspection, ID cards, and indoor sports. (See
Docket No. 14-1 at 60). Plaintiff has not attached the Student Handbook to any of her filings.

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In reply, Defendant first notes that Plaintiff has failed to respond to its argument that the
alleged defamatory statements are true. (Docket No. 20 at 2). Defendant next argues that
Plaintiff has failed to state a claim for oral defamation, or slander, for two reasons. (Id. at 3).
First, Defendant asserts that Plaintiff sought feedback on her paper and therefore consented to
any statement made in the context of evaluating her paper. (Id.) Second, Defendant contends
that Plaintiff has failed to allege that the oral statement caused her any “special harm.” (Id.).
Defamation includes both libel and slander in Pennsylvania. Pondexter v. Allegheny
County Hous. Auth., No. 11-CV-857, 2012 U.S. Dist. LEXIS 117992, at *35 (W.D. Pa. Aug. 21,
2012). Pursuant to 42 Pa.C.S.A. § 8343(a), a plaintiff asserting a claim for defamation has the
prima facie burden of proving: (1) the defamatory character of the communication; (2) its
publication by the defendant; (3) its application to the plaintiff; (4) the understanding by the
recipient of its defamatory meaning; (5) the understanding by the recipient of it as intended to be
applied to the plaintiff; (6) special harm resulting to the plaintiff from its publication; and (7)
abuse of a conditionally privileged occasion. 42 Pa.C.S.A. § 8343(a)(1)-(7). Libel is written
defamation, while slander is oral defamation. Pondexter, 2012 U.S. Dist. LEXIS 117992, at *36.
The Court will first address Plaintiff’s allegations regarding oral defamation. In her
Amended Complaint, Plaintiff alleges that Dr. Mannarino accused her of committing plagiarism
in the presence of Dean Fross and Professor Loughran on April 23, 2012. (Docket No. 9 at ¶
76). As Defendant has argued, Plaintiff has failed to allege that any special harm resulted as a
result of this exchange. In the context of the special harm requirement, “a plaintiff must plead ‘a
specific monetary or out-of-pocket loss as a result of the defamation.’” Pecha v. Botta, No.
2:13-CV-1666, 2016 U.S. Dist. LEXIS 41278, at *12 (W.D. Pa. Mar. 29, 2016) (quoting Cornell

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Cos., Inc. v. Borough of New Morgan, 512 F. Supp. 2d 238, 271 (E.D. Pa. 2007) (emphasis in
original)).
At the oral argument held on August 29, 2016, Plaintiff argued that she was not required
to plead special harm because she has stated a claim for slander per se.

“Pennsylvania

recognizes an exception to the ‘special harm’ requirement for slander actions.” Pennoyer v.
Marriott Hotel Servs., 324 F. Supp. 2d 614, 618 (E.D. Pa. 2004). “A plaintiff may succeed in a
claim for defamation absent proof of special harm where the spoken words constitute slander per
se.” Id. There are four categories of statements that constitute slander per se, specifically,
“words that impute (1) criminal offense, (2) loathsome disease, (3) business misconduct, or (4)
serious sexual misconduct.” Id. Because the statements at issue here do not fall under any of the
categories of slander per se, the Court must reject Plaintiff’s argument that she was not required
to plead special harm.
In the context of her allegations regarding written defamation, Plaintiff avers that Dean
Fross sent a letter, copying Dr. Mannarino, Dr. Colvard, Registrar Bronson, Dr. Burns, and Mr.
Steinhaus, on May 2, 2012, in which she stated that Plaintiff had received an F for plagiarism.
(Docket No. 9 at ¶ 77). Plaintiff further alleges that Registrar Bronson placed in her permanent
transcript a statement that she received an F and was dismissed by the University. (Id. at ¶ 78).
Plaintiff has averred that notations on her transcript regarding her grade, the plagiarism, and her
dismissal will result in special harm because “it [will be] difficult[,] if not impossible[,] for her to
find employment in her profession.” (Id. at ¶ 80).
Although Plaintiff has alleged that the notations on her transcript will result in special
harm, in the form of a monetary or out-of-pocket loss, the Court finds that her defamation claim
must be dismissed because the face of Plaintiff’s Amended Complaint makes clear the truth of
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the defamatory statements. In Pennsylvania, truth is an affirmative defense to a defamation
claim. Bobb v. Kraybill, 511 A.2d 1379, 1380 (Pa. Super. Ct. 1986) (“Truth is an absolute
defense to defamation in Pennsylvania.”) (citing Hepps v. Phila. Newspaper, Inc., 485 A.2d 374,
377 (Pa. 1984)). While courts generally do not consider affirmative defenses at this stage of the
case, they may be addressed when they appear on the face of the complaint. See Ball v.
Famiglio, 726 F.3d 448, 459 n.16 (3d Cir. 2013) (explaining that courts may consider affirmative
defenses at the motion-to-dismiss stage of a case, “provided that the basis of the defense [is]
apparent on the face of the complaint”); see also Fanelle v. LoJack Corp., 79 F. Supp. 2d 558,
563 (E.D. Pa. 2000) (noting that the defense of truth in a defamation claim is not considered at
the motion-to-dismiss stage of a case, unless the defense appears on the face of the complaint).
The face of Plaintiff’s Amended Complaint makes clear that she received a failing grade
in the course PSY 831 and was dismissed from the doctoral program. (See Docket No. 9 at ¶¶ 23, 58, 61). Indeed, these allegations serve as a basis, in part, upon which Plaintiff asserts her 42
U.S.C. § 1981 and breach-of-contract claims against Defendant. (See id. at ¶¶ 63-74). Wellsettled law provides that a defamation claim may be dismissed when the affirmative defense of
truth is apparent on the face of a complaint, and Plaintiff has failed to provide any legal support
in her response in opposition to Defendant’s partial motion to dismiss. (See Docket No. 19 at 13). The Court, therefore, concludes that Plaintiff’s defamation claim must be dismissed from her
Amended Complaint. See, e.g., Wilson v. Kerestes, No. 3:13-CV-3076, 2014 U.S. Dist. LEXIS
182044, at *23 (M.D. Pa. Feb. 20, 2014) (noting that truth is an affirmative defense to a
defamation action and recommending that the plaintiff’s defamation claim be dismissed with
prejudice); Wilson v. Kerestes, No. 3:13-CV-3076, 2015 U.S. Dist. LEXIS 17475, at *13 (M.D.
Pa. Feb. 12, 2015) (adopting the recommendation and dismissing the plaintiff’s defamation claim
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with prejudice). See also Pelagatti v. Cohen, 536 A.2d 1337, 1346 (Pa. Super. Ct. 1987)
(affirming the partial dismissal of a defamation claim where the alleged defamatory statements
“[were] discernibly true from the face of the complaint”).
The Court’s final inquiry is whether the dismissal of Plaintiff’s Amended Complaint
should be with prejudice or without prejudice, granting Plaintiff leave to amend her complaint
once again. Plaintiff previously exercised her right to file an amended complaint pursuant to
Federal Rule of Civil Procedure 15(a)(1)(B) but has not requested leave to amend a second time
in her responsive brief nor supplied the Court with a proposed Second Amended Complaint.
See, e.g., U.S. ex rel. Zizic v. Q2Administrators, LLC, 728 F.3d 228, 243 (3d Cir. 2013) (“[A]
‘bare request in an opposition to a motion to dismiss — without any indication of the particular
grounds on which amendment is sought . . . — does not constitute a motion within the
contemplation of Rule 15(a).’”) ((quoting Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1280
(D.C. Cir. 1994)); McWreath v. Range Res. - Appalachia, LLC, No. 15-1371, 2016 U.S. App.
LEXIS 5755, at *5 (3d Cir. Mar. 29, 2016) (“[T]he failure to submit a draft amended complaint
‘is fatal to a request for leave to amend.’”) (quoting Zizic, 728 F.3d at 243). In any event, leave
to amend may be denied if an amendment would be futile. See Alvin v. Suzuki, 227 F.3d 107,
121 (3d Cir. 2000) (“An amendment is futile if the amended complaint would not survive a
motion to dismiss for failure to state a claim upon which relief could be granted.”); Centifanti v.
Nix, 865 F.2d 1422, 1431 (3d Cir. 1989) (“[A] district court may properly deny leave to amend
where the amendment would not withstand a motion to dismiss.”).

Because the face of

Plaintiff’s Amended Complaint makes clear the truth of the defamatory statements, granting
Plaintiff leave to file a second amended complaint would be futile. Accordingly, Count III of
Plaintiff’s Amended Complaint will be dismissed, with prejudice.
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V.

Conclusion

For the foregoing reasons, the Court GRANTS Defendant Chatham University’s Partial
Motion to Dismiss Plaintiff’s First Amended Complaint, with prejudice. An appropriate Order
follows.
s/Nora Barry Fischer
Nora Barry Fischer
United States District Judge
cc/ecf: All counsel of record
David K. McMullin, Esquire
564 Forbes Avenue
Suite 804
Pittsburgh, PA 15219-2909

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