Cornelius v Caribbean University, Inc., et al
Filing
100
OPINION & ORDER re 70 MOTION for Summary Judgment, 72 MOTION for Summary Judgment, 74 Memorandum in Support. Signed by US Magistrate Judge Bruce J. McGiverin on 5/18/2016. (jm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
PEDRO CORNELIUS-MILLAN,
Plaintiff,
v.
Civil No. 13-1873 (BJM)
CARIBBEAN UNIVERSITY, INC., et al.,
Defendants.
OPINION AND ORDER
Following a brawl between Pedro Cornelius-Millan (“Cornelius”) and Professor
Luis Estades (“Estades”), Caribbean University, Inc. (“Caribbean” or “the University”)
expelled Cornelius from the University. Cornelius brought this action against Caribbean,
Estades, and other named defendants, alleging race discrimination and retaliation in
violation of Title VI of the Civil Rights Act of 1964 (“Title VI”), 42 U.S.C. § 2000d,
slanderous defamation in violation of Puerto Rico law, and several other claims. Docket
No. 3. Defendants previously moved for judgment on the pleadings, and only two claims
survived: the Title VI retaliation claim against Caribbean and the slander claim against
Estades. Docket No. 52. Caribbean and Estades each moved for summary judgment,
Docket Nos. 70, 74, 91-1, 92-1, and Cornelius opposed. Docket Nos. 81, 87. The case is
before me on consent of the parties. Docket No. 60.
For the following reasons, the motions for summary judgment are GRANTED.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when the movant shows “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A dispute is “genuine” only if it “is one that could be resolved in
favor of either party.” Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 19 (1st Cir.
2004). A fact is “material” only if it “might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving
Cornelius v. Caribbean University, Inc., et al., Civil No. 13-1873 (BJM)
2
party bears the initial burden of “informing the district court of the basis for its motion,
and identifying those portions” of the record materials “which it believes demonstrate the
absence” of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986).
The court does not act as trier of fact when reviewing the parties’ submissions and
so cannot “superimpose [its] own ideas of probability and likelihood (no matter how
reasonable those ideas may be) upon” conflicting evidence. Greenburg v. P.R. Mar.
Shipping Auth., 835 F.2d 932, 936 (1st Cir. 1987). Rather, it must “view the entire record
in the light most hospitable to the party opposing summary judgment, indulging all
reasonable inferences in that party’s favor.” Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st
Cir. 1990). The court may not grant summary judgment “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at
248. But the nonmoving party “must do more than simply show that there is some
metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986), and may not rest upon “conclusory allegations,
improbable inferences, and unsupported speculation.” Medina-Muñoz v. R.J. Reynolds
Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
BACKGROUND
Except where otherwise noted, the following facts are drawn from the parties’
Local Rule 561 submissions.2
Local Rule 56 is designed to “relieve the district court of any responsibility to ferret
through the record to discern whether any material fact is genuinely in dispute.” CMI Capital
Market Inv. v. Gonzalez-Toro, 520 F.3d 58, 62 (1st Cir. 2008). It requires a party moving for
summary judgment to accompany its motion with a brief statement of facts, set forth in numbered
paragraphs and supported by citations to the record that the movant contends are uncontested and
material. D.P.R. Civ. R. 56(b), (e). The opposing party must admit, deny, or qualify those facts,
with record support, paragraph by paragraph. Id. 56(c), (e). The opposing party may also present,
in a separate section, additional facts, set forth in separate numbered paragraphs. Id. 56(c).
Litigants ignore the Local Rule “at their peril.” Mariani-Colón v. Dep’t of Homeland Sec. ex rel.
Chertoff, 511 F.3d 216, 219 (1st Cir. 2007).
1
Cornelius v. Caribbean University, Inc., et al., Civil No. 13-1873 (BJM)
3
Caribbean is a non-profit private university that offers undergraduate and graduate
degree programs via four campuses in Puerto Rico: Bayamon, Carolina, Ponce, and Vega
Baja. Compl. ¶ 3.1; Docket No. 73-7 at 2. Ana Cucurella Adorno (“Cucurella”) is the
University’s President; Sonia Pacheco Collado (“Pacheco”) is the University’s Academic
Director for the Ponce campus; and Estades is a professor who teaches at the Ponce
campus. CSUF ¶¶ 1, 3, 46. Cornelius, a black student, was enrolled in Caribbean’s
undergraduate engineering program and attended classes at the University’s campus in
Ponce, Puerto Rico. Compl. ¶ 3.0.
Cornelius first met Estades when he enrolled in his Surveying course, a semesterlong class that began in January 2012. CSUF ¶ 1; FSCF ¶ 1. During this course, Estades
made somewhat critical comments about Cornelius’s work: that his nails would get dirty
if he used the instruments in a certain way; that he was hesitant to pick up or carry the
instruments; that he relied on other students to do the work; and that he did not want to do
the work. CSUF ¶ 4. Toward the end of the semester, sometime around May 2012,
Estades and Cornelius got into an argument in the University’s library. FSCF ¶¶ 3–7.
Estades’s Statement of Uncontested Facts (“ESUF”), Docket No. 71; Caribbean’s
Statement of Uncontested Facts (“CSUF”), Docket No. 73; Cornelius’s First Statement of
Contested Facts (“FSCF”), Docket No. 82; and Cornelius’s Second Statement of Contested Facts
(“SSCF”), Docket No. 88. Defendants moved to strike the FSCF and SSCF, arguing that they do
not strictly comply with Local Rule 56 and that they rely on the affidavits of two previously
undisclosed witnesses: Hector Matos (“Matos”) and Oscar Perez Becerra (“Perez”). Docket Nos.
91-1, 92-1. While neither Matos nor Perez were disclosed during the parties’ initial or joint
disclosures, see Docket Nos. 59, 91-2, Matos’s affidavit need not be stricken because he was
revealed during Cornelius’s deposition. Docket No. 71-1 at 214–15; Rojas v. GMD Airlines
Servs., Inc., No. CIV. 13-1578 BJM, 2015 WL 3658071, at *3 (D.P.R. June 12, 2015)
(“supplementation is only required if the additional information has not otherwise been disclosed
during the discovery process”) (citing Fed. R. Civ. P. 26(e)(1)(A)). Perez’s affidavit is not
similarly situated––as a review of the record indicates that he was first disclosed in Cornelius’s
opposition to the summary judgment motions. See Pina v. Children's Place, 740 F.3d 785, 793
(1st Cir. 2014) (within court’s discretion to strike testimony included in affidavit of person not
disclosed during initial disclosures); Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 5 (1st
Cir. 1994) (“we think it significant that the affidavit was offered only after defendants had filed
motions for summary judgment”). Cornelius did not come forward with evidence to the contrary,
and so Perez’s affidavit is stricken. After doing so, I do not read the FSCF or SSCF as creating a
genuine dispute of material fact.
2
Cornelius v. Caribbean University, Inc., et al., Civil No. 13-1873 (BJM)
4
Seemingly challenging Cornelius to a fight, Estades asked Cornelius to accompany him
outside so they could “solve this right now.” FSCF ¶ 4. Apparently up for the challenge,
Cornelius followed Estades outside. FSCF ¶ 4. After exchanging a few words, the standoff diffused and the two went on their way. FSCF ¶ 5. Cornelius did not report to the
University the incidents up to this juncture, and claimed he did not do so because he
planned to take Estades’s Advanced Surveying course. FSCF ¶ 7.
The following semester, Cornelius enrolled in Advanced Surveying, which was
held from August to December 2012. ESUF ¶ 2. Around the end of December 2012 or
early January 2013, Cornelius learned that he received a “B” as his final grade in
Advanced Surveying. ESUF ¶ 3. He thought he had earned 100% of the points for the
class and so did not agree with the percentage points he actually received: 87%. ESUF ¶¶
4–5. He challenged that grade when the new semester began in 2013 by submitting the
necessary form to the University’s Registrar’s Office. ESUF ¶¶ 5, 7. Though he does not
recall anything that he included in the form, he is sure that he did not immediately receive
a response from the University. ESUF ¶¶ 8–9.
On the afternoon of February 12, 2013, Cornelius was in the University’s library
with a fellow student, Jean Carlos Ayala (“Ayala”), who also had requested a grade
change from Estades. ESUF ¶ 10. Estades approached them to discuss each of their
requested grade revisions, starting with Ayala. ESUF ¶ 12. As the two discussed the
matter, Estades started to “get mad.” ESUF ¶ 13. At this point, Cornelius interjected to
discuss his request for a grade change. ESUF ¶ 13. Irked by the interjection, Estades told
Cornelius, “Shut up, you cocky man,” and continued talking with Ayala. ESUF ¶ 13. In
Cornelius’s presence, Estades next told Ayala that Cornelius was a “cocky man” and
“little crybaby.” ESUF ¶ 14. Estades continued to insult Cornelius, became angrier, and
challenged him to go outside because they were going to “solve this as men.” ESUF ¶¶
15–16.
Cornelius v. Caribbean University, Inc., et al., Civil No. 13-1873 (BJM)
5
Apparently accepting the challenge, Cornelius followed him into the library’s
lobby area. ESUF ¶ 17. Cornelius told Estades that he “was not well” and that he was “as
much of a professor as” Estades. ESUF ¶ 17. Upon hearing this, Estades became even
angrier, called Cornelius an “asshole,” and asked him to go outside so that he could
“break Cornelius’s face.” ESUF ¶ 18. Cornelius followed Estades into an outdoor patio
area, where Estades called Cornelius a “cocky black man” and leveled a “full-swing slap”
onto Cornelius’s face and chest. ESUF ¶¶ 19–21. Estades then “got in Cornelius’s face,”
prompting Cornelius to hit him, in his words, “as men fight.” ESUF ¶ 21. Once the
scuffle ended and the dust cleared, Cornelius apparently had gotten the better of Estades:
the latter’s face was bloodied and his eyes injured, while Cornelius remained virtually
unscathed. ESUF ¶¶ 22–25.
Following the bout, and in the presence of Ayala, other professors, and university
personnel, Estades claimed that Cornelius had hit him from behind “like a traitor.” ESUF
¶ 26. Also at that time Estades told Cornelius that he was a “homosexual,” “cocky man,”
“little lady,” “little woman,” “crybaby,” “black man,” and “asshole.” ESUF ¶ 27. He also
expressed that Cornelius “does not have what it takes to be an engineer.” ESUF ¶ 32;
FSCF ¶ 29. Cornelius had the police summoned; upon their arrival, the police spoke with
Pacheco, the University’s Academic Director for the Ponce campus. CSUF ¶ 24; FSCF ¶
25. Thereafter, Cornelius was approached by Caribbean’s security guards and told that,
per Pacheco’s order, he was expelled from the University and had to leave immediately.
CSUF ¶ 25. After speaking with the police about the incident, Cornelius refused to leave
the University’s campus and went to his evening class. CSUF ¶¶ 27–29.
Pacheco arrived to the classroom accompanied by two of the University’s security
guards and asked Cornelius to leave. CSUF ¶ 30. Cornelius exited the classroom and was
escorted away from the campus by Pacheco. CSUF ¶ 31. At that time, Pacheco informed
Cornelius that he had actually been summarily suspended for five days, and that he would
have to meet with Ramon Vazquez, Director of the Dean’s Office, before being allowed
Cornelius v. Caribbean University, Inc., et al., Civil No. 13-1873 (BJM)
6
to return. CSUF ¶¶ 31, 35; Docket No. 73-7 at 2 (identifying Vazquez’s position with the
University). She also told Cornelius that, per the University’s handbook, an internal
investigation would be conducted by a Disciplinary Committee. CSUF ¶ 36. On February
13, Pacheco sent Cornelius a letter confirming his five-day suspension from Caribbean.
CSUF ¶ 37. Docket No. 73-5.
Following the University’s regulations, Caribbean conducted an investigation
into the altercation, which included an opportunity for Cornelius to challenge his
suspension. CSUF ¶ 39; Docket No. 73-7. On February 15, an informal hearing was held
before a Disciplinary Committee, and Cornelius was asked to attend. Docket No. 73-7.
Present at the hearing were Pacheco, an attorney for the University, and Wilmer Laboy.
CSUF ¶ 42. Cornelius attended the hearing, explained that his attorney was heading
toward the University for the hearing, and requested to have his attorney present. FSCF ¶
35. That request was denied. FSCF ¶ 35. Cornelius agreed to participate in the hearing
only if the University agreed to produce the minutes. FSCF ¶ 36. The University agreed
to do so, and Cornelius presented his version of the events leading up to the altercation.
CSUF ¶ 42. The Disciplinary Committee also heard the other version of the events: that
Cornelius had sucker-punched Estades. CSUF ¶¶ 42, 45.
During the hearing, Cornelius also informed the committee of certain racially
disparaging comments made by Estades. CSUF ¶ 43. That same day, he also sent to
Pacheco a letter addressed to Vazquez. CSUF ¶ 43. Though Cornelius did not attach the
letter to his opposition, the University acknowledges the letter stated that Estades had
“made comments referring to the color of his skin.” CSUF ¶ 43. Following the hearing,
and after preparing a report of the incidents, Vazquez recommended Cornelius’s
expulsion from the University that same day. CSUF ¶ 45; Docket No. 73-6. While
acknowledging that there were multiple versions of the events on February 12, Vazquez
found that Cornelius had violated four provisions of the University’s General Student
Regulations when he fought Estades. Docket No. 73-6. The University’s President,
Cornelius v. Caribbean University, Inc., et al., Civil No. 13-1873 (BJM)
7
Cucurella, expelled Cornelius that same day. Docket No. 73-7. Citing six provisions of
the University’s General Student Regulations, Cucurella noted that the decision to expel
Cornelius was made collectively by “University Authorities” after the investigation,
analysis, and evaluation by the Disciplinary Committee. Docket No. 73-7. Cornelius does
not suggest Estades had any influence in this decision, acknowledging that Estades heard
about the expulsion through “hallway gossip.” FSCF ¶ 38.
DISCUSSION
Caribbean contends the Tile VI retaliation claim lacks merit because it suspended
and later expelled Cornelius from the University because of the February 12 brawl, not
for the racial-discrimination complaint lodged on the same day as the February 15
hearing before the Disciplinary Committee. Estades contends the slander claim lacks
merit because his statements were not defamatory and, in any event, did not harm
Cornelius’s reputation.
I.
Retaliation
Title VI provides that “[n]o person in the United States shall, on the ground of
race, color, or national origin, be excluded from participation in, be denied the benefits
of, or be subjected to discrimination under any program or activity receiving Federal
financial assistance.” 42 U.S.C. § 2000d; see also Gebser v. Lago Vista Indep. Sch. Dist.,
524 U.S. 274, 286 (1998) (Title VI “prohibits race discrimination . . . in all programs
receiving federal funds,” including “education programs.”).3 To protect those who assert
their rights under Title VI, the anti-retaliation regulation provides that “[n]o recipient or
other person shall intimidate, threaten, coerce, or discriminate against any individual for
the purpose of interfering with any right or privilege secured by Section 601 of [the Civil
Rights] Act or this part, or because he has made a complaint, testified, assisted, or
participated in any manner in an investigation, proceeding or hearing under this part.” 34
3
Caribbean does not dispute at this juncture that it receives federal financial assistance.
Cornelius v. Caribbean University, Inc., et al., Civil No. 13-1873 (BJM)
8
C.F.R. § 100.7(e); Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 177 (2005)
(Jackson) (“Section 602 of Title VI authorizes federal agencies to effectuate the
provisions in § 601 by enacting regulations.”). As the First Circuit has explained, “[t]his
broadly protective anti-retaliation regulation is firmly grounded in the enforcement
provisions of Title VI.” Weber v. Cranston Sch. Comm., 212 F.3d 41, 48 (1st Cir. 2000).
Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. § 1681,
“was modeled after Title VI,” and so the Court has explained that “[t]he two statutes
operate in the same manner.” Gebser, 524 U.S. at 286 (1998); see also Cannon v. Univ.
of Chi., 441 U.S. 677, 696 (1979) (“The drafters of Title IX explicitly assumed that it
would be interpreted and applied as Title VI had been during the preceding eight years.”).
In light of the “parallel” between Title IX and Title VI, Gebser, 524 U.S. at 286, the two
statutes are construed in pari materia. Shotz v. City of Plantation, 344 F.3d 1161, 1170
n.12 (11th Cir. 2003). In Jackson, the Supreme Court held that “Title IX’s private right of
action encompasses suits for retaliation,” 544 U.S. at 178, and courts have reasoned that
such a claim is also available under Title VI. Weiler v. Vill. of Oak Lawn, 86 F. Supp. 3d
874, 889 (N.D. Ill. 2015) (“Every court to consider the question since Jackson has
concluded that Title VI encompasses a claim for retaliation, because Title IX and Title VI
are interpreted in parallel.”) (collecting cases).
With respect to the analytical framework that governs such claims, the First
Circuit and others have held that the Title VII retaliation framework applies to Title IX
retaliation claims. See Milligan v. Bd. of Trustees of S. Ill. Univ., 686 F.3d 378, 388 (7th
Cir. 2012); Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 67 (1st Cir. 2002) (“the
jurisprudence of Title VII supplies an applicable legal framework” to Title IX retaliation
claims). And because Titles IX and VI operate in the same manner and are construed in
pari materia, the Title VII burden-shifting framework applied to Title IX retaliation
claims has in turn been applied to Title VI retaliation claims. Bowers v. Bd. of Regents of
Univ. Sys. of Ga., 509 F. App’x 906, 912 n.8 (11th Cir. 2013); Peters v. Jenney, 327 F.3d
Cornelius v. Caribbean University, Inc., et al., Civil No. 13-1873 (BJM)
9
307, 320 (4th Cir. 2003) (Title VII retaliation framework applied to Title VI claim);
Palmer v. Penfield Cent. Sch. Dist., 918 F. Supp. 2d 192, 199 (W.D.N.Y. 2013).
Accordingly, in the absence of “direct evidence of retaliation,” a plaintiff seeking
to establish a prima facie case of retaliation under Title VI must show: “(1) protected
activity by the plaintiff; (2) knowledge by the defendant of the protected activity; (3) an
adverse school-related action; and (4) a causal connection between the protected activity
and the adverse action.” See Papelino v. Albany Coll. of Pharm. of Union Univ., 633 F.3d
81, 91 (2d Cir. 2011); Emeldi v. Univ. of Or., 673 F.3d 1218, 1232 (9th Cir.), republished
as amended, 698 F.3d 715 (9th Cir. 2012) (same); Peters, 327 F.3d at 320; Frazier, 276
F.3d at 67. That showing made, “the burden shifts to the defendant to articulate a
legitimate, nondiscriminatory reason for its actions.” Papelino, 633 F.3d at 92 (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). “After the defendant has
done so, the burden shifts back to the plaintiff to demonstrate that the articulated reasons
are pretextual.” Papelino, 633 F.3d at 92 (citing McDonnell Douglas Corp., 411 U.S. at
802).
In this case, Cornelius has not come forward with any direct evidence of
retaliation. See Docket No. 87. And while Caribbean does not dispute that Cornelius was
subjected to a school-related adverse action when he was expelled from the University, it
contends that he is unable to establish the other elements of his prima facie case. See
Docket No. 92-1 at 3.
A.
Protected Activity
At the outset, Caribbean contends that Cornelius did not engage in protected
activity. In Papelino, a student received a failing grade in a course, and was later expelled
from the college, after he was falsely accused of cheating by a professor. 633 F.3d at 87.
In that case, the Second Circuit held that the student engaged in protected activity when
he complained to the college’s dean of student affairs about the professor’s
discriminatory conduct, which included unwanted sexual comments and advances. Id. at
Cornelius v. Caribbean University, Inc., et al., Civil No. 13-1873 (BJM)
10
89, 92. Likewise, the Emeldi court held that the student engaged in protected activity
when she complained to the dean of the college of education and a university
administrator about “gender-based institutional bias” and “unequal treatment of female
graduate students.” 673 F.3d at 1224. As in Papelino and Emeldi, Cornelius engaged in
protected activity on February 15, when he complained about disparaging racial
comments to the Disciplinary Committee and sent a letter raising the same complaint to
Pacheco (the University’s Academic Director of the campus in Ponce) so that she could
deliver it to Vazquez (the Director of the Dean’s Office). See also 34 C.F.R. § 100.7(e).
Cornelius suggests that he engaged in protected activity before February 15, but
has not come forward with record evidence to support that claim. Indeed, the record
evidence negates the complaint’s allegation that Cornelius made the complaint to the
Disciplinary Committee and sent the letter to Vazquez on February 12. Compl. ¶ 4.2. And
although Cornelius claims he “intended to make a formal complaint” on the day of the
altercation, there is no evidence that he actually complained before February 15. See
Docket No. 87 at 13; SSCF ¶ 32. Thus, a reasonable jury could find that Cornelius
engaged in protected activity on February 15.
B.
Knowledge
Although it is undisputed that Cornelius submitted a letter complaining about race
discrimination on February 15 and that he had raised the issue before the Disciplinary
Committee, the University suggests that its decision makers had no knowledge about the
discrimination complaint. Docket No. 74 ¶¶ 14–15. In Frazier, the First Circuit held that
the plaintiffs’ Title IX retaliation claims could not proceed where there was no allegation
that the alleged retaliator knew about the discrimination complaint. 276 F.3d at 67. In
contrast, the Papelino court held that this element was established where the student
lodged his discrimination complaint with the college’s dean of student affairs and there
was evidence that the complaint had been discussed by the college faculty during and
after the college’s honor code appeals process. 633 F.3d at 92.
Cornelius v. Caribbean University, Inc., et al., Civil No. 13-1873 (BJM)
11
In this case, Cucurella was the person who made the ultimate decision to expel
Cornelius. Docket No. 73-7. She made this decision after Vazquez’s report and
recommendation, which explained that Cornelius had been involved in a fight with
Estades, that the Disciplinary Committee had credited Estades’s version of the events,
and that Cornelius had broken several school rules when he fought Estades. Docket No.
73-6. Because the letter does not inform Cucurella of the discrimination complaint, it is
arguable that Cucurella’s final decision to expel Cornelius was made without knowledge
of the discrimination complaint. See id. On the other hand, it is undisputed that Cornelius
sent Pacheco a letter that she was to deliver to Vazquez in which he complained that
Estades had made demeaning comments about the color of his skin. CSUF ¶ 43.
Cornelius also raised the issue during the February 15 administrative hearing, at which
time Pacheco told Cornelius to send the letter and gave him her e-mail and fax number.
CSUF ¶ 43. Because there is no contention that Vazquez did not receive the letter, and
because he was the person who recommended Cornelius’s expulsion from the University,
a reasonable jury could find that Vazquez, along with Pacheco, had knowledge of the
complaint.
A reasonable jury could similarly so find with respect to the person who made the
final decision to expel Cornelius: the University’s President, Cucurella. The expulsion
letter provides that “[f]ollowing the investigation, analysis and evaluation by the
Disciplinary Committee for the Ponce Campus and the University Authorities, we have
decided to expel you from Caribbean University.” Docket No. 73-7. As in Papelino, a
reasonable jury could find that the University’s decision makers, including Cucurella,
knew about the discrimination complaint because both Pacheco and Vazquez knew of the
complaint and were part of the investigation, because Cornelius raised the issue about the
racial comments during the Disciplinary Committee, and because the letter states the
decision to expel Cornelius was made collectively by “University Authorities.” See, e.g.,
Cornelius v. Caribbean University, Inc., et al., Civil No. 13-1873 (BJM)
12
Papelino, 633 F.3d at 92. Drawing all reasonable inferences in Cornelius’s favor, there is
sufficient evidence to establish this element of his prima facie case.
C.
Causation
Caribbean contends that Cornelius’s case founders on the causation element. To
determine whether causation exists, courts consider the temporal proximity between the
protected activity and the adverse action, the sequence of events, any departures from
normal procedure, and contemporaneous statements by the decision makers. See, e.g.,
Del Pilar Salgado v. Abbot Labs., 520 F. Supp. 2d 279, 292 (D.P.R. 2007). Yet,
“chronological proximity does not by itself establish causality, particularly if ‘[t]he larger
picture undercuts any claim of causation.’” Wright v. CompUSA, Inc., 352 F.3d 472, 478
(1st Cir. 2003) (second alteration in original) (quoting Soileau v. Guilford of Me., Inc.,
105 F.3d 12, 16 (1st Cir. 1997)). This point is aptly illustrated by Sawyer v. Columbia
College, 864 F. Supp. 2d 709, 722 (N.D. Ill. 2012) (Sawyer).
In Sawyer, the student received a “D” in his Introduction to Marketing course, and
contacted one of the college’s administrators to request a grade change. Id. at 711, 723.
Two days later, the student complained that “he was not given the same opportunities as
other students because he was the only African–American in the class.” Id. at 723. The
administrator requested to review the student’s coursework for the class, “advised him of
the steps he needed to take to follow through on his claim and asked him to document all
instances of racial discrimination that may have occurred in the class.” Id. Three days
later, and “in the midst of his grade appeal, [the student] was involved in [a] physical
altercation with” another student. Id. As a result, he was suspended from the college. Id.
Finding insufficient evidence of a causal connection between the discrimination
complaint and the suspension, the Sawyer court granted summary judgment on the
student’s Title VI retaliation claim. Id. at 723–24. It reasoned that “[t]he fact that [the
student] made his discrimination complaint in close proximity to his eventual suspension
Cornelius v. Caribbean University, Inc., et al., Civil No. 13-1873 (BJM)
13
is not enough,” particularly where the student “failed to meet the College’s legitimate
expectations.” Id.
In this case, Cornelius hangs his hat on the temporal proximity between his
discrimination complaint and his expulsion––both of which occurred on February 15––
arguing that he “received permanent suspension after Caribbean received formal
complaint against Estades.” Docket No. 87 at 13. Yet, the “sequence of events,” Del Pilar
Salgado, 520 F. Supp. 2d at 292, reveals a “larger picture [that] undercuts any claim of
causation.” Wright, 352 F.3d at 478. Cornelius fought with Professor Estades on February
12, and was summarily suspended for five days. On February 15, the University
requested his attendance at the hearing before the Disciplinary Committee. Cornelius
does not suggest that Estades was one of the “University Authorities” who decided to
expel him from the University, and acknowledges that Estades heard about Cornelius’s
expulsion through “hallway gossip.” Because the University began the proceedings to
suspend and later expel Cornelius from the University before he lodged his
discrimination complaint on February 15, and because Estades did not spearhead the
disciplinary proceedings against Cornelius, temporal proximity by itself is insufficient to
establish the requisite causal link in this case. See Sawyer, 864 F. Supp. 2d at 722. Having
failed to establish a prima facie case of retaliation, summary judgment is granted on
Cornelius’s Title VI retaliation claim.
D.
Nonretaliatory Reason & Pretext
Even if Cornelius had established a prima facie case, he failed to show that the
University’s legitimate, nonretaliatory reason was pretextual. Once the defendant
produces a legitimate nondiscriminatory reason for its action, “[t]he pretext inquiry
focuses on the” defendant, and whether the defendant “believed that its stated reason for
the” action “was credible.” Ponte v. Steelcase Inc., 741 F.3d 310, 323 (1st Cir. 2014).
“For a plaintiff to ‘impugn the veracity’ of the [defendant’s] proffered reason is
insufficient; instead, a plaintiff must proffer specific facts that would enable a reasonable
Cornelius v. Caribbean University, Inc., et al., Civil No. 13-1873 (BJM)
14
factfinder to conclude that the [defendant’s] reason for [the adverse action] was a ‘sham’
intended to cover up the [defendant’s] true motive.” Id. And in attempting to demonstrate
that the proffered reason was pretextual, “it is not enough that [defendant’s] perception
may have been incorrect.” Bennett v. Saint-Gobain Corp., 507 F.3d 23, 31 (1st Cir.
2007).
In this case, the University contends that it expelled Cornelius from the University
for violating several school rules during the February 12 physical altercation. This is
surely a legitimate, nondiscriminatory reason. See, e.g., Sawyer, 864 F. Supp. 2d at 722.
And even if the University had an incorrect perception that Cornelius, rather than
Estades, was primarily responsible for the fight, this incorrect perception is insufficient to
demonstrate pretext. See Bennett, 507 F.3d at 31. Importantly, Cornelius did not attempt
to address Caribbean’s legitimate, nonretaliatory reason, and so did not “proffer specific
facts that would enable a reasonable factfinder to conclude” that the University’s reason
for expelling Cornelius was a “sham.” Bennett v. Saint-Gobain Corp., 507 F.3d 23, 31
(1st Cir. 2007); see also Muniz-Cabrero v. Ruiz, 23 F.3d 607, 609 (1st Cir. 1994) (“A
party opposing a summary judgment motion must inform the trial judge of the reasons,
legal or factual, why summary judgment should not be entered. If it does not do so, and
loses the motion, it cannot raise such reasons on appeal.”).
To be sure, Cornelius does mention that the University refused to let him have his
attorney present during the hearing before the Disciplinary Committee. Yet, because this
decision was made before Cornelius lodged the discrimination complaint, it could not
have been driven by a retaliatory animus. Moreover, in Flaim v. Medical College of Ohio,
418 F.3d 629, 636, 640 (6th Cir. 2005), the court held that a college was not required to
permit the student to have an attorney present during a non-complex disciplinary
proceeding that resulted in the student’s expulsion from the college. And while Cornelius
also points out that the University had an attorney present for the hearing, he does not
assert that the hearing was spearheaded by the attorney. See Jaksa v. Regents of Univ. of
Cornelius v. Caribbean University, Inc., et al., Civil No. 13-1873 (BJM)
15
Mich., 597 F. Supp. 1245, 1252 (E.D. Mich. 1984) (“Had an attorney presented the
University's case, or had the hearing been subject to complex rules of evidence or
procedure, plaintiff may have had a constitutional right to representation.”). In sum, even
if Cornelius had established a prima facie case of retaliation, summary judgment would
be appropriate because he failed to proffer specific facts that would allow a reasonable
jury to find that the University’s tendered nonretaliatory reason was pretextual.
II.
Defamation
Under Puerto Rico law, “a private plaintiff asserting a defamation claim against a
private defendant must show that the defendant (1) made a false statement, (2) in a
negligent manner, (3) causing actual damage to the plaintiff.” Baltodano v. Merck, Sharp
& Dohme (I.A.) Corp., 637 F.3d 38, 43 (1st Cir. 2011). The cause of action for
defamation and libel has three separate sources: (1) Article II, section 8 of the Puerto
Rico Constitution; (2) the Libel and Slander Act of 1902, P.R. Laws Ann. tit. 32, §§
3141–49; and (3) Article 1802 of the Civil Code, P.R. Laws Ann. tit. 31, § 5141. Aponte
v. Calderon, 284 F.3d 184, 197 (1st Cir. 2002). “In interpreting these various sources of
law, the Puerto Rico Supreme Court has explicitly said that Puerto Rico law on libel and
slander follows the common law tradition.” Id. (citing Villaneuva v. Hernández Class, 28
P.R. Offic. Trans. 618 (1991) (“Our libel and slander law . . . follows the Anglo–Saxon
common law . . . .”)). Accordingly, “Puerto Rico courts frequently cite stateside
jurisdictions when interpreting their laws protecting personal reputation.” Aponte, 284
F.3d at 197.
In this case, Cornelius contends that Estades made several slanderous statements
before, during, and after the February 12 physical altercation by calling him a
“homosexual,” “little woman,” “crybaby,” and “cocky black man.”4 Docket No. 81 at 11.
4
While Cornelius also highlights statements made before the February 12 altercation, the
amended complaint did not plead those prior statements in the slander claim. See Docket No. 3.
In any event, Cornelius does not assert that the statements made during the Surveying Course
Cornelius v. Caribbean University, Inc., et al., Civil No. 13-1873 (BJM)
16
He also takes issue with Estades’s statement that Cornelius does not have what it takes to
be an engineer. Id. “Whether or not particular spoken or written words are reasonably
susceptible to a defamatory meaning is a question of law for the Court to determine in the
first instance.” Yesner v. Spinner, 765 F. Supp. 48, 51 (E.D.N.Y. 1991); accord Damon v.
Moore, 520 F.3d 98, 103 (1st Cir. 2008). While Cornelius homes in on the precise
comments made, “[c]ontext matters in assessing such claims: ‘The court [must] examine
the statement in its totality in the context in which it was uttered or published. The court
must consider all the words used, not merely a particular phrase or sentence.’” Amrak
Prods., Inc. v. Morton, 410 F.3d 69, 72–73 (1st Cir. 2005) (quoting Myers v. Bos.
Magazine Co., 380 Mass. 336 (1980)).
Following well-established common law, the First Circuit and others have
recognized that “[w]ords uttered face to face during an altercation may well be
understood merely as abuse or insult,” not defamatory statements. Stanton v. Metro
Corp., 438 F.3d 119, 131 (1st Cir. 2006) (quoting Restatement (Second) of Torts § 566
cmt. e (1977)); Beverly Enters., Inc. v. Trump, 182 F.3d 183, 187 (3d Cir. 1999) (citing
Restatement (Second) of Torts § 566 cmt. e). The Restatement (Second) of Torts aptly
explains that “vulgar name-calling is frequently resorted to by angry people without any
real intent to make a defamatory assertion, and it is properly understood by reasonable
listeners to amount to nothing more. This is true particularly when it is obvious that the
speaker has lost his temper and is merely giving vent to insult.” Restatement (Second) of
Torts § 566 cmt. e. For example, “when, in the course of an altercation, the defendant
loudly and angrily calls the plaintiff a bastard in the presence of others, he is ordinarily
not reasonably to be understood as asserting the fact that the plaintiff is of illegitimate
were false (i.e., that he relied on other students to do the work). Moreover, the other statements
made before the February 12 altercation constitute the same nonactionable name-calling and
epithets discussed herein.
Cornelius v. Caribbean University, Inc., et al., Civil No. 13-1873 (BJM)
17
birth but only to be abusing him to his face.” Id. In cases presenting such circumstances,
“[n]o action for defamation will lie.” Id.
With this authority underfoot, and after considering the specific context in which
the statements above were made, Cornelius’s contention that the statements Estades made
are actionable is untenable. See Stanton, 438 F.3d at 131; Restatement (Second) of Torts
§ 566 cmt. E. These statements were made before, during, and after the February 12
physical altercation. Because the statements were made when Estades, as well as
Cornelius, had “lost his temper,” the name-calling and epithets that were launched do not
support an action for defamation. See id; Manns v. Leather Shop Inc., 960 F. Supp. 925,
929–30 (D.V.I. 1997) (“No matter how obnoxious, insulting, or tasteless such namecalling, it is regarded as a part of life for which the law of defamation has no remedy.”).
Indeed, in light of the context in which the statements were made, Ayala understood the
barrage of statements as nothing more than attempts to insult Cornelius. CSUF ¶¶ 32–34.
Moreover, Estades’s statement that he does not believe that Cornelius has what it takes to
be an engineer is a statement of his opinion, not one of fact, and so it would not be
actionable in any event. See Piccone v. Bartels, 785 F.3d 766, 772 (1st Cir. 2015)
(“Where an expressive phrase, though pejorative and unflattering, cannot be ‘objectively
verified,’ it ‘belongs squarely in the category of protected opinion.’”) (quoting Levinsky’s
v. Wal–Mart Stores, Inc., 127 F.3d 122, 129 (1st Cir. 1997)). Accordingly, Cornelius’s
slander claim lacks merit.
To be sure, Cornelius presses that Estades called him a “homosexual.” A
defamation suit under Puerto Rico law is meant “to provide compensation for the harm to
the reputation and loss of good name of the person libeled or slandered.” Soc. de
Gananciales v. El Vocero de P.R., No. CE-91-414, 1994 WL 909249 (P.R. Feb. 7, 1994).
The majority of courts that previously found a false accusation of homosexuality to be
slander per se reasoned that such a statement imputed criminal conduct. See Albright v.
Morton, 321 F. Supp. 2d 130, 137 (D. Mass. 2004), aff'd sub nom., Amrak Prods., Inc. v.
Cornelius v. Caribbean University, Inc., et al., Civil No. 13-1873 (BJM)
18
Morton, 410 F.3d 69 (1st Cir. 2005); Plumley v. Landmark Chevrolet, 122 F.3d 308,
310–11 (5th Cir. 1997) (“when Hamilton called Plumley a ‘faggot’, Hamilton imputed
the crime of sodomy to Plumley. Therefore, the alleged remark is slander per se . . . .”)
(Plumley). In Lawrence v. Texas, 539 U.S. 558, 578 (2003) (Lawrence), the Supreme
Court held a Texas statute criminalizing homosexual conduct unconstitutional under the
Fourteenth Amendment’s Due Process Clause, reasoning that “two adults who, with full
and mutual consent from each other, engaged in sexual practices common to a
homosexual lifestyle” were “entitled to respect for their private lives” and so the “State
[could not] demean their existence or control their destiny by making their private sexual
conduct a crime.”
Reasoning that Lawrence has extinguished the rationale underlying cases like
Plumley, recent case law holds that falsely accusing a person of being a homosexual is
not slander per se. Stern v. Cosby, 645 F. Supp. 2d 258, 275 (S.D.N.Y. 2009) (“the fact
[that there is] prejudice on the part of some does not warrant a judicial holding that gays
and lesbians, merely because of their sexual orientation, belong in the same class as
criminals.”); Albright, 321 F. Supp. 2d at 138 (“If this Court were to agree that calling
someone a homosexual is defamatory per se—it would, in effect, validate that sentiment
and legitimize relegating homosexuals to second-class status.”); Carvajal v. Pride Indus.,
Inc., No. 10CV2319-GPC MDD, 2013 WL 1728273, at *12 n.7 (S.D. Cal. Apr. 22, 2013)
(same); Garcia v. MAC Equip., Inc., No. CIV.A. H-09-902, 2011 WL 4345205, at *13
(S.D. Tex. Sept. 15, 2011) (same). And at least one court has held that such a statement is
not susceptible to a defamatory meaning. Murphy v. Millennium Radio Grp. LLC, No.
CIV A 08-1743 JAP, 2010 WL 1372408, at *6 (D.N.J. Mar. 31, 2010) (“assertion that
someone is homosexual is not defamatory”), vacated on other grounds, 650 F.3d 295,
310 n.19 (3d Cir. 2011).
Having noted that falsely accusing someone of being a homosexual can no longer
be considered slander per se, I need not delve into whether the remark was susceptible to
Cornelius v. Caribbean University, Inc., et al., Civil No. 13-1873 (BJM)
19
a defamatory meaning in this case for three reasons. See, e.g., Albright, 321 F. Supp. 2d
at 138. Most importantly, and as explained above, the remark was made in the midst of a
physical altercation––when Estades had clearly lost his temper and was attempting to
insult Cornelius. See, e.g., Restatement (Second) of Torts § 566 cmt. e. The context in
which the statement was made places the statement outside the ambit of protections
afforded by defamation law. See Manns, 960 F. Supp. at 929–30.
Second, Cornelius, who was enrolled in the engineering program and presumably
strives to become an engineer, does not assert that “he lost any specific professional
opportunities because of” this specific statement, nor did he adduce specific evidence to
support that particular assertion. See Albright, 321 F. Supp. 2d at 139. Without doing so,
the claim he presses is doing “nothing more than trading in the same kinds of stereotypes
that recent case law and good sense disparage.” Id.
Third, Cornelius does not cite any Puerto Rico law that is contrary to the
foregoing, and so there is nothing to suggest that the result would be different under the
law of that jurisdiction. See Aponte, 284 F.3d at 197 (“as currently developed by Puerto
Rican courts, there is nothing that suggests that we should treat the protections accorded
to reputation by Puerto Rico any more broadly than those granted in other United States
jurisdictions”). Thus, summary judgment is granted on Cornelius’s slander claim.
CONCLUSION
For the foregoing reasons, the motions for summary judgment are GRANTED,
and all claims are DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 18th day of May 2016.
S/Bruce J. McGiverin
BRUCE J. MCGIVERIN
United States Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?