Gabriel v. Albany College of Pharmacy and Health Sciences - Vermont Campus (ACPHS) et al
Filing
51
OPINION AND ORDER granting 30 Motion to Dismiss; granting 34 Motion to Dismiss; granting 47 Motion for Leave to File Sur-Reply as to 34 MOTION to Dismiss. Gabriel's breach of contract claims against Defendants are DISMISSED. Gabriel may file a Second Amended Complaint within 30 days. Signed by Judge William K. Sessions III on 10/3/2012. (law)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Matthew Gabriel, f/k/a
Matta Ghobreyal,
Plaintiff,
v.
Albany College of Pharmacy
and Health Sciences –
Vermont Campus (ACPHS),
Professor Dorothy Pumo,
Ronald A. DeBellis, Dean
Robert Hamilton, Assistant
Professor Joanna Schwartz,
Jason Long, Melissa Long,
President Dr. James J.
Gozzo, Associate Dean John
Denio, Dr. Peter J.
Cornish, Professor Gail
Goodman Snitkoff,
Professor Stefan Balaz,
Gerald Katzman,
Accreditation Council of
Pharmacy Education (ACPE),
Peter H. Vlasses,
Lindsay M. Antikainen,
Defendants.
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Case No. 2:12-cv-14
OPINION AND ORDER
(Docs. 30, 34 and 47)
While a student at the Vermont campus of the Albany
College of Pharmacy and Health Sciences (“ACPHS” or
“College”), pro se plaintiff Matthew Gabriel was accused of
plagiarism by one of his professors.
Gabriel now brings
this action, pro se, claiming that the accusation and
resulting punishment were discriminatory.
He also claims
that Defendants’ conduct constituted breach of contract.
There are sixteen Defendants in this case, including
ACPHS itself, ACPHS administrators, professors and students,
and the College’s General Counsel (“ACPHS Defendants”).
Gabriel also brings claims against the Accreditation Council
for Pharmacy Education (“ACPE”), its Executive Director and
Accreditation Facilitator (“ACPE Defendants”).
The ACPHS Defendants have moved to dismiss, arguing
first that Gabriel has failed to comply with the pleading
requirements of Fed. R. Civ. P. 8.
They further contend
that the Court lacks subject matter jurisdiction, and that
Gabriel has failed to state a plausible claim for relief.
The ACPE Defendants have also moved to dismiss for failure
to state a claim.
For the reasons set forth below, the
motions to dismiss are GRANTED, and Gabriel is granted leave
to amend his discrimination claims.
Factual Background
In the fall of 2009, Gabriel was a full-time student at
the ACPHS Vermont campus.
The Vermont campus is a satellite
of ACPHS’s primary campus in Albany, New York.
One of
Gabriel’s classes, Immunology, was taught by Professor
2
Dorothy Pumo.
On October 19, 2009, Professor Pumo assigned
a 450-word report based upon a lecture by Professor Gail
Goodman Snitkoff.
Professor Snitkoff’s lecture was
presented live at the Albany campus, and via video at the
Vermont campus.
Gabriel claims that one of his fellow students asked
Professor Pumo “about using material from internet sources
and the correct citation required” for the writing
assignment.
(Doc. 3 at 3.)
Professor Pumo allegedly told
the class “not to worry about it because Professor Snitkoff
did not mention this,” and that “there was not enough space
to include citations in a 450 word report.”
Id.
After the students submitted their reports, Professor
Pumo checked the reports for plagiarism using a program
called Turnitin.
According to the Amended Complaint, she
then informed the class:
I read through the [T]urnitin report, I have not
finished all of them, and I am distressed part of
that [sic] is a large number of you seemingly
copied full sentences from other works. I am
getting a lot of matches to extraneous papers from
other places. I am in no mood to report the
entire class for plagiarism; that said I will do
it if I have to. So I am giving everybody, well
most people anyway a free pass on one sentence
copied for this paper. I am not going to write up
everybody for copying one sentence.
3
Id. at 5 (emphases in original).
Professor Pumo later reported Gabriel for plagiarism.
When Gabriel asked whether other students had plagiarized as
well, Professor Pumo allegedly confirmed that they had, but
to a lesser degree.
Gabriel claims he offered to re-write
the assignment, and that although Professor Pumo said she
would consider this alternative, she did not communicate
with him again prior to reporting him to ACPHS Dean Ronald
DeBellis.
Gabriel refers to Professor Pumo’s allowance of limited
plagiarism as the “‘free pass’ phenomenon,” and claims that
the practice was unlawful.
Specifically, he contends that
the class syllabus was a contract between Pumo and her
students, yet the syllabus made no mention of the “‘free
pass’ phenomenon.”
He therefore argues that the award of
“free passes” constituted a breach of that contract.
Gabriel also claims that he was denied a “free pass” because
he is Egyptian American and a “Coptic Christian.”
Id. at 7.
Gabriel contends that two other incidents with
Professor Pumo support his discrimination claim.
First, he
alleges that prior to the plagiarism incident, Pumo
“inhibited the Plaintiff from using the bathroom during exam
4
[sic] . . . and allowed everybody else in the class to use
it.” Id. at 6.
Second, he claims that when one of his exam
times conflicted with his citizenship ceremony, Professor
Pumo initially refused to offer him a makeup date.
Although
a makeup date was ultimately set, Gabriel contends that it
resulted in his having two exams on the same day, and that
after the second exam he required medical treatment for a
severe tension headache.
The plagiarism charge was considered by the College’s
Honor Code Review Committee (“Committee”), comprised of
ACPHS students, professors, and administrators.
In a letter
delivered to Gabriel by Dean DeBellis, the Committee
informed Gabriel of its conclusion that he had, in fact,
committed plagiarism, and that he would receive a failing
grade for the writing assignment.
Gabriel also reports
having had an informal meeting with committee member Jason
Long, and a formal meeting with Professor Joanna Schwartz.
During both meetings, he was allegedly advised to accept his
punishment.
Gabriel claims that in its handling of the plagiarism
charge, ACPHS violated its own Honor Code in several
respects.
The alleged violations included: failure by
5
Professor Pumo to submit the allegation to the “Honor Code
Box” or in person to an Honor Code Faculty Co-Advisor;
failure to provide Gabriel with written notice of the
charges; failure to make an effort to mediate the issue;
failure to provide Gabriel with an advisor; failure to
provide a hearing; and failure to notify Gabriel of his
right to appeal the Committee’s decision.
Id. at 24-27.
Gabriel contends that the Honor Code, like the course
syllabus, constituted a contract between the college and its
students, and that Defendants breached that contract by
allowing Professor Pumo’s “free pass” policy.1
He also
claims that if he had been granted “the opportunity as an
Egyptian American Citizen to explain the situation,
plaintiff believes he would not have received a failing
grade and, more important, would not have suffered the
psychological and emotional distress and physical illness,
which plaintiff experienced thereafter.”
Id. at 19.
In November 2009, shortly after receiving the
1
The fact that Gabriel is bring a breach of contract claim based
upon alleged procedural violations is most clearly set forth in his
opposition to the ACPHS Defendants’ motion to dismiss. (Doc. 42 at
2,11, 14-15.) A court may consider such additional submissions by the
Plaintiff in an effort to clarify the scope of his allegations. See,
e.g., Johnson v. Wright, 234 F. Supp. 2d 352, 356 (S.D.N.Y. 2002)
(citing cases).
6
Committee’s ruling, Gabriel requested and was granted a
medical leave from school.
The request was supported by a
letter from Dr. Richard Ober, a consulting psychologist.
Dr. Ober reported that Gabriel had “referred himself to this
office for the treatment of a range of confusing emotional
responses to his circumstances.”
(Doc. 1-3 at 2.)
Dr. Ober
further opined that “[d]ue to a number of factors in his
life,” Gabriel was affected by “significant levels of
stress” that had resulted in anxiety, problems with sleep
and concentration, an “inability to enjoy normal activities,
appetite disturbance and consequent weight loss, worry,
decreased energy, gastrointestinal disturbance and feelings
of sadness and loss.”
Id.
Dr. Ober’s letter stated that
“[t]hese effects are coincidental with beginning the program
at [ACPHS],” that medications had not been effective, and
that he therefore supported Gabriel’s request for a medical
leave.
Id.
Gabriel explains that his withdrawal from ACPHS was
precipitated by his “discriminatory treatment and the
prejudice the plaintiff was subjected to by [ACPHS] in
general and from Dr. Pumo in particular . . . .”
Gabriel
further claims that the situation was “aggravat[ed]” by his
7
treatment by Dean DeBellis, who allegedly “yell[ed] and
scream[ed]” at Gabriel during meetings regarding the
plagiarism accusation.
The Amended Complaint reports that Gabriel was
ultimately informed by ACPHS officials – specifically, Dean
DeBellis and Director of Counseling Services Dr. Peter
Cornish – that the allegation of plagiarism was being
withdrawn and that, as a result, there would be “nothing in
[Gabriel’s] file.”
(Doc. 3 at 22.)
When Gabriel requested
a letter of confirmation, Dean DeBellis allegedly declined,
explaining that “nothing took place, nothing happened, there
is nothing to be in writing . . . .
bed[,] it is over . . . .”
We need to put this to
Id.
Because of his experience at the Vermont campus,
Gabriel asked to be transferred to the Albany campus.
At
first, he did not receive any response from either Dean
DeBellis or Dr. Cornish about his request.
He later called
Dean DeBellis, who allegedly denied the request without
explanation.
A second request was denied by Dean DeBellis
by letter, again without explanation.
(Doc. 1-26 at 2.)
Gabriel reports that he has since “decided not to go to
Vermont again and plaintiff has enrolled in a different
8
school to complete my pharmacy studies which has cost me
time and money.”
(Doc. 3 at 25.)
On August 20, 2010, Gabriel complained to ACPE and
ACPHS officials about how he had been treated.
The ACPE
response, authored by Defendant Lindsay Antikainen, informed
Gabriel that “[a]fter our review of your complaint along
with the information provided to us by the Dean of the
College of Pharmacy, it was determined that no accreditation
standards have been violated in this instance.”
at 2.)
(Doc. 1-33
Gabriel contends that several accreditation
standards were, in fact, violated.
He also alleges that
ACPE accredited the Vermont campus prematurely, a result of
which was the lack of certain technological resources and a
campus writing center.
Gabriel claims that if a writing
center had been available, his writing assignment could have
been reviewed prior to its submission to Professor Pumo.
Gabriel is seeking damages in the amount of $1,135,330.
Of this amount, the majority is to compensate for alleged
psychological harm.
Other claimed damages include the
tuition paid to ACPHS, ACPHS fees, living expenses, and
$100,000 in lost wages.
Aside from the amounts sought for
psychological harm and lost wages, Gabriel’s total claimed
9
damages amount to approximately $35,000.
Gabriel brings his claims under “Title VII of the Civil
Rights Act of 1964, as amended, and the applicable laws of
the State of Vermont.”
(Doc. 3 at 36.)
Gabriel previously
filed a similar lawsuit in the United District Court for the
District of Massachusetts.
improper venue.
That Complaint was dismissed for
(Doc. 33-7.)
In its order of dismissal,
the court also concluded that Gabriel’s Title VII claim was
“not viable as a matter of law” because he did not claim to
be an employee of the College.
Id. at 2 n.3.
Discussion
I.
ACPHS Defendants’ Motion to Dismiss
A.
Legal Standards
The ACPHS Defendants have moved to dismiss Gabriel’s
claims pursuant to Fed. R. Civ. P. 12(b)(6) for failure to
state a claim, and Fed. R. Civ. P. 12(b)(1) for lack of
subject matter jurisdiction.
They also argue that Gabriel
has failed to comply with the pleading requirements of Fed.
R. Civ. P. 8.
On a motion to dismiss pursuant to Rule 12(b)(6),
district courts are required to accept as true all factual
allegations in the complaint and to draw all reasonable
10
inferences in the plaintiff’s favor.
Famous Horse Inc. v.
5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010).
However, this requirement does not apply to legal
conclusions, bare assertions or conclusory allegations.
Ashcroft v. Iqbal, 556 U.S. 662, 678, 681 (2009) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
In order to satisfy the pleading standard set forth in
Rule 8 of the Federal Rules of Civil Procedure, a complaint
must contain sufficient factual matter to state a claim to
relief that is plausible on its face.
678 (citing Twombly, 550 U.S. at 570).
Iqbal, 556 U.S. at
“Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”
Id.
Accordingly, a
plaintiff is required to support his claims with sufficient
factual allegations to show “more than a sheer possibility
that a defendant has acted unlawfully.”
Id.
“Where a
complaint pleads facts that are merely consistent with a
defendant’s liability, it stops short of the line between
possibility and plausibility of entitlement to relief.”
Id.
(quoting Twombly, 550 U.S. at 557) (internal quotation marks
omitted).
Rule 12(b)(1) provides for dismissal of a complaint due
11
to a lack of subject matter jurisdiction.
Generally, a
claim may be properly dismissed for lack of subject-matter
jurisdiction where a district court lacks constitutional or
statutory power to adjudicate it.
Makarova v. United
States, 201 F.3d 110, 113 (2d Cir. 2000).
The plaintiff
bears the burden of proving subject matter jurisdiction by a
preponderance of the evidence.
Id. (citing Malik v.
Meissner, 82 F.3d 560, 562 (2d Cir. 1996)).
B.
Discrimination Claim
The Amended Complaint alleges that the ACPHS Defendants
are liable for “discriminating against [Gabriel] because
[his] national origin of being a Coptic Christian from
Egypt, in violation of Title VII of the Civil Rights Act of
1964, as amended . . . .”
(Doc. 3 at 35-36.)
To the extent
Gabriel is bringing his Title VII claim against the
individual defendants, his claim is misplaced, as the Second
Circuit has held that Title VII does not apply to
individuals.
See Tomka v. Seiler Corp., 66 F.3d 1295, 1314-
15 (2d Cir. 1995).
In addition, Title VII makes it unlawful for employers
to discriminate against employees.
See Gulino v. New York
State Educ. Dep’t, 460 F.3d 361, 382 (2d Cir. 2006); 42
12
U.S.C. § 2000e-2(a)(2).
It does not apply to a student’s
claim that he was discriminated against by either his
college or a non-employer third party.
See Bucklen v.
Rensselaer Polytechnic Inst., 166 F. Supp. 2d 721, 726
(N.D.N.Y. 2001)(dismissing Title VII claim where plaintiff
claimed discrimination against him in his role as a
student); Pell v. Trustees of Columbia Univ., 1998 WL 19989,
at *9 (S.D.N.Y. Jan. 21, 1998) (dismissing Title VII claim
because “plaintiff was a student at Columbia University, not
an employee”); Stilley v. Univ. of Pittsburgh, 968 F. Supp.
252, 261 (W.D. Pa. 1996).
Because the ACPHS Defendants in
this case were not Gabriel’s employers, his Title VII claim
cannot stand.
The Court acknowledges, however, that it must read
Gabriel’s pro se pleadings with “special solicitude” and
interpret his claims as raising “the strongest arguments
that they suggest.”
Triestman v. Fed. Bureau of Prisons,
470 F.3d 471, 474-75 (2d Cir. 2006).
Gabriel claims that he
was the victim of discrimination on the basis of his
religion and the fact that he is Egyptian-American.
Accordingly, he may be trying to raise civil rights claims
under federal statutes other than Title VII, such as Title
13
VI of the Civil Rights Act of 1964, or 42 U.S.C. § 1981.
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.
Section 1981 provides, inter alia, that,
“[a]ll persons within the jurisdiction of the United States
shall have the same right in every State and Territory to .
. . the full and equal benefit of all laws and proceedings
for the security of persons and property as is enjoyed by
white citizens.”
42 U.S.C. § 1981(a).2
In order to
establish a claim based on either statute, Gabriel must show
that a defendant (1) discriminated against him on the basis
of race, (2) that the discrimination was intentional, and
(3) that the discrimination was a substantial or motivating
factor for the defendant’s actions.
See Tolbert v. Queens
College, 242 F.3d 58, 69 (2d Cir. 2001) (citations and
internal quotation marks omitted).
2
Section 1981 “applies to private as well as state actors,
including independent academic institutions.” Yusuf v. Vassar
College, 35 F.3d 709, 714 (2d Cir. 1994). Title VI applies to private
suits against private recipients of federal funds. Cannon v. Univ. of
Chicago, 441 U.S. 677, 711 n.48 (1979). The Court will assume for
present purposes that ACPHS is the recipient of federal funds.
14
Gabriel claims that he was punished for plagiarism
while others in Professor Pumo’s class were not.
He also
contends that, unlike others, he was denied access to the
bathroom during an exam, and that Professor Pumo resisted
rescheduling an exam that conflicted with his citizenship
ceremony.
His discrimination claims against the remaining
Defendants are less specific, although he does allege that
his request for a transfer to the ACPHS Albany Campus was
denied without explanation because “Plaintiff is Egyptian
American and has no value to them . . . .”
(Doc. 3 at 29
n.9)
Pursuant to the legal standards set forth above, the
Amended Complaint must allow the Court to reasonably infer
that Gabriel was treated differently from others due to
unlawful and intentional discrimination.
U.S. at 678.
See Iqbal, 556
In a civil rights action, that inference must
be supported by allegations of specific facts indicating a
deprivation of rights.
Fonte v. Board of Managers of
Continental Towers Condominium, 848 F.2d 24, 25 (2d Cir.
1988); Martin v. New York State Dep’t of Mental Hygiene, 588
F.2d 371, 372 (2d Cir. 1978) (“It is well settled in this
Circuit that a complaint consisting of nothing more than
15
naked assertions, and setting forth no facts upon which a
court could find a violation of the Civil Rights Acts, fails
to state a claim under Rule 12(b)(6).”).
Moreover, in
assessing the plausibility of Gabriel’s claims, the Court is
mindful that it may consider whether more likely or
alternative explanations for the alleged conduct exist.
Iqbal, 556 U.S. at 681.
In this case, an obvious alternative explanation for
the ACPHS Defendants’ alleged conduct is that Gabriel made
significant use of un-cited materials in violation of the
college’s Honor Code.3
Gabriel does not specifically
3
Defendants have submitted the Turnitin report for the Court’s
consideration. The report allegedly shows that a substantial portion
of Gabriel’s assignment was copied from other sources. Although the
Turnitin report was not submitted with either the Complaint or the
Amended Complaint, Defendants ask the Court to consider it as integral
to Gabriel’s pleadings. (Doc. 33 at 4 n.5.)
When considering a Rule 12(b)(6) motion, a district court’s
review of the factual record is generally limited to the facts and
allegations that are contained in the complaint and to any documents
that are either incorporated into the complaint by reference or
attached to the complaint as exhibits. See Taylor v. Vt. Dep’t of
Educ., 313 F.3d 768, 776 (2d Cir. 2002); Chambers v. Time Warner,
Inc., 282 F.3d 147, 152-54 (2d Cir. 2002); Hayden v. County of Nassau,
180 F.3d 42, 54 (2d Cir. 1999). The court may also review documents
that are not a part of the complaint, but are nonetheless “integral to
the complaint.” Cortec. Indus., Inc. v. Sum Holding L.P., 949 F.2d
42, 47 (2d Cir. 1991). A document is “integral to the complaint”
where “the complaint relies heavily upon its terms and effect.”
DiFolco v. MSNBC Cable LLC, 622 F.3d 104, 111 (2d Cir. 2010); see
also, e.g., Broder v. Cablevision Systems Corp., 418 F.3d 187, 196 (2d
Cir. 2005) (where a complaint relies on the terms of a contract, the
court may look to the agreement itself on a motion to dismiss).
In this instance, the Turnitin report is not so integral to
Gabriel’s claims that he felt the need to rely “heavily upon its terms
and effect” in drafting his Complaint. Id. Indeed, its primary
16
dispute using un-cited materials, although he notes that he
never admitted to plagiarism.
He also contends that he “did
the assignment to the best of his knowledge according to the
limited information provided by defendant Professor Pumo on
how to do the assignment.”
(Doc. 42 at 9.)
There is little in the Amended Complaint, beyond
Gabriel’s repeated references to his Egyptian heritage and
his choice of religion, to suggest intentional
discrimination.
While direct evidence of discrimination is
not required, a pleading must nonetheless allege
“circumstances giving rise to a plausible inference of
racially discriminatory intent.”
Yusuf, 35 F.3d at 713.
Beyond Gabriel’s repeated assertions that he was the victim
of discrimination, the pleadings in this case give no
support for such an inference.
What little circumstantial evidence Gabriel submits is
insufficient to set forth a plausible discrimination claim.
Denial of a bathroom break during an exam may have been
harsh, but it did not constitute actionable discrimination,
significance appears to be in support of the ACPHS Defendants’ claim
that Gabriel committed plagiarism. The Court therefore declines to
review or consider the specific contents of the Turnitin report at
this time.
17
and provides scant support for a broader claim.
See, e.g.,
Hamilton v. City College of City Univ. of New York, 173 F.
Supp. 2d 181, 185 (S.D.N.Y. 2001) (denial of calculator
during exam was insufficient to support claim that professor
had violated plaintiff’s Constitutional rights).
Similarly,
reluctance to re-schedule an exam, followed by the
professor’s agreement to assign a new date, does not create
an inference of intentional discrimination.
Finally,
punishment for alleged plagiarism when lesser violators
escaped sanction does not, without additional supporting
facts, suggest discriminatory intent.
In sum, the Amended Complaint and its many exhibits do
not support a plausible claim that Gabriel was mistreated
because of either his national origin or his religion.
The
ACPHS Defendants’ motion to dismiss Gabriel’s discrimination
claim is therefore GRANTED.
C.
Leave to Amend
In addition to the requirement that pro se pleadings be
liberally construed, the Second Circuit has held that
district courts should generally not dismiss a pro se
complaint without granting the plaintiff leave to amend.
See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
18
In
this case, Gabriel may be in possession of additional facts
that would give rise to a plausible claim of discrimination.
Iqbal, 556 U.S. at 678.
The Court will therefore allow him
thirty days in which to file a Second Amended Complaint in
which he must set forth both the legal and factual bases for
his discrimination claims against the ACPHS Defendants.
D.
Breach of Contract Claims
Gabriel also asserts two contract claims against the
ACPHS Defendants.4
He first contends that the syllabus for
his Immunology class was a contract.
More specifically, he
claims that the syllabus failed to reference a “free pass”
policy permitting limited plagiarism, and that by
implementing such a policy orally, Professor Pumo breached
her contract with the class.
The court finds no legal support for treating a course
syllabus as a contract.
The few courts that have considered
the issue have concluded that a syllabus does not constitute
a contract.
See, e.g., Yarcheski v. Univ. of Medicine and
4
Because the Court is granting Gabriel leave to amend his
discrimination claim, the Court retains supplemental jurisdiction over
the state law contract claims. See 28 U.S.C. § 1367(a). The Court
therefore declines to consider at this time whether Gabriel’s damages
claims show “a reasonable probability that the [damages] claim is in
excess of the statutory jurisdictional amount” for diversity
jurisdiction. Tongkook Am., Inc. v. Shipton Sportwear, Co., 14 F.3d
781, 784 (2d Cir. 1994) (citation and internal quotation omitted).
19
Dentistry of New Jersey, 2008 WL 5133687, *4 (N.J. Super.
Dec. 9, 2008) (affirming lower court’s ruling that course
syllabus did not constitute legally enforceable contract);
Collins v. Grier, 1983 WL 5148, at *2 (Ohio. App. July 27,
1983) (“there is no contract between a professor or
instructor and a student created by the syllabus or
university guidelines”).
Indeed, a valid contract requires
several elements, including mutual agreement and valuable
consideration.
See, e.g., Manley Bros. v. Bush, 169 A. 782,
783 (Vt. 1934).
A course syllabus – which commonly outlines
reading requirements, test dates and the like – does not
have any such attributes.
Gabriel’s breach of contract
claim based upon the course syllabus is therefore DISMISSED.
Gabriel’s second contract claim is that the College
failed to adhere to the terms of its Honor Code.
The ACPHS
Defendants first argue that such a contract would only be
between Gabriel and the College, and that the individual
ACPHS Defendants would have no liability.
(Doc. 33 at 16-17
n.15) (citing Guckenberger v. Boston Univ., 957 F. Supp.
306, 324 (D. Mass. 1997) (holding that chancellor and
president’s assistant could not be held liable for
university’s alleged breach of contract because, under state
20
law, officer is generally not liable for corporation’s
breach)).
The Court agrees, as Gabriel cannot show that the
Honor Code was a contract between himself and the individual
ACPHS Defendants.
See Coddington v. Adelphi Univ., 45 F.
Supp. 2d 211, 219 (E.D.N.Y. 1999) (holding that contract
existed between plaintiff and university on the basis of
“bulletins and other materials” but dismissing contract
claims against individual defendants); Bisong v. Univ. of
Houston, 2006 WL 2414410, at *3 (S.D. Tex. Aug. 18, 2006)
(dismissing individual defendants from breach of contract
claim based upon student handbook); see also Costa v.
Katsanos, 664 A.2d 251, 252 (Vt. 1995) (corporate officers
are not liable for corporation’s contract unless contract
specifies such liability).
With respect to the College, however, courts have
generally recognized a contractual relationship between a
school and its students.
Indeed, this Court has recognized
that “[t]he terms of the contract [between a school and its
students] are contained in the brochures, course offering
bulletins, and other official statements, policies and
publications of the institution.”
Merrow v. Goldberg, 672
F. Supp. 766, 774 (D. Vt. 1987); see also Mangla v. Brown
21
Univ., 135 F.3d 80, 83 (1st Cir. 1998); Fellheimer v.
Middlebury Coll., 869 F. Supp. 238, 242 (D. Vt. 1994).
In
Fellheimer, the Court specifically found that with respect
to disciplinary procedures set forth in a student handbook,
“the College has an obligation to conduct its hearings in a
manner consistent with the terms of the Handbook and that a
student has a cause of action if he or she can prove that
the College deviated from the established procedures.”
F. Supp. at 242.5
869
Fellheimer also allowed that a school
could “breach its obligation to students only by deviating
from its own procedures in such a way that the disciplinary
action at issue is fundamentally unfair, arbitrary or
capricious . . . . [T]he vast majority of College
disciplinary procedures will satisfy this standard, and it
is against this standard that [] the plaintiff’s claims of
breach of contract must be evaluated.”
5
869 F. Supp. at 244.
The ACPHS Honor Code was attached as an appendix to the Student
Handbook. The Court considers the Honor Code as integral to the
Amended Complaint, as its terms form the basis of Gabriel’s breach of
contract claim. Furthermore, it has been held that a student handbook
may be incorporated into a complaint, and that such incorporation does
not require conversion to a motion for summary judgment. Goodman v.
President and Trustees of Bowdoin College, 135 F. Supp. 2d 40, 47 (D.
Me. 2001).
22
Accepting Gabriel’s allegations as true, the College
did not adhere to several provisions within the Honor Code,
including the mediation and hearing requirements.
Gabriel
claims that if the College had followed the process required
under the Honor Code, he would not have been sanctioned with
a failing grade and, “more important, would not have
suffered the psychological and emotional distress and
physical illness, which plaintiff experienced thereafter.”
(Doc. 3 at 19.)
A fundamental flaw in Gabriel’s contract claim is that
the plagiarism charge was ultimately withdrawn, and Gabriel
was welcomed to return to school with a clean record.
According to the Amended Complaint, any record of the
plagiarism charge was expunged, and the College was willing
to accept Gabriel back as though “nothing happened.”
Consequently, any errors in the Committee’s procedure,
including the alleged failure to provide a hearing, were
harmless.
Furthermore, with respect to Gabriel’s claims of
compensable physical and emotional harm, Vermont law allows
only two types of damages for breach of contract: “direct
damages that naturally and usually flow from the breach
23
itself, and special or consequential damages, which must
pass the tests of causation, certainty and foreseeability.”
Smith v. Country Village Intern., Inc., 944 A.2d 240, 243-44
(Vt. 2007); see also A. Brown, Inc. v. Vt. Justin Corp., 531
A.2d 899, 901-02 (Vt. 1987) (direct damages from breach of
contract must naturally flow from breach itself,
consequential damages must have been within specific
contemplation of parties).
The Restatement (Second) of
Contracts further notes that contract damages are intended
to place the injured party in the same position as he “would
have been had the contract been performed,” Restatement
(Second) of Contracts § 347, comment (a) (1981), and that
“[d]amages for emotional disturbance are not ordinarily
allowed” aside from exceptional cases, such as where “the
disturbance accompanies a bodily injury,” or “serious
emotional disturbance was a particularly likely result.”
Id. § 353, comment (a); see also McGee Constr. Co v. Neshobe
Development, Inc., 594 A.2d 415, 419 (1991)(citing
Restatement (Second) of Contracts § 347)).
Here, Gabriel claims that if he had been provided a
hearing, he could have explained his situation and avoided a
sanction.
By rescinding the sanction, the College placed
24
Gabriel in the same position as he arguably have would been
“had the contract been performed.”
Id. § 347, comment (a).
Moreover, the damages sought by Gabriel as a result of the
Committee’s initially minor, and ultimately non-existent,
sanction could not have been foreseeable.
Nor would they
have been within the contemplation of the contracting
parties.
The Court also acknowledges the Honor Code’s
“Deviation” provision, which states that “[d]eviation from
the above procedures will not invalidate a decision or
proceeding unless it causes significant prejudice to the
accused student, which the student must bring to the
attention of the applicable panel, committee or board member
upon belief that such prejudice occurred.”
8.)
(Doc. 33-3 at
Here, Gabriel cannot argue that he suffered significant
prejudice, either from the Committee’s decision to issue a
failing grade on an assignment or, more significantly, from
a sanction that was ultimately withdrawn.
Nor is there any
indication in the record that Gabriel notified the panel of
his belief that prejudice had occurred.
The breach of
contract claim against the ACPHS Defendants is therefore
DISMISSED.
25
II. ACPE Defendants’ Motion to Dismiss
The ACPE Defendants have also moved to dismiss under
Rule 12(b)(6).
The claims against the ACPE Defendants are:
(1) that ACPE accredited the Vermont Campus prematurely,
such that “the Vermont Campus technological facilities and
writing lab were nonexistent” and students “were left
without valuable information and guidance”; and (2) that
ACPE’s conclusion that “no accreditation standards have been
violated” was “unfavorable and unjust[ly] discriminatory.”
(Doc. 3 at 31-32.)
As with the ACPHS Defendants, the claims
being brought against the ACPE Defendants consist of a
discrimination claim under Title VII, and a state law claim
of breach of contract.
A.
Discrimination Claim
For reasons set forth above, Gabriel’s Title VII claim
is misplaced, as there is no allegation that he was ever an
ACPE employee.
See, e.g., Gulino, 460 F.3d at 382; Bucklen,
166 F. Supp. at 726.
Although the Court will again construe
the Amended Complaint liberally and consider other legal
bases for a discrimination claim, Gabriel’s claims of
discrimination by ACPE and its employees are entirely
conclusory.
26
Specifically, the Amended Complaint offers no factual
support for Gabriel’s claim that the response from ACPE
Accreditation Facilitator Lindsay Antikainen was “unjust[ly]
disriminatory.”
(Doc. 3 at 32.)
In his opposition
memorandum, Gabriel explains that he is accusing the ACPE
Defendants of racial discrimination because they failed to
investigate the allegedly discriminatory conduct at ACPHS.
(Doc. 43 at 10.)
In essence, he claims that by failing to
investigate his discrimination claim, ACPE itself acted in a
discriminatory manner.
Because Gabriel fails to support his
charge of derivative discrimination with any facts that
would indicate a plausible claim, the ACPE Defendants’
motion to dismiss that claim is GRANTED.
B.
Leave to Amend
As it did with the College, the Court next considers
whether it must grant leave to amend.
The Second Circuit
has “repeatedly cautioned against sua sponte dismissal
[without leave to amend] of pro se civil rights complaints
prior to requiring the defendants to answer.”
Cuomo, 861 F.2d 40, 42 (2d Cir. 1988).
Salahuddin v.
Leave may be denied
where, for example, the problem with a claim “is substantive
. . . better pleading will not cure it,” and “[r]epleading
27
would thus be futile.”
Cuoco, 222 F.3d at 112.
In this case, the flaws in Gabriel’s pleadings are due
to a lack of adequate factual support.
Keeping in mind that
leave to amend should be granted where there is “any
indication that a valid claim might be stated,” the Court
cannot conclude with certainty that even with additional
facts, Gabriel will be unable to assert a plausible
discrimination claim against the ACPE Defendants.
amend that claim is therefore GRANTED.
Leave to
Gomez v. USAA Fed.
Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999); see also
Mian
v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085,
1087 (2d Cir. 1993) (remanding to give pro se plaintiff
opportunity to amend complaint which “fails to offer more
than conclusory allegations that he was discriminated
against because of his race”) (internal citation omitted);
Mathon v. Marine Midland Bank, N.A., 875 F. Supp. 986, 1003
(E.D.N.Y. 1995) (leave to replead granted where court could
not say that under no circumstances would proposed claims
provide a basis for relief).
C.
Breach of Contract Claim
The breach of contract claim, however, is plainly
meritless.
Briefly stated, there is no basis for asserting
28
a contractual relationship between Gabriel and the ACPE
Defendants.
In response to the ACPE Defendants’ motion to
dismiss the contract claim, Gabriel asserts that ACPE has “a
national and public responsibilit[y] . . . towards the
health care system in the United States of America, or in
[]other words ACPE in general has [] an agreement or
contract with the American people and the American society
in general” to ensure that “pharmacy colleges and programs”
comply with ACPE standards.
(Doc. 43 at 5.)
There is no legal support for the proposition that ACPE
has a general contract with the American people.
Correspondingly, if ACPE fails to properly enforce its own
accreditation standards, its conduct does not give rise to a
breach of contract claim by members of the general public.
Nor does ACPE’s conduct create claims for breach of contract
brought by students at accredited institutions.
See
generally Cruz Berrios v. Accreditation Council for Graduate
Medical Educ., 218 F. Supp 2d 140, 143 (D.P.R. 2002)
(finding no contract or quasi-contract between student and
accreditation organization).
Gabriel’s breach of contract
claim against the ACPE Defendants is therefore DISMISSED
with prejudice, and without leave to amend.
29
D.
Request for Disciplinary Action
Gabriel’s opposition memorandum asks the Court to take
action against the ACPE Defendants and ACPE attorney Michael
Montgomery as a result of an alleged telephone conservation
between Gabriel and Montgomery.
Accepting Gabriel’s
depiction of the conversation as true, Montgomery asked
Gabriel to voluntarily dismiss his claims, and informed
Gabriel that ACPE would likely move the Court for costs if
successful.
Gabriel characterizes Montgomery’s statements
as intimidating, and asks the Court to take disciplinary
action.
The Court sees no basis for taking such action, and
to the extent that Gabriel’s request constitutes a motion,
the motion is DENIED.
Conclusion
For the reasons set forth above, Defendants’ motions to
dismiss (Docs. 30 and 34) are GRANTED.
Gabriel’s motion for
leave to file a sur-reply (Doc. 47) is also GRANTED.
Gabriel’s breach of contract claims against Defendants
are DISMISSED.
Gabriel may file a Second Amended Complaint
within 30 days of this Opinion and Order amending his claims
of discrimination.
Failure to file a Second Amended
Complaint within 30 days will likely result in the dismissal
30
of this case with prejudice.
Dated at Burlington, in the District of Vermont, this
3rd day of October, 2012.
/s/ William K. Sessions III
William K. Sessions III
Judge, United States District Court
31
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