Gabriel v. Albany College of Pharmacy and Health Sciences - Vermont Campus (ACPHS) et al

Filing 70

OPINION AND ORDER granting 59 Motion to Dismiss; granting in part and denying in part 60 Motion to Dismiss. Signed by Judge William K. Sessions III on 8/16/2013. (jam)

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,
Professor Stefan Balaz,
President Dr. James J.
Gozzo, Associate Dean John
Denio, Dr. Peter J.
Cornish, Professor Gail
Goodman Snitkoff, Gerald
Katzman, Accreditation
Council of Pharmacy
Education (ACPE), Peter
H. Vlasses, Lindsay M.
Antikainen,
Defendant.

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Case No. 2:12-CV-14

OPINION AND ORDER
(Docs. 59, 60)
Pro se plaintiff Matthew Gabriel brings this action
claiming that he was discriminated against while a student
at the Vermont campus of the Albany College of Pharmacy and
Health Sciences (“ACPHS” or “College”).

His claims center

on a plagiarism charge leveled against him by one of his

professors.

The charge was ultimately withdrawn, but

Gabriel contends that he suffered physical, psychological,
and monetary harm as a result of the incident.

In addition

to his discriminations claims, Gabriel alleges negligence
and breach of contract.
Defendants in the case include ACPHS, ACPHS
administrators, professors, students, and General Counsel
(collectively “ACPHS Defendants”), as well as the
Accreditation Council for Pharmacy Education (“ACPE”), its
Executive Director and Accreditation Facilitator (“ACPE
Defendants”).

Now before the Court are Defendants’ motions

to dismiss Gabriel’s Second Amended Complaint (“SAC”).

For

the reasons set forth below, the ACPHS Defendants’ motion to
dismiss is GRANTED in part and DENIED in part, and the ACPE
Defendants’ motion to dismiss is GRANTED.
Factual Background1
Gabriel was a full-time student at ACPHS from August
2009 through November 2009.

He attended classes at the

ACPHS Vermont campus, which is a satellite of the primary
ACPHS campus in Albany, New York.

1

On October 19, 2009,

For the limited purpose of ruling on the pending motions to
dismiss, the factual allegations set forth in the SAC will be accepted
as true.

2

ACPHS Professor Dorothy Pumo asked her students, including
Gabriel, to write a 450-word report on immunology 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.

Due to problems with

the video feed, the Vermont class missed the first fifteen
minutes of the lecture.
At the end of the class, one of Gabriel’s fellow
students asked “about using material from internet sources
and the correct citation required” for the writing
assignment.

(Doc. 58 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.2

Gabriel timely submitted his report by means of the
school website.

A few days later, Professor Pumo asked to

speak with him after class.

During the meeting, Professor

Pumo informed Gabriel that he had violated the school’s
Honor Code by committing plagiarism in his report.

Gabriel

disputed the accusation, explaining that he had not been
2

Gabriel also claims that Professor Pumo failed to provide an
Honor Code Statement with the assignment. The course syllabus stated
that students would be required “to honestly sign the honor code
statement on all graded work.” (Doc. 58-14 at 2.)

3

provided proper citation methods for internet sources, and
reminding Professor Pumo about her statement that references
were not required.

Nonetheless, Professor Pumo informed

Gabriel that she intended to file an Honor Code violation.
The two discussed the matter further, and Pumo agreed to
consider a re-written assignment.

At that point, Gabriel

was “under the impression we had resolved his ugly matter.”
Id. at 4.
Later that day, however, Gabriel checked his email and
found that Professor Pumo had contacted ACPHS Dean DeBellis
and filed a formal accusation of plagiarism.

Gabriel

alleges that Professor Pumo took this action with
discriminatory intent, as others in the class were also
accused of plagiarism, but he was the only one whom
Professor Pumo chose to report.

Gabriel contends that this

discrimination was based upon his national origin (Egyptian)
and religion (Coptic Christian).
When Gabriel questioned Professor Pumo about plagiarism
by others in the class, she conceded that there were “other
offenses” but that they were “of a lesser degree.”
14.

Id. at

With respect to the class as a whole, the assignment

had been reviewed for plagiarism by means of a program

4

called Turnitin.

After reviewing the Turnitin report,

Professor Pumo addressed the class as follows:
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.
Id. at 5 (emphases in original).3
Gabriel refers to Professor Pumo’s allowance of limited
plagiarism as the “‘free pass’ phenomenon,” and claims that
the practice was unlawful as it resulted in punishment
against only one person.

As he states in the SAC, “based on

the ‘free pass’ phenomenon the charges of plagiarism should
not have been filed against the plaintiff from the
beginning, because the entire class plagiarized
unintentionally.”

(Doc. 58 at 7.)

He further contends that

singling him out for punishment in a class of seventy-seven
students “represent[s] a strong discriminatory conduct,” and

3

According to Professor Pumo’s email to Dean DeBellis, Gabriel’s
Turnitin report showed 51% plagiarism from online sources. (Doc. 58-1
at 2.) In his SAC, Gabriel contends that he did not plagiarize, and
that he “did the assignment to the best of his knowledge according to
the limited information provided by defendant [P]rofessor Pumo on how
to do the assignment.” (Doc. 58 at 5.)

5

that the “‘free pass’ phenomenon was merely a ridiculous
reason from Professor Pumo to cover her obvious
discriminatory behavior.”

Id. at 7, 11.

Gabriel cites two other incidents involving Professor
Pumo that allegedly support his discrimination claim.

In

the first, which occurred prior to the plagiarism charge,
Professor Pumo “inhibited the Plaintiff from using the
bathroom during exam [sic] . . . and allowed everybody else
in the class to use it.” Id. at 7 (emphasis in original).
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.
When Gabriel complained to Dean DeBellis about this
treatment, he was allegedly told that he “needed to stop
complaining, and that if plaintiff kept challenging the
faculty they will do their best to flunk [him].”

Id. at 13.

He also alleges that Dean DeBellis pledged to discuss the
matter with Dean Hamilton “and get back to me,” but failed

6

to follow up with Gabriel “until now.”

Id.

The SAC

contends that like Professor Pumo, Dean DeBellis was
motivated by “prejudice and discrimination.”

Id.

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 in November 2009, 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.

He alleges that by so advising him,

both Long and Schwartz were suggesting that “the plaintiff
cannot defend himself which represent[s] a clear oppression
and discrimination . . . .”

Id. at 18, 19.

ACPHS officials ultimately informed Gabriel that
Professor Pumo had agreed to rescind her accusation, and
that the allegation of plagiarism was being withdrawn.

When

Gabriel requested a letter of confirmation, the request was
allegedly denied.

7

In November 2009, shortly after receiving the
Committee’s decision, 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. 58-3 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.

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 Dean DeBellis
about his request.

When he did reach Dean DeBellis by

8

telephone, the request was denied without explanation.

Dean

DeBellis denied a second request by letter, again without
explanation.

Gabriel reports that he has since “decided not

to go to Vermont again and plaintiff has enrolled in a
different school to complete my pharmacy studies which has
cost me time and money.”

(Doc. 58 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. 58-19

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 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.

The claims against the ACPE

Defendants are brought pursuant to 42 U.S.C. § 1981 and
common law negligence.

9

In addition to his discrimination claims, Gabriel is
alleging breach of the College’s Enrollment Confirmation
Form.

The Form states that the enrolling student agrees to

abide by the College’s Honor Code.

Gabriel contends that

the Form “works and functions both ways,” and embodies an
agreement by the College to abide by the Honor Code as well.
(Doc. 58 at 15.)

The alleged violations of the Enrollment

Form, and through it the Honor Code, included: failure to
provide Gabriel with written notice of the charge against
him; 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 26-28.

As a result

of the alleged breach of the Enrollment Confirmation Form,
Gabriel claims to have lost one academic year, resulting in
“the loss of [a] substantial amount of money between tuition
and a year of loss of wages,” as well as “physiological and
psychological damages.”

Id. at 15.

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 ACPHS

tuition, school fees, living expenses, and lost wages.

10

Procedural History
Gabriel originally brought 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.)

Prior to coming to this Court, he filed a similar lawsuit in
the United District Court for the District of Massachusetts.
That Complaint was dismissed for improper venue.
33-7.)

(Doc.

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.

Gabriel subsequently filed the instant case, again
bringing claims under Title VII, as well as a state law
breach of contract claim.

Defendants moved to dismiss, and

the Court granted the motions but allowed Gabriel leave to
amend.

Specifically, the Court dismissed the Title VII

claims, but giving Gabriel’s pro se Complaint the required
liberal reading, stated that Gabriel “may be trying to raise
civil rights claims under federal statutes other than Title
VII, such at Title VI of the Civil Rights Act of 1964, or 42
U.S.C. § 1981.”

(Doc. 51 at 14.)

The Court also found that

Gabriel’s pleadings did not allege a plausible claim of

11

discrimination, and that his breach of contract claim was
meritless.

Leave to amend was granted only with respect to

the discrimination claims.
Gabriel has now filed his SAC, asserting discrimination
claims under Title VI and 42 U.S.C. § 1981.

He also re-

asserts a breach of contract claim, as well as negligence
claims against the ACPE Defendants.

Defendants have again

moved to dismiss for failure to state a claim.
Discussion
I.

Legal Standard
Defendants have moved to dismiss Gabriel’s claims

pursuant to Fed. R. Civ. P. 12(b)(6).

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 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)).

Indeed, “[t]hreadbare

recitals of the elements of a cause of action, supported by

12

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).
II. ACPHS Defendants’ Motion to Dismiss
A.

Discrimination Claims

As noted above, Gabriel brings his discrimination
claims against the ACPHS Defendants pursuant to Title VI and
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 make and enforce contracts . . . and to the

13

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).4

In order to ultimately

prevail under either statute, Gabriel must demonstrate 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).
To survive a motion to dismiss on a claim of racial
animus, the Second Circuit has held that a plaintiff “need
not allege ‘specific facts establishing a prima facie case
of discrimination.’”

Boykin v KeyCorp, 521 F.3d 202, 212

(2d Cir. 2008) (quoting Swierkiewicz v. Sorema N.A., 534
U.S. 506, 508 (2002)).

In Swierkiewicz, the Supreme Court

held that a discrimination complaint “easily satisfie[d] the
requirements of Rule 8(a) because it [gave] respondent fair

4

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

notice of the basis for petitioner’s claims” by “alleg[ing]
that he had been terminated on account of his national
origin[,] . . . detail[ing] the events leading to his
termination, provid[ing] relevant dates, and includ[ing] the
ages and nationalities of at least some of the relevant
persons involved with his termination.”

Id. at 514.

For

Title VII cases, this remains the pleading threshold in the
Second Circuit.

See Boykin, 521 F.3d at 213.5

As Title VI

and Title VII cases employ the same analytical framework,
the same pleading standard applies here.

See J.E. ex rel.

Edwards v. Ctr. Moriches Union Free School Dist., 898
F. Supp. 2d 516, 557 (E.D.N.Y. 2012); see also Williams v.
N.Y. City Hous. Auth., 458 F.3d 67, 92 (2d Cir. 2006)
(noting that Swierkiewicz standard applies to all claims
that use “the McDonnell Douglass [burden-shifting]

5

But see Schwab v. Smalls, 435 F. App’x 37, 40 (2d Cir. July 27,
2011) (unpublished) (noting that “[q]uestions have been raised ... as
to Swierkiewicz’s continued viability in light of Twombly and
Iqbal.”). In its previous Opinion and Order, the Court relied in part
upon the pleading standards set forth in Yusuf. Whether those
standards remain valid after Swierkewicz is a matter of debate.
Indeed, Judge Murtha noted in 2009 that “some question arose after
Swierkiewicz as to whether” Yusuf remained good law, and that
“Swierkiewicz itself has a questionable status after Twombly . . . and
especially after Iqbal.” Brown v. Castleton State College, 663 F.
Supp. 2d 392, 403 (D. Vt. 2009). Given the factual similarities of
this case to the pleadings presented in Boykin, discussed below, the
Court will follow the Second Circuit’s reasoning, and standard, in
that case.

15

framework”).
The SAC in this case presents a close question at the
Rule 12 stage.

The Court previously concluded that

Gabriel’s allegations did not support an inference of
discriminatory animus.

His SAC emphasizes that certain

actions were taken against him because of his national
origin and religion, and that a totality of circumstances
strongly suggests discrimination.

He also now alleges

causes of action under Title VI and Section 1981 that,
unlike his previous Title VII claim, arguably apply in this
case.
As to the underlying facts, the Court notes that in a
racial animus case, intent may be difficult to establish as
“[t]here will seldom be ‘eyewitness’ testimony as to the
[defendants’] mental processes.”

U.S. Postal Serv. Bd. of

Governors v. Aikens, 460 U.S. 711, 716 (1983).

Moreover,

the Second Circuit has articulated a comparator test, which
allows a plaintiff to establish an inference of
discrimination by comparing his or her treatment to the
treatment of a person who is similarly situated to the
plaintiff in all material respects.

See Graham v. Long

Island R.R., 230 F.3d 34, 39 (2d Cir. 2000); see also

16

Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir.
2003) (holding that “a showing that the employer treated
plaintiff less favorably than a similarly situated employee
outside of his protected group . . . is a recognized method
for raising an inference of discrimination for purposes of
making out a prima facie case.”).

In this case, Gabriel

asserts repeatedly in his SAC that he was “singled out” for
special treatment, and that until Defendants show otherwise,
the Court may infer that similarly situated students were
treated more favorably.

The Court finds these allegations

of intentional “singling out” to be sufficient for an
inference of discrimination at the pleading stage.
Furthermore, Boykin demonstrates that a plaintiff in a
discrimination case need not provide factual evidence of
discrimination in his Complaint.

In Boykin, the district

court had concluded that “[i]t [was] not enough for
Plaintiff to simply state that she is a black woman who was
denied a loan.”
omitted).

521 F.3d at 214 (internal quotation

The Second Circuit disagreed, holding that

complaints of racial discrimination are “sufficiently
pleaded when the complaint state[s] simply that plaintiffs
‘are African–Americans, describes defendants’ actions in

17

detail, and alleges that defendants selected [plaintiffs]
for maltreatment ‘solely because of their color.’”

Boykin,

521 F.3d at 215 (quoting Phillip v. Univ. of Rochester, 316
F.3d 291, 298 (2d Cir. 2003)); see also DiPetto v. U.S.
Postal Serv., 383 F. App’x 102 (2d Cir. 2010); Morales v.
Long Island Rail Road Co., No. 09–CV–8714, 2010 WL 1948606,
at *3–4 (S.D.N.Y. May 14, 2010).
In this case, the SAC gives Defendants notice of the
claim and sets forth sufficiently detailed allegations to
describe the basis for a discrimination claim.

As the

Second Circuit concluded in Boykin:
In sum, Boykin’s allegations, taken as true,
indicate the possibility of discrimination and
thus present a plausible claim of disparate
treatment. The complaint gives [defendant] notice
of Boykin’s claim and the grounds upon it rests
that is sufficient to satisfy Rule 8(a). We
emphasize that we are expressing no opinion
regarding the merits of Boykin’s claim. And that
is precisely the point: even after Twombly,
dismissal of a pro se claim as insufficiently
pleaded is appropriate only in the most
unsustainable of cases. The merits of a claim
like Boykin’s, which on its face presents a
plausible allegation of disparate treatment,
should be tested on summary judgment.
Id. at 215-16.

The same conclusion may be reached with

respect to Gabriel’s discrimination claims.

Indeed,

Defendants are free to test the sufficiency of his claims at
18

summary judgment, and the Court is making no suggestion at
this time with regard to the merits of those claims.

At the

pleading stage, however, the Court finds that Gabriel’s
allegations are sufficient, and the ACPHS Defendants’ motion
to dismiss his discrimination claims is DENIED.
B.

Breach of Contract Claim

Gabriel also asserts a breach of contract claim,
alleging that the College’s Enrollment Confirmation Form
(“Form”) constituted a contract.

The Form, which is signed

by Gabriel, states in relevant part that he agreed “to abide
by the rules and regulations of [ACPHS] as presently
published in the Student Handbook and Catalog.”
at 2.)

(Doc. 58-13

Those “rules and regulations” included the College’s

Honor Code.

Gabriel claims that the Enrollment Confirmation

Form was a two-way contract, and that Honor Code violations
by Defendants were violations of that contract.
In its prior Opinion and Order, the Court dismissed
Gabriel’s breach of contract claim without leave to amend.
Specifically, the Court found that Gabriel’s allegations of
Honor Code violations were not viable under a breach of
contract theory.6

The SAC now reasserts the same

6

Gabriel previously asserted that the Honor Code itself was a
contract, and that Defendants’ failure to abide by the terms of the

19

allegations, using the Enrollment Confirmation Form as the
contract that allegedly binds the College to the terms of
the Honor Code.

Without reaching the question of whether

the Form constituted a two-way, enforceable contract, the
Court finds that the fundamental flaws in Gabriel’s contract
claim are unchanged.

The ACPHS Defendants’ motion to

dismiss the breach of contract claim is therefore GRANTED.
III.

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 they accredited the Vermont Campus prematurely, and
(2) that their response to Gabriel’s complaint was
discriminatory.

Gabriel further claims that the ACPE

Defendants’ actions constituted negligence.
A.

Discrimination Claim

Honor Code, specifically certain procedural aspects relating the Honor
Code Review Committee, constituted breach. The Court rejected the
claim, finding first that because the plagiarism charge was ultimately
withdrawn, “and Gabriel was welcomed to return to school with a clean
record . . . any errors in the Committee’s procedure . . . were
harmless.” (Doc. 51 at 23.) The Court also noted that Gabriel would
be unable to obtain damages under Vermont law since, even accepting
his allegations as true, “the damages sought by Gabriel as a result of
the Committee’s initially minor, and ultimately non-existent, sanction
could not have been foreseeable.” Id. at 25. Finally, the Court
noted the Honor Code’s deviation provision, which allowed invalidation
on the basis of procedural errors only in cases of “significant
prejudice,” and concluded that this case (where the penalty was
ultimately withdrawn) could not qualify. Id.

20

Gabriel claims that ACPE handled his complaint “in a
discriminatory fashion based on the plaintiff[’s] national
origin of being Coptic Egyptian Christian American in
violation to [sic] 42 U.S.C. § 1981(a).”

In moving for

dismissal, the ACPE Defendant contend that Gabriel has
failed to state a Section 1981 claim because he had no
contractual relationship with ACPE.
Section 1981 states, in relevant part, that “all
persons within the jurisdiction of the United States shall
have the same right . . . to make and enforce contracts . .
. as is enjoyed by white citizens . . . .”
1981(a).

42 U.S.C. §

The statute defines “mak[ing] and enforc[ing]

contracts” as “the making, performance, modification, and
termination of contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual
relationship.”

42 U.S.C. § 1981(b).

Consequently, any

claim brought under § 1981 for discrimination in the making
or enforcement of contracts “must initially identify an
impaired contractual relationship . . . under which the
plaintiff has rights.”

Domino’s Pizza, Inc. v. McDonald,

546 U.S. 470, 476 (2006).

“Absent the requirement that the

plaintiff himself must have rights under the contractual

21

relationship, § 1981 would become a strange remedial
provision designed to fight racial animus in all of its
noxious forms, but only if the animus and the hurt it
produced were somehow connected to somebody’s contract.
[The Supreme Court has] never read the statute in this
unbounded — or rather, peculiarly bounded — way.”

Id.

(emphases in original).
In his prior pleadings, Gabriel sought to bring a
breach of contract claim against ACPE, arguing 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.)

The Court

rejected this claim, finding that “[t]here 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.”

(Doc. 51 at 29.)

The Court

further concluded that ACPE’s activities do not “create

22

claims for breach of contract brought by students at
accredited institutions.”

Id. (citing 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)).
The SAC does not set forth any new basis for finding a
contractual relationship between Gabriel and the ACPE
Defendants.

In the absence of a contractual relationship

with ACPE, Gabriel cannot raise a Section 1981 claim of
discrimination.

The motion to dismiss Gabriel’s

discrimination claim against the ACPE Defendants is
therefore GRANTED.
B.

Negligence Claims

The SAC also claims that the ACPE Defendants are liable
for negligence with respect to the handling of his
complaint, and in their alleged failure to enforce ACPE
standards.

Under Vermont law, a negligence claims requires:

a legal duty; a breach of that duty; actual injury; and a
causal link between the breach and the injury.
v. Perry, 165 Vt. 298, 301 (1996).

See Zukatis

Accordingly, in order to

state a viable negligence claim, Gabriel must first assert

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an enforceable duty of care owed to him by the ACPE
Defendants.
The Ninth Circuit has declined to find that accrediting
agencies owe a tort law duty of care to students who attend
schools accredited by those agencies.

See Keams v. Tempe

Tech. Institute, Inc., 110 F.3d 44, 47 (9th Cir. 1997)
(noting that “appellants are unable to identify a single
decision wherein any court in the United States has held
that accrediting agencies . . . owe a tort law duty to
students”).

Similarly, the First Circuit has stated that

[w]e very much doubt the existence of a cause of
action for negligent accreditation on behalf of
third parties. . . . Our skepticism is heightened
by the strong policy arguments that militate
against endowing ill-served students of accredited
schools with a means to challenge the decisions of
accrediting agencies. These policy concerns
include the lack of a satisfactory standard of
care by which to evaluate educators’ professional
judgments and the patent undesirability of having
courts attempt to assess the efficacy of the
operations of academic institutions.
Ambrose v. New England Ass’n of Schools and Colleges, Inc.,
252 F.3d 488, 499 (1st Cir. 2010).

While there is no

Vermont case law directly on point, the Court agrees with
these Circuit courts on the duty of care question.
Accordingly, the Court finds that Gabriel has failed to
state a viable claim for relief against the ACPE Defendants
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on a theory of general negligence.
The ACPE Defendants also propose that Gabriel may be
bringing a claim of negligent infliction of emotional
distress, as the SAC alleges psychological harm as a result
of their alleges actions.

A claim of negligent infliction

of emotional distress, however, “is premised on a finding of
negligence,” including a duty of care.

Taylor v. Fletcher

Allen Health Care, 2012 VT 86, ¶ 9, __ Vt. __, 60 A.3d 646,
651-52.

As discussed previously, the Court finds that the

ACPE Defendants had no such duty in this case.

Their motion

to dismiss is therefore GRANTED in its entirety.
Conclusion
For the reasons set forth above, the motion to dismiss
filed by the ACPHS Defendants (Doc. 60) is GRANTED in part
and DENIED in part.

The motion to dismiss filed by the ACPE

Defendants (Doc. 59) is GRANTED.

All claims against

Defendants ACPE, Lindsay Antikainen and Peter Vlasses are
DISMISSED.
Dated at Burlington, in the District of Vermont, this
16th day of August, 2013.
/s/ William K. Sessions III
William K. Sessions III
Judge, United States District Court

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