Vanderbilt Student's Lawsuit Over Suspension for Alleged False Accusations Can Go Forward
· Reason
From a long opinion today by Judge Waverly Crenshaw (M.D. Tenn.) in Poe v. Lowe:
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Poe, a male Vanderbilt student, made social media posts about another male Vanderbilt student, Roe, and his sexual behaviors with females. [Citing court filing] showing posts by Poe's Yik Yak account, including stating that "[Roe] is a rapist" and "[Roe] slipped me a roofie this fall, but I just wasn't able to definitively proove [sic] it. When I brought it up to some of the [] brothers [from Roe's fraternity] they tried to gaslight me about it" ….
Poe was not alone—a number of posts were made about Roe by other people, including other Vanderbilt students. [Citing court filing] containing Yik Yak posts by a female Vanderbilt student, L.N., including stating that she had "personal experience" with Roe and "he is a RAPIST, that is the truth and if you don't believe it after so many girls have said it, there is nothing I can do to convince you" …. Once this came to Vanderbilt's attention, Bourgoin, Vanderbilt's Director of Student Accountability, Community Standards, and Academic Integrity, opened a disciplinary case against Poe, charging him with three violations of the Student Handbook …: disorderly conduct, harassment, and impersonating a University official or any other person….
Poe's appeal was denied by Vanderbilt's Chair of the Appellate Review Board (Lowe), and Poe was suspended for a year. Poe, who had attempted suicide after hearing of his punishment, sued Vanderbilt on various theories.
The court allowed Poe's negligence claim to go forward based on how the disciplinary outcome was reported to him:
There is no dispute that Defendants were on notice of Poe's serious mental health issues. [Citing record document] (Poe's mother emailing Bourgoin and Clapper {[Vanderbilt's] Director of Student Care Network and Student Care Coordination} that Poe "is now talking suicide We are absolutely convinced an adverse decision now will take his life"). Jamerson even testified that he had assessed Poe's suicide risk at "moderate-to-elevated." Defendants did not accommodate Poe's mother's request to move the outcome call one week. Yet, they still chose to engage in care planning with her to mitigate the risk of harm to Poe. [Citing record document] (Jamerson testifying that he "felt it was safe to move forward with adding additional precautions like having [Clapper] available to be on the [outcome] cal1, who is a licensed clinical social worker, also notifying the mom of when the date would be so that the mom was aware of when it was coming out.").
Apparently, Defendants wanted Poe to have his mother with him during the outcome call, as evidenced by the email to his mother with the target date for the meeting. Clapper also testified that when she and Bourgoin began the outcome call with Poe, she asked Poe if his mother was there. Despite Poe telling them he lied to his mother {about the scheduling of the outcome call and [told] her that it was the following day}, Bourgoin and Clapper proceeded with the outcome call.
This is evidence from which a jury could conclude that the risk that Poe would commit suicide was sufficiently foreseeable to give rise to a duty of care. Moreover, having already decided to involve Poe's mother, a jury could find that Defendants failed to exercise reasonable care by proceeding with the outcome call after learning that she was not there to support him.
The same analysis applies to the element of proximate causation. Defendants argue that Poe cannot establish causation, reasoning that his suicide attempt was not reasonably foreseeable in light of the precautionary steps they took to protect him. Critically, he "thwart[e]d one of the main aspects of their reasonable care plan" by lying to his mother about the date for the outcome call. But, again, Poe made Defendants aware at the outset of the outcome call that his mom was not with him. They proceeded anyway. There is a genuine issue of material fact regarding whether his suicide attempt was reasonably foreseeable, and summary judgment will be denied on the negligence claim….
The court also allowed Poe's Title IX selective enforcement claim to go forward:
"In a selective enforcement claim, a plaintiff essentially asserts that even if he or she did violate a university policy, the decision to initiate disciplinary proceedings or the severity of the penalty imposed was motivated by gender bias." "To prevail on his selective enforcement claim, [a plaintiff] must show that a similarly-situated member of the opposite sex was treated more favorably than the plaintiff due to his or her gender."
The comparator in this case is a female student named L.N. Defendants argue that Poe and L.N. were not similarly situated because of the differences in timing, volume, and subject matter of their posts. Poe has come forward with sufficient admissible evidence for a reasonable jury to conclude that he and L.N. were similarly situated. It is undisputed that L.N. made at least twelve posts about Roe. Her posts about Roe were very similar to Poe's—they accuse Roe of sexual misconduct. Therefore, there is a genuine dispute of material fact regarding whether Poe and L.N. were similarly situated.
The remaining elements of a selective enforcement claim are whether Poe was treated less favorably than L.N. due to gender. It is undisputed that Bourgoin knew that Poe was male and L.N. was female. There is evidence that upon learning of L.N.'s identity, including her gender, Bourgoin apparently believed the accusation that Roe raped L.N., because he wanted to report the rape to Vanderbilt's Title IX Director …. It is also undisputed that even after learning L.N.'s posts were knowingly false, she only received probation, whereas Poe was suspended for a year. Therefore, there is evidence from which a reasonable jury could conclude that gender affected Vanderbilt's decision to selectively enforce a disciplinary process against Poe….
And the court allowed much of Poe's breach of contract claim to go forward, based on alleged violations of disciplinary process rules:
The Handbook … provides that students subject to disciplinary action may "examine all information that may form the basis for corrective action." … Poe has come forward with admissible evidence that he did not have the opportunity to examine all information supporting the charges. For example, he testified that the charge sheet alleged he posted on "a single social media site." It is undisputed, however, that Vanderbilt investigated him for posting on more than "a single social media site," which was relied upon to discipline him. Likewise, Poe states that Vanderbilt never showed him the post in which he allegedly impersonated a Belmont University student….
The Handbook states that students in accountability proceedings have the opportunity "to call witnesses." … Poe has presented admissible evidence to the contrary … [that] he was unable to call as witnesses other persons who made posts about Roe. For example, his attorneys tried to gather information from Greek Rank and Yik Yak. His attorneys advised Bourgoin that they were ultimately unable to subpoena information about other posts. There is evidence that Vanderbilt, on the other hand, knew the names of those other posters and, at a minimum, this would have been information relied upon by Vanderbilt that Poe would have been entitled to receive…. There is a genuine dispute of material fact regarding whether Bourgoin denied Poe the opportunity to call witnesses by withholding witnesses' identities from Poe….
The Handbook affords students the right to an unbiased appeal if a student is found to have engaged in misconduct. In conducting the appeal, the Chair of the Appellate Review Board (Lowe) should be provided with and review "the entire record of the case," the student's appeal petition, and "all supporting information provided by the [student] petitioner … in the light most favorable to the petitioner." …
First, [Poe] argues that Lowe did not review all of the materials available to her and instead merely rubber stamped Bourgoin's decision. Poe relies on Lowe's testimony that her appellate review was limited to a "Box file" from a digital sharing platform. She could not confirm under oath that she did in fact review everything in the Box file.
Second, Poe argues that the appeal documents omitted information reflecting Bourgoin's bias against him, and this "sanitized file … infected Lowe's review." Lowe agrees that omission of information about Bourgoin's negative personal views of Poe would be problematic. Poe also relies on a text message from Bourgoin to Jamerson stating, in part, "FYI to offline context. We've had countless interactions with [Poe] from accountability, honor, and multiple title ix things He is very unwell and not stable in my untrained assessment…." This text was "offline," meaning it was not included in Poe's disciplinary file.
Third, Poe argues that Bourgoin improperly shifted the burden of proof to Poe to prove his innocence. Lowe agreed that would be problematic. Bourgoin admits that he held Poe's inability to present evidence of other posts about Roe against Poe.
Fourth, Poe claims that Lowe erroneously found that his sanction was comparable with similarly situated students. Yet, Poe points to evidence that casts doubt on that conclusion. This includes a list of other Vanderbilt students who had similar charges and lacked disciplinary history, like Poe, but were not suspended….
In sum, each of the above create disputes of material fact [for a jury to resolve]….
But the court rejected plaintiff's defamation claim, because plaintiff didn't introduce enough evidence of damages (required for defamation under Tennessee law):
Poe's defamation claim is based on the statement in Bourgoin's March 9, 2023 letter to Roe that Poe "instigated" the harassing posts, which he argues is false because other posts about Roe preceded his. Poe claims that he was damaged by the statement because he was approached at his internship about his academic sanction, thereby suffering reputational harm. Poe also testified that the contents of Bourgoin's letter were shared with other students, making him "embarrassed to … talk to other people at Vanderbilt."
Based on the record, the Court can conclude that at least six people knew about Bourgoin's letter to Roe: Bourgoin, Roe, Roe's father, Roe's mother, Poe, and Poe's mother. Poe has not offered evidence that any of those people shared the letter with his internship employer or other students….
The court also rejected plaintiff's intentional infliction of emotional distress claim (which, like the negligence claim, was based on how the suspension decision was conveyed to him):
Defendants argue that Poe cannot claim IIED based on an email Clapper sent to Bourgoin the night before the outcome call where she stated, inter alia, "His parents better have flown there. lol safe travels!" Clapper testified that the "lol" comment was in reference to the fact that "we [Clapper and Bourgoin] were working on a Sunday trying to still coordinate details[,] … [Bourgoin] [] had to travel[,] [n]either of us had [electric] power. There was a lot that could go wrong in this situation." Defendants also point out that Poe did not see the email "until nearly a year later." Defendants argue that this email, compared to how they otherwise responded to Poe's mental health issues, does not amount to outrageous conduct.
Poe clarifies that he is not contending that Clapper's email caused him "direct distress," but rather it is "evidence of the mindset with which [Defendants] approached the delivery of a suspension to a student who they knew was suicidal and thus particularly susceptible to emotional distress." Moreover, Poe points to other record evidence of Defendants' antipathy toward him with respect to the delivery of the outcome. For example, Poe cites Jamerson's comment that he was "not overly concerned" about Poe's suicide risk after the outcome, when Clapper and Bourgoin were concerned that Poe would kill himself.
Even if Defendants' conduct is offensive, Poe has not met his high burden of coming forward with admissible evidence that it was "atrocious and utterly intolerable in a civilized community." …
And the court also threw out Poe's claim of tortious interference with business relations, and violations of the Rehabilitation Act of 1973 (a disability accommodation statute).
The District Court had earlier held that Poe may not proceed under a pseudonym, but that ruling is currently on appeal.
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