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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

PRIANKA BOSE, )
)
Plaintiff, )
)
v. ) No. 2:16-cv-02308-JTF-tmp
)
RHODES COLLEGE, )
)
Defendant. )

DEFENDANT RHODES COLLEGE’S TRIAL MEMORANDUM

Defendant Rhodes College (“Rhodes” or “Rhodes College”), pursuant to Local Rule

16.4, 1 respectfully submits the following Trial Memorandum in advance of the August 27, 2018

trial date in this matter.

INTRODUCTION

The only remaining claim in this case is extremely narrow. That claim is limited to

whether Rhodes breached a contract (namely, the Title IX policy in effect during the relevant

time period, attached as Exhibit A) with Plaintiff Prianka Bose (“Plaintiff” or “Ms. Bose”) by

failing to investigate her claims of retaliation under Title IX, instead focusing only on her claims

of sexual harassment under Title IX.

Two undisputed points are worth emphasizing at the outset of this Trial Memorandum:

(1) Plaintiff complained about retaliation by Dr. Roberto de la Salud Bea in her online Title IX

report and in her extensive interview with Whitney Harmon, the outside attorney retained by

1
Local Rule 16.4 provides in pertinent part that “[p]arties in civil cases may file with the Clerk a
trial memorandum of facts and law not less than 14 days before the case is set for trial.” Id.
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Rhodes College to conduct the Title IX investigation following Ms. Bose’s online report; and (2)

Rhodes investigated and considered the allegations of retaliation that were actually raised by

Plaintiff in her report and in her interview with Ms. Harmon. The fact that the outcome of the

investigation did not suit Ms. Bose is completely irrelevant and in any event cannot constitute a

breach of contract. Rhodes accordingly believes that there is no genuine dispute as to any

material issue of fact or law for the trier of fact on Plaintiff’s sole remaining claim, and that the

claim should be dismissed.

FACTUAL BACKGROUND AND RELEVANT PROCEDURAL HISTORY

A. Overview of the Lawsuit

The crux of Ms. Bose’s lawsuit is that Dr. Bea retaliated against her by falsely accusing

her of cheating in Organic Chemistry II after she objected to his alleged romantic advances

toward her. (See ECF No. 1 at PageID 2-7). Plaintiff originally asserted nine claims against

Rhodes College and Dr. Bea, to wit: (1) sexual harassment and retaliatory expulsion under Title

IX (against Rhodes); (2) retaliatory discharge under Title VII (against Rhodes); (3) breach of

contract (against Rhodes); (4) tortious interference with business relations (against Rhodes); (5)

negligent failure to train or supervise (against Rhodes); (6) violations of the Tennessee

Consumer Protection Act (“TCPA”) (against Rhodes); (7) defamation (against Dr. Bea); (8)

intentional infliction of emotional distress (“IIED”) (against Dr. Bea); and (9) tortious

interference with business relations (against Dr. Bea). (See generally id. at PageID 7-18).

Every claim except for one—the breach of contract claim—has been dismissed by the

Court. (See ECF No. 52) (dismissing the Title VII claim and the defamation claim); (ECF No.

102) (dismissing the IIED claim); (ECF No. 149) (dismissing the Title IX claim, the negligent

failure to train or supervise claim, the TCPA claim, and the tortious interference with business

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relations claim against Dr. Bea); (ECF No. 152) (dismissing the tortious interference with

business relations claim against Rhodes).

Although the bulk of Plaintiff’s contract claim was originally founded upon alleged

infirmities in the December 2015 Honor Council proceedings involving Ms. Bose (see, e.g., ECF

No. 1 at PageID 9) (“IV. Count 3: Breach of Contract as to the Honor Council Hearing

Procedures”), the claim is now founded solely upon the following allegation: “Defendant

Rhodes failed to investigate [Plaintiff’s] claim of retaliation.” (ECF No. 149 at PageID 1828)

(describing Plaintiff’s only remaining claim). As explained in this Trial Memorandum, there is

simply no record support for this allegation or, more broadly, for Plaintiff’s only remaining

contract claim, and the claim should be dismissed.

B. Distinctions Between the Rhodes Honor System and the Title IX Process

An understanding of the distinctions between Rhodes’s Honor System and Rhodes’s Title

IX policy is necessary before delving into the relevant details of this case. Rhodes’s Honor

System and the Honor Code have existed for over 100 years. The Honor System is a

foundational component of the Rhodes community. As explained in the Honor Council

constitution (attached as Exhibit B, also available at https://handbook.rhodes.edu/honor-council-

constitution), the Honor System is intended to foster a spirit of honor among the students at

Rhodes College:

The objective of the Honor System is the spiritual, moral, and

intellectual development of the individual student, which is
promoted and encouraged by the freedom and responsibility the
student gains by virtue of living within the Honor System.
Students are personally responsible for their work, their actions,
and their word. Because these actions take place in a larger
community, students have a responsibility to that community.
Students must protect their freedom by encouraging adherence to
the Honor Code and by reporting any violations of which they are
aware. In order to preserve an atmosphere of honor and trust at

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Rhodes, it is necessary for the Honor Council to act upon any cases
of dishonesty in connection with academic or campus life. All
members of the Rhodes community must fulfill their
responsibilities to the Honor System. This process of cooperation
is vital to the spiritual, moral, and intellectual development of
Rhodes College.

(Exhibit B at p. 1, The Honor System).

The express purpose of the Honor Council—as provided in the Honor Council

constitution—is to “act upon cases of cheating, stealing, or lying in official matters, or the failure

on the part of students to report such violations in connection with academic work or campus

life.” (Id. at p. 1, Article I, Section 1, Purpose). And the Honor Council’s subject-matter

jurisdiction is limited by the Honor Council constitution to “implement[ing] and interpret[ing]

the Honor Code, including, without limitation, determining whether or not a student has violated

the Honor Code.” (Id. at p. 2, Article I, Section 2, Definitions). Because of the narrow nature of

its charge, the Honor Council is limited to adjudicating (1) claims of academic misconduct (2)

that are alleged solely against students. The Honor Council does not, by its very nature, have

any jurisdiction to adjudicate claims of sexual harassment or retaliation against a faculty

member.

The Faculty Appeals Committee (the Honor Council’s reviewing body) has similarly

limited subject-matter jurisdiction under the Honor Council constitution. It is defined by the

Honor Council constitution as the “group of faculty members authorized by Rhodes College to

consider an appeal of the Honor Council’s decision that a student has violated the Honor Code or

an appeal of the sanction imposed on a student by the Honor Council.” (Id. at p. 2, Article I,

Section 2, Definitions). In sum, neither the Honor Council nor the Faculty Appeals Committee is

authorized to decide any matter that relates to anything other than one or more alleged violations

of the Honor Code by one or more Rhodes students.

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Allegations of sexual misconduct—whether those allegations involve sexual harassment

or retaliation for complaints about sexual harassment—are completely outside the purview of the

Honor System. Rhodes, like all colleges and universities that receive federal funding, has a Title

IX policy and Title IX-related procedures in place to investigate and resolve claims of sexual

harassment or claims of retaliation for objecting to sexual harassment, whether those claims are

made against faculty, staff, or a fellow student. 2 (See Exhibit A at p. 2, Section II(A), Scope).

The Title IX policy is “intended to protect and guide individuals who have been affected

by sex/gender discrimination and sexual misconduct . . . whether as a Claimant, a Respondent, or

as a witness, and to provide fair and equitable procedures for investigation and resolution of

reports and Claims.” (Id.) Individuals may submit online reports of alleged harassment,

discrimination, or retaliation pursuant to Rhodes’s Title IX policy, and Plaintiff did so on

February 11, 2016. Plaintiff’s online Title IX report (attached as Exhibit C) and Rhodes’s

investigation of her allegations in that report are discussed in detail later in this Trial

Memorandum.

C. The Honor Council Process in This Case

Here, the Honor Council process was initiated by Dr. Bea on December 2, 2015 at 11:03

a.m. when he sent an email (attached as Exhibit D, also available at ECF No. 116-4 at PageID

1246) to Kathleen Laakso, an Associate Dean of Students at Rhodes, regarding the fact that Ms.

Bose’s answers to Quiz 5 (which she had completed that morning) largely matched those

contained in a fake answer key that Dr. Bea had created to test his suspicions that Plaintiff had

been cheating in Organic Chemistry II. Because it turned out that Ms. Laakso was out of the

2
Title IX, however, “does not give victims a right to make particular remedial demands” nor
does it require a college to “engage in particular disciplinary action” to avoid liability under Title
IX. See Chambers v. Tenn. Bd. of Regents, 2017 WL 3218075, at *5 (W.D. Tenn. July 28, 2017)
(internal quotation marks omitted).

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office that day, Dr. Bea sent a second email (attached as Exhibit E, also available at ECF No.

116-4 at PageID 1248) to John Blaisdell (also an Associate Dean of Students) at 4:22 p.m.

containing the same information as the 11:03 a.m. email to Ms. Laakso. Mr. Blaisdell in turn

notified the Honor Council.

The December 17, 2015 Honor Council hearing was a marathon affair. It began at 7:00

p.m. and lasted nearly five hours, which is an unusually long time. Ms. Bose offered five

witnesses at the hearing (in addition to her own testimony): (1) Chelsea Dezfuli, Plaintiff’s best

friend who was also enrolled in Dr. Bea’s Organic Chemistry II lecture; (2) Matthew Chapman,

Plaintiff’s boyfriend, whom she introduced as her chemistry tutor; (3) Vinay Bose, Plaintiff’s

father; (4) Dr. Joel Shimkus, one of the organic chemistry PhDs hired by Mr. Bose to testify on

his daughter’s behalf; and (5) Dr. Brian Lawrence, another organic chemistry PhD hired by Mr.

Bose. An additional two organic chemistry PhDs hired by Mr. Bose did not answer the phone

when they were called by the Honor Council.

During the Honor Council hearing, Ms. Bose’s witnesses limited their testimony to how

she might have arrived at her answers without cheating. Unfortunately for Ms. Bose, both of her

expert witnesses were troubled when they learned during the Honor Council hearing that Ms.

Bose’s answers largely matched those contained in the fake answer key, the existence of which

they were not aware of until the hearing. It was not until her closing argument that Plaintiff

suggested (obliquely) that Dr. Bea might harbor some retaliatory motive to accuse her of

cheating:

I have a witness for a specific incident in the Rat where Dr. Bea
came up to me and looked at my phone, which is a very personal
item, and says, oh, is that your boyfriend, and proceeded to ask me
a question about my boyfriend and then he just walked away . . .
Right after this incident happened, I walked up to Dr. Bea and I
told him, I feel uncomfortable with you asking questions about my

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boyfriend. Please, let’s not talk about any personal stuff anymore.
And then he got angry and walked away . . . This is not the first
time that an ego-hurt professor would harm a student.

At the close of the hearing, the Honor Council retired to deliberate and later that night

concluded that Plaintiff was “In Violation” of the Honor Code. The recommended penalty was

expulsion.

In January 2016, Ms. Bose (through her lawyers, Brice Timmons and Sheerin Mehdian)

appealed the Honor Council’s decision to the Faculty Appeals Committee in a lengthy, lawyer-

written submission discussing in detail all of the ways in which Dr. Bea had allegedly sexually

harassed her and stating, without elaboration, that Plaintiff’s alleged objection to that conduct

motivated Dr. Bea to falsely accuse her of cheating in his class. (See ECF No. 116-3 at PageID

1180-1200). At the Faculty Appeals Committee hearing on January 28, 2016, which was

transcribed by a court reporter, Ms. Bose limited her argument concerning retaliation to the

following:

Moving on to the second point about the bias of the proceedings,

many of the questions that were asked to me during the
proceedings by both Dr. Bea and the Honor Council were with the
intent that I had stolen his entry key and that I had indeed cheated
on the quiz. There were no questions to me about specifically how
it could’ve been the opposite way or there were no questions
directed to Dr. Bea on how in – how his fake answer key could’ve
matched my quiz. The only proof that Dr. Bea has regarding his
fake answer key is, in fact, his testimony that he did create the fake
answer key before I took the quiz on December 2nd. There is no
proof that he supplied demonstrating that he created the fake
answer key after the fact that I took – after the date that I took the
quiz, nor is there proof that anybody else could’ve made any
changes to my quiz, because my quiz was in his custody the entire
time.

(ECF No. 116-4 at PageID 1259).

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After the hearing, the Faculty Appeals Committee upheld the Honor Council’s finding of

“In Violation.” As Dr. Marcus Pohlmann, Chair of the Faculty Appeals Committee, testified at

the June 7, 2016 preliminary injunction hearing in this matter, the Faculty Appeals Committee

gave full consideration to Plaintiff’s allegations of sexual harassment and retaliation, but only as

they were relevant to the allegations of cheating:

Q: And so is it correct that you really chose to avoid the issue

of whether this expulsion was tied, in any respect, to a retaliatory
motive?

A: No, we did not choose to avoid that. We chose not to

attempt to determine whether the allegation was accurate and
whether that allegation would rise to the level of sexual harassment
because we didn’t feel like it was our grounds to do so. But in
light of the allegation, we still found sufficient grounds to – to
reach the conclusion the Honor Council reached.

Q: If you found that there was a significant connection

between a student’s expulsion and a retaliatory motive by a
professor, would it be your job to look into that?

A: Sure. If the evidence -- if the evidence presented was clear

and convincing to that extent, yes, of course.

Q: But for reasons that you have explained to some degree, in

this case even though this student, Ms. Bose, brought up the
subject of there being a retaliatory connection, you chose to ignore
it and – and not really pursue that, correct?

A: Oh, we pursued it. We -- I mean, we -- we considered the

evidence presented and -- and determined that there was
sufficient evidence of cheating regardless of that allegation.

(ECF No. 40 at PageID 395) (emphasis added).

D. Plaintiff’s Online Report and Rhodes College’s Title IX Investigation

Under Rhodes’s Title IX policy, a member of the Rhodes community can make a Title IX

report in any number of ways, including, in the case of students, to a faculty member or directly

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to the Title IX Coordinator or Deputy Coordinator. (See Exhibit A at p. 6, Section VIII).

Students can also make an online report. (See id. at p. 9, Section X).

In this case, Ms. Bose first made a report to Dr. Kimberly Brien, her Organic Chemistry

II laboratory professor, on January 12, 2016, who in turn used the online form to make a report

on Plaintiff’s behalf. 3 Ms. Bose and her parents also met with Claire Shapiro, the Title IX

Coordinator, in January 2016. (Dep. of Prianka Bose (“Bose Dep.”) at p. 134, lines 1-12). Ms.

Shapiro asked Plaintiff to use the online form to provide details regarding her complaint. (Id. at

p. 137, lines 10-20).

Ms. Bose, who continued to be represented by Mr. Timmons and Ms. Mehdian, made her

Title IX report (see Exhibit C) using the Rhodes online form on February 11, 2016. In that

submission, Ms. Bose alleged (among other things) that Dr. Bea had retaliated against her.

Below are Ms. Bose’s allegations describing the purported retaliation by Dr. Bea:

November 23, 2015

After telling Dr. Bea that I was uncomfortable talking about my

boyfriend or anything personal with him, the classroom
environment became very tense. I felt uncomfortable talking to
Dr. Bea because he stopped responding to my questions and it was
affecting the course work. For example, on November 23, I went
before class as usual and waited for class to start. My friends and I
were talking about a practice problem that we had done earlier, so
when Dr. Bea walked into the room, I went to ask him a question
about the practice problem. When I asked Dr. Bea the question he
neither turned around nor answered my question, but rather, Dr.
Bea shrugged his shoulders with his back turned towards me and
his response which was really weird and I became even more
stressed to be in class with Dr. Bea. So after class, I decided to
speak to Dr. Bea again about his problem. I went to Dr. Bea’s
office after class, and when I walked in he saw me and
immediately started working on his computer, ignoring me. So I
sat down and said, “Dr. Bea, I feel like it’s been really weird

3
This report by Dr. Brien was later repudiated by Ms. Bose as inaccurate. (See Bose Dep. at p.
131, lines 4-16 and Exhibit 26).

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coming to class for the past few days since telling you that I was
uncomfortable with talking about personal matters with you.
Look, it’s not like I’m going to report you or anything, but I just
want to come to class and finish the semester.” He didn’t look up
from his computer nor say anything to me, so I left.

November 31, 2015

I had just come back to school after traveling over Thanksgiving

Break, and I decided to leave on Thursday for my sister’s Sweet 16
Birthday Party the first weekend of December. Because I was
leaving early, I decided to talk to all my teachers and move up all
my assignments so that I could get everything done on time.
Chemistry is my first period on Mondays so I decided to talk to Dr.
Bea in order to take my Quiz early and ask for extra practice
problems because I lost some of my tests and quizzes while
travelling [sic] for the thanksgiving break. When Dr. Bea came to
class, I told him that I had lost my binder with chemistry tests and
quizzes and asked if he had any extra problem sets for me to use to
study. He told me that if I gave him five minutes after class, that I
could come to his office and he would have something prepared
for me. So I waited a little bit after class and then went to his
office. When I entered his office, Dr. Bea asked me why I was
there so I told him again that I had lost my tests and quizzes over
thanksgiving break travel and was wondering if he had any extra
practice problems. He pointed to a stack of papers on his desk and
told me to look through it and take what I wanted. I went through
the stack and most of the papers were administrative stuff and I
went through it and just took a few sheets of practice problems.
Before I left, I asked Dr. Bea if it would be ok if I could take the
[sic] Quiz 5 on Wednesday and after looking at something on his
computer, he said that would work. Then I left.

These are the only allegations of retaliation by Dr. Bea contained in Ms. Bose’s Title IX report.

(See generally Exhibit C).

After receiving Plaintiff’s online submission, Ms. Shapiro sent the following email

(attached as Exhibit F, Exhibit 28 to Bose Dep.) to Ms. Bose on February 17, 2016:

Hi Prianka,

Thank you for sending in your information to me via the online

form last Thursday. Since that time, I have arranged with the
investigator [Ms. Harmon] to interview Dr. Bea and Dr. Brien. I

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would like to set a time for you to talk with the investigator in
person next week if you think you would be able to come to
Memphis. If that is a hardship, please let me know when you
would be available to speak by phone with Whitney Harmon
regarding the allegations against Dr. Bea. You mentioned the
faculty and staff SMART TEAM list you might want to access to
bring a support person. Let me know if you would still like to
have the list. We will meet in my conference room in HR where I
spoke with you and your parents in January. Please email me a
time that would work for you to talk in person next week and if
you will be bringing anyone to the interview. As the allegations
are against an employee of the college, we follow the employee
policy and procedures outlined in the College Handbook. They
are very similar to the Title IX process in place for students but do
not include a hearing, appeal etc. This is considered an internal
employment investigation where sexual harassment is taken very
seriously, in fact, it is prohibited for employees of the college.

I look forward to hearing from you soon to set the arrangements

for your interview.

(Id.) (emphasis added).

As Ms. Shapiro explained in her email, because Ms. Bose’s allegations implicated a

Rhodes faculty member (Dr. Bea), the Title IX procedures were governed in part by Rhodes

College’s Handbook (a separate document from the Title IX policy).

Below is the relevant section from the Title IX policy setting forth the same information

contained in Ms. Shapiro’s February 17, 2016 email to Plaintiff:

Section XIX. Sanctions-For Faculty and Staff

A. For Respondents Classified as Rhodes Faculty Employees:

The Respondent will be subject to the investigation authority of the
Title IX Coordinator and the Deputy Title IX Coordinator in
addition to the grievance and appeals procedures outlined in the
Rhodes College Handbook. Nothing in the Rhodes College
Handbook will prevent the Title IX Coordinator or Deputy Title IX
Coordinator from conducting or commissioning a prompt, fair and
thorough investigation into allegations against the Respondent of a
violation of this policy, including but not limited to Sex/Gender
Discrimination and Sexual Misconduct, or from taking interim
measures during the pendency of the investigation, sanctions and

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appeal process. In all cases involving a potential violation of this

policy, a preponderance of the evidence standard will be applied in
determining whether the Respondent is responsible for the alleged
violation.

(Exhibit A at p. 19, Section XIX, Sanctions-For Faculty and Staff) (emphasis in original).

Turning back to the relevant facts of this case, after Ms. Shapiro sent the February 17,

2016 email to Ms. Bose, one of Ms. Bose’s attorneys (Mr. Timmons) sent a letter (attached as

Exhibit G, RHODES02007-08) on February 23, 2016 to Ms. Harmon, the investigator retained

by Rhodes to investigate Ms. Bose’s Title IX report. In that letter, Mr. Timmons explained in

part as follows:

It is my understanding that you have been retained to provide a

neutral, objective assessment of whether any sexual harassment
took place. Having reviewed what my client submitted through the
school’s Title IX website [on February 11, 2016], I think it prudent
to inform you that subsequent to the conduct outlined in her
submission, Dr. Bea accused my client of cheating, resulting in her
expulsion from school. While you are at our office, I would like to
show you a transcript of the Honor Council proceeding[s] as well
as documents that directly impeach Dr. Bea’s allegations of
cheating against our client.

(Id.)

Nowhere in his letter to Ms. Harmon did Mr. Timmons explain why his client, who was

represented by counsel (i.e., Mr. Timmons and Ms. Mehdian) at the time that she submitted her

online Title IX report on February 11, 2016, failed to include the allegation that Dr. Bea had

retaliated against Ms. Bose for objecting to his so-called advances by falsely accusing her of

cheating.

Next, Ms. Bose and her counsel (Mr. Timmons and Ms. Mehdian) met with Ms. Harmon

at Mr. Timmons’s law offices on February 26, 2016. 4 The interview was transcribed by a court

4
Ms. Harmon interviewed Dr. Bea and Dr. Kimberly Brien on February 18, 2016.

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reporter. 5 Ms. Harmon began the interview by explaining that she “want[ed] to talk about the

specific allegations that [Ms. Bose] raised in [her] report, and just kind of walk [her] through

those.” (Exhibit H at p. 7, line 25 through p. 8, line 2).

Ms. Bose, after recounting Dr. Bea’s purportedly inappropriate behavior toward her,

described to Ms. Harmon how Dr. Bea had allegedly retaliated against her for allegedly objecting

to his behavior. (See id. at p. 32, line 1 through p. 33, line 25) (alleging that Dr. Bea ignored her

when she visited his office on November 23, 2015); (id. at p. 43, lines 1-25) (alleging that Dr.

Bea ignored her and pointed to a pile of papers on his desk when she asked him for practice

problems after Thanksgiving break); (id. at p. 45, lines 10-19) (alleging that Dr. Bea would not

answer her questions and would not even look at her on November 21, 2015 and December 2,

2015); (id. at p. 46, lines 18-22) (alleging that Dr. Bea was “very distant and cold” when Ms.

Bose went to his office to retrieve Quiz 5); (id. at p. 48, lines 5-9) (“I think that the pique [sic] of

his aggression occurred during the [Honor Council] hearing itself, which I didn’t put two and

two together that I was being accused of cheating because he was retaliating against me for

confronting him.”).

Ms. Harmon then asked Ms. Bose to “tell [Ms. Harmon] why you think that [Dr. Bea]

was retaliating against you, in what way. Explain that to me.” (Id. at p. 48, lines 10-12). In

response, Ms. Bose stated:

Q: Well, one, I never cheated, and his allegations were – it was

a lot. Most of what he accused me of doing is something that I
really didn’t have access to.

(See id. at p. 48, lines 13-16).

5
The transcript of Plaintiff’s February 26, 2016 interview is attached as Exhibit H.

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Ms. Harmon—in addition to interviewing Dr. Bea, Dr. Brien, and Ms. Bose—

interviewed three of Ms. Bose’s friends (Emma Barr, Chelsea Dezfuli, and Lauren Sylwester),

all of whom Plaintiff identified in her February 26, 2016 interview with Ms. Harmon as

possessing relevant information. Ms. Barr, Ms. Dezfuli, and Ms. Sylwester were each

interviewed by Ms. Harmon on March 16, 2016. All of the interviews were transcribed by a

court reporter. 6

None of the witnesses identified by Ms. Bose had anything to say about any alleged

retaliation by Dr. Bea, although they were given ample opportunity to do so. (See generally

Exhibit I, Exhibit J, and Exhibit K). Ms. Dezfuli went so far as to describe Dr. Bea as a

“cheerful and happy man” and “super nice.” (See Exhibit J at p. 10, lines 15-22).

Ms. Harmon produced a final investigation report on March 27, 2016 (attached as

Exhibit L, RHODES02056-70). The report contains a compilation of the information that Ms.

Harmon had received from the six persons whom she interviewed, to wit: Ms. Bose, Dr. Bea,

Dr. Brien, Ms. Dezfuli, Ms. Sylwester, and Ms. Barr. Pursuant to the terms of the Title IX

policy, the report did not contain any analysis or recommendations.

Ms. Shapiro, in her capacity as Rhodes’s Title IX Coordinator, reviewed the report and

concluded that Ms. Bose’s allegations that Dr. Bea had violated Title IX could not be sustained.

She sent a letter (attached as Exhibit M, also available at ECF No. 116-3 at PageID 1231) to Ms.

Bose on April 6, 2016 regarding the outcome of Rhodes’s Title IX investigation. That letter

explained in pertinent part as follows:

We have completed the investigation of the allegations of sexual

harassment and retaliation you made in January 2016. The College

6
The transcript from Ms. Barr’s interview is attached as Exhibit I; the transcript from Ms.
Dezfuli’s interview is attached as Exhibit J; and the transcript from Ms. Sylwester’s interview is
attached as Exhibit K.

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has taken your allegations very seriously and has reviewed the
information that you and others provided. After careful review of
the facts, the allegations of sexual harassment and retaliation in
violation of the College’s policy cannot be sustained.

You may contact me if you wish to discuss further; however, the

complaint file is being closed.

(Id.) Plaintiff did not pursue any further remedies under Rhodes College’s Title IX policy;

instead, she filed this lawsuit in May 2016. (See ECF No. 1).

LAW AND ARGUMENT

The only remaining claim in this case is a breach of contract claim. That claim involves

the narrow question of whether “Defendant Rhodes failed to investigate [Ms. Bose’s] claim of

retaliation.” (ECF No. 149 at PageID 1828) (outlining the claim). The contract is Rhodes’s Title

IX policy. Tennessee law governs the claim. (See id. at PageID 1822-23) (concluding that

Tennessee contract law applies). Under Tennessee law, a breach of contract claim requires

evidence of an enforceable contract, non-performance by a party amounting to a breach, and

damages as a proximate result of the breach. See Anderson v. Vanderbilt Univ., 2010 WL

2196599, at *11 (M.D. Tenn. May 27, 2010) (listing the elements), aff’d, 450 F. App’x 500 (6th

Cir. 2011) (per curiam).

Moreover, in construing a contract between a college and a student, the Sixth Circuit

applies a deferential standard of review. That standard—the “deferential standard of reasonable

expectation”—asks only “what meaning the party making the manifestation, the university,

should reasonably expect the other party to give it.” Anderson, 450 F. App’x at 502 (internal

quotation marks omitted); see also Anderson, 2010 WL 2196599, at *13 (the inquiry is whether

the college “substantially complied with its own rules”). A college may be held liable for breach

of contract in the educational context only if the college has somehow “abused its discretion—

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whether it acted unreasonably, arbitrarily, or unconscionably.” See Valente v. Univ. of Dayton,

438 F. App’x 381, 385 (6th Cir. 2011) (applying the abuse-of-discretion standard to a contract

claim against a law school and explaining that “[c]ontrary to Valente’s assertions, the issue is not

whether the Law School strictly adhered to each of the Honor Code’s procedural rules, or

whether it could have provided a better hearing”) (emphasis in original). Finally, Title IX itself

“does not give [alleged] victims a right to make particular remedial demands” nor does it require

an educational institution to “engage in particular disciplinary action” to avoid liability.

Chambers, 2017 WL 3218075, at *5.

A review of the Title IX policy and the narrow universe of pertinent background facts

(which cannot reasonably be disputed) shows that the contract claim presents no jury issue.

Although Plaintiff alleges that Rhodes violated the Title IX policy by failing to investigate her

allegations that Dr. Bea had retaliated against her, that contention is demonstrably false. The

Title IX policy provides that “Rhodes will investigate all reports it receives of sex/gender

discrimination and sexual misconduct.” (Exhibit A at p. 23, Section XX, Definitions); (see also

id. at p. 12, Section XIV, Procedures for Investigating Reports and Claims) (“Rhodes will

investigate all reports and Claims [sic] of Sex/Gender Discrimination and Sexual Misconduct.”).

Rhodes did exactly that. It retained Whitney Harmon, an outside attorney, to conduct a Title IX

investigation.

Moreover, Ms. Harmon’s investigation was consistent with the provisions contained in

the Title IX policy pertaining to investigations. As an investigator, Ms. Harmon’s role was to

objectively collect and examine the “facts and circumstances of potential violations . . . and

document[ ] them for review.” (Id. at p. 22). Ms. Harmon did so. She gathered evidence

(indeed, she interviewed six people, including Dr. Bea and Ms. Bose) and compiled an

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investigation report for Ms. Shapiro, Rhodes’s Title IX Coordinator. (See Exhibit L,

RHODES02056-70).

Rhodes in turn, consistent with its discretion under the Title IX policy, 7 concluded that

Plaintiff’s allegations could not be sustained and closed the matter. (See Exhibit M, also

available at ECF No. 116-3 at PageID 1231). Ms. Shapiro so advised Ms. Bose by letter on

April 6, 2016. (See id.) Nothing more was required of Rhodes under the Title IX policy. There

is accordingly no genuine dispute of fact that (1) Rhodes substantially complied with the relevant

terms of the Title IX policy in addressing Plaintiff’s retaliation claim, and (2) Plaintiff’s actual

report of alleged retaliation by Dr. Bea was in fact investigated.

Because Rhodes believes that it is entitled to judgment as a matter of law on the only

remaining claim, the issue of Plaintiff’s alleged contract-based damages is moot. Rhodes will

nevertheless address the issue briefly for the sake of completeness. As a preliminary matter,

under Tennessee law, Ms. Bose cannot recover any alleged emotional distress damages or

punitive damages on a contract claim. See Johnson v. Woman’s Hosp., 527 S.W.2d 133, 141

(Tenn. Ct. App. 1975) (“The general rule is that punitive damages are not recoverable in a

contract action and neither are damages for mental anguish, since it is not in tort and there is no

physical injury.”). Ms. Bose cannot recover her attorneys’ fees either because the Title IX policy

does not contain any provision relating to attorneys’ fees. See Cracker Barrel Old Country

Store, Inc. v. Epperson, 284 S.W.3d 303, 308 (Tenn. 2009) (explaining that Tennessee follows

the “American rule,” which provides that a party in a civil action may recover her attorneys’ fees

only if a contractual or statutory provision creates a right to the recovery of those fees).

7
(See Exhibit A at p. 14, Section XIV, Procedures for Investigating Reports and Claims) (“If
s/he [the Title IX Coordinator] determines the College’s Title IX obligations are not implicated,
s/he will be authorized to close the matter.”).

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The alleged injury forming the basis of the remaining contract claim is that Ms. Bose did

not receive all of the procedure (i.e., an investigation) to which she was purportedly entitled

under the Title IX policy. “In a breach of contract case we say that the parties are entitled to the

benefit of the bargain. … Stated differently, the plaintiff is entitled to be put in the same position

he would have been in had the contract been performed.” Winningham v. Brown, 1996 WL

325250, at *2 (Tenn. Ct. App. June 14, 1996) (citing Action Ads, Inc. v. William B. Tanner Co.,

592 S.W.2d 572 (Tenn. Ct. App. 1979)).

Here, the bargained-for item in the Title IX policy about which Plaintiff complains is

process; in particular, Ms. Bose contends that she did not receive the benefit of the investigation

for which she had bargained. The result is that, even if Plaintiff’s contract claim were not

deficient as a matter of law, she would be entitled only to more process (and not to money

damages). See Branham v. Thomas M. Cooley Law Sch., 689 F.3d 558, 565 (6th Cir. 2012)

(affirming the district court’s holding that the only remedy for a law school’s breach of the

procedures contained in an employment contract with one of its law professors “was an equitable

remedy” and explaining that “the [only] way to put Branham in the position she would have been

absent the breach was to provide [her] with the faculty conference process”); see also Birbiglia v.

St. Vincent Hosp., 1994 WL 878836, at *11 (Mass. Super. Ct. Dec. 29, 1994) (explaining that,

with respect to a physician’s breach of contract claim “that he did not receive the process due

under the Bylaws,” the “only relief available under this cause of action” was the process

mandated by those bylaws); cf. EEOC v. Bass Pro Outdoor World, LLC, 1 F. Supp. 3d 647, 671

(S.D. Tex. 2014) (observing that the “Supreme Court has made clear that, as a general rule, the

remedy for a deficiency in a process is more process”) (internal quotation marks omitted);

Hobson v. Rhode Island Bd. of Regents for Elementary & Secondary Educ., 1998 WL 726655, at

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*7 (R.I. Super. Ct. Sept. 29, 1998) (crediting the argument that the “appropriate remedy for a

violation of a procedural right is the institution of that proper procedure”).

Rhodes recognizes that the Court has observed in dicta that “[i]f Defendant Bea

retaliated against Plaintiff, that retaliation may include the fabrication of evidence tending to

show Plaintiff cheated, which would tend to negate the validity of the evidence used to find

Plaintiff guilty of cheating and stealing in violation of the Honor Code.” (ECF No. 149 at

PageID 1833). The Court continued: “Thus, if no ‘investigation’ occurred, then the validity of

Plaintiff’s Honor Code violation, and resulting expulsion, is questionable.” (Id.)

Rhodes College respectfully submits that the above-quoted dicta misapprehends the role

of the Honor Council and the Faculty Appeals Committee. Those bodies, as explained above,

are limited to determining whether Plaintiff cheated on Quiz 5 or otherwise violated the Honor

Code. The only evidence of retaliation that the Honor Council heard was Ms. Bose’s statement

in her closing argument about the “texting your boyfriend incident” and her claim that Dr. Bea

was an “ego-hurt professor” who “harmed” her, ostensibly by accusing her of cheating. As for

the Faculty Appeals Committee, it heard more detailed allegations of retaliation, and it expressly

took into account Ms. Bose’s allegation that Dr. Bea was motivated to accuse her of cheating

because she objected to his alleged sexual advances, but it found that, even presuming he was so

motivated, the evidence of actual cheating was so strong that it could reach no other conclusion

but “In Violation.” (ECF No. 40 at PageID 395).

And it is undisputed that Plaintiff’s actual allegations of retaliation were investigated

through the Title IX process. The fact that Rhodes ultimately concluded (pursuant to its

discretion under the Title IX policy) that the evidence did not support Ms. Bose’s allegations

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does not give rise to a breach of contract claim, because neither Title IX generally or the Title IX

policy specifically entitles Ms. Bose to a particular outcome.

Moreover, Ms. Bose’s purported money damages in this case (e.g., her alleged inability

to ever become a physician) 8 flow from the penalty (i.e., expulsion) that the Honor Council

imposed, and not from any alleged breach of the Title IX policy by Rhodes. The expulsion—as

opposed to any alleged defect in the Title IX investigation, which occurred after Ms. Bose had

been expelled—resulted in the severance of the student-school relationship between Ms. Bose

and Rhodes and rendered her ineligible for continued participation in the Rhodes College Early

Selection Program with George Washington University’s Medical School. Those purported

damages cannot be shoehorned into Plaintiff’s remaining contract claim because that claim is

limited to whether Rhodes failed to investigate her post-expulsion Title IX report of alleged

retaliation by Dr. Bea.

CONCLUSION

For the foregoing reasons, Rhodes respectfully submits that Plaintiff’s breach of contract

claim has no support based on the undisputed facts and law and that it should be dismissed.

Respectfully submitted,

_/s/ Lisa A. Krupicka_________________

Lisa A. Krupicka (BPR #12147)
Gary S. Peeples (BPR #32303)
BURCH, PORTER & JOHNSON, PLLC
130 North Court Avenue
Memphis, Tennessee 38103
Telephone: (901) 524-5000
Facsimile: (901) 524-5024
Email: lkrupicka@bpjlaw.com
gpeeples@bpjlaw.com

Counsel for Defendant Rhodes College

8
Rhodes vigorously disputes this.

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copies of the foregoing document
and all attachments thereto have been filed using the Court’s CM/ECF system on this the 20th
day of July, 2018, which will automatically send notice of the filing to all counsel of record in
this case.

_/s/ Lisa A. Krupicka__________________

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