DiPerna v. Chi. Sch. of Prof'l Psychology
| Decision Date | 26 June 2018 |
| Docket Number | No. 17-3351,17-3351 |
| Citation | 893 F.3d 1001 |
| Parties | Jennifer DIPERNA, Plaintiff-Appellant, v. The CHICAGO SCHOOL OF PROFESSIONAL PSYCHOLOGY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Jason J. Bach, Attorney, BACH LAW FIRM, LLC, Las Vegas, NV, Stephanie Denzel, Attorney, Lakeland, TN, for Plaintiff-Appellant.
Alisa B. Arnoff, Attorney, SCALAMBRINO & ARNOFF, Chicago, IL, for Defendant-Appellee.
Before Ripple, Manion, and Kanne, Circuit Judges.
Jennifer DiPerna was a student pursuing a master's degree in clinical psychology at The Chicago School of Professional Psychology (TCSPP), a private, non-profit institution. After TCSPP disciplined DiPerna for posting an image to her personal Instagram account that TCSPP considered offensive, DiPerna filed this lawsuit alleging breach of contract and negligence.
The year after DiPerna filed her complaint, one of her professors accused her of plagiarism. A hearing was held before a school committee, and DiPerna was dismissed. She amended her complaint to include claims related to her dismissal.
In the proceedings below, DiPerna voluntarily withdrew some of her claims, and the district court granted summary judgment to TCSPP on all the others. DiPerna now challenges the district court's conclusions. We affirm.
DiPerna's issues with TCSPP began in the spring of 2013. That semester, DiPerna enrolled in a course titled "Diversity in Clinical Practice." One of the assignments in that course was a group project. DiPerna, a white woman, was in a group with a student named Shakira,1 a black woman. While they were together, DiPerna and Shakira got into a discussion about "privilege." This discussion prompted Shakira to email their instructor, Dr. Patricia Perez, with "concerns about [DiPerna's] ability to work with clients of a diverse background."2 When DiPerna's group met with Dr. Perez, DiPerna again got into a discussion about privilege, this time with a different student.
After these incidents, DiPerna complained to various TCSPP officials that she was the subject of harassment and bullying. She claimed people were calling her "color blind," making comments, and pointing at her. Despite her complaints, TCSPP took no action. DiPerna tried to withdraw from the class, but was told she could not as it was too far into the semester.
That summer, DiPerna posted an image with a racial slur on her personal Instagram account. Two black students at TCSPP complained to a professor. On August 1, 2013, DiPerna met with Dr. Virginia Quinonez, Department Chair, and Dr. Luke Mudd, Associate Department Chair. DiPerna defended herself on the grounds that the posting was supposed to be humorous. She also objected to being punished when Shakira, whose posts contained similar language, was not.
Drs. Quinonez and Mudd referred DiPerna to the Student Affairs Committee (SAC). After a hearing, the SAC ordered DiPerna to complete an Academic Development Plan (ADP)3 and delayed her entry into an internship program. Though TCSPP allowed for an internal appeal of that decision, DiPerna did not pursue one. On January 3, 2014, DiPerna filed the instant lawsuit, citing the federal diversity jurisdiction statute and alleging claims for breach of contract and negligence.
DiPerna continued in school while the lawsuit was pending. In 2015, she took a required seminar course taught by Dr. Kristin Davisson. As part of that course, DiPerna completed a "Clinical Competency Examination" (CCE), which required her to set out a specific psychological theory and discuss how she applied it to her clinical experiences with a patient.
The portion of the CCE in which she discusses the theory she applied was called the "Conceptualization" or "Case Formulation" section. When Dr. Davisson was reviewing DiPerna's CCE, she began to suspect DiPerna had plagiarized that section. Dr. Davisson noticed the writing style in that section was different from other sections of the paper and from DiPerna's previous work. Dr. Davisson particularly noted it was more sophisticated in word choice and frequency of sources.
Dr. Davisson's suspicions caused her to input some sentences from the paper as the terms in a Google search. After that search revealed a match, Dr. Davisson decided to run the paper through turnitin.com (Turnitin), a web-based program that compares submitted writings against a database of potential sources. This was the first time Dr. Davisson had used Turnitin in some time.
Dr. Davisson only had a hard copy of DiPerna's paper, so she personally typed DiPerna's conceptualization section (about two pages of text) into Turnitin. Turnitin returned a 92% similarity score, meaning it concluded 92% of the conceptualization section was similar to material found in other sources. Turnitin provided a list of sources that included psychology publications, a website, and other student papers.
Dr. Davisson reported these results to then Interim Department Chair Dr. Mudd. Dr. Mudd told Dr. Davisson to request an electronic copy of the paper from DiPerna so that she could run the entire paper through Turnitin, rather than just the one section. Dr. Davisson did so, and that reduced the similarity score to 10%. Nevertheless, the conceptualization section was still extensively flagged. Dr. Mudd performed some independent verification of Turnitin's results and referred DiPerna to the SAC.
Prior to her hearing before the SAC, DiPerna received notice that nine people would make up the committee. When she showed up for her hearing on May 12, 2015, the committee did not have nine members. Nevertheless, the hearing proceeded. DiPerna argued she was being retaliated against for her lawsuit and that her 10% similarity score was insufficient to have justified a referral. The day after the hearing, DiPerna was informed she had been dismissed.
Ten days after learning of the SAC's conclusion, DiPerna sent an email to Dr. Azara Santiago-Rivera, the Dean of Academic Affairs. DiPerna characterized her email as an appeal of the SAC's decision and argued Dr. Davisson had improperly singled her out for scrutiny, the SAC had not been properly composed, and she was being targeted because of her lawsuit against the school. Neither Dr. Santiago-Rivera nor anyone else at TCSPP ever responded to DiPerna's email.
On June 1, 2015, DiPerna amended her complaint in this lawsuit to include claims relating to her dismissal. As amended, DiPerna's complaint made claims for breach of contract and negligence arising from six events: (1) TCSPP's failure to respond to bullying and harassment; (2) TCSPP's decision to discipline DiPerna for her Instagram post; (3) the SAC's development of DiPerna's ADP; (4) the SAC's decision to delay DiPerna's entry into an internship program; (5) the reporting of DiPerna for plagiarism; and (6) DiPerna's dismissal.
TCSPP moved for summary judgment. In response to the motion, DiPerna conceded she was barred from pursuing her claims based on the development of her ADP and the decision to delay her entry into an internship program because she had failed to internally appeal those decisions. She also conceded her claim for negligence.
On November 28, 2016, the district court denied TCSPP's motion in part and granted it in part. The district court determined there were genuine issues of material fact concerning DiPerna's claims relating to the harassment and her punishment for the Instagram post. However, the district court granted summary judgment to TCSPP on DiPerna's claims relating to her dismissal, concluding there was no evidence the SAC decided to dismiss DiPerna without a rational basis. The district court also granted summary judgment to TCSPP on DiPerna's claims for tuition and living expenses as damages. The district court reasoned that any extra tuition DiPerna had paid was the result of her ADP and her delayed internship. She had conceded her claims relating to those punishments, so she could not recover for her extra tuition. As for the living expenses, DiPerna had submitted a contract between DiPerna and her mother requiring DiPerna to repay those expenses incurred "as a result of [DiPerna's] expulsion."4 Because the court had already concluded DiPerna's expulsion was not improper, it determined DiPerna could not recover expenses arising from it.
After this order, the case continued toward trial on the harassment and Instagram claims. In August 2017, TCSPP filed a number of motions in limine, three of which are pertinent here. In those three motions, TCSPP sought to prevent DiPerna from presenting: (1) evidence relating to damages resulting from her dismissal; (2) evidence relating to damages for tuition, living expenses, emotional distress, and attorney's fees; and (3) the testimony of her expert witness, Dr. Stan V. Smith. The district court granted all three motions.
The district court granted the motion on evidence related to DiPerna's dismissal by simply referring to its earlier conclusion that the dismissal was lawful. DiPerna attempted to argue that her dismissal was at least partly based on her Instagram post, but the district court found no evidence of that and reasoned that, even if it were true, the plagiarism was a sufficient cause for her dismissal.
Concerning the tuition and living expenses, the district court again referred to its conclusions in its prior order. The court also barred DiPerna from presenting evidence of emotional damages because Illinois does not allow them in contract actions absent special circumstances. Nor would the court allow DiPerna to present evidence relating to attorney's fees, because DiPerna had shown no entitlement in law or contract to such fees.
Finally, the court determined Dr. Smith's testimony would not be helpful to the jury. Dr. Smith, a forensic economist, intended to testify to DiPerna's lost earnings and hedonic damages.5 On lost earnings, the court again relied on its decision that DiPerna's dismissal...
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