Bose v. Salud Bea, 012820 FED6, 18-5936

Docket Nº:18-5936
Opinion Judge:LARSEN, CIRCUIT JUDGE.
Party Name:Prianka Bose, Plaintiff-Appellant, v. Roberto de la Salud Bea; Rhodes College, Defendants-Appellees.
Attorney:Adam W. Hansen, APOLLO LAW LLC, Minneapolis, Minnesota, for Appellant. Lisa A. Krupicka, BURCH, PORTER & JOHNSON, PLLC, Memphis, Tennessee, for Appellees. Adam W. Hansen, Eleanor E. Frisch, APOLLO LAW LLC, Minneapolis, Minnesota, Bryce Ashby, DONATI LAW, PLLC, Memphis, Tennessee, for Appellant. L...
Judge Panel:Before: SILER, LARSEN, and NALBANDIAN, Circuit Judges.
Case Date:January 28, 2020
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Prianka Bose, Plaintiff-Appellant,

v.

Roberto de la Salud Bea; Rhodes College, Defendants-Appellees.

No. 18-5936

United States Court of Appeals, Sixth Circuit

January 28, 2020

Argued: May 9, 2019

Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 2:16-cv-02308-John Thomas Fowlkes, Jr., District Judge.

ARGUED:

Adam W. Hansen, APOLLO LAW LLC, Minneapolis, Minnesota, for Appellant.

Lisa A. Krupicka, BURCH, PORTER & JOHNSON, PLLC, Memphis, Tennessee, for Appellees.

ON BRIEF:

Adam W. Hansen, Eleanor E. Frisch, APOLLO LAW LLC, Minneapolis, Minnesota, Bryce Ashby, DONATI LAW, PLLC, Memphis, Tennessee, for Appellant.

Lisa A. Krupicka, Gary S. Peeples, Sarah E. Smith, BURCH, PORTER & JOHNSON, PLLC, Memphis, Tennessee, for Appellees.

Before: SILER, LARSEN, and NALBANDIAN, Circuit Judges.

OPINION

LARSEN, CIRCUIT JUDGE.

Rhodes College expelled Prianka Bose after her organic chemistry professor, Dr. Roberto de la Salud Bea, accused her of cheating on tests and quizzes. Bose says that Bea fabricated these charges after she confronted Bea regarding inappropriate comments and questions Bea had posed to her. Bose brought numerous claims against both Rhodes and Bea, including a Title IX claim against Rhodes and a state law defamation claim against Bea. We agree with the district court that Bose's Title IX claim cannot succeed, but with respect to the defamation claim, we conclude that the district court erred by holding that Bea's statements were subject to absolute privilege under Tennessee law. Accordingly, we AFFIRM in part and REVERSE in part.

I.

We recite the facts in the light most favorable to Bose. Rhodes College is a liberal arts institution in Memphis, Tennessee that receives federal funds. In the fall of 2013, Bose enrolled as a freshman at Rhodes. During her sophomore year, she was accepted into the early selection program for George Washington University's medical school. The program guaranteed Bose admission, without taking the MCAT, if she met certain requirements, including maintaining a 3.6 GPA and receiving at least a B- in required science courses.

In the spring semester of her sophomore year, Bose successfully completed Bea's course, Organic Chemistry I. The following summer, Bea approached Bose in a parking lot on campus, where the two struck up a conversation. After exchanging pleasantries, Bea began asking more personal questions: he asked Bose how she liked to spend her evenings and free time, whether she spent time with friends, and whether she spent time with her boyfriend. As he asked her questions, Bea moved closer to Bose, who eventually stepped backward to create space between them. Bose, who had never mentioned having a boyfriend to Bea, said she had to leave. Bea then asked her whether she would like to have dinner and catch up. Bose later testified that she believed Bea was asking her out on a date, which made her uncomfortable. Bose declined the dinner invitation and left.

Bose took Bea's Organic Chemistry II class the following fall semester as she had planned. Throughout the term, Bea called Bose "pretty" or "beautiful" and would compliment her clothing. During this same semester, Bose took a corresponding lab course with a different professor. Bea regularly visited the lab, starting conversations with Bose and offering to help her; he did not give the same attention to other students. Once, Bea called Bose to his office after class and asked her whether she would like to be his research assistant; Bose said she would think about it. Bea then asked Bose if she liked to party on campus. When Bose left, Bea followed her and said he would walk her wherever she needed to go. Although Bose said that was not necessary, Bea walked her out anyway.

Throughout the semester, Bea gave all of his students the option to take tests and quizzes early. Bose often used this option. She would arrive at Bea's office around 7:30 or 7:45 a.m.; Bea would give her the test and leave shortly before 8:00 a.m. to teach another class. When he left, Bea would leave his laptop running without logging off, which meant the laptop could be accessed without his password.

In early November 2015, Bose took a quiz in Bea's office. Bose testified that Bea was in the office with her nearly the entire time she took the quiz, leaving only momentarily to collect class evaluations. Bea testified that when he returned to his office, he noticed that the answer key was open on his laptop in a larger view or "zoom" level than he typically uses. Bea explained that he then began to suspect Bose was cheating.

On November 19, 2015, Bose was sitting with a friend in the school cafeteria when Bea approached. Bea leaned over Bose's shoulder and asked sternly whether she was texting her boyfriend. Bose did not answer; Bea smiled and walked away. Later that same day, Bose and her friend approached Bea. Bea seemed happy to see Bose, but that changed when Bose confronted him, saying: "[L]ook, Dr. Bea, I don't know if you mean it this way, but I feel really uncomfortable when you ask me questions about my boyfriend, when you ask me anything about my family, I don't want personal questions, I want to keep our relationship strictly professional." Bea said nothing, looked at the ground, and walked away.

An Organic Chemistry exam was scheduled for the next day (Exam 3). Bose, who woke with a cough and fever, asked to take the exam in Bea's office to avoid disturbing the other students. Bea printed out the exam and tossed it on the desk without saying anything to Bose, which was out of character for him. Bea also logged out of his laptop before leaving the office.

When Bea returned, he found his office door shut, which caused it to lock automatically, though the door was usually left ajar when a student took a test in the office. Bea used his key to open the door and found Bose standing beside his desk. Bose testified that she had risen to open the door when she heard Bea trying to come in. Bea asked Bose whether she needed scratch paper; she said no, and Bea left. Distracted by maintenance noise near Bea's office, Bose finished the exam with the rest of the class. Bose scored 74 points out of 100, approximately 20 points lower than her score on any other quiz or test in Organic Chemistry II, but Bea recorded her score as 47.

The next week, Bose attempted to ask Bea about some practice problems before class began, but he refused to respond to her; when he eventually acknowledged her, he just shrugged his shoulders. Bose had regularly asked for help with practice problems in the past, and Bea had never refused to respond. Feeling uneasy with his changed behavior, Bose went to Bea's office after class; but Bea was again unresponsive. Eventually, Bose broke the silence by relaying her impression that Bea had seemed disinterested in teaching or helping her since she had spoken to him about the cafeteria incident. Bea still said nothing, so Bose left.

Around this time, Bea told a colleague that he suspected a student of cheating. The colleague advised Bea to create a fake answer key and stay logged in on his computer to see whether the student used it. Bea testified that he took this advice, creating a document entitled "Answer Key," with credible, though incorrect, answers to an upcoming quiz (Quiz 5). Shortly thereafter, Bose took Quiz 5 in Bea's office. Her answers matched the fake answer key precisely. Later that day, Bea emailed several administrators and accused Bose of cheating and of changing her grades in his grade roster. Bose would later deny these claims, maintaining that Bea must have matched his "fake answer key" to her actual answers, rather than the other way around.

Rhodes College Proceedings.

Student academic conduct at Rhodes is governed by an Honor Code, administered by students elected to serve on an Honor Council. Two days after Bose took Quiz 5, the Honor Council president emailed Bose to tell her she was under investigation for cheating "on multiple assignments in Organic Chemistry II." After an investigation and hearing, the Honor Council determined that Bose had violated the Honor Code. Among other things, the Honor Council "found clear and convincing evidence that [Bose] had stolen answers, most convincingly on Quiz 5, from Dr. Bea's computer and used them to cheat." Because of the "nature and severity" of the underlying offense, as well as what the Council deemed Bose's "egregious lies" during the hearing, the Honor Council voted to expel her.

Bose appealed her expulsion to the Faculty Appeals Committee. The Appeals Committee upheld the Honor Council's finding but remanded for reconsideration of the penalty, in light of new evidence in the form of tests and quizzes that...

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