Fiacco v. Sigma Alpha Epsilon Fraternity

• Decision Date: 13 June 2008
• Docket Number: No. 07-1695.,07-1695.
• Citation: 528 F.3d 94
• Parties: David FIACCO, Plaintiff, Appellant, v. SIGMA ALPHA EPSILON FRATERNITY, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

528 F.3d 94

David FIACCO, Plaintiff, Appellant, v. SIGMA ALPHA EPSILON FRATERNITY, Defendant, Appellee.

No. 07-1695.

United States Court of Appeals, First Circuit.

Heard December 3, 2007.

Decided June 13, 2008.

Bernard J. Kubetz, with whom Michael R. Clisham and Eaton Peabody were on brief, for appellant.

Catherine R. Connors, with whom Peter W. Culley, Eric J. Wycoff, and Pierce Atwood LLP were on brief, for appellee.

Before BOUDIN, Chief Judge, TORRUELLA, Circuit Judge, and STAHL, Senior Circuit Judge.

TORRUELLA, Circuit Judge.

David Fiacco brought suit against the national fraternity Sigma Alpha Epsilon ("SAE") alleging that members of its Maine chapter ("Maine Alpha") intentionally caused him psychological harm by exposing his past legal troubles to his employer and two local newspapers. The district court granted SAE summary judgment on Fiacco's intentional infliction of emotional distress claim, and Fiacco now contests this order. After careful review, we affirm.

I. Background

This action is an appeal from a grant of summary judgment, therefore we recite the facts in the light most favorable to Fiacco as non-movant. See, e.g., Franceschi v. U.S. Dep't of Veterans Affairs, 514 F.3d 81, 84 (1st Cir.2008). Fiacco was the Director of the Office of Community Standards, Rights and Responsibilities ("Office of Community Standards") at the University of Maine at Orono ("UMO"). In this capacity, Fiacco oversaw the student discipline process at UMO: he reviewed allegations of misconduct; assigned case managers to handle grievances; referred cases to UMO administrators or the Conduct Committee for adjudication; and occasionally adjudicated cases himself, subject to review by the Conduct Committee. Fiacco also developed policy statements concerning the student code of conduct and his office, and he answered questions on such matters from members of the UMO community.

In 2002, Fiacco's office started investigating Maine Alpha for misconduct. In response, a group of current and former Maine Alpha members led by Jay Sexton (collectively, "the Sexton Group") hired a private investigator to uncover evidence of any bias Fiacco might hold against SAE or fraternities in general. The investigator found several court records and newspaper articles dating back to Fiacco's college years. Those documents revealed Fiacco's past involvement in two legal proceedings: a conviction for Driving While Ability Impaired ("DWAI") that resulted in his departure from the post of Director of Public Safety at Fort Lewis College in Colorado, and a temporary restraining order secured against him by a former girlfriend. The documents gave no indication that Fiacco was biased against fraternities or, in particular, SAE.

The Sexton Group made copies of these documents and assembled them into packages containing the following unsigned memorandum:

Enclosed please find newspaper articles and court documents detailing Mr. Fiacco's previous legal difficulties: DWI, Sexual harassment, and Domestic Violence. Is this honestly the best qualified candidate the University of Maine could find for the Office of Judicial Affairs?

The packages were addressed to the University of Maine System Board of Trustees, UMO President Peter S. Hoff, several UMO deans and two local newspapers, the Bangor Daily News and The Maine Campus. They were placed in a box and mailed to a Maine Alpha alumnus in Colorado, who then anonymously sent the packages to the intended recipients.

Fiacco asserts that the disclosure of this information and the surreptitious manner in which it was disseminated caused him great distress. As a result he became depressed and withdrawn, and his concentration and work performance suffered. He also experienced bouts of insomnia, nightmares, and teeth-grinding, and had to obtain psychological counseling.

On September 19, 2005, Fiacco brought suit against SAE asserting, inter alia, intentional infliction of emotional distress ("IIED"). Federal subject-matter jurisdiction was established through the diversity of the parties' citizenship. On October 12, 2006, SAE moved for summary judgment and — with the benefit of extensive discovery, oral argument, and additional briefing — the district court granted this motion on April 5, 2007. The district court found that Fiacco was both a public official and a limited-purpose public figure; hence Fiacco's IIED claim failed because he was unable to prove that the memorandum included in the Sexton Group's packages contained a statement of fact made with actual malice. See Fiacco v. Sigma Alpha Epsilon Fraternity, 484 F.Supp.2d 158, 175 (D.Me.2007).¹ Fiacco now appeals.

II. Discussion

A. Standard of Review

Summary judgment is appropriate when the record shows that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). We review the grant of such a motion de novo. GTE Wireless, Inc. v. Cellexis Int'l, Inc., 341 F.3d 1, 4 (1st Cir.2003). In doing so, we are obliged to "view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party's favor." Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990). Nonetheless, we ignore "`conclusory allegations, improbable inferences, and unsupported speculation.'" Suárez v. Pueblo Int'l, Inc., 229 F.3d 49, 53 (1st Cir.2000) (citing Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990)). With specific regard to Fiacco's IIED claim, whether a plaintiff is a public official or public figure is an issue of law that we review de novo. Dixon v. Int'l Bhd. of Police Officers, 504 F.3d 73, 87-88 (1st Cir.2007).

B. Intentional Infliction of Emotional Distress

Under Maine law, Fiacco's IIED claim survives summary judgment if the facts establish that: 1) SAE intentionally or recklessly inflicted severe emotional distress or was certain or substantially certain that such distress would result from its conduct; 2) SAE's conduct was "so extreme and outrageous as to exceed all possible bounds of decency and must be regarded as atrocious, utterly intolerable in a civilized community"; 3) SAE's actions caused Fiacco emotional distress; and 4) Fiacco's emotional distress was so severe that no reasonable person could be expected to endure it. Curtis v. Porter, 784 A.2d 18, 22-23 (Me.2001) (internal quotation omitted); accord Wytrwal v. Saco Sch. Bd., 70 F.3d 165, 173 (1st Cir.1995).

In order to "give adequate `breathing space' to the freedoms protected by the First Amendment," the Supreme Court has established an additional requisite for IIED recovery where the distress is alleged to have been caused by published speech: public officials and public figures may only recover if they can prove that the publication that harmed them contained a false statement of fact that was made with actual malice. Hustler Magazine v. Falwell, 485 U.S. 46, 56, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988); accord Mandel v. Boston Phoenix, Inc., 456 F.3d 198, 201 (1st Cir.2006) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). We now revisit the district court's designation of Fiacco as a public official.

1. Public Official

Identifying a public official for the purpose of applying the actual malice standard is not an unequivocal process. Not every public employee is a public official, Hutchinson v. Proxmire, 443 U.S. 111, 119 n. 8, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979), but it is not clear "how far down into the lower ranks of government employees" the designation extends, New York Times, 376 U.S. at 284 n. 23, 84 S.Ct. 710. Only those public employees with "substantial responsibility for or control over the conduct of governmental affairs," however, should be considered public officials. See Rosenblatt v. Baer, 383 U.S. 75, 85, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966).

This Circuit has devised a three-part test to identify public officials in the libel context. We now apply this test to Fiacco's IIED claim as it too stems from a published statement that is alleged to have caused harm. A public official, then, is a person who 1) holds a position of influence over issues of public importance, as defined by the position's inherent attributes; 2) has special access to the media as a means of self-help; and 3) assumed the risk of diminished privacy upon taking on the position. Mandel, 456 F.3d at 204. Fiacco asserts that he does not qualify as a public official under any of these factors. Our analysis under Mandel, however, is heavily dependent on the facts averred and our thorough review of the record leads to the conclusion that Fiacco does warrant this designation.

The inherent attributes of Fiacco's position as Director of the Office of Community Standards demonstrate that he exercises influence over issues of public importance. The goings-on inside a state university are of interest to the public because state colleges such as UMO are funded with tax revenue, and it is to be expected that the public will want to know how its money is being managed and spent. See Kassel v. Gannett Co., Inc., 875 F.2d 935, 940 (1st Cir.1989) (stating that taxpayers have a general interest in the oversight of any publicly-funded employment). While Fiacco's office might address issues as mundane as the enforcement of dorm quiet hours, it is also responsible for the handling of much more sensitive situations such as allegations of date rape and hazing. These types of matters are of clear public importance and, as the office director, Fiacco has a strong influence over the handling of such matters because he sets the policies and either adjudicates or picks the adjudicators who will address such grievances. The first Mandel factor therefore weighs in favor of finding Fiacco to be a public official.

As the Director of the Office of Community Standards, Fiacco also has special access to the media as a means of...