were brought by students who had been suspended or expelled. See, e.g., id., at 762; Beilis v. Albany Medical Coll. of Union Univ., 136 A.D.2d 42, 525 N.Y.S.2d 932, 933 (App. Div. 1988); Stone v. Cornell Univ., 126 A.D.2d 816, 510 N.Y.S.2d 313, 314 (App. Div. 1987). Defendant contends that because plaintiff was neither suspended nor expelled from Vassar, we should grant summary judgment dismissing his claim.
Plaintiff has implicitly conceded this point, as he does not specifically address defendant's argument and cites no cases that indicate that we should reach a different result.
Instead, plaintiff argues that he was "constructively expelled" from Vassar when the events of the investigation and hearing made it impossible for him to continue his studies there. Plaintiff cites no authority for his constructive expulsion theory and forthrightly acknowledges that we would be making new law if we recognized it. When confronted with a question of law that has not been decided by the New York courts, we must make our "best effort to predict how the state courts would decide the issue." Deweerth v. Baldinger, 38 F.3d 1266, 1273 (2d Cir.), cert. denied, 130 L. Ed. 2d 419, 115 S. Ct. 512 (1994). In this instance, however, we need not decide whether to recognize plaintiff's "constructive expulsion" theory, because we see no evidence of conduct by defendant that could conceivably amount to a constructive expulsion of plaintiff.
While the foregoing discussion provides a sufficient basis for granting defendant's summary judgment motion on this claim, defendant argues that it is also entitled to summary judgment dismissing plaintiff's claim because the undisputed facts indicate that it substantially observed its established procedures in investigating and adjudicating the charge against plaintiff. Plaintiff responds that defendant failed to follow its established procedures by not preserving confidentiality during the investigation, by denying his request to submit the tape of the messages that Reinish received to voiceprint analysis, by not permitting all of the character witnesses that he brought to the hearing to testify, by permitting Neimeth to testify at the hearing, by allowing her to testify that anonymous witnesses had told her that plaintiff was involved in making the phone calls and by failing to declare plaintiff innocent once the Panel did not find him guilty.
A number of plaintiff's contentions may be rejected with little discussion. First, the student handbook did not impose any obligation on defendant to do a voiceprint analysis of the tape or to permit plaintiff to have such an analysis done at his expense. Next, the Panel's rules specifically provide that the Chair of the Panel had discretion to decide how many witnesses would testify at the hearing. See College Regulations Panel Rules and Procedures, at P 7, attached as Exhibit C to Friedman Aff. Moreover, nothing in defendant's procedures indicated that Neimeth could not testify for Reinish, provided that he submitted her name to the Panel twenty-four hours before the beginning of the hearing. See id., at P 3. Furthermore, defendant did not violate its established procedures by permitting Neimeth to testify about the statements made by the two women who chose to remain anonymous. Defendant's procedures do not provide for a right of confrontation, nor do they prohibit the use of evidence that might be considered hearsay in a court of law.
Plaintiff's two remaining contentions require somewhat more detailed consideration. First, plaintiff asserts that defendant failed to adhere to its policy, set forth in the student handbook, that a student accused of harassment is entitled to privacy and discretion in the investigation of the complaint. See Student Handbook § 2.01, at 68. In support of this contention, plaintiff has submitted only his own testimony that "Pamela Neimeth told several students that [he] was guilty." Affidavit of Max Fraad-Wolff, dated Sept. 2, 1995, at P 12. In order to defeat defendant's motion for summary judgment, plaintiff must present evidence of specific facts from which a reasonable jury could conclude that defendant did not preserve the required confidentiality. Plaintiff's vague, unsupported statement is not sufficient to satisfy this standard.
Next, plaintiff asserts that defendant failed to follow its established procedures by not declaring him innocent once the Panel did not find him guilty. The student handbook provides that following the hearing on a harassment charge against a student, the Panel "shall render an opinion concerning the [accused student's] guilt or innocence." Student Handbook § 2.05, at 69. The Panel's finding in plaintiff's case substantially complied with this guideline. The Panel did render an opinion concerning plaintiff's guilt or innocence: it decided that "in view of the available evidence, [it] was unable to reach a conclusion with regard to the charges brought against [plaintiff] . . . ." Exhibit A, attached to Affidavit of Brian Mann, dated Aug. 3, 1995. The student handbook also states that a student shall be presumed innocent until guilt is established. See Student Handbook § IV(A), at 80. In accordance with this policy, defendant imposed no sanctions on plaintiff as a result of the disciplinary proceeding and placed nothing in his file that referred to the incident.
Contrary to plaintiff's assertion, however, nothing in the student handbook or in the Panel's rules required defendant to declare plaintiff innocent if the Panel was unable to reach a decision. In short, therefore, none of plaintiff's contentions demonstrates that a question of fact exists regarding whether defendant substantially observed its established procedures in investigating and adjudicating the charge against him.
Defendant's motion for summary judgment dismissing this claim is granted.
II. Intentional Infliction of Emotional Distress
Plaintiff has also asserted a claim for intentional infliction of emotional distress. Under New York law, a party claiming intentional infliction of emotional distress must prove:
1) conduct that goes beyond all possible bounds of decency; 2) intention to cause distress, or knowledge that defendant's conduct would result in emotional distress; 3) severe emotional distress; and 4) a causal link between the defendant's conduct and plaintiff's distress.
Gay v. Carlson, 60 F.3d 83, 89 (2d Cir. 1995) (internal quotation omitted). New York courts have been "very strict" in applying these elements. See id.; Martin v. Citibank, N.A., 762 F.2d 212, 220 (2d Cir. 1985). The court may determine, as a threshold matter, that the conduct in question is not sufficiently outrageous to satisfy the first element of this standard. See Gay, 60 F.3d at 89 (affirming grant of motion to dismiss); Kalika v. Stern, 911 F. Supp. 594, 604-05 (E.D.N.Y. 1995) (granting summary judgment dismissing claim); Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232, 236, 448 N.E.2d 86 (N.Y. 1983) (affirming grant of motion to dismiss); Fischer v. Maloney, 43 N.Y.2d 553, 402 N.Y.S.2d 991, 993, 373 N.E.2d 1215 (N.Y. 1978) (reversing denial of summary judgment).
Even if we resolve all factual ambiguities and draw all justifiable inferences in plaintiff's favor, as we must in deciding a motion for summary judgment, no reasonable jury could conclude that defendant's conduct was beyond all possible bounds of decency. In his opposition to defendant's summary judgment motion, plaintiff has presented absolutely no evidence of specific facts that support his conclusory assertions that he was the target of a witch hunt by administrators at Vassar who sought to pin the blame for this incident on plaintiff regardless of his guilt or innocence. To the contrary, the undisputed facts in the record indicate that defendant conducted a vigorous investigation in an attempt to identify the individuals responsible and once the results of that investigation pointed to plaintiff, held a hearing to determine whether he was in fact a participant. Defendant's conduct in this respect was neither extreme nor outrageous. See Fellheimer v. Middlebury Coll., 869 F. Supp. 238, 247 (D. Vt. 1994) (granting summary judgment dismissing claim for intentional infliction of emotional distress brought under Vermont law, which applies same standard, by student at private college after he was found guilty by college disciplinary panel of "disrespect for persons" in connection with alleged sexual assault on another student). Accordingly, defendant is entitled to summary judgment dismissing plaintiff's claim for intentional infliction of emotional distress.
For the foregoing reasons, we grant defendant's motion for summary judgment dismissing the complaint.
Date: July 12, 1996
White Plains, New York
William C. Conner
Senior United States District Judge