John Harnois v. University of Massachusetts at Dartmouth

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 19-10705-RGS

JOHN HARNOIS

v.

UNIVERSITY OF MASSACHUSETTS AT DARTMOUTH, et al.

MEMORANDUM AND ORDER ON

DEFENDANTS’ RULE 12(b)(6) MOTION TO DISMISS

October 28, 2019

STEARNS, D.J.

John Harnois, a former graduate student at the University of

Massachusetts (UMass) Dartmouth, brought suit against UMass Dartmouth

and a number of its employees1 for the alleged mishandling of a Title IX

investigation and inquiries into the truthfulness of his application for

admission. Having decided defendants’ Rule 12(b)(1) motion, the court now

1 Defendants include: then-Interim Chancellor of UMass Dartmouth

Peyton R. Helm; Assistant Vice Chancellor for Student Affairs Cynthia

Cummings; Assistant Vice Chancellor Deborah Majewski; Director of

Graduate Studies and Admissions Scott Webster; then-Deputy Director, now

Director, of Diversity and Inclusion David Gomes; UMass Dartmouth

Professor John Buck; and UMass Dartmouth Chief of Police Emil Fioravanti.

Harnois also indicates an intent to sue an unnamed UMass Dartmouth

professor (Professor Doe).

turns to the related Rule 12(b)(6) motion.2

For the reasons explained below, defendants’ Fed. R. Civ. P. 12(b)(6)

motion will be denied with respect to Counts I, II, III (procedural due process

2 Claims that survived the Rule 12(b)(1) motion include: claims against

UMass Dartmouth for violating Title IX (Counts I and II); claims against all

defendants in their individual capacities for denying Harnois due process in

violation of 42 U.S.C. § 1983 (Count III); claims against Helm, Cummings,

Gomes, and Majewski in their individual capacities for violating Harnois’s

First Amendment rights in violation of 42 U.S.C. § 1983 (Count IV); a claim

against UMass Dartmouth for imposing upon Harnois an unconstitutionally

vague and overbroad Sexual Violence Protocol and Student Conduct Policies

and Procedures (Count V); claims against Cummings, Majewski, Professor

Doe, and Gomes in their individual capacities for defamation (Count VI);

claims against Cummings, Majewski, Gomes, and Professor Doe in their

individual capacities for violation of the Massachusetts Civil Rights Act

(MCRA) (Count VII); claims against Cummings and Majewski in their

individual capacities for intentional interference with advantageous third

party relations (Count VIII); claims against Helm, Cummings, Gomes, and

Majewski in their individual capacities for breach of fiduciary duty in

disclosing confidential information (Count X); claims against Helm, Gomes,

Cummings, and Majewski in their individual capacities for invasion of

privacy (Count XI); claims against Gomes, Helm, Cummings, and Majewski

in their individual capacities for malicious prosecution and abuse of process

(Count XII); claims against Buck and Webster in their individual capacities

for promissory estoppel (Count XV); claims against Majewski, Gomes,

Cummings, Professor Doe, Buck, Fioravanti, and Helm in their individual

capacities for intentional infliction of emotional distress (Count XVI); claims

against Cummings, Buck, Gomes, Helm, and Majewski in their individual

capacities for intentional interference with contractual relations (Count

XVIII); and claims against Cummings, Professor Doe, Buck, Gomes,

Fioravanti, Helm, and Majewski in their individual capacities for civil

conspiracy (Count XIX). Harnois concedes that Count X is vulnerable to

defendants’ Rule 12(b)(6) motion. Dkt #56 at 29.

claims against Cummings, Majewski, Gomes, and Helm only), IV, VII

(against Cummings and Majewski only), VI (against Cummings, Majewski,

and Professor Doe only), Count VIII (against Cummings only), and XV

(Webster only). Defendants’ Rule 12(b)(6) motion will be allowed as to all

remaining claims.

BACKGROUND

The essential facts, viewed in the light most favorable to plaintiff as the

nonmoving party, are as follows. Harnois is a disabled veteran, who enrolled

at UMass Dartmouth to pursue a Ph.D. in Oceanography.

In April of 2015, after completing a graduate internship in underwater

acoustics, Harnois was recommended to UMass Dartmouth Professor John

Buck, who agreed to serve as his PhD supervisor. Professor Buck also

promised to help Harnois develop research projects for his dissertation.

Harnois has a prior criminal conviction which he had disclosed to the

Director of Graduate Studies and Admissions, Scott Webster. Webster

assured Harnois that he and his staff would keep the conviction confidential.

Assistant Vice Chancellor for Student Affairs Cynthia Cummings knew that

Webster had reviewed Harnois’s disclosure statement.

In September of 2015, Harnois enrolled in three classes at UMass

Dartmouth as part of a Master’s degree program. Harnois joined the

Master’s program with the understanding that he “would be considered on

the FastTrak program for acceptance into the Ph.D. program once [he] wrote

a research proposal.” Third Am. Compl. (TAC) ¶ 37 n.3. His three course

teachers, together with Professor Buck, recommended Harnois for the PhD

program.

In December of 2015, Harnois developed a joint research project with

Professor Buck and another senior scientist. In February of 2016, Professor

Buck arranged for Harnois’s admission to a prestigious bioacoustics summer

program. During the Spring of 2016, Harnois was recruited by Duke

University to apply to a summer internship at the Duke Marine Lab. In the

Spring of 2016, Harnois maintained a 4.0 GPA in his graduate classes.

On May 3, 2016, Cummings ordered Harnois to attend a meeting to

discuss the disclosure statement that Harnois provided on his application for

admission. The following day, Harnois met with Cummings and Majewski.

At the start of the meeting, Cummings accused Harnois of “fraudulently

disclosing his history in his application.” Id. ¶ 113. She demanded that

Harnois withdraw from UMass Dartmouth. Cummings also told Harnois

that several individuals “had recently filed formal complaints regarding

[Harnois’s] misconduct, which created a hostile learning environment, and

that [UMass Dartmouth was] considering a Title IX investigation.” Id. ¶ 118.

Harnois asked to be informed of the specifics of the allegations made against

him, including when and by whom the allegations were made. Cummings

told him no more than that complaints about his conduct had been received

as early as December of 2015.

During the meeting, Cummings demanded that Harnois sign a

document acknowledging that if he were to remain on the UMass Dartmouth

campus after the meeting, he would subject himself to arrest for criminal

trespass. Harnois objected and asked to speak with Professor Buck for

advice. Cummings rejected the request.

Cummings then told Harnois that if he withdrew voluntarily from

UMass Dartmouth he would not be subjected to the Title IX investigation

and his criminal history would be kept secret. Cummings promised to ensure

that Harnois would receive excellent letters of recommendation, to continue

his education elsewhere. When Harnois declined to withdraw, Cummings

threatened to “get his kind.”3 Id. ¶ 146.

UMass Dartmouth suspended Harnois effective immediately on May

4, 2016, citing a pending Title IX investigation and the allegation that

Harnois had “a more extensive criminal history than [he] disclosed prior to

3 More specifically, the Third Amended Complaint quotes Cummings

as saying: “If you won’t leave, I’ll get your kind with a Title IX investigation.”

TAC ¶ 146.

being admitted to the Master’s program in Marine Science.” Dkt # 43-1 at 1

(incorporated by reference). Cummings wrote a letter reporting Harnois’s

suspension, his criminal record, and that Harnois had been banned from the

UMass Dartmouth campus without a police escort. Cummings copied others

on the letter, including the Dean of Harnois’s degree program and three of

her staff members who had no prior knowledge of Harnois’s criminal record.

Following the suspension, Cummings and Majewski ordered Steve

Lorenz, a dean at the UMass Dartmouth School for Marine Science and

Technology (SMAST), “to hold an unprecedented all hands meeting with

compulsory attendance regarding Plaintiff.” TAC ¶ 160. The meeting

participants were told of the Title IX investigation and the fact that Harnois

had been banned from campus grounds. In conveying this information,

Lorenz intimated that students should avoid speaking with Harnois and

should consider him dangerous. Within a week of the “all hands” meeting,

the entire faculty, staff, and students in Harnois’s degree program were

aware that he had a criminal record and was the subject of an impending

Title IX investigation.

In the weeks that followed, Harnois attempted to learn the nature of

the specific allegations made against him. In response to a May 9, 2016 email

asking Majewski for a written copy of the complaints, Majewski told Harnois

the Title IX investigation would begin immediately and informed Harnois of

his procedural rights in anticipation of an investigatory interview session.

Majewski said only that UMass Dartmouth was investigating alleged

violations of the University’s Policies on Equal Opportunity, Discrimination,

Harassment, and Sexual Violence. Harnois sought to have Professor Buck

serve as his advisor during the Title IX investigation; Majewski rejected

Harnois’s request and suggested that he retain outside counsel.

On May 17, 2016, UMass Dartmouth Police filed a report based on

information provided by Cummings and Professor Doe that Harnois had

logged into his campus computer in violation of the “Do Not Trespass” order.

During a subsequent investigation, a UMass Dartmouth police detective

confiscated Harnois’s computer to conduct a forensic examination. The

police failed to uncover any violation by Harnois of the no trespassing order.4

On May 20, 2016, Mehmet Baysan, Harnois’s attorney, emailed

Majewski raising the first of several objections to UMass Dartmouth’s refusal

to provide details of the allegations against Harnois. On June 7, 2016,

Majewski responded only that Harnois’s behavior had created “an

4 In March of 2019, UMass Dartmouth Chief of Police Fioravanti

allegedly refused to assist Harnois in his effort to file felony extortion charges

against Cummings and Majewski. Fioravanti also refused to reveal the

identity of Professor Doe.

uncomfortable learning and work environment” for his colleagues. Id. ¶ 201

n.50.

During its investigation, UMass Dartmouth’s Title IX office asked two

female students in Harnois’s graduate program to file complaints against

Harnois but both refused to do so. Eventually, the Title IX investigator

contacted every female student in Harnois’s classes in search of derogatory

information.

On July 15, 2016, Harnois and Baysan met with Cummings, Majewski,

and then-Deputy Director (now Director) of Diversity and Inclusion David

Gomes, for an investigative interview. Harnois was not informed of his

accusers or the details of the allegations. The interview was conducted in an

adversarial manner with questions often so vague – for example, “did you

ever deny helping someone with their homework” – that Harnois was unable

to answer them. Id. ¶ 210. In total, Gomes asked Harnois approximately 15-

20 questions, addressing generally “innocuous behavior.” Id. ¶ 209.

Harnois’s request for a written copy of the questions was denied.

As a result of his suspension from campus for the spring/summer term,

Harnois was unable to attend classes, seminars, and university-sponsored

programs. Harnois also was unable to access academic books, notes, and a

personal computer that had been seized by the investigators. In August of

2016, Harnois began suffering from panic attacks, insomnia, headaches,

depression, PTSD flashbacks, loss of hair and hair color, and grinding of

teeth so severe that two molars cracked.

In a letter dated August 30, 2016, Majewski informed Harnois that the

evidence was insufficient to support a finding that Harnois had violated

UMass Dartmouth’s Policies on Equal Opportunity, or Title IX.

Nevertheless, Harnois was “sanctioned with a warning in writing.” Id. ¶ 228.

In addition, Harnois was informed that his studies would be restricted and

that any repeat behavior would incur “immediate harsh penalties.” Id.

Subsequently, Harnois was confined to a remote, supervised

workspace; his engagements with other students became limited; and he was

prevented from going about his day in the graduate student work area.

Although Harnois enrolled in classes for the 2016 Fall semester, he felt exiled

from the academic community. In September of 2016, a SMAST dean

informed Harnois that because of the investigation, Professor Buck would no

longer serve as his thesis advisor. The dean told Harnois that his

matriculation status was being changed to that of a non-thesis degree

candidate from that of a Master’s student “with a research thesis/fasttrack to

PhD.” Id. ¶ 236. Harnois withdrew from an oceanography course because

the course required “classroom deliberation with other students, mostly

females.” Id. ¶ 249. He felt compelled to seek a leave of absence to receive

psychological treatment because his on-campus work environment became

“hostile and toxic.” Id. ¶ 8.

Harnois filed this lawsuit on April 12, 2019 and filed a Third Amended

Complaint on July 17, 2019.

DISCUSSION

“To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on

its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007). Two basic principles guide the

court’s analysis. “First, the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal conclusions.”

Iqbal, 556 U.S. at 678. “Second, only a complaint that states a plausible claim

for relief survives a motion to dismiss.” Id. at 679. A claim is facially

plausible if its factual content “allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. at 678.

Counts I and II: Title IX violations. Harnois alleges that UMass

Dartmouth violated Title IX of the Educational Amendments of 1972, 20

U.S.C. § 1681, et seq. He separately alleges selective enforcement, erroneous

outcome, deliberate indifference/hostile environment harassment, and Title

IX retaliation.

Title IX provides in pertinent part that “[n]o person . . . shall, on the

basis of sex, be excluded from participation in, be denied the benefits of, or

be subjected to discrimination under any education program or activity

receiving Federal financial assistance.” 20 U.S.C. § 1681(a). Title IX provides

for an implied private right of action for money damages, extending “only to

claims against the educational institution itself.” Frazier v. Fairhaven Sch.

Comm., 276 F.3d 52, 65 (1st Cir. 2002).

The University of Massachusetts receives federal financial assistance;

accordingly, UMass Dartmouth is liable to suit under Title IX. See Doe v.

Univ. of Massachusetts-Amherst, 2015 WL 4306521, at *6 (D. Mass. July 14,

2015). Harnois asserts that he was a student pursuing a graduate degree at

UMass Dartmouth; he thus alleges participation in an “education program

or activity receiving Federal financial assistance.” 20 U.S.C. § 1681.

Selective enforcement. To make out a selective enforcement claim, a

plaintiff must allege facts sufficient to support a reasonable inference that

“‘the severity of the penalty and/or the decision to initiate the proceeding

was affected by [Harnois’s] gender,’” Haidak v. Univ. of Massachusetts-

Amherst, 933 F.3d 56, 74 (1st Cir. 2019), quoting Yusuf v. Vassar Coll., 35

F.3d 709, 715 (2d Cir. 1994), and – more specifically – that gender was a

“motivating factor.” Haidak, 933 F.3d at 74.5

Here, Harnois points to Cummings’s alleged threat: “If you won’t leave,

I’ll get your kind with a Title IX investigation.” TAC ¶ 146. Harnois invites

the inference that “your kind” referred to students with Harnois’s

characteristics, including his gender. Harnois alleges also that funding

pressures motivated UMass Dartmouth to open Title IX investigations

against males specifically, a) because University leadership operated under

a belief – as allegedly expressed publicly by UMass Dartmouth’s Vice

Chancellor for Student Affairs – that “sexual assaults are perpetrated

[exclusively] by men,” id. ¶ 84; b) because the U.S. Department of Education

had named the University of Massachusetts as one of several colleges and

universities under investigation for possible Title IX violations; and c)

because news media, and institutional actors from other universities,

recognized, as Harnois explains it, that “a fear of governmental intervention

and withdrawal of funds could lead colleges to rush to judgment against male

students.” Id. ¶ 67. According to Harnois, “[t]he threat of revocation of

federal funds – the ultimate penalty – was a powerful tool in motivating

colleges, including [UMass Dartmouth], to aggressively pursue and punish

5 The First Circuit has “never recognized a private right of action for

disparate-impact discrimination under Title IX.” Haidak, 933 F.3d at 75.

male students accused of sexual misconduct.” Id. ¶ 69.

Harnois also maintains that UMass Dartmouth’s recent settlement of

a costly gender discrimination lawsuit initiated by a female employee

“hypersensitized” UMass Dartmouth to “suits by females filing Title IX

discrimination complaints,” id. ¶ 83, such that UMass Dartmouth was

motivated to undertake preemptive and precipitous investigation of male

students accused of Title IX misconduct. These allegations, collectively, if

believed by a jury, are sufficient to support an inference that Harnois’s

gender was a “motivating factor” in the decision of UMass Dartmouth to

initiate a baseless Title IX investigation.

Erroneous outcome. “To succeed on [an] erroneous outcome claim, [a

plaintiff] must offer evidence (1) that would ‘cast some articulable doubt on

the accuracy of the outcome of the [Title IX] disciplinary proceeding’ and (2)

show ‘gender bias was a motivating factor [behind the erroneous finding].’”

Doe v. Trs. of Bos. Coll., 892 F.3d 67, 91 (1st Cir. 2018), quoting Yusuf, 35

F.3d at 715. Generally, to demonstrate the requisite articulable doubt in an

erroneous outcome claim, a plaintiff:

may allege particular evidentiary weaknesses behind the finding

of an offense such as a motive to lie on the part of a complainant

or witnesses, particularized strengths of the defense, or other

reason to doubt the veracity of the charge. A complaint may also

allege particular procedural flaws affecting the proof.

Yusuf, 35 F.3d at 715. To demonstrate that gender bias was a motivating

factor, a plaintiff may allege facts including, “inter alia, statements by

members of the disciplinary tribunal, statements by pertinent university

officials, or patterns of decision-making that also tend to show the influence

of gender.” Yusuf, 35 F.3d at 715. Facts alleged must “tend to show that there

was a causal connection between the outcome of [Harnois’s] disciplinary

proceedings and gender bias.” Trs. of Bos. Coll., 892 F.3d at 91.

Here, Harnois identifies several alleged procedural flaws corrosive of

the proof in his case, including the official solicitation of baseless complaints

from Harnois’s female fellow students. Harnois also alleges that during his

Title IX investigation, Gomes did not interview any of Harnois’s witnesses,

and failed to consider potentially exculpatory evidence — such as, for

instance, Harnois’s discovery and reporting of an on-campus cheating

scandal, which might have given several individuals a motive to disparage

him. Harnois points additionally to public statements by UMass Dartmouth

officials, which he alleges demonstrate an inappropriate institutional bias

towards an indiscriminate belief in the truth of Title IX complaints. For

instance, Harnois points to a UMass Dartmouth spokesperson’s alleged

statement that “[w]e want to assume accuracy in what the victim is saying.”

Id. ¶ 81 n.13. Finally and most forcefully, Harnois asserts that he was

subjected to sanctions without any finding of a disciplinary violation. These

alleged facts, taken alongside the allegations described in the court’s review

of Harnois’s selective enforcement claim, supra, make out a plausible

erroneous outcome claim.

Deliberate indifference/hostile environment harassment. To set out a

“deliberate indifference” claim under Title IX, a plaintiff must allege facts to

demonstrate that:

(1) “he or she was subject to ‘severe, pervasive, and objectively

offensive’ [harassment cognizable under Title IX]”; (2) “the

harassment caused the plaintiff to be deprived of educational

opportunities or benefits”; (3) the funding recipient was aware of

such harassment; (4) the harassment occurred “in [the funding

recipient’s] programs or activities”; and (5) the funding

recipient’s response, or lack thereof, to the harassment was

“clearly unreasonable.”

Doe v. Brown Univ., 896 F.3d 127, 130 (1st Cir. 2018), quoting Porto v. Town

of Tewksbury, 488 F.3d 67, 72-73 (1st Cir. 2007).

Here, Harnois alleges that he was “intentionally subjected to

unfounded allegations and an unfair process” because he was male, TAC ¶

307; that he was deprived of an adequate “educational environment” as a

result of “discriminatory intimidation, ridicule, and insult” stemming from

“repeated defamations . . . the ‘all-hands meeting’ at SMAST . . . [his] punitive

interim suspension . . . false criminal allegations by UMass Dartmouth . . .

[and] final sanctions,” id. ¶¶ 309, 310; that UMass Dartmouth “had actual

notice of the harassment” as a result of the complaints Harnois lodged with

University officials; that the harassment occurred in the context of a

University-imposed disciplinary process; and that UMass Dartmouth’s

response to the harassment was to impose restrictions which “no reasonable

person could endure.” Id. ¶ 309. These alleged facts suffice to make out a

claim for deliberate indifference/hostile environment harassment.

Title IX retaliation. “[W]hen a funding recipient retaliates against a

person because he complains of sex discrimination, this constitutes

intentional ‘discrimination’ ‘on the basis of sex,’ in violation of Title IX.”

Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 174 (2005). “[A] plaintiff

may establish a prima facie case for a Title IX retaliation claim by alleging

facts sufficient to show that [he] engaged in activity protected by Title IX,

that the alleged retaliator knew of the protected activity, that the alleged

retaliator subsequently undertook some action disadvantageous to the actor,

and that a retaliatory motive played a substantial part in prompting the

adverse action.” Frazier, 276 F.3d at 67.

Harnois alleges that after he became the subject of a Title IX

investigation, he complained to UMass Dartmouth officials on four distinct

occasions “that the Title IX investigation was initiated and conducted solely

to pressure [Harnois] into withdrawing because he was a male student with

a [criminal] conviction.” TAC ¶ 318. According to Harnois, because he

complained, UMass Dartmouth took measures that “purposely created a

hostile learning environment so severe and perverse that neither [Harnois]

nor a reasonable person could expect to endure under the circumstances,

which constructively expelled [Harnois], compelling him to seek a leave of

absence.” Id. ¶ 324. These measures included the “interventions” described

above, the downgrading of Harnois’s academic program to a non-thesis

Master’s degree, and an alleged “smear campaign” on campus that “caus[ed]

him to receive treatment as a pariah precluding any opportunity for research

collaboration.” These allegations sketch out a plausible claim for Title IX

retaliation.

Counts III and IV: Denial of due process and First

Amendment rights. Proceeding under the federal Civil Rights Act, 42

U.S.C. § 1983, Harnois alleges violations of his procedural and substantive

due process rights and First Amendment rights. To state a claim under

section 1983, Harnois must plead a prima facie case showing that a person

acting “under color of state law” deprived him of a “right[] secured by the

Constitution or by federal law.” Santiago v. Puerto Rico, 655 F.3d 61, 68 (1st

Cir. 2011), quoting Redondo–Borges v. U.S. Dep’t of HUD, 421 F.3d 1, 7 (1st

Cir.2005). The University of Massachusetts “is a public institution

established under the laws of the Commonwealth of Massachusetts,” Ali v.

Univ. of Massachusetts Medical Ctr., 140 F. Supp. 2d 107, 110 (D. Mass.

2001); see also United States v. Univ. of Massachusetts, Worcester, 812 F.3d

35, 40 (1st Cir. 2016), and as such it and its agents acting in their official

capacities are immune from suit under the Eleventh Amendment. Thus, to

the extent that Harnois seeks damages, his claims lie against defendants –

all UMass Dartmouth employees – only in their individual capacities.

Harnois makes such claims against all defendants under Count III (due

process), and defendants Helm, Cummings, Gomes, and Majewski under

Count IV (denial of First Amendment Rights/free speech retaliation).6

Procedural Due Process. “In order to establish a procedural due

process claim under section 1983, a plaintiff ‘must allege first that [he] has a

property interest as defined by state law and, second, that the defendants,

acting under color of state law, deprived [him] of that property interest

without constitutionally adequate process.’” Marrero-Gutierrez v. Molina,

491 F.3d 1, 8 (1st Cir. 2007), quoting PFZ Props., Inc. v. Rodriguez, 928 F.2d

28, 30 (1st Cir. 1991). Under First Circuit law, a public university student,

such as Harnois, has a constitutionally protected property right in his or her

6 In ruling on defendants’ Rule 12(b)(1) motion, the court dismissed

Harnois’s claim against UMass Dartmouth under Count IV. Dkt #52 at 10.

education. See Gorman v. Univ. of Rhode Island, 837 F.2d 7, 12 (1st Cir.

1988), citing Goss v. Lopez, 419 U.S. 565, 574-576 (1975) (“[A] student facing

expulsion or suspension from a public educational institution is entitled to

the protections of due process.”).

Harnois alleges that he did not receive constitutionally adequate

process, both with respect to his suspension from UMass Dartmouth and his

treatment following termination of the Title IX investigation. “Notice and an

opportunity to be heard have traditionally and consistently been held to be

the essential requisites of procedural due process.” Gorman, 837 F.2d at 12.

“In the school disciplinary context, the opportunity to be heard requires

‘some kind of hearing.’” Haidak, 933 F.3d at 66, quoting Goss, 419 U.S. at

579 (emphasis added). “As a general rule [absent exigencies that may

provide an exception], both notice and a hearing should precede a

suspension.” Haidak, 933 F.3d at 72.

According to Harnois, Cummings’s stayed practice was to place an

accused student “immediately” on interim suspension pending an

investigation. TAC ¶ 84. Harnois maintains that his summary suspension

was unjustified by any exigency. Harnois also alleges violations of his due

process rights in the conduct of the Title IX investigation, notably the

defendants’ refusal to inform him of the specific charges. Harnois further

claims that whether or not due process should have afforded him or his

attorney the right to cross-examine the Title IX complainants, “Gomes,

Majewski, and Cummings failed to question victim(s) credibility and

motivations to prevaricate regarding a graduate course cheating scandal

reported by [Harnois].” Id. ¶ 344. See Haidak, 933 F.3d at 72 (concluding

that “due process in the university disciplinary setting requires ‘some

opportunity for real-time cross-examination, even if only through a hearing

panel’”).

Finally, Harnois avers that despite repeated requests he was never

given a copy of the investigation report or given an opportunity to respond

to the findings or conclusions, nor was he allowed to appeal the post-

termination sanctions imposed by Cummings, which, which had the effect of

“constructively expel[ing]” him. TAC ¶ 324. Although sketchy, the collective

allegations of a denial of basic due process rights is disturbing enough to

merit further development of the facts on discovery.7

7 Although Harnois names all defendants under Count III, he does not

plead facts to indicate that any defendants other than Cummings, Majewski,

Gomes, and Helm had influence over the initiation or execution of the

disciplinary process. Accordingly, the court will permit Harnois to maintain

Count III against these defendants only. Defendants argue that they are in

any event protected by qualified immunity. Dkt #41 at 7. “The doctrine of

qualified immunity protects government officials ‘from liability for civil

damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have

Substantive Due Process. Harnois posits that defendants violated his

substantive due process rights by engaging in “arbitrary and/or irrational

behavior which was not justified by any governmental interest.” TAC ¶ 344.

The First Circuit has held that for a substantive due process claim to be

viable, “state action must in and of itself be egregiously unacceptable,

outrageous, or conscience-shocking.” Amsden v. Moran, 904 F.2d 748, 754

(1st Cir. 1990); see also, Connor B. ex rel. Vigurs v. Patrick, 774 F.3d 45, 53

(1st Cir. 2014) (same). The Supreme Court has recognized a substantive due

process violation in but a few instances involving intimate matters of

personal autonomy. The facts alleged by Harnois do not remotely rise to that

level.

Count 4: Denial of First Amendment Rights and Free Speech

Retaliation. Harnois contends that defendants Helm, Cummings, Gomes,

and Majewski deprived him of his First Amendment rights by infringing on

known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009), quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). “It is not always possible to determine

before any discovery has occurred whether a defendant is entitled to

qualified immunity, and courts often evaluate qualified immunity defenses

at the summary judgment stage.” Giragosian v. Bettencourt, 614 F.3d 25,

29 (1st Cir. 2010). The court declines to decide the issue of qualified

immunity at this stage, noting that defendants are free to assert qualified

immunity after further development of the factual record. Without a more

comprehensive and balanced fleshing out of the facts, any decision on the

issue of qualified immunity would be premature.

his right to speak freely with UMass Dartmouth faculty and students and by

retaliating against him when he protested the restrictions. As defendants

have declined to address either allegation, see Dkt # 43 at 8 n.7, the court

will deny the motion to dismiss Harnois’s First Amendment claims.

Count VII: Violation of the MCRA as to defendants

Cummings, Majewski, Gomes, and Professor Doe. To set out a claim

under the Massachusetts Civil Rights Act (MCRA), Mass. Gen. Laws ch. 12, §

11I, a plaintiff must allege facts to establish that:

“(1) their exercise or enjoyment of rights secured by the

Constitution or laws of either the United States or of the

Commonwealth, (2) have been interfered with, or attempted to

be interfered with, and (3) that the interference or attempted

interference was by threats, intimidation, or coercion.”

Davis v. Rennie, 264 F.3d 86, 111 (1st Cir. 2001), quoting Swanset Dev. Corp.

v. City of Taunton, 423 Mass. 390, 395 (1996) (internal quotation marks

omitted). Whether a defendant’s conduct amounted to “threats,

intimidation, or coercion” for purposes of the MCRA is gauged by an

objective “reasonable person” standard. Planned Parenthood League of

Massachusetts, Inc. v. Blake, 417 Mass. 467, 474-475 (1994).8

8 “The MCRA is intended to provide a remedy coextensive with that of

§ 1983. Violations of § 1983, however, are not per se violations of the

MCRA.” Maraj v. Massachusetts, 836 F. Supp. 2d 17, 30 (D. Mass. 2011)

(internal citation and quotations omitted).

For purposes of the MCRA,

a “[t]hreat” . . . involves the intentional exertion of pressure to

make another fearful or apprehensive of injury or harm. . . .

‘Intimidation’ involves putting in fear for the purpose of

compelling or deterring conduct. . . . [“Coercion” involves] “the

application to another of such force, either physical or moral, as

to constrain [a person] to do against his will something he would

not otherwise have done.”

Planned Parenthood League of Massachusetts, Inc., 417 Mass. at 474. While

most cases decided under the MCRA involve a factual element of physical

confrontation or force, this is not an absolute requirement. See Buster v.

George W. Moore, Inc., 438 Mass. 635, 648 (2003) (“[I]n certain

circumstances, economic coercion, standing alone, may be actionable under

the act.”); Kennie v. Natural Res. Dep’t of Dennis, 451 Mass. 754, 760, 763

(2008) (interference with protected property rights).

Harnois alleges that defendants “coerced, intimidated and threatened”

him in attempting to force him to leave UMass Dartmouth, depriving him of

his rights under Title IX, his constitutional due process rights, and his

property right to continued public education. He asserts that Cummings and

Majewski repeatedly threatened to disseminate confidential information

about him and extort him to withdraw. He points to “extreme and

unwarranted interim sanctions” and the “interventions” implemented at

Cummings’s and Majewski’s direction. Id. ¶ 405. The allegations are

sufficient to overcome a motion to dismiss by Cummings and Majewski but

in the absence of allegations sufficient to state an MCRA claim as to

defendants Gomes and Professor Doe, the MCRA claim as to these two

defendants will be dismissed.9

Count V: UMass Dartmouth’s Student Conduct Policies and

Procedures and Sexual Violence Protocol. Harnois alleges that

UMass Dartmouth’s Student Conduct Policies and Procedures and Sexual

Violence Protocol, as they existed in 2015, were constitutionally overbroad

and seeks declaratory judgment to that effect. Even if this were a

recognizable claim under federal law (it is not), it is precluded by Eleventh

Amendment considerations.

Count VI: Defamation as to defendants Cummings,

Majewski, Professor Doe, and Gomes. “A defamation action, which

encompasses libel and slander, affords a remedy for damage to the

reputation of the injured party.” HipSaver, Inc. v. Kiel, 464 Mass. 517, 522

(2013). To set out a claim for defamation, a plaintiff must allege facts

9 Public officials may claim immunity from suit under the state MCRA

patterned after immunity under the federal civil rights statutes. Duarte v.

Healy, 405 Mass. 43, 46-47 (1989); Rodriques v. Furtado, 410 Mass. 878,

881-882 (1991). As noted, supra, the court declines to decide the issue of

qualified immunity at this stage, noting that defendants are free to assert

qualified immunity after further development of the factual record.

sufficient to infer that “the defendant was at fault for the publication of a false

statement regarding the plaintiff, capable of damaging the plaintiff’s

reputation in the community, which either caused economic loss or is

actionable without proof of economic loss.” White v. Blue Cross & Blue

Shield of Mass., Inc., 442 Mass. 64, 66 (2004) (footnote omitted).

The test is whether, in the circumstances, the writing discredits

the plaintiff in the minds of any considerable and respectable

class of the community. A publication is defamatory when it

tends to injure one’s reputation in the community and to expose

him to hatred, ridicule, and contempt, an imputation of crime or

of bad character or an injury in one’s office or business not being

essential.

Brauer v. Globe Newspaper Co., 351 Mass. 53, 55-56 (1966), quoting

Muchnick v. Post Pub. Co., 332 Mass. 304, 306 (1955).

An allegedly defamatory statement need not be an explicit assertion.

“An insinuation may be as actionable as a direct statement.” Mabardi v.

Boston Herald-Traveler Corp., 347 Mass. 411, 413 (1964), quoting Thayer v.

Worcester Post Co., 284 Mass. 160, 162 (1933). “The existence of defamatory

innuendo is a question of fact for a jury to consider.” Reilly v. Associated

Press, 59 Mass. App. Ct. 764, 774 (2003). In Massachusetts, “private

persons, as distinguished from public officials and public figures, may

recover compensation on proof of negligent publication of a defamatory

falsehood.” Stone v. Essex Cty. Newspapers, Inc., 367 Mass. 849, 858

(1975). In addition, “Massachusetts, by statute, allows a plaintiff to recover

for a truthful defamatory statement if it was published in writing (or its

equivalent) and with actual malice.” Barrows v. Wareham Fire Dist., 82

Mass. App. Ct. 623, 628 n.6 (2012), citing Mass. Gen. Laws ch. 231, § 92.

“There is no requirement [that a defamatory] matter be communicated to a

large or even substantial group of persons. It is enough that it is

communicated to a single individual other than the one defamed.” Brauer,

351 Mass. at 56 (internal quotation omitted).

Here, Harnois alleges that he learned from the director of the Marine

Conservation Molecular Facility at the Duke University Marine Lab that

defendant Cummings made at least two false statements about him to the

Duke Marine Lab. According to Harnois, Cummings told Marine Lab staff

that Harnois was a threat to school safety and that Harnois lied on his

application to UMass Dartmouth about his criminal history. Harnois alleges

that Duke denied him admission because of these statements, and that these

statements damaged his reputation. Further, Harnois alleges that

Cummings and Majewski promulgated a written letter to others in the

UMass Dartmouth community falsely stating that Harnois fraudulently

signed his application, harming his reputation. Finally, Harnois alleges that

Cummings and Professor Doe intentionally filed a false report of criminal

conduct against Harnois with the UMass Dartmouth police department,

“which in part caused [Harnois] to be shunned upon his return after his

reinstatement.” TAC ¶ 392. The alleged facts state a claim of defamation

against Cummings, Majewski, and Professor Doe in their individual

capacities, but not defendant Gomes.

Count VIII: Intentional interference with third party

advantageous relations as to defendants Cummings and

Majewski. Harnois alleges that he had present and prospective

advantageous relations with his advisor John Buck and with scientists with

whom he had agreed to collaborate on scientific research, including

individuals at Duke Marine Lab, Woods Hole Oceanographic Institute, and

the Center for Marine Science & Technology at the Pennsylvania State

University.

The tort of intentional interference with advantageous relations

protects a plaintiff's present and future economic interests from

wrongful interference. . . . To make a successful claim for

intentional interference with advantageous relations, a plaintiff

must prove that (1) he had an advantageous relationship with a

third party (e.g., a present or prospective contract or

employment relationship); (2) the defendant knowingly induced

a breaking of the relationship; (3) the defendant’s interference

with the relationship, in addition to being intentional, was

improper in motive or means; and (4) the plaintiff was harmed

by the defendant’s actions.

Blackstone v. Cashman, 448 Mass. 255, 259-260 (2007).

Here, Harnois (1) alleges that he had advantageous professional

relationships with several third parties; that Cummings (2) knowingly

induced a breaking of these relationships by conveying false information

about his character and status at UMass Dartmouth; that (3) Cummings did

so intentionally and maliciously; and that (4) Harnois was harmed by

Cummings’s actions, because his advantageous relationships ended and

former collaborators and prospective collaborators ceased communicating

with Harnois. These allegations state a claim against Cummings under

Count VIII, but not as to Majewski against whom no competent facts are

pled.

Count XI: Invasion of privacy as to defendants Helm, Gomes,

Cummings, and Majewski. Under Mass. Gen. Laws ch. 214, § 1B, “[a]

person shall have a right against unreasonable, substantial or serious

interference with his privacy.” “To sustain a claim for invasion of privacy,

the invasion must be both unreasonable and substantial or serious.” Nelson

v. Salem State Coll., 446 Mass. 525, 536 (2006); see also Ayash v. Dana-

Farber Cancer Inst., 443 Mass. 367, 382 (2005), quoting Schlesinger v.

Merrill Lynch, Pierce, Fenner & Smith, Inc., 409 Mass. 514, 517-518 (1991)

(“We have stated that, despite the disjunctive ‘or,’ the phrase ‘unreasonable,

substantial or serious’ is inclusive, as § 1B ‘obviously was not intended to

prohibit serious or substantial interferences which are reasonable or

justified.’”). The Massachusetts Supreme Judicial Court “has interpreted §

1B to proscribe the required disclosure of facts about an individual that are

of a highly personal or intimate nature when there exists no legitimate,

countervailing interest.” Bratt v. Int’l Bus. Machines Corp., 392 Mass. 508,

518 (1984). Viable cases usually involve the public disclosure of private facts

and require proof of dissemination. Ayash v. Dana-Farber Cancer Inst., 443

Mass. 367, 382 n.16 (2005). As the Supreme Judicial Court has explained:

As recognized in the Restatement (Second) of Torts, “[e]very

individual has some phases of his life and his activities and some

facts about himself that he does not expose to the public eye, but

keeps entirely to himself or at most reveals only to his family or

to close personal friends. . . . When these intimate details of his

life are spread before the public gaze in a manner highly offensive

to the ordinary reasonable [person], there is an actionable

invasion of his privacy, unless the matter is one of legitimate

public interest.”

Ayash, 443 Mass. at 382 (2005), quoting Restatement (Second) of Torts §

652D comment b (1977).

Here, Harnois asserts that defendants Helm, Gomes, Cummings, and

Majewski invaded his privacy by publicly disclosing his confidential

educational records, including information about his criminal conviction

and the Title IX investigation, to students, faculty, and staff both internally

within UMass Dartmouth and externally. However, the Title IX

investigation, led by employees of UMass Dartmouth and thus by definition

involving other individuals, cannot itself be a fact about Harnois of an

intimate or highly personal nature. Similarly, Harnois’s prior criminal

conviction is not highly personal by dint of the fact that a criminal conviction

is a matter of public record. Accordingly, Harnois has not alleged facts

sufficient to state a claim for invasion of privacy.

Count XII: Malicious prosecution and abuse of process as to

Gomes, Helm, Cummings, and Majewski. “To make out a claim for

malicious prosecution, a plaintiff must prove: ‘(1) the institution of criminal

process against the plaintiff with malice; and (2) without probable cause; and

(3) the termination of the criminal proceeding in favor of the plaintiff.’”

Gutierrez v. Massachusetts Bay Transp. Auth., 437 Mass. 396, 405 (2002),

quoting J.R. Nolan & L.J. Sartorio, Tort Law § 77, at 88 (2d ed. 1989).

Separately, “[t]he tort of malicious abuse of process consists in [sic] the use

of lawful process primarily for a purpose for which it is not designed.” Id.

“The elements of an abuse of process claim are that: ‘(1) ‘process’ was used;

(2) for an ulterior or illegitimate purpose; (3) resulting in damage.’”

Gutierrez, 437 Mass. at 407, quoting Datacomm Interface, Inc. v.

Computerworld, Inc., 396 Mass. 760, 775-776 (1986). In Massachusetts,

“cases recognizing abuse of process claims have been limited to three types

of process: writs of attachment, the process used to institute a civil action,

and the process related to bringing criminal charges.” The Alpha Co., Inc. v.

Kilduff, 72 Mass. App. Ct. 104, 115 (2008); see also Scholz v. Goudreau, 901

F.3d 37, 49 (1st Cir. 2018) (citing to Massachusetts case law as “limiting

abuse of process claims to writs of attachment, instituting a civil action, and

the bringing of criminal charges”).

Harnois alleges that defendants’ initiation and execution of the Title IX

investigation constitutes malicious prosecution and abuse of process.

Because the Title IX investigation was not a criminal prosecution, a writ of

attachment, or civil action in the courts – nor did the action involve

administrative proceedings before an administrative law judge, see Cignetti

v. Healy, 967 F. Supp. 10, 18 (D. Mass. 1997) – Harnois’s claim fails as a

matter of law.

Count XV: Promissory estoppel as to defendants Buck and

Webster. “When a promise is enforceable in whole or in part by virtue of

reliance, it is a ‘contract,’ and it is enforceable pursuant to a ‘traditional

contract theory’ antedating the modern doctrine of consideration.” Rhode

Island Hosp. Tr. Nat. Bank v. Varadian, 419 Mass. 841, 849 (1995).

“Circumstances that may give rise to an estoppel are (1) a representation

intended to induce reliance on the part of a person to whom the

representation is made; (2) an act or omission by that person in reasonable

reliance on the representation; and (3) detriment as a consequence of the act

or omission.” Bongaards v. Millen, 440 Mass. 10, 15 (2003). “‘[A] promise

made with an understood intention that it is not to be legally binding, but

only expressive of a present intention, is not a contract.’” Rhode Island

Hosp. Tr. Nat. Bank, 419 Mass. at 850, quoting Kuzmeskus v. Pickup Motor

Co., 330 Mass. 490, 493 (1953).

Here, Harnois alleges promissory estoppel as to defendants Buck and

Webster. Harnois alleges that Buck (1) clearly and unambiguously promised

Harnois that he would serve as Harnois’s sponsor and continue to provide

him with guidance and direction while Harnois pursued his academic

interests, and that Webster “made a clear and unambiguous promise that the

details of [Harnois’s] disclosure statement would not be released, and

neither the students, staff, nor faculty at SMAST would learn of the contents

or nature of the subject matter included in his disclosure statement.” TAC ¶

480. Harnois asserts that in reliance on these promises, he (2) “sacrificed all

other options and chose to apply his VA scholarship and matriculate at

[UMass Dartmouth]. But for the promises [Harnois] would have chosen an

alternative educational program.” Id. ¶ 482. According to Harnois, Buck

broke his promise “when he abruptly terminated all communication with

[Harnois] and ceased any action in assisting [Harnois] pursue his career,” id.

¶ 483, and “Webster breached his promise when he either shared educational

information [pertaining to Harnois], or allowed Cummings to disseminate

information without acting to protect [Harnois].” Id. ¶ 484. Harnois claims

that as a result of defendants’ broken promises, he suffered damages to his

career prospects, earning potential, and reputation, as well as the cost of

attorneys’ fees. The court views Buck’s promise to Harnois as a classic

statement of present intention, made in light of an implicit condition that

was not within Buck’s control: namely, that Harnois remain a student in

good standing, and no reasonable jury could think differently. Accordingly,

the court will dismiss the claim against Buck under this Count. On the other

hand, whether Harnois reasonably relied on Webster’s apparent authority to

bind UMass Dartmouth with respect to disclosure of his criminal conviction

is an issue of fact not to be decided on a motion to dismiss.

Count XVI: Intentional infliction of emotional distress as to

defendants Majewski, Gomes, Cummings, Professor Doe, Buck,

Fioravanti, and Helm.

To sustain a claim of intentional infliction of emotional distress,

a plaintiff must show (1) that the defendant intended to cause, or

should have known that his conduct would cause, emotional

distress; (2) that the defendant’s conduct was extreme and

outrageous; (3) that the defendant’s conduct caused the

plaintiff’s distress; and (4) that the plaintiff suffered severe

distress. To be considered extreme and outrageous, the

defendant’s conduct must be “beyond all [possible] bounds of

decency and . . . utterly intolerable in a civilized community.”

Sena v. Commonwealth, 417 Mass. 250, 263-264 (1994), quoting Agis v.

Howard Johnson Co., 371 Mass. 140, 145 (1976) (internal citation omitted).

While Harnois certainly alleges conduct that caused him distress, he does not

allege conduct that was “beyond all possible bounds of decency” and “utterly

intolerable in a civilized society.” Accordingly, Count XVI will be dismissed.

Count XVIII: Intentional interference with contractual

relations with the VA as to defendants Cummings, Buck, Gomes,

Helm, and Majewski. Harnois asserts that defendants Cummings, Buck,

Gomes, Helm, and Majewski tortuously interfered with his contractual

relations with the VA. Under Massachusetts law:

To prevail on a claim of tortious interference with a contract, a

plaintiff must establish that “(1) he had a contract with a third

party; (2) the defendant knowingly induced the third party to

break that contract; (3) the defendant’s interference, in addition

to being intentional, was improper in motive or means; and (4)

the plaintiff was harmed by the defendant’s actions.”

Psy-Ed Corp. v. Klein, 459 Mass. 697, 715-716 (2011), quoting G.S. Enters.,

Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 272 (1991).

Here, Harnois asserts that he had a valid contract with VA, under

which the VA agreed to fund five years of graduate education and Harnois

agreed to comply with school procedures and maintain a B minus average.

Harnois alleges that defendants’ actions induced his inability to perform the

contract, and compelled Harnois to seek a leave of absence that caused him

to lose benefits associated with his VA contract. However, Harnois has not

pled facts to support an inference that defendants knowingly induced the VA

to break a contract with Harnois. Accordingly, the court will dismiss Count

XVIII.

Count XIX: Civil conspiracy as to defendants Cummings,

Professor Doe, Buck, Gomes, Fioravanti, Helm, and Majewski.

Massachusetts law recognizes two kinds of civil conspiracy claims. Kurker

v. Hill, 44 Mass. App. Ct. 184, 188 (1998). Harnois alleges the type of civil

conspiracy where “defendants, acting in unison, had some peculiar power of

coercion over plaintiff that they would not have had if they had been acting

independently.”10 Aetna Cas. Sur. Co. v. P & B Autobody, 43 F.3d 1546, 1563

(1st Cir. 1994), quoting Jurgens v. Abraham, 616 F. Supp. 1381, 1386 (D.

Mass. 1985). “To establish a civil conspiracy, a plaintiff must demonstrate

that ‘a combination of persons [acted] pursuant to an agreement to injure

the plaintiff.’” Gutierrez, 437 Mass. at 415, quoting J.R. Nolan & L.J. Sartorio

10 The other type of civil conspiracy under Massachusetts law, which

Harnois does not plead, “derives from ‘concerted action,’ whereby liability is

imposed on one individual for the tort of another.” Kurker v. Hill, 44 Mass.

App. Ct. 184, 188 (1998), citing Aetna Cas. Sur. Co. v. P & B Autobody, 43

F.3d 1546, 1564 (1st Cir. 1994).

at 136. “Civil conspiracy is a very limited cause of action in Massachusetts.”

Jurgens, 616 F. Supp. at 1386.

Here, Harnois alleges that defendants’ actions gave rise to

“combination pressure” that was “different in kind from anything that could

have been accomplished by separate individuals.” TAC ¶ 511. However,

Harnois does not plead facts sufficient to infer that defendants agreed to act

together with the express purpose of injuring him. Accordingly, Count XIX

will be dismissed.

ORDER

For the foregoing reasons, defendants’ Rule 12(b)(6) motion is

DENIED with respect to Counts I, II, III (procedural due process claims

against Cummings, Majewski, Gomes, and Helm only), IV, VII (against

Cummings and Majewski only), VI (against Cummings, Majewski, and

Professor Doe only), Count VIII (against Cummings only), and XV (Webster

only), and otherwise is ALLOWED.

SO ORDERED.

/s/ Richard G. Stearns _____

UNITED STATES DISTRICT JUDGE