DOROSHIN v. FRY

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANDREI DOROSHIN, :

: CIVIL ACTION

Plaintiff, :

v. :

:

DREXEL UNIVERSITY, et al., : NO. 22-5158

:

Defendants. :

OPINION MEMORANDUM

Perez, J. September 30, 2024

This matter arises out of disciplinary action taken by Defendant Drexel University

(“Defendant” or “Drexel”) against former student Andrei Doroshin (“Plaintiff”) following public

controversy involving the vaccine distribution nonprofit he founded during the COVID-19

pandemic. Plaintiff initiated this action in the Eastern District of Pennsylvania on December 27,

2022, suing Drexel as well as former Drexel President John Fry and Dean Norma Bouchard. The

matter is presently before the Court on Defendants’ motion to dismiss all the claims presented in

Plaintiff’s Amended Complaint, which include the following counts: (I) violation of the Family

Educational Rights and Privacy Act (“FERPA”); (II) violation of Plaintiff’s constitutional rights

under Amendments V and XIV; (III) breach of contract; (IV) breach of covenant of good faith and

fair dealing; (V) injunctive relief; (VI) violation of 42 U.S.C. § 1981; (VII) defamation; (VIII)

intentional infliction of emotional distress; and (IX) negligent infliction of emotional distress.

Plaintiff fails to address Counts I and II in his response brief and this Court will therefore consider

those arguments waived. For the reasons that follow, this Court will grant Defendants’ motion and

dismiss this matter in its entirety.

I. FACTUAL BACKGROUND

In 2020, while Plaintiff was a graduate student at Drexel, he founded a 501(c)(3) nonprofit

startup called Philly Fighting Covid (“PFC”). Plaintiff describes PFC as an “organization that ran

testing centers in Philadelphia during the height of the COVID-19 pandemic.” ECF 10 ¶ 2.

Between August of 2020 and January 2021 Plaintiff planned numerous meetings and events to

establish a plan to distribute vaccines in Philadelphia. Id. ¶¶ 3–10. During this time, Plaintiff and

PFC met with the vaccine team at the Philadelphia Department of Public Health and were invited

to the Vaccine Advisory Committee. Id. ¶¶ 3–4. PFC also presented a vaccine plan to the City of

Philadelphia where PFC worked with Carolina Johnson, Philadelphia’s Deputy Health

Commissioner, to submit a budget proposal for planning a vaccination event. Id. ¶¶ 5-6.

Though Plaintiff’s nonprofit was not expressly affiliated with Drexel, the school was

initially supportive of Plaintiff’s initiative. Id. ¶ 2. As Plaintiff recounts, “[o]n January 14, 2021,

Plaintiff was approached by the University to write a positive piece about Plaintiff and Philly

Fighting Covid. They also expressed interest in wanting to use Plaintiff as their “poster child” for

Defendant’s “Ambition Can’t Wait” Campaign.” Id. Additionally, then-President of Drexel,

Defendant John Fry, and the Dean of Drexel, Defendant Norma Bouchard, sent multiple

congratulatory emails to Plaintiff expressing support for PFC. Id. ¶ 9, Ex. A.

Despite its early success, PFC soon came under media scrutiny for mishandling vaccine

distribution. Local news outlets began reporting that PFC failed to release any of the promised

covid vaccines. See ECF 10 at 2. In response to Defendant’s motion to dismiss, Plaintiff fails to

address the downfall of PFC, noting only that Drexel cancelled all scheduled interviews with

Plaintiff “ostensibly citing negative news coverage.” ECF 11 at 3. However, this Court recognizes

that the controversy surrounding PFC’s mismanagement is a matter of public record and thus

properly considers the subject.1 This Court does not accept as true any facts outside of those

plausibly and sufficiently alleged in the Amended Complaint, the attached exhibits, and the agreed

upon terms that are found in the consent decree between the Pennsylvania Attorney General and

Plaintiff, discussed infra. The Court does not make any findings or conclusions regarding the legal

and media investigations of PFC, but rather, merely takes note of the existence of a public

controversy surrounding it. The Court likewise does not weigh in on the validity of any of the

allegations or findings made by Defendants during the course of the disciplinary process. The

Court also properly considers the exhibits Plaintiff himself attached to the Amended Complaint,

including the correspondence sent out to Drexel’s student body regarding PFC’s mismanagement,

which help to shed light on the scope and nature of the media scrutiny and reasons behind PFC’s

dissolution.

While Plaintiff appears to refute the legitimacy of any and all media scrutiny and law

enforcement investigations launched in the wake of PFC’s collapse, the Amended Complaint does

concede that PFC was investigated by “numerous government agencies, including the Federal

Bureau Investigation, the Pennsylvania Attorney General’s office, the Pennsylvania Department

of Health, and several other such organizations.” ECF 9 ¶ 17. On February 11, 2022, the

Pennsylvania Attorney General filed a complaint against Plaintiff and PFC, alleging that PFC had

“abandoned testing operations without notice or cause” and that Plaintiff had “commingled funds

1 “To decide a motion to dismiss, courts generally consider only the allegations contained in the complaint, exhibits

attached to the complaint and matters of public record.” Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998

F.2d 1192, 1196 (3d Cir. 1993). Courts have defined a public record, for purposes of what properly may be

considered on a motion to dismiss, to include criminal case dispositions, see Collins v. County of Kendall, Ill., 807

F.2d 95, 99 n. 6 (7th Cir.1986), cert. denied, 483 U.S. 1005, 107 (1987), letter decisions of government agencies, see

Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C.Cir.1979), and published reports of administrative bodies, see

Mack v. South Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir.1986).

from the two entities and regularly transferred assets from the two entities to his own personal

bank account.” ECF 10 at 3. That same day, the Attorney General also announced a consent decree

signed by Plaintiff, which would dissolve PFC, require Plaintiff to pay $30,000 in restitution, and

prohibit Plaintiff from governing, controlling, administering, or possessing charitable assets or

soliciting charitable donations in Pennsylvania. On February 17, 2022, the consent decree was

adopted as an order by the Commonwealth Court of Pennsylvania. See Com. v. Philly Fighting

COVID Inc. et al., No. 59 MD 2022.

Following the news coverage and public condemnation of PFC, Drexel took steps to

distance itself from Plaintiff and PFC. ECF 9 ¶ 12. Drexel’s news organizations cancelled

scheduled interviews with Plaintiff. Id. ¶ 11. Drexel also sent an email to over 180,000 recipients

comprised of the student body and the alumni association indicating that Drexel had no affiliation

to PFC. Id. ¶ 12, Ex. G. This email specified that PFC “is a completely separate organization from

Drexel University, and the University had no involvement in the formation or management of the

group.” Id. Plaintiff was subsequently placed on an interim suspension from Drexel on February

2, 2021. Id. ¶ 13; Ex. H. Plaintiff was advised the student conduct process would commence

immediately unless he requested otherwise and that he had the right to request an appearance

before the Dean of Student Life by February 7, 2021. Id.

Following Plaintiff’s suspension, on February 3, 2024, President Fry wrote to current and

former students of Drexel:

“[a]ll of us are deeply disappointed by the news about Philly Fighting COVID,

founded and led by a Drexel graduate student, and its controversial collapse. We

are very concerned about the potential for harm to the Philadelphia community by

the abrupt withdrawal of badly needed coronavirus testing. We are frustrated, as

well, by the setback of the essential work of building trust in the COVID-19 vaccine

– particularly for the Black and brown communities long wary of the medical

establishment.”

Id. Ex. I. On February 5, 2021, Defendant Dean Bouchard sent an email to the same group,

stating:

“As multiple investigations get underway concerning the Philly Fighting COVID

situation, I want you to know that the College recognizes the harm that occurred as

a result of the group’s actions. By abandoning testing without warning and failing

to properly administer vaccines, PFC jeopardized the health and well being of the

communities it had pledged to help. The members of these communities

understandably feel angry, hurt and betrayed.”

Id. Ex. J. Defendant ultimately charged Plaintiff with violating the Drexel University Code

of Conduct’s provisions concerning “Theft” and “Law and Policy Compliance.” Id. ¶ 16;

Ex. K. Plaintiff failed to appear for either of the two “Pre-Hearings” scheduled for February

2 and February 8, 2021. Id. Ex. K. Plaintiff was advised that his absence “may result in a

decision being rendered in [his] absence as stated in the Code of Conduct.” Id. He was

provided an overview of the conduct procedure and the rights he was afforded. Id.

Plaintiff alleges that Drexel “refused to delay” the disciplinary hearing after his

lawyer requested a continuance. Id. ¶ 19. However, Plaintiff fails to present any timeline,

dates, or correspondence corroborating it and the weight of the evidence he himself

presents contradict this assertion. Defendants explain that Plaintiff rejected the option to

delay the proceedings prior to being officially expelled from Drexel on March 1, 2021.

ECF 10 at 11. Indeed, the exhibits attached to his Amended Complaint indicate that Drexel

advised him several times of his right to request a continuance of the proceedings. Plaintiff

produced nothing that indicates any such request was ever formally made or denied.

Plaintiff also alleges that Defendant failed to consider exculpatory evidence submitted the

conduct board following his expulsion. Id. ¶ 24.

I. LEGAL STANDARD

To survive a Rule 12(b)(6) motion to dismiss, Plaintiff’s “complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face’.” Iqbal, 556

U.S. at 678 (citations omitted). “To decide a motion to dismiss, courts generally consider only the

allegations contained in the complaint, exhibits attached to the complaint and matters of public

record.” Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.

1993); See 5A C. Wright & A. Miller, Federal Practice and Procedure § 1357, at 299 (2d

ed.1990). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Id. “Therefore . . . district courts should conduct a two-part analysis.”

Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citations omitted) (citing Iqbal,

556 U.S. at 679).

“First, the . . . Court must accept all of the complaint’s well-pleaded facts as true, but may

disregard any legal conclusions.” Id. Importantly, allegations are only presumed to be true when

there is “sufficient ‘factual matter’ to render them ‘plausible on [their] face.’” Schuchardt v.

President of the United States, 839 F.3d 336, 347 (3d Cir. 2016) (citing Iqbal, 556 U.S. at 679).

Broad, conclusory, and nonspecific allegations—including those against multiple Defendants—do

not enjoy a presumption of truth. Id.; Shujauddin v. Berger Bldg. Prods., Inc., No. 19-876, 2019

U.S. Dist. LEXIS 231997, at *2 n.2 (E.D. Pa. June 18, 2019) (citing Iqbal, 556 U.S. at 679)

(“Generalized pleadings ‘are not entitled to the assumption of truth.’”); see also Griffith-Johnson

v. Promedica Senior Care of Phila., PA, LLC, No. 23-1633, 2023 U.S. Dist. LEXIS 161013, at

*11 (E.D. Pa. Sep. 12, 2023) (citations omitted) (“‘[A] plaintiff must differentiate between

defendants,’ and ‘[a]n allegation against multiple defendants that is bereft of specific wrongdoing

by those proposed defendants is insufficient to state a claim.’”).

“Second, a District Court must then determine whether the facts alleged in the complaint .

. . show that the plaintiff has a ‘plausible claim for relief.’” Fowler, 578 F.3d at 210-11. However,

“asking for plausible grounds . . . simply calls for enough fact to raise a reasonable expectation

that discovery will reveal [further evidence].” Twombly, 550 U.S. at 556. “In other words, a

complaint must do more than allege the plaintiff's entitlement to relief.” Fowler, 578 F.3d at 210-

11 (citations omitted).

II. DISCUSSION

1. Plaintiff has no Private Right of Action Under FERPA

Count I of Plaintiff’s Complaint contends that Defendant violated FERPA’s privacy

protections by (1) releasing Plaintiff’s educational record to over 180,000 members of Drexel’s

student body and alumni without his consent; (2) “refus[ing] to amend its records despite receiving

information that contracted[sic] its evidence-free conclusions and accusations;” (3) denying him

the right “to challenge the continent[sic] of his records ECF 9 ¶ 44-48. However, Defendants

correctly argue that FERPA’s privacy provisions do not give rise to a private right of action for an

individual to sue a school for privacy violations. Gonzaga Univ. v. Doe, 536 U.S. 273, 287–89

(2002). Moreover, Plaintiff appears to have abandoned the FERPA claim as his brief fails to make

any mention or argument in response. Plaintiff had “ample opportunity to make this argument in

response to defendants' motion to dismiss and failed to do so.” Dreibelbis v. Scholton, 274 Fed.

Appx. 183, 185 (3rd Cir. 2008). Because Plaintiff has no individual right to sue under FERPA and

because he has waived the argument, this Court will dismiss Count I of the Complaint.

2. Plaintiff Cannot Bring a Constitutional Action Against a Private University

Count II of the Amended Complaint alleges that Drexel violated Plaintiff’s Fifth and

Fourteenth Amendments to the United States Constitution. Plaintiff claims that his constitutional

rights were abridged because the Defendants refused to delay the administration of a disciplinary

hearing. Id. ¶¶ 60, 61. Because he was not present at the pre-hearings or adjudicatory hearing,

Plaintiff claims his silence was used against him, in violation of his Fifth Amendment right. Id. ¶

60. However, as Defendant correctly points out, it cannot violate the federal constitution because

it is not a state actor. Moreover, Plaintiff fails to plead any facts to suggest that Defendant acted

under the color of law or to in any way plausibly state that Drexel is anything other than a private

institution. Further, this Court need not weigh in on the merits of these claims because Plaintiff

also abandoned any argument on Count II in his response. His failure to respond constitutes a

waiver of the claim and therefore Count II will also be dismissed.

III. Breach of Contract

Plaintiff asserts that Drexel’s student handbook is a legally binding contract that Defendant

breached by expelling Plaintiff and by failing to provide “a discrimination-free and defamation-

free environment.” ECF 9 ¶¶ 73, 78. Plaintiff also argues Defendant breached its contractual

obligation to fairly and properly investigate allegations of student misconduct. Id. ¶ 81. Plaintiff

alleges Defendant “committed numerous investigative and procedural missteps, failed to engage

in impartial fact finding, failed to fairly weigh evidence presented by Plaintiff, and harbored an

overall institutional bias against Plaintiff as a result of fear of public relations negativity during his

student conduct hearing, and prior thereto, all of which led to the erroneous decision to expel

Plaintiff, despite their knowledge of his invocation of his Fifth Amendment privileges and in

violation of the Fourteenth Amendment.” Id. ¶ 79. Plaintiff refutes that Drexel complied with it’s

the provision requiring it to “conduct an initial inquiry to gather information about reports of

student concerns or alleged misconduct.” Id. ¶ 82. Due to these missteps, Plaintiff claims that

Defendants “deprived Plaintiff of his contractual rights to due process and equal protection through

the improper administration of the student conduct hearing process in violation of Drexel’s

guidelines and regulations.” Id. ¶ 86.

Defendants respond that a breach of contract claim against a university by a student must

relate to a specific promise that the school did not honor. Defendants urge that what Plaintiff claims

to be a contractual obligation to “discrimination-free and defamation-free environment” is actually

“a general non-discrimination policy.” ECF 10 at 14. Defendants claim that Plaintiff’s proffered

promise is too general to be considered a contractual promise. Id. Defendants further contend that

concerns over due process and fairness are not relevant in disciplinary proceedings for private

schools. Id. at 14. Defendants state that Plaintiff “fails to identify any specific procedural safeguard

in Drexel’s policy that was not provided” and that Plaintiff does not “identify any missteps” that

violate Drexel’s policies. Id. at 15. Additionally, as a private school, Defendants state that it is not

a breach of contract if they follow their own disciplinary procedures. Id. at 14.

1. Non-Discrimination Policy

A university’s generalized anti-harassment or non-discrimination statement does not

constitute a contractual term that can be violated. Vurimindi v. Fuqua Sch. of Bus., 435 F. App'x

129, 132-33 (3d Cir. 2011). To be a breach of contract, the “allegations must relate to a specific

and identifiable promise that the school failed to honor” Id. at 133. In Vuriminidi, the plaintiff

alleged a breach of contract because the defendant university violated its “mission statement, its

diversity statement, and its general statements against harassment.” Id. at 132. There the court held

that this general policy does “no more than present [the university’s] view that harassment is

unacceptable because it is inconsistent with its stated commitment to excellence.” Id. at 133; See

also David v. Neumann Univ., 187 F. Supp. 3d 554, 561 (E.D. Pa. 2016) (“[A] general anti-

harassment and anti-retaliation policy that does no more than present the University's view that

harassment is unacceptable in University-related activities.”). Such a statement is not a specific

promise that can be violated. Id. at 133-34. Rather, it is just a position that the university has on

the subject. Id.

Plaintiff’s assertion that Defendant was contractually obligated to provide “a

discrimination-free and defamation-free environment” fails to state a claim upon which relief can

be granted. Here, the non-discrimination policy states: “The University is committed to

establishing and maintaining an environment free from all forms of Discrimination and

Harassment.” ECF 10 at 16. Per Vuriminidi, these general anti-discriminatory statements do not

constitute a specific promise that can be violated. Vurimindi, 435 F. App'x 129, 133. Thus, Plaintiff

cannot claim a breach of contract based on Defendant’s anti-discriminatory policy.

2. Disciplinary Hearings

“[T]he relationship between a private educational institution and an enrolled student is

contractual in nature.” Harris v. Saint Joseph's Univ., No. 13-3937, 2014 WL 1910242, 2 (E.D.

Pa. May 13, 2014) (quoting Swartley v. Hoffner, 734 A.2d 915 (Pa. Super. Ct. 1999)). Due to this

contractual nature, “students who are being disciplined are entitled only to those procedural

safeguards which the school specifically provides.” Swartley, 734 A.2d 915, 919. Philadelphia

courts have held that “breach of contract actions brought by a party against a private college or

learning institution should be treated as the Court would treat any other agreement between two

private parties. Therefore, a party’s attempts to invoke due process concerns and questions of

fundamental fairness are misplaced.” Lee v. Seton Hill Univ., No. 2:16CV1581, 2017 WL

7513319, *4 (W.D. Pa. Aug. 25, 2017) (citing Reardon v. Allegheny Coll., 926 A.2d 477, 480 &

n.2 (Pa. Super. Ct. 2007). Moreover, the court in Reardon, states that as long as the university

follows its procedures, they have fulfilled their obligations. Reardon, 926 A.2d 477, 482.

Here, the due process violation allegations do not raise a valid breach of contract claim.

Plaintiff’s overly generalized claims include that Defendants “failed to “engage in impartial fact

finding,” “fairly weigh evidence,” and “committed numerous investigative and procedural

missteps.” However, these claims relate directly to the disciplinary actions taken by the Defendant

and do not identify any particular mistakes, omissions, or oversights made by the Defendant. Since

Plaintiff fails to point to an identifiable promise that Defendants failed to honor this claim will be

dismissed. Moreover, even if there was an identifiable promise regarding the disciplinary actions

taken by the Defendant, Plaintiff has not sufficiently pled that Defendants failed to follow their

own disciplinary policies provided in their handbook. Plaintiff Therefore, Count III is dismissed.

IV. Breach of Covenant of Good Faith and Fair Dealing

Plaintiff also brings a claim for breach of the duty of good faith and fair dealing. However,

“[t]he failure to identify any contractual obligation also dooms the claim for breach of the duty of

good faith and fair dealing.” Voltarelli v. Immaculata Univ., C.A. No. 21- 1068, 2021 U.S. Dist.

LEXIS 234641, *4 (E.D. Pa. Dec. 8, 2021); David v. Neumann Univ, 187 F. Supp. 3d 554, 561

(E.D. Pa.2016) (citing Engstrom v. John Nuveen & Co., 668 F. Supp. 953, 958 (E.D. Pa. 1987)).

Although Pennsylvania law “imposes on each party a duty of good faith and fair dealing in its

performance and ... enforcement” of a contract, “this obligation of good faith is tied specifically to

and is not separate from the [express] duties a contract imposes on the parties.” Id. at 560–

61 (quoting Kaplan v. Cablevision of PA, Inc., 671 A.2d 716, 722 (Pa. Super. Ct. 1996)). In short,

because Plaintiff failed to sufficiently allege a breach of contract, Count IV must also be dismissed.

V. Injunctive Relief

Because this Court will find that Plaintiff’s Amended Complaint has not sufficiently plead

a single cause of action entitling him to relief, it naturally follows that any requested injunction

will also be denied.

VI. Tortious Interference with Contract

Plaintiff brings claims of tortious interference against the individually named Defendants,

President John Fry and Dean Norma Bouchard alleging they “intentionally and maliciously

interfered with plaintiff’s contractual relationship with Drexel.” ECF 9 ¶ 108. “Under

Pennsylvania law, to prevail on a claim for tortious interference . . . , a party must prove: (1) the

existence of a contractual or prospective contractual or economic relationship between the plaintiff

and a third party; (2) purposeful action by the defendant, specifically intended to harm an existing

relationship or intended to prevent a prospective relation from occurring; (3) the absence of

privilege or justification on the part of the defendant; (4) legal damage to the plaintiff as a result

of the defendant's conduct; and (5) for prospective contracts, a reasonable likelihood that the

relationship would have occurred but for the defendant's interference.” Acumed LLC v. Advanced

Surgical Servs., Inc., 561 F.3d 199 (3d Cir. 2009) (citing Brokerage Concepts, Inc. v. U.S.

Healthcare, Inc., 140 F.3d 494 (3d Cir. 1998)).

To satisfy a claim for tortious interference, “a plaintiff must show that it is reasonably

probable that, but for the wrongful acts of the defendant, the plaintiff would have had contractual

relationship with a third party.” BP Env't Servs., Inc. v. Republic Servs., Inc., 946 F. Supp. 2d 402,

412 (E.D. Pa. 2013). Thus, the “right of recovery under the theory of tortious interference only

exists if there is a contractual relationship between the plaintiff and a party other than the

defendants.” Ruder v. Pequea Valley Sch. Dist., 790 F. Supp. 2d 377, 394 (E.D. Pa. 2011) (citing

Wagner v. Tuscarora Sch. Dist., No. 1:04-CV-1133, 2006 WL 167731, *13 (M.D. Pa. Jan. 20,

2006), aff'd, 225 F. App'x 68 (3d Cir. 2007)); Nix v. Temple Univ. of Com. Sys. of Higher Educ.,

408 Pa. Super. 369 (1991). Accordingly, “a corporation cannot tortiously interfere with a contract

to which it is a party.” Id. at 395 (citations omitted). Additionally, “since a corporation acts through

its agents and officers, such agents and officers cannot be considered third parties when they are

acting in their official capacities.” Id. (citations omitted).

Here, Plaintiff has failed to establish a third-party contract that the Defendants interfered

with. Defendants are employees of Defendant. Thus, as explained by Ruder, President Fry and

Dean Bouchard are agents and employees of Drexel. Ruder, 790 F. Supp. 2d 394. Additionally,

Plaintiff’s claim that the Defendants tortiously interfered with their own contract should be

dismissed. As explained in Ruder, agents of a corporation are not third parties. Id. at 395. Ruder

also explains that a corporation “cannot tortiously interfere with a contract to which it is a party.”

Id. Here, Drexel is party to the contract that Plaintiff claims Defendant’s interfered with. Since it

is not possible for Drexel to tortiously interfere with a contract that they are party to, this claim

will be dismissed.

VII. Violations of 42 U.S.C. § 1981

Plaintiff claims Defendants engaged in discriminatory conduct in violation of 42 U.S.C. §

1981. ECF 9 ¶ 113. Plaintiff appears to note that his status as a first generation Russian-American

and a child of immigrants designates him as a member of a protected class. Id. ¶ 116. At no point

does Plaintiff plead with any particularity that Defendants discriminated him on the basis of his

national origin, and this Court is not even clear that was the intention of this claim. This section of

Plaintiff’s Amended Complaint is particularly challenging to comprehend, but from what this

Court can gather, Plaintiff is arguing that Defendants discriminated against him on the basis of

race by (1) “discriminatory enforcement” of the Code of Conduct; and (2) in its accusations against

him regarding his own racist conduct against African Americans. Plaintiff cites the alert sent out

by Drexel regarding the disparate health impacts the pandemic was having on members of black

and brown communities. He contends that the correspondence amounted to an accusation that PFC

“act[ed] deliberately against the African American population” Id. ¶ 116.

To state a claim for discrimination under § 1981 “a plaintiff must first establish a prima

facie case of discrimination by showing: 1) membership in a protected class; 2) qualification to

hold the position; 3) an adverse employment action under 4) “circumstances that could give rise

to an inference of discrimination.’” Summers v. Children's Hosp. of Philadelphia, No. CV 21-

3479, 2022 WL 4120283 (E.D. Pa. Sept. 9, 2022), aff'd, No. 22-2892, 2024 WL 243320 (3d Cir.

Jan. 23, 2024) (quoting Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008)). “To sustain a § 1981

discrimination claim, a plaintiff must show that the defendant intentionally discriminated against

him or her because of race in the making, performance, enforcement, or termination of a contract

or for such reason denied him or her the benefits, terms, or conditions of the contractual

relationship.” Saunders v. Se. Home Health Servs. of PA, LLC, No. 19-CV-03458, 2021 WL

1210006. *7 (E.D. Pa. Mar. 31, 2021) (citations omitted). Here, “a plaintiff must initially plead

and ultimately prove that, but for race, it would not have suffered the loss of a legally protected

right.” Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1019 (2020). If

this is not proven, the plaintiff will not prevail under § 1981. Id.

Additionally, Pennsylvania courts have held that conduct that is perceived as racist is not

actionable under federal discrimination laws. See DeCarolis v. Presbyterian Med. Ctr. of Univ. of

Pennsylvania Health Sys., 554 F. App'x 100, 103 (3d Cir. 2014). In DeCarolis, the court explained

that a statement that mentioned race did not demonstrate discrimination. Id. Thus, “[b]eing falsely

perceived as racist is not a protected characteristic under our anti-discrimination laws.” Bank v.

Cmty. Coll. of Philadelphia, No. CV 22-293, 2022 WL 2905243, *5 (E.D. Pa. July 22, 2022).

It appears that the substance of Plaintiff’s argument here is that Defendants allegations of

racism against him are what motivated the school to take disciplinary action. Defendants argue

that “[a]t most, he alleges that certain statements by Drexel suggest that the actions of Philly

Fighting Covid may have had a negative impact on ‘black and brown communities.’ These

observations do not suggest that Doroshin’s actions were motivated by racial animus; but even if

they did, allegations of racism are not the same as discrimination.” ECF 10 at 19. In reviewing the

emails sent by President Fry and Dean Bouchard, this Court concludes that the emails do not

accuse Plaintiff or PFC of racist conduct, but merely highlighted the well-documented and

observed pattern of disparity in health outcomes in black and brown communities and the history

of distrust with the medical establishment. There is ample empirical evidence that marginalized

communities experienced a disproportionate impact during the pandemic. While these emails do

not not indicate any racist motivations on Plaintiff’s part, even if they did, the discrimination claim

would still fail as racist conduct is not actionable under anti-discrimination laws. Plaintiff has

failed to show that an adverse action was taken against them because of their membership in a

protected class. Plaintiff fails to plead with any particularity that Defendants expelled him because

of his status as a Russian national. There is simply no nexus pled that even suggests a relationship

between his national origin and the disciplinary action taken against him. Therefore, this claim

will be dismissed.

VIII. Defamation

Plaintiff claims that Defendants published defamatory statements regarding Plaintiff in the

university-wide emails sent by President Fry and Dean Bouchard on February 3, 2021 and

February 5, 2021. ECF 9 ¶ 118. Plaintiff claims that Defendants “stated that Philly Fighting Covid

was irresponsible, selfish, and did not do anything to address the ‘national and local crisis’ caused

by COVID-19.” Id. As Defendants correctly argue, Plaintiff’s defamation claims are barred by the

one-year statute of limitations. This Court rejects any attempt by Plaintiff to argue that the clock

should not begin until March of 2022 when he was officially expelled from Drexel.

“The statute of limitations [in the Third Circuit for defamation claims is one year from the

state of publication.” In re Phila. Newspapers, LLC, 690 F.3d 161, 174 (3d Cir. 2012) (quoting 42

Pa. C.S.A. § 5523). Additionally, Pennsylvania has adopted a “single publication rule.”

McClenaghan v. Turi, 567 Fed. Appx. 150, 153 (3d Cir. 2014). This rule was established to prevent

“action[s that] could be filed any time a defamatory article was read, no matter the time lag between

the actual printing of the article and the reading of the article by a third party.” Id. (quoting Graham

v. Today’s Spirit, 468 A.2d 454, 457 (Pa. 1983)). Accordingly, the statute of limitations for

defamation claims “runs from the date of publication.” Oldroyd v. Assocs. Consumer Disc. Co./PA,

863 F. Supp. 237 (E.D. Pa. 1994). The analysis here is straight-forward. Defendants statements

were published in February of 2021 and Plaintiff did not bring this action under December 2022.

IX. Intentional Infliction of Emotional Distress

Plaintiff alleges that Defendants intentionally inflicted emotional distress upon him by

“putting him through a retaliatory appeal process, and treating him disparately, and unlawfully

expunging[sic] him and depriving him of obtaining his well-earned degree, refusing to amend his

educational records, and give him a formal hearing pursuant to FERPA, and humiliating him and

destroying his reputation, and incurring over $100,000 in tuition and fees, has caused plaintiff to

suffer from serious mental anguish daily.” ECF 9 ¶ 127.

A claim for intentional infliction of emotional distress under Pennsylvania law requires a

plaintiff to allege “that defendants' conduct was (1) extreme and outrageous; (2) intentional or

reckless; and (3) caused severe emotional distress.” Stokley v. Bristol Borough Sch. Dist., No. 13–

3277, 2013 WL 4787297, at *2 (E.D.Pa. Sept.9, 2013) (internal quotation marks omitted). Extreme

and outrageous conduct “does not extend to mere insults, indignities, threats, annoyances, petty

oppressions, or other trivialities.” Hunger v. Grand Cent. Sanitation, 447 Pa.Super. 575, 670 A.2d

173, 177 (Pa.Super.Ct.1996). “Liability has been found only where the conduct has been so

outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency,

and to be regarded as atrocious, and utterly intolerable in a civilized society.” Strickland v. Unit.

of Scranton, 700 A.2d 979, 987 (Pa.Super.Ct.1997) (emphasis omitted). A court must determine,

as a matter of law, whether the conduct alleged is sufficiently outrageous to permit recovery.

Andrews v. City of Philadelphia, 895 F.2d 1469, 1487 (3d Cir.1990).

Plaintiff has failed to allege sufficiently outrageous conduct to state a claim for intentional

infliction of emotional distress. Even if Defendants had in fact violated Drexel’s own policies and

procedures regarding nondiscrimination and or circumvented the proper procedures for

disciplinary action, the conduct Plaintiff alleges in insufficiently severe and egregious to state a

cause of action. See Hoy v. Angelone, 554 Pa. 134, 720 A.2d 745, 754 (Pa.1998) (noting that it is

not enough “that the defendant has acted with intent which is tortious or even criminal”). In Britt

v. Chestnut Hill College, a student was unable to support his IIED claim after a teacher instructed

a student to sexually harass him. 429 Pa. Super. 263, 632 (1993). After plaintiff objected, the

teacher did “everything within his power to sabotage Appellant's reputation and academic career.”

Id. The conduct in Britt, did not meet the threshold of extreme and outrageous. Id. Similarly, in

Stickland an improper termination of an employee was not extreme and outrageous. 700 A.2d 979,

987 (1997). Accordingly, Plaintiff’s claim for IIED will be dismissed.

X. Negligent Infliction of Emotional Distress

This claim fails because Plaintiff’s allegations originate in contract, not tort law. This Court

accepts Defendant’s argument that the gist of the action doctrine forecloses Plaintiff’s negligent

inflection of emotional distress (“NIED”) claim. The gist of the action doctrine prevents plaintiffs

from recasting ordinary breach of contract claims as tort claims. See Hart v. Arnold, 884 A.2d 316,

339 (Pa.Super.Ct.2005). “[T]he important difference between contract and tort actions is that the

latter lie from the breach of duties imposed as a matter of social policy while the former lie for the

breach of duties imposed by mutual consensus.” Redevelopment Auth. v. Int'l Ins. Co., 454

Pa.Super. 374, 685 A.2d 581, 590 (Pa.Super.Ct.1996). The gist of the action is contractual if “the

parties' obligations are defined by the terms of the contracts, and not by the larger social policies

embodied in the law of torts.” Bohler–Uddeholm Am., Inc. v. Ellwood Grp., Inc. ., 247 F.3d 79,

104 (3d Cir.2001) (internal quotation marks omitted). Plaintiff’s NIED claim will therefore be

dismissed.

XI. CONCLUSION

For the foregoing reasons, this Court will grant Defendants motion to dismiss all claims in

Plaintiff’s Amended Complaint.