Russell v. Salve Regina College

OPINION AND ORDER

This case, brought under diversity jurisdiction, 28 U.S.C. § 1332(a), 1 raises a host *394 of intriguing federal and state law questions in an exotic factual context. Briefly put, the plaintiff, Sharon Russell, a citizen and resident of East Hartford, Connecticut, was expelled from Salve Regina College (“Salve” or “College”) because of her unwillingness and/or inability to control an extreme chronic weight problem. She now sues for damages. The defendants include the College and some seven Salve officials. The identity of each individual defendant and the relationship of each to the College is recounted with fidelity in the case caption, see ante, and it would be pleonastic to restate that data anew. The case turns on the scope of the College’s unilateral authority to dismiss a student and on the manner in which the expulsion was effected in this instance.

The plaintiff’s amended complaint contains some eight distinct statements of claim. The defendants have moved for summary judgment, Fed.R.Civ.P. 56(c), as to each and all of Russell’s initiatives. The matter has been plethorically briefed and vigorously argued. The applicable legal standard is by now firmly embedded in federal jurisprudence; in the interests of expedition, the court merely reiterates what it said at an earlier date in Gonsalves v. Alpine Country Club, 563 F.Supp. 1283, 1285 (D.R.I.1983), aff'd, 727 F.2d 27 (1st Cir.1984):

It is well settled that summary judgment can be granted only where there is no genuine issue as to any material fact and where the movant is entitled to judgment as a matter of law. Emery v. Merrimack Valley Wood Products, Inc., 701 F.2d 985, 986 (1st Cir.1983); Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976); United Nuclear Corp. v. Cannon, 553 F.Supp. 1220, 1226 (D.R.I.1982); Milene Music, Inc. v. Gotauco, 551 F.Supp. 1288, 1292 (D.R.I.1982). In determining whether these conditions have been met, the Court must view the record in the light most favorable to the party opposing the motion, Emery v. Merrimack Valley Wood Products, Inc., 701 F.2d at 986; John Sanderson & Co. (WOOL) Pty. Ltd. v. Ludlow Jute Co., 569 F.2d 696, 698 (1st Cir.1978), indulging all inferences favorable to that party. Santoni v. Federal Deposit Insurance Corp., 677 F.2d 174, 177 (1st Cir.1982); O’Neill v. Dell Publishing Co., 630 F.2d 685, 686 (1st Cir.1980).

With this preface, the court proceeds to narrate the undisputed facts, 2 to frame the issues more precisely, and to set forth its findings and conclusions.

I. BACKGROUND

Salve is a religiously affiliated college located in Newport, Rhode Island, administered by the Sisters of Mercy of the Roman Catholic Church. Russell was admitted to the College by early decision in the winter of 1981-82. She began her studies in September 1982. Russell's interest in a nursing career antedated her matriculation: she had applied only to colleges with nursing programs and had expressed her intention to pursue such a course of study both in her original application to Salve and in her admissions interview. She commenced her academic endeavors at the College with the avowed intention of gaining admittance to Salve’s program of nursing education. 3

During her inaugural year at the College, there is rather fragile evidence that Russell sought some treatment for obesity. *395 At various times during that school year, her 5'6" frame recorded weights between 306 and 315 pounds according to data on file at the College’s health services unit. It is plain that, although she achieved no meaningful weight loss during her freshman year, Russell was considerably more successful as a student. Her work in liberal arts courses was adequate and her grades were respectable. Consequently, Russell was admitted to the nursing program, effective at the start of her sophomore year. She was given a copy of the “Nursing Handbook” (Handbook) issued by the College, and clearly understood that the Handbook set out the requirements for successful completion of the degree in nursing.

The fabric of Russell’s aspirations began to unravel in the fall of 1983, when she entered her sophomore year (her first as a nursing student per se). The parties have presented an intricate (and sometimes conflicting) history of the interaction between the plaintiff and her sundry academic supervisors. It would serve no useful purpose at this juncture fully to recapitulate those events, or to attempt to reconcile every conflict. After all, the mechanism of Rule 56 does not require that there be no unresolved questions of fact; it is sufficient if there are no genuine issues remaining as to any material facts.

It suffices for the moment to say that there were myriad problems along the way: the agonizing search for uniforms and scrub gowns that would fit a woman of Russell’s girth; a tendency on the part of faculty members to employ Russell in order to model hospital procedures incident to the care of obese patients; prolonged lectures and discussions about the desirability of weight loss; and so on and so forth. Indeed, the record reveals a veritable smorgasbord of verbal exchanges characterized by one side as “torment” or “humiliation” and by the other as “expressions of concern” or “forthright statements of school policy.” (It takes little imagination to decipher which litigants are wont to apply which epithets to which actions.)

The court recognizes, of course, that sadism and benevolence — like beauty — often reside principally in the eye of the beholder. And, the court has neither the need nor the means to attempt to discern the subjective motives of myriad actors on the cold, fleshless record of a Rule 56 motion. For the purposes at hand, it is enough to acknowledge that an array of such incidents occurred and that, by the end of her sophomore year, Russell’s size had become a matter of concern for all of the parties.

In her junior year, the plaintiff executed a contract (Contract) purporting to make her further participation in the College’s nursing curriculum contingent upon an average weight loss of two pounds per week. The Contract was a singular sort of agreement. (It is reproduced in full as an appendix to this opinion.) Notwithstanding the signing of the Contract, Russell proved unable to meet the commitment, or even closely to approach it. Her body weight never fell appreciably below 300 pounds. Though the circumstances are complex, she seems to have made — and invariably to have broken — a series of promises in this regard. Predictably, an escalating level of tension began to characterize dealings between Russell and certain of the individual defendants.

The climax occurred on or about August . 23, 1985. The plaintiff received a letter from the coordinator of the nursing program, defendant Chapdelaine, advising that she had been dismissed from the nursing department and from the College. Russell’s education was concededly interrupted at that point (though, after a year’s hiatus, she resumed her studies in nursing at another institution).

II. STATEMENT OF THE CASE

Russell’s complaint, as noted above, contains an octet of claims. Two of these supposed causes of action — Counts VI and VII — allege “federal” claims. Count VI charges the defendants with a denial of due process and an unconstitutional interference with the plaintiff’s protectible liberty and property interests. Count VII alleges *396 handicapped discrimination in derogation of 29 U.S.C. § 794.

The remaining six counts implicate state law, and the parties (who agree on little else) concur that Rhode Island law governs in this diversity case. The state law claims possess a variety of characteristics. Two of these initiatives are contract-based: Count I alleges nonperformance of an agreement to educate and Count II asserts breach of an implied covenant of good faith and fair dealing. Three of the remaining state law initiatives are tort-based: Counts III and VIII posit intentional and negligent infliction of emotional distress, respectively; and Count IV remonstrates against a perceived invasion of Russell’s privacy. Count V — which seeks redress for wrongful dismissal — is a contract/tort hybrid.

It is alleged throughout that the plaintiff lost a year of prospective employment in a job which she claims to have been offered contingent upon successful completion of her nursing degree. Russell seeks compensatory damages for this delay and for the physical and emotional trauma which she purportedly suffered as a result of what she views as the callous, humiliating, and wrongful conduct of the several defendants. The plaintiff also prays for exemplary damages, counsel fees, and costs. 4

The court will first address the impact of the pending Rule 56 motion on the federal law claims, and will thereafter turn to a consideration of the other (state law) counts.

III. FEDERAL CLAIMS

Both of the claims which arise under federal law founder on essentially the same reefs and shoals: the College is not a “state actor,” and its nursing curriculum is not a federally funded “program or activity” within the meaning of the Rehabitation Act of 1973, 29 U.S.C. § 794. The court need not tarry overlong in putting these claims to rest.

A. Due Process

With respect to what the plaintiff envisions as an utter disregard for the niceties (or even the basics) of due process, the court has no need to reach the hotly-debated questions of whether Russell enjoyed any constitutionally protected interest, created by the terms of the Handbook or distilled from any other source. The fifth and fourteenth amendments to the Constitution apply only to the federal government and to the state, respectively — and derivatively, to those whose actions can fairly be attributed to federal or state government. Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482 (1982); Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 156-57, 98 S.Ct. 1729, 1733, 56 L.Ed.2d 185 (1978). Even where an institution admittedly discriminates in its membership policies, there is no deprivation of due process unless the action in question sufficiently implicates the state so as to make the conduct “state action.” Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172, 92 S.Ct. 1965, 1971, 32 L.Ed.2d 627 (1972).

To be sure, if the government plays the role of enforcer for privately originated discrimination, then the government may be forbidden to exercise its police power in furtherance of the discriminatory activity. Shelley v. Kraemer, 334 U.S. 1,18-23, 68 S.Ct. 836, 844-47, 92 L.Ed. 1161 (1948). Or when the web of interconnection between the government and private bigotry is spun tightly enough to conclude that the government agency has “insinuated itself into a position of interdependence” with a discriminatory actor, then the challenged conduct must be subjected to fifth or fourteenth amendment scrutiny. Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 81 S.Ct. 856, 861, 6 L.Ed.2d 45 (1961). Those maxims do not, however assist this plaintiff. The requirement of “state action” demands more than some (modest) interplay between the public *397 and private sectors. Justice Rehnquist’s caveat in Moose Lodge, supra, is particularly relevant here:

The Court has never held, of course, that discrimination by an otherwise private entity would be violative of the Equal Protection Clause if the private entity receives any sort of benefit or service at all from the State, or if it is subject to state regulation in any degree whatever. Since state-furnished services include such necessities of life as electricity, water, and police and fire protection, such a holding would utterly emasculate the distinction between private as distinguished from state conduct set forth in The Civil Rights Cases, supra, and adhered to in subsequent decisions. Our holdings indicate that where the impetus for the discrimination is private, the State must have “significantly involved itself with invidious discriminations,” Reitman v. Mulkey, 387 U.S. 369, 380, 87 S.Ct. 1627, 1633, 18 L.Ed.2d 830 (1967), in order for the discriminatory action to fall within the ambit of the constitutional prohibition.

407 U.S. at 173, 92 S.Ct at 1971.

The First Circuit has given further content to this standard in its decision in McGillicuddy v. Clements, 746 F.2d 76 (1st Cir.1984). There, the court of appeals held that an accounting firm working under a contract with the state was not sufficiently connected with the government to place its conduct within the “state action” rubric. Id. at 77. McGillicuddy makes it plain that even a close relationship with government does not suffice, absent some meaningful entanglement, to invoke the rigors of due process.

Under Moose Lodge and its progeny, no “state action” can be discerned here. The fact that Salve was the recipient of a (rather meagre) library grant is manifestly insufficient to carry the weight of the assertion. The fact that the College’s nursing program is, in certain respects, subject to state agency approval is likewise inadequate. In Moose Lodge, the discriminatory actor was licensed by the state, but that was not enough to impress the imprimatur of the state on the private actor’s bigotry. Id. 407 U.S. at 177, 92 S.Ct. at 1973. The “mere fact that a business is subject to state regulations does not by itself convert its action into that of the state for purposes of the fourteenth amendment.” Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2785, 73 L.Ed.2d 534 (1982). See also Rendell-Baker v. Kohn, 457 U.S. 830, 841, 102 S.Ct. 2764, 2771, 73 L.Ed.2d 418 (1982); Jarrell v. Chemical Dependency Unit of Acadiana, 791 F.2d 373, 374 (5th Cir.1983). These scraps of evidence, combined, do not turn the state action corner; and the record contains aught else. Though what little has been adduced must be construed in the light most favorable to the plaintiff, it utterly fails to demonstrate the slightest glimmer of the requisite governmental involvement. Accordingly, Count VI cannot stand.

B. Handicapped Discrimination

In respect to the plaintiff’s statement of claim under the Rehabilitation Act, 29 U.S.C. § 794, the teachings of the Supreme Court in Grove City College v. Bell, 465 U.S. 555, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984), are controlling. In Grove City, the Court held that a college which received federal funding only indirectly (that is, through tuition subsidies to students) was not subject in all its departments to the provisions of federal antidiscrimination law. Id. at 572, 104 S.Ct. at 1220. A private institution of higher education which, like Salve, receives federal monies exclusively through its students, is subject to federal antidiscrimination laws only with respect to its financial aid program. Id. at 574, 104 S.Ct. at 1222. And, it is well to note that, in this case, Russell does not charge that Salve discriminated against her in respect to scholarship assistance or other financial aid.

The plaintiff, although mouthing the empty conclusion that the College’s nursing curriculum is a “program or activity receiving Federal financial assistance” as required by 29 U.S.C. § 794, has failed *398 to call the court’s attention to any eviden-tiary fact which is capable of bearing the weight of that averment. 5 The law is transparently clear: the Supreme Court has decided the point in Grove City and has since cited that opinion with approval in the context of the very statute at issue here. See Consolidated Rail Corp v. Darrone, 465 U.S. 624, 636, 104 S.Ct. 1248, 1255, 79 L.Ed.2d 568 (1984). See also Bento v. I.T.O. Corp. of Rhode Island, 599 F.Supp. 731, 741-42 (D.R.I.1984). Absent proof that federal funding or financial assistance of any kind was involved in the College’s nursing program, Russell can mount no cause of action against these defendants under 29 U.S.C. § 794. That being so, the difficult issue of whether Russell’s obesity can be considered to be an “impairment” (handicapping condition) within the meaning of 29 U.S.C. § 706(7)(B) need not be reached — and the court expresses no opinion thereon. 6 The lack of any showing of the requisite federal subsidization necessitates the grant of brevis disposition in the defendants’ favor on Count VII of the complaint.

IV. STATE LAW CLAIMS

Conceptually, the plaintiff’s claims for wrongful discharge (Count V) and for the transgression of a theoretical (implied) covenant of good faith and fair dealing (Count II) are linked by common ties in the relevant caselaw. So, the court proposes to deal with these initiatives ensemble. The same sort of approach will be taken with respect to the claims for infliction of emotional distress — intentional (Count III) and negligent (Count VIII), respectively — which likewise lend themselves to collective scrutiny. The remaining two state law causes of action will be treated individually.

A. Dismissal

The plaintiff’s remonstrance in Count V of the complaint, which apparently seeks to draw sustenance from an analogy to the employment relationship, postulates that even a collegian who has no contractual claim to a continuing place in the student body cannot be expelled without just cause. To be sure, some jurisdictions have evidently created such an open-ended cause of action in favor of at-will employees who have been peremptorily dismissed from their jobs. As an ultimate matter, the plaintiff’s claim teeters because of her failure to discover any case in any jurisdiction from which it might be inferred that such a cause of action (if it existed at all) can — or should — be extended to the university/student context. But in this case, there is no need to speculate upon such a far-reaching extension of the at-will employment doctrine — for the underlying doctrine itself simply does not occupy a place in Rhode Island law.

In the employer-employee environment, no less an authority than the Supreme Court of Rhode Island has recently spoken of the well-settled rule that “a promise to render personal services to another for an indefinite term is terminable at any time at the will of either party.” Rotondo v. Seaboard Foundry, Inc., 440 A.2d *399 751, 752 (R.I.1981). See also Oken v. National Chain Co., 424 A.2d 234, 237 (R.I.1981). Put another way, an at-will employment relationship “creates no executory obligations.” Dudzik v. Lessona Corp., 473 A.2d 762, 766 (R.I.1984). This hornbook principle has twice been accepted as an accurate reflection of Rhode Island law by this federal district court. Lopez v. Bulova Watch Co., Inc., 582 F.Supp. 755, 767 n. 19 (D.R.I.1984) (Selya, J.); Brainard v. Imperial Manufacturing Co., 571 F.Supp. 37, 39 (D.R.I.1983) (Pettine, J.). So, by logical extrapolation, Count V stands upon too unsteady a legal footing to survive the instant summary judgment motion.

It would seem that this reasoning and collocation of the authorities writes “finis” as well to the charge contained in Count II of the complaint. After all, the claim that the defendants have breached implied covenants of good faith and fair dealing in the course of terminating the relationship between Russell and the College relies largely on caselaw from other jurisdictions in the employer/employee context, and that authority is of no consequence in Rhode Island. See ante. Yet, the claimant responds, this count is sustainable by reference to the decision of the state supreme court in AAA Pool Service & Supply, Inc. v. Aetna Casualty & Surety Co., 121 R.I. 96, 395 A.2d 724 (R.I.1978).

The AAA Pool decision is, however, a fetid sinkhole for this plaintiff. In that case, the Rhode Island Supreme Court held that the supposed existence of an implied covenant of good faith and fair dealing did not give rise to any independent cause of action in the property insurance milieu. Id. at 726. 7 Although the AAA Pool tribunal affirmed the state supreme court’s earlier recognition of a generalized duty of fair dealing in contractual relationships, espoused in Ide Farm & Stable, Inc. v. Cardi, 110 R.I. 735, 297 A.2d 643, 645 (R.I.1972), that generic duty was deemed inadequate to form the basis for an independent cause of action in tort in AAA Pool. It is similarly unavailing on the facts of the instant case.

A close look at Ide Farm is revealing. There, the state supreme court discerned “an implied covenant of good faith and fair dealing between parties to a (purchase and sale) contract so that contractual objectives may be achieved.” Id. at 645 (emphasis supplied). The plaintiff in Ide Farm sought only to recover the benefit of a bargain foregone when the defendant/buyer failed to meet obligations which had arisen under a purchase and sale agreement. Id. at 643. Ide Farm did no more than acknowledge the existence of an action in contract for expectation damages against a party who failed to use best efforts to fulfill a promise. Nothing in the case suggests (or condones) the creation of an independent cause of action sounding in tort for consequential, damages. The sole thrust of the opinion is toward the achievement of contractual objectives, not toward the establishment of a separate cause of action for punitive or consequential damages for tortious bad faith. Accordingly, Ide Farm is barren soil for the present plaintiff.

As mentioned earlier, Rhode Island has consistently rejected the notion that, without more, an action lies in favor of an at-will employee for an unfair or bad faith breach of some covenant implied by law. See Rotondo, supra; Oken, supra. See also Lopez, supra; Brainard, supra. Where, as here, the plaintiff was a college student rather than an employee, there is even less reason to believe that the state courts would afford her a right of action of the type which she asserts in Count II of her complaint. In the absence of any respectable precedent from the courts of Rhode Island favorable to the plaintiff's *400 stance, and in an ambience where no court has intruded into the groves of Academe to reach so ambitious a result, this court cannot retailor state law to suit the plaintiffs specifications. After all, “[i]t is not for this court, sitting in diversity jurisdiction, to blaze a new trail where the footprints of the state courts point conspicuously in a contrary direction.” Plummer v. Abbott Laboratories, 568 F.Supp. 920, 927 (D.R.I.1983).

There is, under Rhode Island law, no independently actionable covenant of good faith or fair dealing implicit in the university/student relationship. And, Russell has shown nothing which would enhance her case so as to extricate it from the operation of this general principle. The defendants’ Rule 56 motion for summary judgment has merit insofar as it pertains to Count II, and must be granted.

B. Emotional Distress

Counts III and VIII of the plaintiff’s complaint dwell in the realm of emotional distress, the former alleging intentional infliction and the latter claiming injury in consequence of the defendants’ negligence.

The court need pause only briefly in its consideration of Count VIII. Rhode Island law controls in this diversity case; and the state supreme court, in Champlin v. Washington Trust Co., 478 A.2d 985, 988 (R.I.1984), has expressly rejected the viability of any cause of action for negligent infliction of emotional distress fashioned along the lines set out in § 313 of the Restatement (Second) Torts. Rhode Island has been slow to expand the horizons of the (narrowly-defined) cause of action for negligent infliction of emotional harm, see Plummer v. Abbott Laboratories, 568 F.Supp. at 922-27 (collecting cases), and Count VIII represents far too ambitious an initiative, given the current state of Rhode Island law. A federal court, of course, “must take state law as it exists: not as it might conceivably be, some day; nor even as it should be.... Plaintiffs who seek out a federal forum in a diversity action should anticipate no more.” Id. at 927.

The early demise of Count VIII does not necessarily sound a death knell for Count III, as the claim asserted therein rests on a different legal footing. In attempting to invoke the standard of the Restatement (Second) Torts § 46, Count III tracks a path which is theoretically viable. Indeed, the state supreme court has heretofore recognized the existence of a cause of action patterned after § 46. See Champlin, 478 A.2d at 988.

The basic requisites of an intentional infliction claim are easily stated:

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such body harms,

Restatement (Second) of Torts § 46 (1965).

Before addressing any questions related to the conduct alleged and its supposed effects, the court must first determine whether the university/student relationship comprises the kind of soil in which the seeds of a § 46 claim for emotional harm may sprout. We start, again, with Champ-lin, which recognized a cause of action for intentional infliction of emotional distress in the debtor-creditor context. Id. at 989. Any belief that Champlin might be limited to its own facts, or to the collection milieu, has been dispelled by the ensuing decision in Elias v. Youngken, 493 A.2d 158 (R.I.1985). Elias held that some rather unpleasant communications between an employee and his supervisor could, in theory, furnish the basis for a cause of action for intentional infliction of emotional distress (though the particular conduct alleged in Elias did not meet the rigorous standard of § 46). Id. at 163-64. The state supreme court again assumed the existence of this particular cause of action without inquiry into its jurisprudential antecedents or conceptual underpinnings, and considered only the “threshold of conduct,” 493 A.2d at 164, at which liability might be imposed. Id. at 163-64. Though Elias is sparse of phrase, both its language and tenor but *401 tress a broad reading and application of Champlin. By extending the potential reach of the tort to the supervisor/employee relationship, Elias enhances the (already bright) prospect of construing the scope of § 46 so as to embrace other (kindrpd) pairings.

The caselaw from other jurisdictions does not suggest any basis for insulating the university/student setting from the operation of the general rule. See Note, 38 A.L.R.4th 998, 1003-1030 (1985) (reviewing cases). Without reaching the question of whether Rhode Island would limit the bounds of this tort to some particular sets of relationships, this court is persuaded that the uniquely vulnerable nature of the student’s standing in the world of the university places that pairing squarely within the category of relationships which, on any reasonable taxonymy, would give rise to a duty to avoid the intentional infliction of emotional harm.

Such a conclusion marks only the beginning of the odyssey. While Elias and Champlin together imply a cause of action for intentional infliction of emotional distress, generally applicable in the circumstances of this case, there are high hurdles along the road to success on such claims. First, the concept of what might be termed “intentionality” is required to do double duty in these precincts. The interdicted conduct itself must be “intentional,” that is, purposeful, wilful, or wanton. What is more, the harm that results must also be “intentional,” that is, it must have been intended or least recklessly caused.

The face side of the coin is undoubtedly legible in this case. The conduct which the defendants undertook was volitional; what was done, was done purposefully. Whether or not the defendants intended the consequences that ensued, the acts that they committed vis-a-vis Russell were, without exception, the products of forethought and the conscious exercise of free will.

The flip side of the § 46 coin is much harder to read. In the Champlin phrase, the challenged conduct “must be intentional or in reckless disregard of the probability of causing emotional distress.” 478 A.2d at 989. The plaintiff does not argue that these defendants desired to cause her to suffer, or even that they knew such suffering was substantially certain to follow from their course of conduct. Rather, Russell contends that the concept of recklessness is subsumed within the concept of intentionality for these purposes. Prosser and Keeton weigh in on plaintiffs side of this issue:

[Liability for extreme outrage is broader [than a literal interpretation of intentionality would allow] and extends to situations in which there is no certainty, but merely a high degree of probability that the mental distress will follow, and the defendant goes ahead in conscious disregard of it. This is the type of conduct which commonly is called wilful or wanton, or reckless.

Prosser and Keeton, The Law of Torts (5th ed. 1984) § 12 at 64 (discussing the requirement of extreme outrage).

There are four elements which must coincide under Rhode Island law to impose liability on such a theory:

(1) the conduct must be intentional or in reckless disregard of the probability of causing emotional distress, (2) the conduct must be extreme and outrageous, (3) there must be a causal connection between the wrongful conduct and the emotional distress, and (4) the emotional distress in question must be severe.

Champlin,