WILLIAM T. LAWRENCE, Senior District Judge.
This cause is before the Court on the parties' motions for summary judgment (Dkt. Nos. 236 and 254). The motions are fully briefed and the Court, being duly advised, rules as follows.
Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." In ruling on a motion for summary judgment, the admissible evidence presented by the non-moving party must be believed, and all reasonable inferences must be drawn in the non-movant's favor. Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) ("We view the record in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor."). When the Court reviews cross-motions for summary judgment, as is the case here, "we construe all inferences in favor of the party against whom the motion under consideration is made." Speciale v. Blue Cross & Blue Shield Ass'n, 538 F.3d 615, 621 (7th Cir. 2008) (quotation omitted). "`[W]e look to the burden of proof that each party would bear on an issue of trial.'" Diaz v. Prudential Ins. Co. of Am., 499 F.3d 640, 643 (7th Cir. 2007) (quoting Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997)). However, a party who bears the burden of proof on a particular issue may not rest on its pleadings, but must show what evidence it has that there is a genuine issue of material fact that requires trial. Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003). The non-moving party bears the burden of specifically identifying the relevant evidence of record, and "the court is not required to scour the record in search of evidence to defeat a motion for summary judgment." Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001).
Also relevant to the resolution of the instant motions is this district's Local Rule 56-1, which provides, in relevant part:
The Court is entitled to enforce these rules. Perron on behalf of Jackson v. J.P. Morgan Chase Bank, N.A., 845 F.3d 852, 856 (7th Cir. 2017) ("The district judge held that the material facts are undisputed because [the Plaintiffs] failed to include a section labeled `Statement of Material Facts in Dispute' in their brief as required by local rule. See S.D. Ind. L. R. 56-1(b). The Plaintiffs] challenge that holding, but the judge has broad discretion to enforce the local rules, see Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 923 (7th Cir. 1994), and we see no abuse of discretion here.").
As noted, both parties have moved for summary judgment. Unless otherwise noted, the following facts are asserted by a party, properly supported in the record, and taken as true by the Court because they are not properly controverted by the opposing party.
Plaintiff Justin Castelino enrolled as a transfer student at Defendant Rose-Hulman Institute of Technology ("Rose-Hulman") in the fall of 2012. Castelino has "an impairment that substantially limits neurological and brain functions and major life activities including learning, reading, concentrating, thinking, communicating, and working." Dkt. No. 237 at 3. His doctor describes his disability as "related with [sic] slow processing and issues with registration/recall." Id.
Rose-Hulman requires applicants who seek accommodations for disabilities to certify their disabilities within the three years prior to their enrollment. Castelino submitted to examinations on October 21, 2011, and November 18, 2011, which resulted in diagnoses of "attention-deficit/hyperactivity disorder, predominantly inattentive type" and "learning disorder NOS." Dkt. No. 56-1 at 6. The examiner's report noted that "clinical history (and) the current test findings are consistent with his previously established neurodevelopmental attention deficit disorder and learning disability," and that:
Id. The examiner recommended that the following "previously recommended academic accommodations" be continued: extended time on tests; academic tutoring; and the option of recording lectures and having copies of lecture outlines available to him during the lectures. Id. at 7.
It is Rose-Hulman's policy to consider accommodations for students with disabilities on a case-by-case basis. Dkt. No. 126-12 at 3. Students are directed to contact the Director of Disability Services, who "reviews documentation provided by the student and, in consultation with the student, determines which accommodations are appropriate to the student's particular needs and academic programs." Id. at 3-4. Castelino submitted a Disability Disclosure Form to the Director of Disability Services, Karen DeGrange, on which he stated that his disability was "ADHD [and] auditory and visual processing disorder." Dkt. No. 246-43. He requested the accommodations of "recording [and] double test time." Id. Each quarter, Dr. DeGrange would notify Castelino's professors that he was entitled to the accommodation of 100% extended time on timed in-class tests and assignments in a quiet, distraction-free environment.
During the spring quarter of 2012-13, Dr. James Hanson required Castelino to take his exam in the regular classroom rather than a quiet location.
In 2013, Dr. Hanson observed Castelino copying from another student's homework before class began. Dr. Hanson gave Castelino a zero on the assignment and placed a letter of academic misconduct in his file. Castelino appealed Dr. Hanson's decision to the Rules and Discipline Committee, which upheld Dr. Hanson's decision.
In May 2014, Dr. Jeremy Chapman reported Castelino for a second act of academic misconduct for submitting an answer that was almost identical to another student's work. Because it was the second charge of academic misconduct against Castelino, Dr. Kevin Sutterer, the relevant department head, had the option of referring Castelino to the Rules and Discipline Committee for possible dismissal, but he chose not to do so because Castelino claimed the incident was a misunderstanding and Dr. Sutterer found that there was "some doubt as to whether the submitted duplicate work was intentional or due to a misunderstanding." Dkt. No. 246-3 at 2.
Throughout Castelino's tenure at Rose-Hulman, many complaints were documented about his behavior, including numerous instances in which he yelled and cursed at professors and other staff members.
Castelino dropped Dr. Chapman's course ("CE 380") in 2014 and re-enrolled in it in the Spring 2015 term. In the Spring 2014 term Dr. Chapman had permitted students to use a typed note sheet for his exams, but he changed his policy in the 2014-2015 school year to require students to handwrite their note sheets. He made this change because he realized that students were simply copying and pasting course slides to make their note sheets, and he believed they would learn more if they were required to handwrite them instead. On April 2, 2015, he informed his students that their note sheets were to be handwritten for their exam the following day. Castelino asked Dr. Chapman if he could have an exception to the policy because he wanted to use his typewritten note sheet from the first time he took the course. He told Dr. Chapman that he had not just copied and pasted the information onto his note sheet. When Dr. Chapman did not agree to allow him to reuse his typewritten sheet, Castelino discussed the issue with Dr. DeGrange and Dr. Sutterer.
Dr. DeGrange arranged for Castelino to have his note sheet from the previous year transcribed into a handwritten note sheet at the Learning Center on campus.
Castelino was permitted to use the typed note sheet for the exam. However, the students were required to turn in their note sheets along with their exams, and Dr. Chapman discovered that one side of Castelino's note sheet contained at least 26 copied and pasted course slides. Because of this, Dr. Chapman considered Castelino's use of the note sheet to be academic misconduct and sent a letter to that effect to Castelino. Pursuant to Rose-Hulman policy, Dr. Chapman sent copies of the letter to Dr. Sutterer, Dean of Students Pete Gustafson, and Dean of Faculty Richard Stamper. Castelino received a zero on the exam, which meant that he could not pass the course.
Pursuant to Rose-Hulman policy as set forth in its Student Handbook, Castelino had the opportunity to appeal Dr. Chapman's finding of academic misconduct to the Rules and Discipline Committee if he felt that Dr. Chapman had "been unfair or ha[d] imposed a penalty too severe." Dkt. No. 246-26. Dr. Chapman's letter informed Castelino of his right to appeal. Castelino did not immediately appeal Dr. Chapman's decision.
The Student Handbook also provided that "[if] the Dean of Students finds a student involved in more than one instance of Academic Misconduct, the Dean may bring the case to the Institute Rules and Discipline Committee." Id. By letter dated April 20, 2015, Dean of Students Gustafson informed the Rules and Discipline Committee that Castelino had accumulated three cases of academic misconduct so that the Committee could "determine if additional sanctions or penalties should be levied against Mr. Castelino." Dkt. No. 246-30. After Castelino was notified of the Rules and Discipline Committee's inquiry, he requested and was granted the opportunity to appeal the second and third findings of academic misconduct.
Castelino's hearing before the Rules and Discipline Committee was held on May 13, 2015. Due to Castelino's behavior leading up to the hearing, Dr. Ditteon feared that Castelino might become violent and requested the presence of security for the hearing, something which he had never done with any other student. Also during this time, members of the Civil Engineering Department were so concerned for their safety due to Castelino's behavior that they created a code word to use with Rose-Hulman's public safety office if they felt they needed assistance during an encounter with Castelino.
Castelino asked to have an attorney present for the hearing, but the request was denied. He selected Professor Clifford Grigg as an advisor for the process, and Dr. Grigg was present for the hearing. Castelino was permitted to provide testimony, witnesses, and evidence at the hearing. Dr. Chapman testified at the hearing that Castelino told him that the note sheet he wanted to use did not contain any copy and pasted slides. Dr. Sutterer testified that Castelino told him that he understood that he was not permitted to use the power point slides and that he had a typed note sheet that he wanted to use. Castelino's fiancé testified that she was present for Castelino's conversation with Dr. Chapman about his note sheet prior to the exam and that Castelino told Dr. Chapman that he did not just copy and paste the information on the sheet. Castelino suggested that what he told Dr. Chapman and Dr. Sutterer was that he did not "just" copy and paste the information, by which he meant that he had typed some, but not all, of the information. Dr. Sutterer testified that the clear import of the conversation was that Castelino understood that copied powerpoint slides were not to be used. After considering the evidence, the Committee found Castelino responsible for repeated acts of academic misconduct and voted to suspend him for one quarter. Castelino was informed that he could finish the current quarter and then petition for readmission for the winter quarter of 2015-16.
Castelino appealed his suspension to the faculty. Dr. James Conwell, President of Rose-Hulman, met with Castelino to discuss the procedure for the appeal hearing. Castelino became angry during the meeting and began yelling at Dr. Conwell, accusing him of configuring the hearing in an unfair manner. After repeatedly asking Castelino to calm down, Dr. Conwell finally asked him to leave his office and instructed him not to have any further in-person contact with his office.
In conjunction with his appeal, Castelino was permitted to address the faculty in person and submit a written letter setting out his position. The faculty upheld his suspension.
Castelino did not reapply for admission for the 2015-16 winter quarter, but he did reapply for the following quarter, spring 2016. Dean Erik Hayes reviewed the letter sent by Castelino seeking readmittance and recommended to the Admissions and Standing Committee that readmission be denied because he believed that Castelino's letter indicated that he still did not take responsibility for his actions. On March 6, 2016, Castelino appeared before the Admissions and Standing Committee. During the readmission hearing, Castelino claimed that the incidents of academic misconduct were caused by breakdowns in communication. Castelino was unable to tell the Committee members what courses he would take in the spring quarter, but stated that Dr. Sutterer had told him that they would figure that out if he were to be readmitted. The Committee determined that enrolling for the spring quarter would provide no added benefit over waiting for the fall quarter, given the courses Castelino needed to graduate and when those courses were offered. The Committee voted to deny Castelino readmission for the spring 2016 quarter.
Shortly after this hearing, Rose-Hulman learned of an incident that had occurred in July 2015, two months after Castelino had been suspended from Rose-Hulman. According to newspaper article, which Dr. Sutterer found by searching Castelino's name on the internet, Castelino was arrested in Connecticut for breach of peace, cultivation of marijuana, possession of more than four ounces of marijuana, sales of marijuana, possession of a hallucinogen, operation of a drug factory, and conspiracy to commit each offense. The article further reported that the arrest was precipitated by a call to police reporting that a man was choking a woman in a pickup truck. On March 24, 2016, Rose-Hulman obtained records regarding Castelino's criminal history that showed that he had pled guilty to forgery in 2007, pled guilty to property damage/injury in May 2010, for which he served six months in jail, and pled guilty to operating a motor vehicle under the influence of alcohol or drugs in July 2010.
On June 2, 2016, Castelino applied for admission for the 2016 fall quarter. A hearing was held before the Admissions and Standing Committee on June 10, 2016. The Committee asked Castelino about the July 2015 incident, and he stated that he had "a disagreement with his fiancée and she had `stuff' on her, so they were arrested. When asked if he was choking his fiancée, Castelino stated there were no choking charges, only drug related charges." Dkt. No. 246-8 ¶ 24. He further claimed that he was a confidential informant, that the newspaper article was part of the cover up of that fact, and that "the police seized `a bunch of random stuff' throughout his house to make the case look real." Id. ¶ 25.
Dr. Conwell expressed his opinion to the Committee that Castelino posed a safety risk to the Rose-Hulman community. The Committee voted to deny his admission request, and Castelino was informed that he would not be permitted to reapply.
Castelino asserts the following claims in his Amended Complaint: (1) violation of the Americans with Disabilities Act; (2) breach of contract; (3) defamation; (4) false advertising; (5) invasion of privacy; (6) harassment; and (7) malice. Each party moves for summary judgment on all of Castelino's claims. Each claim will be addressed, in turn, below.
As an initial matter, the Court notes that its consideration of the pending motions has been hindered by the manner in which Castelino briefed his own motion and his opposition to Rose-Hulman's motion. While Castelino points to a large number of exhibits throughout his briefs, he often fails to articulate in any coherent manner how he believes those exhibits, coupled with the applicable law, demonstrate that he is entitled to (or Rose-Hulman is not entitled to) summary judgment on an issue. In addition, while his briefs are divided into sections, it is often unclear how some of the evidence and arguments contained in a section relate to the purported topic of that section. While the Court has endeavored to address each of the arguments made by Castelino, "`[i]t is not the obligation of the court to research and construct the legal arguments open to parties, especially when they are represented by counsel.'" Riley v. City of Kokomo, 909 F.3d 182, 190 (7th Cir. 2018) (quoting Beard v. Whitley Cty. REMC, 840 F.2d 405, 408-09 (7th Cir. 1988), and citing Schaefer v. Universal Scaffolding & Equip., LLC, 839 F.3d 599, 607 (7th Cir. 2016) ("Perfunctory and undeveloped arguments are waived, as are arguments unsupported by legal authority.")).
In Count I of his Amended Complaint, Castelino asserts a claim for violation of Title III of the Americans with Disabilities Act ("ADA"),
In the ADA Fact Section, Castelino discusses several actions by Rose-Hulman faculty. First, he asserts that "[f]or one exam Dr. James Hanson deprived [Castelino] of double time and a distraction-free environment." Dkt. No. 237 at 5. However, the statute of limitations for a Title III ADA claim brought in Indiana is two years, see Scherr v. Marriott Int'l, Inc., 703 F.3d 1069, 1075 (7th Cir. 2013) (relevant state's statute of limitation for personal injury cases applies to Title III ADA cases); Ind. Code § 34-11-2-4(a)(1) (two-year statute of limitations for "injury to person or character"),
The bulk of the facts contained in the ADA Fact Section relate to the note sheet incident in Dr. Chapman's class. Castelino argues that "[b]y enforcing a new rule on handwritten notes with one day's notice, and complaining when [Castelino's] note card contained printed graphs, Dr. Chapman denied [Castelino] an accommodation that would make his educational opportunity as effective as that provided to others." Dkt. No. 237 at 12. But Castelino points to no evidence that the accommodation that was provided by Rose-Hulman—the opportunity to use a typed note sheet that did not contain cut and pasted material—was not a reasonable accommodation for his disability. In fact, nowhere in his summary judgment briefs does Castelino articulate why he believes that Rose-Hulman was obligated to allow him to use his note sheet from the previous year with its cut and pasted material; in other words, he fails to explain how his disability impacted his ability to create a new note sheet that did not contain material that had been cut and pasted.
It is unclear whether Castelino argues that Rose-Hulman's decision to suspend him and/or the decision not to readmit him were themselves discriminatory, or whether he argues only that those decisions violated the ADA because they were based on Dr. Chapman's misconduct charge against him for his use of the note sheet which, as discussed above, he asserts was caused by the failure to accommodate his disability. His briefs seem to contradict themselves on this issue. Castelino argues
Dkt. No. 237 at 13; see also Dkt. No. 237 at 12 ("Knowing of [Castelino's] disabilities . . . Dr. Chapman denied him a reasonable accommodation and the chance to participate in or benefit from the CE380 course, an advantage the Defendant offered others. This violated 42 U.S.C. § 12182(b)(1)(A)(1). The Defendant perpetuated Dr. Chapman's discrimination by suspending [Castelino] in reliance on it."); Dkt. No. 291 at 28 ("In disciplining [Castelino] for academic misconduct, the Defendant violated the ADA by perpetuating Dr. Chapman's illegal discrimination."); Dkt. No 264 at 2 (describing ADA claim as failure to accommodate); id. at 8 (stating that Castelino did not sue because Rose-Hulman failed to readmit him; "[he] sued because, in order to suspend him, [Rose-Hulman] denied his ADA accommodations and broke its contract with him."); id. at 11 ("And [Castelino] didn't sue Rose-Hulman for refusing to re-admit him. He sued because Rose-Hulman denied accommodations guaranteed to him by the ADA without the required individualized assessment, and then, without determining him to be an immediate threat and by ignoring its own rules of procedure, it suspended him because he didn't and couldn't behave as though he were not disabled."); Dkt. No. 291 at 34 (same); id. at 37 ("Castelino originally sued because the procedures that resulted in that suspension were unfair and a breach of contract and the academic misconduct charges against him resulted from violations of the ADA. . . . The arrest in question occurred after and as a result of the suspension; if Justin hadn't been suspended, he would never have been in Connecticut to get arrested. If the Defendant had accommodated his disability in reasonable ways, there would have been no grounds to suspend him and no "`additional information to conclude he was a threat to the campus community.'"); but see Dkt. No. 264 at 11-12 (consideration of arrest absent conviction in deciding not to readmit Castelino constituted discrimination and violated the ADA); id. at 16 (by considering the arrest, Rose-Hulman "provided [Castelino] with a hearing that was different from those it offered the public in ways that did not make the hearing as effective as that provided to others" and "applied standards, criteria or methods of administration which effectively discriminated against [Castelino] on the basis of disability" in violation of the ADA); id. at 21 ("By taking the post suspension arrest-without-conviction issue to a committee without the authority to consider it, while it exercised its proper authority and considered Justin's readmission, Drs. Conwell and Hayes applied standards, criteria and methods of administration which effectively discriminated against Justin on the basis of disability and perpetuated Dr. Chapman's discrimination while they were all subject to common administrative control," in violation of the ADA); Dkt. No. 291 at 35 (same); Dkt. No. 264 ("[Castelino] has never said he was suspended for exercising his right to accommodations. He complains that he was denied accommodations in ways that enabled faculty to charge him with misconduct, and that the Defendant's method of administration with respect to those charges breached its contract with him. As a private university, the Defendant could not legally offer Justin a service, facility, privilege, advantage, accommodation or opportunity different from those it offered the public unless the difference made the service, facility, et cetera
In any event, Castelino fails to articulate how the standards and criteria used by Rose-Hulman or any of the procedural irregularities that he alleges occurred had the effect of discriminating against Castelino on the basis of his disability. It is not enough to say incorrect procedures were used; to constitute discrimination under the ADA, those incorrect procedures had to be used because of Castelino's disability. Barring that, Castelino must be able to show that the allegedly incorrect standards or procedures used adversely affected Castelino in a way that they would not have adversely affected a person without a disability. See A.H. by Holzmueller v. Illinois High Sch. Ass'n, 881 F.3d 587, 592-93 (7th Cir. 2018) ("Thus, we have recognized that disability discrimination under . . . the ADA can be established in three different ways: `(1) the defendant intentionally acted on the basis of the disability, (2) the defendant refused to provide a reasonable modification, or (3) the defendant's rule disproportionally impacts disabled people.'" (quoting Washington v. Ind. High Sch. Athletic Ass'n, Inc., 181 F.3d 840, 847 (7th Cir. 1999)). Castelino fails to do so.
Castelino further asserts that
Dkt. No. 237 at 15. While elsewhere in his briefs Castelino provides more detail regarding how he believes Rose-Hulman violated its own procedures with regard to his misconduct charges, nowhere does he articulate how those alleged violations ran afoul of the ADA. In other words, he does not explain how the failure to follow certain procedures had the effect of discriminating against him on the basis of disability or of perpetuating discrimination based on disability. Cf. Packer v. Trustees of Indiana Univ. Sch. of Med., 800 F.3d 843, 852 (7th Cir. 2015) ("The problem, though, is that Packer's abbreviated analysis of the claim made no effort to weave such evidence into a cogent argument, grounded in the case law, as to why a factfinder might be able to [find in her favor]."). Nor does he point to evidence that Rose-Hulman handled situations in which non-disabled students were charged with multiple acts of misconduct differently or evidence that suggests that Rose-Hulman decided to violate its own procedures regarding the misconduct charges against Castelino because of Castelino's disability. Therefore, he has failed to point to evidence from which a reasonable jury could determine that the manner in which Rose-Hulman handled the misconduct charges against him violated the ADA.
The ADA Fact Section also contains the following:
Dkt. No. 237 at 8 (record citations omitted). In the argument section that follows, Castelino then describes his first readmission hearing as "testing the memory of a man whose issues with registration and recall were documented" and asserts that two members of the committee "spoke on the record and used [Castelino's] disabilities against him." Id. at 17. He then asserts that this "would never have happened" if Rose-Hulman had complied with its own rules and appointed Jan Pink chair pro tempore of the committee,"
The ADA Fact Section also states that Rose-Hulman "declared to the [ICRC] that it denied [Castelino] the right to re-apply because of his `threatening behaviors toward other students, faculty, and administrators and his criminal activities that occurred in July 2015, shortly after his suspension from Rose-Hulman.' Dr. Graves told [Castelino] of the decision without explaining it." Dkt. No. 237 at 7-8 (record citations omitted). In the argument section that follows, Castelino asserts that the "documented acts of aggression" pointed to by Rose-Hulman in its filing before the [ICRC] occurred "in the months leading up to his suspension in May 2015," and argues that
Dkt. No. 237 at 9. It is not entirely clear what Castelino means by this, and he does not elaborate. To the extent that Castelino is arguing that Rose-Hulman was required to accommodate his disability by permitting him to commit acts of aggression without consequence, that argument is wholly meritless. Also without merit is Castelino's insistence throughout his brief that Rose-Hulman could not take action based on any threatening behavior by Castelino without first engaging in the individualized assessment required by 28 C.F.R. § 36.208,
28 C.F.R. § 36.208. As the Seventh Circuit has held in the employee context,
Felix v. Wisconsin Dep't of Transportation, 828 F.3d 560, 571 (7th Cir. 2016). Castelino is simply wrong when he argues that Rose-Hulman bears the burden of proving a direct threat defense in this case.
Finally, the ADA Fact Section notes the fact that Rose-Hulman's on-line admissions application requires applicants to reveal only if they have been convicted of a felony. In the argument section, Castelino argues that Rose-Hulman discriminated against him "by considering any post-suspension arrest at all without proof of conviction." Dkt. No. 237 at 18. Castelino then continues: "What motivates this discrimination? The only evidence of any difference between Justin and other students, DD #47, and other applicants, DD #41, is his disability, DD ## 1 and 2." But the evidence cited by Castelino simply does not support this assertion. "DD #47" refers to Dkt. No. 80-4, which contains information about several Rose-Hulman students who were charged with crimes:
Finally, Castelino suggests that the decision not to readmit him was made in retaliation for his complaint before the ICRC. See Dkt. No. 237 at 19 ("What changed between March 7, 2016, and June 10, 2016? On May 17, 2016, Justin's administrative law counsel announced that he would pursue his claim against Rose Hulman. But retaliation is also illegal. Title 42 USC §12203; 28 CFR §35.134.") (record citations omitted). However, Castelino points to no evidence that Rose-Hulman was aware of the May 17, 2016, letter to which he cites; that letter is addressed to the ICRC, not to Rose-Hulman, and does not indicate that Rose-Hulman was copied. Castelino cites to another letter in his response to Rose-Hulman's motion for summary judgment, this one dated March 8, 2016, and addressed to Rose-Hulman, in which the lawyer who was representing Castelino regarding his complaint against Rose-Hulman before the ICRC discusses the preservation of electronically stored information. See Dkt. No. 264 at 17 (citing Dkt. No. 264-11). However, that letter's reference to Castelino's ICRC complaint presumably refers to the complaint Castelino filed in June 2015, to which Rose-Hulman responded in July 2015. See Dkt. Nos. 111-5 and 111-7 Nothing in the March 2016 letter suggests that Castelino had filed or anticipated filing a new complaint. In any event, Castelino has failed to point to evidence from which a reasonable factfinder could find in his favor on a retaliation claim. Rose-Hulman has provided evidence that Dr. Conwell learned of Castelino's arrest during his suspension, as well as his criminal record prior to his enrollment at Rose-Hulman, after March 6, 2018, and that it was that information, combined with the incidents of aggressive behavior toward his professors and others on campus, that led Dr. Conwell to determine that Castelino posed a safety risk and should not be readmitted. Dkt. No. 246-7 at 2. And even assuming that Dr. Conwell was aware of Castelino's intent to file a new ICRC complaint when the decision not to readmit him was made, that, alone, is not sufficient to support a claim for retaliation. See, e.g., Burks v. Wisconsin Dept. of Trans., 464 F.3d 744, 758-59 (7th Cir. 2006) (explaining that "suspicious timing alone . . . does not support a reasonable inference of retaliation" because the "mere fact that one event preceded another does nothing to prove that the first event caused the second" (internal citation omitted)). In any event, as cited above, Castelino states numerous times in his briefs that he is not suing for Rose-Hulman's ultimate refusal to readmit him, so whether that decision about which he is not suing was retaliatory is irrelevant.
As set forth above, the Court finds that Castelino has not, either in conjunction with his own motion for summary judgment or in his response to Rose-Hulman's motion for summary judgment, pointed to evidence of record from which a reasonable factfinder could find in his favor on any of his claims under the ADA. Accordingly, Castelino's motion for summary judgment is denied and Rose-Hulman's motion for summary judgment is granted with regard to those claims.
Castelino's breach of contract claim is based on numerous ways in which he asserts that Rose-Hulman's treatment of him violated its own policies and procedures, as set forth in its Student Handbook, Administrative Rules and Procedures, its Policy for Civil Rights Equity, and its Faculty Handbook. See Dkt. No. 264 at 3 (listing citations to the relevant terms of the contract as alleged by Castelino). In his opening brief, Castelino's overarching argument is that these documents created an express contract between him and Rose-Hulman and that any failure by Rose-Hulman to comply fully with the policies and procedures set forth within them constituted a breach of that contract. That is incorrect as a matter of law.
Under Indiana law, the relationship between a student and an institute of higher learning is characterized as one of implied contract, not express contract as asserted by Castelino. Amaya v. Brater, 981 N.E.2d 1235, 1240 (Ind. Ct. App. 2013) (citing Neel v. Indiana University Board of Trustees, 435 N.E.2d 607, 610 (Ind. Ct. App. 1982)). "The terms of the contract, however, are rarely delineated, nor do the courts apply contract law rigidly. It is generally well accepted that the catalogues, bulletins, circulars, and regulations of a university made available to the matriculant become of part of the contract." Id. (citations omitted).
Id; Gordon v. Purdue Univ., 862 N.E.2d 1244, 1251 (Ind. Ct. App. 2007).
Amaya, 981 N.E.2d at 1240;
That means that it is not sufficient for Castelino to simply identify specific rules in Rose-Hulman's various policy handbooks with which he believes Rose-Hulman failed to comply. Rather, in order to survive summary judgment on his breach of contract claim, Castelino must point to evidence from which a reasonable jury could conclude that Rose-Hulman's employees "engaged in the conscious doing of a wrong because of dishonest purpose or moral obliquity or had a state of mind affirmatively operating with furtive design or ill will." Id. at 1242 (citations omitted). Castelino fails to do so.
Castelino asserts that Rose-Hulman breached its contract with him in the following ways:
Even assuming that Castelino is correct that some or all of these things fell short of following the procedures established by Rose-Hulman, Castelino points to no evidence that any of these procedural failures were the result of bad faith; nor has he articulated how the various procedural violations harmed him, as he does not explain why he believes the outcome would have been different if the "correct" procedure had been followed.
Finally, Castelino argues that Rose-Hulman breached its contract with him by failing to follow its own non-discrimination policy when it violated the ADA by denying him various accommodations and discriminating against him on the basis of his disability. Even assuming that a violation of the ADA could form the basis of a breach of contract action because of Rose-Hulman's non-discrimination policy, Castelino has failed to point to evidence that would support a finding that the various actions in question violated the ADA. As discussed above, it is not sufficient to simply say an accommodation was not provided; there must be evidence that the accommodation in question was a reasonable accommodation of his disability and that an alternative reasonable accommodation was not provided. Further, he points to no evidence from which a reasonable jury could conclude that any of the actions he points to were taken because of his disability or that they disproportionately impacted him because of his disability.
As set forth above, the Court finds that Castelino has not, either in conjunction with his own motion for summary judgment or in his response to Rose-Hulman's motion for summary judgment, pointed to evidence of record from which a reasonable factfinder could find in his favor on his breach of contract claim. Accordingly, Castelino's motion for summary judgment is denied and Rose-Hulman's motion for summary judgment is granted with regard to that claim.
In his own motion for summary judgment, Castelino asserts a defamation claim based on Dr. Chapman's April 7, 2015, letter charging him with academic misconduct with regard to the note sheet incident.
Dugan v. Mittal Steel USA Inc., 929 N.E.2d 184, 186 (Ind. 2010). Castelino alleges, and the Court agrees, that an accusation of academic misconduct would constitute defamation per se if it otherwise satisfied the definition of defamation.
Rose-Hulman argues that it cannot be held liable for defamation for Dr. Chapman's letter because it is privileged. Indiana law recognizes a "qualified privilege that applies to communications made in good faith on any subject matter in which the party making the communication has an interest or in reference to which he has a duty, either public or private, either legal, moral, or social, if made to a person having a corresponding interest or duty." Bals v. Verduzco, 600 N.E.2d 1353, 1356 (Ind. 1992) (citation omitted). "Absent a factual dispute, whether a statement is protected by a qualified privilege is a question of law." Id.
Id. (citations omitted).
Castelino properly concedes that Dr. Chapman's misconduct charge is the type of communication that falls under the qualified privilege; as a professor, Dr. Chapman had a duty to hold a student accountable for acts of academic misconduct, and he used the appropriate means to report his belief that Castelino had committed misconduct by "publishing" the letter to the proper individuals at Rose-Hulman. Dkt. No. 291 at 46 ("Rose-Hulman policy properly required Dr. Chapman to provide a copy of the letter to certain Rose-Hulman employees, and this would give him a qualified privilege."). Castelino argues, however, that Dr. Chapman "was on notice that [Castelino] did not lie about his notecard" and that "knowledge of the falsity of the charges exceeds the privilege." Id.
The operative question is whether Castelino has pointed to evidence from which a reasonable factfinder could conclude that Dr. Chapman's letter was written and published without belief or grounds for belief in its truth. He has not. The only evidence that Castelino points to regarding this issue is the testimony of his witness, Jessica Pinto, at the May 2015 disciplinary hearing that Castelino told Dr. Chapman that he "did not just copy and paste" his note sheet.
Rose-Hulman's motion for summary judgment also addresses the allegation in Castelino's Amended Complaint that Dr. Sutterer "withdrew his signature under false pretense and with full knowledge that the falsehood defamed Mr. Castelino," Dkt. No. 72 ¶ 94, and "By lying about his signature on Mr. Castelino's drop sheet to members of the faculty, especially the members of Mr. Castelino's Rules and Discipline Committee, Dr. Sutterer defamed Mr. Castelino in excess of any qualified privilege." Id. ¶ 185. This allegation refers to the fact that Dr. Sutterer had signed a form granting Castelino permission to drop Dr. Chapman's CE 380 course, even though the deadline for dropping courses had passed, based on Castelino's representation that Dean of Students Peter Gustafson had granted Castelino an extension of the deadline to drop the course pending the outcome of the Rules and Disciplinary Hearing. On May 12, 2015, Dr. Sutterer sent an email to Castelino and several others in which he informed Castelino that he was withdrawing his consent to drop Dr. Chapman's course because he had learned that Gustafson had not granted such an extension. In his response brief, it appears that Castelino is not alleging that Dr. Sutterer's email was defamatory, but rather that Gustafson defamed him by telling Dr. Sutterer that he had not granted the extension. Dkt. No. 264 at 5 ("But the day before, on May 11, Mr. Gustafson informed Justin that `Sometimes the Registrar grants a short extension on the final drop date if you are not able to find the instructor . . .' See Plaintiff's Exhibit 9, attached. This letter certainly implies that Mr. Gustafson supported Justin in seeking an extension. Anything to the contrary that Mr. Gustafson later told Dr. Sutterer was a defamation which Dr. Sutterer believed."). This is a gross mischaracterization of the exhibit cited by Castelino, which simply cannot be read as Gustafson extending the deadline. See Dkt. No. 264-10 (email from Gustafson to Castelino reading "I'm not sure what you decided to do about the course that you were considering dropping, but if you haven't turned it in and plan to you should do so immediately. Sometimes the Registrar grants a short extension on the final drop date if you are not able to find the instructor, but you should have seen her last Friday to get that extension. It is now past the drop date and I don't believe you've spoken to her about this."). Thus, Castelino points to no evidence that Gustafson made any false statement regarding him. Rose-Hulman therefore is also entitled to summary judgment on Castelino's defamation claim based on this incident.
Castelino points to the definition of "harassment" as that term is used in the Indiana statutes relating to the crime of stalking and argues, without elaboration, that Rose-Hulman's faculty and staff harassed him. Castelino fails to cite any authority for the proposition that Indiana recognizes a tort of "harassment" and fails to articulate what actions he believes constituted harassment, asserting only that "[t]he documents supporting Dckt ##236 and 237 prove the Defendant's faculty and staff harassed and continue to harass Justin by statutory definition. See I.C. Sec. 35-45-10-2. They further prove that suspension and consequent damages resulted." Dkt. No. 264 at 6. This falls far short of a cogent, properly supported argument. Accordingly, Rose-Hulman is entitled to summary judgment on Castelino's harassment claim.
Castelino asserts a claim for false advertising in his amended complaint, and Rose-Hulman moves for summary judgment on that claim.
Dkt. No. 291 at 45. This, too, falls far short of a cogent, properly supported argument. In any event, the Court notes that the advertisement pointed to by Castelino states that Rose-Hulman "offers individual and small group tutoring." Dkt. No. 237 at 20 (citing Dkt. No. 56-24). It does. The advertisement does not promise a tutor for every class and at any time a student wishes to consult with one. Accordingly, Rose-Hulman is entitled to summary judgment on Castelino's false advertising claim.
Castelino does not respond to Rose-Hulman's motion for summary judgment on his invasion of privacy claim. Accordingly, Castelino has pointed to no evidence to support such a claim, and Rose-Hulman is entitled to summary judgment on this claim.
Finally, Castelino argues that Rose-Hulman is liable to him for punitive damages because it maliciously failed to comply with its own student handbook, which provides that
Dkt. No. 56-10 at 53. Castelino's transcript still contains the following note: "Suspended effective end of Spring Qtr 2014-2015 through end of Fall Qtr 2015-2016." This, Castelino argues, constitutes a breach of Rose-Hulman's contract with him. Further, he argues:
Dkt. No. 237 at 34. This argument is without merit for many reasons, the most obvious of which is that Castelino's suspension has become permanent and therefore it appropriately remains noted on his transcript pursuant to the provision to which he cites. Accordingly, Rose-Hulman is entitled to summary judgment on this claim as well.
For the reasons set forth above, Castelino's motion for summary judgment (Dkt. No. 236) is
Also pending is Rose-Hulman's Motion for Sanctions and Dismissal (Dkt. No. 196). That motion is
SO ORDERED.
Id. at 552.
Dkt. No. 291 at 32.
Dkt. No. 56-22 at 5. The Court notes that while Castelino asserts in his brief that the website he cites to as evidence that Dr. Chapman was an attorney "encouraged [Castelino] to believe that he practiced [law], and as a lawyer, Dr. Chapman had credibility" when he included the information about the Fair Use Doctrine in his syllabus, Dkt. No. 291 at 18, Castelino cites to no evidence that he saw the website in question or otherwise knew that Dr. Chapman was an attorney prior to the note sheet incident. In any event, Castelino argues that this language "implied that [Castelino] could use the materials on a crib sheet permitted for an exam." Dkt. No. 291 at 18-19. It did not; it simply stated that students would not run afoul of copyright law if they used the materials for the course. Of course, Castelino was not accused of violating copyright law with his note sheet, so any statements made by Dr. Chapman regarding the Fair Use Doctrine are wholly irrelevant to the issues in this case.
