HOWARD R. LLOYD, Magistrate Judge.
Pro se plaintiff John Nkwuo is an engineer who was enrolled in a doctoral program at Golden Gate University's Ageno School of Business. According to defendants, Nkwuo was dismissed from the program because he failed to pass a mandatory qualifying exam. Nkwuo, on the other hand, believes he passed. He claims that defendants failed him because he holds different political views than his professors and because of his race and national origin. (He is an African-American who immigrated to the United States from Nigeria.) Additionally, plaintiff claims that he suffered discrimination when one professor "verbally attacked" him for being late to class (plaintiff claims he was on time) and had him administratively withdrawn from a course (plaintiff says, for no good reason). He also alleges that after he was dismissed, and without his permission, defendants accessed and used a market forecast software program that he developed for his dissertation.
Nkwuo's complaint lists or identifies the following claims for relief: breach of contract; breach of the covenant of good faith and fair dealing; plagiarism; harassment; discrimination; abuse of power and authority; hostile environment; "desparate" impact;
Now before the court is defendants' motion for summary judgment. Plaintiff opposes the motion. Upon consideration of the moving and responding papers, as well as the arguments presented at the motion hearing, this court grants the motion.
Unless otherwise noted, the following background facts, drawn from defendants' submissions,
Golden Gate University (University) is a private, not-for-profit, institution of higher education in San Francisco, California. (Fouts Decl. ¶ 5). The University confers undergraduate, graduate, and professional degrees in a number of disciplines. Relevant to Nkwuo's claims is the Doctor of Business Administration Program ("the DBA Program") offered by the University's Ageno School of Business. According to defendants, the DBA Program is a professional practice doctoral degree program, which requires high-quality scholarly written work, if a student is to succeed. (Fouts Decl., ¶9; Rageh Decl., ¶8; Curtis Decl., ¶4; Fulkerth Decl., ¶4; Robbins Decl., ¶4).
Nkwuo was admitted to the DBA Program, and he enrolled in August 2010.
Matriculation in the DBA Program is subject to the policies and procedures stated in the Doctor of Business Administration Policy and Procedures Manual ("the DBA Manual"). The DBA Manual states:
(Fouts Decl., ¶¶ 11-12; Rageh Decl., ¶¶ 10-11; Curtis Decl., ¶¶ 6-7; Fulkerth Decl., ¶¶ 6-7; Robbins Decl., ¶¶ 6-7; Hoppes Decl., ¶¶ 8-9; Ex. A at 2).
After completing certain coursework (known as the "Foundation Curriculum"), DBA students are required to pass a qualifying examination. Students who fail that exam are allowed only one retake; and, failing the examination a second time will result in automatic disqualification from the DBA program. As stated in the DBA Manual:
(Fouts Decl., ¶15; Rageh Decl., ¶14; Curtis Decl., ¶10; Fulkerth Decl., ¶10; Robbins Decl., ¶9; Ex. A at 6) (emphasis added).
Each student's response on the qualifying examination is graded anonymously by at least two members of the faculty. Each student who takes the exam is assigned an identification number before the examination, and that number is the sole piece of identifying information on the students' exam responses. The DBA Program faculty members who grade the exams do not know the numbers assigned to each DBA Program student. Those faculty members can only learn the students' identities after the exam grades have been submitted by those faculty members and finalized by the registrar. (Fouts Decl., ¶18; Rageh Decl., ¶17; Curtis Decl., ¶13; Fulkerth Decl., ¶13; Robbins Decl., ¶12). The DBA Manual states:
(Fouts Decl., ¶19; Rageh Decl., ¶18; Curtis Decl., ¶14; Fulkerth Decl., ¶14; Robbins Decl., ¶13; Ex. A at 7).
Faculty who grade the exams do not prepare or use model responses and instead use their academic judgment to apply the DBA Manual's grading criteria. Defendants say that this is because as doctoral candidates, students are required to demonstrate critical thinking and analysis when faced with a unique situation or problem. Defendants claim that providing students with model examination responses would undermine this goal of the program. (Rageh Decl., ¶26; Curtis Decl., ¶23; Fulkerth Decl., ¶30; Robbins Decl., ¶30). As stated in the DBA Manual:
(Rageh Decl., ¶28; Curtis Decl., ¶26; Fulkerth Decl., ¶33; Robbins Decl., ¶32; Ex. A at 6).
Nkwuo took the Qualifying Exam in April 2011 and again in April 2013,
Plaintiff's exam responses were graded by the same three DBA Program faculty members: Robert Fulkerth, Kerry Curtis, and Lee Robbins. Defendants say that both times Nkuwo sat for the exam, he failed to achieve a passing grade. (Fouts Decl., ¶24; Rageh Decl., ¶23; Curtis Decl., ¶¶16 and 20; Fulkerth Decl., ¶¶19 and 23; Robbins Decl., ¶¶14 and 21).
Defendants maintain that the students' qualifying examination responses in both Spring 2011 and Spring 2013, including plaintiff's, were submitted anonymously, identified only by an identification number assigned to the students. Because the examination responses were graded anonymously, defendants say that a student's personal identifying information—including race, color, and national origin—was not known to Professors Fulkerth, Curtis, or Robbins when they reviewed and graded the exams. (Curtis Decl., ¶¶ 17, 19; Fulkerth Decl., ¶¶ 20, 22; Robbins Decl., ¶¶ 15, 17). Plaintiff has presented no evidence to the contrary.
Professors Fulkerth, Curtis, and Robbins maintain that Nkwuo's exam responses (which they say they learned were submitted by him only after grading was completed) did not demonstrate the requisite skill and knowledge identified in the DBA Manual. (Curtis Decl., ¶18; Fulkerth Decl., ¶21; Robbins Decl., ¶16; Ex. A at 6). For example, they say that his exam responses did not demonstrate the critical thinking and analysis that is expected of a doctoral student, and did not show that he had the ability to conduct reasonable research. Further, they claim that clarity is an important part of both doing and presenting research; but, plaintiff's answers were unclear, such that the evaluating professors could not determine what his answers meant. (Fulkerth Decl., ¶¶ 26-27; Robbins Decl., ¶¶ 24-29).
As will be discussed more fully below, plaintiff believes that he passed the exam and that his failing grades could only have been the result of unlawful discrimination.
After receiving a failing grade on the second qualifying exam, plaintiff was subject to automatic dismissal from the DBA Program as provided in the DBA Manual. However, Dr. Nabil Rageh (DBA Program Director), with the approval of the DBA Faculty Program Committee, provided Nkwuo with an additional (third) opportunity to pass by taking an oral examination in June 2013, with the oral examination conducted by Professors Fulkerth, Curtis, and Robbins. (Fouts Decl., ¶27; Rageh Decl., ¶29; Curtis Decl., ¶¶ 29, 31; Fulkerth Decl., ¶¶ 35-36; Robbins Decl., ¶¶ 35-36).
Although the DBA Manual does not provide for a third try at the qualifying examination, defendants say it is not unprecedented. They claim that since the Spring 2010 semester, three DBA Program students, including plaintiff, have twice failed the written qualifying examination. And, each of those three students, including plaintiff, were permitted to take an oral examination as a third opportunity to pass. (Fouts Decl., ¶28; Rageh Decl., ¶30).
Once again, defendants say that based on the academic judgment of the three faculty members who conducted the oral examination, plaintiff did not demonstrate sufficient competency at his oral examination to be given a passing grade. (Fouts Decl., ¶29; Curtis Decl., ¶29; Fulkerth Decl., ¶36; Robbins Decl., ¶36).
Plaintiff argues that faculty did not identify his shortcomings or provide the grading criteria they used in evaluating his exam. (Opp. at 6). For their part, defendants point out that, in deposition, plaintiff testified that he did meet with faculty; and, while he could not remember exactly what they said, he recalled that they told him that one way to improve was to use a more qualitative (rather than quantitative) approach and to show that he had mastered research methods. (Vartain Decl., Exs. O, P, (Nkwuo Depo. 72:9-73:24, 111:19-25, 227:5-14, 238:20-23, 240:11-15, 240:22-241:2, 279:13-280:14)). Additionally, the professors told him that the exam was evaluated subjectively. (
Defendants contend that faculty members never declined to attend any meeting or phone conference with plaintiff to discuss the subject of his written qualifying examination deficiencies. (Rageh Decl., ¶48; Curtis Decl., ¶37; Fulkerth Decl., ¶42; Robbins Decl., ¶37). Additionally, defendants claim that the faculty never failed to honestly answer any question from plaintiff that concerned his qualifying examination deficiencies or "held back" any such information from him. (Curtis Decl., ¶¶38-39; Fulkerth Decl., ¶¶43-44; Robbins Decl., ¶¶38-39).
DBA Program students may appeal decisions re failure of the qualifying examination. The DBA Manual incorporates the University's General Student Grievance Procedure, a policy promulgated by the University and applicable to all University students. (Fouts Decl., ¶44; Rageh Decl., ¶39; Hoppes Decl., ¶11; Exs. A-B). The DBA Manual states:
(Fouts Decl., ¶43; Rageh Decl., ¶38; Ex A at 7).
On June 25, 2013, plaintiff filed a grievance under the General Student Grievance Procedure with the Dean of Student Affairs of the University regarding the decision to dismiss him from the DBA Program and other matters pertaining to his matriculation in the DBA Program. (Hoppes Decl., ¶¶ 13-14, Ex. F).
Dean Cherron Hoppes was appointed as the administrative/faculty reviewer for plaintiff's grievance. (Hoppes Decl., ¶4). Plaintiff was given an opportunity to submit his grievance and all supporting documents, and he subsequently confirmed that he had no further documents or evidence that he wished to submit. (Hoppes Decl., ¶¶15-16). On July 9, 2013, Hoppes emailed plaintiff to schedule a time to have a telephone conference with plaintiff with respect to his grievance. (Hoppes Decl., ¶19 Ex. H). The phone conference was scheduled for the very next day.
Hoppes avers that during the telephonic interview on July 10, 2013, she discussed with plaintiff the substantive elements of his grievance and stated that this was an opportunity for Nkwuo to present any additional information not contained in the supporting documents that he already provided. Hoppes further states that plaintiff orally explained what he said were the key facts, but at no time informed Hoppes that he wished to meet with her in person. (Hoppes Decl., ¶20).
After the conference call interview, Hoppes says that she reviewed all of the documents submitted by Nkwuo in support of his grievance and also interviewed Dr. Rageh, as well as DBA Program Coordinator Yvonne Hynes. (Hoppes Decl., ¶21). On July 31, 2013, Hoppes issued a Grievance Findings Report which she sent to Barbara Karlin (Vice President of Academic Affairs) and to plaintiff. (
(Hoppes Decl., ¶26, Ex. I). Additionally, Hoppes found: "The program was within its policies in providing feedback on the exam results and there is no substantive grievance on this issue." (
As will be discussed more fully below, plaintiff contends that defendants did not follow proper grievance procedure because they did not conduct a face-to-face meeting about his complaints.
Plaintiff claims that he was unfairly kicked out of a course taught by defendant Professor Paul Fouts. According to defendants, plaintiff was withdrawn from the course because he failed to complete a mandatory assignment that all students were required to finish before the first class.
Several weeks before the course began, Fouts sent an email to all of his students that included a copy of the syllabus and a description of the first assignment to be completed by the first class session. All students were required to read a book (to be selected from a list Fouts provided) and to prepare a 2-page review and summary of it for distribution and discussion in class. That same email said: "A warning: This assignment is mandatory, and if you do not fulfill it, you will not be allowed to continue in the course." (Fouts Decl., ¶¶ 33-37, Ex. L).
Plaintiff received Fouts' email and sent him a reply, advising as to his book choice. (Fouts Decl., ¶¶ 38-39, Ex. M). Fouts attests that Nkwuo did not complete the assignment; and, for that reason and in accordance with Fouts' standard practice in such situations, Nkwuo was administratively withdrawn from the course. (
Plaintiff claims that Fouts also "verbally attacked" him for being late on the first day of class. Plaintiff claims that he was not late. However, according to Nkwuo's own deposition testimony, the situation unfolded as follows: Plaintiff arrived at the classroom about 30 minutes early, but the classroom door was locked and no one was there. So, he went to the cafeteria to get something to eat, and returned to the classroom about 5 minutes after the class started. Nkwuo acknowledged that Fouts did not say anything about his race and that he did not recall any of his professors ever saying anything about his race. (Vartain Decl., Ex. O (Nkuwo Depo. 150:12-152:7, 153:18-22)).
Plaintiff claims that defendants accessed and used a software program that he developed for his dissertation. However, defendants aver that no defendant has used any portion of any research or academic work conducted or produced by plaintiff for their own personal gain, nor have they provided any such research or academic work to any third party for any purpose. (Fouts Decl., ¶50; Rageh Decl., ¶46; Curtis Decl., ¶35; Fulkerth Decl., ¶40; Robbins Decl., ¶40; Hoppes Decl., ¶44). Plaintiff has presented no evidence to the contrary. And, he testified that he has no knowledge that the software has been accessed or used by any person at the University. (Vartain Decl., Ex. O (Nkwuo Depo. 188:21-198:24)).
Plaintiff apparently also contends that he should have earned a masters degree in the University's M.S. in Project Systems Management program. Defendants maintain that he was not enrolled in that program and that he did not complete the required coursework to earn that degree. (Hoppes Decl. ¶¶ 36-37, Ex. I). Plaintiff previously completed a master's program in the University's Information Technology Management (ITM) program in 2009; and, he evidently believed that 6 courses (18 units) previously applied to his ITM degree could be used by the University toward a masters degree in the Project and Systems Management program. Defendants, however, say that the graduate policy for transfer of units from a previously completed master's program is limited to 12 units. (
A motion for summary judgment should be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
If the moving party meets its initial burden, the burden shifts to the non-moving party to produce evidence supporting its claims or defenses.
"When the nonmoving party has the burden of proof at trial, the moving party need only point out `that there is an absence of evidence to support the nonmoving party's case.'"
Preliminarily, the court addresses two purported procedural errors plaintiff raises in his opposition.
First, Nkwuo argues that all of defendants' declarations must be stricken because they were not sworn before a notary public and therefore have no evidentiary value. However, 28 U.S.C. § 1746 allows "the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury. . . ." And, the Advisory Committee Notes to the 2010 amendment to Fed. R. Civ. P. 56 state that "[a] formal affidavit is no longer required." Fed. R. Civ. P. 56 advisory committee's note to 2010 amendment (citing 28 U.S.C. § 1746). Plaintiff's request to strike defendants' declarations is denied.
Second, plaintiff argues that defendants' proof of service re their opening brief falsely claims that the motion papers were served on September 4, when he says he did not actually receive those papers until September 10. However, when documents are served by U.S. mail (as was the case here), then service is "complete upon mailing." Fed. R. Civ. P. 5(b)(2)(C). In reply, defendants have submitted proof, including U.S. Postal records, that their motion papers were mailed on September 4. (Teeling Decl. ¶¶ 4-5, Exs. A & B). Thus, their proof of service correctly states that the motion papers were served on September 4, notwithstanding that Nkwuo did not receive them until September 10.
As discussed, plaintiff's complaint references a claim for disparate impact. Disparate impact is a theory of discrimination that holds that policies or practices that are facially neutral or that are not intended to discriminate, in fact, have a disproportionately adverse effect on members of a protected class.
To state a claim for fraud under California law, a plaintiff must allege: (1) a misrepresentation (false representation, concealment, or non-disclosure); (2) knowledge of falsity (or scienter); (3) intent to defraud (i.e., to induce reliance); (4) justifiable reliance; and (5) resulting damage.
Nkwuo does not identify whether he is asserting discrimination under federal or state law. Either way, this court concludes that defendants are entitled to summary judgment on this claim.
Title VI of the Civil Rights Act provides, in relevant part:
42 U.S.C. § 2000d.
Similarly, California's Unruh Act provides:
Cal. Civ. Code § 51(b).
The
"[A] summary judgment motion in an Unruh Act case is governed by the burden shifting provisions established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)."
Here, defendants present declarations from University faculty, who aver that in making educational decisions about plaintiff, his race, color, and national origin were not considered. (Fouts Decl., ¶47; Rageh Decl., ¶41; Curtis Decl., ¶19; Fulkerth Decl., ¶22; Robbins Decl., ¶17; Hoppes Decl. ¶ 41). Additionally, the declarants attest that they did not say anything disparaging of Africans, African-Americans, or Nigerians, or the cultures, customs, religious practices, ethnic traditions, or racial traditions of Africans, African-Americans or Nigerians, and did not say anything disparaging of persons of black color. (Fouts Decl., ¶48; Rageh Decl., ¶44; Curtis Decl., ¶32; Fulkerth Decl., ¶38; Robbins Decl., ¶19; Hoppes Decl., ¶42).
Defendants also claim that African-American DBA Program students have successfully passed the qualifying exam at a high rate. They say that beginning in the Spring 2010 semester, there have been a total of 41 first and second attempts to pass the exam by DBA Program students, other than Nkwuo. Of those 41 attempts, 33 attempts were successful, and eight attempts were unsuccessful. Of these 41 attempts, six were made by African-American DBA Program students (other than plaintiff). Of these six attempts, five were successful, and one was unsuccessful. (Rageh Decl., ¶¶ 33-34, Ex. J).
Further, defendants say that no one involved in evaluating plaintiff was aware of his political views or political voting; asked plaintiff about his political views or voting; responded to any questions from plaintiff regarding any political views; discussed plaintiff's political views or voting with him; asked plaintiff to discuss his political views or voting; or communicated with plaintiff in any way regarding Plaintiff's political views or theirs. (Fouts Decl., ¶46; Rageh Decl., ¶43; Curtis Decl., ¶31; Fulkerth Decl., ¶37; Robbins Decl., ¶18).
For his part, plaintiff has not presented any evidence—direct or indirect—of any discrimination. Indeed, defendants point out that, in deposition, plaintiff testified that no faculty member ever mentioned his race. (Vartain Decl., Ex. O (Nkwuo Depo. 97:4-7; 152:3-7; 153:18-154:5)). Additionally, he testified that no professor ever inquired, nor did he ever mention, his political beliefs or electoral preferences. (
Instead, plaintiff hypothesizes that, because the qualifying exams are graded based on professors' academic judgment, the evaluation of his exam answers could not have been based on anything other than discriminatory motives. The only "evidence" plaintiff cites in support of this theory: In discovery he asked defendants for "all documents that define Golden Gate University grading policy (a) GGU Agno [sic] School of Business Grading policy (b) GGU Graduate Grading Policy (c) Doctoral Programs (Doctor of Business Administration) grading policy. . . ." (Opp. at 6:19-21). Additionally, plaintiff says that he asked defendants "to define Golden Gate University Doctoral Qualifying Exam Grading Criteria. . . ." (
The precise nature of plaintiff's discovery requests and defendants' objections and responses is unclear. But, even crediting plaintiff's characterization of his requests and defendants' responses as true, and generously construing Nkwuo's opposition papers, at most plaintiff has shown that evaluation of qualifying exam responses is subjective and is not accomplished by, for example, comparing a student's answers to standardized or model responses. The fact that grading is subjective does not necessarily mean it is discriminatory. Moreover, plaintiff has not refuted defendants' evidence that all exam responses, including his, were graded anonymously. Without more, plaintiff has failed to present a prima facie case of discrimination.
Even if he had succeeded in establishing a prima facie case of discrimination, defendants have presented evidence that plaintiff was dismissed from the DBA Program for a legitimate reason: Nkwuo was academically disqualified. (Fouts Decl., ¶29; Rageh Decl., ¶ 32; Curtis Decl., ¶¶ 18, 29-30; Fulkerth Decl., ¶21, 26-29, 36; Robbins Decl., ¶¶ 16, 24-29, 36). They have also presented evidence explaining that plaintiff was administratively withdrawn from Fouts' class because he failed to complete the mandatory first assignment. (Fouts Decl., ¶¶ 33-42, Exs. L, M; Vartain Decl., Exs. O, P (Nkwuo Depo. 139:7-13; 143:11-16; 145:4-13; 147:8-24; 148:11-17; 162:10-23; 213:3-7; 213:25-214:12)). And, as for Fouts' reported "verbal[] attack[]" on Nkwuo on the first day of class, plaintiff's own deposition testimony establishes that he did walk into class after it started (notwithstanding that he claims he originally arrived 30 minutes early). (Vartain Decl., Ex. O (Nkuwo Depo. 150:12-17, 151:4-16)). And, in any event, Nkwuo confirmed that Fouts said nothing about his race. (
Essentially, plaintiff believes that he passed the qualifying exam and that race discrimination is the only possible explanation for his failing grade. To successfully oppose defendants' motion, however, plaintiff must produce evidence supporting his claims. He cannot rest upon mere allegations or denials of defendants' evidence.
On this record, this court concludes that plaintiff has failed to present any evidence raising a genuine issue of material fact as to discrimination under Title VI or the Unruh Act. Defendants' motion for summary judgment as to this claim is granted.
To establish a hostile educational environment claim under Title VI, Nkwuo must show that (1) there was a racially hostile environment; (2) the school had notice of the problem; and (3) the school failed to respond adequately to redress the racially hostile environment.
Under California law, a plaintiff may bring a hostile environment claim under the Unruh Act and must show intentional discrimination in order to succeed.
Here, faculty and staff involved in decisions regarding plaintiff aver that they have never said anything disparaging of Africans, African-Americans, or Nigerians generally, and did not make any offensive jokes, slurs, epithets, or engage in name-calling or physically threatening behavior toward plaintiff specifically. (Fouts Decl., ¶¶ 48-49; Rageh Decl., ¶¶ 44-45; Curtis Decl., ¶¶ 32-33; Fulkerth Decl. ¶¶ 38-39; Robbins Decl., ¶¶ 19-20; Hoppes Decl., ¶¶ 42-43). And, as discussed above, plaintiff testified that no faculty member ever mentioned his race. (Vartain Decl., Ex. O (Nkwuo Depo. 97:4-7, 152:3-7, 153:18-154:5). In his opposition, plaintiff simply cites the Webster's Dictionary definition of "harass," and says that his claim is "well plead." (Opp. at 12:24-13:11).
Having reviewed the record, this court has found only a single reference to use of a slur. As will be discussed, however, that one reference falls short of demonstrating a hostile environment; and, plaintiff apparently did not intend it to be the basis of this lawsuit. In deposition, Nkwuo testified about hearing people use the term "coffee" to refer to African-Americans. Although he said he heard that word used in that way perhaps five times while at the University, he could not recall the circumstances (except one) and does not recall that any professors used that term. The one instance he remembered was as follows: He was on the fourth floor of the University where the DBA Program is located, in a public area of the building near the elevators. He overheard someone there say something like this: "We had—we got a copy of his resume, his resume looked good, but he's coffee." However, plaintiff did not see the speaker's face, did not know who the speaker was, and could not say for certain whether the speaker was a student, a staff member, an administrator, a faculty member, a maintenance worker, or a visitor. Other than that one instance, plaintiff could not recall any other occasion where he heard the term "coffee" used to refer to African-Americans. (Vartain Decl. Ex. O (Nkwuo Depo. 183:10-184:1, 184:17-21, 185:17-186:5, 186:16-24, 187:1-188:5)).
Plaintiff has not presented evidence creating a genuine issue of material fact that there was a racially hostile environment at the University, much less one that was severe, pervasive or persistent. Defendants' motion for summary judgment as to this claim is granted.
Plaintiff alleges that defendants violated his Fourth Amendment rights by conducting an unlawful search and seizure of his computer records. Defendants correctly point out that the Fourth Amendment "proscrib[es] only governmental action; it is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official."
Nkwuo appears to concede that the "Fourth Amendment is a government action"; but, he argues that "Golden Gate University receives, both the state and [sic] funding, but that does not authorize the University to start executing government actions of blocking students' records and denying access to s [sic] red [sic] doctoral research." (Opp. at 25:22-24). However, mere receipt of funds does not mean that the acts in question constitute state action.
Defendants' motion for summary judgment on this claim is granted.
These claims are based on Nkwuo's contention that defendants acted arbitrarily, capriciously, and in bad faith with respect to him. His complaint alleges that defendants breached their contractual obligations and the covenant of good faith and fair dealing by giving him a failing grade on his qualifying exams (he says, for discriminatory reasons); by failing to provide him with proper guidance to ensure his success in the DBA Program; and by failing to properly investigate his administrative appeal. Additionally, in his opposition brief, plaintiff argues that defendants indiscriminately cancelled classes and qualifying exams, and "acted in bad faith by kicking Plaintiff out of class,"—all of which Nkwuo says caused him to waste additional time and money in the Program.
"There is a widely accepted rule of judicial non-intervention into the academic affairs of schools."
"Evidence that (a student) was treated radically different than others in a like situation" may be relevant to a claim that a university acted arbitrarily or in bad faith."
Here, Nkwuo has offered nothing more than conclusory allegations and arguments as to these claims. Such allegations and arguments are not evidence and do not create a triable issue of material fact.
Plaintiff has not identified any classes that were cancelled, much less presented any evidence that any classes were cancelled arbitrarily, capriciously, or in bad faith.
With respect to the assertion that defendants unnecessarily cancelled qualifying exams, the record presented reveals only one cancellation re the examination that was scheduled to take place in October 2012. As noted above, defendants' explanation for the cancellation—i.e., anonymity of the grading process could not be ensured because Nkwuo was the only student who registered to take that exam—is unrefuted. (Fouts Decl. ¶¶ 31-32; Rageh Decl. ¶¶ 36-37).
Also unrefuted is defendants' reason for plaintiff's academic withdrawal from Professor Fouts' class: Plaintiff failed to complete the mandatory first assignment. (Fouts Decl., ¶¶ 33-42, Exs. L, M; Vartain Decl., Exs. O, P (Nkwuo Depo. 139:7-13, 143:11-16, 145:4-13, 147:8-24, 148:11-17, 162:10-23, 213:3-7, 213:25-214:12)).
With respect to the grading of his exam responses, Nkwuo maintains that defendants did so without any academic criteria. It is undisputed, however, that defendants gave plaintiff a gratuitous third opportunity to take the qualifying exam. And, defendants have presented evidence demonstrating that Professors Fulkerth, Curtis, and Robbins evaluated plaintiff's exam responses based on their academic judgment, as well as the criteria set out in the DBA Manual, and concluded that his exam answers were deficient. (Fouts Decl., ¶ 29; Rageh Decl., ¶ 28; Curtis Decl., ¶¶ 18, 23-27, 29; Fulkerth Decl., ¶¶ 26-34, 36; Robbins Decl., ¶¶ 16, 24-34, 36; Ex. A DBA Manual at 6). As discussed, plaintiff has not presented any evidence even suggesting that his failing grades were due to discrimination or that his dismissal from the DBA Program was without any discernable rational basis.
Plaintiff maintains that defendants never discussed the reasons why he did not pass the qualifying exam. In his opposition, plaintiff takes issue with the evaluating professors' statements that, while they do not recall the specific discussions they had with plaintiff about his exam responses, they also never "held back" information from him. Nkwuo argues that these declarations are inherently contradictory and constitute "an Admission that the Defendants never discussed the reasons for Plaintiff Qualifying Exam Failures or Plaintiff Qualifying Exam Deficiencies . . . which is a violation of Golden Gate University Doctor of Business Admission procedure and policy." (Opp. at 6:8-12). However, as discussed, plaintiff himself testified that he met with the defendant professors a number of times and received feedback from them. (Vartain Decl., Exs. O, P, (Nkwuo Depo. 72:9-73:24, 111:19-25, 227:5-14, 238:20-23, 240:11-15, 240:22-241:2, 243:13-19, 279:13-280:14)).
As for his administrative appeal, plaintiff argues that defendants failed to follow proper procedure as set out in the University's grievance policy. Here, Nkwuo argues:
(Opp. at 7:16-23;
Plaintiff has failed to raise a triable fact issue as to his contract claims or his claims for alleged abuse of power and authority. Defendants' motion for summary judgment as to these claims is granted.
These claims are based on plaintiff's allegation that defendants used software he developed, without permission, either for their own benefit or for the benefit of other students.
The basic elements of a conversion claim are "(1) the plaintiff's ownership or right to possession of personal property; (2) the defendant's disposition of the property in a manner that is inconsistent with the plaintiff's property rights; and (3) resulting damages."
As discussed, defendants have presented declarations attesting that no defendant has used any portion of any research or academic work conducted or produced by plaintiff for their own personal gain, nor have they provided any such research or academic work to any third party for any purpose. (Fouts Decl., ¶50; Rageh Decl., ¶46; Curtis Decl., ¶35; Fulkerth Decl., ¶40; Robbins Decl., ¶40; Hoppes Decl., ¶44). Additionally, defendants point out that plaintiff testified that he has no knowledge that the software has been accessed or used by any person at the University. (Vartain Decl., Ex. O (Nkwuo Depo. 188:21-198:24)). Plaintiff has presented no evidence to the contrary.
In his opposition, plaintiff alleges that defendants conspired to drop him from the DBA Program "because they felt threatened that a Black man was originating a pioneering breakthrough research in the area of financial market forecasting using Artificial Neural Network methodology; thus they conspired to kick Plaintiff out of the DBA program and [sic] so that they could convert Plaintiff [sic] research to profit by having white man author the research." (Opp. at 14:13-17). However, he offers no evidence to support this theory, and mere allegations are not enough to overcome a summary judgment motion.
Defendants' motion for summary judgment as to these claims is granted.
A successful claim for intentional infliction of emotional distress requires "(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct."
Plaintiff has not presented evidence giving rise to a genuine issue of material fact that any defendant engaged in the extreme behavior required to establish a claim for intentional infliction of emotional distress. All defendants aver that they have never harbored any ill will toward Nkwuo and did not at any time intend to cause emotional distress. (Fouts Decl., ¶ 51; Rageh Decl. ¶ 47; Curtis Decl. ¶ 36; Fulkerth Decl. ¶ 41; Robbins Decl. ¶ 41; Hoppes Decl. ¶ 45). And, as discussed, defendants have presented unrefuted evidence that plaintiff was dismissed from the program because he failed to achieve a passing grade on the mandatory qualifying exam. Plaintiff has offered nothing (other than conjecture) that defendants did so out of intent to harm his interests.
Defendants' motion for summary judgment on this claim is granted.
Based on the foregoing, defendants' motion for summary judgment is GRANTED. All previously scheduled deadlines and appearances are vacated. The Clerk shall enter judgment for defendants and close the file.
SO ORDERED.
