Appellee Brief: Prianka Bose v. Roberto Bea, Et Al

Case: 18-5936 Document: 31 Filed: 01/15/2019 Page: 1
United States Court of Appeals

For the Sixth Circuit
CASE NO. 18-5936
PRIANKA BOSE,
Plaintiff-Appellant,
v.
ROBERTO DE LA SALUD BEA AND

RHODES COLLEGE,
Defendants-Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE, WESTERN DIVISION
Hon. John T. Fowlkes, Jr., Case No. 2:16-cv-02308-JTF-tmp
BRIEF OF APPELLEES
Lisa A. Krupicka
Gary S. Peeples
Sarah E. Smith
BURCH, PORTER & JOHNSON, PLLC
130 North Court Avenue
Memphis, TN 38103
(901) 524-5000 (T)
(901) 524-5024 (F)
lkrupicka@bpjlaw.com
gpeeples@bpjlaw.com
ssmith@bpjlaw.com
Counsel for Appellees

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Disclosure of Corporate Affiliations

and Financial Interest
Sixth Circuit
Case Number: Case Name:
Name of counsel:
Pursuant to 6th Cir. R. 26.1,

Name of Party
makes the following disclosure:
1. Is said party a subsidiary or affiliate of a publicly owned corporation? If Yes, list below the
identity of the parent corporation or affiliate and the relationship between it and the named
party:
2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest
in the outcome? If yes, list the identity of such corporation and the nature of the financial
interest:
CERTIFICATE OF SERVICE
I certify that on _____________________________________ the foregoing document was served on all

parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not,
by placing a true and correct copy in the United States mail, postage prepaid, to their address of record.
s/
This statem ent is filed twice: when the appeal is initially opened and later, in the principal briefs,
im m ediately preceding the table of contents. See 6th Cir. R. 26.1 on page 2 of this form .
6CA-1
8/08 Page 1 of 2
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Disclosure of Corporate Affiliations

and Financial Interest
Sixth Circuit
Case Number: Case Name:
Name of counsel:
Pursuant to 6th Cir. R. 26.1,

Name of Party
makes the following disclosure:
1. Is said party a subsidiary or affiliate of a publicly owned corporation? If Yes, list below the
identity of the parent corporation or affiliate and the relationship between it and the named
party:
2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest
in the outcome? If yes, list the identity of such corporation and the nature of the financial
interest:
I certify that on _____________________________________ the foregoing document was served on all

parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not,
by placing a true and correct copy in the United States mail, postage prepaid, to their address of record.
s/
This statem ent is filed twice: when the appeal is initially opened and later, in the principal briefs,
im m ediately preceding the table of contents. See 6th Cir. R. 26.1 on page 2 of this form .
6CA-1
8/08 Page 1 of 2
TABLE OF CONTENTS
TABLE OF CONTENTS ......................................................................................... i
TABLE OF AUTHORITIES ................................................................................. iii
STATEMENT REGARDING ORAL ARGUMENT ............................................ 1
STATEMENT OF ISSUES .................................................................................... 2
STATEMENT OF THE CASE ............................................................................... 3
I. FACTS………………………………………………………………3
A. Ms. Bose’s Matriculation at Rhodes College………………...3
B. Organic Chemistry………………………….………………..5
C. Dr. Bea’s Suspicions Regarding Ms. Bose’s Conduct…....….6
D. Honor Council Proceedings…............................................…10
E. Allegations of Harassment/Retaliation...............................….12
F. Appeal to the FAC.………………………….……………….14
G. Ms. Bose’s Title IX Complaint……………...……………….17
II. PROCEDURAL HISTORY.…………………………………….....18
SUMMARY OF THE ARGUMENT ................................................................... 23
ARGUMENT ........................................................................................................ 24
I. THE DISTRICT COURT CORRECTLY CONCLUDED THAT MS.

BOSE’S TITLE IX RETALIATION CLAIM FAILS BECAUSE IT
RELIES SOLELY ON PRINCIPLES OF VICARIOUS LIABILITY
NOT AVAILABLE IN TITLE IX ACTIONS…………………….24
i
A. Standard of Review………………………...……………….24
B. The Supreme Court in Gebser Emphasized Title IX’s History

and Unique Statutory Structure……………………………..24
C. It Is Well-Settled Law That the Cat’s Paw Theory of Liability

Is a Principle of Agency Law, Not a Free-Floating Theory of
Causation Lurking Outside the Universe of Vicarious Liability
Principles……………………………………………………29
D. A Deliberate Indifference Theory of Liability Is Unavailable to

Ms. Bose on Appeal and Unavailing in Any Event…………38
II. MS. BOSE’S DEFAMATION CLAIM WAS CORRECTLY

DISMISSED………………………………………………………..40
A. Standard of Review………………………...………………..40
B. The Defamation Claim Fails Because Ms. Bose Cannot

Demonstrate Publication, an Essential Element of the Tort...41
C. Rhodes College’s Honor Council Proceedings Are Quasi-

Judicial, and the Absolute Privilege Applies………………..43
CONCLUSION…………………………………………………………..……....50
CERTIFICATE OF COMPLIANCE...…………………………………………..52
CERTIFICATE OF SERVICE…………………………………………………..53
DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS ……....54
ii
TABLE OF AUTHORITIES
Cases Page
Brown v. Raymond Corp.,

432 F.3d 640 (6th Cir. 2005)……………………………………...............24
Brown v. VHS of Mich., Inc.,

545 F. App’x 368 (6th Cir. 2013)……………………………………....…38
Brundage v. Cumberland Cnty.,

357 S.W.3d 361 (Tenn. 2011)………………………...…………………..46
Chew v. City & Cnty. of San Francisco,

2016 WL 631924 (N.D. Cal. Feb. 17, 2016)………….....………………..33
Cooper Indus., Inc. v. Aviall Servs., Inc.,

543 U.S. 157 (2004)…………………………………………………...….37
Corell v. CSX Transp., Inc.,

378 F. App’x 496 (6th Cir. 2010)……………………………………...….24
Davis v. Monroe Cnty. Bd. of Educ.,

526 U.S. 629 (1999)……………......………………………...........29, 36-37
DeNoma v. Hamilton Cnty. Court of Common Pleas,

626 F. App’x 101 (6th Cir. 2015)……………………………………..32, 34
Dixon v. Clem,
492 F.3d 665 (6th Cir. 2007)…………………………………………...…24
Dolan v. Penn Millers Ins. Co.,

2014 WL 2047897 (M.D. Pa. May 19, 2014) …………...………………..32
Emeldi v. Univ. of Oregon,

698 F.3d 715 (9th Cir. 2012)…………………………………………...…36
Files v. DeKalb Cnty. Sch. Dist.,

2012 WL 716055 (N.D. Ga. Mar. 5, 2012) ... …………...………………..34
iii
Foster v. Michigan,
573 F. App’x 377 (6th Cir. 2014)..…………………..………..………28-29
Franklin v. Gwinnett Cnty. Pub. Schs.,

503 U.S. 60 (1992)…………………………………..………..………..…26
Gardner v. GMAC, Inc.,

796 F.3d 390 (4th Cir. 2015)…………………………………………...…38
Gebser v. Lago Vista Indep. Sch. Dist.,

524 U.S. 274 (1998)…………………………………………..……...passim
Grenier v. Cyanamid Plastics, Inc.,

70 F.3d 667 (1st Cir. 1995)………………….....……………..………..…39
Hartman v. Keri,
883 N.E.2d 774 (Ind. 2008) .... ...………………………...……………47-48
Hensley Mfg. v. ProPride, Inc.,

579 F.3d 603 (6th Cir. 2009)…………………...……………..……….40-41
Jackson v. City of Centreville,

899 F. Supp. 2d 1209 (N.D. Ala. 2012)………………...……………..33-34
Keene Corp. v. Int’l Fid. Ins. Co.,

736 F.2d 388 (7th Cir. 1984)…………………...……………..………..…39
Klemencic v. Ohio State Univ.,

263 F.3d 504 (6th Cir. 2001)…………………...……………....…28, 39 n.8
Lambdin Funeral Serv., Inc. v. Griffith,

559 S.W.2d 791 (Tenn. 1978)………………………...…………………..47
Liles v. C.S. McCrossan, Inc.,

851 F.3d 810 (8th Cir. 2017)…………………...……………..……….30-31
Manuele v. City of Jennings,

2012 WL 113538 (E.D. Mo. Jan. 13, 2012) . ……………………………..34
iv
Martin v. Dean,
2008 WL 11324082 (N.D. Ga. Oct. 21, 2008) ..... ………………………..31
M.D. ex rel. Deweese v. Bowling Green Indep. Sch. Dist.,

709 F. App’x 775 (6th Cir. 2017)……………..………..…35-36, 39 n.8, 40
Monell v. Dep’t of Social Servs. of City of New York,

436 U.S. 658 (1978)…………………………………..……....……….32-34
Myers v. Pickering Firm, Inc.,

959 S.W.2d 152 (Tenn. Ct. App. 1997) …………………………………..46
Papelino v. Albany Coll. of Pharmacy,

633 F.3d 81 (2d Cir. 2011)……………………………...……………..36-37
Perzynski v. Cerro Gordo Cnty.,

953 F. Supp. 2d 916 (N.D. Iowa 2013) …………………………………..33
Phillips v. Anderson Cnty. Bd. of Educ.,

2006 WL 3759893 (E.D. Tenn. Dec. 19, 2006)………………………29, 40
Richardson v. Wayne State Univ.,

587 F. App’x 284 (6th Cir. 2014)……………………………………...….29
Rinard v. Luoma,
440 F.3d 361 (6th Cir. 2006)……………………...…………………...….37
Rooney v. Rock-Tenn Converting Co.,

878 F.3d 1111 (8th Cir. 2018)…………………......…………………..30-31
Siegfried v. Grand Krewe of Sphinx,

2003 WL 22888908 (Tenn. Ct. App. Dec. 2, 2003)………………..……..41
Staub v. Proctor Hosp.,

562 U.S. 411 (2011)…………………………………..……....………34 n.7
United States v. Romitti,

363 F.2d 662 (9th Cir. 1966)…………………......………………..…..….31
v
Voltz v. Erie Cnty.,

617 F. App’x 417 (6th Cir. 2015)……………………………………...….31
Yeung v. Maric,
232 P.3d 1281 (Ariz. Ct. App. 2010)…......…………………………...…..49
Yong Li v. Reade,
746 F. Supp. 2d 245 (D. Mass. 2010)…......…………………………...31-32
Z.J. v. Vanderbilt Univ.,

___ F. Supp. 3d ___, 2018 WL 6694866 (M.D. Tenn. Dec. 19, 2018)..41-42
Statutes
20 U.S.C. § 1681 et seq. (Title IX) ................................................................ passim
38 U.S.C. § 4301 et seq. (USERRA) .............................................................. 34 n.7
42 U.S.C. § 1983 .............................................................................................. 32-34
42 U.S.C. § 2000e et seq. (Title VII) ............................................................. passim
Rules
Fed. R. Civ. P. 12(b)(6).................................................................................... 40-41
Fed. R. Civ. P. 56(a).…………………………………………………………….24
Other Authorities
Restatement (Second) of Agency, § 219(2)(d) (1957) ......................................... 26
vi
STATEMENT REGARDING ORAL ARGUMENT
Appellees Roberto de la Salud Bea (“Dr. Bea”) and Rhodes College
(“Rhodes” or “Rhodes College”) do not request oral argument and do not believe
that oral argument is warranted in this case because it involves the straightforward
application of well-settled principles of federal and state law.
1
STATEMENT OF ISSUES
I. Whether the District Court correctly concluded that Appellant Prianka
Bose’s (“Ms. Bose”) Title IX retaliation claim against Rhodes College fails
because the claim rests entirely on the application of vicarious liability
principles, which the Supreme Court has held are unavailable in Title IX
actions.
II. Whether the District Court’s Rule 12(b)(6) dismissal of Ms. Bose’s
defamation claim against Dr. Bea should be affirmed on the ground that Ms.
Bose cannot, as a matter of law, demonstrate the publication element of the
tort.
III. Whether the District Court’s Rule 12(b)(6) dismissal of Ms. Bose’s
defamation claim should be affirmed because Rhodes College’s Honor
Council proceedings are, in light of those proceedings’ numerous pre-
defined standards and significant protections accorded to accused students,
quasi-judicial in nature with the result that statements made in the course of
those proceedings cannot form the basis of a defamation claim.
2
STATEMENT OF THE CASE
I. FACTS
A. Ms. Bose’s Matriculation at Rhodes College
Rhodes College is a private liberal arts college founded in 1848 and located
in Memphis, Tennessee. Since its inception, Rhodes has governed student
academic conduct by an Honor Code administered by students elected by the
student body to serve on the Rhodes Honor Council. (Rhodes’s Trial
Memorandum, RE 161, Page ID # 1975). Rhodes provides training to Honor
Council members at the beginning of each academic year regarding process and
conducting investigations. (Ex. C to Defendants’ Statement of Undisputed
Material Facts in Support of Motion for Summary Judgment (“DSUMF”), RE 116-
4, Page ID # 1233). The procedural protections afforded to Rhodes students in
connection with Honor Council proceedings are set forth in the Honor Council
Constitution. (Ex. B to Rhodes’s Trial Memorandum, RE 161-2, Page ID ## 2022-
31).
Rhodes College is a federal funding recipient. Accordingly, Rhodes
maintains a Title IX policy administered by its Title IX Coordinator, who during
the time period relevant to this case was Claire Shapiro (“Ms. Shapiro”). (Ex. A to
Rhodes’s Trial Memorandum, RE 161-1, Page ID ## 1994-2021). Students may
report conduct that they believe to be in violation of Title IX through a number of
3
avenues, including by filling out a complaint form online, reporting directly to Ms.
Shapiro, or reporting to a Rhodes College faculty member. (Id. at Page ID ##
1996-97).
Ms. Bose attended Rhodes from fall semester 2013 through the end of fall
semester 2015. (Ex. A to DSUMF, RE 116-2, Page ID # 1016). While she was
enrolled at Rhodes, Ms. Bose was a member of the varsity tennis team, a member
of Kappa Delta sorority, and had a work study job as a teaching assistant in the
Biology Department. (Ex. B to DSUMF, RE 116-3, Page ID ## 1085-86).
In her sophomore year at Rhodes, Ms. Bose applied for and was accepted
into the Rhodes College/George Washington University Early Selection Program
(“GW Program”). (Id. at Page ID # 1084). Rhodes students who apply to the GW
Program go through a selection process and, if chosen, are offered a contract with
George Washington University that, if they abide by all of the terms of the
contract, results in guaranteed admission to its medical school without having to
take the Medical College Admission Test. (Ex. C to DSUMF, RE 116-4, Page ID
# 1240); (Ex. B to DSUMF, RE 116-3, Page ID # 1084). The requirements of the
GW Program are stringent; they include maintaining a 3.6 grade point average for
the remainder of an accepted student’s time at Rhodes, achieving grades in the
required science courses of not less than a B-minus, and reporting any
4
substantiated allegations of academic misconduct that arise while the student is
attending Rhodes. (Ex. C to DSUMF, RE 116-4, Page ID # 1240).
B. Organic Chemistry
In spring semester 2015, Ms. Bose was a student in Organic Chemistry I,
which was taught by Dr. Bea. (Ex. B. to DSUMF, RE 116-3, Page ID # 1087).
Ms. Bose was involved in a serious car accident in late January 2015 that resulted
in a concussion protocol being established for her by Rhodes, pursuant to which
she was given extra time to take quizzes and tests and was allowed to take them in
a quiet environment outside of a regular classroom. (Id. at Page ID # 1088). For
Dr. Bea’s class (Organic Chemistry I), the quiet environment provided under the
concussion protocol was his office. (Id. at Page ID # 1089).
In fall semester 2015, Ms. Bose took Organic Chemistry II from Dr. Bea.
This lecture class requires an accompanying laboratory class. Dr. Bea taught a
laboratory class, but Ms. Bose was not in his section. (Ex. C to DSUMF, RE 116-
4, Page ID # 1235). Ms. Bose’s section of the laboratory class was taught by Dr.
Kimberly Brien (“Dr. Brien”). (Id.)
For Organic Chemistry II, Ms. Bose was no longer on a concussion protocol.
(Ex. B. to DSUMF, RE 116-3, Page ID # 1090). Ms. Bose, however, arranged
with Dr. Bea to take numerous quizzes and tests in his office at a time and/or on a
date earlier than the rest of the class. (Id.) The reason for this was that Dr. Bea
5
always scheduled his quizzes and tests for Fridays, and Ms. Bose routinely left
town on Fridays for various reasons. (Id.)
Ms. Bose took every quiz and test in Organic Chemistry II early in Dr. Bea’s
office except for Quiz 2 and Midterm 2, the latter of which was an open-book,
take-home exam. (DSUMF, RE 116-1, Page ID ## 1006-07); (Ex. B to DSUMF,
RE 116-3, Page ID ## 1091-1108). When Ms. Bose took a quiz or test early, she
would arrive at Dr. Bea’s office between 7:30 and 7:45 a.m.; Dr. Bea would then
provide Ms. Bose with the quiz or test and would leave shortly before 8:00 a.m. to
teach class or proctor the quiz or test for the rest of the class. (Ex. C to DSUMF,
RE 116-4, Page ID # 1236). When Dr. Bea returned to his office after class, Ms.
Bose would be gone, leaving her completed quiz or test in his office. (Id. at Page
ID # 1237).
It was Dr. Bea’s practice to leave his laptop computer in his office without
logging off when he went downstairs to teach class or proctor a quiz or test. (Id. at
Page ID # 1238). This would have allowed a user unfettered access to Dr. Bea’s
laptop without the necessity of knowing Dr. Bea’s password. (Id.)
C. Dr. Bea’s Suspicions Regarding Ms. Bose’s Conduct
Ms. Bose took Quiz 4 on the scheduled day, November 13, 2015, in Dr.
Bea’s office approximately one half-hour before the rest of the class took it
because she had to leave early to attend a meeting of an environmental non-profit
6
group with which she was volunteering. (Ex. B to DSUMF, RE 116-3, Page ID #
1097). When Dr. Bea returned to his office, he noticed that the answer key to Quiz
4 was open on his laptop screen in a larger view/zoom level than he typically uses.
(Transcript of Proceedings, RE 44, Page ID # 478). This made Dr. Bea suspicious;
so for the next test, Midterm 3, which Ms. Bose also requested to take early in Dr.
Bea’s office on the day of the test, he logged off his computer before going
downstairs to administer Midterm 3 to the rest of the class. (Ex. C to DSUMF, RE
116-4, Page ID # 1239).
At some point while taking Midterm 3 on November 20, 2015, Ms. Bose
came downstairs from Dr. Bea’s office to the classroom to ask Dr. Bea a question.
(Ex. B to DSUMF, RE 116-3, Page ID ## 1102, 1104). Dr. Bea testified that Ms.
Bose came downstairs and asked him if she could borrow his laptop to send an
email (Ex. C to DSUMF, RE 116-4, Page ID # 1239); Ms. Bose testified that she
asked Dr. Bea if she could use her own phone to send the email but then changed
her mind. (Ex. B to DSUMF, RE 116-3, Page ID ## 1102-03). After the question
was asked, Ms. Bose returned to Dr. Bea’s office to resume taking Midterm 3. (Id.
at Page ID # 1104).
Again suspicious, Dr. Bea followed Ms. Bose upstairs and found his office
door shut, which automatically locks the door. (Id. at Page ID # 1105). The door
is usually left cracked open when a student is inside Dr. Bea’s office taking a quiz
7
or test. (Id.) When Dr. Bea used his key to enter his office, he found Ms. Bose not
in her seat taking the test but instead standing beside his desk. (Id. at Page ID #
1106). Dr. Bea asked Ms. Bose if she needed scratch paper; she said “no” and he
left his office. (Id.) Shortly after this encounter, Ms. Bose came downstairs and
finished taking Midterm 3 with the rest of the class. (Id. at Page ID ## 1106-07).
Ms. Bose scored a 74 on Midterm 3 (see id. at Page ID # 1108), which was
roughly 20 points lower than her score on any other quiz or test in Organic
Chemistry II.1 At this point, Dr. Bea was highly suspicious that Ms. Bose was
accessing the answer keys on his laptop to cheat on the quizzes and tests she took
in his office. In discussing his suspicions with some of his Chemistry Department
colleagues, Dr. Brien suggested to Dr. Bea that he create a fake answer key, put it
on his laptop, stay logged on, and see if Ms. Bose used it to answer the questions
on the next quiz. (Transcript of Proceedings, RE 44, Page ID ## 525-26).
Quiz 5 was scheduled for December 4, 2015, but Ms. Bose asked to take it
two days early (i.e., on December 2, 2015) in Dr. Bea’s office so that she could go
to Atlanta for her sister’s birthday party. (Ex. B to DSUMF, RE 116-3, Page ID #
1108). On November 26, 2015, Dr. Bea created a fake answer key for Quiz 5,
which he named “F15 Quiz5 amswers.doc,” deliberately misspelling the word
1
Ms. Bose’s other scores in Organic Chemistry II up to that point were: 120%
(Quiz 1 with bonus points); 94% (Midterm 1); 120% (Quiz 2 with bonus points);
96% (Quiz 3); 97% (Midterm 2); and 92% (Quiz 4). (DSUMF, RE 116-1, Page ID
## 1006-07); (Ex. B to DSUMF, RE 116-3, Page ID ## 1091-1108).
8
“answers” so that he could distinguish it from the real answer key. Two of the
reactions that Dr. Bea included as answers in the fake answer key, “intramolecular
synthesis of Gabriel” and the formation of acetal with two alcohols, do not exist
and were completely made up by Dr. Bea. (Transcript of Proceedings, RE 44,
Page ID # 484).
When Dr. Bea graded Ms. Bose’s quiz on December 2, 2015, he found that
her answers to Quiz 5 matched the fake answer key, even down to copying the
fictitious reactions. (Id. at Page ID ## 486-87). Dr. Bea went to see Dr. Mauricio
Cafiero (“Dr. Cafiero”), Chair of the Chemistry Department, to ask him what to
do; Dr. Cafiero recommended that Dr. Bea contact Rhodes’s administration for
further guidance. (Id. at Page ID # 487). Next, at 11:03 a.m. on December 2,
2015, Bea sent the following email to Kathleen Laakso (“Ms. Laakso”), an
Associate Dean of Students for Rhodes College. The email states in pertinent part:
I noticed several unusual things going on in my office

that are long to explain but the bottom line is that I
suspected Prianka was opening the answer keys for the
exams and quizzes from my computer and getting the
answers from them. It was all circumstan[t]ial. To test
this possibility I have prepared a fake answer key for the
last quiz and she took the quiz this morning as usual. She
got exactly the same fake [ ] mostly made up and thus
incorrect) answers I had prepared. . . . Furthermore, I
notice my roster with grades I had in my desk had been
modified from the original grades I had on them. (the
9
failed exam was 47 point[s] originally2 and it showed

now 77 points and a pop quiz she got 4 points now says 6
points). She is cheating all the way!
(Ex. D to DSUMF, RE 116-4, Page ID # 1246). After learning that Ms. Laakso
was out of the office, Dr. Bea sent the same email to another Associate Dean of
Students, John Blaisdell. (Id. at Page ID # 1248).
D. Honor Council Proceedings
The matter was taken up for investigation by the Rhodes College Honor
Council on December 4, 2015, when Regan Adolph (“Ms. Adolph”), President of
the Honor Council, sent Ms. Bose a letter informing her that she was under
investigation for a suspected violation of the Honor Code, more specifically
cheating on multiple assignments in Organic Chemistry II. (Ex. B to DSUMF, RE
116-3, Page ID # 1109).
On that same day, Ms. Bose received an email from Mitchel Trychta (“Mr.
Trychta”), the Honor Council member assigned to investigate the allegations
against Ms. Bose, asking to set up a time to interview her. (Id.) In all, Ms. Bose
was interviewed three times by Mr. Trychta, and she reviewed and approved type-
written summaries of what she had told him. (Id. at Page ID ## 1110-14). Mr.
Trychta also showed Ms. Bose the fake answer key and gave her an opportunity to
explain her answers on Quiz 5 in detail. (Id. at Page ID ## 1114-15). At no time
2
It was later determined that Dr. Bea had transposed the numbers and Ms. Bose’s
actual grade was 74.
10
during any of the interviews did Ms. Bose mention to Mr. Trychta that Dr. Bea had
made inappropriate comments to her or suggest to Mr. Trychta that Dr. Bea had an
ulterior motive for accusing her of cheating. (Id. at Page ID ## 1116-17).
On December 14, 2015, Ms. Adolph emailed Ms. Bose a hearing packet
containing the following documents: Dr. Bea’s statement and an addendum to his
statement; Ms. Bose’s statement and an addendum to her statement; Quiz 5; Quiz 5
notes; the fake answer key; the real answer key; Dr. Bea’s handwritten grade
roster; Dr. Bea’s electronic grade roster; a screenshot of the Desktop portion of Dr.
Bea’s laptop; and Dr. Bea’s syllabus for Organic Chemistry II. (DSUMF, RE 116-
1, Page ID # 1010).
The Honor Council hearing was held on December 17, 2015. (Ex. B to
DSUMF, RE 116-3, Page ID # 1119). That hearing, which lasted approximately
five hours, was recorded and transcribed by a court reporter. (DSUMF, RE 116-1,
Page ID # 1010). At the hearing, Ms. Bose called the following witnesses:
Chelsea Dezfuli (“Ms. Dezfuli”) (a classmate and friend of Ms. Bose’s); Matthew
Chapman (represented to the Honor Council by Ms. Bose as her Chemistry tutor
without disclosing that he was also her boyfriend); Vinay Bose (Ms. Bose’s father,
represented to the Honor Council as a medical doctor but who is not in fact
licensed to practice medicine in the United States); Joel Shimkus, Ph.D. (a
chemistry professor retained by Ms. Bose’s father through wyzant.com, an online
11
chemistry tutoring service); and Brian Lawrence, Ph.D. (a chemistry professor also
retained by Ms. Bose’s father through wyzant.com). (Ex. B to DSUMF, RE 116-3,
Page ID ## 1120-23, 1139).
All of the witnesses Ms. Bose called at the Honor Council hearing were
there to address the issue of how Ms. Bose could somehow have arrived at the
answers to Quiz 5 independently (i.e., without cheating). None of Ms. Bose’s
witnesses were aware that there was a fake answer key until they were asked about
it during the hearing. (Id. at Page ID # 1118).
E. Allegations of Harassment/Retaliation
With one exception, none of the alleged inappropriate comments that Ms.
Bose now attributes to Dr. Bea were disclosed to the Honor Council during the
hearing, including the alleged dinner invitation and the alleged questions about Ms.
Bose’s boyfriend in the summer of 2015 (first mentioned by Ms. Bose in her
appeal to the Faculty Appeals Committee (“FAC”) in January 2016); claims that
Dr. Bea had regularly called Ms. Bose “pretty,” “beautiful,” and complimented her
on her clothing (first mentioned by Ms. Bose in her deposition in this case, which
occurred in July 2017); claims that Dr. Bea had visited her laboratory section for
the sole purpose of talking to her (first mentioned by Ms. Bose in her appeal to the
FAC); claims that Dr. Bea had asked her to be his research assistant (first
mentioned by Ms. Bose in her appeal to the FAC); and claims that Dr. Bea had
12
asked her what she characterizes as inappropriately “personal” questions “about
her family, her sorority, and whether she attended parties on campus” (first
mentioned by Ms. Bose in her appeal to the FAC).
The lone mention at the Honor Council hearing of any purportedly
inappropriate conduct by Dr. Bea was made by Ms. Bose during her closing
argument. Ms. Bose told the Honor Council that the following incident had taken
place on November 19, 2015, which would be after Ms. Bose took Quiz 4 and the
day before she took Midterm 3:
I have a witness for a specific incident in the Rat [i.e., the

Refectory] where Dr. Bea came up to me and looked at
my phone, which is a very personal item, and says, oh, is
that your boyfriend, and proceeded to ask me a question
about my boyfriend and then he just walked away. This
witness and I both looked at each other, and we both
explained that it was odd and very strange. I had never
talked about my boyfriend to Dr. Bea and, as he just
stated, he didn’t know I had one. Right after this incident
happened, I walked up to Dr. Bea and I told him, I feel
uncomfortable with you asking questions about my
boyfriend. Please, let’s not talk about any personal stuff
anymore. And then he got angry and walked away.
I have a witness for all these events.3 I will not say the
student’s name out of courtesy to them, but they would
be willing to speak with all of you about this certain
incident. It’s an incident that we both think is quite
strange.
3
This witness is Ms. Dezfuli, Ms. Bose’s classmate and friend who had already
testified on Ms. Bose’s behalf at the hearing but had not been asked by Ms. Bose
about this alleged incident. Ms. Bose tried to recall Ms. Dezfuli after the hearing
was over, but was not permitted to do so. (DSUMF, RE 116-1, Page ID # 1011).
13
I don’t know why my quiz matches Dr. Bea’s answer

key. I can only tell you all the events that I remember, all
the situations that I remember between Dr. Bea and I.
This particular event, as Dr. Bea just said, why didn’t you
say this earlier, I told him he’s one of my favorite
teachers and I didn’t really think anything of it. I didn’t
think it was something I needed to report, but I did think
it was strange and it made me uncomfortable, and I
directly addressed it with him at the time.
This is not the first time that an ego-hurt professor would

harm a student. And there are many instances in --- at
other colleges where something like this has happened. I
can’t speak for his rationale or what’s really happening
here, but I can only give you what I have, and he can
only give you what he has.
(Ex. E to DSUMF, RE 116-4, Page ID # 1253).
The Honor Council found Ms. Bose “In Violation” of the Honor Code with
respect to cheating and stealing and imposed the penalty of expulsion. (Ex. B to
DSUMF, RE 116-3, Page ID ## 1129-30). Ms. Bose appealed the Honor
Council’s decision to the FAC. (Id. at Page ID # 1130).
F. Appeal to the FAC
Through her counsel, Ms. Bose submitted an appeal statement for
consideration by the FAC. (Ex. A to DSUMF, RE 116-2, Page ID ## 1053-73).
This submission described Ms. Bose’s sexual harassment allegations against Dr.
Bea as follows:
14
(a) In July 2015, Ms. Bose and Dr. Bea had a

conversation in which he asked her “many personal
questions, including where she was staying on campus,
how she was spending her evenings, whether she had
friends staying with her during the summer, and how her
relationship with her boyfriend was. Bea then invited
[Ms. Bose] to dinner with him. Ms. Bose declined his
invitation, and the conversation ended.”
(b) “Bea would show up in [Ms. Bose’s] lab course

every week. Without being solicited by [Ms. Bose], Bea
would make it a point to stop by [Ms. Bose’s] desk, look
at her work, correct any lab mistakes without being asked
and speak to her prior to leaving.”
(c) “Around the third week of November 2015 …,

[Ms. Bose] was sitting with a classmate in the Catherine
Burrow Refectory texting on her cell phone. Dr. Bea
approached [Ms. Bose] from behind, leaned over her
shoulder, and abruptly asked her, ‘Are you texting your
boyfriend?’ before leaving the Refectory.”
(Id. at Page ID ## 1056-59).
Ms. Bose’s submission to the FAC contended that Dr. Bea retaliated against
Bose for objecting to this alleged conduct “via a baseless allegation of cheating.”
(Id. at Page ID # 1054). At the FAC hearing, which was held on January 28, 2016
and was transcribed by a court reporter, Ms. Bose argued that there was no proof
other than Dr. Bea’s word that he created the fake answer key before she took Quiz
5, rather than after. (Ex. F to DSUMF, RE 116-4, Page ID # 1259).
As required by the rules, the Honor Council (through Ms. Adolph) submitted
a written response to Ms. Bose’s appeal, stating in pertinent part as follows:
15
The council found clear and convincing evidence that

Prianka had stolen answers, most convincingly on Quiz
5, from Dr. Bea’s computer and used them to cheat. The
evidence was overwhelmingly [sic]. Her answers
matched verbatim to an incorrect answer key, which Dr.
Bea left on his computer after earlier suspicions of her
cheating led him to believe that she was taking advantage
of his trust while taking quizzes in his office. Dr. Bea,
wanting the incorrect answers to the quiz to be
believable, did not make the entire key incorrect but did
include made up chemical reactions and answers that no
one else in the class put.
With expert witnesses testifying to the near impossible

odds of her answers, answers which are an extreme
aberration of a student performing at her level (having
had a 106% average in the class), answers which no one
else put, and answers which were completely made up,
the Council was left to see that Prianka had in fact stolen
the answers by entering Dr. Bea’s computer and cheated.
(Ex. A to DSUMF, RE 116-2, Page ID ## 1079-80).
Following the hearing (which Ms. Bose and her counsel attended), the FAC
upheld the Honor Council’s finding that Ms. Bose was “In Violation” of the Honor
Code, and remanded the case to the Honor Council for reconsideration of only the
penalty in light of new evidence that Ms. Bose presented at the FAC hearing
concerning the (supposedly) lost copies of her tests in Organic Chemistry II.
(DSUMF, RE 116-1, Page ID # 1012).
The FAC concluded that, even if the allegations of inappropriate behavior by
Dr. Bea were valid, there was still sufficient evidence for the Honor Council to
16
reach the conclusion that Ms. Bose had in fact cheated in Organic Chemistry II.
(Id.) Upon remand, the Honor Council upheld the penalty of expulsion. (Id. at
Page ID # 1013).
G. Ms. Bose’s Title IX Complaint
In January 2016, Ms. Bose and her family talked to Ms. Shapiro about filing
a Title IX complaint against Dr. Bea. (Id.) Ms. Shapiro instructed Ms. Bose to put
her complaint in writing using Rhodes’s online reporting system, and Ms. Bose did
so on February 11, 2016. (Id.)
Rhodes College then hired an outside attorney to conduct an investigation.
(Id.) The attorney-investigator interviewed Ms. Bose, Dr. Bea, Dr. Brien, and
three of Ms. Bose’s classmates. (Id.) Although Ms. Bose did describe other acts
of alleged retaliation, at no point in her Title IX online complaint or during her
interview with the attorney-investigator (which was transcribed by a court reporter
in the presence of Ms. Bose’s counsel) did Ms. Bose contend that Dr. Bea
retaliated against her by creating a fake answer key after the fact so that he could
falsely accuse her of cheating. (See Ex. C to Rhodes’s Trial Memorandum, RE
161-3, Page ID ## 2032-37); (Ex. H to Rhodes’s Trial Memorandum, RE 161-8,
Page ID ## 2047-2142). Following the investigation, in April 2016, Rhodes
informed Ms. Bose that “[a]fter careful review of the facts, the allegations of
17
sexual harassment and retaliation in violation of the College’s policy cannot be
sustained.”4 (DSUMF, RE 116-1, Page ID # 1013).
II. PROCEDURAL HISTORY
Ms. Bose filed suit against Rhodes College and Dr. Bea in May 2016. Her
complaint, entitled “Complaint for Violation of Title VII and Title IX of the Civil
Rights Act of 1964, Breach of Contract, Defamation of Character, Temporary
Restraining Order, Permanent Injunctive Relief and Money Damages,” originally
asserted nine claims against Rhodes and Dr. Bea, to wit: (1) sexual harassment
and “retaliatory expulsion” under Title IX (against Rhodes); (2) retaliatory
discharge under Title VII (against Rhodes); (3) breach of contract (against
Rhodes); (4) tortious interference with business relations (against Rhodes); (5)
4
In July 2017, over a year after Ms. Bose filed suit, two forensic computer
examiners, one retained by Ms. Bose and one by Rhodes College, reviewed a
forensic image of Dr. Bea’s laptop hard drive and agreed on two things: (1) that
the file “F15 Quiz 5 amswers.docx” was created on November 26, 2015; and (2)
the same file was “modified” on December 2, 2015 at 10:29 a.m. (Declaration of
Jim KempVanEe, RE 125-2, Page ID ## 1579-81). Neither expert could tell from
the metadata they examined what the nature of the December 2, 2015
“modification” was because the optional Track Changes feature in Microsoft Word
was not enabled. (Defendants’ Response to Plaintiff’s Additional Material Facts,
RE 124, Page ID # 1563). Dr. Bea testified in his deposition that he opened “F15
Quiz5 amswers.docx” at 10:29 a.m. on December 2, 2015 to use it to grade Ms.
Bose’s quiz, and that the only change he made was to reformat the document for
printing so that it fit on one or two pages rather than four or five. (Defendants’
Response to Plaintiff’s Motion for Spoliation Sanctions, RE 125, Page ID ## 1570-
71). Ms. Bose therefore has no basis in this appeal to treat her accusation that Dr.
Bea created the fake answer key after Quiz 5 as an established fact; this assertion
by Ms. Bose remains the same rank speculation that it has always been.

18
negligent failure to train or supervise (against Rhodes); (6) violations of the
Tennessee Consumer Protection Act (“TCPA”) (against Rhodes); (7) defamation
(against Dr. Bea); (8) intentional infliction of emotional distress (“IIED”) (against
Dr. Bea); and (9) tortious interference with business relations (against Dr. Bea)
(the “Complaint”). (Complaint, RE 1, Page ID ## 1-20).
At the same time as the filing of the Complaint, Ms. Bose filed a motion for
a preliminary injunction in which she sought an order from the District Court (1)
enjoining Rhodes “from releasing to any party those portions of [Ms. Bose’s]
academic record that indicate that she was involuntarily withdrawn from classes
and that indicate that she was expelled for violating Rhodes’ Honor Code, as well
as any reference to her having violated [Rhodes’s] Honor Code and requiring
Rhodes to update its transcripts to reflect that [Ms. Bose] was not withdrawn from
classes,” and (2) ordering Rhodes to “expunge all records at Rhodes College
containing any notation or finding of academic misconduct on the part of [Ms.
Bose].” (Motion for Preliminary Injunction, RE 2, Page ID ## 27-29).
The District Court held a two-day hearing on Ms. Bose’s preliminary
injunction motion on June 7 and 27, 2016. In October 2016, the District Court
denied Ms. Bose’s request for injunctive relief, concluding that Ms. Bose had
failed to demonstrate a strong likelihood of success on the merits of her claims.
19
(Order Denying Plaintiff’s Motion for Temporary Restraining Order and
Preliminary Injunction, RE 51, Page ID # 618).
Rhodes and Dr. Bea filed a Rule 12(b)(6) motion to dismiss certain of Ms.
Bose’s claims in May 2016, contending that Ms. Bose’s Title VII, Title IX,
defamation, IIED, TCPA, and tortious interference with business relations claims
were deficient as a matter of law. (Defendants’ Motion for Partial Dismissal, RE
21, Page ID # 120). The District Court in October 2016 granted the Rule 12(b)(6)
motion with respect to Ms. Bose’s defamation and Title VII claims, and denied the
remainder of the motion. (Order Granting in Part and Denying in Part Defendants’
Motion for Partial Dismissal, RE 52, Page ID ## 619-32).
Specifically, as to the defamation claim, the District Court dismissed the
claim on the basis that Honor Council proceedings are quasi-judicial in nature and
that any statements made by Dr. Bea about Ms. Bose in the course of Honor
Council hearing are thus absolutely privileged. (Id. at Page ID ## 629-30).
Ms. Bose subsequently (in August 2017) voluntarily dismissed with
prejudice her IIED claim to avoid having to produce in discovery her Rhodes
College counseling records. (Order of Dismissal with Prejudice of Count 10 of the
Complaint, RE 102, Page ID ## 868-69); (Memorandum in Support of Defendants’
Motion for Summary Judgment (“SJ Brief”), RE 116, Page ID ## 970-71).
20
Following discovery, in December 2017, Rhodes and Dr. Bea filed a motion
for summary judgment on all of Ms. Bose’s remaining claims. (See Defendants’
Motion for Summary Judgment, RE 115, Page ID 968-69). As relevant here, with
respect to Ms. Bose’s Title IX claim,5 Rhodes argued that the retaliation claim fails
because Dr. Bea’s alleged retaliatory motive cannot properly be imputed to the
Honor Council. (SJ Brief, RE 116, Page ID ## 979-81). This “cat’s paw” theory
of liability, Rhodes contended, is not available to Ms. Bose because the Supreme
Court has held that liability under Title IX cannot rest on vicarious liability or
respondeat superior principles. (See id.)
In February 2018, the District Court granted summary judgment on all of
Ms. Bose’s remaining claims except for a narrow contract claim against Rhodes.
(Order Granting in Part and Denying in Part Defendants’ Motion for Summary
Judgment (“SJ Order”), RE 149, Page ID ## 1810-41); (Order Granting
Unopposed Motion for Revision of Interlocutory Order, RE 152, Page ID ## 1925-
26).
5
As explained in Rhodes’s and Dr. Bea’s summary judgment brief, the Title IX-
specific language in the Complaint is not entirely clear on whether Ms. Bose
intended to assert (1) a sexually hostile educational environment claim, (2) a
deliberate indifference claim, (3) a retaliation claim, or (4) some combination of
these. (See SJ Brief, RE 116, Page ID # 973). In any event, Ms. Bose, in response
to the motion for summary judgment, expressly abandoned any sexually hostile
educational environment claim and deliberate indifference claim. (See Plaintiff’s
Response in Opposition to Defendants’ Motion for Summary Judgment, RE 119,
Page ID # 1288) (abandoning every Title IX claim except a retaliation claim).
21
The District Court, in analyzing and granting the motion for summary
judgment on the Title IX retaliation claim, held that Ms. Bose could not establish
the element of causation using the cat’s paw theory of liability (i.e., by imputing
Dr. Bea’s alleged retaliatory motive to Rhodes College) because Title IX, unlike
Title VII, does not recognize respondeat superior liability. (SJ Order, RE 149,
Page ID ## 1818-22).
Rather than going to trial on the remaining contract claim, Ms. Bose
voluntarily dismissed that claim with prejudice. (See Stipulation of Dismissal with
Prejudice of Plaintiff’s Breach of Contract Claim, RE 164, Page ID ## 2260-63).
The District Court subsequently entered a judgment in favor of Rhodes and Dr.
Bea. (Judgment, RE 172, Page ID # 2275). This appeal by Ms. Bose followed.
As explained below, Ms. Bose’s appeal lacks merit and the District Court’s
decision should be affirmed.
22
SUMMARY OF THE ARGUMENT
This appeal involves nothing more than the straightforward application of
well-settled principles of federal and state law. Ms. Bose asserts only two claims
on appeal, and both claims fail as a matter of law. Ms. Bose’s Title IX retaliation
claim fails because it depends entirely on principles of respondeat superior
liability, and the Supreme Court has expressly held that vicarious liability
principles may not be used to hold a school liable in damages under Title IX. As
to Ms. Bose’s Tennessee law claim for defamation, it fails because she cannot
demonstrate an essential element of the tort (namely, publication) and also because
Rhodes College’s Honor Council proceedings are quasi-judicial in nature such that
statements made in the course of those proceedings are absolutely privileged.
23
ARGUMENT
I. THE DISTRICT COURT CORRECTLY CONCLUDED THAT MS.

BOSE’S TITLE IX RETALIATION CLAIM FAILS BECAUSE IT
RELIES SOLELY ON PRINCIPLES OF VICARIOUS LIABILITY
NOT AVAILABLE IN TITLE IX ACTIONS
A. Standard of Review
This Court reviews de novo a district court’s grant of summary judgment.
Brown v. Raymond Corp., 432 F.3d 640, 643 (6th Cir. 2005). Summary judgment
is appropriate where there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). A
district court’s grant of summary judgment may be affirmed on any basis
supported by the record. Corell v. CSX Transp., Inc., 378 F. App’x 496, 499-500
(6th Cir. 2010) (citing Dixon v. Clem, 492 F.3d 665, 673 (6th Cir. 2007)).
B. The Supreme Court in Gebser Emphasized Title IX’s History and

Unique Statutory Structure
Ms. Bose’s theory of Title IX retaliation in the District Court was that Dr.
Bea, supposedly motivated to retaliate against Ms. Bose because of her alleged
objections to Dr. Bea’s purportedly inappropriate comments, used his authority to
dupe the Rhodes Honor Council—which itself undisputedly had no retaliatory
24
motive—into expelling Ms. Bose by contriving a fake answer key and accusing her
of cheating.6
As the District Court properly held, the leading Supreme Court decision of
Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998), bars Ms.
Bose’s theory of liability because the theory rests on principles of respondeat
superior, and vicarious liability cannot be used to hold an educational institution
liable under Title IX. Ms. Bose’s Title IX retaliation claim therefore fails as a
matter of law.
In Gebser, a teacher allegedly initiated sexual conduct with a high school
student that continued for several school years, and the student did not report the
conduct to school officials. See id. at 278. After a police officer caught the teacher
and the student in a sexual act, the student and her mother filed suit against the
school district and the teacher and asserted several claims, including that the school
district was liable under Title IX for sex-based discrimination stemming from the
teacher’s alleged sexual harassment. Id. at 278-79. In considering whether the
school district could be held liable for the sexual harassment of the teacher, the
Fifth Circuit “refused to invoke the common law principle that holds an employer
vicariously liable when an employee is ‘aided in accomplishing [a] tort by the
6
Although there exist disputes of fact, including the nature of Dr. Bea’s alleged
comments to Ms. Bose, the purported “set-up” by Dr. Bea, and whether Ms. Bose
confronted Dr. Bea at any point, none of these factual disputes are material to the
question of whether Rhodes substantially complied with Title IX.
25
existence of the agency relation.’” Id. at 280 (quoting Restatement (Second) of
Agency § 219(2)(d) (1957)).
In challenging the Fifth Circuit’s holding at the Supreme Court, the
petitioners in Gebser argued that the Court’s previous decision in Franklin v.
Gwinnett County Public Schools, 503 U.S. 60 (1992), established “a comparison of
teacher-student harassment with supervisor-employee harassment” such that
“agency principles should likewise apply in Title IX actions,” as they do under
Title VII. Id. at 282. The Supreme Court squarely rejected that argument, based in
part on an analysis of the structure of Title IX as distinguished from that of Title
VII. Id. at 282-93.
First, the Supreme Court noted that Title VII’s prohibition against
discrimination runs against “an employer,” which term is explicitly defined to
include “any agent” of an “employer.” See id. at 283 (analyzing Title VII’s
structure). In contrast, Title IX’s prohibition on sex discrimination runs only
against an “educational program or activity receiving Federal financial assistance”
with no comparable reference to such program or activity’s “agents.” Id. Title VII
contains an outright prohibition against discrimination and expressly provides that
victims of discrimination be made whole, making its central purpose “to
compensate victims of discrimination.” Id. at 287.
26
Title IX, on the other hand, is more in the nature of a contract between the
federal government and a federal grant recipient that conditions receipt of federal
funds on a promise by the recipient not to discriminate. See id. at 287-88
(discussing this contractual relationship). It has no provision for a private right of
action or for the payment of monetary damages; such private right of action has
been implied by federal courts. Title IX’s only express means of enforcement is by
administrative agencies that must provide a potential violator with notice of non-
compliance and make a determination that compliance cannot be achieved by
voluntary means. Id. at 288.
As the Supreme Court explained, “[i]t would be unsound, we think, for a
statute’s express system of enforcement to require notice to the recipient and an
opportunity to come into voluntary compliance while a judicially implied system of
enforcement permits substantial liability without regard to the recipient’s
knowledge or its corrective actions upon receiving notice.” Id. at 289 (emphasis in
original). The Supreme Court thus held in Gebser that (1) “in cases like this one
that do not involve official policy of the recipient entity, we hold that a damages
remedy will not lie under Title IX unless an official who at a minimum has
authority to address the alleged discrimination and to institute corrective measures
on the recipient’s behalf has actual knowledge of discrimination in the recipient’s
27
programs and fails adequately to respond”; and (2) the recipient’s response must
amount to “deliberate indifference to discrimination.” Id. at 290.
Applying Gebser to this case, the District Court concluded that because Ms.
Bose can establish the requisite causal connection between her expulsion and her
alleged objections to Dr. Bea’s comments only by relying on a theory of
respondeat superior (i.e., the cat’s paw theory), which is unavailable under Title
IX, her retaliation claim necessarily fails. (SJ Order, RE 149, Page ID ## 1818-
22).
What Ms. Bose contends on appeal is an issue of first impression is rather an
already-answered, straightforward question of law; namely, she may not establish
Rhodes’s liability under Title IX by attributing or imputing the purported
retaliatory motive of Rhodes’s agent, Dr. Bea, to Rhodes’s decision to expel her
for academic misconduct. See Gebser, 524 U.S. at 288 (holding that recovery in
damages is unavailable under Title IX “where liability rests solely on principles of
vicarious liability or constructive notice”); Klemencic v. Ohio State Univ., 263 F.3d
504, 511 (6th Cir. 2001) (“[W]hen sued under either § 1983 or Title IX, an
institution cannot be held liable for the acts of its employees under a theory of
respondeat superior.”); Foster v. Michigan, 573 F. App’x 377, 389 (6th Cir. 2014)
(citing Gebser and explaining that “the Supreme Court [has] held that vicarious
liability [is] not available under Title IX and that a supervisory entity must have
28
had knowledge of and been deliberately indifferent to an employee’s
discriminatory actions”); see also Davis v. Monroe Cnty. Bd. of Educ., 526 U.S.
629, 640 (1999) (holding that, unlike in the context of Title VII, “a recipient of
federal funds may be liable in damages under Title IX only for its own
misconduct”) (emphasis added); Phillips v. Anderson Cnty. Bd. of Educ., 2006 WL
3759893, at *11 (E.D. Tenn. Dec. 19, 2006) (“Thus, even though Gebser and
Davis were both [Title IX] sexual harassment cases, the Court concludes that the
Supreme Court’s rationale for rejecting the use of agency principles in those cases,
which was based upon the Court’s analysis of the purpose and structure of Title IX
generally and as a whole, is applicable to any action brought pursuant to the statute
[Title IX].”). Ms. Bose’s theory would require this Court to expressly or implicitly
overrule Gebser, which this Court simply cannot do. E.g., Richardson v. Wayne
State Univ., 587 F. App’x 284, 286 (6th Cir. 2014) (“Richardson argues those
[Supreme Court] cases were wrongly decided, but we cannot overrule the Supreme
Court.”). The District Court correctly granted summary judgment in favor of
Rhodes on Ms. Bose’s Title IX retaliation claim.
C. It Is Well-Settled Law That the Cat’s Paw Theory of Liability Is a

Principle of Agency Law, Not a Free-Floating Theory of
Causation Lurking Outside the Universe of Vicarious Liability
Principles
In an effort to circumvent the straightforward application of Gebser, Ms.
Bose relies solely on the cat’s paw theory of liability, which has been recognized
29
by federal courts in Title VII and other employment cases to permit the imputation
of the retaliatory or discriminatory motive of a non-decisionmaker to a
decisionmaker who harbors no retaliatory or discriminatory motive. See, e.g., Liles
v. C.S. McCrossan, Inc., 851 F.3d 810, 820 (8th Cir. 2017) (explaining that, under
the cat’s paw theory, a plaintiff “attempts to transfer the alleged animus on the part
of [one or more subordinates] to the ultimate decisionmaker”). For example, the
decision of a department head to fire an employee based on the recommendation of
a supervisor who, unbeknownst to the department head, has an unlawful motive to
retaliate against the employee, may still result in liability in a Title VII case even if
the department head has no retaliatory motive whatsoever. See id. at 820 n.10
(explaining that the cat’s paw theory “describes a situation in which a biased
subordinate, who lacks decisionmaking power, uses the formal decisionmaker as a
dupe in a deliberate scheme to trigger a discriminatory employment action”)
(internal quotation marks omitted).
Contrary to Ms. Bose’s assertions, the issue of whether the cat’s paw theory
of liability is a subset of respondeat superior (or vicarious) liability is well-settled,
and her argument that the cat’s paw doctrine is merely a “conduit theory”
(whatever that means) or somehow a free-floating theory of causation that exists
outside the universe of respondeat superior liability is unavailing. See, e.g.,
Rooney v. Rock-Tenn Converting Co., 878 F.3d 1111, 1118 (8th Cir. 2018) (“Nor
30
has he presented any evidence supporting a cat’s-paw theory of liability, in which
an employer may be vicariously liable for an adverse employment action if one of
its agents—other than the ultimate decisionmaker—is motivated by retaliatory
animus and intentionally and proximately causes the action.”) (emphasis added);
Liles, 851 F.3d at 820 (discussing the cat’s paw theory and explaining that, under
the theory, an “employer may be vicariously liable for an adverse employment
action”) (emphasis added); accord Voltz v. Erie Cnty., 617 F. App’x 417, 424 (6th
Cir. 2015) (discussing the cat’s paw theory in the context of vicarious liability and
explaining that, in a Title VII case, the cat’s paw theory may be used to “impute
liability to an employer for the discriminatory actions of a human resources
director”); Martin v. Dean, 2008 WL 11324082, at *7 (N.D. Ga. Oct. 21, 2008)
(“Because it imposes liability for actions of employees on their employers, the
Cat’s Paw Theory is premised on the doctrine of respondeat superior.”); see also
United States v. Romitti, 363 F.2d 662, 666 (9th Cir. 1966) (“[T]he liability
imposed upon the principal by the doctrine of respondeat superior is vicarious and
does not rest upon the principal’s fault.”); accord Yong Li v. Reade, 746 F. Supp.
2d 245, 251 (D. Mass. 2010) (“The Court finds that Dr. Reade is not the kind of
‘decision-maker’ who can be held liable under the ‘cat’s paw’ theory. That theory
is derived from agency principles and is analogous to the doctrine of respondeat
superior which holds principals liable for the tortious acts of their agents
31
committed within the scope of employment.”); Dolan v. Penn Millers Ins. Co.,
2014 WL 2047897, at *11 (M.D. Pa. May 19, 2014) (observing that the cat’s paw
theory is a “form of respondeat superior”). In the face of such consistent and
unbroken authority, Ms. Bose has no basis to argue that the cat’s paw theory is
anything other than a type of respondeat superior liability that cannot be applied in
a Title IX context.
Ms. Bose argues that the Sixth Circuit case of DeNoma v. Hamilton County
Court of Common Pleas, 626 F. App’x 101 (6th Cir. 2015), supports her argument
that the cat’s paw theory is not a subset of respondeat superior liability. In
DeNoma, this Court assumed that the cat’s paw theory of liability may be
applicable in a Section 1983 case even though Section 1983, like Title IX, does not
permit the imposition of respondeat superior liability. The problem with Ms.
Bose’s argument is that the DeNoma court simply assumed without deciding that
the cat’s paw theory was applicable, without any mention (let alone any analysis)
of the leading U.S. Supreme Court case on the issue of respondeat superior and
vicarious liability in the context of Section 1983, namely, Monell v. Department of
Social Services of City of New York, 436 U.S. 658 (1978).
In Monell, the Supreme Court held that the language of Section 1983, when
read against the background of its legislative history, “compels the conclusion that
Congress did not intend municipalities to be held liable unless action pursuant to
32
official municipal policy of some nature caused a constitutional tort.” 436 U.S. at
690. “In particular,” the Supreme Court continued, “we conclude that a
municipality cannot be held liable solely because it employees a tortfeasor—or, in
other words, a municipality cannot be held liable under § 1983 on a respondeat
superior theory.” Id. (emphasis in original).
In analyzing and applying Monell, federal courts have repeatedly and
specifically barred the application of the cat’s paw theory in Section 1983 cases.
See, e.g., Perzynski v. Cerro Gordo Cnty., 953 F. Supp. 2d 916, 930 (N.D. Iowa
2013), aff’d, 557 F. App’x 619 (8th Cir. 2014) (“This evidence would not permit a
reasonable jury to find for Perzynski on a cat’s paw theory. In any event, that
theory cannot be used to hold the County liable because it essentially would
employ a respondeat superior theory with Kline as the tortfeasor. The law is clear
that a municipality cannot be held liable solely because it employs a tortfeasor[.]”)
(emphasis in original); Chew v. City & Cnty. of San Francisco, 2016 WL 631924,
at *15 (N.D. Cal. Feb. 17, 2016) (“The Court’s holding in Staub made clear that its
applicability, when a supervisor acts outside the scope of his employment, was
premised on ‘traditional agency principles,’ which include the theory of respondeat
superior. Therefore, Chew cannot rely on the Cat’s Paw theory as elucidated in
Staub to impute liability to the City and circumvent the requirements of Monell.”);
Jackson v. City of Centreville, 899 F. Supp. 2d 1209, 1222 (N.D. Ala. 2012)
33
(“[R]espondeat superior or vicarious liability will not attach under § 1983.
Therefore, the cat’s paw theory does not apply in the § 1983 context.”) (internal
quotation marks omitted); Files v. DeKalb Cnty. Sch. Dist., 2012 WL 716055, at
*4 (N.D. Ga. Mar. 5, 2012) (“In any case, the cat's paw theory does not apply in
the § 1983 context. As discussed above, there is no respondeat superior or
vicarious liability under § 1983.”); Manuele v. City of Jennings, 2012 WL 113538,
at *10 (E.D. Mo. Jan. 13, 2012) (“The Court agrees that cat’s paw liability does not
apply to municipalities, which cannot be held liable on agency principles.”).
DeNoma simply did not present this Court with an opportunity to consider
the effect of Monell on its analysis. It therefore cannot overcome the great weight
of precedent refusing to apply the cat’s paw theory or any other theory of
respondeat superior liability to either Section 1983 or Title IX.7
The fact of the matter is that there is no Sixth Circuit case that applies the
cat’s paw theory of liability to a Title IX case, much less a case like Ms. Bose’s.
7
Ms. Bose also heavily relies on the application of cat’s paw principles in Staub v.
Proctor Hospital, 562 U.S. 411 (2011), which was decided under a statutory
scheme that is remarkably different from Title IX, to wit, the Uniform Services
Employment and Reemployment Rights Act of 1994 (“USERRA”). Like Title VII
and unlike Title IX, USERRA’s structure was designed by Congress to “adopt[ ]
the background of general tort law,” including (but not limited to) traditional
agency principles. See Staub, 562 U.S. at 417. USERRA and cases decided
thereunder accordingly do not support the imposition of respondeat superior
liability under Title IX, which has a substantively different structure. See Gebser,
524 U.S. at 289-90.
34
This is hardly a surprising outcome because such an application would run directly
contrary to the Supreme Court’s holding in Gebser.
In fact, the Sixth Circuit has expressly held that a school cannot be held
liable for Title IX retaliation under any theory of agency. See M.D. ex rel.
Deweese v. Bowling Green Indep. Sch. Dist., 709 F. App’x 775, 779 (6th Cir.
2017). M.D. involved a high school cheerleader who was sexually assaulted by a
teammate on a bus while returning from a competition. Among other claims
against the school district, the plaintiff raised a Title IX retaliation claim based on
purported retaliatory conduct by her cheerleading coaches after she reported the
assault. Id. This Court analyzed the Title IX retaliation claim as follows:
M.D. cites Doe v. Rutherford County Board of

Education, 86 F. Supp. 3d 831, 842 (M.D. Tenn. 2015),
for the proposition that the School District is liable for
M.D.’s coach’s actions on an agency theory, or—
alternatively—that the School District is liable for
remaining idle after it learned about the alleged
retaliation. To the extent that Doe stands for the former
proposition, it is incorrect. Davis clearly rejected the use
of agency principles to impute liability to schools for the
misconduct of their teachers.
Id.
M.D. straightforwardly rejects any argument that a school may be held liable
for retaliatory actions by its agents under Title IX on any agency theory, including
the cat’s paw theory. Considering the alternative question—the school’s liability
for its alleged inaction afterward—the Sixth Circuit in M.D. rejected the
35
proposition that the school could be held liable where “the School District’s
response to the alleged retaliation was not ‘clearly unreasonable in light of the
known circumstances.’” Id. (quoting Davis, 526 U.S. at 648).
Ms. Bose cites cases from other circuits that she claims stand for the
proposition that, despite Gebser’s clear holding, the cat’s paw theory of liability is
applicable in Title IX actions. See, e.g., Emeldi v. Univ. of Oregon, 698 F.3d 715
(9th Cir. 2012); Papelino v. Albany Coll. of Pharmacy, 633 F.3d 81 (2d Cir. 2011).
In Emeldi, the plaintiff, a female doctoral candidate in the university’s college of
education, alleged that her dissertation chair, whom she accused of sex
discrimination, thereafter resigned and discouraged other faculty members from
replacing him, resulting in her inability to finish her dissertation and graduate. The
Ninth Circuit in Emeldi applied Title VII principles exclusively, and merely
assumed without deciding that the cat’s paw theory of liability could be applied in
a Title IX retaliation case without any attempt to reconcile its reasoning with
Gebser’s clear prohibition on respondeat superior liability in Title IX cases. See
698 F.3d at 726-29.
In Papelino, the plaintiff alleged that one of his teachers falsely accused him
of cheating, resulting in his expulsion, after he complained about the teacher’s
alleged sexual advances towards him to the dean of the school, who admitted that
he did nothing in response to the plaintiff’s complaint. After determining that the
36
dean’s inaction amounted to deliberate indifference as to the plaintiff’s sexual
harassment claim, the Second Circuit held that the knowledge of the dean could be
imputed to the honor council and other college administrators involved in the
academic discipline process, again basing its analysis exclusively on Title VII
principles of respondeat superior without consideration of Gebser. See 633 F.3d
at 91-93.
These cases do not help Ms. Bose because the Sixth Circuit “continue[s] to
subscribe to the long-held standard that [q]uestions which merely lurk in the
record, neither brought to the attention of the court nor ruled upon, are not to be
considered as having been so decided as to constitute precedents.” Rinard v.
Luoma, 440 F.3d 361, 363 (6th Cir. 2006) (internal quotation marks omitted); see
also Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 170 (2004) (same).
Without even any persuasive authority from another circuit that actually analyzes
(in light of Gebser) whether the cat’s paw theory of liability is available in Title IX
actions, this Court should apply Gebser to bar Ms. Bose’s theory of liability here.
See Davis, 526 U.S. at 643 (“The high standard imposed in Gebser sought to
eliminate any ‘risk that the recipient would be liable in damages not for its own
official decision but instead for its employees’ independent actions.’”) (quoting
Gebser, 524 U.S. at 290-91).
37
D. A Deliberate Indifference Theory of Liability Is Unavailable to

Ms. Bose on Appeal and Unavailing in Any Event
The cat’s paw theory, as a subset of respondeat superior liability, cannot be
used by Ms. Bose to impute liability to Rhodes on her Title IX retaliation claim.
To the extent that Ms. Bose is implicitly asserting a Title IX deliberate indifference
claim (indeed, Ms. Bose cites a number of Title IX deliberate indifference cases in
her opening brief), neither the deliberate indifference standard nor the deliberate
indifference case law relied upon by Ms. Bose can rescue her appeal.
First, Ms. Bose expressly abandoned any Title IX deliberate indifference
claim in her response to Appellees’ summary judgment motion. (See Plaintiff’s
Response in Opposition to Defendants’ Motion for Summary Judgment, RE 119,
Page ID # 1288) (“As a preliminary matter, Ms. Bose seeks only to proceed with
the following claims at trial: (1) Title IX retaliation against Defendant Rhodes
College; (2) Breach of Contract against Defendant Rhodes College; and (3)
Intentional Interference with a Contract against Defendant Bea.”); Gardner v.
GMAC, Inc., 796 F.3d 390, 396 (4th Cir. 2015) (explaining that the express
abandonment of a claim by a party renders that claim moot); accord Brown v. VHS
of Mich., Inc., 545 F. App’x 368, 372 (6th Cir. 2013) (analyzing and applying the
abandonment doctrine). Because Ms. Bose expressly abandoned any Title IX
deliberate indifference claim below, she cannot revive it now expressly or
implicitly.
38
Another consequence of Ms. Bose’s decision to expressly abandon any
deliberate indifference claim at the summary judgment stage is that Ms. Bose
cannot properly raise any deliberate indifference-based arguments on appeal. E.g.,
Keene Corp. v. Int’l Fid. Ins. Co., 736 F.2d 388, 393 (7th Cir. 1984) (rejecting an
appellant’s arguments because they “were not presented before the district court in
opposing [the appellee’s] summary judgment motion and therefore cannot be
presented for the first time on appeal”); Grenier v. Cyanamid Plastics, Inc., 70
F.3d 667, 678 (1st Cir. 1995) (same reasoning and result). Any deliberate
indifference-based arguments by Ms. Bose have accordingly been waived.
Additionally, even if Ms. Bose had not expressly abandoned any deliberate
indifference claim below and the doctrine of waiver did not preclude her from
making deliberate indifference-based arguments on appeal, any such claim would
still fail as a matter of law. Given the Supreme Court’s analysis in Gebser of the
unique structure of Title IX and the statute’s prohibition on the use of agency
principles to impose liability on a school,8 the only logical conclusion is that any
claim under Title IX—whether for sexual harassment, sex-based discrimination, or
unlawful retaliation—requires (among other things) a showing that the plaintiff
8
E.g., Klemencic, 263 F.3d at 511 (citing Gebser and explaining that, “when sued
under either § 1983 or Title IX, an institution cannot be liable for the acts of its
employees under a theory of respondeat superior”); accord M.D., 709 F. App’x at
779 (explaining that the Supreme Court has “clearly rejected the use of agency
principles to impute liability to schools for the misconduct of their teachers”).
39
provided actual notice of the alleged unlawful act to an appropriate person at the
institution and that the institution’s response constituted deliberate indifference.
See Phillips, 2006 WL 3759893, at *13 (“Thus, even though Gebser and Davis
were both sexual harassment cases, the Court concludes that the Supreme Court’s
rationale for rejecting the use of agency principles in those cases, which was based
upon the Court’s analysis of the purpose and structure of Title IX generally and as
a whole, is applicable to any action brought pursuant to the statute.”); cf. M.D., 709
F. App’x at 779 (analyzing in the alternative a Title IX retaliation claim using the
deliberate indifference standard). If the rule were otherwise, it would run afoul of
the Supreme Court’s holding in Gebser that a “damages remedy will not lie under
Title IX” unless, in relevant part, the institution “fails adequately to respond.” 524
U.S. at 290. Gebser is not ambiguous on this point. Ms. Bose has never made any
serious effort to satisfy the demanding deliberate indifference standard, and in fact
she cannot possibly do so under the undisputed facts of this case.
II. MS. BOSE’S DEFAMATION CLAIM WAS CORRECTLY

DISMISSED
A. Standard of Review
A district court’s dismissal of a claim pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure is reviewed de novo. Hensley Mfg. v. ProPride,
Inc., 579 F.3d 603, 608-09 (6th Cir. 2009). This Court “may affirm the district
40
court’s dismissal of a plaintiff’s claims on any grounds, including grounds not
relied upon by the district court.” Id. at 609.
B. The Defamation Claim Fails Because Ms. Bose Cannot

Demonstrate Publication, an Essential Element of the Tort
Ms. Bose’s defamation claim fails as a matter of law because she cannot
satisfy the publication element of the tort. The essential elements of a defamation
claim under Tennessee law are (1) publication of a statement; (2) with knowledge
that the statement is false and defaming to the plaintiff; or (3) with reckless
disregard for the truth of the statement or negligence in failing to ascertain whether
the statement is truthful. See Siegfried v. Grand Krewe of Sphinx, 2003 WL
22888908, at *2 (Tenn. Ct. App. Dec. 2, 2003) (listing the elements of a
defamation claim). “It is well settled that no publication occurs when only intra-
corporate communications exist” because “communication between officers and
agents of a corporation . . . is not publication of libelous matter.” Id. (internal
quotation marks omitted). Relatedly, “when the person in receipt of a
communication is within the structure of a defined organization and has a
responsibility to the organization to receive that communication, there is no
publication to a third party.” Z.J. v. Vanderbilt Univ., ___ F. Supp. 3d ___, 2018
WL 6694866, at *24 (M.D. Tenn. Dec. 19, 2018). This rule applies to all
corporate forms under Tennessee law, including non-profit corporations and to
private colleges and universities. See id. (so explaining).
41
Dr. Bea’s statements at the Honor Council proceedings (or, for that matter,
to any of Rhodes College’s agents) accordingly cannot form the basis of a
defamation claim because, under Tennessee law, those statements were not
published. The above-cited case involving Vanderbilt University is on all fours in
every relevant respect. In that case, the plaintiff—who had been accused of sexual
misconduct by a fellow student—was charged by Vanderbilt University with
violating its sexual misconduct policy. After an investigation by the school’s Title
IX coordinator and its director of student accountability, the plaintiff was found to
have violated the school’s sexual misconduct policy, and he was expelled. See id.
at *11-12.
In the plaintiff’s lawsuit against the school, he alleged (among other things)
that Vanderbilt University had defamed him by virtue of the fact that the
allegations of sexual misconduct were published to the school’s director of student
accountability and other employees. Dismissing the plaintiff’s defamation claim
under Rule 12(b)(6), the district court emphasized that, “under the intra-corporate
communications doctrine, communications by Vanderbilt (or any Vanderbilt
official) with Vanderbilt’s own Director of Student Accountability, cannot
constitute ‘publication’ under Tennessee law” because all of the alleged
defamatory statements “would merely be the sharing of information among
Vanderbilt employees involved in the disciplinary process.” Id. at *24. The result
42
should be the same here. Dr. Bea’s statements at the Honor Council proceedings
were not published in the way that Tennessee defamation law requires. Ms. Bose’s
defamation claim fails on this basis.
C. Rhodes College’s Honor Council Proceedings Are Quasi-Judicial,

and the Absolute Privilege Applies
Ms. Bose’s defamation claim also fails as a matter of law, as the District
Court correctly concluded, because Dr. Bea’s statements at the Honor Council
hearing are shielded by the absolute privilege that applies to statements made in
connection with quasi-judicial proceedings under Tennessee law. In dismissing the
defamation claim, the District Court emphasized that the procedural protections
contained in the Honor Council Constitution—when taken in total—are sufficient
to render Honor Council proceedings quasi-judicial.
Rhodes College, like many private and public institutions within and outside
of Tennessee, has an Honor System. The Honor System at Rhodes College has
existed in some form since the 19th century. All Rhodes College students are
bound by the Honor System. Indeed, every Rhodes College student is required to
sign the following pledge at the beginning of his or her freshman year: “As a
member of the Rhodes College community, I pledge my full and steadfast support
to the Honor System and agree neither to lie, cheat, nor steal, and to report any
such violation that I may witness.” (See Ex. B to Rhodes’s Trial Memorandum,
RE 161-2, Page ID # 2024).
43
As the District Court rightly recognized, the Honor Council Constitution
contains significant procedural protections and other pre-defined standards that are
consistent with Tennessee courts’ analysis of quasi-judicial proceedings and the
application of the absolute privilege. Those protections and standards include: (1)
the Honor Council President, upon learning of an alleged Honor System violation,
appoints an investigator; (2) the investigator must interview the accused student,
any material witnesses, any expert witnesses, and the accuser (who may or may not
be a student); (3) the investigator presents the results of the investigation to a pre-
hearing committee; (4) the pre-hearing committee subsequently votes on whether a
formal Honor Council hearing is warranted; (5) the accused receives written
notification of a formal hearing at least 48 hours before the hearing is set to occur;
(6) the accused receives a charge letter containing specific information about the
alleged violation; (7) the accused is entitled to an advisor, who is in turn tasked
with advising the accused regarding Honor Council procedures; and (8) the
accused is presumed “Not in Violation” throughout the investigation and during
the course of the hearing. (See id. at Page ID ## 2023-31).
Further protections built into the Honor Council Constitution include: (1)
the Honor Council must act with complete impartiality during the investigation and
the hearing (the decision of whether a particular member of the Honor Council
must recuse is committed to the discretion of the Honor Council President); (2) the
44
hearing must be taped; (3) the Recording Secretary must keep minutes of the
proceedings; (4) the investigator is not permitted to vote at the hearing; (5) all
witnesses at the hearing9 must take an oath of privacy; (6) all testimony at the
hearing must be sworn; (7) the accused is permitted to hear all of the evidence
presented at the Honor Council hearing; (8) the accused may offer proof at the
Honor Council hearing, including (but not limited to) the calling of witnesses; (9)
the accused may choose to remain silent at the hearing; (10) the accused may be
found “In Violation” only by clear and convincing evidence; (11) two-thirds or
more of the Honor Council must vote to find the accused “In Violation” before the
accused will be so found; and (12) the accused has the right to appeal any “In
Violation” finding to the FAC. (See id.)
The above-described panoply of protections and pre-defined standards led
the District Court to hold that Rhodes College’s Honor Council proceedings are
quasi-judicial in nature. This holding should be affirmed. Nevertheless, Ms.
Bose’s primary argument is that the District Court erred because private
proceedings cannot be quasi-judicial as a matter of Tennessee law. Yet Ms. Bose
has failed to cite any Tennessee case expressly holding that private proceedings
cannot be quasi-judicial. Moreover, when the relevant standard of law is applied to
9
Witnesses are permitted to attend the hearing, but only for the portion of the
hearing involving their own testimony. The only persons besides the members of
the Honor Council who are permitted to attend the entire hearing are the accused,
the accused’s advisor, and the accuser. (See id. at Page ID # 2028).
45
the undisputed protections and pre-defined standards codified in the Honor Council
Constitution, the only logical conclusion is that Rhodes College’s Honor Council
proceedings are quasi-judicial.
Ms. Bose cannot reasonably dispute that, over time, the Tennessee Supreme
Court has “strongly endorsed a liberal application of the absolute privilege
accorded to publication of defamatory matters in connection with judicial
proceedings.” See Myers v. Pickering Firm, Inc., 959 S.W.2d 152, 161 (Tenn. Ct.
App. 1997) (so explaining and holding that “communications preliminary to
proposed or pending litigation” are absolutely privileged). Nor can she reasonably
dispute that the Tennessee Supreme Court has opined that the “application of pre-
defined standards, the requirement of a hearing, and the requirement of a record are
earmarks of quasi-judicial proceedings.” Brundage v. Cumberland Cnty., 357
S.W.3d 361, 370 (Tenn. 2011).
Rhodes College’s Honor Council proceedings have all of the earmarks of
quasi-judicial proceedings under Tennessee law. As explained above, the Honor
Council Constitution contains numerous pre-defined standards and protections for
accused students. The Honor Council Constitution also has detailed standards that
govern hearings. Further, the Honor Council Constitution requires the creation of
a record. In short, the District Court’s conclusion that Rhodes College’s Honor
46
Council proceedings are quasi-judicial has ample support in the standards
contained in the Honor Council Constitution and Tennessee case law.
Ms. Bose nevertheless contends that various policy considerations compel a
different result. But this contention crumbles under scrutiny. First, as the
Tennessee Supreme Court has explained, the “underlying basis for the grant of the
privilege is the public’s interest in and need for a judicial process free from the fear
of a suit for . . . defamation . . . based on statements made in the course of a
judicial or quasi-judicial proceeding.” Lambdin Funeral Serv., Inc. v. Griffith, 559
S.W.2d 791, 792 (Tenn. 1978) (so explaining in the context of a funeral board).
This reasoning applies with equal force in the context of a college’s academic
misconduct proceedings. “At least in the context of educational institutions, as
long as the process is reasonably transparent and fair and affords the subject an
opportunity to respond, we think the ultimate issue focuses less on the particular
process and more on the recognition of the institution’s interest in assuring a
proper educational environment.” See Hartman v. Keri, 883 N.E.2d 774, 777-78
(Ind. 2008) (so explaining in a case involving a defamation claim arising out of
complaints made against a professor pursuant to a public university’s anti-
harassment policy and procedures).
In that vein, Rhodes College and other private schools in Tennessee with
longstanding honor systems (e.g., the University of the South, Vanderbilt
47
University, and others) have a strong interest in encouraging faculty members and
students to report allegations of academic misconduct so that those allegations may
be investigated and adjudicated by the school. Cf. id. at 778 (observing that, in the
absence of an absolute privilege, “faculty-student disputes would result in
traditional litigation rather than academic resolution to avoid any risk of loss of the
absolute privilege accorded statements in judicial proceedings”). The District
Court recognized this substantial interest, explaining that “extending [the absolute]
privilege to the Honor Council proceedings is consistent with the overall purpose
of the privilege and Tennessee’s liberal application.”
And although there may be jurisdictions where courts have declined to
accord quasi-judicial status to a private college’s academic misconduct
proceedings, Ms. Bose has failed to identify any such categorical bar under
Tennessee law. Private colleges and universities in Tennessee have a compelling
need to maintain their honor systems, and permitting defamation claims by
aggrieved students would cripple those systems. Cf. id. (“A university should be
given the latitude to tailor its processes to the educational environment without
degrading the protection the law gives to complaints of misconduct in the
educational setting.”). The pertinent Tennessee case law—when considered in
tandem with the undisputed protections and pre-defined standards contained in the
48
Honor Council Constitution—provides ample support for the District Court’s
conclusion in this case.
Ms. Bose also invokes an argument that involves a mixture of a parade of
horribles and reductio ad absurdum, but that argument lacks persuasive value. In
particular, Ms. Bose argues in her opening brief that “any private organization
could shield statements from defamation suits simply by creating a hearing system
and a set of pre-defined standards.” Although Ms. Bose frames this scenario as an
absurd one, the law in fact permits private actors to adjudicate their claims—even
ones that might be baseless or damaging to a party’s reputation—free from the
specter of defamation suits. This process is known as arbitration. See, e.g., Yeung
v. Maric, 232 P.3d 1281, 1285 (Ariz. Ct. App. 2010) (holding that a report made in
preparation for private, contract-based arbitration could not form the basis of a
defamation claim and explaining that “[s]everal jurisdictions have determined that
witnesses in private, contractual arbitration are immune from suit.”). “Witnesses
in arbitrations serve the socially important interest of providing arbitrators the
evidence necessary to dispose of the case, and they must be protected from the
threat of litigation, even at the expense of uncompensated harm to another person’s
reputation.” Id. at 1286. So too with Rhodes College’s Honor Council
proceedings, which are the academic equivalent of private, contractual
49
arbitrations.10 The District Court did not err in dismissing Ms. Bose’s defamation
claim on the basis that Dr. Bea’s statements at the Honor Council hearing were
shielded by the absolute privilege that applies to statements made during quasi-
judicial proceedings.
CONCLUSION
This appeal lacks merit. Ms. Bose’s Title IX retaliation claim fails because
it rests solely on principles of vicarious liability that are unavailable under Title IX.
Her defamation claim fails because she cannot establish the publication element of
the tort. The defamation claim also fails because, as the District Court correctly
concluded, Honor Council proceedings are quasi-judicial in nature and statements
made in those proceedings are absolutely privileged. Accordingly, for the
foregoing reasons, the District Court’s judgment should be affirmed.
Date: January 15, 2019 Respectfully submitted,
BURCH, PORTER & JOHNSON, PLLC
s/ Lisa A. Krupicka
Lisa A. Krupicka (BPR # 12147)
Gary S. Peeples (BPR # 32303)
Sarah E. Smith (BPR # 35329)
130 North Court Avenue
Memphis, TN 38103
T: (901) 524-5000
F: (901) 524-5024
E-mail: lkrupicka@bpjlaw.com
It is worth emphasizing that all Rhodes College students are required to sign the
10
Honor System pledge at the beginning of their freshman year.

50
gpeeples@bpjlaw.com
ssmith@bpjlaw.com
51
CERTIFICATE OF COMPLIANCE
The undersigned hereby certifies that the foregoing brief complies with the
type-volume limitation of Federal Rule of Appellate Procedure (“FRAP”)
32(a)(7)(B)(i) because it contains 11,977 words, as determined by the word-count
function of Microsoft Word 2016, excluding the parts of the brief exempted by
FRAP 32(f) and Sixth Circuit Rule 32(b)(1).
This brief also complies with the typeface requirements of FRAP 32(a)(5)
and the type style requirements of FRAP 32(a)(6) because it was prepared in a
proportionally spaced typeface using Microsoft Word 2016, Times New Roman in
14-point type, with all footnotes also in Times New Roman 14-point type.
Date: January 15, 2018 s/ Lisa A. Krupicka

52
The undersigned hereby certifies that on January 15, 2019, a true and correct
copy of the foregoing document was filed using this Court’s electronic filing
system, which will automatically send electronic notification of the filing to all
counsel of record in this case.
s/ Lisa A. Krupicka
53
DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS
Record Entry Description of Document Page ID
RE 1 Complaint 1-20
RE 2 Motion for Preliminary Injunction 27-29
RE 21 Defendants’ Motion for Partial 120-21

Dismissal
RE 21-1 Memorandum in Support of 122-36

Defendants’ Motion for Partial
Dismissal
RE 39 Reply Brief in Support of Defendants’ 204-15

Motion for Partial Dismissal
RE 44 Transcript from June 27, 2016 404-553

Preliminary Injunction Hearing
RE 51 Order Denying Plaintiff’s Motion for 603-18

Temporary Restraining Order and
Preliminary Injunction
54
RE 52 Order Granting in Part and Denying in 619-32

Part Defendants’ Motion for Partial
Dismissal
RE 102 Order of Dismissal with Prejudice of 868-69

Count 10 of the Complaint
RE 115 Defendants’ Motion for Summary 968-69

Judgment
RE 116 Memorandum in Support of 970-1003

Defendants’ Motion for Summary
Judgment
RE 116-1 Defendants’ Statement of Undisputed 1004-14

Material Facts in Support of Motion
for Summary Judgment
RE 116-2 Ex. A to Defendants’ Statement of 1015-21

Undisputed Material Facts in Support
of Motion for Summary Judgment
(Selected Portions of Transcript from
June 7, 2016 Preliminary Injunction
Hearing)
(Honor Council Case Packet)
(Plaintiff’s FAC Appeal Statement)
55

(Honor Council’s Response to
Plaintiff’s FAC Appeal Statement)
RE 116-3 Ex. B to Defendants’ Statement of 1083-1141
(Selected Portions of Plaintiff’s
Deposition Transcript)
RE 116-4 Ex. C to Defendants’ Statement of 1232-40
June 27, 2016 Preliminary Injunction
Hearing)
RE 116-4 Ex. D to Defendants’ Statement of 1241-51
(Emails Sent by Dr. Bea)
RE 116-4 Ex. E to Defendants’ Statement of 1252-54
Honor Council Hearing)
RE 116-4 Ex. F to Defendants’ Statement of 1255-68
(Transcript from FAC Hearing)
RE 119 Plaintiff’s Response in Opposition to 1288-1305
Defendants’ Motion for Summary
Judgment
56
RE 123 Reply in Support of Defendants’ 1555-59

Motion for Summary Judgment
RE 124 Defendants’ Response to Plaintiff’s 1560-65

Additional Material Facts
RE 125 Defendants’ Response to Plaintiff’s 1566-73

Motion for Spoliation Sanctions
RE 125-1 Ex. A to Defendants’ Response to 1574-77

Plaintiff’s Motion for Spoliation
Sanctions (Selected Portions of Dr.
Bea’s Deposition Transcript)
RE 125-2 Ex. B to Defendants’ Response to 1578-82
Plaintiff’s Motion for Spoliation
Sanctions (Declaration of Jim
KempVanEe)
RE 149 Order Granting in Part and Denying in 1810-41
Part Defendants’ Motion for Summary
Judgment
RE 152 Order Granting Unopposed Motion for 1925-26

Revision of Interlocutory Order
RE 161 Rhodes’s Trial Memorandum 1973-93
RE 161-1 Ex. A to Rhodes’s Trial Memorandum 1994-2021

(Operative Title IX Policy)
57
RE 161-2 Ex. B to Rhodes’s Trial Memorandum 2022-31

(Honor Council Constitution)
RE 161-3 Ex. C to Rhodes’s Trial Memorandum 2032-37

(Plaintiff’s Title IX Online Complaint)
RE 161-8 Ex. H to Rhodes’s Trial Memorandum 2047-2142

(Transcript of Plaintiff’s Interview by
Title IX Attorney-Investigator)
RE 164 Stipulation of Dismissal with Prejudice 2260-63

of Plaintiff’s Breach of Contract Claim
RE 172 Judgment 2275
58

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Case: 18-5936 Document: 31 Filed: 01/15/2019 Page: 1

United States Court of Appeals

CASE NO. 18-5936

ROBERTO DE LA SALUD BEA AND

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

Counsel for Appellees

Disclosure of Corporate Affiliations

Pursuant to 6th Cir. R. 26.1,

I certify that on _____________________________________ the foregoing document was served on all

Disclosure of Corporate Affiliations

Pursuant to 6th Cir. R. 26.1,

I certify that on _____________________________________ the foregoing document was served on all

TABLE OF CONTENTS ......................................................................................... i

TABLE OF AUTHORITIES ................................................................................. iii

STATEMENT REGARDING ORAL ARGUMENT ............................................ 1

STATEMENT OF ISSUES .................................................................................... 2

STATEMENT OF THE CASE ............................................................................... 3

A. Ms. Bose’s Matriculation at Rhodes College………………...3

C. Dr. Bea’s Suspicions Regarding Ms. Bose’s Conduct…....….6

D. Honor Council Proceedings…............................................…10

F. Appeal to the FAC.………………………….……………….14

G. Ms. Bose’s Title IX Complaint……………...……………….17

II. PROCEDURAL HISTORY.…………………………………….....18

SUMMARY OF THE ARGUMENT ................................................................... 23

I. THE DISTRICT COURT CORRECTLY CONCLUDED THAT MS.

B. The Supreme Court in Gebser Emphasized Title IX’s History

C. It Is Well-Settled Law That the Cat’s Paw Theory of Liability

D. A Deliberate Indifference Theory of Liability Is Unavailable to

II. MS. BOSE’S DEFAMATION CLAIM WAS CORRECTLY

B. The Defamation Claim Fails Because Ms. Bose Cannot

C. Rhodes College’s Honor Council Proceedings Are Quasi-

DESIGNATION OF RELEVANT DISTRICT COURT DOCUMENTS ……....54

Brown v. Raymond Corp.,

Brown v. VHS of Mich., Inc.,

Brundage v. Cumberland Cnty.,

Chew v. City & Cnty. of San Francisco,

Cooper Indus., Inc. v. Aviall Servs., Inc.,

Corell v. CSX Transp., Inc.,

Davis v. Monroe Cnty. Bd. of Educ.,

DeNoma v. Hamilton Cnty. Court of Common Pleas,

Dolan v. Penn Millers Ins. Co.,

Emeldi v. Univ. of Oregon,

Files v. DeKalb Cnty. Sch. Dist.,

Franklin v. Gwinnett Cnty. Pub. Schs.,

Gardner v. GMAC, Inc.,

Gebser v. Lago Vista Indep. Sch. Dist.,

Grenier v. Cyanamid Plastics, Inc.,

Hensley Mfg. v. ProPride, Inc.,

Jackson v. City of Centreville,

Keene Corp. v. Int’l Fid. Ins. Co.,

Klemencic v. Ohio State Univ.,

Lambdin Funeral Serv., Inc. v. Griffith,

Liles v. C.S. McCrossan, Inc.,

Manuele v. City of Jennings,

M.D. ex rel. Deweese v. Bowling Green Indep. Sch. Dist.,

Monell v. Dep’t of Social Servs. of City of New York,

Myers v. Pickering Firm, Inc.,

Papelino v. Albany Coll. of Pharmacy,

Perzynski v. Cerro Gordo Cnty.,

Phillips v. Anderson Cnty. Bd. of Educ.,

Richardson v. Wayne State Univ.,

Rooney v. Rock-Tenn Converting Co.,

Siegfried v. Grand Krewe of Sphinx,

Staub v. Proctor Hosp.,

United States v. Romitti,

Voltz v. Erie Cnty.,