11-4350-cv
Vaughan v. Vt. Law Sch., Inc.

                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                  AMENDED SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
10th day of January, two thousand thirteen,

Present:    ROSEMARY S. POOLER,
                        Circuit Judge,
            LAWRENCE E. KAHN,
                        District Judge.* **
_____________________________________________________

JOSHUA VAUGHAN,

                                  Plaintiff-Appellant,

                            -v-                                                11-4350-cv

VERMONT LAW SCHOOL, INC., and SHIRLEY JEFFERSON,

                        Defendants-Appellees.***
_____________________________________________________




        *
       The Honorable Lawrence E. Kahn, United States District Court for the Northern District
of New York, sitting by designation.
        **
           Judge Kearse, a member of the original panel, subsequently recused herself. Therefore,
this case is decided by the two remaining members of the panel pursuant to Internal Operating
Procedure E(b) of the Rules of the United States Court of Appeals for the Second Circuit.
        ***
              The Clerk of the Court is directed to change the caption as set out above.
Appearing for Appellant:      W.E. Whittington, Whittington Law Associates, PLLC, Hanover,
                              NH

Appearing for Appellees:      Karen McAndrew (Sophie E. Zdatny, on the brief), Dinse, Knapp,
                              & McAndrew, P.C., Burlington, VT

       Appeal from a judgment of the United States District Court for the District of Vermont
(Sessions, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Plaintiff-Appellant appeals from the district court’s partial denial of leave to amend and
grant of summary judgment, dated August 4, 2011. We assume the parties’ familiarity with the
underlying facts, procedural history, and specification of issues for review.

         “[A] denial of leave to amend on the ground that the proposed new complaint does not
state a claim on which relief can be granted is a decision based on a legal ruling and is one that
we . . . review de novo.” Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162, 185-86 (2d
Cir. 2012). Upon review of Appellant’s amended complaint, we affirm the district court’s
decision that the claims of intentional infliction of emotional distress were insufficient as a
matter of law. As the Vermont Supreme Court has stated, a plaintiff’s burden in proving this tort
is a “heavy one.” Fromson v. State, 848 A.2d 344, 347 (Vt. 2004). The plaintiff “must show
defendants’ conduct was so outrageous in character and so extreme in degree as to go beyond all
possible bounds of decent and tolerable conduct in a civilized community and be regarded as
atrocious and utterly intolerable.” Id. (quoting Dulude v. Fletcher Allen Health Care, Inc., 307
A.2d 390, 398 (Vt. 2000)). The allegations of the complaint, taken in the light most favorable to
the Appellant, simply do not rise to the level of “atrocious and intolerable.”

       “We review a district court’s grant of summary judgment de novo, construing the
evidence in the light most favorable to the nonmoving party and drawing all reasonable
inferences in that party’s favor.” Kuebel v. Black & Decker, Inc., 643 F.3d 352, 358 (2d Cir.
2011). “Summary judgment is appropriate only if the moving party shows that there are no
genuine issues of material fact and that the moving party is entitled to judgment as a matter of
law.” Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003).

        It is undisputed that the relationship between the parties here was contractual in nature
and governed by Vermont Law School’s Code of Conduct. While we recognize that the Code
does not explicitly address the time between admission and enrollment, we conclude that the
School’s authority over admitted students during this time period is reasonably inferred. While
the absence of an express indication of authority here does in no way alter our analysis, we note
that other institutions of higher learning have specifically addressed their jurisdiction over
individuals during this pre-enrollment period in the language of their student codes of conduct.
Such clarity would provide notice to all applicants to conform their behavior accordingly and
would obviate the need for courts to fill in contractual gaps. We conclude that the law school
indeed had the authority to pursue investigative and disciplinary measures for conduct that
occurred prior to enrollment and conduct that occurred off-campus. Furthermore, post-

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secondary institutions have an independent duty to investigate and end harassment “whether or
not the student who was harassed makes a complaint or otherwise asks the school to take
action.” U.S. DEP’T OF EDUCATION, REVISED SEXUAL HARASSMENT GUIDANCE: HARASSMENT
OF STUDENTS BY SCHOOL EMPLOYEES, OTHER STUDENTS, OR THIRD PARTIES 15 (2001).

      We find the Appellant’s remaining arguments to be without merit. Accordingly, the
judgment of the district court hereby is AFFIRMED.

                                                   FOR THE COURT:
                                                   Catherine O’Hagan Wolfe, Clerk




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