                                                                                  FILED
                                                                             Oct 30 2017, 11:08 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




ATTORNEYS FOR APPELLANTS                                   ATTORNEY FOR APPELLEE
Stephen R. Pennell                                         Edward W. Hearn
William P. Kealey                                          Johnson & Bell, P.C.
Stuart & Branigin, LLP                                     Crown Point, Indiana
Lafayette, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Board Of Trustees Of Purdue                                October 30, 2017
University, d/b/a Purdue                                   Court of Appeals Case No.
University and Purdue Calumet;                             45A04-1612-PL-2728
Thomas Keon, individually and                              Appeal from the Lake Superior
in his official capacity as                                Court
Chancellor of Purdue University                            The Honorable John R. Pera,
Calumet; Saul Lerner,                                      Judge
individually and in his official                           Trial Court Cause No.
capacity as Professor at Purdue                            45D10-1205-PL-49
University Calumet; Miriam
Joyce, individually and in her
official capacity as Professor at
Purdue University Calumet;
Kathleen Tobin, individually and
in her official capacity as
Professor at Purdue University
Calumet; Colin Fewer,
individually and in his official
capacity as Professor at Purdue
University Calumet; Fahima Ali
Jackson, individually and in her



Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017                            Page 1 of 42
      official capacity as Professor at
      Purdue University Calumet,
      Appellants-Defendants,

              v.

      Dr. Maurice Eisenstein,
      Appellee-Plaintiff



      Barnes, Judge.


                                              Case Summary
[1]   In this interlocutory appeal, the Board of Trustees of Purdue University, d/b/a

      Purdue University and Purdue Calumet, Thomas Keon, individually and in his

      official capacity as Chancellor of Purdue University Calumet, and Saul Lerner,

      Miriam Joyce, Kathleen Tobin, Colin Fewer, and Fahima Ali Jackson,

      individually and in their official capacities as professors at Purdue University

      Calumet (collectively, “Defendants”), appeal the trial court’s denial of their

      motion for summary judgment in an action brought by Maurice Eisenstein. On

      cross-appeal, Eisenstein appeals the trial court’s denial of his motion for

      summary judgment in his action against the Defendants. We affirm the denial

      of Eisenstein’s motion for summary judgment and reverse the denial of

      Defendants’ motion for summary judgment.




      Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017   Page 2 of 42
                                                       Issues
[2]   The parties raise numerous issues on appeal and cross-appeal, which we

      consolidate and restate as:


                     I.          whether the trial court properly denied the
                                 Defendants’ motion to strike;

                    II.          whether the trial court properly denied summary
                                 judgment on Eisenstein’s 42 U.S.C. § 1983 claims;

                   III.          whether the trial court properly denied summary
                                 judgment on Eisenstein’s § 1985 claim;

                   IV.           whether the trial court properly denied summary
                                 judgment on Eisenstein’s concerted action claims;

                    V.           whether the trial court properly denied summary
                                 judgment on Eisenstein’s breach of contract claim;
                                 and

                   VI.           whether the trial court properly denied summary
                                 judgment on Eisenstein’s declaratory relief claim.

                                                       Facts1
[3]   Purdue has an Anti-Harassment Policy (“Policy”) that provides:




      1
        Eisenstein argues that the “majority of evidence upon which Purdue relies is inadmissible hearsay” and that
      we should not consider the evidence on appeal. Appellee’s Br. p. 75. The Defendants argue that Eisenstein
      has waived his argument by failing to raise hearsay issues to the trial court. We agree. “Issues not raised
      before the trial court on summary judgment cannot be argued for the first time on appeal and are therefore
      waived.” Yoost v. Zalcberg, 925 N.E.2d 763, 770 (Ind. Ct. App. 2010), trans. denied. Eisenstein did not raise
      the hearsay argument before the trial court and has waived the issue.
      Eisenstein also argues that the Defendants failed to cite to the record or authority. “A litigant who fails to
      support his arguments with appropriate citations to legal authority and record evidence waives those
      arguments for our review.” Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015); Ind. Appellate Rule 46(A)(8)(a).
      Unless we find a party’s “non-compliance with the rule sufficiently substantial to impede our consideration of
      the issue raised,” we will address the merits of the claim. Pierce, 29 N.E.3d at 1267. Eisenstein cites to

      Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017                       Page 3 of 42
        Purdue University is committed to maintaining an environment
        that recognizes the inherent worth and dignity of every person;
        fosters tolerance, sensitivity, understanding and mutual respect;
        and encourages its members to strive to reach their potential.
        The most effective way to work toward preventing Harassment is
        through education that emphasizes respect for every individual. .
        . . Harassment in the workplace or the educational environment
        is unacceptable conduct and will not be tolerated. Purdue
        University is committed to maintaining an educational and work
        climate for faculty, staff and students that is positive and free
        from all forms of Harassment. This policy addresses Harassment
        in all forms, including Harassment toward individuals with
        legally protected status for reasons of race, gender, religion,
        color, age, national origin or ancestry, genetic information or
        disability and Harassment toward individuals for other reasons
        such as sexual orientation, gender identity, gender expression,
        marital status or parental status.


Appellants’ App. Vol. IV p. 224. The Policy also provides: “Retaliation against

faculty members, staff members or students for reporting or complaining of

Harassment, for assisting or participating in the investigation of a complaint of

Harassment, or for enforcing this policy is strictly prohibited.” Id. The Policy

addresses freedom of speech and provides:


        Freedom of thought and expression are the lifeblood of our
        academic community and require an atmosphere of mutual
        respect among diverse persons, groups and ideas. The
        maintenance of mutually respectful behavior is a precondition for
        the vigorous exchange of ideas, and it is the policy of the



numerous pages of Appellants’ Brief without providing any specific examples of deficiencies and without
demonstrating that Defendants’ alleged noncompliance impedes our consideration of the appeal.
Consequently, we will address the merits of Defendants’ claims.

Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017                     Page 4 of 42
              University to promote such behavior in all forms of expression
              and conduct. The University reaffirms its commitment to
              freedom of speech as guaranteed by the First Amendment to the
              United States Constitution. Accordingly, any form of speech or
              conduct that is protected by the First Amendment is not subject
              to this policy. The University reaffirms its commitment to
              academic freedom, which is essential to its educational mission
              and is critical to diversity and intellectual life.


      Id. at 225.


[4]   Individuals who wish to file a complaint for harassment may do so under

      Purdue’s Procedures for Resolving Complaints of Discrimination and

      Harassment (“Procedures”). The Procedures require a complaint to be filed

      within 120 days of an incident and require notice to the respondent and an

      opportunity to be heard. After a complaint is filed, the Chancellor is required

      to assign an investigator, and the investigator is required to deliver a report on

      the investigation to the Chancellor. Within fifteen days of receiving the report,

      the Chancellor may convene a three-member panel to advise him or her. After

      the meeting, the Chancellor “shall make a written determination whether a

      violation of University policy has occurred.” Id. at 237. If the complaint is not

      substantiated, “reasonable efforts will be taken to restore the reputation of the

      Respondent.” Id.


[5]   Eisenstein is an associate professor of political science at Purdue University

      Calumet. Lerner, Joyce, Tobin, Fewer, and Jackson are also professors at

      Purdue University Calumet. In the spring semester of 2011, a student was

      taking Eisenstein’s Introduction Into Judaism class. On the first day of class,

      Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017   Page 5 of 42
Eisenstein said, “I am glad none of them [Muslims] are in this class.”

Appellants’ App. Vol. II p. 174. Eisenstein also said, “Slavery is nothing

compared to what Jews went through” and “The world would be a better place

if someone took a gun and shot a bullet into a Muslim’s head.” Id. at 174-75.

The student recorded Eisenstein during a subsequent class. That recording

included the following statements:


        ‘‘No peace treaty is possible for Jews in a state with Muslims.”


        “There is no basis for racism or discrimination for others when
        compared to Judaism.”


        “Everybody complains (Blacks, Hispanics, Women, Asians and
        Arabs-all crying); however, others have only gone through bad
        times unlike the Jews.”


        “Our idiot President now, whatever his name is.”


        “Muslims kill everybody else.’’


        ‘‘Nothing happened to Blacks in the 1960’s-not real problems.”


        ‘‘You ca[n] say whatever you want to say about Jews if you are
        Muslim or Arab and everybody puts up with it.”


        “Why is it that there is a problem with lynching a Black, but
        there is no problem with lynching a Jew?”


        ‘‘Israel [is] hated based on envy and greed.”



Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017   Page 6 of 42
              ‘‘Why are Arabs/Muslims so opposed to Israel?” “You cannot
              explain it because there is no rational explanation. Muslims have
              historically made no difference. For thousand[s] of years,
              Muslims haven’t contributed anything to society. Oil doesn’t
              count because it is underground and has nothing to do with being
              Muslim. Except for raping four year-olds, Muslims are not good
              for anything.”


              “Luxembourg (a small city in Europe) has produced more
              scholarly work then [sic] all of the Muslim countries. There is no
              research, no acclaimed university and no travel worth while in
              Muslim countries.”


              ‘“If they [Muslims] didn’t exist would any of you miss them or
              care?”


      Id. at 175-76.


[6]   Student Wala Issa was enrolled in one of Eisenstein’s classes in August 2011.

      During the class, Eisenstein stated:


              Muslims are corrupt and they are corrupting the world; Muslims
              are no good and all they are good for is their food; Muslims are
              such bad people; Muslims are hated by everyone with a passion,
              especially Indians; Muslims are terrorists; Muslims settle things
              by killing people who are not from the same religion.


      Id. at 172. Issa spoke to the Department Chair, Professor Richard Rupp, about

      Eisenstein’s class, and Issa was withdrawn from the class and placed in

      independent study with Rupp. Rupp discussed the matter with Eisenstein. In

      October and November 2011, Eisenstein posted several anti-Muslim statements



      Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017   Page 7 of 42
      on his personal Facebook page, including a statement that Issa is a “Jew hater.”

      Id. at 174.


[7]   As a result of Eisenstein’s statements in class and on Facebook, some students

      and faculty created a private Facebook group to discuss Eisenstein, held a

      protest on campus, and started a change.org petition to have Eisenstein’s

      employment with Purdue terminated. A public forum was held to discuss the

      students’ concerns. During this time, some students and faculty were

      communicating privately with each other regarding Eisenstein’s behavior and

      how to file complaints against him. On November 15, 2011, Professor Jackson

      met with Chancellor Keon and Professor Rupp to get information regarding

      procedures for filing a complaint against Eisenstein. Chancellor Keon told

      Jackson that, if she decided to file a complaint, the complaint should be based

      on substance, not feelings. Chancellor Keon also informed Jackson of a time

      limit for filing complaints. Jackson later sent an email to Tobin and Joyce

      advising them that Chancellor Keon suggested quickly filing complaints against

      Eisenstein and that the focus of the complaints should be “based on substance

      and not emotion.” Appellants’ App. Vol. VI p. 223. At some point in

      November 2011, Tobin also met with Chancellor Keon. Chancellor Keon

      advised Tobin that he could not give her details on the complaints.


[8]   In November 2011, Chancellor Keon received nine complaints against

      Eisenstein pursuant to Purdue’s Policy and Procedures. The complaints were

      filed by three students, the Muslim Student Association, and Professors Joyce,



      Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017   Page 8 of 42
       Jackson, Lerner, Tobin, and Fewer. Chancellor Keon appointed Mariah Butler

       to investigate the complaints.


[9]    Professors Lerner and Joyce later filed additional complaints regarding

       retaliation by Eisenstein. Joyce alleged that, after she filed her complaint

       against Eisenstein, she saw him in the hallway of a campus building and said

       hello and that Eisenstein responded, “Now I know why your son committed

       suicide.” Appellants’ App. Vol. II p. 178. Lerner alleged that Eisenstein had

       sent him and others an email that stated: “My mother cursed [Lerner] before

       her death (a true orthodox curse). He knows why. Therefore, there will be no

       association with him. I consider anything from him to be in and of itself cursed

       and therefore untouchable.” Appellants’ App. Vol. III p. 89. Butler was again

       assigned to investigate the complaints.


[10]   Butler wrote a report on her investigation, which she provided to Chancellor

       Keon. Butler concluded that Eisenstein violated the Policy by retaliating

       against Joyce and by harassing Issa. Chancellor Keon formed a panel to

       conduct a hearing. Eisenstein was present at the hearing with his attorney.

       After the hearing, the members of the panel made recommendations to

       Chancellor Keon. Chancellor Keon determined that Eisenstein had not

       breached the Policy except with regard to the retaliation complaints filed by

       Lerner and Joyce. Chancellor Keon issued letters of reprimand to Eisenstein on

       February 22, 2012. Per the Procedures, Chancellor Keon placed the letters in

       Eisenstein’s personnel file and sent them to Joyce and Lerner. Eisenstein

       appealed the determination, but the appeal was denied.

       Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017   Page 9 of 42
[11]   During this time period, Eisenstein contacted Foundation for Individual Rights

       in Education (“FIRE”), an organization that provides assistance regarding free

       speech, and provided it with all of the relevant complaints and documents.

       FIRE wrote to Purdue and posted the letter to its website. It also posted

       Chancellor Keon’s response on its website. Eisenstein also contacted members

       of the media and the state legislature regarding the complaints against him.

       After receiving Chancellor Keon’s February 22, 2012 letter, Eisenstein told

       members of the media and posted on his blog that he had been cleared in the

       nine complaints. At a Faculty Senate meeting on March 7, 2012, Joyce

       informed the Faculty Senate that Eisenstein’s statements to the media were

       incorrect, that he had been found to have retaliated against her, and that he had

       been reprimanded.


[12]   Also in March 2012, a cartoon drawn by a student was published in the student

       newspaper depicting Eisenstein as a puppeteer controlling the university’s

       administration. Comments and discussions regarding Eisenstein were posted

       on a campus-wide listserv, and some of the Defendants discussed sending or

       sent letters regarding Eisenstein to other agencies or groups.


[13]   In May 2012, Eisenstein filed a complaint against the Defendants. Eisenstein

       alleged “administrative violations” against Purdue, violations of “Indiana Civil

       Rights under [the] Indiana Constitution” against the Defendants, and violations

       of the “right to privacy” against Joyce and Purdue. Appellants’ App. Vol. II p.

       33-41. The Defendants filed a motion to dismiss, which the trial court granted.



       Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017   Page 10 of 42
[14]   Shortly before the trial court granted the motion to dismiss, Chancellor Keon

       received a complaint against Eisenstein from Professor Yahya Kamalipour

       regarding an entry on Eisenstein’s personal blog entitled “Purdue Professor

       Yahya R. Kamalipour – How Anti-American?” In the blog entry, Eisenstein


               described Kamalipour as a “Muslim who was ‘born and spend
               [sic] most of his upbringing in Iran.’” Eisenstein also said
               Kamalipour “has continued to enjoy the support of the Iranian
               Mullahs and most anti-American Iranian, if not other Muslims
               with the equivalent agenda.” Eisenstein quoted a statement he
               claimed Kamalipour made “in a Muslim journal,” and then
               asserted Kamalipour “is the justifier of Islamic hatred and death
               squads against women, Jews, Gays, Christians, and other
               infidels. He defends by his statements and actions the beheading
               and hanging in Iran of all Gays and Lesbians.”


       Id. at 158. Eisenstein had a link to his personal blog in the signature line of his

       Purdue email account, and the link was included in each email that Eisenstein

       sent. Chancellor Keon again appointed an investigator, David Blom.

       Chancellor Keon ultimately dismissed the complaint against Eisenstein, but he

       did not think the content of the blog met the “civility standards” at Purdue. Id.

       at 159. Chancellor Keon required Eisenstein to remove the link to his personal

       blog from the signature block of his university email. Chancellor Keon did not

       ask Eisenstein to “change the content of his blog or stop posting about Purdue

       University or its faculty.” Id.


[15]   Eisenstein filed an amended complaint, which he later amended again. In his

       second amended complaint, Eisenstein included the following claims: (1)


       Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017   Page 11 of 42
       declaratory judgment against the Defendants that Eisenstein did not violate the

       Policy, that the Policy is void for vagueness, and that the Policy and its

       application to him are unconstitutional; (2) “concerted action in commission”

       of intentional infliction of emotional distress, deprivation of civil rights, and

       defamation; (3) breach of Eisenstein’s employment contract; (4) a violation of

       Eisenstein’s free speech rights filed under 42 U.S.C. § 1983; (5) a deprivation of

       Eisenstein’s due process rights filed under 42 U.S.C. § 1983; (6) a conspiracy to

       violate Eisenstein’s civil rights filed under 42 U.S.C. § 1985; and (7) another

       violation of Eisenstein’s free speech rights filed under 42 U.S.C. § 1983 as a

       result of Chancellor Keon ordering Eisenstein to remove a link to his blog from

       his university email signature block. Appellants’ App. Vol. II p. 106.


[16]   In November 2014, the Defendants filed a motion for summary judgment.

       Eisenstein filed a response in October 2015 and a cross-motion for summary

       judgment. Eisenstein designated, in part, his affidavit. In November 2015, the

       Defendants filed a response and a motion to strike portions of Eisenstein’s

       affidavit. In October 2016, the trial court denied the Defendants’ motion for

       summary judgment, denied Eisenstein’s cross-motion for summary judgment,

       and denied the Defendants’ motion to strike Eisenstein’s affidavit. Defendants

       filed a motion to certify the order for interlocutory appeal and stay the

       proceedings, which the trial court granted. We accepted the Defendants’

       interlocutory appeal pursuant to Indiana Appellate Rule 14(B).




       Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017   Page 12 of 42
                                                     Analysis
[17]   The parties’ arguments concern the trial court’s denial of Defendants’ motion

       for summary judgment and the trial court’s denial of Eisenstein’s cross-motion

       for summary judgment. Summary judgment is appropriate only when the

       moving party shows there are no genuine issues of material fact for trial and the

       moving party is entitled to judgment as a matter of law. Schoettmer v. Wright,

       992 N.E.2d 702, 705 (Ind. 2013); see also Ind. Trial Rule 56(C). Once that

       showing is made, the burden shifts to the non-moving party to rebut.

       Schoettmer, 992 N.E.2d at 705-06. When ruling on the motion, the trial court

       construes all evidence and resolves all doubts in favor of the non-moving party.

       Id. at 706. We review the trial court’s ruling on a motion for summary

       judgment de novo, and we take “care to ensure that no party is denied his day

       in court.” Id.


                                            I. Eisenstein’s Affidavit

[18]   The Defendants filed a motion to strike portions of Eisenstein’s affidavit, which

       the trial court denied. Affidavits in support of or in opposition to a motion for

       summary judgment are governed by Indiana Trial Rule 56(E), which provides

       in relevant part: “Supporting and opposing affidavits shall be made on personal

       knowledge, shall set forth such facts as would be admissible in evidence, and

       shall show affirmatively that the affiant is competent to testify to the matters

       stated therein.” The trial court has broad discretion in ruling on the

       admissibility of evidence. Price v. Freeland, 832 N.E.2d 1036, 1039 (Ind. Ct.

       App. 2005). “This discretion extends to rulings on motions to strike affidavits

       Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017   Page 13 of 42
       on the grounds that they fail to comply with the summary judgment rules.” Id.;

       see also Doe v. Shults-Lewis Child and Family Services, Inc., 718 N.E.2d 738, 749

       (Ind. 1999) (“An affidavit which does not satisfy the requirements of T.R. 56(E)

       is subject to a motion to strike . . . .”).


[19]   The Defendants’ motion to strike concerned paragraphs 32 through 38, which

       provided:


                    32.     In response to my FOIA requests, I received a packet of
                            e-mails on January 17, 2012, from Kathleen Tobin’s
                            Purdue e-mail account. These e-mails revealed that
                            Thomas Keon, Fahima Jackson, Miriam Joyce,
                            Kathleen Tobin, Saul Lerner, and Colin Fewer were
                            working together to file frivolous complaints against
                            me, and encouraging students and faculty members to
                            follow suit. These e-mails were the first notice that I
                            received of my colleagues’ conduct against me.


                    33.     Following the November 2011 Investigation, Fahima
                            Jackson, Miriam Joyce, Kathleen Tobin, Saul Lerner,
                            and Colin Fewer have openly disparaged me to other
                            members of the Purdue community.


                    34.     As a result of the events of Purdue’s 2011 and 2013
                            investigations, and the pattern of conduct that Fahima
                            Jackson, Miriam Joyce, Kathleen Tobin, Saul Lerner,
                            and Colin Fewer engaged in toward me for over four
                            years, I have experienced extreme emotional distress.


                    35.     My professional reputation has been damaged by
                            Purdue’s 2011 and 2013 investigations of me, resulting
                            in a dramatic decrease in student enrollment in my
                            courses.

       Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017   Page 14 of 42
                    36.     I have suffered additional penalties, as I have not been
                            allowed to teach summer school or take sabbatical, and
                            I was given a miniscule retroactive raise for the 2011
                            and 2012 (it was one year and I am not sure which one
                            it was. I filed a grievance against it an [sic] lost) school
                            year.


                    37.     I believe that Fahima Jackson, Miriam Joyce, Kathleen
                            Tobin, Saul Lerner, Thomas Keon and Colin Fewer,
                            the Board of Trustees, and the Purdue students
                            involved in Purdue’s investigation targeted me because
                            of my race, religious affiliations, and political beliefs.


                    38.     Likewise, I believe that the events of Purdue’s
                            investigation were motivated by my race, religious
                            affiliations, and political beliefs.


       Appellants’ App. Vol. VI pp. 165-66.


[20]   The Defendants argue that these paragraphs should be stricken because they

       contain inadmissible conclusions rather than personal knowledge. In

       particular, the Defendants point to Eisenstein’s statements that the Defendants

       were “working together to file frivolous complaints,” “openly disparaged” him,

       he “experienced extreme emotional distress,” his “professional reputation has

       been damaged,” he has “suffered additional penalties,” the Defendants

       “targeted [him[ because of [his] race, religious affiliations, and political beliefs,”

       and Purdue’s investigation was “motivated by [his] race, religious affiliations,

       and political beliefs.” Id.; Appellants’ Br. p. 66. The Defendants contend that

       Eisenstein’s statements are “nothing more than his own conclusory opinions


       Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017     Page 15 of 42
       which are not supported by any facts or admissible evidence.” Appellants’ Br.

       p. 66.


[21]   Our review of Eisenstein’s affidavit demonstrates that the following portions of

       the affidavit are factual and based on Eisenstein’s personal knowledge:

       paragraph 32 with the exception of the word “frivolous,” paragraph 33,

       paragraph 34, portions of paragraph 35 (identifying a “dramatic decrease in

       student enrollment in my courses”), and portions of paragraph 36 (“I have not

       been allowed to teach summer school or take sabbatical, and I was given a

       miniscule retroactive raise for the 2011 and 2012 (it was one year and I am not

       sure which one it was. I filed a grievance against it an [sic] lost) school year.”).

       The word “frivolous” in paragraph 32 and remainder of paragraphs 35, 36, 37,

       and 38, however, are speculation, opinion, and conclusory statements. The

       statements are merely Eisenstein’s interpretation and opinion rather than facts

       in his personal knowledge. Consequently, the trial court partially erred when it

       denied the Defendants’ motion to strike.


                                        II. 42 U.S.C. § 1983 Claims

[22]   The Defendants argue that the trial court erred by denying their motion for

       summary judgment regarding Eisenstein’s claims under 42 U.S.C. § 1983.

       Eisenstein’s complaint included three Section 1983 claims—a violation of free

       speech related to Purdue’s Policy and the complaints filed against him, a

       deprivation of due process related to the Policy and Procedures, and a second

       violation of free speech related to Chancellor Keon’s instruction to remove a



       Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017   Page 16 of 42
       link for Eisenstein’s personal blog from his signature block of his Purdue email

       account.


[23]   Section 1983 provides:


               Every person who, under color of any statute, ordinance,
               regulation, custom, or usage, of any State or Territory or the
               District of Columbia, subjects, or causes to be subjected, any
               citizen of the United States or other person within the jurisdiction
               thereof to the deprivation of any rights, privileges, or immunities
               secured by the Constitution and laws, shall be liable to the party
               injured in an action at law, suit in equity, or other proper
               proceeding for redress . . . .


       42 U.S.C. § 1983. “[I]t is first necessary to determine whether a particular

       defendant is a ‘person’ within the meaning of the statute and thus, amenable to

       suit.” Ross v. Indiana State Bd. of Nursing, 790 N.E.2d 110, 117 (Ind. Ct. App.

       2003). Five general rules have emerged regarding whether an entity is a

       “person” within the meaning of Section 1983:


               1) a municipality, municipal official, or other local governmental
               unit or political subdivision may be sued for retrospective or
               prospective relief; 2) a state or state agency may not be sued
               under section 1983 regardless of the type of relief requested; 3) a
               state official cannot be sued in his official capacity for
               retrospective relief but can be sued for prospective relief; 4) a
               state official can be sued in his individual capacity for
               retrospective relief; and 5) an entity with Eleventh Amendment [2]



       2
        The Eleventh Amendment to the Constitution of the United States provides: “The Judicial power of the
       United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against
       one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

       Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017                     Page 17 of 42
               immunity in federal court is not considered a section 1983
               “person” in state court.


       Id. Eisenstein’s Section 1983 claims named all of the Defendants, which

       included Purdue’s Board of Trustees and Chancellor Keon and the individual

       professors in their official and individual capacities.


[24]   We first address the parties’ arguments regarding the Defendants in their official

       capacities. The Defendants argue Purdue and the individual Defendants acting

       in their official capacities have immunity under the Eleventh Amendment.3

       “Under the Eleventh Amendment, a state may not be sued under federal law in

       either federal or state court without the state’s consent or Congress’ legitimate

       abrogation of the state’s sovereign immunity.” Gaff v. Indiana-Purdue Univ. of

       Fort Wayne, 45 N.E.3d 458, 463 (Ind. Ct. App. 2015), relevant portion summarily

       aff’d and vacated in part on other grounds by 51 N.E.3d 1163 (Ind. 2016). Our

       courts have held that Purdue University is an arm of the state entitled to

       sovereign immunity under the Eleventh Amendment. See id. Therefore,

       Purdue cannot be sued in state court for damages for federal constitutional

       violations. See id. (holding that Indiana-Purdue University of Fort Wayne

       cannot be sued in state court for federal constitutional violations).




       3
         Eisenstein argues that the Defendants waived any Eleventh Amendment immunity by failing to raise the
       issue before the trial court. However, the Defendants raised the Eleventh Amendment immunity argument
       in their motion for summary judgment. See Appellants’ App. Vol. V pp. 85-89.

       Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017                 Page 18 of 42
[25]   Further, “[a]lthough the Eleventh Amendment bars all claims against Purdue

       and the damages claims against its officials in their official capacities, it does

       not thwart the claims against the officials in their official capacities for the

       injunctive relief of reinstatement.” Kashani v. Purdue Univ., 813 F.2d 843, 848

       (7th Cir. 1987), cert. denied; see also Chang v. Purdue Univ., 985 N.E.2d 35, 49

       (Ind. Ct. App. 2013) (“[A] state official may be sued in his or her official

       capacity for prospective relief such as an injunction for a violation of a person’s

       due process rights under § 1983.”), trans. denied. Eisenstein’s Section 1983

       claims requested compensatory damages, punitive damages, and attorney fees,

       not prospective relief to prevent future constitutional violations. See Appellants’

       App. Vol. II pp. 111-12.


[26]   Separately, Eisenstein also requested declaratory judgment that he did not

       violate the Policy and that the Policy is unconstitutional and violates due

       process and the exercise of free speech. He states that the declaratory judgment

       request qualifies as injunctive relief, but he fails to elaborate on this proposition

       or tie the declaratory judgment claim to prospective relief related to his Section

       1983 claims. See Appellee’s Br. p. 27. Although declaratory relief can in

       certain circumstances qualify as prospective relief where there are continuing

       violations, see Green v. Mansour, 474 U.S. 64, 73, 106 S. Ct. 423, 428 (1985),

       Eisenstein failed to explain any such continuing violations. The Defendants

       demonstrated that they were entitled to summary judgment on this issue, and

       Eisenstein failed to respond with a cogent argument demonstrating otherwise.

       We conclude that the trial court erred by denying Defendants’ motion for


       Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017   Page 19 of 42
       summary judgment regarding Eisenstein’s Section 1983 claim against Purdue

       and the individual Defendants in their official capacities.


[27]   We next address whether the Defendants were entitled to summary judgment

       on Eisenstein’s Section 1983 claims against them in their individual capacities.4

       A state official sued in his personal capacity is a “person” under Section 1983

       even when money damages are requested. Severson v. Bd. of Trustees of Purdue

       Univ., 777 N.E.2d 1181, 1194 (Ind. Ct. App. 2002), trans. denied; see also Chang,

       985 N.E.2d at 49 (“[A] state official may be sued in his or her individual

       capacity for retrospective relief under § 1983.”). Defendants argue, however,

       that: (1) Lerner, Joyce, Tobin, Fewer, and Jackson were not acting under color

       of state law; (2) the individual Defendants have absolute immunity to the

       Section 1983 claims; (3) the individual Defendants have qualified immunity; (4)

       Eisenstein’s claims against the individual Defendants fail under the Pickering

       Balancing Test5; and (5) Eisenstein’s Section 1983 claims are without merit.


[28]   We conclude that the Defendants’ absolute immunity argument is dispositive.

       When a Section 1983 claim is asserted against a state official in his or her




       4
         Although Eisenstein’s complaint alleges these claims against each of the Defendants, some of the
       allegations plainly do not apply to all of the Defendants. For example, Count VII concerned a Section 1983
       claim related to Chancellor Keon’s order that Eisenstein remove a link to his personal blog from his
       university email signature block. This claim clearly has nothing to do with the other professors.
       Additionally, Count V alleged a Section 1983 violation through the university’s enforcement of the Policy
       and Procedures, which also does not pertain to the other professors. Eisenstein’s appellee’s brief does not
       lend clarity to these claims. It is unclear how one Defendant could be held liable for the alleged misconduct
       of other Defendants.
       5
           See Pickering v. Bd. of Education, 391 U.S. 563, 88 S. Ct. 1731 (1968).


       Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017                       Page 20 of 42
       individual capacity, he or she “may assert privileges of absolute or qualified

       immunity but may not assert immunity under the Eleventh Amendment.” Ying

       Jing Gan v. City of New York, 996 F.2d 522, 529 (2nd Cir. 1993). In support of

       their argument that the Defendants are entitled to absolute immunity in their

       individual capacities, they rely on our supreme court’s opinion in Hartman v.

       Keri, 883 N.E.2d 774 (Ind. 2008). There, graduate students at Indiana

       University-Purdue University at Fort Wayne (“IPFW”) filed complaints with

       the university alleging sexual harassment by a professor. Pursuant to Purdue’s

       anti-harassment policy and procedures, the same policy at issue here, the

       chancellor assigned an investigator, who found the complaints credible and

       recommended that the professor be removed from his teaching responsibilities.

       The investigator’s conclusions were reviewed and approved by a three-person

       panel and by the chancellor. The professor appealed the decision to the

       president of Purdue University, who upheld the decision. The professor then

       filed a complaint against the students for libel, slander, and malicious

       interference with the professor’s employment contract. The trial court denied

       the students’ motion for summary judgment.


[29]   On appeal, our supreme court held that the students’ statements were protected

       by absolute privilege. The court noted:


               Indiana law has long recognized an absolute privilege that
               protects all relevant statements made in the course of a judicial
               proceeding, regardless of the truth or motive behind the
               statements. Wilkins v. Hyde, 142 Ind. 260, 261, 41 N.E. 536, 536
               (1895); Van Eaton v. Fink, 697 N.E.2d 490, 494 (Ind. Ct. App.
               1998). “The reason upon which the rule is founded is the
       Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017   Page 21 of 42
               necessity of preserving the due administration of justice,”
               Wilkins, 142 Ind. at 261, 41 N.E. at 536, by providing actors in
               judicial proceedings with the freedom to participate without fear
               of future defamation claims. Van Eaton, 697 N.E.2d at 494
               (citing Briggs v. Clinton County Bank & Trust Co., 452 N.E.2d 989,
               997 (Ind. Ct. App. 1983)).


               Policies similar to Purdue’s are commonly found in institutions
               of higher education. At least three states have held that
               communications to school authorities raising complaints against
               educators enjoy the same absolute privilege the law accords to
               statements in judicial 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.


       Hartman, 883 N.E.2d at 777-78 (footnote omitted).


[30]   The court noted that the students followed Purdue’s established procedures and

       “[p]rotecting their complaints with anything less than an absolute privilege

       could chill some legitimate complaints for fear of retaliatory litigation.” Id. at

       778.


               Other 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. 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 facts of this case illustrate the
               importance of such a procedure.


       Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017   Page 22 of 42
       Id. The court noted that the students were subject to academic discipline for

       abuse of process, which is a “substantial deterrent to false reporting.” Id.

       “Although Purdue’s procedure may lack the trappings of a traditional court

       proceeding, it is orderly and reasonably fair, requires ‘appropriate discipline’ for

       those who file knowingly false or malicious complaints, and promises

       reasonable efforts to restore the reputation of anyone charged with

       discrimination or harassment that proves unsubstantiated.” Id. at 778-79.

       Consequently, our supreme court found that the students’ motion for summary

       judgment should have been granted.


[31]   Defendants argue that they were acting in a quasi-judicial capacity and, thus,

       under Hartman, have absolute immunity from Eisenstein’s Section 1983 claims.

       In response to Defendants’ arguments, Eisenstein argues only that Hartman is

       inapplicable because the Defendants are faculty, not students, and that they

       made “defamatory statements against Eisenstein in their complaints, at Keon’s

       suggestion, that severely damaged Eisenstein’s reputation on campus.”6

       Appellee’s Br. p. 34. Even though the defendants in Hartman were students

       rather than faculty, the same propositions apply here. Like the students, the

       faculty are subject to discipline for filing knowingly false or malicious

       complaints. Based on Hartman, Lerner, Joyce, Tobin, Fewer, and Jackson, the




       6
         Eisenstein argues that Purdue’s Policy and Procedures are not quasi-judicial and, thus, absolute privilege is
       inapplicable. However, this argument conflicts with our supreme court’s decision in Hartman, which applied
       the absolute privilege.

       Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017                        Page 23 of 42
       professors that filed complaints against Eisenstein, are entitled to absolute

       immunity.


[32]   Although Chancellor Keon did not file a complaint under the Policy and

       Procedures, he is also entitled to absolute immunity here. As Defendants

       argued in their motion for summary judgment, “[t]he entire process, from the

       filing of the complaints, to Keon’s appointment of an investigator, to the

       investigation and the reprimand, was conducted as a part of the quasi-judicial

       process outlined in the Procedures.” Appellants’ App. Vol. V p. 93. “It is well-

       settled that judges are entitled to absolute judicial immunity for all actions taken

       in the judge's judicial capacity, unless those actions are taken in the complete

       absence of any jurisdiction.” Droscha v. Shepherd, 931 N.E.2d 882, 888-89 (Ind.

       Ct. App. 2010). “The underlying purpose of the immunity is to preserve

       judicial independence in the decision-making process.” Id. at 889. “The same

       policies that underlie the grant of absolute judicial immunity to judges justify

       the grant of immunity to non-judicial officers who perform quasi-judicial

       functions.” Id. Chancellor Keon was acting in a quasi-judicial role and is also

       entitled to absolute immunity. See, e.g., Gressley v. Deutsch, 890 F. Supp. 1474,

       1491 (D. Wyo. 1994) (holding that the individual members of the Board of

       Trustees were entitled to quasi-judicial or absolute immunity from damages in a

       42 U.S.C. § 1983 action); Tobin for Governor v. Illinois State Bd. of Elections, 268

       F.3d 517, 522 (7th Cir. 2001) (holding that board members were entitled to

       absolute immunity to protect them “from harassment and intimidation so that

       they can exercise their independent judgment), cert. denied. We conclude that


       Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017   Page 24 of 42
       the trial court erred by denying the individual Defendants’ motion for summary

       judgment regarding the Section 1983 claims.7


                                         III. 42 U.S.C. § 1985 Claim

[33]   Defendants argue that the trial court erred when it denied their motion for

       summary judgment regarding Eisenstein’s claim under 42 U.S.C. § 1985(3). In

       his complaint, Eisenstein alleged that the Defendants engaged in a conspiracy

       against him by filing the complaints and finding him in violation of Purdue’s

       Policy.


[34]   42 U.S.C. Section 1985(3) is “a remedial statute that prohibits conspiracies to

       deprive a person of rights guaranteed by the Constitution or federal laws.” Keri

       v. Bd. of Trustees of Purdue Univ., 458 F.3d 620, 641-42 (7th Cir. 2006), overruled

       on other grounds by Hill v. Tangherlini, 724 F.3d 965 (7th Cir. 2013). It provides:


               If two or more persons in any State or Territory conspire . . . for
               the purpose of depriving, either directly or indirectly, any person
               or class of persons of the equal protection of the laws, or of equal
               privileges and immunities under the laws . . . the party so injured
               or deprived may have an action for the recovery of damages
               occasioned by such injury or deprivation, against any one or
               more of the conspirators.




       7
        Eisenstein argues on cross-appeal that Purdue violated his due process rights by “launching an investigation
       premised entirely on protected speech.” Appellee’s Br. p. 74. Eisenstein also argues that Chancellor Keon
       deprived him of his First Amendment rights by ordering him to remove a link to his personal blog from his
       email signature block. Given our determination that Eisenstein’s claims are barred by the Eleventh
       Amendment and the individual defendants had absolute immunity, we need not address the merits of
       Eisenstein’s claims.

       Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017                      Page 25 of 42
       42 U.S.C. § 1985(3). The courts have identified four elements necessary to

       make out a valid case under § 1985(3):


               (1) a conspiracy; (2) a purpose of depriving, either directly or
               indirectly, any person or class of persons of the equal protection
               of the laws, or of equal privileges and immunities under the laws;
               (3) an act in furtherance of the conspiracy; and (4) an injury to
               his person or property or a deprivation of any right or privilege of
               a citizen of the United States.


       Keri, 458 F.3d at 642 (quoting Quinones v. Szorc, 771 F.2d 289, 291 n.1 (7th Cir.

       1985)).


[35]   In their motion for summary judgment, the Defendants argued that they were

       entitled to summary judgment for the same reasons that they were entitled to

       summary judgment on the Section 1983 claims. Purdue and the Defendants in

       their official capacities are immune from Section 1985(3) damages under the

       Eleventh Amendment. See id. at 641 (holding that Purdue was immune from

       the plaintiff’s claims for damages under §§ 1981, 1985(3), and 1986 pursuant to

       the Eleventh Amendment). The Defendants in their official capacities are not

       immune for claims of prospective relief. Id. However, Eisenstein makes no

       cogent argument that he is requesting prospective relief on his Section 1985(3)

       claim. Consequently, the trial court erred by denying the Defendants’ motion

       for summary judgment in their official capacities on this claim.


[36]   As for Eisenstein’s claim against the Defendants in their individual capacities,

       the Defendant again argue that they had absolute immunity. As with a Section

       1983 claim, absolute immunity may be asserted in response to a Section 1985(3)
       Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017   Page 26 of 42
       claim. Williams v. Rappeport, 699 F. Supp. 501, 506 (D. Md. 1988), aff’d sub

       nom. Williams v. Dvoskin, 879 F.2d 863 (4th Cir. 1989), cert. denied. For the same

       reasons discussed in our analysis of Eisenstein’s Section 1983 claims, we agree

       that the Defendants in their individual capacities are entitled to absolute

       immunity for their participation in the complaints filed against Eisenstein and

       the process outlined by the Policy and Procedures. The trial court erred when it

       denied the Defendants’ motion for summary judgment on this issue.


                                             IV. Concerted Action

[37]   Eisenstein alleged in his complaint that Lerner, Joyce, Tobin, Fewer, Jackson,

       and Chancellor Keon engaged in a “concerted action” to deprive him of his

       civil rights, damage his professional reputation, and intentionally inflict

       emotional distress. Appellants’ App. Vol. II p. 106. “‘A civil conspiracy is a

       combination of two or more persons who engage in a concerted action to

       accomplish an unlawful purpose or to accomplish some lawful purpose by

       unlawful means.’” Birge v. Town of Linden, 57 N.E.3d 839, 845 (Ind. Ct. App.

       2016) (quoting Miller v. Cent. Ind. Cmty. Found., 11 N.E.3d 944, 962 (Ind. Ct.

       App. 2014), trans. denied). “Civil conspiracy is not an independent cause of

       action.” Id. at 846. Civil conspiracy “must be alleged with an underlying tort.”

       Id. “Unlike criminal conspiracy, the gist of a civil conspiracy is not the

       unlawful agreement, but the damage caused by acts committed in pursuance of

       the agreement.” Id. Thus, an allegation of civil conspiracy is “just another

       way of asserting a concerted action in the commission of a tort.” Id. In order to

       state a claim, Eisenstein must demonstrate a “concerted action in the

       Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017   Page 27 of 42
       commission of a tort that resulted in damages.” K.M.K. v. A.K., 908 N.E.2d

       658, 664 (Ind. Ct. App. 2009), trans. denied. “[A]n allegation of civil conspiracy

       will not survive based only upon impermissible speculation.” Miller, 11 N.E.3d

       at 963. If we conclude that summary judgment should have been entered with

       respect to the underlying torts alleged by Eisenstein, then Eisenstein’s concerted

       action claim would fail. See id. at 963. We will address each of the tort

       allegations raised by Eisenstein separately.


                                          A. Civil Rights Violation

[38]   To the extent Eisenstein contends that the alleged concerted action was based

       on a deprivation of his civil rights, we note that this claim is essentially

       duplicative of Eisenstein’s Section 1983 and Section 1985 claims. “‘[A]

       ‘conspiracy’ to violate § 1983 is not a violation of a state statute independent of

       a § 1983 violation.’” Id. (quoting City of Warsaw v. Orban, 884 N.E.2d 262, 269

       (Ind. Ct. App. 2007), trans. denied). We have already held that the trial court

       erred by denying the Defendants’ motion for summary judgment regarding the

       Section 1983 and Section 1985 claims. Eisenstein makes no argument that this

       claim is distinct from his Section 1983 or 1985 claims. Consequently, the trial

       court erred by denying the Defendants’ motion for summary judgment

       regarding Eisenstein’s claim of concerted action to deprive him of his civil

       rights.




       Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017   Page 28 of 42
                                                  B. Defamation

[39]   Eisenstein also contends that the Defendants engaged in a concerted action to

       defame him. In his complaint, Eisenstein alleged that Lerner, Joyce, Tobin,

       Fewer, Jackson, and Chancellor Keon damaged his professional reputation “by

       making false and unfounded allegations of harassment and inappropriate

       teaching methodologies against him.” Appellants’ App. Vol. II p. 106.


[40]   “Defamation is ‘that which tends to injure reputation or to diminish esteem,

       respect, good will, or confidence in the plaintiff, or to excite derogatory feelings

       or opinions about the plaintiff.’” Miller, 11 N.E.3d at 955 (quoting Davidson v.

       Perron, 716 N.E.2d 29, 37 (Ind. Ct. App. 1999), trans. denied). To establish

       defamation, a plaintiff must prove the following elements: (1) a communication

       with defamatory imputation; (2) malice; (3) publication; and (4) damages. Id. at

       955-56. A plaintiff who sues for defamation must set out the alleged

       defamatory statement in his complaint. Id.


               There is sound reason for this policy, as the absence of a
               statement in the complaint works a detriment on both the court
               and the defendant. The court is handicapped without the
               statement since, without it, the court cannot actually determine if
               the statement is legally defamatory. Journal-Gazette Co. v.
               Bandido’s Inc., 712 N.E.2d 446, 457 (Ind. 1999). The defendant is
               placed on an unfair footing since the absence of the statement
               denies [him] the opportunity to prepare appropriate defenses.


       Miller, 11 N.E.3d at 956 (quoting Trail v. Boys & Girls Clubs of Nw. Indiana, 845

       N.E.2d 130, 137 (Ind. 2006)). “When specific statements that are alleged to be


       Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017   Page 29 of 42
       defamatory have not been sufficiently identified in a plaintiff’s complaint, an

       award of summary judgment for the defendant is proper.” Id.


[41]   On appeal, the Defendants contend, in part, that Eisenstein has failed to

       identify in his complaint the allegedly defamatory statements made by them.

       We agree. The complaint’s vague allegations about the Defendants’ conduct

       are insufficient to support a defamation claim. The complaint fails to

       specifically identify the allegedly defamatory statements and fails to tie any

       statement to the individual Defendants. The trial court erred by denying the

       Defendants’ motion for summary judgment on this basis.


[42]   Alternatively, Defendants argue that the trial court erred by denying their

       motion for summary judgment regarding Eisenstein’s defamation claim because

       the Defendants’ actions were protected by absolute privilege. Absolute

       privilege is a defense to a defamation action. See Hartman, 883 N.E.2d at 777-

       79 (granting summary judgment to students in a professor’s defamation action

       based on absolute privilege where the students had lodged complaints with the

       university pursuant to the university’s anti-harassment policy). “An absolute

       privilege bars an action for defamation even when the information was false,

       and was maliciously and knowingly published.” Hoffman v. Roberto, 578 N.E.2d

       701, 710 (Ind. Ct. App. 1991), trans. denied. In his Appellee’s Brief, Eisenstein

       vaguely identifies allegedly defamatory statements made in the complaints

       against him to Purdue. See Appellee’s Br. pp. 53-57. We have determined that

       the Defendants’ statements in their complaints to the university regarding

       Eisenstein are protected by absolute privilege in the context of Eisenstein’s

       Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017   Page 30 of 42
       Section 1983 and 1985 claims. Likewise, the Defendants’ statements in their

       complaints are protected by absolute privilege in the context of Eisenstein’s

       defamation claim.


                            C. Intentional Infliction of Emotional Distress

[43]   Next, the Defendants argue that the trial court erred by denying their motion

       for summary judgment regarding Eisenstein’s claim of conspiracy to commit

       intentional infliction of emotional distress. Eisenstein alleged in his complaint

       that the individual Defendants “engaged in a concerted action to intentionally

       inflict emotional distress on [him].” Appellants’ App. Vol. II p. 106. Eisenstein

       alleged that their conduct was “extreme and outrageous” and that he suffered

       damages as a result. Id. at 107.


[44]   “Intentional infliction of emotional distress is committed by ‘one who by

       extreme and outrageous conduct intentionally or recklessly causes severe

       emotional distress to another. . . .’” Miller, 11 N.E.3d at 959 (quoting Ledbetter

       v. Ross, 725 N.E.2d 120, 123-24 (Ind. Ct. App. 2000)). “The intent to harm

       emotionally constitutes the basis of the tort.” Id. The elements of intentional

       infliction of emotional distress are that a defendant (1) engages in extreme and

       outrageous conduct that (2) intentionally or recklessly (3) causes (4) severe

       emotional distress to another. Id. at 959-60. “The requirements to prove this

       tort are ‘rigorous.’” Id. at 960 (quoting Ledbetter, 725 N.E.2d at 124).

       “Intentional infliction of emotional distress is found where conduct exceeds all

       bounds usually tolerated by a decent society and causes mental distress of a

       very serious kind.” Id. “Liability has been found only where the conduct has
       Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017   Page 31 of 42
       been so outrageous in character, and so extreme in degree, as to go beyond all

       possible bounds of decency, and to be regarded as atrocious, and utterly

       intolerable in a civilized community.” Id. (quoting Bradley v. Hall, 720 N.E.2d

       747, 752-53 (Ind. Ct. App. 1999)). In the appropriate case, an intentional

       infliction of emotional distress claim may be disposed of by summary judgment.

       See, e.g., id. (affirming the trial court’s grant of summary judgment on the

       plaintiff’s intentional infliction of emotional distress claim); Cullison v. Medley,

       570 N.E.2d 27, 31 (Ind. 1991) (holding that the trial court properly granted

       summary judgment on the plaintiff’s intentional infliction of emotional distress

       claim).


[45]   In support of his argument, Eisenstein contends that “Keon, Joyce, Jackson,

       Lerner, Tobin, Fewer, and their co-conspirators have engaged in long-term

       surveillance, harassment, and disparagement of Eisenstein over a period of over

       four years.” Appellee’s Br. p. 59. Eisenstein argues that the Defendants

       “stoked racial tensions on Purdue’s campus in an effort to have his employment

       terminated” and that they “encouraged the formation of a large clandestine

       Facebook group through which the Defendants and their co-conspirators

       discussed strategies for having Eisenstein terminated, monitored his Facebook

       and blog posts, and exchanged ‘evidence’ for dissemination across campus,

       such as the misleadingly edited recording of his lectures.” Id. at 59-60. Finally,

       Eisenstein argues that the Defendants encouraged student and co-conspirators

       to file frivolous complaints against him with the university. Eisenstein argues

       that Chancellor Keon was aware that the complaints were frivolous but


       Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017   Page 32 of 42
       “subjected him to a frivolous investigation, and even ordered the issuance of the

       formal reprimands for speech that was not sanctionable.” Id. at 60.


[46]   The fact that the Defendants filed complaints pursuant to the Policy and

       Procedures after Eisenstein’s offensive statements is not “extreme and

       outrageous conduct” that would support an intentional infliction of emotional

       distress claim. Miller, 11 N.E.3d at 960. Further, the fact that some of the

       Defendants were part of a private Facebook group, read Eisenstein’s public

       Facebook and blog posts, discussed Eisenstein’s conduct among themselves and

       others, or sent letters to other organizations regarding Eisenstein’s conduct is

       similarly not the extreme and outrageous conduct required to support such a

       claim. Finally, the fact that Chancellor Keon ordered an investigation of the

       complaints, as required by the Procedures, simply is not extreme and

       outrageous. Eisenstein seeks to treat all contact between faculty members,

       between students, and between faculty and students regarding his behavior as a

       conspiracy against him. Eisenstein must show, however, that the Defendants

       were trying to “accomplish an unlawful purpose or to accomplish some lawful

       purpose by unlawful means.” Birge, 57 N.E.3d at 845. Eisenstein has failed to

       demonstrate such an unlawful purpose or unlawful means.8 The designated

       evidence simply does not support a determination that the Defendants




       8
        Eisenstein contends in his cross-appeal that he is entitled to summary judgment because “there is absolutely
       no dispute of fact that Defendants engaged in a conspiracy against [him] to deprive [him] of his civil rights in
       violation of § 1983 and § 1985(3), and to commit the torts of defamation and IIED.” Appellee’s Br. p. 72.
       Because Eisenstein fails to demonstrate an unlawful purpose or unlawful means, the trial court properly
       denied his cross-motion for summary judgment.

       Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017                        Page 33 of 42
       conspired to intentionally inflicted emotional distress on Eisenstein. The trial

       court erred by denying the Defendants’ motion for summary judgment on this

       claim.


                                             V. Breach of Contract

[47]   The Defendants argue that the trial court erred by denying their motion for

       summary judgment regarding Eisenstein’s breach of contract claim. In his

       complaint, Eisenstein alleged that Purdue breached its employment contract

       with him by finding that he committed retaliation and by failing to dismiss the

       retaliation complaint filed by Joyce and Lerner. Eisenstein alleged that

       Chancellor Keon violated Purdue’s Policies and Procedures by releasing his

       determination to “some of the Defendants and others” and that Joyce violated

       Purdue’s policies by disclosing confidential documents. Appellants’ App. Vol.

       II p. 108. On appeal, Eisenstein contends that the Defendants breached his

       employment contract by failing to follow the Policy and Procedures in many

       ways.


[48]   Although Eisenstein’s claim is against all of the Defendants, see Appellants’

       App. Vol. II p. 107, he does not explain how Lerner, Joyce, Tobin, Fewer, and

       Jackson could have breached an employment contract that he had with Purdue.

       “Generally, only a party to the contract can be held liable for its breach because

       contractual obligations are personal in nature.” Rodriguez v. Tech Credit Union

       Corp., 824 N.E.2d 442, 447 (Ind. Ct. App. 2005). These parties were entitled to

       summary judgment on Eisenstein’s breach of contract claim.


       Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017   Page 34 of 42
[49]   As for the remaining Defendants, they argue on appeal, in part, that they are

       entitled to summary judgment on the breach of employment agreement claim

       because the Policy and Procedures relied upon by Eisenstein are not a part of

       his employment contract. Eisenstein argues that he executed Purdue’s Form

       19, which provides:


               The individual named above is hereby appointed to the faculty of
               Purdue University for the limited term stated above, and hereby
               accepts such appointment of the terms and conductions provided
               herein and in Executive Memorandum No. B-50 (Terms and
               Conditions of Employment of Faculty members), or succeeding
               documents, which by this reference is made part of this
               Agreement. . . . . The undersigned appointee understands that it
               is his/her responsibility to become acquainted with those
               Executive memoranda and University policies which are related
               to Purdue employment, including but not limited to, B-4, I.A.1,
               B-48, and the Faculty and Staff Handbook.


       Appellee’s App. Vol. IV p. 38. Eisenstein contends that this provision means

       that “both Purdue and Eisenstein mutually intended to be bound by all of

       Purdue’s policies that relate to his employment . . . .” Appellee’s Br. p. 63.


[50]   Form 19 merely states that the faculty member should become “acquainted

       with” the Faculty and Staff Handbook. Appellee’s App. Vol. IV p. 38. It does

       not incorporate the Faculty and Staff Handbook into the employment contract.

       Further, the preamble of the Faculty and Staff Handbook states that the

       Handbook “does not create an express or implied contract or guarantee




       Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017   Page 35 of 42
       employment for any term.” Appellants’ App. Vol. V p. 149. The Policy and

       Procedures are incorporated into this Handbook.9


[51]   The Southern District of Indiana and the Seventh Circuit addressed a similar

       argument in Packer v. Trustees of Indiana Univ. Sch. of Med., 73 F.Supp.3d 1030

       (S.D. Ind. 2014), affirmed by Packer v. Trustees of Indiana Univ. Sch. of Med., 800

       F.3d 843 (7th Cir. 2015). There, a professor brought a breach of contract claim

       against a university based on her tenure status. The tenure policies that she

       relied upon were part of the university’s Academic Handbook. However, the

       preamble of the Handbook stated that it did not create a contract and did not

       create any legal rights. The Southern District of Indiana held that “[b]ecause

       the Academic Handbook explicitly disclaims any creation of a contract, [the

       professor] cannot rely upon these policies as a basis for her breach of contract

       claim.” Packer, 73 F.Supp.3d at 1041. Consequently, the court found that the

       university was entitled to summary judgment on the breach of contract claim.

       On appeal, the Seventh Circuit agreed, concluding that her breach of contract

       claim was “wholly unsupported” and that the district court properly disposed of

       the claim on summary judgment. Packer, 800 F.3d at 852.




       9
         Eisenstein argues that the Policy and Procedures are not part of the Handbook because the online
       Handbook only contains brief summaries of the university policies with links to the policies. Eisenstein relies
       only on printouts from the website. Defendants designated evidence from the Purdue University Interim
       Vice President of Human Resources that the Policy and Procedures are incorporated in the Handbook. See
       Appellants’ App. Vol. V pp. 146-47. Given the evidence designated by the Defendants and Eisenstein’s
       failure to designate relevant evidence in support of his claim, we conclude that the Policy and Procedures are
       part of the Handbook.

       Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017                       Page 36 of 42
[52]   Likewise, here, Eisenstein’s employment contract only suggests that he become

       acquainted with the Handbook. The Handbook specifically provides that it

       “does not create an express or implied contract or guarantee employment for

       any term.” Appellants’ App. Vol. V p. 149. Indiana courts have long held that

       employee handbooks that contain such disclaimers do not create a contract for

       employment. See Orr v. Westminster Village North, Inc., 689 N.E.2d 712, 721

       (Ind. 1997). The Policy and Procedures were not part of Eisenstein’s

       employment contract, and Eisenstein cannot rely on them to support a breach

       of contract claim. The trial court erred by denying the Defendants’ motion for

       summary judgment regarding Eisenstein’s breach of contract claim.


                                            VI. Declaratory Relief

[53]   Finally, the Defendants argue that the trial court erred by denying their motion

       for summary judgment on Eisenstein’s declaratory relief claim. In his

       complaint, Eisenstein sought a judicial determination that he did not violate the

       Policy by engaging in retaliation, that the Policy is “void for vagueness,” that

       his conduct was “free speech and therefore the Policy is unconstitutional as

       applied to” him, and that “Purdue’s policy is unconstitutional and violates Due

       Process and Freedom of Speech under the state and federal constitutions.”

       Appellants’ App. Vol. II p. 105.


[54]   In their motion for summary judgment, the Defendants argued that they were

       entitled to summary judgment because: (1) Eisenstein’s petition for judicial

       determination had already been dismissed; (2) Eisenstein lacked standing to

       challenge the Policy; (3) the Policy provisions are not vague; and (4) Chancellor
       Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017   Page 37 of 42
       Keon was entitled to qualified immunity. In response, Eisenstein argued that:

       (1) his statements did not amount to retaliation; (2) the Policy is

       unconstitutionally vague and overbroad; (3) he was seeking a declaratory

       judgment not judicial review; and (4) Chancellor Keon was not entitled to

       qualified immunity. On appeal, the Defendants argue only that Eisenstein does

       not have standing to challenge the Policy and Procedures and that the Policy

       and Procedures are not unconstitutionally vague or overbroad.


[55]   “The doctrine of standing focuses on whether the complaining party is the

       proper person to invoke the Court’s power.” Barnette v. U.S. Architects, LLP, 15

       N.E.3d 1, 11 (Ind. Ct. App. 2014). “The standing requirement restrains the

       judiciary to resolving only those controversies in which the complaining party

       has a demonstrable injury.” Id. “In order to establish standing, a plaintiff must

       show that he or she has sustained, or was in immediate danger of sustaining,

       some direct injury as a result of the conduct at issue.” Id. Because Eisenstein

       was reprimanded based only on the retaliation provisions, he has standing to

       challenge that provision only.


[56]   Next, Defendants argue that Eisenstein did not have standing to challenge the

       retaliation policy based on vagueness grounds because his behavior was “so

       clearly retaliatory that it is obvious the Policy and Procedures would apply to

       him.” Appellants’ Br. p. 62. Defendants contend that “‘[o]ne to whose

       conduct a statute clearly applies may not successfully challenge it for

       vagueness.’” Bird v. County of Allen, 639 N.E.2d 320, 332 (Ind. Ct. App. 1994)

       (quoting Parker v. Levy, 417 U.S. 733, 756, 94 S. Ct. 2547, 2562 (1974)).

       Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017   Page 38 of 42
[57]   The Policy provided that “Retaliation against faculty members, staff members

       or students for reporting or complaining of Harassment, for assisting or

       participating in the investigation of a complaint of Harassment, or for enforcing

       this policy is strictly prohibited.” Appellants’ App. Vol. VII p. 159.

       Retaliation was defined as “Any overt or covert act of reprisal, interference,

       restraint, penalty, discrimination, intimidation or harassment against any

       person or group for exercising rights under this policy.” Id. at 162. Further, the

       Procedures provided:


               Retaliation against any person for reporting or complaining of
               discrimination and/or harassment, assisting or participating in
               the investigation of a complaint of discrimination and/or
               harassment, or enforcing University policies with respect to
               discrimination and/or harassment is strictly prohibited. Overt or
               covert acts of reprisal, interference, restraint, penalty,
               discrimination, intimidation or harassment against an individual
               or group for exercising rights or performing duties under these
               Procedures will be subject to appropriate and prompt disciplinary
               or remedial action.


       Id. at 172. Eisenstein’s retaliatory conduct involved telling Joyce, “Now I know

       why your son committed suicide,” after she had filed a complaint against him

       pursuant to the Policy and Procedures. Appellants’ App. Vol. VI p. 178. As for

       Lerner, after Lerner filed his complaint, Eisenstein sent him and others an email

       that stated: “My mother cursed [Lerner] before her death (a true orthodox

       curse). He knows why. Therefore, there will be no association with him. I

       consider anything from him to be in and of itself cursed and therefore

       untouchable.” Appellants’ App. Vol. III p. 89.

       Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017   Page 39 of 42
[58]   Although he denies making the statement to Joyce, Eisenstein characterizes his

       statements as “minor work place slight[s]” and an expression of free speech.

       Appellants’ App. Vol. VI p. 41. Eisenstein argued that he was “entitled to

       express his disapproval to Joyce because she perpetuated an injustice against

       him and threatened his employment by joining the defendants’ conspiracy.” Id.

       at 42. Similarly, he argued that he was “certainly entitled to respond with anger

       toward Lerner’s final decision to harm Eisenstein alongside their colleagues.”

       Id. at 43. He conceded in his summary judgment memorandum that “insulting

       someone over the suicide of their child is certainly taboo” and that Lerner’s

       allegations make Eisenstein appear to be “a mean-spirited bully, who attacked a

       close friend of his parents with a very demeaning insult.” Id. at 124-25. It is

       clear from Eisenstein’s arguments that the statements were overt acts made to

       harass Joyce and Lerner for filing their complaints. We conclude that

       Eisenstein’s conduct “falls within the narrow category of acts so egregious that,

       despite any protestations to the contrary, he would have had no doubt that they

       were proscribed.” Bird, 639 N.E.2d at 332 (quoting Aiello v. City of Wilmington,

       426 F.Supp. 1272, 1292-93 (D.Del. 1976)).


[59]   Next, Defendants argue that the retaliation provisions are not vague. The

       policy could be “void for vagueness only if it is vague as applied to the precise

       circumstances of the instant case.” Parks v. Madison County, 783 N.E.2d 711,

       722 (Ind. Ct. App. 2002), trans. denied. A provision “is not void for vagueness if

       individuals of ordinary intelligence could comprehend it to the extent that it

       would fairly inform them of the generally proscribed conduct.” Pittman v. State,


       Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017   Page 40 of 42
       45 N.E.3d 805, 816 (Ind. Ct. App. 2015). Eisenstein argues that the provisions

       are void for vagueness because they fail to “provide notice of the conduct

       proscribed and allow[] for discriminatory enforcement by failing to provide

       standards governing its enforcement.” Appellee’s Br. p. 68. According to

       Eisenstein, the provisions lack “standards limiting the discretion of the

       administrators applying its policies in a way that respects the mandates of the

       First Amendment.” Id. at 69. The Policy and Procedures barred overt acts of

       reprisal and harassment against faculty members for exercising their rights to

       file complaints. The meaning of the retaliation provisions is such that

       individuals of ordinary intelligence could comprehend them to the extent that

       they would fairly inform people of the generally proscribed conduct. We

       conclude that the language is not vague.


[60]   Next, Defendants argue that the Policy is not overbroad. The overbreadth

       doctrine is “‘designed to protect innocent persons from having the legitimate

       exercise of their constitutionally protected freedoms fall within the ambit of a

       statute written more broadly than needed to proscribe illegitimate and

       unprotected conduct.’” Parks, 783 N.E.2d at 723 (quoting Matheney v. State,

       688 N.E.2d 883, 905 (Ind. 1997), cert. denied). Eisenstein argues that the

       provisions are overbroad because they threaten “to punish individuals for any

       speech between a complainant and the respondent that may be offensive, no

       matter how trivial, regardless of the merits of the complaints, and even if the

       speech occurs outside of work.” Id. at 70-71. We find nothing to indicate that

       the retaliation provisions were written more broadly than needed to proscribe


       Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017   Page 41 of 42
       illegitimate and unprotected conduct. Eisenstein seems to argue that anything

       he said to Lerner or Joyce should be protected by the First Amendment. The

       Policy specifically provides that it does not apply to speech or conduct protected

       by the First Amendment. The conduct here was clearly retaliatory, and

       Eisenstein admits that it was in response to the complaints. The provisions are

       not overbroad. The trial court erred by denying the Defendants’ motion for

       summary judgment on this claim. See, e.g., Corlett v. Oakland Univ. Bd. of

       Trustees, 958 F.Supp.2d 795, 811 (E.D. Mich. 2013) (dismissing a student’s

       claim that the university’s harassment policy was overbroad and vague).


                                                  Conclusion
[61]   We conclude that the trial court erred by denying the Defendants’ motion for

       summary judgment and that the trial court properly denied Eisenstein’s motion

       for summary judgment. We affirm in part and reverse in part.


[62]   Affirmed in part and reversed in part.


       May, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 45A04-1612-PL-2728| October 30, 2017   Page 42 of 42
