                                                        NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          _____________

                              No. 12-1894
                             _____________

                            PAYAL MEHTA,
                                 Appellant

                                    v.

 FAIRLEIGH DICKINSON UNIVERSITY; DR. ROBERT MCGRATH


              On Appeal from the United States District Court
                        for the District of New Jersey
                          (D.C. No. 2-09-cv-00455)
               District Judge: Honorable Susan D. Wigenton
                                ___________

                          Argued March 6, 2013

    Before:   RENDELL, AMBRO, and VANASKIE, Circuit Judges.

                              (Filed: July 15, 2013)

Benjamin D. Light, Esq. (Argued)
Aromando & Light, LLC
195 Fairfield Avenue, Suite 4D
West Caldwell, NJ 07006
      Counsel for Appellant

Gavin J. Rooney, Esq.
Monica Perrette, Esq.
Nicole Bearce Albano, Esq. (Argued)
Lowenstein Sandler, P.C.
65 Livingston Avenue
Roseland, NJ 07068
      Counsel for Appellees
                                     ___________

                                      OPINION
                                     ___________


VANASKIE, Circuit Judge.

      Plaintiff-Appellant Payal Mehta appeals the District Court‟s Order granting

summary judgment in favor of Defendants-Appellees Fairleigh Dickinson University

(“FDU”) and Dr. Robert McGrath (collectively, “Defendants”) on Ms. Mehta‟s

discrimination, breach of contract, defamation, and negligence claims arising from

Defendants‟ remedial response to Ms. Mehta‟s purportedly inadequate performance in

FDU‟s doctoral clinical psychology program. For the following reasons, we will vacate

the District Court‟s Order granting summary judgment for Defendants on the

discrimination claim, and affirm the Order granting summary judgment for Defendants

on the breach of contract, defamation, and negligence claims.

                                            I.

      Ms. Mehta enrolled in the Ph.D. program in clinical psychology at FDU in 2006.

During her second year in the program, Ms. Mehta participated in a clinical component of

the program, also known as a practicum. The practicum allows students to receive

clinical experience under the supervision of faculty members who are licensed

psychologists and who evaluate the students. Ms. Mehta‟s practicum took place at

FDU‟s Center for Psychological Services (“Center”), where she participated in the Adult

Learning Disability & Attention Deficit Hyperactivity Disorder Clinic (“Clinic”).

                                            2
       Ms. Mehta‟s performance in the practicum was found to be deficient.

Specifically, she was informed via email from Defendant Dr. McGrath, the director of the

clinical training program, that the faculty had decided that her inadequate management of

two cases warranted that she “complete another practicum focusing primarily on testing

at the Center for Psychological Services.” (App. 298.)1 Dr. McGrath also wrote that the

faculty “strongly recommended that you sit in on the practicum course again,” and that

“you consider the possibility of individual therapy to address what personal issues could

have contributed to your problems . . . .” (Id.) Dr. McGrath subsequently emailed Ms.

Mehta to inform her that the faculty adopted the proposed remedial conditions and

explained that additional difficulties with meeting her clinical responsibilities could result

in her termination from the program.

       Ms. Mehta did not appeal her remediation plan, and instead resigned from the

Ph.D. program and enrolled in FDU‟s Master‟s Degree program. She received a Master‟s

Degree in May of 2010.

       Claiming that the imposition of a remedial plan was the product of race and gender

discrimination, that Dr. McGrath had defamed her, that FDU had failed to follow proper


       1
         Among other things, the Clinic guidelines and procedures require that students
contact their supervisor immediately after they are assigned a patient and complete their
cases within eight weeks after their initial contact with the patient, unless they receive
permission to deviate from that deadline. Ms. Mehta had not issued reports on
psychological testing of two patients within the allotted eight-week timeframe. She
claims that other doctoral candidates in her program did not submit reports on time, but
were not required to repeat the practicum.

                                              3
procedures in disciplining her, and that Defendants failed to supervise her clinical

training, Ms. Mehta brought an action in state court under the New Jersey Law Against

Discrimination, (“NJLAD”), N.J. Stat. Ann. § 10:5-1, et seq., Title IX of the Education

Amendments of 1972, 20 U.S.C. § 1681, and for defamation, breach of contract, and

negligence. Ms. Mehta premised her discrimination claims on purportedly disparate

treatment of other students and statements suggesting a discriminatory animus allegedly

made by Dr. McGrath and Dr. Lana Tiersky, who served as director of the Clinic. Ms.

Mehta claimed that Dr. McGrath had defamed her by reporting to others that she was a

public safety threat. She further claimed that state law imposed a duty of care on FDU to

supervise students in the doctoral program, and that FDU had failed to comply with the

procedures for imposing disciplinary sanctions found in FDU‟s Code of Student Rights,

Responsibilities and Conduct (“Student Code”).

       Defendants removed the case to federal court pursuant to 28 U.S.C. § 1441, and

moved for summary judgment upon completion of discovery. The District Court granted

summary judgment on Ms. Metha‟s discrimination claims on the ground that Ms. Mehta

failed to present sufficient evidence to establish a prima facie case under the burden-

shifting framework of McDonnell Douglas Corps. v. Green, 411 U.S. 792 (1973), and

that the statements of discriminatory animus attributed to Drs. McGrath and Tiersky were

too remote in time and vague to support a claim under the mixed-motive framework

articulated in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The District Court also

concluded that the public threat statements attributed to Dr. McGrath did not support a

                                             4
defamation action, and that Ms. Mehta‟s negligent supervision and breach of contract

claims were baseless. Ms. Mehta‟s motion for reconsideration was denied, and this

timely appeal followed.

                                             II.

       The District Court had jurisdiction under 28 U.S.C. § 1331, and we have appellate

jurisdiction under 28 U.S.C. § 1291. Summary judgment is appropriate if “there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). A material fact is one “that might affect the outcome of

the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). “For an issue to be genuine, „all that is required is that sufficient evidence

supporting the claimed factual dispute be shown to require a jury or judge to resolve the

parties‟ differing versions of the truth at trial.‟” Haybarger v. Lawrence Cnty. Adult

Prob. & Parole, 667 F.3d 408, 412 (3d Cir. 2012) (quoting Anderson, 477 U.S. at 249).

We review a district court‟s decision to grant summary judgment de novo. Id.

                                   A.     Discrimination

       The NJLAD prohibits places of public accommodation from discriminating in the

provision of accommodations and privileges because of, among other things, a person‟s

race, national origin, nationality, or sex. N.J. Stat. Ann. § 10:5-4. Ms. Mehta contends

that she has provided sufficient evidence to withstand summary judgment under both a

mixed-motive and traditional pretext analysis.



                                              5
                           1.     Price Waterhouse Framework

       Ms. Mehta claims that Dr. McGrath disclosed a discriminatory state of mind when

he allegedly said to her in December of 2007, eight months before the remediation plan

was imposed, that “she would only ever be able to practice psychology in an Indian

community.” (App. 25.) Ms. Mehta further claims that Dr. Tiersky revealed a

discriminatory mindset when she purportedly said to another faculty member that “I can‟t

stand these passive Asian women.” (Id. at 728.)

       Asserting that Dr. Tiersky‟s alleged statement that she could not “stand . . . passive

Asian women,”2 and Dr. McGrath‟s alleged statement that Ms. Mehta would only be able

to practice in an “Indian community” are both direct evidence of discrimination, Ms.

Mehta argues that the mixed-motive framework of Price Waterhouse should shift the

burden to Defendants to show that they would have imposed a remediation plan for Ms.

Mehta even without considering an impermissible factor. We disagree.

       The Supreme Court of New Jersey has adopted our approach, as articulated in

Fakete v. Aetna, Inc., 308 F.3d 335, 339 (3d Cir. 2002), to determine whether evidence of

discrimination is “direct” in the sense that the burden should shift to the defendants under


       2
          The District Court refused to consider the alleged statement by Dr. Tiersky
because it found that it was “untimely” and was apparently a “new theor[y] of liability.”
(See App. 11 n.2.) We disagree with that characterization. Ms. Mehta‟s reference to Dr.
Tiersky‟s statement was not an attempt to assert a new claim or theory of liability. Ms.
Mehta brought a claim for race and sex discrimination, and Dr. Tierksy‟s statement
regarding her feelings toward “passive Asian women” is relevant to such a claim. As a
result, the District Court erred by failing to consider Dr. Tiersky‟s statement.

                                             6
Price Waterhouse. See McDevitt v. Bill Good Builders, Inc., 816 A.2d 164, 169 (N.J.

2003). The Supreme Court of New Jersey has characterized our holding in Fakete as

requiring “a court [to] consider whether a statement made by a decisionmaker associated

with the decisionmaking process actually bore on the employment decision at issue and

communicated proscribed animus.” Id.

       Here, Ms. Mehta has not demonstrated that Dr. Tiersky‟s statement about “passive

Asian women,” which she allegedly made to another faculty member while leaving a

staff meeting, actually bore on the decision to impose Ms. Mehta‟s remediation plan.

Indeed, it is entirely unclear when Dr. Tiersky made that statement. Likewise, Ms. Mehta

has not shown any direct connection between Dr. McGrath‟s statement about her only

being able to work in an Indian community—which he allegedly made eight months

before the remediation plan was imposed—and the decision to implement the

remediation plan. Therefore, we conclude that these two statements do not constitute

direct evidence of discrimination sufficient to shift the burden to Defendants under Price

Waterhouse.3


       3
         In Gross v. FBL Financial Services, 557 U.S. 167 (2009), the Supreme Court
held that the Price Waterhouse mixed-motive burden shifting test did not apply to claims
under the federal Age Discrimination in Employment Act. Id. at 177-79. The New
Jersey state courts have recognized that the Gross decision has created a “thorny issue” as
to whether the Price Waterhouse framework remains viable in age discrimination claims
under the NJLAD, see O’Brien v. Telcordia Techs., Inc., 20 A.3d 1154, 1163 (N.J. Super.
Ct. App. Div. 2011). This “thorny issue” may be just as relevant in race and sex
discrimination claims under the NJLAD, as that statute encompasses the prohibition of
age, race, and sex discrimination within the same provision. See N.J. Stat. Ann. 10:5-4.

                                            7
                          2.     McDonnell Douglas Framework

       Because we find the Price Waterhouse approach inapplicable here, Ms. Mehta

may survive summary judgment on her discrimination claim if she can satisfy the test set

forth in McDonnell Douglas. See Zive v. Stanley Roberts, Inc., 867 A.2d 1133, 1139

(N.J. 2005) (recognizing the New Jersey courts‟ adoption of the McDonnell Douglas test

for NJLAD claims). As the District Court explained, the appropriate adaptation of the

McDonnell Douglas prima facie test for the circumstances in this case requires Ms.

Mehta to show that she: (1) belongs to a protected class; (2) was objectively qualified to

study in the program and met the program‟s legitimate expectations; (3) received an

adverse action; and (4) was treated differently than other similarly situated students. See

Viscik v. Fowler Equip. Co., 800 A.2d 826, 834 (N.J. 2002) (“The precise elements of a

prima facie case must be tailored to the particular circumstances.”). Defendants do not

dispute that Ms. Mehta meets the first and third prongs, but contend that, as the District

Court found, she fails to meet the second and fourth prongs.

       The District Court concluded that Ms. Mehta failed to satisfy the second prong

because it was undisputed that Ms. Mehta did not comply with program requirements

concerning the timely completion of cases and keeping her supervisors informed of the

status of her work with respect to two patients. Contrary to the District Court‟s



Because we conclude that the statements of Drs. Tiersky and McGrath do not constitute
direct evidence of discrimination, however, we need not weigh in on the continued
viability of the Price Waterhouse framework in the context of NJLAD claims.

                                             8
conclusion, we do not find these facts dispositive of whether Ms. Mehta has shown that

she was objectively qualified to study in the program and was meeting FDU‟s legitimate

expectations for purposes of making out a prima facie case of discrimination. In the

employment discrimination context, the Supreme Court of New Jersey has held that, to

satisfy the second prong, “[a]ll that is necessary is that the plaintiff produce evidence

showing that she was actually performing the [position] prior to the” adverse action.

Zive, 867 A.2d at 1143. The court further explained that “even if a plaintiff candidly

acknowledges, on his own case, that some performance issues have arisen, so long as he

adduces evidence that he has, in fact, performed in the position up to the time of [the

adverse action], the slight burden of the second prong is satisfied.” Id. at 1144.

Accordingly, while there may be some questions regarding Ms. Mehta‟s performance, we

conclude that she has satisfied the second prong.

       The District Court concluded that, while Ms. Mehta showed that other students in

the program also did not complete their reports in the specified timeframe and were not

subjected to a remediation plan, she nevertheless failed to satisfy the fourth prong

because she did not present evidence of the comparators‟ race or sex. Ms. Mehta did,

however, certify in her opposition to summary judgment that the three students she

alleged had not been sanctioned for submitting late reports did not “belong[] to a racial

minority group.” (App. 753, ¶ 5.) Her certification that the three comparators were not

members of a racial minority group, combined with patients‟ clinical records showing

that those students also did not complete their cases within the eight-week-timeframe

                                              9
specified in the Clinic‟s procedures, provide sufficient evidence to satisfy the fourth

prong of the prima facie test.

       Because we find that Ms. Mehta has established a prima facie case of

discrimination, we will vacate the District Court‟s grant of summary judgment in favor of

Defendants on that claim.4

                                 B.     Breach of Contract

       Ms. Mehta next argues that the District Court erred in granting summary judgment

for Defendants on her breach of contract claim. New Jersey courts have “reject[ed] the

rigid application of contractual principles to university-student conflicts involving

academic performance and [have] limit[ed] [their] scope of review to a determination [of]

whether the procedures followed [by the school] were in accordance with the institution‟s

rules and regulations.” Mittra v. Univ. of Med. & Dentistry of N.J., 719 A.2d 693, 697

(N.J. Super. Ct. App. Div. 1998); see also Napolitano v. Trs. of Princeton Univ., 453

A.2d 263, 270 (N.J. Super. Ct. App. Div. 1982). Therefore, we will limit our review to


       4
         It is true, as Defendants argue and the District Court found, that Ms. Mehta did
not provide evidence as to whether these three other students apprised their supervisors of
their progress or otherwise received permission to exceed the eight week time line for the
completion of their cases. We believe this fact is more relevant to whether Defendants
can show a legitimate non-discriminatory reason for imposing the remediation plan than
whether Ms. Mehta has established a prima facie case at the outset. Having found that
the District Court erred in granting summary judgment on Ms. Mehta‟s discrimination
claim based on its conclusion that she failed to make out a prima facie case, we need not
address the subsequent steps in the McDonnell Douglas burden-shifting test, which the
District Court did not reach. We express no opinion as to the merits of those issues.


                                             10
whether Defendants complied with the FDU procedures that governed the imposition of a

remediation plan for Ms. Mehta.

       Ms. Mehta contends that the rules and procedures applicable to her allegedly

deficient performance in her clinical work were those contained in the Student Code,

which provides that “[e]xcept in unusual circumstances, no disciplinary sanctions may be

imposed upon students without notice of the nature and cause of the charges; and only

after the opportunity to have a hearing that may include witnesses and the assistance of a

person of their choosing.” (App. 609.) Defendants, however, contend that it is the Ph.D.

Program Policies and Procedures (“Program Procedures”) that are applicable. Those

procedures provide that faculty will review students‟ progress in the program and may

recommend the implementation of a remediation program if problems with a student‟s

performance are identified.5 Because Ms. Mehta‟s purported deficiencies arose in the

context of her academic performance in her clinical work, and the Program Procedures

provide the required steps in implementing a remediation plan, we agree with the District

Court that those procedures apply to her claim, rather than the Student Code. As Ms.

Mehta has not shown that Defendants failed to adhere to Program Procedures, we will


       5
         Under the Program Procedures, upon the faculty‟s recommendation of a
remediation plan, the relevant faculty members must identify in writing the particular
problems to the student and allow the student an opportunity to consult with those faculty
members. In addition, the procedures require the faculty members to present the student
with the prescribed remediation plan at the time of consultation after which the Director
of Clinical Training, the student‟s research advisor, and the student, if he or she agrees,
will sign the remediation plan.

                                            11
affirm the District Court‟s grant of summary judgment in favor of Defendants on Ms.

Mehta‟s breach of contract claim.

                                     C.      Defamation

       Ms. Mehta also claims that statements made by Dr. McGrath calling her a threat to

public safety were defamatory.6 Under New Jersey law, “[a] statement is defamatory if it

is false, communicated to a third person, and tends to lower the subject‟s reputation in the

estimation of the community or to deter third persons from associating with him.” Lynch

v. N.J. Educ. Ass’n, 735 A.2d 1129, 1135 (N.J. 1999). “[O]pinion statements do not

trigger liability unless they imply false underlying objective facts.” Id. at 1137 (citing

Restatement (Second) of Torts § 566). Whether a statement is one of fact or opinion is a

question of law for the court to decide. Kotlikoff v. The Community News, 444 A.2d

1086, 1090 (N.J. 1982). As New Jersey courts have explained, a “pure” opinion, which

is not actionable, “is one that is based on stated facts or facts that are known to the parties

or assumed by them to exist.” Lynch, 735 A.2d at 1137 (internal quotation marks

omitted). A pure opinion also exists “when the maker of the comment does not spell out

the alleged facts on which the opinion is based but both parties to the communication

know the facts or assume their existence and the statement of opinion is obviously based

on those assumed facts as justification for the opinion.” Kotlilkoff, 444 A.2d at 1089. On

       6
        The District Court concluded that the statement included in the email to Ms.
Mehta containing the proposed remediation plan, which recommend that Ms. Mehta
consider individual therapy, was not defamatory. On appeal, Ms. Mehta has not
contested the District Court‟s finding as to that statement.

                                              12
the other hand, a “mixed” opinion, which is actionable, “is one not based on facts that are

stated or assumed by the parties to exist.” Lynch, 735 A.2d at 1137.

       Here, Dr. McGrath sent an email to the faculty in which he stated that, despite the

imposition of the conditions in the remediation plan, he favored permitting Ms. Mehta to

continue with her dissertation. He also noted that “completion of the [dissertation]

research would not hinder our case for terminating her on grounds of protection of the

public.” (App. 304.) Based on the context, we conclude that Dr. McGrath was merely

stating his opinion that allowing Ms. Mehta to continue her research would not

necessarily preclude Defendants from terminating Ms. Mehta from the program—if she

failed to meet the conditions of her remediation plan—based on Defendants‟ concerns for

the safety of the public. The facts upon which Dr. McGrath based his opinion were well

known to the faculty recipients of the email, given that they were aware of Ms. Mehta‟s

purported deficiencies in her clinical work and were involved in the creation of the

remediation plan. As a result, Dr. McGrath‟s statement in the email constituted “pure”

opinion, and therefore is not susceptible to a defamation action.

       In addition, we also believe that Dr. McGrath expressed a pure opinion when he

allegedly told Dr. Cohen, the director of the externship program, that Ms. Mehta was a

“threat to public safety.” According to Dr. McGrath‟s deposition testimony, in

explaining to Dr. Cohen why Defendants were withdrawing their support for Ms. Mehta‟s

placement as an extern, he “raised [Defendants‟] public safety obligation.” (Id. at 232.)

He elaborated that, in addition to the academic component, the psychology program

                                            13
ultimately produces graduates who may become licensed psychologists and, as a result,

Defendants have an obligation to take necessary steps if they believe a student created a

risk to public safety. Dr. McGrath told Dr. Cohen that Ms. Mehta‟s performance “met

the criteria for” creating such a risk. (Id.) He informed Dr. Cohen that Defendants were

concerned that Ms. Mehta did not follow up with a patient in the Clinic and that she had

not submitted her testing paperwork on time. Thus, in his communication to Dr. Cohen,

Dr. McGrath stated the facts upon which he based his opinion regarding the public safety

concern.7 Therefore, his communication meets the requirements of a pure opinion and,

accordingly, we will affirm the District Court‟s grant of summary judgment in favor of

Defendants on Ms. Mehta‟s defamation claim.

                                      D.     Negligence

       Ms. Mehta‟s final claim on appeal is that Defendants breached their duty to

supervise her testing of patients and were therefore negligent. Ms. Mehta‟s chief

argument is that two New Jersey laws create a duty to supervise student psychologists.

       Ms. Mehta first points to N.J. Stat. Ann. § 45:14B-6(c), which provides that

psychology students are not limited in their activity if they are supervised and their

training status is indicated. She relies on the principle that “the violation of a legislated

       7
         We recognize that, in his deposition, Dr. McGrath initially testified that he had
not formulated an opinion that Ms. Mehta was a threat to public safety. However, after
further questioning regarding his communication with Dr. Cohen, Dr. McGrath
explained the information he relayed to Dr. Cohen and clarified how that information
formed the basis of his opinion that Ms. Mehta‟s performance required Defendants to
cancel her externship.

                                              14
standard of conduct may be regarded as evidence of negligence if the plaintiff was a

member of the class for whose benefit the standard was established.” Alloway v.

Bradlees, Inc. 723 A.2d 960, 967 (N.J. 1999). The statutory scheme of which § 45:14B-6

is a part, among other things, prohibits unlicensed persons from representing themselves

as licensed psychologists and creates a cause of action for patients harmed by the

violation of the licensing provisions. See N.J. Stat. Ann. §§ 45:14B-5, 45:14B-42. We

agree with the District Court that New Jersey enacted this scheme to benefit patients

rather than psychology students.

       The other law upon which Ms. Mehta bases her negligence claim is found in the

New Jersey Administrative Code‟s exemption of graduate program psychology students

from licensure requirements if they are under supervision. See N.J. Admin. Code §

13:42-1.4. The only obligations the regulation places on the supervisor are to ensure that:

              1. The student‟s participation in the training program is a
              requirement of the graduate psychology program;
              2. The student‟s transcript . . . reflects prior academic training
              specific to the duties assigned to the student; and
              3. The student is clearly identified as a student intern or
              extern prior to engaging in psychological practice.

Id. The District Court correctly concluded that this provision creates no duty of care for

supervisors vis-à-vis students. Therefore, we will affirm the District Court‟s grant of

summary judgment in favor of Defendants on Ms. Mehta‟s negligence claim.

                                             III.




                                             15
       For the foregoing reasons, we will vacate the Order of the District Court granting

summary judgment in favor of Defendants on the discrimination claim, affirm the Order

granting summary judgment in favor of Defendants on the remaining claims, and remand

for further proceedings consistent with this opinion.




                                            16
