Case: 18-5936 Document: 35 Filed: 02/19/2019 Page: 1

Case No. 18-5936

_____________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT
_____________________

PRIANKA BOSE,

Plaintiff – Appellant

v.

ROBERTO DE LA SALUD BEA AND

RHODES COLLEGE,

Defendants – Appellees
_____________________

On Appeal from the United States District Court

for the Western District of Tennessee (Case No. 2:16-cv-02308)
The Honorable John T. Fowlkes, Jr.
_____________________

APPELLANT’S REPLY BRIEF

_____________________

Bryce Ashby Adam W. Hansen

DONATI LAW, PLLC Counsel of Record
1545 Union Avenue Eleanor E. Frisch
Memphis, TN 38104 APOLLO LAW LLC
3217 Hennepin Avenue South
Brice M. Timmons Suite 7
BLACK MCLAREN JONES RYLAND Minneapolis, MN 55408
& GRIFFEE PC (612) 927-2969
530 Oak Court Drive, Suite 360
Memphis, TN 38117
Counsel for Appellant
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TABLE OF CONTENTS

INTRODUCTION ...................................................................................... 1

ARGUMENT ............................................................................................. 3

I. APPELLEES MISCHARACTERIZE THE RECORD

EVIDENCE ...................................................................................... 3

A. Bose Made Her Retaliation Claim During the Honor

Council Hearing and in Her Internal Appeal and Title
IX Complaint .......................................................................... 3

B. Rhodes Had Actual Notice of Bea’s Retaliatory Motive ......... 5

C. Rhodes Never Investigated Whether Bea’s Cheating

Allegations Were Retaliatory .................................................. 6

D. The Record Evidence Overwhelmingly Supports the

Conclusion that Bea Framed Bose for Cheating .................... 7

E. Bea’s Testimony and Fabricated Evidence Formed the

Entire Basis for Bose’s Expulsion ........................................... 8

F. Bea Allowed All His Students to Take Tests Early in His

Office...................................................................................... 10

II. CAT’S-PAW THEORY IS AVAILABLE TO BOSE AND

ESTABLISHES A CAUSAL CONNECTION BETWEEN HER
EXPULSION AND HER SEX ........................................................ 10

A. Cat’s-Paw Theory Is Not a Doctrine of Respondeat

Superior ................................................................................. 11

B. Cat’s Paw Theory Aligns with Gebser................................... 17

C. Bose Did Not Abandon Any Elements of Her Retaliation

Claim ..................................................................................... 19

D. Bose Is Not Required to Establish Deliberate

Indifference ........................................................................... 21

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E. Although Not Required, Bose Has Established that

Rhodes Was Deliberately Indifferent ................................... 23

III. BOSE STATED A CLAIM FOR DEFAMATION .......................... 25

A. Bea’s Publication Argument Is Waived and Unavailing...... 26

B. Bea Has Not Demonstrated that Tennessee Courts

Would Extend the Quasi-Judicial Privilege to a Whole
New Realm of Private Proceedings ....................................... 29

CONCLUSION ........................................................................................ 32

CERTIFICATE OF COMPLIANCE ............................................................

CERTIFICATE OF SERVICE.....................................................................

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TABLE OF AUTHORITIES

CASES

Arendale v. City of Memphis,

519 F.3d 587 (6th Cir. 2008) ............................................................... 12

Boody v. Garrison,
636 S.W.2d 715 (Tenn. Ct. App. 1981) ................................................. 2

Brundage v. Cumberland County,

357 S.W.3d 361 (Tenn. 2011) ......................................................... 30-31

Caldwell v. Bartlett City Sch.,

No. 2:16-CV-2608-JPM-TMP, 2017 WL 8819282 (W.D. Tenn.
Oct. 17, 2017) ...................................................................................... 12

Campion, Barrow & Assocs., Inc. v. City of Springfield,

559 F.3d 765 (7th Cir. 2009) ............................................................... 12

Chew v. City & Cnty. of San Francisco,

No. 13-CV-05286-MEJ, 2016 WL 631924 (N.D. Cal. Feb. 17,
2016) ............................................................................................... 15-16

Christian v. Wal-Mart Stores, Inc.,

252 F.3d 862 (6th Cir. 2001) ............................................................... 18

Davis v. Monroe County Bd. of Educ.,

526 U.S. 629 (1999) ................................................................. 13, 17, 24

DeNoma v. Hamilton Cnty. Court of Common Pleas,

626 F. App’x 101 (6th Cir. 2015)......................................................... 12

Doe v. Miami Univ.,

882 F.3d 579 (6th Cir. 2018) ............................................................... 21

Dolan v. Penn Millers Ins. Co.,

No. CIV.A. 3:09-2041, 2014 WL 2047897 (M.D. Pa. May 19,
2014) .................................................................................................... 15

Feminist Majority Found. v. Hurley,

911 F.3d 674 (4th Cir. 2018) .......................................................... 21-22
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Files v. DeKalb Cnty. Sch. Dist., No. 1:11-CV-1798-JEC, 2012 WL

716055 (N.D. Ga. Mar. 5, 2012) .......................................................... 15

Freeman v. Dayton Scale Co.,

19 S.W.2d 255 (Tenn. 1929) ................................................................ 27

Gebser v. Lago Vista Independent School District,

524 U.S. 274 (1998) .................................................................... passim

Grubb v. W.A. Foote Mem’l Hosp., Inc.,

741 F.2d 1486 (6th Cir. 1984) ............................................................. 30

Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc.,

527 U.S. 308 (1999) ............................................................................. 26

Harris v. Nashville Tr. Co.,

162 S.W. 584 (Tenn. 1914) .................................................................. 28

Hartman v. Keri,
883 N.E.2d 774 (Ind. 2008) ............................................................ 29-30

Hawkins v. Anheuser-Busch, Inc.,

517 F.3d 321 (6th Cir. 2008) ................................................................. 7

Howard v. Knox Cnty., Tennessee,

695 F. App’x 107 (6th Cir. 2017).................................................... 24-25

Jackson v. City of Centreville,

899 F. Supp. 2d 1209 (N.D. Ala. 2012) ............................................... 15

Jones v. State,
426 S.W.3d 50 (Tenn. 2013) .................................................................. 2

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

851 F.3d 810 (8th Cir. 2017) ............................................................... 14

Mansourian v. Regents of Univ. of Cal.,

602 F.3d 957 (9th Cir. 2010) ............................................................... 22

Manuele v. City of Jennings,

No. 4:10CV1655 JAR, 2012 WL 113538 (E.D. Mo. Jan. 13, 2012) .... 16

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Marshall v. The Rawlings Co. LLC,

854 F.3d 368 (6th Cir. 2017) ............................................................... 23

Martin v. Dean,
No. 1:06-CV-0497-MHS, 2008 WL 11324082 (N.D. Ga. Oct. 21,
2008) .................................................................................................... 16

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

709 F. App’x 775 (6th Cir. 2017)......................................................... 15

Moresi v. Potter,
No. 07-2758-JPM, 2012 WL 868938 (W.D. Tenn. Mar. 9, 2012) ....... 19

Myers v. Pickering Firm, Inc.,

959 S.W.2d 152 (Tenn. Ct. App. 1997) ............................................... 27

Papelino v. Albany Coll. of Pharmacy of Union Univ.,

633 F.3d 81 (2d Cir. 2011) ............................................................. 12-14

Perzynski v. Cerro Gordo Cnty.,

953 F. Supp. 2d 916 (N.D. Iowa 2013)................................................ 15

Plummer v. Univ. of Houston,

860 F.3d 767 (5th Cir. 2017) ............................................................... 22

Rooney v. Rock-Tenn Converting Co.,

878 F.3d 1111 (8th Cir. 2018) ............................................................. 14

Scottsdale Ins. Co. v. Flowers,

513 F.3d 546 (6th Cir. 2008) ............................................................... 26

Shager v. Upjohn Co.,

913 F.2d 398 (7th Cir. 1990) ............................................................... 18

Staub v. Proctor Hospital,

562 U.S. 411 (2011) ....................................................................... 16, 18

United States v. Abdi,

463 F.3d 547 (6th Cir. 2006) ............................................................... 26

United States v. Romitti,

363 F.2d 662 (9th Cir. 1966) ............................................................... 15
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Vance v. Spencer Cnty. Pub. Sch. Dist.,

231 F.3d 253 (6th Cir. 2000) ............................................................... 24

Voltz v. Erie Cnty.,

617 F. App’x 417 (6th Cir. 2015).................................................... 14-15

Yong Li v. Reade,
746 F. Supp. 2d 245 (D. Mass. 2010) .................................................. 15

Z.J. v. Vanderbilt Univ.,

___ F. Supp. 3d ___, 2018 WL 6694866 (M.D. Tenn. Dec. 19,
2018) .................................................................................................... 28

STATUTES

9 U.S.C. § 10 ............................................................................................ 31

OTHER AUTHORITIES

50 Am. Jur. 2d Libel and Slander § 244 ............................................ 28-29

Restatement (Second) of Torts § 576 (1977) ........................................... 29

Restatement (Third) of Agency (2006) .................................................... 12

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INTRODUCTION

Appellee Rhodes College’s Title IX argument assumes its own

mistaken conclusion: that the theory of cat’s-paw causation is nothing

more than a form of respondeat superior liability. This false premise lacks

any foundation in law or precedent. It conflicts with this Court’s—and

other courts’—application of the cat’s-paw doctrine outside the

respondeat superior context. It lacks any support in traditional agency

principles. And it contravenes both logic and the purpose animating Title

IX. Cat’s paw is a theory of causation, not agency.

Rhodes asks the Court to lay down a categorical rule: declaring that

the cat’s-paw doctrine cannot establish causation under Title IX. But

Rhodes has not demonstrated that cat’s paw is incompatible with Title

IX or the holding of Gebser v. Lago Vista Independent School District, 524

U.S. 274 (1998). On the contrary, the cat’s-paw theory, designed to

prevent willful blindness to discrimination, comfortably aligns with

Gebser’s holding that schools should face liability for their “own official

decision[s].” Id. at 290-91. Allowing a cat’s-paw theory of causation under

Title IX does not prevent courts from inquiring separately into

institutional fault. But Rhodes’ proposed rule categorically forbidding

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cat’s-paw causation under Title IX would snub the purpose of Title IX

and allow schools to knowingly discriminate on the basis of sex.

Appellee Roberto de la Salud Bea’s arguments supporting the

dismissal of Bose’s defamation claim fare no better. Bea has not

demonstrated that Tennessee courts would dramatically extend the

quasi-judicial privilege to an entirely new sphere of private disciplinary

hearings. Federal courts must exercise caution before expanding state

common-law rights, and the district court failed to do so here. An

examination of the Tennessee precedent defining and delimiting the

privilege shows that extending the privilege to the private sphere would

not serve the goals of the privilege: “to aid in the effective functioning of

government,” Jones v. State, 426 S.W.3d 50, 54 (Tenn. 2013), and to

permit free and “robust discussion relative to public issues,” Boody v.

Garrison, 636 S.W.2d 715, 717 (Tenn. Ct. App. 1981).

Bea also seeks to raise a new argument for the first time on appeal.

He now claims that Bose has not established the “publication” element of

her defamation claim because Bea’s statements were intra-corporate

communications. This argument was not raised before the district court

and is therefore waived here. Regardless, the argument, if considered,

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would fail on the merits. Bea communicated his defamatory statements

to several third parties, satisfying the publication requirement.

The district court’s judgment should be reversed and the case

remanded for trial.

ARGUMENT

I. APPELLEES MISCHARACTERIZE THE RECORD

EVIDENCE.

Although Bose agrees that this appeal primarily raises questions of

law, this Court must set forth the relevant facts accurately, and a few

factual matters require further clarification.

A. Bose Made Her Retaliation Claim During the Honor

Council Hearing and in Her Internal Appeal and Title
IX Complaint.

First, Rhodes portrays Bose’s retaliation claim, including the

central allegation that Bea created a fake answer key after-the-fact to

match her quiz answers, as a theory that Bose failed to raise prior to this

litigation. Appellees’ Br. 12-14, 17. That is incorrect. As soon as she

became aware of Bea’s retaliatory intent at the Honor Council hearing,

Bose forcefully asserted her retaliation claim at every step.

At the Honor Council hearing, for example, Bose testified that she

had independently arrived at her answers on Quiz 5, without cheating.

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Preliminary Injunction (“PI”) Ex. 4, App.73. She then stated, “[t]herefore,

I think this question is more the chicken or the egg, whether Dr. Bea’s

fake answer key matches my answers.” Id. Bea himself testified he

understood Bose was raising the issue of retaliation at the hearing.

Plaintiff’s SJ Exhibits, R.120-1, PageID.1404-05.

Bose again raised her retaliation claim in her statement to the

Faculty Appeals Committee. She explained that, “fearing a sexual

harassment claim against him, Bea proceeded to do anything in his

power to fabricate a claim that Ms. Bose had been cheating.” SJ Exhibit

B, R.116-3, PageID.1183. She challenged the authenticity of the fake

answer key, explaining that “[t]he Council had no means of assessing

when Bea made the answer key or of assessing its validity other than

Bea’s own self-serving assertions.” Id., PageID.1197. The concerns raised

in her statement to the Faculty Appeals Committee were then forwarded

on to the Title IX coordinator. PI Transcript, R.44, PageID.425. Despite

its awareness of the retaliation claim, the Faculty Appeals Committee

upheld Bose’s expulsion without waiting for the Title IX investigation.

See id.

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Bose raised her retaliation claim a third time in connection with

her Title IX complaint. Bose explained that Bea had framed her for

cheating. PI Exhibit 13, App.112-18. However, the Title IX investigator

believed these facts were outside the purview of her investigation.

Complaint, R.1, Page ID.7; Answer, R.53, PageID.638-39.

B. Rhodes Had Actual Notice of Bea’s Retaliatory Motive.

Second, there is no dispute that Rhodes and its decisionmakers

were fully aware of Bea’s sex-based, retaliatory motive. As explained

above, Bose raised Bea’s retaliatory animus during the Honor Council

proceedings and again after the hearing. SJ Exhibit A, 116-2,

PageID.1082; SJ Exhibit B, R.116-3, PageID.1178. She raised it again in

her statement to the Faculty Appeals Committee. SJ Exhibit B, R.116-3,

PageID.1183; PI Transcript, R.44, PageID.425. She raised it once again

in the context of her internal Title IX complaint. PI Exhibit 13,

App.112-18. Indeed, in its reply brief at summary judgment, Rhodes

admitted it had actual notice of Bea’s retaliation, stating, “Both the

Honor Council and the Faculty Appeals Committee . . . were acutely

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aware that Plaintiff believed Dr. Bea had a retaliatory motive to accuse

her of cheating.” Defendants’ SJ Reply Memo, R.123, PageID.1557.1

C. Rhodes Never Investigated Whether Bea’s Cheating

Allegations Were Retaliatory.

Third, there is no real dispute that Rhodes never investigated

whether Bea’s cheating allegations were retaliatory. The Associate Dean

of Students who oversees the Honor Council appeals process at Rhodes

believed it was not the Faculty Appeals Committee’s responsibility to

investigate the issue. PI Transcript, R.44, PageID.427, 439. The Title IX

investigator, in turn, stated that the cheating allegations were outside

the scope of her investigation. Complaint, R.1, Page ID.7; Answer, R.53,

PageID.638-39. As a result, Rhodes conducted no investigation into

whether the cheating allegations and Honor Council proceedings served

as the means of Bea’s retaliation.

1 The district court’s order inexplicably stated that the “record does not
reflect that Rhodes retained actual knowledge of Bea’s alleged retaliatory
animus.” SJ Order, R.149, PageID.1788. That statement, as noted above,
is contrary to Rhodes’ own admission and the evidence.
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D. The Record Evidence Overwhelmingly Supports the

Conclusion that Bea Framed Bose for Cheating.

Fourth, Rhodes is mistaken in asserting that Bose “has no basis in

this appeal to treat her accusation that Dr. Bea created the fake answer

key after Quiz 5 as an established fact.” Appellees’ Br. 18 n.4. To the

contrary, the basis for treating Bea’s retaliatory conduct as an

established fact is the undisputed evidence and this Court’s standard of

review, which requires the Court to view all facts in the light most

favorable to Bose. See Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321,

339 (6th Cir. 2008). As explained in Bose’s principal brief, forensic

evidence shows that Bea altered his answer key after Bose took Quiz 5.

Plaintiff’s SJ Exhibits, R.120-1, PageID.1414, 1425, 1430, 1435-36. And

Bea also never shared the answer key with anyone before Bose took the

quiz. Id., PageID.1402-03. The undisputed evidence also demonstrates

Bea’s strong motivation to retaliate to protect his chance at tenure and

highlights his misleading and inconsistent testimony before the Honor

Council. Appellant’s Br. 16, 20-23, 50-51. A factfinder could more than

reasonably conclude that Bea altered the fake answer key to reflect

Bose’s actual answers, framing Bose for cheating.

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E. Bea’s Testimony and Fabricated Evidence Formed the

Entire Basis for Bose’s Expulsion.

Fifth, Rhodes misrepresents the testimony of Bose’s experts at the

Honor Council hearing and the extent to which the nature of Bose’s quiz

answers themselves bore the indicia of cheating.

It is true that none of Bose’s expert witnesses at the Honor Council

hearing were aware that there was a fake answer key until they were

questioned about it by Bea at the hearing. Appellees’ Br. 12. But that is

so because Bose called these witnesses for a separate purpose: to

demonstrate that a college chemistry student could independently reach

the answers that she did. Id. These expert witnesses obviously had no

firsthand knowledge of the mechanics of Bea’s retaliation itself. On cross

examination, Bea asked these witnesses to assume the answers matched

a fake answer key he created in advance—in other words, to assume the

factual conclusion he sought to prove. PI Exhibit 4, App.44-45, 51-53.

Until Bea asked them to make that false assumption, these same

witnesses testified that Bose’s quiz answers were credible answers an

undergraduate student could arrive at independently. Id., App.42-44,

47-49. Thus, when the Honor Council president stated in her letter to the

Faculty Appeals Committee that Bose’s experts had “testif[ied] to the

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near impossible odds of her answers,” she was referring to the experts’

and Bea’s opinion that it would be unlikely for her answers to

coincidentally match a fake answer key created in advance. This evidence

does not support the conclusion that Bose cheated; it assumes that

conclusion.

Thus, Bose’s actual quiz answers were deemed suspicious only

because they matched Bea’s fake answer key. The answers were not, as

Rhodes tries to suggest in its brief, independently suspicious. For

example, Bose’s quiz mentioned the “intramolecular synthesis of

Gabriel.” SJ Exhibit A, R.116-2, PageID1038. Bea repeatedly asserted

this answer demonstrated Bose was cheating. PI Exhibit 4, App.20, 45,

65. But it is not remarkable that an undergraduate student would

mistakenly refer to the “intramolecular synthesis of Gabriel” instead of

the correct term, “the synthesis of Gabriel.” Id., App.20 (Bea testimony

stating, “It exists, the synthesis of Gabriel, but it’s not intermolecular

[sic],” and noting that the Gabriel synthesis was talked about in class),

43 (Bose’s expert explaining that the rationale behind Bose’s incorrect

Gabriel-synthesis answer was logical). In other words, Bose’s incorrect

quiz answers, viewed independently of the fake answer key, bore every

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hallmark of an honest and independent attempt to answer the questions.

Plaintiff’s SJ Exhibits, R.120-1, PageID.1412 (Bea testifying that Bose’s

quiz answers “make[] complete sense” and “could be a potential answer

even though they are incorrect”).

Stripping away Bea’s fake answer key and false testimony, there

was no other basis for the Honor Council’s finding of cheating.

F. Bea Allowed All His Students to Take Tests Early in His

Office.

Last, Rhodes states that Bose “arranged with Dr. Bea to take

numerous quizzes and tests in his office” earlier than the rest of the class.

Appellees’ Br. 5. To clarify, there was nothing unusual or suspicious

about Bose’s request to take exams early. Bea—not Bose—chose his office

as the testing location and allowed all his students to take exams early

as a matter of class policy. SJ Exhibit A, R.116-2, PageID.1049; Plaintiff’s

SJ Exhibits, R.120-1, PageID.1374-75.

II. CAT’S-PAW THEORY IS AVAILABLE TO BOSE AND

ESTABLISHES A CAUSAL CONNECTION BETWEEN HER
EXPULSION AND HER SEX.

Rhodes’ entire argument depends on two erroneous propositions: (1)

that cat’s-paw theory equates to respondeat superior, and (2) that Bose

has waived any argument about Rhodes’ deliberate indifference or

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institutional fault. Both propositions are fundamentally flawed. Cat’s

paw is a theory of causation—not agency—and does not rely on principles

of respondeat superior. Cat’s paw as a theory of causation can peacefully

coexist with Gebser. And, contrary to Rhodes’ assertion, Bose did not

abandon any aspect of her retaliation claim, including any deliberate-

indifference-based argument. Nonetheless, Bose need not establish

deliberate indifference here. Even assuming she needed to do so,

however, the evidence demonstrates that Rhodes was deliberately

indifferent to her claims of retaliation.

A. Cat’s-Paw Theory Is Not a Doctrine of Respondeat

Superior.

Rhodes’ cat’s-paw argument depends on the premise that cat’s-paw

causation is a subset of respondeat superior liability. It is not, and as a

result, the entire foundation of Rhodes’ argument—and the district

court’s opinion—crumbles.

Rhodes at no point explains why cat’s paw categorically equates to

vicarious liability. Instead, Rhodes repeatedly asserts, as ipse dixit, that

cat’s paw equals respondeat superior and that this is “well-settled.”

Appellees’ Br. 23, 25, 28-37. Rhodes glosses over the numerous Court of

Appeals cases that apply cat’s-paw analyses outside of the realm of

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respondeat superior and attempts to elevate a few, wrongly decided

district court decisions to the level of “well-settled law.” Id. at 29.

Courts have routinely applied cat’s-paw theory to claims outside the

respondeat superior context, including to Title IX and § 1983 claims. See,

e.g., DeNoma v. Hamilton Cnty. Court of Common Pleas, 626 F. App’x

101, 105-08 (6th Cir. 2015) (§ 1983 claim); Papelino v. Albany Coll. of

Pharmacy of Union Univ., 633 F.3d 81, 91-93 (2d Cir. 2011) (Title IX

claim); Campion, Barrow & Assocs., Inc. v. City of Springfield, 559 F.3d

765, 771 (7th Cir. 2009) (§ 1983 claim); Arendale v. City of Memphis, 519

F.3d 587, 604 n. 13 (6th Cir. 2008) (§ 1983 claim); Caldwell v. Bartlett

City Sch., No. 2:16-CV-2608-JPM-TMP, 2017 WL 8819282, *6-7, 9 (W.D.

Tenn. Oct. 17, 2017) (§ 1983 claim). If it were so well-settled that cat’s

paw equates to respondeat superior, one would expect these cases to reach

the opposite conclusions that they did. They did not, because Rhodes’

argument is not well-settled. One would also expect the cat’s-paw

doctrine to appear somewhere in the Restatement of the Law of Agency.

It does not. See generally Restatement (Third) of Agency (2006). These

authorities confirm that the cat’s-paw theory of causation is not a

principle of respondeat superior.

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Rhodes mischaracterizes the Second Circuit’s opinion in Papelino—

by far the most analogous case to this one—declaring that it “bas[ed] its

analysis exclusively on Title VII principles of respondeat superior without

consideration of Gebser.” Appellee’s Br. 37. Papelino did not do what

Rhodes claims. The Second Circuit’s opinion does not mention or rely on

respondeat superior principles. Papelino does, however, contain a

detailed recitation and application of the Gebser standard:

For an educational facility to be liable, however, the plaintiff

must establish that a school official with “authority to
address the alleged discrimination and to institute corrective
measures” had “actual knowledge” of the discrimination and
failed to adequately respond. Gebser, 524 U.S. at 290. A
school fails to adequately respond if it provides no response
or if it provides a response that “amount[s] to deliberate
indifference to discrimination.” Id. The school’s response to
sex discrimination must be “clearly unreasonable” in light of
known circumstances. Davis v. Monroe County Bd. of
Educ., 526 U.S. 629, 648 (1999).

In other respects, a Title IX sex discrimination claim requires

the same kind of proof required in a Title VII sex
discrimination claim.

633 F.3d at 89. Thus, the Second Circuit in Papelino fully understood

that respondeat superior had no place under Gebser. It was not, as Rhodes

suggests, blindly following “Title VII principles of respondeat superior.”

Appellee’s Br. 37. The Second Circuit nevertheless applied a detailed

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cat’s-paw analysis to facts materially identical to this case, where the

honor council was “acting on [the professor’s] explicit encouragement.”

Id. at 92-93. This Court should do the same.

In contrast to Papelino, the paltry collection of cases upon which

Rhodes relies falls under two umbrellas: inapposite, and unpersuasive.

The appellate cases cited do not actually address whether the cat’s-paw

theory of causation equates to respondeat superior liability. See Rooney

v. Rock-Tenn Converting Co., 878 F.3d 1111, 1118 (8th Cir. 2018) (stating,

without analysis, that “an employer may be vicariously liable for an

adverse employment action if one of its agents . . . is motivated by

retaliatory animus and intentionally and proximately causes the action”);

Liles v. C.S. McCrossan, Inc., 851 F.3d 810, 820 (8th Cir. 2017) (same, in

a parenthetical); Voltz v. Erie Cnty., 617 F. App’x 417, 424 (6th Cir. 2015)

(stating that cat’s paw can “impute liability to an employer,” but then

elaborating that cat’s paw imputes the “animus”). These cases do not

state that cat’s paw necessarily imposes vicarious liability. And, the cited

Sixth Circuit case undercuts Rhodes’ position. In Voltz, the Sixth Circuit

applied the cat’s-paw theory to a § 1983 claim against a county

government—a claim under which respondeat superior was

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unavailable—and noted that “it was error for the district court to

conclude that cat’s paw was inapplicable.” 617 F. App’x at 423-24. The

remaining appellate cases Rhodes cites do not even address cat’s paw.

See M.D. ex rel. Deweese v. Bowling Green Indep. Sch. Dist., 709 F. App’x

775, 779 (6th Cir. 2017); United States v. Romitti, 363 F.2d 662, 666 (9th

Cir. 1966).

The rest of the cases upon which Rhodes relies are all district court

cases that are neither persuasive nor binding on this court. The majority

do not involve Title IX and mention cat’s paw and respondeat superior

without any meaningful explanation of the connection. See Dolan v. Penn

Millers Ins. Co., No. CIV.A. 3:09-2041, 2014 WL 2047897, at *11 (M.D.

Pa. May 19, 2014); Perzynski v. Cerro Gordo Cnty., 953 F. Supp. 2d 916,

930 (N.D. Iowa 2013); Jackson v. City of Centreville, 899 F. Supp. 2d 1209,

1222 (N.D. Ala. 2012); Files v. DeKalb Cnty. Sch. Dist., No. 1:11-CV-1798-

JEC, 2012 WL 716055, at *4 (N.D. Ga. Mar. 5, 2012); Yong Li v. Reade,

746 F. Supp. 2d 245, 251 (D. Mass. 2010).

The remaining cases also do not involve Title IX and contain faulty

and stunted analyses: for example, misinterpreting Staub’s endorsement

of cat’s paw as reliant on agency principles. See Chew v. City & Cnty. of

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San Francisco, No. 13-CV-05286-MEJ, 2016 WL 631924, at *15 (N.D.

Cal. Feb. 17, 2016); Manuele v. City of Jennings, No. 4:10CV1655 JAR,

2012 WL 113538, at *10 (E.D. Mo. Jan. 13, 2012). These decisions

misread Staub, which relied on traditional tort-law theories of proximate

cause and found agency principles ultimately unhelpful. Staub v. Proctor

Hospital, 562 U.S. 411, 418-21 (2011). Importantly, the Supreme Court

in Staub found cat’s paw compatible with agency principles. Rhodes

draws an inference that cat’s-paw liability must therefore be

incompatible with other frameworks for institutional liability. Appellees’

Br. 33, 34 n.7. This fallacy of the inverse misreads Staub as well. As

explained in Bose’s principal brief, Staub reveals that cat’s paw, as a

theory of causation, does not depend on vicarious liability. See

Appellant’s Br. 39-40. Indeed, Rhodes largely ignores the Supreme

Court’s leading case on cat’s paw—relegating its analysis of Staub to a

footnote. Appellees’ Br. 34.

Another of Rhodes’ cited decisions wrongly presumes that, because

cat’s paw can render employers liable for their employees’ actions, it must

equate to respondeat superior. See Martin v. Dean, No. 1:06-CV-0497-

MHS, 2008 WL 11324082, at *7 (N.D. Ga. Oct. 21, 2008). But this

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presumption also rests on faulty logic. Respondeat superior is not the only

theory of institutional liability that holds an employer accountable for an

employee’s conduct. For a prime example, this Court need look no further

than Gebser’s framework for Title IX sexual harassment claims. Under

Gebser, educational institutions are liable for an employee’s harassment

if they have notice of the harassment and fail to adequately address it.

524 U.S. at 290. School officials might have no discriminatory intent;

perhaps they simply do not care. If the institution fails to respond to the

harassment, that is actionable discrimination “on the basis of sex.” Id.

Nothing about that standard conflicts with cat’s paw.

Rhodes has not and cannot establish that cat’s paw as a theory of

causation is a subset of respondeat superior principles.

B. Cat’s Paw Theory Aligns with Gebser.

Rhodes mischaracterizes Bose’s argument as an attempt to

“overrule Gebser.” Appellees’ Br. 29. Bose is not asking this Court to do

that. Bose agrees that Rhodes “may be liable in damages under Title IX

only for its own misconduct.” Davis, 526 U.S. at 640. Bose agrees that,

for purposes of this appeal, under Gebser, the doctrine of respondeat

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superior does not apply to Title IX claims for monetary damages.2 That

does not mean, however, that Bea’s motive is irrelevant to the question

of causation.

Gebser’s standard for institutional liability under Title IX lives

apart from the causation inquiry, and Rhodes’ argument that cat’s paw

is inappropriate because it “impute[s] liability to Rhodes” falls flat.

Appellees’ Br. 38. As explained in Bose’s principal brief, cat’s paw does

not impute liability. Appellant’s Br. 45. Cat’s paw simply recognizes that,

when a sexual harasser uses school procedures to carry out his

retaliation, the retaliation is still “on the basis of sex.” Id.; see also Staub,

562 U.S. at 419-20. That is why this Court has described cat’s paw as a

“conduit” theory. Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 878

(6th Cir. 2001) (quoting Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir.

1990)), opinion supplemented on denial of reh’g, 266 F.3d 407 (6th Cir.

2 Bose brought claims for equitable relief as well, most prominently,

seeking to have her expulsion nullified. Complaint, R.1, PageID.14-15,
19. Gebser’s holding was limited to claims for monetary damages. 524
U.S. at 287, 292-93. Rhodes does not explain why Gebser should limit the
availability of cat’s-paw theory for Bose’s equitable claims, nor does
Rhodes address the fact that its proposed rule would bifurcate courts’
causation analyses in Title IX claims, allowing cat’s-paw theory to
establish a causal connection for purposes of equitable relief but not
damages.
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2001); see also Moresi v. Potter, No. 07-2758-JPM, 2012 WL 868938, at

*15 (W.D. Tenn. Mar. 9, 2012) (citations omitted).

C. Bose Did Not Abandon Any Elements of Her

Retaliation Claim.

Rhodes asserts that Bose has waived any argument based on the

legal or factual concept of deliberate indifference. Bose has done nothing

of the sort. Rhodes’ argument proceeds as follows: (1) During the

summary judgment proceedings, Bose chose to abandon her Title IX

sexual harassment claim; (2) Title IX sexual harassment claims are

sometimes labeled “deliberate indifference” claims; therefore (3) Bose has

waived the right to invoke the concept of deliberate indifference when

discussing her retaliation claim. Appellees’ Br. 38-39 (“A[] consequence

of Ms. Bose’s decision to expressly abandon any deliberate-indifference

claim at the summary judgment stage is that Ms. Bose cannot properly

raise any deliberate indifference-based arguments on appeal”). The first

two points are true, but the third point does not remotely follow from

them.

As a starting point, Bose’s complaint made clear that Rhodes acted

with deliberate indifference with respect to both her sexual harassment

and retaliation claims. Complaint, R.1, PageID.7-8. And Bose did nothing
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during the summary judgment proceedings to disavow any argument

with respect to Rhodes’ deliberate indifference to Bea’s retaliation

against Bose.

On the contrary, Rhodes never argued below that the evidence was

insufficient to show that its decisionmakers acted with deliberate

indifference to Bea’s retaliatory conduct (assuming such a standard

applies). In its motion for summary judgment, Rhodes made only one

argument attacking Bose’s retaliation claim: it claimed that Bose “cannot

establish the requisite causal connection” between her protected conduct

and her expulsion because the cat’s-paw theory of liability is a “principle[]

of vicarious liability” which “do[es] not apply in the Title IX context.” See

Defendants’ SJ Memo, R.116, PageID.979-80. Rhodes never argued below

that the record contained insufficient evidence for a reasonable factfinder

to determine that Rhodes was deliberately indifferent to Bose’s

retaliation (again, assuming such a standard applies). Id. Rhodes did

argue, by contrast, that no reasonable juror could find that Rhodes was

deliberately indifferent to Bose’s sexual harassment. Id., PageID.977-78.

Thus, the question of whether the evidence was sufficient for a

reasonable factfinder to find that Rhodes was deliberately indifferent to

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Bose’s retaliation was not before the district court and is therefore not

properly before this Court either. The deliberate-indifference standard

generally, however, is relevant to addressing the question that is before

this Court. Rhodes argues that the cat’s-paw theory is incompatible with

Title IX because Gebser adopted a deliberate-indifference standard

rather than adopting respondeat superior principles. Bose has

accordingly met this argument, citing Title IX deliberate-indifference

cases to show that the cat’s-paw theory of causation is not, in fact, in

conflict with Gebser.

D. Bose Is Not Required to Establish Deliberate

Indifference.

Rhodes’ waiver argument also springs from a flawed premise: that

Title IX plaintiffs raising retaliation claims, or any claims, must prove

deliberate indifference on the part of the institution in order to proceed.

Appellees’ Br. 39-40. This Court has stated, albeit in dicta, the opposite:

that the deliberate-indifference theory applies only to cases of sexual

harassment. Doe v. Miami Univ., 882 F.3d 579, 591 (6th Cir. 2018).3

3 Other circuits have analyzed claims other than sexual harassment

using the deliberate-indifference standard. See, e.g., Feminist Majority
Found. v. Hurley, 911 F.3d 674, 696 (4th Cir. 2018) (“[I]f an educational
institution can be liable for student-on-student sexual harassment, it can
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Assuming, as Rhodes does, that deliberate indifference is a viable

theory for a retaliation claim, it is not the only viable theory, and Bose

need not resort to deliberate indifference to attribute her expulsion to

Rhodes. Deliberate indifference is only required in cases “that do not

involve official policy of the recipient entity.” Gebser, 524 U.S. at 290.

Gebser’s standard simply does not apply to “affirmative institutional

decision[s].” Mansourian v. Regents of Univ. of Cal., 602 F.3d 957, 967-68

(9th Cir. 2010). This case involves such an institutional decision. When a

school formally expels a student despite being on notice that its decision

is premised entirely on the allegations of a biased actor, the claimant

need not resort to principles of deliberate indifference to hold the school

accountable. In such a case, the school is held liable for “its own official

decision,” not “for its employees’ independent actions.” Gebser, 542 U.S.

at 290-91. That remains true where, as here, a plaintiff uses the cat’s-

paw theory to prove causation. Importantly, in a cat’s-paw scenario, the

also be liable for student-on-student retaliatory harassment. And that

principle applies even though the institution’s administrators did not
personally participate in the harassment.” (internal citations omitted));
Plummer v. Univ. of Houston, 860 F.3d 767, 778 (5th Cir. 2017) (holding
that the complained-of misconduct need not be sexual harassment, but
could be constitutional deficiencies in the disciplinary process).

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formal decisionmaker—here, Rhodes itself, via the Honor Council and

Faculty Appeals Committee—takes the adverse action. Marshall v. The

Rawlings Co. LLC, 854 F.3d 368, 377 (6th Cir. 2017). Cat’s-paw causation

“forecloses a strategic option for [decisionmakers] who might seek to

evade liability . . . through willful blindness as to the source of reports

and recommendations.” Id. at 378 (citations omitted). In such a

circumstance, the school itself effectively retaliates though “its own

official decision.” Gebser, 524 U.S. at 291. Asking whether a willfully

blind decisionmaker, who itself took the discriminatory adverse action,

was also deliberately indifferent would be an exercise in superfluous

analysis.

E. Although Not Required, Bose Has Established that

Rhodes Was Deliberately Indifferent.

Even assuming, however, that Bose would be legally required to

demonstrate proof of deliberate indifference, the evidence amply

supports a finding in Bose’s favor.

Upon receiving notice of the retaliatory nature of Bea’s false

cheating allegations, Rhodes did nothing to investigate the retaliation.

The Faculty Appeals Committee, by its own admission, made no attempt

to determine whether Bea’s cheating allegations were retaliatory. SJ

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Exhibit A, R.116-2, PageID.1019; Transcript, R.40, PageID.394. The Title

IX investigator likewise stated that she would not investigate Bea’s false

cheating allegations or the Honor Council proceedings—the core facts

underlying Bea’s retaliation. Complaint, R.1, Page ID.7; Answer, R.53,

PageID.638-39. Rhodes’ complete inaction in the face of Bose’s repeated

complaints demonstrates deliberate indifference. See Davis, 526 U.S. at

654 (fact that school board “made no effort whatsoever either to

investigate or to put an end” to sexual harassment by a classmate

“suggests that petitioner may be able to show both actual knowledge and

deliberate indifference on the part of the Board”); Vance v. Spencer Cnty.

Pub. Sch. Dist., 231 F.3d 253, 262 (6th Cir. 2000) (holding school district

was deliberately indifferent where sexual harassment victim’s mother

filed a complaint with the district’s Title IX coordinator but “[a]n

investigation, however, never resulted”). Indeed, Rhodes not only failed

to investigate the facts underlying Bose’s retaliation, it proceeded to

affirmatively expel her after she complained of retaliation. PI Transcript,

R.44, PageID.425. This, too, demonstrates Rhodes’ deliberate

indifference, as “a defendant may be more likely to be considered

deliberately indifferent if he took affirmative action that heightened the

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risk of harm to the plaintiff.” Howard v. Knox Cnty., Tennessee, 695 F.

App’x 107, 115 (6th Cir. 2017).

Of course, the question of Rhodes’ deliberate indifference is not

before this Court. Any separate challenge to Rhodes’ institutional

liability as to the retaliation was not raised by Rhodes below and should

be litigated, if at all, on remand. The issue before the Court is whether

the cat’s-paw theory can apply under Title IX or whether—as appellees

argue—this Court should adopt a rule categorically prohibiting cat’s-paw

causation in Title IX claims. It should not, and the district court erred in

concluding otherwise.

III. BOSE STATED A CLAIM FOR DEFAMATION.

The district court also committed reversible error in dismissing

Bose’s defamation claim, notwithstanding Bea’s attempts to support the

district court’s opinion. Bea’s argument that his false statements were

not “publications” is waived because it was never raised below. The

argument also fails on the merits. Bose has alleged, and now proven, that

Bea’s statements were published to third parties. This Court should also

reject Bea’s request to extend Tennessee’s quasi-judicial privilege outside

of the sphere of public, governmental proceedings. Bea has not pointed to

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a single case where a Tennessee court has done so, and none of his

arguments justify a federal court taking such an extraordinary step.

A. Bea’s Publication Argument Is Waived and Unavailing.

Bea argues, for the first time on appeal, that Bose failed to state a

claim for defamation because intra-corporate communications are not

“publications” under Tennessee law. This argument is both waived and

unpersuasive.

“It is fundamental, and firmly established by Supreme Court

precedent, that appellate courts generally are not to consider an issue

brought for the first time on appeal.” United States v. Abdi, 463 F.3d 547,

563 (6th Cir. 2006) (citing Grupo Mexicano de Desarrollo S.A. v. Alliance

Bond Fund, Inc., 527 U.S. 308, 319 n. 3 (1999)). Two policies justify this

rule: it “eases appellate review by having the district court first consider

the issue,” and it “ensures fairness to litigants by preventing surprise

issues from appearing on appeal.” Scottsdale Ins. Co. v. Flowers, 513 F.3d

546, 552 (6th Cir. 2008) (citations and quotation marks omitted).

Although the Court can deviate from this rule in “exceptional cases or

particular circumstances,” or to prevent a “miscarriage of justice,” the

Court has “rarely exercised such discretion.” Id.

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The Court should not consider Bea’s publication argument here

because it was not raised below. See Defendants’ Motion to Dismiss

Memo, R.21-1, PageID.133-34 (raising only the privilege issue as to

Bose’s defamation claim). As the moving party, Bea had the obligation to

raise the issue below and failed to do so. Bea has no excuse for failing to

raise it. The intra-corporate communication rule, upon which Bea

evidently relies, has been part of Tennessee’s defamation doctrine since

1929. See Freeman v. Dayton Scale Co., 19 S.W.2d 255, 257 (Tenn. 1929).

And this case is not one of the exceptional situations where this Court

should consider a new issue on appeal. To the contrary, because Bea

never raised the issue below, Bose never had the opportunity to amend

her complaint or otherwise respond to Bea’s publication argument. She

should not be required to litigate the issue for the first time on appeal.

If this Court does choose to consider the issue, however, the

publication element is easily satisfied. “Communicating

a defamatory statement to a third person establishes the element of

publication” for a defamation claim. Myers v. Pickering Firm, Inc., 959

S.W.2d 152, 163 (Tenn. Ct. App. 1997). Bose alleged that Bea

communicated the false and misleading statements to Whitney Harmon,

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an “independent attorney” who was not hired as Rhodes’ employee,

attorney, or advocate. Complaint, R.1, PageID.17; PI Exhibit 4, App.101.

Appellees do not address this allegation. Moreover, none of the members

of the Honor Council were Rhodes employees or agents. Instead, they

were Bose’s classmates and peers. That distinguishes this case from Z.J.

v. Vanderbilt Univ., ___ F. Supp. 3d ___, 2018 WL 6694866, at *24 (M.D.

Tenn. Dec. 19, 2018), in which the only particularized allegation of

publication was a communication to a Vanderbilt employee: the Director

of Student Accountability. Here, by contrast, Bea communicated the false

statements to other students and to Whitney Harmon—all third parties.

Bea’s statements also foreseeably resulted in Rhodes publicizing

the circumstances surrounding Bose’s expulsion to George Washington

School of Medicine. See Complaint, R.1, PageID.15. Rhodes sent an email

to George Washington indicating that Bose had been expelled for

academic dishonesty, PI Transcript, R.44, PageID.444—effectively

republishing Bea’s false and malicious accusations to a third party. This

alone satisfies the requirement that the defamatory statement be made

to a third party. See Harris v. Nashville Tr. Co., 162 S.W. 584, 586 (Tenn.

1914) (“A substantial reiteration of a prior defamatory publication by

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defendant amounts to a republication, for which he will be responsible.”

(citation omitted)); 50 Am. Jur. 2d Libel and Slander § 244 (“Every

repetition of a defamation is a publication in itself.”); Restatement

(Second) of Torts § 576 (1977) (original defamer is liable for repetition of

defamatory statement if “the repetition was reasonably to be expected”

or was “authorized or intended”).

This Court should decline to decide the publication issue, but if it

chooses to do so, Bea’s statements were published to third parties,

including other Rhodes students, Whitney Harmon, and George

Washington School of Medicine. These allegations (now supported with

proof) show that Bea published his defamatory statements to third

parties.

B. Bea Has Not Demonstrated that Tennessee Courts

Would Extend the Quasi-Judicial Privilege to a Whole
New Realm of Private Proceedings.

Bea’s arguments do not demonstrate that a federal court should

take the extraordinary step of extending Tennessee’s judicial-privilege

doctrine to an entirely new realm of private proceedings.

Bea’s reliance on Hartman v. Keri, 883 N.E.2d 774 (Ind. 2008), is

misplaced. Hartman involved Purdue University—a state school. Id. at

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775. It involved students’ sexual harassment complaints against a

professor—not cheating allegations against a student. Id. at 775. In

applying the quasi-judicial privilege to the disciplinary proceedings in

Hartman, the Indiana Supreme Court specifically relied on the fact that

Purdue was a public university whose proceedings were governed by an

Indiana statute that required “appropriate discipline” for those who “file

knowingly false or malicious complaints.” Id. at 778. Hartman is thus

easily distinguishable and has no bearing on the public-private

distinction limiting the scope of the judicial privilege. Hartman was also

a decision of the Indiana Supreme Court. It is one thing for a state court

of last resort to extend its own judicial privilege doctrine to an entirely

new sphere of proceedings; it is quite another for a federal court to take

that leap. See Grubb v. W.A. Foote Mem’l Hosp., Inc., 741 F.2d 1486, 1500

(6th Cir. 1984), vacated on other grounds, 759 F.2d 546 (6th Cir. 1985).

The Court’s “respect for the role of the state courts as the principal

expositors of state law counsels restraint by the federal court in

announcing new state-law principles, or applying such principles to novel

situations.” Id. Hartman gives this Court no license to dramatically

expand Tennessee common law.

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Rhodes also cites Brundage v. Cumberland County, 357 S.W.3d 361

(Tenn. 2011), for the proposition that the Rhodes Honor Council

proceedings are quasi-judicial. Brundage addressed the proper means for

judicial review of the approval of a landfill in a county commission

proceeding. Id. at 363. Brundage has nothing to do with the quasi-judicial

privilege or defamation. Its sole relationship to this case is its use of the

phrase “quasi-judicial.” Id. at 370. And, it merely listed a few traditional

characteristics of quasi-judicial proceedings without creating any sort of

rule. Id. (“The application of pre-defined standards, the requirement of a

hearing, and the requirement of a record are earmarks of quasi-judicial

proceedings.”). Since Brundage involved a public proceeding, it, too, has

no bearing on whether private proceedings are “quasi-judicial” under

Tennessee law.

Finally, Rhodes’ Honor Council proceedings are not, as Bea

contends, “the academic equivalent of private, contractual arbitrations.”

Appellees’ Br. 49-50. Arbitration utilizes a well-trained, neutral third-

party arbitrator to resolve a dispute. By contrast, Rhodes’ Honor Council

proceedings are run by Rhodes students with no legal or judicial training.

Complaint, R.1, PageID.4. Unlike arbitration awards, Honor Council

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decisions are not subject to the judicial review available under the

Federal Arbitration Act. See 9 U.S.C. § 10. Rhodes also has not cited a

case where Tennessee has applied the judicial or quasi-judicial privilege

to private arbitration, which renders any comparison to arbitration

proceedings unpersuasive and irrelevant.

CONCLUSION

The district court’s judgment should be reversed, and the case

remanded for trial on Bose’s Title IX and defamation claims.

Date: February 19, 2019 Respectfully submitted,

s/Adam W. Hansen
Adam W. Hansen
Counsel of Record
Eleanor E. Frisch
APOLLO LAW LLC
3217 Hennepin Avenue South
Suite 7
Minneapolis, MN 55408
(612) 927-2969

Bryce Ashby
DONATI LAW, PLLC
1545 Union Avenue
Memphis, TN 38104

Brice M. Timmons
BLACK MCLAREN JONES
RYLAND & GRIFFEE PC
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530 Oak Court Drive, Suite 360

Memphis, TN 38117

Counsel for Appellant

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CERTIFICATE OF COMPLIANCE
WITH TYPE-VOLUME LIMITATION, TYPEFACE
REQUIREMENTS, AND TYPE STYLE REQUIREMENTS

1. This brief complies with the type-volume limitation of Federal

Rule of Appellate Procedure 32(a)(7)(B)(ii) because the brief contains

6,218 words, as determined by the word-count function of Microsoft Word

2016, excluding the parts of the brief exempted by Federal Rule of

Appellate Procedure 32(f) and this Court’s Rule 32(b)(1).

2. This brief complies with the typeface requirements of Federal

Rule of Appellate Procedure 32(a)(5) and the type style requirements of

Federal Rule of Appellate Procedure 32(a)(6) because it has been

prepared in a proportionally spaced typeface using Microsoft Word 2016

in 14-point Century Schoolbook font.

Date: February 19, 2019 s/Adam W. Hansen

Adam W. Hansen
 Case: 18-5936 Document: 35 Filed: 02/19/2019 Page: 42

CERTIFICATE OF SERVICE

I hereby certify that, on this 19th day of February, 2019, I caused

the foregoing brief to be filed electronically with the Court, where it is

available for viewing and downloading from the Court’s ECF system, and

that such electronic filing automatically generates a Notice of Electronic

Filing constituting service. I certify that all parties required to be served

have been served.

s/Adam W. Hansen
Adam W. Hansen