Sharif v. Dartmouth Medical School

• Court: District Court, D. New Hampshire
• Decided: March 28, 1996
• Docket: CV-93-614-B
• Status: Published

Opinion

Sharif v. Dartmouth Medical School CV-93-614-B 03/28/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Adil M. Y. Sharif

v. Civil No. 93-614-B

Dartmouth Medical School, et al.

MEMORANDUM AND ORDER

Adil Sharif was a second-year student at Dartmouth Medical

School when he was dismissed. Appearing pro se, Sharif brings

suit against Dartmouth, several members of the faculty and

administration, and a fellow student, alleging federal and state

causes of action arising from the circumstances surrounding his

dismissal. Both Sharif and the defendants move for summary

judgment. For the following reasons, I grant summary judgment in

favor of the defendants.

I. FACTUAL BACKGROUND

Sharif began the Dartmouth Medical School four-year program1

1 The Dartmouth program is affiliated with Brown University so that after two years at Dartmouth, the students move to Brown to complete the four-year program. in 1989. By the middle of his first year, Sharif was

experiencing academic problems, having earned low pass grades in

two courses. As a result, the Committee on Student Performance2

("CSP") placed him on "Academic Notice."3 Sharif then failed his

neuroanatomy course. He was allowed to take a reexamination in

neuroanatomy,4 which he passed. He received another low pass

2 The CSP is a standing committee consisting of department chairpersons, program directors, and deans and is chaired by the dean of the medical school. The CSP considers all matters relevant to students' degree reguirements and hears cases involving students' conduct and academic standing. Student Policy Handbook at pp. 15-16.

3 Dartmouth's Student Policy Handbook includes a "Policy on Academic Notice," which provides that a student "whose academic performance is not satisfactory" will be placed on Academic Notice "to inform the student of the faculty's concern fortheir academic progress." Academic Notice is a status prior to consideration for dismissal but is not a necessary prereguisite for dismissal. The following academic deficiencies are grounds for Academic Notice: a course failure, two or more low pass grades or one low pass in a reguired clerkship, and repeating a year in the program. Handbook at page 15.

4 The Handbook provides for reexamination as follows: "A student who fails one course during a single academic year shall ordinarily be permitted a re-examination. Please refer to paragraph #9." Paragraph 4, Academic Regulations, Handbook at 14. Paragraph 9 provides: "Permission for any re-examination must be given by the Office of Academic Affairs, which will determine the date of the re-examination in consultation with the course director. No more than one re-examination per course will be permitted." Academic Regulations, Handbook at 15.

2 grade at the end of the first year, however, and the CSP

continued his Academic Notice status into his second year with an

additional condition that he receive counseling to help him deal

with "interpersonal problems."5 Sharif fared no better during

his second year, earning low passes in three courses by mid-term

and a failure in endocrinology.

A. The CSP Dismissal Decision

The CSP met on February 27, 1991, to review Sharif's

academic performance in response to his failure in endocrinology.

The endocrinology faculty reported that Sharif's performance was

deficient in five areas: (1) poor performance in the final

examination including "a serious inability to discriminate and

organize information and to reason in a problem solving/

5 The CSP explained its concerns in its letter to Sharif as follows:

The committee remains very concerned about your behavior, especially your attempts to manipulate faculty members and your interactions with support staff and other students.

We feel you will be at risk for interpersonal problems when you participate in the patient interactive parts of our curriculum, and the committee reguires that you obtain counseling about this.

3 hypothesis-testing mode"; (2) failure to attend seven of the nine

small group conferences that were course reguirements; (3)

failure to take the guizzes that were provided for self-

examination and small group discussion; (4) failure to explain

his absence or make up the work missed following the vacation

break; (5) failure to change his approach to the course after

counselling with two faculty members and the director of second

year studies. Dr. Arthur Naitove. The faculty concluded that he

lacked a sufficient base of knowledge to pass but also expressed

concern "about his commitment to his education as a physician and

to the responsibilities that go with that commitment." They

confirmed that his performance merited a failing grade and that

re-examination would not make up his deficit.

The meeting minutes also report that the CSP discussed

"concerns about a "personality/judgement disorder." Although Dr.

Naitove expressed concern that Sharif was not being allowed a

reexamination based on the endocrinology faculty's conclusion

that he should not pass the course, the CSP voted to endorse the

decision not to allow reexamination. The CSP also voted to

dismiss Sharif from the school due to his academic deficiencies.

After the meeting. Dr. Naitove informed Sharif of the CSP's

decision to dismiss him, and he was notified officially in a

4 March 5, 1991 letter from Dr. O'Donnell. The March 5 letter

stated that the CSP voted to separate Sharif from Dartmouth

"because of [his] poor academic performance." It summarized his

performance in Year I as low pass grades in gross anatomy,

microscopic anatomy, and physiology, and a failure in

neuroanatomy; and in Year II, low pass grades in hematology,

respiration, and cardiology, and a failure in endocrinology. The

letter also enclosed pages from the Student Policy Handbook

related to the hearing process.

B. The First CSP Appeal Hearing

Pursuant to the procedures described in the Handbook, an

appeal hearing was scheduled on the CSP's February decision for

March 27, 1991. Prior to the hearing. Dr. O'Donnell received

reports of incidents involving Sharif in his psychiatry small

group and physical diagnosis classes. At the hearing, the CSP

considered Sharif's academic record, evidence of the class

incidents, and testimony from Sharif's brother, a friend, and

Sharif. A faculty advisor also accompanied him at the hearing.

A partial transcript from the CSP's discussion following the

March hearing reveals disagreement among the members about the

appropriate procedure to follow. Dr. Naitove stated that he

favored allowing Sharif to repeat his second year because he felt

5 that the CSP had allowed much worse students to stay. Dr.

Naitove also complained that the CSP was treating Sharif

differently because of his behavior pattern. Nevertheless, the

CSP voted to uphold its February decision to separate Sharif for

academic reasons.

C. The Second CSP Appeal Hearing

In an executive session held on April 10, the CSP voted to

uphold its previous decision to separate Sharif because of his

academic record, but also decided to invite Sharif to attend a

second hearing to further address the behavior incidents

considered at the March hearing. Dr. O'Donnell sent Sharif

notice of the CSP's decision on April 11 stating that the

following behavior issues would be addressed at the next hearing

your inappropriate interactions with patients in the psychiatry small group and the pelvic examination in the physical diagnosis course; your interactions with your peers; and your inability to change your behavior in your own educational process, even when told specifically what was expected of you (e.g., in the endocrinology course).

The second hearing was held on May 8. Sharif was

represented by counsel. The CSP again reviewed the evidence of

the cited behavior incidents first raised at the March hearing.

Following the hearing, the CSP again voted in favor of dismissal

On May 9, O'Donnell wrote to the dean at Brown University School of Medicine to inform him that Sharif would not go to Brown that

year due to academic difficulties. O'Donnell notified Sharif of

the CSP's decision by letter dated May 10, stating "[o]ur final

decision was based solely on your academic performance, which has

been identified to you on numerous occasions to be substandard."

Sharif reguested an appeal to the Student Appeals Committee

("SAC").6

D. The SAC Proceedings

The SAC is a "standing committee consisting of three faculty

members appointed by the Dean and not then members of the CSP."

Handbook, Student Appeals Committee, p. 17. A student may

reguest a review of a CSP decision before the SAC. Id.

Following review, the SAC will either sustain the CSP's decision,

or reguest reconsideration whereby the CSP and SAC vote on the

guestion together. Id. In either alternative, the decision is

final. Id.

At its June 5, 1991 meeting, the SAC set June 14 for

Sharif's appeal hearing. Following the hearing, the SAC first

In early April, Sharif also failed gastroenterology. He argues that his failure was due to the time he had to spend on his hearings before the CSP. He also states that the professor. Dr. Naitove, offered to give him an oral make-up examination. Nevertheless, the failure remains on his transcript.

7 decided to affirm the CSP's decision to separate Sharif by a

divided vote, and then, attempting to achieve greater unanimity,

voted to offer him the option to repeat his second year with

certain restrictions. Next, the SAC and the CSP met jointly on

June 26 to reconsider Sharif's case and their respective

decisions. Following discussion, the committees voted together

to sustain the CSP's decision to dismiss Sharif based on his

academic record. Dr. O'Donnell officially informed Sharif of the

decision by a letter dated June 28, and his transcript was

inscribed with the notation, "STUDENT SEPARATED FROM DARTMOUTH

MEDICAL SCHOOL 6/26/91."

Sharif took the National Board of Medical Examiner's

("NBME") Part I examination at Cornell Medical College in New

York City on June 11 and 12. He received a passing score, sent

to him on July 23. Sharif's subseguent efforts at reinstatement

at Dartmouth and to continue with his class at Brown failed. He

applied to many other medical schools but was not accepted.

Sharif filed suit against Dartmouth, members of the CSP and

faculty, and a fellow student, Sarah Henry, in November 1993 and

filed his final amended complaint on August 15, 1995. The

defendants move for summary judgment on all claims, and Sharif

also moves for summary judgment. II. STANDARD OF REVIEW

Summary judgment is appropriate only if the facts taken in

the light most favorable to the nonmoving party show that no

genuine issue of material fact exists and the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);

Guzman-Rivera v. Rivera-Cruz, 29 F.3d 3, 4 (1st Cir. 1994) .

Where the nonmoving party bears the burden of proof, the moving

party initially need allege only the lack of evidence to support

the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S.

317, 325 (1986). The nonmoving party cannot rely on the

pleadings alone to oppose summary judgment, but must come forward

with properly supported facts to demonstrate that "the evidence

is such that a reasonable jury could return a verdict for the

nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986) .

If the moving party will bear the burden of proof on an

issue at trial, the court will grant summary judgment only if:

"(1) the moving party initially produces enough supportive

evidence to entitle the movant to judgment as a matter of law

(i.e., no reasonable jury could find otherwise even when construing the evidence in the light most favorable to the non­

movant) , and (2) the non-movant fails to produce sufficient

responsive evidence to raise a genuine dispute as to any material

fact." Murphy v. Franklin Pierce Law Center, 882 F. Supp. 1176,

1180 (D.N.H. 1994) (citing Fitzpatrick v. Atlanta, 2 F.3d 1112,

1115-17 (11th Cir. 1993)), aff'd, 56 F.3d 59 (1st Cir. 1995)

(table). A "material fact" is one "that might affect the outcome

of the suit under the governing law," and a genuine factual issue

exists if "the evidence is such that a reasonable jury could

return a verdict for the nonmoving party." Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). When the facts are

undisputed, the moving party can prevail only if it is entitled

to judgment as a matter of law on the undisputed material facts.

Desmond v. Varrasso (In re Varrasso), 37 F.3d 760, 764 (1st Cir.

1994). I consider the parties' motions in light of the summary

judgment standard.

III. DISCUSSION

Sharif asserts federal claims against Dartmouth based on 42

U.S.C.A. § 1981; 42 U.S.C.A. § 2000d (Title VI); and the

Fourteenth Amendment alleging discrimination based on his race

10 and ethnicity. He asserts a due process claim as part of his

state law breach of contract claim. Sharif's state law causes of

action against Dartmouth alone are breach of contract, breach of

the duty of good faith and fair dealing, and breach of fiduciary

duty. He alleges defamation claims against Dartmouth and

individual defendants: Associate Dean of Student Affairs and CSP

Chair, Joseph O'Donnell; CSP members Robert Harris, Donald St.

Germain, Martha Regan-Smith, Constance Brinkerhoff, and Michael

Gaylor; classmate Sarah Henry; and Physical Diagnosis instructor

Lin Brown. He brings a negligence claim against Andrew Wallace,

Dean of Dartmouth Medical School. He alleges claims for

intentional and negligent infliction of emotional distress

against Dartmouth, Wallace, O'Donnell, the CSP members.

Endocrinology Instructor Lee Witters, Lin Brown, Professors

William Layton and Michael Sateia, classmate Henry, and

psychiatry small group leader Michaela Crawley. Finally, he

asserts a conspiracy claim against all of the defendants.

I first address Sharif's federal claims beginning with his

constitutional claims. Next, I discuss his state law claims

starting with the contract issues.

11 A. Federal Claims

1. Constitutional Claims

Sharif alleges that Dartmouth's actions violated his

constitutional right to egual protection. He also includes "due

process" in the title of his breach of contract claim although he

does not specify any particular due process violations or

supporting factual allegations. In order to maintain either an

egual protection or a due process claim, Sharif must show that

Dartmouth's allegedly unconstitutional actions were the product

of governmental action. Edmonson v. Leesville Concrete Co., 500

U.S. 614, 619 (1991). Sharif alleges governmental action based

on Dartmouth's receipt of federal funding and association with a

Veterans Administration Hospital.

Dartmouth is a private corporate entity. See Trustees of

Dartmouth College v. Woodward, 17 U.S. 518, 633 (1819); Stone v.

Dartmouth College, 682 F. Supp. 106, 110 (D.N.H. 1988).

"Although the conduct of private parties lies beyond the

Constitution's scope in most instances, governmental authority

may dominate an activity to such an extent that its participants

must be deemed to act with the authority of the government and,

as a result, be subject to constitutional constraints."

12 Edmonson, 50 0 U.S. at 62 0; accord Lebron v. National R.R.

Passenger Corp., 115 S. C t . 961, 964 (1995) ("actions of private

entities can sometimes be regarded as governmental action for

constitutional purposes").

Sharif bears "the burden of showing 'the State is

responsible for the specific conduct of which [he] complains.1"

Johnson v. Pinkerton Academy, 861 F.2d 335, 337 (1st Cir. 1988)

(guoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)). The

Supreme Court has developed certain tests or principles to guide

the highly fact-specific inguiry of determining whether a private

entity may considered a governmental actor. See generally

Rockwell v. Cape Cod Hosp., 26 F.3d 254, 257-60 (1st Cir. 1994);

Gerena v. Puerto Rico Legal Servs., 697 F.2d 447, 449 (1st Cir.

1983). The analysis used in Rendell-Baker v. Kohn, 457 U.S. 830,

840-43 (1982), to decide whether a private school with state

funding was a state actor for purposes of a civil rights claim by

a dismissed teacher is most analogous to this case.

Preliminarily, the receipt of governmental funds does not,

by itself, render a private institution a governmental actor.

Id. at 840-41; Gerena, 697 F.2d at 450. Instead, the relevant

factors to be considered are: (1) the extent to which Dartmouth's

actions leading to Sharif's dismissal were compelled by federal

13 regulation (the state compulsion test); (2) whether Dartmouth's

activities are traditionally reserved for the government (the

public function test); and (3) the extent of Dartmouth's

interaction with the federal government or agency (the

nexus/joint action test) .7 See Rendell-Baker, 457 U.S. at 840-

43; Rockwell, 2 6 F.3d at 258.

Sharif supports his claim by pointing to Dartmouth's federal

funding for student financial aid and the federal loans that he

received, along with the majority of other medical students. He

also cites information provided by Dartmouth that federal funding

supplies up to twenty-two percent of the school's annual budget.

As previously noted, however, federal funding alone does not make

a school's decision to dismiss a student a governmental decision.

Rendell-Baker, 457 U.S. at 840.

7 The Rendell-Baker court also considered and rejected a finding of governmental action based upon the "symbiotic relationship test" articulated in Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961). Rendell-Baker, 457 U.S. at 842. Actions of a private entity are attributable to the federal government under the symbiotic relationship test if the government "has so far insinuated itself into a position of interdependence with [that entity] that it must be recognized as a joint participant in the challenged activity." Burton, 365 U.S. at 725. Sharif has offered no evidence to support a finding of governmental action under the symbiotic relationship test.

14 Dartmouth states by its counsel's affidavit that the campus

is privately owned and that it functions with complete autonomy

from both the state and federal governments as to its academic

standards. The affidavit also states that Dartmouth evaluates

academic performance and degree eligibility based on its own

criteria. Although Dartmouth complies with various state and

federal regulations, Dartmouth's counsel is aware of no federal

regulations governing Dartmouth's evaluation of academic

performance. Further, Dartmouth's medical school function is not

a function traditionally reserved for governmental action. See

Johnson, 861 F.2d at 338 (maintaining educational institutions

not an exclusive public function and private high school not

state actor despite state attendance reguirements); Krohn v.

Harvard Law School, 552 F.2d 21, 24 (1st Cir. 1977) ("the mere

offering of an education, regulated by the State, does not imbue

defendant's activities with sufficient 'public interest' to

render defendant's activities governmental in nature"); c .f .

Krvnickv v. University of Pittsburgh, 742 F.2d 94, 101-03 (3d

Cir. 1984) (statutory link between universities and state so

extensive as to make them instrumentalities of the state), cert.

denied, 471 U.S. 1015 (1985). Accordingly, Sharif's claim fails

the state compulsion and public function tests.

15 Sharif next argues that the relationship between the

Veterans Administration Hospital in White River Junction,

Vermont, and Dartmouth establishes governmental action under the

nexis/joint action test. Although the evidence shows a

cooperative arrangement between Dartmouth and the Hospital,

Sharif has not shown a sufficient connection between the Hospital

and Dartmouth's actions and decisions affecting him to establish

that Dartmouth was a joint actor with the Hospital. Nor has he

shown that the Hospital controlled, affected, or mandated

Dartmouth's academic standards or its decision-making as to the

gualifications of its students. See Rockwell, 26 F.2d at 258

(Medicare funds and regulation insufficient to make a private

hospital a governmental actor); Tynecki v. Tufts Univ. Sch. of

Dental Medicine, 875 F. Supp. 26, 31 (D. Mass. 1994) (private

dental school's decision to expel student not motivated by the

state despite governmental regulation and its participation in

government projects). Thus, Sharif has failed to sustain his

burden of showing that Dartmouth operated as a governmental actor

in making its decision to dismiss him from the program. Absent

governmental action, his constitutional claims must fail.

2. The Section 1981 Claim

Section 1981 provides in pertinent part that "all persons

16 within the jurisdiction of the United States shall have the same

right in every state to make and enforce contracts . . . as is

enjoyed by white citizens . . . 42 U.S.C.A. § 1981(a) (1994).

The Civil Rights Act of 1991 amended § 1981 to specify that "the

term 'make and enforce contracts' includes the making,

performance, modification and termination of contracts and the

enjoyment of all benefits, privileges, terms and conditions of

the contractual relationship." 42 U.S.C.A. § 1981(b) (1994).

Prior to November 21, 1991, when this amendment became effective,

the term "make and enforce contracts" had been interpreted more

narrowly to apply only to "conduct at the initial formation of

the contract and conduct which impairs the right to enforce

contract obligations through the legal process." Patterson v.

McLean Credit Union, 491 U.S. 164, 179-80 (1989).

Sharif's § 1981 claim is governed by the version of the

statute that was in effect prior to the 1991 amendment because

all of the conduct at issue occurred prior to that date. Rivers

v. Roadway Express, Inc., 114 S. C t . 1510-1519-20 (1994) (1991

amendments do not apply to preenactment conduct). Accordingly,

Sharif's claim necessarily fails because it is based on conduct

that occurred after his contract with Dartmouth was formed and

his claim is unrelated to any effort to enforce his contract

17 rights through legal process.

3. The Title VI Claim

a. The legal standard

Sharif alleges that Dartmouth violated Title VI by

discriminating against him in the actions that culminated in his

dismissal. Title VI provides: "No person in the United States

shall, on the ground of race, color, or national origin, be

excluded from participation in, be denied the benefits of, or be

subjected to discrimination under any program or activity

receiving Federal financial assistance."8 42 U.S.C.A. § 2000d

(1994). "Title VI itself directly reache[s] only instances of

intentional discrimination" although "actions having an

unjustifiable disparate impact on minorities [can] be redressed

through agency regulations designed to implement the purposes of

Title VI." Alexander v. Choate, 469 U.S. 287, 293 (1985)

(interpreting the plurality opinion in Guardians Ass'n v. Civil

Serv. Comm'n, 463 U.S. 582 (1983)); see also Latinos Unidos De

Chelsea En Accion (Lucha) v. Secretary of Housing and Urban Dev.,

799 F.2d 774, 783 (1st Cir. 1986). Because Sharif does not base

For purposes of this analysis, I will assume that the Dartmouth Medical School program receives federal financial assistance within the meaning of the statute.

18 his Title VI claim on any of the statute's implementing

regulations, he must show that Dartmouth intentionally

discriminated against him based on his race, color, or national

origin.

The First Circuit has not determined whether it would apply

the familiar burden-shifting standard used in Title VII disparate

treatment cases to similar claims under Title VI. See McDonnell

Douglas Corp. v. Green, 411 U.S. 7 92 (1973); St. Mary's Honor

Ctr. v. Hicks, 113 S. C t . 2742 (1993) . However, other courts

have used the Title VII burden-shifting standard to resolve

disparate treatment claims under Title V I . See, e.g., Enplanar,

Inc. v. Marsh, 11 F.3d 1284, 1294 (5th Cir.) (combined § 1981 and

Title VI case), cert, denied, 115 S.Ct. 312 (1994); Hankins v.

Temple Univ., 829 F.2d 437, 440 (3d Cir. 1987) (combined Title VI

and VII case); New York State Ass'n for Retarded Children v.

Carev, 612 F.2d 644, 649 (2d Cir. 1979) (addressing

Rehabilitation Act and assuming that burden-shifting standard is

"a general principal of discrimination law" applicable in Title

VI cases); Wade v. Mississippi Cooperative Extension Serv., 528

F.2d 508, 516-18 (5th Cir. 1976) (combination of discrimination

claims including Title VI); Love v. Duke Univ., 776 F. Supp.

1070, 1073 (M.D.N.C. 1991) (Title VI), aff'd, 959 F.2d 231

19 (1992); Police Officers for Equal Rights v. City of Columbus, 644

F. Supp. 393, 438 (S.D. Ohio 1985) (Title VI claim). Finding no

contrary authority, I assume that the First Circuit would apply

the Title VII burden-shifting analysis in the present case.9

The Title VII burden-shifting analysis in disparate

treatment cases is a three-step process. Texas Dept, of

Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) (citing

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). To

begin, Sharif must make a prima facie case of discrimination by

providing evidence that: (1) he is part of a class protected by

Title VI; (2) his performance at Dartmouth was satisfactory; (3)

he was dismissed; and (4) the circumstances of his dismissal

support an inference that Dartmouth's actions were motivated by

his racial or ethnic identity. See Hicks, 113 S. C t . at 2747;

Udo v. Tomes, 54 F.3d 9, 12 (1st Cir. 1995); Lipsett, 864 F.2d at

899. If he establishes a prima facie case of discrimination, a

9 In the context of Title IX claims, the First Circuit has limited the application of the Title VII burden-shifting standard to proof of discrimination in training or employment. Cohen v. Brown University, 991 F.2d 888, 901 (1991); Lipsett v. University of Puerto Rico, 864 F.2d 881, 896-97 (1st Cir. 1988). The distinctions found in the circuit's Title IX decisions would not bar the application of the Title VII standard in this case.

20 low threshold, he creates a rebuttable presumption that Dartmouth

intentionally discriminated against him. Hicks, 113 S. C t . at

2747; Smith v. Stratus Computer, Inc., 40 F.3d 11, 15 n.4 (1st

Cir. 1994) (burden is not onerous), cert, denied, 115 S.Ct. 1958

(1995). At this stage, although the burden of production shifts

to Dartmouth, the burden of persuasion as to Dartmouth's

discriminatory intent remains with Sharif throughout the

analysis. Byrd v. Ronayne, 61 F.3d 1026, 1030 (1st Cir. 1995),

cert, denied, 116 S. C t . 914 (1996).

To rebut the presumption of discriminatory intent, Dartmouth

must produce evidence which, if "taken as true, would permit the

conclusion that there was a nondiscriminatory reason for the

adverse action." Hicks, 113 S. C t . at 2748; accord Burdine, 450

U.S. at 253; Smith v. F.W. Morse, No. 95-1556, 1996 WL 46919, at

*4 (1st Cir. Feb. 12, 1996). If Dartmouth carries its burden of

production, the presumption of discrimination "'drops out of the

picture.'" Woodman v. Haemonetics Corp., 51 F.3d 1087, 1091 (1st

Cir. 1995) (guoting Hicks, 113 S. C t . at 2749).

At the third stage, Sharif, still shouldering the burden of

proving Dartmouth's intentional discrimination, "must proffer

'sufficient admissible evidence, if believed, to prove by a

preponderance of the evidence each essential element in a prima

21 facie case and that the employer's justification for the

challenged employment action was merely a pretext for

impermissible . . . discrimination.'" Byrd, 61 F.3d at 1031

(quoting Hicks, 113 S. C t . at 2749). At least one circuit has

interpreted dicta in Hicks to entitle a plaintiff to submit her

claim to a jury if she proves her prima facie case and shows that

the defendant's reason was false. See Anderson v. Baxter

Healthcare Corp., 13 F.3d 1120, 1123 (7th Cir. 1994) . The First

Circuit, however, has determined that proof of a prima facie case

and evidence of pretext will suffice only if the factfinder could

reasonably conclude from all of the evidence presented that

impermissible discrimination was the real reason for the

defendant's adverse action. Barbour v. Dynamics Research Corp.,

63 F.3d 32, 39 (1st Cir. 1995); Udo, 54 F.3d at 13; Smith, 40

F.3d at 16; Woods v. Friction Materials, 30 F.3d 255, 260-61 n.3

(1st Cir. 1994). In other words. Title VI, like Title VII, does

not provide relief from unfair decisions "unless the facts and

circumstances indicate that discriminatory animus was the reason

for the decision." Smith, 40 F.3d at 16; accord Dartmouth Review

v. Dartmouth College, 889 F.2d 13, 19 (1st Cir. 1989).

Accordingly, proof of a prima facie case plus pretext will be

enough to survive summary judgment only if the plaintiff can also

22 prove that the stated reason was a pretext for a discriminatory

reason. I apply the First Circuit standard in evaluating

Sharif's claim.

b. Analysis

Dartmouth has produced substantial evidence in support of

its contention that Sharif was dismissed because of his poor

academic performance. Therefore, even if Sharif has demonstrated

a prima facie case, something I do not decide, he cannot survive

Dartmouth's challenge to his Title VI claim unless he can produce

enough evidence to permit a reasonable factfinder to conclude

that Dartmouth's proffered reason was a mere pretext for racial

or ethnic discrimination.

Sharif has offered several types of evidence to support his

Title VI claim. First, he cites statements by Dr. Naitove and

other evidence suggesting that the CSP had allowed worse students

to take reexaminations and to remain in the program. Second, he

points to evidence suggesting that the CSP's decision was based,

at least in part, on the fact that Sharif behaved differently

from the other students. Finally, Sharif offers what he

considers to be evidence that his failing grade in endocrinology

was unwarranted. This evidence is insufficient to permit a

reasonable factfinder to conclude that Dartmouth's explanation is

23 a mere pretext for discrimination.

Evidence suggesting that Dartmouth allowed worse students of

unidentified racial and ethnic backgrounds to take reexaminations

and remain in the program may be sufficient to support a finding

of pretext, but it is not sufficient to support a finding that

Dartmouth's stated reason for dismissing Sharif was a pretext for

unlawful discrimination. If academic performance were defined

narrowly to include only grades, it may well be that Dartmouth

did not dismiss Sharif, as it claimed, solely because of his poor

academic performance because there is evidence in the record to

suggest that some members of the CSP were influenced by Sharif's

strange behavior as well as his poor grades. However, Sharif has

not offered a shred of evidence to link his "strange" behavior to

his race or ethnic background.10 Nor has he offered any other

evidence that would permit a reasonable factfinder to conclude

that the real reason for his dismissal was his race or ethnic

background. Standing alone, this evidence is insufficient to

10 To the contrary, the concerns expressed by CSP members about Sharif's inability to interact appropriately with patients and peers transcends race or ethnicity and focuses on skills necessary to the medical profession. See, e.g.. Regents of Univ. of Mich, v. Ewing, 474 U.S. 214, 227-28 (1985); Bina v. Providence College, 39 F.3d 21, 24 (1st Cir. 1994), cert, denied, 115 S.Ct. 1406 (1995).

24 establish a triable case of racial discrimination.

Nor am I persuaded by his evidence challenging his failing

endocrinology grade. As the Supreme Court has acknowledged,

"[c]ourts are particularly ill-eguipped to evaluate academic

performance." The Board of Curators of the Univ. of Mo. v.

Horowitz, 435 U.S. 78, 92 (1978). In the absence of some

evidence permitting a conclusion that other students of different

racial or ethnic backgrounds were subject to a different grading

standard, Sharif's evidence of vindictive grading is

unpersuasive.

In summary, Sharif has failed to produce any evidence to

support his discrimination claim. As the First Circuit

acknowledged in a similar case involving Dartmouth, "merely

juxtaposing the fact of one's race with an instance of

discrimination is insufficient" to establish "a causal link

between the defendants' conduct and plaintiffs' race." Dartmouth

Review, 889 F.2d at 19.11

11 Even if Sharif's § 1981 claim were not barred for the reasons discussed previously, it too would fail for lack of evidence of intentional discrimination. See Alexis v. McDonald's Restaurants of Mass., 67 F.3d 341, 347 (1st Cir. 1995) (citing General Bldq. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 391 (1982) ) .

25 B. State Law Claims

Sharif brings state law claims alleging breach of contract,

breach of the duty of good faith and fair dealing, breach of

fiduciary duty, negligence, defamation, negligent and intentional

infliction of emotional distress, and conspiracy against

Dartmouth, CSP and faculty members, and a classmate who were

involved in his experiences at Dartmouth. I examine his claims

and the proof he offers in light of the summary judgment

standard.

1. Claims Based on the Handbook

Sharif charges Dartmouth with breach of contract, breach of

the duty of good faith and fair dealing, and breach of fiduciary

duties, all based on his interpretation of the Handbook. I begin

with the breach of contract claims and then address the breach of

good faith and fiduciary duty claims,

a. Breach of contract

The parties agree that the Handbook acts as a contract

between Dartmouth and its students. See Ross v. Creighton Univ.,

957 F.2d 410, 416 (7th Cir. 1992). Sharif contends that

Dartmouth breached several provisions of the Handbook.

As in all contract disputes, the interpretation of an

unambiguous contract presents a guestion of law. Gamble v.

26 University of N.H., 136 N.H. 9, 13 (1992) (quoting Goodwin R.R.,

Inc. v. State, 128 N.H. 595, 602 (1986)). The meaning of the

contract depends upon the objective intent of the parties at the

time the contract was made. Id. The parties' intent is

determined from the terms of the agreement taken as a whole, and

the meaning is that which a reasonable person in the parties'

position would understand. Id. If the parties could reasonably

differ as to the meaning of a contract provision, it is ambiguous

and extrinsic evidence may be considered. Id. However, such an

ambiguity must be resolved by the trier of fact unless,

considering all of the evidence, a rational factfinder could

resolve the ambiguity in only one way. Gamble, 136 N.H. at 15

(court determined meaning of ambiguous contract where, upon

consideration of extrinsic evidence, only one interpretation was

reasonable); Public Service v. Seabrook, 133 N.H. 365, 370 (1990)

(ambiguous contract presents a question of fact).

The New Hampshire Supreme Court has recognized that

interpreting a contract between a university and its students

requires consideration of the academic context of the agreement.

Gamble, 136 N.H. at 13 (citing Lyons v. Salve Regina College, 565

F.2d 200, 202 (1st Cir. 1977), cert, denied, 435 U.S. 971

(1978)). The court determined that "although the first step of

27 the analysis is to examine the language of the contract under the

basic tenets of contract law, the parties' unigue relationship

must also be considered." Gamble, 136 N.H. at 13. Other courts

have interpreted the unigue relationship in the university

context to reguire that an academic institution's decisions

concerning a student's academic evaluation be given deference,

while procedural issues are reviewed under ordinary rules of

contract construction. See, e.g., Doherty v. Southern College of

Optometry, 862 F.2d at 577; Fellheimer v. Middleburv College, 869

F. Supp. 238, 243 (D.Vt. 1994). I begin with Sharif's claims

based on the Handbook's procedural provisions, and then address

his challenges to Dartmouth's academic decisions.

(i) Procedures

Sharif challenges the procedures employed by the CSP in

making and affirming the decision to dismiss him. First, he

contends that the CSP violated the Handbook by excluding him from

its meeting on February 27, 1991, when the CSP made its initial

decision to dismiss Sharif. The Handbook provides in the section

titled "Committee on Student Performance": "A student shall be

entitled to a hearing before the CSP in any case which may

involve possible suspension or separation." Handbook at 16.

Sharif argues that the cited provision means he was entitled to

28 attend the CSP initial meeting in February as well as the later

CSP appeal hearings. The next section, "Rights of Students,"

provides the procedures applicable to appeals hearings before the

CSP.12

Contrary to Sharif's interpretation, however, the Handbook

contains no provision for students to attend any CSP meetings

other than appeals hearings. Conseguently, based on the

Handbook, Sharif was entitled to an appeal hearing before the

CSP, which he received, but was not entitled to attend the

February meeting. Therefore, his contract claim that he was not

notified of the charges against him before the February meeting,

and not given an opportunity to prepare, to testify and present

evidence, or examine the evidence and witnesses against him there

12 The provisions Sharif relies on are in the "Rights of Students" section: Paragraph 3: "A student shall have a reasonable time to prepare his or her case after receiving the charge." Paragraph 4: "Notification of the charges against a student shall be made in writing. Such notification shall indicate the regulation or regulations allegedly violated and shall contain a concise statement of the reported facts which constitute the violation or violations." Paragraph 9: "The student shall have the right to hear and cross-examine all witnesses and to examine all other evidence introduced against him or her." Paragraph 10: "The student shall have the right to testify and present evidence and witnesses in his or her own behalf."

29 is meritless.

Sharif next argues that the CSP based its decision to

dismiss him on "unsubstantiated, rank hearsay and student-facuity

rumors" introduced at the first appeal hearing in violation of

his rights in the Handbook.13 The evidence he cites, a letter

from Dr. Lin Brown describing a report by another student that

Sharif's fiancee was present during a physical diagnosis class

examination, was introduced at the March 27 hearing. Sharif

admits, however that Dr. Brown retracted and corrected her letter

prior to the second appeal hearing. Moreover, Sharif received

advance notice of all evidence to be considered at the second

hearing, was represented by counsel at the hearing, and he does

not challenge the procedures afforded him at that time. Thus,

any procedural unfairness that may have occurred at the first

hearing was cured by the subseguent hearing.

Sharif also contends that the CSP members were impermissibly

13 Paragraph 8 of the "Rights of Students" section provides: "In each case, the CSP shall base its decisions solely on evidence introduced at the hearing." Paragraph 11 provides: "Formal rules of evidence shall not apply and the CSP may consider any testimony or evidence it considers to be trustworthy and to have probative value. The CSP may exclude any testimony or evidence it considers to be unduly repetitious or immaterial to the issue before it, or to have been improperly obtained."

30 biased against him in violation of the Handbook requirement.14

Sharif provides no evidence of bias other than that the CSP

repeatedly affirmed its initial decision to dismiss him. He did

not challenge the impartiality of any CSP members during the

hearings process. The Handbook does not define prohibited bias,

but borrowing the constitutional due process standard,15 the

record does not support Sharif's allegations of bias.

Finally, Sharif argues that Dartmouth colluded with his

classmate, Sarah Henry, and unnamed others to disseminate "false

accusations, hearsay and speculations" about him in violation of

14 "Rights of Students" paragraph 6 provides: A member of the CSP who has a special bias or interest which would prevent him or her from judging the case impartially shall disqualify himself or herself from adjudication of the case. The student may challenge a member on such grounds. In this case the decision on disqualification shall be decided by a majority vote of the CSP members present and voting.

15 To show bias in violation of the right to due process, Sharif would have to "overcome a presumption of honesty and integrity in those serving as adjudicators" by identifying an influence strong enough that it "poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented." Withrow v. Larkin, 421 U.S. 35, 47 (1975). A speculative, contingent, or remote interest does not violate the due process requirement. Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 826 (1986) .

31 the Handbook's "Conduct Regulations."16 The conduct regulations

obligate a student to abide by certain standards and may be

enforced by Dartmouth. However, Sharif has no contractual right

to enforce those provisions against other students or Dartmouth

in this context.

(ii) Academic provisions

Sharif contends that Dartmouth's decision not to allow him

to retake the endocrinology examination breached his rights under

the Handbook. He cites the Handbook provision stating that: "A

student who fails one course during a single academic year shall

ordinarily be permitted a re-examination. Please refer to

Paragraph #9." Handbook, Academic Regulations, 54. Paragraph 9

states: "Permission for any re-examination must be given by the

Office of Academic Affairs, which will determine the date of the

re-examination in consultation with the course director. No more

than one re-examination per course will be permitted." At the

time he failed endocrinology, it was his only failure in that

Sharif cites the following paragraphs: "2. No student shall furnish false information to the medical school with an intent to deceive"; and "5. No student shall conduct himself or herself in a manner which fails to meet the standards of the medical profession or which interferes with the educational process."

32 academic year. Dartmouth contends that it fulfilled its

obligations under the Handbook.

First, the use in the regulation of the gualifying term

"ordinarily" affords Dartmouth a measure of discretion in whether

to allow a reexamination. Ordinarily means, in everyday

parlance, "most of the time; generally; usually." Random House

Unabridged Dictionary 1363 (2d ed. 1993). Thus, the Handbook did

not guarantee that students would always be allowed

reexamination, but provided only that reexamination would usually

be allowed, giving Dartmouth discretion to determine whether or

not to allow a reexamination in particular circumstances. It is

undisputed that the endocrinology faculty, who are authorized by

the Handbook17 to establish the reguirements for the course,

explained that Sharif would fail endocrinology even if he were to

pass a reexamination. This academic judgment is entitled to

substantial deference. Ewing, 474 U.S. at 226. Thus, because of

the unusual circumstances of Sharif's case, in which a

reexamination would not cure the course failure, the faculty's

17 The Handbook provides under "Academic Regulations" at Paragraph 2: "Each course has reguirements for completion, which are established by the faculty teaching that course. If these reguirements are not met the result will be a failing grade and review by the Committee on Student Performance."

33 decision not to allow a reexamination, affirmed by the CSP, fell

within the discretion allowed in Paragraph 4.

Next, Sharif argues that the CSP voted to separate him

prematurely, in violation of the Handbook, as he had failed only

one course, endocrinology, at the time of the CSP's initial

decision in February. Paragraph 8 provides that a student who

fails two or more courses during the four year program, "with or

without re-examination," is subject to review by the CSP who may

recommend separation. Handbook at 14. Paragraph 3 provides, "In

evaluating students with current academic deficiencies, the

Committee on Student Performance will review and take into

account their entire academic records, weighing low passes, and

previous failures that were subseguently made up by re­

examination, as well as current failures and low passes." Id.

Thus, taken in the context of the Academic Regulations as a

whole, it is clear that a course failure, although it is later

converted to a pass following a reexamination, continues to be

significant in evaluating a student's overall academic

performance. Although the CSP is not reguired to dismiss a

student with two course failures, it may exercise its discretion

to do so. Because Sharif failed neuroanatomy in his first year,

although he passed with a reexamination, he was subject to review

34 and possible dismissal when he failed endocrinology. Even if

Sharif had been allowed a reexamination in endocrinology and if

he had then passed the course, he would still have been subject

to CSP review because he received two course failures.

Accordingly, the Handbook did not prevent Dartmouth from

reviewing Sharif's status and dismissing him following the second

course failure.

As no reasonable juror could find that Dartmouth breached

any Handbook provisions, Dartmouth is entitled to summary

judgment as to all of the breach of contract claims.

b. Breach of Implied Duty of Good Faith and Fair Dealing

Sharif alleges that Dartmouth breached its implied duty of

good faith and fair dealing by not showing reasonable sensitivity

to him, by not stopping his fellow students' "subterfuge" against

him, by not allowing him a reexamination in endocrinology despite

his passing grade on the NBME Part I, by not providing an

eguitable appeals process, and by not writing a recommendation

for him to transfer out of Dartmouth at the end of his second

year. In essence, he argues that Dartmouth acted unreasonably or

in bad faith in the way it exercised its discretion provided in

the Handbook.

35 Sharif's good faith and fair dealing claim fits the category

of cases under New Hampshire law that address good faith in

discretionary contract performance.18 See Centronics Corp. v.

Genicom Corp., 132 N.H. 133, 139 (1989). Under the Centronics

standard, when

an agreement that appears by word or silence to invest one party with a degree of discretion in performance sufficient to deprive another party of a substantial proportion of the agreement's value, the parties' intent to be bound by an enforceable contract raises an implied obligation of good faith to observe reasonable limits in exercising that discretion, consistent with the parties' purpose or purposes in contracting.

Id. at 143. In this case, Dartmouth and Sharif agreed to comply

with the terms of the Handbook, and the Handbook conferred

discretion on Dartmouth to make decisions related to academic

gualifications of students. See, e.g., Bilut v. Northwestern

Univ., 645 N.E.2d 536, 542 (Ill.App.Ct. 1994) ("The foundation of

[the relationship] is the understanding that the students will

abide by and adhere to the disciplinary regulations and the

academic standards established by the faculty and the university;

I need not address Dartmouth's claim that schools do not owe their students an implied duty of good faith and fair dealing because I conclude that Sharif has produced insufficient evidence to support a good faith and fair dealing claim even if such a duty exists in this context.

36 and that upon successful completion of their studies, they will

be awarded a degree.")a app. denied, 649 N.E.2d 413 (111. 1995).

Courts have afforded broad discretion to schools making

academic decisions. See, e.g., Ewing, 474 U.S. at 226 (federal

courts are not suited "to evaluate the substance of the multitude

of academic decisions . . . that reguire 'an expert evaluation of

cumulative information and [are] not readily adapted to the

procedural tools of judicial or administrative decisionmaking'"

(guoting Horowitz, 435 U.S. at 89-90)) . See also Ross, 957 F.2d

at 416 (courts are not gualified to review academic

gualifications of students); Doherty, 862 F.2d at 577-78)

(arbitrary and capricious standard applied to college's change in

degree reguirements); Frederick v. Northwestern Univ. Dental

School, 617 N.E.2d 382, 387 (111.App.) (arbitrary, capricious, or

bad faith standard applied to adverse decision for academic

deficiencies), appeal denied, 622 N.E.2d 1204 (1993); Bleicher v.

University of Cincinnati College of Medicine, 604 N.E.2d 783, 788

(Ohio C t . App. 1992) (same). Further, an academic decision may

be based appropriately on a broad view of the student's

performance including his or her suitability for the profession.

Ewing, 474 U.S. at 227-28; Horowitz, 435 U.S. at 91 n.6.

37 In Horowitz, the Supreme Court reviewed the university's

decision to dismiss a medical student for due process violations.

The university's decision was based on deficiencies in her

clinical competency including that her performance with patients

was below par, her attendance was erratic, and her personal

hygiene was poor. Id. The Court refused to intrude into the

university's decision since it "rested on the academic judgment

of school officials that she did not have the necessary clinical

ability to perform adeguately as a medical doctor." Id. at 89-

90. Similarly, in Ewing, the Supreme Court noted that the

University could properly consider as part of its academic

evaluation that the student's "sensitivity to difficulties in his

personal life suggested an inability to handle the stress

inherent in a career in medicine" and other activities that

revealed "a lack of judgment and an inability to set priorities."

Ewing, 474 U.S. at 227 n.13. See also Alanis v. University of

Tex. Health Science Ctr., 843 S.W.2d 779, 785 (Tx.Ct.App. 1992)

(suitability to practice medicine is an academic gualification).

These precedents are instructive when considering how the New

Hampshire Supreme Court is likely to interpret the duty of good

faith and fair dealing in the academic context.

38 It is undisputed that Sharif's grades were poor during both

years and that he was on Academic Notice during most of his time

at Dartmouth. Under the terms of the Handbook, as I have shown

above, Dartmouth had discretionary authority to deny him a re­

examination in endocrinology and to separate him from the program

based on his grades. The record establishes beyond reasonable

dispute that Dartmouth decided not to allow Sharif to stay

because of his overall academic performance. In addition to his

poor grades, the CSP considered his erratic course attendance,

his failure to meet course reguirements, his problems with fellow

students and negative evaluations in clinical programs, and his

failure to change his approach to medical school even after his

errors were discussed with him. Sharif has not shown that the

aspects of his performance considered by the CSP were not

reasonable considerations for evaluating the gualifications of a

medical student or doctor. Nor has he produced any credible

evidence to support his claims that the CSP's concerns were

merely a proxy for race or ethnic discrimination. Therefore,

based on the record, Dartmouth's exercise of its discretion to

expel Sharif based on his poor academic performance, coupled with

poor prospects for success, could not be considered by a

reasonable factfinder to be unreasonable. Therefore, Sharif's

39 breach of good faith and fair dealing claim necessarily fails,

c. Breach of Fiduciary Duty

To maintain a claim against Dartmouth for breach of a

fiduciary duty, Sharif must first show that a fiduciary

relationship existed with Dartmouth. Under New Hampshire law, a

fiduciary relationship may exist in "a variety of circumstances,

and does exist in cases where there has been a special confidence

reposed in one who, in eguity and good conscience, is bound to

act in good faith and with due regard to the interests of the one

reposing the confidence." Lash v. Cheshire County Sav. Bank, 124

N.H. 435, 439 (1984) (guotation omitted). The duty is breached

when the "influence has been acguired and abused or confidence

has been reposed and betrayed." Id. at 438 (guotation omitted).

As I have already noted, Sharif has produced insufficient

evidence to support his claim that Dartmouth acted unreasonably

in denying him a reexamination in endocrinology or in dismissing

him from school. For the same reasons, Sharif's breach of

fiduciary duty claim cannot survive even if Dartmouth owed him a

fiduciary duty.

2. Defamation Claims

Sharif brings claims for libel and slander in different

counts. Because both libel and slander are evaluated as

40 defamatory statements, I need not distinguish between them. See

Morrissette v. Cowette, 122 N.H. 731, 733 (1982); Restatement,

Second, Torts § 568 (1977) .

To prove defamation under New Hampshire law, a private

individual plaintiff must show that the "defendant failed to

exercise reasonable care in publishing, without a valid

privilege, a false and defamatory statement of fact about the

plaintiff to a third party." Independent Mechanical Contractors,

Inc. v. Gordon T. Burke & Sons, Inc., 138 N.H. 110, 118 (1993);

accord Duchesnave v. Munro Enters., 125 N.H. 244, 250 (1984) . A

statement is defamatory only if it "tends to lower the plaintiff

in the esteem of any substantial and respectable group of

people." Nash v. Keene Publishing Corp., 127 N.H. 214, 219

(1985). Statements that are substantially true are not

actionable. Simpkins v. Snow, 661 A.2d 772, 777 (N.H. 1995).

Opinions can serve as the basis for a defamation claim if

the opinion reasonably implies false and defamatory facts.

Milkovich v. Lorain Journal Co., 497 U.S. 1, 20-21 (1990);

Duchesnave, 125 N.H. at 249. However, a statement of opinion is

not actionable unless it is "sufficiently factual to be

susceptible of being proved true or false." Milkovich, 497 U.S.

at 21; accord Phantom Touring, Inc. v. Affiliated Publications,

41 953 F.2d 724, 727-28 (1st Cir.),. cert, denied, 504 U.S. 974

(1992). Further, an opinion cannot serve as the basis for a

defamation action if it is apparent from the surrounding context

that the opinion is based solely on disclosed non-defamatory

facts. Standing Committee on Discipline of the U. S. Dist. Court

for the Cent. Dist. of Cal. v. Yaaman, 55 F.3d 1430, 4439 (9th

Cir. 1995); Nash, 127 N.H. at 219; Restatement (Second) of Torts

§§ 566, cmt. c (1977) ("A simple expression of opinion based on

disclosed . . . nondefamatory facts is not itself sufficient for

an action of defamation, no matter how unjustified and

unreasonable the opinion may be or how derogatory it is.").

New Hampshire recognizes a conditional privilege for

statements that "although untrue, were published on a lawful

occasion, in good faith, for a justifiable purpose, and with a

belief, founded on reasonable grounds of its truth" as long as

the statements were not made with actual malice. Simpkins, 661

A.2d at 777 (internal guotation omitted). I examine the

challenged statements in light of the applicable standard.

(a) Statements about Sharif's fiancee's visit to physical diagnosis class.

Sharif challenges several statements about an incident in

which Sharif invited his fiancee to attend a pelvic examination.

42 which was part of his physical diagnosis class. Dr. Lin Brown,

Director of Physical Diagnosis, wrote to Dr. O'Donnell on March

25, 1991, as follows:

I[t] has come to my attention through a member of the DMS 2 class that Adil Sharif's fiancee attended the teaching session on the pelvic exam, including examining a teaching assistant. Her non-medical student status was never identified to the program coordinator but the students in the group were understandably upset. I bring their concerns to your attention.

Her letter was included in the information provided to the CSP at

the March 27 hearing. Dr. O'Donnell stated in his opening

remarks at the hearing:

He did not identify to instructor (Lin Brown) that this was not a medical student and so the simulated patient who is the one being examined didn't know that in the room was a non-medical student.

The incident was then discussed with Sharif and among the CSP

members. On March 29, Dr. Brown corrected her original report in

the following letter:

Since my letter dated 3/26/91 [3/25/91] concerning Adil Sharif and his fiancee, I have spoken with Elsa Lind, the gynecology teaching assistant coordinator. This conversation does contradict the student informer's account of the incident. Adil did ask Ms. Lind about his fiancee's participation & got both Elsa's & the teaching assistant's approval. Although I still feel that Adil's judgement could be guestioned concerning inviting his fiancee in the first place, he did indeed secure permission.

43 Obviously, I am to blame for not asking for Ms. Lind's account earlier, but I did accurately portray the student informer's concerns & conversations with me.

Sharif charges that the harm to him due to the false and

defamatory account of the incident was irreparable despite Dr.

Brown's clarification.

Dr. Brown's original report to Dr. O'Donnell passed along

information to the head of the CSP as it had been reported to her

by a member of the class. The CSP was the appropriate body to

receive and evaluate the information. Therefore, Dr. Brown is

protected from liability by the conditional "good faith"

privilege unless she acted maliciously. See Simpkins, 661 A.2d

at 777. Sharif has not shown malice. Therefore, he cannot

premise a defamation claim on Dr. Brown's letter.

Similarly, to the extent Sharif bases defamation claims

against Dr. O'Donnell or other members of the CSP on their

remarks based on Dr. Brown's letter, those statements were

reasonably based on the information in the letter and made in the

context of the CSP meeting. He has not shown that the CSP

members acted with malice in discussing the incident reported in

Dr. Brown's letter. Thus, their statements are also protected by

the conditional "good faith" privilege.

44 (b) Other statements made during the March CSP hearing

Sharif challenges many statements made by CSP members during

the March 27 hearing. In general, the challenged statements are

not actionable because they are either based on disclosed

nondefamatory facts or they are not sufficiently factual to be

susceptible of proof. For instance, Sharif charges that Dr.

Harris defamed him by stating, "And I think he's shown clearly

over the two years numerous episodes of at least poor judgment

and, at the worst, inappropriate behavior bordering on medical

ethics breaching." He prefaced his opinion by stating, "I think

we have to consider the behavioral issues here because they're

extremely important." The behavioral issues Dr. Harris was

referring to were disclosed in the context of the discussion

including Sharif's poor attendance in endocrinology and other

classes, inviting his fiancee to the physical diagnosis class,

and his problems in interviews in two classes. Dr. Harris's

evaluation of Sharif's performance is simply his opinion based on

disclosed facts.

In addition, all of the statements are protected by the

conditional "good faith" privilege because they were made by CSP

members about matters under consideration at the hearing in the

45 context of CSP proceeding. Thus, all of the statements were made

"on a lawful occasion" and for "a justifiable purpose" and the

information at the hearing provided a reasonable basis for

belief. See Simpkins, 661 A.2d at 776-77. Despite Sharif's

conclusory statements that the defendants acted with malice

against him, he has presented no evidence of actual malice by any

of the CSP members toward him.

(c) Sarah Henry's statements

Sharif alleges that his fellow classmate, Sarah Henry,

"reported personally biased views about Plaintiff's character and

behavior to not only other students but also several faculty."

Specifically, he challenges her statements about his behavior in

their small group psychiatry session that he had arrived forty-

five minutes late, that he had attended only two sessions, and

that he was being seductive in his interview style. Her

statements were substantially corroborated by Dr. Michael Kligman

and Micaela Crawley of the psychiatry small group staff and

Sharif does not contest the truth of the essential facts on which

Henry based her characterizations of his behavior. Thus, being

substantially true, her statements are not actionable.

In the other incidents Sharif cites, the "bad egg" statement

was made only to him and thus was not "published." He describes

46 Henry's disapproval of his inquiry of a patient in a physiology

course and a previous altercation between them in the psychiatry

group session, but he does not provide specific allegedly

defamatory statements that Henry made about him in either

incident. Thus, those allegations cannot be reviewed. Despite

evidence of Sarah Henry's dislike for Sharif and of her outspoken

criticism of him, the incidents he recounts do not amount to

defamation. Summary judgment is granted in her favor.

(d) Academic statements

Next, Sharif challenges Dr. O'Donnell's letter dated May 9,

1991, to Dr. Stephen R. Smith, Associate Dean of Medicine at

Brown University School of Medicine that states: "Adil Sharif

will not be coming to Brown this year with the rest of the group

because of academic difficulties." He argues that the letter was

premature, and therefore false, because he had not exhausted the

appeals process. By May 9, the CSP had voted to dismiss him in

February and affirmed the decision in March and again on May 8.

Thus, as of May 9, Dr. O'Donnell's statement was true that Sharif

would not go to Brown with his class. As things transpired, the

dismissal decision was affirmed in the appeals process. Thus,

the letter was true when sent, remained true when the appeals

process terminated, and had no defamatory effect.

47 Finally, Sharif argues that the notation on his transcript,

"STUDENT SEPARATED FROM DARTMOUTH MEDICAL SCHOOL 6/26/91,"

"besmirched" his academic standing. The notation, being true, i

not actionable. Summary judgment is granted in favor of all

defendants as to Sharif's defamation claims.

3. Negligence

Sharif alleges negligence claims against Dean Wallace, Dr.

O'Donnell, Dr. Brown, and Dartmouth based on their actions and

failures to act during his tenure at Dartmouth and particularly

in the dismissal process. To prove a claim of negligence, a

plaintiff must show "the existence of a duty flowing from the

defendant to the plaintiff and that the defendant's breach of

that duty caused the injury for which the plaintiff seeks to

recover." Hickingbotham v. Burke, 662 A.2d 297, 301 (N.H. 1995)

accord Goodwin v. James, 134 N.H. 579, 583 (1991). "Absent a

duty, there is no negligence. Whether a duty exists in a

particular case is a guestion of law." Walls v. Oxford

Management C o ., 137 N.H. 653, 656 (1993) (citations omitted).

I examine the sufficiency of the evidentiary support for his

negligence claims.

Sharif alleges that Dean Wallace "should have stepped in

to veto separation and to insist that the CSP and Professor Lee Witters allow a make-up exam." He contends that Dartmouth

"failed to observe for the protection of the Plaintiff's

interests, that degree of care, precaution and vigilance which

the circumstances demanded, whereby Plaintiff suffered loss of

his medical career and related damages." Sharif trips at the

first step of the negligence analysis: he provides no legal or

factual basis to establish a duty owed to him by either Dean

Wallace or Dartmouth other than the contractual and guasi-

contractual duties I have already discussed. "Where there is no

legal duty, there can be no breach of duty, and no finding of

negligence." Sousa v. State, 119 N.H. 283, 285 (1979).

Sharif contends that Dr. Brown and Dr. O'Donnell should have

verified the substance of Dr. Brown's letter about his fiancee

attending the examination before presenting the letter to the

CSP. Sharif argues that Dr. O'Donnell had a direct or implicit

duty to protect him and that Dr. Brown, "[a]s the Director of the

Physical Diagnosis Department" had "the essential duty, implicit

or otherwise, to verify facts and substantiate hearsay." He

offers no support for a duty owed by either Dr. O'Donnell or Dr.

Brown. Instead, he merely restates his defamation claims in the

guise of negligence claims. As I have previously determined that

the evidence does not support his defamation claims, and he has

49 identified no separate duty obligating Dr. O'Donnell or Dr. Brown

to investigate the truth of the letter, the negligence claims

must also fail. Summary judgment is granted as to all defendants

on the negligence claims.

4. Emotional Distress

Sharif alleges claims for both intentional and negligent

infliction of emotional distress. He does not assert a negligent

infliction of emotional distress cause of action arising from

injury incurred by a bystander who witnesses the injury of

another, see Corso v. Merrill, 119 N.H. 647, 650 (1979), nor does

he allege negligent conduct by particular defendants resulting in

emotional distress. Instead, he merely describes his injuries--

emotional distress including a physical condition allegedly

caused by the stressful circumstances. As I have granted summary

judgment as to Sharif's negligence claims, I find no basis for

his claim for negligence damages. See, e.g., Thorpe v. State,

133 N.H. 299, 303 (1990).

To maintain a claim for intentional infliction of emotional

distress, Sharif must establish that the defendants "by extreme

and outrageous conduct intentionally or recklessly cause[d]

severe emotional distress to [him]." Morancv v. Morancv, 134

N.H. 493, 495-96 (1991) (guoting Restatement (Second) of Torts §

50 46 (1965)). In support of his claim, he states that Dartmouth

inflicted "willful harassment and pressure to make Adil 'conform'

to some abstruse, provincial standards," Dartmouth "willfully

condoned Sarah Henry's deliberate, spiteful and obsessive

assassination of Adil's character," the CSP made personal verbal

attacks on him, and certain unnamed students and faculty referred

him to Dartmouth's "Committee on Impaired Students." He also

faults the CSP members for failing to adequately consider his

concern about his mother's health in the decision not to allow a

reexamination in endocrinology. He alleges, "When Plaintiff

discussed the issue during his 3/27/91 appeals hearing.

Defendants reacted only with a cruel, sadistic stare. Evidently,

their minds were made up and they simply did not care and may

have had some sadistic pleasure."

Despite Sharif's colorful pleading, he has offered no

evidence of the defendants' intent as to any of his allegations.

Also, the actions he describes, stripped of his hyperbole, are

neither outrageous nor extreme. Summary judgment is granted in

favor of the defendants on Sharif's emotional distress claims.

5. Conspiracy

Sharif alleges a separate count of conspiracy against all of

the defendants stating that the defendants knew of each others'

51 wrongful conduct, and provided substantial assistance in the

conduct. Specifically, Sharif lists their wrongful conduct as:

(1) "usurpation of Dartmouth Medical School's [Handbook

provisions] entitled to Plaintiff Adil Sharif"; (2) "wrongful

separation and willful destruction of Adil's life-work and dream

of serving as a physician--ignoring his passing of the rigorous

National Boards Part I on first attempt in June 1991"; (3)

"denial of re-examinations in Endocrinology and then also in

Gastroenterology--entitled to Adil by Dartmouth bylaws"; (4)

"utilization of unsubstantiated hearsay and faculty-student

gossip"; (5) "dissemination of these aforementioned false

accusations that destroyed Adil's reputation and character in the

medical community"; (6) "barring Adil from deliberations -- much

less recording deliberations portions of appeals hearings as per

DMS bylaws"; (7) "allowing already biased CSP members to vote on

final decision to separate on 6/26/91 and previous hearing on

5/8/91"; (8) "besmirch[ing] Adil's transcript with 'separation'

inscription"; and (9) refusing to "write Adil letters of

recommendation reguired for transfer admission to any other

medical school."

"A civil conspiracy is a combination of two or more persons

by concerted action to accomplish an unlawful purpose, or to

52 accomplish some purpose not in itself unlawful by unlawful

means." Jav Edwards, Inc. v. Baker, 130 N.H. 4 1 , 47 (1987)

(Quotation omitted). However, a cause of action for civil

conspiracy cannot survive without an "underlying tort which the

alleged conspirators agreed to commit." University System of

N.H. v. United States Gypsum Co., 756 F. Supp. 640, 652 (1991) .

Because I have already determined that the defendants' cited

conduct was not wrongful, and thus no underlying tort was

committed, Sharif's conspiracy claim must also fail. Summary

judgment is granted as to all defendants on the conspiracy claim.

Because I have granted summary judgment in favor of the

defendants as to all claims, I decline to reconsider my order

denying in part the defendants' motion to dismiss the complaint

as barred by the statute of limitations.

IV. CONCLUSION

For the foregoing reasons, defendants' motion for summary

judgment (document no. 57) is granted, and plaintiff's motion for

summary judgment (document no. 60) is denied. Defendants' motion

for reconsideration (document no. 47) is denied as moot in light

of this order. Judgment shall be entered in favor of the

53 defendants on all counts.

SO ORDERED.

Paul Barbadoro United States District Judge

March 28, 1996

cc: Edward Haffer, Esq. Adil Sharif, pro se