The Volokh Conspiracy
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Plaintiff Can Add Claims to Case Alleging Carnegie Mellon Prof Said Time on Jewish-Related Project "Would Have Been Better Spent" Exploring "What Jews Do to Make Themselves Such a Hated Group"
One claim is that CMU's Chief Diversity Officer illegally recorded meeting with student and the accused professor—and then apparently "asserted her Fifth Amendment rights when ... asked her if she did so or if she had a pattern or practice of recording student meetings, without their consent, in the scope of her duties."
From Judge Scott Hardy's decision today in Canaan v. Carnegie Mellon Univ. (W.D. Pa.) (for more on the earlier decision that allowed much of this claim to go forward, see this post):
Canaan's Complaint alleges that CMU harbors a culture of antisemitism, that certain of its professors and administrators intentionally discriminated against her and harassed her because she is Jewish and of Israeli descent, and that they were deliberately indifferent to her concerns about such discriminatory mistreatment and retaliated against her. Canaan initially asserted claims against CMU for discrimination, harassment, and retaliation in violation of Title VI of the Civil Rights Act of 1964 … along with claims for breach of its own policies and intentional infliction of emotional distress ("IIED").
CMU moved to dismiss Canaan's Complaint in its entirety. The Court mostly denied CMU's motion, except for the IIED claim and a portion of the claim alleging the breach of certain policies….
The parties thereafter commenced extensive discovery …. Canaan contends that such discovery … revealed that CMU's Chief Diversity Officer, Wanda Heading-Grant, surreptitiously recorded a private and sensitive meeting with her and Professor Arscott [the professor plaintiff was accusing -EV] … while Heading-Grant was performing her role as CMU's "facilitator" of such meetings related to bias and discrimination. Canaan further contends that Heading-Grant secretly recorded their meeting to serve CMU by collecting evidence to "leverage" against her, and that Heading-Grant's recording was done without her knowledge or consent and thus constitutes a felony under Pennsylvania law.
Then, Heading-Grant asserted her Fifth Amendment rights when Canaan's counsel asked her if she did so or if she had a pattern or practice of recording student meetings, without their consent, in the scope of her duties….
The court allowed Canaan to amend her complaint in light of this, and rejected CMU's claim that the proposed Wiretap Act claims was legally insufficient:
Pennsylvania's Wiretap Act "offers a private civil cause of action to '[a]ny person whose wire, electronic or oral communication is intercepted, disclosed or used in violation of the [statute]' against 'any person who intercepts, discloses or uses or procures any other person to intercept, disclose or use, such communication.' In other words, it prohibits intercepting communications while allowing someone whose communications have been intercepted to sue the offender." Here, Canaan alleges that Heading-Grant intentionally used an electronic device to record their private meeting with Professor Arscott on November 2, 2022, without her knowledge or consent….
CMU contends that … Canaan's proposed amendments pertaining to Heading-Grant's conduct are devoid of factual averments that CMU directed Heading-Grant to record the meeting and thus fails to establish respondeat superior liability….
Canaan's proposed Amended Complaint avers that Heading-Grant intentionally recorded their private meeting surreptitiously without Canaan's knowledge or consent, that as CMU's Chief Diversity Officer, she was the senior administrator responsible for supporting students and protecting them from discrimination, that she interacted with Professor Arscott and other DEI-related administrators regarding Canaan's complaints, and that she took responsibility for arranging and then facilitating this specific meeting with Canaan and Professor Arscott. Given Heading-Grant's job title and the many averments in the proposed Amended Complaint pertaining to her duties, responsibilities, and conduct in relation to Canaan and the faculty and professors alleged to have participated in her discrimination, harassment, and retaliation, it is reasonable to infer that she holds high level responsibility within CMU for protecting students from discrimination so that CMU complies with applicable nondiscrimination laws and related policies. It is also reasonable to infer that Heading-Grant is responsible for addressing and remediating students' concerns such as the complaints of antisemitism lodged by Canaan, and for facilitating meetings between students and professors to explore redress for alleged discriminatory mistreatment, as she did with Canaan and Professor Arscott on November 2, 2022.
Heading-Grant's actual work conduct, both generally and on November 2, 2002, falls squarely within the kind and nature of duties she is employed to perform on CMU's behalf. Also, Heading-Grant arranged and facilitated the meeting at issue on campus and during work time. Heading-Grant is also alleged to have recorded the meeting to preserve evidence "in an effort to help [CMU] avoid the consequences of" violating federal discrimination laws, such as for future use against Canaan, as came to fruition when CMU's counsel used it, presumably for impeachment purposes, when taking Canaan's deposition. Canaan also avers that Heading-Grant declined to answer questions under oath during her deposition about whether she surreptitiously recorded this specific meeting or whether she had a pattern and practice of recording such meetings generally, thus generating adverse inferences that she, in fact, did those things in the regular course and scope of her duties as CMU's Chief Diversity Officer and Vice Provost for DEI. These averments and the reasonable inferences drawn therefrom, including adverse inferences that may be drawn from Heading-Grant invoking her right against self-incrimination under the Fifth Amendment, plainly support a plausible respondeat superior claim against CMU under the Wiretap Act….
The court likewise allowed Canaan to amend her IIED claim:
To be actionable [as IIED], the "conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society." … In the Court's estimation, Canaan plausibly pleads such extreme and outrageous conduct when evaluating her proposed Amended Complaint in accordance with this standard of review and without the benefit of a full evidentiary record.
Even so, Canaan seeks to re-plead her IIED claim against CMU pursuant to a respondeat superior theory of liability, so the Court must also evaluate the averments in her proposed Amended Complaint to determine whether she pleads sufficient facts in this regard. This time, Canaan asserts that her IIED claim is based upon the conduct committed by Professor Arscott and by a constellation of important, high-level administrators such as CMU's Dean of Students, Chief Diversity Officer and Vice Provost for DEI, Vice President of Student Affairs, and Title IX Coordinator.
As with her Wiretap Act claim, to plead a plausible IIED claim pursuant to a respondeat superior theory, Canaan must allege facts showing that such conduct "'is of a kind and nature that the employee is employed to perform; … occurs substantially within the authorized time and space limits; [and] is actuated, at least in part, by a purpose to serve the employer ….'"
In her initial Complaint, Canaan inadequately pled that such conduct, predominantly committed by Professor Arscott, was "actuated, at least in part, by a purpose to serve the employer." Canaan cures such deficiencies this time by adding many particularized averments about conduct undertaken by several important CMU administrators at times, in places, and of a kind and nature they each are employed to perform, all in service to CMU. Importantly, Canaan alleges additional factual averments concerning Heading-Grant's surreptitious recording of their meeting with Professor Arscott that supports a [respondeat] superior claim for the same reasons described above in relation to the Wiretap Act claim….
Bryce Friedman and Sarah Phillips (Simpson Thacher and Bartlett LLP) and Ziporah Reich (The Lawfare Project) represent plaintiff.
