THE DICKINSON SCHOOL OF LAW OF THE PENNSYLVANIA STATE UNIVERSITY; CARLA PRATT, individually and in her official capacity; MEGAN RIESMEYER, individually and in her official capacity; and, J AMES HOUCK, individually and in his official capacity; Defendants. : : : : : : : : : : : : : : : : : :
Case No. 3:14-cv-01626
J udge Robert D. Mariani
Complaint filed: 08/19/14
Electronically Filed
ANSWER OF DEFENDANTS THE DICKINSON SCHOOL OF LAW OF THE PENNSYLVANIA STATE UNIVERSITY, CARLA PRATT, MEGAN RIESMEYER, AND JAMES HOUCK TO PLAINTIFFS COMPLAINT
I. INTRODUCTION 1. Admitted in part and denied in part. It is admitted that Plaintiff Nicole Suissa (Suissa or Plaintiff) has filed this action alleging a deprivation of her rights. It is denied that said allegations are meritorious. 2. Denied. After reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth of the Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 1 of 41 averments contained in paragraph 2. The same is therefore denied and strict proof thereof demanded. II. JURISDICTION & VENUE 3. Admitted. 4. It is admitted that venue is proper in the Middle District of Pennsylvania. III. THE PARTIES 5. Admitted, upon information and belief. 6. Admitted in part and denied in part. The Dickinson School of Law (DSL) is a law school and college within The Pennsylvania State University (Penn State). DSL is not an entity distinct from Penn State. The Pennsylvania State University is a state-related institution of higher learning that is organized and exists as a non-profit corporation under the laws of the Commonwealth of Pennsylvania. Penn State operates two law school campuses, one of which is located in University Park and the other which is located in Carlisle. 7. Denied. The allegations in paragraph 7 are denied as moot insofar as the parties have stipulated to the dismissal of the Defendant identified as The Dickinson School of Law of The Pennsylvania State University Association. By way of further response, it is believed, and therefore averred, that the proper name of the entity is the Dickinson Law Association and that the Dickinson Law Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 2 of 41 Association is a non-profit entity organized and existing under the laws of the Commonwealth of Pennsylvania. The remainder of the averments of paragraph 7 is denied. 8. Admitted in part and denied in part. It is admitted that Suissa has purported to sue Defendant Carla Pratt (Pratt) individually and in her official capacity. It is denied that Pratt has violated Suissas rights in any way. It is admitted that Pratt maintains an office at DSLs Carlisle campus. 9. Admitted in part and denied in part. It is admitted that Suissa has purported to sue Defendant Megan Riesmeyer (Riesmeyer) individually and in her official capacity. It is denied that Riesmeyer has violated Suissas rights in any way. It is admitted that Riesmeyer maintains an office at DSLs Carlisle campus. 10. Admitted in part and denied in part. It is admitted that Suissa has purported to sue Defendant J ames Houck (Houck) individually and in his official capacity. It is denied that Houck has violated Suissas rights in any way. It is admitted that Houck maintains an office at DSLs University Park campus. IV. FACTUAL ALLEGATIONS 11. Admitted. 12. Admitted in part and denied in part. It is admitted that Suissa completed her first two years of law school. However, Suissa was charged with violating the DSL Honor Code based on conduct that occurred in December 2013 Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 3 of 41 during final examinations. Suissa was charged with violations in connection with her Evidence exam and her Mediation exam. Suissa requested and received an Honor Code proceeding that was initially scheduled for J anuary 31, 2014. Suissa and her attorney requested and received multiple continuances of the Honor Code hearings such that the liability portion of the hearings did not begin until March 29, 2014. Hearings were held on March 29, March 30, April 15, and April 21, 2014. Ms. Suissa was adjudicated to be responsible for two violations of the Honor Code and sanctions were recommended for those violations on April 22, 2014. Suissa appealed the adjudication of responsibility on April 29, 2014. Suissas appeal was denied on J une 27, 2014. Suissa filed the instant action August 19, 2014, one day before the commencement of classes for the Fall 2014 semester. To the extent any of the above is inconsistent with Suissas averments in paragraph 12, said averments are denied and strict proof thereof demanded. 13. Admitted. 14. Admitted. 15. Admitted in part and denied in part. It is admitted that Pratt contacted Suissa on December 19, 2013 to pursue an investigation of the then-alleged Honor Code infraction. It is admitted that Holly Parrish was then the Director of Student Services at DSL and it is further admitted that Ms. Parrish was present for the interview of Suissa. It is further admitted that Pratt received Suissas permission to Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 4 of 41 examine her smartphone. It is denied that Suissa was interrogated. Rather, she was questioned concerning the charges. It is admitted that Pratt took notes of Suissas responses during her questioning of Suissa. 16. Denied. At all times Pratt conducted herself professionally, appropriately, and in full conformity with the express and implied requirements of the Honor Code and her role as the prosecuting or presenting law school official. It is denied that Pratt bore any personal animus towards Suissa. At all relevant times, Pratt pursued the prosecution of the Honor Code violations vigorously, appropriately and professionally both generally and as more specifically addressed hereafter; a. Admitted in part and denied in part. It is denied that Pratt accused Suissa, or that Pratt lacked sufficient evidence to question Suissa based on the report of an Honor Code violation from another student. It is admitted that Suissa voluntarily submitted her cell phone for examination. It is further admitted that Suissas cell phone revealed that the morning of the Evidence exam she had visited websites containing information about the federal rules of evidence; b. Admitted in part and denied in part. It is admitted that Pratt was unable to locate timestamps noting the specific time at which the rules of evidence websites were visited. It is denied that Pratt was obligated to Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 5 of 41 dismiss any charges, or that she intensified her pressure on Suissa. Rather, Pratt vigorously and appropriately pursued the charges. It is admitted that Pratt advised Suissa that she could face expulsion from the law school and that she recommended that Suissa accept responsibility for any violation of the Honor Code. It is admitted that Pratt properly informed Suissa of a potential Honor Code violation relating to Suissas Mediation exam submissions. To the extent this averment expresses or implies that Pratt did not receive a report of an alleged Honor Code violation with respect to the Mediation exam, it is denied. To the contrary, Pratt did receive a verbal report of an Honor Code violation relating to the Mediation exam, which Pratt properly investigated and pursued and which ultimately resulted in the Hearing Board concluding that violations of the Honor Code had, in fact, occurred. To the extent this averment expresses or implies that a written memorandum must be received in order to initiate an Honor Code violation, this allegation is denied. To the contrary, the Honor Code makes clear that an Honor Code violation may be initiated by a written memorandum. Honor Code proceedings may also be commenced by verbal reports; c. Admitted in part and denied in part. To the extent this averment expresses or implies that the submission of a written memorandum is required to initiate an Honor Code investigation, it is denied for the Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 6 of 41 reasons set forth above. It is admitted that Pratt appropriately, pursued an investigation of the verbal report of an Honor Code violation relating to the Mediation exam. It is admitted that Suissa uploaded two different responses to the take home Mediation exam, the first of which was timely and the second of which was not timely. It is further admitted that Suissa, at the time of the Mediation exam, alleged that she had received an error message indicating her exam had not been completely uploaded the first time. It is denied that Suissa ever presented any evidence of said alleged error in support of her defense to the Honor Code violation at the Honor Code proceeding. In fact, Suissa did not testify at her Honor Code hearing. It is admitted that Suissa sent an email to the employee, Linda Evans, who was responsible for receiving the electronic submission of the Mediation exam. It is further admitted that Suissa urged Evans to accept Suissas second submission of her examination as opposed to the first. It is denied that Evans never made any investigation of the situation. To the contrary, Evans reviewed and compared the two submissions and determined that the second, untimely submission contained additional content that had been added after the deadline for the submission of the exam answer, including an additional 129 words and an answer to a previously unanswered examination question; Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 7 of 41 d. Admitted in part and denied in part. As stated above, it is denied that no report regarding the Mediation exam was ever made to Pratt. To the contrary, Evans contacted Pratt regarding the two submissions by Suissa, the emails from Suissa urging acceptance of the second submission, and the additional content that was added to the second submission. It is admitted that Evans was uncertain as to whether the facts supported an Honor Code violation, particularly because Evans had refused to accept the second, untimely, embellished submission. However, Evans was sufficiently concerned with the conduct of Suissa to bring the matter to the attention of Pratt via a verbal report. For the reasons set forth above, it is denied that there was a violation of Section 5.1 of the Honor Code; e. Admitted in part and denied in part. It is denied that Pratt was biased or that there was any absence of evidence regarding the Mediation exam violation. To the contrary, there was plain and undisputed evidence that Suissa made a second submission of her examination that was untimely and contained additional content added after the time of the first submission. It is admitted that Suissa did not testify at her Honor Code hearing. It is admitted that Professor Welsh testified at the Honor Code hearing on behalf of Suissa regarding Professor Welshs understanding of the exam rules. Professor Welshs views were merely her opinion and that opinion was not Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 8 of 41 shared by the members of the Hearing Board, nor by the Appellate Reviewer. It is denied that the Honor Code violation associated with the Mediation exam submission relies in any way, shape or form on the allegations surrounding the Evidence exam violation. To the contrary, the facts relating to the Mediation exam speak for themselves and independently support violations of the Honor Code; f. It is admitted that Pratt expressed her opinion to Suissa and her counsel that the evidence against Suissa was overwhelming and that she did not see how Suissa could avoid expulsion in the face of this evidence. It is denied that Pratt threatened to add additional charges of witness intimidation if Suissa continued to pursue a hearing. It is admitted that Pratt advised that additional charges of witness intimidation would be added to the charge if Suissa continued to engage in behavior that intimidated witnesses whom the law school planned to call to testify against her at the Honor Code hearing. It is denied that Pratt did not have any evidence to support the charge of witness intimidation. To the contrary, Pratt determined after interviewing the witnesses that although there was some evidence of witness intimidation, it was insufficient to warrant bringing an additional charge against Suissa; g. Admitted in part and denied in part. It is admitted that Pratt properly informed Suissa that a finding of an Honor Code violation could Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 9 of 41 result in Suissa facing expulsion from the law school, and that an expulsion from law school could have devastating consequences for the student; it is admitted that Pratt attempted once again to persuade Suissa to accept responsibility for her dishonorable conduct. It is admitted that Pratt, in negotiation with Suissas counsel, agreed to accept less than expulsion as a sanction for Suissas conduct and that Dean Reilly and Pratt agreed to accept either voluntary withdrawal from law school or a two-year suspension. h. Admitted in part and denied in part. It is admitted that the majority of the students who have faced Honor Code violations have accepted responsibility for their actions pursuant to the Honor Code and have received sanctions that reflected their acceptance of responsibility and contrition. Students who accept responsibility for their actions render moot the need for a hearing. Because other students that Pratt had brought honor code charges against had accepted responsibility for their actions rather than proceed to a hearing, this was the first hearing that Pratt had prosecuted under the law schools disciplinary process; i. Denied. It is denied that Pratt attempted to intimidate Suissa or that Pratt disseminated any defamatory information about Suissa within the law school community. Pratt communicated with the Dean and Senior Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 10 of 41 Associate Dean regarding the disciplinary matter affecting Suissa, as she was obliged to do. It is believed, and therefore averred, that it was Suissa who spoke about the Honor Code proceedings at length to members of the law school community. It is admitted that it was necessary for Pratt to inform Professors Mogill and Welsh about the charges in order to investigate the charges and to present their testimony. It is denied that Pratt attempted to dissuade Welsh from testifying; j. Denied. It is denied that Pratt disseminated information about Suissas case beyond those who had a legitimate need to know in connection with the investigative and prosecutorial functions of the Honor Code. It is denied that Suissas case was discussed in Professor Terrys Legal Ethics Course; k. Denied. It is denied that Suissa has been defamed by Pratt or any other Defendant. With regard to the allegation that Suissa has suffered damage to her reputation within the law school community, this allegation is denied in that, after reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief thereon. By way of further response, to the extent Suissa has suffered damage to her reputation, it is believed and therefore averred that said damage has been caused by the actions or omissions of Suissa, and not by Defendants. Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 11 of 41 17. Denied. It is denied that Pratt attempted to intimidate Suissa or that Pratt attempted to dissuade Suissa from seeking legal counsel. 18. 19. Admitted in part and denied in part. It is admitted that Pratt appropriately sent Suissa a letter advising her of the charges of violating the Honor Code and that the letter was dated J anuary 6, 2014. That letter, being a written instrument, speaks for itself and any expression or implication inconsistent therewith is denied. To the extent this paragraph expresses or implies that it was inappropriate to copy Defendant Houck on the letter, this allegation is denied. 20. Admitted in part and denied in part. It is admitted that Suissa informed Pratt on J anuary 17, 2004 that Suissa wanted to proceed to a hearing on her Honor Code charges. Said J anuary 17, 2004 letter, being a written instrument, speaks for itself, and any expression or implication inconsistent therewith is denied. Additionally, it is admitted that Exhibit 2 to Suissas Complaint appears to be a true and correct copy of the applicable law school Honor Code. Said Code, being a written instrument, speaks for itself and any expression or implication inconsistent therewith is denied. With regard to Suissas representation that all of the information requested within her J anuary 17, 2004 letter was in the exclusive possession of the law school, said allegation is denied in that, after reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief thereon. The same is therefore denied and strict proof Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 12 of 41 thereof demanded. By way of further response, nothing within the Honor Code affords an accused student the rights to discovery in the civil litigation sense. The Honor Code proceeding is an academic proceeding. It is not civil litigation. 21. Admitted in part and denied in part. The Honor Code, being in writing, speaks for itself and any expression or implication inconsistent therewith is denied. It is admitted that the Honor Code provides that the accused student has the right to receive all evidence including exculpatory evidence at least one week prior to the hearing. The Honor Code does not provide accused student discovery rights. Pratt provided Suissa with all evidence to which she was entitled under the Honor Code. It is denied that two of the law schools witnesses testified that Pratt took notes during Pratts meeting with them. 22. Denied. It is denied that Pratt tried to assassinate Suissas character. To the contrary, Pratt did not call any character witnesses in her prosecution case, and offered to stipulate that, prior to the misconduct at issue, Suissa was generally regarded as a having good character. Pratt also agreed to allow Suissa to present numerous character witnesses via pre-recorded video and further agreed to waive the law schools right to cross examine these witnesses in the Honor Code hearing. 23. Denied. It is denied that there were due process denials or failures to adhere to the Honor Code, or that there was a pattern thereof. With respect to the Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 13 of 41 claim that Suissa has suffered irreparable damage, these allegations are denied in that, after reasonable investigation, Answering Defendants are without knowledge or information sufficient to form a belief as to the truth thereof. The same are therefore denied and strict proof thereof demanded. With regard to Plaintiffs contention that the Hearing Board was given a packet of Pratts evidence before the hearing, it should be noted that in accordance with the Honor Code rules, the exhibit binders were provided to the Hearing Board and to Suissa and her counsel a short time before the original hearing was scheduled to occur. The original hearing did not occur as scheduled because Suissa requested serial continuances, which requests were granted. Furthermore, on February 27, 2014 Pratt provided Suissas counsel with a summary of each witness she intended to call as well as the material information she expected to elicit from those witnesses. Suissa and her attorneys had the exhibit binder and the witness names and testimonial summaries well in advance of the hearing. 24. Denied. It is denied that Pratt or any other Defendant interfered with the investigative or adjudicative processes or that the Honor Code proceedings were compromised in any way. To the contrary, Pratt and all other Defendants conducted the Honor Code proceedings reasonably and appropriately generally and as more specifically set forth below. Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 14 of 41 a. Admitted in part and denied in part. It is denied that Suissa was in any prevented from confronting her accusers. To the contrary, Suissa was represented by counsel of her choosing, provided notice of all evidence and witnesses supporting the prosecutors case well in advance of the hearing, and afforded a full and fair opportunity to cross-examine all witnesses following direct examination by Pratt. It is admitted that a no contact order was issued preventing Suissa from contacting the witnesses before the hearing. However, the no contact order was a standard and appropriate measure under the circumstances and did not prevent Ms. Suissas counsel from contacting witnesses before the hearing. It is believed, and therefore averred, that Suissas counsel did contact witnesses before the hearing. By way of further response, it is admitted that Pratt contacted individuals who were likely to be witnesses as part of her investigation and prosecution of the case, which is entirely appropriate. It is denied that Pratt attempted to dissuade any witness from testifying; b. Admitted in part and denied in part. It is denied that Pratt engaged in any non-disclosure or that key witnesses were not identified. It is admitted that Suissa, through her various attorneys, exercised Suissas rights to challenge a board member for cause pursuant to the Honor Code and that challenge was sustained and the board member was removed and Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 15 of 41 replaced with an alternate. It is further denied that the student identified as the reporting student was not, in fact, the student who reported observing a possible Honor Code violation by Suissa. To the contrary, the student was indeed the reporting student and was the eyewitness to the events in question regarding the Evidence exam charges. The student was properly identified and disclosed to Suissa; c. Admitted in part and denied in part. It is admitted that Pratt vigorously pursued prosecution of the Honor Code violations against Suissa, which is her responsibility as Associate Dean and Prosecutor. It is further admitted that this investigation included an interview of a student who was, until he provided testimony unfavorable to Suissa, known to be Suissas boyfriend. It is further averred that this student had important and relevant evidence to share regarding the violation, but was reluctant to do so due to his then-close relationship with Suissa. It is admitted that the student was upset with the prospect of sharing information with Pratt that was inculpatory towards Suissa and that he would have preferred to not have done so. It is further admitted that Pratt properly apprised this student of his potential exposure to Honor Code violations if he failed to respond truthfully in response to questions posed by Pratt regarding the Honor Code violations. Pratt recommended that this individual consult with independent counsel of Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 16 of 41 his own choosing prior to determining whether or not to reveal information to Pratt. Following that consultation, the individual voluntarily returned to Pratts office and related the inculpatory information with Pratt. The information at issue pertained solely to the Evidence exam charges; d. Admitted in part and denied in part. In order to meaningfully question the student who had been Suissas boyfriend, it was necessary for Pratt to share very general information about the then-accusations against Suissa. However, Pratt was careful not to disclose specific details about the accusation so as to avoid influencing or affecting the students recollection. Moreover, as a student over the age of 18, it was appropriate for Pratt to avoid sharing FERPA-protected information with Suissas mother absent an appropriate waiver on file. Suissa, at all times, was free to share information with her mother. e. Denied. It is denied that Pratt ever attempted to prejudice the hearing board. Pratt requested security for the hearing after receiving a number of visits from student witnesses expressing concern about security and asking if security would be present; and after receiving a hostile telephone call from a woman representing herself as Suissas mother who planned to attend the hearing. The arrangement for security neither prejudiced the board nor impacted the proceedings adversely in any way. It Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 17 of 41 was entirely consistent with the duty of Penn State to take reasonable precautions to provide for the safety of its law school community, including the hearing members and the hearing participants to arrange for security under the circumstances; f. Denied. It is denied that Pratt had any obligation to drop the Evidence exam charges against Suissa. It is further denied that exculpatory evidence surfaced. Rather, the time clock for the video recording device had not been reset in some time and was not calibrated to actual time at the time of recording Suissas hallway movements during the Evidence exam. When the time, as shown on the video recorder, was synchronized to actual time, the video footage showed Suissa entering the restroom precisely during the time that the other law school records showed WiFi access by Suissas cell phone. Once the recorder time was synchronized with actual time, the video evidence was inculpatory, not exculpatory. Further, all of the above- referenced evidence pertains to the Evidence exam charges, which charges were not found by the Honor Board to have been proven by clear and convincing evidence; g. Admitted in part and denied in part. It is admitted that Plaintiffs counsel requested a copy of a hearing transcript. It is denied that the University was, or is presently, in possession of a transcript from the Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 18 of 41 hearing. Rather, the hearing was videotaped but not transcribed. Suissa was invited to view the videotape in order to prepare her appeal, consistent with University policy. 25. Denied. As stated above, there was no transcript of the testimony provided at the hearing. Moreover, Suissa was offered full access to the video, and it is believed that Suissa and her attorneys did review the video. 26. Denied. Suissa was provided a fair and impartial tribunal through which she was afforded full opportunity to dispute the charges against her. The Hearing Board did not find the Evidence exam charges to have been proven, but did find Suissa responsible for two Honor Code violations related to the Mediation exam. The faculty Honor Code committee members, as per longstanding policy and practice, were appointed by the Dean at the beginning of the academic year, in this case, the faculty committee members were appointed in Fall semester, 2013. The Student Honor Code Committee members, per policy and practice, were chosen via a student election held in the Spring, and the elected students serve for the following academic year. The Student Honor Code Committee members, in this case, were elected in Spring 2013, for service in Fall 2013 and Spring 2014. Regarding the mechanism for selection of student and faculty committee members for service in Ms. Suissas hearing, customary practices were followed. The Student Chair of the Honor Committee selects students to serve based on their Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 19 of 41 availability and the Associate Dean asks faculty members to serve based on their availability. The Honor Code afforded Suissa the right to challenge any Board member. (Honor Code, 3.1.C). At no time did Suissa seek to dismiss any student or faculty Honor Committee member based on alleged animus or bias against Suissa. It is denied that the rules provided for Suissa or her counsel to participate in the selection of the Hearing Board members. It is denied that the chosen Board was biased or partial or that Suissa ever alleged that a Board member was biased or impartial during the proceedings. 27. Denied. At all relevant times, Suissa received full due process rights which comported in all respects with internal rules and regulations and with state and federal constitutional parameters. The Board was neutral and unbiased and thoughtfully and appropriately considered the case. No objection or request to dismiss any Board member for bias or impartiality was ever made by Suissa. 28. Denied. It is denied that Riesmeyer was biased in favor of Pratt or that her rulings were fundamentally confounding. It is further denied that Suissa was in any way limited from exercising her rights regarding witnesses and evidence that were afforded under the Honor Code. To the contrary, Suissa was afforded full and complete due process rights generally, and as more specifically set forth below: 1. Precluding Plaintiff from Cross Examining Witnesses Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 20 of 41 a. Denied. Pratt did identify and present the reporting eyewitness. It is admitted that Pratt opposed a request for yet another continuance of the hearing, and that Suissas request for a third continuance was denied. Prior to that instance of Suissas continuance request being denied, Suissa had been granted two (2) prior continuance requests, which resulted in the hearing, which was originally scheduled to occur on J anuary 31, 2014, to be delayed until April 2014. Further, the witnesses at issue in this averment were only relevant with respect to the Evidence exam charges and not with respect to the Mediation exam charges. Moreover, Suissa never attempted to call the challenged and dismissed Honor Board member as a witness at the hearing; b. Denied. Suissa, through her counsel, did question Dean Gardner at length and was not prevented or limited in doing so. Further, it is denied that Dean Gardner was proffered as an expert in Evidence or for the purpose of analyzing the contents of Suissas Evidence exam. Pratt asked Gardner no questions about the content of the Evidence exam. To the contrary, Gardner was questioned only about technology issues relating to when Suissa was actively typing answers and when she was not during the Evidence exam. This averment also deals solely with the charges relating to the Evidence exam; Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 21 of 41 c. Denied. It is denied that the rulings relative to Mr. McGeorges testimony resulted in a due process violation. Suissas counsel was afforded a meaningful opportunity to cross Mr. McGeorge regarding his direct examination. The Honor Code specifically affords the Hearing Board the right to reconvene to ask additional questions of witnesses, which right it exercised. Further, the testimony and evidence at issue in this averment involve only the Evidence exam charges; 2. Demonstrated Bias and Impropriety Throughout the Hearing and Appeal Processes
a. Denied. Riesmeyer properly served as an impartial and independent Board President. At appropriate times, Riesmeyer sought input from counsel for Suissa and from Pratt. Then, she would rule on the matter issue. This is standard behavior for an impartial adjudicator; b. Denied. It is denied that Riesmeyer deferred to Pratt throughout the pre-trial conference. To the contrary, Riesmeyer heard input from both sides on disputed issues and made good faith rulings; c. Admitted in part and denied in part. It is admitted that Pratt prosecuted the charges. It is denied that Riesmeyer having been copied on emails from Pratt periodically through the process was improper or otherwise deleteriously affected the fundamental due process that Suissa was afforded. Counsel for Suissa was also copied on emails regarding the Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 22 of 41 matter. It is admitted that Pratt provided to Plaintiff the evidence supporting the Honor Code violations charges, as she was obligated to do under the Honor Code. It is admitted that Pratt declined to allow Suissa to engage in unlimited discovery, as the Honor Code does not entitle the accused to engage in unlimited discovery. Suissa was provided with notice of all evidence that was being relied upon by Pratt more than one week before the hearing, as required by the Honor Code; d. Denied. Pratt and Riesmeyer had one conversation prior to the hearing which related to Riesmeyer agreeing to serve as the President of the Hearing Board. Riesmeyer and Pratt did not further communicate regarding the hearing except to discuss the time of the hearing. Riesmeyer did not have any conversations with Pratt about the substance of the evidence supporting the violations prior to the hearing, and had no ex parte communications with Pratt after the hearing began; e. Denied. To the best of Riesmeyers knowledge, Pratt provided to Suissas counsel all evidence that she was required to provide by Section 3.1 of the Code; f. Admitted in part and denied in part. It is admitted that Pratt made a statement relating to Suissas appellate review rights. However, Riesmeyer ruled on all evidentiary objections in good faith at the time the Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 23 of 41 objections were made. Suissas counsel routinely followed adverse rulings with lengthy arguments about why he disagreed with the rulings, and did so in the presence of the full Honor Board; g. Denied. The Honor Code states that an individual may report a violation by submitting a memorandum to the Associate Dean. However, the Honor Code does not require a written memorandum as an exclusive mechanism for reporting Honor Code violations. Historically, violations have routinely been initiated based on verbal reports of perceived misconduct; h. Admitted in part and denied in part. It is admitted that Riesmeyer advised Suissas counsel as to the status of the dismissed and proven charges. It is denied that Riesmeyer denied the motion for reconsideration without hearing or considering the merits of the motion. Rather, Suissas counsel discussed the anticipated motion for reconsideration and the basis for same in a conversation involving Riesmeyer, Suissas counsel, and Pratt that occurred at the conclusion of the March 30 hearing day, before the motion was formally made by Suissas counsel. Riesmeyer and the Board discussed the anticipated motion for reconsideration for over an hour and concluded that it would not be granted when or if made. When Suissas counsel later made the motion for reconsideration on the record Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 24 of 41 during the April 15, 2014 hearing day, the decision to deny the motion based on the previously-referenced deliberation was communicated to Suissas counsel; i. Admitted in part and denied in part. It is admitted that Suissas counsel requested 10 years worth of disposition reports. It is admitted that Suissas counsel received two years worth of the most recent disposition reports as opposed to the 10 years that was requested. It is admitted that disposition reports must be published pursuant to Chapter 8 of the Honor Code. It is denied that the one case referenced by Suissa at the sanctions hearing was analogous to Suissas case. Rather, the case referenced by Suissa involved a student who accepted responsibility for the Honor Code violation, unlike Suissa; j. Admitted in part and denied in part. The sanctions recommended by the Honor Committee, being in writing, and contained within the email dated April 22, 2014, speak for themselves, and any expression or implication inconsistent therewith is denied; k. Admitted; l. m. Admitted in part and denied in part. It is admitted that after receiving Suissas counsels letter of appeal dated April 29, 2014, Houck asked Pratt and Riesmeyer to provide a response to same. Houck advised counsel for Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 25 of 41 Suissa of the fact of the letters and invited counsel for Suissa to review them via an email dated May 30, 2014. It is denied that there was anything inappropriate or improper about allowing the individuals accused of improprieties the opportunity to respond to same, or in allowing Suissa and her counsel the opportunity to review those responses; n. Admitted in part and denied in part. It is admitted that Suissa and her counsel were told they could not make copies. It is denied that Suissa and her counsel were supervised while reviewing Pratts and Riesmeyers letter. Rather, they were alone in the room reviewing the letters; o. Admitted in part and denied in part. It is admitted that information was redacted. The information that was redacted involved other students education records and was redacted in order to comply with the requirements of the FERPA. These minor redactions did not materially affect Suissas ability to meaningfully review the letters; p. Denied. This allegation appears to be an expression of Plaintiffs counsels opinion, to which no responsive pleading is required. By way of further response, since Pratt and Riesmeyer both saw and heard the same things during the hearing, it should come as no surprise to Suissa or her counsel that their recollections were similar; Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 26 of 41 q. r. Denied. It is denied that Riesmeyer was biased in the process or that she overlooked or refused relevant evidence in considering sanctioning. To the contrary, the Board reviewed the evidence and the prior sanctions information and developed its own views as to what sanction it felt appropriately addressed the violations committed by Suissa. Riesmeyers letter indicated that the Board specifically emphasized its concern that Suissa failed to accept or acknowledge responsibility for her misconduct. While the Board saw fit to call attention to this point, it nevertheless properly considered all applicable criteria; s. Denied. It is denied that Suissas sanctions were unusually severe. The remainder of the averment appears to be a statement of Plaintiffs counsels opinion regarding the evidence presented below, which opinion was not shared by the Hearing Board. Defendants do not believe Suissas counsels opinions require a response, but to the extent a response is required, it is denied that Suissas counsels opinions are accurate or reasonable; t. Denied. It is denied there were any material departures from the mandates of the Honor Code. To the contrary, the Honor Code was followed in spirit and in substance. It is believed, and therefore averred, that it is the result attained to which Suissa takes issue. Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 27 of 41 29. 30. Admitted in part and denied in part. Defendant Houcks letter of J une 27, 2014 to Suissa, being in writing, speaks for itself and any expression or implication inconsistent therewith is denied. 31. Denied. It is denied that Houck revoked Suissas certification, or that the revocation was in retaliation for her appeal of the Board findings. To the contrary, the sponsoring attorney(s) who submit certificate(s) on behalf of students have a professional obligation to withdraw the certification if they became aware of facts and circumstances that render the averments made in the certification no longer true. That is precisely what happened when Plaintiff was adjudicated to be in violation of the Honor Code and that adjudication was upheld on appeal. 32. 33. Denied. As a result of Suissas misconduct and her adjudication of responsibility by the Honor Board, it was necessary to revoke the Certificate. The downstream consequences that ensued were the result of Suissas conduct alone. 34. Denied. Suissas suspension, which has now been deferred until the Spring 2015 semester to allow for the presentation of Suissas Motion for Preliminary Injunction in the instant action, resulted from Suissas misconduct, and not from Defendants conduct. 35. Denied. Upon information and belief, Suissa still has available to her scholarship and financial aid monies as of the time for the Fall 2014 academic Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 28 of 41 semester. 36. Admitted in part and denied in part. It is denied that Houck advised the Pennsylvania courts that Suissa no longer possesses good character as averred. Defendants incorporate herein by reference their response to paragraph 31 above. Regarding the ultimate effect of the adjudication of responsibility for the Honor Code violation on Suissas ability to sit for the bar exam or to be admitted into the bar after graduation, that effect is unknown. This will be a matter for the bar examiners of the jurisdiction(s) in which Suissa intends to apply to determine. 37. Admitted in part and denied in part. It is admitted that Suissa has important interests at stake in connection with the Honor Code proceeding. The same is true for Defendants. However, the responsibility for the downstream effects of the Honor Code violation lies with Suissa and arises from her underlying misconduct, which resulted in the adjudication of responsibility generally and as more specifically set forth below. a. Denied. Suissa has been permitted to continue her law school education for the Fall 2014 semester while the instant dispute is addressed via a Motion for Preliminary Injunction; however, she will be suspended for the Spring 2015 semester absent a valid Court Order to the contrary; b. Admitted in part and denied in part. It is admitted that Suissa may potentially face the loss of financial resources in the Spring of 2015. It Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 29 of 41 is denied that she faces a loss of financial resources presently in the Fall of 2014. As to the averments that Suissa could not return to law school due to a lack of financial resources, Defendants are, after reasonable investigation, without knowledge or information sufficient to form a belief thereon. The same are therefore denied and strict proof thereof demanded; c. Denied. It is denied that Houck communicated to the Pennsylvania courts as averred. Defendants incorporate their response to paragraph 31, above, inclusive. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to whether Suissas adjudication of responsibility for the Honor Code violations will adversely impact her ability to practice law; d. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief thereon and the same are therefore denied and strict proof thereof demanded; e. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief thereon and the same are therefore denied and strict proof thereof demanded. By way of further response, Defendants have not disseminated the facts of the underlying Honor Code proceeding nor have they disseminated the result of the underlying proceeding in any way connected to Plaintiffs name. That Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 30 of 41 Plaintiff has chosen to do so with her publicly available Complaint and Motion filed in this action or otherwise is clearly her right, but that publication cannot be ascribed to Defendants; f. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief thereon and the same are therefore denied and strict proof thereof demanded. 38. Admitted in part and denied in part. It is admitted that The Pennsylvania State University is, pursuant to applicable authority, considered to be a state actor for the purposes of claims arising under Section 1983. It is further admitted that Defendants Pratt, Riesmeyer and Houck, with respect to the conduct that has been placed at issue by Plaintiffs pleadings, were acting within the course and scope of their employment for Defendant Penn State. To the extent there are additional implied averments within this allegation, Defendant is, after reasonable investigation, without knowledge or information sufficient to form a belief thereon and the same are therefore denied and strict proof thereof demanded. COUNTI Violation of Due Process Rights Under Fourteenth Amendment (42 U.S.C. 1983) Plaintiff v. All Named Defendants
39. Answering Defendants incorporate their answers to paragraphs 1 through 38, inclusive. Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 31 of 41 40. Denied. It is denied that Defendants denied Suissa her constitutional right to due process of law in connection with the Honor Code violations. To the contrary, at all times material and relevant hereto, Plaintiff was fully afforded all due process rights to which she was legally entitled and in fact received far more process than the Constitution requires generally and as more specifically set forth below: a. Denied. Plaintiff received a fair and impartial hearing process; b. Denied. The Honor Code was substantially complied with in all material regards; c. Denied. The hearing and appeal process was fair and appropriate; d. Denied. Plaintiff received a fair and impartial hearing and it is denied that Riesmeyer supported Pratt as alleged. 41. Denied. Suissa received all due process to which she was legally entitled and indeed received more process than was constitutionally required. 42. Admitted in part and denied in part. It is admitted that Plaintiff may suffer some adverse impact from the imposition of the sanctions imposed upon her. As to that extent of the alleged harm, insofar as most of the alleged harm has not yet and may never materialize, this allegation is denied in that after reasonable investigation, Defendants are without sufficient information to form a belief as to Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 32 of 41 the truth of this allegation. It is denied that any harm or injuries has been caused by the actions of any of the Defendants. To the contrary, it has been Plaintiffs own misconduct that has caused any alleged harm or injuries. WHEREFORE, Defendants request that this Honorable Court enter an appropriate Order declaring that: (a) Plaintiff received all due process to which she was constitutionally due; (b) Denying and dismissing Plaintiffs request for injunctive relief with prejudice; (c) Denying and dismissing Plaintiffs Complaint, with prejudice; (d) Entering judgment in favor of Defendants and against Plaintiff; (e) Awarding Defendants all reasonable monetary relief to which they may be entitled, including attorneys fees, interest, costs of this suit, and such other relief as may be just and appropriate. COUNT II Breach of Contract (42 U.S.C. 1983) Plaintiff v. The Dickinson School of Law of the Pennsylvania State University and The Dickinson School of Law of the Pennsylvania State University Association
43. Answering Defendants incorporate their answers to paragraphs 1 through 42, inclusive. 44. 45. Denied. At all times, Penn State substantially complied with the terms of any enforceable contracts between it and Suissa. Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 33 of 41 46. Denied. It is denied that Defendants failed to follow any applicable procedural requirements. It is further denied that Plaintiff was improperly found to have violated the Honor Code or that any conduct of Defendants caused any damages to Plaintiff. To the contrary, any harm that Plaintiff may prove was caused by her own misconduct. WHEREFORE, Defendants request that this Honorable Court enter an appropriate Order declaring that: (a) Plaintiff received all due process to which she was constitutionally due; (b) Denying and dismissing Plaintiffs request for injunctive relief with prejudice; (c) Denying and dismissing Plaintiffs Complaint, with prejudice; (d) Entering judgment in favor of Defendants and against Plaintiff; (e) Awarding Defendants all reasonable monetary relief to which they may be entitled, including attorneys fees, interest, costs of this suit, and such other relief as may be just and appropriate. COUNT III Violation of Constitutional Rights Under Fourteenth Amendment (42 U.S.C. 1983) Plaintiff v. Pratt, Riesmeyer and Houck (in their individual capacities)
47. Answering Defendants incorporate their answers to paragraphs 1 through 46, inclusive. 48. Denied. At all times Defendants acted in a manner that was professional, reasonable, appropriate and that fully afforded Plaintiff all due Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 34 of 41 process rights to which she was constitutionally due. Defendants in no way impeded or impaired Plaintiffs rights under the Fourteenth Amendment. Furthermore, even assuming without accepting that Plaintiff has suffered harm to her reputation, it is denied that the harm suffered, if any, was caused by the conduct of Defendants. Rather, it is believed and therefore averred that the harm to Plaintiffs reputation, if any, was caused by the misconduct of Plaintiff. 49. Denied. The averments of paragraph 49 constitute a conclusion of law to which no responsive pleading is required. To the contrary, the individual Defendants are entitled to immunity, qualified or otherwise, in this case. 50. Denied. It is denied that Defendants conduct caused Plaintiff any harm. To the contrary, to the extent Plaintiff has suffered injuries and damages arising from the Honor Code proceedings and/or sanctions, those injuries and damages have been the consequence of Plaintiffs misconduct and do not result from any actionable conduct on the part of the Defendants. WHEREFORE, Defendants request that this Honorable Court enter an appropriate Order declaring that: (a) Plaintiff received all due process to which she was constitutionally due; (b) Denying and dismissing Plaintiffs request for injunctive relief with prejudice; (c) Denying and dismissing Plaintiffs Complaint, with prejudice; (d) Entering judgment in favor of Defendants and against Plaintiff; (e) Awarding Defendants all reasonable monetary relief to which they may be Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 35 of 41 entitled, including attorneys fees, interest, costs of this suit, and such other relief as may be just and appropriate. AFFIRMATIVE DEFENSES 51. Defendants incorporate herein by reference its responses to Paragraphs 1 through 50 of its Answer as though set forth at length herein. 52. Plaintiffs Complaint fails, in whole or in part, to state a claim upon which relief can be granted. 53. Plaintiffs Complaint is barred, in whole or in part, by the applicable statute of limitations and/or timeliness. 54. Plaintiffs Complaint is barred, in whole or in part, by Plaintiffs failure to exhaust administrative remedies. 55. Plaintiffs Complaint is barred, in whole or in part, by the doctrines of waiver, estoppel, and/or laches. 56. Plaintiffs claims are barred in whole or in part by the doctrine of unclean hands. 57. Plaintiffs Complaint fails, in whole or in part, to establish a right to trial by jury. 58. Plaintiffs claims are subject to all limitations on damages available under the relevant statutes and other provisions of law, including failure to mitigate. Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 36 of 41 59. Plaintiffs Complaint fails, in whole or in part, because Plaintiffs conduct has been the superseding causal factor in any harm Plaintiff has suffered relating to the Defendants challenged conduct. 60. Plaintiffs Complaint fails, in whole or in part, because she lacks the constitutional right to the additional process she seeks and/or because the process provided to Plaintiff was constitutionally adequate and she suffered no actionable deprivation of rights. 61. Plaintiffs Complaint fails to identify a federal basis for jurisdiction over her claims based on Pennsylvania law, and/or for jurisprudential considerations, this Court should properly abstain from addressing Plaintiffs constitutional claims until Plaintiff has exhausted her adequate state law remedies. 62. Plaintiffs Complaint is barred, in whole or in part, by the doctrines of absolute immunity, qualified immunity, or conditional immunity. 63. Plaintiffs Complaint is barred, in whole or in part, by the doctrines of absolute or conditional privilege and/or justification. 64. Plaintiffs Complaint is barred, in whole or in part, by the doctrines of abstention, preemption and/or preclusion. 65. Plaintiffs claims are barred in whole or in part by the doctrines of license and/or sound contractual basis. Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 37 of 41 66. Plaintiffs claims based upon alleged deficiencies in the Evidence exam charges are moot due to the dismissal of those charges. 67. Plaintiffs claims are barred in whole or in part by the absence of irreparable harm and/or by the availability of an adequate remedy at law. 68. Defendants reserve the right to assert additional Affirmative Defenses as this matter moves forward. WHEREFORE, Defendants request that this Honorable Court enter an appropriate Order declaring that: (a) Plaintiff received all due process to which she was constitutionally due; (b) Denying and dismissing Plaintiffs request for injunctive relief with prejudice; (c) Denying and dismissing Plaintiffs Complaint, with prejudice; (d) Entering judgment in favor of Defendants and against Plaintiff; (e) Awarding Defendants all reasonable monetary relief to which they may be entitled, including attorneys fees, interest, costs of this suit, and such other relief as may be just and appropriate. Respectfully submitted, McQUAIDE BLASKO, INC. Dated: September 10, 2014 By: s/J ohn A. Snyder J ohn A. Snyder, Esquire I.D. No. 66295 jasnyder@mqblaw.com J aime S. Bumbarger, Esquire I.D. No. 308708 jsbumbarger@mqblaw.com 811 University Drive Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 38 of 41 State College, PA 16801 Phone: (814) 238-4926 Fax: (814) 234-5620
Attorneys for Defendants The Dickinson School of Law of The Pennsylvania State University, Carla Pratt, Megan Riesmeyer, and J ames Houck Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 39 of 41 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NICOLE SUISSA, Plaintiff, vs.
THE DICKINSON SCHOOL OF LAW OF THE PENNSYLVANIA STATE UNIVERSITY; CARLA PRATT, individually and in her official capacity; MEGAN RIESMEYER, individual and in her official capacity; and, J AMES HOUCK, individually and in his official capacity; Defendants. : : : : : : : : : : : : : :
Case No. 3:14-cv-01626
J udge Robert D. Mariani
Complaint filed: 08/19/14
Electronically Filed
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Answer of Defendants The Dickinson School of Law of The Pennsylvania State University, Carla Pratt, Megan Riesmeyer, and J ames Houck to Plaintiffs Complaint in the above-captioned matter was served this 10 th day of September, 2014, upon the attorney of record via U.S. Mail and ECF as follows:
J . Edward Bell, esquire Bell Legal Group, LLC 219 Ridge Street Georgetown, SC 29440 (843) 546-2408 ebell@edbelllaw.com (for Suissa) J . Dwight Yoder, Esquire Gibbel Kraybill & Hess LLP 41 East Orange Street Lancaster, PA 17602 (717) 291-1700 dyoder@gkh.com (Local Atty for Suissa)
Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 40 of 41
McQUAIDE BLASKO, INC.
By: s/J ohn A. Snyder J ohn A. Snyder, Esquire I.D. No. 66295 jasnyder@mqblaw.com J aime S. Bumbarger, Esquire I.D. No. 308708 jsbumbarger@mqblaw.com 811 University Drive State College, PA 16801 Phone: (814) 238-4926 Fax: (814) 234-5620
Attorneys for Defendants The Dickinson School of Law of The Pennsylvania State University, Carla Pratt, Megan Riesmeyer, and J ames Houck
Case 3:14-cv-01626-RDM Document 29 Filed 09/10/14 Page 41 of 41
ADAMSON UNIVERSITY FACULTY AND EMPLOYEES UNION, Represented by Its President, and ORESTES DELOS REYES vs. ADAMSON UNIVERSITY (G.R. No. 227070. March 9, 2020)
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