United States Court of Appeals
For the First Circuit
No. 07-1695
DAVID FIACCO,
Plaintiff, Appellant,
v.
SIGMA ALPHA EPSILON FRATERNITY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Stahl, Senior Circuit Judge.
Bernard J. Kubetz, with whom Michael R. Clisham and Eaton
Peabody were on brief, for appellant.
Catherine R. Connors, with whom Peter W. Culley, Eric J.
Wycoff, and Pierce Atwood LLP were on brief, for appellee.
June 13, 2008
TORRUELLA, Circuit Judge. David Fiacco brought suit
against the national fraternity Sigma Alpha Epsilon ("SAE")
alleging that members of its Maine chapter ("Maine Alpha")
intentionally caused him psychological harm by exposing his past
legal troubles to his employer and two local newspapers. The
district court granted SAE summary judgment on Fiacco’s intentional
infliction of emotional distress claim, and Fiacco now contests
this order. After careful review, we affirm.
I. Background
This action is an appeal from a grant of summary
judgment, therefore we recite the facts in the light most favorable
to Fiacco as non-movant. See, e.g., Franceschi v. U.S. Dep't of
Veterans Affairs, 514 F.3d 81, 84 (1st Cir. 2008). Fiacco was the
Director of the Office of Community Standards, Rights and
Responsibilities ("Office of Community Standards") at the
University of Maine at Orono ("UMO"). In this capacity, Fiacco
oversaw the student discipline process at UMO: he reviewed
allegations of misconduct; assigned case managers to handle
grievances; referred cases to UMO administrators or the Conduct
Committee for adjudication; and occasionally adjudicated cases
himself, subject to review by the Conduct Committee. Fiacco also
developed policy statements concerning the student code of conduct
and his office, and he answered questions on such matters from
members of the UMO community.
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In 2002, Fiacco's office started investigating Maine
Alpha for misconduct. In response, a group of current and former
Maine Alpha members led by Jay Sexton (collectively, "the Sexton
Group") hired a private investigator to uncover evidence of any
bias Fiacco might hold against SAE or fraternities in general. The
investigator found several court records and newspaper articles
dating back to Fiacco's college years. Those documents revealed
Fiacco's past involvement in two legal proceedings: a conviction
for Driving While Ability Impaired ("DWAI") that resulted in his
departure from the post of Director of Public Safety at Fort Lewis
College in Colorado, and a temporary restraining order secured
against him by a former girlfriend. The documents gave no
indication that Fiacco was biased against fraternities or, in
particular, SAE.
The Sexton Group made copies of these documents and
assembled them into packages containing the following unsigned
memorandum:
Enclosed please find newspaper articles
and court documents detailing Mr. Fiacco's
previous legal difficulties: DWI, Sexual
harassment, and Domestic Violence. Is this
honestly the best qualified candidate the
University of Maine could find for the Office
of Judicial Affairs?
The packages were addressed to the University of Maine System Board
of Trustees, UMO President Peter S. Hoff, several UMO deans and two
local newspapers, the Bangor Daily News and The Maine Campus. They
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were placed in a box and mailed to a Maine Alpha alumnus in
Colorado, who then anonymously sent the packages to the intended
recipients.
Fiacco asserts that the disclosure of this information
and the surreptitious manner in which it was disseminated caused
him great distress. As a result he became depressed and withdrawn,
and his concentration and work performance suffered. He also
experienced bouts of insomnia, nightmares, and teeth-grinding, and
had to obtain psychological counseling.
On September 19, 2005, Fiacco brought suit against SAE
asserting, inter alia, intentional infliction of emotional distress
("IIED"). Federal subject-matter jurisdiction was established
through the diversity of the parties' citizenship. On October 12,
2006, SAE moved for summary judgment and -- with the benefit of
extensive discovery, oral argument, and additional briefing -- the
district court granted this motion on April 5, 2007. The district
court found that Fiacco was both a public official and a limited-
purpose public figure; hence Fiacco's IIED claim failed because he
was unable to prove that the memorandum included in the Sexton
Group's packages contained a statement of fact made with actual
malice. See Fiacco v. Sigma Alpha Epsilon Fraternity, 484 F. Supp.
2d 158, 175 (D. Me. 2007).1 Fiacco now appeals.
1
For the purpose of summary judgment the district court chose not
to draw a distinction between SAE, the national fraternity, and the
Sexton Group or Maine Alpha. In this opinion we do likewise.
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II. Discussion
A. Standard of Review
Summary judgment is appropriate when the record shows
that "there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(c). We review the grant of such a motion de novo. GTE
Wireless, Inc. v. Cellexis Int'l, Inc., 341 F.3d 1, 4 (1st Cir.
2003). In doing so, we are obliged to "view the entire record in
the light most hospitable to the party opposing summary judgment,
indulging all reasonable inferences in that party's favor."
Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990).
Nonetheless, we ignore "'conclusory allegations, improbable
inferences, and unsupported speculation.'" Suárez v. Pueblo Int'l,
Inc., 229 F.3d 49, 53 (1st Cir. 2000) (citing Medina-Muñoz v. R.J.
Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)). With
specific regard to Fiacco's IIED claim, whether a plaintiff is a
public official or public figure is an issue of law that we review
de novo. Dixon v. Int'l Bhd. of Police Officers, 504 F.3d 73, 87-
88 (1st Cir. 2007).
B. Intentional Infliction of Emotional Distress
Under Maine law, Fiacco's IIED claim survives summary
judgment if the facts establish that: 1) SAE intentionally or
recklessly inflicted severe emotional distress or was certain or
substantially certain that such distress would result from its
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conduct; 2) SAE's conduct was "so extreme and outrageous as to
exceed all possible bounds of decency and must be regarded as
atrocious, utterly intolerable in a civilized community"; 3) SAE's
actions caused Fiacco emotional distress; and 4) Fiacco's emotional
distress was so severe that no reasonable person could be expected
to endure it. Curtis v. Porter, 784 A.2d 18, 22-23 (Me. 2001)
(internal quotation omitted); accord Wytrwal v. Saco Sch. Bd., 70
F.3d 165, 173 (1st Cir. 1995).
In order to "give adequate 'breathing space' to the
freedoms protected by the First Amendment," the Supreme Court has
established an additional requisite for IIED recovery where the
distress is alleged to have been caused by published speech: public
officials and public figures may only recover if they can prove
that the publication that harmed them contained a false statement
of fact that was made with actual malice. Hustler Magazine v.
Falwell, 485 U.S. 46, 56 (1988); accord Mandel v. Boston Phoenix,
Inc., 456 F.3d 198, 201 (1st Cir. 2006) (quoting New York Times Co.
v. Sullivan, 376 U.S. 254, 279-80 (1964)). We now revisit the
district court's designation of Fiacco as a public official.
1. Public Official
Identifying a public official for the purpose of applying
the actual malice standard is not an unequivocal process. Not
every public employee is a public official, Hutchinson v. Proxmire,
443 U.S. 111, 119 n.8 (1979), but it is not clear "how far down
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into the lower ranks of government employees" the designation
extends, New York Times, 376 U.S. at 284 n.23. Only those public
employees with "substantial responsibility for or control over the
conduct of governmental affairs," however, should be considered
public officials. See Rosenblatt v. Baer, 383 U.S. 75, 85 (1966).
This Circuit has devised a three-part test to identify
public officials in the libel context. We now apply this test to
Fiacco's IIED claim as it too stems from a published statement that
is alleged to have caused harm. A public official, then, is a
person who 1) holds a position of influence over issues of public
importance, as defined by the position's inherent attributes; 2)
has special access to the media as a means of self-help; and 3)
assumed the risk of diminished privacy upon taking on the position.
Mandel, 456 F.3d at 204. Fiacco asserts that he does not qualify
as a public official under any of these factors. Our analysis
under Mandel, however, is heavily dependent on the facts averred
and our thorough review of the record leads to the conclusion that
Fiacco does warrant this designation.
The inherent attributes of Fiacco's position as Director
of the Office of Community Standards demonstrate that he exercises
influence over issues of public importance. The goings-on inside
a state university are of interest to the public because state
colleges such as UMO are funded with tax revenue, and it is to be
expected that the public will want to know how its money is being
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managed and spent. See Kassel v. Gannett Co., Inc., 875 F.2d 935,
940 (1st Cir. 1989) (stating that taxpayers have a general interest
in the oversight of any publicly-funded employment). While
Fiacco's office might address issues as mundane as the enforcement
of dorm quiet hours, it is also responsible for the handling of
much more sensitive situations such as allegations of date rape and
hazing. These types of matters are of clear public importance and,
as the office director, Fiacco has a strong influence over the
handling of such matters because he sets the policies and either
adjudicates or picks the adjudicators who will address such
grievances. The first Mandel factor therefore weighs in favor of
finding Fiacco to be a public official.
As the Director of the Office of Community Standards,
Fiacco also has special access to the media as a means of self-
help. As the record reveals, between October 2001 and October 2002
-- before and during the investigation of Maine Alpha -- Fiacco was
mentioned by name in eleven newspaper articles appearing in The
Maine Campus and the Bangor Daily News. All of these articles
recognized Fiacco as the director of the UMO Office of Community
Standards or its predecessor, the Office of Judicial Affairs. In
some articles Fiacco was quoted speaking on behalf of his office on
the UMO student code of conduct and other university policies. One
article even noted that Fiacco had been sought for comment, but had
declined to speak. It is apparent, then, that Fiacco had special
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access to the media beyond that of an ordinary person; therefore,
faced with the Sexton Group's mailing, had he wished to defend his
reputation in public, the media would likely have covered his
story. See Gertz, 418 U.S. at 344 ("Public officials and public
figures usually enjoy significantly greater access to the channels
of effective communication and hence have a more realistic
opportunity to counteract false statements than private individuals
normally enjoy"). The second factor also supports designation as
a public official. Cf. Kassel, 875 F.2d at 941 (finding that a
staff psychologist at a Veterans' Administration hospital was not
a public official and did not have special access to the media
because, among other reasons, his duties did not include answering
press inquiries).
The third factor, whether Fiacco assumed a risk of
diminished privacy when he became Director of the Office of
Community Standards, also leads to this conclusion. As highlighted
in the preceding analysis, Fiacco could and should have anticipated
that some of the sensitive topics and situations handled by his
office would attract public attention. Because the public is
interested in such matters, it is also interested in Fiacco as the
person adjudicating them and/or setting the policies and procedures
by which they will be adjudicated. Such an interest should be
expected to extend into Fiacco's personal life insofar as such
matters might indicate Fiacco's fitness to assume this task. See
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Garrison v. Louisiana, 379 U.S. 64, 77 (1964) ("The public-official
rule protects the paramount public interest in a free flow of
information to the people concerning public officials, their
servants. To this end, anything which might touch on an official's
fitness for office is relevant."). Indeed, Fiacco's departure from
the position of Director of Public Safety at Fort Lewis College --
a departure precipitated by a personal matter reflecting Fiacco's
fitness to hold that office, and which was reported in the local
media -- must have served to put Fiacco on notice that holding a
directorial position in a college office of student conduct and
safety entails a risk of diminished personal privacy.
Based on our analysis of the three Mandel factors, then,
Fiacco qualifies as a public official and must meet the actual
malice standard in order to recover for his IIED cause of action.
As Fiacco is a public official, we need not reach the question of
whether he is also a public figure.
2. Actual Malice
The First Amendment requires Fiacco, as a public
official, to prove that the Sexton Group's mailing contained a
false statement of fact and was made with actual malice. Actual
malice means that the offending party published a statement about
the plaintiff "with knowledge that the statement was false or with
reckless disregard as to whether or not it was true." Hustler
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Magazine, 485 U.S. at 56; accord Mandel, 456 F.3d at 201 (quoting
New York Times, 376 U.S. at 279-80).
Regarding the requirement of identifying a false
statement of fact, Fiacco does not dispute the truth of the court
documents and newspaper articles included in the Sexton Group's
mailing. Instead, Fiacco only challenges the Sexton Group's
characterization of his legal troubles in the anonymous
memorandum.2 Specifically, he asserts that 1) he was not convicted
of "DWI," 2) he did not commit sexual harassment, and 3) he did not
engage in domestic violence. We address each of Fiacco's arguments
in turn.
On Fiacco's first claim, that he was never convicted of
"DWI" or Driving While Intoxicated but only of "DWAI" or Driving
While Ability Impaired, we first acknowledge that under Colorado
law -- the state where the offense took place -- the only two
drinking and driving offenses for which Fiacco could have been
convicted are DWAI and Driving Under the Influence ("DUI"). See
Colo. Rev. Stat. § 42-4-1301(1) (2007). As such, Fiacco could not
technically have been convicted of DWI as indicated by the Sexton
2
That memorandum reads as follows:
Enclosed please find newspaper articles and
court documents detailing Mr. Fiacco's
previous legal difficulties: DWI, Sexual
harassment, and Domestic Violence. Is this
honestly the best qualified candidate the
University of Maine could find for the Office
of Judicial Affairs?
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Group's memo. This discrepancy is of little import however,
because DWI and DUI are essentially interchangeable terms in that
they both indicate that the defendant attempted to drive a vehicle
with an elevated amount of alcohol or drugs in his system so that
such activity was illegal and unsafe. This is also the essence of
a DWAI conviction. See id. at § 42-4-1301(1)(g). It is for this
reason that Fiacco's attempt to distinguish between DWAI and DUI
based on the blood alcohol content level required for each
conviction -- between 0.05 and 0.08 for DWAI; 0.08 or above for
DUI; id. at § 42-4-1301(6)(a) -- falls flat; more so because
Fiacco's blood alcohol level at the time of this incident was 0.89
percent. Thus the memorandum's assertion that Fiacco had previous
legal difficulties with DWI is not a false statement of fact. See
Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517 (1991)
("Minor inaccuracies do not amount to falsity so long as the
substance, the gist, the sting, of the libelous charge be
justified." (citation and internal quotation marks omitted)).
Fiacco's second claim, that he has never been the subject
of sexual harassment allegations or charges, also borders on the
disingenuous. Fiacco admits, and the mailed court records confirm,
that he was involved in a dispute with a former girlfriend who
ultimately secured a restraining order against him under the
Colorado Domestic Abuse Act, formerly Colorado Revised Statutes
§§ 14-4-101 et seq. (2004). Court documents related to those
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proceedings reveal Fiacco's acknowledgment that his actions towards
his former girlfriend "may have crossed the line into harassing
behavior." As such, the Sexton Group memorandum's statement that
Fiacco has had legal difficulties with sexual harassment is not
false.
Regarding Fiacco's third and final claim, we believe the
memorandum's statement that Fiacco has had legal difficulties with
domestic violence is validated by the text of the permanent
restraining order secured by Fiacco's former girlfriend, which
reads: "THE COURT FINDS . . . that you [Fiacco] have committed an
act of violence against the plaintiff, or have threatened to do
so."3 This alone is enough to establish that the memorandum's
statement is not a false statement of fact. Contrary to Fiacco's
assertions, a conviction for domestic violence is not required to
make this statement true.
As Fiacco is unable to prove that the offensive
memorandum included a false statement of fact, he fails to meet the
first prong of the actual malice standard applicable to him as a
public official. We need go no further to address whether the
Sexton Group acted with actual malice. Fiacco is unable to meet
the requirements of the IIED cause of action and cannot recover
3
Though this order was later vacated on appeal, the appellate
court did not disturb the trial court's finding that Fiacco had
committed an act of domestic violence.
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damages. The district court's grant of summary judgment to SAE was
proper.
III. Conclusion
For the foregoing reasons, the district court's judgment
is affirmed.
Affirmed.
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