Judy Chang v. Purdue University, The Trustees of Purdue University Dr. France A. Cordova, President of Purdue University (in her official capacity) , 2013 Ind. App. LEXIS 131 ( 2013 )

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEES:
NORMAN L. ROELKE TANDRA M. STOVALL
Fort Wayne, Indiana Stuart & Branigin LLP
Lafayette, Indiana
Mar 19 2013, 9:20 am
IN THE
COURT OF APPEALS OF INDIANA
JUDY CHANG, )
)
Appellant - Plaintiff, )
)
vs. ) No. 02A03-1206-PL-272
)
PURDUE UNIVERSITY; THE TRUSTEES OF )
PURDUE UNIVERSITY; DR. FRANCE A. )
CORDOVA, President of Purdue University, (in )
her official capacity); DR. MICHAEL A. )
WARTELL, Chancellor of IPFW, (in his official )
capacity); DR. LINDA FINKE (in her individual )
capacity); DR. LINDA MEYER (in her individual )
capacity); DR. CAROL STERNBERGER, (in her )
individual capacity); and DR. KATHLEEN )
O’CONNELL (in her individual capacity), )
)
Appellees - Defendants. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable David J. Avery, Judge
Cause No. 02D01-0910-PL-378
March 19, 2013
OPINION - FOR PUBLICATION
FRIEDLANDER, Judge
Judy Chang appeals the denial of her summary judgment motion and her motion for
directed verdict, as well as the grant of a summary judgment motion submitted by Purdue
University, the Trustees of Purdue University, Dr. France Cordova (in her capacity as Purdue
University’s president), Dr. Michael Wartell (in his capacity as chancellor of Indiana
University – Purdue University at Fort Wayne (IPFW)), and, in their individual capacities,
Dr. Linda Finke, Dean of the College of Health and Human Services (CHHS), Dr. Linda
Meyer, IPFW’s Director of Undergraduate Programs for the Department of Nursing and a
professor in that department, Carol Sternberger, Chair of the Department of Nursing, and
Kathleen O’Connell, a former professor in the nursing program and IPFW’s Associate Vice
Chancellor for Academic Affairs. Chang also appeals a jury verdict against her. Chang
presents the following restated issues for review:
1. With respect to Chang’s breach-of-contract claims, did the trial court
err in not granting Chang’s pretrial summary judgment motion, or her
motion for a directed verdict at the end of trial; and did the evidence
support the jury’s verdict?
2. With respect to Chang’s claim under 42 U.S.C. § 1983, did the trial
court err in denying Chang’s summary judgment motion and granting
Purdue’s summary judgment motion?
3. With respect to Chang’s claim arising under article 1, section 12 of the
Indiana Constitution, did the trial court err in denying Chang’s
summary judgment motion?
4. Did the trial court err in dismissing Chang’s claims of tortious
interference with Chang’s contract and property rights?
5. Did the trial court err in not allowing the testimonies of Chris Mertz
regarding his suspension from class for unprofessional conduct and
violations of the IPFW Disciplinary Code, and of Grace Decker, who
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witnessed the October 30, 2008 incident that led to Chang’s dismissal
from the Department of Nursing, College of Health and Human
Services?
We affirm.
In the fall of 2008, Chang was a student enrolled in CHHS’s Department of Nursing at
Purdue’s regional IPFW campus. This case ultimately centers upon her dismissal from the
CHHS and the Department of Nursing, a dismissal that was precipitated by an incident
involving Chang and primarily one other CHHS student on October 30, 2008. This incident
was not Chang’s first difficulty in the nursing program.
Chang’s studies in IPFW’s nursing program began in 2007. On January 29, 2007,
Chang’s lab coordinator formally documented concerns about Chang’s lab skills. When lab
personnel attempted to discuss their concerns with Chang, Chang “became very
argumentative and stated she felt targeted.” Appellees’ Appendix at 67. When someone in
the program again attempted to discuss their concerns with Chang on or about February 7,
2007, this resulted in “angry behavior” on Chang’s part. Id. When that person was asked
about another meeting with Chang, she responded: “I am not comfortable talking to [Chang]
alone. As I have thought more about this today, I am concerned that there is more to this
than just a difference in cultures. I am wondering about some type of personality disorder or
mental problem.” Id. Finally, on February 16, Dr. Sternberger met with Chang and they
discussed a specific plan “for improvement in nursing lab check-offs and clinical.” Id. at 67-
68. Dr. Sternberger sent Chang a follow-up email summarizing the substance of their
meeting. Chang responded to this email as follows: “PLEASE LEAVE ME ALONE. I
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DON’T WANT TO BE BOTHERED LIKE THIS AGAIN.” Id. at 68.
On April 3, 2007, Chang had a confrontation with another nursing student. A
supervisor saw Chang leaning over a table within six inches of another student and “talking
very hateful” to that student. Id. at 69. Moments later, the supervisor observed the other
student crying and saying to Chang, “I don’t want to discuss this with you any more.” Id.The supervisor observed that Chang leaned back over to the student and “was talking hateful
again.” Id. On April 6, Dr. Sternberger advised Chang that a hearing was scheduled
concerning the April 3 incident. On April 10, program personnel received an email regarding
an incident involving Chang in the office of Services for Students with Disabilities.
According to the email, Chang was “argumentative with Mary and Judy in their office,
throughout which Chang ‘became increasingly agitated and disrespectful.’” Id. at 70. On
April 18, 2007, Dr. Sternberger filed a report with IPFW campus police reporting that
students overheard Chang making statements to the effect, “I have a gun” or “I have a gun
and know how to use it.” Id.On September 17, 2007, Dr. Sternberger advised Dr. Donna Bialik, IPFW’s Dean of
Students, that Chang was failing her clinical course at St. Joseph Hospital’s Adult Behavioral
Health Unit as a result of unprofessional conduct. Chang was advised that a meeting was
scheduled for September 19 to discuss Chang’s behavior in the course. Chang did not attend
the meeting, but instead dropped the course. On December 21, 2007, the Nursing
Department notified Chang that she had earned a grade below a “C”, and thus on January 8,
2008, Chang was placed on academic probation.
4
As indicated previously, however, all of the foregoing was prelude to the incident that
gave rise to the present litigation. On October 30, 2008, Chang and student Julie Webb
argued about “a group project and the tasks to be performed by the students for their nursing
class.” Appellant’s Appendix at 25. The argument left Webb feeling threatened by Chang.
Webb, who was pregnant at the time, believed that Chang was going to push her down the
stairs. On November 4, 2008, Dean Finke and Dr. Sternberger determined that Chang had
violated the professional misconduct policy and Meyer informed Chang that she would be
removed from the clinical course pending an investigation of the complaint about Chang’s
conduct. Chang was then escorted out of the hospital by security personnel.
In connection with the October 30 incident, Chang was charged with unprofessional
conduct pursuant to the Department of Nursing Professional Misconduct policy, which states:
Students may be failed in a nursing course and/or dismissed from the
IPFW/Parkview Department of Nursing for unprofessional conduct that
jeopardizes the health and/or safety of patients/clients and/or others or has a
potentially detrimental effect on the Department of Nursing. Due to the
serious consequence of certain unprofessional behaviors, procedures for
dismissal from the program may be initiated. If the student is in a clinical
setting at the time that professional misconduct occurs, the person will be
immediately removed from the site. The student will be suspended from all
clinical settings pending the outcome of the disciplinary process.
Students are held to the standards of the Indiana Nurse Practice Act and
as such, they are liable for their own actions. Behaviors of professional
misconduct occurring at any time while the person is a student in the nursing
program may result in disciplinary action include, but are not limited to:
• Patient Abandonment and/or neglect
• Commission of fraudulent acts/documentation
• Breach of confidentiality
• Theft of property from a clinical agency, client, others of
IPFW
5
• Disorderly conduct
• Verbal abuse that involves an expressed or implied threat to
a person’s safety
• Physical abuse of any person
• Possession of a weapon
• Failed drug screen and/or possession of drugs or controlled
substances
• Failed drug screen and/or possession of alcohol while at a
clinical agency
• Failure to report an arrest with felony charges or a felony
conviction
• Any behavior that constitutes misconduct as defined by the
IPFW Student Handbook and Planner and/or the IPFW
Undergraduate Bulletin.
The Department of Nursing follows the processes outlined in the
College of Health and Human Services (CHH) Policy on Professional
Misconduct and the IPFW Student Disciplinary Procedures. The CHH
Policy on Professional Misconduct may be obtained from the office of
the Dean. The IPFW Student Disciplinary Procedures is found in the
IPFW Student Handbook and Planner and/or the IPFW Undergraduate
Bulletin.
Appellee’s Appendix at 64. On November 6, Chang met with a committee of the Department
of Nursing to discuss the allegations against her and to allow Chang an opportunity to
respond. The committee consisted of Pam DeKonnck and Sanna Harges, members of the
nursing faculty, Meyer, Director of Undergraduate Programs, and Sternberger, Chair of the
Nursing Department. Chang attended with her advisor, Bialik. The committee first met
with Webb, the other student involved in the incident. Webb “voiced extreme concern for
her safety”, and indicated that she had filed a statement with the Fort Wayne Police
Department and stated that she was considering obtaining a restraining order. Id. at 27. The
student also indicated that although her home telephone number was unlisted, Chang had
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called her at home earlier in the semester. Later, Chang had left a “rambling message” on the
student’s cell phone. Id. After the student met with Bialik, Chang was directed to stop
calling the student. In a letter sent to Chang informing her of her dismissal from the
program, the committee stated:
The nursing department committee determined that sufficient evidence of a
pattern of unprofessional conduct that jeopardized the health and/or safety of
classmates was documented to support dismissal from nursing program [sic].
The decision was based on the pattern of action of verbal abuse that involved
an expressed or implied threat to a person’s safety.
Id.On November 23, 2008, Chang appealed her dismissal to the Student Appeals
Committee. In addition to reviewing a packet containing all that had occurred up to that
point, the Student Appeals Committee met with the faculty members involved in Chang’s
case, and also met with Chang in order to allow her to tell her side of the story. On
December 8, 2013, the Student Appeals Committee informed Chang by letter that the
committee had reviewed Chang’s appeal of the decision and “unanimously believes the
decision made by the Department of Nursing was justified.” Id. at 91.
On December 29, 2008, Chang appealed the Student Appeals Committee’s decision to
the Campus Appeals Board. This board consisted of Dr. O’Connell, faculty members
Douglas Townsend and Margit Codispoti, S.S., a business student, and A.K., a psychology
student. Chang initiated the appeal to the Campus Appeals Board by submitting a letter to
the IPFW office of the Dean of Students, in which she cited the following grounds for
appeal:
7
I beleive [sic] improper Procedures and a lack of Due Process have been
followed at the earlier steps of the appeal process in that I was not given the
names of the witnesses against me, their statements and/or allowed to confront
them in the appeals process or confront false evidence provided and cited by
Dr. Carol Sternberger to support dismissal from the College of Health and
Human Services. It is also believed the department tried to coerce an impartial
witness to testify against me and yet her statement stated that she did not see
any expressed or implied threat.
I believe I have been discriminated upon [sic] based on my race, sex, and/or
national origin.
Id. at 25. The Campus Appeals Board held a hearing on March 30, 2009. Chang was present
at the hearing and Norman Roelke, Chang’s appellate counsel in the present litigation, served
as her advisor. The Campus Appeals Board heard statements and reviewed evidence
submitted by both sides, and also received the testimony of Meyer, Finke, and Sternberger as
witnesses for the Department of Nursing and CHHS. The board ultimately affirmed Chang’s
dismissal on the strength of the following conclusions:
Testimony and documentation appear to identify that [Chang] was treated
fairly, received notification, engaged in a discussion of the charges with the
nursing faculty, and was informed of the results and her right of appeal. No
documentation was found to identify whether or not Ms. Chang was informed
that she would possibly be dismissed from the program as a result of the
meeting. However, a review of documentation of concerns about the student’s
behavior in the clinical setting dating back to her first clinical course revealed
that the faculty had, or had attempted to, talk with, meet with, or communicate
with Ms. Chang on a number of occasions to inform her that she needed to
present herself in a more positive and cooperative professional manner when
dealing with patients, staff and classmates. The consequences for
unprofessional behavior are identified in the Professional Misconduct Policy in
the Nursing Student Manual and the behaviors covered by the policy do not
appear to be limited to the clinical setting. The removal from the clinical
setting by the dean of the college and security staff was also a significant
event. The majority of the Board therefore concluded that the student should
have known that her place in the nursing program was in jeopardy when she
8
attended the meeting.
Id. at 95.
Finally, Chang appealed to IPFW Chancellor Wartell, who affirmed the Campus
Appeals Board’s ruling. In an April 15, 2009 letter to Chang, Chancellor Wartell explained:
Based upon the facts and circumstances in this matter, I concur with the
Recommendations and determine there was no violation of due process when
you were dismissed from the Department of Nursing and the College of Health
and Human Services. Specifically, I find you were notified of the allegations
causing your removal from the clinical setting. Further, you were notified of
the meeting and were offered an opportunity to rebut information as well as
present information in your favor. Still further, documentation was provided
that you were previously informed of your prior unprofessional behavior. Still
further, the Professional Misconduct Policy, in the Nursing Student Handbook,
states dismissal may occur for unprofessional conduct and “behaviors of
professional misconduct occurring at any time while the person is a student in
the nursing program may result in disciplinary action…[.]” Still further, the
College of Health and Human Services chooses the most stringent course of
action regarding misconduct and a “student dismissed from his or her program
will also be dismissed from the College of Health and Human Services.” Still
further, the Student Appeals Committee found your dismissal to be proper.
When considering these factors, you were afforded due process in your
dismissal from both the Department of Nursing and the College of Health and
Human Services.
Id. at 60-61.
On October 6, 2009, Chang filed the present lawsuit. In Count I, Chang alleged a
violation of her Fourteenth Amendment due process rights under 42 U.S.C. § 1983.
Specifically, she sought injunctive relief against the Trustees, Cordova, and Wartell in the
form of reinstatement in the nursing program and expungement from her student files and
records of all references to the above-described events, including the “F” she received in the
class she was talking at the time of her dismissal. She also sought under Count I
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compensatory damages against Finke, Meyer, Sternberger, and O’Connell, in their individual
capacities. She sought essentially the same relief under Count II, which alleged that
Appellees violated her rights under article 1, section 12 of the Indiana Constitution, Indiana’s
version of the guarantee of due process. Under Count III, Chang alleged that Appellees’ acts
constituted a breach of the implied contract between Purdue University and Chang with
respect to Article 16 of the Purdue Conduct Code. 1 Under this count, Chang sought
injunctive relief against Cordova and Wartell, and compensatory and punitive damages
against the Trustees, Finke, Meyer, Sternberger, and O’Connell. Under Count IV, Chang
alleged a second claim of breach of contract, this one related to the IPFW Code. As with her
claim for relief under Count III, Chang also sought injunctive relief against Cordova and
Wartell, and compensatory and punitive damages against the Trustees, Finke, Meyer,
Sternberger, and O’Connell. Under Count V, Chang alleged that Appellees tortiously
interfered with her property right in obtaining a nursing education at Purdue University and
thereby sought compensatory and punitive damages from Finke, Meyer, Sternberger, and
O’Connell in their individual capacities. Finally, under Count VI, Chang sought
compensatory and punitive damages from Finke, Meyer, Sternberger, and O’Connell in their
individual capacities under a theory of tortious interference with contract pertaining to
Chang’s contract with Purdue University.
1
Article 16 states, in pertinent part: “Every student … has the right to substantial and procedural fair play in
the administration of discipline and the imposition of academic sanctions. This requires in all situations that
the student be given an opportunity to refute them, and that the institution not be arbitrary in its actions.”
Appellant’s Appendix at 32.
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On March 29, 2010, the trial court granted Purdue University’s motion to dismiss
Count I, but denied all of Appellees’ other motions to dismiss Count I with respect to the
remaining defendants, and also denied all other motions to dismiss Counts II, V, and VI. On
October 5, 2011, Chang filed a motion for summary judgment. Appellees countered with a
summary judgment motion of their own on October 7, 2011. On March 21, 2012, the trial
court granted summary judgment in favor of Appellees “on that portion of Count I … seeking
monetary damages and equitable relief from [Appellees] pursuant to § 1983.” Appellant’s
Appendix at 45. The court granted Appellees’ summary judgment motion with respect to
Chang’s claims for monetary damages under Count II, but denied summary judgment on the
request for injunctive relief. The court determined that neither side was entitled to summary
judgment concerning Counts III and IV. The court granted summary judgment in favor of
Appellees with respect to Counts V and VI on grounds that Chang failed to comply with the
notice provision of the Indiana Tort Claims Act. See Ind. Code Ann. § 34-13-3-8 (West,
Westlaw current through 2012 2nd Reg. Sess.).
Essentially, only Counts III and IV survived the pretrial phase and proceeded to jury
trial. By that time, Purdue University was the only remaining defendant. The trial court
decided to conduct a bifurcated trial, with the first phase addressing liability and the second
phase focusing on damages. In the first phase, the court determined that the following two
issues would be submitted to the jury:
1. The nature and terms of the contractual agreement between [Chang]
and the Defendant, Purdue University.
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2. Whether the Defendant, Purdue University, breached its contract with
[Chang] by failing to follow proper procedures in dismissing [Chang]
from the Nursing Program.
Appellant’s Appendix at 18. The jury found in favor of Purdue University and against Chang
on Counts III and IV, and the trial court entered judgment accordingly.
1.
Chang contends the trial court erred in not granting her pretrial summary judgment
motion and her motion for a directed verdict at the end of trial concerning her breach-of-
contract claims. She also contends the evidence did not support the jury’s determination that
Purdue University did not breach its contract with Chang.
Our standard of review for rulings on summary judgment motions is well settled.
When reviewing a grant or denial of a motion for summary judgment our
standard of review is the same as it is for the trial court. The moving party
“bears the initial burden of making a prima facie showing that there are no
genuine issues of material fact and that it is entitled to judgment as a matter of
law.” Gill v. Evansville Sheet Metal Works, Inc., 970 N.E.2d 633, 637 (Ind.
2012). Summary judgment is improper if the movant fails to carry its burden,
but if it succeeds, then the nonmoving party must come forward with evidence
establishing the existence of a genuine issue of material fact. Id. In
determining whether summary judgment is proper, the reviewing court
considers only the evidentiary matter the parties have specifically designated to
the trial court. See Ind. Trial R. 56(C), (H). We construe all factual inferences
in the non-moving party’s favor and resolve all doubts as to the existence of a
material issue against the moving party. The fact that the parties have filed
cross-motions for summary judgment does not alter our standard for review, as
we consider each motion separately to determine whether the moving party is
entitled to judgment as a matter of law.
Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012) (some internal citations to authority omitted).
“We will affirm the denial of summary judgment if it is sustainable on any legal theory or
12
basis found in the evidentiary matter designated to the trial court.” Illinois Bulk Carrier, Inc.
v. Jackson, 908 N.E.2d 248, 253 (Ind. Ct. App. 2009) (quoting W. Amer. Ins. Co. v. Cates,
865 N.E.2d 1016, 1020 (Ind. Ct. App. 2007), trans. denied), trans. denied.
Chang’s breach-of-contract claims center upon the applicability of the Purdue Code
and IPFW Code to Chang’s dismissal. In a nutshell, Chang contended below and reiterates
upon appeal that those two codes govern – or should govern – proceedings that, as happened
in her case, result in dismissal. Those codes prescribe a panoply of rights and procedures,
some of which were not followed in Chang’s dismissal from the nursing program.
Ultimately, the trial court concluded that neither party was entitled to summary judgment on
this question and that the question should be submitted to the jury.
We begin our discussion of this issue by reviewing a matter that is foundational to
Chang’s claim in this regard, i.e., the nature of the contractual relationship between a
university and its students. We recently had cause to explore this subject in depth in Amaya
v. Brater, 981 N.E.2d 1235 (Ind. Ct. App. 2013). We understand that the Amaya opinion has
not yet been certified and that a petition for rehearing in that case is pending. We discuss this
case, however, because we agree with its analysis and rationale, which are instructive and
apply with equal force in the present case. In Amaya, a medical student, Amaya, was
dismissed from medical school after three professors reported having observed him cheating
during a test. A disciplinary complaint was filed and a hearing was held on that complaint.
At the conclusion of the proceedings, the student was dismissed. Thereafter, he initiated
appeals that ultimately proved to be unsuccessful and the dismissal was upheld. He filed a
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lawsuit against the medical school seeking reinstatement. One of the theories of liability
advanced in his complaint was that the medical school had breached its contract with him by
not publishing its standards and procedures for disciplinary actions in accordance with
accreditation standards and the Indiana University Code of Student Ethics. He also
complained that the medical school breached its contract by not strictly adhering to “its own
internal policies and procedures for disciplinary misconduct and to ‘guarantee students in the
unit a fair opportunity to be heard consistent with the standards of evidence and due process
found’ in the Code of Student Ethics and the LCME’s accreditation standards.” Id. at 1240-
41.
Although courts have analyzed the relationship between student and university under
many different legal doctrines, “‘[t]he most pervasive and enduring theory is that the
relationship between a student and an educational institution is contractual in nature. The
terms of the contract, however, are rarely delineated, nor do the courts apply contract law
rigidly.’” Id. at 1240 (quoting Neel v. Ind. Univ. Bd. Of Trs., 435 N.E.2d 607, 610 (Ind. Ct.
App. 1982)). Although it is generally accepted that a university’s catalogues, bulletins,
circulars, and regulations that are made available to its students become of part of this
contract, our courts have taken “a very flexible approach to the scope of contractual promises
between students and universities and have noted that hornbook rules cannot be ‘applied
mechanically where the principal is an educational institution’ and the result would be to
override an academic determination.” Id. (quoting Neel v. Ind. Univ. Bd. Of Trs., 435
N.E.2d. at 611) (citations omitted).
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University disciplinary determinations in most cases are premised upon the subjective
professional judgment of trained educators, and therefore our courts “‘have quite properly
exercised the utmost restraint in applying traditional legal rules to disputes within the
academic community.’” Id. (quoting Neel v. Ind. Univ. Bd. Of Trs., 435 N.E.2d at 611). As a
result, in the area of academic services, our approach has been akin to the one used in the
case of contracts conditioned upon the satisfaction of one party. The university requires that a
student’s academic performance be satisfactory in the university’s honest judgment. “‘Absent
a showing of bad faith on the part of the university or a professor, the court will not interfere.
The good faith judgment model both maximizes academic freedom and provides an
acceptable approximation of the educational expectations of the parties.’” Id. (quoting Neel
v. Ind. Univ. Bd. Of Trs., 435 N.E.2d at 611). Bad faith in this context “‘is not simply bad
judgment or negligence [, r]ather, it implies the conscious doing of a wrong because of
dishonest purpose or moral obliquity.’” Id. (quoting Gordon v. Purdue Univ., 862 N.E.2d
1244, 1251 (Ind. Ct. App. 2007)). “Literal adherence by a university to its internal rules will
not be required when the dismissal of a student ‘rests upon expert judgments as to academic
or professional standards and such judgments are fairly and nonarbitrarily arrived at.’” Id.(quoting Neel v. Ind. Univ. Bd. Of Trs., 435 N.E.2d at 612) (emphasis supplied). 2 Our sole
2
We note that the trial court determined in its March 21, 2012 ruling that Appellees were not entitled to
summary judgment on Chang’s breach-of-contract claim on grounds that Chang was required to prove bad
faith in order to prevail on this theory of liability in the present context, and failed to do so. In reaching this
conclusion, the court expressly rejected the argument that this court’s decision in Gordon v. Purdue Univ., 862
N.E.2d 1244, established that bad faith is an element of a breach-of-contract claim by a student against a post-
secondary institution that is premised upon a failure to adhere to university regulations pertaining to student
disciplinary proceedings. The court noted that Gordon involved a dismissal for academic misconduct, whereas
the present case involved a dismissal premised upon professional misconduct. In the trial court’s view, this
15
function when reviewing disciplinary actions such as in the present case is to determine
whether the educational institution acted illegally, arbitrarily, capriciously, or in bad faith.
Amaya v. Brater, 981 N.E.2d 1235.
As set out in detail above, Chang was given notice that the Nursing Department
Committee would convene a hearing on November 6, 2008 at which Chang would be given a
chance to present her side of the story concerning allegations that Chang had engaged in
professional misconduct during the October 30 incident. Chang relayed to the committee her
version of what had happened, after which the committee concluded that the evidence
revealed Chang had engaged in a pattern of unprofessional conduct that jeopardized the
health and/or safety of a classmate. Chang appealed her dismissal to the Student Appeals
Committee, which reviewed the evidence presented to the Nursing Department Committee
and listened to Chang’s version of the incident. The Student Appeals Committee upheld the
dismissal. Chang next appealed to the Campus Appeals Board. Chang provided a written
submission to and appeared personally before the CAB and made a statement outlining her
position. The CAB reviewed evidence presented by both sides. After the hearing was
concluded, the CAB determined that Chang had been provided a meaningful opportunity to
defend the charge against her and thus had received due process, and that the evidence
supported Chang’s dismissal. The CAB also determined that the Nursing Department had
was a significant distinction and provided just grounds for rejecting Gordon as applicable in this case. Of
course, the trial court did not have the benefit of the Amaya decision when it made its ruling. We are
convinced that the expansive language in Amaya, and especially the language highlighted above, indicates that
this distinction does not drive a different result than that reached in Gordon and in the present case.
16
acted properly in applying its professional misconduct policy rather than the Purdue Code or
the IPFW Code. Finally, Chancellor Wartell reviewed the CAB’s findings and
recommendations and accepted its recommendation to uphold Chang’s dismissal.
Based upon the foregoing, we conclude that Chang failed to designate evidence
establishing that the Nursing Department’s decision to dismiss Chang was arbitrary,
capricious, or made in bad faith. The Nursing Department’s conclusion that Chang violated
the its professional misconduct policy was a rational determination arrived at after much
deliberation and after Chang had several opportunities before multiple different committees
and boards to be heard and to explain her behavior.
Finally, we note, as did the Amaya panel with respect to the decision-makers in that
case, that our deference to the foregoing expert judgments concerning Chang’s failure to
meet professional standards is dictated by the fact that the administrators and professors in
the CHHS and the Nursing Department at IPFW “have a duty to the public as well as to the
student.” Amaya v. Brater, 981 N.E.2d at 1242. “To place incompetent, irresponsible, or
unethical [nurses] into active practice would surely be to the detriment of the health and
safety of the members of society.” Id. We reiterate that we are ill-equipped to second-guess
professional judgments that are not arrived at arbitrarily. See Amaya v. Brater, 981 N.E.2d
1235. The trial court did not err in denying Chang’s summary judgment motion.
Chang contends the trial court erred in denying her motion for directed verdict and
that the evidence was not sufficient to support the jury’s verdict. Because these claims
essentially allege the same error, we will combine them into a single discussion of the
17
sufficiency of the evidence. See, cf., Delagrange v. State, 981 N.E.2d 1227, 1230 (Ind. Ct.
App. 2013) (“‘[i]f the evidence is sufficient to sustain a conviction upon appeal, then a
motion for a directed verdict is properly denied;” for this reason, “our standard of review is
essentially the same as that upon a challenge to the sufficiency of the evidence; thus, our
standard of review is essentially the same as that upon a challenge to the sufficiency of the
evidence’”), trans. denied.
The jury concluded that IPFW did not breach its contract with Chang concerning the
procedures for addressing acts on the part of nursing students that are alleged to violate the
professional misconduct policy. We summarized and discussed the relevant evidence at
length in reaching our conclusion that the trial court did not err in denying Chang’s summary
judgment motion. We now observe that the same evidence not only supported the trial
court’s pretrial ruling, but also supports the jury’s verdict on that same question. Thus, we
need not rehash it. The trial court did not err in denying Chang’s motion for directed verdict,
because the evidence was sufficient to support the jury’s verdicts against Chang.
2.
In Count I of her complaint, Chang sought injunctive relief under 42 U.S.C. § 1983against the Trustees, Cordova, and Wartell (seeking expungement of the “F” grade in
Nursing 202, reinstatement in the nursing program, and the removal from her permanent
record of negative comments and police reports filed against her), and compensatory
damages against Fink, Meyer, Sternberger, and O’Connell on grounds that they acted outside
the scope of their employment in disregarding the Purdue and IPFW Codes when dismissing
18
Chang. She contends that the trial court erred in not granting her summary judgment motion
and in granting Purdue’s summary judgment motion.
42 U.S.C. § 1983 was designed to prevent states from violating the Constitution and
certain federal statutes, and to compensate injured plaintiffs for deprivations of those
federally conferred rights. Culver-Union Twp. Ambulance Serv. v. Steindler, 629 N.E.2d
1231 (Ind. 1994). “It was not intended to supplant state tort law by providing a remedy for
every wrong.” Id. at 1233. Moreover, our courts have “previously rejected reasoning that
‘would make of the Fourteenth Amendment a font of tort law to be superimposed upon
whatever systems may already be administered by the States.’” Id. (quoting Davis v.
Williams, 474 U.S. 327, 332 (1986)). “A state tort does not become a constitutional violation
simply because it is committed by a government actor.” Id. That said, it is well settled that a
state official may be sued in his or her official capacity for prospective relief such as an
injunction for a violation of a person’s due process rights under § 1983. See, e.g., Ross v.
Ind. State Bd. Of Nursing, 790 N.E.2d 110 (Ind. Ct. App. 2003). Chang sued the Trustees,
Cordova, and Wartell in their official capacities for just such relief, including reinstatement
to the nursing program and expungement from Chang’s record of information related to this
incident. Also, a state official may be sued in his or her individual capacity for retrospective
relief under § 1983. 3 See, e.g., City of Warsaw v. Orban, 884 N.E.2d 262 (Ind. Ct. App.
3
Appellees contend that the claims against Fink, Meyer, Sternberger, and O’Connell in their individual
capacities were “in reality a claim against the State rather than the individual” because “Chang has not alleged
a single claim against [them] for conduct taken as a natural person, separate and distinct from their roles as
professor and/or administrator at IPFW.” Brief of Appellees at 15. Thus, they argue, the claims against these
19
2003), trans. denied. Chang sued Fink, Meyer, Sternberger, and O’Connell for compensatory
damages under § 1983 on grounds that they acted outside the scope of their employment in
disregarding the Purdue and IPFW Codes when dismissing Chang.
The trial court granted summary judgment in favor of the Trustees, Cordova, and
Wartell in their official capacities, and in favor of Fink, Meyer, Sternberger, and O’Connell
in their individual capacities, and correctly so. Assuming that “Chang had federally
protected property rights in her continued education in the nursing department”, Appellant’s
Brief at 31, “an unauthorized intentional deprivation of property by a state employee does not
constitute a violation of the procedural requirements of the Due Process Clause of the
Fourteenth Amendment if a meaningful post-deprivation remedy for the loss is available.”
Hudson v. Palmer, 468 U.S. 517, 533 (1984).
In the present case, as the trial court observed, in Counts III and IV of her amended
four persons ostensibly in their individual capacities were actually claims against them in their official capacity,
and should be analyzed accordingly. The United States Supreme Court has rejected this line of reasoning:
[This] theory would absolutely immunize state officials from personal liability for acts
within their authority and necessary to fulfilling governmental responsibilities. Yet our
cases do not extend absolute immunity to all officers who engage in necessary official
acts. Rather, immunity from suit under § 1983 is “predicated upon a considered inquiry
into the immunity historically accorded the relevant official at common law and the
interests behind it,” Imbler v. Pachtman, 424 U.S. 409, 421, 96 S.Ct. 984, 990, 47
L.Ed.2d 128 (1976), and officials seeking absolute immunity must show that such
immunity is justified for the governmental function at issue, Burns v. Reed, 500 U.S. 478,
486-487, 111 S.Ct. 1934, 1934, 114 L.Ed.2d 547 (1991).
Hafer v. Melo, 502 U.S. 21, 28-29 (1991). Thus, the Court has held that such absolute immunity has been
extended only to a “very limited” class “‘whose special functions or constitutional status requires complete
protection from suit.’” Id. at 29 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982)). This class
includes the President of the United States, legislators carrying out their legislative functions, and judges
carrying out their judicial functions. Obviously, none of the Appellees fit in this category.
20
complaint, Chang alleged breach of contract, seeking damages and equitable relief from the
aforementioned parties. She had a meaningful post-deprivation remedy and therefore was
not entitled to pursue a claim under § 1983 and the trial court did not err in granting summary
judgment in favor of Appellees on that count. See Hudson v. Palmer, 468 U.S. 517.
3.
Chang contends that the actions described in our discussion of Issue 2 above also
constituted a violation of her due-process rights under article 1, section 12 of the Indiana
Constitution. Specifically, under Count II of her amended complaint, Chang alleged that her
dismissal from the nursing department violates section 12’s guarantee that “[a]ll courts shall
be open; and every person, for injury done to him in his person, property, or reputation, shall
have remedy by due course of law.” Pursuant to this claim, Chang sought monetary damages
from Sternberger, Finke, Meyer, and Connell and injunctive relief with respect to Purdue, the
Trustees, Cordova, and Wartell. Chang contends that the trial court erred in refusing to grant
her motion for summary judgment with respect these claims.
Chang’s argument with respect to article 1, section 12 consists almost entirely of cases
discussing the federal Due Process Clause. We say “almost” because Chang cites this court’s
opinion in Lake Ctr. Sch. Corp. v. Scartozzi, 759 N.E.2d 1185 (Ind. Ct. App. 2001) for the
proposition “that the 14th Amendment to the U.S. Constitution has been construed by the
courts as analogous to the federal due process clause.” Appellant’s Brief at 33. We assume
that Chang meant that article 1, section 12 has been so construed. Although there is language
in Scartozzi to that effect, our Supreme Court has determined that this is not the case.
21
In Sanchez v. State, 749 N.E.2d 509, 515 (Ind. 2001), the Court clarified that “the state
constitutional right in Article I, Section 12 and federal due process are not necessarily
identical.” Undoubtedly, it is primarily for this reason that “[q]uestions arising under the
Indiana Constitution” are to be resolved “by examining the language of the text in the context
of the history surrounding its drafting and ratification, the purpose and structure of our
constitution, and case law interpreting the specific provisions.” Indiana Gaming Comm’n v.
Moseley, 643 N.E.2d 296, 298 (Ind. 1994). “Where a party, though citing Indiana
constitutional authority, presents no separate argument specifically treating and analyzing a
claim under the Indiana Constitution distinct from its federal counterpart, we resolve the
party’s claim ‘on the basis of federal constitutional doctrine[.]’” Myers v. State, 839 N.E.2d
1154, 1158 (Ind. 2005) (quoting Williams v. State, 690 N.E.2d 162, 167 (Ind. 1997)), cert.
denied, 547 U.S. 1148 (2006). We have already rejected Chang’s claims under the federal
Due Process Clause in Issue 2, and need not repeat that analysis here. Chang’s claim under
article 1, section 12 fails.
4.
Chang contends the trial court erred in dismissing her claims of tortious interference
with Chang’s contract and property rights under Counts V and VI. Under Count V, Chang
alleged that Finke, Meyer, Sternberger, and O’Connell committed tortious interference of her
property rights. Under Count VI, Chang alleged that Finke, Meyer, Sternberger, and
O’Connell committed tortious interference with her contractual rights. The trial court
granted summary judgment against Chang on grounds that she had failed to comply with the
22
notice provisions of the Indiana Tort Claims Act (ITCA).
The ITCA governs lawsuits against political subdivisions and their employees.4 Irwin
Mortg. Corp. v. Marion Cnty. Treasurer, 816 N.E.2d 439 (Ind. Ct. App. 2004). The ITCA
provides that a claim against a political subdivision is barred unless notice is filed with (1)
the governing body of the political subdivision and (2) the Indiana Political Subdivision Risk
Management Commission, within 180 days after a loss occurs. I.C. § 34-13-3-8. For
purposes of the ITCA, a state college or university is a political subdivision. Ind. Code Ann.
§ 34-6-2-110(7) (West, Westlaw current through 2012 2nd Reg. Sess.). Where a plaintiff
elects to sue a governmental employee in his or her individual capacity, “notice is required
only if the act or omission causing the plaintiff’s loss is within the scope of the defendant’s
employment.” Bienz v. Bloom, 674 N.E.2d 998, 1004 (Ind. Ct. App. 1996). The ITCA
provides substantial immunity for conduct within the scope of a public employee’s
employment “to ensure that public employees can exercise the independent judgment
necessary to carry out their duties without threat of harassment by litigation or threats of
litigation over decisions made within the scope of their employment.” Irwin Mortg. Corp. v.
Marion Cnty. Treasurer, 816 N.E.2d at 445. Compliance with the ITCA is a question of law
for the court to decide. Irwin Mortg. Corp. v. Marion Cnty. Treasurer, 816 N.E.2d 439.
As a preliminary matter, we think it clear that the conduct of which Chang complains
was within the scope of Fink’s, Meyer’s, Sternberger’s, and O’Connell’s employment. “[I]n
4
In Poole v. Clase, 476 N.E.2d 828 (Ind. 1985), our Supreme Court determined that the ITCA applies not
only to political subdivisions, but to employees of political subdivisions as well.
23
order for an employee’s act to fall ‘within the scope of employment,’ the injurious act must
be incidental to the conduct authorized or it must, to an appreciable extent, further the
employer’s business.” Barnett v. Clark, 889 N.E.2d 281, 283 (Ind. 2008) (quoting
Celebration Fireworks, Inc. v. Smith, 727 N.E.2d 450, 453 (Ind. 2000)). All of the allegedly
injurious actions upon which Chang’s tort claims against the individual defendants were
based were performed squarely within the context of their roles as professors and
administrators at IPFW. To review, Chang sued Finke, the Dean of IPFW’s CHHS, Meyer,
professor and Director of Undergraduate Programs for the Department of Nursing,
Sternberger, Chair of the Department of Nursing, and O’Connell, a former professor in the
Department of Nursing and IPFW’s Associate Chancellor for Academic Affairs, for their
actions, described in detail above, in Chang’s dismissal and subsequent efforts to appeal that
dismissal. She alleged that they disregarded her testimony and other evidence in pursuing
and affirming her dismissal, and that such wrongfully infringed upon her property right to
obtain an education at IPFW. It is difficult to imagine a clearer example of action undertaken
in an educator’s official capacity. Thus, Chang was required to comply with the notice
requirements of the ITCA in prosecuting her claims against Fink, Meyer, Sternberger, and
O’Connell under Counts V and VI.
The individual appellees filed for summary judgment on these counts on the basis that
Chang failed to serve them with the requisite notice under the ITCA. There seems to be no
disagreement as to whether Chang sent formal notice of her claims against IPFW; she did
not. She contends, however, that she substantially complied with the notice requirements of
24
the ITCA.
I.C. § 34-13-3-10 (West, Westlaw current through 2012 2nd Reg. Sess.) provides:
The notice required by sections 6, 8, and 9 of this chapter must describe in a
short and plain statement the facts on which the claim is based. The statement
must include the circumstances which brought about the loss, the extent of the
loss, the time and place the loss occurred, the names of all persons involved if
known, the amount of the damages sought, and the residence of the person
making the claim at the time of the loss and at the time of filing the notice.
“In general, the cause of action of a tort claim accrues and the statute of limitations begins to
run when the plaintiff knew or, in the exercise of ordinary diligence, could have discovered
that an injury had been sustained as a result of the tortious act of another.” Filip v. Block,
879 N.E.2d 1076, 1082 (Ind. 2008) (quotation omitted). “[N]otice is sufficient if it
substantially complies with the content requirements of the statute.” Collier v. Prater, 544
N.E.2d 497, 499 (Ind. 1989). In determining whether substantial compliance is established,
we look to the purpose of the notice requirements, which is “to inform state officials with
reasonable certainty of the accident or incident and surrounding circumstances and to advise
of the injured party’s intent to assert a tort claim so that the state may investigate, determine
its possible liability, and prepare a defense to the claim.” Irwin Mortg. Corp. v. Marion Cnty.
Treasurer, 816 N.E.2d at 446 (quoting Garnelis v. Ind. State Dep’t of Health, 806 N.E.2d
365, 368 (Ind. Ct. App. 2004)). The claimant bears the burden of establishing substantial
compliance. Irwin Mortg. Corp. v. Marion Cnty. Treasurer, 816 N.E.2d 439 (Ind. Ct. App.
2004). Substantial compliance with the notice requirement of the ITCA is a question of law.
Rudnick v. N. Ind. Commuter Transp. Dist., 892 N.E.2d 204 (Ind. Ct. App. 2008), trans.
25
denied.
Chang contends that she substantially complied with the notice requirement because:
(1) on March 24, 2009, she sent a letter to Chancellor Wartell claiming that IPFW had
violated Chang’s due process rights, as described above, and that Wartell should recuse from
participation in the review of Chang’s dismissal; (2) on April 24, 2009, Chang sent a letter to
Cordova, President of Purdue University, informing her that Chang’s due process rights had
been violated and “asking several questions” of her, Appellant’s Brief at 36; and (3) “after no
action on behalf of Purdue, a demand letter was sent on June 25, 2009 to Purdue as requested
by Purdue.” Id. at 37.
We can readily dismiss the claim that the March 24 and April 24 letters satisfied the
ITCA’s notice requirement. The purpose of the letter to Wartell was expressly identified in
the body of the letter as follows: “The purpose of this letter is to offer IPFW a chance to
resolve this matter before this matter moves on to the next public phase of the due process
appeal process.” Appellant’s Brief at 65. The remainder of the letter confirms that the
subject of the letter was confined to the then-ongoing appeal of Chang’s dismissal via the
university appeals process. The letter to Cardova was a lengthy missive that was, in
substance, part interrogatories 5 and part critique of the University’s actions in conjunction
with Chang’s dismissal from the nursing program and the subsequent appeal process. Both
5
Attorney Roelke posed four questions to Cordova. The fourth question is illustrative of the tenor of the
other three: “My fourth question to you, Dr. Cordova, is what is the University’s policy concerning police
reports, especially those investigated by the campus police department where there is no finding of credible
evidence which are placed in the student’s file by the complainant and the Chair of the Nursing Department?”
Appellant’s Appendix at 70.
26
letters functioned almost entirely to advocate Chang’s positions with respect to the appeal
process at IPFW and certainly did not communicate an intent to file a tort claim.
We now turn our attention to the demand letter. It is true that the letter advised
Appellees’ counsel that Chang had authorized her counsel to file a lawsuit on her behalf, and
also set forth a list of Chang’s demands. In fact, that is all it contained, and this is not
enough. The statutory standard form and content of the notice required by the ITCA are set
out in I.C. § 34–13–3–10, which provides that the notice
must include the following information in a short and plain statement: (1)
[T]he circumstances that brought about the loss, (2) the extent of the loss, (3)
the time and place the loss occurred, (4) the names of all persons involved if
known, (5) the amount of damages sought, and (6) the residence of the person
making the claim at the time of the loss and at the time of filing the notice.
Fowler v. Brewer, 773 N.E.2d 858, 864 (Ind. Ct. App. 2002), trans. denied. The demand
letter did not include any information relative to items (1), (3), (4), and (6). We understand
that Chang might well respond that Appellees were by then familiar with the situation and
already knew all of that information. We have held, however, “that independently acquired
knowledge or routine investigation of an occurrence was insufficient to show substantial
compliance with the notice statute.” Id. (finding no substantial compliance where plaintiff’s
attorney sent a letter to the defendant’s insurer informing it only of the fact of representation
and that the claim was for damages incurred on the date of the relevant accident). Moreover,
I.C. § 34-13-3-10 requires that the requisite notice be hand-delivered or sent by certified or
registered mail. There is no indication of how this letter was delivered to Appellees’
attorney. See Fowler v. Brewer, 773 N.E.2d 858.
27
Finally, we note that I.C. § 34-13-3-8 provides that notice must be delivered not only
to the governmental entity in question, but also to the Indiana Political Subdivision Risk
Management Commission. 6 Again, we find no indication in the materials before us that this
was accomplished. More problematically, there is no indication that Chang even attempted
to comply with the ITCA’s notice requirement statute. To the extent that her written
communications with various entities and individuals associated with Appellees conveyed the
required information, it apparently was done without regard to the ITCA. In fact, we can find
no indication that Chang even contemplated the ITCA’s notice requirement until Appellees
challenged some of her claims for relief on that basis. “While this court has interpreted the
notice statutes to allow substantial compliance when a claimant has taken affirmative steps to
notify the governmental entity, we cannot find substantial compliance when the claimant
took no steps whatsoever to comply with the notice statute[.]” Brown v. Alexander, 876
N.E.2d 376, 383 (Ind. Ct. App. 2007) (emphasis supplied), trans. denied.
We stress that this is not a case where a claimant sought to comply with the ITCA’s
notice requirement provisions, but fell short. The present case involves more than a mere
technical shortcoming. It appears instead that Chang did not consider the ITCA, and
particularly its requirements governing notice. The trial court did not err in granting
summary judgment in favor of Fink, Meyer, Sternberger, and O’Connell on Counts V and VI.
6
The Indiana Political Subdivision Risk Management Commission was “created as a separate body
corporate and politic, constituting an instrumentality of the state for the public purposes set out in this
chapter, but not a state agency.” Ind. Code Ann. § 27-1-29-5 (West, Westlaw current through 2012 2nd
Reg. Sess.). Its purpose “is aiding political subdivisions in protecting themselves against liabilities.” Id.28
5.
The trial court granted Appellees’ pretrial motion in limine, which sought exclusion
of, among other things, “[u]nrelated complaints, charges or lawsuits initiated by other IPFW
students or employees.” Appellant’s Appendix at 61. Pursuant to this ruling, the trial court
did not permit Chang to call witnesses Chris Mertz, who was suspended from class at IPFW
for unprofessional conduct and violations of the IPFW Disciplinary Code, and Grace Decker,
who witnessed the October 30, 2008 incident that led to Chang’s dismissal from the
Department of Nursing, College of Health and Human Services. Chang contends the trial
court erred in excluding these witnesses.
Trial courts enjoy broad discretion in ruling on the admissibility of evidence. W.S.K.
v. M.H.S.B., 922 N.E.2d 671 (Ind. Ct. App. 2010). We review such rulings for an abuse of
discretion and the trial court’s decisions in this respect are afforded great deference on
appeal. Whiteside v. State, 853 N.E.2d 1021 (Ind. Ct. App. 2006). An abuse of discretion
occurs where the trial court’s decision is clearly against the logic and effect of the facts and
circumstances before it. Id. In reviewing the admissibility of evidence, we consider only the
evidence in favor of the trial court’s ruling and any unrefuted evidence in the defendant’s
favor. Id.Mertz was a CHHS student at IPFW who was suspended from class because of an
alleged violation of CHHS’s “Human Services Code of Ethics.” Transcript at 370. After the
jury had been excused, Chang proffered Mertz’s testimony. He described, in general terms,
the reason he had been dismissed and the procedures he had initiated to successfully appeal
29
that dismissal. He detailed the participation of several of the same administrators and school
officials who were involved in Chang’s dismissal and appeal. The gravamen of his
complaint was that IPFW had failed to follow procedures set out in, inter alia, Part II of the
IPFW Code, entitled “Student Conduct Subject to Disciplinary Action.” Id. at 364.
We note that although Mertz was CHHS student, he was not enrolled in the nursing
program, as Chang was. His dismissal was premised upon an alleged violation of a different
code (Human Services Code of Ethics) than was Chang’s (Department of Nursing
Professional Misconduct policy). The two codes implicated different procedural
mechanisms. Moreover, we have already held that Chang’s due process rights were not
violated by virtue of the procedures employed in her case. We agree with the trial court that
Mertz’s situation, although perhaps superficially similar to Chang’s, differed in significant
ways such that his testimony would have little or no relevance to Chang’s claims. The trial
court did not err in excluding Mertz’s testimony.
Grace Decker was a nursing student at IPFW. She was present at the incident that led
to Chang’s dismissal. Chang sought to call Decker as a witness at trial, explaining that
Decker would testify about her perspective of the incident. Appellees objected and the trial
court sustained the objection, explaining:
We’re not getting into that Mr. Roelke. That’s not the issue before the jury. I
have allowed some leeway to give the jury context of the dispute and that
context, I think has been sufficient. We are not here to re-litigate whether or
not the Department made the correct decision. That’s not the issue before this
Court so we’re – if all she’s doing is offering evidence as to the incident then
no, I’m not going to allow that.
30
Transcript at 403. In substantive terms, the trial court excluded Decker’s testimony on the
ground that it was irrelevant.
Rule 402 of the Indiana Rules of Evidence provides: “Evidence which is not relevant
is not admissible.” “‘Relevant evidence’ means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.” Evid. R. 401. We review a trial
court’s exclusion of evidence on grounds of relevance for an abuse of discretion. Carlson v.
Warren, 878 N.E.2d 844 (Ind. Ct. App. 2007).
We reiterate here that the two issues presented to the jury were: (1) what were the
nature and terms of the contractual agreement between Chang and Purdue University, and (2)
did Purdue breach its contract with Chang by failing to follow proper procedures in
dismissing Chang? Chang contends that Decker’s testimony was relevant “to rebut the
factual mistakes concerning the second student alleged to have been threatened which was
both testified to and found in the documents such as the dismissal letter of Sternberger.”
Appellant’s Brief at 40. We are hard-pressed to discern how further development of the
evidence relative to the facts surrounding the incident implicates the questions before the jury
– i.e., what procedures was IPFW contractually bound to follow in pursuing the ensuing
disciplinary proceeding, and were those procedures followed? Decker’s proposed testimony
would not have aided the jury in answering those questions. The trial court did not err in
excluding Decker’s testimony.
Judgment affirmed.
31
NAJAM, J., and BRADFORD, J., concur.
32