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Barrios v. Elmore

United States District Court, W.D. Kentucky, Louisville Division

January 2, 2020

FRANCIS BARRIOS, Plaintiff,
v.
CALEB ELMORE, Defendant.

          MEMORANDUM OPINION AND ORDER

          DAVID J. HALE, JUDGE, UNITED STATES DISTRICT COURT

         Plaintiff Francis Barrios, a former professor at Bellarmine University, alleges that a Bellarmine student, Defendant Caleb Elmore, threatened to kill him and destroy his career. (Docket No. 52, PageID # 862) This Court granted Elmore's motion to dismiss as to all but three claims: terroristic threatening, assault, and intentional infliction of emotional distress. (D.N. 15) Elmore now moves for summary judgment on the remaining claims. (D.N. 49) For the reasons set forth below, the motion for summary judgment will be denied.

         I.

         While an undergraduate student at Bellarmine, Elmore worked as a research assistant for Barrios, a chemistry professor. (D.N. 52, PageID # 861) On September 6, 2017, Elmore and Barrios met on campus in Barrios's office. (Id.; D.N. 48, PageID # 502) Another student in the room joined in the conversation between Barrios and Elmore as well. (D.N. 48, PageID # 502) Elmore informed Barrios that he intended to seek “double credit” for an upcoming foreign study course. (D.N. 52, PageID # 861) Barrios advised Elmore that he would not support “such a scheme” and that Elmore “need[ed] to be careful with double-dipping.” (Id.; D.N. 48, PageID # 508) According to Barrios, Elmore became increasingly agitated and hostile, threatening to destroy Barrios's career and telling him: “Listen mother f***er, if you f*** with my future I'll put a knife . . . up your throat” and “Don't f*** with me because I will kill you.” (D.N. 48, PageID # 510) Elmore also said that he would do everything possible to get Barrios fired if he “f***ed with [Elmore's] future, ” that Elmore was going to “rain down” on Barrios, and that the “only double-dipping [Barrios] would see was frying fries at McDonald's.” (Id., PageID # 511) Barrios says that while stating these threats, Elmore sat on the edge of his chair simultaneously making a motion depicting a knife going up his throat. (Id., PageID # 510)

         Once the incident was over, Elmore grabbed his computer and walked to the lab behind Barrios's office. (Id., PageID # 511) According to Barrios, as Elmore left the lab, he stopped and said to Barrios one more time, “Don't f*** with me” and “You better not f*** with my future.” (Id., PageID # 513) Barrios testified that because he was unsure of what to do next, he did not call for help that day and did not make any effort to find the chair of the chemistry department, Dr. Patrick Holt. (Id., PageID # 513, 515) Instead, Barrios went back to his office, collected his belongings, and went home. (Id., PageID # 513) Barrios responded affirmatively when asked whether the incident made him concerned that Elmore was going to do something similar to the mass shooting incidents described in his complaint. (D.N. 48, PageID # 419) Barrios explained that he felt this way because of how Elmore reacted and the way Elmore left at the end of the encounter. (Id., PageID # 418-49)

         Barrios emailed Elmore later that day. (D.N. 48-15, PageID # 804) In his September 6 email to Elmore, Barrios said:

After today's incident in my office, I'm honestly not sure if I feel comfortable being the research advisor of a student who has threatened to get me fired. I don't think your conduct was acceptable in my office, [e]specially when you called me names in front of another student. If you want to talk about this, please let me know before we move on to the next steps.

(Id.) Barrios testified that he did not mention the physical threat because he “wasn't planning on meeting with [Elmore] one[-]on[-]one” and did not want to “seed in [Elmore's] head the idea that he could actually hurt me again.” (D.N. 48, PageID # 521) Soon after he sent Elmore the email, Barrios changed his mind and was no longer willing to meet with Elmore. (Id., PageID # 519)

         The next day, Barrios reached out to the other student who was present in his office during the incident. (Id., PageID # 516) When asked whether she remembered the “double-dipping” conversation with Elmore, the student responded: “Not exactly, but I remember parts and that [Elmore] said a few things that were very uncalled for.” (D.N. 48-13, PageID # 801) In her statement, the student witness recalled that Elmore got very upset during the meeting and “started making threats of things he would do if Dr. Barrios prevented him from fulfilling both credits with his class.” (D.N. 52-1, PageID # 876) She further stated that “[Elmore] made numerous threats which seemed to go on for an unusually long amount of time” and that she is certain that she remembers Elmore saying “it would rain down on [Barrios], ” that “[Barrios] would no longer have a job here, ” that Elmore would kill Barrios, and that Elmore called Barrios a “motherf***er during his rant.” (Id.) The student said she was not surprised when she received an email from Barrios about the situation because the “conversation sat heavy in [her] mind and [she] assumed that the conversation had been on Dr. Barrios'[s] mind as well.” (Id.) While the student did not specifically remember Elmore saying he would hold a knife to Barrios's throat, she said that it would not surprise her if this were one of the threats made because she was certain she heard Elmore say he would kill Barrios. (Id.)

         Barrios also reached out to Holt on the evening of September 7, 2017. (D.N. 48-3, PageID # 604) According to Holt, Barrios called him and described a conversation in which Elmore first said that he would see to it that Barrios was fired and then threatened to kill him, saying that he would hold a knife to Barrios's throat. (Id.) In his statement, Holt explained that Barrios decided to call him to determine how to proceed “[a]fter thinking this over for a day, ” and that Barrios told him that he feared for his life and did not feel comfortable having Elmore work in his research lab. (Id.) According to Holt, it seemed clear that Barrios was frightened and was fearful of retaliation. (Id.)

         Barrios emailed Elmore again the following day, September 8, 2017, saying that he was willing to set up a meeting between Elmore and Holt. (D.N. 48, PageID # 524) According to Barrios, the meeting was scheduled for September 11, 2017, but Barrios changed his mind and postponed the meeting, saying that he “didn't feel comfortable being with [Elmore] in the same room.” (Id., PageID # 525) Holt met with Elmore on September 13, 2017, and advised him that Barrios no longer felt comfortable serving as his research advisor. (D.N. 52, PageID # 862) Holt asked Elmore to voluntarily withdraw from the research project and to refrain from contact with Barrios, but Elmore refused. (Id.) Holt then advised the Dean of Students, Dr. Sean McGreevey, of these events and Elmore's refusal to withdraw from the research project. (Id.) Holt and McGreevey advised Barrios that his only alternative was to file a formal incident report. (Id.)

         Barrios filed a formal statement with McGreevey on September 23, 2017, saying that although he wanted to let the incident go and not tell anyone, the more he thought about Elmore's disturbing words, the more uncomfortable he felt. (D.N. 48-21, PageID # 815) In describing how the incident affected him, Barrios said:

This incident has changed the way I do things at work. Coming in for work is not the same anymore, being in my office doesn't feel right, walking in the hallways is just uncomfortable and even having lunch . . . is not enjoyable anymore. As suggested by [other faculty], I will be seeking counseling to help me get over this situation.

(Id.) Barrios says that he decided to file the formal incident report for his “own protection and for the protection of others at Bellarmine” and because he was concerned about Elmore's “stability and propensity for threatening behavior and/or violence, and how that might further manifest itself going forward.” (D.N. 48-1, PageID # 579)

         On September 25, 2017, Barrios filed a formal complaint with Bellarmine alleging that Elmore violated the Student Code of Conduct by threatening to kill him, and Bellarmine promptly began a formal investigation. (D.N. 49, PageID # 833) Barrios said that he initially decided not to be present during Elmore's hearing process, but later changed his mind and decided to participate. (D.N. 52, PageID # 534) He testified that he agreed to be a part of the conference call so long as he was not in the same room as Elmore. (D.N. 48, PageID # 535) Barrios told McGreevey that he changed his mind because it seemed as though his participation was important, and he apologized for being “somewhat difficult during the process, ” explaining that “this entire event has just been very stressful.” (D.N. 48-22, PageID # 817)

         On October 5, 2017, Elmore filed a complaint under Bellarmine's Sexual Misconduct Policy alleging that Barrios sexually harassed him. (D.N. 49, PageID # 834) Specifically, Elmore claimed that Barrios retaliated against him “for not returning Barrios's obvious sexual overtures.” (D.N.48-3, PageID # 586) Bellarmine deferred its investigation into Barrios's report pending an investigation into Elmore's harassment claims. (D.N. 52, PageID # 863) Upon completion of its investigation, however, Bellarmine determined that Elmore could not sustain his claims of harassment. (Id.) After it resumed its investigation into Barrios's report, the university concluded that Elmore had threatened violence. (Id., PageID # 864) Barrios was fired by Bellarmine on December 21, 2017, however, for engaging in an inappropriate relationship[1] with Elmore and for failing to report Elmore's previous threats against another Bellarmine professor.[2] (D.N. 48-2, PageID # 583)

         When asked to describe in detail the damages he suffered as a result of Elmore's threats, Barrios said that in addition to having anxiety:

I'm paranoid. I fear for my life. I feel like . . . people are watching me, that I'm going to get hurt eventually at some point. I don't feel safe [in] the places that I go. I think about it every night. I cannot sleep. . . . .
I don't trust people. I'm always looking behind my shoulder. I see something suspicious. I think people are on to me. If just a random car parks by me and looks at me I think . . . they are going to do something to me. If I see random cars just driving by my home, I think . . . they are just looking to see where I live and watching me.

(D.N. 48, PageID # 424-26) Barrios testified that these feelings occur every day and “last[] all the time, ” attributing these symptoms solely to the September 6 incident. (Id., PageID # 427) Barrios says the incident has also affected his memory, ability to concentrate, and energy level, as he does not sleep well and is always tired during the day. (Id., PageID # 429)

         Barrios first went to see his family physician, Dr. Sheri Weber, in June 2018 about the mental distress he claims to have suffered as a result of Elmore's actions. (Id., PageID # 399) Barrios said that he did not have the opportunity to speak to any doctors about his mental distress prior to that point because he was unemployed and without health insurance. (D.N. 48, PageID # 399) Barrios explained that although he had health insurance while still employed at Bellarmine in September 2017 (id., PageID # 400), he did not see a doctor at that time because as he was “waiting for things to happen” and “looking for information, where to go, that's when [Elmore] filed his sexual harassment claim.” (Id., PageID # 401-02) When Barrios discussed possible depression with Weber on June 6, 2018, Weber noted that Barrios's mood and affect were normal and did not prescribe any medication or therapy. (D.N. 49, PageID # 839) Barrios's medical records from a later visit in September 2018 state that the purpose of his visit was “to discuss mental[-]illness concerns” and to “start something for his stress.” (D.N. 49-1, PageID # 849) During that visit, Weber diagnosed Barrios with situational depression; prescribed him an antidepressant, which he still takes; and referred him to a social worker for therapy. (D.N. 48, PageID # 404; D.N. 49-1, PageID # 849-51)

         Barrios first saw a therapist in October 2018. (D.N. 48, PageID # 433) Barrios explained that he did not try to see a therapist sooner because he thought he “could handle it [him]self and [he] could get over it [him]self as well.” (Id., PageID # 403) Barrios also said that he did not ask for a referral the first time he went to visit his primary doctor because the doctor thought Barrios might have lymphoma, and so his “attention and energy w[ere] put into that, into trying to figure out th[o]se health issues.” (Id., PageID # 433) According to Barrios, he “hit bottom” in October 2018 after “several months and months and months of trying to deal with it by [him]self and . . . the longer or the more time it took or as time passes, [it] just got worse and worse instead of getting better.” (Id., PageID # 435-36) Barrios said that once it got to this point, he went to his primary care doctor and told her, “I cannot handle this anymore . . . I need help.” (Id., PageID # 437) The notes in Barrios's patient records state that Barrios has “possible PTSD-type issues, ” though his therapist has not discussed this with him. (Id., PageID # 439-40) The notes also say “rule out trauma, PTSD.” (Id., PageID # 440) The notes include, in the doctor's “handwriting, an observation that Barrios “ha[d] suicidal thoughts.” (Id., PageID # 438) Barrios confirmed that he has suicidal thoughts, but he testified that he has no plans to act on them. (Id.)

         Elmore has obtained an expert opinion from Dr. Timothy Allen, a forensic psychiatrist, who disagrees with Barrios as to the cause of his symptoms.[3] (D.N. 38-1) Allen found it “difficult to believe, and contrary to my experience of thousands of individuals who have experienced life-threatening situations, that a single verbal threat from an angry teenager that allegedly occurred on September 6, 2017, continued to affect Dr. Barrios as of his deposition [in] October 2018, to a substantial degree.” (Id., PageID # 287) Allen found the “much more likely causative factor for any psychiatric diagnosis” to be Barrios's “dismissal from his faculty position.” (Id.) Allen explained in his report that

[t]he loss of the possibility of attaining lifelong professional goals and the abrupt transition of his professional potential was a difficult situation tantamount to a loss which people grieve, not unlike the death of a loved one. Such loss is ...

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