Fosu v. University of Rhode Island

OCR transcription for search; preserved printed pages are authoritative

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

LOUIS KWAME FOSU,
Plaintiff,

Vv.

THE UNIVERSITY OF RHODE
ISLAND; THE UNIVERSITY OF
RHODE ISLAND BOARD OF
TRUSTEES; DAVID M. DOOLEY,
PRESIDENT; DONALD DEHAYHES,
Provost and Vice President of Academic
Affairs; and JEANNETTE E. RILEY,
Dean, College of Arts and Sciences, in
their individual and official capacities,
Defendants.

C.A. No. 21-279-JJM-PAS

al a

MEMORANDUM AND ORDER
JOHN J. MCCONNELL, JR., United States District Court Chief Judge.

Professor Louis Kwame [osu has sued The University of Rhode Island (“URI”)
and URI’s Board of Trustees, URI President David M. Dooley, URI Vice President
Donald DeHayes, and URI Dean Jeannette E. Riley, individually and in their official
capacities as agents and employees of URI, alleging that Defendants terminated his
employment with URI in violation of his constitutional rights. Defendants move to
dismiss Counts II! through VII of Mr. Fosu’s Complaint under Federal Rule of
Procedure 12(b)(6) for failure to state a claim. ECF No. 6. For the following reasons

the Court DENIES IN PART and GRANTS IN PART Defendants’ Motion to Dismiss.

1 Defendants do not seek dismissal of Count I, Violation of Plaintiffs First
Amendment Right to Freedom of Speech — Retaliation, under 42 U.S.C. § 1983.

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I, BACKGROUND

The Court briefly summarizes the relevant facts in the light most favorable to
the non-moving party, Mr. Fosu. Brenkowskr v. Northeastern Univ., 285 F.3d 138,
140 (1st Cir. 2002).

In the Fall of 2018, URI recruited Mr. Fosu as a Visiting Professor for URI’s
Honors Program, My. Fosu taught classes in leadership and political science and
assisted students in their advocacy pursuits. ECF No. 1 at 9, { 44. Myr. Fosu’s
performance in this position motivated URI to hire him as a “Faculty of Practice” in
its Political Science Department. Mr. Fosu accepted this position in part because of
URI’s stated commitment to diversity. He received and signed an offer letter dated
July 1, 2019 (“Offer Letter”), ECF No. 1-2. The Offer Letter stated that URI
appointed Myr, Fosu for the 2019-2020 academic year with possible yearly
reappointments through 2024-2025, “following an annual evaluation/review of
teaching and student advising performance and depending on funding and
availability of the position.” /d at 1. Additionally, the terms of Mr. Fosu’s
appointment were also subject to the “University Manual” and the terms of URI’s
Collective Bargaining Agreement (“CBA”). Jd.

After his first year of service, URI renewed Mr. Fosu’s contract for the 2020-
2021 academic year, In the Fall of 2020, Mr. Fosu began teaching a class on political
advocacy. In this class, he and his students created a nonprofit institution called the
Diversity Think Tank (“DTT”) to enact policy changes at URI and in the surrounding

community. Students and faculty joined the DTT in support of its commitment to

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address systematic racism, Mr. Fosu and the DTT members electronically published
a “Declaration of Diversity” (“Declaration”). Mr. Fosu sent the Declaration to URI
officials including Mr. Dooley, Mr. DeHayes, Ms. Riley, and URI’s Board of Trustees.
The Declaration expressed the authors’ opinions on systemic racism, URI’s lack of
diversity, and racial inequity.

My. Fosu asserts that this is when Defendants began to retaliate against him
for his advocacy and speech, The morning after Mr. Fosu sent the Declaration to URI
officials, he received an email from Ms. Riley concerning a student complaint about
his email communications. When he requested a meeting with her to discuss this
complaint, he was told that a meeting was unnecessary. Mr. Fosu asked Mr, Dooley
and Mr. DeHayes to sit in on his class but they declined, noting that they believed
the opinions in the Declaration were his alone and that they “were not willing to
participate in this exercise which primarily appears to be designed to promote your
agenda” in the class. ECF No, 7-5 at 2.

On January 11, 2021, without prior notice to Mr. Fosu, Mr. DeHayes informed
him that URI had placed him on administrative leave, claiming that he was hostile
towards his students and demeaned his colleagues. URI did not give him an
opportunity to rebut any of these complaints or allegations. No other professors
accused of serious misconduct or who have made provocative public statement had

been punished with administrative leave. Three months after Mr. Fosu was placed

on adininistrative leave, URI began an investigation into Mr. Fosu’s conduct. He

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links this investigation with Defendants’ retaliation and believes it was pretextual
and used to conceal Defendants’ retaliation.

On May 11, 2021, URI terminated Mr. Fosu. He alleges that Defendants’
conduct has damaged his career, his employment prospects, and his record as a
political science teacher, making it much more difficult for him to obtain gainful
employment in this field. Myr. Fosu filed this suit, seeking declaratory, injunctive,
and monetary relief.

Defendants move to dismiss Counts II through VII of the Complaint, which
Mr. Fosu opposes. Following briefing on the motion, Mr. Fosu has consented to the
dismissal of Count IV (the anti-discrimination clause of Article 1, Section 2, of the
Rhode Island Constitution), Mr, Fosu also consents to the dismissal of Count VII
against the URI officials in their individual capacities only.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) tests the plausibility of the claims
presented in a plaintiffs complaint. “To avoid dismissal, a complaint must provide ‘a
short and plain statement of the claim showing that the pleader is entitied to relief.”
Gareia-Catalin v. United States, 734 F.3d 100, 102 (st Cir, 2018) (quoting Fed. R.
Civ. P. 8(a)(2)). At this stage, “the plaintiff need not demonstrate that she is likely to
prevail, but her claim must suggest ‘more than a sheer possibility that a defendant
has acted unlawfully.” Jd. at 102-03 (quoting Ashcroft v. Igbal, 556 U.S. 662, 678

(2009)). The “complaint must contain sufficient factual matter, accepted as true, to

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‘state a claim to relief that is plausible on its face.” Jgba/ 556 U.S. at 678 (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

“The plausibility inquiry necessitates a two-step pavane.” Garcia-Catalan, 734
F.3d at 103. “First, the court must distinguish ‘the complaint’s factual allegations
(which must be accepted as true) from its conclusory legal allegations (which need
not be credited).” Jd. (quoting Morales-Cruz v. Univ. of PR., 676 F.3d 220, 224 (1st
Cir. 2012)). “Second, the court must determine whether the factual allegations are
sufficient to support ‘the reasonable inference that the defendant is liable for the
misconduct alleged.” Jd. (quoting Haley v. City of Boston, 657 ¥.3d 39, 46 (ist Cir,
2011). “In determining whether a complaint crosses the plausibility threshold, ‘the
reviewing court [must] draw on its judicial experience and common sense.” /d.
(alteration in original) (quoting Jgba/, 556 U.S. at 679).
IH. DISCUSSION

A. Count II — § 1983 Due Process Claim

In Count II of the Complaint, Mr. Fosu alleges that Defendants violated his
Fourteenth Amendment right to procedural due process by not affording him a
hearing or an opportunity to be heard before he was put on administrative leave or
before he was terminated. In asserting his right to due process, Mr. Fosu asserts that
he had a constitutionally protected property interest in his continued employment.
URI counters that Mr. Fosu had no protected property interest in continued
employment because his contract and the CBA are clear that his contract was for a

one*year term that was renewable.

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To state a procedural due process claim, a plaintiff must demonstrate “{1] ‘a
property interest as defined by state law’ and [2] that the defendants deprived him]
of this property interest without constitutionally adequate process.” Garcia-Rubiera
v, Fortuzio, 665 F.3d 261, 270 (1st Cir. 2011) (quoting SFW Arecibo, Ltd. v. Rodriguez,
415 F.3d 135, 1389 (ist Cir. 2005)). With respect to the first prong, a plaintiff may
have a protected property interest in continued employment if “he has a reasonable
expectation, arising out of a statute policy, rule, or contract, that he will continue to
be employed.” Wojcik v. Mass. State Lottery Comm’n, 300 F.8d 92, 101 (1st Cir.
2002).

In this case, Mr. Fosu worked under a contract with URI. The Court looks to
the terms of his Offer Letter and the CBA to determine whether his expectation in
continued employment was reasonable as they both define the terms of Mr. Fosu’s
employment as a Faculty of Practice.2 The Offer Letter reads, “[the Faculty of
Practice appointment] is a one-year position with possible annual reappointments
through 2024-2025 following an annual evaluation/review of teaching and student
advising performance and depending on funding and availability of the position.”

ECF No. 1:2. The CBA states, in relevant part, that “[alppointment to Faculty of

2 The Court considers the CBA in its discussion because it is sufficiently
referenced in Mr. Fosu’s Complaint, See A/t. Knergy, Inc. v. St. Paul Fire & Marine
Ins, Co., 267 ¥.3d 30, 33 (st Cir. 2001) (holding that documents central to a plaintiffs
claim, whose authenticity is not challenged, merge into the pleadings and can be
considered by the court at the motion to dismiss stage). The Court also looks to the
Offer Letter because it states that Mr. Fosu’s appointment was subject to the
University Manual and the CBA. ECF No. 1:2. These documents shape the terms
and duration of Mr. Fosu’s continued employment and are relevant to Defendants’
motion.

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Practice is on an annual basis for a period up to five years maximum.” ECF No. 7-2
at 49 (emphasis added). It continues, “[t]he awarding of an appointment or
subsequent reappointments by the University implies no commitment beyond the
terms of appointment.” /d. at 56.

When read together, the controlling terms of Mr. Fosu’s employment with URI
indicate that the Faculty of Practice position is annual. The Offer Letter states that
Mr. Fosuw’s reappointment is “possible,” but it is subject to circumstances beyond his
control, such as whether URI has the funding for the position. The CBA forecloses
any chance that URI could promise Mr. Fosu that his contract would be renewed.
Ultimately, Mr. Fosu’s employment at URI beyond one year was possible, but it was
not guaranteed in a way such that he had a reasonable expectation of continued
employment. Therefore, Mr. Fosu has not pled a property interest in his employment
and URI did not violate his rights by failing to give him a hearing before placing him
on administrative leave and terminating his position. Accordingly, the Court
GRANTS the Motion to Dismiss as to COUNT II.

B. Count HI — 42 U.S.C § 1983 Equal Protection Claim

In Count III, Mr. Fosu claims Defendants violated his Fourteenth Amendment
right to equal protection. To survive a motion to dismiss this claim, he must plead
that (1) he was treated differently than others similarly situated, and (2) that the
motivation behind the different treatment was based onrace, Aubrmnovitz v. Rogato,
60 F.3d 906, 909-10 (1st Cir. 1995). In support of this claim, Mr. Fosu alleges that

Defendants treated him differently than similarly situated URI professors because

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he is a Black man. Defendants argue that the Complaint fails to include the
necessary specificity regarding the persons to whom Mr. Fosu was similarly situated.
“The determination as to whether individuals are ‘similarly situated’ for equal
protection purposes is an amorphous one. “The test is whether a prudent person,
looking objectively at the incidents, would think them roughly equivalent and the
protagonists similarly situated .... Exact correlation is neither likely nor necessary.
..” Tapatian v. Tusino, 377 F.3d 1, 5 (ist Cir. 2004) (quoting Barrington Cove Ltd.
P’ship v. R. I. Hous. & Mortg. Fin, Corp., 246 F.3d 1, 8 (st Cir. 2001) (citation
omitted)). “[T]he ‘relevant aspects’ are those factual elements which determine
whether the reasoned analogy supports, or demands, a like result.” Aponte-Ramos v.
Alverez-Rubio, 783 F.3d 905, 909 (1st Cir. 2015) (quoting Barrington Cove, 246 F.3d
at 8). |
The Court finds that the Complaint is specific enough in its allegations of
differential treatment. Mr. Fosu alleges that he was placed on administrative leave
and ultimately terminated because he made provocative public remarks against
URIs alleged practice of discrimination. ECF No. 1 at 4] 14-16 & 53-56. He alleges
that “similarly situated professors at URI” have made “provocative public remarks”
without being placed on administrative leave or denied a hearing. ECF No. lat §Y 73
& 108. He alleges that he was treated differently than his colleagues who also spoke
out against URIs practices but were not placed on administrative leave like Mr. Fosu.
fd. The allegations in the Complaint show the analogy between Mr. Fosu and similar

URI professors who have made provocative public remarks. Because Mr. Fosu

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establishes his comparators and specifies URI’s differential treatment, he has
satisfied the first element of an equal protection claim.3

Since Mr. Fosu has pled his protected status, the Complaint need only allege
that his differential treatment was “based on impermissible considerations such as
race.” Rubinovitz, 60 F.3d at 910. Mr. Fosu points to the lack of diversity among
URIs faculty, its student body, and its leadership. ECF No. 1 at (8-11. Mr. Fosu
and the DTT made URI aware of their accusations that URI engaged in systemic
racism in the hiring and treatment of African American Professors. /d. at {|{| 55-56.
Taking these allegations as true, the Court infers that race was an impermissible
consideration in Defendant’s decision to treat Mr. Fosu differently. Accordingly, the
Court DENIES the Motion to Dismiss as to COUNT III.

C. Count IV — Rhode Isiand State Constitution Claims

In Count IV of the Complaint, Mr. Fosu claims Defendants violated his rights
under Article 1, Sections 2 and 21 of the Rhode Island Constitution. Defendants
argue in their motion that this Court should refrain from recognizing a private cause

of action under the Rhode Island Constitution because Rhode Island’s General

Assembly has not done so.

3 Defendants argue that Mr. Fosu has effectively pled a class-of-one theory
because he failed to specify his membership in a protected class. At the outset of his
Complaint, he pleads that he is a Black man, and that his race was a motivating
factor for Defendant's violation of the law. ECF No. 1 at 3. This allegation puts
him squarely within a protected class. As such, the Court rejects the argument that
Mr. Fosu is relying on a class-of-one theory.

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Looking to and deferring to Rhode Island state law, the Court finds that
Mr. Fosu does not have a cause of action for equal protection and due process
violations under Article 1, Section 2 of the Rhode Island Constitution.1 The Rhode
Island Supreme Court has held that because “the [Rhode Island Fair Employment
Practices Act] and the [Rhode Island Civil Rights Act] provide comprehensive
remedies® for employer discrimination, it is unnecessary to create or recognize a
direct remedy pursuant to Article 1, Section 2, of the Rhode Island Constitution.”
Folan v. State Dep't of Children, Youth, and Families, 723 A.2d 287, 292 (R.I. 1999).
Mr. Fosu’s state due process and equal protection claims are more comprehensively
redressed by the FEPA and RICRA. Mr. Fosu’s claim that his right to freedom of
speech under Article 1, Section 21 was violated cannot stand for the same reason.
Felkner v. R. I. Coll, 208 A.3d 433, 447 (R.1. 2019) (noting that plaintiffs redress for
a violation of Art. 1, § 21 was through RICRA rather than a private cause of action
under the R.I. Constitution). Ultimately, the state statutes provide an adequate

remedy for Mr. Fosu’s claims and the Court declines to recognize that Mr. Fosu has

4 Defendants correctly note that federal courts are precluded from extending
the reach of state law. Doe v. Trs. of Bos. Coll, 942 F.3d 527, 535 (1st Cir. 2019)
(citing Erie R. Co. v. Tomkins, 304 U.S. 64, 78 (1938)). Moreover, “a state decision
resting on an adequate foundation of state substantive law is immune from review in
federal courts.” Wainwright v. Sykes, 433 U.S. 72, 81 (1977).

5 The Rhode Island Fair Employment Practices Act (‘FEPA”) was enacted to
protect a private citizen’s right to employment without discrimination. It outlines
prohibited employment practices and provides a means for redress through the Rhode
Island Commission for Human Rights and the Superior Court. See R.I. Gen. Laws
§ 28-5-1 et seg. Likewise, the Rhode Island Civil Rights Act of 1990 (‘RICRA”) is
analogous to Title VII in its protection a private citizen’s right to equal protection and
due process, and specifically creates a private cause of action for citizens whose rights
have been violated. See R.I, Gen. Laws § 42-112-1 et seg.

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a private cause of action under Article 1, Sections 2 and/or 21 of the Rhode Island
Constitution Accordingly, the Court GRANTS the Motion to Dismiss as to COUNT
IV.

D. Count V — Defamation

In his defamation claim, Mr. Fosu claims Mr. Dooley and Mr. DeHayes
portrayed him as hostile, abusive, misogynistic, and coercive in several
correspondences, defaming him and harming his reputation. Defendants argue that
the Complaint fails to identify any defamatory statements.

To state a defamation claim, a plaintiff must allege “(1) the utterance of a false
and defamatory statement concerning another; (2) an unprivileged publication to a
third party; (8) fault amounting to at least negligence; and (4) damages, unless the
statement is actionable irrespective of special harm.” Nassa v. Heok—Supeksx, Ine.,
790 A.2d 368, 373 n.10 (R.1. 2002). Under Rhode Island law, a statement is
considered defamatory when it is “false and malicious, imputing conduct which
injuriously affects a manl[’]s reputation, or which tends to degrade him in society or
bring him into public hatred and contempt... .” Herd v. Providence Journal Co., 37
A. 637, 638 (R.I. 1897). A claim must include factual allegations that “the person... to
whom the communication was published reasonably understood” the communication
to be defamatory. Marcil v. Kells, 936 A, 2d 208, 218 (R.1. 2007).

Together with this understanding of defamation, the Rhode Island Supreme
Court has adopted the Restatement’s understanding of defamation per se, Id.

According to the Restatement (Second) of Torts, statements are actionable per se

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when they are particularly harmful to “one engaged in his trade or profession.”
Restatement (Second) of Torts § 573 cmt. e (1977). General statements that would
harm all persons do not amount to defamation per se unless the quality harmed is
valuable to a plaintiffs trade. Jd. Ultimately, statements that assert “improper
conduct, lack of skill, or integrity...that...is calculated to cause injury to one in his
profession,” amount to defamation. Marcil, 986 A. 2d at 213.
1. Defendants’ Statements

Mr. Fosu identifies three pieces of correspondence that, in his view, contain
defamatory statements: the December 7th email Mr. Dooley and Mr. DeHayes sent,
and the January 12 letter and January 22nd memorandum Mr. DeHayes sent.
Defendants argue that these do not contain defamatory statements, but merely gave
Mr. Fosu and his union representative notice of the reasons URI was placing him on
administrative leave.

As an initial matter, the Court is not persuaded that URI’s statements are not
defamatory because they were intended to give Mr. Fosu notice of his administrative
leave, A defamation action can be supported by “fault amounting to at least
negligence,” which makes URI’s intentions irrelevant to the determination of this
issue, Alves v. Hometown Newspapers, Inc., 857 A.2d 748, 751 (R.1. 2004) (quoting
Cullin v. Auclair, 809 A.2d 1107, 1110 (R.1. 2002) (per curiam)).

Moving on to the statements themselves, the December 7th email, January
12th letter, and the January 22nd memorandum, when read in context, outline URIs

“serious concerns” regarding allegations that Mr. Fosu intimidated, exploited, and

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coerced his students, and that his interactions with URI faculty have been hostile
and “non-collegial.” ECF No. 1 at § 77. Mr, Fosu alleges that these comments directly
disparage his ability to educate students and work with his colleagues, which are
qualities that are valuable to any professor. He also alleges that he personally found
the statements “shocking and upsetting.” /d. There is no question that the assertions
leveled against Mr. Fosu are harmful particularly to his profession as an educator.
The effect of these statements made it difficult for him to do his job; Mr. Fosu noticed
that “several faculty and students suddenly began disassociating from the DTT and
its advocacy efforts.”6 Jd. at | 76. As such, the Court finds that Mr. Fosu’s invocation
of Mr. Dooley’s and Mr. DeHayes’s correspondence in his Complaint sufficiently
alleges a claim for defamation per se. Thus, Mr. Fosu has sufficiently alleged that
Mr. Dooley’s and Mr, DeHayes’s statements are defamatory.
2. Allegations of Bad Faith Vitiate any Qualified Privilege

Defendants argue that the Court should dismiss Mr. Fosu’s defamation claim

because the defamatory statements were published only to URI officials and a URI-

affiliated union representative. Based on this limited publication, Defendants assert

6 Mr. Fosu argues that the statements act as evidence of both the harm to
Mr. Fosu’s reputation and Defendants’ publication of the defamatory statements.
The Court declines to make that leap, however, because there is no evidence that the
defamatory statements were published to URI students. While the Court is duty
bound to resolve all reasonable inferences in favor of the Mr. Fosu, Ha/ey, 657 F. Supp
at 46, the breadth of these inferences is not without limit. Accordingly, the Court
finds that Mr. Fosu has sufficiently pled that Defendants’ statements were
defamatory. As for Defendants’ alleged publication, the Court will resolve the issue

in more detail supra.
!

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that the communications remained within an intra-corporate privilege and are not
publications for the purposes of a defamation claim.

In Rhode Island, an otherwise defamatory statement is protected by a qualified
privilege? when “the publisher acting in good faith correctly or reasonably believes
that...to speak out is necessary to protect his own interests, or those of a third
person.” Jms v. Town of Portsmouth, 32 A.3d 914, 930 {R.1. 2011) (quoting Ponticelli
v. Mine Safety Appliance Co., 247 A. 2d 808, 305-06 (R.I. 1968)). However, unlike an
absolute privilege, a qualified privilege can be lost when “the alleged defamatory
statement is the product of ill will or malice.” /d.

Here, the Court need not address whether Defendants’ communication fell
within an intra-corporate privilege because, even if it had, the Court finds that
Mr. Fosu properly alleges that Defendants acted with malice. He has specifically and

! |
plausibly alleged that the statements from Mr. Dooley and Mr, DeHayes were part of
a malicious campaign to destroy his reputation in retaliation for speaking out against
URI. ECF No. 1 at 9 7 & 116. Therefore, taking his allegations as true, the

defamatory statements that Mr. Fosu raises in his Complaint are actionable.

Accordingly, the Court DENIES the Motion to Dismiss as to COUNT V.

7 In their motion, Defendants argue that this Court should recognize an intra-
corporate privilege to protect otherwise defamatory statements shared between
administrators who have a legitimate need for the information. However, the Court
declines to reach this issue because Mr. Fosu’s allegations of bad-faith and malice
will result in the same conclusion described supra,

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E. Count VI — Breach of Contract

In Count VI of the Complaint, Mr. Fosu alleges that URI breached its contract
with him. He claims that his employment contract with URI provided for
reappointments subject to an annual review, and that URI breached that contract
when it terminated him after he received a positive annual review. Jd. at {| 120-121.
URI argues that the Labor Management Relations Act (“LMRA”) preempts Mr. Fosu’s
state law claim for breach of contract because the terms of his employment contract
are “inexorably intertwined” with provisions of the CBA. A/lis-Chalmers Corp. v.
Lueck, 471 U.S, 202, 218 (1988).

Section 301 of the LMRA “preempts a state law claim when ‘the asserted state-

law claim plausibly can be said to depend upon the meaning of one or more provisions

a3}

within the collective bargaining agreement. Haggins v. Verizon New England, Inc.,
648 F.3d 50, 54-55 (ist Cir. 2011) (quoting /botte v. Pa. Truck Lines, Inc., 181 F.3d
21, 26 (1st Cir. 1997)). A state law contract claim may depend on the provisions of a
CBA when the resolution of the claim requires an interpretation of the collective
bargaining agreement.

As noted above, Mr. Fosu’s employment contract with URI expressly states
that it is subject to the CBA. The CBA outlines the terms and rights of a Faculty of
Practice at URI, which includes the provision that “Faculty of Practice shall be
reviewed annually.” ECF. No. 7-2 at 58-54. Mr. Fosu’s breach of contract claim rests

on the fact that URI terminated him even though he received a favorable review from

his supervisor, Mr. Mare Hutchinson, after he observed his class and evaluated his

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performance. ECF No. 1 at 4] 61-62 & 120. However, to determine whether
Mr, Hutchinson’s evaluation amounts to the annual review referenced in the CBA
that URI promised Mr. Fosu requires an interpretation of the CBA. Therefore,
because the Court concludes that one or more CBA provisions will require
interpretation to determine the outcome of the breach of contract claim, Section 301
of the LMRA preempts Count VI. Accordingly, the Court GRANTS the Motion to
Dismiss as to Count VI.

F. Count VII — Rhode Island Whistleblowers’ Protection Act

In Count VII of the Complaint, Mr. Fosu claims that URI violated the Rhode
Island Whistle Blower’s Protection Act (““RIWPA”). In support, he alleges that URI
subjected him to adverse employment action because he accused URI of racial
discrimination. To state a claim under RIWPA, a plaintiff must show that he
engaged in protected whistleblowing conduct as defined in the statute. Casey v.
Manni, 449 F. Supp. 3d 1, 3 (D.R.1. 2020). RIWPA defines protected conduct as when
an employee “reports verbally or in writing to the employer. [about] a violation...of
a law or regulation or rule promulgated under the laws of this state...or the United
States.” R.I. Gen. Laws § 28-50-3(4). |

Defendants argue that the Court should dismiss Count VII because Mr. Fosu
did not allege that he reported to URI the specific law, regulation, or rule it violated.

The Court disagrees based on its own review of the Complaint. Throughout his

8 As noted above, Mr. Fosu has stipulated that Count VII will be dismissed
against the named URI officials in their individual capacities.

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Complaint, Mr. Fosu alleges that URI engaged in race-based discrimination, and he
reported this conduct to URI. Moreover, Mr. Fosu specifically pleads that he reported
URI’s engagement in systematic racism in “the hiring, treatment, and promotion of
African Americans” to university officials. ECF No. 1 at {| 56. The mere fact that he
did not cite to a particular statute does not doom his claim at this stage. Ultimately,
the Complaint sufficiently alleges that Mr. Fosu’s conduct is protected under R.I. Gen.
Laws § 28-50-3(4). Accordingly, the Court DENIES the Motion to Dismiss as to Count
VIL.
IV. CONCLUSION

For all these reasons, the Court DENIES Defendants’ Motion to Dismiss as to

COUNTS IT, V, and VII and GRANTS Defendants’ Motion to Dismiss COUNTS II,

TV, and Vie

IT IS SO/ORDERED.

John J. McConnell, Jr.
Chief Judge
United States District Court

March 14, 2022

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