From Thursday’s Tenth Circuit decision in Sun v. Xu, written by Judge John Lee and joined by Judges Diane Wood and Doris Pryor:
Appellants Xingjian Sun and Xing Zhao accused their professor, Appellee Gary Gang Xu, of sexually and emotionally abusing them while the two were students at the University of Illinois at Urbana-Champaign (UIUC). Sun and Zhao brought these allegations to UIUC administrators, and Sun later publicized them during an interview on a nationally televised morning news show {CBS This Morning}. Meanwhile, Appellant Ao Wang, a professor at Wesleyan University, learned of these allegations and posted on an online message board that Xu had a history of sexually assaulting students ….
The jury found that Sun had defamed Xu (and awarded Xu $50K on that theory), that Sun had intentionally inflicted emotional distress on Xu (awarding Xu an extra $50K for that), and that Wang had intentionally inflicted emotional distress on Xu (awarding him $300K in compensatory damages and $400K in punitives). The jury also rejected Sun’s and Zhao’s claims of rape, forced unpaid labor, and improper retaliation.
But the court threw out the intentional infliction of emotional distress claim against Wang (Xu hadn’t sued Wang for defamation, which might be because he had sued for that in Chinese court, and the Chinese court had rejected that claim):
Wang contends that no reasonable jury could find on this record that his conduct was extreme and outrageous under Illinois law. We agree.
The Illinois Supreme Court has identified three non-exclusive factors that inform whether conduct is extreme and outrageous. First, the extreme and outrageous nature of the conduct may arise from defendant’s “abuse of some position that gives him authority over the plaintiff or the power to affect the plaintiff’s interests.” Second, courts consider the reasonableness of a defendant’s belief that his objective is legitimate. Third, courts evaluate whether the defendant is aware that the plaintiff is particularly susceptible to emotional distress….
No reasonable jury could find on this record that Wang’s conduct exhibited any of these factors. Wang did not abuse a position of power over Xu, as both parties admit they barely knew each other. Nor is there any indication that Wang knew that Xu was particularly susceptible to emotional distress. The only debatable point is whether Wang reasonably believed that his objective was legitimate. In this regard, Illinois courts give greater latitude to defendants who “pursu[e] a reasonable objective even if that pursuit results in some amount of distress for a plaintiff.” Actors cannot, however, pursue that legitimate purpose in an extreme or outrageous manner.
Here, Wang consistently claimed that his objective in posting the comments was to prevent other students from being victims of Xu’s behavior. He wrote this in his online posts and repeated it at trial, stating his intention was to “do the right thing, which is to protect women, especially female students.” While Wang never raised these allegations with Xu, he testified that he believed the assertions and had heard of multiple instances of Xu’s sexual misconduct. By contrast, Xu presented no evidence at trial to contradict the veracity of Wang’s intentions. Wang’s posting of his genuinely held belief in Xu’s alleged misconduct for the purpose of warning other students does not rise to the level of extreme and outrageous conduct under Illinois law….
But the court preserved the intentional infliction of emotional distress claim against Sun (the defamation claim against Sun hadn’t been appealed):
As with Wang, the pivotal issue is whether Sun reasonably believed that her objective in publicizing her allegations against Xu was legitimate. We tread carefully here, because we are mindful that overcorrection may chill good faith claims of sexual harassment and assault. In such circumstances, when an individual in fact believes that they were the victim of sexual harassment or sexual assault and publicizes this belief in order to obtain accountability and redress, a claim for intentional infliction of emotional distress would be baseless.
But the circumstances here are very different. As we shall see, whether Sun actually believed that Xu had sexually assaulted her at the time she made those accusations public was hotly contested at trial. And so, we take our evaluation of Sun’s intent in two steps. We first consider whether Xu presented sufficient evidence at trial for a reasonable juror to find that Sun was fabricating her claims. Second, if Xu did present such evidence, we ask whether Sun’s knowingly false allegations of rape are sufficiently extreme and outrageous to support an intentional infliction of emotional distress claim under Illinois law.
Based on the trial record, we conclude that a reasonable jury could find that Sun was lying about the nature of her relationship with Xu when she made her accusations against him public. For example, the jury heard the testimony of Kaamilyah Abdullah-Span, an administrator in the Office of Diversity, Equity, and Access at UIUC. She testified that even though Sun initially had reported that she had had a sexual relationship with Xu, Sun “withdrew her allegations on multiple occasions.” The jury also read Sun’s emails retracting her claims and her written statement that she had “made up the stories about sexual abuse.” Furthermore, the jury observed Sun give her account at trial and watched Xu as he testified that he had never had sex with Sun and that he was the one who had rejected her advances.
On the other hand, there was evidence at trial that would lend some support to Sun’s statements, such as Sun’s video deposition testimony, her initial complaints to UIUC administrators, and photos of her and Xu together. But we jealously guard the jury’s province to weigh conflicting evidence, evaluate witness credibility, and determine the facts. This is why, when reviewing a district court’s ruling on a motion for judgment as a matter of law, we “disregard all evidence favorable to the moving party that the jury was not required to believe.” Here, the jury was best positioned to consider the totality of the evidence at trial and determine whether it was Sun or Xu who was telling the truth.
Because there was sufficient evidence at trial from which a reasonable jury could find that Sun had fabricated her statements about Xu, we now ask whether such actions constitute extreme and outrageous conduct under Illinois law. We conclude that they do. Intentional dissemination of false allegations of rape on a nationally televised program is the type of conduct that would lead a reasonable person to “hear the facts and be compelled to feelings of resentment and outrage.” …
The Illinois Supreme Court’s decision in Kolegas v. Heftel Broadcasting Group (Ill. 1992) is instructive. There, a local disc jockey stated on-air that a caller’s wife and son—both of whom suffered from neurofibromatosis (commonly known as Elephant Man disease)—had deformed heads and that no one would want to marry the wife except out of duress. While such statements expressed privately might constitute mere insults, the court noted, the disc jockey’s derogatory remarks were extreme and outrageous “by virtue of its publication to the community at large.” In comparison, Sun’s conduct here was more extreme and outrageous. She broadcasted her allegations of rape (which the jury found to be false) to a national audience and made accusations that could—and did—jeopardize Xu’s career and reputation….
Next, Sun argues that the record lacks any evidence that her actions caused Xu to suffer severe emotional distress….
At trial, Xu testified that Sun’s comments on CBS This Morning caused him to lose “everything.” The interview also was uploaded to YouTube and the public website of Sun’s counsel. Xu said that this caused “an incredible amount of pressure and nightmare [sic] and explanation to, to my family.” Xu further stated that he felt sick due to the accusations and experienced tremendous nervousness and anxiety. He also testified that he had nightmares and was “waking up in the middle of the night, thinking of all the accusations, thinking of what life could have been without all this.” As he feared, Xu was fired from his job and was unable to find other employment in the United States or China.
A reasonable juror could find that this combination of symptoms constitutes severe emotional distress as defined by Illinois law. Xu claimed that he was both financially and reputationally ruined by Sun’s allegations. This harm exceeds the distress the Illinois Supreme Court found sufficient in Kolegas, where Kolegas claimed that the disc jockey’s offensive comments caused him to be “greatly injured in his reputation and business” and that “the attendance receipts earned from [a related charity festival] were greatly diminished.” …
Finally, Sun argues that Xu’s intentional infliction of emotional distress claim cannot stand because her comments were a matter of public concern and protected by the First Amendment. But this is a new argument made for the first time on appeal…. While Sun is not limited to the “precise” arguments raised below, she made no mention of the First Amendment or Snyder v. Phelps in her briefs before the district court, and the argument is waived….
Here are more factual details:
While a graduate student at UIUC in 2013, Sun asked Xu, then a professor in the Department of East Asian Language and Culture, to advise her project on Chinese film. Over time, Sun alleges, she and Xu engaged in a sexual relationship, a claim Xu has repeatedly denied. According to Sun, the relationship turned violent and non-consensual. Indeed, Sun claims Xu violently raped her, publicly chased her in a car, and attempted to kill her. Sun told the police and UIUC administrators about the relationship, and the University launched multiple investigations into Xu’s conduct. Sun would later write an email to UIUC recanting her allegations against Xu and admitting she had fabricated the stories.
Zhao was a graduate student at UIUC and assisted Xu with a book he was writing. Zhao alleged that Xu attempted to kiss and grab her at an art exhibit. Zhao reported these allegations, along with concerns about Xu’s relationship with Sun, to UIUC. Xu denies he ever assaulted Zhao.
Wang is a professor at Wesleyan University in Middletown, Connecticut. Wang and Xu had only met once, but Wang saw social media posts accusing Xu of rape, sexual assault, and predatory behavior. On March 10, 2018, Wang wrote a post on douban.com, an online message board, stating that Xu had committed “numerous misdeeds.” Wang claimed that Xu had “sexually assaulted students for nearly 20 years, and finally had to resign and work in another university.” Wang also wrote,
The information I have is that Gang Xu had improper relationships with many students, so that the university did not schedule classes for him, hoping that he would leave by himself. Frankly speaking, such a notorious person should be excluded from the education sector. If he chooses to work in a university in the Chinese mainland, students who are not aware of his misdeeds may become victims. So I give a warning here.
According to Wang, his “core purpose” in making the post was to “[g]ive a warning to prevent people from becoming next victims [sic] and exclude the misbehaving persons like Gary Gang Xu from the education sector.” To that end, Wang encouraged students to “inform each other” of Xu’s misdeeds, if universities did not punish Xu appropriately. Mere hours after Wang posted on douban.com, Xu responded to Wang via email, denying the claims and threatening legal action. A week later, Wang republished his comments on a different message board, zhihu.com. These posts apparently received over one million views….
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