The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge
MEMORANDUM OPINION AND ORDER
Before the court in this Americans with Disabilities Act (ADA) case are the parties' cross-motions [21 and 25] for summary judgment. For the reasons set forth below, these motions are each granted in part and denied in part. Also before the court, and dealt with in this Memorandum Opinion and Order, are various motions related to the summary judgment motions [22, 30, and 33] and related to defendant Goldberg's counterclaim for defamation [29 and 37].
I. SUMMARY JUDGMENT FRAMEWORK
Summary judgment is appropriate when the motion papers, affidavits, and other submitted evidence demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Whether a fact is "material" is determined in light of the applicable substantive law invoked by the action. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In light of the applicable substantive law, a "genuine issue of material fact" is a fact that is determinative of a claim or defense, and therefore, affects the outcome of the case. See Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248. The moving party bears the initial burden of demonstrating that no genuine issues of material fact are in dispute. Upon such a showing, the burden then shifts to the non-moving party to demonstrate that genuine issues of material fact are in dispute. The Court is precluded from weighing evidence or finding disputed facts and must draw all inferences and resolve all doubts in favor of the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).
Plaintiff Carolyn Singh was once a medical student at The George Washington University School of Medicine and Health Sciences ("School"). Plaintiff was part of the School's Decelerated Program. The Decelerated Program is available to School applicants who show promise but who have weaknesses or aberrations in their academic records that present cause for concern. The program allows these students to complete the traditional first-year curriculum over two years instead of one. The School admitted plaintiff for the fall 2000 term. The School dismissed plaintiff from the School in 2003.
The School publishes a bulletin that sets forth academic requirements, circumstances that would subject a student to risk of dismissal, and the process that the School takes when considering whether to dismiss a student. Failing and conditional grades put students at risk for dismissal. Failing grades are given to students who have not met a department's minimum requirement and who could not meet that requirement through remedial work. Conditional grades are given to students who have not met a department's minimum requirement but who could meet that requirement after remedial work. Students completing the first-year curriculum in the decelerated program are subject to dismissal for, in any single course, failing, receiving a conditional grade, or receiving a grade less than one standard deviation from the mean grade. All students are subject to dismissal for various shortcomings, including the receipt of two grades of failing or conditional during the first semester of the first year or one such grade after previously being at risk of dismissal.
Decisions to dismiss students are made by the School's Dean after a hearing. The School has a Medical Student Evaluation Committee ("MSEC") that makes advisory recommendations to the Dean about whether to dismiss students who are at risk of dismissal because of poor academic performance. To formulate its recommendations, the MSEC meets with at-risk students, reviews their academic records, and reads any written statements that these students submit. The Dean's decision concerning dismissal must be in writing.
During Dean Williams' tenure at the School, the MSEC recommended 11 students for dismissal, including plaintiff. Dean Williams followed the MSEC's recommendation in each case and dismissed each student. (Def. Mot. for Summary Judgment, Exh. 2, ¶ 5.) (Williams Dec.).
Plaintiff began her studies as a decelerated student at the School in Fall of 2000. During her first semester, she failed Cells and Tissue and was further than one standard deviation off the mean grade in Physiology, which both put plaintiff at risk for dismissal. The MSEC met to review plaintiff's status on January 23, 2001. The MSEC recommended, and the Dean concurred, that plaintiff could remain at the School provided she passed Cells and Tissues over the summer. Plaintiff passed the summer Cells and Tissue course and returned to the School for the fall 2001 term, at which time she would begin the second half of the first-year curriculum. This time, she failed Neurobiology and fell below the standard deviation in Gross Anatomy and Microscopic Anatomy, again subjecting her to the risk of dismissal. On January 12, 2002, the MSEC again met to consider plaintiff's status at the School. At this meeting, plaintiff blamed her poor performance on an error she made while completing an exam answer sheet in her Neurobiology class and on stress related to the September 11 attacks. Again, the MSEC recommended, and the Dean concurred, to keep plaintiff in the program and that she take Neurobiology over the summer, which she took and passed.
Upon returning to the School in the fall of 2002, plaintiff had completed the first-year curriculum and was part of the regular Medical Doctor program. But plaintiff again had academic trouble. In fall of 2002, she failed Pharmacology and received a conditional grade in Microbiology, again putting herself at risk of dismissal. On January 16, 2003, plaintiff's status came before the MSEC for a third time. The MSEC voted unanimously to dismiss plaintiff from the School and Associate Dean Goldberg informed plaintiff of the MSEC's decision by phone that same night.
Plaintiff, looking to explain her poor performance, contacted the School's Disability Support Services ("DSS") in late January of 2003 and visited Dr. Anne Newman, a psychologist, on February 4, 5, and 10, 2003. DSS notified Associate Dean Goldberg on February 6 and Dean Williams on February 10 that plaintiff was registered with DSS and was undergoing tests for learning disabilities. On February 11, Dean Williams met with plaintiff and her mother. What was said at this meeting is disputed. On February 21, Dr. Newman completed her evaluation. She concluded that plaintiff had dyslexia, a mild disorder of processing speed, and a phonological disorder. Dr. Newman recommended that plaintiff receive, among others, the following accommodations: double time on exams, access to lecture notes, tutors, and laptop computer for typing essay exams. On February 26, plaintiff provided a copy of this evaluation to Dean Williams along with a letter that she wrote urging the Dean to permit her to stay at the School or to have the MSEC review her case, now "that with accommodations, I will be a very successful medical student." (Pl. Mot for Summary Judgment, Exh. 3.) (letter from plaintiff to Dean Williams)
On March 5, 2003, Dean Williams responded to plaintiff's letter. He stated that he had accepted the MSEC recommendation and dismissed her at the February 11 meeting effective immediately and that he had never agreed to defer a decision about plaintiff until after her disability testing results were available: the decision was based on academic failure alone. (Pl. Mot for Summary Judgment, Exh. 6.) (letter from plaintiff to Dean Williams). The Dean's deposition testimony further clarifies that while he read Dr. Newman's report, the report played no role in his decision to dismiss plaintiff. (Pl. Mot for Summary Judgment, Exh. 9, p. 25.) (deposition of Dean Williams)
Plaintiff has brought suit under the ADA. Section 302 of Title III of the ADA provides that:
No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a). To establish a violation of this provision, plaintiff must prove: "(1) that she has a disability; (2) that she is otherwise qualified for the benefit in question; and (3) that she was excluded from the benefit due to discrimination because of the disability." Kaltenberger v. Ohio College of Podiatric Med., 162 F.3d 432, 435 (6th Cir. 1998); cf. Ferrell v. Howard Undiversity, No. 98-CV-1009, 1999 WL 1581759, at *3 (D.D.C. Dec. 2, 1999), aff'd 254 F.3d 315 (D.C. Cir. 2000).
Under the ADA, a protected disability is "a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual." 42 U.S.C. § 12102(2)(A). Based on this definition, courts require an ADA plaintiff to (1) have an impairment (2) that is related to a major life activity (3) and that substantially limits that major life activity. Haynes v. Williams, 392 F.3d 478, 481-82 (D.C. Cir. 2004). On the issue of disability, the court will consider plaintiff's and defendants' motions separately.
1. Plaintiff's Motion for Summary Judgment
Plaintiff has offered un-rebutted evidence of a mental impairment; though the nature of that impairment is hotly disputed. To show impairment, plaintiff put forward Dr. Newman's February evaluation that concludes that plaintiff "meets diagnostic criteria for Reading Disorder (784.61 - Dyslexia), Mild Disorder of Processing Speed (349.9 - Disorder of Central Nervous System, Unspecified), and Disorder of Phonological Awareness (388.43 - Disorder of Auditory Discrimination)." (Pl. Mot. for Summary Judgment, Exh. 2, p. 7.) (Dr. Newman evaluation). The report further concludes that these disorders are longstanding though their effects on her academic performance, for various reasons, did not become clear until medical school. Id. Defendants contest the Newman report and have put forward the report of Dr. Rick Ostrander, Chief of Neuropsychology of the Division of Child and Adolescent Psychiatry at Johns Hopkins University. Dr. Ostrander reviewed Dr. Newman's data and plaintiff's academic history and concluded that the "test data does not support the type of neuropsychological deficits or associated academic deficits... that are most commonly associated with dyslexia or a specific learning disability in reading." (Def. Opp. and Reply, Exh. 4, p. 12.) Dr. Ostrander found it more likely that plaintiff's recent academic failures, as compared to her previous moderate to high success in endeavors such as the SAT and college, were due to a psychiatric disorder such as depression. Id.
Dr. Ostrander's report creates a factual dispute as to what kind of impairment plaintiff has, but is not evidence that plaintiff has no impairment at all. Dr. Ostrander recognizes some mental impairment in plaintiff, but finds it more likely to be related to psychiatric disorder such as depression than a learning disability such as dyslexia. In many circuits, depression is a valid impairment. See, e.g., Calero-Cerezo v. U.S. Dept. of Justice, 355 F.3d 6, 20 (1st Cir. 2004); Ogborn v. United Food & Commercial Workers Union, Local No. 881, 305 F.3d 763, 767 (7th Cir. 2002) ("Major depression can constitute a disability under the ADA."); Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1088 n.8 (9th Cir. 2001) ("In Oregon, stress and depression can be considered mental impairments. The same is true under the ADA."); Pritchard v. Southern Co. Serv., 92 F.3d 1130, 1132 (11th Cir. 1996), amended in part on reh'g, 102 F.3d 1118, cert. denied, 520 U.S. 1274 (1997) ("Depression has been held to constitute a mental impairment."); Doe v. Region 13 Mental Health-Mental Retardation ...