United States District Court, District of Columbia
AMY BERMAN JACKSON United States District Judge
Plaintiff Sina Chenari has brought this lawsuit against George Washington University, challenging the University’s decision to dismiss him from the medical school on the grounds that he had violated the school’s Honor Code while taking a nationally-administered examination. Compl. [Dkt. # 1]. Plaintiff does not deny that he continued to fill in the answer sheet after time had expired and even after he had been directed to stop, but he maintains that his behavior did not involve deceit. Id. ¶¶ 12-13. So, he posits that the University breached its contractual obligations and the covenant of good faith and fair dealing when it dismissed him for committing an offense involving “academic dishonesty.” Id. ¶¶ 12-16, 28-37. Plaintiff also contends that he suffers from Attention Deficit Hyperactivity Disorder (“ADHD”), and that the University violated the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., when it failed to provide him with reasonable accommodations for that disability, “including not being dismissed from [the] medical school, ” and when it discriminated and retaliated against him. Id. ¶¶ 17, 39-55. Defendant has moved for summary judgment, Mot. of Def. for Summ. J. [Dkt. # 18] (“Def.’s Mot.”), and plaintiff has opposed defendant’s motion. Pl.’s Mem. of P. & A. in Opp. to Def.’s Mot. [Dkt. # 24] (“Pl.’s Opp.”).
Since plaintiff has failed to come forward with any evidence that would enable a fact finder to conclude that there was no rational basis underlying the University’s decision to dismiss him for academic dishonesty, the Court will grant defendant’s motion for summary judgment on the contract claims in Counts I and II. And since it is undisputed that plaintiff never requested an accommodation for his alleged disability, and there is no evidence beyond plaintiff’s own testimony that he ever mentioned it to University officials at all, the motion for summary judgment on the Rehabilitation Act and ADA claims in Counts III and IV will be granted, as well. Thus, this case will be dismissed in its entirety.
The following facts are undisputed except where noted. Plaintiff enrolled at the George Washington University School of Medicine and Health Sciences (“Medical School”) in the fall of 2010. Dep. of Sina Chenari (Feb. 17 & Apr. 20, 2015), Ex. 2 to Def.’s Mot. [Dkt. # 18-2] (“Chenari Dep.”) 43:3-5. He was scheduled to graduate from the Medical School in 2014. Id. 186:10-12.
Prior to enrolling at the Medical School, on August 3, 2010, plaintiff saw Dr. Paul Durr for a “[g]eneral check up and immunizations.” Dep. of Paul G. Durr, M.D., Ex. 2 to Pl.’s Opp. [Dkt # 24-2] (“Durr Dep.”) 30:1-13. Durr did not conduct any mental health or psychiatric assessment for plaintiff at this visit. Id. 34:15-20. On January 11, 2011,  plaintiff saw Durr again, and he complained that he was having “issues in school with attention span issues, having difficulty studying, having difficulty performing in class, ” as well as suffering from depression and anxiety. Chenari Dep. 49:14-50:20; Durr Dep. 38:1-17. Durr wrote plaintiff a prescription for Adderall, set a follow-up appoint for a month later, and recommended that plaintiff see a therapist at school. Durr Dep. 39:1-3; see also Chenari Dep. 79:5-7. Despite Durr’s recommendation, plaintiff did not see a therapist at school or anywhere else. Chenari Dep. 75:12-18.
Durr testified that he was not required to diagnose plaintiff with ADHD before prescribing him Adderall, and he could not recall or otherwise determine whether he had in fact diagnosed plaintiff with ADHD at the January 11, 2011 appointment. Durr Dep. 40:15-22. However, at plaintiff’s follow-up appointments, Durr would write “ADD” in the assessment section of his notes. Id. 57:5-19, 59:5-11.
Plaintiff completed his first two years at the Medical School on time, but he did not start his clinical rotations in the fall of 2012 as scheduled because he postponed taking his Step 1 Shelf Examination, also called the Board Exam. Chenari Dep. 239:6-17. Plaintiff states that he postponed taking the exam because he was exhausted, depressed, and having difficulty studying for the exam. Id. 239:18-240:8. Plaintiff was unable to begin his clinical rotations until he completed the Board Exam. Id. 240:9-13.
On September 20, 2012, plaintiff contacted Dean Rhonda Goldberg, an Associate Dean for Students at the Medical School, to discuss developing a plan to continue with his education. Ex. 4 to Def.’s Mot. [Dkt. # 18-4] (“Goldberg Email”). Plaintiff met with Dean Goldberg and Dean Yolanda Haywood on October 3, 2012, and he claims that he informed them of his ADHD diagnosis at that meeting. Chenari Dep. 242:3-9, 243:1-5. However, Dean Goldberg could not recall plaintiff informing her that he had recently been diagnosed with ADHD, at that meeting or at any other time. Dep. of Rhonda Goldberg (Apr. 21, 2015), Ex. 3 to Pl.’s Opp. [Dkt. # 24-3] (“Goldberg Dep.”) 56:3-57:21. It is clear, though, that at the meeting, a plan was developed to enable plaintiff to continue with his studies. See Goldberg Email. Dean Goldberg also provided plaintiff with information about the University’s Counseling Center so that he could get assistance there for his depression and anxiety issues. Chenari Dep. 243:1-16. Plaintiff did not contact the Counseling Center because, he says, he felt “there was no time” to do so. Id. 243:17-21.
The next day, on October 4, 2012, plaintiff received an email from a University faculty member, Dr. Andrea L. Flory. Ex. 5 to Def.’s Mot. [Dkt. # 18-5] (“Flory Email”). Plaintiff had previously met with Flory because “he felt that his performance was far worse on the performance based exams . . . and he felt that this may be due to anxiety.” Dep. of Dr. Andrea Flory (July 8, 2015), Ex. 4 to Pl.’s Opp. [Dkt. # 24-4] 32:10-16. In her email, Flory provided plaintiff with the contact information for Anne Gialanella, a licensed professional counselor who specialized in helping students experiencing test-taking anxiety. Chenari Dep. 245:9-246:5; see also Flory Email. Plaintiff never contacted Gialanella, again because he felt he had no time to do so. Chenari Dep. 246:6-19.
On December 14, 2012, plaintiff sat for the Step 1 Surgery Shelf Exam, a standardized exam published by the National Board of Medical Examiners (“NBME”). Compl. ¶ 12; Goldberg Dep. 69:4-70:2. The exam was administered by Surgical Clerkship Coordinator Jessica Ruiz. Decl. of Jessica Ruiz, Ex. 12 to Def.’s Mot. [Dkt. # 18-12] (“Ruiz Decl.”) ¶ 1. Prior to administering the exam, Ruiz read instructions aloud from the NBME Chief Proctor’s Manual, advising students that they would “receive credit for an answer only if it is properly recorded in the appropriate space on the answer sheet, ” and that “[t]ime will not be extended beyond the close of this examination for transferring your answers.” Id. ¶ 3; Ex. A to Ruiz Decl. [Dkt. # 18-12] (“NBME Manual”) at 16. Ruiz also gave a warning thirty minutes before the exam period had elapsed, again telling students that “all responses must be recorded on your answer sheet in order to receive credit, ” and that “[n]o additional time will be allowed for transferring answers.” Ruiz Decl. ¶ 3; NBME Manual at 18.
Plaintiff agrees that it was likely that he was read the thirty-minute warning during the exam, and he admits that he knew that he was to stop filling in the bubbles on the answer sheet once time had been called. Chenari Dep. 217:5-13. However, when Ruiz called time on the exam, plaintiff realized he had not filled in answers on an entire page of the answer sheet, and he continued to transfer his answers from his test booklet to the answer sheet after time had expired. Id. 266:10-267:9. Ruiz asked plaintiff to stop transferring his answers, but plaintiff did not. Id. 269:1-18. Ruiz eventually approached plaintiff and reached over him to take his exam booklet, but plaintiff “put [his] hand over the booklet and the exam and just continued to bubble in [his] answers.” Id. 269:19-270:6. Plaintiff continued filling in his answer sheet for between ninety seconds and two minutes after the exam had concluded. Id. 271:10-13. Once plaintiff had filled in all of the remaining answers, Ruiz collected his answer sheet, and plaintiff left the exam room. Id. 278:7-280:21.
Later that day, Ruiz reported the incident via email to Dean Goldberg, Dean Haywood, and other faculty, explaining that plaintiff continued transferring his answers after time had been called, even after Ruiz “told him 3 times to put his pencil down.” Ex. 13 to Def.’s Mot. [Dkt. # 18- 13] at 1. She informed the faculty members that when she attempted to take the exam and answer sheet away from plaintiff, “he became aggressive and would not allow [her] to take the exam/answer sheet, ” and that he “put both of his arms on top of the exam and answer sheet and kept filling the circles.” Id. Ruiz also stated that plaintiff approached her after the incident and apologized, and she told him that his behavior was not appropriate. Id.
Alleged misconduct by students at the Medical School is governed by the Regulations for M.D. Candidates, which includes an Honor Code. Decl. of Rhonda M. Goldberg, Ex. 8 to Def.’s Mot. [Dkt. # 18-8] (“Goldberg Decl.”) ¶ 3; Ex. A to Goldberg Decl. [Dkt. # 18-8] (“Regulations”). The Honor Code identifies a number of specific violations, and it also directs that “[s]tudents will not . . . [v]iolate any other commonly understood principle of academic honesty.” Regulations § F(2)(a)(6). Plaintiff received a copy of the Regulations, including the Honor Code, when he enrolled at the Medical School in August 2010, and he signed a document acknowledging that he had reviewed them. Chenari Dep. 210:12-211:16; Ex. 14 to Def.’s Mot. [Dkt. # 18-14] at 2.
In response to Ruiz’s email regarding plaintiff’s conduct at the December 14, 2012 exam, Dean Goldberg initiated proceedings to address a possible violation of the Honor Code. Goldberg Dep. 21:8-21. On February 4, 2013, Goldberg met with plaintiff to discuss the incident. Chenari Dep. 293:3-6. She provided plaintiff with a copy of the Regulations and an Honor Code violation report, which included emails from Ruiz and a student describing plaintiff’s conduct at the exam. Goldberg Dep. 22:8-18; Chenari Dep. 293:7-17; Ex. 15 to Def.’s Mot. [Dkt. # 18-15] (“Honor Code Violation Report”). She gave plaintiff the opportunity to provide his version of events, and he explained that “he hadn’t finished bubbling in his answers and he needed to do that and he probably made a mistake.” Goldberg Dep. 22:19-23:3.
Pursuant to the Regulations, Goldberg referred the matter to a Subcommittee on Professional Comportment (“Subcommittee”). Regulations § G(4)(c); Goldberg Dep. 23:6-24:10. Dean Goldberg provided plaintiff with notice of the composition of the Subcommittee as is required by the Regulations, and plaintiff gave his approval. Regulations § G(5)-(6); Ex. 16 to Def.’s Mot. [Dkt. # 18-16]. The Subcommittee interviewed plaintiff about the incident and provided him with the opportunity to give a statement, but he declined. Regulations § G(7); Chenari Dep. 305:12-19, 306:16-307:1.
On March 15, 2013, the Subcommittee issued its written report, in which it “unanimously concluded, by a preponderance of the evidence . . . that Mr. Chenari violated Section F(2)(a)(6) of the Honor Code that states that students will not ‘violate any other commonly understood principles of academic honesty.’” Ex. 17 to Def.’s Mot. [Dkt. # 18-17] (“Subcommittee Report”) at 4. The Subcommittee agreed that plaintiff should receive an “F” on the exam and an “F” in the course, and that plaintiff’s transcript should state that the grade was based on a finding of academic dishonesty. Id. at 5. Three Subcommittee members recommended that plaintiff be dismissed from the Medical School, and one member recommended that he be suspended for a year. Id.
When a student is recommended for dismissal or suspension, the Regulations require that the case be referred to the Medical Student Evaluation Committee (“MSEC”). Regulations § G(13). The MSEC held a hearing in plaintiff’s case on April 18, 2013, at which plaintiff gave a statement and was briefly questioned. Ex. 19 to Def.’s Mot. [Dkt. # 18-19] (“MSEC Recommendation”); Regulations § G(13). Plaintiff also submitted a written personal statement, in which he admitted that he “continued to transfer [his] answers from the exam booklet to the . . . answer sheet” in “blatant disregard for the rules and for the rights of [his] fellow students and those of Ms. Ruiz.” Ex. 18 to Def.’s Mot. [Dkt. # 18-18] (“Personal Statement”). Plaintiff called his behavior “deplorable, ” and he admitted that he acted in “blatant disregard of the authority of Ms. Ruiz and th[e] University.” Id. He insisted that he “did not act dishonestly nor was [he] untruthful, ” but he recognized that “[his] actions were a clear violation of the most basic rules of th[e] University.” Id. Plaintiff asked the MSEC “to allow [him] to continue as a medical student” at the University. Id. Plaintiff did not mention his ADHD at any point in his Personal Statement, nor did he allege that he suffered from any disability or ask for any accommodation. See id.
After reviewing the Subcommittee Report and considering plaintiff’s testimony and his Personal Statement, the MSEC issued a written opinion on April 30, 2013, in which it unanimously recommended that plaintiff be dismissed from the Medical School. MSEC Recommendation.
On May 6, 2013, the Dean of the Medical School, Dr. Jeffrey Akman, reviewed plaintiff’s file and met with him to discuss the matter. Regulations § G(14); Chenari Dep. 318:3-20; Ex. 20 to Def.’s Mot. [Dkt. # 18-20] (“Akman Dep.”) 16:6-17:1. Plaintiff did not mention his ADHD during this meeting. Akman Dep. 17:2-8; see also Chenari Dep. 329:8-330:2. On May 22, 2013, Akman rendered his final decision in plaintiff’s case, making the following findings:
[Y]our refusal to follow instructions and your reaction - after being instructed multiple times to put your pencil down - was well outside the bounds of what we expect from a future physician. Based upon my review, I have decided to uphold the recommendation of the Subcommittee and of the MSEC for dismissal for academic dishonesty.
Ex. 21 to Def.’s Mot. [Dkt. # 18-21] (“Akman Letter”) at 2. The letter advised plaintiff that he had the right to appeal the decision to the Provost and Executive Vice President for Academic Affairs, pursuant to section G(17) of the Regulations. Id. at 3; Regulations § G(17).
On May 30, 2013, through counsel, plaintiff appealed the dismissal decision to Provost Steven Lerman. Ex. 22 to Def.’s Mot. [Dkt. # 18-22] (“Appeal Letter”). In his appeal, plaintiff admitted that he “was clearly guilty of openly violating the rules of the exam when he continued to pencil in his answers after time was up, ” and that he was also “guilty of insubordination when he did not comply with the proctor’s request to put down his pencil.” Id. at 1. But plaintiff maintained that the dismissal was inappropriate because it was based on a charge of “academic dishonesty, ” and plaintiff “did not cheat, lie, dissemble, or do anything that could reasonably be interpreted as dishonest” because his actions lacked the “element of deceit.” Id. Once again, plaintiff’s ADHD was not mentioned as part of the appeal. See id.
On July 8, 2013, Lerman denied plaintiff’s appeal, finding that “the Regulations were complied with in all aspects and that [plaintiff] [was] afforded all of the due process rights set forth in the Regulations.” Ex. 24 to Def.’s Mot. [Dkt. # 18-24] (“Lerman Letter”). He upheld the decision to dismiss plaintiff from the Medical School. Id.
Plaintiff filed this lawsuit on May 30, 2014, bringing claims for breach of contract and breach of the implied covenant of good faith and fair dealing, and alleging discrimination, failure to accommodate, and retaliation in violation of the Rehabilitation Act and the Americans with Disabilities Act. Compl. On August 10, 2015, defendant moved for summary judgment on all four of plaintiff’s claims. Def.’s Mot.; Mem. of P. & A. in Supp. of Def.’s Mot. [Dkt. # 18] (“Def.’s Mem.”). Plaintiff opposed the motion on September 18, 2015, Pl.’s Opp., and defendant filed its reply on October 2, 2015. Def.’s Reply to Pl.’s Opp. [Dkt. # 25] (“Def.’s Reply”).
STANDARD OF REVIEW
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). To defeat summary judgment, the non-moving party must “designate specific facts showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted).
The mere existence of a factual dispute is insufficient to preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A dispute is “genuine” only if a reasonable fact-finder could find for the non-moving party; a fact is “material” only if it is capable of affecting the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In assessing a party’s motion, the court must “view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing the summary judgment motion.’” Scott v. Harris, 550 U.S. 372, 378 (2007) (alterations omitted), quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam).
I. Defendant is entitled to summary judgment on Counts I and II because the University had a rational basis for dismissing plaintiff from the Medical School.
In Count I, plaintiff alleges that he had a contract with the University based on his acceptance, his tuition payments, and the Regulations, and he insists that the University breached its contractual obligations by:
(a) denying Plaintiff his right not to be sanctioned unless the decision maker is persuaded by a preponderance of the evidence that he is guilty as is set forth in the GWU Guide to Student Rights and Responsibilities, Section V (B)(4); and
(b) finding Plaintiff responsible for a violation of the Honor Code Section F(2)(a)(6), which states that students may not “violate any other commonly understood principals of academic dishonestly” [sic] when, in fact, no such ...