United States District Court, E.D. Tennessee
For Zeeshan Shaikh, Plaintiff: Daniel Logue Ellis, William A Allen, Mostoller, Stulberg, Whitfield & Allen, Oak Ridge, TN.
For Lincoln Memorial University, Defendant: John E Winters, LEAD ATTORNEY, Kramer, Rayson LLP (Knox), Knoxville, TN.
Pamela L. Reeves, UNITED STATES DISTRICT JUDGE.
In this action, plaintiff claims that defendant violated his rights under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973, by refusing to provide him reasonable accommodations
for taking tests and refusing to provide a decelerated curriculum that would give plaintiff additional time to complete courses at the school. Currently pending before the court is defendant's motion for summary judgment [R. 9], to which plaintiff has responded [R. 22]. The court has carefully considered the pending motion, plaintiff's response, and the supporting exhibits in light of the applicable law. For the reasons stated herein, the court finds defendant's motion for summary judgment well-taken, and the motion will be granted.
I. Factual Background
LMU's DeBusk College of Osteopathic Medicine offers a four-year, full-time academic and clinical curriculum leading to a Doctor of Osteopathic Medicine degree. The curriculum includes two years of pre-clinical science classes and two years of clinical rotations. During the relevant time period, LMU posted all lecture notes and power points prepared by instructors on an electronic Blackboard approximately one week before the class. LMU also posted a videotape of each lecture on its media site on or about the night after the lecture was conducted. LMU students, including plaintiff, had access to the materials posted on LMU's electronic Blackboard and the lecture videotapes on its media site. Students could review the materials on the electronic blackboard and the lecture videotapes as many times as necessary.
Prior to his admission to LMU, plaintiff was diagnosed with Attention Deficit/Hyperactivity Disorder (ADHD) and Dyslexia. Plaintiff was prescribed Adderall to treat his ADHD, and he took Adderall during the period he was a student at LMU. Adderall helped with plaintiff's symptoms by making him more focused. Prior to being accepted to LMU, plaintiff disclosed to LMU that he had difficulty reading. He made this disclosure in the personal statement he submitted to LMU and during his interview with LMU officials.
Plaintiff submitted documentation of his learning disability in reading and ADHD to Jonathan Leo, Ph.D, LMU's Associate Dean of Students, in April 2009, before beginning classes. Based on the documentation, Dr. Leo testified that he determined plaintiff had a significant learning disability that affected his ability to read and comprehend written material. On April 27, 2009, plaintiff sent an email to Leo, inquiring about accommodations for his reading difficulties. On May 15, 2009, in response to plaintiff's request for accommodations, Dr. Leo stated:
You will get time and a half on written exams and a quiet room. I'm on the road right now. But I will be back in the office tomorrow if you want to talk about it.
[Plaintiff's Dep. Ex. 2]. Plaintiff responded to Dr. Leo's email stating:
That sounds fine. I have received 50% more time throughout undergrad and that worked fine.
Id. Plaintiff avers no formal written accommodation plan was prepared by LMU in response to his request for accommodations. The LMU Student Handbook for Fall 2009 sets out the procedure for receiving reasonable accommodations as follows:
All documentation related to the student's disability and accommodations shall be maintained by the Assistant Dean of Students. Upon receipt of the documentation, the Assistant Dean of Students will meet with the student, either in person or by telephone, to discuss and make arrangements for accommodations for the upcoming semester. A Student Disabilities form will be completed listing the agreed upon accommodations, and will be signed by the student,
the student's faculty members, and the Assistant Dean of Students. This process shall be followed each semester for which the student wishes to request accommodations. If a problem arises concerning the reasonable accommodations, the student should contact the Assistant Dean of Students.
[Handbook, p. 85, Defendant's Appendix].
Plaintiff did not request more than 50 percent additional time for examinations prior to the start of classes at LMU in Fall 2009. Plaintiff was allowed to sit at the front of his classes at LMU, as was recommended to him. In addition, plaintiff had access to the school's electronic Blackboard and media site to review lecture notes and power points, as well as videotapes of all lectures. During the Fall 2009 semester, plaintiff took the following classes: Medical Gross Anatomy, Molecular Fundamentals of Medicine I (MFM-1), Foundations of Modern Health Care, Osteopathic Principals and Practice I, and Essentials of Patient Care I, all of which were part of LMU's required pre-clinical curriculum. In August 2009, the Anatomy Department assigned a tutor to plaintiff.
In October 2009, Plaintiff stopped studying Medical Gross Anatomy to focus on MFM-I. On December 16, 2009, plaintiff did not take his MFM-I examination. Plaintiff sent an email to Dr. Leo, stating:
I did not take the exam today. I've been having some personal issues and unfortunately, it has interfered with my studies. I am trying to put these issues behind me and trying to move on. I realize this is not acceptable and do feel terrible about the whole situation. I am not sure what happens now.
[Plaintiff's Dep. Ex. 4].
On December 17, 2009, at Leo's recommendation, plaintiff sent a letter to Dean Ray Stowers, asking for permission to take a leave of absence from LMU and return to the school in Fall 2010. Dean Stowers granted the request the same day and advised plaintiff that he could submit a written request on or before April 1, 2010, to return to LMU in Fall 2010, at which time he would be required to retake all the courses of that semester. Had Dean Stowers not granted plaintiff's request for a leave of absence, plaintiff would have been at risk for being dismissed from school for failing two classes in the Fall 2009 semester.
Plaintiff sent a letter to Dr. Leo on March 19, 2010, requesting permission to return to LMU as a full-time student in Fall 2010. When plaintiff applied for readmission, he provided documentation to LMU of a program that he had completed at Marshall University specifically designed for medical students with learning disabilities and/or ADHD. However, plaintiff's March 19, 2010 letter did not request LMU to provide him with any accommodations other than those provided to him during the Fall 2009 semester. Plaintiff returned to LMU as a student for the Fall 2010 semester, and took classes under the accommodations provided to him the previous year.
During the Fall 2010 semester, plaintiff earned a grade of 69.58% in Medical Gross Anatomy, which was rounded up to 70%, allowing him to pass the class. At no time during the Fall 2010 semester, did plaintiff request LMU to provide him with any different or additional accommodations. Nor did plaintiff request any different or additional accommodations prior to the start of the Spring 2011 semester.
During the Spring 2011 semester, plaintiff failed Molecular Fundamentals of Medicine II (MFM-II), an eleven-week course that introduced microbiology, immunology, pathology, and pharmacology to prepare students for more in-depth courses later.
Plaintiff received the failing grade in MFM-II on February 16, 2011. On his first MFM-II exam, plaintiff completed the exam 36.5 minutes early and received a grade of 54.45%. On his second MFM-II exam, plaintiff completed the exam 11.5 minutes early and received a grade of 66%.
After failing MFM-II, plaintiff received a failing grade in Behavior Neuroscience (BNS) on April 25, 2011. On his first BNS exam, plaintiff completed the exam 25 minutes early and received a grade of 64.37%. On his third BNS exam, plaintiff completed the exam 9 minutes early and received a grade of 64.63%. During his examination, plaintiff acknowledged that it was his responsibility to use all the time LMU provided for his examination. He testified as follows:
Q. You would agree that was up to you to use the time that [LMU] provided to take exams, wouldn't you?
Q. And that if you failed to use all the time that was given to you, that was your fault?
. . .
Q. And it was important to use all that time to make sure you carefully read the questions so that you could better answer the questions, is that correct?
Q. You would agree that it's not LMU's fault that you didn't use all the time that was given to you on your exams, wouldn't you?
A. On all?
Q. Wasn't [LMU]'s fault?
A. It wasn't [LMU]'s fault that I didn't use ...