Summary
holding that it was not unreasonable for a medical school to require a learning impaired student to pass a core curriculum requirement
Summary of this case from Spychalsky v. SullivanOpinion
CV 97-4189 (RR)
August 21, 2000
BENJAMIN Z. HOLCZER, ESQ., New York, New York, Attorney for Plaintiff
THE HONORABLE ELLIOT SPITZER, ATTORNEY GENERAL OF THE STATE OF NEW YORK New York, New York, By: June Steinberg, Assistant Attorney General Attorney for Defendants
Memorandum and ORDER
Defendants, the State University of New York Health Sciences Center at Brooklyn (hereinafter "SUNY"), and various of its named administrators and professors who are sued individually and in their official capacities, move for summary judgment against plaintiff Francisco Garcia. Garcia was dismissed from SUNY's medical school in 1995 after twice failing satisfactorily to complete the first-year curriculum. Thereafter, when plaintiff was diagnosed with Attention Deficit Disorder ("ADD"), SUNY offered to reinstate him on certain conditions that plaintiff rejected. Garcia now sues defendants for money damages claiming that defendants' actions violated his rights under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. (1995), the Rehabilitation Act, 29 U.S.C. § 794 et seq. (1999), the First Amendment, and the Due Process and Equal Protection Clauses of the Constitution, see 42 U.S.C. § 1983 (1994 Supp. 2000). Plaintiff further seeks damages from SUNY for breach of express and implied contract, breach of the covenant to deal in good faith, intentional and negligent infliction of emotional distress, misrepresentation, prima facie tort, and estoppel, all claims arising in state law. Having reviewed the submissions of the parties and heard oral argument, the court finds that defendants are entitled to summary judgment.
Factual Background
In considering a motion for summary judgment, the court is obliged to view the evidence in the light most favorable to plaintiff Garcia, the nonmoving party. See Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999); Nationwide Life Ins. Co. v. Bankers Leasing Ass'n. Inc., 182 F.3d 157, 160 (2d Cir. 1999).
1. Garcia's First Year at SUNY
Francisco Garcia entered SUNY's medical school in the fall of 1993. He quickly experienced difficulty with the workload and discussed his problem with various school officials. Gerlinde Luster, who worked in the Academic Development Center, suggested that Garcia might have dyslexia and referred him to a student-run tutoring program. Defendant Lorraine Terracina, the Dean of Student Affairs, and Albert Kaufman, an Assistant Dean, simply encouraged plaintiff to try harder. At the conclusion of the first year, Garcia failed to pass four courses: gross anatomy, human genetics, neuroscience, and epidemiology. In four other classes — biochemistry, embryology, physiology, and histology/cell biology — Garcia's grades were in the lowest quartile of passing students.
At the end of each academic year, a Grades Committee at SUNY reviews each student's performance and recommends to the Evaluation and Promotions Committee ("Promotions Committee") whether the student should be promoted, required to do remedial work, required to repeat the school year, or dismissed. After reviewing Garcia's 1993-94 record, the Grades Committee recommended that plaintiff repeat the first-year curriculum. Garcia appealed this decision to the Promotions Committee, proposing that he be allowed to take make-up exams in his failed courses rather than repeat the entire first year. In support of this proposal, Garcia submitted a letter to the Promotions Committee attributing his poor grades to two factors: (1) the extraordinary time he had devoted to a personal project producing an independent medical documentary film and an accompanying book, and (2) the dissolution of a three-year personal relationship within two weeks of final examinations. He expressly disclaimed any "difficulty understanding concepts, solving problems or learning material." He asserted that he was "quite capable of performing at a high level," that he had "learned to manage my time more realistically," and that he was now past "the most trying part of the breakup of my relationship." Def. Exh. E. Garcia also appeared before the Committee in person on June 30, 1994 to argue his appeal. Ultimately, the Promotions Committee rejected the appeal and unanimously voted that Garcia would have to repeat the first-year curriculum.
"The previous month, Garcia and six other students who had also failed gross anatomy filed a protest with the Anatomy Department regarding the requirement that they retake the course over the summer. Apparently, two tests were given to students taking gross anatomy, a mid-term and a final, each of which covered half the material in the course. Garcia and his fellow protestors asserted that since their failing grade was based on an unsatisfactory performance on the mid-term, and since each of them had satisfactorily performed on the final, they should only have to repeat the first part of the course. Their petition was denied.
2. Garcia's Second Attempt at the First-Year Curriculum
SUNY policy requires any student repeating an academic year to sit for all courses except those in which a grade of "honors" or "high pass" was achieved. This meant that Garcia was required to retake eight of his eleven first year classes. SUNY policy further provides that any student repeating an academic year must be placed on probation. A repeating student who receives a deficient grade or otherwise violates the conditions of probation will have his entire performance reviewed by the Promotions Committee for possible dismissal.
In 1994-95, when Garcia repeated the first-year curriculum, he again failed neuroscience. Although he passed all other previously failed subjects, he continued to struggle in embryology, passing by only .5 point, and histology/cell biology, passing by 1.0 point. After reviewing this record, the Grades Committee recommended that Garcia be dismissed from the SUNY medical program. In a June 27, 1995 letter to the Promotions Committee, Garcia appealed this decision and proposed that he retake the neuroscience exam rather than face dismissal. He did not offer any explanations for his poor academic performance.
Garcia's original grade was 66.5, whereas 67.5 was required to pass. Plaintiff apparently asked to have his test reviewed, which resulted in a professor awarding him an additional .4 points to acknowledge that one of Garcia's errors was in response to a possibly ambiguous question. The final grade of 66.9 was still not enough to pass the course.
Soon thereafter, Garcia met personally with Dr. Terracina. According to plaintiff, Dr. Terracina told him that "she could not imagine" the Promotions Committee denying his request to retake the failed neuroscience exam. Garcia Aff. ¶ 66. She further advised him that it was not necessary for him to appear in person before the Promotions Committee.
On June 29, 1995, the Promotions Committee rejected Garcia's appeal and voted 7 to 3 in favor of his dismissal. The meeting minutes reveal that after the vote was taken, one Committee member, Dr. Eli Friedman, noted that he had drawn a negative inference from Garcia's failure to appear. Dr. Terracina explained that plaintiff had asked her if he was required to appear — a concern prompted by his negative experience with the Committee the previous year — and that she and another colleague had advised him that it was not mandated. Upon learning this fact, Dr. John Boyce moved to reopen discussion on plaintiffs dismissal, but when the motion was not seconded, the Committee decision to dismiss Garcia stood undisturbed. Dr. Terracina advised plaintiff of the ruling in writing the same day.
The dismissal was erroneously entered on plaintiffs transcript as August 9, 1995, a date that coincides with subsequent discussions about plaintiffs reinstatement. Although plaintiff submits that this suggests that SUNY's proposal to reinstate him was not made in good faith, he has developed no evidence to indicate that the transcript date was anything other than an administrative posting error.
3. Garcia's Disability Diagnosis
Garcia asserts that sometime thereafter, Dr. Terracina referred him to the Office of Academic Development for possible disability testing. As a result, in July 1995, he was examined by Dr. Elizabeth Auricchio, a clinical psychologist. After administering a variety of tests, Dr. Auricchio concluded that Garcia suffered from ADD. In her detailed report, Dr. Auricchio stated that Garcia has "superior to very superior intellectual potential," but, because of ADD, "reads slowly and inaccurately" and has "problems with organization and
. . . attention to details." Pl. Exh. A at 7. She concluded that Garcia "has the cognitive capacity to complete medical school" and recommended that he "be permitted to continue to the second year," that he consider using a medication such as Ritalin to help him with focus and concentration, and that he be allowed more time and frequent breaks during future examinations. Id.
4. SUNY's Conditions for Readmitting Garcia to the Medical School In August 1995, Garcia transmitted a copy of Dr. Auricchio's report to defendant, Dean Irwin M. Weiner. SUNY policy permits a dismissed student who has "additional information which was not presented to the Academic Promotions Committee" to seek further review from the Dean. Def. Exh. A at 2. On August 7, Dr. Weiner met with plaintiff and, according to Garcia, immediately readmitted him to the medical school and assured him that some satisfactory solution would be found to the problem of the failed neuroscience class. Later that same day, Garcia met with Dr. Terracina who told plaintiff that he would be readmitted to the medical school on condition he repeat the second and third trimesters of the first-year curriculum the following spring. Plaintiff was distressed at this proposal because of the time and money it would cost. On August 10, 1995, Garcia counter-proposed that he remain on academic probation, proceed immediately to the second-year curriculum, and simply retake the neuroscience exam the following summer.
"Garcia submits that the administration was unresponsive to his requests to take the make-up exam. The record reveals, however, that each request was promptly denied. See Def. Exh. N (dismissal notice); Def. Exh. P.
Plaintiffs proposal was formally denied in an August 11, 1995 letter from Dr. Weiner, who explained:
A student must successfully complete all basic science courses in the year in order to progress into the succeeding year. With your "Unsatisfactory" grade in Neuroscience, a major course in the first year curriculum, you are not eligible to take second year courses. Therefore your proposal of August 10, 1995 is not feasible and is not approved.
Def. Exh. P. Instead, Dr. Weiner set forth the following conditions for Garcia's readmission to SUNY medical school:
1) during the Fall, 1995 semester you will work with Ms Janice Walters in the Office of Academic Development to develop compensatory strategies for your learning disabilities;
2) during September, 1995 you must present a letter from a psychiatrist who has evaluated you for attention deficit disorder to Dr. Lorraine Terracina;
3) if the psychiatrist determines that you do have attention deficit disorder, you must provide Dr. Terracina with documentation that you have begun the recommended treatment program by October, 1995;
4) in January, 1996, you will be required to enroll in the first year curriculum and take all courses for the Spring, 1996 semester (second and third trimester) and pass all courses in order to continue your enrollment in the College of Medicine and in order to be promoted into the second year. Any deficient grades ("Conditional" or "Fail") will be grounds for dismissal from the College.Id.
By letter dated August 16, 1995, Garcia appealed this decision to defendant Russell L. Miller, the President of SUNY. When no relief was afforded, Garcia chose not to repeat the first-year curriculum on the conditions set forth by Dr. Weiner. Instead, he left medical school.
Discussion
I. Standard of Review
Summary judgment is appropriate only if there is no genuine issue of material fact in dispute, and if the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Heyman v. Queens Village Comm. for Mental Health, 198 F.3d 68, 71 (2d Cir. 1999). It is the moving party that has the initial burden of demonstrating that no material fact is in dispute. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). If this burden is met, the non-moving party must then come forward with sufficient evidence on elements essential to its case to support a verdict in its favor. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In reviewing the evidence adduced by the parties in support of or opposition to a motion for summary judgment, a court must resolve all factual ambiguities and draw all inferences in favor of the non-movant. See Heyman v. Queens Village Comm. for Mental Health, 198 F.3d at 71 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). Only if it is plain that no rational trier of fact could find in favor of the non-moving party will a court grant summary judgment. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587.
II. Sovereign Immunity
SUNY and the individual defendants sued in their official capacities ("state defendants") submit that plaintiffs damages claims under 42 U.S.C. § 1983, the ADA, the Rehabilitation Act, and state law are barred by the sovereign immunity protection of the Eleventh Amendment. They are correct as to the § 1983 and pendent claims. See Dube v. State University of New York, 900 F.2d 587, 594-95 (2d Cir. 1990) ( Eleventh Amendment bars § 1983 suit against SUNY, which is an integral part of the State of New York); see also Edelman v. Jordan, 415 U.S. 651, 663 (1974) (suits against state employees in their official capacities are barred by the Eleventh Amendment); Pennhurst State School Hosp. v. Halderman, 465 U.S. 89, 120-21 (1984) ( Eleventh Amendment bars federal suits against state officials for violations of state law);accord Ward v. Thomas, 207 F.3d 114, 119 (2d Cir. 2000) (rejecting federal suit against state officials under Eleventh Amendment); Catone v. Spielmann, 149 F.3d 156, 160 n. 1 (2d Cir. 1998) (citing Pennhurst regarding Eleventh Amendment bar on state law claims). Indeed, plaintiff concedes as much. Accordingly, the § 1983 and state law claims are dismissed as against the state defendants.
Plaintiff further concedes that two of the state claims, intentional infliction of emotion distress and prima facie tort, are barred by New York's one year statute of limitations for intentional torts.
Although the state claims are presently asserted only against SUNY, see Am. Compl. pp. 30-35, plaintiff, in his opposition papers, requests leave to amend the complaint again to assert those claims against the individual defendants. Since all federal claims against the individual defendants are being dismissed, the court declines to exercise supplemental jurisdiction over any state claims that could survive defendants' motion on the merits. See 28 U.S.C. § 1367 (c)(3). Thus, since amendment would serve no useful purpose, plaintiffs request is denied. See Koehler v. Bank of Bermuda (New York) Ltd., 209 F.3d 130, 138 (2d Cir. 2000) (leave to amend properly denied where it would be futile).
Defendants' Eleventh Amendment challenge to Garcia's ADA and Rehabilitation Act claims cannot, however, presently be upheld by a district court in this circuit. The court's analysis of this part of defendants' argument necessarily begins with Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55-58 (1996). In that case, the Supreme Court recognized that Congress can validly abrogate the states' sovereign immunity when it unequivocally expresses its intent to do so. See id. at 55-56. Defendants acknowledge that the ADA and Rehabilitation Act satisfy this requirement. But there is a second prong to the Seminole Tribe test: Congress's abrogation must constitute a proper exercise of its remedial powers under § 5 of the Fourteenth Amendment. This requires a congruence and proportionality between the injury to be prevented or remedied and the means adopted [by Congress] to that end." City of Boerne v. Flores, 521 U.S. 507, 520 (1997) (adopting "congruence and proportionality" test to distinguish between appropriate remedial legislation and impermissible substantive redefinition of Fourteenth Amendment rights). Defendants submit that the ADA and Rehabilitation Act do not constitute congruent and proportional responses to disability discrimination.
In recent years, the Supreme Court has struck down a number of federal statutes for failing to satisfy the "congruence and proportionality" requirement of Seminole Tribe. See Kimel v. Florida Bd. of Regents, 120 S.Ct. 631, 645-50 (2000) (Congress exceeded its authority under § 5 of the Fourteenth Amendment when it sought to abrogate states' immunity under the Age Discrimination in Employment Act); Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank, 119 S.Ct. 2199, 2207 (1999) (Patent Remedy Act did not satisfy congruence and proportionality test for abrogating Eleventh Amendment); City of Boerne v. Flores, 521 U.S. at 531-32 (Religious Freedom Restoration Act was not appropriate legislation under § 5 of the Fourteenth Amendment and, therefore, did not abrogate states' sovereign immunity).
Although the Supreme Court has not yet addressed the issue of congruence and proportionality with respect to the ADA and Rehabilitation Act, it is expected that it will do so next year, thereby resolving a split in the circuit courts. Specifically, the Court has granted certiorari review in Garrett v. University of Alabama at Birmingham Bd. of Trustees, 193 F.3d 1214 (11th Cir. 1999). In that case, the Eleventh Circuit upheld the ADA's abrogation of Eleventh Amendment immunity. This court notes that the Second Circuit reached the same conclusion in Muller v. Costello, 187 F.3d 298 (2d Cir. 1999), after reviewing in detail the statutory language and history of the ADA, as have three other circuits,Martin v. Kansas, 190 F.3d 1120, 1128 (10th Cir. 1999); Coolbaugh v. Louisiana, 136 F.3d 430, 437 (5th Cir. 1998); Clark v. California, 123 F.3d 1267, 1270-71 (9th Cir. 1997). When the Eighth Circuit, en banc, gave equally careful consideration to the issue, however, its members divided seven to four in finding that the ADA exceeded Congress's § 5 power to abrogate Eleventh Amendment immunity. See Alsbrook v. City of Maumelle, 184 F.3d 999, 1005-10, 1012-16 (8th Cir. 1999) (en banc). The Third and Seventh Circuits have similarly ruled. See Lavia v. Pennsylvania Dep't of Corr., No. 99-3863, 2000 U.S. App. Lexis, at *35-36 (3d Cir. Aug. 8, 2000); Erickson v. Board of Govs. for Northeastern Ill. Univ., 207 F.3d 945, 952 (7th Cir. 2000).
Unless and until the Supreme Court rules otherwise, this court is, of course, controlled by the Second Circuit. Relying on Muller v. Costello, the court finds that the Eleventh Amendment does not bar plaintiff from suing defendants under the ADA. Further, since the Second Circuit has applied its Muller abrogation analysis to Section 504 of the Rehabilitation Act, see Kilcullen v. New York State Dep't of Labor, 205 F.3d 77, 79 (2d Cir. 2000); accord Jackan v. New York State Dep't of Labor, 205 F.3d 562, 565 (2d Cir. 2000) (rejecting Eleventh Amendment challenge to ADA and Rehabilitation Act claims against state agency), the court likewise rejects SUNY's assertion that it is immune from suit under that statute.
In sum, the court finds that sovereign immunity entitles the state defendants to summary judgment on plaintiffs § 1983 and pendent state claims. Sovereign immunity does not, however, dictate summary judgment in favor of SUNY on plaintiffs ADA and Rehabilitation Act claims.
III. The Sufficiency of the Remaining Claims
Defendants submit that they are nevertheless entitled to summary judgment on all remaining federal claims because plaintiff has failed to adduce sufficient admissible evidence to support a verdict in his favor. They are correct.
A. Disability Claims
Garcia claims that SUNY violated Title II of the ADA and Section 504 of the Rehabilitation Act when it failed to readmit him to the medical school under conditions that reasonably accommodated his learning disability. Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Title II was expressly modeled after Section 504 of the Rehabilitation Act, which provides that "[n]o otherwise qualified individual with a disability . . ., shall, solely by reason or her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794.
There is no significant difference in the analysis applicable to claims under the ADA and the Rehabilitation Act. See 42 U.S.C. § 12133 ("The remedies, procedures, and rights set forth in [the Rehabilitation Act] shall be the remedies, procedures, and rights [applicable to the ADA]."); Bragdon v. Abbott, 524 U.S. 624, 632 (1998) (stating that courts are required to "construe the ADA to grant at least as much protection as provided by the regulations implementing the Rehabilitation Act");Rodriguez v. City of New York, 197 F.3d 611, 618 (2d Cir. 1999) (recognizing that "Section 504 of the Rehabilitation Act and the ADA impose identical requirements"). Both are scrutinized under the burden shifting standards for Title VII claims articulated by the Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792 (1973). See, e.g., Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir. 1998) (applyingMcDonnell Douglas test in ADA case); Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 722 (2d Cir. 1994) (applying McDonnell Douglas test in Rehabilitation Act case). Under this test, a plaintiff bears the initial burden of establishing by a preponderance of the evidence a prima facie case of disability discrimination. If a prima facie case is established, the burden of production shifts to defendant to adduce admissible evidence that, if believed by the fact finder, would support the conclusion that unlawful discrimination was not the cause of the actions in dispute. If this burden is met, plaintiff must show that the proffered reason was in fact false and that plaintiffs disability was the real reason for the action. See Heyman v. Queens Village Comm. for Mental Health, 198 F.3d at 72; see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993) ("a reason cannot be proved to be a "pretext for discrimination' unless it is shown both that the reason was false and that discrimination was the real reason"); Fisher v. Vassar College, 114 F.3d 1332, 1335-36 (2d Cir. 1997) (en banc) (same).
For plaintiff Garcia to make out a prima facie case of disability
discrimination, he must show that (1) he is disabled, (2) he was otherwise qualified" to remain a student at SUNY medical school, with or without reasonable accommodation, (3) he was dismissed solely because of his disability, and (4) SUNY is a public entity under the ADA or receives federal financial assistance as specified by the Rehabilitation Act. In seeking summary judgment, SUNY does not dispute its status as a public entity or its receipt of federal financial assistance. Instead, it submits that plaintiff cannot establish the other three elements of his disability claims.
1. Disability
Defendant's claim that Garcia cannot establish a disability cannot be resolved on the present record as a matter of law. "Disability" is defined under the ADA and Rehabilitation Act to include any physical or mental impairment that substantially limits one or more of the major life activities of an individual, including the ability to learn. See 42 U.S.C. § 12 102(2); 29 U.S.C. § 705 (9)(B). Plaintiff has submitted reports from clinical psychologists Elizabeth Auricchio and James Lawrence Thomas, both of whom diagnose him to suffer from ADD. In support of their conclusion that this condition substantially limits plaintiffs ability to learn, the doctors cite test results indicating that Garcia, although possessed of a high native intelligence, a well-developed vocabulary, and strong abstract reasoning skills, has considerable difficulty with his reading speed and comprehension, his organization, and his attention to detail, deficiencies that have made it impossible for him to master a medical school curriculum without accommodations.
In urging summary judgment, SUNY does not now dispute these findings. Instead, it submits that plaintiff is not "disabled" within the meaning of the ADA and Rehabilitation Act because his impairments can be corrected by medication, specifically Ritalin. In support, it citesSutton v. United Airlines, Inc., 119 S.Ct. 2139 (1999), a case in which defendant airline refused to hire plaintiffs as pnots because their uncorrected vision was worse than 20/100, even though corrective lenses gave them vision of 20/20 or better. The Court ruled, inter alia, that federal statutory disability claims are "restricted to only those whose impairments are not mitigated by corrective measures." Id. at 2149. The flaw in SUNY's argument, however, is that it is based on assumptions about the general corrective powers of Ritalin with respect to ADD rather than on a specific assessment of the actual correction achieved in Garcia's case. This runs counter to Sutton, wherein the Supreme Court emphasized that "whether a person has a disability under the ADA is an individualized inquiry." Id. at 2147. In sum, a court presented with a summary judgment motion must consider whether corrective measures actually improved a plaintiffs situation; it cannot speculate. It is also appropriate to consider any adverse side effects caused by a corrective medication. See id.
When the evidence of disability in this case is reviewed in light of this individualized approach, it is apparent that serious factual questions exist as to whether Ritalin can adequately improve plaintiffs disabling condition. Certainly, Garcia's treating psychiatrist, Dr. Matthew Goulet, was initially optimistic, advising Dr. Weiner in August 1995 that plaintiff had begun a course of medication, that the positive effects would be immediate, and that plaintiffs school performance will improve significantly" if he were allowed to begin classes at the end of the month. Def. Exh. AA. In his August 1999 affidavit, however, plaintiff candidly reveals that Ritalin has helped but not eliminated his ADD problems:
35. I was, and still am, easily distracted. While reading a book or taking a test, I become increasingly distractible by the smallest things like someone coughing or a barely audible distant conversation. As the time period within which I am required to concentrate gets longer, I lose steam, so that I get more distracted as time goes on. This is why I take breaks. It refreshes me. With Ritalin, which I take once a day, it is like an extra gas tank attached to my brain. It enables me to keep going where I would have flagged before. I am far more productive.
36. This new found energy and ability to concentrate comes at a cost, however. First, Ritalin only works at maximum efficiency for 2-1/2 to 3 hours. My physician will not approve me to take more than one tablet per day, as that would be dangerous to my health, making me overstimulated. When the Ritalin wears off, I am tremendously fatigued and lose the ability to concentrate as if I had never taken it at all. It is like a sugar surge, great while it lasts, but leaving one more fatigued later on.
37. Second, Ritalin leaves me with many adverse symptoms. Ritalin is a highly controlled drug and can be habit forming. It is a stimulant and side effects can be serious, not unlike, but less severe than phen-phen, which was taken off the market not long ago, after several people were harmed by it. With Ritalin, my heart races, I am more anxious, jumpy and agitated; I become overly talkative, which can be a problem in business; I tend to snap at people when annoyed; I get "dry mouth"; my appetite is suppressed while on the Ritalin, but I become ravenous when it wears off and I perspire more. In short, it is a medication which alleviates certain symptoms, but creates others which are difficult to manage and around which I must live my life.
Pl. Aff. at 13-14.
The specific findings of various doctors as to the nature and scope of plaintiffs limitations, coupled with Garcia's acknowledgment that he receives only limited benefits from Ritalin, prevent this court from finding as a matter of law that no fact finder could conclude that plaintiff remains disabled despite a course of prescribed medication.
2. Otherwise Qualified/Reason for Dismissal
The remaining two elements of a prima facie case require plaintiff to show that (1) with or without reasonable accommodation, he was qualified to continue in defendant's medical program, and (2) but for his disability, he would not have been dismissed. In this case, the elements do not segregate neatly. It is undisputed that SUNY decided to dismiss Garcia from the medical program after he failed satisfactorily to complete the core curriculum for the second time and before he was diagnosed with a learning disability. In this context, his dismissal was plainly based on inadequate academic performance and not any disability bias. Nevertheless, it is also undisputed that after learning of Garcia's disability, SUNY agreed to readmit him on certain conditions. This suggests that defendant did think Garcia was qualified to participate in the medical school program with certain accommodations for his disability. Plaintiff ultimately rejected defendant's offer and proposed alternative conditions for his readmission. In essence, then, plaintiffs disability claim reduces to an inquiry as to whether defendant's accommodations were so unreasonable as to constitute a subterfuge for discrimination based on disability. See Doe v. Pfrommer, 148 F.3d 73, 83 (2d Cir. 1998) (recognizing that the final two elements of the prima facie case often merge into a single inquiry about the requisite accommodation).
In reviewing the parties' dispute over reasonable accommodations on a motion for summary judgment, this court is mindful of the general rule that educational institutions' academic decisions are entitled to considerable deference. Indeed, as the Supreme Court ruled in rejecting another medical student's challenge to his dismissal from an academic program, judges must respect the professional judgment of a faculty and "may not override it unless it is such a substantial departure from accepted academic norms as to demonstrate the person or committee responsible did not actually exercise professional judgment." Regents of Univ. of Michigan v. Ewing, 474 U.S. 214, 225 (1985) (citing Youngberg v. Romero, 457 U.S. 307, 323 (1982) (professional decisions presumptively valid")). The Second Circuit has scrupulously followed the academic deference rule." In Clements v. Nassau County, 835 F.2d 1000 (2d Cir. 1987), it upheld an award of summary judgment against a plaintiff who challenged her dismissal from a nursing program. The court explained:
In cases involving academic dismissal, educational institutions have the right to receive summary judgment unless there is evidence from which a jury could conclude that there was no rational basis for the decision [to dismiss] or that it was motivated by bad faith or ill will unrelated to academic performance.Id. at 1004.
Although each of these cases involved constitutional challenges to schools' decisions, courts regularly apply the academic deference rule to challenges arising under the ADA and Rehabilitation Act. See Wong v. Regents of Univ. of California, 192 F.3d 807, 817 (9th Cir. 1999); Amir v. St. Louis Univ., 184 F.3d 1017, 1028 (8th Cir. 1999); Wynne v. Tufts Univ. School of Medicine, 976 F.2d 791, 792 (1st Cir. 1992). Indeed, the Second Circuit has emphasized that because federal law seeks only to "ensure evenhanded treatment between the disabled and able-bodied," Doe v. Pfrommer, 148 F.3d at 82, schools are not required to "make substantial modifications" in "reasonable standards or program[s] to accommodate handicapped individuals," Doe v. New York Univ., 666 F.2d 761, 775 (2d Cir. 1981); see also Fink v. New York City Dep't of Personnel, 53 F.3d 565, 567 (2d Cir. 1995). Courts have been particularly reluctant to second-guess academic decisions regarding the program and standards applicable to medical students, since "the conferral of a degree places the school's imprimatur" upon the individual as someone qualified to pursue a physician's license. Kaltenberger v. Ohio College of Podiatric Med., 162 F.3d 432, 437 (6th Cir. 1998).
In this case, plaintiff has failed to adduce evidence that either SUNY's decision to dismiss him when he failed satisfactorily to complete the first-year curriculum for the second time, or its decision to readmit him and accommodate his learning disability on the conditions set forth in Dr. Weiner's August 11, 1995 letter were "a substantial departure from accepted academic norms." Regents of Univ. of Michigan v. Ewing, 474 U.S. at 225.
Certainly, nothing in the conclusory assertions of Dr. Louis G. Keith, a member of the Promotions Committee at Northwestern University Medical School, would support such a finding. Dr. Keith asserts that Garcia was subject to discriminatory treatment by the Grades and Promotions Committees, but it is undisputed that all actions taken by those groups pre-date Garcia's ADD diagnosis and thus would not support a disability claim under the ADA or Rehabilitation Act. Once SUNY did become aware of plaintiffs disability, it is similarly undisputed that Dr. Weiner reversed the Committees' decision to dismiss Garcia from the medical school. It is for this reason that the singular issue in this case focuses on SUNY's conditions and accommodations for Garcia's readmission. Although Dr. Keith labels SUNY's conditions "nothing short of cruel," Keith Aff. at ¶ 16, he submits no evidence regarding the policies and practices of Northwestern or any other accredited medical school confronted with similar circumstances that would support a conclusion that SUNY's actions in readmitting plaintiff constitute a "substantial departure" from accepted academic norms.
Similarly inadequate to demonstrate any bias against the disabled is plaintiffs assertion that unidentified members of the SUNY administration occasionally referred to him as a "nudnick," a Yiddish term for a "pestering, nagging, or irritating person; a bore." Oxford Dictionary of Foreign Words and Phrases at 289 (1997). At oral argument, plaintiffs counsel conceded that the term was used because Garcia was perceived as "outspoken"; he did not assert that the expression was used in relation to plaintiffs disability. Indeed, it appears that the comment pre-dated any disability diagnosis. The ADA and Rehabilitation Act, however, "prohibit discrimination only on the basis of disability," see Castallano v. City of New York, 142 F.3d 58, 70 (2d Cir. 1998), not other grounds.Cf. Cuoco v. Moritsugu, No. 98-2954, 2000 U.S. App. Lexis 18376, at * 21 (2d Cir. July 28, 2000) (isolated instances of "rudeness and namecalling do not rise to the level of a constitutional violation"). Accordingly, this evidence cannot support plaintiffs disability claim.
Garcia nevertheless insists that SUNY cannot be awarded summary judgment unless defendant adduces undisputed evidence showing that it considered his proposed alternative accommodations, their feasibility, and their cost and effect on the academic program. See Wynne v. Tufts Univ. School of Medicine, 932 F.2d 19, 26-28 (1st Cir. 1991); accord Wong v. Regents of Univ. of California, 192 F.3d at 818. This standard, reflected in the cited decisions from the First and Ninth Circuits, does not appear to have been adopted by the Second Circuit. Indeed, that court has long taken the position that a disabled plaintiff is not entitled to have all of his proposed accommodations adopted as long as the ones offered are "reasonable" to avoid discrimination based on disability. See Fink v. New York City Dep't of Personnel, 53 F.3d at 567. For precisely this reason, SUNY's failure to adopt Dr. Auricchio's recommendations for readmission cannot support his claim unless the conditions and accommodations proposed by SUNY are themselves unreasonable and a substantial departure from accepted academic norms. Indeed, although Dr. Auricchio is a respected psychologist, nothing in the record indicates that her expertise extends to the administration of a medical school curriculum.
Even assuming, however, that the higher standard of review reflected in the First and Ninth Circuit cases was applicable to Garcia's case, defendant would still be entitled to summary judgment. The contemporaneous correspondence between plaintiff and Drs. Weiner and Terracina makes plain that SUNY did consider Garcia's various proposals for resuming his medical studies after being diagnosed with ADD. Most important, SUNY was prepared to excuse Garcia's second failure of the first-year curriculum in light of his learning disability. As already noted, it was Dr. Auricchio's diagnosis of ADD that prompted Dr. Weiner to rescind the Promotion Committee's decision to dismiss Garcia and to readmit him to the medical school. While plaintiff was understandably concerned about the fact that the condition attached to his readmission — repetition and successful completion of the last two trimesters of the first-year curriculum — would further delay his medical studies and add to their cost, the undisputed fact remains that in August 1995, plaintiff had still not satisfied the academic performance standards that SUNY required of all medical students before promoting them on to the second year. It was in this context that SUNY was entitled to review plaintiffs alternative proposals for readmission, and it is in this context that the court must consider the reasonableness of its response.
Garcia points to Dr. Weiner's reference in his August 11, 1995 letter to plaintiffs "probable" disability, and to his discussion of future accommodations "if the psychiatrist determines that you do have [ADD]," as evidence that defendant did not believe him to be disabled. This conclusion is belied by the undisputed fact that Dr. Weiner readmitted plaintiff to the medical school. The conditional language was plainly a reference to defendant's flexible approach to future accommodations depending on more detailed assessments from treating psychiatrists.
For example, to the extent Garcia initially pressed Dr. Weiner simply to award him the extra .6 point necessary to pass the neuroscience exam, plaintiff was in fact seeking preferential treatment that would have required SUNY to promote him based on a lower standard of performance than it demanded of other students taking neuroscience. This is not a "reasonable" accommodation under federal law. See Fink v. New York City Dep't of Personnel, 53 F.3d at 567 (rejecting any requirement that standards be lowered); see also 28 C.F.R. Pt. 35, App. A at 484 (1999) (school must furnish disabled individual with "an equal opportunity to demonstrate his or her knowledge or ability"). Similarly, Garcia's proposal that he proceed immediately to the second-year curriculum and retake the neuroscience exam the following summer would have required modification of two significant SUNY rules, one against allowing students to proceed to the following year's curriculum without first demonstrating mastery of the previous year's courses, and the other against allowing students who twice failed a course from simply taking a make-up exam. Plaintiff has failed to adduce any evidence indicating that either rule is a substantial departure from accepted norms of medical training.
Instead, Garcia asserts that other SUNY students were regularly allowed to take make-up exams after twice failing a course. In fact, this claim is unsupported by the evidence. None of the students whom the Promotions Committee permitted to take make-up exams in 1994 and 1995 had twice failed the course in which a make-up was granted. As for the one student who was allowed to take a national licensing exam five times, the circumstances are plainly distinguishable and do not give rise to an inference of discrimination against the disabled.
SUNY policy generally provides for the dismissal of any student who could not pass the licensing exam after three attempts. In the case cited by plaintiff, a student who failed three times was subsequently diagnosed with ADD, i.e., the same disability claimed by Garcia. Defendant proposed to accommodate the student's disability by allowing the exam to be taken again. This was, however, the only accommodation possible in that case, since the licensing exam was not linked to a particular course or semester curriculum that could be repeated. When the student failed the licensing exam for a fourth time, (s)he presented medical evidence suggesting that (s)he had not yet adapted to the treatment prescribed for the disability. Accordingly, defendant allowed the student to sit for the exam a fifth time, but when (s)he failed yet again, the school ordered dismissal. Plainly, plaintiff cannot establish a claim of discrimination against the disabled by showing that in the case of two disabled students who encountered problems with different parts of the medical school program, SUNY fashioned different accommodations appropriate to their respective situations. See Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 385 (2d Cir. 1996) (what "constitutes a reasonable accommodation is necessarily fact specific[;] . . . determinations on this issue must be made on a case-by-case basis").
In sum, the undisputed record demonstrates that SUNY officials, specifically, Drs. Weiner and Terracina, were prepared to excuse Garcia's second failure of the first-year curriculum based on his recent diagnosis of ADD and to work with plaintiff and his doctors to develop accommodations to assist him with future studies. What they were not prepared to do was to view Garcia's "failure" as limited to a fractional grade point deficiency in neuroscience and to promote him into the second year. As Dr. Weiner explained in his April 11, 1995 letter, to do so would have been a radical departure from SUNY's policy of reviewing a student's overall academic performance. Plaintiffs second attempt at the first-year curriculum simply did not demonstrate the sort of solid grasp of core material required for promotion.
The court is satisfied that SUNY gave sufficient consideration to plaintiffs alternative proposals and reasonably concluded that they were too radical a departure from school standards to be feasible or effective. See Wong v. Regents of Univ. of California, 192 F.3d at 818. Defendant's proposal for readmission evidenced a reasonable accommodation of plaintiffs disability consistent with the school's academic standards. SUNY's motion for summary judgment on plaintiffs disability discrimination claims under the ADA and Rehabilitation Act is granted.
B. Section 1983 Claims Against the Individual Defendants
1. Violations of Due Process in Committee Meetings
The Fourteenth Amendment prohibits a state or a state agency from depriving "any person of life, liberty, or property, without due process of law . . ." U.S. Const. amend. XIV, § 1. In the second claim of his amended complaint, Garcia asserts that defendants Fox, Jakway, Terracina, and Miller, members of the Grades or Promotions Committees, and Dean Weiner, violated his right to due process when they failed to act in accordance with SUNY's published procedural rules for the dismissal of students. In fact, the evidence adduced will not support this claim.
New York does recognize an implied contract between a student and a state university or college. See Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991) (citing Olsson v. Board of Higher Education, 49 N.Y.2d 408, 414, 426 N.Y.S.2d 248, 251 (1980)). To that extent, Garcia did have a property interest in his continued enrollment that could not be deprived without due process. The essence of due process is, of course, "the opportunity to be heard at a meaningful time and in a meaningful manner."Mathews v. Eldridge, 424 U.S. 319, 333 (1976); accord Lowrance v. Achtyl, 20 F.3d 529, 536 (2d Cir. 1994).
Garcia complains that he was denied due process because (1) Roberts Rules of Order were not strictly followed during Grades and Promotions Committee Meetings, (2) Dr. Terracina advised him that he did not have to attend his appeal to the Promotions Committee, (3) Dr. Terracina did not inform the Promotions Committee of her advice to Garcia on attendance until after the Committee had voted to dismiss him, and (4) his neuroscience professor, a nonvoting member of the Promotions Committee, did not recuse himself from the committee's deliberations.
Assuming for purposes of this motion that these allegations are true, they nevertheless do not establish a denial of due process for the simple reason that they did not cause plaintiff any injury. Although the Promotions Committee voted to dismiss Garcia, this decision was rescinded by Dr. Weiner after he learned that a disability might have contributed to plaintiffs poor academic performance. Drs. Weiner and Terracina did place certain conditions on readmission that plaintiff was unwilling to accept. It is these conditions and not any irregularities in the Committee proceedings that are the cause of plaintiffs alleged injury.Cf. Zahrey v. Coffey, No. 99-119, 2000 U.S. App. Lexis 18020, at *19-24 (2d Cir. July 20, 2000) (discussing at length the issue of causation in § 1983 cases and holding that when single individual makes all decisions leading to plaintiffs denial of rights, immunized actions will not shield non-immunized actions).
Defendants' motion for summary judgment on the due process
claim of committee meeting irregularities is granted.
2. Due Process Failure to Reconvene the Promotions Committee
Garcia asserts that Dr. Weiner denied him due process when he failed to reconvene the Promotions Committee after plaintiff was diagnosed with a learning disability. The claim is based on the appeal policy outlined in Dr. Weiner's December 24, 1993 memorandum to all medical students, which permits students dismissed by the Promotions Committee to present new information to the Dean for his review. "Upon hearing the student's additional information, the Dean may accept the Academic Promotions Committee's decision or request the Academic Promotions Committee to undertake another review." Def. Exh. A. Garcia submits that because the dean's options are stated in the alternative, once Dr. Weiner decided not to accept the Promotions Committee's decision that plaintiff be dismissed (in light of Garcia's ADD diagnosis), he was obliged to remand plaintiffs case to the Committee for "another review."
Even assuming that plaintiff has accurately interpreted this single sentence, he cannot show that he was injured by the alleged omission for the simple reason that the policy statement ultimately places final and absolute decision-making authority in the dean: "After due consideration of the student's appeal, if any, and the Committee's recommendation, the Dean will make a final and binding determination." Id. Garcia has adduced no evidence indicating either (1) that the Promotions Committee would have reached a more favorable decision than Dr. Weiner if it had reviewed the evidence of his disability, or (2) that Dr. Weiner would have reached any different final decision if there had been further Promotions Committee review.
Under these circumstances, summary judgment is granted in favor
of Dr. Weiner on plaintiffs due process challenge to defendant's failure to reconvene the Promotions Committee.
3. Due Process Denial of Equal Treatment in Granting Additional Credit
Following SUNY policy, Garcia submitted written challenges to his failure to receive credit for four questions on the 1995 neuroscience test. The professor, defendant Dr. Fox, gave Garcia credit for one of the four challenged questions, but rejected his three other claims, thereby leaving him with what was still a failing grade. Garcia does not attack the merits of Dr. Fox's decision. Specifically, he does not claim that his answers to the three questions were correct. Instead, he submits that Dr. Fox treated him differently from a female student who also challenged certain questions. He asserts that Dr. Fox made "Herculean" efforts to give the female student additional credit, efforts that were not duplicated in plaintiffs case.
These claims, even when viewed in the light most favorable to plaintiff, do not establish any violation of a liberty or property interest. At best, they appear to allege a violation of equal protection. An equal protection claim, however, requires proof that the persons treated differently were similarly situated. See Latrieste Restaurant v. Village of Port Chester, 188 F.3d 65, 69 (2d Cir. 1999) ("Equal Protection Clause of the Fourteenth Amendment is `essentially a direction that all persons similarly situated be treated alike'" (quotingCity of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985)). SUNY submits the uncontroverted affidavit of Dr. Fox indicating that plaintiff and the female student challenged different questions on the neuroscience exam and that where each had meritorious challenges, credit was given. Under such diverse circumstances, Garcia cannot sustain an equal protection claim. Summary judgment is granted in favor of Dr. Fox.
4. Due Process Failure to Test Garcia Earlier for Disabilities
At oral argument, counsel for Garcia suggested that certain unspecified SUNY administrators violated his right to due process by failing to have him tested earlier for a possible learning disability. This claim is not pleaded in the amended complaint and amendment would serve no purpose since the record will not support the claim. See Koehler v. Bank of Bermuda (New York) Ltd., 209 F.3d at 138.
A right to due process arises only when a plaintiff can show that his life, liberty, or property is implicated. Thus, for Garcia to have a due process right to disability testing, he must point to some law, regulation, or rule that compels the state to provide this service. See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972);accord Clarry v. United States, 85 F.3d 1041, 1046 (2d Cir. 1996). This requires a showing of more than plaintiffs "abstract need or desire for" the service at issue. Id. Rather, he must have a "legitimate claim of entitlement" to it. Id. Moreover, if state officials are vested with discretion in providing the service, that "discretion precludes any legitimate claim of entitlement." Sanitation and Recycling Indus., Inc. v. City of New York, 107 F.3d 985, 995 (2d Cir. 1997); Gagliardi v. Village of Pawling, 18 F.3d 188, 193 (2d Cir. 1994) ("if state law makes the pertinent official action discretionary, one's interest in a favorable decision does not rise to the level of a property right entitled to procedural due process protection" (citation omitted)). Nothing in the record supports Garcia's claim of entitlement to disability testing.
Garcia submits that he first put SUNY officials on notice of a possible learning disability in the first semester of his first year when he sought help from the Office of Academic Development. Gerlinde Luster, who is not named as a defendant, referred him to a tutoring program, but did not recommend disability testing. The SUNY Student Handbook explains that the Office of Academic Development provides seminars, workshops, and tutoring programs to help students adapt to the challenges of the medical school program, see Def.
Garcia could not add Ms. Luster as a defendant now, because his 1993 meeting with her is outside the statute of limitations, and it appears he can make no claim that his failure to name her in either his complaint or amended complaint was due to any mistake. See Fed.R.Civ.P. 15(c); Soto v. Brooklyn Correctional Facility, 80 F.3d 34, 35-36 (2d Cir. 1996). Exh. S, but nothing in that handbook or anything else cited by plaintiff indicates that a student seeking help from the Office is entitled to disability testing.
Garcia also asserts that during his first semester, he discussed his academic problems with Dr. Terracina, who is named as a defendant, and Dr. Kaufman, who is not. Both offered encouragement, but neither referred him for disability testing. Garcia, however, points to no law, regulation, or rule that would have required them to do so.
When Garcia ultimately failed the first-year curriculum, his academic record was reviewed by the Promotions Committee. The SUNY Student Bulletin does provide that:
As the Evaluation and Promotions Committee reviews each student's academic progress, students who are experiencing difficulties will be referred to a member of the Dean's staff who will assist the student and make necessary referrals to evaluate and/or address whatever specific issues may be interfering with a student's academic performance.
The Dean or the Evaluation Committee may request a written report and recommendation of any person to whom the student is referred. The Dean or the Evaluation and Promotions Committee may recommend a specific program of remediation.
Def. Exh. R, p. 34, ¶ 8. To the extent Garcia relies on this language to support
his claim of entitlement to disability testing, he is wrong as a matter of law. Assuming that the bulletin provides students with any entitlements warranting due process protection, these are necessarily limited by the language cited. Specifically, a student in academic difficulty "will be referred to a member of the Dean's staff." It appears that Garcia was referred to Dr. Terracina. That individual "will assist the student" with whatever difficulties he or she may be encountering, but the discretion to decide what assistance is needed, including what referrals may be appropriate, is virtually unlimited. Where administrators enjoy such broad discretion, Garcia cannot establish a specific entitlement to disability testing.
Indeed, Garcia's own actions at the conclusion of the 1993-94 term plainly demonstrate that defendants were not willfully ignoring any need for testing when they required him to repeat the first-year curriculum. In challenging this decision, Garcia said nothing that suggested he might have a disability. To the contrary, he assured the Promotions Committee that he did "not have difficulty understanding concepts, solving problems or learning material." He explained that his academic failure was solely the product of extensive personal commitments, which he was prepared to abandon, and a failed personal relationship, which he had now put behind him. While plaintiff may not have appreciated that he was operating under a learning disability, nothing in these facts suggests that any of the individual defendants, particularly Dr. Terracina, were willfully closing their eyes to an issue that might "be interfering with a student's academic performance."
The court will not permit the complaint to be amended to add a due process challenge based on belated disability testing.
5. Free Speech
Garcia sues Professor Jacqueline Jakway and other unnamed school officials for violating his First Amendment right to free speech. Specifically, he complains that Professor Jakway and other school officials voted to dismiss him from the medical school in retaliation for his challenge to SUNY's policy regarding make-up exams for the gross anatomy course. As further evidence of Professor's Jakway retaliatory purpose, plaintiff points to her efforts to have him fired from an on-campus job.
To establish his First Amendment claim, Garcia must show that his speech on SUNY's policy for repeating failed courses was a matter of public concern and not a subject personal to the speaker. See Connick v. Myers, 461 U.S. 138, 146 (1983); accord Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999). This is because the government when acting as educator and employer may have broader powers affecting speech than it does when acting as sovereign. See Waters v. Churchill, 511 U.S. 661, 672 (1994) (O'Connor, J., plurality). Furthermore, any question as to "the protected status of speech" in a particular context is "one of law, not fact." Connick v. Myers, 461 U.S. at 148 n. 7; accord Morris v. Lindau, 196 F.3d at 110. In this case, the court finds as a matter of law that Garcia's speech was personal and did not address any matter of political, social, or other significance to the community. See Connick v. Myers, 461 U.S. at 146.
Garcia's speech consisted of a letter/petition that he signed together with six other medical students. Each petitioning student had failed gross anatomy and was required to repeat the course. Because the material covered in the course had been the subject of two discrete tests and because each student had passed one test and failed the other, they argued that they should only be required to repeat the part of the course covered in the particular test they had failed. This was plainly a matter of personal interest to the students involved and not a question of concern to the Brooklyn community. In Ezekwo v. New York City Health Hosp. Corp., 940 F.2d 775, 781 (2d Cir. 1991), the Second Circuit rejected a First Amendment retaliation claim by a plaintiff physician whose complaints about a hospital training program "were personal in nature and generally related to her own situation within the . . ., residency program." In so holding, the court relied on Connick v. Myers, 461 U.S. at 149, in which the Supreme Court ruled that Assistant District Attorneys could not bring a First Amendment retaliation claim based on their circulation of a questionnaire about office grievances and morale because the action reflected a private dispute over their own employment situation.
So in this case, the fact that Garcia and a handful of other students petitioned not to repeat the entire gross anatomy course "cannot be fairly characterized as constituting speech on a matter of public concern." Id. Summary judgment is granted in favor of defendants on Garcia's First Amendment retaliation claim.
Conclusion
For the reasons stated in this memorandum, summary judgment is granted in favor of defendants on all claims brought by plaintiff Garcia:
(1) Sovereign immunity shields SUNY and all defendants sued in their official capacity from those constitutional claims that plaintiff Garcia files pursuant to 42 U.S.C. § 1983. Sovereign immunity shields SUNY from all pendent state law claims.
(2) Plaintiff has failed to adduce evidence sufficient to support a claim of disability discrimination against SUNY under either the ADA or the Rehabilitation Act.
(3) Plaintiff has failed to adduce sufficient evidence to support his § 1983 claims against individual defendants for violations of the constitutional rights of free speech, due process, and equal protection. Plaintiffs proposal at oral argument that he amend the pleadings to add yet another due process claim is unsupported by the evidence.
The Clerk of the Court is to enter summary judgment in favor of
all defendants and to mark this case closed.
SO ORDERED .