Murphy v . Franklin Pierce CV-93-65-B 11/17/94 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Nancy D. Murphy

v. Civil N o . C-93-65-B Franklin Pierce Law Center

MEMORANDUM AND ORDER

Nancy Murphy suffers from a chronic vision impairment known

as diplopia.1 After being dismissed as a Franklin Pierce Law

School student, she sued the Law Center alleging that she was the

victim of unlawful discrimination on the basis of her disability

and sex in violation of § 504 of the Rehabilitation Act of 1973,

(West Supp. 1994), Title IX of the Education Amendments of 1972, 20 U.S.C.A. § § 1681 and 1682 (West 1990),

and the Fourteenth Amendment's Equal Protection Clause. She also

alleged that the Law Center's discharge procedures violated her

rights under the Fourteenth Amendment's Due Process Clause and

state contract law. The matter is before me on the parties'

cross-motions for summary judgment.

1 Diplopia is caused by congenital weakness of the muscles controlling convergent focus of the eyes. According to the plaintiff, this condition severely hinders her ability to focus on printed material. I. FACTS

A. Franklin Pierce Law Center

Franklin Pierce Law Center is a private, nonprofit

corporation that receives some federal financial assistance. The

Law Center does not offer a part-time program and, with limited

exceptions, it requires students to complete their degree

requirements within three years.

Franklin Pierce publishes rules that limn its academic

requirements and procedures for disciplinary action. The rules

require that students must maintain a grade point average ("GPA")

of 2.00 or higher, earn at least eighty-four credits, with no

more than nine of those credits falling below a grade of C-, and

satisfy any terms of academic probation. If a student fails to

meet these minimum standards, he or she is subject to the oversight of the school's Academic Standards Committee. Students

within the Committee's jurisdiction may be placed on probation,

suspended, or dismissed. Probationary students must submit a

plan to the Committee explaining their poor performance and

offering recommendations for corrective action. The Committee

may accept, modify or reject a student's plan when setting

probation terms. It may also subject probationary students to

revised eligibility requirements.

2 B. Murphy's First Year: Fall 1987 - Spring 1988

Murphy disclosed her visual impairment in her admission

application. She described her condition as double vision that

first manifested itself when she was a teenager. She claimed

that the condition worsened significantly after she was involved

in an automobile accident during her second year of college.

After undergoing two surgical procedures and "ocular motility

therapy," however, she claimed that she no longer needed

eyeglasses and concluded that "I continue today to read well

without impairment." Murphy thus presented her condition as a

hurdle that she had overcome rather than an impairment that would

require accommodation upon admission.

Franklin Pierce admitted Murphy for the Fall 1987 term. She

took the same fifteen-credit course load as the other first year students, but was placed on probation after her second semester

because her cumulative GPA was below 2.00. In accordance with

the Law Center's rules, Murphy submitted a corrective action plan

to the Academic Standards Committee. She did not allege that her

low GPA had been caused by her visual impairment. Instead, she

attributed her performance to poor test taking skills, panic when

taking exams, "culture shock," and a thyroid condition.

3 The Committee responded by accepting Murphy's proposed class

schedule for the fall term. In light of her self-described

"panic," however, the Committee required her to take practice

exams throughout the semester. It also informed her that she

must earn no grade less than C-, achieve at least a 2.00 GPA for

the fall semester, and raise her cumulative GPA to 2.00 by the

end of her second year. Finally, in commenting upon her thyroid

condition, the Committee informed her that "[f]or our part, while

sympathetic to the health problems you have, and willing to

consider accommodations before health problems impact on

performance, we do not see them as a basis for lessening of

standards and will not be able to waive these terms of probation

should you come to us after the fact with the explanation that

you could have done better except for ill health."

C. Murphy's Second Year: Fall 1988 - Spring 1989 Murphy successfully completed her probationary requirements

for the Fall 1988 semester, receiving a GPA of 2.08. However,

the Academic Standards Committee required her to submit another

corrective action plan at the end of her second year because she

received a D in Evidence and thereby violated the Law Center's

rule prohibiting students from having more than nine credits

below C-.

4 Murphy alleged for the first time in her second corrective

action plan that her academic difficulties were due in part to

her visual impairment. She also described her condition in

detail and delineated her method of managing the condition

through muscle therapy, diet, rest, reading time management, and

the occasional use of prism lenses. She further stated that her

doctor recommended "being awake for three hours in the morning

before reading, and sleeping when I have difficulty converging or

when I experience muscle strain."2 Because Murphy claimed that

her impairment caused her to experience pain and headaches, she

requested three-day rest periods between exams to allow her time

to rest and manage her reading schedule without strain. She also

stated "[a]lthough I have not previously brought this to the

attention of the Academic Standards Committee, I did write

briefly about the condition in my personal statement. I also spoke about it with Professor Arpiar Saunders during my admission

interview."

2 In an August 1 1 , 1989 letter, Murphy's doctor informed her: "I would suggest that you avoid situations that are particularly stressful to your eyes, such as taking several examinations in rapid succession. As a matter of fact, it would be advisable that you break up your study and reading into well defined segments of time such as two hours at a time, or three hours at the most, and I hope that you will be able to avoid the development of headaches and assorted problems."

5 The Committee accepted Murphy's explanation for her poor

performance and allowed her to return for a fifth semester.

However, it again placed her on probation. This time, the

Committee required her to achieve a GPA of 2.30 or higher for

each semester of her third year, receive no D's or F's, and no

more than one C- in either semester, and submit a proposed course

schedule for the Committee's approval. The Committee also

informed her that "if these conditions are not met, we will not

entertain any new plans for rehabilitation, i.e., you will be

dismissed if these terms are not met."

Murphy chose not to appeal the Committee's decision and

instead began negotiations with the Committee concerning her fall

courses. The Committee rejected her request to participate in a

five credit clinical program with the public defender's office

and informed her that she would need to achieve a 2.67 GPA if she elected to participate in the Law Center's Civil Practice Clinic.

After being informed that the Dean had agreed to allow her to

take a reduced course load, the Committee accepted her proposal

to take courses in Criminal Law, Commercial Paper, Real Estate

Transactions, and Estate Planning. The Commercial Paper course

was a "mini course" with the final exam scheduled several weeks

prior to the regular final exam period. She was to be graded on

6 a single exam in only one of the other three courses. In the

other two courses, class participation or papers were to be a

significant part of her final grade.

D. Murphy's Fall 1989 Semester

Murphy earned a 1.89 GPA for the fall term. She received

failing grades in both Commercial Paper and Real Estate

Transactions, a C in Criminal Law, and an A- in Estate Planning.

She was granted extra time to complete her Criminal Law and Real

Estate Transactions exams. Although she did not receive extra

time for her Commercial Paper exam, she was allowed to retake the

exam with extra time. On her second try, she received a D.

Murphy was dismissed as a student on February 8 , 1990,

because the Law Center claimed that she had failed to meet the

terms of her probation and otherwise failed to successfully

complete the requirements for the degree program. Murphy timely appealed her dismissal and, for the first time, asked that the

Law Center accommodate her disability by allowing her to take

oral exams. E. Murphy's Appeal to the Faculty Board and her Department of Education Complaint

In denying Murphy's appeal, the Faculty Board concluded that

7 Murphy had been dismissed because she lacked the analytical

skills to succeed rather than because she was disabled. In this regard, the Faculty Board noted:

There is a clear pattern in M s . Murphy's transcript as a whole. The only two courses in which she got A- are taught and evaluated in a special way. In one, the examination is open book and take-home. In the other there are class presentations of projects. In both, the work is done in teams, the benefits of mutual instruction and learned cooperation being considered (in those courses) sufficient to outweigh the conceded risk of high grades for one or more team members who assent to the answers without understanding or is coached through a presentation. Further, evaluation is based on what might be called the mastery method which anticipates most students will ultimately be correct on nearly every point and therefore nearly every conscientious group earns an A of some sort.

The only B's in the transcript are in practicum-type courses largely if not solely evaluated on the basis of a series of exercises or clinical work.

Every D, F, or C- on the transcript is in a traditional, conceptual subject with a final exam. M s . Murphy's higher grades in the basics are straight C's in Torts, Constitutional Law, Business Associations, Criminal Procedure and Criminal Law. Two D's and two C-'s were earned in basic courses in the first year -- before M s . Murphy says her vision became a problem.

The Faculty Board also analyzed Murphy's exam answers and

concluded that the kinds of errors she repeatedly made in her

exams were "not errors of reading, nor the kind that more time on

an exam would cure." Accordingly, the Faculty Board determined

8 that Murphy's failure to succeed was unrelated to her disability. Murphy filed a complaint with the United States Department

of Education, Office of Civil Rights ("OCR") on August 7 , 1990.

In response, OCR determined that Franklin Pierce had not violated § 504 of the Rehabilitation Act or its accompanying regulations,

(1992).

I I . DISCUSSION

A. The Summary Judgment Standard

It is axiomatic that a court does not find facts in ruling

on a motion for summary judgment. Instead, the court construes

the evidence in the light most favorable to the non-movant and

determines whether the moving party is entitled to judgment as a

matter of law. Olivier v . Digital Equip. Corp.,

(1st Cir. 1988). Less well understood is the effect that

burdens of proof frequently have on the resolution of summary

judgment motions.

If the party moving for summary judgment has the burden of

proof at trial, the court will grant the motion only i f : (1) the

moving party initially produces enough supportive evidence to

entitle the movant to judgment as a matter of law (i.e., no

9 reasonable jury could find otherwise even when construing the

evidence in the light most favorable to the non-movant), and (2)

the non-movant fails to produce sufficient responsive evidence to

raise a genuine dispute as to any material fact. Fitzpatrick v .

Atlanta,

, 1115-17 (11th Cir. 1993). In contrast, if

the non-movant bears the burden of proof, the court will grant

the motion i f : (1) the movant alleges that the non-movant lacks

sufficient proof to support one or more elements of her case, and

(2) the non-movant is unable to produce sufficient responsive

evidence to withstand a motion for judgment as a matter of law.

Id.; see also, Mesnick v . General Elec. Co.,

(1st Cir. 1991), cert. denied, 112 S . C t . 2965 (1992). Thus, the

amount and quality of the responsive evidence that the non-movant

must produce to successfully resist a motion for summary judgment

will depend upon whether the non-movant bears the burden of proof at trial. Fitzpatrick, 2 F.3d at 1115-17.

With these standards in mind, I turn to the merits of the

cross motions for summary judgment.

10 B. The Rehabilitation Act Claim

A § 504 claimant must allege that she is (1) an "individual

with a disability,"3 (2) who is "otherwise qualified," and (3)

who was denied participation in a program or activity receiving

federal funds, (4) "solely because of her disability." Cook v .

Rhode Island Dept. of Mental Health, Retardation & Hosp.,

7 , 22 (1st Cir. 1993). In this circuit, the plaintiff bears the

burden of proving all four elements of her § 504 claim. Id. But

see Taub v . Frank,

, 10 (1st Cir. 1992) (noting that

"the plaintiff bears the initial burden of establishing that he

is entitled to protection under the A c t " ) . Compare Teahan v .

Metro-North Commuter R.R.,

1 1 , 514 (2d Cir. 1991)

(burden of proof remains with plaintiff but burden of production

shifts to defendant once plaintiff establishes prima facie case), cert. denied, 113 S . C t . 54 (1992), with Wood v . Omaha Sch.

Dist.,

3 7 , 438 (8th Cir. 1993) (burden of proof shifts

3 The Act was amended in 1992 to substitute "disability" for "handicap." Pub. L . 102-569, § 102(p)(32). The Act's definition of "individual with a disability" includes "any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such impairment, or (iii) is regarded as having such an impairment."

(8) (West Supp. 1994). The parties do not dispute that Murphy is disabled within the meaning of the statute.

11 to defendant once plaintiff establishes prima facie case) and

Fitzpatrick, 2 F.3d at 1127 n.17 (same) and Smith v . Barton,

(9th Cir. 1990) (same), cert. denied,

(1991), and Arneson v . Heckler,

(8th Cir.

1989) (same on remand,

(E.D.

M o . 1990), modified and rev'd on other grounds sub nom., Arneson

v . Sullivan,

(8th Cir. 1991)) and Treadwell v .

Alexander,

(11th Cir. 1983) (same) and Pushkin

v . Regents of Univ. of Colo.,

, 1387 (10th Cir.

1981) (same).

Franklin Pierce argues that it is entitled to summary

judgment because Murphy cannot prove either that she was

dismissed solely because of her disability or that she was

otherwise qualified to complete her Law Center studies. I

address each argument in turn. 1. Solely by reason of disability

Section 504 protects only those persons who are subjected to

discrimination under federally funded programs solely because of

their disabilities.

(a). Thus, if a disabled

person is denied participation in a program because she is unable

to meet a facially neutral program requirement, she will not be

entitled to relief under § 504 unless she can establish either

12 that the requirement was merely a pretext for unlawful

discrimination, Heilweil v . Mount Siani Hosp.,

1 8 , 722

(2d Cir. 1994), or that she was unable to meet the requirement

because of her disability, Teahan,

.

Murphy concedes that Franklin Pierce dismissed her because

she failed to meet both the Law Center's minimum grade

requirements and the terms of her probation. Moreover, she does

not contend that the Law Center established either its minimum

requirements or her probation terms as a pretext for unlawful

discrimination. Instead, she argues that she has a § 504 claim

because her disability prevented her from meeting the

requirements and probation terms. Ordinarily, a claim such as

this raises a question of fact that cannot be resolved by a

motion for summary judgment. Id. at 517. But see McGregor v .

L.A. Univ.,

5 0 , 860 (5th Cir. 1993) (court affirmed grant of defendant's motion for summary judgment), cert. denied, 114 S .

C t . 1103 (1994). A plaintiff, however, cannot survive a motion

for summary judgment challenging the sufficiency of a claim on

which she bears the burden of proof at trial without offering any

supporting evidence. Wynne v . Tufts Univ. Sch. of Medicine,

9 1 , 796 (1st Cir. 1992) (plaintiff may not rest upon

13 conclusory allegations when pretext is at issue), cert. denied,

113 S . C t . 1845 (1993); see also, Fitzpatrick, 2 F.3d at 1115-17.

Here, Murphy has not produced any evidence to counter the Law

Center's substantial evidence suggesting that her failure to

succeed was caused by her deficient analytical skills rather than

her disability. Since Murphy must prove at trial that she was

dismissed solely because of her disability, her failure to

produce any responsive evidence on the issue dooms her § 504

claim.

2. Otherwise qualified

Murphy's § 504 claim also fails because she has not produced

sufficient evidence in response to the Law Center's motion to

convince a reasonable jury that she is otherwise qualified. In

making this determination, the court may not focus solely on

whether the plaintiff can meet the program's minimum requirements in spite of her disability. Alexander v . Choate,

8 7 ,

301 (1985). Instead, it must determine whether the plaintiff's

disability can be reasonably accommodated through changes in the

program's requirements that do not alter its essential nature or

unduly burden the program's sponsor. School Bd. v . Arline,

, 287 n.17 (1986). I f , however, the plaintiff cannot

14 succeed in spite of her disability, even with all reasonable

accommodations, she is not entitled to relief under § 504. See

id.

Murphy claims that she is otherwise qualified because she

could meet the Law Center's minimum requirements if the school

allowed her to take oral exams. She has offered no evidence,

however, to support this contention. First, the undisputed

evidence establishes that she failed to achieve passing grades

even after she received all of the accommodations suggested by

her physician. See McGregor,

(plaintiff who

received similar accommodations and still failed was not

otherwise qualified). Second, the only evidence in the record

suggesting that she has the analytical skills to be a successful

law student is the Law Center's decision to admit her in spite of

her disability. However, not every student admitted to Law Center is qualified to receive a degree. See id. at 854-55.

Thus, this evidence, standing alone, is not sufficient to

convince a reasonable jury that Murphy could succeed if she were

allowed to take oral exams. Since Murphy has produced no other

evidence to support her claim, I also grant Franklin Pierce's

motion for summary judgment on this basis.

15 C . Education Amendments Claim

Murphy contends that Franklin Pierce violated Title IX 4 ,

because the Law Center denied her an accommodation for her

disability that it had approved for an unidentified male student

with a similar disability. Franklin Pierce challenges this claim

by arguing that Murphy lacks any supporting evidence.

As with other statutes prohibiting discrimination on the

basis of sex, the plaintiff bears the burden of proving her Title

IX claims. Lipsett v . University of P.R.,

8 1 , 896-97

(1st Cir. 1988) (applying disparate treatment standards under

Title VII to Title IX claims). Here, Murphy has offered no

evidence to support her claims that the unnamed male student

received preferential treatment. Nor does she offer any evidence

suggesting that the male student's disability was enough like hers to entitle her to a similar accommodation. Since Murphy has

not requested additional time to respond to the Law Center's

motion pursuant to Fed. R. Civ. P. 56(f), she cannot avoid

4 Title IX states in pertinent part: "No person in the United States shall, on the basis of sex, be excluded from participation i n , or be denied the benefits o f , or be subjected to discrimination under any education program or activity receiving Federal financial assistance...." The parties do not dispute that Franklin Pierce qualifies as an institution which receives federal financial assistance.

(West 1990).

16 summary judgment on this grossly inadequate claim simply by

asking for an opportunity to prove the claim at trial. Garside

v . Osco Drug, Inc.,

1 , 49 (1st Cir. 1990); see also,

Patterson-Leitch C o . v . Mass. Mun. Wholesale Elec. Co.,

(1st Cir. 1988).

D. Fourteenth Amendment Claims

Murphy claims that the Law Center violated her Fourteenth

Amendment rights to equal protection and due process. Although

Franklin Pierce has moved for summary judgment on these claims,

Murphy's objection and supporting memorandum make no mention of

her constitutional claims. By failing to address the Law

Center's challenges to those claims in her responsive memorandum,

Murphy has waived her right to object to the claims' dismissal.

Reed Paper C o . v . Proctor & Gamble Distributing Co.,

(D. M e . 1992); see also, Collins v . Marina-Martinez,

7 4 , 481 n.9 (1st Cir. 1990).

E. State Law Claims

Having dismissed Murphy's federal claims, I decline to

exercise my discretion to retain jurisdiction over state law

claims. See

(c)(3) (West 1993). Accordingly,

I dismiss these claims without prejudice.

17 CONCLUSION

Franklin Pierce's motion for summary judgment (document n o .

10) is granted with respect to counts I , I I , and III of

plaintiff's complaint, and plaintiff's cross-motion for summary

judgment (document n o . 13) is denied. Plaintiff's state law

claims are dismissed without prejudice.

SO ORDERED.

Paul Barbadoro United States District Judge

November 1 7 , 1994

cc: Russell F. Hilliard, Esq. Dennis Murakami, Esq. Gary B . Richardson, Esq.

18