Gill v. Franklin Pierce Law Ctr CV-93-241-SD 05/17/95 P UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Robert D. Gill

v. Civil No. 93-241-SD

Franklin Pierce Law Center; Robert M. Viles, in his capacity as President and Dean of Franklin Pierce Law Center

O R D E R

In this civil action, plaintiff Robert D. Gill asserts that

Franklin Pierce Law Center (FPLC)1 violated his rights under

section 504 of the Rehabilitation Act of 1973,

,

by dismissing him as a student and then by denying his

application for readmission. Gill also asserts state-law claims

for breach of contract and defamation.

Presently before the court is defendants' motion for summary

judgment, which was filed on February 22, 1995. Plaintiff's

response to said motion was due on March 14, 1995. However, as

of the date of this order, no such response has been filed.

1In his complaint, plaintiff names as defendants both FPLC and Robert M. Viles in his capacity as President and Dean of FPLC. For the purposes of this order, the court refers to both defendants collectively as "FPLC". Background

Plaintiff Gill applied for admission to FPLC in April of

1987. His application included a written personal statement in

which he alleges that he stated "he suffered from Post Traumatic

Stress Syndrome common to children growing up in an Alcoholic

home." Amended Complaint 5 6.

Gill was admitted to FPLC in the fall of 1987 and completed

his first two and one-half years of FP L C 's Juris Doctor program

in good academic standing. However, on February 10, 1990, during

his sixth semester at FPLC, plaintiff was notified by the

Academic Standing Committee (ASC) that he was ineligible to

continue his studies because he was in violation of Part VI, Rule

1 ( a ) (3) of FPLC's Academic Rules and Regulations.

Rule 1 (a)(3) of Part VI provides,

1. ACADEMIC ELIGIBILITY TO CONTINUE AS A DEGREE CANDIDATE (a) A student who at the end of any semester:

(3) Has earned nine (9) credits below C-, . . . is not eligible to continue as a candidate for the Juris Doctor degree, except under such terms as may be established by the Committee on Academic Standing. Failure to meet the terms established by the Committee shall make a student ineligible for the Juris Doctor degree.

FPLC Academic and Rules and Regulations (the Rules) , Compiled as

of July 1988 (attached to Affidavit of Linda Hupp as Exhibit D ) .

2 The notice plaintiff received on February 10 also advised

him to submit a plan to the ASC in accordance with Part VI, Rule

6, which provides, in relevant part, "The student must present a

plan for overcoming deficiencies to the Committee before the

deadline set by the Committee. The student may, at the time

designated, reguest a hearing before the Committee."

Plaintiff met with the ASC and submitted his plan to

overcome academic deficiencies on February 28, 1990. Pursuant to

Part VI, Rule 7, the ASC was thereafter reguired to review Gill's

case "to determine the probability of rehabilitation." Rule 7

further provides that this

determination shall rest on two basis [sic]: an assessment of the student's abilities and an assessment of the feasibility of the student's plan. The assessment of the student's abilities will take into account such factors as the Committee on Academic Standing finds relevant including the student's undergraduate and graduate school grades, law school grades, LSAT score, law school faculty reports of course or other academic performance, and internship supervisor's evaluations. The assessment of plan feasibility will take into account the extent to which the plan addresses the causes of the deficiency, the demands imposed by the plan in comparison with the student's past performance and abilities, and the student's demonstration of attitude, effectiveness, self-reliance, and motivation.

As a result of the February 28 meeting with Gill, ASC member

Professor Friedman wrote to Gill on March 7 and asked him to

3 answer three questions regarding actions he had taken or had

failed to take relative to his course of study at FPLC. Friedman

requested a response from Gill by March 13, 1990.

On March 21, 1990, theASC stated in a letter to Gill,

"Since we did not hear from you by the return day [of March 13,

1990], we decided to wait afew more days. As of today, we have

given you an extension of eight (8) days and haveheard nothing."

Letter from the ASC to Gill dated Mar. 21, 1990, at 1 (Attachment

A to Plaintiff's Amended Complaint). The ASC letter goes on to

state.

Actions may not speak louder than words, but actions are all we have. Your actions of this semester and last tell us that you are not choosing to take the steps necessary to reestablish your eligibility to continue. Last semester you ignored some of the most basic academic rules such as the drop/add date rule, having enough credits to graduate, taking classes you signed up for, etc. Then you generally refused to avail yourself of any of the processes that were offered to you through Registrar Wheeler, to set your academic record in order. This semester did not turn a new leaf, but continued the pattern of last semester. We can only conclude that you are content with the situation as it is, or that, in any event, you choose not to take the necessary steps to alter it. We hereby dismiss you under Rule V I . 8 ( c ) (1) and (4) on the grounds: 1. Your plan of February 27 does not adequately address the cause of the deficiency, and 2. You lack the abilities to complete the degree program.

4

Said letter further informed plaintiff of his right to seek

review of the A S C 's decision through an appeal to the faculty

under Part XII of the Rules. I d . at 2.

Plaintiff appealed the A S C 's decision to the faculty, which

held a hearing on the matter on May 1, 1990. The faculty

subseguently issued an opinion affirming the A S C 's decision to

dismiss Gill and denying his appeal. Appeal of Robert D. Gill,

Opinion of the Faculty, dated May 7, 1990 (attached to Hupp

Affidavit as Exhibit B ) .

On December 16, 1992, Gill applied for readmission to FPLC.

His application was denied by the ASC on March 8, 1993, and that

denial was upheld by the Appeals Panel for the ASC on July 20,

1993.

Plaintiff initiated the instant action on May 3, 1993.

Discussion

1. Summary Judgment Standard

Under Rule 56(c), Fed. R. Civ. P., summary judgment is

appropriate if the evidence before the court shows "that there is

no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law."

The summary judgment process

involves shifting burdens between the moving and the nonmoving parties. Initially, the

5 onus falls upon the moving party to aver "'an absence of evidence to support the nonmoving party's case.'" Garside v. Osco Drug, Inc.,

(1st Cir. 1990) (guoting Celotex Corp. v. Catrett,

(1986)). Once the moving party satisfies this reguirement, the pendulum swings back to the nonmoving party, who must oppose the motion by presenting facts that show that there is a "genuine issue for trial." Anderson v. Liberty Lobby, Inc.,

(1986) (citing Fed. R. Civ. P. 56(e)). . . .

LeBlanc v. Great American Ins. Co.,

(1st Cir.

1993), cert, denied. ___ U.S. , 114 S. C t . 1398 (1994).

"Essentially, Rule 56(c) mandates the entry of summary

judgment 'against a party who fails to make a showing sufficient

to establish the existence of an element essential to that

party's case, and on which that party will bear the burden of

proof at trial.'" Mottolo v. Fireman's Fund Ins. Co.,

(1st Cir. 1995) (guoting Celotex Co r p ., supra, 477 U.S.

at 322) . When the nonmoving party bears the burden of proof at

trial and fails to make such a showing, "there can no longer be a

genuine issue as to any material fact: the failure of proof as to

an essential element necessarily renders all other facts

immaterial, and the moving party is entitled to judgment as a

matter of law." Smith v. Stratus Computer, Inc.,

(1st Cir. 1994) (citing Celotex Co r p ., supra, 477 U.S. at 322-

23), petition for cert, filed,

(U.S. Feb. 21,

6 1995) (No. 94-1416) .

In determining whether summary judgment is appropriate, the

court construes the evidence and draws all justifiable inferences

in the nonmoving party's favor.

55; Data Gen. Corp. v. Grumman Sv s . Support Corp.,

(1st Cir. 1994)

2. Section 504 Claim

In Count I of his complaint, plaintiff alleges that FPLC

discriminated against him on the basis of a handicapping

condition in violation of section 504 of the Rehabilitation Act

of 1973 when it dismissed him as a student and when it

subseguently refused to readmit him.

Section 504 states, in relevant part.

No otherwise gualified individual with a disability in the United States, as defined in [

(8)], shall, solely by reason of 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 assistance2 . . .

(a) (Supp. 1994).

The term "individual with a disability" is defined by the

2FPLC does not dispute that it receives federal financial assistance and is thereby subject to section 504.

7 Act to mean "any person who (i) has a physical or mental

impairment which substantially limits one or more of such

person's major life activities, (11) has a record of such

impairment, or (ill) is regarded as having such an impairment."

(8) (B) .

In order to maintain a claim under section 504 of the

Rehabilitation Act, plaintiff must show that (1) he was

"disabled" within the meaning of the Act, (2) he was "otherwise

gualified" to participate in the Juris Doctor program at FPLC,

(3) he was excluded from that program, (4) the exclusion was due

solely to his disability. See, e.g.. Cook v. Rhode Island P e p 't

of Mental Health, Retardation, and Hosps.,

(1st

Cir. 1993). Plaintiff bears the burden of proving each element

of his claim.

Defendant admits that plaintiff was dismissed from its Juris

Doctor program, and further admits, for the purposes of its

summary judgment motion only, that plaintiff is an individual

with a disability.3 However, defendant contends that summary

judgment is appropriate because plaintiff was not "otherwise

gualified" for FPLC's program and was not denied participation in

3Plaintiff alleges that he suffers from Post Traumatic Stress Syndrome as a result of growing up with alcoholic parents. Amended Complaint 5 6, and stress-induced poor handwriting, i d . 5 23. said program solely because of his disability.

a. Otherwise Qualified

"'An otherwise qualified person is one who is able to meet

all of a program's requirements in spite of his handicap.'"

School Bd. of Nassau County v. Arline,

, 287 n.17

(1987) (quoting Southeastern Community College v. Davis,

(1979) ) .

The determination of whether an individual is "otherwise

qualified" involves two steps. First, as the Supreme Court's

language in Southeastern Community College suggests, the court

must consider whether an individual can meet a program's

requirements in spite of his or her handicap or disability. If

the individual is unable to do so, the court must further

consider whether any "reasonable accommodation" by the program

would enable the individual to meet the program's requirements.

If an individual can meet the program's requirements with

reasonable accommodations, then the individual is "otherwise

qualified" to participate in the program.

n.17; Wynne v. Tufts Univ. Sch. of Medicine [Wynne

X ] ,

(1st Cir. 1991), cert, denied, ___ U.S.

,

(1993).

This "otherwise qualified-reasonable accommodation" analysis

9 is intended to strike "a balance between the statutory rights of

the handicapped to be integrated into society and the legitimate

interests of federal grantees in preserving the integrity of

their programs . . . Alexander v. Choate,

(1985). In the education context, the First Circuit strikes this

balance as follows:

in determining whether an aspiring . . . student meets section 5 0 4 's "otherwise gualified" prong, it is necessary to take into account the extent to which reasonable accommodations that will satisfy the legitimate interests of both the school and the student are (or are not) available and, if such accommodations exist, the extent to which the institution explored those alternatives.

Wynne v. Tufts Univ. School of Medicine [Wynne III,

(1st Cir. 1992), cert, denied, ___ U.S. ___ , 113 S. C t . 1845

(1993) .

Here, there is no dispute that plaintiff was dismissed from

FPLC on March 31, 1990, because the ASC found his February 27

plan to overcome academic deficiencies to be inadeguate and found

that he lacked the abilities to complete the degree program.

Further, in support of its contention that plaintiff is not

otherwise gualified for FP L C 's academic program, defendant

submits the Opinion of the Faculty in plaintiff's appeal of his

dismissal, which details the events leading to that dismissal.

10 The Opinion of the Faculty begins as follows:

Appellant ROBERT D. GILL (appellant) completed his fifth (5th) semester as a Juris Doctor (JD) degree student in December 1989, having earned in that semester three (3) credits of D in Remedies and two (2) credits of F in In-House Lawyering. His overall GPA was 2.22, and he had earned sixty-nine (69) credits toward the eighty-four (84) reguired for the JD degree. However, including his fifth (5th) semester, appellant had accumulated twelve (12) credits of grades below C minus. By operation of Part VI Rule 1( a ) (3) of the Law Center's Academic Rules (Rules), any student who has earned more than nine (9) credits of grades below C minus is "not eligible to continue as a candidate for the Juris Doctor degree, except under such terms as may be established by the Committee on Academic Standing."

Opinion of the Faculty at 1.

Plaintiff was subseguently notified of his ineligibility to

continue his studies and was advised "to submit by February 16,

1990, a plan for overcoming his academic deficiencies as reguired

by Rule VI 6 and 7 in order to pursue reinstatement as a degree

candidate through the Academic Standing Committee (ASC) process."

Plaintiff was also invited to meet with Academic Dean Linda

Hupp "for assistance in understanding and successfully meeting

the reguirements of the academic review process."

On February 28, plaintiff met with two members of the ASC

and submitted to them his plan to overcome academic deficiencies.

I d . at 1-2. Plaintiff's plan stated, under the heading

11 "Overcoming Deficiencies",

"I propose [crossed out and replaced with a hand-written "have"] to quit my part time job of sixteen hours a week. I propose to switch to a high carbohydrate low fat diet. I propose to limit my intake of red meat, sugar, and caffeine. I propose to eat more complex carbohydrates and fish. I propose to meditate more to overcome my anger at whatever institutional deficiencies I see at Franklin Pierce Law Center. I propose the following study schedule in order to utilize my time more effectively."

I d . at 1-2 (quoting Plaintiff's Student Plan to Overcome Academic

Deficiencies) (brackets in original).

As a result of the February 28 meeting, by letter dated

March 7, 1990, ASC member Professor Friedman posed three

questions to plaintiff regarding various actions he had taken

relative to his course of study. Friedman requested a response

from Gill to said questions by March 13, 1990. I d . at 2.

On March 21, 1990, after receiving no response from Gill,

the ASC issued its decision dismissing plaintiff under Part VI,

Rules 8(c) (1) and (4).4 Plaintiff's subsequent appeal of his

4Rule 8 (c) provides,

A decision to dismiss a student shall be based on finding the student: (1) Lacks the abilities to complete the degree program; (2) Is unlikely to satisfy terms of probation; (3) Has failed to satisfy terms of

12 dismissal to the FPLC faculty was unsuccessful.

On December 16 , 1992 , plaintiff applied for readmission to

FPLC. His application was denied by the ASC on March 8, 1993,

and that denial was upheld by the Appeals Council on July 20,

1993. The decision of the Appeals Council (attached to Hupp

Affidavit as Exhibit C) indicates, inter alia, that plaintiff's

application for readmission was properly rejected because

plaintiff failed to meet his burden of submitting a petition and

a written plan which conforms to the requirements of the Rules.

On the basis of the evidence before it, the court finds that

defendant has met its burden of establishing that plaintiff was

not qualified to continue his studies at FPLC and was not

qualified for readmission to FPLC. The court further finds that

plaintiff, in failing to respond to defendant's motion, has not

met his burden of creating a genuine issue for trial as to

whether he was qualified to continue his studies at FPLC.

b. Reasonable Accommodations

The court turns next to the question of whether any

reasonable accommodations by FPLC would have enabled plaintiff to

probation; or (4) Has failed to present a plan to the Committee.

13 meet the school's requirements.

Under the Rehabilitation Act, "there is a real obligation on

the academic institution to seek suitable means of reasonably

accommodating a handicapped person . . . ." Wynne I, supra,

. However, in determining whether this obligation has

been met, the First Circuit has held that "an academic

institution can be expected to respond only to what it knows (or

is chargeable with knowing)." Wynne II, supra,

.

This means that in order for a school "'to be liable under the

Rehabilitation Act, [it] must know or be reasonably expected to

know of [a student's] handicap.' Nathanson v. Medical College of

P a .,

(3d Cir. 1991). A relevant aspect of

this inquiry is whether the student ever put the . . . school on

notice of his handicap by making 'a sufficiently direct and

specific request for special accommodations.' I d . at 1386."

Plaintiff alleges that he disclosed his post-traumatic shock

syndrome disability in the personal statement portion of his

application to FPLC. Amended Complaint 5 6. In response

thereto, FPLC Associate Dean Linda Hupp submits a copy of Gill's

personal statement and asserts in her affidavit that plaintiff

"did not disclose any disability, including post-traumatic shock

syndrome" in said statement." Hupp Affidavit 5 3. Hupp further

14 states, "[a]t no time prior to his dismissal did Gill assert any

disability or need for accommodations in connection with his law

studies." I d . 5 6.

The court's review of the copy of plaintiff's personal

statement attached to H u p p 's affidavit reveals that, although

plaintiff did identify himself as the "Adult Child of an

Alcoholic", he did not state that he suffered from post-traumatic

stress syndrome, nor did he otherwise indicate that he required

certain reasonable accommodations.

The court finds that the evidence submitted by defendant

establishes that FPLC did not know, and had no reason to know,

that plaintiff had a disability for which he required reasonable

accommodations. Further, in response to defendant's properly

supported motion, plaintiff has failed to submit any evidence to

create a genuine issue as to whether FPLC knew or had reason to

know of his disability and of his corresponding need for

reasonable accommodations.

Under these circumstances, the court finds that FPLC cannot

be held liable under section 504. Defendant's motion for summary

judgment is accordingly granted as to Count I.5

5Because plaintiff has failed to establish that a genuine issue exists as to whether he was "otherwise qualified" to continue his studies at FPLC, it is unnecessary to consider whether plaintiff's dismissal was due solely to his disability.

15 2. Breach of Contract

In Count III of his complaint, plaintiff alleges that FP L C 's

published Academic Rules and Regulations "constitute an express

and implied contract" with him, which FPLC breached when it

dismissed him and then declined his application for readmission.

Amended Complaint 55 37-41.

Assuming arguendo that the Academic Rules and Regulations

constitute a contract, FPLC contends that no violation of that

contract occurred. In support thereof, defendant submits the

affidavit of Associate Dean Linda Hupp, in which she states that

"FPLC adhered to its academic rules in all of its actions

respecting Gill's dismissal and application for readmission

. . . ." Hupp Affidavit 5 9.

In addition to the rather conclusory statement of Dean Hupp,

defendant submits (1) copies of the relevant FPLC Academic Rules

and Regulations and (2) the decisions from plaintiff's appeal of

his dismissal and his appeal of FP L C 's denial of his application

for readmission.

The court finds that these documents establish that FPLC

followed the process set forth in the relevant Academic Rules and

However, the court notes that the evidence before it establishes that plaintiff was dismissed because of his academic deficiencies and not because of any disability.

16 Regulations when it dismissed plaintiff and when it denied him

readmittance. The court further finds that plaintiff, having

failed to come forward with any evidence to show that there was a

breach of his purported contract with FPLC, has not met his

burden of creating a genuine issue for trial on his breach of

contract claim. Defendant's Motion for summary judgment is

therefore granted as to Count III.

3. Defamation

In Count IV of his complaint, plaintiff alleges that the

A S C 's letter of March 21, 1990, which dismisses him from FPLC,

"is defamatory and has created a stigma to Plaintiff's

reputation." Amended Complaint 5 43. He further alleges that

the letter "has and will interfere with plaintiff['s ] seeking

admission to another law school."

To establish defamation under New Hampshire law, "there must

be evidence that a defendant failed to exercise reasonable care

in publishing, without a valid privilege, a false and defamatory

statement of fact about the plaintiff to a third party."

Independent Mechanical Contractors v. Gordon T. Burke & Sons,

,

(1993) (citing R e s t a t e m e n t (Se c o n d )

of Torts § 558 (1977); 8 R i c h a r d B. M c N a m a r a , N e w H a m p s h i r e P r a c t i c e ,

Personal In j u r y , T o r t a n d In s u r a n c e P r a c t i c e § 2 (1988)) . See also

17 Duchesnave v. Munro Enters., Inc.,

,

(1984) ("Liability in defamation actions has

traditionally rested upon the defendant's intention to

communicate the defamatory statement to someone other than the

plaintiff, or at least upon negligent responsibility for such

communication.").

Dean Hupp states in her affidavit that "[t]he letter of

dismissal dated March 21, 1990 was not published to anyone other

than Gill." Hupp Affidavit 5 10. Plaintiff has failed to come

forward with evidence to create a genuine issue as to whether the

letter was published to a third party. The court therefore finds

that Gill's defamation claim fails as a matter of law.

Defendant's motion for summary judgment is accordingly granted as

to Count IV.

Conclusion

For the reasons set forth herein, the unopposed motion for

summary judgment filed by defendants FPLC and Robert M. Viles

18 (document 15) is granted. The clerk's office shall enter

judgment accordingly.

SO ORDERED.

Shane Devine, Senior Judge United States District Court May 17, 1995

cc: Robert D. Gill, pro se Russell F. Hilliard, Esg.

19