USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 1 of 40

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-2153

OLIVIA NEAL,

Plaintiff – Appellant,

v.

EAST CAROLINA UNIVERSITY,

Defendant – Appellee,

and

UNIVERSITY OF NORTH CAROLINA,

Defendant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (5:17-cv-00186-BR)

Argued: September 14, 2022 Decided: November 4, 2022

Before KING, AGEE, and THACKER, Circuit Judges.

Affirmed by published opinion. Judge Agee wrote the opinion in which Judge King and Judge Thacker joined. USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 2 of 40

ARGUED: Glenn A. Barfield, HAITHCOCK, BARFIELD, HULSE & KINSEY, PLLC, Goldsboro, North Carolina, for Appellant. Vanessa N. Totten, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. ON BRIEF: Joshua H. Stein, Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.

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AGEE, Circuit Judge:

After East Carolina University (“ECU”) dismissed Olivia Neal from its School of

Social Work’s Master’s Degree program, Neal sued the university alleging that its decision

discriminated against her in violation of the Americans with Disabilities Act (“ADA”). See

; see also ADA Amendments Act of 2008,

Stat. 3553. The district court disagreed and granted summary judgment to ECU based on

its conclusion that Neal failed to come forward with evidence creating a genuine issue of

material fact to support two elements of a prima facie case of discrimination. It determined

that the record did not show that (1) she was “otherwise qualified to participate in ECU’s”

program or (2) ECU dismissed her “on the basis of” her disability. Neal v. Univ. of N.C.,

No. 5:17-CV-186-BR,

, at *6–7 (E.D.N.C. Sept. 28, 2020). Neal

challenges both grounds on appeal. For the reasons set forth below, we affirm the district

court’s judgment in favor of ECU.

I.

To begin we provide a brief overview of the law governing ADA discrimination

claims in the context of collegiate studies. Title II of the ADA prohibits public universities

such as ECU from excluding individuals from their programs “by reason of” their physical

or mental disabilities.

. Plaintiffs can prove their claim by pointing to

direct evidence of discrimination or, more commonly, by using the three-step analysis

established in McDonnell Douglas Corp. v. Green,

(1973). This burden-

shifting analysis requires a plaintiff first to establish, by a preponderance of the evidence,

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a prima facie case of discrimination. Tex. Dep’t of Cmty. Affs. v. Burdine,

,

252–53 (1981). Once a plaintiff meets that initial burden, the burden shifts to the defendant

to show that its decision was made “for a legitimate, nondiscriminatory reason,” and if that

hurdle is crossed, then the presumption of discrimination is rebutted and the burden returns

to the plaintiff to prove that the university’s proffered reason was pretext for

discrimination.

.

To state a prima facie case of ADA discrimination in the context of a university’s

academic programs, a “plaintiff must establish that (1) [s]he has a disability, (2) [s]he is

otherwise qualified to participate in the defendant’s program, and (3) [s]he was excluded

from the program on the basis of h[er] disability.” Halpern v. Wake Forest Univ. Health

Scis.,

(4th Cir. 2012) (footnote omitted).

As for the first element, a plaintiff has three paths of proving she has a disability.

(1). First, she can prove that she has “a physical and mental impairment that

substantially limits one or more major life activities” as those terms are further defined in

statutes and regulations.

Second, she can prove that she has “a record of such an

impairment.”

Or, third, she can prove that the defendant “regarded [her] as having such

an impairment.”

The second element of the prima facie case—proving that the plaintiff is “otherwise

qualified” to participate in the program—requires her to show that she is someone “who,

with or without reasonable modifications to rules, policies, or practices, . . . meets the

essential eligibility requirements for participation in a program or activity.” Halpern,

(alteration in original) (citation omitted). Because courts are “particularly ill-

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equipped to evaluate academic performance,” they generally afford “some level of

deference to schools’ professional judgments regarding students’ qualifications” for

participating in their academic programs.

(cleaned up).

The third element of the prima facie case is causation, and in the ADA context, the

Court has held that proving discrimination “on the basis of” disability “requires only that

the disability was ‘a motivating cause’ of the” university’s decision.

(emphasis

added).

II.

With this baseline for understanding Neal’s claim, we turn to the record, reciting the

underlying facts under the same principles that constrained the district court when

assessing whether to award summary judgment. In short, for purposes of appeal, we

examine the facts in the best light for Neal, “believ[ing]” her evidence and drawing “all

justifiable inferences” in her favor. Haulbrook v. Michelin N. Am.,

(4th

Cir. 2001); see Fed. R. Civ. P. 56(a).

A. ECU’s Master’s of Social Work Program

ECU’s School of Social Work offers a Master’s of Social Work Degree Program

(the “MSW Program”), which consists of both traditional classroom courses and an

internship (referred to as “field instruction”). For the latter component, the MSW Program

places students with an outside agency or organization and provides multiple levels of

coursework and oversight for which students receive one course grade. Field instruction

consumes a significant portion of MSW Program students’ time, as they are generally

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expected to work three days a week for 8 hours a day (24 hours per week) while completing

other program requirements the rest of the week. An MSW Program faculty member serves

as the liaison with the agency or organization and also oversees a weekly seminar course

students must attend. A “field instructor” serves as an overarching supervisor for the

student’s field work. The MSW Program typically recruits licensed clinical social workers

in the community to serve in this role. Field instructors typically meet weekly with their

students to provide regular individualized guidance. Lastly, an employee at the agency or

organization serves as a student’s “task supervisor” and oversees the student’s day-to-day

work. Students who graduate from the MSW Program may then complete a state’s

licensure process for social workers. J.A. 877; see also N.C. Gen. Stat. § 90B-7 (2012)

(describing the qualifications for “Certified Master Social Worker” and “Licensed Clinical

Social Worker,” both of which include having at least a master’s degree from a college or

university with an accredited social work program).

Because the MSW Program is a professional degree, it serves a “gate-keeping

function” to “graduate[] only persons who will make competent practitioners.” J.A. 878–

79. In furtherance of this function, ECU will “not graduate a person who ha[s] exhibited

behavior that could pose a danger to the well-being of vulnerable social work clients.” J.A.

878–79. Relatedly, “a student’s academic performance is not judged solely on grades.

Academic performance includes a student’s behaviors, including whether they are being

disruptive, unprofessional, or failing to attend classes.” J.A. 881. Consistent with these

requirements, the MSW Program holds its students not just to ECU’s code of conduct, but

also to the standards set out in the National Association of Social Workers’ (NASW) Code

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of Ethics and the Council on Social Work’s core competencies for social workers. J.A.

881–82. The MSW Program’s Field Manual provided that “[u]nprofessional conduct or a

breach of the NASW Code of Ethics may be deemed to be serious enough to terminate

field work and the social work program.” J.A. 881. The MSW Program reserved the

right to remove a student from a field placement and/or the program if, in the opinion of the faculty, the student lacks the maturity, judgment, or professionalism to function in the field of social work. If it is recommended that a student withdraw from field [instruction], s/he cannot be readmitted during that semester. The student must repeat the full semester, including a field experience, in order to graduate.

J.A. 389.

When concerns about a student’s performance in the MSW Program rise beyond

those capable of being adequately addressed between an individual faculty member and

the student, ECU authorizes the convening of an Admissions & Retention Committee

(“A&R Committee”). J.A. 883. The A&R Committee’s goal is to “help[] a student

determine a remedial course of action to ensure successful completion of the program,”

including “suggestions for improved performance,” clarifying both academic and

“nonacademic competencies expected of students,” and developing a strategy for

“thoughtful and professional” interactions with “instructors, classmates, colleagues, clients

and supervisors.” J.A. 883. An A&R Committee is also charged with recommending “a

specific course of action” for students to follow and “has the authority to determine if those

[expectations] were met, and may terminate a student from the program if they were not.”

J.A. 883–84; 821 (2012–2013 Graduate Catalog: “[G]raduate advisory committees may

render judgments as to whether satisfactory progress is made toward the degree, taking into

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account all aspects of academic performance and promise, not necessarily course work

alone. . . . Failure to meet programmatic/departmental standards may result in program

termination.”). As Professor Nancy Pierson, who was the Director of Field Education for

the MSW Program during the relevant time, put it,

when a student was having some difficulties or there were some issues or problems that were affecting their success . . . in the program or the course and internships in any way, we could have an [A&R Committee] meeting to try to identify what was happening, what those difficulties might be and to try to figure out a way to help that student take some remedial actions, some change, some additional support and training so that they could be retained if at all possible and complete their program.

J.A. 884.

B. Neal’s First Two Years in the MSW Program

Neal began her studies in the MSW Program in the Fall 2012 semester. 1 Her first

two semesters, she maintained a 3.8 and 4.0 GPA, respectively.

In her third semester (Fall 2013), Neal voluntarily withdrew from the MSW

Program. During her field instruction at a hospital that semester, a client attempted suicide

in Neal’s presence, which caused her intense trauma that, in hindsight, she states she did

not know how to process or discuss with others. Neal later explained that this incident,

combined with an abusive living situation at the time, led her to miss a significant amount

In her application’s personal statement, Neal disclosed that she’d been diagnosed 1

with ADHD. At no time did she request an accommodation based on that diagnosis and her ADA claim does not allege discrimination on account of that condition. 8 USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 9 of 40

of coursework. It also led to her eventual hospitalization for about two weeks during which

time she missed additional coursework. 2 Consequently, she voluntarily withdrew.

After Neal and her parents met with faculty members, Neal was permitted to re-

enroll in the MSW Program for the next semester (Spring 2014) despite the program’s

usual policy of requiring students who had withdrawn and wanted to return to do so at the

same time the following academic year to maintain continuity of training. At Neal’s

request, she was assigned to a different organization for field instruction, the House of

Fordham, which provides services to individuals needing assistance with food, housing,

and motherhood. For the Spring 2014 semester, Neal maintained a 4.0 GPA.

C. Neal’s Fall 2014 Semester

Several incidents in the Fall 2014 semester led the MSW Program to convene an

A&R Committee to meet with Neal about her behavior, performance, and continued

enrollment. 3 The problems the Committee identified varied, but included Neal often using

her phone during class for non-class purposes, being habitually tardy and leaving for

extended periods during class, turning in assignments late or not at all, and ignoring faculty

communications requesting responses. In addition, peers complained to faculty about

2 There’s no indication in the record that ECU was apprised of the full circumstances surrounding Neal’s missed coursework or eventual hospitalization before her decision to withdraw. 3 Neal’s Fall 2014 A&R Committee included its chairwoman Dr. Kerry Littlewood (Assistant Director of ECU’s School of Social Work and Coordinator for the MSW Program), Dr. Lena Carawan (an MSW Program professor), and Professor Nancy Pierson (Director of Field Education for the MSW Program). Here and throughout this opinion, individuals who were or are affiliated with ECU are identified by their titles at the time of the described events. 9 USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 10 of 40

Neal’s disruptive behavior and uncivil comments, as well as her method of participating in

team assignments (including taking a “my way or not at all” approach to group assignments

and failing to complete individual tasks assigned to her). During the field instruction

seminar, students expressed concern about sharing sensitive client information in front of

Neal, fearing that she would misuse it. In addition to individual professors addressing

concerns with Neal (to no effect), Dr. Carawan elected to split her seminar into two groups

so that those “most bothered” by Neal were separated from her. J.A. 782.

In addition, Neal’s field instructor—a social worker in the community, Michael

Herring—resigned from that role, leaving her without a necessary supervisor in that

component of her required coursework. 4

During a mandatory A&R Committee meeting, faculty reiterated to Neal that she

needed to improve her attendance, participation, and coursework because her “negative

behavior was having [a negative effect] on [her] ability to successfully complete the

curriculum.” J.A. 889. After Neal complained of various personal problems during the

meeting, Dr. Littlewood also recommended that she see ECU’s counseling services

program. Neal understood that one purpose of the meeting was to assess whether she would

be permitted to remain in the MSW Program and that her “failure to improve could result

4 The record does not contain any statement directly from Herring explaining why he withdrew as Neal’s supervisor. And while statements appear from other MSW Program faculty regarding their understanding about why he withdrew, Neal challenges those statements as inadmissible hearsay and something about which a genuine issue of fact exists. Because Herring’s reasons for withdrawing are not material to the district court’s decision or our review, we need not rely on or recount that challenged material. It’s undisputed that Herring withdrew from this role, an act that compromised Neal’s ability to complete necessary components of her field instruction. 10 USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 11 of 40

in [her] termination from the” program. J.A. 889. She also expressed her agreement “to

make changes” going forward. J.A. 889. As part of their conversation about Neal’s future

in the program, Professor Pierson agreed to serve as Neal’s field instructor for the rest of

the semester so that she could continue with her fieldwork at House of Fordham. And

throughout the rest of the semester, Professor Pierson and Dr. Carawan worked with Neal

to complete all overdue and remaining coursework.

Separate from the A&R Committee proceedings, Neal was also brought before

ECU’s Office of Student Rights and Responsibilities (OSRR). In October 2014, Neal was

arrested and charged with the state criminal offense of simple assault following a physical

altercation with her sister. The charge was later dismissed. When the OSRR learned of the

charge, it treated the incident as a violation of ECU’s student code of conduct. As a

sanction, it required Neal to undergo counseling and to verify having done so by February

6, 2015.

Based on her progress and performance in the second part of the semester, Neal

received As in all her classes.

D. Neal’s Spring 2015 Semester

A few weeks into the Spring 2015 semester, Neal engaged in several specific

incidents that alarmed MSW Program faculty. On February 10, Neal met with one of her

instructors, Dr. Intae Yoon in his office ostensibly to discuss her topic for a semester

project, the prospectus for which was past due. The meeting lasted about two hours, during

which Neal “switched from one topic of conversation to another about personal matters

unrelated to the MSW program such as her boyfriend, financial difficulties, a bad

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relationship with her parents, and her plan to attend law school in California.” J.A. 633. At

times, she raised her voice. When Dr. Yoon asked her to leave, she refused, “continu[ing]

to talk about incoherent topics. Sometimes she would cry and then smile.” J.A. 633. She

told Dr. Yoon she would stand behind his vehicle so that he could not leave campus. In his

declaration, Dr. Yoon characterized Neal as engaging in an “extreme level of disruptive

and inappropriate behavior” that was “so incoherent, we were not . . . communicating at

all” that day. J.A. 633. Other MSW Program faculty overheard the outburst, interceded,

and managed to calm Neal. When questioned about the incident during her deposition, Neal

conceded that she “essentially didn’t let [Dr. Yoon] leave” his office. J.A. 2340. And she

characterized her words and conduct toward him that day as “disrespectful,” J.A. 2341, and

“not acceptable,” J.A. 2344.

On February 20, after OSRR emailed Neal a reminder that she was “over due [sic]

on [her] Counseling verification” from its fall sanction, Neal called that office and left a

rambling and incoherent voicemail message that ran over five minutes long. In her

deposition, Neal agreed that doing so had not been an exercise of her “best judgment,” and

was “inappropriate” and “unprofessional.” J.A. 892, 2519.

Just after midnight on February 21, Neal replied to the OSRR email and copied ECU

staff and MSW Program faculty on her response. It too can be characterized as rambling

and incoherent, as exemplified by the following excerpt: “I am really tired, and sick and

tired, and actually exhausted, with getting emails of this nature. Could one of you, or ANY

of you, try to explain this to me? . . . I would *really prefer,* that we handle this in a quick

and easy manner. I would also *also realllllly prefer,* to not get any kind of legal, drama

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(in any sense of the word).” J.A. 457–58. In her deposition, Neal again agreed that the

email “doesn’t make any sense” and that sending it had been “unprofessional” and

“inappropriate.” J.A. 892, 2523.

Three separate and significant interactions occurred on February 25. At 3:20 a.m.,

Neal sent Dr. Carawan and Professor Pierson an email labeled “URGENT: Field Visit” in

which she apologized for her untimely response, explaining, “it has been an EXTREMELY

enduring day,” and she’d “really like to have the field visit occur tomorrow, however, I

have some (unfortunately, safety-related) concerns I need to speak with you about prior.”

J.A. 460. She closed the email, “Thanks for all you do, Love, Olivia L. Neal MSW3 ;).”

J.A. 460. Later in the day, Neal and Professor Pierson spoke on the telephone. During the

call, Neal exhibited “rapid and pressured” speech and disorganized thinking that “jump[ed]

from topic to topic,” making it difficult for Professor Pierson to communicate with her.

J.A. 729. At one point, she told Professor Pierson “to shut up and listen to her.” J.A. 729.

That evening, Neal emailed around thirty people, including individuals affiliated with ECU

and the MSW Program. Attached to the email was a video Neal recorded from that evening

in which she was yelling at her parents. Neal subsequently characterized herself as being

“‘very upset,’ in an ‘emotionally heightened state,’ ‘erratic,’ and ‘screaming non-sense’”

in the video. J.A. 893. Yet again, she acknowledged that the video was “unprofessional”

and “inappropriate,” and that sending it to ECU faculty and staff had not been wise. J.A.

893, 2527.

Neal’s conduct between February 10 and 25 led to numerous emails between MSW

Program faculty discussing Neal’s interactions with them and covering such matters as

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concern for her well-being, whether and how they could encourage Neal to seek help based

on their respective relationships with her, the MSW Program’s “gate-keeping function,”

and Neal’s academic performance thus far in the semester and how to help her going

forward. In describing Neal’s February 10 interaction with Dr. Yoon, Neal’s faculty

advisor stated, “it was obvious that [she] was quite manic,” J.A. 1130, while Dr. Littlewood

referred to it as Neal “having an episode,” J.A. 1123.

When Dr. Littlewood asked the faculty with whom Neal had course- and field- work

that semester about her academic performance, the professors were equivocal. Dr. Yoon,

for example, had just received an assignment from Neal that was “almost 3 weeks over due

[sic].” J.A. 1133. He indicated that “it is too early to tell whether she will fail my course or

not,” but that they all knew Neal “is smart enough and highly likely to pass [the] course.”

J.A. 1136. Similarly, Dr. Carawan responded that Neal’s House of Fordham “task

supervisor has been very positive in her support,” and “[s]o far, I have all of her

assignments which is much different from fall semester.” J.A. 1127.

Before chronicling the events that occurred after Neal’s emails and phone call on

February 25 through the MSW Program’s decision to dismiss Neal on March 16, it’s

appropriate to note that other information came to light later, but which was not known by

the MSW Program at the time it made its decision. Importantly, Neal’s claim alleges

discriminatory conduct permeating ECU’s entire decisionmaking process—from the MSW

Program’s decision on March 16 through the internal appeals process upholding that

decision. Moreover, Neal relies on a later-developed record to support her argument that

her dismissal was motivated by unlawful discrimination. Consequently, in describing the

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factual record, we point out not just the events of the evening of February 25 through March

16, but also what later became known about them and how they factored into ECU’s total

decisionmaking process.

To briefly forecast that recitation, the record evidence shows what MSW Program

faculty observed during that time frame, what spurred Dr. Littlewood to convene an A&R

Committee meeting where MSW Program faculty decided to dismiss Neal, and what the

Committee cited as the specific grounds supporting that decision. In addition, the later-

developed record partially explains Neal’s actions during those three weeks. And that

explanation led the Graduate Review Panel considering Neal’s internal appeal of her

dismissal to expressly not rely on anything that occurred during this timeframe as part of

its recommendation to uphold her dismissal.

From the time Neal sent her email with the attached video recording on the evening

of February 25 to March 5, no one at ECU, the MSW Program, or House of Fordham heard

from Neal or anyone else on her behalf. She did not appear for scheduled field instruction

at House of Fordham, she did not show up for two classes that met on March 3, she did not

attend weekly supervisory meetings with Professor Pierson or initiate scheduling makeup

sessions for a meeting cancelled due to inclement weather on February 25, she did not

submit any assignments due during that period, and she did not respond to emails and

phone calls from MSW Program faculty requesting that she do so.

On March 5, Neal’s father contacted two individuals at ECU, the Associate Dean of

Students and Professor Pierson. During the calls, Neal’s father indicated only that she had

been “hospitalized after having an automobile accident” on February 25. J.A. 894. While

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he assured them Neal did not have any serious physical injury, he did not disclose the basis

for her hospitalization; that she was at a mental health facility; that she did not have

telephone, email, or Internet access; or that she’d been diagnosed with Bipolar Disorder.

That evening, the Associate Dean emailed several MSW Program faculty to inform them

of Neal’s hospitalization and that he’d expressed concern to Neal’s father about “the

concerns that have arisen regarding [Neal’s] well-being and her behavior, he was very short

and repeated several times ‘At this point, I think she is okay. She is seeking appropriate

care.’” J.A. 1156. The next afternoon, Professor Pierson responded to that email recounting

her own, similar, conversation with Neal’s father and expressing her confusion about why

Neal was being hospitalized for so long if she did not have any “broken bones or serious

physical injuries” from the accident. J.A. 1156. She indicated that Neal’s father had

referred broadly to Neal being “anxious” “from the accident” and that he’d “referred to her

behavior here at ECU” as “being ‘anxious’ and ‘stressed.’” J.A. 1156.

After the Associate Dean had notified her of Neal’s hospitalization, but a few hours

before Professor Pierson sent her response, Dr. Littlewood emailed MSW Program faculty

noting Neal’s lapses in academic performance that semester and specifying that if the

faculty supported her in doing so, she wanted to “pursue dismissal from our program based

on not meeting the guidelines detailed in our handbook . . . for professional and ethical

behavior and also being behind in field without communication by the student.” J.A. 1158–

60. Dr. Littlewood’s email cited six specific reasons for pursuing dismissal: Neal (1) hadn’t

had field work supervision meetings since February 10; (2) hadn’t been seen at House of

Fordham in three weeks; (3) hadn’t attended class “this week, nor notified instructors”; (4)

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sent a “disturbing email” on February 20 “to the student conduct office and cced everyone”;

(5) had “concerning” “confrontations with” Dr. Yoon and Professor Pierson; and (6) had

“already been in this same situation last semester and convened an A&R meeting.” J.A.

1158. A few days later, Dr. Littlewood announced an A&R Committee would convene to

discuss Neal’s dismissal.

The week of March 8 through 14 was ECU’s spring break. On Friday, March 13,

Dr. Littlewood emailed Neal stating that she was required to attend a Monday, March 16,

meeting of the A&R Committee to discuss her continued enrollment.

The morning of March 16, the A&R Committee convened without Neal attending. 5

It reviewed Neal’s entire academic record while enrolled, including her Fall 2013 voluntary

withdrawal, the problems addressed during the Fall 2014 A&R Committee meeting, Neal’s

behavior from February 10 to 25, and her February 25 to March 16 failure to communicate

through absences and missed work. The Committee considered whether to extend another

opportunity to Neal to continue in the program, but decided against it given the multiple

past efforts that had proven unsuccessful. Instead, it voted to dismiss Neal from the MSW

Program for failure to meet its academic and non-academic standards and competencies.

5 Once again, Dr. Littlewood chaired the meeting. It’s not clear who attended, but Professor Pierson was present and all of Neal’s faculty were invited to attend or submit information relevant to the Committee’s decisionmaking process. Neal was discharged from the hospital on Friday, March 13, and subsequently testified that she had limited telephone and no internet or email access while hospitalized. She further stated that she’d needed a new cell phone after her accident and that the Friday of her discharge was the last day of ECU’s spring break, so she did not learn about the mandatory A&R Committee meeting until after it had convened. 17 USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 18 of 40

On the evening of March 16, Neal emailed Dr. Littlewood, Professor Pierson, and

faculty members explaining that she’d been hospitalized since February 25th and seeking

to confirm class and supervisory meeting times and assignment deadlines. In response, Dr.

Littlewood and Professor Pierson instructed Neal that instead of returning to any

coursework, she should meet with them the following afternoon. Neal requested, and

received, permission for her parents to attend the meeting.

At the March 17 meeting, Neal learned that the A&R Committee had decided to

dismiss her from the MSW Program. She was given a letter formally dismissing her and

explaining the decision. The letter cites Neal’s failure to participate in several aspects of

her field instruction from February 10 to March 16, her impaired functioning that was at

odds with Section 4.05 of the NASW’s Code of Ethics, poor class attendance, and

habitually late assignments. It observed that Neal’s conduct in the Spring 2015 semester

was “all the more concerning” given her prior history in the MSW Program, pointing out

that despite attempts to support her, she’d withdrawn from the program in the Fall 2013

semester and had earlier A&R Committee proceedings in the Fall 2014 semester. Lastly,

the letter noted Neal’s “erratic and unprofessional behavior” in February 2015, including

the February 10 incident in Dr. Yoon’s office and her failure to respond to emails from

professors.

E. Neal’s Internal Appeal & Related Pre-Litigation Conduct

Neal appealed her dismissal through ECU’s internal appeals process, as set out in

the Graduate Handbook. A Graduate Review Panel consisting of two faculty members and

one graduate student from other departments met six times from April to June 2015 to

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interview Neal and MSW Program faculty; review Neal’s entire record while enrolled; and

review additional documentary evidence Neal submitted challenging her dismissal. Among

the information Neal submitted in her defense was documentation of her hospitalization

from February 26 to March 13 which—for the first time—disclosed to ECU that she had

been diagnosed with Bipolar Disorder. In addition, Neal submitted her private counselor’s

perspective that her symptoms were now being adequately managed by medication and

that she could resume normal school activities. 6

Neal also submitted documentation to the Graduate Review Panel about how she

continued her social work training in the final weeks of the Spring 2015 semester.

Specifically, despite Neal’s dismissal from the MSW Program, Dr. Yoon permitted her to

continue attending his class because it did not involve client work. She completed all

assignments. Although he could not submit a grade for her work because she was no longer

officially registered, Dr. Yoon informed Neal that she would have earned a “C” in the

course for the semester. Similarly, although the MSW Program had informed House of

Fordham that Neal’s field internship had been terminated and that any further work Neal

performed would be strictly on a voluntary basis, House of Fordham allowed Neal to

continue her volunteer work. Neal recruited individuals to act as the equivalent of a “field

6 The record contains additional information related to the car accident and hospitalization, most of which is irrelevant to our review. Briefly, she was in the car accident February 25, but left the scene with no major injuries. The police were later called to a gas station because its employees described a woman—later identified as Neal— engaging in bizarre behavior. She was taken to a local hospital and soon transferred to a mental health facility for involuntary commitment. While there, she was diagnosed for the first time with “Bi-polar, Type 1, with the most recent episode being mania.” J.A. 489; 893. 19 USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 20 of 40

instructor” and “task supervisor,” both of whom reported that Neal performed

exceptionally well at House of Fordham throughout the remainder of the spring of 2015.

The Graduate Review Panel recommended affirming the MSW Program’s decision

to dismiss Neal and found that her dismissal was based on appropriate criteria: her

academic performance and applicable professional standards. The Review Panel

specifically noted Neal’s “erratic and unprofessional behavior” on February 10, multiple

instances of tardiness to class, and inconsistent communication with supervisors and

faculty in the Spring 2015 semester. It further observed that this conduct was “a recurrence

of similar incidents” in the Fall 2014 semester. But the Review Panel also noted that it did

not base its recommendation on “any of the events that occurred from the date [Neal] was

in an automobile accident on February 25, 2015 through March 16, 2015 when [she]

indicated that cell phone and internet service was re-established for her,” nor did it consider

any of the evidence the parties submitted relating to Neal’s “health issues,” which it

deemed “beyond the scope of an academic review panel.” Lastly, the Graduate Review

Panel declined to consider the evidence Neal submitted related to events that occurred after

her dismissal, such as her continued volunteerism at House of Fordham.

In July 2015, ECU’s Dean of Graduate Studies adopted the Graduate Review

Panel’s recommendation and upheld the MSW Program’s decision to dismiss Neal.

Several months later, Neal filed a complaint with the U.S. Department of

Education’s Office of Civil Rights, which investigated her allegation of discrimination

against ECU. In August 2017, the Office closed its investigation after finding that ECU

had not discriminated against her.

20 USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 21 of 40

F. District Court Proceedings

In March 2017, Neal filed a complaint in North Carolina state court, which ECU

subsequently removed to the U.S. District Court for the Eastern District of North Carolina

based on federal question jurisdiction. The complaint originally named additional

defendants and claims, which have since been dismissed or otherwise finally resolved and

are not at issue in this appeal. The only claim relevant here is the complaint’s allegation

that ECU discriminated against Neal by dismissing her from the MSW Program, in

violation of the ADA.

Following discovery, ECU moved for summary judgment, which the district court

granted. It assumed, without deciding, that Neal could prove the first element of her claim:

that ECU had regarded her as having a mental impairment such that she met the statutory

definition of having a disability. However, the court concluded that Neal had not come

forward with evidence that would be sufficient to show—or that showed a genuine issue

of material fact with respect to—the second and third elements of her claim, that she was

“otherwise qualified” to remain enrolled in the MSW Program or that ECU dismissed her

from the MSW Program “on account of” her disability.

Neal noted a timely appeal from the district court’s judgment, and we have

jurisdiction under

.

III.

We review the district court’s grant of summary judgment de novo, using the same

standard as the district court: “a court should grant summary judgment only if, taking the

21 USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 22 of 40

facts in the best light for the nonmoving party, no material facts are disputed and the

moving party is entitled to judgment as a matter of law.” Goodman v. Diggs,

,

497–98 (4th Cir. 2021) (citation omitted); see Fed. R. Civ. P. 56(a). When there’s a “failure

of proof concerning an essential element of a plaintiff’s case,” summary judgment is

appropriate regardless of the evidence proving other elements of the claim. Haulbrook,

(cleaned up).

Neal contends that the district court misapplied the governing legal principles

related to summary judgment and ADA discrimination claims when it concluded that the

record would not support the second and third elements of her prima facie case. As set out

below, we disagree. 7

A. “Otherwise Qualified” Individual

Congress intended that the ADA “not compel educational institutions to disregard

[a student’s disability] or to make substantial modifications in their programs to allow

disabled persons to participate.” Se. Cmty. Coll. v. Davis,

(1979). Thus,

the second element of a prima facie case of disability discrimination under the ADA

required Neal to “present[] sufficient evidence to show . . . that [s]he could satisfy the

7 In their briefs to this Court, both parties address the first element of the discrimination claim. It’s not necessary to address that element to affirm, so we will follow the district court’s lead and assume, without deciding, that the record would be adequate to support a finding that ECU regarded Neal as disabled at the time of her discharge from the MSW Program. 22 USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 23 of 40

essential eligibility requirements of the [MSW] [P]rogram,” Halpern,

,

including both its academic and non-academic criteria, Davis,

. 8

1. Deference in Assessing “Professionalism” Requirements

Because courts are ill-suited to the task of determining the “essential eligibility

requirements” of an academic program, we traditionally afford “‘great’ deference to a

school’s determination of the qualifications” for its programs. Halpern,

.

This non-controversial proposition has been repeatedly acknowledged and applied by both

the Supreme Court and this Court. E.g., Regents of the Univ. of Mich. v. Ewing,

(1985) (“When judges are asked to review the substance of a genuinely academic

decision . . . they should show great respect for the faculty’s professional judgment.”); Bd.

of Curators of the Univ. of Mo. v. Horowitz,

(1978) (“[T]he determination

whether to dismiss a student for academic reasons requires an expert evaluation of

cumulative information and is not readily adapted to the procedural tools of judicial or

administrative decisionmaking.”); Class v. Towson Univ.,

(4th Cir.

2015) (“In determining whether an educational institution’s eligibility requirement is

8 Because this element focuses on the “essential eligibility requirements,” a plaintiff may be “otherwise qualified” and yet require “reasonable modifications to [a university’s] rules, policies, or practices.” Halpern,

. Neal represents she did not require any modifications to the MSW Program for her to be “otherwise qualified.” Consequently, this case does not present a claim that ECU failed to provide Neal with a reasonable accommodation. Neal has not and does not contend otherwise. ECU’s argument that Neal’s discrimination claim fails because she did not submit a timely request for an accommodation overlooks that a failure to accommodate is just one type of ADA discrimination claim. Cf.

. Consequently, that fact is not dispositive, as ECU could still be liable if Neal came forward with evidence sufficient to establish that ECU discharged her from the MSW Program on account of its perception that she had a mental impairment. 23 USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 24 of 40

essential and whether it has been met, we accord a measure of deference to the school’s

professional judgment.”); Halpern, 669 F.3d at 462–63 (“In the context of due-process

challenges, the Supreme Court has held that a court should defer to a school’s professional

judgment regarding a student’s academic or professional qualifications. Based on these

cases, our sister circuits have overwhelmingly extended some level of deference to schools’

professional judgments regarding students’ qualifications when addressing disability

discrimination claims.”); Davis v. Univ. of N.C.,

(4th Cir. 2001)

(recognizing the same). “[I]n according deference,” however, “we must take special care

to ensure that eligibility requirements do not disguise . . . discriminatory requirements.”

Class,

. That care entails “assiduously review[ing] the record to ensure that

the educational institution has conscientiously carried out its statutory obligation.”

Halpern,

(cleaned up).

As is true of many academic programs, and in particular post-graduate degree

programs, “professionalism [is] an essential requirement” of the MSW Program. Halpern,

. Neal stipulated to that fact. J.A. 877. What’s more, the policies governing

Neal’s enrollment in the MSW Program plainly and clearly cautioned that a lack of

professionalism could be a basis for dismissal from the program. J.A. 881 (“Unprofessional

conduct or a breach of the NASW Code of Ethics may be deemed to be serious enough to

terminate field work and the social work program.”); J.A. 883–84 (“If the [A&R]

[C]ommittee makes recommendations to the student for a specific course of action, the

committee has the authority to determine if those standards were met, and may terminate a

student from the program if they were not.”). Neal not only agreed to be governed by those

24 USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 25 of 40

policies when she enrolled, but also stipulated that MSW Program students’ “academic

performance is not judged solely on grades. Academic performance includes a student’s

behaviors, including whether they are being disruptive, unprofessional, or failing to attend

classes.” J.A. 881.

We are unpersuaded by Neal’s argument that she met this professionalism standard

because she maintained a high grade point average and had never been cited for

unprofessional conduct in her field work. This argument takes an incorrect and myopic

view of what conduct factors into a student’s “professionalism.” Without question, Neal

earned high marks in her academic classes. And, by all accounts, she excelled at her field

work with House of Fordham. But those are not the sole measures of “professionalism,”

which also appropriately consider matters such as conduct toward faculty and peers, timely

communications, class and meeting attendance, and the like. Universities—not courts—

are best equipped to determine what weight to give the many factors comprising the totality

of a student’s academic record and performance in an academic program and how that

totality measures up against a program’s requirements. Absent evidence of a discriminatory

motive in assessing the numerous factors ECU was entitled to rely on to determine a

student’s qualifications to remain enrolled in one of its programs, we have no cause to

accept Neal’s invitation to reweigh those factors or second-guess ECU’s determination that

Neal failed to satisfy them.

This conclusion does not chart new territory. As the district court recognized, Neal’s

case bears many similarities to our decision in Halpern. There, a former medical student

alleged that a medical school discriminated against him on account of his disability when

25 USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 26 of 40

the school dismissed him for unprofessional behavior.

. Like Neal, Halpern

did not disclose any diagnoses to the school and “did not request any disability-related

accommodations.”

. Though the precise nature of his conduct differed from

Neal’s, throughout his enrollment in the medical school, the student demonstrated

“difficulties with professionalism” such as behaving in an abusive manner, absences

without providing notice, tardiness, “resistan[ce] to feedback,” and “bizarre behavior” on

campus.

at 457–58. The student also had some successes throughout his enrollment,

including positive feedback and “passing or honors marks” on components of his clinical

rotations.

.

In assessing whether the medical student had met his burden of establishing that he

was “otherwise qualified” to remain enrolled, we first recognized our “comparative

disadvantage in determining whether [he] is qualified to continue in the Doctor of Medicine

program,” leading us to “accord great respect to the [school’s] professional judgment on

the[] issue[].”

. “[F]ind[ing] that professionalism was an essential requirement of

the Medical School’s program,” we concluded that Halpern had failed to show that he

“satisf[ied] this requirement.”

Specifically, we noted that the school “identified

professionalism as a fundamental goal of its educational program, and it required that

students demonstrate professional behavior and attitudes prior to graduating.”

Further,

we rejected the student’s argument that he satisfied this requirement “because he received

passing marks in professionalism in his clinical rotations,” because that “fail[ed] to take

into account” other aspects of professionalism, including his “treatment of staff,” “behavior

towards faculty,” “resistance to constructive criticism,” and “failure to appear” for required

26 USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 27 of 40

components of his coursework.

at 463–64. We observed that while none of these

components may have warranted failing grades, “the school reasonably considered them

as part of an ongoing pattern of unprofessional behavior” that had “the potential . . . to

undermine patient care.”

. 9

A similar “pattern of unprofessional behavior” appears in Neal’s record and

supports ECU’s decision that—notwithstanding her GPA and positive feedback for field

work—she lacked essential professionalism requirements of the MSW Program.

2. No Genuine Material Dispute of Fact Exists in the Record

Neal makes several arguments attempting to distinguish Halpern and claiming

summary judgment was inappropriate. None persuade us, but a few warrant further

discussion. 10

Neal asserts that a dispute in the record exists as to the factual accuracy of whether

she missed classes and field supervision for unexcused reasons. She claims that this

discrepancy matters because it served as one factor supporting her dismissal. We disagree.

The undisputed record shows a pattern of missed coursework throughout Neal’s

time in the MSW Program such that ECU could rely on that evidence as one basis for its

decision. Neal voluntarily withdrew from the MSW Program in the Fall 2013 semester

9 Halpern also addressed whether the medical student was qualified with an accommodation, an analysis that isn’t required here. 10 Neal’s briefs to this Court make many sweeping claims about the record, often without any citation or with references to joint appendix pages that do not align with the brief’s characterizations and arguments. We have reviewed her arguments and the record. While we address only a handful of them in the opinion, the others would fail for the same or similar reasons to those we discuss. 27 USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 28 of 40

because she’d missed a significant number of classes, field work, and coursework. See J.A.

886 (stipulating “she eventually stopped attending classes altogether” that semester even

before her hospitalization for two weeks). Similarly, although absences were not

specifically identified as a problem during her Fall 2014 A&R Committee meeting, it did

address related concerns such as being tardy, frequently leaving class for ten or more

minutes several times during a single class, and being distracted or disruptive on her

telephone rather than attentive.

As for the Spring 2015 semester specifically, Neal stipulated that the MSW Program

required students and field instructors to meet “at least weekly” for supervisory meetings

and that students have the responsibility to set up those meetings. J.A. 894. Because of that

requirement, between February 12 and March 16, Neal “should have had at least four (4)

productive supervisory sessions with [Professor] Pierson. Instead, she had none.” J.A.

894. 11 In addition to missing a scheduled field supervision visit on March 3, Neal also

11 Neal asserts that it was inappropriate to rely on these missed classes and supervision meetings as support for ECU’s determination that she was not qualified to remain in the MSW Program because the record explains that some were due to inclement weather and some were due to her hospitalization. That argument misses the mark, as it goes to what weight ECU should have given to those absences rather than whether the record supports that they occurred. Further, given that it’s undisputed that students have the responsibility to schedule supervisory meetings each week, ECU is entitled to deference in assessing whether and how Neal attempted to reschedule or make up the missed meetings after weather foreclosed the initially scheduled meeting. Professor Pierson readily acknowledged that some of their scheduled meetings were canceled due to inclement weather, and she pointed to Neal’s failure to initiate and ensure rescheduling of those meetings, as opposed to their initial cancellation, as evidence of her lack of professionalism. See, e.g., J.A. 728 (“On February 17, 2015 our scheduled supervision was cancelled due to inclement weather (not the fault of Ms. Neal), however Ms. Neal did not reschedule this supervision or follow up with me (Continued) 28 USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 29 of 40

missed Dr. Yoon’s class and Dr. Carawan’s field seminar. J.A. 893. And while Neal

appeared for her field supervision on February 10, Professor Pierson stated that she “was

unable to provide supervision due to Ms. Neal” being “distracted and off topic, often

moving about the room, and did not allow me to redirect her to supervision topics.” J.A.

728. In short, Professor Pierson classified such “lack of engagement” in person as the

equivalent of not appearing at all for their supervision meeting. J.A. 728–29. In short, the

record does not contain a genuine issue of material fact about whether—over the entire

course of Neal’s enrollment in the MSW Program—missed classes and supervision

meetings played a recurring role that could reasonably factor into ECU’s retention

determination.

Even more problematic for Neal, however, is that this was just one of many factors

that (1) ECU cited at the time of her dismissal and (2) the district court pointed to as a basis

for concluding that she failed to demonstrate she was “otherwise qualified” to remain in

the MSW Program. Thus, even if Neal had been able to cast doubt on whether her absences

from class and supervisory meetings would have warranted dismissal, that would not alter

the outcome here given the totality of the undisputed record. Namely, and as recounted

earlier, Neal admitted to exhibiting unprofessional behavior toward MSW Program faculty

as I requested. On both February 24, 2015 and March 3, 2015, Ms. Neal failed to attend our pre-scheduled supervision sessions and did not reschedule or respond to my attempts to reach her.”). Lastly, regardless of how the Spring 2015 A&R Committee weighed those missed classes and meetings in its initial decision to dismiss Neal, the Graduate Review Panel expressly did not consider any of the absences that occurred due to Neal’s hospitalization when it recommended upholding the decision, nor did it specifically cite any absences from classes or supervision meetings as a basis for its recommendation. 29 USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 30 of 40

in numerous incidents that occurred in person, on the telephone, and in writings throughout

February 2015. Looking beyond her final semester of enrollment, Neal had previously been

warned that her conduct, attitude, and behavior needed to change, and ECU had assisted

her so that she could continue in the MSW Program. For example, she was permitted to re-

enroll for the Spring 2015 semester, which was before the time generally allowed following

withdrawal, and she was required to attend the Fall 2014 A&R Committee meeting at

which point she was formally cautioned about her continued enrollment in the MSW

Program, and its faculty implemented a support team to assist her in completing her field

supervision and other class assignments.

Neal also asserts the record does not support ECU’s justification that her Spring

2015 behavior was a recurrence of problems cited during the Fall 2014 semester. In

support, however, Neal cites portions of her deposition testimony that do not create a

genuine issue of material fact about her poor performance in the Fall 2014 semester. For

example, in her deposition Neal recounted how stressful it was to put together her learning

agreement each semester and she admitted to being late with the learning agreement. She

further admitted that “[i]t’s possible” she turned in additional late assignments based on

syllabus deadlines, though she indicated her professors would sometimes allow her to turn

in assignments on a different date than originally listed. 12 J.A. 2372–73. This testimony

12 The learning agreement was an essential component of a MSW Program student’s field work. It was both “a plan for the internship, [and] an evaluation instrument.” J.A. 880. Early in each semester students would submit a draft learning agreement outlining the activities in which they would participate during their placement so that they could “gain the professional competencies set out by the Council on Social Work Education,” which is (Continued) 30 USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 31 of 40

does not contradict her professors’ repeated statements that she had trouble submitting

timely class assignments. Even if professors worked with her to complete the assignments

and accepted them late, a habitual inability to meet deadlines could still be a valid basis for

later dismissal from the MSW Program. In Spring 2015, for instance, Dr. Yoon, accepted

an assignment that was “almost 3 weeks over due [sic],” J.A. 1133, but later recounted in

his declaration that although he “tried to work with Ms. Neal by grading her late

assignments” throughout her enrollment, “her consistent inability to meet deadlines was

unprofessional” and a factor in favor of her eventual dismissal. J.A. 632. Neal also contends

that her deposition testimony contradicts other record evidence about the February 10

interaction with Dr. Yoon, namely, whether she “yelled” at or pointed her finger at him

during their interaction. To put it plainly, these “discrepancies” were immaterial to

assessing this incident’s relevance to the decision to dismiss Neal from the MSW Program.

As noted, despite Neal characterizing her raised voice as getting “louder” rather than

“yelling,” J.A. 2342, she admitted that the incident was “unacceptable.” J.A. 891.

Nor did ECU act with an impermissible “imperial decree trumpet[ing] an arbitrary

and capricious bent, demanding not merely the Court’s deference but indeed its fealty,”

Opening Br. 34–35, by declining to consider the view of Neal’s psychiatrist that she could

successfully complete the MSW Program following her March 13 discharge. Whatever his

qualifications in a related field or his familiarity with the professional standards applicable

to social workers, Neal’s psychiatrist was not a member of ECU’s faculty, privy to Neal’s

“the accrediting body for all accredited Social Work degrees in the United States.” J.A. 880. 31 USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 32 of 40

academic record or the assessments of those interacting with her on campus, or ultimately

charged with the gatekeeping function of determining eligibility for the MSW Program.

There is nothing arbitrary or capricious about declining to consider his opinion under the

circumstances here. 13

In sum, the record fully supports the district court’s conclusion that ECU was

entitled to deference in its conclusion that Neal no longer met the eligibility requirements

to remain enrolled in the MSW Program. Nothing in the record causes us to deviate from

the usual approach of affording great deference to a university’s determination that a

particular student fails to meet its academic and non-academic requirements, including its

professionalism standards. On this record, Neal failed to come forward with evidence

sufficient to support a finding that she was “otherwise qualified” to remain enrolled in the

MSW Program. Because Neal cannot prove an element of her ADA discrimination claim,

ECU was entitled to summary judgment.

B. Causation

While our conclusion about the “otherwise qualified” element would be sufficient

grounds to affirm the district court’s judgment, we also address the court’s holding that

Neal had not demonstrated that her dismissal was “on the basis of” her disability. Although

13 Similar limitations exist with the declaration from MSW Program professor Tracey Carpenter-Aeby, which simply states that professors had “discretion” to excuse student absences when warranted, such as in the case of hospitalization. This conclusory statement does not address Neal’s academic record or whether she met the required academic standards as a holistic matter. Nor did Professor Carpenter-Aeby indicate any familiarity with Neal’s record. Her generic opinion does not move the ball concerning either Neal’s qualifications to remain in the MSW Program based on the totality of her academic record or ECU’s motives in deciding to dismiss her. 32 USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 33 of 40

the ADA’s causation element can be satisfied by proof that disability was “a” motivating

factor (rather than the “sole” reason) for the defendant’s decision, to establish causation

more is required than “[t]he fact that [the defendant] is aware of [the plaintiff’s]

impairment.” Haulbrook,

. Instead, “a plaintiff must show that the adverse

action occurred under circumstances that raise a reasonable inference of unlawful

discrimination.” Cogwill v. First Data Techs., Inc.,

, 380 (4th Cir. 2022)

(citation omitted). In other words, while the ADA prohibits a university from dismissing a

student on account of a disability, a university is lawfully permitted to dismiss a student on

account of misconduct triggered by a disability.

Neal challenges this conclusion, asserting that the record contains sufficient

evidence from which a jury could find that ECU dismissed her from the MSW Program

because of her disability. She points to emails between MSW Program faculty and

administration in February 2015 discussing their perceptions of her mental state and her

performance in the program. And she criticizes the district court’s reliance on Halpern,

arguing that the Court did not address causation in that decision, so it should not be part of

a causation analysis. 14 Again, we disagree with Neal.

We’ve considered the February 2015 email exchanges alongside the other record

evidence Neal relies on and conclude that the district court did not err in holding that the

14 Throughout the appeal, Neal attempts to distinguish Halpern by asserting that its holding depended on an undisputed record of unprofessional behavior, which does not exist here. For the reasons already discussed, we disagree with Neal that a genuine issue of material fact exists about the circumstances leading ECU to dismiss her from the MSW Program, so this is not a valid ground for distinguishing Halpern. 33 USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 34 of 40

undisputed record would preclude a jury from finding in favor of Neal on the issue of

causation. Viewed in the light most favorable to Neal, the emails depict a faculty concerned

for Neal’s well-being, sensitive to when and how they could address an adult graduate

student’s personal matters, and fearful that her conduct and interactions with them

beginning on February 10 and continuing through February 24 would affect her successful

performance going forward in the semester.

Far from expressing any indication that Neal should be dismissed from the program

on account of a mental impairment or perceived “manic,” J.A. 1130, “episode,” J.A. 1123,

these emails uniformly demonstrate a genuine desire to help Neal address her health quite

apart from the MSW Program and their concern that if Neal’s recent conduct and behavior

continued, her academic performance in the MSW Program would suffer. At no point did

any of the faculty members suggest that Neal had a mental disability that could itself be a

ground for removing Neal from the MSW Program. In fact, Dr. Yoon—whose email

relaying concern about how Neal behaved in their meeting spurred the series of emails that

followed—expressly stated the exact opposite: “Again, I do NOT mean to stop her from

graduating in May.” J.A. 1136.

Dr. Littlewood’s role in the email thread is particularly relevant given that she later

initiated and chaired the Spring 2015 A&R Committee meeting during which Neal was

dismissed. At one point, she cautioned that it “may be against [the Family Educational

Rights and Privacy Act] for us to discuss [Neal’s mental health and medication] in relation

to her performance in the MSW Program.” J.A. 1136–37. And her redirect appropriately

came in direct response to Neal’s faculty advisor—who did not have other interaction with

34 USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 35 of 40

Neal in her MSW Program classes or field work—disclosing a private conversation she’d

had with Neal about her ADHD medication and whether she was in any treatment at the

moment, topics that veered beyond Neal’s conduct and performance in the MSW Program

itself. Dr. Littlewood encouraged faculty to “hold[] [Neal] to the same [coursework]

standards as other students” and to “document [any] academic issues” because “[t]hey are

the issues which we can hold [her] accountable and pursue corrective action.” J.A. 1137.

To conclude that Dr. Littlewood’s and other MSW Program faculty’s words actually

show discriminatory intent would be to twist them beyond all recognition. 15 Though these

emails support Neal’s suggestion that MSW Program faculty and advisors were “aware”

of her impairment, that does not demonstrate causation. Haulbrook,

. Much

more is required and here it is completely lacking. In short, nothing in the emails calls into

question why the MSW Program convened the A&R Committee meeting to decide whether

to dismiss Neal.

In particular, Neal’s conduct from February 25 to March 16 plays a unique but

central role in demonstrating the lack of evidence of causation in both the A&R

Committee’s initial decision to dismiss her and the Graduate Review Panel’s

recommendation to uphold that decision. Part of the uniqueness of that role stems from the

15 In perhaps an unwittingly candid moment, Neal admits as much by arguing that her February 2015 behavior alone would not support her dismissal because the MSW Program faculty did not dismiss her immediately following her displays of mania, but instead adopted a “wait and see posture.” Opening Br. 33. Instead, it was only after she missed additional communications, classes, and field work that they convened the A&R Committee to consider her dismissal in light of the totality of her academic performance and record. 35 USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 36 of 40

fact that the A&R Committee relied on that conduct and the Graduate Review Panel refused

to consider it, demonstrating both entities were not acting with discriminatory motive.

As for the A&R Committee’s initial decision—that the same individuals who were

party to the February 2015 emails did not act to dismiss her until after further concerning

academic conduct occurred bolsters the conclusion that no causal link can be shown

between Neal’s disability and her dismissal. Regardless of the reasons for these events, it’s

undisputed that from February 25 to March 16, Neal missed class, supervision meetings,

field work, and class assignments. She also failed to respond to numerous emails and phone

calls from faculty requesting that she respond. Although Neal contends her post-February

25 conduct should have been excused given her hospitalization, it’s undisputed that the

Spring 2015 A&R Committee convened to decide her future in the MSW Program only

after these additional events related to her academic performance occurred. It’s further

undisputed that at the time the A&R Committee acted, no one on the Committee knew of

the reasons for her hospitalization or of her Bipolar Disorder diagnosis. Whatever their

concerns about Neal’s mental health in mid-February, MSW Program faculty did not

convene the A&R Committee meeting to discuss Neal’s dismissal until further concerns

about her academic performance had occurred. And both Dr. Littlewood’s email

delineating the basis for convening the A&R Committee and the MSW Program’s letter

explaining why Neal was being dismissed cited a host of non-discriminatory reasons

supporting the decision.

Further breaking the link between Neal’s dismissal and any discriminatory motive

is the Graduate Review Panel’s independent evaluation of Neal’s record and its

36 USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 37 of 40

recommendation to uphold her dismissal while not holding Neal accountable for her

conduct during her hospitalization. As discussed earlier, the Graduate Review Panel was

comprised of individuals outside the MSW Program; they were not part of the February

2015 faculty emails. Moreover, the Panel expressly did not rely on any events that occurred

after February 25, for which time it apparently believed Neal’s hospitalization provided

sufficient grounds for excusing her absences and missed work. And yet it found that the

totality of Neal’s academic record demonstrated grounds for not meeting the MSW

Program’s standards for continued enrollment. At both the initial and internal appeals stage

of ECU’s decision to dismiss Neal, there’s no record evidence that her disability was a

factor, meaning that she cannot prove this essential element of her prima facie case of

discrimination.

Both the A&R Committee and the Graduate Review Panel expressly—and

lawfully—pointed to Neal’s January 2015 incidents in person, via telephone, and through

email as factors supporting the decision to dismiss her. Although our decision in Halpern

did not expressly address causation, the district court aptly cited it for a principle that we

agree is equally relevant to the causation inquiry: “misconduct—even misconduct related

to a disability—is not itself a disability and may be grounds for dismissal” Halpern,

(cleaned up). Numerous authorities acknowledge the same distinction.

Newberry v. E. Tex. State Univ.,

, 279–80 (5th Cir. 1998) (distinguishing

between dismissal for “conduct [that] is symptomatic of disability,” which is a legitimate,

nondiscriminatory motive and dismissal based on a “collateral assessment of disability,”

which would violate the ADA); Palmer v. Circuit Court,

(7th Cir. 1997)

37 USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 38 of 40

(same); see also Pence v. Tenneco Auto. Operating Co.,

, 811–12 (4th

Cir. 2006) (holding employer’s belief that plaintiff engaged in misconduct was a

permissible nondiscriminatory reason for termination of employment even if his employer

was factually incorrect and even if employer also thought the misconduct was caused by a

mental impairment); 2008 EEOC Guidance,

, at *9 (“The ADA does not

protect employees from the consequences of violating conduct requirements even where

the conduct is caused by the disability.”).

Neal repeatedly acknowledged that her February 2015 interactions—from her

February 10 incident in Dr. Yoon’s office to her voicemail, emails, and phone call with

Professor Pierson—were “unprofessional” and “inappropriate.” But she contends that they

resulted from a transient condition for which she could be adequately treated through

medication and thus should not have been cited against her. Similarly, she admits that

during her hospitalization, she missed multiple classes, field work, field supervision, and

class assignments—though she argues those absences should be “excused” given why they

occurred. But ECU was not required to retroactively excuse misconduct related to her later

Bipolar diagnosis. 16 Neal’s insistence to the contrary sought “not a disability

16 Because it is particularly relevant here, we reiterate that Neal never requested an accommodation before her dismissal from the MSW Program. Further, she is proceeding solely under the “regarded as” prong of establishing a disability, which does not require sua sponte accommodations for a perceived impairment that has caused unprofessional conduct. See

(o)(4) (stating that covered entities are “not required to provide a reasonable accommodation to an individual who meets the definition of disability solely under the ‘regarded as’ prong”). Critically, ECU could dismiss Neal for failing to meet the MSW Program’s academic requirements—which included its professionalism criteria—even if her (Continued) 38 USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 39 of 40

accommodation, but ‘a second chance to better control [her] treatable medical condition.’”

Halpern,

(quoting Hill v. Kan. City Area Transp. Auth.,

(8th Cir. 1999)); Off. of the Senate Sergeant. at Arms v. Off. of Senate Fair Emp. Pracs.,

(Fed. Cir. 1996) (“[T]he ADA . . . does not require a retroactive

accommodation for a disability, which is what is meant by a fresh start.”); see also Davila

v. Qwest Corp.,

(10th Cir. 2004) (“[E]xcusing . . . misconduct to

provide a fresh start/second chance to an employee whose disability could be offered as an

after-the-fact excuse is not a required accommodation under the ADA.” (citations

omitted)). At bottom, Neal wants to have it both ways, arguing she was a qualified

individual with no accommodation who was dismissed on the basis of her Bipolar Disorder,

yet demanding that ECU had to overlook everything that occurred in February and March

2015 because of evidence about her subsequently diagnosed mental impairment. The ADA

has no such requirement.

The A&R Committee appropriately relied on what it knew about Neal’s

performance during the totality of her enrollment, including February and March 2015

when it made the initial decision to dismiss Neal. The Graduate Review Panel did not act

arbitrarily in deciding not to consider Neal’s conduct after February 25 and yet to rely, in

part, on her earlier conduct as a factor in recommending that decision be upheld. Neither

course demonstrates a genuine issue of material fact about what led to Neal’s dismissal and

misconduct was later disclosed to be the result of a disability so long as the disability itself was not the basis for the decision. As we recognized in Halpern, “the law does not require the school to ignore misconduct that has occurred because the student subsequently asserts it was the result of a disability.”

. 39 USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 40 of 40

whether her disability was a motivating factor in that decision. We therefore agree with the

district court that this separate reason also demonstrates that ECU was entitled to summary

judgment.

IV.

We in no way make light of mental illness. However, for purposes of assessing ADA

compliance, universities have a responsibility to the entire academic community and to the

public to ensure that a student is qualified to meet the lawful requirements of their program

especially where, as here, conferral of a degree is a prerequisite to state licensure

requirements. ECU properly exercised its discretion in that regard and bent over backwards

to assist Neal during her enrollment in the MSW Program. It gave her a second chance with

the out-of-order readmission in the Spring 2014 semester. She received a third chance in

the Fall 2014 semester following the A&R Committee proceeding. And MSW Program

faculty gave her a fourth chance as they tried to work with her thereafter, including during

and following the February 10 encounter in Dr. Yoon’s office. Now, Neal wants to force

ECU to provide a fifth chance. The ADA contains no such requirement given an absence

of evidence supporting her claim of discriminatory dismissal.

For the reasons set forth above, we affirm the judgment of the district court.

AFFIRMED

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