Stephanie Zimmeck v. Marshall University Board
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:13-cv-14743 Copies to all parties and the district court/agency. [999716655].. [15-1572]
Appeal: 15-1572
Doc: 21
Filed: 12/11/2015
Pg: 1 of 8
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1572
STEPHANIE ZIMMECK,
Plaintiff - Appellant,
v.
MARSHALL UNIVERSITY BOARD OF GOVERNORS, d/b/a Marshall
University, Joan C. Edwards School of Medicine; AARON
MCGUFFIN, individually and as Senior Associate Dean for
Student Affairs; TRACY LEGROW, individually and as Assistant
Dean for Academic Affairs; ROBERT C. NERHOOD, individually
and as Interim Dean of Marshall University School of
Medicine; MARIA VEITIA, individually and as Associate Dean
for Student Affairs, inclusive,
Defendants – Appellees,
and
JOSEPH L. SHAPIRO, individually and as Dean of the Marshall
University School of Medicine,
Defendant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.
Robert C. Chambers,
Chief District Judge. (3:13-cv-14743)
Submitted:
November 24, 2015
Decided:
December 11, 2015
Before WILKINSON, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Appeal: 15-1572
Doc: 21
Filed: 12/11/2015
Pg: 2 of 8
Jason J. Bach, THE BACH LAW FIRM, LLC, Las Vegas, Nevada, for
Appellant.
Cheryl Lynne Connelly, CAMPBELL WOODS, PLLC,
Huntington, West Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
Appeal: 15-1572
Doc: 21
Filed: 12/11/2015
Pg: 3 of 8
PER CURIAM:
Stephanie
Zimmeck
appeals
the
district
court’s
order
dismissing her due process claims * and granting summary judgment
to
the
Marshall
University
Board
of
Governors.
Finding
no
error, we affirm the district court’s orders.
I.
We review de novo a district court’s dismissal of an action
under Fed. R. Civ. P. 12(b)(6), accepting factual allegations in
the complaint as true and drawing all reasonable inferences in
favor of the nonmoving party.
Kensington Volunteer Fire Dep’t
v. Montgomery Cty., 684 F.3d 462, 467 (4th Cir. 2012).
survive
a
motion
to
dismiss,
the
complaint’s
To
“[f]actual
allegations must be enough to raise a right to relief above the
speculative level” and sufficient “to state a claim to relief
that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555, 570 (2007).
Zimmeck
alleged
that
the
Marshall
University
School
of
Medicine (“MUSOM”) dismissed her as a student in its program, in
violation of procedural and substantive due process pursuant to
42 U.S.C. § 1983 (2012).
State
shall
.
.
.
Under the Fourteenth Amendment, “[n]o
deprive
any
*
person
of
life,
liberty,
or
Zimmeck brought these claims against Aaron McGuffin, Tracy
LeGrow, Robert C. Nerhood, and Maria Veitia.
3
Appeal: 15-1572
Doc: 21
Filed: 12/11/2015
Pg: 4 of 8
property, without due process of law . . . .”
U.S. Const.
amend. XIV, § 1.
Generally, a due process claim requires a two-
part
“whether
analysis:
[the
plaintiff]
was
deprived
of
a
protected interest, and, if so, what process was . . . due.”
Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982).
Assuming,
without
deciding,
that
Zimmeck
alleged
a
protected liberty or property interest, we conclude that she
failed to allege a viable due process claim.
MUSOM dismissed
Zimmeck for academic reasons, and, thus, less process was due
than if she had been dismissed for disciplinary reasons.
the
Univ.
of
Mo.
v.
Horowitz,
435
U.S.
Bd. of
Curators
of
78,
86
(1978).
MUSOM placed Zimmeck on academic probation, notified
her that further violations of its professionalism policy could
result in dismissal, and dismissed her after she was notified of
a hearing and participated in the appeals process.
Thus, we
conclude that Zimmeck’s dismissal satisfied the requirements of
procedural due process.
Similarly,
we
conclude
that
Zimmeck
failed
to
allege
a
substantive due process claim.
A court may only override a
school’s
“it
academic
decision
if
is
such
a
substantial
departure from accepted academic norms as to demonstrate that
the person or committee responsible did not actually exercise
professional judgment.”
Regents of Univ. of Mich. v. Ewing, 474
U.S. 214, 225 (1985).
Courts should defer to “the faculty’s
4
Appeal: 15-1572
Doc: 21
Filed: 12/11/2015
professional judgment.”
Pg: 5 of 8
Id. & n.11.
Zimmeck’s own allegations
demonstrate that MUSOM dismissed her only after school officials
received several reports of unprofessional conduct.
Further,
Zimmeck admits that the events considered by MUSOM did in fact
occur.
Accordingly,
we
affirm
the
district
court’s
order
dismissing Zimmeck’s due process claims.
II.
We “review[] de novo [a] district court’s order granting
summary judgment.”
Jacobs v. N.C. Admin. Office of the Courts,
780 F.3d 562, 565 n.1 (4th Cir. 2015).
“A district court ‘shall
grant summary judgment if the movant shows that there is no
genuine
dispute
as
to
any
material
fact
entitled to judgment as a matter of law.’”
Fed. R. Civ. P. 56(a)).
and
the
movant
is
Id. at 568 (quoting
In determining whether a genuine issue
of material fact exists, “we view the facts and all justifiable
inferences
arising
therefrom
. . . the nonmoving party.”
marks
omitted).
allegations
do
in
light
most
favorable
to
Id. at 565 n.1 (internal quotation
However,
not
the
suffice,
“[c]onclusory
nor
does
a
or
mere
speculative
scintilla
evidence in support of [the nonmoving party’s] case.”
of
Thompson
v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002)
(internal quotation marks omitted).
Zimmeck argues that the district court erred in granting
summary
judgment
on
her
retaliation
5
claim
under
the
Appeal: 15-1572
Doc: 21
Filed: 12/11/2015
Pg: 6 of 8
Rehabilitation Act of 1973 (RA), 29 U.S.C.A. §§ 701 to 796l
(West 2008 & Supp. 2015), and the Americans with Disabilities
Act (ADA), 42 U.S.C. §§ 12101 to 12213 (2012).
In order to
establish a prima facie retaliation claim under the ADA and RA,
a plaintiff must establish that (1) she engaged in a protected
activity, (2) the defendant took an adverse action against her
after she engaged in the protected activity, and (3) there was a
causal connection between the two.
Freilich v. Upper Chesapeake
Health, Inc., 313 F.3d 205, 216 (4th Cir. 2002); Hooven-Lewis v.
Caldera, 249 F.3d 259, 272 (4th Cir. 2001).
As the district court found, Zimmeck failed to establish a
genuine dispute of material fact regarding whether there was a
causal
connection
between
dismissal from MUSOM.
was
close
temporal
any
protected
activity
she
did
not
her
Zimmeck argues on appeal only that there
proximity
between
her
accommodation and her dismissal from MUSOM.
admits
and
request
an
request
for
an
However, Zimmeck
accommodation
concerning
her
mental health issues until after the initial decision to dismiss
her.
See Price v. Thompson, 380 F.3d 209, 213 (4th Cir. 2004)
(“[A] causal connection for purposes of demonstrating a prima
facie
case
exists
where
the
employer
takes
[an]
adverse
employment action . . . shortly after learning of the protected
activity.”), abrogated on other grounds by Foster v. Univ. of
Md.-E.
Shore,
787
F.3d
243
(4th
6
Cir.
2015).
Because
the
Appeal: 15-1572
Doc: 21
asserted
Filed: 12/11/2015
adverse
action
Pg: 7 of 8
occurred
before
Zimmeck
requested
an
accommodation, we conclude she failed to establish her prima
facie case.
Zimmeck
also
argues
that
the
district
court
erred
in
granting summary judgment on her disability discrimination claim
under the RA and the ADA.
To establish a claim of disability
discrimination, Zimmeck was required to show “that (1) she has a
disability,
(2)
she
is
otherwise
qualified
to
receive
the
benefits of a public service, program, or activity, and (3) she
was excluded from participation in or denied the benefits of
such service, program, or activity, or otherwise discriminated
against,
on
the
basis
of
her
disability.”
Constantine
v.
Rectors & Visitors of George Mason Univ., 411 F.3d 474, 498 (4th
Cir. 2005); see Class v. Towson Univ., __ F.3d __, __, 2015 WL
7074636, at *6 & n.2 (4th Cir. Nov. 13, 2015) (No. 15-1811)
(comparing
elements
of
RA
and
ADA
claims).
“A
qualified
individual is one who, with or without reasonable modifications
to
rules,
eligibility
activity.”
policies,
requirements
or
practices,
for
meets
participation
in
the
a
essential
program
or
Halpern v. Wake Forest Univ. Health Scis., 669 F.3d
454, 462 (4th Cir. 2012) (alterations and internal quotation
marks omitted); see Class, 2015 WL 7074636, at *8.
We conclude that the district court properly relied on our
decision in Halpern in granting summary judgment to MUSOM.
7
As
Appeal: 15-1572
in
Doc: 21
Halpern,
Filed: 12/11/2015
Zimmeck
Pg: 8 of 8
engaged
in
a
substantial
amount
of
unprofessional conduct before providing MUSOM with notice of her
disabilities or proposing any accommodations.
457-59.
could
See 669 F.3d at
MUSOM repeatedly warned Zimmeck that further misconduct
result
dismissal.
in
disciplinary
sanctions
up
to
and
including
Zimmeck did not suggest any reasonable accommodation
until after MUSOM’s initial decision to dismiss her; she “sought
not a disability accommodation, but a second chance to better
control
[her]
treatable
medical
(internal quotation marks omitted).
condition.”
Id.
at
465
MUSOM gave Zimmeck numerous
chances to control her behavior or seek a formal accommodation,
but she failed to avail herself of this opportunity.
See id.
(“[T]he law does not require the school to ignore misconduct
that has occurred because the student subsequently asserts it
was the result of a disability.”).
Thus, the district court did
not err in granting summary judgment to the Defendant.
III.
Accordingly, we affirm the district court’s orders.
dispense
with
contentions
are
oral
argument
adequately
because
presented
in
the
the
facts
We
and
legal
materials
before
this court and argument would not aid the decisional process.
AFFIRMED
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?