Zeeshan Shaikh v. Lincoln Memorial University

Filing

OPINION filed: AFFIRMED, decision not for publication. Martha Craig Daughtrey, Circuit Judge; Julia Smith Gibbons, Circuit Judge; and Richard Allen Griffin, (authoring), Circuit Judge.

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NOT RECOMMENDED FOR PUBLICATION
File Name: 15a0300n.06
No. 14-6220
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
ZEESHAN SHAIKH,
Plaintiff-Appellant,
v.
LINCOLN MEMORIAL UNIVERSITY,
Defendant-Appellee.

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Apr 27, 2015
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF TENNESSEE

BEFORE: DAUGHTREY, GIBBONS, and GRIFFIN, Circuit Judges.
GRIFFIN, Circuit Judge.
Plaintiff Zeeshan Shaikh was a medical student at defendant Lincoln Memorial
University’s (“LMU”) DeBusk College of Osteopathic Medicine. LMU dismissed Shaikh from
the school after he initially failed to complete his first semester courses and failed two additional
classes after a leave of absence. Shaikh filed suit, alleging that LMU violated his rights under
the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq., by failing to provide him reasonable
accommodations.

On appeal, he claims that the district court erred in granting summary

judgment because there was a question of fact on the issue of reasonable accommodation. We
disagree and affirm the judgment of the district court.

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I.
LMU opened the doors of its medical school in August 2007. Since its inception, it has
offered a four-year, full-time Doctor of Osteopathic Medicine curriculum, which includes two
years of pre-clinical science classes and two years of clinical rotations. LMU accepted Shaikh
into its fall 2009 entering class. Prior to his admission, Shaikh was diagnosed with Attention
Deficit/Hyperactivity Disorder (“ADHD”) and Dyslexia. He was prescribed Adderall to treat his
ADHD and took Adderall during his time at LMU because it helped him focus. Shaikh disclosed
that he had difficulty reading in his application to LMU and interview with LMU officials.
In April 2009, Shaikh submitted documentation of his ADHD and Dyslexia diagnoses to
Associate Dean of Students Jonathan Leo, Ph.D. Shaikh later emailed Dr. Leo to ask if he had
received it. Dr. Leo responded, “I got it. You will get time and a half on written exams and a
quiet room. I’m on the road right now, But I will be back in the office tomorrow if you want to
talk about it.” Shaikh replied, “That sounds fine. I have received 50% more time throughout
undergrad and that worked fine.” In his reply, Shaikh went on to ask Dr. Leo whether Shaikh
needed to pick up a “Student Accommodation Form,” or whether Dr. Leo would send one to
Shaikh’s professors.

The LMU Student Handbook set forth the following procedure for

receiving disability accommodations:
All documentation related to the student’s disability and accommodations shall be
maintained by the Assistant Dean of Students.
Upon receipt of the
documentation, the Assistant Dean of Students will meet with the student, either
in person or by telephone, to discuss and make arrangements for accommodations
for the upcoming semester. A Student Disabilities form will be completed listing
the agreed upon accommodations, and will be signed by the student, the student’s
faculty members and the Assistant Dean of Students. This process shall be
followed each semester for which the student wishes to request accommodations.
If a problem arises concerning the reasonable accommodations, the student should
contact the Assistant Dean of Students.

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There is no evidence to suggest that Dr. Leo ever responded to Shaikh’s question about the
accommodation form. Nor is there evidence that Shaikh followed up with Dr. Leo or another
LMU faculty member to complete an accommodation form.

Ultimately, no written

accommodation form was completed.
For the fall 2009 semester, Shaikh did not request any additional accommodations
beyond those he accepted in his email exchange with Dr. Leo. He was permitted fifty percent
more time during examinations and a quiet room in which to take them. Additionally, he was
allowed to sit at the front of his classes and had access to lecture notes, PowerPoint
presentations, and an electronic Blackboard prepared by instructors approximately one week
before classes. LMU also posted video recordings of class lectures online so students could view
them as many times as necessary. That semester, Shaikh took five standard pre-clinical science
classes. The Anatomy Department assigned Shaikh a tutor at the beginning of the semester for
one of his classes, Medical Gross Anatomy. In October 2009, however, Shaikh stopped studying
for that class to focus on Molecular Fundamentals of Medicine I (“MFM-I”). Nonetheless, at the
end of the semester, Shaikh decided not to take his scheduled MFM-I final examination, citing
personal issues.
Instead of completing the semester, Shaikh took a leave of absence. During his leave, he
enrolled in a short-term program for medical students with learning disabilities at another
university. After completing the program, Shaikh received permission to reenroll at LMU.
Shaikh submitted to LMU disability-related documentation from his short-term program,
including a report with nineteen “specific recommendations” for success in medical school.
For the fall 2010 semester, Shaikh did not specifically request any additional
accommodations and was provided the same accommodations he had been given the prior
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academic year. He repeated the same five courses he had previously taken. At the end of the
semester, he earned a 69.58 percent grade in Medical Gross Anatomy, which, when rounded up
to 70 percent, allowed Shaikh to pass all five courses.
Shaikh did not request any additional accommodations for the spring 2011 semester.
That semester, Shaikh failed two of his pre-clinical courses and had failing averages in two
others. He met with the Student Progress Committee (“SPC”) on April 29, 2011, to discuss his
academic progress. According to the Student Handbook, the SPC was charged with monitoring
student progress and ensuring that all students meet LMU’s graduation requirements.

For

students who fail two courses of the pre-clinical curriculum, the SPC may recommend: requiring
the student to retake a course, take a remediation exam, or repeat an entire academic year.
Alternatively, the SPC may recommend issuing a reprimand from the dean or dismissing the
student from LMU.
During the SPC meeting, Shaikh mentioned that he might benefit from a decelerated,
five-year―rather than four-year―curriculum.

He did not submit a proposed decelerated

program or a recommendation from a health care professional in support of such a proposal.
After Shaikh was excused from the meeting, the SPC voted to dismiss him. Shortly after the
meeting, Shaikh emailed Dr. Leo, requesting for the first time a decelerated curriculum as an
accommodation. He explained, “I should have mentioned this earlier, but felt that this would be
too much to ask and that if I worked extremely hard, I could do well. . . . I am requesting
possible consideration for reasonable adjustments to my course work because clearly [] the
current pace is not working. I did briefly mention this to the SPC but wanted to give you more
detail of what I have been thinking of, so I would not have any regrets.” On May 1, 2011,
Shaikh sent an email to Dean Ray Stowers, D.O., with a proposal for a five-year decelerated
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curriculum. Again, Shaikh did not submit documentation from a health care professional in
support of such an accommodation. The following day, Shaikh met with Dr. Stowers, who
informed him that Dr. Stowers would accept the SPC’s recommendation to dismiss.
Shaikh appealed the dismissal. Attached to his letter of appeal dated May 9, 2011,
Shaikh produced for the first time a letter from Barbara Guyer, Ed.D., recommending that LMU
provide Shaikh “double time on all quizzes and tests” and “a decreased course load” that “should
result in successful completion of the Basic Science curriculum in three years,” rather than two.
Shaikh addressed his proposal before the Appeal Board, but his appeal was denied.
Thereafter, Shaikh filed this action in district court, alleging that LMU failed to provide
him reasonable accommodations, in violation of the ADA and Section 504 of the Rehabilitation
Act.
II.
We review de novo a district court’s grant of summary judgment. Smith v. Ameritech,
129 F.3d 857, 863 (6th Cir. 1997). Summary judgment is proper if the evidence shows that
“there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). “We consider all facts and inferences drawn therefrom in
the light most favorable to the nonmovant.” City of Wyandotte v. Consol. Rail Corp., 262 F.3d
581, 585 (6th Cir. 2001).
Claims brought under the Rehabilitation Act are generally reviewed under the same
standards that govern ADA claims. Jakubowski v. Christ Hosp., Inc., 627 F.3d 195, 201 (6th
Cir. 2010). To establish that he was dismissed from an academic program in violation of the
ADA or Rehabilitation Act, a plaintiff must show that (1) he is handicapped or disabled, (2) he is
“otherwise qualified” to continue in the program, and (3) he was dismissed on the basis of his
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handicap or disability. Kaltenberger v. Ohio Coll. of Podiatric Med., 162 F.3d 432, 435 (6th Cir.
1998). “A handicapped or disabled person is ‘otherwise qualified’ to participate in a program if
[he] can meet its necessary requirements with reasonable accommodation.” Id. (citing Sandison
v. Mich. High Sch. Athletic Ass’n, Inc., 64 F.3d 1026, 1034 (6th Cir. 1995)); see also Se. Cmty.
Coll. v. Davis, 442 U.S. 397, 406 (1979) (“An otherwise qualified person is one who is able to
meet all of a program’s requirements in spite of his handicap.”). “A plaintiff asserting a
violation of the ADA or Rehabilitation Act bears the burden to establish that he is qualified.”
Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454, 462 (4th Cir. 2012). A plaintiff thus
bears “the burden of proposing an accommodation and proving that it is reasonable,”
Jakubowski, 627 F.3d at 202, including establishing that he can meet a program’s “necessary
requirements” with that accommodation, Kaltenberger, 162 F.3d at 435.
“A publicly funded university is not required to provide accommodation to a student
under the ADA or Rehabilitation Act until the student provides a proper diagnosis of his claimed
disability and specifically requests an accommodation.” Carten v. Kent State Univ., 78 F. App’x
499, 500−01 (6th Cir. 2003) (citing Kaltenberger, 162 F.3d at 437); see also Wynne v. Tufts
Univ. Sch. of Med., 976 F.2d 791, 795 (1st Cir. 1992) (“A relevant aspect of [the reasonableness]
inquiry is whether the student ever put the medical school on notice of his handicap by making a
sufficiently direct and specific request for special accommodations.” (internal quotation marks
omitted)). The ADA and Rehabilitation Act “do not require ‘an educational institution to lower
or to effect substantial modifications of standards to accommodate a handicapped person.’”
Kaltenberger, 162 F.3d at 436 (quoting Se Cmty. Coll., 442 U.S. at 413). While a university
“need not be required to make fundamental or substantial modifications to accommodate the

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handicapped, it may be required to make reasonable ones.”

Id. (internal quotation marks

omitted).
In reviewing the substance of academic decisions, courts “‘should show great respect for
the faculty’s professional judgment.’” Id. (quoting Regents of Univ. of Mich. v. Ewing, 474 U.S.
214, 225 (1985)). “‘University faculties must have the widest range of discretion in making
judgments as to the academic performance of students and their entitlement to promotion or
graduation.’” Id. (quoting Ewing, 474 U.S. at 225 n.11). “Courts must also give deference to
professional academic judgments when evaluating the reasonable accommodation requirement.”
Id.; see also Halpern, 669 F.3d at 463 (surveying cases). “As we have noted, ‘the federal
judiciary is ill equipped to evaluate the proper emphasis and content of a school’s curriculum.’”
Kaltenberger, 162 F.3d at 436 (quoting Doherty v. S. Coll. of Optometry, 862 F.2d 570, 576 (6th
Cir. 1988)) (alteration omitted). “We should only reluctantly intervene in academic decisions,
‘especially regarding degree requirements in the health care field when the conferral of a degree
places the school’s imprimatur upon the student as qualified to pursue his chosen profession,’”
id. at 437 (quoting Doherty, 862 F.2d at 576), “a profession whose practitioners are entrusted
with life and death decisions.” Manickavasagar v. Va. Commonwealth Univ., 667 F. Supp. 2d
635, 643 (E.D. Va. 2009).
III.
The parties dispute the second and third elements of Shaikh’s prima facie case: whether
he is “otherwise qualified” for LMU’s medical program, and whether he was dismissed on the
basis of his disability. Fundamentally, however, Shaikh’s argument on appeal with respect to
both elements is that he has established an underlying question of fact: whether LMU failed to
provide him reasonable accommodations.

In light of the circumstances and substance of
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Shaikh’s proposed decelerated curriculum, Shaikh has not satisfied his burden of proposing a
reasonable accommodation. Absent a disputed question of fact for the jury on this issue, we
affirm the district court’s grant of summary judgment in favor of LMU.
Shaikh’s own admissions and argument on appeal support the conclusion that without
accommodation he is unqualified to participate in LMU’s medical program. The question for
this court is therefore “whether he proposed a reasonable accommodation to account for his
disability.” Jakubowski, 627 F.3d at 202.
LMU argues that Shaikh’s proposed decelerated curriculum was declined, in part,
because Shaikh made it after failing two major classes. The parties do not dispute that Shaikh
failed to specifically request any accommodations beyond those he agreed to in an email
exchange with Dr. Leo in spring 2009 until after he had failed to complete his first semester,
took a leave of absence, reenrolled but subsequently failed two first-year courses, and had failing
averages in two other courses. Shaikh admits that he “began to struggle almost as soon as [he]
entered” LMU, including “perform[ing] poorly on [his] first Anatomy examination” on
August 28, 2009. Nevertheless, only once he had failed multiple classes and was before the SPC
on account of his academic performance did Shaikh mention that he might benefit from a
decelerated program. Only after meeting with the SPC did he make such a suggestion to Dr.
Leo. And only after his dismissal had been accepted by Dr. Stowers did Shaikh submit a health
care professional’s recommendation that a decelerated curriculum would accommodate his
disability. That is not to say that Shaikh’s proposal was per se untimely, but that LMU could
have reasonably considered Shaikh’s poor academic performance in determining whether
dismissal was appropriate and whether he was otherwise qualified for the program.

See

Kaltenberger, 162 F.3d at 436 (observing that no reasonable trier of fact could conclude that the
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college failed to reasonably accommodate the plaintiff’s disability where plaintiff had already
failed two courses in her first-year program before she requested specific accommodation).
LMU also contends that Shaikh’s decelerated curriculum proposal was not a “reasonable”
accommodation because it would have involved fundamental substantive and structural changes
to LMU’s medical program, posing staffing challenges and financial aid complications. LMU
administrators opined that designing a five-year curriculum would have required “a huge amount
of time and effort,” including reallocating course content, and preparing it for accreditation.
Moreover, Shaikh’s proposal as written would have precluded Shaikh from participating in
requisite group examinations. Plaintiff does not offer evidence to the contrary. Instead, he
argues that LMU failed to follow its own disability accommodation policy and his request for a
decelerated program was denied without “real consideration or study.”
Viewing the evidence in the light most favorable to Shaikh, we conclude that he has not
established a genuine issue of fact of whether he proposed a reasonable accommodation.
“Although determination of the reasonableness of a proposed modification is often fact-specific,
a court may grant summary judgment in favor of a defendant if the plaintiff fails to present
evidence from which a jury may infer that the accommodation is ‘reasonable on its face, i.e.,
ordinarily or in the run of cases,’ or if the defendant establishes as a matter of law that the
proposed modification will cause ‘undue hardship in the particular circumstances.’” Halpern,
669 F.3d at 464 (quoting U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401−02 (2002)). Under the
circumstances, no reasonable juror could find that Shaikh’s proposed accommodation was
reasonable.

LMU has introduced unrefuted evidence that Shaikh’s proposed decelerated

curriculum would have required significant modification to LMU’s curriculum. The ADA and
Rehabilitation Act “do not require an educational institution to . . . effect substantial
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modifications of standards to accommodate” a person with a disability. Kaltenberger, 162 F.3d
at 436 (internal quotation marks omitted).
Although we do not condone LMU’s failure to abide by its own policies (e.g. to initially
meet with Shaikh in person or by telephone and complete a student accommodation form), the
relevant inquiry is whether LMU violated the ADA or Section 504 of the Rehabilitation Act, not
whether LMU followed its internal policies. Shaikh admits that he accepted the modifications
initially offered to him and that he waited until he was already before the SPC and eligible for
dismissal before raising the possibility that a decelerated program might have been a reasonable
accommodation. While Shaikh argues that LMU denied his request without “real consideration
or study,” the nature of Shaikh’s proposal―a significant departure from the only accredited
curriculum at LMU―alone supports the proposition that Shaikh’s proposed accommodation was
not reasonable. In this context, we “show great respect for the faculty’s professional judgment”
on issues of modification to curriculum and the conferring of degrees, Kaltenberger, 162 F.3d at
436 (internal quotation marks omitted), because questions of “the proper emphasis and content of
a school’s curriculum” are ones that “the federal judiciary is ill equipped to evaluate,” id.
(quoting Doherty, 862 F.2d at 576).
To the extent that Shaikh also specifically requested that LMU provide him “double
time” on tests, rather than time and a half,1 the district court did not err in determining that LMU
was reasonable to decline such a request after Shaikh had already failed two courses and had not

1

It is not clear that Shaikh specifically requested this accommodation. He made reference in his
letter of appeal to various recommendations from experts, including Dr. Guyer, but did not specifically
mention “double time” or discuss the difference that he anticipated such an accommodation would make,
as opposed to time and a half. (See Letter of Appeal, R. 11-1, ID 241 (“Dr. Guyer offers
recommendations to help me succeed . . . .”); id. at 306 (letter from Dr. Guyer recommending “double
time on all quizzes and tests,” as well as a “decreased courseload”).)

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used the additional time given. As the district court correctly observed, Shaikh did not use all of
the additional time provided to him under a time-and-a-half test-taking accommodation. For
example, in the spring 2011 semester, Shaikh received failing grades in Molecular Fundamentals
of Medicine II (“MFM-II”) and Behavior Neuroscience (“BNS”). Shaikh completed his two
MFM-II exams early, failing to use 36.5 minutes of his remaining time on his first MFM-II
exam, which resulted in a grade of 54.45 percent, and 11.5 minutes of remaining time on his
second MFM-II exam, which resulted in a grade of 65.93 percent. A passing grade was 70
percent. He similarly completed his first BNS exam 25 minutes early and received a grade of
64.37 percent and failed to use 9 minutes of remaining time on another BNS exam that resulted
in a grade of 64.63 percent. Shaikh acknowledges that he did not use all the exam time given to
him. Under these circumstances, even assuming he requested the accommodation and it was
reasonable, Shaikh has not established a fact question on whether he would have successfully
completed the requirements of the program with this accommodation. LMU is entitled to
summary judgment in its favor.
IV.
For these reasons, we affirm the judgment of the district court.

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