Sina Chenari v. George Washington University

Filing

OPINION [1660516] filed (Pages: 13) for the Court by Judge Tatel. [16-7055]

USCA Case #16-7055

Document #1660516

Filed: 02/10/2017

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 11, 2017

Decided February 10, 2017

No. 16-7055
SINA CHENARI,
APPELLANT
v.
GEORGE WASHINGTON UNIVERSITY,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-00929)

Jason J. Bach argued the cause and filed the briefs for
appellant. Tracy D. Rezvani entered an appearance.
Nicholas S. McConnell argued the cause for appellee.
With him on the brief was James N. Markels.
Before: TATEL, MILLETT, and WILKINS, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: After George Washington
University Medical School expelled appellant for cheating on
an exam, he brought suit in federal court for breach of

Page 1 of 13

USCA Case #16-7055

Document #1660516

Filed: 02/10/2017

2
contract and discrimination based on disability. The district
court granted summary judgment to the University, deferring
to its view that appellant broke its honor code and finding no
violation of the relevant disability statutes. For the reasons set
forth in this opinion, we affirm.
I.
On December 14, 2012, appellant Sina Chenari, a thirdyear medical student at George Washington University, took
the Step 1 Surgery Shelf Exam, a standardized test published
by the National Board of Medical Examiners (NBME).
Before the exam, the proctor read aloud the instructions from
NBME’s official Chief Proctor’s Manual, including that
students must complete the exam in two and a half hours and
that “[n]o additional time [would] be allowed for transferring
answers” from the test booklet to the answer sheet. Chenari
also received a copy of the “Exam Guidelines,” which
contained a similar warning.
In his deposition, Chenari explained that when the
proctor called time, he discovered that he had failed to
transfer some twenty or thirty answers from the test booklet to
the front side of the answer sheet. According to Chenari, he
“panicked” and “continued to transfer my answers.” Chenari
Dep. 267:7–:9. The proctor “asked me to stop,” but “I
continued to bubble in [the answer sheet].” Id. at 269:6–:18.
When the proctor then “reached over me to try to get the
exam, I just put my hand over the booklet and the exam and
just continued to bubble in my answers.” Id. at 270:3–:6.
Once Chenari finished, he “sat back” and the proctor “picked
[the exam] up.” Id. at 278:21–280:11. As Chenari concedes,
he ended up taking an additional “90 seconds to two
minutes.” Id. at 271:12–:13.

Page 2 of 13

USCA Case #16-7055

Document #1660516

Filed: 02/10/2017

3
The proctor reported Chenari to the medical school’s
administration, as did another student present at the exam. In
response, Associate Dean for Students Rhonda Goldberg met
with Chenari to discuss the incident. According to Goldberg’s
deposition, Chenari told her that he “needed to” finish
bubbling in his answers but “probably made a mistake” by
doing so. Goldberg Dep. 23:1–:3.
Pursuant to University procedures, Goldberg formed an
Honor Code Council subcommittee to investigate. After
holding a hearing, the subcommittee issued a report
recommending Chenari’s dismissal for academic dishonesty.
The subcommittee forwarded its recommendation to the
Medical Student Evaluation Committee, and in a written
statement to that Committee Chenari took responsibility for
his “deplorable behavior” toward the proctor, acknowledging
his “clear violation of the most basic rules of th[e]
University.” Chenari Dep. Ex. 37 at 1. He nonetheless asked
for leniency because, he insisted, his “behavior did not
involve deception” and he had no prior disciplinary
infractions. Id. After a hearing, the Committee unanimously
recommended Chenari’s dismissal. The Medical School Dean
then reviewed the reports, met with Chenari, and upheld the
recommendation of dismissal. Now represented by counsel,
Chenari appealed to the Provost, arguing in a written
submission that his conduct lacked “an element of deceit” like
“cheat[ing]” or “l[ying].” Chenari Dep. Ex. 40 at 1. Rather,
his “mistake” was “completely out in the open.” Id. at 2. The
Provost denied the appeal, and the University dismissed
Chenari from the medical school.
On May 30, 2014, Chenari filed this action in the U.S.
District Court for the District of Columbia seeking
reinstatement and damages. He alleged several theories of
relief. First, he argued that he never violated the University’s

Page 3 of 13

USCA Case #16-7055

Document #1660516

Filed: 02/10/2017

4
Honor Code, so the University’s decision to dismiss him
breached its contract with him and the contract’s implied
covenant of good faith and fair dealing. Second, he claimed
that he has a disability, Attention Deficit Hyperactivity
Disorder (ADHD), which he alleged the University failed to
accommodate in violation of the Rehabilitation Act (“Rehab
Act”), 29 U.S.C. § 794(a), and the Americans with
Disabilities Act (ADA), 42 U.S.C. § 12132. Although Chenari
also claimed that he suffered from anxiety, he never argued,
either here or in the district court, that his anxiety qualified as
a disability under the disability statutes. See Adams v. Rice,
531 F.3d 936, 943 (D.C. Cir. 2008) (describing “disability” as
a “term of art under the statute[s]”). Finally, Chenari argued
that the University discriminated against him for his ADHD
and retaliated against him “when he began to advocate for his
rights,” claims he does not pursue on appeal. Compl. ¶¶ 44,
55. The University moved for summary judgment, which the
district court granted. Chenari v. George Washington
University, 172 F. Supp. 3d 38 (D.D.C. 2016).
II.
We review an order granting summary judgment de novo,
viewing the evidence and drawing all reasonable inferences in
favor of the nonmoving party. Foster v. Sedgwick Claims
Management Services, Inc., 842 F.3d 721, 725 (D.C. Cir.
2016). Summary judgment is appropriate if the movant, here
the University, “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). “A dispute about a
material fact is ‘genuine’ if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Johnson v. Perez, 823 F.3d 701, 705 (D.C. Cir. 2016)
(alteration, internal quotation marks, and citation omitted).
We begin with Chenari’s contract claims.

Page 4 of 13

USCA Case #16-7055

Document #1660516

Filed: 02/10/2017

5
A.
Under District of Columbia law, which governs here,
“‘the relationship between a university and its students is
contractual in nature.’” Manago v. District of Columbia, 934
A.2d 925, 927 (D.C. 2007) (quoting Basch v. George
Washington University, 370 A.2d 1364, 1366 (D.C. 1977)
(per curiam)). In breach of contract cases against a university,
“a judgment by school officials that a student has not
performed adequately to meet the school’s academic
standards is a determination that usually calls for judicial
deference.” Alden v. Georgetown University, 734 A.2d 1103,
1108 (D.C. 1999). This rule stems from the principle that a
diploma publicly signals a school’s confidence in a student’s
knowledge and skills, so the “‘decisions surrounding the
issuance of these credentials [should] be left to the sound
judgment of the professional educators who monitor the
progress of their students on a regular basis.’” Id. at 1109
(quoting Olsson v. Board of Higher Education, 402 N.E.2d
1150, 1153 (N.Y. 1980)). A university “will be entitled to
summary judgment unless the plaintiff can provide some
evidence from which a fact finder could conclude that there
was no rational basis for the decision or that it was motivated
by bad faith or ill will unrelated to academic performance.”
Id. (citation and internal quotation marks omitted). Similarly,
to show that a university breached the implied covenant of
good faith and fair dealing, a plaintiff must allege “either bad
faith or conduct that is arbitrary and capricious” and, in
resolving such cases, courts must not “substitut[e] their
judgment improperly for the academic judgment of the
school.” Wright v. Howard University, 60 A.3d 749, 754–55
(D.C. 2013) (alteration and internal quotation marks omitted)
(citing Allworth v. Howard University, 890 A.2d 194, 202
(D.C. 2006); Alden, 734 A.2d at 1111 n.11). True, all these
cases involve decisions about academic performance, not
honor code violations, but Chenari does not argue—nor do we

Page 5 of 13

USCA Case #16-7055

Document #1660516

Filed: 02/10/2017

6
decide—that a different standard should apply here. Cf.
Hajjar-Nejad v. George Washington University, 37 F. Supp.
3d 90, 116–18 (D.D.C. 2014) (“[C]ourts have concluded that,
particularly for medical students, professional comportment
issues fall under the umbrella of deference to academic
decisions.”). Because the standards for breach of contract and
implied covenant cases overlap, we address Chenari’s two
claims together.
The University dismissed Chenari for violating its Honor
Code. Section F(2)(a) of that Code prohibits students from
“giv[ing] or receiv[ing]” unpermitted aid on tests and
assignments, plagiarizing, falsifying reports, infringing on the
rights of other students, or “violat[ing] any other commonly
understood principles of academic honesty.” Goldberg Decl.
Ex. A at 8. The University concluded that Chenari violated
the Code’s “any other” clause by “knowingly continu[ing] to
fill in his answers on his answer sheet after time was called
and until he completed his answer sheet despite having been
instructed by a university proctor three times to stop doing
so.” Chenari Dep. Ex. 37 at 4. We agree with the district court
that this represents a perfectly “rational basis” for disciplining
Chenari. Alden, 734 A.2d at 1109. As the district court
explained, Chenari “stole time,” gaining “an unfair advantage
over the peers who adhered to the rules”—an obvious breach
of an Honor Code that prohibits violation of “commonly
understood principles of academic honesty.” Chenari, 172 F.
Supp. 3d at 49; see Alden, 734 A.2d at 1111 (“Far from
lacking a rational basis for dismissal, the Committee on
Students had sufficient academic evidence in the record from
which to determine that Alden should be dropped from the
school's rolls.”).
Chenari nonetheless argues, for four separate reasons,
that the University’s decision lacked a rational basis. First, he

Page 6 of 13

USCA Case #16-7055

Document #1660516

Filed: 02/10/2017

7
points out that the proctor failed to cite the Honor Code or
Exam Guidelines in her initial report to the University, but he
cites nothing in the University’s rules requiring that she do so.
Second, he claims that he made no “attempt . . . to conceal his
actions.” Appellant’s Br. 19. This is absurd. Just as stealing is
stealing, whether at gunpoint or in secret bank transfers, so
cheating is cheating, whether in front of a proctor or behind
the proctor’s back. Third, and “most importantly” to Chenari,
the University scored his completed answer sheet and
“determined that [he] did in fact pass the exam.” Appellant’s
Br. 20. This too is absurd—so absurd that it hardly requires a
response, other than to point out that Chenari may well have
passed the exam because he took an additional ninety seconds
to fill in his answer sheet.
Chenari’s only argument that could conceivably raise
doubts about the University’s explanation is his assertion that
transferring answers from a test booklet to the answer sheet
after time expired represented a “common and accepted
practice of the GWU medical school.” Appellant’s Br. 19. But
if that is so, why in his deposition did Chenari state that he
had seen his classmates do so “covertly,” and why, during the
disciplinary process, did he characterize his conduct as an act
“with blatant disregard for the rules and for the rights of my
fellow students”? Chenari Dep. 272:21–:22, Ex. 37 at 1. In
any event, whatever the common practice at the medical
school, this exam was administered under NBME procedures,
which expressly warned that “[n]o additional time will be
allowed for transferring answers” from the test booklet to the
answer sheet. Ruiz Decl. at 2.
Finally, Chenari argues that the University acted in bad
faith by dismissing him rather than accommodating his
ADHD. As the district court explained, however, Chenari has
pointed to no record evidence that “the [University] or any

Page 7 of 13

USCA Case #16-7055

Document #1660516

Filed: 02/10/2017

8
individual involved in the [disciplinary] process acted out of
bad faith or ill will.” Chenari, 172 F. Supp. 3d at 48. Nor does
he claim that dismissing him for cheating was either excessive
or discriminatory. Chenari simply urges us to infer that the
University acted in bad faith because it “did absolutely
nothing to help him.” Appellant’s Br. 20. But even if such an
inference would be appropriate, Chenari’s argument turns
entirely on how the University in fact responded to his
claimed disability, an issue to which we now turn.
B.
Chenari argues that the University discriminated against
him in violation of Title II of the ADA, 42 U.S.C. § 12132,
and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a).
Title II, however, prohibits discrimination only by a “public
entity,” a term the ADA defines as “any State or local
government,” an instrumentality of a state or local
government, “the National Railroad Passenger Corporation,
and any commuter authority.” 42 U.S.C. §§ 12131(1), 12132.
Because George Washington University, a private institution,
fits none of these definitions, Chenari’s Title II claim fails. Cf.
Singh v. George Washington University School of Medicine
and Health Services, 508 F.3d 1097, 1105 (D.C. Cir. 2007)
(citing 42 U.S.C. § 12182) (deciding a similar case under
Title III of the ADA, which prohibits discrimination by a
“place of public accommodation”). This pleading error,
however, makes little difference because Chenari may pursue
his claim under Section 504 of the Rehabilitation Act. See
American Council of the Blind v. Paulson, 525 F.3d 1256,
1260 n.2 (D.C. Cir. 2008) (explaining that the Rehab Act and
Title II of the ADA “are similar in substance and
consequently cases interpreting either are applicable and
interchangeable” (alterations, citations, and internal quotation
marks omitted)); Harrison v. Rubin, 174 F.3d 249, 253 (D.C.

Page 8 of 13

USCA Case #16-7055

Document #1660516

Filed: 02/10/2017

9
Cir. 1999) (“Claims and defenses under the two statutes are
virtually identical.”).
To prevail on his failure-to-accommodate claim, Chenari
must “produce sufficient evidence (a) that [he] was disabled
for the purposes of the Rehabilitation Act, (b) that [the
University] had notice of [his] disability, and (c) that [the
University] denied [his] request for a reasonable
accommodation of [his] disability.” Stewart v. St. Elizabeths
Hospital, 589 F.3d 1305, 1307–08 (D.C. Cir. 2010) (citations
omitted); see Davis v. Shah, 821 F.3d 231, 259–60 (2d Cir.
2016) (“A plaintiff may base her [section 504] discrimination
claim on . . . failure to make a reasonable accommodation.”);
see also American Council, 525 F.3d at 1260 & n.2, 1266–67
& n.14 (allowing a failure-to-accommodate theory to proceed
under the Rehab Act and “constru[ing] section 504 in pari
materia with Title II of the ADA”); McElwee v. County of
Orange, 700 F.3d 635, 640 & n.2 (2d Cir. 2012) (treating as
“interchangabl[e]” Title II’s “reasonable modifications”
requirement and Title I’s “reasonable accommodations”
requirement). The district court granted summary judgment to
the University because, in its view, Chenari had offered no
evidence showing either that the University had notice of his
disability or that he had requested an accommodation.
Chenari, 172 F. Supp. 3d at 51–56.
On appeal, Chenari insists that he did give the University
notice of his ADHD. In support he cites his deposition, in
which he claims that, in a meeting with Goldberg and another
University official in October 2012—two months before the
surgery exam—he informed them of his ADHD diagnosis,
including that he had been prescribed medication for the
disorder. In her deposition, however, Goldberg denied
Chenari’s account of the meeting, claiming that they
discussed only his academic performance.

Page 9 of 13

USCA Case #16-7055

Document #1660516

Filed: 02/10/2017

10
This is a classic “genuine dispute as to [a] material fact.”
Fed. R. Civ. P. 56(a). Under oath, Chenari testified that he
informed Goldberg of his ADHD. Under oath, Goldberg
denied it. At summary judgment, a court “may not . . . believe
one witness over another if both witnesses observed the same
event in materially different ways.” Johnson, 823 F.3d at 705.
Indeed, a court “may not believe” the movant’s witness—here
the University’s—given its obligation to view the record “in a
light most favorable to the nonmoving party”—here, Chenari.
Robinson v. Pezzat, 818 F.3d 1, 8 (D.C. Cir. 2016).
In dismissing Chenari’s testimony as “insufficient to
create a genuine dispute of material fact,” Chenari, 172 F.
Supp. 3d at 54, the district court applied the well-accepted
rule that courts may “lawfully put aside testimony that is so
undermined as to be incredible.” Robinson, 818 F.3d at 10
(quoting Johnson v. Washington Metropolitan Area Transit
Authority, 883 F.2d 125, 128 (D.C. Cir. 1989), abrogated on
other grounds by Robinson v. District of Columbia, 580 A.2d
1255, 1258 (D.C. 1990)). That scenario is “most likely when a
plaintiff’s claim is supported solely by the plaintiff’s own
self-serving testimony, unsupported by corroborating
evidence, and undermined either by other credible evidence,
physical impossibility or other persuasive evidence that the
plaintiff has deliberately committed perjury.” Johnson, 883
F.2d at 128. This is not such a case.
The University cites nothing to indicate that Chenari’s
testimony is “undermined . . . by other credible evidence,
physical impossibility or other persuasive evidence.”
Moreover, as this court has explained, evidence sufficient to
dismiss a plaintiff’s uncorroborated, self-serving testimony—
the situation here—is “rare[].” Robinson, 818 F.3d at 10. For
example, summary judgment is proper when a plaintiff’s
statement is demonstrably false after review of a “quite

Page 10 of 13

USCA Case #16-7055

Document #1660516

Filed: 02/10/2017

11
clear[]” videotape, or when the testimony is contradicted by
“multiple disinterested witnesses.” Id. (citing Scott v. Harris,
550 U.S. 372, 378 (2007); Johnson, 883 F.2d at 128–29).
Here, by contrast, we have only Goldberg’s contradictory
testimony and, as the district court pointed out, that Chenari
never mentioned his ADHD in other meetings with University
officials, including during his disciplinary proceedings. See
Chenari, 172 F. Supp. 3d at 52–54. Those facts certainly go to
Chenari’s credibility, but nothing about them is “remotely
compelling enough to require a jury to disregard” his
testimony. Robinson, 818 F.3d at 11.
Although the district court thus erred in granting
summary judgment on the notice question, this does not end
the matter. As explained above, in order to prevail on his
failure-to-accommodate claim, Chenari must demonstrate not
only that he gave notice, but also that the University denied a
requested accommodation. After considering the evidence, the
district court found that Chenari failed to seek a reasonable
accommodation. See Chenari, 172 F. Supp. 3d at 54–56.
Chenari concedes that he never requested an
accommodation, but argues that his “repeated notifications to
the administration created an obligation on [the University] to
investigate and implement reasonable accommodations.”
Appellant’s Br. 28. To be sure, there may well be cases where
the plaintiff’s need for an accommodation is so apparent that
the defendant must offer one regardless of whether the
plaintiff requested it. See, e.g., Pierce v. District of Columbia,
128 F. Supp. 3d 250, 269–70 (D.D.C. 2015) (rejecting “the
District’s suggestion that a prison facility need not act to
accommodate an obviously disabled inmate if the inmate does
not ask for accommodations”). Although we doubt that this is
such a case, we have no need to consider the question given

Page 11 of 13

USCA Case #16-7055

Document #1660516

Filed: 02/10/2017

12
that the record makes abundantly clear that the University did
offer Chenari an accommodation.
As Chenari conceded in his deposition, University
officials twice referred him to counseling and therapy,
including once to a specific counselor to deal with his anxiety
about a course involving roleplaying. Chenari acknowledged
that he never followed up on those referrals, insisting that he
had “no time,” though he never requested time off to seek
therapy—as he also concedes. Chenari Dep. 246:8–:9.
In addition to these express offers of assistance, the
University has an Office of Disability Support Services,
which, according to its director, “receive[s] and evaluate[s]
requests for accommodations from students.” McMenamin
Decl. 1. Goldberg explained in her declaration that she tells
all first-year students that “if they have a disability and need
to request an accommodation, it is the student’s responsibility
to go to [the Office] to pursue that matter.” Goldberg Decl. 1.
Moreover, the University’s “First Year Survival Guide” for
medical students instructs “[s]tudents who suspect that they
may have a disability[] which may require an
accommodation” to contact the Office.
Finally, the Office of Disability Support Services
maintains a website that walks students through the process
for obtaining a reasonable accommodation. See Disability
Support
Services,
George Washington
University,
https://disabilitysupport.gwu.edu/ (last visited Feb. 2, 2017).
At the time Chenari attended the University, the website
included specific instructions about how students with ADHD
could obtain accommodations. Although Chenari testified that
he “did not know” about the website, he admitted receiving
and “looking through” the First Year Survival Guide, and as
noted above, Goldberg reported that she told all entering

Page 12 of 13

USCA Case #16-7055

Document #1660516

Filed: 02/10/2017

13
students about the disability office. Chenari Dep. at 176:19,
186:18–19.
To sum up, then, the University not only twice offered
Chenari counseling, but also, through its Disability Office and
that office’s website, offered all students a procedure for
obtaining any reasonable accommodation they might need.
The Rehabilitation Act requires nothing more.
III.
For the foregoing reasons, we affirm.
So ordered.

Page 13 of 13