Rollins v. Board of Trustees of The University of Alabama, The et al
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 9/29/2014. (PSM)
2014 Sep-29 AM 10:02
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
DOUGLAS LEE ROLLINS, III,
) Case No.: 2:12-cv-2458-AKK
THE BOARD OF TRUSTEES OF
THE UNIVERSITY OF ALABAMA,
This lawsuit stems from Douglas Lee Rollins, III’s dismissal for academic
reasons from The University of Alabama at Birmingham School of Dentistry
(“SOD”) program after his first year. According to Rollins, the SOD should have
allowed him to remediate the Dental Anesthesia course he failed or to repeat his
first year. Doc. 20. Rollins contends that his dismissal violated his due process
rights and that the SOD treated him less favorably than two classmates – an
African American female (Comparator One) and a white female (Comparator
Two). Consequently, Rollins filed this lawsuit against the Board of Trustees of
The University of Alabama (“UAB”) and Dean Michael S. Reddy, DMD
(collectively “Defendants”), seeking declaratory and injunctive relief for alleged
violations of his due process and equal protection rights under the Fourteenth
Amendment and the Constitution of Alabama of 1901, Article I, §§ 1, 6, and 22
(Counts I and II), and, as to UAB solely, for alleged violations of his rights under
Title VI of the Civil Rights Act of 1964, and Title IX of the Education
Amendments of 1972 (Counts III and IV). The court has for its consideration the
parties’ cross motions for summary judgment.1 Docs. 46, 48, 54. For the reasons
outlined fully below, Defendants’ motions are due to be granted, and Rollins’
motion is due to be denied.
I. SUMMARY JUDGMENT STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56 (c), summary judgment is proper
“if the pleadings, the discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56 (c). “Rule 56 (c)
mandates the entry of summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party
Rollins also filed a Motion in the Spirit of Rule 56(d), doc. 40, which the court DENIES
because it is untimely, see Fed. R. Civ. P. 34(b)(2)(A), Thomas v. Pacificorp, 324 F.3d 1176,
1179 (10th Cir. 2003), and Boral Indus., Inc. v. Cont’l Cas. Co., 144 F. App’x 36, 38 (11th Cir.
2005), and also because Rollins failed to establish that he is entitled to the relief he seeks, see
Barfield v. Brierton, 883 F.2d 923, 932 (11th Cir. 1989). Consequently, Rollins’ Motion to
Substitute an Exhibit Page, doc. 45, is MOOT.
will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The moving party bears the initial burden of proving the absence of a
genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving
party, who is required to “go beyond the pleadings” to establish that there is a
“genuine issue for trial.” Id. at 324 (citation and internal quotation marks omitted).
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.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). The court must construe the evidence and all
reasonable inferences arising from it in the light most favorable to the non-moving
party. Id. However, “mere conclusions and unsupported factual allegations are
legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432
F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mountain Park, Ltd. v.
Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)).
II. FACTUAL BACKGROUND
UAB admitted Rollins to the SOD in the fall of 2011 and dismissed him
before his second year for academic reasons. Doc. 50-1 at 22. The dispute in this
case hinges, in part, on the SOD’s practice of allowing students who fail a course a
chance to remediate and hopefully obtain a passing grade. According to Rollins,
the SOD’s policies provide for remediation as an automatic right for all courses –
a contention that the SOD disputes.
The Academic Guidelines, Academic Performance Committee,
and Faculty Council
The Academic Guidelines (the “Guidelines”) provide two mechanisms for a
student to challenge a grade, and, if necessary, their proposed dismissal from the
SOD. To appeal a grade,2 a student must (1) attempt to resolve the disagreement
with the course director, (2) file a written appeal to the chair of the department,
and, if denied, (3) submit a final appeal to the Associate Dean. Doc. 50-2 at 3. A
student must base an appeal on one of the following grounds:
1. The grading was not in accordance with the published course
grading policy; 2. Inconsistencies were made in the application of
evaluation standards among students; 3. A procedural error occurred
in establishing the grade (i.e. mathematical error); 4. The grading was
arbitrary or capricious; or 5. The grading was affected by
considerations of basis of race, disability, gender, ethnicity, or
The SOD utilizes a separate process to address overall academic
performance issues. In pertinent part, the Guidelines state:
The SOD uses the following grading scale: “A” (mastery of course), “B” (strong performance),
“C” (acceptable performance), and “F” (unacceptable performance, poor understanding, and lack
or competency). Doc. 50-2 at 1, 4. Students may also earn “I” (a temporary grade assigned at the
course director’s discretion under extraordinary circumstances), “G” (exemption), and “P” (pass).
Id. at 4, 5.
The Academic Performance Committee [APC]3 is charged with
monitoring and assessing the academic status of students in the DMD
program. The Associate Dean of Academic Affairs (Associate Dean)
serves as the Chair of the APC . . . . The APC will review grades and
other material pertinent to student progress and evaluate the
information as it relates to established school policy. Based on this
information, the APC will make recommendations to the Associate
Dean regarding promotion, probationary status, repetition,
remediation, and dismissal. The final decision of academic status
rests with the Associate Dean. . . . [A]cademic decisions will be
governed by the version of the Academic Guidelines in place at the
time of the decision.
It should be noted that the APC reviews materials, in addition to
grades, when determining promotion recommendations for students.
Grades, professionalism including ethics, academic interactions,
performance on the National Dental Board Examination, among other
relevant indicators are considered in the evaluation process.
Students with satisfactory professional conduct, no standing course
failure, and a yearly and cumulative grade point average  of 2.0 or
greater may be recommended for promotion to the succeeding term . .
A recommendation for repetition of the academic year will be made if
the APC determines that a student has the potential to complete the
DMD program, but has not met the criteria to justify promotion to the
next class level . . . .
A recommendation for academic dismissal may be made if sufficient
evidence exists to indicate that a student will not be able to correct
During the relevant period in this case, the members of the APC included Drs. Ken Tilashalski
(chair), Walter Bell, Augusto Robles, John Coke, Maureen Pezzementi, Paul Eleazer, Merrie
Ramp (Rollins’ advisor), and Sonya Mitchell. Doc. 53-8 at 1.
past academic deficiencies within a reasonable time. Once a student
has been dismissed for academic reasons or ethics violations, future
readmission to the SOD will not be considered.
[Any failing grade] may justify the APC’s recommendation for
repetition or dismissal. . . .
Doc. 50-2 at 1–2. Basically, if a student receives a failing grade, “the APC will
make recommendations to the Associate Dean as to whether to allow remediation
of the failed course o[r] if more severe academic action is justified (repetition or
dismissal).” Id. at 4. While “[a]ny failing course grade must be remediated,”
however, “[s]ome courses, [such as the large preclinical/clinical courses and most
basic science courses], may not offer remediation, as determined by the course
director and Associate Dean.” Id. at 5. Instead, students failing a basic science
course may be offered an optional comprehensive examination in lieu of
remediation “since the systems courses build on previously presented material.”
Doc. 51-9 at 6; see also doc. 50-2 at 5. Alternatively, “if no remediation is offered,
the APC may allow a student to remediate a course while repeating the year.” Doc.
50-2 at 5. The “APC and Associate Dean may consider other methods of
remediation as well.” Id. Finally, the APC may also recommend the dismissal of a
SOD students can appeal the APC’s recommendation to the Faculty
Council,4 which “[f]unction[s] as the executive committee of the faculty and as the
advisory board to the Dean on . . . matters pertaining to academic and
administrative policies.” Doc. 52-12 at 8; see also doc. 50-2 at 3. “If a student
believes there is reasonable cause to request an appeal,” the student must submit
the request in writing “along with a rationale . . . for the request.” Doc. 50-2 at 3.
In accordance with the Guidelines, the Faculty Council will conduct a hearing at
which the Associate Dean presents the “rationale for the recommendations and
decision relating to the student’s academic status” and the student presents her
rationale in support of a reversal of the decision. Id. The Faculty Council’s
majority vote in support of the Associate Dean’s decision “will end the appeal
process at the SOD level.” Id. at 4. However, a majority vote in favor of the
student “will be followed by discussion and recommendations by the Council to
the Dean of the SOD” and the Dean “may implement or modify the Faculty
Council’s recommendation.” Id.
Rollins’ Academic Performance
During the fall semester, Rollins earned two “A”s (Dentistry and Culture,
During the relevant period, the Faculty Council consisted of Drs. John Ruby (Chair), Peter
Waite, Dan Givan, Sonya Mitchell, K. David Stillwell, Patrick Louis (Professor in the
Department of Oral and Maxillofacial Surgery and course director for Dental Anesthesia), and
Laura Cotlin. Docs. 52-12 at 8; 51-3 at 3.
and Evidence-Based Dentistry), seven “B”s (Fundamentals I and II, Ethics in
Dentistry, Dental Radiology, Oral Microbiology/Immunology, Entry Level
Clinical Skills, and Dental Anatomy), and two pass grades (Communications and
Cultural Competency). Doc. 52-16 at 7. Rollins finished the semester with a 3.17
GPA and ranked 51 out of 56 in his first year class. Id.; doc. 53-4 at 2. The spring
semester proved more challenging, with Rollins earning four “B”s (Case Based
Education, Medical Emergencies, Periodontology, and PCD: Operative), three
“C”s (Gross Anatomy, Neuroanatomy, and Cardiovascular and Renal Systems),
one pass (High Stakes Assessments), and one “F” (Dental Anesthesia). Doc. 53-26
at 3. Rollins finished the semester with a GPA of 2.34, a cumulative GPA of 2.72,
and a class rank of 54 out of 56. Id.; doc. 53-26 at 3.
Gross Anatomy and Dental Anesthesia caused Rollins particular difficulty.
In Gross Anatomy, a basic science course in which the SOD “instituted a ‘retest’”
or competency examination for students who failed “within a certain grade range,”
doc. 51-9 at 6, Rollins failed all the graded assessments and finished the course
with a average of 53.3%, doc. 53-3 at 5; 53-26 at 3. Although the syllabus stated
that only “[s]tudents who earn a grade of 60-69 . . . will be allowed to take a
competency exam . . . ,” doc. 56-34 at 1, Dr. Steven Zehren, the course director,
made an exception for Rollins because “a precedent had been set in 2009,” when
seven students with averages below 60% were allowed to take the examination,
and he “thought there would be little or no opportunity for [Rollins] to make up
the course that summer,” doc. 56-35 at 7; see also docs. 52-23 at 8; 50-4 at 3.
Rollins scored 80% on the comprehensive competency exam, which raised his
final grade to a “C.” Doc. 50-5 at 58.
In Dental Anesthesia, Rollins failed both examinations, and finished the
course with a weighted grade of 67.46%.5 Docs. 51-3 at 9, 69; 53-35. Because Dr.
Louis followed a practice of scaling a grade of 69.1 or higher to a “C,” Rollins
failed the class by approximately 1.64 points. Doc. 51-3 at 14, 44. To make
matters worse for Rollins, in non-basic science classes like Dental Anesthesia, the
SOD contends that remediation “is not a prerogative” and “is a determination by
the associate dean of academic affairs after consultation with the APC.” Doc. 51-9
On June 8, 2012, three months after the final examination, Dr. Louis
reported Rollins’ final grade to Dr. Tilashalski and posted the grades. Docs. 53-15
at 8.Thereafter, Rollins met with Drs. Louis and Tilashalski to discuss his grade
Rollins maintains that “[t]here are six different numbers [ranging from 67.24 to 68] which
purport to reflect [his] final numerical grade in [Dental Anesthesia].” Doc. 55-1 at 3. Regardless
of which number the court uses, Rollins still fell below the 69.1 cut-off Dr. Louis used for a
and academic status, attributed his failing grade to his decision to get engaged
during the semester, and asked about remediation. Docs. 51-10 at 3, 6–7; 50-6 at
71. Consistent with SOD policy, Dr. Tilashalski informed Rollins “when the APC
[was] going to meet,” “what [the] potential consequences could be as a result of
that meeting,” and “the appeal process both for the grade and for any potential
academic status.” Doc. 50-6 at 71; see also doc. 51-10 at 5.
Academic Performance of Alleged Comparators
Rollins identifies two classmates, who also experienced difficulties in the
spring semester, as comparators. The Comparators failed Cardiovascular and
Renal Systems, and also failed the comprehensive competency exam offered as
remediation. Doc. 53-8 at 1. Comparator Two, a white female, whose other grades
included three “B”s (Case-Based Education, Medical Emergencies, and PCD:
Operative), four “C”s (Dental Anesthesia, Gross Anatomy, Periodontology, and
Neuroanatomy), and one pass (High Stakes Assessments), finished with a 2.10
semester GPA, a 2.55 cumulative GPA, and a class rank of 55 out of 56. Docs. 5212 at 21; 53-1 at 2. Comparator One, an African American female, finished the
semester ranked last in the D1 class, and her other grades consisted of a “B”
(PCD: Operative), six “C”s (Case-Based Education, Dental Anesthesia, Medical
Emergencies, Periodontology, Gross Anatomy, and Neuroanatomy), and one pass
(High Stakes Assessments), for a semester GPA of 1.95, and a cumulative GPA of
2.38. Docs. 52-13 at 16; 53-1 at 2. In other words, at the end of the first year, the
students at the bottom of the class were Rollins (#54), Comparator Two (#55), and
Comparator One (#56).
The APC’s Review of Rollins, and Comparators One and Two’s
Rollins and Comparators One and Two’s performances prompted the APC
to review their academic standing. Ultimately, the APC voted to dismiss Rollins
and Comparator One, and to allow Comparator Two to repeat the D1 year. Doc.
53-8 at 1–2. Prior to the vote, Dr. Tilashalski, in his capacity as chair, provided the
committee with preliminary data that outlined details about the three students’
academic performance. Doc. 52-23 at 2, 5. Dr. Tilashalski indicated that Rollins
failed Cardiovascular and Renal Systems,6 Dental Anesthesia (adding that he
could not “recall the last time that a student has failed this course (if ever)”), and
Gross Anatomy with a 53.3% average (but noted that Rollins “successfully passed
the retest,” which the instructor allowed Rollins to take even though the syllabus
Rollins actually passed the class with a 72%. Dr. Tilashalski later explained that the information
regarding Rollins failing Cardiovascular and Renal Systems “was an interim e-mail in the
process, and information that was given to the APC in the discussion during the [APC] meeting
certainly did not have that brought out.” Doc. 50-3 at 16; see also doc. 52-23 at 7. Dr. Tilashalski
corrected the error before the APC meeting. Doc. 53-1 at 1.
“indicate[d] that a retest will only be offered to students that have final course
grades between 60-69%”). Id. at 1–2, 5–6. Dr. Tilashalski subsequently provided
the APC updated information that reported Rollins’ final grades as: 67.5% in
Dental Anesthesia, 53.3% in Gross Anatomy (ultimately, 80% after the
comprehensive examination), “B” in Fundamentals I (although he pointed out that
Rollins failed the first two examinations even though Rollins took the same course
previously while pursuing a master’s degree), 72% in Cardiovascular and Renal
Systems, and “B” in Medical Emergencies (although he reported that Rollins
failed the final examination and earned a “B” primarily because of a group
project). Doc. 53-1 at 2. When the APC convened on June 20, 2012, doc. 56-8 at
1, after the committee members reviewed and discussed Rollins’ academic
performance, four members voted in favor of dismissal and two voted for
repetition, doc. 50-3 at 44–45. Dr. Ramp, Rollins’ advisor, abstained. Id.
Dr. Tilashalski informed Rollins the following day of the APC’s decision
and relayed the options for an appeal. Docs. 50-5 at 65; 52-7 at 10. As a result,
Rollins devised a two-prong attack that consisted of appealing both the APC
decision and his Dental Anesthesia grade. Consequently, a few days later, Rollins
notified Dr. Louis of his intent to appeal his grade in Dental Anesthesia. Doc. 53-
22 at 5. Because Rollins had completed step one7 when he met with Dr. Louis
shortly before the June 8 posting of grades, see doc. 51-10 at 6–8, 16, Rollins
proceeded to step two8 and filed a written appeal with Dr. Waite9 , in which he
alleged that “[i]nconsistencies were made in application of evaluation standards
among students,” and that “the grading was arbitrary,” doc. 53-22 at 5. In support
of his appeal, Rollins presented a paper entitled “Clinical Complications of Dental
Anesthesia,” doc. 50-1 at 29, presumably to demonstrate his competency in the
subject matter.10 On June 30, 2012, Dr. Waite denied Rollins’ grade appeal. Doc.
51-10 at 3. Rollins did not advance his appeal to step three.11 Docs. 50-3 at 36; 505 at 79–80.
Rollins separately challenged the APC’s decision to dismiss him by filing
an appeal to the Faculty Council on June 28, which he amended on July 3. Docs.
The first step of the grade appeal process is for a student who wishes to challenge a grade to
attempt to resolve the issue with the course director. Doc. 50-2 at 3.
The second step of the grade appeal process is for the aggrieved student to submit a written
appeal to the chair of the department. Doc. 50-2 at 3.
Rollins also filed another appeal with Dr. Louis. Doc. 53-22 at 5. Dr. Louis previously denied
Rollins’ appeal on June 11, doc. 51-10 at 16, and also denied Rollins’ second appeal, doc. 53-22
Rollins submitted the paper hoping that it “could salvage the 2.5 points necessary to pass the
course before grades [were] due at week’s end.” Doc. 51-10 at 8. Rollins also volunteered to help
Dr. Louis with continuing education classes. Id.
The third and final step of the grade appeal process for a student to make an appeal to the
associate dean. Doc. 50-2 at 3.
53-23; 53-24 at 1; 50-1 at 28; 60-61; 51-1 at 60; 52-7 at 1–9. When the Faculty
Council met on July 3 to discuss Rollins’ appeal, Dr. Tilashalski comprehensively
summarized Rollins’ academic record by noting Rollins’ grades and the specific
circumstances that led to a passing grade in some classes. Doc. 53-25 at 1. Dr.
Tilashalski also pointed out that although Rollins earned a “B” in Fundamentals I,
Rollins failed the first two examinations even though Rollins took the same course
while pursuing his master’s degree in oral biology. Docs. 53-25 at 1; 56-39 at 25–
27. Next, regarding Gross Anatomy, Dr. Tilashalski reported:
Gross Anatomy was really the disturbing thing. Got a 53.3 percent
course average. Failed every single assessment in the class . . . . His
performance went down towards the end of the course. His last lab
exam was 42 percent, his last written exam was 44 percent. [Rollins]
attended all of the labs and extra help sessions. I mean, this is a
student that is going. I mean, we can’t say he didn’t do well because
he wasn’t trying, he was there. [Rollins] expresses genuine interest in
anatomy and said he wanted to do well in the course. He told me
during my initial talk with him after his poor performance on the first
quiz. And then it went down, it didn’t get better. Which was really a
question whether he could do it. Steve [Zehren] allowed [Rollins] to
take the retest even though he didn’t qualify for it. [Zehren’s] syllabus
says quite clearly, to qualify for the retest you have to get between a
60-6. So he really should have failed gross anatomy, he shouldn’t
have been qualified for the retest. He did pass the retest with an 80
percent, but never should have been allowed to take it. Should have
been a straight failure with those numbers. Now the retest was meant
for somebody that had a bad day. Oh, I just barely failed a course
because, you know, I did have a bad day or, you know, I struggled a
little bit. It is not I struggle[d] on every single assessment. You know,
a 42 percent, boy! And so while he passed gross anatomy, we really
look at this as really poor performance.
Doc. 56-39 at 26. In summary, Dr. Tilashalski informed the Faculty Council that
Rollins “failed [Dental] Anesthesia, should have failed gross anatomy, and came
in and was – performed poorly on a course he already had the previous year.”
Doc. 56-39 at 28. According to Dr. Tilashalski, the APC “looked at that [record]
as somebody that . . . we are not sure can make it through.” Id. Dr. Louis, who was
a member of the Faculty Council, added after Dr. Tilashalski’s presentation that he
“curved the grades [in Dental Anesthesia], . . . and [Rollins] still didn’t meet the
criteria [and] wasn’t on the borderline.” Doc. 56-39 at 35–36; see also doc. 56-50
at 1. Ultimately, after discussing Rollins’ appeal, the Faculty Council voted
unanimously to affirm the APC’s decision to dismiss Rollins.12 Doc. 52-9 at 16–
The parties have filed cross motions for summary judgment. In a nutshell,
Rollins alleges that he is due summary judgment because Defendants violated his
equal protection and due process rights by failing to follow the Guidelines and the
course syllabus when they denied his request for remediation in Dental
The Faculty Council also voted unanimously to uphold the decision to allow Comparator Two
to repeat her D1 year and an overwhelming majority voted to affirm the decision to dismiss
Comparator One, with one abstention. Doc. 52-9 at 16–18.
Anesthesia, and that UAB violated his rights under Titles VI and IX by treating
him less favorably than Comparators One and Two. Doc. 20. Defendants raise
multiple arguments in favor of their motions, including that they are immune
under the Alabama and United States Constitutions to Rollins’ claims arising from
alleged due process and equal protection rights violations. This opinion is divided
into three parts. First, the court will analyze the immunity defenses in Section A.
Second, the court will analyze the contentions regarding the substantive and
procedural due process claims in Section B. Finally, the court will analyze the
equal protection and Titles VI and IX claims in Section C.
In Counts I and II, Rollins asserts equal protection and due process claims
for alleged violations of the United States and Alabama Constitutions. Defendants
contend that they are entitled to immunity under the Eleventh Amendment and
Alabama Constitution. As to the alleged violations of the United States
Constitution, which Rollins is bringing pursuant to 42 U.S.C. § 1983, because “an
unconsenting state is immune from lawsuits brought in federal court by the state’s
own citizens,” Carr v. City of Florence, Ala., 916 F.2d 1521, 1524 (11th Cir.
1990) (citing Hans v. Louisiana, 134 U.S. 1 (1980)), UAB is immune from § 1983
liability as an instrumentality of the state, see Harden v. Adams, 760 F.2d 1158,
1164 (11th Cir. 1985) (citation omitted); Cox v. Bd. of Trs. of Univ. of Ala., 161
Ala. 639, 648 (Ala. 1909). Likewise, UAB is immune under the Alabama
Constitution, which states, in relevant part, that the “State of Alabama shall never
be made a defendant in any court of law or equity.” Ala. Const. Art. I, § 14;
Hutchinson v. Bd. of Trs. of Univ. of Ala., 256 So. 2d 281, 283 (Ala. 1971). The
Alabama Supreme Court has described this immunity as “almost invincible,” Ala.
State Docks v. Saxon, 631 So. 2d 943, 946 (Ala. 1994), and one that bars “almost
every conceivable type of case,” Hutchinson, 256 So. 2d at 282. Therefore,
summary judgment is due to be granted as to Rollins’ claims against UAB for
alleged violations of the Alabama and United States Constitutions. However,
Rollins is also pursuing a claim for injunctive relief against UAB. Moreover, he is
only pursuing a claim against Dr. Reddy in Dr. Reddy’s official capacity for
prospective declaratory and injunctive relief, doc. 61 at 16 n.6, and, as such, Dr.
Reddy is not entitled to Eleventh Amendment immunity in his official capacity for
the alleged violations of the United States Constitution, see Verizon Md., Inc. v.
Pub. Serv. Comm’n of Md., 535 U.S 635, 645–46 (2002) (citations omitted), or
immunity under the Alabama Constitution, see Haley v. Barbour Cnty., 885 So. 2d
783, 788 (Ala. 2004) (instructing that an action against a state official is only
against the state if it seeks monetary relief) (citations omitted). Consequently, the
court will address the merits of the due process and equal protection claims against
Due Process claims under the Fourteenth Amendment
The court turns now to Defendants’ substantive arguments as to Counts I
and II. As an initial matter, the court notes that, based on Hamil v. Vertress, No.
Civ.A.98-D-508-N, 2001 WL 135716 at *7 (M.D. Ala. Jan. 10, 2001), Dr. Reddy
contends that Rollins cannot establish that he has a constitutionally-protected right
to continued enrollment at UAB. The court will assume for this opinion that
Rollins has such an interest because “no tenet of constitutional law is more clearly
established than the rule that a property interest in continued enrollment in a state
school is an important entitlement protected by the Due Process Clause of the
Fourteenth Amendment.” Barnes v. Zaccari, 669 F.3d 1295, 1305 (11th Cir. 2012)
(citation omitted); see also Bd. of Curators of the Univ. of Mo. v. Horowitz, 435
U.S. 78, 84–85 (1978).
1. Procedural Due Process
Generally, “‘[t]he very nature of due process negates any concept of
inflexible procedures universally applicable to every imaginable situation.’”
Horowitz, 435 U.S. at 86 (quoting Cafeteria Workers v. McElroy, 367 U.S. 886,
895 (1961)). This “need for flexibility is well illustrated by the significant
difference between the failure of a student to meet academic standards and the
violation by a student of valid rules of conduct. This difference calls for far less
stringent procedural requirements in the case of an academic dismissal.” Id. As
such, “[a]cademic evaluations of a student, in contrast to disciplinary
determinations, bear little resemblance to the judicial and administrative factfinding proceedings to which we have traditionally attached a full-hearing
requirement.” Id. at 89. “Like the decision of an individual professor as to the
proper grade for a student in his course, the 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.” Id. at 90. Therefore, although the decisionmaking
process must be “careful and deliberate,” id. at 85–87, “[f]ormal hearings are not
required in academic dismissals,” Haberle v. Univ. of Ala. at Birmingham, 803
F.2d 1536, 1539 (11th Cir. 1986).
With these general principles in mind, the court turns now to Rollins’ claims
of alleged procedural due process violations.
Alleged violation of APC meeting attendance policy
The first alleged procedural flaw is based on Dr. Louis’ failure to attend the
APC meeting or submit a letter in his absence. Rollins’ contention is based on the
following testimony from Dr. Mitchell:
My understanding of how the [APC] runs is that [Dr. Louis] would
need to make some sort of written communication to Dr. Tilashalski
and the APC, because he may have been out of town. . . . The other
thing would be, if a letter was not given, I would imagine that [Dr.
Louis] would have had a conversation with Dr. Tilashalski regarding
it; but then still, typically some sort of written letter ensues after that,
even if it may not have been ready, maybe, for the APC.
Doc. 56-30 at 8. Unfortunately, the Guidelines do not support Dr. Mitchell’s
testimony. See doc. 50-2 at 1–5. Dr. Mitchell is referring instead to Dr.
Tilashalski’s standard practice of inviting instructors to attend the APC meetings,
“especially if somebody has a student with a failing score.” Doc. 50-3 at 44. This
practice does not help Rollins, however, because the instructors have no obligation
to attend. Id. Because SOD Guidelines and Dr. Tilashalski did not require Dr.
Louis to appear in person or to submit a written report, Rollins has failed to
establish a procedural due process violation related to Dr. Louis’ absence from the
Alleged false information to the APC
Rollins asserts next that Dr. Tilashalski provided inaccurate and damaging
documents concerning his academic performance to the APC. First, Rollins
contends that Dr. Tilashalski provided the APC a misleading initial impression by
only giving it a partial list of grades that failed to include the classes in which
Rollins earned a “B.” See doc. 52-23 at 2. This contention is unavailing because
when Dr. Tilashalski emailed the APC a spreadsheet of Rollins’ grades on June 7,
he explained that it was “incomplete at this time as grades aren’t due until Friday,
June 15,” and that there was “[m]ore to come when all grades are in.” Id. at 1
(emphasis added). The initial spreadsheet indeed did not include courses in which
Rollins earned a “B” and indicated only that Rollins’ spring semester grades were
one “F,” three “C”s, and one passing grade. Id. at 2. However, the next day, Dr.
Tilashalski sent the APC an “updated spreadsheet . . . [with] some ‘holes’ as
grades are not due until next Friday,” but which included the “B” Rollins earned in
Medical Emergencies. Id. at 5–7. Based on this evidence, it is clear that Dr.
Tilashalski violated no SOD procedures and that his initial report did not prejudice
Rollins because Dr. Tilashalski informed the APC that the spreadsheet was
incomplete, frequently updated it and, ultimately, presented a chart to the APC that
accurately displayed Rollins’ grades in their entirety. Doc. 56-19 at 1. While
Rollins obviously would have preferred for Dr. Tilashalski to only present the
completed transcript, there is nothing here to establish that Dr. Tilashalski acted
imprudently or that he violated Rollins’ constitutional rights.
Second, Rollins contends that Dr. Tilashalski erroneously informed the APC
that Rollins failed Cardiovascular and Renal Systems.13 However, Rollins ignores
that the same email contained a spreadsheet that accurately listed his grade as 72%
or “C.” Doc. 52-23 at 7. Moreover, the minutes from the APC meeting correctly
represented the Cardiovascular and Renal Systems grade. Doc. 56-8 at 2. In other
words, the APC reached a decision based on the correct information.
Finally, focusing solely on one portion of Dr. Tilashalski’s correspondence,
Rollins contends that Dr. Tilashalski informed the APC incorrectly that Rollins
failed Gross Anatomy and failed to qualify for the Gross Anatomy retest which the
instructor did in fact allow Rollins to take. The full text of Dr. Tilashalski’s email
stated that Rollins
[f]ailed Gross Anatomy with a 53.3% average but successfully passed
the retest. The course syllabus in Gross Anatomy indicates that a
retest will only be offered to students that have final course grades
between 60-69%. I have emailed the course director for clarification
of why Lee was even offered the retest; it seems like he should have
failed Gross Anatomy as well.
Doc. 52-23 at 5. Thereafter, Dr. Tilashalski shared that Dr. Zehren offered the
retest to Rollins “because a precedent was set in 2009,” when seven students with
final averages below 60% were allowed to take the competency examination, and
he “thought there would be little or no opportunity for Lee Rollins to make-up
The email stated: “After the fall term (and prior to the failure in [Cardiovascular and Renal
Systems]), Lee [ranked] 51–56 students.” Doc. 52-23 at 5.
gross anatomy th[at] summer . . .” Id. Significantly, the minutes from the APC
meeting reflected this same information. Doc. 56-8 at 2. Therefore, Rollins has
failed to show that Dr. Tilashalski violated his rights by providing false
information to the APC.
Alleged false information to the Faculty Council
Rollins contends next that Dr. Tilashalski failed to follow a careful and
deliberate standard during the Faculty Council proceedings. As his first example,
Rollins claims that Dr. Tilashalski reported that Rollins failed Gross Anatomy, but
did not provide information about Dr. Zehren’s rationale for allowing Rollins to
take the competency test. This contention is unavailing because Dr. Tilashalski
included the email from Dr. Zehren in the packet of materials he distributed to the
Faculty Council. See doc. 53-35 at 1. In fact, Dr. Ramp referenced the email when
she advocated for Rollins’ retention: “The email that Lee referred to from Doctor
Ze[hren], you have a copy of it in your packet, if gross anatomy is of concern in
review, which is one of the two courses that I believe have been brought to your
attention.” Doc. 56-41 at 4; see also docs. 56-8 at 2; 53-3 at 4. Put simply, the
record belies Rollins’ contention.
To the extent that Rollins takes issue also with Dr. Tilashalski’s position
that Dr. Zehren should not have allowed Rollins to take the retest,14 this contention
also fails because the Guidelines permitted Dr. Tilashalski to present his
viewpoint. See doc. 50-2 at 4 (explaining that the Faculty Council “shall meet . . .
where discussion shall take place . . . .”). In fact, as chair of the APC, the
Guidelines charged Dr. Tilashalski with presenting “the rationale for the
recommendations and decision [from the APC] relating to the student’s academic
status.” Id. at 3. Moreover, it is clear from the minutes that Rollins’ performance
in Gross Anatomy factored into the APC’s decision:
[Rollins] also earned “C” in Gross Anatomy (initially failed the class
with a 53.3% having failed all 8 assessments in the course.
According to Dr. Zehren, the course director, Lee’s performance went
down toward the end of the course, as his last lab exam was a 42%
and his last written exam was a 44%. Lee did attend all of the labs
and extra help sessions, and indicated to the course director that he
wanted to do well in the course during an initial talk after his poor
performance on the first quiz. Dr. Zehren allowed him to take the
comprehensive competency exam even though his overall mean
average fell below the cut-off point of 60%, Lee passed the exam with
According to Dr. Tilashalski,
Steven Ze[hren] allowed [Rollins] to take the retest even though he didn’t qualify
for it. His syllabus says quite clearly, to qualify for the retest you have to get
between a 60 and 65. So he really should have failed gross anatomy, he shouldn’t
have been qualified for the retest. He did pass the retest with an 80 percent, but
never should have been allowed to take it. Should have been a straight failure with
Doc. 56-39 at 26.
Doc. 56-8 at 2; see also doc. 50-2 at 3. To that end, Dr. Tilashalski also reported to
the Faculty Council that Rollins “got some Bs,” failed Dental Anesthesia and
received the “only F in the course,” scored 65% on the final examination in
Medical Emergency “but ended up with a B because of a class project,” and that
all of these factors indicate “really poor performance.” Doc. 56-39 at 25–26. Based
on the evidence, it is evident that Dr. Tilashalski focused on Rollins’ academic
performance as an indicator of Rollins’ ability to withstand the rigors of the SOD
curriculum. Therefore, the Faculty Council’s evaluation of Rollins was not
As his second example of an alleged procedural flaw at the Faculty Council
meeting, Rollins points to Dr. Tilashalski’s comment that he suspected that
someone else drafted Rollins’ appeal and that Rollins plagiarized the paper he
wrote in support of his grade appeal in Dental Anesthesia. The relevant exchange
is as follows:
Dr. Waite: I think someone else is writing [t]he appeal here.
Dr. Tilashalski: Oh, I am sure.
Dr. Waite: This is a very well written appeal.
Doc. 56-39 at 28. Regarding the Dental Anesthesia paper, Dr. Tilashalski
commented that a possibility existed that Rollins plagiarized the paper based on a
score of 33 on the plagiarism detection software:
[a] high percentage would probably be anything over 25 percent. So
you know, we are in the high percentage. If you – Turnitin actually
highlights the places they thought were other text. And if you look at
the page two, I mean there is a lot of things, some of these that didn’t
pick up, you know there is a word stitch here or there, so there is a
dash in the original text that didn’t pick it up, but it was really the
whole sentence. You look at page three, basically a whole paragraph,
page four, tons. I mean, I would look at this, if a student turned this
into me I would put him up for ethics charges for plagiarism.
Id. at 30–31. Because Drs. Waite and Tilashalski had observed first hand Rollins’
academic abilities, the court declines to question their professional evaluation of
the contents and format of Rollins’ appeal. See Horowitz, 435 U.S. at 90.
Likewise, the court is confounded by Rollins’ apparent belief that it is acceptable
to submit an academic paper to prove his proficiency in a subject he failed, and yet
contend that it is unreasonable to subject the paper to scrutiny. The court rejects
Rollins’ contention because Dr. Tilashalski raised an important issue regarding
Rollins’ integrity and presented objective data to support his supposition. The
discussion was particularly pertinent because another member of the Faculty
Council, Dr. Waite, expressed additional concern because Rollins was unable to
answer questions about the substance of the paper. Doc. 56-41 at 13–14, 28.
Ultimately, because the Faculty Council questioned Rollins about the paper at the
meeting it convened to address Rollins’ appeal and were in the best position to
assess Rollins’ credibility, the court finds no reason to question Dr. Tilashalski’s
or the Faculty Council’s academic judgment.15 See Haberle, 803 F.2d at 1539.
After all, “[c]ourts are particularly ill-equipped to evaluate academic
performance.” Horowitz, 435 U.S. at 956.
Alleged improper consideration of pre-SOD grades
Rollins asserts also that the APC improperly presented to the Faculty
Council his pre-SOD grades. See doc. 56-41 at 17–22. Under the Guidelines, the
APC had the authority to “review grades and other materials pertinent to school
progress and evaluate the information as it relates to established school policy,”
and review “material, in addition to grades, when determining promotion
recommendations for students.” Doc. 50-2 at 1 (emphasis added). Consistent with
the Guidelines, reviewing prior academic history aids a committee in assessing a
student’s overall ability to succeed in a program, and qualifies as “other
materials.” Id. Additionally, because the Faculty Council’s “charge is to see if
there was any violation or if there was anything that would make [the Faculty
Council] think that [the APC decision] was not an appropriate thing to do,” doc.
Rollins apparently believes that the SOD should have referred the plagiarism concern to the
ethics council instead. See doc. 51-1 at 16. As Dr. Ruby explained, there was no need for such a
step because the Faculty Council only considered the paper as part of their review of the APC’s
decision, the paper was not authorized for remediation, “wouldn’t be a document that would be
used to determine whether there would be remediation,” and would not result in a grade on
Rollins’ transcript. Id. at 51-1 at 60–61; doc. 56-39 at 28–30.
56-41 at 38, to conduct an independent review, at a minimum, the Faculty Council
must review the same materials as the APC. Moreover, and significantly, the APC
and Faculty Council had a particular interest in Rollins’ graduate school
performance in Fundamentals I because Rollins repeated the course in dental
school and still failed the first two exams. This is relevant information pertaining
to Rollins’ academic performance that the Faculty Council had the authority to
review, and, as such, Defendants did not infringe on Rollins’ constitutional rights.
Alleged withholding of information
Rollins asserts next that the Faculty Council withheld favorable information
submitted by Dr. Ramp regarding her belief about Rollins’ readiness to progress to
the second year. See doc. 61 at 8–9. This contention is belied by the evidence
showing that Dr. Ramp testified on Rollins’ behalf at the Faculty Council meeting.
Among other things, Dr. Ramp advocated for Rollins’ retention because of
Rollins’ first semester performance, and described Rollins as a determined and
persistent self-starter, someone who seeks and takes advice, and possessing an
ideal character. Doc. 56-41 at 5-7. Put simply, contrary to Rollins’ contention, the
Faculty Council received Dr. Ramp’s endorsement of Rollins’ abilities first hand.
Alleged deprivation of right to exhaust grade appeal
Rollins also contends that the APC recommended his dismissal before he
completed his grade appeal. In actuality, Rollins waited until after the APC
recommended his dismissal to advance to step two of his grade appeal. Docs. 5322 at 16; 51-10 at 2–9. Rollins initiated step one earlier beginning on June 4 when
he met with Dr. Louis about his grade, doc. 51-10 at 6–8, and received Dr. Louis’
answer on June 11, id. at 16 (Dr. Louis’ email that he “must follow the
remediation guidelines” and that “the F will have to remain on [Rollins’]
transcript”). Despite Dr. Louis’ answer, Rollins waited until the APC’s decision on
June 27 to initiate step two of his grade appeal.16 Docs. 53-22 at 16; 51-10 at 2–9.
Significantly, Rollins chose to forgo exhausting his grade appeal by failing to
initiate step three. Instead, Rollins filed an appeal to the Faculty Council on June
28 challenging the APC’s recommendation of his dismissal,17 doc. 53-23, which is
a separate and independent procedure from the grade appeal. See doc. 50-2 at 3–4
(describing distinct processes for grade appeal and academic status appeal). To the
extent Rollins is contending that the APC should have waited to convene until
after he had exhausted his grade appeal, this contention misses the mark because
the APC is a separate process that does not preclude a grade appeal. In short,
Rollins filed a second appeal with Dr. Louis on June 27 even though he had already initiated
step one earlier in the month. Doc. 51-10 at 6–8. Dr. Louis denied Rollins’ second appeal. Doc.
53-22 at 16.
The Faculty Council met after the deadline had expired for Rollins to file step three of his
Rollins’ grade appeal stands alone and his failure to complete it does not cast
doubt on the APC’s decision.
Alleged arbitrary denial of the opportunity to remediate
Finally, Rollins contends that Defendants arbitrarily denied him the
opportunity to remediate Dental Anesthesia, as purportedly required by the
Guidelines and Dental Anesthesia syllabus. Docs. 50-2 at 5; 53-4 at 5. Relevant
here, the Guidelines state that “the APC will make recommendations to the
Associate Dean regarding promotion, probationary status, repetition, remediation,
and dismissal,” that “[t]he final decision of academic status rests with the
Associate Dean,” and that one of the conditions that “may justify the APC’s
recommendation for . . . dismissal” is “[a]ny failing grade.” Doc. 50-2 at 1, 2. As
such, when read as a whole, the plain language of the Guidelines belies Rollins’
assertion that he is guaranteed remediation.
The Dental Anesthesia syllabus also fails to support Rollins’ contention.
Based on the evidence before this court, the syllabus, which states simply, “3.
Remediation Essay Exam on selected topics or oral exam,” doc. 56-15, outlines
the types of remediation allowed if the APC and associate dean approve
remediation. Docs. 51-9 at 6; 51-3 at 13. Unfortunately for Rollins, unlike the
basic science courses, he had no guarantee of remediation in Dental Anesthesia, as
evidenced by Dr. Louis’ statement to Dr. Tilashalski that he “will need approval
[from the APC] before [Rollins] can remediate.” Docs. 53-15 at 8; 51-9 at 6. In
fact, Rollins acknowledged this point in an email to Dr. Louis: “I had a
misunderstanding of remediation. Apparently, there is a different policy for your
course that does in fact differ from the basic science courses with regards to a
‘retake’ examination.” Doc. 51-10 at 16. As Dr. Louis testified, he included the
remediation section on the syllabus “because the students want to know if
remediation was assigned, what might be some options,” doc. 51-3 at 5, and that
Rollins “was not permitted to remediate because he did not meet the criteria for
remediation, and that was he did not–based on my submission of his failing grade
to the APC, they did not recommend remediation,” doc. 51-3 at 13. Absent a
showing by Rollins that Dr. Louis or the APC allowed remediation to a similarly
situated student in a Dental Anesthesia course, he cannot meet his burden of
establishing that he was arbitrarily denied the opportunity to remediate.18
The record shows that only one other student failed a first year Dental Anesthesia course taught
by Dr. Louis, and that student failed due to withdrawing from the SOD. Docs. 53-33 at 2; 51-3 at
11–13. Rollins identified four other students who failed equivalent courses, Pain & Anxiety
Control and Pain & Anxiety Management, taught by Dr. Louis, and were allowed remediation.
See docs. 62 at 17–18; 56-6 at 1–3. However, based on the enrollment dates, these students failed
the courses while in their upperclass years, doc. 56-6 at 2–3, and, unlike Rollins, after
demonstrating during their first year that they had the aptitude to succeed at the SOD. Because
these students failed the equivalent course as upperclass students, they were not similarly situated
to Rollins. As such, there is no evidence in the record to establish that Dr. Louis or the SOD
treated Rollins less favorably than other similarly situated students.
In sum, Dr. Louis, the APC, and the Faculty Council carefully and
deliberately followed the Guidelines when denying Rollins’ grade appeal and
dismissing him from the SOD. Therefore, Defendants did not violate Rollins’
procedural due process rights. Consequently, their motions for summary judgment
on the procedural due process claim are due to be granted, and Rollins’ motion is
due to be denied.
Substantive Due Process
Rollins also raises a substantive due process claim. “[T]he Supreme Court
laid out a very narrow standard of substantive review over academic decisions.”
Haberle, 803 F.2d at 1539 (citing Regents of Univ. of Mich. v. Ewing, 474 U.S.
214 (1985)). The decision to dismiss a student should “rest[ ] on academic
judgment that is not beyond the pale of reasoned academic decision-making when
viewed against the background of [the plaintiff’s] entire career . . . .” Ewing, 474
U.S. at 227–28. Furthermore,
[w]hen judges are asked to review the substance of a genuinely
academic decision, such as this one, they should show great respect
for the faculty’s professional judgment. Plainly, they may not
override it unless it is such a substantial departure from accepted
academic norms as to demonstrate that the person or committee
responsible did not actually exercise professional judgment.
Id. at 225. Courts should refrain from second guessing faculty decisions because
“[i]f a ‘federal court is not the appropriate forum in which to review the multitude
of personnel decisions that are made daily by public agencies,’” id. at 226 (quoting
Bishop v. Wood, 426 U.S. 341, 349 (1976)), “far less is it suited to evaluate the
substance of the multitude of academic decisions that are made daily by faculty
members of public educational institutions – decisions that require ‘an expert
evaluation of cumulative information and [are] not readily adapted to the
procedural tools of judicial or administrative decisionmaking.’” Id. (quoting
Horowitz, 435 U.S. at 89–90). As such, “[u]niversity 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. at 225 n.11.
Alleged inaccurate information by Dr. Louis regarding grade
Rollins takes issue with Dr. Louis’ statement to the Faculty Council that
Rollins failed Dental Anesthesia even though Dr. Louis “curved the grades and
[Rollins] still didn’t meet the criteria, . . . he wasn’t on the borderline.” Doc. 56-39
at 35. There is no constitutional violation, however, because this was an accurate
statement in light of Rollins falling short of the 69.1% score that Dr. Louis used as
a cutoff to curve the grades to a “C.”19 Doc. 51-3 at 14. It seems from the evidence,
In his briefing, Rollins contends that Dr. Louis lied about curving and that Dr. Louis actually
testified that he did not curve the grades. However, the portion of Dr. Louis’ testimony that
however, that Rollins may be challenging instead Dr. Louis’ decision to not utilize
the scaling system he used in 2011 that resulted in all failing grades becoming
“C”s. As Dr. Louis explained, he made the decision after performing a
psychometric analysis that revealed the test was harder for the 2011 class as a
Q: All right. On 2012, you told me you did the psychometric
analysis. Did you also do scaling?
A: Well, I did a–in the psychometric process, I gave–or, excuse me, in
the review of the exam, the actual psychometrics, there were several
questions that had fared poorly. So in the process, there was–you can
see that there were more As than, you know–excuse me, very few As.
So once the psychometrics was done, I did scale the grades because of
the–this exam was harder for the class.
Q: So you did scale the 2011 exam?
Q: All right. By how many points?
A: Well, that’s a good question. I would have to look at it and
answer. . . .
Q: There was a letter grade shift for the students in the bottom?
Rollins cites to support his contention is one in which Dr. Louis discusses the “scaling” process
he used in 2011 that involved psychometric analysis. That Dr. Louis testified he saw no need to
utilize similar psychometric analysis in 2012 because of the overall strength of the class does not
mean that he did not actually curve the 2012 grades.
Q: So all the people who made [ ] Cs had Fs?
Q: Well, what could Lee [Rollins] have had lower than an F?
A: Oh, I’m sorry. In the – which one are we talking?
Q: I’m talking about 2012.
A: Oh, in 2012. Okay. I’m sorry.
Q: I’m sorry if I may not have made it clear. My question was:–you
had told me earlier with regard to 2011 you had done the
psychometric analysis and scaled. And I said is that correct, and you
said yes. I said with regard to 2012, Lee Rollins’ class, did you also
do both the psychometric analysis and scaling?
A: Well, I looked at the exams as far as the distribution of the grades,
particularly with regards to the class as a whole. And after the
evaluation of the class as a whole, including the number of As, Bs, et
cetera, that I did not feel that this – there was no room for scaling.
The best grade here, we have a 98.1. So the actual exam is – or the
actual performance of the class was high, so the – additional scaling
was not warranted.
Doc. 51-3 at 44. While Rollins may perhaps believe that Dr. Louis should have
scaled the 2012 grades as he scaled the 2011 grades, it is clear from Dr. Louis’
testimony that he saw no need to do so because the overall success of the 2012
students proved that, unlike the 2011 class, “the exam was [not] harder for the
class.” Id. Dr. Louis’ failure to scale the grades in 2012 does not violate Rollins’
substantive due process rights because Rollins has no credible basis to contend
that Dr. Louis substantially departed from academic norms, especially where, as
here, Rollins was the only student to fail the course and did not earn the 69.1%
cut-off Dr. Louis used to round a grade to a “C.” Therefore, Rollins has failed to
show the necessary arbitrariness or capriciousness for a constitutional violation.
Alleged violation of Rollins’ rights based on remediation
Rollins asserts that the SOD departed substantially from acceptable
academic norms and acted arbitrarily because of the 54 students who failed an
SOD course during a ten-year period, he was the only one denied remediation.20
Doc. 55 at 2–3, 28. Unfortunately for Rollins, absent the specific facts of each
case, this evidence in itself does not establish a substantial departure from
accepted academic norms. Under the Guidelines, “remediation is not a prerogative
of the course director” in non-basic science classes, and is instead “a
determination by the associate dean of academic affairs after consultation with the
. . . [APC].” Docs. 51-9 at 6; see also doc. 53-15 at 8 (Dr. Louis’ email to the dean
stating “As per our conversation, I will need approval before the student can
Rollins singles out Comparator Three in particular, whom Rollins contends that the SOD
allowed to remediate Growth and Development even though she failed the mid-term and final
examinations. Doc. 55 at 28. The reliance on Comparator Three misses the mark because she was
a second year student and Growth and Development was “the only failing grade that she [had]
received” during her academic career. Doc. 56-55 at 1. The court will not second guess the
SOD’s decision to treat a upperclass student with a proven academic record more favorably than
a first year student. See Ewing, 474 U.S. at 226.
remediate.”). As Rollins himself acknowledged to Dr. Louis, “I had a
misunderstanding of remediation. Apparently, there is a different policy for your
course that does in fact differ from the basic science courses with regards to a
‘retake’ examination.” Doc. 51-10 at 16. In other words, Dr. Louis was simply
following the SOD’s remediation guidelines. Critically, there is no evidence in the
record that Dr. Louis applied the guidelines differently to other students.
Moreover, the failure to offer Rollins remediation does not cast doubt on the fact
that the APC and Faculty Council followed the Guidelines and that Rollins failed
Dental Anesthesia, every graded assessment in Gross Anatomy, and the first two
examinations in Fundamentals I. This record was sufficient to support dismissal
under the Guidelines. See doc. 50-2 at 1–2. Therefore, in the absence of any other
compelling evidence, especially evidence that the other 53 students also had a
similar overall record as him, Rollins has failed to establish the necessary
substantial departure and arbitrariness to sustain his claim.
Alleged arbitrary and capricious decision by Dr. Reddy
Rollins’ next contention is that Dr. Reddy acted arbitrarily and
capriciously when he adopted the dismissal recommendation that the Faculty
Council purportedly based on inaccurate information presented to it by Dr.
Tilashalski. The court previously addressed Rollins’ contentions that Dr.
Tilashalski provided inaccurate information and found them unpersuasive. See
Section III.B.2(b). Furthermore, Dr. Reddy’s decision to accept the Faculty
Council’s recommendation was not a substantial departure from the norm because
the APC and Faculty Council followed the Guidelines, reviewed pertinent
information relevant to Rollins’ academic performance, allowed Rollins to present
further information and witnesses in support of his appeal, and solicited the
opinions of Rollins’ professors and advisor. In short, because the APC and Faculty
Council properly followed the Guidelines, Dr. Reddy’s decision to accept their
recommendation cannot establish a constitutional violation.
Alleged faculty bias
Rollins’ final contention in support of his substantive due process claim is
based on alleged bias against him that purportedly influenced his dismissal.21 As
the first example of bias, Rollins points to Dr. Tilashalski’s report to the Faculty
Council about Rollins’ remedial paper: “Tilashalski told the FC, regarding
Rollins’s paper . . . that perhaps they should say they told him to do the paper, and
fail him on the remediation. That demonstrates clear bias.” Doc. 61 at 24. There
Rollins also asserts that Dr. Tilashalski used a distorted record to “orchestrate a decision from
the APC to terminate Rollins” and provided the same misinformation to the Faculty Council. See
docs. 53-1 at 1; 53-25 at 1. Rollins’ argument is based on the same factual contentions that he
presented in his procedural due process claim that the court found were unsubstantiated by the
record. See Section III.B.2., supra. Those same arguments also fail to support his substantive due
process claims for the reasons previously stated by the court.
are several problems with this contention however–first, the Faculty Council
rejected Dr. Tilashalski’s suggestion; second, Dr. Tilashalski did not have a vote
on the Faculty Council; third, Dr. Tilashalski was not the only person the Faculty
Council heard from; and, finally, in light of evidence that one member of the
Faculty Council read the paper, questioned Rollins about it, and expressed
concerns that Rollins could not answer questions about the contents of the paper,
doc. 56-41 at 13–14, the Faculty Council clearly had a basis independent of Dr.
Tilashalski to assess Rollins with regards to the remedial paper. Likewise, Dr.
Tilashalski’s statements to the Faculty Council that he suspected that Rollins did
not write his own appeal and that he could not recall the last time a SOD student
failed Dental Anesthesia, docs. 56-39 at 28; 56-40 at 1; 56-10 at 2, while
inappropriate, fail to cast doubt on the proceedings as a whole or overshadow the
great weight of evidence the committee considered. In fact, the Faculty Council
meeting minutes indicate that, like the APC, it based its decision on the specific
factual information it had regarding Rollins’ academic performance. See doc. 56-8.
Based on the record before the Faculty Council and the APC and each committee’s
respective deliberations, this court has no legal basis to question their expert
evaluation of Rollins’ academic record. See Horowitz, 435 U.S. at 90.
As further evidence of bias, Rollins argues that Dr. Waite, who denied his
grade appeal, should have recused himself from the Faculty Council’s vote. The
court disagrees because the grade appeal and academic status appeals are two
separate procedural options. As its name implies, the grade appeal focuses on one
single course, whereas the academic status review considers the student’s entire
academic record. Significantly, there is no evidence that Dr. Waite failed to
properly consider the two appeals based on the information Rollins submitted at
each level. At any rate, Rollins foreclosed his opportunity for an independent
review of Dr. Waite’s decision regarding his grade appeal by failing to complete
step three of that process. Doc. 50-2 at 2. Therefore, the court has no basis to
assign bias to Dr. Waite.
In short, Rollins failed to establish that the SOD substantially departed from
acceptable norms or that Defendants failed to exercise professional judgment. See
Ewing, 474 U.S. at 225. Therefore, Rollins’ motion for summary judgment on his
substantive due process claim is due to be denied, and Defendants’ motions are
due to be granted.
Titles VI and IX and Equal Protection22
Rollins is only pursuing the Title VI and IX claims against UAB. However, because the
analysis for these two claims is the same as the analysis for the equal protection claims that
Rollins is pursuing against both defendants, this section applies equally to Dr. Reddy. For the
reasons stated infra, Dr. Reddy’s motion on the equal protection claim is due to be granted.
Rollins contends also that Defendants violated his rights under the Equal
Protection Clause and that UAB discriminated against him in violation of Titles VI
and IX, by treating him less favorably than Comparators One and Two, dismissing
him from the SOD, and denying his request to remediate Dental Anesthesia.23 To
sufficiently state a claim, because “the Equal Protection Clause requires
government entities to treat similarly situated people alike,” Campbell v. Rainbow
City, Ala., 434 F.3d 1306, 1313 (11th Cir. 2006), Rollins “must allege that
‘through state action, similarly situated people have been treated disparately,’ . . .,
and put forth evidence that [the] actions were motivated by” gender or race.
Draper v. Reynolds, 369 F.3d 1270, 1278 n.14 (11th Cir. 2004) (quoting Thigpen
v. Bibb Cnty. Sheriff’s Dep’t, 223 F.3d 1231, 1237 (11th Cir. 2000). As for the
Titles IX and VI claims, Title IX “was modeled after Title VI of the Civil Rights
Act of 1964, which is parallel to Title IX except that it prohibits race
discrimination, not sex discrimination, and applies in all programs receiving
federal funds, not only in education programs. The two statutes operate in the
same manner, conditioning an offer of federal funding on a promise by the
Rollins also asserts, as evidence of discrimination, that Dr. Tilashalski failed to inform the
APC and Faculty Council of the precedent in Gross Anatomy and that the Dental Anesthesia
syllabus and Academic Guidelines required remediation. However, these contentions fail for the
reasons stated previously by the court. See supra, Section III.B.1.(c),(g).
recipient not to discriminate . . . .” Gebser v. Lago Vista Indep. Sch. Dist., 524
U.S. 274, 286 (1998) (internal citations omitted). Therefore, when analyzing Title
IX, courts should focus on the structure of Title VI, 42 U.S.C. § 2000d. Franklin v.
Gwinnett Cnty. Pub. Sch., 911 F.2d 617, 622 (11th Cir. 1990), rev’d on other
grounds, 503 U.S. 60 (1992). Consequently, because “discrimination that violates
the Equal Protection Clause of the Fourteenth Amendment committed by an
institution that accepts federal funds also constitutes a violation of Title VI,”
Holton v. City of Thomasville Sch. Dist., 425 F.3d 1325, 1329 n.1 (11th Cir. 2005)
(quoting Gratz v. Bollinger, 539 U.S. 244, 276 n.23 (2003)), the court will utilize
the same analysis for the Equal Protection and Titles VI and IX claims.
Specifically, the court will determine first whether Defendants treated similarly
situated students disparately, and then whether gender or race animus motivated
the disparate treatment.
1. Equal Protection and Title IX (gender)
Rollins contends that UAB violated his rights under Title IX and the Equal
Protection Clause when it allowed Comparator Two, a white female, the
opportunity to repeat the first year. Docs. 20 at 13–17; 50-1 at 66. To prevail,
Rollins must establish that Comparator Two is similarly situated, that UAB treated
her more favorably because of her gender, and “that [Rollins’ dismissal] was
motivated by an intent to discriminate.” Elston v. Talladega Cnty. Bd. of Educ.,
997 F.2d 1394, 1406 (11th Cir. 1993). Where, as here, Rollins is relying on
circumstantial evidence, Rollins must show that Comparator Two is “nearly
identical to [Rollins] to prevent [this] court from second-guessing a reasonable
decision by [UAB].” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th
Rollins is not similarly situated to Comparator Two because a review of
their respective academic records show that Comparator Two had a better overall
record. For example, in the spring semester, she earned three “B”s, four “C”s, and
one “F” in Cardiovascular and Renal Systems. Doc. 53-1 at 2. While on first brush
these final grades are comparable to Rollins’ four “B”s, three “C”s, and one “F” in
Dental Anesthesia, doc. 53-1 at 8, a closer look paints a different picture.
Specifically, Comparator Two only required remediation in Cardiovascular and
Renal Systems, where she earned a 65.94%, doc. 53-1 at 8, and passed her other
classes, albeit with marginal grades (for example, a final grade of 69.83% in
Dental Anesthesia that rounded to a 70%, and a 70% on the Medical Emergencies
final examination). In contrast, in addition to failing Dental Anesthesia, Rollins
also failed every assessment in Gross Anatomy with a semester average of 53.3%,
and only made a “C” due to passing the comprehensive competency examination
that the instructor allowed him to take despite failing to reach the 60% threshold
necessary for remediation. Although Rollins would prefer that the court focus only
on his post-remediation grades, the record is clear that, unlike Comparator Two,
the APC and the Faculty Council found it significant that, prior to remediation,
Rollins finished the semester with two failing grades. Moreover, the APC and
Faculty Council also factored that, during the fall semester, Rollins failed the first
two examinations in Fundamental I, a course Rollins previously took while in
graduate school. Therefore, based on this record, Rollins has failed to establish
that he is similarly situated to Comparator Two.
Alternatively, even if Rollins is similarly situated to Comparator Two,
Rollins’ gender claims still fail because of the absence of discriminatory intent. To
show discriminatory intent, Rollins relies initially on Gossett v. Okla. ex rel. Bd. of
Regents for Langston Univ., 245 F.3d 1171, 1180 (10th Cir. 2001), in which the
university failed to give a male student an opportunity to remediate. Gossett is
distinguishable, however, because the plaintiff in that case presented evidence of a
history of discriminatory practices and arbitrary and capricious decisions towards
male students. Gossett, 245 F.3d at 1178 n.2. Specifically, the university displayed
gender bias by failing male students without any opportunity for remediation,
whereas instructors counseled the female students and offered them incomplete
grades and remediation. Id. Unfortunately for Rollins, there is no evidence that
UAB applied the remediation policies in a discriminatory manner. In fact, of the
53 other students Rollins references whom the SOD allowed to remediate over a
ten year period, 27 (50.9%) were male. See doc. 56-6. More importantly, the SOD
allowed Rollins to remediate Gross Anatomy even though his grade failed to meet
the minimum threshold requirement, and only denied him remediation in Dental
Anesthesia after the APC and Faculty Council reviewed his academic record and
determined that it was unlikely that he could successfully complete the SOD.
Therefore, Gossett does not help Rollins.
As additional evidence of discriminatory intent, Rollins contends that 1) Dr.
Tilashalski did not present erroneous information about Comparator Two to the
APC and Faculty Council, 2) Dr. Tilashalski did not inquire into Comparator
Two’s pre-SOD grades or run her work through a plagiarism program, 3) the
grading inconsistencies in Dental Anesthesia favored Comparator Two, and 4) Dr.
Louis may have manipulated the Dental Anesthesia grades. For the reasons that
follow, the court finds that none of these contentions establishes evidence of
discriminatory intent. First, the emails Dr. Tilashalski sent the APC for
Comparator Two also reported initially an incomplete list of grades similar to the
one on Rollins, and, as previously discussed in Section III.B.1(b), Dr. Tilashalski
subsequently presented accurate and complete information about Rollins to the
APC and Faculty Council. See doc. 52-23 at 1–2, 5–7. Second, Rollins’
contentions regarding the plagiarism program and the pre-SOD grades are nonstarters because, unlike Rollins, Comparator Two did not submit a paper in
support of her appeal, there is no evidence in the record that she took any of the
first year courses prior to enrolling at the SOD, and Rollins’ graduate school
grades in Fundamentals I and II were relevant to the APC and Faculty Council’s
evaluation of his academic performance. Third, the grading inconsistencies in
Dental Anesthesia had no impact on Comparator Two or Rollins’ grades. See doc.
43-3 at 22, 24. The relevant issue here centers on the mid-term examination where
a grading inconsistency occurred presumably because of a “computer issue.”24
Doc. 51-3 at 19. Although Rollins and Comparator Two provided the same
incorrect answer to one question, Comparator Two received full credit or 1.45
points. Docs. 40-1 at 6; 40-2 at 18; 51-3 at 17–18. However, according to Dr.
Louis, even without the grading error, Comparator Two’s final grade would have
remained a “C,” and Rollins’ a “F,” doc. 43-3 at 22, 24, and Rollins has failed to
present the court with any evidence to rebut this contention. Rollins and
Comparator Two also answered a second question incorrectly, but Rollins
The examinations and the grading were conducted by a computer. Doc. 51-3 at 19.
received zero points and Comparator Two received full credit. According to Dr.
Louis, the discrepancy is presumably based on his utilization of psychometric
analysis, which gave Comparator Two credit for providing an answer that was
closer to the correct answer than Rollins’ answer.25 Docs. 40-1 at 8; 40-3 at 4.
However, there is no disparate treatment because, as Dr. Louis pointed out during
his deposition, based on similar psychometric analysis, Rollins also received full
credit for questions he answered incorrectly. See doc. 43-3 at 37–39. In other
words, the record before this court does not support Rollins’ contention that Dr.
Louis treated him less favorably than Comparator Two.
Finally, there is no credible evidence to support Rollins’ contention of grade
manipulation. Based on Dr. Ramp’s testimony that the course director has the
ability to “override the computer to give credit or take away credit or change the
amount of points for a question,” doc. 56-20, and Dr. Louis’ testimony about the
capability to access a particular student’s grades before they are entered, doc. 51-3
at 79–80, Rollins suggests the possibility that Dr. Louis manipulated the data to
cause the inconsistent grading of Rollins’ and Comparator Two’s exams. Doc. 61
The question was, “How many 1.8ml carpules of .05% bupivivicaine with epinephrine can be
administered to a 75kg individual in a 90 minute period (assume ideal body weight)?” Doc. 40-3
at 4. The correct answer was 10–11. Id. Comparator Two answered 8–9, id., and Rollins
answered 6–7, doc. 40-1 at 8.
at 24–25. However, bare assertions are insufficient to defeat summary judgment.
See Ellis, 432 F.3d at 1326. Therefore, in the absence of any evidence to support
such an accusation, especially in light of evidence that Dr. Louis used
psychometric analysis to give Rollins and Comparator Two credit for some
questions they answered incorrectly, the court declines to address Rollins’ rank
speculation that Dr. Louis tampered with the grades to his detriment. See id.
In sum, based on this record, Rollins has failed to meet his burden of
establishing gender discrimination. In fact, the record is replete with testimony
from members of the APC and Faculty Council that demonstrates a decisionmaking process free of discriminatory intent. See docs. 50-6 at 6, 25, 30; 52-4 at
3– 4; 51-17 at 7–8; 51-18 at 8; 52-1 at 15; 51-19 at 8–9. Therefore, because “the
Constitution does not demand perfection,” E&T Realty v. Strickland, 830 F.2d
1107, 1114 (11th Cir. 1987), and Rollins failed to establish that he is similarly
situated to or treated less favorably than Comparator Two, or that UAB or Dr.
Reddy intentionally discriminated against him because of his gender, Rollins’
equal protection and Title IX claims fail as a matter of law.
2. Equal Protection and Title VI (race)
Rollins claims next that UAB violated the Equal Protection Clause and Title
VI by treating him less favorably than Comparator One, a black female who
ranked last in the class, and by dismissing him from the SOD to offset on racial
grounds the decision to dismiss Comparator One.26 As an initial matter, the court is
confounded by Rollins’ reliance on Comparator One to show alleged disparate
treatment when the SOD also dismissed Comparator One for academic reasons.
However, even ignoring this fact, the two examples Rollins provide are
unpersuasive. First, ignoring that Dr. Zehren allowed him to remediate Gross
Anatomy even though he scored below the cutoff, Rollins contends that UAB
treated Comparator One more favorably by allowing her to remediate
Cardiovascular and Renal Systems in violation of the syllabus. In actuality, one
can argue that Rollins received more favorable treatment because his grade of
53.3% fell 6.7 points below the minimum cutoff to qualify for remediation in
Gross Anatomy, and yet was allowed to take the competency exam. See docs. 53-3
at 5; 53-26 at 3; 56-34 at 1. In contrast, although the Cardiovascular and Renal
Systems course syllabus is clear that “[s]tudents who receive a course grade below
65 will receive an F for their grade with NO chance of remediation,” doc. 53-1 at 7
Rollins also contends as evidence of discrimination the following: 1) Rollins was the only one
of 54 students not allowed to remediate, retest, or repeat, 2) Rollins was academically superior to
Comparator Two, and 3) Dr. Tilashalski presented skewed information that biased the APC and
Faculty Council against Rollins. However, the court previously addressed Rollins’ assertions
regarding Dr. Tilashalski’s bias. Moreover, Comparator Two, a white female, is not a proper
comparator for Rollins’ race based claim. Finally, Rollins’ bare assumptions regarding the other
students are insufficient to survive summary judgment. Ellis, 432 F.3d at 1326.
(emphasis in original), Dr. Carrie Elzie, the course director, used her discretion to
round Comparator One’s average by 0.14 points from 64.86% to 65%, which
qualified Comparator One for remediation, see doc. 53-1 at 6 (“Students who
receive a grade between 65-69.99 may be eligible for remediation.”). Put simply,
Rollins received the same consideration as Comparator One when his Gross
Anatomy professor allowed him to remediate despite posting a final grade well
outside the cutoff.
Next, Rollins claims that UAB treated Comparator One more favorably by
rounding up her grade in PCD: Operative. According to Dr. Ramp, the course
director, although she utilized a practice of rounding a 79.5% to a “B,” doc. 56-20
at 24, she used her discretion to round Comparator One’s 79.3% to a “B,” id. at 19.
This 0.2 deviation is the basis for Rollins’ contention of alleged favorable
treatment. Unfortunately for Rollins, his contention that Dr. Ramp’s decision
establishes disparate treatment is unavailing, in part, because Rollins did not
receive any grades that were only 0.2 points short of justifying the course director
to round up the grade to the next letter grade. Moreover, Comparator One would
have passed the course with a “C,” even without the rounding of her grade. More
significantly, Comparator One received no real benefit from the rounding because
the SOD dismissed her from the program.
Perhaps because Rollins recognizes that he cannot claim credibly that
Defendants treated him less favorably than Comparator One in light of her
dismissal from the SOD, it seems Rollins’ primary contention is that the SOD
discriminated against him precisely because it treated him exactly as Comparator
One. According to Rollins, UAB dismissed him from the SOD solely to
manufacture a defense in the event Comparator One subsequently challenged her
dismissal on racial grounds. Basically, Rollins contends that Defendants
concluded they had to dismiss him to purportedly “balance out” the decision to
dismiss Comparator One. See doc. 61 at 25.
There are major flaws, however, in Rollins’ contention. First, as Rollins
admits, he has no evidence to establish that Defendants dismissed him because of
their desire to avoid a lawsuit or to “balance out” the dismissal of Comparator
One, and is simply contending that race “possibly” factored into his dismissal. See
doc. 50-1 at 69–70. Unfortunately for Rollins, facts, not speculation or conjecture,
are necessary to survive summary judgment. See Ellis, 432 F.3d at 1326. Second,
Rollins’ contention is also flawed because it relies on obfuscation to support
Rollins’ narrative that he was the casualty of a preemptive litigation strike. To
support his contention, Rollins focuses, in part, on Drs. Reddy and Tilashalski’s
affidavits27 in the race discrimination lawsuit Comparator One filed to challenge
her dismissal, which he claims demonstrate Defendants dismissed him to “balance
out” Comparator One’s dismissal. Doc. 61 at 25. However, this narrative ignores
that Rollins’ academic record, like Comparator One’s, warranted dismissal. In that
respect, Rollins’ dismissal is not racially motivated simply because the other
person dismissed was African American. Moreover, even construing the evidence
in the light most favorable to Rollins, the affidavits fail to establish that the SOD
dismissed Rollins in anticipation of creating a defense to a then non-existent
lawsuit. Rather, when read in their totality, the affidavits merely explain UAB’s
reasoning for dismissing Comparator One, i.e. her academic performance, and
only mention Rollins to rebut Comparator One’s contention that racial animus
played a role in her dismissal. While obviously Rollins believes he was a better
student than Comparator One–and he was based on the class rank, that the SOD
also dismissed Rollins and subsequently referenced him in Comparator One’s
lawsuit does not imply that Defendants had an impermissible motive for
The relevant language in the affidavits state: Dr. Reddy–“[a]t approximately the same time as
plaintiff’s dismissal, the SOD also dismissed a white male student whose academic performance
was inadequate, but better than [Comparator One’s],” doc. 56-4 at 3; and Dr. Tilashalski–“[a]t
approximately the same time as [Comparator One] was dismissed, a white male student in the
same year was also dismissed from the SOD,” id. at 5.
The court is also not persuaded by the deposition testimony Rollins
references in further support of his contention that his race factored in his
dismissal. Rollins cites to Dr. Ramp’s testimony regarding the APC meeting that,
“‘It,’ meaning race, didn’t have to be stated. I know the students. So I guess–I’m
sure race went through my head.” Doc. 56-2 at 33. To the extent Rollins is
claiming that this testimony suggests a bias against him by Dr. Ramp, the record is
clear that Dr. Ramp abstained from the APC’s vote to dismiss Rollins because of
her role as Rollins’ adviser, and that she advocated for the Faculty Council to
overturn the decision. Doc. 53-8 at 1–2. Moreover, Dr. Ramp’s testimony fails to
establish that racial animus factored in the APC’s decision to dismiss Rollins.
More importantly, knowing the race of the subject of a decision is not tantamount
to making a decision based on race.
Likewise, Rollins’ reliance on Dr. Eleazer’s testimony regarding the APC’s
deliberations also fails to establish that racial animus factored in Rollins’
dismissal. The relevant passage Rollins cites states:
Q: Dr. Eleazer, what would be your reason for believing all three
students should have repeated the year?
A: I believe it would be fair to all three of them to give them an
opportunity to demonstrate that they were, indeed, capable of
progressing to the, to the next level of dental school. And, frankly, I
weighed the race of [Comparator One] in my deliberation.
Q: And what do you mean by that?
A: I mean it would be difficult to dismiss a black female
[Comparator One] and promote a white female [Comparator Two] or
white male [Rollins].
Q: Would that particularly be true given that they were all kind of
clustered together at the bottom?
Q: Of course, I guess, if you terminated or dismissed [Comparator
One] from the program, a black female, and dismissed Lee Rollins, a
white male, then that would kind of balance itself out, correct?
A: In a manner of speaking, I suppose. In a manner of speaking,
Doc. 56-3 at 9.28 When read in its totality, Dr. Eleazer’s testimony only supports
Counsel for Rollins also asked Dr. Eleazer about the affidavits in his attempt to prove a racial
Q: Have you had a chance to review [Dr. Reddy’s affidavit in support of a motion
in Comparator One’s case]?
A: I have, yes.
Q: Now, you would have seen in Paragraph 11 were Dean Reddy says
[Comparator One’s] dismissal from the School of Dentistry had nothing to do
with her race.
Q: And then Paragraph 13, he says, ‘At approximately the same time as plaintiff’s
dismissal’ – plaintiff in that case being [Comparator One] – ‘the School of
Dentistry also dismissed a white male student whose academic performance was
inadequate but better than [Comparator One’s].’ Do you have any reason to
believe that’s anybody other than Lee Rollins?
A: I do not.
Q: The APC – you only dismissed two students from that class, the 2011-12 class, right?
Q: And that would be [Comparator One] and Mr. Rollins?
the reasonable inference that he wanted to ensure that the APC treated all three
students similarly because of their identical academic record. In fact, when Dr.
Eleazer mentioned that he considered race, it was not to discriminate against
Rollins, but in the context of ensuring that Rollins, Comparator One, and
Comparator Two received the same opportunity to repeat the first year and to
demonstrate that they could progress to the second year. This is even more evident
because Dr. Eleazer voted against Rollins’ dismissal. Doc. 51-20 at 7.
Consequently, Rollins has no credible basis to contend that Dr. Eleazer’s
comments demonstrated racial bias against Rollins.29 While Rollins obviously
Q: And we know Mr. Rollins is a white male, and we know his academic performance
was a little better than [Comparator One’s], correct?
Q: Is it a fair inference, Dr. Eleazer, that Dean Reddy seems to be saying evidence that
there was no discrimination against [Comparator One] was that Mr. Rollins was
dismissed at the same time?
A: That’s correct, I believe Dr. Reddy would take special pains to make sure that there
was no unfairness.
Doc. 56-3 at 19-20 (emphasis added). This exchange does not help Rollins’ narrative that he was
selected to “balance out” the dismissal of Comparator One. If anything, it supports Dr. Reddy’s
contention that he ensured a fair process for all students involved.
To the extent that Rollins is claiming Dr. Eleazer’s comments suggest that others considered
Rollins’ race, there is no factual support for such a contention. In fact, Dr. Eleazer added also
that, in his opinion, no one based their decision on race or gender:
Q: Okay. So, in your opinion, the APC did not show – did not discriminate
against anybody based on their race or gender –
Q: – in making their decisions?
A: No one at any time made any comment in my recollection.
Q: Okay. And whether they made a comment about it or not, do you believe that
believes he deserved a chance to repeat or to remediate–an assessment Dr. Eleazer
shared, Dr. Eleazer’s desire to ensure that the APC decision was fair and free of
racial bias does not mean that the SOD dismissed Rollins because of his race or to
“balance out” the dismissal of Comparator One.
Under the facts here, Rollins has failed to demonstrate any racial animus in
the APC’s decision to dismiss him from the SOD. To the contrary, the APC
reached its decision after evaluating Rollins’ academic record. Among other
things, the APC considered that Rollins failed the first two exams in Fundamentals
I–a class Rollins took as a graduate student, passed Medical Emergencies
primarily because of a group project, passed Gross Anatomy because the instructor
made an exception and allowed him to remediate, and failed Dental Anesthesia
even after the course instructor curved the grades. As Dr. Tilashalski testified, the
APC discussed that Rollins’ performance showed a downward trend even though
the APC “[couldn’t] say [Rollins] didn’t do well because he wasn’t trying, he was
[in class and in laboratories] . . . and expresse[d] genuine interest . . . and said he
discrimination or bias came into the decision?
A: No, my statement is I think that it was very convenient to have dismissed Mr.
Rollins in addition to an African-American because it is evidence that there is no
discrimination. . . . So, I believe we bent over backwards to demonstrate that
there was no discrimination. Never discussed openly, that [is] just was my own
Doc. 56-3 at 58.
wanted to do well . . . .” Doc. 56-39 at 26. Unfortunately, sometimes a desire to do
well and a strong work ethic have no correlation to overall aptitude. Based on
Rollins’ record and the trends it showed, the APC concluded that Rollins lacked
the necessary attributes to successfully complete the program: “[the APC] looked
at that [record] as somebody that . . . we are not sure can make it through.” Id. at
28. Although Rollins is free to disagree with the APC, he cannot, however, mask
his academic record by claiming that racial bias or an alleged impermissible
concern about “balancing out” a selection decision caused his dismissal, especially
when, as here, the record does not support his contention. Ultimately, because “the
Equal Protection Clause requires government entities to treat similarly situated
people alike,” Campbell, 434 F.3d at 1313, and UAB treated Rollins no differently
than Comparator One, Rollins’ claim fails, and summary judgment is due in favor
Consistent with this opinion, the court will issue a separate order denying
Rollins’ motion for summary judgment and granting Defendants’ motions.
Done this 29th day of September, 2014.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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?