Moorehead v. Harding University Inc et al

Filing 61

ORDER granting 44 defendants' Summary Judgment and dismissing the complaint with prejudice. Signed by Judge D. P. Marshall Jr. on 5/17/12. (kpr)

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

LINDSAY MOOREHEAD

v.

PLAINTIFF

No.4:10-cv-546-DPM

HARDING UNIVERSITY, INC.;
HARDING UNIVERSITY; and
MICHAEL MURPHY, M.D.

DEFENDANTS

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ORDER
1. Lindsay Moorehead was one of twenty-six students in the second
class of Harding University's Physician Assistant Program. She was enrolled
from the summer of 2006 through the summer of 2007, one of only two
African-Americans in her class. Moorehead filed this suit under 42 U.S.C. §
1981 after she was dismissed from the Program in June 2007. She claims that
her race motivated her dismissaL

The Harding Defendants say that

Moorehead struggled academically from the outset, repeatedly failing to meet
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the Program's academic benchmarks. Harding University and Dr. Murphy,
the P A Program Director, seek summary judgment.
Where genuine disputes of material fact exist in the record, the Court
has viewed them in the light most favorable to Moorehead. Scott v. Harris, 550
U.S. 372,380 (2007). But because" the record taken as a whole could not lead

a,rational trier of fact to find for [Moorehead], there is no genuine issue for

trial." Ibid. (quotation omitted). Moorehead has not shown that Harding
University or its employees intended to discriminate against her based on her
race. Williams v. Lindenwood University, 288 F.3d 349, 355 (8th Cir. 2002);
Gamble v. University ofMinneso ta, 639 F.2d452,453 (8th Cir. 1981) (per curiam).

Harding and Dr. Murphy are entitled to judgment as a matter of law.
2.

Section 1981 prohibits discrimination in the "performance,

modification, and termination of contracts" and protects Moorehead's
enjoyment of the "benefits, privileges, terms, and conditions" of her
contractual relationship with Harding.

42 U.S.C. § 1981.

Because

Moorehead's discrimination claim rests on inferences drawn from
circumstantial evidence, the Court looks to the familiar burden-shifting
framework to analyze her case. Moorehead makes a prima facie case by
showing these things: (1) she is a member of a racial minority; (2) Harding
University or its employees intended to discriminate against her on the basis
of race; and (3) the discrimination concerned an area covered by the statute.
Williams, 288 F.3d at 355.

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Moorehead meets the first and third elements of this analysis: as a black

student she had a contract with Harding, and her expulsion for allegedly
discriminatory reasons is tantamount to the termination of that contract[.]"
II

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Williams, 288 F.3d at 357. The fighting issue is discriminatory intent. Is there

a jury question on whether race or academic performance prompted Harding
to show Moorehead the door?
3. Moorehead began Harding's PA Program in the summer of 2006.
She had problems from the start. For example, she failed and had to retake
three exams - what the parties call"remediation" - in her first semester. She
failed Clinical Medicine I and her GPA was below 2.5. Pursuant to Program
P9licy, Moorehead was placed on academic probation.

Moorehead's

performance continued to lag during the fall 2006 semester. She failed and
retook three more exams. Her cumulative GPA remained below 2.5.
In mid-November 2006, Moorehead's mother sent an email to Dr. Larry

Long, then Vice President of Academic Affairs, raising concerns about
Moorehead's treatment in the Program.

Moorehead's mother made

allegations of racial discrimination. Dr. Long forwarded the email to Dr.
Thompson, Dean of the College of Sciences under which the P A Program

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operated, telling him to look into the matter. Dr. Thompson did not do so.

Dr. Murphy, Professor Tobin (a professor in the PA Program), and Peggy
Huckeba (Academic Director of the P A Program) all stated, either by
deposition testimony or sworn affidavit, that they did not know about
Moorehead's mother's email until this lawsuit started.
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A couple of weeks after the email, Moorehead and her classmates were
allowed to review an exam they had recently taken. The class was warned
several times, in various ways, not to copy the exam; Professor Tobin, who
was supervising the review, instructed the students that they were allowed
to note concepts for further study, but were not to copy exam questions and
answers. After the review, Professor Tobin asked three students (Moorehead
and two white women) for their notes. He suspected that these students had
been writing down exam questions and answers. The three women produced
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their notes. Moorehead, however, was the only one that had copied specific
exam questions and answers. She admits doing this.

Professor Tobin

discussed the issue with Dr. Murphy and Ms. Huckeba, and the trio met with
Moorehead.

Academic dishonesty was later added as a reason for

Moorehead's probation. Moorehead unsuccessfully appealed that decision.

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After the fall 2006 semester, the faculty academic advancement
committee reviewed Moorehead's progress.

Dr. Murphy then wrote

Moorehead dismissing her from the Program because, under Program policyI
a student with a cumulative GPA of less than 2.5 for two consecutive
semesters was subject to dismissal. Moorehead challenged this dismissal.
Harding reinstated her because Ms. Huckeba had incorrectly advised
Moorehead about the Program's requirements.
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In April 2007, all the first-year students were required to take a

proficiency exam called the OSCE - a comprehensive test covering the entire
first year of the Program. Moorehead had failed Clinical Medicine I, but
Program policy mandated that all the first-year students take the exam.
Moorehead was the only person in her class not to pass the exam.
Though nothing in the handbook required him to do so, Dr. Murphy
gave Moorehead a second chance to pass the OSCE. She chose to retake the
exam at the beginning of the summer semester rather than the end of the
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summer semester, which would have been after she had retaken Clinical
Medicine I. Dr. Murphy gave Moorehead study materials, allowed her to
review the OSCE she had failed, and tutored her. But despite being given

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extra time to complete one of the problems on the second OSCE, Moorehead

again failed the exam.
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Moorehead had assumed that, because the first OSCE exam and the
practice OSCE exams did not contain any cardiac questions, the second OSCE
exam would not cover that subject area. Nobody told Moorehead not to
study that subject area or that materials from Clinical Medicine I would not
be on the exam. Dr. Murphy and Professor Tobin, though not required to do
so, included a cardiac question on the second OSCE because Moorehead had
done relatively well on several exams covering cardiac material.
Harding then dismissed Moorehead from the Program, pursuant to
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Program policy, because she twice failed the OSCE. She unsuccessfully
appealed the decision.
4. Moorehead has not raised a triable issue of fact on the 'ultimate
question in cases of this sort-whether Harding intentionally discriminated
against Moorehead because of her race. Williams, 288 F.3d at 355. Harding
and Dr. Murphy offered a mound of evidence showing that Moorehead's
dismissal was for purely academic reasons; they addressed each of
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Moorehead's allegations; in turn, she has not met their proof with proof.

Conseco Life Insurance Co. v. Williams, 620 F.3d 902, 910 (8th Cir. 2010).
Even if Moorehead had made a primafacie case of discrimination, which
the Court concludes she has not, the Court would still grant Harding and Dr.
Murphy summary judgment. They provided legitimate, non-discriminatory
reasons for dismissing Moorehead from the Program. Poor performance, not
race, weighed in the balance. See, e.g., Bell v. Ohio State University, 351 F.3d
240, 254 (6th Cir. 2003). Moorehead offered no evidence to rebut these
reasons or cast doubt on them. She therefore cannot prove that the reasons
for her dismissal were merely pretextual.
5. Moorehead also claims that her dismissal was retaliation for her
mother's email to Harding officials. Retaliation claims are analyzed under the
same burden-shifting framework: lito establish a prima facie case of
retaliation, [Moorehead] must show that (1) [s]he was engaged in a protected
activity, (2) the institution was aware of that activity, (3) [s]he suffered an
adverse action, and (4) there was a causal connection between the protected
activity and the adverse action." Shelton v. Trustees ofColumbia University,369
F. App'x 200, 201 (2d Cir. 2010).
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Here, assuming without deciding that Moorehead has established the
first three elements of her prima facie case on retaliation, she has failed to
establish the fourth. None of the Harding officials who decided to dismiss
Moorehead from the Program knew about Moorehead' smother's email when
they made their decision. Moorehead cannot establish the required causal
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connection between the email and her dismissal. Dr. Murphy, Professor
Tobin, and Ms. Huckeba simply could not have acted in retaliation for an
email unknown to them.

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Defendants' motion for summary judgment, Document No. 44, granted.
Moorehead's complaint, Document No. 26, is dismissed with prejudice.
So Ordered.

D.P. Marshall Jr.
United States District Court
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