NORTH v. WIDENER UNIVERSITY

Filing 25

MEMORANDUM AND/OR OPINION. SIGNED BY CHIEF JUDGE PETRESE B. TUCKER ON 7/10/2013. 7/11/2013 ENTERED AND COPIES E-MAILED. (ems)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JEFFREY NORTH,
Plaintiff,
v.
WIDENER UNIVERSITY,
Defendant.

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CIVIL ACTION
NO. 11-6006

MEMORANDUM OPINION
Tucker, C.J.

July 10, 2013

Presently before the Court is Plaintiff Jeffrey North’s motion for summary judgment on
his breach of contract claim against Defendant Widener University (Doc. 20), as well as
Defendant’s cross motion for summary judgment on all counts asserted by Plaintiff (Doc. 21).
Upon consideration of the parties’ motions with briefs and exhibits, this Court will deny both
parties’ motions with respect to Plaintiff’s claim that Widener breached its contractual
obligations when failing to provide Plaintiff with a pre-termination hearing.

Plaintiff’s breach

of contract claim with respect to all other matters, as well as Plaintiff’s claim under Section 504
of the Rehabilitation Act, is dismissed in favor of Widener.
I.

BACKGROUND
This case arises from Plaintiff’s expulsion from the Graduate Clinical Psychology

Program at Widener University.

Plaintiff submits that he suffers from Attention Deficit

Hyperactivity Disorder (AADHD@) and that his expulsion was a result of discrimination based on
this condition.

The relevant facts giving rise to his expulsion are as follows.

Plaintiff’s first involvement with the University was as an undergraduate intern employed
at the University’s Neuropsychology Assessment Center (“NAC”).
1

During the time Plaintiff

worked for the NAC, he lived at the home of a close family friend, Dr. Robert Gillespie (“Dr.
Gillespie”), who at the time was employed by the University as Associate Director of the NAC.
On December 31, 2005, Plaintiff submitted an Application for Admission to the University’s
Graduate Clinical Psychology Program (the “Program”), and was admitted on March 8, 2006.
Once enrolled in the Program, Plaintiff was assigned Dr. Kenneth Goldberg (“Dr. Goldberg”) to
serve as his faculty advisor.

As a graduate student in the Program, Plaintiff was subjected to

the University’s Graduate Student Handbook, Manual for Clinical Psychology Students (the
“Manual”), and the Guidelines for the Third-Year Qualifying Examination Doctor of Psychology
Degree (the “Guidelines”).
Annual Program Review/Academic Probation/Leave of Absence
Pursuant to the Manual, students are formally reviewed by the core-faculty during their
first and third year in the Program.
years in the Program.

The Manual also provides for student reviews during other

In accordance with the Manual, the Program faculty reviewed Plaintiff’s

progress as a first-year student on February 5, 2007.

Following the review, Plaintiff received a

letter from the Program Director Virginia Brabender, Ph.D. (“Dr. Brabender”) advising him that
he was on academic probation as his grade point average fell below the average needed to
maintain good standing in the Program.

Dr. Brabender also recommended that Plaintiff meet

with Dr. Goldberg regularly and work on a plan to improve his academic standing.
On November 19, 2007, the faculty reviewed Plaintiff’s progress as a second-year
student.

While Plaintiff was no longer on academic probation, the faculty found that he

continued to struggle academically and alerted him to “significant concerns regarding his
performance in the program.” See Def.’s Ex. K, December 6, 2007 correspondence to Plaintiff
2

from Dr. Brabender.

Due to those significant concerns, Dr. Brabender required Plaintiff to

meet with both herself and Dr. Goldberg upon his return for the spring semester.
Upon his return for the spring semester, Plaintiff was assigned to perform a practicum
with NHS of Philadelphia.

Due to a number of issues including failure to submit paperwork in

a timely fashion, problems maintaining a caseload, and issues concerning attendance and
professionalism, Plaintiff was placed on a thirty (30) day probation.

Plaintiff was also given a

written probation plan detailing four (4) specific goals and advised that his goals would be
monitored and discussed with the University.
In March, 2008, Plaintiff met with Dr. Brabender and Dr. Goldberg to discuss his status
in the Program. After discussing his options, Plaintiff opted to take a one (1) year leave of
absence from the University.

Plaintiff again met with Dr. Goldberg on April 16, 2008, at which

time his grades, practicum, and year of absence were discussed.
Following his leave of absence, Plaintiff returned to the University in the fall of 2009.
On November 17, 2009, Plaintiff met with Dr. Goldberg for an advisee meeting.

At this

meeting, Dr. Goldberg discussed with Plaintiff his probationary status, grades, and performance
issues that had been raised by his current practicum supervisor.

Plaintiff and Dr. Goldberg

agreed that Plaintiff would contact his practicum supervisor directly and continue to work in
class to improve his grades.

In response, Plaintiff contacted his practicum supervisor and

reported back to Elizabeth Gibbings, the University’s practicum placement coordinator.
On March 8, 2010, the faculty reviewed Plaintiff’s status in the Program.

It was

determined by the faculty that Plaintiff would again be placed on probation due to continued
behavioral concerns at his practicum site and continued difficulties with professional

3

responsibilities.

Plaintiff was advised, in writing, that the faculty had concerns with his

professional development and that his status in the Program would be again reviewed in May
2010 to determine his eligibility to sit for the Third-Year Qualifying Examination (the
“comprehensive examination”).
On March 18, 2010, Plaintiff met with Dr. Brabender and Dr. Goldberg to discuss his
probationary status.

During that meeting, there was a discussion with Plaintiff about steps that

should be taken so that his probation could be lifted, such as meeting with professors, being on
time for class, and not missing time from his practicum.

Following the meeting, Plaintiff again

met with Dr. Goldberg to review his progress and the steps he had taken to address the faculty
concerns, as well as the upcoming faculty meeting.
On May 2, 2010, Plaintiff wrote to Dr. Goldberg outlining the goals that he was asked to
work on and the steps he had taken to address all of the faculty concerns.

On May 3, 2010, the

faculty reviewed the evidence presented by Plaintiff and their observations of his conduct since
being placed on probation.

The faculty voted to lift his behavioral probationary status and

placed him in good standing so that he could sit for the comprehensive examination.
Failures of the Comprehensive Examination
In the spring of 2010, Plaintiff sat for the comprehensive examination for the first time.
While he passed three (3) sections of the examination, he failed two (2) others – Research
Methods and Assessment.

In accordance with the Guidelines, Plaintiff was afforded a re-take

of the sections that he did not pass.

The Guidelines recommend that students meet with the

faculty member who graded the failed question(s) to obtain feedback.

Throughout the fall of

2010, Plaintiff met with Dr. Hal Shorey (“Dr. Shorey”), who was also his dissertation chair, to
4

discuss his failed answer as well as to prepare for the upcoming retake examination.
Plaintiff retook the comprehensive examination in late October, 2010.

On November 2,

2010, Plaintiff was advised that while he passed the Assessment portion of the retake
examination, he had again failed the Research Methods.

In accordance with the Guidelines,

any student who fails any section of the examination for a second time is subject to faculty
review for continuation in the Program.
Faculty Review of Program Status Following Second Failure of Comprehensive Examination
On November 2, 2010, Dr. Goldberg emailed Plaintiff at his University email account the
following:
Dean Wilhite has informed me to ask for the following. He requires a
letter to be sent by Friday, November 5, 2010. This letter should request
continuation in the program and include a plan for remediating the
continuing area of weakness and any other information that you believe is
relevant to the faculty’s consideration. I will need the letter in order to
present your situation to the faculty on Monday, November 8, 2010.
See Pl.’s Ex. H, November 2, 2010 correspondence to Plaintiff from Dr. Goldberg.

Dr.

Goldberg also emailed Plaintiff at his personal email account, alerting Plaintiff to the email he
had just sent to Plaintiff’s University account. See Def.’s Ex. BB.

Plaintiff failed to submit

any request for continuation in the Program in advance of the November 8, 2010 faculty
meeting.

Plaintiff claims that he did not receive Dr. Goldberg’s email until the evening of

November 8, 2010 because Dr. Goldberg’s email was in his spam folder.

According to

Plaintiff, Dr. Goldberg’s email was sent from an unknown email address, rather than his official
University account, which caused his computer system to automatically designate the email as
spam.

Widener refutes Plaintiff’s accusations, arguing that the email address from which Dr.

Goldberg’s message was sent is in fact his official email address and that Plaintiff communicated
5

with Dr. Goldberg at this email address on multiple occasions dating back to 2008.
While Plaintiff did not submit information to the faculty in time for the November 8,
2010 faculty meeting, Dean Stephen Wilhite (“Dean Wilhite”) presented a chart detailing a
summary of Plaintiff’s history in the Program for the faculty’s consideration.

Plaintiff, along

with the other students subject to review for continuation in the Program, was not invited to the
meeting and did not attend.

Following a discussion, there was a vote by the faculty to terminate

Plaintiff from the Program.

Among the group of students subject to review, Plaintiff was the

only student that was dismissed.1

Widener’s cited reasons for Plaintiff’s dismissal were his

failing score on the comprehensive examination, his failure to submit a formal request for
continuation in the Program, and his previous history of problematic behavior.
Appeals of Faculty Decision to Dismiss Plaintiff from the Program
By letter dated November 10, 2010, Plaintiff appealed his termination, requesting that the
faculty reinstate him into the Program.
challenged the faculty’s decision.
November 22, 2010.

In a follow-up letter dated November 19, 2010, Plaintiff

Plaintiff presented his appeal in person to the faculty on

The meeting minutes read, in pertinent part:

Prior to the faculty meeting, documentation provided by Mr. North
supporting his appeal of his termination from the program was made
available to the faculty . . . Mr. North was invited to join the meeting.
Mr. North’s attorney accompanied him . . . Mr. North proceeded to read a
statement he prepared on his behalf and was then given to the [sic]
opportunity to answer questions . . . Dr. Wilhite thanked him for coming
and informed him that he would receive an email communication the next
day informing him of the action taken by the faculty. Faculty discussion
ensued as to whether to uphold the decision to terminate.
Faculty agreed to table the decision until the next faculty meeting because
1 The parties dispute the number of students subject to review for continuation in the Program at the November 8,
2010 meeting. Plaintiff claims that there were seven (7) students subject to review, while Widener contends that
there were only four (4) students. Nonetheless, the Court finds this dispute to be immaterial.

6

of the need of some faculty present to attend a dissertation defense and to
allow Dr. Wilhite time to consult with university legal counsel. Dr.
Wilhite indicated that Mr. North would be informed that he can continue
his clinical placement and continue to attend class until a decision is
reached on his appeal at the December 6 meeting of the faculty. Dr.
Elwork asked the faculty to keep in mind that it was not just the negative
outcome of the comprehensive exam retakes that lead [sic] to the decision
to terminate but included also consideration of Mr. North’s entire history
in the program.
See Pl.’s Ex. K.
On December 6, 2010, the faculty met to consider Plaintiff’s appeal.
Plaintiff’s appeal.

The faculty denied

In accordance with the Manual, Plaintiff was given the opportunity to appeal

the faculty’s decision to the Academic Council of the School of Human Service Professions
(“Academic Counsel”).

On December 16, 2010, the Academic Counsel heard Plaintiff’s

appeal, at which time he appeared in person.

Plaintiff was informed, by letter dated December

20, 2010, that the Academic Counsel voted to uphold the decision of the faculty in dismissing
him from the Program.
On December 22, 2010, Plaintiff appealed his termination to the Academic Review
Board, and was afforded a second opportunity to present his appeal in person.
2011, the Academic Review Board heard Plaintiff’s appeal.

On January 18,

Plaintiff’s final appeal was denied

and his dismissal was upheld.
North Notifies the University of his ADHD
In asserting a claim under Section 504 of the Rehabilitation Act of 1973 (the
“Rehabilitation Act”), 29 U.S.C. § 794, et seq., Plaintiff alleges that Widener discriminated
against him due to his learning disability.

According to Plaintiff, multiple members of the

University were well aware of his struggles with ADHD prior to his termination in November,
7

2010.

Plaintiff alleges that Dr. Gillespie, the close family friend and University professor he

lived with while interning at the NAC, knew about his condition for many years and told him not
to disclose it to the faculty because it would be regarded as a sign of weakness and unsuitability
for the program.

Plaintiff further alleges that he shared his condition with several professors in

the Program, including Drs. Mary Lazar (Dr. Lazar), Wendy Sarkisian (Dr. Sarkisian), Goldberg,
and Shorey.2
With respect to Drs. Lazar and Sarkisian, Plaintiff alleges that, while interning at the
NAC, he brought his psychiatric and medical files from high school to the office and asked Dr.
Lazar, while Dr. Sarkisian was present, if she would like to review his diagnosis of ADHD.
Plaintiff claims that Dr. Lazar looked uncomfortable and said nothing, but Dr. Sarkisian
explained to Plaintiff that Dr. Lazar could not review such files and that Plaintiff should keep his
ADHD diagnosis private.
With respect to Dr. Goldberg, Plaintiff alleges that he discussed his ADHD with Dr.
Goldberg on two occasions during the fall of 2009.

According to Plaintiff, the first

conversation took place during a scheduled advisory meeting for a group of students.

Plaintiff

claims that Dr. Goldberg asked the students to share with the group how their semester was
going and, in response, Plaintiff informed the group that he had just returned from academic
probation.

Plaintiff alleges that after the meeting, Dr. Goldberg pulled him aside and told him

to never discuss his struggles with his classmates because he could develop a reputation as
“damaged goods.” Plaintiff contends that he took Dr. Goldberg’s comments to mean that he
should not disclose his ADHD.

The second conversation allegedly took place during midterms

2

Plaintiff interned with Drs. Lazar and Sarkisian are work at the University’s NAC during the summer of 2006.
See Def.’s Ex. VV, Dr. Lazar’s Dep.

8

in the fall of 2009.

Plaintiff claims that he informed Dr. Goldberg of his struggles and strides

with ADHD in high school and college.

Plaintiff specifically alleges that he explained to Dr.

Goldberg that while he thought he did not need take this his medication in college the pressures
of being in the Program had made his condition a struggle again.

According to Plaintiff, Dr.

Goldberg told him that it was inappropriate for Plaintiff to discuss the matter at that time and that
Plaintiff’s behavioral problems were causing him to develop a bad reputation. Plaintiff contends
that he took Dr. Goldberg’s comments as yet another warning against disclosing his ADHD.
With respect to Dr. Shorey, Plaintiff claims that he informed Dr. Shorey of his condition
in the fall of 2010 after taking his comprehensive exams and that that Dr. Shorey did not
respond.
In addition to Plaintiff’s allegations regarding faculty members knowledge of his
condition, Plaintiff seems to assert that the University should have been aware of his condition
based on his behavioral problems throughout the Program, as well as his essay submitted with
his Admissions Application, which reads in pertinent part:
My desire to acquire a doctorate and pursue work in psychological assessment has
developed from the experiences I have had with psychology in my life. As early
as high school, I became familiar with psychology practice as I struggled with and
worked to overcome the problems I faced during adolescence. As an outgrowth of
family and individual problems, my parents encouraged me to attend a boarding
school to complete high school. My first exposure to psychology was a negative
one; I was rapidly cycled through medications and programs to help “fix” my
admittedly nonconforming behaviors.
See Def.’s Ex. C, Plaintiff’s Application for Admission.
Contrary to Plaintiff’s assertions, Widener contends that it did not become aware
of Plaintiff’s alleged disability until Plaintiff submitted his November 10, 2010 appeal
letter, in which he stated: “You may not be aware, as I have been avoidant in disclosing
9

this information, but I was diagnosed with ADHD.” See Def.’s Ex. HH, Plaintiff’s
November 10, 2010 Letter.
II.

STANDARD OF REVIEW
Summary judgment is appropriate if the movant establishes 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); Levy v. Sterling Holding Co., LLC, 544 F.3d 493, 501 (3d Cir. 2008). A
factual dispute between the parties will not defeat a motion for summary judgment unless it is
both genuine and material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986);
Dee v. Borough of Dunmore, 549 F.3d 225, 229 (3d Cir. 2008).

A factual dispute is genuine if

a reasonable jury could return a verdict for the non-movant, and it is material if, under the
substantive law, it would affect the outcome of the suit. See Fakete v. Aetna, Inc., 308 F.3d
335, 337 (3d Cir. 2002).

The moving party must show that if the evidentiary material of record

were reduced to admissible evidence in court, it would be insufficient to permit the non-moving
party to carry its burden of proof. See Celotex v. Catrett, 477 U.S. 317, 327 (1986).
Once the movant has carried its burden under Rule 56, "its opponent must do more than
simply show that there is some metaphysical doubt as to the material facts." Scott v. Harris,
550 U.S. 372, 380 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986)).

Under Rule 56(e), the opponent must set forth specific facts showing a

genuine issue for trial and may not rest upon the mere allegations or denials of its pleadings.
See Martin v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007). At the summary judgment stage, the
court's function is not to weigh the evidence and determine the truth of the matter, but rather to
determine whether there is a genuine issue for trial. See Jiminez v. All American Rathskeller,
10

Inc., 503 F.3d 247, 253 (3d Cir. 2007).

In doing so, the court must construe the facts and

inferences in the light most favorable to the non-movant.

See Matsushita, 475 U.S. at 587;

Horsehead Indus., Inc. v. Paramount Commc'ns, Inc., 258 F.3d 132, 140 (3d Cir. 2001).
III.

DISCUSSION

A.

Breach of contract
Both parties move for summary judgment on Plaintiff’s breach of contract claim.

Plaintiff’s motion for summary judgment on his contract claim is anchored on Widener’s alleged
failure to comply with its obligations established in the University’s policy manuals. Plaintiff
specifically asserts that Widener breached its contractual obligations when (1) failing to permit
Plaintiff to physically appear before the Faculty Board for a pre-termination hearing; (2) failing
to consider Plaintiff’s entire history and (3) failing to provide Plaintiff with a written remediation
plan before terminating him from the Program.

Widener avers that summary judgment should

be granted in its favor because the University correctly dismissed Plaintiff from the Program and
complied with all parameters established in its various publications.

According to Widener, the

University was not required to provide Plaintiff with a pre-termination hearing, Plaintiff’s entire
history in the Program was reviewed prior to his termination, and the Program provided Plaintiff
with several remediation plans during his tenure in the Program.
1. Pre-Termination Hearing
As a student in the Psy.D. Program, Plaintiff is afforded the protections of the Guidelines.
The Guidelines provide:
If a student fails any section for a second time, that student will be brought
before the faculty for review for continuation in the program. At this time,
other information, including any material the student wished to present,
will be considered.
11

See Guidelines, at p. 5.

Plaintiff contends that the Guidelines’ reference to a student being

“brought before the faculty” refers to the student himself appearing before the faculty prior to
being terminated.

Admittedly, the Court agreed with Plaintiff’s interpretation when denying

Widener’s motion to dismiss Plaintiff’s complaint. This Court specifically stated:
Under this Court’s reading of the Guidelines, Widener was contractually
required to bring Plaintiff before the faculty for review before turning to
the harsh remedy of expulsion. Indeed, the Guidelines’ language that the
“student will be brought before the faculty for review for continuation in
the program” implies that faculty review must take place before the
expulsion.
Instead of fulfilling this contractual duty, Widener expelled Plaintiff and
denied him his rights to a hearing, citing his failure to respond to an email
sent from an unknown email address and filtered automatically to his
“junk email” folder. Although Plaintiff was eventually provided with a
hearing, it occurred only after several appeals and after expulsion. It
would be unreasonable to read the contract as permitting a hearing under
such unfavorable circumstances to be sufficient under the terms of the
Guidelines.
See Ct. Order dated April 4, 2012.

However, having now been presented with record evidence

that reasonably supports Widener’s alternative construction of the disputed Guideline language,
the Court finds that a latent ambiguity exists and, accordingly, reserves for the jury the issue of
which competing construction is the correct one.
Pennsylvania Law on Contract Interpretation
The Third Circuit has acknowledged, “Pennsylvania law on contract interpretation and
ambiguity is somewhat complicated [.]” Bohler-Uddeholm America, Inc. v. Ellwood Group,
Inc., 247 F.3d 79, 92 (3d Cir. 2001).

Notwithstanding this complexity, courts agree that “[t[he

fundamental rule in contract interpretation is to ascertain the intent of the contracting parties,”
Ins. Adjustment Bureau, Inc. v. Allstate Ins. Co., 905 A.2d 462, 468 (Pa. 2006), and
12

“Pennsylvania contract law begins with the firmly settled point that the intent of the parties to a
written contract is contained in the writing itself,” Bohler-Uddeholm, 247 F.3d at 92.
Therefore, a contract that is unambiguous on its face must be interpreted by its content alone,
“unless the contract contains a latent ambiguity, whereupon extrinsic evidence may be admitted
to establish the correct interpretation.”

Id. at 96.

“[A] contract is not rendered ambiguous by the mere fact that the parties do not agree on
the proper construction.”
(3d Cir. 1995).

Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3D 604, 614

To determine whether a latent ambiguity exists in a contract, the court may

consider “the words of the contract, the alternative meaning suggested by counsel, and the nature
of the objective evidence to be offered in support of that meaning.”

Bohler-Uddeholm, 247

F.3d at 93 (citing Mellon Bank, N.A. v. Aetna Bus. Credit, Inc., 619 F.2d 1001, 1011 (3d Cir.
1980)).

The evidence relied upon to support a claim of latent ambiguity must be based on a

“contractual hook.”

That is, “the proffered extrinsic evidence must support an alternative

meaning of a specific term or terms contained in the contract, rather than simply support a
general claim that the parties meant something other than what the contract says on its face.”
Id.

“Furthermore, the alternative meaning that a party seeks to ascribe to the specific term in

the contract must be reasonable; courts must resist twisting the language of the contract beyond
recognition.”

Id.

Whether evidence of extrinsic circumstances is sufficient to create a latent ambiguity in a
contract is a matter of law for the court.

Once the court determines that a latent ambiguity

exists the question of what the parties intended by the language used in the contract – taking into
consideration the extrinsic facts and circumstances – is an issue to be submitted to the jury.
13

Id.

at 94 (citing Mellon Bank, 619 F.2d at 1011, 1013-14).
The Parties’ Interpretation of the Guidelines
As stated above, Plaintiff argues that the Guidelines’ reference to a student being
“brought before the faculty” unambiguously refers to the student himself appearing before the
faculty prior to being terminated.

In contrast, Widener asserts that the disputed language in the

Guidelines simply refers to the “student’s file” being brought before the faculty prior to
termination, and in no way requires that the University provide students with a pre-termination
hearing.

To support its alternative construction, Widener points to the language of the

Guidelines, as well as other University publications, such as the Graduate Student Handbook (the
“Handbook”) and the Manual for Clinical Psychology Students (the “Manual”).

This use of

other University publications comports with Pennsylvania law, which provides that “[w]here
several instruments are made as part of one transaction they will be read together, and each will
be construed with reference to the other.” Huegel v. Mifflin Construction Company, Inc., 796
A.2d 350, 354-55 (Pa. Super. 2002).3
Widener first points to the Guidelines, which provides that a student will be “brought
before the faculty for continuation in the program. At this time, other information, including any
material the student wished to present, will be considered.” (emphasis added) According to
Widener, placing the phrase “wished to present” in past tense indicates that the faculty would
review information previously provided by the student, which is reflected by the faculty’s
request that the student subject to review submit information to the faulty prior to the faculty
meeting.

This review process was established by several members of the faculty.

3

See Dr.

Under Pennsylvania law, “the contract between a private institution and a student is comprised of the written
guidelines, policies, and procedures as contained in the written materials distributed to the student over the course of
their enrollment in the institution.” See Swartley v. Hoffner, 1999 PA Super 168 (Pa. Super. Ct. 1999).

14

Wilhite Dep. at p.43:7-12; Dr. Brabender Dep. at p. 14-16; see also Def.’s Ex. BB, email sent
from Kenneth Goldberg to Jeffrey North on November 2, 2010 (requesting that Plaintiff submit a
letter requesting continuation in the program so that Dr. Goldberg could “present [his] situation
to the faculty on Monday, November 8, 2010.”)
Second, Widener points to the “Grievance Appeal Procedures” in the Manual, suggesting
that this particular section provides further clarification for ascertaining the University’s intent.
The Manual specifically provides that “[d]ecisions regarding termination from the program are
made by the core faculty” and, “[students] have the right to appeal any decision made by a
faculty member or group of faculty members using procedures outlined in the University Student
Handbook.” See Manual at p.14.

According to Widener, there is no mention of any student

involvement or participation in such determination and the process by which a student is
afforded a hearing is in the context of a termination appeal, not a pre-termination hearing.
Widener also points to the Graduate Student Handbook, arguing that its silence to any process
for a pre-termination hearing of an academic dismissal, despite being replete with sections
governing hearing rights and the hearing process, further supports its position that the University
is not contractually obligated to provide students, such as Plaintiff, with a pre-termination
hearing wherein the student physically appears before the core faculty.
Having fully considered Widener’s arguments, the Court finds that its alternative
construction of the disputed contract language is reasonable when considered in the context of
the other University publications, as well as the faculty members’ deposition testimony.

More

importantly, the extrinsic evidence that Widener relies upon sufficiently serves as a “contractual
hook,” as it directly relates to the University’s linguistic reference rather than its expectations.
15

Because Widener’s reading of the phrase cast doubt on Plaintiff’s interpretation, a latent
ambiguity exists and, necessarily, a decision as to which of the competing interpretations of the
contract is the correct one shall be reserved for the jury.
2. Faculty Review of Plaintiff’s Continuation in the Program
Next, Plaintiff contends that Widener breached its written contract when failing to
provide advance notice of the November 8, 2010 meeting, wherein the faculty reviewed his
continuation in the Program.

Specifically, Plaintiff alleges that he did not discover Dr.

Goldberg’s email, requesting that Plaintiff submit a letter for continuation in the program to be
presented at the November 8, 2010 meeting, until the evening of November 8, 2010 because it
was sent from an unknown email address and, consequently, relegated to his spam folder.
Plaintiff further contends that the University breached its contractual obligation when the faculty
failed to consider his entire file before making the decision to dismiss him from the Program.
Widener refutes Plaintiff’s claims, arguing that the Court should grant summary judgment in its
favor since Plaintiff was well aware of his jeopardized status and terminated after full review of
his academic and behavioral history in the Program.

Based on the record evidence, the Court

agrees with Widener.
First, aside from Plaintiff’s affidavit, there is nothing in the record to support his
allegation that he did not receive advance notice of the November 8, 2010 meeting due to Dr.
Goldberg’s email being sent to a spam folder.

See Betts v. New Castle Youth Dev. Ctr., 621

F3d 249, 252 (3d Cir 2010) (“Unsupported assertions, conclusory allegations, or mere suspicions
are insufficient to overcome a motion for summary judgment).

Moreover, the record evidence

directly contradicts Plaintiff’s claim that Dr. Goldberg’s email was sent from an “unknown”
16

email address.

As explained by Peter Shoudy, Chief Information Officer of the University, the

email address from which Dr. Goldberg’s email was sent to Plaintiff (“[e-mail]”)
is exactly equivalent to “[e-mail],” the email address Plaintiff believed
to be linked to Dr. Goldberg’s official account.

See Shoudy Dep, at p.7:21-25.

Additionally,

University logs demonstrate that Plaintiff has communicated with Dr. Goldberg using the
“kb001” address on multiple occasions dating back to 2008.
Shoudy Dep.

See Def.’s Ex. EE; see also

Based on the record evidence, the Court finds it very difficult to consider

Plaintiff’s accusations.4
To the extent Plaintiff’s contention is that his dismissal came to him as a complete
surprise, it is also important to note that the record clearly demonstrates that Plaintiff was well
aware of the fact that his continuation in the Program was under review since he failed the
comprehensive examination for a second time. The Guidelines specifically provide for review
of a student in the Program in the event of a second failure, see Guidelines, at p. 5, and this
process is orally communicated to students in the Program, see Def.’s Ex. M, Brabender Dep. at
11-15.

Moreover, when Dr. Wilhite informed Plaintiff that he did not pass all sections of the

comprehensive exam re-take, he further advised Plaintiff that he was “not eligible to elevate to
official candidacy for the doctoral of psychology degree” and “the conditions for [his] continuing
in the program [would] be reviewed by the faculty in the coming weeks.”

See Def.s Ex. Z.

Furthermore, Plaintiff fails to demonstrate how the faculty’s review of his history in the
Program was “short” and “one-sided.” Before making a decision to terminate Plaintiff from the
Program, the faculty reviewed a 6-page summary of Plaintiff’s academic and behavioral history
4

Plaintiff also fails to acknowledge that, in addition to Dr. Goldberg’s email to his University account, Dr.
Goldberg also sent an email to Plaintiff’s personal account, requesting that Plaintiff check his University account for
the email regarding the faculty meeting.

17

dating back to his first semester in the Program.

The mere fact that the faculty chose not to

review the actual file documents, but rather a comprehensive summary of the file, does not, in
and of itself, create a breach, especially where Plaintiff has not alleged that the summary
excluded pertinent information.

Plaintiff does allege that the faculty’s review did not include

his recommendation letters for admittance into the Program.

However, the Court finds it

difficult to ascertain how these particular letters have any bearing on Plaintiff’s “overall
adjustment to graduate school, [his] classroom behavior, [his] use of advisement and supervision,
and [his] performance in the field placement,” see Manual, Section F. at p. 10, and Plaintiff fails
to offer any explanation.

Accordingly, summary judgment with respect to this issue will be

granted in favor of the defendant.
3. Formal Remediation Plan
The final basis for Plaintiff’s breach of contract claim is Widener’s alleged failure to
provide Plaintiff with a written remediation plan to help him pass the comprehensive
examination. Plaintiff asserts that this contractual obligation is established in the Manual, which
states:
In those rare instances in which a student demonstrates over the
course of the program difficulties that are persistent, severe, or
both, the program may require that the student obtain additional
information to enable faculty to render an appropriate decision
concerning the student . . . based on the information obtained, a
remediation plan will be developed.
Widener contends that, contrary to Plaintiff’s claim, the Manual does not require the
University to provide a written remediation plan in response to a student’s failure of the
comprehensive examination and that the faculty adequately addressed Plaintiff’s difficulties
when providing him with multiple remediation plans over the course of his tenure in the
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Program.

Again, the Court agrees with Widener.

The Manual specifically provides that where a student demonstrates severe or persistent
difficulties the program “may” require that the student obtain additional information for the
program so that a remediation plan can be developed.

Plaintiff’s claim that the Manual

mandates the development of a remediation plan directly contradicts the insertion of the
permissive term “may.”

As Widener correctly points out, this particular clause is “worded very

loosely providing for suggested courses of action depending upon a particular student’s needs.”
(Def’s Br. at p. 17) Hence, it was at Widener’s discretion whether to develop a remediation
plan for Plaintiff upon failing the exam for a second time, and Widener’s decision to not provide
Plaintiff with one prior to terminating him does not warrant a breach of contract.

Plaintiff’s

mere displeasure with how Widener used its discretion is insufficient to establish a breach of
contract.

Accordingly, summary judgment with respect to this issue will be granted in

Widener’s favor.
B.

Section 504 of the Rehabilitation Act of 1973
Widener moves for summary judgment on Plaintiff’s claim under Section 504 of the

Rehabilitation Act, arguing that it had no knowledge of Plaintiff’s alleged disability.

The

purpose of Section 504 is to prohibit discrimination on the basis of a disability in schools that
receive federal funding.

29 U.S.C. § 794 (a).

In order to establish a violation of Section 504,

the plaintiff must prove that (1) he is disabled; (2) he is otherwise qualified; (3) the school
received federal financial assistance; and (4) he was excluded from participation in, denied
benefits of, or subject to discrimination at the school. Ridgewood Board of Education v. N.E.
ex rel. M.E., 172 F.3d 238, 253 (3d Cir. 1999).

Additionally, the plaintiff must demonstrate
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that the school knew or should have known of the plaintiff’s disability, but the plaintiff need not
prove that the defendant’s discrimination was intentional.

Id.

The only element that the parties appear to contest is whether Widener knew or should
have known of Plaintiff’s disability. Plaintiff claims that he told several Widener employees
about his ADHD and that, although he was otherwise qualified to remain in the Program,
Widener never offered him a written remediation plan prior to his termination because of his
ADHD. Widener denies Plaintiff’s allegations, arguing that it was in no position to discriminate
against Plaintiff on the basis of his alleged disability because Plaintiff never mentioned,
disclosed, or alluded to having ADHD until after his dismissal from the Program.
Based on the record evidence, Plaintiff fails to offer sufficient evidence to create an issue
of fact about whether Widener knew or could be reasonably expected to know that he suffered
from ADHD.

First, while Plaintiff offers his affidavit and deposition testimony setting forth

numerous occasions in which he allegedly disclosed his ADHD to Widener representatives, he
fails to produce any evidence in support of these allegations.

Certainly, the Court is cognizant

of the fact that in deciding a motion for summary judgment “it is not the role of the trial judge to
weigh the evidence and determine the truth of the matter,” but neither may a plaintiff
“manufacture an issue of disputed fact by relying upon mere allegations, general denials, or []
vague statements.” Stiles v. Synchronoss Techs., Inc., No. 07-1923, 2008 U.S. Dist. LEXIS
61565, at *3 (E.D. Pa. Aug. 12, 2008) (internal quotations and citations omitted).

Simply put,

Plaintiff cannot rely on his own self-serving statements to survive a motion for summary
judgment.

Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990); see also

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (“The mere existence of a scintilla of
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evidence in support of the [plaintiff’s] position will be insufficient; there must be evidence on
which the jury could reasonably find for the [plaintiffs]”).
Second, aside from Plaintiff’s affidavit and deposition testimony, all of the record
evidence suggests that Widener was not made aware of Plaintiff’s disability until after his
dismissal.

Not only does every faculty member to whom Plaintiff claims his ADHD was

disclosed to deny any such knowledge or disclosure,5 but even Plaintiff contradicts his own
deposition testimony when he admits to the Program faculty that he had kept his condition
private.

In his November 10, 2010 appeal letter submitted to the faculty, Plaintiff states: “You

may not be aware, as I have been avoidant in disclosing this information, but I was diagnosed
with ADHD.” See Def.’s Ex. HH.

As noted by Widener, “it is clear from North’s own words

that he avoided the disclosure of his ADHD to the University, and as such, the University cannot
be found liable for discriminating against a disability in which it was not aware.” Def.’s Br., at
p. 29.

Further, the Rehabilitation Act does not require Widener to reconsider its decision to

dismiss Plaintiff simply because Plaintiff subsequently informs the University of his condition.
See Leacock v. Temple Univ. Sch. of Med., 1998 U.S. Dist. LEXIS 18871, at *10 (E.D. Pa. Nov.
25, 1998).
Third, the Court does not find that Widener could have reasonably known of Plaintiff’s
alleged disability based solely on his behavioral problems and admission essay.

Because

ADHD is a disability that is not visibly obvious and largely characterized by difficulties that
even non-disabled persons may suffer from, the Court finds it difficult to conclude that
Plaintiff’s issues concerning professionalism, timeliness, and class attendance should have put
5

By affidavit or deposition, all the faculty members allegedly aware of Plaintiff’s ADHD denied any such
knowledge. See Def.’s Ex. B (Dr. Gillespie’s Aff.); Def.’s Ex. VV (Dr. Lazar’s Dep.); Def.’s Ex. UU (Dr.
Goldberg’s Dep.); Def.’s Ex. V (Dr. Shorey’s Dep.).

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Widener on notice of his struggles with ADHD. The same rationale also goes for Plaintiff’s
admission essay where Plaintiff states that he was ““rapidly cycled through medications and
programs to help ‘fix’ [his] admittedly non-conforming behavior.”

While the Court does not

ignore the fact this statement may reasonably allude to Plaintiff having an emotional or
behavioral problem, this statement alone is not so clear as to reasonably expect Widener to know
that Plaintiff suffered from an actual disability, such as ADHD, especially where Plaintiff admits
to purposely avoiding disclosure of his condition during his matriculation in the Program.
Last, Plaintiff argues that Widener’s allegedly favorable treatment of non-disabled
students show that the faculty discriminated against him because of his disability. As noted
above, the University cannot be found to have discriminated against a disability in which it was
not aware.

Moreover, the mere fact that non-disabled students were permitted to remain in the

Program and Plaintiff was not is not dispositive, especially where the record suggests that these
students may not have been similarly-situated to Plaintiff.

Nonetheless, having determined that

Widener did not know or could not have been reasonably expected to know that Plaintiff
suffered from ADHD, the Court finds this issue to be moot.

As such, summary judgment with

respect to Plaintiff’s claim under the Rehabilitation Act is granted in Widener’s favor.
IV.

CONCLUSION
For the foregoing reasons, both parties’ motions are denied with respect to Plaintiff’s

claim that Widener breached its contractual obligations when failing to provide Plaintiff with a
pre-termination hearing and Widener’s motion for summary judgment is granted with respect to
all other claims.

An appropriate order follows.

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