NORTH v. WIDENER UNIVERSITY
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE PETRESE B. TUCKER ON 4/2/12. 4/4/12 ENTERED AND COPIES E-MAILED.(mbh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
April ____, 2012
Presently before this Court is Defendant Widener University’s (“Widener” or
“Defendant”) Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. 3)
and Plaintiff Jeffrey North’s (“Plaintiff” or “North”) Response in opposition thereto (Doc. 6.)
This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and 1367(a). Venue is proper
under 28 U.S.C. § 1391(a)(1) and (2). Upon consideration of the parties’ motions with briefs and
exhibits,1 this Court will deny Defendant’s Motion to Dismiss.
This case arises from Plaintiff’s expulsion from the Doctorate of Psychology (“Psy.D.”)
program (the “Program”) at Widener. Plaintiff submits that he suffers from Attention Deficit
On a motion to dismiss, a district court may consider documents “‘integral to or explicitly
relied upon in the complaint . . . without converting the motion [to dismiss] into one for summary
judgment.’” In re Burlington Coat Factory Sec. Litig., 114 F. 3d 1410, 1426 (3d Cir. 1997)
(citation omitted) (second alteration in original). Plaintiff has submitted documents that he
explicitly relies on and are integral to his breach of contract theory. Accordingly, the Court will
consider these documents on this Motion.
Hyperactivity Disorder (“ADHD”) and that his expulsion was a result of discrimination based on
this condition. The relevant facts giving rise to his expulsion are as follows.
During the Summer of 2005, Plaintiff resided at the home of a close family friend, Dr.
Robert Gillespie, an adjunct professor in the Program. (Doc. 1, ¶ 7; Doc. 4 at 1.) In August
2006, Plaintiff applied to the Program and was accepted. (Doc. 1, ¶ 8.) He submits that Dr.
Gillespie has been aware of his ADHD for many years, but told him not to disclose it to the
faculty because it would be regarded as a “sign of weakness and unsuitability for the program.”
(Doc. 1, ¶ 8; Doc. 4 at 2.) Once enrolled in the Program, Plaintiff was assigned Dr. Kenneth
Goldberg to serve as his faculty advisor. (Doc. 1, ¶ 9.)
Plaintiff struggled during his first year, earning a grade point average of 2.9, resulting in
academic probation. (Doc. 1, ¶ 11.) Plaintiff also struggled behaviorally. On or about May 21,
2007, his professor, Dr. Barbara Goldsmith, submitted to her superiors a book containing some
of Plaintiff’s drawings, complaining that these drawings represented Plaintiff’s “strange
behavior” in the Program. (Doc. 1, ¶ 12.) After a series of probations and subsequent returns to
good academic standing, Plaintiff took a leave of absence in 2008. (Doc. 1, ¶¶ 13-15.) Plaintiff
returned in good standing to begin his third year in 2009. (Doc. 1, ¶ 16.)
Further academic and behavioral difficulties arose in his third year. In March 2010,
Plaintiff was again placed on academic probation. (Doc. 1, ¶ 18.) Plaintiff alleges that the
reason was “the faculty’s vague displeasure with his supposedly unusual behavior stemming
from his ADHD.” (Doc. 1, ¶ 18.) One such instance occurred in May 2010, when Plaintiff and a
group of students were studying in a classroom when a faculty member asked them to leave. A
misunderstanding ensued, “causing a rift” with the faculty member. (Doc. 1, ¶ 19.) In June
2010, Plaintiff took his third-year qualifying exam and passed six of the seven sections. (Doc. 1,
¶ 22.) Widener scheduled Plaintiff to retake his deficient section on October 23, 2010. (Doc. 1,
¶ 25.) On October 18, 2010, Plaintiff’s grandfather passed away and the memorial service was
held on October 23, 2010. (Doc. 1, ¶ 25.) Widener refused to reschedule Plaintiff’s exam until
Plaintiff presented written proof that his grandfather had actually died; only then did Widener
agree to reschedule the exam for October 26, 2010 and October 28, 2010. (Doc. 1, ¶ 26.)
Plaintiff passed half of the exam, but failed the other half by one point. (Doc. 1, ¶ 27.) Plaintiff
had one point deducted for “incorrect clause structure” and another for improper use of the word
“but.” (Doc. 1, ¶ 44.)
On November 2, 2010, Dr. Goldberg sent Plaintiff an email, not from his official Widener
email, but from an unknown email address he never used before in communicating with Plaintiff.
(Doc. 1, ¶ 29.) In it, he requested that Plaintiff ask him in writing for leave to continue in the
Program by November 5, 2010. (Doc. 1, ¶ 29.) Because Plaintiff’s email system did not
recognize Dr. Goldberg’s email address, the system automatically placed the email in his “junk
mail” folder and Plaintiff did not read it until Monday, November 8, 2010. (Doc. 1, ¶ 30.) That
same day, Defendant expelled Plaintiff from the Program, citing his failing score, his failure to
ask Dr. Goldberg to remain in the Program, and his “previous history of problematic behavior.”
(Doc. 1, ¶ 31.)
On November 8, 2010, Plaintiff wrote a letter asking to remain in the Program. (Doc. 1, ¶
33.) This letter was apparently the first time Plaintiff officially notified Widener of his ADHD.
(See Doc. 1, ¶¶ 32-33.) He also proposed to retake the portion of the section of the exam he
failed, noting that approximately five of his peers (twenty percent of the class) also failed to pass
the retake exam, but that Widener allowed them to continue in the program. (Doc. 1, ¶¶ 32-33.)
By letter dated November 19, 2010, Plaintiff appealed his termination from the Program. (Doc.
1, ¶ 34.) On November 22, 2010, the faculty met behind closed doors to reject Plaintiff’s appeal.
(Doc. 1, ¶ 37.)
On December 10, 2010, Plaintiff, through counsel, appealed again, asserting that his
termination constituted illegal disability discrimination. (Doc. 1, ¶ 38.) Defendant responded
that same day, notifying Plaintiff that the Academic Council would consider his appeal on
December 16, 2010. (Doc. 1, ¶ 45.) Three days later, on December 13, 2010, Defendant
demanded Plaintiff resubmit his appeal without the assistance of counsel. (Doc. 1, ¶ 45.) On
December 14, 2010, Plaintiff responded by requesting the basis for his termination; he also
demanded the right to counsel at his appeal meeting and for permission to question his accusers.
(Doc. 1, ¶ 46.) On December 15, 2010, Defendant responded by rejecting all of Plaintiff’s
requests. (Doc. 1, ¶ 46.) On December 16, 2010, Plaintiff, by himself, attended a meeting with
the Academic Council. (Doc. 1, ¶ 47.) By letter dated December 20, 2010, Defendant again
rejected Plaintiff’s appeal. (Doc. 1, ¶ 47.)
Plaintiff appealed his termination to the Academic Review Board, which met in secret on
January 18, 2011 to discuss the appeal, which was again rejected. (Doc. 1, ¶¶ 47-48.) Plaintiff
then filed a complaint with the U.S. Department of Education, Office of Civil Rights (the
“OCR”). (Doc. 1, ¶ 49; Doc. 1-1.) By decision dated July 25, 2011, the OCR rejected Plaintiff’s
complaint. (Doc 1, ¶ 49; Doc. 1-1.)
On September 23, 2011, Plaintiff initiated the instant action. (Doc. 1.) The Complaint
alleges two counts: (1) Violation of Section 504 of the Rehabilitation Act of 1973; and (2)
Breach of Contract. (Doc. 1, ¶¶ 51-64.)
STANDARD OF REVIEW
On a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6), the court is required to accept as true all allegations in the complaint and all
reasonable inferences that can be drawn therefrom, and to view them in the light most favorable
to the non-moving party. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384
(3d Cir. 1994). A complaint should be dismissed only if the alleged facts, taken as true, fail to
state a claim. See In re Warfarin Sodium Antitrust Litig., 214 F.3d 395, 397-98 (3d Cir. 2000).
The question is whether the claimant can prove any set of facts consistent with his or her
allegations that will entitle him or her to relief, not whether that person will ultimately prevail.
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Semerenko v. Cendant Corp., 223 F.3d 165, 173
(3d Cir. 2000).
While a court will accept well-pled allegations as true for the purposes of the motion, it
will not accept bald assertions, unsupported conclusions, unwarranted inferences, or sweeping
legal conclusions cast in the form of factual allegations. Morse v. Lower Merion Sch. Dist., 132
F.3d 902, 906 (3d Cir. 1997). The United States Supreme Court has recognized that “a plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original). In Twombly, the
Court made clear that it would not require a “heightened fact pleading of specifics,” but only
“enough facts to state a claim to relief that is plausible on its face.” Id. at 570. A “pleader is
required to ‘set forth sufficient information to outline the elements of his claim or to permit
inferences to be drawn that these elements exist.’” Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d
Cir. 1993) (citation omitted).
In 2009, the United States Supreme Court revisited the requirements for surviving a
12(b)(6) motion to dismiss in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). In Iqbal, the Court made
clear that “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements [will] not suffice” to defeat a Rule 12(b)(6) motion to dismiss. 129 S. Ct.
at 1949. “[O]nly a complaint that states a plausible claim for relief [will] survive a motion to
dismiss.” Id. at 1950.
In light of the decision in Iqbal, the Third Circuit set forth a two-part analysis to be
applied by district courts when presented with a 12(b)(6) motion. First, the court must separate
the legal elements and factual allegations of the claim, with the well-pleaded facts accepted as
true but the legal conclusions disregarded. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11
(3d Cir. 2009). Second, the court must determine whether the facts alleged in the complaint
demonstrate that the plaintiff has a “plausible claim for relief.” Id. at 211 (citation omitted). If
the court can only infer the mere possibility of misconduct, the complaint must be dismissed
because it has alleged, but has failed to show, that the pleader is entitled to relief. Id.
Count One: Violation of Section 504 of the Rehabilitation Act of 1973
Plaintiff alleges that Defendant violated Section 504 of the Rehabilitation Act (“Section
504”). Section 504 provides:
No otherwise qualified individual with a disability in the United
States, as defined in [section 705(20) of this title], shall, solely by
reason of her or his disability, be excluded from the participation in,
be denied the benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial assistance . . . .
29 U.S.C. § 794(a). To prove a violation of Section 504, a plaintiff must demonstrate that: (1) he
is an individual with a disability; (2) he is “otherwise qualified” to receive the benefit in
question; (3) he was denied the benefits of the program solely by reason of his disability; and (4)
the program receives federal financial assistance. See Wagner v. Fair Acres Geriatric Ctr., 49 F.
3d 1002, 1009 (3d Cir. 1995).
Plaintiff indisputably meets the first and fourth prongs of the test: he has submitted that
he suffers from ADHD, a recognized disability under Section 504, see C.H. v. Cape Henlopen
Sch. Dist., 606 F.3d 59, 62 (3d Cir. 2010), and Widener receives federal financial assistance.
Plaintiff also meets the second prong of the test because the Complaint, taking the facts as
true as this Court must do for purposes of this Motion, states a claim that Plaintiff is “otherwise
qualified” for enrollment in the Program. For purposes of Section 504, “an otherwise qualified
person is one who is able to meet all of the program’s requirements in spite of his handicap.”
Southeastern Cmty. Coll., 442 U.S. 397, 406 (1979). As spelled out in the Complaint, when
Plaintiff was expelled in the fall of 2011, he was in good academic standing. If his retake exam
had been one point higher, no grounds would exist for expulsion. Certain deductions on his
exam—one point for “incorrect clause structure” and another point for using the word
“but”—seem minor and subjective. Although such deductions might well be within the faculty’s
professional discretion, five of Plaintiff’s similarly situated, non-disabled peers—twenty percent
of the class—failed one or more sections of the retake exam but were not deemed unqualified for
the Program. Thus, Plaintiff has sufficiently pled that he was “otherwise qualified” for the
Program, i.e., able to meet all of the program’s requirements in spite of his handicap—at least if
he is judged according to the same standard with which Defendant judged his peers.
Plaintiff also meets the third prong as the facts, taken as true, suggest that he was denied
the benefits of the Program solely by reason of his disability. This is evidenced by how Plaintiff
was treated as compared to his similarly-situated, non-disabled peers. Again, rather than allow
Plaintiff another retake exam—as Defendant did with Plaintiff’s peers—Defendant expelled
Plaintiff without a hearing. Unlike Plaintiff’s peers, who received adequate notice of
proceedings held to remedy their insufficient scores, Plaintiff was provided with only three days’
notice to request a hearing to remain in the Program. For some unknown reason or reasons,
notice was provided by an email address that Dr. Goldberg—Plaintiff’s own faculty
advisor—had never used to communicate with him before. When this email was automatically
filtered to Plaintiff’s “junk mail” file, no one followed up with him. Instead, Widener notified
Plaintiff that he was expelled, citing his failure to request a hearing. Defendant further supported
its decision to expel Plaintiff by referring to “strange behavior,” and the like. Accepting these
facts as true, and drawing all reasonable inferences in the light most favorable to the non-moving
party, Plaintiff has sufficiently pled that he was discriminated against solely by reason of his
disability. Of course, it is entirely possible that Defendant, through discovery, may establish
different grounds for the treatment of which Plaintiff complains, but at this stage of the litigation,
it has not.
Defendant’s argument that Plaintiff cannot sustain a cause of action under Section 504
because he never officially notified Widener of his condition is off the mark.2 (See Doc. 3.)
Defendant would indeed be correct that official notification would be required if Plaintiff’s claim
were for failure to provide reasonable accommodations. See Shamonsky v. Saint Luke’s Sch. of
Nursing, et. al., 2008 U.S. Dist. LEXIS 20426, at *10-11 (E.D. Pa. March 17, 2008) (citing
Leacock v. Temple Univ. Sch. of Med., 1998 U.S. Dist. LEXIS 18871, at * 10 (E.D. Pa. 1998);
see also Nathanson v. Medical Coll. of Pa., 926 F. 2d 1368, 1381 (3d Cir. 1991). Almost by
definition, “[f]or a school to be able to make reasonable accommodations for a student, it must
have knowledge that such accommodations are required.” Leacock, 1998 U.S. Dist. LEXIS
18871, at * 10. Plaintiff’s claim, however, is not based on reasonable accommodations, but on
disability discrimination; nothing in Section 504 requires a student with a disability to provide
official notification of his condition in order to state a claim for disability discrimination.
The issue in this case—a disability discrimination case—is not whether Widener had
official notification of Plaintiff’s disability, but whether the faculty knew or had reason to know
of Plaintiff’s disability and discriminated against him solely on that basis. See Nathanson, 926
F.2d at 1381. The Complaint states that at least three3 members of the faculty had actual
knowledge of Plaintiff’s disability when he was expelled. The Complaint further states that Dr.
Defendant makes this argument by way of Plaintiff’s November 10, 2010 letter, which states
“you may not be aware, as I have been avoidant in disclosing this information, but I was
diagnosed with ADHD.” (Doc. 3 at 4-5.) This letter, however, demonstrates nothing more than
Plaintiff’s reluctance to reveal his condition. It does not, as Defendant suggests, establish that
Plaintiff never gave notice, official or otherwise, to anyone at Widener.
In the Complaint, Plaintiff submits that he notified “Dr. Gillespie, Dr. Goldberg and other
Widener professors and administrators that he suffered from ADHD.” (Doc. 1, ¶ 55.)
Plaintiff’s reference in his Brief (Doc. 4) to a third professor, Dr. Lazar, “clarified” the wellpleaded allegations in the Complaint. See Pegram v. Herdrich, 530 U.S. 211, 229, n. 10 (2000).
Specifically, it clarified who some of the “other Widener professors and administrators” were.
Gillipse warned Plaintiff not to disclose his condition to the faculty because it would be regarded
as a “sign of weakness and unsuitability for the program,” suggesting that the Program suffered
from a culture of discrimination. Taken together, all of this plausibly suggests that Defendant
had knowledge of Plaintiff’s disability and discriminated against him solely on that basis. Thus,
Plaintiff states a claim for disability discrimination and the Motion to Dismiss Count I is denied.4
Count Two: Breach of Contract
Plaintiff’s second claim is for breach of contract. Pennsylvania defines the relationship
between a privately funded college and a student as contractual in nature. Reardon v. Allegheny
Coll., 926 A.2d 477, 481 (Pa. Super. Ct. 2007). Accordingly, this Court’s role is to review
administrative materials and student handbooks under ordinary principles of contract law as
would be done in any other agreement between two private parties. See Id.
Under Widener’s Guidelines for the Third Year Qualifying Examination (the
“Guidelines”), its policy is that “[i]f 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 that student wished [sic] to present, will be considered.”
(Doc. 4-3, at 5) (emphasis added). The facts as alleged establish that Widener failed to comply
with this provision of its Guidelines.
Defendant’s reliance on Shamonsky v. Saint Luke’s Sch. of Nursing, 2008 U.S. Dist. LEXIS
20426, at *10-11 (E.D. Pa. March 17, 2008) for its lack-of-official-notice argument is also
misplaced. In that case, the court observed that “[w]here a student has failed to show that the
school was aware of her disability at the time she was terminated, the student has failed to state a
claim.” The court’s statement of the law is correct, but the facts of that case are inapposite. The
only facts in Shamonsky to suggest that the faculty had knowledge of plaintiff’s learning
disability were “poor admissions test scores” and “a passing remark by a teacher.” Id. In this
case, Plaintiff has greater facts—in both quantity and import—to make the claim of faculty
As a cannon of statutory interpretation—and as a matter of sound policy—the Court must
resolve any ambiguities in a contract in favor of the non-drafting party. Devcon Int’l Corp. v.
Reliance Ins. Co., 609 F.3d 214, 218 (3d Cir. 2010). The non-drafting party here, of course, is
Plaintiff. 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 expulsion.
(Doc. 4-3 at 5) (emphasis added). Instead of fulfilling this contractual duty, Widener expelled
Plaintiff and denied him his right 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. Thus, Plaintiff has
stated a claim for breach of contract for Defendant’s failure to provide him with a hearing
commensurate with the contractual requirements of the Guidelines.
Moreover, Widener breached its contract with Plaintiff by failing to provide a
remediation plan. As per Widener’s Pys.D. Student Manual (the “Manual”):
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 the faculty to render an appropriate decision
concerning the student . . . . Based on the information obtained, a
remediation plan will be developed. (Doc. 4-2 at 12-13) (emphasis
In Plaintiff’s case, no remediation plan was developed. This Court has already outlined the
manner in which Plaintiff was expelled and need not revisit that series of events except to point
out that it was not in accordance with the terms of the Manual. Accordingly, Plaintiff has stated
a claim for breach of contract for Widener’s failure to develop a remediation plan as
contractually required by the Manual.5
In its Brief, Defendant argues that “‘[w]here there is academic dismissal, as in the present
case . . . courts are ill-equipped to review the largely subjective academic appraisals of the
faculty.’” (Doc. 3 at 10) (quoting Leacock, 1998 U.S. Dist. LEXIS 18871, at *15 (citation
omitted). While Defendant may indeed be correct about this statement of the law and the courts’
role in cases of academic dismissals, this Court is not reviewing the academic appraisals of the
faculty, but has reviewed the terms of the contract and finds that the facts as alleged state a claim
for breach of contract. At this stage of the litigation, it is unnecessary for the Court to consider
whether the faculty’s decision was proper as Defendant suggests or whether, as Plaintiff alleges,
was “‘a substantial departure from accepted academic norms.’” (Doc. 4 at 14) (quoting Regents
of the Univ. of Mich. v. Ewing, 474, U.S. 214, 225 (1978)). Plaintiff has stated a claim for
breach of contract and Defendant’s Motion to Dismiss Count II is denied.
Plaintiff’s allegation that Widener breached its contract by imposing interim sanctions on him
without providing “oral or written” notice is flawed by an out-of-context reading of the Graduate
Student Handbook. Although Plaintiff is correct that he would be required to be given notice if
interim sanctions were imposed on him, they were not. Interim sanctions refer to sanctions
imposed when “university officials judge a student to pose a threat to himself, herself, or the
community, or where the student has been charged with a crime of a serious nature.” (Doc. 5 at
30.) This is not the type of situation where interim sanctions would be appropriate and they were
not imposed. Therefore, this breach of contract theory fails. In addition, this Court finds
Plaintiff’s argument that Widener breached its contract with him by failing to offer an additional
paid practicum year to be incorrect. (Doc. 4 at 13.) Such an offer could be made by Widener
only if Plaintiff had failed three or more sections of the Examination, which he did not. (Doc 4-3
For the foregoing reasons, Defendant’s Motion to Dismiss the Complaint will be denied.
An appropriate order follows.
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