Driscoll v. Bryant University et al

Filing 47

MEMORANDUM AND ORDER granting 32 Motion for Summary Judgment - So Ordered by District Judge John J. McConnell, Jr. on 8/7/2019 (Barletta, Barbara)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

CHRISTOPHER DRISCOLL,
Plaintiff,

v.
BRYANT UNIVERSITY and JAY
AMRIEN,
Defendants.

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C.A. No. 16·633·JJM·LDA

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MEMORANDUM AND ORDER
JOHN J. MCCONNELL, JR., United States District Judge.
Christopher Driscoll is a former Physician's Assistant ("PA") 1 student at
Bryant University.

After the school and the program director, Jay Amrien,

decelerated2 him for poor performance, Mr. Driscoll brought this suit alleging
disability discrimination and breach of contract. Bryant University and Mr. Amrien
(collectively "Bryant") now move for summary judgment. ECF No. 32. Because the
Court finds that Bryant did not violate the Americans with Disabilities Act ("ADA'')
or the Rehabilitation Act, and did not breach its contract with Mr. Driscoll, the Court
GRANTS the Defendant's Motion for Summary Judgment.

"A PAis a medical professional who works with a physician as part of a
healthcare team." ECF No. 33·2 at 5. A PA performs a variety of tasks, including
physical exams, test ordering, diagnoses, medication prescriptions, and various
medical procedures. I d.
2 Rather than being dismissed, a decelerated student is "held back" and must
re·take the failed course at its next offering before being able to proceed in the
program. Id. at 22.
1

I.

BACKGROUND
In 2015, Bryant accepted Mr. Driscoll into its PA Program. ECF No. 39 at 5·

6,

~

24. Bryant's PA Program is rigorous and involves frequent testing, about one

exam every week, on many subjects. Id. at 1·2,

~~

1·6. To proceed through the

program, students must maintain a 3.0 GPA (75% or greater). Id. at 2, ~ 8. If a
student fails to obtain a 3.0 GPA for a term, that student will be placed on academic
probation. ECF No. 33·2 at 20. If the student fails to attain the necessary 3.0 GPA
for two terms, that student is subject to dismissal. Id. Despite, or perhaps because
of the program's rigors, the school offers a generous remediation program that gives
struggling students many ways to correct failing grades. ECF No. 39 at 3,

n

9·11.

When a student fails a test, academic support is notified, and the student meets with
faculty to address the issue. ECF No. 33·2 at 21. Further, the student may take a
remediation test3 and if the student passes the test, the failing grade will be replaced
with a 75% (the minimum passing grade). Id.
If a student fails an entire course, that student is placed on academic probation

and must take a comprehensive course exam. Id. Failure of this exam results in
deceleration. I d. Only two courses may be remediated during a single term and more
than two failed courses within a term will result in dismissal from the program. I d.

3 This test, more like a homework assignment, is created by the professor and
contains content like that of the failed exam. ECF No. 40·3 at 4·5,
15·24, 1·8. A
student can remediate a maximum of two tests each term. ECF No. 33·2 at 21.

n

2

Mr. Driscoll did not begin his time at Bryant under the best circumstances. 4
During Mr. Driscoll's first term he failed three out of fourteen total exams (see ECF
No. 35·15) and finished the term with a 2.86 GPA (ECF No. 33·16). A month into his
second term, the Academic Support and Remediation Committee placed Mr. Driscoll
on academic probation.

Id.

Several weeks later, Mr. Driscoll requested an

accommodation for his Attention Deficit Hyperactivity Disorder ("ADHD"). ECF No.
39 at 13, ,[,[ 59·60. Bryant responded and, upon receipt of a doctor's note, promptly
granted Mr. Driscoll an accommodation of time·and·a·half for each exam. I d. at 13·
14,

~~

62·66. Bryant made clear to Mr. Driscoll that it was his "responsibility to meet

with professors to make practical arrangements for each accommodation." ECF No.
33·19.

Bryant emphasized that "[f]aculty members are not required to provide

accommodations unless the student follows through on all arrangements within the
established timeframes." Id.
The PA Program's daily schedule was intense, with classes and exams being
held in back·to·back time slots.

Therefore, the time·and·a·half accommodation

affected Mr. Driscoll in a specific way: If he used his accommodation, he would miss
part of the group exams5 (ECF No. 39 at 14, ~ 67), these allowed students to re·take
the exam as a group right after taking it alone.

Id. at 4, ,[,[15·17. The groups had

Mr. Driscoll's application listed many falsehoods, including medals and
ribbons that he did not earn and accomplishments and experiences in combat that he
did not have. ECF No. 39 at 6·7, ~~ 26·34. Bryant learned about these falsehoods
but continued to work with Mr. Driscoll even though they could have dismissed him
on those grounds. See ECF No. 33·14.
5 This practice was terminated in Mr. Driscoll's final term. ECF No. 39 at 5, ,[
22.
4

3

the opportunity to receive additional points on their own exams if the group did well.6
ECF No. 39 at 5, ,[ 21. Mr. Driscoll received whatever points his group earned, but
often missed some of the group exams. He raised no concern about the practical
arrangement of his accommodation with his professors or P A Program staff, there is
transcript evidence where he complained to Professor Christopher Furbee about the
general rigors of the program and Professor Furbee responded that the schedule
structure could not be changed. ECF No. 33·22 at 22,

~,[

2·25; ECF No. 40·4 at 8,

~,[

10·17.
Mr. Driscoll also alleges that he was twice denied his time·and·a·half
accommodation. Once he had to leave his Urology exam without the extra half· hour
accommodation because a Psychiatry group presentation was scheduled to begin
right after the exam. Id. at 15,

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71. He failed the exam with a 74%. ECF No. 33·15

at 6. Mr. Driscoll also alleges that Bryant did not give him his accommodation for
another exam, but merely cites his own deposition as evidence of this allegation. ECF
No. 40 at 5·6, ,[,[ 43, 50·51.
Mr. Driscoll failed ten out of the fifteen exams during his second term.7 See
ECF No. 33·15. Ultimately, for his second term, after the two failing grades were
remediated, Mr. Driscoll finished the term with a 2.92 GPA, short of the 3.0 GPA
required to progress in the program. ECF No. 39 at 16,

,I 75.

Mr. Driscoll entered

6 If the group earned a 90·93%, the individuals each received another point on
their exam, if the group earned a 94·96% two more points, and if the group earned a
97% or above, each student earned three points. ECF No. 39 at 5, ~ 21.
7 Six of those failures occurred before the accommodation was granted.
4

his third and final term on academic probation. ECF No. 33·20. For this term, Mr.
Driscoll had his full accommodation for every exam. 8• 9 Mr. Driscoll's third semester
went no better than his first two and he failed eleven out of eighteen exams. See ECF
No. 33·15. In Clinical Medicine Three, Mr. Driscoll failed five of six exams. ECF No.
39 at 16,

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76.

Mid·way through his final term, Mr. Driscoll met with his advisor (Professor
Christopher Furbee) and the Program Manager (Kayla Cetrone) to discuss his
performance in Clinical Medicine Three. Id at 17,

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80·81. For the first time, Mr.

Driscoll told Professor Furbee and Ms. Cetrone that he felt at a disadvantage because
he missed some group exams. See ECF No. 39. He also asked to see his previous
exams, even though it is against school policy to provide old exams to students. Id
at 17,

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82·83. During this meeting, the three set up a time for Mr. Driscoll to take

the remedial comprehensive exam for his failing Clinical Medicine Three course
grade. Id at

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84. Professor Furbee even gave Mr. Driscoll permission to view his

earlier exams to prepare for the exam. Id

As each alleged failure to provide the accommodation occurred in earlier
terms, it can be inferred that Mr. Driscoll was given his full accommodation for every
exam during his third term.
9 More specifically, Mr. Driscoll had his full accommodation in his Orthopedics
course and attended the exam review/group exam period (ECF No. 33·22 at 6, ~~ 11·
14) and yet he was on track to fail that course as well. See ECF No. 33·15. The exam
review conducted in this class was much more in depth than the standard process
because the professor directed the class through every question as opposed to having
the students re·take the test without instructor supervision. ECF 40·1 at 14, ~~~~ 5·
10.
8

5

Unfortunately for Mr. Driscoll, despite the significant help and deviation from
school policy, he failed the comprehensive exam with a 68%. ECF No. 33-26. Because
he was also on track to fail several other courses, the staff decided to decelerate him
at that point rather than waiting until the end of the term when he would be subject
to dismissal.

The Academic Support and Remediation Committee subsequently

informed Mr. Driscoll that he would be decelerated. ECF No. 33-26. Mr. Driscoll
appealed this decision, but Mr. Amrien and the Provost independently affirmed the
deceleration decision. ECF Nos. 33-28; 33-30.
Also, during the summer of 2016, there was construction happening at the P A
campus. ECF No. 33-11 at 17, deposition page 156,

n 3-7.

Mr. Driscoll argues that

the noise exacerbated his ADHD, affecting his ability to take tests. He asserts that
he could not seek an accommodation for the noise because the Academic Center for
Excellence ("ACE") office (the office that received requests for accommodations) was
closed because of the construction. ECF No. 1 at 4-5,

~40.

Bryant disputes this

through an affidavit from Carol DeMoranville, the supervisor of ACE, asserting that
there is always a point person on staff and that at no point in 2016 was the office
closed for an extended time. ECF No. 33-18 at 2-3,

~~

4, 8-9.

Mr. Driscoll declined to return to the program for the subsequent Fall term in
a decelerated capacity.

He then underwent a full neurological exam and was

diagnosed with ADHD. ECF No. 42. Following that diagnosis, he brought this suit
against Bryant University and Mr. Amrien, alleging claims for violating the ADA and

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the Rehabilitation Act and for breach of contract. ECF No. 1. Bryant now moves for
summary judgment on all counts. ECF No. 32.
II.

STANDARD OF REVIEW
When making a summary judgment determination, the Court must review the

entire record and consider the facts and inferences in the light most favorable to the
non·moving party. Continental Cas. Co. v. Canadian Univ. Ins. Co., 924 F.2d 370,
373 (1st Cir. 1991). Federal Rule of Procedure 56(a) dictates that summary judgment
should be granted if "the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law." A genuine
dispute of material fact is an issue that "may reasonably be resolved in favor of either
party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
III.

DISCUSSION
When considering the undisputed facts of this case, the Court must review

Bryant's decision with deference to the school's judgment in the matter. Regents of

Univ. ofMichigan v. Ewing, 474 U.S. 214, 225 (1985). The Court should not override
the decision unless Bryant substantially departed from norms or failed to use
professional judgment. Id "[M]atters of academic judgment are generally better left
to the educational institutions than to the judiciary and [courts] have accorded great
deference where such matters are at issue." Mangla v. Bwwn Univ., 135 F.3d 80, 84
(1st Cir. 1998). In this posture of deference, the Court turns to Mr. Driscoll's claims
against Bryant and Bryant's arguments that those claims should be dismissed.

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A. Breach of Contract:
Rhode Island law makes it clear that the relationship between a student and
a private school is contractual. Gorman v. St. Raphael Academy, 853 A.2d 28, 34 (R.I.
2004). It is well established that the student handbook contains the student-school
contract. Id That said, the Rhode Island Supreme Court has cautioned that this
student-school contract is unique and "does not require strict adherence to contract
law." Id A court should construe such a contract in a way that gives the schoolroom
to interpret and modify the contract in ways to best conduct its mission. Id. The
First Circuit, applying Rhode Island law, determined that the student-school contract
must be examined in accordance with a "reasonable expectations" standard. Havlik

v. Johnson & Wales Univ., 509 F.3d 25, 34 (1st Cir. 2007); Mangla, 135 F.3d at 83;
Lyons v. Salve Regina College, 565 F.2d 200, 202 (1st Cir. 1977). The reasonable
expectations standard requires that the contract be interpreted in line with the
student's reasonable expectations. Havlik, 509 F. 3d at 34.
Here, the P A Program Student Handbook represents the contract between
Bryant and Mr. Driscoll. Mr. Driscoll argues that, although he sought help after
failing exams, the school never followed through with its promise to have a meeting
"with both the assigned advisor and the course director to address the low score and
to develop a study/remediation plan to address the learning deficits," ECF No. 33-2
at 21, and thus breached the contract. ECF No.1 at 5

'11'11

46-47. Bryant argues that

there was no such breach, and even if there were, the fact that Mr. Driscoll lied
extensively on his application means he breached first, removing Bryant's obligation

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to perform. ECF No. 32·1 at 44. The Court need not reach the latter argument
because it finds from the undisputed facts that Bryant's conduct did not breach the
contract.lO
A remediation plan can mean many different things depending on the
particular student. The undisputed record reveals that Bryant provided Mr. Driscoll
with a remediation plan to assist him with his progress through the P A Program.
Bryant quickly granted his requested time accommodation. Bryant contacted him
after he failed exams and allowed him to take remediation assignments. Bryant
recommended and provided methods and tools to aid in his studies and met with him
often to discuss his grades and progress through the program. Bryant gave Mr.
Driscoll the opportunity to review his old exams because he said it would help him
pass the comprehensive exam even though it was against school policy to do so.
Finally, Bryant decelerated Mr. Driscoll instead of dismissing him from the program,
giving him another opportunity to get on track with his studies. The Court finds that
Bryant's conduct provided Mr. Driscoll with the assistance as promised in the
handbook. Bryant thus did not breach the contract.
Moreover, Mr. Driscoll has failed to provide any evidence showing that his
expectations of his rights under the contract were reasonable. In fact, Mr. Driscoll
expressly stated to Professor Furbee that his only expectation of the program was

10

Mr. Driscoll also argues that Bryant breached the contract by failing to
substitute in his remediation grades. ECF No. 38·1 at 14. But this was not alleged
in the complaint nor is there any record evidence to support this point. The record
shows that two grades, in the allegedly offending term, were remediated.
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that he be able to see his old exams. ECF No. 33·22 at 13,

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11·16. Bryant provided ·

those exams, and many other opportunities during his three terms to change the
trajectory of his education. The university followed the student handbook and worked
with Mr. Driscoll in ways that far exceeded their mandate of providing a
"remediation" plan. Any expectations that go beyond Bryant's actual conduct are
unreasonable. The Court therefore finds that Bryant did not breach the contract.

R ADA and Rehabilitation Act
Mr. Driscoll brings claims under the ADA and Rehabilitation Act. Title III of
the ADA provides that "no individual shall be discriminated against on the basis of
disability in the full and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public accommodation ... " 42 U.S.C.
§ 12181(a).

The statute also stipulates that "a failure to make reasonable

modifications ... when necessary" is discrimination unless the entity in question can
show that "such modifications would fundamentally alter the nature" of the program.
42 U.S. C.§ 12181(b)(2)(A)(ii).
Similarly, the Rehabilitation Act provides that "no otherwise qualified
individual with a disability in the United States ... 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). The purpose of the Rehabilitation Act is to ensure
that disabled individuals have access to and are treated equally within federally

10

funded programs. Alexander v. Choate, 469 U.S. 287, 304 (1985) (citing Se. Cmtx.

College v. Davis, 442 U.S. 397 (1979)).
Claims falling under both the ADA and the Rehabilitation Act require Mr.
Driscoll to prove that (1) he has a disability as defined by the statutes, (2) he was
"otherwise qualified" for the program, (3) the statutes apply to Bryant, and (4) that
Bryant discriminated against him as an individual with a disability (for example,
failing to provide a reasonable accommodation). See 42 U.S. C. § 12182(a), 29 U.S.C.
§ 794(a). Mr. Driscoll makes two arguments in support of his ADA and Rehabilitation

Act claims. First, he alleges that Bryant did not give him the full measure of his
accommodation; second, he alleges that the accommodation given had the effect of
denying him the full benefits of the program. ECF No. 1 "If 33·34. Bryant first argues
that Mr. Driscoll was not qualified to be admitted and matriculate into the program
because his application was full of false accomplishments.l 1 ECF No. 32·1 at 34.
Alternatively, Bryant argues that the fact that Mr. Driscoll was not qualified was
obvious from his poor performance even in the face of Bryant's remediation program
and other accommodations.
It is uncontested that Mr. Driscoll has ADHD and that ADHD is a disability
under both statutes.

It is also uncontested that Bryant is "a place of public

accommodation" under the ADA, see 42 U.S.C. § 12181(7)(1), and Bryant receives
federal funds so is subject to the Rehabilitation Act, see 42 U.S.C. § 794(a) and

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Bryant has offered no evidence to suggest that Mr. Driscoll would not have
been accepted without the fake medals and stories.

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(b)(2)(A). The Court focuses its analysis on the second "otherwise qualified" prong
and concludes that Mr. Driscoll has failed to establish that he was otherwise qualified
to complete Bryant's PA Program.
"An otherwise qualified person is one who is able to meet all of a program's
requirements in spite of his handicap." Se. Comty. College, 442 U.S. at 406. See 45
C.F.R. § 84.3(1)(3) (an otherwise qualified student is one who has the necessary
knowledge and skill to be accepted into and perform successfully in a given program).
When determining if a plaintiff is otherwise qualified, "it is necessary to take into
account the extent to which reasonable accommodations that will satisfy the
legitimate interests of both the school and the student are (or are not) available and,
if such accommodations exist, the extent to which the institution explored those
alternatives." Wynne v. Tufts Univ. Sch. ofMed. (Wynne I./), 976 F2d 791, 792 (1st
Cir. 1992) (citing JVynne v. Tufts Univ. Sch. of Med., 932 F.2d 19, 24·26 (1st Cir.
1991)). Therefore, Mr. Driscoll must show that he communicated to Bryant that there
was a reasonable accommodation that would have allowed him to perform
successfully and to meet the program requirements.
The undisputed facts show that Mr. Driscoll put forth maximum effort in his
courses.

Mr. Driscoll himself testified that he obtained outside tutoring, test

preparation materials, and worked with staff extensively. ECF No. 33·11 at 18,
deposition pages 179·81,

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22·24, 1·24, 1·10. By decelerating Mr. Driscoll instead

of dismissing him, Bryant merely tried to help him achieve his goals and see him
succeed.

12

To be successful in defeating Bryant's motion, Mr. Driscoll must show that
there was an accommodation that would have rendered him otherwise qualified. Mr.
Driscoll asked for extra time to take his exams to accommodate for his ADHD. He
argues that despite his time·and·a·half accommodation, Bryant denied him "the full
extent of the accommodation." ECF No. 1 at 4,

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34, 38. Mr. Driscoll has offered

two instances in which such a denial occurred. In one instance, it was impossible to
provide the full amount of extra time because another class was scheduled to start
directly afterward. However, Bryant made clear in its accommodation letter that Mr.
Driscoll needed to "make practical arrangements" about his accommodation and it is
undisputed that he did not. See ECF No.

33·19~

In the second instance, Mr. Driscoll

has only offered vague allegations that he did not get extra time without asserting
any evidence to back up his claim. Mr. Driscoll argues that these two instances
created exam anxiety, and that that anxiety affected his ability to perform. The Court
finds that any failure was either unavoidable because of the program's requirements
or was so insignificant within the larger context of Mr. Driscoll's performance that it
could not have been the cause ofthe deceleration decision. The evidence also is clear
that even when given the full time accommodation, Mr. Driscoll's academic
performance still did not meet the program requirements.
Next, the Court considers Mr. Driscoll's argument that his inability to
participate in the group exams hampered his ability to perform. Mr. Driscoll argues
that this amounted to discrimination as he was unable to participate fully in every
aspect of the curriculum. ECF No. 1 at 4,

~~

13

33, 38. This argument fails for several

reasons. First, Mr. Driscoll did not communicate this issue to Bryant until his third
term when he was failing and on the brink of dismissal.1 2 Second, the record shows
that participation in the group exams had little to no effect on his ability to perform
in the program. For example, in Orthopedics, Mr. Driscoll had both his full time
accommodation and group exam review, and yet he continued to fail. Mr. Driscoll's
access, or lack thereof, to group exams was not determinative of his ability to perform.
Finally, Bryant did not deny Mr. Driscoll the ability to seek a noise
accommodation during the summer of 2016. See ECF No. 1at 4·5,

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40. Mr. Driscoll

has offered no proof of this allegation in the face of Bryant's affidavit that the office
remained open and staffed. And even if the office was closed, Mr. Driscoll was in
constant contact with Bryant staff and had many chances to voice his need for a noise
accommodation and the trouble he faced in requesting it. It was his responsibility to
communicate his need for an accommodation and there is no evidence that Mr.
Driscoll made any effort to do so. Therefore, Mr. Driscoll's argument in this regard
fails.
The Court finds that the undisputed evidence makes clear that Mr. Driscoll
was not qualified and no reasonable accommodation would have allowed him to
perform successfully in the P A Program. Mr. Driscoll put forth his best effort, Bryant
worked with him on a reasonable remediation program as the handbook required and

12 "[A]n

academic institution can be expected only to respond to what it knows."
Wynne II, 976 F.2d at 795.
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gave him his requested accommodation, but in -the end, Mr. Driscoll could not meet
the academic requirements of the P A Program.
Conclusion
For all these reasons, the Court finds that Mr. Driscoll's ADA, Rehabilitation
Act, and breach of contract claims against Bryant and Mr. Amrien fail. The Court
GRANTS Bryant's Motion for Summary Judgment on all counts. ECF No. 32 . .

John J. McConnell, Jr.
United States District Judge
August 7, 2019

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