Kodatt v. Oklahoma City University , 406 F. App'x 248 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
November 2, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
SHELLY KODATT,
Plaintiff-Appellant,
v. No. 10-6020
(D.C. No. 5:08-CV-00477-R)
OKLAHOMA CITY UNIVERSITY; (W.D. Okla.)
OKLAHOMA CITY UNIVERSITY
SCHOOL OF LAW; OKLAHOMA
CITY UNIVERSITY BOARD OF
TRUSTEES,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before TACHA, LUCERO, and MURPHY, Circuit Judges.
Shelly Kodatt appeals pro se from a district court order granting summary
judgment in favor of defendants Oklahoma City University (OCU), OCU Law
School, and the OCU Board of Trustees on her claims stemming from alleged
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
discrimination based on learning disabilities. Ms. Kodatt also challenges an order
that denied her motion for sanctions against the defendants for alleged spoliation
of evidence. We exercise our jurisdiction under 28 U.S.C. § 1291 to affirm.
I. Background
The relevant factual background as well as the procedural history of this
case is amply set forth in the district court’s comprehensive order of dismissal
and need not be repeated at length here. Suffice it to say, Ms. Kodatt has been
diagnosed with a number of learning disabilities, including attention deficit
hyperactivity disorder and dyslexia. Twice she has been dismissed as a student
from OCU Law School after failing to maintain the required minimum grade point
average of 4.5 on a 12-point scale. In April 2008, she filed this action, alleging
that her second dismissal from OCU Law School, after the Fall 2005 semester,
was the result of discrimination based on her learning disabilities. Ms. Kodatt’s
complaint stated claims under Title III of the Americans with Disabilities Act
(ADA), 42 U.S.C. § 12182(a); section 504 of the Rehabilitation Act, 29 U.S.C.
§ 794(a); and included several state law claims, including breach of contract,
negligence, and a “Burk tort claim” 1 for alleged violations of the Oklahoma
1
In Burk v. K-Mart Corp., 770 P.2d 24, 29 (Okla. 1989), the Oklahoma
Supreme Court created a narrow exception to the employment-at-will doctrine,
holding that “an employee [who] is discharged for refusing to act in violation of
an established and well-defined public policy or for performing an act consistent
with a clear and compelling public policy” may bring a tort claim for wrongful
discharge.
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Anti-Discrimination Act, Okla. Stat. tit. 25, § 1101 et seq. The district court
granted summary judgment, concluding that Ms. Kodatt failed to present a
genuine issue of material fact as to both her state law claims and her claim that
OCU Law School acted intentionally or with deliberate indifference to a federally
protected right.
During discovery, Ms. Kodatt had asked the defendants to produce copies
of other students’ written exams from the Fall 2005 semester Legal Profession
course in order to show that her own exam was scored unfairly. The district court
ordered OCU Law School to produce the requested exams. The exams, however,
had been destroyed years earlier in accordance with OCU Law School’s general
practice of discarding all undisputed exams after one year. Ms. Kodatt then filed
a motion asking the district court to sanction the defendants for destroying
relevant evidence. She requested entry of judgment against the defendants, or, at
a minimum, an adverse-inference instruction to the jury.
On January 22, 2010, the district court entered its summary judgment ruling
as well as its order denying Ms. Kodatt’s motion for sanctions. This appeal
followed.
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II. Discussion
A. Summary Judgment
We review de novo a district court’s grant of summary judgment under
Federal Rule of Civil Procedure 56(c). Duvall v. Georgia-Pacific Consumer
Prods. L.P., 607 F.3d 1255, 1259 (10th Cir. 2010). In doing so, we apply the
same standard as the district court and “must affirm if the record reveals no
genuine issue of material fact and if the moving party . . . is entitled to judgment
as a matter of law.” Id. “The mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of material
fact.” Barber ex rel. Barber v. Colo. Dep’t of Revenue, 562 F.3d 1222, 1228
(10th Cir. 2009) (internal quotation marks and brackets omitted). In applying
Rule 56, “we examine the record and all reasonable inferences that might be
drawn from it in the light most favorable to the non-moving party[,]” in this case
Ms. Kodatt. Id. (internal quotation marks omitted).
1. ADA and Rehabilitation Act Claims
“Title III of the ADA prohibits discrimination against persons with
disabilities in places of public accommodation.” Colorado Cross Disability
Coalition v. Hermanson Family Ltd. P’ship I, 264 F.3d 999, 1001 (10th Cir.
2001). “Discrimination under Title III specifically includes the failure to make
reasonable modifications in policies, practices, or procedure to accommodate a
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disabled individual, unless the entity can demonstrate that making such
modifications would fundamentally alter the nature of the services.” Mershon v.
St. Louis Univ., 442 F.3d 1069, 1076 (8th Cir. 2006) (citing 42 U.S.C.
§ 12182(b)(2)(A)(ii)). “Likewise, the Rehabilitation Act requires reasonable
accommodations when an ‘otherwise qualified’ disabled student would otherwise
be denied meaningful access to a university.” Id. (internal quotation marks and
citation omitted). Neither Title III of the ADA nor the Rehabilitation Act require
a graduate school to admit “a disabled student who cannot, with reasonable
accommodations, otherwise meet the academic standards of the program.” Id.Thus, in the higher education context, a person alleging a
failure to accommodate under Title III or the Rehabilitation Act must
show (1) that the plaintiff is disabled and otherwise qualified
academically, (2) that the defendant is a private entity that owns,
leases or operates a place of public accommodation (for ADA
purposes) and receives federal funding (for Rehabilitation Act
purposes), and (3) that the defendant failed to make reasonable
modifications that would accommodate the plaintiff’s disability
without fundamentally altering the nature of the public
accommodation[.]
Id. (internal quotation marks omitted).
There is no dispute in this case that OCU Law School made efforts to
accommodate Ms. Kodatt’s learning disabilities. The school provided her with a
separate, quiet environment in which to take exams and gave her twice as much
time as other students to complete her exams. It is also undisputed, however, that
due to a glitch in the software used to administer computer-written exams
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(ExamSoft), the duration of exams taken in the 2005 Fall semester was
inadvertently noted on each student’s exam cover sheet. 2 Consequently, although
exams were graded anonymously–each student was assigned a three-digit
number–because Ms. Kodatt’s extra time was disclosed, theoretically a professor
grading her exam would know, at a minimum, that the exam was accommodated.
Ms. Kodatt argues that her extra time “stood out like a sore thumb” on her
exam cover sheets, R. Vol. 1 at 161, and she asserts by affidavit that at least one
professor, Carla Spivack (a first-year legal profession teacher), used the
disclosure of extra time to identify her 2005 Fall semester exam. In her affidavit,
Ms. Kodatt accuses Professor Spivack of grading her exam “differently than
[those of] any other student.” Id. She also claims that Professor Spivack “made
an error in the calculation of checks that [she] was awarded,” which resulted in
her receiving a D grade instead of a C-. Id. at 161-62. After the 2005 Fall
semester, Ms. Kodatt was dismissed from OCU Law School due to her failure to
maintain the minimum grade point average. She claims that a C- grade in
Professor Spivack’s class would have placed her “in good academic standing.”
Id. at 162.
Thus, although Ms. Kodatt was granted an accommodation, her theory of
discrimination appears to be that the accommodation was effectively negated by
2
Like many students, Ms. Kodatt opted to take her exams on a laptop
computer using ExamSoft, as opposed to writing them in a traditional blue book.
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Professor Spivack’s unfair grading. 3 She emphasizes a comment allegedly made
by Professor Spivack when the two met to discuss Ms. Kodatt’s grade. According
to Ms. Kodatt, “[a]fter acknowledging that she had made an error in the
calculation of checks that [Ms. Kodatt] was awarded, [Professor Spivack] stated
that any error she made would not change [Ms. Kodatt’s] grade because [she]
received extra time.” Id. at 161-62. Professor Spivack allegedly told her, “‘[y]ou
do not belong in law school since you cannot even do well when given extra
time.’” Id. at 162.
In ruling on the defendants’ summary judgment motion, the district court
first held that in order to prevail, Ms. Kodatt would have to prove intentional
discrimination as to both her ADA and Rehabilitation Act claims. The district
court was correct with respect to the Rehabilitation Act; a claim under § 504
requires proof of intentional discrimination. See Powers v. MJB Acquisition
Corp., 184 F.3d 1147, 1153 (10th Cir. 1999) (adopting intentional discrimination
standard and holding that it can be “inferred from a defendant’s deliberate
indifference to the strong likelihood that pursuit of its questioned policies will
likely result in a violation of federally protected rights”). A claim for injunctive
relief under Title III of the ADA, however, is not dependent upon a showing of
3
Ms. Kodatt does not articulate her theory as such, but as all of her
pleadings in the district court and this court were filed pro se, they are entitled to
a solicitous construction. Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th
Cir. 2007).
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discriminatory intent. See Lentini v. Cal. Ctr. for the Arts, 370 F.3d 837, 846
(9th Cir. 2004) (“It is undisputed that a plaintiff need not show intentional
discrimination in order to make out a violation of [Title III of] the ADA.”); cf
Chaffin v. Kan. State Fair Bd., 348 F.3d 850, 858 (10th Cir. 2003) (noting, in
case under Title II, that “in enacting the ADA . . . Congress prohibited a broad,
comprehensive concept of discrimination, beyond discrimination motivated by
hostile discriminatory purpose”). The district court’s statement that a showing of
wrongful intent is required under Title III of the ADA was therefore incorrect.
We conclude that the error was harmless, however, because Ms. Kodatt’s
ADA claim is not based on disparate treatment or any other theory of
unintentional discrimination. Rather, Ms. Kodatt claims that Professor Spivack
purposefully discriminated against her because she had extra time to complete her
exam. But even if a fact finder were to credit Ms. Kodatt’s testimony on this
issue, there is no evidence that her dismissal from OCU Law School was
discriminatory. The law school warned her after the Fall 2004 semester that she
was not in academic good standing. After the Spring 2005 semester, Ms. Kodatt
was placed on academic probation and warned that she would be dismissed if she
did not raise her GPA to 4.5. When she failed to do so, the law school followed
through with the dismissal. Thus, it is misleading for Ms. Kodatt to argue that
she was dismissed because of her poor grade in Professor Spivack’s class.
Furthermore, Professor Spivack maintains that Ms. Kodatt’s exam was a D, even
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correcting for her checkmark miscalculation, because “Ms. Kodatt did not discuss
the same relevant material as did examinees with higher grades.” R. Doc. 37, Ex.
23. This opinion from a university faculty member concerning her student’s
academic performance is entitled to great deference. Regents of Univ. of Mich. v.
Ewing, 474 U.S. 214, 225 (1985). In sum, all of the evidence of record, viewed in
the light most favorable to Ms. Kodatt, supports OCU Law School’s position that
it dismissed Ms. Kodatt solely because of her poor academic performance. We
therefore agree with the district court that Ms. Kodatt’s evidence does not create a
fact issue as to whether she was discriminated against because of her disability.
2. State Law Claims
The district court dismissed Ms. Kodatt’s Burk tort claim under
Oklahoma’s Anti-Discrimination Act as a matter of law, explaining that Burk
“only applies to wrongful employment terminations.” R. Vol. 1 at 364 (citing
Clinton v. State ex rel Logan Cty. Elec. Bd., 29 P.3d 543, 547 (Okla. 2001)
(overruled on other grounds)). It concluded that her breach of contract claim
must also fail because OCU Law School’s student handbook, upon which the
claim was based, plainly stated that it did not form a contract between the
students and the university. And even if it did, the district court concluded there
was insufficient evidence “from which reasonable jurors could find a material
breach of that contract so as to create a genuine issue of material fact.” R. Vol. 1
at 366. The district court likewise found insufficient evidence to withstand
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summary judgment as to the promissory estoppel and negligence claims. The
court explained that an essential element of promissory estoppel is detrimental
reliance, and it found no evidence that Ms. Kodatt relied on implied promises
concerning the defendants’ grading policies in deciding to attend OCU Law
School. Ms. Kodatt’s negligence claim was predicated on the defendants’ alleged
failure to properly train university faculty members with respect to their
obligations to disabled students under Title III of the ADA. Because it concluded
that Ms. Kodatt had failed to show discrimination in violation of the ADA, the
district court determined that her negligence claim must also fail for lack of
damages.
We affirm the dismissal of Ms. Kodatt’s state law claims for substantially
the same reasons given by the district court in its order of January 22, 2010.
B. Sanctions Motion
We also affirm the district court’s decision on sanctions. A trial court’s
refusal to grant sanctions for spoliation of evidence is reviewed for abuse of
discretion. 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 989 (10th Cir.
2006). To win her sanctions motion, Ms. Kodatt was required to show that the
defendants had a duty to preserve the evidence because they knew, or should have
known, that litigation was imminent. Id. In this case, it appears that at the time
OCU Law School discarded the Fall 2005 exams, Ms. Kodatt had initiated a state
action against the defendants premised on an allegation that OCU Law School
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breached the grade appeal procedure set forth in its student handbook. That
separate lawsuit, however, did not include any allegations or claims of
discrimination, and consequently, it did not put the defendants on notice that
discrimination claims were forthcoming. Under these circumstances, the district
court did not abuse its discretion in concluding that sanctions were not
appropriate.
Ms. Kodatt’s motion to proceed in forma pauperis is GRANTED and the
judgment of the district court is AFFIRMED.
Entered for the Court
Deanell R. Tacha
Circuit Judge
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