Zimmeck v. Marshall University Board of Governors , 632 F. App'x 117 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1572
STEPHANIE ZIMMECK,
Plaintiff - Appellant,
v.
MARSHALL UNIVERSITY BOARD OF GOVERNORS, d/b/a Marshall
University, Joan C. Edwards School of Medicine; AARON
MCGUFFIN, individually and as Senior Associate Dean for
Student Affairs; TRACY LEGROW, individually and as Assistant
Dean for Academic Affairs; ROBERT C. NERHOOD, individually
and as Interim Dean of Marshall University School of
Medicine; MARIA VEITIA, individually and as Associate Dean
for Student Affairs, inclusive,
Defendants – Appellees,
and
JOSEPH L. SHAPIRO, individually and as Dean of the Marshall
University School of Medicine,
Defendant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
Chief District Judge. (3:13-cv-14743)
Submitted: November 24, 2015 Decided: December 11, 2015
Before WILKINSON, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jason J. Bach, THE BACH LAW FIRM, LLC, Las Vegas, Nevada, for
Appellant. Cheryl Lynne Connelly, CAMPBELL WOODS, PLLC,
Huntington, West Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Stephanie Zimmeck appeals the district court’s order
dismissing her due process claims * and granting summary judgment
to the Marshall University Board of Governors. Finding no
error, we affirm the district court’s orders.
I.
We review de novo a district court’s dismissal of an action
under Fed. R. Civ. P. 12(b)(6), accepting factual allegations in
the complaint as true and drawing all reasonable inferences in
favor of the nonmoving party. Kensington Volunteer Fire Dep’t
v. Montgomery Cty., 684 F.3d 462, 467 (4th Cir. 2012). To
survive a motion to dismiss, the complaint’s “[f]actual
allegations must be enough to raise a right to relief above the
speculative level” and sufficient “to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555, 570 (2007).
Zimmeck alleged that the Marshall University School of
Medicine (“MUSOM”) dismissed her as a student in its program, in
violation of procedural and substantive due process pursuant to
42 U.S.C. § 1983 (2012). Under the Fourteenth Amendment, “[n]o
State shall . . . deprive any person of life, liberty, or
*Zimmeck brought these claims against Aaron McGuffin, Tracy
LeGrow, Robert C. Nerhood, and Maria Veitia.
3
property, without due process of law . . . .” U.S. Const.
amend. XIV, § 1. Generally, a due process claim requires a two-
part analysis: “whether [the plaintiff] was deprived of a
protected interest, and, if so, what process was . . . due.”
Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982).
Assuming, without deciding, that Zimmeck alleged a
protected liberty or property interest, we conclude that she
failed to allege a viable due process claim. MUSOM dismissed
Zimmeck for academic reasons, and, thus, less process was due
than if she had been dismissed for disciplinary reasons. Bd. of
Curators of the Univ. of Mo. v. Horowitz, 435 U.S. 78, 86
(1978). MUSOM placed Zimmeck on academic probation, notified
her that further violations of its professionalism policy could
result in dismissal, and dismissed her after she was notified of
a hearing and participated in the appeals process. Thus, we
conclude that Zimmeck’s dismissal satisfied the requirements of
procedural due process.
Similarly, we conclude that Zimmeck failed to allege a
substantive due process claim. A court may only override a
school’s academic decision if “it is such a substantial
departure from accepted academic norms as to demonstrate that
the person or committee responsible did not actually exercise
professional judgment.” Regents of Univ. of Mich. v. Ewing, 474
U.S. 214, 225 (1985). Courts should defer to “the faculty’s
4
professional judgment.” Id. & n.11. Zimmeck’s own allegations
demonstrate that MUSOM dismissed her only after school officials
received several reports of unprofessional conduct. Further,
Zimmeck admits that the events considered by MUSOM did in fact
occur. Accordingly, we affirm the district court’s order
dismissing Zimmeck’s due process claims.
II.
We “review[] de novo [a] district court’s order granting
summary judgment.” Jacobs v. N.C. Admin. Office of the Courts,
780 F.3d 562, 565 n.1 (4th Cir. 2015). “A district court ‘shall
grant summary judgment 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.’” Id. at 568 (quoting
Fed. R. Civ. P. 56(a)). In determining whether a genuine issue
of material fact exists, “we view the facts and all justifiable
inferences arising therefrom in the light most favorable to
. . . the nonmoving party.” Id. at 565 n.1 (internal quotation
marks omitted). However, “[c]onclusory or speculative
allegations do not suffice, nor does a mere scintilla of
evidence in support of [the nonmoving party’s] case.” Thompson
v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002)
(internal quotation marks omitted).
Zimmeck argues that the district court erred in granting
summary judgment on her retaliation claim under the
5
Rehabilitation Act of 1973 (RA), 29 U.S.C.A. §§ 701 to 796l
(West 2008 & Supp. 2015), and the Americans with Disabilities
Act (ADA), 42 U.S.C. §§ 12101 to 12213 (2012). In order to
establish a prima facie retaliation claim under the ADA and RA,
a plaintiff must establish that (1) she engaged in a protected
activity, (2) the defendant took an adverse action against her
after she engaged in the protected activity, and (3) there was a
causal connection between the two. Freilich v. Upper Chesapeake
Health, Inc., 313 F.3d 205, 216 (4th Cir. 2002); Hooven-Lewis v.
Caldera, 249 F.3d 259, 272 (4th Cir. 2001).
As the district court found, Zimmeck failed to establish a
genuine dispute of material fact regarding whether there was a
causal connection between any protected activity and her
dismissal from MUSOM. Zimmeck argues on appeal only that there
was close temporal proximity between her request for an
accommodation and her dismissal from MUSOM. However, Zimmeck
admits she did not request an accommodation concerning her
mental health issues until after the initial decision to dismiss
her. See Price v. Thompson, 380 F.3d 209, 213 (4th Cir. 2004)
(“[A] causal connection for purposes of demonstrating a prima
facie case exists where the employer takes [an] adverse
employment action . . . shortly after learning of the protected
activity.”), abrogated on other grounds by Foster v. Univ. of
Md.-E. Shore, 787 F.3d 243 (4th Cir. 2015). Because the
6
asserted adverse action occurred before Zimmeck requested an
accommodation, we conclude she failed to establish her prima
facie case.
Zimmeck also argues that the district court erred in
granting summary judgment on her disability discrimination claim
under the RA and the ADA. To establish a claim of disability
discrimination, Zimmeck was required to show “that (1) she has a
disability, (2) she is otherwise qualified to receive the
benefits of a public service, program, or activity, and (3) she
was excluded from participation in or denied the benefits of
such service, program, or activity, or otherwise discriminated
against, on the basis of her disability.” Constantine v.
Rectors & Visitors of George Mason Univ., 411 F.3d 474, 498 (4th
Cir. 2005); see Class v. Towson Univ., __ F.3d __, __, 2015 WL
7074636, at *6 & n.2 (4th Cir. Nov. 13, 2015) (No. 15-1811)
(comparing elements of RA and ADA claims). “A qualified
individual is one who, with or without reasonable modifications
to rules, policies, or practices, meets the essential
eligibility requirements for participation in a program or
activity.” Halpern v. Wake Forest Univ. Health Scis., 669 F.3d
454, 462 (4th Cir. 2012) (alterations and internal quotation
marks omitted); see Class, 2015 WL 7074636, at *8.
We conclude that the district court properly relied on our
decision in Halpern in granting summary judgment to MUSOM. As
7
in Halpern, Zimmeck engaged in a substantial amount of
unprofessional conduct before providing MUSOM with notice of her
disabilities or proposing any accommodations. See 669 F.3d at
457-59. MUSOM repeatedly warned Zimmeck that further misconduct
could result in disciplinary sanctions up to and including
dismissal. Zimmeck did not suggest any reasonable accommodation
until after MUSOM’s initial decision to dismiss her; she “sought
not a disability accommodation, but a second chance to better
control [her] treatable medical condition.” Id. at 465
(internal quotation marks omitted). MUSOM gave Zimmeck numerous
chances to control her behavior or seek a formal accommodation,
but she failed to avail herself of this opportunity. See id.
(“[T]he law does not require the school to ignore misconduct
that has occurred because the student subsequently asserts it
was the result of a disability.”). Thus, the district court did
not err in granting summary judgment to the Defendant.
III.
Accordingly, we affirm the district court’s orders. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
8