Samantha Newell v. Central Mich. Univ. Bd. of Trs. ( 2021 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0417n.06
No. 20-1864
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SAMANTHA NEWELL, ) FILED
) Sep 02, 2021
Plaintiff-Appellant, ) DEBORAH S. HUNT, Clerk
)
v. )
ON APPEAL FROM THE
)
UNITED STATES DISTRICT
CENTRAL MICHIGAN UNIVERSITY BOARD )
COURT FOR THE EASTERN
OF TRUSTEES; DEBORAH SILKWOOD- )
DISTRICT OF MICHIGAN
SHERER, )
)
Defendants-Appellees. )
)
BEFORE: GRIFFIN, WHITE, and READLER, Circuit Judges.
GRIFFIN, Circuit Judge.
Samantha Newell claims that Central Michigan University failed to provide her certain
accommodations for her disability in a timely manner and subjected her to a hostile educational
environment while she was a doctoral student in the university’s Physical Therapy Program. She
also contends Dr. Deborah Silkwood-Sherer, the program’s director, violated her right to bodily
integrity by not exempting her from physical treatments within the program curriculum that caused
her physical harm. The district court entered judgment for defendants in two orders, and we affirm.
I.
A.
Plaintiff Samantha Newell suffers from a genetic disorder that she describes as a
combination of hypotonic cerebral palsy and a connective-tissue condition like Marfan syndrome.
No. 20-1864, Newell v. Cent. Mich. Univ. Bd. of Trs.
Her disorder manifests in several ways, including hypermobility, joint instability and pain, general
lack of strength, as well as learning and cognitive disabilities and sensory processing issues.
She entered Central Michigan University’s Physical Therapy Program in May 2016 and
worked with the university’s Student Disability Services (SDS) office to coordinate
accommodations. The director of SDS, Lynne L’Hommedieu, provided plaintiff with letters
indicating that she was entitled to extra time for tests, a separate testing area, and alternative test
formats. It was Newell’s responsibility to give a copy of the letter to each of her professors.
After a relatively uneventful first semester (Summer 2016), plaintiff began to have
problems with some aspects of her schooling. In the Fall 2016 semester, she was either late or
absent for several required class sessions. For example, she arrived 50 minutes late to one of her
exams and forgot to attend a laboratory session for the same professor’s class, offering no
explanation for her failure to attend.
During the Fall 2016 semester, Newell was also required to experience electronic
stimulation (“e-stim”) as part of Patient Care Lab I with Drs. Timothy Zipple and Elaine Betts on
two or three occasions, which transmits a small electrical current through the body to treat maladies
like muscle spasms and mild nerve damage. She and a partner took turns setting up the e-stim
machine and applying it to each other. Plaintiff suffered “severe headaches, fatigue, and sleep
issues” from the e-stim treatment. When she reported this to the SDS office, L’Hommedieu
arranged a meeting between Newell, Dr. Silkwood-Sherer, and herself. As a result of the meeting,
Dr. Silkwood-Sherer agreed that for purposes of the practical exam, Newell’s partner could set up
the machine but not perform the treatment upon her so long as the professors teaching the class
approved. While there was some confusion over this because plaintiff did not raise the issue with
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the professors teaching the course until exam day, she ultimately did not experience e-stim during
the practical exam.
Once the Fall 2016 semester ended, L’Hommedieu sent Newell an email to “touch base
. . . regarding how to work out your accommodations in Spring and forward.” She stated that
“including me in the discussion with your professors and Dr. Silkwood-Sherer really doesn’t help,”
because she did not “understand enough about the program” and including her in discussions
meant that the professors would “have to teach me what is required to function in the program.”
Thus, she recommended that “in the future it will be best for you to go directly to your professors
and include Dr. Silkwood-Sherer on e-mails” without copying L’Hommedieu.
On January 5, 2017, before the next semester began, Newell wrote a letter to her professors
requesting several additional accommodations primarily relating to her sensory-processing
disorder. For instance, she requested a modified attendance policy that would allow her to rely on
class recordings. She also requested the ability to use headphones during lab work and while
taking tests. Finally, plaintiff recounted her struggles the previous semester with e-stim. She
explained that she was concerned “about what other modalities or treatments” might do to her in
the future. She closed this portion of the letter by stating: “I will try anything, but if I notice
problems, I hope that I’ll be accommodated.” The letter offered no other specifics as to any
accommodations request regarding classroom demonstrations. Dr. Silkwood-Sherer responded,
cautioning that the faculty might not be able to grant all of Newell’s requested accommodations
because they would hinder her ability to practice in clinical rotations. On January 11, Newell
responded that she “underst[ood] that all the thoughts/ideas presented in my letter [would] not all
be implemented.” Newell later testified that the January 5 letter was not requesting specific
accommodations that would “excuse [her] from receiving any types of . . . treatments in class.”
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On January 17, 2017, Newell sent another email to Dr. Silkwood-Sherer. She reported that
the previous week, while in a class with Dr. Zipple, he used Newell as a demonstration patient to
teach the “spinal spring test” (a method of spinal manipulation), and the Friday after class,
January 13, she had to miss class with a bad migraine. She thought the migraine might have been
due to the spinal spring test and concluded the letter by stating: “I think that manipulating my spine
affected me a lot. . . . I may need to be accommodated to only give and not receive the spinal
manipulation treatments. I am going to talk to my physician and PT that know my condition best
on whether having my spine manipulated would cause these issues.”
That same day, the faculty, with SDS present, took up discussion of Newell’s January 5
letter in a faculty meeting. They denied her requests for a modified attendance policy and for
noise-canceling headphones. They concluded that she “need[ed] to be a patient/participant in labs”
but did not consider whether she should be exempt from demonstrations performed by the
professor. However, the faculty granted plaintiff access to prior years’ video recordings of
lectures, allowed her to wear earplugs during testing (as opposed to headphones), and promised
that they would not “overwork” Newell’s joints and tissue during labs, as they had done for
previous students with hypermobility.
In addition to discussing the accommodations Newell requested, the faculty discussed their
collective perception that she lacked professionalism or otherwise was not fully engaged in the
program. The meeting agenda specifically noted six behaviors of Newell’s that concerned them:
ii. Student does not self-assess well. She feels that she is below her
classmates. She worries about things that have not happened, yet.
iii. Student has not followed up on exercises that were given to her by Dr.
Haines to improve her strength and ability to work safely with patients.
iv. Student has only met with her advisor once since entering the program.
v. Student has not followed up with Dr. Zipple on an email that he sent her.
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vi. Student has not given Dr. Betts a letter from Student Disability Student
Services this semester
vii. Dr. Betts told student that she would work with her biomechanics[;] student
did not follow through.
They therefore created a “Professional Behavior Contract” for Newell to sign, through which she
would promise to attend a weekly meeting with her advisor, attend all classes and meet with at
least one professor per week during office hours, and “take her turn being a patient in lab.” Finally,
the faculty recognized that plaintiff was “performing academically up to the class standard,” but
that she needed “feedback to that effect” and a “confidence building chat.”
According to Newell, the Spring 2017 semester was a disaster. She alleges suffering
numerous injuries because of treatments performed on her by her student-partners during lab
and/or by her professors in class demonstrations. But she did not raise these injuries with the
faculty or the SDS office in January or February 2017, despite many email exchanges with both.1
Her struggles with attendance and professionalism also continued. On one occasion in early
February, she arrived one hour late for class. Then, on February 26, 2017, she scheduled two tests
for different classes at the same time. Because of these developments, Newell was again a subject
of discussion for the faculty. At a meeting in late February 2017, the faculty decided to issue a
written warning to Newell along with “a formal behavioral contract.”
To that end, Newell’s faculty advisor, Dr. Jan Perkins, sent her an email during spring
break on March 7, 2017, outlining the behavioral issues discussed above. She told Newell that
they needed to meet “as early after break” as they could to discuss the faculty’s expectations for
1
Newell later created a list of the “labs that caused problems for my joints,” mainly in a
class focused on mobilization techniques. In one lab, she says she tore her right hip labrum. She
testified in her deposition that she never told her professors about the injury. (“Q. But you didn’t
tell Dr. Zipple you’d been injured that day, right? A. I didn’t tell him, no. Q. Did you tell Dr.
Sung? A. No. I don’t recall telling Dr. Sung, no. I tried to avoid the professors because I didn’t
want to be considered, you know, a baby[.]”).
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her. Newell responded six days later that “a meeting to define expectations [was] a great idea.”
She added that she had “quite a few disability accommodation expectations that still need[ed] to
be addressed as well.” Newell further explained that her “parents [felt] as though [her] disability
attorney’s office should be involved and . . . sent them a retainer. So, a representative from that
office will be at that meeting with me . . . . We can expect that we can be ready to start a discussion
in about two weeks.”
Then, on March 15, 2017, Newell sent an email to the faculty raising concerns about being
required to undergo physical treatments as part of her lab work. She explained that the treatments
were “contraindicated” for her condition, so even if done “mildly,” they were causing her harm.
She added, “I am understanding that although I have a medical diagnosis of hypermobility and
hypotonia, I am still expected to endure mobilizations. I’ve asked several of you about this and I
get the same answer, which is that if done mildly, it will be fine.” She stated that she had “been
having substantial physical negative side effects from this on a regular basis” and could “get
medical documentation about the issues if needed.” The email concluded: “So, one more time, I
just need to make sure that you all understand this and yet you still want me to continue to endure
this procedure. Thank you.”
Dr. Silkwood-Sherer responded on March 17, 2017, writing on behalf of all of Newell’s
professors. She stood by the faculty’s position that they were able to modify treatment techniques
to help Newell satisfy the program requirements, and that mobilizations were not contraindicated
for her if performed correctly. Silkwood-Sherer also stated that they could not excuse plaintiff
from lab activities because it would “violate[] the policy of treating everyone the same, unless
there are documented accommodations.” She added that the “fact that you are sending this email[]
just reinforces why we need to meet. We need to have a dialogue on exactly what issues you are
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having[.]” She therefore urged Newell to schedule the anticipated meeting “as soon as possible”
so they could “problem solve for possible solutions that could be satisfactory for everyone.”
Newell next emailed Dr. Zipple the following day, March 18. She stated that every time
he performed a mobilization technique upon her, she needed medical treatment. She also stated
that her “lab partners were always careful” when performing treatments, so she “did not seem to
have as many issues when it [was] only [her] lab partner that work[ed] on [her].” Newell cited
two occasions where Dr. Zipple had performed treatments on her that caused “out of control” pain.
Because of this, she requested that “only her [lab partner]” perform manual therapy on her in
upcoming class sessions. She also suggested that she could be put in a group of three or four
students, so she would not need to act as a patient if a particular treatment posed problems.
Alternatively, she asked “at a minimum” that Dr. Zipple demonstrate on a student other than
Newell when her partner asks a question and that she not be “used in class demonstrations.” The
faculty noted this email and flagged it for discussion in the forthcoming meeting.
The meeting was scheduled for March 28. On that day, Newell sent a letter to Silkwood-
Sherer, L’Hommediue, and Perkins. It expressly requested several accommodations, including
that Newell be in groups of three during lab work so that her classmates would have someone else
to practice on if Newell was “unable to participate.” It also asked for an “[e]xemption from any
in-class treatment demonstrations unless [she] volunteer[ed].”
The March 28 meeting lasted nearly two hours and covered both the faculty’s concerns
with plaintiff’s conduct and her need for further accommodations. During the meeting, Newell
explained that she had recently suffered “some kind of hip sprain” after she “let [her] partner push
. . . too hard.” She feared that “if she said no,” or told her partner to stop, she would “get in trouble
somehow.” Dr. Silkwood-Sherer responded that she did not understand why Newell would get in
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trouble for communicating to her lab partner that she needed to stop the treatment. Moreover, she
explained that the program expected students to tell their partners when they were pushing too
hard and that communication between the pair should be “happening all the time.” Regarding Dr.
Zipple’s demonstrations, Dr. Silkwood-Sherer urged Newell to meet with him in person to discuss
her concerns. At the end of the faculty meeting, Newell received a written warning for her
professionalism issues.
Dr. Zipple demonstrated a technique on Newell one more time, on April 5, when he
performed a mobilization on the outside of her knee during a lab. This did not lead to serious
injury, but it did cause Newell’s knee to feel looser.
On April 6, Newell met with CMU’s Office of Civil Rights and Institutional Equity
(OCRIE) to file a formal civil rights complaint. OCRIE investigated between April 6, 2017, and
July 11, 2017. During the investigation, it recommended that the Physical Therapy faculty refrain
from meeting with Newell to discuss class-specific accommodations. Plaintiff’s last manual
therapy lab session for the Spring 2017 semester occurred on April 10, 2017. She sprained her
ankle during that lab after a classmate began doing “lateral subtalar glides too fast” on her foot,
causing a “pop” and pain. SDS worked with Newell and the Physical Therapy faculty to structure
Newell’s practical exams—taking place at the end of April and beginning of May—so that they
did not require her to experience any type of mobilization or intervention technique. Newell
completed those exams without issue.
OCRIE completed its investigation into Newell’s complaint on July 11, 2017. It resulted
in CMU withdrawing the written warning, and Newell receiving a formal accommodation letter
that permitted her to avoid participating in mobilizations she deemed harmful during labs. Dr.
Silkwood-Sherer opposed this accommodation but said that she would “obviously have to live
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with it.” On July 7, just prior to the issuance of Newell’s formal accommodations, Dr. Zipple
offered a similar, informal accommodation at the start of his class with Newell during the Summer
2017 semester, providing that she could choose not to have techniques performed on her that she
deemed potentially hazardous and would not be selected as a demonstration model by course
faculty.
After receiving the formal accommodation, Newell had no further issues with the
classroom portions of her education. She was, however, terminated from her clinical placement
in the Fall of 2018 at the request of her clinical supervisor. In the request to cease the placement,
the supervisor reported that Newell had “compromised the standard of patient care” at the facility.
Because of plaintiff’s termination from her clinical placement, she was subject to dismissal from
the Physical Therapy Program, but the faculty instead allowed her to remediate. Around the same
time, she took a medical leave after being diagnosed with a labral tear in her right hip.
As of the time of the complaint, Newell had completed the classroom requirements for
graduation from the program with a 3.67 GPA but had not returned to finish the clinical
requirements. Newell has since returned to the program and is wrapping up the remaining clinical
work required for graduation.
B.
Newell filed suit in July 2019. In her operative complaint, she pleaded five counts:
(1) failure to grant reasonable accommodations against CMU; (2) retaliation for protected activity
under the Americans with Disabilities Act and Rehabilitation Act against CMU; (3) interference
with rights protected under the ADA and Rehabilitation Act against CMU; (4) “Hostile
Educational Environment” under the ADA and Rehabilitation Act as to CMU; and (5) violation of
her right to bodily integrity under the Fourteenth Amendment as to Dr. Silkwood-Sherer.
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After answering the complaint, Dr. Silkwood-Sherer moved for judgment on the pleadings.
She argued that the facts in Newell’s complaint failed to allege a violation of her right to bodily
integrity, that she could not be held liable for the constitutional violation on a theory of supervisory
liability, and that she was entitled to qualified immunity because even assuming a plausible claim
of a constitutional violation, the law was not clearly established. After full briefing, the district
court granted the motion, ruling that Dr. Silkwood-Sherer was entitled to qualified immunity.
Following discovery, CMU moved for summary judgment on the remaining ADA and
Rehabilitation Act claims. The district court granted the motion. As relevant to the appeal, it ruled
that no reasonable juror could find that CMU denied Newell reasonable accommodations (either
by failing to engage in the interactive process or by constructively denying an accommodation),
and that her claim for a hostile educational environment failed because even assuming such a claim
exists, plaintiff had not proffered evidence that she had subjectively experienced an abusive
educational environment.2 Having dismissed all of plaintiff’s claims, the court entered judgment,
and Newell timely appealed.
II.
We begin with the district court’s order granting judgment on the pleadings to Dr.
Silkwood-Sherer. Pursuant to Federal Rule of Civil Procedure 12(c), “[a]fter the pleadings are
closed—but early enough not to delay trial—a party may move for judgment on the pleadings.”
Fed. R. Civ. P. 12(c). “We review de novo a judgment on the pleadings granted pursuant to
2
The court also held that plaintiff’s retaliation claim failed because there was no evidence
that CMU took adverse action against her for requesting accommodation and that her ADA and
Rehabilitation Act claims for interference with a protected right failed because no reasonable juror
could find that defendants had coerced, threatened, or interfered with Newell’s protected activity
or that CMU was motivated by an intent to discriminate. Newell does not challenge those rulings
on appeal.
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Rule 12(c) . . . using the same standard that applies to a review of a motion to dismiss under
Rule 12(b)(6).” Moore v. Hiram Twp., 988 F.3d 353, 357 (6th Cir. 2021).
“For purposes of a motion for judgment on the pleadings, all well-pleaded material
allegations of the pleadings of the opposing party must be taken as true, and the motion may be
granted only if the moving party is nevertheless clearly entitled to judgment.” Jackson v. Prof’l
Radiology Inc., 864 F.3d 463, 466 (6th Cir. 2017) (citation omitted). “But we need not accept as
true legal conclusions or unwarranted factual inferences.” Id. (internal quotation marks and
citation omitted). “A Rule 12(c) motion is granted when no material issue of fact exists and the
party making the motion is entitled to judgment as a matter of law.” Id. (internal quotation marks
and citation omitted).
“To state a claim under 42 U.S.C. § 1983, a plaintiff must set forth facts that, when
construed favorably, establish (1) the deprivation of a right secured by the Constitution or laws of
the United States (2) caused by a person acting under the color of state law.” Marvin v. City of
Taylor, 509 F.3d 234, 243 (6th Cir. 2007) (citation omitted). However, qualified immunity shields
government officials performing discretionary functions from liability if they have violated an
individual’s constitutional right, but that right was not “clearly established” when the officials
acted. Id. (citation omitted). Thus, a two-part test determines whether qualified immunity applies:
“(1) whether, considering the allegations in a light most favorable to the party injured, a
constitutional right has been violated, and (2) whether that right was clearly established.” Colvin
v. Caruso, 605 F.3d 282, 290 (6th Cir. 2010) (citation omitted). “We are free to consider the two-
part test in whatever order is appropriate in light of the issues before us.” Id. (internal quotation
marks, citation, and brackets omitted); see Pearson v. Callahan, 555 U.S. 223, 236 (2009).
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“Although a defendant’s entitlement to qualified immunity is a threshold question to be
resolved at the earliest possible point, that point is usually summary judgment and not dismissal
under Rule 12.” Moderwell v. Cuyahoga County, 997 F.3d 653, 660 (6th Cir. 2021) (internal
quotation marks and citation omitted). “The reasoning for our general preference is
straightforward: Absent any factual development beyond the allegations in a complaint, a court
cannot fairly tell whether a case is obvious or squarely governed by precedent, which prevents us
from determining whether the facts of this case parallel a prior decision or not for purposes of
determining whether a right is clearly established.” Guertin v. State, 912 F.3d 907, 917 (6th Cir.
2019) (internal quotation marks and citation omitted). We recently stated that “‘it is generally
inappropriate for a . . . court to grant a [12(c) motion for judgment on the pleadings] on the basis
of qualified immunity.’” Moderwell, 997 F.3d at 661 (alteration in original) (quoting Wesley v.
Campbell, 779 F.3d 421, 433-34 (6th Cir. 2015)). But we have also affirmed grants of judgment
on the pleadings where the plaintiff did not plead a clearly established substantive due process
violation, so this statement is not an absolute prohibition. See, e.g., Clark v. Stone, 998 F.3d 287,
299–300 (6th Cir. 2021); Jasinski v. Tyler, 729 F.3d 531, 538–40 (6th Cir. 2013).
When considering qualified immunity at the Rule 12 phase, “we ask whether the complaint
plausibly alleges that an official’s acts violated the plaintiff’s clearly established constitutional
right.” Siefert v. Hamilton County, 951 F.3d 753, 762 (6th Cir. 2020) (internal quotation marks
and citation omitted). “If, taking all the facts as true and reading all inferences in the plaintiff’s
favor, the plaintiff has not plausibly showed a violation of his clearly established rights, then the
[]defendant is entitled to immunity from suit.” Id. In other words, “[j]ust as we gauge other
pleading-stage dismissals to determine only whether the complaint states a claim upon which relief
can be granted, . . . so we review an assertion of qualified immunity to determine only whether the
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complaint adequately alleges the commission of acts that violated clearly established law.” Back
v. Hall, 537 F.3d 552, 555 (6th Cir. 2008) (citation omitted).
The district court first concluded that Newell pleaded a plausible bodily-integrity claim,
but then concluded that “the same facts” that rendered the claim plausible were “insufficient to
demonstrate a violation of Plaintiff’s right to bodily integrity” (emphasis added). That did not
conform to the proper analysis, which asks if (1) Newell adequately alleged a violation of a
constitutional right that (2) was clearly established. While the district court could take those
questions in the order it deemed most appropriate, it appeared to improperly chart a third course
by concluding that Newell adequately alleged but did not “demonstrate” a violation.
Nevertheless, we need not decide whether Newell pleaded facts which plausibly give rise
to a constitutional violation, Pearson, 555 U.S. at 269, for she has not alleged a violation of clearly
established law, see Wallace v. Oakwood Healthcare, Inc., 954 F.3d 879, 887 (6th Cir. 2020)
(“This court can affirm a decision of the district court on any grounds supported by the record,
even if different from those relied on by the district court.” (brackets and citation omitted)).
“Qualified immunity attaches when an official’s conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”
Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam) (internal quotation marks and citation
omitted). Therefore, the clearly established right must be defined with “specificity,” and not “at a
high level of generality.” Id. “Notice to officials is paramount; ‘the salient question’ in evaluating
the clearly established prong is whether officials had ‘fair warning’ that their conduct was
unconstitutional.” Guertin, 912 F.3d at 932 (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)).
The focus must be “whether the violative nature of particular conduct is clearly established . . . in
light of the specific context of the case.” Id. (quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015)).
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That is not to say that qualified immunity requires a prior decision “on all fours” to “form
the basis for the clearly established right.” Id. Instead, the test is whether “existing precedent
must have placed the . . . constitutional question beyond debate.” Id. This means there must either
be “controlling authority or a robust consensus of cases of persuasive authority.” Plumhoff v.
Rickard, 572 U.S. 765 (2014) (internal quotation marks omitted). “[A]n action’s unlawfulness can
be ‘clearly established’ from direct holdings, from specific examples describing certain conduct
as prohibited, or from the general reasoning that a court employs.” Baynes v. Cleland, 799 F.3d
600, 612 (6th Cir. 2015) (citing Hope, 536 U.S. at 742–44).
Newell says Silkwood-Sherer violated her right to bodily integrity. That right “bears an
impressive constitutional pedigree.” Doe v. Claiborne County, 103 F.3d 495, 506 (6th Cir. 1996).
A bodily-integrity claim must show that the government action “‘shocks the conscience and
violates the decencies of civilized conduct.’” Guertin, 912 F.3d at 918; accord In re Flint Water
Cases, 960 F.3d 303, 324 (6th Cir. 2020). The “‘measure of what is conscience shocking is no
calibrated yard stick,’ nor is it ‘subject to mechanical application.’” Guertin, 912 F.3d at 923
(citations omitted). Mere negligence is insufficient. Id. Deliberate indifference can suffice, but
it depends on context. See id. (“‘Deliberate indifference that shocks in one environment may not
be so patently egregious in another[.]’” (citation omitted)).
Here, the district court ruled that Newell’s Fourteenth Amendment right to be free from
intrusions to her bodily integrity were clearly established by Claybrook v. Birchwell, 199 F.3d 350(6th Cir. 2000), Domingo v. Kowalski, 810 F.3d 403 (6th Cir. 2016), and Webb v. McCullough,
828 F.2d 1151 (6th Cir. 1987). It defined the right at issue only at a very high level of generality.
(“The Sixth Circuit has held that there is a constitutional right to bodily integrity on multiple
occasions. . . . Plaintiff’s right to bodily integrity is a well-established right.”). But see Ashcroft v.
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Al-Kidd, 563 U.S. 731, 742 (2011) (“[C]ourts . . . [should not] define clearly established law at a
high level of generality.”). A review of the cases the district court cited confirms that Dr.
Silkwood-Sherer could not have been on notice that declining Newell’s request to be exempted
from physical treatments, as part of her assigned coursework, would constitute a violation of her
right to bodily integrity under the Substantive Due Process Clause of the Fourteenth Amendment.
First, to describe the facts of Claybrook is to distinguish it. It involved an innocent
bystander injured by a police-pursuit-gone-wrong, 199 F.3d at 354–55, so it could not possibly
have put Dr. Silkwood-Sherer on notice that her “particular conduct” would violate Newell’s right
to bodily integrity. Guertin, 912 F.3d at 932.
The second case, Domingo, comes slightly closer to the mark, but only because it is set in
an educational environment. There, several elementary-age students alleged that their special-
education teacher violated their Fourteenth Amendment rights by, “among other things, gagging
one student with a bandana to stop him from spitting, strapping another to a toilet to keep her from
falling from the toilet, and forcing yet another to sit with her pants down on a training toilet in full
view of her classmates to assist her with toilet-training.” 810 F.3d at 406. We found no
substantive-due-process violation, reasoning in part that “[t]he evidence establishe[d] that
[defendant] attempted to toilet-train and control her special-education students in furtherance of
valid pedagogical goals,” so even if the “educational and disciplinary methods . . . may have been
inappropriate, insensitive, and even tortious[,] they were not unconstitutional.” Id. at 416. The
behavior in Domingo was far more troubling—and further removed from normal educational
practices—than that allegedly taken by Silkwood-Sherer: requiring Newell to participate in the
same standard educational program as everyone else, a valid pedagogical goal. Domingo could
not have put Silkwood-Sherer on notice that she was committing a constitutional violation.
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Webb is also readily distinguishable. There, the defendant, McCullough, was a high school
principal chaperoning a school trip. He discovered that a group of students possessed beer and
wine in violation of school rules. 828 F.2d at 1154. McCullough told the students that they would
be sent home early from the trip. Id. In response, the plaintiff, Webb, locked herself in a bathroom.
Id. McCullough allegedly broke down the bathroom door, struck Webb with the door, threw her
to the floor, and then slapped her. Id. She later filed suit raising Fourth and Fourteenth
Amendment violations against McCullough. On appeal, we reversed the district court’s grant of
summary judgment in favor of defendant, commenting that the record did not reflect that the
“alleged blows inflicted upon Webb were in any way disciplinary.” Id. at 1158. Therefore, it
“raise[d] the possibility that the alleged blows violated Webb’s substantive Fourteenth
Amendment due process rights” because “it [was] possible that the blows were not disciplinary in
nature, [and] a trier of fact could find that under the circumstances, McCullough’s need to strike
Webb was so minimal or non-existent that the alleged blows were a brutal and inhumane abuse of
McCullough’s official power, literally shocking to the conscience.” Id. at 1159. Nothing about
that case would suggest that Dr. Silkwood-Sherer’s failure to excuse plaintiff from participating
in manual therapy activities would similarly constitute a conscience-shocking violation of her
constitutional right to bodily integrity.
In sum, the district court went astray by defining the constitutional right at issue with a
high level of generality, which runs contrary to the Supreme Court’s command to the contrary. Al-
Kidd, 563 U.S. at 742. We conclude that a reasonable official in Dr. Silkwood-Sherer’s shoes
would not understand from Claybrook, Domingo, or Webb—or any other authority that has been
cited in this action—that Newell’s right to bodily integrity would be violated if she were required
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No. 20-1864, Newell v. Cent. Mich. Univ. Bd. of Trs.
to continue participating in physical treatments that were legitimate pedagogical exercises for
physical therapy students.
Accordingly, we affirm the district court’s grant of Dr. Silkwood-Sherer’s motion for
judgment on the pleadings on the alternative ground that she is entitled to qualified immunity for
lack of clearly established law.
III.
Plaintiff also appeals the district court’s grant of summary judgment to CMU on two of her
statutory claims under the Americans with Disabilities Act and/or Rehabilitation Act.3 We review
the district court’s summary judgment determination de novo. Thomas M. Cooley Law Sch. v.
Kurzon Strauss, LLP, 759 F.3d 522, 526 (6th Cir. 2014). Summary judgment is appropriate only
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.” Fed. R. Civ. P. 56(a). “We consider all facts and
inferences drawn therefrom in the light most favorable to the nonmovant.” City of Wyandotte v.
Consol. Rail Corp., 262 F.3d 581, 585 (6th Cir. 2001).
A.
Newell claims that CMU failed to grant her reasonable accommodations in violation of the
ADA. “A plaintiff asserting a violation of the ADA or Rehabilitation Act bears the burden to
establish that [s]he is qualified.” Shaikh v. Lincoln Mem’l Univ., 608 F. App’x 349, 353 (6th Cir.
2015) (quoting Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454, 462 (4th Cir. 2012)).
Accordingly, it is the student’s obligation to propose an accommodation and establish that it is
reasonable. See id. “A publicly funded university is not required to provide accommodation to a
3
Because the Americans with Disabilities Act and Section 504 of the Rehabilitation Act
share the same remedies, procedures, and rights, we analyze plaintiff’s claims brought pursuant to
those laws together. See Thompson v. Williamson County, 219 F.3d 555, 557–58 (6th Cir. 2000).
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No. 20-1864, Newell v. Cent. Mich. Univ. Bd. of Trs.
student under the ADA or Rehabilitation Act until the student provides a proper diagnosis of his
claimed disability and specifically requests an accommodation.” Id. (citation omitted).
Newell’s claim here is not that CMU failed to accommodate her disability. It did. Instead,
she contends that the delay between the time she first requested accommodations for her manual
therapy labs and the time CMU granted them was unreasonable, and as such, constituted a
constructive denial of her accommodation request in violation of the ADA. While we have not
yet directly considered whether this theory is actionable under the ADA or Rehabilitation Act (or
set forth a legal framework for establishing such a violation if cognizable), the district court
surveyed several in-circuit district court opinions, and ultimately adopted the four-factor test set
forth in Edmunds v. Board of Control of Eastern Michigan University, No. 09-11648, 2009 WL
5171794 (E.D. Mich. Dec. 23, 2009). That test, however, has not been adopted by this Court.
Newell’s claims can instead be resolved under existing case law. We have stated that
“causing unnecessary delays or obstructing the process” may constitute an example of failure to
engage in the good-faith interactive process, as required by the ADA. Brumley v. UPS, 909 F.3d
823, 840 (6th Cir. 2018). But as we have also previously explained, a defendant “need not
immediately implement or accept accommodations” proposed by a student or face liability for
disability discrimination. See Tchankpa v. Ascena Retail Grp., Inc., 951 F.3d 805, 812–13 (6th
Cir. 2020) (“[A] delay in providing a reasonable accommodation is not always actionable.”). And
in an unreported decision, we stated that a plaintiff “cannot base a disability discrimination claim
upon a [university]’s delay in providing an accommodation where the delay is due to internal
processing or events outside the [university]’s control.” Gerton v. Verizon S. Inc., 145 F. App’x
159, 168 (6th Cir. 2005) (citing Kaltenberger v. Ohio Coll. of Podiatric Med., 162 F.3d 342, 437
(6th Cir. 1998)). That appears to be the case for much of the delay at issue here. From April 6,
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No. 20-1864, Newell v. Cent. Mich. Univ. Bd. of Trs.
2017 to July 11, 2017, the delay in granting a formal accommodation was attributable to OCRIE’s
investigation of Newell’s civil rights complaint. And, it bears adding, Newell last underwent
manual therapy on April 10. By exam season—the end of April and beginning of May—Newell
was already being informally accommodated; she was excused from receiving any manual
demonstrations during exams. Accordingly, while Newell did not receive her formal
accommodation letter until July, the delay after the last class session on April 10 was entirely
harmless, and the university began taking steps to accommodate her far earlier in the process.
The remaining length of the delay attributable to CMU was not unreasonable. Whether we
consider the length of time between Newell’s request that she not participate in class
demonstrations with her professor, or her request to be excused from student-on-student physical
treatments in labs, we conclude that any delay on CMU’s part was reasonable in light of all the
circumstances. Considering Newell’s request to be excused from student-led manual therapy, the
delay, functionally, was only around one-to-two months. Reading the record in her favor, Newell’s
March 15 email—though phrased somewhat vaguely—could constitute a request to be exempt
from student-on-student demonstrations,4 but by the end of April, CMU excused her from student
demonstrations during final exams, and she last was subjected to one on April 10. And as noted
above, the delay between April 6 and the formal letter on July 7 was due to internal processing
prompted by Newell’s civil rights complaint. The record also reveals efforts by faculty—during
the alleged delay period—to engage in good faith efforts to create a dialogue with Newell. We
agree with the district court that, in light of the overall context of this case, CMU’s delay was
4
We note that three days later, in her March 18 email to Dr. Zipple, Newell noted that she
did not usually have issues with her classmates performing techniques on her, sending mixed
messages to the faculty. Still, though, we must read the record in Newell’s favor at this stage.
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No. 20-1864, Newell v. Cent. Mich. Univ. Bd. of Trs.
“limited” in nature and not suggestive of a constructive denial of accommodation in violation of
the ADA.
Arguing to the contrary, Newell contends that the district court erred by using March 2017
rather than January 2017 as the starting point for the delay in requested accommodations. But
rather than rely on record evidence to support her argument, Newell relies solely on allegations
from her First Amended Complaint (which is not even the operative complaint in the action).
Because this complaint was not verified, it is not an admissible exhibit for Rule 56 purposes. See
King v. Harwood, 852 F.3d 568, 578 (6th Cir. 2017). While we review the district court’s grant
of summary judgment de novo, it is plaintiff’s obligation to support her argument for reversal with
record evidence that establishes a genuine dispute of material fact for trial. See Brenay v.
Schartow, 709 F. App’x 331, 336 (6th Cir. 2017) (“[I]t is not for the court to search the record and
construct arguments. Parties must do that for themselves.”). Newell fails to do so here.
What is more, CMU acted reasonably throughout the duration of Newell’s alleged period
of delay. CMU provided multiple alternative accommodations before and during the Spring 2017
semester and met with her several times to engage in the interactive process, which the district
court correctly interpreted to be signs of good faith. See Jakubowski v. Christ Hosp., Inc., 627 F.3d
195, 202–03 (6th Cir. 2010).
Newell argues that CMU did not engage in good faith because it “only reached out to [her]
to schedule a meeting regarding the disciplinary action,” and that it did not schedule a meeting to
discuss her accommodations. But the record tells a different tale. At the time Dr. Perkins emailed
Newell to set up the disciplinary meeting, the sole issue up for discussion was plaintiff’s perceived
lack of professionalism and poor attendance. It was only after that email that Newell requested
that the meeting also incorporate a discussion of additional accommodations she desired, and CMU
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No. 20-1864, Newell v. Cent. Mich. Univ. Bd. of Trs.
honored her request by discussing potential accommodations with her on March 28, 2017. Newell
also argues that CMU offered her no alternative accommodations until the July 2017 formal letter,
but this argument simply omits the fact that she was excused from receiving treatments during her
Spring 2017 exams—an informal accommodation demonstrating that CMU took good-faith steps
to work with her while it formally investigated her internal complaint.
Accordingly, we affirm the district court’s grant of summary judgment in favor of CMU
on this claim.5
B.
Newell also asserts that she was subject to a hostile educational environment because CMU
subjected her to severe, pervasive, and objectively offensive unwelcome harassment based on her
disability. The district court observed that “[t]here does not appear to be a claim of ‘hostile
education environment’ recognized by the Sixth Circuit” under the ADA or Rehabilitation Act.
However, it analyzed Newell’s claim under the analogous Title IX framework for claims of hostile
educational environment based on sex and concluded that even if such a claim existed, summary
judgment in favor of CMU was warranted. The parties do not dispute this legal framework on
appeal. In the absence of a dispute over the issue between the parties and briefing fleshing out any
differences, we leave consideration of the framework’s acceptability for another day.
Assuming for purposes of argument that a claim for creating a hostile educational
environment exists under the ADA or Rehabilitation Act, it would be plaintiff’s burden to establish
that she experienced severe and pervasive harassment on the basis of her disability. Cf. Williams
v. Gen. Motors Corp., 187 F.3d 553, 560 (6th Cir. 1999) (Title VII); Doe, 103 F.3d at 515
5
Because we conclude that the district court properly granted CMU’s motion for summary
judgment, we need not consider its alternative argument that plaintiff failed to prove intentional
discrimination as required to recover monetary damages.
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No. 20-1864, Newell v. Cent. Mich. Univ. Bd. of Trs.
(“[T]he elements to state a supervisory hostile environment claim under Title VII equally apply
under Title IX.”). In other words, Newell must establish that her “educational experience was
‘permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or
pervasive [so as] to alter the conditions of [her]’ educational environment.” Doe v. Miami Univ.,
882 F.3d 579, 590 (6th Cir. 2018) (first alteration in original) (quoting Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21 (1993)). The parties agree that Newell would have to satisfy both a subjective and
objective component: “(a) the conduct must be severe or pervasive enough to create
an environment that a reasonable person would find hostile or abusive; and (b) [p]laintiff must
subjectively regard the environment as abusive.” Klemenic v. Ohio St. Univ., 10 F. Supp. 2d 911,
916 (S.D. Ohio 1998) (citing Harris, 510 U.S. at 21–22). When evaluating hostile environment
claims in other settings, we consider the frequency of the discriminatory conduct, its severity,
whether the conduct contained a physical threat or humiliation, the degree to which the conduct
affected the plaintiff’s performance, and whether the plaintiff suffered psychological harm as a
result of the conduct. Id.The district court concluded that no reasonable juror could find that Newell subjectively
regarded her educational environment as abusive:
Plaintiff does not allege that her scholastic performance dropped as a result of her
requests for accommodation or the alleged acts of retaliation by CMU staff. Rather,
Plaintiff maintained a 3.67 GPA. Plaintiff contends that she is currently on medical
leave, but this medical leave is taking place after a full semester in which her
requested accommodations were granted. Plaintiff claims that she intends to return
to CMU once she is physically able to do so. Plaintiff does not provide evidence
that she was humiliated, received discrimination based physical threats, or that she
required psychological therapy due to her experience at CMU. Without providing
evidence that aligns with the factors set by the Supreme Court, Plaintiff is unable
to establish the subjective component of the abusive educational environment test.
(Record citations omitted). Plaintiff’s arguments on appeal do not persuade us that the district
court erred. First, she says that the district court wrongly required her to establish each of the
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No. 20-1864, Newell v. Cent. Mich. Univ. Bd. of Trs.
factors enumerated in Klemenic. That is incorrect. The district court recognized that “no single
factor is dispositive,” and instead concluded that Newell had not provided evidence of any of the
factors. Second, plaintiff notes that she has “paid in full for her program,” so she has “no choice
but to return” after her medical leave. But it is not clear to us how her payments to the university
tend to prove or disprove that she was subject to a hostile educational environment during the time
covered by the complaint (though they may explain why she is returning).
Third, Newell says she presented evidence that her “psychological well-being suffered
because of the discrimination she was facing” because she was diagnosed with anxiety and irritable
bowel syndrome following the Spring 2017 semester. But again, Newell makes this claim without
any citation to the record. She also did not cite her diagnoses below as evidence of harassment in
response to CMU’s motion for summary judgment. Thus, plaintiff is attempting to build a better
case on appeal than she presented to the district court. We typically do not review forfeited
arguments like plaintiff’s, see Thomas M. Cooley Law Sch., 759 F.3d at 528 (“It is well-settled
that this court’s function is to review the case presented to the district court, rather than a better
case fashioned after an unfavorable order.”) (citation omitted)), and we see no reason to excuse
the forfeiture here, see Swanigan v. FCA US LLC, 938 F.3d 779, 788–89 (6th Cir. 2019).
Fourth, Newell argues that the district court erred by finding that CMU had not engaged in
any threatening behavior because “the discriminatory conduct committed by . . . CMU (i.e.,
denying Plaintiff-Appellant her reasonable accommodations) was entirely physically threatening
to Plaintiff-Appellant’s safety as she was continuously injured” because of the lack of
accommodations. Again, this is an argument presented for the first time on appeal, so it is
forfeited. Swanigan, 938 F.3d at 788–89.
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No. 20-1864, Newell v. Cent. Mich. Univ. Bd. of Trs.
Finally, Newell argues that she suffered a “complete breakdown” during the March 28
meeting with Silkwood-Sherer, citing portions of the transcript of that meeting. This argument
too was raised for the first time on appeal, and we decline to address it for the same reasons noted
above.
Accordingly, we affirm the district court’s grant of summary judgment in CMU’s favor on
Newell’s hostile-educational-environment claim.
IV.
For these reasons, we affirm the judgment of the district court.
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