Craig Mershon v. St. Louis University ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
________________
No. 05-1192
________________
Craig Mershon, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
St. Louis University; St. Louis *
University Board of Trustees; * [PUBLISHED]
Nancy Siwak, Trustee; Joseph *
Hasten, Trustee; Jo Curran, Trustee; *
Richard Baron, Trustee; Lawrence *
Legrand, Trustee; Robin Smith, *
Trustee, *
*
Appellees. *
________________
Submitted: October 10, 2005
Filed: April 5, 2006
________________
Before RILEY, HANSEN, and COLLOTON, Circuit Judges.
________________
HANSEN, Circuit Judge.
Craig Mershon appeals the district court's1 grant of summary judgment to St.
Louis University and its trustees (collectively "the University") in this action alleging
a failure to accommodate and retaliation in violation of Title III of the Americans with
Disabilities Act of 1990 (ADA), 42 U.S.C. § 12182 (2000), and Section 504 of the
Rehabilitation Act of 1973 as amended, 29 U.S.C. § 794 (2000). We affirm.
I.
The following is a summary of the undisputed facts. Mershon is wheelchair-
bound and sight impaired due to complications of cerebral palsy. He took courses at
St. Louis University from 1997 through the spring of 2001 in both graduate and
undergraduate studies. Mershon first applied to the graduate school in 1997 to pursue
a Master of Arts degree in the Department of English as a classified student. While
the application process was pending and the University was awaiting the receipt of
necessary application materials, the University permitted Mershon to enroll in classes
as an unclassified graduate student and later upgraded his status, pursuant to
Mershon's request, to that of a conditional admit.2 The University allowed him to
remain in conditional status for two terms instead of following the usual one-term
limit. When Mershon sought to change his proposed field of study from English to
American Studies, the graduate school granted this request, changed his field of study,
and reclassified his status from a conditional admit to an unclassified graduate student
1
The Honorable Henry Edward Autrey, United States District Judge for the
Eastern District of Missouri.
2
A "classified" graduate student is one who has been admitted into the graduate
school to pursue an advanced degree, an "unclassified" graduate student is not
formally pursuing a degree but is typically completing prerequisites for subsequent
degree pursuit or taking courses for educational enrichment, and a "conditional"
student typically has a classified application in progress and has been formally
admitted to permit the initiation of course work prior to full approval of classified
status. (Appellees' App. at 25.)
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with an incomplete application. To complete his graduate school application, he still
needed to submit additional materials.
In early August 1998, the University granted Mershon's application to enroll in
the College of Arts and Sciences as an undergraduate student on a probationary basis,
due to his poor academic performance (he had a cumulative graduate grade point
average of 1.417) (Appellees’ App. at 21). This status rendered him ineligible to
maintain his enrollment as an unclassified graduate student. Mershon stated that he
received several requested accommodations from 1998 through 2000, including large
print materials, a tape recorder, note takers, and extra time. (Appellant's App.,
Mershon's Depo. at 19-20.) The University changed his status from probationary to
that of a classified student with an undeclared major to enable him to qualify for
financial aid because he was not eligible for financial assistance from the state
vocational rehabilitation agency when he was not taking graduate-level courses. After
the fall 1998 term, his undergraduate GPA was 3.5. His cumulative GPA fell to 3.0
by the spring 1999 term, and by the end of the spring semester for the 1999-2000
academic year, Mershon's cumulative GPA had fallen to 2.423 as a probationary
undergraduate student. (See Appellees’ App. at 20.) Mershon asserts that the
University stopped providing accommodations in 2000, resulting in his inability to
complete course work for a number of courses.
In July 2000, Mershon requested reinstatement as an unclassified graduate
student. This status would entitle him to certain benefits and financial support from
the state rehabilitation agency. Dr. Mancini, the Chair of the Department of American
Studies, refused to allow Mershon to enroll in a graduate-level American Studies
course until he completed his graduate school application, eliminated several
incomplete undergraduate grades, and was admitted to the graduate school. Mershon's
graduate school application would not be complete until he had taken and submitted
his Graduate Record Examination General Test score and submitted a combined
autobiographical sketch/statement of career goals. Mershon protested this decision
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by meeting with the University's Associate Provost, Dr. Ellen Harshman. Mershon
explained his need to be an unclassified graduate student in order to obtain benefits
and financial support from the state rehabilitation agency, but Dr. Harshman would
not interfere with Dr. Mancini's academic judgment. Dr. Harshman stated in her
affidavit that she had several meetings with Mershon regarding academic matters,
library privileges, and accommodation concerns. Dr. Harshman stated that she had
to instruct Mershon to limit his contact with her office staff because his behavior was
aggressive and upsetting to her staff.
In October 2000, Mershon petitioned the graduate school to be classified as an
unclassified graduate student in the American Studies Department. The University
granted the petition, certified him as eligible to receive federal financial aid, and
changed his status from a classified undergraduate student to an unclassified graduate
student with an open and incomplete application file to become a graduate student in
American Studies. As such, to register for a particular graduate course, Mershon was
required to obtain prior permission of the department chair of any department offering
a course he wished to take. During both the fall 2000 and spring 2001 terms, Mershon
attempted 12 credit hours and earned 0 credit hours. In January 2001, the Chair of the
History Department denied Mershon's request to register as an unclassified graduate
student in a graduate-level history course because Mershon had not been formally
admitted into that department's graduate program, his GPA was below the standard
accepted by the department, and he lacked adequate undergraduate course preparation.
In May 2001, the University's Director of Financial Aid disqualified Mershon
from receiving federal financial aid because he did not meet the academic progress
requirements established by federal regulation – his cumulative GPA as an
unclassified graduate student was 1.214 in the spring of 2001 (Appellees’ App. at 22),
and his cumulative GPA in undergraduate-level courses was 2.4 (id. at 20). Mershon
registered for three courses in August 2001, but the University administratively
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dropped his enrollment because he failed to make adequate payment of tuition, as
required of all students.
In November 2001, Jan Chapin, an investigator for the Office for Civil Rights,
United States Department of Education, reported to Officer David Wright of the
United States Federal Protection Services (now part of the Department of Homeland
Security) that Mershon had contacted her by telephone regarding a potential complaint
of discrimination against the University. She represented to Officer Wright that
during their phone conversation Mershon had twice stated, "[M]y professor makes me
so mad that I want to put a bullet in his head." (Appellant's Add. at 9.) She reported
that Mershon disclosed to her that the professor of whom he spoke was Dr. Matthew
Mancini, who, as Chair of the Department of American Studies, had previously
refused Mershon admission to a graduate level course.
Officer Wright contacted Jack Titone, the University's Director of Public
Safety, and relayed the report made by Chapin. Director Titone, in turn, consulted the
Associate Provost for Enrollment Management, Edwin Harris, informing him of the
threats and requesting confirmation of whether Mershon was currently enrolled as a
student or could be restricted from campus. Harris confirmed that Mershon was not
enrolled and agreed that the University could prohibit him from entering its premises.
Director Titone then issued a directive to University Department of Public Safety
Officers informing them that Mershon should be prohibited from entering the campus
because of the threats he had made against a professor. The same day, three officers
stopped Mershon from entering the campus.
Mershon filed suit against the University and its trustees, asserting
discrimination on the basis of his disability in the failure to accommodate him while
he was a student and retaliation for expelling him from campus after he complained
of the failure to accommodate. The district court granted the University's motion for
summary judgment, concluding that Mershon had failed to present any evidence of
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a retaliatory motive in his expulsion from campus or of a failure to accommodate.
Mershon appeals.
II.
"We review the grant of summary judgment de novo, viewing the facts in the
light most favorable to the non-moving party. In doing so we apply the same standard
as the district court and may affirm on any grounds supported by the record."
Simpson v. Des Moines Water Works, 425 F.3d 538, 541 (8th Cir. 2005) (citations
omitted). Summary judgment is appropriate if the record "show[s] that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed. R. Civ. P. 56(c). "Only disputes over facts that
might affect the outcome of the suit under the governing law will properly preclude
the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). While summary judgment must be used with caution in discrimination cases
due to the fact-specific nature of each case, it nonetheless may be proper "when a
plaintiff fails to establish a factual dispute on an essential element of [the] case."
Simpson, 425 F.3d at 542 (internal quotations omitted).
In the absence of direct evidence of discrimination, we analyze discrimination
and retaliation claims under the burden-shifting framework announced in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), and refined in Texas Dep't of Comty.
Affairs v. Burdine, 450 U.S. 248 (1981), and St. Mary's Honor Ctr. v. Hicks, 509 U.S.
502 (1993). See Amir v. St. Louis Univ., 184 F.3d 1017, 1025 (8th Cir. 1999). We
analyze claims of failure to accommodate under "a modified burden-shifting analysis,"
because a discriminatory intent is not at issue. Peebles v. Potter, 354 F.3d 761, 766
(8th Cir. 2004) (internal marks omitted).
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A. Retaliation
Mershon argues that the district court erred in finding that he failed to establish
a prima facie case of retaliation. The ADA prohibits discrimination against any
individual who has opposed an unlawful act of discrimination, made a charge of
discrimination, or participated in any manner in an investigation or proceeding under
the ADA.3 42 U.S.C. § 12203(a). To establish a prima facie case of retaliation and
survive summary judgment, a plaintiff must demonstrate "(1) that he engaged in a
statutorily protected activity, (2) that an adverse action was taken against him, and (3)
a causal connection between the adverse action and the protected activity." Amir, 184
F.3d at 1025. If this prima facie showing is made, "the burden then shifts to the
defendant to proffer a legitimate nondiscriminatory reason for the adverse action." Id.
at 1025-26 (citing Hicks, 509 U.S. at 506-07). "The burden of production then shifts
back to the plaintiff to show that the defendant's reason is a pretext for
discrimination." Id. at 1026 (citing Hicks, 509 U.S. at 507-08).
Mershon established a prima facie case sufficient to shift the burden of
production to the University. He demonstrated (1) that in November 2001 he called
Jan Chapin of the Office for Civil Rights of the United States Department of
Education to complain that he believed the University was not accommodating his
disability, which is a statutorily protected activity; (2) that the University took an
adverse action against him by banning him from the campus; and (3) that the adverse
action, which occurred the very next day when he attempted to enter the campus, was
causally related to his telephone call to Chapin. The burden then shifted to the
University to proffer a legitimate nondiscriminatory explanation for the adverse
action. The University presented evidence indicating that Mershon's complaint to
3
We will refer only to the ADA, but the legal principles involved are equally
applicable to claims under the Rehabilitation Act. See Perkins v. St. Louis County
Water Co., 160 F.3d 446, 448 (8th Cir. 1998); see also Hoyt v. St. Mary's Rehab. Ctr.,
711 F.2d 864, 867 (8th Cir. 1983) (noting that retaliation against persons who make
complaints under the Rehabilitation Act is actionable).
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Chapin was perceived as a threat to harm a professor and that campus security simply
acted to protect the University faculty and students from threatened violence. The
district court concluded that Mershon failed to present evidence sufficient to show that
the University's decision to ban him from campus was a mere pretext for disability
discrimination rather than a legitimate response to a perceived threat. After a
thorough review of the record, we agree.
Mershon argues that he never threatened to harm Dr. Mancini when he spoke
to Chapin, and thus, a question of fact existed and the district court impermissibly
resolved a credibility determination. In the summary judgment context, we accept
Mershon's statements of fact and do not resolve credibility disputes. See Yates v.
Rexton, Inc., 267 F.3d 793, 800 (8th Cir. 2001) ("In determining whether a plaintiff
has met its burden with respect to pretext in a summary judgment motion, a district
court is prohibited from making a credibility judgment or a factual finding from
conflicting evidence."). Whether Mershon actually made threats to harm Dr. Mancini
was a fact in dispute, but this fact did not preclude summary judgment. Although
Mershon denied having made the threats to harm Dr. Mancini, Mershon admitted that
he made a phone call to Chapin complaining about Dr. Mancini's refusal to allow him
to register and the University's alleged failure to accommodate him. Mershon did not
dispute that Chapin sincerely perceived that he had made a threat against Dr. Mancini,
nor did he dispute that Chapin communicated to others her perception that he had
made a threat. (Appellees' Add. at 10-11.) Cf. Johnson v. AT&T Corp., 422 F.3d
756, 762 (8th Cir. 2005) ("[T]he proper inquiry is not whether AT&T was factually
correct in determining that Johnson had made the bomb threats. Rather, the proper
inquiry is whether AT&T honestly believed that Johnson had made the bomb
threats.") Thus, even assuming as true that Mershon never threatened to harm Dr.
Mancini, there is no dispute that the University reasonably believed and acted upon
Chapin's report and her perception that Mershon had made a threat against a faculty
member. The district court did not make an impermissible credibility determination.
See Euerle-Wehle v. United Parcel Serv., Inc., 181 F.3d 898, 900 (8th Cir. 1999)
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(concluding that the defendant, not the district court, had made the credibility
determinations and had done so "reasonably and in good faith").
Once the University set forth a legitimate nondiscriminatory reason for the
adverse action of banning Mershon from campus, Mershon had the burden to establish
"that he was the victim of intentional discrimination 'by showing that the
[University's] proffered explanation is unworthy of credence.'" Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (quoting Burdine, 450 U.S. at 256).
Mershon made no showing that the University's proffered explanation for the adverse
action was false or that the University acted in bad faith in relying on Chapin's report.
To the contrary, Mershon admitted that the University acted upon a perceived threat
when it banned him from the campus. Even assuming, as Mershon asserts, that this
underlying reason was false because he had in fact made no threat, Mershon presented
no evidence from which to conclude that the University officials knew or even
suspected as much. Cf. Johnson, 422 F.3d at 763 (stating that "even if AT&T was
mistaken in its belief that Michael Johnson had made the threats, any such mistake
does not automatically prove that AT&T was instead motivated by unlawful
discrimination;" asserted reason must be a pretext for discrimination).
Mershon asserts that the short amount of time between his conversation with
Chapin and the University's adverse action against him is suspicious and lends an
inference of discrimination on account of his disability. Our review of the record
convinces us that the timing of Mershon's expulsion from campus casts no doubt on
the veracity of the University's explanation. The close proximity between his
conversation with Chapin and the University's swift action instead supports its
assertion that it acted quickly out of a legitimate concern for the safety of its faculty
and students, and nothing in the record indicates that the University's explanation was
a mere pretext for discrimination. See Euerle-Wehle, 181 F.3d at 900 (finding no
pretext where there was no evidence that the reasons given were an attempt "to
disguise an illegal discriminatory motive").
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B. Failure to Accommodate
Mershon argues that the district court erred in granting summary judgment on
his ADA and Rehabilitation Act claims that the University failed to provide him with
reasonable accommodations for his disability. Title III of the ADA prohibits a private
person who owns a place of public accommodation from discriminating against an
individual "on the basis of a 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. § 12182(a). Discrimination under Title III specifically
includes the failure to make reasonable modifications in policies, practices, or
procedure to accommodate a disabled individual, unless the entity can demonstrate
that making such modifications would fundamentally alter the nature of the services.
42 U.S.C. § 12182(b)(2)(A)(ii).
Likewise, the Rehabilitation Act requires reasonable accommodations when an
"otherwise qualified" disabled student, 29 U.S.C. § 794(a), "would otherwise be
denied meaningful access to a university," Stern v. Univ. of Osteopathic Med. &
Health Sciences, 220 F.3d 906, 908 (8th Cir. 2000). Title III of the ADA does not
expressly articulate an "otherwise qualified" standard (in most circumstances, no
qualifications are required to enjoy a public accommodation as secured by Title III).
Basic qualifications come into play, however, when the context is that of post-
secondary education. In this context, the "otherwise qualified" idea is implicit in Title
III's acknowledgment, noted above, that requested modifications need not be provided
if they will fundamentally alter the nature of the program. See 42 U.S.C.
§ 12182(b)(2)(A)(ii). It is beyond question that it would fundamentally alter the
nature of a graduate program to require the admission of a disabled student who
cannot, with reasonable accommodations, otherwise meet the academic standards of
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the program. An educational institution is not required by the Rehabilitation Act or
the ADA to lower its academic standards for a professional degree.4
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," Amir, 184 F.3d at 1027.5 See 42 U.S.C. § 12182(b)(2)(A)(ii); 29
U.S.C. § 794(a).
4
While there are minor differences between Title III of the ADA and the
Rehabilitation Act, none of those differences are material in this case. We will
therefore consider cases dealing with each Act as "applicable and interchangeable."
Stern, 220 F.3d at 908 (internal quotations omitted). See Amir, 184 F.3d at 1029 n.5
(noting Rehabilitation Act claims are analyzed similar to ADA claims, except for the
Rehabilitation Act's requirement that a person's disability serve as the sole impetus for
an adverse action); Gorman v. Bartch, 152 F.3d 907, 912 (8th Cir. 1998) ("The ADA
has no federal funding requirement, but it is otherwise similar in substance to the
Rehabilitation Act, and cases interpreting either are applicable and interchangeable."
(internal marks omitted)).
5
The statement of elements for a Title III discrimination claim listed in Amir
also includes the element of an adverse action based upon the plaintiff's disability.
184 F.3d at 1027. We eliminate that stated element from our rendition of the standard
in this case only because Mershon alleges a failure to accommodate as the sole act of
discrimination here (apart from retaliation which is separately analyzed above).
Because the alleged failure to accommodate is the adverse action and no other act is
claimed as discriminatory, there is no requirement to demonstrate any adverse action
other than the failure to accommodate itself. See Peebles, 354 F.3d at 766 (noting that
the failure to accommodate is a separate form of prohibited discrimination).
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First, there is no real dispute here that Mershon is disabled within the meaning
of the ADA and the Rehabilitation Act. Second, St. Louis University is a place of
public accommodation within the meaning of the ADA and receives federal funding
for purposes of the Rehabilitation Act. See Amir, 184 F.3d at 1028 (holding that "St.
Louis University maintains both an undergraduate division as well as graduate
programs in such areas as law, business, and medicine. Hence, it is a place of public
accommodation under the ADA.").
As to the third requirement, Mershon bears the initial burden of demonstrating
that he requested reasonable accommodations, see US Airways, Inc. v. Barnett, 535
U.S. 391, 401-02 (2002), and that those accommodations would render him otherwise
qualified for admission to the professional degree program, see Falcone v. Univ. of
Minn., 388 F.3d 656, 660 (8th Cir. 2004), cert. denied, 125 S. Ct. 2305 (2005). In his
affidavit, Mershon vaguely asserts that he sent numerous letters and made phone calls
to University officials between 1998 and 2001 requesting accommodations and that
he was unable to complete course work due to the University's failure to provide them.
Mershon admits, however, that the University provided several of his requested
accommodations from 1998 through sometime in 2000, such as large print materials
from one professor, a tape recorder, note takers, and extra time, and he stated that he
had obtained his own software. He also asserts that the University stopped providing
accommodations in 2000 and also asserts that he never received priority registration,
computer software, tape recorded lectures, books on tape, and enlarged print
documents and books.
We conclude that Mershon's assertions are much too general and conclusory to
demonstrate that he requested reasonable specific accommodations that would have
rendered him qualified for admission into the graduate school or that the University
unreasonably failed to provide every requested accommodation. The district court
found, "Plaintiff's academic record is replete with defendants' efforts to accommodate
him in his academic endeavors until he became a perceived threat." (Appellant's Add.
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at 17.) We agree with the district court that the record indicates the University offered
Mershon many accommodations, such as many changes in his academic status and
permission to remain in conditional academic status longer than school policy
permitted, as well as the accommodations that he admitted receiving in some classes.
Mershon's list of accommodations that he did not receive does not specifically identify
which were sought and rejected for any particular course, nor does he explain how
each requested accommodation was necessary to enable him to participate in light of
his disabilities and the particular course requirements. His conclusory assertions that
he made many phone calls and wrote many letters provide no basis for evaluating
whether each request was adequately communicated to the University regarding a
specific course or whether each was necessary to enable him to participate in a
particular course in light of his disability. See Stern, 220 F.3d at 908 ("In order to be
a reasonable accommodation, any modifications requested in a program must be
related to the disability.")
Mershon complains that the University stopped providing accommodations
sometime in 2000 and that this resulted in several incomplete grades in courses that
he does not identify and for reasons not clearly articulated. Again, even accepting his
conclusory allegations as true, Mershon's lack of specificity is an obstacle to
determining whether he requested and was denied reasonable accommodations. "A
plaintiff may not merely point to unsupported self-serving allegations, but must
substantiate his allegations with sufficient probative evidence that would permit a
finding in his favor." Bass v. SBC Communications, Inc., 418 F.3d 870, 872-73 (8th
Cir. 2005).
The record also indicates that Mershon never completed his graduate school
application, he lacked undergraduate course work preparation, and his overall
academic performance was not up to the standard necessary for admission into the
graduate school. "When the accommodation involves an academic decision, 'courts
should show great respect for the faculty's professional judgment.'" Amir, 184 F.3d
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at 1028 (quoting Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985)). See
Falcone, 388 F.3d at 659 ("'We will not invade a university's province concerning
academic matters in the absence of compelling evidence that the academic policy is
a pretext for [disability] discrimination.'") (quoting Amir, 184 F.3d at 1029, and
alteration in original). Mershon has not demonstrated that he was otherwise qualified,
with reasonable specific accommodations, to meet the prerequisites for admission into
the graduate school program.
Mershon also asserts that the University failed to engage in an interactive
process despite his "countless letters, phone calls, and personal visits" attempting to
obtain accommodations. (Appellant's Br. at 21.) "Even if such an interactive process
is required in an academic setting," Stern, 220 F.3d at 909, Mershon nevertheless
would bear the initial burden of demonstrating that reasonable accommodations
would render him qualified for admission into the graduate school. Mershon failed
to do so.
III.
Accordingly, we affirm the judgment of the district court.
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