Buxton v. Kurtinitis

• Citation: 862 F.3d 423
• Decision Date: 07 July 2017
• Docket Number: No. 16-1826,16-1826
• Parties: Dustin BUXTON, Plaintiff–Appellant, v. Sandra KURTINITIS, individually and in her official capacity as President of The Community College of Baltimore County; Carol Eustis, individually and in her official capacity as Dean of Instruction for the School of Health Professions at The Community College of Baltimore County; Adrienne Dougherty, individually and in her official capacity as Program Director and Coordinator of Radiation Therapy at The Community College of Baltimore County; Charles Martino, individually and in his official capacity as Academic Advisor for the School of Health Professions at The Community College of Baltimore County; Ebony Thomas, individually and in her official capacity as Coordinator for Selective Admissions in the School of Health Professions at The Community College of Baltimore County, Defendants–Appellees. Christian Legal Society; National Association of Evangelicals, Amici Supporting Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

862 F.3d 423

Dustin BUXTON, Plaintiff–Appellant,

v. Sandra KURTINITIS, individually and in her official capacity as President of The Community College of Baltimore County; Carol Eustis, individually and in her official capacity as Dean of Instruction for the School of Health Professions at The Community College of Baltimore County; Adrienne Dougherty, individually and in her official capacity as Program Director and Coordinator of Radiation Therapy at The Community College of Baltimore County; Charles Martino, individually and in his official capacity as Academic Advisor for the School of Health Professions at The Community College of Baltimore County; Ebony Thomas, individually and in her official capacity as Coordinator for Selective Admissions in the School of Health Professions at The Community College of Baltimore County, Defendants–Appellees.Christian Legal Society; National Association of Evangelicals, Amici Supporting Appellant.

No. 16-1826

United States Court of Appeals, Fourth Circuit.

Argued: May 10, 2017

Decided: July 7, 2017

ARGUED: Carly Farrell Gammill, AMERICAN CENTER FOR LAW & JUSTICE, Franklin, Tennessee, for Appellant. Peter Stephen Saucier, KOLLMAN & SAUCIER, P.A., Timonium, Maryland, for Appellees. ON BRIEF: Abigail A. Southerland, Franklin, Tennessee, Michelle K. Terry, Greenville, South Carolina, Francis J. Manion, AMERICAN CENTER FOR LAW & JUSTICE, New Hope, Kentucky; John Garza, GARZA LAW FIRM, P.A., Rockville, Maryland, for Appellant. Clifford B. Geiger, Bernadette M. Hunton, KOLLMAN & SAUCIER, P.A., Timonium, Maryland, for Appellees. Thomas C. Berg, Religious Liberty Appellate Clinic, UNIVERSITY OF ST. THOMAS SCHOOL OF LAW, Minneapolis, Minnesota; Kimberlee Wood Colby, CENTER FOR LAW AND RELIGIOUS FREEDOM, Springfield, Virginia, for Amici Curiae.

Before TRAXLER, FLOYD, and HARRIS, Circuit Judges.

Affirmed by published opinion. Judge Floyd wrote the opinion, in which Judge Traxler and Judge Harris joined.

FLOYD, Circuit Judge:

Plaintiff-Appellant, Dustin Buxton, applied and was denied admission into the Radiation Therapy Program (RTP) at the Community College of Baltimore County (CCBC) in 2013 and 2014. Buxton brought this action alleging that points were deducted from his application score and that he was denied admission because of his expression of his religious beliefs during his interview in violation of the Free Speech Clause, the Establishment Clause, and the Equal Protection Clause. The district court dismissed Buxton's Free Speech claim and granted summary judgment in favor of the defendants on Buxton's Establishment Clause and Equal Protection claims. Buxton timely appealed his Free Speech and Establishment Clause claims. We affirm.

I

Dustin Buxton applied to the RTP at the CCBC in 2013 and again in 2014. Adrienne Dougherty, is the Director of the RTP at the CCBC. The RTP is a competitive program, and Dougherty limits the number of persons who can be admitted to the RTP based on the availability of clinical placement opportunities. Around 15 students are admitted each year.

In order to meet the minimum qualification for consideration, applicants must have attained a minimum grade point average (GPA) of 2.5 and a grade of "C" or better in certain prerequisite courses. In one of the prerequisite courses, students complete an observation day at a local hospital, and radiation therapists working at the hospital provide Dougherty with feedback about the students they encounter.

At the first stage of the application process, applicants receive numerical scores based on (1) their GPA and (2) their observation day. The top qualified candidates are then invited to a second stage, which consists of a logic exam, a writing sample, and a panel interview. Applicants' final admissions scores are made up of three components: (1) GPA, worth 30%; (2) interview and observation day, worth 40%; and (3) a writing sample and critical thinking exam, worth a combined 30%. The candidates with the highest scores are admitted into the RTP.

Buxton applied for admission to the 2013 RTP and, based on his scores from the first stage, was invited to participate in the second stage of the application process. Buxton's final application score ranked 36th out of the 44 candidates who received an interview. Buxton's scores in each individual category were as follows: his writing sample scored a 6 out of a possible 12 (tied for 36th); his pre-requisite course GPA scored an 18 out of a possible 30 (tied for 21st); his observation day score was a 7.2 out of a possible 12 (tied for 35th); his logic exam score was a 15.66 out of a possible 18 (7th); and his interview score was a 9.52 out of a possible 28 points (33rd). See J.A. 144–51.

Dougherty's written review of Buxton's 2013 application states in its entirety:

The student did not receive very good feedback from his observation day. He told one of the therapists that he assumed he was guaranteed a spot in the program. He did state that he seemed like a bother to some of the therapists; however they felt he asked questions at inappropriate times, interrupting them at times, and were related to the engineering aspect of the field. In addition, the therapists said that he wrote down/typed everything they said. It was also noted that during a simulation procedure in which IV contrast was injected, he stated something along the lines that he did not sign on for this. This is minor, but the student did not follow directions when asked to initial the admissions process. When responding to the questions on the written sample, he did not fully read the questions and respond to them in the role of a student. The interview committee felt he was not a good fit for this field. His answers to several of the questions were very textbook and lacked interpersonal skills. When asked about important characteristics that a therapist should have he responded with "not to socialize or fraternize" and then in the next sentence he brought up a sense of levity and that it is good to laugh. He also brought up religion a great deal during the interview. Yes, this is a field that involves death and dying; but religion cannot be brought up in the clinic by therapist [sic] or students . He mentioned plans to go onto [sic] complete a Dosimetry Program, but I do not think he has researched this career path fully. University of Maryland does offer a 1-year program, but they receive approximately 100 applicants and only have 2 seats available. Physics and Dosimetry may be a possible career path for him, but he lacks the interpersonal skills for this field. If this is something he wants to continue to pursue, I would suggest at least a full week of observation at another facility. His pre-requisite grades could be more competitive (18/30). Linda Brothers may be able to assist with his interpersonal skills.

J.A. 36 (emphasis added).

In 2014, applications to the RTP nearly doubled. Of the 72 applicants who met the RTP's minimum qualifications for consideration, the CCBC decided to interview only the 36 highest-scoring candidates. The top 36 candidates were determined by ranking applicants by their observation day and GPA scores. Dougherty gave Buxton a score of "0" for his observation day, reportedly because he failed to follow Dougherty's recommendation following his 2013 request for feedback that he complete a week of observation days. Nine other candidates who, like Buxton, initially received observation day scores less than "10" were also given a "0" for their observation day score.

Once all of the applicants' observation day and GPA scores were combined and ranked, Buxton's scores did not place him among the top 36 candidates; therefore, he did not receive an interview for the 2014 RTP. No candidate with an observation day score of less than "10" received an interview, thus, even if Buxton would have received the same observation day score he received in 2013 (7.2), he still would have fallen short of the interview cutoff.

Buxton then sued Dougherty and a number of other CCBC employees for alleged violations of the Free Speech Clause, the Establishment Clause, and the Equal Protection Clause. Buxton alleged that the defendants discriminated against him because of his expression of his religious beliefs during his interview. In support of this allegation, Buxton relied heavily on Dougherty's written review, which stated: "[Buxton] brought up religion a great deal during the interview. Yes, this is a field that involves death and dying; but religion cannot be brought up in the clinic by therapist [sic] or students." J.A. 16.

Defendants moved to dismiss the complaint. As relevant here, the district court dismissed Buxton's Free Speech claim with prejudice as to all defendants. See Buxton v. Kurtinitis (Buxton I ), Civ. No. 14-2836, 2015 WL 3937930 (D. Md. June 25, 2015). Buxton was allowed to proceed to discovery on his Establishment Clause and Equal Protection claims against Dougherty only. Following discovery, Dougherty filed a motion for summary judgment as to Buxton's remaining claims, which the district court granted. See Buxton v. Kurtinitis (Buxton II ), Civ. No. 14-2836, 2016 WL 3582004 (D. Md. June 28, 2016).

Buxton timely appealed the dismissal of his Free Speech claim and the grant of summary judgment on his Establishment Clause claim. Buxton has not appealed the grant of summary judgment on his Equal Protection claim.

II

We review the district court's dismissal of Buxton's Free Speech claim as well as the district court's grant of summary judgment as to Buxton's Establishment Clause claim de novo. Woollard v. Gallagher , 712 F.3d 865, 873 (4th Cir. 2013) ; E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc. , 637 F.3d 435, 440 (4th Cir. 2011). We address each claim in turn.

A.

A plaintiff states a valid claim for First Amendment retaliation if the complaint satisfies the following elements: (1) the plaintiff "engaged in protected First Amendment activity," (2) "the defendants took some action that...