Al-Asbahi v. W. Va. Univ. Bd. of Governors
| Decision Date | 30 January 2017 |
| Docket Number | CIVIL ACTION NO. 1:15CV144 |
| Parties | BASIL AL-ASBAHI, Plaintiff, v. THE WEST VIRGINIA UNIVERSITY BOARD OF GOVERNORS, THE WEST VIRGINIA UNIVERSITY SCHOOL OF PHARMACY, DR. ELIZABETH SCHARMAN, DR. TERRENCE L. SCHWINGHAMMER, DR. JAY L. MARTELLO, DR. PATRICIA CHASE, DR. LENA MAYNOR, DR. MARY EULER, DR. CHRISTOPHER C. COLENDA, and DR. CHADRICK LOWTHER, in their official and individual capacities, Defendants. |
| Court | U.S. District Court — Northern District of West Virginia |
(Judge Keeley)
Pending for consideration is the motion for summary judgment (dkt. no. 49) filed collectively by the defendants. Also pending is the motion for partial summary judgment (dkt. no. 52) filed by the plaintiff, Basil Al-Asbahi ("Al-Asbahi"). For the reasons that follow, the Court GRANTS the defendants' motion and DENIES Al-Asbahi's motion.
1. FACTUAL BACKGROUND1
Al-Asbahi is Syrian of Arabic descent, a practitioner of Islam, a native of Logan, West Virginia, and a graduate of MarshallUniversity. On August 24, 2009, the West Virginia University School of Pharmacy ("SOP") admitted him into its Doctors of Pharmacy Program ("Program"). The Program normally consists of eight semesters over four years with the first six consisting of "didactic" or classroom instruction, and the remaining two consisting of "experiential" rotations. Rotations are five weeks in length and administered by a "preceptor" who supervises and grades the student's performance. Preceptors may be faculty members or practicing pharmacists working at various sites throughout the state.
Al-Asbahi began to struggle early in the Program. In his first semester, Fall 2009, he received a "D" in "PHAR 702 - Physical Pharmacy," which automatically placed him on academic probation (dkt. no. 49-1 at 119-21). His probationary status meant that a second "D" would, at a minimum, "necessitate repeating all required courses with a grade lower than 'C'." Id. at 119. Finally, the terms of his probation mandated that he maintain a semester grade point average of 2.5 or higher in his elective courses, and that he receive grades of "C" or better in all of his Spring 2010 classes before the SOP would lift his probation. Id. Al-Asbahi complied withthe terms of his probation during the following semester, and the SOP lifted his probationary status.
In his third semester, Fall 2010, however, Al-Asbahi regressed, earning two grades of "D" and a semester grade point average of 2.07.2 Consequently, on December 29, 2010, the SOP's Academic Professional Standards Committee ("Committee")3 informed him that it was recommending to Dean Patricia Chase ("Dean Chase") that she dismiss him from the Program (dkt. no. 49-1 at 125). Al-Asbahi appealed the recommendation. Following a hearing on January 10, 2011, the Committee denied his appeal, reasoning that "in light of the objective academic data we feel continuation through the program at this time is not appropriate" (dkt. no. 49-1 at 138).
On January 20, 2011, Al-Asbahi submitted a letter to the Committee, together with a proposed study plan, seeking permission to apply for readmission to the Program. After reviewing his submissions, the Committee recommended to Dean Chase that sheconsider Al-Asbahi for readmission in the Fall 2011 semester — but only under certain explicit conditions. By letter dated March 4, 2011, Dean Chase accepted the Committee's recommendation, but with some modifications. As an initial matter, she required that Al-Asbahi agree to enroll in and satisfactorily complete alternative course work prior to his readmission in August, 2011. If he complied, the SOP would readmit Al-Asbahi as a "P2" (second year pharmacy student), subject to the following additional conditions for the remainder of his time in the Program:
Dean Chase also warned Al-Asbahi that he was in "an extremely tenuous position," as this was "one final opportunity to demonstrate [he] should receive the Pharm D. degree from WVU" (dkt. no. 49-1 at 136). Al-Asbahi accepted these conditions, enrolled in and passed a pharmacology course at Duquesne University, and, on June 17, 2011, submitted his application for readmission to the Program for the Fall 2011 semester, which the SOP granted. Id. at 128-29. During the next three semesters, Fall 2011, Spring 2012, and Fall 2012, Al-Asbahi progressed in the Program without incident, earning grade point averages ("GPA") of 3.20, 3.06, and 3.13 respectively (dkt. no. 53 at 39).
Nevertheless, in the Spring 2013 semester, Al-Asbahi once again struggled. As it does following each semester, the Committee reviewed every SOP student's academic progress (dkt. no. 49-1 at 119). In reviewing his progress, it realized that Al-Asbahi received three grades of "C", making his semester GPA 2.37. Consequently, because he fell below the 2.5 minimum GPA threshold established bythe terms of his readmission, the Committee recommended that Dean Chase dismiss Al-Asbahi from the Program (dkt. no. 49-1 at 155).
At the request of Dean Chase, however, the Committee spared him from dismissal. Instead, it formulated a remediation plan, which the Dean approved, that was intended to improve Al-Asbahi's chances at successfully completing the Program and passing his Board examination. Id. In addition to continuing all of the previously imposed terms of his readmission, the Committee also required that he study for and retake all the examinations for "Pharmacotherapeutics IV - PHAR 740" and "Pharmacokinetics - PHAR 741." Id. at 143. Furthermore, the SOP would inform all of the preceptors for his experiential classes that Al-Asbahi would "require close monitoring . . . while on their rotation." Id. Finally, the Committee noted Al-Asbahi's "history of marginal performance" and reminded him that his failure to pass any competency in any rotation, up to and including his final one, or his failure to receive grades of at least 70% on all of the retaken exams, would result in his dismissal from the program. Id.
Al-Asbahi appealed the remediation plan, claiming that it set him up to fail and that he was being treated unfairly.7 Id. at 146. Dr. Elizabeth Scharman ("Scharman"), Chair of the Committee, informed Dean Chase that the Committee was not inclined to hear his appeal and suggested instead that perhaps she should personally review his appeal, to which Dean Chase responded that Al-Asbahi should first be given a chance to meet with the Committee. Id. at 154-55. Following a hearing on July 3, 2013, the Committee denied Al-Asbahi's appeal, noting that "[i]n light of the objective academic data, we feel that decreasing the rigorousness of the remediation plan would not be appropriate." Id. at 159. Unsatisfied, he then appealed the Committee's decision to Dean Chase. Id. at 161.
On August 19, 2013, Dean Chase, together with Dr. Mary Euler ("Euler"), Associate Dean for Student Services, met with Al-Asbahi and his parents to discuss the remediation plan and the Committee's decision. Id. at 163. Once again, Dean Chase modified the Committee's recommendation in Al-Asbahi's favor, eliminating therequirement that he retake and pass the exams for "Pharmacotherapeutics IV - PHAR 740," but leaving all the other requirements intact. Id. During his deposition, Al-Asbahi indicated that he was "pleased" with this outcome. Id. at 21.
Al-Asbahi then began what would have been his final year in the Program, which consisted solely of experiential rotations, also referred to as "Blocks."8 The preceptor for his fourth rotation, Acute Care I, was defendant, Dr. Chadrick Lowther ("Lowther"), a non-faculty, cardiac clinical specialist at the Charleston Area Medical Center ("CAMC"). Al-Asbahi knew that Acute Care I was one of the more difficult rotations, and that Lowther in particular had a reputation for being a difficult preceptor (dkt. no. 49-1 at 25, 28). Al-Asbahi's rotation with Lowther was short-lived.
Within the rotation's first two days,9 Lowther began to notice what he considered to be substantial deficiencies in Al-Asbahi's academic performance and knowledge base (dkt. no. 49-4 at 5).Concerned, Lowther informed his immediate supervisor at CAMC, the Director of Clinical Services, Dr. Brian Hodges ("Hodges"), who in turn told him to inform the head of the SOP's experiential learning program, Dr. Lena Maynor ("Maynor"). Id. at 6; see also dkt. no. 56 at 37 (). At Maynor's request, Lowther began to track Al-Asbahi's progress in the rotation, keeping written notes detailing his performance on a daily basis. Id.; dkt. no. 49-1 at 236-43.
On October 1, 2013, just over two weeks after Al-Asbahi had begun his rotation with Lowther, Hodges emailed Maynor to inform her that, based on his own "observation as clinical director, supervising and evaluating Mr. Al-Asbahi is taking an undue amount of time and effort, and is preventing his preceptor from the efficient conduct of his responsibilities to CAMC" (dkt. no. 49-1 at 245). Consequently, Hodges asked that the SOP "remove [Al-Asbahi] from his experience immediately, so that the preceptor may return to completing his normal duties." Id. The next day, Hodges told Al-Asbahi that he was pulling him off the rotation to avoid a failing grade. Maynor also informed Al-Asbahi by email dated October 1, 2013, and in a telephone call on October 2, that he...
To continue reading
Request your trial