Dalgic v. Misericordia Univ.

• Decision Date: 03 July 2019
• Docket Number: NO. 3:16-CV-0443,3:16-CV-0443
• Parties: OZCAN DALGIC, Plaintiff, v. MISERICORDIA UNIVERSITY, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

OZCAN DALGIC, Plaintiff, v. MISERICORDIA UNIVERSITY, Defendant.

NO. 3:16-CV-0443

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

July 3, 2019

(JUDGE CAPUTO)

MEMORANDUM

Presently before me are cross-motions for summary judgment filed by Plaintiff Ozcan Dalgic ("Dalgic") (Doc. 50) and Defendant Misericordia University ("Misericordia") (Doc. 53). Dalgic attended and graduated from Misericordia's Doctor of Physical Therapy Degree Program in December 2013 while on an F-1 visa. As authorized by federal law, Dalgic sought to remain in the United States thereafter for post-completion Optional Practical Training ("OPT"), the application and approval process for which is set forth in 8 C.F.R. § 214.2(f)(11). In order to apply for OPT, the student must first have a recommendation from his or her university's Designated School Official ("DSO"). Pursuant to the regulations, a student must submit his or her OPT application within 30 days of the date the DSO enters the OPT recommendation into the Student and Exchange Visitor Information System ("SEVIS"). However, the student cannot submit the application until 90 days before his or her graduation date. In other words, the earliest the DSO can submit the OPT recommendation is 120 days before the student's graduation.

Dalgic's OPT application was denied in March 2014, which Dalgic claims was caused by the negligence of Misericordia's DSO prematurely submitting the OPT recommendation in July 2013, i.e., more than 120 days before his graduation. While Misericordia admits that it prematurely recommended Dalgic for OPT in July 2013, it contends that subsequent events that took place in December 2013 establish that Dalgic's own conduct caused the denial of his OPT application. Because the admissible record evidence demonstrates that there is no genuine issue of fact that Misericordia's negligence caused the denial of Dalgic's application to participate in OPT and he is entitled to judgment as a matter of law, Misericordia's motion for summary judgment will be denied and Dalgic's cross-motion for summary judgment as to liability will be granted.

I. Background

The facts are derived from the parties' factual statements, (see Doc. 51, Plaintiff's Statement of Material Facts, "Pl.'s SMF"; Doc. 54, Defendant's Statement of Material Facts, "Def.'s SMF"), their responsive factual statements, (see Doc. 59, Plaintiff's Counterstatement of Facts, "Pl.'s CSF"; Doc. 61, Defendant's Counterstatement of Facts, "Def.'s CSF"), and the relevant, admissible documents and testimony of record.¹

Dalgic was born in Turkey in 1980. (See Def.'s SMF, ¶¶ 1-2; Pl.'s CSF, ¶¶ 1-2). Dalgic came to the United States in 2005 on an F-1 visa. (See Def.'s SMF, ¶ 3; Pl.'s CSF, ¶ 3). Upon entering the United States, Dalgic attended several educational institutions where he studied biology and English. (See Pl.'s SMF, ¶ 2; Def.'s CSF, ¶ 2).

By 2011, Dalgic was in the position to pursue his goal of obtaining a physical therapy degree, so he enrolled in Misericordia's Doctor of Physical Therapy DegreeProgram with an anticipated graduation date in December 2013. (See Pl.'s SMF, ¶¶ 3-4; Def.'s CSF, ¶¶ 3-4). Misericordia was a certified member of the Student and Exchange Visitor Program ("SEVP"). (See Pl.'s SMF, ¶ 5; Def.'s CSF, ¶ 5).

Students graduating from SEVP institutions may be authorized to remain in the United States to participate in Optional Practical Training ("OPT"). See 8 C.F.R. 214.2(f)(10). The Code of Federal Regulations sets forth the "OPT application and approval process." Id. at § 214.2(f)(11). OPT can take place either before or after graduation. (See Dessoye Dep., 76:76:18-77:3).

As required by federal law, a SEVP-certified institution was required to employ a Designated School Official. (See Pl.'s SMF, ¶ 8; Def.'s CSF, ¶ 8). Misericordia employed Jane Dessoye ("Dessoye") as its DSO from 2003 through June 2016. (See Pl.'s SMF, ¶ 9; Def.'s CSF, ¶ 9).² A DSO's responsibilities include, inter alia, assisting students with applying for OPT, instructing students to submit the proper documentation for OPT, helping students with filling out important forms, and providing students with accurate information to maintain non-immigration student status. (See Dessoye Dep., 77:11-17, 79:5-19, 81:5-14, 83:10-16).

In July 2013, Dalgic and Dessoye had a meeting where they discussed Dalgic's graduation and his hope to participate in OPT thereafter. (See Dalgic Dep., 97:15-99:5). The parties do not dispute that Dessoye recommended Dalgic for OPT on July 24, 2013. (See Def.'s SMF, ¶ 7; Pl.'s CSF, ¶ 7). The parties do dispute, however, whether Dalgic requested Dessoye complete the recommendation at that time. (See id.). Either way, it is undisputed that this recommendation was submitted prematurely and prior to the time permitted by the applicable regulations. (See Pl.'s SMF, ¶ 22; Def.'s CSF, ¶ 22; see also Doc. 66, 8 (Misericordia characterizing the July 2013 recommendation as "premature")). Dessoye never cancelled her July 24, 2013recommendation. (See Pl.'s SMF, ¶ 14; Def.'s CSF, ¶ 14).

On December 4, 2013, Dessoye reprinted Dalgic's Form I-20. (See Def.'s SMF, ¶ 20; Pl.'s CSF, ¶ 20).³ The parties dispute the significance of that action. (See Def.'s SMF, ¶ 19; Pl.'s CSF, ¶ 19).⁴

Dalgic spoke with Dessoye about OPT again in December 2013. (See Def.'s SMF, ¶ 9; Pl.'s CSF, ¶ 9). Dessoye provided Dalgic with an OPT application packet. (See Def.'s SMF, ¶ 11; Pl.'s CMF, ¶ 11). According to Dalgic, the instructions in one of the documents provided by Dessoye were outdated and incorrectly indicated that the OPT application fee was $340.00. (See Dalgic Dep., 125:17-23). Dessoye, however, testified that it was "implausible" that she would have provided a copy of "incorrect instructions." (Dessoye Dep., 151:7-13). Dalgic did not confirm the correct fee prior to submitting his OPT application, stating that the instructions were provided by his advisor and he "100 percent trusted her." (Dalgic Dep., 128:16-130:9).

Dessoye assisted Dalgic with completing his OPT application, i.e., the Form I-765, "Application for Employment Authorization." (Dalgic Dep., 112:7-18; see also Dessoye Dep., 77:8-10).⁵ After the application was completed, Dalgic submitted his signed Form I-765 directly to United States Citizenship and Immigration Services ("USCIS"). (See Def.'s SMF, ¶¶ 22, 31; Pl.'s CSF, ¶¶ 22, 31).

USCIS received Dalgic's application on December 18, 2013. (See Def.'s SMF, ¶ 32; Pl.'s CSF, ¶ 32). USCIS returned Dalgic's application packet to him with a Form I-797C dated December 20, 2013 because "[t]he check amount is incorrect, or has not been provided." (Def.'s SMF, ¶ 33; Pl.'s CSF, ¶ 33). Dalgic received thisnotice prior to Christmas of 2013. (See Def.'s SMF, ¶ 35; Pl.'s CSF, ¶ 35).

Immediately after receiving that notice from USCIS, Dalgic called Dessoye to inform her that he received a letter saying the incorrect filing fee was submitted. (See Def.'s SMF, ¶ 36; Pl.'s CSF, ¶ 36). According to Dalgic, after he received that notice, Dessoye apologized for providing him with the incorrect filing fee amount, before providing him with the correct fee, i.e., $380.00. (See Dalgic Dep., 122:7-13, 220:11-22). Dalgic subsequently "double check[ed]" this amount online. (Id. at 122:18-123:9).

On January 7, 2014, Dalgic resubmitted his OPT application with the proper filing fee. (See Def.'s SMF, ¶ 39; Pl.'s CSF, ¶ 39). Dalgic received notice that his application with the proper filing fee was received by USCIS on January 9, 2014. (See Def.'s SMF, ¶ 40; Pl.'s CSF, ¶ 40).

Dalgic received a letter from USCIS dated March 18, 2014 informing him that his OPT application was denied. (See Def.'s SMF, ¶ 41; Pl.'s CSF, ¶ 41). That letter stated, in pertinent part:

The record shows that you filed your Form I-765 on January 09, 2014. You must file the Form I-765 with USCIS within 30 days of the date the Designated School Official (DSO) entered the recommendation for OPT into your SEVIS record. You applied for OPT on July 24, 2013. At the time of filing your Form I-765, more than 30 days had elapsed since your DSO entered the recommendation for OPT into your SEVIS record.

Therefore, your application for employment authorization is denied.

(Pl.'s SMF, Ex. "4"). The denial letter also informed Dalgic that if he disagreed with the decision or had additional evidence to submit, he could file a motion to reopen or a motion to reconsider. (See id.). Dalgic was advised that a motion to reopen "must state the new facts to be considered and must be supported by affidavits or other new documentary evidence," while a motion to reconsider required proof that "the decision was legally incorrect according to statute, regulation, and/or precedent decision." (Id.).

Upon receiving the denial letter, Dalgic immediately contacted Dessoye, who apologized and stated that she would see what she could do. (See Def.'s SMF, ¶¶ 42, 44; Pl.'s CSF, ¶¶ 42, 44).

On March 21, 2014, Dessoye sent a letter to USCIS stating:

I am writing to confirm that, as the Designated School Official for Misericordia University, I mistakenly submitted an OPT request for the above-named student on 07/24/2013. The student was not even scheduled to complete degree requirements until 12/18/2013. As such, the OPT request should not have been submitted at that point in time. On 01/22/2014, a second OPT request was submitted. On 03/18/2014, it was denied because the I-765 form was submitted more than 30 days after submission of the July 2013 OPT request.

Given the above, I am writing in support of the student's request to reopen or reconsider the decision. The original OPT submission was entirely an error on my part, an error for which I apologize. I respectfully request that the student be held harmless for this mistake and that his OPT request be approved.

(Pl.'s SMF, Ex. "3").

Dalgic met with Dessoye in April 2014. (See Def.'s SMF, ¶ 45; Pl.'s CSF, ¶ 45). Dessoye filled out the appeal paperwork,...