Dean v. Univ. At Buffalo Sch. of Med. & Biomedical Scis.

• Decision Date: 06 October 2015
• Docket Number: Docket No. 14–1546–cv.
• Citation: 804 F.3d 178
• Parties: Maxiam DEAN, Plaintiff–Appellant, v. UNIVERSITY AT BUFFALO SCHOOL OF MEDICINE AND BIOMEDICAL SCIENCES, State University of New York, Michael E. Cain, M.D., Individually and in his official capacity as Dean of the University at Buffalo School of Medicine and Biomedical Sciences, Nancy Nielsen, M.D., Ph.D., Individually and in her official capacity as Senior Associate Dean of the University at Buffalo School of Medicine and Biomedical Sciences, Defendants–Appellees.
• Court: U.S. Court of Appeals — Second Circuit

804 F.3d 178

Maxiam DEAN, Plaintiff–Appellant

v.UNIVERSITY AT BUFFALO SCHOOL OF MEDICINE AND BIOMEDICAL SCIENCES, State University of New York, Michael E. Cain, M.D., Individually and in his official capacity as Dean of the University at Buffalo School of Medicine and Biomedical Sciences, Nancy Nielsen, M.D., Ph.D., Individually and in her official capacity as Senior Associate Dean of the University at Buffalo School of Medicine and Biomedical Sciences, Defendants–Appellees.

Docket No. 14–1546–cv.

United States Court of Appeals, Second Circuit.

Argued: Feb. 19, 2015.

Decided: Oct. 6, 2015.

Parker R. Mackay (David J. Seeger, Buffalo, N.Y., on the brief), Kenmore, N.Y., for Plaintiff–Appellant.

Laura Etlinger, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Andrea Oser, Deputy Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, Albany, N.Y. for Defendants–Appellees.

Before: WINTER, POOLER, SACK, Circuit Judges.

Opinion

POOLER, Circuit Judge:

Plaintiff–Appellant Maxiam Dean appeals from the judgment of the United States District Court for the Western District of New York (William M. Skretny, J. ) granting summary judgment to the University at Buffalo School of Medicine and Biomedical Sciences (“UBMED”), State University of New York (“SUNY”), Michael E. Cain, and Nancy Nielsen (collectively “Defendants”) and dismissing his complaint. Dean brought suit under, inter alia, Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132 ; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ; and 42 USC § 1983 for alleged violations of the Due Process Clause of the United States Constitution. After failing to sit for and pass his third attempt at Step 1 of the United States Medical Licensing Examination (“USMLE”) by the deadline set by UBMED, Dean was dismissed from the M.D. program. Because a trier of fact could find that defendants did not grant the accommodation Dean requested for his mental-health condition and failed to provide a “plainly reasonable” alternative or attempt to show that Dean's proposed modification was unreasonable, the district court erred in granting summary judgment on the ADA and Rehabilitation Act claims. However, having received notice of potential termination from the program and a “careful and deliberate” decision Dean was, as a matter of law, provided the procedural process due for an academic dismissal.

Accordingly, we affirm the grant of summary judgment to Defendants as to Dean's due process claim, vacate the remainder of the judgment, and remand to the district court.

BACKGROUND

Maxiam Dean enrolled in the four-year M.D. course at UBMED in August 2004. The program is divided in two phases, each comprising two years of study. To progress to the latter stage a student must pass all first-phase modules and electives, a second-year clinical competency examination, and Step 1 of the USMLE administered by the National Board of Medical Examiners (“NBME”). Dean completed the required coursework and second year clinical competency exam by the spring of 2006.

The Academic Status Policies (“ASP”) issued by UBMED permits a student three opportunities to pass the Step 1 exam, with all attempts to be completed in one academic year exclusive of official (non-study) leaves of absence. A student who thrice fails the Step 1 exam is to be administratively dismissed, but may appeal to the dean of UBMED. Under this policy Dean was required to complete Step 1 of the USMLE by May 31, 2007.

UBMED allowed Dean study leave before his first and second attempts at the Step 1 exam. In June 2006, Dean took a six-week leave to prepare for the examination but failed it in mid-August 2006. Dean thereafter received three additional six-week study leaves. Although the ASP provides only eight weeks for a student to prepare for a second sitting of the Step 1 exam, UBMED granted Dean's requests. Prior to his second attempt, senior associate dean Dr. Nancy Nielsen wrote to Dean on January 4, 2007, informing him that by the terms of his leave of absence he would be “automatically dismissed from medical school” if he failed to sit for Step 1 by February 17, 2007, and that no extensions for further study would be granted. App'x at 177. Dean replied by email to Dr. Nielsen explaining that he had enrolled in the PASS Program, a private examination preparation course consisting of lectures and tutoring, to prepare for the USMLE, which Dean understood he could sit for as late as May 31, 2007. Dean noted that prior to attending the program he was “ridden with depression, stress, and anxiety,” App'x at 231, asked for an “extra month in the Pass Program to succeed” but did not request medical leave. App'x at 232. Dean ultimately retook Step 1 on February 16, 2007, and again failed.

Dr. Nielsen informed Dean by letter that he would go on study leave at the end of his current medical clerkship to prepare for a final try (no later than May 31, 2007) at the Step 1 exam. The ASP does not prescribe a particular study period for a third attempt but states that the student will be removed from the clerkship roster and “allowed to prepare for, and sit for, the examination one final time. [The student] must sit for the examination by the date established by the Office of Medical Education for the next incoming third year class.” App'x at 142. Former faculty member and chair of surgery Dr. Eddie Hoover attested that “it was longstanding policy that students taking the Step 1 exam, whether on their first, second or third attempt, were afforded a 6 to 8 week period to prepare.” App'x at 339. In particular, he emphasized that “each time a medical student took the Step 1 exam, he or she was allowed and expected to study exclusively for the exam for a 6 to 8 week period leading up to the examination itself.” App'x at 339. In his deposition, Dean similarly testified that all students were afforded a six- to eight-week study leave prior to each attempt.

Sometime after failing the Step 1 exam for a second time Dean became disabled. In April 2007, he began to experience increased symptoms of depression, and on May 4, 2007, Dr. Andrea Greenwood, a psychologist, conducted a crisis evaluation session with Dean through the university's counseling services. Dean reported disrupted sleep and appetite, fatigue, and difficulty concentrating. Dr. Greenwood advised Dean to schedule a comprehensive evaluation. That same day Dean met with Dr. Dwight Lewis, an internist, who proposed that Dean begin pharmacological treatment and provided Dean an “excuse slip” recommending a three-month leave of absence due to situational depression.

Dean presented the slip to UBMED and received responses from Dr. Nielsen, by letter and email, informing him that Dr. Lewis's note provided insufficient information to support an extended leave. Dr. Nielsen advised Dean that the dean of UBMED, Dr. Michael Cain, would not grant any additional extensions and that Dean was to sit for Step 1 by May 31, 2007. After learning that Dean independently inquired of UBMED's leave of absence committee, Dr. Nielsen notified Dean that Dr. Cain had already reviewed his physician's note and declined to grant an extension. In a separate letter Dr. Nielsen stated that Dean would “be immediately administratively dismissed from school” upon receipt of a failing score on the Step 1 exam. App'x at 175.

Dr. Greenwood re-evaluated Dean on May 17, 2007. In a letter to Dr. Nielsen and the leave of absence committee she outlined the symptoms of Dean's depression, noting effects on his ability to concentrate and maintain focus and opining that Dean would likely benefit from treatment.

The following day Dr. Lewis prescribed Dean Lexapro, an anti-depressant medication. As a follow up to the earlier excuse slip, Dr. Lewis also wrote to the committee recommending a medical leave of absence to permit Dean to return to proper functioning such that he would be “capable of the academic performance required to advance in his medical training.” App'x at 300. Neither Dr. Greenwood nor Dr. Lewis suggested a particular period of leave.

Dean wrote separately to the leave-of-absence committee on May 21, 2007, describing his symptoms and requesting a three-month leave to continue the medication regimen, visit the university psychologist, and temporarily return home for family support. He indicated that “[a]t the end of the leave [he would] sit for the retake of step 1 and return back to clinical clerkship.” App'x at 296.

After meeting with Dean, the leave-of-absence committee endorsed a leave of absence until June 30, 2007, a date approximately six weeks after Dean began taking Lexapro. The committee's May 22, 2007 letter to Dr. Nielsen noted that leave should be granted to permit adequate time for the treatment to become effective but that Dean “should not be granted a leave of absence to gain more ‘study time’ ” and counseled that no further leave be granted. App'x at 302. Accepting the committee's recommendation, Dr. Cain informed Dean by letter dated May 25, 2007, of the extended deadline but stated that “[n]o further delays whatsoever w[ould] be granted” and reminded Dean that he was required to pass Step 1 within the three attempts permitted by the ASP before returning to the M.D. program. App'x at 306.

On May 31, 2007, Dean attended a follow-up appointment with university psychiatrist Dr. Calvert Warren, who furnished Dean with a letter indicating that despite mild improvement since beginning treatment on May 18, Dean exhibited symptoms of major depression. Dr. Warren supported a leave of absence to permit Dean's treatment interventions to progress and noted a six-to eight-week timeframe for anti-depressant medications to achieve effectiveness. Dean forwarded Dr. Warren's letter to Dr. Cain and enclosed his own letter dated June 1, 2007, again requesting a three-month leave of absence: “Please reconsider giving me more than one month so that the...