Newell v. Cent. Mich. Univ. Bd. of Trs.

Decision Date10 August 2020
Docket NumberCase No. 19-11988
PartiesSAMANTHA NEWELL, Plaintiff, v. CENTRAL MICHIGAN UNIVERSITY BOARD OF TRUSTEES, Defendant.
CourtU.S. District Court — Eastern District of Michigan

Honorable Thomas L. Ludington

OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Plaintiff, Samantha Newell, is a graduate student at Central Michigan University's ("CMU") Physical Therapy Program. ECF No. 14 at PageID.139. She was accepted into the early decision program and began taking classes in May of 2016. Id. at PageID.139 Plaintiff completed the academic coursework with a 3.67 GPA. Id. at PageID.152. Plaintiff alleges she is on medical leave due to injuries she sustained during the winter/spring semester of 2017. She plans to return to finish her clinical requirements when her injuries are healed. ECF No. 14 at PageID.152-153.

On July 3, 2019, Plaintiff filed a complaint against Defendants alleging CMU violated the ADA and the Rehabilitation Act by failing to grant her reasonable accommodations, committed retaliatory harassment and interference, created a hostile educational environment, and violated the Michigan Persons with Disabilities Civil Rights Act ("PDCRA"). ECF No. 1. She also alleges that Defendant Dr. Silkwood-Sherer violated her constitutional right to bodily integrity. Id. A second amended complaint was filed on October 2, 2019 and Plaintiff dismissed the PDCRA claim. ECF No. 14. On May 18, 2020, Defendant Silkwood-Sherer's motion to dismiss was granted and Count V was dismissed. On May 21, 2020 Defendant CMU filed a motion for summary judgment and the response and reply were subsequently filed. ECF No. 39, 47, 50.

I.
A.

Plaintiff has two conditions that, according to her, reflect the symptoms of hypnotic cerebral palsy and a rare form of Marfan syndrome. ECF No. 14 at PageID.139. The conditions associated with her cerebral palsy are hypermobility/hyperflexibility, joint instability and pain, hypotonia, weakness, anatomical abnormalities, learning and cognitive disabilities, and sensory processing issues. ECF No. 14 at PageID.139. As a result, she has difficulty with her respiratory and musculoskeletal systems, cognitive and sensory functions, and ability to perform vigorous or taxing physical activities and manual tasks. Id. at PageID.139. Plaintiff struggles with her mental processing speed (below the 10th percentile). ECF No. 47-13 at PageID.3673. In a letter to her professors, Plaintiff included a note from her doctor stating "her processing speed issues always keep her 'a beat late' and it is mentally exhausting for her to try to keep up the pace with the professor and her classmates during the discussion time." Id. at PageID.3763. However, Plaintiff has been academically successful and performs at or above satisfactory levels in all her classes. Id. at PageID.3763.

Plaintiff alleges in her amended complaint that before being accepted into the physical therapy program she met with program director Dr. Silkwood-Sherer about her condition and that it was the subject of her application essay. Id. at PageID.140. Silkwood-Sherer believed Plaintiff's disability was mild after meeting with her the first time. ECF No. 45-3 at PageID.2924. Plaintiff claims that because of this meeting and her essay, CMU was aware of her condition and her need for accommodations before she was accepted. ECF No. 14 at PageID.140. However, Plaintiff alleges that CMU never asked her to undergo a physical exam or evaluation. Id. at PageID.140. The physical therapy program's student handbook states:

Students who have a disability that requires accommodations to participate in class activities or meet course requirements should register with the Office of Student Disability Services . . . . The staff of that office will help determine what accommodations need to be made to assist the student. The Office of Student Disability Services will then inform the faculty members of the accommodations needed and assist them in obtaining the needed resources. Id. at PageID.140-141.

Plaintiff's complaint states that she registered with the Office of Student Disability Services (SDS) and provided them with the appropriate documentation before the start of classes in 2016. ECF No. 47 at PageID.3415. Plaintiff was granted accommodations including provisions for time and a half on tests and a private testing room. Id. at PageID.141. Plaintiff was also approved to live in campus housing for students with disabilities. Id. at PageID.141. Plaintiff was given accommodation letters which she was responsible for providing to her professors. ECF No. 39-2 at PageID.1575.

B.

Plaintiff began her program in May 2016. ECF No. 39-6 at PageID.1725. On May 24, 2016, Plaintiff did not provide Dr. Samson with her accommodation letter until the night before the exam. Id. at PageID.1643. This caused Dr. Samson to find a quiet room for her to take the test, at the last minute. Id. at PageID.1725. Plaintiff testified that she forgot about providing the letters to her professors. ECF No. 39-2 at PageID.1645. Plaintiff further testified that, in her opinion, Dr. Samson was not retaliating or creating a hostile education environment by bringing up the incident at a faculty meeting. Id. at PageID.1646.

During the fall 2016 semester Plaintiff had several attendance issues. On October 17, 2016, Plaintiff arrived fifty minutes late to Dr. Andraka's exam. ECF No. 39-6 at PageID.1725. Plaintiff acknowledged that her late arrival reflected poorly on her professionalism. ECF No. 39-2 at PageID.1648. Plaintiff does not believe that Dr. Andraka was retaliating by bringing up the incident in the October faculty meeting. Id. at PageID.1648. In November 2016, Plaintiff forgot toattend a laboratory session with Dr. Andraka. ECF No. 39-6 at PageID.1725. Plaintiff offered no explanation why she forgot to attend class. ECF. No 39-2 at PageID.1651. Plaintiff testified that she did not believe Dr. Andraka retaliated against her by bringing up the incident at the faculty meeting. Id. at PageID.1651.

Also during the fall 2016 semester, Plaintiff took Patient Care Lab I, a required course taught by Dr. Timothy Zipple and Dr. Elaine Betts. ECF No. 14 at PageID.141. As part of the course Plaintiff was required to experience electronic stimulation ("e-stim"). Id. at PageID.141. E-stim is a treatment method that uses a mild electric current to treat muscle spasms, pain, and nerve damage. ECF No. 39-2 at PageID.1577. Plaintiff contends that as a result of e-stim she experienced "headaches, fatigue, confusion, inability to concentrate, insomnia, lack of appetite, memory problems, executive fiction issues, amplified emotions due to her preexisting sensory processing issues related to her disorder." ECF No. 14 at PageID.141.

L'Hommedieu, the director for SDS, set up a meeting between Plaintiff, Silkwood-Sherer, and herself for November 22, 2016 to discuss the practical final exam for Patient Care I. ECF No. 39-2 at PageID.1589, 1595. At that meeting it was decided that during the practical final exam Plaintiff's partner would only set up the machine but not turn it on. Id. at PageID.1595. Plaintiff did not experience further e-stim. Id. at PageID.1606. Plaintiff acknowledges that the events surrounding the application of e-stim are not the basis for her complaint. ECF No. 47 at PageID.3417.

On December 22, 2016, L'Hommedieu sent Plaintiff an email regarding the upcoming spring semester. ECF No. 47-12 at PageID.3668. L'Hommedieu explained

Now that Fall semester is finished I wanted to touch base with you regarding how to work out your accommodations in Spring and forward. I've found that including me in the discussion with your professors and Dr. Silkwood-Sherer really doesn't help. I don't understand enough about the program and they are adept at workingthrough students' issues while maintaining the standards necessary to assure students are able to work effectively post-graduation. I think in the future it will be best for you to go directly to your professors and include Dr. Silkwood-Sherer on e-mails. Including me means they have to teach me what is required to function in the program. So far they have been able to work out what you need and I anticipate that will continue in the future. Id.
C.

On January 5, 2017, Plaintiff and her mother wrote a letter to her professors. She began the letter stating

I suspect many of you have questions about some experiences you've had with me either in lectures or labs over the last semester. I would like to do my best to explain my challenges, communicate my needs, and ask for your help. I worry about being misunderstood or having you come to inaccurate conclusions about me. I really love this program and want to do very well. ECF No. 47-14 at PageID.3673.

Plaintiff explained she recently met with her neuro-psychologist to discuss potential accommodations. Id. Specifically, the letter requests noise cancelling headphones during testing, modified attendance requirements, a note taker, access to the lectures before class, video recordings of the labs, additional time with the professor, more time to formulate answers during group work, and changes to physical treatments and modalities that were harmful to her. ECF No. 47-14 at PageID.3673-3675, ECF No. 39-2 at PageID.1613-1614.

Seventeen physical therapy program professors and staff, including Silkwood-Sherer, Dr. Zipple, and L'Hommedieu, discussed Plaintiff's requests at their staff meeting on January 17, 2017. ECF No. 47-15 at PageID.3676. They denied her request for a modified attendance policy and that she be excused from having physical treatments performed on her in class. Id. at PageID.3676-3677. It is unclear from the record if she was allowed to use noise cancelling headphones. ECF No. 47-16 at PageID.3680. The professors granted some accommodations, denied several of her requests, and discussed ways to make Plaintiff successful without the requests that were denied. Id. at PageID.36...

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