Pickett v. Tex. Tech Univ. Health Scis. Ctr.

Decision Date15 June 2022
Docket Number21-11087
Citation37 F.4th 1013
Parties Amy PICKETT, Plaintiff—Appellee, v. TEXAS TECH UNIVERSITY HEALTH SCIENCES CENTER ; Barbara Cherry, individually and in her official capacity as Department Chair of Leadership Studies; Michael Evans, individually and in his official capacity as Dean of School of Nursing, Defendants—Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Amy Pickett, Tuscola, TX, Pro Se.

Cory A. Scanlon, Esq., Allison Marie Collins, Office of the Attorney General for the State of Texas, General Litigation Division, Austin, TX, for Defendants-Appellants.

Before Smith, Wiener, and Southwick, Circuit Judges.

Jerry E. Smith, Circuit Judge:

The defendants dismissed Amy Pickett from two graduate nursing-studies programs. She sued, claiming that her dismissal violated the Americans with Disabilities Act ("ADA"), the Rehabilitation Act, and the Due Process Clause. The district court refused to dismiss some of her claims.

The defendants appeal part of that order, contending that they have sovereign immunity from Pickett's ADA claims and that she failed to state Fourteenth Amendment claims. We dismiss their appeal in part because we lack appellate jurisdiction over the Fourteenth Amendment claims. We affirm the order in part and reverse the order in part because we conclude that Pickett stated some Title II claims but not all of the claims that the district court refused to dismiss. The defendants are not entitled to sovereign immunity at this stage of the litigation because Pickett's allegations do not permit us to assume that the defendants did not violate her due-process rights. And the question whether the Due Process Clause protects any of her interests is not properly before this court.

I.

This appeal follows the district court's partial denial of the defendants' motion to dismiss for want of subject-matter jurisdiction and for failure to state a claim. As we will explain,1 this procedural posture requires us to consider only whether Pickett has plausibly pleaded a claim for which the federal courts have subject-matter jurisdiction. So the following account is drawn from Pickett's complaint.

A.

Pickett was a graduate nursing student at the Texas Tech University Health Sciences Center ("the Center"), which accepted Pickett into its Doctor of Nursing Practice ("DNP") Program in 2016. That program is taught "primarily online" and aims to serve working nurses.

Pickett experienced early success in the DNP Program. A short time later, she decided to enroll in a second post-master's nursing program at the Center—the Family Nurse Practitioner ("FNP") Program. The DNP and FNP Programs are "separate and distinct." They have different admissions processes, requirements, coursework, and timelines.

Pickett has ADHD. She knew that the additional demands of the FNP Program might be overwhelming, given her condition and her existing commitments to her job and the DNP Program. Therefore, when she was accepted into the FNP Program, she decided, for the first time, to seek academic accommodations.

The Center processes requests for academic accommodations via its ADA office. Students must petition the office for accommodations. That office decides whether a petitioning student has a qualifying disability. If he does, the office determines the accommodations to which he is entitled. It notifies the student of its decision by issuing a "Letter of Accommodation" ("LOA"). To receive the accommodation, however, the student must present that letter to his professors and must renew his request for an LOA each semester to continue getting accommodations.

Pickett petitioned the Center's ADA office for accommodations in May 2017. She "noted the impact of [her] ADHD on [her] ability to focus and complete academic tasks under time limited conditions such as testing."

The Center agreed that Pickett had a qualifying disability. It issued her an LOA including three accommodations: (1) extra time to take tests; (2) a private, quieter testing facility; and (3) note-taking assistance, which included copies of professors' lecture notes and presentations.

In the Fall 2017 semester, Pickett presented her LOA to the FNP Program faculty but not the DNP Program faculty. She received all of the accommodations that she requested. She earned a 4.0 GPA.

In the Spring 2018 semester, Pickett renewed her LOA and again presented it only to her FNP Program professors. She did nearly as well, earning an "A" and a "B."

Trouble arose in the Summer 2018 semester. Pickett renewed her LOA again. But this time, she also presented it to her DNP Program professors. She hesitated to do that because she feared "negative reactions" from them. But she felt as though she had no choice because her health had deteriorated.

After Pickett requested accommodations from her DNP Program professors, she noticed "negative reactions and hostility." For instance, Pickett was required to spend a certain number of hours doing clinical work to satisfy a course requirement. Pickett was timely "completing and reporting those hours." But the Center "questioned" her reports.

DNP Program faculty also failed to provide some of the accommodations listed in Pickett's LOA. On "numerous instances," she did not receive "copies of lecture notes" and in-class presentations even though that was required by her LOA and she had "repeatedly requested" them.

Pickett also had difficulty working with her DNP Program advisor. Those advisors typically review student work before it is submitted. When they do so, they create a timeline for each student based on that student's "needs." Pickett's advisor asked to review each assignment one week before Pickett was required to submit it for grading. She explained that the one-week-before-submission deadline did not leave her with enough time to complete the work. She showed her advisor that semester's LOA and said she "required more time due to [her] disability." The advisor nevertheless refused to accommodate her by moving back the deadlines.

After that incident, Pickett began receiving poorer grades in her DNP Program courses. She was "graded more harshly" and "under different standards" from the other students despite having "previously earned As."

Around the same time, Pickett had surgery. That surgery prevented her from working—and the Center was also her employer. The Center approved her for FMLA leave, so its administration knew that she would temporarily be unable to record clinical hours. While she was on leave, the Center accused her of "falsifying" her reports of the clinical hours that she earlier had worked. The Center held a hearing, and there Pickett proved that her reports were accurate. The Center took no action.

Pickett's surgery also prevented her from completing coursework in the Summer 2018 semester. She asked to receive the grade "Incomplete" in one of her DNP Program courses. She attributed the request to her "increasing ADHD and related anxiety." The Center agreed and directed her to submit a paper for that course by September 2018.

Pickett failed to meet that extended deadline by 30 hours. That's because she faced the "additional demands" of her Fall 2018 semester course-work on top of the postponed paper and was experiencing "exacerbated symptoms." The course's syllabus provided that a paper submitted one day late would be penalized by reducing its grade by one letter. Nevertheless, the course's instructor "immediately" assigned the paper zero points. That instructor said the paper was assigned a zero because it was submitted late. So Pickett failed the course.

Pickett appealed that failure. The Center gave her partial relief. It announced that though her paper would be regraded, she could not receive a grade higher than 79 points—a two-letter-grade reduction—because that was the Center's interpretation of the syllabus's policy.

In response, Pickett's professor re-graded the paper. But she again assigned the paper zero points. This time, the professor explained that the paper was worth zero points because Pickett had failed to incorporate feedback from two faculty members who had previously reviewed the paper.

Pickett appealed again. Again, the Center split the baby. It directed a second faculty member to grade the paper. Its policy provided for an unbiased reviewer to blind grade the paper, which was supposed to be followed by a mediator's reconciling of the original grade and the second, blind grade. Instead of a blind grader, the Center directed Pickett's program advisor—the same person who had previously refused Pickett's accommodation request and one of the faculty members whose feedback Pickett had ostensibly failed to incorporate—to grade the paper. That faculty member assigned the paper 59 out of 79 possible points. And instead of mediator-driven reconciliation, the Center just averaged the two marks for a final grade of 29.5 points.

Later, Pickett presented the same paper. Her presentation received a grade of 89. Pickett interpreted that grade to mean that her paper had met "program standards" all along. But the damage was done: She received a "C" in the course. The DNP Program awards no credit for courses in which a student receives a "C."

Meanwhile, Pickett's difficulties continued in the Fall 2018 semester. She renewed her LOA and showed it to her professors for that semester to request the same three accommodations: "extended time, an alternate testing location[,] and note-taking assistance." But her professors did not provide her with lecture notes and presentations, which was required by her LOA as part of the note-taking assistance.

Pickett faced more challenges during the Fall 2018 semester. She detailed those allegations in her complaint, but we do not recount them here because they lack direct relevance to the matters on appeal. What's important is that she claims to have faced unfair obstacles that caused her academic performance to suffer.

That weak performance, coupled with Pickett's perception that the school was not...

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