Redding v. Nova Se. Univ., Inc.

• Decision Date: 25 February 2015
• Docket Number: CASE NO.: 14-60545-CIV-MARRA/MATTHEWMAN
• Citation: 165 F.Supp.3d 1274
• Parties: Meredith Redding, Plaintiff, v. Nova Southeastern University, Inc., College of Osteopathic Medicine, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

165 F.Supp.3d 1274

Meredith Redding, Plaintiff,

v.Nova Southeastern University, Inc., College of Osteopathic Medicine, et al., Defendants.

CASE NO.: 14-60545-CIV-MARRA/MATTHEWMAN

United States District Court, S.D. Florida.

Signed February 25, 2015

Entered February 26, 2016

Shawn Logan Birken, Law Offices of Shawn L. Birken, Fort Lauderdale, FL, for Plaintiff.

Richard Arthur Beauchamp, Panza Maurer & Maynard, Fort Lauderdale, FL, Joyce Ackerbaum Cox, Salomon Laguerre, Baker Hostetler LLP, Orlando, FL, for Defendants.

OPINION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

KENNETH A. MARRA

, United States District Judge

This matter is before the Court on Defendant Nova Southeastern University, Inc. College of Osteopathic Medicine's (“Nova”) Motion for Summary Judgment (DE 68), which is ripe for review. For the following reasons, the Court partially grants Nova's motion and also orders Plaintiff's counsel to show cause regarding a potential violation of Federal Rule of Civil Procedure 11(b)

.

I. Facts¹

Meredith Redding sues Nova for alleged violations of Title III of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12182 (2012)²

and Section 504(a) of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) (2012). Redding claims that Nova violated these statutes by failing to provide her with reasonable accommodations during her enrollment in Nova's osteopathic medicine program and by ultimately dismissing her from the program.

A. 2009-2010 Academic Year

Redding, a former student in Nova's osteopathic medicine program, suffers from Crohn's disease

. (DE 68-1 ¶¶ 2–3.) Her condition requires frequent hospitalizations and medical treatment. (Id. at ¶ 3.) During the first semester of her second year at Nova, Redding was hospitalized multiple times due to her Crohn's disease or side effects from her medication.³ (DE 99 ¶ 99.) These hospitalizations caused her to miss many exams. (DE 70-2 at 56:2–59:10, 81:22–82:25.)

Under Nova's exam policy, a make-up exam may be in short-answer, essay, or multiple-choice format at the instructor's discretion, and a failure to attend a make-up exam results in receiving a zero for that exam. (DE 68-10 at 18; DE 68-11 at 5.)⁴ There are no excused absences for a make-up exam, even if missed due to illness or hospitalization.⁵ (DE 73-1, Ex. G at 38:2–17, 122:6–123:20.) The student handbook states that make-up exams are required to be given within ten business days after the original exam, but it also states that “[m]ake-up examinations for exams missed due to acute student illness... may be given at the discretion of the course director at any time during the academic year.” (DE 68-10 at 18; DE 68-11 at 5) (emphasis added).

After taking her first make-up exam during the 2009-2010 academic year, Redding realized the make-up exams were more difficult than the original exams. (DE 70-2 at 57:11–59:10, 62:12–63:10.) In particular, the make-up exams were given in essay or short answer format while the original exams were given in multiple-choice format. All of Redding's make-up exams were in a different format than the original exam. (Id. at 63:22–64:1.) Also, because a semester was composed of successive “blocks” of courses and the make-up exams were scheduled after a new block of courses had already started, Redding became mired in a cycle of falling behind in her new courses while studying for make-up exams and then taking additional make-up exams in the new courses. (Id. at 81:22–82:25.) She would then be hospitalized and miss additional exams, perpetuating the cycle. (Id. at 81:22–82:25.) While Redding missed some exams due to her Crohn's flare ups and hospitalizations, she also chose to miss others and opt for the make-up exam because she was unprepared due to studying for another make-up exam. (Id. at 81:22–82:25, 84:1–85:25.) Ultimately, the majority of Redding's exams this semester were make-up exams. (Id. at 81:22–82:25, 83:21–25.)

The student handbook states that to initiate a request for academic accommodations a student should contact the “disability service representative” for the student's particular school. (DE 68-8 at 42.) To obtain the name and contact information of the student's disability service representative, the student should contact the university's ADA coordinator. (Id. ) When Redding called the ADA coordinator to tell her about the impact of her Crohn's disease

on her ability to take exams and to ask about what accommodations were possible, the ADA coordinator told Redding that she could not help her and directed her back to the medical school. (DE 70-2 at 69:24–71:5.) It appears the ADA coordinator did not tell Redding the name and contact information of the disability service representative for osteopathic medicine students.

Throughout this semester, Redding also repeatedly sought help from Dean of Students Dr. Albert Whitehead regarding her hospitalizations, the make-up exams, and her growing concerns about failing the make-up exams. (Id. at 56:10–57:16, 61:9–15, 65:1–10, 62:9–63:17, 69:24–70:7, 72:10–14, 79:2–9.) At several of these meetings, Redding specifically requested to take her make-up exams in the same format as the original exam and to reschedule some of her make-up exams at the end of the semester to prevent the “cascading effect” of make-up exams causing her to fall behind, leading to additional make-up exams. (Id. at 64:14–22, 86:1–18.) At each meeting, Dr. Whitehead told Redding that he could not help her and that she would have to take the make-up exams.⁶ (Id. at 56:10–57:10, 64:10–13, 72:10–73:7.) Under Nova's policies, if a student seeks accommodations from a faculty member or administrator, the faculty member or administrator should refer the student to the Office of Student Disability Services, which handles requests for disability accommodations. (DE 73-1, Ex. G at 10:10–25; DE 79-1, Ex. AA at 23:12–21.) Dr. Whitehead never mentioned Nova's disability accommodation policy to Redding.⁷ (DE 70-2 at 65:11–14.)

On one occasion this semester, Nova permitted Redding to reschedule a make-up exam. After Dr. Whitehead refused Redding's request to postpone a make-up exam because she had just recently been discharged from the hospital, Redding met with Vice-Dean Dr. Lawrence Jacobson. (Id. at 68:19–69:11, 73:8–74:6.) After telling Dr. Jacobson of her hospitalization and Dr. Whitehead's refusal to let her take the make-up exam at a later date, Dr. Jacobson said that it was “ludicrous” for Redding to be forced to take the scheduled make-up exam and that he would check if Redding could take the exam at a later date. (Id. at 74:7–18.) Later, Dr. Jacobson informed Redding that Dr. Anthony Silvagni, Dean of the College of Osteopathic Medicine, would allow her to take the exam at a later date. (Id. at 74:7–23; DE 68-18 at 4.)

According to Redding, on the night before one of her make-up exams, the course director called Redding and told her that Nova's make-up exams are purposefully more difficult and “are made to fail.” (DE 70-2 at 57:11–59:10, 60:1–6.) Redding claims that the course director told her 11 of the 14 topics that would be tested and said, “This is the only way you will pass this test. Please don't speak to the [College of Osteopathic Medicine] about it.” (Id. at 57:11–59:10.) Redding then wrote down the topics and they “match[ed] exactly to the test questions.” (Id. at 59:19–25.) Redding received an 89 percent on this make-up final, which was the only make-up exam in the College of Osteopathic Medicine that Redding ever passed. (Id. at 60:7–12.)

At the end of her fall semester, Dr. Whitehead told Redding that she had failed so many make-up exams that she was in danger of failing out of school and that she needed to withdraw from the semester to avoid the risk of failing her remaining exams and failing out of school. (Id. at 80:10–13, 81:1–7, 87:21–88:14.) Dr. Whitehead offered Redding a decelerated course load for the next semester, meaning she could register for half of the courses, audit the remaining courses for non-credit, and later retake her first semester courses and the audited second semester courses for credit. (DE 68-18 at 3.) Redding agreed to withdraw from the semester and take a decelerated course load the next semester. (DE 70-2 at 88:15–89:17.) Redding did not need to take any make-up exams during the next semester and finished that semester with a B plus average. (Id. at 91:7–12.)

B. 2010-2011 Academic Year

Redding began her re-attempt at her second academic year in August or September 2010. (DE 37 ¶¶ 19–20; DE 39 ¶¶ 19–20; DE 70-2 at 91:4–12.) Again, Redding began missing classes, exams, and make-up exams due to flare-ups and other complications caused by her Crohn's disease

. (DE 70-2 at 92:7–18, 93:19–95:5–17.) Redding was also hospitalized for several days. (Id. at 92:16–93:13.)

By this semester, Dr. Whitehead had been replaced by Dr. Hilda De Gaetano. (Id. at 110:22–111:12). Redding had several meetings and telephone conversations with Dr. De Gaetano. (Id. at 111:3–12, 112:25–113:15.) Redding told Dr. De Gaetano that she was failing and needed help, but Dr. De Gaetano told Redding that she did not have the power to help her. (Id. at 112:25– 113:15.) According to Redding, Dr. De Gaetano also told Redding that the make-up exams were in a different format as a punishment and a deterrent. (Id. at 96:13–18, 99:20–100:2.)

In December 2010, Redding missed her Gastrointestinal and Respiratory make-up exams due to her illness. (DE 37 ¶ 24; DE 39 ¶ 24; DE 70-2 at 103:21–104:15.) Redding failed her Respiratory course for missing the make-up exam. (DE 37 ¶ 26; DE 39 ¶ 26; DE 70-2 at 103:5–104:15.) Dean Silvagni did, however, permit Redding to reschedule her Gastrointestinal make-up exam and take it in its original multiple-choice format. (DE 70-2 at 103:13–105:6.)

During the next semester, in February 2011, Redding was hospitalized for 12 days. (Id. at 107:2–9.) Because of this hospitalization, Redding was going to miss several finals and...