Xiao v. Rodriguez

• Decision Date: 06 May 2019
• Docket Number: A18-0646
• Parties: Jun Xiao, Appellant, v. Dr. Raquel Rodriguez, individually and in her official capacity, et al., Respondents.
• Court: Minnesota Court of Appeals

Jun Xiao, Appellant,
v.
Dr. Raquel Rodriguez, individually and in her official capacity, et al., Respondents.

A18-0646

STATE OF MINNESOTA IN COURT OF APPEALS

May 6, 2019

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).

Affirmed
Florey, Judge

Hennepin County District Court
File No. 27-CV-16-12740

Zorislav R. Leyderman, The Law Office of Zorislav R. Leyderman, Minneapolis, Minnesota (for appellant)

Douglas R. Peterson, General Counsel, Dan Herber, Senior Associate General Counsel, Brian J. Slovut, Deputy General Counsel, University of Minnesota, Minneapolis, Minnesota (for respondents)

Considered and decided by Bjorkman, Presiding Judge; Connolly, Judge; and Florey, Judge.

UNPUBLISHED OPINION

FLOREY, Judge

Appellant Dr. Jun Xiao appeals the dismissal of his contractual and constitutional claims against respondents Dr. Raquel Rodriguez, Dr. Todd Johnson, and Vice President Brooks Jackson. He argues that, because the district court had subject-matter jurisdiction

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over the matter, his complaint included claims upon which relief could be granted, and respondents were not entitled to qualified immunity, the district court erred by dismissing his claims. We affirm.

FACTS

Appellant Dr. Jun Xiao is a graduate of the University of Minnesota ("UMN") College of Pharmacy ("the program"). He enrolled in the program in 2009, was dismissed in 2013, and eventually completed the program at a later date. Appellant is a Chinese immigrant. He speaks with an accent, but passed the UMN's English-proficiency exam. He has a disability that impacts his mood, energy, and ability to interact with others.

Appellant's initial complaint stems from academic difficulties he experienced beginning in September of 2012, which led to his dismissal from the program. The following are the facts as alleged by appellant in his complaint, and recited, as alleged facts, by the district court.

Facts as alleged

Appellant earned a 3.1 grade-point average in the first three years of the program. In his final year, appellant was required to take eight courses, which were comprised of rotations, lasting five weeks or 200 hours, at different pharmacies and supervised by pharmacists or "preceptors."

Appellant alleges several wrongdoings by the program's faculty members. He claims that, at some point during his fourth year, he requested a course syllabus from Dr. Rodriguez. She did not provide him with one, or, when she did, she provided the syllabus for a different course. Further, during his rotations, appellant claims his preceptor,

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Dr. Johnson, as well as two other preceptors, treated him in a disparate fashion because of his disabilities, national origin, and race.

Appellant alleges that, in August 2012, he asked Dr. Rodriguez and another professor to move him from the Medication History (PHAR 7126) class into the Leadership Administration class, because that class did not involve patient interaction. Appellant states that, despite his request, he was enrolled in the 7126 course anyway.

Appellant also alleges that, in August of 2012, one of his preceptors gave him a "C" grade at his midterm evaluation for 7126 without first consulting with his supervising pharmacist. As a result, appellant asked the supervising pharmacist to give him "good feedback." This led, at least in part, to his ejection from the course for attempting to interfere with the supervising pharmacist's evaluation of appellant's work. Appellant claims he was never instructed how to interact as a pharmacist, so he should not have been punished for not having the skills that were to be acquired from taking the class. Appellant alleges other wrongdoings with regard to this course, including being placed at a hospital where he had already worked, which, therefore, did not provide him with a "diverse mixture of sites" for his rotations and that the course was an elective that UMN faculty treated as required, contrary to school policy.

Appellant claims that, on September 12, 2012, Dr. Rodriguez informed him that a patient had complained about him based on his "national dialect." Appellant alleges that he was immediately removed from his Infusion (PHAR 7211) course and prohibited from completing it. At the time he was removed from the course, he had worked at the rotation location for about three-and-a-half days. Shortly after appellant's removal, he requested

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details regarding the patient's complaint. Appellant was told that he was removed from the course due to the affiliated pharmacy's concern that he had compromised patient safety, and that his removal was allowed under the affiliation agreement between the pharmacy and UMN. Appellant requested a copy of the affiliation agreement, but never received one.

Appellant claims that he requested further information regarding his ejection from the two courses, but did not receive these documents until more than a year after he requested them. Appellant asserts that this delay violated UMN policy and did not afford him due process. Further, appellant states that he paid over $17,700 for three courses at the hospital pharmacy to which he was assigned and never received a refund for the 7126 course from which he was ejected or from the two courses he was allegedly prevented from taking. In total, appellant claims he had paid UMN more than $163,000 for program-related tuition and expenses at the time of his dismissal from the program.

Appellant also alleges that he was removed from 7126 and 7211 without notice and given two "F" grades instead of "Incomplete" or "Withdrawn" grades. He claims this allowed UMN to keep his tuition instead of reimbursing him or reapplying the fees to other courses. Appellant states that UMN placed him on academic probation after he received the two failing grades. He insists that, because it was a violation of UMN policies to fail him, it was also a violation to place him on probation.

Appellant claims that respondents' actions violated his Fourteenth Amendment right to equal protection. Specifically, he alleges that non-disabled, American-born, non-minority students were given one to two extra weeks to complete their rotations, were given syllabi when requested, were allowed to access patients' medical records, were allowed to

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treat the "Fagron Compounding" course as a 7211 course, and were allowed to graduate without taking a "patient care" elective. Appellant alleges that he was denied these opportunities.

Appellant alleges that, in December 2012, Dr. Rodriguez and appellant came to a written agreement regarding the "time and manner" in which he would complete courses qualifying as 7211 and 7126 and receive grades of "incomplete." In January 2013, the Academic Standing Committee ("ASC") informed appellant that, once he successfully completed the two courses, he would be removed from academic probation. Likewise, appellant alleges that Dr. Rodriguez told appellant that he would be "automatically" removed from academic probation once he passed 7126, which was scheduled to end on March 29, 2013. Appellant states that in February 2013, he received a grade of "A" in his 7211 course. However, he alleges the course was registered as 7213 in his enrollment, while it was registered as 7211 for other students. According to appellant, this was because all electives are the same. Appellant successfully passed 7126 on March 29, 2013.

In April 2013, appellant began Acute Care I (PHAR 7122) with Dr. Johnson as the preceptor. Appellant alleges that, on April 25, 2013, Dr. Johnson, in the presence of another student, held up appellant's marked exam, called him "one of the worst students he has had in 35 or 36 years of teaching," and accused appellant of unprofessional behavior. Additionally, Dr. Johnson, in front of others, allegedly accused appellant of cheating, forced appellant to acknowledge the accusation, and threatened to send appellant to a separate "small room." Appellant alleges that Dr. Johnson's behavior violated UMN's policy to "be respectful, fair, and civil" and also discriminated against him because of his

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disability. Appellant reported Dr. Johnson directly to UMN, rather than reporting the incident to Dr. Johnson's supervisor, Dr. Rodriquez. Appellant claims that his decision to bypass Dr. Rodriguez resulted in her initiating numerous retaliations against him.

Soon after these events, Dr. Johnson gave appellant a "D" for PHAR 7122. Appellant requested to be moved from Dr. Johnson's rotation. Dr. Rodriguez denied appellant's request and told him that if he did not remain with Dr. Johnson, appellant would need to go before the ASC and that Dr. Rodriguez would propose appellant's dismissal from the program. The next week, Dr. Johnson allegedly sent appellant two text messages instructing appellant to move out of his apartment and contacted appellant's landlord to discuss the same topic. He then allegedly went to appellant's apartment, confronted appellant in a parking lot, and ordered him to move out.

Appellant alleges that Dr. Rodriquez made false statements that adversely affected his enrollment in the program. He claims that, in May 2013, Dr. Rodriguez falsely informed UMN that appellant had "never repeated 7211" because "the three elective courses are treated substantially different." He alleges that Dr. Rodriquez's statement caused him to be kept on probation past March 29, 2013. In June 2013, appellant was allowed to briefly address the ASC regarding his potential dismissal from the program. At the hearing, and outside the presence of appellant, Dr. Rodriguez allegedly proposed that appellant be dismissed from the program. Consequently, according to appellant, he was dismissed from the program in June 2013.

On July 22, 2013, appellant filed his first internal complaint with UMN. Appellant alleged respondents violated university rules, policies, and established practices by

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removing him from 7211 and 7126, issuing...