NOT RECOMMENDED FOR PUBLICATION File Name: 20a0420n.06
No. 19-6036
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jul 20, 2020 MICHAEL DEANGELO, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE MIDDLE VANDERBILT UNIVERSITY, ) DISTRICT OF TENNESSEE Defendant-Appellee. ) )
BEFORE: CLAY, ROGERS, and DONALD, Circuit Judges
ROGERS, Circuit Judge. Michael DeAngelo had significant academic difficulties while
he was a Master of Business Administration (MBA) student at Vanderbilt University’s Owen
Graduate School of Management. DeAngelo, who has Autism Spectrum Disorder, received
numerous poor grades at Vanderbilt and exceeded the school’s academic strike limit during his
second year in the MBA program. In lieu of being immediately dismissed from the program,
DeAngelo and Vanderbilt reached an agreement to allow him to withdraw. DeAngelo
subsequently filed suit alleging that the school discriminated against him because of his disability
in violation of the Americans with Disabilities Act (ADA) and the Rehabilitation Act. But he has
failed to present evidence that he would have been able to meet the program’s academic
requirements had he been provided the promised reasonable accommodations.
Michael DeAngelo is a former MBA student at Vanderbilt’s Owen School who has Autism
Spectrum Disorder, which is sometimes referred to as Asperger’s Syndrome. DeAngelo initially No. 19-6036, DeAngelo v. Vanderbilt Univ.
received good grades, but his grades declined from his second semester onwards. DeAngelo
exceeded Vanderbilt’s academic strike limit during his second year in the program and ultimately
chose to withdraw, rather than be dismissed from the school.
Vanderbilt’s MBA program has four modules in each academic year, two modules per
semester. Students receive grades of either Superior Pass (SP), High Pass (HP), Pass (P), Low
Pass (LP), or Fail (F). The school’s academic policy treats LP and F grades as academic strikes.
A student receives one full academic strike if he receives an F in a class and half an academic
strike if he receives an LP in a class. Under the school’s policy, a student who accumulates “3 or
more strikes at any time” or maintains a GPA below 3.0 is dismissed from the program.
DeAngelo enrolled in Vanderbilt’s MBA program in Fall 2014. He received a 3.4 GPA
during his first semester in the MBA program, but accrued 1.5 academic strikes during his second
semester, the Spring 2015 semester. He received an LP in Financial Reporting and an F in
International Financial Markets. DeAngelo’s Financial Reporting professor explained that his LP
grade was based on the fact that he “ha[d] not mastered the course material well,” frequently
missed class, scored the lowest on the mid-term and final exams, and ranked last in the class
overall. DeAngelo’s International Financial Markets professor explained that DeAngelo received
an F because his performance on the course assignments demonstrated that he “ha[d] not mastered
the material in the course” and “rather than contributing to the [class] discussion his comments
were often distracting, of[f] topic, and occasionally rude.” The International Financial Markets
course required an element of group work, but DeAngelo did not work with any group. Instead,
DeAngelo attempted to complete the work by himself. The professor took this into account and
gave DeAngelo a “neutral grade” on the team evaluation portion of the course grade because he
worked alone on class projects. DeAngelo received an average score of 34.5% on his individual
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assignments in the course. The professor further commented that DeAngelo missed class and the
professor questioned whether DeAngelo “ha[d] some type of sickness, perhaps depression,” that
could be interfering with his academic coursework.
DeAngelo’s academic troubles at Vanderbilt’s Owen School continued in the first semester
of his second academic year, the Fall 2015 semester. DeAngelo received an LP in Data
Management and Business Intelligence in Module I of the Fall 2015 semester, which meant that
he received an additional half academic strike under the school’s policy. The professor explained
that DeAngelo had not mastered the course material, did not complete many of the course
assignments, received a grade of 36 out of 100 on the final exam (whereas the class average on the
final exam excluding DeAngelo’s grade was 81 out of 100), and rarely attended class. DeAngelo
had therefore accumulated 2.0 academic strikes at this point in his academic tenure at Vanderbilt.
Further, DeAngelo sent a series of profane and threatening emails to his professor in his
Controversies and Debates in Business class in September 2015, during Module I of the Fall 2015
semester. DeAngelo stated in part that he “could kick the living crap out of this bastard [Professor]
Barry.” He included the school’s Dean, Eric Johnson, and Assistant Dean, Kelly Christie, on these
emails.
Subsequently, Vanderbilt’s Equal Opportunity, Affirmative Action, and Disability
Services reached out to DeAngelo to offer assistance in the event that DeAngelo felt “that [he had]
a medical condition or medical conditions that r[o]se to the level of disabilities” and felt that he
needed reasonable accommodations. DeAngelo responded “[n]ot that it is any of your business, I
am autistic,” but did not request any accommodations. He also stated, “I don’t appreciate violent
people accusing me of things and treating me like dirt.” Vanderbilt’s Disability Services Director
then reached out to DeAngelo again, but he did not respond. The school ultimately suspended
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DeAngelo for the remainder of the Fall 2015 semester because of his profane and threatening
emails, and referred him to a psychologist.
The psychologist, Dr. David Sacks, diagnosed DeAngelo in November 2015 with Autism
Spectrum Disorder, “requiring support for deficits in social communication . . . without
accompanying intellectual or language impairment.” The psychologist commented that DeAngelo
appeared to be “highly intelligent and to possess a great degree of confidence in his abilities, which
lie in concrete domains such as quantitative analysis and making predictions based on known
data.” In addition, the psychologist advised that “Michael would likely benefit from added support
to gain explicit understanding of implicit or nuanced behavioral and social expectations, possibly
through the provision of a peer coach or mentor.” Partly in response to this diagnosis, Vanderbilt
lifted DeAngelo’s suspension and allowed him to return to the school in Module III during the
Spring 2016 semester.
DeAngelo, his parents, and Vanderbilt discussed potential services to assist DeAngelo in
his transition back to the MBA program. Vanderbilt suggested and agreed that Assistant Dean
Kelly Christie “would be available to counsel DeAngelo” and that Dean Christie “would make
sure that DeAngelo’s professors were aware of DeAngelo’s disability and educated about how to
properly accommodate his disability.”
Upon returning to Vanderbilt’s Owen School, DeAngelo received another 1.5 academic
strikes in Module III in the Spring 2016 semester. He received an F in Negotiation and an LP in
Applied Investment Management. His Negotiation professor explained that DeAngelo did not
properly complete two of the key assignments, accounting for 40% of his grade. Specifically,
DeAngelo did not complete a “takeaway sheet,” which accounted for 10% of his grade, and did
not comply with the directions for the final paper, which accounted for 30% of his grade. The
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final paper assignment tasked students “with carrying out a real world negotiation and analyzing
the negotiation and [themselves] as a negotiator,” but DeAngelo turned in “a paper summarizing
characters from a video game” in lieu of the assigned project. DeAngelo’s Negotiation professor
also commented that DeAngelo’s other written assignments were minimally completed, but stated
that she gave him “more leeway on those.” Further, DeAngelo’s Applied Investment Management
professor explained why he gave DeAngelo an LP in the course:
In 38 years of teaching, I cannot recall a student like this. The first indication that something was amiss was when no group wanted Michael to be part of their team when the teams self-selected at the beginning of the mod. I cajoled a particularly good team into inviting him to join, and they graciously took him on. It is my understanding that he participated in team meetings but contributed little or no work to the team’s work product. Scored 30 points on the final (second lowest in class). Average was 75, and median was 79.
Accordingly, DeAngelo had accumulated 3.5 academic strikes by the end of Module III in the
Spring 2016 semester, exceeding the limit under Vanderbilt’s policy. DeAngelo therefore faced
dismissal based on his academic record.
Under Vanderbilt’s academic policy, once a student meets or exceeds the academic strike
limit, the student is notified and informed that he can appeal his dismissal to the Student
Achievement Committee (SAC). If a student does not appeal, or if the appeal is unsuccessful, then
the student is withdrawn from the school. Dean Christie notified DeAngelo on March 24, 2016,
that he had exceeded the academic strike limit and informed him that the school would need to
take action in accordance with its academic policy. Dean Christie reached out to DeAngelo again
on April 6, 2016, about the fact that he had exceeded the academic strike limit and offered to meet
with him and Dean Johnson to assist him with crafting an appeal statement. But DeAngelo never
took her up on this offer. Instead, he asked if the notice was “an attempt to scare [him],” explained
that he was appealing his grades, and informed Dean Christie that she would be contacted by his
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lawyer. Several weeks later, on April 19, Vanderbilt sent another letter to DeAngelo explaining
that he had exceeded the strike limit and that the SAC had recommended that he be dismissed from
the MBA program.1 The letter informed DeAngelo that he could submit a written appeal within
seven days.
DeAngelo and his parents also met with Dean Christie and Dean Johnson on April 19.
DeAngelo requested that he be allowed to withdraw from Vanderbilt’s Owen School at the end of
Module IV after his last exam in the Spring 2016 semester, rather than be dismissed immediately.
Vanderbilt agreed to this request and this agreement was confirmed in writing.
Subsequently, DeAngelo brought this suit against Vanderbilt, alleging that the school
violated the ADA and the Rehabilitation Act. DeAngelo alleges that his grades were the result of
Vanderbilt’s unlawful disability discrimination and its failure to provide him with reasonable
accommodations. DeAngelo contends that his Autism Spectrum Disorder interfered with his
ability to collaborate with other students and to communicate appropriately with his professors.
DeAngelo asserts that Vanderbilt failed to notify and educate his professors about his disability,
which led some professors to view his behavior in a negative manner and to give him poor grades
as a result of their bias against him. In addition, DeAngelo claims that he was unfairly subjected
to disparate treatment in Vanderbilt’s enforcement of its academic strike policy.
After filing suit, DeAngelo discovered several emails in which Vanderbilt’s faculty made
derogatory or inappropriate statements about him. Professor Timothy Vogus, who did not give
DeAngelo any LP or F grades, sent three disparaging emails. Professor Vogus referred to
DeAngelo as a “huge show off” and claimed “his showing off always serves to illustrate how
1 Vanderbilt differed slightly from its normal process in handling DeAngelo’s case. Typically, the SAC does not meet until the student files an appeal. But Vanderbilt notified the SAC earlier in this situation because “there was a concern for the student’s well-being and, in particular, a concern how the student would react to being told that they are being withdrawn from the program.” The school therefore wanted to confirm that the SAC would “uphold the policy.”
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incredibly vacuous he actually is,” called DeAngelo a “complete and total asshole,” and stated
“there is nothing worth taking seriously about this guy except that he needs help and has no
business getting a degree from us.” Also, Professor Robert Whaley, who gave DeAngelo an LP
in Applied Investment Management in Module III in the Spring 2016 semester, wrote that “this
guy never should have been admitted” and that “[i]t doesn’t appear that he is going away anytime
soon.” Professor Whaley’s email that DeAngelo should not have been admitted to Vanderbilt was
apparently sent in January 2016, which is several months before Professor Whaley issued his final
grade of LP for DeAngelo in Applied Investment Management.2 Professor Whaley’s other email,
saying that it did not appear that DeAngelo was going away anytime soon, was apparently written
after DeAngelo had exceeded the academic strike limit and had agreed to withdraw from the MBA
program. Finally, Professor Jessica Kennedy, who gave DeAngelo an F in Negotiation in Module
III in the Spring 2016 semester, emailed her colleague that “Michael’s rants and this Trump thing
have me acknowledging that a lot of Republicans really are Neanderthals.” Professor Kennedy’s
email was apparently written after DeAngelo had submitted his coursework in her Negotiation
course. DeAngelo claims that these statements demonstrate that his professors had an animus
against him and were biased in giving him low grades.
Vanderbilt filed a motion to dismiss DeAngelo’s complaint for failure to state a claim.
Vanderbilt argued in its motion to dismiss that DeAngelo’s complaint sought to challenge
Vanderbilt’s academic judgments and did not contain factual allegations that he was dismissed
from the MBA program in violation of the ADA or Rehabilitation Act. To establish that an
individual was dismissed from an academic program in violation of the ADA or Rehabilitation
2 The actual emails are not in the record. DeAngelo has only made selective references to their contents and has not included any dates along with these emails. Vanderbilt asserts that this email from Professor Whaley is the only email that was sent prior to a professor’s assigning a grade to DeAngelo. DeAngelo does not dispute this assertion.
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Act, a plaintiff must show: “(1) [he] is handicapped or disabled as defined in each statute, (2) [he]
is ‘otherwise qualified’ to continue in the program, and (3) [he] was dismissed from the program
on the basis of his handicap or disability.” Kaltenberger v. Ohio Coll. Of Podiatric Med., 162 F.3d
432, 435 (6th Cir. 1998). Vanderbilt asserted that DeAngelo’s complaint did not contain factual
allegations that he was “otherwise qualified” to continue in Vanderbilt’s MBA program, failed to
allege that DeAngelo proposed a specific accommodation that would have allowed him to meet
the MBA program’s requirements had it been provided, and failed to allege that DeAngelo was
dismissed from the MBA program on the basis of his disability.
In the parties’ briefing on Vanderbilt’s motion to dismiss, they attached materials that were
not part of the complaint. This led the district court to convert the motion to dismiss to a motion
for summary judgment pursuant to Federal Rule of Civil Procedure 12(d). The district court
provided notice to the parties that it was converting the motion to a summary judgment motion,
and the court discussed “the needs of the parties to adequately respond” during a teleconference.
The court permitted limited discovery so that the parties could present all pertinent material to the
converted motion and allowed supplemental briefing. Discovery had to be completed about six
weeks after this order was issued and the parties’ supplemental briefing was due several months
after this order. The court specifically requested that the parties provide evidence explaining three
“factual disputes” that were outside the scope of the pleadings: (1) the concept and relevance of
modules; (2) DeAngelo’s alleged requests to Vanderbilt for reasonable accommodations; and
(3) documentation relevant to the alleged rushed review of DeAngelo’s grades that led to his
dismissal.
Following supplemental briefing, the district court granted Vanderbilt’s converted
summary judgment motion. The court determined that DeAngelo was not “otherwise qualified”
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to remain in the MBA program, as his requests for accommodations would not have qualified him
to continue in the program. Several of his requests for accommodations were easily dismissed as
irrelevant to his suit, such as his request to potentially transfer institutions. But the court more
extensively analyzed DeAngelo’s allegation that his professors should have been notified of his
disability and educated on how to appropriately accommodate him. The court examined the idea
that his professors could have been informed that they should help DeAngelo find classmates who
would be willing to work with him on group projects. While the record demonstrates that
DeAngelo had difficulty finding teams that would work with him on group projects, the court
concluded that there was not a question of fact regarding whether this specific accommodation
would have made him qualified. Although DeAngelo did not work with a team to complete group
projects in his International Financial Markets course and received an F before the school learned
of his disability, the professor gave DeAngelo a “neutral grade” on the team evaluation portion of
the course grade because he worked alone on class projects. The professor in this course explained
that DeAngelo’s grades on his individual assignments were extremely poor, he did not demonstrate
an understanding of the course material, and he was frequently absent. The court reasoned that
faculty assistance to aid DeAngelo find a team to work with on group projects would therefore not
have made a difference because he did not receive a negative grade on this aspect of the course
and received extremely low marks in the other aspects of the course. Also, DeAngelo’s professor
in his Applied Investment Management course, which DeAngelo took after the school was aware
of his disability, did provide this support and helped DeAngelo join a team to complete group
projects. Yet DeAngelo still received an LP in the course, scoring the second lowest grade on the
final.
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The district court also rejected DeAngelo’s assertion that his F in Negotiation resulted from
a “misunderstanding” about the final paper’s requirements. The court determined that DeAngelo
had not explained how any alleged misunderstanding related to his disability and had not
demonstrated how any of the accommodations that he sought would have prevented his failing
grade in the course. The court deferred to DeAngelo’s professor’s discretion in assessing the
academic performance of students.
Because DeAngelo failed to establish that he was “otherwise qualified,” the district court
also rejected his disparate treatment claim. DeAngelo’s inability to demonstrate that he was
“otherwise qualified” meant that he could not establish a prima facie case of discrimination. Thus,
DeAngelo failed the McDonnell-Douglas burden shifting analysis.
The district court accordingly granted Vanderbilt’s converted summary judgment motion
and dismissed DeAngelo’s ADA and Rehabilitation Act claim. The court also denied DeAngelo’s
motion to review the magistrate judge’s ruling denying his request to file another amended
complaint while the converted summary judgment motion was pending.
DeAngelo now appeals the district court’s decision. First, DeAngelo argues that the court
should have analyzed the question of whether he was “otherwise qualified” under the motion to
dismiss standard, not the summary judgment standard. Second, DeAngelo contends that he has
provided sufficient support to demonstrate that he was “otherwise qualified” to continue in
Vanderbilt’s MBA program. Neither contention warrants reversal.
First, the district court correctly applied the summary judgment standard to the issue of
whether DeAngelo was “otherwise qualified” to continue in Vanderbilt’s MBA program. There
is no genuine issue of material fact that DeAngelo was not “otherwise qualified” to remain in the
program. DeAngelo has not presented evidence that he would have been able to meet the
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program’s academic requirements even if he had been fully provided with the promised reasonable
accommodations.
The district court was correct in analyzing all aspects of Vanderbilt’s converted motion
under the summary judgment standard, including the issue of whether DeAngelo was “otherwise
qualified.” Although the district court specifically identified three issues and requested that the
parties provide evidence regarding these issues in its order converting Vanderbilt’s motion to
dismiss to a motion for summary judgment, the court’s order did not confine its conversion of
Vanderbilt’s motion to only these three issues. Instead, the court converted the entire motion to a
summary judgment motion and permitted the parties to present all material relevant to the issue of
whether DeAngelo was “otherwise qualified.”
The district court converted Vanderbilt’s motion to dismiss to a summary judgment motion
pursuant to Federal Rule of Civil Procedure 12(d), not Rule 56(f)(3) as DeAngelo now argues.
Rule 12(d) requires that district courts treat motions to dismiss as motions for summary judgment
under Rule 56 if matters outside the pleadings are presented as part of the original motion and are
not excluded by the district court. Fed. R. Civ. P. 12(d). Rule 56(f)(3), on the other hand, allows
a court to consider summary judgment on its own after identifying material facts that may not be
genuinely in dispute, subject to prior notice and a reasonable time for the parties to respond. Fed.
R. Civ. P. 56(f)(3). But the court did not identify “material facts that may not be genuinely
disputed” in its conversion order as occurs under Rule 56(f)(3). Id. Rather, the district court
identified three “factual disputes” that were presented at oral argument and in the parties’ briefing
but that were outside the scope of the pleadings. The court’s process was consistent with Rule
12(d), just as the court stated in the conversion order.
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In converting Vanderbilt’s motion to dismiss to a summary judgment motion pursuant to
Rule 12(d), the district court was required to give the parties “a reasonable opportunity to present
all the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d). The court recognized and
adhered to this requirement. The conversion order states that “the [c]ourt is permitting discovery,
so [the] parties may present ‘all the material that is pertinent’ to the converted motion.” The order
goes on to request specifically that the parties present additional evidence regarding three specific
topics: (1) explaining the module system, (2) showing DeAngelo’s alleged requests to Vanderbilt
for reasonable accommodations, and (3) documenting Vanderbilt’s alleged rushed review of
DeAngelo’s grades. Both parties read this language in the court’s conversion order as limited to
only these three issues.
Even accepting such a limited reading of the district court’s conversion order, DeAngelo
was not prevented from engaging in discovery on the cause of his academic strikes. DeAngelo
contends that he was not properly notified that the court would be considering evidence on the
cause of his academic strikes and asserts that the court should have only considered that issue
based on the allegations contained in his amended complaint. DeAngelo states that had the
converted motion included the issue of the cause of his academic issues, he would have “(1) sought
clarification of relevant professors’ grading systems, (2) challenged professors’ self-serving
explanations of low grades, (3) sought expert review of DeAngelo’s exams and work product, and
(4) sought expert opinion concerning the efficacy of the proposed accommodations.” But the
second issue identified by the district court, which focused on DeAngelo’s alleged requests to
Vanderbilt for reasonable accommodations, was relevant to the issue of whether DeAngelo was
“otherwise qualified” and therefore was relevant to the cause of his academic issues. Evidence
regarding what accommodations DeAngelo requested and whether Vanderbilt provided these
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accommodations provided the district court with insight about whether DeAngelo’s disability
contributed to his academic issues and whether he was “otherwise qualified” to remain in the
program. So while the district court did not explicitly identify the issue of the cause of DeAngelo’s
academic issues, the court did identify a related issue that was aimed at getting to the heart of
whether DeAngelo was “otherwise qualified” to remain in the MBA program, which was a central
component of Vanderbilt’s motion. Accordingly, DeAngelo was not precluded from engaging in
additional discovery regarding this issue.
Further, the district court explicitly permitted DeAngelo to ask for additional discovery in
litigating the converted motion. In the court’s case management order following the conversion
order, the court informed DeAngelo that he could “[s]ubmit to the Court a motion seeking
permission to take additional discovery if Plaintiff believes that the information obtained is
inadequate to allow Plaintiff a reasonable opportunity to present all material that is pertinent to the
pending motion.” But DeAngelo never asked for additional discovery regarding the cause of his
academic strikes even though this was relevant to the issue of whether DeAngelo was “otherwise
qualified” and whether he could meet Vanderbilt’s academic requirements with reasonable
accommodations—critical aspects of Vanderbilt’s motion.
Also, DeAngelo engaged in discovery related to the cause of his academic strikes.
DeAngelo was the one who submitted the professors’ explanations of his LP and F grades.
Although he now contends that this evidence was included for a purpose other than to show the
cause of his academic strikes, we cannot fault the district court for using this evidence in its
assessment of why DeAngelo received his academic strikes. Indeed, these academic reports are
direct evidence of why DeAngelo received academic strikes in these classes. In addition,
DeAngelo obtained disparaging emails from Vanderbilt’s faculty about him during discovery.
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DeAngelo included statements from these emails in his supplemental brief after Vanderbilt’s
motion had been converted to a motion for summary judgment. Accordingly, DeAngelo was able
to present this evidence to the district court in support of his argument that his professors were
biased against him, and at no point did he request additional discovery on the matter despite the
opportunity to do so.
Thus, DeAngelo had adequate notice that the court would be considering evidence—
including the evidence that he presented—regarding the cause of his academic strikes and whether
he was “otherwise qualified,” and he was not precluded from engaging in discovery on these
topics. Given that the court’s conversion order applied to all matters raised in Vanderbilt’s Rule
12(b)(6) motion, the district court properly assessed whether DeAngelo was “otherwise qualified”
under the summary judgment standard.
The court properly concluded that DeAngelo was not “otherwise qualified” to continue in
Vanderbilt’s MBA program, as DeAngelo did not present evidence to raise a genuine issue of
material fact that he would have been able to meet the program’s academic requirements had he
been provided the promised reasonable accommodations.
To establish that an individual was dismissed from an academic program in violation of
the ADA or Rehabilitation Act, a plaintiff must show: “(1) [he] is handicapped or disabled as
defined in each statute, (2) [he] is ‘otherwise qualified’ to continue in the program, and (3) [he]
was dismissed from the program on the basis of his handicap or disability.” Kaltenberger,
162 F.3d at 435; see also Jakubowski v. Christ Hosp., Inc., 627 F.3d 195, 201 (6th Cir. 2010).
Vanderbilt concedes for the purposes of this motion that DeAngelo can establish that he was
disabled, so the parties dispute only the second and third factors in this analysis. This appeal
focuses specifically on whether DeAngelo can establish that he was “otherwise qualified.”
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An individual with a disability is “otherwise qualified” to remain in an academic program “if [he]
can meet its necessary requirements with reasonable accommodations.” Kaltenberger, 162 F.3d
at 435.
DeAngelo cannot establish that he would have been able to meet Vanderbilt’s academic
standards had Vanderbilt provided the promised reasonable accommodations. DeAngelo had
accumulated 2.0 academic strikes before Vanderbilt learned of his disability in November 2015.
Vanderbilt was not required to provide any accommodation to DeAngelo under the ADA or
Rehabilitation Act until it received notice that he had Autism Spectrum Disorder. See id. at 437;
see also Carten v. Kent State Univ., 78 F. App’x 499, 500–01 (6th Cir. 2003). We therefore focus
on the reasonable accommodations that were requested and promised as well as DeAngelo’s grades
from this point forward. At this stage, DeAngelo focuses on two reasonable accommodations that
Vanderbilt promised to provide: (1) that Dean Christie would be available to counsel DeAngelo
and (2) that Vanderbilt would notify its faculty of DeAngelo’s disability and educate them on how
to accommodate his disability.3 Although Vanderbilt contends that these proposed
accommodations were not sufficiently specific and direct, we will assume without deciding that
they were sufficiently specific and direct because there is no genuine issue of fact that either of
these accommodations would have made a difference in DeAngelo’s inability to meet Vanderbilt’s
academic requirements.
First, Dean Christie offered to provide DeAngelo with assistance and did not have any
involvement in grading his coursework. DeAngelo points to several emails from Dean Christie
3 DeAngelo also now states that Vanderbilt promised an accommodation that “[i]f students were reluctant to perform group work with DeAngelo, faculty would intervene to facilitate DeAngelo’s participation in a group.” This accommodation was a component of the promised accommodation that Vanderbilt would notify its faculty of DeAngelo’s disability and educate them on how to accommodate his disability, not a separate promised accommodation. We therefore discuss Vanderbilt’s facilitation of finding groups for DeAngelo to work with when discussing that accommodation.
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that contain statements indicating that she found DeAngelo to be rude, disruptive, and disrespectful
and asks the court to infer from these statements that Dean Christie sought to undermine DeAngelo,
rather than to help him. But DeAngelo does not provide any actual evidence that she sought to
undermine him, and he does not provide any evidence that she refused to assist him. Instead, the
evidence shows that Dean Christie reached out to him on several occasions to offer assistance.
Dean Christie recommended in January 2016 that DeAngelo reconsider his plan to remain in his
Negotiation course, a course DeAngelo ended up receiving an F in, because it was collaborative
and required working with classmates, which was not DeAngelo’s strength. But DeAngelo
ignored Dean Christie’s caution, responding that he was “a great negotiator.” In early 2016, Dean
Christie provided DeAngelo with detailed requirements for gaining approval to potentially
complete his graduation requirements at another school in response to DeAngelo’s request for
information regarding this possibility. Also, in February 2016, Dean Christie offered to meet with
DeAngelo to develop a plan for DeAngelo to complete his degree in response to an email in which
DeAngelo alleged that he detected “fraud and bias” and disparagingly called a professor “a felon.”
Finally, Dean Christie provided DeAngelo with several notices that he could appeal his dismissal
for exceeding the academic strike limit and offered to assist him in drafting his appeal. But again,
DeAngelo did not take Dean Christie up on this offer. This evidence demonstrates that Dean
Christie did offer to provide DeAngelo with assistance and attempted to aid him in fulfilling his
degree requirements.
Perhaps more importantly, Dean Christie had no role in grading DeAngelo, so she could
not have caused DeAngelo to receive any academic strikes. Dean Johnson explained to DeAngelo
that “faculty hold the authority on grading,” and Dean Christie was never DeAngelo’s professor.
Further, the professors who drafted academic difficulty reports to explain their LP or F grades for
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DeAngelo never mentioned that Dean Christie had any influence over the grades they gave.
Therefore, Dean Christie could not have caused DeAngelo to exceed the academic strike limit, and
her actions did not relate to DeAngelo’s ability to meet Vanderbilt’s academic requirements.
Second, assuming Vanderbilt did not fully fulfill its promised accommodation of notifying
its faculty of DeAngelo’s disability and educating them on how to accommodate his disability, this
accommodation would not have enabled DeAngelo to meet Vanderbilt’s academic requirements.
As discussed, DeAngelo had accumulated 2.0 academic strikes before Vanderbilt became aware
of his disability and agreed to this accommodation. The accommodation only applied
prospectively to the Spring 2016 semester. In Module III of the Spring 2016 semester, DeAngelo
received an F in Negotiation and an LP in Applied Investment Management, resulting in another
1.5 academic strikes and putting him above the academic strike limit. There is no question of fact
regarding whether this accommodation would have prevented him from receiving these additional
academic strikes.
In DeAngelo’s Applied Investment Management course, the professor helped DeAngelo
find a team to work with on group projects when he was not able to join a team himself, yet
DeAngelo still received an LP in the course. DeAngelo received the second lowest score on the
final in this class, scoring 30 points, which was well below the class average of 75 and class median
of 79. This demonstrates that DeAngelo was unable to succeed in this course even when the school
provided him with his desired accommodation of helping him to find classmates who he could
work with on group projects.
In DeAngelo’s Negotiation course, his F had no relation to Vanderbilt’s failure to notify
his professor about his disability or failure to educate his professor on how to accommodate his
disability. Instead, DeAngelo received an F because he did not properly complete two assignments
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accounting for 40% of his grade in the course, including turning in a final paper about characters
in a video game rather than completing the actual assigned project. DeAngelo also minimally
completed his other assignments in the course. DeAngelo has not presented any evidence or
explanation for how Vanderbilt’s provision of this accommodation would have assisted him in
completing these assignments. Instead, DeAngelo contends that he received a failing grade due to
an alleged “misunderstanding” about the final project’s requirements and claims that he was not
permitted to resubmit his final project because a “misunderstanding” precluded him from
discovering before it was too late that he allegedly could have resubmitted the paper. DeAngelo
asserts that if the professor had been educated on his disability, then these alleged
misunderstandings would not have occurred so he would not have failed the course. But there is
no evidence showing that these alleged misunderstandings were related in any way to DeAngelo’s
disability. According to the psychologist who examined DeAngelo, his disability had no
“accompanying intellectual or language impairment.” Therefore, there is no evidence that
indicates that DeAngelo had issues understanding or adhering to directions on assignments.
Accordingly, there is no evidence to suggest that notifying DeAngelo’s Negotiation professor
about his disability and educating her on how to accommodate DeAngelo’s disability would have
prevented these alleged misunderstandings. DeAngelo’s grade in this course did not relate to
Vanderbilt’s failure to provide this accommodation—it resulted from DeAngelo’s own academic
failure.
DeAngelo’s assertion that this accommodation would have prevented his F in his
International Financial Markets course in the Spring 2015 semester also fails to present a genuine
issue of material fact. DeAngelo contends that he would have passed the course if he had been
included on a team to work with for group projects, instead of attempting to do this work by
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himself. Accordingly, DeAngelo argues that Vanderbilt’s failure to accommodate him by
notifying and educating its faculty so that faculty could intervene if students refused to work with
him resulted in his F in this course. But DeAngelo took this class in the Spring 2015 semester,
well before Vanderbilt was aware of his disability and agreed to provide this accommodation.
There is no evidence that DeAngelo sought any accommodation that would have retroactively
erased this F or provided special leniency for the academic strike earned as a result of this F. 4 A
request for such retroactive accommodation likely would not have even been reasonable. See
Carlson v. Carrol Univ., No. 09-C-551, 2011 WL 5921445, at *13 (E.D. Wis. Nov. 28, 2011); cf.
DeWitt v. Sw. Bell Tel. Co., 845 F.3d 1299, 1316 (10th Cir. 2017). Further, DeAngelo’s argument
ignores that his professor in this course gave him a “neutral grade” on the team project because he
worked alone, so this aspect of his course grade did not negatively impact his overall grade in the
course. DeAngelo received an F primarily because his performance on the course assignments
demonstrated that he “ha[d] not mastered the material in the course.”
Finally, DeAngelo has not established a genuine issue of material fact that his academic
difficulties resulted from his professors’ bias against him based on his deficits in social
communication that stem from his disability, rather than his poor academic performance.
DeAngelo claims that the emails in which some Vanderbilt faculty members made derogatory or
4 Under Vanderbilt’s academic policy, students are permitted to retake courses in which they received an F and upon successful completion of the course, the strike associated with the initial failure of the course is removed from the student’s strike total. DeAngelo was therefore allowed to retake the class and he was in fact enrolled in this course in Module IV of the Spring 2016 semester. By retaking the course and passing it, DeAngelo would have been able to remove the academic strike that he received as a result of getting an F in the course the first time. However, DeAngelo exceeded the academic strike limit during Module III of the Spring 2016 semester and under Vanderbilt’s academic policy, a student is dismissed from the program once they accumulate 3 or more academic strikes. Therefore, DeAngelo did not have an opportunity to remove his academic strike caused by his F in his International Financial Markets course before the school’s academic policy called for him to be dismissed from the MBA program. Although Vanderbilt’s policy called for students to be withdrawn from all incomplete classes once they reached the strike limit, DeAngelo and Vanderbilt reached an agreement in which he was allowed to withdraw from the school after completing Module IV of the Spring 2016 semester. Accordingly, DeAngelo was permitted to complete his second attempt at taking International Financial Markets and this time he passed the course. But this came too late.
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inappropriate statements about him demonstrate that these professors were biased against him in
their grading. However, as discussed above, only three of these emails were sent by professors
who gave DeAngelo an F or LP resulting in academic strikes. Of these emails, only one, which
was from DeAngelo’s Applied Investment Management professor, was sent before the professor
issued DeAngelo his final grade. This email stated that DeAngelo should not have been admitted
to Vanderbilt. While these emails are regrettable, they do not indicate that the professors were
inclined to grade DeAngelo more harshly based on his behavioral difficulties. The emails do not
touch on grading at all. On the other hand, the record contains these professors’ detailed and
contemporaneous academic justifications for giving DeAngelo low grades that earned him
academic strikes. Academic judgments, such as grading, are afforded deference, as faculties are
afforded great discretion in assessing students’ academic performance. Regents of Univ. of Mich.
v. Ewing, 474 U.S. 214, 225 & n.11 (1985). These emails do not indicate that DeAngelo’s
professors engaged in “a substantial departure from accepted academic norms as to demonstrate
that [his professors] did not actually exercise professional judgment.” Id. at 225. Further, even if
the email sent by DeAngelo’s Applied Investment Management professor prior to the professor
giving DeAngelo his final grade of an LP in the course could give an inference that this professor
was biased and did not exercise professional judgment, DeAngelo still would have had 3.0
academic strikes. DeAngelo therefore still would have been in violation of Vanderbilt’s academic
policy. Thus, given the detailed academic justifications for these grades in the record and the
deference afforded to these judgments, the emails do not create a genuine issue of material fact
that DeAngelo’s professors gave him low grades resulting in his exceeding the academic strike
limit because of their alleged bias against him.
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Accordingly, DeAngelo has not raised a genuine issue of material fact that he was
“otherwise qualified” to continue in Vanderbilt’s MBA program. The evidence demonstrates that
DeAngelo was unable to meet the program’s academic requirements and that the promised
reasonable accommodations would not have enabled him to meet these requirements even had they
been fully provided.
For the reasons stated above, we affirm the judgment of the district court.
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