Murphy v . Franklin Pierce CV-93-65-B 11/17/94 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Nancy D. Murphy
v. Civil N o . C-93-65-B Franklin Pierce Law Center
MEMORANDUM AND ORDER
Nancy Murphy suffers from a chronic vision impairment known
as diplopia.1 After being dismissed as a Franklin Pierce Law
School student, she sued the Law Center alleging that she was the
victim of unlawful discrimination on the basis of her disability
and sex in violation of § 504 of the Rehabilitation Act of 1973,
29 U.S.C.A. § 794 (West Supp. 1994), Title IX of the Education Amendments of 1972, 20 U.S.C.A. § § 1681 and 1682 (West 1990),
and the Fourteenth Amendment's Equal Protection Clause. She also
alleged that the Law Center's discharge procedures violated her
rights under the Fourteenth Amendment's Due Process Clause and
state contract law. The matter is before me on the parties'
cross-motions for summary judgment.
1 Diplopia is caused by congenital weakness of the muscles controlling convergent focus of the eyes. According to the plaintiff, this condition severely hinders her ability to focus on printed material. I. FACTS
A. Franklin Pierce Law Center
Franklin Pierce Law Center is a private, nonprofit
corporation that receives some federal financial assistance. The
Law Center does not offer a part-time program and, with limited
exceptions, it requires students to complete their degree
requirements within three years.
Franklin Pierce publishes rules that limn its academic
requirements and procedures for disciplinary action. The rules
require that students must maintain a grade point average ("GPA")
of 2.00 or higher, earn at least eighty-four credits, with no
more than nine of those credits falling below a grade of C-, and
satisfy any terms of academic probation. If a student fails to
meet these minimum standards, he or she is subject to the oversight of the school's Academic Standards Committee. Students
within the Committee's jurisdiction may be placed on probation,
suspended, or dismissed. Probationary students must submit a
plan to the Committee explaining their poor performance and
offering recommendations for corrective action. The Committee
may accept, modify or reject a student's plan when setting
probation terms. It may also subject probationary students to
revised eligibility requirements.
2 B. Murphy's First Year: Fall 1987 - Spring 1988
Murphy disclosed her visual impairment in her admission
application. She described her condition as double vision that
first manifested itself when she was a teenager. She claimed
that the condition worsened significantly after she was involved
in an automobile accident during her second year of college.
After undergoing two surgical procedures and "ocular motility
therapy," however, she claimed that she no longer needed
eyeglasses and concluded that "I continue today to read well
without impairment." Murphy thus presented her condition as a
hurdle that she had overcome rather than an impairment that would
require accommodation upon admission.
Franklin Pierce admitted Murphy for the Fall 1987 term. She
took the same fifteen-credit course load as the other first year students, but was placed on probation after her second semester
because her cumulative GPA was below 2.00. In accordance with
the Law Center's rules, Murphy submitted a corrective action plan
to the Academic Standards Committee. She did not allege that her
low GPA had been caused by her visual impairment. Instead, she
attributed her performance to poor test taking skills, panic when
taking exams, "culture shock," and a thyroid condition.
3 The Committee responded by accepting Murphy's proposed class
schedule for the fall term. In light of her self-described
"panic," however, the Committee required her to take practice
exams throughout the semester. It also informed her that she
must earn no grade less than C-, achieve at least a 2.00 GPA for
the fall semester, and raise her cumulative GPA to 2.00 by the
end of her second year. Finally, in commenting upon her thyroid
condition, the Committee informed her that "[f]or our part, while
sympathetic to the health problems you have, and willing to
consider accommodations before health problems impact on
performance, we do not see them as a basis for lessening of
standards and will not be able to waive these terms of probation
should you come to us after the fact with the explanation that
you could have done better except for ill health."
C. Murphy's Second Year: Fall 1988 - Spring 1989 Murphy successfully completed her probationary requirements
for the Fall 1988 semester, receiving a GPA of 2.08. However,
the Academic Standards Committee required her to submit another
corrective action plan at the end of her second year because she
received a D in Evidence and thereby violated the Law Center's
rule prohibiting students from having more than nine credits
below C-.
4 Murphy alleged for the first time in her second corrective
action plan that her academic difficulties were due in part to
her visual impairment. She also described her condition in
detail and delineated her method of managing the condition
through muscle therapy, diet, rest, reading time management, and
the occasional use of prism lenses. She further stated that her
doctor recommended "being awake for three hours in the morning
before reading, and sleeping when I have difficulty converging or
when I experience muscle strain."2 Because Murphy claimed that
her impairment caused her to experience pain and headaches, she
requested three-day rest periods between exams to allow her time
to rest and manage her reading schedule without strain. She also
stated "[a]lthough I have not previously brought this to the
attention of the Academic Standards Committee, I did write
briefly about the condition in my personal statement. I also spoke about it with Professor Arpiar Saunders during my admission
interview."
2 In an August 1 1 , 1989 letter, Murphy's doctor informed her: "I would suggest that you avoid situations that are particularly stressful to your eyes, such as taking several examinations in rapid succession. As a matter of fact, it would be advisable that you break up your study and reading into well defined segments of time such as two hours at a time, or three hours at the most, and I hope that you will be able to avoid the development of headaches and assorted problems."
5 The Committee accepted Murphy's explanation for her poor
performance and allowed her to return for a fifth semester.
However, it again placed her on probation. This time, the
Committee required her to achieve a GPA of 2.30 or higher for
each semester of her third year, receive no D's or F's, and no
more than one C- in either semester, and submit a proposed course
schedule for the Committee's approval. The Committee also
informed her that "if these conditions are not met, we will not
entertain any new plans for rehabilitation, i.e., you will be
dismissed if these terms are not met."
Murphy chose not to appeal the Committee's decision and
instead began negotiations with the Committee concerning her fall
courses. The Committee rejected her request to participate in a
five credit clinical program with the public defender's office
and informed her that she would need to achieve a 2.67 GPA if she elected to participate in the Law Center's Civil Practice Clinic.
After being informed that the Dean had agreed to allow her to
take a reduced course load, the Committee accepted her proposal
to take courses in Criminal Law, Commercial Paper, Real Estate
Transactions, and Estate Planning. The Commercial Paper course
was a "mini course" with the final exam scheduled several weeks
prior to the regular final exam period. She was to be graded on
6 a single exam in only one of the other three courses. In the
other two courses, class participation or papers were to be a
significant part of her final grade.
D. Murphy's Fall 1989 Semester
Murphy earned a 1.89 GPA for the fall term. She received
failing grades in both Commercial Paper and Real Estate
Transactions, a C in Criminal Law, and an A- in Estate Planning.
She was granted extra time to complete her Criminal Law and Real
Estate Transactions exams. Although she did not receive extra
time for her Commercial Paper exam, she was allowed to retake the
exam with extra time. On her second try, she received a D.
Murphy was dismissed as a student on February 8 , 1990,
because the Law Center claimed that she had failed to meet the
terms of her probation and otherwise failed to successfully
complete the requirements for the degree program. Murphy timely appealed her dismissal and, for the first time, asked that the
Law Center accommodate her disability by allowing her to take
oral exams. E. Murphy's Appeal to the Faculty Board and her Department of Education Complaint
In denying Murphy's appeal, the Faculty Board concluded that
7 Murphy had been dismissed because she lacked the analytical
skills to succeed rather than because she was disabled. In this regard, the Faculty Board noted:
There is a clear pattern in M s . Murphy's transcript as a whole. The only two courses in which she got A- are taught and evaluated in a special way. In one, the examination is open book and take-home. In the other there are class presentations of projects. In both, the work is done in teams, the benefits of mutual instruction and learned cooperation being considered (in those courses) sufficient to outweigh the conceded risk of high grades for one or more team members who assent to the answers without understanding or is coached through a presentation. Further, evaluation is based on what might be called the mastery method which anticipates most students will ultimately be correct on nearly every point and therefore nearly every conscientious group earns an A of some sort.
The only B's in the transcript are in practicum-type courses largely if not solely evaluated on the basis of a series of exercises or clinical work.
Every D, F, or C- on the transcript is in a traditional, conceptual subject with a final exam. M s . Murphy's higher grades in the basics are straight C's in Torts, Constitutional Law, Business Associations, Criminal Procedure and Criminal Law. Two D's and two C-'s were earned in basic courses in the first year -- before M s . Murphy says her vision became a problem.
The Faculty Board also analyzed Murphy's exam answers and
concluded that the kinds of errors she repeatedly made in her
exams were "not errors of reading, nor the kind that more time on
an exam would cure." Accordingly, the Faculty Board determined
8 that Murphy's failure to succeed was unrelated to her disability. Murphy filed a complaint with the United States Department
of Education, Office of Civil Rights ("OCR") on August 7 , 1990.
In response, OCR determined that Franklin Pierce had not violated § 504 of the Rehabilitation Act or its accompanying regulations,
34 C.F.R. § 104 (1992).
I I . DISCUSSION
A. The Summary Judgment Standard
It is axiomatic that a court does not find facts in ruling
on a motion for summary judgment. Instead, the court construes
the evidence in the light most favorable to the non-movant and
determines whether the moving party is entitled to judgment as a
matter of law. Olivier v . Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). Less well understood is the effect that
burdens of proof frequently have on the resolution of summary
judgment motions.
If the party moving for summary judgment has the burden of
proof at trial, the court will grant the motion only i f : (1) the
moving party initially produces enough supportive evidence to
entitle the movant to judgment as a matter of law (i.e., no
9 reasonable jury could find otherwise even when construing the
evidence in the light most favorable to the non-movant), and (2)
the non-movant fails to produce sufficient responsive evidence to
raise a genuine dispute as to any material fact. Fitzpatrick v .
Atlanta, 2 F.3d 1112, 1115-17 (11th Cir. 1993). In contrast, if
the non-movant bears the burden of proof, the court will grant
the motion i f : (1) the movant alleges that the non-movant lacks
sufficient proof to support one or more elements of her case, and
(2) the non-movant is unable to produce sufficient responsive
evidence to withstand a motion for judgment as a matter of law.
Id.; see also, Mesnick v . General Elec. Co., 950 F.2d 816, 822
(1st Cir. 1991), cert. denied, 112 S . C t . 2965 (1992). Thus, the
amount and quality of the responsive evidence that the non-movant
must produce to successfully resist a motion for summary judgment
will depend upon whether the non-movant bears the burden of proof at trial. Fitzpatrick, 2 F.3d at 1115-17.
With these standards in mind, I turn to the merits of the
cross motions for summary judgment.
10 B. The Rehabilitation Act Claim
A § 504 claimant must allege that she is (1) an "individual
with a disability,"3 (2) who is "otherwise qualified," and (3)
who was denied participation in a program or activity receiving
federal funds, (4) "solely because of her disability." Cook v .
Rhode Island Dept. of Mental Health, Retardation & Hosp., 10 F.3d
1 7 , 22 (1st Cir. 1993). In this circuit, the plaintiff bears the
burden of proving all four elements of her § 504 claim. Id. But
see Taub v . Frank, 957 F.2d 8 , 10 (1st Cir. 1992) (noting that
"the plaintiff bears the initial burden of establishing that he
is entitled to protection under the A c t " ) . Compare Teahan v .
Metro-North Commuter R.R., 951 F.2d 5 1 1 , 514 (2d Cir. 1991)
(burden of proof remains with plaintiff but burden of production
shifts to defendant once plaintiff establishes prima facie case), cert. denied, 113 S . C t . 54 (1992), with Wood v . Omaha Sch.
Dist., 985 F.2d 4 3 7 , 438 (8th Cir. 1993) (burden of proof shifts
3 The Act was amended in 1992 to substitute "disability" for "handicap." Pub. L . 102-569, § 102(p)(32). The Act's definition of "individual with a disability" includes "any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such impairment, or (iii) is regarded as having such an impairment." 29 U.S.C.A. § 706(8) (West Supp. 1994). The parties do not dispute that Murphy is disabled within the meaning of the statute.
11 to defendant once plaintiff establishes prima facie case) and
Fitzpatrick, 2 F.3d at 1127 n.17 (same) and Smith v . Barton, 914
F.2d 1330, 1339 (9th Cir. 1990) (same), cert. denied, 501 U.S.
1217 (1991), and Arneson v . Heckler, 879 F.2d 393, 396 (8th Cir.
1989) (same on remand, 53 Fair Empl. Prac. Cas. (BNA) 963 (E.D.
M o . 1990), modified and rev'd on other grounds sub nom., Arneson
v . Sullivan, 946 F.2d 90 (8th Cir. 1991)) and Treadwell v .
Alexander, 707 F.2d 473, 475 (11th Cir. 1983) (same) and Pushkin
v . Regents of Univ. of Colo., 658 F.2d 1372, 1387 (10th Cir.
1981) (same).
Franklin Pierce argues that it is entitled to summary
judgment because Murphy cannot prove either that she was
dismissed solely because of her disability or that she was
otherwise qualified to complete her Law Center studies. I
address each argument in turn. 1. Solely by reason of disability
Section 504 protects only those persons who are subjected to
discrimination under federally funded programs solely because of
their disabilities. 29 U.S.C.A. § 794(a). Thus, if a disabled
person is denied participation in a program because she is unable
to meet a facially neutral program requirement, she will not be
entitled to relief under § 504 unless she can establish either
12 that the requirement was merely a pretext for unlawful
discrimination, Heilweil v . Mount Siani Hosp., 32 F.3d 7 1 8 , 722
(2d Cir. 1994), or that she was unable to meet the requirement
because of her disability, Teahan, 951 F.2d at 516.
Murphy concedes that Franklin Pierce dismissed her because
she failed to meet both the Law Center's minimum grade
requirements and the terms of her probation. Moreover, she does
not contend that the Law Center established either its minimum
requirements or her probation terms as a pretext for unlawful
discrimination. Instead, she argues that she has a § 504 claim
because her disability prevented her from meeting the
requirements and probation terms. Ordinarily, a claim such as
this raises a question of fact that cannot be resolved by a
motion for summary judgment. Id. at 517. But see McGregor v .
L.A. Univ., 3 F.3d 8 5 0 , 860 (5th Cir. 1993) (court affirmed grant of defendant's motion for summary judgment), cert. denied, 114 S .
C t . 1103 (1994). A plaintiff, however, cannot survive a motion
for summary judgment challenging the sufficiency of a claim on
which she bears the burden of proof at trial without offering any
supporting evidence. Wynne v . Tufts Univ. Sch. of Medicine, 976
F.2d 7 9 1 , 796 (1st Cir. 1992) (plaintiff may not rest upon
13 conclusory allegations when pretext is at issue), cert. denied,
113 S . C t . 1845 (1993); see also, Fitzpatrick, 2 F.3d at 1115-17.
Here, Murphy has not produced any evidence to counter the Law
Center's substantial evidence suggesting that her failure to
succeed was caused by her deficient analytical skills rather than
her disability. Since Murphy must prove at trial that she was
dismissed solely because of her disability, her failure to
produce any responsive evidence on the issue dooms her § 504
claim.
2. Otherwise qualified
Murphy's § 504 claim also fails because she has not produced
sufficient evidence in response to the Law Center's motion to
convince a reasonable jury that she is otherwise qualified. In
making this determination, the court may not focus solely on
whether the plaintiff can meet the program's minimum requirements in spite of her disability. Alexander v . Choate, 469 U.S. 2 8 7 ,
301 (1985). Instead, it must determine whether the plaintiff's
disability can be reasonably accommodated through changes in the
program's requirements that do not alter its essential nature or
unduly burden the program's sponsor. School Bd. v . Arline, 480
U.S. 273, 287 n.17 (1986). I f , however, the plaintiff cannot
14 succeed in spite of her disability, even with all reasonable
accommodations, she is not entitled to relief under § 504. See
id.
Murphy claims that she is otherwise qualified because she
could meet the Law Center's minimum requirements if the school
allowed her to take oral exams. She has offered no evidence,
however, to support this contention. First, the undisputed
evidence establishes that she failed to achieve passing grades
even after she received all of the accommodations suggested by
her physician. See McGregor, 3 F.3d at 856, 860 (plaintiff who
received similar accommodations and still failed was not
otherwise qualified). Second, the only evidence in the record
suggesting that she has the analytical skills to be a successful
law student is the Law Center's decision to admit her in spite of
her disability. However, not every student admitted to Law Center is qualified to receive a degree. See id. at 854-55.
Thus, this evidence, standing alone, is not sufficient to
convince a reasonable jury that Murphy could succeed if she were
allowed to take oral exams. Since Murphy has produced no other
evidence to support her claim, I also grant Franklin Pierce's
motion for summary judgment on this basis.
15 C . Education Amendments Claim
Murphy contends that Franklin Pierce violated Title IX 4 ,
because the Law Center denied her an accommodation for her
disability that it had approved for an unidentified male student
with a similar disability. Franklin Pierce challenges this claim
by arguing that Murphy lacks any supporting evidence.
As with other statutes prohibiting discrimination on the
basis of sex, the plaintiff bears the burden of proving her Title
IX claims. Lipsett v . University of P.R., 864 F.2d 8 8 1 , 896-97
(1st Cir. 1988) (applying disparate treatment standards under
Title VII to Title IX claims). Here, Murphy has offered no
evidence to support her claims that the unnamed male student
received preferential treatment. Nor does she offer any evidence
suggesting that the male student's disability was enough like hers to entitle her to a similar accommodation. Since Murphy has
not requested additional time to respond to the Law Center's
motion pursuant to Fed. R. Civ. P. 56(f), she cannot avoid
4 Title IX states in pertinent part: "No person in the United States shall, on the basis of sex, be excluded from participation i n , or be denied the benefits o f , or be subjected to discrimination under any education program or activity receiving Federal financial assistance...." The parties do not dispute that Franklin Pierce qualifies as an institution which receives federal financial assistance. 20 U.S.C.A. § 1681 (West 1990).
16 summary judgment on this grossly inadequate claim simply by
asking for an opportunity to prove the claim at trial. Garside
v . Osco Drug, Inc., 895 F.2d 4 1 , 49 (1st Cir. 1990); see also,
Patterson-Leitch C o . v . Mass. Mun. Wholesale Elec. Co., 840 F.2d
985, 988 (1st Cir. 1988).
D. Fourteenth Amendment Claims
Murphy claims that the Law Center violated her Fourteenth
Amendment rights to equal protection and due process. Although
Franklin Pierce has moved for summary judgment on these claims,
Murphy's objection and supporting memorandum make no mention of
her constitutional claims. By failing to address the Law
Center's challenges to those claims in her responsive memorandum,
Murphy has waived her right to object to the claims' dismissal.
Reed Paper C o . v . Proctor & Gamble Distributing Co., 807 F. Supp.
840, 850 (D. M e . 1992); see also, Collins v . Marina-Martinez, 894 F.2d 4 7 4 , 481 n.9 (1st Cir. 1990).
E. State Law Claims
Having dismissed Murphy's federal claims, I decline to
exercise my discretion to retain jurisdiction over state law
claims. See 28 U.S.C.A. § 1367(c)(3) (West 1993). Accordingly,
I dismiss these claims without prejudice.
17 CONCLUSION
Franklin Pierce's motion for summary judgment (document n o .
10) is granted with respect to counts I , I I , and III of
plaintiff's complaint, and plaintiff's cross-motion for summary
judgment (document n o . 13) is denied. Plaintiff's state law
claims are dismissed without prejudice.
SO ORDERED.
Paul Barbadoro United States District Judge
November 1 7 , 1994
cc: Russell F. Hilliard, Esq. Dennis Murakami, Esq. Gary B . Richardson, Esq.