Sjöstrand v. Ohio State University

750 F.3d 596, 2014 WL 1663076

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 28, 2014
• Docket: No. 13-3449
• Status: Published

Opinions

KETHLEDGE, J., delivered the opinion of the court, in which DONALD, J., joined, and DAUGHTREY, J., joined in part. DAUGHTREY, J. (pp. 602-07), delivered a separate opinion concurring in part and dissenting in part.

OPINION

KETHLEDGE, Circuit Judge.

Caitlin Sjostrand graduated magna cum laude from the Ohio State University (Newark campus) in only two and a half years. Then she applied to Ohio State’s Ph.D program in School Psychology, where her grade-point average (3.87) was tied for highest in the applicant pool and her GRE scores (a combined 1110) exceeded the school’s requirements. But Sjostrand also suffers from Crohn’s disease; and according to Sjostrand, her interviews with two of the program’s professors focused more on her ailment than they did on anything else. Eventually, of the seven applicants interviewed by the school, the only applicant rejected was Sjostrand.

Sjostrand thereafter sued OSU under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132 et seq., and the Rehabilitation Act, 29 U.S.C. § 701 et seq., claiming that the school had rejected her application “by reason of’ her disability. OSU moved for summary judgment, which the district court granted on the ground that Sjostrand lacked evidence that would allow a jury to find the school had rejected her because of her Crohn’s. We disagree and reverse.

I.

In connection with her application to OSU’s School Psychology program, Sjostrand was separately interviewed by two professors from the program: Professor Laurice Joseph, the program’s head, and Kisha Radliff, an assistant professor in the program. According to Sjostrand — whose testimony at this stage of the case we take as true — each interviewer spent about half the interview discussing Sjostrand’s Crohn’s disease with her.

Sjostrand thereafter received a letter from an OSU admissions officer, Nance Hoza, informing Sjostrand that her application had been rejected. The letter did not offer any reason for the denial, so Sjostrand called Hoza to ask what the reason was. Hoza said she did not know, and referred Sjostrand to another admissions officer, Tim Graham. Sjostrand called Graham and asked why she had been denied admission. Although Graham likewise lacked personal knowledge about Sjostrand’s application, he pulled her file and said that the only information available was that she did “not fit the program.”

Sjostrand then attempted to call Joseph, leaving her two voicemails. It took Joseph two weeks to call Sjostrand back, and when she did Joseph was vague and evasive. In particular, when Sjostrand asked what she could do to be a better “fit” for the program — which was the reason flagged by Graham for her rejection — Joseph had little or nothing to say.

But six days later, in an email to another professor, Donna Pastore, Joseph recited five putative reasons why the program had rejected Sjostrand. Pastore then prepared a draft letter to Sjostrand that recited three of those reasons as the basis for her rejection. Eventually the reasons were cut to one — that “[t]he committee felt your interests and motivation were a better match for counseling rather than school psychology” — and the letter was sent to Sjostrand.

Sjostrand thereafter sued OSU under Title II of the ADA and the Rehabilitation Act. After discovery, a magistrate judge granted OSU’s motion for summary judgment. This appeal followed.

II.

We review the district court’s grant of summary judgment de novo, viewing the evidence in the light most favorable to Sjostrand. Lexicon, Inc. v. Safeco Ins. Co. of Am., Inc., 436 F.3d 662, 667 (6th Cir.2006). Summary judgment is proper only when the record shows that there is no genuine issue as to any material fact. Id. “An issue of fact is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 451 (6th Cir.2004).

A.

Sjostrand argues that OSU discriminated against her when it denied her application, in violation of Title II of the ADA. Title II provides: “[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. As a state university, OSU is a public entity. See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 589, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999).

In the typical Title II case, the plaintiff alleges she was denied reasonable accommodations in violation of the Act. In this case, however, Sjostrand alleges not that she was denied reasonable accommodations, but that the school discriminated against her—on the basis of her Crohn’s disease—when it rejected her application. Discrimination claims normally arise under Title I of the ADA. See 42 U.S.C. § 12112 (“No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures”). Thus, Sjóstrand’s claim looks more like the typical Title I claim than it does a Title II claim; and perhaps for that reason, the parties assume that the Title I burden-shifting regime for proving discrimination applies here. We make the same assumption for purposes of this appeal.

Under that burden-shifting regime, Sjostrand must first establish a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). If she does, OSU must then offer a legitimate, nondiscriminatory reason for its rejection of her application. Id. If OSU does so—and its burden is merely one of production, not persuasion—Sjostrand must then present evidence allowing a jury to find that the university’s explanation is a pretext for unlawful discrimination. Id. at 804, 93 S.Ct. 1817.

1.

The district court held that Sjostrand failed to present evidence establishing a prima facie case of discrimination. To make out that case, Sjostrand must present evidence showing first, that she is disabled; second, that she was “otherwise qualified” for the program; and third, that OSU rejected her application “by reason of’ her disability. See 42 U.S.C. § 12132; Kaltenberger v. Ohio Coll. of Podiatric Med., 162 F.3d 432, 435 (6th Cir.1998). OSU concedes that Sjostrand has met the first two requirements, but disputes the third.

Sjostrand cites three kinds of evidence as proof that OSU rejected her by reason of her disability. The first concerns her interviews. One can fairly read the testimony of OSU’s own witnesses— Joseph, Radliff, and the only other professor in OSU’s School Psychology program, Antoinette Miranda—to mean that one of the reasons to interview an applicant, if not the most important reason, is to discuss any concerns with the student’s application. Yet according to Sjostrand’s testimony — which of course a jury would be entitled to believe — neither of her interviewers even mentioned any of the putative reasons why her application was rejected, and each interviewer instead devoted about half the interview to a discussion of her Crohn’s disease. The resulting inference is that the interviewers’ real concern — and thus the reason they rejected Sjostrand’s application — was her Crohn’s disease.

Second, a rational juror might find that inference bolstered by Joseph’s behavior after the fact: by her failure to return Sjostrand’s call for two weeks, by Joseph’s vague and evasive answers when she did finally call back, and by Joseph’s production of no less than five putative reasons for Sjostrand’s rejection in an email six days after the call — an email that, given its disparity with Joseph’s notably vague phone conversation with Sjostrand herself, a jaded (but still reasonable) juror might regard as merely papering the file. OSU responds that Joseph was vague on the call with Sjostrand only because Joseph did not have Sjostrand’s file in front of her then; but many jurors might regard that explanation as lame, given that Joseph took two weeks to return the call — meaning she could pick her moment to make it — and that Joseph obviously did have the file when she sent her email to Pastore six days later.

Third, Sjostrand presented undisputed evidence that her grade point average was tied for the highest in the applicant pool; that her GRE scores easily met the program’s minimum requirements; and that, more to the point, the program admitted another applicant whose grade point average was lower than Sjostrand’s, whose GRE score was below the school’s putative minimum, and whose application included numerous rather obvious typographical errors (e.g., “enrollement,” “Specilization,” “community”) — but who did not, unlike Sjostrand, have Crohn’s disease. Sjostrand’s evidence was enough to establish her prima facie case.

2.

OSU contends, and the district court found, that OSU articulated a legitimate, nondiscriminatory reason for the faculty’s decision to reject Sjostrand’s application. OSU’s obligation at this step “is merely a burden of production, not of persuasion, and it does not involve a credibility assessment.” Upshaw v. Ford Motor Co., 576 F.3d 576, 585 (6th Cir.2009).

OSU offered an overarching reason for its rejection of Sjostrand’s application— that she was a better fit for the counseling program — with five more specific reasons in support. Those putative reasons all concerned Sjostrand’s responses on her written application. Specifically, the reasons were that (1) Sjostrand identified as her preferred mentor a professor from the School Counseling program, Darcy Granello, rather than a professor from the School Psychology program, to which she had applied; (2) Sjostrand expressed an interest in counseling adults, whereas the School Psychology program focuses on counseling children; (3) Sjostrand failed to identify anything specific about the program’s mission; (4) Sjostrand had limited experience working with children; and (5) Sjostrand had limited research experience. Professor Joseph, among others, testified about these reasons in her deposition. We agree with the district court that these reasons are sufficient to meet OSU’s burden of production.

That leaves the question whether Sjostrand presented evidence that would allow a jury to find that these reasons— and thus OSU’s overarching reason about Sjostrand’s fit with the program — were pretextual. See Russell v. Univ. of Toledo, 537 F.3d 596, 604 (6th Cir.2008). And on this point we respectfully disagree with the magistrate judge. All of the program’s putative reasons for its rejection of Sjostrand’s application are caught between the pincers of the testimony of OSU’s own witnesses and the testimony of Sjóstrand herself. Specifically, as shown above, everyone in this case — and notably OSU’s own witnesses, including Joseph — agrees that at least one purpose of interviewing an applicant is to discuss the program’s concerns about her application. And yet, on the record as it comes to us here, neither Joseph nor Radliff asked any questions — not a single one — about any of the five putative reasons for Sjostrand’s rejection. That omission is important evidence that these putative reasons were actually pretextual ones, and that the real reason for Sjostrand’s rejection was the one that Joseph and Radliff discussed at length in Sjostrand’s interviews: her Crohn’s disease.

Sjóstrand also presented evidence specific to each of the five reasons. First, it is certainly true, as OSU points out, that Sjóstrand identified Professor Granello as her preferred mentor, and that Granello was a member of the Counseling program. But another applicant — the same one whose GRE scores were much lower than Sjostrand’s, and whose application contained typographical errors — failed to identify a preferred mentor at all, and yet was admitted. So a jury might be skeptical of this reason.

Second, although it is technically true that Sjóstrand expressed an interest in counseling adults, the inference that OSU asks us to draw from that fact — that counseling adults, rather than children, was Sjostrand’s primary area of professional interest — is based upon a tortured reading of her application. Her relevant response states in full: “After graduating with a degree in school psychology, I would like to independently contract with various school districts as an itinerant school psychologist. Additionally, I would like to offer pro bono counseling services to parents who have disabled or troubled children.” An itinerant school psychologist, of course, works with children — specifically, disabled or troubled children — rather than adults. Moreover, Sjóstrand did not say she wanted to counsel adults simpliciter, but rather said she wants to counsel a certain kind of adult — namely, parents of disabled or troubled children. And Sjóstrand said she wants to do this counseling pro bono, which itself shows that it would not be her primary area of practice. Thus, the natural reading of this response — and indeed, many jurors might think, the only fair one — was that Sjostrand’s reference to counseling parents was entirely ancillary to counseling their children.

OSU’s third reason — that Sjóstrand “did not mention anything specific to our mission in particular” — faults Sjóstrand for failing to answer a question that the program’s application never asked. None of the application’s 12 questions ask for commentary about the program’s “mission in particular.” Moreover, to the extent that the school’s mission is to work with troubled or disadvantaged students in urban schools — and Joseph herself stumbled in seeking to define the school’s mission in her deposition — Sjóstrand did discuss those issues in her response. That the application’s instructions told Sjóstrand to respond to the school’s 12 questions in three pages or less might also explain, in some juror’s minds, why she did not say more.

OSU itself characterizes the two remaining reasons — that Sjóstrand had limited experience working with children, and limited research experience — as “minor,” which itself undermines their importance as reasons for her rejection. And Professor Miranda testified, contrary to her employer’s arguments now, that Sjostrand’s experience with children was “promising.”

None of this is to say, of course, that a jury would necessarily find OSU’s reasons for Sjostrand’s rejection to be pretextual. But it is to say that Sjostrand presented evidence sufficient to create a genuine issue as to whether they were. The issue is one for a jury to decide.

B.

Sjostrand also claims that OSU violated the Rehabilitation Act when it rejected her application. The Act provides that “[n]o otherwise qualified individual with a disability ... shall, solely by reason of his or her disability, be ... subjected to diserimination[.]” 29 U.S.C. § 794(a). To prevail, Sjostrand must make the same case as for her ADA claim, except she must show that she was denied admission “solely” because of her disability rather than “by reason of’ it. See Bums v. City of Columbus, Dept, of Public Safety, Div. of Police, 91 F.3d 836, 841 (6th Cir.1996). For the reasons already stated, Sjostrand’s case presents a jury question under either standard.

The district court’s judgment is reversed, and the case remanded for proceedings consistent with this opinion.