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granting summary judgment and dismissing Title VI claim because plaintiff's “conclusory allegations are insufficient ... to give rise to an inference of discrimination”
Summary of this case from Manolov v. Borough of Manhattan Cmty. Coll.Opinion
98 Civ. 1429 (THK)
MAY 19, 2000
Nasir A. Babiker, 5700 Reading Avenue, Apt. 170, Alexandria, VA 22311.
Leonard A. Sclafani, Esq., Polatsek Sclafani, 275 Madison Avenue Suite 903, New York, N.Y. 10016.
MEMORANDUM OPINION AND ORDER
Plaintiff Nasir Abdalla Babiker, brings this action against Ross University School of Medicine, alleging discrimination, breach of contract, negligence, and intentional infliction of emotional distress in connection with his termination as a medical student. The parties have consented to trial before me, pursuant to 28 U.S.C. § 636(c).
Defendant has moved for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons that follow, defendant's motion is granted, and the action is dismissed with prejudice.
BACKGROUND
Plaintiff, a native of Sudan, began medical studies at Ross University School of Medicine in Dominica in July 1991. See Affidavit of Dr. Nancy Perri ("Perri Aff."), at ¶ 3. Medical education at Ross University consists of basic medical science studies followed by a clinical curriculum consisting of clinical rotations at various hospitals. See Perri Aff., at ¶¶ 11-12. Plaintiff successfully completed the basic sciences portion of his education on October 30, 1992. See Plaintiff's Affidavit in Opposition to Defendant's Motion for Summary Judgment ("Pl. Aff.") at 4; Complaint, at ¶¶ 14, 19; Defendant's Statement Pursuant to Local Civil Rule 56.1 ("Deft. Rule 56.1 Statement"), at ¶¶ 13-14. On October 30, 1992, plaintiff's medical education was interrupted as a result of his failure to pay $7500 in tuition, and plaintiff resumed his medical studies in the Fall of 1994, after the university agreed to defer plaintiff's obligation to pay the outstanding balance of his tuition. See Pl. Aff., at 6; Complaint, at ¶¶ 33-36; Perri Aff., at ¶ 60; Deft. Rule 56.1 Statement, at ¶¶ 15-16.
Ross University is located on the island of Dominica in the West Indies, and has administrative offices in New York. See Answer, at ¶ 4.
The United States Medical Licensing Examination ("USMLE"), a test administered by organizations independent from the medical school, including the Educational Commission for Foreign Medical Graduates ("ECFMG"), consists of three separate examinations (Steps I-III). See Perri Aff., at ¶¶ 15-20; USMLE Bulletin of Information, at ii, attached as Ex. B to Perri Aff.; Deft. Rule 56.1 Statement, at ¶¶ 2-3. Step I covers basic sciences; Step II covers proficiency in clinical sciences; and Step III covers the ability to employ the information learned in both basic and clinical sciences, and is taken after obtaining the M.D. degree.See Perri Aff., at ¶¶ 21-22; USMLE Bulletin of Information, at 2. An individual must pass all three steps in order to be licensed to practice medicine in the United States. See Perri Aff., at ¶ 29. It is a requirement of ECFMG that a person must obtain a certificate of good standing from his medical school in order to sit for the USMLE examination. See Perri Aff., at ¶ 23.
For many years, Ross University required that each student pass Step I of the USMLE in order to receive a medical degree. See Perri Aff., at ¶ 34; Deft. Rule 56.1 Statement, at ¶ 5. Effective January 1995, Ross University adopted a rule requiring each of its students to pass Step I within three attempts, and requiring the explusion of students from the school for failure to do so.See Perri Aff., at ¶ 35; Ross University Handbook, at 2, attached as Ex. C to Perri Aff.; Deft. Rule 56.1 Statement, at ¶ 6. In August 1995, Ross University adopted another rule requiring its students to take and pass Step I before proceeding from the basic science portion of their medical education to the clinical sciences curriculum. See Perri Aff., at ¶¶ 37-38; Deft. Rule 56.1 Statement, at ¶ 7. The rule provided that a student was not in good standing at the university and therefore, could not participate in clinical studies (with one exception not applicable here), until he or she passed Step I of the USMLE. See Perri Aff., at ¶¶ 37-38; Deft. Rule 56.1 Statement, at ¶ 8. These rules were published throughout the school, a bulletin announcing them was mailed to every student enrolled at the university, and they were included in the student handbook. See Perri Aft., at ¶¶ 40-41; Exs. C and D to Perri Aff.; Deft. Rule 56.1 Statement, at ¶¶ 9-10.
In June 1995, plaintiff took and failed Step I of the USMLE.See Complaint, ¶ 62; Deft. Rule 56.1 Statement, at ¶¶ 18-19. The results of the June 1995 Step I exam were released in July 1995, at which time plaintiff was already participating in a clinical rotation at St. Luke's Hospital in Missouri. See Perri Aff., at ¶ 69. The university had previously certified plaintiff to take Step I on two different occasions in 1993. See Pl. Aff., at 7; Perri Aff., at ¶ 74; Exs. L and M to Perri Aff. Upon learning that plaintiff had failed Step I in June 1995, the university thus assumed that plaintiff had then failed Step I three times, and instructed plaintiff to refrain from participating in clinical rotations until he provided the university with either the test results from the 1993 examinations, or certification from the ECFMG that he had not taken the exam on the earlier occasions. See Perri Aff., at ¶¶ 74-86. Plaintiff contends that he did not sit for Step I prior to June 1995, and an August 1998 letter from the ECFMG confirms this. See Pl. Aff., at 7; Letter from ECFMG, dated August 25, 1998, attached as Ex. 21 to Pl. Aff. Plaintiff acknowledges, however, that although he requested that ECFMG send the requested certification to the university, they did not do so. See Pl. Aff., at 8; Complaint, at ¶ 73; Letters from Plaintiff to ECFMG, dated November 16, 1996 and March 18, 1996, attached as Ex. 20 to Pl. Aff. Plaintiff also acknowledges that the Dean of Clinical Studies, Nancy Perri, contacted him and instructed him to refrain from participating in clinical rotations until he submitted this documentation. See Pl. Aft., at 7. Nevertheless, at plaintiff's urging, Perri permitted plaintiff to complete the rotation in which he was already participating, based on his assurance that he had only taken Step I once; she advised him, however, that he could not participate in further rotations until he submitted the requested documentation. See Perri Aff., at ¶¶ 84-86.
Although plaintiff alleges that the university and ECFMG conspired to fail him, see Pl. Aff., at 7, this conspiracy allegation is not an issue in this case. By Order, dated January 22, 1999, the Court denied plaintiff's motion to amend his complaint to add allegations of fraud, conspiracy, and defamation, holding, inter alia, that plaintiff's wholly conclusory allegations of conspiracy and fraud were facially insufficient to state a claim. See Order, dated January 22, 1999. Even with the completion of pretrial discovery, plaintiff has failed to adduce any evidence to support his conspiracy theory.
The rule requiring that each medical student pass Step I prior to participating in a clinical rotation did not go into effect until August 1995, and thus plaintiff was properly participating in this rotation, even though he had not passed Step I.
In November 1995, without the university's knowledge, plaintiff commenced another clinical rotation at St. Luke's Hospital. See Perri Aff., at ¶ 90; Deft. Rule 56.1 Statement, at ¶ 31. When Perri learned that plaintiff was participating in this rotation in violation of the university's regulations, Perri again informed plaintiff that he could not engage in any further clinical rotations until he passed Step I and provided proof to the university that he had not taken and failed Step I three times. See Perri Aff., at ¶¶ 93-97. Again, Perri permitted plaintiff to complete the rotation he had started, with a warning that he had to obtain the requested certification prior to participating in any further rotations. See Perri Aff., at ¶¶ 94-97.
In August 1995, the school had enacted the additional requirement that each student pass Step I prior to commencing clinical studies.
Without providing the university with this documentation, plaintiff participated in another rotation at St. Luke's in April 1996. Perri discovered this upon receiving notice from St. Luke's that because plaintiff had been accused of making unwanted sexual advances towards another medical student, he was being dismissed from the rotation. See Letter from Dr. Charles Van Way, dated April 26, 1996, attached as Ex. Q to Perri Aff.; Perri Aff., at ¶ 101; Deft. Rule 56.1 Statement, at ¶¶ 34-36. Perri confirmed that plaintiff had been participating in this rotation, and then dismissed plaintiff from Ross University for improperly participating in clinical rotations before passing Step I of the USMLE and for misrepresenting himself as a student in good standing. See Letters from Perri to plaintiff, dated April 26, 1996 and April 29, 1996, attached as Exs. R and S to Perri Aff.; Perri Aff., at ¶ 102; Deft. Rule 56.1 Statement, at ¶ 36.
Plaintiff appealed his dismissal through the university's administrative process. The university agreed to delay a final determination on the appeal until after plaintiff took Step I again, and the university received the results. See Perri Aff., at ¶ 109; Deft. Rule 56.1 Statement, at ¶¶ 39-40. On August 12, 1997, plaintiff failed Step I, see Ex. T to Perri Aff., and the university therefore determined that plaintiff's appeal was moot, because he had then failed Step I three consecutive times. See Deft. Rule 56.1 Statement, at ¶¶ 41-42.
It is undisputed that plaintiff took Step I in June 1995 and in June 1996, and had failed the exam both of these times.See Perri Aff., at ¶ 110; Ex. 21 to Pl. Aff.
Plaintiff alleges that his dismissal from the university was based on race and national origin discrimination, and that he received less favorable treatment in assignment to clinical courses than white American students. See Pl. Aff., at 11; Complaint, at ¶¶ 90-99. Plaintiff alleges that the university breached its contract with plaintiff by wrongly and unjustly dismissing him and by refusing to award him a medical degree. See Pl. Aff., at 11; Complaint, at ¶¶ 105-108. He further alleges that the university was negligent in maintaining its business records, which led to his dismissal from the university. See Pl. Aff., at 11; Complaint, at ¶¶ 105-108. Finally, plaintiff alleges that defendant intentionally and recklessly dismissed him, thereby intentionally inflicting emotional distress. See Pl. Aff., at 11; Complaint, at ¶¶ 100-104.
DISCUSSION
I. Summary Judgment Standard
Summary judgment is appropriate only when the submissions of the parties, taken together, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. In deciding a motion for summary judgment, the Court must "view the evidence in a light most favorable to the non-moving party and draw all reasonable inferences in its favor." American Casualty Co. of Reading, Pennsylvania v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2nd Cir. 1994). In addition, because plaintiff is actingpro se, the Court must "read his supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2nd Cir. 1994); accord Soto v. Walker, 44 F.3d 169, 173 (2nd Cir. 1995). Nevertheless, to defeat a motion for summary judgment, a plaintiff "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356. (1986). A plaintiff must "come forward with enough evidence to support a jury verdict in [his] favor, and the motion will not be defeated merely . . . on the basis of conjecture and surmise." Trans Sport, Inc. v. Starter Sportswear, Inc., 964 F.2d 186, 188 (2nd Cir. 1992). A party opposing a motion for summary judgment "may not rest on the pleadings, but must further set forth specific facts in the affidavits, depositions, answers to interrogatories, or admissions showing a genuine issue exists for trial." Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2nd Cir. 1996); see also Fed.R.Civ.P. 56(c) and (e);Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2553 (1986). Only competent evidence may be considered in determining the outcome of a motion for summary judgment. See Sheldon v. Barre Belt Granite Employer Union Pension Fund, 25 F.3d 74, 79 (2nd Cir. 1994); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 526 (2nd Cir. 1994); Cordoba v. McElroy, 78 F. Supp.2d 240, 245 (S.D.N.Y. 2000). II. Discrimination
Plaintiff has submitted, as exhibits, a number of purported transcriptions of conversations he had tape recorded. Defendant contends that the tape transcripts are not competent evidence,see Defendant's Memorandum of Law, at 6-13, and there is no information provided from which the Court could authenticate these transcriptions. The Court need not decide, however, whether the transcripts are competent evidence because, having reviewed them, it is apparent that nothing in these tapes gives rise to an issue of fact that is material to the resolution of defendant's motion.
Plaintiff contends that his rights under 42 U.S.C. § 1981 and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, were violated, because the university discriminated against him on the basis of his race and national origin, both in dismissing him from the medical school and in the manner in which it assigned clinical rotations.
Section 1981 provides:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens. . . .
The elements of a § 1981 claim are (1) plaintiff's membership in a racial minority; (2) discrimination based on one or more of the activities enumerated in the section; and (3) an intent by the defendant to discriminate on the basis of race. See Patterson v. McLean Credit Union, 491 U.S. 164, 210, 109 S. Ct. 2363, 2390 (1989); Mian v. Donaldson, Lufkin Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2nd Cir. 1993); Hines v. Port Authority of New York and New Jersey, No. 94 Civ. 5109 (NRB), 2000 WL 420555, at *5 (S.D.N.Y. Apr. 18, 2000); Tripp v. Long Island University, 48 F. Supp.2d 220, 223 (E.D.N.Y. 1999); Dove v. Fordham University, 56 F. Supp.2d 330, 337-338 (S.D.N.Y. 1999). "Mere conclusory allegations of discrimination do not suffice to support a § 1981 claim." Hines, 2000 WL 420555, at *5 (citingYusuf v. Vassar College, 35 F.3d 709, 713 (2nd Cir. 1994)). Section 1981 applies to both private and state actors, including independent academic institutions. See Yusuf, 35 F.3d at 714;Albert v. Carovano, 851 F.2d 561, 572 (2nd Cir. 1988); Odom v. Columbia University, 906 F. Supp. 188, 194 (S.D.N.Y. 1995)
Plaintiff also brings claims of discrimination under Title VI of the Civil Rights Act of 1964, which provides: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal Financial assistance." 42 U.S.C. § 2000d. To establish a claim under Title VI, a plaintiff must show both: (1) that the entity involved engaged in racial or national origin discrimination; (2) the entity involved is receiving federal financial aid; and (3) plaintiff was an entitled beneficiary of the program or activity receiving the aid. See Gebser v. Lago Vista Independent School District, 524 U.S. 274, 275, 118 S. Ct. 1989, 1992 (1998); New York Urban League, Inc. v. State of New York, 71 F.3d 1031, 1036 (2nd Cir. 1995); Association Against Discrimination in Employment, Inc. v. City of Bridgeport, 647 F.2d 256, 276 (2nd Cir. 1981); Commodari v. Long Island University, 89 F. Supp.2d 353, 377-378 (E.D.N Y 2000); Tripp, 48 F. Supp.2d at 226.
Plaintiff is black and from Sudan, and thus he has met one of the criteria for a claim of discrimination under § 1981 and Title VI. Nevertheless, plaintiff has failed to come forward with any evidence, beyond his conclusory allegations, which would allow a rational jury to find any unlawful discrimination by defendant. For example, plaintiff argues that "If I was white, they would have to think twice. They would have to tell me, look, whatever it is you fix it this way. Because, because I'm black and I'm foreigner in this country, they just got rid of me." Plaintiff's Deposition ("Pl. Dep."), at 147, attached as Exs. G and V to Perri Aff. Further, although plaintiff alleges that the university unfairly deprived him of the opportunity to complete certain rotations in New York City, his claim of discrimination in the manner of assigning rotations is both conclusory and vague, and plaintiff provides no specific examples to support his claim. Rather, he merely alleges that "[t]here's [a] black person and other people who get better opportunity than me, most of them were white, specifically, lots of Jewish too," although he could not identify any individuals, aside from an unnamed person, whom he had heard was getting to do preferred rotations because of his connection with the Dean. See Pl. Dep., at 122. These hearsay, conclusory allegations, do not even support plaintiff's claim that the preferential treatment was based on race and national origin, no less provide any specific evidence supporting his claim of racial or national origin animus in assigning clinical rotations. In short, these conclusory allegations are insufficient, as a matter of law, to give rise to an inference of discrimination. See Yusuf, 35 F.3d at 713 ("A plaintiff alleging . . . discrimination by a university must do more than recite conclusory allegations"); Adams, 1999 WL 544727, at *2 ("Conclusory allegations do not a cause of action make [under Title VI]"); cf. Hines, 2000 WL 420555, at *5 (granting summary judgment on § 1981 claim where plaintiff came forward with no evidence of specific actions to demonstrate racial animus);Tripp, 48 F. Supp.2d at 224 (granting summary judgment where plaintiff came forward with no evidence beyond conclusory allegations that the grade received was discriminatory, rather than a fair assessment of the work)
Defendant does not argue, and the Court need not decide, whether plaintiff has satisfied elements two and three of a claim under Title VI.
Moreover, defendant has come forward with a legitimate, nondiscriminatory reason for plaintiff's termination from the medical school — his participation in clinical rotations in violation of university rules and regulations because he had not passed Step I of the USMLE. Plaintiff has not argued that this requirement was, on its face, discriminatory. Nor has plaintiff come forward with any evidence to suggest either discriminatory intent or impact with respect to this requirement.
Finally, plaintiff has not identified any similarly situated individuals of a different race or national origin than himself who were treated more favorably. When pressed at his deposition to identify any individual, plaintiff identified five other medical students — Athelia Balams, Mohammed Al-Amoudi, Abbas Rabiei, Jason Rose, and Paul Lucas — whom he alleged "were allowed to do their training and they failed the exams." Pl. Dep., at 125. The evidence clearly shows that none of these other individuals were similarly situated to plaintiff. Abbas Rabiei, a white Canadian, had passed Step I in June 1995, before the university enacted the rule requiring that a student pass Step I prior to commencing clinical rotations. See USMLE results and Transcript, attached as Ex. Y to Perri Aff.; Perri Aff., at ¶ 138. Jason Rose, a white American, graduated from the university in February 1995, having passed Step I prior to graduation, and having completed his clinical rotations and graduated prior to the enactment of the rules requiring that Step I be passed before participating in clinical rotations. See USMLE results and Transcript, attached as Ex. Z to Perri Aff.; Perri Aff., at ¶ 139. Paul Lucas had passed Step I in July 1993, also prior to the enactment of any rules regarding the timing of Step I. See USMLE results and Transcript, attached as Ex. AA to Perri Aff.; Perri Aff., at ¶ 140. Finally, two of the individuals identified by plaintiff as being treated more favorably, Balams and Al-Amoudi, were black and from countries other than the United States and Canada. Moreover, these two individuals were not similarly situated to plaintiff. Athelia Balams, a black woman from Cameroon, had passed Step I in 1995. See USMLE results and Transcript, attached as Ex. W to Perri Aff.; Perri Aff., at ¶ 135. Mohammed Al-Amoudi, a black man from Saudi Arabia, began his clinical rotations in February 1994, prior to the enactment of the rule requiring that a student pass Step I prior to commencing clinical rotations. He did not participate in any rotations after the enactment of the new Step I rules, until he passed Step I in October 1996. See USMLE results and Transcript, attached as Ex. X to Perri Aff.; Perri Aff., at ¶¶ 136-137.
Thus, contrary to plaintiff's contention that these other similarly situated individuals received more favorable treatment, the evidence shows that none of these individuals was similarly situated to plaintiff because, unlike plaintiff, each of them took and passed Step I in accordance with the applicable regulations of the university. Plaintiff was terminated after he repeatedly improperly participated in rotations without passing Step I, and failed Step I on three occasions. There is simply no basis on which a jury could reasonably conclude that plaintiff was treated less favorably because of his race or national origin. Because plaintiff's claim of discrimination rests entirely on conclusory allegations, summary judgment is appropriate. See Albert, 851 F.2d at 573 (in order to support a claim of selective enforcement of a school's policy, a plaintiff must show "purposeful and systematic discrimination by specifying instances in which [he was] singled out for unlawful oppression in contrast to others similarly situated"); Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir. 1989) (plaintiff's "obligation was to identify and relate specific instances where persons situated similarly 'in all aspects' were treated differently); cf. Adams, 1999 WL 544727, at *2 (granting motion to dismiss Title VI claim where it was undisputed that plaintiff was not qualified to receive the athletic scholarship in issue because she had failed mathematics, and there were no allegations that white athletes who failed mathematics received the scholarship); Odom, 906 F. Supp. at 194 (granting motion to dismiss Section 1981 claim where plaintiff did not refer to a single situation where a similarly situated student was treated differently by the university).
III. Breach of Contract
Plaintiff alleges that the university unjustly dismissed him, in violation of its rules and regulations, thereby breaching its contract with him. See Pl. Dep., at 289; Pl. Aff., at 11; Complaint, at ¶¶ 109-111.
Although plaintiff has made an allegation that defendant breached a promise made to him in 1991 with respect to securing him a business visa to return to the United States, he does not base his breach of contract claim on that purported promise. See Complaint, at ¶ 110; Pl. Aff., at 11. Moreover, assumingarguendo, that such a promise could give rise to an enforceable contract, there is no evidence of a breach of that promise. Plaintiff asserts that the school promised to secure him a business visa to allow him to return to the United States to complete his clinical rotations, and that between 1992 and 1994, he was not provided such a visa. See Complaint, at ¶¶ 13, 22-23. There is no dispute that between 1992 and 1994, plaintiff was not permitted to participate in clinical rotations because he was in arrears in his tuition, and was therefore, not a student in good standing. See Perri Aff., at ¶ 55; Complaint, at ¶ 33. Plaintiff did return to the United States with a tourist visa, and he has come forward with no evidence to demonstrate that the lack of a business visa in any way effected his ability to participate in clinical rotations.
Under New York law, a student can sue his school for breach of contract. See Gally v. Columbia University, 22 F. Supp.2d 199, 206 (S.D.N.Y. 1998); Clarke v. Trustees of Columbia University, No. 95 Civ. 10627 (PKL), 1996 WL 609271, at *5 (S.D.N.Y. Oct. 23, 1996); Keles v. New York University, No. 91 Civ. 7457 (SWK), 1994 WL 119525, at *4 (S.D.N.Y. Apr. 6, 1994), aff'd, 54 F.3d 766 (1995); Olsson v. Board of Higher Education, 49 N.Y.2d 408, 413-414 (1980). When a student enrolls at a university, an implied contract arises: if the student complies with the terms prescribed by the university, he will obtain the degree he seeks.See Gally, 22 F. Supp.2d at 206; Keles, 1994 WL 119525, at *5. The terms of the implied contract are supplied by bulletins, circulars, and regulations made available to the student. See Clark, 1996 WL 609271, at *5; Keles, 1994 WL 119525, at *5;Vought v. Teachers College, Columbia University, 511 N.Y.S.2d 880, 881 (1987); Sweeny v. Columbia University, 704 N.Y.S.2d 617, 618 (2d Dept. 2000) Implicit in a university's general contract with its students is a right to change the academic degree requirements, provided that such changes are not arbitrary and capricious. See Keles, 1994 WL 119525, at *6.
Although neither party has addressed the issue of why New York law governs this case, both parties rely on New York law, and defendant has administrative offices in New York. See Answer, at ¶ 4. In a diversity case, "where the parties have agreed to the application of the forum law, that consent concludes the choice of law inquiry." American Fuel Corporation v. Utah Energy Development Co., Inc., 122 F.3d 130, 134 (2nd Cir. 1997); see also 3Com Corp. v. Banco Do Brasil. S.A., 171 F.3d 739, 743 (2nd Cir. 1999). Accordingly, the Court applies New York law to plaintiff's common law claims.
However, because the decisions that educational institutions make about academic standards involve "the subjective judgment of professional educators," claims regarding such matters are subject to judicial review only "to determine whether [the defendants] abided by their own rules, and whether they have acted in good faith or their action was arbitrary or irrational."Gertler v. Goodgold, 487 N.Y.S.2d 565, 569 (1985); see also Clarke, 1996 WL 609271, at *6; Keles, 1994 WL 119525, at *6; Garg v. Albert Einstein College of Medicine, 747 F. Supp. 231, 236 (S.D.N.Y. 1990); Sweeny, 704 N.Y.S.2d at 618. "The issue in determining a motion for summary judgment . . . is whether any genuine issue of material fact remains as to whether defendants acted in bad faith or in an arbitrary or irrational manner."Clarke, 1996 WL 609271, at *6.
Plaintiff's claim of breach of contract is based on Ross University's April 1996 decision to dismiss plaintiff. It is undisputed that, at the time of his dismissal, plaintiff had participated in two clinical rotations at St. Luke's Hospital, without having first passed Step I of the USMLE. See Ex. 11 to Pl. Aff. Defendant's Student Handbook provides that "[s]tudents in the clinical phase of the curriculum are in good standing if they have met all financial obligations to the University, have passed Part One of the USMLE, and have received satisfactory evaluations for all clinical rotations." Ex. C to Perri Aff. The Handbook further requires that, if a student arranges his own clinical rotation, prior to beginning the rotation the student must notify the school's clinical department in writing or by phone, and must request and receive a letter of good standing from the medical school. See Ex. C to Perri Aff. Plaintiff has acknowledged that the handbook constituted his contract with the university. See Complaint, at ¶ 110; Pl. Dep., at 289-290.
By participating in clinical rotations without notifying the university and without having first passed Step I, plaintiff was not in good standing under the regulations set forth in the student handbook. Moreover, Perri had previously informed plaintiff that he could not participate in clinical rotations until he provided the university with proof that he had passed Step I. Because plaintiff was participating in the clinical rotations at St. Luke's in violation of Ross University rules and regulations, no rational jury could find that the university acted in an arbitrary or irrational manner in dismissing him. Cf. Keles, 1994 WL 119525, at *5 (granting summary judgment on a claim of breach of contract in dismissing a graduate student, where plaintiff did not pass the examinations at the proper stage of his studies, and thus did not fulfill the requirements of the university's regulations); Benson v. Trustees of Columbia University, 626 N.Y.S.2d 495, 496 (1st Dept. 1995) (dismissing Ph.D. student's claim of breach of contract because the university following its guidelines in evaluating her academic performance, and thus did not act arbitrarily). IV. Negligence
There can be no argument that the university breached any contract with plaintiff by requesting that he submit proof that he had not failed Step I on three occasions. The university's rules and regulations provide that if a student failed Step I three times, he would be dismissed. It was not arbitrary and capricious for the university to raise a question about this issue since plaintiff had secured its certification for the exam on three occasions. In any event, the university permitted plaintiff to continue two separate rotations, even though he did not provide the necessary documentation. He was ultimately terminated because he violated the rule requiring a student to pass Step I prior to participating in clinical rotations, and there is no dispute that by the time his termination became final, he had failed the exam on three occasions.
Plaintiff alleges in the Complaint that defendant breached its duty of care by failing to adequately maintain its records. See Complaint, at ¶¶ 105-107. In his affidavit in response to the instant motion, he suggests that his dismissal was negligent and caused him to lose his future as a physician. See Pl. Aff., at 11.
Under New York law, to succeed on a claim of negligence, a plaintiff must prove: 1) that the defendant owed a duty of care to the plaintiff; 2) a breach of this duty of care; and 3) injury to the plaintiff as a proximate cause of the defendant's breach of duty. See, e.g., King v. Crossland Savings Bank, 111 F.3d 251, 255 (2nd Cir. 1997); Akins v. Glenns Falls City School District, 53 N.Y.2d 325, 335 (1981)
At his deposition, plaintiff testified that defendant was negligent in failing to properly maintain its documents indicating how many times he took Step I, and in sending a letter addressed to the home of his mother in Sudan. See Pl. Dep., at 303. The evidence in the record shows, and plaintiff does not dispute, that ECFMG would only release a student's test scores to the student, and thus the student bore the responsibility of informing the university of his USMLE scores. See USMLE Bulletin, attached as Ex. B to Perri Aff.; Perri Aff., at ¶ 27. It is also undisputed that the university's records indicating that plaintiff was certified to take the examination on two occasions in 1993 were accurate. Even assuming that the university did have a duty to maintain records about plaintiff's USMLE results, the university did maintain accurate records that plaintiff had been certified for Step I twice in 1993, and again in June 1995. In response to plaintiff's contention that he did not take the Step I test in 1993, the university repeatedly provided plaintiff the opportunity to submit documentation from ECFMG, and plaintiff did not do so. See Perri Aff., at ¶¶ 74-86, 93-97; Pl. Aff., at 7. Therefore, there is no basis on which a jury could reasonably conclude that defendant failed to properly maintain records related to plaintiff's USMLE status.
The Court is not without sympathy for the plaintiff, who it appears, did attempt on several occasions to obtain this documentation from ECFMG. Nonetheless, plaintiff's inability to obtain this documentation has no bearing on whether defendant was negligent in failing to maintain records which only plaintiff could provide.
Moreover, the primary injury suffered by plaintiff — his dismissal from the medical school — was based on the fact that he participated in clinical rotations after he failed Step I in June 1995. It is undisputed that plaintiff failed Step I in June 1995 and that he participated in rotations subsequent to failing Step I, in violation of the university's regulations. Thus, his dismissal cannot be attributed to any alleged failure by the university to maintain accurate records.
Because he had not provided the requested documentation that he had not failed Step I three times, the university refused to certify him for the exam in the Fall of 1995. It is undisputed that plaintiff took the exam two more times after June 1995, and that plaintiff failed the exam on both occasions.
Similarly, plaintiff's appeal of the decision to dismiss him was terminated after plaintiff took, and failed, Step I two times subsequent to June 1995. The fact that plaintiff failed Step I three times is undisputed, see Pl. Dep., at 157, and the university regulations provide for expulsion when a student fails Step I three times.
Similarly, plaintiff's claim of negligence based on the university mailing a 1993 letter requesting his results from the September 1993 Step I exam, to his address in Sudan, must fail as a matter of law. See Letter, dated November 12, 1993, attached as Ex. 13 to Pl. Aff. Assuming, arguendo, that the university breached a duty to plaintiff by sending a letter, with a typographical error in the address, to Sudan, no rational jury could find that this purported breach was the proximate cause of any injury to plaintiff. Even if plaintiff never received this 1993 letter, plaintiff does not allege that the university took any action as a result of the absence of his 1993 Step I results until after he had failed Step I in June 1995, and the university had made a direct request to him concerning the 1993 exams. In fact, the policies requiring students to pass Step I prior to participating in clinical rotations, and requiring students to pass Step I within three attempts, were not even enacted until January and August 1995, respectively. Accordingly, no rational jury could conclude that plaintiff suffered any injury as a result of this alleged breach of duty in 1993.
Plaintiff does not specifically identify which letter was mailed to Sudan, and defendant assumes that it was one of his letters of dismissal. However, the record shows that both letters of dismissal were mailed to plaintiff in Missouri (where he was doing a rotation), see Exs. R and S to Perri Aff., whereas only the 1993 letter was mailed to Sudan.
Finally, plaintiff cannot support a claim that his dismissal by the university was an act of negligence. As discussed in the breach of contract section, plaintiff was terminated in accordance with the rules and regulations of the university because he participated in clinical rotations without first having passed Step I. Contrary to plaintiff's belief, defendant did not owe him any duty to retain him as a student regardless of whether or not he adhered to university rules and regulations.
For these reasons, plaintiff's claims of negligence are dismissed.
V. Intentional Infliction of Emotional Distress
Defendant argues that plaintiff's claim of intentional infliction of emotional distress must be dismissed because it is time-barred.
New York law requires a claim for intentional infliction of emotional distress to be commenced within one year of the alleged incident. See New York CPLR § 215(3); EEOC v. Die Fliedermaus, LLC, 77 F. Supp.2d 460, 473 (S.D.N.Y. 1999); Burrell v. City University of New York, 995 F. Supp. 398, 415-416 (S.D.N.Y. 1998); Forbes v. Merrill Lynch, 957 F. Supp. 450, 455 (S.D.N.Y. 1997); Spinale v. Guest, 704 N.Y.S.2d 46, 47 (1st Dept. 2000). Under New York law, a cause of action for a tort accrues at the time of the injury. See Global Financial Corp. v. Triarc Corp., 93 N.Y.2d 525, 529 (1999); Maxon v. Franklin Traffic Service, Inc., 689 N.Y.S.2d 559, 561 (4th Dept. 1999); Konigsberg v. State of New York, 681 N.Y.S.2d 915, 916 (3d Dept. 1998)
Plaintiff's claim of intentional infliction of emotional distress is based on his allegation that defendant's recklessly and intentionally discharged him from the university, causing him anxiety and emotional distress. Plaintiff was discharged from the university in April 1996. Plaintiff did not commence the present action until February 26, 1998, more than eighteen months after the conclusion of the events giving rise to his cause of action. Accordingly, this claim is barred by the applicable statute of limitations.
Although plaintiff's appeal of the discharge concluded in August 1997, his purported injury relates to his treatment by defendant while he was a student and in connection with his April 1996 dismissal. His injury thus arose by no later than April 1996, the date of his termination. Cf. Edwards v. State, 407 N.Y.S.2d 804, 806 (Ct. Claims 1978) (statute of limitations for tort accrued on date of the injury, not on date when the administrative appeal became final); Day v. Moscow, 955 F.2d 807, 813 (2nd Cir. 1992) (statute of limitations not tolled for time taken to file notice of claim with municipality because no requirement that such notice of claim be filed prior to commencement of federal § 1983 suit); King v. New York Telephone Company, 785 F.2d 31, 33 (2nd Cir. 1986) (cause of action accrues no later than the time when plaintiff could have first successfully maintained a suit based on that cause of action, even if some possibility of nonjudicial remedy remained);Halpern v. Bristol Board of Education, 52 F. Supp.2d 324, 329 (D. Conn. 1999) (the limitations period on wrongful termination claim under § 1983 began to run when the employee received notice of the adverse decision, and the pendency of a grievance, or other method of collateral review, did not toll the statute of limitations); Lewis v. John Hancock Mutual Life Insurance Company, 6 F. Supp.2d 244, 247 (S.D.N.Y. 1998) (ERISA cause of action accrued on date plaintiff's claim for benefits was denied, not on date appeal was denied).
In any event, as a matter of law plaintiff cannot sustain a claim for intentional infliction of emotional distress. In order to prevail on a claim of intentional infliction of emotional distress under New York law, a plaintiff must show "(1) extreme and outrageous conduct; (2) intent to cause severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress." Bender v. City of New York, 78 F.3d 787, 790 (2nd Cir. 1996) (citing Howell v. New York Post Co., 81 N.Y.2d 115, 121 (1993)); see also Stuto v. Fleishman, 164 F.3d 820, 827 (2nd Cir. 1999). In order to satisfy this standard, a plaintiff must show that the behavior to which he was subjected was "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Murphy v. American Home Products Corp., 58 N.Y.2d 293, 302 (1983) (quoting Restatement of Torts, Second, § 46, comment d (1965)); see also Stuto, 164 F.3d at 827; Howell, 81 N Y2d at 121.
The Court has already determined that plaintiff's dismissal from the university was not discriminatory, negligent, or in breach of contract. Rather, it resulted because of plaintiff's failure to adhere to university rules and regulations. Thus, there is no basis to conclude that plaintiff's dismissal was extreme or outrageous conduct which could give rise to a claim of intentional infliction of emotional distress. Accordingly, defendant's motion for summary judgment on plaintiff's claim of intentional infliction of emotional distress is granted.
CONCLUSION
For the reasons set forth above, defendant's motion for summary judgment is granted, and this action is dismissed with prejudice.
SO ORDERED.