Opinion
Case No. 2:98-CV-1274
February 5, 2002
OPINION AND ORDER
This matter is before the Court for consideration of the Defendants' Motion for Summary Judgment. (Doc. #62). For the reasons that follow, the motion is granted.
I.
Plaintiff, a former student at the Ohio State University College of Medicine ["OSU COM"], brings this action under 42 U.S.C. § 1981 and 1983 claiming race and gender discrimination as well as violations of the equal protection, procedural and substantive due process guarantees of the United States Constitution. The Defendants in this action are the Ohio State University ["OSU"]; the OSU COM; the OSU Medical Center; the OSU Board of Trustees; William B. Kirwan, President of OSU; E. Gordon Gee, former President of OSU; J. Richard Sisson, Provost; Bernadine P. Healy, Dean of OSU COM; Manuel Tzagournis, former Dean of OSU COM; Seth Kantor and Mary McIllroy, OSU COM employees; and OSU Medical Center employees: Ernest Mazzafern, Roy St. John, James Bacon, Earl Metz and Jane Trask. The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331.
Plaintiffs claims arise as a result of the circumstances surrounding her dismissal from the OSU COM on December 24, 1997. Plaintiff, who is African-American, was accepted to the OSU COM on March 23, 1987 for enrollment in fall 1987 term. Upon her acceptance, Plaintiff signed an acknowledgment of her understanding that she "must comply with all admission requirements before [being] permitted to register for the 1987 First Year Class." (Exhibit C attached to Deposition qf Sheila Bell, hereinafter "Plaintiff's Depo."). Plaintiff further acknowledged that she had read and understood the Honor Code of the OSU COM and agreed to abide by the same while enrolled. (Id.).
Plaintiff commenced her studies in the Fall of 1987 in a program known as the Independent Study Program ["ISP"]. On June 16, 1988, Deanne Esken, ISP Coordinator, notified Plaintiff that she was in jeopardy of failing "Med Coll 662" because of unsatisfactory progress on two exams. Ms. Esken requested that Plaintiff appear before the Student Review Committee at the ISP Oftice on July 1, 1988 to consider the option of possibly retaking the course through the LDP. (Exhibit F attached to Plaintiff's Depo.). Plaintiff appeared before the Committee on the appointed date. The Committee recommended that Plaintiff withdraw from the first year ISP program immediately and transfer to the LDP. Plaintiff declined to withdraw and chose to continue in the program. (Exhibit F, Id.). Plaintiff successfully passed the third exam and was notified that the Committee would evaluate her performance after the fourth exam. (Exhibit G, Id.). Plaintiff failed to appear for the fourth exam. Plaintiff appeared before the ISP Committee on November 29, 1988 to discuss her continued enrollment in the ISP. (Exhibit H, Id.). Plaintiff was given an opportunity to retake the fourth exam and was notified that the Committee would evaluate her performance again in January 1989. (Exhibit 1, Id.).
The ISP differs from the traditional Lecture and Discussion [known as the "LDP"] method of medical school training. In the ISP program, students learn by reading and attend very few lectures. (Plaintiff's Depo. at 10). Students in the ISP program must, however, complete examinations in accordance with the curriculum. (Deposition of Seth Kantor, M.D., hereinafter "Kantor Depo." at 24). The ISP program is available to students during the first two years of enrollment at the OSU COM. (Id.).
On January 31, 1989, the Committee approved Plaintiff's request to take the first three sections of the National Board Examination no later than May 1 and 2, 1989 (Exhibit J, Id.) Plaintiff did not take the May examination. On May 8, 1989. the Committee notified Plaintiff that she could register for the June 1989 examination. Plaintiff was admonished, however, that if she failed to complete the Boards at that time, she would have to appear before the Committee in June and dismissal from the ISP would be considered. (Exhibit K, Id.).
The exam is now known as the United States Medical Licensing Examination ["USMLE"] or the "Boards."
Plaintiff failed the first three sections of the June 1989 Boards. Plaintiff requested to retake the exam in August 1989, but the Committee denied her request. (Exhibit L, Id.). Plaintiff appealed the denial and her case was heard by the ISP Executive Committee on August 16, 1989. (Exhibit M, Id.).
On August 30, 1989, Plaintiff was notified that she failed to meet the passing criteria for Med Coll 662. Plaintiff was dismissed from the ISP but was recommended to repeat Med Coll 662 in the LDP in September 1989. (Exhibit N, Id.).
Plaintiff successfully completed her first year of medical school in the LDP. She began her second year in September 1990. In June 1991, Plaintiff was notified that she had received a an unsatisfactory, or "U"mark, the second year. Dr. O'Toole, the director of the program, recommended that Plaintiff repeat her second year before moving on to the third year curriculum. (Exhibit Q attached to Plaintiff's Depo.).
Plaintiff repeated the second year beginning in Fall 1991. Plaintiff also retook Part 1 of the Boards in June 1992. Plaintiff did not, however, authorize her scores to be sent to the OSU COM. (Exhibit R, Id.). In August 1992, the OSU COM initiated a requirement that students pass Parts 1 and 2 of the Boards in order to advance to the third year of medical study. (Exhibit D at 11 attached to Plaintiff's Depo.). On October 30, 1992, Plaintiff petitioned Dr. Kantor to waive the requirement for passage for entrance into third year study. (Exhibit S, Id.). Plaintiff contended that because the requirement was not in place when she entered the OSU COM that it should not apply to her. (Plaintiff's Depo. at 43). Plaintiff's request was granted and she began her third year of study in Fall 1992.
The USMLE is administered in three parts. Part 1, which focuses on basic sciences, is taken at the end of pre-clinical training. Part 2 covers clinical medicine. Students must pass Parts 1 and 2 in order to graduate. Part 3 is taken following the first year of residency, i.e., post-graduate training. (See Exhibit D at 11-12, attached to Plaintiff's Depo.).
On September 1, 1993, Dr. Shy, of the Med III-IV Student Review Subcommittee, notified Plaintiff that she was being placed on review status for having received an "Unsatisfactory" grade for her Internal Medicine rotation. Plaintiff had taken the rotation at the Cleveland Clinic in July and August 1993. (Exhibit T attached to Plaintiff's Depo.). Plaintiff's faculty supervisor during the rotation was Dr. Roy St. John. The director of the program was Dr. Ernest Mazzaferri. (Deposition of Dr. Roy St. John, hereinafter "St. John Depo at 6-7). Dr. St. John testified on deposition that third year medical students take "core rotations" which last for a period of two months each. (Id. at 8). Such rotations are distinguished from elective rotations, which are taken in the fourth year, after completion of core rotations. (Id. at 9).
Plaintiff's unsatisfactory grade in the Internal Medicine core rotation was due to her failure to take an Objective Structured Clinical Examination as well as the final examination. According to Plaintiff she was ill during the week the exams were administered. (Plaintiff's Depo. at 50). Plaintiff did not, however, seek medical attention because she was without health insurance. (Id. at 52). Plaintiff claims that she attempted to call Dr. St. John, but was unable to reach anyone in Columbus to notify of her absence. (Id. at 51). Dr. St. John was informed by his assistant the following week that Plaintiff failed to take the exam. (St. John Depo. at 9). Plaintiff asked to take the exams that week, but Dr. St. John denied her request and informed her that she would receive a failing grade for the rotation and would have to repeat the entire rotation before sitting for the exam and OSCE. (Plaintiff's Depo. at 55-56; St. John Depo. at 10-11).
Plaintiff appealed her unsatisfactory grade to the Internal Medicine Appeal Committee. On September 28, 1993, the Committee upheld the unsatisfactory grade but allowed Plaintiff to take the exams if she performed one month of Internal Medicine rotation. (Exhibit U attached to Plaintiff's Depo.). Plaintiff appealed the Committee's decision to Dr. Mazzaferri, Chairman of Internal Medicine. Plaintiffs cause was heard before the Internal Medicine Appeals Committee. On December 1, 1993, Dr. Mazzaferri notified Plaintiff that her grievance was without merit because her "actions exceeded the bounds of professional responsibility, from the standpoint that you did not notify our offices that you would not be present for the examination or for the clinical exercise." (Exhibit V, Id.).
Plaintiff appealed the decision of the Internal Medicine Appeals Committee to the Med III-IV Committee. Plaintiffs case was heard on February 17, 1994. The Committee upheld the decision of the Internal Medicine Appeals Committee. (Exhibit A at 2 attached to Affidavit of Dr. St. John). Plaintiff appealed this decision to the Student Progress Committee; her case was heard on April 5, 1994. On April 7, 1994, the Student Progress Committee upheld the prior decisions. In particular, Dr. Kantor stated:
The College of Medicine will expect you to fulfill the remediation requirements as outlined by the Department of Medicine in Dr. Mazzaferri's letter to you dated December 1, 1993. Your grade will be recorded as Unsatisfactory until these requirements are completed in a satisfactory manner. . . . The Student Progress Committee will expect you to make arrangements with Dr. St. John and the Med III/IV office to meet your requirements for graduation as soon as possible so as not to delay your expected graduation date.
Exhibit X attached to Plaintiff's Depo.
In April 1994, Plaintiff completed an elective rotation with one Dr. Curtis at Mt. Carmel Hospital in Columbus, Ohio. (Exhibit A at 2 attached to Affidavit of Dr. St. John). Prior to commencing the rotation, Plaintiff contacted Jane Trask, administrative assistant to the Med III/IV Committee, to schedule the internal medicine rotation. (Plaintiff's Depo. at 66). Plaintiff did not refer to the rotation as one for remediation, nor did Ms. Trask tell Plaintiff that the rotation at Mt. Carmel would satisfy the remediation. (Id.). The OSU COM viewed the one month rotation as an elective rotation which did not satisfy the one month remediation requirement.
On May 2, 1994, Plaintiff wrote a memo to Dr. St. John expressing her view of the remediation as a "new requirement" of which she was unaware. (Exhibit Z attached to Plaintiff's Depo.). In July 1994, Dr. St. John explained the following to Dr. Kantor, Dean of Medical Education, in a written memo:
The crux of the continued problem with Ms. Bell is her apparent
misunderstanding of the requirements necessary to correct her Unsatisfactory grade in the required Med III Internal Medicine two-month clerkship. It has never been indicated in any conversation or written correspondence that the additional required month of Internal Medicine could be fulfilled by an Elective rotation. The Unsatisfactory grade was received for a required clerkship and the repeat month of Internal Medicine is to be completed on a required inpatient rotation at The Ohio State University Hospital. During that month, Ms. Bell is required to participate in the OSCE as well as take the final written examination. Neither one of these can be scheduled or taken while she is on an Elective rotation.
Exhibit A at 3 attached to Affidavit of Dr. St. John.
On May 25, 1994, Dr. McIllroy, Chair of the Clinical Academic Standing Committee, informed Plaintiff that she would be unable to graduate in June 1994. He advised her that in order to graduate, Plaintiff would need to successfully pass and release the scores for the USMLE, part 2; release the scores for the USMLE. part 1; successfully complete the remediation of the core Internal Medicine rotation; successfully resolve the Anesthesia elective or complete another clinical rotation. (Exhibit BB attached to Plaintiff's Depo.).
Graduation ceremonies were held on June 9, 1994. According to Plaintiff, Ms. Trask told Plaintiff sometime in May that she could participate in the hooding ceremony but not the graduation ceremony. (Exhibit DD, Id.). Plaintiff attempted to participate in the hooding ceremony on June 9 but learned that her name was omitted from the list. (Id.). According to Plaintiff she did not receive a June 7, 1994 letter indicating that she could not participate in the hooding ceremony. (Exhibit CC, Id.; Exhibit DD, Id.).
On June 22, 1994, Plaintiff wrote a letter to Dr. Sisson, Senior Vice President for Academic Affairs and Provost. Plaintiff alleged that she was "being treated unfairly and in an arbitrary manner." (Exhibit DD, Id.). Plaintiff outlined her perception of the difficulties surrounding completion of the Internal Medicine rotation. (Id.). At some point, Plaintiff contacted Dean Leroy Pernell, who at the time was Vice Provost of the Office of Minority Affairs and a professor at the OSU College of Law, to discuss her status at the OSU COM. (Deposition qf Leroy Pernell at 6-7). At the request of Dr. Sisson, Pernell evaluated Plaintiff's status. In Pernell's view, there existed a "substantial issue [of] due process and fairness" regarding completion of the rotation. (Exhibit R attached to Plaintiff's Memorandum contra). Pernell noted, however, that it would be important to know whether Plaintiff had notice that she needed prior approval for the rotation. (Id).
On September 2, 1994, Dr. Sisson concluded that "the review process within the College of Medicine has been fair and forthright. I can find no evidence that your various appeals of the original grade have been handled unfairly. . . . I would suggest that, at this point, you turn your attention again to the College of Medicine and give serious consideration to completing this clerkship. As you know, you will not be able to graduate until this is completed." (Exhibit EE, attached to Plaintiff's Depo.). This letter was also sent to then — OSU President Gee.
In September 1994, Plaintiff left for Zambia, Africa to perform missionary work and remained there until June 1995. (Plaintiff's Depo. at 81). Plaintiff had no contact with the OSU COM during this time. (Id. at 82). At some point, she learned that her enrollment at OSU COM had terminated but that she could apply for reinstatement. (Id.). Plaintiff so applied on July 15, 1995. (Exhibit EE, Id.).
Plaintiff was readmitted to the OSU COM on May 28, 1996. Her readmission was subject to four conditions:
1. You must meet the current cognitive and non-cognitive standards of the College of Medicine, including passagc of Step 1 and Step 2 of the USMLE; 2. You must meet all curricular requirements established by the Clinical Academic Standing Committee; 3. You will be granted an exemption from the College's Six Year Rule until 7/31/97; 4. You must meet all the above requirements by July 31, 1997 or be subject to final dismissal from the College of Medicine.
Exhibit GG, Id. Plaintiff was directed to meet with Dr. Armstrong, Associate Dean of Student Affairs, to resume her studies. (Id.).
On June 16, 1996, Plaintiff wrote a letter to Dr. Bernadine Healy, Dean of the OSU COM. Plaintiff expressed dissatisfaction with the Dr. Armstrong's indication that, in addition to passing Parts 1 and 2 of the USMLE, Plaintiff would likely have to complete one or two months of Internal Medicine rotation. (Exhibit HH Id.). Plaintiff stated that, in her view, "if it were not for [a] lack of due process, general unfairness and harassment, I would have received my medical degree a long time ago." (Id.). Plaintiff attempted to schedule appointments to see Dr. Healy, but was unsuccessful. (Plaintiff's Depo. at 85).
On September 9, 1996, Dr. McIllroy, Med III/IV Director, notified Plaintiff that the Clinical Academic Standing Committee had met on August 29, 1996 to determine Plaintiff's clinical academic requirements to graduate. The Committee determined that Plaintiff would be required to complete one month of inpatient Internal Medicine at the Ohio State University Medical Center and that during the month Plaintiff was required to take and pass both the OSCE and the final clerkship examination. (Exhibit II Id.). Plaintiff was notified of the months during which the exams would be offered and was directed to complete the requirement by June 30, 1997. Plaintiff was directed to contact Ms. Trask to schedule the rotation. (Id.).
Plaintiff testified on deposition that she did not do the one month rotation, nor did she sit for the OSCE and final exam. (Plaintiff's Depo. at 86).
On October 24, 1997, the Clinical Academic Standing Committee met to review a recommendation by the Student Review Subcommittee that Plaintiff be dismissed from the OSU COM for failure to comply with the conditions of reinstatement. (Exhibit JJ, id.). Plaintiff was present at the meeting and was heard. The Clinical Academic Standing Committee recommended that Plaintiff be dismissed for "failure to complete the requirements for graduation as established upon your reinstatement;" to wit: passage of the USMLE, part 1; completion of one month of Internal Medicine rotation together with the OSCE and final examination. (Id.). Plaintiff was notified that the recommendation for dismissal would be forwarded to the Academic Review Board. (Id.). Plaintiff acknowledged on deposition that she did not pass the USMLE, part 1 nor did she complete the Internal Medicine rotation or sit for the OSCE and final exams. (Plaintiff's Depo. at 87).
Plaintiff attended a meeting of the Academic Review Board on December 12, 1997. (Exhibit KK, Id.). On December 15, 1997, the Board concluded that the Med III/IV Student Review Subcommittee and the Clinical Academic Standing Committee "had access to all necessary information for their reviews and . . . their meetings were conducted in accordance with the policies and procedures set forth by the College of Medicine and Public Health." (Exhibit LL, Id.). The Board further stated that the recommendations of these entities would be forwarded to the Dean. (Id.).
On December 24, 1997, Dean Healy notified Plaintiff that she was dismissed from the OSU COM and that she was not eligible for future reinstatement. (Exhibit MM, Id.).
Plaintiff filed suit against the Defendants herein on July 6, 1998, in the United States District Court for the Eastern District of Michigan. The action was dismissed without prejudice for lack of subject matter jurisdiction. Plaintiff filed the instant lawsuit on December 17, 1998.
II.
The procedure for considering whether summary judgment is appropriate, is found in Fed.R.Civ.P. 56(c) this section provides:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, 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.
The evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. Kress Co., 398 11.5. 144, 158-59 (1970). Summary judgment will not lie if the dispute about a material fact is genuine; "that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is appropriate however, if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also, Matsushita Electronic Indus. Co., Ltd. v. Zenith Radio Corp. 475 U.S. 574 (1986).
The United States Court of Appeals for the Sixth Circuit has recognized that Liberty Lobby, Celotex, and Matsushita have effected "a decided change in summary judgment practice," ushering in a "new era" in summary judgments. Street v. J. C. Bradford Co., 886 F.2d 1472, 1476 (6th Cir. 1989). The court in Street identifies a number of important principles in new era summary judgment practice. For example, complex cases and cases involving state of mind issues are not necessarily inappropriate for summary judgment. Id. at 1479.
In addition, in responding to a summary judgment motion, the nonmoxring party "cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must "present affirmative evidence in order to defeat a properly supported motion for summary judgment.'" id. (quoting Liberty Lobby, 477 U.S. at 257). The nonmoving party must adduce more than a mere scintilla of evidence in order to overcome the summary judgment motion. Id. It is not sufficient for the nonmoving party to merely "`show that there is some metaphysical doubt as to the material facts.'" Id. (quoting Matsushita, 475 U.S. at 586). Moreover, "[t]he trial court no longer has the duty to search the entire record to establish that it is bereft of a genuine issue of material fact." Id. That is, the nonmoving party has an affirmative duty to direct the Court's attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact.
III.
Claims under 42 U.S.C. § 1981 and 1983 1. Statute of Limitations
The Defendants seek summary judgment to the extent that Plaintiff's claims are based on events which occurred before July 6, 1996, i.e., two years before Plaintiff commenced her original action in the Eastern District of Michigan. In opposition, the Plaintiff argues that the continuing violation theory applies to bring all of the events of which she complains within the limitations period.
The statute of limitations for actions under §§ 1981 and 1983 is the analogous state statute of limitations for personal injury claims. Wilson v. Garcia, 471 U.S. 261, 276-80 (1985); Goodman v. Lukens Steel Co., 482 U.S. 656, 660-62 (1987). In Ohio, the two year limitations period found in R.C. § 2305.10 for personal injury claims applies to claims brought under § 1983, Browning v. Pendleton, 869 F.2d 989 (6th Cir. 1989), as well as to claims brought under § 1981. Nelson v. Genera/Electric Co., No. 99-4043, 2001 WL 69201 (6th Cir. Jan. 17, 2001).
While state law determines the limitations period, the commencement of the period is governed by federal law. Sevier v. Turner, 742 F.2d 262, 272 (6th Cir. 1984). "The statute of limitations commences to run when the plaintiff knows or has reason to know of the injury which is the basis of [her] action. A plaintiff has reason to know of [her] injury when [she] should have discovered it through the exercise of reasonable diligence." Id. at 273 (citations omitted). The key to this discovery is the event that "should have alerted the typical lay person to protect . . . her rights." Dixon v. Anderson, 928 F.2d 212, 215 (6th Cir. 1991).
According to the Sixth Circuit, the usual rule that the statute of limitations is triggered at the time the allegedly discriminatory action occurred is subject to "two categories of "narrowly limited exceptions.'" Id. at 216, quoting EEOC v. Penton Industrial Pub. Co., Inc., 851 F.2d 835, 837-38 (6th Cir. 1988). The first category arises where "there is some evidence of present discriminatory activity giving rise to a claim of continuing violation; that is, where an employer continues to presently impose disparate work assignments or pay rates between similarly situated employee groups." EEOC V. Penton Industrial Pub Co., Inc., 851 F.2d at 838. This category requires a current as well as a continuing discriminatory act. Dixon, 928 F.2d at 216. In other words, "[a] continuing violation is occasioned by continual unlawful acts, not continual ill effects from an original violation." Tolbert v. State of Ohio Dep.'t of Transportation, 172 F.3d 934, 940 (6th Cir. 1999). The second category arises where "there has occurred "a longstanding and demonstrable policy of discrimination.'" Dixon, 928 F.2d at 216, quoting Penton, 851 F.2d at 838. In general, repeated requests for further relief from a prior act of discrimination is insufficient; rather, there must be a continuing "overarching policy of discrimination." Janikowski v. Bendix Corp., 823 F.2d 945, 948 (6th Cir. 1987).
The Court concludes that the continuing violations theory is inapplicable to this case. At the most, Plaintiff's allegations encompass the continued ill effects of the alleged constitutional violations. Plaintiffs constitutional claims are premised upon the circumstances surrounding her completion of the Internal Medicine rotation. Plaintiff alleges that the lack of a policy or procedure in the medical student handbook to address the situation in which she found herself after not taking the final exam and OSCE resulted in a deprivation of due process. Plaintiff also alleges that the events which followed demonstrate a discriminatory animus.
In the Court's view, the events which followed Plaintiff's unsuccessful completion of the Internal Medicine rotation do not support the theory that Defendants engaged in continued unlawful acts. Rather, the events which followed can only be viewed as the "ill effects" of the Plaintiff's unsuccessful completion of the Internal Medicine rotation. Moreover, the record clearly demonstrates that Plaintiff's ultimate dismissal from the OSU COM was attributable to academic deficiencies separate from her non-completion of the Internal Medicine core rotation.
The Court also concludes that the facts at bar do not support application of the second category of the continuing violations doctrine, i.e., an overarching policy of discrimination by the Defendants. There is simply no evidence in the record to demonstrate that there was an overarching policy of discrimination directed at Plaintiff.
The Court therefore concludes that, to the extent Plaintiff seeks relief under 42 U.S.C. § § 1981 and 1983 for events which occurred prior to July 6, 1996, the Defendants are entitled to summary judgment.
2. Liability under § 1983
In order to state a claim under 42 U.S.C. § 1983, the Plaintiff must allege that she was deprived of a constitutional right and that the deprivation was alleged caused by a person acting under color of state law. Black v. Barberton Citizens Hosp., 134 F.3d 1265, 1267 (6th Cir. 1998). In this case, Plaintiff alleges that the Defendants deprived her of the due process and equal protection guarantees of the Fourteenth Amendment to the United States Constitution. The Court considers the merits of each claim, separately.
As a preliminary matter, however, the Court finds that to the extent Plaintiff sues the individually named Defendants in their official capacities, the Plaintiff's claims are barred by the Eleventh Amendment. See Hall v. Medical College of Ohio at Toledo, 742 F.2d 299, 307 (6th Cir. 1984). To the extent, however, that Plaintiff sues the Defendants in their individual capacities, the Defendants would only enjoy qualified immunity from suit. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Under this doctrine, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id. Before considering whether the defense of qualified immunity applies, the Court must first determine whether the Plaintiff has alleged deprivation of a constitutional right. County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5 (1998).
3. Plaintiffs Substantive Due Process Claim
The Fourteenth Amendment forbids any State from "depriv[ing] any person of life, liberty, or property, without due process of law." U.S. Const. am. XIV. The Due Process Clause has both a substantive and a procedural component. Substantive due process protects individuals from arbitrary action by the government. Lewis, 523 U.S. at 845. "[O]nly the most egregious official conduct can be said to be "arbitrary in the constitutional sense.'" Id. at 846. In making this determination, the Court is to consider whether the conduct alleged "shocks the conscience." Id.
In Regents of the Univ. of Michigan v. Ewing, 474 U.S. 214 (1985), the Supreme Court held that, when reviewing a claim for violation of substantive due process following a purported dismissal of a student for academic reasons, the Court
should show great respect for the faculty's professional judgment. Plainly [the Court] may not override it unless it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment.
Id. at 225.
In this case, Plaintiff alleges that a genuine issue of material fact exists as to whether the decision to dismiss her from the OSU COM was made in bad faith and was arbitrary, capricious and unfair. As detailed above, Plaintiff's dismissal was based on her failure to satisfy the conditions of her reinstatement to the medical school, namely, passage of the USMLE part 1 and failure to complete the Internal Medicine core rotation. After being readmitted to the OSU COM, Plaintiff was required to complete one month of inpatient Internal Medicine at the Ohio State University Medical Center. Plaintiff was notified that during the month she would have to take and pass both the OSCE and the final clerkship examination. (Exhibit II attached to Plaintiff's Depo.). Plaintiff was notified of the months during which the exams would be offered and was directed to complete the requirement by June 30, 1997. Plaintiff was directed to contact Ms. Trask to schedule the rotation. (Id.). Plaintiff testified on deposition, however, that she did not do the one month rotation, nor did she sit for the OSCE and final exam. (Plaintiff's Depo. at 86). In view of this evidence, the Court cannot conclude that any genuine issue of material fact exists as to the soundness of the decision to dismiss Plaintiff from the OSU COM.
The Court notes Plaintiff's position that since the Student Handbook failed to address the effect of her failure to take the Internal Medicine final exam, the decision in 1993 that Plaintiff complete an additional month of rotation could be viewed as arbitrary, capricious and unfair. (Plaintiff's Memorandum contra at 19). As detailed above, any claim for a decision made in 1993 is outside the limitations period. In any event, however, there is simply no evidence in the record to support the allegation that the decision was made in bad faith or was arbitrary or capricious. Although Plaintiff completed the original two month core rotation in Internal Medicine, she failed to appear for the final exam and OSCE. Assuming as true that Plaintiff attempted to notify someone in advance of her absence, it is undisputed that Plaintiff's absence was ultimately unexcused. The decision that Plaintiff complete an additional one month was heard by two levels of appellate review in the Internal Medicine Department. Those reviewing the facts concluded that the decision was fair. Indeed, the only argument Plaintiff makes in support of the theory that it was unfair is the fact that the Student Handbook fails to specify a remedy for the situation. This assertion simply does not give rise to a genuine issue of material fact with respect to the soundness of the decision.
Plaintiff also claims that the fact that she was not informed in 1993 that the additional one month had to be completed at an OSU hospital, demonstrates that the decision was arbitrary and capricious. The Court rejects this contention as well. First, any claim Plaintiff brings in this regard is outside the limitations period. Second, in any event, as Dr. St. John testified on deposition, Plaintiff's rotation at Mt. Carmel was not a core rotation; rather it was an elective rotation suited for a medical student who had completed the core rotation. (St. John Depo. at 8-9; 15-16). When she scheduled the rotation, Plaintiff failed to specify that it was a remediation. Thus, it should have come as no surprise to Plaintiff that the one month at Mt. Carmel was not satisfactory for completion of the core rotation requirement.
Plaintiff further claims that the decision to dismiss her from the OSU COM for failure to complete the rotation was arbitrary and capricious because a Caucasian student who missed a final exam in a clinical rotation was permitted to simply reschedule a time to take the exam. Again, this claim is outside the limitations period. Even if it were not, however, the evidence of record is too tenuous to give rise to a genuine issue of material fact that Plaintiff was treated differently on account of her race. On deposition, Plaintiff was unable to identify the student; she could not recall in what rotation the student was enrolled or whether the individual was a third or fourth year medical student; nor did Plaintiff know of the reason for the student's alleged failure to take the final exam at the scheduled time. (Plaintiff's Depo. at 90). Such speculation is insufficient to support an inference that Plaintiff was required to take an additional one month rotation on account of her race. Finally, Plaintiff's dismissal from the OSU COM was the culmination of a series of deficiencies, not a failure to take only a single examination.
In sum, the Plaintiff fails to come forward with any evidence to support the claim that her dismissal from the OSU COM was arbitrary or capricious or made in bad faith, so as to implicate a substantive due process violation. In fact, the evidence indicates quite the contrary. Plaintiff was afforded nearly ten years to complete what would otherwise be a four year degree program. The evidence clearly demonstrates that Plaintiff's dismissal was purely for academic reasons.
4. Plaintiff's Procedural Due Process Claim
Plaintiff also claims that the OSU COM failed to accord her due process as guaranteed by the Fourteenth Amendment.
"The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property." Board of Regents v. Roth, 408 U.S. 564, 569 (1972). In order to determine whether Plaintiff was deprived of procedural due process, the Court must first determine whether the decision to dismiss Plaintiff implicated a liberty or property interest. The Constitution does not create property interests. Rather, such interests arise from an independent source, such as a state law which creates a claim of entitlement. Id. at 577. As this Court has previously held, Plaintiff has no entitlement to continued education in the OSU COM. (See Opinion and Order, Oct. 17, 2000 at 9). Plaintiff claims, however, that she has been deprived of a liberty interest in pursuing a career in medicine.
In Board of Curators, Univ. of Mo. v. Horowitz, 435 U.S. 78 (1978), the Supreme Court considered a similar argument. In that case, a medical student was dismissed after failing to meet academic standards. The Court found it unnecessary to determine whether Plaintiff therein had a protected liberty interest in pursuing a medical career because the facts demonstrated that Plaintiff had been afforded all the process that was required by the Fourteenth Amendment. The Court held that academic dismissals require a lesser degree of procedural safeguards than do dismissals for disciplinary reasons. Id. at 89-90. Indeed, as the Eighth Circuit has held, and as this Court has applied, a dismissal for academic reasons "comports with the requirements of due process if the student had prior notice of faculty dissatisfaction with his or her performance, and if the decision to dismiss the student was careful and deliberate." Schuler v. Univ. qf Minnesota, 788 F.2d 510, 514 (8th Cir. 1986); Jenkins v. Hutton, 967 F. Supp. 277, 282 (S.D. Ohio 1997) (Spiegel, J.).
In the case at bar, the evidence clearly indicates that, irrespective of whether Plaintiff has a liberty interest in the pursuit of a medical career, she was afforded all the process that was due to her. In particular, Plaintiff was notified on several occasions of the faculty's dissatisfaction of her performance. Although Plaintiff was afforded opportunities to redeem her academic performance, she failed to do so.
The record demonstrates that Plaintiff lodged numerous appeals of the various academic decisions made during her nearly ten years at the OSU COM. When Plaintiff was readmitted to the OSU COM on May 28, 1996, she was notified that the admittance was subject to four conditions:
1. You must meet the current cognitive and non-cognitive standards of the College of Medicine, including passage of Step I and Step 2 of the USMLE;
2. You must meet all curricular requirements established by the Clinical Academic Standing Committee; 3. You will be granted an exemption from the College's Six Year Rule until 7/31/97; 4. You must meet all the above requirements by July 31, 1997 or be subject to final dismissal from the College of Medicine.
Exhibit GG attached to Plaintiff's Depo.
On September 9, 1996, Dr. McIllroy, Med III/IV Director, notified Plaintiff that the Clinical Academic Standing Committee had met on August 29, 1996 to determine Plaintiff's clinical academic requirements to graduate. The Committee determined that Plaintiff would be required to complete one month of inpatient Internal Medicine at the Ohio State University Medical Center and that during the month Plaintiff was required to take and pass both the OSCE and the final clerkship examination. (Exhibit II, Id.). Plaintiff was notified of the months during which the exams would be offered and was directed to complete the requirement by June 30, 1997. Plaintiff testified on deposition that she did not do the one month rotation, nor did she sit for the OSCE and final exam. (Plaintiff's Depo. at 86).
On October 24, 1997, the Clinical Academic Standing Committee met to review a recommendation by the Student Review Subcommittee that Plaintiff be dismissed from the OSU COM for failure to comply with the conditions of reinstatement. (Exhibit JJ, Id.). Plaintiff was present at the meeting and was heard. The Clinical Academic Standing Committee recommended that Plaintiff be dismissed for "failure to complete the requirements for graduation as established upon your reinstatement;" to wit: passage of the USMLE, part 1; completion of one month of Internal Medicine rotation together with the OSCE and final examination. (Id.). Plaintiff was notified that the recommendation for dismissal would be forwarded to the Academic Review Board. (Id.). Plaintiff acknowledged on deposition that she did not pass the USMLE, part 1 nor did she complete the Internal Medicine rotation or sit for the OSCE and final exams. (Plaintiff's Depo. at 87).
Plaintiff attended a meeting of the Academic Review Board on December 12, 1997. (Exhibit KK, Id.). On December 15, 1997, the Board concluded that the Med III/IV Student Review Subcommittee and the Clinical Academic Standing Committee "had access to all necessary information for their reviews and.., their meetings were conducted in accordance with the policies and procedures set forth by the College of Medicine and Public Health." (Exhibit LL, Id.). The Board further stated that the recommendations of these entities would be forwarded to the Dean. (Id.). On December 24, 1997, Dean Healy notified Plaintiff that she was dismissed from the OSU COM and that she was not eligible for future reinstatement. (Exhibit MM, Id.).
The Court concludes that the foregoing comports with any procedural due process guarantee to which Plaintiff was entitled. The record clearly demonstrates that the decision to dismiss Plaintiff was given careful and deliberate consideration. Thus, the Defendants are entitled to summary judgment on Plaintiff's procedural due process claim.
5. Plaintiffs Equal Protection Claims
Plaintiff claims, in rather conclusory fashion, that her dismissal is in violation of the equal protection guarantee of the Fourteenth Amendment. In order to succeed on this claim, Plaintiff must show that she was treated differently than other non-African American or male students. Gallagher v. Pontiac School Dist., 807 F.2d 75, 79 (6th Cir. 1986). Plaintiff fails to come forward with any evidence in this regard. As noted above, the only allegation Plaintiff makes with respect to race is her speculation that a Caucasian student who missed a clinical rotation final exam was permitted to simply retake the exam. Plaintiff cannot, however, identify any particulars with respect to the claim. In addition, Plaintiff makes no allegation whatsoever that she was treated differently than similarly situated male students. In view of the lack of evidence on these claims, the Court finds that summary judgment is warranted.
6. Plaintiffs § 1981 Claim
Plaintiff claims that she was discriminated against on account of her race in violation of 42 U.S.C. § 1981. This statute 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, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.42 U.S.C. § 1981.
In order to state a claim under this section, the Plaintiff must allege that she is a member of a racial minority; that the Defendants intended to discriminate against her on account of her race; and that the discrimination concerned one of the activities enumerated in the statute. Dove v. Fordham University, 56 F. Supp.2d 330, 337 (S.D.N.Y. 1999).
To the extent Plaintiff's claim is based upon circumstantial evidence of discrimination, the burden-shifting test employed in § 1981 cases involving claims in the employment context, also applies to the case at bar. See Granberty v. Baptist Memorial Hospital, No. 97-5543, 97-6153, 1998 WL 279377 (6th Cir. May 20, 1998); Gant v. Wallingford Board of Educ., 195 F.3d 134 (2nd Cir. 1999) (holding that the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981) applies to all § 1981 claims alleging discriminatory motive). Thus, Plaintiff must come forward with evidence that she is a member of a protected class; that she suffered adverse action; that she was qualified; and that she was treated differently than other similarly-situated individuals. If Plaintiff succeeds in such proof, the Defendant may then articulate a legitimate, non-discriminatory reason for its action. Then burden then shifts to the Plaintiff to prove, by a preponderance of the evidence, that Defendant's reason was not the true reason for the action, but was merely a pretext for discrimination.
In this case, Plaintiff has come forward with no direct evidence to support a claim that the Defendants purposefully discriminated against her on account of her race. In addition, while Plaintiff satisfies the first two elements of a prima facie case using circumstantial proof i.e., she is African-American and she suffered an adverse action, the evidence fails to support the third and fourth elements — that she was qualified to continue in the OSU COM and that she was treated differently than other similarly situated individuals. The evidence clearly shows that due to her poor academic performance, Plaintiff was not qualified to continue at the OSU COM. In addition, Plaintiff offers no evidence, other than mere speculation, that she was treated differently than other similarly situated medical students. Thus, the Plaintiff's § 1981 claim must fail. Even if Plaintiff had met her burden, as this Court has concluded, the uncontroverted evidence establishes that Plaintiff was dismissed for purely academic reasons.
In the absence of evidence to support a claim under § 1981, the Court concludes that summary judgment is appropriate. See Haider v. Michigan Technological University, No. 95-2026, 1996 WL 341166 (6th Cir. June 19, 1996).
IV.
In light of the foregoing, the Defendants' Motion for Summary Judgment (Doc. #62) is GRANTED. This action is hereby DISMISSED. The Clerk is DIRECTED to enter Judgment accordingly.
IT IS SO ORDERED.