Saqr v. University Of Cincinnati

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

AHMAD SAQR,

Plaintiff,

Case No. 1:18-cv-542

v. JUDGE DOUGLAS R. COLE

UNIVERSITY OF CINCINNATI, et

al.,

Defendants.

OPINION AND ORDER

This cause is before the Court on Defendants University of Cincinnati and

University of Cincinnati College of Medicine’s (together “UC”) Motion for Summary

Judgment (Doc. 65). For the reasons that follow, the Court GRANTS UC’s Motion

and DISMISSES Ahmad Saqr’s claim for discrimination on the basis of race, color,

or national origin, the sole remaining claim in this action, WITH PREJUDICE.

BACKGROUND1

Ahmad Saqr, an Egyptian Muslim, began his time as a medical student at UC

in August 2010. (Saqr Dep., Doc. 60, #465). Saqr struggled during his first semester,

receiving failing grades in two courses and a low grade in a third. (1/7/11 Warning,

Saqr Dep. Ex. 2, Doc. 60-2, #595). As a result, Saqr received an Academic Warning

1 Many of the claims in Saqr’s Complaint (Doc. 1) in this action have already been dismissed

pursuant to the Court’s September 8, 2020, Opinion and Order (Doc. 50). In what follows, the

Court summarizes only the factual background relevant to Saqr’s sole remaining claim in

this action for race, color, or national origin discrimination under Title VI of the Civil Rights

Act. See id.

on January 7, 2011. That Warning informed him that he would have to both pass all

remaining classes during the spring term and successfully redo the two courses he

had failed by the summer in order to avoid dismissal from UC. (Id. at #596). Instead,

Saqr requested a leave of absence on March 3, 2011. (Saqr Dep., Doc. 60, #466;

03/03/11 Letter, Saqr Dep. Ex. 4, Doc. 60-4, #598). The Year One Promotions Board

(“Promotions Board”) granted Saqr’s request and set his return date for August 2012.

(3/26/12 Promotions Bd. Letter, Saqr Dep. Ex. 7, Doc. 60-7, #609). On March 26, 2012,

and again on May 23, 2012, the Promotions Board advised Saqr that one more failing

grade would be grounds for dismissal, as would failure to complete all basic science

coursework within three years. (Id.; 5/23/12 Promotions Bd. Letter, Saqr Dep. Ex. 8,

Doc. 60-8, #610).

During the 2012–2013 academic year, Saqr passed all of his first-year courses,

including repeated courses. (Saqr Dep., Doc. 60, #469). Saqr then also passed all of

his second-year courses during the 2013–2014 academic year. (Id. at #471). Saqr

requested a second leave of absence to prepare for the “Step 1” exam, an exam

administered by the United States Medical Licensing Examination and required at

UC to begin the third-year medical curriculum. (Id. at #473). Despite again receiving

his requested leave of absence, Saqr failed the Step 1 exam on August 9, 2014.

(5/22/14 Promotions Bd. Letter, Saqr Dep. Ex. 16, Doc. 60-16, #891; Saqr Dep., Doc.

60, #472).

After failing the Step 1 exam, Saqr requested a third leave of absence during

academic year 2014–2015 to study to retake it. (Saqr Dep., Doc. 60, #477). This time,

it was the Performance and Advancement Committee (“PAC”) that granted that

request. (10/15/14 PAC Letter, Saqr Dep. Ex. 22, Doc. 60-22, #903). On his second try,

Saqr passed the Step 1 Exam on April 15, 2015. (Saqr Dep., Doc. 60, #478).

During their third year of study, UC medical students are required to take a

number of “clerkships” in various medical practices. Clerkships have both a clinical

component and a “shelf exam” component, with the latter administered by the

National Board of Medical Examiners. Saqr began his third year of study at UC (now

the 2015–2016 academic year) by enrolling in two such clerkships, Pediatrics and

Obstetrics/Gynecology. (Id. at #480). Saqr passed the clinical portion of both

clerkships, but failed the shelf exam portion of each. (11/2/15 PAC Letter, Saqr Dep.

Ex. 27, Doc. 60-27, #910). Under the applicable Advancement and Retention Policy,

the failure of these two shelf exams, combined with the fact that Saqr had on his first

attempt failed two first-year courses and the Step 1 exam, was grounds for dismissal

from UC. (Med. Student Handbook 2015–2016, Saqr Dep. Ex. 28, #917).

The PAC met to discuss Saqr’s situation and determined that it would give

him another chance: Saqr was to retake the shelf examinations for both Pediatrics

and Obstetrics/Gynecology on makeup testing dates in either December 2015 or June

2016. (11/2/15 PAC Letter, Saqr Dep. Ex. 27, Doc. 60-27, #910). This time, Saqr did

not take a leave of absence to prepare to retake his exams, but continued in his third-

year curriculum coursework, including a clerkship in Internal Medicine with a

scheduled shelf exam date of December 18, 2015. (12/8/15 Malosh Email, Saqr Dep.

Ex. 32, #1013). Shortly before that scheduled exam date, Saqr petitioned for a fourth

leave of absence, which was granted on the condition that Saqr repeat the entire

Internal Medicine clerkship (and not merely take the shelf exam) when he returned.

(12/11/15 PAC Letter, Saqr Dep. Ex. 34, Doc. 60-34, #1016). Saqr availed himself of

this option and took a fourth leave of absence from UC. (12/14/15 Saqr Email, Saqr

Dep. Ex. 35, Doc. 60-35, #1017).

Saqr returned from his fourth leave of absence during the spring semester of

2016. In that semester, Saqr took a third core clerkship, the Psychiatry clerkship, in

addition to continuing to study to retake the Pediatrics and OB/GYN shelf exams.

(Saqr Dep., Doc. 60, #493). Accordingly, Saqr would take a total of three shelf exams

in June 2016 (Pediatrics, Obstetrics/Gynecology, and Psychiatry). On June 23, 2016,

Saqr failed the Obstetrics/Gynecology shelf exam for the second time. (Dismissal

Letter, Saqr Dep. Ex. 46, Doc. 60-46, #1037).

On June 29, 2016, the PAC recommended that Saqr be dismissed from UC.

(Id.). Saqr appealed that determination to UC’s Grievance Committee. (8/4/2016

Grievance Comm. Letter, Saqr Dep. Ex. 53, Doc. 60-53, #1046). The Grievance

Committee declined to overturn the PAC’s decision. (Id.). The Dean of UC’s College

of Medicine approved the recommendations of the PAC and Grievance Committee

(which was also called the Appeal Board) and dismissed Saqr from UC effective

August 9, 2016. (8/9/16 Dean Letter, Saqr Dep. Ex. 54, Doc. 60-54, #1048).

Ahmad Saqr, along with his brother Omar, all of whose claims have already

been dismissed from this action in the Court’s September 8, 2020, Opinion and Order

(Doc. 50), filed the Complaint (Doc. 1) in this action on August 3, 2018. Along with

other claims not now before the Court, Saqr alleged that UC discriminated against

him on the basis of his race and national origin in violation of Title VI of the Civil

Rights Act. (Id. at #10–11). UC moved for summary judgment (Doc. 65) on November

30, 2020. UC argues that Saqr has not produced evidence sufficient to create a

genuine dispute as to whether UC dismissed Saqr because of his race or national

origin rather than because of Saqr’s poor academic performance. (Id. at #2415–18).

Saqr responded in opposition (Doc. 68) on December 21, 2020, and UC replied (Doc.

70) on January 8, 2021. The matter is now fully briefed and before the Court.

LEGAL STANDARD

Summary judgment is proper “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). The burden is on the moving party to conclusively show

that no genuine issue of material fact exists. Lansing Dairy, Inc. v. Espy, 39 F.3d

1339, 1347 (6th Cir. 1994). Once the movant presents evidence to meet its burden,

the nonmoving party may not rest on its pleadings, but must come forward with

significant probative evidence to support its claim. Celotex Corp. v. Catrett, 477 U.S.

317, 324 (1986); Lansing Dairy, 39 F.3d at 1347.

This Court is not obliged to search the record sua sponte for genuine issues of

material fact. Betkerur v. Aultman Hosp. Ass’n, 78 F.3d 1079, 1087 (6th Cir. 1996);

Guarino v. Brookfield Twp. Trs., 980 F.2d 399, 404–06 (6th Cir. 1992). Instead, the

nonmoving party must “designate specific facts or evidence in dispute.” Jordan v.

Kohl’s Dep’t Stores, Inc., 490 F. App’x 738, 741 (6th Cir. 2012) (quotation omitted). If

the nonmoving party fails to make the necessary showing for an element upon which

it bears the burden of proof, then the moving party is entitled to summary judgment.

Celotex Corp., 477 U.S. at 323.

Granting summary judgment depends upon “whether the evidence presents a

sufficient disagreement to require submission to a jury or whether it is so one-sided

that one party must prevail as a matter of law.” Amway Distribs. Benefits Ass’n v.

Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 251–52 (1986)). In sum, the nonmoving party, at this stage,

must present some “sufficient disagreement” that would necessitate submission to a

jury. See Moore v. Phillip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993) (quoting

Anderson, 477 U.S. at 251–52). In making that determination, though, the Court

must view the evidence in the light most favorable to the nonmoving party. See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Cox v.

Ky. Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (“In arriving at a resolution, the

court must afford all reasonable inferences, and construe the evidence in the light

most favorable to the nonmoving party.”).

LAW AND ANALYSIS

The operative provision of Title VI of the Civil Rights Act of 1964, codified at

42 U.S.C. § 2000d, states as follows: “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.” Here, there is no dispute that UC receives

federal financial assistance. (Mot. for Summ. J. (“Mot.”), Doc. 65, #2412). Nor can

anyone dispute that Saqr’s dismissal from UC’s medical program excluded him from

further participation therein.2 But UC contends that the undisputed evidence shows

that it dismissed Saqr for poor performance, rather than on account of discrimination.

Accordingly, Saqr’s claims should survive summary judgment if (and only if) he can

point to evidence sufficient to create a genuine dispute as to whether UC dismissed

him “on the ground of race, color, or national origin.”

Title VI prohibits only intentional discrimination. Alexander v. Sandoval, 532

U.S. 275, 280–81 (2001). Evidence of intentional discrimination may be direct or

indirect. Direct evidence of a discriminatory motive might take the form, for example,

of a decisionmaker’s explicit statement that she took a particular action because of

an individual’s national origin. Paasewe v. Ohio Arts Council, 74 F. App’x 505, 507

(6th Cir. 2003) (citing Smith v. Chrysler Corp., 155 F.3d 799, 805 (6th Cir. 1998)). As

for indirect evidence, while there is some uncertainty about the exact test, courts in

this circuit and district have most often borrowed the burden-shifting framework first

articulated by the Supreme Court for the Title VII employment discrimination

2 This case is about Saqr’s dismissal from UC. True, Saqr also alleges that, while enrolled at

UC, he “did not receive the same level of support of other students in Defendant’s program.”

(Compl., Doc. 1, ¶ 96). But, as discussed in more detail below, Saqr has failed to point the

Court to any action by UC other than eventually dismissing Saqr that might qualify as

exclusion from participation, denial of benefits, or discrimination. See 42 U.S.C. § 2000d; see

also Jordan, 490 F. App’x at 741 (nonmoving party must designate specific facts or evidence

in dispute). Accordingly, the Court need not, and does not, decide whether the statute of

limitations would bar any claims by Saqr based on actions by UC other than UC’s final

dismissal of Saqr, because Saqr has not met his burden on summary judgment to point the

Court to any such actions. (See Mot., Doc. 65, #2413). Naturally, the Court may, and does,

consider record evidence regarding events that occurred before Saqr’s dismissal was finalized

in order to determine whether that dismissal itself may have violated Title VI.

context in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See Johnson

v. City of Clarksville, 186 F. App’x 592, 595 (6th Cir. 2006) (assuming without

deciding that the McDonnell Douglas framework applies); Paasewe, 74 F. App’x at

507 (applying the McDonnell Douglas framework); Amadasu v. Donovan, No. 1:10-

CV-210, 2006 WL 1401648, at *7 (S.D. Ohio May 18, 2006) (same).

Under the McDonnell Douglas burden-shifting framework, as adapted by the

Sixth Circuit to fit the Title VI context, a plaintiff bears the initial burden of showing

that: “(1) [he] is a member of a protected class, (2) [he] suffered an adverse action at

the hands of the defendants in the pursuit of [his] education, (3) [he] was qualified to

continue in [his] pursuit of [his] education; and (4) [he] was treated differently from

similarly situated students who are not members of the protected class.” Bell v. Ohio

State Univ., 351 F.3d 240, 253 (6th Cir. 2003) (citing Mitchell v. Toledo Hosp., 964

F.2d 577, 582 (6th Cir. 1992)). If a plaintiff can establish the prima facie case, then

the burden shifts to the defendant to identify a legitimate, non-discriminatory reason

for the adverse action. See McDonnell Douglas, 411 U.S. at 802. If the defendant does

so, then the burden shifts back to the plaintiff to show that the defendant’s stated

non-discriminatory reason for the adverse action was pretextual. Texas Dep’t of Cmty.

Affairs v. Burdine, 450 U.S. 248, 256 (1981). “[A] plaintiff can show pretext in three

interrelated ways: (1) that the proffered reasons had no basis in fact, (2) that the

proffered reasons did not actually motivate the [defendant’s] action, or (3) that they

were insufficient to motivate the [defendant’s] action.” Chen v. Dow Chem. Co., 580

F.3d 394, 400 (6th Cir. 2009).

In this case, the parties have also briefed the issue under an alternative legal

standard, namely that established by the Supreme Court’s decision in Village of

Arlington Heights v. Metro Housing Development Corporation, 429 U.S. 252 (1977).

(See Resp. in Opp’n to Mot. for Summ. J. (“Opp’n”), Doc. 68, #2874; Reply in Supp. of

Mot. for Summ. J. (“Reply”), Doc. 70, #2897). While Arlington Heights itself is a

constitutional case about zoning arising under the Equal Protection Clause, its

application in the Title VI context would not appear wholly unwarranted given the

parallelism in legal standards for claims of discrimination in education under the

Equal Protection Clause and Title VI. See Grutter v. Bollinger, 539 U.S. 306, 343–44

(2003) (citation omitted). And indeed, the Arlington Heights standard shares some

similarities with the McDonnell Douglas framework. Specifically, courts analyzing a

claim of discrimination under Arlington Heights consider factors including the

historical background of a decision (especially if it reveals a pattern of unfavorable

treatment of members of the group in question), the sequence of events leading up to

the decision (especially if that sequence departs from normal procedures), departures

from established substantive standards for a decision (especially where those

standards would have led to a different outcome), and any statements that might

shed light on the intent of members of the decisionmaking body. See Coal. for

Advancement of Reg’l Transp. v. Fed. Highway Admin., 576 F. App’x 477, 493–94 (6th

Cir. 2014) (citing Arlington Heights, 429 U.S. at 266–68). Much as with the

McDonnell Douglas framework, where a plaintiff presents some evidence of a

discriminatory motive, the burden then shifts to the defendant to show that the same

decision would have resulted even in the absence of such a motive. Arlington Heights,

429 U.S. at 271 n.21.

Here, Saqr presents no direct evidence of discrimination. That is, Saqr does

not argue that UC engaged in any explicit classifications based on race or nationality

that led to his dismissal, nor does he cite any statements by decisionmakers at UC

that even refer to his race or nationality, much less indicate that it was a reason for

his dismissal from UC. See Paasewe, 74 F. App’x at 507. Accordingly, Saqr must rely

on indirect evidence, which the parties have argued alternatively under both the

McDonnell Douglas and the Arlington Heights frameworks discussed above.

However, the Court need not decide which of these frameworks applies, because Saqr

has presented insufficient evidence to create a genuine dispute of material fact under

either standard.

Under the McDonnell Douglas burden-shifting framework, Saqr first fails to

create a genuine dispute as to whether he was qualified to remain in his degree

program.3 See Bell v. Ohio State Univ., No. 2:98-CV-1274, 2002 WL 193694, at *40

3 In summary judgment cases such as this one, there is some tension between the McDonnell

Douglas notion of “burden-shifting,” which implies that the initial evidentiary burden is on

the plaintiff, and the summary judgment standard, which instead requires the moving party

(here, the Defendants) to demonstrate the absence of a genuine dispute of material fact. See

Burress v. Spring Grove Cemetery & Arboretum, Case No. 1:18-cv-879, 2020 WL 3036047, at

*8 (S.D. Ohio June 5, 2020). But that tension is no more intractable than in any other context

in which the non-moving party has the ultimate burden of proof on an element of its claim.

See, e.g., Davis v. McCourt, 226 F.3d 506, 511 (6th Cir. 2000) (“The test [on summary

judgment] is ‘whether the party bearing the burden of proof has presented a jury question as

to each element in the case.’” (quoting Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996))).

Accordingly, applying the McDonnell Douglas framework on summary judgment requires the

Court to proceed through the stages of that framework and ask whether the party that would

bear the burden at trial has produced evidence sufficient to create a genuine dispute at the

stage in question. See Burress, 2020 WL 3036047, at *8 (quoting Macy v. Hopkins Cnty. Sch.

(S.D. Ohio Feb. 5, 2002), aff’d Bell, 351 F.3d 240 (poor academic performance showed

lack of qualification to continue in program). As the factual exposition above amply

demonstrates, despite second, third, and fourth chances, Saqr repeatedly and

consistently failed to fulfill the minimum requirements of UC’s medical program.

When Saqr failed the two shelf exams—national examinations whose content is not

determined by UC—after having already failed two required first-year exams and the

Step 1 exam, that was grounds for dismissal under UC’s Advancement and Retention

Policy. (Med. Student Handbook 2015–2016, Saqr Dep. Ex. 28, Doc. 60-28, #917).

Instead of dismissing him, though, the PAC gave Saqr one last chance to retake the

two shelf exams. Only when Saqr failed the Obstetrics/Gynecology exam for a second

time did the PAC decide to dismiss him from UC. The Court intends no disrespect to

Saqr’s efforts or to whatever circumstances may help account for his poor academic

performance. But on this record, there is no genuine dispute that Saqr was not

qualified to continue in UC’s medical program when UC dismissed him from it.

Saqr does not seriously attempt to rebut this objective evidence of lack of

qualification to remain in the UC medical program based on poor academic

performance. Instead, Saqr argues that, because he alleges that UC failed to support

minority students including himself, the Court must presume that, but for such

failure, Saqr would not have had poor academic performance. (Opp’n, Doc. 68, #2871).

This audacious chain of inferences lacks factual or legal support. See Gregg v. Ohio

Dep’t of Youth Servs., 661 F. Supp. 2d 842, 859 (S.D. Ohio 2009) (declining to “stack

Bd. of Educ., 484 F.3d 357, 364 (6th Cir. 2007), abrogated on other grounds by Lewis v.

Humboldt Acquisition Corp., 681 F.3d 312 (6th Cir. 2012)).

inference upon inference to preserve an issue for the jury”). Factually, Saqr points

the Court to no specific failure to support him on UC’s part, much less to any evidence

that, but for such failure, Saqr would have succeeded in medical school. On the

contrary, in response to his repeated requests for additional support, Saqr received

individualized consideration and accommodations including leaves of absence, which

UC granted without exception until his final dismissal. Moreover, as UC notes, Saqr

cannot point the Court to any instance prior to his dismissal from UC in which Saqr

notified UC of any failure to provide Saqr with academic support or resources. (Mot.,

Doc. 65, #2414 n.8 (citing Mahdy v. Mason City Sch. Dist., Case No. 1:16-cv-845, 2018

WL 1327211, at *7 (S.D. Ohio Mar. 15, 2018) (to establish requisite intent, student

must have notified school official of allegedly discriminatory failure to provide

support))). Accordingly, Saqr’s suggestion that he would have performed differently

had UC not failed to support him in some unspecified way is baseless.

Equally importantly, there is no legal basis for Saqr’s proposed counterfactual

method of satisfying the third prong of the McDonnell Douglas framework. Saqr cites

the proposition that it is “inappropriate for the district court in the pre-trial stage to

rely on the nondiscriminatory reason for termination to find plaintiff’s prima facie

case inadequate,” but instead “a court must examine plaintiff’s evidence independent

of the nondiscriminatory reason … for terminating the plaintiff.” Cline v. Catholic

Diocese of Toledo, 206 F.3d 651, 660–61 (6th Cir. 2000). This principle serves to avoid

confusion between the different stages of the burden-shifting framework by

counseling the district court to defer consideration of the defendant’s stated rationale

for the adverse action when evaluating the prima facie case. See id. Hence, in

determining whether a plaintiff was qualified, a court should not consider the

defendant’s own representation that it terminated the plaintiff because of the

plaintiff’s lack of qualification. But that does not mean that the court must assume

that the plaintiff was qualified (or, as Saqr would have it here, would have been

qualified but for the defendant’s discrimination). Besides being counterintuitive, such

a requirement would all but eviscerate the qualification prong of the McDonnell

Douglas framework. Instead, a court must evaluate the “plaintiff’s evidence,” without

regard for the defendant’s stated rationale of lack of qualification, to determine

whether there is a genuine dispute as to whether the plaintiff was in fact qualified to

continue in the program. See Cline, 206 F.3d at 661. And so the Court does here.

Because the only conclusion consistent with the summary judgment record is that

Saqr was not qualified to continue in his program, he has not met his burden to

establish this required element of the McDonnell Douglas prima facie case.

Saqr argues that the Court should conclude that he was qualified to continue

at UC (or at least that there is a genuine dispute as to this element) because of

positive statements about him in the record by UC faculty members. For example,

Dr. Ashley Jenkins, then Internal Medicine and Pediatrics Chief Resident at UC,

wrote a letter to the PAC expressing that Saqr “was an enthusiastic learner” whose

“strengths include his communication skills and ability to connect with patients and

their families.” (Opp’n, Doc. 68, #2872 (citing Jenkins Letter, Malosh Dep. Ex. 8, Doc.

62-8, #1601)). Dr. Goodlander, who identified herself as the preceptor for Saqr’s

outpatient pediatric rotation, stated that Saqr’s “integrity, compassion,

professionalism, and interest in learning are above reproach” and that she “would

highly recommend him for any medically related endeavors based on my month of

clerkship.” (Id. (citing Goodlander Letter, Malosh Dep. Ex. 10, Doc. 62-10, #1604)).

Notably, though, although these were letters sent to the PAC in connection with

Saqr’s pending dismissal, neither letter stated that Saqr should not be dismissed from

UC. That being said, Dr. Marc Rothenberg, a faculty member in whose lab Saqr

worked during his first year of medical school, did write a letter to the PAC explicitly

“to appeal the dismissal of Ahmad Saqr,” stating “I urge you to maintain him in the

medical school” and recounting Saqr’s “helpfulness” to Rothenberg’s division.

(Rothenberg Letter, Malosh Dep. Ex. 11, Doc. 62-11, #1607–09).

In support of its motion, UC argues that the Court should not consider these

unsworn, unauthenticated letters at the summary judgment stage. The Court agrees.

See Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (“[U]nauthenticated

documents do not meet the requirements of Rule 56(e).”) (citations omitted). But even

if the Court were to consider these letters to the PAC, they would not create a genuine

dispute as to whether Saqr was qualified to continue in his program. None of the

letters even asserts that Saqr was qualified to remain at UC, much less explains how

that conclusion could be consistent with his repeated failures of examinations

required of all students to an extent that warranted dismissal under UC’s own

Advancement and Retention Policy. To infer from these letters that Saqr was

qualified to continue his studies at UC, the Court would have to assume that medical

school requires only the positive personal characteristics to which their authors

refer—and that it does not also require satisfaction of objective academic criteria after

any number of attempts. Because that is not a reasonable assumption, Saqr has not

created a genuine dispute as to whether he was qualified to remain at UC. See Cox,

53 F.3d at 150 (court affords reasonable inferences to nonmoving party).

True, the Rothenberg Letter could perhaps support a reasonable inference that

Rothenberg believed Saqr to be qualified to remain in UC’s medical program. But

even so, that subjective (and largely unexplained) belief on the part of a single faculty

member would not be enough to create a genuine dispute where so much objective

evidence of Saqr’s poor academic performance points in the opposite direction. See

Amway, 323 F.3d at 390 (grant of summary judgment appropriate where evidence “so

one-sided that one party must prevail as a matter of law”). Especially in light of this

Court’s obligation to afford UC “the widest range of discretion in making judgments

as to the academic performance of students and their entitlement to promotion or

graduation,” a single faculty member’s more or less unexplained contrary opinion,

however sincerely held, would not on its own create a genuine dispute as to Saqr’s

qualification to remain at UC. See Regents of Univ. of Mich. v. Ewing, 474 U.S. 214,

225 n.11 (1985) (citation omitted).

Finally, Saqr argues that because UC admitted Saqr to its medical program, it

must have determined that he was qualified to complete the program. (Opp’n, Doc.

68, #2872). Again, to grant Saqr the benefit of such an inference as a matter of law

would have the sweeping consequence that any student, once admitted, would always

remain qualified, thus effectively rendering the third prong of the McDonnell Douglas

framework a dead letter. But Saqr cites, and the Court finds, no legal support for

such an argument. Instead, the Court agrees with UC that it is eminently sensible to

distinguish between an applicant’s qualifications to be accepted into an academic

program and a current student’s qualifications to continue in the program after having

completed some but not all of it. (Reply, Doc. 70, #2891–92). UC does not argue, nor

need it, that it made a mistake in assessing Saqr’s qualifications to enroll in the

medical program when it admitted Saqr. Instead, UC argues that Saqr’s poor

academic performance in the course of his studies, which necessarily occurred after

his admission to UC, eventually rendered Saqr unqualified to continue in the pursuit

of those studies. Because poor academic performance can make a student unqualified

to continue in a degree program, the Court concludes that Saqr’s initial admission to

UC’s medical program does not, in itself, establish that he was also qualified to

continue in the third year of that program after failing so many required

examinations over the course of a total of six academic years. See Bell, 2002 WL

193694, at *40.

To be sure, nothing in Title VI affirmatively requires institutions to maintain

only qualified students in their degree programs. Thus, on this record, it may be that

UC could justifiably have declined to dismiss Saqr, and instead given him even more

chances to successfully complete his studies. But that is not the question before the

Court. Instead, the question is whether Title VI forbade UC from dismissing Saqr as

a student. Because there is no genuine dispute that, at the time of his dismissal,

Saqr’s poor academic performance showed that he was not qualified to continue in

the program, Saqr’s claim fails under the McDonnell Douglas framework.

Under the same framework, Saqr’s claim fails for the separate reason that he

has not identified similarly-situated individuals who are not members of his protected

class and who were treated differently by UC.4 Saqr argues that two students, whom

he identifies as C1 and A1 and says are white, are both similarly-situated

comparators who were not dismissed from UC and eventually graduated.5 (Opp’n,

Doc. 68, #2873–74). Saqr says that, like himself, C1 failed the Step 1 exam and took

a leave of absence to study, but, unlike Saqr, C1 also failed the Step 1 exam a second

time and required a third attempt to pass. (Id. at #2873). Likewise, Saqr says that

A1 failed two classes in his first year, withdrew, and passed all first- and second-year

classes upon his return, but then failed the Step 1 exam. (Id. at #2873–74).

Saqr’s evidence does not show that similarly-situated white students were

treated differently from Saqr. If anything, Saqr’s evidence suggests that Saqr was

treated similarly to C1 and A1 for as long as his academic situation resembled theirs.

Saqr relies on the fact that C1 and A1 each failed either a first-year course or the

Step 1 exam, but elides the fact that Saqr himself also was not dismissed from UC

4 At this point, it is appropriate to note some indeterminacy in the bounds of that protected

class. Saqr identifies himself as Egyptian, Muslim (albeit this is a religion, not a race, color,

or national origin), and a “minority” student more generally, while UC also suggests that

Saqr is “African-American.” (See Compl., Doc. 1, ¶¶ 1, 24, #2, 4; Mot., Doc. 65, #2415). For

the sake of argument, the Court assumes that the allegedly similarly-situated comparator

students are not members of any protected group recognized by Title VI to which Saqr may

belong.

5 The Court refers to the purported comparator students by these designations as the parties

do.

after failing two first-year courses and the Step 1 exam on the first try. Instead, Saqr

received opportunities to redo those requirements, just like C1 and A1 did. It was

only after Saqr also failed the shelf exams for two required third-year clerkships, and

failed one such exam a second time, that UC finally dismissed Saqr from its medical

program. Saqr does not suggest or present evidence that C1 or A1 failed a third- or

fourth-year requirement after being given opportunities to redo their first- and

second-year requirements, opportunities of which Saqr also availed himself.

Looked at another way, during his time at UC, Saqr failed examinations

required to pass medical school no fewer than six times: two first-year course

examinations, the Step 1 exam, the Pediatrics shelf exam, and the

Obstetrics/Gynecology shelf exam twice. By contrast, C1 failed the Step 1 exam twice,

and A1 failed two first-year courses and also failed the Step 1 exam once. Accordingly,

Saqr failed a required exam at least twice the number of times as either of the

purported comparator students. In the same vein, Saqr took four leaves of absence

before failing one of his shelf exams for the second time, whereas C1 and A1 each

needed only one or two leaves of absence to complete the requirements of UC’s

medical program.

From still another standpoint, Saqr’s repeated exam failures were explicitly

grounds for dismissal from UC under its Advancement and Retention Policy,

whereas, under the same policy, students are explicitly allowed to take the Step 1

exam a third time, as C1 did, if permitted to do so by the PAC. (See Med. Student

Handbook 2015–2016, Saqr Dep. Ex. 28, Doc. 60-28, #917, 920). Thus, Saqr has not

established that C1 and A1 are similarly-situated white students who were treated

differently from him. Again, if anything, C1 and A1 were treated similarly to Saqr to

the extent that their academic situations were similar. See Jackson v. VHS Detroit

Receiving Hosp., 814 F.3d 769, 777 (6th Cir. 2016) (noting that “more severe

treatment of more egregious circumstances” does not justify inference of

discriminatory motive) (citation omitted).

In sum, given the undisputed evidence regarding his repeated academic

failures, Saqr cannot create a genuine dispute as to whether he was qualified to

remain as a medical student at UC, nor can he point to evidence that creates a

genuine dispute as to whether he was treated differently from other similarly-

situated individuals who were not members of his protected class. Because Saqr

cannot meet his burden as to either of these elements under the McDonnell Douglas

framework, it follows a fortiori that he would not be able to meet the heightened

burden of showing that UC’s stated reason for dismissing him—namely his lack of

qualification to continue in the program—was in reality a pretext for discrimination

on the basis of race, color, or national origin. First, because Saqr was not qualified to

continue in his program, UC’s stated reason for dismissing him has a basis in fact.

See Chen, 580 F.3d at 400. Second, as discussed above, Saqr has not presented direct

evidence that any UC decisionmaker was in fact motivated by considerations other

than Saqr’s lack of qualification to continue at the medical school, nor has Saqr’s

indirect evidence created a genuine dispute as to whether he was treated differently

from similarly situated white medical students. Thus, Saqr cannot show that his lack

of qualification did not actually motivate, or was insufficient to motivate, UC’s

dismissal. See id. For these reasons, even if Saqr had established a McDonell Douglas

prima facie case, which he has not, he cannot meet the higher burden to show that

UC’s stated rationale for his dismissal, poor academic performance, was a pretext for

intentional discrimination on the basis of race, color, or national origin under Title

VI. See Burdine, 450 U.S. at 255 (requiring “new level of specificity” at pretext stage).

Assuming for purposes of the instant Motion that the factors discussed in

Arlington Heights could supply Saqr an alternate path to proving intentional

discrimination under Title VI, as the parties appear to do (see Reply, Doc. 70, #2897),

the Court nevertheless concludes that Saqr has not met his burden. As discussed

above, the Arlington Heights factors include any decisionmakers’ statements

indicative of their motives, any departures from established procedural or

substantive standards for a decision, and the institution’s prior history and sequence

of events leading to the decision. See Reg’l Transp., 576 F. App’x at 493–94. As before,

Saqr points to no statements by decisionmakers that even mention his race, color, or

national origin, much less refer to it as a reason for his dismissal from UC. Saqr also

cannot point to any departures from the established procedural and substantive

standards for his dismissal. Instead, Saqr received multiple opportunities to complete

the requirements of his program and was dismissed under circumstances that more

than warranted this outcome according to UC’s Advancement and Retention policy.

(Med. Student Handbook 2015–2016, Saqr Dep. Ex. 28, Doc. 60-28, #917). Moreover,

Saqr availed himself of the appeals process provided for in the student handbook. (Id.

at #927). Saqr has pointed the Court to no procedural or substantive irregularity in

connection with his dismissal, let alone irregularities sufficient to support an

inference to intentional discrimination on the basis of race, color, or national origin.

Nevertheless, Saqr argues that the “sequence of events” shows that UC

wanted to dismiss Saqr from the program because Saqr was scheduled to take three

shelf exams during a two-week period, an unusually burdensome exam schedule.

(Opp’n, Doc. 68, #2875). But this ignores the fact that it was Saqr himself who chose

this exam schedule after failing two of his shelf exams in October 2015. As UC points

out, Saqr could instead have chosen to take one or both of his repeated shelf exams

in Pediatrics and Obstetrics/Gynecology in December 2015. (Reply, Doc. 70, #2899–

2900). Had he done that, he would not have had to take three shelf exams during a

two-week period. So the timing of Saqr’s shelf exams is not evidence that UC had it

in for Saqr, much less that this was on account of Saqr’s race, color, or national origin.

If anything, the entire sequence of events leading to Saqr’s dismissal instead suggests

that UC was determined to give Saqr every reasonable opportunity to fulfill the

requirements of its medical program.

Saqr makes much of an isolated comment by UC Professor D.J. Lowrie, a PAC

member, in an email to the PAC. In that email, Lowrie states that the

recommendation for Saqr’s dismissal to be officially decided at the following meeting

would only be “a rubber stamp” after Saqr failed another shelf exam. (Lowrie Email,

Doc. 62-14, #1612). Saqr mischaracterizes Lowrie’s comment as suggesting that,

despite all the chances UC had given Saqr up to that point, Lowrie (and therefore

UC) somehow wanted Saqr to fail and “stacked the odds” to put him in a position

where he would do so. (Opp’n, Doc. 68, #2866, 2875). On the contrary, Lowrie’s

comment is perfectly innocent: Lowrie’s email states only that if Saqr failed again, as

the PAC was justifiably concerned that he might, then the discussion of whether to

dismiss him at the next meeting would be “a rubber stamp” because the PAC had

already considered what to do in that case at the “emergency meeting” whose

deliberations Lowrie was summarizing in the email in question. (Lowrie Email, Doc.

62-14, #1612). Lowrie’s email thus provides no support for Saqr’s theory that the PAC

somehow planned to ensure that Saqr fail an exam whose content was determined by

a national medical licensing board, much less that it did so out of discriminatory

animus on the basis of Saqr’s race or national origin. Instead, Lowrie’s email shows

that even in November 2015, after Saqr had at some point failed a total of five

separate examinations required to complete the medical degree program, the PAC

still desired to give Saqr “one more chance”—but only one more. (Lowrie Email, Doc.

62-14, #1612). If UC had desired to be rid of Saqr, it could have dismissed him then

and there instead under its Advancement and Retention Policy. (Med. Student

Handbook 2015–2016, Saqr Dep. Ex. 28, Doc. 60-28, #917).

Saqr also argues (without specifying which Arlington Heights factor he is

satisfying) that UC does not have academic support programs specifically for minority

students. But Saqr points the Court to no legal authority, and the Court finds none,

for the proposition that the absence of such racially-designated academic services

justifies an inference that the dismissal of a particular student constituted

intentional racial discrimination. Finally, Saqr argues that UC “admits” to having a

“long-standing history of institutional racism” because it has an “Anti-Racism Task

Force” whose mission statement says as much. (Opp’n, Doc. 68, #2876). But again,

what is missing from this record is any evidence that would tie any such generalized

history of racism to the specific decision to dismiss Ahmad Saqr from UC’s medical

school. That is a problem because, to prevail on his claim, Saqr ultimately must prove

(and thus at the summary judgment stage must create a genuine dispute) that UC

intentionally discriminated against him because of his race or national origin when

it dismissed him from its medical program. Sandoval, 538 U.S. at 280–81.

Furthermore, even if Saqr had produced some indirect evidence of

discriminatory motive under the Arlington Heights factors, which he has not, UC

would still have the opportunity to prove that it would have made the same decision

even absent consideration of Saqr’s race or national origin. See Arlington Heights, 429

U.S. at 271 n.21. Based on the undisputed evidence of Saqr’s repeated poor academic

performance, combined with the absence of any direct evidence of discrimination, the

Court considers that, even if Saqr had presented “some” indirect evidence of a

discriminatory motive under the Arlington Heights factors (which he has not), UC

would still be entitled to summary judgment on the alternative grounds that UC

would have dismissed Saqr even had it not considered Saqr’s race or national origin

(which, again, the Court sees no evidence that UC in fact did). See id.

Considered under whatever legal test, Saqr’s Title VI discrimination claim fails

on the merits. A reasonable jury could not conclude, on the basis of this record, that

UC dismissed Saqr because of his race, color, or national origin rather than because

Saqr’s repeated instances of poor academic performance rendered him unqualified to

continue in the medical program.

CONCLUSION

For the foregoing reasons, the Court GRANTS UC’s Motion (Doc. 65) and

DISMISSES WITH PREJUDICE Sagqr’s Title VI discrimination claim against UC.

The Court DIRECTS the Clerk to enter judgment and TERMINATE this case on its

docket.

SO ORDERED.

December 22, 2021

DATE DOUGLAS R. COLE

UNITED STATES DISTRICT JUDGE

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