holding that “to be otherwise qualified for retention, McGregor must be capable of satisfying the academic and technical requirements set by the Law Center with the aid of reasonable accommodations”
How later courts described this case
- holding that “to be otherwise qualified for retention, McGregor must be capable of satisfying the academic and technical requirements set by the Law Center with the aid of reasonable accommodations”
Written by the judges who cited it.
The opinion
Case: 23-20462 Document: 60-1 Page: 1 Date Filed: 08/14/2024
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-20462 FILED
Summary Calendar August 14, 2024
____________ Lyle W. Cayce
Clerk
Valerie Reiss,
Plaintiff—Appellant,
versus
Texas A&M University; Doctor John L. Junkins,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:21-CV-263
______________________________
Before Jones, Smith, and Dennis, Circuit Judges.
Per Curiam:*
Plaintiff-Appellant Valerie Reiss contends that Defendants-Appellees
Texas A&M University and Mark Welsh III1 (collectively “TAMU”)
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
1
Reiss initially filed this lawsuit against Dr. John L. Junkins in his official capacity
as interim president of Texas A&M University. On July 21, 2023, Welsh became the new
interim president of Texas A&M University. Pursuant to Federal Rule of Civil Procedure
25(d), Welsh has taken Dr. Junkins’s position as a defendant in this litigation. See Fed. R.
Civ. P. 25(d) (“An action does not abate when a public officer who is a party in an official
Case: 23-20462 Document: 60-1 Page: 2 Date Filed: 08/14/2024
No. 23-20462
discriminated against her in violation of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12131, et seq., and the Rehabilitation Act, 29 U.S.C. §
701, et seq., for disability discrimination and failure to accommodate. The
district court granted TAMU’s motion for summary judgment, dismissed
Reiss’s claims, and entered final judgment. For the reasons that follow, we
AFFIRM.
I
Valerie Reiss was a student in Texas A&M University’s Doctor of
Veterinary Medicine (“DVM”) program. It is undisputed that while enrolled
in the DVM program, Reiss requested and received accommodations
through the disability services office for back conditions exacerbated by a car
accident in Spring 2016. Reiss received accommodations in the form of
extended time for exams, flexibility with tardiness, and limited physical
activity. The disability services office provided the same accommodations to
Reiss each semester. Reiss was dismissed from the DVM program in April
2019 after receiving a failing grade in her Small Animal General Surgery
Rotation. Pursuant to the Texas A&M University Professional Student
Handbook, a student is automatically dismissed if they accumulate three Ds,
two Fs, or two Ds and one F. Her first semester, Reiss received an F in Small
Animal Anatomy and a D in Physiology. In April 2019, Reiss received an F in
her Small Animal General Surgery Rotation—her second F while enrolled in
the DVM program—and was automatically dismissed from the program.
The bulk of Reiss’s claims centers around her experience in her Small
Animal General Surgery Rotation. Reiss argues that during this rotation, her
supervisor, Dr. Amanda Richards, did not accommodate her disability.
_____________________
capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The officer’s
successor is automatically substituted as a party.”).
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No. 23-20462
Specifically, Reiss alleges that during a surgery on March 7, 2019, Dr.
Richards failed to provide her a cart or a standing desk and was angry with
Reiss when she raised concerns about her disability and accommodations.
The following day, Dr. Richards asked Reiss how the accommodations were
going, and Reiss responded that the accommodations were “pretty good
overall.” During this same conversation, Dr. Richards raised concerns that
Reiss was approaching things with “a little too much confidence” and
cautioned her to ask questions when she was unsure about something.
On March 18, 2019, Dr. Richards sent Reiss an email with more
concerns about Reiss’s performance. Dr. Richards listed several issues she
saw, including Reiss miscommunicating with another student about which
medication to prescribe, Reiss being unable to evaluate a patient by sight, and
Reiss being unable to address her patient’s hypotension effectively. Dr.
Richards then outlined several areas where Reiss needed to improve,
including asking questions before moving forward, communicating more
accurately and effectively with her classmates, and taking instruction
seriously. Reiss responded with her own interpretation of the points that Dr.
Richards had raised, asking to be “given the benefit of the doubt,” and the
opportunity “to show the improvement” Dr. Richards was looking for. Dr.
Richards responded again, copying other faculty on the email, raising
concerns about Reiss’s performance and her ability to be a competent
veterinarian. Reiss failed the rotation and was automatically dismissed from
the DVM program.
Following the second failing grade, this time in her Small Animal
General Surgery Rotation, Reiss was given a choice between initiating a grade
appeal process or appealing for readmission, either of which had to happen
within ten business days from the date of her automatic dismissal. Instead of
pursuing either option at that time, Reiss requested a medical deferral from
the DVM program, which was approved in April 2019. In approving Reiss’s
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Case: 23-20462 Document: 60-1 Page: 4 Date Filed: 08/14/2024
No. 23-20462
medical deferral, the letter specifically stated that “because you have been
dismissed from the professional curriculum based upon your accumulation
of 2Fs and 1D in the DVM program, 10 days following your return from the
medical deferral, you must notify the Professional Programs Office if you
wish to appeal the failing grade . . . or if you wish to appeal for readmission to
the DVM program.” Reiss neither initiated a grade appeal nor appealed for
readmission into the DVM program.
In May 2019, she requested accommodations in the form of
completing all rotations at alternative locations in Dallas—away from Texas
A&M University. A committee responsible for reviewing accommodation
requests denied this accommodation, finding it to be unreasonable. Instead,
the disability services office offered Reiss (1) meetings with clinical
supervisors and a veterinary school representative before each rotation to
review accommodations and discuss concerns; (2) weekly meetings to ensure
all accommodations were being provided; and (3) an opportunity to work
with Student Counseling Services to ensure additional counseling was
available. Reiss insisted this offer was unacceptable.
In August 2019, Reiss indicated that she wished to return to active
student status and again requested the additional accommodation of
completing all final rotations in Dallas. Texas A&M University responded
that Reiss had been dismissed from the DVM program and that she must
either pursue a grade appeal or apply for readmission before changing her
student status to active. They also noted that Reiss may not move forward
with the grade appeal process until she indicated she was ready to return from
the medical deferral. Reiss acknowledges that she neither appealed her failing
grade nor applied for readmission to the DVM program, and that following
this August 2019 exchange, she ceased all communications with Texas A&M.
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No. 23-20462
Reiss brought this lawsuit in January 2021, bringing claims for
violations of the ADA and the Rehabilitation Act for disability discrimination
and failure to accommodate. TAMU filed a motion for summary judgment.
Following a Report and Recommendation by the magistrate judge, the
district court granted the motion for summary judgment, dismissed Reiss’s
claims, and entered final judgment. Reiss timely appealed.
II
This court reviews a district court’s grant of summary judgment de
novo. Fahim v. Marriott Hotel Servs., Inc., 551 F.3d 344, 348 (5th Cir. 2008).
Summary judgment shall issue “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). “In determining whether a genuine
issue as to any material fact exists, [the court] must view the evidence in the
light most favorable to the nonmoving party.” Fahim, 551 F.3d at 348–49.
III
Reiss appeals the entry of summary judgment as to her disability
discrimination and failure to accommodate claims.2 Reiss argues that the
district court erred in entering summary judgment on her disability
discrimination claims because “the evidence showed that Reiss could not
return from her medical deferral unless and until she was provided the
accommodations requested.” TAMU responds that the sole reason for
_____________________
2
On appeal, TAMU argues that Reiss did not adequately allege disability
discrimination claims in her amended complaint. The district court stated that it was “not
entirely clear whether Reiss intends to bring discrimination claims,” but it addressed the
merits of Reiss’s discrimination claims out of an abundance of caution. Reiss’s amended
complaint includes headings for “failure to accommodate” and “discrimination.”
Although TAMU is correct that much of Reiss’s amended complaint discusses her failure
to accommodate claims, we will address Reiss’s disability discrimination claims as her
amended complaint clearly alleges such a claim.
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No. 23-20462
Reiss’s dismissal from the program was her failure to meet the academic
standards, and that Reiss failed to create a dispute of material fact on this
issue.
To establish a disability discrimination claim under either the
Rehabilitation Act or the ADA3 “in the context of a student excluded from
an educational program, on summary judgment, a plaintiff must create a
genuine dispute of material fact that: (1) she has a disability; (2) she is
otherwise qualified to participate in the defendant’s program; and (3) she was
excluded from the program on the basis of her disability.” Maples v. Univ. of
Tex. Med. Branch, 901 F. Supp. 2d 874, 879 n.3 (S.D. Tex. 2012), aff’d, 524
F. App’x 93 (5th Cir. 2013). To prevail on a failure to accommodate claim
under either statute, on summary judgment, a plaintiff must create a genuine
dispute of material fact that: “(1) the plaintiff is a qualified individual with a
disability; (2) the disability and its consequential limitations were known by
the covered employer; and (3) the employer failed to make reasonable
accommodations for such known limitations.” Amedee v. Shell Chem., L.P.,
953 F.3d 831, 837 (5th Cir. 2020).4 Thus, under both claims, Reiss must be
otherwise “qualified” to participate in the DVM program.
_____________________
3
The Rehabilitation Act was enacted “to ensure that handicapped individuals are
not denied jobs or other benefits because of prejudiced attitudes or ignorance of others.”
Brennan v. Stewart, 834 F.2d 1248, 1259 (5th Cir. 1988). Similarly, the ADA was enacted
to prevent discrimination against individuals with disabilities. Id. As the language in the
statutes contain parallel language, [j]urisprudence interpreting either section is applicable
to both.” Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000).
4
A “qualified individual with a disability” under the ADA is an “individual with
a disability who, with or without reasonable modifications to rules, policies, or practices, .
. . meets the essential eligibility requirements for the receipt of services or the participation
in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2). The
Rehabilitation Act similarly prevents discrimination against “qualified individuals with
disabilities.” 29 U.S.C. § 701.
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No. 23-20462
Reiss argues that she was qualified for the program because she passed
a licensing exam and had been offered several jobs. This is inapposite. It is
apparent based on the record that Reiss does not meet the essential eligibility
requirements for participation in the program articulated in the Texas A&M
University Professional Student Handbook. McGregor v. La. State Univ. Bd.
of Sup’rs, 3 F.3d 850, 855 (5th Cir. 1993) (holding that “to be otherwise
qualified for retention, McGregor must be capable of satisfying the academic
and technical requirements set by the Law Center with the aid of reasonable
accommodations”); see also Shaikh v. Texas A&M Univ. Coll. of Med., 739 F.
App’x 215, 221 (5th Cir. 2018) (finding that the plaintiff satisfied the essential
eligibility requirements to remain in the program where he passed all the
required curriculum and his third-year clinical rotations with honors). She
failed the Small Animal General Surgery rotation as a result of her poor
academic performance, and neither appealed her failing grade nor appealed
for readmission. Maples, 901 F. Supp. 2d at 882 (quoting Halpern v. Wake
Forest Univ. Health Scis., 669 F.3d 454, 465 (4th Cir. 2012)) (“[T]he law does
not require the school to ignore misconduct that has occurred because the
student subsequently asserts it was the result of a disability.”). Reiss was
unable to meet the essential eligibility requirements of the DVM program,
and thus, cannot bring a failure to accommodate claim or a disability
discrimination claim under either the ADA or the Rehabilitation Act.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
7