Ward v. Franiscan Missionaries of Our Lady University

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

CYDNI WARD

CIVIL ACTION

VERSUS

NO. 22-220-JWD-SDJ

FRANCISCAN MISSIONARIES OF OUR

LADY UNIVERSITY

RULING AND ORDER

This matter comes before the Court on the Motion for Summary Judgment (Doc. 16) filed

by Defendant, Franciscan Missionaries of Our Lady University (“Defendant” or “FranU”).

Plaintiff Cydni Ward (“Plaintiff” or “Ward”) opposes the motion, (Doc. 18), and FranU has filed

a reply, (Doc. 20). Oral argument is not necessary. The Court has carefully considered the law, the

facts in the record, and the arguments and submissions of the parties and is prepared to rule. For

the following reasons, Defendant’s motion is granted, and all of Plaintiff’s claims against

Defendant are dismissed with prejudice.

I. RELEVANT FACTUAL BACKGROUND

A. Introduction

Plaintiff, Cydni Ward, was a student in Fran U’s Physician Assistant Program (“PA

Program”) from January 2020 until her final dismissal in July 2021. (Def.’s Statement of

Uncontested Material Facts (“SUMF”) ¶ 1, Doc. 16-1.)1 This case arises from Plaintiff’s dismissal

1 Local Civil Rule 56(c) requires a party opposing a motion for summary judgment to submit with its opposition “a

separate, short, and concise statement of material fact” that “shall admit, deny or qualify the facts by reference to each

numbered paragraph of the moving party’s statement of material facts. . . .” M.D. La. Civ. R. 56(c). “[U]nless a fact

is admitted,” the opponent’s statement “shall support each denial or qualification by a record citation as required by

this rule.” Id. “Each such statement shall begin with the designation ‘Admitted,’ ‘Denied,’ or ‘Qualified’ and, in the

case of an admission, shall end with such designation.” Id. “Facts contained in a supporting or opposing statement of

from that program. Plaintiff brings claims against Defendant arising under the Fourteenth

Amendment and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., on the basis

of race, and under the Americans with Disabilities Act (“ADA”) and Section 504 of the

Rehabilitation Act, for discrimination and failure to provide a reasonable accommodation. (Am.

Compl. ¶ 23, Doc. 3.)

In September 2005, FranU began offering a PA Program that provides a Master of Medical

Science degree to its graduates. (SUMF ¶ 2, Doc. 16-1.) The PA Program is accredited by the

Accreditation Review Commission on Education for the Physician Assistant (“ARC-PA”). (Id.

¶ 3.) Graduates of the PA Program are eligible to take the Physician Assistant National Certifying

Examination (“PANCE”) administered by the National Commission of the Physician Assistant

(“NCCPA”). (Id. ¶ 4.) Licensed and Certified PAs can diagnose and treat patients, prescribe

medications, and assist in surgery. (Id. ¶ 5.)

It is undisputed that the PA Program is a demanding program designed to promote critical

thinking as well as clinical knowledge and skills necessary to exercise sound medical decision-

making to provide a broad range of diagnostic and therapeutic services to patients. (Id. ¶ 6.) The

PA Program is a 28-month program and consists of 108 credit hours. (Id. ¶ 7.)

The first four semesters (68 credit hours) of the PA Program make up the didactic phase.

(Id. ¶ 8.) The didactic phase consists of more typical in-classroom and online lectures as well as

material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly

controverted.” M.D. La. Civ. R. 56(f).

Here, Plaintiff violated this rule. Ward submitted a Plaintiff’s Contested Issues of Material Fact (Doc. 18-1)

(“PCIMF”), but she does not specifically controvert, paragraph by paragraph, FranU’s SUMF. Thus, all facts in

FranU’s SUMF shall be deemed admitted for purposes of this motion. However, the Court will take into account the

evidence presented in PCIMF, along with the rebuttal evidence offered in Defendant’s Reply to [PCISM]

(“DRPCISM”) (Doc. 20-1).

laboratories and patient simulations that provide a fundamental layer of knowledge for students to

apply in the clinical setting. (Id. ¶ 10.)

The final three semesters of the PA Program (40 credit hours) are the clinical phase of the

PA Program. (Id. ¶ 9.) The clinical phase includes hands-on training under the direct supervision

of licensed physicians, physician assistants, and other healthcare providers. (Id. ¶ 11.)

Given the rigors and demands of the PA Program and the PA profession in general, FranU

requires students to complete all coursework with a grade of “B” or higher and maintain a 3.0 (or

calculated 80%) cumulative grade point average. (Id. ¶ 12.) No student may earn more than 2 “C”s

at any time during his or her participation in the PA Program. (Id. ¶ 13.)

A PA student may be placed on academic probation in the following circumstances: (1) if

his or her cumulative GPA falls below 3.0 (or 80% calculated) or (2) a 2nd “C” is earned during

any phase of the PA Program. (Id. ¶ 14.) If a student is placed on academic probation after having

earned 2 “C”s, the student will remain on academic probation for the remainder of the PA Program.

(Id. ¶ 15.) A student will be dismissed from the PA Program if he or she earns a third “C.” (Id. ¶

16.)

In compliance with the RA and ADA, students with documented disabilities may request

appropriate accommodations through the Office of Student Affairs. (SUMF ¶ 17, Doc. 16-1.)

According to FranU, students must request accommodations for each semester they are enrolled

in FranU; the accommodations do not continue automatically. (Id. ¶ 18.)

Reasonable accommodations are made for qualified students with disabilities. (Id. ¶ 19.)

Accommodations that are not classified as reasonable by FranU are as follows: (1) any

accommodation that poses a direct threat to the health and safety of others; (2) any accommodation

that makes a substantial change in an essential element of the curriculum or a substantial change

in the services that are provided; or (3) any accommodation that imposes an undue financial or

administrative burden on the University. (Id. ¶ 20.)

Each student in the PA Program must meet the Technical Standards of the profession and

the PA Program in order to ensure patient safety and quality of care. (Id. ¶ 21.) One of the Technical

Standards states:

Cognition: The physician assistant program is a concentrated and

fast-paced program. In addition, physician assistants must often

make critical decisions when evaluating patients and must make

these decisions in a timely manner. Students must be able to

assimilate large amounts of information quickly and efficiently, as

well as gather and analyze patient data in a timely manner. Health

conditions and/or drugs (prescription, over the counter or

“recreational”) that alter perceptions, slow responses, or impair

judgment are not compatible with success in the program. These

may also affect the student’s ability to obtain a license or to practice

as a physician assistant.

(Id. ¶ 22.) For the clinical-based assignments in the didactic phase of the PA Program, some

accommodations normally acceptable in the didactic classes (such as extended time on clinical-

based assignments and a distraction-reduced environment) fundamentally alter the essential

requirements and are not granted because they will compromise the PA Program’s goals and

standards. (Id. ¶ 23.)

As part of the licensing requirements for PAs, the licensing board requires an attestation

from FranU that the graduate has the appropriate knowledge and skills needed for practice as a

PA. (Id. ¶ 24.)

Ward knew that the PA Program was a tough program and that not all students who enter

the PA Program will successfully complete the PA Program. (Id. ¶ 25.) Prior to Plaintiff’s

dismissal from the PA Program, at least one of her classmates had left the PA Program. (Id. ¶ 26.)

B. Plaintiff’s Time in FranU’s PA Program

During Ward’s New Student Orientation in January 2020, Ward was provided with the PA

Program Handbook and completed an assignment which required the students to thoroughly

review the handbook. (SUMF ¶ 27, Doc. 16-1.) During Ward’s New Student Orientation in January

2020, Ward met with Dr. Sarah Deyo, who was the PA Program Director and Ward’s faculty

advisor. (Id. ¶ 28.) As her faculty adviser, Dr. Deyo formally met with Plaintiff each semester to

discuss her progress in the PA Program. (Id. ¶ 29.)

At the conclusion of the Spring 2020 semester, Ward earned a “C” in PHAS 5740 Medical

Anatomy and Neuroanatomy, her first “C” in the PA Program. (Id. ¶ 30.) At the conclusion of the

Summer 2020 semester, Plaintiff earned a “C” as her final grade in PHAS 5731

Pharmacotherapeutics I, her second “C” in the PA Program. (Id. ¶ 31.) This brought her cumulative

GPA to 2.939. (Id.)

On September 1, 2020, Dr. Deyo advised Ward via letter that she was being placed on

academic probation because she earned her second “C” in the PA Program. (Id. ¶ 32.) The

September 1, 2020 letter also informed Plaintiff that even though her current cumulative GPA was

below 3.0, it was calculated as 84% on a 100-point scale, which is considered a “B” average. (Id.

¶ 33.) In the September 1, 2020 letter, Dr. Deyo advised Ward that she would be dismissed from

the PA Program if she earned a third “C.” (Id. ¶ 34.)

On September 18, 2020, Ward completed an “Accommodation Request Form” for the Fall

2020 semester, her first request for accommodation during the PA Program. (SUMF ¶ 35, Doc.

16-1.) The “Accommodation Request Form” contained the following acknowledgement:

By completing this form, I acknowledge and understand that I am

responsible for picking up my letter of accommodation and meeting

with my instructors to notify them of all granted accommodations. I

further understand that accommodations will not take effect until I

have discussed the requests with my instructors and returned the

initialed copy of the letter of accommodation to the Student Affairs

Office

(Id. ¶ 36.) Ward’s accommodation request was granted, and the letter of accommodation identified

her accommodations as extended time on exams (1.5x) and a distraction-reduced environment for

exams. (Id. ¶ 37.)

On October 26, 2020, Dr. Deyo and Plaintiff had an extensive Fall Mid-Semester advising

meeting. (Id. ¶ 38.) During this meeting, Dr. Deyo told Ward that her exam grades across all

Foundations of Clinical Medicine and Surgery courses were concerning and suggested a lack of

individual foundational knowledge that correlates with safe patient care. (Id. ¶ 39.) Dr. Deyo

strongly encouraged her to review the ExamSoft Strengths and Opportunities reports to identify

current themes in her lower-performing areas and provided her with the reports. (Id. ¶ 40.) Dr.

Deyo also advised Ward to focus on identifying specific knowledge gaps. (Id. ¶ 41.) During the

October 26, 2020 meeting, Dr. Deyo advised Plaintiff that she had to meet all benchmarks the

following semester to move to the clinical phase of the program. (Id. ¶ 42.) During this meeting,

Dr. Deyo complimented Ward on being positive and professional. (Id. ¶ 43.)

At the conclusion of the Fall 2020 semester, Ward was informed that she would remain on

academic probation based on the PA Program’s two “C” policy. (Id. ¶ 44.)

Ward did not submit a New Accommodation Request Form for the Spring 2021 semester.

(SUMF ¶ 45, Doc. 16-1.) Despite this, and although Plaintiff did not receive a letter of

accommodation from the Student Affairs Office or discuss the letter with her instructors (as is

required each semester by FranU), Ward’s “profile” in ExamSoft, the computer-based testing

software, did not change, and Plaintiff was still afforded time and a half on her multiple choice

examinations for the Spring 2021 semester. (Id. ¶ 46.)

Dr. Deyo was Ward’s instructor for PHAS 5754 Foundations of Clinical Medicine and

Surgery V. (Id. ¶ 47.) Because portions of this course were clinical in nature, rather than didactic,

accommodations were not permitted by FranU. (Id. ¶ 48.) Ward understood that the purpose of

this course was to equip students with the knowledge and clinical ability necessary to competently

practice in a primary care setting. (Id. ¶ 49.) Regarding accommodations, the syllabus for PHAS

5754 Foundations of Clinical Medicine and Surgery V clearly stated:

Student Accommodations

This course is designed to evaluate the clinical and procedural

competencies necessary for entry into the clinical phase of the

program, and eventually entry-level PA practice. In order to achieve

competency, each student must meet the Technical Standards of the

program and the PA profession, which can be found on the college

website. . . .

In the clinical phase, and in practice, the PA must be able to

perform tasks, procedures, and made decisions in a variety of

clinical settings with a finite amount of time, and often under

stress. These abilities and behaviors have a direct effect on

patient safety and outcomes. Therefore, accommodations such

as, but not limited to: extended time, or distraction-free

environment would create a substantial change in standard or

[sic] practice and curriculum outcomes and potential [sic] result

in patient harm, and therefore cannot be granted for [Observed

Structured Clinical Examinations (“OSCEs”)], Differential

Diagnosis Exercises or History and Physical Documentation

Exercises. Each accommodation request will be reviewed on its

own merit by an Ad Hoc Committee of the Disabilities office.

(Id. ¶ 50; see also id. ¶ 61 (defining “OSCE”).)

According to Defendant, Ward was not afforded 1.5x time to complete the OSCEs,

Differential Diagnosis Exercises or History and Physical Documentation Exercises and similar

clinical-based assignments in PHAS 5754 because (1) she did not make such request, and (2) based

on the policy, such accommodation would amount to a fundamental change in the curriculum and

would potentially lead to patient harm. (Id. ¶ 51) This course prepares PA students for real-time

practice and critical decision-making, and the skills that are part of the Technical Standards.

(Id. ¶ 52.) The Course syllabus states that it was imperative that PA students could successfully

meet the benchmarks on clinical-based assignments within the time determined by the course

instructor as that is what would be required in practice. (Id. ¶ 53; Def. Ex. A-6, Doc.16-4.)

Prior to PHAS 5754 Foundations of Clinical Medicine and Surgery V, all of Plaintiff’s

examinations were computer-based multiple choice examinations. (SUMF ¶ 54, Doc. 16-1 (citing

Def. Ex. C at 58, Doc. 16-6).) One type of assessment in this course was “Differential Diagnosis,”

which was made up of 50 short answer questions. (Id. ¶ 55 (citing Def. Ex. C at 60, Doc. 16-6).)

Ward understood that a differential diagnosis is part of a clinical assessment of a patient and part

of the clinical analysis of a patient. (Id. ¶ 56 (citing Def. Ex. C at 59–60, Doc. 16-6).)

At the conclusion of the Spring 2021 semester, Ward earned a “C” in PHAS 5754, her third

“C” in the PA Program. (Id. ¶ 57.) On April 28, 2021, the PA Program’s core faculty committee

met to discuss Plaintiff’s failure to meet the PA Program’s benchmarks and moved to dismiss

Ward from the PA Program. (Id. ¶ 58.) In a letter dated April 29, 2021, to Ward from Dr. Deyo,

Ward was notified of her dismissal from the PA Program after earning her third “C” – a 77 in

PHAS 5754. (Id. ¶ 59.)

Plaintiff, meanwhile, contends that, by not providing extra time for this course, Defendant

failed to provide a reasonable accommodation in violation of the ADA and Rehabilitation Act.

(See PCIMF ¶ 6, Doc. 18-1 (disputed).) But the only evidence Plaintiff cites for this position in

the PCIMF is Dr. Devo’s testimony, wherein she said that Plaintiff was not given an

accommodation for her disability, without citing to what follows; Dr. Devo specifically stated that

Plaintiff was not given an accommodation “[b]ecuase of the program and course policy that

accommodations are not granted for clinical assessments, including OSCEs, OSLERs and history

and physical exam documentation,” which is consistent with the undisputed facts set forth above.

(Pl. Ex. 1 at 155–56, Doc. 18-2.)

Plaintiff also complains that she was allowed more time for some multiple-choice tests but

not on essay and short answer tests which she needed, but Plaintiff herself testified that, prior to

PHAS 5754 Foundations of Clinical Medicine and Surgery V, all of her tests were multiple choice.

(Def. Ex. C at 58, Doc. 16-6.) Again, Defendant maintains that these courses were treated

differently than PHAS 5743 because PHAS 5743 was clinical in nature rather than didactic, so

additional time was not allowed. (See SUMF ¶¶ 47–51, Doc. 16-1.)

On May 6, 2021, Plaintiff submitted a formal grade appeal of her grade in PHAS 5754

Foundations of Clinical Medicine and Surgery V. (SUMF ¶ 60, Doc. 16-1.) In her appeal, Ward

noted that she had a documented disability and was granted accommodations by the Office of

Student Services. (Id. ¶ 61.) Ward stated in her appeal that (1) per the course syllabus, she was not

granted accommodations for the OSCEs; (2) she was not granted the opportunity to repeat OSCEs

as provided in the syllabus; (3) she was not advised of her rights of appeal or remediation; and (4)

she was not provided a grading rubric for the OSCEs although the course syllabus said that one

would be provided. (Id.)

Because Dr. Deyo was the Program Director (the individual who would typically review a

grade appeal) and course instructor, Dr. Alicia Bates, Program Director for FranU’s Nurse

Practitioner Program, was asked to review Ward’s grade appeal. (Id. ¶ 62.) After reviewing the

syllabus, assignment rubrics, and PA handbook, Dr. Bates denied the grade appeal and supported

a grade of 77%. (Id. ¶ 63.) Dr. Bates advised Plaintiff that if she wanted to proceed further with

the grade appeal, she must forward her appeal to Dr. Susan Steele-Moses, then Dean of FranU’s

School of Health Professions. (Id. ¶ 64.)

On May 11, 2021, Ward escalated her grade appeal to Dr. Steele-Moses. (Id. ¶ 65.) Dr.

Steele-Moses reviewed Plaintiff’s appeal and supporting documents, including all examinations,

assignments, written work, simulated assessments, and clinical documentation, OSCE and OSLER

clinical scenarios, and Dr. Deyo’s gradebook. (Id. ¶ 66.) In her review of the entirety of the

documents, Dr. Steele-Moses noted that two of the three exams fell below the 80% benchmark,

two of the three mini-OCLERs fell below the benchmark, both H&P assignments fell below the

benchmark, and four of the six differential diagnosis assignments fell below the benchmark. (Id.

¶ 67.) Dr. Steele-Moses could not find any incongruence with the PA Program policies or the

course syllabus and Ward’s grade. (Id. ¶ 68.) Dr. Steele-Moses denied the grade appeal. (Id. ¶ 69.)

While the PA Program handbook does not have a procedure in place for appealing a

dismissal, Ward submitted her appeal of her dismissal from the PA Program to Dr. Deyo. (Id. ¶

70.) By letter dated May 25, 2021, Dr. Deyo advised Ward that the PA Program’s core faculty

committee reviewed her request to appeal her dismissal and did not grant her request. (Id. ¶ 71

(citing Def. Exs. A, A-10, Letter from Dr. Deyo to Plaintiff dated May 25, 2021).) Dr. Deyo

informed Ward that she could advance her appeal to Dr. Steele-Moses, which she did. (Id. ¶ 72.)

In an effort to assist Ward and give her every opportunity to succeed in her PA career path,

in a letter dated May 28, 2021, following a Zoom meeting with Ward on May 27, 2021, Dr. Steele-

Moses informed Ward that she would be given the opportunity to continue in the PA Program

upon meeting the following conditions:

1. You will repeat the essential requirements set forth in PHAS

5754, as deemed necessary by the Program Director, whether

you passed them or not.

2. Your Program Director, Dr. Deyo, will contact you the week of

June 14, 2021, to assign a full time faculty member who will

work with you during PHAS 6000.

3. You will register for PHAS 6000, a Pass/Fail course, at your

own expense.

4. You will meet with the assigned faculty member to review and

sign the learning contract and checkpoint due dates (the contract

is not negotiable and you will adhere to all activities set forth in

the contract as defined by the assigned faculty member).

5. You will demonstrate didactic and clinical proficiency on all

checkpoints delineated in the contract with a P (pass). A P is

defined as receiving a score of 79.5 or better on the assigned

checkpoint. You are reminded that no additional time is given

for clinical performance activities, regardless of a documented

disability. Extended time is only granted for written

examinations. In the event that you will need to complete any

written examinations during the remediation period, you are

encouraged to contact Student Services now and obtain the

required documentation.

6. Should you fail to receive a 79.5 on any component of the

remediation course (PHAS 6000), remediation will culminate

immediately. No further attempts will be allowed and you will

receive an F (fail) as your final transcript grade.

(Id. ¶ 73 (citing Def. Exs. E, E-2, Letter from Dr. Steele-Moses to Plaintiff dated May 28, 2021).)

On May 30, 2021, Ward acknowledged her acceptance and understanding of the terms of

the remediation by signing the acknowledgment on Dr. Steele-Moses letter, which stated:

I Cyndi Ward have received this dismissal determination and

understand that all remediation activities assigned to me must be

passed with a minimum score of 79.5 or better. Should I receive a

score of 79.49 or below on any of the remediation checkpoints, I

understand that the remediation period will stop and I will receive

an F for the remediation class (PHAS 6000). If I receive a failing

grade in PHAS 6000, I understand that my dismissal from the

program will stand and no further appeals will be heard.

(Id. ¶ 74 (citing Def. Exs. E, E-2, Doc. 16-8).)

Plaintiff highlights differences between PHA5754 FCMCS V – Comprehensive Medicine

and PHAS 6000—such as it being a 3 hour course rather than the 1 hour independent study—but

Plaintiff does not dispute the facts highlighted above. (See PCISMF ¶ 1, Doc. 20-1.)2

On June 16, 2021, Dr. Deyo invited Ward to a “Remediation Planning Meeting.” (SUMF

¶ 75, Doc. 16-1.)3 The Remediation Planning Meeting occurred on June 18, 2021, with Ward, Dr.

Deyo, and Dr. Michael McIntosh, who was an Assistant Professor and the Clinical Coordinator

for the PA Program, present at the meeting. (Id. ¶ 75.) During the Remediation Planning Meeting,

Dr. Deyo discussed the structure of the PHAS 6000 Independent Study course, provided Ward

with the course syllabus, and explained the student-developed remediation contract as a part of

which Plaintiff would be responsible for developing three learning goals based on a self-

assessment. (Id. ¶ 76 (citing Def. Exs. A, A-11 Course Syllabus for PHAS 6000, Doc. 16-4).)

Following the Remediation Planning Meeting, Dr. Deyo informed Plaintiff that Mr.

Michael Falba would serve as her faculty advisor for the remediation course. (Id. ¶ 77.) Ward

worked with Mr. Falba to create her learning goals, which were submitted to Dr. Deyo and Dr.

McIntosh on June 23, 2021. (Id. ¶ 78.)

Plaintiff complains that she requested Melissa Lemoine or Alicia Braud to “teach” the

remediation course, that she was not told why they were not chosen, and that that she did not want

2 When the PCIMF is cited alone, then that fact has either been admitted in the DRPCIMF or been qualified or denied

in such a way as to have it be deemed admitted as not properly controverted, unless otherwise indicated. See M.D. La.

Civ. R. 56(c), (f).

3 Plaintiff complains that she had to reach out to Dr. Deyo about this meeting, but (a) Plaintiff does not provide a

pinpoint citation to this fact, referring only to her combined submissions of her deposition excerpts (see PCIMF ¶ 2,

Doc. 18-1 (citing Pl. Ex. 2)); (b) putting this aside, it is undisputed that, on May 28, 2021, FranU told Plaintiff by

email that Dr. Deyo would contact her the week of June 14, 2021, to assign a full time faculty member who would

work with her during PHAS 6000, (SUMF ¶ 73, Doc. 16-1 (citing Def. Ex. E, E-2, Letter from Dr. Steele-Moses to

Ward dated May 28, 2021, Doc. 16-8)); and (c) in any event, this fact is not material to any issue in dispute.

Dr. Deyo because Dr. Deyo had previously given Plaintiff a “C.” (PCIMF ¶ 3, Doc. 20-1; Pl. Ex.

2 at 49-50.) But it is undisputed that Ms. Lemoine and Ms. Braud were not full-time faculty

members and did not teach the PHAS 5754 Foundations of Clinical Medicine and Surgery V, and,

therefore, they were not qualified to supervise the remediation course and grade the assignments.

(SUMF ¶ 79, Doc. 16-1.)

Plaintiff also stated that she did not want Dr. Deyo “teaching” her remediation course

because Dr. Deyo had told Ward that Ward had a knowledge deficit. (Pl. Ex. 2 at 49–51, Doc. 19-

2; PCIMF ¶¶ 4, Doc. 20-1.) Specifically, Plaintiff testified:

I just specifically asked not have Dr. Deyo if possible because I had

previously had Dr. Deyo for the course that I received a third “C”

in, and I had already explained to Dr. Steele-Moses the discomfort I

felt with Dr. Deyo because prior to this, the third semester of school,

Dr. Deyo told me that I had a knowledge deficit which I thoroughly

disagree with, and she told me that she did not expect me to pass the

third semester of school, she did not expect me to make it to January,

and when I made it to January, she told me she was very surprised

to see me, and that I should feel lucky to still be in the program. And

this was the same teacher who gave me my third “C.”

(Pl. Ex. 2 at 50–51, Doc. 19-2.) Defendant qualifies this by relying on the undisputed facts,

highlighted above, about Dr. Deyo’s October 26, 2020, meeting with Plaintiff. (SUMF ¶¶ 38–43,

Doc. 16-1.)

In any event, Ward was not repeating the entire PHAS 5754 Foundations of Clinical

Medicine and Surgery V course. (Id. ¶ 80 (citing Def. Exs. A, A-12, Remediation Contract, Doc.

16-4).) Her remediation course, PHAS 6000, was a self-directed course that was designed for

students to remediate specific content within a course. (Id. ¶ 81.) No other student had been given

the opportunity to take PHAS 6000 in response to a program dismissal appeal. (Id. ¶ 82.) The

course covered topics that were already taught. (Id. ¶ 83.) No additional teaching was required or

provided. (Id. ¶ 84.) Dr. Deyo, Dr. McIntosh, and Mr. Falba were available to Ward for assistance

with the topics. (Id. ¶ 85.)

Plaintiff’s Student Remediation Contract, which she signed on June 25, 2021, included the

following schedule of Remediation Activities and Due Dates:

• Differential Diagnosis (3) – Week of June 28

• Remediation Foundation Exam Content – July 8

• OSLERs/H&P (x2) – Week of July 12

(Id. ¶ 86 (citing Def. Ex. A-12, Doc. 16-4).)

During the week of June 28th, Plaintiff was scheduled for three Differential Diagnosis

assignments: Cough (June 28); Fatigue (June 29); and Rash (June 30). (Id. ¶ 87.) Ward informed

Dr. Deyo and Dr. McIntosh that she was concerned about the pace of the course. (Id. ¶ 88.) The

schedule of the course was designed to get Ward back into progression with her cohorts, who had

already started their clinical courses. (Id. ¶ 89.) There was approximately one week between the

end of the Spring 2021 semester and the beginning of clinicals. (Id. ¶ 90 (citing Def. Ex. C at 122,

Doc. 16-6).) The remediation course was the sole course she was taking at that time, and she was

only revisiting material previously taught. (Id. ¶ 91.)

Dr. Deyo and Dr. McIntosh graded the Differential Diagnosis assignments together on July

1, 2021. (Id. ¶ 92.) Ward earned 72% on Cough, 68% on Fatigue, and 90% on Rash. (Id. ¶ 93.)

On July 2, 2021, Dr. Deyo and Dr. McIntosh met with Plaintiff to review the results of the

Differential Diagnosis assignments and resulting dismissal from the program. (Id. ¶ 94.) Ward was

notified in writing of her failure to meet the benchmarks defined in the Remediation Contract and

dismissal from the PA Program. (Id. ¶ 95 (citing Def. Ex. A-13, Letter from Dr. Deyo to Ward,

Doc. 16-4).)

C. The Parties’ Positions

According to Defendant, Plaintiff struggled through the entirety of her time at the PA

Program. (SUMF ¶ 96, Doc. 16-1.) Ward failed multiple exams, even in courses in which she

ultimately earned a “B” as a final grade. (Id. ¶ 97.) FranU emphasizes that Plaintiff was provided

with an opportunity to continue in the PA Program, which no other student who had been dismissed

from the PA Program had been afforded. (Id. ¶ 98.) Moreover, Ward admitted that errors by a PA

can result in a patient’s death. (Id. ¶ 99 (citing Def. Ex. C at 27, Doc. 16-6).) FranU says that it

went above and beyond what it was required to do by allowing Plaintiff to take the Remediation

Course and upon successful completion, continue in the PA Program with her cohorts. (Id. ¶ 100.)

Plaintiff, on the other hand, lodges a number of complaints about the process and the failure

to accommodate. First, Plaintiff objects that the assignments were supposed to be graded one by

one under the contract and that feedback would be provided between each, but FranU disputes

this. (Compare PCIMF ¶ 8, Doc. 18-1, with DRPCIMF ¶ 8, Doc. 20-1.) The only evidence Plaintiff

cites for this fact is the Remediation Contract itself, and, as Defendant notes, the contract did not

state that the assignments would be graded “one by one.” (See Def. Ex. A-12, Doc. 16-4.) To the

contrary, it says only under the section “Remediation Activities & Due Dates,” that “2. Differential

Diagnoses (3) – Week of June 28.” (Id. at 46.)

Second, Plaintiff complains that she had difficulty with the way FranU was conducted

online during the COVID pandemic. (Pl. Ex. 2 at 54–56, Doc. 19-2.) But, all students faced this

challenge during COVID, and, as was shown above, she was back in the classroom as of January

2021, before she earned her third “C.” (Id.)

Third, Ward claims that there is a conflict of interest in this case. (PCIMF ¶ 9, Doc. 18-1.)

Specifically, Plaintiff objects to Dr. Deyo’s role as the teacher, the program director (who typically

reviews a grade appeal), and as an advisor. (Pl. Ex. 1 at 33, Doc. 18-2; DRPCIMF ¶ 9, Doc. 20-1.)

But Defendant points out that it is undisputed that, because Dr. Deyo was Plaintiff’s course

instructor, another Program Director, Dr. Alicia Bates, reviewed Ward’s grade appeal, denied that

appeal, and found that the grade of 77% was supported. (SUMF ¶¶ 62–63, Doc. 16-1.) Defendant

also highlights that, during the Remediation Course, Dr. Deyo and Dr. McIntosh and Mr. Falba

were available to help Ward with topics, and Dr. Deyo and Dr. McIntosh graded Plaintiff’s

Differential Diagnosis assignments together. (Id. ¶¶ 85, 92.)

Fourth, Plaintiff attacks the remediation benchmarks, arguing that they lacked an objective

grading system, but Defendant disputes this as well. (Compare PCIMF ¶ 10, Doc. 18-1, with

DRPCIMF ¶ 10, Doc. 20-1.) Plaintiff points only to the syllabus for PHAS 6000 for support, yet

the syllabus does not really speak either way on this issue. (See Pl. Ex. 3, Doc. 19-3.) Defendant,

on the other hand, reiterates that the assignments in this course were jointly graded by Dr. Deyo

and Dr. McIntosh. (See DRPCIMF ¶¶ 10–11, Doc. 20-1.)

Fifth, Plaintiff notes that, because the remediation course was only one-hour, she was not

allowed to apply for financial aid for that course and had to pay for it out of pocket. (Def. Ex. C at

145, Doc. 16-6.) Defendant, however, correctly points out that this does not amount to competent

summary judgment evidence that the decision to use a one-hour remediation course was done for

discriminatory reasons. (See DRPCIMF ¶ 11, Doc. 20-1.)

Sixth, Plaintiff complains that she wasn’t given enough time between tests during the

remediation phase. (Pl. Ex. 2 at 54, Doc. 18-2.) Dr. Deyo rejected the request, saying that the

“course schedule is what the course schedule is,” and that the schedule was “set in stone” after

being published.” (Id. at 54–57.) While the differential diagnoses assignments had to be finished

in just one week, they were “proctored examinations,” and “the faculties [had] schedules with

other places, at other times, other responsibilities. So that schedule [was] based on [FranU’s]

proctor availability.” (Id. at 58.) Dr. Deyo said that schedule is not rearranged for any course,

unless there is an emergency. (Id.) Plaintiff had asked to change the course schedule, but Dr. Deyo

said she did not know it was an ADA request because changing schedules of courses or

assessments around is not a typical ADA request of students. (Id. at 60–61.) Dr. Deyo said, “In my

seven years at the University, I’ve never seen the ADA office issue an accommodation saying,

‘This student needs to be able to dictate the scheduling of assessments.’” (Id. at 61.) So, Dr. Deyo

said she did not know. (Id.) Again, the school only offers time-and-a-half exams and a distraction-

reduced environment for multiple choice exams as reasonable accommodations. (Id. at 62–63.)

Defendant responds that the Remediation Course schedule was described in the

Remediation Contract, but that’s not technically true; the Remediation Contract signed by Plaintiff

simply said that the three Differential Diagnosis were to be conducted the “Week of June 28.”

(SUMF ¶ 86, Doc. 16-1.) However, it is undisputed that, during the week of June 28th, Ward was

scheduled for three Differential Diagnosis assignments: Cough (June 28); Fatigue (June 29); and

Rash (June 30). (Id. ¶ 87.) Moreover, it is also undisputed that the course was designed to get

Plaintiff back into progression with her cohorts, who had already started their clinical courses.

(Id. ¶ 89.)

Seventh, Plaintiff objects that she was told by Dr. Steele-Moses that she would have an

eight-week in-person course for her independent study but it was in fact only four. (Pl. Ex. 2 at

47–50, Doc. 19-2.) Defendant responds, correctly, that Dr. Steele-Moses’ letter to Ward

(summarized above) did not say the course would be eight weeks, (Def. Ex. E-2, Doc. 16-8).

Moreover, the Remediation Contract contained the course schedule, which spanned from June 21st

through the week of July 12th. (Def. Ex. A-12, Doc. 16-4.) Plaintiff signed both of these documents.

(Def. Ex. E-2, Doc. 16-8; Def. Ex. A-12, Doc. 16-4.)

Eighth, Plaintiff asserts that she was “forced to draft two appeals at the same time as the

instructions regarding appeal were unclear,” which Defendant denies with various facts

highlighted above describing the different appeals. (See DRPCIMF ¶ 15, Doc. 20-1.) But, putting

aside Defendant’s denials, Plaintiff fails to show how this is somehow reflective of discrimination.

And ninth, Plaintiff points to two alleged comparators, arguing that Plaintiff was treated

less favorably, under nearly identical circumstances, than other similarly situated FranU students

who were not members of her protected class. First, according to Plaintiff, Jackie Johnson told

Plaintiff that she should have received a “B” in one of her courses but she was granted an “A” on

her transcript. (Def. Ex. C at 88–90, Doc. 16-6.) Plaintiff said that Plaintiff had a 79.45, which was

only 0.05 percent from a B. (Id.) Johnson, on the other hand, was 0.05 percent from an “A” in a

similar course. (Id.)

But, as will be shown below, Plaintiff did not recall what course Johnson was involved in.

(Id.) Moreover, for Johnson, the difference was between an “B” and an “A,” not between a C,”

which might put her on probation, and a “B.” (Id.) Lastly, Johnson was not involved in a

remediation course (though Plaintiff said that shouldn’t make a difference because Plaintiff was

also not involved in a remediation course). (Id. at 90–91.)

Additionally, Plaintiff points to Annie Shockett; Ward testified that Shockett was white,

received three “Cs,” but was not dismissed from the PA Program. (Def. Ex. C at 138, Doc. 16-6.)

Plaintiff said Shocktt failed the first semester, appealed the dismissal, and was granted the appeal

by Dr. Steele-Moses. (Id. at 138–39.) But Plaintiff conceded that, though Shockett was allowed to

repeat everything, Shockett denied the opportunity because she felt that things would not be

different the second time. (Id. at 139.) So, Shockett also received an academic dismissal. (Id.)

Defendant further responds, as reflected above, that (a) Plaintiff lacks competent summary

judgment evidence to support this fact; (b) Ward was given the opportunity to continue in the PA

Program, which no other student who had been dismissed from the PA Program was afforded; and

(c) Plaintiff did not successfully complete the Remediation Course which was offered to her.

(SUMF ¶¶ 82, 95, 98, Doc. 16-1.)

II. RELEVANT STANDARD

“The court shall grant summary judgment 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 movant bears the initial burden and must identify ‘those portions of the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.’”

Pioneer Expl., L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th Cir. 2014) (quoting Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted)).

If the mover bears his burden of showing that there is no genuine issue of fact, “its opponent

must do more than simply show that there is some metaphysical doubt as to the material

facts. . . . [T]he nonmoving party must come forward with ‘specific facts showing that there is a

genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–

87 (1986) (internal citations omitted). The non-mover’s burden is not satisfied by “conclusory

allegations, by unsubstantiated assertions, or by only a scintilla of evidence.” Little v. Liquid Air

Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations and internal quotations omitted).

Ultimately, “where the record taken as a whole could not lead a rational trier of fact to find

for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., 475

U.S. at 587 (cleaned up). Further:

In resolving the motion, the court may not undertake to evaluate the

credibility of the witnesses, weigh the evidence, or resolve factual

disputes; so long as the evidence in the record is such that a

reasonable jury drawing all inferences in favor of the nonmoving

party could arrive at a verdict in that party’s favor, the court must

deny the motion.

Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991) (citations omitted).

III. DISCUSSION

A. ADA and Rehabilitation Act Claims

a. Defendant’s Original Memorandum (Doc. 16-2)

Defendant begins by arguing that the Supreme Court has instructed lower courts to show

great deference to the professional judgment of academic institutes in determining student

qualifications, delinquencies, and dismissals. (Doc. 16-2 at 14–15.) According to Defendant, “the

more specialized and individualized the educational regime, the more unique the student/faculty

relationship becomes and the more deference an institution should be given when dismissing a

student for academic reasons.” (Id.) Here, FranU’s PA Program was highly specialized, so FranU

is entitled to deference. (Id.)

Defendant then turns to the Rehabilitation Act, arguing that “FranU provided her all of the

accommodations that it was required to provide under [that statute] and under the PA Program’s

policies.” (Id. at 15–17.) Defendant contends that: (a) Plaintiff cannot show that she was

“otherwise qualified” for the PA Program or that Fran U failed to provide her with a reasonable

accommodation, (id. at 17–19); (b) that Plaintiff’s requested accommodations” were not

“accommodations” at all and were not reasonable requests for the PA Program, (id. at 19–21).

Specifically, Defendant maintains:

(a) getting extra time for the clinical-based assignments would have

fundamentally changed the PA Program and impacted future

patient care and safety;

(b) Plaintiff’s argument that the grade of 79.45 should have been

rounded up to 79.5 and then to 80 is nonsensical and not

evidence of discrimination;

(c) Plaintiff’s objection to the remediation course being one hour or

only three weeks ignores the facts that (i) no other student was

given such an opportunity after being dismissed from the PA

Program; (ii) the goal of the course was to ensure Ward had the

foundational knowledge necessary to move into the clinical

phase of the PA Program and to do it in the amount of time that

would allow her to join her cohorts who had already started the

clinical rotation, not to teach or re-teach Plaintiff any new

information; and (iii) in any event, Ward did not successfully

complete the remediation course as agreed to in the Remediation

Contract.

(Id.) Even if Ward was qualified under the Rehabilitation Act, Plaintiff cannot demonstrate that

FranU dismissed her from the PA Program solely based on her disability, as required by that

statute; rather, Plaintiff has not rebutted the legitimate, non-discriminatory reason that she was

dismissed for poor academic performance. (Id. at 21.)

Turning to the ADA, Defendant makes a lengthy argument that it is exempt from Title III

of the ADA as a religious organization, (id. at 21–24) before asserting that, even if it is not exempt,

Plaintiff’s ADA claim fails for the same reasons as the Rehabilitation Act claim, (id. at 24–25).

Again, Plaintiff cannot establish (a) that she was an otherwise qualified individual with a disability;

(b) that FranU denied her a reasonable accommodation; and (c) that Plaintiff’s disability was a

“motivating factor” in her dismissal. (Id.) And, even if Plaintiff could establish the elements of its

ADA claims, she would only be entitled under the ADA to injunctive relief, not damages. (Id. at

25.)

b. Plaintiff’s Opposition (Doc. 18)

Conversely, Plaintiff maintains she was dismissed from the program because she was

denied several requests for a reasonable accommodation in violation of the ADA. (Doc. 18 at 1–

2.) Plaintiff begins her argument by emphasizing that academic intuitions must comply with the

ADA and Section 504 of the Rehabilitation Act. (Id. at 7–8.)

Plaintiff then asserts that there is direct evidence of discrimination because Defendant

admits in briefing that “certain accommodations were not permitted.” (Id. at 8.) Plaintiff disputes

Defendant’s claim that extra time could not be given in the clinical setting because (a) at the time

of the request, there was no clinical setting; (b) Ward was not in a hospital but in a classroom

environment; and (c) “no lives were remotely at risk or endangered.” (Id. at 8–9 (citations

omitted).) According to Plaintiff, if she had received her accommodation, she would have

successfully completed the program and maintained her “B” average. (Id. at 9–10.) Ultimately,

says Plaintiff, extra time does not fundamentally alter the nature of the program. (Id. at 10.)

Plaintiff also contends that she failed to receive a full accommodation in compliance with

the ADA. (Id.) FranU cannot provide accommodations for some assignments but not others. (Id.

at 11) Plaintiff should have been provided full accommodations (i.e., extra time) on all

assignments. (Id.) FranU’s denial creates a question of material fact that warrants denial of its

motion. (Id.) Plaintiff cites a few cases purportedly in support of this. (Id.) Ward also attempts to

distinguish two of Defendant’s cases. (Id. at 12.)

Plaintiff next responds to Defendant’s claim that it is exempt under the ADA as a religious

organization. (Id. at 13.) Plaintiff maintains that, even if that’s true, FranU is still subject to the

Rehabilitation Act. (Id. at 13–14.)

Plaintiff then argues that Dr. Deyo did not want her to succeed in the program and was

biased against her for her race and disability. (Id. at 14–15.) Plaintiff points to things Dr. Deyo

purportedly said about Plaintiff’s performance as evidence of ADA and Rehabilitation Act

violations. (Id.) Plaintiff then discusses other purported problems, summarized above, in the

factual background. (Id. at 15–16.)

c. Defendant’s Reply Memorandum (Doc. 20)

Defendant replies that Plaintiff failed to meet her burden. (Doc. 20 at 1–2.) There is no

evidence that FranU discriminated against Ward; rather, Ward was dismissed from the PA

Program for a legitimate, non-discriminatory reason—poor academic performance—consistent

with the Fran U’s and the PA Program’s policies. (Id.)

Defendant then emphasizes Plaintiff’s burden in opposing a summary judgment motion:

Plaintiff must come forward with competent evidence, not subjective beliefs and personal feelings.

(Id. at 3.) FranU says Ward has not met her burden and has presented only “conclusory allegations,

unsubstantiated assertions, improbable inferences, and unsupported speculation . . . .” (Id.)

Defendant next disputes Plaintiff’s claim that it admitted to violating the law by not

providing Ward with all the accommodations she requested. (Id. at 5.) Rather, FranU offered all

accommodations required by the ADA and Rehabilitation Act. (Id.) Defendant was not required

to make fundamental or substantial changes to its program or to lower its standards, and it did not

need to “perfectly adhere to an individual’s wishes regarding accommodations.” (Id.) Defendant

then pounds the facts again, reiterating that how important it is that clinical-based assignments

mirror the time constraints of real-world situations and how a student who cannot meet those

conditions can be harmful to patients. (Id. at 6.)

Following this, Defendant argues that the Remediation Course was conducted in

accordance with Dr. Steele-Moses’s criteria and the Remediation Contract. (Id. at 6–7.) Here,

FranU re-urges facts, highlighted above, about the Remediation Course. (Id.)

FranU then turns to case law. (Id. at 7.) First, FranU attacks two cases Plaintiff cited. (Id.)

Defendant points out that neither of the cited cases stand for the propositions that Ward relies upon.

(Id.) FranU then argues that two of the cases it cited are not distinguishable in the way Ward

claims. (Id. at 7–8.)

a. Applicable Law

“Although . . . the ADA and Section 504 of the Rehabilitation Act prohibit discrimination

against qualified individuals with disabilities, ‘the statutes govern different entities.’” Shurb v.

Univ. of Tex. Health Sci. Ctr. at Hous.-Sch. of Med., 63 F. Supp. 3d 700, 706 (S.D. Tex. 2014)

(quoting Kemp v. Holder, 610 F.3d 231, 234–35 (5th Cir. 2010)). Title II of the ADA applies to

public entities. 42 U.S.C. § 12131(1). Title III of the ADA prohibits discrimination in “any place

of public accommodation,” id. § 12182(a), including an “undergraduate, or postgraduate private

school, or other place of education,” id. § 12181(7)(J). Meanwhile, “[t]he [Rehabilitation Act]

prohibits discrimination in federally-funded programs and activities.” Shurb, 63 F. Supp. 3d at 706

(quoting 29 U.S.C. § 794(a)).

Still, “[t]he [Rehabilitation Act] and the ADA are judged under the same legal standards,

and the same remedies are available under both Acts.” Id. (quoting Kemp, 610 F.3d at 234–35

(citing Delano–Pyle v. Victoria Cnty., Tex., 302 F.3d 567, 574 (5th Cir. 2002))). “Specifically,

Title II of the ADA provides that ‘no qualified individual with a disability shall, by reason of such

disability, be excluded from participation in or be denied the benefits of the services, programs, or

activities of a public entity, or be subjected to discrimination by any such entity.’” Id. (quoting 42

U.S.C. § 12132). Likewise, Title III of the ADA provides, “No individual shall be discriminated

against on the basis of disability in the full and equal enjoyment of the goods, services, facilities,

privileges, advantages, or accommodations of any place of public accommodation by any person

who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C.

§ 12182(a). Similarly, “Section 504 of the Rehabilitation Act provides, in relevant part, that ‘[n]o

otherwise qualified individual with a disability in the United States, . . . shall solely by reason of

her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected

to discrimination under any program or activity receiving Federal financial assistance . . . .” Shurb,

63 F. Supp. 3d at 706 (quoting 29 U.S.C. § 794(a)).

The standards for establishing a claim under the ADA or Section 504 of the Rehabilitation

Act are substantially similar “in the context of a student excluded from an educational program. .

. .” Id. at 707 (quoting Maples v. Univ. of Tex. Med. Branch at Galveston, 901 F. Supp. 2d 874,

879–880 (S.D. Tex. 2012), aff’d 524 F. App’x 93 (5th Cir. 2013) (internal citations omitted)); see

also Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454, 461 (4th Cir. 2012) (“To the extent

possible, we construe [Title III of] the ADA and Rehabilitation Act to impose similar requirements.

. . . Thus, despite the different language these statutes employ, they require a plaintiff to

demonstrate the same elements to establish liability.” (citing, inter alia, Freilich v. Upper

Chesapeake Health, Inc., 313 F.3d 205, 214 (4th Cir. 2002); Bowers v. NCAA, 475 F.3d 524, 535

n.12 (3d Cir. 2007))). Plaintiff must show that “(1) [s]he has a qualifying disability; (2) [s]he is

qualified to participate in the defendant’s program; and (3) [s]he was excluded from the

defendant’s program due to [her] disability.” Shurb, 63 F. Supp. 3d at 706 (citing Maples, 901 F.

Supp. 2d at 879–880); see also Halpern, 669 F.3d at 461–62 (same).

“If a plaintiff can satisfy the prima facie elements, the burden shifts to the defendant to

‘articulate some legitimate nondiscriminatory reason’ for its actions.” Cohen v. Univ. of Texas

Health Sci. Ctr., 557 F. App’x 273, 278 (5th Cir. 2014) (quoting Daigle v. Liberty Life Ins. Co.,

70 F.3d 394, 396 (5th Cir.1995) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,

253 (1981))); see also Herzog v. Loyola Coll. in Maryland, Inc., No. 07-02416, 2009 WL 3271246,

at *8 (D. Md. Oct. 9, 2009) (applying burden-shifting to Title III disability discrimination claim in

academic setting). “If the defendant meets his burden and presents such a reason, then the burden

shifts back to the plaintiff to show that the nondiscriminatory justification was mere pretext for

discrimination . . . .” Cohen, 557 F. App’x at 278 (citing Seaman v. CSPH, Inc., 179 F.3d 297,

300–01 (5th Cir. 1999); see also Herzog, 2009 WL 3271246, at *8.

“A plaintiff may demonstrate pretext ‘by showing that the [defendant’s] proffered

explanation is unworthy of credence.’” Cohen, 557 F. App’x at 279 (quoting Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 143 (2000) (internal quotation marks and citation omitted)).

“An explanation is false or unworthy of credence if it is not the real reason for the adverse . . .

action.” Id. (quoting Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)).

“The only material difference between Titles II of the ADA and Section 504 of the

Rehabilitation Act] lies in their respective causation requirements.” Shurb, 63 F. Supp. 3d at 707

(quoting Bennett–Nelson v. La. Bd. of Regents, 431 F.3d 448, 454 (5th Cir. 2005) (internal citations

omitted)); see also Halpern, 669 F.3d at 461–62 (stating same with respect to Title III of the ADA

and the Rehabilitation Act). “Section 504 of the Rehabilitation Act prohibits discrimination ‘solely

by reason of’ a person’s disability, whereas Title II of the ADA provides that ‘discrimination need

not be the sole reason’ for the adverse action or exclusion but rather ‘a motivating factor.’” Shurb,

63 F. Supp. 3d at 707 (quoting Pinkerton v. Spellings, 529 F.3d 513, 516–19 (5th Cir. 2008)); see

also Halpern, 669 F.3d at 461–62 (same for Title III and Rehabilitation Act). “Nevertheless, ‘[a]

plaintiff asserting a private cause of action for violations of the ADA or the [Rehabilitation Act]

may only recover compensatory damages upon a showing of intentional discrimination.’” Shurb,

63 F. Supp. 3d at 707 (quoting Delano–Pyle, 302 F.3d at 574 (citing Carter v. Orleans Par. Pub.

Sch., 725 F.2d 261, 264 (5th Cir. 1984))).

The Court also looks to employment cases to assess whether Ward was “treated less

favorably, under nearly identical circumstances, than were other similarly situated” FranU students

“who were not members of [her] protected class.” Cardiel v. Apache Corp., 559 F. App’x 284, 288

(5th Cir. 2014) (per curiam); see also Maples, 901 F. Supp. 2d at 880 (stating that plaintiff failed

to prove disability discrimination “through the McDonnell Douglas burden shifting framework by,

for example, showing that nondisabled students with similar academic performance were treated

more favorably than she was.”). By way of analogy, “[e]mployees are generally not similarly

situated if they have different supervisors, different work responsibilities, work for different

divisions of a company, committed dissimilar violations, or were the subject of adverse

employment actions too remote in time from that taken against the plaintiff.” Cardiel, 559 F. App’x

at 288 (citing Lee v. Kan. City S. Ry., 574 F.3d 253, 259–60 (5th Cir. 2009)). “Furthermore, if the

‘difference between the plaintiff’s conduct and that of those alleged to be similarly situated

accounts for the difference in treatment received from the employer, the employees are not

similarly situated for the purposes of an employment discrimination analysis.’” Id. (quoting Lee,

574 F.3d at 260 (emphasis in original) (citation and internal quotation marks omitted)). “In short,

an employee who proffers a fellow employee as a comparator must ‘demonstrate that the

employment actions at issue were taken under nearly identical circumstances’ for ‘nearly identical’

conduct.” Id. (quoting Lee, 574 F.3d at 260 (citation and internal quotation marks omitted)). That

is, “in the context of a race [or disability] discrimination claim where the plaintiff alleges that

employees who were not members of the protected class received more [favorable treatment], the

plaintiff must come forward with specific evidence of comparators who were similarly situated.”

Corley v. Louisiana ex rel. Div. of Admin., Office of Risk Mgmt, 816 F. Supp. 2d 297, 316 (M.D.

La. 2011) (emphasis added) (citing Lee, 574 F.3d at 259–60). Courts within the Fifth Circuit define

“similarly situated” narrowly. See Horton v. G4S Secure Sols. (USA), Inc., No. 16-544, 2018 WL

1997535 at *5 (M.D. La. Apr. 27, 2018) (citing Brown v. Bd. of Trs. Sealy Indep. Sch. Dist., 871

F. Supp. 2d 581, 593 (S.D. Tex. 2012)).

Finally, in the context of employment cases, “it is well established that ‘discrimination

laws [are not] vehicles for judicial second-guessing of business decisions,’” Amedee v. Shell Chem.

LP-Geismer Plant, 384 F. Supp. 3d 613, 636 n.168 (M.D. La. 2019), aff’d sub nom. Amedee v.

Shell Chem., L.P., 953 F.3d 831 (5th Cir. 2020) (citations omitted), and the same is true for

academic settings:

Federal law “does not mandate that an educational institution ‘lower

or [ ] effect substantial modifications of standards to accommodate

a handicapped person,’ assuming such standards are reasonable.”

McGregor v. La. State Univ. Bd. of Supervisors, 3 F.3d 850, 858

(5th Cir. 1993) (quoting Southeastern Cmty. Coll. v. Davis, 442 U.S.

397, 413 [ ] (1979)), cert. denied, 510 U.S. 1131 [ ] (1994).; see also

Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225 n. 11 [ ]

(1985) (quoting Bd. of Curators, Univ. of Mo. v. Horowitz, 435 U.S.

78, 96 n. 6 [ ] (1978) (“University faculties must have the widest

range of discretion in making judgments as to the academic

performance of students and their entitlement to promotion or

graduation.”)). Absent evidence of discriminatory intent or disparate

impact, reasonable deference must be accorded to an educational

institution’s academic decisions. McGregor, 3 F.3d at 859[ ]

(internal citations omitted).

Shurb, 63 F. Supp. 3d at 709–10. “The question is not whether an employer [or, here, an academic

institution] made an erroneous decision; it is whether the decision was made with discriminatory

motive.” Amedee, 384 F. Supp. at 636 n.168 (citations omitted); see also Shurb, 63 F. Supp. 3d at

709–10. “Plaintiff’s subjective belief that she was discriminated against based on her disability . .

. is insufficient to create a genuine issue of material fact for trial.” Amedee, 384 F. Supp. at 636

n.168.

b. Analysis

Having carefully considered the matter, the Court will grant Defendant’s motion on the

discrimination claims. First, Plaintiff has failed to establish a prima facie case of discrimination;

she was not qualified to participate in the program, and she was not excluded from the program

due to her disability.

The undisputed evidence (detailed extensively above) shows that the purpose of PHAS

5754 Foundations of Clinical Medicine and Surgery V was to equip students with the knowledge

and clinical ability necessary to competently practice in a primary care setting. (SUMF ¶¶ 48–49,

Doc. 16-1.) As the syllabus for this course stated, “In the clinical phase, and in practice, the PA

must be able to perform tasks, procedures, and made [sic] decisions in a variety of clinical settings

with a finite amount of time, and often under stress. These abilities and behaviors have a direct

effect on patient safety and outcomes.” (Id. ¶ 50 (emphasis omitted).) The course prepares PA

students for real-time practice and critical decision-making and the skills that are part of the

Technical Standards, and it is imperative that PA students successfully meet the benchmarks on

clinical-based assignments within the time determined by the course instructor as that is what

would be required in practice. (Id. ¶¶ 52–53; Def. Ex. A-6, Doc. 16-4.) Despite these requirements,

Plaintiff received a “C” in the course—her third—thus failing to meet the requirements of the PA

Program. (SUMF ¶ 57, Doc. 16-1.)

Then, even though it was not required, FranU gave Ward a final opportunity to continue in

the PA Program upon the successful completion of the Remediation course, and she specifically

acknowledged by signature that a score of 79.49 or lower would result in her receiving a failing

grade and the dismissal from the program. (Id. ¶¶ 73–74.) Again, it is undisputed that no other

student had been given the opportunity to take PHAS 6000 in response to a program dismissal

appeal, and the course covered topics already taught and was designed for students to remediate

specific content within a course. (Id. ¶¶ 81–83.) Notwithstanding her agreement, she still failed to

satisfactorily complete two of her three assignments. (Id. ¶¶ 92–93.)

Under the circumstances, the Court finds that, even construing the evidence in a light most

favorable to Plaintiff and drawing reasonable inferences in her favor, no reasonable juror could

conclude that Plaintiff was “qualified to participate in the defendant’s program” or that “ [s]he was

excluded from the defendant’s program due to [her] disability.” Shurb, 63 F. Supp. 3d at 707

(citation omitted); see also Halpern, 669 F.3d at 466–67 (“Where a professional school has

reasonably determined based on an identifiable pattern of prior conduct that a student is unfit to

join his chosen profession, federal law does not obligate the school to allow that student to remain

in and graduate from its educational program.”). On this basis alone, Defendant’s motion could be

granted.

But, even if Plaintiff had established a prima facie case, Defendant has offered a legitimate,

non-discriminatory reason for Ward’s dismissal: her poor academic performance. Thus, it was

incumbent on Plaintiff to show that Defendant’s justification was “not the real reason for the

adverse [ ] action” but either (a) that it was caused solely because of discrimination (under the

Rehabilitation Act) or (b) that discrimination was a motivating factor (under the ADA). See Cohen,

557 F. App’x at 279; Shurb, 63 F. Supp. 3d at 707.

Plaintiff has failed to meet this burden. The Court has reviewed Ward’s various complaints

about her dismissal (detailed above), and the Court finds that a reasonable factfinder could not

conclude that discrimination was a motivating factor in FranU’s dismissal of Plaintiff, and

certainly could not find that discrimination was the sole reason for the adverse action. To take one

example, Plaintiff complains that Dr. Deyo had ill will toward her, but, again, it is undisputed that

(a) because Dr. Deyo was Plaintiff’s course instructor, another Program Director, Dr. Alicia Bates,

reviewed Ward’s grade appeal, denied that appeal, and found that the grade of 77% was supported,

(SUMF ¶¶ 62–63, Doc. 16-1), and (b) during the Remediation Course, (i) Dr. Deyo and Dr.

McIntosh and Mr. Falba were available to help Ward with topics, and (ii) Dr. Deyo and Dr.

McIntosh graded Plaintiff’s Differential Diagnosis assignments together, (id. ¶¶ 85, 92). Thus,

Plaintiff cannot prevail on this argument.

Other complaints, such as her course being only an hour, her grade not being rounded up,

her course being only four weeks rather than eight, or the fact that she did not receive enough time

between assignments, are either contradicted by Dr. Steele-Moses’ letter, which Plaintiff signed,

or are issues which she could have but did not incorporate into the letter or Remediation Contract.

(Id. ¶ 73–76). That is to say, these objections amount to nothing more than subjective beliefs that

she was discriminated against rather than substantial evidence of pretext, and that is insufficient to

create a question of fact for trial. See Amedee, 384 F. Supp. 3d at 636 (citation omitted).

Finally, the Court finds that Ward has not provided “specific evidence of comparators”

who were treated differently under “nearly identical circumstances.” Cardiel, 559 F. App’x at 288;

Corley, 816 F. Supp. 2d at 316. Plaintiff points to two comparators: (1) Jackie Johnson, who was

given an “A” even though she received a “B,” (Def. Ex. C at 88–90, Doc. 16-6); and (2) Annie

Shockett, who received three “Cs” but was not dismissed, (Def. Ex. C at 138–39, Doc. 16-6.)

Preliminarily, the Court agrees with FranU that Plaintiff has not presented competent

evidence to support these facts. See Barnett v. La. Dep’t of Health, No. 17-1793, 2023 WL

2467876, at *3 (M.D. La. Mar. 10, 2023) (deGravelles, J.) (explaining that affidavit testimony

“must be made on personal knowledge, set out facts that would be admissible in evidence, and

show that the affiant or declarant is competent to testify on the matters stated” and that, while “all

knowledge is inferential, . . . the inferences and opinions must be grounded in observation or other

first-hand personal experience” and “must not be flights of fancy, speculations, hunches, intuitions,

or rumors about matters remote from that experience.” (citations omitted)). Here, Plaintiff provides

no basis for knowing what these other two students’ situations were, or even a basis from which

the Court could infer such knowledge.

But, putting that aside and assuming the truth of Plaintiff’s testimony, Plaintiff has failed

to establish that these two students were proper comparators. With respect to Johnson, whose grade

was raised from a “B” to an “A,” (a) Plaintiff could not recall what course Johnson was involved

in; (b) more importantly, Johnson was not involved in a remediation course; and (c) most

importantly, there is a considerable difference between raising from a “B” to an “A” than from a

“C” to a “B,” as the latter involves probation and the former does not. (Def. Ex. C at 88–90, Doc.

16-6.) Likewise, Plaintiff identifies Annie Shockett as someone who received three “Cs” but was

not dismissed, but (a) Shockett was allowed to repeat her courses but ultimately chose not to; and

(b) Plaintiff was given an opportunity to continue the PA Program upon the successful completion

of the remediation course, but she failed to do so. (Def. Ex. C at 138–39, Doc. 16-6; SUMF ¶¶ 82,

95, 98, Doc. 16-1.)

Thus, Johnson and Shockett’s situations are too dissimilar to Plaintiff’s to be proper

comparators. That is, the “difference between the plaintiff’s conduct and that of [the students]

alleged to be similarly situated accounts for the difference in treatment received from” FranU, so

the students are “not similarly situated for the purposes of [a] [ ] discrimination analysis.” Cardiel,

559 F. App’x at 288 (quoting Lee, 574 F.3d at 260 (emphasis in original) (citation and internal

quotation marks omitted)). Without more, Plaintiff has not met her burden of “com[ing] forward

with specific evidence of comparators who were similarly situated,” particularly given the fact that

“the Fifth Circuit defines ‘similarly situated’ narrowly.” Santos v. Baton Rouge Water Works Co.,

No. 18-1098, 2021 WL 1227875, at *17 (M.D. La. Mar. 31, 2021) (deGravelles, J.) (citing, inter

alia, Corley, 816 F. Supp. 2d at 316; and then citing Horton, 2018 WL 1997535 at *5).

In sum, “[t]he plaintiff does not identify any evidence establishing that [her] disability was

a motivating factor in [FranU’s] decision to remove [her] from its [PA P]rogram.” Shurb, 63 F.

Supp. 3d at 708. “Instead, the record demonstrates that the University’s removal of the plaintiff

was consistent with its performance requirements and was made only after numerous attempts to

reasonably accommodate the plaintiff’s disability.” Id. (citing Shaboon v. Duncan, 252 F.3d 722,

731 (5th Cir. 2001) (reasoning that the dismissal of a medical student due to concerns about the

student’s mental health and fitness to perform as a doctor combined with the student’s failure to

provide a certification of fitness from his treating psychiatrist constituted “a sound academic basis

for dismissal.”); see also Maples, 901 F. Supp. 2d at 880 (“Instead, the undisputed summary

judgment evidence shows that UTMB’s exclusion of Maples was consistent with its performance

requirements and made only after multiple attempts to reasonably accommodate her disability

failed.” (citing Hamilton v. Sw. Bell. Tel. Co., 136 F.3d 1047, 1052 (5th Cir. 1998) (affirming

summary judgment in ADA case because undisputed evidence established that the plaintiff was

fired for misconduct, not because of his PTSD))). Consequently, Defendant’s motion will be

granted, and Plaintiff’s discrimination claims under the ADA and Rehabilitation Act will be

dismissed.

a. Applicable Law

Additionally, “[u]nder Title II [of the ADA] and the [Rehabilitation Act], discrimination

by a public entity includes failing to make reasonable modifications or accommodations [for] the

disabled individual, so that [he] can participate in the programs or activities provided by the public

entity.” Id. at 708 (citing Aragona v. Berry, No. 10–1610, 2012 WL 467069, *10–11 (N.D. Tex.

Feb. 14, 2012) (internal citations omitted)); and then citing 28 C.F.R. § 35.130(b)(7); and then

citing 34 C.F.R. § 104.44(a)). Likewise, under Title III of the ADA, “discrimination” is defined to

include “‘a failure to make reasonable modifications’ that are ‘necessary’ to provide a disabled

individual with such full and equal enjoyment [of public accommodations], ‘unless the entity can

demonstrate that making such modifications would fundamentally alter the nature of such goods,

services, facilities, privileges, advantages, or accommodations.’” Halpern, 669 F.3d at 461

(quoting 42 U.S.C. § 12182(b)(2)(A)(ii)).

“The plaintiff, however, bears the burden of requesting reasonable accommodations.”

Shurb, 63 F. Supp. 3d at 708–09 (citing Jenkins v. Cleco Power, LLC, 487 F.3d 309, 315 (5th Cir.

2007) (citing Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 736 n.4 (5th Cir. 1999))). “Once a

qualified individual with a disability requests reasonable accommodations, ‘the public entity has

an obligation to engage in an “interactive process” to determine the best means of accommodating

the plaintiff's disability.”” Id. at 709 (quoting Aragona, 2012 WL 467069 at *10 (citing Loulseged,

178 F.3d at 735)); see also Halpern, 669 F.3d at 466 (explaining how defendant did not violate

interactive process requirement for Title III claim).

“While the ADA does provide a right to reasonable accommodation, it does not, however,

mandate that a plaintiff be given his or her preferred accommodation.” Id. (citing E.E.O.C. v. Agro

Distrib., LLC, 555 F.3d 462, 471 (5th Cir. 2009) (emphasis added)). Again, as the Shurb court

explained:

The process of obtaining and creating reasonable accommodations

in the academic setting differs from that in the employment setting.

For instance, under the Rehabilitation Act, a school is required to

“make such modifications to its academic requirements as are

necessary to ensure that such requirements do not discriminate or

have the effect of discriminating, on the basis of handicap, against a

qualified handicapped applicant or student.” 34 C.F.R. § 104.44(a).

Such “[m]odifications may include changes in the length of time

permitted for the completion of degree requirements, substitution of

specific courses required for the completion of degree requirements,

and adaptation of the manner in which specific courses are

conducted.” Id. Likewise, under the ADA, a school is required to

“make reasonable modifications in policies, practices, or procedures

when the modifications are necessary to avoid discrimination on the

basis of disability . . . .” 28 C.F.R. § 35.130(b)(7).

Nonetheless, under no circumstances is the University required to

provide accommodations that would “fundamentally alter the nature

of the service, program, or activity” and need not alter eligibility

criteria that are “shown to be necessary for the provision of the

service, program, or activity being offered.” 28 C.F.R.

§ 35.130(b)(7)-(8); see also Maples, 901 F. Supp. 2d at 883. Federal

law “does not mandate that an educational institution ‘lower or [ ]

effect substantial modifications of standards to accommodate a

handicapped person,’ assuming such standards are reasonable.”

[McGregor, 3 F.3d at 858 (quoting Davis, 442 U.S. at 413)].; see

also [Ewing, 474 U.S. at 225 n.11 (quoting Horowitz, 435 U.S. at 96

n.6)] (“University faculties must have the widest range of discretion

in making judgments as to the academic performance of students

and their entitlement to promotion or graduation.”)). Absent

evidence of discriminatory intent or disparate impact, reasonable

deference must be accorded to an educational institution’s academic

decisions. McGregor, 3 F.3d at 859[ ] (internal citations omitted).

Shurb, 63 F. Supp. 3d at 709–10.

b. Analysis

Having carefully considered the matter, the Court will grant Defendant’s motion on this

issue as well. In sum, all reasonable jurors would conclude that Ward’s various desired

accommodations would “fundamentally alter the nature of the service, program, or activity” and

“alter eligibility criteria that are shown to be necessary for the provision of the service, program,

or activity being offered.” Id. at 709.

The Court need not repeat all of the undisputed evidence outlined above in the Factual

Background and Disability Discrimination sections. To briefly recap, Plaintiff was given a

reasonable accommodation (additional time and a distraction-free environment) for the didactic

portion of the PA Program. (SUMF ¶¶ 8, 10, 35–37, Doc. 16-1.) But, the clinical parts of the PA

Program required Plaintiff to perform in real-world situations where actions must often be taken

with time constraints. (See id. ¶¶ 21–23, 48–53.) And there was a good reason for these

requirements; as Plaintiff admitted, errors by a PA can result in a patient’s death. (Id. ¶ 99 (citing

Def. Ex. C at 27).) The Court agrees with FranU’s assessment that it went above and beyond what

it was required to do by allowing Ward to take the remediation course and upon successful

completion, continue in the PA Program with her cohorts, (id. ¶ 100), particularly in light of the

deference the Court must give the institution in making academic decisions, see Shurb, 63 F. Supp.

3d at 709–70.

As in Shurb, “[t]he undisputed evidence in the record demonstrates that [FranU] complied

with the ADA and the Rehabilitation Act in providing the plaintiff with reasonable

accommodations when [s]he timely requested them,” and even with accommodations when they

were not requested. Id. at 710. “However, in spite of the accommodations provided by the

University, the plaintiff was unable to perform at the required level and failed to comply with the

University’s policies . . .”, id., with Dr. Steele-Moses’s letter, or with the Remediation Contract.

(See Def. Ex. A-12, Doc. 16-4; Def. Ex. E-2, Doc. 16-8.) “The federal disability discrimination

laws mandate only the right to reasonable accommodations for qualified individuals with

disabilities; they do not provide an automatic right to a plaintiff’s preferred accommodations or

unfettered admission/access to the plaintiff’s chosen educational institution.” Shurb, 63 F. Supp.

3d at 710.

For all these reasons, Defendant’s motion will be granted. Plaintiff’s claim that FranU

failed to offer a reasonable accommodation will be dismissed with prejudice. (Id.)

B. Title VI and Fourteenth Amendment

Defendant then turns to Plaintiff’s Title VI claim and argues that Ward cannot establish

intentional race discrimination. (Doc. 16-2 at 27.) Defendant maintains that it dismissed Plaintiff

for a legitimate, non-discriminatory reason (poor academic performance), and Plaintiff cannot

prove that its actions were motivated by race, particularly given the fact that FranU went above

and beyond its policies by giving her the opportunity of a remediation course. (Id.) With respect

to the Fourteenth Amendment, Defendant urges that it is a private institution, not a state actor, and

therefor its conduct is not “fairly attributable to the State.” (Id. at 27–28.)

Plaintiff responds that she was discriminated against because of her race and treated

differently than Johnson and Shockett. (Doc. 18 at 16–17.) Moreover, the Fourteenth Amendment

applies to higher education. (Id.)

Defendant replies that Plaintiff has failed to put forward competent summary judgment

evidence proving her Title VI or Fourteenth Amendment claim. (Doc. 20 at 9.) Plaintiff’s only

“proof” are the above two comparators, but Plaintiff fails to establish that she has personal

knowledge regarding their grades. (Id.)

“Title VI of the Civil Rights Act of 1964 provides that ‘[n]o 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.’” Bisong v. Univ. of Hous., 493 F. Supp. 2d 896, 904–05 (S.D. Tex. 2007)

(quoting 42 U.S.C. § 2000d). “The Supreme Court and the Fifth Circuit have held that a private

right of action exists under Title VI only for violations involving intentional discrimination.” Id.

(citing Guardians Ass’n v. Civ. Serv. Comm’n of City of N.Y., 463 U.S. 582, 103 S. Ct. 3221, 3235

n.27 (1983)). “The court’s ‘inquiry into intentional race [or national origin] discrimination is

essentially the same for individual actions brought under . . . Title VI and Title VII.” Id. (quoting

Baldwin v. Univ. of Tex. Med. Branch at Galveston, 945 F. Supp. 1022, 1031 (S.D. Tex. 1996),

aff’d 122 F.3d 1066, 1997 WL 464467 (5th Cir.1997)).

Additionally, “[t]he Equal Protection Clause of the Fourteenth Amendment commands that

no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which

is essentially a direction that all persons similarly situated should be treated alike.” Normore v.

Dall. Indep. Sch. Dist., 677 F. Supp. 3d 494, 524 (N.D. Tex. 2023) (quoting City of Cleburne, Tex.

v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216

(1982))). “The Fifth Circuit has explained that § 1983 and Title VII are ‘parallel causes of action.’”

Id. (quoting Lauderdale v. Tex. Dep’t of Crim. Just., Institutional Div., 512 F.3d 157, 166 (5th Cir.

2007)). “Furthermore, the ‘inquiry into intentional discrimination is essentially the same for

individual actions brought under sections 1981 and 1983, and Title VII.’” Id. at 524 n.18 (quoting

Wallace v. Tex. Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996)). “To establish a violation of the

Equal Protection Clause in the employment context, a plaintiff must prove a discriminatory

purpose or motive.” Id. at 525.

“Plaintiffs in these types of cases may rely on either direct or circumstantial evidence, or

both.” Bisong, 493 F. Supp. 2d at 905 (citations omitted). As with the ADA and Rehabilitation Act

claims, if Plaintiff relies on circumstantial evidence, the Court employs the McDonnell Douglas

burden-shifting analysis. Id. (citing McDonnell Douglas Corp. v. Green, 93 S. Ct. 1817, 1824

(1973)); Normore, 677 F. Supp. 3d at 525–26 (citation omitted). If the plaintiff establishes a prima

facie case, and if the defendant offers a legitimate, nondiscriminatory reason, the plaintiff must

meet its ultimate burden of persuasion on the issue of intentional discrimination. Bisong, 493 F.

Supp. 2d at 905. “A plaintiff may meet this burden by producing evidence tending to show that

the reason offered by the defendant is not true but, instead, is a pretext for discrimination.” Id.

(citing McDonnell Douglas, 93 S. Ct. at 1825).

Finally, the deference Courts give to universities in academic decisions for ADA and

Rehabilitation Act claims applies with equal force to Title VI claims:

Cases that question academic decisions made by universities require

courts to balance the rights of students against the school’s

“legitimate interests . . . in preserving the integrity of [its]

programs.” [Alexander v. Choate, 469 U.S. 287, 105 S. Ct. 712, 720

(1985)]. Because “[c]ourts are particularly ill-equipped to evaluate

academic performance,” [Horowitz, 98 S. Ct. at 956], courts accord

great deference to a school’s determination. See also [Ewing, 106

S. Ct. at 513] (“When judges are asked to review the substance of a

genuinely academic decision . . . they should show great respect for

the faculty’s professional judgment. Plainly, they 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.”); Levi v.

University of Texas at San Antonio, 840 F.2d 277, 280 (5th Cir.

1988) (“To the extent a decision concerning a teacher’s or student’s

academic performance requires ‘an expert evaluation of cumulative

information,’ it lends itself poorly to judicial review.”).

Bisong, 493 F. Supp. 2d at 905–06.

Here, Plaintiff has failed to meet her burden. Even assuming that Plaintiff had made a prima

facie case, Defendant has offered a nondiscriminatory reason for dismissing plaintiff: her poor

academic performance. The only evidence Plaintiff offers in response are the alleged comparators.

But, as shown above: (a) Plaintiff does not have competent evidence to support this, and (b) even

putting that aside, the purported comparators are too dissimilar from Plaintiff’s situation to

demonstrate pretext. Consequently, for all of the reasons given above, Defendant’s motion will be

granted, and Plaintiff’s Title VI and Fourteenth Amendment claims will be dismissed with

prejudice.

IV. CONCLUSION

Accordingly,

IT IS ORDERED that the Motion for Summary Judgment (Doc. 16) filed by Defendant

Franciscan Missionaries of Our Lady University is GRANTED, and all claims by Plaintiff Cydni

Ward against Defendant are DISMISSED WITH PREJUDICE.

Signed in Baton Rouge, Louisiana, on September 20, 2024.

S

JUD GE JOHN W. deGRAVELLES

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA