Reiss v. Texas A&M University

UNITED STATES DISTRICT COURT August 09, 2023

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

VALERIE REISS, §

§

Plaintiff. §

§

V. § CIVIL ACTION NO. 4:21-cv-00263

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TEXAS A&M UNIVERSITY, et al., §

§

Defendants. §

MEMORANDUM AND RECOMMENDATION

Plaintiff Valerie Reiss (“Reiss”) filed this lawsuit against Defendants,

alleging violations of Title II 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. Now before me is a Motion

for Summary Judgment filed by Defendants Texas A&M University (“TAMU”) and

Mark Welsh III (“Welsh”)1 (collectively, “Defendants”). See Dkt. 44. Having

reviewed the briefing, the record, and the applicable law, I recommend that the

motion be GRANTED.

BACKGROUND

A. REISS’S HEALTH CONDITIONS

Doctors diagnosed Reiss with scoliosis when she was 19 years old. Scoliosis

is a sideways curvature of the spine. Reiss describes her limitations due to scoliosis

as follows:

My medical letters have consistently listed my accommodations

as no lifting, no bending, the use of equipment (standing desk, lumbar

1 At the time that Reiss filed this lawsuit, she identified Dr. John L. Junkins (“Junkins”),

the interim president of TAMU, as a defendant. On July 21, 2023, Welsh became the new

interim president at TAMU. 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);

Hafer v. Melo, 502 U.S. 21, 25 (1991) (“Indeed, when officials sued in this [official]

capacity in federal court die or leave office, their successors automatically assume their

roles in the litigation.”).

support chair, carts, etc.) to assist with physical activities, and time

for heat/cold therapy or stretching. My spinal/musculoskeletal

condition makes bending forward or to the side at the waist, sitting

for long periods, deadlifting items from/to the floor, and other

motions painful. Repetitive motions of this manner can and have

worsened this condition over the last few years.

Dkt. 51-2 at 8. Reiss alleges that she also suffers from severe situational depression

and post-traumatic stress disorder.

B. REISS STARTS VETERINARY SCHOOL

In the fall of 2015, Reiss enrolled in the Doctor of Veterinary Medicine

(“DVM”) program at TAMU with an expected graduation date of May 2019.

Reiss’s first semester grades included an F and a D. This was obviously

concerning. Per the student handbook, DVM students “who accumulate any

combination of two (2) Ds and one (1) F, two (2) Fs, or three (3) Ds, will

automatically be dismissed from the professional DVM program.” Dkt. 45-1 at 160;

see also Dkt. 44-1 at 31. The takeaway: Reiss did not have much runway. If Reiss

received one more D or F during her remaining time in the DVM program, she

would be dismissed for poor academic performance.

C. REISS’S FIRST REQUEST FOR ACCOMMODATIONS

At the beginning of her second semester of veterinary school in January

2016, Reiss requested accommodations from TAMU’s Department of Disability

Services (“Disability Services”). Reiss claimed she needed accommodations to

prevent pain and injuries caused by heavy lifting, sitting continuously, and bending

to see test items. On January 28, 2016, Disability Services agreed to allow Reiss

“[e]xtended time for tests,” “flexibility with tardiness,” and “limited physical

activity.” Dkt. 44-10 at 2. To receive these accommodations, Reiss needed to

“[d]eliver accommodations letters to [her] course instructors and discuss testing

and other academic accommodations.” Id. Disability Services also instructed Reiss

that if “the accommodations are not being met by the instructor, it is your

responsibility to contact your Access Coordinator,” Dr. Kristie Orr. Id.; see also

Dkt. 44-6 at 15 (“The student has the responsibility to let us know that the professor

is not providing the accommodations, and then we can follow up.”). Disability

Services continued to provide Reiss the same accommodations each semester.

D. REISS STRUGGLES IN A GENERAL SURGERY ROTATION, ULTIMATELY

CHECKING HERSELF INTO A HOSPITAL

The only actionable events giving rise to this lawsuit occurred in the spring

of 2019, during Reiss’s last semester of veterinary school.2 The fourth and final

year of veterinary school consists of a series of two-week externships and clinical

rotations led by TAMU faculty. In March 2019, Reiss took a small animal general

surgery rotation with Dr. Amanda Richards (“Dr. Richards”). “Before the rotation

began, Reiss emailed and spoke with Dr. Richards to inform her about the

accommodations she would need,” including a standing desk and a cart on which

to put supplies so that she would not have to bend over repeatedly. Dkt. 51 at 7. Dr.

Richards emailed Reiss back to let her know that the general surgery room did not

have standing desks, but that Reiss could bring her own standing desk. Dr.

Richards also wrote that “[a]s far as lifting and bending, we can definitely help you

out in that regard.” Dkt. 44-3 at 2. When the rotation began the week of March 4,

2019, there was no cart in the classroom for Reiss. Reiss raised this issue with Dr.

Richards “several times at the beginning of the rotation,” but Reiss did not contact

Disability Services. Dkt. 44-2 at 26.

During a surgery on March 7, 2019, Reiss again asked Dr. Richards for a cart.

According to Reiss, Dr. Richards—who supervised the surgery—“snapped” at Reiss

and told her that “from now on, you need to put [the equipment] on the floor by

yourself.” Id. at 27. On March 8, 2019, Dr. Richards met with Reiss for a mid-

rotation evaluation. Dr. Richards addressed the events of the previous day,

2 “Texas’s two-year personal-injury limitations period applies to” Title II of the ADA and

[Rehabilitation Act] cases. Frame v. City of Arlington, 657 F.3d 215, 237 (5th Cir. 2011).

Given that Reiss filed this lawsuit on January 27, 2021, Defendants argue that the only

actionable allegations in Reiss’s Amended Complaint are those that occurred after

January 27, 2019. See Dkt. 44 at 38. I agree. Accordingly, I will consider only those

disability-discrimination and failure-to-accommodate allegations arising after January

27, 2019.

acknowledging that she had been “stressed out.” Dkt. 44-5 at 7:13 (audio recording

of meeting between Reiss and Dr. Richards). Reiss agreed that it was a “weird

situation.” Id. at 7:19. Dr. Richards asked Reiss how the accommodations were

going, noting that she “wanted to make sure we are accommodating you well.” Id.

at 7:30–32. Reiss responded that the accommodations were “pretty good overall”

and raised no specific concerns, beyond acknowledging that she needed to make

sure that she raised the surgery table high enough so that her back did not hurt. Id.

at 6:34–35.

Dr. Richards also discussed Reiss’s performance during the mid-rotation

evaluation. Dr. Richards told Reiss that she was doing “well,” she “could tell that

[Reiss] stud[ied],” and Reiss approached “everything with confidence—sometimes

a little too much confidence.” Id. at 3:42–50 Dr. Richards told Reiss to not rush

through surgeries, to “keep up the good work, ask questions when you need to, if

you’re not sure about something, don’t guess, just ask questions.” Id. at 4:45–51.

On March 18, 2019 (the Monday night of the second and final week of the

rotation), Dr. Richards emailed Reiss “to bring up a few points that we[re] a bit

concerning” to her based on her observations in surgery that day. Dkt. 45-1 at 154.

According to Dr. Richards, Reiss (1) miscommunicated with another student about

which medications to prescribe, which was “not safe”; (2) asked questions about

things that Reiss “should know by now”; (3) needed “to know how to evaluate the

patient” by sight rather than “[s]imply looking at a monitor”; and (4) did not know

how to troubleshoot her patient’s hypotension “in an effective way.” Id. at 155. Dr.

Richards wrote that “[h]aving confidence is great, but being too confident when

you are not proficient at a specific skill set is dangerous.” Id. Lastly, Dr. Richards

listed the areas in which Reiss needed to improve by the end of the rotation:

1. Do not assume - 1f you are unsure of something, ask before you do.

2. Communicate with your classmates more effectively - 1f you feel they are not communicating with you, let

them know and do not just isolate yourself.

3. Know how to read your patient without relying on the monitor.

4. Take our instructions seriously. When we make corrections, it 1s because we are trying to help you learn.

We are not trying to criticize or make you feel badly.

I truly think you are a very bright student and I know how passionate you are about this profession. I want

this email to come across as a colleague trying to help you succeed, not as an instructor trying to nit-pick.

From the email you sent me before the rotation started, I know you have had issues in the past. I do not know

specifics as I am still very new at TAMU, but I do know that your performance on this rotation needs to

improve. Whatever I can do to help you learn, please let me know and I will do my best.

Id.

Reiss did not see Dr. Richards’s email that night or the next day. Reiss says

she first learned of the email on Wednesday, March 20, 2019, when Dr. Richards

discussed her concerns with Reiss during an in-person meeting in the presence of

a technician. During that meeting, Dr. Richards allegedly told Reiss that she

“planned to fail [Reiss] from the course.” Dkt. 44-2 at 40. Reiss emailed Dr.

Richards back on Wednesday night, providing her interpretation of the evaluation

and the points of concern that Dr. Richards raised. Reiss did not voice any concerns

about accommodations.

Dr. Richards responded to Reiss on Thursday night, March 21, 2019, and

copied other faculty on the email, including Dr. Karen Cornell (“Dr. Cornell”), an

Associate Dean for the DVM program. Dr. Richards wrote that Reiss “seemed to be

doing well on week 1 but [Reiss] only had a couple surgeries, with a couple

mistakes. I did not realize that it was going to get worse over the course of the

rotation.” Id. at 151. Dr. Richards noted that Reiss was “impossible to teach”

because she acted like she knew everything already. Id. Additionally, Dr. Richards

said that Reiss’s actions were “dangerous” because she invented ways to perform

surgeries instead of asking questions and made-up excuses instead of admitting

mistakes. Id. Dr. Richards ended the email by writing that she “d[id] not trust

[Reiss] as a veterinarian at this point in time,” that if she passed Reiss she was

“passing the buck on to the next clinician without fixing the problem,” and that she

would discuss Reiss’s grade with Dr. Cornell and the other faculty members copied

on the email. Id. at 152.

Reiss alleges that during this time period she experienced consistent panic

attacks because of Dr. Richards’s “unfair criticism,” bullying from her classmates,

and the lack of accommodations. Dkt. 51 at 8. On the last day of the general surgery

rotation, Reiss missed class because she “checked herself into a hospital when she

started having suicidal ideations.” Id.

E. REISS IS DISMISSED FROM THE DVM PROGRAM AFTER FAILING THE

GENERAL SURGERY ROTATION AND BEGINS A MEDICAL DEFERRAL

Reiss received a failing grade in the small animal general surgery rotation.

In a letter dated April 3, 2019, Dr. Cornell informed Reiss that she had been

automatically dismissed from the DVM program, having failed the general surgery

rotation and having previously received an F and a D during her first semester of

veterinary school.3 The dismissal letter sent to Reiss indicated in bold font what

steps Reiss could take to appeal the grade or dismissal:

3 TAMU dismissed Reiss from the DVM program twice previously because of her grades.

In addition to the D and F Reiss received in the fall of 2015 (before she had requested

accommodations), Reiss received a D in a gross anatomy course in the spring of 2016,

resulting in her first automatic dismissal from the program. Reiss appealed her grade in

gross anatomy, attributing the grade to TAMU’s delay in providing a height-adjustable

table and a chair with lumbar support. TAMU allowed Reiss to remediate gross anatomy

and readmitted her to the DVM program after she earned a C in the course.

Reiss’s second automatic dismissal occurred after she earned a D in a small animal

internal medicine rotation. Reiss initiated informal and formal grade appeals, attributing

the grade to a respiratory infection and other extenuating circumstances. Ultimately,

TAMU readmitted Reiss to the program after a committee found that the rotation

instructor “did not fully explain and define grading criteria” in the syllabus. Dkt. 45-1 at

200.

Students who have been dismissed from the DVM program for academic reasons have the right to the

following actions:

e Initiate a grade appeal process for the grade of F earned in the Small Animal General Surgery rotation.

Grounds for appeal as listed in the Professional Student Handbook are related to the establishment of

proof that there was capricious or discriminatory academic evaluation. If you wish to appeal this

grade, you must notify me in writing within 10 business days after receipt of this email OR if you

receive a medical deferral, 10 days after the completion of a medical deferral. This letter should state

the type of appellate option you choose (formal or informal) and address how the grading was

capricious or discriminatory, as stated in the Professional Student Handbook, section 4.9.K-N. If the

grade appeal is denied, you may choose to appeal for readmission as is outlined below.

OR

e You may choose not to appeal the grade but instead appeal for readmission into to the DVM program.

In order to appeal for readmission, you must notify me in writing within 10 business days after

receipt of this email OR if you receive a medical deferral, 10 days after the completion of a medical

deferral. The request for readmission must include the criteria outlined in the Professional Student

Handbook Section 7 under Readmission to the Professional Program.

Dkt. 45-1 at 160.

On April 9, 2019, almost one week after Reiss received notice of her

dismissal for poor academic performance, she requested a medical deferral from

the DVM program. TAMU allows medical deferrals for up to one year, and TAMU

granted Reiss’s medical deferral with an effective date of March 25, 2019. The letter

to Reiss granting the deferral clearly states that Reiss could delay pursuing the

appeal process until she returned from medical deferral:

Additionally, 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 you earned on Small Animal General Surgery - rotation 2018V-22

- or if you wish to appeal for readmission to the DVM program. Based on the current date of estimated return to clinical

rotations of May 6, 2019, failure to notify Dr. Karen Comell in the Professional Programs Office by May 16, 2019 at 5

pm of your intent to either file a grade appeal or appeal for readmission will result in the inability to proceed in clinical

rotations or complete the DVM degree.

Dkt. 45-1 at 163.

F. DISABILITY SERVICES DENIES REISS’S SECOND ACCOMMODATION

REQUEST, FINDING THE REQUEST UNREASONABLE

Although Reiss was on medical deferral, she submitted an accommodation

request form, asking to complete her remaining rotations at alternative locations

in Dallas—Forth Worth. Per TAMU’s curriculum, Reiss still needed to complete

Houston Society for the Prevention of Cruelty to Animals and small animal

emergency rotations, in addition to the small animal general surgery rotation that

Reiss failed. Two of the three rotations take place at TAMU, and all three are

supervised by TAMU professors or clinicians. A committee responsible for

reviewing accommodation requests informed Reiss on May 10, 2019, that it denied

her request because her preferred accommodations were unreasonable. The

committee proposed the following alternative accommodations:

1) Disability Services, a vet school representative, and clinical

supervisors will meet with Reiss before each rotation to review the

accommodations and discuss any concerns from Reiss or the

supervisors about how to provide them.

2) Disability Services will meet with Reiss weekly to make sure that

accommodations are being provided and discuss any concerns.

3) Disability Services will work with Student Counseling Services to

determine if additional counseling sessions can be provided if

Reiss seeks counseling on campus.

4) Disability Services will review new accommodation requests and

then discuss with Reiss how they should be handled.

Reiss found these alternative accommodations unsatisfactory, stating that

she “had already tried them all and we know how that ended up—with [me] in the

hospital” and that none of the accommodations addressed how to prevent bullying.

Dkt. 51 at 11–12.

In a subsequent phone conversation, Dr. Orr informed Reiss that she needed

to discuss her discrimination concerns with TAMU’s office for civil rights, who

Reiss had already contacted about her bullying concerns. Reiss appealed the

committee’s decision, and on August 1, 2019, Dr. Orr told Reiss in an email that

she decided to uphold the committee’s denial of Reiss’s accommodation request.

On August 8, 2019, Reiss emailed Dr. Eleanor Green (“Dr. Green”), a Dean

at the College of Veterinary Medicine, indicating that she wished to return to active

student status at TAMU. In response, Dr. Green reminded Reiss of the procedure

for appealing her grade or dismissal, noting that the procedure is a “lock-step

process” and specifically advising Reiss that “we cannot change your student status

until you move forward with the appeal process, which cannot happen until you

indicate to Dr. Cornell that you are ready to return from the medical deferral.” Dkt.

45-1 at 172.

Reiss acknowledges that she never appealed her failing grade or applied for

readmission to the DVM program, and that her communication with Disability

Services ceased in August 2019. See Dkt. 44-2 at 54–55.

LEGAL STANDARD

Summary judgment is appropriate “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). A dispute of material fact is “genuine” if the

evidence would allow a reasonable jury to find in favor of the nonmovant. See

Rodriguez v. Webb Hosp. Corp., 234 F. Supp. 3d 834, 837 (S.D. Tex. 2017). The

moving party bears the burden of demonstrating the absence of a genuine issue of

material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once satisfied,

the burden shifts to the nonmovant to show the existence of a genuine fact issue

for trial. See id. at 324. To do so, the “nonmovant must identify specific evidence

in the record and articulate how that evidence supports that party’s claim.” Brooks

v. Houston Indep. Sch. Dist., 86 F. Supp. 3d 577, 584 (S.D. Tex. 2015).

In ruling on a motion for summary judgment, I must construe “the evidence

in the light most favorable to the nonmoving party and draw all reasonable

inferences in that party’s favor.” Cadena v. El Paso County, 946 F.3d 717, 723 (5th

Cir. 2020). It is not my role to weigh the evidence or evaluate its credibility, as

those are fact questions for the jury to decide. See Heinsohn v. Carabin & Shaw,

P.C., 832 F.3d 224, 245 (5th Cir. 2016) (holding that a district court makes an

improper credibility determination when it weighs the evidence or chooses which

testimony to credit and which to discard). That said, I am “not required to accept

the nonmovant’s conclusory allegations, speculation, and unsubstantiated

assertions which are either entirely unsupported, or supported by a mere scintilla

of evidence.” Id. (quotation omitted).

DISCUSSION

A. SOVEREIGN IMMUNITY

Defendants first argue that the Eleventh Amendment bars Reiss’s ADA

claims against TAMU because the university is entitled to sovereign immunity as

an arm of the state of Texas.4 Although Reiss failed to respond to this argument,

summary judgment “cannot be granted simply because there is no opposition.”

Hibernia Nat’l Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d 1277,

1279 (5th Cir. 1985).

In most circumstances, the assertion of Eleventh Amendment immunity

challenges a court’s subject matter jurisdiction and must be resolved before a

district court may address the merits of the underlying claim. See United States v.

Tex. Tech Univ., 171 F.3d 279, 285–86 (5th Cir. 1999). However, the Fifth Circuit

has held that a district court “should first address whether the conduct challenged

by the plaintiff violates Title II” of the ADA before “address[ing] whether Title II

validly abrogates sovereign immunity.” Brockman v. Tex. Dep’t of Crim. Just., No.

09-40940, 397 F. App’x 18, 23 (5th Cir. 2010). Proceeding in this manner will

prevent a district court “from unnecessarily addressing the constitutional issue of

whether the ADA may validly abrogate sovereign immunity.” Id. “Should Plaintiff’s

Title II claim fail on the merits, the issue of the [defendant’s] potential Eleventh

Amendment immunity from this claim would become moot.” Gilmore v. Miss.

Coast Coliseum Comm’n, 1:12-cv-183, 2013 WL 1194706, at *6 (S.D. Miss. Mar. 22,

4 As an aside, it is undisputed that Reiss’s Rehabilitation Act claim is not barred by

sovereign immunity. That is because “[a] state entity waives sovereign immunity under

§ 504 of the Rehabilitation Act by accepting federal financial assistance.” Block v. Tex. Bd.

of Law Exam’rs, 952 F.3d 613, 619 (5th Cir. 2020); see also Eustice v. Tex. A&M Univ.,

No. 4:15-cv-03180, 2016 WL 8710444, at *9 (S.D. Tex. Sept. 30, 2016) (“[T]he state’s

receipt of federal funds is a knowing and voluntary waiver of its sovereign immunity as to

claims arising under Section 504 of the [Rehabilitation Act].”). TAMU does not, however,

waive immunity under the ADA simply because it is the recipient of federal financial

assistance. See Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 276 n.4 (5th Cir. 2005).

2013). For that reason, I will first analyze Reiss’s claims on the merits and then,

only if I find that summary judgment is not warranted on Reiss’s claims, conduct

a sovereign immunity analysis.

B. REISS’S DISCRIMINATION CLAIMS FAIL BECAUSE SHE CANNOT SHOW

THAT HER DISABILITY WAS EITHER A MOTIVATING FACTOR OR THE

SOLE REASON FOR HER DISMISSAL

1. Legal Standard

“The Rehabilitation Act and the ADA both prohibit discrimination against

qualified individuals with disabilities; they employ many of the same legal

standards and offer the same remedies.” Maples v. Univ. of Tex. Med. Branch, 901

F. Supp. 2d 874, 878 (S.D. Tex. 2012), aff’d, 524 F. App’x 93 (5th Cir. 2013). To

establish a discrimination claim under either the Rehabilitation Act or the ADA “in

the context of a student excluded from an educational program, a plaintiff must

prove 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.” Id. at 879 (cleaned up).

As then-District Judge Gregg Costa once noted:

The only difference between the ADA and Rehabilitation Act in the

application of these elements concerns the final requirement. Under

section 504 of the Rehabilitation Act, ‘[n]o otherwise qualified

individual with a disability . . . 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.’ 29 U.S.C. § 794(a) (emphasis

added). The standard in Title II of the ADA more broadly prohibits

exclusion ‘by reason of [a] disability.’ Compare 42 U.S.C. § 12132[,]

with 29 U.S.C. § 794(a). Thus, while section 504 establishes a ‘sole

cause’ test for causation, the ADA instead establishes a ‘motivating

factor’ test.

Id. (quoting Pinkerton v. Spellings, 529 F.3d 513, 516–19 (5th Cir. 2008)).

2. Analysis

Defendants argue that summary judgment is warranted on Reiss’s

discrimination claims under the Rehabilitation Act and ADA because Reiss

“cannot show that her disability was in any way related to her dismissal from

TAMU (as required by the ADA), much less the ‘sole reason’ for her dismissal (as

required by the [Rehabilitation Act]).” Dkt. 44 at 32. Reiss fails to directly respond

to this argument, let alone identify any evidence indicating that her disability was

a motivating factor (or the sole reason) in TAMU’s decision to dismiss her from the

DVM program.5 Upon my review, the summary judgment evidence conclusively

establishes that TAMU dismissed Reiss from the DVM program because of her

academic performance. Specifically, the summary judgment evidence shows that

TAMU dismissed Reiss because she received an F in her small animal general

surgery rotation, and her failing grade resulted from her deficient performance in

class unrelated to her disability.

Critically, Reiss never argues that her disability motivated TAMU to dismiss

her from the DVM program. Even if she had, the evidence indicates otherwise. For

one, Reiss did not contact Disability Services or anyone in the administration about

accommodations concerns during the spring of 2019. See Dkt. 44-2 at 25 (Reiss

testifying that she “d[id]n’t believe [she] talked about” the lack of a standing desk

with Dr. Orr); id. at 31–32 (Reiss testifying that she “d[id]n’t recall” contacting Dr.

Orr about the lack of a cart); Dkt. 44-6 at 6 (Dr. Orr testifying that she did not think

that Reiss contacted her about accommodations issues since the equine rotation in

July 2018); Dkt. 45-1 at 157–58 (an email exchange between Reiss and Dr. Cornell,

where Reiss did not address accommodations). Instead, all of the evidence

documents Reiss’s poor performance in the general surgery rotation with Dr.

Richards. Tellingly, Dr. Richards communicated to Reiss multiple instances of

5 It is not entirely clear whether Reiss intends to bring discrimination claims under the

ADA and Rehabilitation Act. Her complaint includes headers alleging

“DISCRIMINATION AND FAILURE TO ACCOMMODATE” causes of action under the

ADA and Rehabilitation Act, yet the substance of the Amended Complaint focuses solely

on her failure-to-accommodate claims. Dkt. 13 at 12–14 (emphasis added). In an

abundance of caution and because Defendants address discrimination claims in their

Motion for Summary Judgment, I will discuss the merits of Reiss’s discrimination claims,

whether she intended to bring them or not.

Reiss’s concerning performance in the classroom and explained what Reiss needed

to do to improve her performance in the rotation. Additionally, no evidence

indicates that TAMU “strayed from [the program’s] standard policies and

procedures in evaluating” and ultimately dismissing Reiss from the DVM program.

Hebert v. Ascension Par. Sch. Bd., 396 F. Supp. 3d 686, 707 (M.D. La. 2019)

(finding a genuine issue of material fact existed where “Plaintiff present[ed]

evidence from which an inference could be drawn that Defendant either strayed

from its standard policies and procedures when it came to evaluating Plaintiff,

and/or Defendant failed to apply performance evaluations and standards equally

to its teachers.”).

Given that the summary judgment record does not evince a discriminatory

motive on TAMU’s part, I must “defer to [Dr. Richard]’s professional judgment

that” Reiss’s performance in the general surgery rotation merited a failing grade.

Maples, 901 F. Supp. 2d at 883 (citing Regents of Univ. of Mich. v. Ewing, 474

U.S. 214, 225 (1985)). Accordingly, I find that Reiss’s discrimination claims under

the ADA and Rehabilitation Act fail because she does not show that her disability

was a motivating factor (much less the sole factor) in her dismissal from the DVM

program.

C. REISS CANNOT PROVE FAILURE TO ACCOMMODATE BECAUSE SHE IS NOT

QUALIFIED AND SHE REQUESTED UNREASONABLE ACCOMMODATIONS

1. Legal Standard

To prevail on a failure-to-accommodate claim, a plaintiff must make three

showings: “(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)

(quotations omitted). Relating to the third element, “[i]t is the plaintiff’s burden to

request reasonable accommodations.” Jenkins v. Cleco Power, LLC, 487 F.3d 309,

315 (5th Cir. 2007).

2. Analysis

Defendants dispute only the first and third elements of a

failure-to-accommodate claim. First, Defendants argue that Reiss “is not qualified

because she does not satisfy the DVM program’s essential academic performance

requirements.” Dkt. 44 at 23. Second, Defendants argue that Reiss requested

unreasonable accommodations after her dismissal from the DVM program. See id.

at 25. For the reasons explained below, I agree with Defendants. Therefore,

summary judgment should be granted on Reiss’s failure-to-accommodate claims.

a. Reiss Is Not a Qualified Individual with a Disability

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 same is true under the Rehabilitation Act, which applies

to “otherwise qualified individual[s].” 29 U.S.C. § 794(a); see also Se. Cmty. Coll.

v. Davis, 442 U.S. 397, 406 (1979) (“An otherwise qualified person is one who is

able to meet all of a program’s requirements in spite of his handicap.”).

Defendants argue that Reiss is not qualified for the DVM program because

Reiss “does not satisfy the DVM program’s essential academic performance

requirements” and “never appealed her failing grade [in the general surgery

rotation] or appealed for readmission to the DVM program.” Dkt. 44 at 23–24. As

I established in the previous section, the evidence conclusively shows that Reiss

failed the general surgery rotation as a result of her poor academic performance.

In other words, Reiss failed to meet the DVM program’s essential performance

requirements. See McGregor v. La. State Univ., 3 F.3d 850, 860 (law student who

did not meet the school’s minimum cumulative GPA requirements was not

otherwise qualified to remain in the program). There were two routes Reiss could

have taken to, once again, qualify for the DVM program: appeal her failing grade

or apply for readmission. She took neither of these steps.

Reiss argues that “[i]t is disingenuous for [Defendants] to claim [Reiss] was

somehow not qualified for the [DVM] program” where she “had already passed a

national licensing exam and been offered several jobs.” Dkt. 51 at 17. This argument

misses the boat. The meaning of “qualified” under the ADA and Rehabilitation Act

relates only to the program at issue; here, that is the DVM program, and Reiss’s

documented poor academic performance in the DVM program made her

unqualified for the program.

Additionally, Reiss argues:

[Defendants] claim[] Reiss had been dismissed from the program

because she did not file a grade appeal or reapply for admission. But

[they] told Reiss a different story when [they] told her that she could

initiate her grade appeal or reapply for admission when she completed

her medical deferral. And then, [Defendants] denied Reiss what she

needed to return from that medical deferral, namely, allowing her to

continue her remaining rotations away from campus.

Id. This argument goes nowhere. Defendants never claimed that Reiss was

dismissed from the DVM program because she did not file a grade appeal or apply

for readmission. She was automatically dismissed from the DVM program due to

her poor grades. As Defendants point out, Reiss remained dismissed from the

program because she did not file a grade appeal or apply for readmission. Even if

Reiss’s requested accommodations were reasonable—and, as discussed below, they

were not—Reiss still would have had to first return to active student status by filing

a grade appeal or applying for readmission to receive any accommodations.

Accordingly, Reiss is not a qualified individual within the meaning of the

ADA or the Rehabilitation Act. Summary judgment on Reiss’s failure-to-

accommodate claims is warranted based solely on this finding. Still, I will proceed

to analyze whether Reiss requested reasonable accommodations after she was

dismissed from the DVM program.

b. Reiss Requested Unreasonable Accommodations

The ADA and Rehabilitation Act do “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 423). A plaintiff is entitled to

her requested accommodations “only if [s]he can demonstrate that the

accommodations constitute reasonable deviations from the [program’s] usual

requirements” that do not sacrifice the integrity of the program. Id. at 858. A

modification is unreasonable if it requires “a fundamental alteration in the nature

of the program.” Sch. Bd. of Nassau Cnty., Fla. v. Arline, 480 U.S. 273, 287 n.17

(1987) (cleaned up).

While on medical deferral, Reiss requested to complete her remaining

clinical rotations at alternative locations led by non-TAMU professors and

clinicians. Defendants argue that this accommodation—permitting a student to

“complete core clinic rotations at personally selected, offsite locations or via

externships”—would unreasonably alter the DVM program and “provide [Reiss]

with preferential treatment.” Dkt. 44 at 27.

But a larger problem exists. As Defendants point out, Reiss’s requested

accommodation necessarily entails readmitting her to a program from which she

was dismissed for academic reasons that she did not appeal or address. In effect,

“to provide [Reiss’s] requested accommodation, [Defendants] would be required

to ignore, override, or reverse [her] previous dismissal for unsatisfactory academic

performance.” Profita v. Regents of the Univ. of Colo., 709 F. App’x 917, 920 (10th

Cir. 2017). This accommodation is unreasonable under the ADA and

Rehabilitation Act. As established above, Reiss was not dismissed from the DVM

program by reason of her disability. “The disability statutes do not require that a

disabled person properly terminated from a job or program be given a greater

opportunity for reinstatement than that given to a terminated person who is not

disabled.” Id. at 924. To be readmitted to the DVM program, TAMU policy

required Reiss to appeal her grade in the general surgery rotation or apply for

readmission within 10 days after the completion of her medical deferral, which

expired on March 25, 2020. See Dkt. 45-1 at 160, 163. She did not do so. This policy

applies to all students in the DVM program at TAMU; Reiss was not treated

differently. In sum, to readmit Reiss to the DVM program without requiring her to

first appeal her grade or appeal for readmission would amount to a “second

chance,” which “is not an accommodation as contemplated by the ADA.” Burch v.

Coca-Cola Co., 119 F.3d 305, 319 n.14 (5th Cir. 1997); see also Maples, 901 F. Supp.

2d at 882–83. Accordingly, the accommodations that Reiss requested while on

medical deferral were unreasonable.

* * *

Given my findings that Reiss is not a qualified individual under the ADA or

Rehabilitation Act and that Reiss requested unreasonable accommodations,

Reiss’s failure-to-accommodate claims fail. Summary judgment should be granted

on these claims.

CONCLUSION

For the reasons stated above, I recommend that Defendants’ Motion for

Summary Judgment (Dkt. 44) be GRANTED.

The Clerk shall provide copies of this Memorandum and Recommendation

to the respective parties who have 14 days from receipt to file written objections

under Federal Rule of Civil Procedure 72(b) and General Order 2002–13. Failure

to file written objections within the time period mentioned shall bar an aggrieved

party from attacking the factual findings and legal conclusions on appeal.

SIGNED this 9th day of August 2023.

______________________________

ANDREW M. EDISON

UNITED STATES MAGISTRATE JUDGE