Danyal Shaikh v. Texas A&M Univ Clge of Medc, et a

Case: 16-20793 Document: 00514521741 Page: 1 Date Filed: 06/20/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

No. 16-20793

Fifth Circuit

FILED

June 20, 2018

DANYAL SHAIKH, Lyle W. Cayce

Clerk

Plaintiff - Appellant

v.

TEXAS A&M UNIVERSITY COLLEGE OF MEDICINE; MICHAEL K.

YOUNG; PAUL OGDEN,

Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:16-CV-591

Before DENNIS, CLEMENT, and GRAVES, Circuit Judges.

PER CURIAM:*

During his third year as a medical student at Texas A&M University

College of Medicine (the “College”), Danyal Shaikh began suffering health

problems caused by a pituitary tumor. After Shaikh’s condition prevented him

from passing a medical licensing exam by a certain deadline, the College gave

him the option of being dismissed from the program or withdrawing. He

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

CIR. R. 47.5.4.

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withdrew and was denied readmission on two subsequent occasions. Shaikh

sued the College and Texas A&M University President Michael Young, in his

official capacity, under 42 U.S.C. § 1983 (“Section 1983”), claiming violation of

his rights under the Due Process Clause of the Fourteenth Amendment.

Shaikh also sued the College under two federal statutes prohibiting

discrimination against disabled individuals: Section 504 of the Rehabilitation

Act of 1973 (“Section 504”), 29 U.S.C. § 794, and Title II of the Americans with

Disabilities Act (the “ADA”), 42 U.S.C. § 12131 et seq. The district court

dismissed Shaikh’s Section 1983 and ADA claims for lack of subject-matter

jurisdiction pursuant to Rule 12(b)(1) and his Section 504 claim for failure to

state a claim upon which relief can be granted pursuant to Rule 12(b)(6). We

affirm in part and reverse in part.

I. BACKGROUND

The following facts are taken from Shaikh’s second amended complaint.

In May 2010, Shaikh enrolled as a medical student at Texas A&M University

College of Medicine. In May 2012, as he was preparing to take Step 1 of the

United States Medical Licensing Examination (the “USMLE Step 1”), Shaikh

began having trouble studying and concentrating on school work. Shaikh had

never experienced these problems before and expressed concerns to Dr. Gary

McCord, the College’s Dean of Student Affairs. Shaikh’s symptoms persisted,

and in September 2012, he emailed Dr. McCord, complaining once again about

his difficulties studying. Dr. McCord advised Shaikh to use the free mental and

behavioral health visits available to medical students at the College.

In late November 2012, Shaikh took the USMLE Step 1 but did not pass

due to the ongoing health problems he was experiencing. In late January 2013,

Dr. McCord advised Shaikh to take a one-year leave of absence so that he could

study effectively for the USMLE Step 1. Shaikh followed Dr. McCord’s

recommendation, but his condition worsened over the course of the following

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year, partly because university medical staff misdiagnosed him as suffering

from test phobia, anxiety, and depression. During the leave of absence, Shaikh

“experienced nervousness, dizziness, severe headaches, nausea, diarrhea,

constipation, upset stomach, stomach pain, eye pain, abnormal ejaculation,

difficulty having an orgasm, dry mouth, decreased impulse control, irritability,

weight gain without a change in diet, increased lethargy, change in sleep

patterns, worsened inability to concentrate, lack of motivation, increased

anxiety, loss of sexual desire, and severe emotional distress.” The College’s

Student Promotion Committee urged Shaikh to retake the USMLE Step 1 by

certain deadlines during his leave of absence—deadlines which Shaikh

maintains were “arbitrary”—or face dismissal, but he was unable to comply

with those demands due to his condition.

Shaikh’s leave of absence ended in January 2014. At that point, the

Student Promotion Committee voted to dismiss him from the medical school.

Prior to the onset of his symptoms, Shaikh had never failed any of his classes,

and he had passed all the required curriculum necessary to progress to his

third year of medical school, including his third-year clinical rotations, which

he passed with honors.

When Shaikh appealed the dismissal, the College’s Appeal Committee

gave him the choice of withdrawing from the school or being dismissed. Shaikh

chose to withdraw because that “gave him an option to be re-admitted into the

[College] or other medical colleges.” After filing for withdrawal, Shaikh met

with Dr. McCord, who told him that the College’s dean, Dr. Paul Ogden, had

indicated that if Shaikh were to apply for readmission at some point, Dr. Ogden

“would entertain [Shaikh’s] being readmitted and having a chance to take the

[USMLE Step 1] prior to signing up for any classes.”

Shaikh applied for readmission to the College in the fall of 2014. During

his admission interviews, members of the College faculty told Shaikh that they

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wanted him to return to the school and that he had “a good chance” of being

accepted back as a third-year student. Shaikh also obtained “a clearance from

a psychiatrist.” Nonetheless, the College denied his application for

readmission. Shaikh subsequently met with the College’s Dean of Admission,

who told Shaikh “that the reason he [had been] denied readmission was

because ‘he was not an acceptable applicant and that he was a liability for

psychiatric reasons.’” Shaikh also met with Dr. Ogden, who encouraged him to

apply again the following year.

Shaikh applied for readmission a second time in June 2015 but was again

rejected. To strengthen his application, Shaikh had enrolled in an

anesthesiology program at another university. Shaikh had also attempted to

retake the USMLE Step 1 but was not permitted to do so because he was not

enrolled as a medical student. Around the time of his second application, the

underlying cause of Shaikh’s health problems was finally identified: he was

diagnosed with a tumor of the pituitary gland (a part of the endocrine system

located near the brain) called a prolactinoma. The tumor caused “an increase

in the production of a hormone called prolactin” and “caused [Shaikh’s]

testosterone level to be very low,” leading to “loss of memory and concentration,

depression, anxiety, extreme fatigue, and muscle weakness.” Shaikh

“underwent immediate medical protocol which reversed the growth of [the]

tumor . . . within four months.” Shaikh maintains that his “current medication

has no side effects” and that he “was and continues to be capable of returning

to [m]edical school.”

In March 2016, Shaikh filed suit against the College and Young. The

College and Young moved to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of

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the Federal Rules of Civil Procedure. The district court granted the motion and

dismissed all of Shaikh’s claims. Shaikh now appeals. 1

II. STANDARD OF REVIEW

We review de novo a district court’s dismissal under Rules 12(b)(1) and

12(b)(6). Quinn v. Guerrero, 863 F.3d 353, 363 (5th Cir. 2017); Ramming v.

United States, 281 F.3d 158, 161 (5th Cir. 2001).

Rule 12(b)(1) provides for dismissal due to a “lack of subject-matter

jurisdiction.” Dismissal under Rule 12(b)(1) is appropriate if a claim is barred

by state sovereign or Eleventh Amendment immunity. Meyers ex rel. Benzing

v. Texas, 410 F.3d 236, 240–41 (5th Cir. 2005); United States v. Tex. Tech Univ.,

171 F.3d 279, 285 n.9 (5th Cir. 1999); Warnock v. Pecos Cty., 88 F.3d 341, 343

(5th Cir. 1996) (“Because sovereign immunity deprives the court of jurisdiction,

the claims barred by sovereign immunity can be dismissed only under Rule

12(b)(1) and not with prejudice.”). “The burden of proof for a Rule 12(b)(1)

motion to dismiss is on the party asserting jurisdiction.” Ramming, 281 F.3d

at 161. A court may dismiss under Rule 12(b)(1) “on any one of three separate

bases: (1) the complaint alone; (2) the complaint supplemented by undisputed

facts evidenced in the record; or (3) the complaint supplemented by undisputed

facts plus the court’s resolution of disputed facts.” Williamson v. Tucker, 645

F.2d 404, 413 (5th Cir. 1981). “When a Rule 12(b)(1) motion is filed in

conjunction with other Rule 12 motions, the court should consider the Rule

12(b)(1) jurisdictional attack before addressing any attack on the merits.”

Ramming, 281 F.3d at 161.

1 The district court also dismissed Shaikh’s claims against two other defendants, Dr.

Ogden and Michael Brown, a university psychiatrist who treated Shaikh, as well as Shaikh’s

claim under 42 U.S.C. § 1981. Shaikh filed a general notice of appeal from the district court’s

order of dismissal but abandoned any challenge to the dismissal of these additional claims

by failing to address them on appeal.

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Rule 12(b)(6) provides for dismissal due to a “failure to state a claim upon

which relief can be granted.” To survive a Rule 12(b)(6) motion, “a complaint

must contain sufficient factual matter, accepted as true, ‘to state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The factual

allegations must “‘raise [the plaintiff’s] right to relief above the speculative

level’” but need not be detailed. Lee v. Verizon Commc’ns, Inc., 837 F.3d 523,

533 (5th Cir. 2016) (quoting Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.

2007)). When evaluating a Rule 12(b)(6) motion, the court’s review is limited

to the live complaint, any documents attached to that complaint, and any

documents attached to the motion to dismiss that are “central to the claim and

referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank

PLC, 594 F.3d 383, 387 (5th Cir. 2010) (citing Collins v. Morgan Stanley Dean

Witter, 224 F.3d 496, 498–99 (5th Cir. 2000)). “‘[A] motion to dismiss

under 12(b)(6) is viewed with disfavor and is rarely granted.’” Leal v. McHugh,

731 F.3d 405, 410 (5th Cir. 2013) (quoting Turner v. Pleasant, 663 F.3d 770,

775 (5th Cir. 2011)).

III. DISCUSSION

A. Section 1983

“Section 1983 provides a cause of action when a person has been deprived

of federal rights under color of state law.” D.A. ex rel. Latasha A. v. Houston

Indep. Sch. Dist., 629 F.3d 450, 456 (5th Cir. 2010). Shaikh claims that the

College and Young violated his rights under the Due Process Clause of the

Fourteenth Amendment by, inter alia, requiring him to retake the USMLE

Step 1 by arbitrary deadlines, constructively dismissing him from the College,

and misleading him about the readmissions process. The district court

concluded that the College and Young were entitled to state sovereign

immunity from suit and dismissed Shaikh’s Section 1983 claims on that basis.

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On appeal, Shaikh does not address the district court’s sovereign immunity

determination and has therefore forfeited any challenge to that ruling. Raj v.

La. State Univ., 714 F.3d 322, 327 (5th Cir. 2013). We therefore affirm the

district court’s dismissal of Shaikh’s Section 1983 claims pursuant to Rule

12(b)(1). We do not reach the merits of those claims. Koehler v. United States,

153 F.3d 263, 267 (5th Cir. 1998) (“[S]overeign immunity is jurisdictional and,

therefore, deprives this court of the ability to hear the merits of [a] claim

altogether.”).

B. Section 504 of the Rehabilitation Act

Section 504 of the Rehabilitation Act prohibits “any program or activity

receiving Federal financial assistance” from discriminating against disabled

individuals. 29 U.S.C. § 794(a); 2 see also D.A., 629 F.3d at 453 (“[Section]

504 . . . broadly prohibit[s] discrimination against disabled persons in federally

assisted programs or activities.”). Shaikh claims that the College violated

Section 504 by constructively dismissing him from the medical school program

and by denying his applications for readmission. The College does not dispute

that it has waived immunity from suit under Section 504 by accepting federal

funding. See 42 U.S.C. § 2000d-7; Miller v. Tex. Tech Univ. Health Scis.

Ctr., 421 F.3d 342 (5th Cir. 2005) (en banc); Pace v. Bogalusa City Sch. Bd.,

403 F.3d 272 (5th Cir. 2005) (en banc). We therefore evaluate the dismissal of

Shaikh’s Section 504 claim under Rule 12(b)(6).

2 The statute’s text states, in pertinent part:

No otherwise qualified individual with a disability in the United States, as

defined in section 705(20) of this title, 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 or under any program or activity conducted by any

Executive agency or by the United States Postal Service.

29 U.S.C. § 794(a).

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To state a claim for relief under Section 504, a plaintiff must allege that

she or he was: (1) an “individual with a disability”; (2) “otherwise qualified” for

the program; and (3) excluded from, denied the benefits of, or otherwise

subjected to discrimination under the program “solely by reason of her or his

disability.” 29 U.S.C. § 794(a). We consider each of these elements in turn.

1. “Individual with a Disability”

Under the Rehabilitation Act, an “individual with a disability” means

any person who has a “disability,” as that term is defined in the ADA. 29 U.S.C.

§§ 794(a), 705(20)(B); see also Ball v. LeBlanc, 792 F.3d 584, 596 & n.10 (5th

Cir. 2015). The ADA defines “disability” as: “(A) a physical or mental

impairment that substantially limits one or more major life activities of such

individual; (B) a record of such an impairment; or (C) being regarded as having

such an impairment . . . .” 42 U.S.C. § 12102(1). “[M]ajor life activities

include . . . learning, reading, concentrating, thinking, . . . and working,” as

well as “the operation of a major bodily function, including . . . neurological,

brain, . . . [and] endocrine . . . functions.” Id. § 12102(2)(A)–(B). The ADA

mandates that “[t]he definition of disability . . . be construed in favor of broad

coverage of individuals . . . to the maximum extent permitted by the terms of

[the statute].” Id. § 12102(4)(A).

The pituitary tumor that afflicted Shaikh is clearly a “physical

impairment.” See 45 C.F.R. § 84.3(j)(2)(i) (defining “physical or mental

impairment” to include “[a]ny physiological disorder or condition . . . affecting

one or more . . . body systems,” including the “endocrine” system). Furthermore,

the factual allegations in Shaikh’s complaint, taken as true, plausibly indicate

that, from mid-2012 through the College’s denial of his second application for

readmission in 2015, this impairment substantially limited one or more of

Shaikh’s major life activities, including his endocrine functions and his ability

to learn, concentrate, and think. The fact that Shaikh began receiving effective

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medical treatment around the time of his second application does not establish

that he no longer had a disability when the College denied that application,

and drawing any such inference would contravene the ADA’s broad definition

of “disability” and the Rule 12(b)(6) standard. See 42 U.S.C. § 12102(4)(D) (“An

impairment that is . . . in remission is a disability if it would substantially limit

a major life activity when active.”); id. § 12102(4)(E)(i)(I) (“The determination

of whether an impairment substantially limits a major life activity shall be

made without regard to the ameliorative effects of mitigating measures such

as . . . medication.”); Leal, 731 F.3d at 410 (on a Rule 12(b)(6) motion, a court

must “[a]ccept[] the well-pleaded facts as true and consider[] them, and the

inferences to be drawn therefrom, in the light most favorable to [the

plaintiff]”). 3

Because Shaikh has adequately alleged that he was actually disabled at

all times relevant to this suit, we do not decide whether the factual allegations

in his complaint also satisfy the “regarded as” portion of the ADA’s definition

of “disability.”

2. “Otherwise Qualified”

To be “otherwise qualified” for a postsecondary education program, an

individual with a disability must satisfy the program’s “essential”

requirements, with or without the aid of reasonable accommodations.

McGregor v. La. State Univ., 3 F.3d 850, 855 (5th Cir. 1993); Halpern v. Wake

Forest Univ. Health Scis., 669 F.3d 454, 462 (4th Cir. 2012); Zukle v. Univ. of

Cal., 166 F.3d 1041, 1046 (9th Cir. 1999). 4 A requirement is “essential” if “the

3 Hale v. King, 642 F.3d 492 (5th Cir. 2011) (per curiam), applied the more restrictive

definition of “disability” in effect prior to Congress’s enactment of the ADA Amendments Act

of 2008, id. at 499, and is therefore inapposite here.

4 In McGregor, this court cited Department of Health and Human Services regulations

interpreting the Rehabilitation Act. 3 F.3d at 855 (citing 45 C.F.R. § 84.3(k) (1992)). The

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nature of the program would be fundamentally altered” without it. Mary Jo C.

v. N.Y. State & Local Ret. Sys., 707 F.3d 144, 158 (2d Cir. 2013) (citation and

internal quotation marks omitted); accord Pottgen v. Mo. State High Sch.

Activities Ass’n, 40 F.3d 926, 930 (8th Cir. 1994); see also Credeur v. Louisiana,

860 F.3d 785, 792 (5th Cir. 2017) (ADA case). 5 By contrast, an individual does

not need to satisfy non-essential program requirements to be “otherwise

qualified.” See Brennan v. Stewart, 834 F.2d 1248, 1261–62 (5th Cir. 1988)

(recognizing that the term “otherwise qualified” “cannot refer only to those

already capable of meeting all the requirements—or else no reasonable

requirement could ever violate [Section] 504”); Chiari v. City of League City,

920 F.2d 311, 315 (5th Cir. 1991) (explaining, in a Section 504 employment

discrimination case, that an individual is “otherwise qualified” if he can

perform the “essential functions” of the job and that an “otherwise qualified”

individual cannot be fired due to an inability to perform non-essential,

“marginal” tasks).

current version of those regulations states, in pertinent part, that a “qualified handicapped

person”—i.e., an “otherwise qualified individual with a disability,” see Pottgen v. Mo. State

High Sch. Activities Ass’n, 40 F.3d 926, 929 n.3 (8th Cir. 1994)—means, “[w]ith respect to

postsecondary and vocational education services, a handicapped person who meets the

academic and technical standards requisite to admission or participation in the recipient’s

education program or activity.” 45 C.F.R. § 84.3(l)(3). Regulations issued by the Department

of Education contain identical language. 34 C.F.R. § 104.3(l)(3). These regulations are

consistent with the rule that an individual’s “otherwise qualified” status is assessed in terms

of a program’s “essential” requirements. See 34 C.F.R. § 104.44(a) (“Academic requirements

that the recipient can demonstrate are essential to the instruction being pursued by such

student or to any directly related licensing requirement will not be regarded as

discriminatory within the meaning of this section.” (emphasis added)); McGregor, 3 F.3d at

855 n.4 (“Technical [standards] are ‘all nonacademic admissions criteria that are essential to

participation in the program in question.’” (emphasis added) (quoting 45 C.F.R. pt. 84, App.

A)).

5 “The ADA and the Rehabilitation Act generally are interpreted in pari materia,”

Frame v. City of Arlington, 657 F.3d 215, 223 (5th Cir. 2011) (en banc), and caselaw

interpreting one statute is generally applicable to the other, Delano-Pyle v. Victoria Cty., 302

F.3d 567, 574 (5th Cir. 2002).

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According to his complaint, Shaikh “successfully passed all the required

curriculum” needed to progress to his third year of medical school and passed

his third-year clinical rotations with honors. These well-pleaded factual

allegations plausibly indicate that Shaikh satisfied the program’s “essential”

requirements at the time of his dismissal/withdrawal and that he was

therefore “otherwise qualified” to remain in the program and to obtain

readmission thereafter. Cf. McGregor, 3 F.3d at 860 (law student who did not

meet the school’s minimum cumulative GPA requirement was not “otherwise

qualified” to remain in the program).

While Shaikh also alleges that he did not pass or retake the USMLE Step

1 by the end of his leave of absence, nothing on the face of his complaint

establishes that doing so was an “essential” requirement of the program. The

College’s demand that Shaikh retake the exam during his leave of absence

suggests that was a requirement for remaining in the program, but it may well

have been a non-essential requirement, given the factual allegations before us

at this stage. 6 Nor was passing the USMLE Step 1 an essential requirement

6 Our conclusion in this regard does not, as the dissent asserts, “def[y] logic.” It is not

a logical imperative that satisfying a professional licensing requirement by a given date is

essential to an educational program’s nature or purpose. On the contrary, it is entirely

plausible that a particular medical school’s essential nature could entail the transfer of

medical knowledge to students, regardless of whether those students ultimately become

licensed to practice medicine in the United States. Shaikh’s academic success at the College

indicates that he possessed such knowledge. Presuming the opposite would exceed the bounds

of “judicial experience and common sense.” See Iqbal, 556 U.S. at 679.

In general, plaintiffs can state a plausible claim for relief under Section 504 without

pleading detailed facts about a particular program requirement. Those administering a

postsecondary education program “are entitled to some measure of judicial deference . . . , by

reason of their experience with and knowledge of the program in question.” Strathie v. Dep’t

of Transp., 716 F.2d 227, 231 (3d Cir. 1983). Due to Section 504’s remedial purpose, however,

judicial deference extends only so far as there is “a factual basis in the record reasonably

demonstrating” that the requirement at issue is necessary to “the essential nature of the

program.” Id.; see also 34 C.F.R. § 104.44(a) (“Academic requirements that the recipient can

demonstrate are essential to the instruction being pursued by such student or to any directly

related licensing requirement will not be regarded as discriminatory within the meaning of

this section.”); Rizzo v. Children’s World Learning Ctrs., Inc., 84 F.3d 758, 764 (5th Cir. 1996);

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for readmission, given the College’s statements and actions indicating that

Shaikh remained eligible to reenter the program after his withdrawal.

Because Shaikh plausibly alleges that he satisfied the medical school’s

essential requirements without a reasonable accommodation, we need not

determine whether he also plausibly alleges that he could have satisfied the

program’s requirements with a reasonable accommodation. See Barber v.

Nabors Drilling U.S.A., Inc., 130 F.3d 702, 710 (5th Cir. 1997) (explaining, in

an ADA employment discrimination case, that an individual’s ability to

perform non-essential job functions, with or without a reasonable

accommodation, is irrelevant to whether the individual is “otherwise

qualified”). 7

cf. Bates v. United Parcel Serv., Inc., 511 F.3d 974, 991 (9th Cir. 2007) (en banc) (noting, in

an ADA employment discrimination case, “that ‘much of the information which determines

th[e] essential functions [of a job] lies uniquely with the employer’” (quoting Benson v. Nw.

Airlines, Inc., 62 F.3d 1108, 1113 (8th Cir. 1995))). In contrast to a motion for summary

judgment, the limited scope of review permitted by a Rule 12(b)(6) motion to dismiss is not

well suited to this type of evidence-intensive inquiry.

7 A failure to provide a reasonable accommodation is just one of several theories that

can support a claim of disability discrimination under the Rehabilitation Act. Prewitt v. U.S.

Postal Serv., 662 F.2d 292, 305 & n.19 (5th Cir. 1981 Unit A); Nunes v. Mass. Dep’t of

Correction, 766 F.3d 136, 144–45 & n.7 (1st Cir. 2014). On a motion to dismiss, a court “must

examine the complaint to determine if the allegations provide for relief on any possible

theory.” Doss v. S. Cent. Bell Tel. Co., 834 F.2d 421, 424 (5th Cir. 1987) (emphasis added)

(citations and internal quotation marks omitted); see also Johnson v. City of Shelby, 135 S.

Ct. 346, 346 (2014); Homoki v. Conversion Servs., Inc., 717 F.3d 388, 402 (5th Cir. 2013) (“So

long as a pleading alleges facts upon which relief can be granted, it states a claim even if it

fails to categorize correctly the legal theory giving rise to the claim.” (internal quotation

marks and citation omitted)). We note, however, that, contrary to the College’s assertion, a

reasonable-accommodation-based claim does not require the disabled individual to have

“appl[ied] formally” for an accommodation. See EEOC v. Chevron Phillips Chem. Co., 570

F.3d 606, 621–22 (5th Cir. 2009) (A request for reasonable accommodation “does not have to

mention the ADA or use the phrase ‘reasonable accommodation.’ Plain English will suffice.”);

Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313–14 (3d Cir. 1999) (stating, in an ADA

employment discrimination case, that “[w]hat matters . . . are not formalisms about the

manner of the request, but whether the employee or a representative for the employee

provides the employer with enough information that, under the circumstances, the employer

can be fairly said to know of both the disability and desire for an accommodation.”).

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3. Discrimination “Solely by Reason of His Disability”

An individual with a disability is excluded from, denied the benefits of,

or otherwise subjected to discrimination under a program “solely by reason

of . . . his disability” if: (1) there is a “causal connection” between his disability

and the discriminatory action; and (2) his disability was “the only cause” of the

discriminatory action. Sedor v. Frank, 42 F.3d 741, 746 (2d Cir. 1994) (citing

Teahan v. Metro-North Commuter R.R. Co., 951 F.2d 511, 515–17 (2d Cir.

1991)). The causal connection between the individual’s disability and the

discriminatory action “need not be direct” in order to satisfy the “sole reason”

requirement: it is sufficient that the disability caused the individual to do or

not do something, which, in turn, caused the discriminatory action. Sedor, 42

F.3d at 746. “[H]owever, to satisfy the ‘solely’ part of the ‘solely by reason of’

element, the disability must have been the only cause of the . . . conduct” that

“trigger[ed]” the discriminatory action. Id. (emphasis added). This standard

conforms to our caselaw, which recognizes that the phrase “solely by reason of”

requires an individual’s disability to be more than “simply a ‘motivating

factor’” in the discriminatory action. Soledad v. U.S. Dep’t of Treasury, 304

F.3d 500, 505 (5th Cir. 2002).

The dissent argues that Shaikh must demonstrate a “direct causal

nexus” between his disability and his dismissal in order to satisfy the “solely

by reason of” requirement, but it is not clear what sort of discriminatory

action—if any—would satisfy that test. According to the dissent, a “direct

causal nexus” would exist here only if Shaikh’s “disability itself was the sole

reason for his dismissal.” That formulation is even more problematic, however,

because it is premised upon a false distinction between the “disability itself”

and the disability’s effects; as explained above, Section 504 and the ADA define

“disability” in terms of real-life limitations, not abstract diagnoses. It seems

that the dissent’s test would encompass, at most, actions resulting solely from

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discriminatory animus against an individual’s disabled status. But Section

504’s prohibitions are not confined to animus-based discrimination, as the

Supreme Court has held. Alexander v. Choate, 469 U.S. 287, 295–97 & n.12

(1985) (observing that “[d]iscrimination against the handicapped was

perceived by Congress to be most often the product, not of invidious animus,

but rather of thoughtlessness and indifference—of benign neglect,” and that

“much of the conduct that Congress sought to alter in passing

the Rehabilitation Act would be difficult if not impossible to reach were the Act

construed to proscribe only conduct fueled by a discriminatory intent”).

Shaikh satisfies the “sole reason” requirement in this case. He plausibly

alleges that his disability was the only cause of his failure to retake the

USMLE Step 1 by the end of his leave of absence and that this failure triggered

the College’s decision to constructively dismiss him from the program. Shaikh

also plausibly alleges that his disability was the “sole reason” the College

denied his subsequent applications for readmission. The only reason those

applications were necessary was because of the constructive dismissal, which

was precipitated by Shaikh’s inability to retake the exam within the timeframe

set by the College due to his disability. Given this background, moreover, it is

reasonable to construe the Dean of Admission’s statement that Shaikh was

“not an acceptable applicant” as a reference to his failure to retake the USMLE

Step 1. The other portion of the Dean of Admission’s statement—that Shaikh

was “a liability for psychiatric reasons”—is consistent with this interpretation

and may also constitute direct evidence that the College rejected Shaikh

because of the mental limitations caused by his disability. 8 See Rodriguez v.

8 Although Shaikh received a correct diagnosis only after being denied readmission,

Section 504 and the ADA define “disability” in terms of the limitations that an impairment

imposes on an individual, not the individual’s particular diagnosis. 42 U.S.C. § 12102(1)(A);

Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 566–67 (1999). Taking the allegations in his

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Eli Lilly & Co., 820 F.3d 759, 764 (5th Cir. 2016). The possibility of additional,

or alternative, reasons for the College’s decision does not detract from the

plausibility of Shaikh’s allegation that his disability was the “sole reason” he

was denied readmission. See Iqbal, 556 U.S. at 678 (“The plausibility standard

is not akin to a ‘probability requirement’ . . . .” (quoting Twombly, 550 U.S. at

557)).

* * *

Shaikh has stated a claim for relief under Section 504 of the

Rehabilitation Act. The district court’s dismissal of that claim is reversed. 9

complaint as true, the College was aware of Shaikh’s substantial mental limitations when it

denied him readmission.

9 This circuit has held that a plaintiff must show “intentional discrimination” to

recover compensatory damages in a private suit under Section 504. Delano-Pyle v. Victoria

Cty., 302 F.3d 567, 574 (5th Cir. 2002). We have not comprehensively defined “intentional

discrimination,” but under our caselaw, it includes “purposeful[]” discrimination, Perez v.

Doctors Hosp. at Renaissance, Ltd., 624 F. App’x 180, 184 (5th Cir. 2015) (unpublished

decision), as well as actions “manifest[ing] some discriminatory animus.” Carter v. Orleans

Par. Pub. Sch., 725 F.2d 261, 264 (5th Cir. 1984). Because damages are only one of several

types of relief available under the statute, a plaintiff is not required to allege intentional

discrimination to state a claim under Section 504. See Laird v. Integrated Res., Inc., 897 F.2d

826, 841–42 (5th Cir. 1990). At oral argument, however, Shaikh’s counsel stated that Shaikh

now only seeks relief in the form of damages. As Shaikh has adequately alleged that the

College intentionally discriminated against him, we need not decide whether this admission

would support dismissal in other circumstances. Cf. Bontkowski v. Smith, 305 F.3d 757, 762

(7th Cir. 2002) (“It would be appropriate and indeed quite sensible for a judge confronting a

complaint that does not demand proper relief to ascertain whether the plaintiff wants the

improper relief sought in the complaint or nothing; if so, the complaint must be dismissed.”).

According to the complaint, College officials were aware of the substantial mental

limitations Shaikh was experiencing and were also aware that those limitations substantially

impaired his ability to sit for the USMLE Step 1. Nonetheless, the College constructively

dismissed Shaikh for failing to retake the USMLE Step 1 and twice denied him readmission

thereafter. This demonstrates sufficiently intentional discrimination to support a claim for

damages. See Delano-Pyle, 302 F.3d at 575–76 (finding intentional discrimination where a

police officer was aware that a hearing-impaired individual did not understand his verbal

commands but persisted in ineffective verbal communication); Perez, 624 F. App’x at 184–86

(“Intent is usually shown only by inferences.”). In addition, the Dean of Admission’s

statement that Shaikh “was a liability for psychiatric reasons” demonstrates some

discriminatory animus.

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C. Title II of the Americans with Disabilities Act

Shaikh claims that the College violated Title II of the ADA, which

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.” 42 U.S.C. § 12132. Unlike Section 504 of

the Rehabilitation Act, Title II of the ADA “applies to public entities regardless

of whether they receive federal funds,” Pace, 403 F.3d at 276 n.4, and thus

implicates Congress’s power to abrogate state sovereign/Eleventh Amendment

immunity. The district court dismissed Shaikh’s ADA claim on the ground that

Title II does not abrogate the College’s immunity in this case. Shaikh argues

that it does and urges reversal.

Congress may abrogate state sovereign immunity if it (1) “makes its

intention to abrogate unmistakably clear in the language of the statute” and

(2) “acts pursuant to a valid exercise of its power under § 5 of the Fourteenth

Amendment.” Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 726 (2003). The

ADA contains a clear expression of Congress’s intent to abrogate state

immunity. Tennessee v. Lane, 541 U.S. 509, 518 (2004) (citing 42 U.S.C.

§ 12202). To determine whether Title II of the ADA is a valid exercise of

Congress’s authority under § 5 of the Fourteenth Amendment, courts apply the

three-part inquiry set forth by the Supreme Court in United States v.

Georgia, 546 U.S. 151 (2006); see also Hale v. King, 642 F.3d 492, 497–98 (5th

Cir. 2011) (per curiam).

First, a court must determine “which aspects of the [s]tate’s alleged

conduct violated Title II.” Georgia, 546 U.S. at 159. Here, Shaikh’s ADA claim

is based upon the same conduct underlying his Section 504 claim—i.e., the

College’s constructive dismissal of Shaikh and its denial of his applications for

readmission. So far as this case is concerned, the only material difference

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between Title II and Section 504 is that Title II contains a less demanding

causation standard. See Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448,

454 (5th Cir. 2005). Because Shaikh has stated a claim under Section 504, we

conclude, for purposes of Georgia’s abrogation analysis, that the same conduct

is a violation of Title II of the ADA.

At the second part of the Georgia test, the court must determine “to what

extent such misconduct also violated the Fourteenth Amendment.” 546 U.S. at

159. “If the [s]tate’s conduct violated both Title II and the Fourteenth

Amendment, Title II validly abrogates state sovereign immunity.” Hale, 642

F.3d at 498. Otherwise, the court must proceed to the third step. Shaikh

maintains that the College’s conduct violated the Due Process Clause of the

Fourteenth Amendment, 10 but his citation to Lane, a case involving “the

fundamental right of access to the courts,” 541 U.S. at 533–34, is not directly

applicable here. Shaikh also argues that he had a property interest in his

education, but even if that is assumed to be true, he fails to demonstrate that

the College’s actions ran afoul of the Due Process Clause. See Bd. of Curators

of Univ. of Mo. v. Horowitz, 435 U.S. 78, 84–90 (1978); Goss v. Lopez, 419 U.S.

565, 579 (1975).

The third part of the Georgia inquiry requires the court to decide

“whether Congress’s purported abrogation of sovereign immunity as to that

class of conduct”—i.e., conduct that violates Title II of the ADA but does not

independently violate the Fourteenth Amendment—“is nevertheless valid.”

Georgia, 546 U.S. at 159; see also Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 81

(2000) (“Congress’ power ‘to enforce’ the [Fourteenth] Amendment includes the

authority both to remedy and to deter violation of rights guaranteed

10 Shaikh does not contend that the College’s conduct violated the Equal Protection

Clause or any constitutional provision incorporated by the Fourteenth Amendment.

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thereunder by prohibiting a somewhat broader swath of conduct, including

that which is not itself forbidden by the Amendment’s text.”). The district court

erroneously concluded that “[s]tate sovereign immunity bars everything but

constitutional claims.” Shaikh, however, has failed to brief any meaningful

argument that Congress’s purported abrogation is “nevertheless valid” in this

case and has therefore waived the issue. See Raj, 714 F.3d at 327.

Accordingly, we uphold the dismissal of Shaikh’s ADA claim for lack of

subject-matter jurisdiction pursuant to Rule 12(b)(1).

IV. CONCLUSION

For these reasons, we AFFIRM the district court’s judgment with respect

to Shaikh’s claims under Section 1983 and Title II of the ADA, we REVERSE

the district court’s judgment with respect to Shaikh’s claim under Section 504

of the Rehabilitation Act, and we REMAND for further proceedings consistent

with this opinion.

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EDITH BROWN CLEMENT, Circuit Judge, dissenting in part.

The majority holds that Shaikh has stated a plausible claim for disability

discrimination under Section 504 of the Rehabilitation Act. Because I believe

the district court properly dismissed Shaikh’s Section 504 claim, I respectfully

dissent from Part B of the majority’s opinion.

I

In order to state a claim for a violation of Section 504, a plaintiff must

allege that he is (1) disabled, (2) otherwise qualified, and (3) that he has been

denied participation in or the benefits of services, programs, or activities

provided by a public entity receiving federal funds on the basis of that

disability. See, e.g., Campbell v. Lamar Inst. of Tech., 842 F.3d 375, 380 n.1

(5th Cir. 2016). The plaintiff’s disability must be the sole cause of the

discriminatory action—not merely a “motivating factor.” See Soledad v. U.S.

Dep’t of Treasury, 304 F.3d 500, 505 (5th Cir. 2002). Additionally, the plaintiff

must allege that the public educational institution affirmatively refused to

provide reasonable accommodations to allow the disabled student to

participate in the program. See Doe v. Columbia-Brazoria Indep. Sch. Dist. by

& through Bd. of Trustees, 855 F.3d 681, 690 (5th Cir. 2017) (citing D.A. ex rel.

Latasha A. v. Hous. Indep. Sch. Dist., 629 F.3d 450, 454 (5th Cir. 2010)).

Shaikh fails to sufficiently plead Section 504’s requirements. Even if

Shaikh could establish that he had or was regarded as having had a cognizable

disability, he fails to plausibly allege that he was otherwise qualified or that

he requested and was refused reasonable accommodations to allow him to

participate in the medical program. Moreover, the complaint makes clear that

the primary basis for Shaikh’s dismissal was his failure to retake and pass the

USMLE—not his misdiagnosed psychiatric disability.

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First, as Shaikh admits in his complaint, he failed to meet a key

academic qualification for continued enrollment in the College: a passing score

on the USMLE Step 1 (commonly referred to as “The Boards”). The College

informed Shaikh repeatedly prior to his dismissal that he was expected to take

and pass the test. The majority baldly states that the USMLE “may well have

been a non-essential requirement.” But this statement defies logic. Certainly

a passing score on the first step of the national medical licensing

examination—which evaluates a student’s ability to “assess[] whether [he]

understands and can apply important concepts of the sciences basic to the

practice of medicine”—would qualify as an “essential” qualification for

continued enrollment in a medical program. See http://www.usmle.org/step-1/.

Shaikh’s conclusory assertion that he was “otherwise qualified” simply because

he had passable grades does not suffice to state a cause of action under Section

504. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A pleading that offers

labels and conclusions or a formulaic recitation of the elements of a cause of

action will not do. Nor does a complaint suffice if it tenders naked assertions

devoid of further factual enhancement.” (internal quotations omitted)).

Second, the majority entirely ignores that while Shaikh alleges generally

in his complaint that the College “failed to provide [him] accommodations and

modifications . . . so that he could remain in the medical program,” he does not

specify what, if any, accommodations he requested and was denied. In fact,

Shaikh admits that he “did not apply formally for the accommodation under

504.” 1 Absent any allegation that the College refused to provide a requested

1 Notably, the complaint demonstrates that the College was actually proactive in

trying to help Shaikh avoid leaving the medical program. After Shaikh brought his health

concerns to the attention of Dr. McCord, Dr. McCord encouraged him to make use of the

mental health resources the College offered. When Shaikh failed the USMLE, the College

allowed him to take a leave of absence so that he could focus on studying for and retaking the

test.

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accommodation, Shaikh has failed to state a claim under Section 504. See Doe,

855 F.3d at 690 (citing D.A. ex rel. Latasha A., 629 F.3d at 454).

Lastly, Shaikh has not sufficiently established a direct causal nexus

between the College’s alleged recognition of his misdiagnosed psychological

disability and his dismissal. The majority acknowledges that “to satisfy the

‘solely’ part of the ‘solely by reason of’ element, the disability must have been

the only cause of the . . . conduct” that “trigger[ed]” the discriminatory action.

Sedor v. Frank, 42 F.3d 741, 746 (2d Cir. 1994) (emphasis added). It then skirts

this high bar by explaining that “[Shaikh’s] disability was the only cause of his

failure to retake the USMLE Step 1 by the end of his leave of absence and []

this failure triggered the College’s decision to constructively dismiss him from

the program.” But the question is not whether Shaikh’s disability was the

principal reason he failed to retake the test—it is whether his disability itself

was the sole reason for his dismissal. In support of their downstream causation

theory, the majority cites only a Second Circuit case from 1994 that states the

causal relationship between the disability and the discriminatory action “need

not be direct.” Sedor, 42 F.3d at 746. The majority then states that “[t]his

standard conforms to our caselaw” without providing a single case from our

circuit that expressly blesses the indirect cause analysis. Shaikh’s disability

was not the sole reason he was dismissed from the college. Indeed, it was not

even the primary reason. The complaint indicates that the primary basis for

Shaikh’s dismissal was not his mental health issues, but his failure to meet a

key academic requirement. That Shaikh’s dismissal was clearly motivated by

factors other than his disability is fatal to his Section 504 claim.

Accordingly, the district court properly dismissed Shaikh’s claim for

relief under Section 504 of the Rehabilitation Act. I respectfully dissent.

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