Samantha Newell v. Central Mich. Univ. Bd. of Trs.

NOT RECOMMENDED FOR PUBLICATION

File Name: 21a0417n.06

No. 20-1864

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

SAMANTHA NEWELL, ) FILED

) Sep 02, 2021

Plaintiff-Appellant, ) DEBORAH S. HUNT, Clerk

)

v. )

ON APPEAL FROM THE

)

UNITED STATES DISTRICT

CENTRAL MICHIGAN UNIVERSITY BOARD )

COURT FOR THE EASTERN

OF TRUSTEES; DEBORAH SILKWOOD- )

DISTRICT OF MICHIGAN

SHERER, )

)

Defendants-Appellees. )

)

BEFORE: GRIFFIN, WHITE, and READLER, Circuit Judges.

GRIFFIN, Circuit Judge.

Samantha Newell claims that Central Michigan University failed to provide her certain

accommodations for her disability in a timely manner and subjected her to a hostile educational

environment while she was a doctoral student in the university’s Physical Therapy Program. She

also contends Dr. Deborah Silkwood-Sherer, the program’s director, violated her right to bodily

integrity by not exempting her from physical treatments within the program curriculum that caused

her physical harm. The district court entered judgment for defendants in two orders, and we affirm.

I.

A.

Plaintiff Samantha Newell suffers from a genetic disorder that she describes as a

combination of hypotonic cerebral palsy and a connective-tissue condition like Marfan syndrome.

No. 20-1864, Newell v. Cent. Mich. Univ. Bd. of Trs.

Her disorder manifests in several ways, including hypermobility, joint instability and pain, general

lack of strength, as well as learning and cognitive disabilities and sensory processing issues.

She entered Central Michigan University’s Physical Therapy Program in May 2016 and

worked with the university’s Student Disability Services (SDS) office to coordinate

accommodations. The director of SDS, Lynne L’Hommedieu, provided plaintiff with letters

indicating that she was entitled to extra time for tests, a separate testing area, and alternative test

formats. It was Newell’s responsibility to give a copy of the letter to each of her professors.

After a relatively uneventful first semester (Summer 2016), plaintiff began to have

problems with some aspects of her schooling. In the Fall 2016 semester, she was either late or

absent for several required class sessions. For example, she arrived 50 minutes late to one of her

exams and forgot to attend a laboratory session for the same professor’s class, offering no

explanation for her failure to attend.

During the Fall 2016 semester, Newell was also required to experience electronic

stimulation (“e-stim”) as part of Patient Care Lab I with Drs. Timothy Zipple and Elaine Betts on

two or three occasions, which transmits a small electrical current through the body to treat maladies

like muscle spasms and mild nerve damage. She and a partner took turns setting up the e-stim

machine and applying it to each other. Plaintiff suffered “severe headaches, fatigue, and sleep

issues” from the e-stim treatment. When she reported this to the SDS office, L’Hommedieu

arranged a meeting between Newell, Dr. Silkwood-Sherer, and herself. As a result of the meeting,

Dr. Silkwood-Sherer agreed that for purposes of the practical exam, Newell’s partner could set up

the machine but not perform the treatment upon her so long as the professors teaching the class

approved. While there was some confusion over this because plaintiff did not raise the issue with

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the professors teaching the course until exam day, she ultimately did not experience e-stim during

the practical exam.

Once the Fall 2016 semester ended, L’Hommedieu sent Newell an email to “touch base

. . . regarding how to work out your accommodations in Spring and forward.” She stated that

“including me in the discussion with your professors and Dr. Silkwood-Sherer really doesn’t help,”

because she did not “understand enough about the program” and including her in discussions

meant that the professors would “have to teach me what is required to function in the program.”

Thus, she recommended that “in the future it will be best for you to go directly to your professors

and include Dr. Silkwood-Sherer on e-mails” without copying L’Hommedieu.

On January 5, 2017, before the next semester began, Newell wrote a letter to her professors

requesting several additional accommodations primarily relating to her sensory-processing

disorder. For instance, she requested a modified attendance policy that would allow her to rely on

class recordings. She also requested the ability to use headphones during lab work and while

taking tests. Finally, plaintiff recounted her struggles the previous semester with e-stim. She

explained that she was concerned “about what other modalities or treatments” might do to her in

the future. She closed this portion of the letter by stating: “I will try anything, but if I notice

problems, I hope that I’ll be accommodated.” The letter offered no other specifics as to any

accommodations request regarding classroom demonstrations. Dr. Silkwood-Sherer responded,

cautioning that the faculty might not be able to grant all of Newell’s requested accommodations

because they would hinder her ability to practice in clinical rotations. On January 11, Newell

responded that she “underst[ood] that all the thoughts/ideas presented in my letter [would] not all

be implemented.” Newell later testified that the January 5 letter was not requesting specific

accommodations that would “excuse [her] from receiving any types of . . . treatments in class.”

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On January 17, 2017, Newell sent another email to Dr. Silkwood-Sherer. She reported that

the previous week, while in a class with Dr. Zipple, he used Newell as a demonstration patient to

teach the “spinal spring test” (a method of spinal manipulation), and the Friday after class,

January 13, she had to miss class with a bad migraine. She thought the migraine might have been

due to the spinal spring test and concluded the letter by stating: “I think that manipulating my spine

affected me a lot. . . . I may need to be accommodated to only give and not receive the spinal

manipulation treatments. I am going to talk to my physician and PT that know my condition best

on whether having my spine manipulated would cause these issues.”

That same day, the faculty, with SDS present, took up discussion of Newell’s January 5

letter in a faculty meeting. They denied her requests for a modified attendance policy and for

noise-canceling headphones. They concluded that she “need[ed] to be a patient/participant in labs”

but did not consider whether she should be exempt from demonstrations performed by the

professor. However, the faculty granted plaintiff access to prior years’ video recordings of

lectures, allowed her to wear earplugs during testing (as opposed to headphones), and promised

that they would not “overwork” Newell’s joints and tissue during labs, as they had done for

previous students with hypermobility.

In addition to discussing the accommodations Newell requested, the faculty discussed their

collective perception that she lacked professionalism or otherwise was not fully engaged in the

program. The meeting agenda specifically noted six behaviors of Newell’s that concerned them:

ii. Student does not self-assess well. She feels that she is below her

classmates. She worries about things that have not happened, yet.

iii. Student has not followed up on exercises that were given to her by Dr.

Haines to improve her strength and ability to work safely with patients.

iv. Student has only met with her advisor once since entering the program.

v. Student has not followed up with Dr. Zipple on an email that he sent her.

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No. 20-1864, Newell v. Cent. Mich. Univ. Bd. of Trs.

vi. Student has not given Dr. Betts a letter from Student Disability Student

Services this semester

vii. Dr. Betts told student that she would work with her biomechanics[;] student

did not follow through.

They therefore created a “Professional Behavior Contract” for Newell to sign, through which she

would promise to attend a weekly meeting with her advisor, attend all classes and meet with at

least one professor per week during office hours, and “take her turn being a patient in lab.” Finally,

the faculty recognized that plaintiff was “performing academically up to the class standard,” but

that she needed “feedback to that effect” and a “confidence building chat.”

According to Newell, the Spring 2017 semester was a disaster. She alleges suffering

numerous injuries because of treatments performed on her by her student-partners during lab

and/or by her professors in class demonstrations. But she did not raise these injuries with the

faculty or the SDS office in January or February 2017, despite many email exchanges with both.1

Her struggles with attendance and professionalism also continued. On one occasion in early

February, she arrived one hour late for class. Then, on February 26, 2017, she scheduled two tests

for different classes at the same time. Because of these developments, Newell was again a subject

of discussion for the faculty. At a meeting in late February 2017, the faculty decided to issue a

written warning to Newell along with “a formal behavioral contract.”

To that end, Newell’s faculty advisor, Dr. Jan Perkins, sent her an email during spring

break on March 7, 2017, outlining the behavioral issues discussed above. She told Newell that

they needed to meet “as early after break” as they could to discuss the faculty’s expectations for

1

Newell later created a list of the “labs that caused problems for my joints,” mainly in a

class focused on mobilization techniques. In one lab, she says she tore her right hip labrum. She

testified in her deposition that she never told her professors about the injury. (“Q. But you didn’t

tell Dr. Zipple you’d been injured that day, right? A. I didn’t tell him, no. Q. Did you tell Dr.

Sung? A. No. I don’t recall telling Dr. Sung, no. I tried to avoid the professors because I didn’t

want to be considered, you know, a baby[.]”).

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her. Newell responded six days later that “a meeting to define expectations [was] a great idea.”

She added that she had “quite a few disability accommodation expectations that still need[ed] to

be addressed as well.” Newell further explained that her “parents [felt] as though [her] disability

attorney’s office should be involved and . . . sent them a retainer. So, a representative from that

office will be at that meeting with me . . . . We can expect that we can be ready to start a discussion

in about two weeks.”

Then, on March 15, 2017, Newell sent an email to the faculty raising concerns about being

required to undergo physical treatments as part of her lab work. She explained that the treatments

were “contraindicated” for her condition, so even if done “mildly,” they were causing her harm.

She added, “I am understanding that although I have a medical diagnosis of hypermobility and

hypotonia, I am still expected to endure mobilizations. I’ve asked several of you about this and I

get the same answer, which is that if done mildly, it will be fine.” She stated that she had “been

having substantial physical negative side effects from this on a regular basis” and could “get

medical documentation about the issues if needed.” The email concluded: “So, one more time, I

just need to make sure that you all understand this and yet you still want me to continue to endure

this procedure. Thank you.”

Dr. Silkwood-Sherer responded on March 17, 2017, writing on behalf of all of Newell’s

professors. She stood by the faculty’s position that they were able to modify treatment techniques

to help Newell satisfy the program requirements, and that mobilizations were not contraindicated

for her if performed correctly. Silkwood-Sherer also stated that they could not excuse plaintiff

from lab activities because it would “violate[] the policy of treating everyone the same, unless

there are documented accommodations.” She added that the “fact that you are sending this email[]

just reinforces why we need to meet. We need to have a dialogue on exactly what issues you are

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having[.]” She therefore urged Newell to schedule the anticipated meeting “as soon as possible”

so they could “problem solve for possible solutions that could be satisfactory for everyone.”

Newell next emailed Dr. Zipple the following day, March 18. She stated that every time

he performed a mobilization technique upon her, she needed medical treatment. She also stated

that her “lab partners were always careful” when performing treatments, so she “did not seem to

have as many issues when it [was] only [her] lab partner that work[ed] on [her].” Newell cited

two occasions where Dr. Zipple had performed treatments on her that caused “out of control” pain.

Because of this, she requested that “only her [lab partner]” perform manual therapy on her in

upcoming class sessions. She also suggested that she could be put in a group of three or four

students, so she would not need to act as a patient if a particular treatment posed problems.

Alternatively, she asked “at a minimum” that Dr. Zipple demonstrate on a student other than

Newell when her partner asks a question and that she not be “used in class demonstrations.” The

faculty noted this email and flagged it for discussion in the forthcoming meeting.

The meeting was scheduled for March 28. On that day, Newell sent a letter to Silkwood-

Sherer, L’Hommediue, and Perkins. It expressly requested several accommodations, including

that Newell be in groups of three during lab work so that her classmates would have someone else

to practice on if Newell was “unable to participate.” It also asked for an “[e]xemption from any

in-class treatment demonstrations unless [she] volunteer[ed].”

The March 28 meeting lasted nearly two hours and covered both the faculty’s concerns

with plaintiff’s conduct and her need for further accommodations. During the meeting, Newell

explained that she had recently suffered “some kind of hip sprain” after she “let [her] partner push

. . . too hard.” She feared that “if she said no,” or told her partner to stop, she would “get in trouble

somehow.” Dr. Silkwood-Sherer responded that she did not understand why Newell would get in

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trouble for communicating to her lab partner that she needed to stop the treatment. Moreover, she

explained that the program expected students to tell their partners when they were pushing too

hard and that communication between the pair should be “happening all the time.” Regarding Dr.

Zipple’s demonstrations, Dr. Silkwood-Sherer urged Newell to meet with him in person to discuss

her concerns. At the end of the faculty meeting, Newell received a written warning for her

professionalism issues.

Dr. Zipple demonstrated a technique on Newell one more time, on April 5, when he

performed a mobilization on the outside of her knee during a lab. This did not lead to serious

injury, but it did cause Newell’s knee to feel looser.

On April 6, Newell met with CMU’s Office of Civil Rights and Institutional Equity

(OCRIE) to file a formal civil rights complaint. OCRIE investigated between April 6, 2017, and

July 11, 2017. During the investigation, it recommended that the Physical Therapy faculty refrain

from meeting with Newell to discuss class-specific accommodations. Plaintiff’s last manual

therapy lab session for the Spring 2017 semester occurred on April 10, 2017. She sprained her

ankle during that lab after a classmate began doing “lateral subtalar glides too fast” on her foot,

causing a “pop” and pain. SDS worked with Newell and the Physical Therapy faculty to structure

Newell’s practical exams—taking place at the end of April and beginning of May—so that they

did not require her to experience any type of mobilization or intervention technique. Newell

completed those exams without issue.

OCRIE completed its investigation into Newell’s complaint on July 11, 2017. It resulted

in CMU withdrawing the written warning, and Newell receiving a formal accommodation letter

that permitted her to avoid participating in mobilizations she deemed harmful during labs. Dr.

Silkwood-Sherer opposed this accommodation but said that she would “obviously have to live

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with it.” On July 7, just prior to the issuance of Newell’s formal accommodations, Dr. Zipple

offered a similar, informal accommodation at the start of his class with Newell during the Summer

2017 semester, providing that she could choose not to have techniques performed on her that she

deemed potentially hazardous and would not be selected as a demonstration model by course

faculty.

After receiving the formal accommodation, Newell had no further issues with the

classroom portions of her education. She was, however, terminated from her clinical placement

in the Fall of 2018 at the request of her clinical supervisor. In the request to cease the placement,

the supervisor reported that Newell had “compromised the standard of patient care” at the facility.

Because of plaintiff’s termination from her clinical placement, she was subject to dismissal from

the Physical Therapy Program, but the faculty instead allowed her to remediate. Around the same

time, she took a medical leave after being diagnosed with a labral tear in her right hip.

As of the time of the complaint, Newell had completed the classroom requirements for

graduation from the program with a 3.67 GPA but had not returned to finish the clinical

requirements. Newell has since returned to the program and is wrapping up the remaining clinical

work required for graduation.

B.

Newell filed suit in July 2019. In her operative complaint, she pleaded five counts:

(1) failure to grant reasonable accommodations against CMU; (2) retaliation for protected activity

under the Americans with Disabilities Act and Rehabilitation Act against CMU; (3) interference

with rights protected under the ADA and Rehabilitation Act against CMU; (4) “Hostile

Educational Environment” under the ADA and Rehabilitation Act as to CMU; and (5) violation of

her right to bodily integrity under the Fourteenth Amendment as to Dr. Silkwood-Sherer.

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After answering the complaint, Dr. Silkwood-Sherer moved for judgment on the pleadings.

She argued that the facts in Newell’s complaint failed to allege a violation of her right to bodily

integrity, that she could not be held liable for the constitutional violation on a theory of supervisory

liability, and that she was entitled to qualified immunity because even assuming a plausible claim

of a constitutional violation, the law was not clearly established. After full briefing, the district

court granted the motion, ruling that Dr. Silkwood-Sherer was entitled to qualified immunity.

Following discovery, CMU moved for summary judgment on the remaining ADA and

Rehabilitation Act claims. The district court granted the motion. As relevant to the appeal, it ruled

that no reasonable juror could find that CMU denied Newell reasonable accommodations (either

by failing to engage in the interactive process or by constructively denying an accommodation),

and that her claim for a hostile educational environment failed because even assuming such a claim

exists, plaintiff had not proffered evidence that she had subjectively experienced an abusive

educational environment.2 Having dismissed all of plaintiff’s claims, the court entered judgment,

and Newell timely appealed.

II.

We begin with the district court’s order granting judgment on the pleadings to Dr.

Silkwood-Sherer. Pursuant to Federal Rule of Civil Procedure 12(c), “[a]fter the pleadings are

closed—but early enough not to delay trial—a party may move for judgment on the pleadings.”

Fed. R. Civ. P. 12(c). “We review de novo a judgment on the pleadings granted pursuant to

2

The court also held that plaintiff’s retaliation claim failed because there was no evidence

that CMU took adverse action against her for requesting accommodation and that her ADA and

Rehabilitation Act claims for interference with a protected right failed because no reasonable juror

could find that defendants had coerced, threatened, or interfered with Newell’s protected activity

or that CMU was motivated by an intent to discriminate. Newell does not challenge those rulings

on appeal.

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Rule 12(c) . . . using the same standard that applies to a review of a motion to dismiss under

Rule 12(b)(6).” Moore v. Hiram Twp., 988 F.3d 353, 357 (6th Cir. 2021).

“For purposes of a motion for judgment on the pleadings, all well-pleaded material

allegations of the pleadings of the opposing party must be taken as true, and the motion may be

granted only if the moving party is nevertheless clearly entitled to judgment.” Jackson v. Prof’l

Radiology Inc., 864 F.3d 463, 466 (6th Cir. 2017) (citation omitted). “But we need not accept as

true legal conclusions or unwarranted factual inferences.” Id. (internal quotation marks and

citation omitted). “A Rule 12(c) motion is granted when no material issue of fact exists and the

party making the motion is entitled to judgment as a matter of law.” Id. (internal quotation marks

and citation omitted).

“To state a claim under 42 U.S.C. § 1983, a plaintiff must set forth facts that, when

construed favorably, establish (1) the deprivation of a right secured by the Constitution or laws of

the United States (2) caused by a person acting under the color of state law.” Marvin v. City of

Taylor, 509 F.3d 234, 243 (6th Cir. 2007) (citation omitted). However, qualified immunity shields

government officials performing discretionary functions from liability if they have violated an

individual’s constitutional right, but that right was not “clearly established” when the officials

acted. Id. (citation omitted). Thus, a two-part test determines whether qualified immunity applies:

“(1) whether, considering the allegations in a light most favorable to the party injured, a

constitutional right has been violated, and (2) whether that right was clearly established.” Colvin

v. Caruso, 605 F.3d 282, 290 (6th Cir. 2010) (citation omitted). “We are free to consider the two-

part test in whatever order is appropriate in light of the issues before us.” Id. (internal quotation

marks, citation, and brackets omitted); see Pearson v. Callahan, 555 U.S. 223, 236 (2009).

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“Although a defendant’s entitlement to qualified immunity is a threshold question to be

resolved at the earliest possible point, that point is usually summary judgment and not dismissal

under Rule 12.” Moderwell v. Cuyahoga County, 997 F.3d 653, 660 (6th Cir. 2021) (internal

quotation marks and citation omitted). “The reasoning for our general preference is

straightforward: Absent any factual development beyond the allegations in a complaint, a court

cannot fairly tell whether a case is obvious or squarely governed by precedent, which prevents us

from determining whether the facts of this case parallel a prior decision or not for purposes of

determining whether a right is clearly established.” Guertin v. State, 912 F.3d 907, 917 (6th Cir.

2019) (internal quotation marks and citation omitted). We recently stated that “‘it is generally

inappropriate for a . . . court to grant a [12(c) motion for judgment on the pleadings] on the basis

of qualified immunity.’” Moderwell, 997 F.3d at 661 (alteration in original) (quoting Wesley v.

Campbell, 779 F.3d 421, 433-34 (6th Cir. 2015)). But we have also affirmed grants of judgment

on the pleadings where the plaintiff did not plead a clearly established substantive due process

violation, so this statement is not an absolute prohibition. See, e.g., Clark v. Stone, 998 F.3d 287,

299–300 (6th Cir. 2021); Jasinski v. Tyler, 729 F.3d 531, 538–40 (6th Cir. 2013).

When considering qualified immunity at the Rule 12 phase, “we ask whether the complaint

plausibly alleges that an official’s acts violated the plaintiff’s clearly established constitutional

right.” Siefert v. Hamilton County, 951 F.3d 753, 762 (6th Cir. 2020) (internal quotation marks

and citation omitted). “If, taking all the facts as true and reading all inferences in the plaintiff’s

favor, the plaintiff has not plausibly showed a violation of his clearly established rights, then the

[]defendant is entitled to immunity from suit.” Id. In other words, “[j]ust as we gauge other

pleading-stage dismissals to determine only whether the complaint states a claim upon which relief

can be granted, . . . so we review an assertion of qualified immunity to determine only whether the

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complaint adequately alleges the commission of acts that violated clearly established law.” Back

v. Hall, 537 F.3d 552, 555 (6th Cir. 2008) (citation omitted).

The district court first concluded that Newell pleaded a plausible bodily-integrity claim,

but then concluded that “the same facts” that rendered the claim plausible were “insufficient to

demonstrate a violation of Plaintiff’s right to bodily integrity” (emphasis added). That did not

conform to the proper analysis, which asks if (1) Newell adequately alleged a violation of a

constitutional right that (2) was clearly established. While the district court could take those

questions in the order it deemed most appropriate, it appeared to improperly chart a third course

by concluding that Newell adequately alleged but did not “demonstrate” a violation.

Nevertheless, we need not decide whether Newell pleaded facts which plausibly give rise

to a constitutional violation, Pearson, 555 U.S. at 269, for she has not alleged a violation of clearly

established law, see Wallace v. Oakwood Healthcare, Inc., 954 F.3d 879, 887 (6th Cir. 2020)

(“This court can affirm a decision of the district court on any grounds supported by the record,

even if different from those relied on by the district court.” (brackets and citation omitted)).

“Qualified immunity attaches when an official’s conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have known.”

Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam) (internal quotation marks and citation

omitted). Therefore, the clearly established right must be defined with “specificity,” and not “at a

high level of generality.” Id. “Notice to officials is paramount; ‘the salient question’ in evaluating

the clearly established prong is whether officials had ‘fair warning’ that their conduct was

unconstitutional.” Guertin, 912 F.3d at 932 (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)).

The focus must be “whether the violative nature of particular conduct is clearly established . . . in

light of the specific context of the case.” Id. (quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015)).

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That is not to say that qualified immunity requires a prior decision “on all fours” to “form

the basis for the clearly established right.” Id. Instead, the test is whether “existing precedent

must have placed the . . . constitutional question beyond debate.” Id. This means there must either

be “controlling authority or a robust consensus of cases of persuasive authority.” Plumhoff v.

Rickard, 572 U.S. 765 (2014) (internal quotation marks omitted). “[A]n action’s unlawfulness can

be ‘clearly established’ from direct holdings, from specific examples describing certain conduct

as prohibited, or from the general reasoning that a court employs.” Baynes v. Cleland, 799 F.3d

600, 612 (6th Cir. 2015) (citing Hope, 536 U.S. at 742–44).

Newell says Silkwood-Sherer violated her right to bodily integrity. That right “bears an

impressive constitutional pedigree.” Doe v. Claiborne County, 103 F.3d 495, 506 (6th Cir. 1996).

A bodily-integrity claim must show that the government action “‘shocks the conscience and

violates the decencies of civilized conduct.’” Guertin, 912 F.3d at 918; accord In re Flint Water

Cases, 960 F.3d 303, 324 (6th Cir. 2020). The “‘measure of what is conscience shocking is no

calibrated yard stick,’ nor is it ‘subject to mechanical application.’” Guertin, 912 F.3d at 923

(citations omitted). Mere negligence is insufficient. Id. Deliberate indifference can suffice, but

it depends on context. See id. (“‘Deliberate indifference that shocks in one environment may not

be so patently egregious in another[.]’” (citation omitted)).

Here, the district court ruled that Newell’s Fourteenth Amendment right to be free from

intrusions to her bodily integrity were clearly established by Claybrook v. Birchwell, 199 F.3d 350

(6th Cir. 2000), Domingo v. Kowalski, 810 F.3d 403 (6th Cir. 2016), and Webb v. McCullough,

828 F.2d 1151 (6th Cir. 1987). It defined the right at issue only at a very high level of generality.

(“The Sixth Circuit has held that there is a constitutional right to bodily integrity on multiple

occasions. . . . Plaintiff’s right to bodily integrity is a well-established right.”). But see Ashcroft v.

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Al-Kidd, 563 U.S. 731, 742 (2011) (“[C]ourts . . . [should not] define clearly established law at a

high level of generality.”). A review of the cases the district court cited confirms that Dr.

Silkwood-Sherer could not have been on notice that declining Newell’s request to be exempted

from physical treatments, as part of her assigned coursework, would constitute a violation of her

right to bodily integrity under the Substantive Due Process Clause of the Fourteenth Amendment.

First, to describe the facts of Claybrook is to distinguish it. It involved an innocent

bystander injured by a police-pursuit-gone-wrong, 199 F.3d at 354–55, so it could not possibly

have put Dr. Silkwood-Sherer on notice that her “particular conduct” would violate Newell’s right

to bodily integrity. Guertin, 912 F.3d at 932.

The second case, Domingo, comes slightly closer to the mark, but only because it is set in

an educational environment. There, several elementary-age students alleged that their special-

education teacher violated their Fourteenth Amendment rights by, “among other things, gagging

one student with a bandana to stop him from spitting, strapping another to a toilet to keep her from

falling from the toilet, and forcing yet another to sit with her pants down on a training toilet in full

view of her classmates to assist her with toilet-training.” 810 F.3d at 406. We found no

substantive-due-process violation, reasoning in part that “[t]he evidence establishe[d] that

[defendant] attempted to toilet-train and control her special-education students in furtherance of

valid pedagogical goals,” so even if the “educational and disciplinary methods . . . may have been

inappropriate, insensitive, and even tortious[,] they were not unconstitutional.” Id. at 416. The

behavior in Domingo was far more troubling—and further removed from normal educational

practices—than that allegedly taken by Silkwood-Sherer: requiring Newell to participate in the

same standard educational program as everyone else, a valid pedagogical goal. Domingo could

not have put Silkwood-Sherer on notice that she was committing a constitutional violation.

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Webb is also readily distinguishable. There, the defendant, McCullough, was a high school

principal chaperoning a school trip. He discovered that a group of students possessed beer and

wine in violation of school rules. 828 F.2d at 1154. McCullough told the students that they would

be sent home early from the trip. Id. In response, the plaintiff, Webb, locked herself in a bathroom.

Id. McCullough allegedly broke down the bathroom door, struck Webb with the door, threw her

to the floor, and then slapped her. Id. She later filed suit raising Fourth and Fourteenth

Amendment violations against McCullough. On appeal, we reversed the district court’s grant of

summary judgment in favor of defendant, commenting that the record did not reflect that the

“alleged blows inflicted upon Webb were in any way disciplinary.” Id. at 1158. Therefore, it

“raise[d] the possibility that the alleged blows violated Webb’s substantive Fourteenth

Amendment due process rights” because “it [was] possible that the blows were not disciplinary in

nature, [and] a trier of fact could find that under the circumstances, McCullough’s need to strike

Webb was so minimal or non-existent that the alleged blows were a brutal and inhumane abuse of

McCullough’s official power, literally shocking to the conscience.” Id. at 1159. Nothing about

that case would suggest that Dr. Silkwood-Sherer’s failure to excuse plaintiff from participating

in manual therapy activities would similarly constitute a conscience-shocking violation of her

constitutional right to bodily integrity.

In sum, the district court went astray by defining the constitutional right at issue with a

high level of generality, which runs contrary to the Supreme Court’s command to the contrary. Al-

Kidd, 563 U.S. at 742. We conclude that a reasonable official in Dr. Silkwood-Sherer’s shoes

would not understand from Claybrook, Domingo, or Webb—or any other authority that has been

cited in this action—that Newell’s right to bodily integrity would be violated if she were required

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No. 20-1864, Newell v. Cent. Mich. Univ. Bd. of Trs.

to continue participating in physical treatments that were legitimate pedagogical exercises for

physical therapy students.

Accordingly, we affirm the district court’s grant of Dr. Silkwood-Sherer’s motion for

judgment on the pleadings on the alternative ground that she is entitled to qualified immunity for

lack of clearly established law.

III.

Plaintiff also appeals the district court’s grant of summary judgment to CMU on two of her

statutory claims under the Americans with Disabilities Act and/or Rehabilitation Act.3 We review

the district court’s summary judgment determination de novo. Thomas M. Cooley Law Sch. v.

Kurzon Strauss, LLP, 759 F.3d 522, 526 (6th Cir. 2014). Summary judgment is appropriate only

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). “We consider all facts and

inferences drawn therefrom in the light most favorable to the nonmovant.” City of Wyandotte v.

Consol. Rail Corp., 262 F.3d 581, 585 (6th Cir. 2001).

A.

Newell claims that CMU failed to grant her reasonable accommodations in violation of the

ADA. “A plaintiff asserting a violation of the ADA or Rehabilitation Act bears the burden to

establish that [s]he is qualified.” Shaikh v. Lincoln Mem’l Univ., 608 F. App’x 349, 353 (6th Cir.

2015) (quoting Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454, 462 (4th Cir. 2012)).

Accordingly, it is the student’s obligation to propose an accommodation and establish that it is

reasonable. See id. “A publicly funded university is not required to provide accommodation to a

3

Because the Americans with Disabilities Act and Section 504 of the Rehabilitation Act

share the same remedies, procedures, and rights, we analyze plaintiff’s claims brought pursuant to

those laws together. See Thompson v. Williamson County, 219 F.3d 555, 557–58 (6th Cir. 2000).

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No. 20-1864, Newell v. Cent. Mich. Univ. Bd. of Trs.

student under the ADA or Rehabilitation Act until the student provides a proper diagnosis of his

claimed disability and specifically requests an accommodation.” Id. (citation omitted).

Newell’s claim here is not that CMU failed to accommodate her disability. It did. Instead,

she contends that the delay between the time she first requested accommodations for her manual

therapy labs and the time CMU granted them was unreasonable, and as such, constituted a

constructive denial of her accommodation request in violation of the ADA. While we have not

yet directly considered whether this theory is actionable under the ADA or Rehabilitation Act (or

set forth a legal framework for establishing such a violation if cognizable), the district court

surveyed several in-circuit district court opinions, and ultimately adopted the four-factor test set

forth in Edmunds v. Board of Control of Eastern Michigan University, No. 09-11648, 2009 WL

5171794 (E.D. Mich. Dec. 23, 2009). That test, however, has not been adopted by this Court.

Newell’s claims can instead be resolved under existing case law. We have stated that

“causing unnecessary delays or obstructing the process” may constitute an example of failure to

engage in the good-faith interactive process, as required by the ADA. Brumley v. UPS, 909 F.3d

823, 840 (6th Cir. 2018). But as we have also previously explained, a defendant “need not

immediately implement or accept accommodations” proposed by a student or face liability for

disability discrimination. See Tchankpa v. Ascena Retail Grp., Inc., 951 F.3d 805, 812–13 (6th

Cir. 2020) (“[A] delay in providing a reasonable accommodation is not always actionable.”). And

in an unreported decision, we stated that a plaintiff “cannot base a disability discrimination claim

upon a [university]’s delay in providing an accommodation where the delay is due to internal

processing or events outside the [university]’s control.” Gerton v. Verizon S. Inc., 145 F. App’x

159, 168 (6th Cir. 2005) (citing Kaltenberger v. Ohio Coll. of Podiatric Med., 162 F.3d 342, 437

(6th Cir. 1998)). That appears to be the case for much of the delay at issue here. From April 6,

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No. 20-1864, Newell v. Cent. Mich. Univ. Bd. of Trs.

2017 to July 11, 2017, the delay in granting a formal accommodation was attributable to OCRIE’s

investigation of Newell’s civil rights complaint. And, it bears adding, Newell last underwent

manual therapy on April 10. By exam season—the end of April and beginning of May—Newell

was already being informally accommodated; she was excused from receiving any manual

demonstrations during exams. Accordingly, while Newell did not receive her formal

accommodation letter until July, the delay after the last class session on April 10 was entirely

harmless, and the university began taking steps to accommodate her far earlier in the process.

The remaining length of the delay attributable to CMU was not unreasonable. Whether we

consider the length of time between Newell’s request that she not participate in class

demonstrations with her professor, or her request to be excused from student-on-student physical

treatments in labs, we conclude that any delay on CMU’s part was reasonable in light of all the

circumstances. Considering Newell’s request to be excused from student-led manual therapy, the

delay, functionally, was only around one-to-two months. Reading the record in her favor, Newell’s

March 15 email—though phrased somewhat vaguely—could constitute a request to be exempt

from student-on-student demonstrations,4 but by the end of April, CMU excused her from student

demonstrations during final exams, and she last was subjected to one on April 10. And as noted

above, the delay between April 6 and the formal letter on July 7 was due to internal processing

prompted by Newell’s civil rights complaint. The record also reveals efforts by faculty—during

the alleged delay period—to engage in good faith efforts to create a dialogue with Newell. We

agree with the district court that, in light of the overall context of this case, CMU’s delay was

4

We note that three days later, in her March 18 email to Dr. Zipple, Newell noted that she

did not usually have issues with her classmates performing techniques on her, sending mixed

messages to the faculty. Still, though, we must read the record in Newell’s favor at this stage.

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No. 20-1864, Newell v. Cent. Mich. Univ. Bd. of Trs.

“limited” in nature and not suggestive of a constructive denial of accommodation in violation of

the ADA.

Arguing to the contrary, Newell contends that the district court erred by using March 2017

rather than January 2017 as the starting point for the delay in requested accommodations. But

rather than rely on record evidence to support her argument, Newell relies solely on allegations

from her First Amended Complaint (which is not even the operative complaint in the action).

Because this complaint was not verified, it is not an admissible exhibit for Rule 56 purposes. See

King v. Harwood, 852 F.3d 568, 578 (6th Cir. 2017). While we review the district court’s grant

of summary judgment de novo, it is plaintiff’s obligation to support her argument for reversal with

record evidence that establishes a genuine dispute of material fact for trial. See Brenay v.

Schartow, 709 F. App’x 331, 336 (6th Cir. 2017) (“[I]t is not for the court to search the record and

construct arguments. Parties must do that for themselves.”). Newell fails to do so here.

What is more, CMU acted reasonably throughout the duration of Newell’s alleged period

of delay. CMU provided multiple alternative accommodations before and during the Spring 2017

semester and met with her several times to engage in the interactive process, which the district

court correctly interpreted to be signs of good faith. See Jakubowski v. Christ Hosp., Inc., 627 F.3d

195, 202–03 (6th Cir. 2010).

Newell argues that CMU did not engage in good faith because it “only reached out to [her]

to schedule a meeting regarding the disciplinary action,” and that it did not schedule a meeting to

discuss her accommodations. But the record tells a different tale. At the time Dr. Perkins emailed

Newell to set up the disciplinary meeting, the sole issue up for discussion was plaintiff’s perceived

lack of professionalism and poor attendance. It was only after that email that Newell requested

that the meeting also incorporate a discussion of additional accommodations she desired, and CMU

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No. 20-1864, Newell v. Cent. Mich. Univ. Bd. of Trs.

honored her request by discussing potential accommodations with her on March 28, 2017. Newell

also argues that CMU offered her no alternative accommodations until the July 2017 formal letter,

but this argument simply omits the fact that she was excused from receiving treatments during her

Spring 2017 exams—an informal accommodation demonstrating that CMU took good-faith steps

to work with her while it formally investigated her internal complaint.

Accordingly, we affirm the district court’s grant of summary judgment in favor of CMU

on this claim.5

B.

Newell also asserts that she was subject to a hostile educational environment because CMU

subjected her to severe, pervasive, and objectively offensive unwelcome harassment based on her

disability. The district court observed that “[t]here does not appear to be a claim of ‘hostile

education environment’ recognized by the Sixth Circuit” under the ADA or Rehabilitation Act.

However, it analyzed Newell’s claim under the analogous Title IX framework for claims of hostile

educational environment based on sex and concluded that even if such a claim existed, summary

judgment in favor of CMU was warranted. The parties do not dispute this legal framework on

appeal. In the absence of a dispute over the issue between the parties and briefing fleshing out any

differences, we leave consideration of the framework’s acceptability for another day.

Assuming for purposes of argument that a claim for creating a hostile educational

environment exists under the ADA or Rehabilitation Act, it would be plaintiff’s burden to establish

that she experienced severe and pervasive harassment on the basis of her disability. Cf. Williams

v. Gen. Motors Corp., 187 F.3d 553, 560 (6th Cir. 1999) (Title VII); Doe, 103 F.3d at 515

5

Because we conclude that the district court properly granted CMU’s motion for summary

judgment, we need not consider its alternative argument that plaintiff failed to prove intentional

discrimination as required to recover monetary damages.

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No. 20-1864, Newell v. Cent. Mich. Univ. Bd. of Trs.

(“[T]he elements to state a supervisory hostile environment claim under Title VII equally apply

under Title IX.”). In other words, Newell must establish that her “educational experience was

‘permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or

pervasive [so as] to alter the conditions of [her]’ educational environment.” Doe v. Miami Univ.,

882 F.3d 579, 590 (6th Cir. 2018) (first alteration in original) (quoting Harris v. Forklift Sys., Inc.,

510 U.S. 17, 21 (1993)). The parties agree that Newell would have to satisfy both a subjective and

objective component: “(a) the conduct must be severe or pervasive enough to create

an environment that a reasonable person would find hostile or abusive; and (b) [p]laintiff must

subjectively regard the environment as abusive.” Klemenic v. Ohio St. Univ., 10 F. Supp. 2d 911,

916 (S.D. Ohio 1998) (citing Harris, 510 U.S. at 21–22). When evaluating hostile environment

claims in other settings, we consider the frequency of the discriminatory conduct, its severity,

whether the conduct contained a physical threat or humiliation, the degree to which the conduct

affected the plaintiff’s performance, and whether the plaintiff suffered psychological harm as a

result of the conduct. Id.

The district court concluded that no reasonable juror could find that Newell subjectively

regarded her educational environment as abusive:

Plaintiff does not allege that her scholastic performance dropped as a result of her

requests for accommodation or the alleged acts of retaliation by CMU staff. Rather,

Plaintiff maintained a 3.67 GPA. Plaintiff contends that she is currently on medical

leave, but this medical leave is taking place after a full semester in which her

requested accommodations were granted. Plaintiff claims that she intends to return

to CMU once she is physically able to do so. Plaintiff does not provide evidence

that she was humiliated, received discrimination based physical threats, or that she

required psychological therapy due to her experience at CMU. Without providing

evidence that aligns with the factors set by the Supreme Court, Plaintiff is unable

to establish the subjective component of the abusive educational environment test.

(Record citations omitted). Plaintiff’s arguments on appeal do not persuade us that the district

court erred. First, she says that the district court wrongly required her to establish each of the

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No. 20-1864, Newell v. Cent. Mich. Univ. Bd. of Trs.

factors enumerated in Klemenic. That is incorrect. The district court recognized that “no single

factor is dispositive,” and instead concluded that Newell had not provided evidence of any of the

factors. Second, plaintiff notes that she has “paid in full for her program,” so she has “no choice

but to return” after her medical leave. But it is not clear to us how her payments to the university

tend to prove or disprove that she was subject to a hostile educational environment during the time

covered by the complaint (though they may explain why she is returning).

Third, Newell says she presented evidence that her “psychological well-being suffered

because of the discrimination she was facing” because she was diagnosed with anxiety and irritable

bowel syndrome following the Spring 2017 semester. But again, Newell makes this claim without

any citation to the record. She also did not cite her diagnoses below as evidence of harassment in

response to CMU’s motion for summary judgment. Thus, plaintiff is attempting to build a better

case on appeal than she presented to the district court. We typically do not review forfeited

arguments like plaintiff’s, see Thomas M. Cooley Law Sch., 759 F.3d at 528 (“It is well-settled

that this court’s function is to review the case presented to the district court, rather than a better

case fashioned after an unfavorable order.”) (citation omitted)), and we see no reason to excuse

the forfeiture here, see Swanigan v. FCA US LLC, 938 F.3d 779, 788–89 (6th Cir. 2019).

Fourth, Newell argues that the district court erred by finding that CMU had not engaged in

any threatening behavior because “the discriminatory conduct committed by . . . CMU (i.e.,

denying Plaintiff-Appellant her reasonable accommodations) was entirely physically threatening

to Plaintiff-Appellant’s safety as she was continuously injured” because of the lack of

accommodations. Again, this is an argument presented for the first time on appeal, so it is

forfeited. Swanigan, 938 F.3d at 788–89.

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No. 20-1864, Newell v. Cent. Mich. Univ. Bd. of Trs.

Finally, Newell argues that she suffered a “complete breakdown” during the March 28

meeting with Silkwood-Sherer, citing portions of the transcript of that meeting. This argument

too was raised for the first time on appeal, and we decline to address it for the same reasons noted

above.

Accordingly, we affirm the district court’s grant of summary judgment in CMU’s favor on

Newell’s hostile-educational-environment claim.

IV.

For these reasons, we affirm the judgment of the district court.

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