Halpern v. Wake Forest University Health Sciences

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RONEN HALPERN, 

Plaintiff-Appellant,

v.

WAKE FOREST UNIVERSITY HEALTH

SCIENCES,

Defendant-Appellee.  No. 10-2162

DISABILITY RIGHTS NORTH

CAROLINA,

Amicus Supporting Appellant.



Appeal from the United States District Court

for the Middle District of North Carolina, at Greensboro.

N. Carlton Tilley, Jr., Senior District Judge.

(1:09-cv-00474-NCT-LPA)

Argued: December 8, 2011

Decided: February 28, 2012

Before NIEMEYER, MOTZ, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge Floyd wrote the opin-

ion, in which Judge Niemeyer and Judge Motz joined.

COUNSEL

ARGUED: Lisa Grafstein, LAW OFFICE OF LISA GRAF-

STEIN, PLLC, Raleigh, North Carolina, for Appellant. Jill

2 HALPERN v. WAKE FOREST UNIVERSITY

Stricklin Cox, KILPATRICK TOWNSEND & STOCKTON,

LLP, Winston-Salem, North Carolina, for Appellee. ON

BRIEF: John R. Rittelmeyer, Adrienne E. Allison, DISABIL-

ITY RIGHTS NORTH CAROLINA, Raleigh, North Caro-

lina, for Amicus Supporting Appellant.

OPINION

FLOYD, Circuit Judge:

Appellant Ronen Halpern brought an action alleging that

his dismissal from medical school for unprofessional behavior

violated the Rehabilitation Act of 1973, 29 U.S.C. § 794, and

the Americans with Disabilities Act (ADA), 42 U.S.C.

§ 12182. The district court granted summary judgment in

favor of Appellee Wake Forest University Health Sciences

(Wake Forest or the Medical School). Halpern filed this

timely appeal. Because we agree with the district court that,

with or without a reasonable accommodation, Halpern was

not "otherwise qualified" to participate in the Medical

School’s program, we affirm.

I.

A.

Halpern was enrolled in Wake Forest’s Doctor of Medicine

program from July 2004 to March 2009. As at most medical

schools, Wake Forest’s curriculum is designed as a four-year

program. During the first two years, students take classes to

acquire knowledge in core areas, and for the last two years,

students participate in rotations in different clinical environ-

ments. Prior to beginning these rotations, students must pass

Step One of the United States Medical Licensure Examination

(the Step One Exam).

HALPERN v. WAKE FOREST UNIVERSITY 3

The Medical School’s Student Bulletin outlines the seven

fundamental educational goals of its curriculum. One of these

is that students establish "[p]rofessional [a]ttitudes and

[b]ehavior." The Bulletin instructs that to satisfy this goal,

students must demonstrate, prior to graduating, their respect

for and ability to work with other health care professionals,

adherence to the highest standards of integrity, ability to

admit mistakes and lack of knowledge, and other identified

aspects of professional behavior.

B.

Halpern has been diagnosed with Attention Deficit Hyp-

eractivity Disorder (ADHD) and anxiety disorder—not other-

wise specified,1 both of which he treats with prescription

medications. He received his ADHD diagnosis while he was

an undergraduate student at Emory University, and Emory

provided accommodations for this disability. Upon matricu-

lating at Wake Forest in July 2004, Halpern failed to disclose

his ADHD diagnosis, and he did not request any disability-

related accommodations.

Halpern’s difficulties with professionalism began almost

immediately after his arrival at the Medical School and con-

tinued throughout the first two years of his enrollment. In

August 2004, Academic Computing staff reported that Halp-

ern had acted in a "very abusive" manner that was "far and

beyond worse" than anything they had experienced with other

students. Dr. Joseph Ernest, then-Associate Dean of Student

Services, met with Halpern and convinced him to apologize

1

Dr. Robert Finch testified in a deposition that he first diagnosed Halp-

ern with an anxiety disorder in the spring of 2006, during Halpern’s sec-

ond year as a medical student. Halpern could not recall the precise date

that he received this diagnosis but related that he believed it occurred

while he was enrolled in the Medical School. Halpern informed the school

of his anxiety disorder only after the Student Progress and Promotions

Committee recommended his dismissal.

4 HALPERN v. WAKE FOREST UNIVERSITY

for his behavior so as to "set[] a more professional standard

for his interactions" with Academic Computing.

During the fall of his second year of medical school, Halp-

ern was absent from a small group session without notice. He

falsely represented to faculty members inquiring into his

absence that he had given advance notice to the group facilita-

tors that he would not be present. When confronted, he

retorted that he "got more out of" a different small group ses-

sion that he had opted to attend without permission "than any

. . . lecture, small group, or . . . class assignment to date." Sub-

sequently, he was late to a lecture but signed the attendance

sheet as though he had arrived on time. Faculty members con-

tacted him regarding the discrepancy, and he replied that he

was already "well aware of" the issues discussed. Halpern

now attributes his conduct during this period to side effects of

his ADHD medication.

Halpern experienced a severe reaction to this medication

during the spring of his second year of school. He first

informed the Medical School of a potential problem in March

2006, when he asked to postpone his Step One Exam. After

Halpern presented a doctor’s note explaining that he was suf-

fering an adverse reaction to medication, the Medical School

approved Halpern’s request to delay the exam until May

2006. In May, Halpern asked to delay the exam further, ini-

tially because of car problems. After the school informed him

that this was an insufficient reason and that the school was

unable to provide him with an alternate vehicle as he had

requested, he sought and received an additional medical post-

ponement. He successfully took the Step One Exam in June

2006.

From June 2006 to August 2006, Halpern participated in an

internal medicine clinical rotation. It is undisputed his perfor-

mance in this rotation was deficient. His evaluation indicates

he had numerous problems, including a below-average fund

of medical knowledge and difficulty forming differential

HALPERN v. WAKE FOREST UNIVERSITY 5

diagnoses. His "largest obstacle," however, "was his frequent

lapses in professionalism": He was resistant to feedback,

lacked interpersonal skills, and was absent without permission

for more than one week. Additionally, Halpern failed to use

an electronic log system, and he resisted efforts to help cor-

rect what he insisted was a technical problem, claiming that

he had "more important things to do, like see patients." Aca-

demic Computing staff ultimately concluded that he was

refusing to enter the necessary data, thereby preventing staff

and faculty from recording feedback on his performance.

After failing this rotation, Halpern met with Dr. Ernest and

revealed that he had not slept in twelve days. Shortly thereaf-

ter, Halpern went on medical leave to address the severe side

effects of his medications.

Halpern returned to the Medical School in February 2007.

During conversations with Dr. Ernest discussing his return to

rotations, Halpern indicated that he might seek accommoda-

tions for his medication-related insomnia, but he did not

reveal his ADHD diagnosis. Dr. Ernest suggested that Halp-

ern meet with each clerkship director prior to beginning a

rotation to discuss their policy regarding absences, but he

noted that some of the accommodations Halpern want-

ed—including the ability to call out of work without prior

notice if he had been unable to sleep—likely would be infea-

sible. Dr. Ernest explained that, like practicing physicians,

medical students were expected to provide advance notice of

absences whenever possible and to coordinate coverage for

patient care. Halpern reports that he felt discouraged from

seeking an accommodation, and he failed to submit a formal

request for any accommodation. In this meeting with Dr.

Ernest, Halpern signed an acknowledgement that he was on

"Academic or Professional Probation" as a result of failing a

rotation.

Halpern resumed clinical rotations in April 2007. From

April 2007 to October 2008, he successfully completed ten

clinical rotations. The evaluations for these rotations show he

6 HALPERN v. WAKE FOREST UNIVERSITY

received either passing or honors marks in the "Patient Rap-

port/Professionalism" category, and many of the comments

regarding his performance were positive. But, these records

also reveal several incidents of unprofessional behavior in

connection with his rotations. His neurology evaluation noted

he missed a required lecture with the clerkship director. He

also failed to appear for a family medicine examination in

October 2007 and did not respond when paged. Although Dr.

Ernest recommended that the family medicine faculty give

him a failing grade for this exam, they permitted him to take

it at a later date. The evaluation of his obstetrics/gynecology

(OB/GYN) rotation was particularly critical. The evaluator

reported Halpern had difficulty with constructive criticism

and recommended that he "[b]e more humble," "accept feed-

back graciously," and "[r]ealize that rules apply to [him] as

well as everyone else."

His interaction with staff members revealed more, and

more acute, problems with professionalism. In April 2007,

shortly after his return from medical leave, he paced back and

forth in the financial aid office for forty-five minutes stating

that someone should give him a scholarship to become a

trauma surgeon. The financial aid director reported this

bizarre behavior made her "very nervous."

In December 2007, Halpern requested, for the first time, an

accommodation for his ADHD—specifically, testing accom-

modations for a surgery examination. He emailed this request

to Dr. Ernest. Although Dr. Ernest informed him that the

school required him to meet with a faculty member prior to

receiving accommodations, he repeatedly sought to receive

accommodations without first attending such a meeting. Halp-

ern neglected to produce documentation of his disability until

the day of the exam; nevertheless, the Medical School pro-

vided the requested accommodations.

Halpern failed to respond in October 2008 to repeated

requests from student services staff that he review the "Dean’s

HALPERN v. WAKE FOREST UNIVERSITY 7

Letter" to be mailed out with his residency applications. Sev-

eral hours after the deadline to respond had passed, he

appeared at the student services office, "rude[ly]" insisting

that the letter contained numerous errors and expressing dis-

belief that the staff member responsible for the letter was not

there.

Finally, in November 2008, Halpern failed to send letters

of appreciation to scholarship donors, despite numerous

reminders. Although typically this would not have resulted in

expulsion, because Halpern was on probation due to his fail-

ure of the internal medicine rotation, the Medical School

referred his file to the Student Progress and Promotions Com-

mittee (SPPC), which makes disciplinary recommendations to

the Medical School’s dean. A student may appeal the SPPC’s

recommendation to the Academic Appeals Committee, but the

dean of the Medical School makes the ultimate determination

regarding discipline.

Halpern appeared before the SPPC in December 2008. Dur-

ing this appearance, he maintained that his medical condition

did not affect his ability to "perform optimally in the medical

curriculum." He further asserted his belief that the incidents

of unprofessionalism "were isolated" and that he had "ad-

dressed them." After reviewing his records, the SPPC voted

to recommend Halpern’s dismissal based on a pattern of

unprofessional behavior.

Halpern appealed to the Academic Appeals Committee

through a letter to Associate Dean of Education, Dr. K. Pat-

rick Ober. Halpern wrote that he was aware of his "behavioral

tendencies"—including excessive defensiveness, intolerance

of others, and rudeness—which he attributed both to his

ADHD and to cultural differences between Israel, where he

grew up, and the United States. Halpern suggested a "special

remediation" plan including a comprehensive assessment by

a treatment team, participation in a program for distressed

physicians, continuing treatment by his psychiatrist, and

8 HALPERN v. WAKE FOREST UNIVERSITY

"strict probation." He also submitted letters from his psychia-

trist, Dr. Doreen Hughes, who ascribed his behavior to

ADHD, an anxiety disorder, and childhood exposure to

trauma, family modeling, and first-hand accounts of the Holo-

caust. After reviewing these materials and Halpern’s record,

the Academic Appeals Committee upheld the SPPC’s recom-

mendation.

Halpern then appealed to the Dean of the Medical School,

Dr. William Applegate. Dr. Applegate considered and

rejected alternatives to dismissal, including Halpern’s sug-

gested plan. Dr. Applegate explained that he believed, in light

of the pattern of behavior Halpern engaged in both before and

after his medical leave, Halpern inevitably would revert to

unprofessional conduct. Particularly concerning was Halp-

ern’s treatment of staff members. While Halpern might be

able to control his behavior towards other physicians, Dr.

Applegate worried that the incidents with Medical School

staff indicated he would treat nonphysician health care pro-

viders in a disrespectful and unprofessional manner. Such an

attitude would undermine the team-centered approach to

health care that Wake Forest sought to instill and would have

a deleterious effect on patient care. Concluding that no

accommodation could adequately alleviate these concerns, Dr.

Applegate adopted the SPPC’s recommendation of dismissal.

C.

Halpern brought suit in the Western District of North Caro-

lina, alleging that his dismissal violated the Rehabilitation Act

and ADA because the Medical School failed to make reason-

able accommodations for his disability. The district court,

adopting the magistrate judge’s report and recommendation,

granted summary judgment in favor of Wake Forest on the

ground that Halpern was not "otherwise qualified" as a medi-

cal student because demonstrating professionalism was a fun-

damental aspect of the Medical School’s program. The court

further held that Halpern’s proposed accommoda-

HALPERN v. WAKE FOREST UNIVERSITY 9

tion—obtaining therapeutic treatment, participating in a dis-

tressed physicians program, and continuing as a student on

strict probation—was unreasonable "because of the uncer-

tainty of the duration and the prospects for success of such

behavior modification efforts."

II.

We review de novo an order granting summary judgment.

Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc).

We will affirm the grant of summary judgment if, viewing the

evidence and drawing all reasonable inferences therefrom in

favor of the nonmovant, there are no disputed material facts

and the moving party is entitled to judgment as a matter of

law. Id.

A.

Wake Forest, as a "program . . . receiving Federal financial

assistance," is subject to the Rehabilitation Act of 1973. 29

U.S.C. § 794(a). In addition, because it is an "undergraduate,

or postgraduate private school, or other place of education,"

42 U.S.C. § 12181(7)(J), Wake Forest qualifies as a "public

accommodation" subject to Title III of the ADA.2 See, e.g.,

2

In his complaint, Halpern alleged that Wake Forest violated Title II,

which regulates public entities, rather than Title III, of the ADA. He con-

tends, however, that his claim was merely mislabeled and that it was clear

he was seeking to bring a Title III claim. Because the correction of the

legal basis for the claim would not prejudice Wake Forest, he argues, we

should treat this claim as arising under Title III. See Labram v. Havel, 43

F.3d 918, 920 (4th Cir. 1995) (holding that the mislabeling of a claim,

even if "reflect[ing] a flat misapprehension by counsel respecting a

claim’s legal basis," does not warrant dismissal "so long as any needed

correction of legal theory will not prejudice the opposing party"). We need

not decide at this time whether to construe Halpern’s complaint as stating

a Title III claim. As we explain, the "otherwise qualified" element is iden-

tical for claims brought under the Rehabilitation Act and the ADA, and

Wake Forest would be entitled to summary judgment on any Title III

10 HALPERN v. WAKE FOREST UNIVERSITY

Singh v. George Wash. Univ. Sch. of Med. & Health Scis., 508

F.3d 1097 (D.C. Cir. 2007) (applying Title III to a private

medical school); Kaltenberger v. Ohio Coll. of Podiatric

Med., 162 F.3d 432 (6th Cir. 1998) (applying Title III to a pri-

vate podiatric college).

The Rehabilitation Act precludes federal grantees from

excluding, denying benefits to, or discriminating against any

"otherwise qualified individual . . . solely by reason of her or

his disability." 29 U.S.C. § 794(a). Title III of the ADA pro-

vides, in relevant part, "No individual shall be discriminated

against on the basis of disability in the full and equal enjoy-

ment of the goods, services, facilities, privileges, advantages,

or accommodations of any place of public accommodation."

42 U.S.C. § 12182(a). This section goes on to define "dis-

crimination" as including "a failure to make reasonable modi-

fications" that are "necessary" to provide a disabled individual

with such full and equal enjoyment, "unless the entity can

demonstrate that making such modifications would funda-

mentally alter the nature of such goods, services, facilities,

privileges, advantages, or accommodations." Id.

§ 12182(b)(2)(A)(ii).

To the extent possible, we construe the ADA and Rehabili-

tation Act to impose similar requirements. See Freilich v.

Upper Chesapeake Health, Inc., 313 F.3d 205, 214 (4th Cir.

2002); Ennis v. Nat’l Ass’n of Bus. & Educ. Radio, Inc., 53

F.3d 55, 57 (4th Cir. 1995). Thus, despite the different lan-

guage these statutes employ, they require a plaintiff to demon-

strate the same elements to establish liability. See Bowers v.

NCAA, 475 F.3d 524, 535 n.12 (3d Cir. 2007) (examining

claim because the evidence in the record establishes that Halpern, with or

without reasonable accommodations, was not otherwise qualified to par-

ticipate in the Medical School’s Doctor of Medicine program. Accord-

ingly, we assume without deciding that Halpern has properly asserted a

claim under Title III of the ADA.

HALPERN v. WAKE FOREST UNIVERSITY 11

claims under the Rehabilitation Act and Titles II and III of the

ADA). In the context of a student excluded from an educa-

tional program, to prove a violation of either Act, the plaintiff

must establish that (1) he has a disability, (2) he is otherwise

qualified to participate in the defendant’s program,3 and (3) he

was excluded from the program on the basis of his disability.

See Constantine v. Rectors & Visitors of George Mason

Univ., 411 F.3d 474, 498 (4th Cir. 2005) (applying the Reha-

bilitation Act and Title II of the ADA); see also Kaltenberger,

162 F.3d at 435 (applying the Rehabilitation Act and Title III

of the ADA). The two statutes differ only with respect to the

third element, causation. To succeed on a claim under the

Rehabilitation Act, the plaintiff must establish he was

excluded "solely by reason of" his disability; the ADA

requires only that the disability was "a motivating cause" of

the exclusion. Baird ex rel. Baird v. Rose, 192 F.3d 462,

468–69 (4th Cir. 1999).

3

Title III, unlike Title II, of the ADA does not explicitly include the

"qualified individual" language used in the Rehabilitation Act. See 42

U.S.C. § 12182(a). Nevertheless, Title III implicitly incorporates the

requirement that a claimant be "otherwise qualified" because "the question

of who is ‘otherwise qualified’ and what actions constitute ‘discrimina-

tion’" are "two sides of a single coin; the ultimate question is the extent

to which a [defendant] is required to make reasonable modifications in its

programs." Alexander v. Choate, 469 U.S. 287, 299 n.19 (1985); see also

Mershon v. St. Louis Univ., 442 F.3d 1069, 1076 (8th Cir. 2006) (observ-

ing that "in most circumstances, no qualifications are required to enjoy a

public accommodation," but in the education context, "the ‘otherwise

qualified’ idea is implicit in Title III’s acknowledgment . . . that requested

modifications need not be provided if they will fundamentally alter the

nature of the program"); Bercovitch v. Baldwin Sch., Inc., 133 F.3d 141,

154 (1st Cir. 1998) (finding "little difference" between ADA Titles I, II,

and III "because many of the issues that arise in the ‘qualified’ analysis,

also arise in the context of the ‘reasonable modifications’"). In other

words, if a person, due to his disability, requires a modification to meet

the essential requirements to participate in an educational program and if

the necessary modification is unreasonable, then that person is not "quali-

fied" to participate in the program. See Bercovitch, 133 F.3d at 154.

12 HALPERN v. WAKE FOREST UNIVERSITY

Wake Forest concedes that Halpern has satisfied the first

element. His ADHD and anxiety disorder constitute disabili-

ties giving rise to protection under the Rehabilitation Act and

ADA.4 Accordingly, we consider whether the district court

erred in determining as a matter of law that Halpern was not

"otherwise qualified" to participate in the Medical School’s

program.

B.

A "qualified" individual is one "who, with or without rea-

sonable modifications to rules, policies, or practices, . . .

meets the essential eligibility requirements" for participation

in a program or activity. Constantine, 411 F.3d at 498 (quot-

ing 42 U.S.C. § 12131(2)) (internal quotation marks omitted);

see also Se. Cmty. Coll. v. Davis, 442 U.S. 397, 406 (1979)

("An otherwise qualified person is one who is able to meet all

of a program’s requirements in spite of his handicap."). A

plaintiff asserting a violation of the ADA or Rehabilitation

Act bears the burden to establish that he is qualified. Tyndall

v. Nat’l Educ. Ctrs., Inc., 31 F.3d 209, 213 (4th Cir. 1994).

To determine whether a plaintiff has satisfied this burden, a

court must decide whether he has presented sufficient evi-

dence to show (1) that he could satisfy the essential eligibility

requirements of the program, i.e., those requirements "‘that

4

Wake Forest suggests that the side effects of medications Halpern took

to treat these conditions should not be considered aspects of his disability

and, as a result, do not give rise to protection under federal law. The cases

cited by Wake Forest in support of this argument, however, are inapposite

because they address treatment and medication for nondisabling condi-

tions, so those courts were determining whether the side effects of medical

treatment could give rise to a disability that was not otherwise present.

See, e.g., Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 186–87 (3d

Cir. 2010); Hill v. Kan. City Area Transp. Auth., 181 F.3d 891, 894 (8th

Cir. 1999). It is unnecessary to reach this issue because Halpern has failed

to establish that he is otherwise qualified to participate in the Medical

School’s program. Thus, for purposes of this appeal, we assume arguendo

that the side effects Halpern suffered, including insomnia and irritability,

fall within his disability.

HALPERN v. WAKE FOREST UNIVERSITY 13

bear more than a marginal relationship to the [program] at

issue,’ and (2) if not, whether ‘any reasonable accommodation

by the [defendant] would enable’" the plaintiff to meet these

requirements.5 Id. (quoting Chandler v. City of Dallas, 2 F.3d

1385, 1393–94 (5th Cir. 1993)).

The parties dispute whether we should accord deference to

the Medical School’s professional judgment regarding Halp-

ern’s ability to satisfy the School’s essential eligibility

requirements. In the context of due-process challenges, the

Supreme Court has held that a court should defer to a school’s

professional judgment regarding a student’s academic or pro-

fessional qualifications. See Regents of the Univ. of Mich. v.

Ewing, 474 U.S. 214, 225 (1985) (stating that a court may not

override a school’s decision "unless it is such a substantial

departure from accepted academic norms as to demonstrate

that the person or committee responsible did not actually

exercise professional judgment"); Bd. of Curators of the Univ.

of Mo. v. Horowitz, 435 U.S. 78, 92 (1978) ("Courts are par-

ticularly ill-equipped to evaluate academic performance.").

Based on these cases, our sister circuits have overwhelm-

ingly extended some level of deference to schools’ profes-

sional judgments regarding students’ qualifications when

addressing disability discrimination claims. See Powell v.

Nat’l Bd. of Med. Exam’rs, 364 F.3d 79, 88 (2d Cir. 2004);

Amir v. St. Louis Univ., 184 F.3d 1017, 1028 (8th Cir. 1999);

Zukle v. Regents of the Univ. of Cal., 166 F.3d 1041, 1047–48

(9th Cir. 1999); Kaltenberger, 162 F.3d at 436; McGregor v.

La. State Univ. Bd. of Supervisors, 3 F.3d 850, 859 (5th Cir.

1993); Wynne v. Tufts Univ. Sch. of Med., 932 F.2d 19, 25

5

"The standard for reasonableness under the ADA does not differ from

the one employed under the Rehabilitation Act," even though "Title III of

the ADA uses the term ‘reasonable modification’ rather than ‘reasonable

accommodation,’" the term utilized in Rehabilitation Act doctrine. For-

tyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1083 (9th Cir. 2004)

(quoting Wong v. Regents of the Univ. of Cal., 192 F.3d 807, 816 n.26 (9th

Cir. 1999)) (internal quotation marks omitted).

14 HALPERN v. WAKE FOREST UNIVERSITY

(1st Cir. 1991) (en banc); Anderson v. Univ. of Wis., 841 F.2d

737, 741 (7th Cir. 1988); see also Millington v. Temple Univ.

Sch. of Dentistry, 261 F. App’x 363, 367 (3d Cir. 2008). And

we have observed in dicta that, in general, "great deference to

a school’s determination of the qualifications of a hopeful stu-

dent" is appropriate "because courts are particularly ill-

equipped to evaluate academic performance." Davis v. Univ.

of N.C., 263 F.3d 95, 101–02 (4th Cir. 2001) (dictum) (quot-

ing Horowitz, 435 U.S. at 92) (internal quotation marks omit-

ted).

Because we are likewise at a comparative disadvantage in

determining whether Halpern is qualified to continue in the

Doctor of Medicine program and whether his proposed

accommodations would effect substantial modifications to the

Medical School’s program, we accord great respect to Wake

Forest’s professional judgments on these issues. But, in doing

so, we must take care "not to allow academic decisions to dis-

guise truly discriminatory requirements," Zukle, 166 F.3d at

1048, so we assiduously review the record to ensure that the

educational institution has "conscientiously carried out [its]

statutory obligation" to provide reasonable accommodations

to persons with disabilities, id. (quoting Wynne, 932 F.2d

25–26) (internal quotation marks omitted).

Adopting an appropriately deferential view, we find that

professionalism was an essential requirement of the Medical

School’s program and that, without an accommodation, Halp-

ern could not satisfy this requirement. Throughout the period

of Halpern’s enrollment at Wake Forest, the Medical School

identified professionalism as a fundamental goal of its educa-

tional program, and it required that students demonstrate pro-

fessional behavior and attitudes prior to graduating. The

Student Bulletin explicated different aspects of professional

behavior that the school sought to instill, such as the ability

to collaborate with others and to admit mistakes gracefully.

As Dr. Applegate explained in his affidavit, the Medical

School emphasized professionalism based on evidence that

HALPERN v. WAKE FOREST UNIVERSITY 15

inappropriate and disruptive behavior by physicians increases

adverse patient outcomes.

Halpern does not dispute that the Medical School’s profes-

sionalism requirement is essential. Instead, he maintains that

because he received passing marks in professionalism in his

clinical rotations after returning from medical leave, a ques-

tion of fact exists as to whether he satisfied the requirement.

This argument, however, fails to take into account Halpern’s

treatment of staff both before and after his medical leave. We

accept Dr. Applegate’s reasonable inference that Halpern’s

unprofessional treatment of staff, in contrast with his behavior

towards faculty, suggests that he would interact poorly with

health care providers who are not physicians, thereby under-

mining the team approach to health care. Halpern’s contention

also ignores the instances of unprofessional conduct reflected

in his clinical evaluations, such as his resistance to construc-

tive criticism during his OB/GYN rotation and failure to

appear for a family medicine exam. Although, in isolation,

these may not have warranted his evaluators giving him fail-

ing grades in professionalism, the school reasonably consid-

ered them as part of an ongoing pattern of unprofessional

behavior.

Halpern’s own admissions support the conclusion that

without an accommodation he is unqualified to participate in

the Doctor of Medicine program. In his letters appealing the

SPPC’s recommendation of dismissal, Halpern acknowledged

his problematic behavioral tendencies. He did not argue that

the professionalism requirement was nonessential or that he

should be exempted. Instead, he requested the opportunity to

undergo treatment and demonstrate he could satisfy the

School’s professionalism standards. Similarly, when deposed,

he conceded that his past behavior had been perceived as

rude, and he stated that the Medical School should not permit

him to become a doctor if he was rude or hostile.

In light of the extensive evidence of Halpern’s unprofes-

sional behavior—both before and after his medical

16 HALPERN v. WAKE FOREST UNIVERSITY

leave—and the potential for such behavior to undermine

patient care, we have no difficulty concluding that, absent an

accommodation, Halpern was not "otherwise qualified" for

the Medical School’s program. Therefore, we next consider

whether there was a reasonable accommodation available by

which Halpern would have become qualified.

C.

Federal law mandates that federal grantees and public

accommodations make "reasonable," but not "substantial" or

"fundamental," modifications to accommodate persons with

disabilities. See Alexander, 469 U.S. at 300. A modification

"is not reasonable if it either imposes undue financial and

administrative burdens . . . or requires a fundamental alter-

ation in the nature of the program." Sch. Bd. v. Arline, 480

U.S. 273, 287 n.17 (1987) (citation omitted) (quoting Davis,

442 U.S. at 410, 412) (internal quotation marks omitted); see

also PGA Tour, Inc. v. Martin, 532 U.S. 661, 683 n.38 (2001)

(requiring that a modification be reasonable, be necessary,

and not fundamentally alter the nature of the program). A

modification to "an essential aspect" of the program consti-

tutes a "fundamental alteration" and, therefore, is an unrea-

sonable accommodation. PGA Tour, 532 U.S. at 682–83.

Although determination of the reasonableness of a proposed

modification is often fact-specific, a court may grant sum-

mary judgment in favor of a defendant if the plaintiff fails to

present evidence from which a jury may infer that the accom-

modation is "reasonable on its face, i.e., ordinarily or in the

run of cases," or if the defendant establishes as a matter of law

that the proposed modification will cause "undue hardship in

the particular circumstances." U.S. Airways, Inc. v. Barnett,

535 U.S. 391, 401–02 (2002).

As discussed above, we find that the requirement that stu-

dents demonstrate professional behavior is an essential aspect

of Wake Forest’s Doctor of Medicine program. Accordingly,

Halpern could not reasonably seek to avoid or lessen the pro-

HALPERN v. WAKE FOREST UNIVERSITY 17

fessionalism requirement; rather, he must show that a reason-

able accommodation would have permitted him to satisfy this

criterion. He contends that his proposed special remediation

plan, which included ongoing psychiatric treatment, participa-

tion in a program for distressed physicians, and continuing in

the Medical School on strict probation, constituted a reason-

able accommodation for his disability through which he could

have met Wake Forest’s standards for professionalism. We

disagree. For the following reasons, we conclude that Halp-

ern’s proposed special remediation plan was unreasonable on

its face and, as a result, that the district court properly granted

summary judgment in favor of Wake Forest.

First, Halpern’s request for an accommodation was

untimely. The school was not obligated to accommodate Hal-

pern’s disability until he "provided a proper diagnosis . . . and

requested specific accommodation." Kaltenberger, 162 F.3d

at 437. Halpern failed to inform Wake Forest that he was dis-

abled until December 2007, and when he did so, he requested

only testing accommodations. Even when he appeared before

the SPPC, he maintained that his medical conditions did not

impact his ability to participate in the Medical Schoool. He

suggested, for the first time, that his behavioral problems

were manifestations of a disability in his letter to Dr. Ober

appealing the SPPC’s recommendation of dismissal.

We have previously observed that "misconduct—even mis-

conduct related to a disability—is not itself a disability" and

may be a basis for dismissal. Martinson v. Kinney Shoe Corp.,

104 F.3d 683, 686 n.3 (4th Cir. 1997); see also Tyndall, 31

F.3d at 214–15 (finding the dismissal of an employee for

attendance problems did not constitute discrimination, even if

her disability caused her absences); Little v. FBI, 1 F.3d 255,

259 (4th Cir. 1993) (holding that employee could be termi-

nated for intoxication, although it was related to alcoholism,

a disability). By the time Halpern requested that the Medical

School implement his special remediation plan, he had

already engaged in numerous unprofessional acts that war-

18 HALPERN v. WAKE FOREST UNIVERSITY

ranted his dismissal, including acting abusively towards staff,

multiple unexcused absences, repeated failure to meet dead-

lines, and tardiness. Thus, Halpern sought not a disability

accommodation, but "a second chance to better control [his]

treatable medical condition." Hill v. Kan. City Area Transp.

Auth., 181 F.3d 891, 894 (8th Cir. 1999). This, however, "is

not a cause of action under the ADA." Id. A school, if

informed that a student has a disability with behavioral mani-

festations, may be obligated to make accommodations to help

the student avoid engaging in misconduct. But, the law does

not require the school to ignore misconduct that has occurred

because the student subsequently asserts it was the result of

a disability. Halpern’s argument that he was owed an opportu-

nity to continue at the Medical School and correct his misbe-

havior is, therefore, without merit.

Second, the indefinite duration and uncertain likelihood of

success of Halpern’s proposed accommodation renders it

unreasonable. In Myers v. Hose, 50 F.3d 278 (4th Cir. 1995),

we held that the Rehabilitation Act and ADA do not require

an employer to give a disabled employee "an indefinite period

of time to correct [a] disabling condition" that renders him

unqualified. Id. at 280. The plaintiff in Myers had worked as

a bus driver until health problems prevented him from passing

mandatory physical examinations. See id. at 280–81. After his

forced retirement, he filed suit, arguing that federal disability

laws compelled his employer to provide a grace period to treat

his medical conditions. Id. at 282. We rejected this accommo-

dation as unreasonable because it required the employer "to

wait indefinitely" for an uncertain cure. Id. at 283. A "reason-

able accommodation," we declared, "is by its terms most logi-

cally construed as that which presently, or in the immediate

future, enables the employee to perform the essential func-

tions of the job in question." Id.

Likewise, the Rehabilitation Act and ADA do not obligate

a school to permit a student to continue in an educational pro-

gram with the hope that at some unknown time in the future

HALPERN v. WAKE FOREST UNIVERSITY 19

he will be able to satisfy the program’s essential requirements.

At the time Halpern proposed the special remediation plan, he

had already delayed his graduation by one year due to his

medical leave, and he was seeking to further extend his medi-

cal education to have an opportunity to demonstrate his ability

to behave professionally. Neither Halpern nor his expert could

specify a time at which his treatment would be complete;

indeed, they acknowledged there was no guarantee Halpern’s

treatment plan would be successful. Consequently, it was

unreasonable to demand that Wake Forest wait to determine

if and when the plan would enable Halpern to meet its profes-

sionalism standards.

Finally, we reject Halpern’s argument that even if his pro-

posed accommodation was unreasonable, Wake Forest vio-

lated the ADA by failing to engage in an "interactive process

to identify a reasonable accommodation." Haneke v. Mid-Atl.

Capital Mgmt., 131 F. App’x 399, 400 (4th Cir. 2005) (per

curiam). An interactive effort to identify an accommodation

would not have corrected the untimeliness of Halpern’s

request or erased his record of prior misconduct. Dr. Apple-

gate’s affidavit indicates that he carefully considered alterna-

tives to dismissal, but, because Halpern had consistently

reverted to unprofessional conduct even after the Medical

School’s officials attempted to intervene, he was unable to

identify any accommodation that could ensure Halpern would

not engage in such behavior as a practicing physician. Thus,

he concluded that all possible accommodations permitting

Halpern to remain in the program would be unreasonable

because they would allow Halpern to graduate with a medical

degree.

We disagree with Halpern’s contention that this conclusion

reflects stereotypes that persons who experience depression or

anxiety disorders are unable to change or modify their behav-

ior. We believe, instead, that Dr. Applegate’s decision was

based on a careful consideration of Halpern’s student record

and, in particular, the fact that, despite numerous attempts by

20 HALPERN v. WAKE FOREST UNIVERSITY

Medical School faculty to assist Halpern in rectifying his con-

duct, he continually lapsed into problematic practices.

Although Halpern failed to disclose his ADHD diagnosis until

December 2007 and did not request accommodations for

behavioral manifestations of his disability until after the SPPC

recommended his dismissal, the Medical School made signifi-

cant efforts throughout the period of Halpern’s enrollment to

help him satisfy its academic and professional standards. The

record shows that Dr. Ernest, in his role as Associate Dean of

Student Services, often interceded when Halpern had an alter-

cation or incident with faculty or staff and attempted to coun-

sel Halpern on appropriate behavior. In addition, the School

granted Halpern the medical leave and testing accommoda-

tions that he requested. Despite these efforts, Halpern’s lack

of professionalism remained an issue. Where a professional

school has reasonably determined based on an identifiable

pattern of prior conduct that a student is unfit to join his cho-

sen profession, federal law does not obligate the school to

allow that student to remain in and graduate from its educa-

tional program. As the evidence in the record amply justifies

Dr. Applegate’s conclusion, we find that the Medical School

did not violate the Rehabilitation Act or the ADA.

III.

Because, with or without reasonable accommodations, Hal-

pern is unqualified for Wake Forest’s Doctor of Medicine

program, we affirm the district court’s grant of summary

judgment.

AFFIRMED