Sjöstrand v. Ohio State University

MARTHA CRAIG DAUGHTREY, Circuit Judge,

concurring in part and dissenting in part.

Plaintiff Caitlin Sjostrand contends that Ohio State University violated the Americans with Disabilities Act when the university denied her admission to its doctoral program in school psychology, despite what she claimed were her superior qualifications. She attributed the rejection of her application to knowledge by the faculty members who interviewed her that she had been diagnosed with Crohn’s disease. However, the record demonstrates beyond question that Sjostrand’s allegations of disability discrimination were premised wholly on factual inconsistencies, speculation, and conjecture. As a result, I am convinced that there was no basis on which to dispute the university’s legitimate reasons for denying Sjostrand’s application and, further, that no reasonable jury could return a verdict in her favor. Thus, although I concur with the majority’s determination that Sjostrand met the less-than-onerous burden of establishing a prima facie case, I respectfully dissent from the conclusion that there is a genuine dispute of fact concerning the nature of the university’s explanation for its decision.

I.

In applying the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 , 93 S.Ct. 1817 , 36 L.Ed.2d 668 (1973), to Sjostrand’s claims under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132 , and the Rehabilitation Act of 1973, 29 U.S.C. § 794 (a), the majority first concludes that Sjostrand adduced evidence sufficient to establish a prima facie case of discrimination. In order to establish a prima facie case under the ADA, “plaintiffs must allege either that they are or are perceived to be handicapped ..., that they are otherwise qualified for the [position], and that they were discriminated against on the basis of their disability.” Andrews v. Ohio, 104 F.3d 803, 807 (6th Cir.1997). Plaintiffs bringing a cause of action under the Rehabilitation Act, in addition to alleging a disability and qualifications for the position, must also establish that they were denied equal treatment *603 “solely by reason of [their] disability,” 29 U.S.C. § 794 (a) (emphasis added), and that the party alleged to be discriminating against them received “Federal financial assistance.” Id.

Ohio State did not contest the fact that Sjostrand had been diagnosed with Crohn’s disease, that she had made an initial showing that she met the minimum qualifications for admission to the program, and that Ohio State receives federal financial assistance. Thus, the only disputed issue at the prima facie stage of the litigation was whether Sjostrand could point to a genuine dispute over whether she was denied admission to the school-psychology program either “by reason of’ her disability (ADA claim) or “solely by reason of’ that disability (Rehabilitation Act claim). It is important to note, however, that “[t]he burden of establishing a prima facie case ... is not onerous.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 , 101 S.Ct. 1089 , 67 L.Ed.2d 207 (1981). Because the standard is so easily met, I am willing to concede that Sjostrand made out a prima facie case. Concomitantly, the majority concedes that Ohio State satisfied its burden of articulating legitimate, nondiscriminatory reasons for its decision to reject her application. Where we part ways is over the authenticity of those reasons — specifically, the majority’s determination that Sjostrand produced evidence sufficient to question whether the university’s rationales were anything more than pretext to cover a discriminatory purpose.

II.

The majority correctly notes that, generally, when reviewing a district court’s grant of summary judgment, we must assume the truth of the non-moving party’s evidence and construe all inferences from that evidence in the light most favorable to that non-moving party. See, e.g., Ciminillo v. Streicher, 434 F.3d 461, 464 (6th Cir.2006). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986). “In order to survive a motion for summary judgment, the non-moving party must be able to show sufficient probative evidence [that] would permit a finding in [her] favor on more than mere speculation, conjecture, or fantasy.” Lewis v. Philip Morris, Inc., 355 F.3d 515, 533 (6th Cir.2004) (internal quotation marks and citation omitted). Unfortunately for Sjostrand, a thoughtful examination of the evidence upon which the majority relies to establish a genuine dispute regarding Ohio State’s alleged discriminatory animus reveals that Sjóstrand’s case is based solely upon the type of speculation and conjecture that we are not at liberty to consider as support for a reasonable jury determination.

III.

For instance, the majority insists that we may infer that the true concern of Sjóstrand’s interviewers was actually the plaintiffs Crohn’s disease from the fact that they did not question Sjostrand about her identification of an inappropriate mentor, but “instead devoted about half the interview to a discussion of her [disability].” It is true that Sjostrand testified in her deposition that “seven to ten minutes” of her 20-minute interview with Dr. Radliff, and “seven to ten minutes” of her 20-minute interview with Dr. Joseph were spent discussing Question 10 on the school’s application: “How do you respond to stress and novel situations?” Further deposition testimony established, however, that this allegation by the plaintiff was *604 blatantly false, as shown by the following colloquy with Sjostrand:

Q. Let’s talk about question 10. What did [Professor Radliff] ask you about that question?

A. She specified that I had mentioned Crohn’s earlier in the interview and within my written application. And she asked if that would be a problem regarding my education in the school psychology program, how I would handle the stress of graduate school. (Emphasis added.)

Q. Do you recall how you responded?

A. In a response similar to that which I had written. 1 I indicated that I had learned how to manage my stress from Crohn’s and that I had not had a Crohn’s episode since high school.

Q. What, if anything, did Professor Radliff say or ask you about your response to the question?

A. She nodded in affirmation.

Q. Was there any further discussion about question 10 with Professor Radliff?

A. Not that I recall at this time.

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Q. What did Dr. Joseph ask you about question 10?

A. She framed it in the context of Crohn’s.

Q. Can you explain what you mean?

A. She mentioned that I had mentioned Crohn’s, and was I concerned that school psychology or the program at OSU would be too stressful, would the stress of the program and graduate school in general, cause a flare-up, or a Crohn’s episode, and how did I manage — or how was I planning to manage the stress of graduate school. (Emphasis added.)

Q. How did you respond?

A. In a manner similar to that which I said in Dr. Radliffs interview, that I have not had a Crohn’s episode since high school. I have learned to manage my stress through my previous experiences with Crohn’s, and I did not anticipate it being a problem.

Q. What, if anything, did Dr. Joseph say to you or ask you about your response?

A. She didn’t.

It is incomprehensible that the two questions and the two answers recounted by Sjostrand accounted for 14-20 minutes of the total 40-minute interview time. Such contradictory statements in the evidence put forth by the plaintiff justify the conclusion that Sjostrand failed to create a genuine dispute of fact in this case. As we stated in Bonds v. Cox, 20 F.3d 697, 703 (6th Cir.1994):

It is indeed difficult, under these circumstances, to determine how to consider the evidence in the light most favorable to [the non-moving party] when her own allegations regarding the crucial issues of fact are in direct conflict. We do not believe that the standard of review for summary judgment ... requires us to ignore a party’s own conflicting statements in construing the facts to her best advantage.

*605 Nor can we view as anything more than mere conjecture the conclusion that Radliffs and Joseph’s failure to ask Sjostrand about her inappropriate selection of Dr. Granello as a faculty advisor meant that the professors based their decision to reject Sjostrand’s application on the existence of her Crohn’s disease. Instead, given her application and her choice of Granello, faculty members were legitimately concerned that Sjostrand’s interest lay in school counseling, which was not part of Ohio State’s graduate program in school psychology. In order to better calculate Sjostrand’s fit with their program, Radliff s and Joseph’s questioning was calculated to tease out the applicant’s real career interests and not allow her to tailor her answers to what she thought the interviewers wanted to hear from her. Thus, when questioned about why she did not ask Sjostrand about her choice of a faculty mentor who was not in the school-psychology department, Radliff responded:

I feel like I would be more likely to — to [say], “Now, you’ve been here, you’ve seen who the faculty are” and just curious if she’s going to talk about working with one of us, what our research interests are and so forth.... I guess I would see it as kind of — maybe a potentially embarrassing issue. Wouldn’t want to come across as trying to embarrass her for indicating an incorrect faculty member.

Similarly, Joseph testified that she did not ask Sjostrand a direct question about her stated interest in school counseling— as opposed to school psychology — or about why she chose Dr. Granello as a mentor but, instead, tried to broach both subjects from a different prospective. Joseph explained:

We don’t want to lead the applicant into making responses that — that they think we want to hear. We really try to assess, ascertain whether or not this applicant is a right fit for what we have to offer in our program. So, you know, I rnean^ — I mean, we really try to kind of leave it open for them to talk about so that we can better — best assess whether or not — We don’t want to lead them in any way toward an answer or toward a response because we really want — we want it to be a natural — you know, as natural as it can be fit with — with what we have to offer.

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When I asked her questions about what her research interests are, we were looking for an opportunity for her to indicate any one of our areas of interest. So we left it open to her to indicate, because like I said, we don’t like to lead the applicant into — You know, like if she would have said Dr. Granello and then followed up and said specific — some specific things about, you know, what we have to offer and — -with regards to our research areas, that would be different.

Furthermore, all the evidence before us, including Sjostrand’s own deposition testimony, establishes without question that it was Sjostrand herself, and not the interviewers, who introduced conversation about her Crohn’s disease into the interview process. In addition, Dr. Antoinette Miranda, the third member of the school-psychology faculty, testified without contradiction that Sjostrand’s disability was never brought up or considered during the faculty’s admissions deliberations. In fact, Miranda also said that the three faculty members “were really surprised that [Sjostrand’s Crohn’s disease] was the reason she was saying she was being denied because for us that was not an issue” in making the decision, it “was not an issue that came up,” and the three professors “didn’t even talk about it.” In light of the uncontroverted record before us, for the *606 majority now to assert that there is some genuine factual dispute over whether Sjostrand’s disability factored into the school’s decision is pure speculation, bordering on the fantastical. Indeed, given the fact that Sjostrand received her undergraduate degree from Ohio State, with honors, in only two-and-one-half years, Joseph, Radliff, and Miranda were clearly on notice that the plaintiffs Crohn’s disease had not hampered, and presumably would not hamper, her academic efforts. Instead, they (and the university) relied upon legitimate, articulated reasons to deny Sjostrand admission to the graduate program.

The majority lists those reasons and then proceeds to pick apart the rationales, all the while failing to recognize that it is only pure conjecture that would allow a reasonable jury to conclude that invidious discrimination, rather than the proffered logical explanations, precipitated the admissions decision. As it must, the majority concedes that Sjostrand identified as an advisor a faculty member in a different department whose research interests did not coincide with the focus of the school-psychology program. But, instead of recognizing the legitimacy of the desire by a very small faculty to train students whose own research and career interests aligned with theirs, the majority suggests that their focus on Sjostrand’s choice of Granello as an advisor must have been an attempt to cover up a discriminatory intent. Rather than pointing to any actual facts in support of that idea, however, the majority simply notes that another applicant who was accepted into the program identified no mentor at all in her application. But choosing not to name a particular faculty member with whom to collaborate on projects within the scope of the program’s mission is very different from identifying an unavailable faculty advisor from outside the relevant academic department. It borders on the preposterous to conclude that the university’s rationale in this regard was somehow an effort to mask an intent to treat Sjostrand differently “by reason of’ or “solely by reason of’ a supposed disability that had not actually manifested itself for some three years.

The majority also holds that disputes of fact regarding the discriminatory animus of the university were manifested by its listing of the following conceded facts as additional reasons for denying Sjostrand admission to the graduate program: (1) the plaintiffs wish to serve as an itinerant psychologist who would spend a portion of her time offering counseling services to adults; (2) the failure of Sjostrand’s application to reflect an understanding of the unique niche that the Ohio State graduate program in school psychology filled and, importantly, that was seemingly at odds with Sjostrand’s career goals; (3) the plaintiffs limited experience working with children, the very focus of the school-psychology program; and (4) Sjostrand’s relative lack of research activity, even though the program leaders felt that “prior research experiences are important at the doctoral level.” Again, however, only by engaging in mere speculation and conjecture can the majority attribute invalid motives to such decision-making.

As has been made abundantly clear by the appellate record, Ohio State’s doctoral program in school psychology was a small one, served by only three faculty members. As such, the program had limited spaces available for students if the three professors were to fulfill their essential function of instructing graduate students and directing their research projects. Consequently, those in charge of the doctoral program, which had as its mission a focus on issues affecting diverse, urban school districts, sought to admit individuals *607 drawn to that mission. As Dr.. Radliff explained:

[T]he OSU School Psychology program is a specialized program, specializing in urban education. We have a social justice emphasis, and so some of the questions here are to get at what is a student’s interest in coming to OSU in particular. And we’re looking to see are they interested in our mission, because our program may be a little bit different and have different' foci than other School Psychology programs, and then also just a general interest in their working and- — experiences and working with children, adolescents and then in particular their experiences working with diverse youth, urban education or working in an urban setting types of things, so have they had some experiences that would relate to the types.of experiences that they will be getting in the program....

Despite her lack of background in dealing with children or with inner-city schools, Sjostrand was invited to interview with department officials in large part due to the stellar academic record she compiled as an undergraduate. Through her written application answers and through her responses to interview questions, however, Sjostrand failed to express an awareness of or an appreciation for the unique role the school viewed itself as filling.' To the contrary, the plaintiff admitted in her deposition that she applied to the Ohio State program only because “[i]t was the closest school in proximity to my home and my family and my church.” The university’s consideration of the disconnect between the school’s mission and Sjostrand’s goals, its consideration of the incompatibility of Sjostrand’s research interests with those of her potential faculty advisors, and its consideration of the plaintiffs lack of experience in the very matters the program emphasized all justified the decision not to admit Sjostrand to the doctoral program. The plaintiff and the majority can point to no facts or evidence that would allow a reasonable jury to conclude otherwise, at least not in the absence of speculation or conjecture.

IV.

Despite our claims to national enlightenment and exceptionalism, there is no doubt that our country still tolerates the existence of discrimination in its many forms. One need only open a newspaper, watch television “news,” or log on to any of innumerable websites to be bombarded with examples of race-based, gender-based, ethnicity-based, religion-based, or disability-based discrimination. In an effort to eradicate the effects of such malice, federal statutes like the ADA and the Rehabilitation Act stand as bulwarks against the ignorance and mean-spiritedness that spawn such destructive attitudes. That being said, however, the setback that Caitlin Sjostrand experienced when she applied to Ohio State University’s doctoral program in school psychology cannot be attributed to invidious discrimination. The majority concludes that “Sjostrand presented evidence creating a genuine issue as to whether” the school’s reasons for rejecting the plaintiffs application for admission were pretextual. Although I agree that Sjostrand satisfied her less-than-onerous burden of-establishing a prima facie case of disability discrimination, only rank speculation and conjecture would allow a reasonable jury to find that Ohio State harbored discriminatory animus toward Sjostrand based upon the fact that she had been diagnosed with Crohn’s disease. I therefore respectfully dissent from the majority’s determination that the judgment of the district court should be reversed.

. Sjostrand’s entire written response to question 10 on her application is as follows:

Over the years, I have learned that intense stress can trigger a Crohn’s episode. This realization has required that I develop various coping mechanisms. I have taken up several hobbies and have learned to entertain myself with various activities. By nature, I am an easygoing person and am able to "go with the flow” very easily; learning how to manage my disease effectively has simply made me more so.