Opposition Brief — Lei Ke, Petitioner v. Drexel University

19-6991

IN THE SUPREME COURT

OF THE UNITED STATES

LEI KE

(Petitioner)

Vv.

DREXEL UNIVERSITY

(Respondent)

On Petition for Writ of Certiorari

Respondents’ Appendix

Cipriani & Werner, P.C.

Lois Shenk, Esquire

Counsel of Record

450 Sentry Parkway

Suite 200

Blue Bell, PA 19422

610-567-0700

RESPONDENTS’ APPENDIX

SEPTEMBER 4, 2015 ORDER AND OPINION IN THE UNITED

STATES DISTRICT COURT FOR THE EASTERN DISTRICT

OF PENNSYLVANIA 0.00. .oc cece cc ceecceeeceeeeeees Resp. Supp. Appx. 1-83

MARCH 22, 2016 OPINION AND ORDER IN THE THIRD

CIRCUIT 2.0. ccccccceecceeecceeeceescceseceeseceuens Resp. Supp. Appx 84-93

APRIL 21, 2016 ORDER IN THE THIRD CIRCUIT. Resp. Supp. Appx. 94

DECEMBER 18, 2017 ORDER IN PHILADELPHIA COURT

OF COMMON PLEAS, JUNE TERM, 2013 NO.

OES 35) 6 ee Resp. Supp. Appx. 96

APRIL 13, 2018 OPINION OF JUDGE FOGLIETTA IN

PHILADELPHIA COURT OF COMMON PLEAS, JUNE TERM

20138 NO. 03506 00.0... eeccceecccescceeeeceeeseeees Resp. Supp. Appx. 97-114

AUGUST 20, 2019 ORDER IN THE SUPREME COURT

OF PENNSYLVANIA 0.0... cceccceecceeeeceeeeeees Resp. Supp. Appx. 115

. JULY 23, 2018 BRIEF OF APPELLEE IN THE SUPERIOR

COURT OF PENNSYLVANIA 95 EDA 2018 ... Resp. Supp. Appx. 116-160

. NOVEMBER 16, 2015 ANSWER AND NEW MATTER OF

DEFENDANT IN PHILADELPHIA COURT OF COMMON PLEAS

JUNE TERM, 2013 NO. 03506.........0...0000c. Resp. Supp. Appx 161-192

Case 2:11-cv-06708-JHS Document 683 Filed 09/04/15 Page 1 of 82

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LEI KE,

ain CIVIL ACTION

V. NO. 11-6708

DREXEL UNIVERSITY, et al.,

Defendant.

OPINION

Slomsky, J. September 4, 2015

TABLE OF CONTENTS

I. INTRODUCTION ...ccccsscscssscsesssssessessessesesscssseassneeseesesusnenssenseeseneoeeseerecsnseteeseesensneseceseenseneas l

Il. FACTUAL BACKGROUND ......cccccscssssseseecesceseneeeccesnanensensesnesenecsasaaseeaeeeeeseneneseeneaeeneneneaees 2

A. Plaintiff is Dismissed from DUCOM and then Conditionally Readmitted ............. 2

B. Plaintiff Takes the Step 1 Exam and Begins his Third Year Clerkship

Requirements ......sssecsssssssssssssesssecsscscscncscnsesneeseneseseosoesesenesessnensnsnssensugeanensenssensesnsonsees 4

C. Plaintiff Prepares to Retake the Step 1 Exam and to Take the Family Medicine

Shelf Exar sicsssssnssssccsnssrvassciverseveiistatarstsscuesanstostvancssesocsnesaneasaensceawerstinasencnaesenasenneess 7

D. Plaintiff Fails the Family Medicine Clerkship and Retakes the Step 1 Exam.......... 8

E. Plaintiff Fails again the Step 1 Exam, Fails the OB/GYN Shelf Exam, and is

Dismissed from DUCOM <sisssssstssccessnsssnscsnevaseesstsstsscescssessvsisctecstenntesnvectsavseeneesieass 12

F. Plaintiff Unsuccessfully Appeals his Dismissal ............:cccsccsceesseseseeeesseenenenseeenens 12

IIL. PROCEDURAL HISTORY ...0.....c:cscsccsssssssssssseecssesssssssssessnsceesessesensesesseseeeeseneeseseeaesasacaenes 16

IV. STANDARD OF REVIEW witssssossisscsvsovssinevansssvenrnoncossesossonsonnsesascutsonisentvorstoxessvsuavssenevecnsrse 17

V. ANAL YSIS biecs<<.cssassaoneamnomnnancoaneancriensrnnineietennscicesnaniaentioo thes asaaEsahint Sonnh senenemneannanseene 18

Resp. Supp. Appx. 1

Case 2:11-cv-06708-JHS Document 683 Filed 09/04/15 Page 2 of 82

A. Plaintiff Has Failed to Raise a Genuine Issue of Material Fact with Respect

to His Claims of Intentional Discrimination under 42 U.S.C. § 1981 and

Title VI of the Civil Rights Act, 42 U.S.C. § 2000d

1. Plaintiff has not presented direct evidence of discrimination.................

a. Comments contained in Plaintiff’s student records ............:000+

b. Comments made by Dr. Sahar .........ccsccsssseeseneseneeseteneeeeeneensees

Dn Plaintiff has not presented circumstantial evidence of discrimination

a. Plaintiff has failed to establish that he was qualified to

continue in his pursuit of education

b. Plaintiff has failed to establish that he was treated

differently from similarly situated students

ii.

iii.

iv.

Vi.

Vii.

Resp. Supp. Appx. 2

Spreadsheets with Third Year Caucasian and

African-American students who failed clerkships and

Were NOt DISMISSEM .............cscceseeeeeeseesseceesteceeseeessesseseneees

Spreadsheets with Caucasian and African-American

students who violated conditional letters and were not

GISMISSE ......ccsesssecssesssoussscseversnsaasvesanccanrcesecewscnadeawevscscsaess

Spreadsheets with Caucasian and African-American

students who failed courses in the first and second

year and who did not receive conditional letters ............

Spreadsheets with students who were given more than

18 months or more than three attempts to take the

Step 1 Exam .........csssssssnpeeomnensoeessvensgenapassnegassesseteseveesise

Spreadsheets with African-American students who

failed multiple courses in the first or second year

and were not dismissed ...........cccccsssccececeesesssseeeeeesseeseenee

Spreadsheets with Caucasian students who failed

multiple courses in the first or second year and

Were not GisMiSSed ..........c.cccecceesssessssssscssssssereeeeeeneeeeseeeeees

Statistical evidence with respect to students dismissed

from DUCOM from 2007-2011 ..........sccccsssssssssssrsersennnenee

POUePeTP PITT Terrier rrr rrrri srry

Case 2:11-cv-06708-JHS Document 683 Filed 09/04/15 Page 3 of 82

c. Plaintiff has not shown that Defendants’ legitimate nondiscriminatory reason for his dismissal was pretextual ................ 54

B. Plaintiff Has Failed to Establish a Claim for Racially Motivated Breach of

Contract Under 42 U.S.C. § 1981... eccssssesscessessesessessessssseaseesnaseaseanessnsnsasesnasecens 58

C. Plaintiff Has Failed to Raise a Genuine Issue of Material Fact Regarding

His Claim of a Hostile Educational Environment.............scsssccscsceneeenessnssesetensenes 60

1. Comments made by Dr. Sahat .........cccccssesescesesesseesesseseeesessesssnaennerasssenscneens 61

Dn Comments made by Dr. Parrish .......:.sccsesssseeeseseeeeseneenetseaseasssenseanscnecesseres 63

oF Other COMMENES iisciccccssccccocssscisvesssescsatscesssersossssvicessensserssesesecsesesenoseneseseoes 67

D. Plaintiff Has Failed to Raise a Genuine Issue of Material Fact that He Engaged

in Protected Activity in Order to Sustain a Claim of Retaliation Under

42 U.S.C. § 1981 and Title VI, 42 U.S.C. § 20000 «0... .sesessssesesserssesessenseeneensersnens 71

E. Plaintiff Has Failed to Raise a Genuine Issue of Material Fact that

Defendants Conspired Against Him in Violation of 42 U.S.C. § 1985(3) .......+.++ 77

VL CONCLUSION . ..-cscovennsssniicsscth svausstuscsaicstinaseuvesestenevetaksiietttsversetaiscnvsssstsatennnessnesteorscaussesouss 79

Resp. Supp. Appx. 3

Case 2:11-cv-06708-JHS Document 683 Filed 09/04/15 Page 4 of 82

I. INTRODUCTION

Before the Court is pro se Plaintiff Lei Ke’s Motion for Summary Judgment (Doc. No.

632), and the Cross-Motion for Summary Judgment of Defendants Drexel University, Dr.

Anthony Sahar, Dr. Samuel Parrish, Dr. Amy Fuchs, Dr. Jennifer Hamilton, and Dr. Richard

Homan (Doc. No. 634). Plaintiff was a student at Drexel University College of Medicine

(“DUCOM”) from the fall of 2007 to the spring of 2011 when he was dismissed because of his

poor academic performance. Plaintiff disputes this reason for dismissal. He contends that it was

due to discrimination on the basis of his Chinese race and national origin and in retaliation for an

incident that occurred during his third year Family Medicine clerkship.’ He therefore filed the

instant lawsuit.

Plaintiff initiated this action on October 26, 2011, when he filed an application to proceed

in forma pauperis. (Doc. No. 1.) The application was granted (Doc. No. 3) and after a period of

motion practice, on May 22, 2012, the Second Amended Complaint (“SAC”), in which

Plaintiff's claims are asserted, was filed (Doc. No. 29). The allegations in the SAC (Doc. No.

29) that remain are as follows: (1) Count I—Intentional Discrimination in violation of 42 U.S.C.

§ 1981 against all Defendants; (2) Count II—Willful Retaliation in violation of 42 U.S.C. § 1981

against all Defendants; (3) Count III[—Hostile Educational Environment in violation of 42

U.S.C. § 1981 against Dr. Sahar, Dr. Parrish, and Drexel University; (4) Count [V—Intentional

Discrimination in violation of Title VI of the Civil Rights Act, 42 U.S.C. § 2000d, against Drexel

University; (5) Count V—Willful Retaliation in violation of Title VI of the Civil Rights Act, 42

' A medical school clerkship is an internship in which the student obtains hands-on experience

in a clinical environment. At the end of the clinical rotation, the student takes the National

Board of Medical Examiners (“NBME”) examination, also known as a “shelf exam,” that

covers the subject matter of the clerkship. (Doc. No. 29 at n.1.)

Resp. Supp. Appx. 4

Case 2:11-cv-06708-JHS Document 683 Filed 09/04/15 Page 5 of 82

U.S.C. § 2000d against Drexel University; (6) Count VI—Conspiracy in violation of 42

U.S.C. § 1985 against Sahar, Parrish, and Hamilton; and (7) Count VIJ—Racially Motivated

Breach of Contract in violation of 42 U.S.C. § 1981(b) against all Defendants.”

On February 16, 2015, Plaintiff filed a Motion for Summary Judgment.? (Doc No. 632.)

On February 17, 2015, Defendants filed a Cross-Motion for Summary Judgment. (Doc. No.

632.) Responses and Replies thereafter were filed by the parties. (Doc. Nos. 640, 647, 652,

653.) After considering the Motions for Summary Judgment and for reasons that follow, the

Court will grant Defendants’ Cross-Motion for Summary Judgment and deny Plaintiff's Motion.

Il. FACTUAL BACKGROUND

A. Plaintiff is Dismissed from DUCOM and then Conditionally Readmitted

In the fall of 2007, Plaintiff began medical school at Drexel University College of

Medicine (““DUCOM”). Plaintiff initially had difficulty with his studies, receiving a grade of

Marginal Unsatisfactory in Behavioral Science and a grade of Unsatisfactory’ in Immunology.

2 This cause of action was added after the Court granted Plaintiff's Third Motion to Amend the

Complaint in part. (Doc. No. 127.)

The docket in this case contains 682 entries. They were entered during the three years and ten

months that the case was open. During this period, a considerable amount of case

management was required as a result of the numerous filings.

At DUCOM, transcript grades are listed as follows:

Honors (H), Highly Satisfactory (HS), Satisfactory (S), and Unsatisfactory (U).

An interim, unofficial grade of Marginal Unsatisfactory (MU) indicates a

course in which remedial work (repeat examination, other supplemental

laboratory or clinical work) is required. If remedial work is successful, the

grade is recorded as Satisfactory and may be no higher than Satisfactory. If

remedial work is not successful, the transcript grade is recorded as

Unsatisfactory, and the course . . . must be repeated.

(Doc. No. 633, Ex. 7.)

Resp. Supp. Appx. 5

Case 2:11-cv-06708-JHS Document 683 Filed 09/04/15 Page 6 of 82

(Doc. No. 634-1 at 3.) During his second academic year in 2008 and 2009, Plaintiff received a

grade of Unsatisfactory in four courses, including: Introduction to Clinical Medicine, Medical

Microbiology, Pathology and Laboratory Medicine, and Medical Pharmacology. (Id.) As a

result, the Student Promotions Committee” voted to dismiss Plaintiff from DUCOM on May 11,

2009.° (Doc. No. 29-4 at 45.)

Plaintiff appealed the decision of the Promotions Committee to Dr. Richard Homan, the

Dean of DUCOM. On July 21, 2009, Dean Homan reversed the decision of the Promotions

Committee and readmitted Plaintiff to DUCOM on the following conditions:

1. You will retake all courses in which your grade was Unsatisfactory and

Marginal Unsatisfactory.

Dn Any grade below Satisfactory will be considered grounds for dismissal

from the College of Medicine.

> Student Promotions Committees at DUCOM are separated into the Preclinical Student

Promotions Committee for students in the first two years of the curriculum, and the Clinical

Student Promotions Committee for students in the final two years of the curriculum. “The

Student Promotions Committees are standing committees of the Faculty. They make

decisions about student progress and advise the Dean on matters related to student academic

and professional progress.” In addition to commenting on a student’s academic deficiencies,

the Committee also addresses “breaches of professional and ethical behavior.” (Doc. No. 633,

Ex. 16-17.)

6 The DUCOM student handbook states that:

The year-appropriate Student Promotions Committee reviews the entire record

of a student with one or more grades of Marginal Unsatisfactory or

Unsatisfactory in order to determine if that student is demonstrating a level of

academic performance sufficient to remain in medical school; and if so, to

review individual departmental recommendations, especially when a student

needs remediation in multiple courses.

(Doc. No. 633, Ex. 18.) Here, because Plaintiff had received a grade of Marginal

Unsatisfactory and Unsatisfactory in his first year, and then four grades of Unsatisfactory in

his second year, the Promotions Committee was bound to “review[] the entire record of

[Plaintiff] . . . in order to determine if [Plaintiff] [was] demonstrating a level of academic

performance sufficient to remain in medical school.” (Id.)

Resp. Supp. Appx. 6

Case 2:11-cv-06708-JHS Document 683 Filed 09/04/15 Page 7 of 82

3. You must meet with Dr. Janet Moore prior to the beginning of classes,

August 11, 2009. You will work with Dr. Moore and focus on test taking

skills, time management, and study skills.

4. You will meet with a designated faculty advisor at least monthly

throughout the remainder of time in medical school.

5. The receipt of any grade lower than Satisfactory during your clinical

training will be considered as grounds for dismissal from the College of

Medicine.

I strongly encourage you to utilize all personal and academic support

services in the College of Medicine.

(Doc. No. 634, Ex. F.)

Upon Plaintiff's retum to DUCOM during the academic years 2009 and 2010, he was

required to retake the four second-year courses he had failed. Plaintiff, in violation of the terms

of his re-enrollment, received a grade of Marginal Unsatisfactory in Medical Microbiology.

(Doc. No. 634, Ex. B.) Nevertheless, he was not dismissed from DUCOM but permitted to

remediate his grade by sitting for the National Board of Medical Examiners (“NBME”)

Microbiology Subject Exam. (Jd.) After passing the exam, his grade in Microbiology was

changed to Satisfactory. (Id.)

B. Plaintiff Takes the Step 1 Exam and Begins his Third Year Clerkship

Requirements

After completing his second year in May 2010,’ Plaintiff deferred taking the required

q

Step 1 United States Medical Licensing Examination (“USMLE”) until September 27, 2010.

7 DUCOM’s medical school curriculum is designed as a four-year program. The first two years

of school focus on medical education including basic science and clinical medicine. After

completing coursework in the second year, students must successfully pass a “Step 1” exam

administered by the United States Medical Licensure Examination (“(USMLE”). Students

cannot progress to the third year curriculum until they have passed Step 1, except when they

are awaiting results when their clerkships begin. Students must pass Step 1 within 18 months

after successfully completing their second year curriculum, or they may be dismissed from

DUCOM. (Doc. No. 633, Ex. 20.)

In the third year, DUCOM students take required clinical clerkship rotations in Medicine,

4

Resp. Supp. Appx. 7

Case 2:11-cv-06708-JHS Document 683 Filed 09/04/15 Page 8 of 82

(Doc. No. 29 § 13; Doc. No. 634, Ex. I.) The next day, September 28, 2010, before he received

the results of the Step 1 exam, Plaintiff began a required Family Medicine rotation at AM

Sahar—a private family medical practice owned by Defendant Dr. Anthony Sahar. (Doc. No. 29

q§| 13, 14.) AM Sahar was affiliated with the Monmouth Medical Center in Long Branch, New

Jersey, which is a regional medical campus of DUCOM. (Id. § 14.)

Plaintiff's internship at AM Sahar lasted six weeks. (Doc. No. 29 § 25.) During Dr.

Sahar’s first interaction with Plaintiff, Dr. Sahar asked Plaintiff “where [he] came from.” When

Plaintiff responded that he was from Canada, Dr. Sahar said “that [response] was not good

enough because [Plaintiff] was not a white Canadian and kept asking where [Plaintiff] came

from.” (Id. 15.) Plaintiff informed Dr. Sahar that he was born in China and immigrated to

Canada when he was a child. (Id.) According to Plaintiff, Dr. Sahar thereafter became arrogant

and condescending with Plaintiff. (Id.)

Because Dr. Sahar’s brother had died, he left the United States after the first week of

Plaintiff's clerkship. Dr. Sahar was not present at AM Sahar for the next four weeks of

Plaintiffs internship, from October 6, 2010 to October 28, 2010. (1d. §] 16; Doc. No. 29 at Ex.

6.) During this hiatus, Plaintiff and another student were supervised by Dr. John Dalton. (Id.

q 17.) On October 25, 2010, Dr. Dalton completed a mid-internship evaluation of Plaintiff. In

relevant part, Dr. Dalton gave Ke four out of five points on “Medical Knowledge,” four out of

five points on “Interpersonal/ Communication Skills,” and five out of five points on

“Professionalism.” (Id.)

Surgery, Pediatrics, Family Medicine, Psychiatry, and Obstetrics and Gynecology. By

October 31 of their fourth year, DUCOM students must successfully pass the USMLE “Step

2” exam in clinical skills (“CS”), and clinical knowledge (“CK”). In the fourth year, students

take both required courses and electives. (Doc. No. 633, Exs. 7-22.)

Resp. Supp. Appx. 8

Case 2:11-cv-06708-JHS Document 683 Filed 09/04/15 Page 9 of 82

During Plaintiffs final week of the internship, Dr. Sahar had returned. Plaintiff attended

to a prostate cancer survivor. Initially, he was alone with the patient. (Doc. No. 29 419.) The

patient spoke to Plaintiff about the expense and frequency of injections he was receiving. (Id.)

Plaintiff asked the patient if he understood how his medications worked, and the patient

responded that he did not. (Id.) Soon thereafter, Dr. Sahar came into the room. (Id. { 20.)

Plaintiff, who had “been taught . . . not just to ask the question but to include a pertinent fact to

demonstrate knowledge,” asked Dr. Sahar the following in front of the patient:

I remember that Leuprolide increases GnRH and enhances testosterone secretion.

Why would a prostate cancer survivor need it? Shouldn’t he be on something that

suppresses testosterone?

(Doc. No. 29-4 at 41.) According to Plaintiff, Dr. Sahar appeared “shocked” that Plaintiff had

forgotten that the drug decreased GnRH levels if taken continuously, and that Plaintiff had asked

the question in front of a patient. (Id. | 21; Doc. No. 29, Ex. 9.) Plaintiff was under the

impression that it was appropriate to ask Dr. Sahar this question in the presence of the patient

pursuant to the Drexel University Code of Conduct. (Doc. No. 29 {22 n.2.)

Later, when Plaintiff and Dr. Sahar were attending to a different patient, Dr. Sahar asked

Plaintiff what test Plaintiff should use to test for renal insufficiency. Plaintiff answered the

question incorrectly. (Doc. No. 29 § 23.) At the end of the day, Plaintiff apologized to Dr. Sahar

for what had occurred in front of the patient as well as for incorrectly answering his question

later in the day, explaining that he was having an “off-day.” (Id. 24.) Dr. Sahar said he would

give Plaintiff the benefit of the doubt, and acknowledged it had been an “off-day” for Plaintiff.

On Plaintiff's last day, Dr. Sahar was out of the office. Dr. Dalton gave Plaintiff an oral

evaluation. (Doc. No. 29 at § 25.) He told Plaintiff that he had improved during the internship

and “had done a good job.” (Id. § 26.) However, Dr. Dalton emphasized that Plaintiff should

Resp. Supp. Appx. 9

Case 2:11-cv-06708-JHS Document 683 Filed 09/04/15 Page 10 of 82

not “ask many questions in the presence of a patient.” (Id.) Dr. Dalton informed Plaintiff that

Dr. Sahar would complete Plaintiff's final written evaluation. (Id.)

C. Plaintiff Prepares to Retake the Step 1 Exam and to Take the Family

Medicine Shelf Exam

Meanwhile, four weeks into his Family Medicine internship, Plaintiff learned that he had

failed the Step 1 exam. (Doc. No. 29, Ex. 14a at 1.) Dr. Amy Fuchs, Associate Dean of Student

Affairs, sent Plaintiff an email on October 20, 2010 noting:

As you probably know, you did not pass the USMLE Step 1 Exam. As per school

policy, you will be allowed to complete your current 6-week Family Medicine

Clerkship. However, after that you will be pulled from clinical rotations to study

for and retake Step 1. You cannot resume clinical rotations until you have taken

the exam again. While we spoke last week about various possibilities, now that

we have your score, J would like to talk with [you] in more detail about your

schedule and a plan for study.

(Doc. No. 634, Ex. K.) When Plaintiff and Dr. Fuchs did speak, she advised Plaintiff to retake

the Step 1 exam within six weeks. Plaintiff had only failed the Step 1 exam by two points.

While Plaintiff could have taken more time to take the Step 1 exam since the student, not

DUCOM, schedules the examination, Dr. Fuchs believed that he would need only six weeks to

improve his score in order to pass. (Doc. No. 29, Ex. 14a at 7; Doc. No. 29, Ex. 15 at 2.)

Plaintiff ultimately scheduled to retake the Step 1 exam on December 27, 2010, which would

afford him over two months to study. Ultimately, Plaintiff was unable to take the exam on

December 27, 2010 because of a snowstorm. (Doc. No. 29, Ex. 14a at 2; Doc No. 29, Ex. 15 at

1.)

While studying to retake the Step 1 exam, Plaintiff was also preparing for the NBME

shelf exam in Family Medicine.® In an email to Dr. Fuchs on November 1, 2010, Plaintiff wrote

8 The NBME shelf examination covers a specific subject matter and is the final examination in

a clinical rotation. If a student does not take the shelf exam during the final exam period, the

7

Resp. Supp. Appx. 10

Case 2:11-cv-06708-JHS Document 683 Filed 09/04/15 Page 11 of 82

the following:

After substantial thought, J am seriously considering not taking the Family

Medicine shelf exam this Friday to focus more on Step 1. If I do this, will this

missed exam be considered a failed shelf? I understand that students cannot fail a

shelf exam twice and that after failing a shelf, they can only receive a satisfactory

grade. Can you elaborate on the details? My letter from Dean Homan stated that

I cannot fail a course so that does concern me.

(Doc. No. 634, Ex. K.) In light of Plaintiff's concerns about Step 1, Dr. Fuchs permitted Plaintiff

to delay taking the Family Medicine shelf exam until the make-up period over winter break.

(Id.) Plaintiff took the Family Medicine shelf exam on December 29, 2010. (Id., Ex. L.)

D. Plaintiff Fails the Family Medicine Clerkship and Retakes the Step 1 Exam

On January 3, 2011, Dr. Jennifer Hamilton, the director of the Family Medicine clerkship

at DUCOM, informed Plaintiff that he had failed both the clinical rotation at AM Sahar and the

Family Medicine shelf exam. (Doc. No. 29 § 29.) Dr. Sahar had written the final evaluation in

which he graded Plaintiff as “Unsatisfactory” in Family Medicine. The failures were particularly

troubling to Plaintiff because of the terms of his readmission after he had failed courses during

his second year. Plaintiff believed that Dr. Sahar had failed him “just because he had asked him

a question in front of a patient.” (id. 739.) Dr. Hamilton advised Plaintiff on January 4, 2011

that he would have to retake the Family Medicine clerkship pursuant to the DUCOM student

manual. (Id.) Plaintiff disputed the failure, citing his positive mid-block oral evaluations made

by Dr. Dalton. (Id. 9 31.) On January 6, 2011, Hamilton advised Plaintiff that he could appeal

the grade. (Id. § 40; Doc. 29-4, Ex. 6.)

While in the process of reviewing Plaintiff's appeal, Dr. Hamilton spoke with Dr. Sahar

and Dr. Dalton. Dr. Sahar explained to Dr. Hamilton that Plaintiff had performed well during the

student may take the shelf exam during the make-up period over winter break or immediately

before beginning the fourth school year. (Doc. No. 634, Ex. D at 6.)

Resp. Supp. Appx. 11

Case 2:11-cv-06708-JHS Document 683 Filed 09/04/15 Page 12 of 82

beginning of his internship, which is why he had received a positive mid-block evaluation. (Id.

at 7 42.) By the end of the clerkship, however, Dr. Sahar rated Plaintiff's work as less than

satisfactory in “Medical Knowledge,” “Professionalism,” and “Interpersonal/ Communication

Skills.” (Id. 941.) Additionally, Dr. Sahar noted in his feedback that:

[Ke] had issues with professionalism and interpersonal skills. In one patient

encounter, he took exception to a treatment strategy in front of a patient, rather

than discussing his concerns outside of the patient room. This incident of

questioning treatment in the presence of patient was unacceptable. He also had

poor interactions with office staff, often aloof and non-interactive.

(Doc. No. 29-4 at 14.)’

Plaintiff appealed the Unsatisfactory grade to Hamilton. With respect to Dr. Sahar’s

evaluation, Hamilton agreed to modify the Professionalism score from a 1 out of 5, to a 2 out of

5. (Doc. No. 29-4, Ex. 6.) Hamilton was unwilling, however, to modify the interpersonal and

communication skills and medical knowledge scores, noting, “[a]side from concerns of any

challenge to the instructor, what would the patient think of the suggestion that the treatment he

was receiving would actually worsen his disease.” (Id.) Moreover, Hamilton stressed that had

Plaintiff passed the shelf exam for Family Medicine, she would consider modifying his grade

from Unsatisfactory to Marginal Unsatisfactory, but his failure on the shelf exam, coupled with

the “less-than-satisfactory” clinical skills, resulted in an overall grade of Unsatisfactory. (Id.)

Hamilton informed Plaintiff that if he wished to appeal her findings, he would have to contact

Dr. Eugene Hong, Chairman of the Family Medicine Department of DUCOM. (ld.)

° Dr. Sahar was apparently so distressed by Plaintiff's performance that he called Dr. Parrish,

the Dean of Student Affairs at DUCOM, to speak about Plaintiffs future as a doctor. Dr.

Parrish later told Plaintiff that Dr. Sahar spoke with him for nearly two hours, saying, “this

student should not be a doctor. He does not belong in medicine. He was inappropriate to

patients. He was inappropriate in my presence, and he upset people.” (Doc. No. 29, Ex. 14a

at 1.)

Resp. Supp. Appx. 12

Case 2:11-cv-06708-JHS Document 683 Filed 09/04/15 Page 13 of 82

On February 2, 2011, Dr. Hong declined to amend Plaintiff's grade, and advised Plaintiff

that if he wished to appeal his decision, Plaintiff could appeal to Dr. Barbara Schindler, the Vice

Dean for Academic Affairs at DUCOM. (Id. 4 45.) On February 8, 2011, Plaintiff emailed an

appeal to Schindler. Plaintiff again criticized what he considered the “two harshest comments”’”

on Dr. Sahar’s final evaluation as being “related to that incident.” (Id. § 40.) Furthermore,

Plaintiff related that he “performed poorly on the last day he was with [Sahar] before the end of

the rotation[,] leaving [Sahar] with a bad impression.” (Id. { 41.) Plaintiff did not seek a

Satisfactory grade in the appeal; rather, he sought a Marginal Unsatisfactory grade so that he

could retake the shelf exam in Family Medicine. (Id.)

While the above described events were occurring, Plaintiff was also studying to retake

the Step 1 exam that he had failed that fall and was unable to retake in December 2011. Plaintiff

admits that appealing his grade in Family Medicine “tapped his energy and time [that] he ought

to have devoted” to preparing for the exam. (Doc. No. 29 § 44.) It was necessary that Plaintiff

retake the exam quickly because he was unable to begin another clerkship until he retook this

exam. Dr. Fuchs had noted this restriction in her email to Plaintiff on October 20, 2010. On

February 10, 2011, Plaintiff took the Step 1 exam once again. (Id.)

On February 11, 2011, the day after Plaintiff retook the Step 1 exam, Plaintiff met with

Dr. Schindler. (Doc. No. 29 46.) Plaintiff recounted to Schindler that he believed Dr. Sahar’s

failing grade was retaliatory for asking a question. (Id.) According to Plaintiff, Schindler did

not comment on the alleged retaliation, but only said that she agreed with the other professors

10 In the letter, Plaintiff does not specifically state which of Sahar’s comments were the two

harshest. (Doc. No. 29-4 at 40.)

10

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who had reviewed Plaintiff's case and refused to alter his grade. (Id.) Schindler advised

Plaintiff to retake the Family Medicine clerkship. (Id.)

Later in the day on February 11, 2011, the Clinical Promotions Committee met to review

Plaintiff's grade of Unsatisfactory in the Family Medicine clerkship in order to determine

whether it was grounds for dismissal from DUCOM. In a letter dated February 14, 2011, the

Clinical Promotions Committee made the following decision with respect to Plaintiff's

Unsatisfactory grade in Family Medicine:

The Clinical Promotions Committee met Friday to discuss your Unsatisfactory

grade in the Family Medicine Clerkship. As you know, when readmitted to the

College of Medicine in July of 2009, one of the conditions stipulated by Dean

Homan was the following: “The receipt of any grade lower than Satisfactory

during your clinical training will be considered as grounds for dismissal from the

College of Medicine.” The Committee reviewed the mid-rotation feedback, your

final evaluation, and the decisions made to uphold the Unsatisfactory grade in

your appeals to both Drs. Hong and Schindler. Although previous

communications from the College provided clear warning that an additional

failing grade could lead to your dismissal, the Committee decided that issues

regarding the delivery of your mid-rotation feedback warranted leniency.

The Committee has made the following decisions:

You are allowed to remain enrolled in the College of Medicine.

You will do the remainder of your Clerkships in the Philadelphia area. |!

You are required to repeat the 6-week Family Medicine Clerkship.

The receipt of any additional grade of less than Satisfactory (including

Unsatisfactory or Marginal Unsatisfactory) will be considered grounds for

dismissal from the College of Medicine. !

eS

'l With respect to the condition that Plaintiff completes his clerkships in the Philadelphia area, it

is the practice of DUCOM to “bring back” students to Philadelphia who have had clinical

failures in order to provide them with better supervision and support. (Doc. No. 29, Ex. 14a at

2.) During discovery, Defendants provided Plaintiff with a list of seven other students who

were required to return to Philadelphia to complete their clerkships due to shelf exam failures

and/or professionalism issues. (Doc. No. 457.)

Dr. Fuchs called Plaintiff on the afternoon of February 11, 2011 to let Plaintiff know about the

condition that he complete his rotations in Philadelphia. Plaintiff was scheduled to begin a

clinical rotation on Monday, February 14, 2011, so Dr. Fuchs wanted to ensure Plaintiff

arrived at the correct clinical site.

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(Doc. No. 634, Ex. M.)

E. Plaintiff Fails again the Step 1 Exam, Fails the OB/GYN Shelf Exam, and is

Dismissed from DUCOM

On February 14, 2011, Plaintiff began an OB/GYN"® clinical rotation at Hahnemann

Hospital in Philadelphia. At some point Plaintiff learned that he had failed his second attempt at

the Step 1 exam. He was permitted to take the Step 1 exam a third time. Although Plaintiff was

advised not to study at the same time for both the OB/GYN shelf exam and his third and final

attempt at the Step 1 exam, he apparently did so and scheduled the Step 1 exam to be retaken on

May 6, 2011. (Doc. No. 29-4, Ex. 13 at 1; Doc. No. 29-4, Ex. 14A at 1.)

Ultimately, Plaintiff passed the clinical portion of his OB/GYN clerkship, but failed the

NBME shelf exam in OB/GYN. (Doc. No. 634-1 at 5.) The failure of the NBME shelf exam

resulted in a final grade of Marginal Unsatisfactory in the OB/GYN clerkship. (Doc. No. 634,

Ex. B.) As noted in the letter of February 14, 2011 from the Clinical Promotions Committee,

any grade below Satisfactory, including a Marginal Unsatisfactory or Unsatisfactory grade,

would be grounds for dismissal. (Doc. No. 634, Ex. M.) Accordingly, on April 11, 2011, the

Clinical Promotions Committee voted to dismiss Plaintiff from DUCOM because he had

received a grade of less than Satisfactory. (Doc. No. 29 { 61; Doc. No. 634, Ex. O.)

F. Plaintiff Unsuccessfully Appeals his Dismissal

Plaintiff next began the process of appealing his dismissal, which included an opportunity

to appear before the Clinical Promotions Committee. (Doc. No. 29-4, Ex. 14.) Dr. Fuchs and

Dr. Samuel Parrish, Dean of Student Affairs at DUCOM, assisted Plaintiff with his appeal.

(Doc. No. 29 at § 62-66.) The three met on April 26, 2011 and during the meeting, Plaintiff

13 OB/GYN is an acronym for Obstetrics and Gynecology.

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explained why he should be readmitted. (Id. at 1.) Specifically, Plaintiff blamed the Promotions

Committee’s decision to transfer his OB/GYN clinical rotation from the Monmouth Medical

Center in New Jersey to the Hahnemann Hospital in Philadelphia as a reason for his OB/GYN

failure. Drs. Parrish and Fuchs encouraged Plaintiff instead to take personal responsibility for

his failures, rather than blame his shortcomings on external factors. Plaintiff took their advice

and wrote a letter to the Promotions Committee acknowledging his failings. (Doc. No. 29 { 64.)

On May 12, 2011, the three met again after Drs. Fuchs and Parrish reviewed Plaintiff's

letter to the Promotions Committee. During the meeting, Dr. Parrish discussed with Plaintiff his

trouble interacting with others and how it could affect Plaintiff's success in the medical

profession. (Doc. No. 29-4, Ex. 14a at 5.) Dr. Parrish spoke to Plaintiff about finding Plaintiff

“truly odd” at their first meeting and advised him when appearing before the Committee not to

appear disinterested. (Id.) Both Doctors praised Plaintiff for accepting responsibility for his

academic failures in the letter addressed to the Promotions Committee. (Id.) In the letter,

Plaintiff stated the following:

This committee is made of successful professionals who are extremely smart and

knowledgeable. You probably wonder why I keep failing. The truth is that I have

worked very hard from the day I entered this medical college four years ago, but

obviously I am not as smart as many other students. When I repeated my second

year, I lost confidence in my abilities and felt isolated and separated from my

original class that continued to move forward. I was devastated and humiliated

and became an outcast. I had never felt so bad in all my life.

(Doc. No. 29, Ex. 15.) On May 13, 2011, Plaintiff met with the Promotions Committee. The

same day, the Committee voted not to reinstate him. Plaintiff was advised that he could appeal

the decision to Dean Homan. (Doc. No. 29 { 67.)

On May 16, 2011, Plaintiff again met with Drs. Parrish and Fuchs before meeting with

Dean Homan and asked them to review the letter he intended to send to Dean Homan. (Id. {J 67,

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68.) During this meeting, the doctors once again advised Plaintiff that his most persuasive

argument for reinstatement was that he had taken on too many things at once. On May 26, 2011,

Plaintiff again met with Dr. Parrish and Dr. Fuchs before meeting with Dean Homan. In view of

what Dr. Parrish characterized as a “persistent pattern of academic failure,” the doctors told

Plaintiff again that his best chance for reinstatement would be to admit that the failures were his

own. (Doc. No. 29-4, Ex. 14a at 13.) Plaintiff did not heed the doctors’ advice, and in the letter

to Dean Homan stated, “I humbly request you to reinstate me because I deserve to be reinstated.

The truth was that it was the college that let me handle so many things beyond my capability.”

(id., Ex. 17.)

Plaintiff eventually met with Dean Homan. The Dean wrote to Plaintiff on June 27, 2011

that he had decided to uphold the dismissal of Plaintiff from DUCOM. (Doc. No. 29-4, Ex. 19.)

In the letter, Dean Homan also noted the following:

In considering your appeal, I also reviewed your concerns that the Academic

Policies and Academic Progress Policies in the Student Handbook were not

properly followed and applied to you. My July 21, 2009 letter reinstating you

after your first dismissal by the Preclinical Promotions Committee clearly stated

that any grade below Satisfactory will be considered grounds for dismissal. I note

that you received a grade of Unsatisfactory in your Family Medicine clerkship

and a Marginal Unsatisfactory in your Obstetrics and Gynecology clerkship.

Therefore, I find that the College’s policies and process were properly followed

and applied.

(Id.) At that point, Plaintiff had exhausted his appeals within DUCOM. (Id.) In addition,

because he was no longer enrolled at a medical school, the NBME cancelled the Step 1 exam that

Plaintiff was scheduled to retake in July 2011. (Doc. No. 29-5, Ex. 20.)

On June 22 and June 30, 2011, Plaintiff's parents sent letters to John Fry, the President

of Drexel University, and to Dean Homan petitioning to have their son readmitted to DUCOM.

(Doc. No. 29 at § 73.) President Fry and Dean Homan did not respond. (id.) On July 4 2011,

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Plaintiff emailed President Fry and Dean Homan requesting that his Family Medicine clinical

grade be amended, and in the event that the grade was not amended, Plaintiff requested a formal

hearing pursuant to the Family Educational Rights Privacy Act (“FERPA”). Drexel’s FERPA

policy grants students the right to a formal hearing when the University refuses to amend a grade

that the student considers to be “inaccurate, misleading, or otherwise in violation of his/her

privacy or other rights.” (Doc. No. 29-4, Ex. 21.) The policy does not, however, permit a

student to challenge the merits of an otherwise accurately recorded grade. (Id.) President Fry,

who was out of the country on July 4, 2011, responded to Plaintiff on July 5, 2011, and advised

him that another Dean, David Ruth, would be in touch with a response to Plaintiff’s email. (Id.)

Instead, on July 7, 2011, Plaintiff received an email from Dean Homan who informed Plaintiff

that he was reviewing his FERPA request. Moreover, on July 7, 2011, Plaintiff received a

response from Dean Ruth confirming that Dean Homan would respond to the request. (Id.)

On July 19, 2011, Dean Homan emailed Plaintiff and told him that DUCOM would not

amend his Family Medicine grade, and that Plaintiff had a right to a formal hearing. (Id.) On

August 30, 2011, before the hearing took place, the Registrar’s office cancelled the hearing,

noting that his request to amend his Family Medicine grade was not a matter falling under

FERPA’s purview because Plaintiff was attempting to challenge the merits of the Unsatisfactory

Family Medicine grade. In an email to Plaintiff, the Registrar wrote:

I have considered all of the information you have provided to me and have

determined that this is not a matter for which a hearing is available under the

Drexel University FERPA Policy. This is because you are attempting to use the

FERPA amendment process to challenge a grade and a clinical evaluation.

(Doc. No. 29-5 at 31.) The receipt of this email effectively ended Plaintiff's attempt at

reinstatement under the appeal procedures at DUCOM and Drexel University.

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Ill. PROCEDURAL HISTORY

On September 13, 2011, Plaintiff filed a complaint with the Pennsylvania Human

Relations Commission to be reinstated at DUCOM. (Doc. No. 29 § 76.) On September 19,

2011, Plaintiff filed a complaint with the Department of Education, Office of Civil Rights, also

seeking reinstatement.

On November 18, 2011, Plaintiff filed his first Complaint (Doc. No. 4) with this Court

because “[Plaintiff] realized that the agencies could not timely help him or could never help

him.” (Id.) On December 5, 2011, Plaintiff filed his First Amended Complaint. (Doc. No. 7.)

On January 25, 2012, Defendants filed a Motion to Dismiss. (Doc. No. 12.) On May 17, 2012,

Plaintiff was granted leave to file a Second Amended Complaint. (Doc. No. 29.) On June 12,

2012, Defendants filed a Motion to Partially Dismiss Plaintiff's Second Amended Complaint.

(Doc. No. 31.) On March 13, 2012, the Court granted Defendants’ Motion to Partially Dismiss

the Second Amended Complaint. (Doc. No. 69.) In addition, on July 12, 2013, the Court

granted in part Plaintiff's Third Motion to Amend his Complaint. (Doc. No. 127.)

Accordingly, before the Court are the remaining claims asserted in Plaintiffs Second

Amended Complaint and an added claim which was included in Plaintiffs Third Motion to

Amend his Complaint. As noted previously, these claims are: (1) Count I—Intentional

Discrimination in violation of 42 U.S.C. § 1981 against all Defendants; (2) Count II—Willful

Retaliation in violation of 42 U.S.C. § 1981 against all Defendants; (3) Count III—Hostile

Educational Environment in violation of 42 U.S.C. § 1981 against Sahar, Parrish, and Drexel

University; (4) Count [V—Intentional Discrimination in violation of Title VI of the Civil Rights

Act, 42 U.S.C. § 2000d, against Drexel University; (5) Count V—Willful Retaliation in violation

of Title VI of the Civil Rights Act, 42 U.S.C. § 2000d against Drexel University; (6) Count VI—

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Conspiracy in violation of 42 U.S.C. § 1985 against Sahar, Parrish, and Hamilton; and (7) Count

ViIl—Racially Motivated Breach of Contract in violation of 42 U.S.C. § 1981(b) against all

Defendants.

As noted, on February 16, 2015, Plaintiff filed a Motion for Summary Judgment (Doc.

No. 632) and on February 17, 2015, Defendants filed a Cross-Motion for Summary Judgment.

(Doc. No. 634.) These Motions are now ripe for disposition.

IV. STANDARD OF REVIEW

Granting summary judgment is an extraordinary remedy. Summary judgment is

appropriate “if the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In reaching this

decision, the court must determine whether “the pleadings, depositions, answers to

interrogatories, admissions, and affidavits show there is no genuine issue of material fact and that

the moving party is entitled to judgment as a matter of law.” Favata v. Seidel, 511 F. App’x 155,

158 (3d Cir. 2013) (quoting Azur v. Chase Bank, USA, Nat’! Ass’n, 601 F.3d 212, 216 (3d Cir.

2010) (quotation omitted)). A disputed issue is “genuine” only if there is a sufficient evidentiary

basis on which a reasonable jury could find for the non-moving party. Kaucher v. Cnty. of

Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986)). For a fact to be considered “material,” it “must have the potential to alter the

outcome of the case.” Favata, 511 F. App’x at 158. Once the proponent of summary judgment

“points to evidence demonstrating no issue of material fact exists, the non-moving party has the

duty to set forth specific facts showing that a genuine issue of material fact exists and that a

reasonable factfinder could rule in its favor.” Id. (quoting Azur, 601 F.3d at 216 (internal

quotation marks omitted)).

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In deciding a motion for summary judgment, “[t]he evidence of the nonmovant is to be

believed, and all justifiable inferences are to be drawn in his favor.” Id. (quoting Chambers ex

rel. Chambers v. Sch. Dist. of Phila. Bd. of Educ., 587 F.3d 176, 181 (d Cir. 2009) (quotation

omitted)). The Court’s task is not to resolve disputed issues of fact, but to determine whether

there exists any factual issues to be tried. Anderson, 477 U.S. at 247-249. Whenever a factual

issue arises which cannot be resolved without a credibility determination, at this stage the Court

must credit the non-moving party’s evidence over that presented by the moving party. Id. at 255.

If there is no factual issue, and if only one reasonable conclusion could arise from the record

regarding the potential outcome under the governing law, summary judgment must be awarded

in favor of the moving party. Id. at 250.

When the parties have filed cross-motions for summary judgment, as in this case, the

summary judgment standard remains the same. Transguard Ins. Co. of Am., Inc. v. Hinchey,

464 F. Supp. 2d 425, 430 (M.D. Pa. 2006). “When confronted with cross-motions for summary

judgment... ‘the court must rule on each party's motion on an individual and separate basis,

determining, for each side, whether a judgment may be entered in accordance with the summary

judgment standard.’” Id. (quoting Marciniak v. Prudential Fin. Ins. Co. of Am., 184 F. App’x

266, 270 (3d Cir. 2006)). “If review of [the] cross-motions reveals no genuine issue of material

fact, then judgment may be entered in favor of the party deserving of judgment in light of the law

and undisputed facts.” Id. (citing Iberia Foods Corp. v. Romeo, 150 F.3d 298, 302 (3d Cir.

1998)).

Vv. ANALYSIS

In the Cross-Motions for Summary Judgment, each party seeks summary judgment in its

favor on each claim. As noted above, the remaining claims are contained in the following counts

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of the SAC: (1) Count I—Intentional Discrimination in violation of 42 U.S.C. § 1981 against all

Defendants; (2) Count II—Willful Retaliation in violation of 42 U.S.C. § 1981 against all

Defendants; (3) Count III—Hostile Educational Environment in violation of 42 U.S.C. § 1981

against Sahar, Parrish, and Drexel University; (4) Count IV—Intentional Discrimination in

violation of Title VI of the Civil Rights Act, 42 U.S.C. § 2000d, against Drexel University;

(5) Count V—Willful Retaliation in violation of Title VI of the Civil Rights Act, 42 U.S.C.

§ 2000d against Drexel University; (6) Count VI—Conspiracy in violation of 42 U.S.C. § 1985

against Sahar, Parrish, and Hamilton; and (7) Count VII—Racially Motivated Breach of Contract

in violation of 42 U.S.C. § 1981(b) against all Defendants. Because of the overlapping nature of

the claims, the Court will discuss them out of turn to avoid duplicative analysis.

A. Plaintiff Has Failed to Raise a Genuine Issue of Material Fact with Respect

to His Claims of Intentional Discrimination under 42 U.S.C. § 1981 and Title

VI of the Civil Rights Act, 42 U.S.C. § 2000d

In Counts I and IV respectively, Plaintiff brings a claim of intentional discrimination

pursuant to 42 U.S.C. § 1981 against all Defendants and a claim of intentional discrimination

pursuant to Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, against Drexel

University. Although the statutes guarantee different rights, the same analysis applies to both

statutes. Accordingly, the Court will discuss these claims concurrently.

42 U.S.C. § 1981 guarantees that “[a]ll persons within the jurisdiction of the United

States shall have the same right .. . to make and enforce contracts . . . as is enjoyed by white

citizens.” “The term ‘make and enforce contracts’ includes the making, performance,

modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms,

and conditions of the contractual relationship.” 42 U.S.C. § 1981(b). Under 42 U.S.C. § 1981, a

plaintiff must establish: (1) that he belongs to a racial minority; (2) an intent to discriminate on

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the basis of race by the defendant; and (3) discrimination concerning one or more of the activities

enumerated in Section 1981, including the right to make and enforce contracts. Brown v. Philip

Morris Inc., 250 F.3d 789, 797 (3d Cir. 2001).

Title VI of the Civil Rights Act provides, “[nJo person in the United States shall, on the

ground of race, color, or national origin, be excluded from participation in, be denied the benefits

of, or be subject to discrimination under any program or activity receiving Federal financial

assistance.” 42 U.S.C. § 2000d. Under Title VI, a plaintiff must show: (1) that there is racial or

national origin discrimination; and (2) the entity engaging in discrimination is receiving federal

financial assistance.” Abdullah v. Small Bus. Banking Dept. of Bank of America, Civ. A. No.

13-0305, 2013 WL 1389755, at *2 (E.D. Pa. Apr. 5, 2013) (citing Baker v. Bd. of Regents of

Kan., 991 F.2d 628, 631 (10th Cir. 1993). Plaintiff brings his Section 1981 claim against all

Defendants, and his Title VI claim against Drexel University because Title VI applies only to

entities. See Whitfield v. Notre Dame Middle Sch., 412 F. App’x 517, 521 (3d Cir. 2011)

(noting that individual liability cannot be asserted under Title VI).

Both Title VI and Section 1981 provide a private cause of action for intentional

discrimination. Pryor v. Nt’l Collegiate Athletic Ass’n, 288 F.3d 548, 562 (3d Cir. 2002). “The

standard for establishing an intent to discriminate, [the second prong under Section 1981 and the

first prong under Title VI] is identical in the Title VI and § 1981 contexts.” Id. at 569.

Accordingly, if Plaintiff is unable to prove intentional discrimination under Title VI and Section

1981, then Plaintiffs claims fails. Plaintiff offers direct and circumstantial evidence that he

alleges demonstrates Defendants’ discriminatory intent. The Court will review each form of

evidence seriatim.

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1. Plaintiff has not presented direct evidence of discrimination

Plaintiff contends that he has produced direct evidence” of discrimination. Direct

evidence of discrimination is defined as “evidence sufficient to allow the jury to find that the

decision makers placed substantial negative reliance on the plaintiffs race in reaching their

decision to [dismiss] him.” Fakete v. Aetna, Inc., 308 F.3d 335, 338 (3d Cir. 2002). Such

evidence is overt or explicit evidence which directly reflects discriminatory bias by a decision

maker. Armbruster _v. Unisys Corp., 32 F.3d 768, 778-79 (3d Cir. 1994) (describing direct

evidence as the proverbial “smoking gun”). This evidence must be “so revealing of

discriminatory animus that it is not necessary to rely on any presumption from the prima facie

case to shift the burden of production.” Id. at 778.

a. Comments contained in Plaintiff's student records

Initially, Plaintiff argues that direct evidence of Defendants’ discriminatory intent exists

in “Communist-style hidden files” Defendants maintained on Plaintiff. (Doc. No. 632 at 35.) At

the outset, the Court finds nothing to suggest that DUCOM created “hidden files.” Rather,

Plaintiff cites to his student files and summaries created in advance of the meetings of the

Promotions Committee. Plaintiff first refers to a student profile of Plaintiff and quotes from a

comment section. (Doc. No. 633-16 at 33.) The “direct evidence” of discrimination Plaintiff

relies on in the comment section includes:

‘4 The Third Circuit has held that under 42 U.S.C. § 1981, if a plaintiff produces direct

evidence of discrimination, the burden shifts to defendant “to convince the trier of fact that it

is more likely than not that the decision would have been the same absent consideration of

the illegitimate factor” in accordance with the test set forth in Price Waterhouse v. Hopkins,

490 U.S. 228, 276 (1989). Brown v. J. Kaz, Inc., 518 F.3d 175, 181 (3d Cir. 2009). Price

Waterhouse, however, has not been applied to Title VI. As will be explained infra, because

Plaintiff has failed to adduce direct evidence of discrimination, the Court will not engage in

the Price Waterhouse inquiry.

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.. . Received Unprofessional Citation on Peer Evaluations’ for Gross [sic]... .

Odd Interactions, word choices. ... Lack of social skills noted by Dr. Parrish

(personal space issues, walking around with breast in pocket.) Seems more

comfortable with research. ... Will be required to have counseling. ... Family

Medicine site wants to give him an [Unsatisfactory] in [Family Medicine] at

Monmouth. Unable to apply clinical knowledge to patients. Awkward,

unprofessional, Immature [sic], lacking in knowledge. Got into altercation with

attending in front of patient about not being taught something. Had difficulty

interacting with office staff. ... Dr. Fitzpatrick described his knowledge basis as

‘atrocious’ in ICM group for Physical Diagnosis. Biggest problem was

inappropriate communication (medical jargon), would use nonmedical terms in

medical communication. [Following Plaintiff's dismissal from DUCOM] Dr.

Fitzpatrick cited ‘horrible communication skills.” Per Dr. Fuchs, “can’t see forest

for [sic] trees.” He often goes off on tangents in conversations.

(Doc. No. 634-16 at 33-34.)

Plaintiff also refers to school records which document a student’s progress in passing the

USMLE Step 1 exam. At the top of the page, Plaintiff's status is recorded as “Yet to Pass Step

1.” (Doc. No. 633-16 at 35.) Plaintiff quotes from the notes recorded following his first

dismissal in 2009. The school noted that Plaintiff was:

overwhelmed by amount of material in ICM [Intro Clinical Medicine] and not

knowing what was important; isolation from peers; depression. Dr. Parrish

commented on his anxiety. Very introverted, socially awkward. Insists he wants

to be in med school... . Dr. Ramchandani cites his high intelligence in his

working with him on remediation exam, concerned about psychological issues.

Lacks self-awareness about anxiety, perfectionism, depression.

(Doc. No. 633-16 at 36.)

Next, Plaintiff includes the minutes from a meeting of the Clinical Promotions

Committee held on December 10, 2010, in which they discuss his failing the clinical portion of

the Family Medicine clerkship:

Family Medicine attendings were shocked by his knowledge base; felt he lacked

knowledge; couldn’t apply knowledge to patient care. Also felt that he was

'S Pursuant to the DUCOM handbook, if a student receives a Citation for Unprofessional

Behavior, it is recorded and the Associate Dean of Student Affairs is contacted. There is no

inference from this notation that it was created with racial animus. (Doc. No. 633, Ex. 13.)

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awkward and immature. In front of a patient, Kei questioned attending. Kei did

not interact well with staff. Attendings felt that he had strange interactions;

possibly depressed. Attendings felt that he should repeat Family Med. Possible

reason for behavior=Kei failed Step 1 and found out halfway through rotation. He

is scheduled to take Step 1 again on 12/22/10; and is taking Family Med Shelf

Exam on 12/29/10. Regardless of how he does on the Fam Med Shelf, attendings

want to give him a grade of Unsatisfactory. Giving him a [grade of

Unsatisfactory] may be grounds for dismissal for student. When Dean Homan

readmitted him, letter stated that if he ever got a grade lower than Satisfactory,

that may be grounds for dismissal. Motion: If Family Med gives him less than

Satisfactory, then he will be dismissed from [DUCOM].

(Doc. No. 633-15 at 3.)

Plaintiff also selects quotes from the discussion of his dismissal by the Promotions

Committee in April 2011:

[Plaintiff] discussed loss of confidence about having to repeat Year 2, series of

errors in ‘trying to do too many things at same time.’ Says he will see Dr. Moore

and faculty to be sure he can handle stress, make sure everything is going okay.

Says he needs to work on interpersonal skills and says part of the problem is that

he lives at home and doesn’t have the opportunity to interact as much with others.

(Doc. No. 633-16 at 35-36.)

In addition, Plaintiff refers to the following comments from the May 13, 2011 Clinical

Promotions Committee’s meeting:

Here to appeal dismissal . . . dismissed again on academic grounds. Also has

communication issues; cannot multi-task. Lei feels that he needs to be able to

multi-task and be able to balance different things, especially as a physician . . .

needs to gain his confidence back by being successful with just one thing . . . was

advised not to take a shelf exam, but took it anyway because he wanted to be

successful with something — he needed confidence . . . Lei feels as though his

interpersonal skills need work and improvement — he will meet with faculty and

advisors . . . [and] read articles on interpersonal skills.

(Doc. No. 633-17 at 15.)

Plaintiff contends that the comments above contain racial slurs. To support this

allegation, he points to the following phrases: “odd interactions, word choices,” “lack of social

99 66 39 66

skills, “horrible communication skills,” “awkward, immature,” “can’t see forest for trees,” “He

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often goes off on tangents in conversations.” (Doc. No. 632 at 129.) Plaintiff argues that

“It]hese are typical of racial profiling slurs and racially oriented language by [DUCOM]

officials/administrators ....” (Id.) This argument, however, is unconvincing. Simply put, no

inference of racial animus arises from these phrases.

When a plaintiff presents what he contends is “direct evidence” of racial discrimination,

the evidence must be “overt or explicit evidence which directly reflects discriminatory bias by a

decision maker.” Bullock v. Children’s Hosp. of Phila, 71 F. Supp. 2d 482, 484 (E.D. Pa.

1999); see also Armburster, 32 at 778-79, 782 (analogizing direct evidence to the proverbial

“smoking gun”). Plaintiff here has presented race-neutral evidence that would not convince a

jury that decision makers acted with discriminatory animus. In Walden v. Saint Gobain

Corporation, the court analyzed whether facially race-neutral evidence could act as direct

evidence of animus in a Section 1981 case involving an African-American plaintiff. 323 F.

Supp. 2d 637, 643-44 (E.D. Pa. 2004). In Walden, plaintiffs supervisor told him that he

preferred employees who “fit into a corporate culture,” and that plaintiff did not do so, because

he did not wear Dockers. Id. at 644. The court concluded that neither statement was motivated

by racial animus, but rather related to the company’s dress code preference, and the “ineffable

qualities and conduct associated with the professional and business communities.” Id. As such,

plaintiff did not have any “direct evidence” of discrimination. Id.; compare Fakete, 308 F.3d at

336, 339 (finding direct evidence of animus based on age existed where supervisor stated to

plaintiff that he was “looking for younger single people that will work unlimited hours,” and as a

consequence “[plaintiff] wouldn’t be happy [at Aetna] in the future”).

Here, Plaintiff has failed to adduce direct evidence of discrimination because all of the

remarks are facially race-neutral and speak to concerns about Plaintiff's professionalism and the

24

Resp. Supp. Appx. 27

Case 2:11-cv-06708-JHS Document 683 Filed 09/04/15 Page 28 of 82

“ineffable qualities and conduct associated with” the professionalism of a medical student.

Walden, 323 F. Supp. 2d at 643-44. For example: “Received Unprofessional Citation on Peer

Evaluation . . . unprofessional . . . inappropriate communication;” “awkard and immature . . . In

front of patient Kei questioned attending. Kei did not interact well with staff. Attendings felt

that he had strange interactions.” (Doc. No. 633-16 at 3, 35-36; Doc. No. 634-16 at 33-34.) In

fact, on May 13, 2011, Plaintiff even acknowledged that “his interpersonal skills need work and

improvement,” and that because he lives at home, he “doesn’t have the opportunity to interact as

much with others.” (Doc. No. 633-17 at 15; Doc. No. 633-16 at 35-36.)

The comments also address Plaintiff's trouble communicating and his lack of medical

knowledge: “Odd Interactions, word choices .... Seems more comfortable with research... .

lacking in knowledge .... Dr. Fitzpatrick described his knowledge base as ‘atrocious’ in ICM

group for Physical Diagnosis . . . would use nonmedical terms in medical communication. Dr.

Fitzpatrick cited ‘horrible communication skills;’” “Family Medicine attendings were shocked by

his knowledge base; felt he lacked knowledge; couldn’t apply knowledge to patient care.” (Doc.

No. 633-15 at 3; Doc. No. 634-16 at 33-34.) Comments concerning Plaintiffs medical

knowledge and ability to apply it do not display racial animus, but rather focus on Plaintiff's

likelihood of success as a doctor.

The comments also reflect a concern that Plaintiff may have anxiety and depression

issues: “Will be required to have counseling;” “overwhelmed by amount of material in ICM and

not knowing what was important; isolation from peers; depression. Dr. Parrish commented on

his anxiety. Very introverted .... concerned about psychological issues ... . anxiety,

perfectionism, depression;” “[Plaintiff] discussed loss of confidence about having to repeat Year

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