Petition for Writ of Certiorari — Goodwill v. Texas A&M University Medical School

App. 4

I. Case Background

Derrick Goodwill, an African-American male and

former student at the Texas A&M College of Medicine

(“College of Medicine”), filed this suit against the College

of Medicine and three members of its faculty, alleging that

he was wrongfully dismissed from its medical program in

violation of 42 U.S.C. § 1981 (“Section 1981”), 42 U.S.C.

§ 1983 (“Section 1983”), Title VI of the Civil Rights Act of

1964 (“Title VI”), the Americans with Disabilities Act

(“ADA”), and Texas state law.’

Plaintiff initially enrolled in the College of Medicine in

1996.* During Plaintiff’s first two years of course work

there, he satisfied all academic requirements.‘ His aca-

demic troubles began during his third year of medical

school, in which he was required to take part in several

clinical clerkships. After passing his first clerkship, he

began his second clerkship, in Pediatrics, on August 17,

1998.° During that clerkship, Plaintiff noticed that he felt

overly fatigued during the daytime and would often fall

asleep during classroom lectures.’ After undergoing tests,

Plaintiff was told he either had narcolepsy or sleep depri-

vation syndrome.’ His pulmonologist recommended that,

* Plaintiff asserts claims under state law for civil conspiracy,

breach of fiduciary duty, and intentional infliction of emotional distress.

* Affidavit of Kathleen M. Fallon, M.D., Docket Entry No. 56,

Exhibit A (“Fallon Aff.”) J 3.

* Id. {9 5-7.

* Id. {4% 9-10.

* Affidavit of Derrick Goodwill, Docket Entry 58, Exhibit 41

(“Goodwill Aff.”) at 3.

” See Fallon Memorandum to File dated August 26, 1998, Docket

Entry No. 58, Exhibit 21.

App. 5

for the next three weeks, Plaintiff get at least eight hours

of sleep per night.’ Plaintiff requested, and was subse-

quently granted, a leave of absence to resolve his medical

problems.”

After an approximately three-week leave of absence,

Plaintiff returned to the program and began the Internal

Medicine clerkship under the supervision of Ben Green

(“Green”), the clerkship coordinator.” The Internal Medi-

cine clinic is divided into six weeks of inpatient medicine

and six weeks of outpatient medicine.” Plaintiff failed the

inpatient portion.”

At a January 14, 1999, meeting held by the Student

Promotions Committee (“SPC”), Green proposed a reme-

diation plan requiring Plaintiff to retake the inpatient

portion of the clerkship.” The SPC accepted the plan and

placed Plaintiff on academic probation.“ In a letter dated

January 19, 1999, Kathleen Williams (“Fallon”’), the

Assistant Dean of Student Affairs, notified Plaintiff of the

SPC’s decision and explained, “While on probation, any

further failures may result in dismissal from medical

* Id.

* Letter from Fallon to Michael Friedland, M.D., Vice-President for

Health Affairs and Dean of Medivine, dated September 7, 1998, Docket

Entry No. 58, Exhibit 20.

” Fallon Aff. J 13.

ll Id. ae

" Td.

” Id.; Affidavit of Ben Green, M.D., Docket Entry No. 56, Exhibit

C. (“Green Aff.”) { 4.

* Green Aff. 7 4.

“ Defendant Williams is now known as Kathleen Fallon.

App. 6

school.”* Plaintiff appealed his failing grade, complaining

that his clinical evaluators neither gave him feedback nor

told him he was in danger of failing the inpatient rota-

tion.” After investigating Plaintiff’s claims, Green con-

firmed that Plaintiff had not been given sufficient

feedback and agreed to change his grade from an “F” to

an “IP” (or “in progress”) while Plaintiff retook the inpa-

tient portion.” Nonetheless, Plaintiff remained on aca-

_ demic probation.”

Plaintiff passed his next clerkship, in General Sur-

gery.” Even so, his instructors noted deficiencies in Plain-

tiff’s ability to solve problems and reason in the clinical

setting.” Therefore, the SPC imposed an additional re-

quirement that Plaintiff complete an acting internship in

General Surgery during his fourth year.” Plaintiff passed

his next clerkship, in Psychiatry.”

After completing his Psychiatry clerkship, Plaintiff

began the Family Medicine clerkship, which ran from May

10, 1999, through June 18, 1999.” In a letter dated July

18, 1999, Fallon notified Plaintiff that he had failed the

Family Medicine clerkship and explained that members of

* Letter from Fallon to Plaintiff dated January 19, 1999, Docket

Entry No. 23, Exhibit C-2.

* Green Aff. 7 5.

* Id. 1 6.

* Id. J 7.

* Fallon Aff. ¥ 15.

* Td.; see also Plaintiff’s Surgery Clerkship Grade Form, Docket

Entry No. 56, Exhibit A-3. —

* Fallon Aff. 9 15.

* Id. J 16.

* Id. 4 17.

App. 7

the SPC had expressed their concern about his difficulty

solving problems and reasoning in the clinical setting.”

Fallon also explained to Plaintiff that, pursuant to the

remediation plan approved by the SPC, he was required to

retake the Family Medicine clerkship and also undergo

psychometric testing.” Fallon warned Plaintiff that “any

further failures, while on probation, could result in expul-

sion.”

On June 28, 1999, Plaintiff began his Pediatrics

clerkship, which had been delayed by his leave of ab-

sence.” He completed the clerkship on August 6, 1999, but

did not receive a passing grade.~ The Pediatrics depart-

ment recommended a six-weeks remediation.” The SPC

rejected this recommendation and, instead, voted to

recommend to Roderick McCallum (“McCallum”), the

Interim Dean of the College of Medicine, that Plaintiff be

dismissed from the medical school for academic deficien-

cies.” McCallum accepted the SPC’s recommendation and

notified Plaintiff of his decision.” Plaintiff then appealed

his failing grades from the Family Medicine and Pediatrics

clerkships.” McCallum granted Plaintiff the right to

* Letter from Fallon to Plaintiff dated July 8, 1999, Docket Entry

No. 56, Exhibit A-7.

-

™ Id.

* Fallon Aff. { 18.

* Id. J 20.

” Id. { 22.

” Affidavit of Roderick E. McCallum, Ph.D., Docket Entry No. 56,

Exhibit B (“McCallum Aff.”) ¥ 3.

* Id. ¥ 4; Letter from McCallum to Plaintiff dated September 9,

1999, Docket Entry No. 56, Exhibit B-1.

* McCallum Aff. { 8.

App. 8

appeal and appointed two separate committees to consider

the appeals.“ Both committees upheld the failing grades

and McCallum affirmed the decisions.*

In a letter dated January 10, 2000, McCallum de-

clined to grant Plaintiff an appeal of his dismissal from

the school.” McCallum wrote to Plaintiff, “After discussion

with faculty and careful consideration, I feel that the

issues you raised were addressed at the two grade appeal

hearings or represent a misunderstanding of school policy

on your part.”

Plaintiff filed this lawsuit on January 10, 2002.“ He

amended his complaint on May 24, 2002.° On July 30,

2002, the Defendants moved for summary judgment on all

of Plaintiff’s claims except his Title VI claim against the

College of Medicine and his ADA claim against McCallum.”

The undersigned magistrate judge recommended the motion

be granted in part and denied in part, and the district court

subsequently adopted this recommendation.“ The result

* Id. ¥{ 8-9; Letter from McCallum to Plaintiff dated November 9,

1999, Docket Entry No. 56, Exhibit B-4.

* McCallum Aff. 49; Letters from McCallum to Plaintiff dated

November 24, 1999, Docket Entry No. 56, Exhibit B-5.

* Letter from McCallum to Plaintiff dated January 10, 2000,

Docket Entry No. 56, Exhibit B-7.

* Id.

* Plaintiff’s Original Complaint, Docket Entry No.1. -

* Plaintiff’s Amended Original Complaint, Docket Entry No. 20

(“Amended Complaint”).

“ Defendants’ Motion for Partial Summary Judgment, Docket

Entry No. 23.

“' Memorandum, Recommendation and Order, Docket Entry No. 33

(“MRO”); Order Adopting Magistrate Judge’s Memorandum and

Recommendation, Docket Entry No. 35.

App. 9

was that the court granted summary judgment in the

Defendants’ favor on Plaintiff’s Section 1981 and Section

1983 claims, Title VI claim against the individual Defen-

dants, and state law claims against the College of Medi-

cine.” The motion was denied as to Plaintiff’s ADA claim

and state law claims against the individual Defendants.“

Additionally, the court lifted the existing stay on discovery

to give Plaintiff an opportunity to ascertain information

relevant to his remaining causes of action.“

Thus, Plaintiff has several claims pending: a Title VI

claim asserted against the College of Medicine, ADA

claims against the Defendants, and state law claims

against the individual Defendants.

On April 5, 2004, per court order, Defendants moved

for summary judgment on these remaining claims.“

Plaintiff responded in kind and also moved to strike

portions of Defendants’ summary judgment evidence.” The

court now considers both motions.

II. Motion to Strike

Plaintiff moves to strike part of Defendants’ summary

judgment evidence. He first argues that the affidavits

of Fallon, McCallum, and Green contain inadmissible

“ MRO at 34.

* Id.

nae

“ Defendants’ Motion for Summary Judgment With Brief in

Support, Docket Entry No. 56 (“Motion for Summary Judgment”).

“ Brief in Support. of and Response to Defendants’ Motion for

Summary Judgment and Motion to Strike, Docket Entry No. 58

(“Plaintiff’s Response” and “Motion to Strike”).

App. 10

hearsay, statements not made on personal knowledge,

legal conclusions, expert opinions without proper founda-

tion, and statements that violate the best evidence rule.”

As an initial matter, the court notes that Plaintiff raised

some of these same objections earlier, as part of his re-

sponse to Defendants’ motion for partial summary judg- -

ment. The court overruled those objections then and finds

no reason to deviate from that determination now. Thus, to

the extent Plaintiff merely repeats the same objections he

made previously, those objections are OVERRULED.

With that said, the court recognizes that many of

Plaintiff’s objections to statements contained in the

affidavits are dissimilar to those he raised previously. The

court has considered the new objections and finds them

largely devoid of merit. However, the court does find merit

with Plaintiff’s objection to statements made by Fallon,

McCallum, and Green in their affidavits that Plaintiff was

afforded full “due process” in connection with his dis-

missal. To the extent these statements are legal conclu-

sions, the court agrees they should be stricken from the

record. These particular objections are, therefore, SUS-

TAINED. All other objections to the these affidavits are

OVERRULED. Plaintiff also objects to certain exhibits

attached to the affidavits.” The court finds no merit to

“ Plaintiff incorrectly cites the Best Evidence Rule as Federal Rule

of Evidence 106. In actuality, this rule is found in Federal Rule of

Evidence 1002, which requires production of the original writing to

prove the contents of that writing.

“ Plaintiff makes three objections to the exhibits. First, he objects

to Exhibit A-9 (the report of Louis A. Gamine, Ph.D., setting forth the

results of Plaintiff’s psychometric testing) on the grounds that its

disclosure violates the physician-patient privilege. This objection is

without merit. Here, the relevance of Dr. Gamino’s report is confined to

the issue of whether Plaintiff possessed a disability, i.e., it — only

(Continued on following page)

App. 11

these objections and, therefore, they are OVERRULED.

Accordingly, Plaintiff’s motion should be GRANTED IN

PART and DENIED IN PART.”

Ill. Summary Judgment Standard

The standards for sunmmary judgment under federal

law are well established. Summary judgment is warranted

only when the evidence before the court fails to raise any

genuine issues of material fact and the movant is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986). A dispute is

be relevant to Plaintiff’s federal ADA claim. It is well-settled, however,

that no physician-patient privilege exists under federal law. Gilbreath

v. Guadalupe Hosp. Found., Inc., 5 F.3d 785, 791 (5th Cir. 1993). Thus,

although a physician-patient privilege does exist under Texas law, see

Texas Rule of Evidence 509, that privilege is irrelevant in this instance

because state law is not implicated.

Next, Plaintiff objects to Exhibits D-2 and D-3 (the June 1997 and

June 1998 Student Handbooks) because they are incomplete, and to

Exhibits D-2, D-3, D-4, and D-5 (Student Handbooks from June 1997

through December 1999) because they are irrelevant. This objection is

overruled as well. First, the court finds that Defendants were under no

obligation to submit the entire text of each Student Handbook. Under

the rule of optional completeness stated in Federal Rule of Evidence

106, if Plaintiff believed the omitted pages were material, he had the

option to supplement the record with those pages. Second, the court is

hard-pressed to understand how the Student Handbooks could be

considered irrelevant. They set out the applicable procedures and

guidelines for grading, remediation, leaves of absence, grade appeals,

academic probation, and academic dismissal, all issues that are

relevant to the claims in this lawsuit.

Finally, Plaintiff objects to “any hearsay contained within the

documents” attached to the affidavits of Fallon and McCallum. This

vague and generalized objection simply does not merit consideration by

the court.

“ The specific objections the court will sustain are: In (in part), 1s,

2a, 2f, and 6 (in part, as it pertains to ¥ 9 of Dr. Green’s Affidavit).

App. 12

“genuine” if the evidence would permit a reasonable jury

to return a verdict in favor of the nonmoving party. Ander-

son v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); TIG

Ins. Co. v. Sedgwick James of Washington, 276 F.3d 754,

759 (5th Cir. 2002). A fact is “material” if the relevant

substantive law identifies it as one that might reasonably

affect the outcome of the case. Liberty Lobby, 477 U.S. at

248; Ameristar Jet Charter, Inc. v. Signal Composites, Inc.,

271 F.3d 624, 626 (5th Cir. 2001).

The movant must inform the court of the basis for a

grant of summary judgment by identifying relevant

excerpts from pleadings, depositions, answers to inter-

rogatories, admissions, and affidavits on file, that demon-

strate the absence of genuine issues of material fact. Fed.

R. Civ. P. 56(c); Celotex Corp., 477 U.S. at 323; Topalian v.

Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992). If the moving

party satisfies its burden, the adverse party must go

beyond the pleadings and produce competent evidence

which demonstrates that genuine issues of material fact

exist that must be resolved by a trier of fact. Fed. R. Civ. P.

56(e); Celotex, 477 U.S. at 324. The adverse party, how-

ever, must show more than “some metaphysical doubt as

to the material facts” to withstand summary judgment.

Meinecke v. H & R Block of Houston, 66 F.3d 77, 81 (5th

Cir. 1995). Conclusory statements, speculation, and

unsubstantiated assertions are not sufficient to raise

material fact issues for trial. TJG Ins., 276 F.3d at 759.

When deciding whether the evidence creates a genuine

issue of material fact, the court resolves all doubts and

draws all justifiable inferences in favor of the party

opposing the motion. Liberty Lobby, 477 U.S. at 255;

Fierros v. Tex. Dep’t of Health, 274 F.3d 187, 190 (5th Cir.

2001).

App. 13

IV. Legal Analysis

A. Title VI

Plaintiff asserts a claim against the College of Medi-

cine under Title VI of the Civil Rights Act of 1964, 42

U.S.C. § 2000d, which prohibits racial discrimination in

the administration of federally funded programs. In its

motion for summary judgment, the College of Medicine

contends it is entitled to summary judgment on this claim

because Plaintiff is unable to demonstrate that his race

was a motivating factor in the decision to dismiss him

from the medical school.

Title VI provides: “No 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 subjected to discrimination under any program or _

activity receiving Federal financial assistance.” 42 U.S.C.

§ 2000d. Therefore, to prevail on a Title VI claim, a plain-

tiff must show that the defendant: (1) received funding

from the federal government; and (2) engaged in inten-

tional discrimination on the basis of race, color, or national

origin. 42 U.S.C. § 2000d; see also Alexander v. Sandoval,

532 U.S. 275, 280 (2001). Here, the first prong is satisfied,

as it is undisputed that the College of Medicine receives

federal financial assistance and is, therefore, subject to

Title VI’s prohibition against discrimination.” Thus, the

critical inquiry is whether the College of Medicine inten-

tionally discriminated against Plaintiff on the basis of his

race, color, or national origin.

” Motion for Summary Judgment at 13.

App. 14

Whether Plaintiff can show intentional discrimination

in this instance is determined using the burden-shifting

scheme set forth by the Supreme Court in McDonnell

Douglas Corp. v. Green, 411 U.S. 93 (1973)." See Freeman

v. Fahey, 374 F.3d 663, 666 (8th Cir. 2004) (applying

McDonnell Douglas test to a Title VI claim); Bryant v.

Indep. Sch. Dist. No. I-38 of Garvin County, Okla., 334

F.3d 928, 929-30 (10th Cir. 2003) (same); Baldwin v. Univ.

of Tex. Med. Branch at Galveston, 945 F. Supp. 1022, 1031-

34 (S.D. Tex. 1996) (same). ;

Under the McDonnell Douglas analytical framework,

a plaintiff must first establish a prima facie case of dis-

crimination. Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 142-43 (2000); Price v. Fed. Express Corp.,

283 F.3d 715, 720 (5th Cir. 2002). If the plaintiff succeeds

_ in doing so, a presumption of discrimination arises, and

the burden shifts to the defendant to produce a legitimate,

nondiscriminatory reason for its alleged discriminatory

action. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,

254-56 (1981); Price, 238 F.3d at 720. If the defendant

satisfies its burden, the presumption of discrimination

disappears, and the plaintiff must then prove the defen-

dant’s proffered reason is not true but, rather, a mere

pretext for intentional discrimination. Reeves, 530 U.S. at

142-43; Price, 238 F.3d at 720.

* Plaintiff, citing Pryor v. NCAA, 288 F.3d 548 (3rd Cir. 2002),

contends that an altogether different burden-shifting analysis is

applicable to his Title VI claim. In Pryor, the plaintiff alleged that the

NCAA violated Title VI by adopting a policy with the intent of discrimi-

nating against black athletes. In the case at bar, Plaintiff does not

specify a particular policy that he believes the College of Medicine

enacted with discriminatory motives. As a result, the burden-shifting

— standard set out in Pryor is inapplicable.

App. 15

In the Title VII employment context, a plaintiff can

establish a prima facie case of discrimination by showing

that he: (1) is a member of a protected class; (2) was

qualified for his position; (3) was subjected to an adverse

employment action; and (4) was replaced by someone

outside the protected class, or, in the case of disparate

treatment, shows that similarly situated employees not

members of his protected class were treated more favora-

bly. Bryan v. McKinsey & Co., 375 F.3d 358, 360 (5th Cir.

2004); Okove v. Univ. of Tex. Houston Health Sci. Ctr:, 245

F.3d 507, 512 (5th Cir. 2001). However, as Plaintiff’s claim

arose out of the academic context setting and does not

concern employment, the elements of the prima facie case

must be altered to fit the factual situation at hand._See

Burdine, 450 U.S. at 254 n.6 (noting that the prima facie

model set forth in McDonnell Douglas is not inflexible and

may be tailored to fit the particular factual scenario). As

an African-American, Plaintiff falls within a class pro-

tected by Title VI. He was admitted to the College of

Medicine, studied in its medical program for over three

years, and was subjected to an adverse action, i.e., dis-

missal.

The court stops to note that only Plaintiff’s dismissal

is actionable. In the court’s view, Title VI’s protections do

‘not extend to redressing below average grades or being

placed on academic probation. Applying the Title VII

requirement of an “ultimate employment action” to the

academic setting, the court finds that Title VI's private

right of action only reaches those “ultimate academic

decisions” such as dismissal or suspension. Cf. Mattern v.

Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997)

(only “ultimate employment decisions” qualify as adverse

employment actions to establish a prima facie case of

App. 16

discrimination or retaliation); Dollis v. Rubin, 77 F.3d 777,

781-82 (5th Cir. 1995) (“Title VII was designed to address

ultimate employment decisions, not to address every

decision made by employers that arguably might have

some tangential effect upon those ultimate decisions”).”

To make out his prima facie case, Plaintiff must also

adduce some amount of evidence that he was treated

differently than similarly situated medical students who

were not members of his protected group. See Okove v.

Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 514

(5th Cir. 2001). To make this showing, Plaintiff alleges

that other medical students failed the entire first year of

medical school but were permitted to repeat.” Even if the

court were to consider the first and third years of medical

school to be academically comparable, which it does not,

Plaintiff has failed to allege these similarly situated

students were members of a different racial class. As such,

Plaintiff cannot satisfy the fourth element of his prima

facie case and his claim must fail.

However, even assuming Plaintiff had established a

prima facie case, he is still required to demonstrate that

the College of Medicine’s proffered explanation for dismiss-

ing him is false or merely a pretext for intentional dis-

crimination based on his race. See Reeves, 530 U.S. at 143.

The College of Medicine explains that Plaintiff was dis-

missed because he failed three separate clinical clerkships.

“In addition to his dismissal from the College of Medicine,

Plaintiff also complains about the two academic probationary periods

on which he was placed prior to his dismissal. The court will discuss

those two probationary periods for background purposes only.

“ Amended Complaint {{ 25, 32; Plaintiff’s Response at 16-17.

App. 17

To prove that this explanation is a pretext for racial

discrimination, Plaintiff contends that he was dismissed

only because the individuals who gave him failing grades

or participated in the dismissal proceedings were racially

biased.

Plaintiff first focuses his attention on the Internal

Medicine clerkship. He alleges that Lawrence Barenholtz,

M.D., one of several physicians who evaluated him, held a

bias against African-Americans.™ As evidence of such,

Plaintiff submits the affidavit of Jacqueline McClanahan,

a registered nurse who worked at the same hospital

location as Dr. Barenholtz.”* McClanahan testified that

Dr. Barenholtz picked on Plaintiff, attributed to him

mistakes made by white students, assigned him the most

difficult patients to work with, and, on one occasion, made

a racially offensive comment to Plaintiff. She further

testified that, in her opinion, Dr. Barenholtz had “a serious

racial bias against African-Americans,”” Plaintiff contends

that the actions taken by Dr. Barenholtz caused him to be

placed on probation and that “this probation drove every-

thing that happened after that.””

“ Plaintiff ’s Response at 24.

* Affidavit of Jacquelyn McClanahan, R.N., Docket Entry No. 58,

Exhibit 37 (“McClanahan Aff.”).

“ Id. | 4. With regard to the comment, McClanahan testified that

Dr. Barenholtz asked Plaintiff where he got his eye color. When

Plaintiff responded that he got it from his mother or father, Dr.

Barenholtz allegedly responded that he did not think so “because black

people did not have eyes like that.” Jd.

67 Id.

* Plaintiff ’s Response at 24.

App. 18

Much of the content of Ms. McClanahan’s testimony is

objectionable as hearsay, speculation or improper opinion

testimony and must be disregarded by the court as incom-

petent summary judgment evidence. However, irrespective

of whether Dr. Barenholtz held a racial bias; the evidence

shows that he did not give Plaintiff a failing grade in the

Internal Medicine clerkship. Like other evaluating physi-

cians, Dr. Barenholtz was required to fill out clinical

evaluation forms. Students were graded in five areas: (1)

data gathering, recording, and presentation; (2) medical

knowledge; (3) problem solving and clinical reasoning; (4)

interpersonal skills; and (5) professional attributes.” The

evaluator could choose from several terms to describe the

student’s”’ performance: outstanding, above expected,

expected, passable, and unsatisfactory.” The syllabus for

the clerkship provided that a student failed the clerkship

only if he received one or more marks of “unsatisfactory.”

On his clinical evaluation form, Dr. Barenholtz gave

Plaintiff four “passable” marks and one “expected” mark.”

He explained that Plaintiff had “trouble organizing his

thinking and focusing in on the problems,” “takes too long

* See Docket Entry No. 58, Exhibit 29 (clinical evaluation forms

for the Internal Medicine clerkship).

” Id. “Expected” meant the student’s performance was up to that

expected of a student at that stage of his education; “passable” meant

the student’s performance was less than expected, but not below that

required, at that stage of education; and “unsatisfactory” meant the

performance was inadequate and fell below that required. Id.

“ The syllabus for the Internal Medicine clerkship provided: “Any

unsatisfactory evaluation in even a single component of your clinical

evaluations will result in failure of the Clerkship.” (emphasis in

original). Docket Entry No. 58, Exhibit 2 at 14.

“ Dr. Barenholtz Clinical Evaluation Form, Docket Entry No. 58,

Exhibit 29.

App. 19

to get through an encounter,” and “has trouble in prioritiz-

ing the differential diagnosis.” He also indicated that

Plaintiff was not a strong candidate for a residency in

Internal Medicine.“ Even though Dr. Barenholtz’s com-

ments indicated that he believed Plaintiff to be a border-

line student, he nonetheless gave him a passing grade in

the clerkship. Plaintiff’s contention that Dr. Barenholtz’s

alleged racial bias was a causal factorin his dismissal is

simply not supported by the record.

Next, Plaintiff alleges that one of the evaluating

physicians in his Family Medicine clerkship, Michael

Kirkpatrick, M.D., held a racial bias against African-

Americans.” To substantiate this claim, Plaintiff submits

the affidavit of Cathy Falkner, a-former resident in Inter-

nal Medicine who worked with Dr. Kirkpatrick.” Falkner

testified that on the basis of her extensive interaction with

Dr. Kirkpatrick during her residency, she concluded that

he possessed a serious racial bias that made it “impossible

for him to adequately and fairly judge an African-

American.” She also stated that “it was common knowl-

edge among the medical staff that Dr. Kirkpatrick was

racially biased.” Most of Ms. Falkner’s testimony is

inadmissible and cannot be considered by the court as

competent summary judgment evidence. She is limited to

her personal observations, not her speculation concerning

Dr. Kirkpatrick’s personal motivations.

a.

~ oe

* Plaintiff’s Response at 25.

“ Affidavit of Cathy Falkner, Docket Entry No. 58, Exhibit 38.

* Id. J 3.

* Id. =

App. 20

Dr. Kirkpatrick filled out three clinical evaluation

forms during Plaintiff’s five-week long Family Medicine

clerkship. On the first clinical evaluation, Dr. Kirkpatrick

gave Plaintiff three “passable” marks and two marks of |

“unsatisfactory.” Like Dr. Barenholtz, Dr. Kirkpatrick

found that Plaintiff had problems with his medical know]-

edge and ability to solve problems in the clinical setting.

He explained on this form that Plaintiff “tries hard but

appears to have a poor fund of knowledge,” “is very unsure

when presenting,” and “has difficulty synthesizing patient

complaints into problems.””

On the second evaluation, Dr. Kirkpatrick gave

Plaintiff two “expected” marks, two “passable” marks, and

one “unsatisfactory” mark. Plaintiff received a higher

mark in each area tested, with the exception of “medical

knowledge.”” Dr. Kirkpatrick explained that Plaintiff had

shown some improvement in his ability to formulate

treatment plans, but still needed to improve his fund of

knowledge and basic clinical skills.” |

On his final evaluation form, Dr. Kirkpatrick gave

Plaintiff three marks of “passable” and two marks of

“unsatisfactory.” He noted that Plaintiff had disjointed

presentations, had difficulty processing patient remarks

into a working differential diagnosis, and still showed a

* Dr. Kirkpatrick Evaluation Form for May 12, 1999, through May

21, 1999, Docket Entry No. 56, Exhibit A-6.

7

" Dr. Kirkpatrick Evaluation Form for May 24, 1999, through

June 4, 1999, Docket Entry No. 56, Exhibit A-6.

” on

* Dr. Kirkpatrick Evaluation Form for June 7, 1999, through June

18, 1999, Docket Entry No. 56, Exhibit A-6.

App. 21

weak fund of knowledge.“ He also commented that,

although Plaintiff had shown improvement in the final

week, he “was still below the level expected for [third year]

students in the latter part of the year.”” On the basis of

these evaluations, Dr. Kirkpatrick gave Plaintiff a failing

grade in the clerkship.

As with the prior clerkship, Plaintiff has failed to

raise a fact issue that Dr. Kirkpatrick’s alleged racial bias,

on which there is precious little competent evidence,

rather than Plaintiff’s below-standard performance, was

the cause of his dismissal. As the Supreme Court has

made clear, “there will be instances where, although the

plaintiff has established a prima facie case and set forth

sufficient evidence to reject the defendant’s explanation,

no rational factfinder could conclude that the action was

discriminatory.” Reeves, 530 U.S. at 148. This is one of

those instances. First, Dr. Kirkpatrick’s critiques of clini-

cal performance were corroborated by the other attending

physicians in the Family Medicine clerkship.” Plaintiff

™ Id.

=

** See Family Medicine Progress Report of Derrick Goodwill,

Docket Entry No. 56, Exhibit A-6 (summarizing Plaintiff’s performance

in the Family Medicine clerkship and stating, “This report was dis-

cussed with all of the Senior Staff physicians who worked with Student

Doctor Goodwill, and they are in agreement with the grade. These

include Dr.’s Gerdes, Patel, Averitt, and O’Neal.”); Letter from Dr.

Michael O’Neal dated November 15, 1999, Docket Entry No. 56, Exhibit

A-6 (stating that Plaintiff’s “integration of [patient] information, in

terms of a differential diagnosis, often proved difficult”); Letter from Dr.

Parita Patel dated November 5, 1999, Docket Entry No. 56, Exhibit A-6

(stating that Plaintiff’s “history taking and case presentations were not

as detailed or as complete as one would expect from an average third

year student,” that “his physical examinations were cursory at best”

(Continued on following page)

App. 22

does not allege that these physicians held a bias against

African-Americans. Second, Plaintiff’s failing grade in the

Family Medicine clerkship did not result in his dismissal

from the College of Medicine. To the contrary, Plaintiff

remained on probation and was merely required to under-

take a second remediation.” Plaintiff was not dismissed

until he failed his third clerkship, in Pediatrics.

Plaintiff does not assert that his failing grade in

Pediatrics was a result of racial bias, but rather that

Defendant Fallon exhibited racial animus toward him

when he appealed his failing grade. He claims Fallon was

“harsh and rude,” “gave him bad information,” and “pre-

vented his representative, an African-American faculty

member, from participating in the appeals process.””

Plaintiff also submits the affidavit of Babu Paladagu, a

former medical student at the College of Medicine, who

opined that Fallon had “racial and ethnic biases.”” Pal-

adagu’s conclusory statement is inadmissible and cannot

be considered by the court. Even assuming that Fallon was

rude to Plaintiff or gave him wrong information regarding

the grade appeal process, this conduct does not provide

even a scintilla of evidence that Fallon orchestrated his

dismissal from the College of Medicine on the basis of his

race. Moreover, Plaintiff’s claim that Fallon prevented

him from having his representative, Haywood Robinson,

and that he argued with Dr. Patel about the necessity of performing a

particular examination).

” As with the prior clerkship rotation, the court does not consider

this probationary status to be actionable under Title VI because it was

not an ultimate academic decision.

* Plaintiff ’s Response at 25-26.

” Affidavit of Babu Paladagu, Docket Entry No. 58, Exhibit 39 3.

App. 23

M.D., in attendance at the grade appeal meetings, also-

fails to create a fact issue on this point.

Finally, Plaintiff asserts that Defendant McCallum

exhibited racial bias by upholding the SPC’s recommenda-

tion to dismiss him. Plaintiff’s unsubstantiated assertion

that McCallum discriminated against him is not supported

by any evidence in the record. To the contrary, the evi- ©

dence shows that McCallum took extra measures to ensure

that Plaintiff's voice was heard: he sent several written

letters to Plaintiff reminding him that he could appeal his

dismissal, excused the fact that Plaintiff’s appeal was

untimely, and considered the merits of Plaintiff’s appeal

before deciding it was without merit.”

In sum, even if the court were to find Plaintiff estab-

lished a prima facie case of discrimination, he fails to

prove the College of Medicine’s explanation is pretextual.

A rational trier of fact could not find that Plaintiff was

dismissed for any reason other than his continued below-

satisfactory performance after two probationary periods.

In reaching this conclusion, the court was especially

mindful of the Supreme Court’s instruction in Regents of

University of Michigan v. Ewing, 474 U.S. 214 (1985), that

courts should always be extremely hesitant to override the

judgment of an academic institution:

When judges are asked to review the substance

of a genuinely academic decision .. . they should

show great respect for the faculty's professional

judgment. Plainly, they may not override it

unless it is such a substantial departure from ac-

cepted academic norms as to demonstrate that

© McCallum Aff. {{ 10-11.

App. 24

the person or committee responsible did not ac-

tually exercise professional judgment.

Id. at 225; see also Bd. of Curators of Univ. of Mo. v.

Horowitz, 435 U.S. 78, 96 n.6 (1978) (Powell, J., concur-

ring) (“University faculties must have the widest range of

discretion in making judgments as to the academic per-

formance of students and their entitlement to promotion

or graduation.”); Ku v. Tennessee, 322 F.3d 431 (6th Cir.

2003) (applying deferential standards in favor of academic

institutions to a Section 1983 discrimination claim); Wynne

v. Tufts Univ. Sch. of Med., 932 F.2d 19 (1st Cir. 1991)

(same result in a Rehabilitation Act case); Hankins v.

Temple Univ., 829 F.2d 437 (3rd Cir. 1987) (Title VII case).

Although the court accepts that Plaintiff truly believes

he was discriminated against by the College of Medicine

and some of its faculty members, Plaintiff’s subjective

perception of discrimination cannot defeat summary

judgment. See Lawrence v. Univ. of Tex. Med. Branch at

Galveston, 163 F.3d 309, 313 (5th Cir. 1999). Instead, the

undisputed evidence shows that Plaintiff exhibited insuffi-

cient skills in the clinical setting over an extended period

of time, consistently was graded poorly by numerous

faculty members in the skill areas of medical knowledge,

problem solving and clinical reasoning, and’ failed to

comply with the terms of his academic probation. The

court finds no reason, from the evidence before it, to

question the College of Medicine’s decision to dismiss

Plaintiff. Accordingly, Defendants’ motion for summary

judgment should be granted on Plaintiff’s Title VI claim.

B. Americans with Disabilities Act

Plaintiff next asserts a claim under the ADA for

disability-based discrimination. More specifically, he

; App. 25

argues that Defendants treated him differently than other

students who did not have his disability and failed to

reasonably accommodate his disability. Defendants con-

tend that Plaintiff has no actionable claim because he does

not have a “disability” within the meaning of the ADA.

Plaintiff’s claim arises under Title II of the ADA, 42

U.S.C. §§ 12131-12165, which prohibits discrimination on

the basis of disability in public services, programs, and

activities.” Title II provides that “no qualified individual

with a disability shall, by reason of such disability, be

excluded from participation in or be denied the benefits of

the services, programs or activities of a public entity, or be

subjected to discrimination by any such entity.” Id.

§ 12132.

As with Title VI, the court utilizes the familiar

McDonnell Douglas burden-shifting framework to analyze

Plaintiff’s ADA claim. See Gowesky v. Singing River Hosp.

Sys., 321 F.3d 503, 511 (5th Cir. 2003); Seaman v. CSPH,

Inc., 179 F.3d 297, 300 (5th Cir. 1999). To make out a

prima facie case of discrimination under Title II of the

“ Plaintiff incorrectly frames his claim for relief as one arising

under Title I of the ADA. The ADA “forbids discrimination in three

major areas of public life: employment, which is covered by Title I of the

statute; public services, programs, and activities, which are the subject

of Title II; and public accommodations, which are covered by Title III.”

Tennessee v. Lane, 124 S.Ct. 1978, 1984 (2004). Plaintiff does not

maintain he has an employment relationship with the College of

Medicine. As a result, Title I does not govern his claim. Instead, Title II

is applicable because the College of Medicine is a division of the Texas

A&M University System, which, in turn, is a “public entity” that

provides public programs and activities. See 42 U.S.C. § 12131(1XB)

(defining public entity to include a state agency); Texas A&M Univ. v.

Bishop, 105 S.W.3d 646, 652 (Tex. App. — Houston [14th Dist.] 2002,

pet. granted) (noting that Texas A&M University is a state agency).

App. 26

ADA, Plaintiff must demonstrate: (1) he is a qualified

individual within the meaning of the ADA; (2) he was

excluded from participation in, or denied benefits of,

services, programs, or activities for which Defendants are

responsible, or otherwise was discriminated against by

Defendants; and (3) that such exclusion, denial of benefits,

or discrimination was by reason of his disability. Light-

bourn v. County of El Paso, Tex., 118 F.3d 421, 428 (5th

Cir. 1997); see also Melton v. Dallas Area Rapid Transit,

326 F. Supp. 2d 767, 771 (N.D. Tex. 2003).

Defendants challenge Plaintiff’s ability to prove the

first element, i.e., that he is entitled to protection under

the ADA as a “qualified individual with a disability.” See

42 U.S.C. § 12132. The statute defines such an individual

as one “with a disability who ... meets the essential

eligibility requirements for the receipt of services or the

participation in programs or activities provided by a public

entity.” Id. § 12131(2). Defendants contend that Plaintiff

cannot meet this definition because he does not have a

disability. ;

“As a threshold requirement in an ADA claim, the

plaintiff must, of course, establish that he has a disability.”

Waldrip v. Gen. Elec. Co., 325 F.3d 652, 654 (5th Cir. 2003)

(quoting Rogers v. Intl Marine Terminals, Inc., 87 F.3d

755, 758 (5th Cir. 1996)). Title Il’s implementing regula-

tions define “disability” as “a physical or mental impair-

ment that substantially limits one or more of the major life

activities of such individual; a record of such an impair-

ment; or being regarded as having such an impairment.”

App. 27

28 C.ER. § 35.104.” As the regulation makes clear, merely

having an impairment does not make a claimant disabled

under the ADA. See Toyota Motor Mfg., Ky., Inc. v. Wil-

liams, 534 U.S. 184, 195 (2002). Instead, the claimant

must also show that the impairment places a substantial

limitation on at least one major life activity. Id. “Major life

activities” are those that are of “central importance to

daily life.” Id. at 197. Specific examples include “caring for

one’s self, performing manual tasks, walking, seeing,

hearing, speaking, breathing, learning, and working.” 28

C.F.R. § 35.104.

The parties do not dispute that Plaintiff was evalu-

ated for sleep apnea while he was a student at the Medical

School and that sleep apnea is a physical impairment. The

critical issue is whether the sleep apnea substantially

limited any of his major life activities. To make this

showing, Plaintiff must adduce “evidence that the extent

of the limitation in terms of [his] own experience ... is

substantial.” Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555

(1999). °

~ Although the Title II regulations do not contain a

definition of the term “substantially limits,” regulations

promulgated by the EEOC to effectuate Title I of the ADA

afford significant guidance. According to the EEOC regula-

tions, the term “substantially limits” means: (1) unable to

” A “physical impairment” is defined as-“[a]ny physiological

disorder or condition, ... affecting one or more of the following body

systems: Neurological, musculoskeletal, special sense organs, respira-

tory (including speech organs), cardiovascular, reproductive, digestive,

genitourinary, hemic and lymphatic, skin, and endocrine.” 28 C.F.R.

§ 35.104. A “mental impairment” is “[aJny mental or psychological

disorder. ...” Id.

App. 28

perform a major life activity that the average person in the

general population can perform; or (2) significantly re-

stricted as to the condition, manner, or duration under

which an individual can perform a particular major life

activity as compared to the condition, manner, or duration

under which the average person in the general population

can perform that same major life activity. 29 C.F.R.

§ 1630.2(j) (1) (i)-(ii). The regulations set forth several

factors a court should consider when determining whether

an individual is substantially limited in a major life

activity: the nature and severity of the impairment; the

duration or expected duration of the impairment; and the

permanent or long term impact, or the expected perma-

nent or long term impact of or resulting from the impair-

ment. Id. § 1630.2(j) (2) (i)-(iii).

Plaintiff asserts that his sleep apnea substantially

limited his ability to sleep and, consequently, concentrate

and learn while he was a medical student.” For purposes

of this opinion, the court assumes that each of these

functions is a “major life activity” as contemplated by the

ADA. See Heisler v. Metro. Council, 339 F.3d 622, 628 (8th

Cir. 2003) (holding that sleeping and concentrating are

major life activities); Swanson v. Univ. of Cincinnati, 268

F.3d 307, 316 (6th Cir. 2001) (sleeping); 28 C.F.R. § 35.104

(learning). Thus, the court mut determine whether Plain-

tiff’'s sleep apnea substantially limited his a to

perform any of these activities.

* More precisely, he contends that the sleep apnea prevented him

from “attaining REM level of sleep” and, thus, caused him to experience

the effects of severe sleep deprivation, such as an inability to concen-

trate and learn while at school. Plaintiff's Response at 30. He also

avers that the medication he took to control the problem caused him to

“drift off at unexpected times.” Jd.

App. 29

Plaintiff first contends the sleep apnea substantially

limited his ability to sleep. The evidence in the record does

not support this contention. Plaintiff testified in his

affidavit that, at the beginning of his Pediatrics clerkship,

he became aware that he was not functioning normally.”

Specifically, he had a low energy level and “excessive

somnolence” during the daytime.” He sought help from

Fallon, who subsequently referred him to Dr. Perez-

Guerra, a pulmonologist.” During his evaluation, Dr.

Perez-Guerra asked Plaintiff about his sleep patterns.

Plaintiff replied that he only slept about four hours each

weekday night because he had to study late at night.” Dr.

Perez-Guerra suggested to Plaintiff that he sleep more

during the weekdays and leave a larger portion of his

studying for the weekends.” Plaintiff rejected this idea,

telling Dr. Perez-Guerra it was not a viable option because

his weekends were spent taking care of “personal matters

not related to school,” such as “cleaning my house, clean-

ing my clothes and folding them, and various other essen-

tial matters that required time to complete.” He explained

to Dr. Perez-Guerra that, although he “did do substantial

[school] work on the weekends,” he could not allocate

additional time to this task.”

On August 28, 1998, Fallon noted in a memorandum

that she had spoken with Dr. Perez-Guerra, and that he

“ Goodwill Aff. at 3.

"2

oe

" Id. at 5.

* Id.

” Id.

” Id.

App. 30

told her Plaintiff had either no sleep apnea or only a

trivial amount of sleep apnea.” He also informed her that

Plaintiff probably had narcolepsy and that his differential

diagnosis at that point would be sleep deprivation syn-

drome.” Dr. Perez-Guerra recommended that Plaintiff

sleep seven to eight hours per night for the next three

weeks and then undergo a follow-up sleep study.” If

abnormal at that time, he would be treated for narco-

lepsy.” In a memorandum to her file, Fallon wrote, “In

light of this finding, I feel very strongly that Mr. Goodwill

should be encouraged to take a leave of absence to evalu-

ate these medical problems.” Later that same day, Fallon

suggested to Plaintiff in person that he take a medical

leave of absence to help him overcome his problem.”

In early September 1998, Plaintiff was granted a

medical leave of absence so that he could resolve his

medical problem. On September 23, 1998, after the three

weeks of strict rest prescribed by Dr. Perez-Guerra, Plain-

tiff submitted a request to return to his clinical studies.”

Fallon met with him Plaintiff to discuss his return as well

as the results of his sleep study.” According to Fallon,

* Fallon Memorandum to File dated August 26, 1998, Docket

Entry No. 58, Exhibit 21; see also Deposition of Derrick Goodwill,

Docket Entry No. 56, Exhibit E (“Goodwill Depo.”) at 36:16-17.

™ Fallon Memorandum to File dated August 26, 1998, Docket

Entry No. 58, Exhibit 21.

* Id.

“ Id.

an,

* Fallon Memorandum to File dated August 28, 1998, Docket

Entry No. 58, Exhibit 20.

” Fallon Aff. { 12.

* Id.

App. 31

Plaintiff’s sleep study did not show narcolepsy, but rather

was consistent with sleep deprivation syndrome.” She

recommended to Plaintiff that he alter his sleep habits so

he could sleep for longer periods of time during weekday

nights. Plaintiff again rejected the idea, explaining that

he had to study late on weekday nights because he took

care of personal business on weekends.” Despite Plain-

tiff’s intransigence on this point, Fallon testified that

“[blecause Mr. Goodwill stated that he was feeling much

better rested, and because his physician confirmed he was

doing much better, I cleared him to return to his stud-

i es.”

With the above evidence in mind, the court finds

Plaintiff has failed to show that sleep apnea substantially

limited his ability to sleep. First, the evidence reveals that

Plaintiff had, at most, only a trivial amount of sleep

apnea. Indeed, Dr. Perez-Guerra, his treating physician,

did not pursue a diagnosis of sleep apnea, and instead

focused on narcolepsy and sleep deprivation syndrome as

possible causes of Plaintiff’s problem of falling asleep

during the daytime.

Second, Plaintiff has not shown he was unable to sleep

or was otherwise significantly restricted in the condition,

manner, or duration of his ability to sleep as compared to

the average person in the general population. Cf. Pack v.

Kmart Corp., 166 F.3d 1300, 1306 (10th Cir. 1999) (“While

wt

100 Id.

103 Id.

® Id. Plaintiff confirmed that his condition improved after he

began to get more sleep. Goodwill Dope. at 39:14-19.

App. 32

the evidence showed Pack had episodes of sleep disruption

and/or waking without feeling rested during 1994 and

January 1995, there is no indication that her sleep prob-

lems were severe, long term, or had a permanent impact”).

Instead, Plaintiff’s failure to get enough sleep was of his

own doing; he readily admitted that he chose to study late

into the night, thus sacrificing sleep, rather than set aside

more time to study on the weekend. The evidence also

reveals that Plaintiff experienced his-problem only over a

short period of time. Indeed, once Plaintiff was able to

sleep for eight hours per night over a period of three

weeks, his alleged sleep difficulty and concomitant day-

time exhaustion apparently disappeared. Moreover, there

is also a dearth of evidence that the sleep apnea had a

long-term impact on Plaintiff’s health or ability to func-

tion. Once he returned from his leave of absence, Plaintiff

resumed his clerkship rotations without any further

problems. Plaintiff testified that he never even took any

medication for a sleeping disorder.” Instead, Dr. Perez-

Guerra merely told him to continue taking his asthma

medication, to get an adequate amount of sleep, and to

lose some weight.”

Plaintiff next claims his sleep apnea substantially

limited his ability to concentrate and learn as a medical

student. Again, Plaintiff has failed to produce any evi-

dence of such. The only thing Plaintiff has shown is that

he chose to stay up late at night studying and that this

resulted in feeling tired during the day. Although the

record indicates Plaintiff often feli asleep during his

*® See Goodwill Depo. at 34:3-4.

™ Td. at 35:15-19.

App. 33

lectures and clinical rotations, he offers nothing more than

speculation that sleep apnea caused the problem. This, of

course, is not sufficient to withstand summary judgment.

TIG Ins., 276 F.3d at 759 (stating that unsubstantiated

assertions are not enough to raise a material fact issue for

trial). Consequently, he has not made the requisite show-

ing that he had a disability, i.e, that a physical or mental

impairment substantially limited his ability to concentrate

or learn as compared to the general population.

However, even if Plaintiff did not have an impairment

that substantially limited one or more major life activities,

he may still be entitled to protection under the ADA if he

was “regarded as having such an-impairment.” 28 C.F.R.

§ 35.104. “A plaintiff has a ‘regarded as’ disability if he (1)

has an impairment that is not substantially limiting but

which the employer perceives as substantially limiting, (2)

has an impairment that is substantially limiting only

because of the attitudes of others, or (3) has no impair-

ment but is perceived by the employer as having a sub-

stantially limiting impairment.” Waldrip, 235 F.3d at 657.

Plaintiff invokes the third option, contending that

even if he did not have an impairment that substantially

limited a major life activity, Defendants perceived him as

having one.” In support of this contention, he claims that

upon observing his symptoms and being told of his disabil-

ity, Defendants treated him differently from others who

did not have the disability, and also failed to reasonably

accommodate him. There is no support in the record for

either contention. First, Plaintiff has not provided any

competent summary judgment evidence that Defendants

** Plaintiff's Response at 27-28.

App. 34

treated other medical students more favorably. With

nothing more than Plaintiff’s mere speculation about

Defendants’ intent, no fact issue can be raised on this

point.

Second, it is plain that Defendants accommodated

Plaintiff in a reasonable manner after suspecting that he

may have had a medical problem that affected his clinical

performance. After Plaintiff complained to Fallon about

feeling fatigued, she took the affirmative step of referring

him to Dr. Perez-Guerra for a consultation. When Dr.

Perez-Guerra recommended that Plaintiff get eight hours

of sleep per night for three straight weeks, Fallon wrote

Michael L. Friedland, M.D., Vice-President for Health

Affairs and Dean of Medicine, requesting that Plaintiff be

given a medical leave of absence to help him resolve the

existing problem. In her memorandum to Dr. Friedland,

Fallon stated:

While academic difficulty is not a reason per se

for a leave of absence, there is a strong possibil-

ity that his difficulties could be related to a

medical condition and this needs to be more

clearly defined. In addition, it would be ex-

tremely difficult to assure increased rest while

working on a difficult clinical clerkship.

The Office of Student Affairs is very supportive of

Mr. Goodwill’s request for a medical leave of ab-

sence for up to one year. Mr. Goodwill obviously

desires to return to his clinical duties as quickly

as possible, which we would also support as long

** Memorandum from Fallon-to Friedland, Docket Entry No. 58,

Exhibit 20.

App. 35 =

[as] he has been cleared by his physician to do

so.

After the three-week test period was completed and Dr.

Perez-Guerra cleared Plaintiff to resume his clinical

studies at the College of Medicine, Fallon immediately

reinstated him.”

In addition to the utter lack of evidence that Fallon

failed to accommodate Plaintiff, there is no evidence

demonstrating that the College of Medicine failed in this

responsibility.” Indeed, Plaintiff admitted that he never

specifically asked the College of Medicine to provide him

with any accommodations upon his return to the medical

school.” The Student Handbook clearly required him to do

so.” Plaintiff’s claim that Defendants failed to reasonably

accommodate him is not supported in the record.

In conclusion, the court finds that Plaintiff cannot

make out a prima facie case of disability discrimination

because he has not come forth with any evidence showing

he had a “disability” within the meaning of Title II of the

ADA. As a result, Defendants’ motion for summary judg-

ment should be granted on Plaintiff’s ADA claim.

wage |

™ Fallon Aff. J 12.

Plaintiff has not shown any evidence that Defendants Green or

McCallum were even aware of his medical problem, much less that they

failed to reasonably accommodate his condition.

“° Goodwill Depo. at 38:24-39:5.

‘* See June 1998 Student Handbook, Docket Entry No. 56, Exhibit

D-3 at 11 (“If the candidate does require accommodation, the accommo-

dation must be specifically stated in writing.”).

App. 36

C. State Law Claims Against the Individual De-

fendants

Plaintiff next asserts state law claims against the

individual Defendants for intentional infliction of emo-

tional distress, civil conspiracy, and breach of fiduciary

duty. Green, Fallon, and McCallum seek official immunity

from these claims.

Under Texas law, government officials are granted

immunity from claims that arise from (1) the performance

of discretionary duties (2) within the scope of their author-

ity (3) provided the actions are taken in good faith. Univ.

of Houston. v. Clark, 38 S.W.3d 578, 580 (Tex. 2000);

Kassen v. Hatlev, 887 S.W.2d 4, 9 (Tex. 1994); City of

Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994).

To obtain summary judgment on this ground, the Defen-

dants must prove conclusively each element of the af-

firmative defense. Clark, 38 S.W.3d at 580.

An action taken by a public official is “discretionary” if

it requires personal deliberation, decision, and judgment;

conversely, an action that only requires an official to obey

orders or perform a duty over which he has no choice is

ministerial. Chambers, 883 S.W.2d at 653-54. A public

official acts “within the scope of his authority” if he dis-

charges the duties generally assigned to him. Jd. at 658.

With regard to the third element, the court measures good

faith against a standard of objective reasonableness

without regard to the official’s subjective state of mind. Id.

at 656. The critical issue is “whether a reasonably prudent

official, under similar circumstances, could have believed

that his conduct was justified based on the information he

possessed when the conduct occurred.” Ballantyne v.

Champion Builders, Inc., 2004 WL 1533950, No. 02-0260,

App. 37

at *9 (Tex. July 9, 2004); see also Clark, 38 S.W.3d at 584;

Chambers, 883 S.W.2d at 656.

1. Green

The evidence in the record shows Green developed a

remediation plan after Plaintiff failed the Internal Medi-

cine clerkship and also changed Plaintiff’s grade from an

“F” to an “IP” after he determined Plaintiff was not given

sufficient feedback from his preceptors during the clerk-

ship. These actions required Green to exercise discretion

in determining what course of action to take regarding

Plaintiff’s academic status. Further, Green took these

actions within the scope of his authority as clerkship

coordinator of the Internal Medicine clerkship and faculty

member of the College of Medicine.”

With regard to the third element, the court finds that

Green acted in good faith when he required Plaintiff to

retake the clerkship. Pursuant to school policy, if a student

fails a clerkship, the department determines whether

remediation is appropriate and then makes a recommen-

dation to the SPC."* Green clearly abided by this policy by

- presenting a remediation plan to the SPC that called for

Plaintiff to retake the inpatient portion of the clerkship.

Given that Plaintiff did not exhibit the skills necessary to

™ See Affidavit of Jacob Benjamin Green III, M.D., Docket Entry

No. 56, Exhibit G 9 2 (“All actions I took related to assessing the

academic performance and progress of Plaintiff Derrick Goodwill were

taken in my capacity as a faculty member of the Texas A&M University

College of Medicine and the Texas A&M University System Health

Science Center College of Medicine.”).

“8 June 1998 Student Handbook, Docket Entry No. 56, Exhibit D-3

at 14.

App. 38

pass the Internal Medicine clerkship, Green’s action was

clearly justified under the circumstances and was, there-

fore, taken in good faith.

Plaintiff also claims that Green acted in bad faith

when by initially refusing to change Plaintiff’s grade.

Plaintiff claims that he informed Green of the procedural

defect in his grade in November 1998, and that Green

refused to change the grade at this time, submitted a

grade of “F” to the SPC, and changed the grade to “IP”

only after the SPC placed him on probation.'* Notwith-

standing Plaintiff’s subjective belief that Green acted in

bad faith by not changing his grade quicker, the court

believes he met the requisite standard for showing good

faith. The evidence indicates that, in reaching a decision to

fail Plaintiff, Green relied on the clinical evaluations of the

attending physicians in the clerkship. It also shows that

Green told Plaintiff to voice his complaints with these

physicians. The court believes that a reasonably prudent

official in the same situation could have believed this

action was justified under the circumstances.”

2. Fallon

Plaintiff alleges Fallon mishandled his grade appeal

process by disallowing him to have his chosen representa-

tive present during grade appeal proceedings, refusing to

™ Goodwill Aff. at.8-9.

™* Moreover, the record shows that Green did investigate Plain-

tiffs claim that he did not receive adequate feedback. Green Aff. 7 5-6.

Green determined the claim had merit and, accordingly, changed

Plaintiff's grade from an “F” to an “IP” because he felt Plaintiff “de-

served the chance to complete the inpatient rotation again with proper

guidance.” Id. { 6.

App. 39

hear witnesses on his behalf, neglecting to investigate the

actions of his preceptors that caused him to receive failing

grades in two clerkships, and providing false information

about him to the SPC.” The court finds that Fallon used

discretion in discharging her duties as Assistant Dean of

Student Affairs. The evidence in the record indicates she

used judgment in advising Plaintiff to take a medical leave

of absence and counseling Plaintiff about the grade appeal

process. With regard to the second element, Fallon stated

in her affidavit that all actions regarding Plaintiff were

taken in her official capacity as a faculty member of the

College of Medicine.

With regard to the final element, the court is per-

suaded that Fallon took all actions regarding Plaintiff in

good faith. The record shows that she followed school

policy in connection with the grade appeals proceedings.

Contrary to Plaintiff’s exhortations, Fallon was not

required to advocate on his be at the meetings; in-

stead, her role was merely that of a counselor. Nor was

Fallon under an obligation to allow Plaintiff to bring a

representative to the meetings, as Plaintiff suggests. In

sum, the court finds that a rational official in Fallon’s

position, who had knowledge of the applicable school

policies, could believe that these actions were justified.

38. McCallum

Plaintiff alleges that McCallum wrongfully denied

him a due process hearing and appeal of the decisions

upholding his failing clerkship grades, acquiesced in the

“* Id. J 28.

™ Fallon Aff. { 33.

App. 40

wrongful actions of Green and Fallon, generally failed to

follow school policy, and appointed or permitted Fallon to

appoint individuals to the SPC whose conduct formed the

basis of his complaint."” As with Green and Fallon, the

court easily concludes that McCallum’s actions concerning

Plaintiff were discretionary and within the scope of his

authority as Interim Dean of the College of Medicine. The

evidence reveals McCallum used judgment in permitting

Plaintiff additional time to appeal his failing grades and

dismissal, granting Plaintiff a right to appeal his grades,

affirming the appeals committees’ decisions upholding

those grades, and upholding the SPC’s recommendation

that Plaintiff be dismissed for academic reasons.” As to

the second element, McCallum testified that all actions he

took relating to Plaintiff were in his official capacity as a

member of the College of Medicine faculty.”

Finally, the evidence shows that all of McCallum’s

actions were taken in good faith. His action in affirming

Plaintiff’s failing grades was based on a review of the

clinical evaluations, which revealed Plaintiff had severe

shortcomings in the clinical setting. Further, nothing in

the record indicates that Plaintiff informed McCallum that

he believed he was given failing grades due to discrimina-

tery animus. With nothing more to go on beside the clini-

cal evaluations, it is clear McCallum’s actions in upholding |

the grades was justified.

™ Id. J 30.

McCallum Aff. ¥{ 3, 8-9, 11.

” Affidavit of Roderick E. McCallum, Ph.D., Docket Entry No. 56,

Exhibit F.

2 App. 41

The court reaches the same conclusion as _ to

McCallum’s action in affirming the SPC’s recommendation

of dismissal. In his letter to McCallum requesting an

appeal of his dismissal, Plaintiff alleged that a fundamen-

tal misrepresentation of official policy was evident and

that significant procedural defects took place in the

appeals proceedings.’ McCallum determined that Plain-

tiff’s claims did not have merit and, accordingly, dismissed

him from the College of Medicine. Again, McCallum based

his decision on the fact that Plaintiff failed two clerkships

while on academic probation. Under school policy, this was

sufficient for dismissal.” The court finds that a rational

official who possessed the same information about Plain-

tiff’s performance in the clerkships could easily come to

the conclusion that dismissal was the appropriate course

of action. Thus, McCallum actions in this regard were

taken in good faith.

The individual Defendants have each proven their

affirmative defense of official immunity. Thus, Defendants’

motion for summary judgment should be granted on

Plaintiff ’s state law claims.

V. Conclusion

For the reasons set forth above, the court RECOM-

MENDS that Plaintiff’s Motion to Strike be GRANTED

IN PART and DENIED IN PART and that Defendants’

Motion for Summary Judgment be GRANTED.

™ Letter Appealing Dismissal dated December 9, 1999, Docl=t

Entry No. 56, Exhibit D-6.

% June 1998 Student Handbook, Docket Entry No. 56, Exhibit D-3

at 15.

App. 42

The Clerk shall send copies of this Memorandum and

Recommendation to the respective parties, who have ten

- days from the receipt thereof to file written objections

thereto pursuant to General Order 2002-13. Failure to file

written objections within this time period shall bar an

aggrieved party from attacking the factual findings and

legal conclusions on appeal.

The original of any written objections shall be filed

with the United States District Clerk, PO. Box 61010,

Houston, Texas, 77208. Copies of such objections shall be

mailed to opposing parties and to the chambers of the

undersigned, 515 Rusk, Suite 7019, Houston, Texas,

77002.

SIGNED at Houston, Texas, this 29th day of October,

2004.

Is/ N ohnson

NANCY K. JOHNSON

UNITED STATES

MAGISTRATE JUDGE

App. 43

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

DERRICK GOODWILL,

Plaintiff,

v CIVIL NO. H-02-0088

TEXAS A&M UNIVERSITY

MEDICAL SCHOOL,

RODERICK E. MCCALLUM,

KATHLEEN WILLIAMS,

BEN GREEN and JOHN DOE,

Defendants.

Or OO? OP 1 1) 6) 4)

‘

FINAL JUDGMENT

(Filed Nov. 24, 2004)

In conformity with the Order Adopting Magistrate

Judge’s Memorandum and Recommendation signed on

November 24, 2004, it is hereby ADJUDGED that Plain-

tiff take nothing against the Defendants.

Ali relief not granted herein is DENIED. The parties

shall bear their own costs.

THIS IS A FINAL JUDGMENT.

The Clerk will provide a copy of this judgment to all

counsel.

App. 44

SIGNED this 24th day of November, 2004, in Hous-

ton, Texas.

/s/ Sim Lake

SIM LAKE

UNITED STATES

DISTRICT JUDGE

App. 45

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-20987

DERRICK GOODWILL,

Plaintiff-Appellant,

versus

TEXAS A & M UNIVERSITY MEDICAL SCHOOL,

RODERICK E. MCCALLUM, KATHLEEN

WILLIAMS, BEN GREEN, and JOHN DOE,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC no. 4:02-CV-88

(ON PETITION FOR REHEARING)

(Filed Apr. 8, 2005)

Before WIENER, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing is

DENIED.

ENTERED FOR THE COURT:

/s/ [Illegi ible]

UNITED STATES CIRCUIT JUDGE

App. 46

FRAP 3. APPEAL AS OF

RIGHT - HOW TAKEN

* a *

(c) Contents of the Notice of Appeal.

(1) The notice of appeal must:

(A) specify the party or parties taking the appeal by

naming each one in the caption or body of the notice, but

an attorney representing more than one party may de-

scribe those parties with such terms as “all plaintiffs,” “the

defendants,” “the plaintiffs A, B et al.,” or “all defendants

except X”;

(B) designate the judgment, order, or part thereof

being appealed; and

(C) name the court to which the appeal is taken.

* * *

FRAP 4. APPEAL AS OF

RIGHT - WHEN TAKEN

(a) Appeal in a Civil Case.

(1) Time for Filing a Notice of Appeal.

(A) In a civil case, except as provided in Rules

4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal required

by Rule 3 must be filed with the district clerk within 30

days after the judgment or order appealed from is entered. -

* * *

(2) Filing Before Entry of Judgment. A notice of

appeal filed after the court announces a decision or order —

App. 47

but before the entry of the judgment or order — is treated

as filed on the date of and after the entry.

* * *

App. 48

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION |

DERRICK GOODWILL

Plaintiff

Vv

TEXAS A&M UNIVERSITY

MEDICAL SCHOOL,

RODERICK E, MCCALLUM,

KATHLEEN WILLIAMS,

BEN GREEN, AND

JOHN DOE

Defendants

CIVIL ACTION

NO. H-02-0088

MO WM OO? Or rN

PLAINTIFF’S NOTICE OF APPEAL

(Filed Nov. 26, 2004)

Plaintiff, Derrick Goodwill, serves notice that he wishes to

appeal the Court’s Judgment on Defendants’ Motion for

Summary Judgment in the above-referenced cause,

entered October 29, 2004. Plaintiff hereby appeals to the

United States Court of Appeals for the 5th Circuit.

Respectfully submitted,

Law Offices of Gary L. Bledsoe & Associates

By: /s/ Gary L. Bledsoe

Gary L. Bledsoe

State Bar No.: 02476500

316 West 12th Street, Suite 307

Austin, Texas 78701

Telephone:-(512) 322-9992

Facsimile: (512) 322-0840

App. 49

Certificate of Service

I hereby certify that a true and correct copy of the at-

tached document has been sent this day via First Class

U.S. mail to opposing counsel at the address indicated

below.

Peter Plotts, Assistant Attorney General

Office of the Attorney General

General Litigation Division

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

November 22, 2004

/s/ Walter C. Muse, Jr.

Walter C. Muse, Jr.