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Doe v. Board of Regents of University of Nebraska

Supreme Court of Nebraska

April 24, 2014

JOHN DOE, APPELLANT,
v.
BOARD OF REGENTS OF THE UNIVERSITY OF NEBRASKA ET AL., APPELLEES

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Appeal from the District Court for Douglas County: SHELLY R. STRATMAN, Judge.

John Doe, Pro se.

Amy L. Longo and Lawrence K. Sheehan, of Ellick, Jones, Buelt, Blazek & Longo, L.L.P., for appellees.

HEAVICAN, C.J., CONNOLLY, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

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[287 Neb. 992] McCormack, J.

I. NATURE OF CASE

The plaintiff, known as John Doe, brought suit under title II of the Americans with Disabilities Act of 1990 (ADA)[1] and § 504 of the Rehabilitation Act of 1973 (Rehabilitation Act)[2] against the defendants. Doe, representing himself pro se, alleged that the University of Nebraska Medical Center (UNMC), the Board of Regents of the University of Nebraska, and several members of UNMC's staff, in their official and individual capacities, discriminated against him while he was a medical student at UNMC, because of his chronic and recurrent depressive disorder disability. The district court dismissed the staff in their individual capacities and granted summary judgment in favor of the remaining defendants. Doe appeals.

II. BACKGROUND

1. Placed "On Review" for Poor Performance Freshman Year at UNMC

Doe started medical school in August 2003. He was placed " On Review" shortly thereafter for weak performance in structure and development of the human body core. According to the Scholastic Evaluation Committee (SEC) guidelines, a student is placed " On Review" when the student's performance is marginal during the course of the academic year. This may

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include, but not be limited to, performance on a single examination (exam) or performance in a core or clerkship. Doe was again informed that he was " On Review" at the end of the first semester of his first year, for receiving a grade of " Marginal" in structure and development of the human body core.

In letters informing Doe of his " On Review" status, Doe was referred to various support services of the academic success [287 Neb. 993] program and of student counseling, as well as a tutoring program through the office of admissions and students. He was also encouraged to speak with Dr. Jeffrey W. Hill, the associate dean for admissions and students.

2. Rescheduled Exam After Fiance Troubles

At the end of his freshman year of medical school, Doe asked to reschedule his comprehensive first-year exam. Doe's wedding had been scheduled to take place around that time. Doe asked to delay the comprehensive exam, because he decided to postpone the wedding. Doe met with Hill and explained that he was having " apprehensions about getting married," which were causing Doe " stress." Doe explained to Hill that his fiance would not wait until after the exam to work on issues they were having in their relationship and that this was " very difficult, stressful, and draining to me both emotionally and physically." That difficulty was combined with Doe's " anticipatory stress" of his decision to tell his fiance he wanted to postpone the wedding--after her parents had already spent " a lot of money" on the event. Doe thought this " taxing" situation would " affect [his] performance on the comprehensive exam." Doe was allowed to postpone the exam, which he later passed.

3. More Exams Rescheduled Sophomore Year

The comprehensive first-year exam was the first of several exams that Doe postponed until a later date. Dr. Gerald Moore, the senior associate dean for academic affairs, stated that he met with Doe on two or three occasions during Doe's first 2 years of medical school " because of his frequent delay of exams."

According to Moore, when he asked Doe whether he was experiencing any problems, Doe stated only that he was having problems with his girlfriend. Doe never told Moore he had a disability. Doe claimed that when he postponed an exam twice in October 2004, he told Moore he was " depressed" and having trouble sleeping and concentrating.

[287 Neb. 994] Doe went to see a psychiatrist, whom Doe saw only once. Doe obtained prescriptions for antianxiety and antidepressant medications. The psychiatrist diagnosed Doe with adjustment disorder with depressed mood, but Doe did not convey this diagnosis to UNMC.

By December 16, 2004, Moore informed Doe that his rescheduling of exams " was not professional behavior for a future physician" and that he would not be allowed to delay future exams.

Around that time, Doe's ex-fiance began dating someone else, which caused Doe further distress. In January 2005, Doe's grandmother died.

4. Diagnosed With Major Depressive Disorder

In January 2005, Doe saw a different psychiatrist, Dr. Rafael Tatay, who diagnosed Doe with chronic and recurrent major depressive disorder. Tatay recommended that Doe engage in psychotherapy and prescribed antidepressants and antianxiety medications. Tatay explained that other than Doe vaguely mentioning in their first meeting that he could not concentrate, " [m]edical school was not an issue" for Doe: " [T]he main issue of this

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person was with the interpersonal relationships, with depression." Tatay saw Doe in January, May, and August 2005. After that, Tatay did not see Doe until 2007.

Doe also spoke occasionally with Dr. David Carver, who is a psychologist and the director of the counseling and student development center at UNMC. Carver averred that he met with Doe in May 2004, April 2005, and September 2006. In these meetings, Doe discussed the breakup with his fiance and his academic performance. At one meeting, Doe mentioned to Carver that he saw a psychiatrist and a doctor over the course of the breakup with his fiance and the death of his grandmother. Carver averred that he was never aware, however, that Doe had been given a psychiatric diagnosis of major depression. Doe testified he thought he had told Carver about " being depressed."

[287 Neb. 995] 5. Doe Did Not Claim Disability at Office of Services for Students With Disabilities

Determinations at UNMC of whether a student has a disability and what accommodations may be required are made by the office of services for students with disabilities, a subdivision of the counseling and student development center at UNMC. The center informs incoming medical students about these services during orientation, and this information is also included in the student handbook and on the UNMC Web site.

The policies of the office of services for students with disabilities are posted on its Web site, in the student handbook, and in the flyer in the orientation materials provided to all incoming enrolled students. The policies state that in order to be eligible for academic or physical accommodations, a student must contact the student counseling center and fill out an application for disability accommodation well in advance of the time for which the accommodation is needed. Underlined and in boldface, the policies state that faculty will not be expected to provide accommodation without a letter from the student counseling center verifying eligibility for accommodations and setting forth an accommodation plan.

It is undisputed that during his enrollment at UNMC, Doe never contacted the office of services for students with disabilities and never requested accommodations through the procedures set forth by that office.

Doe explained that while he was in medical school, he did not think of his major depressive disorder as a " disability" and did not consider himself " disabled." When, after this lawsuit was filed, Doe was asked what type of accommodations he requires because of his disability, Doe stated that that would depend on the time and the situation.

6. Doe Granted Leave of Absence for Wedding-Related Issues

On January 21, 2005, Doe requested a leave of absence from the medical school. Doe requested permission to postpone his neurology/ophthalmology/psychiatry core to the summer before his junior year. Doe explained that he had been " trying [287 Neb. 996] to find resolution" with canceling his wedding and that his grandmother had recently passed away.

The SEC granted Doe a leave of absence. The original letter granting leave stated it would be from January 21 to February 6, 2005, but it appears that the leave lasted the entirety of Doe's second semester. The SEC guidelines provide for a leave of absence " under exceptional circumstances," " for academic, medical, and personal reasons." Under the guidelines, a student will be required to return from a leave of absence no later than the beginning of the next academic year.

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In the letter communicating the leave of absence to Doe, Hill informed Doe that he could postpone the neurology/ ophthalmology/psychiatry core, but would not be allowed to postpone any other exams for the remainder of the academic year. Hill stated in the letter that Doe had postponed exams several times in the previous semester and that " this cannot be tolerated in the future." Doe later asserted that these statements " suggested to me that I would no longer be accommodated for my depression/disability when I returned [from] my [leave of absence]."

Hill stated that the SEC did not grant the requested leave of absence because of alleged major depressive disorder or any other alleged disability. In fact, Hill averred that at no point in his interactions with Doe did Doe inform him that he had major depressive disorder or any other disability.

Doe testified in his deposition that he talked to Hill about " being depressed." Doe had stated in a prior affidavit that he told Hill of his diagnosis of major depressive disorder and told Hill that he was taking medications.

Doe testified that he met with the SEC during his leave of absence and that it " seem[ed] like [his depression] did come up." But Doe could not ultimately remember what was or was not said.

7. Doe Completed Sophomore Year With Specially Arranged Summer Core

The SEC determined, after much discussion, to grant Doe's request to take the neurology/ophthalmology/psychiatry core [287 Neb. 997] in the summer before the start of his junior year. Hill explained that, typically, a student taking a leave of absence would have to come back and repeat the missed core at the same time the following year. A student cannot take the required " USMLE Step 1" exam until that missed core has been completed, however, and, under the SEC guidelines, the USMLE Step 1 exam must be taken before entering the junior-year clerkships. According to Hill, the physician who taught the core agreed to teach it to Doe over the summer, " so we could kind of keep him with his class and keep things moving along and so he didn't have to wait a whole year to take that core." Hill said that such a special summer arrangement was something UNMC had never done before, that it was inconvenient for the teaching physician, and that it was something that UNMC was not going to do again. Doe thus successfully completed his sophomore year the summer following his leave of absence.

8. Doe Signed Junior-Year Professionalism Statement

Before entering his junior year, Doe, as required of all medical students before entering their junior year, signed a " Professionalism Statement." The Professionalism Statement explained that any deviations of professional behavior are noted by attendings and lecturers, during class or in a clinical setting, and that faculty are required to report such deviations to the associate dean for admissions and students. In addition, the statement explained that unprofessional behavior will put the student at risk of failing clerkships or having the grade lowered.

9. During Junior Year Doe Failed Two Clerkships and Received Marginal in One Clerkship

During his junior year, Doe had pediatrics, internal medicine, obstetrics and gynecology (Ob/Gyn), family medicine, and psychiatry clerkships. He received grades of pass or better in his psychiatry and family medicine clerkships. But Doe received a grade of fail in both his internal medicine and his [287 Neb. 998] Ob/Gyn clerkships.

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He received a grade of marginal in his pediatrics clerkship.

(a) Ob/Gyn Clerkship

Dr. Sonja R. Kinney, director of the Ob/Gyn clerkship, sent Doe an e-mail on January 25, 2006, advising him of unprofessional conduct observed by faculty and resident physicians, in the hopes that he could improve his clinical performance. That e-mail stated that " [r]esidents noted your playing internet poker on labor and delivery, attendings noted leaving during clinic time to get concert tickets, and staff noted your absence this morning at teaching conferences." Kinney stated that Doe's performance did not improve following his receipt of this e-mail.

Doe received a scaled percentile score of 64 on the Ob/ Gyn " shelf" exam, which was the 12th percentile for his class. Anything less than 10th percentile is considered failure of the shelf exam, so this was considered a pass. But students receive a grade of fail for the clerkship if they do not meet minimum criteria for the clinical component of the grade, regardless of the shelf exam score. Doe received a fail for his clinical component.

The comments on his grade sheet stated that Doe " was notably absent from or late to required activities and frequently did not complete tasks as assigned." He had difficulty presenting patients and fielding questions, and he had a below-average knowledge base. The comments further stated that after being notified of professionalism issues, Doe continued to have incidents, including weak performance during service, failing to show up for a session without excuse or explanation, sometimes being abrupt with patients, and having a knowledge base that was " 'greatly lacking.'" The comments stated that Doe was frequently absent or late to clinical rounds and didactic teaching sessions, left a clinic early to pick up concert tickets without explanation, played games on his computer during downtime on labor and delivery, did not go home and change when asked to do so because of casual attire, and generally " 'gave impression that he did not seem interested in seeing patients or learning from faculty.'" The comments further [287 Neb. 999] stated, " Overall he showed a pattern of lack of concern for his professional role . . . ."

After receiving his grade, Doe discussed it with Kinney. Doe generally denied that most of the events referred to in the grade sheet or the previous e-mail referred to him--he asserted he had been confused with a different student. Doe admitted, however, that he had left the clinic room to get concert tickets in the midst of taking a patient history. Doe explained, " '[W]ell you know, I have a life outside the hospital.'"

Kinney averred that throughout the course of monitoring Doe's clinical performance on the Ob/Gyn clinical service, she " treated John Doe in the same way I would treat any student having comparable performance problems." Indeed, according to Kinney,

[a]t no time while John Doe was on the Ob/Gyn clerkship through the appeal of his grade did I perceive that John Doe had a disability. John Doe never notified me of any facts suggesting he was disabled, and I was never informed by John Doe of ...

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