This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1202

 

Lincoln R. Redden,

Appellant,

 

vs.

 

Minneapolis Community and Technical College, et al.,

Respondents.

 

Filed April 20, 2004

Affirmed

Huspeni, Judge*

 

 

Hennepin County District Court

File No. 02-016370

 

John J. Curi, 2249 East 38th Street, Minneapolis, MN 55407 (for appellant)

 

Mike Hatch, Attorney General, Scott R. Goings, Assistant Attorney General, 1200 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101 (for respondents)

 

            Considered and decided by Toussaint, Chief Judge, Halbrooks, Judge, and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N

HUSPENI, Judge

            In challenging the district court’s grant of summary judgment to respondents, appellant alleges that he was discriminated against on the basis of his disability and improperly required to complete coursework he had previously completed.  Because the district court correctly determined that there were no genuine issues of material fact in this matter, we affirm the grant of summary judgment to respondents.

FACTS

            Appellant Lincoln Redden entered the Associate Degree Nursing program (ADN) at respondent Minneapolis Community and Technical College (MCTC) in the fall of 2000.  At the time of application, Redden completed a health form, and at the start of his second year, he signed the health form.  The college’s ADN Student Guide instructed students on requests for accommodations for disabilities and informed students that they must contact the Office for Students with Disabilities (OSD) if accommodations were necessary.  At no time before May 9, 2002, did Redden make any request for accommodations, nor did he ever contact the OSD.  Prior to and during his coursework for the ADN, Redden worked full-time nights at Abbott Northwestern Hospital as a night circulating coordinator.

The two-year ADN program consisted of four semesters, during which a student would take 30 general education credits and four consecutive eight-credit nursing courses, Nursing 1101, 1102, 2201, and 2202.  Each nursing class had a theory and practicum component; the practicum was graded pass/fail, and the theory component required a passing score of 75%.  Redden received grades of 83.8% in 1101, 77.5% in 1102, and 74.8% in 2201.[1] 

During his third semester, he received a letter from an instructor stating that she had observed him falling asleep at clinicals, and warning him that he must get adequate sleep before those classes.  Although clinicals were held after Redden worked the night shift at a hospital, he denied having fallen asleep and blamed his behavior on a migraine headache.  He also mentioned to the instructor that he had a sleep disorder.

Later that semester, Redden received a letter from another instructor, Nancy Miller, informing him that he was not maintaining a passing grade in her class and that he should come in to talk with her.  She wrote a second letter in March 2002 (during Redden’s last semester in school) stating that his grade in her class was inadequate and would need to be raised to 75% to pass the course and graduate.  The record is silent as to Redden’s response to these communications, or as to any mention of a disability needing accommodation.

On May 9, 2002, two business days before the final exam prior to graduation from the nursing program, Miller suggested that Redden go to the OSD.  He did so, and met with OSD employee Kim Korte.  He brought with him a May 8, 2002 letter from Joan M.K. Fox, M.D., addressed “to whom it may concern.”  The letter stated that Fox had been managing Redden’s narcolepsy over the past year, had been adjusting his medications to “improve his ability to maintain alertness under sedentary conditions,” that Redden had reported “some ongoing difficulties with drowsiness during sedentary activities that have affected his performance in nursing school,” and that “this disorder should not affect his productivity or performance in his chosen career.”  The letter did not specify whether or what kind of an accommodation was necessary from MCTC, but concluded, “[a]ny courtesy you could extend to Mr. Redden in this regard would be appreciated.”  At the May 9 meeting with Korte, Redden signed a release to enable Korte to obtain additional information from Dr. Fox.

Both Korte and Miller wrote memos after their individual discussions with Redden, and both noted in those memos that Redden had refused special accommodations because he wanted to be treated like the other students.  Korte also indicated that she talked to Redden about extended time to take the test or a private room in which to take it if one were available,[2] but that Redden did not think a private room would help because it might make him drowsy.  Korte also noted that Redden wished to have her destroy his OSD file. 

Redden disputes some of the alleged statements of Miller and Korte, and their characterization of his responses.  Primarily, he disputes the representation that he did not request a private room as an accommodation, and states that he specifically requested a designated testing room so that he could take his test in private and would be able to get up and move about to fend off drowsiness.

By May 10, Korte had spoken with the Department of Human Rights, with a colleague, and with Miller about Redden’s circumstances.  She had not heard back from Dr. Fox at that point.  Korte informed Redden that there was no private room available, but although he would be taking the test in a room with other students, he could have extended time to complete it.  Korte offered, alternatively, that Redden could contact Miller to decide in consultation with her an appropriate time and location for the test.  Redden declined the offer of extended time, but accepted a later offer by Miller to take the exam in a room that was better lit than the regular testing room.  There were to be about 15 other students present at the time of testing.

Redden took the final exam on Monday, May 13.  When the students were warned that only four and one-half minutes remained in the exam, Redden had answered only 70 out of 100 questions; 13 questions remained unanswered when time had expired.  Redden’s request for an additional ten minutes was denied by Miller.  Redden failed the test.

Redden’s appeal for readmission to the ADN program was granted by the MCTC Progression Committee shortly after he had failed the exam.  Readmission was conditioned upon Redden agreeing to take certain courses in directed study before he would be permitted to retake the course he had failed.

Several days after being granted readmission to the nursing program, Redden wrote to MCTC President, respondent Phillip Davis, explaining that his narcolepsy did not affect his clinical work because it is non-sedentary, but did affect his “ability to perform well and/or stay focused when taking nursing exams.”  Redden raised the issue of retaking and then averaging prior exams, asked if he could retake his final exam, and also stated that although he had been told that a private room or extended time to take the test might aid him, “[i]n the end, I decided that I didn’t want to be different.”  He also explained that he had “never not finished a test in [his] life.”  Finally, he indicated that he considered the nursing committee’s conditions for readmission “cruel, unusual, poorly thought out, and wrong.”  He objected to retaking two classes when he had failed only one.

Subsequently, the committee modified their requirements for readmission.  To prepare Redden during the eight-month gap between his failing exam and his retake of the failed class, the committee agreed to pay an instructor to tailor a directed study to Redden’s weaknesses, and to permit Redden to take “evaluative assignments graded on a pass/fail basis.”[3]   

Redden refused to comply with the requirements for readmission, and brought this action seeking, among other forms of relief, to take his final exam with reasonable accommodations.  Both parties moved for summary judgment, which was granted to respondents.

D E C I S I O N

      On appeal from summary judgment, this court asks whether there are any genuine issues of material fact and whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  This court must view the evidence in the light most favorable to the party against whom judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  A reviewing court is not bound by and need not give deference to a district court’s determination of a question of law.  Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984).

1.         MHRA Violation

Redden’s complaint alleged a violation of the Minnesota Human Rights Act (MHRA) and the Americans with Disabilities Act (ADA).  The district court concluded that the ADA claim was barred by the State of Minnesota’s sovereign immunity, and Redden raises only MHRA claims on appeal.[4]  Statutory interpretation is a question of law subject to de novo review.  Hince v. O’Keefe, 632 N.W.2d 577, 582 (Minn. 2001).

A showing of an unfair discriminatory practice by an educational institution under the MHRA requires:  (1) that the claimant is a qualified individual with a disability, (2) that the claimant was excluded from participation in or denied the benefits of a public entity’s services, programs, or activities, and (3) that such treatment was by reason of his disability.  Moubry v. Indep. Sch. Dist. 696, 9 F. Supp. 2d 1086, 1109 (D. Minn. 1998); see Wayne II v. MasterShield, Inc., 597 N.W.2d 917, 921 (Minn. App. 1999) (stating that Minnesota courts give strong weight to federal court interpretations of Title VII claims because of substantial similarity with MHRA), review denied (Minn. Oct. 21, 1999). 

A disabled person is any person who (1) has a physical, sensory, or mental impairment which materially limits one or more major life activities, (2) has a record of such an impairment, or (3) is regarded as having such an impairment.  Minn. Stat. § 363.01, subd. 13 (2002) (renumbered at Minn. Stat. § 363A.01, subd. 12 (Supp. 2003)).

We note initially that despite Redden’s claim that he is a qualified individual with a disability, our review of the record indicates that the district court appeared to doubt whether narcolepsy did substantially limit one of Redden’s major life activities.  We doubt the presence of a substantial limitation also, but shall assume, without deciding, as did the district court, that for the purposes of the summary judgment motion, Redden is a qualified individual with a disability. 

The MHRA would require the MCTC to extend a bona fide offer of a reasonable accommodation to Redden if he was a disabled person.  See Breiland v. Advance Circuits, Inc., 976 F. Supp. 858, 864 (D. Minn. 1997) (indicating that MHRA claims are interpreted consistently with claims made under ADA).  Redden does not dispute that MCTC offered the accommodation of extended testing time of time and one-half and that he rejected the offer.  He argues, however, that the only reasonable accommodation would have included a private testing room.  Redden’s argument is unsupported factually and under Minnesota law.

An interactive process is used to make the determination of what is a reasonable accommodation.  Id.  The process should identify “the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.”  Id. (quoting 29 C.F.R. § 1630.2(o)(3)).  There is no indication in the record that at any time during his enrollment at MCTC prior to May 9, 2002, Redden notified any of the appropriate OSD personnel of his alleged disability or requested reasonable accommodations from the college.  Instead, upon the suggestion of an instructor, Redden initiated the process to determine a reasonable accommodation only two business days before the final exam, and then with only a doctor’s letter indicating that he was a medicated narcoleptic.  The letter contained nothing regarding the needs of narcoleptics generally, and more importantly, nothing regarding any needs of Redden specifically.  There is also uncontroverted evidence in Redden’s letter to the president that Redden himself terminated the very process that was implemented to address what constituted a reasonable accommodation.  Redden declared that he “didn’t want to be different.” 

When summary judgment has been granted, the appellate court must assure that no genuine issue of material fact exists.  We see no triable issue on the question of reasonable accommodation.  While Redden disputes certain recollections of Miller and Korte, we accept that Redden demanded a private room, but even in that circumstance and in light of the record as a whole, there is no evidence that he would, in fact, have accepted that offer.  More importantly, there is no evidence to indicate that a private room was the only accommodation that would have been considered to be reasonable for the impairment.  Significantly, there is absolutely no evidence that Korte or Miller acted in bad faith in working with Redden on formulating an accommodation.  Cf. Heise v. Genuine Parts Co., 900 F. Supp. 1137, 1154 (D. Minn. 1995) (no summary judgment where appellant presented evidence from which jury could conclude that employer was unwilling to consider reasonable possible accommodations).  To the contrary, given the extremely short time between the first notification of an alleged disability requiring a need for reasonable accommodations, and the deadline for implementation of those accommodations, the efforts of the MCTC personnel were commendable, and were reasonable as a matter of law.   

Failure of proof on an essential element is grounds for summary judgment.  Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2553 (1986).  Therefore, summary judgment was appropriately granted on Redden’s MHRA claim.

2.         Breach of Contract, Deceptive Practices, Consumer Fraud, Promissory Estoppel:  MCTC’s Authority to Determine Readmission Criteria

 

Redden argues that the MCTC Progression Committee violated statutes, breached its contract, and committed a fraud by its decision that he must pass certain evaluations and then retake Nursing 2202.  Essentially, Redden claims that MCTC had no authority to impose the readmission requirements that it did.   We disagree.

A.        Educational Malpractice

In Alsides v. Brown Inst., Ltd., 592 N.W.2d 468 (Minn. App. 1999), this court rejected on policy grounds a claim for educational malpractice.  The court limited actions against an educational institution to those alleging a failure to perform a specific promise made to the student and rejected those actions that required a court to inquire “into the nuances of educational processes and theories.”  Id. at 473 (citing Ryan v. Univ. of N.C. Hosps., 494 S.E.2d 789, 791 (1998)).  Addressing Redden’s complaint that the content of the committee’s readmission decision is improper would, we believe, require that this court venture into the very arena prohibited by Alsides.  Readmission was not a guaranteed right.  It was relief to be granted or denied at the discretion of the committee.  It follows that formulation of conditions upon which readmission might be granted are not only also within the discretion of the committee, but are clear examples of nuances of educational processes and theories.  We do not, however, conclude our analysis of the Alsides rationale at this point, but continue to examine that rationale to determine whether any of Redden’s claims remain actionable.

B.        Breach of Contract

A student handbook or bulletin does not form a unilateral contract between the university and the student, requiring strict compliance with every provision.  Rollins v. Cardinal Strich Univ., 626 N.W.2d 464, 471 (Minn. App. 2001).  Nevertheless, if MCTC failed to perform specific promises it made to Redden (promises not involving inquiry into the nuances of educational processes and theories), a viable claim may exist.  See Alsides, 592 N.W.2d at 473.  Redden fails, however, to allege specific promises made and breached.

MCTC did not promise that Redden could simply retake the exam he had failed; it did not promise him that he would be granted readmission; it did not compel him to do anything.  Redden failed his nursing course and was, therefore, not eligible to graduate or to continue his studies at MCTC.  Understandably, he sought readmission.  But there is nothing in the record to suggest that the committee was required to readmit him.  Nonetheless, it did, subject to certain conditions.  Clearly, Redden was free to reject those readmission conditions, and accept that his nursing education at MCTC had come to an end. 

Redden’s assertion that the committee’s readmission conditions somehow violated MCTC policies is unsupported.  Nothing in any of the MCTC publications prohibit  the use of directed study as a condition of readmission to the nursing program.  While Redden argues that he had no notice that he could be forced to retake a previously passed course, he had ample notice that the college monitored student performance and determined qualifications for readmission and for graduation.  The MCTC clearly articulated to its student body that failure of one nursing course disqualified a student from proceeding except by an appeal for readmission, that readmission was not guaranteed, and finally that a directed study would be required for readmission.  Under these provisions, the MCTC could fashion a student’s readmission plan by considering the individual’s needs and those educational processes cannot be challenged under Alsides.  Therefore, the district court properly dismissed Redden’s breach of contract claim.

C.        Fraud, Deceptive Trade Practices, Promissory Estoppel

Redden argues that the same acts and omissions alleged in his breach of contract claim apply to the fraud, deceptive trade practices, and promissory estoppel causes of action.  Because his allegations establish neither a breached contract, a breached policy, nor a false representation, and because these allegations, like his breach of contract claim, would involve inquiry into educational processes, these claims were also properly dismissed.  Therefore, the district court correctly entered judgment for respondents on these claims.

D.        Quasi-Judicial Decision Reviewable only by Writ of Certiorari

As an alternative basis for its dismissal of Redden’s breach of contract and promissory estoppel claims, the district court determined that it lacked jurisdiction to consider those claims.  Whether the court has subject-matter jurisdiction is a question of law, which this court reviews de novo.  Shaw v. Bd. of Regents of Univ. of Minn., 594 N.W.2d 187, 190 (Minn. App. 1999), review denied (Minn. July 28, 1999).

Unless a plaintiff has a cause of action granted by statute, a writ of certiorari is the exclusive method of review of a quasi-judicial decision made by an administrative body that does not have statewide jurisdiction.  Willis v. County of Sherburne, 555 N.W.2d 277, 282 (Minn. 1996).  Review of quasi-judicial decisions of executive bodies is limited due to the principle of separation of powers.  Maye v. Univ. of Minn., 615 N.W.2d 383, 385 (Minn. App. 2000) (university’s decision not to promote protection services officer to director position was quasi-judicial). 

There is no dispute that MCTC is part of the Minnesota State Colleges and Universities (MnSCU) system, and its Progression Committee is the body charged with hearing appeals for readmission.  See Minn. Stat. §§ 136F.01, subd. 4, .05, .06, .10 (2002) (setting out MCTC as MnSCU member, its governance and mission).  The committee’s decision is quasi-judicial if there was (1) investigation into a disputed claim and weighing of evidentiary facts; (2) application of those facts to a prescribed standard; and (3) a binding decision regarding the disputed claim.  Handicraft Block Ltd. P’ship. v. City of Minneapolis, 611 N.W.2d 16, 20 (Minn. 2000).  There is no requirement that the decision be made by a board or committee and there is no requirement that the hearing create a record.  Maye, 615 N.W.2d at 386.  The key items are that the decision-makers determined the facts, applied them to a standard, and then exercised their discretion to make the decision.  See id.

Here, the committee held a hearing at which Redden appeared before five members of the faculty.  The committee considered Redden’s written appeal papers, his oral presentation, and his entire academic record.  It applied Associate Degree Nursing program policies and readmission criteria to the facts it found.  Factors used in making an appeal for readmission decision include:  (1) student’s academic performance and ability; (2) clinical performance, specifically including safety; (3) situational stressors; and (4) a student’s pattern of performance.  The committee then made a decision that was binding on Redden. 

Because the separation-of-powers doctrine justifies limited judicial review, and because the action of the committee here is the type of quasi-judicial and discretionary decision that should not be scrutinized by the courts, the district court correctly concluded that it had no jurisdiction over Redden’s non-statutory claims.  The exclusive method of review of the breach of contract and promissory estoppel claims was by writ of certiorari to this court.

3.         Minn. Stat. § 136F.32 (2002) (Count VI)

Redden asserts a cause of action under Minn. Stat. § 136F.32, but fails to explain how the statute entitles him to relief from the directed study.  Minn. Stat. ch. 136F (2002) generally covers MnSCU and section 136F.32 simply states that the colleges “shall offer students the option of pursuing diplomas and certificates in each technical education program, unless the board determines that a degree is the only acceptable credential for career entry in a specific field.”  Minn. Stat. § 136F.32, subd. 2.  Courses and programs are reviewed, approved, and disapproved by the board of trustees of MnSCU.  Minn. Stat. § 136F.30. 

Redden was enrolled in and sought readmission to a two-year degree program, not a diploma or certificate program, so the statute does not affect him.  Therefore, the district court correctly entered judgment for MCTC on this cause of action, as well.

4.         Equal Protection

Redden argues that he was denied equal protection of the laws because another student with a non-passing grade was given an opportunity to progress to the next nursing course.  The district court determined that Redden and the other student were not similarly situated and that respondents had a rational basis for distinguishing between the two students. 

Because Redden does not allege that his equal protection claim involves a suspect classification or a fundamental right, the state must only show a rational basis for its decisions as to the two students.  Kolton v. County of Anoka, 645 N.W.2d 403, 411 (Minn. 2002).  MCTC sets out the specific circumstances of its treatment of the other student and Redden does not dispute those circumstances.  The other student had initiated a harassment complaint against an instructor after taking a final exam, alleging that the instructor’s conduct had affected her performance on the exam.  Contrary to Redden’s situation, the other student had been passing the course before the exam but received only a 68.75% on the final, which resulted in a semester grade of 74.2%, a non-passing D.  Following the established procedures for harassment complaints, the investigator determined that there was evidence that the instructor had proctored the other student more closely than the rest of the class and that conduct might have affected the student’s performance.  The MCTC gave the other student an incomplete and allowed her to progress to the next nursing class.  If she passed that, the school would change her incomplete to a C.

The circumstances of the student mentioned in Redden’s equal protection claim differ dramatically from those of Redden.  Because these two students were not similarly situated in all respects and the different school plans for treatment of harassment and treatment of disability claims served rational purposes, respondents did not violate Redden’s right to equal protection.

            Affirmed.

 



*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. 

[1] The 74.8% grade was rounded up to 75%; therefore, it was considered a “pass.”

[2]  Redden had also asked Korte about the possibility of averaging scores from earlier exams.  She later explained to him that this was not possible.

[3]  Under the modified requirements, Redden would still be required to enroll and pay for the redesigned direct study.

[4]  Redden notes, however, and we agree, that federal decisions under the ADA guide resolution of claims brought under MHRA.  See Kolton v. County of Anoka, 645 N.W.2d 403, 407 (Minn. 2002) (stating that federal antidiscrimination statements are guide to MHRA interpretation).