This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Jose H. Tori,
Filed December 26, 2006
Hennepin County District Court
File No. EM 04-6584
Richard T. Wylie,
Mark B. Rotenberg, General
Counsel, Brian J. Slovut, Associate General Counsel,
Considered and decided by Ross, Presiding Judge; Willis, Judge; and Crippen, Judge.*
U N P U B L I S H E D O P I N I O N
Appellant sued respondent university for alleged violations of the Americans with Disabilities Act, 42 U.S.C. §§ 12101-213 (2000); the Rehabilitation Act, 29 U.S.C. § 794 (2000); and the Minnesota Human Rights Act, Minn. Stat. §§ 363A.01-.40 (2004); claiming that respondent denied his requests for a reasonable accommodation of his disabilities and dismissed him because of his disabilities or in retaliation for his requests for a reasonable accommodation. Appellant challenges the district court’s grant of summary judgment to respondent. Because we conclude that there are no genuine issues of material fact precluding summary judgment and that the district court correctly applied the law, we affirm.
Appellant Jose Tori graduated from the University of Minnesota Medical School and was enrolled in the University’s combined family-practice and psychiatry residency training program from 1997 until June 2002. Tori has been diagnosed with attention-deficit-hyperactivity disorder (ADHD) and dyslexia. He claims that because of his disabilities, “he cannot sit and concentrate in a controlled, academic setting for very long.”
Tori began psychiatry rotations in the spring of 1998. In March 1998, the psychiatry department implemented a course-attendance policy that requires residents to attend 75% of the lectures in each course. The department did not excuse Tori from this requirement. In March 1998, Tori received a memorandum outlining the attendance policy. In February 1999 and again in June 2000, Tori received notices that he had missed an unacceptable number of lectures. In July 2000, Tori received a letter stating that “certain residency program requirements [had] not been met,” most notably, required attendance at lectures. The letter advised Tori that if he required accommodation of a disability, he should contact the University’s disability-services office and that until the residency-program administrators received direction from that office regarding a specific need for an accommodation, Tori was required to attend lectures. The letter also instructed that in order for Tori to “make up” missed lectures, according to the attendance policy, he must submit a plan for doing so before the date provided. Tori failed to submit a plan.
On several occasions, Tori requested accommodation of his disabilities. He initially met with a specialist in the University’s disability-services office in June 2000. Tori provided the specialist with a letter from Tori’s psychiatrist documenting his disabilities, and Tori and the specialist began to discuss potential accommodation. In August 2000, Tori requested, through his psychiatrist, to be allowed to tape-record lectures and not to be required to sit for long periods of time. In November 2000, Tori requested to be excused from attending lectures and to be allowed instead to learn the material through independent reading. In February 2001, Tori requested that the University accommodate his disabilities further by allowing him to substitute for lectures four to five weekly psychoanalytic sessions and by providing “multiple psychotherapy supervisors who could compensate for issues not covered in his own psychoanalysis [and] [t]wo or three highly experienced psychiatrists” to cover case materials from the classes Tori is unable to attend and to role play as patients to replicate the interactive component of some classes. Approximately a week later, the disability-services specialist contacted Tori with a proposal for an accommodation that included allowing Tori to tape-record lectures and move around the room during lectures. When Tori persisted with his requests for a more extensive accommodation, she explained that his requests were unreasonable.
University learned in April 2001 that a complaint was pending against Tori with
the Minnesota Board of Medical Ethics, alleging that Tori had engaged in a
sexual relationship with a former psychiatric patient, which violates the
American Medical Association’s Principles of Medical Ethics with Annotations
Especially Applicable to Psychiatry (the ethics principles). The University investigated the allegations
and reviewed Tori’s entire residency record.
As a result of that review, the University informed Tori that seven
disciplinary charges would be brought against him. Two of the charges were later dismissed. The remaining charges were: (1) engaging in a
sexual relationship with a patient; (2) disregard of the welfare of three
female peers; (3) failure to attend required lectures after being warned in
writing of attendance deficiencies; (4) failure to appear for two
emergency-room shifts and communicating unprofessionally and disrespectfully with
a chief resident; and (5) improperly punishing a patient by withdrawing
medications. A two-hour meeting was held
December 6, 2001, Tori met with a scholastic-standing committee from the
family-practice department and with representatives of the psychiatry
department to respond to a letter and subsequent report detailing the result of
the September 4 meeting. The group
present at the December 6 meeting voted unanimously to recommend Tori’s dismissal
from the combined residency program. The
chairs of the family-practice and psychiatry departments then made the final decision
to dismiss Tori, concluding that Tori’s actions “represent a pattern of
inappropriate and unprofessional conduct by [Tori] while in the training
program.” Tori challenged his dismissal,
and a hearing was held before a
Tori filed suit against the University, alleging that the University violated the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-213 (2000), the Rehabilitation Act, 29 U.S.C. § 794 (2000), and the Minnesota Human Rights Act (MHRA), Minn. Stat. §§ 363A.01-.40 (2004), when it failed to provide a reasonable accommodation of his disabilities and discriminatorily dismissed him because of his disabilities or in retaliation for his accommodation requests. The University moved for summary judgment, and the district court granted the University’s motion, concluding that the University had offered Tori a reasonable accommodation sufficient to comply with the ADA’s and the MHRA’s accommodation requirements and that there was no evidence that Tori’s dismissal was motivated by his disability status or in retaliation for his accommodation requests. The district court reasoned, “Without evidence of an ADA-prohibited retaliatory motive, it cannot be established that these non-academic bases for dismissal were based on Tori’s ADA- and MHRA-protected disabilities. Therefore, the University’s dismissal of Tori as a resident was valid and appropriate on all grounds.” This appeal follows.
D E C I S I O N
reviewing a district court’s decision to grant summary judgment, this court asks
two questions: (1) whether there are any genuine issues of material fact and
(2) whether the district court erred in its application of the law. State
by Cooper v. French, 460 N.W.2d 2, 4 (
Tori asserted claims against the University
under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-213
(2000); the Rehabilitation Act, 29 U.S.C. § 794 (2000); and the Minnesota
Human Rights Act (MHRA), Minn. Stat. §§ 363A.01-.40 (2004). Because the statutes use similar language and
promote the same purpose,
I of the
Tori claims that genuine issues of material fact exist regarding whether the University discriminated against him because of his disabilities when it (1) failed to reasonably accommodate his disabilities; (2) dismissed him from the residency program because of his disabilities; and (3) dismissed him from the residency program in retaliation for his requests for a reasonable accommodation.
claims first that the University discriminated against him because it failed to
reasonably accommodate his disabilities.
To establish a prima facie failure-to-accommodate claim, Tori must offer
evidence that shows (1) that he is a qualified person with a disability;
(2) that the University knew of his disability; and (3) that the
University failed to make a reasonable accommodation of his disability.
Although the University does not dispute that Tori is disabled under the applicable statutes, it asserts that because Tori is not a “qualified person,” he cannot satisfy the first prong of a prima facie case. Tori argues that he is qualified because he “met the minimal, objective qualifications for the job”—he was accepted into the program, succeeded in the family-practice portion of the program academically, and received favorable clinical evaluations. The University does not dispute that Tori met the necessary prerequisites to be accepted into the residency program, but it argues that Tori was not performing the “essential functions” of being a resident at the time he was dismissed and was therefore not qualified to be a resident. The University contends that the “basic and essential responsibilities” of a resident include those outlined in the residency agreement that Tori signed, which requires that residents conduct themselves ethically and provide safe and effective care for patients. The University argues that there is no genuine dispute for a jury to decide here because Tori had clear obligations as a resident and clearly failed to fulfill those obligations. And because the issues that made Tori unqualified were unrelated to his disabilities, the University argues, no reasonable accommodation of his disabilities could have made Tori qualified.
We are persuaded by the University’s argument and are inclined to defer to its judgment, as an academic institution, regarding the basic requirements of its residency program. But the “essential functions” set forth in the residency agreement are too subjective to serve as the basis for a qualification determination without raising genuine issues of material fact. See Legrand v. Trs. of the Univ. of Ark. at Pine Bluff, 821 F.2d 478, 481 (8th Cir. 1987) (determining that deeming the plaintiff unqualified because he was “unreliable” involved too subjective a standard to preclude establishment of a prima facie case). Because we reach the ultimate conclusion that a grant of summary judgment to the University was appropriate, we will assume that Tori was a “qualified” disabled person and proceed to the remaining elements of his failure-to-accommodate claim.
There is no dispute regarding the fact that Tori requested an accommodation of his disabilities, which put the University on notice of Tori’s disabilities, satisfying the second prong of Tori’s prima facie case. There is also no dispute about the fact that the University was willing to allow Tori to tape-record lectures and to move around during lectures to accommodate his disabilities but was not willing to exempt him from the requirements of the course-attendance policy. The University is required to provide only a reasonable accommodation, and it did, so Tori’s prima facie case fails on the third prong.
it was required to reasonably accommodate Tori’s disabilities, the University
was not required to provide the precise accommodation that Tori requested. Hankins
v. The Gap, Inc., 84 F.3d 797, 800-01 (6th Cir. 1996). The district court correctly concluded that
the University’s offer to allow Tori to tape-record lectures and to move around
during lectures fulfilled its accommodation obligation. Public universities are not required to make accommodations
that “substantially alter the nature of the program” that they operate. Amir
Tori maintains that the University was statutorily required to accommodate him further by waiving its attendance policy and making his requested accommodation. Tori asserts (1) that the district court erred in assuming that the attendance policy was “written in stone”; (2) that the district court failed to consider the fact that the University presented no evidence that the requirements of the National Resident Review Committee, on which the attendance policy was based, would preclude the accommodation that Tori requested; and (3) that the district court failed to consider that the attendance policy permitted alternative arrangements with faculty, including independent study.
arguments are unpersuasive and are unsupported by authority. First, the attendance policy may not have
been “written in stone,” but it was written, and it was distributed in a
memorandum to all residents, including Tori.
The University was not required to make exceptions to an evenly enforced
academic policy to accommodate Tori’s disabilities. Courts generally defer to the judgment of colleges
and universities regarding academic matters.
Amir, 184 F.3d at 1028. A university “is not required by the
Rehabilitation Act or the
Regarding Tori’s second argument, he fails to explain why it matters whether the National Resident Review Committee would authorize Tori’s attendance-policy exemption. Whether the psychiatry department was required to implement the attendance policy is irrelevant; it did implement the policy based on its own judgment regarding the importance of class attendance, and there is no evidence that it enforced the policy in a discriminatory manner.
Finally, the alternative arrangements authorized in the attendance policy are authorized only as a means for “making up” classes, and they are suggested only as a possibility: “If a resident misses 3 or more sessions in a 12 week course . . . the resident will be required to talk with the course leader about the possibility of ‘making up’ the missed sessions. The ‘make up’ work could take many different forms,” including independent reading. Again, we defer to the academic judgment of the University in its decision to maintain such alternative arrangements as an exception to the rule requiring lecture attendance.
Because there is no genuine issue of material fact regarding the accommodation that the University offered to provide and that accommodation was reasonable, summary judgment was appropriate on Tori’s failure-to-accommodate claim.
Tori next claims that the University
discriminated against him because it dismissed him from the residency program
because of his disabilities. In the
absence of direct evidence of discrimination, discriminatory-dismissal claims
are analyzed under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct.
1817, 1824-25 (1973). Mershon, 442 F.3d at 1074 (utilizing the
McDonnell Douglas framework to review
a grant of summary judgment). In the
first step, the plaintiff must establish a prima facie case of
discrimination. Christopher v. Adam’s Mark Hotels, 137 F.3d 1069, 1071 (8th Cir.
1998) (applying McDonnell Douglas to
The University does not dispute that Tori is disabled, and, as discussed earlier, we will assume that Tori is qualified. But Tori fails to provide any evidence that raises an inference of discrimination, which precludes the establishment of a prima facie case. Tori attempts to establish “animus” on the part of the University by referring to the fact that the University continued to insist that Tori attend lectures and considered placing Tori on probation in February 2001 because of his failure to attend lectures and to attend supervised psychotherapy sessions. He also points to comments made by certain faculty members regarding the fact that they had never had a student “question or challenge” the curriculum so working with Tori had “felt like a struggle,” and regarding their perception of Tori’s “boundary violations” and his having a “sense of entitlement,” which a faculty member described as “feeling like you don’t need to go to an emergency room shift or actually the lecture schedule . . . not showing up when it is required to show up.” This “evidence” of animus is unrelated to Tori’s disabilities and is consistent with the reasons that the University gave Tori for his dismissal. Tori fails to raise even a slight inference of discrimination, so he cannot establish a prima facie case of discriminatory dismissal.
Even if Tori could establish a prima facie case, the University sets forth several legitimate, nondiscriminatory reasons for Tori’s dismissal, and Tori fails to offer evidence that casts sufficient doubt on the University’s asserted reasons or sustains his ultimate burden of proving that disability discrimination was the actual reason for his dismissal.
The University’s first asserted nondiscriminatory reason for Tori’s dismissal is his unethical sexual relationship with a female psychiatry patient. Tori’s residency agreement demands that the resident conduct himself “ethically,” and that the resident care for patients in a “safe, effective, and compassionate” manner, and the ethics principles specifically prohibit sexual activity with patients. Tori does not dispute the facts underlying this disciplinary charge but argues that the University could not have based its dismissal decision on his relationship with a former patient, and that this proffered reason was therefore a pretext for discrimination because the University made the decision to dismiss him before it learned of the relationship.
There is evidence that a residency-program director informed the disability-services specialist on April 3, 2001, the date on the disability-services specialist’s notes, that Tori “was no longer in the program [due] to some ethical issues.” The University did not contact Tori until April 6 to inquire about the complaint that had been filed against him with the Minnesota Board of Medical Practice, and it was not until April 11 that the University learned that the complaint arose out of Tori’s sexual relationship with a former patient. Although there appears to be substantial evidence supporting the University’s assertion that the apparent timing discrepancy is due to a clerical error by the disability-services specialist, we must view the evidence in the light most favorable to Tori and conclude that there is a genuine issue of material fact regarding whether Tori’s sexual relationship with a patient was an actual motivation for his dismissal. But this factual issue does not warrant reversal of summary judgment because the University had other legitimate, nondiscriminatory reasons for dismissing Tori about which there are no issues of disputed fact.
Tori does not dispute the fact that he failed to attend a significant number of psychiatry-department lectures, which is the University’s second articulated nondiscriminatory reason for his dismissal, but he argues that his attendance failures cannot be among the University’s legitimate reasons for dismissing him from the residency program because those attendance failures were caused by the University’s failure to accommodate his disabilities. Because we concluded earlier that the University offered to reasonably accommodate Tori’s disabilities, we also conclude that it was permissible for the University to base Tori’s dismissal in part on his consistent failure to attend lectures.
Similarly, because we concluded earlier that the University offered to reasonably accommodate Tori’s disabilities, we are not persuaded by Tori’s assertion that the University precipitatedthe events on which Tori’s dismissal was based when it failed to accommodate his disabilities and allow him to study the course material independently. He asserts that his “problems during residency did not begin until the psychiatry program administration refused to accommodate his well documented disabilities,” and he asserts that the reason he did not know that a sexual relationship with a former patient is unethical is that he was unable to attend the ethics course because of his disabilities, and the University did not accommodate his disabilities and allow him to learn the course material independently. But Tori admittedly had a copy of the ethics principles, so the University did not prevent him from learning the ethics materials independently. And even if an accommodation would have excused Tori’s failure to attend lectures and would have allowed Tori to learn the ethics principle regarding sexual relationships with patients, which, arguably, Tori should have familiarized himself with even without having taken a course, Tori fails to explain how his requested accommodation would have prevented the other events on which his dismissal was based.
The University’s next articulated nondiscriminatory reason for Tori’s dismissal is that Tori interacted inappropriately with female peers. Tori argues these allegations “were put to rest over two years before they were resurrected as bases for [his] dismissal.” He does not challenge the allegations themselves but instead argues that they are too remote in time from his dismissal to have contributed to it. And Tori argues that the allegations that he failed to appear for emergency-room shifts and communicated unprofessionally with a chief resident were groundless because he “did appear for work at the ER” and his “only infraction was to be sharp with the chief resident who did not inform [him] that his schedule had changed.” The University points out that Tori does not actually challenge the facts involved, but, at most, he challenges the seriousness of the charges.
Regarding the allegation that Tori
inappropriately punished a patient by withdrawing pain medication, Tori argues
that he withdrew only a sleeping aid and nicotine aids from the patient in
question, that he did so for the safety of the patient, and that his actions
were taken with the approval of the attending physician. Further, Tori argues, this allegation was
also too remote in time from his dismissal to have been an actual reason for
it. The issue is not whether the
University was necessarily correct as to each of the offenses but whether the
University believed that Tori had
committed the offenses when it used them as bases for his dismissal. Wilking
Even if Tori had established a prima facie case, which he has not, he fails to offer sufficient evidence to show that four of the University’s five legitimate, nondiscriminatory reasons for his dismissal were pretextual, and he fails to satisfy the third step of McDonnell Douglas and point to any evidence, let alone “substantial evidence,” that discrimination because of his disabilities was the true motivation for his dismissal. See Christopher, 137 F.3dat 1072; DLH, Inc., 566 N.W.2d at 70 (noting that a genuine issue for trial must be established by “substantial evidence”).
Tori claims that the University dismissed him from the residency program in
retaliation for his requests for a reasonable accommodation. A prima facie case for retaliatory dismissal
consists of: “(1) statutorily-protected
conduct by the employee; (2) adverse employment action by the employer;
and (3) a causal connection between the two.” Hubbard
v. United Press Int’l, Inc., 330 N.W.2d 428, 444 (
There is no dispute that Tori engaged in statutorily protected conduct when he requested an accommodation for his disabilities, and there is also no dispute that Tori’s dismissal from the residency program was an adverse employment action. But Tori cannot establish the third prong of his prima facie case for retaliatory dismissal because there is simply no evidence that would allow a reasonable jury to find a causal connection between his requests for an accommodation and his dismissal. The fact that he was in the process of negotiating an accommodation with the University when he was dismissed is not sufficient—a mere temporal connection alone does not raise an inference of discrimination. See Mershon, 442 F.3d at 1075 (noting that short proximity, in this case, supports university’s action). And even if Tori could assert facts that raise an inference of retaliation and establish a prima facie case of retaliatory dismissal, he cannot show that the University’s articulated nondiscriminatory reasons were pretextual, and he cannot satisfy his ultimate burden of showing that retaliation was the actual reason for his dismissal, as discussed above. His retaliatory-dismissal claim fails for the same reasons that his discriminatory-dismissal claim fails.
genuine issue of material fact exists when “the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving party.” DLH,
Inc., 566 N.W.2d at 69 (quoting Matsushita
Elec. Indus. Co., 475
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.