The opinion of the court was delivered by: ROBERT W. GETTLEMAN
Plaintiff brings this diversity jurisdiction breach of contract action alleging that defendant dismissed her from its School of Medical Technology (the "School"), without cause, in breach of defendant's policies and procedures. Before the Court is defendant's motion for summary judgment, along with supporting and opposing memoranda, affidavits and exhibits. For the reasons stated below, the Court grants defendant's motion.
Plaintiff was a student of the School's seven week phlebotomy program (the "Program") in 1988.
Plaintiff participated in every aspect of the Program: classroom lectures, written examinations and clinical training. Throughout the Program there were five exams including the final exam. The final exam was administered on March 4, 1988. Plaintiff took each exam, repeating the fourth exam, and received the following scores: 72.9% on the first exam; 72.3% on the second exam; 62% on the third exam; 40% on her first attempt of the fourth exam; 54.3% on her second attempt of the fourth exam; and 89% on her final exam.
Plaintiff received a memorandum dated March 7, 1988 (the "Memo"), from two Program instructors, Sandra Spencer and Audrey Claussen ("Claussen"), informing her that, "due to the low scores you have achieved on the four exams that have been given to date we will not be able to give you a passing grade at the end of the normal seven week training period." Plaintiff was placed on probation, and notified that she would have to achieve a passing grade in five areas. The Memo stated:
During your probation you will need to achieve a passing grade in the following areas to graduate.
1 You will be given the fourth test a third time, you must have a score no lower than 80% to continue this program.
2 Your phlebotomy skill must show a marked improvement as observed by your instructor Audrey Claussen in your next week in the outpatient area.
3 Communication between you and your patients should strive to consider the patients needs more than the present level. Clear concise instructions must be given for your patients to understand each procedure.
4 Be aware of your surroundings, handle patients GENTLY. Older patients sometimes cannot move thier [sic] arms as freely as younger patients can.
5 Listen to your teachers carefully and let them explain procedures to you before you ask questions.
Plaintiff re-took the fourth exam for the third time on March 9, 1988, and received a 76.5%. She participated in rounds with two phlebotomists, Robin Siegler ("Siegler") and Jean Holt ("Holt"), on March 10th and March 11th, and received negative feedback from both phlebotomists. On March 17, 1988, plaintiff was expelled from the Program based on her performance, both prior to and during her probationary period.
Under Fed.R.Civ.P. 56(c), a court should grant a summary judgement motion if "there is no genuine issue of material fact and. . . the moving party is entitled to judgment as a matter of law." The burden is on the moving party to identify portions of the pleadings, answers to interrogatories, and affidavits which demonstrate an absence of a genuine issue of material fact. Id.; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). The burden then shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(c). When reviewing a summary judgement motion, the court ...