United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. PHIL GILBERT, District Judge.
This matter comes before the Court on the motion for summary judgment filed by defendants Board of Trustees of Southern Illinois University ("SIU"), Lynn Smith, Marla Mallette and Sharon Shrock, sued in their official capacities (Doc. 30) Plaintiff Patrick Novak has responded to the motion (Doc. 49), and the defendants have replied to that response (Doc. 57). Novak also objects (Doc. 64) to the decision of Magistrate Judge Philip M. Frazier to bar the expert reports used to support Novak's summary judgment response (Doc. 61), and the defendants have responded to that objection (Doc. 65). The defendants also seek leave to supplement their motion for summary judgment and their response to Novak's objection with a citation to a recent case (Doc. 66). Novak has not responded to that motion.
I. Summary Judgment Standard
Summary judgment must be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir. 2008); Spath, 211 F.3d at 396.
The initial summary judgment burden of production is on the moving party to show the Court that there is no reason to have a trial. Celotex, 477 U.S. at 323; Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013). Where the non-moving party carries the burden of proof at trial, the moving party may satisfy its burden of production on one of two ways. It may present evidence that affirmatively negates an essential element of the non-moving party's case, see Fed.R.Civ.P. 56(c)(1)(A), or it may point to an absence of evidence to support an essential element of the non-moving party's case without actually submitting any evidence, see Fed.R.Civ.P. 56(c)(1)(B). Celotex, 477 U.S. at 322-25; Modrowski, 712 F.3d at 1169. Where the moving party fails to meet its strict burden of proof, a court cannot enter summary judgment for the moving party even if the opposing party fails to present relevant evidence in response to the motion. Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. 1992).
In responding to a summary judgment motion, the nonmoving party may not simply rest upon the allegations contained in the pleadings but must present specific facts to show that a genuine issue of material fact exists. Celotex, 477 U.S. at 322-26; Anderson, 477 U.S. at 256-57; Modrowski, 712 F.3d at 1168. A genuine issue of material fact is not demonstrated by the mere existence of "some alleged factual dispute between the parties, " Anderson, 477 U.S. at 247, or by "some metaphysical doubt as to the material facts, " Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists only if "a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Anderson, 477 U.S. at 252.
Construed in the plaintiff's favor, the evidence and all reasonable inference that can be drawn from it establish the following relevant facts.
Novak has suffered from PTSD since around 1999. He became an undergraduate student at SIU in 2001 and notified it that he suffered from PTSD. SIU, through its office of Disability Support Services ("DSS"), provided Novak with the accommodations he requested throughout his undergraduate career. Often these accommodations were memorialized in Accommodations Agreements between Novak and DSS. Those agreements stated that Novak was responsible for notifying DSS if he needed further assistance. The defendants were aware of Novak's PTSD at all relevant times. While he was a student at SIU, Novak never behaved in a way he considered threatening.
After receiving his undergraduate degree and on defendant Smith's recommendation, Novak was admitted into the Ph.D. program in the Department of Curriculum and Instruction. In order to receive a doctoral degree, the Department Curriculum and Instruction required a student to pass a three-day Preliminary Examination ("Prelims"). Passage of Prelims was a prerequisite for allowing a student to write a doctoral dissertation which, if approved, would result in the conferring of a Ph.D. Each day of Prelims - Day 1, Day 2 and Day 3 - represented a separate portion of the exam and was graded independently. Days 1 and 2 were timed exams and Day 3 was an untimed take-home assignment. Department rules permitted a student to be dropped from the Ph.D. program if he failed any two portions of the exam.
In September 2008, upon the advice of his psychologist, Novak requested and received extra time to complete Day 1 in light of his PTSD. He passed Day 1.
In the summer of 2009, Novak took Day 2 and Day 3. Day 3 consisted of a series of five questions to be addressed in the response. Defendants Smith and Mallette, two of the professors serving on the committee to guide and oversee Novak's progress toward his dissertation, reviewed his Day 2 and Day 3 exam answers, determined they were insufficient and, accordingly, gave Novak failing marks. They both offered reasons for failing Novak on Day 2 and Day 3 based on the content of his exam answers. Novak was not terminated from the Ph.D. program at this time despite the department's rule that two failures would permit dismissal.
In the fall of 2009, again upon the request of his psychologist, Novak requested and received accommodations in light of his PTSD: (1) an opportunity to review his failing exam results, (2) an explanation of why they were insufficient, (3) extra time to complete Day 2, (4) the opportunity to meet with an instructor to prepare for retaking the exams, and (5) an opportunity to retake the exams. With these accommodations, Novak passed Day 2 on his second try.
In the spring of 2010, Novak completed Day 3 again with all the applicable accommodations he had requested in the fall of 2009. Again, Smith and Mallette found his Day 3 answers insufficient and, accordingly, gave Novak failing marks, and again, they both offered reasons for failing Novak on Day 3 based on the content of his exam answers.
Novak was allowed to take Day 3 again in the fall of 2010 with all the applicable accommodations he had requested in the fall of 2009. He fared no better on his third attempt; both Smith and Mallette again failed him, citing the content of his response, although they approved of part of his submission - Chapter 1 - and only asked him to rewrite the other part - Chapter 2.
Novak was allowed a fourth bite at the apple in January 2011, when he once again failed Day 3 after receiving all the applicable accommodations he had earlier requested plus additional written suggestions from Mallette to help him prepare. Smith and Mallette again cited the content of his exam response in the Chapter 2 rewrite as their reasons for failing him. Defendant Shrock, another member of Novak's dissertation committee, agreed, also citing the content of Novak's responses. Shrock only reviewed Chapter 2 of Novak's response, and some of her criticisms were that Novak had omitted parts that, unbeknownst to her, he had actually included in Chapter 1.
No other students for whom Smith or Shrock was a dissertation committee member had tried and failed to pass Day 3. In their review of Novak's various Day 3 submissions, Smith, Mallette and Shrock did not all cite the same reasons for failing Novak, and those reasons varied with each successive Day 3 attempt. Following his spring 2011 failure, they met privately with each other about Novak's performance and as a group with Novak to review with him their reasons for his failure.
Following Novak's repeated failure to pass Day 3, the department terminated him from the Ph.D. program in the spring of 2011. The department offered to transform Novak's doctoral studies into a master's degree but stated that if Novak chose accepted this offer, his credits would no longer be available to apply toward a doctorate degree. Novak accepted the department's offer and received a master's degree in May 2011.
Novak speculates that Smith, Mallette and Shrock used the wrong criteria - his PTSD - in evaluating his work, and takes issue with the specific flaws found in his Day 3 submissions. He also believes Smith and Mallette were applying higher standards to him than they did to other students. Novak submits written reports from two other professors opining that the decision to fail Novak was not in good faith, was discriminatory and represented a lack of or poor professional judgment. In addition, Novak believes SIU failed to provide reasonable accommodations for his disability.
Novak believes Smith's animus toward him is evident from the fact that she approved a dissertation using different criteria than she applied to Novak's Day 3 submission and that her advice to him about his Day 3 submission was not specific enough.
Novak believes Mallette's animus toward him is evident from the fact that she recommended he take an introductory course in research methodology even though he had successfully completed an advanced course in the same area, that she refused to post Novak's grade for course he had completed, and that she contacted Novak's psychiatrist to ask whether she had any reason to be afraid of Novak.
He believes Shrock's animus toward him is evidence from the fact that she did not read his first three attempts to pass Day 3 and was therefore not able to give him feedback on the earlier attempts and that she was concerned over her own safety after having an odd interaction with Novak during a private meeting.
Novak filed this suit in January 2012 alleging his termination from the Ph.D. program violated § 504 of the Rehabilitation Act of 1973 ("RA"), 29 U.S.C. § 794 (Count I), and Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12181 et seq. (Count II). The defendants ask the Court for summary judgment on the grounds that, irrespective of his disability, Novak was not qualified to continue participating in the Ph.D. program, that the defendants had a legitimate, non-pretextual reason for terminating Novak from the program, that Novak is estopped from arguing (or has waived the issue) by agreeing to apply his credits toward a master's degree instead of a Ph.D., and that no ...