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Novak v. Board of Trustees of Southern Illinois University

United States Court of Appeals, Seventh Circuit

February 10, 2015

PATRICK NOVAK, Plaintiff-Appellant,
v.
BOARD OF TRUSTEES OF SOUTHERN ILLINOIS UNIVERSITY, et al., Defendants-Appellees

Argued December 9, 2014.

Page 967

[Copyrighted Material Omitted]

Page 968

Appeal from the United States District Court for the Southern District of Illinois. No. 3:12-cv-00007-JPG-PMF -- J. Phil Gilbert, Judge.

For Patrick Novak, Plaintiff - Appellant: Darrell Dunham, Attorney, Darrell Dunham & Associates, Carbondale, IL.

For Board of Trustees of Southern Illinois University, Lynn Smith, Marla Mallette, Sharon Shrock, Defendants - Appellees: Ian P. Cooper, Attorney, Tueth, Keeney, Cooper, Mohan & Jackstadt, St. Louis, MO.

Before POSNER, RIPPLE, and KANNE, Circuit Judges.

OPINION

Page 969

Ripple, Circuit Judge.

Patrick Novak brought this action against Southern Illinois University (" the University" ) and three of its professors, alleging that he had been terminated from the University's doctoral program in Curriculum and Instruction on the basis of his post-traumatic stress disorder, in violation of section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act. The district court granted the University's motion for summary judgment.[1] It determined that Mr. Novak had not established a prima facie case of disability discrimination and that, in any event, he had not presented sufficient evidence to show that the defendants' stated reason for terminating him from the program was a pretext for discrimination. Mr. Novak filed a timely appeal.[2] For the reasons set forth in this opinion, we agree with the district court that Mr. Novak cannot show that the reason given by the University for his dismissal was pretextual. On that ground, we affirm the judgment of the district court.

I

BACKGROUND

A.

Mr. Novak was diagnosed with post-traumatic stress disorder (" PTSD" ) in 2001. That same year, he enrolled as an undergraduate student at the University. Through its office of Disability Support Services, the University provided Mr. Novak with the accommodations that he requested throughout his undergraduate career.

In 2005, Dr. Lynn Smith recommended Mr. Novak for admission into the University's doctoral program in Curriculum and Instruction (" C& I" ). The University accepted Mr. Novak into the program. After an initial period of study, all doctoral students in the C& I program must pass a Preliminary Examination in order to continue and become a candidate for a doctoral degree. The Preliminary Examination

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consists of three segments, referred to as " Days," each of which covers a different aspect of preparation and study. Days 1 and 2 consist of timed exams, while Day 3 involves an untimed take-home assignment.

In September 2008, upon the advice of his psychologist, Mr. Novak requested and received extra time to complete the Day 1 portion of the exam because of his PTSD. He passed Day 1.

In summer 2009, Mr. Novak took Day 2 and Day 3. Dr. Smith and Dr. Marla Mallette, two of the professors serving on Mr. Novak's doctoral committee, reviewed his Day 2 and Day 3 exam answers, and gave Mr. Novak failing marks on both exams. Both professors provided reasons for failing Mr. Novak on Day 2 and Day 3 based on the content of his exam answers. Mr. Novak was not terminated from the C& I doctoral program at that time, despite the department's rule that two failures would permit dismissal.

In fall 2009, again upon the recommendation of his psychologist, Mr. Novak requested and received the following accommodations based on his PTSD: (1) an opportunity to review his failing exam results, (2) an explanation of why his responses 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, Mr. Novak passed Day 2 on his second attempt.

In spring 2010, Mr. Novak retook the Day 3 portion of the exam with the same accommodations he had requested in the fall of 2009.[3] Again, Dr. Smith and Dr. Mallette found his Day 3 answers insufficient and, accordingly, gave Mr. Novak failing marks. Both professors again gave reasons for failing Mr. Novak on Day 3 based on the content of his answers.

Mr. Novak retook Day 3 for a third time in fall 2010, again with the same accommodations that he had requested in the fall of 2009. Dr. Smith and Dr. Mallette again found his Day 3 answers insufficient and awarded failing marks. This time, however, the professors did approve part of his submission--Chapter 1--and only asked him to rewrite the other part--Chapter 2.

In January 2011, Mr. Novak took Day 3 for a fourth time, again with the accommodations that he had earlier requested, plus additional written suggestions from Dr. Mallette to help him prepare. Mr. Novak failed the assignment. Dr. Smith and Dr. Mallette again cited the content of his exam response in the Chapter 2 rewrite as their reason for failing him. Dr. Sharon Shrock, another member of Mr. Novak's doctoral committee, agreed that Mr. Novak had failed the assignment, also citing the content of his exam response. Notably, Dr. Shrock only reviewed Chapter 2 of Mr. Novak's ...


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