November 6, 2017
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. l:14-CV-09539 -
John Robert Blakey, Judge.
Bauer, Kanne, and Rovner, Circuit Judges.
ROVNER, Circuit Judge.
Khan struggled academically in medical school from the
outset. She failed three of her courses in her first year of
medical school at The Chicago College of Osteopathic Medicine
at Midwestern University. Ordinarily, under the school
policy, this would permit the school administrators to
dismiss her from the program. They opted not to do so.
Instead, they gave Khan a second opportunity to prove herself
able to satisfactorily complete the program. She was able to
pass the classes on her second try the following year, but
she continued to fail new classes in the second year (Block
II) of her medical school curriculum. This time, however, she
was pregnant and after being expelled, she sued the
University, claiming that it had violated the Rehabilitation
Act by failing to accommodate her pregnancy-related
disabilities. The University filed a motion for summary
judgment arguing that even if all the facts she alleged were
true, she was not otherwise qualified for the medical school
this case comes to us as an appeal of a grant of summary
judgment, we take all of the facts and reasonable inferences
in the light most favorable to Khan, and look to see whether
given those facts, the motion can be granted as a matter of
law. See Aguilar v. Gaston-Camara, 861 F.3d 626, 630
(7th Cir. 2017). We must resist the trap of assessing the
credibility of witnesses, choosing between competing
inferences or balancing the relative weight of conflicting
evidence. Or-ton-Bell v. Indiana, 759 F.3d 768, 773
(7th Cir. 2014). Sometimes a party makes that task difficult
either by lodging speculative claims or engaging in a pattern
of behavior that suggests dishonesty. Payne v.
Pauley, 337 F.3d 767, 771 (7th Cir. 2003). Nevertheless
we must remain true to our task on summary judgment and take
the facts in the light most favorable to Khan. Id.
According to Khan, one of her professors, upon learning of
her pregnancy, told her that "pregnancy is a full time
job that required [her] to sit at home and play mommy."
R. 59-2 at 2, Page ID 496; R. 59-1 at 10, Page ID
Even assuming, as we must for purposes of this motion, that
the comment was uttered, we must assess whether it has any
legal relevance for a candidate who, at the time it occurred,
had already failed more courses than permitted for students
in the program. In other words, "the plain language of
Fed.R.Civ.P. 56(c) mandates the entry of summary judgment ...
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, on which that party will bear the burden of
proof at trial." Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). It is Midwestern's burden to
demonstrate that there are no genuine disputes as to any
facts that are material to Khan's discrimination claim.
the nature of the discrimination, it has no legal relevance
if Khan was not otherwise qualified, with or without
accommodations, for the program. The University alleges that
she was not. The facts that are relevant to this inquiry,
therefore, are those regarding her academic performance and
the policies and practices of the school regarding academic
achievement and promotions.
begin with the latter. Anytime a student fails a class at the
University, the University's Preclinical Promotions
Committee (Committee) reviews that student's academic
progress. According to University policy, each course failure
results in an accumulation of "failure
equivalents." The University runs on a quarter system,
so that if a course is taught over one quarter and the
student fails that course, she accumulates one failure
equivalent. If the course is taught over two quarters and the
student fails, then she will receive two failure equivalents,
and so on. If a student accumulates one failure equivalent,
the Promotions Committee usually requires the student to
repeat that course before she can progress in her studies. If
a student accumulates three failure equivalents in a single
academic year or four failure equivalents spanning more than
one year, the usual practice is that the Promotions Committee
dismisses the student. See R. 57-1 at 20, Page ID 214.
matriculated in August 2010. Block I of the medical school
program (the first year program) contained sixteen courses.
Khan failed three of those initial sixteen courses, for a
total of four failure-equivalents, due to the variable credit
values of the courses. She also withdrew from five other
courses during the third quarter. Khan concedes, and there is
no question, that the Committee could have dismissed Khan at
this point as she had surpassed three failure equivalents.
Instead of dismissing her outright, however, the Committee
gave Khan an opportunity to explain her unsatisfactory
performance. After explaining that her husband had been ill,
the members of the Committee decided to give her a second
bite at the apple. The Committee suspended her, placed her on
academic probation, required her to sit out the remainder of
the year, and retake all the failed and incomplete courses
the following year.
repeated her Block I courses beginning in the autumn term
2011, and this time she earned C's in the classes she had
previously failed and advanced to Block II by the end of
summer 2012. This did not, however, annul the four
failure-equivalents she had already accrued, and they
remained relevant for determining Khan's qualifications
for remaining enrolled should future difficulties arise.
those difficulties did arise. By January 2013, Khan was
failing three courses in Block II. She also had recently
become pregnant and was suffering from many pregnancy-related
symptoms including fatigue, nausea, anxiety, and gestational
diabetes. In March, Khan requested and was granted a two-week
medical leave. To support her request, Khan submitted a
letter from her physician stating that he had been treating
Khan for depression and anxiety related to her pregnancy and
that she required accommodations for her medical issues.
After returning from her leave, she requested additional
accommodations, supported with a letter from her counselor,
including extended time to take exams, a quiet room to take
exams, and adjustments to her class schedule and rotations.
She also requested a tutor for pharmacology and to reschedule
examinations in pharmacology, pathology, and microbiology.
Midwestern rescheduled Khan's pathology and microbiology
exams (but not pharmacology) and assigned a tutor to assist
her with pharmacology. Although Midwestern rescheduled some
exams, it did not provide Khan with a quiet room, extend time
to take exams, or extend the times between exams. Midwestern
did not modify Khan's rotation locations, and as a
result, she had to drive over two hours round trip every day
which posed a hardship with regard to her pregnancy
complications. Khan also claimed that the tutor did not have
time to meet with her.
March 25, 2013, Khan's pharmacology professor, Dr.
Prozialeck, sent Khan an email notifying Khan that she had
failed seven out of nine exams in his course and requesting
that she come meet with him. Khan alleges that during that
meeting Dr. Prozialeck criticized her for being pregnant, and
told her "there was no scope for her to pass the course
as being pregnant is a full time job and required her to stay
at home and play mommy." R. 59-1 at 10, Page ID 477; R.
59-2 at 2, Page ID 496.
addition to the nine exams Khan had already taken (seven of
which she had failed), she also had to make up a missed exam
from earlier in the semester when she was ill. Her professor
scheduled the make-up exam for the end of the quarter, in
accordance with the course policy. In the meantime, she had
to pass the final exam in pharmacology. On the day of that
exam, Khan did not arrive until thirty minutes after the
testing had begun. After arriving, she explained that she was
detained by traffic and requested to take the exam at a later
time because of anxiety, nausea, and light-headedness due to
her pregnancy. Dr. Prozialeck denied her request. Khan
alleges that had Midwestern reviewed the video footage
available from that day it would have substantiated
Khan's version of events, but she does not say what the
video would have revealed. The recitation of the facts in the
parties' briefs do not reveal a disagreement about the
relevant material facts regarding the final exam. According
to Khan, she arrived late, informed the professor that she
was not feeling well, and he denied her request to take the