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Khan v. Midwestern University

United States Court of Appeals, Seventh Circuit

January 16, 2018

Ayesha Khan, Plaintiff-Appellant,
Midwestern University, an Illinois not-for-profit corporation, Defendant-Appellee.

          Argued November 6, 2017

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. l:14-CV-09539 - John Robert Blakey, Judge.

          Before Bauer, Kanne, and Rovner, Circuit Judges.

          ROVNER, Circuit Judge.

         Ayesha 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 program.


         Because 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 477.[1] 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. Id.

         Whatever 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.

         We 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.

         Khan 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.

         Khan 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.

         And 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.

         On 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.

         In 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 ...

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