United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
J. MCCONNELL, JR. UNITED STATES DISTRICT JUDGE
Driscoll is a former Physician's Assistant
("PA") student at Bryant University. After the
school and the program director, Jay Amrien,
decelerated him for poor performance, Mr. Driscoll
brought this suit alleging disability discrimination and
breach of contract. Bryant University and Mr. Amrien
(collectively "Bryant") now move for summary
judgment. ECF No. 32. Because the Court finds that Bryant did
not violate the Americans with Disabilities Act
("ADA") or the Rehabilitation Act, and did not
breach its contract with Mr. Driscoll, the Court GRANTS the
Defendant's Motion for Summary Judgment.
2015, Bryant accepted Mr. Driscoll into its PA Program. ECF
No. 39 at 5-6, ¶ 24. Bryant's PA Program is rigorous
and involves frequent testing, about one exam every week, on
many subjects. Id. at 1-2, ¶¶ 1-6. To
proceed through the program, students must maintain a 3.0 GPA
(75% or greater). Id. at 2, ¶ 8. If a student
fails to obtain a 3.0 GPA for a term, that student will be
placed on academic probation. ECF No. 33-2 at 20. If the
student fails to attain the necessary 3.0 GPA for two terms,
that student is subject to dismissal. Id. Despite,
or perhaps because of the program's rigors, the school
offers a generous remediation program that gives struggling
students many ways to correct failing grades. ECF No. 39 at
3, ¶¶ 9-11. When a student fails a test, academic
support is notified, and the student meets with faculty to
address the issue. ECF No. 33-2 at 21. Further, the student
may take a remediation test and if the student passes the
test, the failing grade will be replaced with a 75% (the
minimum passing grade). Id.
student fails an entire course, that student is placed on
academic probation and must take a comprehensive course exam.
Id. Failure of this exam results in deceleration.
Id. Only two courses may be remediated during a
single term and more than two failed courses within a term
will result in dismissal from the program. Id.
Driscoll did not begin his time at Bryant under the best
circumstances.During Mr. Driscoll's first term he
failed three out of fourteen total exams (see ECF
No. 35-15) and finished the term with a 2.86 GPA (ECF No.
33-16). A month into his second term, the Academic Support
and Remediation Committee placed Mr. Driscoll on academic
probation. Id. Several weeks later, Mr. Driscoll
requested an accommodation for his Attention Deficit
Hyperactivity Disorder ("ADHD"). ECF No. 39 at 13,
¶¶ 59-60. Bryant responded and, upon receipt of a
doctor's note, promptly granted Mr. Driscoll an
accommodation of time-and-a-half for each exam. Id.
at 13-14, ¶¶ 62-66. Bryant made clear to Mr.
Driscoll that it was his "responsibility to meet with
professors to make practical arrangements for each
accommodation." ECF No. 33-19. Bryant emphasized that
"[f]aculty members are not required to provide
accommodations unless the student follows through on all
arrangements within the established timeframes."
Program's daily schedule was intense, with classes and
exams being held in back-to-back time slots. Therefore, the
time-and-a-half accommodation affected Mr. Driscoll in a
specific way: If he used his accommodation, he would miss
part of the group exams (ECF No. 39 at 14, ¶ 67), these
allowed students to re-take the exam as a group right after
taking it alone. Id. at 4, ¶¶ 15-17. The
groups had the opportunity to receive additional points on
their own exams if the group did well.ECF No. 39 at 5,
¶ 21. Mr. Driscoll received whatever points his group
earned, but often missed some of the group exams. He raised
no concern about the practical arrangement of his
accommodation with his professors or PA Program staff, there
is transcript evidence where he complained to Professor
Christopher Furbee about the general rigors of the program
and Professor Furbee responded that the schedule structure
could not be changed. ECF No. 33-22 at 22, ¶¶ 2-25;
ECF No. 40-4 at 8, ¶¶ 10-17.
Driscoll also alleges that he was twice denied his
time-and-a-half accommodation. Once he had to leave his
Urology exam without the extra half-hour accommodation
because a Psychiatry group presentation was scheduled to
begin right after the exam. Id. at 15, ¶ 71. He
failed the exam with a 74%. ECF No. 33-15 at 6. Mr. Driscoll
also alleges that Bryant did not give him his accommodation
for another exam, but merely cites his own deposition as
evidence of this allegation. ECF No. 40 at 5-6, ¶¶
Driscoll failed ten out of the fifteen exams during his
second term. See ECF No. 33-15. Ultimately,
for his second term, after the two failing grades were
remediated, Mr. Driscoll finished the term with a 2.92 GPA,
short of the 3.0 GPA required to progress in the program. ECF
No. 39 at 16, ¶ 75. Mr. Driscoll entered his third and
final term on academic probation. ECF No. 33-20. For this
term, Mr. Driscoll had his full accommodation for every
exam.,  Mr. Driscoll's third semester went no
better than his first two and he failed eleven out of
eighteen exams. See ECF No. 33-15. In Clinical
Medicine Three, Mr. Driscoll failed five of six exams. ECF
No. 39 at 16, ¶ 76.
through his final term, Mr. Driscoll met with his advisor
(Professor Christopher Furbee) and the Program Manager (Kayla
Cetrone) to discuss his performance in Clinical Medicine
Three. Id. at 17, ¶¶ 80-81. For the first
time, Mr. Driscoll told Professor Furbee and Ms. Cetrone that
he felt at a disadvantage because he missed some group exams.
See ECF No. 39. He also asked to see his previous
exams, even though it is against school policy to provide old
exams to students. Id. at 17, ¶¶ 82-83.
During this meeting, the three set up a time for Mr. Driscoll
to take the remedial comprehensive exam for his failing
Clinical Medicine Three course grade. Id. at ¶
84. Professor Furbee even gave Mr. Driscoll permission to
view his earlier exams to prepare for the exam. Id.
for Mr. Driscoll, despite the significant help and deviation
from school policy, he failed the comprehensive exam with a
68%. ECF No. 33-26. Because he was also on track to fail
several other courses, the staff decided to decelerate him at
that point rather than waiting until the end of the term when
he would be subject to dismissal. The Academic Support and
Remediation Committee subsequently informed Mr. Driscoll that
he would be decelerated. ECF No. 33-26. Mr. Driscoll appealed
this decision, but Mr. Amrien and the Provost independently
affirmed the deceleration decision. ECF Nos. 33-28; 33-30.
during the summer of 2016, there was construction happening
at the PA campus. ECF No. 33-11 at 17, deposition page 156,
¶¶ 3-7. Mr. Driscoll argues that the noise
exacerbated his ADHD, affecting his ability to take tests. He
asserts that he could not seek an accommodation for the noise
because the Academic Center for Excellence ("ACE")
office (the office that received requests for accommodations)
was closed because of the construction. ECF No. 1 at 4-5,
¶ 40. Bryant disputes this through an affidavit from
Carol DeMoranville, the supervisor of ACE, asserting that
there is always a point person on staff and that at no point
in 2016 was the office closed for an extended time. ECF No.
33-18 at 2-3, ¶¶ 4, 8-9.
Driscoll declined to return to the program for the subsequent
Fall term in a decelerated capacity. He then underwent a full
neurological exam and was diagnosed with ADHD. ECF No. 42.
Following that diagnosis, he brought this suit against Bryant
University and Mr. Amrien, alleging claims for violating the
ADA and the Rehabilitation Act and for breach of contract.
ECF No. 1. Bryant now moves for summary judgment on all
counts. ECF No. 32.
STANDAED OF REVIEW
making a summary judgment determination, the Court must
review the entire record and consider the facts and
inferences in the light most favorable to the non-moving
party. Continental Cas. Co. v. Canadian Univ. Ins.
Co., 924 F.2d 370, 373 (1st Cir. 1991). Federal Rule of
Procedure 56(a) dictates that summary judgment should 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." A genuine dispute of
material fact is an ...