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Driscoll v. Bryant University

United States District Court, D. Rhode Island

August 7, 2019

CHRISTOPHER DRISCOLL, Plaintiff,
v.
BRYANT UNIVERSITY and JAY AMRIEN, Defendants.

          MEMORANDUM AND ORDER

          JOHN J. MCCONNELL, JR. UNITED STATES DISTRICT JUDGE

         Christopher Driscoll is a former Physician's Assistant ("PA")[1] student at Bryant University. After the school and the program director, Jay Amrien, decelerated[2] 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.

         I. BACKGROUND

         In 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[3] and if the student passes the test, the failing grade will be replaced with a 75% (the minimum passing grade). Id.

         If a 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.

         Mr. Driscoll did not begin his time at Bryant under the best circumstances.[4]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." Id.

         The PA 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[5] (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.[6]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.

         Mr. 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, ¶¶ 43, 50-51.

         Mr. Driscoll failed ten out of the fifteen exams during his second term.[7] 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.[8], [9] 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.

         Mid-way 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.

         Unfortunately 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.

         Also, 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.

         Mr. 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.

         II. STANDAED OF REVIEW

         When 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 ...


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