Driscoll v. Bryant University et al, No. 1:2016cv00633 - Document 47 (D.R.I. 2019)
Court Description: MEMORANDUM AND ORDER granting 32 Motion for Summary Judgment - So Ordered by District Judge John J. McConnell, Jr. on 8/7/2019 (Barletta, Barbara)
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both statutes. It is also uncontested that Bryant is "a place of public accommodation" under the ADA, see 42 U.S.C. § 12181(7)(1), and Bryant receives federal funds so is subject to the Rehabilitation Act, see 42 U.S.C. § 794(a) and 11 Bryant has offered no evidence to suggest that Mr. Driscoll would not have been accepted without the fake medals and stories. 11 (b)(2)(A). The Court focuses its analysis on the second "otherwise qualified" prong and concludes that Mr. Driscoll has failed to establish that he was otherwise qualified to complete Bryant's PA Program. "An otherwise qualified person is one who is able to meet all of a program's requirements in spite of his handicap." Se. Comty. College, 442 U.S. at 406. See 45 C.F.R. § 84.3(1)(3) (an otherwise qualified student is one who has the necessary knowledge and skill to be accepted into and perform successfully in a given program). When determining if a plaintiff is otherwise qualified, "it is necessary to take into account the extent to which reasonable accommodations that will satisfy the legitimate interests of both the school and the student are (or are not) available and, if such accommodations exist, the extent to which the institution explored those alternatives." Wynne v. Tufts Univ. Sch. ofMed. (Wynne I./), 976 F2d 791, 792 (1st Cir. 1992) (citing JVynne v. Tufts Univ. Sch. of Med., 932 F.2d 19, 24·26 (1st Cir. 1991)). Therefore, Mr. Driscoll must show that he communicated to Bryant that there was a reasonable accommodation that would have allowed him to perform successfully and to meet the program requirements. The undisputed facts show that Mr. Driscoll put forth maximum effort in his courses. Mr. Driscoll himself testified that he obtained outside tutoring, test preparation materials, and worked with staff extensively. ECF No. 33·11 at 18, deposition pages 179·81, ~~~ 22·24, 1·24, 1·10. By decelerating Mr. Driscoll instead of dismissing him, Bryant merely tried to help him achieve his goals and see him succeed. 12 To be successful in defeating Bryant's motion, Mr. Driscoll must show that there was an accommodation that would have rendered him otherwise qualified. Mr. Driscoll asked for extra time to take his exams to accommodate for his ADHD. He argues that despite his time·and·a·half accommodation, Bryant denied him "the full extent of the accommodation." ECF No. 1 at 4, ~~ 34, 38. Mr. Driscoll has offered two instances in which such a denial occurred. In one instance, it was impossible to provide the full amount of extra time because another class was scheduled to start directly afterward. However, Bryant made clear in its accommodation letter that Mr. Driscoll needed to "make practical arrangements" about his accommodation and it is undisputed that he did not. See ECF No. 33·19~ In the second instance, Mr. Driscoll has only offered vague allegations that he did not get extra time without asserting any evidence to back up his claim. Mr. Driscoll argues that these two instances created exam anxiety, and that that anxiety affected his ability to perform. The Court finds that any failure was either unavoidable because of the program's requirements or was so insignificant within the larger context of Mr. Driscoll's performance that it could not have been the cause ofthe deceleration decision. The evidence also is clear that even when given the full time accommodation, Mr. Driscoll's academic performance still did not meet the program requirements. Next, the Court considers Mr. Driscoll's argument that his inability to participate in the group exams hampered his ability to perform. Mr. Driscoll argues that this amounted to discrimination as he was unable to participate fully in every aspect of the curriculum. ECF No. 1 at 4, ~~ 13 33, 38. This argument fails for several reasons. First, Mr. Driscoll did not communicate this issue to Bryant until his third term when he was failing and on the brink of dismissal.1 2 Second, the record shows that participation in the group exams had little to no effect on his ability to perform in the program. For example, in Orthopedics, Mr. Driscoll had both his full time accommodation and group exam review, and yet he continued to fail. Mr. Driscoll's access, or lack thereof, to group exams was not determinative of his ability to perform. Finally, Bryant did not deny Mr. Driscoll the ability to seek a noise accommodation during the summer of 2016. See ECF No. 1at 4·5, ~ 40. Mr. Driscoll has offered no proof of this allegation in the face of Bryant's affidavit that the office remained open and staffed. And even if the office was closed, Mr. Driscoll was in constant contact with Bryant staff and had many chances to voice his need for a noise accommodation and the trouble he faced in requesting it. It was his responsibility to communicate his need for an accommodation and there is no evidence that Mr. Driscoll made any effort to do so. Therefore, Mr. Driscoll's argument in this regard fails. The Court finds that the undisputed evidence makes clear that Mr. Driscoll was not qualified and no reasonable accommodation would have allowed him to perform successfully in the P A Program. Mr. Driscoll put forth his best effort, Bryant worked with him on a reasonable remediation program as the handbook required and 12 "[A]n academic institution can be expected only to respond to what it knows." Wynne II, 976 F.2d at 795. 14 gave him his requested accommodation, but in -the end, Mr. Driscoll could not meet the academic requirements of the P A Program. Conclusion For all these reasons, the Court finds that Mr. Driscoll's ADA, Rehabilitation Act, and breach of contract claims against Bryant and Mr. Amrien fail. The Court GRANTS Bryant's Motion for Summary Judgment on all counts. ECF No. 32 . . John J. McConnell, Jr. United States District Judge August 7, 2019 15
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