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Bayon v. State University of New York at Buffalo

April 13, 2006


The opinion of the court was delivered by: John T. Elfvin S.U.S.D.J.



Plaintiff Carlos Bayon ("Bayon") commenced this action alleging, inter alia, that the University at Buffalo ("UB") unlawfully retaliated against him in violation of Title V of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12203(a).*fn2 The trial commenced on May 2, 2005 and the jury returned a verdict in Bayon's favor on May 5, 2005, awarding him $601,000 in damages. Pending before the Court are UB's renewed Motion for Judgment as a Matter of Law pursuant to Federal Rule of Civil Procedure ("FRCvP") 50(b)*fn3 and its Motion for a New Trial pursuant to FRCvP 59.


At trial, the Court heard testimony from Bayon, Dr. Ann McElroy ("McElroy"), Bayon's academic adviser for the Fall 1997 semester, Dr. Christine Duggleby ("Duggleby"), the former Director of Graduate Students for the Anthropology Department, Joanne Plunkett ("Plunkett"), a Financial Aid Department employee, Dr. Milisauskas ("Milisauskas"), the former Chairman of the Anthropology Department, Dr. Maurizio Trevisan ("Trevisan"), Chairman of the Social and Preventative Medicine Department, Linda Draper ("Draper"), Bayon's good friend and landlord, Dr. Monroe Eagles, Dr. David Triggle ("Triggle"), Dean of the Graduate School, Dr. Donald Pollock ("Pollock"), the current Chairman of the Anthropology Department and Mary Anne Lang, the Secretary to the Anthropology Department. Based on the testimony and the exhibits introduced into evidence, the jury could have found the following facts.

Bayon completed his Bachelor's Degree at UB in June 1996. He thereafter commenced studies as a graduate student in the Anthropology Department in order to pursue a Master's Degree and eventually a Ph. D. While Bayon performed acceptably during the Fall 1996 semester, he received grades including a "C" and a "D" in the Spring 1997 semester and, as a result, his cumulative grade point average ("GPA") fell below a 3.0.*fn4 (T*fn5 at 12-14.) He also failed the physical anthropology qualifying examination in May 1997.*fn6

Thereafter, Bayon filed complaints with the United States Department of Education's Office of Civil Rights and requested that UB's Anthropology faculty retroactively withdraw him from the two classes in which he had performed poorly.*fn7 (T at 14- 17.) Bayon also requested that he be assigned a new academic advisor and that he be allowed to change his subfield concentration from physical anthropology to cultural anthropology. (T at 19-20.) Bayon's request to change his subfield concentration was granted and Bayon began his studies in the Fall 1997 semester in the cultural anthropology subfield with Dr. Ann McElroy as his academic advisor. (T at 20-23.) Among other classes, Bayon enrolled in an Introduction to Epidemiology class offered through the Social and Preventative Medicine Department ("SPM 501") at McElroy's suggestion. (T at 30-31.) Because Bayon's GPA was below the required 3.0 level, Bayon was denied financial aid for the Fall 1997 semester but was financially able to register for and attend classes during the Fall 1997 semester because, as a recipient of the Schomberg Fellowship, he received a full tuition waiver.*fn8 (T at 27-30.) Bayon was not placed on academic probation for that semester, however, because it was his first semester in the cultural anthropology subfield and Duggleby wanted to provide him with an opportunity to improve his academic standing.*fn9

By September 1997, many Anthropology professors were aware that Bayon had filed complaints with the Office of Civil Rights. McElroy was also aware of the complaints because Bayon had told her about them over the Summer of 1997 prior to her agreement to become his academic advisor.*fn10 (T at 21, 138.) McElroy and Bayon scheduled an advisement meeting to be held in September 1997. (T at 21.) Prior to the meeting, McElroy briefly discussed the subject of Bayon's complaints with Dr. Steegman, Bayon's former academic advisor. (T at 142-43.) McElroy also briefly discussed with Milisauskas, the Chairman of the Anthropology Department, the fact that Bayon had filed such complaints. (T at 143-44.) In the discussion with Milisauskas, McElroy told him that she intended to ask Bayon to drop his complaints and Milisauskas responded that it would do no good to ask. (T at 144-45.) At the advisement meeting, McElroy in fact asked Bayon to drop his complaints, telling him that professors in the department were upset and distressed about his complaints and that if he wanted to graduate he should drop the complaints. (T at 23-26.) Bayon refused. McElroy continued to advise Bayon on his academic endeavors through the Fall 1997 semester and into the Spring 1998 semester.*fn11

In October or November of 1997, Bayon inquired of the Financial Aid Department as to whether his financial aid could be reinstated. (T at 27-28.) He was informed by Joanne Plunkett that, if the Anthropology Department would certify that he was making satisfactory academic progress, he could still receive financial aid for Fall 1997 even though the semester had already begun. (T at 28-29.) Plunkett inquired of the Anthropology Department as to whether Bayon could be certified as making such progress. In response, Duggleby informed Plunkett that Bayon had switched his subfield concentration to cultural anthropology and, at the time of her response, Duggleby could not make a determination as to whether Bayon was making satisfactory academic progress. (T at 29.)

Also during the Fall 1997 semester - specifically October 1997 -, Bayon continued to have academic difficulties, particularly in SPM 501 and with the professor for the class, Dr. Freudenheim ("Freudenheim"). (T at 30-31.) After Bayon failed an examination in the class, he sent a complaint on October 14, 1997 to Dr. Trevisan, the Chairman of the Social and Preventative Medicine Department, requesting Trevisan's intervention and a meeting with Trevisan, Dr. Vena, the Director of Graduate Students for the Social and Preventative Medicine Department, and with Freudenheim, in order to resolve his issues with Freudenheim and the SPM 501 class.*fn12 (T at 31-32.) The meeting took place on October 17, 1997 with Bayon, Trevisan, Vena and Bayon's friend, Linda Draper - who was also a complaining student in the class - in attendance. (T at 33-35.) Freudenheim was not present. Both Bayon and Draper testified that Trevisan was loud, angry and aggressive toward Bayon at the meeting. (T at 36; T3 at 6.) As a result of the meeting, Draper was advised to discuss her concerns about her examination grade directly with Freudenheim. (T3 at 7-8.) Bayon, however, was told that an investigation into his allegations concerning Freudenheim's conduct toward him would be commenced and that his examination would be reviewed by a graduate committee. (T at 36. T3 at 7.)

Bayon was concerned that he receive a response to his complaint - particularly a resolution of the grading of his examination - prior to October 24, 1997 because such date was the last on which he could withdraw from the class. (T at 37-38.) Both Bayon and Draper testified that the upcoming deadline for withdrawal from the class was discussed with Trevisan at the meeting. (T3 at 7.) Bayon testified that Vena said not to worry about the deadline because he was going on vacation and was unsure how long his investigation into Bayon's complaints would take. (T at 37-38.) In contrast, Draper testified that it was Trevisan who acknowledged the deadline and stated that he would look into Bayon's allegations quickly so that Bayon could decide whether or not to withdraw from the class. (T3 at 7.) The graduate committee met on November 3, 1997 at which time the committee awarded Bayon an additional five points on his examination, but such additional points were insufficient to raise Bayon's score to a passing grade.*fn13 (T at 38-39.) Thereafter, Bayon advised Vena that he wanted to withdraw from the class. (T at 40.) Trevisan - not Vena - responded to Bayon's request, noting that the deadline to withdraw had passed and that Bayon should pursue the academic requirements for successful completion of the class.*fn14 (T at 41-42.) As noted earlier, after filing his complaint, Bayon did not attend classes or perform any of the academic requirements for SPM 501. (T3 at 16-17.) He ultimately received a grade of "F" for SPM 501 and his GPA remained below the required 3.0 average. (T at 44-45.)

Registration for the Spring 1998 semester began in November 1997. At that time, Bayon owed UB approximately $950 in unpaid student fees and insurance premiums. As a result of the unpaid balance, a "check-stop" was issued against his account which prevented him from registering until he paid the balance due. (T at 84-85.) At the time Spring 1998 registration commenced, there was no academic impediment to Bayon's registration, only the "check stop" due to his outstanding balance. Notwithstanding the balance due, Bayon was informed in January 1998 that he could register late for the Spring 1998 semester - which had already commenced - if he agreed to immediately pay one-half of his balance and agreed to pay the other half by April 1, 1998. (T at 86.) Bayon did not pay any of the outstanding balance and therefore was unable to register. Ibid. Bayon did not register for or attend any classes for the Spring 1998 semester.

Early in 1998 Bayon sought the assistance of Madison Boyce, the UB Ombudsman, in order to be retroactively withdrawn from SPM 501. (T at 46.) Because Bayon's GPA for the Fall 1997 semester fell below 3.0, on February 11, 1998 Duggleby sent Bayon a letter advising him that he was placed on academic probation for the Spring 1998 semester. (T at 45.) At that time, however, Bayon was not a registered student because he had failed to register for any classes. (T at 45-46.) Thereafter, on February 23, 1998 Bayon was retroactively withdrawn from SPM 501, his cumulative GPA rose above 3.0 and his academic probation was removed. (T at 46-47.)

After he had been retroactively withdrawn from SPM 501, Bayon sought to register late for the Spring 1998 semester and have his financial aid and fellowship reinstated. (T at 49.) On March 2, 1998 Bayon wrote to Triggle requesting that Triggle register him for two classes. (T at 49-50.) On March 20, 1998 Triggle denied Bayon's request because the semester had begun on January 20 and because Bayon had not been attending the classes for which he sought to register. (T at 50-51.)

After his request to register late was denied, Bayon filed for a Waiver of Continuous Registration requirement. That waiver was denied by Duggleby because only registered students are eligible for such a waiver under UB policy. (T at 52-54.) Next, Bayon filed for a leave of absence for the Spring 1998 semester, which was also denied. (T at 54-55.)

In August 1998, Bayon sought readmission to the Anthropology Department.*fn15

(T at 55-56.) A graduate committee was convened in order to consider Bayon's application. (T3 at 41.) During the discussion of his application, Duggleby brought to the committee's attention that the "R" grade reflected on Bayon's official transcript for the SPM 501 class in Fall 1997 had previously been an "F". (T3 at 46.) Dr. Shryock, another member of the graduate committee who had taught Bayon in Fall 1996 and had given Bayon a grade of "B," indicated that - looking back - he would have given Bayon a "D". (T3 at 44.) In September 1998, the graduate committee rejected Bayon's application for readmission citing his failure of the qualifying examination in physical anthropology in Spring 1997, his poor performance in certain anthropology courses and the fact that his cumulative GPA of 3.1 was barely above the required 3.0. (T3 at 47.) In March 1999 Bayon applied for a Waiver of Satisfactory Academic Progress. (T3 at 80.) He was afforded an opportunity to supply additional information pertinent to his application, but did not submit such. (T3 at 81-82.) ...

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