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Sherman v. Black

September 26, 2007

DAVID SHERMAN, PLAINTIFF,
v.
DAVID BLACK AND MARGARET SPELLINGS, DEFENDANTS.



The opinion of the court was delivered by: Gershon, United States District Judge

OPINION AND ORDER

Pro se plaintiff David Sherman ("Sherman") filed the instant action against defendants David Black ("Black"), Deputy Assistant Secretary of Education, and Margaret Spellings ("Spellings"), Secretary of Education. Plaintiff alleges that he was discriminated against based on a psychiatric disability, in violation of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq., when the State University of New York Downstate Medical Center, College of Medicine ("SUNY Downstate"), dismissed him from its medical program. Plaintiff seeks judicial review, pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq., of a decision by the United States Department of Education, Office for Civil Rights ("OCR"). He alleges that the federal agency abused its discretion by failing to investigate plaintiff's claims of discrimination, and failed to follow its procedures to provide plaintiff with "conflict resolution" following his dismissal from the medical program. Plaintiff also seeks mandamus relief pursuant to 28 U.S.C. § 1361, compelling defendants to commence conflict resolution proceedings between him and SUNY Downstate.

Defendants seek dismissal of all claims pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction, and Rule 12(b)(6) for failure to state a claim on which relief can be granted. For the reasons set forth below, defendants' motion to dismiss is granted.

I. BACKGROUND

A. Factual Allegations

The factual allegations in plaintiff's complaint are taken as true and all reasonable inferences are drawn in plaintiff's favor.

On June 24, 2002, Lorraine Terracina, Ph.D., Dean of Students, SUNY Downstate College of Medicine, wrote a letter to Sherman, informing him that the Third and Fourth Year Grades Committee ("Grades Committee") recommended that he take a leave of absence from his medical studies. The letter stated that, after reviewing Sherman's grades, which included a failing grade in Medicine Clerkship and "conditional" grades in Surgery Clerkship and Women's Health Clerkship, as well as Sherman's level of anxiety that affected his ability to "master the course material," the Grades Committee thought that he would benefit from this leave of absence. The Grades Committee also recommended that Sherman repeat his third year of medical school and be placed on academic probation upon his return. Sherman decided not to take the recommended leave of absence, and instead, he repeated his third year of the medical program. Sherman was placed on probation for the 2002-2003 academic year; therefore, any deficient academic performance would potentially result in his dismissal from the College of Medicine.

Upon repeating his third year of medical studies at SUNY Downstate, Sherman again received a failing grade in Medicine Clerkship, and, on May 6, 2003, he was dismissed from the College of Medicine. Sherman was scheduled to appeal his dismissal to the Academic Promotions Committee ("Promotions Committee") on May 9, 2003, but he requested a postponement "because of exacerbation of depression." On May 20, 2003, he appeared before the Promotions Committee. On May 21, 2003, the Promotions Committee unanimously decided to uphold Sherman's dismissal. On August 5, 2003, Dr. Eugene B. Feigelson, M.D., Dean, SUNY Downstate College of Medicine, upheld the Promotions Committee's decision.

B. Procedural History

On November 14, 2003, Sherman filed a complaint against SUNY Downstate with OCR's New York Regional Office. In the administrative complaint, Sherman claimed that, when SUNY Downstate dismissed him from its medical program, it discriminated against him on the basis of an alleged psychiatric disability. Specifically, the complaint alleged that SUNY Downstate discriminated against Sherman by: (1) failing to provide him with academic adjustments during the 2000-2001, 2001-2002, and 2002-2003 academic years; (2) dismissing him from the medical school for behavior that was directly caused by his psychiatric condition that he characterized as a disability; and (3) failing to follow its own procedures and student safeguards concerning dismissal from the program.

On February 27, 2004, OCR closed Sherman's case after determining that he failed to provide sufficient factual information to indicate a violation of either Section 504 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 794, or the ADA, 42 U.S.C. §§ 12131 et seq. OCR determined that Sherman's first allegation was untimely because he filed his administrative complaint more than 180 days after the school's purported failure to provide academic adjustments. Notwithstanding the untimeliness of his complaint, OCR determined that Sherman's claim would have failed because he did not provide OCR with facts indicating that he provided SUNY Downstate with appropriate documentation of his disability thereby establishing a need for academic adjustments. OCR also concluded that there was no basis to investigate Sherman's second and third allegations. As to his second allegation, OCR found that Sherman failed to provide any information that he notified the Promotions Committee of his disability and, therefore, it could not have been a consideration in any of its actions. Instead, the documentation Sherman submitted to OCR in support of his complaint indicated that he told the Promotions Committee that his poor evaluations were due primarily to his having informed two faculty members that he was repeating the Medicine Clerkship. Also, the documentation indicated that Sherman declined to provide the Promotions Committee with an explanation for his forgery of a faculty supervisor's initials on an official Medicine Clerkship form. With respect to his third allegation, OCR found that Sherman provided no information to suggest that SUNY Downstate's failure to follow its internal procedures "was different treatment based on disability."

On April 9, 2004, Sherman requested reconsideration of OCR's decision to close his case. On March 18, 2005, Randolph Wills, OCR New York Regional Director, denied plaintiff's request. Sherman subsequently appealed to David Black, Deputy Assistant Secretary for Enforcement of OCR. On October 31, 2005, Black upheld the decision by OCR's New York Regional Office, agreeing that SUNY Downstate had legitimate, non-discriminatory reasons for dismissing Sherman from its medical program. This constituted a final agency determination.

On November 7, 2006, Sherman commenced this federal action against defendants Black and Spellings, officials of the United States Department of Education, seeking an order compelling OCR to conduct conflict resolution proceedings, with the ultimate goal of reaching an agreement with SUNY Downstate allowing Sherman to resume his medical studies at SUNY Downstate. On February 12, 2007, defendants filed a motion to dismiss plaintiff's complaint, arguing, inter alia, that "pursuant to [the Rehabilitation Act and the ADA], the appropriate remedy for discrimination by a federal fund recipient is a suit against the allegedly discriminatory entity." Defs.' Br. at 7. In response, Magistrate Judge Lois Bloom issued an order, dated February 15, 2007, giving plaintiff until March 19, 2007 to oppose defendants' motion to dismiss and stating, "[i]n the alternative, plaintiff may file an amended complaint, . . . deleting the [federal] defendants and naming different defendants, as it appears that plaintiff was a medical student at [SUNY Downstate]."*fn1 Sherman did not file an amended complaint. However, in his ...


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