United States District Court, D. Maine
RECOMMENDED DECISION ON MOTION FOR SUMMARY
H. Rich III United States Magistrate Judge.
action brought by a former student against her teacher and
school, the defendants move for summary judgment on all
counts of the plaintiff's complaint, which sound in
negligence and breach of contract. For the reasons that
follow, I recommend that the court grant the motion.
Applicable Legal Standards
Federal Rule of Civil Procedure 56
judgment is appropriate "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."
Fed.R.Civ.P. 56(a); Ahmed v. Johnson, 752 F.3d 490,
495 (1st Cir. 2014). "A dispute is genuine if ‘the
evidence about the fact is such that a reasonable jury could
resolve the point in favor of the non-moving party."
Johnson v. University of P.R., 714 F.3d 48, 52 (1st
Cir. 2013) (quoting Thompson v. Coca-Cola Co., 522
F.3d 168, 175 (1st Cir. 2008)). "A fact is material if
it has the potential of determining the outcome of the
litigation." Id. (quoting Maymi v. P.R.
Ports Auth., 515 F.3d 20, 25 (1st Cir. 2008)).
party moving for summary judgment must demonstrate an absence
of evidence to support the nonmoving party's case.
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
In determining whether this burden is met, the court must
view the record in the light most favorable to the nonmoving
party and give that party the benefit of all reasonable
inferences in its favor. Johnson, 714 F.3d at 52.
Once the moving party has made a preliminary showing that no
genuine issue of material fact exists, the nonmovant must
"produce specific facts, in suitable evidentiary form,
to establish the presence of a trialworthy issue."
Brooks v. AIG SunAmerica Life Assur. Co., 480 F.3d
579, 586 (1st Cir. 2007) (quoting Clifford v.
Barnhart, 449 F.3d 276, 280 (1st Cir. 2006) (emphasis
omitted)); Fed.R.Civ.P. 56(c). "As to any essential
factual element of its claim on which the nonmovant would
bear the burden of proof at trial, its failure to come
forward with sufficient evidence to generate a trialworthy
issue warrants summary judgment to the moving party."
In re Spigel, 260 F.3d 27, 31 (1st Cir. 2001)
(citation and internal punctuation omitted).
Local Rule 56
evidence that the court may consider in deciding whether
genuine issues of material fact exist for purposes of summary
judgment is circumscribed by the local rules of this
district. See Loc. R. 56. The moving party must
first file a statement of material facts that it claims are
not in dispute. See Loc. R. 56(b). Each fact must be
set forth in a numbered paragraph and supported by a specific
record citation. See id. The nonmoving party must
then submit a responsive "separate, short, and
concise" statement of material facts in which it must
"admit, deny or qualify the facts by reference to each
numbered paragraph of the moving party's statement of
material facts[.]" Loc. R. 56(c). The nonmovant likewise
must support each denial or qualification with an appropriate
record citation. See id. The nonmoving party may
also submit its own additional statement of material facts
that it contends are not in dispute, each supported by a
specific record citation. See id. The movant then
must respond to the nonmoving party's statement of
additional facts, if any, by way of a reply statement of
material facts in which it must "admit, deny or qualify
such additional facts by reference to the numbered
paragraphs" of the nonmovant's statement.
See Loc. R. 56(d). Again, each denial or
qualification must be supported by an appropriate record
citation. See id.
Rule 56 directs that "[f]acts contained in a supporting
or opposing statement of material facts, if supported by
record citations as required by this rule, shall be deemed
admitted unless properly controverted." Loc. R. 56(f).
In addition, "[t]he court may disregard any statement of
fact not supported by a specific citation to record material
properly considered on summary judgment" and has
"no independent duty to search or consider any part of
the record not specifically referenced in the parties'
separate statement of fact." Id.; see also,
e.g., Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d
1, 5 (1st Cir. 2010); Fed.R.Civ.P. 56(e)(2) ("If a party
fails to properly support an assertion of fact or fails to
properly address another party's assertion of fact as
required by Rule 56(c), the court may . . . consider the fact
undisputed for purposes of the motion[.]").
parties' statements of material facts, credited to the
extent that they are either admitted or supported by record
citations in accordance with Local Rule 56, with disputes
resolved in favor of the plaintiff as the nonmovant, reveal
University of New England ("UNE") is a private,
non-profit university located in Maine. Defendants'
Statement of Facts ("Defendants' SMF") (ECF No.
28) ¶ 1; Plaintiff's Opposing Statement of Material
Facts ("Plaintiff's Responsive SMF") (ECF No.
30) ¶ 1. It offers an M.S. degree in occupational
therapy ("MSOT") through its Westbrook College of
Health Professions, Occupational Therapy Department.
Id. The program leading to this degree begins in the
summer and continues for six consecutive semesters or terms
over a two-year period. Id.
program is demanding and exacting. Id. ¶ 2. Its
students are expected to be present, prepared for class, and
actively engaged as evidenced by critical thinking and
meaningful participation. Id. Students may be
dismissed from the program for a variety of reasons,
including but not limited to unacceptable academic
performance, failure to remove probation status, or a conduct
violation. Id. ¶ 3. In addition to course
grades and clinical or field evaluations, student progression
is monitored through regular instructor evaluation of
assignments and performance, programmatic level review
through regularly scheduled comprehensive student reviews,
and Student Development Committee ("SDC") reviews
as needed. Id. ¶ 4.
primary function of the SDC is to conduct reviews of student
performance in order to assess whether a student can progress
in a program, make a determination of student status, and
make recommendations for action when a student has failed to
maintain academic and professional standards, whether in
class, clinical setting, or community. Id. ¶ 5.
An SDC review may be recommended by any faculty, including
the program director, or the faculty as a whole as an outcome
of the comprehensive student review. Id.
an SDC review, the program director will either approve the
SDC's plan or recommend modifications to the SDC.
Id. ¶ 7. At all relevant times, Jane Clifford
O'Brien, Ph.D., OTR/L, was the program director.
Id. A student has the right to appeal to the dean
decisions affecting academic progression following the
process outlined in the UNE Student Handbook. Id.
¶ 8. At all relevant times, Elizabeth Francis-Connolly,
Ph.D., OTR, FAOTA, was the dean of UNE's Westbrook
College of Health Professions. Id.
relevant times, the SDC consisted of Kathryn Loukas, OTD, MS,
OTR/L; Regi Robnett, Ph.D., OTR/L; Scott D. McNeil, OTD, MS,
OTR/L; and Mary Elizabeth Patnaude. MS, OTR/L. Id.
plaintiff began the MSOT program in late May/early June 2014.
Id. ¶ 9. In June 2014, the plaintiff received
and reviewed the MSOT Handbook and the UNE Student Handbook.
Id. ¶ 10. The UNE Student Handbook provides
that its "provisions . . . do not constitute a contract,
express or implied, between [UNE] and any applicant,
student's family, or faculty or staff member" and
that UNE "reserves the right to change the policies,
procedures, rules, regulations, and information in this
handbook at any time." Id. ¶ 11.
the plaintiffs training at UNE, there was an emphasis on
safety for students and patients. Id. ¶ 13.
Students in the MSOT program were required to take certain
lab courses designed to provide them with hands-on
occupational therapy training. Id. ¶14. In
these courses, a student must pass a mid-term practical exam
and a final practical exam. Id. A practical exam
requires that a student properly manage a patient in need of
occupational therapy. Id. Instructors act as mock
patients during these exams. Id. In order to ensure
safe practice, students must achieve a minimum 80% competency
to pass each practical exam. Id. ¶ 16.
other required classes, the plaintiff was enrolled in
"OT 503L/Occupational Performance in Older Adults"
("OT 503L") in the summer of 2014. Id.
¶ 17. The plaintiff missed the first lab class for OT
503L on June 4, 2014, and, therefore, had to complete a
make-up essay, to ensure that she was familiar with the
material. Id. ¶ 18. On July 23, 2014, the
plaintiff failed an OT 503L Arthritis Hand Function Test
"skills check" by scoring only 50. Id.
¶ 19. On July 29, 2014, the plaintiff scored below 80 on
a skills check for OT 503L. Id. ¶ 20. A skills
check is a "mini practical" undertaken by a student
before a practical exam. Id. ¶ 21.
MSOT program had "open labs" where students could
practice with each other before their practical exams.
Id. ¶ 22. The plaintiff never attended an
"open lab" at UNE. Id. On July 31, 2014,
the plaintiff was sent an email reminding her that she needed
to have all immunizations up to date. Id. ¶ 23.
She took her final practical exam for OT 503L on August 13,
2014. Id. ¶ 24. During the exam, Dr. McNeil
acted as a patient with a hip injury. Id. The
plaintiff scored below 80 on this exam and, therefore,
failed. Id. ¶ 26. The final exam was stopped by
Patnaude, who said "it's not safe."
Id. ¶ 27. Among other issues, the plaintiff
failed to lock the brakes on the mock patient's
said that the plaintiff did not understand the diagnosis of
the patient, even though she was given the diagnosis ahead of
time, and also was unprepared. Id. ¶ 28. She
also said that the plaintiff set up the transfer of a patient
who could not bear weight in an improper manner that would
have required the patient to bear weight. Id. The
plaintiff maintains that her back was hurt "a little
bit" during the final practical exam because the mock
patient "was unsteady on his feet." Id.
¶ 29. During the exam, she did not mention hurting her
plaintiff was not able to re-take the exam immediately.
Id. ¶ 30. On August 19, 2014, the SDC met to
discuss the plaintiff because she failed the final practical
exam in OT 503L. Id. ¶ 32. The plaintiff was
scheduled to re-take the exam on August 26 at 3:00 p.m.
Id. ¶ 30. By that time, her back was not
bothering her. Id. ¶ 31. She received the
minimum passing score of 80. Id. ¶ 33.
September 23, 2014, the plaintiff did not attend her
tuberculosis skin test appointment. Id. ¶ 34.
fall of 2014, the plaintiff was enrolled in OT
515L/Interventions with Adults ("OT 515L") and OT
515/Biopsychosocial Dimensions of Adults ("OT
515"), both of which were required courses. Id.
¶ 35. On October 7, 2014, the plaintiff did not reach
the minimum passing score on her midterm practical exam for
OT 515L. Id. ¶ 36. The plaintiff claims that
she injured her back during this exam due to the mock
patient's movements. Id. ¶
During the exam, she did not indicate that she had hurt her
back. Id. The plaintiff maintains that she told Dr.
NcNeil that her back hurt on October 10, 2014. Id.
October 8, 2014, Patnaude advised Dr. McNeil, Dr. Loukas, Dr.
Robnett, and Dr. O'Brien as follows: "I received a
call from Annalia Montany, that she is not able to go to MMC
today (she is due there in less than 2 hours), because she
didn't realize her PPD was expired. This is not the first
example of [her] being unprepared. In addition, I have
documented incidences of poor time management. I let her know
that this was very unprofessional. In addition, she displayed
very poor performance on her Midterm exam for OT 515L. I
would like to refer her to the SDC for intervention."
Id. ¶ 42. In response, Dr. McNeil stated that
he shared Patnaude's concern and agreed with SDC
involvement. Id. On October 15, 2014, Patnaude met
with the plaintiff and informed her of the concerns expressed
by faculty, such as lack of professionalism and poor clinical
skills. Id. ¶ 46.
October 15, 2014, the plaintiff scored 72 on the retake of
her OT 515L mid-term practical exam, which was below the
passing score of 80. Id. ¶ 47. During this
exam, the plaintiff did not indicate that she physically
unable to take the exam or that her ability to pass the test
was affected by a back injury. Id. ¶ 49.
Because she failed the mid-term practical exam, the plaintiff
failed OT 515L. Id. ¶ 50.
the failed exam, Dr. McNeil wrote that the plaintiff
"continues to struggle with multiple clinical skills
including providing instructions, clinical reasoning but most
concerning are safety related issues including body
mechanics, and safe management of medical lines . . . . It is
my opinion that [she] has not been progressing in her
clinical skills compared to her classmates. I have
significant concerns about her poor safety awareness and
insight into her areas needing improvement."
Id. ¶ 52. Shortly thereafter, he ...