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Montany v. University of New England

United States District Court, D. Maine

June 24, 2016



          John H. Rich III United States Magistrate Judge.

         In this 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.

         I. Applicable Legal Standards

         A. Federal Rule of Civil Procedure 56

         Summary 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)).

         The 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).

         B. Local Rule 56

         The 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.

         Local 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[.]").

         II. Factual Background

         The 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 the following.[1]

         The 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.

         The 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.

         The 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.

         Following 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.

         At all 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. ¶ 6.

         The 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.

         During 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.

         Among 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.

         The 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 wheelchair. Id.

         Patnaude 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 back. Id.

         The 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.

         On September 23, 2014, the plaintiff did not attend her tuberculosis skin test appointment. Id. ¶ 34.

         In the 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. ¶ 41.[2] 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. ¶ 43.

         On 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.

         On 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.

         Following 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. ΒΆ 52. Shortly thereafter, he ...

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