Ronen Halpern v. Wake Forest University ( 2012 )

Filed: March 14, 2012
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2162
(1:09-cv-00474-NCT-LPA)
RONEN HALPERN,
Plaintiff - Appellant,
v.
WAKE FOREST UNIVERSITY HEALTH SCIENCES,
Defendant – Appellee.
--------------------
DISABILITY RIGHTS NORTH CAROLINA,
Amicus Supporting Appellant.
O R D E R
The Court amends its opinion filed February 28, 2012,
as follows:
On page 8, first line of text in subsection C. --
“Western District” is corrected to read “Middle District.”
For the Court – By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RONEN HALPERN, 
Plaintiff-Appellant,
v.
WAKE FOREST UNIVERSITY HEALTH
SCIENCES,
Defendant-Appellee.  No. 10-2162
DISABILITY RIGHTS NORTH
CAROLINA,
Amicus Supporting Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
N. Carlton Tilley, Jr., Senior District Judge.
(1:09-cv-00474-NCT-LPA)
Argued: December 8, 2011
Decided: February 28, 2012
Before NIEMEYER, MOTZ, and FLOYD, Circuit Judges.
Affirmed by published opinion. Judge Floyd wrote the opin-
ion, in which Judge Niemeyer and Judge Motz joined.
COUNSEL
ARGUED: Lisa Grafstein, LAW OFFICE OF LISA GRAF-
STEIN, PLLC, Raleigh, North Carolina, for Appellant. Jill
2 HALPERN v. WAKE FOREST UNIVERSITY
Stricklin Cox, KILPATRICK TOWNSEND & STOCKTON,
LLP, Winston-Salem, North Carolina, for Appellee. ON
BRIEF: John R. Rittelmeyer, Adrienne E. Allison, DISABIL-
ITY RIGHTS NORTH CAROLINA, Raleigh, North Caro-
lina, for Amicus Supporting Appellant.
OPINION
FLOYD, Circuit Judge:
Appellant Ronen Halpern brought an action alleging that
his dismissal from medical school for unprofessional behavior
violated the Rehabilitation Act of 1973, 29 U.S.C. § 794, and
the Americans with Disabilities Act (ADA), 42 U.S.C.
§ 12182. The district court granted summary judgment in
favor of Appellee Wake Forest University Health Sciences
(Wake Forest or the Medical School). Halpern filed this
timely appeal. Because we agree with the district court that,
with or without a reasonable accommodation, Halpern was
not "otherwise qualified" to participate in the Medical
School’s program, we affirm.
I.
A.
Halpern was enrolled in Wake Forest’s Doctor of Medicine
program from July 2004 to March 2009. As at most medical
schools, Wake Forest’s curriculum is designed as a four-year
program. During the first two years, students take classes to
acquire knowledge in core areas, and for the last two years,
students participate in rotations in different clinical environ-
ments. Prior to beginning these rotations, students must pass
Step One of the United States Medical Licensure Examination
(the Step One Exam).
HALPERN v. WAKE FOREST UNIVERSITY 3
The Medical School’s Student Bulletin outlines the seven
fundamental educational goals of its curriculum. One of these
is that students establish "[p]rofessional [a]ttitudes and
[b]ehavior." The Bulletin instructs that to satisfy this goal,
students must demonstrate, prior to graduating, their respect
for and ability to work with other health care professionals,
adherence to the highest standards of integrity, ability to
admit mistakes and lack of knowledge, and other identified
aspects of professional behavior.
B.
Halpern has been diagnosed with Attention Deficit Hyp-
eractivity Disorder (ADHD) and anxiety disorder—not other-
wise specified,1 both of which he treats with prescription
medications. He received his ADHD diagnosis while he was
an undergraduate student at Emory University, and Emory
provided accommodations for this disability. Upon matricu-
lating at Wake Forest in July 2004, Halpern failed to disclose
his ADHD diagnosis, and he did not request any disability-
related accommodations.
Halpern’s difficulties with professionalism began almost
immediately after his arrival at the Medical School and con-
tinued throughout the first two years of his enrollment. In
August 2004, Academic Computing staff reported that Halp-
ern had acted in a "very abusive" manner that was "far and
beyond worse" than anything they had experienced with other
students. Dr. Joseph Ernest, then-Associate Dean of Student
Services, met with Halpern and convinced him to apologize
1
Dr. Robert Finch testified in a deposition that he first diagnosed Halp-
ern with an anxiety disorder in the spring of 2006, during Halpern’s sec-
ond year as a medical student. Halpern could not recall the precise date
that he received this diagnosis but related that he believed it occurred
while he was enrolled in the Medical School. Halpern informed the school
of his anxiety disorder only after the Student Progress and Promotions
Committee recommended his dismissal.
4 HALPERN v. WAKE FOREST UNIVERSITY
for his behavior so as to "set[] a more professional standard
for his interactions" with Academic Computing.
During the fall of his second year of medical school, Halp-
ern was absent from a small group session without notice. He
falsely represented to faculty members inquiring into his
absence that he had given advance notice to the group facilita-
tors that he would not be present. When confronted, he
retorted that he "got more out of" a different small group ses-
sion that he had opted to attend without permission "than any
. . . lecture, small group, or . . . class assignment to date." Sub-
sequently, he was late to a lecture but signed the attendance
sheet as though he had arrived on time. Faculty members con-
tacted him regarding the discrepancy, and he replied that he
was already "well aware of" the issues discussed. Halpern
now attributes his conduct during this period to side effects of
his ADHD medication.
Halpern experienced a severe reaction to this medication
during the spring of his second year of school. He first
informed the Medical School of a potential problem in March
2006, when he asked to postpone his Step One Exam. After
Halpern presented a doctor’s note explaining that he was suf-
fering an adverse reaction to medication, the Medical School
approved Halpern’s request to delay the exam until May
2006. In May, Halpern asked to delay the exam further, ini-
tially because of car problems. After the school informed him
that this was an insufficient reason and that the school was
unable to provide him with an alternate vehicle as he had
requested, he sought and received an additional medical post-
ponement. He successfully took the Step One Exam in June
2006.
From June 2006 to August 2006, Halpern participated in an
internal medicine clinical rotation. It is undisputed his perfor-
mance in this rotation was deficient. His evaluation indicates
he had numerous problems, including a below-average fund
of medical knowledge and difficulty forming differential
HALPERN v. WAKE FOREST UNIVERSITY 5
diagnoses. His "largest obstacle," however, "was his frequent
lapses in professionalism": He was resistant to feedback,
lacked interpersonal skills, and was absent without permission
for more than one week. Additionally, Halpern failed to use
an electronic log system, and he resisted efforts to help cor-
rect what he insisted was a technical problem, claiming that
he had "more important things to do, like see patients." Aca-
demic Computing staff ultimately concluded that he was
refusing to enter the necessary data, thereby preventing staff
and faculty from recording feedback on his performance.
After failing this rotation, Halpern met with Dr. Ernest and
revealed that he had not slept in twelve days. Shortly thereaf-
ter, Halpern went on medical leave to address the severe side
effects of his medications.
Halpern returned to the Medical School in February 2007.
During conversations with Dr. Ernest discussing his return to
rotations, Halpern indicated that he might seek accommoda-
tions for his medication-related insomnia, but he did not
reveal his ADHD diagnosis. Dr. Ernest suggested that Halp-
ern meet with each clerkship director prior to beginning a
rotation to discuss their policy regarding absences, but he
noted that some of the accommodations Halpern want-
ed—including the ability to call out of work without prior
notice if he had been unable to sleep—likely would be infea-
sible. Dr. Ernest explained that, like practicing physicians,
medical students were expected to provide advance notice of
absences whenever possible and to coordinate coverage for
patient care. Halpern reports that he felt discouraged from
seeking an accommodation, and he failed to submit a formal
request for any accommodation. In this meeting with Dr.
Ernest, Halpern signed an acknowledgement that he was on
"Academic or Professional Probation" as a result of failing a
rotation.
Halpern resumed clinical rotations in April 2007. From
April 2007 to October 2008, he successfully completed ten
clinical rotations. The evaluations for these rotations show he
6 HALPERN v. WAKE FOREST UNIVERSITY
received either passing or honors marks in the "Patient Rap-
port/Professionalism" category, and many of the comments
regarding his performance were positive. But, these records
also reveal several incidents of unprofessional behavior in
connection with his rotations. His neurology evaluation noted
he missed a required lecture with the clerkship director. He
also failed to appear for a family medicine examination in
October 2007 and did not respond when paged. Although Dr.
Ernest recommended that the family medicine faculty give
him a failing grade for this exam, they permitted him to take
it at a later date. The evaluation of his obstetrics/gynecology
(OB/GYN) rotation was particularly critical. The evaluator
reported Halpern had difficulty with constructive criticism
and recommended that he "[b]e more humble," "accept feed-
back graciously," and "[r]ealize that rules apply to [him] as
well as everyone else."
His interaction with staff members revealed more, and
more acute, problems with professionalism. In April 2007,
shortly after his return from medical leave, he paced back and
forth in the financial aid office for forty-five minutes stating
that someone should give him a scholarship to become a
trauma surgeon. The financial aid director reported this
bizarre behavior made her "very nervous."
In December 2007, Halpern requested, for the first time, an
accommodation for his ADHD—specifically, testing accom-
modations for a surgery examination. He emailed this request
to Dr. Ernest. Although Dr. Ernest informed him that the
school required him to meet with a faculty member prior to
receiving accommodations, he repeatedly sought to receive
accommodations without first attending such a meeting. Halp-
ern neglected to produce documentation of his disability until
the day of the exam; nevertheless, the Medical School pro-
vided the requested accommodations.
Halpern failed to respond in October 2008 to repeated
requests from student services staff that he review the "Dean’s
HALPERN v. WAKE FOREST UNIVERSITY 7
Letter" to be mailed out with his residency applications. Sev-
eral hours after the deadline to respond had passed, he
appeared at the student services office, "rude[ly]" insisting
that the letter contained numerous errors and expressing dis-
belief that the staff member responsible for the letter was not
there.
Finally, in November 2008, Halpern failed to send letters
of appreciation to scholarship donors, despite numerous
reminders. Although typically this would not have resulted in
expulsion, because Halpern was on probation due to his fail-
ure of the internal medicine rotation, the Medical School
referred his file to the Student Progress and Promotions Com-
mittee (SPPC), which makes disciplinary recommendations to
the Medical School’s dean. A student may appeal the SPPC’s
recommendation to the Academic Appeals Committee, but the
dean of the Medical School makes the ultimate determination
regarding discipline.
Halpern appeared before the SPPC in December 2008. Dur-
ing this appearance, he maintained that his medical condition
did not affect his ability to "perform optimally in the medical
curriculum." He further asserted his belief that the incidents
of unprofessionalism "were isolated" and that he had "ad-
dressed them." After reviewing his records, the SPPC voted
to recommend Halpern’s dismissal based on a pattern of
unprofessional behavior.
Halpern appealed to the Academic Appeals Committee
through a letter to Associate Dean of Education, Dr. K. Pat-
rick Ober. Halpern wrote that he was aware of his "behavioral
tendencies"—including excessive defensiveness, intolerance
of others, and rudeness—which he attributed both to his
ADHD and to cultural differences between Israel, where he
grew up, and the United States. Halpern suggested a "special
remediation" plan including a comprehensive assessment by
a treatment team, participation in a program for distressed
physicians, continuing treatment by his psychiatrist, and
8 HALPERN v. WAKE FOREST UNIVERSITY
"strict probation." He also submitted letters from his psychia-
trist, Dr. Doreen Hughes, who ascribed his behavior to
ADHD, an anxiety disorder, and childhood exposure to
trauma, family modeling, and first-hand accounts of the Holo-
caust. After reviewing these materials and Halpern’s record,
the Academic Appeals Committee upheld the SPPC’s recom-
mendation.
Halpern then appealed to the Dean of the Medical School,
Dr. William Applegate. Dr. Applegate considered and
rejected alternatives to dismissal, including Halpern’s sug-
gested plan. Dr. Applegate explained that he believed, in light
of the pattern of behavior Halpern engaged in both before and
after his medical leave, Halpern inevitably would revert to
unprofessional conduct. Particularly concerning was Halp-
ern’s treatment of staff members. While Halpern might be
able to control his behavior towards other physicians, Dr.
Applegate worried that the incidents with Medical School
staff indicated he would treat nonphysician health care pro-
viders in a disrespectful and unprofessional manner. Such an
attitude would undermine the team-centered approach to
health care that Wake Forest sought to instill and would have
a deleterious effect on patient care. Concluding that no
accommodation could adequately alleviate these concerns, Dr.
Applegate adopted the SPPC’s recommendation of dismissal.
C.
Halpern brought suit in the Middle District of North Caro-
lina, alleging that his dismissal violated the Rehabilitation Act
and ADA because the Medical School failed to make reason-
able accommodations for his disability. The district court,
adopting the magistrate judge’s report and recommendation,
granted summary judgment in favor of Wake Forest on the
ground that Halpern was not "otherwise qualified" as a medi-
cal student because demonstrating professionalism was a fun-
damental aspect of the Medical School’s program. The court
further held that Halpern’s proposed accommoda-
HALPERN v. WAKE FOREST UNIVERSITY 9
tion—obtaining therapeutic treatment, participating in a dis-
tressed physicians program, and continuing as a student on
strict probation—was unreasonable "because of the uncer-
tainty of the duration and the prospects for success of such
behavior modification efforts."
II.
We review de novo an order granting summary judgment.
Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc).
We will affirm the grant of summary judgment if, viewing the
evidence and drawing all reasonable inferences therefrom in
favor of the nonmovant, there are no disputed material facts
and the moving party is entitled to judgment as a matter of
law. Id.A.
Wake Forest, as a "program . . . receiving Federal financial
assistance," is subject to the Rehabilitation Act of 1973. 29
U.S.C. § 794(a). In addition, because it is an "undergraduate,
or postgraduate private school, or other place of education,"
42 U.S.C. § 12181(7)(J), Wake Forest qualifies as a "public
accommodation" subject to Title III of the ADA.2 See, e.g.,
2
In his complaint, Halpern alleged that Wake Forest violated Title II,
which regulates public entities, rather than Title III, of the ADA. He con-
tends, however, that his claim was merely mislabeled and that it was clear
he was seeking to bring a Title III claim. Because the correction of the
legal basis for the claim would not prejudice Wake Forest, he argues, we
should treat this claim as arising under Title III. See Labram v. Havel, 43
F.3d 918, 920 (4th Cir. 1995) (holding that the mislabeling of a claim,
even if "reflect[ing] a flat misapprehension by counsel respecting a
claim’s legal basis," does not warrant dismissal "so long as any needed
correction of legal theory will not prejudice the opposing party"). We need
not decide at this time whether to construe Halpern’s complaint as stating
a Title III claim. As we explain, the "otherwise qualified" element is iden-
tical for claims brought under the Rehabilitation Act and the ADA, and
Wake Forest would be entitled to summary judgment on any Title III
10 HALPERN v. WAKE FOREST UNIVERSITY
Singh v. George Wash. Univ. Sch. of Med. & Health Scis., 508
F.3d 1097 (D.C. Cir. 2007) (applying Title III to a private
medical school); Kaltenberger v. Ohio Coll. of Podiatric
Med., 162 F.3d 432 (6th Cir. 1998) (applying Title III to a pri-
vate podiatric college).
The Rehabilitation Act precludes federal grantees from
excluding, denying benefits to, or discriminating against any
"otherwise qualified individual . . . solely by reason of her or
his disability." 29 U.S.C. § 794(a). Title III of the ADA pro-
vides, in relevant part, "No individual shall be discriminated
against on the basis of disability in the full and equal enjoy-
ment of the goods, services, facilities, privileges, advantages,
or accommodations of any place of public accommodation."
42 U.S.C. § 12182(a). This section goes on to define "dis-
crimination" as including "a failure to make reasonable modi-
fications" that are "necessary" to provide a disabled individual
with such full and equal enjoyment, "unless the entity can
demonstrate that making such modifications would funda-
mentally alter the nature of such goods, services, facilities,
privileges, advantages, or accommodations." Id.§ 12182(b)(2)(A)(ii).
To the extent possible, we construe the ADA and Rehabili-
tation Act to impose similar requirements. See Freilich v.
Upper Chesapeake Health, Inc., 313 F.3d 205, 214 (4th Cir.
2002); Ennis v. Nat’l Ass’n of Bus. & Educ. Radio, Inc., 53
F.3d 55, 57 (4th Cir. 1995). Thus, despite the different lan-
guage these statutes employ, they require a plaintiff to demon-
strate the same elements to establish liability. See Bowers v.
NCAA, 475 F.3d 524, 535 n.12 (3d Cir. 2007) (examining
claim because the evidence in the record establishes that Halpern, with or
without reasonable accommodations, was not otherwise qualified to par-
ticipate in the Medical School’s Doctor of Medicine program. Accord-
ingly, we assume without deciding that Halpern has properly asserted a
claim under Title III of the ADA.
HALPERN v. WAKE FOREST UNIVERSITY 11
claims under the Rehabilitation Act and Titles II and III of the
ADA). In the context of a student excluded from an educa-
tional program, to prove a violation of either Act, the plaintiff
must establish that (1) he has a disability, (2) he is otherwise
qualified to participate in the defendant’s program,3 and (3) he
was excluded from the program on the basis of his disability.
See Constantine v. Rectors & Visitors of George Mason
Univ., 411 F.3d 474, 498 (4th Cir. 2005) (applying the Reha-
bilitation Act and Title II of the ADA); see also Kaltenberger,
162 F.3d at 435 (applying the Rehabilitation Act and Title III
of the ADA). The two statutes differ only with respect to the
third element, causation. To succeed on a claim under the
Rehabilitation Act, the plaintiff must establish he was
excluded "solely by reason of" his disability; the ADA
requires only that the disability was "a motivating cause" of
the exclusion. Baird ex rel. Baird v. Rose, 192 F.3d 462,
468–69 (4th Cir. 1999).
3
Title III, unlike Title II, of the ADA does not explicitly include the
"qualified individual" language used in the Rehabilitation Act. See 42
U.S.C. § 12182(a). Nevertheless, Title III implicitly incorporates the
requirement that a claimant be "otherwise qualified" because "the question
of who is ‘otherwise qualified’ and what actions constitute ‘discrimina-
tion’" are "two sides of a single coin; the ultimate question is the extent
to which a [defendant] is required to make reasonable modifications in its
programs." Alexander v. Choate, 469 U.S. 287, 299 n.19 (1985); see also
Mershon v. St. Louis Univ., 442 F.3d 1069, 1076 (8th Cir. 2006) (observ-
ing that "in most circumstances, no qualifications are required to enjoy a
public accommodation," but in the education context, "the ‘otherwise
qualified’ idea is implicit in Title III’s acknowledgment . . . that requested
modifications need not be provided if they will fundamentally alter the
nature of the program"); Bercovitch v. Baldwin Sch., Inc., 133 F.3d 141,
154 (1st Cir. 1998) (finding "little difference" between ADA Titles I, II,
and III "because many of the issues that arise in the ‘qualified’ analysis,
also arise in the context of the ‘reasonable modifications’"). In other
words, if a person, due to his disability, requires a modification to meet
the essential requirements to participate in an educational program and if
the necessary modification is unreasonable, then that person is not "quali-
fied" to participate in the program. See Bercovitch, 133 F.3d at 154.
12 HALPERN v. WAKE FOREST UNIVERSITY
Wake Forest concedes that Halpern has satisfied the first
element. His ADHD and anxiety disorder constitute disabili-
ties giving rise to protection under the Rehabilitation Act and
ADA.4 Accordingly, we consider whether the district court
erred in determining as a matter of law that Halpern was not
"otherwise qualified" to participate in the Medical School’s
program.
B.
A "qualified" individual is one "who, with or without rea-
sonable modifications to rules, policies, or practices, . . .
meets the essential eligibility requirements" for participation
in a program or activity. Constantine, 411 F.3d at 498 (quot-
ing 42 U.S.C. § 12131(2)) (internal quotation marks omitted);
see also Se. Cmty. Coll. v. Davis, 442 U.S. 397, 406 (1979)
("An otherwise qualified person is one who is able to meet all
of a program’s requirements in spite of his handicap."). A
plaintiff asserting a violation of the ADA or Rehabilitation
Act bears the burden to establish that he is qualified. Tyndall
v. Nat’l Educ. Ctrs., Inc., 31 F.3d 209, 213 (4th Cir. 1994).
To determine whether a plaintiff has satisfied this burden, a
court must decide whether he has presented sufficient evi-
dence to show (1) that he could satisfy the essential eligibility
requirements of the program, i.e., those requirements "‘that
4
Wake Forest suggests that the side effects of medications Halpern took
to treat these conditions should not be considered aspects of his disability
and, as a result, do not give rise to protection under federal law. The cases
cited by Wake Forest in support of this argument, however, are inapposite
because they address treatment and medication for nondisabling condi-
tions, so those courts were determining whether the side effects of medical
treatment could give rise to a disability that was not otherwise present.
See, e.g., Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 186–87 (3d
Cir. 2010); Hill v. Kan. City Area Transp. Auth., 181 F.3d 891, 894 (8th
Cir. 1999). It is unnecessary to reach this issue because Halpern has failed
to establish that he is otherwise qualified to participate in the Medical
School’s program. Thus, for purposes of this appeal, we assume arguendo
that the side effects Halpern suffered, including insomnia and irritability,
fall within his disability.
HALPERN v. WAKE FOREST UNIVERSITY 13
bear more than a marginal relationship to the [program] at
issue,’ and (2) if not, whether ‘any reasonable accommodation
by the [defendant] would enable’" the plaintiff to meet these
requirements.5 Id. (quoting Chandler v. City of Dallas, 2 F.3d
1385, 1393–94 (5th Cir. 1993)).
The parties dispute whether we should accord deference to
the Medical School’s professional judgment regarding Halp-
ern’s ability to satisfy the School’s essential eligibility
requirements. In the context of due-process challenges, the
Supreme Court has held that a court should defer to a school’s
professional judgment regarding a student’s academic or pro-
fessional qualifications. See Regents of the Univ. of Mich. v.
Ewing, 474 U.S. 214, 225 (1985) (stating that a court may not
override a school’s decision "unless it is such a substantial
departure from accepted academic norms as to demonstrate
that the person or committee responsible did not actually
exercise professional judgment"); Bd. of Curators of the Univ.
of Mo. v. Horowitz, 435 U.S. 78, 92 (1978) ("Courts are par-
ticularly ill-equipped to evaluate academic performance.").
Based on these cases, our sister circuits have overwhelm-
ingly extended some level of deference to schools’ profes-
sional judgments regarding students’ qualifications when
addressing disability discrimination claims. See Powell v.
Nat’l Bd. of Med. Exam’rs, 364 F.3d 79, 88 (2d Cir. 2004);
Amir v. St. Louis Univ., 184 F.3d 1017, 1028 (8th Cir. 1999);
Zukle v. Regents of the Univ. of Cal., 166 F.3d 1041, 1047–48
(9th Cir. 1999); Kaltenberger, 162 F.3d at 436; McGregor v.
La. State Univ. Bd. of Supervisors, 3 F.3d 850, 859 (5th Cir.
1993); Wynne v. Tufts Univ. Sch. of Med., 932 F.2d 19, 25
5
"The standard for reasonableness under the ADA does not differ from
the one employed under the Rehabilitation Act," even though "Title III of
the ADA uses the term ‘reasonable modification’ rather than ‘reasonable
accommodation,’" the term utilized in Rehabilitation Act doctrine. For-
tyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1083 (9th Cir. 2004)
(quoting Wong v. Regents of the Univ. of Cal., 192 F.3d 807, 816 n.26 (9th
Cir. 1999)) (internal quotation marks omitted).
14 HALPERN v. WAKE FOREST UNIVERSITY
(1st Cir. 1991) (en banc); Anderson v. Univ. of Wis., 841 F.2d
737, 741 (7th Cir. 1988); see also Millington v. Temple Univ.
Sch. of Dentistry, 261 F. App’x 363, 367 (3d Cir. 2008). And
we have observed in dicta that, in general, "great deference to
a school’s determination of the qualifications of a hopeful stu-
dent" is appropriate "because courts are particularly ill-
equipped to evaluate academic performance." Davis v. Univ.
of N.C., 263 F.3d 95, 101–02 (4th Cir. 2001) (dictum) (quot-
ing Horowitz, 435 U.S. at 92) (internal quotation marks omit-
ted).
Because we are likewise at a comparative disadvantage in
determining whether Halpern is qualified to continue in the
Doctor of Medicine program and whether his proposed
accommodations would effect substantial modifications to the
Medical School’s program, we accord great respect to Wake
Forest’s professional judgments on these issues. But, in doing
so, we must take care "not to allow academic decisions to dis-
guise truly discriminatory requirements," Zukle, 166 F.3d at
1048, so we assiduously review the record to ensure that the
educational institution has "conscientiously carried out [its]
statutory obligation" to provide reasonable accommodations
to persons with disabilities, id. (quoting Wynne, 932 F.2d
25–26) (internal quotation marks omitted).
Adopting an appropriately deferential view, we find that
professionalism was an essential requirement of the Medical
School’s program and that, without an accommodation, Halp-
ern could not satisfy this requirement. Throughout the period
of Halpern’s enrollment at Wake Forest, the Medical School
identified professionalism as a fundamental goal of its educa-
tional program, and it required that students demonstrate pro-
fessional behavior and attitudes prior to graduating. The
Student Bulletin explicated different aspects of professional
behavior that the school sought to instill, such as the ability
to collaborate with others and to admit mistakes gracefully.
As Dr. Applegate explained in his affidavit, the Medical
School emphasized professionalism based on evidence that
HALPERN v. WAKE FOREST UNIVERSITY 15
inappropriate and disruptive behavior by physicians increases
adverse patient outcomes.
Halpern does not dispute that the Medical School’s profes-
sionalism requirement is essential. Instead, he maintains that
because he received passing marks in professionalism in his
clinical rotations after returning from medical leave, a ques-
tion of fact exists as to whether he satisfied the requirement.
This argument, however, fails to take into account Halpern’s
treatment of staff both before and after his medical leave. We
accept Dr. Applegate’s reasonable inference that Halpern’s
unprofessional treatment of staff, in contrast with his behavior
towards faculty, suggests that he would interact poorly with
health care providers who are not physicians, thereby under-
mining the team approach to health care. Halpern’s contention
also ignores the instances of unprofessional conduct reflected
in his clinical evaluations, such as his resistance to construc-
tive criticism during his OB/GYN rotation and failure to
appear for a family medicine exam. Although, in isolation,
these may not have warranted his evaluators giving him fail-
ing grades in professionalism, the school reasonably consid-
ered them as part of an ongoing pattern of unprofessional
behavior.
Halpern’s own admissions support the conclusion that
without an accommodation he is unqualified to participate in
the Doctor of Medicine program. In his letters appealing the
SPPC’s recommendation of dismissal, Halpern acknowledged
his problematic behavioral tendencies. He did not argue that
the professionalism requirement was nonessential or that he
should be exempted. Instead, he requested the opportunity to
undergo treatment and demonstrate he could satisfy the
School’s professionalism standards. Similarly, when deposed,
he conceded that his past behavior had been perceived as
rude, and he stated that the Medical School should not permit
him to become a doctor if he was rude or hostile.
In light of the extensive evidence of Halpern’s unprofes-
sional behavior—both before and after his medical
16 HALPERN v. WAKE FOREST UNIVERSITY
leave—and the potential for such behavior to undermine
patient care, we have no difficulty concluding that, absent an
accommodation, Halpern was not "otherwise qualified" for
the Medical School’s program. Therefore, we next consider
whether there was a reasonable accommodation available by
which Halpern would have become qualified.
C.
Federal law mandates that federal grantees and public
accommodations make "reasonable," but not "substantial" or
"fundamental," modifications to accommodate persons with
disabilities. See Alexander, 469 U.S. at 300. A modification
"is not reasonable if it either imposes undue financial and
administrative burdens . . . or requires a fundamental alter-
ation in the nature of the program." Sch. Bd. v. Arline, 480
U.S. 273, 287 n.17 (1987) (citation omitted) (quoting Davis,
442 U.S. at 410, 412) (internal quotation marks omitted); see
also PGA Tour, Inc. v. Martin, 532 U.S. 661, 683 n.38 (2001)
(requiring that a modification be reasonable, be necessary,
and not fundamentally alter the nature of the program). A
modification to "an essential aspect" of the program consti-
tutes a "fundamental alteration" and, therefore, is an unrea-
sonable accommodation. PGA Tour, 532 U.S. at 682–83.
Although determination of the reasonableness of a proposed
modification is often fact-specific, a court may grant sum-
mary judgment in favor of a defendant if the plaintiff fails to
present evidence from which a jury may infer that the accom-
modation is "reasonable on its face, i.e., ordinarily or in the
run of cases," or if the defendant establishes as a matter of law
that the proposed modification will cause "undue hardship in
the particular circumstances." U.S. Airways, Inc. v. Barnett,
535 U.S. 391, 401–02 (2002).
As discussed above, we find that the requirement that stu-
dents demonstrate professional behavior is an essential aspect
of Wake Forest’s Doctor of Medicine program. Accordingly,
Halpern could not reasonably seek to avoid or lessen the pro-
HALPERN v. WAKE FOREST UNIVERSITY 17
fessionalism requirement; rather, he must show that a reason-
able accommodation would have permitted him to satisfy this
criterion. He contends that his proposed special remediation
plan, which included ongoing psychiatric treatment, participa-
tion in a program for distressed physicians, and continuing in
the Medical School on strict probation, constituted a reason-
able accommodation for his disability through which he could
have met Wake Forest’s standards for professionalism. We
disagree. For the following reasons, we conclude that Halp-
ern’s proposed special remediation plan was unreasonable on
its face and, as a result, that the district court properly granted
summary judgment in favor of Wake Forest.
First, Halpern’s request for an accommodation was
untimely. The school was not obligated to accommodate Hal-
pern’s disability until he "provided a proper diagnosis . . . and
requested specific accommodation." Kaltenberger, 162 F.3d
at 437. Halpern failed to inform Wake Forest that he was dis-
abled until December 2007, and when he did so, he requested
only testing accommodations. Even when he appeared before
the SPPC, he maintained that his medical conditions did not
impact his ability to participate in the Medical Schoool. He
suggested, for the first time, that his behavioral problems
were manifestations of a disability in his letter to Dr. Ober
appealing the SPPC’s recommendation of dismissal.
We have previously observed that "misconduct—even mis-
conduct related to a disability—is not itself a disability" and
may be a basis for dismissal. Martinson v. Kinney Shoe Corp.,
104 F.3d 683, 686 n.3 (4th Cir. 1997); see also Tyndall, 31
F.3d at 214–15 (finding the dismissal of an employee for
attendance problems did not constitute discrimination, even if
her disability caused her absences); Little v. FBI, 1 F.3d 255,
259 (4th Cir. 1993) (holding that employee could be termi-
nated for intoxication, although it was related to alcoholism,
a disability). By the time Halpern requested that the Medical
School implement his special remediation plan, he had
already engaged in numerous unprofessional acts that war-
18 HALPERN v. WAKE FOREST UNIVERSITY
ranted his dismissal, including acting abusively towards staff,
multiple unexcused absences, repeated failure to meet dead-
lines, and tardiness. Thus, Halpern sought not a disability
accommodation, but "a second chance to better control [his]
treatable medical condition." Hill v. Kan. City Area Transp.
Auth., 181 F.3d 891, 894 (8th Cir. 1999). This, however, "is
not a cause of action under the ADA." Id. A school, if
informed that a student has a disability with behavioral mani-
festations, may be obligated to make accommodations to help
the student avoid engaging in misconduct. But, the law does
not require the school to ignore misconduct that has occurred
because the student subsequently asserts it was the result of
a disability. Halpern’s argument that he was owed an opportu-
nity to continue at the Medical School and correct his misbe-
havior is, therefore, without merit.
Second, the indefinite duration and uncertain likelihood of
success of Halpern’s proposed accommodation renders it
unreasonable. In Myers v. Hose, 50 F.3d 278 (4th Cir. 1995),
we held that the Rehabilitation Act and ADA do not require
an employer to give a disabled employee "an indefinite period
of time to correct [a] disabling condition" that renders him
unqualified. Id. at 280. The plaintiff in Myers had worked as
a bus driver until health problems prevented him from passing
mandatory physical examinations. See id. at 280–81. After his
forced retirement, he filed suit, arguing that federal disability
laws compelled his employer to provide a grace period to treat
his medical conditions. Id. at 282. We rejected this accommo-
dation as unreasonable because it required the employer "to
wait indefinitely" for an uncertain cure. Id. at 283. A "reason-
able accommodation," we declared, "is by its terms most logi-
cally construed as that which presently, or in the immediate
future, enables the employee to perform the essential func-
tions of the job in question." Id.Likewise, the Rehabilitation Act and ADA do not obligate
a school to permit a student to continue in an educational pro-
gram with the hope that at some unknown time in the future
HALPERN v. WAKE FOREST UNIVERSITY 19
he will be able to satisfy the program’s essential requirements.
At the time Halpern proposed the special remediation plan, he
had already delayed his graduation by one year due to his
medical leave, and he was seeking to further extend his medi-
cal education to have an opportunity to demonstrate his ability
to behave professionally. Neither Halpern nor his expert could
specify a time at which his treatment would be complete;
indeed, they acknowledged there was no guarantee Halpern’s
treatment plan would be successful. Consequently, it was
unreasonable to demand that Wake Forest wait to determine
if and when the plan would enable Halpern to meet its profes-
sionalism standards.
Finally, we reject Halpern’s argument that even if his pro-
posed accommodation was unreasonable, Wake Forest vio-
lated the ADA by failing to engage in an "interactive process
to identify a reasonable accommodation." Haneke v. Mid-Atl.
Capital Mgmt., 131 F. App’x 399, 400 (4th Cir. 2005) (per
curiam). An interactive effort to identify an accommodation
would not have corrected the untimeliness of Halpern’s
request or erased his record of prior misconduct. Dr. Apple-
gate’s affidavit indicates that he carefully considered alterna-
tives to dismissal, but, because Halpern had consistently
reverted to unprofessional conduct even after the Medical
School’s officials attempted to intervene, he was unable to
identify any accommodation that could ensure Halpern would
not engage in such behavior as a practicing physician. Thus,
he concluded that all possible accommodations permitting
Halpern to remain in the program would be unreasonable
because they would allow Halpern to graduate with a medical
degree.
We disagree with Halpern’s contention that this conclusion
reflects stereotypes that persons who experience depression or
anxiety disorders are unable to change or modify their behav-
ior. We believe, instead, that Dr. Applegate’s decision was
based on a careful consideration of Halpern’s student record
and, in particular, the fact that, despite numerous attempts by
20 HALPERN v. WAKE FOREST UNIVERSITY
Medical School faculty to assist Halpern in rectifying his con-
duct, he continually lapsed into problematic practices.
Although Halpern failed to disclose his ADHD diagnosis until
December 2007 and did not request accommodations for
behavioral manifestations of his disability until after the SPPC
recommended his dismissal, the Medical School made signifi-
cant efforts throughout the period of Halpern’s enrollment to
help him satisfy its academic and professional standards. The
record shows that Dr. Ernest, in his role as Associate Dean of
Student Services, often interceded when Halpern had an alter-
cation or incident with faculty or staff and attempted to coun-
sel Halpern on appropriate behavior. In addition, the School
granted Halpern the medical leave and testing accommoda-
tions that he requested. Despite these efforts, Halpern’s lack
of professionalism remained an issue. Where a professional
school has reasonably determined based on an identifiable
pattern of prior conduct that a student is unfit to join his cho-
sen profession, federal law does not obligate the school to
allow that student to remain in and graduate from its educa-
tional program. As the evidence in the record amply justifies
Dr. Applegate’s conclusion, we find that the Medical School
did not violate the Rehabilitation Act or the ADA.
III.
Because, with or without reasonable accommodations, Hal-
pern is unqualified for Wake Forest’s Doctor of Medicine
program, we affirm the district court’s grant of summary
judgment.
AFFIRMED