Olivia Neal v. East Carolina University ( 2022 )

USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 1 of 40
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-2153
OLIVIA NEAL,
Plaintiff – Appellant,
v.
EAST CAROLINA UNIVERSITY,
Defendant – Appellee,
and
UNIVERSITY OF NORTH CAROLINA,
Defendant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. W. Earl Britt, Senior District Judge. (5:17-cv-00186-BR)
Argued: September 14, 2022 Decided: November 4, 2022
Before KING, AGEE, and THACKER, Circuit Judges.
Affirmed by published opinion. Judge Agee wrote the opinion in which Judge King and
Judge Thacker joined.
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 2 of 40
ARGUED: Glenn A. Barfield, HAITHCOCK, BARFIELD, HULSE & KINSEY, PLLC,
Goldsboro, North Carolina, for Appellant. Vanessa N. Totten, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. ON BRIEF:
Joshua H. Stein, Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellee.
2
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 3 of 40
AGEE, Circuit Judge:
After East Carolina University (“ECU”) dismissed Olivia Neal from its School of
Social Work’s Master’s Degree program, Neal sued the university alleging that its decision
discriminated against her in violation of the Americans with Disabilities Act (“ADA”). See
42 U.S.C. § 12132; see also ADA Amendments Act of 2008, Pub. L. No. 110-325, 122Stat. 3553. The district court disagreed and granted summary judgment to ECU based on
its conclusion that Neal failed to come forward with evidence creating a genuine issue of
material fact to support two elements of a prima facie case of discrimination. It determined
that the record did not show that (1) she was “otherwise qualified to participate in ECU’s”
program or (2) ECU dismissed her “on the basis of” her disability. Neal v. Univ. of N.C.,
No. 5:17-CV-186-BR, 2020 WL 5775145, at *6–7 (E.D.N.C. Sept. 28, 2020). Neal
challenges both grounds on appeal. For the reasons set forth below, we affirm the district
court’s judgment in favor of ECU.
I.
To begin we provide a brief overview of the law governing ADA discrimination
claims in the context of collegiate studies. Title II of the ADA prohibits public universities
such as ECU from excluding individuals from their programs “by reason of” their physical
or mental disabilities. 42 U.S.C. § 12132. Plaintiffs can prove their claim by pointing to
direct evidence of discrimination or, more commonly, by using the three-step analysis
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This burden-
shifting analysis requires a plaintiff first to establish, by a preponderance of the evidence,
3
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 4 of 40
a prima facie case of discrimination. Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248,
252–53 (1981). Once a plaintiff meets that initial burden, the burden shifts to the defendant
to show that its decision was made “for a legitimate, nondiscriminatory reason,” and if that
hurdle is crossed, then the presumption of discrimination is rebutted and the burden returns
to the plaintiff to prove that the university’s proffered reason was pretext for
discrimination. Id. at 253.
To state a prima facie case of ADA discrimination in the context of a university’s
academic programs, a “plaintiff must establish that (1) [s]he has a disability, (2) [s]he is
otherwise qualified to participate in the defendant’s program, and (3) [s]he was excluded
from the program on the basis of h[er] disability.” Halpern v. Wake Forest Univ. Health
Scis., 669 F.3d 454, 461 (4th Cir. 2012) (footnote omitted).
As for the first element, a plaintiff has three paths of proving she has a disability. 42
U.S.C. § 12102(1). First, she can prove that she has “a physical and mental impairment that
substantially limits one or more major life activities” as those terms are further defined in
statutes and regulations. Id. Second, she can prove that she has “a record of such an
impairment.” Id. Or, third, she can prove that the defendant “regarded [her] as having such
an impairment.” Id.The second element of the prima facie case—proving that the plaintiff is “otherwise
qualified” to participate in the program—requires her to show that she is someone “who,
with or without reasonable modifications to rules, policies, or practices, . . . meets the
essential eligibility requirements for participation in a program or activity.” Halpern, 669
F.3d at 462 (alteration in original) (citation omitted). Because courts are “particularly ill-
4
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 5 of 40
equipped to evaluate academic performance,” they generally afford “some level of
deference to schools’ professional judgments regarding students’ qualifications” for
participating in their academic programs. Id. at 463 (cleaned up).
The third element of the prima facie case is causation, and in the ADA context, the
Court has held that proving discrimination “on the basis of” disability “requires only that
the disability was ‘a motivating cause’ of the” university’s decision. Id. at 462 (emphasis
added).
II.
With this baseline for understanding Neal’s claim, we turn to the record, reciting the
underlying facts under the same principles that constrained the district court when
assessing whether to award summary judgment. In short, for purposes of appeal, we
examine the facts in the best light for Neal, “believ[ing]” her evidence and drawing “all
justifiable inferences” in her favor. Haulbrook v. Michelin N. Am., 252 F.3d 696, 702 (4th
Cir. 2001); see Fed. R. Civ. P. 56(a).
A. ECU’s Master’s of Social Work Program
ECU’s School of Social Work offers a Master’s of Social Work Degree Program
(the “MSW Program”), which consists of both traditional classroom courses and an
internship (referred to as “field instruction”). For the latter component, the MSW Program
places students with an outside agency or organization and provides multiple levels of
coursework and oversight for which students receive one course grade. Field instruction
consumes a significant portion of MSW Program students’ time, as they are generally
5
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 6 of 40
expected to work three days a week for 8 hours a day (24 hours per week) while completing
other program requirements the rest of the week. An MSW Program faculty member serves
as the liaison with the agency or organization and also oversees a weekly seminar course
students must attend. A “field instructor” serves as an overarching supervisor for the
student’s field work. The MSW Program typically recruits licensed clinical social workers
in the community to serve in this role. Field instructors typically meet weekly with their
students to provide regular individualized guidance. Lastly, an employee at the agency or
organization serves as a student’s “task supervisor” and oversees the student’s day-to-day
work. Students who graduate from the MSW Program may then complete a state’s
licensure process for social workers. J.A. 877; see also N.C. Gen. Stat. § 90B-7 (2012)
(describing the qualifications for “Certified Master Social Worker” and “Licensed Clinical
Social Worker,” both of which include having at least a master’s degree from a college or
university with an accredited social work program).
Because the MSW Program is a professional degree, it serves a “gate-keeping
function” to “graduate[] only persons who will make competent practitioners.” J.A. 878–
79. In furtherance of this function, ECU will “not graduate a person who ha[s] exhibited
behavior that could pose a danger to the well-being of vulnerable social work clients.” J.A.
878–79. Relatedly, “a student’s academic performance is not judged solely on grades.
Academic performance includes a student’s behaviors, including whether they are being
disruptive, unprofessional, or failing to attend classes.” J.A. 881. Consistent with these
requirements, the MSW Program holds its students not just to ECU’s code of conduct, but
also to the standards set out in the National Association of Social Workers’ (NASW) Code
6
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 7 of 40
of Ethics and the Council on Social Work’s core competencies for social workers. J.A.
881–82. The MSW Program’s Field Manual provided that “[u]nprofessional conduct or a
breach of the NASW Code of Ethics may be deemed to be serious enough to terminate
field work and the social work program.” J.A. 881. The MSW Program reserved the
right to remove a student from a field placement and/or the program if, in the
opinion of the faculty, the student lacks the maturity, judgment, or
professionalism to function in the field of social work. If it is recommended
that a student withdraw from field [instruction], s/he cannot be readmitted
during that semester. The student must repeat the full semester, including a
field experience, in order to graduate.
J.A. 389.
When concerns about a student’s performance in the MSW Program rise beyond
those capable of being adequately addressed between an individual faculty member and
the student, ECU authorizes the convening of an Admissions & Retention Committee
(“A&R Committee”). J.A. 883. The A&R Committee’s goal is to “help[] a student
determine a remedial course of action to ensure successful completion of the program,”
including “suggestions for improved performance,” clarifying both academic and
“nonacademic competencies expected of students,” and developing a strategy for
“thoughtful and professional” interactions with “instructors, classmates, colleagues, clients
and supervisors.” J.A. 883. An A&R Committee is also charged with recommending “a
specific course of action” for students to follow and “has the authority to determine if those
[expectations] were met, and may terminate a student from the program if they were not.”
J.A. 883–84; 821 (2012–2013 Graduate Catalog: “[G]raduate advisory committees may
render judgments as to whether satisfactory progress is made toward the degree, taking into
7
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 8 of 40
account all aspects of academic performance and promise, not necessarily course work
alone. . . . Failure to meet programmatic/departmental standards may result in program
termination.”). As Professor Nancy Pierson, who was the Director of Field Education for
the MSW Program during the relevant time, put it,
when a student was having some difficulties or there were some issues or
problems that were affecting their success . . . in the program or the course
and internships in any way, we could have an [A&R Committee] meeting to
try to identify what was happening, what those difficulties might be and to
try to figure out a way to help that student take some remedial actions, some
change, some additional support and training so that they could be retained
if at all possible and complete their program.
J.A. 884.
B. Neal’s First Two Years in the MSW Program
Neal began her studies in the MSW Program in the Fall 2012 semester. 1 Her first
two semesters, she maintained a 3.8 and 4.0 GPA, respectively.
In her third semester (Fall 2013), Neal voluntarily withdrew from the MSW
Program. During her field instruction at a hospital that semester, a client attempted suicide
in Neal’s presence, which caused her intense trauma that, in hindsight, she states she did
not know how to process or discuss with others. Neal later explained that this incident,
combined with an abusive living situation at the time, led her to miss a significant amount
In her application’s personal statement, Neal disclosed that she’d been diagnosed
1
with ADHD. At no time did she request an accommodation based on that diagnosis and
her ADA claim does not allege discrimination on account of that condition.
8
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 9 of 40
of coursework. It also led to her eventual hospitalization for about two weeks during which
time she missed additional coursework. 2 Consequently, she voluntarily withdrew.
After Neal and her parents met with faculty members, Neal was permitted to re-
enroll in the MSW Program for the next semester (Spring 2014) despite the program’s
usual policy of requiring students who had withdrawn and wanted to return to do so at the
same time the following academic year to maintain continuity of training. At Neal’s
request, she was assigned to a different organization for field instruction, the House of
Fordham, which provides services to individuals needing assistance with food, housing,
and motherhood. For the Spring 2014 semester, Neal maintained a 4.0 GPA.
C. Neal’s Fall 2014 Semester
Several incidents in the Fall 2014 semester led the MSW Program to convene an
A&R Committee to meet with Neal about her behavior, performance, and continued
enrollment. 3 The problems the Committee identified varied, but included Neal often using
her phone during class for non-class purposes, being habitually tardy and leaving for
extended periods during class, turning in assignments late or not at all, and ignoring faculty
communications requesting responses. In addition, peers complained to faculty about
2
There’s no indication in the record that ECU was apprised of the full circumstances
surrounding Neal’s missed coursework or eventual hospitalization before her decision to
withdraw.
3
Neal’s Fall 2014 A&R Committee included its chairwoman Dr. Kerry Littlewood
(Assistant Director of ECU’s School of Social Work and Coordinator for the MSW
Program), Dr. Lena Carawan (an MSW Program professor), and Professor Nancy Pierson
(Director of Field Education for the MSW Program). Here and throughout this opinion,
individuals who were or are affiliated with ECU are identified by their titles at the time of
the described events.
9
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 10 of 40
Neal’s disruptive behavior and uncivil comments, as well as her method of participating in
team assignments (including taking a “my way or not at all” approach to group assignments
and failing to complete individual tasks assigned to her). During the field instruction
seminar, students expressed concern about sharing sensitive client information in front of
Neal, fearing that she would misuse it. In addition to individual professors addressing
concerns with Neal (to no effect), Dr. Carawan elected to split her seminar into two groups
so that those “most bothered” by Neal were separated from her. J.A. 782.
In addition, Neal’s field instructor—a social worker in the community, Michael
Herring—resigned from that role, leaving her without a necessary supervisor in that
component of her required coursework. 4
During a mandatory A&R Committee meeting, faculty reiterated to Neal that she
needed to improve her attendance, participation, and coursework because her “negative
behavior was having [a negative effect] on [her] ability to successfully complete the
curriculum.” J.A. 889. After Neal complained of various personal problems during the
meeting, Dr. Littlewood also recommended that she see ECU’s counseling services
program. Neal understood that one purpose of the meeting was to assess whether she would
be permitted to remain in the MSW Program and that her “failure to improve could result
4
The record does not contain any statement directly from Herring explaining why
he withdrew as Neal’s supervisor. And while statements appear from other MSW Program
faculty regarding their understanding about why he withdrew, Neal challenges those
statements as inadmissible hearsay and something about which a genuine issue of fact
exists. Because Herring’s reasons for withdrawing are not material to the district court’s
decision or our review, we need not rely on or recount that challenged material. It’s
undisputed that Herring withdrew from this role, an act that compromised Neal’s ability to
complete necessary components of her field instruction.
10
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 11 of 40
in [her] termination from the” program. J.A. 889. She also expressed her agreement “to
make changes” going forward. J.A. 889. As part of their conversation about Neal’s future
in the program, Professor Pierson agreed to serve as Neal’s field instructor for the rest of
the semester so that she could continue with her fieldwork at House of Fordham. And
throughout the rest of the semester, Professor Pierson and Dr. Carawan worked with Neal
to complete all overdue and remaining coursework.
Separate from the A&R Committee proceedings, Neal was also brought before
ECU’s Office of Student Rights and Responsibilities (OSRR). In October 2014, Neal was
arrested and charged with the state criminal offense of simple assault following a physical
altercation with her sister. The charge was later dismissed. When the OSRR learned of the
charge, it treated the incident as a violation of ECU’s student code of conduct. As a
sanction, it required Neal to undergo counseling and to verify having done so by February
6, 2015.
Based on her progress and performance in the second part of the semester, Neal
received As in all her classes.
D. Neal’s Spring 2015 Semester
A few weeks into the Spring 2015 semester, Neal engaged in several specific
incidents that alarmed MSW Program faculty. On February 10, Neal met with one of her
instructors, Dr. Intae Yoon in his office ostensibly to discuss her topic for a semester
project, the prospectus for which was past due. The meeting lasted about two hours, during
which Neal “switched from one topic of conversation to another about personal matters
unrelated to the MSW program such as her boyfriend, financial difficulties, a bad
11
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 12 of 40
relationship with her parents, and her plan to attend law school in California.” J.A. 633. At
times, she raised her voice. When Dr. Yoon asked her to leave, she refused, “continu[ing]
to talk about incoherent topics. Sometimes she would cry and then smile.” J.A. 633. She
told Dr. Yoon she would stand behind his vehicle so that he could not leave campus. In his
declaration, Dr. Yoon characterized Neal as engaging in an “extreme level of disruptive
and inappropriate behavior” that was “so incoherent, we were not . . . communicating at
all” that day. J.A. 633. Other MSW Program faculty overheard the outburst, interceded,
and managed to calm Neal. When questioned about the incident during her deposition, Neal
conceded that she “essentially didn’t let [Dr. Yoon] leave” his office. J.A. 2340. And she
characterized her words and conduct toward him that day as “disrespectful,” J.A. 2341, and
“not acceptable,” J.A. 2344.
On February 20, after OSRR emailed Neal a reminder that she was “over due [sic]
on [her] Counseling verification” from its fall sanction, Neal called that office and left a
rambling and incoherent voicemail message that ran over five minutes long. In her
deposition, Neal agreed that doing so had not been an exercise of her “best judgment,” and
was “inappropriate” and “unprofessional.” J.A. 892, 2519.
Just after midnight on February 21, Neal replied to the OSRR email and copied ECU
staff and MSW Program faculty on her response. It too can be characterized as rambling
and incoherent, as exemplified by the following excerpt: “I am really tired, and sick and
tired, and actually exhausted, with getting emails of this nature. Could one of you, or ANY
of you, try to explain this to me? . . . I would *really prefer,* that we handle this in a quick
and easy manner. I would also *also realllllly prefer,* to not get any kind of legal, drama
12
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 13 of 40
(in any sense of the word).” J.A. 457–58. In her deposition, Neal again agreed that the
email “doesn’t make any sense” and that sending it had been “unprofessional” and
“inappropriate.” J.A. 892, 2523.
Three separate and significant interactions occurred on February 25. At 3:20 a.m.,
Neal sent Dr. Carawan and Professor Pierson an email labeled “URGENT: Field Visit” in
which she apologized for her untimely response, explaining, “it has been an EXTREMELY
enduring day,” and she’d “really like to have the field visit occur tomorrow, however, I
have some (unfortunately, safety-related) concerns I need to speak with you about prior.”
J.A. 460. She closed the email, “Thanks for all you do, Love, Olivia L. Neal MSW3 ;).”
J.A. 460. Later in the day, Neal and Professor Pierson spoke on the telephone. During the
call, Neal exhibited “rapid and pressured” speech and disorganized thinking that “jump[ed]
from topic to topic,” making it difficult for Professor Pierson to communicate with her.
J.A. 729. At one point, she told Professor Pierson “to shut up and listen to her.” J.A. 729.
That evening, Neal emailed around thirty people, including individuals affiliated with ECU
and the MSW Program. Attached to the email was a video Neal recorded from that evening
in which she was yelling at her parents. Neal subsequently characterized herself as being
“‘very upset,’ in an ‘emotionally heightened state,’ ‘erratic,’ and ‘screaming non-sense’”
in the video. J.A. 893. Yet again, she acknowledged that the video was “unprofessional”
and “inappropriate,” and that sending it to ECU faculty and staff had not been wise. J.A.
893, 2527.
Neal’s conduct between February 10 and 25 led to numerous emails between MSW
Program faculty discussing Neal’s interactions with them and covering such matters as
13
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 14 of 40
concern for her well-being, whether and how they could encourage Neal to seek help based
on their respective relationships with her, the MSW Program’s “gate-keeping function,”
and Neal’s academic performance thus far in the semester and how to help her going
forward. In describing Neal’s February 10 interaction with Dr. Yoon, Neal’s faculty
advisor stated, “it was obvious that [she] was quite manic,” J.A. 1130, while Dr. Littlewood
referred to it as Neal “having an episode,” J.A. 1123.
When Dr. Littlewood asked the faculty with whom Neal had course- and field- work
that semester about her academic performance, the professors were equivocal. Dr. Yoon,
for example, had just received an assignment from Neal that was “almost 3 weeks over due
[sic].” J.A. 1133. He indicated that “it is too early to tell whether she will fail my course or
not,” but that they all knew Neal “is smart enough and highly likely to pass [the] course.”
J.A. 1136. Similarly, Dr. Carawan responded that Neal’s House of Fordham “task
supervisor has been very positive in her support,” and “[s]o far, I have all of her
assignments which is much different from fall semester.” J.A. 1127.
Before chronicling the events that occurred after Neal’s emails and phone call on
February 25 through the MSW Program’s decision to dismiss Neal on March 16, it’s
appropriate to note that other information came to light later, but which was not known by
the MSW Program at the time it made its decision. Importantly, Neal’s claim alleges
discriminatory conduct permeating ECU’s entire decisionmaking process—from the MSW
Program’s decision on March 16 through the internal appeals process upholding that
decision. Moreover, Neal relies on a later-developed record to support her argument that
her dismissal was motivated by unlawful discrimination. Consequently, in describing the
14
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 15 of 40
factual record, we point out not just the events of the evening of February 25 through March
16, but also what later became known about them and how they factored into ECU’s total
decisionmaking process.
To briefly forecast that recitation, the record evidence shows what MSW Program
faculty observed during that time frame, what spurred Dr. Littlewood to convene an A&R
Committee meeting where MSW Program faculty decided to dismiss Neal, and what the
Committee cited as the specific grounds supporting that decision. In addition, the later-
developed record partially explains Neal’s actions during those three weeks. And that
explanation led the Graduate Review Panel considering Neal’s internal appeal of her
dismissal to expressly not rely on anything that occurred during this timeframe as part of
its recommendation to uphold her dismissal.
From the time Neal sent her email with the attached video recording on the evening
of February 25 to March 5, no one at ECU, the MSW Program, or House of Fordham heard
from Neal or anyone else on her behalf. She did not appear for scheduled field instruction
at House of Fordham, she did not show up for two classes that met on March 3, she did not
attend weekly supervisory meetings with Professor Pierson or initiate scheduling makeup
sessions for a meeting cancelled due to inclement weather on February 25, she did not
submit any assignments due during that period, and she did not respond to emails and
phone calls from MSW Program faculty requesting that she do so.
On March 5, Neal’s father contacted two individuals at ECU, the Associate Dean of
Students and Professor Pierson. During the calls, Neal’s father indicated only that she had
been “hospitalized after having an automobile accident” on February 25. J.A. 894. While
15
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 16 of 40
he assured them Neal did not have any serious physical injury, he did not disclose the basis
for her hospitalization; that she was at a mental health facility; that she did not have
telephone, email, or Internet access; or that she’d been diagnosed with Bipolar Disorder.
That evening, the Associate Dean emailed several MSW Program faculty to inform them
of Neal’s hospitalization and that he’d expressed concern to Neal’s father about “the
concerns that have arisen regarding [Neal’s] well-being and her behavior, he was very short
and repeated several times ‘At this point, I think she is okay. She is seeking appropriate
care.’” J.A. 1156. The next afternoon, Professor Pierson responded to that email recounting
her own, similar, conversation with Neal’s father and expressing her confusion about why
Neal was being hospitalized for so long if she did not have any “broken bones or serious
physical injuries” from the accident. J.A. 1156. She indicated that Neal’s father had
referred broadly to Neal being “anxious” “from the accident” and that he’d “referred to her
behavior here at ECU” as “being ‘anxious’ and ‘stressed.’” J.A. 1156.
After the Associate Dean had notified her of Neal’s hospitalization, but a few hours
before Professor Pierson sent her response, Dr. Littlewood emailed MSW Program faculty
noting Neal’s lapses in academic performance that semester and specifying that if the
faculty supported her in doing so, she wanted to “pursue dismissal from our program based
on not meeting the guidelines detailed in our handbook . . . for professional and ethical
behavior and also being behind in field without communication by the student.” J.A. 1158–
60. Dr. Littlewood’s email cited six specific reasons for pursuing dismissal: Neal (1) hadn’t
had field work supervision meetings since February 10; (2) hadn’t been seen at House of
Fordham in three weeks; (3) hadn’t attended class “this week, nor notified instructors”; (4)
16
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 17 of 40
sent a “disturbing email” on February 20 “to the student conduct office and cced everyone”;
(5) had “concerning” “confrontations with” Dr. Yoon and Professor Pierson; and (6) had
“already been in this same situation last semester and convened an A&R meeting.” J.A.
1158. A few days later, Dr. Littlewood announced an A&R Committee would convene to
discuss Neal’s dismissal.
The week of March 8 through 14 was ECU’s spring break. On Friday, March 13,
Dr. Littlewood emailed Neal stating that she was required to attend a Monday, March 16,
meeting of the A&R Committee to discuss her continued enrollment.
The morning of March 16, the A&R Committee convened without Neal attending. 5
It reviewed Neal’s entire academic record while enrolled, including her Fall 2013 voluntary
withdrawal, the problems addressed during the Fall 2014 A&R Committee meeting, Neal’s
behavior from February 10 to 25, and her February 25 to March 16 failure to communicate
through absences and missed work. The Committee considered whether to extend another
opportunity to Neal to continue in the program, but decided against it given the multiple
past efforts that had proven unsuccessful. Instead, it voted to dismiss Neal from the MSW
Program for failure to meet its academic and non-academic standards and competencies.
5
Once again, Dr. Littlewood chaired the meeting. It’s not clear who attended, but
Professor Pierson was present and all of Neal’s faculty were invited to attend or submit
information relevant to the Committee’s decisionmaking process.
Neal was discharged from the hospital on Friday, March 13, and subsequently
testified that she had limited telephone and no internet or email access while hospitalized.
She further stated that she’d needed a new cell phone after her accident and that the Friday
of her discharge was the last day of ECU’s spring break, so she did not learn about the
mandatory A&R Committee meeting until after it had convened.
17
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 18 of 40
On the evening of March 16, Neal emailed Dr. Littlewood, Professor Pierson, and
faculty members explaining that she’d been hospitalized since February 25th and seeking
to confirm class and supervisory meeting times and assignment deadlines. In response, Dr.
Littlewood and Professor Pierson instructed Neal that instead of returning to any
coursework, she should meet with them the following afternoon. Neal requested, and
received, permission for her parents to attend the meeting.
At the March 17 meeting, Neal learned that the A&R Committee had decided to
dismiss her from the MSW Program. She was given a letter formally dismissing her and
explaining the decision. The letter cites Neal’s failure to participate in several aspects of
her field instruction from February 10 to March 16, her impaired functioning that was at
odds with Section 4.05 of the NASW’s Code of Ethics, poor class attendance, and
habitually late assignments. It observed that Neal’s conduct in the Spring 2015 semester
was “all the more concerning” given her prior history in the MSW Program, pointing out
that despite attempts to support her, she’d withdrawn from the program in the Fall 2013
semester and had earlier A&R Committee proceedings in the Fall 2014 semester. Lastly,
the letter noted Neal’s “erratic and unprofessional behavior” in February 2015, including
the February 10 incident in Dr. Yoon’s office and her failure to respond to emails from
professors.
E. Neal’s Internal Appeal & Related Pre-Litigation Conduct
Neal appealed her dismissal through ECU’s internal appeals process, as set out in
the Graduate Handbook. A Graduate Review Panel consisting of two faculty members and
one graduate student from other departments met six times from April to June 2015 to
18
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 19 of 40
interview Neal and MSW Program faculty; review Neal’s entire record while enrolled; and
review additional documentary evidence Neal submitted challenging her dismissal. Among
the information Neal submitted in her defense was documentation of her hospitalization
from February 26 to March 13 which—for the first time—disclosed to ECU that she had
been diagnosed with Bipolar Disorder. In addition, Neal submitted her private counselor’s
perspective that her symptoms were now being adequately managed by medication and
that she could resume normal school activities. 6
Neal also submitted documentation to the Graduate Review Panel about how she
continued her social work training in the final weeks of the Spring 2015 semester.
Specifically, despite Neal’s dismissal from the MSW Program, Dr. Yoon permitted her to
continue attending his class because it did not involve client work. She completed all
assignments. Although he could not submit a grade for her work because she was no longer
officially registered, Dr. Yoon informed Neal that she would have earned a “C” in the
course for the semester. Similarly, although the MSW Program had informed House of
Fordham that Neal’s field internship had been terminated and that any further work Neal
performed would be strictly on a voluntary basis, House of Fordham allowed Neal to
continue her volunteer work. Neal recruited individuals to act as the equivalent of a “field
6
The record contains additional information related to the car accident and
hospitalization, most of which is irrelevant to our review. Briefly, she was in the car
accident February 25, but left the scene with no major injuries. The police were later called
to a gas station because its employees described a woman—later identified as Neal—
engaging in bizarre behavior. She was taken to a local hospital and soon transferred to a
mental health facility for involuntary commitment. While there, she was diagnosed for the
first time with “Bi-polar, Type 1, with the most recent episode being mania.” J.A. 489; 893.
19
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 20 of 40
instructor” and “task supervisor,” both of whom reported that Neal performed
exceptionally well at House of Fordham throughout the remainder of the spring of 2015.
The Graduate Review Panel recommended affirming the MSW Program’s decision
to dismiss Neal and found that her dismissal was based on appropriate criteria: her
academic performance and applicable professional standards. The Review Panel
specifically noted Neal’s “erratic and unprofessional behavior” on February 10, multiple
instances of tardiness to class, and inconsistent communication with supervisors and
faculty in the Spring 2015 semester. It further observed that this conduct was “a recurrence
of similar incidents” in the Fall 2014 semester. But the Review Panel also noted that it did
not base its recommendation on “any of the events that occurred from the date [Neal] was
in an automobile accident on February 25, 2015 through March 16, 2015 when [she]
indicated that cell phone and internet service was re-established for her,” nor did it consider
any of the evidence the parties submitted relating to Neal’s “health issues,” which it
deemed “beyond the scope of an academic review panel.” Lastly, the Graduate Review
Panel declined to consider the evidence Neal submitted related to events that occurred after
her dismissal, such as her continued volunteerism at House of Fordham.
In July 2015, ECU’s Dean of Graduate Studies adopted the Graduate Review
Panel’s recommendation and upheld the MSW Program’s decision to dismiss Neal.
Several months later, Neal filed a complaint with the U.S. Department of
Education’s Office of Civil Rights, which investigated her allegation of discrimination
against ECU. In August 2017, the Office closed its investigation after finding that ECU
had not discriminated against her.
20
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 21 of 40
F. District Court Proceedings
In March 2017, Neal filed a complaint in North Carolina state court, which ECU
subsequently removed to the U.S. District Court for the Eastern District of North Carolina
based on federal question jurisdiction. The complaint originally named additional
defendants and claims, which have since been dismissed or otherwise finally resolved and
are not at issue in this appeal. The only claim relevant here is the complaint’s allegation
that ECU discriminated against Neal by dismissing her from the MSW Program, in
violation of the ADA.
Following discovery, ECU moved for summary judgment, which the district court
granted. It assumed, without deciding, that Neal could prove the first element of her claim:
that ECU had regarded her as having a mental impairment such that she met the statutory
definition of having a disability. However, the court concluded that Neal had not come
forward with evidence that would be sufficient to show—or that showed a genuine issue
of material fact with respect to—the second and third elements of her claim, that she was
“otherwise qualified” to remain enrolled in the MSW Program or that ECU dismissed her
from the MSW Program “on account of” her disability.
Neal noted a timely appeal from the district court’s judgment, and we have
jurisdiction under 28 U.S.C. § 1291.
III.
We review the district court’s grant of summary judgment de novo, using the same
standard as the district court: “a court should grant summary judgment only if, taking the
21
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 22 of 40
facts in the best light for the nonmoving party, no material facts are disputed and the
moving party is entitled to judgment as a matter of law.” Goodman v. Diggs, 986 F.3d 493,
497–98 (4th Cir. 2021) (citation omitted); see Fed. R. Civ. P. 56(a). When there’s a “failure
of proof concerning an essential element of a plaintiff’s case,” summary judgment is
appropriate regardless of the evidence proving other elements of the claim. Haulbrook, 252
F.3d at 702 (cleaned up).
Neal contends that the district court misapplied the governing legal principles
related to summary judgment and ADA discrimination claims when it concluded that the
record would not support the second and third elements of her prima facie case. As set out
below, we disagree. 7
A. “Otherwise Qualified” Individual
Congress intended that the ADA “not compel educational institutions to disregard
[a student’s disability] or to make substantial modifications in their programs to allow
disabled persons to participate.” Se. Cmty. Coll. v. Davis, 442 U.S. 397, 405 (1979). Thus,
the second element of a prima facie case of disability discrimination under the ADA
required Neal to “present[] sufficient evidence to show . . . that [s]he could satisfy the
7
In their briefs to this Court, both parties address the first element of the
discrimination claim. It’s not necessary to address that element to affirm, so we will follow
the district court’s lead and assume, without deciding, that the record would be adequate
to support a finding that ECU regarded Neal as disabled at the time of her discharge from
the MSW Program.
22
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 23 of 40
essential eligibility requirements of the [MSW] [P]rogram,” Halpern, 669 F.3d at 462,
including both its academic and non-academic criteria, Davis, 442 U.S. at 406. 8
1. Deference in Assessing “Professionalism” Requirements
Because courts are ill-suited to the task of determining the “essential eligibility
requirements” of an academic program, we traditionally afford “‘great’ deference to a
school’s determination of the qualifications” for its programs. Halpern, 669 F.3d at 463.
This non-controversial proposition has been repeatedly acknowledged and applied by both
the Supreme Court and this Court. E.g., Regents of the Univ. of Mich. v. Ewing, 474 U.S.
214, 225 (1985) (“When judges are asked to review the substance of a genuinely academic
decision . . . they should show great respect for the faculty’s professional judgment.”); Bd.
of Curators of the Univ. of Mo. v. Horowitz, 435 U.S. 78, 90 (1978) (“[T]he determination
whether to dismiss a student for academic reasons requires an expert evaluation of
cumulative information and is not readily adapted to the procedural tools of judicial or
administrative decisionmaking.”); Class v. Towson Univ., 806 F.3d 236, 246 (4th Cir.
2015) (“In determining whether an educational institution’s eligibility requirement is
8
Because this element focuses on the “essential eligibility requirements,” a plaintiff
may be “otherwise qualified” and yet require “reasonable modifications to [a university’s]
rules, policies, or practices.” Halpern, 669 F.3d at 462. Neal represents she did not require
any modifications to the MSW Program for her to be “otherwise qualified.”
Consequently, this case does not present a claim that ECU failed to provide Neal
with a reasonable accommodation. Neal has not and does not contend otherwise. ECU’s
argument that Neal’s discrimination claim fails because she did not submit a timely request
for an accommodation overlooks that a failure to accommodate is just one type of ADA
discrimination claim. Cf. 29 C.F.R. § 1630.2. Consequently, that fact is not dispositive, as
ECU could still be liable if Neal came forward with evidence sufficient to establish that
ECU discharged her from the MSW Program on account of its perception that she had a
mental impairment.
23
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 24 of 40
essential and whether it has been met, we accord a measure of deference to the school’s
professional judgment.”); Halpern, 669 F.3d at 462–63 (“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 professional qualifications. Based on these
cases, our sister circuits have overwhelmingly extended some level of deference to schools’
professional judgments regarding students’ qualifications when addressing disability
discrimination claims.”); Davis v. Univ. of N.C., 263 F.3d 95, 102 (4th Cir. 2001)
(recognizing the same). “[I]n according deference,” however, “we must take special care
to ensure that eligibility requirements do not disguise . . . discriminatory requirements.”
Class, 806 F.3d at 246. That care entails “assiduously review[ing] the record to ensure that
the educational institution has conscientiously carried out its statutory obligation.”
Halpern, 669 F.3d at 463 (cleaned up).
As is true of many academic programs, and in particular post-graduate degree
programs, “professionalism [is] an essential requirement” of the MSW Program. Halpern,
669 F.3d at 463. Neal stipulated to that fact. J.A. 877. What’s more, the policies governing
Neal’s enrollment in the MSW Program plainly and clearly cautioned that a lack of
professionalism could be a basis for dismissal from the program. J.A. 881 (“Unprofessional
conduct or a breach of the NASW Code of Ethics may be deemed to be serious enough to
terminate field work and the social work program.”); J.A. 883–84 (“If the [A&R]
[C]ommittee makes recommendations to the student for a specific course of action, the
committee has the authority to determine if those standards were met, and may terminate a
student from the program if they were not.”). Neal not only agreed to be governed by those
24
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 25 of 40
policies when she enrolled, but also stipulated that MSW Program students’ “academic
performance is not judged solely on grades. Academic performance includes a student’s
behaviors, including whether they are being disruptive, unprofessional, or failing to attend
classes.” J.A. 881.
We are unpersuaded by Neal’s argument that she met this professionalism standard
because she maintained a high grade point average and had never been cited for
unprofessional conduct in her field work. This argument takes an incorrect and myopic
view of what conduct factors into a student’s “professionalism.” Without question, Neal
earned high marks in her academic classes. And, by all accounts, she excelled at her field
work with House of Fordham. But those are not the sole measures of “professionalism,”
which also appropriately consider matters such as conduct toward faculty and peers, timely
communications, class and meeting attendance, and the like. Universities—not courts—
are best equipped to determine what weight to give the many factors comprising the totality
of a student’s academic record and performance in an academic program and how that
totality measures up against a program’s requirements. Absent evidence of a discriminatory
motive in assessing the numerous factors ECU was entitled to rely on to determine a
student’s qualifications to remain enrolled in one of its programs, we have no cause to
accept Neal’s invitation to reweigh those factors or second-guess ECU’s determination that
Neal failed to satisfy them.
This conclusion does not chart new territory. As the district court recognized, Neal’s
case bears many similarities to our decision in Halpern. There, a former medical student
alleged that a medical school discriminated against him on account of his disability when
25
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 26 of 40
the school dismissed him for unprofessional behavior. 669 F.3d at 456. Like Neal, Halpern
did not disclose any diagnoses to the school and “did not request any disability-related
accommodations.” Id. at 457. Though the precise nature of his conduct differed from
Neal’s, throughout his enrollment in the medical school, the student demonstrated
“difficulties with professionalism” such as behaving in an abusive manner, absences
without providing notice, tardiness, “resistan[ce] to feedback,” and “bizarre behavior” on
campus. Id. at 457–58. The student also had some successes throughout his enrollment,
including positive feedback and “passing or honors marks” on components of his clinical
rotations. Id. at 458.
In assessing whether the medical student had met his burden of establishing that he
was “otherwise qualified” to remain enrolled, we first recognized our “comparative
disadvantage in determining whether [he] is qualified to continue in the Doctor of Medicine
program,” leading us to “accord great respect to the [school’s] professional judgment on
the[] issue[].” Id. at 463. “[F]ind[ing] that professionalism was an essential requirement of
the Medical School’s program,” we concluded that Halpern had failed to show that he
“satisf[ied] this requirement.” Id. Specifically, we noted that the school “identified
professionalism as a fundamental goal of its educational program, and it required that
students demonstrate professional behavior and attitudes prior to graduating.” Id. Further,
we rejected the student’s argument that he satisfied this requirement “because he received
passing marks in professionalism in his clinical rotations,” because that “fail[ed] to take
into account” other aspects of professionalism, including his “treatment of staff,” “behavior
towards faculty,” “resistance to constructive criticism,” and “failure to appear” for required
26
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 27 of 40
components of his coursework. Id. at 463–64. We observed that while none of these
components may have warranted failing grades, “the school reasonably considered them
as part of an ongoing pattern of unprofessional behavior” that had “the potential . . . to
undermine patient care.” Id. at 464. 9
A similar “pattern of unprofessional behavior” appears in Neal’s record and
supports ECU’s decision that—notwithstanding her GPA and positive feedback for field
work—she lacked essential professionalism requirements of the MSW Program.
2. No Genuine Material Dispute of Fact Exists in the Record
Neal makes several arguments attempting to distinguish Halpern and claiming
summary judgment was inappropriate. None persuade us, but a few warrant further
discussion. 10
Neal asserts that a dispute in the record exists as to the factual accuracy of whether
she missed classes and field supervision for unexcused reasons. She claims that this
discrepancy matters because it served as one factor supporting her dismissal. We disagree.
The undisputed record shows a pattern of missed coursework throughout Neal’s
time in the MSW Program such that ECU could rely on that evidence as one basis for its
decision. Neal voluntarily withdrew from the MSW Program in the Fall 2013 semester
9
Halpern also addressed whether the medical student was qualified with an
accommodation, an analysis that isn’t required here.
10
Neal’s briefs to this Court make many sweeping claims about the record, often
without any citation or with references to joint appendix pages that do not align with the
brief’s characterizations and arguments. We have reviewed her arguments and the record.
While we address only a handful of them in the opinion, the others would fail for the same
or similar reasons to those we discuss.
27
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 28 of 40
because she’d missed a significant number of classes, field work, and coursework. See J.A.
886 (stipulating “she eventually stopped attending classes altogether” that semester even
before her hospitalization for two weeks). Similarly, although absences were not
specifically identified as a problem during her Fall 2014 A&R Committee meeting, it did
address related concerns such as being tardy, frequently leaving class for ten or more
minutes several times during a single class, and being distracted or disruptive on her
telephone rather than attentive.
As for the Spring 2015 semester specifically, Neal stipulated that the MSW Program
required students and field instructors to meet “at least weekly” for supervisory meetings
and that students have the responsibility to set up those meetings. J.A. 894. Because of that
requirement, between February 12 and March 16, Neal “should have had at least four (4)
productive supervisory sessions with [Professor] Pierson. Instead, she had none.” J.A.
894. 11 In addition to missing a scheduled field supervision visit on March 3, Neal also
11
Neal asserts that it was inappropriate to rely on these missed classes and
supervision meetings as support for ECU’s determination that she was not qualified to
remain in the MSW Program because the record explains that some were due to inclement
weather and some were due to her hospitalization. That argument misses the mark, as it
goes to what weight ECU should have given to those absences rather than whether the
record supports that they occurred.
Further, given that it’s undisputed that students have the responsibility to schedule
supervisory meetings each week, ECU is entitled to deference in assessing whether and
how Neal attempted to reschedule or make up the missed meetings after weather foreclosed
the initially scheduled meeting. Professor Pierson readily acknowledged that some of their
scheduled meetings were canceled due to inclement weather, and she pointed to Neal’s
failure to initiate and ensure rescheduling of those meetings, as opposed to their initial
cancellation, as evidence of her lack of professionalism. See, e.g., J.A. 728 (“On February
17, 2015 our scheduled supervision was cancelled due to inclement weather (not the fault
of Ms. Neal), however Ms. Neal did not reschedule this supervision or follow up with me
(Continued)
28
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 29 of 40
missed Dr. Yoon’s class and Dr. Carawan’s field seminar. J.A. 893. And while Neal
appeared for her field supervision on February 10, Professor Pierson stated that she “was
unable to provide supervision due to Ms. Neal” being “distracted and off topic, often
moving about the room, and did not allow me to redirect her to supervision topics.” J.A.
728. In short, Professor Pierson classified such “lack of engagement” in person as the
equivalent of not appearing at all for their supervision meeting. J.A. 728–29. In short, the
record does not contain a genuine issue of material fact about whether—over the entire
course of Neal’s enrollment in the MSW Program—missed classes and supervision
meetings played a recurring role that could reasonably factor into ECU’s retention
determination.
Even more problematic for Neal, however, is that this was just one of many factors
that (1) ECU cited at the time of her dismissal and (2) the district court pointed to as a basis
for concluding that she failed to demonstrate she was “otherwise qualified” to remain in
the MSW Program. Thus, even if Neal had been able to cast doubt on whether her absences
from class and supervisory meetings would have warranted dismissal, that would not alter
the outcome here given the totality of the undisputed record. Namely, and as recounted
earlier, Neal admitted to exhibiting unprofessional behavior toward MSW Program faculty
as I requested. On both February 24, 2015 and March 3, 2015, Ms. Neal failed to attend
our pre-scheduled supervision sessions and did not reschedule or respond to my attempts
to reach her.”).
Lastly, regardless of how the Spring 2015 A&R Committee weighed those missed
classes and meetings in its initial decision to dismiss Neal, the Graduate Review Panel
expressly did not consider any of the absences that occurred due to Neal’s hospitalization
when it recommended upholding the decision, nor did it specifically cite any absences from
classes or supervision meetings as a basis for its recommendation.
29
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 30 of 40
in numerous incidents that occurred in person, on the telephone, and in writings throughout
February 2015. Looking beyond her final semester of enrollment, Neal had previously been
warned that her conduct, attitude, and behavior needed to change, and ECU had assisted
her so that she could continue in the MSW Program. For example, she was permitted to re-
enroll for the Spring 2015 semester, which was before the time generally allowed following
withdrawal, and she was required to attend the Fall 2014 A&R Committee meeting at
which point she was formally cautioned about her continued enrollment in the MSW
Program, and its faculty implemented a support team to assist her in completing her field
supervision and other class assignments.
Neal also asserts the record does not support ECU’s justification that her Spring
2015 behavior was a recurrence of problems cited during the Fall 2014 semester. In
support, however, Neal cites portions of her deposition testimony that do not create a
genuine issue of material fact about her poor performance in the Fall 2014 semester. For
example, in her deposition Neal recounted how stressful it was to put together her learning
agreement each semester and she admitted to being late with the learning agreement. She
further admitted that “[i]t’s possible” she turned in additional late assignments based on
syllabus deadlines, though she indicated her professors would sometimes allow her to turn
in assignments on a different date than originally listed. 12 J.A. 2372–73. This testimony
12
The learning agreement was an essential component of a MSW Program student’s
field work. It was both “a plan for the internship, [and] an evaluation instrument.” J.A. 880.
Early in each semester students would submit a draft learning agreement outlining the
activities in which they would participate during their placement so that they could “gain
the professional competencies set out by the Council on Social Work Education,” which is
(Continued)
30
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 31 of 40
does not contradict her professors’ repeated statements that she had trouble submitting
timely class assignments. Even if professors worked with her to complete the assignments
and accepted them late, a habitual inability to meet deadlines could still be a valid basis for
later dismissal from the MSW Program. In Spring 2015, for instance, Dr. Yoon, accepted
an assignment that was “almost 3 weeks over due [sic],” J.A. 1133, but later recounted in
his declaration that although he “tried to work with Ms. Neal by grading her late
assignments” throughout her enrollment, “her consistent inability to meet deadlines was
unprofessional” and a factor in favor of her eventual dismissal. J.A. 632. Neal also contends
that her deposition testimony contradicts other record evidence about the February 10
interaction with Dr. Yoon, namely, whether she “yelled” at or pointed her finger at him
during their interaction. To put it plainly, these “discrepancies” were immaterial to
assessing this incident’s relevance to the decision to dismiss Neal from the MSW Program.
As noted, despite Neal characterizing her raised voice as getting “louder” rather than
“yelling,” J.A. 2342, she admitted that the incident was “unacceptable.” J.A. 891.
Nor did ECU act with an impermissible “imperial decree trumpet[ing] an arbitrary
and capricious bent, demanding not merely the Court’s deference but indeed its fealty,”
Opening Br. 34–35, by declining to consider the view of Neal’s psychiatrist that she could
successfully complete the MSW Program following her March 13 discharge. Whatever his
qualifications in a related field or his familiarity with the professional standards applicable
to social workers, Neal’s psychiatrist was not a member of ECU’s faculty, privy to Neal’s
“the accrediting body for all accredited Social Work degrees in the United States.” J.A.
880.
31
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 32 of 40
academic record or the assessments of those interacting with her on campus, or ultimately
charged with the gatekeeping function of determining eligibility for the MSW Program.
There is nothing arbitrary or capricious about declining to consider his opinion under the
circumstances here. 13
In sum, the record fully supports the district court’s conclusion that ECU was
entitled to deference in its conclusion that Neal no longer met the eligibility requirements
to remain enrolled in the MSW Program. Nothing in the record causes us to deviate from
the usual approach of affording great deference to a university’s determination that a
particular student fails to meet its academic and non-academic requirements, including its
professionalism standards. On this record, Neal failed to come forward with evidence
sufficient to support a finding that she was “otherwise qualified” to remain enrolled in the
MSW Program. Because Neal cannot prove an element of her ADA discrimination claim,
ECU was entitled to summary judgment.
B. Causation
While our conclusion about the “otherwise qualified” element would be sufficient
grounds to affirm the district court’s judgment, we also address the court’s holding that
Neal had not demonstrated that her dismissal was “on the basis of” her disability. Although
13
Similar limitations exist with the declaration from MSW Program professor
Tracey Carpenter-Aeby, which simply states that professors had “discretion” to excuse
student absences when warranted, such as in the case of hospitalization. This conclusory
statement does not address Neal’s academic record or whether she met the required
academic standards as a holistic matter. Nor did Professor Carpenter-Aeby indicate any
familiarity with Neal’s record. Her generic opinion does not move the ball concerning
either Neal’s qualifications to remain in the MSW Program based on the totality of her
academic record or ECU’s motives in deciding to dismiss her.
32
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 33 of 40
the ADA’s causation element can be satisfied by proof that disability was “a” motivating
factor (rather than the “sole” reason) for the defendant’s decision, to establish causation
more is required than “[t]he fact that [the defendant] is aware of [the plaintiff’s]
impairment.” Haulbrook, 252 F.3d at 703. Instead, “a plaintiff must show that the adverse
action occurred under circumstances that raise a reasonable inference of unlawful
discrimination.” Cogwill v. First Data Techs., Inc., 41 F.4th 370, 380 (4th Cir. 2022)
(citation omitted). In other words, while the ADA prohibits a university from dismissing a
student on account of a disability, a university is lawfully permitted to dismiss a student on
account of misconduct triggered by a disability.
Neal challenges this conclusion, asserting that the record contains sufficient
evidence from which a jury could find that ECU dismissed her from the MSW Program
because of her disability. She points to emails between MSW Program faculty and
administration in February 2015 discussing their perceptions of her mental state and her
performance in the program. And she criticizes the district court’s reliance on Halpern,
arguing that the Court did not address causation in that decision, so it should not be part of
a causation analysis. 14 Again, we disagree with Neal.
We’ve considered the February 2015 email exchanges alongside the other record
evidence Neal relies on and conclude that the district court did not err in holding that the
14
Throughout the appeal, Neal attempts to distinguish Halpern by asserting that its
holding depended on an undisputed record of unprofessional behavior, which does not exist
here. For the reasons already discussed, we disagree with Neal that a genuine issue of
material fact exists about the circumstances leading ECU to dismiss her from the MSW
Program, so this is not a valid ground for distinguishing Halpern.
33
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 34 of 40
undisputed record would preclude a jury from finding in favor of Neal on the issue of
causation. Viewed in the light most favorable to Neal, the emails depict a faculty concerned
for Neal’s well-being, sensitive to when and how they could address an adult graduate
student’s personal matters, and fearful that her conduct and interactions with them
beginning on February 10 and continuing through February 24 would affect her successful
performance going forward in the semester.
Far from expressing any indication that Neal should be dismissed from the program
on account of a mental impairment or perceived “manic,” J.A. 1130, “episode,” J.A. 1123,
these emails uniformly demonstrate a genuine desire to help Neal address her health quite
apart from the MSW Program and their concern that if Neal’s recent conduct and behavior
continued, her academic performance in the MSW Program would suffer. At no point did
any of the faculty members suggest that Neal had a mental disability that could itself be a
ground for removing Neal from the MSW Program. In fact, Dr. Yoon—whose email
relaying concern about how Neal behaved in their meeting spurred the series of emails that
followed—expressly stated the exact opposite: “Again, I do NOT mean to stop her from
graduating in May.” J.A. 1136.
Dr. Littlewood’s role in the email thread is particularly relevant given that she later
initiated and chaired the Spring 2015 A&R Committee meeting during which Neal was
dismissed. At one point, she cautioned that it “may be against [the Family Educational
Rights and Privacy Act] for us to discuss [Neal’s mental health and medication] in relation
to her performance in the MSW Program.” J.A. 1136–37. And her redirect appropriately
came in direct response to Neal’s faculty advisor—who did not have other interaction with
34
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 35 of 40
Neal in her MSW Program classes or field work—disclosing a private conversation she’d
had with Neal about her ADHD medication and whether she was in any treatment at the
moment, topics that veered beyond Neal’s conduct and performance in the MSW Program
itself. Dr. Littlewood encouraged faculty to “hold[] [Neal] to the same [coursework]
standards as other students” and to “document [any] academic issues” because “[t]hey are
the issues which we can hold [her] accountable and pursue corrective action.” J.A. 1137.
To conclude that Dr. Littlewood’s and other MSW Program faculty’s words actually
show discriminatory intent would be to twist them beyond all recognition. 15 Though these
emails support Neal’s suggestion that MSW Program faculty and advisors were “aware”
of her impairment, that does not demonstrate causation. Haulbrook, 252 F.3d at 703. Much
more is required and here it is completely lacking. In short, nothing in the emails calls into
question why the MSW Program convened the A&R Committee meeting to decide whether
to dismiss Neal.
In particular, Neal’s conduct from February 25 to March 16 plays a unique but
central role in demonstrating the lack of evidence of causation in both the A&R
Committee’s initial decision to dismiss her and the Graduate Review Panel’s
recommendation to uphold that decision. Part of the uniqueness of that role stems from the
15
In perhaps an unwittingly candid moment, Neal admits as much by arguing that
her February 2015 behavior alone would not support her dismissal because the MSW
Program faculty did not dismiss her immediately following her displays of mania, but
instead adopted a “wait and see posture.” Opening Br. 33. Instead, it was only after she
missed additional communications, classes, and field work that they convened the A&R
Committee to consider her dismissal in light of the totality of her academic performance
and record.
35
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 36 of 40
fact that the A&R Committee relied on that conduct and the Graduate Review Panel refused
to consider it, demonstrating both entities were not acting with discriminatory motive.
As for the A&R Committee’s initial decision—that the same individuals who were
party to the February 2015 emails did not act to dismiss her until after further concerning
academic conduct occurred bolsters the conclusion that no causal link can be shown
between Neal’s disability and her dismissal. Regardless of the reasons for these events, it’s
undisputed that from February 25 to March 16, Neal missed class, supervision meetings,
field work, and class assignments. She also failed to respond to numerous emails and phone
calls from faculty requesting that she respond. Although Neal contends her post-February
25 conduct should have been excused given her hospitalization, it’s undisputed that the
Spring 2015 A&R Committee convened to decide her future in the MSW Program only
after these additional events related to her academic performance occurred. It’s further
undisputed that at the time the A&R Committee acted, no one on the Committee knew of
the reasons for her hospitalization or of her Bipolar Disorder diagnosis. Whatever their
concerns about Neal’s mental health in mid-February, MSW Program faculty did not
convene the A&R Committee meeting to discuss Neal’s dismissal until further concerns
about her academic performance had occurred. And both Dr. Littlewood’s email
delineating the basis for convening the A&R Committee and the MSW Program’s letter
explaining why Neal was being dismissed cited a host of non-discriminatory reasons
supporting the decision.
Further breaking the link between Neal’s dismissal and any discriminatory motive
is the Graduate Review Panel’s independent evaluation of Neal’s record and its
36
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 37 of 40
recommendation to uphold her dismissal while not holding Neal accountable for her
conduct during her hospitalization. As discussed earlier, the Graduate Review Panel was
comprised of individuals outside the MSW Program; they were not part of the February
2015 faculty emails. Moreover, the Panel expressly did not rely on any events that occurred
after February 25, for which time it apparently believed Neal’s hospitalization provided
sufficient grounds for excusing her absences and missed work. And yet it found that the
totality of Neal’s academic record demonstrated grounds for not meeting the MSW
Program’s standards for continued enrollment. At both the initial and internal appeals stage
of ECU’s decision to dismiss Neal, there’s no record evidence that her disability was a
factor, meaning that she cannot prove this essential element of her prima facie case of
discrimination.
Both the A&R Committee and the Graduate Review Panel expressly—and
lawfully—pointed to Neal’s January 2015 incidents in person, via telephone, and through
email as factors supporting the decision to dismiss her. Although our decision in Halpern
did not expressly address causation, the district court aptly cited it for a principle that we
agree is equally relevant to the causation inquiry: “misconduct—even misconduct related
to a disability—is not itself a disability and may be grounds for dismissal” Halpern, 669
F.3d at 464 (cleaned up). Numerous authorities acknowledge the same distinction.
Newberry v. E. Tex. State Univ., 161 F.3d 276, 279–80 (5th Cir. 1998) (distinguishing
between dismissal for “conduct [that] is symptomatic of disability,” which is a legitimate,
nondiscriminatory motive and dismissal based on a “collateral assessment of disability,”
which would violate the ADA); Palmer v. Circuit Court, 117 F.3d 351, 352 (7th Cir. 1997)
37
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 38 of 40
(same); see also Pence v. Tenneco Auto. Operating Co., 169 F. App’x 808, 811–12 (4th
Cir. 2006) (holding employer’s belief that plaintiff engaged in misconduct was a
permissible nondiscriminatory reason for termination of employment even if his employer
was factually incorrect and even if employer also thought the misconduct was caused by a
mental impairment); 2008 EEOC Guidance, 2008 WL 4786697, at *9 (“The ADA does not
protect employees from the consequences of violating conduct requirements even where
the conduct is caused by the disability.”).
Neal repeatedly acknowledged that her February 2015 interactions—from her
February 10 incident in Dr. Yoon’s office to her voicemail, emails, and phone call with
Professor Pierson—were “unprofessional” and “inappropriate.” But she contends that they
resulted from a transient condition for which she could be adequately treated through
medication and thus should not have been cited against her. Similarly, she admits that
during her hospitalization, she missed multiple classes, field work, field supervision, and
class assignments—though she argues those absences should be “excused” given why they
occurred. But ECU was not required to retroactively excuse misconduct related to her later
Bipolar diagnosis. 16 Neal’s insistence to the contrary sought “not a disability
16
Because it is particularly relevant here, we reiterate that Neal never requested an
accommodation before her dismissal from the MSW Program. Further, she is proceeding
solely under the “regarded as” prong of establishing a disability, which does not require
sua sponte accommodations for a perceived impairment that has caused unprofessional
conduct. See 29 C.F.R. § 1630.2(o)(4) (stating that covered entities are “not required to
provide a reasonable accommodation to an individual who meets the definition of disability
solely under the ‘regarded as’ prong”).
Critically, ECU could dismiss Neal for failing to meet the MSW Program’s
academic requirements—which included its professionalism criteria—even if her
(Continued)
38
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 39 of 40
accommodation, but ‘a second chance to better control [her] treatable medical condition.’”
Halpern, 669 F.3d at 465 (quoting Hill v. Kan. City Area Transp. Auth., 181 F.3d 891, 894
(8th Cir. 1999)); Off. of the Senate Sergeant. at Arms v. Off. of Senate Fair Emp. Pracs.,
95 F.3d 1102, 1107 (Fed. Cir. 1996) (“[T]he ADA . . . does not require a retroactive
accommodation for a disability, which is what is meant by a fresh start.”); see also Davila
v. Qwest Corp., 113 F. App’x 849, 854 (10th Cir. 2004) (“[E]xcusing . . . misconduct to
provide a fresh start/second chance to an employee whose disability could be offered as an
after-the-fact excuse is not a required accommodation under the ADA.” (citations
omitted)). At bottom, Neal wants to have it both ways, arguing she was a qualified
individual with no accommodation who was dismissed on the basis of her Bipolar Disorder,
yet demanding that ECU had to overlook everything that occurred in February and March
2015 because of evidence about her subsequently diagnosed mental impairment. The ADA
has no such requirement.
The A&R Committee appropriately relied on what it knew about Neal’s
performance during the totality of her enrollment, including February and March 2015
when it made the initial decision to dismiss Neal. The Graduate Review Panel did not act
arbitrarily in deciding not to consider Neal’s conduct after February 25 and yet to rely, in
part, on her earlier conduct as a factor in recommending that decision be upheld. Neither
course demonstrates a genuine issue of material fact about what led to Neal’s dismissal and
misconduct was later disclosed to be the result of a disability so long as the disability itself
was not the basis for the decision. As we recognized in Halpern, “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.” 669 F.3d at 465.
39
USCA4 Appeal: 20-2153 Doc: 45 Filed: 11/04/2022 Pg: 40 of 40
whether her disability was a motivating factor in that decision. We therefore agree with the
district court that this separate reason also demonstrates that ECU was entitled to summary
judgment.
IV.
We in no way make light of mental illness. However, for purposes of assessing ADA
compliance, universities have a responsibility to the entire academic community and to the
public to ensure that a student is qualified to meet the lawful requirements of their program
especially where, as here, conferral of a degree is a prerequisite to state licensure
requirements. ECU properly exercised its discretion in that regard and bent over backwards
to assist Neal during her enrollment in the MSW Program. It gave her a second chance with
the out-of-order readmission in the Spring 2014 semester. She received a third chance in
the Fall 2014 semester following the A&R Committee proceeding. And MSW Program
faculty gave her a fourth chance as they tried to work with her thereafter, including during
and following the February 10 encounter in Dr. Yoon’s office. Now, Neal wants to force
ECU to provide a fifth chance. The ADA contains no such requirement given an absence
of evidence supporting her claim of discriminatory dismissal.
For the reasons set forth above, we affirm the judgment of the district court.
AFFIRMED
40