Natalie Slaughter v. Des Moines University College of Osteopathic Medicine , 925 N.W.2d 793 ( 2019 )

IN THE SUPREME COURT OF IOWA
No. 17–1732
Filed April 5, 2019
NATALIE SLAUGHTER,
Appellant,
vs.
DES MOINES UNIVERSITY COLLEGE OF OSTEOPATHIC MEDICINE,
Appellee.
Appeal from the Iowa District Court for Polk County, Jeffrey D.
Farrell, Judge.
Plaintiff appeals summary judgment dismissing claim that medical
school failed to accommodate her mental disability and evidentiary ruling
declining to impute confidential knowledge of psychotherapist to the
school. AFFIRMED.
John P. Roehrick of Roehrick Law Firm, P.C., Des Moines, and
Bonnie J. Heggen, Ankeny, for appellant.
Kelly R. Baier of Bradley & Riley PC, Cedar Rapids, and Melissa A.
Carrington of Bradley & Riley PC, Iowa City, for appellee.
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WATERMAN, Justice.
In this appeal, we review an evidentiary ruling and summary
judgment ending a lawsuit by a student who failed to meet academic
requirements in medical school and sued the school for failing to
accommodate her mental disability. The student was treated for
depression by a staff psychotherapist during the school year but did not
give consent to allow the psychotherapist to discuss her depression with
the faculty. Nor did the student inform the academic decision-makers of
her depression until mid-December, after she had failed a required class
and performed poorly on other classes her first semester. Several
accommodations were provided or offered, but she failed another
required class the second semester and again performed badly on other
courses. The medical school expelled her based on her failing grades and
lack of academic promise.
The student filed a complaint against the medical school with the
Iowa Civil Rights Commission and then filed this district court action
alleging the school failed to accommodate her mental disability. She filed
an evidentiary motion to impute her psychotherapist’s knowledge of her
depression to the school’s academic decision-makers. The district court
applied statutory confidentiality requirements for mental health
information to deny her motion, finding the student had not waived the
privilege, and granted the school summary judgment on her failure-to-
accommodate claim. We retained her appeal.
For the reasons explained below, we hold the district court
correctly declined to impute the psychotherapist’s knowledge to the
medical school’s academic decision-makers. We also conclude based on
the undisputed facts that the failure-to-accommodate claim failed as a
matter of law. The student could not show the medical school denied
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any reasonable accommodation she requested or that any reasonable
accommodation existed that would have allowed her to meet the school’s
academic standards. Accordingly, we affirm the district court’s
evidentiary ruling and summary judgment.
I. Background Facts and Proceedings.
In August 2014, Natalie Slaughter started her first year of medical
school at Des Moines University College of Osteopathic Medicine (DMU).
Almost immediately, she struggled academically. Slaughter soon came to
the attention of the Academic Progress Committee (APC), a faculty
committee that monitors student academic performance and conducts
academic disciplinary hearings.
Dr. Donald Matz, chair of the APC, repeatedly warned Slaughter
regarding her subpar academic performance, sending her letters on
August 25, September 9 and 19, and October 10 and 15. Dr. Matz
specifically warned Slaughter that she was in jeopardy of failing one or
more of her courses. In each letter, Dr. Matz encouraged Slaughter to
seek assistance from her course director, faculty advisor, the Center for
Academic Success and Enrichment (CASE), and DMU’s student
counseling center.
On September 3, Slaughter completed a client intake form at the
student counseling center. Slaughter indicated she was seeking help for
“high anxiety and trouble falling asleep.” During her intake
appointment, Slaughter signed a document titled “Client Rights,
Responsibilities, and Informed Consent.” One of the client rights was
“[t]o know that personal information cannot be disclosed to anyone,
except for professional consultation or supervision, without your specific,
written permission.” Slaughter underwent weekly counseling sessions
with Dr. Emily Sanders, a staff psychologist employed by DMU, from
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September 9 until June 2015. During these sessions, Slaughter
discussed her history of depression and anxiety and often reported
feeling worried and depressed because of her bad performance on tests.
Slaughter did not give Dr. Sanders permission to discuss her case with
DMU’s faculty or administrators.
Meanwhile, on September 10, Slaughter completed an intake form
at CASE indicating she “would like to find a study strategy that works
best for [her].” She did not disclose her depression on the intake form.
CASE provided Slaughter with time management strategies, electronic
study resources, and one-on-one tutoring. Slaughter claims she talked
to someone at CASE about the depressive symptoms she was
experiencing and how those symptoms affected her academics, though
she could not remember the person’s name. Slaughter also claims she
discussed her depression with a student tutor from CASE.
On September 20, Slaughter emailed her faculty advisor, Shelley
Oren, about her unsuccessful performance on the second biochemistry
test. Slaughter and Oren continued to communicate, both in person and
by email, throughout the semester. Slaughter did not disclose her
depression to Oren.
On September 26, Dr. Matz met with Slaughter to discuss her poor
performance in Gross Anatomy and Clinical Medicine. He gave Slaughter
tips for labeling anatomical drawings to help her study for class. During
this meeting, Dr. Matz encouraged Slaughter to utilize resources
available at CASE.
At the end of the fall semester, Slaughter failed her biochemistry
course and performed badly in Gross Anatomy and Clinical Medicine.
On December 16, Slaughter met with the APC to discuss ways to improve
her academic performance and to discuss her academic status. During
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this meeting, Slaughter was asked to describe her study habits.
Slaughter indicated she preferred to watch lectures online instead of
attending class in person. Slaughter stated she studied six to eight
hours per day, but she was an English undergraduate major and was
uncomfortable taking multiple-choice tests. Slaughter did not tell the
APC that she was experiencing depression. She stated that she was sick
before her first biochemistry examination and that she had trouble
sleeping the night before tests. During this meeting, Slaughter was told
about the Extended Pathways to Success Program, a program that allows
students who are struggling with DMU’s traditional four-year program to
take fewer courses each semester and complete their coursework in five
years.
The following day, Slaughter met with Oren to discuss the APC
meeting and the Extended Pathways Program in more detail. During this
meeting, Slaughter disclosed for the first time that she was experiencing
depression and did not believe she could handle a fifth year of medical
school. Slaughter and Oren dispute whether Slaughter had described
her symptoms, such as difficulty falling asleep and nervousness, to Oren
earlier in the semester. Slaughter declined Oren’s request for permission
to speak directly with Dr. Matz. Instead, Slaughter promptly that day
emailed Dr. Matz disclosing her depression, stating,
[A]t the beginning of the semester I had some personal
difficulties that I didn’t entirely feel comfortable sharing in
such a large setting. I have struggled with depression for a
very long time, and at the beginning of the semester I had a
horrible relapse of sorts. My normally well controlled
disorder ended up severely affecting my life in ways it hasn’t
in many years. I was barely making it through the day
without breaking down, and all the emotional energy it took
for me to save face at school was so exhausting that by the
time I would get home I had difficulty focusing on my
coursework. I was extremely demoralized because of doing
poorly it just ended up as this vicious cycle. There would be
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days where I couldn’t get anything done and then I would get
really behind, then crammed right before the test, do poorly,
and then go right back into depression. I started seeing a
therapist when I was about half of the way through biochem
and as I have been working with her my mood has improved,
making it easier for me to focus on school.
Slaughter also expressed her preference not to enter the Extended
Pathways to Success Program:
My fear is that stretching [the program] out in a longer
period of time would be extremely detrimental for my mental
health, I know I can handle this type of environment for
another 3 semesters, but adding on a whole year would be
devastating and I fear greatly that I would end up being
severely depressed. I really want you to know that my
resistance of going to the 5 year plan isn’t out of
stubbornness or pride, but out of self-preservation. I truly
believe that this option would not be beneficial to me at all
and instead would be harmful, because my issue is finding
the tools that work best for me and getting my depression
under control, which would be hindered.
Dr. Matz responded to Slaughter’s email within fifteen minutes, stating
that he appreciated her sharing that information and that the APC
“want[ed her] to succeed.” Dr. Matz did not share Slaughter’s email or
any information about Slaughter’s depression with the APC.
On December 18, Dr. Matz wrote to Slaughter to inform her that
the APC had decided to place her on academic probation. As a standard
term of that probation, Slaughter was required to withdraw from her
elective courses for the next semester so she could focus on her core
classes. Dr. Matz again encouraged Slaughter to use the student
counseling center and CASE, attend all classes, and enter the Extended
Pathways to Success Program.
On January 7, 2015, Slaughter met with Dr. Craig Canby, the
Associate Dean for Academic Curriculum and Medical Programs, to
discuss DMU’s policies with regard to academic probation and academic
dismissal and to develop an action plan for the upcoming semester. The
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action plan consisted of study strategies designed to help Slaughter learn
course material. Dr. Canby was unaware of Slaughter’s depression.
Dr. Canby later stated that had he known, “[i]t would have changed the
nature of [the] conversation,” and he likely would have advised her to
seek an accommodation or to take a medical leave of absence.
Also in early January, Oren contacted Slaughter to see whether
she would like to talk more about the Extended Pathways Program.
Slaughter responded that she was “doing fine” and was “still planning on
sticking with the 4 year plan.” Oren met with Slaughter one-on-one
several times during the second semester to discuss her progress,
including meetings on January 7 and 30 and April 10. Oren told
Slaughter that she could contact her at any time with questions.
Slaughter continued to struggle academically throughout the
second semester, although she ultimately passed the biochemistry
course that she had failed first semester. Slaughter met with Dr. Matz in
February to discuss her poor performance in her required physiology
course. Dr. Matz explained the consequences of failing two courses in
the first year, including possible dismissal from DMU.
Slaughter failed physiology and performed poorly in other second
semester courses. She ended the second semester with a GPA of 1.88,
lower than her first semester GPA of 2.53. Under DMU policy, Slaughter
was required to appear before the APC for a dismissal hearing for failing
two of her required first-year courses. Slaughter attended the dismissal
hearing with the APC on June 30. At Slaughter’s request, Dr. Sanders
appeared as her advisor. Slaughter discussed her academic performance
as well as her use of the DMU resources. She expressed her preference
to retake physiology over the summer instead of entering the Extended
Pathways Program. Slaughter told the APC that she believed most of her
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struggles were due to her depression. Regardless, she argued there was
an upward trend with her individual physiology test grades.
On July 7, Slaughter was notified that the APC had voted to
dismiss her from DMU due to her failing two required first-year courses
and her lack of academic professional promise. Slaughter appealed the
APC decision. On appeal, DMU concluded the APC complied with DMU’s
policies and due process and affirmed Slaughter’s dismissal.
Slaughter filed a complaint with the Iowa Civil Rights Commission,
alleging disability discrimination in violation of the Iowa Civil Rights Act
(ICRA). After obtaining a right-to-sue letter, she filed this three-count
lawsuit under the ICRA against DMU, alleging discrimination, failure to
accommodate, and retaliation based on her mental disability.
After conducting discovery, DMU moved for summary judgment on
all counts. DMU’s motion stated, “The undisputed material facts
demonstrate that DMU reasonably accommodated Slaughter throughout
her enrollment at DMU. Accordingly, Slaughter cannot prove her failure
to accommodate claim.” DMU noted in its statement of undisputed facts,
The sole accommodations that Slaughter claims she
proposed to DMU, but did not receive, are 1) the ability to
watch classes online, in lieu of attending them in person,
and 2) the ability to take electives while on academic
probation.
DMU supported its motion with sworn testimony (deposition excerpts
and affidavits). Slaughter resisted and filed a cross-motion for partial
summary judgment on her accommodation claim. She denied that the
accommodations DMU identified were the sole accommodations she
sought, but she did not identify what other accommodations she
requested. In DMU’s reply to Slaughter’s resistance, it noted, “Slaughter
has pointed to no evidence that she requested a reasonable
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accommodation that would have enabled her to meet the essential
eligibility requirement of passing her required first-year courses.” DMU
continued,
Slaughter has pointed to no evidence that she could have
been reasonably accommodated, but for DMU’s alleged lack
of good faith . . . . Instead, Slaughter states that “we will
never know” whether she could have performed with
reasonable accommodations. Such speculation is not
sufficient to survive summary judgment.
Slaughter also filed a “motion to determine admissibility [of evidence,]”
which sought a ruling that imputed Dr. Sanders’s knowledge of
Slaughter’s depression to DMU. Slaughter argued that because
Dr. Sanders is employed by DMU, her knowledge of Slaughter’s
depression should be imputed to the University as of September 2014
when their counseling sessions began—about three months before
Slaughter first disclosed her depression to the academic decision-
makers. DMU resisted.
The district court determined that the psychotherapist–patient
privilege applied to the communications between Slaughter and
Dr. Sanders and that Slaughter had not waived the privilege. The district
court concluded, “To the extent Dr. Sanders has knowledge of
[Slaughter’s] mental health condition pursuant to her role as a treatment
provider, that knowledge cannot be imputed to DMU in its role as an
academic institution.” The district court also noted provisions in Iowa
Code chapter 228 (2014) mandated confidentiality of mental health
information. For those reasons, the district court denied Slaughter’s
evidentiary motion.
At the hearing on the motions, Slaughter abandoned her
discrimination claim (count I) and retaliation claim (count III). The
district court granted summary judgment in favor of DMU dismissing
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those claims, and Slaughter does not appeal those rulings. With regard
to Slaughter’s failure-to-accommodate claim (count II), the district court
concluded that DMU became aware of Slaughter’s mental disability on
December 17, 2014, when she informed Oren and Dr. Matz of her
depression. The district court rejected Slaughter’s claim that DMU failed
to engage in good faith in an interactive process to accommodate her
depression.
From the fall of 2014 until the time she was dismissed in the
spring of 2015, DMU officials consistently communicated
with plaintiff and sought methods to help her improve her
academic performance. There was no breakdown in
communications. Even viewed in the light most favorable to
plaintiff, a reasonable fact finder could not find that DMU
failed to act in good faith when engaging in an interactive
process to accommodate plaintiff and assist her in satisfying
DMU’s academic standards despite her depression.
The court also rejected Slaughter’s argument that a reasonable
accommodation “would have been discovered but for DMU’s bad faith.”
The district court noted Slaughter “offers no evidence that DMU denied
any reasonable accommodation she suggested” and that she explicitly
conceded “there is no way of knowing whether she could have been
successful in meeting DMU’s academic standards had she been
accommodated differently.” The district court entered summary
judgment dismissing count II, stating,
On this record, plaintiff has not suggested any
accommodations which would have enabled her to pass her
classes. Even viewed in the light most favorable to plaintiff,
no reasonable factfinder could find that but for DMU’s bad
faith, plaintiff could have satisfied DMU’s academic
standards with a reasonable accommodation.
Slaughter appealed, and we retained her appeal.
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II. Standard of Review.
We review rulings on the admissibility of allegedly privileged
communications for abuse of discretion. State v. Anderson, 636 N.W.2d
26, 30 (Iowa 2001). We review rulings interpreting a statutory privilege
for correction of errors at law. Id.; Fagen v. Grand View Univ., 861
N.W.2d 825, 829 (Iowa 2015).
“We review summary judgment rulings for correction of errors at
law.” Deeds v. City of Marion, 914 N.W.2d 330, 339 (Iowa 2018).
“Summary judgment is proper when the movant establishes there is no
genuine issue of material fact and it is entitled to judgment as a matter
of law.” Id. (quoting Goodpaster v. Schwan’s Home Serv., Inc., 849
N.W.2d 1, 6 (Iowa 2014)). “We view the record in the light most favorable
to the nonmoving party.” Id.
III. Analysis.
We first address whether the district court erred in denying
Slaughter’s motion for an evidentiary ruling imputing her
psychotherapist’s knowledge of her mental disability to DMU’s academic
decision-makers. We conclude the district court correctly applied the
statutory confidentiality requirements for mental health treatment in
Iowa Code chapter 228 to deny Slaughter’s motion. We next address
whether the district court erred in granting DMU’s motion for summary
judgment on Slaughter’s failure-to-accommodate claim. We conclude the
district court correctly granted summary judgment for DMU based on the
undisputed facts. Slaughter is unable to identify any reasonable
accommodation she requested that DMU refused. She cannot show that
a reasonable accommodation existed that would have allowed her to
meet DMU’s academic standards.
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A. Slaughter’s Motion to Impute Her Psychotherapist’s
Confidential Knowledge to DMU. It is undisputed that Dr. Sanders
was employed by DMU as a staff psychologist in DMU’s student
counseling center when she treated Slaughter for depression beginning
in September 2014. Slaughter argues that Dr. Sanders’s knowledge of
her depression learned while treating her must be imputed to DMU
under principles of agency law. 1 See John Q. Hammons Hotels, Inc. v.
Acorn Window Sys., Inc., 394 F.3d 607, 611 (8th Cir. 2005) (“It has long
been held in Iowa that where information is imparted to an employee,
acting within the scope of his employment, the knowledge of the
employee is imputed to the employer under principles of agency law.”).
The district court rejected that argument, ruling that this general
principle of agency law yields to the psychotherapist–patient privilege
and statutory confidentiality for mental health treatment
notwithstanding Dr. Sanders’s status as an employee of DMU. This is a
question of first impression in Iowa. 2
We begin by addressing the scope of the statutory restrictions on
sharing mental health treatment information. We then address whether
the statutory nondisclosure requirements trump the general principle of
agency law imputing an employee’s knowledge to the employer.
1Slaughter also argues that the knowledge of Oren, her faculty adviser, should
be imputed on DMU. However, the record does not show that Slaughter discussed her
depression with Oren at any time before the APC meeting on December 16, 2014.
Slaughter told Oren about her depression the following day, immediately before
Slaughter emailed Dr. Matz disclosing her depression for the first time. Because Oren
only knew of Slaughter’s disability minutes before Slaughter disclosed it to Dr. Matz, we
see no basis for reversal.
2In Deeds, we declined to impute a physician’s knowledge of a job applicant’s
disability to the prospective employer, City of Marion, because the record showed the
physician (hired by the city to perform preemployment physicals) was an independent
contractor, not the city’s employee or agent. 914 N.W.2d at 349.
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1. Statutory prohibitions on disclosure of mental health information.
The district court relied on two Iowa statutes protecting the privacy of
mental health information: Iowa Code sections 622.10 and 228.2. We
will address each in turn. Section 622.10 codifies the psychotherapist–
patient privilege for evidentiary purposes and provides,
A . . . mental health professional, . . . who obtains
information by reason of the person’s employment . . . shall
not be allowed, in giving testimony, to disclose any
confidential communication properly entrusted to the person
in the person’s professional capacity, and necessary and
proper to enable the person to discharge the functions of the
person’s office according to the usual course of practice or
discipline.
Iowa Code § 622.10(1). The term “mental health professional” includes
psychologists licensed under Iowa Code chapter 154B. Id. § 622.10(7).
The parties agree that Dr. Sanders is a mental health professional within
the meaning of section 622.10. “The privilege [of Iowa Code 622.10]
extends to medical records that contain information which would be
inadmissible at trial as oral testimony from the physician.” State v.
Eldrenkamp, 541 N.W.2d 877, 881 (Iowa 1995). The testimonial privilege
in section 622.10 also limits discovery into physician–patient
communications. Chung v. Legacy Corp., 548 N.W.2d 147, 151 (Iowa
1996).
The purpose of the psychotherapist–patient “privilege is ‘to promote
free and full communication between a patient and his doctor so that the
doctor will have the information necessary to competently diagnose and
treat the patient.’ ” Fagen, 861 N.W.2d at 831–32 (quoting State v.
Heemstra, 721 N.W.2d 549, 560–61 (Iowa 2006)). We construe section
622.10 liberally to carry out this purpose. Id. “We have repeatedly
emphasized ‘the importance of maintaining confidentiality in mental
health treatment.’ ” In re A.M., 856 N.W.2d 365, 377 (Iowa 2014)
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(quoting State v. Thompson, 836 N.W.2d 470, 483 (Iowa 2013)). Indeed,
“[t]he American Psychiatric Association has recognized that
confidentiality is essential to effective treatment.” Id. “[A] right as
valuable as a psychotherapist privilege should not be deemed to be
waived by implication except under the clearest of circumstances.”
Heemstra, 721 N.W.2d at 560.
The district court ruled that section 622.10 applies to preclude
imputing Dr. Sanders’s knowledge gained treating Slaughter to DMU.
We reach a different conclusion. “The physician–patient rule provided in
section 622.10 is an evidentiary rule rather than a substantive right.”
Roosevelt Hotel Ltd. P’ship v. Sweeney, 394 N.W.2d 353, 355 (Iowa 1986).
We have not applied section 622.10 outside of litigation to mandate
confidentiality of physician–patient communications. See id. (noting “the
medical profession’s self-imposed standard of conduct, originating in the
Hippocratic oath, that a physician not disclose a patient’s confidences
without the patient’s consent, except as authorized or required by law”).
Accordingly, we do not rely on section 622.10 here.
The district court, however, properly relied on Iowa Code section
228.2, which more broadly restricts disclosure of mental health
information.
Except as specifically authorized in [sections not relevant
here], a mental health professional, data collector, or
employee or agent of a mental health professional, of a data
collector, or of or for a mental health facility shall not
disclose or permit the disclosure of mental health
information.
Iowa Code § 228.2(1). Chapter 228 permits certain limited disclosures.
For example, a patient eighteen years or older may consent to the
disclosure of mental health information. Id. § 228.3(1). Slaughter,
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however, did not give Dr. Sanders consent to divulge Slaughter’s
depression to DMU’s academic decision-makers.
Slaughter instead relies on another exception stating, “Mental
health information relating to an individual may be disclosed to other
providers of professional services or their employees or agents if and to
the extent necessary to facilitate the provision of administrative and
professional services to the individual.” Id. § 228.5(4). Slaughter argues
that section 228.5(4) required Dr. Sanders to disclose Slaughter’s name
and diagnosis to DMU’s accommodation specialists so they could provide
Slaughter with services.
The district court correctly found this disclosure provision to be
inapplicable. “Professional services” are defined to “mean[] diagnostic or
treatment services for a mental or emotional condition provided by a
mental health professional.” Id. § 228.1(8). DMU’s academic
accommodation specialists are not mental health professionals who
would diagnose or treat Slaughter’s anxiety and depression.
“Administrative information” relates to billing information but does not
include the patient’s diagnosis. Id. § 228.1(1). Section 228.5(4) would
not allow Dr. Sanders to disclose Slaughter’s depression to DMU’s
academic decision-makers. In addition, the Federal Health Insurance
Portability and Accountability Act of 1996 (HIPAA) mandates
confidentiality of mental health treatment. See generally Pub. L.
No. 104–191, 110 Stat. 1936 (codified in scattered sections of 18, 26, 29,
and 42 U.S.C.); Harrold-Jones v. Drury, 422 P.3d 568, 570–77 (Alaska
2018) (noting “cultural shift emphasizing medical privacy” and reviewing
HIPPA requirements and interplay with state law); In re A.M., 856 N.W.2d
at 379–80 (reviewing HIPAA privacy regulations); 45 C.F.R. pts. 160, 164
(2014) (HIPAA privacy regulations).
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The district court correctly concluded that Dr. Sanders was
prohibited from divulging Slaughter’s mental health information to DMU
without a waiver from Slaughter, which she had not provided. Indeed,
other courts have recognized a psychotherapist’s tort liability for
unauthorized disclosure of a patient’s confidential information. See, e.g.,
Gracey v. Eaker, 837 So. 2d 348, 353, 357 (Fla. 2002). The statutory
protections against disclosure of mental health information do not
depend on who pays the therapist’s salary. The same confidentiality
applies whether the therapist is in private practice or a university
employee. A contrary holding would have a chilling effect on the
willingness of students to open up to psychotherapists employed by their
university.
2. Exceptions to agency law principles generally imputing an
employee’s knowledge to the employer. Slaughter nevertheless argues
that under principles of agency law, Dr. Sanders’s knowledge of
Slaughter’s disability should be imputed to DMU’s academic decision-
makers for purposes of determining whether DMU failed to reasonably
accommodate her. “Iowa subscribes to the well-settled rule that
‘ordinarily knowledge of an agent is imputed to the principal.’ ” John Q.
Hammons Hotels, Inc., 394 F.3d at 611 (quoting Mechanicsville Tr. & Sav.
Bank v. Hawkeye-Sec. Ins., 158 N.W.2d 89, 91 (Iowa 1968)). But here,
this general rule must yield to an exception for privileged
communications.
The Restatement (Third) of Agency provides,
For purposes of determining a principal’s legal
relations with a third party, notice of a fact that an agent
knows or has reason to know is imputed to the principal if
knowledge of the fact is material to the agent’s duties to the
principal, unless the agent
....
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(b) is subject to a duty to another not to disclose the
fact to the principal.
Restatement (Third) of Agency § 5.03(b), at 359 (Am. Law Inst. 2006)
[hereinafter Restatement (Third)].
Because Dr. Sanders owes a statutory duty to Slaughter not to
disclose the information she learns during her counseling sessions,
Dr. Sanders’s knowledge of Slaughter’s disability cannot be imputed to
the academic decision-makers at DMU. See Reinninger v. Prestige
Fabricators, Inc., 523 S.E.2d 720, 725 (N.C. Ct. App. 1999) (holding that
a company physician’s knowledge gained from confidential
communications with employee–patient could not be imputed to the
employer to show that there was improper ex parte communication
between the employer and physician); Restatement (Third) § 5.03(b)
cmt. e, at 374–75; see also Farnsworth v. Hazelett, 197 Iowa 1367, 1373,
199 N.W. 410, 413 (1924) (“When [the knowledge] has been acquired
confidentially as attorney for a former client in a prior transaction, the
reason of the rule ceases, and in such a case an agent would not be
expected to do that which would involve the betrayal of professional
confidence; and his principal ought not to be bound by his agent’s secret
and confidential information.” (alteration in original) (quoting Akers v.
Rowan, 12 S.E. 165, 172 (S.C. 1890))).
We hold the disclosure restrictions in Iowa Code chapter 228 and
HIPAA fall within this exception to the general principle of agency law
imputing an employee’s knowledge to the employer. The district court
correctly ruled that confidential information Dr. Sanders learned while
treating Slaughter is not imputed to DMU. We affirm the ruling denying
Slaughter’s evidentiary motion.
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B. Slaughter’s Failure-to-Accommodate Claim. The district
court granted DMU’s motion for summary judgment dismissing
Slaughter’s claim the medical school failed to accommodate her mental
disability. Slaughter argues questions of fact precluded summary
judgment. DMU argues summary judgment was correctly granted based
on the undisputed facts. We begin by reviewing the governing law. We
then determine whether the district court correctly applied the law to this
factual record.
1. Failure-to-accommodate claims in higher education. Slaughter
brought her action under the ICRA. The ICRA “shall be construed
broadly to effectuate its purposes.” Iowa Code § 216.18(1). “It is an
unfair or discriminatory practice for any educational institution to
discriminate on the basis of . . . disability in any program or activity.” Id.
§ 216.9(1). In Palmer College of Chiropractic v. Davenport Civil Rights
Commission, we reviewed disability claims against a chiropractic school.
850 N.W.2d 326, 328–29 (Iowa 2014). We looked to cases interpreting
the Americans with Disabilities Act (ADA) and the Rehabilitation Act as
well as employment discrimination cases for guidance analyzing
disability discrimination claims brought under the ICRA against a
graduate school. Id. at 333–34. We acknowledged courts owe “some
deference to the institution’s professional or academic judgment” in
determining its obligation to reasonably accommodate a student’s
disability. Id. at 337. But we concluded the educational institution
has a “real obligation” to seek out “suitable means of
reasonably accommodating” individuals with disabilities and
to submit “a factual record indicating” it “conscientiously
carried out this statutory obligation.” That obligation
requires an individualized and extensive inquiry—an
institution must “carefully consider[] each disabled student’s
particular limitations and analyz[e] whether and how it
might accommodate that student in a way that would allow
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the student to complete the school’s program without
lowering academic standards.”
Id. (alterations in original) (citation omitted) (first quoting Wynne v. Tufts
Univ. Sch. of Med., 932 F.2d 19, 25–26 (1st Cir. 1991); then quoting
Wong v. Regents of Univ. of Cal., 192 F.3d 807, 826 (9th Cir. 1999)).
Judicial deference to the institution is especially appropriate for
purely academic requirements. See Regents of Univ. of Mich. v. Ewing,
474 U.S. 214, 225, 106 S. Ct. 507, 513 (1985) (“When judges are asked
to review the substance of a genuinely academic decision, such as this
one, they should show great respect for the faculty’s professional
judgment. Plainly, they may not override it 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.” (Footnote omitted.)); see also Palmer, 850 N.W.2d
at 339 (applying Ewing to evaluate requested accommodation to
technical standards in chiropractic program).
The student asserting a failure-to-accommodate claim must show
that (1) she is disabled, (2) the defendant had notice of her disability,
(3) she is an “otherwise qualified” student either with or without a
reasonable accommodation, and (4) the defendant failed to provide
reasonable accommodations. Mershon v. St. Louis Univ., 442 F.3d 1069,
1076–77 (8th Cir. 2006); see also Palmer, 850 N.W.2d at 334. “A . . .
disabled person is ‘otherwise qualified’ to participate in a program if she
can meet its necessary requirements with reasonable accommodation.”
Kaltenberger v. Ohio Coll. of Podiatric Med., 162 F.3d 432, 435 (6th Cir.
1998). 3
3See also Palmer, 850 N.W.2d at 334 (defining “qualified individual” under the
Rehabilitation Act as someone “who meets the academic and technical standards
requisite to admission or participation in the recipient’s education program or activity,”
34 C.F.R. § 104.3(l)(3) (2013), and defining a “qualified individual with a disability”
20
The student “bears the initial burden of demonstrating that he
requested reasonable accommodations ... and that those
accommodations would render him otherwise qualified” to meet the
educational institution’s essential eligibility requirements. Mershon, 442
F.3d at 1077. As we have said in the employment context, “the plaintiff
must produce enough evidence to make a facial showing that reasonable
accommodation is possible.” Boelman v. Manson State Bank, 522 N.W.2d
73, 80 (Iowa 1994). “This showing is not an onerous one and requires no
more of the employee than to propose an accommodation and present
testimony of its feasibility.” Goodpaster, 849 N.W.2d at 17; see also
Miceli v. JetBlue Airways Corp., 914 F.3d 73, 83 (1st Cir. 2019) (affirming
summary judgment for employer and stating the employee’s request for
accommodation for her depression and PTSD “must comprise more than
a cryptic communication to be deciphered by the recipient” and
“[i]mportantly, such a request must illuminate the linkage between the
requestor’s disability and the requested accommodation”).
An accommodation is unreasonable “if it requires ‘a fundamental
alteration’ ” to the academic program. Palmer, 850 N.W.2d at 336
(quoting Se. Cmty. Coll. v. Davis, 442 U.S. 397, 410–12, 99 S. Ct. 2361,
2369–70 (1979)). “It is beyond question that it would fundamentally
alter the nature of a graduate program to require the admission of a
disabled student who cannot, with reasonable accommodations,
otherwise meet the academic standards of the program.” Mershon, 442
F.3d at 1076.
_______________________
under the ADA as someone “who, with or without reasonable modifications to rules,
policies, or practices . . . or the provision of auxiliary aids and services, meets the
essential eligibility requirements for the receipt of services or the participation in
programs or activities provided,” 42 U.S.C. § 12131(2) (2006)).
21
The student’s request for accommodations triggers the interactive
process. Id. at 1077; see also Zukle v. Regents of the Univ. of Cal., 166
F.3d 1041, 1046–47 (9th Cir. 1999). In the employment context,
[t]o show that an employer failed to participate in the
interactive process, an employee must show that: (1) the
employer knew of the employee’s disability; (2) the employee
requested accommodations or assistance; (3) the employer
did not in good faith assist the employee in seeking
accommodations; and (4) the employee could have been
reasonably accommodated but for the employer’s lack of
good faith.
Kallail v. Alliant Energy Corp. Servs., Inc., 691 F.3d 925, 933 (8th Cir.
2012). The parties agree we should use this standard in the educational
context when evaluating failure-to-accommodate claims under the ICRA.
2. DMU’s actions in attempting to accommodate Slaughter. DMU
agrees that Slaughter is disabled within the meaning of the ICRA, that
DMU had notice of her mental disability, and that the interactive process
was triggered by Slaughter’s email of December 17, 2014. The parties
agree that without an accommodation, Slaughter was not a qualified
individual for DMU’s medical degree program. It is undisputed that she
failed two required courses and performed poorly in other courses her
first year. Her second semester GPA declined to 1.88 from a first
semester GPA of 2.53, lowering her cumulative GPA to 2.19. Her poor
performance provided grounds for her expulsion under DMU’s academic
standards. She does not appeal the district court’s summary judgment
dismissing her disability discrimination and retaliation claims. The sole
issue is whether the district court erred by granting summary judgment
on her failure-to-accommodate claim.
The district court relied on undisputed facts. DMU offered
Slaughter the Extended Pathways to Success Program, extending the
medical school program a fifth year, which she refused. DMU provided
22
her weekly psychotherapy at no cost and one-on-one tutoring throughout
her first year, as well as regular consultations with her faculty advisor
and Dr. Matz, the chair of the APC. She still failed to meet the academic
requirements. At Slaughter’s request, DMU permitted her to monitor
lectures online instead of sitting in the classroom. She asked for
permission to continue taking elective courses while on academic
probation, which DMU refused. DMU’s policy is to defer elective courses
to enable the student struggling on academic probation to concentrate on
required courses. We defer to DMU’s academic judgment. See Ewing,
474 U.S. at 225, 106 S. Ct. at 513; see also Shaikh v. Lincoln Mem’l
Univ., 608 F. App’x 349, 355 (6th Cir. 2015) (holding as a matter of law
that a medical student’s request for a decelerated five-year rather than a
four-year curriculum was not a reasonable accommodation). Slaughter
never explained how increasing her workload with electives would have
helped her pass the core courses. She never asked for an academic
withdrawal or medical leave. She never asked for additional time during
examinations. She never asked for additional tutoring, academic
counseling, or psychotherapy beyond that already provided to her. She
never asked for any additional physical assistance. She was denied no
request for equipment or technical support.
DMU interacted extensively with Slaughter to help her meet its
academic standards before and after she disclosed her depression. We
decline to disregard DMU’s efforts to accommodate Slaughter’s academic
struggles that preceded her disclosure. She attributes her academic
struggles to her depression, and the extra assistance DMU provided her
was to assist her academic performance. The district court correctly
concluded,
23
Arguably, DMU’s actions were not specifically directed at
accommodating plaintiff’s claimed disability of depression.
However, DMU consistently worked with plaintiff and offered
options and resources to help her succeed as a student, and
it is immaterial whether those actions are characterized as
efforts to accommodate her disability or efforts to improve
her academic performance. The fact that DMU offered the
same types of services and resources to other students who
do not have disabilities cannot be held against the
university. What counts is whether DMU engaged in a
process with plaintiff that would allow the parties to discover
reasonable accommodations that would allow plaintiff to
succeed with her coursework.
(Citation omitted.) Similarly, in Halpern v. Wake Forest University Health
Sciences, the United States Court of Appeals for the Fourth Circuit
weighed a medical school’s efforts to assist a struggling student before
and after he disclosed his anxiety disorder and attention
deficit/hyperactivity disorder (ADHD). 669 F.3d 454, 466 (4th Cir.
2012). The Fourth Circuit affirmed summary judgment, dismissing a
failure-to-accommodate mental disability claim based on the school’s
“significant efforts throughout the period of Halpern’s enrollment to help
him satisfy its academic and professional standards.” Id. That court
saw no reason to disregard assistance provided before the plaintiff
disclosed his mental diagnosis, nor do we. In any event, the
psychotherapy provided by Dr. Sanders throughout the year was
specifically treating Slaughter’s depression.
We agree with the district court that Slaughter has failed to
identify any reasonable accommodation she requested that DMU refused.
She named no such requested accommodation in resisting summary
judgment, in her appellate briefs, or in her counsel’s oral argument in
this appeal.
This case is unlike Dean v. University at Buffalo School of Medicine
& Biomedical Sciences, in which the medical student suffering from
24
depression actually “requested a three-month leave to seek medical
treatment and study” for a required examination. 804 F.3d 178, 190–91
(2d Cir. 2015). The school denied his request. Id. at 191. The district
court granted summary judgment dismissing his ADA failure-to-
accommodate claim. Id. at 182. The appellate court reversed,
concluding the student met his initial burden resisting summary
judgment by showing the existence of an accommodation he requested
that would allow him to meet the essential requirements of the program
and that a jury could find the abbreviated study time offered by the
school would be ineffective. Id. at 190–91. The Dean court noted the
plaintiff “offered evidence to establish that he was not treated in an
evenhanded manner with respect to similarly situated students.” Id. at
189.
By contrast, Slaughter never asked DMU for medical leave and
offered no evidence that similarly situated students were treated more
favorably. Apart from what she requested while a student at DMU,
Slaughter subsequently failed to identify any possible accommodation
she claims could have enabled her to meet DMU’s academic standards.
Slaughter and her counsel, prior to summary judgment, were well aware
of Dr. Canby’s testimony that he would have considered offering her a
medical leave. Nevertheless, Slaughter from the inception of this lawsuit
through oral argument and resolution of this appeal never mentioned
medical leave as a possible accommodation she would have accepted.
She made no claim for medical leave in her district court resistance to
summary judgment or at any point in this appeal. It is not the court’s
role to propose medical leave on her behalf. 4
4It may well be that Slaughter did not want medical leave for the same reasons
she expressly declined the offer to enter into the Extended Pathways to Success
25
We decline to speculate that continued interaction would have
revealed a reasonable accommodation that Slaughter and her counsel
had yet to discover. See Hlubek v. Pelecky, 701 N.W.2d 93, 96 (Iowa
2005) (“Speculation is not sufficient to generate a genuine issue of fact.”).
We are applying the plain meaning of our rule of civil procedure
governing summary judgment, which provides,
When a motion for summary judgment is made and
supported as provided in this rule, an adverse party may not
rest upon the mere allegations or denials in the pleadings,
but the response, by affidavits or as otherwise provided in
this rule, must set forth specific facts showing that there is a
genuine issue for trial. If the adverse party does not so
respond, summary judgment, if appropriate, shall be
entered.
Iowa R. Civ. P. 1.981(5). As we have long emphasized,
The resistance must set forth specific facts which constitute
competent evidence showing a prima facie claim. By
requiring the resister to go beyond generalities, the basic
purpose of summary judgment procedure is achieved: to
weed out “[p]aper cases and defenses” in order “to make way
for litigation which does have something to it.”
Thompson v. City of Des Moines, 564 N.W.2d 839, 841 (Iowa 1997)
(alteration in original) (quoting Fogel v. Trs. of Iowa Coll., 446 N.W.2d
451, 454 (Iowa 1989)).
Summary judgment is not a dress rehearsal or practice run;
“it is the put up or shut up moment in a lawsuit, when a
[nonmoving] party must show what evidence it has that
would convince a trier of fact to accept its version of the
events.”
_______________________
Program. In any event, “[w]hile allowing a medical leave of absence might, in some
circumstances, be a reasonable accommodation, ‘[a]n employer is not required by the
ADA . . . to provide an unlimited absentee policy.’ ” Brannon v. Luco Mop Co., 521 F.3d
843, 849 (8th Cir. 2008) (citation omitted) (quoting Buckles v. First Data Res., Inc., 176
F.3d 1098, 1101 (8th Cir. 1999); see also id. (affirming summary judgment for employer
on grounds that employee “failed to demonstrate that her requested accommodation of
additional time off to recuperate would have enabled her to have consistent attendance
at work”).
26
Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005)
(quoting Schacht v. Wis. Dep’t of Corr., 175 F.3d 497, 504 (7th Cir. 1999),
overruled on other grounds as stated in Higgins v. Mississippi, 217 F.3d
951, 954 (7th Cir. 2000); see also Drainage Dist. No. 119 v. Incorporated
City of Spencer, 268 N.W.2d 493, 499 (Iowa 1978) (“The purpose of
summary judgment is to enable a judgment to be obtained promptly and
without the expense of a trial when there is no genuine and material fact
issue present.”); Bauer v. Stern Fin. Co., 169 N.W.2d 850, 853 (Iowa
1969) (“The purpose of all summary judgment rules is to avoid useless
trials. . . . [A] party may not ‘rest upon the mere allegations or denials of
his pleading.’ He must set forth specific facts showing there is a genuine
issue. He cannot merely say there is one; but it must appear ‘by
affidavits or otherwise’ that this is the case.”); James v. Swiss Valley Ag
Serv., 449 N.W.2d 886, 888 (Iowa Ct. App. 1989) (“Summary judgment
procedure is properly regarded not as a disfavored procedural shortcut,
but rather as an integral part of the Federal Rules as a whole, which are
designed ‘to secure the just, speedy and inexpensive determination of
every action.’ ” (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106
S. Ct. 2548, 2555 (1986))).
We need not decide whether DMU should have done more to
engage in the interactive process with Slaughter. 5 To avoid summary
5Thiscase is factually distinguishable from Taylor v. Phoenixville School District,
184 F.3d 296 (3d Cir. 1999). The plaintiff in Taylor, a secretary to an elementary school
principal, had performed her job with exemplary reviews for almost twenty years until
she began experiencing the onset of a manic episode while at work. Id. at 302. The
plaintiff took a leave of absence and was admitted to a psychiatric hospital where she
was diagnosed with bipolar disorder. Id. at 302–03. After approximately three weeks of
hospitalization, the plaintiff was discharged with orders to continue taking medication
and meeting with a psychiatrist. Id. at 303. The plaintiff returned to work and sought
accommodations from her employer. Id. Instead of offering accommodations, her
employer increased the difficulty of her job and began documenting her mistakes. Id. at
303–05. The plaintiff was eventually terminated from her position. Id. at 305.
 27
judgment, Slaughter had to make a facial showing that a reasonable
accommodation existed that could have enabled her to meet the medical
school’s academic requirements. She made no such showing. Other
courts have affirmed summary judgment dismissing failure-to-
accommodate claims when the plaintiff lacked evidence that a reasonable
accommodation existed, even if the defendant had failed to engage in an
adequate interactive process. See, e.g., Stern v. St. Anthony’s Health Ctr.,
788 F.3d 276, 293 (7th Cir. 2015) (“But regardless of the state of the
record, an employer’s failure ‘to engage in the required [interactive]
process . . . need not be considered if the employee fails to present
evidence sufficient to reach the jury on the question of whether she was
able to perform the essential functions of her job with an
accommodation.’ ” (alterations in original) (quoting Basden v. Prof’l
Transp., Inc., 714 F.3d 1034, 1039 (7th Cir. 2013))); EEOC v. Ford Motor
Co., 782 F.3d 753, 766 (6th Cir. 2015) (concluding that if an employee
cannot generate a fact question as to whether a reasonable
accommodation, the employer will not be liable “[e]ven if [the employer]
did not put sufficient effort into the ‘interactive process’ of finding an
accommodation”); Jacobs v. N.C. Admin. Office of the Cts., 780 F.3d 562,
581 (4th Cir. 2015) (“However, an employer will not be liable for failure to
engage in the interactive process if the employee ultimately fails to
_______________________
The Taylor court determined that “[a] reasonable jury could conclude that the
school district did not engage in an interactive process of seeking accommodations and
is responsible for the breakdown in the [interactive] process.” Id. at 315. The court
concluded, “Given the evidence [the plaintiff] presents of bad faith on the school
district’s part, we will not decide on summary judgment that it would have been
fruitless for the school district to make some modest and fairly obvious efforts to
accommodate.” Id. at 319 (emphasis added); see also id. (discussing possible
reasonable accommodations). The Third Circuit noted, however, that if the jury
determined the employer had not caused the breakdown in the interactive process, the
plaintiff still “must demonstrate that a specific, reasonable accommodation would have
allowed her to perform the essential functions of her job.” Id. at 320.
 28
demonstrate the existence of a reasonable accommodation that would
allow her to perform the essential functions of the position.”); Jones v.
Nationwide Life Ins., 696 F.3d 78, 91 (1st Cir. 2012) (noting “[a]n
employer’s duty to accommodate does not arise unless (at a bare
minimum) the employee is able to perform the essential functions of [his]
job with an accommodation[,]” and “[i]t was [the employee’s] burden ‘to
proffer accommodations that were reasonable under the circumstances’ ”
(quoting Jones v. Walgreen Co., 679 F.3d 9, 19 & n.6 (1st Cir. 2012)));
Hennagir v. Utah Dep’t of Corr., 587 F.3d 1255, 1265 (10th Cir. 2009)
(“Even if [an employer] fail[s] to fulfill its interactive obligations to help
secure a [reasonable accommodation], [the plaintiff] will not be entitled to
recovery unless [s]he can also show that a reasonable accommodation
was possible. . . .” (alterations in original) (quoting Smith v. Midland
Brake, Inc., 180 F.3d 1154, 1174 (10th Cir. 1999) (en banc))); McBride v.
BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 101 (2d Cir. 2009) (“The
employer’s failure to engage in such an interactive process, however,
does not relieve a plaintiff of her burden of demonstrating, following
discovery, that some accommodation of her disability was possible.”). 6
But see Snapp v. United Transp. Union, 889 F.3d 1088, 1100 (9th Cir.
2018) (taking minority view by holding at summary judgment stage
employer has the burden to show no reasonable accommodation existed),
cert. denied, 139 S. Ct. 817 (2019).
In Stern v. University of Osteopathic Medicine & Health Sciences,
the Eighth Circuit affirmed summary judgment dismissing a medical
student’s failure-to-accommodate claims under the ICRA and federal law.
6The court in Snapp v. United Transportation Union set fort the foregoing
authorities in its opinion. 889 F.3d 1088, 1099–1100 (9th Cir. 2018 (Meloy, J.),
cert. denied, 139 S. Ct. 817 (2019).
29
220 F.3d 906, 908–09 (8th Cir. 2000). The student notified the medical
school that he had dyslexia and requested accommodations on multiple-
choice exams to allow him to explain answers by essay or through oral
questioning. Id. at 907. The medical school offered different
accommodations—someone reading the questions to the student on
audiotape, a private room, and additional time for the exams; the student
nevertheless failed too many exams to stay enrolled. Id. The district
court granted summary judgment on grounds the school reasonably
accommodated him as a matter of law. Id. at 907–08. The student
appealed, arguing “the medical school had failed to engage in an
interactive process with him to determine what accommodations for his
disability were reasonable.” Id. at 908. The Eighth Circuit affirmed the
summary judgment because “Stern did not provide probative evidence [of
a reasonable accommodation] that would permit a fact finder to rule in
his favor without engaging in speculation.” Id. at 909.
Similarly, in Mershon, the Eighth Circuit affirmed summary
judgment dismissing ADA failure-to-accommodate claims,
notwithstanding a disabled student’s evidence the University failed to
engage in the interactive process, because the sight-impaired,
wheelchair-bound student failed to meet his “initial burden of
demonstrating that reasonable accommodations would render him
qualified for admission into the graduate school.” 442 F.3d at 1078
(noting deference due graduate school’s academic judgment). Slaughter’s
claim fails for the same reason. DMU was entitled to summary judgment
on this record based on Slaughter’s failure to make a facial showing of
any reasonable accommodation that could have enabled her to meet
DMU’s academic requirements. See id.
30
This case stands in sharp contrast to Palmer. In Palmer, a blind
student requested accommodations to meet technical requirements in a
graduate program at a chiropractic school. 850 N.W.2d at 329–30.
Palmer’s technical requirements included the ability to interpret and
make diagnoses based on radiographic images (x-ray films). Id. at 330,
345. The student asked that a “sighted assistant” describe what the
images depicted so that the student could then make interpretive
diagnoses. Id. at 330. Palmer refused, on grounds that the requested
accommodation “would fundamentally alter the institution’s educational
program.” Id. The student filed a complaint with the Davenport Civil
Rights Commission. Id. at 331. The commission conducted a two-day
evidentiary hearing and issued a final order with extensive findings of
fact and conclusions of law that Palmer violated the ICRA and ADA by
refusing the requested accommodation. Id. at 332. The commission
relied on evidence that Palmer previously graduated blind students from
its chiropractic program, that Palmer’s California campus had already
waived similar vision-specific competency requirements without
compromising its accreditation, that many practicing chiropractors
outsource the interpretation of radiographic images, and that Palmer
failed to present evidence state licensing boards would exclude blind
chiropractors. Id. On judicial review, our court affirmed the commission
based on those factual findings. Id. at 344–46.
In Palmer, the school violated the ICRA by denying the student’s
requested accommodation of a sighted assistant to enable him to satisfy
course requirements. Id. at 330, 345. By contrast, Slaughter cannot
identify any accommodation that she requested and DMU refused that
could have enabled her to meet her school’s academic requirements. In
Palmer, we relied on evidence that other blind students were allowed to
31
graduate. Id. at 331. Slaughter, however, does not claim any other
medical students with depression were granted accommodations DMU
denied to her.
Medical schools must prepare their students for a demanding
profession. See Ohio Civil Rights Comm’n v. Case W. Reserve Univ., 666
N.E.2d 1376, 1387 (Ohio 1996) (“[G]raduates must have the knowledge
and skills to function in a broad variety of clinical situations and to
render a wide spectrum of patient care.”). Graduate schools are not
required to lower their academic standards to accommodate a student’s
disability. Palmer, 850 N.W.2d at 337. Appellate courts reviewing
records comparable to Slaughter’s have given due deference to the
faculty’s academic judgment when affirming summary judgments
dismissing a medical student’s failure-to-accommodate disability claim.
See Halpern, 669 F.3d at 463 (collecting cases extending “deference to
schools’ professional judgments regarding students’ qualifications when
addressing disability discrimination claims” and according “great
respect” to medical school’s academic judgment expelling student with
ADHD and anxiety); Zukle, 166 F.3d at 1047–48, 1050–51 (noting “a
majority of circuits have extended judicial deference to an educational
institution’s academic decisions” and concluding medical school was not
required to keep student with learning disability on a decelerated
schedule); Kaltenberger, 162 F.3d at 436 (“Right or wrong, we must defer
to this considered academic judgment” expelling student with ADHD who
remained unable to pass biochemistry after a variety of
accommodations); Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 795–
96 (1st Cir. 1992) (reviewing undisputed facts “in the deferential light
that academic decisionmaking deserves” and determining that no
“reasonable factfinder could conclude that Tufts, having volunteered
32
such an array of remedial measures, was guilty of failing to make a
reasonable accommodation [for dyslexia] merely because it did not also
offer Wynne, unsolicited, an oral rendering of the biochemistry
examination”). We accord the same respect to DMU’s academic
judgment expelling a medical student who failed required courses despite
the ongoing academic assistance and psychotherapy provided to her.
As the Ohio Supreme Court concluded, “considerable judicial
deference must be paid to academic decisions made by the institution
itself unless it is shown that the standards serve no purpose other than
to deny an education to the handicapped.” Case W. Reserve Univ., 666
N.E.2d at 1386. Slaughter made no such showing.
IV. Disposition.
For these reasons, we affirm the district court’s denial of
Slaughter’s motion for evidentiary ruling and affirm the summary
judgment in favor of DMU.
AFFIRMED.
All justices concur except Appel, J., Cady, C.J., and Wiggins, J.,
who dissent.
33
#17–1732, Slaughter v. Des Moines Univ. Coll. of Osteopathic Med.
APPEL, Justice (dissenting).
This case is depressing.
As a society, we are often uncomfortable with the subject of
depression. Victims of depression are often either in deep denial or at
least embarrassed because of perceptions, frequently accurate, about
potential stigmatization. Even loved ones are inclined to ignore it in favor
of explanations that are less stigmatizing. Rather than confront
depression in a direct and forthright manner, employers, peers, and even
loved ones are frequently inclined to ignore the illness even when it
impacts the victim’s behavior. Third parties favor explanations that
allow them to stay within their comfort zone and which may be morally
satisfying. Even with persons who know better, the preferred approach
is to look away under the understandable but flawed notion that “the
less said, the better.”
Fortunately, professionals in the healing arts have been at the
forefront of the effort to alter society’s impression that persons suffering
depression are faking it or are somehow morally responsible for their
condition. Medical professionals acknowledge, and the literature firmly
establishes, that depression can dramatically alter the ability of the
sufferer to perform and engage in tasks both complex and simple.
Absolutely brilliant people can be immobilized. Geniuses from Lincoln to
Darwin appear to have suffered, periodically at least, from debilitating
depression.
Depression is not the exclusive domain of lawyers, dentists, and
geniuses. Depression and depressive symptoms are disturbingly
common among medical students. A recent study published in the
Journal of the American Medical Society (JAMA) concluded, after
34
canvasing almost 200 peer-reviewed studies, that the level of depression
or depressive symptoms among medical students is 27.2%. Lisa S.
Rotenstein et al., Prevalence of Depression, Depressive Symptoms, and
Suicidal Ideation Among Medical Students: A Systematic Review and
Meta-Analysis, 316 J. Am. Med. Ass’n 2214, 2214 (2016). The study
noted that depression among medical students is two to five times
greater than similarly aged people in the general population. Id. at 2229.
The JAMA article did not emerge from the academic ether. In the
past twenty years, a significant body of medical literature has emerged
dealing with various aspects of depression and mental health issues
among medical students. See, e.g., Chantal M.L.R. Brazeau et al.,
Distress Among Matriculating Medical Students Relative to the General
Population, 89 Acad. Med. 1520, 1520 (2014); Liselotte N. Dyrbye et al.,
Medical Student Distress: Causes, Consequences, and Proposed Solutions,
80 Mayo Clin. Proc. 1613, 1613 (2005); Jane L. Givens & Jennifer Tjia,
Distressed Medical Students’ Use of Mental Health Services and Barriers
to Use, 77 Acad. Med. 918, 918 (2002); Rohan Puthran et al., Prevalence
of Depression Amongst Medical Students: A Meta-Analysis, 50 Med. Educ.
Rev. 456, 456 (2016); Anna Rosiek et al., Chronic Stress and Suicidal
Thinking Among Medical Students, 13 Int’l J. Envtl. Res. & Pub. Health
212, 212 (2016).
The prevalence of depression among medical students has
important implications for medical schools. A leading medical scholar
has published an editorial in JAMA, one of the nation’s leading and
widely read medical publications, warning readers across the nation and
in De s M oi nes t h at th e well-being of med ica l students is an
environmental health issue for our medical schools to confront.
35
Stuart J. Slavin, Medical Student Mental Health: Culture, Environment,
and the Need for Change, 316 J. Am. Med. Ass’n 2195, 2195–96 (2016).
The need for medical schools to properly address depression
among their students also has a legal dimension. Clearly, depression
can be a disability covered by state and federal law. State and federal
statutes prohibiting discrimination based on disability are meant to
eliminate actions based upon prejudice and fear of disabilities and to
prohibit responsible decision-makers from failing to make reasonable
accommodations for a person’s disabilities. Taylor v. Phoenixville Sch.
Dist., 184 F.3d 296, 306 (3d Cir. 1999); see also U.S. Airways, Inc. v.
Barnett, 535 U.S. 391, 401, 122 S. Ct. 1516, 1522–23 (2002) (“The
[Americans with Disabilities Act (ADA)] seeks to diminish or to eliminate
the stereotypical thought processes, the thoughtless actions, and the
hostile reactions that far too often bar those with disabilities from
participating fully in the Nation’s life, including the workplace. These
objectives demand unprejudiced thought and reasonable responsive
reaction on the part of employers and fellow workers alike. They will
sometimes require affirmative conduct to promote entry of disabled
people into the work force.” (Citation omitted.)). Thus, properly
addressing known clinical depression of students in medical school
through an interactive process and a search for reasonable
accommodation is not simply a professional expectation. It is a legal
requirement. Yet dealing with depression within the legal frameworks
established by state and federal law is challenging in light of the
pervasive stigma and animus directed toward psychiatric impairments.
See Wendy F. Hensel & Gregory Todd Jones, Bridging the Physical-Mental
Gap: An Empirical Look at the Impact of Mental Illness Stigma on ADA
Outcomes, 73 Tenn. L. Rev. 47, 50–51 (2005); see also Susan Stefan,
36
Delusion of Rights: Americans with Psychiatric Disabilities, Employment
Discrimination and the Americans with Disabilities Act, 52 Ala. L. Rev.
271, 271 (2000) (suggesting that individuals with psychiatric disabilities
encounter difficulties in obtaining protection through the ADA from
employment discrimination).
In this case, the parties concede a medical student at Des Moines
University (DMU) suffered from severe depression. Her academic
performance was below expectations. The question here is whether
DMU, a school dedicated to the healing arts, took appropriate steps when
it learned of her depression to reasonably accommodate her by
adequately engaging in the required interactive process. Based on the
record below, and stripping away our preconceived notions of depression
as a less-than-valid disability, I conclude that DMU is not entitled to
summary judgment on the plaintiff’s failure-to-accommodate claim.
Here are the details.
I. Factual and Procedural Background.
This case involves a challenge to the granting of summary
judgment in a case where the plaintiff alleged a failure to accommodate a
disability under the Iowa Civil Rights Act, Iowa Code chapter 216. The
parties do not distinguish between the Iowa Civil Rights Act and the
Federal Americans with Disabilities Act. Although we have held that we
are free to interpret the Iowa Civil Rights Act differently from its federal
counterpart, see Haskenhoff v. Homeland Energy Sols., LLC, 897 N.W.2d
553, 604–15 (Iowa 2017) (Appel, J., concurring in part and dissenting in
part); Goodpaster v. Schwan’s Home Serv., Inc., 849 N.W.2d 1, 9 (Iowa
2014), the parties do not draw any distinction between the statutes in
this case. The parties simply conflate the two statutes. In light of the
nature of the advocacy, we may regard the substantive standards of the
37
two statutes as identical. Nonetheless, in all cases under the Iowa Civil
Rights Act, we must keep in mind the legislature’s directive that the
statute is to be broadly construed in light of its purposes. 7
II. Discussion.
A. Triggering the Interactive Process. The first question we
must confront is whether Natalie Slaughter’s disclosures to DMU
regarding her depression were sufficient to raise a triable issue on the
question of whether she disclosed enough information to trigger an
interactive process to determine if a reasonable accommodation might be
available to address her disability. Based on the summary judgment
record, I would answer that question in the affirmative.
The interactive process is integral to the developing legal
framework of disability law. As one court explained,
The interactive process is at the heart of the ADA’s process
and essential to accomplishing its goals. It is the primary
vehicle for identifying and achieving effective adjustments
which allow disabled employees to continue working without
placing an “undue burden” on employers. Employees do not
have at their disposal the extensive information concerning
possible alternative positions or possible accommodations
which employers have. Putting the entire burden on the
employee to identify a reasonable accommodation risks
shutting out many workers simply because they do not have
the superior knowledge of the workplace that the employer
has.
Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1113 (9th Cir. 2000) (en banc),
vacated on other grounds by U.S. Airways, 535 U.S. 391, 122 S. Ct.
7Nothing in this case should affect our ability to construe the disability
provisions of the Iowa Civil Rights Act in a fashion different from federal courts applying
federal disability law. Historically, the federal courts have interpreted disability law
narrowly, ultimately triggering congressional intervention. As noted in Goodpaster,
there is no reason we should be bound by the chains of narrow federal precedent. 849
N.W.2d at 9. This is particularly so in light of the explicit legislative directive that the
Iowa Civil Rights Act is to be broadly construed in light its purposes. Haskenhoff, 897
N.W.2d at 607–10 (Appel, J., concurring in part and dissenting in part).
38
1516. In the area of disability law, the courts have consistently
demanded that the parties seek to resolve the possible issues on their
own through an interactive process rather than prematurely resorting to
litigation with the prospect of an unpleasant, win or lose battle in the
courts with post hoc rationalizations and finger pointing regarding who
did what to whom and when.
The interactive process is triggered when the institution is aware of
a disability and knows that the employee or student seeks a reasonable
accommodation. See Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130,
1134 (7th Cir. 1996); see also Brady v. Wal-Mart Stores, Inc., 531 F.3d
127, 135 (2d Cir. 2008) (stating that an employer has a duty to engage in
the interactive process if it knows or should know of the disability).
Magic words are not necessary to trigger the interactive process. See
Barnett, 228 F.3d at 1112; Smith v. Midland Brake, Inc., 180 F.3d 1154,
1172 (10th Cir. 1999); Bultemeyer v. Ft. Wayne Cmty. Schs., 100 F.3d
1281, 1285 (7th Cir. 1996). If the disabled person does not know how to
ask for an accommodation in so many words, the institution should do
what it can to help. Bultemeyer, 100 F.3d at 1284–85. All that is
required is that the institution be aware of enough information to know
that the disabled party has both a disability and desires an
accommodation. See Ballard v. Rubin, 284 F.3d 957, 962 (8th Cir.
2002); Bultemeyer, 100 F.3d at 1284–85. Particularly when addressing a
mental health issue, it is simply not necessary that the disabled person
point to specific accommodations. Bultemeyer, 100 F.3d at 1284–86.
Slaughter’s December 17 email plainly put DMU on notice of
Slaughter’s disability. She eloquently wrote,
I have struggled with depression for a very long time, and at
the beginning of the semester [I] had a horrible relapse of
sorts. My normally well controlled disorder ended up
39
severely affecting my life in ways it hasn’t in many years. I
was barely making it through the day without breaking
down, and all the emotional energy it took for me to save face
at school was so exhausting that by the time I would get
home I had difficulty focusing on my coursework. I was
extremely demoralized because of doing poorly it just ended
up as this vicious cycle. There would be days where I
couldn’t get anything done and then I would get really
behind, then crammed right before the test, do poorly, and
then go right back into depression. I started seeing a
therapist when I was about half of the way through biochem
and as I have been working with her my mood has improved,
making it easier for me to focus on school.
I knew going into medical school that 1st year would be the
most difficult for me. A lot of the material is so foreign to me
and it is requiring me to use different skills than what I am
used to, which we did talk about in the meeting. . . . [M]y
issue is finding the tools that work best for me and getting
my depression under control . . . .
While Slaughter did not explicitly state “I want/need an accommodation”
in the December 17 email, she made DMU aware of her disability and her
need to find tools that work for her to get her depression under control.
It seems to me that the context of the December 17 email—a
response to evolving concerns about Slaughter’s academic performance—
would sufficiently alert a reasonable institution to trigger an interactive
process to explore possible steps to accommodate her. Obviously
Slaughter advised DMU that she suffered from depression of a nature
that affected life functions, and in context, a factfinder could reasonably
interpret the letter as a plea for help. It is unfathomable to me that
medical professionals would think otherwise. 8 As such, DMU cannot get
summary judgment based on a failure to trigger the interactive process.
8In
any case, as the district court recognized, DMU expressly states in its motion
for summary judgment that it does not dispute that Slaughter requested
accommodations.
40
B. DMU’s Engagement in the Interactive Process. The next
question is whether, on the undisputed facts, DMU adequately engaged
in the interactive process. The answer to this question is no.
An interactive process—according to judicial, regulatory, and
secondary authorities—requires a search for an appropriate
accommodation that is specifically linked to the disability at hand. We
have explained that once an institution learns of a disability, it has the
burden to undertake an “individualized and extensive inquiry” into the
disability and to attempt to provide specifically tailored accommodations.
Palmer Coll. of Chiropractic v. Davenport Civil Rights Comm’n, 850 N.W.2d
326, 337 (Iowa 2014). An educational institution “has a ‘real obligation’
to seek out ‘suitable means of reasonably accommodating’ individuals
with disabilities and to submit ‘a factual record indicating’ it
‘conscientiously carried out this statutory obligation.’ ” Id. (quoting
Wynne v. Tufts Univ. Sch. of Med., 932 F.2d 19, 25–26 (1st Cir. 1991)).
Other courts note that in evaluating a breakdown in the interactive
process, they look for signs of failure to participate in good faith or failure
to help determine what specific accommodations are necessary. Taylor,
184 F.3d at 312; Bultemeyer, 100 F.3d at 1285. Another court explains
that
employers must consult and cooperate with disabled
employees so that both parties discover the precise
limitations and the types of accommodations which would be
most effective. The evaluation of proposed accommodations
requires further dialogue and an assessment of the
effectiveness of each accommodation, in terms of enabling
the employee to successfully perform the job.
Barnett, 228 F.3d at 1115.
The Equal Employment Opportunity Commission affirms the need
for an interactive process tailored to an individual’s disability. The
41
interactive process “should identify the precise limitations resulting from
the disability and potential reasonable accommodations that could
overcome those limitations.” 29 C.F.R. § 1630.2(o)(3) (2014). The
commission advocates a four-step method for an employer to engage in
the interactive process and emphasizes at each step the necessity of
considering individualized circumstances:
(1) Analyze the particular job involved and determine
its purpose and essential functions;
(2) Consult with the individual with a disability to
ascertain the precise job-related limitations imposed by the
individual’s disability and how those limitations could be
overcome with a reasonable accommodation;
(3) In consultation with the individual to be
accommodated, identify potential accommodations and
assess the effectiveness each would have in enabling the
individual to perform the essential functions of the position;
and
(4) Consider the preference of the individual to be
accommodated and select and implement the
accommodation that is most appropriate for both the
employee and the employer.
29 C.F.R. pt. 1630 app.
Secondary sources concur in the importance of considering
individualized circumstances. One treatise explains that “[t]he process of
identifying an appropriate reasonable accommodation requires an
individual assessment of the particular job and the specific mental or
physical limitations of the individual needing a reasonable
accommodation.” 2 Merrick T. Rossein, Employment Discrimination Law
and Litigation § 23:45, Westlaw (database updated Dec. 2018). Other
authors emphasize that the individualized response required of
employers and other institutions distinguishes the interactive process
from the requirements of other civil rights statutes. See PollyBeth
42
Proctor, Determining “Reasonable Accommodation” Under the ADA:
Understanding Employer and Employee Rights and Obligations During the
Interactive Process, 33 Sw. U. L. Rev. 51, 56 (2003) [hereinafter Proctor];
Craig A. Sullivan, The ADA’s Interactive Process, 57 J. Mo. B. 116, 116
(2001). “[T]he employee and employer are required to come together at
the bargaining table and ask probing questions to better understand the
employee’s disability and resultant limitations.” Proctor, 33 Sw. U. L.
Rev. at 54. That particularized inquiry “targets Congress’ explicit
concern in the ADA: discrimination motivated in large part by ignorance
and unfounded bias on the employer’s part.” Id. at 55.
As a result of the need for an individualized interactive process, an
offer of “standard” accommodations—without regard to the specific
disability at issue—is not a reasonable accommodation. Allen v. Interior
Constr. Servs., Ltd., 214 F.3d 978, 982 (8th Cir. 2000) (“[A]n
accommodation is reasonable only if it is related to the accommodated
individual’s disability.”); Redding v. Nova Se. Univ., Inc., 165 F. Supp. 3d
1274, 1297 (S.D. Fla. 2016); see Barnett, 228 F.3d at 1116–17
(explaining that one of the employer’s offered accommodations was
insufficient because “[t]hat a tool performs a similar function doesn’t
make it a proper tool for a particular job” and another offered
accommodation was merely a recitation of “a right [the employee] already
had”). Likewise, determining the accommodations one is willing to offer
before engaging in the interactive process does not satisfy the
requirements of the interactive process and cannot constitute reasonable
accommodations. Mosby-Meachem v. Memphis Light, Gas & Water Div.,
883 F.3d 595, 606 (6th Cir. 2018); Bartee v. Michelin N. Am., Inc., 374
F.3d 906, 916 (10th Cir. 2004). An employer who simply offers
generalized accommodations available to disabled and nondisabled
43
persons alike is not engaging in the interactive process. Palmer, 850
N.W.2d at 337–38.
The requirement that the interactive process focus on the
particular disability is critical, particularly in cases involving mental
health. It is true, of course, that Slaughter was not excelling
academically, but the question is whether her difficulties in performance
were a result of her disability, and thus might be subject to reasonable
accommodation, or if the admission committee at DMU made a mistake
and she lacked the ability to successfully complete the academic program
at DMU.
The record here makes it clear that DMU offered Slaughter the
kind of assistance available to all students having academic difficulty,
but there is substantial evidence that DMU never specifically considered
the precise nature of Slaughter’s disability and how specific
accommodations might be developed to address it. Instead, upon
learning of the disability, DMU simply ignored it and stayed the course,
proceeding as it would have proceeded with any nondisabled student. As
a result, I conclude that Slaughter presented a triable issue on the
question of whether DMU engaged in the interactive process required in
a case involving a disability.
It is important to emphasize that it is not necessary that the
disabled individual propose specific accommodations during the
interactive process. The majority repeatedly observes that Slaughter did
not request a specific accommodation refused by DMU that could have
allowed Slaughter to continue her studies. But whether Slaughter
requested a specific accommodation during the interactive process is
44
immaterial. 9 As stated in Taylor: “[A]n employer who has received proper
notice cannot escape its duty to engage in the interactive process simply
because the employee did not come forward with a reasonable
accommodation that would prevail in litigation.” 184 F.3d at 317.
Slaughter need not have identified ex ante the reasonable
accommodation that the interactive process could produce. The Taylor
court put an even finer point on it: “[I]t would make little sense to insist
that the employee must have arrived at the end product of the interactive
process before the employer has a duty to participate in that process.”
Id. at 316. The United States Court of Appeals for the Ninth Circuit
expounds on that point:
Without the interactive process, many employees will be
unable to identify effective reasonable accommodations.
Without the possibility of liability for failure to engage in the
interactive process, employers would have less incentive to
engage in a cooperative dialogue and to explore fully the
existence and feasibility of reasonable accommodations. The
result would be less accommodation and more litigation, as
lawsuits become the only alternative for disabled employees
seeking accommodation. This is a long way from the
framework of cooperative problem solving based on open and
individualized exchange in the workplace that the ADA
intended. Therefore, summary judgment is available only
where there is no genuine dispute that the employer has
engaged in the interactive process in good faith.
Barnett, 228 F.3d at 1116.
C. Consequence of Failure to Engage in the Interactive
Process in Context of Defendant’s Motion for Summary Judgment to
Extinguish Claim. The final question we must confront is the
9As further discussed below, some courts require a plaintiff—during litigation—
to identify a possible accommodation to avoid summary judgment. See, e.g., McMillan
v. City of New York, 711 F.3d 120, 127–28 (2d Cir. 2013). Whatever the merits of that
requirement, it is significantly different from requiring a disabled person to request—
during the interactive process—a specific accommodation refused by the institution that
could have allowed the person to continue working or studying.
45
ramification of DMU’s failure to engage in the interactive process for
purposes of summary judgment. I discuss three possible approaches.
One approach holds that an institution’s motion for summary judgment
must be denied when the institution does not present undisputed facts
showing that it adequately engaged in the interactive process. A second
approach would deny summary judgment to an institution unless it
presents undisputed facts demonstrating that engagement in an
interactive process could not have produced a possible accommodation.
The third approach is a burden-shifting approach. In response to
a motion for summary judgment by an institution, a plaintiff must
identify a facially plausible accommodation that could have resulted from
the interactive process. At that point, summary judgment is denied
unless the institution presents undisputed facts that the student could
not perform even with the facially plausible accommodation or that
accommodating the student would pose an undue hardship.
Under any approach, our determination must rest on the Iowa
summary judgment standard. I conclude that the present record
precludes granting summary judgment in favor of DMU under any of
these theories.
1. Iowa summary judgment standard. On review of a summary
judgment grant, “[w]e examine the record to determine whether a
material fact is in dispute.” Schneider v. State, 789 N.W.2d 138, 143
(Iowa 2010); Ranes v. Adams Labs., Inc., 778 N.W.2d 677, 685 (Iowa
2010); accord Minor v. State, 819 N.W.2d 383, 393 (Iowa 2012); Gen. Car
& Truck Leasing Sys., Inc. v. Lane & Waterman, 557 N.W.2d 274, 276
(Iowa 1996). Iowa courts must “view the entire record in the light most
favorable to the nonmoving party.” Bass v. J.C. Penney Co., 880 N.W.2d
751, 755 (Iowa 2016); accord Veatch v. City of Waverly, 858 N.W.2d 1, 6
46
(Iowa 2015); Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 565 (Iowa
2000). And the court must “consider on behalf of the nonmoving party
every legitimate inference reasonably deduced from the record.”
Bagelmann v. First Nat’l Bank, 823 N.W.2d 18, 20 (Iowa 2012) (quoting
Van Fossen v. MidAmerican Energy Co., 777 N.W.2d 689, 692 (Iowa
2009)); accord Estate of Harris v. Papa John’s Pizza, 679 N.W.2d 673,
677 (Iowa 2004) (quoting Phillips v. Covenant Clinic, 625 N.W.2d 714,
717–18 (Iowa 2001)). “We . . . indulge in every legitimate inference that
the evidence will bear in an effort to ascertain the existence of a fact
question.” Crippen, 618 N.W.2d at 565.
Summary judgment is appropriate
if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of
law.
Iowa R. Civ. P. 1.981(3); Banwart v. 50th Street Sports, L.L.C., 910
N.W.2d 540, 544 (Iowa 2018). “Even if the facts are undisputed,
summary judgment is not proper if reasonable minds could draw
different inferences from them and thereby reach different conclusions.”
Banwart, 910 N.W.2d at 544–45 (quoting Clinkscales v. Nelson Sec., Inc.,
697 N.W.2d 836, 841 (Iowa 2005)).
In Iowa, unlike the federal courts, 10 the burden of showing
undisputed facts entitling the moving party to summary judgment rests
10Under federal law, when the nonmoving party bears the burden of proof at trial
on a dispositive issue, the summary judgment movant’s burden of production “may be
discharged by ‘showing’—that is, pointing out to the district court—that there is an
absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett,
477 U.S. 317, 325, 106 S. Ct. 2548, 2554 (1986). Such a motion is considered properly
made under federal law whether or not accompanied by affidavits, and will thus require
the nonmoving party to “go beyond the pleadings and by her own affidavits, or by the
‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts
47
with the moving party. Swainston v. Am. Family Mut. Ins., 774 N.W.2d
478, 481 (Iowa 2009). The burden of proof remains with the moving
party at all times. See Interstate Power Co. v. Ins. Co. of N. Am., 603
N.W.2d 751, 756 (Iowa 1999). A moving party cannot shift the burden to
the other party through a conclusory motion for summary judgment not
supported by undisputed facts. See id.; Midwest Mgmt. Corp. v.
Stephens, 291 N.W.2d 896, 900 (Iowa 1980); Am. Tel. & Tel. Co. v.
Dubuque Commc’ns Corp., 231 N.W.2d 12, 14–15 (Iowa 1975). Our
caselaw on this question is clear:
To obtain a grant of summary judgment on some issue in an
action, the moving party must affirmatively establish the
existence of undisputed facts entitling that party to a
particular result under controlling law. . . .
. . . When the evidentiary matter tendered in support
of the motion does not affirmatively establish uncontroverted
facts that sustain the moving party’s right to judgment,
summary judgment must be denied even if no opposing
evidentiary matter is presented.
Griglione v. Martin, 525 N.W.2d 810, 813 (Iowa 1994), overruled on other
grounds by Winger v. CM Holdings, L.L.C., 881 N.W.2d 443, 446 (Iowa
2016). Where a motion for summary judgment is not adequately
supported, “we need not consider the sufficiency of plaintiff’s resistance
to the motion.” Id. In this way, we do not follow the federal Celotex
standard for summary judgment. 11 Id.
_______________________
showing that there is a genuine issue for trial.’ ” Id. at 324, 106 S. Ct. at 2553 (citation
omitted).
11Iowa is not the only state to reject the federal Celotex approach to summary
judgment. See, e.g., Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d
118, 123 (Ind. 1995); Minnie v. City of Roundup, 849 P.2d 212, 214 (Mont. 1993); see
also Zachary D. Clopton, Procedural Retrenchment and the States, 106 Calif. L. Rev.
411, 429–31 (2018) (citing fourteen states that reject Celotex in whole or in part). The
impact of Celotex is notable on cases brought under civil rights statutes. See Ann C.
McGinley, Credulous Courts and the Tortured Trilogy: The Improper Use of Summary
Judgment in Title VII and ADEA Cases, 34 B.C. L. Rev. 203, 206 (1993) (explaining that
Celotex has eroded the factfinder’s role in discrimination cases and substantially
48
2. Denial of summary judgment for failure to engage in the
interactive process. Several courts have denied summary judgement to
an employer or institution where the record showed a triable question on
whether that party failed to adequately engage in an interactive process.
Barnett, 228 F.3d at 1116 (collecting cases); Taylor, 184 F.3d at 318.
This approach has the effect of requiring an employer or institution to
engage in an interactive process as a prerequisite to summary judgment.
The reluctance to grant summary judgment in a reasonable
accommodation case where there is a triable issue on whether there was
an adequate interactive process is particularly strong in cases involving
disabilities that are heavily stigmatized in our society. Taylor, 184 F.3d
at 318. In settings involving mental health, courts should be especially
wary on summary judgment of underestimating how well a disabled
person may perform with accommodations or how much the bad faith
arising from the failure to engage in the interactive process may have
hindered the process of finding an accommodation. Id.
Slaughter avoids summary judgment under the Barnett/Taylor
approach if DMU has not shown undisputed facts that it engaged in an
interactive process. Griglione, 525 N.W.2d at 813. Because DMU failed
_______________________
undermined the efficacy of antidiscrimination laws). For critical criticism of Celotex
generally, see Samuel Issacharoff & George Loewenstein, Second Thoughts About
Summary Judgment, 100 Yale L.J. 73, 75 (1990) (noting that the United States Supreme
Court’s approach to summary judgment results in a wealth transfer from plaintiffs as a
class to defendants as a class); Arthur R. Miller, The Pretrial Rush to Judgment: Are the
“Litigation Explosion,” “Liability Crisis,” and Efficiency Clichés Eroding Our Day in Court
and Jury Trial Commitments?, 78 N.Y.U. L. Rev 982, 1044–48 (2003) (questioning
Celotex in light of “negative effects on other system values, such as accuracy, fairness,
the day-in-court principle, and the jury trial right”); and Martin H. Redish, Summary
Judgment and the Vanishing Trial: Implications of the Litigation Matrix, 57 Stan. L. Rev.
1329, 1330 (2005) (suggesting a causal connection between changes in the law of
summary judgment and the dramatic decline in federal trials).
49
to engage in the interactive process, DMU is not entitled to summary
judgment under Barnett, 228 F.3d at 1116, and Taylor, 184 F.3d at 318.
3. Denial of summary judgment for failure to show that an
interactive process would not have identified a reasonable accommodation.
A more defendant-friendly standard would allow a defendant that failed
to engage in the interactive process to obtain summary judgment if it can
present undisputed facts demonstrating that the interactive process
would not have produced a reasonable accommodation. Under this
approach, the question under the Iowa summary judgment standard is
this: Did DMU, as the summary judgment movant, offer undisputed facts
demonstrating there was no possible accommodation to allow this
apparently bright (she was admitted to medical school) but disabled
student to satisfactorily continue her studies?
In its materials in support of its motion for summary judgment,
DMU does not present this material fact as not subject to genuine
dispute. Nor does DMU present any evidence that the interactive process
would have been futile. For that reason, DMU’s summary judgment
motion must fail. See Griglione, 525 N.W.2d at 813.
Indeed, the record shows that DMU cannot assert that no
reasonable accommodation could have come from an interactive process.
According to undisputed facts in the record, engagement in the
interactive process would have entirely “changed the nature of the
conversation” and could have produced at least two potential
accommodations.
To begin with, it is undisputed that had Dr. Canby known of
Slaughter’s disability, the whole affair would have taken a different
course. Further, Dr. Canby suggested that, among other things, a
50
medical leave would have been considered. The record reveals the
following questions and answers:
Q. So Natalie’s [Slaughter’s] depression was never
discussed between you and her when you met to do the
action plan because you did not know it. A. That’s correct.
It would have changed the nature of the conversation.
Q. It would have changed the nature entirely, would it
not? A. It would have.
Q. You would have advised her to go to seek
accommodation, would you not? A. I would have discussed the
medical leave of absence as well.
Notably, Dr. Canby did not testify that knowledge of Slaughter’s
depression did not matter (the position taken by DMU in this litigation),
and did not testify that there would have been no solutions had he
known about the depression. Instead, he came up with at least one
possible accommodation, medical leave, and admitted that the
discussions would have taken an entirely different course had he known
of the depression. This candid testimony undermines DMU’s current
white-knuckled position that there was simply nothing that could be
done to accommodate the plaintiff’s disability.
What would the entirely different conversation look like? We don’t
know for sure, but the inference is that Dr. Canby, at least, considered it
at least possible that there would be accommodations available for
Slaughter to see her through her depression. On summary judgment, we
consider on behalf of the nonmoving party every legitimate inference that
can be reasonably deduced from the record. Crippen, 618 N.W.2d at
565; see also Smith v. Shagnasty’s Inc., 688 N.W.2d 67, 71 (Iowa 2004)
(“An inference is legitimate if it is ‘rational, reasonable, and otherwise
permissible under the governing substantive law.’ ” (quoting McIlravy v.
N. River Ins., 653 N.W.2d 323, 328 (Iowa 2002))). Dr. Canby did not say
51
that the depression made no difference and that he would have acted the
same in any event. Indeed, Dr. Canby stated that had he known about
the depression, he would have discussed a medical leave of absence “as
well” as other possibilities. Other courts have noted that finite leaves of
absence can be a reasonable accommodation. See, e.g., Humphrey v.
Mem’l Hosps. Ass’n, 239 F.3d 1128, 1136 (9th Cir. 2001); García-Ayala v.
Lederle Parenterals, Inc., 212 F.3d 638, 649–50 (1st Cir. 2000); Cehrs v.
Nw. Ohio Alzheimer’s Research Ctr., 155 F.3d 775, 781–83 (6th Cir.
1998); Haschmann v. Time Warner Entm’t Co., 151 F.3d 591, 601 (7th
Cir. 1998); see also 29 C.F.R. pt. 1630 app. (providing that a reasonable
accommodation could include “unpaid leave for necessary treatment”).
At least one court has vacated a grant of summary judgment upon
determining that a leave of absence from medical school can be a
reasonable accommodation for a student suffering from depression.
Dean, 804 F.3d at 190–91. Further, the record does not present
undisputed facts to show (1) that Slaughter would not have accepted the
medical leave or (2) that she would not have been successful with the
medical leave.
In addition, there is reason to believe that something could, in fact,
be done short of dismissal or even short of a medical leave. In terms of
her academic performance, the record shows that at the time of her
dismissal from DMU, her grade point was 2.19. This reflected her
remediated grade in biochemistry. Further, if she had been allowed to
remediate her physiology class and raised her grade to a C as she did in
biochemistry, her grade point would have exceeded 2.4. There is no
evidence in the record that DMU routinely discharged students receiving
Bs and Cs in the academic program or considered persons with Bs and
Cs unqualified to continue their studies. Plainly, this is not the kind of
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evidence that supports a claim that it is undisputed that the interactive
process would have ultimately failed.
The majority observes that Slaughter did not request an academic
withdrawal or medical leave while a student at DMU. That may be true,
but it is immaterial to the question before us. So too would a failure to
request remediation of physiology be immaterial. As noted above,
Slaughter had no duty to make the requests as part of the interactive
process. And in this litigation, it is DMU’s burden to offer undisputed
facts showing that there was no possible accommodation to allow
Slaughter to satisfactorily continue her studies. DMU cannot meet that
burden, because Dr. Canby admits that medical leave is a possible
accommodation and the record shows that remediation already worked
for Slaughter once.
4. Denial of summary judgment under burden-shifting approach.
Finally, it is worth emphasizing that Slaughter would survive summary
judgment even under a similar—but distinguishable—approach taken by
some federal courts. A series of federal decisions impose a burden on the
employee or student to suggest—during litigation—a possible reasonable
accommodation for the disability. U.S. Airways, 535 U.S. at 401–02, 122
S. Ct. at 1523 (noting that “[m]any of the lower courts” hold that, to
defeat summary judgment, a plaintiff “need only show that an
‘accommodation’ seems reasonable on its face, i.e., ordinarily or in the
run of cases”); McMillan v. City of New York, 711 F.3d 120, 127–28 (2d
Cir. 2013) (stating that, to avoid summary judgment, a plaintiff must
suggest the existence of a plausible accommodation, the costs of which,
facially, do not clearly exceed its benefits); Fenney v. Dakota, Minn. & E.
R.R., 327 F.3d 707, 712 (8th Cir. 2003) (“[H]e must only make a ‘facial
showing that a reasonable accommodation is possible.’ ” (quoting Benson
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v. Nw. Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir. 1995)). If the employee
or student makes such a showing, the burden shifts to the employer or
institution to show that the employee or student could not perform even
with the reasonable accommodation or that accommodating the
employee or student would pose an undue hardship. U.S. Airways, 535
U.S. at 402, 122 S. Ct. at 1523; Dean v. Univ. at Buffalo Sch. of Med. &
Biomed. Scis., 804 F.3d 178, 190 (2d Cir. 2015); Fenney, 327 F.3d at
712. I would not adopt the burden-shifting approach, but would leave
the burden squarely with the moving party.
Yet here, the record shows that “the nature of the conversation”
would have “changed . . . entirely” had DMU engaged in the interactive
process. The record further reflects at least two possible
accommodations that could have arisen from that process, medical leave
and remediation. On review of a summary judgment grant, “[w]e
examine the record to determine whether a material fact is in dispute,”
Schneider, 789 N.W.2d at 143 (emphasis added); Ranes, 778 N.W.2d at
685; see Minor, 819 N.W.2d at 393, and “consider on behalf of the
nonmoving party every legitimate inference reasonably deduced from the
record,” Bagelmann, 823 N.W.2d at 20 (emphasis added). The burden
would then shift to DMU to show that either Slaughter could not perform
even with the accommodations or accommodation would pose an undue
hardship, U.S. Airways, 535 U.S. at 402, 122 S. Ct. at 1523; Dean, 804
F.3d at 190; Fenney, 327 F.3d at 712, and it has offered no such
evidence. Consequently, Slaughter avoids summary judgment under
that federal approach. The majority is mistaken in concluding otherwise.
III. Conclusion.
It must be remembered that this case involves a motion for
summary judgment. As I have stated, the moving party has the burden
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of presenting undisputed facts that entitle the party to relief as a matter
of law. Swainston, 774 N.W.2d at 481; Interstate Power Co., 603 N.W.2d
at 756. There was no interactive process, thereby giving rise to a
presumption of bad faith. Cravens v. Blue Cross & Blue Shield of Kansas
City, 214 F.3d 1011, 1021 (8th Cir. 2000).
Could there have been a reasonable accommodation for Slaughter
that would have allowed her to continue her studies if DMU had engaged
in the interactive process? The record suggests maybe. On the record
before us, we simply do not know whether Slaughter was a brilliant and
able student disabled by her depression but capable of meeting
standards through appropriate accommodation or whether there was
simply no way for her to satisfactorily complete her medical studies
regardless of reasonable accommodations that might be offered. As a
result, the undisputed facts do not entitle DMU to summary judgment. I
would reverse the district court’s grant of summary judgment in this
case. Of course, I express no views on the ultimate outcome of this
litigation, but only that DMU has not met the demanding standards for
summary judgment in this case.
Cady, C.J., and Wiggins, J., join this dissent.