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Thomas v. Hamline University: US District Court : EDUCATION | AMERICANS with DISABILITIES ACT | MHRA - school's concerns about negativity, not disability; summary judgment for defendant

1 Since the commencement of this suit, McLane has changed her name to Kathy
Thomsen. The Court will refer to her as McLane to remain consistent with the caption.
2 The Complaint asserted an additional privacy right claim for intrusion upon plaintiffs
seclusion. Counsel voluntarily dismissed this claim at oral argument.
Jenelle Thomas,
v. Civil No. 07-3323 ADM/JSM
Hamline University and Kathy McLane,
Mark A. Greenman, Esq., Law Office of Mark A. Greenman, Minneapolis, MN, appeared for
and on behalf of the Plaintiff.
Edward M. Laine, Esq., and Meghan M. Anzelc, Esq., Oppenheimer Wolff & Donnelly LLP,
Minneapolis, MN, appeared for and on behalf of the Defendants.
On September 30, 2008, the undersigned United States District Judge heard oral
argument on Defendants Hamline University (Hamline) and Kathy McLanes1 (Dr.
McLane), Motion for Summary Judgment [Docket No. 11]. In her Complaint [Docket No. 1],
Plaintiff Jenelle Thomas (Thomas) alleges that Hamline discriminated against her in violation
of the Americans with Disabilities Act (ADA), 42 U.S.C. 12101-12213 and the Minnesota
Human Rights Act (MHRA), Minn. Stat. 363A.01-41; and that Dr. McLane aided and
abetted in the alleged discrimination.2 For the reasons set forth below, the Defendants Motion
3 On a motion for summary judgment, the Court views the evidence in the light most
favorable to the nonmoving party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995).
for Summary Judgment is granted.
Hamline is a private university in St. Paul, Minnesota. Compl. 2. Dr. McLane, an
associate professor in Hamlines Music Department for nineteen years, served as Thomas
academic advisor. Id. at 3. Anzelc Decl. [Docket No. 16] Ex. A, (McLane Depo.) at 5.
Thomas has experienced depression since she was eleven years old. Anzelc Decl. Ex. E,
(Thomas Depo.) at 9. Her symptoms include a lack of energy, a sense of hopelessness, lack of
motivation, insomnia, oversleeping, and lack of appetite. Id. at 10. At times her depression has
caused her to want to hurt herself, and she has contemplated suicide. Id.
Thomas transferred to Hamline in the fall of 2004 to pursue majors in both music and
education as part of the music education licensure program. Id. at 18. In her Educational
Psychology class that term, Thomas began to experience problems. Anzelc Decl. Ex. C, (Strait
Depo.) at 15. She missed classes, neglected to turn in assignments, and rarely interacted with
peers or participated in class. Id. at 15-16. When Thomas informed her professor that she
suffered from depression, she was allowed extra time to complete assignments. Id. at 4. When
Thomas still could not finish the required work, she asked for, and was granted, a medical
withdrawal so that she could retake the class without negative repercussions. Id. at 4-5.
Thomas also had problems in other classes. The professor in her Education and Cultural
Diversity course stated that she did not complete projects and was not prepared to present to the
class. Anzelc Decl. Ex. B, (Redman Depo.) at 14. He also found her to be negative,
unresponsive, reluctant, and almost mildly defiant. Id. at 21. She failed the class even after
deadlines were extended for her. Thomas Depo. at 26-27. Also, a third professor expressed
concern to Dr. McLane, as Thomas education advisor, that Thomas had problems with the
performance aspect of her vocal class. McLane Depo. at 39-40. Dr. McLane informally advised
Thomas about addressing some of these concerns. Thomas admitted she had trouble interacting
with people, but Thomas performance did not improve. Id. at 49.
Following the informal counseling session, Dr. McLane sent the following email to Dr.
Watson, the Chair of the Education Department:
I have serious concerns about Jenelle Thomas pursuing music
licensure. I wont speak for Janet, but I know she shares my concerns
as we have had several conversations about it. Unfortunately we
have no academic/content grounds for preventing Jenelle from
moving forward. She is quite able to handle the material, quite able
to wave her arms as a conductor, she can hear, shes a good pianist
and singer, etc. But shes one of the most negative people Ive ever
encountered. I believe there are serious personal issues that are being
covered up, and I find her utterly unsuitable to deal with people in a
school setting. Putting our stamp of approval on her as a Hamline
grad would be a terrible reflection on our program; it would do her no
favors, nor would it be good for potential employers and students.
Ive talked with Jenelle several times about her suitability for the
field and have gotten nowhere. She wants the license, shes doing
whatever she needs to do to get it, and nothing I have advised has
been taken in by her. Shes a Mack truck driving down this road. . .
. The only institutional barrier I can foresee putting in her path is to
fail her from student teaching. That would (I suspect) get very ugly.
Greenman Decl. [Docket No. 21] Ex. D. In accord with Hamline procedure, Dr. Watson
scheduled a case conference with Thomas. Watson Decl. [Docket No. 14] 2. An initial case
conference brings together the student, the students advisor, and any faculty members who have
concerns about the student to provide feedback, elicit student input, and design any appropriate
interventions. Id. at 3. On April 3, 2006, an initial case conference was held with Thomas, Dr.
McLane, and another of Thomas advisors, Dr. Redman. Id. at 4. The notes from that
conference reflect that the faculty members addressed Thomas areas of strengths and
weaknesses. Id. Ex. B. When Thomas asked for specific areas of concern, she was told those
concerns included interaction with people, ability and willingness to teach music as an
expressive art, providing reinforcement and encouragement to students, meeting deadlines, and
attendance. Id. (emphasis in original). Thomas acknowledged these concerns but claimed she
is a different person while teaching. Id. To address these concerns and allow Thomas to
support her contention, the faculty members instructed her to schedule and teach a lesson that
they could observe. Id. Thomas was told she would only need to demonstrate she had the
proficiency necessary for student teaching. Id. At the initial case conference, Thomas explained
that she suffers from depression, but this fact was omitted from the conference report to protect
Thomas privacy. Thomas Depo. at 42.
Thomas felt the observation plan was unfair and discriminatory and that she was being
set up to fail. Thomas Decl. [Docket No. 20] 7. On April 4, 2006, she visited Hamlines
Disability Services Center to inquire about whether she was the subject of discrimination. Id.
Based on Thomas recounting of the case conference, a Disability Services Center student
worker sent an email to a disability advocates list serve asking if it was discriminatory for
Thomas to have to teach this class due to her depression and social anxiety. Greenman Decl.
Ex. K. Some of the responses to the email indicated that they believed it was discriminatory, and
Thomas decided not to set up a teaching observation. Thomas Decl. 7.
At the end of her 2006 spring semester, Thomas was placed on academic probation for
4 Thomas originally included a failure to accommodate theory in her Complaint. She
made clear in her Memorandum in Opposition to Defendants Motion for Summary Judgment,
however, that she is proceeding under only a disparate treatment theory, and the Court will
therefore not recount the efforts of the parties to agree on accommodations. Mem. in Oppn to
Defs. Mot. for Summ. J. [Docket No. 18] at 17.
failing two music classes. Thomas Depo. at 48, 50-51. Because Thomas had not performed the
observation intervention and the courses she failed were central to the music education
curriculum, Hamline decided that Thomas should not pursue licensure. McLane Depo. at 112;
Watson Decl. 8. Watson informed Thomas of this decision in a letter dated July 25, 2006. Id.
Thomas requested a second case conference, which was held on September 1, 2006 with
Thomas, Dr. McLane, and Watson. Id. 9. At that meeting, Thomas raised the issue of her
depression, and the parties discussed the process of obtaining accommodations.4 Id. 10.
Despite being told she was unable to pursue licensure, Thomas course selection indicated that
she intended to do so. Id. 13. She also contacted a teacher in the St. Paul school system who
agreed to supervise her should Hamline allow her to proceed to student teaching. Greenman
Decl. Ex. S. Watson, Dr. McLane, and other faculty members met on February 2, 2007 when
they determined that because Thomas had not fulfilled the observation requirement and did not
have an acceptable grade point average in her education courses, she would not be allowed to
pursue her music education licensure. Watson Decl. 13. Hamline informed Thomas of this
decision on February 7, 2007. Id.
Thomas commenced this suit in July 2007. In September 2007, Dean Fernando Delgado
informed Thomas that Hamline was willing to waive the observation requirement and allow her
to pursue licensure assuming she completed the other requirements. Thomas Depo. at 80-81.
Dr. McLane raised her concerns with the Dean but was told its not our job at this point to tell
someone that they cant go ahead and approach the finish line even though our professional
judgment tells them they may not meet all of the requirements. We have made our
recommendations, and if she wants to proceed, heres what needs to happen. McLane Depo. at
99. Thomas declined Hamlines offer, decided not to pursue licensure, and stopped taking
classes at Hamline. Thomas Depo. at 83.
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall issue 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 judgment as a matter of law. Fed. R. Civ. P. 56(c); see Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion
for summary judgment, the Court views the evidence in the light most favorable to the
nonmoving party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995). The nonmoving party
may not rest on mere allegations or denials, but must demonstrate on the record the existence of
specific facts which create a genuine issue for trial. Krenik v. County of Le Sueur, 47 F.3d 953,
957 (8th Cir. 1995).
A. Disparate Treatment under ADA and MHRA
Title III of the ADA prohibits disability discrimination in the full and equal enjoyment
of the goods, services, facilities, privileges, advantages, or accommodations of any place of
public accommodation by any person who owns, leases (or leases to), or operates a place of
public accommodation. 42. U.S.C. 12182(a). The MHRA prohibits discrimination in any
5 Thomas cites a Fourth Circuit case, Baird v. Rose, 192 F.3d 462 (4th Cir. 1999),
arguing that a different analytical standard for the claim applies because Thomas does not seek
reasonable accommodations. Pl. Mem. in Oppn to Mot. for Summ. J., at 18. While Amir did
involve an accommodation claim, Amir also alleged disparate treatment, and the court analyzed
that claim under Title III of the ADA separately from the accommodation claim using this
framework. Additionally, Baird involved analysis under Title II of the ADA making its
application here inapposite.
manner in the full utilization of or benefit from any educational institution, or the services
rendered thereby, to any person because of . . . disability. Minn. Stat. 363A.13, subd. 1. It is
also discriminatory to exclude, expel, or otherwise discriminate against a person seeking
admission as a student, or a person enrolled as a student because of . . . disability. Id., subd. 2.
For purposes of analysis, courts treat MHRA claims coextensively with ADA claims. See
Kolton v. County of Anoka, 645 N.W.2d 403, 407 (Minn. 2002); Heaser v. Toro Co., 247 F.3d.
826, 830 n.2 (8th Cir. 2001); Wilking v. County of Ramsey, 153 F.3d. 869, 872 (8th Cir. 1998).
A person alleging discrimination under Title III must show:
(1) that [she] is disabled within the meaning of the ADA, (2) that the
defendant is a private entity that owns, leases, or operates a place of
public accommodations, (3) that the defendant took adverse action
against the plaintiff that was based on the plaintiffs disability, and
(4) that the defendant failed to make reasonable modifications that
would accommodate the plaintiffs disability without fundamentally
altering the nature of the public accommodation.
Amir v. St. Louis Univ., 184 F.3d 1017, 1027 (8th Cir. 1999).5 For the purposes of this motion,
Hamline does not dispute that Thomas is disabled within the meaning of the ADA and MHRA,
nor does it dispute that it is a private entity that owns, leases, or operates a place of public
accommodation. Defs. Mem. in Supp. of Summ. J. [Docket No. 13], at n.4, 5. Rather, Hamline
argues that Thomas claim fails on the third element because there is no proof that it engaged in
disparate treatment based on Thomas disability by requiring her to agree to a teaching
observation as a precondition to continuing to pursue licensure.
Thomas argues that no other student in the history of the music licensure program was
required to submit to a teaching observation prior to beginning the student teaching portion of
the program, and therefore, such a requirement demonstrates disparate treatment. While
Hamline has not required a pre-student teaching observation of a candidate in the music
licensure program, it has required observations in other teaching licensure programs. Hamline
required that a physical education student engage in a summer, student teaching observation
intervention prior to being allowed to student teach on his own. Watson Decl. 6. In another
situation where there was a concern a student could not project the appropriate classroom
authority, the faculty developed an intervention for a faculty member to supervise and observe
the student prior to student teaching. Id. Interventions have also been designed for music
education students when the faculty was concerned about some aspect of their readiness to teach.
A student was required to perform an additional recital prior to student teaching to address
faculty concerns about his ability to follow licensure requirements. Strait Depo. at 21. Finally,
the significance of the fact that Hamline has not imposed an observation requirement on any
other music education licensure student is diluted by learning the history of the music licensure
program consists of six other students. McLane Depo. at 10.
Additionally, Thomas has not presented evidence from which a reasonable trier of fact
could conclude that her disability was the motivating factor behind Hamlines decision to require
an observation. Amir, 184 F.3d at 1028. Thomas argues that Dr. McLanes email which
mentions placing the institutional barrier of failing student teaching in Thomas path
demonstrates that her disability motivated the observation requirement. Greenman Decl. Ex. D.
In that email, Dr. McLane does describe Thomas as one of the most negative people Ive ever
encountered and utterly unsuitable to deal with people in a school setting. But these
comments do not support that Hamlines decision to require an observation was made because of
her disability. Id. Rather, Dr. McLane expressed her informed, professional judgment based on
her experience as an educator and as a person responsible for ensuring that Hamline graduates
meet the requirements of State Licensure Standards.
The State Licensure Standards require, inter alia, that teachers create a positive learning
environment and expect teachers to collaborate with colleagues, seek and give feedback with
both colleagues and students, and establish a positive climate in both the classroom and in the
school as a whole. McLane Depo. Ex. 22. Dr. McLanes concern about Thomas ability to
satisfy these requirements led to her seeking an intervention to allow Thomas to demonstrate a
minimum competency to be positive prior to being placed in charge of a room full of children.
As a general rule, courts should show great respect for the facultys professional judgment.
Cf. Mershon v. St. Louis Univ., 442 F.3d 1069, 1078 (8th Cir. 2006) (quoting Amir, 184 F.3d at
1028) (finding that the school need not make an accommodation for a student who otherwise
failed to meet the necessary standard for admission to the graduate school). Dr. McLanes
professional judgment is strong evidence Hamline had good reason to be concerned about
Thomas ability to satisfy these requirements, and Thomas has provided no evidence that
Hamline made this decision because of her disability. Dr. McLane identified characteristics of
Thomas personality and demeanor that conflicted with the skill set of a successful teacher and
attempted to address that behavior through an observation, an intervention employed by Hamline
when the University had similar concerns with other students ability to perform. For these
reasons, Hamline did not violate the ADA or MHRA by requiring Thomas to conduct a teaching
B. Dr. McLanes Aiding and Abetting
Thomas also claims that Dr. McLane aided and abetted Hamline in discriminating against
her as evidenced by Dr. McLanes desire to set up institutional barriers. Under MHRA, it is
discriminatory for a person intentionally to attempt to aid, abet, incite, compel, or coerce a
person to engage in any of the practices forbidden by this chapter. Minn Stat. 363A.14, subd.
2. A prerequisite for an aiding and abetting claim is that there is an underlying discrimination
claim under MHRA. Tong v. Am. Pub. Media Group, No. A05-432, 2005 WL 3527273, at* 6
(Minn. Ct. App. Dec. 27, 2005). As addressed above, Hamline did not violate the MHRA, and
accordingly, Thomas aiding and abetting claim must likewise fail.
Based upon the foregoing, and all of the files, records and proceedings herein, IT IS
HEREBY ORDERED that Defendants Hamline University and Kathy McLanes Motion for
Summary Judgment [Docket No. 11] is GRANTED.
s/Ann D. Montgomery
Dated: November 21, 2008.


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