                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0420n.06

                                           No. 19-6036


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                   FILED
                                                                                  Jul 20, 2020
 MICHAEL DEANGELO,                                       )                   DEBORAH S. HUNT, Clerk
                                                         )
        Plaintiff-Appellant,
                                                         )
                                                         )       ON APPEAL FROM THE
        v.
                                                         )       UNITED STATES DISTRICT
                                                         )       COURT FOR THE MIDDLE
 VANDERBILT UNIVERSITY,
                                                         )       DISTRICT OF TENNESSEE
        Defendant-Appellee.                              )
                                                         )



BEFORE:        CLAY, ROGERS, and DONALD, Circuit Judges

       ROGERS, Circuit Judge. Michael DeAngelo had significant academic difficulties while

he was a Master of Business Administration (MBA) student at Vanderbilt University’s Owen

Graduate School of Management. DeAngelo, who has Autism Spectrum Disorder, received

numerous poor grades at Vanderbilt and exceeded the school’s academic strike limit during his

second year in the MBA program. In lieu of being immediately dismissed from the program,

DeAngelo and Vanderbilt reached an agreement to allow him to withdraw.                   DeAngelo

subsequently filed suit alleging that the school discriminated against him because of his disability

in violation of the Americans with Disabilities Act (ADA) and the Rehabilitation Act. But he has

failed to present evidence that he would have been able to meet the program’s academic

requirements had he been provided the promised reasonable accommodations.

       Michael DeAngelo is a former MBA student at Vanderbilt’s Owen School who has Autism

Spectrum Disorder, which is sometimes referred to as Asperger’s Syndrome. DeAngelo initially
No. 19-6036, DeAngelo v. Vanderbilt Univ.


received good grades, but his grades declined from his second semester onwards. DeAngelo

exceeded Vanderbilt’s academic strike limit during his second year in the program and ultimately

chose to withdraw, rather than be dismissed from the school.

       Vanderbilt’s MBA program has four modules in each academic year, two modules per

semester. Students receive grades of either Superior Pass (SP), High Pass (HP), Pass (P), Low

Pass (LP), or Fail (F). The school’s academic policy treats LP and F grades as academic strikes.

A student receives one full academic strike if he receives an F in a class and half an academic

strike if he receives an LP in a class. Under the school’s policy, a student who accumulates “3 or

more strikes at any time” or maintains a GPA below 3.0 is dismissed from the program.

       DeAngelo enrolled in Vanderbilt’s MBA program in Fall 2014. He received a 3.4 GPA

during his first semester in the MBA program, but accrued 1.5 academic strikes during his second

semester, the Spring 2015 semester. He received an LP in Financial Reporting and an F in

International Financial Markets. DeAngelo’s Financial Reporting professor explained that his LP

grade was based on the fact that he “ha[d] not mastered the course material well,” frequently

missed class, scored the lowest on the mid-term and final exams, and ranked last in the class

overall. DeAngelo’s International Financial Markets professor explained that DeAngelo received

an F because his performance on the course assignments demonstrated that he “ha[d] not mastered

the material in the course” and “rather than contributing to the [class] discussion his comments

were often distracting, of[f] topic, and occasionally rude.” The International Financial Markets

course required an element of group work, but DeAngelo did not work with any group. Instead,

DeAngelo attempted to complete the work by himself. The professor took this into account and

gave DeAngelo a “neutral grade” on the team evaluation portion of the course grade because he

worked alone on class projects. DeAngelo received an average score of 34.5% on his individual



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No. 19-6036, DeAngelo v. Vanderbilt Univ.


assignments in the course. The professor further commented that DeAngelo missed class and the

professor questioned whether DeAngelo “ha[d] some type of sickness, perhaps depression,” that

could be interfering with his academic coursework.

          DeAngelo’s academic troubles at Vanderbilt’s Owen School continued in the first semester

of his second academic year, the Fall 2015 semester.          DeAngelo received an LP in Data

Management and Business Intelligence in Module I of the Fall 2015 semester, which meant that

he received an additional half academic strike under the school’s policy. The professor explained

that DeAngelo had not mastered the course material, did not complete many of the course

assignments, received a grade of 36 out of 100 on the final exam (whereas the class average on the

final exam excluding DeAngelo’s grade was 81 out of 100), and rarely attended class. DeAngelo

had therefore accumulated 2.0 academic strikes at this point in his academic tenure at Vanderbilt.

          Further, DeAngelo sent a series of profane and threatening emails to his professor in his

Controversies and Debates in Business class in September 2015, during Module I of the Fall 2015

semester. DeAngelo stated in part that he “could kick the living crap out of this bastard [Professor]

Barry.” He included the school’s Dean, Eric Johnson, and Assistant Dean, Kelly Christie, on these

emails.

          Subsequently, Vanderbilt’s Equal Opportunity, Affirmative Action, and Disability

Services reached out to DeAngelo to offer assistance in the event that DeAngelo felt “that [he had]

a medical condition or medical conditions that r[o]se to the level of disabilities” and felt that he

needed reasonable accommodations. DeAngelo responded “[n]ot that it is any of your business, I

am autistic,” but did not request any accommodations. He also stated, “I don’t appreciate violent

people accusing me of things and treating me like dirt.” Vanderbilt’s Disability Services Director

then reached out to DeAngelo again, but he did not respond. The school ultimately suspended



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No. 19-6036, DeAngelo v. Vanderbilt Univ.


DeAngelo for the remainder of the Fall 2015 semester because of his profane and threatening

emails, and referred him to a psychologist.

       The psychologist, Dr. David Sacks, diagnosed DeAngelo in November 2015 with Autism

Spectrum Disorder, “requiring support for deficits in social communication . . . without

accompanying intellectual or language impairment.” The psychologist commented that DeAngelo

appeared to be “highly intelligent and to possess a great degree of confidence in his abilities, which

lie in concrete domains such as quantitative analysis and making predictions based on known

data.” In addition, the psychologist advised that “Michael would likely benefit from added support

to gain explicit understanding of implicit or nuanced behavioral and social expectations, possibly

through the provision of a peer coach or mentor.” Partly in response to this diagnosis, Vanderbilt

lifted DeAngelo’s suspension and allowed him to return to the school in Module III during the

Spring 2016 semester.

       DeAngelo, his parents, and Vanderbilt discussed potential services to assist DeAngelo in

his transition back to the MBA program. Vanderbilt suggested and agreed that Assistant Dean

Kelly Christie “would be available to counsel DeAngelo” and that Dean Christie “would make

sure that DeAngelo’s professors were aware of DeAngelo’s disability and educated about how to

properly accommodate his disability.”

       Upon returning to Vanderbilt’s Owen School, DeAngelo received another 1.5 academic

strikes in Module III in the Spring 2016 semester. He received an F in Negotiation and an LP in

Applied Investment Management. His Negotiation professor explained that DeAngelo did not

properly complete two of the key assignments, accounting for 40% of his grade. Specifically,

DeAngelo did not complete a “takeaway sheet,” which accounted for 10% of his grade, and did

not comply with the directions for the final paper, which accounted for 30% of his grade. The



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No. 19-6036, DeAngelo v. Vanderbilt Univ.


final paper assignment tasked students “with carrying out a real world negotiation and analyzing

the negotiation and [themselves] as a negotiator,” but DeAngelo turned in “a paper summarizing

characters from a video game” in lieu of the assigned project. DeAngelo’s Negotiation professor

also commented that DeAngelo’s other written assignments were minimally completed, but stated

that she gave him “more leeway on those.” Further, DeAngelo’s Applied Investment Management

professor explained why he gave DeAngelo an LP in the course:

       In 38 years of teaching, I cannot recall a student like this. The first indication that
       something was amiss was when no group wanted Michael to be part of their team
       when the teams self-selected at the beginning of the mod. I cajoled a particularly
       good team into inviting him to join, and they graciously took him on. It is my
       understanding that he participated in team meetings but contributed little or no work
       to the team’s work product. Scored 30 points on the final (second lowest in class).
       Average was 75, and median was 79.

Accordingly, DeAngelo had accumulated 3.5 academic strikes by the end of Module III in the

Spring 2016 semester, exceeding the limit under Vanderbilt’s policy. DeAngelo therefore faced

dismissal based on his academic record.

       Under Vanderbilt’s academic policy, once a student meets or exceeds the academic strike

limit, the student is notified and informed that he can appeal his dismissal to the Student

Achievement Committee (SAC). If a student does not appeal, or if the appeal is unsuccessful, then

the student is withdrawn from the school. Dean Christie notified DeAngelo on March 24, 2016,

that he had exceeded the academic strike limit and informed him that the school would need to

take action in accordance with its academic policy. Dean Christie reached out to DeAngelo again

on April 6, 2016, about the fact that he had exceeded the academic strike limit and offered to meet

with him and Dean Johnson to assist him with crafting an appeal statement. But DeAngelo never

took her up on this offer. Instead, he asked if the notice was “an attempt to scare [him],” explained

that he was appealing his grades, and informed Dean Christie that she would be contacted by his



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No. 19-6036, DeAngelo v. Vanderbilt Univ.


lawyer. Several weeks later, on April 19, Vanderbilt sent another letter to DeAngelo explaining

that he had exceeded the strike limit and that the SAC had recommended that he be dismissed from

the MBA program.1 The letter informed DeAngelo that he could submit a written appeal within

seven days.

         DeAngelo and his parents also met with Dean Christie and Dean Johnson on April 19.

DeAngelo requested that he be allowed to withdraw from Vanderbilt’s Owen School at the end of

Module IV after his last exam in the Spring 2016 semester, rather than be dismissed immediately.

Vanderbilt agreed to this request and this agreement was confirmed in writing.

         Subsequently, DeAngelo brought this suit against Vanderbilt, alleging that the school

violated the ADA and the Rehabilitation Act. DeAngelo alleges that his grades were the result of

Vanderbilt’s unlawful disability discrimination and its failure to provide him with reasonable

accommodations. DeAngelo contends that his Autism Spectrum Disorder interfered with his

ability to collaborate with other students and to communicate appropriately with his professors.

DeAngelo asserts that Vanderbilt failed to notify and educate his professors about his disability,

which led some professors to view his behavior in a negative manner and to give him poor grades

as a result of their bias against him. In addition, DeAngelo claims that he was unfairly subjected

to disparate treatment in Vanderbilt’s enforcement of its academic strike policy.

         After filing suit, DeAngelo discovered several emails in which Vanderbilt’s faculty made

derogatory or inappropriate statements about him. Professor Timothy Vogus, who did not give

DeAngelo any LP or F grades, sent three disparaging emails. Professor Vogus referred to

DeAngelo as a “huge show off” and claimed “his showing off always serves to illustrate how


1
 Vanderbilt differed slightly from its normal process in handling DeAngelo’s case. Typically, the SAC does not meet
until the student files an appeal. But Vanderbilt notified the SAC earlier in this situation because “there was a concern
for the student’s well-being and, in particular, a concern how the student would react to being told that they are being
withdrawn from the program.” The school therefore wanted to confirm that the SAC would “uphold the policy.”

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No. 19-6036, DeAngelo v. Vanderbilt Univ.


incredibly vacuous he actually is,” called DeAngelo a “complete and total asshole,” and stated

“there is nothing worth taking seriously about this guy except that he needs help and has no

business getting a degree from us.” Also, Professor Robert Whaley, who gave DeAngelo an LP

in Applied Investment Management in Module III in the Spring 2016 semester, wrote that “this

guy never should have been admitted” and that “[i]t doesn’t appear that he is going away anytime

soon.” Professor Whaley’s email that DeAngelo should not have been admitted to Vanderbilt was

apparently sent in January 2016, which is several months before Professor Whaley issued his final

grade of LP for DeAngelo in Applied Investment Management.2 Professor Whaley’s other email,

saying that it did not appear that DeAngelo was going away anytime soon, was apparently written

after DeAngelo had exceeded the academic strike limit and had agreed to withdraw from the MBA

program. Finally, Professor Jessica Kennedy, who gave DeAngelo an F in Negotiation in Module

III in the Spring 2016 semester, emailed her colleague that “Michael’s rants and this Trump thing

have me acknowledging that a lot of Republicans really are Neanderthals.” Professor Kennedy’s

email was apparently written after DeAngelo had submitted his coursework in her Negotiation

course. DeAngelo claims that these statements demonstrate that his professors had an animus

against him and were biased in giving him low grades.

         Vanderbilt filed a motion to dismiss DeAngelo’s complaint for failure to state a claim.

Vanderbilt argued in its motion to dismiss that DeAngelo’s complaint sought to challenge

Vanderbilt’s academic judgments and did not contain factual allegations that he was dismissed

from the MBA program in violation of the ADA or Rehabilitation Act. To establish that an

individual was dismissed from an academic program in violation of the ADA or Rehabilitation



2
  The actual emails are not in the record. DeAngelo has only made selective references to their contents and has not
included any dates along with these emails. Vanderbilt asserts that this email from Professor Whaley is the only email
that was sent prior to a professor’s assigning a grade to DeAngelo. DeAngelo does not dispute this assertion.

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No. 19-6036, DeAngelo v. Vanderbilt Univ.


Act, a plaintiff must show: “(1) [he] is handicapped or disabled as defined in each statute, (2) [he]

is ‘otherwise qualified’ to continue in the program, and (3) [he] was dismissed from the program

on the basis of his handicap or disability.” Kaltenberger v. Ohio Coll. Of Podiatric Med., 162 F.3d

432, 435 (6th Cir. 1998). Vanderbilt asserted that DeAngelo’s complaint did not contain factual

allegations that he was “otherwise qualified” to continue in Vanderbilt’s MBA program, failed to

allege that DeAngelo proposed a specific accommodation that would have allowed him to meet

the MBA program’s requirements had it been provided, and failed to allege that DeAngelo was

dismissed from the MBA program on the basis of his disability.

       In the parties’ briefing on Vanderbilt’s motion to dismiss, they attached materials that were

not part of the complaint. This led the district court to convert the motion to dismiss to a motion

for summary judgment pursuant to Federal Rule of Civil Procedure 12(d). The district court

provided notice to the parties that it was converting the motion to a summary judgment motion,

and the court discussed “the needs of the parties to adequately respond” during a teleconference.

The court permitted limited discovery so that the parties could present all pertinent material to the

converted motion and allowed supplemental briefing. Discovery had to be completed about six

weeks after this order was issued and the parties’ supplemental briefing was due several months

after this order. The court specifically requested that the parties provide evidence explaining three

“factual disputes” that were outside the scope of the pleadings: (1) the concept and relevance of

modules; (2) DeAngelo’s alleged requests to Vanderbilt for reasonable accommodations; and

(3) documentation relevant to the alleged rushed review of DeAngelo’s grades that led to his

dismissal.

       Following supplemental briefing, the district court granted Vanderbilt’s converted

summary judgment motion. The court determined that DeAngelo was not “otherwise qualified”



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No. 19-6036, DeAngelo v. Vanderbilt Univ.


to remain in the MBA program, as his requests for accommodations would not have qualified him

to continue in the program. Several of his requests for accommodations were easily dismissed as

irrelevant to his suit, such as his request to potentially transfer institutions. But the court more

extensively analyzed DeAngelo’s allegation that his professors should have been notified of his

disability and educated on how to appropriately accommodate him. The court examined the idea

that his professors could have been informed that they should help DeAngelo find classmates who

would be willing to work with him on group projects. While the record demonstrates that

DeAngelo had difficulty finding teams that would work with him on group projects, the court

concluded that there was not a question of fact regarding whether this specific accommodation

would have made him qualified. Although DeAngelo did not work with a team to complete group

projects in his International Financial Markets course and received an F before the school learned

of his disability, the professor gave DeAngelo a “neutral grade” on the team evaluation portion of

the course grade because he worked alone on class projects. The professor in this course explained

that DeAngelo’s grades on his individual assignments were extremely poor, he did not demonstrate

an understanding of the course material, and he was frequently absent. The court reasoned that

faculty assistance to aid DeAngelo find a team to work with on group projects would therefore not

have made a difference because he did not receive a negative grade on this aspect of the course

and received extremely low marks in the other aspects of the course. Also, DeAngelo’s professor

in his Applied Investment Management course, which DeAngelo took after the school was aware

of his disability, did provide this support and helped DeAngelo join a team to complete group

projects. Yet DeAngelo still received an LP in the course, scoring the second lowest grade on the

final.




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No. 19-6036, DeAngelo v. Vanderbilt Univ.


       The district court also rejected DeAngelo’s assertion that his F in Negotiation resulted from

a “misunderstanding” about the final paper’s requirements. The court determined that DeAngelo

had not explained how any alleged misunderstanding related to his disability and had not

demonstrated how any of the accommodations that he sought would have prevented his failing

grade in the course. The court deferred to DeAngelo’s professor’s discretion in assessing the

academic performance of students.

       Because DeAngelo failed to establish that he was “otherwise qualified,” the district court

also rejected his disparate treatment claim. DeAngelo’s inability to demonstrate that he was

“otherwise qualified” meant that he could not establish a prima facie case of discrimination. Thus,

DeAngelo failed the McDonnell-Douglas burden shifting analysis.

       The district court accordingly granted Vanderbilt’s converted summary judgment motion

and dismissed DeAngelo’s ADA and Rehabilitation Act claim. The court also denied DeAngelo’s

motion to review the magistrate judge’s ruling denying his request to file another amended

complaint while the converted summary judgment motion was pending.

       DeAngelo now appeals the district court’s decision. First, DeAngelo argues that the court

should have analyzed the question of whether he was “otherwise qualified” under the motion to

dismiss standard, not the summary judgment standard. Second, DeAngelo contends that he has

provided sufficient support to demonstrate that he was “otherwise qualified” to continue in

Vanderbilt’s MBA program. Neither contention warrants reversal.

       First, the district court correctly applied the summary judgment standard to the issue of

whether DeAngelo was “otherwise qualified” to continue in Vanderbilt’s MBA program. There

is no genuine issue of material fact that DeAngelo was not “otherwise qualified” to remain in the

program. DeAngelo has not presented evidence that he would have been able to meet the



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No. 19-6036, DeAngelo v. Vanderbilt Univ.


program’s academic requirements even if he had been fully provided with the promised reasonable

accommodations.

       The district court was correct in analyzing all aspects of Vanderbilt’s converted motion

under the summary judgment standard, including the issue of whether DeAngelo was “otherwise

qualified.” Although the district court specifically identified three issues and requested that the

parties provide evidence regarding these issues in its order converting Vanderbilt’s motion to

dismiss to a motion for summary judgment, the court’s order did not confine its conversion of

Vanderbilt’s motion to only these three issues. Instead, the court converted the entire motion to a

summary judgment motion and permitted the parties to present all material relevant to the issue of

whether DeAngelo was “otherwise qualified.”

       The district court converted Vanderbilt’s motion to dismiss to a summary judgment motion

pursuant to Federal Rule of Civil Procedure 12(d), not Rule 56(f)(3) as DeAngelo now argues.

Rule 12(d) requires that district courts treat motions to dismiss as motions for summary judgment

under Rule 56 if matters outside the pleadings are presented as part of the original motion and are

not excluded by the district court. Fed. R. Civ. P. 12(d). Rule 56(f)(3), on the other hand, allows

a court to consider summary judgment on its own after identifying material facts that may not be

genuinely in dispute, subject to prior notice and a reasonable time for the parties to respond. Fed.

R. Civ. P. 56(f)(3). But the court did not identify “material facts that may not be genuinely

disputed” in its conversion order as occurs under Rule 56(f)(3). Id. Rather, the district court

identified three “factual disputes” that were presented at oral argument and in the parties’ briefing

but that were outside the scope of the pleadings. The court’s process was consistent with Rule

12(d), just as the court stated in the conversion order.




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No. 19-6036, DeAngelo v. Vanderbilt Univ.


       In converting Vanderbilt’s motion to dismiss to a summary judgment motion pursuant to

Rule 12(d), the district court was required to give the parties “a reasonable opportunity to present

all the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d). The court recognized and

adhered to this requirement. The conversion order states that “the [c]ourt is permitting discovery,

so [the] parties may present ‘all the material that is pertinent’ to the converted motion.” The order

goes on to request specifically that the parties present additional evidence regarding three specific

topics: (1) explaining the module system, (2) showing DeAngelo’s alleged requests to Vanderbilt

for reasonable accommodations, and (3) documenting Vanderbilt’s alleged rushed review of

DeAngelo’s grades. Both parties read this language in the court’s conversion order as limited to

only these three issues.

       Even accepting such a limited reading of the district court’s conversion order, DeAngelo

was not prevented from engaging in discovery on the cause of his academic strikes. DeAngelo

contends that he was not properly notified that the court would be considering evidence on the

cause of his academic strikes and asserts that the court should have only considered that issue

based on the allegations contained in his amended complaint. DeAngelo states that had the

converted motion included the issue of the cause of his academic issues, he would have “(1) sought

clarification of relevant professors’ grading systems, (2) challenged professors’ self-serving

explanations of low grades, (3) sought expert review of DeAngelo’s exams and work product, and

(4) sought expert opinion concerning the efficacy of the proposed accommodations.” But the

second issue identified by the district court, which focused on DeAngelo’s alleged requests to

Vanderbilt for reasonable accommodations, was relevant to the issue of whether DeAngelo was

“otherwise qualified” and therefore was relevant to the cause of his academic issues. Evidence

regarding what accommodations DeAngelo requested and whether Vanderbilt provided these



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No. 19-6036, DeAngelo v. Vanderbilt Univ.


accommodations provided the district court with insight about whether DeAngelo’s disability

contributed to his academic issues and whether he was “otherwise qualified” to remain in the

program. So while the district court did not explicitly identify the issue of the cause of DeAngelo’s

academic issues, the court did identify a related issue that was aimed at getting to the heart of

whether DeAngelo was “otherwise qualified” to remain in the MBA program, which was a central

component of Vanderbilt’s motion. Accordingly, DeAngelo was not precluded from engaging in

additional discovery regarding this issue.

       Further, the district court explicitly permitted DeAngelo to ask for additional discovery in

litigating the converted motion. In the court’s case management order following the conversion

order, the court informed DeAngelo that he could “[s]ubmit to the Court a motion seeking

permission to take additional discovery if Plaintiff believes that the information obtained is

inadequate to allow Plaintiff a reasonable opportunity to present all material that is pertinent to the

pending motion.” But DeAngelo never asked for additional discovery regarding the cause of his

academic strikes even though this was relevant to the issue of whether DeAngelo was “otherwise

qualified” and whether he could meet Vanderbilt’s academic requirements with reasonable

accommodations—critical aspects of Vanderbilt’s motion.

       Also, DeAngelo engaged in discovery related to the cause of his academic strikes.

DeAngelo was the one who submitted the professors’ explanations of his LP and F grades.

Although he now contends that this evidence was included for a purpose other than to show the

cause of his academic strikes, we cannot fault the district court for using this evidence in its

assessment of why DeAngelo received his academic strikes. Indeed, these academic reports are

direct evidence of why DeAngelo received academic strikes in these classes.               In addition,

DeAngelo obtained disparaging emails from Vanderbilt’s faculty about him during discovery.



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No. 19-6036, DeAngelo v. Vanderbilt Univ.


DeAngelo included statements from these emails in his supplemental brief after Vanderbilt’s

motion had been converted to a motion for summary judgment. Accordingly, DeAngelo was able

to present this evidence to the district court in support of his argument that his professors were

biased against him, and at no point did he request additional discovery on the matter despite the

opportunity to do so.

       Thus, DeAngelo had adequate notice that the court would be considering evidence—

including the evidence that he presented—regarding the cause of his academic strikes and whether

he was “otherwise qualified,” and he was not precluded from engaging in discovery on these

topics. Given that the court’s conversion order applied to all matters raised in Vanderbilt’s Rule

12(b)(6) motion, the district court properly assessed whether DeAngelo was “otherwise qualified”

under the summary judgment standard.

       The court properly concluded that DeAngelo was not “otherwise qualified” to continue in

Vanderbilt’s MBA program, as DeAngelo did not present evidence to raise a genuine issue of

material fact that he would have been able to meet the program’s academic requirements had he

been provided the promised reasonable accommodations.

       To establish that an individual was dismissed from an academic program in violation of

the ADA or Rehabilitation Act, a plaintiff must show: “(1) [he] is handicapped or disabled as

defined in each statute, (2) [he] is ‘otherwise qualified’ to continue in the program, and (3) [he]

was dismissed from the program on the basis of his handicap or disability.” Kaltenberger,

162 F.3d at 435; see also Jakubowski v. Christ Hosp., Inc., 627 F.3d 195, 201 (6th Cir. 2010).

Vanderbilt concedes for the purposes of this motion that DeAngelo can establish that he was

disabled, so the parties dispute only the second and third factors in this analysis. This appeal

focuses specifically on whether DeAngelo can establish that he was “otherwise qualified.”



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No. 19-6036, DeAngelo v. Vanderbilt Univ.


An individual with a disability is “otherwise qualified” to remain in an academic program “if [he]

can meet its necessary requirements with reasonable accommodations.” Kaltenberger, 162 F.3d

at 435.

          DeAngelo cannot establish that he would have been able to meet Vanderbilt’s academic

standards had Vanderbilt provided the promised reasonable accommodations. DeAngelo had

accumulated 2.0 academic strikes before Vanderbilt learned of his disability in November 2015.

Vanderbilt was not required to provide any accommodation to DeAngelo under the ADA or

Rehabilitation Act until it received notice that he had Autism Spectrum Disorder. See id. at 437;

see also Carten v. Kent State Univ., 78 F. App’x 499, 500–01 (6th Cir. 2003). We therefore focus

on the reasonable accommodations that were requested and promised as well as DeAngelo’s grades

from this point forward. At this stage, DeAngelo focuses on two reasonable accommodations that

Vanderbilt promised to provide: (1) that Dean Christie would be available to counsel DeAngelo

and (2) that Vanderbilt would notify its faculty of DeAngelo’s disability and educate them on how

to accommodate his disability.3               Although Vanderbilt contends that these proposed

accommodations were not sufficiently specific and direct, we will assume without deciding that

they were sufficiently specific and direct because there is no genuine issue of fact that either of

these accommodations would have made a difference in DeAngelo’s inability to meet Vanderbilt’s

academic requirements.

          First, Dean Christie offered to provide DeAngelo with assistance and did not have any

involvement in grading his coursework. DeAngelo points to several emails from Dean Christie



3
 DeAngelo also now states that Vanderbilt promised an accommodation that “[i]f students were reluctant to perform
group work with DeAngelo, faculty would intervene to facilitate DeAngelo’s participation in a group.” This
accommodation was a component of the promised accommodation that Vanderbilt would notify its faculty of
DeAngelo’s disability and educate them on how to accommodate his disability, not a separate promised
accommodation. We therefore discuss Vanderbilt’s facilitation of finding groups for DeAngelo to work with when
discussing that accommodation.

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No. 19-6036, DeAngelo v. Vanderbilt Univ.


that contain statements indicating that she found DeAngelo to be rude, disruptive, and disrespectful

and asks the court to infer from these statements that Dean Christie sought to undermine DeAngelo,

rather than to help him. But DeAngelo does not provide any actual evidence that she sought to

undermine him, and he does not provide any evidence that she refused to assist him. Instead, the

evidence shows that Dean Christie reached out to him on several occasions to offer assistance.

Dean Christie recommended in January 2016 that DeAngelo reconsider his plan to remain in his

Negotiation course, a course DeAngelo ended up receiving an F in, because it was collaborative

and required working with classmates, which was not DeAngelo’s strength. But DeAngelo

ignored Dean Christie’s caution, responding that he was “a great negotiator.” In early 2016, Dean

Christie provided DeAngelo with detailed requirements for gaining approval to potentially

complete his graduation requirements at another school in response to DeAngelo’s request for

information regarding this possibility. Also, in February 2016, Dean Christie offered to meet with

DeAngelo to develop a plan for DeAngelo to complete his degree in response to an email in which

DeAngelo alleged that he detected “fraud and bias” and disparagingly called a professor “a felon.”

Finally, Dean Christie provided DeAngelo with several notices that he could appeal his dismissal

for exceeding the academic strike limit and offered to assist him in drafting his appeal. But again,

DeAngelo did not take Dean Christie up on this offer. This evidence demonstrates that Dean

Christie did offer to provide DeAngelo with assistance and attempted to aid him in fulfilling his

degree requirements.

       Perhaps more importantly, Dean Christie had no role in grading DeAngelo, so she could

not have caused DeAngelo to receive any academic strikes. Dean Johnson explained to DeAngelo

that “faculty hold the authority on grading,” and Dean Christie was never DeAngelo’s professor.

Further, the professors who drafted academic difficulty reports to explain their LP or F grades for



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No. 19-6036, DeAngelo v. Vanderbilt Univ.


DeAngelo never mentioned that Dean Christie had any influence over the grades they gave.

Therefore, Dean Christie could not have caused DeAngelo to exceed the academic strike limit, and

her actions did not relate to DeAngelo’s ability to meet Vanderbilt’s academic requirements.

       Second, assuming Vanderbilt did not fully fulfill its promised accommodation of notifying

its faculty of DeAngelo’s disability and educating them on how to accommodate his disability, this

accommodation would not have enabled DeAngelo to meet Vanderbilt’s academic requirements.

As discussed, DeAngelo had accumulated 2.0 academic strikes before Vanderbilt became aware

of his disability and agreed to this accommodation.            The accommodation only applied

prospectively to the Spring 2016 semester. In Module III of the Spring 2016 semester, DeAngelo

received an F in Negotiation and an LP in Applied Investment Management, resulting in another

1.5 academic strikes and putting him above the academic strike limit. There is no question of fact

regarding whether this accommodation would have prevented him from receiving these additional

academic strikes.

       In DeAngelo’s Applied Investment Management course, the professor helped DeAngelo

find a team to work with on group projects when he was not able to join a team himself, yet

DeAngelo still received an LP in the course. DeAngelo received the second lowest score on the

final in this class, scoring 30 points, which was well below the class average of 75 and class median

of 79. This demonstrates that DeAngelo was unable to succeed in this course even when the school

provided him with his desired accommodation of helping him to find classmates who he could

work with on group projects.

       In DeAngelo’s Negotiation course, his F had no relation to Vanderbilt’s failure to notify

his professor about his disability or failure to educate his professor on how to accommodate his

disability. Instead, DeAngelo received an F because he did not properly complete two assignments



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No. 19-6036, DeAngelo v. Vanderbilt Univ.


accounting for 40% of his grade in the course, including turning in a final paper about characters

in a video game rather than completing the actual assigned project. DeAngelo also minimally

completed his other assignments in the course. DeAngelo has not presented any evidence or

explanation for how Vanderbilt’s provision of this accommodation would have assisted him in

completing these assignments. Instead, DeAngelo contends that he received a failing grade due to

an alleged “misunderstanding” about the final project’s requirements and claims that he was not

permitted to resubmit his final project because a “misunderstanding” precluded him from

discovering before it was too late that he allegedly could have resubmitted the paper. DeAngelo

asserts that if the professor had been educated on his disability, then these alleged

misunderstandings would not have occurred so he would not have failed the course. But there is

no evidence showing that these alleged misunderstandings were related in any way to DeAngelo’s

disability.    According to the psychologist who examined DeAngelo, his disability had no

“accompanying intellectual or language impairment.”        Therefore, there is no evidence that

indicates that DeAngelo had issues understanding or adhering to directions on assignments.

Accordingly, there is no evidence to suggest that notifying DeAngelo’s Negotiation professor

about his disability and educating her on how to accommodate DeAngelo’s disability would have

prevented these alleged misunderstandings. DeAngelo’s grade in this course did not relate to

Vanderbilt’s failure to provide this accommodation—it resulted from DeAngelo’s own academic

failure.

           DeAngelo’s assertion that this accommodation would have prevented his F in his

International Financial Markets course in the Spring 2015 semester also fails to present a genuine

issue of material fact. DeAngelo contends that he would have passed the course if he had been

included on a team to work with for group projects, instead of attempting to do this work by



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No. 19-6036, DeAngelo v. Vanderbilt Univ.


himself.     Accordingly, DeAngelo argues that Vanderbilt’s failure to accommodate him by

notifying and educating its faculty so that faculty could intervene if students refused to work with

him resulted in his F in this course. But DeAngelo took this class in the Spring 2015 semester,

well before Vanderbilt was aware of his disability and agreed to provide this accommodation.

There is no evidence that DeAngelo sought any accommodation that would have retroactively

erased this F or provided special leniency for the academic strike earned as a result of this F. 4 A

request for such retroactive accommodation likely would not have even been reasonable. See

Carlson v. Carrol Univ., No. 09-C-551, 2011 WL 5921445, at *13 (E.D. Wis. Nov. 28, 2011); cf.

DeWitt v. Sw. Bell Tel. Co., 845 F.3d 1299, 1316 (10th Cir. 2017). Further, DeAngelo’s argument

ignores that his professor in this course gave him a “neutral grade” on the team project because he

worked alone, so this aspect of his course grade did not negatively impact his overall grade in the

course. DeAngelo received an F primarily because his performance on the course assignments

demonstrated that he “ha[d] not mastered the material in the course.”

         Finally, DeAngelo has not established a genuine issue of material fact that his academic

difficulties resulted from his professors’ bias against him based on his deficits in social

communication that stem from his disability, rather than his poor academic performance.

DeAngelo claims that the emails in which some Vanderbilt faculty members made derogatory or



4
  Under Vanderbilt’s academic policy, students are permitted to retake courses in which they received an F and upon
successful completion of the course, the strike associated with the initial failure of the course is removed from the
student’s strike total. DeAngelo was therefore allowed to retake the class and he was in fact enrolled in this course in
Module IV of the Spring 2016 semester. By retaking the course and passing it, DeAngelo would have been able to
remove the academic strike that he received as a result of getting an F in the course the first time. However, DeAngelo
exceeded the academic strike limit during Module III of the Spring 2016 semester and under Vanderbilt’s academic
policy, a student is dismissed from the program once they accumulate 3 or more academic strikes. Therefore,
DeAngelo did not have an opportunity to remove his academic strike caused by his F in his International Financial
Markets course before the school’s academic policy called for him to be dismissed from the MBA program. Although
Vanderbilt’s policy called for students to be withdrawn from all incomplete classes once they reached the strike limit,
DeAngelo and Vanderbilt reached an agreement in which he was allowed to withdraw from the school after completing
Module IV of the Spring 2016 semester. Accordingly, DeAngelo was permitted to complete his second attempt at
taking International Financial Markets and this time he passed the course. But this came too late.

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No. 19-6036, DeAngelo v. Vanderbilt Univ.


inappropriate statements about him demonstrate that these professors were biased against him in

their grading. However, as discussed above, only three of these emails were sent by professors

who gave DeAngelo an F or LP resulting in academic strikes. Of these emails, only one, which

was from DeAngelo’s Applied Investment Management professor, was sent before the professor

issued DeAngelo his final grade. This email stated that DeAngelo should not have been admitted

to Vanderbilt. While these emails are regrettable, they do not indicate that the professors were

inclined to grade DeAngelo more harshly based on his behavioral difficulties. The emails do not

touch on grading at all. On the other hand, the record contains these professors’ detailed and

contemporaneous academic justifications for giving DeAngelo low grades that earned him

academic strikes. Academic judgments, such as grading, are afforded deference, as faculties are

afforded great discretion in assessing students’ academic performance. Regents of Univ. of Mich.

v. Ewing, 474 U.S. 214, 225 & n.11 (1985). These emails do not indicate that DeAngelo’s

professors engaged in “a substantial departure from accepted academic norms as to demonstrate

that [his professors] did not actually exercise professional judgment.” Id. at 225. Further, even if

the email sent by DeAngelo’s Applied Investment Management professor prior to the professor

giving DeAngelo his final grade of an LP in the course could give an inference that this professor

was biased and did not exercise professional judgment, DeAngelo still would have had 3.0

academic strikes. DeAngelo therefore still would have been in violation of Vanderbilt’s academic

policy. Thus, given the detailed academic justifications for these grades in the record and the

deference afforded to these judgments, the emails do not create a genuine issue of material fact

that DeAngelo’s professors gave him low grades resulting in his exceeding the academic strike

limit because of their alleged bias against him.




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No. 19-6036, DeAngelo v. Vanderbilt Univ.


       Accordingly, DeAngelo has not raised a genuine issue of material fact that he was

“otherwise qualified” to continue in Vanderbilt’s MBA program. The evidence demonstrates that

DeAngelo was unable to meet the program’s academic requirements and that the promised

reasonable accommodations would not have enabled him to meet these requirements even had they

been fully provided.

       For the reasons stated above, we affirm the judgment of the district court.




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