          Case: 15-13883   Date Filed: 04/06/2016   Page: 1 of 13


                                                        [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-13883
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 0:15-cv-60248-KMM



J.A.M.,

                                                           Plaintiff-Appellant,


                                  versus

NOVA SOUTHEASTERN UNIVERSITY, INC.,
a Florida not-for-profit corporation,

                                                          Defendant-Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                             (April 6, 2016)
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Before TJOFLAT, HULL, and JILL PRYOR, Circuit Judges.

PER CURIAM:

       Plaintiff J.A.M. appeals the district court’s order granting Defendant Nova

Southeastern University, Inc.’s (“Nova”) motion to dismiss the amended complaint

for failure to state a claim. After review, we affirm.

                                     I. BACKGROUND

A.     Facts1

       In the fall of 2010, J.A.M. enrolled at Nova’s College of Osteopathic

Medicine and successfully completed his first semester. In April 2011, J.A.M.

experienced a recurrence of his major depressive disorder. During that episode,

J.A.M. heavily consumed alcohol for a week and eventually checked into a

hospital for inpatient psychiatric stabilization. Nova granted J.A.M. retroactive

medical leave and, following the episode, J.A.M. returned to school and

successfully resumed his studies.

       Nova’s Associate Dean for Student Affairs referred J.A.M. to a student

assistance program, which required him to sign a “one-size-fits-all agreement

calling for random drug tests and abstinence from alcohol.” In the fall of 2011,

J.A.M. experienced a recurrence of his major depressive disorder, which caused

       1
        We recount the facts from the allegations in the amended complaint, which we accept as
true and construe in the light most favorable to the plaintiff. Cinotto v. Delta Air Lines Inc., 674
F.3d 1285, 1291 (11th Cir. 2012).


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him to fail many classes and binge drink. During this second episode, J.A.M. spent

six days in a psychiatric hospital. Following his release from the hospital, Nova

informed J.A.M. that he would have to take a leave of absence and obtain the

approval of the Student Progress Committee to resume his studies. J.A.M. took a

seven-month leave of absence, reenrolled in the fall of 2012, and passed all classes

he had previously failed.

      In November 2012, J.A.M. suffered a third depressive episode that involved

drinking and was twice hospitalized for inpatient psychiatric stabilization. During

the December 2012 winter break, J.A.M. checked himself into a dual-diagnoses

treatment program. In January 2013, he resumed his classes. In April 2013,

J.A.M. suffered a fourth depressive episode and was hospitalized for “alcohol-

involved psychiatric stabilization.” In sum, from 2011 to 2014, J.A.M. was unable

to complete a single full semester of medical school without suffering a relapse of

his major depressive disorder during the semester.

      Nova discovered that J.A.M.’s fourth depressive episode involved alcohol

and told him that he would need to take another medical leave of absence. Nova

also told him that the Student Progress Committee would have to approve his

readmission. During his third medical leave of absence, J.A.M. underwent a

partial-hospitalization program for 45 days and then moved into a transitional




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living facility for two months of intensive outpatient therapy and another month of

normal outpatient therapy.

      At the end of 2013, Nova’s Chair of the Department of Psychiatry examined

J.A.M. and cleared him to return to school, with monitoring. Notwithstanding this

clearance, Nova required J.A.M. to appear before the Student Progress Committee,

whose members questioned him about whether he had breached his substance

abuse and alcohol agreement. In response to the committee’s inquiries, J.A.M.

explained that he had never been to class intoxicated, had never seen a patient

while intoxicated, and had never been in any sort of conflict with faculty, staff, or

other students. The committee voted to dismiss J.A.M. from Nova because all four

of his depressive episodes “involved alcohol.” The committee’s recommendation

was accepted by the dean and affirmed by Nova’s internal appeals process.

B.    Procedural History

      On April 10, 2015, J.A.M. filed a counseled, two-count amended complaint

(the “complaint”) in federal district court against Nova, alleging (1) disability

discrimination under Section 504 of the Rehabilitation Act (“RA”), 29 U.S.C.

§ 794(a) (Count I), and (2) disability discrimination under Title III of the

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12182(a) (Count II).

J.A.M. alleged that Nova excluded him from participation in the College of

Osteopathic Medicine due to his mental illness and, therefore, “discriminated


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against him solely by reason of his disability,” in violation of the RA. J.A.M.

further alleged that Nova “dismissed him . . . in reliance on his being mentally

disabled,” in violation of the ADA.

      On April 16, 2015, Nova filed a motion to dismiss the complaint for failure

to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. In an

August 12, 2015 order, the district court granted Nova’s motion and dismissed the

complaint. J.A.M. appealed.

                                 II. DISCUSSION

A.    Standard of Review

      We review de novo the district court’s grant of a Rule 12(b)(6) motion to

dismiss for failure to state a claim. Cinotto v. Delta Air Lines Inc., 674 F.3d 1285,

1291 (11th Cir. 2012). When evaluating a motion to dismiss, a court looks to see

whether the complaint contains sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face. Surtain v. Hamlin Terrace Found., 789

F.3d 1239, 1245 (11th Cir. 2015). This plausibility standard is met when the

plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged. Id. “A pleading

that offers a formulaic recitation of elements of a cause of action will not do.”

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (quotation

marks omitted). “[C]onclusory allegations, unwarranted deductions of fact or legal


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conclusions masquerading as facts will not prevent dismissal.” Oxford Asset

Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002).

B.     ADA Title III Claim

       Title III of the ADA sets forth a general rule against disability-based

discrimination in public accommodations 2:

       No individual shall be discriminated against on the basis of disability
       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) (emphasis added). Title III also sets forth a statutory

definition of “discrimination,” which includes, inter alia:

       (i) the imposition or application of eligibility criteria that screen out
       or tend to screen out an individual with a disability or any class of
       individuals with disabilities from fully and equally enjoying any
       goods, services, facilities, privileges, advantages, or accommodations,
       unless such criteria can be shown to be necessary for the provision of
       the goods, services, facilities, privileges, advantages, or
       accommodations being offered;

       (ii) a failure to make reasonable modifications in policies, practices,
       or procedures, when such modifications are necessary to afford such
       goods, services, facilities, privileges, advantages, or accommodations
       to individuals with disabilities, unless the entity can demonstrate that
       making such modifications would fundamentally alter the nature of
       such goods, services, facilities, privileges, advantages, or
       accommodations;



       2
       A “public accommodation” includes a “postgraduate private school.” 42 U.S.C.
§ 12181(7)(J).
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      (iii) a failure to take such steps as may be necessary to ensure that no
      individual with a disability is excluded, denied services, segregated or
      otherwise treated differently than other individuals because of the
      absence of auxiliary aids and services, unless the entity can
      demonstrate that taking such steps would fundamentally alter the
      nature of the good, service, facility, privilege, advantage, or
      accommodation being offered or would result in an undue burden; . . .

Id. § 12182(b)(2)(A)(i-iii) (emphasis added).

      The definition of discrimination provided in Title III covers both tangible

barriers, that is, physical and architectural barriers that would prevent a disabled

person from entering an accommodation’s facilities and accessing its goods,

services and privileges, and intangible barriers, such as discriminatory policies and

procedures that restrict a disabled person’s ability to enjoy the defendant entity’s

goods, services and privileges. Rendon v. Valleycrest Prods., 294 F.3d 1279,

1283-84 (11th Cir. 2002).

      Here, J.A.M. failed to state a claim under Title III of ADA. For starters,

J.A.M. did not plead facts demonstrating that Nova’s actions constituted

“discrimination” under Title III. Nova’s actions do not fall under Title III’s first

definition of discrimination. While Nova’s mandatory substance abuse and alcohol

agreement may constitute a readmission criterion that tends to “screen out” certain

individuals with chronic alcohol-related problems, there is no allegation that this

criterion was not “necessary for the provision of the . . . services . . . being offered”

by Nova. 42 U.S.C. § 12182(b)(2)(A)(i). It is axiomatic that a medical student


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with alcohol problems would have to abstain from alcohol in order to complete his

studies. Nova placed alcohol-related conditions on J.A.M. that were necessary to

facilitate the successful completion of his coursework.

      Nor do Nova’s actions fall under Title III’s second and third definitions of

discrimination. While J.A.M. argues that Nova failed to make “reasonable

modifications” or “take . . . steps . . . to ensure that no individual with a disability

is excluded” (an already specious claim), there is no allegation that making these

accommodations would not “fundamentally alter” the nature of the services

provided by Nova. 42 U.S.C. § 12182(b)(2)(A)(ii-iii). Again, it is self-evident that

J.A.M.’s requested accommodations—repeated medical leaves of absence for

extended amounts of time, exam rescheduling, and excusal of misconduct—would

fundamentally alter his course of study and the skills learned therein. Nova was

under no obligation to provide accommodations that would fundamentally alter the

nature of its osteopathic medicine program. In fact, the Supreme Court has

repeatedly admonished courts to respect the academic judgment of universities.

See, e.g., 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 . . . they should show great respect for the faculty’s professional

judgment.”); Bd. of Curators of the Univ. of Mo. v. Horowitz, 435 U.S. 78, 90, 98

S. Ct. 948, 955 (1978) (“[T]he determination whether to dismiss a student for


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academic reasons requires an expert evaluation of cumulative information and is

not readily adapted to the procedural tools of judicial or administrative

decisionmaking.”). Accordingly, Nova’s actions did not constitute

“discrimination” under Title III.

      In any event, assuming arguendo that Nova “discriminated against” J.A.M.

and inhibited his “full and equal enjoyment of the . . . services . . . of [Nova]” by

requiring him to sign a substance abuse agreement and later dismissing him, the

complaint contains no allegation that Nova discriminated “on the basis of

[J.A.M.’s] disability.” See 42 U.S.C. § 12182(a). J.A.M. alleged that his major

depressive disorder constituted a mental disability. But J.A.M. did not allege that

he was dismissed because of his mental disability. Rather, he alleged that he was

dismissed because he breached his agreement to abstain from alcohol consumption.

At best, Nova discriminated on the basis of J.A.M.’s alcohol-related behavioral

misconduct, not his disability. As such, J.A.M. failed to allege that Nova

discriminated against him on account of his disability and, therefore, failed to state

a claim under Title III.

      J.A.M.’s argument that the substance abuse and alcohol agreement was a

pretext for disability discrimination is without merit. Nova is not required to

excuse past misconduct, even if that misconduct is linked to a student’s mental

disability. See Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454, 465 (4th


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Cir. 2012) (“[M]isconduct—even misconduct related to a disability—is not itself a

disability and may be a basis for dismissal.”) (quotation marks omitted). J.A.M.

breached the substance abuse and alcohol agreement on at least three separate

occasions. His mental disability does not excuse his misconduct.

C.     Rehabilitation Act Claim

       The Rehabilitation Act provides the following protection for persons facing

a disability:

       No otherwise qualified individual with a disability in the United States
       . . . shall, solely by reason of her or his disability, be excluded from
       the participation in, be denied the benefits of, or be subjected to
       discrimination under any program or activity receiving Federal
       financial assistance . . . .

29 U.S.C. § 794(a) (emphasis added). Discrimination claims under the RA are

governed by the same standards used in ADA cases. Cash v. Smith, 231 F.3d

1301, 1305 (11th Cir. 2000). In order to establish a prima facie case of

discrimination under the RA or ADA, the plaintiff must demonstrate that he (1) is

disabled, (2) is a qualified individual, and (3) was subjected to unlawful

discrimination because of his disability. See id.

       An “otherwise qualified” person is one who is able to meet all of a

program’s requirements in spite of his handicap. Onishea v. Hopper, 171 F.3d

1289, 1300 (11th Cir. 1999). In the context of postsecondary education, an

“otherwise qualified” individual must be able to meet the academic and technical


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standards requisite to admission or participation in the education program or

activity, in spite of his handicap. See id.; 34 C.F.R. § 104.3(l)(3).

      In certain circumstances, an educational institution’s refusal to accommodate

the needs of a disabled person amounts to discrimination against that person

because of his disability. See Se. Cmty. Coll. v. Davis, 442 U.S. 397, 412-13, 99

S. Ct. 2361, 2370 (1979). However, “[the RA] imposes no requirement upon an

educational institution to lower or to effect substantial modifications of standards

to accommodate a handicapped person.” Id. at 413, 99 S. Ct. at 2370-71. Where

the purpose of an educational program is to train persons to serve their profession

in all customary ways, an institution’s refusal to make “major adjustments” to its

program in order to accommodate the disabled does not amount to disability-

related discrimination. Id. at 413, 99 S. Ct. at 2370.

      Here, J.A.M.’s RA claim fails for several reasons. First, J.A.M. did not

allege facts demonstrating that Nova dismissed him “solely by reason of . . . his

disability.” See 29 U.S.C. § 794(a). As discussed above, Nova dismissed him due

to his breach of the substance abuse and alcohol agreement, not due to his mental

disability. J.A.M. alleged no other facts suggesting that Nova dismissed him

because of his mental disability, let alone that his mental disability was the sole

reason for dismissal.




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      Second, the allegations in the complaint affirmatively demonstrate that

J.A.M. is not an “otherwise qualified individual” under the RA. See id. His

mental disability renders him wholly unable to participate in Nova’s osteopathic

medicine program. From 2011 to 2014, he was unable to complete a single full

semester of medical school without suffering a relapse of his major depressive

disorder during the semester. These depressive episodes caused him to abuse

alcohol, fail classes, and withdraw from his studies. His disability caused at least

five hospitalizations for psychiatric stabilization in the course of two years. Even

after multiple leaves of absence, one lasting as long as seven months, and intensive

outpatient treatment, he repeatedly relapsed and failed to meet Nova’s academic

requirements. It is clear that J.A.M.’s disability renders him incapable of meeting

the academic and technical standards required to participate in Nova’s osteopathic

medicine program. As such, he is not an “otherwise qualified individual” and

cannot state a claim under the RA. See Onishea, 171 F.3d at 1300; 34 C.F.R.

§ 104.3(l)(3).

      Finally, the allegations in the complaint do not establish that Nova refused to

accommodate J.A.M.’s needs in a way that amounted to disability discrimination.

Nova gave J.A.M. multiple opportunities to complete his coursework in spite of his

mental disability. Nova allowed him to take two medical leaves of absence, retake

examinations, and even referred him to professionals for treatment. It was not until


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J.A.M.’s fourth depressive episode in three years that Nova determined that

dismissal was appropriate. As if it had not done so already, Nova would have

needed to make “major adjustments” to its osteopathic medicine program to

continue accommodating J.A.M. See Davis, 442 U.S. at 413, 99 S. Ct. at 2370.

The RA imposes no such obligation and, therefore, Nova did not discriminate

against J.A.M. because of his disability.

                               III. CONCLUSION

      In light of the foregoing, we affirm the district court’s order dismissing

Plaintiff J.A.M.’s amended complaint.

      AFFIRMED.




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