                  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.
                                        2

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
                                        3

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
                                   4

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
                                       5

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
                                   6
      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
                                    7

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
                                        8

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
                                       9

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
                                   10

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.
                                      11

        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.
                                          12

       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.
                                        13

      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)
                                     14

(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,
                                         15

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).
                                       16

       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
              ....
                                     17
             (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.
                                      18

        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
                                           19
       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
                                    52

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
                                       53

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
                                      54

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.
