                                                   NOT PRECEDENTIAL



         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                    ________

                        No. 13-4550
                        _________

                  PATRICK MCMAHON,
                                                Appellant

                             v.

      SUSAN W. SALMOND, Dean of the University
 of Medicine and Dentistry of New Jersey School of Nursing;
      RUTGERS, The State University of New Jersey


      On Appeal from the United States District Court
                for the District of New Jersey
                  (D.C. No. 2-11-cv-02306)
       District Judge: Honorable Stanley R. Chesler
                           _______

        Submitted Under Third Circuit LAR 34.1(a)
                     July 11, 2014

Before: SMITH, VANASKIE and SLOVITER Circuit Judges

              (Opinion Filed: August 4, 2014)

                        __________

                         OPINION
                        __________
SLOVITER, Circuit Judge.

       Patrick McMahon appeals from the District Court’s order granting the motion of

the State University of New Jersey Rutgers (“Rutgers”) and Susan Salmond for summary

judgment. For the following reasons, we will affirm.1

I. Background

       McMahon is a decorated former Air Force Captain who has completed a number

of undergraduate and graduate degrees. In April 2007, McMahon matriculated into the

University of Medicine and Dentistry of New Jersey (“UMDNJ”) Certified Registered

Nurse Anesthesia (“CRNA”) program to become a nurse practitioner who receives

training and certification in anesthesia care. McMahon began taking classes towards

CRNA certification in September 2007.

       The parties debate which grading policy was in effect and applicable to McMahon.

The Spring 2007 CRNA Policy and Procedure Manual (“2007 PPM”) required that

students “maintain a cumulative GPA of 3.0” and “at least a C grade in all basic sciences

and the anesthesia specialty courses.” (App. 81) A School of Nursing policy document

entitled “Satisfactory Academic Progress,” dated April 27, 2009, stated that “Standards

for Satisfactory Academic Progress included in ‘Requirements for Graduation’

distributed to a student upon matriculation are applicable for the duration of the student’s

continuous matriculation in the same program, despite any changes in standards that may

1
  The District Court had jurisdiction over the Constitutional due process claims pursuant
to 28 U.S.C. § 1331, and supplemental jurisdiction over McMahon’s state law claims
pursuant to 28 U.S.C. § 1367(a). We have jurisdiction under 28 U.S.C. § 1291. We
review de novo a district court’s grant of summary judgment. See Lawrence v. City of
Phila., 527 F.3d 299, 310 (3d Cir. 2008) (citation omitted).
                                             2
apply to newer matriculants.” (App. 89) The 2008 CRNA Program Policy and

Procedure Manual (“2008 PPM”) explained that “Academic policies of the Nurse

Anesthesia Program are congruent with policies published in the UMDNJSN Student

Handbook.” (App. 113) The 2008 PPM also required that

      grades of 3.0 (B, 80%) or better must be earned in all didactic and a P
      (pass) grade in all clinical pre-requisite courses . . . . A one time exemption
      allows a student in the nurse anesthesia program to earn a grade of C+ in a
      course and still remain in the program, on a probationary status. . . . A
      cumulative GPA less than 3.0 or earning of any single course grade less
      than B (80%), will initiate immediate academic probation. . . . If at any
      time during the program of study, a student earns a second course grade
      below 3.0 (B, 80%), . . . he/she earns immediate academic dismissal from
      the Nurse Anesthesia Program.

(App. 113-14)

      While McMahon’s GPA remained above a 3.0 during his time in the program, he

did not receive all grades at or above a “B.” He received a “C” in Advanced Physiology

in Fall 2007, a “C+” in Anesthesia & Co-Existing Disease in Spring 2009, and in Spring

2010, a “C” in Pediatric Anesthesia and a “C+” in Obstetrics. After his first “C”,

McMahon appealed his grade arguing that it was improperly calculated and that Professor

Thomas Pallaria failed to give him a reasonable accommodation for a hearing

impairment. McMahon also complained that Professor Pallaria was making

discriminatory statements regarding the elderly, obese individuals, homosexuals, and

minorities. The school denied his appeal and upheld the “C” grade. In the denial letter,

Dean Salmond cautioned “that another course failure [C grade] in the future may lead to

[his] dismissal from the UMDNJ School of Nursing.” (App. 134) Rutgers permitted him



                                             3
to retake the class; McMahon retook the class and received a “B”. The school took no

action against Professor Pallaria based on McMahon’s complaint.

       McMahon also appealed his second grade lower than a “B”, the “C+” in

Anesthesia & Co-Existing Disease, also taught by Professor Pallaria. Again, the school

upheld McMahon’s grade and permitted McMahon to retake the class “since this grade

occurred under the previous grade policy.” (App. 141)

       In summer 2009, McMahon’s mother passed away. After some back and forth

with the school, Rutgers permitted him to retake or reschedule his exams until after the

funeral. Shortly thereafter, McMahon received orders to report for active duty training.

There is evidence in the record that Rutgers initially balked at McMahon’s request to

choose whether he would withdraw from or receive an incomplete in the courses in which

he was enrolled. After the initial refusal from the school to permit McMahon to select

either to withdraw or take an incomplete and a subsequent letter by McMahon’s attorney,

Rutgers permitted McMahon to either withdraw from his classes or receive incompletes

as required by New Jersey law. It was arranged that McMahon would reenroll in

Summer 2010 when the courses would be offered again.

       McMahon met with Dean Salmond shortly after the funeral to discuss McMahon’s

academic performance, and at that meeting McMahon signed a document in which he

acknowledged, “Any future course grade of C+ or less will constitute immediate

dismissal from the CRNA program.” (App. 143) The document also set forth the

school’s requirements for him to successfully complete the program including attendance

at time management and how to take exam classes and an offer for him to contact a

                                            4
professor, Dr. Golden, should McMahon need additional academic support such as

tutoring sessions. During this time McMahon “received negative evaluations from at

least two clinical preceptors.” (App. 145) Their written reports cited deficiencies

including “a lack of a patient-specific anesthetic care plan; late arrival; disorganization;

and improperly prepared equipment and drugs.” (Id.) As a result of these negative

reports and the concerns for patient safety, McMahon was “temporarily removed from

the clinical practicum pending a fitness evaluation.” (Id.) Based on these concerns,

shortly after McMahon had submitted his request for military leave, Dean Salmond

ordered that McMahon have a fitness evaluation. The doctor evaluating McMahon

concluded that McMahon showed no evidence of underlying psychotic symptoms.

       Due to the schedule of available classes, McMahon could not resume his studies

until summer 2010 at which time he received the two additional grades below “B”.

Although McMahon’s cumulative GPA was above a 3.0, Rutgers dismissed McMahon

from UMDNJ based on his receipt of a “C” in Pediatric Anesthesia. The dismissal letter

referenced McMahon’s June 2009 signed acknowledgement that any further “C” grades

would result in his dismissal. It also directed him to the academic appeals process.

McMahon appealed the decision to the school and the school held a hearing. McMahon

did not have counsel and could not confront witnesses or call witnesses on his behalf.

The Student Affairs Committee upheld McMahon’s grade of “C” in Pediatric Anesthesia

and concluded that pursuant to the school’s academic policies McMahon had exceeded

the permissible number of “failing” grades and, as a result, was dismissed. Dean

Salmond affirmed the Committee’s decision.

                                              5
       McMahon filed suit against Rutgers and Dean Salmond in New Jersey Superior

Court alleging both contractual and Constitutional claims. Appellees removed the case

from state to federal court. After a year of discovery, Appellees moved for summary

judgment on all claims and the District Court found in favor of Appellees on all counts.

II. Discussion

       1) Contract Claims

          a) McMahon’s Contractual Claims Against Rutgers

       The District Court concluded that under New Jersey law, courts have a limited role

in resolving academic conflicts between students and universities and that McMahon’s

argument that the 2009 policy had the ex post facto effect of binding Rutgers to the more

lenient grading policies was unconvincing. McMahon argues that New Jersey law

permits a student to bring contractual claims against a public university or, at a minimum,

quasi-contract theory applies to resolve conflicts between public universities and students

and that under these theories, Rutgers was bound to apply the more lenient grading

policies to McMahon.

       New Jersey courts have recognized certain instances where a student may bring a

viable breach-of-contract type claim against a public university. See, e.g., Mittra v. Univ.

of Med. and Dentistry of N.J., 719 A.2d 693, 696-97 (N.J. Super. Ct. App. Div. 1998).

Specifically, the New Jersey state courts have concluded “that the courts may intervene

where the institution violates in some substantial way its rules and regulations pertaining

to student dismissals.” Id. at 698 (emphasis added) (discussing the holding of Napolitano

v. Trustees of Princeton Univ., 453 A.2d 263 (N.J. Super. Ct. App. Div. 1982), the first

                                             6
reported New Jersey opinion dealing with whether contract principles should be applied

in resolving disputes involving student dismissals for academic reasons). The court in

Mittra rejected “the rigid application of contractual principles to university-student

conflicts involving academic performance and limit[ed] [the] scope of review to a

determination [of] whether the procedures followed were in accordance with the

institution’s rules and regulations.” 719 A.2d at 697.

       Thus, as the District Court also concluded we must first determine which of

UMDNJ’s rules and regulations—i.e. grading policy—were applicable to McMahon at

the time in question. Despite McMahon’s attempts to extend the earlier grading policy to

his later semesters, the only basis for this assumption is the 2009 policy which was not in

effect at the time of the 2007 PPM that McMahon seeks applied to his tenure at UMDNJ.

The 2009 Policy stated that “Standards for Satisfactory Academic Progress included in

‘Requirements for Graduation’ distributed to a student upon matriculation are applicable

for the duration of the student’s continuous matriculation . . . .” (App. 89) However,

Appellees argue that the phrase “requirements for graduation” refers to a student’s course

requirements as opposed to grade requirements and serves to effectuate “certain

regulatory requirements in order for the School to be eligible for federal financial aid

funding.” (Appellee’s Br. 183) Thus, Appellees argue that the policy refers to a

student’s course requirements to ensure that a given program will not extend the length of

the program so as to compel a student to incur additional financial aid debt as opposed to

the grades required for graduation. Even without this justification, McMahon presents no



                                              7
basis upon which to retroactively bind UMDNJ to the 2007 handbook because of the later

2009 policy.

       Not only did McMahon sign a document acknowledging that receipt of any further

“C”s would permit his immediate dismissal, but in the tape recorded conversation with

Dean Salmond, McMahon stated that he understood that he was not previously dismissed

from UMDNJ because those grades were earned under the previous grading system.

Although Dean Salmond did state that different students could have different applicable

grading policies based on when they matriculated, this does not lead a reasonable

factfinder to McMahon’s conclusion that Dean Salmond admitted that the more lenient

grading policy should have followed McMahon for years to come.

       UMDNJ’s rules and regulations, that McMahon acknowledged applied to him by

signing the document and in meeting with Dean Salmond, required that McMahon not

receive a second “C” grade. Pursuant to these rules, UMDNJ could have dismissed

McMahon after his second “C”—they did so upon receipt of his third and fourth. In sum,

McMahon does not present sufficient factual evidence that a reasonable factfinder could

rely on to conclude that UMDNJ violated its rules and regulations in some substantial

way as required by New Jersey law.2



2
  McMahon also challenges the District Court’s summary dismissal of his promissory
estoppel, good faith and fair dealing, and unjust enrichment claims. However, as
previously stated judicial review in this area is limited and under New Jersey law, rigid
contract principles are not applied. See Mittra, 719 A.2d at 697. Moreover, McMahon
fails to demonstrate any clear and definite promise to support a claim for promissory
estoppel, any underlying contract for the application of good faith and fair dealing claims,
and any quasi-contract liability basis for a claim of unjust enrichment.
                                             8
       2) Due Process Claim

       McMahon claims that he has a property interest protected by the Due Process

Clause in continuing his graduate education at a public institution and that “due process

required that his education in the masters degree CRNA program not be terminated for

arbitrary reasons.” (Appellant’s Br. at 46, 47)

       In Board of Curators, University of Missouri v. Horowitz, 435 U.S. 78, 91–92

(1978), the Supreme Court assumed that a property right existed without deciding

whether there is in fact such a right, and held that federal courts can review an academic

decision of a public educational institution under a substantive due process standard.

Similarly, in Regents of University of Michigan v. Ewing, 474 U.S. 214, 222-25 (1985),

the Court noted “Justice Brandeis’ admonition not to ‘formulate a rule of constitutional

law broader than is required by the precise facts to which it is to be applied,” and again

assumed, as it did in Horowitz, the existence of a constitutionally protectible property

right in the student’s continued enrollment in a dual degree program. Id. at 222 (citing

Ashwander v. TVA, 297 U.S. 288, 347 (1936) (concurring opinion)).

       Similar to Ewing and Horowitz, we may presume that McMahon had a property

interest in his continuing in the graduate program at UMDNJ. Therefore, we then turn to

whether UMDNJ arbitrarily dismissed McMahon. When judges are asked to

substantively review a “‘genuinely academic decision, . . . 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.’” Mauriello v.

                                             9
Univ. of Med. & Dentistry of N.J., 781 F.2d 46, 50 (3d Cir. 1986) (quoting Ewing, 474

U.S. at 225)). In Mauriello, the plaintiff was informed of her academic deficiencies,

given an opportunity to rectify them during a probationary period, and was allowed to

present her grievance to the graduate committee. This court concluded that as a matter of

law the plaintiff had received all the due process to which she was entitled. 781 F.2d at

52.

       There is no difficulty in deciding in this case that McMahon’s dismissal was based

on academic grounds and not due to other non-academic disciplinary grounds. Following

Mauriello, we must conclude that McMahon received all the process to which he was

entitled. UMDNJ notified McMahon of his grades below a “C,” he received written

warnings that any further grades below a “C” could result in dismissal, and he signed a

statement acknowledging that warning. Moreover, he was provided the opportunity to

retake the classes in which he received his first two grades below a “B” and the

opportunity to appeal each grade to the Student Affairs Committee.

       Additionally, there is no evidence in the record that UMDNJ terminated

McMahon’s enrollment for arbitrary reasons. The District Court correctly concluded that

the record demonstrates that McMahon was dismissed for his academic performance, i.e.

multiple “C” grades. Therefore, even assuming that McMahon has a property interest in

continuing his graduate education at a public institution, the Appellees committed no due

process violation.




                                            10
       3) Armed Forces Discrimination Claims

       McMahon alleges discrimination due to his membership in the U.S. Air Force and

retaliation based on the same in violation of the New Jersey Law Against Discrimination

(“LAD”). The LAD makes it unlawful for any person to refuse to provide goods,

services, or information to a person on the basis of their service in the U.S. Armed

Forces. § 10:5-12(l). When analyzing cases under the NJ LAD, New Jersey and federal

courts look to the closest analogous federal statute and adopt its evidentiary framework.

See Grigoletti v. Ortho Pharm. Corp., 570 A.2d 903, 906–07 (N.J. 1990).        The federal

statutory analogue to McMahon’s NJ LAD claim is the Uniformed Services Employment

and Reemployment Rights Act (“USERRA”). Accordingly, the parties did not dispute

the application of the Sheehan v. Department of Navy, 240 F.3d 1009 (Fed. Cir. 2001),

framework to McMahon’s claim. To establish a claim under the USERRA, the plaintiff

has the initial burden of production to show that, by a preponderance of the evidence,

“the employee’s military service was ‘a substantial or motivating factor’” in the adverse

employment decision. Sheehan, 240 F.3d at 1013 (quoting NLRB v. Transp. Mgmt.

Corp., 462 U.S. 393, 400-01 (1983)).

       Here, McMahon cannot meet the first step of the Sheehan framework because

there are not sufficient facts in the record to conclude that any discrimination or

retaliation occurred based on McMahon’s military status.3 McMahon cites to the



3
  The District Court assumed arguendo that in this case McMahon had met his burden to
show that his military status was a “substantial and motivating factor” in his dismissal
from the CRNA program, but concluded that Appellees met their burdens of production
                                             11
school’s initial refusal to permit him to select either to withdraw or take an incomplete

for the courses he was enrolled in at the time of his request, and the fact that UMDNJ

required that he submit to a fitness evaluation two days after submitting his request for

military leave. UMDNJ ultimately permitted McMahon to receive withdraws or

incompletes on his record as required under the law and the school’s “balking” at his

initial request does not rise to the level of discrimination under Sheehan. Additionally, it

is clear from the record that the school received reports of McMahon’s poor clinic

performance in regard to patient safety and he was ordered suspended from clinic until

completion of a fitness evaluation. McMahon does not point to any evidence in the

record aside from the closeness in dates between his request for military leave and the

requirement of a fitness evaluation, to demonstrate that his military association had any

bearing on Dean Salmond’s requiring him to submit to a fitness evaluation. Thus, his

claim under the NJ LAD must fail.

       McMahon also brings a retaliation claim under the LAD which must similarly fail.

McMahon cites to no record evidence that he was dismissed from the CRNA program as

a reprisal against him on the basis of his service in the armed forces. Although

McMahon cites to his complaint about Professor Pallaria, who allegedly made

discriminatory statements about older and obese people, and the school’s failure to

address his complaint, these do not relate to his service in the military. Even if Pallaria

had retaliated against McMahon for McMahon’s filing a complaint against Pallaria,


and persuasion by demonstrating that McMahon’s dismissal was based on grades. We
see no reason to assume that McMahon has met his burden.
                                             12
McMahon alleges a retaliation claim based on his service in the Armed Forces. Although

in his brief before this court McMahon alleges that “[t]his is a separate and distinct claim,

as specifically pled in the complaint” irrespective of his membership in the Armed

Forces, McMahon provides no citation to his complaint or where this was alleged. The

District Court concluded that McMahon did not plead an appropriate retaliation cause of

action and that it “would not read his opposition papers to do so” at summary judgment.

(App. 25 (citing Bell v. City of Phila., 275 F. App’x 157, 160 (3d Cir. 2008) (“A plaintiff

may not amend his complaint through arguments in his brief in opposition to a motion for

summary judgment.”))). McMahon provides no basis in the record or in case law upon

which to reverse the District Court’s decision.

                                      III. Conclusion

       For the foregoing reasons, we will affirm the District Court’s grant of Appellees’

motion for summary judgment.




                                             13
