                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 15-1572


STEPHANIE ZIMMECK,

                Plaintiff - Appellant,

          v.

MARSHALL UNIVERSITY BOARD OF GOVERNORS, d/b/a Marshall
University, Joan C. Edwards School of Medicine; AARON
MCGUFFIN, individually and as Senior Associate Dean for
Student Affairs; TRACY LEGROW, individually and as Assistant
Dean for Academic Affairs; ROBERT C. NERHOOD, individually
and as Interim Dean of Marshall University School of
Medicine; MARIA VEITIA, individually and as Associate Dean
for Student Affairs, inclusive,

                Defendants – Appellees,

          and

JOSEPH L. SHAPIRO, individually and as Dean of the Marshall
University School of Medicine,

                Defendant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.  Robert C. Chambers,
Chief District Judge. (3:13-cv-14743)


Submitted:   November 24, 2015             Decided:   December 11, 2015


Before WILKINSON, WYNN, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.
Jason J. Bach, THE BACH LAW FIRM, LLC, Las Vegas, Nevada, for
Appellant.     Cheryl Lynne Connelly, CAMPBELL WOODS, PLLC,
Huntington, West Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

      Stephanie       Zimmeck       appeals        the    district     court’s   order

dismissing her due process claims * and granting summary judgment

to   the   Marshall       University     Board       of   Governors.       Finding    no

error, we affirm the district court’s orders.

                                           I.

      We review de novo a district court’s dismissal of an action

under Fed. R. Civ. P. 12(b)(6), accepting factual allegations in

the complaint as true and drawing all reasonable inferences in

favor of the nonmoving party.                 Kensington Volunteer Fire Dep’t

v. Montgomery Cty., 684 F.3d 462, 467 (4th Cir. 2012).                                To

survive     a     motion       to   dismiss,        the      complaint’s    “[f]actual

allegations must be enough to raise a right to relief above the

speculative level” and sufficient “to state a claim to relief

that is plausible on its face.”                   Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555, 570 (2007).

      Zimmeck     alleged       that    the       Marshall    University    School    of

Medicine (“MUSOM”) dismissed her as a student in its program, in

violation of procedural and substantive due process pursuant to

42 U.S.C. § 1983 (2012).               Under the Fourteenth Amendment, “[n]o

State     shall   .   .    .   deprive    any      person     of   life,   liberty,   or



      *Zimmeck brought these claims against Aaron McGuffin, Tracy
LeGrow, Robert C. Nerhood, and Maria Veitia.



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property, without due process of law . . . .”                              U.S. Const.

amend. XIV, § 1.       Generally, a due process claim requires a two-

part   analysis:       “whether      [the       plaintiff]      was   deprived     of    a

protected interest, and, if so, what process was . . . due.”

Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982).

       Assuming,      without     deciding,            that    Zimmeck      alleged      a

protected liberty or property interest, we conclude that she

failed to allege a viable due process claim.                          MUSOM dismissed

Zimmeck for academic reasons, and, thus, less process was due

than if she had been dismissed for disciplinary reasons.                          Bd. of

Curators   of   the    Univ.    of    Mo.       v.    Horowitz,   435      U.S.   78,    86

(1978).     MUSOM placed Zimmeck on academic probation, notified

her that further violations of its professionalism policy could

result in dismissal, and dismissed her after she was notified of

a hearing and participated in the appeals process.                              Thus, we

conclude that Zimmeck’s dismissal satisfied the requirements of

procedural due process.

       Similarly,     we   conclude    that          Zimmeck   failed      to   allege   a

substantive due process claim.                   A court may only override a

school’s    academic       decision     if       “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.”         Regents of Univ. of Mich. v. Ewing, 474

U.S. 214, 225 (1985).           Courts should defer to “the faculty’s

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professional judgment.”           Id. & n.11.             Zimmeck’s own allegations

demonstrate that MUSOM dismissed her only after school officials

received several reports of unprofessional conduct.                              Further,

Zimmeck admits that the events considered by MUSOM did in fact

occur.      Accordingly,         we    affirm       the    district      court’s       order

dismissing Zimmeck’s due process claims.

                                             II.

     We “review[] de novo [a] district court’s order granting

summary judgment.”          Jacobs v. N.C. Admin. Office of the Courts,

780 F.3d 562, 565 n.1 (4th Cir. 2015).                     “A district court ‘shall

grant summary judgment if the movant shows that there is no

genuine   dispute     as    to    any       material      fact    and    the    movant    is

entitled to judgment as a matter of law.’”                        Id. at 568 (quoting

Fed. R. Civ. P. 56(a)).               In determining whether a genuine issue

of material fact exists, “we view the facts and all justifiable

inferences    arising       therefrom        in    the    light   most       favorable    to

. . . the nonmoving party.”                 Id. at 565 n.1 (internal quotation

marks     omitted).           However,            “[c]onclusory         or     speculative

allegations     do    not    suffice,         nor    does    a    mere       scintilla    of

evidence in support of [the nonmoving party’s] case.”                            Thompson

v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002)

(internal quotation marks omitted).

     Zimmeck argues that the district court erred in granting

summary      judgment       on        her     retaliation         claim        under     the

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Rehabilitation Act of 1973 (RA), 29 U.S.C.A. §§ 701 to 796l

(West 2008 & Supp. 2015), and the Americans with Disabilities

Act (ADA), 42 U.S.C. §§ 12101 to 12213 (2012).                         In order to

establish a prima facie retaliation claim under the ADA and RA,

a plaintiff must establish that (1) she engaged in a protected

activity, (2) the defendant took an adverse action against her

after she engaged in the protected activity, and (3) there was a

causal connection between the two.                Freilich v. Upper Chesapeake

Health, Inc., 313 F.3d 205, 216 (4th Cir. 2002); Hooven-Lewis v.

Caldera, 249 F.3d 259, 272 (4th Cir. 2001).

       As the district court found, Zimmeck failed to establish a

genuine dispute of material fact regarding whether there was a

causal     connection       between       any    protected       activity    and    her

dismissal from MUSOM.           Zimmeck argues on appeal only that there

was     close   temporal       proximity        between    her     request    for    an

accommodation and her dismissal from MUSOM.                        However, Zimmeck

admits    she   did    not    request      an    accommodation       concerning     her

mental health issues until after the initial decision to dismiss

her.     See Price v. Thompson, 380 F.3d 209, 213 (4th Cir. 2004)

(“[A] causal connection for purposes of demonstrating a prima

facie    case   exists        where   the       employer     takes    [an]    adverse

employment action . . . shortly after learning of the protected

activity.”), abrogated on other grounds by Foster v. Univ. of

Md.-E.    Shore,      787    F.3d   243    (4th    Cir.    2015).      Because      the

                                            6
asserted   adverse       action     occurred        before    Zimmeck       requested     an

accommodation, we conclude she failed to establish her prima

facie case.

     Zimmeck      also     argues       that       the    district     court     erred    in

granting summary judgment on her disability discrimination claim

under the RA and the ADA.                To establish a claim of disability

discrimination, Zimmeck was required to show “that (1) she has a

disability,      (2)   she    is    otherwise            qualified     to    receive     the

benefits of a public service, program, or activity, and (3) she

was excluded from participation in or denied the benefits of

such service, program, or activity, or otherwise discriminated

against,   on    the     basis     of    her       disability.”         Constantine       v.

Rectors & Visitors of George Mason Univ., 411 F.3d 474, 498 (4th

Cir. 2005); see Class v. Towson Univ., __ F.3d __, __, 2015 WL

7074636, at *6 & n.2 (4th Cir. Nov. 13, 2015) (No. 15-1811)

(comparing      elements     of    RA    and       ADA    claims).          “A   qualified

individual is one who, with or without reasonable modifications

to   rules,      policies,         or    practices,          meets      the      essential

eligibility      requirements       for    participation          in    a     program    or

activity.”      Halpern v. Wake Forest Univ. Health Scis., 669 F.3d

454, 462 (4th Cir. 2012) (alterations and internal quotation

marks omitted); see Class, 2015 WL 7074636, at *8.

     We conclude that the district court properly relied on our

decision in Halpern in granting summary judgment to MUSOM.                                As

                                               7
in   Halpern,       Zimmeck    engaged        in    a    substantial           amount       of

unprofessional conduct before providing MUSOM with notice of her

disabilities or proposing any accommodations.                        See 669 F.3d at

457-59.    MUSOM repeatedly warned Zimmeck that further misconduct

could   result      in    disciplinary    sanctions           up    to   and      including

dismissal.    Zimmeck did not suggest any reasonable accommodation

until after MUSOM’s initial decision to dismiss her; she “sought

not a disability accommodation, but a second chance to better

control    [her]      treatable       medical      condition.”              Id.      at     465

(internal quotation marks omitted).                MUSOM gave Zimmeck numerous

chances to control her behavior or seek a formal accommodation,

but she failed to avail herself of this opportunity.                               See id.

(“[T]he law does not require the school to ignore misconduct

that has occurred because the student subsequently asserts it

was the result of a disability.”).                 Thus, the district court did

not err in granting summary judgment to the Defendant.

                                        III.

     Accordingly, we affirm the district court’s orders.                                    We

dispense     with     oral    argument     because           the    facts      and        legal

contentions     are      adequately    presented        in    the    materials        before

this court and argument would not aid the decisional process.



                                                                                   AFFIRMED



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