                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               December 23, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                          FOR THE TENTH CIRCUIT


 JANE DOE,

              Plaintiff-Appellant,

 v.                                                    No. 10-6020
                                                (D.C. No. 5:08-CV-00477-R)
 OKLAHOMA CITY UNIVERSITY;                             (W.D. Okla.)
 OKLAHOMA CITY UNIVERSITY
 SCHOOL OF LAW; OKLAHOMA
 CITY UNIVERSITY BOARD OF
 TRUSTEES,

              Defendants-Appellees.


                                      ORDER


Before TACHA, LUCERO, and MURPHY, Circuit Judges.



      This matter is before the court on Appellant’s Petition for Rehearing En

Banc and Emergency Motion to Seal Entire Record on Appeal. To the extent

Appellant seeks panel rehearing, that request is DENIED. The petition for

rehearing en banc was transmitted to all of the judges of the court who are in

regular active service. As no member of the panel and no judge in regular active

service requested that the court be polled, Appellant’s petition for rehearing en

banc is also DENIED.
       Appellant’s motion to seal the record on appeal is GRANTED in part and

DENIED in part, as follows. Everything that has been filed in this appeal shall be

sealed, with the exception of our order and judgment, dated November 2, 2010.

We have, however, revised that order and judgment in order to protect

Appellant’s identity. The original order and judgment filed November 2, 2010, is

withdrawn. The revised order and judgment, filed nunc pro tunc to the original

filing date, is attached.

                                      Entered for the Court




                                      ELISABETH A. SHUMAKER, Clerk




                                        -2-
                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                November 2, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    JANE DOE,

                Plaintiff-Appellant,

    v.                                                  No. 10-6020
                                                 (D.C. No. 5:08-CV-00477-R)
    OKLAHOMA CITY UNIVERSITY;                           (W.D. Okla.)
    OKLAHOMA CITY UNIVERSITY
    SCHOOL OF LAW; OKLAHOMA
    CITY UNIVERSITY BOARD OF
    TRUSTEES,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before TACHA, LUCERO, and MURPHY, Circuit Judges.



         Jane Doe appeals pro se from a district court order granting summary

judgment in favor of defendants Oklahoma City University (OCU), OCU Law

School, and the OCU Board of Trustees on her claims stemming from alleged



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
discrimination based on learning disabilities. Ms. Doe also challenges an order

that denied her motion for sanctions against the defendants for alleged spoliation

of evidence. We exercise our jurisdiction under 28 U.S.C. § 1291 to affirm.

                                  I. Background

      The relevant factual background as well as the procedural history of this

case is amply set forth in the district court’s comprehensive order of dismissal

and need not be repeated at length here. Suffice it to say, Ms. Doe has been

diagnosed with a number of learning disabilities, including attention deficit

hyperactivity disorder and dyslexia. Twice she has been dismissed as a student

from OCU Law School after failing to maintain the required minimum grade point

average of 4.5 on a 12-point scale. In April 2008, she filed this action, alleging

that her second dismissal from OCU Law School, after the Fall 2005 semester,

was the result of discrimination based on her learning disabilities. Ms. Doe’s

complaint stated claims under Title III of the Americans with Disabilities Act

(ADA), 42 U.S.C. § 12182(a); section 504 of the Rehabilitation Act, 29 U.S.C.

§ 794(a); and included several state law claims, including breach of contract,

negligence, and a “Burk tort claim” 1 for alleged violations of the Oklahoma


1
      In Burk v. K-Mart Corp., 770 P.2d 24, 29 (Okla. 1989), the Oklahoma
Supreme Court created a narrow exception to the employment-at-will doctrine,
holding that “an employee [who] is discharged for refusing to act in violation of
an established and well-defined public policy or for performing an act consistent
with a clear and compelling public policy” may bring a tort claim for wrongful
discharge.

                                         -2-
Anti-Discrimination Act, Okla. Stat. tit. 25, § 1101 et seq. The district court

granted summary judgment, concluding that Ms. Doe failed to present a genuine

issue of material fact as to both her state law claims and her claim that OCU Law

School acted intentionally or with deliberate indifference to a federally protected

right.

         During discovery, Ms. Doe had asked the defendants to produce copies of

other students’ written exams from the Fall 2005 semester Legal Profession

course in order to show that her own exam was scored unfairly. The district court

ordered OCU Law School to produce the requested exams. The exams, however,

had been destroyed years earlier in accordance with OCU Law School’s general

practice of discarding all undisputed exams after one year. Ms. Doe then filed a

motion asking the district court to sanction the defendants for destroying relevant

evidence. She requested entry of judgment against the defendants, or, at a

minimum, an adverse-inference instruction to the jury.

         On January 22, 2010, the district court entered its summary judgment ruling

as well as its order denying Ms. Doe’s motion for sanctions. This appeal

followed.




                                          -3-
                                   II. Discussion

      A. Summary Judgment

      We review de novo a district court’s grant of summary judgment under

Federal Rule of Civil Procedure 56(c). Duvall v. Georgia-Pacific Consumer

Prods. L.P., 607 F.3d 1255, 1259 (10th Cir. 2010). In doing so, we apply the

same standard as the district court and “must affirm if the record reveals no

genuine issue of material fact and if the moving party . . . is entitled to judgment

as a matter of law.” Id. “The mere existence of some alleged factual dispute

between the parties will not defeat an otherwise properly supported motion for

summary judgment; the requirement is that there be no genuine issue of material

fact.” Barber ex rel. Barber v. Colo. Dep’t of Revenue, 562 F.3d 1222, 1228

(10th Cir. 2009) (internal quotation marks and brackets omitted). In applying

Rule 56, “we examine the record and all reasonable inferences that might be

drawn from it in the light most favorable to the non-moving party[,]” in this case

Ms. Doe. Id. (internal quotation marks omitted).

             1.    ADA and Rehabilitation Act Claims

      “Title III of the ADA prohibits discrimination against persons with

disabilities in places of public accommodation.” Colorado Cross Disability

Coalition v. Hermanson Family Ltd. P’ship I, 264 F.3d 999, 1001 (10th Cir.

2001). “Discrimination under Title III specifically includes the failure to make

reasonable modifications in policies, practices, or procedure to accommodate a

                                         -4-
disabled individual, unless the entity can demonstrate that making such

modifications would fundamentally alter the nature of the services.” Mershon v.

St. Louis Univ., 442 F.3d 1069, 1076 (8th Cir. 2006) (citing 42 U.S.C.

§ 12182(b)(2)(A)(ii)). “Likewise, the Rehabilitation Act requires reasonable

accommodations when an ‘otherwise qualified’ disabled student would otherwise

be denied meaningful access to a university.” Id. (internal quotation marks and

citation omitted). Neither Title III of the ADA nor the Rehabilitation Act require

a graduate school to admit “a disabled student who cannot, with reasonable

accommodations, otherwise meet the academic standards of the program.” Id.

             Thus, in the higher education context, a person alleging a
      failure to accommodate under Title III or the Rehabilitation Act must
      show (1) that the plaintiff is disabled and otherwise qualified
      academically, (2) that the defendant is a private entity that owns,
      leases or operates a place of public accommodation (for ADA
      purposes) and receives federal funding (for Rehabilitation Act
      purposes), and (3) that the defendant failed to make reasonable
      modifications that would accommodate the plaintiff’s disability
      without fundamentally altering the nature of the public
      accommodation[.]

Id. (internal quotation marks omitted).

      There is no dispute in this case that OCU Law School made efforts to

accommodate Ms. Doe’s learning disabilities. The school provided her with a

separate, quiet environment in which to take exams and gave her twice as much

time as other students to complete her exams. It is also undisputed, however, that

due to a glitch in the software used to administer computer-written exams


                                          -5-
(ExamSoft), the duration of exams taken in the 2005 Fall semester was

inadvertently noted on each student’s exam cover sheet. 2 Consequently, although

exams were graded anonymously–each student was assigned a three-digit

number–because Ms. Doe’s extra time was disclosed, theoretically a professor

grading her exam would know, at a minimum, that the exam was accommodated.

      Ms. Doe argues that her extra time “stood out like a sore thumb” on her

exam cover sheets, R. Vol. 1 at 161, and she asserts by affidavit that at least one

professor, Carla Spivack (a first-year legal profession teacher), used the

disclosure of extra time to identify her 2005 Fall semester exam. In her affidavit,

Ms. Doe accuses Professor Spivack of grading her exam “differently than [those

of] any other student.” Id. She also claims that Professor Spivack “made an error

in the calculation of checks that [she] was awarded,” which resulted in her

receiving a D grade instead of a C-. Id. at 161-62. After the 2005 Fall semester,

Ms. Doe was dismissed from OCU Law School due to her failure to maintain the

minimum grade point average. She claims that a C- grade in Professor Spivack’s

class would have placed her “in good academic standing.” Id. at 162.

      Thus, although Ms. Doe was granted an accommodation, her theory of

discrimination appears to be that the accommodation was effectively negated by




2
      Like many students, Ms. Doe opted to take her exams on a laptop computer
using ExamSoft, as opposed to writing them in a traditional blue book.

                                         -6-
Professor Spivack’s unfair grading. 3 She emphasizes a comment allegedly made

by Professor Spivack when the two met to discuss Ms. Doe’s grade. According to

Ms. Doe, “[a]fter acknowledging that she had made an error in the calculation of

checks that [Ms. Doe] was awarded, [Professor Spivack] stated that any error she

made would not change [Ms. Doe’s] grade because [she] received extra time.” Id.

at 161-62. Professor Spivack allegedly told her, “‘[y]ou do not belong in law

school since you cannot even do well when given extra time.’” Id. at 162.

      In ruling on the defendants’ summary judgment motion, the district court

first held that in order to prevail, Ms. Doe would have to prove intentional

discrimination as to both her ADA and Rehabilitation Act claims. The district

court was correct with respect to the Rehabilitation Act; a claim under § 504

requires proof of intentional discrimination. See Powers v. MJB Acquisition

Corp., 184 F.3d 1147, 1153 (10th Cir. 1999) (adopting intentional discrimination

standard and holding that it can be “inferred from a defendant’s deliberate

indifference to the strong likelihood that pursuit of its questioned policies will

likely result in a violation of federally protected rights”). A claim for injunctive

relief under Title III of the ADA, however, is not dependent upon a showing of

discriminatory intent. See Lentini v. Cal. Ctr. for the Arts, 370 F.3d 837, 846


3
       Ms. Doe does not articulate her theory as such, but as all of her pleadings
in the district court and this court were filed pro se, they are entitled to a
solicitous construction. Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th
Cir. 2007).

                                         -7-
(9th Cir. 2004) (“It is undisputed that a plaintiff need not show intentional

discrimination in order to make out a violation of [Title III of] the ADA.”); cf

Chaffin v. Kan. State Fair Bd., 348 F.3d 850, 858 (10th Cir. 2003) (noting, in

case under Title II, that “in enacting the ADA . . . Congress prohibited a broad,

comprehensive concept of discrimination, beyond discrimination motivated by

hostile discriminatory purpose”). The district court’s statement that a showing of

wrongful intent is required under Title III of the ADA was therefore incorrect.

      We conclude that the error was harmless, however, because Ms. Doe’s

ADA claim is not based on disparate treatment or any other theory of

unintentional discrimination. Rather, Ms. Doe claims that Professor Spivack

purposefully discriminated against her because she had extra time to complete her

exam. But even if a fact finder were to credit Ms. Doe’s testimony on this issue,

there is no evidence that her dismissal from OCU Law School was discriminatory.

The law school warned her after the Fall 2004 semester that she was not in

academic good standing. After the Spring 2005 semester, Ms. Doe was placed on

academic probation and warned that she would be dismissed if she did not raise

her GPA to 4.5. When she failed to do so, the law school followed through with

the dismissal. Thus, it is misleading for Ms. Doe to argue that she was dismissed

because of her poor grade in Professor Spivack’s class. Furthermore, Professor

Spivack maintains that Ms. Doe’s exam was a D, even correcting for her

checkmark miscalculation, because “Ms. Doe did not discuss the same relevant

                                         -8-
material as did examinees with higher grades.” R. Doc. 37, Ex. 23. This opinion

from a university faculty member concerning her student’s academic performance

is entitled to great deference. Regents of Univ. of Mich. v. Ewing, 474 U.S. 214,

225 (1985). In sum, all of the evidence of record, viewed in the light most

favorable to Ms. Doe, supports OCU Law School’s position that it dismissed

Ms. Doe solely because of her poor academic performance. We therefore agree

with the district court that Ms. Doe’s evidence does not create a fact issue as to

whether she was discriminated against because of her disability.

             2.    State Law Claims

      The district court dismissed Ms. Doe’s Burk tort claim under Oklahoma’s

Anti-Discrimination Act as a matter of law, explaining that Burk “only applies to

wrongful employment terminations.” R. Vol. 1 at 364 (citing Clinton v. State ex

rel Logan Cty. Elec. Bd., 29 P.3d 543, 547 (Okla. 2001) (overruled on other

grounds)). It concluded that her breach of contract claim must also fail because

OCU Law School’s student handbook, upon which the claim was based, plainly

stated that it did not form a contract between the students and the university. And

even if it did, the district court concluded there was insufficient evidence “from

which reasonable jurors could find a material breach of that contract so as to

create a genuine issue of material fact.” R. Vol. 1 at 366. The district court

likewise found insufficient evidence to withstand summary judgment as to the

promissory estoppel and negligence claims. The court explained that an essential

                                         -9-
element of promissory estoppel is detrimental reliance, and it found no evidence

that Ms. Doe relied on implied promises concerning the defendants’ grading

policies in deciding to attend OCU Law School. Ms. Doe’s negligence claim was

predicated on the defendants’ alleged failure to properly train university faculty

members with respect to their obligations to disabled students under Title III of

the ADA. Because it concluded that Ms. Doe had failed to show discrimination in

violation of the ADA, the district court determined that her negligence claim must

also fail for lack of damages.

      We affirm the dismissal of Ms. Doe’s state law claims for substantially the

same reasons given by the district court in its order of January 22, 2010.

      B. Sanctions Motion

      We also affirm the district court’s decision on sanctions. A trial court’s

refusal to grant sanctions for spoliation of evidence is reviewed for abuse of

discretion. 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 989 (10th Cir.

2006). To win her sanctions motion, Ms. Doe was required to show that the

defendants had a duty to preserve the evidence because they knew, or should have

known, that litigation was imminent. Id. In this case, it appears that at the time

OCU Law School discarded the Fall 2005 exams, Ms. Doe had initiated a state

action against the defendants premised on an allegation that OCU Law School

breached the grade appeal procedure set forth in its student handbook. That

separate lawsuit, however, did not include any allegations or claims of

                                         -10-
discrimination, and consequently, it did not put the defendants on notice that

discrimination claims were forthcoming. Under these circumstances, the district

court did not abuse its discretion in concluding that sanctions were not

appropriate.

      Ms. Doe’s motion to proceed in forma pauperis is GRANTED and the

judgment of the district court is AFFIRMED.


                                                    Entered for the Court



                                                    Deanell R. Tacha
                                                    Circuit Judge




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