UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-1743

DAVID DER SARKISSIAN, 

 Plaintiff - Appellant, 

 v. 

WEST VIRGINIA UNIVERSITY BOARD OF GOVERNORS, d/b/a West 

Virginia University School of Medicine; SHELLEY NUSS, 

Program Director, Internal Medicine, 

 Defendants - Appellees. 

Appeal from the United States District Court for the Northern 

District of West Virginia, at Clarksburg. Frederick P. 

Stamp, Jr., Senior District Judge. (1:05-cv-00144-FPS-JSK) 

Argued: May 13, 2009 Decided: May 28, 2009 

Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

ARGUED: Matthew Henry Simmons, SIMMONS & ASSOCIATES, CHARTERED, 

Bethesda, Maryland, for Appellant. James Robert Russell, 

SHUMAN, MCCUSKEY & SLICER, PLLC, Morgantown, West Virginia, for 

Appellees. ON BRIEF: Seann P. Malloy, SIMMONS & ASSOCIATES, 

CHARTERED, Bethesda, Maryland; Travis Fitzwater, LAW OFFICE OF 

TRAVIS FITZWATER, Morgantown, West Virginia, for Appellant.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM: 

 Dr. David Der Sarkissian appeals from a judgment entered 

following a bench trial on claims arising out of his termination 

from a medical residence program at West Virginia University 

School of Medicine (WVU). Because Dr. Der Sarkissian has failed 

to demonstrate that the district court erred in finding that 

neither WVU nor Dr. Michelle Nuss, the Internal Medicine 

Residency Director at WVU, violated his constitutional or 

statutory rights, we affirm. 

I. 

Dr. Der Sarkissian began his residency in internal medicine 

at WVU in the summer of 2004. By the middle of October, three 

women had reported to Dr. Nuss that Dr. Der Sarkissian acted 

inappropriately toward them. 

In written statements, Dr. Angela MacKay, the chief 

resident for the WVU residency program, Dr. Susanne Choby, a 

senior resident, and Melany Atkins, a medical student at WVU at 

the time, reported that, among other things, Dr. Der Sarkissian 

paged them regarding non-work-related matters and gave them 

personal notes. Melany Atkins also reported that Dr. Der 

Sarkissian made inappropriate comments about her dress, hair, 

make-up, and smile and wrote her a personal letter that he hoped 

to discuss after she told him she had no interest in any such 

2 
discussions. Another resident reported to Dr. Nuss that Dr. Der 

Sarkissian stared at Melany Atkins and intentionally brushed and 

rubbed up against her during rounds, creating an uncomfortable 

situation for other students. 

 In response to these reports and after consulting with two 

of her supervisors, on October 19, 2004, Dr. Nuss met with Dr. 

Der Sarkissian. She informed him that she had credible evidence 

that he had sexually harassed several women in the residency 

program and administratively suspended him. Dr. Nuss then 

presented the reports of the three women to the Social Justice 

Office (“SJO”) at WVU, which handles sexual harassment 

complaints. 

Two days later, on October 21, Dr. Nuss and Dr. Ann Chester 

from the SJO met with Dr. Der Sarkissian and provided him copies 

of the reports of the three women. Although Dr. Der Sarkissian 

testified otherwise, the district court found that Drs. Nuss and 

Chester informed him of his right to respond to the allegations 

in writing, but that Dr. Der Sarkissian chose to respond orally 

at the meeting. In the course of doing so, Dr. Der Sarkissian 

admitted to engaging in much of the behavior described in the 

reports. 

After the conclusion of that meeting, Dr. Nuss ended Dr. 

Der Sarkissian’s administrative suspension, but Dr. Chester 

issued a report finding Dr. Der Sarkissian in violation of WVU’s 

3 
sexual harassment policy. Shortly thereafter, Dr. Nuss informed 

Dr. Der Sarkissian that he would be on probation for four months 

because of his unprofessional behavior. During that four-month 

period he was to receive counseling and not repeat the behavior 

that led to the probation. 

 In early February, 2005, as the result of a finding by the 

clinical competence committee that Dr. Der Sarkissian had poorly 

performed in his clinical rotations, Dr. Nuss placed Dr. Der 

Sarkissian on probation for the remainder of the academic year. 

(This performance probation was unrelated to the previous fourmonth probation.) When Dr. Der Sarkissian asked Dr. Nuss for an 

opportunity to improve his performance because he had just begun 

treatment for his recently diagnosed attention deficit 

hyperactivity disorder (ADHD) and anxiety disorder, Dr. Nuss 

responded that WVU would renew his contract at the end of the 

year if he met certain performance criteria. 

 On February 14, while Dr. Der Sarkissian was still on the 

original four-month probation, Dr. Nuss learned that Dr. Der 

Sarkissian had delivered a diamond necklace to Melany Atkins 

through a third party. Two days later Drs. Nuss and Chester met 

with Dr. Der Sarkissian; at that time he admitted to delivering 

the necklace. Dr. Chester informed Dr. Der Sarkissian that he 

had violated the terms of his four-month probation. The next 

4 
day Dr. Nuss informed Dr. Der Sarkissian in writing that WVU had 

terminated his appointment due to that violation. 

After pursuing a grievance with WVU, Dr. Der Sarkissian 

filed this action in federal court against WVU and Dr. Nuss. In 

a thorough written opinion, the district court granted judgment 

on partial findings, pursuant to Fed. R. Civ. P. 52(c), to WVU 

and Dr. Nuss with respect to certain claims. After a five-day 

bench trial, the court, in another thorough written opinion, 

granted judgment to the university and Dr. Nuss on all remaining 

claims. 

II. 

 On appeal, Dr. Der Sarkissian contests the adverse judgment 

only with respect to his claims that (1) Dr. Nuss denied him his 

constitutional due process rights when she terminated him from 

the residency program without adequate procedure, (2) WVU and 

Dr. Nuss discriminated against him because of his ADHD diagnosis 

in violation of the Americans with Disabilities Act of 1990 

(ADA), 42 U.S.C. § 12132 (2006), and (3) WVU and Dr. Nuss 

retaliated against him because of his request for an 

accommodation in violation of the ADA, id. § 12203. 

We have carefully considered the record, briefs, applicable 

law, and oral arguments of the parties and are persuaded that 

the district court did not err in granting judgment to WVU and 

5 
6 

Dr. Nuss. Record evidence adequately supports the district 

court’s finding that Dr. Nuss provided Dr. Der Sarkissian, prior 

to termination, all of the process required under the 

Constitution. Moreover, Dr. Der Sarkissian has failed to 

demonstrate that the district court erred in finding that: (1) 

he has no disability protected by the ADA and that (2) neither 

WVU nor Dr. Nuss retaliated against him for requesting an 

accommodation for any asserted disability. 

Accordingly, we affirm on the reasoning of the district 

court. See Der Sarkissian v. W. Va. Univ. Bd. of Governors, No. 

1:05-cv-00144-FPS-JSK, 2008 WL 901722 (N.D. W. Va. Mar. 31, 

2008) (decision on the motion of WVU and Dr. Nuss for judgment 

on partial findings); Der Sarkissian v. W. Va. Univ. Bd. of 

Governors, No. 1:05-cv-00144-FPS-JSK, slip op. (N.D. W. Va. Mar. 

31, 2008) (findings of fact and conclusions of law following the 

bench trial). 

III. 

For these reasons, the judgment of the district court is 

AFFIRMED.