# United States Court of Appeals **for the Fifth Circuit**

____________ No. 23-20462 Summary Calendar

____________ Valerie Reiss, Plaintiff—Appellant ,

versus Texas A&M University; Doctor John L. Junkins, Defendants—Appellees

.

______________________________ Appeal from the United States District Court for the Southern District of Texas USDC No. 4:21-CV-263

______________________________ Before Jones, Smith, and Dennis, Circuit Judges

. Per Curiam: * Plaintiff-Appellant Valerie Reiss contends that Defendants-Appellees Texas A&M University and Mark Welsh III 1 (collectively “TAMU”)

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* This opinion is not designated for publication. See 5th Cir. R. 47.5.

1 Reiss initially filed this lawsuit against Dr . John L. Junkins in his official capacity as interim president of Texas A&M University. On July 21, 2023, Welsh became the new interim president of Texas A&M University. Pursuant to Federal Rule of Civil Procedure 25(d), Welsh has taken Dr. Junkins’s positi on as a defendant in this litigation. See Fed. R. Civ. P. 25(d) (“An action does not abate when a pub lic officer who is a party in an official United States Court of Appeals Fifth Circuit 

### FILED August 14, 2024

Lyle W. Cayce Clerk Case: 23-20462 Document: 60-1 Page: 1 Date Filed: 08/14/2024No. 23-20462

2 discriminated against her in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131, et seq. , and the Rehabilitatio n Act, 29 U.S.C. § 701, et seq. , for disability discrimination and failure to accommodate. The district court granted TAMU’s moti on for summary judgment, dismissed Reiss’s claims, and entered final judgmen t. For the reasons that follow, we AFFIRM

. I
Valerie Reiss was a student in Te xas A&M University’s Doctor of Veterinary Medicine (“DVM”) program. It is undisputed that while enrolled in the DVM program, Reiss requested and received accommodations through the disability services office for back conditions exacerbated by a car accident in Spring 2016. Reiss re ceived accommodations in the form of extended time for exams, flexibility wi th tardiness, and limited physical activity. The disability services office provided the same accommodations to Reiss each semester. Reiss was dism issed from the DVM program in April 2019 after receiving a failing grade in her Small Animal General Surgery Rotation. Pursuant to the Texas A& M University Professional Student Handbook, a student is automatically di smissed if they accumulate three Ds, two Fs, or two Ds and one F. Her first semester, Reiss received an F in Small Animal Anatomy and a D in Physiology. In April 2019, Reiss received an F in her Small Animal General Surgery Rota tion—her second F while enrolled in the DVM program—and was automaticallydismissed from the program.
The bulk of Reiss’s claims centers around her experience in her Small Animal General Surgery Rotation. Reiss argues that during this rotation, her supervisor, Dr. Amanda Richards, di d not accommodate her disability.

_____________________ capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The officer’s successor is automatically substituted as a party.”). Case: 23-20462 Document: 60-1 Page: 2 Date Filed: 08/14/2024No. 23-20462

3 Specifically, Reiss alleges that duri ng a surgery on March 7, 2019, Dr. Richards failed to provide her a cart or a standing desk and was angry with Reiss when she raised concerns abou t her disability and accommodations. The following day, Dr. Richards asked Reiss how the accommodations were going, and Reiss responded that the accommodations were “pretty good overall.” During this same conversation , Dr. Richards raised concerns that Reiss was approaching things with “a little too much confidence” and cautioned her to ask questions when she was unsure about something. On March 18, 2019, Dr. Richards sent Reiss an email with more concerns about Reiss’s performance. Dr. Richards listed several issues she saw, including Reiss miscommunicatingwith another student about which medication to prescribe, Reiss being unable to evaluate a patient by sight, and Reiss being unable to address her pa tient’s hypotension effectively. Dr. Richards then outlined several area s where Reiss needed to improve, including asking questions before mo ving forward, co mmunicating more accurately and effectively with her classmates, and taking instruction seriously. Reiss responded with her own interpretation of the points that Dr. Richards had raised, asking to be “g iven the benefit of the doubt,” and the opportunity “to show the improvement” Dr. Richards was looking for. Dr. Richards responded again, copying ot her faculty on the email, raising concerns about Reiss’s performance and her ability to be a competent veterinarian. Reiss failed the rotation and was automatically dismissed from the DVM program. Following the second failing grade, this time in her Small Animal General Surgery Rotation, Reiss was give n a choice between initiating a grade appeal process or appealing for readmi ssion, either of which had to happen within ten business days from the date of her automatic dismissal. Instead of pursuing either option at that time, Reiss requested a medical deferral from the DVM program, which was approved in April 2019. In approving Reiss’s Case: 23-20462 Document: 60-1 Page: 3 Date Filed: 08/14/2024No. 23-20462

4 medical deferral, the letter specifically stated that “because you have been dismissed from the professional curricu lum based upon your accumulation of 2Fs and 1D in the DVM pr ogram, 10 days followingyour return from the medical deferral, you must notify the Professional Programs Office if you wish to appeal the failing gr ade . . . or if you wish to appeal for re admission to the DVM program.” Reiss neither initia ted a grade appeal nor appealed for readmission into the DVM program. In May 2019, she requested a ccommodations in the form of completing all rotations at alternativ e locations in Dallas—away from Texas A&M University. A committee responsible for reviewing accommodation requests denied this accommodation, find ing it to be unreasonable. Instead, the disability services office offered Reiss (1) meetings with clinical supervisors and a veterinary school re presentative before each rotation to review accommodations and discuss conc erns; (2) weekly meetings to ensure all accommodations were being provided; and (3) an opportunity to work with Student Counseling Services to ensure additional counseling was available. Reiss insisted th is offer was unacceptable. In August 2019, Reiss indicated thatshe wished to return to active student status and again requeste d the additional accommodation of completing all final rotations in Da llas. Texas A&M University responded that Reiss had been dismissed from the DVM program and that she must either pursue a grade appeal or appl y for readmission before changing her student status to active. They also noted that Reiss may not move forward with the grade appeal process until she indicated she was ready to return from the medical deferral. Reiss acknowledges that she neither appealed her failing grade nor applied for readmission to the DVM program, and that following this August 2019 exchange, she ceased all communications with Texas A&M. Case: 23-20462 Document: 60-1 Page: 4 Date Filed: 08/14/2024No. 23-20462

5 Reiss brought this lawsuit in January 2021, bringing claims for violations of the ADA and the Rehabilit ation Act for disability discrimination and failure to accommodate. TAMU f iled a motion for summary judgment. Following a Report and Recommendation by the magistrate judge, the district court granted the motion for summary judgment, dismissed Reiss’s claims, and entered final judg ment. Reiss timely appealed.
II
This court reviews a district co urt’s grant of summary judgment de

novo
. Fahim v. Marriott Hotel Servs., Inc. , 551 F.3d 344, 348 (5th Cir. 2008). Summary judgment shall issu e “if the movant shows th at there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “In determining whether a genuine issue as to any material fact exists, [the court] must view the evidence in the light most favorable to the nonmoving party.” Fahim , 551 F.3d at 348–49.
III Reiss appeals the entry of summary judgment as to her disability discrimination and failure to accommodate claims. 2 Reiss argues that the district court erred in entering summary judgment on her disability discrimination claims because “the ev idence showed that Reiss could not return from her medical deferral un less and until she was provided the accommodations requested.” TAMU re sponds that the sole reason for

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2 On appeal, TAMU argues that Reiss did not adequately allege disability discrimination claims in her amended complaint. The district court stated that it was “not entirely clear whether Reiss in tends to bring discrimination claims,” but it addressed the merits of Reiss’s discrimination claims out of an abundance of caution. Reiss’s amended complaint includes headings for “failure to accommodate” and “discrimination.” Although TAMU is correct that much of Re iss’s amended complaint discusses her failure to accommodate claims, we will address Reiss’ s disability discrimination claims as her amended complaint clearly alleges such a claim. Case: 23-20462 Document: 60-1 Page: 5 Date Filed: 08/14/2024No. 23-20462

6 Reiss’s dismissal from the program was her failure to meet the academic standards, and that Reiss failed to crea te a dispute of materi al fact on this issue. To establish a disability discrimination claim under either the Rehabilitation Act or the ADA 3 “in the context of a student excluded from an educational program, on summary judgment, a plaintiff must create a genuine dispute of material fact that: (1) she has a disability; (2) she is otherwise qualified to part icipate in the defendant’s program; and (3) she was excluded from the program on the basis of her disability.” Maples v. Univ. of Tex. Med. Branch , 901 F. Supp. 2d 874, 879 n.3 (S.D. Tex. 2012), aff’d, 524 F. App’x 93 (5th Cir. 2013). To prev ail on a failure to accommodate claim under either statute, on summary judgmen t, a plaintiff must create a genuine dispute of material fact that: “(1) the pl aintiff is a qualified individual with a disability; (2) the disability and its consequential limitations were known by the covered employer; and (3) the emp loyer failed to make reasonable accommodations for such known limitations.” Amedee v. Shell Chem., L.P. , 953 F.3d 831, 837 (5th Cir. 2020). 4 Thus, under both cl aims, Reiss must be otherwise “qualified” to part icipate in the DVM program.

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3 The Rehabilitation Act was enacted “to en sure that handicapped individuals are not denied jobs or other benefits because of prejudiced attitudes or ignorance of others.” Brennan v. Stewart , 834 F.2d 1248, 1259 (5th Cir. 1988). Similarly, the ADA was enacted to prevent discrimination against individuals with disabilities. Id. As the language in the statutes contain parallel language, [j]urisprudence interpreting either section is applicable to both.” Hainze v. Richards , 207 F.3d 795, 799 (5th Cir. 2000).

4 A “qualified individual with a disability” under the ADA is an “individual with a disability who, with or without reasonable modi fications to rules, policies, or practices, . . . meets the essential eligibility requirements fo r the receipt of services or the participation in programs or activities provided by a public entity.” 42 U. S.C. § 12131(2). The Rehabilitation Act similarly prevents discrimi nation against “qualified individuals with disabilities.” 29 U.S.C. § 701. Case: 23-20462 Document: 60-1 Page: 6 Date Filed: 08/14/2024No. 23-20462

7 Reiss argues that she was qualifie d for the program because she passed a licensing exam and had been offered se veral jobs. This is inapposite. It is apparent based on the record that Rei ss does not meet the essential eligibility requirements for participation in the program articulated in the Texas A&M University Professional Student Handbook. McGregor v. La. State Univ. Bd. of Sup’rs , 3 F.3d 850, 855 (5th Cir. 1993 ) (holding that “to be otherwise qualified for retention, McGregor mustbe capable of satisfying the academic and technical requirements set by the L aw Center with the aid of reasonable accommodations”); see also Shaikh v. Texa s A&M Univ. Coll. of Med. , 739 F. App’x 215, 221 (5th Cir. 2018) (finding that the plaintiff satisfied the essential eligibility requirements to remain in the program where he passed all the required curriculum and his third-year c linical rotations with honors). She failed the Small Animal General Surgery rotation as a result of her poor academic performance, and neither appe aled her failing grade nor appealed for readmission. Maples , 901 F. Supp. 2d at 882 (quoting Halpern v. Wake Forest Univ. Health Scis. , 669 F.3d 454, 465 (4th Cir. 2012)) (“[T]he law does not require the school to ignore misc onduct that has occurred because the student subsequently asserts it was th e result of a disability.”). Reiss was unable to meet the essential eligib ility requirements of the DVM program, and thus, cannot bring a failure to accommodate claim or a disability discrimination claim under either the ADA or the Rehabilitation Act. For the foregoing reasons, the judgment of the district court is AFFIRMED. Case: 23-20462 Document: 60-1 Page: 7 Date Filed: 08/14/2024