# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

A rgued January 11, 2017 Decided February 10, 2017

No. 16

- 7055

S INA C HENARI ,

A PPELLANT

v.

G EORGE W ASHINGTON U NIVERSITY , A PPELLEE

Appeal from the United States District Court for the District of Columbia (No. 1:14

- cv

- 00929)

Jason J. Bach argued the cause and filed the briefs for appellant. Tracy D. Rezvani entered an appearance.

Nicholas S. McConnell argued the cause for appellee. With him on the brief was James N. Markels

.

Before: T ATEL , M ILLETT , and W ILKINS , Circuit Judges

. Opinion for the Court filed by Circuit Judge T ATEL

.

T ATEL , Circuit Judge : After George Washington University Medi c al School expelled appellant for cheating on

a n exam, he brought suit in federal court for breach of2

contract and discrimination based on disability

. The district court granted summary judgment to the University, deferring
to its view that appellant broke its honor code and finding no violation of the relevant disability statutes

. For the reasons set forth in this opinion, we affirm.

I.
On December 14, 2012, appellant Sina Chenari, a third

year medical student at George Washington University , took the Step 1 Surgery Shelf Exam, a standardized test pub lished by the National Board of Medical Examiners (NBME)

. Before the exam, the proctor read aloud the instructions from NBME’s official Chief Proctor’s Manual , including that students must complete the exam in two and a half hours and that “[n]o additional time [would] be allowed for transferring answers” from the test booklet to the answer sheet. Chenari also received a copy of the “Exam Guidelines,” which contain ed a similar warning.

In his deposition, Chenari explain ed that w hen the
pro ctor called time, he discovered that he had failed to transfer some twenty or thirty answers from the test booklet to the front side of the answer sheet . According to C henari , he “panicked” and “ continued to transfer my answers

. ” Chenari Dep. 267:7

– : 9. T he proctor “asked me to stop, ” but “ I continued to bubble in [the answer sheet].” Id. at 269:6

– : 18. When t he proctor then “reached over me to try to get the exam, I just put my hand over the booklet and the exam and just continued to bubble in my answers.” I d. at 270:3

– : 6. Once Chenari finished, he “ sat back ” and the proctor “picked [the exam] up.” Id. at 278:21

– 280:11. As Chenari concedes, he ended up taking an additional “90 seconds to two minutes.” Id. at 271:12

– :13.3
The proctor reported Chenari to the medical school’s administration , as did a nother student present at the exam

. In
response, Associate Dean for Students Rhonda Goldberg met with Chenari to discuss the incident. According to Goldberg’s deposition, Chenari told her that he “needed to” finish bubbling in his answers but “ probably made a mistake” by doing so. Goldberg Dep. 23: 1

– :3.

Pursuant to University procedures, Goldberg formed an Honor Code Council sub committee to investigate

. After holding a hearing

, the subcommittee issu ed a report recommending Chenari’s dismissal for academic dishonesty. T he subcommittee forwarded its recommendation to the Medical Student Evaluation Committee

, and in a written
statement to that Committee Chenari took responsibili ty for his “deplorable behavior ” to ward the proctor

, acknowledg ing his “clear violation of the most basic rules of th [ e ] University

. ” Chenari Dep. Ex. 37 at 1. He n onetheless asked for leniency because , he insisted

, his “beh avior did not involve deception ” and h e had no prior di sciplinary infractions. Id. After a hearing, the Committee unanimously recommended Chenari’s dismissal. The Medical S chool Dean then reviewed the reports

, met with Chenari

, and upheld the recommendation of dismissal. Now represented by counsel, Chenari appealed to the Provost, arguing in a written submission that his conduct lacked “an element of deceit” like “cheat[ing]” or “l[ying]

. ” Chenari Dep. Ex. 40 at 1. Rather, his “mistake” was “completely out in the open.” Id. at 2. The Provost denied the appea l, and the University dismissed Chenari from the medical school

. On May 30, 2014, Chenari filed this action in the U.S. District Court for the District of Columbia seeking reinstatement and damages . He a lleged several theories of relief

. F irst

, he argue d that he n ever violated the University’s4

Honor C ode , so the University’s decision to dismiss him breached its contract with him and the contract’s implied covenant of good faith and fair dealing

. Second, he claimed that he has a disability, Attention Defic it Hyperactivity Disorder ( ADHD ) , which he alleged the University failed to accommodate in violation of the Rehabilitation Act (“Rehab Act”)

, 29 U.S.C. § 794(a)

, and the Americans with Disabilities Act (ADA)

, 42 U.S.C. § 12132

. Although Chenari also claimed that he suffered from anxiety, he never argued

, either here or in the district court, that his anxiety qualified as a disability under the disability statutes. See Adams v. Rice

, 531 F.3d 936, 943 (D

. C

. Cir

. 2008) (describing “disability” as a “term of art under the statute[s] ”)

. Finally, Chenari argued that the University discriminated against him for his ADHD and retaliated against him “when he b egan to advocate for his rights, ” claims he does not pursue on appeal. Compl. ¶ ¶ 44

, 55

. The University moved for summary judgment, which the district court granted. Chenari v. George Washington University , 172 F. Supp. 3d 38 (D.D.C. 2016).

II. We review an order granting summary judgment de novo

, viewing the evidence and drawing all reasonable inferences in favor of the nonmoving party. Foster v. Sedgwick Claims Management Services, Inc. , 842 F.3d 721, 725 (D.C. Cir. 2016). Summary judgment is appropriate if the movant , here the University, “ shows that there is no genuine dispute as to any mater ial fact and the movant is entitle d to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A dispute about a material fact is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Johnson v. Perez , 823 F.3d 701, 705 (D.C. Cir. 2016) (alteration, internal quotation marks, and citation omitted). We begin with Chenari’s contract claims.5

A. Under District of Columbia law, which governs here, “‘the relationship between a university and its students is
contra ctual in nature.’” Manago v. District of Columbia , 934 A.2d 925, 927 (D.C. 2007) (quoting Basch v. George Washington University , 370 A.2d 1364, 1366 (D.C. 1977) (per curiam)). In breach of contract cases against a u niversity, “a judgment by school official s that a student has not performed adequately to meet the school ’ s academic standards is a determination that usually calls for judicial deference.” Alden v. Georgetown University , 734 A.2d 1103, 1108 (D.C. 1999). This rule stems from the principle that a diploma publicly signals a school’s confidence in a student’s knowledge and skills, so the “ ‘ decisions surrounding the issuance of these credentials [should] be left to the sound judgment of the professional educators who monitor the progress of their stud ents on a regular basis. ’ ” Id

. at 1109 (quoting Olsson v. Board of Higher Education , 402 N.E.2d 1150, 1153 (N.Y. 1980)) . A university “will be entitled to summary judgment unless the plaintiff can provide some evidence from which a fact finder could conclu de that there was no rational basis for the decision or that it was motivated by bad faith or ill will unrelated to academic performance.” Id. (citation and internal quotation marks omitted) . Similarly, to show that a university breached the implied covena nt of good faith and fair dealing, a plaintiff must allege “either bad faith or conduct that is arbitrary and capricious” and, in resolving such cases, courts must not “substitut[e] their judgment improperly for the academic judgment of the school.” Wright v. Howard University , 60 A.3d 749, 754

– 55 (D.C. 2013) (alteration and internal quotation marks omitted ) (citing Allworth v. Howard University

, 890 A.2d 194, 20 2 (D.C. 2006); Alden , 734 A

. 2d at 111 1 n.11). True, all these cases involve decisions about academic performance, not honor code violations, but Chenari does not argue

— nor do we6

decide

— that a different standard should apply here

. Cf. Hajjar

- Nejad v. George Washington University , 37 F. Supp. 3d 90, 116

– 18 (D.D.C. 201 4) (“[C]ourts have concluded that, particularly for medical students , professional comportment issues fall under the umbrella of deference to academic decisions.”). Because the standards for breach of contract and implied covenant cases overlap, we address Chenari’s two claims together.

The University dismissed Chenari for violating its Honor Code. Section F(2)(a) of that Code prohibits students from “giv [ing] or receiv [ing] ” unpermitted aid on tests and assignments, plagiariz ing , falsify ing reports, infring ing on the rights of other students, or “violat [ing] any other commonly understood principles of academic honesty.” Goldberg Decl. Ex. A at 8. The University concluded that Chenari violated the Code’s “any other” clause by “knowingly conti nu [ing] to fill in his answers on his answer sheet after time was called and until he completed his answer sheet despite having been instructed by a university proctor three times to stop doing so.” Chenari Dep. Ex. 37 at 4. W e agree with the district cour t that this represents a perfectly “rational basis” for disciplining Chenari. Alden , 734 A.2d at 1109. As the district court explained, Chenari “stole time,” gaining “an unfair advantage over the peers who adhered to the rules ”

— an obvious breach of a n Honor Code that prohibits violation of “commonly understood principles of academic honesty.” Chenari , 172 F. Supp. 3d at 49; s ee Alden, 734 A.2d at 1111 (“Far from lacking a rational basis for dismissal, the Committee on Students had sufficient academic e vidence in the record from which to determine that Alden should be dropped from the school's rolls.”).

Chenari nonetheless argues

, for four separate reasons

, that the University’s decision lacked a rational basis. First, he7
points out that the proctor failed to cite the Honor Code or Exam Guidelines in her initial report to the University, but he cites nothing in the University’s rules requiring that she do so. Second, he claims that h e made no “attempt . . . to conceal his actions.” Appellant’s Br. 19. This is absurd. Just as stealing is stealing, whether at gunpoint or in secret bank transfers, so cheating is cheating, whether in front of a proctor or behind the proctor’s back

. Third, and “most importantly” to Chenari, the University scored his comp leted answer sheet and “determined that [he] did in fact pass the exam.” Appellant’s Br. 20. This too is absurd

— so absurd that it hardly requires a response, other than to point out that Chenari may well have passed the exam because he took an additional n inety seconds to fill in his answer sheet

. Chenari’s only argument that could conceivably raise doubts about the University’s explanation is his assertion that transferring answers from a test booklet to the answer sheet after time expired represented a “common an d accepted practice of the GWU medical school.” Appellant’s Br. 19. But if that is so, why in his deposition did Chenari state that he ha d seen his classmates d o so “covertly

, ” a nd why

, d uring the disciplinary process, did he characterize his co nduct as an act “with blatant disregard for the rules and for t he rights of my fellow students ” ? Chenari Dep. 272:21

– :22 , Ex. 37 at 1

. I n any event , whatever the common practice at the medical school

, this exam was administered under NBME procedures

, which expressly warned that “[n]o additional time will be allowed for transferring answers” from the test booklet to the answer sheet. Ruiz Decl. at 2.

Finally, Chenari argues that the University acted in bad faith by dismissing him rather than accommo dating his ADHD

. As the district court explained, however, Chenari has pointed to no record evidence that “ the [ University ] or any8

individual involved in the [disciplinary] process acted out of bad faith or ill will.” Chenari , 172 F. Supp. 3d at 48. Nor does he claim that dismissing him for cheating was either excessive or discriminatory. Chenari simply urges us to infer that the University acted in bad faith because it “did absolutely nothing to help him. ” Appellant’s Br. 20. But e ven if such an infe rence would be appropriate

, Chenari’s argument turns entirely on how the University in fact responded to his claimed disability, an issue to which we now turn

.

B.

Chenari argues that the University discriminated against him in violation of Title II of the ADA

, 42 U.S.C. § 12132

, and S ection 504 of the Rehab ilitation Act , 29 U.S.C. § 794(a). Title II, however, prohibits discrimination only by a “ public entity,” a term the ADA defines as “any State or local government,” an instrumentality of a state or local government, “the National Railroad Passenger Corporation, and any commuter authority.” 42 U.S.C. § § 12131(1), 12132. Because George Washington University , a private institution, fits none of these definitions

, Chenari’s Title II claim fails. Cf. Singh v. George Washington University School of Medicine and Health Services , 508 F.3d 1097, 1105 (D.C. Cir. 2007) (citing 42 U.S.C. § 1218 2 ) ( deciding a similar case under Title III of the ADA

, which prohibits discrimination by a “place of public accommodation” ). T his pleading error

, however, makes little difference because Chenari may pursue his claim under Section 504 of the Rehabilitation Act

. See American Council of the Blind v. Paulson , 525 F.3d 1256, 1260 n.2 (D.C. Cir. 2008) ( explaining that the Rehab Act and Title II of the ADA “ are similar in substance and consequently cases interpreting either are applicable and interchangeable” (alterations, citations, and internal quotation marks omitted) ) ; Harrison v. Rubin , 174 F. 3d 249, 253 (D.C.9
Cir. 1999) (“Claims and defenses under the two statutes are virtually identical.”).

To prevail on his failure

- to

- accommodate claim

, Chenari
must “produc e sufficient evidence (a) that [ he ] was disabled for the purposes of the Rehabilitation Act, (b) that [the University ] had notice of [his] disability, and (c) that [the University ] denied [his] request for a reasonable accommodation of [his] disability.” Stewart v. St. Elizabeths Hospital

, 589 F.3d 1305, 1307

– 08 (D.C. Cir. 2010) (citations omitted) ; see Davis v. Shah , 821 F.3d 231, 259

– 60 (2d Cir. 2016) (“A plaintiff may base her [section 504] discrimination claim on .

. . failure to make a reasonable accommodation.”); see also Am erican Coun cil , 525 F.3d at 1260 & n.2, 1266

– 67 & n.14 (allowing a failure

- to

- accommodate theory to proceed under the Rehab Act and “constru[ing] section 504 in pari materia with Title II of the ADA”); McElwee v. County of Orange , 700 F.3d 635, 640 & n.2 (2d Cir. 2012) ( treating as “interchangabl[e]” Title II’s “reasonable modifications” requirement and Title I’s “reasonable accommodations” requirement )

. The district court granted summary judgment to the University because, in its view, Chenari had of fered no evidence showing either that the University had notice of his disability or tha t he had requested an accommodation. Chenari , 172 F. Supp. 3d at 51

– 56.

On appeal, Chenari insists that he did give the University notice of his ADHD . In support he cites his deposition , in which he claims that , in a meeting with Goldberg and another University official in Octo ber 2012

— two months before the

s urgery e xam

— he informed them of his ADHD diagnosis, including that he had been prescribed medication for the di sorder

. In her deposition, however, Goldberg denied Chenari’s account of the meeting, claiming that they discussed only his academic performance.10

Th is is a classic “genuine dispute as to [a] material fact.” Fed. R. Civ. P. 56(a). Under oath, Chenari testi fied that he informed Goldberg of his ADHD. Under oath, Goldberg denie d it

. At summary judgment, a court “ may not . . . believe one witness over another if both witnesses observed the same event in materially different ways.” Johnson , 823 F.3d at 705. Indeed, a court “ may not believe ” the movant’s witness

— here the University’s

— given its obligation to view the record “in a light most favorable to the nonmoving part y ”

— here, Chenari. Robinson v. Pezzat , 818 F.3d 1, 8 (D.C. Cir. 2016).

In dismissing Chenari’s testimony as “insufficient to create a g enuine dispute of material fact

, ” Chenari , 172 F. Supp. 3d at 54

, the district court applied the well

- accepted rule that courts may “ lawfully put aside testimony that is so undermined as to be incredible.” Robinson , 818 F.3d at 10 (quoting Johnson v. Washington Metropolitan Area Transit Authority , 883 F.2d 125, 128 (D.C. Cir. 1989), abrogated on other grounds by Robinson v. District of Columbia , 580 A.2d 1255, 1258 (D.C. 1990)). That scenario is “most likely when a plaintiff’s claim is supported solely by the plaintiff’s own self

- serving testimony, unsupported by corroborating evidence, and undermined either by other credible evidence, physical impossibility or other persuasive evidence that the plaintiff has deliberately committed perjury.” Johnson , 883 F.2d at 128. This is not such a case.

The University cites nothing to indicate that Chenari’s testimony is “ undermined

. . . by other credible evidence, physical impossibility or other persuasive evidence. ” Moreover, as this court has explained, evidence sufficient to dismiss a plaintiff’s uncorroborated, self

- serving testimony

— the situation here

— is “rare [] .” Robinson

, 818 F.3d at 10. For example, summary judgment is proper when a plaintiff’s statement is dem onstrably false after review of a “quite11
clear[]” videotape, or when the testimony is contradicted by “multiple disinterested witnesses.” Id. (citing Scott v. Harris

, 550 U.S. 372, 378 (2007) ; Johnson , 883 F.2d at 128

– 29). Here, by contrast, we have only Goldberg’s contradictory testimony and , as the district court pointed out, that Chenari never mentioned his ADHD in other meetings with University officials, including during his disciplinary proceedings. See Chenari , 172 F. Supp. 3d at 52

– 54

. Those facts certainly go to Chenari’s credibility, but n othing about them is “remotely compelling enough to require a jury to disregard” his testimony. Robinson , 818 F.3d at 11.

Although the district court thus erred in granting summary judgment on the notice question, this does not end the matter . As explained above, in order to prevail on his failure

- to

- accommodate claim, Chenari must demonstrate not only that he gave notice, but also that the University denied a requested accommodation

. After c onsidering the evidence, the district court found that Chenari failed to seek a reasonable accommodation. See Chenari , 172 F. Supp. 3d at 54

– 56.

Chenari concedes that he never requested an accommodation , but argues that his “repeated notifications to the administration created an obligation on [ the University ] to investigate and implement reasonable accommodations.” Appellant’s Br. 28. To be sure, there may well be cases where the plaintiff’s need for an accommodation is so apparent that the defendant must offer one regardless of whether the plaintiff requested it

. See , e.g. , Pierce v. District of Columbia

, 128 F. Supp. 3d 250, 269

– 70 (D.D.C. 2015) (rejecting “the District’s suggestion that a prison facility need not a ct to accommodate an obviously disabled inmate if the inmate does not ask for accommodations ”). Although we doubt that this is such a case, we have no need to consider the question given12
that the record makes abundantly clear that the University did offer Chenari an accommodation

.

As Chenari conceded in his deposition, University officials twice referred him to counseling and therapy, including once to a specific counselor to deal with his anxiety about a course involving roleplay ing

. Chenari acknowledged that he neve r followed up on those referral s , insisting that he had “no time,” though he never req uested time off to seek therapy

— as he also concedes. Chenari Dep. 246:8

– :9.

In addition to these express offers of assistance, t he University has an Office of Disability Support S ervices

, which , according to its director, “receive[s] and evaluate[s] requests for accommodations from students.” McMenamin Decl. 1. Goldberg explained in her declaration that she tells all first

- year students that “if they have a disability and need to request an accommodation, it is the student’s responsibility to go to [the Office] to pursue that matter.” Goldberg Decl. 1. Moreover , the University’s “First Year Survival Guide” for medical studen ts instructs “[s]tudents who suspect that they may have a disability[] which may require an accommodation” to contact the Office.

Finally, the Office of Disability Support Services maintains a website that walks students through the process for obtain ing a reasonable accommodation. See Disability Support Services

, George Washington University, https://disabilitysupport.gwu.edu/ (last visited Feb . 2 , 2017). At the time Chenari attended the University , the website included specific instructions about how students with ADHD could obtain accommodations. Although Chenari testified that he “did not know” about the website , he admitted receiving and “looking through” the First Year Survival Guide , and as noted ab ove, Goldberg reported that she told all entering13

stude nts about the disability office

. Chenari Dep. at 176:19, 186:18

– 19

.
To sum up

, then, the University not only twice offered Chenari cou nseling, but also, through its D isability O ffice and that office’s website, offer ed all students a procedure for obtaining any reasonable accommodation they might need. The Rehabilitation Act requires no thing more

.

III

. For the foregoing reasons, we affirm

.

So ordered.