Last year I wrote a post about how it can be defamatory for an employer to misrepresent the reasons for an employee’s termination. If an employer says that an employee was fired because of reasons X, Y, and Z, the employee may have a valid defamation claim even if statements X, Y, and Z are all completely true. If the reason for the employee’s termination had nothing to do with those pretextual reasons, then the employer’s statement, taken as a whole, is false and therefore potentially defamatory. A case came across my desk today involving a very similar issue: whether a university can be held liable for defamation when announcing that a student’s dismissal from a degree program was due to certain seemingly valid and legitimate concerns based on the student’s failure to pass a required test, when the student’s dismissal was actually due to something else entirely. Consistent with earlier rulings, the court found that on these alleged facts, the plaintiff had presented a viable defamation claim.
The case is John Doe v. Shenandoah University. The alleged facts of the case, according to the opinion, go something like this. The plaintiff was born in Nigeria and emigrated to the United States, where he is now a permanent resident. He enrolled in the Physician Assistant Studies Program (“PA Program”) at Shenandoah University in Winchester, Virginia. At some point after his enrollment, he developed Social Anxiety Disorder, a health condition characterized by extreme fear of social settings. He requested and received various accommodations due to this disorder, such as (a) time and a half for all quizzes and examinations and (b) testing in a quiet, distraction-free environment. One test he was required to pass as part of the PA Program was the Objective Structured Clinical Exam (“OSCE”), a “time-limited practical exam conducted at the end of certain semesters in the PA program” consisting of “a set of predefined stations related to patient care.”
The plaintiff took the test four times and never passed it, at least according to the university. On his fourth attempt, the university allegedly failed to provide him the accommodations they had previously extended to him. The plaintiff claimed that this all but assured his failure: “The presence of multiple evaluators and other individuals within the testing environment was extremely distracting at the outset for Doe and contributed to an exacerbation of his SAD, resulting in a debilitating anxiety attack. As the result, Doe scored below the benchmark on one of the six stations of the examination, which sufficed to cause his failure on the entire exam.” (See Complaint ¶ 78).
When he failed the OSCE a fourth time, the university dismissed the student from the PA Program. During the appeal of his dismissal, the school’s Dean of the School of Health Professions stated that the decision would stand because “reading for accuracy in a clinical environment is required for patient safety.” When he appealed the Dean’s decision to the Provost, the Provost again upheld the determination and added, “While I applaud the significant improvement you have made in your didactic courses, I cannot overlook the ongoing concerns regarding safety and critical decision making that were raised in your final OSCE attempt.” The matter was
Now, you might be thinking that the whole point of the Objective Structured Clinical Exam is to ensure that students are ready to be entrusted with caring for patients and that a student’s failure to pass the exam after four attempts would be a perfectly valid reason to drop him from the PA Program out of concern for patient safety and welfare. So how could these statements be defamatory? The reason, explained the court, was that according to the allegations of the complaint (which must be accepted as true at this early stage of the litigation), the real reason he was released from the program was not because of his failure to pass the OSCE and was not due to any actual, legitimate concerns about patient safety. The real reason, he argued, was discrimination. Discrimination based on his race, and discrimination based on his disability.
The statements at issue implied that the plaintiff was being terminated from the program due to concerns about patient safety. While it may be debatable whether a PA’s inability to pass the OSCE is cause for safety concerns, what’s not debatable is whether safety concerns were the reason the plaintiff was released from the program. The court found that the statements “reasonably imply that Doe is unfit in his chosen profession” and that he therefore had a viable claim of defamation per se.
So the court denied the university’s motion to dismiss the defamation claims. It should be noted, however, that the case is far from over. The plaintiff has alleged that his dismissal from the PA Program “was not the result of [his] lack of ability, effort, intelligence, knowledge, or qualifications. Rather, it was the predetermined outcome of a continuing pattern of discriminatory treatment and a hostile learning environment against [him] due to his race and disability.” If that’s true, he has alleged a valid defamation claim. To win, he will have to prove this allegation at trial. Easier said than done.