Appendix Volume 8

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

_______________________________________________________
APPEAL NO. 17-11888

APPEAL NO. 17-12134
APPEAL NO. 17-12376
_________________________________________________________
NAUSHEEN ZAINULABEDDIN
PLAINTIFF-APPELLANT
v.
UNIVERSITY OF SOUTH FLORIDA, BOARD OF TRUSTEES

DEFENDANT-APPELLEE
_________________________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA (TAMPA DIVISON)
CASE NO. 8:16-cv-00637 (Hon. James S. Moody)
____________________________________________________
PLAINTIFF APPENDIX
VOLUME VIII OF XII: DOCKET 38 to 48.1
(Pages A-1437 TO A-1641)
___________________________
APPELLANT
Nausheen Zainulabeddin
4730 South Woodlawn Ave. Apt 3D
Chicago, IL 60615
nausheenkhawaja@gmail.com
Pro Se
INDEX
VOL. Tab Date Title Page

numbers
A-
I 2 1/22/16 Complaint filed in the Circuit 1-58
Court of the 13th Judicial
Circuit in and for Hillsborough
County, Florida
I 2-1 1/22/16 Dkt. 2 Exhibit A 59-64
I 2-2 1/22/16 Dkt. 2 Exhibit B 65-167

I 2-3 1/22/16 Dkt. 2 Exhibit C 168-169
I 2-4 1/22/16 Dkt. 2 Exhibit D 170-171
I 2-5 1/22/16 Dkt. 2 Exhibit E 172-175
I 2-6 1/22/16 Dkt. 2 Exhibit F 176-178
I 2-7 1/22/16 Dkt. 2 Exhibit G 179-180
I 1 3/17/16 Defendant Notice of Removal 181-186
I 1-1 3/17/16 Dkt. 1 Exhibit B: Summons 187-190
I 1-2 3/17/16 Dkt. 1 Exhibit C: Notice of 191-193
Appearance
I 1-3 3/17/16 Dkt. 1 Exhibit D: Designation 194-196
of E-mail Addresses
I 1-4 3/17/16 Dkt. 1 Exhibit F: Civil Cover 1971-198
Sheet
I 4 3/24/16 Defendant’s Motion to Dismiss 199-209
and for more Definite
Statement and Supporting
Memorandum of Law
II 6 3/30/16 Plaintiff’s Response in 210-222
Opposition to Defendant’s
Motion to Dismiss and for
more Definite statement, with
i
Incorporated Memorandum of
Law
II 6-1 3/30/16 Dkt. 6 Exhibit A 223-228
II 9 4/06/16 Case Management and 229-231
Scheduling Order
II 10 4/13/16 Order: Denial of Dkt. 4 232-240
II 11 4/27/16 Defendant’s Answer, Defenses, 241-272
and Affirmative Defenses
II 12 09/08/16 Unopposed Motion to 273-275
Withdraw and for Substitution
of Counsel
II 14 11/09/16 Order Referring Case to 276-280
Mediation and Directing
Selection of a Mediator
II 15 11/29/16 Joint Motion for Enlargement 281-284
of the Discovery and
Dispositive Motion Deadlines
II 17 12/09/16 Notice of Mediator Selection 285-286
and Scheduling of Mediation
II 18 12/13/16 Order Appointing Mediator and 287-288
Scheduling Mediation
II 19 02/01/17 Plaintiff Partially Opposed 289-294
Motion to take Deposition of
Dr. Joanne Valeriano-Mercent
Subsequent to close of
discovery with incorporated
statement of good cause
wherefore
II 19-1 02/01/17 Dkt. 19 Exhibit A: Plaintiff’s 295-297
Notice of Taking Deposition of
Dr. Joanne Valeriano-Marcet
II 20 02/02/17 Granted Order of Dkt. 19 298-299
II 21 02/03/17 Joint Motion to Extend 300-302
Mediation Deadline
ii
II 22 02/04/17 Defendant’s Motion for 303-326
Summary of Judgement
II 23 02/04/17 Defendant’s Notice of Filing 327-328
Deposition Transcripts In
Support of Its Motion for
II & III 23-1 02/04/17 Dkt. 23 Exhibit A, Volume I: 329-448
Plaintiff’s Deposition
Transcript and Exhibits
III 23-2 02/04/17 Dkt. 23 Exhibit A, Volume II: 449-563
Plaintiff’s Deposition
Transcript and Exhibits
III & IV 23-3 02/04/17 Dkt. 23 Exhibit B Deposition 564-650
Transcript of Dr. Deborah Roth
and Exhibits
IV 23-4 02/04/17 Dkt. 23 Exhibit C: Deposition 651-737
Transcript of Dr. Ambuj Kumar
and Exhibits
IV 23-5 02/04/17 Dkt. 23 Exhibit D: Deposition 738-810
Transcript of Dr. Saundra Stock
and Exhibits
IV &V 23-6 02/04/16 Dkt. 23 Exhibit D: Additional 811-871
documents
V 25 02/09/16 Notice of Withdrawal of 872-873
Plaintiff’s Motion to Take
Deposition of Dr. Joanne
Valeriano-Mercet
V 26 02/19/17 Plaintiff’s Statement of 874-885
Disputed Material Facts
V 26-1 02/19/17 Dkt. 26 Exhibit A 886-893
V 26-2 02/19/17 Dkt. 26 Exhibit B 894-898
V 26-3 02/19/17 Dkt. 26 Exhibit C 899-907
V 27 02/19/17 Plaintiff’s Response in 908-927
iii
Motion for Summary
Judgement
V 28 02/19/17 Plaintiff’s Notice of Filing 928-929
Affidavit in Support of
Plaintiff’s Response in
Motion for Summary
Judgement
V 28-1 02/19/17 Dkt. 28 Affidavit of Plaintiff 930-956
V 28-2 02/19/17 Dkt. 28 Exhibit A, B, C, D, 957-972
V 28-3 02/19/17 Dkt. 28 Exhibit E 973-980
V 28-4 02/19/17 Dkt. 28 Exhibit F, G, H, 981-995
V 28-5 02/19/17 Dkt. 28 Exhibit I, J, K, L 996-1018
V 29 02/19/17 Plaintiff’s Notice of Filing 1019-1020
Deposition of Steven Specter in
support of Plaintiff’s Response
in Opposition to Defendant’s
Motion for Summary
Judgement
V & VI 29-1 02/19/17 Dkt. 29 Deposition of Steven 1021-1203
Specter, Ph.D
VI 29-2 02/19/17 Dkt. 29 Plaintiff’s Amended 1204-1209
Notice of Taking Deposition of
Dr. Steven Specter
VI 29-3 02/19/17 Dkt. 29 Exhibit 2 1210
VI 29-4 02/19/17 Dkt. 29 Exhibit 3 1212
VI 29-5 02/19/17 Dkt. 29 Exhibit 4 1214
VI 29-6 02/19/17 Dkt. 29 Exhibit 5 1215
VI 29-7 02/19/17 Dkt. 29 Exhibit 6 1216
VI 29-8 02/19/17 Dkt. 29 Exhibit 7 1221
VI 29-9 02/19/17 Dkt. 29 Exhibit 8 1222
VI 29-10 02/19/17 Dkt. 29 Exhibit 9 1223
VI 29-11 02/19/17 Dkt. 29 Exhibit 10 1225
iv
VI & 29-12 02/19/17 Dkt. 29 Exhibit 11 1242
VII
VII 29-13 02/19/17 Dkt. 29 Exhibit 12 1243
VII 29-14 02/19/17 Dkt. 29 Exhibit 13 1244
VII 29-15 02/19/17 Dkt. 29 Exhibit 14 1251
VII 29-16 02/19/17 Dkt. 29 Exhibit 15 1260
VII 29-17 02/19/17 Dkt. 29 Exhibit 16 1269
VII 29-18 02/19/17 Dkt. 29 Exhibit 17 1270
VII 29-19 02/19/17 Dkt. 29 Exhibit 18 1276
VII 29-20 02/19/17 Dkt. 29 Exhibit 19 1284
VII 29-21 02/19/17 Dkt. 29 Exhibit 20 1285
VII 29-22 02/19/17 Dkt. 29 Exhibit 21 1287
VII 30 02/19/17 Plaintiff’s Notice of Filing 1288
Complete Deposition
Transcript of Dr. Ambuj Kumar
in Support of Plaintiff’s
Response in Opposition to
Defendant’s Motion for
VII 30-1 02/19/17 Dkt. 30 Deposition 1290-1362
VII 30-2 02/19/17 Dkt. 30 Exhibit 1 1363
VII 30-3 02/19/17 Dkt. 30 Exhibit 2 1364-1365
VII 30-4 02/19/17 Dkt. 30 Exhibit 3 1366-1371
VII 30-5 02/19/17 Dkt. 30 Exhibit 4 1372-1377
VII 30-6 02/19/17 Dkt. 30 Exhibit 5 1378-1396
VII 30-7 02/19/17 Dkt. 30 Exhibit 6 1397
VII 30-8 02/19/17 Dkt. 30 Exhibit 7 1399
VII 30-9 02/19/17 Dkt. 30 Exhibit 8 1401
VII 30-10 02/19/17 Dkt. 30 Exhibit 9 1402
VII 30-11 02/19/17 Dkt. 30 Exhibit 10 1403
VII 30-12 02/19/17 Dkt. 30 Exhibit 11 1405
VII 30-13 02/19/17 Dkt. 30 Exhibit 12 1406
VII 30-14 02/19/17 Dkt. 30 Exhibit 13 1407
v
VII 30-15 02/19/17 Dkt. 30 Exhibit 14 1408
VII 30-16 02/19/17 Dkt. 30 Exhibit 15 1409
VII 30-17 02/19/17 Dkt. 30 Exhibit 16 1410
VII 31 02/27/17 Joint Motion to Extend 1418
Mediation Deadline
VII 33 03/01/17 Defendant’s Motion for Leave 1421
to reply to Plaintiff’s Response
to Defendant’s Motion for
Summary Judgement
VII 35 03/07/17 Unopposed Motion to 1424
Withdraw and for Substitution
of Counsel
VII 36 03/08/17 Order Granting Dkt. 35 1427
VII 37 03/15/17 Defendant’s Reply to Plaintiff’s 1428
VIII 38 03/18/17 Plaintiff’s Motion for Leave to 1437
File Surreply to Defendant’s
Reply Memorandum to
Plaintiff’s Response in
Motion for Summary
Judgement
VIII 40 03/22/17 Mediation Report 1440
VIII 41 03/24/17 Plaintiff’s Surreply to 1442
Defendant’s Reply
Memorandum to Plaintiff’s
Summary Judgement
VIII 41-1 03/24/17 Dkt. 41 Exhibit A 1447
VIII 41-2 03/24/17 Dkt. 41 Exhibit B 1451
vi
VIII 42 04/19/17 Order Granting Summary of 1455-1484
Judgement in Favor of
Defendant
VIII 43 04/20/17 Judgement in Civil Case signed 1485-1486
by Deputy Clerk
VIII 44 04/26/17 Plaintiff’s Notice of Appeal to 1487-1488
USCA 11th circuit for Dkt. 42
VIII 46 04/27/17 Transfer of Appeal to USCA 1489-1552
11th Circuit (Dkt. 44).
VIII 47 04/27/17 Application for Leave to 1553-1555
Withdraw as Counsel
VIII 48 05/01/17 Motion for Reconsideration 1556-1581
VIII 48-1 05/01/17 Dkt. 48 Exhibit 1 to Exhibit 14 1582-1641
IX 48-2 05/01/17 Dkt. 48 Exhibit 15 to 32 1642-1720
IX 48-3 05/01/17 Dkt. 48 Exhibit 33 to 43 1721-1806
IX & X 48-4 05/01/17 Dkt. 48 Exhibit 44 to 47 1807-1841
X 48-5 05/01/17 Dkt. 48 Exhibit 48 to 57 1842-1935
X 49 05/01/17 Dkt. 48 Affidavit 1936-1948
X 50 05/01/17 Motion For Recusal 1949
X 50-1 05/01/17 Dkt. 50 Exhibit A to Exhibit I 1973-2042
X 51 05/01/17 Pro Se Motion of Continuance 2043-2046
XI 54 05/03/17 Order Denying Motion for 2047-2049
Reconsideration (Dkt. 48)
XI 55 05/03/17 Defendant’s Motion to Tax 2050-2055
Costs with Verified Bill of
Costs
XI 55-1 05/03/17 Dkt. 55 Exhibit A 2056-2081
XI 56 05/03/17 Plaintiff’s Motion to Stay 2082-2097
District Court Administrative
Proceedings of
(1) Pro Se Motion of
Continuance
(2) Motion for
Reconsideration
vii
(3) Motion of Recusal,
Pending Appeal
XI 56-1 05/03/17 Plaintiff’s Responses and 2098
Objections to Defendant’s First
Set of Interrogatories to
Plaintiff. + Exhibits
XI 59 05/08/17 Directions to Clerk for Notice 2164
of Appeal dated April 26, 2017
XI 59-1 05/08/17 Dkt. 59 Exhibit A 2166
XI 60 05/10/17 Notice of Appeal for Dkt. 57; 2178
dated May 10, 2017
XI 61 05/10/17 IFP of USCA FC 2180
XI 64 05/17/17 Plaintiff Opposition to 2185
Defendant’s Bill of Costs
XI 64-1 05/17/17 Dkt. 64 Exhibit A to E 2199

XI & 64-2 05/17/17 Dkt. 64 Exhibit F 2214
XII
XII 64-3 05/17/17 Dkt. 64 Exhibit G 2300
XII 64-4 05/17/17 Dkt. 64 Exhibit H 2345
XII 64-5 05/17/17 Dkt. 64 Exhibit 2400
XII 64-6 05/17/17 Dkt. 64 Exhibit 2304
XII 66 05/19/17 Order granting Dkt. 64 in favor 2405
of Defendant
XII 67 05/22/17 Bill of Costs 2412
XII 69 05/22/17 Direction to Clerk for Notice of 2413
Appeal dated May 10, 2017
XII 70 05/22/17 Notice of Appeal to USCA FC 2429
and Petition of Review
XII 71 05/22/17 Notice of Appeal for Dkt. 66 2431
dated May 22, 2017
XII 74 05/23/17 Directions to the Clerk; 2433
Transfer Error
viii
9/2/2017 Zainulabeddin v. University of South Florida Board of Trustees (8:16-cv-00637), Florida Middle District Court
Zainulabeddin v. University of South Florida Board of Trustees

Dashboard
Florida Middle District Court

Judge: James S Moody, Jr
Referred: Thomas G Wilson
Case #: 8:16-cv-00637
Nature of Suit 440 Civil Rights - Other Civil Rights
Cause 29:0794 Job Discrimination (Handicap)
Case Filed: Mar 17, 2016
Terminated: Apr 20, 2017
Docket Parties (2) Related Cases (4) News
Last checked: Tuesday Sep 13, 2016 5:04 AM EDT Update Parties
Defendant
Represented By
University of South Florida Board of Trustees
John F. Dickinson
Constangy, Brooks, Smith, & Prophete, LLP
jdickinson@constangy.com
John Sikes Gibbs

egibbs@constangy.com
J. Ray Poole, Jr.

rpoole@constangy.com
Plaintiff
Represented By
Stanley Robert Apps
Stanley R. Apps, P.A.
stan.apps@gmail.com
0:17-prici-11888 - Nausheen Zainulabeddin v. University of South Florida Bo 04/27/2017
https://www.pacermonitor.com/case/11005379/Zainulabeddin_v_University_of_South_Florida_Board_of_Trustees 1/15
0:17-cvpri-02083 - Zainulabeddin v. USF Board of Trustees 05/25/2017
Navigation Edit Alert
Docket last updated: 09/01/2017 11:59 PM EDT Update Now
Friday, July 28, 2017
82 appeal USCA Mandate Fri 12:08 PM

MANDATE of USCA for the Federal Circuit terminating appeal as to70 Notice of appeal filed by Nausheen
Zainulabeddin Issued as Mandate: 7/27/17 USCA number: 17-2083 ML. (JNB)
81 appeal USCA order Fri 12:07 PM

ORDER of USCA for the Federal Circuit:. The motion to acknowledge Ms. Zainulabeddin's filing as timely31 is
granted. The petition for panel rehearing30 is denied. All other pending motions28 3233 are denied as moot.
No further motions will be docketed or considered as to70 Notice of appeal filed by Nausheen Zainulabeddin.
EOD: 7/27/17; USCA number: 17-2083 ML. (JNB)
Tuesday, June 20, 2017
80 3 pgs appeal USCA order Tue 11:57 AM
ORDER of USCA filed terminating appeal; denying as moot motion to allow efiling19 filed by Appellant
Nausheen Zainulabeddin; denying as moot motion for other relief15 filed by Appellant Nausheen
Zainulabeddin, denying as moot motion for other relief11 filed by Appellant Nausheen Zainulabeddin; denying
as moot motion to correct document14 filed by Appellant Nausheen Zainulabeddin; denying as moot motion
for leave to proceed in forma pauperis7 filed by Appellant Nausheen Zainulabeddin; denying as moot motion
to correct or supplement record on appeal4 filed by Appellant Nausheen Zainulabeddin. Each side shall bear
its own costs as to70 Notice of appeal filed by Nausheen Zainulabeddin. EOD: 6/20/17; USCA number: 17-
2083 ML. (JNB)
Thursday, June 08, 2017

79 appeal Designation of Record on Appeal Fri 2:55 PM
DESIGNATION of Record on Appeal (Directions to the Clerk) by Nausheen Zainulabeddin re71 Notice of
appeal.(AG)
Att: 1 Mailing Envelope
Monday, June 05, 2017
78 4 pgs notice Notice (Other) Tue 3:49 PM
NOTICE to the clerk of corrections needed of docketing errors - May 10, 2017 thru Mary 31, 2017 by
Nausheen Zainulabeddin.(AG)
Att: 1 Exhibit,
Att: 2 Exhibit,
Att: 3 Mailing Envelope
77 2 pgs order Order on motion to supplement Mon 9:12 AM
ORDER denying 63 Plaintiff's Motion to Supplement the Record on Appeal. Signed by Judge James S.
Moody, Jr. on 6/5/2017. (LN)
Wednesday, May 31, 2017

appeal Transmittal to USCA Wed 8:43 AM
TRANSMITTAL to USCA forwarding Order granting appeal in forma pauperis re71 Notice of appeal,60 Notice
of appeal USCA number: 17-11888 G and 17-12134 C. (BSN)
Tuesday, May 30, 2017

76 order Order on motion for leave to appeal in forma pauperis/affidavit of indigency Tue 5:37 PM
ORDER granting 72 Motion for leave to appeal in forma pauperis/affidavit of indigency. Signed by Magistrate
Judge Thomas G. Wilson on 5/30/2017. (Wilson, Thomas)
75 5 pgs respm Response in Opposition to Motion Tue 5:01 PM
RESPONSE in Opposition re63 MOTION to supplement Record on Appeal and support for Motion and
Declaration for leave to proceed In Forma Pauperis (issues on appeal, Dkt. 61) to Magistrate Judge filed by
University of South Florida Board of Trustees. (Mans, Lori)
appeal Transmittal to USCA Tue 10:21 AM

TRANSMITTAL to USCA forwarding Order granting In Forma Pauperis re60 Notice of appeal USCA number:
17-12134 C. (BSN)

73 56 pgs appeal Transmittal of initial appeal package Wed 3:18 PM
TRANSMITTAL of initial appeal package to USCA consisting of copies of notice of appeal, docket sheet,
order/judgment being appealed, and motion, if applicable to USCA re70 Notice of appeal,71 Notice of appeal.
(KMM)
appeal Transmittal to USCA Wed 2:47 PM

TRANSMITTAL to USCA forwarding Order granting appeal in forma pauperis re44 Notice of appeal USCA
number: 17-11888 G. (BSN)
74 4 pgs notice Notice (Other) Wed 3:23 PM
DIRECTIONS TO THE CLERK by Nausheen Zainulabeddin. (BSN)
68 order Order on motion for leave to appeal in forma pauperis/affidavit of indigency Tue 6:02 PM
Monday, May 22, 2017

72 motion Appeal in forma pauperis/affidavit of indigency Wed 3:10 PM
MOTION for leave to appeal in forma pauperis/affidavit of indigency by Nausheen Zainulabeddin. (KMM)
71 2 pgs appeal Notice of appeal Wed 3:09 PM
NOTICE OF APPEAL to USCA as to66 Order on Motion for Taxation of Costs by Nausheen Zainulabeddin.
Filing fee not paid. (KMM)
70 2 pgs appeal Notice of appeal Wed 3:07 PM
NOTICE OF APPEAL to Federal Circuit as to42 Order on motion for summary judgment,54 Order on Motion for
ReconsiderationOrder on motion for recusal by Nausheen Zainulabeddin. Filing fee not paid.(KMM)
Att: 1 2 pgs Petition for Review
69 16 pgs notice Notice (Other) Wed 3:03 PM
Directions to the Clerk, by Nausheen Zainulabeddin (KMM)
67 1 pgs misc Bill of costs Mon 8:30 AM
BILL OF COSTS taxed against Plaintiff in the amount of $5,382.15. Signed by Deputy Clerk. (AD)
Friday, May 19, 2017

66 7 pgs order Order on Motion for Taxation of Costs Fri 10:56 AM
ORDER: Defendant's Motion to Tax Costs 55 is granted in part and denied in part as explained herein.
Defendant is entitled to $5,382.15 in costs. The Clerk of Court is directed to enter a Bill of Costs in the amount
of $5,382.15 in favor of Defendant and against Plaintiff. Signed by Judge James S. Moody, Jr. on 5/19/2017.
(LN)

65 misc Certificate of interested persons and corporate disclosure statement Thu 10:05 AM
CERTIFICATE of interested persons and corporate disclosure statement re3 Related case order and track 2
notice by Nausheen Zainulabeddin. (BSN)
64 14 pgs respm Response in Opposition to Motion Thu 10:03 AM
RESPONSE in Opposition re55 MOTION for Taxation of Costs with Verified Bill of Costs and Supporting
Memorandum of Law filed by Nausheen Zainulabeddin.(BSN)
Att: 1 19 pgs Exhibit A-E,
Att: 2 99 pgs Exhibit F,
Att: 3 45 pgs Exhibit G,
Att: 4 55 pgs Exhibit H,

Att: 5 3 pgs Exhibit,

Att: 7 2 pgs Exhibit
63 19 pgs motion Supplement Tue 3:55 PM
MOTION to supplement Record on Appeal and support for Motion and Declaration for leave to proceed In
Forma Pauperis (issues on appeal, Dkt. 61) to Magistrate Judge by Nausheen Zainulabeddin.(BSN)
Att: 1 38 pgs Exhibit A,

Att: 2 101 pgs Exhibit 1,




Att: 13 139 pgs Exhibit 12

62 15 pgs appeal Transmittal of initial appeal package Thu 10:52 AM
order/judgment being appealed, and motion, if applicable to USCA re60 Notice of appeal. (BSN)
61 5 pgs motion Appeal in forma pauperis/affidavit of indigency Thu 10:44 AM
MOTION for leave to appeal in forma pauperis/affidavit of indigency by Nausheen Zainulabeddin.(BSN)

Motions referred to Magistrate Judge Thomas G. Wilson.
60 2 pgs appeal Notice of appeal Thu 10:43 AM
NOTICE OF APPEAL as to 57 Order on motion to stay,54 Order on Motion for Reconsideration Order on
motion for recusal by Nausheen Zainulabeddin. Filing fee not paid. (BSN)
59 2 pgs appeal Designation of Record on Appeal Tue 4:58 PM
DESIGNATION (Directions to the Clerk) of Record on Appeal by Nausheen Zainulabeddin re44 Notice of
appeal(AG)
Att: 1 12 pgs Exhibit A
Friday, May 05, 2017

appeal Transmittal to USCA Fri 8:11 AM
TRANSMITTAL to USCA forwarding ORDER granting Motion for leave to appeal in forma pauperis/affidavit of
indigency re44 Notice of appeal USCA number: 17-11888 G. (KMM)
Thursday, May 04, 2017

58 order Order on motion for leave to appeal in forma pauperis/affidavit of indigency Thu 4:21 PM
57 order Order on motion to stay Thu 1:57 PM

ENDORSED ORDER denying as moot 56 motion to stay. Signed by Judge James S. Moody, Jr. on 5/4/2017.
(LN)
56 16 pgs motion Stay Thu 10:57 AM
MOTION to stay documents re48 ,49 ,50 and51 pending appeal by Nausheen Zainulabeddin.(BSN)
55 6 pgs motion Taxation of Costs Wed 5:26 PM
MOTION for Taxation of Costs with Verified Bill of Costs and Supporting Memorandum of Law by University of
South Florida Board of Trustees.(Mans, Lori) Motions referred to Magistrate Judge Thomas G. Wilson.
Att: 1 26 pgs Exhibit Motion to Tax Costs Exhibit A
54 3 pgs order Order on Motion for Reconsideration Order on motion for recusal Wed 1:04 PM
ORDER denying 48 Motion for Reconsideration; denying 50 Motion for Recusal. Signed by Judge James S.
Moody, Jr. on 5/3/2017. (LN)
53 order Order on Motion to Continue Wed 11:18 AM

ENDORSED ORDER denying 51 Motion to Continue. Signed by Judge James S. Moody, Jr. on 5/3/2017. (LN)
52 order Order on Motion to Withdraw as Attorney Wed 11:17 AM

ENDORSED ORDER granting 47 Motion to Withdraw as Attorney. Attorney Stanley Robert Apps terminated.
Pro se Plaintiff's address of record is 4409 W. Varn Avenue, Tampa, FL 33616. Signed by Judge James S.
Moody, Jr on 5/3/2017. (LN)
51 4 pgs motion Continue Wed 10:49 AM
MOTION to Continue by Nausheen Zainulabeddin. (BSN)
50 23 pgs motion Recusal Tue 12:48 PM
MOTION for Recusal by Nausheen Zainulabeddin.(BSN)
Att: 1 70 pgs Exhibit A-F
49 13 pgs misc Affidavit Tue 12:47 PM
AFFIDAVIT of Nausheen Zainulabeddin re:48 MOTION for Reconsideration re43 Judgment by Nausheen
Zainulabeddin. (BSN)
48 26 pgs motion Reconsideration Tue 12:46 PM
MOTION for Reconsideration re43 Judgment by Nausheen Zainulabeddin.(BSN)
Att: 1 60 pgs Exhibit 1-14,

Att: 4 129 pgs Exhibit 44-57
Thursday, April 27, 2017
47 3 pgs motion Withdraw as Attorney Thu 7:58 PM
MOTION for Stanley R. Apps to withdraw as attorney for the Plaintiff, Nausheen Zainulabeddin, based upon
her election to proceed pro se by Stanley Robert Apps. (Apps, Stanley) Motions referred to Magistrate Judge
Thomas G. Wilson.
46 64 pgs appeal Transmittal of initial appeal package Thu 9:41 AM
order/judgment being appealed, and motion, if applicable to USCA re44 Notice of appeal. (BSN)
Wednesday, April 26, 2017
45 5 pgs motion Appeal in forma pauperis/affidavit of indigency Thu 9:14 AM

MOTION for leave to appeal in forma pauperis/affidavit of indigency by Nausheen Zainulabeddin.(BSN)
Motions referred to Magistrate Judge Thomas G. Wilson.
44 2 pgs appeal Notice of appeal Thu 9:13 AM
NOTICE OF APPEAL as to42 Order on motion for summary judgment by Nausheen Zainulabeddin. Filing fee
not paid. (BSN)
Thursday, April 20, 2017

43 2 pgs misc Judgment Thu 9:07 AM
JUDGMENT in favor of University of South Florida Board of Trustees against Nausheen Zainulabeddin (Signed
by Deputy Clerk) (BSN)
42 30+ pgs order Order on motion for summary judgment Wed 4:07 PM
ORDER: Defendant's Motion for Summary Judgment (Doc. 22) is granted. The Clerk of Court is directed to
enter final judgment in favor of Defendant and against Plaintiff. After entry of final judgment, the Clerk of Court
is directed to close this case and terminate any pending motions as moot. Signed by Judge James S. Moody,
Jr. on 4/19/2017. (AD)
Friday, March 24, 2017
41 5 pgs respm Memorandum in opposition Fri 12:18 PM
MEMORANDUM in opposition re37 Reply to Response to Motion Plaintiff's Surreply to Defendant's Reply to
Plaintiff's Response in Opposition to Defendant's Motion for Summary Judgment filed by Nausheen
Zainulabeddin.(Apps, Stanley)
Att: 2 4 pgs Exhibit B
Wednesday, March 22, 2017
40 2 pgs adr Mediation report Wed 3:04 PM
MEDIATION report Hearing held on 3/22/2017. Hearing outcome: IMPASSE. (Shulman, Christopher)
Tuesday, March 21, 2017
39 order Order on Motion for Leave to File Tue 1:14 PM

ENDORSED ORDER granting 38 Motion for Leave to File Surreply. Surreply shall be filed within seven (7) days
of the date of this Order. Signed by Judge James S. Moody, Jr. on 3/21/2017. (LN)
Saturday, March 18, 2017
38 3 pgs motion Leave to File Document Sat 2:57 AM
MOTION for leave to file Surreply of no more than 5 pages to Defendant's Reply Memorandum to Plaintiff's
Response in Opposition to Defendant's Motion for Summary Judgment by Nausheen Zainulabeddin. (Apps,
Stanley)
37 9 pgs respm Reply to Response to Motion Wed 2:00 PM
REPLY to Response to Motion re22 MOTION for summary judgment filed by University of South Florida Board
of Trustees. (Mans, Lori)
36 1 pgs order Order on Motion to Withdraw as Attorney Thu 5:27 PM
ORDER granting 35 Motion to Withdraw as Attorney and for Substitution of Counsel. Attorney J. Ray Poole,
Jr., terminated. Signed by Magistrate Judge Thomas G. Wilson on 3/8/2017. (DMS)
Tuesday, March 07, 2017
35 3 pgs motion Withdraw as Attorney Tue 5:00 PM
MOTION for J. Ray Poole to withdraw as attorney and for Substitution of Counsel and Supporting
Memorandum of Law by University of South Florida Board of Trustees. (Dickinson, John)
34 order Order on Motion for Leave to File Wed 3:43 PM

ENDORSED ORDER granting 33 Motion for Leave to File Reply. Reply is limited to 10 pages and shall be filed
within 14 days. Signed by Judge James S. Moody, Jr. on 3/1/2017. (LN)
33 3 pgs motion Leave to File Document Wed 2:28 PM
MOTION for leave to file Reply to Plaintiff's Response in Opposition to Defendant's Motion for Summary
Judgment by University of South Florida Board of Trustees. (Poole, J.)
Tuesday, February 28, 2017
32 order Order on motion to extend time Tue 9:16 AM

ENDORSED ORDER granting 31 Joint Motion to extend time to conduct Mediation until MARCH 22, 2017.
Signed by Judge James S. Moody, Jr. on 2/28/2017. (LN)
Monday, February 27, 2017
31 3 pgs motion Extend time Mon 4:23 PM
Joint MOTION to extend time to conduct Mediation until March 22, 2017 by Nausheen Zainulabeddin. (Apps,
Stanley)
Sunday, February 19, 2017
30 2 pgs notice Notice (Other) Sun 6:40 PM
NOTICE by Nausheen Zainulabeddin re27 Response in Opposition to Motion,23 Notice (Other) Notice of Filing
COMPLETE Deposition Transcript of Dr. Ambuj Kumar, M.D., including Exhibit omitted by Defendant(Apps,
Stanley)
Att: 1 86 pgs Exhibit Deposition of Ambuj Kumar, MD,



NOTICE by Nausheen Zainulabeddin re27 Response in Opposition to Motion Notice of Filing Deposition
Transcript of Dr. Steven Specter, Ph.D.(Apps, Stanley)
Att: 1 182 pgs Exhibit Deposition of Steven Specter,




NOTICE by Nausheen Zainulabeddin re27 Response in Opposition to Motion Notice of Filing Affidavit of the
Plaintiff in support of Plaintiff's Response in Opposition to Summary Judgment(Apps, Stanley)
Att: 1 27 pgs Affidavit of Nausheen Zainulabeddin,

27 20 pgs respm Response in Opposition to Motion Sun 4:13 PM
RESPONSE in Opposition re22 MOTION for summary judgment with supporting Memorandum of Law filed by
Nausheen Zainulabeddin. (Apps, Stanley)
26 12 pgs misc Statement of undisputed facts Sun 4:11 PM
STATEMENT of undisputed facts re:22 MOTION for summary judgment Statement of DISPUTED MATERIAL
FACTS, precluding entry of summary judgment by Nausheen Zainulabeddin..(Apps, Stanley)
Att: 2 5 pgs Exhibit B,
Att: 3 9 pgs Exhibit C
Thursday, February 09, 2017
25 2 pgs misc Notice of withdrawal of motion Thu 4:00 PM
NOTICE of withdrawal of motion by Nausheen Zainulabeddin re19 MOTION to Take Deposition from Dr.
Joanne Valeriano-Marcet Subsequent to Close of Discovery, with Incorporated Statement of Good Cause
Wherefore filed by Nausheen Zainulabeddin (Apps, Stanley)
Monday, February 06, 2017
24 order Order on motion to extend time Mon 9:49 AM

ENDORSED ORDER granting 21 Joint Motion to extend time to conduct mediation. Extension granted through
MARCH 1, 2017. Signed by Judge James S. Moody, Jr. on 2/6/2017. (LN)
Saturday, February 04, 2017
23 2 pgs notice Notice (Other) Sat 5:03 PM
NOTICE by University of South Florida Board of Trustees re22 MOTION for summary judgment (Poole, J.)
Att: 1 120 pgs Exhibit Deposition of Nausheen Zainulabeddin,
Att: 2 115 pgs Exhibit Deposition of Nausheen Zainulabeddin Part 2,
Att: 3 87 pgs Exhibit Deposition of Dr. Deborah Roth and Exhibits Thereto,
Att: 4 87 pgs Exhibit Deposition of Dr. Ambuj Kumar and Exhibits Thereto,
Att: 5 73 pgs Exhibit Deposition of Dr. Saundra Stock,

Att: 6 61 pgs Exhibit Deposition of Dr. Saundra Stock and Exhibits Thereto Part 2
22 25 pgs motion Summary judgment Sat 3:49 PM
MOTION for summary judgment by University of South Florida Board of Trustees. (Poole, J.)
Friday, February 03, 2017
21 3 pgs motion Extend time Fri 8:45 PM
Joint MOTION to extend time to Complete Mediation by University of South Florida Board of Trustees. (Poole,
J.)
Thursday, February 02, 2017
20 2 pgs order Order on Motion to Take Deposition Thu 5:30 PM
ORDER granting 19 Motion to Take Deposition of Dr. Joanne Valeriano-Marcet on February 3, 2017. See Order
for further details. Signed by Magistrate Judge Thomas G. Wilson on 2/2/2017. (DMS)
Wednesday, February 01, 2017
19 6 pgs motion Take Deposition Wed 4:43 PM
MOTION to Take Deposition from Dr. Joanne Valeriano-Marcet Subsequent to Close of Discovery, with
Incorporated Statement of Good Cause Wherefore by Nausheen Zainulabeddin.(Apps, Stanley)
Tuesday, December 13, 2016
18 2 pgs order Order appointing mediator/scheduling mediation Tue 9:39 AM
ORDER appointing Christopher M. Shulman as mediator in this action. Mediation Conference set for
FEBRUARY 10, 2017. Signed by Judge James S. Moody, Jr. on 12/13/2016. (LN)
Friday, December 09, 2016
17 2 pgs adr Notice of selection of mediator Fri 10:32 PM
NOTICE OF SELECTION of Christopher M. Shulman as mediator by University of South Florida Board of

Trustees. (Poole, J.)
Wednesday, November 30, 2016
16 order Order on Motion for Extension of Time to Complete Discovery Wed 9:53 AM
ENDORSED ORDER granting 15 the Parties' Joint Motion for Extension of Time to Complete Discovery.
Discovery shall be completed by February 1, 2017. Dispositive Motions are now due February 4, 2017. All
other dates in the Case Management Order remain unchanged. Signed by Judge James S. Moody, Jr on
11/30/2016. (RWL)
Tuesday, November 29, 2016
15 4 pgs motion Extension of Time to Complete Discovery Tue 3:53 PM
Joint MOTION for Extension of Time to Complete Discovery by University of South Florida Board of Trustees.
(Poole, J.)
Wednesday, November 09, 2016
14 5 pgs order Order referring case to mediation Wed 1:55 PM
ORDER referring case to mediation and directing selection of a mediator on or before 12/9/2016. Mediation
shall be conducted on or before 3/1/2017. Signed by Judge James S. Moody, Jr on 11/9/2016. (LN)
Friday, September 09, 2016

13 order Order on Motion to Withdraw as Attorney Fri 9:34 AM
ENDORSED ORDER granting 12 Motion to Withdraw as Attorney. Attorney John Sikes Gibbs terminated.
Attorney John F. Dickinson is directed to file a Notice of Appearance in this case. Signed by Judge James S.
Moody, Jr on 9/9/2016. (LN)
Thursday, September 08, 2016
12 3 pgs motion Withdraw as Attorney Thu 3:57 PM
Unopposed MOTION for Gibbs to withdraw as attorney by University of South Florida Board of Trustees.
(Poole, J.)
11 32 pgs answer Answer to Complaint Wed 1:48 PM
ANSWER and affirmative defenses to Complaint by University of South Florida Board of Trustees.(Gibbs, John)
10 9 pgs order Order on motion to dismiss Wed 11:18 AM
ORDER: Defendant's Motion to Dismiss and For More Definite Statement 4 is DENIED. Defendant shall file an
answer within fourteen (14) days of the entry of this order. Signed by Judge James S. Moody, Jr. on 4/13/2016.
(LN)
9 3 pgs order Case management and scheduling order Wed 10:23 AM
CASE MANAGEMENT AND SCHEDULING ORDER: Discovery due by 1/3/2017, Dispositive motions due by
2/1/2017, Pretrial Conference set for TUESDAY, MAY 2, 2017 at 9:15 AM in Tampa Courtroom 17 before Judge
James S. Moody Jr., Jury Trial set for JUNE 2017 trial term in Tampa Courtroom 17 before Judge James S.
Moody Jr. Signed by Judge James S. Moody, Jr. on 4/6/2016. (AR)
Monday, April 04, 2016
8 misc Case Management Report Mon 2:02 PM

CASE MANAGEMENT REPORT. (Gibbs, John)

7 notice Notice of pendency of related cases Wed 5:23 PM
NOTICE of pendency of related cases re3 Related case order and track 2 notice per Local Rule 1.04(d) by
Nausheen Zainulabeddin. Related case(s): yes (Apps, Stanley)
6 13 pgs respm Response in Opposition to Motion Wed 4:46 PM
RESPONSE in Opposition re4 MOTION to Dismiss Plaintiff's Complaint and For More Definite Statement and
Supporting Memorandum of Law filed by Nausheen Zainulabeddin.(Apps, Stanley)
Friday, March 25, 2016
5 notice Notice of pendency of related cases Fri 1:15 PM

NOTICE of pendency of related cases per Local Rule 1.04(d) by University of South Florida Board of Trustees.
Related case(s): No (Gibbs, John)
Thursday, March 24, 2016
4 11 pgs motion Dismiss Thu 2:15 PM
MOTION to Dismiss Plaintiff's Complaint and For More Definite Statement and Supporting Memorandum of
Law by University of South Florida Board of Trustees. (Gibbs, John)
Monday, March 21, 2016

3 order Related case order and track 2 notice Mon 4:27 PM
RELATED CASE ORDER AND NOTICE of designation under Local Rule 3.05 - track 2. Issued by Deputy Clerk
on 3/21/2016. (AR)
Thursday, March 17, 2016

2 cmp Complaint Fri 12:03 PM
COMPLAINT against University of South Florida Board of Trustees with Jury Demand filed by Nausheen
Zainulabeddin . Originally filed in state court on 1/22/16.(BSN) Modified on 3/18/2016 (BSN)
Att: 1 Exhibit
1 6 pgs notice Notice of Removal Fri 12:01 PM
NOTICE OF REMOVAL from 13th Judicial Circuit in and for Hillsborough County, Florida, case number 16-CA-
000669 filed in State Court on 1/22/16. Filing fee $ 400, receipt number tpa 035597 filed by University of
South Florida Board of Trustees.(BSN)

Att: 4 2 pgs Civil Cover Sheet
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Case 8:16-cv-00637-JSM-TGW Document 38 Filed 03/18/17 Page 1 of 3 PageID 1647
A-1437
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
NAUSHEEN ZAINULABEDDIN,
Plaintiff,
v. Case No.: 8: 16-cv-00637-JSM-TGW
UNIVERSITY OF SOUTH FLORIDA

BOARD OF TRUSTEES,
Defendant.
______________________________________/
PLAINTIFF’S MOTION FOR LEAVE TO FILE SURREPLY

TO DEFENDANT’S REPLY MEMORANDUM
TO PLAINTIFF’S RESPONSE IN OPPOSITION
TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Pursuant to Rules 3.01(c) and (d) of the Local Rules for the United States
District Court for the Middle District of Florida, the Plaintiff, Nausheen
Zainulabeddin, by and through undersigned counsel, humbly requests Leave of the
Court to file a Surreply of no more than five (5) pages to Defendant’s Reply to
Plaintiff’s Response in Opposition to Defendant’s Motion for Summary Judgment. A
Surreply will benefit the Court for the following reasons:
1. Defendant obtained leave to file a Reply based on the claim that Plaintiff’s
Response in Opposition to Defendant’s Motion for Summary Judgment
contains “misstatements of law, as well as misstatements and
mischaracterizations of fact.” See Dkt. 33 at 1.
2. Defendant’s Reply fails to show any such alleged misstatements, and instead
attempts to controvert the extensive evidence presented by Plaintiff with bare
factual allegations unsupported by citations to the record. See, e.g., Dkt. 37 at

A-1438
6-8 (controverting Plaintiff’s disability discrimination claim with bare
allegations unsupported by record citations). Further, rather than showing
“misstatements of law,” the Reply urges the Court to follow the wrong law, by
citing only to Florida law on the issue of equitable estoppel, even though
federal law governs on this procedural issue. See Dkt. 37 at 2-3.
3. Defendant’s Reply sets forth multiple arguments for the first time, including:
a. the frivolous argument that “any purported misconduct that post-dated the
initiation of this action could not possibly support [Plaintiff’s] claim of
equitable estoppel” [Dkt. 37 at 3], which ignores the reasonable inferences
that can be drawn when a Defendant’s Corporate Designee makes materially
untrue assertions at deposition, such as the inference that the same person
likely misrepresented the same material facts on prior occasions as well;
b. the frivolous argument that no common law duty of care exists to support
Plaintiff’s negligent misrepresentation claim [see Dkt. 37 at 5];
c. the frivolous argument that Plaintiff “abandoned her negligent
representation claim by failing to address the merits thereof” [see Dkt. 37 at
6]; and
d. the argument that summary judgment should be granted on Plaintiff’s
disability discrimination claim because it is “implausible” (which Defendant
asserts while simultaneously failing to address the extensive evidence
presented by Plaintiff) [see Dkt. 37 at 6-7].
4. If allowed to file a Surreply, Plaintiff will respond to the new arguments.
MEMORANDUM OF LAW
A-1439
A Court may allow filing of a Surreply when the opposing party sets forth new
arguments or new factual matters in its Reply. Lewis v. Rumsfeld, 154 F. Supp. 2d 56,
61 (D.D.C. 2001); Clark v. Mason, No. C04-1647C, 2005 WL 1189577, at * 3 (W.D. Wash.
May 19, 2005). If a District Court denies a Motion to File Surreply, the court should
ignore the arguments made for the first time in the Reply. Flynn v. Veazey Constr.
Corp., 310 F. Supp. 2d 186, 189 (D.D.C. 2004). In this instance, the honorable Court
should grant Plaintiff an opportunity to address Defendant’s new arguments.
Respectfully submitted on this 18th day of March, 2017.
/s/ Stanley R. Apps
Stanley R. Apps, Esq.

FL Bar. No. 0108868
1950 Elkhorn Ct., Unit 147
San Mateo, CA 94403
(310) 709-3966
stan.apps@gmail.com
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I hereby certify that on March 18, 2017, I electronically filed the

foregoing with the Clerk of Court by using the CM/ECF system, which will
send a Notice of Electronic Filing to all counsel of record herein.
/s/ Stanley R. Apps
LOCAL RULE 3.01(g) CERTIFICATION
I certify that I have conferred with counsel for Defendant, who advise that they
oppose the Relief requested by this Motion.
/s/ Stanley R. Apps

A-1440
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
Plaintiff,
v. Case No.: 8:16-cv-00637-JSM-TGW

BOARD OF TRUSTEES,
Defendant.
/
MEDIATION REPORT
A mediation conference was held on March 22, 2017, and the results of
that conference are indicated below:
(a) The following individuals, parties, corporate representatives, and/or

claims professionals attended and participated in the mediation conference:
All individual parties and their respective trial counsel
Designated corporate representatives.
Required claims professionals.
(b) The following individuals, parties, corporate representatives, and/or
claims professionals failed to appear and/or participate as ordered:
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
______________________________________________________________
MEDIATION REPORT Page 1

A-1441
(c) The outcome of the mediation conference was:
_____ The case has been completely settled.
_____ The case has been partially resolved and lead counsel has
been instructed to file a joint stipulation regarding those
claims which have been resolved within ten (10) days. The
following issues remain for this Court to resolve:
_____ The conference was continued with the consent of all

parties and counsel, for the sole purpose of preparing
comprehensive settlement documents. Mediation Reports
will be filed after the final settlement is complete.
The parties have reached an impasse.
CERTIFICATE OF CM/ECF ELECTRONIC FILING &

I HEREBY CERTIFY that this Mediator’s Report was electronically filed via the
District Court’s CM/ECF electronic filing system (“CM/ECF”) on March 22, 2017,
which will forward a copy to counsel of record.
__________________________
Christopher M. Shulman, Mediator
5111 Ehrlich Road, Suite 120
Tampa, FL 33624
(Ph) 813.935.9922
(Fx) 813.333.7326
(Em) chris@shulmanadrlaw.com
MEDIATION REPORT Page 2

A-1442
TAMPA DIVISION
Plaintiff,

BOARD OF TRUSTEES,
Defendant.
______________________________________/
PLAINTIFF’S SURREPLY TO DEFENDANT’S

REPLY MEMORANDUM TO PLAINTIFF’S
RESPONSE IN OPPOSITION TO DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
Pursuant to this Court’s Order dated March 21, 2017 [Dkt. 39], the Plaintiff,
Nausheen Zainulabeddin (“Zainulabeddin”), by and through undersigned counsel,
hereby files her Surreply to Defendant’s Reply Memorandum to Plaintiff’s Response in
Opposition to Defendant’s Motion for Summary Judgment (hereinafter “Reply”), and
further states as follows:
USF MISREPRESENTS THE DOCTRINE OF EQUITABLE ESTOPPEL
Defendant, the University of South Florida Board of Trustees (“USF”),
describes the doctrine of equitable estoppel incorrectly in its Reply. USF states that
Zainulabeddin is required to show that “USF engaged in fraudulent conduct that
delayed Plaintiff from filing suit . . . for the entire duration of the statute of limitations
period.” Reply at 2 (emphasis in original). However, there is no such “entire duration”
requirement to evoke equitable estoppel, and none of the three cases cited by USF
supports USF’s theory. Instead, the three cases cited by USF are a classic “red
! 1!
A-1443
herring” string cite that offers no support for the legal proposition asserted by USF.
The first, Rubio v. Archdiocese of Miami, Inc., 114 So. 3d 279, 282 (Fla. 3d DCA 2013),
holds that equitable estoppel does not apply in a case where the Plaintiff “fails to
allege any acts of the [Defendant] toward [Plaintiff] that caused him to delay filing his
claims.” There is no language whatsoever relating to a requirement that a Defendant’s
misleading acts must continue for the “entire duration” of the limitations period,
because no such legal issue arises in Rubio.
Similarly, the second case cited by USF, Black Diamond Properties, Inc. v.
Haines, 69 So. 3d 1090, 1094 (Fla. 5th DCA 2011), holds that the doctrine of equitable
estoppel is not applicable when the Plaintiffs do not allege that they “failed to comply
with the statute of limitations because they relied on fraudulent representations by
Defendants that led them to delay filing suit.” Again, this is a case where equitable
estoppel did not apply because the Plaintiff did not allege any misleading act by
Defendant that caused Plaintiff to delay filing suit. Again, no language supports USF’s
theory that a Defendant’s misleading acts must continue for the “entire duration” of
the limitations period.
The third case cited by USF, Delco Oil., Inc. v. Pannu, 856 So. 2d 1070, is once
again entirely inapposite. Delco holds that equitable estoppel does not apply when the
record contains no evidence that the Defendant “willfully caused [Plaintiff] to believe
in a certain state of things” and thereby “lulled” the Plaintiff into a disadvantageous
legal position and delayed Plaintiff from filing suit. Delco, 856 So. 2d at 1073 (citing
Major League Baseball v. Morsani, 790 So.2d 1071 (Fla.2001) and Florida Dep't. of
Health & Rehabilitative Servs. v. S.A.P., 835 So.2d 1091 (Fla.2002)).
! 2!
A-1444
In the instant case, Zainulabeddin believed she had been legally wronged by
USF, acting by and through Specter, when Specter misinformed her of the contents of
the Neuropsychological Evaluation that USF required her to undergo. But she was
lulled into a disadvantageous legal position and did not attempt to file suit because
Specter said he would correct his error by causing her to be readmitted to the Medical
School. See Zainulabeddin’s Response in Opposition [Dkt. 27] (“Response”) at 8-11;
Affidavit of Nausheen Zainulabeddin [Dkt. 28-1] (“Affidavit”) at 12-17. She did not know
that Specter would later deny to his colleagues at USF the wrongdoing that he
privately admitted to her, or that USF would cause her to be expelled again under false
pretenses a year later. Even after her second expulsion, Specter continued to trick
Zainulabeddin by volunteering to be her advocate so that he could cause her to remove
references to his early error from her submissions to the University related to her
Petition for Readmission. See Response at 9-11; Affidavit at 13-14; and see Draft Appeal
Letter by Zainulabeddin with Editorial Changes by Specter, dated April 19, 2013,
attached hereto as Exhibit A; email chain between Specter and Zainulabeddin dated
April 16 and 17, 2013, in which both Specter and Zainulabeddin refer to Zainulabeddin
as Zainulabeddin’s “advocate,” attached hereto as Exhibit B.
Rather than addressing Zainulabeddin’s evidence of misconduct, USF instead
chooses to misrepresent the law of equitable estoppel in its Reply. This Court must
reject USF’s inaccurate and excessively restrictive view of the doctrine of equitable
estoppel, especially since USF provides no supporting case law that is on point.
USF’s Reply also argues that “any purported misconduct that post-dated the
initiation of this action could not possibly support [Plaintiff’s] claim of equitable
estoppel.” Reply at 3. This argument is absurd considering the recent misconduct
! 3!
A-1445
consists of untrue statements at deposition by Defendant’s employees, referring to
events that took place within the limitations period. Most egregiously, Specter made
false statements at his deposition about USF’s reason for readmitting Zainulabeddin in
February 2012, which USF must know to be false since they contradict USF’s account
in its Answers to Interrogatories. Nonetheless USF refuses to correct its self-
contradiction, even though Specter made the provably false statements in the role of
USF’s Corporate Designee. See Response at 8-10; Affidavit at 14-17. This is not merely
misconduct by Specter. It is ongoing misconduct by USF and by its attorneys, who
have violated their duty of candor to the Court by offering two mutually contradictory
accounts of the same event and refusing to correct the discrepancy. USF’s failure to
address this issue in its Reply suggests USF is aware of the misconduct and hopes to
evade the consequences through misrepresentation of the equitable estoppel doctrine.
ZAINULABEDDIN JUSTIFIABLY RELIED ON USF’S REPRESENTATIONS

CONCERNING THE NEUROPSYCHOLOGICAL EVALUATION
USF REQUIRED HER TO UNDERGO
USF’s reply asserts that Zainulabeddin abandoned her negligent
misrepresentation claim by failing to defend its merits in her Response. This is not
true because USF offered no legally cognizable challenge to the claim. USF claimed
that Zainulabeddin cannot show justifiable reliance on Specter’s misrepresentations
about the neuropsychological evaluation that USF required her to undergo. But USF
appointed Specter to direct Zainulabeddin related to this requirement. See Affidavit
Ex. C [Dkt. 28-2 at 9] (letter from USF to Zainulabeddin stating that Specter would
explain the requirement, advise Zainulabeddin regarding the requirement, and assist
her regarding the requirement). Notably, both persons who spoke to Zainulabeddin
about the results of her evaluation (Dr. Mike Schoenberg and Specter) were acting as
! 4!
A-1446
USF’s representatives and employees, but Specter was specifically assigned to explain,
advise and assist. As such, there is no legal grounds for USF to claim it is not liable
because Zainulabeddin relied on false statements of one of its representatives rather
than speaking to the other. Zainulabeddin did not address this argument in her
Respense because she lacked space and viewed it as entirely without merit.
USF CONTROVERTS THE EVIDENCE PRESENTED BY ZAINULABEDDIN,

BUT OFFERS NO LEGALLY COGNIZABLE BASIS FOR SUMMARY JUDGMENT
USF’s Reply urges the Court to enter Summary Judgment on Zainulabeddin’s
discrimination and retaliation claims by controverting the evidence presented by
Zainulabeddin. See Reply at 6-9. Obviously, this is not proper grounds for summary
judgment, especially since USF’s controverting “evidence” is not supported by
citations from the record and, in several cases, is false, such as the false allegation that
Zainulabeddin “simply failed to show up to take a test,” something which simply never
happened and which Zainulabeddin categorically denies. See Reply at 7.
Zainulabeddin lacks space to reiterate her evidence of discrimination and
retaliation here, but see Response at 3-6; 8-11; 18-20 and record citations therein.
Respectfully submitted on this 24th day of March, 2017.
/s/ Stanley R. Apps

FL Bar. No. 0108868
San Mateo, CA 94403
(310) 709-3966
stan.apps@gmail.com
Attorney for Plaintiff
I hereby certify that on March 24, 2017, I electronically filed the

! 5!
Case 8:16-cv-00637-JSM-TGW Document 41-1 Filed 03/24/17 Page 1 of 4 PageID 1657
A-1447
Exhibit A
A-1448
April 19, 2013
To: Dr. Klasko, and Appeals Committee
From: Nausheen Zainulabeddin Windows User 4/23/2013 9:26 AM
Deleted: Senior Faculty and Medical Student
Council
Thank You Dr. Klasko, and Appeals Committee for giving me the opportunity to
appeal my dismissal from Morsani College of Medicine. In my last appeal to APRC on Windows User 4/23/2013 9:25 AM
Deleted: Senior faculty and medical student
April 4th, I discussed the extenuating circumstances that impeded my optimal
council
performance on examinations that contributed to my dismissal. I discussed the two
immediate family member deaths in the family within 3 months and adverse reactions of
my ADHD medications due to tragic life events. I also discussed the coping strategies
and plan associated that I have been working with my physician to prevent such
reoccurrences by changing the dosage of the medication regimen, maintaining healthy
lifestyle and meeting with my physician every 3 weeks to monitor progress. APRC
upheld the decision of dismissal since they felt my clinical reasoning was not as expected
based on below-average evaluations from my doctoring preceptor and failure of two Windows User 4/23/2013 8:57 AM
stations on my final clinical exam. Deleted: withheld
Since the last APRC meeting I have taken proactive steps to correct the academic Windows User 4/23/2013 8:58 AM
Deleted: for due
deficiencies. It has come to my recent attention (Can you cite a reliable source for trhis?
Windows User 4/23/2013 8:58 AM
It would make a stronger case) that most students with ADHD have difficulty picking up
Deleted: to
“nonverbal cues” that is innate for most students. They have to be explicitly given
instructions on what is considered “norm”. As a first generation college student from a
Deleted: such factors
non-English speaking lower socioeconomic status family, the “norm” of the culture of
medicine is a new phenomenon. Adjusting to culture with already a disadvantaged state
may have contributed to me being misunderstood with my doctoring preceptor earlier in
the course and hence impeded my educational experience. I learned in medical school
that ADHD students have difficult time coping with tragic events and I believe that
further prevented my learning experience. Acknowledging this deficiency was the first
step in taking the initiative to setting a strong foundation for remediating doctoring
successfully.
Learning the “hidden syllabus” at Wards requires keen aptitude toward observing
non-verbal cues. It not only enhances patient-doctor relationship, but the flow within the
system. During my remediation, I learned how I learn that will enable me to achieve a
comparable baseline with my classmates. In the last month since the APRC meeting, I Windows User 4/23/2013 9:01 AM
have learned effective strategies such as techniques from faculty members and Dr. Deleted: at
Specter how to handle “forthcoming bad evaluation” early, how to pick up small details
Deleted: the
in physical examination skills session, how to handle criticism effectively and make
appropriate assessment to correct such factors. I also have learned to use optimal
Deleted: fellow
resources provided by MCOM to resolve conflicts in appropriate manner by utilizing 4th
year student tutors to learn history/physical exam skills, seek counseling from Dr.
Skalkos MCOM Office of Student and Resident Professional Development when a
conflict arises and work with Mr. Phil Tetrault, learning strategy specialist for USMLE
board preparation. The remediation enabled me to understand my strengths and
weaknesses of my learning disability, which will enable me to successfully pass 3rd year
clerkships consistently.
A-1449
My clinical evaluations from the remediation have shown an upward trend in
progress to be at the level of a beginning of 3rd year student. The 4-week doctoring Windows User 4/23/2013 9:15 AM
Deleted:
remediation consisted of first two weeks of standardized patient exams at CACL and
another two weeks examining patients at TGH and the Haley VA. The first two weeks,
with the help of tutors and working closely with doctoring course directors I
demonstrated the ability to perform a history and physical examination successfully and
the ability to communicate effectively with patients and colleagues. The following two
weeks I have been working with Dr. Daniel Poetter at the HaleyVA seeing patients in an
inpatient setting, the feedback from Dr. Poetter indicates that I have demonstrated an
upward trend in my clinical reasoning to ask the proper questions, perform an appropriate Windows User 4/23/2013 9:16 AM
Deleted: have
examination for the chief compliant, assess possible differential diagnoses, extract the
ability to formulate a possible plan and assessment and write the medical documentation. Windows User 4/23/2013 9:17 AM
Deleted: right
Since my admission to MCOM, I have had many personal, family and academic
struggles that impeded my optimal performance. After being dismissed from MCOM last
Deleted: i
year, I decided to explore my previous diagnosis of ADHD and it has came to my
attention that I have strong diagnostic impressions of ADHD in my Neuropsychological
Deleted: admittance
evaluation. This report was recently explored and evaluated by myself and by Ms.
Deborah McCarthy in Student Disability Services, along with Dr. Specter on Feb. 6,
2012. I attribute my consistent low performance in medical school to untreated ADHD.
This is the first academic year, 2012-2013, where I have had appropriate treatment and
testing accommodations for my learning disability. These conditions were not in place
prior to this year; hence my academic history at MCOM does not reflect my true potential
and capacity until this year.
At the end of the 2nd year I have had two significant family losses, a cousin with
whom I grew up and my grandmother. Due to the tragic events, I had to postpone
assignments, examinations and clinic visits which accumulated over time and prevented Windows User 4/23/2013 9:19 AM
Deleted: with
me from optimally performing on examinations and put me at risk for failing medical
school. However, I have successfully remediated all of the courses and passed the
benchmark set by Educational Affairs for the Comprehensive Basic Science Exam.
As a USF student for the past ten years, as an undergraduate, graduate and
medical student, I have learned from countless mentors, faculty and students. It has been
a humbling experience in medical school to have shared the pain of a seriously ill family
member - when my younger brother had kidney failure during my first year of medical
school. The crises continued to add up as I had a difficult breakup with a significant
other, experienced death of a cousin who was close to my age, and discovered my own Windows User 4/23/2013 9:21 AM
disability and experienced first-hand the difficulty of a patient coping with an illness. The Deleted: lost
experience holistically shapes my framework as an even more compassionate future

caregiver enabling me to fulfill the mission of USF Health MCOM. As we learned during
the first day of orientation, medicine is an art. There is sometimes no definitive right Windows User 4/23/2013 9:22 AM
answer as to the treatment, which will lead to a successful result. However, if we Deleted: in
effectively work together we can at least ensure success.

Please note that I am now confident in my abilities so that if in any circumstance I
do not pass USMLE Step 1 on the date recommended by the office of Student Affairs, I Windows User 4/23/2013 9:25 AM
will voluntarily withdraw from USF Morsani College of Medicine. I humbly ask Dr. Deleted: I also want to add that
Klasko, and Appeals Committee to give me the opportunity to complete my medical Windows User 4/23/2013 9:26 AM
education and enable me to continue my life-long dream of becoming a physician Deleted: Senior Faculty and Medical student
council
A-1450
Thank You
A-1451
Exhibit B
RE: Appeal Meeting - Zainulabeddin, Nausheen 7/13/16, 2:31 PM
RE: Appeal Meeting

A-1452
Zainulabeddin, Nausheen
Wed 4/17/2013 3:40 PM
To: Specter, Steven <sspecter@health.usf.edu>;
Yes, thats fine. Just want it at a date earlier than May 6th (since first two weeks are mandatory).
Thank You
Nausheen Zainulabeddin, MS II
USF Morsani College of Medicine
From: Specter, Steven

Sent: Wednesday, April 17, 2013 2:34 PM
To: Zainulabeddin, Nausheen
Subject: Re: Appeal Meeting
You still did not let me know if a date when I am away is acceptable to you. That may make it easier to
schedule sooner.
Sent from my iPhone

Steven Specter
On Apr 17, 2013, at 2:32 PM, "Zainulabeddin, Nausheen" <nzainula@health.usf.edu> wrote:
I am sorry Dr. Specter.

Sent: Wednesday, April 17, 2013 2:24 PM
I will handle when I return. It is not your place to make such determinations
Sent from my iPhone

Steven Specter
On Apr 17, 2013, at 2:16 PM, "Zainulabeddin, Nausheen" <nzainula@health.usf.edu> wrote:
https://outlook.office.com/owa/?viewmodel=ReadMessageItem&Item…wWuke%2FJAACMgQUzAAA%3D&IsPrintView=1&wid=67&ispopout=1&path= Page 1 of 4
Dear Dr. Specter, A-1453

Can Dr. Monroe or any other Dean proceed with setting up the meeting? I believe 15 days is
sufficient to get the process going.
Thank You

Sent: Tuesday, April 16, 2013 8:19 PM
I cannot promise that May 2 will work for others. Linda cannot do this I must as she
cannot explain what is being reviewed
Sent from my iPhone

Steven Specter
On Apr 16, 2013, at 8:02 PM, "Zainulabeddin, Nausheen" <nzainula@health.usf.edu>

wrote:
Ok May 2nd is fine. Also, you mentioned that if you are away that Linda can
arrange people. Is that possible? And you can be still be advocate on May 2nd and
still ensure to get people. I apologize for the inconvenience.
Thank You

Subject: RE: Appeal Meeting
I am sorry but that is unlikely. The only date is May 2. I will try but it might be
difficult to get people together on short notice since I am now away and cannot
work on this until Monday.
Steven Specter, Ph.D.

Associate Dean for Student Affairs
Professor, Molecular Medicine
University of South Florida College of Medicine
From: Zainulabeddin, Nausheen

To: Specter, Steven

A-1454
Is there anytime before May 6th where you can be available? I just don't want to
miss 2 week mandatory orientation.
Thank You

Nausheen,
I will not be available April 29 or May 3. I can try for those dates but I will not be
able to represent yuo as advocate and I am not sure who will fill that role. Is that
your preference?
Steven Specter, Ph.D.

Associate Dean for Student Affairs
Professor, Molecular Medicine
University of South Florida College of Medicine
From: Zainulabeddin, Nausheen

To: Specter, Steven
Subject: Appeal Meeting
Dear Dr. Specter,

First day of classes for 3rd year is May 6th. Is it possible to have the meeting
earlier? You said it can either be April 29th or May 3rd? Let me know what possible
days it can be before the first day of 3rd year. Since orientation is for 2 weeks and
I am required to go all of the days- that will still take away my studying time. Since
I took the CBSE and passed with 180, I should be given the opportunity to take it
at the date which gives me sufficient time to study for boards and reach my
potential. APRC decision for upholding their last appeal was not based on my
academics, but based on clinical skills as stated in the letter which I am working
towards solving as we discussed today.
Thank You
A-1455
TAMPA DIVISION
Plaintiff,
v. Case No: 8:16-cv-637-T-30TGW

BOARD OF TRUSTEES,
Defendant.
ORDER
THIS CAUSE comes before the Court upon Defendant's Motion for Summary
Judgment (Doc. 22), Plaintiff’s Response in Opposition (Doc. 27), Defendant’s Reply
(Doc. 37), and Plaintiff’s Surreply (Doc. 41). Having reviewed the Parties’ submissions
and the record evidence, the Court concludes Defendant’s motion should be granted.
BACKGROUND
Plaintiff Nausheen Zainulabeddin filed this action on January 22, 2016, asserting
six claims against her former medical school, the University of South Florida’s Morsani
College of Medicine (“USF MCOM”). Plaintiff attended the medical school from August
2009 to May 2013, at which point she was dismissed from the program. Plaintiff alleges
that USF MCOM violated Section 504 of the Rehabilitation Act because its decision to
dismiss her constituted (1) discrimination on the basis of her disability and/or (2)
retaliation in response to her requesting accommodations on the National Board of
Medical Examiners’ Comprehensive Basic Science Examination (“CSBE”). In addition,

A-1456
Plaintiff alleges that (3) USF MCOM’s Vice Dean of Educational Affairs, Dr. Specter,
breached his fiduciary duty to her, (4) Dr. Specter negligently misrepresented to her that
she did not have a disability or need accommodations for her disability, (5) USF MCOM
breached its contractual relationship with her by refusing to reimburse some of her
tuition, and (6) USF MCOM was unjustly enriched by keeping her tuition.
In its Motion for Summary Judgment, USF argues that the Court should enter
judgment for USF on all six of Plaintiff’s claims. Plaintiff concedes that her claims for
breach of contract and unjust enrichment are barred by sovereign immunity because USF
is a state agency. (Pl.’s Resp. 2.) Because Plaintiff has abandoned those two claims, the
Court will grant summary judgment on those claims without further discussion. The
Court will now outline the facts relevant to the other four claims.
RELEVANT FACTS
Before attending medical school, Plaintiff completed a Master’s degree in Medical
Sciences at USF. Midway through her Master’s program, she began to have difficulties
with her studies, particularly in preparing for the MCAT. As a result, Plaintiff sought
medical treatment. In July 2008, a psychiatrist “informally” diagnosed her with Attention
Deficit Hyperactivity Disorder (“ADHD”) and prescribed her medication for ADHD. 1
Plaintiff’s psychologist thought her difficulties were due to anxiety. (Pl. Aff. Ex. E, at 3.)
1
Plaintiff describes the diagnosis as informal because the psychiatrist made it based on
Plaintiff’s self-reported history, consultation with her psychologist, and a standardized
examination, as opposed to a neuropsychological evaluation. (Zainulabeddin Dep. 60:7-20, 65:11-
18, 67:3-14.)
2
A-1457
Nevertheless, Plaintiff took Adderall on and off from July 2008 to July 2009, and her
academic performance improved.
In August 2009, Plaintiff enrolled in USF’s Morsani College of Medicine (“USF
MCOM”). Plaintiff did not tell anyone at the school about her ADHD or anxiety or request
any accommodations. She took Adderall consistently that year. Despite this fact, she began
to have academic difficulties in her first semester. In March 2010, after thinking she had
failed a cardiology examination, she met with Dr. Specter. They discussed whether she
should take a leave of absence from school. Ultimately, Plaintiff finished out the year, and
she failed all but one of her final examinations. As a result, she did not pass her first year
of medical school.
USF MCOM has an Academic Performance Review Committee (“APRC”) that
discusses students with deficiencies in their academic performance or professional
behavior and determines what kind of corrective action to take. The APRC consists of the
medical school’s course directors. After Plaintiff failed the first year, the APRC decided
that she could repeat it subject to certain conditions. It placed her on academic probation,
required her to meet with an academic advisor monthly, and required her to obtain “a
comprehensive assessment of [her] learning style” (Pl. Aff. Ex. B), i.e., a
neuropsychological evaluation.
USF MCOM helped students obtain these evaluations because the Vice Dean of
Education recognized that students who struggled academically for no apparent reason
might have “some kind of neuropsychological deficit.” (Specter Dep. 24:16-25.) Pursuant
to USF policy, students needed a neuropsychological evaluation in order to obtain
3
A-1458
disability accommodations. Obtaining the evaluations “was a way of trying to make certain
that [USF MCOM] could provide all the help necessary to a student who needed help.” (Id.
at 25:3-5.)
USF MCOM referred Plaintiff for the neuropsychological evaluation and paid for
it. Plaintiff met with the evaluator, Dr. Schoenberg, on August 5, August 12, and September
2, 2010. Dr. Schoenberg issued his report on December 17, 2010. He diagnosed Plaintiff
with ADHD and moderate to severe anxiety. He recommended that Plaintiff engage in
cognitive-behavioral therapy and consider initiation of medication for her anxiety
symptoms. He also stated that she should qualify for special education services due to her
“neuropsychological deficits with primarily attention difficulties,” and he indicated that
she was likely to benefit from tutoring and taking tests in a distraction-free environment.
Dr. Schoenberg provided a copy of his report to Dr. Specter.
At some point during fall or winter of 2010, Plaintiff met with Dr. Specter, and they
discussed the report. Plaintiff did not ask Dr. Specter for a copy of the report, nor did he
give her one. The Parties dispute most other details about this meeting. Plaintiff claims that
she met with Dr. Specter in October 2010, and he told her that there was nothing wrong
with her and she did not need accommodations. According to Plaintiff, Dr. Schoenberg had
not gone over his findings with her, so she relied on what Dr. Specter said. She did not
realize that Dr. Schoenberg had not completed his report at that time. In contrast, Dr.
Specter claims that he met with Plaintiff after he received the report from Dr. Schoenberg.
He states that he reviewed the report with Plaintiff, but not in depth, because she was
already familiar with the contents of the report. According to Dr. Specter, Plaintiff did not
4
A-1459
think that she needed the accommodations because she was doing well in her second
attempt at the first-year curriculum.
That year (i.e., the 2010-2011 school year), Plaintiff passed the first-year
curriculum. The APRC took her off of academic probation, and she advanced to the second
year of medical school in fall 2011.
During the 2011-2012 school year, Plaintiff once again began to have academic
difficulties. In September 2011, she failed Medical Sciences 1. The APRC decided to let
Plaintiff remediate that course. Then, in December 2011, Plaintiff failed Medical Sciences
2.
On January 5, 2012, the APRC voted to dismiss Plaintiff from the medical school.
Plaintiff appealed the decision. Initially, on February 2, 2012, the APRC decided to sustain
the dismissal. However, on February 16, 2012, the APRC reconsidered its decision and
overturned the dismissal based on “new info which was not available at the previous
meeting.” (Pl. Aff. Ex. B.)
This new information appears to have been information that Plaintiff had been
diagnosed with ADHD and anxiety but had not previously received accommodations for
her disabilities. Dr. Specter explained in his deposition, “[The APRC] felt that [Plaintiff]
deserved the opportunity to be able to take her coursework with accommodations because
they had not been granted to her previously, not because anybody denied those, but because
. . . she had not applied for those accommodations.” (Specter Dep. 62:14-20.)
Ultimately, the APRC agreed that Plaintiff could repeat the second-year curriculum
in the 2012-2013 school year while on academic probation. It required her to continue to
5
A-1460
meet with her academic advisor monthly, coordinate with her counselor and tutor to create
an organized approach to study for the next year, and continue her enrollment in the Kaplan
Classroom Anywhere course to develop successful strategies for “studying[,] developing
integrative habits[,] [and] addressing knowledge base gaps.”2 (Id.)
On March 7, 2012, Plaintiff met with Dr. Schoenberg. She provided him with
additional historical information about the extent of her attention problems, which she had
not previous disclosed to him “[d]ue to cultural and historical factors.” (Pl. Aff. Ex. E.)
This new information did not change Dr. Schoenberg’s diagnostic impressions, but he did
update his recommendations to note that Plaintiff would “benefit from extra time to
complete assignments/tests (time and one-half).” (Id.)
During the 2012-2013 school year, Plaintiff reattempted the second-year
curriculum. She requested disability accommodations from USF’s Students with
Disabilities Services Office, and the Office approved her to take tests in a distraction-free
environment and to receive extra time on tests. Her instructors provided her with these
accommodations as well as others. For example, Plaintiff’s instructors also provided her
with a number of extensions on both assignments and tests. In addition, instructors allowed
Plaintiff to view lectures online from home instead of attending class. (Zainulabeddin Dep.
191:24-192:10.)
2
The Court notes that, although Plaintiff had not requested disability accommodations as
of February 2012, USF MCOM had already connected her with resources to help her succeed in
medical school. Dr. Specter had obtained tutors for Plaintiff, and he had also connected her to a
counseling program. These resources appear to be the “counselor” and “tutor” referenced by the
APRC.
6
A-1461
Despite these accommodations, Plaintiff continued to have academic problems.
Plaintiff was deficient in her “ICM proficiency.”3 (Pl. Aff. Ex. B.) In addition, she received
failing grades in two of her first semester classes—Doctoring II and Evidence-Based
Clinical Reasoning II (“EBCR II”).
Plaintiff received notification that she failed Doctoring II on March 12, 2013.
Later on March 12, Plaintiff emailed Dr. Stevenson, an Associate Dean of USF
MCOM, to request an accommodation of double the time to take the National Board of
Medical Examiners’ Comprehensive Basic Science Exam (“CBSE”). Dr. Stevenson
responded, “I would STRONGLY advise you to take the CBSE under the same testing
conditions as you will use for Step 1. If that means no accommodations, then use no
accommodations. Please speak with Dr. Specter or me before requesting these
accommodations. We want you to succeed on Step one.” (Pl. Aff. Ex. L.) Plaintiff then
replied, explaining why she wanted the extra time. Dr. Specter was cc’d on all three of
these emails.
The next day, on March 13, Plaintiff took the final examination for the Evidence-
Based Medicine (“EBM”) portion of her EBCR II class. She failed the examination, which
comprised 90% of her final grade in EBM. Because she had to pass EBM to pass EBCR
II, she did not pass EBCR II.4
3
It is not clear from the record what “ICM” stands for or what “ICM proficiency” is.
4
Plaintiff now disputes whether she should have failed EBCR II. However, it is undisputed
that the course director assigned her a failing grade and she did not appeal the grade using USF
MCOM’s internal procedures.
7
A-1462
Then, on March 14, the APRC had its meeting to discuss students who were
struggling academically. Plaintiff was on the APRC’s agenda because of her failing grades
in Doctoring II and EBCR II and her deficiency in ICM. The APRC voted to dismiss
Plaintiff from USF MCOM.
Plaintiff appealed the decision. In a letter dated April 5, 2013, the APRC notified
Plaintiff that it had sustained her dismissal. It explained that it was concerned about
“significant gaps in [her] knowledge, clinical performance, clinical reasoning, physical
exam skills, self-directed learning skills, data-gathering skills, and ability to logically
interpret steps and follow instructions.” (Specter Dep. Ex. 11.) It further noted that the
additional information presented in her appeal “did not convince the Committee of [her]
ability to successfully progress through the curriculum.” (Id.)
Dr. Specter attended the APRC meetings in his role as student advocate or liaison.
He was not a part of the APRC, however, and he did not vote in the meetings. In his
deposition, he explained that the APRC was also concerned that Plaintiff would not be able
to complete the four years of medical school curriculum within six years, the maximum
amount of time allowed. The third year of medical school is more challenging than the
second because students have significantly less time to study due to intensive clinical
responsibilities. The APRC did not think that Plaintiff would be able to complete the third-
year curriculum in one year and would therefore be unable to graduate from medical
school.
8
A-1463
Plaintiff then appealed her dismissal to the Dean of USF MCOM, Dr. Klasko. On
May 28, 2013, after having met with Plaintiff and reviewed the APRC report, Dr. Klasko
sustained the APRC’s decision.
SUMMARY JUDGMENT STANDARD
Motions for summary judgment should be granted only when the pleadings,
depositions, answers to interrogatories, admissions, and affidavits show there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The
existence of some factual disputes between the litigants will not defeat an otherwise
properly supported summary judgment motion; “the requirement is that there be no genuine
issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)
(emphasis in original). The substantive law applicable to the claimed causes of action will
identify which facts are material. Id. Throughout this analysis, the court must examine the
evidence in the light most favorable to the nonmovant and draw all justifiable inferences
in its favor. Id. at 255.
Once a party properly makes a summary judgment motion by demonstrating the
absence of a genuine issue of material fact, the nonmoving party must go beyond the
pleadings through the use of affidavits, depositions, answers to interrogatories, and
admissions and designate specific facts showing that there is a genuine issue for trial.
Celotex, 477 U.S. at 324. The evidence must be significantly probative to support the
claims. Anderson, 477 U.S. at 248-49 (1986).
9
A-1464
This Court may not decide a genuine factual dispute at the summary judgment stage.
Fernandez v. Bankers Nat’l Life Ins. Co., 906 F.2d 559, 564 (11th Cir. 1990). “[I]f factual
issues are present, the Court must deny the motion and proceed to trial.” Warrior
Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983). A dispute
about a material fact is genuine and summary judgment is inappropriate if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477
U.S. at 248; Hoffman v. Allied Corp., 912 F.2d 1379 (11th Cir. 1990). However, there must
exist a conflict in substantial evidence to pose a jury question. Verbraeken v. Westinghouse
Elec. Corp., 881 F.2d 1041, 1045 (11th Cir. 1989).
DISCUSSION
I. Plaintiff’s Disability Discrimination Claim
A. Legal Framework
Section 504 of the Rehabilitation Act of 1973 (“Rehabilitation Act”) prohibits
agencies that receive federal funding from discriminating against an “otherwise qualified
individual with a disability.” 29 U.S.C. § 794(a). Discrimination claims brought under the
Rehabilitation Act are governed by the same standards as claims brought under Title I of
the Americans with Disabilities Act of 1990 (“ADA”). Holbrook v. City of Alpharetta, 112
F.3d 1522, 1526 n.2 (11th Cir. 1997). When a plaintiff offers circumstantial evidence to
prove discrimination claims, courts analyze these claims using the burden-shifting
framework outlined by the Supreme Court in McDonnell Douglas. See Durley v. APAC,
Inc., 236 F.3d 651, 657 (11th Cir. 2000) (holding the McDonnell Douglas framework
applies to ADA disability discrimination claims).
10
A-1465
Under this framework, the plaintiff must first establish a prima facie case of
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If the
plaintiff does so, the burden then shifts to the agency to articulate some legitimate,
nondiscriminatory reason for the adverse action. Id. If the agency meets this burden of
production, the presumption of discrimination raised by plaintiff’s prima facie case is
rebutted. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-56 (1981). The
plaintiff then has an opportunity to show that the agency’s proffered nondiscriminatory
reason is pretextual. Id.
B. Plaintiff Has Not Proven Her Prima Facie Case.
In order to establish a prima facie case of disability discrimination under the
Rehabilitation Act, Plaintiff must demonstrate the following: (1) she is disabled, (2) she
is a qualified individual, and (3) she was subjected to unlawful discrimination because of
her disability. J.A.M. v. Nova Se. Univ., Inc., 646 F. App'x 921, 926 (11th Cir. 2016)
(citing Cash v. Smith, 231 F.3d 1301, 1305 (11th Cir. 2000)).
An “otherwise qualified” individual is one who is able to meet all of a program’s
requirements in spite of her disability. Se. Cmty. Coll. v. Davis, 442 U.S. 397, 406 (U.S.
1979). In the context of postsecondary education, the individual must be able to meet the
academic and technical standards required by the program. J.A.M., 646 F. App'x at 926
(citing Onishea v. Hopper, 171 F.3d 1289, 1300 (11th Cir. 1999)).
In certain circumstances, an educational institution’s refusal to accommodate the
needs of a disabled individual amounts to discrimination against that individual because
of her disability. J.A.M., 646 F. App'x at 926 (citing Se. Cmty. Coll., 442 U.S. at 412-13).
11
A-1466
However, Plaintiff does not argue that USF MCOM discriminated against her by failing
to provide her reasonable accommodations, and in fact USF MCOM provided her
accommodations once she requested them in the 2012-2013 school year.
Instead, Plaintiff argues that USF MCOM discriminated against her on the basis of
her disability when it dismissed her from the program in spring of 2013. Plaintiff also
appears to argue that the course directors for Doctoring II and EBCR II discriminated
against her on the basis of her disability when they assigned her failing grades (i.e.,
grades of “U” for “Unsatisfactory”).5 Plaintiff has not established a prima facie case of
discrimination because she has not demonstrated that she was an “otherwise qualified”
individual or that these actions were taken “solely by reason of her . . . disability.” 29
U.S.C. § 794(a).
i. Plaintiff has not demonstrated that she is an “otherwise qualified”
individual.
Plaintiff failed her first year of medical school during the 2009-2010 school year.
She then failed the second-year curriculum during the 2011-2012 school year. And when
she repeated the second-year curriculum during the 2012-2013 school year, she continued
to have academic deficiencies. That year, Plaintiff received a number of accommodations,
like extra time on her examinations, the opportunity to take the examinations in a
5
It is not entirely clear whether Plaintiff is arguing that her Doctoring II course directors
gave her a failing grade due to her disability. She does not explicitly argue this in her Response,
nor does she dispute that she received or should have received a failing final grade in Doctoring II
in her Statement of Disputed Material Facts (Doc. 26). However, in her affidavit (Doc. 28), she
has a heading titled, “Evidence that I Was Singled out to Fail Two Courses in March 2013 Based
on My Disability . . .” The Court will address this argument out of an abundance of caution.
12
A-1467
distraction-free setting, and extensions on examinations and assignments, including a
three-month extension to take her Evidence-Based Medicine final examination. Despite
receiving these accommodations—and seeing the course material for the second time
around—Plaintiff did not pass ICM, Doctoring II, or EBCR II. She had to remediate these
courses.
In short, it took Plaintiff four years to complete two years of medical school, and at
the end of that four years she was still not performing satisfactorily. The APRC—the
committee of course directors tasked with reviewing students’ progress in the curriculum—
determined that Plaintiff was not performing up to USF MCOM’s standards. Even Plaintiff
herself acknowledged that she was not meeting school standards, explaining that “when
you are a repeating student there is a standard that you should not fail any classes, period.”
(Zainulabeddin Dep. 176:15-17.)
The standards USF MCOM sets for its students are entitled to deference, and USF
MCOM had no obligation to lower its standards to accommodate Plaintiff. See Wood v.
President & Trustees of Spring Hill Coll. in City of Mobile, 978 F.2d 1214, 1222-23 (11th
Cir. 1992) (citing Se. Cmty. Coll., 442 U.S. at 413). Plaintiff did not meet those standards.
Accordingly, she has not demonstrated that she was an “otherwise qualified” individual
within the meaning of the Rehabilitation Act.
13
A-1468
ii. Plaintiff has not demonstrated that Dr. Stock and Dr. Valeriano
discriminated against her when they assigned her a failing grade
in Doctoring II.
Plaintiff argues that she was singled out to fail Doctoring II due to her disability.
She points to one piece of evidence in support of this argument—that thirty-five other
students had some kind of deficiency in the final examination, but they all received a grade
of “T” for “Temporary” whereas she received a “U.”
This piece of evidence does not support Plaintiff’s argument that she was singled
out to fail because of her disability. Plaintiff has not established that the only difference
between her and the other students was that she had a disability. Instead, the undisputed
evidence indicates that Plaintiff received a “U” because of her inferior performance in the
class.
Neither “T” grades nor “U” grades are considered passing grades—the main
difference involves how much remediation will be required in order to convert the grade
into a passing grade and how quickly that remediation can be completed. In her deposition,
Dr. Stock explained that she assigned “T” grades when students had “a small[,] focal deficit
that results in a failure of a course because of something deemed to be a very small[,] easily
[or] quickly remediable deficit, not a more global knowledge or skills deficit.” (Stock Dep.
70:13-16.) For example, she would issue a “T” if the student had “performed poorly . . . on
one specific assessment,” but not if the student had “a global pattern of not doing well
throughout the course.” (Id., 70:18-24.)
14
A-1469
Plaintiff did not have difficulties on just one assessment like the final examination.
Instead, she had difficulties throughout the course.
Doctoring II is a skills-based course in which students learn how to interview
patients, take their histories, and conduct physical examinations. Faculty members and
senior medical students (referred to as preceptors) observe the students’ clinical
performance.
As one component of the course, students have to draft histories and physicals
(“H&Ps”), write-ups summarizing patients’ histories and physicals the student conducted
while in the clinical setting. Plaintiff’s faculty preceptor, Dr. Estevez, found Plaintiff’s
H&Ps “completely unacceptable.” (Stock Dep. Ex. 16.)
Dr. Estevez expressed additional concerns about Plaintiff’s performance at the
midpoint evaluation in November. She indicated that Plaintiff was “often unprepared” for
doctoring sessions, “need[ed] prompting through the physical examinations,” rarely spoke
up in class, and had not been keeping up with the assigned reading. (Stock Dep. Ex. 9.)
In December, Dr. Estevez emailed Dr. Stock and Dr. Valeriano, asking if students
ever failed Doctoring II. She stated that she had “serious concerns” that she had discussed
with Plaintiff, but Plaintiff had not shown much improvement. (Stock Dep. Ex. 16). She
elaborated that Plaintiff “consistently shows up unprepared, and she was embarrassingly
bad at the Male GU exam, not only displaying a lack of preparation but also a lack of
sensitivity toward the [patient].” (Id.) She further noted that Plaintiff had “lunged for [the
patient’s] private parts without introducing herself or telling him what she was about to
do.” (Id.)
15
A-1470
Plaintiff failed a quiz—the Course 5 quiz—when she first took it. In addition, she
did not pass the OSCE, an observed physical examination. Even though Plaintiff had been
allowed to defer the OSCE for a month, the observing physician, Dr. Slone, reported that
she was “totally unprepared,” “performed parts of the MSK station at an unacceptable
level,” and did not perform the neurology station. (Stock Dep. Ex. 21.)
Thereafter, Plaintiff failed the final clinical evaluation. The two preceptors
evaluating Plaintiff’s performance had no familiarity with her or her previous academic
performance. Dr. Stock and Dr. Valeriano rotated the preceptors for the final evaluations
“to try to give [students] a very objective grade.” Plaintiff’s preceptors rated her
performance as “below expectations without any hesitation.” (Stock Dep. Ex. 25.) In
addition, the patient Plaintiff examined “was furious with her regarding [her]
professionalism.” (Id.)
Lastly, at the end of the course, Dr. Estevez rated Plaintiff “as still [being] below
expected in some areas.” (Stock Dep. Ex. 24.)
Notably, throughout the Doctoring II course, Dr. Stock, Dr. Valeriano, and
Plaintiff’s preceptors worked with Plaintiff in an effort to help her pass the course. For
example, they gave her multiple opportunities to remediate deficiencies (e.g., by allowing
her to redo her H&Ps and retake both the Course 5 quiz and the OSCE). They provided
Plaintiff extensions on assignments and tests. When Plaintiff did not complete assignments
or tests within the extended time period granted, it does not appear that they penalized her.
In addition, Dr. Stock and Dr. Valeriano met with Plaintiff in January to discuss their
concerns, and they developed a plan intended to help her successfully pass the course.
16
A-1471
Despite this fact, Plaintiff did not pass Doctoring II. Dr. Stock and Dr. Valeriano
ultimately decided to assign Plaintiff a “U” grade due to her performance in Dr. Estevez’s
midpoint and final reviews, the OSCE, and the final examination.
Plaintiff has not provided evidence to suggest that Dr. Stock and Dr. Valeriano
assigned her a final grade of “U” based on her disability rather than perceived global
deficits in her skills and performance. During the course, multiple preceptors voiced that
Plaintiff was performing below expectation. Plaintiff exhibited difficulties toward the
beginning of the course and continued to exhibit difficulties throughout. Accordingly,
Plaintiff has not demonstrated that Dr. Stock and Dr. Valeriano failed her due to her
disability.
iii. Plaintiff has not demonstrated that Dr. Kumar and Dr. Roth
in EBCR II.
Plaintiff also argues that she was singled out to fail EBCR II due to her disability.
She points to a few pieces of evidence in support of this argument, including that (1) USF
MCOM has no record of her score on the Evidence-Based Medicine (“EBM”) final, (2)
based on the score Dr. Kumar orally reported to her, she should have passed EBM (and
therefore EBCR II), (3) the fourteen other students who did not pass the EBM portion of
EBCR II received a grade of “T” whereas she received a “U,” and (4) Dr. Kumar assigned
her a “U” instead of a “T” because he was told she had a global deficiency in multiple
classes and not just his.
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None of this evidence indicates that Dr. Kumar and/or Dr. Roth singled Plaintiff out
to fail based on her disability. For example, there is an obvious, non-discriminatory reason
why the EBM grading spreadsheet referenced by Plaintiff does not reflect Plaintiff’s grade
on the final examination—Dr. Kumar granted her a three-month extension to take her final,
and he drafted the spreadsheet well before she had taken it.
Although Plaintiff argues in her affidavit that she should have passed EBM based
on her score on the final, this portion of the affidavit should be disregarded as a sham.
Plaintiff’s EBM grade was based on two scores—her score on the final accounted for 90%
of her grade, and her score on the presentation accounted for 10% of her grade. In her
affidavit, Plaintiff states that Dr. Kumar told her she received a 67.5 on the final. (Pl. Aff.
¶ 65.) She argues that, when considered along with her score of 80 on the presentation, she
should have passed EBM. (Id. at ¶¶ 66-68.) However, Plaintiff’s affidavit is directly
contradicted by (1) her previous deposition testimony, in which she stated that she received
a 65 on the final (Zainulabeddin Dep. 150:20-21, 151:3, 158:12-13) and (2) her written
summary of her performance in EBCR II, in which she noted that she received a 65 (Kumar
Dep. Ex. 13; Roth Dep. Ex. 6). Plaintiff’s affidavit does not attempt to explain this
discrepancy, so the Court need not consider it. See Rollins v. TechSouth, Inc., 833 F.2d
1525, 1530 (11th Cir. 1987). If Plaintiff did indeed receive a 65 on her final, she would
have failed the class regardless of what score she received on her presentation. (See Kumar
Dep. 45:6-13, 52:12-14.)
Lastly, the fact that Dr. Kumar gave other students who failed “T’s” but Plaintiff a
“U” does not support Plaintiff’s argument that he singled her out to fail because of her
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disability. Dr. Kumar testified that he assigned “U” grades when students had more global
deficiencies and were doing poorly in other classes as well. (Kumar Dep. 59:1-25.)
Although the Court agrees that the fairness of this grading practice might be open to
question, it does not indicate that Dr. Kumar treated Plaintiff differently than similarly
situated students without disabilities. There is no evidence that other students with global
deficits but without disabilities received a “T.” The evidence indicates simply that Dr.
Kumar applied this same, possibly unfair grading practice to all of his students, not that he
singled Plaintiff out to fail because of her disability.
iv. Plaintiff has not demonstrated that the APRC or Dr. Kloski
discriminated against her when they decided to dismiss her from
USF MCOM in spring of 2013.
Plaintiff also argues that she was dismissed from USF MCOM due to discriminatory
animus. According to Plaintiff, her Doctoring II and EBCR II course directors singled her
out to fail. Therefore, she contends, the Court can infer that USF MCOM made the decision
to dismiss her based on disability discrimination. The Court disagrees.
As discussed in sections I(B)(ii) and I(B)(iii), supra, Plaintiff has not demonstrated
that her course directors assigned her “U” grades due to her disability or that they harbored
any discriminatory animus toward her. However, even if Plaintiff had proven this, it would
not demonstrate that the APRC and/or Dr. Klasko decided to dismiss her based on her
disability.
As a preliminary matter, Plaintiff has not pointed to any evidence that the APRC or
Dr. Klasko had any bias against students with disabilities. In fact, when Plaintiff failed her
19
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first year of medical school in 2010, the APRC decided to fund an expensive
neuropsychological evaluation so that Plaintiff could better understand her learning style
and whether she needed disability accommodations. And when the APRC first learned of
Plaintiff’s disability—after she had failed the second year of medical school and was
appealing the initial decision to dismiss her—the APRC voted to reverse her dismissal to
see if she could successfully complete the second-year curriculum with disability
accommodations.
Second, even if Plaintiff were correct that her Doctoring II and EBCR II course
directors had discriminatory animus toward her, they did not get a vote in whether she
should be dismissed. Although course directors were on the APRC, they recused
themselves from votes regarding their own students.
Likewise, even if Plaintiff had proven that her Doctoring II and/or EBCR II course
directors assigned her “U” grades because of her disability, there is no evidence that the
APRC or Dr. Klasko knew that. The APRC voted to dismiss Plaintiff because it believed
she had deficiencies in ICM, Doctoring II, and EBCR II while repeating the second-year
curriculum, and even one deficiency was grounds for dismissal. While there is no evidence
regarding why Dr. Klasko decided to sustain Plaintiff’s dismissal, there is also no evidence
that he did so because she had a disability.
For these reasons, Plaintiff has not demonstrated that USF MCOM dismissed her
due to her disability.
20
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C. Plaintiff Has Not Proven that USF MCOM’s Legitimate, Non-
Discriminatory Reason for her Dismissal was Pretextual.
Lastly, the Court notes that even if Plaintiff had proven her prima facie case, her
discrimination claim would still fail. USF MCOM offered a legitimate, non-discriminatory
reason for dismissing her from its program—her poor academic performance. Plaintiff
failed two years of medical school, she continued to experience academic difficulties while
repeating the curriculum with disability accommodations, and the APRC did not believe
she would be able to successfully complete the third-year and fourth-year curriculum in the
maximum time allotted.
Plaintiff may show pretext by pointing to “weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions” in USF MCOM’s proffered reason.
Brooks v. Cnty. Comm’n of Jefferson Cnty., 446 F.3d 1160, 1163 (11th Cir. 2006) (internal
quotation marks omitted). She has not done so. The APRC’s decision to dismiss Plaintiff
comported with USF MCOM’s policy, as described by both Plaintiff and Dr. Specter.
(Zainulabeddin Dep. 176:15-17; Specter Dep. 72:19-73:9.) In addition, Plaintiff has not
demonstrated that the APRC and/or Dr. Klasko treated her differently than a similarly-
situated student without a disability. See Walker v. St. Joseph’s/Candler Health Sys., Inc.,
506 F. App’x 886, 889 (11th Cir. 2013) (internal citations omitted) (“A typical means of
establishing pretext is through comparator evidence.”).
Plaintiff provides nothing more than speculation that USF MCOM dismissed her
due to her disability, as opposed to her academic performance. This is insufficient as a
matter of law.
21
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II. Plaintiff’s Retaliation Claim
The Rehabilitation Act includes an anti-retaliation provision that prohibits agencies
from discriminating against an individual because he or she has opposed an action that is
unlawful under the Act. Burgos-Stefanelli v. Sec'y, U.S. Dep't of Homeland Sec., 410 F.
App'x 243, 245 (11th Cir. 2011) (internal citations omitted). When plaintiffs offer
circumstantial evidence to prove a retaliation claim, courts analyze these claims using the
same burden-shifting framework outlined in section I(A), supra. Id. at 245-46 (internal
citation omitted).
To establish a prima facie case of retaliation, a plaintiff must show that (1) she
engaged in statutorily protected expression, (2) she suffered a materially adverse action,
and (3) there was some causal relationship between the two events. Simpson v. State of
Alabama Dep't of Human Res., 501 F. App'x 951, 954 (11th Cir. 2012) (citing Holifield v.
Reno, 115 F.3d 1555, 1566 (11th Cir. 1997)). In order to demonstrate a causal relationship,
the plaintiff must, at a minimum, establish that the decision-maker was actually aware of
the protected expression at the time it took the adverse action against the plaintiff. Holifield,
115 F.3d at 1566.
Plaintiff argues that she was dismissed from USF MCOM because she emailed Dr.
Stevenson on March 12, 2013 to ask for an accommodation of double the time on the
National Board of Medical Examiners’ Comprehensive Basic Science Examination
(“CBSE”), and Dr. Stevenson opposed this, so he had the APRC vote to dismiss Plaintiff
from USF MCOM two days later.
22
A-1477
To begin with, it is not clear that Dr. Stevenson actually opposed Plaintiff receiving
accommodations. He recommended that she take the CSBE under the same conditions that
she would take Step 1 (i.e., the Boards) because he “want[ed] [her] to succeed on Step [1].”
(Pl. Aff. Ex. L.)
In any event, there is no evidence that the APRC voted to dismiss Plaintiff due to
her email exchange with Dr. Stevenson, in large part because there is no evidence that
anyone on the APRC knew about it. It is undisputed that Dr. Stevenson was not on the
APRC, and there is no evidence that he told members of the APRC about it.
Plaintiff points out that Dr. Specter was cc’d on the email exchange and attended
the APRC meetings, so he could have influenced the APRC to retaliate against her. Again,
there is no evidence the Dr. Specter told anybody on the APRC about the emails, or that he
had even read the emails before the March 14, 2013 APRC meeting. Furthermore, although
Dr. Specter was cc’d on the email chain, he did not discourage Plaintiff from seeking an
accommodation. In fact, he wrote a letter to the National Board of Medical Examiners a
few weeks later, encouraging the agency to grant Plaintiff’s request for accommodations
on Step 1. (Specter Dep. Ex. 19.)
Under ordinary circumstances, the short amount of time between Plaintiff’s request
for accommodations and her dismissal might indicate foul play. However, the unique
circumstances in this case negate this inference. The APRC had regularly scheduled
meetings; it did not convene on March 14 specifically to discuss Plaintiff. In addition, the
APRC would have discussed Plaintiff at the March 14 meeting regardless of her emails to
Dr. Stevenson. Plaintiff was on the APRC’s agenda for that meeting because she had failed
23
A-1478
Doctoring II and ECBR II and had a deficiency in ICM. For reasons similar to those
outlined in sections I(B)(ii) and (iii), supra, Plaintiff has not demonstrated that she received
these grades in retaliation for requesting accommodations on the CBSE.
III. Plaintiff’s Breach of Fiduciary Duty Claim
In addition to her claims under the Rehabilitation Act, Plaintiff contends that Dr.
Specter breached his fiduciary duty to her when he allegedly (1) advised her not to take a
leave of absence from medical school in spring of 2010 and (2) told her that she did not
have a disability in fall of 2010.
Under Florida law, there is a four-year statute of limitations for breach of fiduciary
duty claims. Fla. Stat. § 95.11(3); Patten v. Winderman, 965 So. 2d 1222, 1224 (Fla. Dist.
Ct. App. 2007). The cause of action accrues when the last element of the cause of action
occurs, and the “delayed discovery” doctrine does not toll the running of the statute of
limitations for these claims. Davis v. Monahan, 832 So. 2d 708, 709 (Fla. 2002).
The elements of a cause of action for breach of fiduciary duty are (1) the existence
of a fiduciary duty, (2) a breach of that duty, and (3) damages that are proximately caused
by the breach. Thus, Plaintiff’s breach of fiduciary duty claim arose in 2010, when the
alleged breach and resulting damages occurred.
Plaintiff did not file this case until January 22, 2016, well after the four-year
limitations period. Plaintiff concedes that her claim is facially time-barred but argues that
USF should be equitably estopped from asserting the statute of limitations because its
actions prompted Plaintiff to delay filing her claim.
24
A-1479
Courts apply equitable estoppel to prevent a defendant from asserting the statute of
limitations as a defense when the defendant’s misconduct has induced the plaintiff to
forbear bringing suit within the applicable limitations period. Major League Baseball v.
Morsani, 790 So. 2d 1071, 1079 (Fla. 2001) (internal citation omitted). “Stated another
way, ‘[e]quitable estoppel arises where the parties recognize the basis for suit, but the
wrongdoer prevails upon the other to forego enforcing his right until the statutory time has
lapsed.’” Black Diamond Properties, Inc. v. Haines, 69 So. 3d 1090, 1093 (Fla. Dist. Ct.
App. 2011) (internal citations omitted); see also Fox v. City of Pompano Beach, 984 So.
2d 664, 667 (Fla. Dist. Ct. App. 2008) (internal citations omitted) (plaintiff can raise
equitable estoppel when defendant willfully induced plaintiff to forego suit until after the
limitations period has ended). “Equitable estoppel presupposes a legal shortcoming in a
party’s case that is directly attributable to the opposing party’s misconduct.” Major League
Baseball, 790 So. 2d at 1077. The doctrine is based on the equitable principle that a party
should not be permitted to profit from its own wrongdoing. Id. at 1079.
Plaintiff argues equitable estoppel applies in this case because Dr. Specter caused
her to forego bringing legal suit when he helped her get readmitted to the medical school
in 2012 and pretended to act as her advocate when appealing her second dismissal in 2013.
Even if the Court assumed that these actions constituted misconduct intended to discourage
Plaintiff from filing suit, this conduct ended when USF MCOM dismissed Plaintiff in May
2013, leaving Plaintiff with about one to one-and-a-half years to file suit. USF did not
induce Plaintiff to forbear bringing suit until after the limitations period had ended. Thus,
25
A-1480
Plaintiff’s failure to file suit is not directly attributable to USF’s conduct, and equitable
estoppel does not apply.
Plaintiff also argues that the Court should apply equitable estoppel because USF has
allegedly engaged in affirmative misconduct in order to conceal its wrongdoing. She relies
on a Florida Supreme Court case, S.A.P., for this proposition. S.A.P. involved unique
circumstances, in which a young foster child was sexually abused by her foster parents,
and the Department of Health and Rehabilitative Services actively concealed the abuse by
falsifying records and hindering the police investigation into the abuse. Florida Dep't of
Health & Rehab. Servs. v. S.A.P, 835 So. 2d 1091 (Fla. 2002). The foster parents and the
Department were the only possible plaintiffs who could bring suit on the child’s behalf.
The child had no memory of the abuse until her late teenage years, when an internal
investigation of the Department released records documenting the abuse. Id. Shortly
thereafter, she sued the Department for its negligence during her foster care placement, and
the court held that the Department could not assert the statute of limitations as a defense to
her untimely suit. Id.
Since S.A.P. was decided, a few courts have cautioned that the decision was
unique to the extraordinary facts of that case and was not intended to extend the law of
equitable estoppel beyond its historical use. See Ryan v. Lobo De Gonzalez, 921 So. 2d
572, 577 (Fla. 2005) (Cantero, J., dissenting); Rubio v. Archdiocese of Miami, Inc., 114
So. 3d 279, 283 (Fla. Dist. Ct. App. 2013). Moreover, this case is factually dissimilar.
Plaintiff was not a minor dependent on USF MCOM to bring suit on her behalf during the
limitations period; she was an adult who understood the basis for her cause of action at
26
A-1481
the time it accrued. Plaintiff has not demonstrated that USF MCOM actively concealed
Dr. Specter’s alleged breaches of fiduciary duty from her during the limitations period.
Indeed, she admitted that she contemplated taking legal action due to Dr. Specter’s
conduct as far back as 2012 (Pl. Aff. ¶¶ 41-42).
For these reasons, the doctrine of equitable estoppel is not applicable to this case.
Plaintiff’s claim for breach of fiduciary duty is time-barred.
IV. Plaintiff’s Negligent Misrepresentation Claim
Lastly, Plaintiff alleges that Dr. Specter negligently misrepresented to her that she
did not have a disability or need accommodations for her disability when they discussed
the results of her neuropsychological evaluation in fall of 2010.
USF argues that this claim is also time-barred by the four-year statute of limitations.
In addition, it argues that Plaintiff cannot sue USF for Dr. Specter’s alleged negligent
misrepresentation because it has sovereign immunity.
The State of Florida and its agencies have sovereign immunity and cannot be sued
unless the Florida Legislature has waived that privilege. See Pan-Am Tobacco Corp. v.
Dep't of Corr., 471 So. 2d 4, 5 (Fla. 1984) (citing Fla. Const. art. X, § 13). Although the
State has generally waived its immunity for torts, Fla. Stat. § 768.28, it has retained
immunity for torts committed in bad faith by its employees, Fla. Stat. § 768.28(9). USF
argues that bad faith is a necessary element of a negligent misrepresentation claim because
negligent misrepresentation sounds in fraud and bad faith is a necessary element of a fraud
claim. Therefore, it argues, sovereign immunity bars Plaintiff’s negligent
misrepresentation claim against it.
27
A-1482
Historically, in Florida, a claim for negligent misrepresentation has sounded in
fraud. Souran v. Travelers Ins. Co., 982 F.2d 1497, 1511 (11th Cir. 1993) (Cox, J.,
concurring in part and dissenting in part) (citing Watson v. Jones, 25 So. 678, 683
(1899); Ostreyko v. B.C. Morton Org., Inc., 310 So. 2d 316, 318 (Fla. Dist. Ct. App.1975)).
Take, for example, the elements of a negligent misrepresentation claim described in
Atlantic Nat. Bank of Florida v. Vest—an actionable suit requires (1) misrepresentation of
a material fact, (2) the representor must either know of the misrepresentation, make the
representation without knowledge as to its truth or falsity, or make the representation under
circumstances in which he ought to have known of its falsity, (3) the representor must
intend that the representation induce another to act on it, and (4) injury must result to the
party acting in justifiable reliance on the misrepresentation. 480 So. 2d 1328, 1331-32 (Fla.
Dist. Ct. App. 1985). The legal scienter articulated in the second element is the same as
that to establish fraud. See Parker v. State of Florida Bd. of Regents ex rel. Florida State
Univ., 724 So. 2d 163, 168 (Fla. Dist. Ct. App. 1998) (internal citations omitted). As a
result, courts have applied the heightened pleading standard and the statute of limitations
for fraud to negligent misrepresentation claims. E.g., McGee v. JP Morgan Chase Bank,
NA, 520 F. App'x 829, 831 (11th Cir. 2013) (applying Rule 9(b) pleading standard);
Ostreyko, 310 So. 2d at 318 (applying statute of limitations for fraud because “negligent
misrepresentation is considered tantamount to actionable fraud”).
Florida state courts have stated that intentional misconduct or bad faith is a
necessary element of fraud. First Interstate Dev. Corp. v. Ablanedo, 511 So. 2d 536, 539
28
A-1483
(Fla. 1987) (intentional misconduct); Parker, 724 So. 2d at 169 (bad faith). This supports
USF’s argument that it has sovereign immunity in regard to Plaintiff’s claim.
That said, it appears that today a litigant may have a cause of action for negligent
misrepresentation without proving fraud or that the person who made the representation
did so in bad faith. See Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So. 2d 334 (Fla.
1997) (adopting the Restatement (Second) of Torts’ position on negligent
misrepresentation and explaining that comparative negligence principles should apply to
negligent misrepresentation because a negligent misrepresenter who has “no intent to
deceive but only good faith coupled with negligence” is less culpable than a fraudulent
misrepresenter); Fla. Std. Jury Instr. (Civ.) 409.8 (requiring a plaintiff to prove just that the
representer made a statement that he believed to be true but was in fact false and that he
was negligent in making the statement because he should have known it was false).
It is not clear from Plaintiff’s Response under what theory of liability she is
proceeding. She did not list the elements of her negligent misrepresentation claim, and the
Court cannot discern whether she intends to argue that Dr. Specter knew he was telling her
a false statement or instead believed he was telling her the truth.
Ultimately, however, it does not matter. If Plaintiff intends to proceed on a theory
of liability for negligent misrepresentation that sounds in fraud, she must necessarily prove
that Dr. Specter acted in bad faith, so USF would be immune from suit. If Plaintiff instead
intends to proceed on a theory of liability that arises out of negligence, her claim is barred
by the four-year statute of limitations. Fla. Stat. § 95.11(3)(a). Her claim arose in fall of
2010, when Dr. Specter allegedly made the false representation and Plaintiff relied on it,
29
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yet Plaintiff did not file suit until 2016. Equitable estoppel does not apply for the reasons
discussed in section III, supra.
For the foregoing reasons, it is ORDERED AND ADJUDGED that:
1. Defendant’s Motion for Summary Judgment (Doc. 22) is granted.
2. The Clerk of Court is directed to enter final judgment in favor of Defendant
and against Plaintiff.
3. After entry of final judgment, the Clerk of Court is directed to close this case
and terminate any pending motions as moot.
DONE and ORDERED in Tampa, Florida, on April 19, 2017.
Copies furnished to:

Counsel/Parties of Record
30
A-1485
TAMPA DIVISION
Plaintiff,

BOARD OF TRUSTEES,
Defendant.
___________________________________
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came before the Court and a decision has been rendered.
IT IS ORDERED AND ADJUDGED judgment in favor of Defendant, University of
South Florida Board of Trustees and against Plaintiff, Nausheen Zainulabeddin.
ELIZABETH M. WARREN,
ACTING CLERK
s/B. Napier, Deputy Clerk

CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute: A-1486
(a) Appeals from final orders pursuant to 28 U.S.C. Section 1291: Only final orders and judgments of district courts, or final orders
of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C. Section 158, generally are
appealable. A final decision is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the
judgment.” Pitney Bowes, Inc. V. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983). A magistrate judge’s report and recommendation
is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. Section 636(c).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final,
appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b), Williams
v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys’ fees and
costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201, 108 S.
Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988); LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. Section 1292(a): Appeals are permitted from orders “granting, continuing, modifying, refusing
or dissolving injunctions or refusing to dissolve or modify injunctions...” and from “[i]nterlocutory decrees...determining the rights
and liabilities of parties to admiralty cases in which appeals from final decrees are allowed.” Interlocutory appeals from orders
denying temporary restraining orders are not permitted.
(d) Appeals pursuant to 28 U.S.C. Section 1292(b) and Fed.R.App.P.5: The certification specified in 28 U.S.C. Section 1292(b)
must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court’s denial of a motion
for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but
not limited to: Cohen V. Beneficial Indus. Loan Corp., 337 U.S. 541,546,69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Atlantic
Fed. Sav. & Loan Ass’n v. Blythe Eastman Paine Webber, Inc., 890 F. 2d 371, 376 (11th Cir. 1989); Gillespie v. United States
Steel Corp., 379 U.S. 148, 157, 85 S. Ct. 308, 312, 13 L.Ed.2d 199 (1964).
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir.
2001). In civil cases, Fed.R.App.P.4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the
district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or
agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE
MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL
PERIOD - no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): “If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after
the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later.”
(c) Fed.R.App.P.4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type
specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely
filed motion.
(d) Fed.R.App.P.4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend the time to file a notice of
appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the
time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the
time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment
or order, and that no party would be prejudiced by an extension.
(e) Fed.R.App.P.4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice
of appeal is timely if it is deposited in the institution’s internal mail system on or before the last day for filing. Timely filing may
be shown by a declaration in compliance with 28 U.S.C. Section 1746 or a notarized statement, either of which must set forth the
date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also
Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions
in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).
-2-
A-1487
A-1488
A-1489 Sam M. Gibbons U.S. Courthouse

Office of the Clerk
801 North Florida Avenue
Tampa, FL 33602
(813) 301-5400
www.flmd.uscourts.gov
Elizabeth M. Warren Keshia M. Jones
Acting Clerk of Court Tampa Division Manager
DATE: April 27, 2017
TO: Clerk, U.S. Court of Appeals for the Eleventh Circuit
Plaintiff,
UNIVERSITY OF SOUTH FLORIDA BOARD OF

TRUSTEES,
Defendant.
U.S.C.A. Case No.: NOT KNOWN
Enclosed are documents and information relating to an appeal in the above-referenced action. Please
acknowledge receipt on the enclosed copy of this letter.
Appeal filing fee was not paid. Upon filing a notice of appeal, the appellant must pay the district clerk
all required fees. The district clerk receives the appellate docket fee on behalf of the court of appeals. If
you are filing informa pauperis, a request for leave to appeal in forma pauperis needs to be filed with the
district court.
Certified copy of Notice of Appeal, docket entries, judgment and/or Order appealed from. Opinion was
not entered orally.
No hearing from which a transcript could be made.
ELIZABETH M. WARREN, ACTING CLERK
By: s/B. Napier, Deputy Clerk

Electronic Case Filing | U.S. District Court - Middle District of Florida Page 1 of 6
APPEAL, CLOSED, MEDIATION
A-1490 U.S. District Court
Middle District of Florida (Tampa)
CIVIL DOCKET FOR CASE #: 8:16-cv-00637-JSM-TGW
Zainulabeddin v. University of South Florida Board of Trustees Date Filed: 03/17/2016

Assigned to: Judge James S. Moody, Jr Date Terminated: 04/20/2017
Referred to: Magistrate Judge Thomas G. Wilson Jury Demand: Plaintiff
Case in other court: 13th Judicia Circuit, Hillsborough County, Nature of Suit: 440 Civil Rights: Other
Florida, 16-CA-669 Jurisdiction: Federal Question
Cause: 29:0794 Job Discrimination (Handicap)
Plaintiff
Nausheen Zainulabeddin represented by Nausheen Zainulabeddin
4409 West Varn Avenue
Tampa, FL 33616
PRO SE
Stanley Robert Apps

1950 Elkhorn Ct Unit #147
San Mateo, CA 94403
310/709-3966
Email: stan.apps@gmail.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
V.
Defendant
University of South Florida Board of represented by J. Ray Poole , Jr.
Trustees Constangy, Brooks, Smith, & Prophete,
LLP
200 W Forsyth St - Ste 1700
PO Box 41099
Jacksonville, FL 32203
904/356-8900
Fax: 904/356-8200
Email: rpoole@constangy.com
TERMINATED: 03/08/2017
LEAD ATTORNEY
John F. Dickinson
Constangy, Brooks, Smith, & Prophete,
LLP
https://ecf.flmd.circ11.dcn/cgi-bin/DktRpt.pl?15569731976339-L_1_0-1 4/27/2017
PO Box 41099
A-1491 Jacksonville, FL 32203
904/356-8900
Fax: 904/356-8200
Email: jdickinson@constangy.com
LEAD ATTORNEY
John Sikes Gibbs , III

LLP
PO Box 41099
404/885-3093
Fax: 404/885-3900
Email:
Evan.Gibbs@TroutmanSanders.com
LEAD ATTORNEY
Lori K. Mans
LLP
PO Box 41099
904/356-8900
Fax: 904/356-8200
Email: lmans@constangy.com
LEAD ATTORNEY
Mediator
Christopher M. Shulman represented by Christopher M. Shulman
TERMINATED: 03/22/2017 Shulman ADR Law, P.A.
5111 Ehrlich Rd Ste 120
Tampa, FL 33624
813/935-9922
Fax: 813/333-7326
Email: chris@shulmanadrlaw.com
LEAD ATTORNEY
Date Filed # Docket Text

03/17/2016 1 NOTICE OF REMOVAL from 13th Judicial Circuit in and for Hillsborough
County, Florida, case number 16-CA-000669 filed in State Court on 1/22/16.
A-1492 Filing fee $ 400, receipt number tpa 035597 filed by University of South Florida
Board of Trustees. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Civil
Cover Sheet)(BSN) (Entered: 03/18/2016)
03/17/2016 2 COMPLAINT against University of South Florida Board of Trustees with Jury
Demand filed by Nausheen Zainulabeddin . Originally filed in state court on
1/22/16. (Attachments: # 1 Exhibit)(BSN) Modified on 3/18/2016 (BSN).
(Additional attachment(s) added on 4/22/2016: # 1 Exhibit) (BSN). (Entered:
03/18/2016)
03/21/2016 3 RELATED CASE ORDER AND NOTICE of designation under Local Rule
3.05 - track 2. Issued by Deputy Clerk on 3/21/2016. (AR) (Entered:
03/21/2016)
03/24/2016 4 MOTION to Dismiss Plaintiff's Complaint and For More Definite Statement and
Supporting Memorandum of Law by University of South Florida Board of
Trustees. (Gibbs, John) (Entered: 03/24/2016)
03/25/2016 5 NOTICE of pendency of related cases per Local Rule 1.04(d) by University of
South Florida Board of Trustees. Related case(s): No (Gibbs, John) (Entered:
03/25/2016)
03/30/2016 6 RESPONSE in Opposition re 4 MOTION to Dismiss Plaintiff's Complaint and
For More Definite Statement and Supporting Memorandum of Law filed by
Nausheen Zainulabeddin. (Attachments: # 1 Exhibit A)(Apps, Stanley) (Entered:
03/30/2016)
03/30/2016 7 NOTICE of pendency of related cases re 3 Related case order and track 2 notice
per Local Rule 1.04(d) by Nausheen Zainulabeddin. Related case(s): yes (Apps,
Stanley) (Entered: 03/30/2016)
04/04/2016 8 CASE MANAGEMENT REPORT. (Gibbs, John) (Entered: 04/04/2016)
04/06/2016 9 CASE MANAGEMENT AND SCHEDULING ORDER: Discovery due by
1/3/2017, Dispositive motions due by 2/1/2017, Pretrial Conference set for
TUESDAY, MAY 2, 2017 at 9:15 AM in Tampa Courtroom 17 before Judge
James S. Moody Jr., Jury Trial set for JUNE 2017 trial term in Tampa
Courtroom 17 before Judge James S. Moody Jr. Signed by Judge James S.
Moody, Jr. on 4/6/2016. (AR) (Entered: 04/06/2016)
04/13/2016 10 ORDER: Defendant's Motion to Dismiss and For More Definite Statement 4
is DENIED. Defendant shall file an answer within fourteen (14) days of the
entry of this order. Signed by Judge James S. Moody, Jr. on 4/13/2016. (LN)
(Entered: 04/13/2016)
04/27/2016 11 ANSWER and affirmative defenses to Complaint by University of South Florida
Board of Trustees.(Gibbs, John) (Entered: 04/27/2016)
09/08/2016 12 Unopposed MOTION for Gibbs to withdraw as attorney by University of South
Florida Board of Trustees. (Poole, J.) Motions referred to Magistrate Judge
Thomas G. Wilson. (Entered: 09/08/2016)
09/09/2016 13 ENDORSED ORDER granting 12 Motion to Withdraw as Attorney.
Attorney John Sikes Gibbs terminated. Attorney John F. Dickinson is
directed to file a Notice of Appearance in this case. Signed by Judge James S.
A-1493 Moody, Jr on 9/9/2016. (LN) (Entered: 09/09/2016)

11/09/2016 14 ORDER referring case to mediation and directing selection of a mediator on
or before 12/9/2016. Mediation shall be conducted on or before 3/1/2017.
Signed by Judge James S. Moody, Jr on 11/9/2016. (LN) (Entered:
11/09/2016)
11/29/2016 15 Joint MOTION for Extension of Time to Complete Discovery by University of
South Florida Board of Trustees. (Poole, J.) (Entered: 11/29/2016)
11/30/2016 16 ENDORSED ORDER granting 15 the Parties' Joint Motion for Extension of
Time to Complete Discovery. Discovery shall be completed by February 1,
2017. Dispositive Motions are now due February 4, 2017. All other dates in
the Case Management Order remain unchanged. Signed by Judge James S.
Moody, Jr on 11/30/2016. (RWL) (Entered: 11/30/2016)
12/09/2016 17 NOTICE OF SELECTION of Christopher M. Shulman as mediator by University
of South Florida Board of Trustees. (Poole, J.) (Entered: 12/09/2016)
12/13/2016 18 ORDER appointing Christopher M. Shulman as mediator in this action.
Mediation Conference set for FEBRUARY 10, 2017. Signed by Judge James
S. Moody, Jr. on 12/13/2016. (LN) (Entered: 12/13/2016)
02/01/2017 19 MOTION to Take Deposition from Dr. Joanne Valeriano-Marcet Subsequent to
Close of Discovery, with Incorporated Statement of Good Cause Wherefore by
Nausheen Zainulabeddin. (Attachments: # 1 Exhibit A)(Apps, Stanley) Motions
referred to Magistrate Judge Thomas G. Wilson. (Entered: 02/01/2017)
02/02/2017 20 ORDER granting 19 Motion to Take Deposition of Dr. Joanne Valeriano-
Marcet on February 3, 2017. See Order for further details. Signed by
Magistrate Judge Thomas G. Wilson on 2/2/2017. (DMS) (Entered:
02/02/2017)
02/03/2017 21 Joint MOTION to extend time to Complete Mediation by University of South
Florida Board of Trustees. (Poole, J.) (Entered: 02/03/2017)
02/04/2017 22 MOTION for summary judgment by University of South Florida Board of
Trustees. (Poole, J.) (Entered: 02/04/2017)
02/04/2017 23 NOTICE by University of South Florida Board of Trustees re 22 MOTION for
summary judgment (Attachments: # 1 Exhibit Deposition of Nausheen
Zainulabeddin, # 2 Exhibit Deposition of Nausheen Zainulabeddin Part 2, # 3
Exhibit Deposition of Dr. Deborah Roth and Exhibits Thereto, # 4 Exhibit
Deposition of Dr. Ambuj Kumar and Exhibits Thereto, # 5 Exhibit Deposition of
Dr. Saundra Stock, # 6 Exhibit Deposition of Dr. Saundra Stock and Exhibits
Thereto Part 2)(Poole, J.) (Entered: 02/04/2017)
02/06/2017 24 ENDORSED ORDER granting 21 Joint Motion to extend time to conduct
mediation. Extension granted through MARCH 1, 2017. Signed by Judge
James S. Moody, Jr. on 2/6/2017. (LN) (Entered: 02/06/2017)
02/09/2017 25 NOTICE of withdrawal of motion by Nausheen Zainulabeddin re 19 MOTION to
Take Deposition from Dr. Joanne Valeriano-Marcet Subsequent to Close of
Discovery, with Incorporated Statement of Good Cause Wherefore filed by
Nausheen Zainulabeddin (Apps, Stanley) (Entered: 02/09/2017)
A-1494
02/19/2017 26 STATEMENT of undisputed facts re 27 Response to re: 22 MOTION for
summary judgment Statement of DISPUTED MATERIAL FACTS, precluding
entry of summary judgment by Nausheen Zainulabeddin.. (Attachments: # 1
Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Apps, Stanley) Modified on 2/21/2017
(BSN). (Entered: 02/19/2017)
02/19/2017 27 RESPONSE in Opposition re 22 MOTION for summary judgment with
supporting Memorandum of Law filed by Nausheen Zainulabeddin. (Apps,
Stanley) (Entered: 02/19/2017)
02/19/2017 28 NOTICE by Nausheen Zainulabeddin re 27 Response in Opposition to Motion
Notice of Filing Affidavit of the Plaintiff in support of Plaintiff's Response in
Opposition to Summary Judgment (Attachments: # 1 Affidavit of Nausheen
Zainulabeddin, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Apps, Stanley)
(Entered: 02/19/2017)
02/19/2017 29 NOTICE by Nausheen Zainulabeddin re 27 Response in Opposition to Motion
Notice of Filing Deposition Transcript of Dr. Steven Specter, Ph.D.
(Attachments: # 1 Exhibit Deposition of Steven Specter, # 2 Exhibit, # 3 Exhibit,
# 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10
Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16
Exhibit)(Apps, Stanley) (Entered: 02/19/2017)
02/19/2017 30 NOTICE by Nausheen Zainulabeddin re 27 Response in Opposition to Motion,
23 Notice (Other) Notice of Filing COMPLETE Deposition Transcript of Dr.
Ambuj Kumar, M.D., including Exhibit omitted by Defendant (Attachments: # 1
Exhibit Deposition of Ambuj Kumar, MD, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, #
5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11
Exhibit)(Apps, Stanley) (Entered: 02/19/2017)
02/27/2017 31 Joint MOTION to extend time to conduct Mediation until March 22, 2017 by
Nausheen Zainulabeddin. (Apps, Stanley) (Entered: 02/27/2017)
02/28/2017 32 ENDORSED ORDER granting 31 Joint Motion to extend time to conduct
Mediation until MARCH 22, 2017. Signed by Judge James S. Moody, Jr. on
2/28/2017. (LN) (Entered: 02/28/2017)
03/01/2017 33 MOTION for leave to file Reply to Plaintiff's Response in Opposition to
Defendant's Motion for Summary Judgment by University of South Florida Board
of Trustees. (Poole, J.) (Entered: 03/01/2017)
03/01/2017 34 ENDORSED ORDER granting 33 Motion for Leave to File Reply. Reply is
limited to 10 pages and shall be filed within 14 days. Signed by Judge James
S. Moody, Jr. on 3/1/2017. (LN) (Entered: 03/01/2017)
03/07/2017 35 MOTION for J. Ray Poole to withdraw as attorney and for Substitution of
Counsel and Supporting Memorandum of Law by University of South Florida
Board of Trustees. (Dickinson, John) Motions referred to Magistrate Judge
Thomas G. Wilson. (Entered: 03/07/2017)
03/08/2017 36 ORDER granting 35 Motion to Withdraw as Attorney and for Substitution
of Counsel. Attorney J. Ray Poole, Jr., terminated. Signed by Magistrate
A-1495 Judge Thomas G. Wilson on 3/8/2017. (DMS) (Entered: 03/09/2017)

03/15/2017 37 REPLY to Response to Motion re 22 MOTION for summary judgment filed by
University of South Florida Board of Trustees. (Mans, Lori) (Entered:
03/15/2017)
03/18/2017 38 MOTION for leave to file Surreply of no more than 5 pages to Defendant's Reply
Memorandum to Plaintiff's Response in Opposition to Defendant's Motion for
Summary Judgment by Nausheen Zainulabeddin. (Apps, Stanley) (Entered:
03/18/2017)
03/21/2017 39 ENDORSED ORDER granting 38 Motion for Leave to File Surreply.
Surreply shall be filed within seven (7) days of the date of this Order. Signed
by Judge James S. Moody, Jr. on 3/21/2017. (LN) (Entered: 03/21/2017)
03/22/2017 40 MEDIATION report Hearing held on 3/22/2017. Hearing outcome: IMPASSE.
(Shulman, Christopher) (Entered: 03/22/2017)
03/24/2017 41 MEMORANDUM in opposition re 37 Reply to Response to Motion Plaintiff's
Surreply to Defendant's Reply to Plaintiff's Response in Opposition to
Defendant's Motion for Summary Judgment filed by Nausheen Zainulabeddin.
(Attachments: # 1 Exhibit A, # 2 Exhibit B)(Apps, Stanley) (Entered:
03/24/2017)
04/19/2017 42 ORDER: Defendant's Motion for Summary Judgment (Doc. 22) is granted.
The Clerk of Court is directed to enter final judgment in favor of Defendant
and against Plaintiff. After entry of final judgment, the Clerk of Court is
directed to close this case and terminate any pending motions as moot.
Signed by Judge James S. Moody, Jr. on 4/19/2017. (AD) (Entered:
04/19/2017)
04/20/2017 43 JUDGMENT in favor of University of South Florida Board of Trustees against
Nausheen Zainulabeddin (Signed by Deputy Clerk) (BSN) (Entered: 04/20/2017)
04/26/2017 44 NOTICE OF APPEAL as to 42 Order on motion for summary judgment by
Nausheen Zainulabeddin. Filing fee not paid. (BSN) (Entered: 04/27/2017)
04/26/2017 45 MOTION for leave to appeal in forma pauperis/affidavit of indigency by
Nausheen Zainulabeddin. (Attachments: # 1 Exhibit)(BSN) Motions referred to
Magistrate Judge Thomas G. Wilson. (Entered: 04/27/2017)
A-1496
A-1497
Case
Case8:16-cv-00637-JSM-TGW
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TAMPA DIVISION
Plaintiff,

BOARD OF TRUSTEES,
Defendant.
ORDER
THIS CAUSE comes before the Court upon Defendant's Motion for Summary
Judgment (Doc. 22), Plaintiff’s Response in Opposition (Doc. 27), Defendant’s Reply
(Doc. 37), and Plaintiff’s Surreply (Doc. 41). Having reviewed the Parties’ submissions
and the record evidence, the Court concludes Defendant’s motion should be granted.
BACKGROUND
Plaintiff Nausheen Zainulabeddin filed this action on January 22, 2016, asserting
six claims against her former medical school, the University of South Florida’s Morsani
College of Medicine (“USF MCOM”). Plaintiff attended the medical school from August
2009 to May 2013, at which point she was dismissed from the program. Plaintiff alleges
that USF MCOM violated Section 504 of the Rehabilitation Act because its decision to
dismiss her constituted (1) discrimination on the basis of her disability and/or (2)
retaliation in response to her requesting accommodations on the National Board of
Medical Examiners’ Comprehensive Basic Science Examination (“CSBE”). In addition,

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Plaintiff alleges that (3) USF MCOM’s Vice Dean of Educational Affairs, Dr. Specter,
breached his fiduciary duty to her, (4) Dr. Specter negligently misrepresented to her that
she did not have a disability or need accommodations for her disability, (5) USF MCOM
breached its contractual relationship with her by refusing to reimburse some of her
tuition, and (6) USF MCOM was unjustly enriched by keeping her tuition.
In its Motion for Summary Judgment, USF argues that the Court should enter
judgment for USF on all six of Plaintiff’s claims. Plaintiff concedes that her claims for
breach of contract and unjust enrichment are barred by sovereign immunity because USF
is a state agency. (Pl.’s Resp. 2.) Because Plaintiff has abandoned those two claims, the
Court will grant summary judgment on those claims without further discussion. The
Court will now outline the facts relevant to the other four claims.
RELEVANT FACTS
Before attending medical school, Plaintiff completed a Master’s degree in Medical
Sciences at USF. Midway through her Master’s program, she began to have difficulties
with her studies, particularly in preparing for the MCAT. As a result, Plaintiff sought
medical treatment. In July 2008, a psychiatrist “informally” diagnosed her with Attention
Deficit Hyperactivity Disorder (“ADHD”) and prescribed her medication for ADHD. 1
Plaintiff’s psychologist thought her difficulties were due to anxiety. (Pl. Aff. Ex. E, at 3.)
1
Plaintiff describes the diagnosis as informal because the psychiatrist made it based on
Plaintiff’s self-reported history, consultation with her psychologist, and a standardized
examination, as opposed to a neuropsychological evaluation. (Zainulabeddin Dep. 60:7-20, 65:11-
18, 67:3-14.)
2
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Nevertheless, Plaintiff took Adderall on and off from July 2008 to July 2009, and her
academic performance improved.
In August 2009, Plaintiff enrolled in USF’s Morsani College of Medicine (“USF
MCOM”). Plaintiff did not tell anyone at the school about her ADHD or anxiety or request
any accommodations. She took Adderall consistently that year. Despite this fact, she began
to have academic difficulties in her first semester. In March 2010, after thinking she had
failed a cardiology examination, she met with Dr. Specter. They discussed whether she
should take a leave of absence from school. Ultimately, Plaintiff finished out the year, and
she failed all but one of her final examinations. As a result, she did not pass her first year
of medical school.
USF MCOM has an Academic Performance Review Committee (“APRC”) that
discusses students with deficiencies in their academic performance or professional
behavior and determines what kind of corrective action to take. The APRC consists of the
medical school’s course directors. After Plaintiff failed the first year, the APRC decided
that she could repeat it subject to certain conditions. It placed her on academic probation,
required her to meet with an academic advisor monthly, and required her to obtain “a
comprehensive assessment of [her] learning style” (Pl. Aff. Ex. B), i.e., a
neuropsychological evaluation.
USF MCOM helped students obtain these evaluations because the Vice Dean of
Education recognized that students who struggled academically for no apparent reason
might have “some kind of neuropsychological deficit.” (Specter Dep. 24:16-25.) Pursuant
to USF policy, students needed a neuropsychological evaluation in order to obtain
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disability accommodations. Obtaining the evaluations “was a way of trying to make certain
that [USF MCOM] could provide all the help necessary to a student who needed help.” (Id.
at 25:3-5.)
USF MCOM referred Plaintiff for the neuropsychological evaluation and paid for
it. Plaintiff met with the evaluator, Dr. Schoenberg, on August 5, August 12, and September
2, 2010. Dr. Schoenberg issued his report on December 17, 2010. He diagnosed Plaintiff
with ADHD and moderate to severe anxiety. He recommended that Plaintiff engage in
cognitive-behavioral therapy and consider initiation of medication for her anxiety
symptoms. He also stated that she should qualify for special education services due to her
“neuropsychological deficits with primarily attention difficulties,” and he indicated that
she was likely to benefit from tutoring and taking tests in a distraction-free environment.
Dr. Schoenberg provided a copy of his report to Dr. Specter.
At some point during fall or winter of 2010, Plaintiff met with Dr. Specter, and they
discussed the report. Plaintiff did not ask Dr. Specter for a copy of the report, nor did he
give her one. The Parties dispute most other details about this meeting. Plaintiff claims that
she met with Dr. Specter in October 2010, and he told her that there was nothing wrong
with her and she did not need accommodations. According to Plaintiff, Dr. Schoenberg had
not gone over his findings with her, so she relied on what Dr. Specter said. She did not
realize that Dr. Schoenberg had not completed his report at that time. In contrast, Dr.
Specter claims that he met with Plaintiff after he received the report from Dr. Schoenberg.
He states that he reviewed the report with Plaintiff, but not in depth, because she was
already familiar with the contents of the report. According to Dr. Specter, Plaintiff did not
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think that she needed the accommodations because she was doing well in her second
attempt at the first-year curriculum.
That year (i.e., the 2010-2011 school year), Plaintiff passed the first-year
curriculum. The APRC took her off of academic probation, and she advanced to the second
year of medical school in fall 2011.
During the 2011-2012 school year, Plaintiff once again began to have academic
difficulties. In September 2011, she failed Medical Sciences 1. The APRC decided to let
Plaintiff remediate that course. Then, in December 2011, Plaintiff failed Medical Sciences
2.
On January 5, 2012, the APRC voted to dismiss Plaintiff from the medical school.
Plaintiff appealed the decision. Initially, on February 2, 2012, the APRC decided to sustain
the dismissal. However, on February 16, 2012, the APRC reconsidered its decision and
overturned the dismissal based on “new info which was not available at the previous
meeting.” (Pl. Aff. Ex. B.)
This new information appears to have been information that Plaintiff had been
diagnosed with ADHD and anxiety but had not previously received accommodations for
her disabilities. Dr. Specter explained in his deposition, “[The APRC] felt that [Plaintiff]
deserved the opportunity to be able to take her coursework with accommodations because
they had not been granted to her previously, not because anybody denied those, but because
. . . she had not applied for those accommodations.” (Specter Dep. 62:14-20.)
Ultimately, the APRC agreed that Plaintiff could repeat the second-year curriculum
in the 2012-2013 school year while on academic probation. It required her to continue to
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meet with her academic advisor monthly, coordinate with her counselor and tutor to create
an organized approach to study for the next year, and continue her enrollment in the Kaplan
Classroom Anywhere course to develop successful strategies for “studying[,] developing
integrative habits[,] [and] addressing knowledge base gaps.”2 (Id.)
On March 7, 2012, Plaintiff met with Dr. Schoenberg. She provided him with
additional historical information about the extent of her attention problems, which she had
not previous disclosed to him “[d]ue to cultural and historical factors.” (Pl. Aff. Ex. E.)
This new information did not change Dr. Schoenberg’s diagnostic impressions, but he did
update his recommendations to note that Plaintiff would “benefit from extra time to
complete assignments/tests (time and one-half).” (Id.)
During the 2012-2013 school year, Plaintiff reattempted the second-year
curriculum. She requested disability accommodations from USF’s Students with
Disabilities Services Office, and the Office approved her to take tests in a distraction-free
environment and to receive extra time on tests. Her instructors provided her with these
accommodations as well as others. For example, Plaintiff’s instructors also provided her
with a number of extensions on both assignments and tests. In addition, instructors allowed
Plaintiff to view lectures online from home instead of attending class. (Zainulabeddin Dep.
191:24-192:10.)
2
The Court notes that, although Plaintiff had not requested disability accommodations as
of February 2012, USF MCOM had already connected her with resources to help her succeed in
medical school. Dr. Specter had obtained tutors for Plaintiff, and he had also connected her to a
counseling program. These resources appear to be the “counselor” and “tutor” referenced by the
APRC.
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Despite these accommodations, Plaintiff continued to have academic problems.
Plaintiff was deficient in her “ICM proficiency.”3 (Pl. Aff. Ex. B.) In addition, she received
failing grades in two of her first semester classes—Doctoring II and Evidence-Based
Clinical Reasoning II (“EBCR II”).
Plaintiff received notification that she failed Doctoring II on March 12, 2013.
Later on March 12, Plaintiff emailed Dr. Stevenson, an Associate Dean of USF
MCOM, to request an accommodation of double the time to take the National Board of
Medical Examiners’ Comprehensive Basic Science Exam (“CBSE”). Dr. Stevenson
responded, “I would STRONGLY advise you to take the CBSE under the same testing
conditions as you will use for Step 1. If that means no accommodations, then use no
accommodations. Please speak with Dr. Specter or me before requesting these
accommodations. We want you to succeed on Step one.” (Pl. Aff. Ex. L.) Plaintiff then
replied, explaining why she wanted the extra time. Dr. Specter was cc’d on all three of
these emails.
The next day, on March 13, Plaintiff took the final examination for the Evidence-
Based Medicine (“EBM”) portion of her EBCR II class. She failed the examination, which
comprised 90% of her final grade in EBM. Because she had to pass EBM to pass EBCR
II, she did not pass EBCR II.4
3
It is not clear from the record what “ICM” stands for or what “ICM proficiency” is.
4
Plaintiff now disputes whether she should have failed EBCR II. However, it is undisputed
that the course director assigned her a failing grade and she did not appeal the grade using USF
MCOM’s internal procedures.
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Then, on March 14, the APRC had its meeting to discuss students who were
struggling academically. Plaintiff was on the APRC’s agenda because of her failing grades
in Doctoring II and EBCR II and her deficiency in ICM. The APRC voted to dismiss
Plaintiff from USF MCOM.
Plaintiff appealed the decision. In a letter dated April 5, 2013, the APRC notified
Plaintiff that it had sustained her dismissal. It explained that it was concerned about
“significant gaps in [her] knowledge, clinical performance, clinical reasoning, physical
exam skills, self-directed learning skills, data-gathering skills, and ability to logically
interpret steps and follow instructions.” (Specter Dep. Ex. 11.) It further noted that the
additional information presented in her appeal “did not convince the Committee of [her]
ability to successfully progress through the curriculum.” (Id.)
Dr. Specter attended the APRC meetings in his role as student advocate or liaison.
He was not a part of the APRC, however, and he did not vote in the meetings. In his
deposition, he explained that the APRC was also concerned that Plaintiff would not be able
to complete the four years of medical school curriculum within six years, the maximum
amount of time allowed. The third year of medical school is more challenging than the
second because students have significantly less time to study due to intensive clinical
responsibilities. The APRC did not think that Plaintiff would be able to complete the third-
year curriculum in one year and would therefore be unable to graduate from medical
school.
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Plaintiff then appealed her dismissal to the Dean of USF MCOM, Dr. Klasko. On
May 28, 2013, after having met with Plaintiff and reviewed the APRC report, Dr. Klasko
sustained the APRC’s decision.
SUMMARY JUDGMENT STANDARD
Motions for summary judgment should be granted only when the pleadings,
depositions, answers to interrogatories, admissions, and affidavits show there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The
existence of some factual disputes between the litigants will not defeat an otherwise
properly supported summary judgment motion; “the requirement is that there be no genuine
issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)
(emphasis in original). The substantive law applicable to the claimed causes of action will
identify which facts are material. Id. Throughout this analysis, the court must examine the
evidence in the light most favorable to the nonmovant and draw all justifiable inferences
in its favor. Id. at 255.
Once a party properly makes a summary judgment motion by demonstrating the
absence of a genuine issue of material fact, the nonmoving party must go beyond the
pleadings through the use of affidavits, depositions, answers to interrogatories, and
admissions and designate specific facts showing that there is a genuine issue for trial.
Celotex, 477 U.S. at 324. The evidence must be significantly probative to support the
claims. Anderson, 477 U.S. at 248-49 (1986).
9
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This Court may not decide a genuine factual dispute at the summary judgment stage.
Fernandez v. Bankers Nat’l Life Ins. Co., 906 F.2d 559, 564 (11th Cir. 1990). “[I]f factual
issues are present, the Court must deny the motion and proceed to trial.” Warrior
Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983). A dispute
about a material fact is genuine and summary judgment is inappropriate if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477
U.S. at 248; Hoffman v. Allied Corp., 912 F.2d 1379 (11th Cir. 1990). However, there must
exist a conflict in substantial evidence to pose a jury question. Verbraeken v. Westinghouse
Elec. Corp., 881 F.2d 1041, 1045 (11th Cir. 1989).
DISCUSSION
I. Plaintiff’s Disability Discrimination Claim
A. Legal Framework
Section 504 of the Rehabilitation Act of 1973 (“Rehabilitation Act”) prohibits
agencies that receive federal funding from discriminating against an “otherwise qualified
individual with a disability.” 29 U.S.C. § 794(a). Discrimination claims brought under the
Rehabilitation Act are governed by the same standards as claims brought under Title I of
the Americans with Disabilities Act of 1990 (“ADA”). Holbrook v. City of Alpharetta, 112
F.3d 1522, 1526 n.2 (11th Cir. 1997). When a plaintiff offers circumstantial evidence to
prove discrimination claims, courts analyze these claims using the burden-shifting
framework outlined by the Supreme Court in McDonnell Douglas. See Durley v. APAC,
Inc., 236 F.3d 651, 657 (11th Cir. 2000) (holding the McDonnell Douglas framework
applies to ADA disability discrimination claims).
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Under this framework, the plaintiff must first establish a prima facie case of
discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If the
plaintiff does so, the burden then shifts to the agency to articulate some legitimate,
nondiscriminatory reason for the adverse action. Id. If the agency meets this burden of
production, the presumption of discrimination raised by plaintiff’s prima facie case is
rebutted. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-56 (1981). The
plaintiff then has an opportunity to show that the agency’s proffered nondiscriminatory
reason is pretextual. Id.
B. Plaintiff Has Not Proven Her Prima Facie Case.
In order to establish a prima facie case of disability discrimination under the
Rehabilitation Act, Plaintiff must demonstrate the following: (1) she is disabled, (2) she
is a qualified individual, and (3) she was subjected to unlawful discrimination because of
her disability. J.A.M. v. Nova Se. Univ., Inc., 646 F. App'x 921, 926 (11th Cir. 2016)
(citing Cash v. Smith, 231 F.3d 1301, 1305 (11th Cir. 2000)).
An “otherwise qualified” individual is one who is able to meet all of a program’s
requirements in spite of her disability. Se. Cmty. Coll. v. Davis, 442 U.S. 397, 406 (U.S.
1979). In the context of postsecondary education, the individual must be able to meet the
academic and technical standards required by the program. J.A.M., 646 F. App'x at 926
(citing Onishea v. Hopper, 171 F.3d 1289, 1300 (11th Cir. 1999)).
In certain circumstances, an educational institution’s refusal to accommodate the
needs of a disabled individual amounts to discrimination against that individual because
of her disability. J.A.M., 646 F. App'x at 926 (citing Se. Cmty. Coll., 442 U.S. at 412-13).
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However, Plaintiff does not argue that USF MCOM discriminated against her by failing
to provide her reasonable accommodations, and in fact USF MCOM provided her
accommodations once she requested them in the 2012-2013 school year.
Instead, Plaintiff argues that USF MCOM discriminated against her on the basis of
her disability when it dismissed her from the program in spring of 2013. Plaintiff also
appears to argue that the course directors for Doctoring II and EBCR II discriminated
against her on the basis of her disability when they assigned her failing grades (i.e.,
grades of “U” for “Unsatisfactory”).5 Plaintiff has not established a prima facie case of
discrimination because she has not demonstrated that she was an “otherwise qualified”
individual or that these actions were taken “solely by reason of her . . . disability.” 29
U.S.C. § 794(a).
i. Plaintiff has not demonstrated that she is an “otherwise qualified”
individual.
Plaintiff failed her first year of medical school during the 2009-2010 school year.
She then failed the second-year curriculum during the 2011-2012 school year. And when
she repeated the second-year curriculum during the 2012-2013 school year, she continued
to have academic deficiencies. That year, Plaintiff received a number of accommodations,
like extra time on her examinations, the opportunity to take the examinations in a
5
It is not entirely clear whether Plaintiff is arguing that her Doctoring II course directors
gave her a failing grade due to her disability. She does not explicitly argue this in her Response,
nor does she dispute that she received or should have received a failing final grade in Doctoring II
in her Statement of Disputed Material Facts (Doc. 26). However, in her affidavit (Doc. 28), she
has a heading titled, “Evidence that I Was Singled out to Fail Two Courses in March 2013 Based
on My Disability . . .” The Court will address this argument out of an abundance of caution.
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distraction-free setting, and extensions on examinations and assignments, including a
three-month extension to take her Evidence-Based Medicine final examination. Despite
receiving these accommodations—and seeing the course material for the second time
around—Plaintiff did not pass ICM, Doctoring II, or EBCR II. She had to remediate these
courses.
In short, it took Plaintiff four years to complete two years of medical school, and at
the end of that four years she was still not performing satisfactorily. The APRC—the
committee of course directors tasked with reviewing students’ progress in the curriculum—
determined that Plaintiff was not performing up to USF MCOM’s standards. Even Plaintiff
herself acknowledged that she was not meeting school standards, explaining that “when
you are a repeating student there is a standard that you should not fail any classes, period.”
(Zainulabeddin Dep. 176:15-17.)
The standards USF MCOM sets for its students are entitled to deference, and USF
MCOM had no obligation to lower its standards to accommodate Plaintiff. See Wood v.
President & Trustees of Spring Hill Coll. in City of Mobile, 978 F.2d 1214, 1222-23 (11th
Cir. 1992) (citing Se. Cmty. Coll., 442 U.S. at 413). Plaintiff did not meet those standards.
Accordingly, she has not demonstrated that she was an “otherwise qualified” individual
within the meaning of the Rehabilitation Act.
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ii. Plaintiff has not demonstrated that Dr. Stock and Dr. Valeriano
in Doctoring II.
Plaintiff argues that she was singled out to fail Doctoring II due to her disability.
She points to one piece of evidence in support of this argument—that thirty-five other
students had some kind of deficiency in the final examination, but they all received a grade
of “T” for “Temporary” whereas she received a “U.”
This piece of evidence does not support Plaintiff’s argument that she was singled
out to fail because of her disability. Plaintiff has not established that the only difference
between her and the other students was that she had a disability. Instead, the undisputed
evidence indicates that Plaintiff received a “U” because of her inferior performance in the
class.
Neither “T” grades nor “U” grades are considered passing grades—the main
difference involves how much remediation will be required in order to convert the grade
into a passing grade and how quickly that remediation can be completed. In her deposition,
Dr. Stock explained that she assigned “T” grades when students had “a small[,] focal deficit
that results in a failure of a course because of something deemed to be a very small[,] easily
[or] quickly remediable deficit, not a more global knowledge or skills deficit.” (Stock Dep.
70:13-16.) For example, she would issue a “T” if the student had “performed poorly . . . on
one specific assessment,” but not if the student had “a global pattern of not doing well
throughout the course.” (Id., 70:18-24.)
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Plaintiff did not have difficulties on just one assessment like the final examination.
Instead, she had difficulties throughout the course.
Doctoring II is a skills-based course in which students learn how to interview
patients, take their histories, and conduct physical examinations. Faculty members and
senior medical students (referred to as preceptors) observe the students’ clinical
performance.
As one component of the course, students have to draft histories and physicals
(“H&Ps”), write-ups summarizing patients’ histories and physicals the student conducted
while in the clinical setting. Plaintiff’s faculty preceptor, Dr. Estevez, found Plaintiff’s
H&Ps “completely unacceptable.” (Stock Dep. Ex. 16.)
Dr. Estevez expressed additional concerns about Plaintiff’s performance at the
midpoint evaluation in November. She indicated that Plaintiff was “often unprepared” for
doctoring sessions, “need[ed] prompting through the physical examinations,” rarely spoke
up in class, and had not been keeping up with the assigned reading. (Stock Dep. Ex. 9.)
In December, Dr. Estevez emailed Dr. Stock and Dr. Valeriano, asking if students
ever failed Doctoring II. She stated that she had “serious concerns” that she had discussed
with Plaintiff, but Plaintiff had not shown much improvement. (Stock Dep. Ex. 16). She
elaborated that Plaintiff “consistently shows up unprepared, and she was embarrassingly
bad at the Male GU exam, not only displaying a lack of preparation but also a lack of
sensitivity toward the [patient].” (Id.) She further noted that Plaintiff had “lunged for [the
patient’s] private parts without introducing herself or telling him what she was about to
do.” (Id.)
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Plaintiff failed a quiz—the Course 5 quiz—when she first took it. In addition, she
did not pass the OSCE, an observed physical examination. Even though Plaintiff had been
allowed to defer the OSCE for a month, the observing physician, Dr. Slone, reported that
she was “totally unprepared,” “performed parts of the MSK station at an unacceptable
level,” and did not perform the neurology station. (Stock Dep. Ex. 21.)
Thereafter, Plaintiff failed the final clinical evaluation. The two preceptors
evaluating Plaintiff’s performance had no familiarity with her or her previous academic
performance. Dr. Stock and Dr. Valeriano rotated the preceptors for the final evaluations
“to try to give [students] a very objective grade.” Plaintiff’s preceptors rated her
performance as “below expectations without any hesitation.” (Stock Dep. Ex. 25.) In
addition, the patient Plaintiff examined “was furious with her regarding [her]
professionalism.” (Id.)
Lastly, at the end of the course, Dr. Estevez rated Plaintiff “as still [being] below
expected in some areas.” (Stock Dep. Ex. 24.)
Notably, throughout the Doctoring II course, Dr. Stock, Dr. Valeriano, and
Plaintiff’s preceptors worked with Plaintiff in an effort to help her pass the course. For
example, they gave her multiple opportunities to remediate deficiencies (e.g., by allowing
her to redo her H&Ps and retake both the Course 5 quiz and the OSCE). They provided
Plaintiff extensions on assignments and tests. When Plaintiff did not complete assignments
or tests within the extended time period granted, it does not appear that they penalized her.
In addition, Dr. Stock and Dr. Valeriano met with Plaintiff in January to discuss their
concerns, and they developed a plan intended to help her successfully pass the course.
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Despite this fact, Plaintiff did not pass Doctoring II. Dr. Stock and Dr. Valeriano
ultimately decided to assign Plaintiff a “U” grade due to her performance in Dr. Estevez’s
midpoint and final reviews, the OSCE, and the final examination.
Plaintiff has not provided evidence to suggest that Dr. Stock and Dr. Valeriano
assigned her a final grade of “U” based on her disability rather than perceived global
deficits in her skills and performance. During the course, multiple preceptors voiced that
Plaintiff was performing below expectation. Plaintiff exhibited difficulties toward the
beginning of the course and continued to exhibit difficulties throughout. Accordingly,
Plaintiff has not demonstrated that Dr. Stock and Dr. Valeriano failed her due to her
disability.
iii. Plaintiff has not demonstrated that Dr. Kumar and Dr. Roth
in EBCR II.
Plaintiff also argues that she was singled out to fail EBCR II due to her disability.
She points to a few pieces of evidence in support of this argument, including that (1) USF
MCOM has no record of her score on the Evidence-Based Medicine (“EBM”) final, (2)
based on the score Dr. Kumar orally reported to her, she should have passed EBM (and
therefore EBCR II), (3) the fourteen other students who did not pass the EBM portion of
EBCR II received a grade of “T” whereas she received a “U,” and (4) Dr. Kumar assigned
her a “U” instead of a “T” because he was told she had a global deficiency in multiple
classes and not just his.
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None of this evidence indicates that Dr. Kumar and/or Dr. Roth singled Plaintiff out
to fail based on her disability. For example, there is an obvious, non-discriminatory reason
why the EBM grading spreadsheet referenced by Plaintiff does not reflect Plaintiff’s grade
on the final examination—Dr. Kumar granted her a three-month extension to take her final,
and he drafted the spreadsheet well before she had taken it.
Although Plaintiff argues in her affidavit that she should have passed EBM based
on her score on the final, this portion of the affidavit should be disregarded as a sham.
Plaintiff’s EBM grade was based on two scores—her score on the final accounted for 90%
of her grade, and her score on the presentation accounted for 10% of her grade. In her
affidavit, Plaintiff states that Dr. Kumar told her she received a 67.5 on the final. (Pl. Aff.
¶ 65.) She argues that, when considered along with her score of 80 on the presentation, she
should have passed EBM. (Id. at ¶¶ 66-68.) However, Plaintiff’s affidavit is directly
contradicted by (1) her previous deposition testimony, in which she stated that she received
a 65 on the final (Zainulabeddin Dep. 150:20-21, 151:3, 158:12-13) and (2) her written
summary of her performance in EBCR II, in which she noted that she received a 65 (Kumar
Dep. Ex. 13; Roth Dep. Ex. 6). Plaintiff’s affidavit does not attempt to explain this
discrepancy, so the Court need not consider it. See Rollins v. TechSouth, Inc., 833 F.2d
1525, 1530 (11th Cir. 1987). If Plaintiff did indeed receive a 65 on her final, she would
have failed the class regardless of what score she received on her presentation. (See Kumar
Dep. 45:6-13, 52:12-14.)
Lastly, the fact that Dr. Kumar gave other students who failed “T’s” but Plaintiff a
“U” does not support Plaintiff’s argument that he singled her out to fail because of her
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disability. Dr. Kumar testified that he assigned “U” grades when students had more global
deficiencies and were doing poorly in other classes as well. (Kumar Dep. 59:1-25.)
Although the Court agrees that the fairness of this grading practice might be open to
question, it does not indicate that Dr. Kumar treated Plaintiff differently than similarly
situated students without disabilities. There is no evidence that other students with global
deficits but without disabilities received a “T.” The evidence indicates simply that Dr.
Kumar applied this same, possibly unfair grading practice to all of his students, not that he
singled Plaintiff out to fail because of her disability.
iv. Plaintiff has not demonstrated that the APRC or Dr. Kloski
discriminated against her when they decided to dismiss her from
USF MCOM in spring of 2013.
Plaintiff also argues that she was dismissed from USF MCOM due to discriminatory
animus. According to Plaintiff, her Doctoring II and EBCR II course directors singled her
out to fail. Therefore, she contends, the Court can infer that USF MCOM made the decision
to dismiss her based on disability discrimination. The Court disagrees.
As discussed in sections I(B)(ii) and I(B)(iii), supra, Plaintiff has not demonstrated
that her course directors assigned her “U” grades due to her disability or that they harbored
any discriminatory animus toward her. However, even if Plaintiff had proven this, it would
not demonstrate that the APRC and/or Dr. Klasko decided to dismiss her based on her
disability.
As a preliminary matter, Plaintiff has not pointed to any evidence that the APRC or
Dr. Klasko had any bias against students with disabilities. In fact, when Plaintiff failed her
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first year of medical school in 2010, the APRC decided to fund an expensive
neuropsychological evaluation so that Plaintiff could better understand her learning style
and whether she needed disability accommodations. And when the APRC first learned of
Plaintiff’s disability—after she had failed the second year of medical school and was
appealing the initial decision to dismiss her—the APRC voted to reverse her dismissal to
see if she could successfully complete the second-year curriculum with disability
accommodations.
Second, even if Plaintiff were correct that her Doctoring II and EBCR II course
directors had discriminatory animus toward her, they did not get a vote in whether she
should be dismissed. Although course directors were on the APRC, they recused
themselves from votes regarding their own students.
Likewise, even if Plaintiff had proven that her Doctoring II and/or EBCR II course
directors assigned her “U” grades because of her disability, there is no evidence that the
APRC or Dr. Klasko knew that. The APRC voted to dismiss Plaintiff because it believed
she had deficiencies in ICM, Doctoring II, and EBCR II while repeating the second-year
curriculum, and even one deficiency was grounds for dismissal. While there is no evidence
regarding why Dr. Klasko decided to sustain Plaintiff’s dismissal, there is also no evidence
that he did so because she had a disability.
For these reasons, Plaintiff has not demonstrated that USF MCOM dismissed her
due to her disability.
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C. Plaintiff Has Not Proven that USF MCOM’s Legitimate, Non-
Discriminatory Reason for her Dismissal was Pretextual.
Lastly, the Court notes that even if Plaintiff had proven her prima facie case, her
discrimination claim would still fail. USF MCOM offered a legitimate, non-discriminatory
reason for dismissing her from its program—her poor academic performance. Plaintiff
failed two years of medical school, she continued to experience academic difficulties while
repeating the curriculum with disability accommodations, and the APRC did not believe
she would be able to successfully complete the third-year and fourth-year curriculum in the
maximum time allotted.
Plaintiff may show pretext by pointing to “weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions” in USF MCOM’s proffered reason.
Brooks v. Cnty. Comm’n of Jefferson Cnty., 446 F.3d 1160, 1163 (11th Cir. 2006) (internal
quotation marks omitted). She has not done so. The APRC’s decision to dismiss Plaintiff
comported with USF MCOM’s policy, as described by both Plaintiff and Dr. Specter.
(Zainulabeddin Dep. 176:15-17; Specter Dep. 72:19-73:9.) In addition, Plaintiff has not
demonstrated that the APRC and/or Dr. Klasko treated her differently than a similarly-
situated student without a disability. See Walker v. St. Joseph’s/Candler Health Sys., Inc.,
506 F. App’x 886, 889 (11th Cir. 2013) (internal citations omitted) (“A typical means of
establishing pretext is through comparator evidence.”).
Plaintiff provides nothing more than speculation that USF MCOM dismissed her
due to her disability, as opposed to her academic performance. This is insufficient as a
matter of law.
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II. Plaintiff’s Retaliation Claim
The Rehabilitation Act includes an anti-retaliation provision that prohibits agencies
from discriminating against an individual because he or she has opposed an action that is
unlawful under the Act. Burgos-Stefanelli v. Sec'y, U.S. Dep't of Homeland Sec., 410 F.
App'x 243, 245 (11th Cir. 2011) (internal citations omitted). When plaintiffs offer
circumstantial evidence to prove a retaliation claim, courts analyze these claims using the
same burden-shifting framework outlined in section I(A), supra. Id. at 245-46 (internal
citation omitted).
To establish a prima facie case of retaliation, a plaintiff must show that (1) she
engaged in statutorily protected expression, (2) she suffered a materially adverse action,
and (3) there was some causal relationship between the two events. Simpson v. State of
Alabama Dep't of Human Res., 501 F. App'x 951, 954 (11th Cir. 2012) (citing Holifield v.
Reno, 115 F.3d 1555, 1566 (11th Cir. 1997)). In order to demonstrate a causal relationship,
the plaintiff must, at a minimum, establish that the decision-maker was actually aware of
the protected expression at the time it took the adverse action against the plaintiff. Holifield,
115 F.3d at 1566.
Plaintiff argues that she was dismissed from USF MCOM because she emailed Dr.
Stevenson on March 12, 2013 to ask for an accommodation of double the time on the
National Board of Medical Examiners’ Comprehensive Basic Science Examination
(“CBSE”), and Dr. Stevenson opposed this, so he had the APRC vote to dismiss Plaintiff
from USF MCOM two days later.
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To begin with, it is not clear that Dr. Stevenson actually opposed Plaintiff receiving
accommodations. He recommended that she take the CSBE under the same conditions that
she would take Step 1 (i.e., the Boards) because he “want[ed] [her] to succeed on Step [1].”
(Pl. Aff. Ex. L.)
In any event, there is no evidence that the APRC voted to dismiss Plaintiff due to
her email exchange with Dr. Stevenson, in large part because there is no evidence that
anyone on the APRC knew about it. It is undisputed that Dr. Stevenson was not on the
APRC, and there is no evidence that he told members of the APRC about it.
Plaintiff points out that Dr. Specter was cc’d on the email exchange and attended
the APRC meetings, so he could have influenced the APRC to retaliate against her. Again,
there is no evidence the Dr. Specter told anybody on the APRC about the emails, or that he
had even read the emails before the March 14, 2013 APRC meeting. Furthermore, although
Dr. Specter was cc’d on the email chain, he did not discourage Plaintiff from seeking an
accommodation. In fact, he wrote a letter to the National Board of Medical Examiners a
few weeks later, encouraging the agency to grant Plaintiff’s request for accommodations
on Step 1. (Specter Dep. Ex. 19.)
Under ordinary circumstances, the short amount of time between Plaintiff’s request
for accommodations and her dismissal might indicate foul play. However, the unique
circumstances in this case negate this inference. The APRC had regularly scheduled
meetings; it did not convene on March 14 specifically to discuss Plaintiff. In addition, the
APRC would have discussed Plaintiff at the March 14 meeting regardless of her emails to
Dr. Stevenson. Plaintiff was on the APRC’s agenda for that meeting because she had failed
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Doctoring II and ECBR II and had a deficiency in ICM. For reasons similar to those
outlined in sections I(B)(ii) and (iii), supra, Plaintiff has not demonstrated that she received
these grades in retaliation for requesting accommodations on the CBSE.
III. Plaintiff’s Breach of Fiduciary Duty Claim
In addition to her claims under the Rehabilitation Act, Plaintiff contends that Dr.
Specter breached his fiduciary duty to her when he allegedly (1) advised her not to take a
leave of absence from medical school in spring of 2010 and (2) told her that she did not
have a disability in fall of 2010.
Under Florida law, there is a four-year statute of limitations for breach of fiduciary
duty claims. Fla. Stat. § 95.11(3); Patten v. Winderman, 965 So. 2d 1222, 1224 (Fla. Dist.
Ct. App. 2007). The cause of action accrues when the last element of the cause of action
occurs, and the “delayed discovery” doctrine does not toll the running of the statute of
limitations for these claims. Davis v. Monahan, 832 So. 2d 708, 709 (Fla. 2002).
The elements of a cause of action for breach of fiduciary duty are (1) the existence
of a fiduciary duty, (2) a breach of that duty, and (3) damages that are proximately caused
by the breach. Thus, Plaintiff’s breach of fiduciary duty claim arose in 2010, when the
alleged breach and resulting damages occurred.
Plaintiff did not file this case until January 22, 2016, well after the four-year
limitations period. Plaintiff concedes that her claim is facially time-barred but argues that
USF should be equitably estopped from asserting the statute of limitations because its
actions prompted Plaintiff to delay filing her claim.
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Courts apply equitable estoppel to prevent a defendant from asserting the statute of
limitations as a defense when the defendant’s misconduct has induced the plaintiff to
forbear bringing suit within the applicable limitations period. Major League Baseball v.
Morsani, 790 So. 2d 1071, 1079 (Fla. 2001) (internal citation omitted). “Stated another
way, ‘[e]quitable estoppel arises where the parties recognize the basis for suit, but the
wrongdoer prevails upon the other to forego enforcing his right until the statutory time has
lapsed.’” Black Diamond Properties, Inc. v. Haines, 69 So. 3d 1090, 1093 (Fla. Dist. Ct.
App. 2011) (internal citations omitted); see also Fox v. City of Pompano Beach, 984 So.
2d 664, 667 (Fla. Dist. Ct. App. 2008) (internal citations omitted) (plaintiff can raise
equitable estoppel when defendant willfully induced plaintiff to forego suit until after the
limitations period has ended). “Equitable estoppel presupposes a legal shortcoming in a
party’s case that is directly attributable to the opposing party’s misconduct.” Major League
Baseball, 790 So. 2d at 1077. The doctrine is based on the equitable principle that a party
should not be permitted to profit from its own wrongdoing. Id. at 1079.
Plaintiff argues equitable estoppel applies in this case because Dr. Specter caused
her to forego bringing legal suit when he helped her get readmitted to the medical school
in 2012 and pretended to act as her advocate when appealing her second dismissal in 2013.
Even if the Court assumed that these actions constituted misconduct intended to discourage
Plaintiff from filing suit, this conduct ended when USF MCOM dismissed Plaintiff in May
2013, leaving Plaintiff with about one to one-and-a-half years to file suit. USF did not
induce Plaintiff to forbear bringing suit until after the limitations period had ended. Thus,
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Plaintiff’s failure to file suit is not directly attributable to USF’s conduct, and equitable
estoppel does not apply.
Plaintiff also argues that the Court should apply equitable estoppel because USF has
allegedly engaged in affirmative misconduct in order to conceal its wrongdoing. She relies
on a Florida Supreme Court case, S.A.P., for this proposition. S.A.P. involved unique
circumstances, in which a young foster child was sexually abused by her foster parents,
and the Department of Health and Rehabilitative Services actively concealed the abuse by
falsifying records and hindering the police investigation into the abuse. Florida Dep't of
Health & Rehab. Servs. v. S.A.P, 835 So. 2d 1091 (Fla. 2002). The foster parents and the
Department were the only possible plaintiffs who could bring suit on the child’s behalf.
The child had no memory of the abuse until her late teenage years, when an internal
investigation of the Department released records documenting the abuse. Id. Shortly
thereafter, she sued the Department for its negligence during her foster care placement, and
the court held that the Department could not assert the statute of limitations as a defense to
her untimely suit. Id.
Since S.A.P. was decided, a few courts have cautioned that the decision was
unique to the extraordinary facts of that case and was not intended to extend the law of
equitable estoppel beyond its historical use. See Ryan v. Lobo De Gonzalez, 921 So. 2d
572, 577 (Fla. 2005) (Cantero, J., dissenting); Rubio v. Archdiocese of Miami, Inc., 114
So. 3d 279, 283 (Fla. Dist. Ct. App. 2013). Moreover, this case is factually dissimilar.
Plaintiff was not a minor dependent on USF MCOM to bring suit on her behalf during the
limitations period; she was an adult who understood the basis for her cause of action at
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the time it accrued. Plaintiff has not demonstrated that USF MCOM actively concealed
Dr. Specter’s alleged breaches of fiduciary duty from her during the limitations period.
Indeed, she admitted that she contemplated taking legal action due to Dr. Specter’s
conduct as far back as 2012 (Pl. Aff. ¶¶ 41-42).
For these reasons, the doctrine of equitable estoppel is not applicable to this case.
Plaintiff’s claim for breach of fiduciary duty is time-barred.
IV. Plaintiff’s Negligent Misrepresentation Claim
Lastly, Plaintiff alleges that Dr. Specter negligently misrepresented to her that she
did not have a disability or need accommodations for her disability when they discussed
the results of her neuropsychological evaluation in fall of 2010.
USF argues that this claim is also time-barred by the four-year statute of limitations.
In addition, it argues that Plaintiff cannot sue USF for Dr. Specter’s alleged negligent
misrepresentation because it has sovereign immunity.
The State of Florida and its agencies have sovereign immunity and cannot be sued
unless the Florida Legislature has waived that privilege. See Pan-Am Tobacco Corp. v.
Dep't of Corr., 471 So. 2d 4, 5 (Fla. 1984) (citing Fla. Const. art. X, § 13). Although the
State has generally waived its immunity for torts, Fla. Stat. § 768.28, it has retained
immunity for torts committed in bad faith by its employees, Fla. Stat. § 768.28(9). USF
argues that bad faith is a necessary element of a negligent misrepresentation claim because
negligent misrepresentation sounds in fraud and bad faith is a necessary element of a fraud
claim. Therefore, it argues, sovereign immunity bars Plaintiff’s negligent
misrepresentation claim against it.
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Historically, in Florida, a claim for negligent misrepresentation has sounded in
fraud. Souran v. Travelers Ins. Co., 982 F.2d 1497, 1511 (11th Cir. 1993) (Cox, J.,
concurring in part and dissenting in part) (citing Watson v. Jones, 25 So. 678, 683
(1899); Ostreyko v. B.C. Morton Org., Inc., 310 So. 2d 316, 318 (Fla. Dist. Ct. App.1975)).
Take, for example, the elements of a negligent misrepresentation claim described in
Atlantic Nat. Bank of Florida v. Vest—an actionable suit requires (1) misrepresentation of
a material fact, (2) the representor must either know of the misrepresentation, make the
representation without knowledge as to its truth or falsity, or make the representation under
circumstances in which he ought to have known of its falsity, (3) the representor must
intend that the representation induce another to act on it, and (4) injury must result to the
party acting in justifiable reliance on the misrepresentation. 480 So. 2d 1328, 1331-32 (Fla.
Dist. Ct. App. 1985). The legal scienter articulated in the second element is the same as
that to establish fraud. See Parker v. State of Florida Bd. of Regents ex rel. Florida State
Univ., 724 So. 2d 163, 168 (Fla. Dist. Ct. App. 1998) (internal citations omitted). As a
result, courts have applied the heightened pleading standard and the statute of limitations
for fraud to negligent misrepresentation claims. E.g., McGee v. JP Morgan Chase Bank,
NA, 520 F. App'x 829, 831 (11th Cir. 2013) (applying Rule 9(b) pleading standard);
Ostreyko, 310 So. 2d at 318 (applying statute of limitations for fraud because “negligent
misrepresentation is considered tantamount to actionable fraud”).
Florida state courts have stated that intentional misconduct or bad faith is a
necessary element of fraud. First Interstate Dev. Corp. v. Ablanedo, 511 So. 2d 536, 539
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(Fla. 1987) (intentional misconduct); Parker, 724 So. 2d at 169 (bad faith). This supports
USF’s argument that it has sovereign immunity in regard to Plaintiff’s claim.
That said, it appears that today a litigant may have a cause of action for negligent
misrepresentation without proving fraud or that the person who made the representation
did so in bad faith. See Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So. 2d 334 (Fla.
1997) (adopting the Restatement (Second) of Torts’ position on negligent
misrepresentation and explaining that comparative negligence principles should apply to
negligent misrepresentation because a negligent misrepresenter who has “no intent to
deceive but only good faith coupled with negligence” is less culpable than a fraudulent
misrepresenter); Fla. Std. Jury Instr. (Civ.) 409.8 (requiring a plaintiff to prove just that the
representer made a statement that he believed to be true but was in fact false and that he
was negligent in making the statement because he should have known it was false).
It is not clear from Plaintiff’s Response under what theory of liability she is
proceeding. She did not list the elements of her negligent misrepresentation claim, and the
Court cannot discern whether she intends to argue that Dr. Specter knew he was telling her
a false statement or instead believed he was telling her the truth.
Ultimately, however, it does not matter. If Plaintiff intends to proceed on a theory
of liability for negligent misrepresentation that sounds in fraud, she must necessarily prove
that Dr. Specter acted in bad faith, so USF would be immune from suit. If Plaintiff instead
intends to proceed on a theory of liability that arises out of negligence, her claim is barred
by the four-year statute of limitations. Fla. Stat. § 95.11(3)(a). Her claim arose in fall of
2010, when Dr. Specter allegedly made the false representation and Plaintiff relied on it,
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yet Plaintiff did not file suit until 2016. Equitable estoppel does not apply for the reasons
discussed in section III, supra.
For the foregoing reasons, it is ORDERED AND ADJUDGED that:
1. Defendant’s Motion for Summary Judgment (Doc. 22) is granted.
2. The Clerk of Court is directed to enter final judgment in favor of Defendant
and against Plaintiff.
3. After entry of final judgment, the Clerk of Court is directed to close this case
and terminate any pending motions as moot.
DONE and ORDERED in Tampa, Florida, on April 19, 2017.
Copies furnished to:

Counsel/Parties of Record
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TAMPA DIVISION
Plaintiff,

BOARD OF TRUSTEES,
Defendant.
___________________________________/
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

AND SUPPORTING MEMORANDUM OF LAW
COMES NOW Defendant, the University of South Florida Board of Trustees (hereinafter
referred to as “Defendant” or “USF”), by and through its undersigned attorneys, pursuant to Rule
56 of the Federal Rules of Civil Procedure, and files its Motion for Summary Judgment and
Supporting Memorandum of Law as follows:
I. Overview of Plaintiff’s Claims
At all times relevant to this action, Plaintiff was a medical student in the Doctor of
Medicine Program at USF’s Morsani College of Medicine (hereinafter “MCOM”). (Doc. 2, ¶ 18)
Plaintiff began her medical studies at MCOM during the 2009-2010 academic year. (Id.) Plaintiff
failed her first year of studies in medical school and had to repeat the first year of the Doctor of
Medicine Program during the 2010-2011 academic year. (Id. at ¶¶ 30-31) Plaintiff thereafter
continued to fail academic courses in the Doctor of Medicine Program and was dismissed from
the Program in January 2012. (Id. at ¶¶ 50, 56) However, Plaintiff’s dismissal was subsequently
reversed, and she was permitted to remain in the Program on academic probation. (Id. at ¶¶ 57-64)
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At that point, although Plaintiff had been in the Doctor of Medicine Program for nearly three (3)
years, she had only successfully completed one (1) year. (Id. at ¶ 66) Plaintiff also did not
successfully complete the second year of the Doctor of Medicine Program and had to repeat it
during the 2012-2013 academic year. (Id. at ¶¶ 79-80) In short, although Plaintiff engaged in
medical studies at MCOM for four (4) academic years, she only successfully completed two (2)
years in the Doctor of Medicine Program. In March 2013, Plaintiff was dismissed from the Doctor
of Medicine Program for academic reasons. (Id. at ¶¶ 115-116)
Plaintiff’s Complaint contains six (6) counts. In Count I, Plaintiff contends that USF is
vicariously liable for a purported breach of fiduciary duties owed to Plaintiff by USF’s Dean of
Student Affairs for the MCOM. In Count II, Plaintiff claims that USF is vicariously liable for
purported negligent misrepresentations made to Plaintiff by USF’s Dean of Student Affairs for the
MCOM. In Count III, Plaintiff contends that USF breached the terms of its “contractual
relationship” with her by failing to issue refunds to her of tuition that she paid for the two (2)
unsuccessful academic years that she spent at MCOM. In Count IV, Plaintiff contends that USF
was unjustly enriched when it failed to issue refunds to her of tuition that she paid for the two (2)
unsuccessful academic years that she spent at MCOM. In Count V, Plaintiff claims that USF
discriminated against her on the basis of a disability while she was a student at MCOM, in violation
of Section 504 of the Rehabilitation Act. Finally, in Count VI, Plaintiff claims that USF retaliated
against her while she was a student at MCOM, in violation of Section 504 of the Rehabilitation
Act.
For the reasons set forth herein, USF respectfully submits that this Court should grant
summary judgment in its favor with respect to all of Plaintiff’s claims against it.
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II. Statement of Undisputed Material Facts
A. USF
USF is a state university. Section 1000.21(6)(d), Fla. Stat. The Board of Trustees of USF
is the legal entity with the power to sue and be sued in the name of USF. Section 1001.72, Fla.
Stat. Plaintiff admits that USF “is a state agency or subdivision of the State of Florida.” (Doc. 2, ¶
9)
B. Prior to Medical School
Between the Fall of 2007 and Summer of 2009, Plaintiff attended USF’s Master’s Program
in Medical Sciences. (Pl. Depo. p. 74, l. 3-18; Doc. 2, ¶ 11) On July 1, 2008, Plaintiff was
“informally” diagnosed as potentially having Attention Deficit Hyperactivity Disorder (hereinafter
“ADHD”) and/or Generalized Anxiety Disorder. (Pl. Depo. p. 64, l. 23 – p. 68, l. 22; Doc. 2, ¶¶
13-15) Her physician initially prescribed the medication “Concerta,” but was subsequently
prescribed “Adderall” for her ADHD. (Pl. Depo. p. 63, l. 12-18 ; Doc. 2, ¶ 15) She was first
prescribed Adderall in July 2008, and her dosage was increased in May 2009. (Pl. Depo. p. 57, l.
1 – p. 62, l. 8; p. 73, l. 17 – p. 74, l. 2) She sought treatment because she was doing poorly in one
of her classes and was having difficulty with her studies. (Pl. Depo. p. 57, l. 1 – p. 62, l. 8; p. 74,
l. 19 – p. 75, l) Once Plaintiff began taking the Adderall, it seemed to help her in her studies in the
Master’s Program. (Pl. Depo. p. 74, l. 19 – p. 75, l. 24)
C. Plaintiff’s Participation In USF’s Doctor of Medicine Program
In August 2009, Plaintiff began her studies in the Doctor of Medicine Program at MCOM.
She did not tell anyone at MCOM about her “informal” ADHD diagnosis, and she did not indicate
that she needed any accommodations. (Pl. Depo. p. 83, l. 16 – p. 84, l. 23) Between August 2009
and April 2010, Plaintiff continued to take Adderall. (Pl. Depo. p. 81, l. 14 – p. 83, l. 3) Although
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Plaintiff was taking Adderall, she nonetheless began having academic difficulties during her first
semester in medical school. (Pl. Depo. p. 83, l. 4-15)
On March 1, 2010, during Plaintiff’s second semester in medical school, she contacted Dr.
Steven Specter, the Associate Dean for Student Affairs at USF’s MCOM, spoke with him about
her academic difficulties in the Doctor of Medicine Program, and told him that she had previously
been “informally” diagnosed with ADHD. (Pl. Depo. p. 84, l. 24 – p. 89, l. 14) She went to Dr.
Specter because she believed that she had done poorly on a cardiology examination that she had
just taken. (Id.) She asked Dr. Specter whether she should take a leave of absence from the
Program, and Dr. Spector suggested that she not do so but instead try to successfully complete the
academic year. (Pl. Depo. p. 124, l. 18 – p. 126, l. 24; Doc. 2, ¶ 26) At that time, the student
handbook -- which was readily available to Plaintiff -- set forth the circumstances under which
such a leave of absence would be granted by MCOM. (Doc. 2 at ¶ 28; Doc. 2 Ex. B, p. 35) Thus,
Plaintiff did not need to rely upon Dr. Specter for advice concerning her eligibility for such leave.
Moreover, pursuant to the terms set forth in the handbook, the decision whether to place a student
on such a leave is absence could not have been made by Dr. Specter, but was instead to be made
by the Vice Dean for Educational Affairs. (Id.) Therefore, Plaintiff presumably knew -- or if she
had read the student handbook she should have known – that Dr. Specter did not have the authority
to decide whether a student could take such leave.
Despite taking Adderall, Plaintiff did not successfully complete her first year in medical
school. She failed all of her final examinations, with the exception of one. (Pl. Depo. p. 97, l. 5-
16) Thus, during the 2010-2011 academic year, Plaintiff was permitted to repeat her first year of
medical school during which time she was on academic probation. (Pl. Depo. p. 174, l. 19 – p.
176, l. 11)
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During the 2011-2012 academic year, after Plaintiff had successfully repeated her first
year, she was taken off of academic probation and underwent her second year of medical school.
(Id.) Plaintiff again began having academic problems. She failed two (2) courses, so after engaging
in the proper administrative process and following the requisite internal procedures, the Academic
Performance Review Committee (“APRC”) decided in January 2012 to dismiss Plaintiff from the
Program for academic reasons. (Pl. Depo. p. 178, l. 12 – p. 179, l. 22)
The January 2012 decision to dismiss Plaintiff from the Program was subsequently
reversed, but Plaintiff ultimately failed and had to repeat her second year in the Program. (Doc. 2
at ¶¶ 79-80) When Plaintiff repeated her second year in the Program, which was during the 2012-
2013 academic year, she continued to have academic problems. (Pl. Depo. p. 194, l. 16 – p. 198,
l. 21; p. 204, l. 1-22) Thus, in March 2013, the APRC again engaged in the proper administrative
process and following the requisite internal procedures decided to terminate Plaintiff from USF’s
Doctor of Medicine Program. (Pl. Depo. p. 197, l. 17 – p. 198, l. 21)
D. Accommodations Provided to Plaintiff
Plaintiff admits that, while she was a student in USF’s Doctor of Medicine Program, she
was afforded the following opportunities to overcome her academic problems: (1) she was
permitted to repeat her first and second years in medical school after she failed both of those years
in their entirety on her first attempt; (2) examinations were repreatedly postponed (Pl. Depo. at p.
155, l. 16 – p. 159, l. 21; p. 192, l. 25 – p. 193, l. 19; p. 194, l. 16 – p. 196, l. 5; p. 209, l. 19 – p.
210, l. 10); (3) she had extra time to complete examinations (Pl. Depo. p. 191, l. 22 – p. 192, l. 24);
(4) she was permitted to take examinations in a distraction free environment (Pl. Depo. p. 191, l.
22 – p. 192, l. 24); and, (5) she was provided tutors (Pl. Depo. p. 113, l. 25 – p. 115, l. 20).
Plaintiff also admitted in her deposition that during the 2009-2010 and 2011-2012
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academic years, no one held her to a different standard than other students. (Pl. Depo. p. 160, l. 5
– p. 161, l. 7) She also admitted that, when she repeated her first and second years in the program,
she was held to the same standard as other repeating students. (Pl. Depo. p. 161, l. 8 – p. 163, l. 9)
To illustrate, Plaintiff was provided extraordinary accommodations after she failed the
Evidence Based Clinical Reasoning II (“EBCR II”) course and was repeating it during the 2012-
2013 academic year. Dr. Roth, who was a co-director of the EBCR II course that year, gave an
assignment to Plaintiff and other repeating students that they each prepare a case study. (Roth
Depo. p. 56, l. 18-23) Each of the repeating students were given the same assignment, and each
was given a November 2 deadline to complete the assignment. (Roth Depo. p. 57, l. 16 – p. 58, l.
12; Roth Depo. Ex. 13) On November 10, eight (8) days after the assignment deadline, Plaintiff
forwarded an email to Dr. Roth about the assignment and that fact that it was not complete. (Roth
Depo. p.58, l. 16-23 and Ex. 13) On November 26, Dr. Roth sent an email to Plaintiff, wherein she
explained that the work Plaintiff had done on the assignment was inadequate, and Dr. Roth gave
her yet more time, until one week after the end of the course, to rework and submit the assignment.
(Roth Depo. p. 59, l. 15 – p. 60, l. 9) As of January 9, more than two (2) months after the original
due date, Plaintiff still had not completed and turned in her reworked assignment. (Roth Depo. p.
60, l. 10-19; Roth Depo. Ex. 14) Nonetheless, Dr. Roth did not penalize Plaintiff because of the
delinquency. (Roth Depo. p. 60, l. 20-23) Plaintiff was also given a two month extension of time
to take a final examination in the EBCR II course. (Roth Depo. p. 61, l. 5 – p. 63, l. 6; Roth Depo.
Ex. 17) Despite having received a lengthy extension of time to take the final examination, Plaintiff
still not pass it. (Roth Depo. p. 63, l. 12-17; Roth Depo. Ex. 6) Nonetheless, Plaintiff was afforded
the opportunity to re-take the examination, and she even received an extension of time in which to
do so. (Roth Depo. p. 63, l. 12 – p. 64, l. 7; Roth Depo. Ex. 6 and 18)
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Dr. Kumar was the other co-director of the EBCR II course. (Kumar Depo. p. 5, l. 16 – p.
7, l. 3) He testified in deposition that on one occasion Plaintiff simply failed to show up to take a
test. Rather than give Plaintiff a failing grade on the test, however, Dr. Kumar gave her an
incomplete. (Kumar Depo. p. 29, l. 5-24) On another occasion, Plaintiff requested that she be given
twice as much time to complete an examination, which he granted. (Kumar Depo. p. 30, l. 14 – p.
31, l. 9) In all, Plaintiff was permitted to make up examinations many times over the years. (Kumar
Depo. p. 65, l. 24 – p. 67, l. 20) He also agreed to postpone one of her examinations. (Kumar Depo.
p. 36, l. 13 – p. 37, l. 11; Kumar Depo Ex. 9 and 10)
Plaintiff also had difficulties in her Doctoring II course. According to Dr. Stock, who taught
Doctoring II, Plaintiff asked that she be permitted to postpone the requirement that she participate
in pediatric rounds, there were times when Plaintiff was prepared for class, times when Plaintiff
delayed taking course tests, and times when she did not turn in assignments on time. (Stock Depo.
p. 106, l. 11 – p. 107, l. 24; p. 110, l. 11 – p. 112, l. 8) The “histories and physicals” (“H&Ps”) that
Plaintiff wrote up on patients that she saw in a clinical setting were inadequate, so she was
instructed to re-write them. (Stock Depo. p. 66, l. 9 – p. 67, l. 1)
III. Argument and Authority
A. The Standard for Summary Judgment
Summary judgment is appropriate if there exists no genuine issue of material fact such that
the moving party is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); Fed. R. Civ. P. 56.
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B. The Breach of Fiduciary Duties and Negligent Misrepresentation Claims Are Time-
Barred
Plaintiff’s claims for breach of fiduciary duties and negligent misrepresentation, as set forth
in Counts I and II of her Complaint, are barred by the applicable statute of limitations. Under
Florida law, claims for negligent misrepresentation and breach of fiduciary duties are governed by
a four (4) year statute of limitations. Mayor's Jewelers, Inc. v. Meyrowitz, 2012 WL 2344609, at
*4 (S.D. Fla. 2012) (negligent misrepresentation); Davis v. Monahan, 832 So. 2d 708, 709 (Fla.
2002) (breach of fiduciary duties). The “delayed discovery doctrine” does not operate to toll the
running of the statute of limitations for those claims. Davis, 832 So. 2d at 709; Reuss v. Orlando
Health, Inc., 140 F. Supp. 3d 1299, 1307 (M.D. Fla. 2015). Rather, the statute of limitations
“begins to run when the last element of the cause of action occurs.” Davis, 832 So. 2d at 709-710;
Reuss, 140 F. Supp. 3d at 1307. Although Florida statutes set forth limited circumstances under
which a statute of limitations may be tolled, none are applicable in the case at bar. See Section
95.051, Florida Statutes. Thus, the four (4) year statute of limitations for Plaintiff’s claims for
breach of fiduciary duties and negligent misrepresentation began to run once the last element of
those claims purportedly occurred.
Plaintiff’s claim for breach of fiduciary duties is predicated upon two (2) events. First, she
claims that during February and March 2010, Dr. Steven Specter, then Associate Dean for Student
Affairs, made a poor recommendation that she attempt to successfully complete her first year of
medical school, rather than take a leave of absence from school and obtain a comprehensive
neuropsychological examination. Second, she claims that in October 2010, Dr. Specter provided
her with erroneous information about the results of a neuropsychological examination that she had
undergone the prior month. (Doc. 2, ¶¶ 127, 131) Thus, the facts giving rise to Plaintiff’s claim for
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breach of fiduciary duties arose in March and October 2010.
Plaintiff’s claim for negligent misrepresentation is likewise predicated upon the allegation
that in October 2010, Dr. Specter provided her with erroneous information about the results of a
neuropsychological examination that she had undergone the prior month. (Doc. 2, ¶ 142) Thus, the
facts giving rise to Plaintiff’s claim for negligent misrepresentation arose in October 2010.
Yet, Plaintiff did not initiate this action until January 22, 2016, when she filed her
Complaint in the Circuit Court of the Thirteenth Judicial Circuit, in Hillsborough County, Florida.
(Doc. 2, pp. 1 and 55) At that point, the four (4) year statute of limitations for those claims had
long expired. As such, her claims for breach of fiduciary duties and negligent misrepresentation
are barred by the four (4) year statute of limitations.1
Plaintiff may attempt to avoid the statute of limitations bar by arguing that USF is equitably
estopped from asserting that defense. However, USF is not equitably estopped from asserting a
statute of limitations defense to Plaintiff’s negligent misrepresentation and breach of fiduciary
duties claims. First, equitable estoppel presupposes an act of wrongdoing, such as fraud and
concealment. Florida Dep't of Health & Rehab. Servs. v. S.A.P, 835 So. 2d 1091, 1097 (Fla. 2002).
Where misstatements are made without knowledge that they are false, are not made with the intent
to mislead, and are not made in bad faith, equitable estoppel does not apply. See United States v.
McCorkle, 321 F.3d 1292, 1297 (11th Cir.2003) (holding that in order to apply equitable estoppel
against the government, affirmative misconduct must be shown, and “[a]ffirmative misconduct
requires more than governmental negligence or inaction”); see also Hamilton v. Sec'y, DOC, 410
1
Plaintiff may attempt to argue that she did not discover that the advice and information provided
by Dr. Specter were erroneous until later and that the statute of limitations did not begun to run
until she had discovered the errors. However, as the Florida Supreme Court has made clear, the
“delayed discovery doctrine” does not toll the running of the statute of limitations for these claims.
Davis v. Monahan, 832 So. 2d 708, 709 (Fla. 2002) (breach of fiduciary duties).
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F. App'x 216, 220 (11th Cir. 2010). Second, equitable estoppel only applies to bar a statute of
limitations defense where the wrongdoer has induced the injured party to forbear from filing suit
during the limitations period. Rubio v. Archdiocese of Miami, Inc., 114 So. 3d 279, 281 (Fla. 3d
DCA 2013); Black Diamond Properties, Inc. v. Haines, 69 So. 3d 1090, 1093 (Fla. 5th DCA 2011)
(“Stated another way, ‘[e]quitable estoppel arises where the parties recognize the basis for suit,
but the wrongdoer prevails upon the other to forego enforcing his right until the statutory time
has lapsed.’”). Equitable estoppel does not bar a statute of limitations defense where the injured
party is induced to delay filing suit, but where the inducement to delay filing suit ends prior to
expiration of the statute of limitations. See Delco Oil, Inc. v. Pannu, 856 So.2d 1070, 1073 (Fla.
5th DCA 2003) (“Unlike the plaintiffs in Morsani who had been lulled into complacency by the
defendants' conduct until a date after the statute of limitations had run on their tortious interference
claim, here Pannu had actual notice within one month of the date that the lease was signed that the
alleged breach had occurred and thus he had [four] years and [eleven] months within which to file
a timely breach of contract complaint against Delco. Additionally, and perhaps more importantly,
there is no evidence in the record that Delco engaged in any conduct indicating an intent to lull
Pannu into a disadvantageous legal position or preventing Pannu from filing his lawsuit within the
applicable five[-]year statute of limitations.”); Olean Med. Condo. Ass'n, Inc. v. Azima, 144 So.
3d 561, 565 (Fla. 2nd DCA 2014) (holding that association was not equitably estopped from raising
statute of limitations defense to owner's action arising from associations alleged wrongful failure
to make roof repairs; majority of time within which owner could have filed suit still remained after
owner learned that association would not pay for further repairs to roof.).
Plaintiff bears the burden of presenting facts to establish equitable estoppel. However, she
cannot present any evidence that USF engaged in any fraudulent activity, or that it made any
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representations in bad faith with the intent to trick Plaintiff into foregoing suit until after expiration
of the statute of limitations. Absent such evidence, USF is not equitably estopped from asserting
a statute of limitations defense.
Plaintiff has previously argued to this Court that USF’s actions lulled her into a false sense
of security that her complaints would be rectified short of suit. (Doc. 6, pp. 2-6) Even assuming
that Plaintiff can present evidence that USF engaged in fraudulent activity, or made representations
in bad faith that delayed Plaintiff from filing suit, she cannot demonstrate that any such actions
delayed her from filing suit for the entire duration of the statute of limitations period. In her prior
submission to this Court, Plaintiff conceded that any such actions ceased by July 30, 2013, (Doc.
6, pp. 2-6), which was over one (1) year prior to expiration of the statute of limitations. Thus, even
assuming arguendo that fraudulent activity or misconduct took place -- which it did not -- Plaintiff
has conceded that it ceased well before expiration of the statute of limitations. Thus, the claims are
barred. Delco Oil, Inc. v. Pannu, 856 So.2d at 1073; Olean Med. Condo. Ass'n, Inc. v. Azima, 144
So. 3d at 565.
C. The Breach of Fiduciary Duties Claim Lacks Merit
Plaintiff’s breach of fiduciary duties claim lacks merit. As previously set forth herein,
Plaintiff’s claim for breach of fiduciary duties is predicated upon two (2) events. First, she claims
that during February and March 2010, Dr. Steven Specter, then Associate Dean for Student Affairs,
made a poor recommendation that she attempt to successfully complete her first year of medical
school, rather than take a leave of absence from school and obtain a comprehensive
neuropsychological examination.2 Second, she claims that in October 2010, Dr. Specter provided
2
Notably, Plaintiff admitted in her deposition that she did not even believe that she needed to take
a leave of absence at that time. (Pl. Depo. p. 107, l. 23 – p. 111, l. 10)
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her with erroneous information about the results of a neuropsychological examination that she had
undergone the prior month. (Doc. 2, ¶¶ 127, 131)
Under Florida law, the elements of a cause of action for a breach of a fiduciary duty are:
(1) the existence of a fiduciary duty, (2) a breach of that duty, and (3) damages that are proximately
caused by the breach. Gracey v. Eaker, 837 So. 2d 348, 353 (Fla. 2002); Columbia Bank v.
Turbeville, 143 So. 3d 964, 970 (Fla. 1st DCA 2014). As set forth below, Plaintiff’s breach of
fiduciary duties claim lacks merit.
First, Plaintiff cannot even establish the existence of a fiduciary relationship, much less
the existence of a specific fiduciary duty and breach thereof. A very recent decision by the United
States District Court for the Southern District of Florida is instructive on this point. In Morrison v.
University of Miami, 2016 WL 3129490 (S.D. Fla. 2016), a Ph.D. student reported that one of her
professors had sexually harassed her. The student believed that she was making a formal sexual
harassment complaint when she reported it to the Executive Director and Associate Director of the
Office of Equality Administration (“EA”) at the University. The student requested that the EA
block all contact between her and the professor, remove the professor from any committees judging
the student’s academic progress, and protect the student from any retaliation by the professor.
Although the EA assured Plaintiff that they would follow through with her requests, it did not take
steps to protect the student from further discrimination, harassment, or retaliation. Thereafter, the
professor retaliated against the student in multiple ways. Id. at *1-4.
In Morrison, as in the case at bar, the student brought suit against the University of Miami
for breach of fiduciary duty. The University of Miami moved to dismiss the breach of fiduciary
duty claim and argued that “a college or university does not owe a fiduciary duty to its students.”
Id. at *7. The student countered that a “’special relationship’ arose from her ‘dependency’ on the
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University to handle her complaints of discrimination and retaliation.” Id. The Court agreed with
the University, dismissed the breach of fiduciary duty claim, and reasoned as follows:
The greater weight of authority appears to support the University's position that a
fiduciary duty does not simply arise because of students' status, and this Court
agrees. See, e.g., Knelman v. Middlebury Coll., No. 5:11-cv-123, 2012 WL
4481470 (D. Vt. Sept. 28, 2012); Tunne v. Hendrick, No. 5:10CV-00181, 2012 WL
3644852 (W.D. Ky. Aug. 24, 2012); Valente v. Univ of Dayton, 438 Fed. Appx.
381, 387 (6th Cir. 2011); Bass ex rel. Bass v. Miss Porter's Sch., 738 F. Supp. 2d
307, 330 (D. Conn. 2010); Vurimindi v. Fuqua Sch. Of Bus., No. 10-234, 2010 WL
3419568, at *7 (E.D. Pa. Aug. 25, 2010); Lary v. Wesleyan Univ., No.
CV0055003943, 2009 WL 865679, at *12 (Conn. Super Ct. Mar. 10, 2009);
Manning v. Temple Univ., No. 03-4012, 2004 WL 3019230, at *10 (E.D. Pa. Dec.
30, 2014); Hendricks v. Clemson Univ., 578 S.E. 2d 711, 715-16 (S.C. 2003);
Shapiro v. Butterfield, 921 S.W.2d 649, 651 (Mo. Ct. App. 1996). Plaintiff attempts
to circumvent this line of case law by arguing that a “special relationship” arose
from her “dependency” on the University to handle her complaints of
discrimination and retaliation.
Id. Other courts have drawn the same conclusion. See Gjeka v. Delaware Cty. Cmty. Coll., 2013
WL 2257727, at *10 (E.D. Pa. 2013) (“the parties have not called to our attention any Pennsylvania
case which has ruled that a graduate school or its professors owe any fiduciary duties to graduate
students”); Eng v. Hargrave, 2012 WL 116560, at *2 (N.D. Cal. 2012) (“Yet a teacher ordinarily
does not owe his student a fiduciary duty, and a student presumably owes his teacher even less.”);
Manning v. Temple Univ., 2004 WL 3019230, at *10 (E.D. Pa. 2004), aff'd, 157 F. App'x 509 (3d
Cir. 2005) (“the parties have not called to our attention any Pennsylvania case which has ruled that
a graduate school or its professors owe any fiduciary duties to graduate students”); Knelman v.
Middlebury Coll., 570 F. App'x 66, 68–69 (2d Cir. 2014) (“While schools, colleges, and educators
assume the responsibility of educating their students, the law does not recognize the existence of
a special relationship for the purposes of a breach of fiduciary duty claim.”); Robinson v. Nevada
Sys. of Higher Educ., 2015 WL 8780244, at *3 (D. Nev. 2015) (“Robinson has not provided, and
the Court's own research has been unable to locate, a single case holding that a college professor
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or university has a fiduciary duty to their students in the ordinary academic context. To the
contrary, several courts who have addressed this issue reached the same conclusion as the
Magistrate Judge—a fiduciary relationship does not exist in this context.”).
Second, Plaintiff was not reliant upon Dr. Specter with respect to whether she should or
could take a leave of absence during her first year and therefore was not reliant upon Dr. Specter
in that regard. On this point, it is important bear in mind that Plaintiff was not a child in grade
school, but an adult in medical school. She admitted in deposition that the MCOM student
handbook was readily available to her when she spoke with Dr. Specter about taking a leave of
absence. (Pl. Depo. p. 102, l. 22 – p. 107, l. 1) As pointed out in Plaintiff’s own Complaint, the
MCOM student handbook addresses leaves of absence. (Doc. 2, ¶ 28, Doc. 2, Ex. B) Thus, Plaintiff
should have been aware of her options and was not dependent upon Dr. Specter for that purpose.
Third, Plaintiff was not reliant upon Dr. Specter with respect to the results of her
neuropsychological evaluation and therefore was not reliant upon Dr. Specter in that regard.
Indeed, on September 2, 2010, the individual who performed the neuropsychological testing on
Plaintiff, Dr. Schoenberg, went over the results of that testing with her. (Doc. 2, ¶ 37) At that time,
Dr. Schoenberg informed Plaintiff that he did not find anything. (Pl. Depo. p. 217, l. 22 – p. 220,
l. 3) On or around September 2, 2010, Plaintiff asked Dr. Schoenberg for a copy of his report, but
it was not yet ready. (Id.) Plaintiff did not bother to contact Dr. Schoenberg after that to ask for a
copy of the report. (Id.)
D. The Negligent Misrepresentation Claim Is Barred By Sovereign Immunity
Plaintiff’s negligent misrepresentation claim is barred by sovereign immunity. Indeed,
Florida courts have repeatedly held that “sovereign immunity bars tort liability on the part of the
state or its agencies for state agents who negligently misinform members of the public.” Storm v.
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Town of Ponce Inlet, 866 So. 2d 713, 715 (Fla. 5th DCA 2004); see also Friedberg v. Town of
Longboat Key, 504 So.2d 52 (Fla. 2d DCA 1987); Hillsborough County v. Morris, 730 So.2d 367
(Fla. 2d DCA 1999); City of Tarpon Springs v. Garrigan, 510 So.2d 1198 (Fla. 2d DCA 1987).
Under Florida law, “actions for negligent misrepresentation sound in fraud rather than
negligence.” Postel Indus., Inc. v. Abrams Group Constr., LLC, 2012 WL 419660 at *2 (M.D. Fla.
2012) (citing Morgan v. W.R. Grace & Co., 779 So. 2d 503, 506 (Fla. 2d DCA 2000); Burton v.
Linotype, 556 So. 2d 1126, 1129 (Fla. 3d DCA 1989) (“negligent misrepresentation is considered
tantamount to actual fraud.”) (quoting Ostreyko v. B.C. Morton Org. Co., 310 So. 2d 316, 318
(Fla. 3d DCA 1975) (same). See also Lamm v. State Street Bank & Trust, 2014 WL 1410172 at
*9 (11th Cir. 2014) (“negligent misrepresentation sounds in fraud under Florida law.”); and McGee
v. J.P. Morgan Chase Bank, NA, 520 Fed. Appx. 829, 831 (11th Cir. 2013) (“negligent
misrepresentation sounds in fraud . . . .”). Moreover, in Florida, courts have ruled that “bad faith
must always be considered a necessary element of fraud.” Parker v. State of Fla. Bd. of Regents,
724 So. 2d 163, 168 (Fla. 1st DCA 1998) (citing First Interstate Dev. Corp. v. Ablanedo, 511 So.
2d 536, 539 (Fla. 1987). Because Florida courts uniformly hold that negligent misrepresentation
claims sound in fraud rather than in negligence, and since Florida courts also hold that bad faith is
a necessary component of any fraud claim, a fortiori, Florida’s limited statutory waiver of
sovereign immunity does not extend to Plaintiff’s negligent misrepresentation claim. See Section
768.28(9), Florida Statutes (“The state or its subdivisions shall not be liable in tort for acts or
omissions of an officer, employee, or agent committed while acting outside the course and scope
of her or his employment or committed in bad faith or with malicious purpose or in a manner
exhibiting wanton and willful disregard for human rights, safety, or property.”).
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E. The Negligent Misrepresentation Claim Lacks Merit
The negligent misrepresentation claim lacks merit. In order to be actionable, a suit for
negligent misrepresentation must contain the following elements: (1) misrepresentation of a
material fact; (2) the representor must either know of the misrepresentation, must make the
representation without knowledge as to its truth or falsity, or must make the representation under
circumstances in which he ought to have known of its falsity; (3) the representor must intend that
the representation induce another to act on it; (4) injury must result to the party acting in justifiable
reliance on the misrepresentation. Atl. Nat. Bank of Florida v. Vest, 480 So. 2d 1328, 1331–32
(Fla. 1st DCA 1985).
As previously set forth herein, Plaintiff’s claim for negligent misrepresentation is based
upon the allegation that in October 2010, Dr. Specter provided her with erroneous information
about the results of a neuropsychological examination that she had undergone the prior month.
(Doc. 2, ¶ 142) However, Plaintiff cannot claim that she justifiably relied upon Dr. Specter
concerning this matter. To the contrary, on September 2, 2010, the individual who performed the
neuropsychological testing on Plaintiff went over the results of that testing with her. (Pl. Depo. p.
217, l. 22 – p. 220, l. 3)
F. The Breach of Contract and Unjust Enrichment Claims Are Barred By Sovereign
Immunity
The breach of contract and unjust enrichment claims are barred by sovereign immunity. It
is undisputed that USF is an agency of the State of Florida. See Dismuke v. University of South
Florida Board of Trustees, 2006 WL 166547 at *3 (M.D. Fla. 2006) (“In Florida, state universities
are agencies of the state and courts have specifically stated that public universities are arms of the
state. See Fla. Stat. § 1001.705(1)(a)(4) (2002)”). As a state agency, USF is entitled to sovereign
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immunity from suit for breach of contract claims unless the contract that is allegedly being
breached is an express written contract. See e.g., Pan Am Tobacco v. Department of Corrections,
471 So. 2d 4, 5-6 (Fla. 1985) (waiver of the doctrine of sovereign immunity for breach of contract
claims only applies to express, written contracts); County of Brevard v. Miorelli Engineering, Inc.,
703 So. 2d 1049, 1050 (Fla. 1997) (sovereign immunity not waived for claims of implied contract);
and City of Orlando v. West Orange Country Club, Inc., 9 So. 3d 1268, 1272-1273 (Fla. 5th DCA
2009).
USF acknowledges that there are cases in Florida holding that, in a private university
setting, rules and regulations contained in a university’s student handbook can give rise to an
implied contract claim. See e.g., McCawley v. Universidad Carlos Albizu, 461 F. Supp. 2d 1251,
1258 (S.D. Fla. 2006) (“Pursuant to Florida law, there is an implied contract between a student
and a private university that if the student fully complies with the rules and regulations of the
university, then the university will confer to him a degree.”); Sharick v. Southeastern University
of the Health Sciences, Inc., 780 So. 2d 136, 139 Fla. 3d DCA 2000) (“When a student is duly
admitted by a private university . . . there is an implied contract between the student and the
university that, if [the student complies with the terms prescribed by the university, [the student]
will obtain a degree.”) (quotes and brackets in the original); Jallali v. Nova Southeastern
University, Inc., 992 So. 2d 338, 342 (Fla. 4th DCA 2008); University of Miami v. Militana, 184
So. 2d 701, 704 (Fla. 3d DCA 1966); and John B. Stetson University v. Hunt, 102 So. 637, 640
(Fla. 1924). However, USF is entitled to sovereign immunity from a breach of contract claim that
is predicated upon an implied contract. See Miorelli Engineering, Inc., 703 So. 2d at 1050.
Although USF does not have sovereign immunity from a breach of contract claim based
upon an express, written contract, items such as student policy manuals do not constitute an
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express, written contract between a student and a university. See Carr v. Bd. of Regents of Univ.
Sys. of Ga., 249 F. App’x 146, 150–51 (11th Cir. 2007) (affirming summary judgment in favor of
university on student’s breach of contract claim based on alleged breach of student policies);
Williams v. Florida State Univ., 2014 WL 340562 (N.D. Fla. 2014) (dismissing student’s breach
of contract claim); Abbas v. Woleben, 2013 WL 5295672, *4 (E.D. Va. 2013) (finding that
university handbooks and catalogs do not form a contract when the terms are not binding on the
university); Brown v. Rector & Visitors of the Univ. of Virginia, 2008 WL 1943956, *6 (W.D.
Va. 2008) (holding that a student handbook did not constitute a binding contract based on its
disclaimers).
Plaintiff has not, and cannot, point to an express, written contract upon which her claim for
breach of contract is based. Instead, she points to the Student Handbook. (Doc. 2, Ex. B) However,
page eight of the Student Handbook specifically states:
This handbook is not a contract between the University and you. Rather[,] it is
intended to provide up-to-date information which may be helpful to you. (emphasis
in original)
Thus, the handbook by its very terms disavows the notion that it is an express contract. While a
student handbook may give rise to an implied contract in the context of a private university, it does
not create an express contract and it cannot operate to waive USF’s sovereign immunity from
Plaintiff’s claim for breach of contract.
Absent an express, written contract, USF is likewise entitled to sovereign immunity from
Plaintiff’s unjust enrichment claim. See City of Fort Lauderdale v. Israel, 178 So. 3d 444, 448 (Fla.
4th DCA 2015); Brevard Cty. v. Morehead, 181 So. 3d 1229, 1232 (Fla. 5th DCA 2015); Calderone
v. Scott, 2015 WL 1800315, *2 (M.D. Fla. 2015); Brandt v. Pub. Health Trust of Miami-Dade
Cnty., 2010 WL 4062798, *1 (S.D. Fla. 2010).
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G. The Breach of Contract and Unjust Enrichment Claims Lack Merit
The breach of contract and unjust enrichment claims lack merit. As set forth above,
Plaintiff’s breach of contract and unjust enrichment claims are based solely upon the terms of the
USF MCOM’s student handbook. (Doc. 2, ¶¶ 160-163) Even assuming arguendo that USF does
not have sovereign immunity from these claims -- which it does -- they are nonetheless without
merit. The sole provision relied upon by Plaintiff in support of these claims is found in the student
handbook and states in pertinent part as follows:
A student may be granted a refund of 100% of tuition paid if he or she withdraws

due to circumstances determined by the college to be exceptional and beyond the
control of the student. (emphasis added)
(Doc. 2, ¶ 163 and Doc. 2, Ex. B, p. 55) First, it is clear from the foregoing provision that
reimbursement is not mandatory but instead “may” be granted. Second, it is clear that USF has
discretion to determine whether it deems that the circumstances giving rise to a student’s
withdrawal from school are exceptional and beyond the control of the student. Third, the foregoing
provision only addresses instances in which a student has withdrawn from school. Plaintiff was
dismissed from USF’s MCOM in January 2012 and March 2013; she did not withdraw. (Pl. Depo.
p. 178, l. 12 –p. 179, l. 22; p. 197, l. 17 – p. 198, l. 21)
H. The Section 504 Disability Discrimination Claim Lacks Merit
The Section 504 disability discrimination claim lacks merit. First, Plaintiff is not an
“otherwise qualified individual” under the Rehabilitation Act. Less than one (1) year ago, the
Eleventh Circuit Court of Appeals had occasion to address a Section 504 discrimination claim
brought by a medical student who had been dismissed from the osteopathic medicine program at
Nova University. See J.A.M. v. Nova Se. Univ., Inc., 646 F. App'x 921 (11th Cir. 2016). In that
case, the student claimed that the medical school violated Section 504 and discriminated against
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him on the basis of his disability -- major depressive disorder -- when it dismissed him from the
program. The Eleventh Circuit set forth the applicable law as follows:
The Rehabilitation Act provides the following protection for persons facing a
disability: No otherwise qualified individual with a disability in the United States
... shall, solely by reason of her or his disability, be excluded from the participation
in, be denied the benefits of, or be subjected to discrimination under any program
or activity receiving Federal financial assistance. . . Discrimination claims under
the RA are governed by the same standards used in ADA cases. . . In order to
establish a prima facie case of discrimination under the RA or ADA, the plaintiff
must demonstrate that he (1) is disabled, (2) is a qualified individual, and (3) was
subjected to unlawful discrimination because of his disability. . . An “otherwise
qualified” person is one who is able to meet all of a program's requirements in spite
of his handicap. . . In the context of postsecondary education, an “otherwise
qualified” individual must be able to meet the academic and technical standards
requisite to admission or participation in the education program or activity, in spite
of his handicap. . . In certain circumstances, an educational institution's refusal to
accommodate the needs of a disabled person amounts to discrimination against that
person because of his disability. . . However, “[the RA] imposes no requirement
upon an educational institution to lower or to effect substantial modifications of
standards to accommodate a handicapped person.” . . . Where the purpose of an
educational program is to train persons to serve their profession in all customary
ways, an institution's refusal to make “major adjustments” to its program in order
to accommodate the disabled does not amount to disability-related discrimination.
Id. at 926–27. The Eleventh Circuit concluded that the student’s claims failed, because he did not
allege facts demonstrating that he was dismissed from the program “solely” because of his
disability. More importantly, the Eleventh Circuit also concluded that the student was not an
“otherwise qualified individual” under the Rehabilitation Act. The Court reasoned that the student
was unable to complete a single full semester of medical school without suffering a relapse of his
major depressive disorder during the semester and had repeatedly relapsed and failed to meet the
medical school’s academic requirements. Id.
In the case at bar, as in J.A.M., Plaintiff is not an “otherwise qualified individual” for
purposes of Section 504. She failed the first year of the Doctor of Medicine Program despite having
taken Adderall for her ADHD during that year. She also failed the second year of the Program.
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Upon repeating the second year of the Program, she continued to have academic difficulties even
though she was provided accommodations in the form of additional time to complete
examinations, an opportunity to take examinations in a quiet room by herself, and extensions of
time to take examinations, including even a three (3) month extensions of time. In short, it took
her four (4) years to complete two (2) years of the Program, and there did not appear to be any
reason to believe that her performance would improve over time.
Second, USF’s ultimate decision to terminate Plaintiff from the Program was for
legitimate, nondiscriminatory reasons: poor academic performance, as evidenced by the fact that
she failed -- not just two (2) courses, but two (2) entire years. USF’s determination that Plaintiff
did not satisfy its academic standards for the Program is entitled to deference. Wood v. President
& Trustees of Spring Hill Coll. in City of Mobile, 978 F.2d 1214, 1222–23 (11th Cir. 1992).
Moreover, USF was under no obligation to lower its academic standards in order to accommodate
Plaintiff. Id.; see also Southeastern Community College v. Davis, 442 U.S. 397, 413, 99 S.Ct.
2361, 2370 (1979) (educational institutions need not lower or substantially modify their standards
to accommodate a handicapped person). Plaintiff cannot demonstrate that her academic problems
were a pretext to mask unlawful discrimination, and she certainly cannot demonstrate that
discriminatory animus was the sole reason for her termination from the Program.
Third, Plaintiff cannot demonstrate that she was subject to disparate treatment on the basis
of her disability. To the contrary, Plaintiff admitted in her deposition that during the 2009-2010
and 2011-2012 academic years, no one held her to a different standard than other students. (Pl.
Depo. p. 160, l. 5 – p. 161, l. 7) She also admitted that, when she repeated her first and second
years in the program, she was held to the same standard as other repeating students. (Pl. Depo. p.
161, l. 8 – p. 163, l. 9)
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I. The Section 504 Retaliation Claim Lacks Merit
The Section 504 retaliation claim is meritless. To establish a prima facie case of retaliation
under the Rehabilitation Act, a plaintiff must show: “(1) he was engaged in statutorily protected
expression, (2) he suffered a materially adverse action, and (3) there was some causal relationship
between the two events.” Simpson v. State of Ala. Dept. of Human Res., 501 F. App'x. 951, 954
(11th Cir.2012); Kendall v. Shinseki, 2014 WL 6469433, at *4 (M.D. Fla. Nov. 16, 2014).
According to the Eleventh Circuit Court of Appeals:
The Rehabilitation Act incorporates the anti-retaliation provision from § 12203(a)

of the Americans with Disabilities Act (“ADA”) . . . Under the ADA's anti-
retaliation provision, “[n]o person shall discriminate against an individual because
such individual has opposed any act or practice made unlawful by this chapter.” . .
. This anti-retaliation provision is similar to Title VII's prohibition on retaliation. .
. . Accordingly, we assess retaliation claims pursuant to the Rehabilitation Act
under the framework we use in assessing Title VII retaliation claims.
Burgos-Stefanelli v. Sec'y, U.S. Dep't of Homeland Sec., 410 F. App'x 243, 245 (11th Cir. 2011)
(internal citations omitted); see also Shannon v. Postmaster Gen. of U.S. Postal Serv., 335 F. App'x
21, 26 (11th Cir. 2009).
In the case at bar, Plaintiff’s claim for retaliation fails because she did not engage in
protected activity under the Rehabilitation Act prior to her dismissal from the Doctor of Medicine
Program. Plaintiff admitted in her deposition that she did not make any report or otherwise make
any internal complaint of discrimination while she was a student at USF’s MCOM. Although
Plaintiff realized that there was a complaint procedure she could follow involving USF’s Office of
Equal Opportunity, she did not do so because at the time she did not believe that she was being
discriminated against. (Pl. Depo. p, 215, l. 18 – p. 217, l. 3) Plaintiff admitted that she never made
any complaints of discrimination while she was a student at USF’s MCOM, whether to USF or to
any other governmental agency. Although she later made complaints to the United States
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Department of Education, that was after she had been dismissed from the Doctor of Medicine
Program. (Id. at p. 204, l. 23 – p. 205, l. 12)
Plaintiff also cannot establish that her dismissal from the Doctor of Medicine Program was
motivated by, or resulted from, her complaint to the United States Department of Education. To
the contrary, as set forth above, Plaintiff admitted that she complained to the United States
Department of Education after she had been dismissed from the Doctor of Medicine Program.
Plaintiff’s claim of unlawful retaliation is leveled solely against Dr. Frazier Stevenson, who
was USF’s Associate Dean of Undergraduate Medical Education. In her deposition, Plaintiff
testified that on March 8, 2013, she informed Dr. Stevenson that she did not want to take the
Comprehensive Basic Science Exam (“CBSE”) without the accommodations that had been
approved by USF’s MCOM. Because she was dismissed from the Doctor of Medicine Program
several days later, she surmises that her dismissal was in retaliation for asking for accommodations
while taking the CBSE. (Pl. Depo. at p. 205, l. 13 – p. 208, l. 25) Plaintiff testified that she is not
aware of anyone else having retaliated against her. (Pl. Depo. at p. 213, l. 1 – p. 215, l. 17)
Plaintiff cannot demonstrate that Dr. Stevenson orchestrated her dismissal from the Doctor
of Medicine Program. To the contrary, as Plaintiff acknowledged in her deposition, the decision
to dismiss her from the Program was made by the Academic Performance Review Committee
(“APRC”). (Pl. Depo. at p. 197, l. 17 – p. 198, l. 21; p. 211, l. 21 – p. 212, l. 11) Plaintiff further
admitted that she does not know who served on the APRC and made the decision to dismiss her
from the Program. (Pl. Depo. at p. 211, l. 12-20) In fact, Dr. Stevenson did not serve on the APRC
during the 2012-2013 academic year, so he did not participate in its decision to dismiss Plaintiff
from the Program. See USF’s Response to Plaintiff’s Interrogatory No. 12. Moreover, there is no
evidence to suggest that he forced or manipulated the APRC to decide to dismiss Plaintiff. As
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previously set forth herein, Plaintiff’s dismissal was for a legitimate, nondiscriminatory and
nonretaliatory reason: her poor academic record in the Program.
J. Plaintiff’s Section 504 Discrimination and Retaliation Claims Are Partially Barred
Plaintiff’s Section 504 discrimination and retaliation claims are time barred by the statute
of limitations insofar as those claims arose prior to January 22, 2012, which is four (4) years before
Plaintiff filed her Complaint. In Florida, the statute of limitations for claims under Section 504 of
the Rehabilitation Act is four (4) years. Ealy v. GEO Grp., Inc., 2016 WL 3553141, at *1 (11th
Cir. 2016). Thus, applying the four (4) year statute of limitations to Plaintiff’s Section 504
discrimination and retaliation claims, those claims are time barred insofar as they rest upon any
discriminatory or retaliatory act that purportedly took place prior to January 22, 2012.
IV. Conclusion
For the foregoing reasons, USF respectfully requests that this Court grant its Motion for
Summary Judgment with respect to all of Plaintiff’s claims herein.
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DATED this 4th day of February, 2017.
Respectfully submitted,
CONSTANGY, BROOKS,
SMITH & PROPHETE, LLP
200 W. Forsyth St.
Ste. 1700
Jacksonville, Florida 32202
Telephone: (904) 356-8900
Facsimile: (904) 356-8200
By: /s/ J. Ray Poole

John F. Dickinson
Florida Bar No.: 198651
jdickinson@constangy.com
J. Ray Poole
Florida Bar No.: 983470
rpoole@constangy.com
Attorneys for Defendant
I HEREBY CERTIFY that on the 4th day of February, 2017 the undersigned electronically
filed the foregoing which will be electronically served via the CM/ECF to all counsel of record
herein.
/s/ J. Ray Poole

Attorney
25
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TAMPA DIVISION
Plaintiff,

BOARD OF TRUSTEES,
Defendant.
______________________________________/
APPLICATION FOR LEAVE TO WITHDRAW AS COUNSEL
Pursuant to Local Rule 2.03 of the Local Rules for the Federal District
Court for the Middle District of Florida, Stanley R. Apps (“Apps”), counsel for
the Plaintiff, Nausheen Zainulabeddin, hereby files on his own behalf this
APPLICATION FOR LEAVE TO WITHDRAW AS COUNSEL, and further
states as follows:
1. Apps humbly asks this honorable Court for leave to withdraw as
Plaintiff’s counsel in the above-captioned matter, for the following reasons:
a. The Plaintiff, Nausheen Zainulabeddin (“Zainulabeddin”), has
elected to proceed pro se in proper person and to represent
herself for all purposes in this civil action; and
b. Zainulabeddin has already filed multiple documents on a pro se
basis in this civil action, including a Notice of Appeal, Motion
! 1!
A-1554
for Leave to Proceed In Forma Pauperis, and Affidavit of
Indigency.
2. Because Zainulabeddin has elected to proceed pro se in proper person,
Apps believes he lacks authority to continue to represent Zainulabeddin in this
civil action, pursuant to Local Rule 2.03(d). Apps further believes that the
circumstances require him to ask leave to withdraw as Plaintiff’s Counsel.
3. Apps has notified Zainulabeddin and Defendant’s counsel of his
intention to seek leave to withdraw.
4. Apps states that his withdrawal from the case at the present time will
not be the cause of any continuance or delay.
WHEREFORE, Apps humbly prays the Court to grant him written leave
to withdraw from representing the Plaintiff, Nausheen Zainulabeddin, in this
civil action, pursuant to Local Rule 2.03(b).
! 2!
A-1555
Respectfully submitted on this 27th day of April, 2017.
/s/ Stanley R. Apps

FL Bar. No. 0108868
San Mateo, CA 94403
(310) 709-3966
stan.apps@gmail.com
I hereby certify that on April 27, 2017, I electronically filed the

I further certify that notice by other means has been provided to

Nausheen Zainulabeddin, Plaintiff proceeding pro se, at the following
addresses:
4409 W. Varn Avenue

Tampa, FL 33616
(mail); and
nausheenkhawaja@gmail.com
(electronic)
/s/ Stanley R. Apps
! 3!
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U.S. COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
vs. USF BOT Appeal No.
17-12134, 17-11888, 17-12376
FRAP 25(b) through (d) (see reverse) requires that at or before the time of filing a paper,
a party must serve a copy on the other parties to the appeal or review. In addition, the
person who made service must certify that the other parties have been served, indicating
the date and manner of service, the names of the persons served, and their addresses.
You may use this form to fulfill this requirement. Please type or print legibly.
I hereby certify that on (date)

September 5, 2017 ,
a true and correct copy of the foregoing (title of filing) APPENDICES I-XII ,
with first class postage prepaid, has been (check one)
G deposited in the U.S. Mail G deposited in the prison’s

internal mailing system
and properly addressed to the persons whose names and addresses are listed below:
filed with the clerk of the USCA 11th circuit

and served a paper copy to attorneys on record
Ms. Lori Mans and Mr. John Dickinson
200 West Forsyth Street
Suite 1700 Jacksonville, FL 32202-4317
Your Name (please print) Your Signature
Please complete and attach this form to the original document and to any copies you are
filing with the court, and to all copies you are serving on other parties to the appeal.
ix

Appendix Volume 8

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Appendix Volume 8

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IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

APPEAL NO. 17-11888

UNIVERSITY OF SOUTH FLORIDA, BOARD OF TRUSTEES

APPEAL FROM THE UNITED STATES DISTRICT COURT

VOL. Tab Date Title Page

I 2-2 1/22/16 Dkt. 2 Exhibit B 65-167

XI 64-1 05/17/17 Dkt. 64 Exhibit A to E 2199

Zainulabeddin v. University of South Florida Board of Trustees

Florida Middle District Court

Docket Parties (2) Related Cases (4) News

John Sikes Gibbs

J. Ray Poole, Jr.

0:17-prici-11888 - Nausheen Zainulabeddin v. University of South Florida Bo 04/27/2017

0:17-prici-12134 - Nausheen Zainulabeddin v. University of South Florida Bo 05/11/2017

0:17-prici-12376 - Nausheen Zainulabeddin v. University of South Florida Bo 05/24/2017

0:17-cvpri-02083 - Zainulabeddin v. USF Board of Trustees 05/25/2017

Navigation Edit Alert

Docket last updated: 09/01/2017 11:59 PM EDT Update Now

Friday, July 28, 2017

82 appeal USCA Mandate Fri 12:08 PM

81 appeal USCA order Fri 12:07 PM

Tuesday, June 20, 2017

80 3 pgs appeal USCA order Tue 11:57 AM

Thursday, June 08, 2017

Att: 1 Mailing Envelope

Monday, June 05, 2017

78 4 pgs notice Notice (Other) Tue 3:49 PM

77 2 pgs order Order on motion to supplement Mon 9:12 AM

Wednesday, May 31, 2017

Tuesday, May 30, 2017

75 5 pgs respm Response in Opposition to Motion Tue 5:01 PM

appeal Transmittal to USCA Tue 10:21 AM

Wednesday, May 24, 2017

appeal Transmittal to USCA Wed 2:47 PM

Tuesday, May 23, 2017

74 4 pgs notice Notice (Other) Wed 3:23 PM

DIRECTIONS TO THE CLERK by Nausheen Zainulabeddin. (BSN)

Monday, May 22, 2017

71 2 pgs appeal Notice of appeal Wed 3:09 PM

70 2 pgs appeal Notice of appeal Wed 3:07 PM

Att: 1 2 pgs Petition for Review

69 16 pgs notice Notice (Other) Wed 3:03 PM

Directions to the Clerk, by Nausheen Zainulabeddin (KMM)

67 1 pgs misc Bill of costs Mon 8:30 AM

Friday, May 19, 2017

Wednesday, May 17, 2017

64 14 pgs respm Response in Opposition to Motion Thu 10:03 AM

Att: 1 19 pgs Exhibit A-E,

Att: 2 99 pgs Exhibit F,

Att: 3 45 pgs Exhibit G,

Att: 4 55 pgs Exhibit H,

Att: 6 3 pgs Exhibit,

Tuesday, May 16, 2017

63 19 pgs motion Supplement Tue 3:55 PM

Att: 1 38 pgs Exhibit A,

Att: 3 102 pgs Exhibit 2,

Att: 5 161 pgs Exhibit 4,

Att: 6 126 pgs Exhibit 5,

Att: 8 100 pgs Exhibit 7,

Att: 10 141 pgs Exhibit 9,

Att: 11 91 pgs Exhibit 10,

Att: 13 139 pgs Exhibit 12

Wednesday, May 10, 2017