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Oirya v. Auburn University

United States District Court, M.D. Alabama, Eastern Division

October 2, 2019

JOHN OIRYA, Plaintiff,



         Plaintiff John Oirya (“Plaintiff” or “Oirya”) has brought claims against Auburn University (“Auburn”) and George Flowers (“Flowers”) (together, “Defendants”) in connection with his admission and subsequent disenrollment at Auburn Graduate School's College of Business. Defendants have filed a Motion for Summary Judgment (Doc. 79), and Plaintiff has filed a response (Doc. 99). Defendants' motion is fully briefed and is ripe for consideration. For the reasons below, the Court finds that the Defendants' Motion for Summary Judgement is due to be GRANTED.


         Under Rule 56(a) of the Federal Rules of Civil Procedure, a reviewing court shall grant a motion for “summary judgment if the movant shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). Only disputes about material facts will preclude the granting of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “An issue of fact is ‘genuine' if the record as a whole could lead a reasonable trier of fact to find for the nonmoving party. An issue is ‘material' if it might affect the outcome of the case under the governing law.” Redwing Vehicleriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir. 1996) (quoting Anderson, 477 U.S. at 248).

         Under Rule 56, summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party asking for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrates the absence of a genuine issue of material fact.” Id. at 323. The movant can meet this burden by presenting evidence showing there is no dispute of material fact, or by showing that the nonmoving party has failed to present evidence in support of some element of his case on which he bears the ultimate burden of proof. Id. at 322-23.

         Once the movant has satisfied this burden, the nonmoving party must “go beyond the pleadings and by his own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,' designate ‘specific facts showing that there is a genuine issue for trial.'” Id. at 324. In doing so, and to avoid summary judgment, the nonmovant “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The parties must support their assertions “that a fact cannot be or is genuinely disputed” by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations[], admissions, interrogatory answers, or other materials” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(A) & (B).

         If the nonmovant “fails to properly address another party's assertion of fact” as required by Rule 56(c), then the court may “consider the fact undisputed for purposes of the motion” and “grant summary judgment if the motion and supporting materials - including the facts considered undisputed - show that the movant is entitled to it.” Fed.R.Civ.P. 56(e)(2) & (3).

         In determining whether a genuine issue for trial exists, the court must view all the evidence in the light most favorable to the nonmovant. McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003). Likewise, the reviewing court must draw all justifiable inferences from the evidence in the nonmoving party's favor. Anderson, 477 U.S. at 255. However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam). Furthermore, “[a] mere ‘scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990); see also Anderson, 477 U.S. at 249-50 (“If the evidence [on which the nonmoving party relies] is merely colorable, or is not significantly probative, summary judgment may be granted.”) (internal citations omitted).


         Before setting out the undisputed facts in this case, the Court finds is necessary to set forth the provisions governing factual assertions and evidentiary submissions for summary judgment motions. Rule 56(c)(1)(A) of the Federal Rules of Civil Procedure requires that a “party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of material in the record….” Additionally, this Court's Uniform Scheduling Order (Doc. 22), contains the following requirements with respect to dispositive motions:

• In all briefs filed by any party relating to the motion, the discussion of the evidence in the brief must be accompanied by a specific reference, by page and line, to where the evidence can be found in a supporting deposition or document. Failure to make such specific reference will result in the evidence not being considered by the court. Doc. 22 § 2.
• All briefs in support of and in opposition to the motion shall be accompanied by an appendix which includes the evidence upon which the parties rely. Id. at § 2, ¶ 6.
• Any discussion of evidence in a brief must include the specific reference, by page and line, to where the evidence can be found in the supporting evidentiary appendix or in a court pleading or other filing (complaint answer, brief, etc.). Id. at § 2, ¶ 7.
• Failure to comply strictly with these provisions could result in dismissal of the motion or appropriate sanctions. Id. at § 2, ¶ 9.

         Plaintiff filed a Response in Opposition to Defendants' Motion for Summary Judgment (Doc. 99) along with a Declaration of the Plaintiff (Doc. 99-1) and an “Appendix” listing Exhibits A through F on the cover. Only Exhibits A and B (copies of two emails from Chris Anthony to George Crandall) are actually attached to the Appendix. Exhibit C, identified as a Maran White Letter to Plaintiff's Counsel, is not attached, but a portion of the letter is incorporated into Plaintiff's brief. Exhibit D is identified as “OIRYA-AMDC - Documents Produced in the Middle District, ” Exhibit E is identified as “AUBURN [Bates No.], ” and Exhibit F is identified as “BYU Confidential Documents.” None of these documents were filed into the record.

         Not only did Plaintiff fail to submit many of the evidentiary materials on which he relies, but his brief fails to conform to the Court's Scheduling Order regarding proper citations to evidentiary materials. First, some factual allegations have no citation at all. Second, when Plaintiff does include citations, he mostly cites to the page only with no line cite. Third, some of the citations are completely improper, as in one example when he attempts to support a factual allegation by citing to a discovery request (not even a response) that he propounded to Defendants.[1] See Doc. 99 at 12. Fourth, the vast majority of Plaintiff's evidentiary citations in his brief refer to the “OIRYA-AMDC” documents that have not been submitted to the Court, making it impossible for the Court to determine whether the cited materials support his factual allegations. Plaintiff occasionally cites to documents produced to him with the Bates-label prefixes “AUBURN” or “BYU Confidential Information.” Again, however, Plaintiff submitted none of these documents with his evidentiary materials. Some of the cited pages may have been produced by Defendants in support of their motion; some may not have. However, the Court is unwilling to comb through more than 1000 pages of Defendants' evidentiary materials to find, for example, AUBURN 00034. See Pl.'s Br. at 19. As Plaintiff was advised in the Uniform Scheduling Order, the failure to submit evidentiary materials and make specific page-line references will result in the evidence not being considered. Doc. 22 § 2.

         When a party files an affidavit in support or opposition to summary judgment, Rule 56(e) requires that the affidavit “be made on personal knowledge, set out facts that would be admissible into evidence, and show that the affiant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(e). According to the Federal Rules of Evidence, personal knowledge can be established by showing that the witness was in a physical position to see, hear, or otherwise perceive the matters to which the testimony relates. See Fed. R. Evid. 602. In this case, Plaintiff's declaration is replete allegations not based on personal knowledge, along with arguments and conclusory statements with no supporting factual basis. See generally Doc. 99-1.

         As a result of the scant evidentiary submissions and the improper assertions in Plaintiff's declaration, the Court has considered only a limited number of factual assertions in Plaintiff's brief and declaration. See Pye v. Fifth Generation, Inc., No. 14CV493, 2016 WL 9046788, at *2 (N.D. Fla. Sept. 27, 2016) (stating that a district court need not consider materials that are not properly cited and may decline to consider evidence supporting the assertions for which t plaintiffs provided no citations to the record).


         (A) Undisputed Facts Agreed-Upon by the Parties

         The Scheduling Order in this case directed the parties to confer and agree upon the facts that are uncontested, and it further advised that the Court would rely upon the parties' representations in its determination of whether there is a genuine issue of material fact. Doc. 22, ¶ 5. The parties were able to agree on the following undisputed facts:

         1. Oirya applied and was admitted to Auburn University's Graduate School (“Graduate School”) in the Department of Management Ph.D. program to begin Fall 2012.

         2. Oirya declined the offer to enroll in Auburn for Fall 2012.

         3. Oirya declined Auburn's 2012 offer of admission because he planned to spend time on grant work on-site in Kenya, Africa, during the 2012-2013 academic year.

         4. Oirya remained enrolled at BYU from Spring Term 2011 through March 20, 2013. Oirya has not returned to Kenya since coming to the United States in 1997.

         5. On March 1, 2013, Oirya was suspended from BYU.

         6. In Spring 2013, Oirya applied and was admitted to Auburn again. He enrolled and began coursework in Spring 2014 and began teaching as a graduate teaching assistant.

         (B) Additional Findings of Undisputed Facts

         After a thorough review of the parties' briefs and properly cited and submitted evidentiary materials, the Court finds that the following material facts are undisputed:

         (1) Oirya's Applications to Auburn

         When Oirya applied for admission to Auburn's Graduate School in 2012, the application showed that he was enrolled at BYU and expected to receive an MA Graduate Certificate in TESOL[2] in April 2012. Doc. 81-1 at 135. When he applied again on January 20, 2013, under the heading “Academic Record” on the application, which instructed an applicant to “[l]ist in order (most recent first) all colleges and university you have attended, ” Plaintiff indicated that his most recent college or university attended was BYU in 2008. Doc. 81-1 at 161, 167. Although Oirya was enrolled at BYU when he completed the application, he did not list any colleges or universities that he attended after 2008. Doc. 81-1 at 161. Oirya signed his application to the Department of Management on January 20, 2013, “certify[ing] that the information [he] provided [was] complete and accurate.” Doc. 81-1 at 167. Oirya also completed application materials directly to the Graduate School in connection with his 2013 application, and he reported that his attendance at BYU had ended in December 2008. Doc. 81-5 at 59. This online application contained the following certification: “I understand that withholding information requested on this application, including attendance at any other institution, or giving false information may make me ineligible for admission to the university or subject to dismissal.” Doc. 82-7 at 4.

         (2) Oirya's Explusion from BYU

         On or about January 8, 2013, before he applied to Auburn, Oirya received notice from BYU of allegations of inappropriate behavior toward female students. Doc. 82-2 at 129. On or about January 10, 2013, he received notice from BYU of allegations of falsely claiming that he was receiving funding from the Ministry of Higher Education in Kenya; knowingly making false claims as to the amount he was receiving from the Kenyan Ministry of Higher Education; submitting forged documents to verify the funding; knowingly and fraudulently attending BYU while not securing required funding; misrepresenting the source of the funding; and never providing evidence of receipt of funds he claimed to have received. Id. at 124. On or about January 11, 2013, Oirya received notice from BYU that he was no longer eligible for employment of any kind at BYU due to numerous complaints, including “inappropriate comments and behaviors” toward female staff, dating back to 2005. Id. at 132. On January 24, 2013, BYU sent notice to Oirya that he was being accused of Title IX violations (putting his hand down his unzipped pants during class in the presence of at least one other classmate and calling a meeting to inquire about who made the allegation). Id. at 133. On January 25, 2013, Oirya received two forms entitled “Allegation Information and Invitation to Respond” from BYU. Id. at 134- 35. The first one alleged that he had plagiarized an assignment in Spring 2011 and had been denied admission to the Linguistics Masters in Fall 2012 based partly on a failure to attribute quotations to correct authors in his proposal, and it also mentioned the incident of placing his hand into his open pants and engaging in retaliatory behavior by inquiring as to who made the statement. Id. at 134. The second form contained the same allegations listed in the January 20, 2013, notice from BYU concerning funding. Id. at 135.

         On or around March 1, 2013, BYU sent a letter to Oirya stating as follows:

After interviewing you, completing a thorough review of available information and considering the recommendation made by the Honor Code Committee, I am suspending you from Brigham Young University because of violations of the Honor Code. These violations include submitting false documents, plagiarism and sexual harassment. This action makes you ineligible to attend daytime or evening classes, to register for other courses, to work for the university, or to reside in BYU-contracted housing. You may not enroll in or be enrolled in any BYU classes or course that could apply to graduation, including but not limited to Independent Study courses, until you are returned to good Honor Code standing. A hold has been placed on your record which will prevent you from being considered for admission to any church Educational System school until you are returned to good Honor Code standing.

Doc. 81-1 at 124. Approximately three weeks later, however, BYU determined that Oirya would be permanently dismissed and sent him a letter dated March 20, 2013, which stated in part as follows:

After carefully reviewing your most recent violations of the Honor Code, i.e., inappropriate gender-based behavior and admission fraud, and in light of your past history of misconduct at the university I have determined to dismiss you from Brigham Young University. This decision is effective immediately and means you are permanently dismissed from the university and will not be allowed to reapply for admission to the university in the future. This action requires you to sever all formal connections with the university, including course work, university employment, and living in BYU-contracted housing, effective immediately…. A notation of this action will be made on your transcript.

Doc. 82-1 at 122.

         (3) Oirya's 2013 Admission to Auburn

         In April 2013, unaware that Oirya had been expelled from BYU in March 2013, Auburn admitted him to the Graduate School. Doc. 81-3 at 80. Oirya deferred his Fall 2013 enrollment to Spring 2014 because there was an issue with his immigration status. Doc. 82-4 at 19-20. Oirya enrolled without submitting a complete final transcript from BYU, but this mistake was not caught by the Graduate School before he started classes. Doc. 81-5 at 61-63; Doc. 82-4 at 21.

         (4) Auburn's Graduate Student Policies

         Academic Good Standing:

         Each Auburn University Bulletin published in June 2011, June 2012, and May 2013 has a section entitled “The Graduate School.” Doc. 81-9 at 104, 107, and 109. Under “Admissions Requirements” it states, “The applicant must be in academic good standing at the institution last attended.” Id. at 104, 107, and 111. During the tenure of Dean Flowers, who has been the head of the Graduate School since 2008, the Graduate School policy on “academic good standing” has consistently been interpreted to require an applicant to be eligible to re-enter the institution last attended. Doc. 82-7 at 1, 14-15. Whether stated as “academic good standing” or “good standing, ” Dean Flowers has never interpreted the term “academic good standing” to be limited to a grade-point-average requirement only. Id. at 15. Regardless of the basis for ineligibility at the prior institution-whether academic status, conduct-based, a combination of the two, or something different-ineligibility to return to the student's prior institution makes one ineligible for admission to Auburn's Graduate School. Id. at 13.


         Under “The Graduate School” subheading of “Application for Admission, ” the policy states that an applicant must submit “[o]ne official transcript of all undergraduate- and graduate-level study from each school previously attended.” Doc. 81-9 at 104, 107, and 111. It further provides that an applicant “must submit transcripts of all completed study, as well as incomplete transcripts from the current institution” and that “[a]pplications and all relevant material must be received by the Graduate School at least forty-five days before the first day of class of the semester in which the student wishes to begin graduate study….” Id. The Graduate School requires completed official transcripts from every college an applicant has attended up through the time of the student's enrollment at Auburn. Doc. 82-7 at 2-3, 13-14.

         Transfer ...

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