David Der Sarkissian v. West Virginia University Board of Governors, d/b/a West Virginia University School…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1743
DAVID DER SARKISSIAN,
Plaintiff - Appellant,
v.
WEST VIRGINIA UNIVERSITY BOARD OF GOVERNORS, d/b/a West
Virginia University School of Medicine; SHELLEY NUSS,
Program Director, Internal Medicine,
Defendants - Appellees.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Frederick P.
Stamp, Jr., Senior District Judge. (1:05-cv-00144-FPS-JSK)
Argued: May 13, 2009 Decided: May 28, 2009
Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Matthew Henry Simmons, SIMMONS & ASSOCIATES, CHARTERED,
Bethesda, Maryland, for Appellant. James Robert Russell,
SHUMAN, MCCUSKEY & SLICER, PLLC, Morgantown, West Virginia, for
Appellees. ON BRIEF: Seann P. Malloy, SIMMONS & ASSOCIATES,
CHARTERED, Bethesda, Maryland; Travis Fitzwater, LAW OFFICE OF
TRAVIS FITZWATER, Morgantown, West Virginia, for Appellant.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Dr. David Der Sarkissian appeals from a judgment entered
following a bench trial on claims arising out of his termination
from a medical residence program at West Virginia University
School of Medicine (WVU). Because Dr. Der Sarkissian has failed
to demonstrate that the district court erred in finding that
neither WVU nor Dr. Michelle Nuss, the Internal Medicine
Residency Director at WVU, violated his constitutional or
statutory rights, we affirm.
I.
Dr. Der Sarkissian began his residency in internal medicine
at WVU in the summer of 2004. By the middle of October, three
women had reported to Dr. Nuss that Dr. Der Sarkissian acted
inappropriately toward them.
In written statements, Dr. Angela MacKay, the chief
resident for the WVU residency program, Dr. Susanne Choby, a
senior resident, and Melany Atkins, a medical student at WVU at
the time, reported that, among other things, Dr. Der Sarkissian
paged them regarding non-work-related matters and gave them
personal notes. Melany Atkins also reported that Dr. Der
Sarkissian made inappropriate comments about her dress, hair,
make-up, and smile and wrote her a personal letter that he hoped
to discuss after she told him she had no interest in any such
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discussions. Another resident reported to Dr. Nuss that Dr. Der
Sarkissian stared at Melany Atkins and intentionally brushed and
rubbed up against her during rounds, creating an uncomfortable
situation for other students.
In response to these reports and after consulting with two
of her supervisors, on October 19, 2004, Dr. Nuss met with Dr.
Der Sarkissian. She informed him that she had credible evidence
that he had sexually harassed several women in the residency
program and administratively suspended him. Dr. Nuss then
presented the reports of the three women to the Social Justice
Office (“SJO”) at WVU, which handles sexual harassment
complaints.
Two days later, on October 21, Dr. Nuss and Dr. Ann Chester
from the SJO met with Dr. Der Sarkissian and provided him copies
of the reports of the three women. Although Dr. Der Sarkissian
testified otherwise, the district court found that Drs. Nuss and
Chester informed him of his right to respond to the allegations
in writing, but that Dr. Der Sarkissian chose to respond orally
at the meeting. In the course of doing so, Dr. Der Sarkissian
admitted to engaging in much of the behavior described in the
reports.
After the conclusion of that meeting, Dr. Nuss ended Dr.
Der Sarkissian’s administrative suspension, but Dr. Chester
issued a report finding Dr. Der Sarkissian in violation of WVU’s
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sexual harassment policy. Shortly thereafter, Dr. Nuss informed
Dr. Der Sarkissian that he would be on probation for four months
because of his unprofessional behavior. During that four-month
period he was to receive counseling and not repeat the behavior
that led to the probation.
In early February, 2005, as the result of a finding by the
clinical competence committee that Dr. Der Sarkissian had poorly
performed in his clinical rotations, Dr. Nuss placed Dr. Der
Sarkissian on probation for the remainder of the academic year.
(This performance probation was unrelated to the previous four-
month probation.) When Dr. Der Sarkissian asked Dr. Nuss for an
opportunity to improve his performance because he had just begun
treatment for his recently diagnosed attention deficit
hyperactivity disorder (ADHD) and anxiety disorder, Dr. Nuss
responded that WVU would renew his contract at the end of the
year if he met certain performance criteria.
On February 14, while Dr. Der Sarkissian was still on the
original four-month probation, Dr. Nuss learned that Dr. Der
Sarkissian had delivered a diamond necklace to Melany Atkins
through a third party. Two days later Drs. Nuss and Chester met
with Dr. Der Sarkissian; at that time he admitted to delivering
the necklace. Dr. Chester informed Dr. Der Sarkissian that he
had violated the terms of his four-month probation. The next
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day Dr. Nuss informed Dr. Der Sarkissian in writing that WVU had
terminated his appointment due to that violation.
After pursuing a grievance with WVU, Dr. Der Sarkissian
filed this action in federal court against WVU and Dr. Nuss. In
a thorough written opinion, the district court granted judgment
on partial findings, pursuant to Fed. R. Civ. P. 52(c), to WVU
and Dr. Nuss with respect to certain claims. After a five-day
bench trial, the court, in another thorough written opinion,
granted judgment to the university and Dr. Nuss on all remaining
claims.
II.
On appeal, Dr. Der Sarkissian contests the adverse judgment
only with respect to his claims that (1) Dr. Nuss denied him his
constitutional due process rights when she terminated him from
the residency program without adequate procedure, (2) WVU and
Dr. Nuss discriminated against him because of his ADHD diagnosis
in violation of the Americans with Disabilities Act of 1990
(ADA), 42 U.S.C. § 12132 (2006), and (3) WVU and Dr. Nuss
retaliated against him because of his request for an
accommodation in violation of the ADA, id. § 12203.
We have carefully considered the record, briefs, applicable
law, and oral arguments of the parties and are persuaded that
the district court did not err in granting judgment to WVU and
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Dr. Nuss. Record evidence adequately supports the district
court’s finding that Dr. Nuss provided Dr. Der Sarkissian, prior
to termination, all of the process required under the
Constitution. Moreover, Dr. Der Sarkissian has failed to
demonstrate that the district court erred in finding that: (1)
he has no disability protected by the ADA and that (2) neither
WVU nor Dr. Nuss retaliated against him for requesting an
accommodation for any asserted disability.
Accordingly, we affirm on the reasoning of the district
court. See Der Sarkissian v. W. Va. Univ. Bd. of Governors, No.
1:05-cv-00144-FPS-JSK, 2008 WL 901722 (N.D. W. Va. Mar. 31,
2008) (decision on the motion of WVU and Dr. Nuss for judgment
on partial findings); Der Sarkissian v. W. Va. Univ. Bd. of
Governors, No. 1:05-cv-00144-FPS-JSK, slip op. (N.D. W. Va. Mar.
31, 2008) (findings of fact and conclusions of law following the
bench trial).
III.
For these reasons, the judgment of the district court is
AFFIRMED.

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