Christie Nawojski failed two nursing classes at Trocaire College. No one disputes that.
She flunked the first in 2014. That happened before a psychologist diagnosed her with a reading disorder. For the two semesters after that, with special accommodations, she passed all her classes.
But then she failed again. And that got her kicked out of the private Catholic college in South Buffalo.
Like most local nursing programs, Trocaire has a two-and-done rule: Fail two required courses, and the college dismisses you.
Now, the 43-year-old Cheektowaga woman has filed a complaint against Trocaire with the state Division of Human Rights, which has found probable cause the college discriminated against her.
Nawojski had asked the college to reinstate her, saying her first failed class shouldn't count against her because, without a diagnosis, she lacked accommodations that would've helped her pass. After the college said no, she went to the state, contending she failed the second course because the college denied her a tutor.
The college, in turn, has filed a legal action in State Supreme Court to block the Division of Human Rights from getting involved. Trocaire contends the division lacks jurisdiction over how a college handles the academic standing of a student. And even if it did, the college said it provided Nawojski with all the services to which she was entitled.
"Because (her) psychologist did not recommend tutoring as an accommodation required for her disability, (she) had no legal entitlement to tutoring and Trocaire had no legal obligation to provide it," James R. Grasso, who represents the school, said in court papers filed in September 2016.
Both parties declined to comment.
Nawojski's case offers a bifocal look at two issues that could have implications for higher education locally and beyond: How much help must a college offer a person with a learning disability by law, and to what extent can the government interfere with how a private college grades its students?
The answers to those questions may start to emerge as early as Aug. 1, when the court will hold a proceeding on Trocaire's action.
Student: Failed class 'should not be held against me'
Nawojski, who has worked as a dental hygienist, lives with her husband and their teenage son off a Cheektowaga cul-de-sac.
During her second semester at Trocaire in the spring of 2014, Nawojski failed Nursing 122, a course called Health Restoration I. She told the division she didn't have enough time to finish her test.
On a hunch, she sought testing for a learning disability. Her psychologist diagnosed the reading disorder, and the Aug. 14, 2014, assessment recommended she:
- receive extra support at school.
- be in "a more organized and structured working and study environment"
- get extra time to finish assignments.
- receive modified instructions and be given minimal multitasking work.
In January 2015, Nawojski met with Lauren Ellis, the school's disability coordinator. Ellis recommended Nawojski receive "time and a half" on tests, which she could take separately from other students, and have access to recorded lectures. Nawojski also was paired with Margaret Murray, who tutored her that spring semester and the following fall semester, as a courtesy.
With her new accommodations, Nawojski retook Nursing 122 and passed.
Nawojski found the tutoring especially helpful.
"I wanted to thank you for all your hard work and I appreciate all you have done for me to help me get through the last 2 semesters," she wrote in an email to Murray in December 2015.
In the same email, Nawojski asked Murray to schedule days to meet the next semester.
In her reply email, Murray turned Nawojski down, which the student later cited in her human rights complaint. Murray told Nawojski she could tutor only students repeating the upcoming course early in the semester but could eventually take referrals from professors. Murray added she could let Nawojski "quietly come to those reviews when it starts" and that she could set appointments with other tutors.
Murray, in an interview with the Division of Human Rights, characterized her reply as telling Nawojski she "could not see her because she had not failed."
Nawojski thought she could set up the tutoring from the get-go because of her accommodations, and after she told Murray as much, the tutor said she had forgotten that and she would let her know when the tutoring sessions would begin. But Murray never reached out, and Nawojski went without a tutor for nursing that semester.
In March that year, Ellis, the disability coordinator, emailed Nawojski asking how her accommodations were working.
"I'm doing okay," she replied. "Failed my second exam. But I'm trying my best."
Nawojski's response, Ellis later told the state, "did not trigger any concerns that complainant may need further support."
In April, Murray saw the student and asked how she was doing. Nawojski said she was doing OK, Murray later told the state.
But in the first week of May, Nawojski found out she had failed Nursing 222, the Health Restoration III course.
That was her second failed class. Under the school's policy, it didn't make a difference that Nawojski retook and passed the first course she failed. Almost all area schools that offer nursing degrees – D'Youville College, Erie Community College and the University at Buffalo – have the same rules. Daemen College has a similar policy only at its graduate level, but if students retake and pass a class, it does not count toward their tally.
After failing her second class, Nawojski met with Ellis, who, according to Nawojski, told her she would work to "figure out a different approach to provide better services that would be more beneficial."
On May 12, Nawojski emailed the nursing program director, Catherine Griswold, asking her to excuse the first failure. Nawojski said she did not have support for her disability when she failed that class. But with the accommodations, she succeeded, she wrote.
Griswold denied her request.
On May 26, Nawojski got her dismissal letter.
In June, she petitioned for readmission.
"While I am willing to accept responsibility for failing NU222, the lack of success in NU122 should not be held against me," she wrote in an email to Griswold.
The college denied her request again, and then she filed her human rights complaint.
College fears 'undue burden'
Nawojski mostly fits the profile of a Trocaire student. The average age of a student is slightly above 27, making most of its students "nontraditional," according to a 2016 report from the college.
Nawojski was 38 in August 2013 when she enrolled in the nursing program, the college's most popular major.
Trocaire, in court papers, said the case should be dismissed because, as a college, it is excluded from providing reasonable accommodations for disabilities and that the Division of Human Rights has no jurisdiction in the matter.
Trocaire also points to the student's psychological assessment as proof it provided everything required. Tutoring is not explicitly mentioned, and the college had provided it, not because it had to, but because it does so with every disabled student.
The college also said the "allegation that Ms. Murray refused to tutor her during the 2016 Spring Semester is untrue."
Trocaire acknowledged its tutor "apparently forgot to follow up" with Nawojski, but that was because she had been working with 186 referrals. Trocaire said Murray's "oversight" was not the reason why Nawojski went without a tutor that spring semester.
"The reason was complainant's failure to make any further effort to obtain the tutoring that was available," Trocaire said in court papers.
Nawojski knew the names of other nursing tutors and how to contact them, the college said. The college called Nawojski's enlisting of a math tutor that semester further evidence she simply chose not to find tutoring.
"Whether a student receiving tutoring is classified as disabled or not, it is the student's responsibility to arrange for the tutoring," the college said.
In justifying its decision not to reconsider Nawojski's dismissal, Trocaire said she asked for the exemption after the fact. And, she had not yet been diagnosed with her disability when she failed the class, the college said.
Trocaire also said in court papers that exempting Nawojski "would be an undue burden on Trocaire under the [state Human Rights Law] because it would require Trocaire to fundamentally alter its academic requirements."
The college points to Nawojski's decision not to request the second failure be excused, too.
"(Her) willingness to 'accept responsibility for failing NU222' is an implicit acknowledgement that her failure in NU222 was due to her actions and inactions and not anything Trocaire did or failed to do," the school said.
Court hearing scheduled
In February, the Division of Human Rights released its investigation report. The agency concluded it has jurisdiction and found probable cause Trocaire broke the law.
"The evidence suggest that (Nawojski) was denied a reasonable accommodation for disability which resulted in her being terminated," the agency wrote.
The division said it based its conclusion on the school's providing Nawojski a tutor for two semesters and Murray's failure to contact the student to continue that tutoring, and on Ellis' decision not to get the student extra help when she learned she had failed a test.
"Ellis indicated that failing a test is not the same as failing a course; however, it would be too late for (Nawojski) to receive services after failing the second course because by then she would be expelled," the agency wrote.
The division had planned to hold a public hearing to decide whether Trocaire discriminated against Nawojski, but on June 14, the college filed a petition in State Supreme Court to block the hearing. State Supreme Court Justice E. Jeannette Ogden has scheduled a hearing on the college's petition on Aug. 1.