Ayesha Khan v. Midwestern University, an Illinois not-for-profit corporation

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
February 26, 2018
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 17‐1055
AYESHA KHAN,
Plaintiff‐Appellant,
v.
MIDWESTERN UNIVERSITY, an Illinois
not‐for‐profit corporation,
Defendant‐Appellee.
Appeal from the United States
District Court for the Northern District
of Illinois, Eastern Division.
No. 1:14‐CV‐09539
John Robert Blakey,
Judge.
O R D E R
Upon consideration of the Petition for Rehearing filed by Plaintiff‐Appellant on
February 7, 2018, this court’s opinion of January 16, 2018, is amended as follows. In all
other respects, all members of the original panel have voted to deny the petition for
rehearing. Accordingly, in all other respects, the Petition for Rehearing is DENIED.
The opinion shall be amended as follows:
(1) New footnote at page 15 after the sentence, “It appears that Khan, perhaps
having second thoughts about lobbing this new and wholly unsupported claim in a
reply brief, scaled back the substance of the claim between the paper and electronic
filing of the reply brief,” as follows:
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 17‐1055 Page 2
In the petition for rehearing en banc, Khan’s attorney offers an innocent
explanation for the changes between the electronic and paper filing of the brief. We
accept the explanation that Khan’s counsel inadvertently filed an earlier, less‐edited
version of the brief electronically and the final, edited version by mail. Nevertheless, the
potential problems for the court remained. But for the chance discovery, the court
would never have discovered the discrepancy.
(2) New footnote page 16, after “Our confidence was further eroded by multiple
misrepresentations of the record,” as follows:
Khan’s petition for rehearing spends some time refuting this paragraph of the
decision and arguing about the mathematical possibility that Khan might pass her
second year curriculum. Throughout this case, this court spent an inordinate amount of
time trying to determine when Khan allegedly requested which reasonable
accommodations and then looking through course syllabi and transcripts to try to
determine when she failed particular exams in each course and whether there might be
a mathematical possibility that she could have passed any courses that made her
eligible for dismissal. Such a pursuit was folly. Not only was it an impossible task given
the record before it, but more importantly, it is not the role of an appellate court to dig
through the record to formulate a theory to determine if there is any set of facts under
which the plaintiff could survive a motion for summary judgment. That is the duty of
the plaintiff. Yet in her opening and reply briefs, Khan argues only that she sought
accommodations at some point—perhaps in late March (although she never specifically
states when) and that some accommodations were granted (she does not tell us which
ones or in which classes), and some were not. Khan never once asserts how the
unsatisfied reasonable accommodations she requested would have allowed her to
participate in the program or, more surprisingly, even that they would have allowed
her to do so at all.

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