
USCA1 Opinion

	




          October 6, 1992                              _________________________          No. 92-1437                                    STEVEN WYNNE,                                Plaintiff, Appellant,                                          v.                         TUFTS UNIVERSITY SCHOOL OF MEDICINE,                                 Defendant, Appellee.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                              _________________________                                        Before                                 Breyer, Chief Judge,                                         ___________                         Torruella and Selya, Circuit Judges.                                              ______________                              _________________________               Robert LeRoux  Hernandez, with  whom  Ellis &  Ellis was  on               ________________________              ______________          brief, for appellant.               Alan  D. Rose,  with whom  Nutter, McClennen  & Fish  was on               _____________              _________________________          brief, for appellee.                              _________________________                              _________________________                    SELYA,  Circuit  Judge.   This  appeal  requires us  to                    SELYA,  Circuit  Judge.                            ______________          revisit a longstanding dispute between Tufts University School of          Medicine  and  Steven Wynne,  a former  student.   On  a previous          occasion,  we  vacated  the  district court's  entry  of  summary          judgment in  Tufts' favor.   See Wynne v.  Tufts Univ.  School of                                       ___ _____     ______________________          Medicine, 932 F.2d 19 (1st  Cir. 1991) (en banc).   After further          ________          proceedings, the  district court  again entered  summary judgment          for the defendant.  This time around, on an augmented  record, we          affirm.               Background               Background               __________                    The  facts pertinent  to  Wynne's banishment  from  the          groves  of academe are chronicled in our earlier opinion and need          not be fully rehearsed.  A succinct summary suffices.                    Wynne matriculated at Tufts  in 1983.  He failed  eight          of  fifteen first-year  courses.    Although academic  guidelines          provided  for  dismissal after  five  course  failures, the  dean          granted Wynne  a special dispensation  and allowed him  to repeat          the first year of medical school.  Over the summer of 1984, Wynne          underwent  neuropsychological  testing  at  Tufts'  instance  and          expense.    The  results,  described  in  detail  in our  earlier          opinion,  id. at 21, showed  cognitive deficits and weaknesses in                    ___          processing   discrete  units   of  information.     However,   no          differential diagnosis of  dyslexia or  any other  particularized          learning disability was made at this time.                    During   Wynne's   second   tour   of   the  first-year                                          2          curriculum,   Tufts  arranged   to   supply   him  with   tutors,          counsellors, note-takers, and  other aids.  This  time, he passed          all but two courses:  pharmacology and biochemistry.  Tufts still          did not expel Wynne.   Instead, it permitted him  to take make-up          examinations in these two subjects.   He passed pharmacology  but          failed biochemistry.  That ended the matter.  Wynne was dismissed          in September, 1985.                Prior Proceedings               Prior Proceedings               _________________                    In his court case, Wynne  alleged that he was learning-          disabled and  that Tufts  had  discriminated against  him on  the          basis of his handicap.   In short order, Wynne refined  his claim          to  allege   that  his  disability   placed  him  at   an  unfair          disadvantage in taking  written multiple-choice examinations  and          that  Tufts, for no good  reason, had stubbornly  refused to test          his proficiency in biochemistry by some other means.  Eventually,          the district court  granted summary judgment  in Tufts' favor  on          the   ground  that  Wynne,  because  of  his  inability  to  pass          biochemistry, was not an "otherwise qualified" handicapped person          within  the meaning of section  504 of the  Rehabilitation Act of          1973,  29  U.S.C.    794 (1988),  as  explicated by  the relevant          caselaw.                      On appeal,  a  panel  of this  court  reversed.    That          opinion  was  withdrawn,  however,  and the  full  court  reheard          Wynne's  appeal.   We concluded  that, in determining  whether an          aspiring   medical   student  meets   section   504's  "otherwise          qualified" prong, it is necessary to take into account the extent                                          3          to  which   reasonable  accommodations  that  will   satisfy  the          legitimate interests of both  the school and the student  are (or          are not) available and, if such accommodations exist,  the extent          to which the institution explored those alternatives.  See Wynne,                                                                 ___ _____          932  F.2d  at 24-26  (citing, inter  alia,  School Bd.  of Nassau                                        _____  ____   _____________________          County v. Arline, 480  U.S. 273 (1987)).  Recognizing  the unique          ______    ______          considerations  that  come  into  play  when  the  parties  to  a          Rehabilitation   Act  case   are  a   student  and   an  academic          institution,  particularly a  medical school  training apprentice          physicians,  we formulated  a  test for  determining whether  the          academic  institution  adequately  explored  the  availability of          reasonable accommodations:                    If the institution  submits undisputed  facts                    demonstrating  that  the  relevant  officials                    within the institution considered alternative                    means,  their feasibility, cost and effect on                    the   academic  program,   and   came  to   a                    rationally  justifiable  conclusion that  the                    available alternatives would result either in                    lowering  academic   standards  or  requiring                    substantial  program  alteration,  the  court                    could  rule  as  a  matter of  law  that  the                    institution  had  met  its  duty  of  seeking                    reasonable accommodation.  In most  cases, we                    believe  that, as  in the  qualified immunity                    context,  the  issue  of  whether  the  facts                    alleged by  a  university support  its  claim                    that  it  has  met  its  duty  of  reasonable                    accommodation  will be  a  purely legal  one.                    Only  if  essential   facts  were   genuinely                    disputed  or  if  there   were  significantly                    probative  evidence of  bad faith  or pretext                    would further fact finding be necessary.          Id.  at  26  (citation  and internal  quotation  marks  omitted).          ___          Because  the  summary  judgment  record  did  not  satisfactorily                                          4          address  this issue,1  we vacated the  judgment and  remanded for          further proceedings, leaving the district court "free to consider          other submissions [and] to enter summary judgment thereon  if [an          expanded record] meet[s] the standard we have set forth."  Id. at                                                                     ___          28.                    Following  remand,  Tufts filed  a  renewed motion  for          summary  judgment  accompanied  by   six  new  affidavits.    The          plaintiff filed a comprehensive opposition supported, inter alia,                                                                _____ ____          by  his own  supplemental affidavit.   The  court below  read the          briefs,  heard  oral  argument,  reviewed  the  parties'  updated          submissions, and determined  that Tufts had met  its burden under          Wynne.   In the lower  court's view, the  expanded record clearly          _____          showed that Tufts had evaluated the available alternatives to its          current testing format and had  reasonably concluded that it  was          not practicable  in this  instance to  depart  from the  standard          multiple-choice  format.   Accordingly, the  court again  entered          summary judgment in Tufts' favor.  This appeal ensued.               Issues               Issues               ______                    The principal  issue on appeal is  whether, given those                                        ____________________               1Tufts had filed only a single affidavit touching  upon this          issue.   Scrutiny of that affidavit, signed by the dean, revealed          the  following shortcomings:  "There is no mention [in the dean's          affidavit]  of any  consideration  of possible  alternatives, nor          reference to any discussion of  the unique qualities of  multiple          choice examinations.   There is no indication of who took part in          the decision  [not to deviate from  multiple choice examinations]          or when it was made."  Wynne, 932 F.2d at 28.  Because we thought                                 _____          that a party  seeking summary judgment  should proffer more  than          "the  simple conclusory averment of the  head of an institution,"          we  declined to accept the dean's affidavit as a sufficient basis          for shortstopping the litigation.  Id.                                             ___                                          5          facts not genuinely in dispute, Tufts can be said, as a matter of          law,  either  to  have  provided  reasonable  accommodations  for          plaintiff's handicapping condition2 or to  have demonstrated that          it reached a rationally justifiable conclusion that accommodating          plaintiff  would lower  academic  standards or  otherwise  unduly          affect its  program.  There  is also a secondary  issue:  whether          plaintiff   has   advanced   significantly   probative   evidence          sufficient to ground a finding that Tufts' reasons for not making          further accommodations were pretextual or asserted in bad faith.               Standard of Review               Standard of Review               __________________                    Summary   judgment  has  a   special  place   in  civil          litigation.  The device "has proven its usefulness as a means  of          avoiding full-dress trials  in unwinnable cases,  thereby freeing          courts to  utilize scarce  judicial resources in  more beneficial          ways."  Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.                  _______    _________________          1991),  cert.  denied, 112  S. Ct.  2965  (1992).   In operation,                  _____  ______          summary judgment's  role  is to  pierce  the boilerplate  of  the          pleadings  and assay  the parties'  proof in  order to  determine          whether trial is actually required.  See id.; see also Garside v.                                               ___ ___  ___ ____ _______          Osco  Drug, Inc.,  895  F.2d  46,  50 (1st  Cir.  1990).    Since          ________________          appellate  review  of  an  order  granting  summary  judgment  is                                        ____________________               2There  is  a  lingering  question  as  to  whether  Wynne's          disability is such that  he should be deemed "an  individual with          handicaps" within  the purview  of 29  U.S.C.    794.  Since  the          court below resolved the case  against Wynne on summary judgment,          we must take the facts and the reasonable inferences from them in          the light most  congenial to his cause.  Thus,  we assume, as the          district  court  apparently  assumed  sub  silentio,  that  Wynne                                                ___  ________          suffers from a recognizable handicap.                                          6          plenary, the court of  appeals, like the trial court,  "must view          the  entire  record in  the light  most  hospitable to  the party          opposing summary judgment, indulging all reasonable inferences in          that party's favor."   Griggs-Ryan  v. Smith, 904  F.2d 112,  115                                 ___________     _____          (1st Cir. 1990).                    We  uphold   a  grant  of  summary   judgment  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."          Fed. R. Civ. P.  56(c).  When, as here, the  movant-defendant has          suggested  that competent evidence to prove  the case is lacking,          the burden  devolves upon  the  nonmovant-plaintiff to  "document          some   factual   disagreement   sufficient   to   deflect  brevis                                                                     ______          disposition."  Mesnick, 950 F.2d at 822.                           _______                    This   burden  is   discharged   only   if  the   cited          disagreement  relates to a genuine  issue of material  fact.  See                                                                        ___          Anderson v.  Liberty Lobby,  Inc., 477  U.S. 242,  247-48 (1986).          ________     ____________________          "In  this context,  'genuine' means that  the evidence  about the          fact is such  that a reasonable  jury could resolve the  point in          favor of the nonmoving party [and] 'material' means that the fact          is  one  that might  affect  the outcome  of the  suit  under the          governing  law." United States  v. One  Parcel of  Real Property,                           _____________     ______________________________          Etc. (Great Harbor Neck,  New Shoreham, R.I.), 960 F.2d  200, 204          ____________________________________________          (1st  Cir.  1992) (citing  Anderson,  477 U.S.  at  248; internal                                     ________          quotation marks omitted).  This requirement has sharp teeth:  the                                          7          plaintiff "must present definite, competent evidence to rebut the          motion."  Mesnick,  950 F.2d  at 822.   Such evidence "cannot  be                    _______          conjectural  or problematic; it must have  substance in the sense          that  it limns differing versions of the truth which a factfinder          must resolve at an ensuing trial."  Mack v. Great Atl. & Pac. Tea                                              ____    _____________________          Co.,  871 F.2d  179,  181 (1st  Cir.  1989).   As  the Court  has          ___          cautioned,  evidence   that  "is  merely  colorable   or  is  not          significantly   probative"   cannot   deter   summary   judgment.          Anderson, 477 U.S. at 249-50 (citations omitted).          ________               Discussion               Discussion               __________                    We have carefully reviewed the amplitudinous record and          are  fully satisfied  that  the district  court  did not  err  in          granting  summary judgment.  Fairly  read, the record presents no          genuine  issue as to  any material fact.   Because  this case has          consumed so many hours of judicial time, we resist the temptation          to  wax longiloquent.    Instead, we  add  only a  few  decurtate          observations embellishing what the en banc court previously wrote          and  remarking  the significance  of  the  new materials  adduced          below.                    First:   Following remand,  Tufts satisfactorily filled                    First:          the gaps  that wrecked its  initial effort  at summary  judgment.          The expanded  record contains undisputed facts  demonstrating, in          considerable   detail,   that   Tufts'    hierarchy   "considered          alternative  means"  and   "came  to  a  rationally   justifiable          conclusion"  regarding  the  adverse  effects  of  such  putative          accommodations.    Wynne,  932  F.2d  at  26.    Tufts  not  only                             _____                                          8          documented  the importance  of biochemistry  in a  medical school          curriculum, but explained why, in the departmental chair's words,          "the  multiple choice format provides the fairest way to test the          students' mastery of  the subject matter of biochemistry."  Tufts          likewise explained what thought it had given to different methods          of  testing  proficiency  in  biochemistry and  why  it  eschewed          alternatives  to  multiple-choice   testing,  particularly   with          respect to make-up  examinations.  In so doing,  Tufts elaborated          upon the unique qualities of multiple-choice examinations as they          apply to biochemistry and offered an exposition of the historical          record  to show  the  background against  which  such tests  were          administered  to  Wynne.    In short,  Tufts  demythologized  the          institutional thought processes leading to its determination that          it  could  not  deviate  from its  wonted  format  to accommodate          Wynne's professed disability.   It concluded that to do  so would          require  substantial  program  alterations,  result  in  lowering          academic  standards,  and devalue  Tufts'  end  product    highly          trained  physicians carrying  the  prized credential  of a  Tufts          degree.                    To  be sure, Tufts' explanations, though plausible, are          not  necessarily  ironclad.    For instance,  Wynne  has  offered          evidence  that at least one  other medical school  and a national          testing service  occasionally allow oral renderings  of multiple-          choice examinations  in respect to  dyslexic students.   But, the          point  is not whether  a medical school is  "right" or "wrong" in          making program-related decisions.  Such absolutes rarely apply in                                          9          the  context  of  subjective decisionmaking,  particularly  in  a          scholastic setting.  The point is that Tufts, after undertaking a          diligent assessment of the available options, felt itself obliged          to make  "a professional,  academic judgment that  [a] reasonable          accommodation  [was] simply not  available."  Wynne,  932 F.2d at                                                        _____          27-28.   Phrased  another way,  Tufts decided, rationally  if not          inevitably, that  no further accommodation could  be made without          imposing  an  undue  (and  injurious) hardship  on  the  academic          program.    With   the  diligence  of  its   assessment  and  the          justification  for its  judgment clearly  shown in  the augmented          record, and  with the  fact of  the judgment  uncontroverted, the          deficiency  that   spoiled  Tufts'  original   effort  at  brevis                                                                     ______          disposition has been cured.                    Second:   The undisputed facts show  that Tufts neither                    Second:          ignored  Wynne nor  turned a  deaf  ear to  his plight.   To  the          contrary,  the defendant  (a) warned  Wynne in  1983 that  he was          failing biochemistry  and suggested  he defer his  examination (a          suggestion  that Wynne  scotched);  (b) arranged  for a  complete          battery  of neuropsychological  tests  after Wynne  failed  eight          courses  in his freshman year; (c) waived the rules and permitted          Wynne to  repeat the  first-year curriculum; (d)  furnished Wynne          access to tutoring, taped lectures, and the like; (e) allowed him          to  take   untimed  examinations;   and  (f)  gave   him  make-up          examinations  in  pharmacology and  biochemistry  after  he again          failed both courses.   Given  the other  circumstances extant  in          this case, we  do not  think that a  reasonable factfinder  could                                          10          conclude that Tufts, having volunteered such an array of remedial          measures,   was  guilty   of   failing  to   make  a   reasonable          accommodation  merely  because  it  did  not  also  offer  Wynne,                                                        ____          unsolicited, an oral rendering of the biochemistry examination.                    Third:   Reasonableness  is not  a  constant.   To  the                    Third:          contrary, what is reasonable in a particular situation may not be          reasonable in a  different situation    even  if the  situational          differences are relatively  slight.  Cf., e.g., United  States v.                                               ___  ____  ______________          Rodriguez-Morales, 929 F.2d 780,  785 (1st Cir. 1991) (concluding          _________________          that "reasonableness  has a protean quality"),  cert. denied, 112                                                          _____ ______          S. Ct. 868 (1992); Sierra Club v. Secretary of the Army, 820 F.2d                             ___________    _____________________          513, 517 (1st Cir. 1987) (paraphrasing Emerson and observing that          "reasonableness 'is a  mutable cloud, which  is always and  never          the  same.'").    Ultimately,  what is  reasonable  depends  on a          variable mix of factors.                    In the section 504  milieu, an academic institution can          be expected  to respond only  to what it knows  (or is chargeable          with knowing).   This means,  as the Third  Circuit has  recently          observed,  that  for a  medical school  "to  be liable  under the          Rehabilitation Act, [it]  must know or be  reasonably expected to          know of [a student's] handicap."  Nathanson v. Medical College of                                            _________    __________________          Pa., 926  F.2d 1368, 1381 (3d  Cir. 1991).  A  relevant aspect of          ___          this inquiry is whether  the student ever put the  medical school          on  notice of his handicap  by making "a  sufficiently direct and          specific  request  for special  accommodations."    Id. at  1386.                                                              ___          Thus, we  must view  the reasonableness of  Tufts' accommodations                                          11          against the backdrop of what Tufts knew about Wynne's needs while          he was enrolled there.                    Several  factors  are   entitled  to  weight  in   this          equation, including the following:  (a) Wynne was never diagnosed          as dyslexic  while enrolled at Tufts;  (b) the school gave  him a          number of special dispensations  and "second chances"   including          virtually every accommodation that  he seasonably suggested;  (c)          Wynne  had taken,  and  passed,  multiple-choice examinations  in          several courses; and (d) he never requested, at any time prior to          taking and  failing the  third  biochemistry exam,  that an  oral          rendering  be  substituted  for   the  standard  version  of  the          multiple-choice  test.3   Under  these circumstances,  we do  not          believe a rational factfinder  could conclude that Tufts' efforts          at accommodation fell short of the reasonableness standard.                    Fourth:   Wynne's allegations  of pretext do  not raise                    Fourth:          prohibitory doubts  about the reasonableness of  Tufts' attempted          accommodations  or  about  the   honesty  of  its  assessment  of          alternatives  to  multiple-choice   examinations  vis-a-vis   the          school's  educational  plan.   When  pretext  is  at  issue in  a          discrimination case, it is a plaintiff's duty to produce specific          facts which,  reasonably viewed,  tend logically to  undercut the                                        ____________________               3In  his appellate  brief,  Wynne excoriates  Tufts for  its          failure  to provide him "with the one simple accommodation he has          asked  for  and  believes would  make  a  difference:   that  the          multiple choice  examination in  biochemistry be administered  to          him orally on an untimed  basis with the assistance of a  trained          reader."   Wynne  neglects  to mention,  however,  that he  never          sought  this type  of accommodation  until  after Tufts  sent him          packing and adversary proceedings were underway.                                          12          defendant's  position.    See,   e.g.,  Villanueva  v.  Wellesley                                    ___    ____   __________      _________          College, 930 F.2d 124,  127 (1st Cir.), cert. denied, 112 St. Ct.          _______                                 _____ ______          181  (1991); Mack, 871  F.2d at 181.   The  plaintiff may neither                       ____          "rest[]   merely   upon   conclusory    allegations,   improbable          inferences,  and unsupported  speculation," Medina-Munoz  v. R.J.                                                      ____________     ____          Reynolds  Tobacco Co.,  896  F.2d  5,  8  (1st  Cir.  1990),  nor          _____________________          measurably bolster  his cause  by hurling rancorous  epithets and          espousing  tenuous insinuations.   See Mesnick, 950  F.2d at 826;                                             ___ _______          Yerardi's  Moody  St.  Restaurant  & Lounge,  Inc.  v.  Board  of          __________________________________________________      _________          Selectmen, 932 F.2d 89, 92 (1st Cir. 1991).          _________                    Here,  Wynne's charges  comprise  more cry  than  wool.          They consist of unsubstantiated conclusions, backed only by a few          uncoordinated  evidentiary   fragments.    More  is  required  to          forestall summary judgment.  See Wynne, 932 F.2d at 26.                                       ___ _____               Conclusion               Conclusion               __________                    We  need go  no further.   In  our earlier  opinion, we          recognized the existence of a statutory obligation on the part of          an academic institution such as Tufts to consider available  ways          of accommodating a handicapped  student and, when seeking summary          judgment, to produce a  factual record documenting its scrupulous          attention to this  obligation.   Id. at  25-26.   Of course,  the                                           ___          effort requires  more  than lip  service;  it must  be  sincerely          conceived and conscientiously implemented.   We think that Tufts,          the  second  time  around,   has  cleared  the  hurdle   that  we          envisioned:    the undisputed  facts  contained  in the  expanded                                          13          record, when  considered in  the deferential light  that academic          decisionmaking deserves, id. at 25, meet the required standard.                                   ___                    We  add a final note of caution.  Although both parties          to  this litigation  invite us  to paint with  a broad  brush, we          decline  their  joint invitation.   The  issue  before us  is not          whether   a  medical  student,  authoritatively  diagnosed  as  a          dyslexic and  known to  the school  to be so  afflicted, is  ever          entitled, upon  timely  request, to  an  opportunity to  take  an          examination orally.  Rather, we  are limited to the idiosyncratic          facts of Wynne's case.  The resulting record presents a narrower,          easier  issue   and we  believe that the  district court resolved          that issue correctly.          Affirmed.          Affirmed.          ________                                          14
