                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 12a0320n.06

                                          No. 10-4087

                          UNITED STATES COURT OF APPEALS                                FILED
                               FOR THE SIXTH CIRCUIT                               Mar 23, 2012
                                                                             LEONARD GREEN, Clerk
Carrie Johnson,                                       )
                                                      )
       Plaintiff-Appellant,                           )
                                                      )    ON APPEAL FROM THE UNITED
v.                                                    )    STATES DISTRICT COURT FOR
                                                      )    THE SOUTHERN DISTRICT OF
Washington County Career Center,                      )    OHIO
                                                      )
       Defendant-Appellee.                            )
                                                      )


Before: SILER, CLAY, and ROGERS, Circuit Judges.

       SILER, Circuit Judge. Plaintiff Carrie Johnson, a former student in Defendant Washington

County Career Center’s (WCCC) one-year surgical technologist program, appeals the district court’s

grant of summary judgment for WCCC. Johnson brought suit under the Americans with Disabilities

Act (ADA) and the Ohio Civil Rights Act (OCRA) to contest her exclusion from the 2008 program.

       For the following reasons, we REVERSE the district court’s judgment and REMAND for

further proceedings.

                                                I.

       Interested in joining the surgical technologist program, Johnson met with WCCC officials,

including Adult Education Medical Programs Director Constance Bennett, on February 26 and 27,

2008. Johnson disclosed a “learning disability involving reading and comprehension” and inquired

about audio textbooks or a Kurzweil Reader for classes. WCCC officials assured Johnson that an

accommodation would be provided.
No. 10-4087
Johnson v. Washington County Career Center

       After those meetings, Johnson registered for the program. WCCC required only a completed

application and payment in order to admit Johnson. She began the program on February 27, near the

midpoint of the January 7 academic term. Bennett told Johnson that she had not missed much

content and that her prior associate’s degree would be sufficient for enrollment.

       That evening, during Johnson’s first class, the evening supervisor handed Johnson a note

indicating that she needed to provide “proof of [] degree and disability.” The next day, Johnson

faxed a copy of her associate’s degree diploma and a letter from her vocational rehabilitation

counselor at the Bureau of Vocational Rehabilitation. Bennett advised Johnson that the faxed

materials would be sufficient.

       On March 3, Bennett and Adult Technical Training Director Dewayne O. Poling discussed

Johnson. Poling “questioned what was wrong with [] Johnson . . . [and] stated that WCCC did not

have the time to spend for just one student, and that [Bennett] was going to have to think about what

to do since [she] recommended [] Johnson for the Program.”

       On March 4, Poling wrote to Johnson that her prior education would not apply to the surgical

technologist program. The letter advised Johnson that another program would begin in January 2009

and notified her that she would receive a refund of her payment when she returned her books.

       The next day, Johnson emailed Bennett for an explanation of the program’s refusal to accept

her prior academic work. Johnson copied Poling on the email. Bennett advised Johnson to continue

attending class while she sought clarification from Poling about the unexpected academic decision.

During Bennett’s conversation with Poling, she stated that WCCC did not have a choice whether to

provide the audio books or Kurzweil Reader. Poling responded, “There’s always a choice.”

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Johnson v. Washington County Career Center

       On March 11, Johnson appealed her removal from the surgical technologist program before

a meeting of the Board of Education of the Washington County Joint Vocational School District.

She won the appeal.

       On March 16, Johnson contacted Bennett, reported chest and side pain, and asked what

options were available if she had to miss class. Bennett advised Johnson not to worry about classes.

Johnson learned she had blood clots in her lungs, would be limited in her activities upon release from

the hospital, and should refrain from climbing stairs.The surgical technologist classes were held on

the second floor and were only accessible by stairs.

       On March 19, Bennett wrote Johnson a detailed letter, including the following specific

language, quoted at length due to its relevance:

       The only advice I can give you is to continue to study at home and I will attempt to
       contact the Instructors for assignments, which you can study for, continue to check
       with the office regarding your CD-ROM materials, and keep reminding them, that
       each day you go without them, you fall further behind. The end of the quarter will be
       the 27th, and after that students have time into the next quarter to make up the work
       they have missed, then they get the grade and the incomplete is removed.

       Please do not worry about your class as stress plays a large role in your recovery or
       lack thereof. As Lenora has repeatedly reminded all of us, the regulatory agency is
       mandating 80 surgical cases, and they are not as concerned regarding hours, per say
       [sic]. This is very positive for us in this instance. We must all realize that if you
       cannot physically negotiate the stairs and there is no alternate route to your class
       room, we cannot and will not count you responsible for the absence. We need to
       develop an alternate option for you to obtain your education and hours. This has
       been a concern of mine for some time, which I spoke to my Supervisor about, and he
       was to look into handicap accessibility. He is very busy and perhaps he has not been
       able to follow up on this issue. I do apologize to you for the inconvenience, and we
       will be working on this for you and others as needed.




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Johnson v. Washington County Career Center

       I see and understand from your call to me that you are concerned and willing to do
       whatever you can to make up missed work, and work to keep current with the class
       ....

When Bennett asked Poling about accessibility issues and the second-floor classroom, he responded,

“She can find her own way up.”

       Johnson contacted Bennett again on March 21, March 24, and March 27 to ensure everything

would be okay. Bennett explained again that any missed work could be made up the next academic

term and that Johnson would receive an incomplete for the current term. The student handbook

specified the same procedure.

       In the meantime, on March 24, Bennett met with Poling to discuss Johnson’s release from

the hospital and what accommodations would be made. Poling stated that Johnson could not come

back to WCCC. When Bennett raised the issue of accommodations, Poling “stated that he never

wanted to hear about the topic again, and stated, ‘That tail ain’t going to wag this dog.’”

       On April 4, Johnson contacted Bennett to ask where to submit completed assignments and

to request communication with her instructors as soon as possible. Johnson called WCCC again on

April 8 to try to reach her instructors. That day, Poling called Johnson’s mother and left a message

that Johnson should speak to him and not Bennett about the program.

       Meanwhile, on April 7, Poling had sent a certified letter to Johnson requesting a meeting

about her participation in the program. Additionally, the letter advised Johnson that Bennett “no

longer act[s] as the contact for all medical programs.” Instead, Poling would be “in charge and

[would] make all decisions and communications regarding the medical programs for the rest of the

school year.”

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No. 10-4087
Johnson v. Washington County Career Center

       On April 11, Johnson responded to Poling’s letter and reported that she has been trying to

reach her instructors to seek class assignments. Johnson indicated that she resorted to calling fellow

students to try to learn what assignments to complete. After receiving no response, Johnson re-sent

the email on April 15. Two days later, on April 17, Poling emailed a response to Johnson, in

relevant part:

       The Career Center is a clock hour institution and students have to be in school to get
       credit for attendance. The best I can recommend is you register for the start of our
       next program to begin January 2009. I am instructing the treasure [sic] to send you
       a full refund of monies you have paid and hopefully you will consider us again.

A WCCC staff member completed a refund form and, on the line for the student’s signature, wrote

“per D.P.” and dated the form April 28.

       In May 2008, Johnson filed suit against WCCC, contending that the institution violated the

ADA by excluding her from participation in the surgical technologist program and denying her the

benefits of the services, programs, or activities of that program. Additionally, Johnson brought suit

under the OCRA, claiming that WCCC, as a place of public accommodation, unlawfully denied her

full enjoyment of its accommodations, advantages, facilities, or privileges. As relief for the ADA

claim, Johnson demanded an injunction, attorneys’ fees, and costs, and for the OCRA claim, she

sought compensatory and punitive damages, an injunction, attorneys’ fees, and costs.

       After the close of discovery, WCCC moved for summary judgment. After briefing, the

district court granted summary judgment to WCCC, concluding that Johnson could not establish

genuine disputes of material fact that she was “otherwise qualified” to continue in the program or

that WCCC dismissed her at all, much less because of her disability. In particular, the district court


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Johnson v. Washington County Career Center

credited WCCC’s contention that its clock-hour attendance policy meant that Johnson could not

complete the program, even if she had a legitimate reason for missing classes. Moreover, the district

court articulated doubts about the credibility of Bennett and relied very little on her affidavit and

representations.

                                                   II.

           We review de novo a district court’s grant of summary judgment. Ciminillo v. Streicher, 434

F.3d 461, 464 (6th Cir. 2006).

           To establish whether dismissal from an academic program constitutes a disability

discrimination action under the ADA, a plaintiff must show that “(1) she is handicapped or disabled

as defined in each statute, (2) she is ‘otherwise qualified’ to continue in the program, and (3) she was

dismissed from the program on the basis of her handicap or disability.” Kaltenberger v. Ohio

College of Podiatric Medicine, 162 F.3d 432, 435 (6th Cir. 1998). OCRA disability discrimination

claims utilize the same analysis of ADA claims. Kleiber v. Honda of Am. Mfg., 485 F.3d 862, 872

(6th Cir. 2007). For purposes of summary judgment, WCCC elected not to contest Johnson’s

disability under the ADA and OCRA, so the summary judgment determination turns on the other two

factors.

                                                   A.

           A genuine dispute of material fact remains as to whether Johnson was “otherwise qualified”

for the surgical technologist program. When a disabled person meets a program’s necessary

requirements with reasonable accommodation, that person is “otherwise qualified” to participate in

the program. Kaltenberger, 162 F.3d at 435. That said, “‘an educational institution [need not] . .

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Johnson v. Washington County Career Center

. lower or . . . effect substantial modifications of standards to accommodate a handicapped person.’”

Id. at 436 (quoting Southeastern Community College v. Davis, 442 U.S. 397, 413 (1979)). Courts

should afford deference to professional academic judgments concerning reasonable accommodations.

Id.

       WCCC contends that, because Johnson missed a substantial number of classes, no genuine

dispute exists that she is not “otherwise qualified” to continue. On behalf of WCCC, the

superintendent tendered an affidavit stating that, for accreditation purposes, “a number of class hours

and cases are required of each student.” However, directly opposing that representation, Johnson

provided an email from an accreditation specialist with the accreditation agency stating, “We don’t

actually go by clock hours or credit hours. We look at the number of cases.”

       WCCC also relies on its student handbook as a basis for a clock-hour attendance policy

requirement. However, that student handbook states that, if a student fails to meet the minimum

attendance requirements, that student will be placed on academic probation for the following quarter,

rather than be dismissed. The student may also lose financial aid. WCCC counters that Johnson had

not even registered for the second academic term of the program.

       However, WCCC apparently waived the attendance policy up until Johnson’s enrollment,

and there is a dispute of material fact concerning any necessary, but unprovided, accommodation

subsequent to her hospitalization.

       The record also reflects that Johnson remained in constant communication with Bennett, her

program director, who assured her that she would be able to work on assignments while recovering

and make up any tests the next academic term. Bennett told Johnson specifically not to worry about

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Johnson v. Washington County Career Center

class absences. The student handbook arguably supports what Bennett advised Johnson. When

Bennett said that Johnson could make up work under the student handbook policy, Bennett served

as program director, and she had not yet been removed by Poling.

       Johnson sought to request accommodations at least twice from WCCC. A publicly funded

academic institution is not obligated to accommodate under the ADA until receiving a proper

diagnosis and request for specific accommodation. Kaltenberger, 162 F.3d at 437. First, prior to

enrolling, Johnson met with two WCCC staff members, including the program director; disclosed

her learning disability; and sought assurance that her disability would be accommodated by audio

textbooks or a Kurzweil Reader. Upon request of WCCC, Johnson also provided documentation that

she had been diagnosed with a learning disability. Bennett advised Johnson that the documentation

she provided would be acceptable, so Johnson did not provide any additional documentation. While

Johnson takes issue with the timeliness and appropriateness of WCCC’s efforts to acquire audio

books or a Kurzweil Reader, this raises a factual issue but does not support summary judgment.

       Second, as soon as she learned her doctor’s release conditions, Johnson notified Bennett that

she would not be able to climb stairs and thus could not attend class, if held on the second floor, as

before. Bennett accepted Johnson’s notification as sufficient and initiated discussions with Poling

about making the classroom accessible for Johnson. The record implies, but does not state for sure,

that Poling refused to move the surgical technologist classes to a classroom accessible by ground-

floor location or elevator.

       In short, our review of the record shows that a genuine dispute of material fact remains as to

whether Johnson stands as “otherwise qualified” under the ADA and OCRA.

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Johnson v. Washington County Career Center

                                                 B.

       Next, a genuine dispute of material fact remains as to whether WCCC dismissed Johnson

from the program because of her disability.

       WCCC contends that Johnson, after putting forth the effort she did to remain in the program

and staying in constant contact with Bennett, simply quit the program, choosing not to register for

or attend any further classes. This conclusion appears inconsistent with some evidence in the record,

including Johnson’s appeal to remain in the program, just a little more than a month before, after a

previous dismissal and her documented persistence in emails to program director Bennett.

Moreover, the April 17 email from Poling informed Johnson that she could not continue attending

WCCC since she would (purportedly) not receive credit and a refund would be processed.

       Moreover, Poling made several remarks suggesting that he did not want to deal with

disability accommodations for Johnson. Within two months of her initial program registration,

Johnson faced removal from the program twice and had to win an appeal just to remain in the

program the first time. The district court apparently found Bennett’s affidavit not to be as credible

as other evidence in the record and noted the obvious animosity between Bennett and Poling. Any

such questioning of bias or motive should be a matter for cross-examination, not summary judgment.

See Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986) (“Credibility determinations, the weighing

of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of

a judge . . . .”). Poling’s remarks and the sequence of events around those remarks present a genuine

dispute of material fact as to whether WCCC dismissed Johnson because of her disability.



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Johnson v. Washington County Career Center

                                             III.

       For the reasons described, we REVERSE the district court’s judgment and REMAND for

further proceedings.




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