     Case: 14-51225      Document: 00513303797         Page: 1    Date Filed: 12/11/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-51225                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
JIN CHOI,                                                               December 11, 2015
                                                                           Lyle W. Cayce
              Plaintiff - Appellant                                             Clerk

v.

UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT SAN
ANTONIO; KENNETH KALKWARF, D.D.S., M.S. Dean, The University of
Texas Health Science Center at San Antonio Dental School, In his Official
Capacity; RITA R. PARMA, D.D.S. Assistant Professor, at The University of
Texas Health Science Center at San Antonio Dental School, In her Individual
Capacity; WILLIAM HENRICH, M.D. President The University of Texas
Health Science Center at San Antonio In his Official Capacity,

              Defendants - Appellees



                  Appeals from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:13-CV-846


Before STEWART, Chief Judge, and CLEMENT and ELROD, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Jin Choi was a dental student at the University of
Texas Health Science Center at San Antonio (the “Dental School” or “School”).
Choi struggled with his course work from the beginning of his time at the


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                     No. 14-51225
School and had to repeat his first-year classes.              During his second-year
coursework, Choi was diagnosed with Attention Deficit Disorder (“ADD”). Choi
continued to struggle academically during his third year at the School, was
placed in remediation, and ultimately failed one of his third-year clinical
courses. As a result, he was dismissed from the School. Choi informed the
School of his ADD diagnosis for the first time during this dismissal process.
After failing in his appeals to the Dean of the Dental School, and to the
University, Choi filed suit in federal court claiming that his dismissal violated
his statutory and constitutional rights.           The district court dismissed his
complaint. We AFFIRM.
                                            I.
       Choi argues that the district court erred in dismissing his discrimination
claims brought under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, et
seq. (the “Rehabilitation Act”) and the Americans with Disabilities Act, 42
U.S.C. § 12132, et seq. (the “ADA”). 1             Specifically, he claims that the
Defendants failed to provide reasonable accommodations for his disability.
      The district court granted Defendants’ motion to dismiss Choi’s ADA and
Rehabilitation Act claims pursuant to Federal Rule of Civil Procedure 12(b)(6).
We review the grant of a motion to dismiss under Rule 12(b)(6) de novo.
Elsensohn v. St. Tammany Par. Sheriff’s Office, 530 F.3d 368, 371 (5th Cir.
2008). “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on
its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks



      1  Choi brought a number of other claims before the district court, including due
process, equal protection, and First Amendment claims. Because his appellate briefs do not
raise these arguments, they are waived. See Procter & Gamble Co. v. Amway Corp., 376 F.3d
496, 499 n.1 (5th Cir. 2004). Choi’s passing reference to his equal protection claim in the
“Summary of the Argument” section of his appellate brief is insufficient to prevent this
waiver. United States v. Thames, 214 F.3d 608, 611 n.3 (5th Cir. 2000).
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                                       No. 14-51225
and citation omitted). “A pleading that offers labels and conclusions or a
formulaic recitation of the elements of a cause of action will not do. Nor does
a complaint suffice if it tenders naked assertion[s] devoid of further factual
enhancement.”       Id. (alteration in original) (internal quotation marks and
citations omitted). 2
       A claim for failure to accommodate under the ADA has the following
elements: (1) the plaintiff is a qualified individual with a disability; (2) the
disability and its consequential limitations were known by the covered
institution; and (3) the covered institution failed to make reasonable
accommodations for such known limitations. Neely v. PSEG Tex., Ltd. P’ship,
735 F.3d 242, 247 (5th Cir. 2013).             These elements also apply to Choi’s
Rehabilitation Act claims. See Bennett-Nelson v. La. Bd. of Regents, 431 F.3d
448, 454 (5th Cir. 2005) (noting that public entities have the same obligation
to make reasonable accommodations for disabled individuals). Because Choi
alleged insufficient facts to show that his disability and its consequential
limitations were known by the Dental School, we need not address whether he
was a qualified individual or whether the School failed to make reasonable
accommodations.
       Choi’s claim is foreclosed under the principles we outlined in Taylor v.
Principal Financial Group., Inc., 93 F.3d 155 (5th Cir. 1996). In Taylor, we
explained that under the ADA “it is important to distinguish between an
employer’s knowledge of an employee’s disability versus an employer’s




       2 Choi argues that the district court applied the wrong legal standard in evaluating
Defendants’ Rule 12(b)(6) motion. Although he does not flesh out this argument fully in his
briefs, he appears to rely on the “no set of facts” standard outlined in Conley v. Gibson, 355
U.S. 41 (1957). Of course, this argument lacks merit as “we no longer apply the minimal
standard of adequate pleading set forth in Conley v. Gibson . . . in light of [the Supreme
Court’s decisions in] Twombly and Iqbal.” Wisznia Co. v. Gen. Star Indem. Co., 759 F.3d 446,
454 (5th Cir. 2014) (internal quotation marks and citations omitted).
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knowledge of any limitations experienced by the employee as a result of that
disability. This distinction is important because the ADA requires employers
to reasonably accommodate limitations, not disabilities.”                   Id. at 164.     We
concluded that “it is incumbent upon the ADA plaintiff to assert not only a
disability, but also any limitation resulting therefrom.” Id.; see also Gammage
v. W. Jasper Sch. Bd. of Educ., 179 F.3d 952, 954–55 (5th Cir. 1999). 3 Here,
Choi never alleges that he informed the Dental School of limitations resulting
from his ADD. In fact, Choi never alleges that he provided the School with any
information about his disability beyond his diagnosis. 4
       Choi attempts to overcome this shortcoming in his pleadings by asserting
that his limitations were “open, obvious, and apparent” to the Dental School.
See Taylor, 93 F.3d at 165. In support of this argument, Choi points to the
following allegations: (1) various faculty members reacted negatively towards
him; (2) one faculty member stated that he had a “mental problem” and had a
“tendency to make things up”; (3) several faculty members observed that he
failed to pay attention and seemed in a hurry; and (4) three faculty members
asked him if he had a learning disability after he received a failing grade in a
third-year course. These allegations are insufficient. As we explained in
Taylor, “[w]hen dealing in the amorphous world of mental disability,” it will
often be impossible for an employer to identify an employee’s specific
disabilities, limitations, and possible accommodations. Id. That is the case


       3 This is consistent with the statutory language of the ADA, which defines
discrimination as, inter alia, “not making reasonable accommodations to the known physical
or mental limitations of an otherwise qualified individual with a disability.” 42 U.S.C.
§ 12112(b)(5)(A) (emphasis added).
       4 Oddly, Choi does not even allege facts connecting his academic shortfall and

subsequent dismissal to his ADD. Instead, he alleges that he was dismissed from the Dental
School “because of the animus of one teacher,” who had “no objective criteria” upon which to
base his removal. This may explain why he: (1) did not tell the School about his ADD
diagnosis until after he failed his third-year clinical course and failed at remediation; and (2)
even then, did not disclose any limitations resulting from his ADD.
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here: there is simply nothing in Choi’s allegations that would have notified the
Dental School of Choi’s limitations requiring accommodation.
      Because Choi does not sufficiently allege that his disability and its
consequential limitations were known by the Dental School, he has failed to
state a claim for which relief may be granted.
                                      II.
      For the foregoing reasons, we AFFIRM.




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