   Case: 11-20025       Document: 00511817201         Page: 1     Date Filed: 04/10/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           April 10, 2012
                                       No. 11-20025
                                                                           Lyle W. Cayce
                                                                                Clerk



DARIN DUNCAN,

                                                  Plaintiff-Appellant,

versus

UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT HOUSTON,

                                                  Defendant-Appellee.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                 No. 4:09-CV-715




Before SMITH, GARZA, and SOUTHWICK, Circuit Judges.
PER CURIAM:*


       Darin Duncan brought claims alleging that his dismissal from medical
school was the result of unlawful disability discrimination. He asserted several


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-20025

constitutional violations and state tort and contract claims. Except for a claim
under the Rehabilitation Act of 1973 (the “RA”), all of Duncan’s causes of action
were dismissed as barred by state sovereign immunity. Summary judgment was
later granted in favor of the medical school on the RA claim. We affirm.


                                          I.
          Candidates for the degree of Medical Doctor at University of Texas Health
Science Center at Houston (“UTHealth”) must complete a four-year program.
According to UTHealth’s written admissions criteria, students must be able to
tolerate physically taxing workloads and to function effectively under stress. In
addition to studying subjects such as neuroscience and immunology, students
must complete service rotations that test their clinical judgment and practical
skills.
          UTHealth also evaluates students more generally for their suitability for
the practice of medicine, including noncognitive skills such as interpersonal rela-
tions. Student suitability is gauged by a rotating group of twenty-three faculty
members, called the Student Evaluation and Promotion Committee (“SEPC”),
which evaluates students throughout their tenure at the school and decides
whether to promote them to subsequent years of study.
          Duncan first entered UTHealth in August 2004. Within months, allega-
tions arose that he was harassing a female student. At that time, he was coun-
seled and reminded about the professionalism and suitability provisions; admin-
istrators warned him that future incidents would be referred to the SEPC.
Approximately a year later, Duncan distributed an advance copy of a column he
had written for an online medical website. A fellow student believed its contents
were racially disparaging. A UTHealth administrator facilitated a resolution

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                                       No. 11-20025

between Duncan and the offended student. Duncan was again spared a referral
to the SEPC.
       In 2006, Duncan failed his Physical Diagnosis course because he neglected
to complete his preceptorship.1 Although that course was a prerequisite to
advancement to the third year, Duncan registered and began his third-year
Neurology rotation without consulting with any faculty regarding the course
failure. After being instructed to withdraw from Neurology, Duncan attempted
to complete Physical Diagnosis by asking a physician who had never observed
Duncan’s clinical activities to sign off on his preceptor forms. That physician
reported the irregularity to the SEPC. Citing suitability concerns and the failing
grade, the SEPC dismissed Duncan from UTHealth.
       Duncan was permitted to reenter UTHealth for the Spring 2007 semester.
He remediated his Physical Diagnosis course and appropriately began third-year
work. Within a short time, he again found himself before the SEPC for attempt-
ing to sit for a final exam prematurely. He admitted to exercising poor judgment
and, according to the meeting minutes, said he had done it in order to “fit in with
other[] students.” In June 2008, Duncan received a marginal grade in his Cardi-
ology elective and once again was called before the SEPC. At this third appear-
ance, the committee decided to dismiss him permanently from UTHealth.
       Duncan sued UTHealth claiming violations of Section 504 of the RA and
Title II of the Americans with Disabilities Act (“ADA”). He further claimed vio-
lations of due process and the First Amendment via 42 U.S.C. § 1983. He
brought state-law claims for mental anguish and breach of contract.



       1
        A preceptorship is a period of practical experience and training under the supervision
of an expert.

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      The district court dismissed in part, holding that except for the claim
under the RA, state sovereign immunity deprived the court of jurisdiction over
Duncan’s claims. After discovery, the court entered summary judgment for
UTHealth on the remaining claim. Duncan appeals.


                                        II.
      We review de novo a Rule 12(b)(1) dismissal based on sovereign immunity.
Meyers ex rel. Benning v. Texas, 410 F.3d 236, 240 (5th Cir. 2005). We consider
the plaintiff’s allegations as true; our “review is limited to determining whether
the district court’s application of the law is correct.” Freeman v. United States,
556 F.3d 326, 334 (5th Cir. 2009) (internal quotation marks omitted).
      Our review of a summary judgment is also de novo. Holt v. State Farm
Fire & Cas. Co., 627 F.3d 188, 191 (5th Cir. 2010). Summary judgment is proper
where there is “no genuine dispute as to any material fact.” FED. R. CIV. P. 56(a).
Like the trial court, we consider all evidence and draw all inferences in the
manner most favorable to the non-movant. Holt, 627 F.3d at 191. “Even if we
do not agree with the reasons given by the district court to support summary
judgment, we may affirm the district court’s ruling on any grounds supported by
the record.” Lifecare Hosps., Inc. v. Health Plus of La., Inc., 418 F.3d 436, 439
(5th Cir. 2005).


                                       III.
      The Eleventh Amendment declares there is no “Judicial power of the
United States” over a suit “against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State.” U.S. CONST.
amend. XI. Despite the limited categories of suits barred by the Amendment’s

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literal language, the Supreme Court has long interpreted the Amendment as
expressive of the broader proposition that a state has immunity from suits
brought by her own citizens as well as by those of another state. Edelman v.
Jordan, 415 U.S. 651, 662-63 (1974). As a public university, UTHealth enjoys
the state’s sovereign immunity.2
       Thus, Duncan, though a Texas resident, cannot bring any of his claims
against UTHealth unless he fits them within one of three recognized exceptions
to sovereign immunity: suits seek injunctive or declaratory relief against state
officials under Ex parte Young, 209 U.S. 123 (1908); a state’s waiver of immun-
ity, Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 267 (1997); or Congress’s abroga-
tion of state immunity via Section 5 of the Fourteenth Amendment, Bd. of Trs.
of Univ. of Ala. v. Garrett, 531 U.S. 356, 364 (2001).
       Although Duncan requests injunctive relief, the Ex parte Young exception
requires a plaintiff to name state officials as defendants in their official capaci-
ties. Kentucky v. Graham, 473 U.S. 159. 169 n.18 (1985). Duncan sued only
UTHealth. No exception applies to his § 1983 claims, because there has been no
abrogation by Congress, see Quern v. Jordan, 440 U.S. 332, 345 (1979), nor
waiver by the State of Texas, Aguilar v. Tex. Dep’t of Crim. Justice, 160 F.3d
1052, 1054 (5th Cir. 1998). Duncan’s state law actions are also barred by Texas’s
sovereign immunity.3
       The district court thus properly dismissed all the foregoing claims. The
court also properly refused to hold that sovereign immunity bars Duncan’s claim

       2
         See, e.g., Nelson v. Univ. of Tex. at Dall., 535 F.3d 318, 320 (5th Cir. 2008); United
States ex rel. Foulds v. Tex. Tech Univ., 171 F.3d 279, 289 n.14 (5th Cir. 1999).
       3
         See Kitchens v. Tex. Dep’t of Human Res., 747 F.2d 985, 986 (5th Cir. 1984) (contract
claims); Sherwinski v. Peterson, 98 F.3d 849, 852 (5th Cir. 1996) (tort claims).

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under the RA. By accepting federal financial assistance, Texas waived sovereign
immunity for discrimination suits under Section 504. Miller v. Tex. Tech Univ.
Health Scis. Ctr., 421 F.3d 342, 345 (5th Cir. 2005) (en banc).
       We now examine sovereign immunity as to Title II of the ADA. Because
the ADA’s application to UTHealth is not linked to the provision of federal fund-
ing, there was no waiver of immunity. See Pace v. Bogalusa City Sch. Bd., 403
F.3d 272, 276 n.4, 291 (5th Cir. 2005) (en banc). Sovereign immunity thus bars
Title II claims against the medical school unless Congress has validly abrogated
that immunity under its power to enforce the Constitution’s substantive guaran-
tees through the Fourteenth Amendment.
       Determining whether sovereign immunity has been abrogated as to a par-
ticular Title II claim hinges on three inquiries. First, the court must consider
“which aspects of the State’s alleged conduct violated Title II.” United States v.
Georgia, 546 U.S. 151, 159 (2006). Next, the court must determine “to what
extent such misconduct also violated the Fourteenth Amendment.” Id. If the
alleged conduct violates both a constitutional guarantee and Title II, then there
is no immunity, but if the conduct offends neither Title II nor the Constitution,
then the suit must fail. If “the State’s conduct violated Title II but did not vio-
late the Fourteenth Amendment,” however, the court must make a third inquiry
to determine ‘whether Congress’s purported abrogation of sovereign immunity
as to that class of conduct is nevertheless valid.’”4 Hale v. King, 642 F.3d 492,


       4
         When used in this context, the reference to the Fourteenth Amendment includes all
the incorporated provisions of the Bill of Rights. For example, Georgia pertained to Eighth
Amendment claims against a state prison. Georgia, 546 U.S. at 157, 159; see also McDonald
v. City of Chicago, 130 S.Ct. 3020, 3035 (2010) (stating that Bill of Rights protections are
“enforced against the States under the Fourteenth Amendment according to the same stan-
dards that protect those personal rights against federal encroachment”).

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498 (5th Cir. 2011) (interpreting Georgia). The third test arises from the princi-
ple that Congress’s power under the Fourteenth Amendment includes authority
to prohibit conduct that is not itself unconstitutional but that Congress deter-
mines should be barred by one of its enactments “both to remedy and to deter
violation of rights guaranteed” by the Amendment. Kimel v. Fla. Bd. of Regents,
528 U.S. 62, 81 (2000). Because Title II might still abrogate sovereign immunity
for violations that fall short of a constitutional violation, the courts must always
assess the underlying merits of the cause of action. Hale, 642 F.3d at 498.
      The district court did not offer reasons for its dismissal other than to state
that UTHealth’s motion was “well founded.” That motion had argued that as to
the ADA, the “State’s immunity is abrogated only for conduct that also consti-
tutes a violation of the Constitution.” As Hale informs, that is incorrect. We do
not conclude, however, that the district court erred in granting the motion. We
explain in our summary-judgment analysis below that there is no genuine issue
as to Duncan’s disability under the RA. Because the statutory definitions of dis-
ability are identical in the ADA and the RA, Duncan likewise cannot survive
summary judgment as to the ADA. See 29 U.S.C. § 705(9)(B); Pace, 403 F.3d at
287-88 & n.76.
      Duncan had a reasonable opportunity to present evidence relevant to disa-
bility under both statutes. Therefore, it is unnecessary to address whether the
district court’s conclusion about UTHealth’s immunity from suit under the ADA
should have awaited summary judgment.


                                        IV.
      The RA protects individuals from exclusion from schools receiving federal
funds, such as UTHealth, based on their disability. 29 U.S.C. § 794. To estab-

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                                       No. 11-20025

lish a prima facie case of discrimination under the RA, a plaintiff must show
that he was (1) disabled within the meaning of the RA, (2) subjected to an
adverse action “solely by reason of her or his disability,” and (3) otherwise
qualified for the program.5
       Without dispute by either side, we apply here the familiar burden-shifting
formula from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973),
to claims brought under the RA.6 If the plaintiff establishes a prima facie case,
the burden of production shifts to the defendant to “articulate some legitimate
nondiscriminatory reason” for its actions. Daigle v. Liberty Life Ins. Co., 70 F.3d
394, 396 (5th Cir. 1995). To satisfy its burden of production, the defendant need
only produce “any evidence ‘which, taken as true, would permit the conclusion
that there was a nondiscriminatory reason for the adverse action.’” Id. (quoting
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993)).
       Our analysis begins and ends at the first stage. Duncan’s prima facie case
fails for lack of a qualifying disability. Accordingly, no burden of production
shifts to UTHealth.
       To come within the coverage of the RA, a person must have a “physical or
mental impairment that substantially limits one or more major life activities.”
42 U.S.C. § 12102(1)(A). These are activities such as “hearing, speaking, breath-



       5
       See Soledad v. U.S. Dep’t of Treasury, 304 F.3d 500, 504-05 & n.7 (5th Cir. 2002)
(emphasis omitted); McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 279-80 (5th Cir. 2000).
       6
         In earlier unpublished opinions, we determined that the great majority of other cir-
cuits have explicitly applied McDonnell Douglas to claims under the RA. E.g., Handy v.
Brownlee, 118 F. App’x 850, 854 & n.3 (5th Cir. 2004) (per curiam) (collecting cases from nine
circuit courts of appeals). Lending further support to this approach is this circuit’s holding
that caselaw interpreting the ADA and Rehabilitation Act can generally be used interchange-
ably. See Pace, 403 F.3d at 287-88 & n.76.

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ing, learning and working.” McInnis, 207 F.3d at 280. The Supreme Court has
interpreted this term strictly “to create a demanding standard to qualifying as
disabled.” Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002).7
Congress has directed that we engage in a case-by-case analysis. See id. at 198.
Thus, whether a plaintiff has a disability under the RA “is not necessarily based
on the name or diagnosis of the impairment the person has, but rather on the
effect of that impairment on the life of the individual.” Id. at 198.
       Duncan claims that major depression substantially limits his ability to
“learn” and “work” at medical school. A psychiatrist has opined that Duncan’s
symptoms began near the close of the first year of medical school and lasted into
the second. He identified Duncan’s symptoms as “depressed mood, diminished
interest in daily activities, [and] weight loss” as well as “insomnia, and decreased
attention and concentration.” These symptoms also were said to affect “memory
and [to have] negatively impacted the ability to work at medical school clinics
and learn including at medical school classes and to lose interest in both.”8
       Duncan has also claimed, however, that treatment would have made him
qualified for medical school. Taken as correct, that assertion disproves his claim


       7
         Congress has amended the ADA and RA to ease the plaintiff’s burden from that
recognized in Williams and Sutton v. United Air Lines, 527 U.S. 471 (1999). ADA Amend-
ments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553. The incidents in this lawsuit predate
the January 1, 2009, effective date of those amendments, and the changes were not retro-
active. See Carmona v. Sw. Airlines Co., 604 F.3d 848, 857 (5th Cir. 2010).
       8
         On appeal, Duncan cites only these two major life activities. The district court separ-
ately considered whether Duncan could show substantial impairment as to “his ability to get
along with others.” Without deciding whether that constitutes a major life activity, we agree
that such an argument fails, because Duncan’s psychiatrist did not so much as intimate that
conflict with others (i.e., the harassment allegations or purportedly insensitive Internet col-
umn) was a symptom of Duncan’s depression. Tellingly, in his response to summary judgment
Duncan characterized those problems as “not severe.”

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                                      No. 11-20025

of a qualifying disability. Disability must be viewed in the light of available
treatment and corrective measures. Sutton v. United Air Lines, Inc., 527 U.S.
471, 488-89 (1999). Because Duncan himself argues there were available treat-
ments, he did not have a qualifying disability.9
       Duncan failed to establish a genuine issue of fact as to a qualifying disabil-
ity. That failure meant that his claims under the RA and the ADA were properly
dismissed, in addition to those barred by sovereign immunity.
       AFFIRMED.




       9
         See Carmona, 604 F.3d at 855 (“In Sutton, the Court held that the mitigating effects
of medication had to be taken into account in determining whether or not a person was ‘sub-
stantially limited’ in performing a major life activity.”).

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