10-2580-cv
Brief v. Albert Einstein College of Medicine


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 1st day
of June, two thousand eleven.

Present:
            JOHN M. WALKER, JR.,
            PETER W. HALL,
            DENNY CHIN,
                              Circuit Judges.
________________________________________________

JAMES BRIEF,

                   Plaintiff-Appellant,

                   v.                                                    No. 10-2580-cv

ALBERT EINSTEIN COLLEGE OF MEDICINE,
YESHIVA UNIVERSITY, JAMES DAVID, M.D.,
NADINE T. KATZ, M.D.,

            Defendants-Appellees.
________________________________________________

FOR APPELLANT:                         RICK OSTROVE, Leeds Morelli & Brown, P.C., Carle Place, N.Y.

FOR APPELLEES:          DANIEL RIESEL, Sive, Paget & Riesel, P.C., New York, NY.
________________________________________________
       Appeal from the United States District Court for the Southern District of New York (Daniels,

J.).   ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the District Court be and hereby is AFFIRMED with respect to

the dismissal of James Brief’s federal claims, and VACATED AND REMANDED with respect to

the dismissal of Brief’s state and city law claims, with instructions that the district court dismiss

those latter claims without prejudice.

       Plaintiff-Appellant James Brief appeals from the district court’s (Daniels, J.) grant of

summary judgment to Defendants-Appellees Albert Einstein College of Medicine (“Einstein”), its

parent, Yeshiva University, and James David and Nadine T. Katz, on Brief’s claims that they

discriminated against him on account of his disability under Title III of the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12182 et seq.; Section 504 of the Rehabilitation Act, 29

U.S.C. § 794; the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. L. § 290 et seq.;

and the New York City Human Rights Law (“NYCHRL”), N.Y.C.R.R § 8-101 et seq. Brief

challenges the district court’s determination that he is not disabled within the meaning of these

statutes and that the Defendants did not deny him reasonable accommodation on account of his

disability; he has abandoned his retaliation claims as well as his claims against David and Katz,

which we therefore do not consider. We assume the parties’ familiarity with the underlying facts,

the procedural history of the case, and the issues on appeal.

I.     Federal Claims

       As a preliminary matter, because Brief has now graduated from medical school, received his

M.D., and is participating in (or has already completed) a pediatrics residency program, his claim

for injunctive relief is moot. See Fox v. Bd. of Trs. of State Univ. of N.Y., 42 F.3d 135, 140 (2d Cir.


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1994) (injunctive claims are mooted for university students who graduate because no redress is

available). For this same reason, Brief’s claim under Title III of the ADA is also moot because that

statute allows only for injunctive relief. See Powell v. Nat’l Bd. of Med. Exam’rs, 364 F.3d 79, 86

(2d Cir. 2004) (“A private individual may only obtain injunctive relief for violations of a right under

Title III; he cannot recover damages.”). Brief’s only remaining federal claim, therefore, is for

monetary damages under Section 504 of the Rehabilitation Act.

        We review the grant of summary judgment de novo, see Miller v. Wolpoff & Abramson,

L.L.P., 321 F.3d 292, 300 (2d Cir. 2003), which is appropriate only if “there is no genuine dispute

as to any material fact” and the moving party is “entitled to judgment as a matter of law,” Fed. R.

Civ. P. 56(a). Section 504 of the Rehabilitation Act, which applies to programs receiving federal

financial assistance (and is therefore applicable to Einstein), states that “‘[n]o otherwise qualified

individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the

participation in, be denied the benefits of, or be subjected to discrimination under’ any covered

program or activity.” Powell, 364 F.3d at 85 (quoting 29 U.S.C. § 794(a)). To establish a prima

facie violation under Section 504, a plaintiff must demonstrate: (1) she is a “qualified individual”

with a disability; (2) the defendants are subject to Section 504; and (3) she was “denied the

opportunity to participate in or benefit from defendants’ services, programs, or activities, or [was]

otherwise discriminated against by defendants, by reason of [her] disabilit[y].” Id. (quoting

Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003) (alternations in Powell)). With respect

to this third element, a plaintiff can base a disability discrimination claim on any of “‘three available

theories: (1) intentional discrimination (disparate treatment); (2) disparate impact; and (3) failure




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to make a reasonable accommodation.’” Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009) (quoting

Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d 565, 573 (2d Cir. 2003)).

        For purposes of this appeal, we assume, arguendo, that Brief is a “qualified individual”

within the meaning of Section 504 of the Rehabilitation Act given his Attention

Deficit/Hyperactivity Disorder (“ADHD”) diagnosis. But we conclude, as the district court correctly

held, that no reasonable jury could find that Brief suffered discrimination on account of his disability

or was denied a reasonable accommodation. Cf. Powell, 364 F.3d at 87-88 (holding, in the

alternative, that even if plaintiff could show that she was a qualified individual, her discrimination

claim failed because she offered no proof that she was discriminated against on account of her

disability).

        Similar to the ADA, the Rehabilitation Act “prohibit[s] discrimination against qualified

disabled individuals by requiring that they receive ‘reasonable accommodations’ that permit them

to have access to and take a meaningful part in . . . public accommodations.” Id. at 85; see

Alexander v. Choate, 469 U.S. 287, 301 (1985) (under Section 504, “an otherwise qualified

handicapped individual must be provided with meaningful access to the benefit that the grantee

offers”); Henrietta D., 331 F.3d at 273 (quoting Alexander, 469 U.S. at 300-01). As the Supreme

Court held in Alexander, however, the extent to which a disabled plaintiff is entitled to “meaningful

access” is contingent on “two powerful but countervailing considerations—the need to give effect

to the statutory objectives and the desire to keep § 504 within manageable bounds.” Alexander, 469

U.S. at 299, 301; see Rothschild v. Grottenthaler, 907 F.2d 286, 292 (2d Cir. 1990) (quoting

Alexander, 469 U.S. at 299). In this respect, “[a]ccommodations to permit access to handicapped

persons should not impose ‘undue financial and administrative burdens,’” Rothschild, 907 F.2d at


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292 (quoting SE. Cmty. Coll. v. Davis, 442 U.S. 397, 412-13 (1979)), nor should a covered entity

be “required to make ‘fundamental’ or ‘substantial’ modifications to accommodate the

handicapped,” Alexander, 469 U.S. at 300.            Moreover, “a defendant need not make an

accommodation at all if the requested accommodation ‘would fundamentally alter the nature of the

service, program, or activity,’” Powell, 364 F.3d at 88 (quoting 28 C.F.R.

§ 35.130(b)(7)).

       The accommodation at issue here was Brief’s request that Einstein “consider[] . . . his

disability and subsequent success since being granted . . . extra time on examinations” in deciding

whether he should be allowed to continue his studies at the medical school. The district court held

that this request for accommodation was unreasonable because it would have required Einstein to

overlook Brief’s previous exam failures. Brief challenges that determination, asserting that he never

requested that his exam failures be ignored or that Einstein waive its academic requirements.

Instead, he requested only “some intermediate ground, whereby his now-known disability could be

accommodated with a meaningful chance to succeed.”

       We agree with the district court that Brief’s request for accommodation was unreasonable.

It is clear from the record that in his written submissions to the Einstein Committee on Student

Promotions and Professional Standards (the “Committee”), and in his final appeal to Allen Spiegel,

Dean of Einstein, Brief requested that he be permitted to continue his studies at Einstein, despite the

fact that, under Einstein’s by-laws, his numerous exam failures required that he be dismissed. Thus,

notwithstanding Brief’s attempts to frame his request otherwise, for Einstein to have granted Brief’s

requested accommodation and to have allowed him to remain as a student, it would have had to

ignore his examination failures as well as its own academic by-laws. Faced with this situation,


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Einstein made the permissible—and non-discriminatory—academic decision that permitting Brief

to continue would be contrary to its “promulgated academic standards . . . [concerning] failures of

examinations.”

        In these circumstances, we have held that “[w]hen reviewing the substance of a genuinely

academic decision, courts should accord the faculty’s professional judgment great deference.”

Powell, 364 F.3d at 88 (citing Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985)). Our

decision in Powell is instructive in this case. There, the plaintiff was dismissed from medical school

after she failed an examination which under its by-laws the school required students, like the

plaintiff, to pass as a condition to promotion to their third year of medical school. See id. at 82-83.

Powell alleged in her disability action that she should be granted the accommodation of continuing

onto her third year without passing the examination. See id. at 88. Rejecting this argument, we

held:

               It was well within UConn’s authority to decide that in order for it to adhere
               to the demanding standards of a medical school responsible for producing
               competent physicians, it needed to require plaintiff to pass [the examination].
               The accommodation requested by plaintiff, that she be allowed to continue
               in the program without first passing [the exam], would have changed the
               nature and substance of UConn’s program. Other underperforming students
               were required to prove their mastery of this knowledge before being allowed
               to advance. Permitting a student who did not definitively prove her mastery
               of basic medical sciences to advance into the later stages of medical school,
               and become a treating physician who had direct contact with patients was
               something the medical school correctly believed would unreasonably alter
               the nature of its program.

Id. Our sister circuits have reached similar conclusions. See, e.g., Zukle v. Regents of Univ. of

Calif., 166 F.3d 1041, 1051 (9th Cir. 1999); McGuinness v. Univ. of N.M. Sch. of Med., 170 F.3d

974, 979-80 (10th Cir. 1998); Kaltenberger v. Ohio Coll. of Pediatric Med., 162 F.3d 432, 436-37

(6th Cir. 1998); Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 795 (1st Cir. 1992). Additionally,

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we reject Brief’s reliance on the D.C. Circuit’s decision in Singh v. George Washington University

School of Medical & Health, 508 F.3d 1097 (D.C. Cir. 2007). There, the university denied the

plaintiff’s request for accommodation solely on timeliness grounds. See id. at 1105 (“GW points

to no major commitment of resources that would be wasted as a result of its having to consider

Singh’s accommodation claim at the time she raised it.”) (emphasis added). Here, a reasonable jury

could only find that Einstein did consider Brief’s disability prior to his dismissal, since the

Committee solicited testimony from Brief and other witnesses and accepted multiple reports

detailing the extent of Brief’s mental impairment. Having weighed this evidence, however, Einstein

concluded that in light of Brief’s numerous exam failures, allowing him to continue as a student

would be contrary to the school’s academic standards. Under Powell, these facts do not present a

claim for disability-based discrimination under federal law. See Powell, 364 F.3d at 88.

II.    State and City Claims

       Although we conclude that the district court correctly granted summary judgment to the

Defendants on Brief’s federal claims, his state and city law claims are arguably governed by

different legal standards. See Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir. 2009)

(“[C]laims under the City [Human Rights Law] must be reviewed independently from and more

liberally than their federal and state counterparts[.]”) (internal quotation marks omitted); Phillips

v. City of New York, 884 N.Y.S.2d 369, 373 (1st Dep’t 2009) (“The State [Human Rights Law]

provides protections broader than the Americans with Disabilities Act[.]”). Appellees suggested at

oral argument that while the determination of disability may be different under state and municipal

law on the one hand, and under federal law on the other, the analysis of accommodation is the same.

There may be some merit to this argument with respect to Brief’s state law claim, see Phillips, 884


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N.Y.S.2d at 373 n.3 (“[U]nlike the ADA, the State HRL definition of disability has no requirement

that a physical or mental impairment must substantially limit one or more major life activities of an

individual.”), but it appears unavailing as to Brief’s city law claim, see id. at 377 (holding that the

NYCHRL must be analyzed separately given its “very different conception and statutory

architecture of ‘reasonable accommodation’”). Nevertheless, because these issues have not been

fully briefed and argued and because the law of New York in regard to relative state and federal

disability claim analysis is still developing, we see no reason to decide them in this appeal,

especially considering the district court’s limited analysis of Brief’s non-federal claims. Instead,

in the absence of any continuing basis for federal question jurisdiction, we leave these issues to the

parties to pursue in state court if the plaintiff seeks to reinstate his state and city law claims in that

forum. See Giordano v. City of New York, 274 F.3d 740, 754 (2d Cir. 2001) (“[I]n the absence of

any remaining federal claims, the appropriate analytic framework to be applied to discrimination

claims based on a ‘disability’ as defined by New York state and municipal law is a question best left

to the courts of the State of New York.”).

        We therefore VACATE the district court’s judgment with respect to Brief’s New York State

and City law claims and REMAND with instructions that the district court dismiss these claims

without prejudice. We AFFIRM the district court’s judgment in all other respects.


                                                FOR THE COURT:
                                                CATHERINE O’HAGAN WOLFE, CLERK




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