
USCA1 Opinion

	




          June 7, 1995                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1003                                    NANCY D. MURPHY,                                Plaintiff, Appellant,                                          v.                         FRANKLIN PIERCE LAW CENTER, ET AL.,                                Defendants, Appellees.                                 ____________________                                     ERRATA SHEET            The opinion  of this court issued  on May 31,  1995 is amended  as        follows:            On cover  sheet, change  "Nancy D.  Miller  on brief  pro se."  to                                      ________________        "Nancy D. Murphy on brief pro se."         _______________        May 31, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1003                                    NANCY D. MURPHY,                                Plaintiff, Appellant,                                          v.                         FRANKLIN PIERCE LAW CENTER, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                    [Hon. Paul J. Barbadoro, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ____________________            Nancy D. Murphy on brief pro se.            _______________            Russell F.  Hilliard  and Upton,  Sanders  &  Smith on  brief  for            ____________________      _________________________        appellees.                                 ____________________                                 ____________________                      Per Curiam.   This is an  appeal from the  district                      __________            court's  grant  of  summary  judgment in  favor  of  appellee            Franklin Pierce  Law Center.   The district  court determined            that   appellant   Nancy    Murphy's   claim   of    handicap            discrimination in  violation of    504 of  the Rehabilitation            Act of 1973, 29 U.S.C.   794, failed as a matter of law.                                    I.  BACKGROUND                                    _   __________                      Murphy  suffers from diplopia,  a genetic condition            in which weakness  in the  muscles of the  eye causes  double            vision and problems with focusing on printed matter.  She has            had  two  surgeries   (one  necessitated  by   an  automobile            accident) for this  ailment.  Murphy manages  the diplopia by            limiting  the amount of time spent reading and by engaging in            muscular  exercises prescribed  by  Dr.  John Sebestyen,  her            treating physician.  Nonetheless,  when Murphy applied to the            Law Center in 1987, she was reading without impairment.                      Murphy  began  experiencing  academic  difficulties            almost as soon as she entered the Law Center.  At  the end of            her  first year,  her G.P.A.  was 1.88  -- below  the minimum            G.P.A. of  2.0  set by  the Law  Center.   Thus, Murphy  came            within the  jurisdiction of  the Academic  Standing Committee            ("ASC").     At   this  time,   Murphy  indicated   that  her            difficulties were due  to a thyroid condition  and poor test-            taking skills; she  did not  mention the diplopia.   For  her            second  year, the ASC required Murphy to maintain a G.P.A. of            2.0 and not to receive a grade below a C-.                      Although Murphy  met these requirements  during the            fall semester, she again came before the ASC as the result of            receiving  a  D  in  Evidence  during  the  spring  semester.            Combined with D+ grades in two first-year courses, Murphy now            had more than nine credits below a C-.  This was in violation            of  the Law  Center's general  academic regulations.   Murphy            submitted an  analysis of her  situation in which  she cited,            for the first time, the diplopia as one of the  causes of her            academic problems.                      Specifically,  Murphy  stated  that   the  diplopia            produced double-vision, eyestrain, pain  and headaches -- all            of which interfered  with reading efficiency.   On the advice            of  Dr. Sebestyen, Murphy did  not read in  the morning until            she had been awake for three hours, did not read or study for            more  than  three hours  at a  time, and  slept when  she had            trouble focusing.   In this letter, Murphy requested that she            be allowed to take  tests at three-day intervals so  that her            eyestrain  would be  reduced.   At a  meeting later  in June,            Murphy  further  asked the  ASC to  permit  her to  take oral            examinations.                      Murphy also submitted to the  ASC a letter from Dr.            Sebestyen, dated August 11, 1989.   Based on a July  12 exam,            Dr.  Sebestyen concluded  that Murphy's convergence  was poor                                         -3-            and that her eye muscles were weak.  He  recommended that she            break up her reading and studying into "well-defined segments            of time such as  two hours at a  time, or three hours at  the            most."                      As for  the fifth semester, the  ASC allowed Murphy            to take only  nine credits --  the usual  minimum at the  Law            Center  is twelve.  The terms of Murphy's probation were that            she obtain  a 2.3 G.P.A., have  no grades under a  C- and not            have more than one course with a C- grade.  Again, Murphy did            not  appeal  these  terms.   At  the  end  of this  semester,            however,  Murphy's G.P.A. was 1.89; she had failed one course            and had received a D in another.                      Murphy was dismissed from  the Law Center by letter            dated  February 12, 1990.   The ASC stated  that its decision            was based on  (1) Murphy's failure  to meet the terms  of her            probation,   and  (2)  her   entire  academic   record  which            demonstrated that she lacked the ability to  complete the Law            Center's degree  program.  Murphy  then pursued an  appeal of            the  decision of the ASC.   The faculty  upheld the dismissal            essentially finding that although  the ASC had made mistakes,            they  did not  affect  the question  of  Murphy's ability  to            satisfy the academic requirements of the JD program.   Murphy            then filed this action in the federal district court.                      In granting  the motion for  summary judgment,  the            district court  concluded that  Murphy had not  presented any                                         -4-            evidence contradicting the Law Center's position that she was            dismissed because she lacked the analytic skills necessary to            succeed in law  school.  Thus, the  district court concluded,            she  had  not  been  dismissed  "solely  by  reason  of   her            disability."  The  court next  held that the  Law Center  was            entitled to  summary judgment on  the ground that  Murphy was            not  otherwise   qualified  to   complete  the   JD  program.            Specifically, the court found  that Murphy had failed despite            the fact  that she  had received  all  of the  accommodations            recommended by Dr. Sebestyen.  This appeal ensued.                                     II.  THE LAW                                     __   _______                      A.  Summary Judgment.                          ________________                      Our review of an order granting summary judgment is            plenary.  Wynne v.  Tufts Univ. School of Medicine,  976 F.2d                      _____     ______________________________            791,  794 (1st  Cir.  1992) ("Wynne  II"), cert.  denied, 113                                          __________   _____________            S.Ct. 1845 (1993).   Thus, "we 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).   If the record along with affidavits "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,"            we  will uphold the grant of  summary judgment.  Fed. R. Civ.            P. 56(c); Wynne II, 976 F.2d at 794.                      ________                      B.  The Rehabilitation Act.                          ______________________                                         -5-                      Section 504 provides 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 program  or activity  receiving  Federal financial            assistance . . . ."  29 U.S.C.   794.  We have held that a               504 claimant must show that he or she (1) was dismissed  from            a program which receives federal funds, (2) was disabled, (3)            but   nonetheless  was  otherwise   qualified,  and  (4)  was            dismissed solely because of  his or her disability.   Cook v.                                                                  ____            Rhode   Island  Dept.   of  Mental  Health,   Retardation,  &            _____________________________________________________________            Hospitals, 10  F.3d 17, 22  (1st Cir. 1993).   The parties do            _________            not dispute that Murphy  is disabled and that the  Law Center            receives federal funds.  The  primary question is whether (1)            Murphy  is an  "otherwise qualified  individual" (2)  who was            dismissed from the Law Center solely because of her handicap.                      The district court found Murphy's claim wanting  on            both  issues.   Because  we  find  that  the  district  court            correctly  determined   that  Murphy  is  not  an  "otherwise            qualified individual," we need not reach the second basis for            the ruling below.                      To  be  otherwise qualified  for  retention, Murphy            must  demonstrate  that she  was  capable  of satisfying  the            academic  and technical  requirements set  by the  Law Center            with the help  of reasonable accommodations.  See McGregor v.                                                          ___ ________                                         -6-            Louisiana State Univ.  Bd. of  Supervisors, 3  F.3d 850,  855            __________________________________________            (5th  Cir. 1993), cert. denied, 114 S.Ct. 1103 (1994).  Thus,                              ____________            we  look  to  see  whether the  Law  Center  either  provided            reasonable accommodation for  Murphy's diplopia or  reached a            rational  conclusion that  accommodating Murphy  would unduly            interfere  with its academic program.  See Wynne II, 976 F.2d                                                   ___ ________            at  793.     Where,  as  here,   the  facts  regarding   what            accommodations were made are not in dispute, this question is            a  legal one.   Wynne v. Tufts Univ.  School of Medicine, 932                            _____    _______________________________            F.2d 19, 26 (1st Cir. 1991) (en banc) (citation omitted).                                   III.  DISCUSSION                                   ___   __________                      Murphy argues that the Law Center did not engage in            the required analysis concerning what reasonable alternatives            were available  to it  for the  purpose of  accommodating her            diplopia.  She points to the faculty's decision affirming her            dismissal in which the involved faculty members note that the            ASC  never   considered  Murphy  to   be  handicapped,  never            investigated  the information contained in Murphy's letter of            June  9, 1989,  never consulted  Dr. Sebestyen  regarding the            extent of the diplopia despite his letter of August 11, 1989,            and never considered  the effects of the  diplopia in setting            the probationary  terms for Murphy's fifth  semester.  Murphy            also claims that the  Law Center, in fact, failed  to provide            any of the accommodations requested by her or  recommended by            Dr. Sebestyen.                                         -7-                       The  record reveals that the following adjustments            were made for Murphy's fifth semester -- the only time period            to  which   504's standards apply.1  First, the ASC permitted            Murphy to  carry a reduced credit load.   Of the four courses            Murphy  took, one  was  a "mini-course"  in  which the  final            examination was  scheduled prior to the  regular exam period.            The grade in another course was based solely on written work.            This left two courses in which Murphy was required to sit for            standard  examinations.     Finally,  Murphy  requested,  and            received,   an  extra   hour   in  which   to  complete   her            examinations.                      We  find that  these  measures  satisfied  the  Law            Center's obligation to  provide reasonable accommodations  to            Murphy.   Besides  resting and  being awake  for three  hours            before reading, the only recommendation made by Dr. Sebestyen            relevant to  test-taking was  that Murphy  read in blocks  of            time no greater than two to three hours and that her tests be            scheduled  at three-day  intervals.   We note  initially that            there   is   no   evidence  that   Murphy's   fifth  semester            examinations were  arranged in a manner  contrary to Murphy's                                            ____________________            1.  Because  Murphy never  informed the  Law Center  that the            diplopia was  interfering with  her ability to  perform until            after  the end of her  fourth semester, it  is not chargeable            with notice of this handicap before then.   See Wynne II, 976                                                        ___ ________            F.2d   at  795  (to  be  liable  under     504,  an  academic            institution  must have,  or reasonably  be expected  to have,            knowledge of a student's disability) (citation omitted).                                         -8-            proposed schedule.  Thus, it appears  that she had sufficient            time between her examinations to permit her to rest her eyes.                      As for  the extra  hour for  the completion  of her            examinations, Murphy  complains that the only  effect of this            accommodation  was   to  lengthen  the  three-  to  four-hour            duration  of finals  to  four  to  five  hours.    Thus,  she            concludes,  she was forced to exceed the limits placed on her            by  Dr. Sebestyen.   However,  Dr. Sebestyen  never indicated            that Murphy  required more than the usual time for completing                                  ____            her tests.  Thus, instead of using the extra hour to complete            the  examinations, we perceive no reason why Murphy could not            have taken the additional hour to rest her eyes  or to sleep,            thereby following Dr. Sebestyen's specific advice.                      Murphy  also emphasizes  that she  never was  given            oral  examinations as she had asked.  According to Murphy, in            response  to  this request  and  in  an  apparent  effort  to            understand the effects of Murphy's diplopia, the ASC arranged            for a second Evidence  examination to be administered orally.            Due  to a mix-up, however, the test  was in written form when            Murphy  took it.   When the ASC  set the terms  for the fifth            semester, it  nonetheless was  under the  mistaken impression            that the exam had, in fact, been oral.                      We  do  not  find  the want  of  oral  examinations            probative  of a  failure  reasonably to  accommodate Murphy's            diplopia.    Simply, there  is  no evidence  that  Murphy had                                         -9-            difficulty reading for two or three hour time periods or that            her comprehension was  reduced by having to read,  as opposed            to   hearing,  her   examinations.     Dr.   Sebestyen  never            recommended   oral  examinations  or  suggested  that  Murphy            refrain from  reading altogether.   In short, Murphy  has not            _______            shown that  her performance would have  improved through oral            exams; that is, she has not shown that she would be otherwise            qualified if tested orally.                      Murphy further  argues  that by  requiring  her  to            maintain a 2.3 grade point average in the fifth semester, the            ASC  had  demanded  more  of  her  than  of  non-probationary            students (who needed  to maintain  only a 2.0  average).   In            this regard, Murphy  points out that  her overall average  at            the  end of  the fifth  semester was  2.05 --  above the  Law            Center's  minimum  requirement.   The  faculty  noted in  its            decision   upholding  Murphy's  dismissal  that  students  on            probation were  often required  to have grade  point averages            higher than the minimum.                      Murphy did not submit any evidence showing that she            was  singled out or that  the ASC demanded  the higher G.P.A.            for  discriminatory   reasons.    Merely   requiring  special            probationary terms is not  sufficient to demonstrate that the            Law  Center failed  adequately  to accommodate  Murphy.   See                                                                      ___            McGregor,  3  F.3d  at  858  n.9,  860  (where  disabled  law            ________            student's  G.P.A.  was  above  the minimum  imposed  on  non-                                         -10-            probationary students, but below the G.P.A.  set forth in the            terms of  his probation,   504 did not require the law school            to let him  proceed to his next year).   In any event, Murphy            still failed  to comply  with the generally  applied academic            provision  that a  student have  not more  than nine  credits            below a C-.                      Murphy's  most  emphatic   argument  is  that   the            district court  erred in assigning the  burdens of production            and persuasion that the parties must meet in a Rehabilitation            Act claim.  She correctly notes that the circuits are divided            on this question.   One  camp holds that  the plaintiff  must            make a prima  facie showing  that she would  be qualified  to            participate in the program  if reasonable accommodations were            made.  The  burden then  shifts to the  defendant to  produce                                                                  _______            evidence that reasonable accommodations were made and/or that            the   plaintiff's   requested  accommodations   would  unduly            interfere with the quality  or integrity of the program.   At            that  point, the burden shifts back to the plaintiff to rebut            that evidence or show  that the institution's actions  were a            pretext for discrimination.  See, e.g., Teahan v. Metro-North                                         _________  ______    ___________            Commuter  R.  Co.,  951  F.2d 511,  515-16  (2d  Cir.  1991).            _________________            Another camp places on the defense the burden of  persuasion,                                                              __________            rather than production.  See,  e.g., Pushkin v. University of                                     __________  _______    _____________            Colorado, 658 F.2d 1372, 1387 (10th Cir. 1981).  This circuit            ________            has never squarely addressed the issue.                                         -11-                      Murphy  argues  that  the  district  court  wrongly            applied  the production standard  rather than  the persuasion            standard.    But under  any standard  she  must, at  the very            least, make a sufficient  prima facie case that she  would be            qualified  with  the  aid  of  oral  examinations,  the  only            requested accommodation that the school did not provide.   As            we  noted earlier, she did  not make that  showing.  Murphy's            tests  were administered  at intervals  of several  days, and            they  did not require  her to read for  more than three hours            without a break.   There is no reason to  think that Murphy's            performance  would improve if  she were not  required to take            written examinations at all.                                   IV.  CONCLUSION                                   __   __________                      The fact  that the ASC might  not have specifically            considered the effects  of Murphy's  diplopia in  determining            what  accommodations  to  provide  does  not  mean  that  the            accommodations  she actually  received were  not "reasonable"            within the meaning of   504.  We therefore conclude that,  as            a  matter  of law,  Murphy  was not  otherwise  qualified for            retention as a student at the Law Center.  That is, even with            the accommodations  provided by  the ASC,  she was  unable to            meet both the Law Center's degree requirements and the  terms            of her probation.                      The judgment of the district court is affirmed.                                                            ________                                         -12-
