

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                    [NOT FOR PUBLICATION]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  &amp;  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,  &amp;                                                                         

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-
