                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        MAR 6 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

TROY BEEMER,                                    No.    17-56573

                Plaintiff-Appellant,            D.C. No.
                                                2:15-cv-01458-CAS-SS
 v.

UNIVERSITY OF SOUTHERN                          MEMORANDUM*
CALIFORNIA and DOES, 1-10,

                Defendants-Appellees.

                   Appeal from the United States District Court
                       for the Central District of California
                   Christina A. Snyder, District Judge, Presiding

                            Submitted March 4, 2019**
                              Pasadena, California

Before: KLEINFELD, Circuit Judge, COLE, *** Chief Judge, and NGUYEN,
Circuit Judge.

      Troy Beemer appeals the district court’s grant of summary judgment in favor



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable R. Guy Cole, Jr., United States Chief Judge for the
Sixth Circuit Court of Appeals, sitting by designation.
of the University of Southern California (“USC”) on Beemer’s claim that USC

failed to reasonably accommodate his disabilities under the Americans with

Disabilities Act, 42 U.S.C. § 12132; the Rehabilitation Act, 29 U.S.C. § 794; and

the Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq. We have jurisdiction

under 28 U.S.C. § 1291 and affirm.

      To establish a prima facie case of disability discrimination, Beemer must

show that (1) he is disabled, (2) he is “otherwise qualified,” to remain at USC,

meaning that he “can meet the essential eligibility requirements [] with or without

reasonable accommodation,” (3) he was dismissed “solely because of [his]

disability,” and (4) USC “receives federal financial assistance (for the

Rehabilitation Act claim), or is a public entity (for the ADA claim).” Zukle v.

Regents of Univ. of Cal., 166 F.3d 1041, 1045 (9th Cir. 1999). Professional

schools are not required to “lower or to effect substantial modifications of

standards” to accommodate a person living with a disability. Se. Cmty. Coll. v.

Davis, 442 U.S. 397, 413–14 (1979) (holding that nursing school lawfully denied

admission to applicant with hearing impairment).

      Here, construing the facts in the light most favorable to Beemer, see Bravo

v. City of Santa Maria, 665 F.3d 1076, 1083 (9th Cir. 2011), we hold that the

district court properly granted summary judgment to USC. As the district court

concluded, USC never dismissed Beemer from the Nurse Anesthetist program.


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Rather, Beemer chose not to return following a medical leave of absence.

Beemer’s prima facie case fails because the third element—that he was dismissed

due to his disability—was not met.

      Beemer’s argument that he was constructively dismissed from the program

is unsupported by the evidence. But even assuming that Beemer was

constructively dismissed, his claims would nevertheless fail because he was not

otherwise qualified for the program despite receiving reasonable accommodations

from USC, which included allowing Beemer to take time off, leave clinical sites

early in order to have extra time to prepare patient care plans, delay completion of

mandatory clinical training, and receive extra time for examinations. Despite these

accommodations, Beemer performed poorly. While enrolled in the classroom

portion of the program, he repeatedly failed to attend class, was unresponsive to his

team member for a major group presentation project worth forty percent of the

course grade, was unresponsive to the course instructor and program director, Dr.

Gold, and then ultimately turned in a paper that did not meet the assignment

criteria and entirely failed to give the required presentation. Beemer was placed on

academic probation but failed to comply with the terms of the probation contract.

Beemer faults USC for denying other requested accommodations. However, USC

properly denied additional accommodations because they would require substantial

modifications of the program’s standards.


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AFFIRMED.




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