            Case: 16-11419   Date Filed: 01/09/2018   Page: 1 of 10


                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 16-11419
                        ________________________

                     D.C. No. 6:14-cv-00106-ACC-KRS


JOSEPH COONEY,

                                                             Plaintiff-Appellant,

                                   versus

BARRY SCHOOL OF LAW,
a.k.a. Dwayne O. Andreas School of Law,
                                                            Defendant-Appellee.

                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                       ________________________

                              (January 9, 2018)


Before TJOFLAT, MARTIN, and ANDERSON, Circuit Judges.
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PER CURIAM:

       Plaintiff Cooney appeals from the district court’s grant of summary

judgment in favor of Defendant, Barry Law School. The district court rejected all

of plaintiff’s claims under both the Americans with Disabilities Act (ADA) and the

Rehabilitation Act (Rehab Act) for two alternative reasons: first, that plaintiff was

not disabled; and second, even assuming plaintiff was disabled, he failed to adduce

evidence creating issues of fact that Barry’s actions violated the ADA or Rehab

Act.

           I. THE DISTRICT COURT’S HOLDING THAT PLAINTIFF
                  WAS NOT DISABLED WAS ERRONEOUS

       As an initial matter, we agree with plaintiff that the district court erred in its

holding that plaintiff was not disabled. The district court’s primary error was its

application of the law prior to the 2008 Amendments which modified the definition

of the term “disability.” In particular, the district court – in holding that plaintiff

was not disabled – relied particularly on the fact that plaintiff’s eye problem could

be mitigated by corrective surgery. See D.C. Doc. 143 at 9 (holding that

“mitigating measures must be taken into account in judging whether an individual

possess a disability” and holding that the “death knell to plaintiff’s claim of having

a disability is the extent that his impairment can be corrected.”) The 2008

Amendments expressly changed the law with respect to mitigation. See 42 U.S.C.

§12102(4)(E)(i) (“The determination of whether an impairment substantially limits
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a major life activity shall be made without regard to the ameliorative effects of

mitigating measures.”). The district court’s failure to apply the 2008 Amendments

may also have led to other errors in its holding that plaintiff was not disabled. For

example, see 42 U.S.C. §12102(4)(C) (“An impairment that limits one major life

activity need not limit other major life activities in order to be considered a

disability.”). In any event, in our resolution of this case, we assume arguendo that

plaintiff did satisfy the definition of disabled; we proceed to address plaintiff's

argument that the district court’s alternative holdings were erroneous.

           II. THE DISTRICT COURT’S ALTERNATIVE HOLDINGS

       The plaintiff mounts two primary arguments supporting his position that the

district court also erred in its alternative holdings: first, plaintiff argues that the

district court erred in rejecting his claim that Barry violated the ADA when

Professor Megale refused to grant his request for additional time to file his

appellate brief in the legal writing class; and second, plaintiff argues that the

district court erred when it rejected plaintiff’s claim of violation when Barry

refused to grant his request for extended probation and dismissed him from the

school.

       We note that we have had the benefit of oral argument and have carefully

reviewed the record and the briefs of the parties (including not only plaintiff’s pro

se brief but also the brief of his appointed attorney). We also note that we issue


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this unpublished opinion only for the benefit of the parties, and because they are

familiar with the facts, we set out only those facts necessary for an understanding

of our resolution of this case.

       A. Plaintiff’s argument that Barry violated the ADA when Professor Megale
refused to grant his request for an accommodation for an extension of time to turn
in his appellate brief in the legal writing course

      The schedule in the legal writing course for the briefs and oral argument was

clear. The briefs of all class members were to be turned in on Monday, April 4,

2011, no later than 7:00 p.m. The instructions made clear that the deadline was of

utmost importance, and severe penalties would be imposed for failure to meet the

deadline (10% reduction in the grade if 1-15 minutes late; 20% reduction if 16

minutes to 24 hours late; and a grade of zero for the assignment if 24 hours or more

late). Oral arguments were scheduled for Friday April 8, Saturday April 9, and

Sunday April 10.

      Plaintiff’s eye problem occurred on March 12, 2011. Pl’s. Dep. 139.

Thereafter, plaintiff contacted an appropriate office and made several requests to

accommodate for his eye disability, including additional time for taking

examinations, additional time to turn in his brief in his legal writing class, and use

of sunglasses during the oral argument for that class. His requested

accommodations were granted, except that those relating to the legal writing class

with respect to which plaintiff was told that he must ask his legal writing professor,


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Professor Megale. Later, when the brief was “almost due” (i.e., shortly before

April 4, 2011, at 7:00 p.m.), plaintiff first approached Professor Megale to ask her

for additional time to file his brief. Under the particular circumstances of this case

and for the following reasons, we cannot conclude that the district court erred in its

alternative holding that the Act was not violated when Professor Megale declined

to grant plaintiff’s request for additional time to turn in his brief.

       Plaintiff’s request for additional time was very belated. He approached

Professor Megale, at the earliest, 1 shortly before the deadline (i.e., shortly before

April 4, 2011), notwithstanding the fact that his eye problem occurred on March

12. Professor Megale’s immediate response was that she “couldn’t do that” …

[because] there was a certain date [for the oral argument] and she couldn’t delay

it.” Pl’s. Dep. 36. Obviously the time before the scheduled arguments was

extremely short – from April 4 at 7:00 p.m. there were less than four full days

before the first oral argument on April 8 and six days before the last argument on

April 10. And of course the student whom plaintiff would face in the oral

1
        Plaintiff’s testimony in deposition is inconsistent as to the precise timing of this first
approach to Professor Megale to ask for additional time for filing his brief. At several points in
the deposition, he expressly states that he first approached the Professor after he emailed her
seeking an accommodation for permission to wear sunglasses at oral argument, and that his
approach was an in person, oral request. That email was dated April 8, 2011, which of course
would mean that there was virtually no extended briefing deadline that would not substantially
alter the oral argument schedule. In the summary judgment posture of this case, we give plaintiff
the benefit of the doubt and deem that his request was first made when the brief was “almost
due” – i.e., shortly before the Monday April 4, 2011, deadline.



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argument would have to have at least a few days beforehand to prepare for the oral

argument, thus further reducing any remotely feasible opportunity for extending

plaintiff’s briefing deadline. Although plaintiff acknowledges that Professor

Megale’s immediate response was that she could not grant the delay because of the

fixed oral argument date, plaintiff did not suggest to the professor that only a day

or two would have been helpful. Moreover, plaintiff later testified in deposition:

“I was thinking at least a week [extension], maybe longer, maybe ten days”

would’ve been necessary. Pl’s. Dep. 66.

      Under the particular circumstances here, we conclude that no reasonable jury

could find that plaintiff’s belated request for additional time to turn in his brief was

a reasonable request for accommodation that would not cause a substantial

alteration of the legal writing program. Given the short time period between the

briefs’ due date and oral arguments, plaintiff’s belated request, and the fact that

plaintiff did not inform Professor Megale that a one day extension would be

sufficient, an accommodation would have placed an undue burden on the program.

Accordingly, with respect to this first argument of plaintiff, we cannot conclude

that the district court’s alternate holding rejecting the argument was erroneous.




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       B. Plaintiff’s argument that Barry violated the Acts by refusing to grant
plaintiff extended probation and consequently dismissing him from the school

      The district court, in its alternative holding, held that plaintiff was not

“otherwise qualified,” and thus there was no violation even if plaintiff was

disabled. Plaintiff’s appointed attorney acknowledges that the “otherwise

qualified” issue is dependent upon our resolution of the foregoing issue – i.e.

extension of time for the appellate brief. We agree that the two issues are

intertwined.

      It is undisputed that Barry’s rules provide that a student who fails to

maintain a 2.0 grade point average (GPA) should be academically dismissed from

the school. The rule provides that a student who has 1.750 to 1.990 GPA receives

only “restricted advancement” to the next semester – i.e., mandatory probation.

Although plaintiff had received a 2.0 GPA in his first semester (Fall 2010), he

received a 1.809 for the Spring 2011 semester (a cumulative GPA of 1.8789).

Because this was less than a 2.0 GPA, plaintiff was granted restricted advancement

to (i.e., placed on mandatory probation for) the next semester (Fall 2011).

However, notwithstanding that plaintiff was granted every accommodation he

requested for that Fall 2011 semester, he nevertheless achieved only a 1.883

(cumulative GPA of 1.879). The Barry rules mandated academic dismissal, unless

the Academic Standards Committee granted extended probation. The Student

Handbook provided that a student petitioning for such extended probation must
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overcome a presumption of dismissal by clear and convincing evidence that, inter

alia, the student had achieved substantial improvement in scholastic achievement

during the period of mandatory probation, and also that there is a likelihood that an

additional semester of probation will result in a cumulative GPA of 2.0 or greater.

      Plaintiff petitioned for extended probation, but the Academic Standards

Committee denied same, and consequently plaintiff was dismissed from the school

for failure to satisfy the 2.0 GPA requirement. In the district court and on appeal,

plaintiff challenges the Committee’s decision to deny extended probation and his

consequent dismissal from the school. In its alternative holding, the district court

held that plaintiff was not “otherwise qualified” and therefore rejected plaintiff’s

challenge. The plaintiff argues on appeal that, if Barry violated the law when

Professor Megale refused to grant plaintiff’s request for additional time for the

brief, then the Committee’s reliance on plaintiff’s poor grade for that Spring 2011

semester was also a violation, thus tainting the Committee’s decision. The plaintiff

also argues that there is evidence that the Committee denied extended probation in

part because of his disability – i.e., his eye problem.

      It is true that the initial draft of the Committee’s reasons for denial suggested

that the Committee believed that plaintiff, suffering as he did with the eye problem,

would not be likely to achieve a 2.0 GPA if given the opportunity of another

semester. However, because we have already held that there was no violation


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when Professor Megale declined to allow an extended briefing deadline, the

predicate underlying plaintiff’s argument falls away. The GPA figures relied upon

by the Committee were not tainted. And the initial draft of the Committee’s

rationale is a mere statement of the obvious fact that plaintiff’s GPA does in fact

indicate that there is little likelihood that an additional semester of probation would

result in plaintiff’s achieving a cumulative GPA of 2.0 or greater. In other words,

the Committee’s initial draft is a mere recognition that plaintiff was not “otherwise

qualified.” Indeed, plaintiff’s deposition testimony reveals that plaintiff purposely

avoided telling the Committee that he had requested an accommodation which was

not granted, but which he thought should have been granted. Thus, operating

under the perception that plaintiff had been afforded all the accommodations he

requested, the Committee’s belief that he could not achieve the required 2.0 GPA

with or without accommodations constitutes merely a belief that plaintiff was not

“otherwise qualified”; by itself, it is not evidence of discrimination. We cannot

conclude that the district court erred in its alternative holding rejecting plaintiff's

argument challenging the decision to deny extended probation and the consequent

dismissal from the school.




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       For the foregoing reasons, 2 the judgment of the district court is

       AFFIRMED.




2
        We have carefully considered plaintiff’s pro se brief on appeal, in addition to the brief
filed by his appointed attorney. Although it raises a few issues not raised by plaintiff’s appointed
attorney, and although we have carefully considered them, we cannot conclude that they indicate
reversal of the district court decision or that they warrant further discussion.


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