                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                     January 30, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court



 M A D IN A BU H EN D WA ,

          Plaintiff-Appellant,
                                                       No. 05-1526
 v.
                                                      (D. Colorado)
                                           (D.C. No. CIV-03-CV -485-REB-OES)
 U N IV ERSITY O F C OLO RA D O AT
 BOULDER,

          Defendant-Appellee.




                          ORDER AND JUDGMENT *


Before KELLY, A LA RC ÓN, ** and LUCERO , Circuit Judges.




      M adina Buhendwa appeals from the order dismissing her claims of

discrimination, asserted under Section 504 of the Rehabilitation Act of 1973, 29

U.S.C. § 791 et seq. (“Rehabilitation Act”), and Title VI of the Civil Rights Act

of 1964 (“Title VI”) against the University of Colorado at Boulder (the


      *
             This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec.
1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).
      **
             The Honorable Arthur L. Alarcón, Senior Circuit Judge, United
States Court of Appeals, Ninth Circuit, sitting by designation.
“University”). She contends that the District Court erred in concluding that (1)

she is not disabled under the Rehabilitation Act and was not discriminated against

solely on the basis of her disability; and (2) she was not subjected to

discrimination or denied benefits provided under Title VI because of her race.

W e affirm because we conclude that she has failed to demonstrate that she was

subjected to discrimination based solely on her alleged disability or that she was

denied benefits under Title VI because of her race.

                                           I

         At the time of the events giving rise to this lawsuit, M s. Buhendwa was a

student at the University of Colorado at Boulder. She is a native of the nation of

Zaire and of African ethnicity, but is now a lawful permanent resident of the

United States. Her native language is Sw ahili. She also speaks M ashi, Lingala,

French, and English. M s. Buhendwa began taking classes at the University in the

early 1990s. She eventually pursued pre-medical school studies with a triple

major in kinesiology, classics, and psychology.

         During her academic career, M s. Buhendwa attempted to pass calculus five

separate times. Her first four attempts resulted in course withdrawal or a failing

grade.

                                           A

         In the spring semester of 2001, M s. Buhendwa enrolled in a calculus class

taught by Professor Stanislaw Swierczkow ski. W hile enrolled in this class, M s.

                                          -2-
Buhendwa visited the Student Academic Services Center. She met with Daniel

W est, the U niversity’s English as a Second Language Program Coordinator. M s.

B uhendw a complained to M r. West that she experienced test-taking anxiety. At

her request, M r. W est addressed a letter to Professor Noel Lenski. It reads as

follows:

             M adina Buhendwa recently visited the Student
             Academic Services Center (SASC) for help with certain
             academic issues, one being test anxiety. Upon your
             approval this letter provides support for M adina to
             receive additional time for your course exams. Through
             discussion with M adina, she describes a common test
             anxiety for student’s [sic] whose native language is not
             English. Her second language proficiency does not
             allow her to process reading and writing in English as
             efficiently as native English language speakers.
             Extended testing time can improve M adina’s exam
             performance on a more equal level with native English
             speakers.

             Please note that test anxiety is not a recognized disorder
             within the ADA. Nonetheless, it is a legitimate learning
             challenge for countless students on the Boulder campus,
             and for those who are non-native speakers of English
             this challenge is exponential. Unfortunately, budget
             constraints prevent the SASC from offering assistance in
             this area beyond helping students identify the problem
             and supporting strategies for help. As M adina’s
             professor, you could provide assistance within the
             testing environment. Additional time and, when
             possible, alternative testing space have proved helpful
             for other students with similar difficulties. If you elect
             to provide M adina additional time, we suggest 30
             additional minutes for an hour exam and 45 additional
             minutes for a 75 minute exam.




                                         -3-
Before the District Court, the University noted that M r. W est’s letter was

addressed to Professor Lenski, not Professor Swierczkowski, and argued that it

was unauthenticated. However, before this Court, the University does not dispute

that Professor Swierczkowski had knowledge of M r. W est’s suggestion.

      During the semester in which she was enrolled in Professor

Sw ierczkowski’s class, M s. Buhendwa did not consult the University’s Office of

Disability Services to seek a determination on whether she was disabled. That

office evaluates student disabilities and requests for accommodations under the

Rehabilitation Act and the Americans with Disabilities Act of 1990, 42 U.S.C. §

12101 et seq. Although M s. Buhendwa claims that she injured her back and took

pain medications while she w as a member of Professor Swierczkow ski’s class,

she testified in her deposition that she did not inform Professor Sw ierczkowski of

the symptoms caused by taking her medication.

      Students in Professor Swierczkowski’s calculus course were required to

take four examinations. Pursuant to M r. W est’s suggestion, Professor

Swierczkow ski agreed to grant M s. Buhendwa additional time to complete these

examinations.

      M s. Buhendwa fell asleep before completing her final examination. W hen

Professor Sw ierczkowski discovered that she was asleep, he declined to allow her

extra time to complete the examination. She received a 58.5% on the final

examination.

                                          -4-
                                         B

      Professor Sw ierczkowski’s course also included ten quizzes. In her

deposition, M s. Buhendwa testified that she had informed Professor

Swierczkowski that throughout the semester she would have to miss some of his

quizzes because she would “need to be at work.” She further testified that

Professor Sw ierczkowski originally agreed to ignore her missed quizzes when

calculating her final grade. After she fell asleep during the final examination,

however, he changed his mind and gave her a zero score on each of her missed

quizzes. M s. Buhendwa alleges in her affidavit that,

             [u]p until the time I fell asleep during the final exam,
             Professor Sw ierczkowski had been abiding by our
             agreement and calculating my [quiz] grade on the work I
             performed. After I fell asleep during the final exam, he
             unilaterally and arbitrarily changed the method he used
             to calculate my grade and instead calculated my grade
             based upon the total number of quizzes given.

      M s. Buhendwa testified in her deposition that she heard Professor

Swierczkowski tell an unnamed blond student that she could take a quiz in his

office, and she saw another unnamed blond student taking an examination or quiz

in his office. She also testified that she heard Professor Sw ierczkowski tell one

of these blond students that he would calculate her grade without considering the

fact that she missed a quiz.

      Despite the fact that M s. Buhendwa never scored higher than 65% on any

of her examinations and missed more than half the quizzes, Professor

                                         -5-
Swierczkowski gave her a passing grade of “C-.” M s. Buhendwa had an overall

grade point average (“GPA ”) of 1.98 at the end of the spring semester. She

asserts in her brief that because she did not maintain a 2.0 or greater GPA , she

was denied financial aid for the fall semester.

                                          II

      This Court review s a grant of summary judgment de novo. M cGuinness v.

University of New M exico School of M edicine, 170 F.3d 974, 977 (10th Cir.

1998). Summary judgment is appropriate w hen there is “no genuine issue as to

any material fact and [] the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c). “There is no genuine issue of material fact unless

the evidence, construed in the light most favorable to the non-moving party, is

such that a reasonable jury could return a verdict for the non-moving party.”

Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).

      To establish a genuine issue of material fact, a plaintiff must “go beyond

the pleadings and designate specific facts so as to make a showing sufficient to

establish the existence of an element essential to that party’s case[.]” Sealock v.

Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). “Unsubstantiated allegations

carry no probative weight in summary judgment proceedings.” Self v. Crum, 439

F.3d 1227, 1230 (10th Cir. 2006) (internal quotation marks omitted) (quoting

Phillips v. Calhoun, 956 F.2d 949, 951 n.3 (10th Cir. 1992)).

                                         III

                                         -6-
                                          A

      M s. Buhendwa argues that the District Court erred when it granted

summary judgment in favor of the University on her Rehabilitation Act claim.

She contends that the District Court erred in concluding that her test-taking

anxiety did not qualify as a disability and that she w as not discriminated against

based on her alleged disability. W e note, however, that the District Court made

no ruling regarding whether M s. Buhendwa is disabled under the Rehabilitation

Act. The District Court stated in the adopted Report and Recommendation that

“[f]or purposes of the M otion for Summary Judgment, the University does not

dispute that plaintiff is disabled[.]” W e need not determine in this appeal whether

test-taking anxiety is a mental or physical impairment because M s. Buhendwa has

conceded that she was not allowed additional time to complete her final

examination because she fell asleep during the time allotted for the examination.

      To establish a cause of action under the Rehabilitation Act, a plaintiff must

show “(1) that he [or she] is a handicapped individual under the Act, (2) that he

[or she] is otherwise qualified for the [benefit] sought, (3) that he [or she] was

[discriminated against] solely by reason of his [or her] handicap, and (4) that the

program or activity in question receives federal financial assistance.” Johnson by

Johnson v. Thom pson, 971 F.2d 1487, 1492 (10th Cir. 1992) (internal quotation

marks omitted) (alterations added and in original). M s. Buhendwa bases her




                                         -7-
Rehabilitation Act claim against the University as a student at the University,

which receives federal funding.

      M s. Buhendwa focuses much of her argument on the first element of her

claim, regarding whether she is “a handicapped individual under the Act.”

However, M s. Buhendwa has failed to demonstrate that she was discriminated

against solely by reason of her alleged handicap – the third essential element of

her claim.

      M s. Buhendwa testified in her deposition that Professor Sw ierczkowski

granted her extra time to complete all of her examinations, except for the final

examination. She testified that he did not allow her extra time on the final

examination because he discovered that she had fallen asleep. The alleged

discrimination she experienced was not based on language-induced test-taking

anxiety, but was instead caused by the fact that she fell asleep during the

examination. Thus, summary judgment was appropriate on this claim.

                                         B

      M s. Buhendwa also challenges the dismissal of her Title VI claim against

the University. She asserts that she established a prim a facie case of

discrimination by showing that two “blond” students were given an opportunity,

not afforded to her, to take quizzes and examinations in Professor

Sw ierczkowski’s office, and that one of the students was told by Professor

Swierczkowski that, in calculating her grade, he would ignore her missed quizzes.

                                         -8-
      Title VI of the Civil Rights Act of 1964 provides, in pertinent part “that no

person shall, ‘on the ground of race, color, or national origin, be excluded from

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

any program or activity’ covered by Title VI.” Alexander v. Sandoval, 532 U.S.

275, 278 (2001). “[P]rivate individuals may sue to enforce § 601 of Title VI and

obtain both injunctive relief and damages.” Id. at 279.

      A Title VI claim is analyzed using the burden-shifting analysis outlined in

Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981).

Bryant v. Indep. Sch. D ist. N o. I-38 of Garvin County, OK, 334 F.3d 928, 929-30

(10th Cir. 2003).

             First, the plaintiff has the burden of proving by the
             preponderance of the evidence a prima facie case of
             discrimination. Second, if the plaintiff succeeds in
             proving the prima facie case, the burden shifts to the
             defendant to articulate some legitimate,
             nondiscriminatory reason for [the discharge]. Third,
             should the defendant carry this burden, the plaintiff must
             then have an opportunity to prove by a preponderance of
             the evidence that the legitimate reasons offered by the
             defendant were not its true reasons, but were a pretext
             for discrimination. . . . The ultimate burden of
             persuading the trier of fact that the defendant
             intentionally discriminated against the plaintiff remains
             at all times with the plaintiff.

Id. at 930 (quoting Burdine, 450 U.S. at 252-53).

      In the context of employment discrimination cases, a prim a facie claim of

disparate treatment is established w hen a plaintiff shows: (1) that he or she is a



                                          -9-
member of a protected class; (2) that he or she was disciplined; and (3) that

similarly situated comparators were treated differently for the same or similar

conduct. M acKenzie v. City & County of Denver, 414 F.3d 1266, 1277 (10th Cir.

2005). “Individuals are considered ‘similarly-situated’ when they (1) have dealt

with the same supervisor; (2) were subjected to the same w ork standards; and (3)

had engaged in the same conduct without such differentiating or mitigating

circumstances that would distinguish their conduct or the employer's treatment of

them for it.” Id.

      M s. Buhendwa contends that, as a person of African ethnicity, she was

treated differently for the same conduct as were her similarly situated

comparators who were blond. She testified in her deposition that,

               [t]he blond girl was – when she did not do her – her
               quizzes, Professor Sw ierczkowski told her that she can
               do – she could come to the office to do it. And the day I
               was in his office, the gentleman who was sitting in his
               office was taking the exam, was also white, was a blond,
               young male, was taking – And he had told me that he
               would do that, he would at least – he would calculate my
               quiz based on the grade, based on the quiz that I have
               done. Then after I fall asleep, he gave me the zero.

M s. Buhendwa testified that she was never offered the opportunity to take quizzes

in Professor Sw ierczkowski’s office, and, despite stating his intention to do

otherwise, he counted all of her missed quizzes as zeros when calculating her

final grade.




                                          -10-
      M s. Buhendwa cites Bryant in support of her argument that such statements

sufficiently establish a prima facie case of discrimination. In Bryant, this Court

acknowledged that the black-student plaintiffs had set forth a prim a facie case of

discrimination when “[t]hey alleged that they were suspended after the February

8, 2000, fight while Caucasian students who participated in the fight were not

suspended.” 334 F.3d at 930. Thus, M s. Buhendwa maintains that her deposition

testimony regarding the unnamed “blond” students satisfies the prim a facie case

requirements articulated in Bryant. Her reliance on Bryant is misplaced.

      Unlike the circumstances in Bryant, M s. Buhendwa has failed to

demonstrate that she was treated differently from the “blond” students for the

same conduct. First, she testified that Professor Sw ierczkowski’s sanction of

scoring her missed quizzes as zeros was based upon the fact that she fell asleep

during the final examination. In her deposition, M s. Buhendwa stated that

“[Professor Sw ierczkowski] had told me that. . .he would calculate my quiz based

on the grade, based on the quiz that I have done. Then after I fall asleep, he gave

me the zero.” M s. Buhendwa has presented no evidence that the “blond” students

fell asleep during an examination and received no sanction, or whether Professor

Swierczkowski ultimately calculated a “blond” student’s grade differently.

      Second, M s. Buhendwa has presented no evidence that the “blond” students

missed any quizzes, or that a “blond” male student was, in fact, making up a

missed quiz in Professor Swierczkowski’s office. She has also failed to

                                        -11-
demonstrate the circumstances that motivated Professor Swierczkowski to offer a

“blond” female student the opportunity to take a quiz in his office.

      Accordingly we conclude that the District Court did not err in granting

summary judgment on each of M s. Buhendwa’s claims.

      A FFIR ME D.



                                               Entered for the court



                                               Arthur L. Alarcón
                                               Senior Circuit Judge




                                        -12-
