                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                   UNITED STATES COURT OF APPEALS August 25, 2015

                         FOR THE TENTH CIRCUIT         Elisabeth A. Shumaker
                     _________________________________     Clerk of Court

STEPHEN CUNNINGHAM,

      Plaintiff-Appellant,

v.                                                       No. 14-3220
                                             (D.C. No. 6:14-CV-01050-JTM-TJJ)
WICHITA STATE UNIVERSITY,                                (D. Kansas)

      Defendant-Appellee.
                  _________________________________

                         ORDER AND JUDGMENT *
                     _________________________________

Before HOLMES, MATHESON, and BACHARACH, Circuit Judges.
                _________________________________

      This action is brought by Mr. Stephen Cunningham, who attended Wichita

State University’s program for physician assistants. Mr. Cunningham was

allegedly disabled by two diseases, diabetes and attention deficit disorder, which

he disclosed to the university. The diabetes allegedly caused Mr. Cunningham to

fail examinations for pharmacology and neurology, but the university allowed him

to retake both examinations. When he did, he passed in pharmacology, but failed


*
       The parties have not requested oral argument, and the Court concludes that
oral argument would not materially aid our consideration of the appeal. See Fed. R.
App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we have decided the appeal based on
the briefs.

       Our order and judgment does not constitute binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. Fed. R. App. P.
32.1(a); 10th Cir. R. 32.1(A).
in neurology. The failing grade in neurology led the university to terminate Mr.

Cunningham from the program, and he sued under the Americans with Disabilities

Act and the Rehabilitation Act. The district court dismissed the action, and Mr.

Cunningham appeals. We affirm.

I.    The Standard of Review

      In reviewing the district court’s dismissal, we engage in de novo review.

Cohon ex rel. Bass v. N.M. Dep’t of Health, 646 F.3d 717, 724 (10th Cir. 2011).

This standard requires us to determine whether Mr. Cunningham pleaded facts

that would create a plausible basis for relief under the Americans with Disabilities

Act or the Rehabilitation Act. Id.

II.   The Legal Requirement of Accommodation

      The two statutes prohibit exclusion from specified programs based on a

disability. See id. at 725-26 (applying the same legal standard and analysis to

claims under the Americans with Disabilities Act and Rehabilitation Act);

Robertson v. Las Animas Cnty. Sheriff’s Dep’t, 500 F.3d 1185, 1193 (10th Cir.

2007) (applying the Americans with Disabilities Act). We assume for the sake of

argument that Mr. Cunningham’s diabetes and attention deficit disorder

constituted disabilities that affected his test results. If the university knew about

these disabilities and their effects on Mr. Cunningham’s test results, the

university would have had to make reasonable accommodations as long as they




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would not have fundamentally altered the nature of the program. 28 C.F.R.

§ 35.130(b)(7); Robertson, 500 F.3d at 1196, 1197 n.10.

III.   The University’s Alleged Failure to Accommodate Mr. Cunningham’s
       Attention Deficit Disorder

       In the complaint, Mr. Cunningham concedes that the university allowed

him to retake the two examinations. The second time, he passed the pharmacology

examination. But he again failed the neurology examination. He blames his

second failing grade on the location of the examination: an office located in a

busy hallway. According to Mr. Cunningham, his attention deficit disorder led

him to lose focus because of the activity in the nearby hallway.

       The problem with this claim is that the university could not accommodate a

problem it did not know about, and Mr. Cunningham concedes that he never asked

the university to make an accommodation for his attention deficit disorder. Mr.

Cunningham suggests that the need would have been obvious to the university. If

the need would have been obvious to the university, it might have had an

obligation to make an accommodation even if Mr. Cunningham had not asked. See

Robertson, 500 F.3d at 1196 (stating that an entity may learn about a disabled

person’s need for an accommodation because it is “obvious”). But the complaint

does not include any facts indicating that Mr. Cunningham’s need would have

been obvious to the university.

       In the complaint, Mr. Cunningham alleged that he


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      !      had disclosed his attention deficit disorder “on certain required
             material forms” and

      !      was required to retake the neurology exam in a professor’s private
             office in a busy hallway.

Appellant’s App. at 5-6. These factual allegations, if credited, would not suggest

an obvious need for accommodation from the university’s point of view. 1 As a

result, we conclude that Mr. Cunningham has failed to state a claim on which

relief can be granted under the Americans with Disability Act or Rehabilitation

Act. See Taylor v. Principal Fin. Grp., Inc., 93 F.3d 155, 164-65 (5th Cir. 1996)

(upholding summary judgment for the defendant on a claim under Title I of the

Americans with Disabilities Act, concluding that the plaintiff failed to present

evidence of a request for an accommodation for a disability that had not

manifested an obvious need for accommodation). In these circumstances, we

affirm the dismissal.

                                       Entered for the Court


                                       Robert E. Bacharach
                                       Circuit Judge



1
      In responding to the motion to dismiss, Mr. Cunningham stated that he is
seeking an opportunity to retake the neurology exam in the Instructional Services Lab.
Appellant’s App. at 39. There is nothing in the complaint to suggest that

      !      he asked the university for this accommodation or

      !      the need for this accommodation would have been obvious.

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