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USCA1 Opinion
October 6, 1992
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No. 92-1437
STEVEN WYNNE,
Plaintiff, Appellant,
v.
TUFTS UNIVERSITY SCHOOL OF MEDICINE,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Torruella and Selya, Circuit Judges.
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Robert LeRoux Hernandez, with whom Ellis & Ellis was on
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brief, for appellant.
Alan D. Rose, with whom Nutter, McClennen & Fish was on
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brief, for appellee.
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SELYA, Circuit Judge. This appeal requires us to
SELYA, Circuit Judge.
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revisit a longstanding dispute between Tufts University School of
Medicine and Steven Wynne, a former student. On a previous
occasion, we vacated the district court's entry of summary
judgment in Tufts' favor. See Wynne v. Tufts Univ. School of
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Medicine, 932 F.2d 19 (1st Cir. 1991) (en banc). After further
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proceedings, the district court again entered summary judgment
for the defendant. This time around, on an augmented record, we
affirm.
Background
Background
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The facts pertinent to Wynne's banishment from the
groves of academe are chronicled in our earlier opinion and need
not be fully rehearsed. A succinct summary suffices.
Wynne matriculated at Tufts in 1983. He failed eight
of fifteen first-year courses. Although academic guidelines
provided for dismissal after five course failures, the dean
granted Wynne a special dispensation and allowed him to repeat
the first year of medical school. Over the summer of 1984, Wynne
underwent neuropsychological testing at Tufts' instance and
expense. The results, described in detail in our earlier
opinion, id. at 21, showed cognitive deficits and weaknesses in
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processing discrete units of information. However, no
differential diagnosis of dyslexia or any other particularized
learning disability was made at this time.
During Wynne's second tour of the first-year
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curriculum, Tufts arranged to supply him with tutors,
counsellors, note-takers, and other aids. This time, he passed
all but two courses: pharmacology and biochemistry. Tufts still
did not expel Wynne. Instead, it permitted him to take make-up
examinations in these two subjects. He passed pharmacology but
failed biochemistry. That ended the matter. Wynne was dismissed
in September, 1985.
Prior Proceedings
Prior Proceedings
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In his court case, Wynne alleged that he was learning-
disabled and that Tufts had discriminated against him on the
basis of his handicap. In short order, Wynne refined his claim
to allege that his disability placed him at an unfair
disadvantage in taking written multiple-choice examinations and
that Tufts, for no good reason, had stubbornly refused to test
his proficiency in biochemistry by some other means. Eventually,
the district court granted summary judgment in Tufts' favor on
the ground that Wynne, because of his inability to pass
biochemistry, was not an "otherwise qualified" handicapped person
within the meaning of section 504 of the Rehabilitation Act of
1973, 29 U.S.C. 794 (1988), as explicated by the relevant
caselaw.
On appeal, a panel of this court reversed. That
opinion was withdrawn, however, and the full court reheard
Wynne's appeal. We concluded that, in determining whether an
aspiring medical student meets section 504's "otherwise
qualified" prong, it is necessary to take into account the extent
3
to which reasonable accommodations that will satisfy the
legitimate interests of both the school and the student are (or
are not) available and, if such accommodations exist, the extent
to which the institution explored those alternatives. See Wynne,
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932 F.2d at 24-26 (citing, inter alia, School Bd. of Nassau
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County v. Arline, 480 U.S. 273 (1987)). Recognizing the unique
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considerations that come into play when the parties to a
Rehabilitation Act case are a student and an academic
institution, particularly a medical school training apprentice
physicians, we formulated a test for determining whether the
academic institution adequately explored the availability of
reasonable accommodations:
If the institution submits undisputed facts
demonstrating that the relevant officials
within the institution considered alternative
means, their feasibility, cost and effect on
the academic program, and came to a
rationally justifiable conclusion that the
available alternatives would result either in
lowering academic standards or requiring
substantial program alteration, the court
could rule as a matter of law that the
institution had met its duty of seeking
reasonable accommodation. In most cases, we
believe that, as in the qualified immunity
context, the issue of whether the facts
alleged by a university support its claim
that it has met its duty of reasonable
accommodation will be a purely legal one.
Only if essential facts were genuinely
disputed or if there were significantly
probative evidence of bad faith or pretext
would further fact finding be necessary.
Id. at 26 (citation and internal quotation marks omitted).
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Because the summary judgment record did not satisfactorily
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address this issue,1 we vacated the judgment and remanded for
further proceedings, leaving the district court "free to consider
other submissions [and] to enter summary judgment thereon if [an
expanded record] meet[s] the standard we have set forth." Id. at
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28.
Following remand, Tufts filed a renewed motion for
summary judgment accompanied by six new affidavits. The
plaintiff filed a comprehensive opposition supported, inter alia,
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by his own supplemental affidavit. The court below read the
briefs, heard oral argument, reviewed the parties' updated
submissions, and determined that Tufts had met its burden under
Wynne. In the lower court's view, the expanded record clearly
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showed that Tufts had evaluated the available alternatives to its
current testing format and had reasonably concluded that it was
not practicable in this instance to depart from the standard
multiple-choice format. Accordingly, the court again entered
summary judgment in Tufts' favor. This appeal ensued.
Issues
Issues
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The principal issue on appeal is whether, given those
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1Tufts had filed only a single affidavit touching upon this
issue. Scrutiny of that affidavit, signed by the dean, revealed
the following shortcomings: "There is no mention [in the dean's
affidavit] of any consideration of possible alternatives, nor
reference to any discussion of the unique qualities of multiple
choice examinations. There is no indication of who took part in
the decision [not to deviate from multiple choice examinations]
or when it was made." Wynne, 932 F.2d at 28. Because we thought
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that a party seeking summary judgment should proffer more than
"the simple conclusory averment of the head of an institution,"
we declined to accept the dean's affidavit as a sufficient basis
for shortstopping the litigation. Id.
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facts not genuinely in dispute, Tufts can be said, as a matter of
law, either to have provided reasonable accommodations for
plaintiff's handicapping condition2 or to have demonstrated that
it reached a rationally justifiable conclusion that accommodating
plaintiff would lower academic standards or otherwise unduly
affect its program. There is also a secondary issue: whether
plaintiff has advanced significantly probative evidence
sufficient to ground a finding that Tufts' reasons for not making
further accommodations were pretextual or asserted in bad faith.
Standard of Review
Standard of Review
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Summary judgment has a special place in civil
litigation. The device "has proven its usefulness as a means of
avoiding full-dress trials in unwinnable cases, thereby freeing
courts to utilize scarce judicial resources in more beneficial
ways." Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.
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1991), cert. denied, 112 S. Ct. 2965 (1992). In operation,
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summary judgment's role is to pierce the boilerplate of the
pleadings and assay the parties' proof in order to determine
whether trial is actually required. See id.; see also Garside v.
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Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990). Since
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appellate review of an order granting summary judgment is
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2There is a lingering question as to whether Wynne's
disability is such that he should be deemed "an individual with
handicaps" within the purview of 29 U.S.C. 794. Since the
court below resolved the case against Wynne on summary judgment,
we must take the facts and the reasonable inferences from them in
the light most congenial to his cause. Thus, we assume, as the
district court apparently assumed sub silentio, that Wynne
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suffers from a recognizable handicap.
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plenary, the court of appeals, like the trial court, "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
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(1st Cir. 1990).
We uphold a grant of summary judgment if "the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, 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."
Fed. R. Civ. P. 56(c). When, as here, the movant-defendant has
suggested that competent evidence to prove the case is lacking,
the burden devolves upon the nonmovant-plaintiff to "document
some factual disagreement sufficient to deflect brevis
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disposition." Mesnick, 950 F.2d at 822.
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This burden is discharged only if the cited
disagreement relates to a genuine issue of material fact. See
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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
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"In this context, 'genuine' means that the evidence about the
fact is such that a reasonable jury could resolve the point in
favor of the nonmoving party [and] 'material' means that the fact
is one that might affect the outcome of the suit under the
governing law." United States v. One Parcel of Real Property,
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Etc. (Great Harbor Neck, New Shoreham, R.I.), 960 F.2d 200, 204
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(1st Cir. 1992) (citing Anderson, 477 U.S. at 248; internal
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quotation marks omitted). This requirement has sharp teeth: the
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plaintiff "must present definite, competent evidence to rebut the
motion." Mesnick, 950 F.2d at 822. Such evidence "cannot be
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conjectural or problematic; it must have substance in the sense
that it limns differing versions of the truth which a factfinder
must resolve at an ensuing trial." Mack v. Great Atl. & Pac. Tea
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Co., 871 F.2d 179, 181 (1st Cir. 1989). As the Court has
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cautioned, evidence that "is merely colorable or is not
significantly probative" cannot deter summary judgment.
Anderson, 477 U.S. at 249-50 (citations omitted).
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Discussion
Discussion
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We have carefully reviewed the amplitudinous record and
are fully satisfied that the district court did not err in
granting summary judgment. Fairly read, the record presents no
genuine issue as to any material fact. Because this case has
consumed so many hours of judicial time, we resist the temptation
to wax longiloquent. Instead, we add only a few decurtate
observations embellishing what the en banc court previously wrote
and remarking the significance of the new materials adduced
below.
First: Following remand, Tufts satisfactorily filled
First:
the gaps that wrecked its initial effort at summary judgment.
The expanded record contains undisputed facts demonstrating, in
considerable detail, that Tufts' hierarchy "considered
alternative means" and "came to a rationally justifiable
conclusion" regarding the adverse effects of such putative
accommodations. Wynne, 932 F.2d at 26. Tufts not only
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documented the importance of biochemistry in a medical school
curriculum, but explained why, in the departmental chair's words,
"the multiple choice format provides the fairest way to test the
students' mastery of the subject matter of biochemistry." Tufts
likewise explained what thought it had given to different methods
of testing proficiency in biochemistry and why it eschewed
alternatives to multiple-choice testing, particularly with
respect to make-up examinations. In so doing, Tufts elaborated
upon the unique qualities of multiple-choice examinations as they
apply to biochemistry and offered an exposition of the historical
record to show the background against which such tests were
administered to Wynne. In short, Tufts demythologized the
institutional thought processes leading to its determination that
it could not deviate from its wonted format to accommodate
Wynne's professed disability. It concluded that to do so would
require substantial program alterations, result in lowering
academic standards, and devalue Tufts' end product highly
trained physicians carrying the prized credential of a Tufts
degree.
To be sure, Tufts' explanations, though plausible, are
not necessarily ironclad. For instance, Wynne has offered
evidence that at least one other medical school and a national
testing service occasionally allow oral renderings of multiple-
choice examinations in respect to dyslexic students. But, the
point is not whether a medical school is "right" or "wrong" in
making program-related decisions. Such absolutes rarely apply in
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the context of subjective decisionmaking, particularly in a
scholastic setting. The point is that Tufts, after undertaking a
diligent assessment of the available options, felt itself obliged
to make "a professional, academic judgment that [a] reasonable
accommodation [was] simply not available." Wynne, 932 F.2d at
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27-28. Phrased another way, Tufts decided, rationally if not
inevitably, that no further accommodation could be made without
imposing an undue (and injurious) hardship on the academic
program. With the diligence of its assessment and the
justification for its judgment clearly shown in the augmented
record, and with the fact of the judgment uncontroverted, the
deficiency that spoiled Tufts' original effort at brevis
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disposition has been cured.
Second: The undisputed facts show that Tufts neither
Second:
ignored Wynne nor turned a deaf ear to his plight. To the
contrary, the defendant (a) warned Wynne in 1983 that he was
failing biochemistry and suggested he defer his examination (a
suggestion that Wynne scotched); (b) arranged for a complete
battery of neuropsychological tests after Wynne failed eight
courses in his freshman year; (c) waived the rules and permitted
Wynne to repeat the first-year curriculum; (d) furnished Wynne
access to tutoring, taped lectures, and the like; (e) allowed him
to take untimed examinations; and (f) gave him make-up
examinations in pharmacology and biochemistry after he again
failed both courses. Given the other circumstances extant in
this case, we do not think that a reasonable factfinder could
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conclude that Tufts, having volunteered such an array of remedial
measures, was guilty of failing to make a reasonable
accommodation merely because it did not also offer Wynne,
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unsolicited, an oral rendering of the biochemistry examination.
Third: Reasonableness is not a constant. To the
Third:
contrary, what is reasonable in a particular situation may not be
reasonable in a different situation even if the situational
differences are relatively slight. Cf., e.g., United States v.
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Rodriguez-Morales, 929 F.2d 780, 785 (1st Cir. 1991) (concluding
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that "reasonableness has a protean quality"), cert. denied, 112
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S. Ct. 868 (1992); Sierra Club v. Secretary of the Army, 820 F.2d
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513, 517 (1st Cir. 1987) (paraphrasing Emerson and observing that
"reasonableness 'is a mutable cloud, which is always and never
the same.'"). Ultimately, what is reasonable depends on a
variable mix of factors.
In the section 504 milieu, an academic institution can
be expected to respond only to what it knows (or is chargeable
with knowing). This means, as the Third Circuit has recently
observed, that for a medical school "to be liable under the
Rehabilitation Act, [it] must know or be reasonably expected to
know of [a student's] handicap." Nathanson v. Medical College of
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Pa., 926 F.2d 1368, 1381 (3d Cir. 1991). A relevant aspect of
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this inquiry is whether the student ever put the medical school
on notice of his handicap by making "a sufficiently direct and
specific request for special accommodations." Id. at 1386.
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Thus, we must view the reasonableness of Tufts' accommodations
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against the backdrop of what Tufts knew about Wynne's needs while
he was enrolled there.
Several factors are entitled to weight in this
equation, including the following: (a) Wynne was never diagnosed
as dyslexic while enrolled at Tufts; (b) the school gave him a
number of special dispensations and "second chances" including
virtually every accommodation that he seasonably suggested; (c)
Wynne had taken, and passed, multiple-choice examinations in
several courses; and (d) he never requested, at any time prior to
taking and failing the third biochemistry exam, that an oral
rendering be substituted for the standard version of the
multiple-choice test.3 Under these circumstances, we do not
believe a rational factfinder could conclude that Tufts' efforts
at accommodation fell short of the reasonableness standard.
Fourth: Wynne's allegations of pretext do not raise
Fourth:
prohibitory doubts about the reasonableness of Tufts' attempted
accommodations or about the honesty of its assessment of
alternatives to multiple-choice examinations vis-a-vis the
school's educational plan. When pretext is at issue in a
discrimination case, it is a plaintiff's duty to produce specific
facts which, reasonably viewed, tend logically to undercut the
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3In his appellate brief, Wynne excoriates Tufts for its
failure to provide him "with the one simple accommodation he has
asked for and believes would make a difference: that the
multiple choice examination in biochemistry be administered to
him orally on an untimed basis with the assistance of a trained
reader." Wynne neglects to mention, however, that he never
sought this type of accommodation until after Tufts sent him
packing and adversary proceedings were underway.
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defendant's position. See, e.g., Villanueva v. Wellesley
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College, 930 F.2d 124, 127 (1st Cir.), cert. denied, 112 St. Ct.
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181 (1991); Mack, 871 F.2d at 181. The plaintiff may neither
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"rest[] merely upon conclusory allegations, improbable
inferences, and unsupported speculation," Medina-Munoz v. R.J.
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Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990), nor
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measurably bolster his cause by hurling rancorous epithets and
espousing tenuous insinuations. See Mesnick, 950 F.2d at 826;
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Yerardi's Moody St. Restaurant & Lounge, Inc. v. Board of
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Selectmen, 932 F.2d 89, 92 (1st Cir. 1991).
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Here, Wynne's charges comprise more cry than wool.
They consist of unsubstantiated conclusions, backed only by a few
uncoordinated evidentiary fragments. More is required to
forestall summary judgment. See Wynne, 932 F.2d at 26.
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Conclusion
Conclusion
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We need go no further. In our earlier opinion, we
recognized the existence of a statutory obligation on the part of
an academic institution such as Tufts to consider available ways
of accommodating a handicapped student and, when seeking summary
judgment, to produce a factual record documenting its scrupulous
attention to this obligation. Id. at 25-26. Of course, the
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effort requires more than lip service; it must be sincerely
conceived and conscientiously implemented. We think that Tufts,
the second time around, has cleared the hurdle that we
envisioned: the undisputed facts contained in the expanded
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record, when considered in the deferential light that academic
decisionmaking deserves, id. at 25, meet the required standard.
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We add a final note of caution. Although both parties
to this litigation invite us to paint with a broad brush, we
decline their joint invitation. The issue before us is not
whether a medical student, authoritatively diagnosed as a
dyslexic and known to the school to be so afflicted, is ever
entitled, upon timely request, to an opportunity to take an
examination orally. Rather, we are limited to the idiosyncratic
facts of Wynne's case. The resulting record presents a narrower,
easier issue and we believe that the district court resolved
that issue correctly.
Affirmed.
Affirmed.
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Document Info
Docket Number： 92-1437
Filed Date： 10/6/1992
Precedential Status： Precedential
Modified Date： 3/3/2016