Borwick v. Univ of Denver, Bd of Trustees , 569 F. App'x 602 ( 2014 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 24, 2014
Elisabeth A. Shumaker
Clerk of Court
CAROLYN JEAN GISSENDANNER
BORWICK,
Plaintiff-Appellant,
No. 13-1149
v. (D.C. No. 1:11-CV-01216-MSK-KMT)
(D. Colo.)
UNIVERSITY OF DENVER, BOARD
OF TRUSTEES; UNIVERSITY OF
DENVER GRADUATE SCHOOL OF
SOCIAL WORK; ROBERT COOMBE,
Chancellor, in his official capacity;
GREG KVISTAD, individually and as
Denver University Provost; DR. JAMES
R. MORAN, PhD, individually and as
Professor and Director of the Doctoral
Program of the Graduate School of Social
Work; BARBARA WILCOTS, officially
as Associate Provost for Graduate
Studies; DR. WALTER LAMENDOLA,
PhD, officially as Professor and Director
of the Doctoral Program of the Graduate
School of Social Work; DEAN JAMES
HERBERT WILLIAMS, officially as
Dean of the Graduate School of Social
Work; DR. WILLIAM CLOUD,
officially as Professor of the Graduate
School of Social Work,
Defendants-Appellees.
ORDER AND JUDGMENT*
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
(continued)
Before LUCERO and McKAY, Circuit Judges, and BRORBY, Senior Circuit Judge.
Ms. Borwick, appearing in this court pro se, appeals from the district court’s
order granting summary judgment in favor of defendants on her claims for
discrimination, retaliation, and breach of contract. We have jurisdiction under
28 U.S.C. § 1291 and affirm.
I. Background
Ms. Borwick, an older African-American woman, enrolled in the Social Work
Ph.D. program at the University of Denver in 2000. Under University rules, the
program had to be completed within seven years, and Ms. Borwick was originally
scheduled to complete her degree by June 2007. In April 2001, however, she
suffered serious injuries in an automobile accident. She subsequently completed the
coursework for her program, but not her dissertation. After being granted three
one-year extensions of time, she was terminated from the program on June 4, 2010.
In May 2011, Ms. Borwick, through counsel, filed the underlying lawsuit
alleging that University officials violated her rights by failing to accommodate her
disabilities resulting from the 2001 automobile accident. In her second amended
ordered submitted without oral argument. 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 and 10th Cir. R. 32.1.
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complaint, she asserted federal claims for discrimination and retaliation under Title I
of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112, Title III of the
ADA, id., §§ 12181-12189, § 504 of the Rehabilitation Act, 29 U.S.C. §§ 701, 794,
and 42 U.S.C. § 1983, and asserted state-law claims for breach of contract and breach
of implied contract. She alleged that she chose not to request a medical stop-out
from her Ph.D. program, even though that option would have tolled the time in which
she was required to complete her degree. See R. Vol. 1, at 136.
Defendants filed a motion for summary judgment, which Ms. Borwick
opposed, but the district court granted summary judgment in favor of defendants.
Relevant to this appeal, the court adopted defendants’ assumption that Ms. Borwick
was disabled, but held that she failed to present evidence disputing the University’s
determination that she had not made satisfactory progress toward completing her
dissertation, and she was therefore not “otherwise qualified academically” for the
Ph.D. program under federal law. Id. Vol. 4, at 341-42 (internal quotation marks
omitted). The court further held that it was undisputed that Ms. Borwick’s desire for
more time beyond early June 2010 in which to complete her dissertation was based
on her adoptive mother’s health problems, rather than her own disability. Id.
at 344-45. The court further determined that Ms. Borwick failed to present any
evidence showing that the University made any enforceable promises to support her
contract claims. Id. at 345-47.
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The court also denied Ms. Borwick’s subsequent motion to alter or amend the
judgment based on a letter dated June 3, 2010, that requested readmission to the
Ph.D. program and a fourth extension of time in which to complete her dissertation.
The court concluded that it was immaterial whether she requested the fourth
extension of time on June 3, the date on the letter, see id., Vol. 3, at 60-62, or on
June 21 (after her termination), as she testified at her deposition, see id., Vol. 2,
at 166-67. The court reasoned that it was undisputed that Ms. Borwick did not
request a fourth extension of time until after she knew that she was going to be
terminated from the program and that the University had decided that she was not
making adequate progress toward completing her degree.
II. Issues on Appeal and Discussion
Ms. Borwick’s former counsel filed her notice of appeal and was then allowed
by this court to withdraw from the case. Because Ms. Borwick appears in this court
pro se, we construe her pleadings liberally. See Hall v. Bellmon, 935 F.2d 1106,
1110 & n.3 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)
(per curiam)). It is settled law, however, that “a pro se litigant . . . must follow the
same rules of procedure that govern other litigants.” Green v. Dorrell, 969 F.2d 915,
917 (10th Cir. 1992). “Thus, although we make some allowances for the pro se
plaintiff’s failure to cite proper legal authority, h[er] confusion of various legal
theories, h[er] poor syntax and sentence construction, or h[er] unfamiliarity with
pleading requirements, the court cannot take on the responsibility of serving as the
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litigant’s attorney in constructing arguments and searching the record.” Garrett v.
Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (brackets
omitted) (citation omitted) (internal quotation marks omitted).
“We review a district court’s grant of summary judgment de novo, using the
same standard applied by the district court pursuant to Fed. R. Civ. P. 56(a).”
Cillo v. City of Greenwood Village, 739 F.3d 451, 461 (10th Cir. 2013). Summary
judgment must be granted if “there is no genuine dispute as to any material fact” and
the moving party is “entitled to judgment as a matter of law.” Rule 56(a). “We must
view facts in the light most favorable to the non-moving part[y], . . ., resolving all
factual disputes and reasonable inferences in [her] favor.” Cillo, 739 F.3d at 461
(internal quotation marks omitted).
Ms. Borwick raises two main arguments on appeal: (1) the district court
incorrectly applied the ADA to her claims that defendants failed to provide
reasonable accommodations for her disability, instead of applying the more recent
ADA Amendments Act of 2008 (ADAAA), which increased the responsibilities of
entities such as the University of Denver toward disabled individuals; and (2) the
district court erred in granting summary judgment to defendants on her contract
claims because a contract existed under the 2000-2001 Ph.D. Program Handbook.
Through the ADAAA, Congress “broadened the definition of ‘disability,’”
Summers v. Altarum Inst., Corp., 740 F.3d 325, 329 (4th Cir. 2014), thereby
broadening that term’s “coverage,” Neely v. PSEG Tex., Ltd. P’ship, 735 F.3d 242,
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245 (5th Cir. 2013), so that “the definition of disability under the ADA would be
interpreted consistently with how courts had applied the definition of a handicapped
individual under the Rehabilitation Act of 1973,” Rohr v. Salt River Project Agric.
Improvement & Power Dist., 555 F.3d 850, 861 (9th Cir. 2009). The ADAAA went
into effect on January 1, 2009, well before Ms. Borwick was terminated from her
degree program. See Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1144
(10th Cir. 2011). The district court, however, assumed that Ms. Borwick had a
disability, but held that she was not “otherwise qualified academically” for her
degree program based on undisputed evidence that defendants believed that she was
not making satisfactory progress toward completing her degree. R. Vol. 4, at 341-42
(internal quotation marks omitted). The court therefore did not even arguably apply
an improperly narrow, pre-ADAAA definition of disability to defeat her claims.
Ms. Borwick’s suggestion that the University did not view her as an individual with a
disability is baseless. See Aplt. Opening Br. at 19.
Ms. Borwick cites a number of regulations that were revised in order to
implement the ADAAA. These new provisions did not go into effect until May 24,
2011, however, 76 Fed. Reg. 16978, which was well after the events prompting this
suit. Ms. Borwick does not point to any language suggesting that the new regulations
are to be applied retroactively. Moreover, she fails to demonstrate that any of these
provisions could have made any difference to the district court’s decision. For
example, she relies on 29 C.F.R. § 1630.2(o)(4), which provides that a “‘covered
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entity is required, absent undue hardship, to provide a reasonable accommodation to
an otherwise qualified individual who meets the definition of disability.’”
Aplt. Opening Br. at 18 (quoting § 1630.2(o)(4)). She asserts that the University’s
only defense to providing her an accommodation under this provision is that it would
cause “undue hardship.” See id. She ignores, however, that even if this new
provision should be applied retroactively (which we need not and do not decide), she
still must show that she was an “otherwise qualified individual.” § 1630.2(o)(4). But
she has pointed us to no record evidence tending to show that she was making
satisfactory progress toward completing her degree to put in dispute defendants’
evidence that she was not making adequate progress.
Ms. Borwick also argues on appeal that “otherwise qualified” meant only that
she could not meet the University’s “arbitrary” seven-year deadline for completing
her degree. See Aplt. Opening Br. at 23. This appears to be a change in position, as
the district court stated that she “d[id] not appear to dispute that the School had a
requirement that a student complete a degree in seven years, not d[id] she dispute that
the School required that individuals seeking to obtain an extension of that deadline
demonstrate that they were nevertheless making satisfactory progress towards
completing their degree.” R. Vol. 4, at 342. In any event, it is undisputed that the
University granted Ms. Borwick three one-year extensions of time, and the
University believed that she had not made satisfactory progress toward completing
her dissertation when she was terminated from the program after ten years. And she
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conceded that she chose not to request a medical stop-out from her Ph.D. program,
which would have tolled the time in which she was required to complete her degree.
See id., Vol. 1, at 136. Ms. Borwick’s other arguments concerning her claims for
discrimination, disparate impact, and retaliation are conclusory and unsupported by
any reference to the evidentiary record, and they do not warrant any discussion.
Ms. Borwick also argues that “she placed her trust in the fact that a contract
existed” under the 2000-2001 Ph.D. Program Handbook. Aplt. Opening Br. at 27.
Her argument, however, is conclusory and unsupported by citation to the evidentiary
record or legal authority. We will not search the record for her evidence allegedly
showing that the University made an enforceable promise to her. See Garrett, 425
F.3d at 840. We therefore affirm the district court’s conclusion that Ms. Borwick
failed to demonstrate that an enforceable contract existed.
Affirmed.
Entered for the Court
Monroe G. McKay
Circuit Judge
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