Betts v. Rector & Visitors of the University of Virginia

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-1567
ROBERT W. BETTS, II,
Plaintiff - Appellant,
versus
THE RECTOR AND VISITORS OF THE UNIVERSITY OF
VIRGINIA,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Samuel G. Wilson, Chief
District Judge. (CA-96-54-3)
Argued: December 3, 2003 Decided: August 5, 2005
Before WIDENER and KING, Circuit Judges, and Richard D. BENNETT,
United States District Judge for the District of Maryland, sitting
by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Dexter Brock Green, JONES & GREEN, L.L.P., Charlottesville,
Virginia, for Appellant. Richard Croswell Kast, Associate General
Counsel and Special Assistant Attorney General, Office of the
General Counsel, UNIVERSITY OF VIRGINIA, Charlottesville, Virginia,
for Appellee. ON BRIEF: Paul J. Forch, General Counsel and Special
Assistant Attorney General, Susan M. Davis, Associate General
Counsel and Special Assistant Attorney General, Office of the
General Counsel, UNIVERSITY OF VIRGINIA, Charlottesville, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
This case has been argued on three previous occasions in this
court and has been decided by written opinion on two of those
occasions: Betts v. The Rector & Visitors, etc., No. 97-1850 (4th
Cir. 1999)(unpublished); and Betts v. The Rector & Visitors, etc.,
No. 00-2305 (4th Cir. 2001)(unpublished). It has also been the
subject of three published opinions in the district court: Betts
v. Rector & Visitors, etc., 967 F. Supp. 882 (W.D. Va. 1997); Betts
v. Rector & Visitors, etc., 113 F. Supp. 2d. 970 (W.D. Va 2000);
and Betts v. Rector & Visitors, etc., 198 F. Supp. 2d 787 (W.D. Va.
2002). We now affirm.
In this appeal, Robert W. Betts challenges the district
court’s order granting summary judgment to the Rector and Visitors
of the University of Virginia on his discrimination claims brought
under the Americans with Disabilities Act (ADA), 42 U.S.C. §§
12101-12213 (2000) and the Rehabilitation Act of 1973, 29 U.S.C. §§
701-797b (1995). At issue is the University’s decision to dismiss
Betts from a post-baccalaureate program and revoke a conditional
offer to accept him as a student in the University’s School of
Medicine upon successful completion of the post-baccalaureate
program. We are of opinion that the University afforded Betts a
reasonable accommodation within the meaning of the statutes,
whether Betts was actually disabled within the meaning of 42 U.S.C.
§ 12102(2)(A) or perceived to be disabled under 42 U.S.C. §
3
12102(2)(C). We thus affirm the district court, which held that no
causal connection existed between Betts’ perceived disability and
the University’s refusal to grant him admission.
I.
The essential facts are undisputed. Betts applied to the
University’s School of Medicine for entry in 1995 and was not
admitted but was placed on the alternate waiting list. As an
alternative to the waiting list, the University offered him a spot
in its Medical Academic Advancement Post-Baccalaureate program
(MAAP Postbacc). The Postbacc program was a one-year program
designed to prepare minority and economically disadvantaged
applicants for the first year of medical school. Acceptance into
the Postbacc program carried with it admission to the School of
Medicine in the class ending in 1996 if that student completed the
Postbacc program’s requirements, which included maintaining a 2.75
grade-point average and receiving no grade lower than a C.
Satisfactory performance was judged by the faculty of the program.
Betts enrolled in that program in the summer of 1995, but he
did not meet the minimum requirements. For the fall semester, he
had a 2.2 GPA and received a D- in Physics. Rather than dismissing
Betts, the Postbacc Promotions Committee allowed him to remain in
the program on a probationary basis. Betts was required to arrange
tutoring and to contact the University’s Learning Needs and
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Evaluation Center for testing to determine whether he had a
learning disability. The Committee also informed Betts that his
performance would be re-evaluated by the Postbacc Promotions
Committee following the spring semester.
After conducting a series of tests, the Learning Needs Center
concluded in April 1996 that Betts exhibited difficulties with
short-term memory and reading speed. This was reported to his
professors. Later a more complete evaluation of the same tests
showed that Betts demonstrated “high average verbal conceptual
skills and average intellectual ability.” The evaluation also
revealed “significant weaknesses in particular patterns of
abilities” and evidence suggesting that Betts “lacks adequate
strategies when information exceeds the storage capacity of his
short term memory.”
The Learning Needs Center recommended that Betts be given
twice the allotted time to complete his timed examinations. On his
five spring term exams, taken using the double time accommodation,
Betts had a 3.5 GPA. However, Betts had taken several of his
spring exams prior to receiving the accommodation, and his
composite spring GPA was 2.84. Betts’ cumulative GPA for the
entire year was 2.53.
The Postbacc Promotions Committee then met again and reviewed
Betts’ record. Basing its decision on Betts’ failure to “meet the
overall 2.75 GPA standard for the academic year,” the Committee
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voted to drop him from the MAAP Postbacc program and rescind its
conditional offer of admission to the entry class of 1996 in the
School of Medicine. Betts unsuccessfully appealed the decision to
the Dean of the School of Medicine. He then filed this suit.1
II.
Title II of the ADA provides that “no qualified individual
with a disability shall, by reason of such disability, be excluded
from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” 42 U.S.C. § 12132 (1995).
Similarly, the Rehabilitation Act states that “[n]o otherwise
qualified individual with a disability . . . shall, solely by
reason of his of her disability, be excluded from the participation
in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial
assistance . . . .” 29 U.S.C. § 794(a) (1999).
The ADA and the Rehabilitation Act are generally construed to
impose the same requirements. See Baird ex rel. Baird v. Rose, 192
F.3d 462, 468-69 (4th Cir. 1999). This principle follows from the
1
Betts initially alleged that the University’s actions also
violated 42 U.S.C. § 1983 and Virginia contract law. In a previous
opinion, we affirmed the district court’s grant of summary judgment
on these claims. See Betts v. The Rector & Visitors of Univ. of
Va., No. 97-1850, 1999 WL 739415 (4th Cir. Sept. 22, 1999)
(unpublished op.) aff’g 967 F. Supp. 882 (W.D. Va. 1997).
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similar language employed in the two acts. It also derives from
the Congressional directive that implementation and interpretation
of the two acts “be coordinated to prevent[] imposition of
inconsistent or conflicting standards for the same requirements
under the two statutes.” Baird, 192 F.3d at 468 (citing 42 U.S.C.
§ 12117(b)) (alteration in original).
Thus, to state a cause of action under the ADA or the
Rehabilitation Act, Betts must show that (1) he has a disability as
defined by the statute; (2) he is otherwise qualified for the
benefit in question; and (3) he was excluded from the benefit on
the basis of his disability. Baird, 192 F.3d at 467 (citing Doe v.
Univ. of Md. Med. Sys. Corp., 50 F.3d 1261, 1265 (4th Cir. 1995)).2
III.
In our second decision in this case, Betts v. The Rector &
Visitors of Univ. of Va., No. 00-2305 (2001), we decided that Betts
was not disabled under the provisions of 42 U.S.C. § 12102(2)(A).
In that same decision however, we decided that Betts did have a
2
While the general requirements of a disability
discrimination claim under the ADA and the Rehabilitation Act are
the same, the standard of causation is not. 29 U.S.C. § 794plaintiffs must demonstrate that the discrimination occurred
“solely by reason of” their disability. 29 U.S.C. § 794(a). ADA
plaintiffs, on the other hand, need only demonstrate that their
disability played a motivating role in the discriminatory action.
See Baird, 192 F.3d at 468-70. Because Betts has failed to show
causation under the more lenient ADA standard, we need not dwell on
this distinction.
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perceived disability under 42 U.S.C. § 12102(2)(C) so that in order
to recover, Betts must prove that the University “mistakenly
believe[d] that [he] has a physical impairment that substantially
limits his ability to learn.” Slip op. at 6 (alteration in
original). We also recited in that second appeal that our decision
was limited to whether or not Betts had a disability under the ADA
and that neither party had raised the issue of causation, defined
as “whether the University denied Betts benefits because of his
disability.” Slip op. at 9 n.2.
On remand, the district court addressed the causation issue,
not decided in our second decision. It decided that Betts had not
demonstrated the causal link of his perceived disability to his
dismissal from the MAAP Postbacc program. It held that Betts had
been dismissed “solely because Betts failed to meet the objective
GPA requirement.” Betts v. Rector & Visitors of Univ. of Va., 198
F. Supp. 2d 787, 798 (W.D. Va. 2002). The district court did not
decide the case on the basis of Eleventh Amendment immunity of the
University, rather, on the merits.
From that order Betts appeals. In this appeal, the University
takes the position that the decision of the district court as to
causation is correct, but that if not correct, an Eleventh
Amendment defense should be considered.
The question of the application of the Eleventh Amendment was
raised in the district court, which did not decide the same.
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Instead, it held that it “need not decide the Eleventh Amendment
question, and instead can proceed to the merits.” 198 F. Supp. 2d
at 791. That the district court was correct in that ruling is
illustrated by two recent decisions of the Supreme Court, Idaho v.
Coeur D’Alene Tribe of Idaho, 521 U.S. 261 (1997), and Wisconsin
Department of Corrections v. Schacht, 524 U.S. 381 (1998). Coeur
D’Alene was a case in which the Indian tribe sued the State of
Idaho to ascertain the extent of the tribe’s ownership in the banks
and submerged lands of Lake Coeur D’Alene, various of its
tributaries, and streams flowing from the lake. The Court applied
the Eleventh Amendment, holding that the Eleventh Amendment barred
the suit in the federal court. It held the State of Idaho was
entitled to rely on its Eleventh Amendment immunity and to insist
upon responding to the claims fo the tribe in the courts of that
State. Important to this case is its reasoning:
Rather, a State can waive its Eleventh Amendment
protection and allow a federal court to hear and decide
a case commenced or prosecuted against it. The
Amendment, in other words, enacts a sovereign immunity
from suit, rather than a non-waivable limit on the
federal judiciary’s subject matter jurisdiction.
521 U.S. 261, 267.
Consistent with that reasoning is the Schacht case, which was
a case in which a dismissed prison guard sued the State of
Wisconsin Department of Corrections on account of his discharge
and, as well, several employees of the Department, both in their
personal and official capacities. The action was brought in a
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state court of Wisconsin, and because Schacht had sued for
deprivation of his liberty and property without due process of law,
in violation of the federal Constitution and laws, the defendants
removed the case to the federal court. The Court considered that
Schacht’s claims against the officials in their personal capacities
were not claims against the State of Wisconsin, rather against them
personally. So the Eleventh Amendment defense asserted by the
State was permissible as to the Department and officials in their
official capacities, but could not be asserted against the
officials in their personal capacities. Despite this, the Court
held that the removal was permissible and that the district court
could hear the claims against the officials in their personal
capacities but could not hear the claims against the officials in
their official capacities nor against the Department. Its
reasoning is much the same as in Coeur D’Alene:
The Eleventh Amendment, however, does not automatically
destroy original jurisdiction. Rather, the Eleventh
Amendment grants the State a legal power to assert a
sovereign immunity defense should it choose to do so.
The State can waive the defense. Nor need a court raise
the defect on its own. Unless the State raises the
matter, a court can ignore it.
524 U.S. 381, 389 (citations omitted).
Thus, we conclude, in accordance with Coeur D’Alene and
Schacht that the district court was within its authority in
proceeding to the merits and in not deciding the Eleventh Amendment
question.
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IV.
A.
We finally consider whether the district court properly
awarded summary judgment to the University on causation grounds.
We review this issue de novo, construing the facts in the light
most favorable to Betts. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). Even under the deferential summary judgment
standard, however, the record does not support Betts’ contention
that his disability motivated the University’s decision.
Furthermore, we believe that the University provided reasonable
accommodations to Betts that satisfied applicable statutory
mandates, whatever the nature of Betts’ disability and whether
actual or perceived. In sum, because the record taken as a whole
could not lead a rational trier of fact to find for Betts on
causation, or failure to accommodate, no genuine issue for trial
existed and summary judgment was appropriate. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
As discussed above, ADA plaintiffs must demonstrate that they
are (1) “disabled” for purposes of the ADA, (2) otherwise
qualified, and (3) discriminated against on the basis of their
disability. Baird, 192 F.3d at 467 (citing Doe, 50 F.3d at 1265);
see also 42 U.S.C. § 12132 (prohibiting discrimination “by reason
of” disability). In No. 97-1850, our first opinion, we held that
Betts was otherwise qualified, and in No. 00-2305, we held that he
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was regarded as disabled under the ADA. As Betts now acknowledges,
only the causation prong of Baird has not yet been decided by this
court. Br. of Appellant at 12 (“This brings the analysis to the
third and final element of an ADA claim, causation.”).
It is not even claimed that there is evidence in this case of
any intent or motivation on the University’s part to discriminate
against Betts because of his perceived disability. To the
contrary, the record demonstrates that the University dismissed
Betts because he did not meet the MAAP Postbacc’s objective
performance standards. For example, the deposition testimony of
Dr. Benjamin Sturgill, chairman of the Promotions Committee,
addressed the specific issue of what the Committee considered in
its evaluation:
Q: All right. And that was the reason the
committee decided not to allow him to continue
in the program, that his cumulative annual
grade point average was below a 2.75?
A: I think that is a fair assessment of that
decision, yes.
Q: Okay. And that was the only criteria that he
hadn’t met. There weren’t other criteria that
he hadn’t met?
A: That’s correct.
* * *
A: We only looked at his grades.
Q: And when you say his grades, you’re talking
about his overall grades for that entire
semester?
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A: Yes.
JA 107-08, 112. The other evidence confirms the objectivity of the
University’s decision. See, for example, JA 120-127 (Aff. of Dir.
of Admissions Beth Bailey); and JA 113-114, a part of the testimony
of Dr. Robert Carey, Dean of the Medical College, as to how he
decided Betts’ appeal from the Committee decision:
Q: That’s fine. In making your June 10 decision
to uphold the decision of the committee
dismissing him from the program, did you take
into account the fact that his academic
performance had significantly improved after
he had received accommodations --
A: Yes.
Q: -- sometime in April of 1996?
A: Yes. I have that knowledge, and I did take
that into account in my decision.
Q: Okay. How did that factor into your
decision?
A: I think it was a matter of trying to make a
decision about whether he was qualified to
enter medical school with the information that
we had at hand at that time, including the
results of those examinations which occurred
after accommodation. And my decision was
based on the bulk of the evidence as to
whether he was qualified or not and was really
based on the bulk of the evidence as to
whether he was qualified or not and was really
based on the fact that we had only a few
examinations in which he had done well during
accommodation as compared to a very lengthy
track record during that year of lack of
success and even beyond that, his academic
record before he came into the MAAP program,
although that was a minor factor.
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I think the major factor was he had gone
through the year, he had not achieved the
academic record minimum that we had required,
and that with the amount of time and effort
that went into that part of it as compared to
the few exams that we had at the end, I just
didn’t feel that the bulk of the evidence was
there that he could -- that he was qualified
to enter into and be successful.
At this point, we note especially the GUIDELINES FOR
IMPLEMENTATION OF POST-BACC PROGRAM:
3. If at the end of the second semester of the post-bacc
academic year the GPA for either semester falls below the
standard, the student will be evaluated by the post-bacc
promotions committee who will advise the admissions
office as to whether the student should be allowed to
continue in the program.
Confronted with the evidence from the faculty members and the
Admissions officer, which is supported by Betts’ grades, which we
do not individually enumerate, Betts argues that the University’s
decision had the effect of discriminating against him on the basis
of his perceived disability.
In light of its well-founded and ADA-benign concerns about
Betts’ academic record, the end of the MAPP Postbacc program and
Betts’ imminent matriculation in the medical school, we think that
the University had two choices: ignore years of objective
evidence, within the MAPP Postbacc program and without, and allow
Betts to matriculate based solely on good grades on five tests
taken (with double-time) over 18 days; or rely on Betts’ entire
academic record, particularly his performance in the MAAP Postbacc
program, and render its academic judgment. Betts’ argument would
14
preclude the Committee from considering, much less choosing, the
latter option. We decline to limit the faculty’s academic judgment
in this fashion. “Courts must also give deference to professional
academic judgments when evaluating the reasonable accommodation
requirement.” Kaltenberger v. Ohio Coll. of Podiatric Med., 162
F.3d 432, 436 (6th Cir. 1998).
B.
In addition to lack of causation, we affirm the judgment of
the district court on the alternate ground that the University
provided Betts with the reasonable accommodation required by the
ADA and the Rehabilitation Act, regardless of the nature of his
disability. Indeed, a listing of the University’s accommodations
requires our conclusion:
1. Placing Betts on the Alternate List rather than rejecting
outright his application;
2. Offering Betts admission into the MAPP Postbacc program;
3. Allowing Betts to remain in the MAAP Postbacc program
after his fall semester GPA of 2.2 fell below 2.75 and after he had
earned a grade below a C;
4. Initiating Betts’ testing for a learning disability, and
allowing Betts to stay in the MAAP program, one reason being that
testing could be had at no cost to Betts;
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5. Providing Betts with individualized help from Learning
Needs Center tutors and staff during the spring semester;
6. Granting Betts regular meetings with a faculty adviser
during the spring semester;
7. Allowing Betts double-time on the five exams from April
12 to April 30, 1996; and
8. Offering Betts even another admission to the medical
school in the matriculating class of 1997, contingent upon the
completion of another year of, and improved, course work and
improved MCAT scores.
Instead of accepting the last offer, Betts brought this suit
three days thereafter.
It is true, of course, that the first two accommodations
listed above were put in place before any formal indication of
Betts’ learning impairment (or perception of disability) surfaced.
But the other six accommodations, particularly the University’s
initiating and insistence on testing for Betts and, at the same
time, allowing him to remain in the program despite his fall-
semester grades, at least partly to allow him to obtain testing at
no personal cost, represented the University’s ongoing and more-
than-reasonable efforts to help Betts attain admission to the
medical school despite his academic troubles.
We are especially persuaded by the University’s final
accommodation to Betts, which demonstrated its stated desire to
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give Betts more time to demonstrate his capabilities with
accommodation. The district court, in 967 F. Supp. 882, 885 n.1,
refused to consider this accommodation because it determined it to
be a settlement offer under Fed. R. Evid. 408. We are of opinion
that when, as here, the question to be decided is whether an offer
of accommodation has been made, the fact that the same offer may be
considered one of settlement or accommodation does not make it
inadmissible. So we consider the offer.
The only conclusion permitted by the record is that the
University wanted Betts to matriculate right up until the end.
Indeed, we find it noteworthy that not once (until his dismissal)
did the University deny Betts any help or accommodation he sought.
But once the University decided to discontinue the MAAP Postbacc
program in its same form (a decision unrelated to Betts), it simply
ran out of ways to accommodate Betts short of suspending its
academic judgment. Even at that late point, the University devised
a last way to accommodate Betts consistent with its principles.
We need not here demarcate what accommodations are reasonable
in every case involving the ADA or academic institutions.
Considering these facts, we hold simply that the University made
all reasonable accommodations consistent with its fundamental
educational judgment, its duty to the medical profession, and its
obligation to the Commonwealth. See Wynne v. Tufts Univ. Sch. of
Med., 932 F.2d 19, 26 (1st Cir. 1991) (en banc) (“[T]he issue of
17
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.”) (citation and quotation
omitted). There is no bad faith or pretext on the part of the
University in this case.
In reaching this fact-bound conclusion, we emphasize that we
do not decide one issue briefed by the parties and reached by the
district court. In No. 00-2305 we held that Betts was not actually
disabled but was regarded as disabled. The parties dispute whether
the ADA’s accommodation requirement applies with equal force to a
“regarded as” disabled plaintiff. The district court suggested
that it does not.
This question has not been decided by this circuit, and our
sister circuits are divided on the issue. Compare Weber v.
Strippit, Inc., 186 F.3d 907, 916-17 (8th Cir. 1999), cert. denied,
528 U.S. 794 (2000) and Shannon v. New York City Transit Auth., 332
F.3d 95, 104 n.3 (2d Cir. 2003) (“It is not at all clear that a
reasonable accommodation can ever be required in a ‘regarded as’
case (such as this one) in which it is undisputed that the
plaintiff was not, in fact, disabled.”) with Katz v. City Metal
Co., 87 F.3d 26, 33-34 (1st Cir. 1996) (stating that “Katz
established that City Metal regarded him as having an impairment
18
constituting a disability under section 12102(2)(c) of the Act”).
We think that the extensive accommodations actually offered by the
University are sufficient under either theory, so we express no
opinion on that question.
V.
Because the record as a whole demonstrates that a rational
trier of fact could not find for Betts on the causation element of
his claim, and neither could a fact finder find that Betts was not
reasonably accommodated in all events, the district court properly
granted the University’s motion for summary judgment.
The judgment of the district court is accordingly
AFFIRMED.
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