Daniel L. Goldberg v. Florida International University

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 29, 2020
• Docket: 20-11462
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-11462 Non-Argument Calendar ________________________

D.C. Docket No. 1:18-cv-20813-JEM

DANIEL L. GOLDBERG,

Plaintiff-Appellant,

versus

FLORIDA INTERNATIONAL UNIVERSITY, Board of Trustees,

Defendant-Appellee.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(December 29, 2020)

Before MARTIN, ROSENBAUM, and GRANT, Circuit Judges.

PER CURIAM: USCA11 Case: 20-11462 Date Filed: 12/29/2020 Page: 2 of 13

Daniel Goldberg appeals from the district court’s grant of summary judgment

in favor of the Florida International University Board of Trustees (“FIU”) in his

lawsuit alleging that FIU failed to provide reasonable accommodations for his

disability, in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C.

§ 12101 et seq., and the Rehabilitation Act, 29 U.S.C. § 705, et seq. After careful

review, we affirm.

I.

We review the district court’s grant of summary judgment de novo,

“considering the facts and drawing all reasonable inferences in the light most

favorable to the non-moving party.” Melton v. Abston, 841 F.3d 1207, 1219 (11th

Cir. 2016). “Summary judgment is appropriate ‘if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)).

II.

The relevant facts, in the light most favorable to Goldberg, are as follows.

Goldberg began classes at FIU’s medical school in August 2013. The student

handbook in effect at that time stated that course grades were assigned on a scale of

0 to 100, and 75 was the lowest passing grade. In March 2014, FIU updated the

student handbook to reflect that a score of 80 or above was satisfactory, while 75 to

79 was a “low pass,” and—as before—a score below 75 was failing. In July 2015,

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FIU revised the handbook once again, this time to reflect that a grade of 80 was the

minimum score designating competency and grades of 75 to 79 indicated marginal

competency. All three versions of the handbook provided that a student who

received a grade below 75 would be given a chance to remediate the score and, if

successful, would pass the class with a grade of “U75.”

The medical-school program was broken into four “periods,” each of which

corresponded with an academic year. In Period 1, which ran from August 2013 to

April 2014, Goldberg took eleven classes. On November 6, 2013, after he received

a grade of 78 in each of his first two classes, Dr. Carolyn Runowicz, FIU’s Executive

Associate Dean for Academic Affairs, sent him a letter informing him that his

academic performance was “marginal.” In the letter, she informed Goldberg that the

Medical Student Evaluation and Promotion Committee (“MSEPC”) would be

monitoring his continued performance. Later in Period 1, he finished a course with

a score below 75, but successfully remediated and passed the class with a U75. His

overall grade-point average for Period 1 was 82.34.

On May 10, 2014, which was about a month into Period 2, Goldberg was

treated in the emergency room for a laceration on the back of his head. When he

arrived at the emergency room, he told the nurse evaluating him that he had been hit

in the head and knocked unconscious. He informed various school officials about

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his injury, but he did not seek disability accommodations immediately following the

incident.

Period 2 ended on April 12, 2015. Of his sixteen courses, Goldberg passed

six with scores above 80 and two more that were graded on a pass/fail basis. He

passed seven courses with a “low pass” score between 75 and 80, and he failed one

course. His grade-point average for Period 2 was 79.46.

On May 6, 2015, after meeting with Goldberg to review his academic

performance, the MSEPC issued a memorandum recommending that he repeat

Period 2. It found that his academic performance was a reason for “grave concern,”

that he was “not academically prepared to enter his third year of medical school,”

and that he “lack[ed] the fundamental foundation of knowledge which is required

during clinical rotations.” It further recommended that, if he failed any further

courses or remediation exams, the MSEPC should review his performance again

with the possibility of adverse recommendations, including dismissal. Dr. Runowicz

met with Goldberg and, on May 13, 2015, determined that he would be required to

repeat Period 2.

Also in May 2015, Goldberg met with Dr. Nathaly Desmarais, a psychologist

at FIU’s Medical Student Counseling Center. In a letter dated May 15, 2015,

Dr. Desmarais wrote to FIU’s Disability Resource Center (“DRC”), stating that

Goldberg had undergone testing and had been prescribed medication to treat

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Attention Deficit Hyperactivity Disorder. She recommended that he receive 50%

extra time on examinations. The DRC subsequently submitted a memorandum to

the medical school, stating that Goldberg had a disability and had requested an

accommodation of 50% extra time and a quiet room to take examinations. The

medical school granted these accommodations.

On June 10, 2015, Goldberg saw Dr. Kester Nedd, a neurologist, who

submitted a letter to the DRC stating that Goldberg had suffered a concussion in the

2014 incident and needed 100% extra time to take tests. The DRC submitted another

memorandum to the medical school on July 7, 2015, stating that Goldberg had a

disability and had requested an accommodation of 100% extra time to take

examinations. Two medical school officials later met with Goldberg to explain that

the school would not implement the double-time accommodation. The decision was

based on (1) the temporal proximity between Goldberg’s initial request for 50%

extra time and his subsequent request for 100% extra time, as there had not been a

chance to determine whether the 50% accommodation was effective, and (2) the

medical school’s belief that the National Board of Medical Examiners would not

provide Goldberg 100% extra time on his licensure examinations.1

1 On appeal, Goldberg appears to dispute the medical school’s stated reasons for initially denying his request for 100% extra time on exams. But he did not dispute these reasons below— rather, he disputed the facts surrounding the process the medical school used to reach its decision. [Doc. 38 at 7; Doc. 53 at 5-6] Regardless, because we agree with the district court that Goldberg did not establish a prima facie case of disability discrimination, the medical school’s reasons for not implementing the double-time accommodation in the summer of 2015 are not material. 5 USCA11 Case: 20-11462 Date Filed: 12/29/2020 Page: 6 of 13

In October 2015, Goldberg experienced sudden-onset tinnitus shortly before

a scheduled midterm examination. After he took the exam (with 50% extra time),

he went to the DRC and requested an accommodation in the form of a white-noise

machine for future exams. The DRC submitted his request to the medical school,

which granted the accommodation. Goldberg failed the midterm in question and

received a failing grade in the course. Ultimately, he passed a remediation exam and

passed the course with a grade of U75.

Due to his initial failure, Goldberg once again appeared before the MSEPC

and, on November 10, 2015, the MSEPC issued a memorandum finding that

Goldberg’s “continued lack of insight about the importance of medical knowledge

pose[d] a threat to patients” and that he was “not able to successfully complete

medical school.” It recommended that he be given the opportunity to voluntarily

withdraw or, otherwise, that he be involuntarily withdrawn. However, due to his

tinnitus diagnosis and treatment, Dr. Runowicz decided to modify the MSEPC’s

recommendation and allow Goldberg to continue in Period 2.

In April 2016, Goldberg failed another Period 2 course, and the MSEPC once

again held a hearing and recommended that Goldberg be given the choice between

voluntary or involuntary withdrawal. In June 2016, Goldberg met with Dr.

Runowicz to discuss the MSEPC’s recommendation, and at that meeting he stated

that Dr. Nedd believed that he needed the 100% extra-time accommodation. She

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referred his request to the medical school’s accommodations committee, and in July

2016, he was granted 100% additional time on written exams. With that

accommodation in place, he passed the remediation examination for the course he

had failed in April.

The medical school permitted Goldberg to advance to Period 3, which

consisted of a series of clinical rotations, or “clerkships.” Goldberg performed well

in his first rotation in Period 3, pediatrics. However, he received a failing grade in

his next rotation, obstetrics and gynecology (“OB/GYN”). In that course, although

he received 100% extra time and a white-noise machine on his written exams, he did

not receive those accommodations for in-class quizzes. However, his average score

on his quizzes was in the passing range; his professor explained to the MSEPC that

he failed because he did not meet three out of eight clinical competencies.

Goldberg learned that he failed his OB/GYN clerkship in November 2016, on

the night before his final exam for his third rotation, family medicine. He failed the

family medicine exam on his first try and failed it again when he retook it in

December 2016. He received the 100% extra-time accommodation for both

attempts.

In January 2017, the MSEPC recommended for a third time that Goldberg be

given the choice between voluntary and involuntary withdrawal from the medical

school. Goldberg, however, argued that his OB/GYN grade was arbitrary and

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capricious. The MSEPC issued revised findings in March 2017 to address his

grievance. It acknowledged his position that his OB/GYN failure was arbitrary and

capricious, but it found that, in light of his history of poor academic performance,

his failure of either the OB/GYN or family medicine clerkship was sufficient to

warrant dismissal.

On March 29, 2017, the dean of the medical school, Dr. John Rock, made a

final determination that Goldberg would be involuntarily withdrawn if he did not

withdraw voluntarily. Dr. Rock found that, “[b]ased upon Mr. Goldberg’s historical

poor academic performance (specifically excluding his failure in the OB/GYN

clerkship) and his failing grade in the Family Medicine clerkship, his academic

performance is unacceptable.”

Goldberg appealed to the FIU Provost, which found no basis to reverse

Dr. Rock’s decision.

III.

Goldberg filed a complaint against FIU in the district court, alleging that FIU

violated the Rehabilitation Act and Title II of the ADA by failing to provide

reasonable accommodations for his disability. Specifically, he alleged facts

pertaining to FIU’s initial refusal and eventual grant of his request for 100% extra

time on exams and, in a footnote, he alleged that he had not been permitted to retake

his failed midterm after the tinnitus incident.

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FIU answered, and the parties began to exchange discovery. Nearly seven

months after he filed his lawsuit, Goldberg moved for leave to file an amended

complaint. After a hearing, the district court denied his motion.

After discovery, FIU moved for summary judgment. A magistrate judge

recommended that the district court deny FIU’s motion, finding that FIU had not

established that Goldberg’s request for double-time on exams presented an undue

hardship. FIU objected, arguing that its motion did not reach the affirmative defense

of undue hardship because Goldberg did not prove a prima facie case of disability

discrimination.

The district court agreed, rejected the magistrate judge’s report and

recommendation, and granted summary judgment to FIU. The court concluded, in

relevant part, that Goldberg was not an “otherwise qualified” individual because his

academic performance was not acceptable regardless of the accommodations he

received. It found that his academic performance was “borderline” before Goldberg

requested accommodations and that, even after he received the full accommodation

he had requested—double-time on exams—he still failed. It concluded that no

reasonable jury could find in his favor. Goldberg now appeals.

IV.

The Rehabilitation Act prohibits any program or activity that receives federal

financial assistance, which includes the medical school here, from discriminating

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against any “otherwise qualified individual with a disability . . . solely by reason of

her or his disability.” 29 U.S.C. § 794(a). Likewise, Title II of the ADA prohibits

public entities from denying the benefits of their services, programs, or activities to

a “qualified individual with a disability . . . by reason of such disability.” 42 U.S.C.

§ 12132.

Discrimination cases under the Rehabilitation Act and ADA are governed by

the same standards. Cash v. Smith, 231 F.3d 1301, 1305 (11th Cir. 2000). To

establish a prima facie case of discrimination under the Rehabilitation Act or ADA,

the plaintiff must demonstrate that he (1) is disabled, (2) is a qualified individual,

and (3) was subjected to unlawful discrimination because of his disability. See id.

In the context of postsecondary education, an otherwise qualified individual is a

person who can meet the program’s academic standards, with or without

accommodations. See Onishea v. Hopper, 171 F.3d 1289, 1300 (11th Cir. 1999) (en

banc); 34 C.F.R. § 104.3(l)(3).

In certain circumstances, an educational institution’s refusal to accommodate

the needs of a disabled person amounts to discrimination against that person because

of his disability. See Se. Cmty. Coll. v. Davis, 442 U.S. 397, 412-13 (1979). The

plaintiff bears the burden of identifying a reasonable accommodation—that is, an

accommodation that enables him to perform the “essential functions” of his position.

See Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir. 2001). However,

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the Rehabilitation Act “imposes no requirement upon an educational institution to

lower or to effect substantial modifications of standards to accommodate a

handicapped person.” Davis, 442 U.S. at 413. A professional school’s

unwillingness to make “major adjustments” to its program to accommodate the

disabled does not constitute disability discrimination. See id. Moreover, the duty to

provide a reasonable accommodation under the Rehabilitation Act and ADA is not

triggered “unless a specific demand for an accommodation has been made.” Gaston

v. Bellingrath Gardens & Home, Inc., 167 F.3d 1361, 1363 (11th Cir. 1999); Willis

v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir. 1997) (“The ADA provides no cause

of action for ‘failure to investigate’ possible accommodations.”).

The district court properly granted summary judgment on Goldberg’s failure-

to-accommodate claims under the Rehabilitation Act and the ADA because he did

not establish a prima facie case of disability discrimination under those statutes.

Goldberg contends that the district court erred because it did not evaluate

whether he was qualified at each point in time when the medical school denied him

a requested accommodation. His argument fails. As an initial matter, while his brief

lists numerous requests and denials that occurred throughout his time at the medical

school,2 his complaint alleged only two: the denial in summer 2015 of his request

2 Included among these “denials” are multiple accommodations that Goldberg indisputably did not request, but that he now argues the medical school should have known he needed. Of 11 USCA11 Case: 20-11462 Date Filed: 12/29/2020 Page: 12 of 13

for 100% extra time on exams, and the denial of his request to retake the midterm

that he failed due to the onset of tinnitus in October 2015. And he has abandoned

any argument that the district court abused its discretion by denying his motion to

amend his complaint because he did not raise that issue on appeal. See Sapuppo v.

Allstate Floridian Ins. Co., 739 F.3d 678, 681-82 (11th Cir. 2014).

But the larger flaw in Goldberg’s case is that, even if he could have been

qualified with the right accommodations, he did not meet his burden to identify a

reasonable accommodation that would have allowed him to meet the standards of

the medical school program despite his disability. See Lucas, 257 F.3d at 1256

(stating that we may affirm the district court’s judgment on any grounds supported

by the record). It is undisputed that he received 100% extra time on examinations

in his OB/GYN and family medicine clerkships. Yet he twice failed the final exam

in family medicine, and he failed his OB/GYN clerkship because he did not meet

three out of eight clinical competencies—a separate component of his grade from

written exams, and one for which he did not request accommodations. Because he

could not meet the medical school’s standards even with 100% extra time on

examinations, Goldberg has not shown that his requested accommodation was

course, the duty to provide reasonable accommodations does not arise until a specific request is made. Gaston, 167 F.3d at 1363. 12 USCA11 Case: 20-11462 Date Filed: 12/29/2020 Page: 13 of 13

reasonable. See id. Accordingly, FIU is not liable under the Rehabilitation Act or

ADA for refusing to provide this accommodation earlier than it did.

As for the denial of Goldberg’s request to re-take his midterm after the tinnitus

incident in October 2015, it is undisputed that, because of his tinnitus diagnosis,

Dr. Runowicz overruled the MSEPC’s recommendation that he be expelled

following his failure of the course. He was then permitted to take the remediation

exam for the course, which he passed, and he continued his medical school career.

Thus, while he could not re-take the exact exam that he requested, he was able to

take an extra examination, in line with the medical school’s regular procedures, to

show that he was competent in the subject matter and to remediate his earlier failure.

Goldberg has not raised a triable issue that FIU failed to accommodate him in this

matter. See Davis, 442 U.S. at 413; Stewart v. Happy Herman’s Cheshire Bridge,

Inc., 117 F.3d 1278, 1286 (11th Cir. 1997) (“[An] individual with a disability is not

entitled to the accommodation of her choice, but only to a reasonable

accommodation.” (internal quotation marks omitted)).

V.

For these reasons, we affirm the district court’s grant of summary judgment

in favor of FIU.

AFFIRMED.