Wynne v. Tufts

Opinion

USCA1 Opinion

October 6, 1992

_________________________

          No. 92-1437

                                    STEVEN WYNNE,
                                Plaintiff, Appellant,

                                          v.

                         TUFTS UNIVERSITY SCHOOL OF MEDICINE,
                                 Defendant, Appellee.

                              _________________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Rya W. Zobel, U.S. District Judge]
                                           ___________________

                              _________________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________

                         Torruella and Selya, Circuit Judges.
                                              ______________

                              _________________________

               Robert LeRoux  Hernandez, with  whom  Ellis &  Ellis was  on
               ________________________              ______________
          brief, for appellant.
               Alan  D. Rose,  with whom  Nutter, McClennen  & Fish  was on
               _____________              _________________________
          brief, for appellee.

                              _________________________

_________________________

SELYA,  Circuit  Judge.   This  appeal  requires us  to
                    SELYA,  Circuit  Judge.
                            ______________

          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
                                       ___ _____     ______________________

          Medicine, 932 F.2d 19 (1st  Cir. 1991) (en banc).   After further
          ________

          proceedings, the  district court  again entered  summary judgment

          for the defendant.  This time around, on an augmented  record, we

          affirm.

               Background
               Background
               __________

                    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
                    ___

          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
               _________________

                    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,
                                                                 ___ _____

          932  F.2d  at 24-26  (citing, inter  alia,  School Bd.  of Nassau
                                        _____  ____   _____________________

          County v. Arline, 480  U.S. 273 (1987)).  Recognizing  the unique
          ______    ______

          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).
          ___

          Because  the  summary  judgment  record  did  not  satisfactorily

4

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
                                                                     ___

          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,
                                                                _____ ____

          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
          _____

          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
               ______

                    The principal  issue on appeal is  whether, given those

____________________

               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
                                 _____
          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.
                                             ___

                                          5

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
               __________________

                    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.
                  _______    _________________

          1991),  cert.  denied, 112  S. Ct.  2965  (1992).   In operation,
                  _____  ______

          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.
                                               ___ ___  ___ ____ _______

          Osco  Drug, Inc.,  895  F.2d  46,  50 (1st  Cir.  1990).    Since
          ________________

          appellate  review  of  an  order  granting  summary  judgment  is

____________________

               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
                                                ___  ________
          suffers from a recognizable handicap.

                                          6

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
                                 ___________     _____

          (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
                                                                     ______

          disposition."  Mesnick, 950 F.2d at 822.  
                         _______

                    This   burden  is   discharged   only   if  the   cited

          disagreement  relates to a genuine  issue of material  fact.  See
                                                                        ___

          Anderson v.  Liberty Lobby,  Inc., 477  U.S. 242,  247-48 (1986).
          ________     ____________________

          "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,
                           _____________     ______________________________

          Etc. (Great Harbor Neck,  New Shoreham, R.I.), 960 F.2d  200, 204
          ____________________________________________

          (1st  Cir.  1992) (citing  Anderson,  477 U.S.  at  248; internal
                                     ________

          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
                    _______

          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
                                              ____    _____________________

          Co.,  871 F.2d  179,  181 (1st  Cir.  1989).   As  the Court  has
          ___

          cautioned,  evidence   that  "is  merely  colorable   or  is  not

          significantly   probative"   cannot   deter   summary   judgment.

          Anderson, 477 U.S. at 249-50 (citations omitted).
          ________

               Discussion
               Discussion
               __________

                    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
                                                        _____

          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
                                                                     ______

          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

10

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,
                                                        ____

          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.
                                               ___  ____  ______________

          Rodriguez-Morales, 929 F.2d 780,  785 (1st Cir. 1991) (concluding
          _________________

          that "reasonableness  has a protean quality"),  cert. denied, 112
                                                          _____ ______

          S. Ct. 868 (1992); Sierra Club v. Secretary of the Army, 820 F.2d
                             ___________    _____________________

          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
                                            _________    __________________

          Pa., 926  F.2d 1368, 1381 (3d  Cir. 1991).  A  relevant aspect of
          ___

          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.
                                                              ___

          Thus, we  must view  the reasonableness of  Tufts' accommodations

11

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

____________________

               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.

                                          12

defendant's  position.    See,   e.g.,  Villanueva  v.  Wellesley
                                    ___    ____   __________      _________

          College, 930 F.2d 124,  127 (1st Cir.), cert. denied, 112 St. Ct.
          _______                                 _____ ______

          181  (1991); Mack, 871  F.2d at 181.   The  plaintiff may neither
                       ____

          "rest[]   merely   upon   conclusory    allegations,   improbable

          inferences,  and unsupported  speculation," Medina-Munoz  v. R.J.
                                                      ____________     ____

          Reynolds  Tobacco Co.,  896  F.2d  5,  8  (1st  Cir.  1990),  nor
          _____________________

          measurably bolster  his cause  by hurling rancorous  epithets and

          espousing  tenuous insinuations.   See Mesnick, 950  F.2d at 826;
                                             ___ _______

          Yerardi's  Moody  St.  Restaurant  & Lounge,  Inc.  v.  Board  of
          __________________________________________________      _________

          Selectmen, 932 F.2d 89, 92 (1st Cir. 1991).
          _________

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.
                                       ___ _____

               Conclusion
               Conclusion
               __________

                    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
                                           ___

          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

13

record, when  considered in  the deferential light  that academic

          decisionmaking deserves, id. at 25, meet the required standard.
                                   ___

                    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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