USCA1 Opinion

June 7, 1995

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-1003

NANCY D. MURPHY,

Plaintiff, Appellant,

v.

FRANKLIN PIERCE LAW CENTER, ET AL.,

Defendants, Appellees.

____________________

ERRATA SHEET

The opinion

of this court issued

on May 31,

1995 is amended

follows:

On cover

sheet, change

"Nancy D. Miller
________________

"Nancy D. Murphy on brief pro se."

_______________

on brief

pro se."

May 31, 1995

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-1003

NANCY D. MURPHY,

Plaintiff, Appellant,

v.

FRANKLIN PIERCE LAW CENTER, ET AL.,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________
Selya and Boudin, Circuit Judges.
______________

____________________

Nancy D. Murphy on brief pro se.

_______________
Russell F. Hilliard
____________________

and Upton, Sanders & Smith on

_________________________

appellees.

____________________

____________________

brief

Per Curiam.
__________

court's

grant

of

Franklin Pierce

that

appellant

discrimination in

This is an

summary

favor

The district

Murphy's

violation of

Act of 1973, 29 U.S.C.

appellee

court determined

claim

504 of

of

district

of

handicap

the Rehabilitation

794, failed as a matter of law.

I.
_

Murphy

judgment in

Law Center.

Nancy

appeal from the

BACKGROUND
__________

suffers from diplopia,

a genetic condition

in which weakness

in the

muscles of the

eye causes

vision and problems with focusing on printed matter.

had

two

surgeries

accident) for this

(one

necessitated

ailment.

by

Murphy manages

an

double

She has

automobile

the diplopia by

limiting

the amount of time spent reading and by engaging in

muscular

exercises prescribed

treating physician.

by

Nonetheless,

Dr.

John Sebestyen,

her

when Murphy applied to the

Law Center in 1987, she was reading without impairment.

Murphy

began

experiencing

academic

almost as soon as she entered the Law Center.

her

first year,

G.P.A. of

within the

2.0

her G.P.A.

set by

was 1.88

the Law

jurisdiction of

difficulties

At

-- below

Center.

the Academic

the end of

the minimum

Thus, Murphy

came

Standing Committee

("ASC").

At

this

difficulties were due

taking skills; she

second

time,

Murphy

indicated

to a thyroid condition

did not

that

her

and poor test-

mention the diplopia.

For

her

year, the ASC required Murphy to maintain a G.P.A. of

2.0 and not to receive a grade below a C-.

Although Murphy

met these requirements

during the

fall semester, she again came before the ASC as the result of

receiving

in

Evidence

during

the

spring

semester.

Combined with D+ grades in two first-year courses, Murphy now

had more than nine credits below a C-.

of

the Law

submitted an

Center's general

analysis of her

This was in violation

academic regulations.

situation in which

for the first time, the diplopia as one of the

Murphy

she cited,

causes of her

academic problems.

Specifically,

Murphy

stated

produced double-vision, eyestrain, pain

of which interfered

of

that

diplopia

and headaches -- all

with reading efficiency.

Dr. Sebestyen, Murphy did

the

not read in

On the advice

the morning until

she had been awake for three hours, did not read or study for

more

than

three hours

at a

time, and

slept when

she had

trouble focusing.

In this letter, Murphy requested that she

be allowed to take

tests at three-day intervals so

eyestrain

Murphy

would be

further

reduced.

asked the

At a

ASC to

meeting later

permit

her to

that her

in June,

take oral

examinations.

Murphy also submitted to the

Sebestyen, dated August 11, 1989.

Dr.

Sebestyen concluded

ASC a letter from Dr.

Based on a July

12 exam,

that Murphy's convergence

was poor

-3-

and that her eye muscles were weak.

He

recommended that she

break up her reading and studying into "well-defined segments

of time such as

two hours at a

time, or three hours at

the

most."

As for

to take only

Center

nine credits --

is twelve.

she obtain

the fifth semester, the

the usual

ASC allowed Murphy

minimum at the

Law

The terms of Murphy's probation were that

a 2.3 G.P.A., have

no grades under a

C- and not

have more than one course with a C- grade.

not

appeal

however,

these

terms.

At

the

end

Again, Murphy did

of this

semester,

Murphy's G.P.A. was 1.89; she had failed one course

and had received a D in another.

Murphy was dismissed from

dated

February 12, 1990.

was based on

probation,

The ASC stated

(1) Murphy's failure

and

(2)

her

the Law Center by letter

entire

to meet the terms

academic

demonstrated that she lacked the ability to

Center's degree

the

program.

decision of the ASC.

Murphy

they

did not

affect

the question

record

of her

which

complete the Law

then pursued an

The faculty

essentially finding that although

that its decision

appeal of

upheld the dismissal

the ASC had made mistakes,

of

Murphy's ability

satisfy the academic requirements of the JD program.

to

Murphy

then filed this action in the federal district court.

In granting

district court

the motion for

concluded that

summary judgment,

Murphy had not

the

presented any

-4-

evidence contradicting the Law Center's position that she was

dismissed because she lacked the analytic skills necessary to

succeed in law

she

had

not

been

disability."

entitled to

not

school.

The

Thus, the

dismissed

"solely

court next

qualified

to

that she

recommended by Dr. Sebestyen.

A.

the

of

Law Center

her

was

Murphy was

JD

program.

that Murphy had failed despite

had received

II.
__

reason

the ground that

complete

Specifically, the court found

the fact

by

held that the

summary judgment on

otherwise

district court concluded,

all

of the

accommodations

This appeal ensued.

THE LAW
_______

Summary Judgment.
________________

Our review of an order granting summary judgment is

plenary.

Wynne v.
_____

Tufts Univ. School of Medicine,

______________________________

976 F.2d

791,

794 (1st

Cir.

S.Ct. 1845 (1993).

the

light

1992) ("Wynne II"), cert. denied, 113

__________
_____________

Thus, "we must view the entire record in

most hospitable

to

the

party opposing

summary

judgment, indulging all reasonable inferences in that party's

favor."

1990).

is

Griggs-Ryan v. Smith,
___________
_____

115 (1st Cir.

If the record along with affidavits "show that there

no genuine

issue as

moving party is

we

904 F.2d 112,

to any material

entitled to a judgment as a

will uphold the grant of

The Rehabilitation Act.

______________________

-5-

that the

matter of law,"

summary judgment.

P. 56(c); Wynne II, 976 F.2d at 794.

________

B.

fact and

Fed. R. Civ.

Section 504 provides that "[n]o otherwise qualified

individual with a disability . . . shall, solely by reason of

her or his disability, be excluded from the participation in,

be denied the benefits of, or be subjected to

under

any program

assistance . . . ."

or activity

29 U.S.C.

receiving

794.

discrimination

Federal financial

We have held that a

504 claimant must show that he or she (1) was dismissed

from

a program which receives federal funds, (2) was disabled, (3)

but

nonetheless

was

otherwise

dismissed solely because of

qualified,

and

(4)

his or her disability.

was

Cook v.
____

Rhode
Island Dept.
of Mental Health,
Retardation, &
_____________________________________________________________

Hospitals, 10
_________

F.3d 17, 22

(1st Cir. 1993).

The parties do

not dispute that Murphy

is disabled and that the

receives federal funds.

The

Murphy

is an

Law Center

primary question is whether (1)

"otherwise qualified

individual" (2)

who was

dismissed from the Law Center solely because of her handicap.

The district court found Murphy's claim wanting

both

issues.

correctly

Because

determined

we

that

find

that

Murphy

is

the

not

district

an

on

court

"otherwise

qualified individual," we need not reach the second basis for

the ruling below.

To

must

be

demonstrate

academic

otherwise qualified

that she

and technical

with the help

was

for

capable

requirements set

retention, Murphy

of satisfying

by the

of reasonable accommodations.

-6-

the

Law Center

See McGregor v.
___ ________

Louisiana State Univ. Bd. of Supervisors, 3

__________________________________________

(5th

we

Cir. 1993), cert. denied, 114 S.Ct. 1103 (1994).

____________

look

to

see

whether the

reasonable accommodation for

rational

interfere

at

F.3d 850,

conclusion that

Law

Center

Murphy's diplopia or

accommodating Murphy

with its academic program.

793.

Where,

as

either

here,

the

855

Thus,

provided

reached a

would unduly

See Wynne II, 976 F.2d

___ ________

facts

regarding

what

accommodations were made are not in dispute, this question is

legal one.

Wynne v. Tufts Univ. School of Medicine, 932

_____
_______________________________

F.2d 19, 26 (1st Cir. 1991) (en banc) (citation omitted).

III.
___

DISCUSSION
__________

Murphy argues that the Law Center did not engage in

the required analysis concerning what reasonable alternatives

were available

diplopia.

to it

for the

purpose of

accommodating her

She points to the faculty's decision affirming her

dismissal in which the involved faculty members note that the

ASC

never

considered

investigated

June

Murphy

to

be

handicapped,

never

the information contained in Murphy's letter of

9, 1989,

never consulted

Dr. Sebestyen

regarding the

extent of the diplopia despite his letter of August 11, 1989,

and never considered

the probationary

the effects of the

terms for Murphy's fifth

also claims that the

diplopia in setting

semester.

Law Center, in fact, failed

any of the accommodations requested by her or

Dr. Sebestyen.

Murphy

to provide

recommended by

-7-

The

record reveals that the following adjustments

were made for Murphy's fifth semester -- the only time period

to

which

Murphy to

Murphy

504's standards apply.1

First, the ASC permitted

carry a reduced credit load.

took, one

was

a "mini-course"

Of the four courses

in

which the

final

examination was

scheduled prior to the

regular exam period.

The grade in another course was based solely on written work.

This left two courses in which Murphy was required to sit for

standard

examinations.

received,

an

extra

Finally,

hour

in

Murphy

which

to

requested,

and

complete

her

examinations.

We

find that

Center's obligation to

Murphy.

Besides

these

measures

satisfied

the

Law

provide reasonable accommodations

resting and

being awake

for three

to

hours

before reading, the only recommendation made by Dr. Sebestyen

relevant to

test-taking was

that Murphy

read in blocks

of

time no greater than two to three hours and that her tests be

scheduled

there

is

at three-day

no

intervals.

evidence

that

We note

Murphy's

initially that

fifth

semester

examinations were

arranged in a manner

contrary to Murphy's

____________________

1.

Because

Murphy never

diplopia was
after

informed the

interfering with

the end of her

Law Center

her ability to

fourth semester, it

with notice of this handicap before then.

F.2d

at

institution

795

(to

be

must have,

liable

under

or reasonably

that the

perform until

is not chargeable
See Wynne II, 976
___ ________
504,

an

academic

be expected

to have,

knowledge of a student's disability) (citation omitted).

-8-

proposed schedule.

Thus, it appears

that she had sufficient

time between her examinations to permit her to rest her eyes.

As for

the extra

examinations, Murphy

accommodation

duration

of finals

concludes,

by

was

hour for

the completion

complains that the only

to

lengthen

the

to

four

five

to

of her

effect of this

three-

to

hours.

four-hour

Thus,

she

she was forced to exceed the limits placed on her

Dr. Sebestyen.

However,

Dr. Sebestyen

never indicated

that Murphy

required more than the usual time for completing

____

her tests.

Thus, instead of using the extra hour to complete

the

examinations, we perceive no reason why Murphy could not

have taken the additional hour to rest her eyes

or to sleep,

thereby following Dr. Sebestyen's specific advice.

Murphy

oral

also emphasizes

that she

examinations as she had asked.

response

to

this request

and

in

never was

given

According to Murphy, in

an

apparent

effort

to

understand the effects of Murphy's diplopia, the ASC arranged

for a second Evidence

Due

examination to be administered orally.

to a mix-up, however, the test

Murphy

took it.

semester, it

When the ASC

nonetheless was

was in written form when

set the terms

under the

for the fifth

mistaken impression

that the exam had, in fact, been oral.

We

probative

diplopia.

do

of a

not

find

failure

Simply, there

the want

reasonably to

is

of

oral

examinations

accommodate Murphy's

no evidence

that

Murphy had

-9-

difficulty reading for two or three hour time periods or that

her comprehension was

to

hearing,

her

reduced by having to read,

examinations.

recommended

oral

examinations

refrain from
_______

reading altogether.

Dr.

or

as opposed

Sebestyen

suggested

that

In short, Murphy

never

Murphy

has not

shown that

her performance would have

improved through oral

exams; that is, she has not shown that she would be otherwise

qualified if tested orally.

Murphy further

argues

that by

requiring

her

to

maintain a 2.3 grade point average in the fifth semester, the

ASC

had

demanded

more

students (who needed

this regard, Murphy

the

end of

Center's

decision

than

semester was

requirement.

Murphy's

often required

higher than the minimum.

of

non-probationary

only a 2.0

points out that

upholding

probation were

her

to maintain

the fifth

minimum

of

The

average).

her overall average

2.05 --

faculty

dismissal

that

to have grade

In

at

above the

Law

noted in

its

students

on

point averages

Murphy did not submit any evidence showing that she

was

singled out or that

for

discriminatory

the ASC demanded

reasons.

probationary terms is not

Law

Center failed

McGregor,
________

F.3d

student's

G.P.A.

was

requiring

special

sufficient to demonstrate that the

adequately

at

Merely

the higher G.P.A.

858

above

to accommodate

n.9,

860

(where

the minimum

-10-

Murphy.

See
___

disabled

law

imposed

on

non-

probationary students, but below the G.P.A.

terms of

his probation,

to let him

504 did not require the law school

proceed to his next year).

still failed

provision

to comply

that a

set forth in the

In any event, Murphy

with the generally

student have

not more

applied academic

than nine

credits

below a C-.

Murphy's

district court

most

emphatic

argument

erred in assigning the

is

that

the

burdens of production

and persuasion that the parties must meet in a Rehabilitation

Act claim.

She correctly notes that the circuits are divided

on this question.

One

camp holds that

the plaintiff

must

make a prima

facie showing

participate in the program

made.

The

burden then

that she would

be qualified

to

if reasonable accommodations were

shifts to the

defendant to

produce
_______

evidence that reasonable accommodations were made and/or that

the

plaintiff's

requested

interfere with the quality

that

accommodations

would

unduly

or integrity of the program.

At

point, the burden shifts back to the plaintiff to rebut

that evidence or show

that the institution's actions

pretext for discrimination.

Commuter R. Co.,
_________________

951

See, e.g., Teahan v. Metro-North

_________ ______
___________

F.2d 511,

515-16

(2d

Another camp places on the defense the burden of

rather than production.

were a

Cir.

1991).

persuasion,
__________

See, e.g., Pushkin v. University of

__________ _______
_____________

Colorado, 658 F.2d 1372, 1387 (10th Cir. 1981).

________

This circuit

has never squarely addressed the issue.

-11-

Murphy

applied

standard.

argues

that

the production standard

But under

the

district

rather than

any standard

she

court

wrongly

the persuasion

must, at

the very

least, make a sufficient

qualified

with

the

prima facie case that she

aid

of

oral

examinations,

would be

the

requested accommodation that the school did not provide.

we

noted earlier, she did

tests

they

were administered

did not require

without a break.

performance

not make that

at intervals

her to read for

There is no reason to

would improve if

showing.

of several

only

As

Murphy's

days, and

more than three hours

think that Murphy's

she were not

required to take

written examinations at all.

IV.
__

The fact

that the ASC might

considered the effects

what

accommodations

CONCLUSION
__________

of Murphy's

to

provide

not have specifically

diplopia in

does

not

mean

determining

that

the

accommodations

she actually

within the meaning of

matter

of law,

504.

Murphy

received were

not "reasonable"

We therefore conclude that,

was not

otherwise

as

qualified for

retention as a student at the Law Center.

That is, even with

the accommodations

she was

provided by

the ASC,

unable to

meet both the Law Center's degree requirements and the

terms

of her probation.

The judgment of the district court is affirmed.

________

-12-