Opposition Brief — McGuiness v. University of New Mexico School of Medicine

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\SONS WHY THE PETITION FOR WRIT

ERTIORARI] SHOULD NOT BE GRANTED

PETITIONER’S APPENDIX C SHOULD NOT!

BE CONSIDERED BY THIS COURT BECAUSI

IT WAS NEVER PART OF THE TENTH CIR

CUIT OR DISTRICT COURT RECORD AND I]

VAS NEVER ENTERED IN THIS CASI

CONTEMPLATED IN SUPREME COURT

RULE 14 (1)(:)(n

THE PETITION MISREPRESENTS THI

TENTH CIRCUIT’S CONSIDERATION

THIS COURT'S OPINION IN BRA ,

THIS COURT SHOULD NOT GRANT CER

PIORARI ON THE ISSUE OF THE TENTH

CIRCUIT’S CONSIDERATION OF MITIGAT

ING MEASURES BECAUSE, IN THIS CASE, I1

VAS CONSISTENT WITH THE APPLICABLI

REGULATIONS AND GUIDELINES

THIS COURT SHOULD NOT GRANT REVIEV

BECAUSI AS THE TENTH CIRCUIT COR

RECTLY DETERMINED, PETITIONER

REASONABLE ACCOMMODATIOD

CLAIM WAS UNREASONABLI

PETITIONER’S REQUEST FOR REVIEW BY

THIS COURT TO CLARIFY THE MEANING

OF EMPLOYMENT UNDER TITLE I OF THI

DA IS WITHOUT MERI l ¢

TABLE OF AUTHORITIES

Page

Casrs Cirep

Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct.

1598. 26 L.Ed.2d 142 (197@).. cs cscce eee eee eee 7

Argen v. New York State Board of Law Examiners, 860

F.Supp. 84 (WLDN.Y. YO96) 25 occ cis fees 14

Bartlett v. New York State Bd. of Law Examiners, 156

F.3d 3271 (2nd Cir, 1996) «cece ceueeussae rece eeees 14

Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 141

| Ed.2a 540 tiGG6). occ ccs tv vesseuer eae eee 7, 2

Clark v. Virginia Board of Bar Examiners, 861 F.Supp.

512 (E.D. Vic. 1994). oo. cco e cue een eees eee eee 14

Colwell v. Suffolk County Police Depi., 158 F.3d 635

(Ind Cir, 19908) .....vecocucseeescsee eee )

Ellis v. Morehouse, 925 F.Supp. 1529 (N.D.Ga. 1996) .... 14

Graves v. Women's Prof'l Rodeo Ass'n, 907 F.2d 71

(Sth Cir. 1990)... 2 <<%5 vow een eee eee eee . 16

Land v. Baptist Medical Center, 164 F.3d 423 (8th

Ciy. 1999) ...ccccvecvusctsevcuaehy eee veer ih

O'Connor v. Davis, 126 F.3d 112 (2nd Cir. 1997),

cert. denied, __ U.S. __, 118 S.Ct. 1048, 140

L.Ed.2d 112 (1996) ics cs c50s eects ee 16

Pack v. Kmart Corp., __ F.3d __, No. 97-7120, 1999

WL 51882 (10th Cir. Feb. 4, 1908). coo ees ce even eee 8

Petition of Rubenstein, 637 A.2d 1131 (1994).......... 14

Poindexter v. Atchison, Topeka, and Santa Fe Railway

Co., __ F.3d __, No. 97-3273, 1999 WL 92255

(10th Cir. Feb. 24, 1999) .. .vveesuvcuneueeeevenee ees 8

TABLE OF AUTHORITIES Continued

J oy f { LJ) , r | \/ higan } [ 174 |

14. 106 S.Ct. 507, 88 L.Ed.2d 523 (1985

Robinson v. Global Marine Drilling (¢ 101 F.3d

th Cir. 1996), cert. den U.S

P j a A i |

Cul y . cert. granted, 67 U.S.L.W. 3433 C

4

lan. 8. 1999) (No. 97-1973)

12 U.S.C. §§ 12 et

12 U.S.C. §§ 12111-12]

12 U.S.C. § 12112(b)(4

: US.4 S& 121

IK

28 CER. § 41.31(b)(2) (199 ;

29 \ ER. & le 30 %(h) (1998

29 © FR. & 1630.21) (1998 C

29 E.R. §& 1630.2())(1 |

STATEMENT OF THE CASE

The case described and argued by Petitioner in the

Petition For Writ Of Certiorari misrepresents the case and

facts presented to the Tenth Circuit Court of Appeals and

the United States District Court for the District of New

Mexico. Petitioner was admitted to the University of New

Mexico School of Medicine in 1992. Prior to his admis-

sion, he obtained a Bachelor of Science degree in chemis-

try and biology, a degree in physiological psychology,

and a doctorate in psychology. He had worked as a

forensic chemist for the DEA, and he continued to work

as a clinical psychologist during medical school. On

November 27, 1995, Petitioner filed a verified complaint

in the United States District Court for the District of New

Mexico. In the complaint, Petitioner asserted a claim

under the Americans with Disabilities Act (ADA) for

denial of a reasonable accommodation. In his verified

complaint he asserted that he suffered from “an anxiety

disorder;” that he was “substantially limited in one major

,

life activity;” that he “sought reasonable accommoda-

tion . . . in the context of test anxiety;” and that the

Respondent failed to “make reasonable accommodation”

for his known disability, all in violation of the Americans

with Disabilities Act (ADA). He further asserted that he

“achieved an acceptable final overall average” and “an

acceptable passing grade” in the Basic Biochemistry

Block. He then claimed that, despite having achieved a

passing grade, he “received an overall grade of marginal”

that was “contrary to the prevailing grading standards”

and the award of that “marginal” grade prevented him

from continuing his second year in medical school.

5

At the District Court level, Respondent moved for

summary judgment. Petitioner attempted to add, via his

response to the Respondent’s motion for summary judg-

ment and a combined counter-motion for summary judg-

ment, two new claims: (1) one under the Rehabilitation

Act of 1973 (29 U.S.C. § 701) and (2) another for “associa-

tion discrimination” under the ADA (42 U.S.C. §§ 12101

et seq.). He also tried to separate his “reasonable accom-

modation” claim into both a Title I and Title II claim. See:

42 U.S.C. §§ 12111-12112 and 42 U.S.C. §§ 12131-12132.

The District Court found that Petitioner was not disabled

within the meaning of the ADA and granted summary

judgment in favor of the Respondent. The District Court

also ruled on the “association discrimination” claim,

holding that Petitioner had not stated a cause of action

under 42 U.S.C. § 12112(b)(4) because he was not an

employee of the medical school and that he had not

shown that he was discriminated against because of his

association with his disabled son.

On appeal, Petitioner argued that disputes of mate-

rial fact existed on the issues related to Petitioner’s dis-

ability, his entitlement to a reasonable accommodation,

the medical school’s grading policy, whether he was an

employee of the medical school, and the “association

claim.” The Tenth Circuit Court of Appeals determined

that Petitioner’s disorder, as he described it, does not

constitute a disability under the ADA, and affirmed dis-

missal of the Title II and Rehabilitation Act claims. On the

question of the “reasonable accoramodation claim,” the

Tenth Circuit determined that Petitioner could not

“demand an unreasonable accommodation from the med-

ical school” and then claim a violation of the ADA based

on denial of such an accommodation. The Tenth Circuit

also held that because Petitioner’s accommodation claim

was unreasonable, summary judgment would have been

appropriate even if Petitioner had shown a disability

under the ADA. As to any possible claim under Title I,

the Tenth Circuit determined that Petitioner was not an

employee of the medical school nor had he satisfied the

discrimination element of 42 U.S.C. § 12112(b)(4).

The facts upon which the District Court and the

Tenth Circuit based their determinations and findings are

a matter of record and are clearly stated in their respec-

tive opinions. Petitioner’s rendition of the “facts,” in his

petition, includes unsupported statements, incomplete

statements of fact, and new allegations. The medical

school was informed by the Petitioner of his “test-anxi-

,

ety” at the beginning of the basic biochemistry course

and was also informed that he did not require any test-

taking accommodations. It was suggested that he visit

with the medical school’s clinical psychologist about his

“test-anxiety.” He was informed of the grading policy for

the basic biochemistry course. As to the remaining “facts”

found in the petition, they are clear misstatements. Peti-

tioner asserts that his disorder is related to learning in the

specific subject areas of chemistry and mathematics, but

testified that he does not claim to have a learning disabil-

ity. He claims to have “achieved an acceptable final over-

all average” and “an acceptable passing grade” in basic

biochemistry despite his disorder. The “reasonable

accommodation” that he states he requested, but was

denied, was that the professor set a clear grading stan-

dard for the course, that he not “deviate from their gra-

ding policy,” and that he not regard him as lazy. The

rading policy provided to the District Court by the

Respondent was textually correct.

[he determinations, findings, and law relied upon by

the District Court and the Tenth Circuit are set forth in

their respective opinions. In Petitioner’s verified com-

plaint, the name for the disorder that he claims was not

reasonably accommodated was “test-anxiety.” Contrary

to his assertion, the court did not rename his disorder.

[he District Court did determine that Petitioner’s

“impairment” of “feeling test anxiety in two discrete

subjects matters that do not require special accommoda-

tions in testing situations is neither significant nor

severe.” The District Court also determined that “there

has been no permanent impact resulting from the impair-

ment that has prevented him from getting a degree in

chemistry and psychology or from obtaining extremely

profitable employment.” The District Court and the Tenth

Circuit assessed whether the Petitioner’s impairment sub-

stantially limited a major life activity using a number of

factors, including his ability to mitigate his anxiety in

chemistry and math by altering his study habits. Based

on the record from the District Court, the Tenth Circuit

Court of Appeals determined that “an impairment lim-

ited to specific stressful situations,” is not a disability

under the ADA or the Rehabilitation Act. The Tenth

Circuit also determined that Petitioner’s “reasonable

accommodation” claim of requesting that a professor not

deviate from a grading policy, and then requesting a

grade change on the belief that the policy was not fol-

lowed, was unreasonable.

REASONS WHY THE PETITION FOR WRIT OF

CERTIORARI SHOULD NOT BE GRANTED

The Petition for Writ of Certiorari should not be

granted because this case raises no compelling issues that

warrant review by this Court. Petitioner’s questions pre-

sented and the arguments in support do not raise any

compelling reasons for granting the writ. For the most

part, Petitioner’s asserted reasons for review are based on

asserted errors by the Tenth Circuit and the District Court

relating to factual findings and the application of a prop-

erly stated rule of law. Petitioner has attempted to raise

new issues and facts, in his petition, that were not raised

or presented to the courts below. Petitioner’s arguments

regarding the misapplication of the law, by the Tenth

Circuit and the District Court, applicable to his disability

and denial of a reasonable accommodation claim(s) are

based on a fundamental misunderstanding of the law

surrounding the ADA. Petitioner’s questions presented

and arguments in support, as related to his alleged

employment status, the related Title I claim(s), and the

Respondent's grading policy, are all without merit. For

these reasons and those stated below, this Court should

not grant the Petition for Writ of Certiorari.

A. PETITIONER’S APPENDIX C SHOULD NOT

BE CONSIDERED BY THIS COURT BECAUSE

IT WAS NEVER PART OF THE TENTH CIR-

CUIT OR DISTRICT COURT RECORD AND

IT WAS NEVER ENTERED IN THIS CASE AS

CONTEMPLATED IN SUPREME COURT

RULE 14(1)(i)(ii)

Even after having been admonished in an order of

the Tenth Circuit Court of Appeals for attempting to

include in the appellate appendix in this case evidence

and documents that were not part of the district court’s

record, Petitioner now seeks to do the same in this Court.

[he document found in Petitioner’s Appendix C was

never part of the record before the District Court or the

fenth Circuit Court of Appeals. It was never made a part

of this case by the Petitioner. The document was never

entered in this case by any court or administrative agency

as contemplated by Supreme Court Rule 14(1)(i)(ii). Pur-

suant to Supreme Court Rule 26(2), submission to this

Court of the document found in Appendix C would not

be allowed if this petition were granted. Its inclusion in

the petition is inexcusable and should preclude any

review of the petition for the Writ of Certiorari by this

Court.

B. THE PETITION MISREPRESENTS THE

TENTH CIRCUIT’S CONSIDERATION OF

THIS COURT’S OPINION IN BRAGDON VS.

ABBOTT

The Tenth Circuit’s analysis of whether Petitioner’s

mental impairment substantially limited a major life

activity was consistent with this Court’s opinion in Brag-

don v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 141 L.Ed.2d 540

(1998).' Petitioner’s claim of errors by the Tenth Circuit

' Petitioner’s attempt to have this court consider the

matters and statements found in Appendix C is improper.

Appendix C was never part of the record below. As such, issues

related to Appendix C could never have been considered by the

Tenth Circuit in its opinion or review. Generally, this Court does

not consider matters raised for the first time in a petition for

highlights his fundamental misunderstanding of the ADA

and the process, as set forth by this Court in Bragdor and

followed by the Tenth Circuit in this case, for consider-

ation of whether or not an individual has a disability

under the ADA. Id. at 2202. The District Court and the

Tenth Circuit, as was undisputed by the parties, deter-

mined that Petitioner had an “impairment.” Contrary to

Petitioner’s assertion in his Petition for Writ of Certiorari

(pages 17-22) of “irrational prejudice” and “stereotyping”

on the part of the Tenth Circuit and the District Court, his

“anxiety disorder” was recognized as a “mental impair-

ment” as defined by the ADA. (Tenth Circuit Opinion at

p. 5, Petitioner’s Appendix A at 11-VIII). Petitioner’s

misunderstanding appears to be based on the erroneous

assumption that a finding of a “mental impairment” ter-

minates further analysis, by a court, for a finding of a

“disability” under the ADA.?

The next step for the District Court and the Tenth

Circuit was to determine whether or not the life activity

upon which the Petitioner relies constitutes a “major life

activity.” As this Court recognized in Bragdon and the

Tenth Circuit cited in its opinion, in order to be consid-

ered a major life activity, that activity must be significant.

Writ of Certiorari. See: Adickes v. S.H. Kress & Co., 398 U.S. 144,

147, n.2, 90 S.Ct. 1598, 1602, n.2, 26 L.Ed.2d 142 (1970).

Petitioner’s submission of Appendix C and attempt to assert

issues for review related to it is conduct inconsistent with the

rules of this Court and of Appellate procedure.

2 Petitioner has asserted that he has a “anxiety disorder

related to learning.” That assertion only provides for a finding

of a possible “mental impairment,” as defined by 29 C.F.R.

§ 1630.2(h) (1998).

Braedon, 118 S.Ct. at 2202. Petitioner never specified

exactly what “major life activity” he claimed was sub-

stantially limited by his impairment. The District Court

and the Tenth Circuit looked at the facts in their attempt

to discern the “activity” that Petitioner was claiming. The

District Court found that Petitioner’s alleged activity was

“rather hazily defined” and defined it as the ability to

demonstrate competence in the specific subject areas of

chemistry and mathematics in exam settings. (District

Courts Opinion at p. 5 and Appendix B at 12-VII). The

lenth Circuit, relying on the District Court's attempt to

discern what Petitioner was relying on as the “major life

activity,” defined the activity as “academic functioning.”

(Tenth Circuit Opinion at p. 8 and Appendix B at 11-IX).*

Petitioner’s alleged activity, as defined by the District

Court and the Tenth Circuit, is not related to any of the

activities listed in the ADA and Rehabilitation Act regula-

tions. (See: 45 C.F.R. § 84.3(j)(2)(ii) (1997); 28 C.E.R.

§ 41.31(b)(2) (1997) and 29 C.F.R. § 1630.2(i) (1998).

While test-taking may be a component of academic

functioning and all-around academic functioning might

be considered a “major life activity,” subject-specific test-

taking 1s not an activity in and of itself. (See: Pack v. Kmart

Corp., F.3d , No. 97-7120, 1999 WL 51882, at *3

(10th Cir. Feb. 4, 1999) and Poindexter v. Atchison, Topeka,

and Santa Fe Railway Co., F.3d _, No. 97-3273, 1999

WL 92255, at *3-4 (10th Cir. Feb. 24, 1999). Proficiency at

Petitioner’s failure to specifically plead or define the

‘major life activity” upon which he relies is a fatal defect and

hould preclude any further consideration of this case by this

( gurt

Y

taking tests in any one subject matter is not worthy of

inclusion under the statutory definition of “major life

activity” under the ADA. Contrary to Petitioner’s asser-

tion, the Tenth Circuit expressly acknowledged that it

had to look beyond the public, economic, and daily

dimensions to determine the significance of the activity

and its comparative importance. (Tenth Circuit Opinion

at p. 7, Petitioner’s Appendix A at 11-VIII). The District

Court and the Tenth Circuit properly determined that the

activity of taking tests in two specific academic subject

areas is neither significant nor “major” as contemplated

by this Court’s holding in Bragdon. The diminished ability

to demonstrate proficiency in a specific subject matter

may touch on a component of a “major life activity,” but

standing alone it is “insufficiently fundamental.” See: Col

well v. Suffolk County Police Dept., 158 F.3d 635, 642 (2nd

Cir. 1998). If claimants were allowed to define a “major

life activity” in such a narrow way, it would defeat the

intent of the ADA. Id. at 642. Without specifically ruling

as to whether or not it (academic functioning as related

specifically to test-taking in a basic biochemistry course

in medical school) constituted a “major life activity,” the

District Court and the Tenth Circuit moved on to the

third step of the analysis.

Petitioner’s allegation of error by the Tenth Circuit

and the District Court, as can best be discerned from his

petition to this Court, is really based on the application

by those courts of the third step in the analysis of disabil-

ity under the ADA. As this Court stated in Bragdon, 118

S.Ct. at 2202, the third step for a court is to ask, “tying

the two statutory phrases together,. . . . whether the

10

impairment substantially limited the major life activity.”

In that regard, the District Court made that determination

of law using the factors found in 29 C.ER. § 1630.20(2).

As to the nature and severity of Petitioner’s impairment,

the District Court concluded that “feeling test anxiety in

two discrete subject matters that do not require special

accommodations in testing situations is neither signifi-

cant nor severe.” (District Court Opinion at p. 5 and

Appendix B at 12-VII). As to the remaining factors, the

District Court could find no permanent or long-term

impact resulting from his impairment related to the sub-

ject areas of chemistry and mathematics. It was impossi-

ble for the District Court, when considering these factors,

to overlook the fact that Petitioner has an undergraduate

degree in the specific subject in which he claims his

impairment manifests itself during testing situations. The

District Court’s conclusion that his impairment had not

prevented him from obtaining undergraduate and gradu-

ate degrees or from profitable employment demonstrates

that there has been no substantial limitation on Peti-

tioner’s ability to demonstrate competence in a variety of

subject matters or on the “major life activity” of working.

Such a determination goes to both the nature and severity

of the impairment and the permanent or expected long-

term impact of such an impairment. (See: 29 C.ER.

§ 1630.20(2)).

The Tenth Circuit looked at the same factors. (Tenth

Circuit Opinion at p. 7, Petitioner’s Appendix A at 11-

VIII and 11-IX) As the Tenth Circuit correctly determined,

had Petitioner demonstrated that his impairment

impeded his performance in a wide variety of disciplines

or affected him in all testing situations, that might (like

1]

having an impairment that prevented a person from

working at a variety of jobs) be significant and funda-

mental. The Tenth Circuit went further and looked at the

“actual effect” of Petitioner’s impairment on his first-year

of medical school and correctly concluded that the fact

that his “poor performance did not require that he leave

the program” and “he could have repeated the first year”

negated a finding of disability under the ADA. Contrary

to Petitioner’s assertion of error, consideration of the

actual effect of an impairment on a life activity is pivotal

to the ADA disability analysis. (See: Land v. Baptist Medi-

cal Center, 164 F.3d 423, 424-425 (8th Cir. 1999) and Robin-

son v. Global Marine Drilling Co., 101 F.3d 35, 37 (5th Cir.

1996), cert. denied, ___ U.S. ___, 117 S.Ct. 1820, 137 L.Ed.2d

1028 (1997)). Having to study harder to achieve success in

certain academic subjects is not, by any standard, a sig-

nificant or substantial effect on a person’s life.

Even if the Tenth Circuit had used 29 C.F.R.

§ 1630(j)(1) instead of 29 C.F.R. § 1630.20(2) in its analysis,

the result would have been the same. (See: Land v. Baptist

Medical Center, 164 F.3d 423, 424-425 (8th Cir. 1999). 29

C.F.R. § 1630(j)(1) uses performance or significant restric-

tion in comparison to the general population to define the

term “substantially limits.” The facts demonstrate that

Petitioner is clearly able to perform on exams involving

mathematics and chemistry as well as the average person

in the population. The average person does not have an

undergraduate degree in chemistry and a Ph.D. in psy-

chology. The average person in the population does not

find themself in medical school taking basic biochemistry

exams. The facts demonstrate that Petitioner is also not

significantly restricted (as to the condition, manner or

12

duration) in his performance in chemistry and mathema-

tics exams as compared to the average person. Applica-

tion of the Tenth Circuit’s determination that Petitioner

had failed to “demonstrate that his anxiety impedes his

performance in a wide variety of disciplines,” would not

have led to any different conclusion had it been analyzed

under 29 C.F.R. § 1630.2(j)(1). The Tenth Circuit correctly

decided that Petitioner does not have a qualifying disabil-

ity under the ADA. Review by this Court is not war-

ranted.

C. THIS COURT SHOULD NOT GRANT CER-

TIORARI ON THE ISSUE OF THE TENTH

CIRCUIT’S CONSIDERATION OF MITIGAT-

ING MEASURES BECAUSE, IN THIS CASE, IT

WAS CONSISTENT WITH THE APPLICABLE

REGULATIONS AND GUIDELINES.

Contrary to Petitioner’s assertions of error and his

questions presented, as they relate to the determination

of a “disability” and the consideration of mitigating mea-

sures, the Tenth Circuit’s treatment in this case was

entirely consistent with the applicable regulations and

the EEOC’s guidelines. Those guidelines indicate that the

“determination of whether an individual is substantially

limited in a major life activity” must be made “without

regard to mitigating measures such as medications, or

assistive or prosthetic devises.” 29 C.F.R. Pt. 1630 App.

§ 1630.2(j). The Fifth Circuit Court of Appeal, in Washing-

ton v. HCA Health Services of Texas, Inc., 152 F.3d 464, 471

(1998), determined that “whether mitigating measures

should be taken into account must be determined on a

case by case basis.” Consideration of the past, present,

and future effect of an impairment is necessary in order

13

to determine the nature, severity, condition, manner,

duration, or long-term impact of an impairment on a

major life activity —- especially in a case like this where

subject-specific academic functioning is at issue. Studying

harder as a measure to ameliorate the impact of an

impairment is not like taking a medication or using a

prosthetic device. It is not outside the ordinary or aver-

age for an individual to study harder for one academic

subject in order to achieve satisfactory performance in

that subject. While it is true that there is division in the

circuits as to use of mitigating measures as contemplated

in 29 C.F.R. Pt. 1630 App. § 1630.2(j), this case, contrary to

Petitioner’s assertions, does not touch on those types of

inquiries.4 Petitioner’s record of academic achievements,

the lack of need for accommodations, and his success in

working in the field of chemistry is not, as Petitioner

asserts, a history of mitigation measures. It is, however, a

history of no permanent or severe impact on any life

activity, major or minor. Inquiry into the past, present,

and future impacts of an impairment, as used to assess

whether Petitioner’s impairment substantially limits an

unspecified activity (subject-specific academic function-

ing) is consistent with the regulations. (See: 29 C.F.R. Pt.

1630 App. § 1630.2(j); 29 C.F.R. § 1630.20(2); and 29 C.F.R.

4 Respondent acknowledges that this Court is in the

process of reviewing the use, by courts, of mitigating measures

as contemplated in 29 C.F.R. Pt. 1630 App. § 1630.2(j). (See:

Sutton v. United Airlines, Inc., 130 F.3d 893 (10th Cir. 1997), cert.

granted, 67 U.S.L.W. 3433 (U.S. Jan. 8, 1999) (No. 97-1973).

However, this case is much different than those under review

and, even if this Court were to determine that mitigating

measures should not be considered, such a decision would not

change the outcome in this case.

14

§ 1630.2(j)(1)). Such an inquiry is an essential part of the

comparative importance and average person analysis

mandated by these regulations and guidelines. The Tenth

Circuit’s consideration of Petitioner’s impairment, and

their attempt to find some past or present substantial

impact or limitation on a life activity, were both proper

and do not warrant review by this Court.

D. THIS COURT SHOULD NOT GRANT

REVIEW BECAUSE, AS THE TENTH CIRCUIT

CORRECTLY DETERMINED, PETITIONER’S

“REASONABLE ACCOMMODATION”

CLAIM WAS UNREASONABLE.

Petitioner has misrepresented his claim as it relates to

the alleged denial of a reasonable accommodation. Func-

tionally, Petitioner’s claim is nothing more than a simple

grading dispute disguised as an ADA claim. Petitioner’s

claimed theory of “reasonable accommodation” flies in

the face of every decision regarding a failure to provide a

reasonable accommodation in the academic setting. See:

Bartlett v. New York State Bd. of Law Examiners, 156 F.3d

321 (2nd Cir. 1998); Argen v. New York State Board of Law

Examiners, 860 F.Supp. 84 (W.D.N.Y. 1994); Petition of

Rubenstein, 637 A.2d 1131 (1994); Ellis v. Morehouse, 925

F.Supp. 1529 (N.D.Ga. 1996); Wynne v. Tufts University

School of Medicine, 932 F.2d 19, 26 (1st Cir. 1991) and Clark

v. Virginia Board of Bar Examiners, 861 F.Supp. 512 (E.D.Vir.

1994).5

° In each one of these cases, there was substantial

documentation of impairments that substantially limited the

individual ability to learn, process information, or take tests in

—_

15

This Court in Regents of University of Michigan v.

Ewing, 474 U.S. 214, 225, 106 S.Ct. 507, 513, 88 L.Ed.2d 523

(1985) held that: “when judges are asked to review the

substance of a genuinely academic decision,. . . . they

should show great respect for the faculty’s professional

judgment” and that “plainly, [judges] may not override

[the faculty’s professional judgment] unless it is such a

substantial departure from accepted academic norms as

to demonstrate that the person or committee responsible

did not actually exercise professional judgment.” Peti-

tioner’s claimed accommodation request for his impair-

ment, that the medical school not “deviate from the

grading policy,” and the later claim of a denial of that

request and further request for a grade change, is nothing

more than a request for judicial review of the substance

of a genuinely academic decision. Petitioner’s request

that this Court hold that the Respondent’s grading policy

is illegal is further proof of the true nature of this case.

Petitioner’s real displeasure is centered on the medical

school’s grading policy and the exercise of professional

judgment that resulted in the assignment of a “marginal”

grade in basic biochemistry. Even more illustrative is

Petitioner’s new and unsupported allegation, in his peti-

tion, that he was assured that his evaluation in medical

school would not be based upon competition with others.

(See: Petition for Writ of Certiorari at p. 6) Competition

among students is at the heart of undergraduate and

graduate education. Contrary to Petitioner’s assertion of

all subjects, not just a specific subject. The “major life activities”

identified in those cases were not test-taking, but something

more fundamental like reading or processing written

information.

16

“Irrational prejudice” and “trivalization” on the part of

the Tenth Circuit, his shifting accommodation claims

were correctly decided by the Tenth Circuit and the Dis-

trict Court. Review, by this Court, of any of those claims

and those surrounding the grading policy is not war-

ranted

E. PETITIONER’S REQUEST FOR REVIEW BY

THIS COURT TO CLARIFY THE MEANING

OF EMPLOYMENT UNDER TITLE I OF THE

ADA IS WITHOUT MERIT.

Petitioner, as a medical student, is not employed by

the medical school and there was no evidence of a cogni-

zable employment relationship. There is no confusion or

division among the circuits, or any other courts, as to this

question that would warrant any review by this Court. As

the Tenth Circuit correctly concluded: “[U]nless a student

receives remuneration for the work he performs, he is not

considered an employee. (See: O’Connor v. Davis, 126 F.3d

112, 116 (2nd Cir. 1997), cert. denied, mn Wee, LIB S.C.

1048, 140 L.Ed.2d 112 (1998).” (See also: Graves v. Women’s

Prof'l Rodeo Ass'n, 907 F.2d 71, 72-73 (8th Cir. 1990)).

There is nothing in the record to show that Petitioner had

an employer-employee relationship with the Respondent

under any definition. Petitioner’s claims, based on Title |

of the ADA, cannot be considered in the absence of such

a relationship. This is not a matter worthy of this Court’s

review.

/

CONCLUSION

For the reasons given above, the Petition should be

denied.

Respectfully submitted,

Paut R. RitzMa

Counsel of Record

State of New Mexico, General Services De partment

Risk Management Division, Legal Bureau

Post Office Drawer 26110

Santa Fe, NM 87502-0110

(505) 827-2202