13 F.3d 823 (4th Cir. 1994), 92-2378, Pandazides v. Virginia Bd. of Educ.

Docket Nº:92-2378.
Citation:13 F.3d 823
Party Name:Sofia P. PANDAZIDES, Plaintiff-Appellant, v. VIRGINIA BOARD OF EDUCATION, Defendant-Appellee. Equal Employment Advisory Council, amicus curiae.
Case Date:January 14, 1994
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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13 F.3d 823 (4th Cir. 1994)

Sofia P. PANDAZIDES, Plaintiff-Appellant,

v.

VIRGINIA BOARD OF EDUCATION, Defendant-Appellee.

Equal Employment Advisory Council, amicus curiae.

No. 92-2378.

United States Court of Appeals, Fourth Circuit

January 14, 1994

Argued Oct. 1, 1993.

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John Miller West, Bredhoff & Kaiser, Washington, DC, argued (Jeremiah H. Collins, Bredhoff & Kaiser, Washington, DC, Steven David Stone, Alexandria, VA, on the brief), for plaintiff-appellant.

Joan W. Murphy, Asst. Atty. Gen., Office of the Attorney General, Richmond, VA, argued (Stephen D. Rosenthal, Atty. Gen. of Virginia, Jessica S. Jones, Acting Deputy Atty. Gen., Paul J. Forch, Sr. Asst. Atty. Gen., Office of the Attorney General, Richmond, VA, on the brief), for defendant-appellee.

Robert E. Williams, Douglas S. McDowell, Ann Elizabeth Reesman, McGuiness & Williams, Washington, DC, for amicus curiae.

Before ERVIN, Chief Judge, PHILLIPS, Circuit Judge, and SPROUSE, Senior Circuit Judge.

OPINION

ERVIN, Chief Judge:

Sofia Pandazides brought this action against the Virginia Board of Education ("the Board") alleging discrimination on the basis of handicap in violation of Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C.A. Sec. 794 (West Supp.1993). Concluding that Pandazides was not "otherwise qualified" for the position of school teacher under Sec. 504, the district court granted summary judgment for the Board. 752 F.Supp. 696 (E.D.Va.1990). Pandazides appealed, and this court reversed and remanded. 946 F.2d 345 (4th Cir.1991). Following remand, the Board moved to strike Pandazides' request for a jury trial, contending that there was no statutory or constitutional right to a jury trial for claims brought under Sec. 504. Following a hearing on this issue on August 14, 1992, the district court granted the motion. A bench trial was held on August 31 and September 1, 1992, and the district court entered judgment in favor of the Board. 804 F.Supp. 794 (E.D.Va.1992). Pandazides appeals on the sole question of the availability of jury trial under Sec. 504. Because we hold that a jury trial is available under Sec. 504 and that Pandazides properly requested relief of a type that triggers this requirement, we reverse and remand for further proceedings.

I.

A.

The facts of this case are set forth in detail in our prior opinion, and we recite them here only briefly. Sofia Pandazides graduated from Potomac High School in Woodbridge, Virginia in 1983, and subsequently enrolled in Ferrum College. After one year, she transferred to Longwood College, from which she graduated in 1988. Pandazides attended Longwood because of its reputation

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for training teachers, an occupation that was her career desire and the occupation of several members of her family. While her first year at Longwood was difficult, by graduation she attained a grade point average of 2.7 (on a scale of 4.0) overall and of 3.4 in teaching special education, her major. She also attained Dean's List her last semester at Longwood, and was rated highly in her two semester teaching practicum and student teaching assignments.

In September, 1988, Pandazides accepted an offer to teach emotionally disturbed children at Woodbridge Middle School in the Prince William County, Virginia school district. Virginia requires public school teachers to be certified, as part of which an applicant must attain certain scores ("cut scores") on the various components of the National Teacher Examination ("NTE"), a standardized examination administered by the Educational Testing Service ("ETS"). Recent graduates, however, may begin teaching prior to passing the NTE pursuant to a one-year, non-renewable, probationary certificate. Thus, although Pandazides had not yet passed the NTE, she was employed with renewal of her contract conditioned upon achieving the cut scores on the NTE.

Although the assistant principal's evaluations over the course of the year indicated that she needed improvement in several categories, he told Pandazides that he was very pleased with her teaching as a first-year teacher. Because she had still not passed the NTE by the opening of the next academic year, the school district requested a special waiver from the Board to permit the district to employ her as a "substitute" teacher. This request was granted for a 90-day period, at the end of which the school requested and received permission to extend her employment through the academic year.

Although labeled a "substitute" teacher, Pandazides' responsibilities in the classroom were identical to those of a "regular" teacher. The assistant principal evaluated Pandazides during this second year, and in her Teacher Evaluation Report at the end of the school year he gave her an overall rating of "E", or effective, the higher of the two categories available. She also received the honor of being selected Woodbridge Middle School's "PTO Teacher of the Month" for February, 1990, and received a letter of congratulations from the principal. Nevertheless, Pandazides still had not passed the NTE by the end of the academic year, and the Prince William County School Board did not reemploy her for the 1990-91 academic year due to her failure to receive certification.

As noted above, the Commonwealth of Virginia requires that prospective teachers obtain certain scores 1 on the NTE before they can be certified to teach in Virginia. The NTE comprises two categories of tests, the Core Battery and Specialty Area tests. The Core Battery itself is composed of three separate tests: Communication Skills, General Knowledge, and Professional Knowledge, with each test having subparts covering more particularized skills. Despite this requirement, the pamphlet the Board distributes describing certification regulations for teachers indicates that modifications in certification requirements can be made in exceptional and justifiable cases, and the Board's pamphlet describing the NTE indicates that if an applicant has a handicap that is of a severity that invalidates the test, the individual will not be required to take that portion of the exam. It is quite clear from the language of the pamphlet that learning disabilities are included in the category of conditions that allow waiver where shown to be appropriate. Waiver can be obtained only through a request to the Board, while special arrangements for testing conditions are made through the Educational Testing Service.

At the time she initiated this suit, Pandazides had passed the General Knowledge and Professional Knowledge units of the Core Battery, 2 but she had not made the cut score established by Virginia on the Communication Skills exam. 3 Between June 1987 and

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October 1988, Pandazides took the exam six times to no avail. Because she began to believe, based on a letter she had received from her faculty mentor at Longwood, that she suffered from a subtle learning disability that impaired her ability to perform under the pressurized conditions of the standardized examination environment, Pandazides requested a waiver of the Communication Skills portion of the NTE from the Board. The Board refused to grant such a waiver but referred her to ETS to attempt to make special arrangements to take the exam. Following a series of correspondence, Pandazides requested the test be administered under conditions allowing her to read as well as listen to the material with no set time restrictions. ETS refused this request, but offered more limited modifications, including a separate room in which to take the test, fifty percent more time, a script of the listening portion, and a special tape player that allowed the replaying of the listening portion at a slower rate with no vocal distortion. She took the test under these conditions, as well as under the standard conditions, and failed both times.

Pandazides then underwent a battery of psychological tests under the direction of Dr. Edwin N. Carter, a clinical psychologist who specializes in diagnosing and treating people with learning disabilities. He found that she "has learning disabilities associated with auditory attention, the integration of auditory-visual information and expressive language." In a subsequent declaration, he indicated that Pandazides suffers from three learning disabilities that limit her ability to input auditory information at the normal rate, affect her ability to read quickly, and limit her ability to make herself understood by using examples and paraphrasing her thoughts. While he believed that she was qualified to teach and that these disabilities would negligibly impact her in-class performance, they seriously impaired her ability to take a standardized test such as the NTE under most testing environments. Dr. Carter thus recommended to ETS certain procedures to compensate for Pandazides' handicap, including an untimed examination and the administration of the test by an examiner with whom Pandazides could interact. This request was rejected as "extraordinary." Shortly thereafter, Pandazides brought this action. 4

B.

In her amended complaint, Pandazides requested relief in the form of injunctions requiring that all acts of discrimination against her based on her disability cease; that the Board cease using "cut scores" (i.e., minimum passing scores) for people with disabilities, and that the test be administered in a non-discriminatory manner; that the Board "grant full benefits lost or denied, including retirement credits and credit for two years as a contract teacher with the Prince William County School Board"; and that the Board issue a teaching certificate to Pandazides forthwith. She also requested that she "be awarded all other permissible damages against Defendant, subject to her proof presented

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at...

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