162 F.3d 432 (6th Cir. 1998), 97-4041, Kaltenberger v. Ohio College of Podiatric Medicine

Docket Nº:97-4041.
Citation:162 F.3d 432
Party Name:Lisa KALTENBERGER, Plaintiff-Appellant, v. OHIO COLLEGE OF PODIATRIC MEDICINE, Defendant-Appellee.
Case Date:December 09, 1998
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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162 F.3d 432 (6th Cir. 1998)

Lisa KALTENBERGER, Plaintiff-Appellant,

v.

OHIO COLLEGE OF PODIATRIC MEDICINE, Defendant-Appellee.

No. 97-4041.

United States Court of Appeals, Sixth Circuit

December 9, 1998

Argued Oct. 29, 1998.

Page 433

Edward G. Kramer (argued and briefed), Colleen M. O'Toole (briefed), Kramer & Niermann, Cleveland, OH, for Plaintiff-Appellant.

John Kluznik (briefed), William H. Baughman, Jr. (argued and briefed), Weston, Hurd, Fallon, Paisley & Howley LLP, Cleveland, OH, for Defendant-Appellee.

Before: GUY, CLAY, and GILMAN, Circuit Judges.

OPINION

RALPH B. GUY, JR., Circuit Judge.

Plaintiff, Lisa Kaltenberger, appeals from the district court's entry of summary judgment in favor of defendant Ohio College of Podiatric Medicine (College) in this disability discrimination case. Plaintiff alleged that the College dismissed her from the program without reasonably accommodating her learning disability, in violation of § 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794; the Americans with Disabilities Act of 1990, 42 U.S.C. § 12182; and the Ohio Civil Rights Act, Ohio Rev.Code § 4112.022. Plaintiff has been diagnosed with Attention Deficit-Hyperactivity Disorder (ADHD). On appeal, plaintiff claims that the district court erred in granting summary judgment because there was a question of fact on the issue of reasonable accommodation.

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Our review of the record convinces us that no error occurred and we affirm.

I.

The defendant College is an accredited graduate school with the mission of educating and training doctors of podiatric medicine through a standard four-year curriculum. The College also offers a five-year curriculum to students with special academic and personal needs that require additional time and assistance to make the transition to a professional medical education. Plaintiff enrolled in the four-year program and began classes in August 1994.

On September 14, 1994, after reading a magazine article on adult attention deficit disorder, plaintiff told an academic counselor at the College that she believed she had ADHD. Plaintiff was referred to Case Western Reserve University Counseling Services (Counseling Services), which provided medical and mental health services for students of the Ohio College of Podiatric Medicine. After plaintiff was evaluated and tested in October 1994, the Counseling Services concluded there was no clear evidence of a learning disability, but offered her individualized counseling, and recommended that she seek some assistance with study skills. Plaintiff claims that because of this "mis-diagnosis" she did not seek any reasonable accommodations from the College until the end of the second semester. 1 Plaintiff failed her biochemistry class at the end of her first semester and was placed on academic probation.

Plaintiff had difficulties during the second semester as well. On May 8, 1995, about a week before the final examination in her physiology class, plaintiff gave the Dean of Academic Affairs, Dr. Vincent Hetherington, a handwritten note from Kornelia C. Solymos, M.D. The short note indicated only that plaintiff had been under her care for ADHD since April 21, 1995, and they were "trying different medications." Hetherington informed plaintiff that he could not accept this note because there was no indication of any basis for the diagnosis or Solymos' credentials for evaluating learning disabilities. A week later, on May 15, 1995, plaintiff took the final exam in physiology. She failed the course with the lowest grade out of 124 students based on her scores from four exams.

After the end of the semester, plaintiff provided Hetherington with a report by a clinical psychologist, Kent Rozel, Ph.D., who evaluated plaintiff, concluded she had ADHD and listed six recommended accommodations. At that time, plaintiff also permitted the Counseling Services to send its earlier report to Hetherington. After receiving these conflicting opinions, Hetherington referred plaintiff for evaluation by an independent clinical psychologist, Jill Winegardner, Ph.D. In her report dated June 29, 1995, Winegardner indicated that plaintiff had impaired attention span and organization inconsistent with her generally average intellectual abilities, which suggested "the presence of a diagnosable learning disorder." Winegardner also listed five recommended accommodations.

Before Winegardner conducted her evaluation, the College had dismissed plaintiff from the program for failing two courses. Plaintiff appealed the decision on the grounds that she had been diagnosed with ADD. 2 The Academic Appeals Committee, of which Hetherington was a member, considered the opinions and recommendations of both Rozel and Winegardner and reinstated plaintiff to the five-year program (which had a lighter course load during the first two years). The College required that plaintiff retake biochemistry and physiology and advised her that failure of any course would result in summary dismissal without the right to appeal. In addition to placing plaintiff in the five-year program, Hetherington informed her course coordinators that they were expected to provide plaintiff with the following accommodations: (1) individualized tutoring in each class; (2) a place to sit in the front of the class; (3) permission to tape lectures; (4) extra time on tests; and (5) the opportunity

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to take the tests in a separate room from other students. He also asked plaintiff to meet with an academic counselor and attend a study skills training program.

Plaintiff asked to retake biochemistry during the five-week summer session. Based upon his training and experience in podiatric medicine, consideration of the reports of Rozel and Winegardner, knowledge of plaintiff's situation and the importance of biochemistry as a foundation for an education in podiatric medicine, Hetherington did not permit plaintiff to take the abbreviated remedial course and required that she take the full four-month course during the fall semester.

In the fall of 1995, plaintiff had only three courses, including the repeat of the biochemistry course. Plaintiff did not meet with an academic counselor, did not attend small group tutoring sessions, and did not ask any of her instructors for individual tutoring. After four examinations in biochemistry, plaintiff failed the course by one point and ranked 106 out of 116 students. Pursuant to its policy, the College did not allow any re-examinations by students who were repeating a failed course. As a result, plaintiff was not permitted to retake the final exam and was dismissed from the College in January 1996.

In August 1996, plaintiff filed this action and asked the district court, by way of a motion for a temporary restraining order and preliminary injunction, to order the College to allow her to take classes during the litigation. The request for injunctive relief was denied. The parties conducted discovery and the College filed a motion for summary judgment. On August 6, 1997, the district court granted the motion and entered judgment in favor of the College....

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