192 F.3d 807 (9th Cir. 1999), 98-15757, Wong v. The Regents of the University of CA.

Docket Nº:98-15757
Citation:192 F.3d 807
Party Name:ANDREW H.K. WONG, Plaintiff-Appellant, v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant-Appellee.
Case Date:September 16, 1999
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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192 F.3d 807 (9th Cir. 1999)

ANDREW H.K. WONG, Plaintiff-Appellant,



No. 98-15757

United States Court of Appeals, Ninth Circuit

September 16, 1999

        Argued and Submitted February 10, 1999--San Francisco, California

        Amended November 19, 1999

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        Dan Siegel and Hunter Pyle, Siegel & Yee, Oakland, California, for the plaintiff-appellant.

        Michael T. Lucey, Diane R. Crowley, and Greta W. Schnetzler, Gordon & Rees, San Francisco, California, for the defendant-appellee.

        Appeal from the United States District Court for the Eastern District of California; Lawrence K. Karlton, District Judge, Presiding, D.C. No. CV-96-00965-LKK GGH.

        Before: Phyllis A. Kravitch,1 Stephen Reinhardt, and Thomas G. Nelson, Circuit Judges.

        KRAVITCH, Circuit Judge:

        Plaintiff-appellant Andrew H.K. Wong appeals the district court's order granting summary judgment in favor of defendant-appellee Regents of the University of California ("the University") on Wong's claim that the University discriminated against him in violation of Title II of the Americans with Disabilities Act, 42 U.S.C. S 12132 ("the ADA") and section 504 of the Rehabilitation Act, 29 U.S.C.S 794.2 Wong alleges that the University violated the Acts when, after refusing to grant his request for accommodation of his learning disability, it dismissed him for failing to meet its academic requirements. The district court ruled that summary judgment was appropriate on two grounds: (1) the accommodation Wong requested was not reasonable, and (2) Wong was not qualified to continue his course of study in the School of Medicine because with or without accommodation, he could not perform the tasks required of an effective medical doctor. We conclude, however, that Wong created an question of fact with respect to both of these issues and that the district court therefore erred in granting the University's motion.

        I. FACTS3

        After excelling in his undergraduate and master's degree programs, Wong entered the School of Medicine at the University of California at Davis in the fall of 1989. The School of Medicine consists of a four-year curriculum: typically, in the first two

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years, students take academic courses in basic sciences; in the third year, they complete six consecutive clinical "clerkships" in core areas of medical practice; and in the fourth year, they take a series of more specialized clerkships. The clinical clerkships teach the students to integrate their academic knowledge with the skills necessary to practice medicine and test them on their progress in developing these skills.

        Wong completed the first two years of medical school on a normal schedule and with a grade point average slightly above a "B"; he also passed the required national board examination immediately following the second year. He began his third year on schedule, enrolling in the Surgery clerkship in the summer of 1991 and, upon its conclusion, in the Medicine clerkship. When he was approximately four weeks into the Medicine clerkship, Wong learned that he had failed Surgery. In accordance with school policy, Wong appeared before the Student Evaluation Committee ("SEC"), a body that meets with students having academic problems and makes recommendations to another group, the Promotions Board, which ultimately decides what action, if any, the school should take with respect to that student. The Promotions Board placed Wong on academic probation, decided that he should repeat the Surgery clerkship, and recommended that he continue in the Medicine clerkship at least until the midterm evaluation. Wong withdrew from the Medicine clerkship in November 1991 when his midterm evaluation showed significant problems with his performance to that point. Wong's instructor of record then assigned a senior resident to work with Wong one-on-one, focusing upon taking patient histories and making oral presentations. These sessions continued through the winter of 1992.

         In March 1992, Dr. Ernest Lewis, associate dean of student affairs, granted Wong's request to take time off from school to be with his father, who had just been diagnosed with lung cancer. Wong spent at least some of this time doing extra reading in preparation for his upcoming clerkships, Psychiatry and Pediatrics. He returned to school in July 1992 and between July and December passed clerkships in Psychiatry (with a "B"), Pediatrics ("C+"), and Obstetrics/Gynecology ("C"). Wong generally received positive comments on his final evaluation forms for these courses. Instructors noted that he was "competent," "prompt," "enthusiastic," "a very hard worker," and "an extremely pleasant student who related exceptionally well with the staff;" they also stated that he had "a good fund of knowledge," "contributed meaningfully to the discussions at hand," "made astute observations of patients," and "did a good job of presenting on [gynecology] rounds."4 Evaluators also observed, however, that Wong "seem[ed] to have difficulty putting things together" and "limited abilities to effectively communicate his thoughts," and they recommended that he work on "organizational skills " and "setting priorities."5

        Wong re-enrolled in the Medicine clerkship in January1993. Three weeks later, his father died, an event that by all accounts had a devastating impact on Wong. He continued in the Medicine clerkship for a brief period of time, but after his midterm evaluation showed a borderline performance in the first half of the clerkship, Wong, with Dean Lewis's approval, withdrew from the course and left the Davis campus to be closer to his family, who lived in the San Francisco area. In order to prevent Wong from falling further behind, Dean Lewis permitted him to take several fourth-year level clerkships at hospitals in the San Francisco area. He earned A's and B's in these courses, with positive comments. Two evaluators thought that Wong needed to improve his fund of knowledge, but both attributed the

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deficiency to the fact that he was taking classes in the fourth-year curriculum without having completed his third year "core" clerkships.6 When Wong returned to the School of Medicine at Davis in the summer of 1993, he again enrolled in Medicine. He asserts that although he did not feel prepared for this course and attempted to drop it, Dean Lewis did not permit the withdrawal, and he ultimately failed the class, triggering another appearance before the SEC and Promotions Board.

        The Promotions Board adopted strict conditions for Wong to remain a student in the School of Medicine: it required him to take only reading electives for the next three quarters; to meet again with the SEC and Dean Lewis following that period to assess his progress; and, assuming he received approval to re-enter the clerkship program, to repeat the entire third year, including the courses he already had passed. During the meeting with the Promotions Board, Wong stated that he thought he might have a learning disability and learned from members of the Promotions Board about the University's Disability Resource Center ("DRC"). DRC staff members and doctors to whom they referred Wong administered a battery of tests and concluded that Wong has a disability that affects the way he processes verbal information and expresses himself verbally.7

        When Dean Lewis learned the results of the tests, he referred Wong to Dr. Margaret Steward, a psychologist and School of Medicine faculty member, so that she could counsel him regarding coping skills and help him determine what accommodations would allow him to complete his courses successfully. Dr. Steward suggested several strategies for Wong to employ, including telling people that he has a "hearing problem" and may need them to slow down or repeat messages; using a tape recorder; and double-checking his understanding of information he has received verbally.8 Dr. Steward reported to Dean Lewis in a memorandum that "[t]here is no doubt that [Wong] will need extra time to complete the clerkship years."9 In the same memorandum, she also specifically recommended giving Wong extra time to read before his next two clerkships, Medicine and Surgery; in a later memorandum, she informed Dean Lewis that she had discussed with Wong that he needed to pass the Medicine clerkship to provide "empirical support" for extra reading time before his next clerkship and that "if he passes Medicine that he needs to anticipate extra time in order to complete the clerkship years."10 Finally, Dr. Steward recommended that Dean

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Lewis assign Wong an "SLD [Student Learning Disability] advisor" with whom he could meet to review strategies for coping with his disability. Dean Lewis never appointed this advisor.11 Wong also contends (and the University does not dispute) that Dr. Steward told him that the School of Medicine "would set up a learning disability resource team to ensure that Wong received adequate accommodations, " but the school never did so.12

        After completing the requisite three quarters of elective reading under the supervision of a faculty member, Wong planned to retake the Medicine clerkship in July 1994. After attending orientation, however, he felt unprepared for the course and asked for another eight weeks off for additional reading. Dean Lewis granted this request, although he noted that he did not know how the extra time would help Wong. In September 1994, Wong took and passed Medicine, earning a "B" and receiving overwhelmingly positive comments on his grade report, including observations of his "excellent fund of knowledge," "excellent...

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