Wong v. Regents of University of California

• Decision Date: 07 June 2005
• Docket Number: No. 01-17432.,01-17432.
• Citation: 410 F.3d 1052
• Parties: Andrew H.K. WONG, Plaintiff-Appellant, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

410 F.3d 1052

Andrew H.K. WONG, Plaintiff-Appellant, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant-Appellee.

No. 01-17432.

United States Court of Appeals, Ninth Circuit.

Argued and Submission Deferred February 12, 2003.

Submitted April 17, 2003.

Filed August 18, 2004.

Amended June 7, 2005.

COPYRIGHT MATERIAL OMITTED

Dan Siegel (argued), Hunter Pyle, Siegle & Yee, Oakland, California, for the plaintiff-appellant.

Michael T. Lucey, Michael D. Bruno, Joel K. Liberson (argued), Gordon & Rees LLP, San Francisco, California, for the defendant-appellee.

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

Before BEEZER, THOMAS and CLIFTON, Circuit Judges.

ORDER AMENDING OPINION AND DENYING PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC AND AMENDED OPINION

ORDER

The majority opinion filed on August 18, 2004, is amended as follows:

At 379 F.3d at 1108, replace the first sentence of the paragraph which begins "Regarding the activity of learning ...," with the following:

Regarding the activity of learning, Wong's claim to be "disabled" was contradicted by his ability to achieve academic success, and to do so without special accommodations.

At 379 F.3d at 1108-09, replace the paragraph which begins on page 1108 and extends to the next page with the following:

The relevant question for determining whether Wong is "disabled" under the Acts was not whether he might be able to prove to a trier of fact that his learning impairment makes it impossible for him to keep up with a rigorous medical school curriculum. It was whether his impairment substantially limited his ability to learn as a whole, for purposes of daily living, as compared to most people. The level of academic success Wong achieved during the first two years of medical school, without any special accommodation provided to him by the school, made that proposition implausible. His record was to the contrary. Because the factual context made implausible his contention that he was disabled in the activity of "learning" as compared to most people, he was required to "come forward with more persuasive evidence than otherwise would be necessary to show that there is a genuine issue for trial." Blue Ridge Insurance Co. v. Stanewich, 142 F.3d 1145, 1149 (9th Cir.1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). He did not present sufficient evidence in support of his contention to establish a triable issue of fact.⁶

The next sentence, beginning "As for the activity of reading ...," starts a new paragraph (correctly shown at Slip op. at 11562, but incorrect at 379 F.3d at 1109). That paragraph is otherwise unchanged.

At 379 F.3d at 1109, delete the first paragraph of footnote 6 such that the footnote consists only of the remaining paragraph.

The dissenting opinion of Judge Thomas is amended, on 379 F.3d at 1110, by deleting the sixth sentence of the first paragraph, which is the sentence beginning with the words "At a minimum, ...."

With the opinions as amended, Judges Beezer and Clifton have voted to deny the petition for rehearing. Judge Thomas has voted to grant the petition for rehearing.

Judge Clifton has voted to deny the petition for rehearing en banc, and Judge Beezer so recommends. Judge Thomas has voted to grant the petition for rehearing en banc.

A judge of the court called for a vote on the petition for rehearing en banc. A vote was taken, and a majority of the active judges of the court failed to vote for en banc rehearing. Fed. R.App. P. 35(f).

The petition for rehearing and petition for rehearing en banc, filed on September 8, 2004, are DENIED.

No further petitions for rehearing will be entertained.

OPINION

CLIFTON, Circuit Judge:

Andrew H.K. Wong alleges that the University of California discriminated against him in violation of the Americans with Disabilities Act ("ADA") and the Rehabilitation Act¹ when it denied his request for learning disability accommodations and subsequently dismissed him for failure to meet the academic requirements of the medical school at the University's Davis campus. The district court granted the University's motion for summary judgment, concluding that Wong failed to present a triable issue of material fact as to whether he was "disabled" and thus legally entitled to special accommodations under those Acts.

Wong's appeal thus requires us to consider the meaning of "disabled" under the Acts. More specifically, it presents a question of whether a person who has achieved considerable academic success, beyond the attainment of most people or of the average person, can nonetheless be found to be "substantially limited" in reading and learning, and thus be entitled to claim the protections afforded under the Acts to a "disabled" person.

This appeal also raises an issue regarding the exclusion of testimony by the district court on the ground that the expert witnesses in question were not timely identified. The district court excluded certain experts retained by Wong to respond to the University's motion for summary judgment. Those witnesses were identified by Wong after a deadline set by the district court for identifying expert witnesses. Wong contends that the tardy identification was justified because he could not reasonably have anticipated the need for those witnesses, since he did not know that the University disputed his claim to be disabled under the Acts. He further contends that the late identification was harmless, given that the case had a scheduled trial date several months after the supplemental, though tardy, identification.

We affirm. We conclude that the district court did not abuse its discretion in declining to permit Wong to add the additional witnesses. The need for those witnesses could reasonably have been anticipated prior to the supplemental identification of witnesses. We also conclude that the evidence before the district court did not establish a genuine issue of material fact as to whether Wong qualified under the Acts as disabled. Wong contends that he has an impairment which "substantially limits [him in] one or more of the major life activities" and thus fits within the definition of "disabled." See 42 U.S.C. § 12102(2)(A). The Supreme Court has concluded, however, that "these terms need to be interpreted strictly to create a demanding standard for qualifying as disabled." Toyota Motor Mfg. Kentucky, Inc. v. Williams, 534 U.S. 184, 197, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002). Interpreting those terms strictly and applying that demanding standard, Wong has not demonstrated that he is substantially limited in major life activities. We therefore affirm the district court's judgment in favor of the University.

I. BACKGROUND

This court previously considered Wong's disability discrimination claim in 1999, after the district court entered summary judgment in favor of the University on different grounds. We reversed the district court's order and remanded for further proceedings, concluding that genuine issues of material fact remained as to the reasonableness of the accommodation in question and as to whether Wong was otherwise qualified to meet the medical school's academic standards. Wong v. Regents of the Univ. of California, 192 F.3d 807, 826 (9th Cir.1999) ("Wong I"). Subsequently, the district court entered summary judgment again, on a different ground, concluding that Wong had not shown that he qualified as disabled under the Acts. The current appeal presents the question of whether the district court's second entry of summary judgment was proper.

The facts of this case are outlined in detail in Wong I, 192 F.3d at 811-16. We briefly recount pertinent elements here, along with the history of the case subsequent to our previous decision.

As the district court observed, Wong's academic history has been filled with contradictions. In kindergarten he was identified as suffering from a learning impairment, but in grammar school he was certified as a gifted student. In middle school he was assigned to a special class for assisted learning. While attending high school and college, he regularly requested extra time on assignments and essay examinations. To keep up with his college classes, he said that he spent all of his extra time outside of school reading for his classes. The effort paid off, however, for he graduated from San Francisco State University, magna cum laude, earning a B.S. in biochemistry with a cumulative grade point average of 3.54 out of 4.0. Wong went on to earn a master's degree in cellular/ molecular biology from San Francisco State in 1984.

After taking the Medical College Admission Test four times, without special accommodations, he was able to obtain admission to the medical school at Davis. His admission was not based upon any special allowance for a disabled condition.

Wong started at the medical school in the fall of 1989. The medical school's program consists of a four-year curriculum. Typically, in the first two 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. Wong completed the first two years of the medical school program, the academic courses, on a normal schedule, with a grade average slightly above a "B." He had also passed the required national board examination immediately following the second year of school. Wong did not request or receive the benefit of any special accommodations during the first two years of medical school or in taking the national board exam. Through this point, he had not identified himself to the medical school as being "learning disabled" or in need of accommodations.

When the program moved to the clinical clerkships in the...