63 F.3d 131 (2nd Cir. 1995), 447, Borkowski v. Valley Cent. School Dist.

Docket Nº:447, Docket 94-7254.
Citation:63 F.3d 131
Party Name:Kathleen BORKOWSKI, Plaintiff-Appellant, v. VALLEY CENTRAL SCHOOL DISTRICT, Defendant-Appellee.
Case Date:August 10, 1995
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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63 F.3d 131 (2nd Cir. 1995)

Kathleen BORKOWSKI, Plaintiff-Appellant,



No. 447, Docket 94-7254.

United States Court of Appeals, Second Circuit

August 10, 1995

Argued Oct. 12, 1994.

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Howard Schell Reilly, Poughkeepsie, NY (Mid-Hudson Legal Services, Inc., on brief), for appellant Kathleen Borkowski.

Robert D. Cook, Kingston, NY (Cook, Tucker, Netter & Cloonan, P.C., on brief), for appellee Valley Cent. School Dist.

Before NEWMAN, Chief Judge, and WALKER and CALABRESI, Circuit Judges.

CALABRESI, Circuit Judge:

Can a teacher with disabilities, whose disabilities directly affect her capacity to perform

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her job, insist that her employer provide a teacher's aide as a form of reasonable accommodation under Section 504 of the Rehabilitation Act, 29 U.S.C. Sec. 794? That question is at the heart of this appeal from the entry by the United States District Court for the Southern District of New York (Charles L. Brieant, Judge ) of summary judgment for the defendant Valley Central School District ("the School District"). We acknowledge that, on a proper factual showing, the answer may prove to be "no." But because we believe that issues of material fact have not been resolved, we vacate the entry of judgment in favor of the School District and remand the matter for further proceedings consistent with this opinion.


In 1972, as a result of a motor vehicle accident, Kathleen Borkowski suffered a major head trauma and sustained serious neurological damage. During long years of difficult rehabilitative therapy, Ms. Borkowski's condition improved significantly. She was unable to make a complete recovery, however. According to her treating physician and to a psychologist who evaluated her in connection with this litigation, Ms. Borkowski has continuing difficulties with memory and concentration, and as a result has trouble dealing with multiple simultaneous stimuli. In addition, Ms. Borkowski's balance, coordination, and mobility continue to show the effects of her accident.

In the fall of 1987, Ms. Borkowski applied for the position of library teacher with the School District. During interviews with School District officials, Ms. Borkowski discussed her accident and its lingering consequences. Following these interviews, Ms. Borkowski was appointed to serve as a library teacher at two elementary schools within the school district. Ms. Borkowski's duties as a library teacher went beyond those of a librarian; she also was responsible for teaching library skills to classes of elementary school students.

Ms. Borkowski's appointment was for a probationary term. Under New York law, such a term may last up to three years. At the end of the third year, unless the teacher and the school district agree to extend the probationary term for a fourth year, a decision is made whether or not to grant the teacher tenure. If tenure is not granted, the teacher's employment is ended. See N.Y.Educ.Law Sec. 3012 (McKinney 1981 & Supp.1994).

During her three years of probationary employment, Ms. Borkowski received regular performance evaluations. These were based on observations of Ms. Borkowski's work by the Superintendent of the School District, James Coonan, the district's Director of Elementary Education, Robert Schoonmaker, and the principals of the two schools at which Ms. Borkowski taught, Harvey Gregory and John Schmoll. While Mr. Gregory's evaluations generally were positive, those of Messrs. Schoonmaker and Schmoll were not. Of particular significance was an unannounced observation of Ms. Borkowski's class by Mr. Schmoll during Ms. Borkowski's third and final year of probationary employment. Based on his observation, Mr. Schmoll found that Ms. Borkowski had difficulty controlling the class and noted that students had talked, yelled, and whistled without being corrected. Mr. Schmoll also criticized Ms. Borkowski for remaining seated during the lesson. He concluded that little learning had occurred during the observed class.

In the spring of 1990, Mr. Coonan, as Superintendent of the School District, determined that Ms. Borkowski should not be granted tenure. Mr. Coonan informed Ms. Borkowski of this decision on May 1, 1990. Two weeks later, replying to Ms. Borkowski's inquiry, Mr. Coonan set forth in writing the reasons for the denial of tenure. Mr. Coonan focused primarily on what he termed Ms. Borkowski's poor classroom management; he also noted that it was inappropriate for Ms. Borkowski to remain seated during class. In response, Ms. Borkowski, citing her disability, requested reconsideration of the tenure decision, but stated that if reconsideration was denied she would resign. Having received no answer from the School District, Ms. Borkowski submitted her resignation on June 1, 1990. Ms. Borkowski subsequently offered to provide the School District with a letter from her neurologist detailing her disability.

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The School District responded that Ms. Borkowski's disability "had absolutely nothing to do with" the decision to deny her tenure. The present action ensued.


The basic framework of a claim of employment discrimination under Section 504 of the Rehabilitation Act is well settled. To prevail on her claim, Ms. Borkowski must establish that (1) she is an individual with a disability within the meaning of the Act, (2) she is otherwise qualified to perform the job in question, (3) she was excluded from the job solely because of her disability, and (4) her employer received federal funding. Sedor v. Frank, 42 F.3d 741, 746 (2d Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 2279, 132 L.Ed.2d 283 (1995); see also Bates v. Long Island R.R. Co., 997 F.2d 1028, 1035 (2d Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 550, 126 L.Ed.2d 452 (1993); Guice-Mills v. Derwinski, 967 F.2d 794, 797 (2d Cir.1992); Doe v. New York Univ., 666 F.2d 761, 774 (2d Cir.1981).

For the purposes of its motion for summary judgment, the School District concedes that Ms. Borkowski is an individual with a disability within the meaning of the Act. It is also undisputed that the School District receives federal funds. The matter therefore turns on the second and third elements of the claim, namely, whether Ms. Borkowski was otherwise qualified for the position of tenured library teacher, and whether she was denied that position solely on the basis of her disability.

The School District and the district court misapprehend the nature of the inquiry into whether Ms. Borkowski was otherwise qualified and whether her termination was due to her disability. Ms. Borkowski claims, and the School District concedes, that she was otherwise qualified in a formal sense, in that she had the necessary educational background and certifications to be hired. But the School District, relying on New York Education Law Sec. 3012, maintains that it nevertheless had broad statutory authority to exercise discretion in deciding whether or not to give her tenure. And, in part on that basis, the district court granted summary judgment. We do not question the School District's discretionary authority to make tenure decisions; that authority, however, is circumscribed by the requirements of Section 504. By determining that Ms. Borkowski's performance was inadequate without considering whether her known disabilities could be accommodated reasonably, and by relying on that determination to justify denying her tenure, the School District in effect concluded that Ms. Borkowski was not otherwise qualified and that she could be dismissed. It is this decision that brings her claim within the bounds of Section 504, and requires us to examine whether, under the terms of that section, Ms. Borkowski (1) was, in fact, otherwise qualified for tenure, and (2) was denied tenure solely because of her disability.

  1. Was Ms. Borkowski otherwise qualified for the position of tenured library teacher?

    Although the phrase "otherwise qualified" is hardly unambiguous on its face, its meaning in the context of an employment discrimination claim is fairly clear: an individual is otherwise qualified for a job if she is able to perform the essential functions of that job, either with or without a reasonable accommodation. See School Bd. v. Arline, 480 U.S. 273, 287 n. 17, 107 S.Ct. 1123, 1131 n. 17, 94 L.Ed.2d 307 (1987); Gilbert v. Frank, 949 F.2d 637, 641-42 (2d Cir.1991). This definition plays off the regulatory language that requires an employer to "make reasonable accommodation to the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless the [employer] can demonstrate that the accommodation would impose an undue hardship on the operation of its program." 34 C.F.R. Sec. 104.12(a); 45 C.F.R. Sec. 84.12(a). 1

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    a. The allocation of the burdens of production and persuasion

    But what is a reasonable accommodation, and what is an undue hardship? These terms do not appear in the text of Section 504 itself; they are, rather, the creations of the regulations that implement Section 504. See 34 C.F.R. Sec. 104.12; 45 C.F.R. Sec. 84.12.

    The regulations define reasonable accommodation only by example:

    Reasonable accommodation may include: (1) making facilities used by employees readily accessible to and usable by handicapped persons, and (2) job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, the provision of readers or interpreters, and other similar actions.

    34 C.F.R. Sec. 104.12(b); 45 C.F.R. Sec. 84.12(b). And they say nothing about who bears the burden of demonstrating that an accommodation is reasonable.

    The definition of undue hardship is more explicit. The regulations state that the following factors are to be considered in determining whether a particular accommodation would cause an undue hardship:


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