Doherty v. Southern College of Optometry

• Decision Date: 03 February 1989
• Docket Number: 87-5655,Nos. 87-5595,s. 87-5595
• Citation: 862 F.2d 570
• Parties: 50 Ed. Law Rep. 680 James Paul DOHERTY, Plaintiff-Appellant/Cross-Appellee, v. SOUTHERN COLLEGE OF OPTOMETRY, Defendant-Appellee/Cross-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 570

862 F.2d 570

50 Ed. Law Rep. 680

James Paul DOHERTY, Plaintiff-Appellant/Cross-Appellee, v. SOUTHERN COLLEGE OF OPTOMETRY, Defendant-Appellee/Cross-Appellant.

Nos. 87-5595, 87-5655.

United States Court of Appeals Sixth Circuit.

Argued June 10, 1988.

Decided Dec. 1, 1988.

Rehearing and Rehearing En Banc Feb. 3, 1989.

Sam B. Blair, Jr., Heiskell, Donelson, Bearman, Adams, Williams and Kirsch, Memphis, Tenn., Leo Bearman, Jr. (argued), for plaintiff-appellant/cross-appellee.

Gail O. Mathes (argued), Bogatin, Lawson, & Chiapella, Paul E. Prather, Armstrong, Allen, Memphis, Tenn., for defendant-appellee/cross-appellant.

Before KENNEDY and JONES, Circuit Judges, and CONTIE, Senior Circuit Judge.

KENNEDY, Circuit Judge.

Plaintiff-appellant/cross-appellee James Doherty (plaintiff), a former student of the defendant Southern College of Optometry (SCO), appeals from the judgment of the District Court dismissing his claim under Section 504 of the Rehabilitation Act of 1973, and directing a verdict in favor of SCO on his misrepresentation claim. Doherty v. Southern College of Optometry, 659 F.Supp. 662 (W.D.Tenn.1987). SCO appeals from a jury verdict in favor of the plaintiff on his breach of contract claim, and alleges on appeal that the District Court erroneously instructed the jury with regard to that claim, and erred in denying SCO's motions for a mistrial and directed verdict. We affirm the dismissal of the section 504 and misrepresentation claims. We reverse the denial of a directed verdict for SCO on the breach of contract claim.

The plaintiff suffers from retinitis pigmentosa (RP) and an associated neurological condition. The RP restricts the plaintiff's visual field to a minimal field of six degrees in his right eye and ten degrees in his left eye. The neurological condition affects the plaintiff's motor skills as well as his sense of touch and his manual coordination.

The plaintiff applied for admission to SCO in 1975. Before being admitted the plaintiff was examined by SCO faculty members, Drs. Ebbers and Vasa, at the request of Ms. Phyllis Dale, a counselor for the Rehabilitation for the Blind Division of the Tennessee Department of Human Resources, at SCO's clinic. Dr. Ebbers reported that the plaintiff's RP had stabilized and that the plaintiff's "ability to overcome his field constriction by eye movements, combined with his academic record, and his motivation, all indicate that visually he should be able to handle any academic endeavor he attempts." (Emphasis added.) Both Drs. Ebbers and Vasa indicated that, although initially they had been pessimistic about the plaintiff's opportunities in optometry, after examining him they felt his possibilities were promising. The plaintiff was also examined by an independent internist, Dr. Gotten, who evaluated the plaintiff's neurological disorder and reported that "I think that it would be most difficult for [the plaintiff] to be an optometrist, but I certainly would not discourage him trying." Although Dr. Gotten sent the report to Ms. Dale, neither SCO nor Dr. Ebbers received this report.

In his application to SCO, the plaintiff listed "Retinitis Pigmentosa" in response to the question as to handicaps, but did not mention that he suffered from neurological problems. The plaintiff's physician's report, completed as part of the application, stated that the plaintiff did not suffer neuromuscular abnormalities. The plaintiff also failed to inform SCO of his neurological difficulties when he completed a student health record. SCO admitted the plaintiff to its four-year optometry program. He entered under the 1978-79 SCO catalog, which provided on the inside front cover that "[t]his edition of the Southern College of Optometry catalog is effective for the academic year 1978-79. Inasmuch as changes may be necessary from time to time, this catalog should not be construed as constituting a contract between the College and any person." Under SCO policy, each school year is governed by the current school year catalog. SCO does not retroactively apply additional requirements for students who have already completed the year to which the additional requirements pertain. That is, SCO does not require a fourth year student to take a first or second year course that was added by the current catalog. SCO does, however, require first and second year students to take a new course that affects the third or fourth year course requirements.

During the plaintiff's first year at SCO, the school began to require that students pass a pathology clinic proficiency requirement in order to qualify for an externship program required for fourth year students. According to the school policy, the plaintiff was subject to the new requirement. The pathology clinical proficiency examination requires the student to perform techniques with various instruments. The plaintiff stipulated at trial that he could not perform the techniques on four of the required instruments: the Zeiss 4 mirror gonioscope, the Goldman 3 mirror gonioscope, the Binocular Indirect Ophthalmoscope and the Schiotz Tonometer. After the plaintiff failed his "check-out" on these instruments, he appealed the decision to the Admissions Committee, requesting that these requirements be waived. The Committee rejected the appeal. The Board of Trustees also denied his appeal, but granted the plaintiff an additional quarter to practice the techniques. In spite of the extra practice, the plaintiff again failed to demonstrate his proficiency with these instruments.

When SCO refused to confer a degree upon the plaintiff, he filed suit in the United States District Court for the Western District of Tennessee against SCO and two faculty members alleging both a violation of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794 (1982), and section 1983. 42 U.S.C. Sec. 1983 (1982). Plaintiff also asserted pendent state law claims of breach of contract, misrepresentation, outrageous conduct, and tortious interference with contract. The District Court dismissed the section 1983 claim and the tortious interference with contract claim before trial. The remaining state law claims were tried before a jury; the District Court, however, directed a verdict in favor of all the defendants on the outrageous conduct and misrepresentation claims. The jury returned a verdict of $225,000 in favor of the plaintiff on the breach of contract claim. The District Court denied SCO's motion for a mistrial based on jury misconduct. The section 504 claim was tried by the District Court, which found in favor of SCO. The plaintiff appeals from the District Court's decision on the section 504 claim and from the directed verdict in favor of SCO on the misrepresentation claim (No. 87-5655), while SCO cross-appeals from the jury's verdict on the breach of contract claim (No. 87-5595).

I

The first issue we address is whether the District Court erred in finding for SCO on the plaintiff's claim under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794 (1982), which provides that "[n]o otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title, shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance...." Id. (emphasis added). The plaintiff argues that he is an "otherwise qualified handicapped individual," and that the District Court erred in finding that the plaintiff's proficiency with the four instruments was necessary to graduate. He argues that SCO used the tests as a pretext for discrimination, contending that SCO applied a higher standard to him by requiring mechanical proficiency with the instruments. SCO tested other students, he claims, based only on knowledge, and not on mechanical proficiency.

The elements of a cause of action under section 504 are as follows: (1) The plaintiff is a "handicapped person" under the Act; (2) The plaintiff is "otherwise qualified" for participation in the program; (3) The plaintiff is being excluded from participation in, being denied the benefits of, or being subjected to discrimination under the program solely by reason of his handicap; and (4) The relevant program or activity is receiving Federal financial assistance. See Pushkin v. Regents of Univ. of Colorado, 658 F.2d 1372, 1384 (10th Cir.1981); Doe v. New York Univ., 666 F.2d 761, 774-75 (2d Cir.1981). See also Southeastern Community College v. Davis, 442 U.S. 397, 405, 99 S.Ct. 2361, 2366, 60 L.Ed.2d 980 (1979). Despite agreement on the elements of a cause of action under section 504, the Courts of Appeals have been unable to agree on the proper allocation of burdens of proof in section 504 cases. Compare Pushkin, 658 F.2d at 1386-87 (defendant effectively bears burden of persuasion on "otherwise qualified" issue) with Doe, 666 F.2d at 776-77 (defendant bears only limited burden of production on "otherwise qualified" issue). See also Wegner, The Antidiscrimination Model Reconsidered: Ensuring Equal Opportunity Without Respect to Handicap under Section 504 of the Rehabilitation Act of 1973, 69 Cornell L.Rev. 401, 481-91 (1984); Comment, Section 504 of the Rehabilitation Act: Analyzing Employment Discrimination Claims, 132 U.Pa.L.Rev. 867, 891-99 (1984). We decline to comment unnecessarily upon the propriety of burden shifting in section 504 cases because the context of this case does not require us to reach the issue. Regardless of which party bears the ultimate burden of proof on the "otherwise qualified" issue, defendant here has satisfied that burden because it has established that the clinical proficiency requirements are a necessary part of the curriculum and plaintiff has admitted that he is unable to meet these requirements.

The District Court found that the plaintiff failed to establish that he was "otherwise qualified"...