Pandazides v. Virginia Bd. of Educ., 91-2313

Decision Date23 October 1991
Docket NumberNo. 91-2313,91-2313
Citation946 F.2d 345
Parties57 Fair Empl.Prac.Cas. (BNA) 232, 57 Empl. Prac. Dec. P 41,027, 70 Ed. Law Rep. 371, 2 A.D. Cases 33, 2 NDLR P 120 Sofia P. PANDAZIDES, Plaintiff-Appellant, v. VIRGINIA BOARD OF EDUCATION, Defendant-Appellee, and Educational Testing Service, Prince William County School Board, Virginia Superintendent of Public Instruction, Defendants, Virginia School Boards Association, Amicus Curiae.
CourtU.S. Court of Appeals — Fourth Circuit

Michael D. Simpson, Washington, D.C., argued (Steven David Stone, Alexandria, Va., on brief), for plaintiff-appellant.

Joan W. Murphy, Asst. Atty. Gen., Richmond, Va., argued (Mary Sue Terry, Atty. Gen., R. Claire Guthrie, Deputy Atty. Gen., Paul J. Forch, Sr. Asst. Atty. Gen., on brief), for defendant-appellee.

Kathleen S. Mehfoud, Hazel & Thomas, P.C., Richmond, Va., on brief, for amicus curiae.

Before ERVIN, Chief Judge, and PHILLIPS and SPROUSE, Circuit Judges.

OPINION

ERVIN, Chief Judge:

This case involves a claim of handicap discrimination under § 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794; hereinafter § 504) by plaintiff Sofia Pandazides against the defendant Virginia Board of Education ("the Board"). The issue presented is whether the district court erred in granting summary judgment to the Board on Pandazides' claim of handicap discrimination and deciding that she was not "otherwise qualified" for the position of school teacher under § 504. Holding that the district court erred, we reverse.

I.
A.

Pandazides sued the Board alleging handicap discrimination under § 504 of the Rehabilitation Act of 1973. Pandazides was an applicant for professional teacher certification in Virginia. The Amended Complaint was filed on September 24, 1990. The Board moved for dismissal, or alternatively for summary judgment, on October 11, 1990. Summary Judgment was granted for the Board on October 30, 1990, 752 F.Supp. 696, from which this appeal was taken.

B.

Pandazides is a teacher who suffers from several learning disabilities. Her employment as a teacher and her disability will be discussed in tandem. Pandazides graduated from Longwood College in May 1988 with a B.S. degree in special education. While her overall G.P.A. was 2.7, she made the Dean's list her last semester. During the course of college, she engaged in student teaching for a semester for which she was rated very highly.

In September 1988, Pandazides began teaching with the Prince William County, Virginia School District. She taught emotionally-disturbed children at Woodbridge Middle School for the next two years. During the 1988-89 academic year she taught pursuant to a one-year, non-renewable, probationary certificate, which permits teachers who have not yet passed the National Teachers Examination ("NTE") to teach for one year. In the course of that year, Pandazides was observed by evaluators. Moreover, she worked with an experienced teacher. The school, in its evaluation noted several areas in which Pandazides needed improvement. Despite the reviews, the school district reemployed her for the 1989-90 year pursuant to a "Temporary Teaching Agreement." During this year, she received an "E" rating on her Teacher Evaluation Report, the higher of two possible ratings. Nevertheless, since Pandazides has been unable to pass the Communication Skills portion of the NTE, she was deemed ineligible to teach by the Board.

The Commonwealth of Virginia requires that prospective teachers pass the NTE Core Battery and any appropriate Specialty Area test of the NTE. The core test at issue here is comprised of three components: General Knowledge, Professional Knowledge, and Communication Skills. Despite the general requirement that aspiring teachers pass the NTE, the Board does provide an exception. A policy promulgated in July 1988 expressly provides for a waiver of the NTE requirement for handicapped persons who can show that their handicap invalidates the test. Waivers must be requested through the Department of Education and are dependent on the severity of the handicap. According to a publication of the Board, "[i]f the severity of the handicap has been verified by appropriate authorities and is such that it invalidates the test, the individual will not be required to take that portion of the test. Moreover, Board policy empowers the Superintendent of Public Instruction to make "modifications" in the certification regulations in "exceptional and justifiable cases."

Between June 1987 and October 1988, Pandazides took and failed the Communications Skills 1 portion of the NTE six times. In January 1989, and by letter dated February 10, 1989, she requested that the Board exempt her from the requirement of having to pass that part of the NTE. On August 1, 1989, Pandazides wrote to the state Superintendent of Public Instruction requesting an exemption. Dr. Thomas A. Elliot, responding on behalf of the Superintendent, stated that notwithstanding Pandazides' documentation, the office was unable to grant an exemption. Meanwhile, Pandazides persuaded the Educational Testing Service ("ETS") to some extent to alter its testing procedure by providing her with a separate room, a script for the auditory portion of the test, a cassette player that played the tape at a slower pace, and 50 percent additional time. Taking the test under these conditions, Pandazides failed it twice. Pandazides' original and ongoing request is for ETS to allow her unlimited time to complete the test, to interact with the examiner, and to write out or talk about her answers.

The handicap that prevented Pandazides from passing the required NTE, of which the Skills test was one of three sections, was described by a clinical psychologist who specialized in the diagnosis and treatment of persons with learning disabilities. According to the doctor, she possessed the intelligence for teaching. Pandazides, nevertheless has three learning disabilities which meet the clinical standard for being considered handicapped. First, she suffers from "attentional defect disorder in the auditory modality," which limits her ability to input auditory information at the normal rate for a person of her age and intelligence. Second, Pandazides has "[d]ifficulty with the rapid integration of information from auditory and visual modalities," which adversely affects her ability to read quickly as would be the case on a standardized test. Third, she suffers from "dysnomia," which limits her ability to succinctly express a word or thought upon command. According to the psychologist Pandazides has developed "compensatory mechanisms to neutralize the impact of [her] disabilities" and has the ability to make herself understood by using examples and paraphrasing her thoughts. The psychologist opined:

It is my conclusion that Sofia Pandazides is a competent and qualified teacher. While her handicaps limit her ability to function in many areas of life that represent no problems for typical individuals of her chronological age and intelligence, they have no significant impact on her ability to teach. Ms. Pandazides' personality characteristics make her one of the more qualified and effective teachers that I have evaluated. [Her] command of the subject matter, ability to prepare in novel and creative ways to teach her students, her particular sensitivity to the unique and individual needs of special education students, do more, in my opinion, than minimally qualify her to teach. They provide her with very special skills that students are not likely to see in most teachers with whom they come into contact.

II.

The grant of summary judgment to the Board was based on what we believe to be a misreading of Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979). Specifically, the trial court read the statutory term "otherwise qualified" to mean that Pandazides would have to meet all the licensure requirements. According to the trial court, her failure to meet those requirements through her inability to pass the Communication Skills section of the NTE meant she was not otherwise qualified; thus, she was not afforded the full protection of the statute. Alexander v. Choate, 469 U.S. 287, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985) and School Board of Nassau County, Florida v. Arline, 480 U.S. 273, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987), were decided subsequent to Davis to explicate its "otherwise qualified" definition, and necessitate reversal of the district court. The reasoning of the district court opinion and the dearth of factual findings indicate that summary judgment was improper.

The section of the Rehabilitative Act of 1973 (29 U.S.C. § 794) at issue prohibits recipients of federal assistance from discriminating against a person on the basis of his handicap. Section 504 states:

No otherwise...

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