Argenyi v. Creighton Univ.

• Decision Date: 05 March 2013
• Docket Number: 11–3461.,Nos. 11–3336,s. 11–3336
• Citation: 703 F.3d 441
• Parties: Michael S. ARGENYI, Plaintiff–Appellant/Cross–Appellee v. CREIGHTON UNIVERSITY, Defendant–Appellee/Cross–Appellant United States; Alexander Graham Bell Association for the Deaf and Hard of Hearing; National Disability Rights Network; Association of Medical Professionals with Hearing Losses, Amici on Behalf of Appellant/Cross–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

703 F.3d 441

Michael S. ARGENYI, Plaintiff–Appellant/Cross–Appellee

v. CREIGHTON UNIVERSITY, Defendant–Appellee/Cross–AppellantUnited States; Alexander Graham Bell Association for the Deaf and Hard of Hearing; National Disability Rights Network; Association of Medical Professionals with Hearing Losses, Amici on Behalf of Appellant/Cross–Appellee.

Nos. 11–3336, 11–3461.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 14, 2012.

Filed: Jan. 15, 2013.

Rehearing and Rehearing En Banc Denied March 5, 2013.^*

Mary Caroline Vargas, argued, Baltimore, MD, Marc Charmatz, Debra Patkin, Silver Spring, MD, Dianne D. DeLair, Lincoln, NE, Jeffrey Archer Miller, Michael Steven Stein, Baltimore, MD, on the brief, for Plaintiff–Appellant/Cross–Appellee.

Scott P. Moore, argued, Allison Balus, on the brief, Omaha, NE, for Defendant–Appellee/Cross–Appellant.

Mark Lenard Gross, USA, Teresa Kwong, USA, Washington, D.C., Mark L. Merrell, Steven Robert Rech, Houston, TX, Jennifer Lee Gravitz, Rochester, NY, on the brief, for Amici on Behalf of Appellant/Cross–Appellee.

Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.

MURPHY, Circuit Judge.

Michael Argenyi, a young man with a serious hearing impairment, moved from Seattle to Omaha, Nebraska to attend medical school at Creighton University. Before enrolling Argenyi requested specific accommodations from Creighton for his hearing impairment. They were denied, but Argenyi repeatedly renewed them during his first two years at Creighton Medical School. He explained that without these accommodations he was unable to follow lectures, participate in labs, or communicate with patients.

Because Creighton failed to provide what he considered necessary and reasonable accommodations, Argenyi brought this action under Title III of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12182, and § 504 of the Rehabilitation Act, 29 U.S.C. § 794. The district court decided that Argenyi had not shown his requested accommodations were necessary and granted summary judgment to Creighton while denying its motion for costs. Argenyi and Creighton both appeal.¹ We reverse and remand.

I.

Argenyi began using hearing aids before he was one year old, but his parents primarily communicated with him through spoken language. To distinguish between sounds that appear the same on a speaker's lips Argenyi relied on “cued speech,” which uses hand signals to represent sounds. He does not know sign language. In eighth grade Argenyi began using Communication Access Real-time Transcription (CART), a system which transcribes spoken words into text on a computer screen. Argenyi received a cochlear implant in his right ear in September 2004 before he began undergraduate studies at Seattle University. That university provided CART for Argenyi's lectures and a cued speech interpreter for his lab courses, and Argenyi graduated from Seattle in 2008 with a 3.87 grade point average.

Argenyi stated in his application to Creighton University Medical School in 2009 that he was “hearing-impaired.” Upon his admission Argenyi explained to Michael Kavan, Creighton's associate dean for student affairs, that he would require accommodation “similar to what [he] had used in the past ... primarily interpretation or captioning services during lectures and teaching sessions.” Dean Kavan asked for more information about the nature of his hearing disability and a more specific request for the type of accommodation he needed.

Argenyi's otolaryngologist, Dr. Douglas Backous, responded that Argenyi “would benefit from closed captioning” and an FM system which transmits sound directly into cochlear implants. Argenyi also renewed his requests that Creighton supply CART for his lectures, a cued speech interpreter for labs, and an FM system for small learning groups of eight students or fewer. Kavan replied that the written requests submitted by Dr. Backous and Argenyi were inadequate because they differed and the doctor had not made a “direct request.”

Before starting medical school Argenyi received a bilateral cochlear implant, and his implant audiologist and Dr. Backous both recommended that to succeed in his studies he would also need CART, a cued speech interpreter, and the FM system. Dr. Backous wrote to Creighton that Argenyi “remains ... deaf regardless of if he is or is not using his cochlear implants.... [He] has a bilateral profound sensorineural hearing loss.” Before Argenyi's enrollment, Creighton's medical education management team met to review his requests for accommodation. Dean Kavan then informed Argenyi that Creighton would provide him with an FM system for lectures, small groups, and labs. Argenyi agreed to give the FM system “a wholehearted try.”

Shortly before classes began on August 16, 2009, Argenyi renewed his original requests for accommodations. Creighton denied them. After trying the FM system for two weeks, Argenyi informed Dean Kavan that he needed to obtain CART for himself. He wrote the dean that “[t]he [university's] accommodations are inadequate as evidenced by the level of stress and fatigue I am experiencing, as well as the amount of information I am missing.... [They] do not provide for meaningful participation nor independence as a student, and also put me at a significant disadvantage academically.” Dr. Backous wrote to Creighton in support of Argenyi's needs, urging that

It is imperative that [Argenyi] have access to visual cues for everyday communication and education. Visual cues include, but are not limited to closed captioning on videos and films, real time captioning for lectures and discussions, and speech reading cues for one-on-one interactions.

The dean responded by offering Argenyi only enhanced note taking services.

In late September 2009 Argenyi brought this action against Creighton, alleging violations of Title III of the ADA and § 504 of the Rehabilitation Act by the university's failure to provide “auxiliary aids and services to ensure effective communication and an equal opportunity to participate in and benefit from the School of Medicine.” Argenyi sought a declaratory judgment compelling Creighton to provide him with “auxiliary aids and services to ensure effective communication,” as well as compensatory damages and attorney fees.

Argenyi continued to attend class and pursue his medical education. In February 2010 he consulted ear specialist Dr. Britt Thedinger as an expert witness. Dr. Thedinger tested the Creighton FM system and found that with the background noise that Argenyi had only 38 percent speech perception. Dr. Thedinger determined that “the FM system does not provide any significant benefit and ... actually reduces [Argenyi's] discrimination ability.”

Creighton provided no further auxiliary support or services during Argenyi's first year of medical school, and Argenyi borrowed approximately $53,000 to pay for CART and interpreters himself. In a document publicly available on its website, Creighton estimates that the first year of its medical school costs approximately $71,000 for an average student before financial aid. After paying for his accommodations, the effective cost to Argenyi for his first year of medical school was therefore more than $120,000.

Argenyi renewed his request for accommodation before his second year of medical school. In response Creighton offered to provide an interpreter for lectures and a seat next to the instructor for small group discussions. Argenyi found the interpreter not sufficient to convey complex new vocabulary and again took out approximately $61,000 in loans to pay for CART.

The second year curriculum included clinical courses in which students interviewed and cared for patients. For those courses Creighton refused to allow Argenyi to use an interpreter even if he paid for one himself. Argenyi tried the clinical courses without an interpreter for approximately two weeks and then renewed his request for one. As he explained on September 21, 2010,

I met with patients ... and found that I could not understand all of what patients and others at the clinic said. With some patients I understood very little.... I know you said I only have to show up to pass, but I want to learn how to be a doctor and I think it is important to understand what the patients are saying to me.

Argenyi and Creighton entered into settlement negotiations in January 2011, and the university temporarily provided him with an interpreter in his clinical courses. Settlement talks ended the following month, however, and Argenyi was again prohibited from using an interpreter. Argenyi nevertheless succeeded in passing his clinical and other courses, but after his second year he took a leave of absence pending the resolution of his claims under the ADA and the Rehabilitation Act.

In July 2011 Argenyi and Creighton both moved for summary judgment. The district court granted summary judgment to Creighton after it concluded that (1) Argenyi had not shown the accommodations he requested were “necessary” within the meaning of the statutes and (2) that Creighton had provided “effective communication” as required by both laws. The court also rejected Argenyi's affidavit as “unsupported self-serving allegations,” denied him relief, and ordered each party to pay its own costs.

Argenyi appeals the district court's grant of summary judgment to Creighton. Creighton cross appeals the denial of costs, asserting that the district court erred by failing to provide a supporting rationale.

II.

This court reviews a district court's grant of summary judgment de novo. Minnesota ex rel. N. Pac. Ctr., Inc. v. BNSF R.R. Co., 686 F.3d 567, 571 (8th Cir.2012). Facts must be construed favorably to the losing party, and Argenyi is to be given the benefit of all reasonable inferences in the record. Id. Summary judgment is appropriate only if no genuine dispute exists “as to any material fact and the movant is entitled to judgment as a matter of law.” Id. (citation omitted). To...