Bartlett v. NYS Bd. of Law Examiners

• Decision Date: 30 August 2000
• Docket Number: Docket No. 97-9162
• Parties: (2nd Cir. 2000) MARILYN J. BARTLETT, Plaintiff-Appellee, v. NEW YORK STATE BOARD OF LAW EXAMINERS, et al., Defendants-Appellants
• Court: U.S. Court of Appeals — Second Circuit

226 F.3d 69 (2nd Cir. 2000)

MARILYN J. BARTLETT, Plaintiff-Appellee, v. NEW YORK STATE BOARD OF LAW EXAMINERS, et al., Defendants-Appellants.

Docket No. 97-9162

August Term, 1997

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued June 2, 1998

Decided September 14, 1998

Decided: August 30, 2000

On remand from an order of the Supreme Court granting certiorari and vacating our earlier decision in Bartlett v. New York State Bd. of Law Exam'rs, 156 F.3d 321 (2d Cir. 1998), we hold that (1)despite appellee's self-accommodations, she may be disabled under the Rehabilitation Act and the Americans With Disabilities Act if her impairment "substantially limits" her with respect to the major life activity of reading, and (2)appellee's impairment "substantially limits" her with respect to the major life activity of working only if it is her impairment that causes her to be excluded or significantly restricted in a class of jobs or a broad range of jobs in various classes. The district court's judgment is affirmed in part and vacated and remanded in part. Judge Cabranes concurs in part and dissents in part in a separate opinion.

ON REMAND FROM THE SUPREME COURT

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Eliot Spitzer, Attorney General of the State of New York, Robert A. Forte, Deputy Solicitor General, Deon J. Nossel, Assistant Solicitor General, State of New York, NY, NY, for Appellants.

Jo Anne Simon, Brooklyn, NY, Ruth Lowendron, Roberta Mueller, Marianne Engelman Lado, John A. Gresham, New York Lawyers for the Public Interest, Inc., NY, NY, for Appellee.

Robert Lewin, James McGovern, Kevin J. Curnin, James T. Cunningham, Stroock & Stroock & Lavan, New York, NY, for Amici Curiae The Association on Higher Education and Disability, Disability Rights Advocates, Disability Rights Education and Defense Fund, Inc., The International Dyslexia Association, The Learning Disabilities Association of America, The National Association of Protection and Advocacy Systems, The National Center of Higher Education for Learning Problems Program, The New York Branch of the International Dyslexia Association, The Society of American Law Teachers, United Cerebral Palsy Associations of New York State, Inc., The National Coalition For Students With Disabilities Education and Defense Fund, The Bazelon Center for Mental Health Law, and American Association of People With Disabilities.

Bill Lann Lee, Acting Assistant Attorney General, Washington, D.C., Mary Jo White, United States Attorney, Sara L. Shudofsky, Assistant United States Attorney, Southern District of New York, New York, NY, Jessica Dunsay Silver, Marie K. McElderry, Attorneys, Department of Justice, Washington, D.C., for Amicus Curiae The United States.

Before: MESKILL and CABRANES, Circuit Judges, and NICKERSON,^* District Judge.

MESKILL, Circuit Judge:

In this appeal we consider whether plaintiff-appellee Marilyn J. Bartlett has a disability within the meaning of the Americans with Disabilities Act of 1990 (ADA). Bartlett has been diagnosed with dyslexia, a learning impairment. However, not every impairment constitutes a disability under the ADA.

"Disability" is defined to include "a physical or mental impairment that substantially limits one or moreof the major life activities" of an individual. ADA §3(2)(A), 42 U.S.C. §12102(2)(A). The district court found that Bartlett was not substantially limited with respect to major life activities such as reading or learning, but that she was substantially limited with respect to the major life activity of working. Therefore the court held that the defendant-appellant New York State Board of Law Examiners (the Board) was required to provide Bartlett with reasonable accommodations on the New York State Bar Examination. See Bartlett v. New York State Bd. of Law Exam'rs, 970 F.Supp. 1094 (S.D.N.Y. 1997) (Bartlett I); see also Bartlett v. New York State Bd. of Law Exam'rs, 2 F.Supp.2d 388 (S.D.N.Y. 1997) (Bartlett II) (denying motion for post-judgment relief).

The defendants appealed. We affirmed in part, vacated in part and remanded. See Bartlett v. New York State Bd. of Law Exam'rs, 156 F.3d 321 (2d Cir. 1998) (Bartlett III). We agreed that Bartlett was disabled, but on different grounds. In particular, in determining whether Bartlett was substantially limited with respect to reading, we held that the district court should not have taken into account Bartlett's ability to "self-accommodate," stating that Bartlett's "history of self-accommodations, while allowing her to achieve roughly average reading skills (on some measures) when compared to the general population, do not take her outside of the protective provisions of the ADA." Id. at 329 (internal quotation marks omitted). Because we concluded that Bartlett was substantially limited with respect to reading, we did not consider whether she also was substantially limited with respect to working. Id. We vacated and remanded solely as to the proper measure of compensatory damages. See id. at 331-32. A petition for rehearing, with a suggestion for rehearing en banc, was denied.

The Supreme Court granted certiorari and vacated and remanded in light of Sutton v. United Air Lines, 527 U.S. 471 (1999), Murphy v. United Parcel Serv., 527 U.S. 516 (1999), and Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999). See New York State Bd. of Law Exam'rs v. Bartlett, 527 U.S. 1031-32 (1999) (mem.). We now hold that, although the district court properly considered corrective or mitigating measures such as Bartlett's self-accommodations, see, e.g., Albertson's, 527 U.S. at 565-66, it nevertheless applied the wrong legal standard when it found that Bartlett was not substantially limited with respect to reading because she has "roughly average reading skills (on some measures) when compared to the general population." Bartlett I, 970 F.Supp. at 1120. It is not enough that Bartlett has average skills on "some" measures if her skills are below average on other measures to an extent that her ability to read is substantially limited. In fact, the district court found that Bartlett reads "slowly, haltingly, and laboriously." Id. at 1099; see also id. ("She simply does not read in the manner of an average person."). Therefore, we remand for the district court to determine, in the first instance, whether Bartlett is substantially limited in the major life activity of reading by her slow reading speed, or by any other "conditions, manner, or duration" that limits her reading "in comparison to most people." See 28 C.F.R. Pt. 35, App. A, §35.104 (1999).

We also disagree with the district court's analysis of whether Bartlett was substantially limited with respect to the major life activity of working. The district court held that "[i]f plaintiff's disability prevents her from competing on a level playing field with other bar examination applicants, then her disability has implicated the major life activity of working." Bartlett I, 970 F.Supp. at 1121. However, it is not enough for a plaintiff to prove that an impairment "implicates" a major life activity -- she is required to prove that the impairment "substantially limits" that activity. In this case, it has not been shown that Bartlett's inability to practice law results from her reading impairment, rather than from other factors that might prevent her from passing the bar. Therefore, we remand for the district court to determine, if necessary, whether it is Bartlett's impairment, rather than factors such as her education, experience or innate ability, that "substantially limits" her ability to work.

BACKGROUND

After a 21 day trial, the district court found the following relevant facts. Bartlett has a cognitive disorder that impairs her ability to read. Despite her limitation, she has earned a Ph.D. in Educational Administration from New York University, a law degree from Vermont Law School, and has met all prerequisites to sit for the New York State Bar Examination. The Board is a state entity charged with testing and licensing applicants seeking admission to the New York State Bar.

Since 1991, Bartlett has taken the bar examination five times. On at least three and possibly four separate occasions, she applied as a reading disabled candidate to take the bar examination with accommodations. She requested accommodations for the July 1991, February 1993 and July 1993 examinations. Bartlett did not seek accommodations for the February 1992 bar examination, and the record is unclear as to whether she sought accommodations for the July 1992 exam. With respect to the July 1992 exam, the district court found that "[Bartlett] claims she [applied for accommodations], but the Board has no record of the request." Bartlett I, 970 F.Supp. at 1102.

Bartlett sought unlimited or extended time to take the test and permission to tape record her essays and to circle her multiple choice answers in the test booklet rather than completing the answer sheet. The Board denied her request each time, contending that her application does not support a diagnosis of a reading disability or dyslexia. In total, Bartlett has taken the examination four times without accommodations and has yet to pass. On July 20, 1993, after the Board denied her most recent application for accommodations, she commenced this action in the district court alleging, among other things, violations of titles II and III of the ADA, 42 U.S.C. § 12101 et seq., and § 504 of the Rehabilitation Act, 29 U.S.C. § 794. In her complaint, she sought, among other things, injunctive relief in the form of reasonable testing accommodations and compensatory and punitive damages.

On July 26, 1993 -- a mere two days before the July 1993 bar examination -- the parties entered into a stipulation. Under its terms, Bartlett received some, but not all, of the accommodations she sought, including time and a half for the New York portion of the test and the use of...