McGuinness v. University of New Mexico School of Medicine

• Decision Date: 04 November 1998
• Docket Number: No. 97-2249,97-2249
• Citation: 170 F.3d 974
• Parties: 133 Ed. Law Rep. 349, 9 A.D. Cases 297, 15 NDLR P 106 Kevin M. McGUINNESS, Plaintiff-Appellant, v. UNIVERSITY OF NEW MEXICO SCHOOL OF MEDICINE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 974

170 F.3d 974

133 Ed. Law Rep. 349, 9 A.D. Cases 297,

15 NDLR P 106

Kevin M. McGUINNESS, Plaintiff-Appellant, v. UNIVERSITY OF NEW MEXICO SCHOOL OF MEDICINE, Defendant-Appellee.

No. 97-2249.

United States Court of Appeals, Tenth Circuit.

Nov. 4, 1998.

Dennis W. Montoya, Law Offices of Dennis W. Montoya, Rio Rancho, New Mexico for Plaintiff-Appellant.

Paul R. Ritzma, Law Offices, Legal Bureau/RMD, State of New Mexico, Santa Fe, New Mexico for Defendant-Appellee.

Before PORFILIO, EBEL, and KELLY, Circuit Judges.

ORDER

The order and judgment filed on November 4, 1998, shall be published. The published opinion is attached to this order.

OPINION

PAUL KELLY, Jr., Circuit Judge.

Plaintiff-Appellant Kevin M. McGuinness brought this action against the Defendant-Appellee, the University of New Mexico School of Medicine ("the medical school") for violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 ("the ADA"). The district court granted summary judgment for the medical school. On appeal, Mr. McGuinness argues that genuine issues of material fact exist on the following issues: (1) whether he suffers from a disability under the ADA, (2) whether he is entitled to a reasonable accommodation for such disability, (3) the degree of discretion built into the medical school's grading policy, (4) whether he was employed by the medical school, and (5) whether the medical school discriminated against him, under 42 U.S.C. § 12112(b)(4), because of his association with his disabled son. He also contends the district court erred in refusing to allow him to amend his complaint to include Rehabilitation Act and "association discrimination" claims. Finally, he argues that the court abused its discretion in failing to address "serious misconduct" by defense counsel.

Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm the district court's grant of summary judgment. Because we may treat new claims asserted in a plaintiff's response to a summary judgment motion as a motion to amend and review such claims de novo, we need not reach the issue of whether the district court improperly refused to let Mr. McGuinness amend his complaint. Finally, we hold that the magistrate judge did not abuse his discretion in choosing not to impose sanctions on the Defendant.

Background

When Mr. McGuinness entered the University of New Mexico Medical School in 1992, he had a bachelor of science degree in chemistry and biology, a degree in physiological psychology, and a doctorate in psychology. He had worked as a forensic chemist, and he continued to work as a clinical psychologist during medical school. Mr. McGuinness experienced anxiety in chemistry and mathematics courses in both graduate and undergraduate school but developed study habits that allowed him to overcome his difficulties.

At the beginning of each medical school class, the professors explained the school's written grading policy, which included consideration of natural breaks or clusters in the students' performance, as well as each student's numerical average. During his basic biochemistry course in medical school, Mr. McGuinness informed the professor of his anxiety but indicated that he needed no test-taking accommodations. See Aplt.App. at 489, 491. He requested only that the professor set clear grading standards for the course and not regard him as lazy. See Aplt.App. at 491. The professor recommended that he see a clinical psychologist on the medical school faculty.

At the end of the basic biochemistry course, Mr. McGuinness learned that he had received a grade of "marginal," even though his numerical average exceeded seventy percent, which he believed merited a "satisfactory" grade. According to the medical school's grading policy, students who receive "marginal" grades in more than fifteen percent of their first-year courses must repeat the first year or leave the program. When Mr. McGuinness earned another "marginal" grade in cardiovascular pulmonary physiology, more than fifteen percent of his first-year grades were "marginal." He was offered but refused the opportunity to take makeup exams in biochemistry, and, after three makeup tests in the cardiovascular/pulmonary block, he still did not obtain a "satisfactory" grade. Mr. McGuinness chose not to repeat the first-year curriculum. Instead, he filed suit against the University of New Mexico Medical School.

In his complaint, Mr. McGuinness attempted to assert a claim under the ADA but failed to distinguish between Title I and Title II; neither did he raise a claim under the statute's "association discrimination" provision, 42 U.S.C. § 12112(b)(4). Whereas Title I proscribes discrimination against employees or prospective employees because of their disabilities, see 42 U.S.C. §§ 12111-12112, Title II bars public entities from discriminating on the basis of disability in the provision of programs and benefits. See 42 U.S.C. §§ 12131-12132. In his response to the medical school's motion for summary judgement, Mr. McGuinness attempted to (1) separate his Title I and Title II claims, (2) add a claim under the Rehabilitation Act of 1973, and (3) assert an "association discrimination" claim under the ADA. See Aplt.App. at 374-76, 380-82. He subsequently filed a motion to extend case management deadlines that included an informal request for leave to amend his complaint. See Aplt.App. at 203-06. The district court denied this motion. See Aplt.App. at 164-65.

The district court granted summary judgment for the medical school on the ground that Mr. McGuinness was not disabled within the meaning of the ADA. Although Mr. McGuinness was not allowed to amend his complaint, the district court nevertheless ruled on the "association discrimination" claim. See Aplt.App. at 25-26. It held that Mr. McGuinness did not offer facts sufficient to support a cause of action under § 12112(b)(4) because he was neither employed by the medical school, nor did he show that the medical school discriminated against him because of his association with his disabled son. See id. The district court did not rule on Mr. McGuinness' Rehabilitation Act claim.

Discussion

A. ADA Claims

We review a grant of summary judgment de novo. See Den Hartog v. Wasatch Academy, 129 F.3d 1076, 1081 (10th Cir.1997). Under Fed.R.Civ.P. 56(c), we must determine whether a genuine issue of material fact is in dispute and, if not, whether the district court correctly applied the substantive law. Id. at 1081.

The parties agree that Mr. McGuinness has an "anxiety disorder" that manifests itself when he takes chemistry and mathematics tests. The district court correctly held that such a disorder, limited to certain academic subjects, does not constitute a disability under the ADA. On appeal, we treat the Title I and Title II claims separately, even though they did not appear in this manner in the complaint, because Mr. McGuinness raised them both in his response to the medical school's motion for summary judgment. See Viernow v. Euripides Dev. Corp., 157 F.3d 785, 790 n. 9 (10th Cir.1998) (citing Evans v. McDonald's Corp., 936 F.2d 1087, 1090-91 (10th Cir.1991))( new claims raised in plaintiff's opposition to summary judgment treated as a motion to amend the complaint).

According to Title II of the ADA, "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Under Title II, the plaintiff does not have to be an employee of the defendant. See, e.g., McPherson v. Michigan High School Athletic Assoc., 119 F.3d 453, 459 (6th Cir.1997)(reviewing a Title II claim by a student-athlete against a high school sports program). However, Mr. McGuinness' Title II claim fails because he has not shown that he has a disability within the meaning of the ADA.

Under Title II, a "qualified individual" is someone with a disability who "with or without reasonable modifications ... meets the essential eligibility requirements" to receive public services or participate in a public program. 42 U.S.C. § 12131(2). The term "disability" means "a physical or mental impairment that substantially limits one or more of the major life activities" of the individual. 42 U.S.C. § 12102(2)(A). According to the Supreme Court, an impairment need not appear on a specific list of disorders to constitute a "disability." See Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 2202, 141 L.Ed.2d 540 (1998). Nor must it affect those aspects of a person's life that have a public or economic character. See id. at 2205. Indeed, in the case of physical impairment like HIV infection, a disability can be latent and asymptomatic. See id. at 2204. However, the plain meaning of the word "major" requires that the activity be significant, in order to be covered by the ADA. See id.

Because the ADA does not define the phrases "substantially limits" or "major life activity," this circuit has looked to the EEOC regulations to construe the statute's meaning. See Sutton v. United Air Lines, 130 F.3d 893, 900 (10th Cir.1997). The regulations illustrate the meaning of "major life activity" with such examples as "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i); see also Sutton, 130 F.3d at 900 (following the regulations' definition of "major life activity"). We assess three factors to determine whether an individual is "substantially limited" in a major life activity: (1) the nature and severity of the impairment, (2) the duration or expected duration of the impairment, and (3) the permanent or expected long-term impact of the impairment. See Sutton, 130 F.3d at 900 (citing 29 C.F.R. § 1630.2(j)(2)).

Mr. McGuinness contends that his anxiety impairs his "academic functioning," not his ability to work,...