Pacella v. Tufts University School of Dental Med.

• Decision Date: 24 September 1999
• Docket Number: No. CIV. A. 98-11417-WGY.,CIV. A. 98-11417-WGY.
• Citation: 66 F.Supp.2d 234
• Parties: Gary PACELLA, Plaintiff, v. TUFTS UNIVERSITY SCHOOL OF DENTAL MEDICINE, Defendant.
• Court: U.S. District Court — District of Massachusetts

66 F.Supp.2d 234

Gary PACELLA, Plaintiff, v. TUFTS UNIVERSITY SCHOOL OF DENTAL MEDICINE, Defendant.

No. CIV. A. 98-11417-WGY.

United States District Court, D. Massachusetts.

September 24, 1999.

Matthew Cobb, Law Firm of Matthew Cobb, Boston, MA, for Gary Pacella, Plaintiff.

Diane Rosse, Nutter, McClennen & Fish, Nancy A. McGuire, Nutter, McClennen & Fish, LLP, Boston, MA, for Tufts University School of Dental Medicine, Defendants.

MEMORANDUM AND ORDER

YOUNG, Chief Judge.

I. Introduction

The defendant, Tufts University School of Dental Medicine ("Tufts"), has filed a motion for summary judgment with respect to the claims of a former student, Gary Pacella ("Pacella").

After Tufts dismissed him in 1997 purportedly for failing to perform at an acceptable academic level, Pacella sued Tufts for (i) violations of the Americans With Disabilities Act (the "Disabilities Act"), 42 U.S.C. §§ 12101, et seq., and violations of the Rehabilitation Act of 1973 (the "Rehabilitation Act"), 29 U.S.C. §§ 794, et seq., alleging that he was discriminated against on the basis of a visual disability; (ii) breach of contract for Tufts' alleged failure to abide by certain dismissal procedures embodied in the Student Handbook; and (iii) violations of the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103 (the "Equal Rights Act") on the basis that Tufts' alleged discrimination denied Pacella the equal protection of laws.¹

II. Summary Judgment Standard

Summary judgment is appropriate if, after reviewing the facts in the light most favorable to the nonmoving party, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). A "genuine" issue is one that "properly can be resolved only by a finder of fact because [it] may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A "material" fact is one that "might affect the outcome of the suit" under the applicable legal standard. Id. at 248, 106 S.Ct. 2505.

The burden is on the moving party to show the absence of a genuine issue of material fact. See Finn v. Consolidated Rail Corp., 782 F.2d 13, 15 (1st Cir.1986). If the movant sustains his or her burden, the nonmovant can only survive summary judgment if he or she proffers evidence supporting the existence of a genuine issue of material fact to be resolved at trial. See Donovan v. Agnew, 712 F.2d 1509, 1516 (1st Cir.1983).

III. Violations of the Disabilities and Rehabilitation Acts

In Counts I and II of the complaint, Pacella avers that Tufts failed reasonably to accommodate his visual disability, amblyopia of the left eye and severe myopia of the right eye,² and consequently seeks remedies under the Disabilities Act and the Rehabilitation Act (collectively, the "Acts"). Title III of the Disabilities Act, 42 U.S.C. § 12182, provides that "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation ...." Similarly, the Rehabilitation Act, 29 U.S.C. § 794(a), states that "[n]o otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, 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 ...." Both statutes apply to discrimination by educational facilities in receipt of federal funds such as Tufts. See 42 U.S.C. § 12181(7)(J) and 29 U.S.C. § 794(b)(2)(A).

By its motion, Tufts seeks summary judgment on two grounds. First, Tufts argues that under a very recent duo of Supreme Court decisions, Pacella is not "disabled" and thus cannot seek remedies under the Acts. Second, even if Pacella's visual impairment is a "disability," the record facts establish that "the accommodations which Pacella claims he sought were either provided or, by his own admission and that of his ophthalmologist, would not have affected his performance." Def. Mem. at 1.

A. Relevant Facts Concerning Pacella's Alleged Disability

It is undisputed that as of June 6, 1995 Pacella had "amblyopia of his left eye due to severe high myopia and ha[d] only 20/200 best correction in his left eye due to this amblyopia." McGuire Aff., Ex. 5.³ This condition left him "essentially monocular with his right eye." Id. Pacella's right eye also had a "significant myopia ...." Id.

According to his ophthalmologist, Pacella owned diopter glasses and contact lenses that he used in an attempt to correct his vision. Id. By wearing his diopter glasses, Pacella improved the vision in his right eye to "20/20 correctable vision." Id. At the same time, however, the myopia caused images to be "minified by approximately 25 percent," id., and he would have "some reduction of contrast vision," id., Ex. 6 at 67. This minification "combined with his monocular status ... reduce[d] his depth perception and stereo tactic function under any task of reduced illumination." Id., Ex. 5.

By all reports, Pacella was able best to improve his vision by wearing his soft contact lenses. See id., Ex. 3. In so doing, Pacella reduced his minification problem to within three to four percent distortion. See id., Ex. 6 at 73. Due to an astigmatism, however, his right eye vision with contacts was only 20/25 "which would give him some difficulty with very fine detail" under reduced illumination.⁴ Id., Ex. 5. Overall, by using his contact lenses, he was "able to function like a normal person [except it was] a little bit harder for him [to read] really fine print." Id., Ex. 6 at 81. To improve matters, Pacella also obtained a prescription for occupational bifocals which, by his own admission, addressed his need to be able to discern detail. See id., Ex. 1 at 71.

Apparently, the only significant visual problem Pacella has been unable to correct with any physical optical aide is his lack of stereopsis, i.e., depth perception, caused by his monocular vision. See Pl. Opp. Mem., Ex. 3 at 2. Pacella admits, however, that he "systematically" used "visual cues," namely association, shading, and touching, to "help [him] compensate for [his] deficit in depth perception." Id., Ex. 1, at ¶ 10. Moreover, although Pacella's lack of depth perception slowed down "significantly" the amount of time it took him to perform "assignments where relief delineation was obviously required," by comparison, his non-sight impaired classmates performed the same tasks only "somewhat" faster. Id. at ¶¶ 12, 14, 15

B. Defining "Disability"

In any claim of discrimination brought under the Disabilities Act or the Rehabilitation Act, a plaintiff must first establish that he has a "disability." See Tardie v. Rehabilitation Hosp. of Rhode Island, 168 F.3d 538, 541-42 (1st Cir.1999). Under both acts, a disability is defined as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. § 12102(2)(A); 29 U.S.C. § 705(20)(B)(i).⁵ In two recent cases decided on the same day, the Supreme Court significantly limited what types of disabilities qualify for protection under the Acts. First, in Sutton v. United Air Lines, Inc., ___ U.S. ____, ____, 119 S.Ct. 2139, 2148, 144 L.Ed.2d 450 (1999), the Supreme Court held that "those whose impairments are largely corrected by medication or other devices are not `disabled' within the meaning of the [Acts]." Second, in Albertsons, Inc. v. Kirkingburg, ___ U.S. ____, ____, 119 S.Ct. 2162, 2169, 144 L.Ed.2d 518 (1999), the Supreme Court concluded that courts should consider corrective measures to include "measures undertaken with artificial aids, like medications and devices, and measures undertaken, whether consciously or not, with the body's own systems." Moreover, the Albertsons Court held that a "substantially limiting" disability is more than just a condition that makes one "different" from others. See id. at 2168. Rather, the inability to enjoy a major life activity must be "considerable" or "snificantly restricted." Sutton, ___ U.S. at ____ - ____, 119 S.Ct. at 2150-51. As Chief Magistrate Judge Collings has noted, Sutton and Albertsons tacitly overruled Arnold v. United Parcel Service, Inc., 136 F.3d 854, 863 (1st Cir.1998), wherein the First Circuit held that disabilities should be determined without reference to mitigating measures. See Hurley v. Modern Continental Construction Co., Inc., 54 F.Supp.2d 85, 95 n. 11 (D.Mass. 1999).

C. Applying Sutton and Albertsons to Pacella's Condition

In light of Sutton and Albertsons, Pacella cannot claim a disability with respect to his eyesight because, as corrected, it does not substantially limit a major life activity. In this case, the most relevant examples of major life activities expressly mentioned under the Acts are "seeing" and "learning." See 34 C.F.R. § 104.3(j)(2)(ii); 29 C.F.R. 1630.2(i). With respect to "seeing," by employing corrective measures, i.e., his contact lenses and occupational bifocals, Pacella had 20/25 (or 20/30+3) vision with only slight image minification. Although he was monocular with his right eye, his contact lenses allowed him to function "like a normal person [except it was] a little bit harder for him [to read] really fine print." McGuire Aff., Ex. 6 at 81. It stretches the imagination to say that a slightly reduced ability to read "really" fine print constitutes a "considerably limited" or "significantly restricted" ability to see. Furthermore, there is no evidence that Pacella's lack of depth perception substantially limited his major life activity of seeing; it only limited his ability to perform assignments requiring...