| KEVIN M. McGUINNESS, |
Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm the districtcourt's grant of summary judgment. Because we may treat new claims asserted ina plaintiff's response to a summary judgment motion as a motion to amend andreview such claims de novo, we need not reach the issue of whether the districtcourt improperly refused to let Mr. McGuinness amend his complaint. Finally,we hold that the magistrate judge did not abuse his discretion in choosing not toimpose sanctions on the Defendant.
When Mr. McGuiness entered the University of New Mexico MedicalSchool in 1992, he had a bachelor of science degree in chemistry and biology, adegree in physiological psychology, and a doctorate in psychology. He hadworked as a forensic chemist, and he continued to work as a clinical psychologistduring medical school. Mr. McGuinness experienced anxiety in chemistry andmathematics courses in both graduate and undergraduate school but developedstudy habits that allowed him to overcome his difficulties.
At the beginning of each medical school class, the professors explainedthe school's written grading policy, which included consideration of naturalbreaks or clusters in the students' performance, as well as each student'snumerical average. During his basic biochemistry course in medical school, Mr.McGuinness informed the professor of his anxiety but indicated that he neededno test-taking accommodations. See Aplt. App. at 489, 491. He requested onlythat the professor set clear grading standards for the course and not regard him aslazy. See Aplt. App. at 491. The professor recommended that he see a clinicalpsychologist on the medical school faculty.
At the end of the basic biochemistry course, Mr. McGuinness learned thathe had received a grade of "marginal," even though his numerical averageexceeded 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 mustrepeat the first year or leave the program. When Mr. McGuinness earned another"marginal" grade in cardiovascular pulmonary physiology, more than fifteenpercent of his first-year grades were "marginal." He was offered but refused theopportunity to take makeup exams in biochemistry, and, after three makeup testsin the cardiovascular/pulmonary block, he still did not obtain a "satisfactory"grade. Mr. McGuinness chose not to repeat the first-year curriculum. Instead, hefiled suit against the University of New Mexico Medical School.
In his complaint, Mr. McGuinness attempted to assert a claim under theADA but failed to distinguish between Title I and Title II; neither did he raise aclaim under the statute's "association discrimination" provision, 42 U.S.C.
§ 12112(b)(4). Whereas Title I proscribes discrimination against employees orprospective employees because of their disabilities, see 42 U.S.C. §§12111-12112, Title II bars public entities from discriminating on the basis of disabilityin the provision of programs and benefits. See 42 U.S.C. §§ 12131-12132. Inhis 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 aclaim under the Rehabilitation Act of 1973, and (3) assert an "associationdiscrimination" claim under the ADA. See Aplt. App. at 374-76, 380-82. Hesubsequently filed a motion to extend case management deadlines that includedan 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 theground that Mr. McGuinness was not disabled within the meaning of the ADA. Although Mr. McGuinness was not allowed to amend his complaint, the districtcourt nevertheless ruled on the "association discrimination" claim. See Aplt.App. at 25-26. It held that Mr. McGuinness did not offer facts sufficient tosupport a cause of action under § 12112(b)(4) because he was neither employedby the medical school, nor did he show that the medical school discriminatedagainst him because of his association with his disabled son. See id. The districtcourt did not rule on Mr. McGuinness' Rehabilitation Act claim.
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 disputeand, if not, whether the district court correctly applied the substantive law. Id. at1081.
The parties agree that Mr. McGuinness has an "anxiety disorder" thatmanifests itself when he takes chemistry and mathematics tests. The districtcourt 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 Iand Title II claims separately, even though they did not appear in this manner inthe complaint, because Mr. McGuinness raised them both in his response to themedical school's motion for summary judgment. See Viernow v. Euripides Dev.Corp., 1998 WL 677759, at *13 n.9 (10th Cir. 1998) (citing Evans v.McDonald's Corp., 936 F.2d 1087, 1090-91 (10th Cir. 1991))( new claims raisedin plaintiff's opposition to summary judgment treated as a motion to amend thecomplaint).
According to Title II of the ADA, "no qualified individual with a disabilityshall, by reason of such disability, be excluded from participation in or be deniedthe benefits of the services, programs, or activities of a public entity, or besubjected to discrimination by any such entity." 42 U.S.C. § 12132. Under TitleII, 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.1996)(reviewing a Title II claim by a student-athlete against a high school sportsprogram). However, Mr. McGuinness' Title II claim fails because he has notshown 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 eligibilityrequirements" to receive public services or participate in a public program. 42U.S.C. § 12131(2). The term "disability" means "a physical or mentalimpairment that substantially limits one or more of the major life activities" ofthe individual. 42 U.S.C. § 12102(2)(A). According to the Supreme Court, animpairment need not appear on a specific list of disorders to constitute a"disability." See Bragdon v. Abbott, 118 S.Ct. 2196, 2202 (1998). Nor must itaffect 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, adisability can be latent and asymptomatic. See id. at 2204. However, the plainmeaning of the word "major" requires that the activity be significant, in order tobe 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 construethe statute's meaning. See Sutton v. United Airlines, 130 F.3d 893, 900 (10thCir. 1997). The regulations illustrate the meaning of "major life activity" withsuch examples as "caring for oneself, performing manual tasks, walking, seeing,hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i); seealso Sutton, 130 F.3d at 900 (following the regulations' definition of "major lifeactivity"). We assess three factors to determine whether an individual is"substantially limited" in a major life activity: (1) the nature and severity of theimpairment, (2) the duration or expected duration of the impairment, and (3) thepermanent or expected long-term impact of the impairment. See Sutton, 130F.3dat 900 (citing 29 C.F.R § 1630.2(j)(2)).
Mr. McGuinness contends that his anxiety impairs his "academicfunctioning," not his ability to work, and that the regulations' definition ofsubstantial limitations on "working" should not control the outcome of this case. However, the deciding principles of employment discrimination cases can beapplied to ADA claims in the educational context. See McPherson, 119 F.3d at460. In employment cases, we have held that an individual does not suffer adisability under the ADA if his disability does not prevent him from performing"a class of jobs or a broad range of jobs in various classes as compared to theaverage person having comparable training, skills, and abilities." Siemon v.AT&T Corp., 117 F.3d 1173, 1176 (10th Cir. 1997) (quoting 29 C.F.R. §1630.2(j)(3)(1). For example, in MacDonald v. Delta Airlines, Inc., 94 F.3d1437 (10th Cir. 1996), we held that an airline mechanic whose impaired visionprevented him from taxiing aircraft was not disabled under the ADA because hewas only disqualified from "a single, particular job." Id. at 1445; see alsoBoltonv. Scrivner, Inc., 36 F.3d 939, 942 (10th Cir. 1994) (stating that working "doesnot necessarily mean working at the job of one's choice"). By analogy, Mr.McGuinness must demonstrate that his anxiety impedes his performance in a widevariety of disciplines, not just chemistry and physics. This he has failed to do.
Moreover, Mr. McGuinness admits that, in the past, he has been able tomitigate his anxiety in chemistry and math by altering his study habits. See Aplt.App. at 19-20. Under the law of this circuit, we must consider the plaintiff'sability to mitigate his impairment in determining if that impairment substantiallylimits a major life activity. See Sutton, 130 F.3d at 902-3. Just as eyeglassescorrect impaired vision, so that it does not constitute a disability under the ADA,an adjusted study regimen can mitigate the effects of test anxiety. See id. at 903.
In the instant case, McGuinness has earned college degrees and pursued acareer in the subjects that trigger his anxiety. While he experienced difficultiesin his first-year of medical school, his poor performance did not require that heleave the program: He could have repeated the first year. As we held in Sutton,"it is the actual effect on the individual's life that is important in determiningwhether an individual is disabled under the ADA." Id. at 902. For the purposesof the ADA, inability to pursue one career, such as medicine, does not constitutea severe impact on an individual's life. See, e.g, Welsh v. City of Tulsa, 977F.2d 1415, 1419 (10th Cir. 1994) (holding that plaintiff was not disabled underthe Rehabilitation Act, which defines "disability" the same way as the ADA,merely because he could not be a firefighter).
Even if Mr. McGuinness had shown a disability under the ADA, he couldnot demand an unreasonable accommodation from the medical school. See, e.g.,Milton v. Scrivner, Inc., 53 F.3d 1118, 1124 (10th Cir. 1995). Educationalinstitutions are accorded deference with regard to the level of competency neededfor an academic degree. See Doherty v. Southern College of Optometry, 862F.2d 570, 575 (6th Cir. 1988)(discussing reasonable accommodations under theRehabilitation Act). Requiring the University of New Mexico to advance Mr.McGuinness to the next level of the medical school program would represent asubstantial, rather than a reasonable accommodation. See id. (holding that aneducation institution is not required to waive a course requirement deemedreasonably necessary for the conferral of an academic degree). For the foregoingreasons, summary judgment for the medical school is appropriate on Mr.McGuinness' Title II claim.
Because we may treat new issues raised in a plaintiff's response to asummary judgment motion as a request to amend, we also review Mr.McGuinness' § 12112(b)(4) "association discrimination" claim. See Viernow,1998 WL 677759, *13 n.9. The district court held that Mr. McGuinness did notstate a valid cause of action under the ADA's "association discrimination"provision, § 12112(b)(4), even though it refused to allow him to amend hiscomplaint to include this claim. See Aplt. App. at 25-26, 164-65. Although wenote that the district court's procedure was inconsistent, we agree that Mr.McGuinness did not satisfy the basic elements of an "association discrimination"claim.
Because the "association discrimination" provision falls under Title I ofthe ADA, the plaintiff must show an employment relationship with the defendant. See Den Hartog, 129 F.3d at 1081-82. To state a claim under Title I of theADA,the defendant must be "an employer, employment agency, labor organization, orjoint labor-management committee" that employs the plaintiff. 42 U.S.C. §12111(2),(4). Mr. McGuinness has failed to show the existence of such anemployment relationship between himself and the medical school. Unless astudent receives remuneration for the work he performs, he is not considered anemployee. See O'Connor v. Davis, 126 F.3d 112, 116 (2d Cir. 1997), cert.denied, 118 S.Ct. 1048 (1998). Nor are medical students, as opposed to medicalinterns or residents, considered "student employees" of the government. See 5U.S.C. § 5351(2).
The fact that Mr. McGuinness completed federal employment applications,took a federal oath of office, and was covered by the New Mexico Tort ClaimsAct, see Aplt. Br. at 39, does not make him an employee of a state-run medicalschool. An organization, such as a university, may confer certain benefits on anindividual and exercise a modicum of control over him without establishing amaster-servant relationship. See Graves v. Women's Prof'l Rodeo Ass'n, 907F.2d 71, 72-73 (8th Cir. 1990). Thus, as a threshold matter, Mr. McGuinnessfailed to establish the employment element of his Title I claim.
Neither did Mr. McGuinness satisfy the discrimination element of
§ 12112(b)(4). He presented evidence that the school knew he had a child withcerebral palsy, but not that such awareness was a "determining factor" in thedecision to make him repeat the first-year program. See Den Hartog, 129 F.3dat1085 (setting forth the elements of a claim under § 12112(b)(4)); Rogers v. Int'lMarine Terminals, 87 F.3d 755, 760-61 (5th Cir. 1996) (affirming summaryjudgment where plaintiff failed to show that he was terminated because of arelative's disability). Thus, we hold that the medical school is entitled tosummary judgment on the "association discrimination" claim as well.
Mr. McGuinness' cause of action under the Rehabilitation Act, 29 U.S.C.
§ 794, contains the same flaw as his ADA claims: He has not shown that hesuffers from a disability covered by the statute. The Rehabilitation Actproscribes discrimination against disabled persons who are otherwise qualifiedfor participation in programs receiving federal funding, including publicuniversities. See 29 U.S.C. § 794(a), (b)(2)(A). The statute defines "disability"in the same way as the ADA. See Bragdon v. Abbott, 118 S. Ct. 2196, 2202(1998); Siemon v. AT&T Corp., 117 F.3d 1173, 1176 (10th Cir. 1997).
An impairment limited to specific stressful situations, such as themathematics and chemistry exams which trigger Mr. McGuinness' anxiety, is nota disability under the Rehabilitation Act. See, e.g., Gonzagowski v. Widnall,115 F.3d 744, 746-47 (10th Cir. 1997). Nor is granting the plaintiff a passinggrade a reasonable accommodation if university officials believe that he has notdemonstrated competency in subject matter necessary for a medical degree. SeeDoherty v. Southern College of Optometry, 862 F.2d 570, 575 (6th Cir. 1998).
Under the authorization of the district court, a United States magistratejudge sanctioned the plaintiff for violating a court order and Rule 16-402 of theRules of Professional Responsibility. See Aplt. App. at 5-11. Mr. McGuinnessdoes not appeal this decision. Rather, he asserts that the district court shouldhave addressed misconduct by defense counsel. He contends that, by lodging acomplaint with the magistrate judge, defense counsel chilled the flow ofinformation necessary for Mr. McGuinness' case and thus improperly wielded theRules of Professional Conduct as a tactical weapon.
We review decisions to impose sanctions for abuse of discretion and notethat the "[d]etermination of the correct sanction for a discovery violation is afact-specific inquiry that the district court is best qualified to make." Ehrenhausv. Reynolds, 965 F.2d 916, 920 (10th Cir. 1992). Here, the magistrate judgedecided that plaintiff's counsel improperly obtained an affidavit from an emeritusprofessor who was the full-time assistant dean of student affairs at the medicalschool and a member of the steering committee that made decisions regarding Mr.McGuinness' status. See Aplt. App. at 279. Plaintiff's counsel violated aprotective order barring him from ex parte contact with this individual. See Aplt.App. at 86. The magistrate judge did not abuse his discretion in imposing thesanction, nor does the record reflect that he overlooked misconduct by thedefendant. Mr. McGuinness' argument is without merit.
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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*. This order and judgment is not bindingprecedent, except under thedoctrines of law of the case, res judicata, and collateral estoppel. This courtgenerally disfavors the citation of orders and judgments; nevertheless, an orderand judgment may be cited under the terms and conditions of 10th Cir. R. 36.
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