Friday, December 9, 2011

Appeals court upholds dismissal of disabled med student's case against GW University

United States Court of Appeals
Argued November 1, 2011 Decided December 9, 2011
No. 09-7032
Appeal from the United States District Court
for the District of Columbia
(No. 1:03-cv-01681)
Kate Bushman, Supervising Attorney, argued the cause as
amicus curiae in support of appellant. With her on the briefs
were Steven H. Goldblatt, appointed by the court, and
Elizabeth A. Spavins and Stephanie B. Lezell, Student
Carolyn Singh, pro se, filed briefs for appellant.
Henry Morris Jr. argued the cause for appellees. With
him on the brief was Kristine J. Dunne.
Robert A. Burgoyne and Ada Meloy were on the brief for
amici curiae American Council on Education, et al.
Before: ROGERS and GARLAND, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge: This appeal is before the court
following a remand. In the first appeal the court established
the legal standards the district court must apply in
determining whether Carolyn Singh, a former medical
student, had an impairment that substantially limited her in
the major life activity of learning under the Americans with
Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq.
Specifically, the court rejected both the district court’s use of
a comparison group of other medical students, holding that
the correct comparator was the average person, and its focus
on test-taking, holding that the major life activity at issue was
Singh’s ability to learn. Singh v. Geo. Wash. Univ. Sch. of
Med. & Health Scis. (“2007 Singh Appeal”), 508 F.3d 1097,
1100, 1104 (D.C. Cir. 2007). Having failed to prevail again,
Singh, assisted by amicus, contends that on remand the
district court erred by failing to apply the 2008 amendments
to the ADA and in relying on her prior academic achievement
in assessing whether she suffered from a disability under the
ADA. Because Singh fails to show legal or clear factual error
by the district court, see Cuddy v. Carmen, 762 F.2d 119, 123
(D.C. Cir. 1985), we affirm.
During Singh’s time as a medical student at George
Washington University, her poor grades placed her continued
enrollment at risk on four occasions. She had been admitted
to the University’s Decelerated Program for students with
weaker academic records, in view of her poor performance on
the standardized medical-school entrance exam (“MCAT”).
Students in the Decelerated Program have two years to
complete the curriculum that regular-matriculation students
finish in their first year. The University requires Decelerated-
Program students to maintain adequate academic performance
and publishes academic regulations that set out a procedure
for dismissal in the event of poor performance.
Despite Singh’s overall academic success in high school
and college, she quickly encountered difficulty in medical
school. Beginning in her first semester in Fall 2000 and
continuing throughout her six semesters at the University,
Singh received failing grades in multiple courses and failed to
satisfy the University’s standard-deviation requirement in
others. Nevertheless, Singh maintained an active
extracurricular schedule throughout this period, including
serving as the social chair of the University’s student council,
participating in multiple medical associations as the student
representative, and enrolling in a music course. Singh’s
pattern of poor academic performance was evaluated by the
Medical Student Evaluation Committee (“MSEC”) on three
occasions. On the first two occasions, she was advised to re-
take certain courses, to reduce or eliminate her extracurricular
activities, to improve her study habits, and generally to
concentrate on her medical studies. In the last review, when
her grades did not improve, the MSEC recommended to the
Dean of the medical school that she be dismissed. Singh was
“quite distressed” by this turn of events, Trial Tr. Nov. 22,
2005, at 150, and sought advice from the University’s
Disability Support Services, which referred her to Dr. Anne
Newman for psycho-educational testing. After interviewing
Singh about her background and administering diagnostic
tests, Dr. Newman concluded that Singh had a reading
disorder – dyslexia – as well as a mild processing-speed
disorder. Report of Anne C. Newman, Ph.D., on Feb. 19,
2003 interpretative session (“Newman Report”), at 7. Dr.
Newman recommended a number of academic
accommodations, psychotherapy, investigation of the
appropriateness of psychostimulant medication, and a
reduction in volunteer activities.
Meanwhile, the Dean of the medical school had received
the MSEC’s dismissal recommendation and he concurred. On
February 11, 2003, the Dean met with Singh and her mother
to notify Singh of the MSEC’s recommendation and his
decision to dismiss her. Singh informed the Dean of Dr.
Newman’s pending report, which she forwarded to the Dean
two weeks later. On March 5, 2003, the Dean officially
notified Singh by letter of her dismissal from the University;
the Dean later testified that Dr. Newman’s report “played no
role” in his decision to dismiss Singh. Trial Tr. Nov. 23,
2005, at 403–04.
In 2003, Singh filed a complaint alleging that the
University had unlawfully discriminated against her in
violation of the ADA. The district court granted summary
judgment in part for Singh, finding that “[a] reasonable fact
finder could only conclude that plaintiff suffers from some
kind of mental impairment,” but denied summary judgment as
to whether her learning was substantially limited. Singh v.
Geo. Wash. Univ., 368 F. Supp. 2d 58, 63 (D.D.C. 2005).
After a bench trial, the district court found that Singh did not
have a disability as defined under the ADA and entered
judgment for the University. Singh v. Geo. Wash. Univ. Sch.
of Med. & Health Scis., 439 F. Supp. 2d 8, 16 (D.D.C. 2006).
Finding that Singh had failed to show that her impairment had
caused a substantial limitation on learning, the district court
stated that, “[t]o the contrary, [Singh] appear[ed] quite able to
succeed in the major life activity of learning, including test-
taking in general.” Id. at 14.
On appeal, this court held that the proper comparison
group for the substantial-limitation determination was the
general population, not other people of comparable age and
educational background as the district court had ruled, and
that the relevant major life activity was learning, not test-
taking. 2007 Singh Appeal, 508 F.3d at 1100, 1104. The
court remanded the case, stating that the district court had
“fail[ed] to state important factual findings specially,”
“intermix[ed] . . . the legal standards of impairment with those
of substantial limitation,” and mischaracterized the testimony
of Dr. Rick Ostrander, the University’s expert witness. Id. at
On remand, the district court revised and clarified its
analysis but reached the same result as it had in 2005. Singh
v. Geo. Wash. Univ. Sch. of Med. & Health Scis. (“2009
Remand Opinion”), 597 F. Supp. 2d 89, 90 (D.D.C. 2009). In
applying the comparison-group and major-life-activity
standards established by this court and in concluding that
Singh had failed to demonstrate a disability under the ADA,
the district court concluded that it did not need to decide
whether the alleged limitation was “substantial” because
Singh “ha[d] not shown that her limitation [was] a result of
her impairment.” Id. at 96. The district court found that
Singh’s expert, Dr. Newman, had failed “to establish the
requisite causal link,” and that Singh’s “spotty, anecdotal
corroborative evidence [did] not suffice” to bolster that
causation evidence. Id. at 97. Singh appeals.
The ADA prohibits discrimination against disabled
individuals. 42 U.S.C. § 12182(a). An individual seeking to
establish a disability must prove, by a preponderance of the
evidence, see Flemmings v. Howard Univ., 198 F.3d 857, 861
(D.C. Cir. 1999), that (1) she suffers from a physical or
mental impairment; (2) the impairment relates to a “major life
activity,” and (3) the impairment “substantially limits” her in
one or more “major life activities,” 42 U.S.C. § 12102(1); see
Haynes v. Williams, 392 F.3d 478, 482 (D.C. Cir. 2004). As
established in the prior proceedings, the impairment at issue is
Singh’s learning disorder, and the corresponding major life
activity is learning.
Effective January 1, 2009, Congress amended the ADA.
See ADA Amendments Act of 2008 (“ADAA”), Pub. L. No.
110-325, 122 Stat. 3553 (2008). Congress rejected the
Supreme Court’s prior holding that the ADA set forth a
“demanding standard for qualifying as disabled,” Toyota
Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002),
as well as the holding in Sutton v. United Air Lines, Inc., 527
U.S. 471, 475 (1999), that courts should account for
mitigating measures when making disability determinations.
ADAA, § 2, 122 Stat. at 3554. The ADAA provides that the
“determination of whether an impairment substantially limits
a major life activity shall be made without regard to the
ameliorative effects of mitigating measures such as . . .
learned behavioral or adaptive neurological modifications.”
Id. § 4, 122 Stat. at 3556.
Singh contends that the district court erred in failing to
apply the ADAA, which was the law in effect at the time of
its decision on remand. The University objects to our
consideration of this contention on two grounds: forfeiture
and retroactivity. We need not address forfeiture because the
second objection is well taken.
Courts disfavor retroactive application of laws absent
clear expression of congressional intent to do so. See
Landgraf v. USI Film Prods., 511 U.S. 244, 264, 272 (1994).
This anti-retroactivity principle is grounded in the notions of
fair notice and reasonable reliance. See id. at 265. In
determining whether a statute can operate retroactively, the
court asks “whether the new provision attaches new legal
consequences to events completed before its enactment,” id.
at 270, a question that may turn on the nature of the relief
sought by the plaintiff. “When the intervening statute
authorizes or affects the propriety of prospective relief,
application of the new provision is not retroactive.” Id. at
273. Damages constitute retrospective relief and thus raise
retroactivity concerns. See id. at 281–84. The statute in
Landgraf posed retroactivity problems because it expanded
the types of relief available to plaintiffs. See id. at 253–54.
Although the Supreme Court recognized that the new
compensatory-damages provision “only reach[ed]
discriminatory conduct already prohibited by Title VII,” and
thus the defendant was already on notice that the relevant
conduct was unlawful, the new provision “affect[ed] the
liabilities of defendants,” impacted the “private parties’
planning,” and “attach[ed] an important new legal burden to
that conduct.” Id. at 282–83. As such, retroactive application
was not appropriate. Id. at 284. As a cautionary note, the
Court instructed that although “[i]t will frequently be true . . .
that retroactive application of a new statute would vindicate
its purpose more fully,” that “consideration . . . is not
sufficient to rebut the presumption against retroactivity.” Id.
at 285–86.
This court held in Lytes v. D.C. Water & Sewer Authority,
572 F.3d 936, 938 (D.C. Cir. 2009), that Congress did not
intend the ADAA to operate retroactively, pointing in
particular to Congress’ decision to set an effective date in the
future. See also Fikes v. Wal-Mart, Inc., 332 F. App’x 882,
883 n.1 (11th Cir. 2009); EEOC v. Argo Distrib., LLC, 555
F.3d 462, 469 n.8 (5th Cir. 2009); Kiesewetter v. Caterpillar
Inc., 295 F. App’x 850, 851 (7th Cir. 2008). In Lytes, the
plaintiff had sought retrospective relief, including damages
and back pay. 572 F.3d at 939. Singh emphasizes that she
does not seek monetary damages, see Singh, 368 F. Supp. 2d
at 72, and that the injunctive relief she seeks would operate in
the future and is thus prospective. To gain that relief,
however, Singh must first be reinstated, overturning the
University’s decision in 2003 to dismiss her; her complaint
seeks a declaratory judgment that she “is a student in good
standing” at the University. Compl. at 12. Much as with a
request for damages, reinstatement is backward-looking and
seeks to remedy a past unlawful act. See Lytes, 572 F.3d at
939, 945; Dave v. Lanier, 681 F. Supp. 2d 68, 72 n.3 (D.D.C.
2010). Applying the ADAA to the University’s decision in
2003 to dismiss Singh would be changing the laws that
governed the University’s liability at that time, imposing a
new legal burden on the University’s past conduct. As such,
its application would be impermissibly retroactive.
Singh also contends that the district court clearly erred on
remand in finding that her impairment did not substantially
limit her ability to learn. Specifically she takes issue with the
district court’s consideration of her past academic
achievement as compelling the conclusion that she failed to
show causation. She emphasizes that the ADA requires proof
of a present, not past, substantial limitation.
The district court’s decision on remand rested on the
factual findings that: (1) Singh had an impairment; (2) Singh
presented evidence of a limitation on her learning ability; (3)
numerous potential causes existed to explain that limitation;
and (4) Singh failed to demonstrate by a preponderance of the
evidence that her impairment, and not the other factors,
caused that limitation. Based on these findings, the district
court concluded that Singh had failed to prove causation, one
of the three elements necessary to show the presence of a
disability under the ADA. See 2009 Remand Opinion, 597 F.
Supp. 2d at 96–97. We need not decide whether Singh had an
impairment within the meaning of the ADA, or whether that
alleged impairment substantially limited a major life activity.
The district court’s factual finding on causation, see Daniels
v. Hadley Memorial Hosp., 566 F.2d 749, 756 n.49 (D.C. Cir.
1977), is not clearly erroneous and that finding alone dooms
her case. The district court identified “many reasons aside
from [Singh’s] impairment that might explain why [she] has
done relatively poorly on extremely time-limited tests.” 2009
Remand Opinion, 597 F. Supp. 2d at 96. For example, the
district court listed anxiety from the difficulty of the medical
school academic environment, “her involvement in extra-
curricular activities,” which a number of University advisors
had suggested she curtail or eliminate in view of her academic
difficulties, and poor study habits as possible causes of her
poor performance. Id. Although the district court prefaced
each of these potential causes with the word “perhaps,” id., it
referenced record evidence for each of the possible causes,
including that Singh was overextended in extracurriculars, id.
at 96 n.7, and had poor study habits, such as her admission
that she sang along to music while studying, id. at 96 n.8. The
district court also identified record evidence of yet other
possible causes for Singh’s poor performance, such as Singh’s
own testimony that attributed her academic problems “at least
in some degree to . . . being upset over the September 11th [,
2001 terrorist] attacks.” Trial Tr. Nov. 21, 2005, at 93–94
(cited by 2009 Remand Opinion, 597 F. Supp. 2d at 97 n.10).
The district court did not ignore Singh’s claim “that she
consistently perform[ed] much lower on multiple-choice tests
than on other types of assessments,” 2009 Remand Opinion,
597 F. Supp. 2d at 97, or the corroborative evidence Singh
presented, but found it to be “spotty” and “anecdotal” and
insufficient to establish the necessary causal link. Id.
Specifically, the district court found that the evidence of her
past difficulties with multiple-choice testing failed to close the
causal gap between her mental impairment and her limitation
in learning, as distinct from test-taking alone. This conclusion
holds true regardless of whether Singh was at the top or
bottom of her high school class or aced or bombed her
MCAT, because that past academic performance had no
bearing on causal factors such as Singh’s extracurricular
involvements and poor study habits. Given the totality of the
evidence, the district court did not clearly err in concluding
that Singh had failed to meet her burden to demonstrate that
her impairment caused her limitation on learning.
To establish a disability under the ADA, a plaintiff must
establish not only that she suffers from an impairment but also
that the impairment causes a significant limitation on a major
life activity. Singh presented evidence that she suffered from
a mental impairment and experienced a limitation on learning
that was evident while she was in medical school; whether or
not she did, multiple factors existed to explain the cause of
that limitation. Accordingly, because the district court did not
clearly err in finding that Singh failed to establish that her
asserted impairment caused her asserted learning limitation,
we affirm the judgment of the district court.

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