United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 17, 2007 Decided December 4, 2007
No. 06-7133
CAROLYN SINGH,
APPELLANT/CROSS-APPELLEE
v.
GEORGE WASHINGTON UNIVERSITY SCHOOL OF MEDICINE
AND HEALTH SCIENCES, ET AL.,
APPELLEES/CROSS-APPELLANTS
Consolidated with
06-7134
Appeal from the United States District Court
for the District of Columbia
(No. 03cv01681)
Bruce Fein argued the cause and filed the briefs for
appellant/cross-appellee.
Carol A. Lafond argued the cause for amicus curiae the
National Disability Rights Network in support of cross-
appellee. With her on the brief were John M. Nonna and
Richard J. Cairns.
2
Henry Morris, Jr., argued the cause and filed the briefs
for appellee/cross-appellant George Washington University
School of Medicine and Health Sciences.
Robert A. Burgoyne was on the brief for amici curiae
Association of American Medical Colleges, et al., in support
of appellees.
Before: GINSBURG, Chief Judge, and EDWARDS and
WILLIAMS, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: Carolyn Singh was a
medical student at George Washington University (“GW”)
from 2000 until she was dismissed for academic reasons in
2003. Singh later sued GW, saying that it had violated the
Americans with Disabilities Act (“ADA”) by failing to
accommodate her alleged learning disabilities.
Singh began her medical studies after a high school and
undergraduate career that both parties describe as illustrious,
despite Singh’s inferior performance—as she sees it—on
timed multiple-choice tests as opposed to other means of
assessment. Due in part to her poor performance on certain
multiple-choice tests, such as the Medical College Admission
Test (“MCAT”), she was admitted to a decelerated program at
GW, with a reduced courseload and heightened standards for
academic dismissal. There she received failing or
unsatisfactory grades in several courses, based in part on
multiple-choice examinations. A faculty committee
recommended to the school’s dean, John Williams, that he
dismiss her. Shortly thereafter Dr. Anne Newman, an
independent professional psychologist chosen by Singh from a
short list recommended by GW’s Disability Support Services,
3
diagnosed Singh with dyslexia and a mild disorder of
processing speed, and recommended various accommodations
to improve her performance. Singh communicated the
diagnosis and a request for accommodations to Dean
Williams, who shortly thereafter sent her a written notice of
dismissal.
After Singh brought suit, both sides moved for summary
judgment as to whether she had a disability. The ADA
defines disability as “a physical or mental impairment that
substantially limits one or more of the major life activities of
[an] individual.” 42 U.S.C. § 12102(2)(A). Thus, a plaintiff
“is disabled under the ADA if: (1) he suffers from an
impairment; (2) the impairment limits an activity that
constitutes a major life activity under the Act; and (3) the
limitation is substantial.” Haynes v. Williams, 392 F.3d 478,
482 (D.C. Cir. 2004). The district court granted Singh partial
summary judgment on the issue of impairment, holding that
she “suffers from some kind of mental impairment,” either “a
learning disability” or a “psychiatric disorder such as
depression.” Singh v. George Washington Univ., 368 F. Supp.
2d 58, 63 (D.D.C. 2005). But it denied summary judgment
for Singh or for GW on the issue of substantial limitation,
which it reserved for trial. Id. at 63, 68.
After a bench trial, the district court found that Singh had
failed to prove that she was disabled under the ADA; it then
entered judgment for GW. Singh v. George Washington Univ.
Sch. of Med. & Health Scis., 439 F. Supp. 2d 8 (D.D.C. 2006).
Singh appeals. GW cross-appeals, though it need not have, as
it sought no change in the final judgment in its favor. Mass.
Mut. Life Ins. Co. v. Ludwig, 426 U.S. 479, 480-81 (1976)
(per curiam); Freeman v. B & B Assocs., 790 F.2d 145, 150-
51 (D.C. Cir. 1986). In reality, GW seeks only affirmance of
the judgment, either on the grounds of the district court’s
latest opinion or on the basis of arguments that the district
4
court rejected in various interlocutory rulings. We find GW
correct in two of these arguments. Although corrections in
favor of the appellee would normally tend to support
affirmance, we cannot affirm but must remand to the district
court for reasons developed below.
* * *
GW objects to four adverse interlocutory rulings rendered
at the summary judgment stage. It contends (1) that the
district court chose the wrong comparison group by which to
measure Singh’s “substantial limitation”; (2) that the court
misidentified the relevant “major life activity”; (3) that
Singh’s request to GW for reasonable modifications under
Title III was untimely; and (4) that Singh is not “otherwise
qualified” to attend GW, even with reasonable modifications
to the University’s program. We resolve issues (1) and (2) in
favor of GW, and issues (3) and (4) in favor of Singh.
Substantial limitation. Singh argued below that she was
substantially limited in the major life activity of learning as
compared “with a population of similar age and education
level,” or, alternatively, “with what [she] could achieve if she
was either free of her learning disabilities or was provided
reasonable accommodations.” Mem. P. & A. Supp. Pl.’s
Cross Mot. Summ. J. & Opp’n Defs.’ Mot. Summ. J. (“Mem.
P. & A.”) 6. On summary judgment, the district court held
that “an ADA plaintiff can be substantially limited . . . based
on comparisons of her success to others of comparable age
and educational background.” 368 F. Supp. 2d at 67. Thus
“[m]edical students, while in medical school, can only
compare their test scores to their fellow students.” Id. GW
argues that the proper standard is whether Singh’s limitation is
substantial as compared to the average person in the general
population. We agree with GW.
5
The ADA never defines the term “substantially limits.”
Its plain text (as the district court notes) “never speaks of
making a comparison.” Id. Yet “substantial[]” is an
inherently relative term, one that demands some further
standard of measure—as do the synonyms “‘considerable’ or
‘to a large degree,’” offered by the Supreme Court in Toyota
Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S.
184, 196 (2002). In speaking of the major life activity of
performing manual tasks, the Court required that an
impairment “prevent[] or severely restrict[] the individual
from doing activities that are of central importance to most
people’s daily lives.” Id. at 198 (emphasis added). It added
that the statutory text must “be interpreted strictly to create a
demanding standard for qualifying as disabled.” Id. at 197.
The Court’s language suggests a comparison to the
general population, rather than to persons of elite ability or
unusual experience. A restriction qualifies as “severe[]” only
if it limits the impaired individual in the context of what
“most people” do in their “daily lives.” Thus Wong v. Regents
of the University of California, 410 F.3d 1052 (9th Cir. 2005),
in applying Toyota Motor, asked “whether [plaintiff’s]
impairment substantially limited his ability to learn as a
whole, for purposes of daily living, as compared to most
people,” not whether he could “keep up with a rigorous
medical school curriculum.” Id. at 1065. Similarly, most
Americans could not run a marathon, and few would regard
someone who can run a marathon—but no further—as
“severely restrict[ed]” in the major life activity of walking.
Thus, an injured ultramarathoner, who could once run 100
miles at a time, is not disabled by an impairment that forces
him to quit after 26.2 miles, even though his limitation is
substantial as compared to his unimpaired abilities or those of
his erstwhile running partners.
6
The average-person criterion also appears inherent in
Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), which
required the consideration of corrective measures (such as
eyeglasses for the visually impaired) in assessing disability.
“Because petitioners allege that with corrective measures their
vision ‘is 20/20 or better’ . . . , they are not actually disabled
within the meaning of the Act if the ‘disability’ determination
is made with reference to these [corrective] measures.” Id. at
481. In a case decided the same day, Albertson’s, Inc. v.
Kirkingburg, 527 U.S. 555 (1999), the Court extended that
principle to non-artificial offsetting measures, namely a
vision-impaired person’s “learn[ing] to compensate for the
disability by making subconscious adjustments to the manner
in which he sensed depth and perceived peripheral objects.”
Id. at 565. The Court went on: “We see no principled basis
for distinguishing between measures undertaken with artificial
aids, like medications and devices, and measures undertaken,
whether consciously or not, with the body’s own systems.”
Id. at 565-66. Similarly, a plaintiff’s diligent study or high
background intelligence may serve to mitigate the effects of a
learning-related impairment and allow a high level of
functioning. Yet measuring Singh’s limitations by comparison
to her hypothetical achievements without impairment, to her
fellow medical students, or to others of similarly elite
educational background (individuals selected in part on the
basis of their intelligence and dedication), would place the
same mitigating factors on both sides of the comparison,
rendering them effectively irrelevant.
It is intuitively appealing to measure limitation by
comparing the plaintiff’s condition impaired with her own
condition, unimpaired. There is something poignant, in some
cases even tragic, in the plight of a person cut off from
exceptional achievement by some accident of birth or history.
But the ADA is not addressed to that plight. Rather, it is
designed to enable the disabled, as a group, to participate in
7
mainstream society. The statute notes that “historically,
society has tended to isolate and segregate individuals with
disabilities”; that “people with disabilities, as a group, occupy
an inferior status in our society, and are severely
disadvantaged socially, vocationally, economically, and
educationally”; and that “individuals with disabilities are a
discrete and insular minority who have been . . . relegated to a
position of political powerlessness.” 42 U.S.C. § 12101(a)(2),
(6), (7). Congress found that discrimination denies this group
“the opportunity to compete on an equal basis . . . , and costs
the United States billions of dollars in unnecessary expenses
resulting from dependency and nonproductivity”; the ADA
therefore seeks to offer the disabled “equality of opportunity,
full participation, independent living, and economic self-
sufficiency.” Id. § 12101(a)(8)-(9). A plaintiff who, despite
an impairment, can participate in all major life activities at the
level of the average person in the general population neither is
denied “independent living and economic self-sufficiency,”
nor burdens society with “dependency and nonproductivity,”
nor falls within the kind of “isolate[d] and segregate[d]”
minority described by the statute’s text. The ADA promotes
equal opportunity for the disabled, but only after Toyota
Motor’s “demanding standard” is met.
This understanding gains credence from its adoption by
executive agencies purporting to define “substantially limits.”
The ADA does not delegate authority to any agency to define
“disability” or its component terms by regulation, see Sutton,
527 U.S. at 479, yet both the Equal Employment Opportunity
Commission (“EEOC”) and the Department of Justice
(“DOJ”) have done so. The EEOC describes an individual as
substantially limited if she is either “[u]nable to perform a
major life activity that the average person in the general
population can perform,” or “[s]ignificantly restricted as to the
condition, manner or duration under which an individual can
perform [the major life activity] as compared to the condition,
8
manner, or duration under which the average person in the
general population can perform that same major life activity.”
29 C.F.R. § 1630.2(j)(1)(i)-(ii). The DOJ similarly defines
“substantially limited” as being “restricted as to the
conditions, manner, or duration under which [the major life
activity] can be performed in comparison to most people.” 28
C.F.R., pt. 36, app. B. It illustrates this definition by noting
that “[a] person who can walk for 10 miles continuously is not
substantially limited in walking merely because, on the
eleventh mile, he or she begins to experience pain, because
most people would not be able to walk eleven miles without
experiencing some discomfort.” Id.
Without deciding what respect these regulations are due,
see Sutton, 527 U.S. at 480, we note that the average-person
standard is currently the law in all of our sister circuits to have
addressed the matter, some of those circuits according a
degree of deference (sometimes substantial) to the agency
interpretations. See Wong, 410 F.3d at 1065; Ristrom v.
Asbestos Workers Local 34 Joint Apprentice Comm., 370 F.3d
763, 769 (8th Cir. 2004) (asking whether the plaintiff’s
impairments “limit his ability to learn to a considerable or
large degree as compared to the average person in the general
population”); Palotai v. Univ. of Md. at Coll. Park, 38 F.
App’x 946, 955 (4th Cir. 2002) (comparing the plaintiff to the
“average person in the general population”); Emerson v. N.
States Power Co., 256 F.3d 506, 511 (7th Cir. 2001)
(employing the average-person standard in the context of
learning); Bartlett v. N.Y. State Bd. of Law Exam’rs, 226 F.3d
69, 81-82 (2d Cir. 2000) (“[T]he proper reference group is
‘most people,’ not college freshmen.”); Gonzales v. Nat’l Bd.
of Med. Exam’rs, 225 F.3d 620, 627 (6th Cir. 2000) (“[T]he
ADA compares the performance of an individual who alleges
a restriction in a major life activity to that of ‘most people.’”);
Bowen v. Income Producing Mgmt. of Okla., Inc., 202 F.3d
1282, 1287-88 (10th Cir. 2000) (noting that plaintiff was not
9
substantially limited in his ability to learn given that “even
after his injury, [plaintiff] retained greater skills and abilities
than the average person in general”); Bercovitch v. Baldwin
Sch., Inc., 133 F.3d 141, 156 (1st Cir. 1998) (holding that,
because a student’s “achievement remained consistently
above average,” the plaintiffs had not “met their burden of
showing a probability of success that [he] suffered a
substantial limitation of a major life activity”); Soileau v.
Guilford of Maine, Inc., 105 F.3d 12, 15-16 (1st Cir. 1997)
(“[Limitation] is to be measured in relation to normalcy, or, in
any event, to what the average person does.”).
In contrast, the district court relied on and extended the
EEOC’s separate definition of substantial limitation in the
purported major life activity of working,1 a definition that
compares individuals to “the average person having
comparable training, skills and abilities” in their ability “to
perform a class of jobs or a broad range of jobs in various
classes.” 29 C.F.R. § 1630.2(j)(3)(i). The district court found
this “more specific” comparison to be “more applicable,” and
it therefore read the EEOC’s regulations to require
comparisons “to people of similar age and educational
background” in the activity of learning as well. 368 F. Supp.
2d at 66. This was a misreading of the regulations. The
EEOC includes learning among a list of many major life
activities, 29 C.F.R. § 1630.2(i), and applies the comparable-
training standard only to working. We are reluctant to extend
the EEOC’s comparable-training standard beyond the
agency’s own regulations, especially in light of Toyota
1
Neither the Supreme Court, see Toyota Motor, 534 U.S. at
200, nor this court, see Duncan v. Wash. Metro. Area Transit Auth.,
240 F.3d 1110, 1114 n.1 (D.C. Cir. 2001) (en banc), has yet decided
whether working is a major life activity.
10
Motor’s observation that “[n]othing in the text of the [ADA],
our previous opinions, or the regulations suggests that a class-
based framework [of major life activity analysis] should apply
outside the context of the major life activity of working.” 534
U.S. at 200.
Singh defends the district court’s comparison to those of
“similar age and educational background” on the ground that
it would be unreasonable to compare her to “newborns” and
“centenarians.” Singh Reply Br. 23. But the statutory
findings describe the disabled population as “increasing as the
population as a whole is growing older,” 42 U.S.C.
§ 12101(a)(1), which would be inconsistent with a definition
of disability that controls for age. Moreover, an age-based
comparison might have perverse consequences for the ADA’s
application. If a 97-year-old woman with hip problems has
difficulty walking, it would be strange to tell her that she
walks at least as well as the average 97-year-old—that is, not
well at all—and is therefore not disabled or entitled to
reasonable accommodations.
While we need not explore the ADA’s outer reaches to
decide this case, it seems that the law may already provide
sensible means of addressing extreme age or youth. For one
thing, the medical definition of an impairment will frequently
make reference to age; the mental development of a six-year-
old is fine for six-year-olds, but not for their parents. For
another, the ADA requires that the impairment be the
effective cause of the plaintiff’s limitation; a newborn with a
malformed foot cannot walk as well as the average person, but
he is not disabled under the ADA, because even perfectly
healthy newborns cannot walk. Thus, if a dyslexic seven-
year-old cannot learn as well as the average person, a court
might begin by comparing his learning ability to that of the
average seven-year-old, cf. Bercovitch, 133 F.3d at 156, using
11
the comparison to clarify how much limitation the impairment
is responsible for.
Finally, we note that any measure of substantial limitation
that might change based on a plaintiff’s particular educational
environment—e.g., a comparison of “[m]edical students . . . to
their fellow students,” Singh, 368 F. Supp. 2d at 67—would
make disabled status vary with a plaintiff’s current career
choices, and would fail to achieve the ADA’s additional
purpose of providing “clear, strong, consistent, [and]
enforceable standards” to address discrimination. 42 U.S.C.
§ 12101(b)(2) (emphasis added). And comparing the impaired
plaintiff with the counterfactual unimpaired plaintiff would
pose a similar risk of inconsistency, as it would sometimes
require the court to speculate on the degree to which the sort
of compensating mechanisms alluded to in Albertson’s would
have come into play in the absence of the impairment.
Major life activity. In moving for summary judgment,
Singh claimed to be substantially limited in the major life
activity of learning. Mem. P. & A. 5-6. On its own motion,
however, the district court held that the parties—by “citing
grades and scores back and forth”—had “reduced the activity
of learning to the activity of test taking.” 368 F. Supp. 2d at
64. While the court did not resolve whether test-taking is
“itself a major life activity” or merely “a crucial component of
the major life activity of learning,” it concluded that “a
plaintiff with an impairment that substantially limits her
ability to perform on tests has an actionable ADA claim.” Id.
While the district court rightly observed that tests are
often the “gatekeepers to ever higher levels of learning,” id.,
its conclusion was nonetheless error. First, test-taking itself is
12
not a major life activity.2 In Toyota Motor, the Supreme
Court defined “major life activities” as “those activities that
are of central importance to daily life,” including “such basic
abilities as walking, seeing, and hearing,” 534 U.S. at 197; see
also id. at 198 (adding that an impairment must “prevent[] or
severely restrict[] the individual from doing activities that are
of central importance to most people’s daily lives” (emphasis
added)).
Second, Toyota Motor requires a plaintiff’s limitation to
be substantial in the context of the major life activity as a
whole, and not that of a subclass within a major life activity.
The petitioner there claimed to be disabled in “performing
manual tasks” because she could not work with her arms at
shoulder level for a substantial period of time. 534 U.S. at
201. The Court, however, asked whether she could “perform
the variety of tasks central to most people’s daily lives,” as
opposed to the class of “tasks associated with her specific
job.” Id. at 200-01. As noted above, Toyota Motor found
such a “class-based framework” inappropriate “outside the
context of the major life activity of working.” Id. at 200.
Plainly picking a comparison activity presents a problem
similar to that of picking a comparison group. Every
subdivision invites parallel subdivisions; if a difficulty with
timed multiple-choice tests qualifies, why not difficulties in
every other element of the learning process? If a substantial
limitation in any element of learning (and of every other
recognized major life activity) were itself sufficient to show
substantial limitation in a major life activity, the number of
2
Because in the trial court Singh claimed only a limitation in
learning, we need not decide whether other subcomponents of
learning, such as reading or “processing information,” constitute
major life activities.
13
disabled would balloon far beyond the Court’s understanding
of Congress’s intent.
Though we reject the idea that test-taking per se is a
major life activity (or, equivalently, a “crucial component”
thereof as envisioned by the district court), plaintiff’s test-
taking difficulties can obviously play a role in the
“individualized assessment,” required by Toyota Motor, 534
U.S. at 199; cf. id. at 200-01, of whether her limitation in the
major life activity of learning is substantial. A plaintiff who is
limited in only part of a major life activity—e.g., one who is
severely nearsighted, or who can hear loud noises but not soft
ones—may still be disabled under the ADA, but only if the
limitation is substantial from the perspective of the major life
activity as a whole. “The key obviously is the extent to which
the impairment restricts the major life activity.” Knapp v. Nw.
Univ., 101 F.3d 473, 481 (7th Cir. 1996).
Timeliness. Discrimination under Title III includes “a
failure to make reasonable modifications in policies, practices,
or procedures . . . unless the entity can demonstrate that making
such modifications would fundamentally alter the nature of
[the public accommodation].” 42 U.S.C. § 12182(b)(2)(A)(ii).
GW argues that Singh’s request for reasonable modifications
was untimely, as she did not notify the school of her diagnosis
or disability until a faculty committee had already
recommended her dismissal. It further argues that it had no
duty to modify its program for Singh without notice of her
disability. See Kaltenberger v. Ohio Coll. of Podiatric Med.,
162 F.3d 432, 437 (6th Cir. 1998); see also Crandall v.
Paralyzed Veterans of Am., 146 F.3d 894, 897-98 (D.C. Cir.
1998) (construing Title I); Wynne v. Tufts Univ. Sch. of Med.,
976 F.2d 791, 795 (1st Cir. 1992) (construing the Rehabilitation
Act).
14
But Singh is not challenging GW’s actions prior to notice.
She challenges GW’s actions after she informed the Dean of
her diagnosis and requested modifications, when the
University was in a position to respond. Singh, 368 F. Supp.
2d at 70. Thus, we need not address the case of the plaintiff
who, once ousted on terms applicable to a non-disabled
person, knocks on the door anew to seek reinstatement under
the ADA.
While GW invokes a so-called “no second chance”
doctrine to justify its refusal to accommodate Singh, see id. at
70-71, its argument confuses the issue of timeliness with the
underlying reasonableness of the plaintiff’s request. The
precedential authorities cited by GW and amici relied on
findings that the plaintiffs had failed to request any real
accommodation, see Hill v. Kan. City Area Transp. Auth., 181
F.3d 891, 894 (8th Cir. 1999); Siefken v. Arlington Heights, 65
F.3d 664, 666 (7th Cir. 1995); Bugg-Barber v. Randstad US,
L.P., 271 F. Supp. 2d 120 (D.D.C. 2003), that further
accommodations would not have been of any use, see
Southeastern. Cmty. Coll. v. Davis, 442 U.S. 397, 403 (1979);
Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1051 (9th
Cir. 1999); Bercovitch, 133 F.3d at 154-55, that reasonable
accommodations had already been advanced, see
Kaltenberger, 162 F.3d at 436, or that the requested
accommodations were unreasonable under the circumstances,
see Powell v. Nat’l Bd. of Med. Exam’rs, 364 F.3d 79, 88 (2d
Cir. 2004). None of these circumstances is found here. In
particular, GW points to no major commitment of resources
that would be wasted as a result of its having to consider
Singh’s accommodation claim at the time she raised it.
“Otherwise qualified.” GW suggests as an alternative
ground for affirmance that Singh is not “otherwise qualified”
for GW’s medical school, arguing that even had she received
her requested modifications, she would still be incapable of
15
completing her studies. We first note legal uncertainty as to
whether a Title III plaintiff must be “otherwise qualified” in
this sense. Title III of the ADA contains neither the phrase
“otherwise qualified” nor “qualified individual,” but such
phrases are in Titles I and II, as well as in the Rehabilitation
Act. Compare 42 U.S.C. § 12182(a) (“No individual shall be
discriminated against on the basis of disability in the full and
equal enjoyment of the goods, services, . . . or accommodations
of any place of public accommodation . . . .”), with id.
§ 12112(a) (“No covered entity shall discriminate against a
qualified individual with a disability . . . .”), id. § 12132
(referring to a “qualified individual with a disability”), and 29
U.S.C. § 794(a) (“No otherwise qualified individual with a
disability . . . shall, solely by reason of her or his disability,
. . . be subjected to discrimination . . . .”). Some courts have
read an equivalent requirement into Title III. See Mershon v.
St. Louis Univ., 442 F.3d 1069, 1076 (8th Cir. 2006);
Bercovitch, 133 F.3d at 154-55; see also Kaltenberger, 162
F.3d at 435.
Because of a procedural point, however, we need not
address the substantive legal issue. The district court granted
partial summary judgment to Singh on whether she was
otherwise qualified, 368 F. Supp. 2d at 68-69, and GW makes
no claim that the ruling was erroneous on the record then
before the court, consisting most importantly of the deposition
of Singh’s expert witness, Dr. Newman. At trial Dr. Newman
seemed uncertain on the issue, see Joint Appendix (“J.A.”)
644-45, a wavering that GW characterizes as Singh’s “re-
open[ing]” the issue of qualifications. GW Br. 37 n.10. GW
offers no authority holding that a party may unwittingly forfeit
the benefit of partial summary judgment through inartful
questioning of a trial witness. Facts found on partial summary
judgment are taken as established at trial. Fed. R. Civ. P.
56(d). GW neither moved in the district court to vacate the
partial summary judgment, cf. Teleflex, Inc. v. Ficosa N. Am.
16
Corp., 299 F.3d 1313, 1321 (Fed. Cir. 2002), nor otherwise
gave effective notice that it sought to disestablish the prior
finding. A trial court’s reopening of such an issue without
notice to the parties is error, and reversible error if it causes
substantial prejudice. Leddy v. Std. Drywall, Inc., 875 F.2d
383, 386-87 (2d Cir. 1989). It is plainly impermissible for a
party to lie low and then, the record having closed, label the
testimony a “reopening.”
* * *
As we ordinarily review factual findings only under the
deferential standard of clear error, it might seem that with GW
having scored wins on two material legal issues, it would be
easy to affirm the district court’s decision in its favor. But
when the trial court’s route to its findings features self-
contradiction and confusion, we may not so defer. Lyles v.
United States, 759 F.2d 941, 944 (D.C. Cir. 1985). In such a
case, “the appropriate disposition of the case is to vacate the
district court’s judgment and remand for further factfinding.”
United States v. Wragge, 893 F.2d 1296, 1299 (11th Cir.
1990) (per curiam). The opinion below focused on the
elements of impairment and substantial limitation, as do we.
Impairment. In its discussion of impairment, the district
court repeated its previous finding that Singh had “an
impairment of some sort” at the time of her diagnosis, whether
a learning disability or depression. 439 F. Supp. 2d at 13
(citing 368 F. Supp. 2d at 63). The court then doubted
whether Singh had a learning disability, especially in light of
her prior academic success: “Had she the disability [i.e.,
impairment] that she claims to have, her achievement should
have been more consistently impaired [i.e., limited].” Id. Yet
the court also rejected the depression hypothesis, stating that
Singh “offered no evidence that her poor performance was
17
due to depression, and in fact disputed whether she was ever
depressed.” Id. at 14. In the end, the court flatly “decline[d]
to make a finding as to her mental condition.” Id. at 15 n.7.
We cannot tell whether the court fully reversed its earlier
finding of impairment, thus ruling on the point in favor of
GW, or retained some finding of impairment.
Our review is made more difficult by the court’s failure to
state important factual findings specially in its “Findings of
Fact,” cf. Fed. R. Civ. P. 52(a), and by its intermixing of the
legal standards of impairment with those of substantial
limitation. For example, it doubted whether Singh’s “success
in other reading and comprehending tasks . . . is consistent
with a reading disorder,” adding in the next sentence that “[i]n
any event, it is not consistent with a determination that the
impairment substantially affects a major life activity.” 439 F.
Supp. 2d at 13-14.
The same problem infects the court’s refusal, “for two
reasons,” to credit Singh’s primary evidence of impairment,
her diagnosis by Dr. Newman. Id. at 15. First, it found Dr.
Newman to lack experience in diagnosing learning
disabilities, and implied that her testimony therefore “failed to
prove that plaintiff’s difficulties are due to a learning
disability.” Id. This statement could mean that Singh
suffered no learning disorder at all (reading “disability” to
mean impairment), or that if she did, her academic troubles
were caused by other factors (a substantial limitation issue).
Second, the court noted that “a mere diagnosis [of an
impairment] is not sufficient to establish a disability under the
ADA,” id. (footnote omitted)—which is true enough
(assuming our bracketed insertion was intended), but the
observation speaks only to the element of limitation, not
impairment. Thus, we cannot be certain what findings the
court would have made as to impairment had it addressed that
issue independently.
18
Substantial limitation. The district court considered
Singh’s evidence of substantial limitation “overwhelmingly
anecdotal,” id., and gave it little weight, especially as
compared to the testimony of GW’s expert witness, Dr. Rick
Ostrander. Yet in doing so the court mischaracterized Dr.
Ostrander’s testimony, to a degree that undermines the
reliability of its findings.
First, in opposition to Singh’s claim of particularly poor
performance on multiple-choice tests, the court stated that Dr.
Ostrander “did not perceive plaintiff’s record as reflecting
glaring inconsistencies between multiple choice or reading
tasks and tests in other areas or formats.” Id. at 15-16. Dr.
Ostrander testified at length as to Singh’s performance on the
Scholastic Aptitude Test (“SAT”), which he considered
consistent with her intelligence, as measured by the Wechsler
Adult Intelligence Scale (“WAIS”). J.A. 701-08, 711-13.
Yet, though he speculated as to whether Singh’s MCAT
scores were similarly consistent, J.A. 709-11, 713-14, he
specifically refused to find either consistencies or
inconsistencies in her record based upon her performance on
any exams aside from the SAT and WAIS, citing insufficient
data. J.A. 720-26, 728-31, 737-41, 745-46. Dr. Ostrander
testified that the only “objective” data he or anyone could
provide related to whether her SAT scores were consistent
with her IQ as measured by the WAIS. J.A. 722-26, 739-41.
Though the court’s phrase is literally true, it seems to turn a
gap in Dr. Ostrander’s testimony into affirmative support for
“consistency.”
Second, the court described it as Dr. Ostrander’s
“professional opinion that [Singh’s] performance worsened as
she progressed into more competitive environments. As she
became surrounded by smarter peers, he testified, it is not
surprising that she would find herself having to work harder.”
439 F. Supp. 2d at 16. These propositions are found nowhere
19
in Dr. Ostrander’s testimony. While Dr. Ostrander did note
that medicine is an “incredibly demanding field,” J.A. 747,
and that he considered Singh’s performance in the sciences
particularly modest, J.A. 714, he never attempted to compare
her class performance in different environments or over time.
As we have explained, Dr. Ostrander testified that he could
speak only to her results on the SAT and WAIS.
Third, the court appeared to attribute to Dr. Ostrander the
proposition that “based on her Scholastic Aptitude Test
scores, [Singh’s] achievement in medical school was not
necessarily inconsistent with her abilities.” 439 F. Supp. 2d at
16. While Dr. Ostrander testified that Singh’s SAT and
WAIS scores were consistent with each other, as noted above,
he refused to compare her standardized test scores (or her
innate abilities) with her performance on medical coursework.
We do not know how the district court would have
weighed Singh’s evidence against a proper understanding of
Dr. Ostrander’s testimony. This invites a remand. Cf. 19
Moore’s Federal Practice—Civil § 206.03[7] (“A factual
finding will also be clearly erroneous . . . if it is based on a
fundamental confusion of the facts as revealed by the
record.”).
* * *
The judgment below is vacated, and the case is remanded
to the district court for a determination of whether Singh is
disabled under the legal standards described above.
So ordered.