FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS August 25, 2015
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
_________________________________ Clerk of Court
STEPHEN CUNNINGHAM,
Plaintiff-Appellant,
v. No. 14-3220
(D.C. No. 6:14-CV-01050-JTM-TJJ)
WICHITA STATE UNIVERSITY, (D. Kansas)
Defendant-Appellee.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before HOLMES, MATHESON, and BACHARACH, Circuit Judges.
_________________________________
This action is brought by Mr. Stephen Cunningham, who attended Wichita
State University’s program for physician assistants. Mr. Cunningham was
allegedly disabled by two diseases, diabetes and attention deficit disorder, which
he disclosed to the university. The diabetes allegedly caused Mr. Cunningham to
fail examinations for pharmacology and neurology, but the university allowed him
to retake both examinations. When he did, he passed in pharmacology, but failed
*
The parties have not requested oral argument, and the Court concludes that
oral argument would not materially aid our consideration of the appeal. See Fed. R.
App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we have decided the appeal based on
the briefs.
Our order and judgment does not constitute binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. Fed. R. App. P.
32.1(a); 10th Cir. R. 32.1(A).
in neurology. The failing grade in neurology led the university to terminate Mr.
Cunningham from the program, and he sued under the Americans with Disabilities
Act and the Rehabilitation Act. The district court dismissed the action, and Mr.
Cunningham appeals. We affirm.
I. The Standard of Review
In reviewing the district court’s dismissal, we engage in de novo review.
Cohon ex rel. Bass v. N.M. Dep’t of Health, 646 F.3d 717, 724 (10th Cir. 2011).
This standard requires us to determine whether Mr. Cunningham pleaded facts
that would create a plausible basis for relief under the Americans with Disabilities
Act or the Rehabilitation Act. Id.
II. The Legal Requirement of Accommodation
The two statutes prohibit exclusion from specified programs based on a
disability. See id. at 725-26 (applying the same legal standard and analysis to
claims under the Americans with Disabilities Act and Rehabilitation Act);
Robertson v. Las Animas Cnty. Sheriff’s Dep’t, 500 F.3d 1185, 1193 (10th Cir.
2007) (applying the Americans with Disabilities Act). We assume for the sake of
argument that Mr. Cunningham’s diabetes and attention deficit disorder
constituted disabilities that affected his test results. If the university knew about
these disabilities and their effects on Mr. Cunningham’s test results, the
university would have had to make reasonable accommodations as long as they
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would not have fundamentally altered the nature of the program. 28 C.F.R.
§ 35.130(b)(7); Robertson, 500 F.3d at 1196, 1197 n.10.
III. The University’s Alleged Failure to Accommodate Mr. Cunningham’s
Attention Deficit Disorder
In the complaint, Mr. Cunningham concedes that the university allowed
him to retake the two examinations. The second time, he passed the pharmacology
examination. But he again failed the neurology examination. He blames his
second failing grade on the location of the examination: an office located in a
busy hallway. According to Mr. Cunningham, his attention deficit disorder led
him to lose focus because of the activity in the nearby hallway.
The problem with this claim is that the university could not accommodate a
problem it did not know about, and Mr. Cunningham concedes that he never asked
the university to make an accommodation for his attention deficit disorder. Mr.
Cunningham suggests that the need would have been obvious to the university. If
the need would have been obvious to the university, it might have had an
obligation to make an accommodation even if Mr. Cunningham had not asked. See
Robertson, 500 F.3d at 1196 (stating that an entity may learn about a disabled
person’s need for an accommodation because it is “obvious”). But the complaint
does not include any facts indicating that Mr. Cunningham’s need would have
been obvious to the university.
In the complaint, Mr. Cunningham alleged that he
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! had disclosed his attention deficit disorder “on certain required
material forms” and
! was required to retake the neurology exam in a professor’s private
office in a busy hallway.
Appellant’s App. at 5-6. These factual allegations, if credited, would not suggest
an obvious need for accommodation from the university’s point of view. 1 As a
result, we conclude that Mr. Cunningham has failed to state a claim on which
relief can be granted under the Americans with Disability Act or Rehabilitation
Act. See Taylor v. Principal Fin. Grp., Inc., 93 F.3d 155, 164-65 (5th Cir. 1996)
(upholding summary judgment for the defendant on a claim under Title I of the
Americans with Disabilities Act, concluding that the plaintiff failed to present
evidence of a request for an accommodation for a disability that had not
manifested an obvious need for accommodation). In these circumstances, we
affirm the dismissal.
Entered for the Court
Robert E. Bacharach
Circuit Judge
1
In responding to the motion to dismiss, Mr. Cunningham stated that he is
seeking an opportunity to retake the neurology exam in the Instructional Services Lab.
Appellant’s App. at 39. There is nothing in the complaint to suggest that
! he asked the university for this accommodation or
! the need for this accommodation would have been obvious.
4