Cases & Developments

Opinion and Order denying Defendant’s Motion for Summary Judgment.  Plaintiff, a former student in the Doctor of Osteopathic Medicine program at the New York Institute of Technology who had been diagnosed with ADHD and generalized anxiety disorder and who had already once failed a required competency exam administered by the National Board of Osteopathic Medical Examiners (NBOME), brought a failure to accommodate claim against the Institute after it declined his request for a six-month leave of absence.  Plaintiff had already taken a 180-day leave that was standard for students who had failed the NBOME exam.  The Institute proposed instead a three-month leave contingent upon NBOME approving his testing accommodations and his test results being available by the start of the next semester.  In permitting plaintiff to proceed, the court found that a jury could find that the Institute’s counter-proposal was not plainly reasonable and that granting the additional time would not be an undue hardship or substantial modification of the Institute’s program.   

Opinion reversing the judgment below and dismissing for lack of jurisdiction.  Plaintiff, a former medical resident in the Texas Tech University School of Medicine emergency-medicine department who was 5’9’’ tall and weighed approximately 400 pounds, alleged disability discrimination under the Texas Commission on Human Rights Act (TCHRA) after her residency was terminated following multiple professionalism and patient safety concerns, asserting that she was dismissed due to her obesity.  Interpreting the language of the TCHRA, the Supreme Court of Texas held that weight is a physical characteristic and that obesity constitutes an impairment only when it is caused by an underlying physiological disorder or condition.  It then held that because plaintiff had presented no evidence that she had or that the University perceived her to have an underlying disorder or condition, her disability discrimination claim failed.  Without such an evidentiary showing, the University was entitled to sovereign immunity as a state institution.  

Memorandum reversing dismissal and remanding.  Plaintiff, a former student at the University of California, Irvine who was diagnosed with dyscalculia, brought a failure to accommodate claim against the University after it informed him there was no appropriate equivalent for the math requirement for the political science major.  The district court dismissed his claim as time barred, holding that his claim accrued when he received a letter from the Dean of the School of Social Sciences denying his request for a waiver.  In reversing and remanding, the Ninth Circuit held that plaintiff had plausibly alleged that he continued to pursue accommodations through the Department of Humanities and did not know of his injury until that request was ultimately denied. 

U.S. Department of Education Uniform Regulatory Agenda for Spring 2023. The filing indicates that the Department of Education plans to issue a Notice of Proposed Rulemaking (NPRM) in August 2023 to amend its regulations implementing Section 504 of the Rehabilitation Act of 1973.

Opinion reversing dismissal and remanding. Plaintiff, a former nontenured English instructor at Texas Southern University (TSU) who had symptoms of osteoarthritis in her knee and was planning FMLA leave for knee surgery, brought a state law disability discrimination claim against TSU after it terminated her employment contract for failure to attend a mandatory meeting with her Department Chair and Dean concerning her professionalism. The trial court granted TSU’s plea to the jurisdiction. In reversing and remanding, the Court of Appeals of Texas found that she sufficiently alleged that her knee condition was a disability; that the Chair was likely aware of her need for a medical accommodation from her use of a cane, use of a “knee sleeve,” and references to doctors’ appointments; and that the Chair declined her requests to change the time of the mandatory meeting with her Chair and Dean.