USCA1 Opinion

October 6, 1992

_________________________
No. 92-1437
STEVEN WYNNE,
Plaintiff, Appellant,
v.
TUFTS UNIVERSITY SCHOOL OF MEDICINE,
Defendant, Appellee.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
___________________
_________________________
Before
Breyer, Chief Judge,
___________
Torruella and Selya, Circuit Judges.
______________
_________________________

Robert LeRoux Hernandez, with whom Ellis & Ellis was on

________________________
______________
brief, for appellant.
Alan D. Rose, with whom Nutter, McClennen & Fish was on

_____________
brief, for appellee.

_________________________
_________________________

_________________________

SELYA,
SELYA,

Circuit Judge.
Circuit Judge.
______________

This

appeal

requires us

to

revisit a longstanding dispute between Tufts University School of

Medicine

and

occasion,

we

judgment in

Steven Wynne,
vacated

the

Tufts' favor.

Medicine, 932 F.2d 19 (1st

________
proceedings, the
for the defendant.
affirm.

a former

student.

district court's
See Wynne v.
___ _____

entry

a previous
of

summary

Tufts Univ. School of

______________________

Cir. 1991) (en banc).

district court

On

again entered

After further

summary judgment

This time around, on an augmented

record, we

Background
Background
__________
The
groves

facts pertinent

to

Wynne's banishment

the

of academe are chronicled in our earlier opinion and need

not be fully rehearsed.

A succinct summary suffices.

Wynne matriculated at Tufts

of

from

fifteen first-year

provided

for

courses.

dismissal after

granted Wynne

five

expense.
opinion,

The

results,

discrete

failures, the

dean

to repeat

Over the summer of 1984, Wynne

testing

at
in

Tufts'
detail

instance
in our

and

earlier

cognitive deficits and weaknesses in

units

differential diagnosis of

eight

guidelines

and allowed him

described

id. at 21, showed

___

processing

course

a special dispensation

neuropsychological

He failed

Although academic

the first year of medical school.

underwent

in 1983.

of

information.

dyslexia or

any other

However,

no

particularized

learning disability was made at this time.

During

Wynne's

second

tour

of

the

first-year

curriculum,

Tufts

arranged

counsellors, note-takers, and

to

supply

other aids.

him
This

with

tutors,

time, he passed

all but two courses:

pharmacology and biochemistry.

did not expel Wynne.

Instead, it permitted him

examinations in these two subjects.

failed biochemistry.

Tufts still

to take make-up

He passed pharmacology

That ended the matter.

but

Wynne was dismissed

in September, 1985.
Prior Proceedings
Prior Proceedings
_________________
In his court case, Wynne
disabled and

that Tufts

basis of his handicap.

to

allege

that

discriminated against

him on

In short order, Wynne refined

his

disability

disadvantage in taking
that

had

alleged that he was learning-

placed

him

his claim

at

an

unfair

written multiple-choice examinations

Tufts, for no good

reason, had stubbornly

Eventually,

the district court

granted summary judgment

in Tufts' favor

the

Wynne,

inability

that

because

of

his

and

refused to test

his proficiency in biochemistry by some other means.

ground

the

to

on

pass

biochemistry, was not an "otherwise qualified" handicapped person

within
1973,

the meaning of section

29

U.S.C.

504 of the

794 (1988),

as

Rehabilitation Act of

explicated by

the relevant

caselaw.
On appeal,
opinion

was

Wynne's

appeal.

aspiring

withdrawn,

medical

panel

of this

however,

We concluded
student

court

and the

reversed.

full

court

that, in determining

meets

section

504's

That

reheard

whether an

"otherwise

qualified" prong, it is necessary to take into account the extent

3

to

which

reasonable

accommodations

legitimate interests of both

that

will

satisfy

the school and the student

the

are (or

are not) available and, if such accommodations exist,

the extent

to which the institution explored those alternatives.

See Wynne,
___ _____

932

F.2d

at 24-26

County v. Arline, 480

______
______

(citing, inter
_____

U.S. 273 (1987)).

considerations

that

come

into

Rehabilitation

Act

case

are

institution,
physicians,
academic

particularly a
we formulated

institution

alia,
____

play
a

School Bd. of Nassau

_____________________
Recognizing

when
student

medical school
a

test for

adequately

the
and

the unique

parties
an

academic

training apprentice

determining whether

explored

to

the

the

availability of

reasonable accommodations:
If the institution submits undisputed facts
demonstrating that the relevant officials
within the institution considered alternative
means, their feasibility, cost and effect on
the
academic program,
and
came to
a
rationally justifiable conclusion that the
available alternatives would result either in
lowering academic
standards or requiring
substantial program alteration, the court
could rule as a matter of law that the
institution had met its duty of seeking
reasonable accommodation. In most cases, we
believe that, as in the qualified immunity
context, the issue of whether the facts

alleged by a university support its claim

that it has met its duty of reasonable
accommodation will be a purely legal one.
Only if essential
facts were
genuinely
disputed or if there
were significantly
probative evidence of bad faith or pretext
would further fact finding be necessary.
Id.
___

at

Because

26

(citation

the

summary

and internal
judgment

quotation

record

did

marks

not

omitted).

satisfactorily

address

this issue,1

we vacated the

judgment and

remanded for

further proceedings, leaving the district court "free to consider

other submissions [and] to enter summary judgment thereon

if [an

expanded record] meet[s] the standard we have set forth."

Id. at
___

28.
Following
summary

judgment

remand,

Tufts filed

accompanied

by

six

renewed motion

for

new

affidavits.

The

plaintiff filed a comprehensive opposition supported, inter alia,

_____ ____
by

his own

briefs,

supplemental affidavit.

heard

oral

argument,

submissions, and determined

The

reviewed

court below
the

that Tufts had met

parties'

read the

updated

its burden under

Wynne.
_____

In the lower

court's view, the

expanded record clearly

showed that Tufts had evaluated the available alternatives to its

current testing format and had
not practicable

in this

multiple-choice

format.

reasonably concluded that it

instance to

depart

Accordingly, the

summary judgment in Tufts' favor.

was

from the

standard

court again

entered

This appeal ensued.

Issues
Issues
______
The principal

issue on appeal is

whether, given those

____________________

1Tufts had filed only a single affidavit touching upon this

issue.
Scrutiny of that affidavit, signed by the dean, revealed
the following shortcomings: "There is no mention [in the dean's
affidavit] of any consideration of possible alternatives, nor
reference to any discussion of the unique qualities of multiple
choice examinations.
There is no indication of who took part in
the decision [not to deviate from multiple choice examinations]
or when it was made." Wynne, 932 F.2d at 28. Because we thought
_____
that a party seeking summary judgment should proffer more than
"the simple conclusory averment of the head of an institution,"
we declined to accept the dean's affidavit as a sufficient basis
for shortstopping the litigation. Id.
___
5

facts not genuinely in dispute, Tufts can be said, as a matter of

law,

either

to

have

provided

reasonable

plaintiff's handicapping condition2 or to

accommodations

for

have demonstrated that

it reached a rationally justifiable conclusion that accommodating

plaintiff

would lower

affect its

program.

plaintiff

has

academic
There

standards or

otherwise

unduly

issue:

whether

is also a secondary

advanced

significantly

probative

evidence

sufficient to ground a finding that Tufts' reasons for not making

further accommodations were pretextual or asserted in bad faith.
Standard of Review
Standard of Review
__________________
Summary
litigation.

judgment

special

place

in

civil

The device "has proven its usefulness as a means

avoiding full-dress trials

courts to

has

utilize scarce

of

in unwinnable cases,

thereby freeing

judicial resources in

more beneficial

ways."

Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.
_______
_________________

1991),

cert.
_____

denied, 112
______

summary judgment's
pleadings

role

and assay

S. Ct.
is to

2965

pierce

the parties'

895

appellate

of

review

F.2d
an

46,

order

In operation,

the boilerplate

proof in

whether trial is actually required.

Osco Drug, Inc.,
________________

(1992).

order to

of

the

determine

See id.; see also Garside v.

___ ___ ___ ____ _______
50 (1st

granting

Cir.

1990).

summary

Since

judgment

is

____________________

2There is a lingering question as to whether Wynne's

disability is such that he should be deemed "an individual with
handicaps" within the purview of 29 U.S.C.
794. Since the
court below resolved the case against Wynne on summary judgment,

we must take the facts and the reasonable inferences from them in
the light most congenial to his cause. Thus, we assume, as the
district court apparently assumed sub silentio, that Wynne
___ ________
suffers from a recognizable handicap.
6

plenary, the court of

the

entire

appeals, like the trial court,

record in

the light

most

"must view

hospitable to

the party

opposing summary judgment, indulging all reasonable inferences in

that party's favor."

Griggs-Ryan
___________

v. Smith, 904
_____

F.2d 112,

115

(1st Cir. 1990).

We

uphold

pleadings,
admissions

depositions,

of

answers

suggested
the burden

summary
to

no genuine issue as to any

56(c).

judgment

if

"the

interrogatories,

and

with the affidavits,

moving party is entitled to a

Fed. R. Civ. P.

some

grant

on file, together

that there is
the

if any, show

material fact and that

judgment as a matter of law."

When, as here, the

movant-defendant has

that competent evidence to prove

the case is lacking,

devolves upon

factual

disposition."

the

disagreement

nonmovant-plaintiff to
sufficient

Mesnick, 950 F.2d at 822.

_______

to

"document

deflect

brevis
______

This
disagreement
Anderson v.
________
"In

burden

is

discharged

relates to a genuine

fact is such

U.S. 242,

'genuine' means that

that a reasonable

if

the

issue of material

Liberty Lobby, Inc., 477

____________________

this context,

only

cited

fact.

See
___

247-48 (1986).

the evidence

jury could resolve the

about the

point in

favor of the nonmoving party [and] 'material' means that the fact
is

one

that might

governing

affect

the outcome

law." United States

_____________

of the

suit

v. One Parcel of Real Property,

______________________________

Etc. (Great Harbor Neck, New Shoreham, R.I.), 960 F.2d

____________________________________________
(1st

Cir.

1992) (citing

quotation marks omitted).

under the

Anderson,
________

477 U.S.

at

200, 204

248; internal

This requirement has sharp teeth:

the

plaintiff "must present definite, competent evidence to rebut the

motion."

Mesnick,
_______

conjectural
that

950 F.2d

at 822.

Such evidence "cannot

or problematic; it must have

be

substance in the sense

it limns differing versions of the truth which a factfinder

must resolve at an ensuing trial."

Mack v. Great Atl. & Pac. Tea

____
_____________________

Co.,
___

871 F.2d

cautioned,

179,

181 (1st

evidence

significantly

that

Cir.

"is

probative"

1989).

merely

cannot

As

the Court

has

or

not

colorable

deter

summary

is

judgment.

Anderson, 477 U.S. at 249-50 (citations omitted).

________
Discussion
Discussion
__________

We have carefully reviewed the amplitudinous record and

are

fully satisfied

granting
genuine

that

the district

summary judgment.
issue as to

Fairly

court

did not

err

in

read, the record presents no

any material fact.

Because

this case has

consumed so many hours of judicial time, we resist the temptation

to

wax longiloquent.

Instead, we

add

only a

few

decurtate

observations embellishing what the en banc court previously wrote

and

remarking

the significance

of

the

new materials

adduced

below.
First:
First:
the gaps

Following remand,

that wrecked its

The expanded

Tufts satisfactorily filled

initial effort

at summary

record contains undisputed facts

considerable

detail,

alternative

means"

conclusion"

regarding

accommodations.

that

and

Tufts'

"came
the

Wynne,
_____

to

adverse
932

F.2d

demonstrating, in

hierarchy

"considered

rationally

justifiable

effects
at

judgment.

26.

of

such
Tufts

putative
not

only

documented

the importance

of biochemistry

in a

medical school

curriculum, but explained why, in the departmental chair's words,

"the

multiple choice format provides the fairest way to test the

students' mastery of

the subject matter of biochemistry."

Tufts

likewise explained what thought it had given to different methods

of

testing

proficiency

alternatives

to

in

biochemistry and

multiple-choice

respect to make-up

examinations.

testing,

why

it

eschewed

particularly

In so doing,

with

Tufts elaborated

upon the unique qualities of multiple-choice examinations as they

apply to biochemistry and offered an exposition of the historical

record

to show

administered

to

the

background against

Wynne.

In short,

which

Tufts

such tests

were

demythologized

the

institutional thought processes leading to its determination that

it

could

not

deviate

from its

Wynne's professed disability.

require

substantial

academic

standards,

trained

program

format

to accommodate

It concluded that to do
alterations,

and devalue

physicians carrying

wonted

the

Tufts'

result
end

so would

in

lowering

product

highly

prized credential

of a

Tufts

degree.
To
not

be sure, Tufts' explanations, though plausible, are

necessarily

evidence

ironclad.

that at least one

For instance,

Wynne

other medical school

has

offered

and a national

testing service

occasionally allow oral renderings

choice examinations
point

in respect to

is not whether

dyslexic students.

a medical school is

making program-related decisions.

of multiple-

But, the

"right" or "wrong" in

Such absolutes rarely apply in

the

context

of

subjective decisionmaking,

scholastic setting.

particularly

in

The point is that Tufts, after undertaking a

diligent assessment of the available options, felt itself obliged

to make

"a professional,

accommodation
27-28.

[was] simply not

Phrased

inevitably, that
imposing

an

program.

With

record, and
deficiency

another way,

(and
the

for its
with the

that

available."

diligence

of

its

judgment clearly

spoiled

932 F.2d at

Tufts decided, rationally

injurious) hardship

fact of

[a] reasonable

Wynne,
_____

no further accommodation could

undue

justification

academic judgment that

Tufts'

be made without
on

the

academic

assessment
shown in

the judgment
original

if not

and

the

the augmented

uncontroverted, the
effort

at

brevis
______

disposition has been cured.

Second:

The undisputed facts show

that Tufts neither

Second:
ignored

Wynne nor

contrary,

turned a

the defendant

failing biochemistry
suggestion

deaf

ear to

(a) warned

Wynne in

and suggested

that Wynne

scotched);

his plight.
1983 that

he defer his
(b) arranged

the

he was

examination (a
for a

of neuropsychological

courses

in his freshman year; (c) waived the rules and permitted

repeat the

after Wynne

complete

battery

Wynne to

tests

To

first-year curriculum; (d)

failed

eight

furnished Wynne

access to tutoring, taped lectures, and the like; (e) allowed him
to

take

untimed

examinations

in

examinations;
pharmacology and

failed both courses.

Given

this case, we

think that a

do not

and

(f)

gave

biochemistry

the other

him
after

make-up

he again

circumstances extant

reasonable factfinder

in

could

10

conclude that Tufts, having volunteered such an array of remedial

measures,

was

accommodation

guilty
merely

of
because

failing
it

to

did

make

not

also
____

reasonable
offer

Wynne,

unsolicited, an oral rendering of the biochemistry examination.

Third:
Third:

Reasonableness

is not

constant.

To

the

contrary, what is reasonable in a particular situation may not be

reasonable in a

different situation

differences are relatively

slight.

Rodriguez-Morales, 929 F.2d 780,

_________________
that "reasonableness

even

if the

situational

Cf., e.g., United States v.

___ ____ ______________

785 (1st Cir. 1991) (concluding

has a protean quality"),

cert. denied, 112

_____ ______

S. Ct. 868 (1992); Sierra Club v. Secretary of the Army, 820 F.2d
___________
_____________________

513, 517 (1st Cir. 1987) (paraphrasing Emerson and observing that
"reasonableness 'is a
the

same.'").

mutable cloud, which

Ultimately,

what is

is always and

reasonable

depends

never

on a

variable mix of factors.

In the section 504
be expected

milieu, an academic institution can

to respond only

with knowing).

This means,

observed,

for a

that

to what it knows
as the Third

medical school

Rehabilitation Act, [it]

know of [a student's] handicap."

Pa., 926
___

F.2d 1368, 1381 (3d

this inquiry is whether

on

request

Thus, we

must view

recently

be liable

under the

reasonably expected to

Nathanson v. Medical College of

_________
__________________

Cir. 1991).

relevant aspect of

the student ever put the

notice of his handicap

specific

Circuit has

"to

must know or be

(or is chargeable

by making "a

for special

sufficiently direct and

accommodations."

the reasonableness of
11

medical school

Id. at
___

1386.

Tufts' accommodations

against the backdrop of what Tufts knew about Wynne's needs while
he was enrolled there.
Several

factors

are

entitled

equation, including the following:

as dyslexic

had taken,

and

in

passed,

this

(b) the school gave

and "second chances"

virtually every accommodation that

Wynne

weight

(a) Wynne was never diagnosed

while enrolled at Tufts;

number of special dispensations

to

him a

including

he seasonably suggested;

(c)

multiple-choice examinations

in

several courses; and (d) he never requested, at any time prior to

taking and
rendering

failing the
be

third

substituted

multiple-choice

test.3

biochemistry exam,

for

the

Under

believe a rational factfinder

standard

that an

version

these circumstances,

oral

of

the

we do

not

could conclude that Tufts' efforts

at accommodation fell short of the reasonableness standard.

Fourth:
Fourth:

Wynne's allegations

of pretext do

prohibitory doubts

about the reasonableness of

accommodations

about

alternatives
school's

or
to

the

honesty

multiple-choice

educational

plan.

of

When

pretext

Tufts' attempted

its

examinations
is

not raise

assessment
vis-a-vis
at

issue in

of

the

discrimination case, it is a plaintiff's duty to produce specific

facts which,

reasonably viewed,

tend logically to

undercut the

____________________

3In his appellate brief, Wynne excoriates Tufts for its

failure to provide him "with the one simple accommodation he has
asked for and believes would make a difference:
that the
multiple choice examination in biochemistry be administered to
him orally on an untimed basis with the assistance of a trained
reader."
Wynne neglects to mention, however, that he never
sought this type of accommodation until after Tufts sent him
packing and adversary proceedings were underway.
12

defendant's

position.

See,
___

e.g.,
____

Villanueva
__________

v.

Wellesley
_________

College, 930 F.2d 124,

_______

127 (1st Cir.), cert. denied, 112 St. Ct.

_____ ______

181

F.2d at 181.

(1991); Mack, 871

____

"rest[]

merely

inferences,

upon

measurably bolster
espousing

conclusory

and unsupported

Reynolds Tobacco Co.,

_____________________

The

896

his cause

plaintiff may neither

allegations,

improbable

speculation," Medina-Munoz
____________
F.2d

5,

(1st

Cir.

by hurling rancorous

tenuous insinuations.

See Mesnick, 950

___ _______

Yerardi's Moody St. Restaurant & Lounge, Inc.

__________________________________________________
Selectmen, 932 F.2d 89, 92 (1st Cir. 1991).
_________

v. R.J.
____

1990),

nor

epithets and

F.2d at 826;
v.

Board of
_________

Here,

Wynne's charges

comprise

more cry

than

wool.

They consist of unsubstantiated conclusions, backed only by a few

uncoordinated

evidentiary

forestall summary judgment.

fragments.

More

is

required

to

See Wynne, 932 F.2d at 26.

___ _____

Conclusion
Conclusion
__________
We

need go

no further.

In

our earlier

opinion, we

recognized the existence of a statutory obligation on the part of

an academic institution such as Tufts to consider available
of accommodating a handicapped
judgment, to produce a
attention to this
effort requires

student and, when seeking summary

factual record documenting its scrupulous

obligation.
more

Id. at
___

than lip

25-26.

service;

conceived and conscientiously implemented.

the

second

envisioned:

time

ways

around,

the undisputed

has

cleared

facts

Of course,

it must

be

the

sincerely

We think that Tufts,

the

contained

hurdle
in the

that

we

expanded

13

record, when

considered in

the deferential light

that academic

decisionmaking deserves, id. at 25, meet the required standard.

___
We
to

add a final note of caution.

this litigation

decline

their

whether

invite us

dyslexic and
entitled, upon

to paint with

joint invitation.

medical

student,

known to
timely

examination orally.

The

a broad

issue

request, to

to be so
an

brush, we

before us

authoritatively

the school

Rather, we

Although both parties

is not

diagnosed

as

afflicted, is

opportunity to

take

ever

an

are limited to the idiosyncratic

facts of Wynne's case.

The resulting record presents a narrower,

easier

believe that the

issue

and we

that issue correctly.

Affirmed.
Affirmed.
________

district court resolved

14