Filed: Oct. 14, 2003
Latest Update: Feb. 21, 2020
Summary: general examination.merits essentially for the reasons stated by the district court.2, Contrary to Goldstein's suggestion, we do not think that, Harvard's motion for summary judgment was limited to her claim of, failure to accommodate an actual (physical) disability.315 F.3d 43, 53 (1st Cir.
Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-2500
JENNIFER GOLDSTEIN,
Plaintiff, Appellant,
v.
HARVARD UNIVERSITY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Torruella, Lynch and Howard, Circuit Judges.
Jennifer Goldstein on brief pro se.
Michael R. Byrne, John F. Rooney, III and Melick, Porter &
Shea, LLP on brief for appellee.
October 14, 2003
Per Curiam. This appeal arises from a pro se lawsuit filed in
November 1999 by Jennifer Goldstein against Harvard University
alleging violation of Title III of the Americans with Disabilities
Act ("ADA"), 42 U.S.C. § 12182, in connection with Goldstein's
forced withdrawal from a Ph.D. program in the Department of Romance
Languages and Literatures following her failure to take a general
examination in August 1993, the end of her fifth year of graduate
study. Goldstein's complaint alleged two theories under the ADA:
(a) Harvard discriminated against her on the basis of a perceived
mental disability (depression) by subjecting her to a more rigorous
examination schedule than it applied to other students; and (b)
Harvard failed to accommodate her actual physical disability
(asthma) by rescheduling the exam outside of "asthma season."
The district court granted summary judgment on the grounds
that Goldstein's lawsuit was initiated outside the three-year
statute of limitations,1 and, in the alternative, Harvard was
entitled to summary judgment on the merits. The court subsequently
denied Goldstein's motion to amend judgment under Fed. R. Civ. P.
59(e). Goldstein challenges the grant of summary judgment in
Harvard's favor and the denial of her Rule 59(e) motion. She also
challenges the denial of a motion to compel answers to
1
Since the ADA does not contain a statute of limitations,
courts borrow the most analogous state statute of limitations.
See, e.g., Gaona v. Town & Country Credit, 324 F.3d 1050, 1055-56
(8th Cir. 2003). In the instant case, the district court borrowed
Massachusetts' three-year statute of limitations for personal
injuries, Mass. Gen. Laws ch. 260, § 2A. Goldstein makes no
argument that this was error.
interrogatories seeking the names of graduate students permitted to
enter their sixth year of graduate study without having passed the
general examination. For the following reasons, we affirm.
Summary judgment is proper "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." Fed.R.Civ.P. 56(c). We review the
grant of summary judgment de novo, construing the evidence in the
light most favorable to Goldstein. See Stewart v. Dutra Const. Co.
Inc., 343 F.3d 10, 13 (1st Cir. 2003). We may affirm the district
court's decision on any sufficient ground revealed by the record.
Rodriquez v. Smithkline Beecham,
224 F.3d 1, 5 (1st Cir. 2000).
Goldstein argues that her claim of discrimination based on a
perceived (mental) disability is equitably tolled because, although
she knew in 1993 that certain Harvard faculty members viewed her as
"anxious," she did not learn that they believed her to suffer from
a mental problem rising to the level of a disability until March
1997 when she first obtained a copy of a June 1993 letter written
by her thesis advisor expressing concerns that Goldstein was
"seriously depressed" and that she might be at risk to herself or
others. To support this tolling argument, Goldstein moves to
supplement the record with a personal affidavit attesting to the
date of discovery of the June 1993 letter.
Goldstein failed to make this equitable tolling argument,
however, in her opposition to Harvard's motion for summary
judgment, and, thus, she has forfeited it.2 See, e.g., Landrau-
Romero v. Banco Popular de Puerto Rico, 212 F.3d 607, 612 (1st Cir.
2000) (refusing to consider equitable tolling argument that was not
seasonably raised in district court). Indeed, we think that the
district court could properly conclude that Goldstein abandoned her
perceived disability theory at summary judgment. Under the
circumstances, we need not address the request to supplement the
record. We add that, in any event, the evidence of record, viewed
in the light most favorable to Goldstein, failed to create a
material issue of fact as to whether a perceived disability was the
impetus behind Harvard's adverse action. Goldstein's examination
schedule was set and she was told that she would not be allowed to
register in the fall without satisfying this requirement prior to
a meeting, referenced in the June 1993 letter, which prompted the
advisor's concerns.
Goldstein also makes various equitable tolling arguments with
respect to her claim that Harvard failed to accommodate her actual
condition of asthma, including an argument that the claim did not
accrue until 1998 when the condition was first diagnosed. We need
not reach these tolling arguments because the claim fails on the
merits essentially for the reasons stated by the district court.
The operative provision, 42 U.S.C. § 12182(b)(2)(A)(ii),
2
Contrary to Goldstein's suggestion, we do not think that
Harvard's motion for summary judgment was limited to her claim of
failure to accommodate an actual (physical) disability.
"require[s] a person with a disability to request a reasonable and
necessary modification, thereby informing the operator of a public
accommodation about the disability." Dudley v. Hannaford Bros.
Co., 333 F.3d 299, 309 (1st Cir. 2003). Goldstein's August 20,
1993 letter does not meet this requirement.3
As for Goldstein's challenge to the discovery ruling, we
observe that "[t]he management of pretrial discovery lies primarily
within the sound discretion of the district court" and "[t]his
court 'will intervene in such matters only upon a clear showing of
manifest injustice, that is where the lower court's discovery order
was plainly wrong and resulted in substantial prejudice to the
aggrieved party.'" United States Steel v. M. DeMatteo Constr. Co.,
315 F.3d 43, 53 (1st Cir. 2003) (internal citations omitted).
Goldstein has not met this test. We agree with the district court
that the discovery sought would not materially aid Goldstein's
3
Although the letter referred to an incident, two weeks
earlier, in which Goldstein suffered from impaired vision, there
was no suggestion that the problem interfered with her ability to
take the examination, much less any information that would put
Harvard on notice that she had a disability within the meaning of
the ADA that required accommodation. Cf. Estades-Negrani v.
Assocs. Corp. of North America, 2003 WL 22244952 at *5 (1st Cir.
2003) (affirming grant of summary judgment under Title I of the ADA
where plaintiff had not been diagnosed with a disability at the
time she sought a reduced workload or an assistant and employer did
not know she was disabled); Reed v. LePage Bakeries, Inc.,
244 F.3d
254, 260 (1st Cir. 2001) (affirming grant of summary judgment under
Title I of the ADA where, inter alia, plaintiff never adequately
put employer on notice of her disability and need for
accommodation); Wynne v. Tufts Univ. Sch. of Med.,
976 F.2d 791,
795 (1st Cir. 1997) (indicating that to be liable under the
Rehabilitation Act, a school must know or be reasonably expected to
know of student's handicap).
claim that Harvard failed reasonably to accommodate an actual
disability. To the extent that the information sought might
conceivably be relevant to Goldstein's perceived disability claim
(and we do not decide this issue), she suffered no prejudice given
the forfeiture of her equitable tolling argument.
Goldstein makes no separate argument directed at the denial of
her Rule 59(e) motion. In any event, upon review of the record we
find no abuse of discretion. See Rivera v. Puerto Rico Aqueduct &
Sewers Author., 331 F.3d 183, 192 (1st Cir. 2003) (abuse of
discretion standard). The motion essentially repeated arguments
already made in Goldstein's opposition.
Affirmed.
