Lead Opinion
Brian Vinson (“Vinson”) filed suit against Alice Thomas (“Thomas”) and the State of Hawaii Department of Labor and Industrial Relations (“DLIR”) (collectively “the defendants”) claiming they denied him vocational rehabilitation services in violation of his rights under Title II of the ADA and section 504 of the Rehabilitation Act. The district court granted summary judgment in favor of the defendants. Vinson appeals.
Consistent with our recent decision in Douglas v. California Department of Youth Authority,
Vinson’s claims against the individual defendant, Thomas, were asserted under 42 U.S.C. § 1983. The only § 1983 claim preserved in this appeal is the claim that, acting in her individual capacity, Thomas violated Vinson’s federal rights under the ADA and the Rehabilitation Act. We conclude Vinson may not pursue a section 1983 claim against Thomas in her individual capacity for her alleged violation of either the ADA or the Rehabilitation Act, and thus we affirm the district court’s summary judgment in favor of Thomas.
I
In August 1993, Vinson injured his neck and back while working for a flooring company. He received workers’ compensation benefits, including vocational rehabilitation benefits paid for by his employer’s workers’ compensation carrier. The insurance carrier contracted with Intracorp, a private contractor, to develop and manage a vocational rehabilitation plan for Vinson.
Vinson told Boddy that he had dyslexia. Boddy adjusted her testing to accommodate Vinson’s self-reported dyslexia by giving him both the General Aptitude Test Battery (GATB) and Non Reading Aptitude Test Battery (NATB). After this testing, Boddy believed that a two-year college program would be an important element of Vinson’s vocational rehabilitation, and that he could succeed in such a program so long as he received “some special assistance such as a note taker, tape recorder, or consideration for extra time on tests.” Boddy further indicated that it might take Vinson “longer than average” to complete a two-year college program and that Vinson would “have to be a very serious and dedicated student to accomplish his goal.”
In the spring of 1995, Vinson enrolled at Honolulu Community College (“the college”) where he attended classes through the summer of 1996. Vinson took only 9 units per semester, rather than the customary 12. Nonetheless, the college considered him to be a full-time student because of his long-standing history of a learning disability. Throughout this period, his employer’s workers’ compensation carrier, under no obligation to do so, voluntarily paid for Vinson’s schooling as part of his vocational rehabilitation.
In April 1996, Intracorp sought approval from the DLIR of a State-funded rehabilitation plan for Vinson that would provide him with a two-year community college education with accommodations for his dyslexia, including a reduced courseload and the use of computer hardware and software. Initially, DLIR representatives told Intracorp that Vinson had to take at least 12 units per semester, which the college considered full-time. Although he preferred to,take only 9 units per semester, Vinson indicated he would be willing to attempt 12 units so long as the State provided him with appropriate computer hardware and software for persons with dyslexia.
Soon thereafter, Alice Thomas, the vocational rehabilitation supervisor at the DLIR, decided that Vinson should take not just 12, but 15 units per semester so that he would complete the college program sooner. She also stated that he had to demonstrate he could meet “competitive standards,” as measured by a 15 credit courseload, so that the DLIR would be assured that he could work and compete in an average labor market once his schooling was completed.
At this point, Vinson’s workers’ compensation attorney got involved. He sent a letter to Intracorp and to Alice Thomas at the DLIR formally requesting that Vinson be permitted to take 9 units per semester and be provided with an appropriate computer. Thomas, however, remained of the view that Vinson required neither a reduced courseload nor a special computer. She also was not persuaded that he suffered from dyslexia. Thus, by letter dated July 12, 1996, Thomas asked Vinson’s attorney to submit “any and all medical information (to include but not limited to diagnoses and limitations) regarding [Vinson’s] unrelated disability.”
Thomas responded by letter on July 26, 1996 clarifying that she needed the following documentation regarding Vinson’s claim of disability:
1. Verifiable, medical/psychological evidence establishing a disability exists (diagnosis, test scores, etc.,)
2. Specific physical/psychological limitations (medically established) experienced by your claimant.
3. The credentials and reports of the experts referred to in your previous correspondence who, based on said limitations, identified appropriate accommodations. (Emphasis in original.)
On July 30, 1996, Vinson’s attorney sent Thomas another letter stating that he would try to provide the information requested, but that the diagnostic “evidence” sought by the DLIR probably did not exist. On August 2,1996, Thomas responded by letter stating that the only evidence in the program file that Vinson had dyslexia was his own self-report. She further clarified her request for information:
For guidance as to what evidence is needed the Diagnostic and Statistical Manual addresses diagnostic criteria. Providing us with diagnosis, psychological/physical limitations, and current medical status (defined as stability of limitations) may allow us to identify reasonable accommodations at HAR 12-14-5(a)(4) or at least clarify the need to revisit HAR 12-14-5(a)(3).
For the record, your claimant’s request to take nine credits a semester rather than meet the competitive standard of fifteen, would represent a 75% increase in plan duration.
Thomas placed Vinson’s rehabilitation case in suspended/interrupted status for 60 days to allow him time to submit the additional information requested.
On September 26, 1996, shortly before the 60 day suspension was to expire, the learning disability specialist, Lynne Douglas, sent Gina Eustaquio, the Intracorp disability specialist who was managing Vinson’s vocational rehabilitation plan, a summary report that contained extensive information regarding Vinson’s diagnostic, academic, and behavioral history, his vocational rehabilitation testing, his progress at the college, and his current status. Attached to Douglas’s report was a one-page Individualized Education Program Plan for Vinson dated June 12, 1979, showing that he had been placed in full-time learning disability classes in elementary school as a result of “psychological and educational data.” Douglas noted that Vinson had been diagnosed with a learning disability early in his schooling, and had been served as a person with a learning disability throughout his education.
Based upon Douglas’s report, and considering the accommodations provided to Vinson by the college, Ms. Eustaquio be
Because Vinson had failed to provide what Thomas considered to be sufficient information to support his asserted disability, she instructed Eustaquio to prepare a closure report. Thomas also stated that even if Vinson were to attempt to carry 15 units per semester (which he was willing to try), she would still not approve a rehabilitation plan for him, because he had submitted evidence that due to his asserted dyslexia he could only handle 9 units per semester. Thomas refused any further extensions of time to explore alternatives. Thus, Vinson’s case was closed as “not feasible” and his request for State-funded rehabilitation schooling was denied.
Vinson then filed suit under Title II of the ADA and section 504 of the Rehabilitation Act.
The district court granted summary judgment in favor of the DLIR and Thomas. Vinson timely appealed. We have jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in part, and remand for further proceedings.
II
We first address the DLIR’s contention that it is protected from suit on Vinson’s Rehabilitation Act claim by sovereign immunity under the Eleventh Amendment. This argument is foreclosed by out-recent decision in Douglas. In that case, we reaffirmed, following the Supreme Court’s decision in Board of Trustees v. Garrett,
III
We review a grant of summary judgment de novo. Thornton v. McClatchy Newspapers, Inc.,
Vinson argues that the DLIR discriminated against him by refusing to approve (or consider in good faith) a rehabilitation plan that included reasonable accommodations for his dyslexia. He contends he is disabled according to 28 C.F.R. § 35.104 and 29 C.F.R. § 1615.103 as a person with an impairment (dyslexia) which substantially limits the major life activity of learning. The district court did not determine whether Vinson was disabled as a result of his dyslexia. Instead, the court determined that the DLIR was entitled to require Vinson to submit a diagnosis of dyslexia from a qualified medical professional, and he had not done so. Because he had not, the district court determined that Vinson had not provided the DLIR with sufficient proof that he suffered from dyslexia, the alleged impairment upon which his claim depended. The district court also determined that Vinson’s requested vocational rehabilitation services had been denied for reasons other than his asserted disability.
Whether Vinson met the statutorily defined requirements to establish that he was disabled under the Rehabilitation Act requires a fact specific inquiry into (1) whether he suffered from dyslexia, and if so (2) whether his dyslexia was an impairment
Vinson did not provide a medical professional’s diagnosis of dyslexia. He did provide, however, a sworn statement from his learning disabilities expert, Barbara Bate-man, Ph.D., J.D.,
(A) reading achievement, as measured by individually administered standardized tests of reading accuracy or comprehension, is substantially below that expected given the person’s chronological age, measured intelligence; (B) the disturbance in Criterion A significantly interferes with academic achievement or activities of daily living that require reading skills; and (C) if a sensory deficit is present, the reading difficulties are in excess of those usually associated with it.
Dr. Bateman reviewed Lynne Douglas’s September 26,1996 letter and found that it
Vinson also presented evidence that his dyslexia substantially limited a major life activity — learning. See 28 C.F.R. § 35.104 (2001) (defining “major life activity” to include learning). He provided:
A letter from the college indicating that because of his dyslexia he required extra study time;
Douglas’s letter citing the GATB and NATB testing data from rehabilitation specialist Barbara Boddy, which Douglas believed demonstrated significant discrepancies between Vinson’s performance on the written and non-written tests in the areas of spelling, language, and numerical abilities;
Douglas’s letter showing an historical disparity in Vinson’s testing data, his need to “read things over several times to comprehend what he is reading,” and his need for a substantial amount of extra time to complete exams; and Excerpts from the Intake Questionnaire completed by Vinson for Douglas, showing significant writing and spelling deficiencies.
Based upon all of the foregoing evidence which was presented to the district court, we conclude genuine issues of material fact exist as to whether Vinson has dyslexia and whether, if he does, his dyslexia is an impairment that substantially limits his ability to learn. Summary judgment was inappropriate on these disability issues. See Mustafa v. Clark Co. Sch. Dist.,
A public agency may require reasonable evidence of a disability before providing accommodations. See Weinreich v. Los Angeles County Metro. Transp. Auth.,
Because there is a genuine issue of material fact as to whether Vinson is disabled within the meaning of the Rehabilitation Act, and whether he sufficiently demonstrated such disability to the DLIR, the next question we consider is: Assuming Vinson is disabled, did the DLIR fail to provide a reasonable accommodation for his disability? The parties did not raise the reasonable accommodation issue in the district court, and that court did not consider the issue because it concluded Vinson had not submitted to the DLIR sufficient evidence that he was disabled.
A failure to provide reasonable accommodation can constitute discrimination under section 504 of the Rehabilitation Act.
A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.
28 C.F.R. § 35.130(b)(7) (2001).
The question whether a particular accommodation is reasonable “depends on the individual circumstances of each case” and “requires a fact-specific, individualized analysis of the disabled individual’s circumstances and the accommodations that might allow him to meet the program’s standards.” Wong v. Regents of the Univ. of Cal.,
If Vinson is disabled, the DLIR also had a duty to engage in an interactive process to consider his requested accommodations. As we have explained in the context of our employment cases, once the need for accommodation has been established, there is a mandatory obligation to engage in an informal interactive process “to clarify what the individual needs and identify the appropriate accommodation.” Barnett v. U.S. Air, Inc.,
Because the district court determined that Vinson failed to establish that he is disabled, it did not consider whether the DLIR had engaged in an interactive process in good faith, whether Vinson’s requested accommodations were reasonable, whether the proposed aecommoda-
IV
In addition to suing the DLIR, Vinson sued Thomas under 42 U.S.C. § 1983, in both her individual and official capacities. The district court determined that neither the DLIR nor Thomas in her official capacity were proper defendants under 42 U.S.C. § 1983. Vinson does not appeal that decision. Therefore, we address only the propriety of Vinson’s § 1983 claim against Thomas in her individual capacity. As to that claim, the federal laws Vinson alleges Thomas violated are Title II of the ADA and section 504 of the Rehabilitation Act.
Section 1983 does not confer rights, but instead allows individuals to enforce rights contained in the United States Constitution and defined by federal law. See Buckley v. City of Redding,
We have not heretofore considered whether a public official can be sued in his or her individual capacity under 42 U.S.C. § 1983 predicated upon alleged violations of the ADA or the Rehabilitation Act.
In Alsbrook v. City of Maumelle,
We find the reasoning of our sister circuits persuasive. We therefore join the Fifth, Eighth, and Eleventh Circuits and hold that a plaintiff cannot bring an action under 42 U.S.C. § 1983 against a State official in her individual capacity to vindicate rights created by Title II of the ADA or section 504 of the Rehabilitation Act. Vinson’s claim against Thomas in her individual capacity under 42 U.S.C. § 1983 fails.
V
In sum, we conclude that, by accepting federal Rehabilitation Act funds, the DLIR waived its Eleventh Amendment immunity as to Vinson’s claim under section 504 of the Rehabilitation Act. That claim, therefore, is not precluded by the DLIR’s sovereign immunity. Vinson has raised genuine issues of material fact on the questions whether he was disabled, whether he presented sufficient evidence of his disability to the DLIR, whether the DLIR failed to engage in good faith in the required interactive process, and whether the DLIR wrongfully refused his request for reasonable accommodation. The district court’s summary judgment in favor of the DLIR on Vinson’s claim under section 504 of the Rehabilitation Act is reversed.
Vinson may not proceed against Thomas in her individual capacity on his claim under 42 U.S.C. § 1983, predicated upon her alleged violation of Title II of the ADA and section 504 of the Rehabilitation Act, because that claim is barred by the comprehensive remedial scheme of those Acts. The district court’s summary judgment in favor of Thomas in her individual capacity on that claim is affirmed.
AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.
Notes
. At oral argument, Vinson waived any separate claim against the DLIR under Title II of the ADA, content to rely on analogous rights and remedies under section 504 of the Rehabilitation Act.
. Vinson’s expert recommended that he be provided with a laptop computer equipped with voice recognition software, to assist him in taking notes and preparing assignments.
. Thomas arrived at her figure of 15 units per semester by dividing the total units required to complete the A.S. degree sought by Vinson (60 units), by the total number of semesters ordinarily taken to complete the degree (4 semesters).
.Apparently "unrelated” referred to the fact that Vinson’s dyslexia was unrelated to his workplace injury.
. Vinson also raised a claim under 42 U.S.C. § 1983 for the alleged violation of his procedural and substantive due process rights under the Fourteenth Amendment and a claim under Hawaii Revised Statutes Chapter 386. The district court dismissed these claims, and Vinson does not challenge that dismissal in this appeal.
. Mental and physical impairments are defined to include "specific learning disabilities.” 28 C.F.R. § 35.104.
. We examine cases construing claims under the ADA, as well as section 504 of the Rehabilitation Act, because there is no significant difference in the analysis of rights and obligations created by the two Acts. Zukle v. Regents of the University of California,
.The defendants objected to Bateman's declaration based upon a failure to timely disclose her report according to the court’s scheduling order. The district court did not rule on the defendants’ objections, and did not strike the declaration from the record. Therefore, it is a part of the record before us.
. The district court also determined that Vinson had failed to show that the requested vocational rehabilitation services were denied solely because of his disability. Vinson’s claim that the DLIR failed to modify its policies to reasonably accommodate his dyslexia, however, does not require such a showing. See Humphrey v. Memorial Hospitals Ass’n,
. Vinson also bears the initial burden of demonstrating that, with reasonable accommodations, he is otherwise qualified to participate in the DLIR's vocational rehabilitation services. Wong,
. Vinson's individual capacity claim against Thomas does not implicate the State’s sovereign immunity under either the ADA or the Rehabilitation Act.
. In Duvall v. County of Kitsap,
. The district court granted summary judgment in favor of Thomas in Vinson's § 1983 action on the ground that she was entitled to qualified immunity. We do not reach the qualified immunity issue.
Dissenting Opinion
dissenting:
I respectfully dissent from Part III of the majority’s determination that Brian Vinson’s claim of disability discrimination against Hawai’i should survive summary judgment. Indeed, if I were writing on a clean slate, I would not even reach the merits of his claim because I believe Ha-
I
For over a century, the Supreme Court has taught us that federal jurisdiction over suits against unconsenting States “was not contemplated by the Constitution when establishing the judicial power of the United States.” Hans v. Louisiana,
A
I recognize, however, that we have recently reaffirmed that by accepting federal funds under the Rehabilitation Act, 29 U.S.C. § 794, a State waives its sovereign immunity from suits by individuals in federal court. Douglas v. Cal. Dep’t of Youth Auth.,
B
Vinson waived reliance on Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., at oral argument. While I agree that this was a wise choice considering the clear holding and import of Garrett,
Since Title II is no longer an issue in Vinson’s appeal, I simply note that Ha-son’s holding conflicts with no fewer than five of our sister circuits who have reconsidered the issue in light of Garrett. See Reickenbacker v. Foster,
II
Of course, if Hawai’i’s sovereign immunity prevents it from being haled into federal court for an alleged violation of the ADA or Rehabilitation Act, we would have no occasion to reach the merits of Vinson’s claim. Accepting the majority’s recital of our current law of sovereign immunity in Part II, however, the majority still errs in Part III by reversing the district court’s grant of summary judgment.
A
To qualify as a disabled individual under the Rehabilitation Act, Vinson must establish that he has an impairment that substantially limits at least one of his major life activities. 42 U.S.C. § 12102(2); 29 U.S.C. § 791(g).
While interpretative regulations include “learning” as a major life activity, 29 C.F.R. § 1630.2(i),
In short, dyslexia does not render an individual disabled per se for purposes of the Rehabilitation Act.
B
It is not enough for Vinson to establish post hoc that he has an impairment that substantially limits the major life activity of learning. Rather, because his suit is based upon the Department of Labor and Industrial Relations’s (“the Department”) initial failure to accommodate his disability, he must establish that he presented sufficient proof of his disability to the Department. Indeed, a public entity does not violate the law by refusing to accommodate individuals who cannot establish that they have disability that qualifies them for an accommodation.
Thus, it is important to focus on the information that the Department — -particularly Alice Thomas, Director of the Vocational Rehabilitation Branch — had at the time it decided to close Vinson’s file in October 1996. For that reason, the sworn statement of Vinson’s learning disabilities expert, Barbara Bateman, cited by the majority, supra at-, is immaterial to the question of what the Department knew; she prepared her statement well after the department closed Vinson’s file. The Department did have a September 26, 1996 letter from C. Lynne Douglas, a learning disability specialist, that Vinson argues is the definitive letter that should have satisfied the Department that his dyslexia substantially limited his ability to learn.
However, Douglas herself admitted that her letter was not meant to be a diagnostic report. When asked in her deposition whether her letter was a “diagnosis of a learning disability,” she replied, “It was not, and it was never intended to be one.” Indeed, she did not complete her diagnostic tests until February 1997, months after Vinson’s file had been closed. Later in her deposition, Douglas testified that her report was not intended to meet the “diagnostic criteria outlined in [her own] attached guidelines.” However, she asserted that “most specialists in the field” would, “without a doubt,” believe that her letter demonstrated “overwhelming and convincing evidence that [Vinson] would or did have a diagnosis of dyslexia.” (emphasis added).
How can an assertion that Vinson would have a diagnosis of dyslexia — if he ever was diagnosed — constitute sufficient evidence of a disability? Second, even if a specialist might be able to decipher from Douglas’s 19 page letter that Vinson had a diagnosis of dyslexia, it is unreasonable to ask an untrained person to connect those same dots. Vinson’s own expert witness, Bateman, accused Thomas of lacking “the knowledge or expertise to determine
Vinson argues that the Department was requesting information that did not exist. However, Douglas herself eventually did complete diagnostic tests, and she also asserted that a specialist could have diagnosed Vinson’s dyslexia from her November 1996 letter. Indeed, a specialist in connection with this litigation — namely, Bateman — did in fact review Douglas’s letter and conclude that Vinson was dyslexic. This is precisely the information the Department sought, and Douglas’s and Bate-man’s own sworn statements prove that it was readily available.
While acknowledging that the Department is entitled to ask an individual for more information regarding his disability, Weinreich v. Los Angeles County Metro. Transp. Auth.,
Denying public agencies who provide important, but finite, services the ability to request specific documentary support of an individual’s disability risks creating a system ripe for abuse. Therefore, I cannot fault the Department for seeking an actual diagnosis of dyslexia before the State expended funds on Vinson’s behalf.
C
In any event, even if Vinson had established that he is disabled, he must show that the Department closed his file solely because of his disability. Zukle v. Regents of the Univ. of Cal.,
In Weinreich, we held that Los Ange-les’s transit system did not discriminate on the basis of disability by requiring updated certification of a rider’s disability before he qualified for its Reduced Fare Program.
Thus, I agree with the district court that even if Vinson established his disability, he failed to show that the Department closed his file because of it.
Ill
I cannot agree that the district court erred by granting summary judgment on Vinson’s disability discrimination claim. Despite the opportunity and repeated requests for clarification, Vinson did not submit a clear diagnosis of dyslexia. Of course, if our caselaw were consistent with the Supreme Court’s teachings, the merits of Vinson’s claim would present a question without need of an answer because the constitutional sovereignty and dignity Ha-wai’i enjoys as a State would bar Vinson’s suit against it.
I respectfully dissent.
. Title I prohibits employment discrimination against qualified individuals on the basis of their disability, 42 U.S.C. § 12112, and Title II prohibits discrimination in the provision of public services and programs, 42 U.S.C. § 12132.
. Garrett’s reasoning regarding the ADA undoubtedly invalidates the Rehabilitation Act’s attempt to abrogate sovereign immunity as well. See Reickenbacker,
. Vinson does not argue that he has either a record of an impairment or was regarded as having an impairment.
. Because Congress gave no agency the authority to issue regulations implementing generally applicable provisions of the ADA-particularly the authority to interpret the term
. This was demonstrated by the fact that Eus-taquio requested no fewer than four times that Vinson sign a release allowing his high school records to be sent to her; he refused each time.