Troy Beemer v. UNIVERSITY OF SOUTHERN CALIFORNIA and DOES, 1-10

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TROY BEEMER,
Plaintiff-Appellant,
v.
UNIVERSITY OF SOUTHERN
CALIFORNIA and DOES, 1-10,
Defendants-Appellees.
No. 17-56573
D.C. No.
2:15-cv-01458-CAS-SS
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Submitted March 4, 2019**
Pasadena, California
Before: KLEINFELD, Circuit Judge, COLE, *** Chief Judge, and NGUYEN,
Circuit Judge.
Troy Beemer appeals the district court’s grant of summary judgment in favor
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable R. Guy Cole, Jr., United States Chief Judge for the
Sixth Circuit Court of Appeals, sitting by designation.
FILED
MAR 6 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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of the University of Southern California (“USC”) on Beemer’s claim that USC
failed to reasonably accommodate his disabilities under the Americans with
Disabilities Act, 42 U.S.C. § 12132; the Rehabilitation Act, 29 U.S.C. § 794; and
the Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq. We have jurisdiction
under 28 U.S.C. § 1291 and affirm.
To establish a prima facie case of disability discrimination, Beemer must
show that (1) he is disabled, (2) he is “otherwise qualified,” to remain at USC,
meaning that he “can meet the essential eligibility requirements [] with or without
reasonable accommodation,” (3) he was dismissed “solely because of [his]
disability,” and (4) USC “receives federal financial assistance (for the
Rehabilitation Act claim), or is a public entity (for the ADA claim).” Zukle v.
Regents of Univ. of Cal., 166 F.3d 1041, 1045 (9th Cir. 1999). Professional
schools are not required to “lower or to effect substantial modifications of
standards” to accommodate a person living with a disability. Se. Cmty. Coll. v.
Davis, 442 U.S. 397, 413–14 (1979) (holding that nursing school lawfully denied
admission to applicant with hearing impairment).
Here, construing the facts in the light most favorable to Beemer, see Bravo
v. City of Santa Maria, 665 F.3d 1076, 1083 (9th Cir. 2011), we hold that the
district court properly granted summary judgment to USC. As the district court
concluded, USC never dismissed Beemer from the Nurse Anesthetist program.

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Rather, Beemer chose not to return following a medical leave of absence.
Beemer’s prima facie case fails because the third element—that he was dismissed
due to his disability—was not met.
Beemer’s argument that he was constructively dismissed from the program
is unsupported by the evidence. But even assuming that Beemer was
constructively dismissed, his claims would nevertheless fail because he was not
otherwise qualified for the program despite receiving reasonable accommodations
from USC, which included allowing Beemer to take time off, leave clinical sites
early in order to have extra time to prepare patient care plans, delay completion of
mandatory clinical training, and receive extra time for examinations. Despite these
accommodations, Beemer performed poorly. While enrolled in the classroom
portion of the program, he repeatedly failed to attend class, was unresponsive to his
team member for a major group presentation project worth forty percent of the
course grade, was unresponsive to the course instructor and program director, Dr.
Gold, and then ultimately turned in a paper that did not meet the assignment
criteria and entirely failed to give the required presentation. Beemer was placed on
academic probation but failed to comply with the terms of the probation contract.
Beemer faults USC for denying other requested accommodations. However, USC
properly denied additional accommodations because they would require substantial
modifications of the program’s standards.

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AFFIRMED.

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