Opinion
No. 11–P–1078.
2012-05-22
Izzeldin ELTIGANI v. NORTH SHORE COMMUNITY COLLEGE.
By the Court (GRAHAM, VUONO & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Proceeding pro se, Izzeldin Eltigani, a hearing-impaired student, commenced this action against North Shore Community College (college), raising Federal claims of disability and retaliatory discrimination under the Americans with Disabilities Act (ADA). Ruling on cross motions, a judge denied Eltigani's motion for partial summary judgment and allowed the college's motion for complete summary judgment. We affirm.
The legal basis of Eltigani's claims is difficult to discern from his complaint. The judge interpreted the complaint to state claims under Titles II and V of the ADA, 42 U.S.C. § 12132 and § 12203 (2000). On appeal, Eltigani also cites to the Federal Rehabilitation Act of 1973, § 504, as amended, 29 U.S.C. § 794 (2000). See Darian v. University of Mass., 980 F.Supp. 77, 84 (D.Mass.1997) (noting law developed under the Rehabilitation Act may be applicable to Title II claims). Even assuming Eltigani brought his claims under both statutes, the result we reach is the same.
As matter of law, the college fulfilled its reasonable accommodation duties by providing Eltigani with a qualified note taker and a monitor on June 4, 2007, and June 6, 2007, in lieu of Eltigani's absent communication access real-time translation (CART) reporter. See Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 793 (1st Cir.1992), cert. denied, 507 U.S. 1030, 113 S.Ct. 1845, 123 L.Ed.2d 470 (1993); Darian v. University of Mass., 980 F.Supp. 77, 88 (D.Mass.1997). As the judge noted, the interruption in the CART provider services was short-lived, originating in the unavailability of the reporter, and not in a unilateral termination of previously agreed-upon services. Eltigani advanced no significant probative evidence that the college's reason for failing to provide a CART reporter (inability to secure one on short notice) on these two days was pretextual or asserted in bad faith. Eltigani's unsubstantiated conclusions were inadequate to stave off summary judgment on this claim. See Wynne v. Tufts Univ. Sch. of Med., 976 F.2d at 796.
In his brief, Eltigani challenges the college's use of the affidavit of Pamela Nolan Young, its 504 coordinator, to support its claim that retaining the services of a substitute CART reporter would have imposed an undue financial burden upon it. However, Young's affidavits do not reflect any of the statements attributed to her by Eltigani.
The judge properly ruled that Eltigani could not show that the refusal to continue CART transcript services (begun without the college's authorization) violated the college's accommodation duties under Title II. During his entire tenure at the college, Eltigani received a significant number of accommodations for his disability, many of which went unutilized. Although the college approved CART reporter services for Eltigani, it never officially authorized the release of transcripts, which, under college guidelines, Eltigani had agreed, belonged to the college. As Eltigani acknowledged, the college's duty to accommodate was a continuing one. Assuming the college was put on notice at some point that he was receiving transcripts from his first CART reporter, the college was entitled to reevaluate the accommodations being provided when Eltigani demanded the resumption of transcript services cut off by a subsequent CART reporter.
The undisputed facts of record established that the college's disability services team considered and rejected the transcript accommodation request as unnecessary in light of the approved services already in place (a CART reporter supplemented with a note taker), and justifiably concluded that accommodating Eltigani further with verbatim transcripts of each class would potentially result in an unfair advantage for Eltigani, lowering the academic standards or unduly impacting its academic program. See Wynne v. Tufts Univ. Sch. of Med., 976 F.2d at 793–796. In these circumstances, the college satisfied the Wynne standard, and thus was entitled to summary judgment. See Darian v. University of Mass., 980 F.Supp. at 91 (although the university did not provide the student with every accommodation she wanted, the array of remedial measures provided satisfied the statutory duty of reasonableness).
We note that the college agreed to provide transcripts for the remainder of Eltigani's tenure at the college to settle Eltigani's complaint filed with the Office of Civil Rights (OCR) of the United States Department of Education.
Summary judgment was properly granted on Eltigani's retaliation claim, which was based upon the college's alleged severance of relations with him following his filing of an OCR complaint. First, Eltigani effectively gutted the heart of this claim by admitting in his response to the college's statement of undisputed material facts that throughout his attendance at the college, “various members of the college, including the disability service team, its director Susan Graham, as well as Pamela Nolan Young, the college 504 coordinator, remained in contact with the plaintiff.” See Rule 9A(b)(5) of the Rules of the Superior Court (2004); Godfrey v. Globe Newspaper Co., 457 Mass. 113, 121, 928 N.E.2d 327 (2010). Second, Graham and Young provided affidavits in which both averred to continual contact with, and assistance to Eltigani. By resting upon conclusory allegations, improbable inferences, and factual assertions unsupported by reference to appropriate summary judgment materials, Eltigani failed to raise any trial-worthy retaliation issues. See Wynne v. Tufts Univ. Sch. of Med., 976 F.2d at 796.
Any discrimination claims not addressed in Eltigani's appellate brief, as well as new arguments raised for the first time on appeal, are deemed waived. See Cariglia v. Bar Counsel, 442 Mass. 372, 379, 813 N.E.2d 498 (2004); Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 35 n. 1, 825 N.E.2d 522 (2005). After considering Eltigani's remaining arguments, we find them lacking in merit.
Judgment affirmed.